PERSONS AND MASKS OF THE LAW: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks by
Kirkus Star

PERSONS AND MASKS OF THE LAW: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks

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Since Roman times, Berkeley law professor Noonan demonstrates, the study of the law has emphasized the operation of principles, and aspiring lawyers have been taught to ignore such adventitious details as the humble parties through whom the principles were established. Both lawyers and citizens allow themselves to be conned into a facile reverence for the ""majesty"" or ""beauty"" or ""sublimity"" of the ""great and shining truths,"" in Cardozo's phrase, that august minds discern beyond ""the sordid controversies of the litigants."" Far from being precise and rigorous, Noonan insists, failure to take ""persons"" into account is as sloppy and evasive as a physicist's proclaiming the gospel about electricity with no contaminating reference to magnetism. As examples of the pseudo-impartiality conferred by ""masking"" personal realities, he cites four of the most honorable men who have ever practiced or written law. Jefferson and his great teacher George Wythe, rewriting Virginia's colonial slavery laws after independence, overcame their own objections to the ownership of human beings: ""they put on the masks of the law and imposed them on others."" Generations of law students have admired the ""clarity, symmetry, simplicity"" of Cardozo's opinion imposing costs in all courts on an impoverished plaintiff whose personal circumstances could of course be ignored. Holmes saw that law was not mere rules, but ""force controlled by rules""--yet was capable (in the United Fruit case) of sublimely ignoring the interests really at work in banana-dominated Costa Rica. Law will not shed its ""masks,"" Noonan suggests, until lawyers (and the rest of us) rethink the relationship of past to present realities so as to focus not on that vague abstraction the ""spirit of the law"" but on the human persons who have tried to embody worthy and abiding purposes in law. A hardy intellect, Noonan; his densely written, superbly thought out argument deserves the attention of everyone concerned about the web of fictions that constitutes a great deal of our law.

Pub Date: Jan. 5th, 1975
Publisher: Farrar, Straus & Giroux