UNCOMMON
LAW, by A.P. Herbert. 494 pages. Dorset
Although
these 66 humorous essays were written 80 years ago in another land,
some of A.P. Herbert's themes maintain their relevance today.
Particularly his bitter campaign against England's (but not, as he
was always careful to note, Scotland's) divorce laws.
Divorce
is a thriving legal business in America today, but only because of
the ingenuity of aggrieved spouses; there are not, I conceive, any
legal philosophical issues of note. However, many of Herbert's points
can easily be recast into the same-sex marriage debate.
Herbert,
trained in law, wrote for Punch as the Victorian (and earlier) legal
ideas were giving way, reluctantly, to modernism in England. Not a
questioner of class values, he did not touch the kind of
political-legal issues that, say, Claud Cockburn was ventilating in
The Week. A novelist by profession, Herbert was more interested in
social norms.
In
one of the first of his “Misleading Cases,” he asks whether an
Englishman has the right to jump off a (low) bridge just because he
feels like it. Constable Boot (one of a cast of recurring characters)
thinks not though he cannot quite say why.
Albert
Haddock, who ought to be as well known as Colonel Blimp or Mr. Polly,
thinks so.
Haddock
spends much of his time duelling with tax collectors, but the more
interesting essays are about regulations of personal conduct:
drinking hours, marriage, publishing.
It
is not easy to state briefly why these essays are funny. They are so
in the low-key Punchian way; in an early essay, Herbert has a judge
refer to a reasonable man as “this excellent but odious character.”
(The judges have humorous names like Wool and Sheep, but in an
introduction Herbert writes that such obvious tipoffs failed to
prevent a few provincial journalists from falling for these legal
“reports” as the real thing.)
After
writing these japes for about a decade, Herbert was elected to
Parliament, where he was successful in reforming England's licensing,
divorce and obscenity laws, something that I think no American
humorist can match.
His
overall strategy – employed both humorously and seriously – was
the reductio ad absurdam: “The way to remove a fantastic measure
from the statute book is not to evade or ignore it but to enforce
it.”
Of
all the absurdities, Herbert felt the divorce restrictions most
keenly: “Legal actions concerning the personal relationships of men
and women must always be odious to a civilized community.”
(It
has little to do with Herbert, but it is interesting to note that at
precisely this time, England's imperial administrators made a point
of not interfering in sharia law where it concerned issues of
personal status, like marriage, in the colonies, although some of
these rules would have been odious to Herbert – and some not.
Divorce was easy for Muslim men, and while Herbert was for easy
divorce, he was careful to demand fair treatment for the parties,
something not found in sharia law.)
It
is a measure of Herbert's passionate feelings about divorce that
while most of these feuilletons (as they would be called in Europe)
run about 20 or 30 paragraphs, he has a piece (Called “ 'Not a
crime' “) about divorce that runs 20 pages, and he expanded it into
a whole book, “Holy Deadlock,” which he claimed led to the reform
of the divorce laws.
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