Is Eating People Wrong: Great Legal Cases and How They Shaped the World by Allan C Hutchinson (review)

This book has a somewhat unusual origin, at least for a Cambridge University Press imprint. In 2008, Professor Allan Hutchinson of Osgoode Hall Law School, now also Dean of Graduate Studies at York University, was asked to deliver a set of lectures on the law to passengers on a cruise ship. Each lecture focused on well-known cases, and this volume comprises the substance of those lectures. There are eight substantive chapters, each analysing a case and placing it in its historical and jurisprudential context, and an introduction and conclusion which discuss the nature of the common law and what studying these cases can tell us about it. The volume is ‘directed primarily at non-lawyers,’ according to the preface, and Professor Hutchinson duly acknowledges that the work is not the product of any serious original historical research by him. The book draws on a genre of legal history scholarship which the late Brian Simpson many years ago labelled ‘legal archaeology,’¹ and which is otherwise referred to as ‘case in context’ studies. The famous cannibalism at sea case, Dudley and Stephens, for example, is the subject of a book length study by Simpson himself.² The background to another of the cases chosen, Roncarelli v Duplessis, in which the Supreme Court of Canada held that Quebec Premier Maurice Duplessis had abused his power in withholding a restaurant licence from a man whose religious views he abhorred, has been extensively examined in two books by William Kaplan.³ All the other cases chosen have similarly been the subject of either monograph-length studies and/or an extensive article literature.⁴ The cases chosen are an eclectic group, a point I will return to later. Some, such as Dudley and Stephens, Pierson v Post (fox hunting and possession), Hadley v Baxendale (foreseeability of contract damages), and Donoghue v Stevenson (negligence liability) are well known to lawyers and/or law students as either ‘old chestnuts’ and/or foundational cases used to get students thinking about core principles. Others, the more modern ones, are not only legally significant but are also probably well known among a wider public; these include Roncarelli, Miranda v Arizona (right to be informed of the right to counsel and the right to remain silent on arrest), Brown v Board of Education (school desegregation), and, at least in Australia and New Zealand, Mabo v Queensland (Aboriginal title).

The author succeeds admirably in telling the legal and social stories involved in these cases in a succinct and accessible way to a lay audience. Hutchinson’s academic writing is invariably lively and engaging, hardly an easy task, and it is perhaps not surprising that he seems very much at home in this genre of writing. Occasionally, the explanation of the doctrine could be presented better. For example, the fact that the court held that the fox hunt in Pierson v Post took place on ‘waste ground’ was not ‘the most important feature of the appeal’ (77) as I read the case; nor did it turn on whether possession gave title. Both judgments accepted that that was the rule, and the case was about what constituted possession. In addition, to say that the more recent Popov v Hayashi decision was a ‘significant variation’ from Pierson (87) is to miss the point that what constitutes physical possession of a baseball is entirely different from what constitutes possession of a fox. But in context, given the enterprise, these are small points; the book is a good and generally accurate read.

It may be unfair, given the origin and purpose of this book, to offer an academic review of it, but publication by a university press does seem to make that appropriate. Moreover, the chapters which recount the individual cases are book-ended by an introduction and a conclusion which discuss the nature of the common law and the role played in its historical development by the ‘great...