"On Me Fait Tort!"
When you think of the English Channel, you might conjure up an image of a person trying to swim across it, or perhaps the “Chunnel” comes to mind. Less well-known, but perhaps more interesting, are the Channel Islands. Although physically much closer to France, the Channel Islands combine English culture with their own brand of independence, as the islands are a Crown Dependency of the United Kingdom but retain a tremendous amount of sovereignty (for example, they neither are nor ever were a part of the EU). The names of the islands are even less familiar to most people than their existence: Jersey, Guernsey, Alderney, and Sark being the largest. Jersey and Guernsey may be best known for what’s been named after them: the former is the namesake of the Garden State and the latter has lent its name to a type of cow. But almost nobody has ever heard of Alderney or Sark. And that’s a shame, because Sark is fascinating.
An aerial view of Sark
The one thing you really need to know about Sark to appreciate its special place in the world is that it operated as a legitimate, medieval-style feudal state until 2008. It was lorded over not by a lord but by “the Seigneur,” who, until 2008, lived with fun privileges like being the only person on the island allowed to own pigeons or an unspayed dog. The Seigneur presided over a population of 600, but among them only 40 were allowed to own land. These 40 landholders, called Tenants, comprised most of the government’s formerly unelected parliament. Until 1999, women were not allowed to inherit if they had a brother. And before 2002, divorce was only allowed if one of the parties left the island for a year. Sark! You can’t make it up.
Among the totally unusual customs and traditions in Sark (as well as in the other Channel Islands) is something called the Clameur de Haro, which can be invoked when a person believes his (and we do mean “his”!) property rights have been violated by another citizen by reciting the Lord’s Prayer in French and crying out: "Haro! Haro! Haro! A l'aide mon Prince! On me fait tort!" which roughly translates to, "Hear-ye! Hear-ye! Hear-ye! Come to my aid, my Prince, I am being wronged by a tortious act.” According to tradition, the wronged party must recite the clameur while kneeling on the “threatened property,... bareheaded, hands clasped, in the presence of two witnesses and [within] the hearing of the alleged wrongdoer.”
“Haro! Haro! Haro! A l’aide mon Prince! On me fait tort!”
Once the wronged party invokes the Clameur de Haro, all actions against the person and their property must cease until the matter is heard by the courts. This practice originates from Norman law as the Channel Islands were once part of the Duchy de Normandy, and the last time the Clameur was invoked in Sark was in 1970 when one Sarkese was building a wall on another Sarkese’s property (presumably these were two of the 40 designated tenants).
There is something special about the Clameur de Haro. It is a way of not just seeking compensation for wrongs, but actually proclaiming them in front of the world, which has its own intrinsic value. In a way, a lawsuit is nothing more than a lengthy and complicated version of the Clameur de Haro because is also is a statement that says, “I’ve been wronged.” And many people sue one another not for money, but for the opportunity to “have their day in court” and face the person who has injured them.
As we continue our tour of Theories of Torts, it is crucial to understand that a lawsuit is, in and of itself, an end for many people. To this point we’ve discussed how tort law can make the injured whole and we’ve talked about how it can change behavior. This article is about something even less tangible. It is about dignity. Broadly speaking this is sometimes called Civil Recourse Theory, because it emphasizes that when a person is wronged, they can and should have a recourse to address the wrongdoer.
From our cases, we might see Werth v. Taylor as an example of a plaintiff pursuing a lawsuit in order to state that they were wronged. The plaintiff in Werth v. Taylor was a Jehovah’s Witness who underwent a dilation and curettage (D&C) procedure, a typically safe and uncomplicated operation, after the birth of her twins. Due to the plaintiff’s religious beliefs, she did not want a blood transfusion should it be necessary because Jehovah’s Witnesses believe that receiving blood transfusions is a sin. Unfortunately, the D&C did not go as planned and the mother started seriously bleeding. Normally, doctors could control this with a blood transfusion. And although the mother informed her doctors that she did not want a blood transfusion, they did it anyway to save her life.
This is a spiritual wound of the highest order. If we are to credit a Jehovah’s Witness’ faith, one might interpret the doctors’ decision to perform the blood transfusion against the plaintiff’s wishes as a nearly mortal injury to her soul. Clearly, no amount of money will ever make up for that type of injury. This case is unusual in that there is no cause of action for wounding one’s soul (perhaps NIED?). Instead, the plaintiff sued for battery, but we might as well think of this as a type of “wrongful life” case. And while we don’t know for sure, we have every reason to believe that Werth v. Taylor falls into the category of civil recourse cases. The plaintiff was wronged in a way that could never be recompensed in her eyes. However, she still wanted her day in court even though no amount of damages could ever “make her whole.”
A close cousin of Civil Recourse Theory is Corrective Justice Theory, which states that just as the plaintiff needs their day in court to state their grievances, so too does the defendant in order to accept responsibility for the harm inflicted.
Again, looking to our cases we might find an example of Corrective Justice in Alcorn v. Mitchell. In this case from 1872, the defendant was fined a $1,000 for spitting in the face of the plaintiff on the courthouse steps. That’s a lot of money for one expectoration! According to one of the internet’s mildly-misleading inflation calculators, that’s $18,341 (the cost of a Subaru Impreza!) in today’s world. The defendant claimed that $1,000 was an excessive fine, but the judge strongly disagreed, using a number of florid phrases to talk about the “malignant” act that the defendant committed:
“The act in question was one of the greatest indignity, highly provocative of retaliation by force, and the law, as far as it may, should afford substantial protection against such outrages, in the way of liberal damages, that the public tranquillity may be preserved.”
“[T]hat single dollar amount is of immeasurable value in the scheme of things...It says no means no for all women.”
He went on to describe the courtroom as a “temple of justice” that was disrespected by the defendant’s act. In this instance, the judgment seems to be not for the plaintiff as much as against the defendant. It’s a good example of Corrective Justice Theory, as Alcorn was not so much about compensating a loss as it was about punishing the defendant to a degree that was commensurate with the indecency of his act.
A modern day example of a Civil Recourse and Corrective Justice case might be Taylor Swift’s sexual harassment suit against former radio DJ David Mueller. Swift claimed that Mueller sexually harassed her during a photo shoot and saw her day in court as an opportunity to stand up for women’s rights in the workplace. Rather than demand significant damages, she asked for only a dollar because she saw the lawsuit as a symbolic gesture of support for other women. During closing arguments, Taylor Swift’s lawyer explained, "that single dollar amount is of immeasurable value in the scheme of things...It says no means no for all women."
From the Clameur de Haro to the Taylor Swift action, some cases seem to be more about honor and dignity than about collecting money damages. Because while money is fleeting, respect and self-respect have an eternal quality. It would be naive to think that this doesn’t play a massive role in most tort actions, and it’s yet another example of how tort law is about so much more than making the injured whole.
-Ellis & Acton