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

By Girard, Philip | Literary Review of Canada, June 2011 | Go to article overview

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


Girard, Philip, Literary Review of Canada


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.