5d3 Wigs, Coifs, and Other Idiosyncrasies of English Judicial Attire 1000 English Judge in Full Regalia

Wigs,

Coifs,
and Other Idiosyncrasies
of English Judicial Attire
Charles M. Yablon
Professor of Law


Editor's note: This article is adapted from Professor Yablon's article"Judicial Drag: An Essay on Wigs, Robes and Legal Change,"published in 1995 in the Wisconsin Law Review.

Except for some members of the clergy and practitioners of a few of the more exotic forms of show business, judges are the only people in America who, irrespective of gender, are expected to carry out their primary duties while wearing a dress. While business suits may well be worn beneath the judicial costume, the whole point of the judicial dress (or robe, if you insist) is that it hides whatever the judge is wearing underneath. Because of the robe, a judge wearing tank top and cutoffs wields just as much authority behind the bench as one dressed by Brooks Brothers (at least as long as that judge stays behind the bench). When it comes to exercising judicial power, in short, the business suit is superfluous. It's the dress that counts.

The silliness of American judicial garb, however, pales into insignificance when compared to the truly ridiculous outfits their brethren and sistren [Note 1] in England are expected to wear. While judicial robes in America at least have the minor virtues of being cheap and easy to clean, the English judges of the higher ranks are saddled (literally) with enormous horsehair wigs that can cost over one thousand pounds and weigh almost that much. They are also expected to wear garish robes trimmed with the carcasses of small woodland creatures. The English judicial costume is said to be itchy, unhygienic, and uncomfortable. It also doesn't always smell terrific.
Group of Judges in Wigs
The absurdity of English judicial attire has been a matter of note for quite some time. That most stylish of Founding Fathers, Thomas Jefferson, said that English judges looked to him "like mice peeping out of oakum."  Jefferson was not much of an Anglophile. A few decades later, another budding revolutionary, Alexander Herzen, described the English judges as "wearing a fur coat and something like a woman's dressing gown."

English judicial attire in its present form dates from about 1660, the time of the Restoration of the English monarchy. Upon the return of Charles II from France, the fashion of the Court of Louis XIV for powdered wigs became de rigeur for the smart members of English society. Since England had just emerged from a bloody civil war between those who wore their hair short (the "Roundheads") and those who wore their hair long (the "Beatles"), the pervasive use of wigs was an obvious way to cover over the divisions in society (as well as the occasional bald spot).



       Because of the robe, a judge wearing tank top and cutoffs
                             wields just as much authority behind the bench
                   as one dressed by Brook 1000 s Brothers.

The judicial robe and barrister's gown developed much earlier. By the time of Edward III (1327-77), the fur and silk-lined robes were well established as a mark of high judicial office. Judicial costume changed with the seasons, generally green in the summer and violet in the winter, with red reserved for special occasions. [Note 2] The plain black gown was adopted by most barristers in 1685 when the bar went into mourning at the death of King Charles II. They have apparently never gotten over it.

Until the nineteenth century, the wig was not considered a particularly legal headgear. The distinctive medieval legal headdress was the coif, a piece of white linen which seems originally to have been designed to cover the tonsure of monks who were acting in a legal capacity.



          The plain black gown was adopted by most barristers in 1685
      when the bar went into mourning at the death of King Charles II.
                                They have apparently never gotten over it.

By the late sixteenth century, however, all members of the legal profession wore round black skullcaps to court, with the white edges of the coif sticking out underneath. When wigs were introduced, judicial wigs had a small version of the skullcap and coif sewn into them.  Law students, not yet entitled to wear wigs, continued to wear the legal skullcap for some time after the introduction of wigs, but by the early eighteenth century, it had disappeared completely. Much writing in this area tends to confuse the legal skullcap with the coif. Absent this confusion, it is possible that law school honor societies would be inducting students into the "Order of the Yarmulke."

Portrait of a Judge
In short, English judges and barristers began wearing wigs and robes because everybody in polite society was wearing wigs and robes in those days. They continue to wear them because nobody has ever told them to stop. Wigs are expensive, and English judges get a stipend to cover the cost of their wigs and robes. Barristers, on the other hand, must buy their own, and there is a thriving market in used wigs. It is not clear, however, that used wigs are cheaper than new ones. Tradition being what it is in Great Britain, wigs that have previously been worn by great jurists and lions of the bar acquire a certain cachet that makes them highly sought after. Of course, such pre-owned wigs may also acquire some other, less-attractive attributes, like a yellowish color or off-putting aroma. It is also not unheard of for wigs to be stolen and resold on the black market. As one barrister put it, "The courts are full of criminals."

In April 1992, there was much speculation that English judges might finally stop wearing all their ridiculous paraphernalia and slip into something a little more comfortable. The judges of the commercial court, the division of the High Court that deals with commercial litigation, were scheduled to vote on a recommendation that the wearing of wigs be abolished in commercial court proceedings. The new lord chief justice, Justice Taylor of Gosforth, was also on record as being strongly anti-wig.

It didn't happen. The commercial court judges voted not to abandon their wigs, but instead to place the whole matter before all 55 judges of the Queen's Bench Division for continued consideration and de 1000 bate. Interviewed the following day, the clerk to the chief judge of the Commercial Court stated, "I think they felt it was too big an issue for them to sit in splendid isolation." Remember, these are the judges of the highest court of original jurisdiction for commercial matters in England. Sitting in "splendid isolation," each judge frequently decides cases involving the most complex business affairs and the disposition of many millions of pounds sterling. Yet whether or not to take off their wigs in public was "too big an issue" for them to decide alone. Clearly, the judicial wig was directly connected to something deep within the English judge's psyche. The most cogent rationale for deciding not to decide, however, was provided by one of the most senior judges, the master of the rolls, Lord Donaldson. As he put it, there was no urgent need to go "discarding something which has been out of date for at least a century."



                      English judges of the higher ranks are saddled (literally)
                                       with enormous horsehair wigs that
     can cost over one thousand pounds and weigh almost as much.

Under the British parliamentary system, the House of Lords has a particular interest and expertise on the subject of anachronism. On June 22, 1992, they debated the wig issue at some length in the presence of Lord Mackey, who, as lord chancellor, was simultaneously the highest judicial officer in England, a member of the Cabinet, and a member of the House of Lords. Most of the peers who spoke argued strongly for the retention of wigs and robes. They did so, however, in business suits. Lord Mackey, who took no substantive position on the wig question, appeared before the House in full court dress. He announced that the question of judicial dress would be presented to all interested bodies through a "consultation paper" seeking the views of judges, lawyers, the public, and even criminal defendants.

Other forces began to rally round the ancient horsehair. Counsel magazine, a practice journal for British barristers, published a totally unscientific survey conducted by two English schoolboys of about 200 people they found hanging out at the courthouse in Oxford during three days in early June. These folks, who consisted primarily of litigants and witnesses in various pending proceedingsó19 of them were defendants in criminal casesócame out overwhelmingly for retaining traditional wigs and robes both for barristers and judges. Of the criminal defendants surveyed, not a single one was willing to go on record as favoring abolition of the robe.

The consultation paper released on August 19, 1992 sought to summarize the strongest and most cogent arguments in favor of and against the continued wearing of wigs by the English judiciary. One of the most prominent reasons for retaining traditional judicial garb was that it imbued in laypersons a sense of the solemnity and dignity of the law. This was seen as a particularly important function in connection with criminal defendants who tend, as a group, to be underappreciative of the law's dignity and solemnity. On a more practical note, a second major justification was that the wig and robe served to disguise the appearance of judges to a considerable degree, making it difficult for criminal defendants and other litigants a44 to identify them outside the courtroom context.

Both of these arguments struck me as vaguely familiar. I had heard them before in some other, different connection. After careful research I have determined that these are precisely the same reasons Batman gives for wearing his mask and cape. Batman, like the English judiciary, seeks through his bizarre and slightly anachronistic apparel (after all, who wears a cape these days?) to "strike fear into the hearts of criminals everywhere." Moreover, both the English judges and Batman use their costumes to hide their "secret identity," which is, in fact, their ordinary everyday identity, the one they use when they are not busy fighting crime.

In the end, it was decided that English judges would continue, at least for the foreseeable future, to wear the same old silly costumes. The difference is that they now have a well-defined and clearly articulated set of reasons explaining and justifying why they are wearing those silly costumes. This, as every lawyer knows, is progress.



Notes:

1. I know there is no such word as "sistren," but let's see you come up with a good gender-neutral archaic expression.

2. These days, High Court judges still must choose appropriately from a range of sartorial options that would stagger the average GQ reader. Dressing properly requires a mix of fashion savvy and jurisdictional expertise. Consider the following helpful advice from "Court DressóA Consultation Paper issued on behalf of the Lord Chancellor and the Lord Chief Justice" (August 1992):

 
When sitting in the Court of Appeal (Criminal Division), High Court judges, like other members of the Court of Appeal, wear a black silk gown and a short wig, as they do in Divisional CourtÖ. When dealing with criminal business at first instance in the winter, a High Court judge wears the scarlet robe of the ceremonial dress but without the scarlet cloth and fur mantleÖ. When dealing with criminal business in the summer, the judge wears a similar scarlet robe, but with silk rather than fur facings. A Queen's Bench judge trying civil cases in winter wears a black robe faced with fur, a black scarf and girdle and a scarlet tippet; in summer, a violet robe faced with silk, with the black scarf and girdle and scarlet tippetÖ. On red letter days (which include the Sovereign's birthday and certain saint's days) all judges wear the scarlet robe for the appropriate season.

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