A.W.B. Simpson's "Legal Iconoclasts and Legal Ideals"

I recently heard of the passing of A.W.B. Simpson.  I never had the chance to meet him, to my regret, as he was a writer whom I admired -- one could sense in him deep learning, but always lightly expressed, and a powerful common law sensibility.

Perhaps readers will know some of his great books.  One of the best known (rightly so) is Cannibalism and the Common Law, a wonderful historical tour of the famous Dudley & Stephens case (and useful supplementary reading for criminal law teachers who like to talk about the choice of evils!).

But one of my favorite pieces of his is a little essay delivered as the 1989 Marx Lecture at the University of Cincinnati and published in its law review, with the title, "Legal Iconoclasts and Legal Ideals."  Unfortunately, the piece is only available to people with access to Westlaw, Hein, etc., but after the jump, I'll summarize what I enjoy about it.

In the piece, Simpson describes a long-standing contest in the history of legal thought -- that between the iconoclasts and the idealists -- iconoclasts being those who "smash and destroy images, icons, which those who favor icons regard as sacred things."  Sometimes the contest is erroneously regarded as having a watershed moment or definitive starting point, the point where the iconoclasts first deflated the idealist balloon.  The Rubicon seems to have been crossed with the coming of Critical Legal Studies, or with the arrival of Karl Llewellyn, Jerome Frank, and the other realists, or with the challenge of Holmes in The Path of the Law, or even (and this is as far back as people today tend to go) with the anti-common law crusade of Bentham.

But Simpson tells several stories that suggest the contest to be far older.  One is a bit for fun, but still interesting, and since my mother hailed from Bologna and it is a city that I've spent much of my life in, it was a pleasure to read it.  Simpson considers the etymology of the word, "baloney" -- meaning nonsense or something altogether false.  But why should this word be associated with the town, Bologna, an ancient center of learning and home of the very first law school in the world? (I set its usage as a revolting processed meat to the side -- yet another etymological mystery, as Bologna boasts the most delicious food in all of Italy).  Simpson's explanation:

There, back in the high middle ages, thousands of students flocked from all over Europe to hear the great Doctors of the Law . . . expound the rediscovered texts of Justinian's sixth century codification of ancient Roman law.  At once an explanation suggests itself -- "baloney" surely means legal twaddle.  A modern equivalent might be "Harvard-babble" . . . . It was indeed Langdell's "baloney" that Holmes mocked in the 1880s and 1890s. 

A perhaps more serious example of the perennial contest between iconoclastic and idealist forces came in 1345, when, as Simpson puts it,

the Justices of the Court of Common Pleas, sitting in Westminster Hall in London, fell to musing about the nature of the common law itself.  What provoked them was the fact that they were confronted with what Ronald Dworkin would today, using a rather curious terminology, call a hard case.  Counsel, one Thorpe, had raised the matter of how judges should discharge their function under the rule of law, arguing for respect for tradition; unless judges did as other judges had done in the past, nobody would know what the law was . . . . This provoked Justice Hillary, an early judicial iconoclast, if you like a medieval realist or “crit,”' to tell him: “Law,” he said, “is the will of the justices.”  This seems to have rather shocked another justice, by name Stonore, and he, using an emphatic form of nanyl, for this conversation took place in Norman-French, replied “Certainly not. Law is reason.”  There you have it: will or reason. The discussion was of course inconclusive, and has been going on ever since.

The contest between legal iconoclasm and legal idealism persists and while it does not take the same form in each successive generation of legal thinker, there is a comfort, a serenity, in knowing that it is as constant as the common law itself and that it is also the sort of contest that appears in many other fields of human endeavor: "Like cooking.  Yet it was, some would think, an understanding of the principles of la cuisine that enabled a chef, in trying conditions, to produce Chicken Marengo."

Because it is the kind of contest that nobody wins, it is also the type that shows "strong" advocates of either camp to be misled in similar ways by the nature of the fight: "Now, between the strong iconoclasts and the strong idealists there appears at first sight to be virtually nothing in common. Both are supposed to be talking about the same institution, the law, or perhaps more immediately the process of judicial decision, but they seem to see quite different things. Nevertheless it seems to me that both have in common the fact that they make much the same serious mistake about the nature of ideals, and much the same mistake about the relationship between human conduct and the concept of rationality."

The common mistake as to the nature of ideals is that they are absolute principles, never from which to be deviated, and that an inability or unwillingness to achieve them in their purest "principled" form means failure full stop and, for the iconoclasts, abandonment of the ideal.  But ideals, says Simpson, are

not incompatible with the acceptance of practical imperfection, nor even with accepting the impossibility or unreality of conceiving of the perfect attainment of the ideal . . . . It is characteristic of ideals that there is a value in conduct which tends towards their realization; ideals are unlike parachutes, which, at least in general, either work perfectly or are quite useless.

This is why both iconoclasts and idealists are mistaken, because the idealist sets up "as an ideal the notion of a perfect cohesion, and then, mistaking the nature of ideals, argues that ideals must in principle be attainable," while the iconoclast, sensing only the lack of cohesion, "adopts a theory which fails to address the degree of cohesion which there is[.]"

Both, says Simpson, seem mistaken to him, but that will not prevent a debate which began at least as early as the 14th century, and probably before, from perduring -- "much the same way as in the past."

A lovely essay, by a gifted and erudite writer, now sadly gone.