Governmental Liability By H. Street New York: Cambridge University Press, 1953. Pp. 221. $5.00.
reviewer: Ferdinand F. Stone
======================================
Roman Law and Common Law: A Comparison in Outline, Second Ed. By W. W. Buckland and Arnold D. McNair. Revised by F. H. Lawson New York: Cambridge University Press, 1952.Pp. xii, 439. $7.00.
reviewer: Reginald Parke

Parker, Reginald, (reviewer)

Stone, Ferdinand F., (reviewer)

English

Vanderbilt University Law School: Scholarship@Vanderbilt Law

Vanderbilt Law Review Volume 7 Issue 2 Issue 2 - February 1954 Article 9 2-1954 Book Reviews Ferdinand F. Stone (reviewer) Reginald Parker (reviewer) Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr  Part of the Comparative and Foreign Law Commons, International Law Commons, and the Torts Commons Recommended Citation Ferdinand F. Stone (reviewer) and Reginald Parker (reviewer), Book Reviews, 7 Vanderbilt Law Review 305 (1954) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol7/iss2/9 This Book Review is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact mark.j.williams@vanderbilt.edu. BOOK REVIEWSGovrN TAL LIABILITY. By H. Street. New York: Cambridge Uni-versity Press, 1953. Pp. 221. $5.00.The question of the individual's right to sue the state has in recenttimes been moved from the realm of academic debate to that of pop-ular clamor and legislative action. In part, this change comes as aresult of increased state activity in areas traditionally carried on byprivate interests, but more significantly perhaps, it is part and parcelof times in which the notion of anyone's immunity from liability, beit charitable institution, government, insane person or infant, sitsuneasily with democratic principles. Attack upon these traditionalimmunities is occurring in such widely divergent fields as parent-child, husband-wife and charitable hospital-patient. In the realm ofgovernment, the enactment in the United States of the Federal TortClaims Act of 19461 and in Great Britain of the Crown ProceedingsAct of 19472 gives evidence of this change.3 Professor Street nowrecalls for us in this book the fact that the problem is by no meansunique to Anglo-American law, but is well-nigh universal, and sosets out to explain how the problem is met elsewhere with a view tomaking such recommendations and appraisals concerning the situa-tion as seem to him most useful. Such is the subject of this fourtlipublished study in the Cambridge Studies in International and Com-parative Law.Professor Street, as is the case with every writer who attempts todeal with a legal subject comparatively, had to resolve two questionsat the outset: what jurisdictions would be covered by the study, andin what form would the results of the comparisons be presented?The first question was resolved by the author by concentrating pri-marily upon Great Britain, the British Commonwealth, the UnitedStates and France, with occasional reference to other countries suchas Belgium, Germany and Italy. Some restrictions being necessary,this choice seems a sound one and enables Professor Street to con-trast the modern Anglo-American system with the French systemof administrative courts. The author resolved the second questionlby presenting his material under such traditional headings as Tort,Contract, Quasi-Contract, Expropriation, Remedies and Procedure.Thus there is emphasis upon the functional problem presented rather1. 60 STAT. 842 (1946).2. 10 & 11 GEo. 5, c. 44 (1947).3. In the realm of municipal immunity, see the vigorous dissent of Terrell,J., in City of Miami v. Bethel, 65 So.2d 34, 38 (Fla. 1953).305VANDERBILT LAW REVIEWthan upon the competing theories involved in supporting or denyingliability. Such an approach will make his study more acceptable tothe "practical" scholar or lawyer, but may well leave the scholar,who sees in the problem a basic conflict of theories, with a feelingthat the method left something to be desired.The greater portion of the study is devoted to a careful and de-tailed consideration of governmental liability in tort and contractin Great Britain and the United States. This is done by means of ananalysis of the Crown Proceedings Act in Great Britain and of thFederal Tort Claims Act and Tucker Act in the United States withuseful references to the system in France. These topics will likelyhold interest for the American practitioner. The student of com-parative institutions will be interested in Professor Street's evaluationof the French system of administrative courts as compared with theAnglo-American primary use of the ordinary civil courts for actionsagainst the state, and in his conclusion that there seems to be noneed for separate administrative courts in the Anglo-American sys-tem. To this reviewer, the most challenging part of the book is thatin which the author deals with procedural and substantive limita-tions on the liability of the state. Here such important questions arebroached as that of whether the Executive or the Judiciary is morecompetent to assess the "public interest"4 (p.177), for example, incompelling the production of official documents or in permittingaction to be brought on matters of "policy." But it is precisely in thisarea that this reviewer finds that the author deals too sparingly withthe competing theories which underlie the dilemma of immunity oraccountability. The author admits that herein is raised "one of thefundamental problems of administrative law."'  (p.178). Certainlyin these days of widespread use by government of the investigativepower, this is one of the areas in which the individual may need pro-tection from the state. Hence, it is disappointing to find so littleattention paid to this question.Professor Street is presently Professor of Law in the Universityof Nottingham. Much of the research on this book was done in theUnited States during his tenure of a Commonwealth Fund Fellowshipin 1947-8. The list of works cited and of decisions and statutes re-viewed testify to the breadth and depth of his research. By way ofminor comment, one wonders why the author omitted reference to'the case of United States v. Humphrey's Executor4 at page 117 inconnection with his discussion of Myers v. United States.The book stands as a fine beginning in this little developed field4. 295 U.S. 602, 55 Sup. Ct. 869, 79 L. Ed. 1611 (1935).5. 272 U.S. 52, 47 Sup. Ct. 21, 71 L. Ed. 160 (1926).[ VOL. 7BOOK REVIEWSof comparative study. It should interest the political scientists aswell as the jurist. It points up the fact that "much reform is calledfor before the individual has adequate protection against the admin-istration" (p.186) although the author does not go the full way insuggesting specific reforms. It puts into context for Americans thecurious fact that the colonies, having separated themselves from GreatBritain by a revolution grounded upon a list of expressed grievancesagainst the state, yet received with the common law of England adoctrine of sovereign immunity which had been developed in feu-dalism and monarchy.F_ mA_ F. STONE*RomAN LAW AND CovnvoN LAw: A Co1AiusoN IN OuTLNEn. By W. W.Buckland and Arnold D. McNair. Second Edition, Revised byF. H. Lawson. New York: Cambridge University Press, 1952.Pp. xii, 439. $7.00.The first edition of this work was published in 1936. The presentsecond edition was done after the great Buckland's death in 1946 byhis co-author, Professor McNair, and by Professor Lawson who isknown to American scholars for his comparative-legal masterpieceon negligence.1 Roman law has not changed essentially since 1936and so it is not amazing that this edition does not differ materiallyfrom its predecessor. It is too bad though that the authors could notavail themselves of Pharr's Theodosian Code2 and of Jolowicz's re-cent second edition;3 but even if they had, their work would probablynot have undergone any telling alteration inasmuch as it deals withRoman law chiefly in a dogmatic fashion, describing the law ratherthan its history or philosophy. This is not to say that the learnedauthors have failed to give a historic sketch of many institutions,from the law of the Twelve Tables to Justinian. Yet the emphasisis on Justinian's compilation-on the Roman law as it has been knownin the late and post-medieval world.As such it is eminently useful. It acquaints the common-law readerwith the basic principles of the developed Roman law-no more, noless. The book is not intended to be read by non-lawyers who want*Professor of Law and Director of Institute of Comparative Law, TulaneUniversity.1. LAWSON, NEGLIGENCE IN THE CIvIL LAw (1950).2. PnARa, THE THEODosrAN CODE (1952). See Parker, Book Review, 6 VAND.L. REv. 965 (1953).3. JOLOWICZ, HISTORUCAL INTRODUCTION TO THE STUDY OF ROMAN L&w (1952).19541VANDERBILT LAW REVIEWto study Roman law; some basic knowldege of our law is indis-pensible to an understanding of the authors' comparison with the lawof Rome. The purpose of the book-to be useful to common lawyers-has inevitably induced the authors to adhere to a common-law ar-rangement and approach, although this system has not been carriedthrough. Thus the discussion of agency, adequate in itself as far as itgoes, is limited by the omission of a treatment of the mandatum, whichcomes close to the civil law of agency. In our law, one who acts for an-other is his agent whether he is authorized to represent the principal(disclosed principal) or not (undisclosed principal); every mandatee isalso an agent, at least if the third party finds and "discloses" theunderlying relation. Under the Roman mandatum there was noagency in the sense of representation; and under modem civil lawthe situation is the same if the principal cares to stay "undisclosed."But the Romans did have a rudimentary form of agency which theauthors discuss4 under "Agency," which chapter, however, excludesthe mandate, which is discussed elsewhere in the chapter on con-sensual contracts. Now, a common lawyer would expect everythingto be discussed together in the Agency chapter, whereas a civilianwould treat, as his Roman counterpart did, the mandate amongst theconsensual contracts and agency, such as the Roman did know it, inthe chapter on quasi-contracts as which this institution was conceived.I realize of course that the goal of satisfying the systematic idiosyn-crasies of both legal worlds in one book is something that can be onlyassymptotically approximated.The work is basic in its character although it branches out hereand there to delve into one of the many problems that have beset theever argumentative world of civil and Roman lawyers. One of thesetopics-on contributory negligence-is particularly well worth read-ing. One should hope that it destroys the persistently reiteratedmyth that the Romans knew anything about comparative negligence,which as the revisor has made clear in his own erudite study,5 hasits origin in the natural-law application of the Austrian Civil Code of1811 and not in any provision of the Roman law.The co-author's Excursus on tort Duty of Care is as confusing asany discussion on this subject ever has been. It strikes me as singu-larly unnecessary in a book whose main author, the late Buckland,has so lucidly disposed of this matter.6 The Excursus of course ac-4. Le., the institor (business manager), see DIGEST 14. 3. 5. 1. Likewise wasthe shipowner (exercitor) liable for acts of his magister navis (captain).DIGEST 14. 1. 1. 9. The authors, however, mention only the actio institoriabut not the actio exercitoria.5. Supra, note 1.6. BucKLAND, SomI REFLECTIONS ON JURISPRUDENCE 110-15 (1945).[ VOL. 7BOOK REVIEWSknowledges Buckland's aversion against the duty of care concept, butMcNair's attempt at refutation is an unconvincing attempt to call aspade a shovel.I would also disagree with the authors' hazy treatment of symbolicdelivery. The classical Roman lawyers had invented the traditiobrevi manu (delivery by mere declaration, to someone who has thething already, e.g., as a borrower). The Byzantine lawyers aroundJustinian's time added the constitutum possessorium (delivery bymere declaration of him who now holds the thing for someone else,e.g., the owner says that he holds the thing now as a borrower). Thelatter was probably not in general use before the Glossators althoughit was adopted in the codes of both the Visigoths7 and Burgundians.8Be this as it may, the symbolic tradition, such as delivery by sur-rendering the key or title document to a house, was unknown toRoman law except for gifts, where, strange as this may seem to us,the legal formalities were relaxed. From the authors' discussion atpages 112-14 one might get the impression that symbolic deliverywas known not only to the civil but also to Roman law. If this isthe authors' opinion then it is in contrast to the generally prevailingtheory and would therefore have needed further explanation andelaborationHowever, it would do no good to give the impression that I were setto detract from the great scholarly value of the book. It accomplishes,more than any other work, to make Roman law popular with Anglo-American lawyers.REGINALD PARKER*7. BEvwum ALnAci 8. 5. 2.8. LEx ROmANA BuRGUNDIONUm 22. 5.9. The article by Riccobono which the authors cite does not at all supportthe idea that the Romans recognized the traditio ficta.*Professor of Law, Willamette University.

Book Reviews

https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=4438&context=vlr

Book Reviews

Abstract

Similar works

Full text

Available Versions

Vanderbilt University Law School: Scholarship@Vanderbilt Law