This book makes a strong argument against the widespread perception, inside and outside the legal profession, that law is somehow an inanimate set of abstract rules which are the product of detached reason and are applied by impartial professionals.
The legal profession is much more and much less than that. It is a thoroughly human practice and, like any human practice, it has a predictable set of the blessings and blights.
The common law is work-in-progress—evanescent, dynamic, messy, productive, tantalizing, patchwork, flawed, and bottom-up.
Always on the move, the common law is rarely greater than the sum of its human and social parts. After all, at its most basic, law is little more than a site at which one group of people attempts to resolve the problems and disputes of others. As such, it involves the dynamic interaction of character and circumstance. And that means it’s hit-and-miss.
The law is not some “pie in the sky,” but very much a meal that is rustled together over time by a bunch of chefs who work with imperfect ingredients and limited utensils. Sometimes it works and satisfies society’s appetite and sometime it doesn’t.
The book looks at some of those “great cases” that breathe life into the law and around which the common law still revolves. When approached in this way, the common law tradition is revealed to be more an open and creative one in which “anything might go” than a bounded and cautious one.
Transformation is the life-blood of the common law. Great cases show how the law develops by breaking with its past; they confound the idea that the common law develops incrementally and logically.
“At its most basic, law is little more than a site at which one group of people attempts to resolve the problems and disputes of others.”
Much legal education treats law as an autonomous discipline that can be separated from and studied without any necessary resort to politics, philosophy, sociology and the like. Instead, I have always tried to show how law is simply a reflection of those contested matters.
Law is a practical craft and it is where the theoretical rubber hits the concrete road. It is only possible to make any sense of law and its development if one has some grasp of the political, historical, social and related contexts in which lawyers and judges work.
So, refusing to view law as a dry and formal discipline, it becomes possible to appreciate it as a much more vibrant, knockabout, and seat-of-the-pants performance.
Of course, this does not make law any better or worse in itself. As with all human endeavors, the common law offers a microcosm of social life with its usual cast of personalities and characters. It is as flawed as it is functional, as appealing as it is off-putting, as polished as it is pot-marked, and as prejudiced as it is balanced. It would be surprising if it were any different.
If there is a method to the common law’s madness, it is to be found in the court’s diverse and uncoordinated attempts to adapt to changing conditions and shifting demands.
Like nature itself, and like all efforts to explain and understand it, the common law is an untidy exercise in human judgment. The common law seeks to make the best of a bad job; it has a certain experimental, catch-as-catch-can, and anything-might-go sense about it.
The book’s title is drawn from a late nineteenth century case—which is also the focus of the second chapter.
Four men were shipwrecked in the mid-Atlantic. After over three weeks at sea with little food or water, the captain killed the cabin-boy who was the closest to dying. The three managed to survive by eating him and drinking his blood. When they were rescued, the three survivors told the authorities what they had done. Thinking that they had acted properly and in line with the law and lore of the sea, they had even brought the remains of their half-eaten colleague back to England for a decent burial. The authorities thought otherwise and two of them were charged with murder.
In the legal shenanigans and convolutions that followed, the judges grappled with what the requirements were for murder, particularly whether there was a defense of “necessity.” After many twists and turns, the men were convicted, but their punishment was commuted after wide public protest to six months in prison. The case still forms the basis of the common law and still challenges lawyers, old and new, to reflect on the appropriate basis for criminal conviction and punishment.
This case is typical of the common law’s development. A discrete incident—buying a drink with a foreign object in it, chasing a fox, or couriering a broken machine part—gives rise to a legal precedent that becomes one of the long-term building blocks of modern law. And other more portentous happenings—challenging segregated schooling, fighting religious persecution, and defending suspects’ rights—have set the law on courses that still shape contemporary thinking both in and outside law today.
“Great cases show how the law develops by breaking with its past; they confound the idea that the common law develops incrementally and logically.”
The book’s ambition is not to “unmask” or “debunk” the law or the role of lawyers and judges.
From a democratic viewpoint, the demonstration that the common law is a thoroughly socialized and political enterprise can be as liberating as it is unsettling. By showing the common law as the living, breathing and down-the-street experience that it really is, it might become possible to grasp that the common law is nothing more (and nothing less) than what we make it. It has no special magic and lawyers have no special insight into the human condition. The common law is no better or worse than the lawyers, judges and commentators who comprise its dramatis personae.
The common law is simply another official location at which officials struggle to forge workable solutions to demanding controversies of private and public significance. The common law is a showcase or a shambles, depending on your point of view. It is what it is by virtue of the talents of those lawyers who work with it, the values of those judges who shape it, and the interests of those litigants who must rely upon it. And it will change in the same way.
Whether societies should persist with such a process is not a question for technical experts, but one for political choice. If the common law is to continue in its privileged role, it will work best if it is stripped of its priestly trappings and viewed as the pragmatic, public and corrigible practice that it is.
And, by the way: is eating people wrong?
Well, it is not the eating that is the problem. (That should be a matter of personal taste and food regulation more than anything else.) But killing people, that is the real problem.
Allan C. Hutchinson is a Distinguished Research Professor at Osgoode Hall Law School, York University. He publishes widely in both academic and popular outlets, has been a distinguished visitor to Harvard Law School and numerous other institutions, delivered named lectures in Canada and around the world, and was elected to the Royal Society of Canada in 2004.