Book ReviewRecension critique

Seduction of a Law ProfessorReview of Allan C Hutchinson, Laughing at the Gods: Great Judges and How They Made the Common Law (Cambridge: Cambridge University Press, 2012), pp 328. ISBN 978-1-107-01726-9[Record]

  • Shauna Van Praagh

Associate Professor, Faculty of Law and Institute of Comparative Law, McGill University. A team research project, entitled “Gouvernance pédagogique dans l’enseignement du droit au Canada”, headed by Pierre Noreau and funded by the Social Sciences and Humanities Research Council of Canada, provided support for the teaching, research, and writing that inform this essay and for the much-appreciated research assistance of McGill law student Miriam Clouthier.

Citation: (2013) 59:1 McGill LJ 211

Référence: (2013) 59: 1 RD McGill 211

Why do judges receive so much attention—whether in law classrooms, in biographical works, or even in our collective psyche? They are not superhuman; they are not the only or even the principal creators of the rules that structure our lives; and they do not explicitly or freely choose the issues about which they have something to say. Indeed, the people whose stories lead them to court are crucial to the work of judges, as are the jurists who frame those stories and articulate the arguments that connect them to sources in law. And yet, as one of my students recently asserted in class, law professors in particular appear to be “seduced” by judges! That seduction is at the very core of Allan Hutchinson’s book, Laughing at the Gods: Great Judges and How They Made the Common Law—a book that showcases a deep fascination with judges and the ways in which they affect law and society. Hutchinson’s book reflects a double-pronged preoccupation: first, a preoccupation with “choosing” individuals who satisfy the criteria Hutchinson offers for being included on a shortlist of “great judges”, and second, a preoccupation with “musing” as to the contributions of these selected few to the creation and continuity of the common law. This “choosing and musing” project takes very seriously the task of selecting great judges and justifying that selection. At the same time, it promises avenues for ongoing reflection by law students, lawyers, and judges on what it means to participate actively in the content, form, and development of the common law. The book should provoke critical engagement with the notion of “greatness” and with the power of judicial voice and action—and this review essay underscores the importance of asking hard questions along this vein. But, for most readers, the tangible value of the book will resonate through their enjoyment of finding favourite and familiar faces and stories in the book’s pages, and of imagining responses to Hutchinson’s wide-ranging, immensely readable, and sometimes provocative remarks. As a long-time law professor and scholar, Hutchinson does appear seduced—by the very idea of greatness, by the judge’s potential to effect change, and by the personal stories and characters of the individuals who make up his “top eight” list of great judges. But he is not alone. In responding to his invitation to “laugh at the gods”, I explore the seriousness with which judges are treated, by Hutchinson himself and by law students, jurists, and law teachers more generally. I do so within a framework structured by three exercises undertaken by law students in the Advanced Common Law Obligations course I teach at McGill. In a course dedicated to examining the form and method of the common law, intertwined with selected substantive private law issues, judges receive careful attention. As illustrated by the exercises, they are named as principal actors in a legal tradition, expected to fulfill the requirements of a complicated job description, and subject to restraint even as they take risks. The students, like the readers of Hutchinson’s book, learn that it is crucial to pay attention to judges’ individual voices, to understand and appreciate the ways in which judges justify their decisions, and, finally, to enjoy themselves as they imagine conversations among judges across cases, courts, and contexts. The first session of “Advanced Common Law Obligations” is devoted to a quiz focused on the key historical, structural, and methodological aspects of the common law. Among questions that touch on writs, law French, the Inns of Court, and the case method as form of legal pedagogy, is the following: “Name three ‘great’ judges who have contributed to …