Simon Musgrave writes:
Relevant to the Language Log posts on the status of cows are two sections from a favourite book of mine, A.P. Herbert's Uncommon Law (London: Methuen, 1935). Case #32 in this book reports the actions (heard together) Board of Inland Revenue v. Haddock and Rex v. Haddock, where Mr Haddock attempts to pay his tax bill by writing a cheque on the side of a cow, and causes a public disturbance when he delivers the cheque. Various arguments are given as to whether the animal constitutes a negotiable instrument, the presiding judge ruling that it certainly does and that the Collector of Taxes erred in not accepting it. Case #20 reports argument from the Court of Appeal in which Mr Haddock (again!) suggests that motor cars have the legal status of wild beasts -- and finds sympathetic judges.
I gather that the 66 cases covered in Herbert's book were each originally the subject of one of his columns in Punch, which ran under the heading "Misleading Cases in the Common Law". According to the Wikipedia entry on Herbert, "[o]ver his lifetime he published sixteen collections of the Misleading Cases".
Many of Herbert's wonderful fantasies are aimed at particular provisions of British law from the period in which he worked, but others are of more general interest. For example, Case #1 investigates whether the common law allows for the existence of 'the reasonable woman' and Case #8 considers whether it is libellous to call someone 'highbrow'. My particular favourite is Case #58, in which a bright young lawyer argues that, as people receiving a salary from the state, no judge is eligible to hear income tax cases, as all are liable to a conflict of interest.
What is apparently a digital version of Herbert's essay "The Myth of the Reasonable Man", representing Case #1, can be found here. The anonymous presenter tells us that
The Reasonable Man is reproduced and cited in many modern British and United States legal books as it illustrates a key axiom of the common law — that many jury decisions are centered around the concept of the 'reasonable man'.
Without this concept, trespass and the law of torts (for example negligence, or bad faith breach of contract) and many other legal cases could not be decided. It should be noted that any apparent "sexism" in the essay should not be taken seriously. Even when it was written, in the early half of the twentieth century, its serious message was intended to be accompanied by a waggish sideswipe at the attitudes of an older era, and the peculiarities of legal definitions as they developed in the common law. This should not be interpreted as an endorsement of neolithic attitudes.
I'm skeptical of the view that the "apparent 'sexism' in the essay should not be taken seriously". Here's the legal background as given in the essay:
In this case the appellant was a Mrs. Fardell, a woman, who, while navigating a motor-launch on the River Thames collided with the respondent, who was navigating a punt, as a result of which the respondent was immersed and caught cold. The respondent brought an action for damages, in which it was alleged that the collision and subsequent immersion were caused by the negligent navigation of the appellant. In the Court below the learned judge decided that there was evidence on which the jury might find that the defendant had not taken reasonable care, and, being of that opinion, very properly left to the Jury the question whether in fact she had failed to use reasonable care or not.
The jury found for the plaintiff and awarded him two hundred and fifty pounds damages. This verdict we are asked to set aside on the ground of misdirection by the learned judge, the contention being that the case should never have been allowed to go to the Jury; and this contention is supported by a somewhat novel proposition, which has been ably, though tediously, argued by Sir Ethelred Rutt [the appeals judge] ...
The essay takes a few digs at the notion of "reasonableness" and at everyday hypocrisy:
Devoid ... of any human weakness, with not one single saving vice, sans prejudice, procrastination, ill-nature, avarice, and absence of mind, as careful for his own safety as he is for that of others, this excellent but odious character stands like a monument in our Courts of Justice, vainly appealing to his fellow-citizens to order their lives after his own example.
I have called him a myth; and, in so far as there are few, if any, of his mind and temperament to be found in the ranks of living men, the title is well chosen. But it is a myth which rests upon solid and even, it may be, upon permanent foundations. The Reasonable Man is fed and kept alive by the most valued and enduring of our juridical institutions -- the common jury.
Hateful as he must necessarily be to any ordinary citizen who privately considers him, it is a curious paradox that where two or three are gathered together in one place they will with one accord pretend an admiration for him; and, when they are gathered together in the formidable surroundings of a British jury, they are easily persuaded that they themselves are, each and generally, reasonable men.
So far, so good. But the essay (or the judge's opinion -- it's not clear to me whether Herbert is channeling the judge or merely quoting him) concludes that the stereotypes exempting women from reasonableness are to be endorsed.
To return, however, as every judge must ultimately return, to the case which is before us -- it has been urged for the appellant, and my own researches incline me to agree, that in all that mass of authorities which bears upon this branch of the law there is no single mention of a reasonable woman.
It was ably insisted before us that such an omission, extending over a century and more of judicial pronouncements, must be something more than a coincidence; that among the innumerable tributes to the reasonable man there might be expected at least some passing reference to a reasonable person of the opposite sex; that no such reference is found, for the simple reason that no such being is contemplated by the law; that legally at least there is no reasonable woman, and that therefore in this case the learned judge should have directed the jury that, while there was evidence on which they might find that the defendant had not come up to the standard required of a reasonable man, her conduct was only what was to be expected of a woman, as such.
It must be conceded at once that there is merit in this contention, however unpalatable it may at first appear. The appellant relics largely on Baxter's Case, 1639 (2 Bole, at page 100), in which it was held that for the purposes of estover the wife of a tenant by the mesne was at law in the same position as an ox or other cattle demenant (to which a modern parallel may be found in the statutory regulations of many railway companies, whereby, for the purposes of freight, a typewriter is counted as a musical instrument).
And there is our old friend, the typewriter as musical instrument for purposes of railway rate regulation! But the context is an argument that women are not members of the class of rational beings. The essay continues:
It is probably no mere chance that in our legal text-books the problems relating to married women are usually considered immediately after the pages devoted to idiots and lunatics. Indeed, there is respectable authority for saying that at Common Law this was the status of a woman. Recent legislation has whittled away a great part of this venerable conception, but so far as concerns the law of negligence, which is our present consideration, I am persuaded that it remains intact.
It is no bad thing that the law of the land should here and there conform with the known facts of every day experience. The view that there exists a class of beings, illogical, impulsive, careless, irresponsible, extravagant, prejudiced, and vain, free for the most part from those worthy and repellent excellences which distinguish the Reasonable Man, and devoted to the irrational arts of pleasure and attraction, is one which should be as welcome and as well accepted in our Courts as it is in our drawing-rooms-and even in Parliament.
The odd stipulation is often heard there that some new Committee or Council shall consist of so many persons 'one of which must be a woman': the assumption being that upon scientific principles of selection no woman would be added to a body having serious deliberative functions. That assumption, which is at once accepted and resented by those who maintain the complete equality of the sexes, is not founded, as they suppose, in some prejudice of Man but in the considered judgments of Nature.
I find that at Common Law a reasonable woman does not exist. The contention of the respondent fails and the appeal must be allowed. Costs to be costs in the action, above and below, but not costs in the case.
Here the notion that married women are members of the natural class that includes idiots and lunatics is endorsed, on the grounds that "[i]t is no bad thing that the law of the land should here and there conform with the known facts of every day experience", and that the courts should welcome "[t]he view that there exists a class of beings, illogical, impulsive, careless, irresponsible, extravagant, prejudiced, and vain, free for the most part from those worthy and repellent excellences which distinguish the Reasonable Man, and devoted to the irrational arts of pleasure and attraction".
Is this just "a waggish sideswipe at the attitudes of an older era, and the peculiarities of legal definitions as they developed in the common law"? Well, it's certainly waggish, and there are peculiarities a-plenty on display, but the attitude of indulgent paternalism seems all too sincere.
[Update: John Cowan writes:
I think -- nay, I am reasonably sure -- that you have just added yourself to the long and honorable list of those who have been deceived into thinking the Misleading Cases are actual law cases that Herbert simply reported on. You speak of "cases covered", of "the anonymous presenter", of an "essay", and finally profess yourself uncertain whether Herbert is "channelling the judge or merely quoting him".
In fact, Herbert made up the case, the judge, his opinion, Sir Ethelred Rutt (the attorney for the appellant) and all. His intent was the old-fashioned one of amusing and instructing through light-hearted satire; as always with satire, some will take it quite seriously. It is also a tribute to his literary art that his concocted judicial opinions sound quite convincing in their slide to the entirely daffy conclusion (as in this case). They have in the past appeared in the newspapers as fact (notoriously so in the case of the negotiable cow), and why not on Language Log?
I do urge you to read them: the "Port to Port" case, in which the Admiralty Court reluctantly decides that, on a flooded highway, as between a motor vehicle keeping cautiously to the left and and an oncoming rowboat audaciously keeping to the right, the latter has the right of way, is a particular favorite of mine.
(I had second thoughts about sending this at all; perhaps you realize all this all too well and are simply being too subtle for me -- but I decided to send it anyway, just in case.)
I was not being subtle -- in fact I was entirely taken in, though also puzzled about the identity of the essay's authorial voice.]Posted by Mark Liberman at April 21, 2006 09:38 AM