Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks First Edition, With a New Preface

Good read for a different view of the law.

In general, I steer clear of lawyers who "do academics." They tend to drag legalism and legal doctrine into the way they conduct historical and historiographical analysis. John Noonan's "Persons and Masks" is an exception to this rule. Originally published in the mid-1970s, this text (really, a series of stand-alone studies/essays) is as good a read today as it was in 1975. The historical analysis is superb: a thorough study of the men (yes, men), law firms, secular interests, ideologies, and so forth that resulted in the "abstract" doctrines that form some of the bulwark of the contemporary legal system. (Any law student should immediately recognize the Palsgraf case.) Yet at back of it all is a trenchant commentary on this whole enterprise: that the legal profession serves to smooth out and legitimate the ugliness of human affairs.If the point is not terribly novel, the methods used to get there are noteworthy. Like Robert Cover, Noonan moved past the briefs, motions, and rulings to employ original documents to human and humane ends. I found the original edition in a Salvation Army bookstore in Baltimore in 1992 or so and considered myself very lucky. I'm just glad to see it is easier to procure this fine book these days. It deserves a wide audience.

Combining a fascinating legal analysis with legal history, [now Senior Judge] John Noonan has written a fine book. Tracing the jurisprudence of some major legal minds from three different periods in American history, Noonan demonstrates how a preoccupation with LAW as a detached set of rules with a life of its own can lead to the obscuring of the human element in law.Rules are clearly necessary to an orderly society and to the adjudication of disputes between parties, but rules are conceived of in the minds of people and are applied by people to cases and controversies involving people. An overemphasis upon law as a detached science of rules can allow for the creation of rules that obscure the humanity of people who are subjected to them. These sorts of rules Noonan describes as "masks." (Masks are to be distinguished from "roles," which people assume, but which they are not consumed by.)Noonan's chronicling of George Wythe and (his student) Thomas Jefferson's legal involvements with the old slave codes provides a stark example of how masks have been used in the history of American law. That section was particularly interesting from a scholarly and historical standpoint, as Noonan describes them in all their utter brutishness, proceeding to delve into the (hypocritical) political, economic and social purposes for which they were created.Also interesting is Noonan's analysis of Oliver Wendell Holmes' legal thinking and how that thinking was employed in the U.S. Supreme Court case of American Banana Co. v. United Fruit Co. (1909). In this reviewer's opinion, there is greater moral ambiguity in the case of sovereign immunity than there is with chattel slavery, but Holmes clearly employed a mask in the American Banana case. Noonan does a fine job of describing the backdrop to the case and all the major players involved in the litigation.Finally, Noonan discusses Cardozo's masking of the plaintiff in the infamous Palsgraf case from the New York Court of Appeals. This was fun to read, as Palsgraf is one of those cases all law students read in their first-year torts classes.It would probably prove too much to say that this book has appeal for a wide audience. In all likelihood, only those who are seriously interested in legal scholarship and legal history will find it of interest. Much of the analysis takes place at a high level of abstraction. But given that the book is originally based upon a prestigious serious of law lectures, it should satisfy its intended audience.

Dr. Noonan's book, "Persons and Masks of the Law" is the best I have read in terms of informing its readers of what really goes on below the surface of what we commonly consider to be "The Law." It shows its undersurface, and how it is invariably a question of the personalities and prejudices of those who administer the law. Noonan's mind, and analyses are brilliant.