THE COMMON LAW - WITH APOLOGIES TO LENNY BRUCE

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.

David Hume

Adam Smith

Francis Hutcheson

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 18^th 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.

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:

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  (7^TH 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.