Joe Biden is calling for a new jurisprudence. Equating common law—the system of law used in most English-speaking countries, including the United States—with “white culture,” Biden insists our inherently racist legal system must change.
Speaking at the Biden Courage Awards ceremony last week, the former vice president cited the “rule of thumb” as an example of common law’s inherent bias. From the context of his speech, Biden seems to understand as historical the cartoonist James Gillray’s meme of Sir Francis Buller allowing men to beat their wives with sticks no wider than their thumbs:
In the 1900s, so many women were dying at the hands of their husbands because they were chattel, just like the cattle or the sheep, that the court of Common Law decided they had to do something about the extent of the deaths. You know what they said? No man has a right to chastise his woman with a rod thicker than the circumference of his thumb. This is English jurisprudential culture, a white man’s culture. It’s got to change. It’s got to change.
Gillray published the cartoon Biden references, mocking the perceived draconian judgments issued from Sir Buller’s bench, in 1792. Since then, English speakers have absorbed the idea of the “rule of thumb” as a reference to canes. In fact, there has never been a common law doctrine allowing men to cane their wives, and no court in England or America has ever ruled that thumb-sized canes are ameliorators of more extreme methods of domestic violence.
To be fair to Biden, the rule-of-thumb inaccuracy is a powerful one, entering into legal as well as popular discourse. In 1867, a North Carolina court let off a man for whipping his wife with a switch narrower than the circumference of his thumb, citing an “old saying from the realm of England.” Far from being an example of established legal practice, however, North Carolina’s Supreme Court immediately overturned the lower court’s ridiculous decision, knowing no common law doctrine allowed such domestic violence.
Writing at the end of the 18th century, Sir William Blackstone, England’s preeminent legal scholar and the most highly regarded legal authority in American history, noted in his “Commentaries on the Laws of England” that “old law” did make small allowance for husbands to moderately correct their wives for misbehavior, since husbands were legally responsible for their wives’ conduct. However, this old law prohibited any such “domestic chastisements” from being violent.
Even such an allowance for non-violent correction became outdated by the “politer” reign of Charles II (1630-1685), and by the time of Blackstone’s writing, “a wife [had the] security of peace against her husband; or, in return, a husband against his wife.” Of course, the history of law is not the history of action; our society has seen men perpetrate gross abuse against women, and Biden should be commended for his efforts to combat domestic violence. But to argue that law excused or supported familial violence is erroneous.
Biden’s anachronism may be excused as rusty memory of tort law. To be sure, English common law is one of the least understood and most underestimated aspects of American jurisprudence, perhaps even for a presidential candidate. Putting these contingencies aside, however, much more damaging to the rule of law and societal harmony is Biden’s equation of our legal system with “white man’s culture.” Adopting such a posture signals decay of the rule of law in this country.
It is an irony almost beyond belief that white supremacists and left-wing intersectionalists now agree that key aspects of Western, or Anglophone, institutions are inherently “white.” Both falsely regard skin color or ethnicity as determinants of culture. Implied in Biden’s remarks is the insipid idea that white people—particularly men—have manipulated the law to serve their own irrational ends, all while using the language of fairness and objectivity to deceive their fellow citizens and disguise their real motives.
Even though men have exercised abusive power over women since time immemorial, the common law of England (maintained by post-Revolution America) made no allowance for husbands to murder or assault their wives at home. It is vital that citizens have trust in their legal institutions. Should common law come to be perceived as “white,” what reasons would anyone—from whatever ethnic background—have for acknowledging the authority of courts? None, because today we rightly reject the idea that skin color bestows authority on any particular group.
A healthy—and historically accurate—approach to the real racial problems with which America’s legal system grapples would draw on the strengths of the common law and not reject it wholesale. We ought to use history (real, not imagined) to help us in that task. Take, for example, the common law doctrine against slavery.
In 1569, an Englishman named Cartwright was charged with battery for beating his Russian slave. Rejecting the Englishman’s paltry defense excusing his behavior, the court ruled “That England was too pure an Air for Slaves to breathe in.” The slave was freed.
Some scholars suggest this line from Cartwright is a late misquotation of Lord Hardwicke’s statement in Shanley v. Harvey 200 years later, that “As soon as a man sets foot on English ground he is free.” Forgoing physical metaphors, Lord Mansfield, in the famous 1772 case of Somerset v Stewart, echoed the precedent cases in unadorned language, ruling that the enforcement of slavery on English soil was not “allowed or approved by the law of England.”
William Cowper, apparently familiar with the language of all the judgments, put the common law doctrine into verse this way:
Slaves cannot breathe in England; if their lungs
Receive our air, that moment they are free;
They touch our country, and their shackles fall.
Unfortunately, it would take Parliament until 1807 to heed the remainder of Cowper’s plea and apply the common law principle against slavery to admiralty law, under which jurisdiction the sea-based trafficking in slaves fell:
And let it circulate through every vein
Of all your empire; that, where Britain’s power
Is felt, mankind may feel her mercy too.
To incalculable misery and shame, the American colonies used a sleight-of-hand tactic and applied admiralty law to these shores, thereby countenancing the use of slaves on land. But this was not the common law. In this area, Americans explicitly rejected the common law, trading the rule of law for white identity politics.
Historian Francis Newman noted in 1889 that: “All the colonies were subject to the common law of England, and if in Virginia and Jamaica there had been a judge as upright and able as Lord Mansfeld…it would seem that slavery might have been dissolved by a few judicial trials.” Americans knew full well what the law required, but politics triumphed over reason. As the Founding Father James Wilson admitted: “The reasons which we sometimes see assigned for the origin and continuance of slavery appear, when examined to the bottom, to be built upon a false foundation.”
Blackstone highlighted the role of reason in his summary the common law position on slavery this way:
Pure and proper slavery does not, nay, cannot, subsist in England…And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist anywhere…the law of England abhors, and will not endure the existence of, slavery within this nation; so that when an attempt was made to introduce it, by statute…the spirit of the nation could not brook this condition…. And now it is laid down, that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property.
At its best, common law is the legal manifestation of moral principles discerned by practical reason. In other words, common law is the legal outworking of natural law. Natural law—the law of reason—is no more white than reason is.
Martin Luther King Jr. knew this when he relied upon natural law to reject Alabama’s white identity politics. “How does one determine whether a law is just or unjust?” he asked from a Birmingham jail. “A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.”
At common law, cases involving human conflict are brought before a judge who applies common (that is, ubiquitous) mores of the society, discernment, and relevant legal precedent to the case at hand. The ultimate question in cases from personal injury to contract disputes, is entitled the “reasonable man standard.”
The question is, what would a reasonable man do in this situation? This question is the beginning of practical reason, as Aristotle discerned 2,300 years ago: phronēs is twofold, consisting of a true conception of the end to be achieved by action and correct deliberation about the means to achieve that end.
Common law is not “white” any more than reason is. With Dr. King, we must encourage Biden not to judge the law by the color of its skin but by the content of its reasonableness.