Feminists often make that claim that the "rule of thumb" used to mean that it was legal to beat your wife with a rod, so long as that rod were no thicker than the husband's thumb. Thus, one constantly runs into assertions like this:
someone might want to be careful using "rule of thumb" in a sarcastic way. my criminal law teacher at UCLA noted that rule of thumb started in England for punishing wives who cheated on their husbands. the rule was that the rod used to beat them could not be thicker than one's thumb(!).
...The 'rule of thumb' story is an example of revisionist history that feminists happily fell into believing. It reinforces their perspective on society, and they tell it as a way of winning converts to their angry creed...
The 'rule of thumb', however, turns out to be an excellent example of what may be called a feminist fiction. Is is not to be found in William Blackstone's treatise on English common law. On the contrary, British law since the 1700s and our American laws predating the Revolution prohibit wife beating, though there have been periods and places in which the prohibition was only indifferently enforced.
That the phrase did not even originate in legal practice could have been ascertained by any fact-checker who took the trouble to look it up in the Oxford English Dictionary, which notes that the term has been used metaphorically for at least three hundred years to refer to any method of measurement or technique of estimation derived from experience rather than science.
According to Canadian folklorist Philip Hiscock, "The real explanation of 'rule of thumb' is that it derives from wood workers... who knew their trade so well they rarely or never fell back on the use of such things as rulers. instead, they would measure things by, for example, the length of their thumbs." Hiscock adds that the phrase came into metaphorical use by the late seventeenth century. Hiscock could not track the source of the idea that the term derives from a principle governing wife beating, but he believes it is an example of 'modern folklore' and compares it to other 'back-formed explanations.' such as the claim asparagus comes from 'sparrow-grass' or that 'ring around the rosy' is about the plague.
We shall see that Hiscock's hunch was correct, but we must begin by exonerating William Blackstone (1723-1780), the Englishman who codified centuries of legal customs and practices into the elegant and clearly organized tome known as Commentaries on the Laws of England. The Commentaries, a classic of legal literature, became the basis for the development of American law. The so-called rule of thumb as a guideline for wife-beating does not occur in Blackstone's compendium, although he does refer to an ancient law that permitted "domestic chastisement"....
In America, there have been laws against wife beating since before the Revolution. By 1870, it was illegal in almost every state; but even before then, wife-beaters were arrested and punished for assault and battery. The historian and feminist Elizabeth Pleck observes in a scholarly article entitled "Wife-Battering in Nineteenth-Century America":
It has often been claimed that wife-beating in nineteenth-century America was legal... Actually, though, several states passed statutes legally prohibiting wife-beating; and at least one statute even predates the American Revolution. The Massachusetts Bay Colony prohibited wife-beating as early as 1655. The edict states: "No man shall strike his wife nor any woman her husband on penalty of such fine not exceeding ten pounds for one offense, or such corporal punishment as the County shall determine."
[Pleck] points out that punishments for wife-beaters could be severe: according to an 1882 Maryland statute, the culprit could receive forty lashes at the whipping post; in Delaware, the number was thirty. In New Mexico, fines ranging from $225 to $1000 were levied, or sentences of one to five years in prison imposed. For most of our history, in fact, wife-beating has been considered a sin comparable to to thievery or adultery. Religious groups -- especially Protestant groups such as Quakers, Methodists, and Baptists -- punished, shunned, and excommunicated wife-beaters. Husbands, brothers, and neighbors often took vengence against the batterer. Vigilante parties sometimes abducted wife-beaters and whipped them.
Just how did the false account originate, and how did it achieve authority and currency? As with many myths, there is a small core of fact surrounded by an accretion of error. In the course of rendering rulings on cases before them, two Southern judges had alluded to an 'ancient law' according to which a man could beat his wife as long as the implement was not wider than his thumb. The judges, one from North Carolina and one from Mississippi, did not accept the authority of the 'ancient law.' The North Carolina judge refered to it as 'barbarism,' and both judges found the husband in the case in question guilty of wife abuse. Nevertheless, their rulings seemed to tolerate the notion that men had a measure of latitude in physically chastising their wives. Fortunately, as Pleck takes pains to remind us, they were not representative of judicial opinion in the rest of the country.
In 1976, Del Martin, a coordinator of the N.O.W. Task Force on Battered Women, came across a reference to the two judges and their remarks. Neither judge had used the phrase "rule of thumb," but a thumb had been mentioned, and Ms. Martin took note of it:
Our law, based upon the old English common-law doctrines, explicitly permitted wife-beating for correctional purposes. However, certain restrictions did exist... For instance, the common-law doctrine had been modified to allow the husband "the right to whip his wife, provided that he used a switch no bigger than his thumb" -- a rule of thumb, so to speak.
Ms. Martin had not claimed that the term "rule of thumb" originated from common law. Before long, however, the "ancient law" alluded to by two obscure Southern judges was being treated as an unchallenged principle of both British and American law, and journalists and academics alike were bandying the notion about. Feminist Terry Davidson, in an article entitled "Wife Beating: A Recurring Phenomenon Throughout History," claims that "one of the reasons nineteenth century British wives were dealt with so harshly by their husbands and by their legal system was the 'rule of thumb'" and castigates Blackstone himself. "Blackstone saw nothing unreasonable about the wife-beating law. In fact, he believed it to be quite moderate."
These interpretive errors were given added authority by a group of scholars and lawyers who, in 1982, prepared a report on wife abuse for the United States Commission on Civil Rights, Under the Rule of Thumb: Battered Women and the Administration of Justice -- A Report of the United States Commission on Civil Rights_. On the second page, they note: "American law is built upon the British common law that condoned wife beating and even prescribed the weapon to be used. This 'rule of thumb' stipulated that a man could only beat his wife with a 'rod not thicker than his thumb.'" It went on to speak of Blackstone as the jurist who "greatly influenced the making of the law in the American colonies [and who] commented on the 'rule of thumb,'" justifying the rule by noting that "the law thought it reasonable to intrust [the husband] with this power of... chastisement, in the same moderation that a man is allowed to correct his apprentices or children."
The publication of the report established the feminist fable about the origins of the term in popular lore, and the misogyny of Blackstone and "our law" as "fact." Misstatements about the "rule of thumb" still appear in the popular press.
That same 1993 Time magazine article that popularized the nonexistent March of Dimes study on domestic violence and birth defects and reported that "between 22% and 35% of all visits by females to emergency rooms are for injuries from domestic assaults" also cited new York University law professor Holly Maguigan: "We talk about the notion of the rule of thumb, forgetting that it had to do with the restriction on a man's right to use a weapon against his wife: he couldn't use a rod that was larger than his thumb." Professor Maguigan's law students would do well to check their Blackstone.
Prof. Sommers replies to her critics.
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