A colleague, while discussing corporate takeovers, recently asked me about the origins of the term straw man— hence this week’s blog entry. I’m always happy to make the connection between the contemporary and the historical! A straw man, as the term is commonly used, typically has two meanings: the first of these is commonly used in political or other debates, where a straw man or straw man argument is essentially a misrepresentation of an opponent’s argument by comparing a statement one’s opponent has made with a false (yet superfically plausible-sounding) equivalence and then refuting it. This gives the appearance of having refuted the opponent while in reality one has merely refuted a distorted version of what he or she had originally said. This can be a highly effective debating tool–effective but intellectually bankrupt. Common means of creating a ‘straw man’ argument involve exaggerating, over-simplyfing, or decontextualizing an opponent’s position, or inventing a character that ostensibly reflects the views with which one is in disagreement, or “quoting” some unnamed person that is said to be representative of the opponent’s arguments. The etymology of straw man in this context probably refers to the straw-stuffed dummies historically used for bayonnet drills and the like by the army, or by boxers of old, as they provide no resistance and make success assured. What does this have to do with the rise of the jury trial? As far as I know, nothing!
The other meaning of straw man, however, may very well have a great deal to do with jury trials. In this usage of the term it refers to someone who is a figurehead or a stand-in for someone else (either a real or corporate person). In some instances, a straw man is used in order to meet the letter of the law in such contexts as property conveyances: the common law has traditionally held that one cannot convey property to oneself; if one holds property and wishes to convert it to a joint tenancy (owned equally with another person), then the one can “convey” the property to a straw man (such as one’s lawyer) who is nominally then the owner but only in name; the straw man then conveys the deed to the original owner and their new joint tenant. In this context a legal fiction is used in order to achieve a desired, and lawful, purpose. Straw men can also be used for illegal purposes or as a means of skirting the law; for example, for money laundering purposes a straw man may hold ownership of a business while the real owners (e.g., an organized crime syndicate) stay in the shadows. A straw man may be used to shield someone from liability; shell corporations (corporations that exist in name only but have no real assets) can be used for this purpose to essentially make owners judgment-proof. The etymology of this type of straw man seems to have its origins in an ancient medieval legal practice known as compurgation. Compurgation was the swearing of an oath, usually a very specific, ritualized oath, in order to settle a legal dispute. One party would “purge” himself of the charges or legal claim by undertaking the oath without error or hesitation before witnesses, and was used in the U.K. until the early 17th century in debt cases. The party would bring witnesses (usually 11) to attest to the truthfulness of their claim; this made sense when communities were small and tight-knit and if one was attesting to a claim that had actually occurred before numerous witnesses and where was one able to get 11 people to testify to the party’s credibility. The shortcomings of such a system are quite obvious, which eventually led to the rise of a class of professional ‘oath helpers’ who congregated around court houses and offered to swear to the veracity of a party’s claim for a fee. While perhaps apocryphal, it is said that they would advertise by having tufts of straw poking out of the tops of their boots, thereby letting the initiated know their availability as a professional oath helper– and hence the origins of the term straw man. Indeed, as justice was centralized in royal courts it became completely impractical to bring in 11 people from afar to testify in routine cases. By the end of the 16th century part of the official duties of court porters was to find these professional ‘oath helpers’ to assist in the ritual of legal process. This process begain to die out by 1600 and was largely forgotten by the end of the 17th century at the same time that the jury trial became more and more entrenched as a means of settling criminal, and later civil, cases. The jury, or jurata, were required to swear an oath to deliver a true answer (or verdict); its members were therefore known as jurors (or juratores) referring to the fact that they were people who had been sworn. While they were originally supposed to know something of the truth of the matters that came before them– hence the reason they were culled from the environs near where the cases occurred–juries were to morph into groups of 12 people who were to be disinterested in the outcome of the trial but tasked to ascertain what the true facts were.
And if you think jury duty is an onerous burden now, wait until you hear what being a juror used to be like–which gives me an idea for my next blog entry!