Sunday, 20 September 2009

Legal poetry

There aren't many poems about the law. Perhaps not surprisingly because the law is regarded as dry, of the mind not the spirit, perhaps even dull to the uninitiated.

But on the other hand, I have known many lawyers and even some judges take poetic licence with the law occasionally...

Anyway here's one poet, W H Auden, who was brave enough to do the reverse and take poetry into the law. Perhaps a weaker effort from the writer of such greats as 'Stop the Clocks' but a valiant effort in a tricky marriage.

Law Like Like Love

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.
And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.
If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.
Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

Law of negligence - the mysterious case of the snail in the bottle

The last post was on the basics of contract law, one of the principal cornerstones of English common law. So I thought this time I would go for the other one, tort. It is of course not a word non-lawyers will be familiar with, but it essentially covers the categories of civil wrong which are not based on contract or statute. The main torts which spring to mind are trespass - to the person, to land and to goods - nuisance and negligence. This time I am going to talk about negligence.

The essence of negligence is that people should take reasonable care to avoid causing harm to others. It practical terms it covers many types of claim people will be familiar with e.g road traffic accident claims, accidents at work and claims for mistakes by professionals and others.
For a negligence claim to arise there has to be a duty of care, a breach of that duty and foreseeable loss. These terms have been argued over for decades. The leading case is Donoghue v Stevenson, a case heard in 1932. Donoghue claimed that she had become seriously ill as a result of imbibing a bottle of ginger beer which had the decomposed remains of a snail in it. She wanted to sue the manufacturer but of course there was no contractual relationship between her and the manufacturer. In a famous dictum, Lord Atkin developed the principles which have more the a ring of The Bible about them, expounding that you must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour i.e. love thy neighbour as thyself.
Reasonableness crops up a lot in negligence and indeed in law generally. There is often talk of the reasonable man who used to be called the 'man on the Clapham omnibus', to indicate he had the common touch, and values, of all right-thinking members of society. Of course today he would have to be the man, or woman of course, on the Nintendo Wii, but you get the point. What the reasonable man should care about and foresee, the Defendant in the case should have foreseen, and if it wasn't right, taken steps to avoid it.

In passing, it is important to remember the judges cannot create law, at least in theory. Therefore when some students say the the law of negligence dates from 1932, this is strictly wrong. It would take some historical jurisprudence research (which I think I would enjoy, if I had the time) to trace back the common law before this but Winfield and Jolowicz on Tort says the judges had been led astray by some fallacious dicta in a case of 1842. Presumably before that it was the man on the sorrel horse who held sway. It is fascinating how the law of negligence adapts to new circumstances in society, whilst keeping of course the core principles intact if reinterpreted in a modern way. There are cases now about duty of care owed by the army to soldiers, which thought would have been unthinkable of course at the time of the Crimean War (see an earlier post of mine). One area which I think is ripe for development within the law of negligence is irresponsible mortgage lending. There are cases where it is clearly foreseeable that the borrower will not be able to repay under the loan terms. It's true that the borrower has breached the contract but what duty did the lender owe tho him in selling the loan? Is it justifiable that the lender should take his house when he knew or ought to have known that there was no real prospect of the borrower keeping to the instalment terms? I have a case in this area running at the moment which is going to appeal from a possession order. Will the new Lord Atkin please stand up?