Is snacking on morsels of human flesh wrong? Apparently it is, if it involves murdering the person first – even if you’re stranded at sea without food or water. According to common law, necessity is no defence to murder.
Such a 19th-century case of murder and cannibalism is highlighted in Osgoode Hall Law School Professor Allan Hutchinson's new book, Is Eating People Wrong? Great Legal Cases and How they Shaped the World (Cambridge University Press, 2011). Hutchinson, a Distinguished Research Professor, takes a look at eight cases in his book and how they have strongly influenced common law.
“These are interesting stories largely about interesting people who end up in extraordinary circumstances,” says Hutchinson. He chose these stories to illustrate that the law is a lot less structured and technical than most people realize. It is not just arcane rituals and rules. “It’s a gritty, sometimes grubby process of trying to develop law on the fly. When you scrub everything away, the law looks at dilemmas that change us as a society.”
One of the more famous dilemmas Hutchinson explores is well known by law students around the world – the 1884 case of R vs. Dudley and Stephens involving the murder and consumption of cabin boy Richard Parker following the wreck of the Mignonette, which sailed out of England and headed to Australia.
Captain Tom Dudley, Edwin Stephens and Parker abandoned the yacht for the lifeboat with nothing more than two tins of turnips and no water. About three weeks later, with Parker in a coma, Dudley and Stephens decided to kill and eat him to survive. Once rescued and back in England, the pair stood trial for murder and were sentenced to death – the judges having decided that there was no common law defence of necessity to a charge of murder, legally, ethically or morally. In the end, the men only had to serve six months in prison.
Left: Allan Hutchinson
That ruling, says Hutchinson, continues to have repercussions in common law today. "But the most startling coincidence is one of those rare occasions where life follows art," says Hutchinson. In 1837, almost 50 years before the Mignonette set sail, Edgar Allan Poe published his only novella: The Narrative of Arthur Gordon Pym of Nantucket. "The story tells of a young man who is shipwrecked along with two others. They survive for several days on the ship’s floating hull, but soon realize that they can only survive if one of them sacrifices himself for the benefit of the other two. After drawing lots, the cabin boy loses out and is killed and eaten. In an uncanny omen of things to come, the cabin boy’s name was none other than... Richard Parker,” writes Hutchinson.
Another case he examines is that of a woman in Scotland who, after buying a soda and drinking half of it, pours out the rest to discover a snail at the bottom. The woman falls ill and her case is taken up by a lawyer who makes it “his life mission to bring this case to the top,” says Hutchinson.
“It seriously influenced common law. It is probably the most well-known case in Canadian and British law as it gave rise to a whole set of legal doctrines and rules that make up tort law.” That one case has affected the law around medical malpractice, legal liability, whether someone in danger should be rescued and the responsibilities of manufacturers to ensure their products are safe.
The only Canadian case in Is Eating People Wrong? – Roncarelli vs. Duplessis – involved the persecution of Jehovah's Witnesses in Quebec by then-Premier Maurice Duplessis. Canadian Frank Scott, a poet, McGill University professor and constitutional expert, defended Frank Roncarelli, a Jehovah's Witness, in legal action against Duplessis after he revoked the liquor license for Roncarelli’s restaurant. It was revoked after Roncarelli had bailed out hundreds of Jehovah's Witnesses who had been arrested for selling their magazine. The Supreme Court ruled that Duplessis had overstepped his authority and that no public official was above the law.
These are all cases that tested the legal system and society, and continue to impact decisions today. But they started with people who were thrust into circumstances that needed the courts to sort out. They are interesting, quirky and not easily resolved, but they are relied upon as common law.
Hutchinson was elected to the Royal Society of Canada in 2004, and in 2007 he received a University-Wide Teaching Award and was a visiting professor at Harvard Law School. A legal theorist, he is interested in law and politics, legal theory, the legal profession, constitutional law, torts, jurisprudence, civil procedure and racism.
He has published in most of the common law world's leading law journals. Much of his work has been devoted to examining the failure of law to live up to its democratic promise. His most recent books include Evolution and the Common Law (Cambridge University Press, 2005) and The Companies We Keep: Corporate Governance for a Democratic Society (Irwin Law, 2005).
His next book will examine some of the great judges and their influences.
By Sandra McLean, YFile writer