I recently suggested to my instructor, Sonia
Boussange-Andrei (who teaches the course entitled: Philosophie du Droit – La
Justice et les Droits – le moment des Lumières Ecossaises, loosely translated
as Philosophy of Law - Justice and Rights - Times of Scottish Enlightenment)
that I could do an exposé (presentation) on the ‘common law’ in the UK as I
had been working as lawyer in London for some 30 years. She seemed initially to
like the idea; however, subsequent to an essay she had agreed to read, she
changed her mind, graciously stating that there might not be sufficient time to
take in the presentation owing to the amount of material she had to get through
and the time needed for the various student presentations to come.
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| David Hume |
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| Adam Smith |
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| Francis Hutcheson |
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| Adam Ferguson |
The
course is mainly a close reading of David Hume’s Treatise of Human Nature and Adam Smith’s Theory of Moral Sentiments, together with various texts from Jeremy
Bentham, Adam Ferguson, Francis Hutcheson, John Millar, J. S. Mill, some other
18th Century philosophers and including more recent works by Martha
Nussbaum (b. 1947), Friedrich Hayek (1899-1992), Philip Pettit (b. 1945) and a
host of other writers on the subject through the centuries. Clearly this is a
good cross section of writings on the matter of rights, justice and the law.
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| Martha Nussbaum |
Sonia had set an essay topic as Le Droit et la Convention (The law and convention or Rights
and conventions) and had very kindly agreed to allow me to contribute a
piece of my own, which she would read primarily to give me a view of my use of
the French language. Apparently the language was clear and fluid, however my
version of what an essay should be was not what was expected. It did not fit
the French institutional convention of how an essay is written. She did state,
en passant, that it was very interesting. Oh dear. I thought, so not really
worth reading. She asked if my exposé, would
be along the same lines, to which I hesitantly replied ‘Yes’. She then
indicated that there would not be any time for it, owing etc. Clearly my effort
was not worthy of any exposure, not even of any kind.
On
reflection I should have replied ‘No’ and indicated to her just what it was I
intended for the presentation. It probably would have made no difference to her
decision but it would have been fun to do. Although my essay made reference to
common law and the duty of care, it did not develop in the way I had planned
for the presentation. My fellow students, being mostly young French persons in
their early twenties, are hardly likely to have been exposed to Lenny Bruce.
The opening of the planned presentation is an homage to Lenny Bruce and his routine on how the law might have
evolved. He developed this routine as a result of his own problems with various
courts in the United States, resulting in lengthy litigation and association
with numbers of lawyers. In my view it is a very philosophical approach drawing
on the work of the very Scottish writers we have been reading. It may appear
simplistic but is a clear reflection of the evolution of primitive man’s
relationship with the imposition of rules, regulations, rights and conventions.
The following would have been my presentation:
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| Lenny Bruce |
Natural behaviour in human beings requires them to
interact. Interaction necessitates compromise and establishing ways of getting
along together, hence rules of behaviour.
John Millar, Scottish philosopher, in his Observations
concerning the Distinction of Ranks in Society,
1771, writes:
Of all our passions, it should
seem that those which unite the sexes are most easily affected by the peculiar
circumstances in which we are placed, and most liable to be influenced by the
power of habit and education. Upon this account they exhibit the most wonderful
variety of appearances, and, in different ages and countries, have produced the
greatest diversity of manners and customs.
The state of mankind in the rudest period
of society, is extremely unfavourable to the improvement of these passions. A
savage who earns his food by hunting and fishing, or by gathering the
spontaneous fruits of the earth, is incapable of attaining any considerable
refinement in his pleasures. He finds so much difficulty, and is exposed to so
many hardships in procuring mere necessaries, that he has no leisure or
encouragement to aim at the luxuries and conveniences of life. His wants are
few, in proportion to the narrowness of his circumstances. With him, the great
object is to be able to satisfy his hunger, and, after the utmost exertions of
labour and activity, to enjoy the relief of idleness and repose. He has no time
for cultivating a correspondence with the other sex, nor for attending to those
enjoyments which result from it; and his desires being neither cherished by
affluence, nor inflamed by indulgence, are allowed to remain in that moderate
state which renders them barely sufficient for the continuation of the species.
Imagine,
if you will, a group of primitive humans in their cave bedding down for the
night after the usual evening meal. In the morning, one of them, our person
concerned, wakes up with a face full of garbage.
He remonstrates with his fellows and complains to all the spectators
“Hey, what’s the deal here, I go to sleep and wake up with a face full of
garbage, what’s with that.” “You’re right” they say “No one should have to
wake up with a face full of garbage. So here’s what we’ll do. We’ll sleep in
area A, eat in area B and throw our crap in area C. Agreed? That will be the
rule, eat, sleep, crap.” Everybody agrees. The next morning our person
concerned wakes up only to find he has a face full of garbage. “Hey what’s
going on, I thought we all agreed, eat sleep and crap and I wake up again with
garbage all over me? What’s going on?” “Ah well, you’re quite right again. OK
from now on, if anybody throws garbage on us while we’re sleeping, they get
thrown in the garbage house. Is that good for everybody.” “What everyone?” “Yes
anybody, no throwing crap”, “But what if
it’s my mother?”, “That doesn’t matter, the rule’s the rule. Everybody gets
thrown in the crap house for throwing crap. No exceptions, no privileges of rank,
nothing. OK?” “OK agreed”. “But people wont go in there by themselves, so we
have to get somebody to stop them and put them in the crap house, so we need
some people to enforce the rule. Is that OK? Everybody cool with that? It will
mean some people will have control over other people, but only to keep the
peace. That good for everyone? OK? OK – good, that’s what we’ll do”. So
everything seems fine, but the next morning our person concerned wakes up with
a face full of crap. “This is ridiculous, what is all this, why aren’t you
people stopping the crap throwers?” “Well we can’t seem to find them, we don’t
know. “ Hey look there, that guy with crap on his hands, it’s him” “No, no it
wasn’t me, I was just cleaning up the cave that’s why I’ve got crap on my
hands, it wasn’t me. Besides, I was with my girlfriend last night in the cave
next door, so it couldn’t have been me” “ You sure, I think it’s you, it’s the
same kind of crap, look” “No no not me” ‘How can we be sure” “So OK, before we
go any further we have to be sure that we have the right person who threw the
crap. Nobody gets thrown in the crap house, unless we’re sure they threw the
crap. It’s not right that innocent people should get thrown in the crap house.
so we have to get it right, OK? Is that something we can all agree on? OK good.
Everybody gets a fair hearing and only gets put in the crap house if we’re all
sure. Good? Good that’s OK then.” So things are going along nicely when one
morning, the person concerned wakes up with another face full of crap.” This is
too much. We’ve got rules, What are you people doing. I should not have to wake
up every day to the same crap. What’s going on? Look at me” “What’s the
problem?” “Look at me, I’ve got crap again” “What crap, I see no crap” “What do
you mean, look at this, this is crap.” “That’s not crap. It just normal
overnight dust. Nothing to bother about. Its normal.” “What do you mean normal?
Have a good look, this is crap” “No sorry, we don’t see it.” “For God’s sake
take a really good look, it sticks, it smells bad, this is crap if ever there
was crap.” “Well maybe. Now that we’ve had a closer look we think it might be
crap, so we’d better do something about it.” “So what this means is that,
before anything is done, and we go off looking for a crappy person, we have to
be sure that the crap complained of is actually crap, otherwise its just normal
day to day crap, OK? Once again are we all agreed? Number one, no one can throw
crap, number two, whoever does gets put in the crap house, no matter who it is;
Number three, we have to be sure who did it, and number four, we have to be
sure that whatever it is, is crap, so the person concerned has to prove that
it’s crap in the first place. OK? All agreed say aye” and all said aye.
So
that’s sort of how the common law got started. It evolved over time with each
complaint by a person concerned being taken up by the spectators as they sought
to clean up the crap. This empathy by the spectators created a situation which
compelled them all to sort out how the rules dealing with crap throwing would
work. It also compelled them to sort out how to deal with the crap thrower.
What to do with them for throwing the crap and how to compensate the victim of
the crap thrower.
In a piece by Martha Nussbaum entitled Poets as
Judges: Judicial Rhetoric and the Literary Imagination, she refers to the
following:
Carr
–v- Allison Gas Turbine Division, General Motors Corp [32F3D 1007 (7TH Cir 1994)]
Mary
Carr was the first woman to work in the tinsmith shop of the gas turbine
division of General Motors’ plant in Indiana. Over a period of five years, she
encountered sexual harassment from her male coworkers. During four of the five
years, she complained to her supervisor, to no avail. In 1989, she decided that the
situation had become unbearable and quit. She brought suit against General
Motors ("GM"), seeking back pay and other relief. After a bench
trial, District Judge Larry J. McKinney ruled in favor of GM, accepting the
company's arguments that the alleged harassment was merely sexual bantering of
a type common in the workplace and that GM was powerless to stop this
bantering. On appeal, the Seventh Circuit ruled in
favor of Mary Carr in an opinion written by Judge Richard Posner.
This
case is unusual because the appellate court overruled the trial court's
findings of fact. At the opening of the opinion, Posner remarks that Carr's
lawyers, concerned that the prevalent clear-error standard would make such a
result unlikely, attempted to persuade the Court that there had been legal error
in the lower court's opinion. Posner
found no legal error, but he did find error in the findings of fact. The
clear-error standard, he wrote, "requires us appellate judges to
distinguish between the situation in which we think that if we had been the trier of fact we would have
decided the case differently and the situation in which we are firmly convinced that we would have
done so." Posner thus announced at the start that his ruling was based on
this sort of firm conviction. His account of the facts must therefore support
that judgment.
This case is a classic example
of the common law in action, the setting of precedent and establishing law. Mary
Carr, the person concerned, suffered more than appalling behavior on the part
of her co-workers. If anyone had crap thrown at her, she did; however, the
court of first instance did not recognize the crap and callously referred to it
as ‘merely sexual bantering of a type common in the workplace’. She persisted
and went to a higher court, with more empathetic impartial observers, who fully
recognized the crap that she had been through. Indeed, a reading of the facts
of the case should cause any truly impartial observer to wonder at the
staggering ignorance of the lower court in making the judgment it came to.
Whether the higher court’s decision is the result of more poetic judging, I
cannot say that I fully agree with Martha Nussbaum, but it does indicate a
judiciary far more in tune with current views of behavior, and what is or is
not appropriate in the twentieth and twenty first century. What may previously have
appeared as ‘merely sexual bantering’ is now clearly inappropriate and contrary
to the law as a result of this higher court precedent set in 1994.
A
common law legal system is characterized by case law developed by judges, courts,
and similar tribunals, when giving decisions in individual cases that have precedential effect on future
cases. The body of past common law binds judges deciding later cases to ensure
consistent treatment and so that consistent principles applied to similar facts
yield similar outcomes. In common law cases, where the parties disagree on what
the law is, the court is usually bound to follow the reasoning used
in past decisions of relevant courts. If the court finds that the current
dispute is fundamentally distinct from previous cases, judges have the
authority and duty to make law by creating precedent. Thereafter,
the new decision becomes precedent, and will bind future courts. Stare decisis, the principle that
cases should be decided according to consistent principled rules so that
similar facts will yield similar results, lies at the heart of common law
systems, but connotations of the term "common law" vary according to
context, both in present-day use and historically.
