Messy, Experimental and Stimulating

The common law we live by is more than a slow tweaking of precedents.

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.S. Supreme Court decision overruling previous precedent that allowed separate-but-equal facilities for blacks and whites in education, transportation and other public facilities; Donoghue v. Stevenson, the House of Lords decision allowing a consumer to sue a manufacturer directly for negligence in allowing a defective product to market; Mabo, the Australian High Court decision recognizing aboriginal title for the first time in that country; and Miranda v. Arizona, the U.S. Supreme Court decision requiring police officers to give certain warnings to detained persons at the time of their arrest. The fifth case, Hadley v. Baxendale, is an English case of 1854 deciding that where a contract is breached the damages are limited to those that were reasonably foreseeable at the time the contract was entered into.

The other three cases are great not so much because of any transformative impact on the law, but as particularly good illustrations of ongoing legal dilemmas. These would be Dudley v. Stephens itself (the cannibalism case); the only Canadian case in the collection, Roncarelli v. Duplessis, in which a Montreal restaurateur successfully sued Premier Maurice Duplessis for damages for wrongfully revoking his liquor licence; and Pierson v. Post, an early American case dealing with how one claims possession of wild animals and, by extension, unclaimed resources of various kinds. These cases are still cited, but did not “shape the world” as Brown or Miranda did, and the reason for their inclusion is not entirely clear. Perhaps they show by implication that the truly path-breaking case is a rare event indeed.

The book is clearly aimed at a lay audience, although it could be read with profit by lawyers. Hutchinson’s style is highly readable and engaging; one is quickly drawn into the human stories that underlie the litigation. The law is explained clearly and painlessly, and the subsequent impact of the case quickly sketched. A brief coda explores the later lives of the parties after their 15 minutes of legal fame. The author amply fulfills his goal of persuading the reader that “great cases are one way to glimpse the workings of the common law as an untidy but stimulating exercise in human judgment and social accomplishment.”

But what of the larger theoretical project? According to the Hutchinson of Evolution and the Common Law, “there is no grand theory that will satisfactorily explain the dynamic interactions of change and stability in the common law’s history.” He replaces the usual portrayal of common law development as a slow, continuous tweaking process with one characterized by contingency and sudden explosive shifts after long periods of stasis. In his view, change is driven mostly by the courts’ halting dialogue with public opinion rather than factors internal to the law.

Although this view is presented as “a radical challenge to all existing accounts of the common law’s development,” in fact legal historians have been saying similar things for decades—as evidenced in the works by Simpson and others upon whom Hutchinson relies to build his account. Historians understand that theory and historical reconstruction have to work together. For their part, legal theorists tend to dismiss history as irrelevant to their work because it is said to possess no normative content. Perhaps Hutchinson’s work will oblige them to re-evaluate the worth of historical analysis as an indispensable tool, alongside legal theory, for understanding the workings of common law.

Academics are notoriously critical, but in this book Hutchinson comes close to celebrating the common law’s messy, experimental quality. “One of the few constants in law and adjudication is that change and stability are maintained through continuous acts of revision: transformation is the lifeblood of the common law’s vibrant tradition.” This sounds almost like the 17th-century jurist Sir Edward Coke, who famously asserted that the common law was tam antiqua tam nova—always old and always new. Even as Hutchinson disclaims any intention “to contribute to the cult of the common law,” he paints a highly appealing picture of it—one that his younger self, a standard-bearer of the movement known as critical legal studies, might have trouble recognizing.