5/26/15

The Lawlessness of Lawyers

JUDGE PARRY is one of the men who have done mountains of good merely by being alive; while many judges act as if they were already dead, not to say ... but Judge Parry might misunderstand a misuse of theological imagery. He is somewhat anticlerical; which seems a waste of talent in a country where there is no clericalism. In his last book, Law and the Woman, I find much with which I do not agree, yet nothing which is not agreeable. Not only does he say everything with a disarming humour and candour; but even in error he never loses sight of the large fact: that sex relations do not depend on the exceptional action of law, but on the normal action of creed and custom. Alone among such lawyers he understands that the poor live on laughter as on a fairy-tale; and can be more scientifically studied in the fictions of Jacobs than the facts of Webb. I might pursue the view further than he on some points; as when he would infer the mere enslavement of women from some stories about the selling of wives. He is doubtless correct in detail; but the rhyme he gives to prove his point may almost be said to disprove it. He quotes a jolly ballad about a man who tried to sell his wife with a halter round her neck and, failing to do so, tried to hang himself in the halter rather than go on living with her. Obviously this is simply the fable of the grey mare; and does not mean that the man ruled his wife, but rather that she ruled him. I do not agree about divorce; but I am not going to argue about it here, or about any such problem of the sexes. This is partly because I should have to begin about the nature of a vow, and it feels like talking to a judge about the nature of an oath, and might almost be contempt of court. But it is more, I hope, for the manlier reason that I do want to argue about something else.

I think this delightful book might really mislead by a view of progress which over-simplifies history: the view that "the thoughts of men are widened by the process of the suns"—a monotonous process which cannot even widen itself. He begins his story of the subjection of women from the Bible story of Adam and Eve. He then proceeds at once to quote, not the Bible, but John Milton, and says it is almost exactly in the form "in which mediaeval man was wont to explain to mediaeval woman the kind of thing she really was." Now whatever Milton was, he was not mediaeval. He was, in his own opinion and in real though relative truth, highly modern and rationalistic. And he would have regarded his somewhat contemptuous view of woman as part of his emancipation from mediaevalism. Probably the very same attitude made him approve of divorce; and makes the difference between woman's place in his epic and her place in Dante's. On either side of that Gothic gateway of the Middle Ages out of which he had emerged (as he would have said) into the daylight, there had stood two symbolic statues of women, at least of equal importance in the scheme. One represented the weak woman by whom Satan had entered the world; the other the strong woman by whom God had entered the world. Milton and his Puritans deliberately battered and obliterated the image of the good woman and carefully preserved the bad woman, to be a standing reproach to womanhood. But they unquestionably thought their anti-feminist iconoclasm was a great step in progress; and the fact illustrates what an uncommonly crooked and even backward path the path called progress has really been. Nor is it difficult to discover, even in the writer's own account, whence this anti-feminism iconoclasm drew its force; which was certainly not merely from the Book of Genesis. Judge Parry says, perhaps disputably, that the rude Saxons had more legal regard for women than the Romans. But assuming for the sake of argument that the heathen Romans did give a low status to woman, they clearly cannot have got it either from the Hebrew Scriptures or the mediaeval Church. If he will ask where they did get it, he will probably also find where Milton got it. The truth is that there was an element of intellectual brutality in the Renaissance and revival of the pagan world. The very worship of power and reason embodied itself in a preference for the sex that was supposed superior in them. New tyrannies as well as new liberties were encouraged by the New Learning; and Cervantes was laughing at the unreal adventurer who fancied he was unchaining captives, at the very time when Hawkins, the real adventurer, was first leading negroes in chains.

Those chains may be linked up again presently in the chain of nay own argument: here I use the matter merely to show the danger of trusting each ethical fashion as it comes. There is one matter on which I would respectfully and seriously differ from Judge Parry; and that does not concern laws about women, but rather law itself. In praising the judgment in the Jackson Case, despite its technical irregularity, he speaks of a fine example of our judge-made law, and says: "But that is one of the sane and healthy attributes of our judicial system. There comes a breaking-point where a great judge recognizes that the precedents in the books are obsolete, and what has to be stated is the justice of the case according to the now existing standard of human righteousness." Now it is surely as plain as a pikestaff that this doctrine makes a small number of very wealthy old gentlemen in wigs absolute despots over the whole commonwealth. The Emperor of China was supposed to state the justice of the case. The Sultan of the Indies was supposed to judge by the existing standard of human righteousness. If the judges are not restrained by the law, what are they restrained by, which every autocrat on earth has not claimed to be restrained by?

Now there is certainly a case for personal and arbitrary government; and as there are good sultans, so there are good judges. I should not be afraid to appear before Judge Parry (if I may presume to imagine myself innocent) though he were surrounded with janissaries in a secret divan, or delivering dooms under an oak tree in a wild, prehistoric forest. I should not mind his having the power to skin me or boil me in oil; for I feel sure he would "recognize that these precedents were obsolete" and not do it. But it is by no means true that the confidence I should feel in Judge Parry would be extended to any judge who talked about obsolete precedents and human righteousness. Quite the contrary, if anything. I trust him because he often takes the side of the under-dog. I should not trust a man who always took the side of the opinion which happened to be top-dog. He understood, for instance, the case for "Pro-Boers"; but in the mafficking time a dozen great judges would have strained any law to make a case against Pro-Boers. Feminism was the fashion and may have produced some acts of justice; but Imperialism was also the fashion and might have produced any acts of any injustice. There is, let us suppose, an old statute that certain prisoners may be tortured for evidence; but the judges disregard it, and Judge Parry is satisfied. But there are three very vital reasons why he should not be satisfied. First, it encourages legislators to be lazy and leave a bad statute they ought to repeal. Second, they leave it so that it can be resharpened in some reaction or panic against particular people, who will be tortured. And third, and most important of all, the same judge who has said that prisoners must not be tortured for evidence may say some fine morning that prisoners may be vivisected for scientific inquiry; and he may have the same reason for saying the one as the other, the simple reason that such talk is fashionable in his set. And the set is very small and very rich; we are dealing strictly with fashion and not even, in any large sense, with public opinion. The standards of that world are often special and sometimes rather secretive. Judge Parry even quotes a "paradox" of Lord Reading to the effect that persons like himself should administer justice and not law. Law is narrow and national, and might possibly lead a British Minister to look no further than the British Parliament as an appropriate place for telling the truth. But justice, being international and surveying the world from China to Peru, perceives without difficulty the office of the one particular Parisian newspaper which has the right to insist on an explanation.

But the vital point is this. Judge Parry gives the instance of a judgment in which Mansfield, overriding certain remote precedents and quaint survivals, declared that there cannot be slaves in England. I am sorry to mention such a detail, but the fact is that the same judge made law is now declaring in the same way that there can be slaves in England. A magistrate has forbidden men to leave an employer, though the contract had admittedly terminated. Practical courts are overriding the obsolete and remote precedent of some man, far in the mists of mediaevalism, who is said to have made a free contract with a wealthier fellow-creature. They are disregarding the quaint survivals in our language, whereby the hand holding the tool is described as "his" hand. Our more vivid modern speech calls the man himself a hand; merely one of the many hands of his Briarean master. "There comes a breaking-point"; and it is liberty that is broken.

Whether the silent millions approve this judgment, or the other judgments, liberal or servile, feminist or anti-feminist, which Judge Parry quotes, I will not debate, but I leave the query to his very fair consideration. For if those silent millions spoke, I fancy they would surprise us in many matters, but most of all in the discovery of how little they think of all of us, judges, lawyers, literary fellows, and the rest. But I am very certain that Judge Parry would be found among the few, among the very few, who amid all the insolence of our inconsistencies have never lost that rare and even awful thing, the respect of the poor.

~G.K. Chesterton: in The Uses of Diversity (1920); a collection of essays from GK's weekly columns in The Illustrated London News and The New Witness