Article
The Judicial Invention of Property Norms: Ellickson's Whalemen Revisited
University of Toronto Law Journal
(2013)
Abstract
Robert C Ellickson argues that the close-knit community of American whalemen in the nineteenth century used norms of their own creation to settle arguments over contested whales without violence or frequent litigation. Ellickson also contends that these norms were largely adopted by courts as the property law of whaling. A close examination of trial transcripts and depositions from two litigated whaling disputes reveals, however, that whalemen settled contests not upon clear and widely accepted norms but rather upon the application of some rather general maxims that were often poorly understood even by experienced captains and crews. Whaling disputes were, in fact, most often settled through compromises grounded in inchoate notions of what constituted honourable behaviour arising out of the particular situation and parties involved. In seeking to settle the handful of litigated disputes, judges drafted opinions that suggested a level of agreement among whalemen as to prevailing norms that never existed at sea. The scholarly acceptance that judges accurately stated whaling customs explains the mistaken belief that whalemen created the American property law of whaling. Instead, judges and the lawyers who represented ship owners were, to a large degree, responsible for creating much of what came to be memorialized in legal treatises by the end of the nineteenth century as the property law of whaling.
Keywords
- customary law,
- whaling law,
- ferae naturae,
- Heppingstone v Mammen,
- Swift v Gifford
Disciplines
Publication Date
2013
Citation Information
Robert Deal. "The Judicial Invention of Property Norms: Ellickson's Whalemen Revisited" University of Toronto Law Journal Vol. 63 Iss. 1 (2013) p. 73 - 96 Available at: http://works.bepress.com/robert_deal/5/