Reviews for Years of the Sword: A Pictorial History, 1300-1485 - R. J. Unstead - Hardcover

The average rating for Years of the Sword: A Pictorial History, 1300-1485 - R. J. Unstead - Hardcover based on 2 reviews is 4 stars.

Review # 1 was written on 2020-12-21 00:00:00 Eric Kessler October 23, 2014 My reactions to reading Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks originally written for a Readings in Legal Thought Seminar with Judge D. Ginsburg of the U.S. D.C. Circuit Court of Appeals; Readings in Legal Thought – George Mason University School of Law Any attempt at a critical reflection on Persons and Masks of the Law by John Noonan must be undertaken with some degree of trepidation. For his is a text that deals with those areas of the law where individuals and discrete groups of peoples are shutout from justice by very operation of the system that is by design meant to establish justice and equality before the law. Indeed, it is hard to find fault in Noonan’s implicit admonishments undertaking the practice of law in a spirit of empathy and with an eye toward understanding the “moral ideals” that animate the law as held against to the “multiple contexts which enfold each [living person’s] experience”.[1] For all intents and purposes however, it is not at all clear what exactly we can do with Noonan’s rather amorphous admonishments. Moreover, taking the text as whole, and considering its implications vis-à-vis contemporary practice, it would seem that Noonan’s text is grounded in a ideology that views law as the principal means to effect societal change. Although there are many agreeable points made in the text, the focus of remainder of this reaction will consider three key difficulties that arise from considering Noonan’s account of The Palsgraf Case. 1. Rules as applied to persons: The Palsgraff Case and the Appellate Process As to Mrs. Palsgraff, I would rule in her favor if I could persuade my jurisdiction to accept the liability of a business enterprise for the injuries it generates as a routine byproducts of its business.[2] Judge Noonan’s nonchalant statement that he would find for Mrs. Palsgraff, contingent upon his being able to persuade his jurisdiction, is interesting; both for its subtle equivocation as to whether Justice Holmes made the right call in the case, and for its impossibility insofar as it concerns the scope of what the courts may and may not do. In short, courts are not primarily tasked with persuading their jurisdiction as to there preferred prescriptive policies—such as that concerning whether business enterprises should face strict liability for any injuries that occur within their spheres of operation but they are instead asked to apply the rules of law to a particular case or controversy. Although there is, in all probability judge-made strict liability rules concerning certain factual situations, attempts at such policy-making from the bench reveals some degree of hubris, especially as it relates to respect for the legislative process and separation of powers. Moreover, Noonan appears willing to tolerate the incorporation of particular prejudices against parties to a suit based on the relative social or economic position of the parties to the suit, in spite of the fact that such considerations are irrelevant to determining the causal relation between the respective acts of the parties that gave rise to the dispute in the first place. Indeed, the legal issue concerning foreseeability addressed by Judge Cardozo was a reasoned rule of decision. For better or for worst, the law is a field that operates according to rules. While it is important to contemplate the trade-offs that may arise form organizing the system in this manner, to advocate for policy-making from the bench as Noonan appears to desire, stands as a radical departure from the law’s traditional role. Nevertheless, anyone with a conscience cannot help but empathize with Mrs. Palsgraf and conclude that the legal process has, in some sense, failed to produce a just outcome. The solution proposed by Noonan—redistribution of wealth from the rail companies to compensate those injured in the course of their operations, regardless of where the fault actually lies—may seem like the optimal solution. Indeed, it may very well be the most optimal solution. Yet the question is fundamentally one of policy, and is most properly determined via the legislative process. However, given the implications such a policy would necessarily involve – viz., the implications for the status of the property rights of business owners – should strongly caution any court from contemplating such sweeping action. As for Mrs. Palsgraf? Her story is an unfortunate one. Yet, it would be a mistake to hold to say that the law was the proximate cause of her injury. 2. The Empathy Nominee and Judicial Discretion[3] Anyone familiar with nomination of Justice Sonia Sotomayor may recall President Obama’s statement concerning what he looks for in a nominee: “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”[4] Noonan, it would seem, largely agrees with this sentiment, as we may glean from his implicit admonishments that the practice of law must be undertaken in a spirit of empathy, with an eye toward understanding the “moral ideals” that animate the law according to the “multiple contexts which enfold each [living person’s] experience.”[5] While this may all sound agreeable at first blush, when one undertakes to contemplate how a judge is to properly operationalize these ideals– whilst still maintaining the integrity of the law, particularly the first principle that all must be equal before the law – a series of problems emerge. Foremost among them is the fact that the law necessarily narrows its focus to only those facts and arguments that are relevant to assigning responsibility and protecting rights among equal parties. For Judge Cardozo to have considered the relative economic positions of Mrs. Palsgraff versus the railway company would be entirely improper and contrary to justice. That said, many advocates of “social justice” call for such an expansion of the legal system and there is a real debate to be had. 3. Law and Liberty Among the many insights of F.A. Hayek, his discussion on the tension that lays at the heart of any effort to seek justice and effect equality before the law will necessarily give rise to certain and predictable outcomes. In The Constitution of Liberty, he wrote: From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently. Equality before the law and material equality are therefore not only different but are in conflict with each other; and we can achieve either one or the other, but not both at the same time.[6] Noonan, it would seem, supports the principle of equality before the law, but seeks to add into this principle the element of love – as articulated by St. Augustine’s notion of “justice to the person.”[7] Insofar as the exercise of empathy, of love, and of any other good and virtuous conduct among persons can be realized within the practice of law should be encouraged – but only insofar as it does not overtake the first principles upon which law is established. That said, participants in the legal system ought not to lose heart when a conflict emerges – as the law is not a totality and the inability for the law to provide a solution may be signal that the solution lays elsewhere. Indeed, as cold as it may sound, it may very well be the case that it was unreasonable for the Mrs. Palsgraf to argue in the firs place that the Long Island Rail Company should compensate her for injuries which were, arguably, principally caused by an individual carrying dangerous materials in a negligent fashion. Although lawyers, judges, and jurists volunteer to make the study and application of the law their life’s work, they should not forget that there is a world that exists outside of the law. And insofar as the law fails to adequately provide redress to perceived injustices, it is probably that the solution may lay in that outside world (i.e., civil society, communities of faith, or the political branch). Law as such was incapable of redressing the problem of slavery – its ultimate resolution in America was in fact only realized through resorts to war. In some respects it would seem that Noonan, perhaps understandably, views law as a principal means to address the leading problems we as a society face today. Although it may very well provide a means to certain ends – the application of law to address many of the problems that arise from humanity’s baser instincts are after all well known – it does not have an answer for everything. One might even go so far as to say that the law is more of a stopgap measure, working to effect order from chaos; its primary task being the maintenance of regularity through protecting and enforcing a limited set of rights and duties in order to provide a ground whereupon individuals may pursue higher ends. To view the law, and for that matter government generally, as being the central institution capable of improving society writ large is to commit the error of a Hayekian fatal conceit. In many respects, it would seem that Noonan falls prey to this error. [1] John Thomas Noonan, Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks (University of California Press, 2002), 167. [2] Ibid., xiv. [3] “The ‘Empathy’ Nominee,” Wall Street Journal, May 27, 2009, sec. Opinion, [4] Peter Baker, “In Court Nominees, Is Obama Looking for Empathy by Another Name?,” The New York Times, April 25, 2010, sec. U.S. / Politics, [5] Noonan, Persons and Masks of the Law, 167. [6] F. A. Hayek, The Constitution of Liberty: The Definitive Edition (Routledge, 2013), 150. [7] Noonan, Persons and Masks of the Law, 18.

Review # 2 was written on 2014-09-25 00:00:00 Moya TysonJames I think the author's thesis is different from what it appears to be. The middle stuff is interesting, though.