Woof!

One of my favourite little legal jokes comes from W S Gilbert’s (and Arthur Sullivan’s, for the music) Trial by Jury.  The scenario involves a trial for breach of promise (an action, now abolished in Australia, brought for breach of promise to marry).  The plaintiff (the jilted bride) arrives weeping with a train of bridesmaids.  The defendant (the caddish erstwhile groom) says that it is natural to be changeable in one’s appetites: he is not to be blamed for the fact that he now loves another.  Nevertheless, he offers to resolve the problem as follows: 

“But this I am willing to say,
If it will appease her sorrow,
I’ll marry this lady to-day,
And I’ll marry the other to-morrow.”

The judge (as judges do) says to counsel for the plaintiff: 

“That seems a reasonable proposition,
To which, I think, your client may agree.”

But counsel for the plaintiff is having nothing of this.  He submits that this is impossible because it is illegal, and backs this up from the law books as follows: 

“In the reign of James the Second
It was generally reckon’d
As a rather serious crime
To marry two wives at a time.”

This apparently comes as a surprise to everyone in the court.  They chorus their admiration by exclaiming: 

“Oh, man of learning!”

The point of this joke (which presumably, like all jokes, will now wither under the weight of explanation) is that, under the common law system, the law is made, not by the promulgation of rules, but by their discovery from decisions made by judges on a case by case basis.  This is sometimes called “judge-made law,” though there are rather elaborate arguments (advanced, in their most lofty form, by Ronald Dworkin) about the source and nature of the deeper principles from which judges derive their decisions.  Even where there is a statute, common lawyers are shy about expressing any concluded view about the effect of the statute until it has become the subject of a decided case.  Hence (to return to the joke), even a well known prohibition such as that against bigamy needs to be backed up by reference to a decided case.  

At law school, legal principles are accordingly taught by a mosaic narrative of “leading cases” which are said to establish the essential or critical points.  Some of the more famous of these are the “Carbolic Smoke Ball case” (which is taught early on in the law of contract) and the “Ginger Beer bottle” case, which reformulated and in many ways established the modern law of negligence and involved a snail which was said to have been found in a bottle of ginger beer.  These little stories are inscribed deeply into lawyers’ and law students’ psyches.  Long ago, I shared a house with a law student.  When we embarked together on a home-brewing venture, he was particularly vigilant in washing and sterilising the bottles, and specifically on the look-out for snails. 

As part of this method of teaching, law classes (and subsequently exams) are much taken up with the consideration of hypothetical cases which are based on the leading cases, slightly altered or mixed up.  These “problems” are used to practise (and subsequently test) the application of the relevant principles, including areas of uncertainty, where those principles may need to be extrapolated to a further point or where the merits and likely resolution of conflicting principles may need to be resolved. 

Often the scenarios which are considered are baroque in the extreme.  In my first year torts class, I once protested to Colin Phegan, then dean of law and now a judge, that the facts in the problem we were discussing would never actually emerge in a law case.  Professor Phegan rightly told me not to bother about that, and, from a pedagogical point of view, I could see his point. 

I have since come to realise that there is practically no limit to the sorts of facts which can arise.  Sometimes, this is because (as with, in fact, the Ginger Beer case) cases can be decided on facts even before those facts have been established, because the opposing side has chosen to take a stand based on the “even if” approach.  That is, “even if” what you say is true, you haven’t made out a case.  But other times, even quite banal legal principles can arise in circumstances which, had they not occurred, one would have had difficulty imagining. 

My law-student friend, by then practising as a solicitor, told me of one such case.  On a remote country road, two cars headed in opposite directions.  A heroin addict, who had just scored and was on the way home, drove one.  A man who had just murdered his father drove the other.  There was a head-on collision.  The police attended.  Both crimes came to light and both men end up in gaol for those crimes. The heroin addict sued the parricide for his injuries.   

Another favourite example of mine is: Maggiotto Building Concepts Pty Limited v Gordon [2001] NSWCA 65 

Go to paragraph 65, or search for the words “consensual sexual acts with the family dog.”

3 Responses to “Woof!”

  1. Drug dealing in the Eastern Suburbs - a true story « Stumbling on melons Says:

    […] have written before (go to the last few paragraphs of that post and in particular the link) about the unlikely chains […]

  2. Legal Eagle Says:

    Fabulous. I love this post. That is all.

  3. Loss « Stumbling on melons Says:

    […] scenes, and Sx, the man with a morbid fear of being poisoned by a snail in a beer bottle and source of a memorable unlikely co-tort, had not turned up for work or called to say he wouldn’t be in. This was quite out of […]

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