The Persistence of a Legal Fiction

I just finished writing an exceedingly brief review of Bradin Cormack’s A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509-1625 for Law and History. As often occurs, the limitations of the allocated space precluded discussion of many aspects of what I found to be a masterful book. Cormack’s work demonstrates the significance of seemingly technical problems of jurisdiction to the construction of sovereignty in early modern England, transcends a number of the critiques levied against scholarship in law and literature, and reveals how sophisticated readings of literary texts can contribute to legal history. In addition, A Power to Do Justice strikes a number of notes of contemporary relevance. One, in particular, suggests that the approach to legal fictions in seventeenth-century England might not be all that different from at least some attitudes toward them today.

The final chapter of Cormack’s book situates the 1624 play A Cure for a Cuckold, produced by a collaboration among John Webster, William Rowley, and John Heywood, within the context of common law and ecclesiastical courts’ treatments of the status of a child born within marriage who appears not to be the offspring of the marital father. This was, of course, the situation contemplated in the U.S. Supreme Court case of Michael H. v. Gerald D. (1989). In his opinion, Justice Scalia, writing for a plurality of the Court, relied in part on the common law presumption of the paternity of a marital father to uphold a California statute of similar substance against the substantive due process claims of Michael H. to a declaration of paternity and a grant of visitation rights, even though a blood test had suggested a very high likelihood that the child at issue was actually his. As Scalia’s opinion observed, “[w]e have found nothing in the older sources, nor in the older cases, addressing specifically the power of the natural father to assert parental rights over a child born into a woman’s existing marriage with another man” (125). Had the range of materials deemed relevant included plays as potential precedents, Scalia might have been able to adduce additional justifications for the outcome from A Cure for a Cuckold.

What renders the resemblance between A Cure for a Cuckold and Michael H. particularly intriguing is that, in both instances, the conventional justifications for the common law principle do not hold. The common law presumption and its statutory successors were not absolute, but, at the same time, they contained only limited exceptions; as Cormack summarizes these, first, “a husband’s impotency or inability to procreate undermines the presumption of legitimacy,” and, second, “legitimacy was measured along the axes of geography and time,” so that, quoting Sir Edward Coke, a husband was required to have been “within the four Seas, that is, within the Jurisdiction of the King of England” (295). Three principal rationales appear to have supported the common law approach. First, the rules prescribing inheritance through a paternal line, including primogeniture, increased the stakes of declaring a marital child illegitimate—and, hence, unable to inherit. Second, in the absence of a definitive mechanism for establishing the biological relation between father and child, the common law presumption helped to ensure that unreasonably suspicious or simply unreasonable husbands could not renounce their heirs. Finally, the common law approach encouraged the maintenance of marital harmony.

None of these rationales appear particularly compelling in either A Cure for a Cuckold or Michael H. Furthermore, both cases press the legal fiction upon which the common law presumption is premised to its breaking point. The question that Cormack views as the crux of A Cure for a Cuckold could as well be asked of Michael H.: “[W]hat does the law look like when it goes beyond even the common law’s own impressive fiction-making?” (297-98). The obsolescence of the rigid English structures of inheritance law renders the first rationale inapplicable to Michael H.; it is not, however, compelling even in A Cure for a Cuckold, because the biological father, Franckford, is identified as a rich merchant, and has, in the absence of Compass, the marital father, been providing amply for the child and even arranged for him to inherit land. Furthermore, the blood test establishing a more than 98% probability that Michael H. had fathered Victoria, the child involved, indicates the decreased necessity for caution about potentially false claims of illegitimacy; on the other hand, because Compass had been out of the realm not only for at the time of delivery but also at that of conception, it would have been virtually impossible for him to have fathered his wife's child—as a boy informs him on his return, “You know ’tis four year ago since you went to sea, and your child is but a quarter old yet” (II: iii: 35-36). In addition, in neither scenario did the simple fact of illegitimacy seem to prove detrimental to marital harmony. In Michael H., the mother, Carole, had not always remained with her husband, Gerald D., but had even lived with Michael H. briefly; similarly, in A Cure for a Cuckold, Compass seems hardly unaware of the circumstances that would have led a child to be born during his prolonged absence.

Nevertheless, in each instance, the common law presumption is upheld. The protagonists of A Cure for a Cuckold, like the individuals involved in Michael H., actually litigate against each other; although the judge initially is firm in favor of Franckford’s position based upon the civil law, Compass quickly persuades him to reverse his position and rest his decision on the common law. Despite the stretching of the legal fiction to a point of extreme implausibility, the common law rule remains forceful, asserting the power of a paternity that is not biological but instead constructed. In A Cure for a Cuckold, though, unlike in Michael H., the biological father is at least given the ability to visit the child; as Compass tells Franckford towards the end of the play, “And for your part, father,/ Whatsoever he, or he, or t’other says,/ You shall be as welcome as [before]” (V: i: 426-28). Whatever the law may say, it doesn’t always have the last word.

Chinese Law in Confucian and Other Cultural Contexts

Over the past few days, I have been attending a conference in Ithaca on "Law in Context" that occurred as part of an ongoing collaboration between scholars at the Peking and Cornell University Schools of Law. Many of the representatives of the Peking faculty were on the younger side and appeared both to be introducing new emphases into legal scholarship in China and to be reflecting on the potential perils of the rapid changes that are now occurring not only in China generally but in its legal system in particular. Indeed, one of the trenchant pieces of traditional wisdom that was mentioned early in the conference appeared to carry its implications over through the duration: "More haste might result in less speed."

Along these lines, Ling Bin's paper on "Legal Professionalization in the Context of Legal Popularization" juxtaposed the vantage points of ancient legal reformer Lord Shangyang and the character of Qiuju from the fabulous film starring Gong Li and explained how the turn towards an increasingly systematized version of the rule of law might detrimentally affect some of the earlier sense of each individual being able to access law on her own. The presentation concluded with an animated discussion about this issue among several of the Chinese scholars, some of whom were more enthusiastic about the turn towards professionalization than others. 

Another excellent presentation revealed the ways in which technical legal principles may not entirely dictate the outcome of various cases, even those decided by the Supreme People's Court. According to Lou Jianbo, although there are a number of restrictions on entering into contracts for land--including limitations on foreign ownership as well as on city dwellers purchasing farms,--the Supreme People's Court has on a variety of recent occasions either circumvented these limitations and upheld agreements or crafted remedies that allow even a party prohibited from entering into the contract to obtain some value from it. Eduardo Penalver, commenting on the paper, suggested that the Supreme People's Court might be implementing something like Guido Calabresi's recommendations for how courts should treat statutes that have outlived their utility. Lou Jianbo thought this was a plausible explanation, especially because the agencies that had promulgated some of the restrictions often revised or removed them after the court's decision. At the same time, however, these practices of the Supreme People's Court also seem to bear some resemblance to the tradition of equitable decision-making. When, in particular, an agency has indicated that a stringent rule remains in force, and the court crafts remedies designed not to deprive parties of all value they might have obtained from a contract disregarding this rule, this activity is reminiscent of seventeenth-century English practices in Chancery. Like the Chancellor engaging in equitable decision-making, the Supreme People's Court appears to be providing some relief from the formalities of ordinary law. 

These and other papers--including one on "Corrective Justice in the Confucian Legal Tradition: A Nonexistent Concept"--seemed to indicate that it would be inadvisable to allow the haste to professionalize to leave behind less easily codified or formalized kinds of knowledge or practices that might provide valuable substrates for Chinese law.