Rasnic, Carol D.

English

Valparaiso University

Valparaiso University Law Review Volume 17 Number 3 Winter 1983 pp.607-610 Winter 1983 Charles Rembar, The Law of the Land: The Evolution of Our Legal System Carol D. Rasnic Follow this and additional works at: https://scholar.valpo.edu/vulr  Part of the Law Commons Recommended Citation Carol D. Rasnic, Charles Rembar, The Law of the Land: The Evolution of Our Legal System, 17 Val. U. L. Rev. 607 (1983). Available at: https://scholar.valpo.edu/vulr/vol17/iss3/9 This Book Review is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu. The Law of the Land: The Evolution of Our Legal Systemby Charles Rembar, New York, N.Y.: Simon and Schuster, 1980.Pp. 413.The task of rendering the law a subject reasonably comprehen-sible is indeed an awesome one. Charles Rembar has produced acreditable such effort in The Law of the Land: The Evolution of ourLegal System. Rembar, a trial lawyer of no menial significance -amonghis more notable defenses have been the "Lady Chatterley's Lover,"1"Tropic of Cancer"' and "Fanny Hill"' obscenity cases, all in whichthe defense prevailed-has tempered a lucid and fluid writing stylewith a scholarly knowledge of the law and its origins and has achieveda result which is both informative and, at times, humorous. The formercharacteristic makes the book a product worthy of the investmentin time and money, and the latter maintains the reader's interest sothat such will not have been wasted.The book is highly readable and entertaining, in particular withregard to the author's almost uncanny grasp of the niceties of theearly English law. There are fourteen easily segmented chapters deal-ing with such areas as evidence, equity, the "old New Pleading" (anenlightening progression of the simplification in pleading require-ments), the rights of the criminally accused, and the inception of trialby jury. The common law versus statutory law, criminal versus civil,procedure versus substantive distinctions are explained early in thebook in a manner which should appeal to the lay reader as well asrefresh the lawyer. The primitive modes of dealing with transgressorsof the law, both civil and criminal-hue and cry, feud, and ordeal andcompurgation, all methods conducted by the populace who assumedresponsibility of assuring that "justice" was done-are discussed atlength with examples interspersed so that each is clarified. Rembardistinguishes among the early writs of debt, detinue, contract andtrespass (the "preferred" writ) and expounds upon our English develop-ment: from the thirteenth century addition of statutory law to theexisting judicial system upon the establishment of Parliament and itsflourishing under Edward I, to the eighteenth century's introductionof the default judgment, up to the abolishment by the 1848 New Yorkstate legislature and the later Federal Rules of Civil Procedure of1. Grove Press, Inc. et al. v. Christenberry, 276 F.2d 433 (2d Cir. 1960).2. Atty. Gen'l v. The Book Named "Tropic of Cancer", 184 N.E.2d 328 (Mass.1962).3. Memoirs v. Massachusetts, 383 U.S. 413 (1966).Rasnic: Charles Rembar, The Law of the Land: The Evolution of Our Legal SProduced by The Berkeley Electronic Press, 1983608 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 17the more restrictive forms of pleading. He elucidates many fundamen-tal differences in American and British law, e.g., the inability of anEnglish court to declare an act of Parliament unconstitutional and theabsence of a written constitution in Great Britain.An elaborate discussion of the various rules of evidence and thereasons for each is perhaps the high point of the book. The chapteron the development of the jury and a critique of the present daysystem is excellent. Occasionally, the author's factual and historicaldetail is complemented by his personal views, which he offers in hisanalysis of a jury's effectiveness: Rembar recommends the retentionof the jury system only in criminal litigation. And he concludes theAmerican legal system to be uniquely characterized by two distinc-tive benefits to the criminal defendant: the presumption of innocenceand the requirement that guilt be proven beyond a reasonable doubt.Two areas of the author's personal perceptions are particularlyapparent: (1) his abhorrence of the United States Supreme Court'sexpansion of the First Amendment guarantee of freedom of speechto areas beyond what he feels the drafters of the Bill of Rightsenvisioned.4 This view comes as somewhat of a surprise when ex-pressed by one who had successfully argued the cause of allegedlyobscene works on the ground that the writers and producers wereexercising this constitutional right.5 One puzzling feature was Rem-bar's mention of the Supreme Court's 1957 Roth6 decision with whichhis subsequent defense of "Lady Chatterley" differed, without men-tioning the stricter test later adopted by the Court The Roth Courtcondemned any work whose dominant appeal was to the reader's orviewer's "prurient interest,"9 but provided that its salvation couldnonetheless be achieved by a showing of any "social redeeming4. See, e.g., C. REMBAR, LAW OF THE LAND, 265, 315. For example, the authordisagrees with decisions such as the one which held that advertising by lawyers isspeech protected by the First Amendment (see REMBAR, at 265). And he stronglyberates a 1976 Supreme Court decision holding unconstitutional on First Amendmentgrounds portions of a federal statute which limited the use of money in federal elec-tions. Rembar's analysis of this latter holding is that the Court thereby effectivelyguarantees a "rich man . . . a greater voice in government than a poor man," whichhe feels may be "fact, but it is not law." REMBAR at 394.5. Rembar apparently advocates the extension of the First Amendment pro-tection only to those areas expressly stated-speech, press, and religion-but, whereapplicable, regards this protection as complete and unfettered.6. Roth v. United States, 354 U.S. 476 (1957).7. Rembar deems Roth a "thumping defeat for libertarians." REMBAR at 327.8. See Miller v. California, 413 U.S. 15 (1973).9. Roth, 354 U.S. at 487.Valparaiso University Law Review, Vol. 17, No. 3 [1983], Art. 9https://scholar.valpo.edu/vulr/vol17/iss3/9BOOK REVIEWSvalue,""0 no matter how trivial. Rembar obviously felt this restrictionon the freedom of speech to have been excessive," but he does notseize upon the opportunity to comment upon the stricter standardadopted by the Court in the 1973 Miller decision. 2 Although "LadyChatterley" was in the interim between those two decisions when Rothwas indeed the prevailing authority, the reader wonders why Rembardoes not chastize the Miller test that a work is obscene unless thedegree of "literary, artistic, political or scientific" value in a challengedwork is "serious.""' At any rate, his distaste for the expansion of areasprotected by the First Amendment and his impregnable position ofits strength in areas where applicable appear anomalous. And thereader is left to ponder why he did not comment upon the relativelyillimitable restrictive effect of Miller, which should have served tocompound his distress over the Roth restriction. Rembar's defense in"Lady Chatterley" would unquestionably have failed under the morestringent Miller test thereafter adopted. (2) Rembar's more-than-occasional indication of his negative subjective opinion of former Presi-dent Nixon is expressed, albeit with levity. He calls the Nixon adminis-tration "anti-intellectual"" and disapprovingly refers to the disregardby Nixon and his predecessors of the exclusive right of Congress todeclare war, designating them, respectively, "King John and KingRichard and King Lyndon.""5 He further uses Nixon's predating ofhis gift of papers to exemplify a form of legal fiction used in afraudulent manner, as contrasted with the use of such fiction pur-posefully (an example of the latter was the legal presumption of theking's omnipresence during the Middle Ages, in order to allow alitigant to proceed with criminal prosecution in the king's absence,since the presence of the royal personage was traditionally required).10. "All ideas having even the slightest redeeming social importance ... havethe full protection of the guarantees of the First Amendment. . . . But implicit inthe history of the First Amendment is the rejection of obscenity as utterly withoutredeeming social importance." Id. at 484-5.11. "The Roth case did not, could not, mean what it seemed to mean." REM-BAR at 328. Rembar argued in "Lady Chatterley," supra note 1, that the "First Amend-ment protected any work that had discernible social value, no matter how lustful orprurient, no matter how offensive, no matter how violative of community standards."REMBAR at 328.12. Miller v. California, 413 U.S. 15 (1973). This test later adopted by theSupreme Court renders the Roth test pale in comparison. See infra note 13.13. Id. at 25. The Court in Miller specifically rejected the "utterly withoutredeeming social value" test which Rembar had successfully used in the "Fanny Hill"case, Memoirs v. Massachusetts, 383 U.S. 413, 419 (1966), and substituted instead therequirement that the social value be significant, or "serious."14. REMBAR at 199.15. Id. at 290.19831 Rasnic: Charles Rembar, The Law of the Land: The Evolution of Our Legal SProduced by The Berkeley Electronic Press, 1983610 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 17And Rembar's premise that the law is generally recognized andrespected is qualified by his statement that there are some excep-tional officials who transgress, such transgressions being illustratedby Nixon's "simple outlawry.""6At times, the historical data does become almost a dissertation,and the reader may tend to feel he has reverted to a college Europeanhistory or law school legal history course. Mr. Rembar's research inthe piecemeal establishment of our nation's judicial system has surelybeen exhaustive, and certainly no lawyer can read his book withouthaving learned much about his profession's development. As a researchvehicle, the chapter on evidence is perhaps the most fruitful and thechapter on the complexity of pleading which addresses the tendencyof many lawyers to make work in order to maximize fees, as wellas the author's feeling that the bar is publicly obligated to providecitizens with out-of-court legal advice free of charge, and his opinionthat it is necessary for lawyers to act professionally beyond reproach("slightly better [than most professional groups] is not enough"1 ) isone every lawyer would do well to digest. He further presents a plausi-ble, but arguable, proposition that the government should bear theexpense of paying lawyers who provide actual litigation services forindigent persons. The book is replete with such controversial posi-tions that would provide inventive topics for debate.Perhaps the theme of the book is best set forth in the finalsentence. "Its [the law's] task is to draw generally sensible lines withinthe infinite shades of circumstance that constitute our world."18Rembar, who is quite evidently fascinated with the subject matterof his profession, has produced a laudable work that will enlightenmany a layman and inspire many a practitioner as to the profoundityand virtues of those "sensible lines."Carol D. Rasnic*16. Id. at 407.17. Id. at 266.18. Id. at 213.* Assistant Professor of Business Law and Labor Law, Virginia Com-monwealth University; B.A., University of Kentucky, 1963; LL.B., Vanderbilt Univer-sity, 1965; Admitted to Tennessee (1965) and Virginia (1976) Bars.Valparaiso University Law Review, Vol. 17, No. 3 [1983], Art. 9https://scholar.valpo.edu/vulr/vol17/iss3/9

Charles Rembar, The Law of the Land: The Evolution of Our Legal System

ValpoScholar

Valparaiso University Law Review 
Volume 17 
Number 3 Winter 1983 pp.607-610 
Winter 1983 
Charles Rembar, The Law of the Land: The Evolution of Our Legal 
System 
Carol D. Rasnic 
Follow this and additional works at: https://scholar.valpo.edu/vulr 
 Part of the Law Commons 
Recommended Citation 
Carol D. Rasnic, Charles Rembar, The Law of the Land: The Evolution of Our Legal System, 17 Val. U. L. 
Rev. 607 (1983). 
Available at: https://scholar.valpo.edu/vulr/vol17/iss3/9 
This Book Review is brought to you for free and open 
access by the Valparaiso University Law School at 
ValpoScholar. It has been accepted for inclusion in 
Valparaiso University Law Review by an authorized 
administrator of ValpoScholar. For more information, 
please contact a ValpoScholar staff member at 
scholar@valpo.edu. 
The Law of the Land: The Evolution of Our Legal System
by Charles Rembar, New York, N.Y.: Simon and Schuster, 1980.
Pp. 413.
The task of rendering the law a subject reasonably comprehen-
sible is indeed an awesome one. Charles Rembar has produced a
creditable such effort in The Law of the Land: The Evolution of our
Legal System. Rembar, a trial lawyer of no menial significance -among
his more notable defenses have been the "Lady Chatterley's Lover,"1
"Tropic of Cancer"' and "Fanny Hill"' obscenity cases, all in which
the defense prevailed-has tempered a lucid and fluid writing style
with a scholarly knowledge of the law and its origins and has achieved
a result which is both informative and, at times, humorous. The former
characteristic makes the book a product worthy of the investment
in time and money, and the latter maintains the reader's interest so
that such will not have been wasted.
The book is highly readable and entertaining, in particular with
regard to the author's almost uncanny grasp of the niceties of the
early English law. There are fourteen easily segmented chapters deal-
ing with such areas as evidence, equity, the "old New Pleading" (an
enlightening progression of the simplification in pleading require-
ments), the rights of the criminally accused, and the inception of trial
by jury. The common law versus statutory law, criminal versus civil,
procedure versus substantive distinctions are explained early in the
book in a manner which should appeal to the lay reader as well as
refresh the lawyer. The primitive modes of dealing with transgressors
of the law, both civil and criminal-hue and cry, feud, and ordeal and
compurgation, all methods conducted by the populace who assumed
responsibility of assuring that "justice" was done-are discussed at
length with examples interspersed so that each is clarified. Rembar
distinguishes among the early writs of debt, detinue, contract and
trespass (the "preferred" writ) and expounds upon our English develop-
ment: from the thirteenth century addition of statutory law to the
existing judicial system upon the establishment of Parliament and its
flourishing under Edward I, to the eighteenth century's introduction
of the default judgment, up to the abolishment by the 1848 New York
state legislature and the later Federal Rules of Civil Procedure of
1. Grove Press, Inc. et al. v. Christenberry, 276 F.2d 433 (2d Cir. 1960).
2. Atty. Gen'l v. The Book Named "Tropic of Cancer", 184 N.E.2d 328 (Mass.
1962).
3. Memoirs v. Massachusetts, 383 U.S. 413 (1966).
Rasnic: Charles Rembar, The Law of the Land: The Evolution of Our Legal S
Produced by The Berkeley Electronic Press, 1983
608 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 17
the more restrictive forms of pleading. He elucidates many fundamen-
tal differences in American and British law, e.g., the inability of an
English court to declare an act of Parliament unconstitutional and the
absence of a written constitution in Great Britain.
An elaborate discussion of the various rules of evidence and the
reasons for each is perhaps the high point of the book. The chapter
on the development of the jury and a critique of the present day
system is excellent. Occasionally, the author's factual and historical
detail is complemented by his personal views, which he offers in his
analysis of a jury's effectiveness: Rembar recommends the retention
of the jury system only in criminal litigation. And he concludes the
American legal system to be uniquely characterized by two distinc-
tive benefits to the criminal defendant: the presumption of innocence
and the requirement that guilt be proven beyond a reasonable doubt.
Two areas of the author's personal perceptions are particularly
apparent: (1) his abhorrence of the United States Supreme Court's
expansion of the First Amendment guarantee of freedom of speech
to areas beyond what he feels the drafters of the Bill of Rights
envisioned.4 This view comes as somewhat of a surprise when ex-
pressed by one who had successfully argued the cause of allegedly
obscene works on the ground that the writers and producers were
exercising this constitutional right.5 One puzzling feature was Rem-
bar's mention of the Supreme Court's 1957 Roth6 decision with which
his subsequent defense of "Lady Chatterley" differed, without men-
tioning the stricter test later adopted by the Court The Roth Court
condemned any work whose dominant appeal was to the reader's or
viewer's "prurient interest,"9 but provided that its salvation could
nonetheless be achieved by a showing of any "social redeeming
4. See, e.g., C. REMBAR, LAW OF THE LAND, 265, 315. For example, the author
disagrees with decisions such as the one which held that advertising by lawyers is
speech protected by the First Amendment (see REMBAR, at 265). And he strongly
berates a 1976 Supreme Court decision holding unconstitutional on First Amendment
grounds portions of a federal statute which limited the use of money in federal elec-
tions. Rembar's analysis of this latter holding is that the Court thereby effectively
guarantees a "rich man . . . a greater voice in government than a poor man," which
he feels may be "fact, but it is not law." REMBAR at 394.
5. Rembar apparently advocates the extension of the First Amendment pro-
tection only to those areas expressly stated-speech, press, and religion-but, where
applicable, regards this protection as complete and unfettered.
6. Roth v. United States, 354 U.S. 476 (1957).
7. Rembar deems Roth a "thumping defeat for libertarians." REMBAR at 327.
8. See Miller v. California, 413 U.S. 15 (1973).
9. Roth, 354 U.S. at 487.
Valparaiso University Law Review, Vol. 17, No. 3 [1983], Art. 9
https://scholar.valpo.edu/vulr/vol17/iss3/9
BOOK REVIEWS
value,""0 no matter how trivial. Rembar obviously felt this restriction
on the freedom of speech to have been excessive," but he does not
seize upon the opportunity to comment upon the stricter standard
adopted by the Court in the 1973 Miller decision. 2 Although "Lady
Chatterley" was in the interim between those two decisions when Roth
was indeed the prevailing authority, the reader wonders why Rembar
does not chastize the Miller test that a work is obscene unless the
degree of "literary, artistic, political or scientific" value in a challenged
work is "serious.""' At any rate, his distaste for the expansion of areas
protected by the First Amendment and his impregnable position of
its strength in areas where applicable appear anomalous. And the
reader is left to ponder why he did not comment upon the relatively
illimitable restrictive effect of Miller, which should have served to
compound his distress over the Roth restriction. Rembar's defense in
"Lady Chatterley" would unquestionably have failed under the more
stringent Miller test thereafter adopted. (2) Rembar's more-than-
occasional indication of his negative subjective opinion of former Presi-
dent Nixon is expressed, albeit with levity. He calls the Nixon adminis-
tration "anti-intellectual"" and disapprovingly refers to the disregard
by Nixon and his predecessors of the exclusive right of Congress to
declare war, designating them, respectively, "King John and King
Richard and King Lyndon.""5 He further uses Nixon's predating of
his gift of papers to exemplify a form of legal fiction used in a
fraudulent manner, as contrasted with the use of such fiction pur-
posefully (an example of the latter was the legal presumption of the
king's omnipresence during the Middle Ages, in order to allow a
litigant to proceed with criminal prosecution in the king's absence,
since the presence of the royal personage was traditionally required).
10. "All ideas having even the slightest redeeming social importance ... have
the full protection of the guarantees of the First Amendment. . . . But implicit in
the history of the First Amendment is the rejection of obscenity as utterly without
redeeming social importance." Id. at 484-5.
11. "The Roth case did not, could not, mean what it seemed to mean." REM-
BAR at 328. Rembar argued in "Lady Chatterley," supra note 1, that the "First Amend-
ment protected any work that had discernible social value, no matter how lustful or
prurient, no matter how offensive, no matter how violative of community standards."
REMBAR at 328.
12. Miller v. California, 413 U.S. 15 (1973). This test later adopted by the
Supreme Court renders the Roth test pale in comparison. See infra note 13.
13. Id. at 25. The Court in Miller specifically rejected the "utterly without
redeeming social value" test which Rembar had successfully used in the "Fanny Hill"
case, Memoirs v. Massachusetts, 383 U.S. 413, 419 (1966), and substituted instead the
requirement that the social value be significant, or "serious."
14. REMBAR at 199.
15. Id. at 290.
19831 Rasnic: Charles Rembar, The Law of the Land: The Evolution of Our Legal S
Produced by The Berkeley Electronic Press, 1983
610 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 17
And Rembar's premise that the law is generally recognized and
respected is qualified by his statement that there are some excep-
tional officials who transgress, such transgressions being illustrated
by Nixon's "simple outlawry.""6
At times, the historical data does become almost a dissertation,
and the reader may tend to feel he has reverted to a college European
history or law school legal history course. Mr. Rembar's research in
the piecemeal establishment of our nation's judicial system has surely
been exhaustive, and certainly no lawyer can read his book without
having learned much about his profession's development. As a research
vehicle, the chapter on evidence is perhaps the most fruitful and the
chapter on the complexity of pleading which addresses the tendency
of many lawyers to make work in order to maximize fees, as well
as the author's feeling that the bar is publicly obligated to provide
citizens with out-of-court legal advice free of charge, and his opinion
that it is necessary for lawyers to act professionally beyond reproach
("slightly better [than most professional groups] is not enough"1 ) is
one every lawyer would do well to digest. He further presents a plausi-
ble, but arguable, proposition that the government should bear the
expense of paying lawyers who provide actual litigation services for
indigent persons. The book is replete with such controversial posi-
tions that would provide inventive topics for debate.
Perhaps the theme of the book is best set forth in the final
sentence. "Its [the law's] task is to draw generally sensible lines within
the infinite shades of circumstance that constitute our world."18
Rembar, who is quite evidently fascinated with the subject matter
of his profession, has produced a laudable work that will enlighten
many a layman and inspire many a practitioner as to the profoundity
and virtues of those "sensible lines."
Carol D. Rasnic*
16. Id. at 407.
17. Id. at 266.
18. Id. at 213.
* Assistant Professor of Business Law and Labor Law, Virginia Com-
monwealth University; B.A., University of Kentucky, 1963; LL.B., Vanderbilt Univer-
sity, 1965; Admitted to Tennessee (1965) and Virginia (1976) Bars.
Valparaiso University Law Review, Vol. 17, No. 3 [1983], Art. 9
https://scholar.valpo.edu/vulr/vol17/iss3/9


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Charles Rembar, The Law of the Land: The Evolution of Our Legal System

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