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Judicial Reasoning: "The Law is an Ass"
Mr. Bumble, Chas, Dickens & Judge Brown

© Jerry Buchmeyer, 1980

Mr. Bumble had little use for judicial reasoning. In Dickens' Oliver Twist, he put it rather bluntly: "'If the law supposes that', said Mr. Bumble, 'the law is a ass — a idiot.'"

Mr. Bumble was, understandably, very irritated when he made this statement. He had been accused of stealing jewelry belonging to Oliver's mother; and, after making sure his wife had left the room, he responded: "It was all Mrs. Bumble." Brownlow, the solicitor, advised Mr. Bumble "that is no excuse" because:

"'You were present on the occasion…and, indeed, you are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.

"'If the law supposes that,' said Mr. Bumble, squeezing his hat emphatically in both hands, 'the law is a ass — a idiot. If that's the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.'"
Judge John R. Brown of the Fifth Circuit treats the same subject (judicial reasoning) with gentle humor.(1) Consider his examples of unintentional satire occurring when judges found it necessary to define "low tides" very precisely, or to explain the intricacies of "positive testimony," or to justify a finding of negligence by a chewing tobacco manufacturer in a difficult case"
"…Tides which are lower than lower low, and therefore lower than mean lower low, occur at certain seasons and are called extreme low tide…" State v. Edwards, 62 P.2d 1094, 1095 (Wash. 1936).

"It is a rule of evidence deduced from the experience of mankind and supported by reason and authority that positive testimony is entitled to more weight than negative testimony but by the latter term is meant negative testimony in it's true sense and not positive evidence of a negative, because testimony in support of a negative may be as positive as that in support of an affirmative…" Blackburn v. State, 254 Pac. 467, 472 (Ariz. 1927)

"We can imagine no reason why, with ordinary care, human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that someone has been very careless." Pillars v. R.J. Reynolds Tobacco Co., 78 So. 365, 366 (Miss. 1918)(2).
One might add these cases to Judge Brown's examples: Lightburn & Co. v. First National Bank, 232 S.W. 343 (Texas Civ. App. 1921)(because of the holding that it was reversible error to overrule an objection to a question asking how many boats Columbus has when he discovered America); Egbert v. Lippman, 104 U.S. 333(1981)(because of reasoning that a patent covering a corset — which had been used by the inventor's wife for several years before the patent application was filed — was invalid because "the inventor slept on his rights"); City of Akron v. Barclay, opinsion by Akron, Ohio Municipal Court (Sept. 19, 1978)(holding that "jogging" is not "walking" as that term is used in a city ordinance prohibiting walking on a roadway where a side car is provided); Wilson v. Continental Insur. Co., 274 N.W.2d 679 (Wis. 1978)(holding that the doctrine of res ipsa loquitur did not apply in a suit against a university by a law student who allegedly sustained mental injury in a "mind control" course which the law school allowed a corporation to offer to minority student because "mental disturbances can occur for a myriad of reasons, particularly in a student experiencing the rigors of his freshman year in law school"); and We've Carried the Rich for 200 Years, Let's Get Them Off Our Backs — July 4th Coalition v. Philadelphia, 414 F. Supp. 611 (E.D. Pa. 1976)(just because of the name, of course).

At this point, Judge Brown would end by commenting upon the power attributed to the federal judiciary — as reported by a rather "excited" judge in State of Connecticut v. Nadine Allen, Vivien Jones and Barbara King ("each members of the world's oldest — and one of the top five professions"), 203 A.2d 248 (Conn. Cir. 1964)(3) — so this et cetera will, too.

 


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