About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


44 J. Legal Educ. 341 (1994)
Rule of Thumb and the Folklaw of the Husband's Stick

handle is hein.journals/jled44 and id is 351 raw text is: Rule of Thumb and the Folklaw of the Husband's Stick Henry Ansgar Kelly There is probably no truth whatever in the legend that he was permitted to beat her with a stick no thicker than his thumb. W. L. Prosser, 1971' A husband may chastise his wife with a stick the size of his thumb. Coke. Mr. Justice Thumb in the Act of Flagellation Cartoon, 1 February 1782 Murder, eh? It's law, you bitch! It's not bigger than my thumb! Judge Thumb; or, Patent Sticks for Family Correction: Warranted Lawful! James Gillray, Cartoon, 27 November 17822 In a previous intervention in this journal, I was concerned with a subject connected with my overt profession as a teacher of English, namely, the use and pronunciation of Latin phrases in English contexts.' This time I wish to deal with the abuse of an English phrase in legal circles. I hope that the account will prove educational not only in itself but also as an object lesson of how not to manhandle the language. The venerable and innocuous expression rule of thumb has taken a beating in recent years. It has been given a phony origin as designating an allowable weapon for wife-beaters, and in consequence there has been an effort to Henry Ansgar Kelly is Professor of English, University of California, Los Angeles. 1. William L. Prosser, Handbook of the Law of Torts, 4th ed., 136 (St. Paul, 1971). 2. For discussion of these cartoons see infra notes 39-43 and accompanying text. 3. Lawyers' Latin: Loquenda ut vulgus? 38 J. Legal Educ. 195 (1988). The present article also touches upon two other research interests of mine, namely legal mythology and the history of Roman civil law and medieval canon law. A recent exercise of the former interest is my account of the evolution of the myth of election (the notion that American citizens born with dual nationality are required to elect one citizenship upon attaining majority and to renounce the other). Dual Nationality, the Myth of Election, and a Kinder, Gentler State Department, 23 U. Miami Inter-Am. L. Rev. 421 (1991-92). In another study, I have at- tempted to demythologize the origins of our Fifth Amendment protections by showing that they are less indebted to Magna Carta provisions and common law precedents than to the due process provisions of inquisitorial procedure stipulated by canon law. The Right to Remain Silent: Before and AfterJoan of Arc, 68 Speculum 992 (1993). Journal of Legal Education, Volume 44, Number 3 (September 1994)