The basis and idea of the case had an outline before the plaintiffs even had a client to represent. Sarah Weddington had just graduated from law school, in the third year of which she had an illegal abortion in Mexico. Though it is likely that this influenced her views regarding abortion, she did not publicly reveal this at the time of the case. Nor did she represent herself; instead, she went looking for prospective clients, something which was technically allowed because the case was one of public interest. In the end, she found a client: a 21-year-old woman who was pregnant with her third child: the woman who would become “Jane Roe”.

Her real name was Norma McCorvey, but for this case she was identified under the pseudonym of Jane Roe (a variant of Jane Doe, both being standard placeholder names). At the time that she became Weddington’s client, she knew very little about abortion, and had a neutral stance on it, but was convinced to play the part of a woman seeking an abortion by Weddington. Thirty-three years later, she recounted being told, “Yes. You’re white. You’re young, pregnant, and you want an abortion.” Demographics were key to Weddington’s plan since, though Jim Crow laws no longer existed, it was reasonable to assume that the case would be far more successful if the jury (who were likely to be white and probably still influenced by the shadow of Jim Crow) sympathised with Jane Roe.

“Wade”, however, was not a pseudonym. Henry Wade, unlike Sarah Weddington, had extensive legal experience, for example as the prosecutor against Jack Ruby, the murderer of Lee Harvey Oswald (who had killed President John F. Kennedy). He was the District Attorney (essentially, chief prosecutor) for Dallas County, the second most populous county after Harris County (which has Houston). As one of the most important lawyers in the state, when Jane Roe (Norma McCorvey), represented by Sarah Weddington et al., filed their case arguing that state abortion laws were unconstitutional, he took up the defendent’s role.

The case was the first that Sarah Weddington had tried, initially tried in the US District Court and later in the Court of Appeals. After the judges in the Court of Appeals found that the law violated the ninth ammendment’s right to privacy, the state appealed to the Supreme Court. There, the ruling was upheld, as the right to privacy was “broad enough to encompass a woman’s decision whether to terminate her pregnancy.”

The case did not rule on when a foetus becomes a person, nor did it exclude the possibility of limits regarding how late an abortion may be carried out; the pregnancy trimester framework was created by the court in this ruling for this purpose! Most relevant to the overall impact of the ruling, the court ruled that during the first trimester, states should impose minimal restrictions on the right to an abortion.

However, if we focus more on the individuals involved in this case, we see the emotional heart of this case. Later in life, Norma McCorvey described her decision to be Jane Roe as one of the worst decisions of her life, and worked with anti-abortion activists. On the other hand, without a doubt thousands of women have had abortions that would not be possible without Roe v Wade. Though, in our Zeitgeist we remember Roe v Wade almost only because of its broader impact, I think looking at the motivations and backgrounds of the people involved in the case is an often overlooked aspect of this trial.

Furthermore, it allows us to better understand the emotions that could have affected the trial, which can raise internal questions about the role of emotion in law: for example, why was Weddington’s success at least partially dependent on the colour of McCorvey’s skin? How do we weigh up McCorvey’s regret later in life with Weddington’s experience of an illegal abortion? I do not have any answers for these, but in light of Roe v Wade’s lesser-known aspects, we can reflect on all of those questions, and it is for this reason that I have chosen Roe v Wade as the case of this week.

Well, in 1710 the Statute of Anne was passed (also called the Copyright Act, 1709 or 1710). It intended to prevent the unauthorised copying of authors’ work, “to the ruin of them and their families”. To that end, it declared that, from the passing of the law, authors of already published works would have exclusive printing rights for twenty-one years (unless they sold the rights to someone else), and that for any works published after the passing of the law, those rights would be granted for fourteen years, but only if their work was put into “the register-book of the company of stationers, in such manner as hath been usual”.

The statute had one more aspect which is important to our case: it said copyright would “return to the authors [of a work], if they are then living, for another term of fourteen years”, meaning a maximum length of twenty-eight years for newly published works. With this, the public domain is implicitly defined: it is simply the set of all works that have passed the initial fourteen years and, if the author is still living, the additional fourteen years as well.

Donaldson v Becket is essentially the common law confirmation of this statute. Alexander Donaldson, in Edinburgh, sold cheap copies of books whose copyright had expired, to the anger of London booksellers. Samuel Johnson, the author of one of the first English dictionaries, dismissively called him “no better than Robin Hood, who robbed the rich in order to give to the poor.” This reads almost as a compliment now, but Johnson and the booksellers were absolutely irate, and thought that copyright should apply indefinitely.

So, they brought a case against him to the House of Lords. The judges and the lords were asked to consider, essentially, whether there was a right to perpetual copyright in common law, and whether that right was overruled by the Statute of Anne. They ruled that while common law gave a right to authors that they may hold exclusive authority over their published work, the statute did in fact override this, and the right to publish a work in perpetuity no longer existed in England. There was a misreporting about whether or not the judges said that the statute overruled, or was compatible with, common law, and there is still some debate about which one the judges actually meant, but given the outcome of the trial I think overruling is the correct interpretation.

Lord Camden provided the most poignant critique of the booksellers’ views, as he called the supposed common law right “as odious and selfish as any other, it deserves as much reprobation, and will become as intolerable”, and warned that if a perpetual right were granted, “all our learning will be locked up in the hands of the Tonsons and the Lintots of the age” (both famous booksellers that held rights to many important works). The peers, to whom the judgements of the judges were given, agreed that the time-limited rights of the Statute of Anne could and did override any common law right to hold intellectual property in perpetuity. The twenty-eight year limit was a maximum - well, until more recent cases allowed publishers to extend it.

This case should also be put into the context of the “Battle of the Booksellers” which had been ignited by the Statute of Anne. For thirty years before this case, booksellers had been trying in various ways to extend the twenty-eight year limit, but Donaldson v Becket put an end to this, affirming the existence of the public domain, though the exact phrase “public domain” would not be used until the mid-1800s.

The public domain’s importance has been huge - it is the reason anyone can make copies of Jane Austen, or perform Mahler’s symphonies, without having to pay royalties to some firm that has bought up all the rights. Furthermore, the “copyleft” movement, which sprung out of the idea of the public domain, is behind the software that runs this website! So, I have chosen Donaldson v Becket as the case of the week due to its importance in preventing copyright from turning into publishers’ eternal monopoly.

Further Reading:

A commentary on this case: https://copyrighthistory.org/cam/commentary/uk_1774/uk_1774_com_1072007103444.html

However, today I want to look closer at the judgement given in R v Dudley and Stephens (I should note that the “R” stands for Rex or Regina, meaning King and Queen respectively, and this is the standard format of criminal cases, as they are essentially cases about whether or not you’ve broken the laws of the king or queen). This judgement is interesting because it very explicitly draws on morality, and brings up discussions about the extent to which we should keep the moral standards of the past in our laws.

Lord Coleridge (great-nephew of the famous Samuel Taylor Coleridge) read out the judgement of the case which, of course, found the seamen guilty, since necessity was not a justification for murder. First, he narrows the scope of the judgement:

“It is said that […] definitions imply […] that in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever […]. But if these definitions be looked at they will not be found to sustain this contention.”

By exluding the idea that there is already an exception in law for murder by what he will term later in the judgement as “necessity”, Lord Coleridge moves the discussion of the legality of the men’s actions towards the morality of their actions: though the law does not already have an exception, should it?

Lord Coleridge asserts that the court has not forgotten

how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure."

Yet, in the very next sentences Lord Coleridge states that the above cannot be seen as valid excuses for the crime of murder. The law must, indeed, set a high bar of conduct, even one that the people setting out the judgement could not meet. Let us go back a bit now, to what I believe to have been the primary justification for this high standard, and examine it further:

the duty of dying for others has been laid down [by Latin and Greek authors] in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for.

Here, Coleridge makes a very explicit point about what he thought to be the highest source of Law as such, the “Great Example” of Jesus Christ. Of course, the judgement was passed in the Victorian Era, when aside from a few small communities, the majority of people were Protestant Christians, and so this raises the question about whether or not we can accept a legal framework which is utterly dripping in theological reasoning for its judgements, here stated plainly of course but placed largely implicitly in the majority of the law from the time of Glanville in the Middle Ages, even up to perhaps the 1960s.

I think we can also juxtapose this with our first case, the Nuremberg Trials, which challenged legal positivism, because if common law’s moral aspects are only incidental to its validity as a legal framework, this places the question of whether we can then, as an increasingly secular society, allow the bases of common law to remain slow to change, and thereby more and more distant from the way we view modern society, or conversely change the law at an increasingly rapid pace through statutes (that have precedence over case law) to fit with our evolving conceptions of morality. Legal positivism does not direct us in either direction, but the Augustinian theory of natural law definitely does: we ought to choose one of these paths depending on where we believe morality leads us.

So, not only has R v Dudley and Stephens been useful in an examination of the system of common law, as a clear example of how case law functions, through a discussion of the religious nature of the judgement passed within it, we also get a number of questions about the place of religion in law, and whether or not this is a valid basis for determining the legality of an action. I would like to thank the reader who asked me about this aspect, and it is for this dual significance of R v Dudley and Stephens that I think it deserves to be the case of the week for, well, another week.

While many crimes have both cases and statutes to draw from, murder is a common law offence. The earliest treatise on common law, which is comonly called Glanville, defines murder as “secretly perpetrated —no one seeing— no one knowing of it, save the person committing it, and his Accomplices, so that Hue and Cry cannot be presently made after the Offenders”. This element of secrecy may seem odd, and it disappears by the time we get to Sir Edward Coke, illustrating how common law is less rigid and changes slowly over time than statutory law.

Sir Edward’s definition of murder is as follows: “Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforthought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day of the same.” Later on, the “year and a day” part was dropped, but the definition since then has remained more or less the same.

Now, about “unlawfully killeth” and “malice aforethought” - is it an unlawful killing, and does it have an intent that fits murder, if the killing is out of sheer necessity (but not covered under something like self defence)? Specifically to our case this week, if I have to kill someone to avoid my own starvation, have I still committed murder?

R v Dudley and Stephens ruled that yes, that is still murder, and the excuse of necessity is not valid. The case revolved around a ship stranded at sea, where the crew had run out of food. With little hope of rescue, and starving, with no water to drink either, Tom Dudley and Edwin Stephens decided (with or without the affirmation of their other crew member, Edmund Brooks) to kill and eat the youngest member of their crew, Richard Parker. After this, Brooks and Dudley ate most of Parker, while Stephens ate very little. They were rescued by a German ship several days later, and returned to England approximately a month after that.

The court had to decide whether this necessity justified murder, and in the end they ruled that it did not. They had to, among other things, consider the definition of murder, which was several hundred years old even then, and also a previous cannibalism-at-sea case where the judge had pardoned the perpetrators. The court was sympathetic, however, to the men’s circumstances, and though two of the men were sentenced to death (Brooks being a witness), there was a recommendation of mercy, and in the end the men were released about six months later.

The case is still cited today and taught to law students, and I think that the case of R v Dudley and Stephens is a good example of common law in practice: we have a crime that exists due to common law rather than by statute, and a case that had to consider what came before (the fact that a previous judge had pardoned homicide at sea for necessity), which in the end changed the law as a new brick on top of the whole wall of law (overruling the previous case, and stating that necessity was not a justified excuse). So, because of what it can teach us about case law, I have chosen R v Dudley and Stephens as my second case of the week.

Saint Augustine argued that “An unjust law is no law at all,” but modern jurisprudence has tended to err in the opposite direction, towards the idea of legal positivism. This idea states that, whether a certain law is good or not, is an entirely separate question to whether or not it is a law. Instead, law is based on some other factor (though the specifics depend on whom you ask), for example the state’s ability to enforce a given rule. Of course, legal positivists can still state that they believe the law should be a certain way, but it just means that how the law actually is has no bearing on it: to Augustine, an unjust “law” was never a law, while to a legal positivist, an unjust law is simply a bad law, subjectively speaking.

One objection to the positivist case, however, arose during the Nuremberg Trials following World War II. The Allied powers, having defeated the Nazis, were now looking to punish high-level Nazi officers for their crimes against humanity, for example in designing and carrying out the Holocaust, as well as crimes against other groups, such as Romani, Slavic, disabled, and homosexual people.

There was just one problem: we say “crimes”, but had they actually done anything illegal? What they had done was obviously wrong, but as we see above, legal positivism states that morality and legality are two separate questions. Yet, not only was the Holocaust completely legal when the Nazis had done it, it was the state’s official policy. Surely you can’t punish someone through the legal system, for doing something not only legal but mandated?

But, it would be completely contrary to justice, to let all Nazis get away with their crimes with absolutely no repercussions. The Nuremberg Charter justifies its prosecution, then, by clarifying that an act may be a crime against humanity “whether or not in violation of the domestic law of the country where perpetrated” (Article 6). No rigorous jurisprudential justification is given within the Charter itself for this decision, though it may be morally obvious.

However, we can look to the Radbruch formula for one possible justification: Gustav Radbruch, a German legal scholar in the Weimar Republic who was fired when the Nazi regime came into power, wrote an essay in 1946 where he moderates legal positivism with the purpose of law, namely justice. Radbruch wrote that a law may be unjust and still be valid insofar as it is a law, unless the conflict between the law and justice itself reaches an “intolerable” degree that forces justice to come first. That is to say, while yes, unjust laws can exist, if the very purpose of a law is injustice, then that law loses its nature as a law.

HLA Hart criticised Radbruch for writing “a passionate appeal supported not by detailed reasoning but by reminders of a terrible experience,” and Professor Lars Vinx writes that “To insist on the separability of law and morality, in Hart’s view, is to strip the law of an undeserved aura of presumptive legitimacy”. So, by Radbruch’s insistence that the law have at least some semblance of justice, that is, at most a tolerable degree of separation between justice and law, Hart argues that Radbruch entirely ignores legal positivism: he is, supposedly, just returning to “an unjust law is no law at all” in a very roundabout way. Prof. Vinx, in his essay (see below), defends Radbruch from this harsh criticism by Hart, but the detailed argument is outside the scope of this essay.

Overall, then, the Nuremberg Trials, aside from their important real-world consequences, give us a very good testing ground for theories of what the law actually is, and the conflicts between law and morality, since they force us to question to what extent unjust laws can be said to be “laws” in the first place, and whether punishing war criminals is just another example of a state using its power to retroactively enforce laws, a concept we can justify through careful consideration of the relationship between law and justice, or something else entirely. It is for this reason that I have chosen the Nuremberg Trials as my first case of the week.

Further Reading:

Lars Vinx’s essay, ‘Gustav Radbruch’s Legal Philosophy: From the Cultural Concept of Law to the Radbruch-Formula’ https://doi.org/10.17863/CAM.119726

The Nuremberg Charter: https://ihl-databases.icrc.org/en/ihl-treaties/nuremberg-tribunal-charter-1945

A more comprehensive article on legal positivism: https://plato.stanford.edu/entries/legal-positivism/