News item: Trump press secretary calls lies “alternative facts”
I have mixed feelings about saying this: the law has long lived with “alternative facts.” And it’s lawyers and judges more than politicians who create them.
At law, French fries can be “meat”
Legal fictions, and fact-warping legalese, have been with us since the middle ages. Readers of my books and journalism will know my fondness for the “French fries are meat” cases – prosecutions during the early 1900s under Sunday observance (“Lord’s Day”) laws in Britain. Faced with having to whack the poor who patronized fish-and-chip shops for their sabbath dinner – the underclasses whose purses did not stretch to the fish – the courts decided that “chipped potatoes” could comprise “meat” (which the legislation permitted to be sold, so that you could have your “Sunday joint” prepared commercially). As Lord Alverstone, the chief justice of King’s Bench, put it, come Sunday it “would be ridiculous to say that, although a man may cook mutton, he must not cook an eel pie” or spuds: Bullen v. Ward (1905), 74 L.J. (K.B.).
On further consideration, however, “meat” would not shape-shift to ice-cream sandwiches, never mind dictionaries that defined the word as food generally: Slater v. Evans, [1916] 2 K.B. 124.
Similarly, the courts have told us that a cucumber can be a weapon (in a sexual assault case) but bagpipes cannot, even considering their aggressive sonority and the fact that pipers have led armies into battle. (A piper made this argument after he was charged under a bylaw for playing a musical instrument on London’s Hampstead Heath, abutting a toney neighbourhood. If you have access to Quicklaw, search for my Lawyers Weekly columns on “bagpipe law” and on the Brooks and Reid cases.) Then, too, there is the Ontario dog-bite case in which the accused animal
through its owner, disclaims any vicious propensity, and contends that Mr. Cochrane brought this unfortunate attack upon himself by acting in such a manner as would lead any reasonable dog to suspect ill motives in Mr. Cochrane’s entry, and that, furthermore, Mr. Cochrane, while in the employ of [the dog’s owner], had on one occasion kicked the German shepherd and that the dog was therefore taking retributive and retaliative action.
Given that the dog avoided destruction courtesy of the evidence supporting these assertions, it seems unreasonable to call the “reasonable dog” fiction facetious. Perhaps “bemusing” suffices, as with another Canadian case that tells us that a parking lot can be a “common bawdy house” if the prostitutes using it have sufficient control over the space, never mind that it is bare asphalt.
At best, the reasonable dog might be an uber-“alternative fact” based on the reasonable person, the legal fiction against whom our law measures whether our own conduct merits praise or liability. But the chipped-potato and bawdy-house instances are not precisely fictions in this way. Calling fries meat, or a parking lot a bawdy house, is not exactly a lie, nor is it true only in the alternative universe of legal dialect.
Still, if ice cream is not meat where “chipped potatoes” are, and bagpipes are not weapons where cucumbers can be, how explain the terrain of fictions rarely if ever noted as such, a near territory so vast that it would be impossible to map it comprehensively?
These are instances when judges give truly uncommon or unexpected meaning to words or phrases – often to expressions as ordinary as “French fries,” but without the logic or linguistic support of the French-fries-as-“meat” cases. There’s the U.S. case which says that if you drive around with a gun in the bed of your pickup truck, you are not “carrying” it. Not be outdone north of the border, Ontario gives us a series of insurance cases interpreting the phrase “you are struck by a vehicle” to mean “you walk into a pole on a parked truck” and “a nearby accident blows your mind.” In the first case, a woman recovered damages for being “struck by a vehicle” after, sure enough, she walked into a pole on a parked truck. In the second, the court ruled that a woman could be struck in this way (and perhaps collect damages for both physical injury and mental distress) while sitting in her kitchen when a car crashed into her home without entering the kitchen or touching her. Such instances approach the political, with the judiciary seeming to reach a desired end by straining syntax beyond even the metaphysics of a “fertile octogenarian” – a hoary legal fiction which posited that humans of any age and physical condition can conceive children.
For more detail on these cases and others, see Chapter Five, “Humpty Dumpty in Wig and Gown: Legalese as Dialect, or, the Philology of Precedent” in my The Structures of Law and Literature. Some of the discussion above grows out of my current work on my encyclopedia of legal fictions and presumptions, and constructive, deemed, and implied entities, slated for publication by next year.
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