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College Quarterly
Fall 2012 - Volume 15 Number 4
Shouting at the People
Reviewed by Howard A. Doughty

Books discussed:

  • Is Eating People Wrong? Great Legal Cases and How They Shaped the World
    Allan C. Hutchinson,
    Cambridge, UK: Cambridge University Press, 2011
  • Laughing at the Gods: Great Judges and How They Made the Common Law
    Allan C. Hutchinson
    Cambridge, UK: Cambridge University Press, 2012

The story goes that Allan Hutchinson once took his young daughter to one of his lectures. The child, when asked what she thought of the experience, replied that she had enjoyed it. Then, when encouraged to describe what had happened, she said: “Daddy went into a big room and shouted at the people.” According to the pedagogy implied by that hideous old phrase “a guide on the side, not a sage on the stage,” it follows that Professor Hutchinson should not be much of a teacher. That, however, is not how his students see it. He is one of the most popular and capable lecturers at Osgoode Hall Law School—arguably the most prestigious in Canada. Keeping in mind that “popular” and “capable” do not always go together, I can add that Hutchinson is one of the best lecturers that I have heard in years—on both counts. He is a crafty communicator, and what he communicates is of authentic intellectual value.

Imagine, please, the more thoughtful and fair-minded judges in memory, in recorded history or even in the fantasies of literature and film. My choices might include former Canadian Supreme Court Chief Justice Bora Laskin, Billings Learned Hand (often called “the best Justice the US Supreme Court never had”) and Gregory Peck’s character Atticus Finch, improbably appointed to the bench in the segregated American south. Then, add a soupcon of Scottish comedian/actor Billy Connolly, a smidgen of Robin Goodfellow and the soul of a sportsman, and you’ll come pretty close to what Allan C. Hutchinson presents on that foolishly vilified stage. He is also a gifted writer. Scholarly yet light-hearted, informative and amusing, he presses his points home with such charm that it’s sometimes hard to remember that you are being educated. What’s more, the lessons he teaches will stick with you.

The two books under review are not among his most brilliant academic tomes. They are intended as popular explanations of the common law, undertaken in the guise of historical case studies and personal biographies. There are no “prerequisites” to prepare the unschooled reader for the experience of reading them. You need not have even a passing familiarity with Law for Dummies, a decent collection of Erle Stanley Gardner’s “Perry Mason” novels or a personal copy of Otto Preminger’s wonderful film, Anatomy of a Murder. As with the best of popularizations, Hutchinson’s books are understandable on their own. He communicates effectively and without being patronizing to anyone who thinks that Black’s Dictionary is a guide to Ebonics or African-American slang.

Although no doubt of interest to legal practitioners and law school professors (complimentary comments from the likes of retired Canadian Supreme Court Justice Ian Binnie and Harvard Law Professor Noah Feldman decorate the back covers of the books), they are plainly directed toward the intelligent laity. It is true that the copy-editing is sometimes languid, small details (especially in Laughing at the Gods) are unnecessarily repeated and, occasionally, the text seems a little more like a transcript of a loosely scripted conversation than a formal essay; nonetheless, this is a minor flaw and not excessively annoying. In general, the books do their jobs very well.

I read them in the order of their publication—the latter being an unshackled companion to the former. I am happy that I did, for Is Eating People Wrong? strikes me as being the better or, perhaps, the more important of the two. It leads nicely to Laughing at the Gods, which supplements it in a way that might not be as satisfying if the relationship were reversed.

Is Eating People Wrong? describes eight crucial legal cases and explains the ways in which they set the common law on new, innovative paths that, ultimately, brought more justice to the courts, and eventually to society. Laughing at the Gods follows naturally with biographical accounts of eight remarkable judges whose decisions had profound effects and whose personalities reveal that they are “great” exemplars of their profession. There is some, but not complete, overlap. For example, Marbury v. Madison (1803), surely the most important decision by the greatest of the great judges, John Marshall, does not show up in the Is Eating People Wrong? On the other hand, the jurists who decided Pierson v. Post (1805), a seminal case in property law, do not make the cut in Laughing at the Gods. Hutchinson’s choices of the “big eight” in both catagories are contestable, but thoroughly defensible as well.

A common theme, of course, unites the two approaches of case law and biography. Hutchinson is fascinated with what he calls “greatness.” He is not, however, an uncritical devotee of Thomas Carlyle whom he quotes as claiming that “the history of the world is but the biography of great men.” He sensibly calls that opinion “a tad exaggerated.” I would go much further and call it preposterous, and that may be where any daylight between Hutchinson’s accounts and my own predilection can be most easily seen.

That having been said, his view of certain cases, notably M’Alister [Donoghue] v. Stevenson (1932) is informed, informative and enlightening. The case of May Donoghue, a penniless single parent who sued the manufacturer of a bottle of ginger beer as a result of a snail being allegedly in the bottle when she was being treated to an ice cream float in Glasgow, Scotland, shows that whole legal traditions can be upset, re-routed, redefined or even reversed by a singular judicial opinion. Because one extraordinary judge in one extraordinary case makes a bold, unprecedented decision, all future law can be affected.

As a result of May Donoghue’s unfortunate (alleged) encounter with a member of the Phylum Mollusca, anyone now engaged in a lawsuit over a tort (a civil wrong) may very benefit or suffer a detriment because of what James Atkin (later Lord Atkin of Aberdovey and one of the judges portrayed in Hutchinson’s gallery of judicial greats) decided about negligence and the “duty of care” as it applies to manufacturers in placing their products for sale in the marketplace. No Donoghue? Then perhaps no chance of a remedy for people who consume e-coli with their spinach, children who get lead poisoning from their metal toys, or smokers who contract lung cancer from cigarettes. Perhaps no recalls of poorly designed or badly assembled vehicles.

Seven other great cases are reported, each of which profoundly influenced not just the way in which the law evolved, but also our public standards of justice. Like “popular” and “capable,” the “law” and “justice” are not always wholly commensurate. Sometimes only strong changes in one will produce even moderate changes in the other.

Some of the Hutchinson’s chosen cases are more obviously interesting to the average reader than others. The case which gives the book its title, R. v. Dudley and Stephens (1884), involved the killing and cannibalizing of a near-death survivor of a marine mishap by his healthier shipmates. It is certain to entertain. In addition to the drama on the boat, readers may also learn that the poor victim’s name was Richard Parker, the same as that of the tiger in the novel-cum-motion picture The Life of Pi. Coincidence? I think not. Yet here, for all the fun, an important element in the history of the “defence of necessity” was incorporated in the evolution of the law.

Readers, of course, may be more familiar with a couple of the more recent cases such as Oliver Brown et al. v. Board of Education of Topeka. Shawnee County, Kansas (1954), which served as a symbolic focus for the Civil Rights movement in the United States, and Miranda v. Arizona (1966), which resulted in the requirement that American law enforcement officers, when arresting criminal suspects,  “read them their rights.” What happened to Ernesto Miranda, the accused rapist at the centre of the controversy, is also revealed and may give cheer to those who continue to fuss about seemingly “guilty” people “getting off on a technicality.” Whether famous or relatively obscure, Hutchinson’s main subjects—both law cases and impressive legal personalities—are treated judiciously, so to speak. He does a fine job of introducing, explaining or explicating the significance of his chosen people and significant decisions, and his assessments of both seem very fair indeed.

As someone who is more interested in historical events than the personalities at their hub, I naturally favoured the account of the law; others, more inclined to biography or psychology, will incline toward the studies of flesh, blood and spirit in undoubtedly great but not always likeable individuals.

Just as in Is Eating People Wrong? Hutchinson’s treatments of the lives of prominent judges do not rise to the level of thorough, penetrating academic accounts, nor were they meant to do so. Averaging about thirty pages each, they barely have space to provide the basic facts of their subjects’ lives, to address the their principal legal decisions and assess their contributions to the law—including the justifications for including them in the gallery of “greats.” Hutchinson is also acutely aware that his list is unlikely to win universal approval from other experts. Picking eight judicial stars in a sparkling celestial galaxy is more than tricky—almost as, or maybe even more than, choosing real judges for appointment to the Supreme Court. He offers substantial reasons why his favorites should be included, even as he acknowledges that many other worthies are left out. If naught else, it all makes for a delightful parlor game.

Only one, the early American jurist John Marshall, is likely to win near unanimous consent. Marshall was not only an important judge in his time, but he almost single-handedly established the constitutional role of the Supreme Court of the United States of America. As a Canadian, I was not heavily exposed to US history as a youth, but I certainly recall hearing a good deal about Marshall in high school history. Moreover, his decisions in Marbury v. Madison and McCulloch v. Maryland (1819) were rammed solidly into my head as a third-year student of American Government on my way to winning a Canadian degree in political science.

The others? Not so much. Two of Hutchinson’s selections, however, stand out for me.

The first is Oliver Wendell Holmes, Jr., whose pronouncements about free speech still warm the hearts of those who admire the content of the First Amendment to the Constitution of the United States. On the other hand, his commitment to a version of “social Darwinism” and his egregious “eugenics” decision in Buck v. Bell (1927), which supported forced sterilization of so-called “imbeciles,” continue to grate.

Holmes ultimately receives this assessment by Hutchinson: “Sadly, Holmes became the callous embodiment of the bad man that he had identified and that populated his judicial and juristic musings. His sense of what it was to be a good person and a good lawyer seemed to amount to little more than being ardent about one’s own interests and attentive to the consequences of one’s actions. This,” he concludes, “seems an attenuated and unappetizing account of social morality.” Appetizing or not, Holmes met the sometimes uncertain criteria of greatness from Hutchinson’s point of view. It is hard to disagree.

The second is Albie Sachs. A man of Lithuanian-Jewish heritage, he was born and raised in South Africa and became an important part of Nelson Mandela’s African National Congress. Forgoing the relative privilege of being a White lawyer during the days of South African apartheid, Sach’s courageous politics may be explained in large measure by the fact that his estranged father was a leader of the Garment Workers Union and his mother worked for Moses Kotane, the Secretary General of the South African Communist Party. On his sixth birthday, Hutchinson reports, Sachs’s father sent him a card imploring him to grow up to be “a proud soldier in the fight for liberation.”

Sachs did, and he almost paid for it with his life. He was often arrested, sometimes tortured and later made the victim of a targeted bomb attack in which he lost most of one arm and the sight in one eye. What makes Sachs even more remarkable than his active role in the anti-apartheid movement was his work as a judge in the years following the democratization of his country. In 1994, President Mandela appointed Sachs to the Constitutional Court where he had a hand in shaping the laws of South Africa—both in substance and process—until his retirement in 2009. His rulings were often controversial. As a judge, he crafted the decision making same-sex marriage legal and made effective the right to vote by people in prison. Nonetheless, Hutchinson argues compellingly that his judgments, while generally progressive, were subtly and often brilliantly rendered with firm support in legal principle rather than mere ideology. Perhaps his most lasting contribution, however, has been the strength he displayed in dealing with people accused of the hideous treatment of dissenters during the apartheid era. His record is nicely captured in the phrase “soft vengeance,” which is achieved when, by granting fairness and due process to those who previously denied it to you, you turn an enemy into a friend.

I am not sure that many serious and well-prepared law students, much less dedicated and experienced members of the bar, will learn a great deal from these books; though, insofar as they humanize the law and relentlessly invoke high ethical and moral standards, they might be of value to some disenchanted and embittered or merely careerist and covetous barristers and solicitors in need of some measure of redemption. On the other hand, I would not be astonished to learn that, after coming into Hutchinson’s orbit, currently undecided or even rudderless young people of integrity and intelligence had been inspired to consider enrolment in those law schools, and I would be thrilled to discover that some citizens who are not legal specialists had been encouraged to attend more carefully to what goes on in the courts.Such civic education would not go amiss, especially in times when high school and college students are given so little reason to become culturally literate and so few opportunities to achieve civic competence. I think that Allan C. Hutchinson would be delighted to know the same—if he doesn’t already.

Howard A. Doughty teaches political economy at Seneca College in Toronto. He can be reached at howard_doughty@post.com.

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