Magazine article Literary Review of Canada

Messy, Experimental and Stimulating: The Common Law We Live by Is More Than a Slow Tweaking of Precedents

Magazine article Literary Review of Canada

Messy, Experimental and Stimulating: The Common Law We Live by Is More Than a Slow Tweaking of Precedents

Article excerpt

Is Eating People Wrong? Great Legal Cases and How They Shaped the World

Allan C. Hutchinson

Cambridge University Press

260 pages, hardcover

ISBN 9780521188517

The common law, made up of thousands of individual decisions taken over centuries, has often threatened to overwhelm its practitioners. In the 19th century a new form of legal literature tackled this problem: the study of "leading cases" The authors of such works advised aspirant lawyers that any given area of law was based on a few fundamental principles, contained in a select group of the most enduring judicial decisions. Master those, and you had it made.

To a large extent modern legal education is still based on this premise, but a different approach to leading cases emerged in the late 20th century. Pioneered by the English legal historian A.W.B. Simpson, these new studies enhanced our understanding of leading cases through fuller historical contextualization. They added to our knowledge of the parties, their lawyers, the judges, the communities in which the dispute happened, the political and economic background--in short, they put back into the story much that gets bleached out from the published case report. Simpson's book-length study Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise, an account of the 1884 murder trial of two sailors who killed and ate their dying mate in order to survive while adrift in the South Atlantic, still stands as one of the best examples of the genre. That Allan Hutchinson chose it to start off Is Eating People Wrong? Great Legal Cases and How They Shaped the World is a testament to its enduring fascination.

Often, the more one learns about the context and actors in a leading case, the less authoritative the actual decision seems. Why did the judge omit any reference to legally relevant facts that can be well established? Understanding the judge's own background and predilections may suggest he or she was strongly predisposed to a certain view of the case. Illicit motivations on the part of judges or lawyers may rise from the archival record to shake one's confidence in the result.

On a broader plane, the historical study of leading cases leads to reflection on the nature of judge-made law. If the common law is supposedly based on the idea that past precedents are determinative in future disputes, how does new law ever gets created? This issue has engaged Hutchinson for some time: he explored it at a theoretical level in his book Evolution and the Common Law. There he took on the belief, preached by jurists from Lord Mansfield to Ronald Dworkin, that the common law "works itself pure": that there is a correct legal answer to every legal dispute that arises, if one works hard enough to find it. Hutchinson's challenge to that approach is summed up as follows in the book under review: "The common law is more tentative than teleological, more inventive than orchestrated, more fabricated than formulaic, and more pragmatic than perfected" In his view it is an open-ended work in progress whose greatest strength is its ability to ignore past precedent and take a "great leap forward" every once in a while.

In fact, Is Eating People Wrong? is a kind of Coles Notes version of the earlier book. The sentence just quoted appears in Evolution and the Common Law, and other passages reappear here and there. Eating People popularizes the theory and threads it through the studies of the eight "great cases" of the title.

There are two types of great cases dealt with in this volume, and they are quite different. Five are great in the traditional sense of being decisions that were seen as ground-breaking at the time and have continued to exert a strong influence not only in their countries of origin but elsewhere. These would be Brown v. Board of Education, the U. …

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