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Satirical Legal Studies: from the Legists to the Lizard

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Satirical Legal Studies: from the Legists to the Lizard Michigan Law Review Volume 103 Issue 3 2004 Satirical Legal Studies: From the Legists to the Lizard Peter Goodrich Benjamin N. Cardozo School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Law and Philosophy Commons, Law and Society Commons, Legal Profession Commons, and the Legal Writing and Research Commons Recommended Citation Peter Goodrich, Satirical Legal Studies: From the Legists to the Lizard, 103 MICH. L. REV. 397 (2004). Available at: https://repository.law.umich.edu/mlr/vol103/iss3/1 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. SATIRICAL LEGAL STUDIES: FROM THE LEGISTS TO THE LIZARD Peter Goodrich* ANALYTICAL TABLE OF CONTENTS INTRODUCTION .................... .............................................. ........ .... ..... ..... 399 I. FRAGMENTA ANTIQUITATIS (THE ENDURING TRADITION) .. 415 A. The Civilian Tradition .......................................................... 416 B. The Sermon on the Laws ......................... ............................. 419 C. Satirical Themes ....................... ............................................. 422 1. Personification .... ............................................................. 422 2. Novelty ........................................ ............... .. ................... 423 3. Ridicule .............. ........................................ .... ............ ...... 425 4. Criticism ........................................................................... 426 II. SATU RA RESARTUS (THE RE VIVAL OF SATIRE) ....................... 429 A. Allegory and Theater ............................................................ 429 B. Ad Hominem Arguments .......... ............... ............................ 432 C. Revolting Positions .................. ......................... ................. .... 440 D. Tones .... ................................................. ................................ 443 E. Conclusions ................................................................... .. ..... .. 446 Ill. TRAGEDY AND FARCE································································ 447 * Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. LL.B. 1975, University of Sheffield;Ph.D. (Legal Discourse). 1984, University of Edinburgh. - Ed. And with full and due acknowledgment to Charles Sullivan, Th e Under-Theorized Asterisk* Footnote, GEO. L.J. (forthcoming 2005) (on file with author) [available on SSRN]. In truth what we need, what is really missing, what science requires, what art desires but the law and economics types have overlooked, is a citation index exclusive to the asterisk footnote. It is here that you get the lowdown. These are the references that need to be counted, ranked, listed, and tabulated. These are the veridical marks of community, the unexpurgated indicia of affiliations, the slips that signal the form of life, the motive and the militating purpose. Here, just to digress a little, you will find the Garlands, the Sugarmans, the Sunsteins, the Rosenfelds, and Goodriches. A preponderance of sweet names. That is just a guess actually, and there will also be instances of less sweet Hughes and Criers. Either way, here is my contribution: And many and disparate thanks to David Carlson, Neil Duxbury, Justin Hughes, Brian Leiter, Stephanie Lysyk, Jessica Marshall, Richard Posner, Monroe Price, Pierre Schlag, Jack Schlegel, Scott Shapiro, Martin Stone, for a number of invaluable suggestions, erudite references, comments, and criticisms, whether intended or otherwise. Many thanks also to Keith Aoki, Duncan Kennedy, Jack Schlegel, and to Amy Shapiro for providing me with copies of now scarce samizdat materials. Thanks also to Chuck Yablon, Christine Harrington, Anton Schiltz, and Linda Mills for spirited discussion and contrary views of the value of satire. Especial thanks to Linda, corpus meum, for advising me on the morals of manners and the dangers of taking positions. I have listened attentively but occasionally, I admit, I have nonetheless gone my own errant way. 397 398 Michigan Law Review [Vol. 103:397 A. Th eater and Norm ......... .. .... ..... ............ ... ........................ ...... 447 B. Genres of Dialogue ... ........... .. .......... ........ .... .................. .... 450 C. The Figure of Hercules .......... .......... ........ ...... ........ ... ........... 452 D. Literary Criticisms of Law ............. ..... .. ....... ............ ............ 454 E. Critical Legal Studies and Beyond. ........................... ........... 457 F. The Lizard . .. .. ......... ....... ...... ..... ... ................. ... .... ............. .... 460 IV. THE SUBLIME AND THE RIDICULOUS ... .. ......... ..... ... ... .... ...... .. 465 A. The Legal Realists .... ... .. ... .. .. .... ... ......... ............................... 465 B. Trashing ..... ... .. .............. ... .... .................... .... ............... ..... 472 C. Book Reviews . ...... ... ... ............... .... ... .. ............. ..... .. .... ......... 476 V. ON BEING BAD AND GETTINGCRITICAL ....... .. .... ....... ..... .. ... .. 479 A. The Bad Man ......... ............. ....... ... .... ... ......................... ..... 479 B. The Unreasonable . ...... ................ ........ ........ .... ... ...... ... .. ... 482 C. Exiles . ..... ...... ...... ... ........... ............ .... ........... .............. ..... ...... 486 D. Critical Race Theories .... .. ........ .... ....... ........ ............. ..... ...... 490 VI. KYNICISM, SATIRISTS, AND CRITICS OF LAW . .................... ...... 497 A. Philosophy as a Way of Life . ............... .... .. ............ ... ......... 499 B. Humor as a Rhetorical Form .......... ....... .......... ....... ..... ...... 501 C. Anomalism as a Theory of Law ............. ....... ................ ..... 505 D. Hedonism as a Source of Law .................. ... ....... ... ....... 509 CONCLUSION: ON LIES··········································································· 512 Th e first case was called the other day before His Honour, Judge Twinfeet, who was attired in a robe of poplin green. He 'opened' that abstraction, the 'p roceedings', by expressing the hope that there would not be too much jargon. 'Justice is a simple little lady', he added, 'not to be overmuch besmeared with base Latinities. ' In the firstcase the plaintiffs sought a plenary injunction fo r trespass, a declaration of fiefin agro and other relief The defense was a traverse of the field as well as the pleadings and alternatively it was contended that the plaintiffs were estopped by graund playsaunce. Mr Juteclaw fo r the defendants, said that at the outset he wished to enter fo ur caveats in feodo. His statutory declarations were registered that morningand would be available fo r the plaintiffs on payment of the usual stamp duty. He asked fo r a dismiss. His Honour said that he observed that there was no Guard in court to prove certain maps and measurements. Th at was a serious matter; it showed disrespect to the court. Mr Juteclaw said there were no maps in the case; if the plaintiffs intended to produce maps, he was entitled to 18 days' clear notice and viaticum fo r engrossment. Mr Faix, fo r the plaintiffs, said he knew of no maps; he had received no instructions as to maps. December 2004] Satirical Legal Studies 399 His Honour said he would let the matter pass, but fo r the future it must be understood that there must be a Guard in court to prove maps; one never knew when a map would be produced, he added.1 INTRODUCTION Although it was clearly present in much of twentieth-century jurisprudence, and indeed was momentarily quite fashionable towards the fin de siecle, it never found its name, and it never quite came out on its own.2 Satirical legal studies will be defined initially as the humorous pillorying of the pretensions of law and lawyers.3 It is more than parody, burlesque, or simple humor, in that satire implies ridicule of folly and vices that have a social significance and ill effect.4 In the words of one early common law reformer, the end of "satyr ... is reformation,"5 and in this sense it has always been an important component in movements for abolition or change in the methods and practices of law. In the last century, satire played a varying yet visible 1. MYLES NA GOPALEEN (FLANN O'BRIEN), THE BEST OF MYLES 137-38 (1968) [hereinafter O'BRIEN, BEST OF MYLES]. 2. Satirical legal studies has almost entirely shunned the adjectival and has been expressed only in the practice. However, there are the occasional asides or footnotes. The one practitioner who was also a commentator on the genre is Karl Llewellyn, who calls attention to "one fascinating facet of modem Jurisprudence: the reintroduction into that field of satirical and ironical writing." Karl N. Llewellyn, On Reading and Using the Newer Jurisprudence, 40 COLUM. L. REV. 581 (1940) [hereinafter Llewellyn, On Reading], reprinted in KARL N. LLEWELLYN, JURISPRUDENCE 162 (1962). That, however, is about all he says, beyond referring to his own inspirations in Jonathan Swift, or the figure of Professor Tuefelsdrockh and his Heuschrecke, or philosophy of clothes, elaborated upon to exquisite effect in THOMAS
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