Hiller, Jack A.

English

Valparaiso University

Valparaiso University Law Review Volume 14 Number 1 Fall 1979 pp.171-177 Fall 1979 Robert Bocking Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976 Jack A. Hiller Follow this and additional works at: https://scholar.valpo.edu/vulr  Part of the Law Commons Recommended Citation Jack A. Hiller, Robert Bocking Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976, 14 Val. U. L. Rev. 171 (1979). Available at: https://scholar.valpo.edu/vulr/vol14/iss1/8 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. BOOK REVIEWLaw and Politics: The House of Lords as a Judicial Body, 1800-1976.By Robert Bocking Stevens. Chapel Hill: University of NorthCarolina Press, 1978. Pp. xviii, 701, $30.Robert Stevens is unusually well qualified to write a history ofthe House of Lords for an Anglo-American audience. He was born inEngland, educated at Oxford and at Yale and practiced law in Lon-don and in New York before becoming professor of law at Yale andlater provost at Tulane. In 1978 he became president of HaverfordCollege. He has brought to his subject a brilliant mind, a comprehen-sive knowledge of Commonwealth and American law and institu-tions,' an elegant, jargon-free style, and a concern for legal andsocial detail that comes across to any interested reader. This is abook that American lawyers in particular will find especiallyfascinating and will gain more from than will the layman. Thelawyer will be attracted partly by the author's frequent referencesto American legal institutions and concepts.It is a happy circumstance that the first serious book-lengthstudy of the House of Lords as a judicial body' is so wide in scopeand so intensively researched. In the Preface Stevens describes hisresearch:In completing the research for this book I have triedto be exhaustive with respect to both the decisions of theHouse of Lords and the law lords who comprise itsmembership. I have, if not read, at least glanced at all thereported decisions of the House of Lords, and, in theHouse of Lords Record Office, I have sampled theunreported decisions from the 1830s until the present.With few exceptions, I have read all the documents writ-ten by or to any Lord of Appeal in Ordinary, at least in-sofar as these materials are traceable through the BritishMuseum and the National Manuscripts Commission; I have1. See, for example, his erudite history of American legal education: TwoCheers for 1870: The American Law School in LAW IN AMERICAN HISTORY 403 (D.Fleming and B. Bailyn, eds. 1971).2. Anyone interested in the subject should read L. BLUM-COOPER & G.DREWRY, FINAL APPEAL: A STUDY OF THE HOUSE OF LORDS IN ITS JUDICIAL CAPACITY(1972), an excellent book but somewhat less ambitious in scope than Stevens'.Hiller: Robert Bocking Stevens, Law and Politics: The House of Lords as aProduced by The Berkeley Electronic Press, 1979172 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 14also attempted to read all the extralegal writings of thelaw lords, as well as an extended sample of the speechesof the law lords in the House sitting legislatively. In addi-tion, I have talked at length to a number of the presentand recent law lords.3In short, he has read virtually everything relevant-and it shows.The book begins with a description of the House of Lords in1800 as "an equal partner (if not the senior partner) with the Monar-chy and Commons in the governance of England," whose constituen-cy was the aristocracy or oligarchy which then ruled England.' Itslegislative and judicial roles were far less differentiated than theyare today. The appellate process then was seen as an integral partof the overall political sovereignty vested in the Lords. There wasvirtually no recognition of the concept of separation of powers as itis presently understood. While the Lords generally relied on thejudges who had been summoned when a point of English law wasconcerned, any peer, whether law-trained or not, was entitled totake part actively in the judicial work of the House. In 1834 theLords for the last time decided an appeal without any law lords pre-sent.5 But lay peers continued to play a role. Indeed, as late as 1883a lay peer attempted to vote in an appeal, but his vote was ignored.'From this early form he traces the development of the Houseto a modern institution which clearly (perhaps too clearly) differen-tiates its legislative and judicial functions.7 The latter are carriedout by law-trained Lords of Appeal in Ordinary (generally elevatedfrom the Bench) who sit in separate panels of five in order to handlethe pressure of appellate work which in earlier days had grown too3. R. STEVENS, LAW AND POLITICS: THE HOUSE OF LORDS AS A JUDICIAL BODY1800-1976 xii (1978).4. Id. at 4.5. Id. at 29.6. Id. at 54. It is worth noting that the establishment of the House of Lordsas a professional court distinct from its legislative functions and the exclusion of laypeers from voting occurred in 1884 without any legal change being made in the formalstructure of the House. This is an outstanding example of the force of tradition andconvention as a form of social structuring and social control in Britain: while the formremains the same the practice changes. Id. at 33.7. Until the point was reached where its appellate functions became differen-tiated from its other work, the House of Lords (as distinguished from the lower courts)had made relatively little contribution to the common law of England and only alimited one to equity. From then on, with an adequate supply of law lords (previouslylacking), there was a much greater opportunity for it to shape English law. Id. at 30.See also Hiller, the Law-Creative Role of Appellate Courts in the Commonwealth, 27I.C.L.Q. 85 (1978).Valparaiso University Law Review, Vol. 14, No. 1 [1979], Art. 8https://scholar.valpo.edu/vulr/vol14/iss1/8LA W AND POLITICSburdensome for a House with undifferentiated roles and non-professionalized judges. Along the way he also explores in detail theLords' role on the Judicial Committee of the Privy Council,8 theforum of final appeal for Empire and Commonwealth cases, and thevarious attempts to merge the jurisdictions of the two bodies.'A key factor in the development of the House as a judicialbody has been the role of the Lord Chancellor. His office involves acombination of both political and legal functions and hence, in thisovert form, has no direct counterpart in the United States.10 Thiscombination of functions, as it has been applied to the appointmentof Lords of Appeal and the assignment of the "right" law lords toparticular cases, combined with the returning of the House to issues,of public law (with the consequent development of Prime Ministers'interests in the appointments of Lords of Appeal), has in recenttimes had significant influence on the judicial role of the House.Stevens says, "In short, life (has) been discovered in a body that in1955 had shown considerable evidence of terminal irrelevance."'"The significance of the Lords' irrelevance is best shownthrough what is to this reviewer the most fascinating thread woventhrough the book: the analysis of the Lords' philosophical orjurisprudential posture and its impact on the development of publicand private law. The core of the book is this analysis of the role ofthe law lords over especially the last hundred years.For a period beginning around 1800 to about 1955 the ideologyof substantive formalism, born of utilitarianism, dominated thejudicial work of the House. The orthodoxy was that Parliamentmade the laws which judges applied while judges in addition"discovered" the common law or delivered it up like a midwife. The8. R. STEVENS, supra note 3 passim. The contribution that this book makes tothe previously sparse literature on the Privy Council is significant.9. Id. at 28, 31, 43, 50-52, 58-60.10. Id. at 85, 92.11. Id. at 554. That "life," however, has provoked death threats since thewriting of Stevens' book. While elements in the British Labor Party have regularlycalled for abolition of Lords' legislative role, a series of three cases decided by theHouse within a short period of time (Grunwick Processing Laboratories Ltd. v. Ad-visory, Conciliation and Arbitration Service [19781 1 All E.R. 338, 357 [H.L.; Secretaryof State for Education and Science v. Tameside Metropolitan Borough Council, [19771A.C. 1014, 1036 [H.L.]; Gouriet v. Union of Post Office Workers, [19771 3 All E.R. 70)and seen by some to reflect a reactionary bias, moved Michael Foot, then Lord Presi-dent of the Privy Council, Leader of the House of Commons and Deputy Leader of theLabor Party, to call for the abolition of their judicial role as well. An interesting ques-tion is whether the House of Lords can lawfully be abolished. See Mirfield, Can TheHouse of Lords Lawfully be Abolished?, 95 L.Q. REV. 36 (1979).19791Hiller: Robert Bocking Stevens, Law and Politics: The House of Lords as aProduced by The Berkeley Electronic Press, 1979174 VALPARAISO UNIVERSITY LAW REVIEW [Vol.14emphasis on formal logic that underlay substantive formalism led tojudicial automatism and a destructive, narrow, semantic approach tostatutory interpretation-in terms of the American debate, an em-phasis on excessive self-restraint and conservatism rather than onjudicial activism, and the pursuit of an instrumental or creativerole.12 As a result, the Lords have long been hard put to answer thequestion of why the second appeal-that is, the judicial appeal fromthe Court of Appeal to the House of Lords sitting in its judicialcapacity rather than its legislative capacity-should not be abolished.What could they do that had not already been done below? Ananswer to this question is offered by Stevens in a way that makesgood sense to Americans who, as Yale's Abraham Goldstein haspointed out," can find the English legal system intelligible only if itis appreciated that as yet no Realist revolution has occurred inEngland.One of the many other fascinating aspects of this book isStevens' study of personalities and the personal contributions of in-dividual judges to the work of the House and, more recently, thegrowth of English and Scottish law.1" In the process of this analysishe rightly says, "[Lord] Denning is certainly the most interestingand possibly the most important English judge of the twentieth cen-tury."'" Some would say that he should omit the word "possibly" andsubstitute "common law" for the word "English." His study of Denn-ing is particularly absorbing. 612. For an insight into the reviewer's bias toward a creative role for appellatecourts see Hiller, supra note 7, and publications cited in note 1.13. Goldstein, Research into the Administration of Criminal Law: A Reportfrom the United States, 1966 BRIT. J. OF CRIM. 27, cited in R. STEVENS, supra note 3, at490. Perhaps the failure of a Realist revolution may be attributed to the fact that suchan approach has been bypassed by Marxist teaching, which ignores the House of Lordsas irredeemably bourgeois and not worthy of analysis along Realist lines. There are,however, some realists at work. See, among others, the writing of Philip Thomas andWilliam Twining, especially W. TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT(1973).14. On the influence of Scots law see, e.g., A. DENNING, BORROWING FROMSCOTLAND (1963), J. KEITH, THE SPIRIT OF THE LAW OF SCOTLAND (1957); T. SMITH,BRITISH JUSTICE: THE SCOTTISH CONTRIBUTION (1961).15. R. STEVENS, supra note 3, at 488. The subtitle under which this statementfuller look at Lord Denning's creative views and work see A. DENNING, THE DISCIPLINEOF LAW (1979).16. It is of some importance to an understanding of Denning to consider thathe sat in the House of Lords for five years-from 1957 to 1962-but then voluntarilystepped down to the Court of Appeal where he felt he would have more influence inthe shaping of English law. There he has been able to have more influence because (1)cases are heard there before they move up to the House (if further appeal is taken); (2)Valparaiso University Law Review, Vol. 14, No. 1 [1979], Art. 8https://scholar.valpo.edu/vulr/vol14/iss1/8LA W AND POLITICSIt is impossible to convey here the lucidity and relevance ofStevens' treatment of many individual jurists (especially the con-tributions of the Scottish lords)," but one may catch a glimpse of itin the following paragraph where he also gives a hint of his answerto the questions posed above.When the history of the twentieth-century judiciarycomes to be written, Denning's name may well be themost prominent, not so much for what he did, but forwhat he showed was possible. Indeed, all four law lordsdiscussed in this chapter posed fundamental questionsabout the role of the appeal process. Once substantive for-malism was left behind, the questions of what guided thelaw and in which direction could no longer be ignored. ForRadcliffe the guide was a kind of fundamental or naturallaw; for Devlin, a Volksgeist to be derived from basicallydemocratic sources. Reid, more of a craftsman and less ofa philosopher, preferred to apply a concept of commonon the Court of Appeal the Judges generally sit in panels of three-rather than theHouse's five; and (3) as Master of the Rolls, Denning governs the makeup of the panelsand can decide what cases he will sit on. He explains his move as follows:Many a time I have been asked: "Why did you step down from the Houseof Lords?" My answer is: "I was too often in a minority. In the Lords it isno good to dissent". In the Court of Appeal it is some good. On occasion ahead-note there says: "Lord Denning dissenting." Let me recall a fewwhich have pointed to the way ahead and have led to decisions by theLords which might never have taken place except for my dissenting fromprevious precedents; such as Chandler v. Crane, Christmas aboutnegligent statements, Bonsor v. Musicians' Union about trade unions,Conway v. Rimmer about Crown privilege, Padfield's case aboutministerial discretion, and Schorsch GmbH v. Hennin about judgments inforeign currency.A. DENNING, supra note 15, at 287. He goes on to say that, though many times he hasfound himself in dissent, even his dissents (especially in the Court of Appeal), havebeen "worthwhile" because on occasion they have ultimately persuaded other judges(as shown above) or Parliament. Charles Evans Hughes said: "A dissent in a court oflast resort is an appeal to the brooding spirit of the law, the intelligence of a futureday, when a later decision may possibly correct the error in which the dissenting judgebelieves the court to have been betrayed." C. HUGHES, THE SUPREME COURT OF THEUNITED STATES 68 (1936). The same of course applies-and perhaps more so-to theCourt of Appeal. Of this Denning is well aware. In fact, he is counting on it.17. His description of Lord Keith as having had "an innate sense of thecreative element in the appellate process" would seem to apply to most of the Scottishlaw lords. R. STEVENS, supra note 3, at 512. Ironically (or perhaps because Scot'slaw is more creative) the House often mishandles Scottish appeals. See A. DONNER,THE ROLE OF THE LAWYER IN THE EUROPEAN COUNTRIES 31-33 (1963). For an illustrativecase see White & Carter (Councils) Ltd. v. McGregor, [1962] A.C. 413.1979]Hiller: Robert Bocking Stevens, Law and Politics: The House of Lords as aProduced by The Berkeley Electronic Press, 1979176 VALPARAISO UNIVERSITY LA W REVIEW [Vol. 14sense behind the shroud of judicial restraint. Judicialrestraint was not something that came easily to Denning.He saw few political or intellectual reasons why, in theareas where litigation took place, the appeal judges shouldnot be law-givers. These four partly competing conceptsmay well reflect the lines of battle along which discussionof the appellate process could take place in the later 1970sand the 1980s. 18This facing toward the future is where the book leaves us. Heends the book by saying:The next decade will show whether the appeal judges arecapable of providing a rationale that will at a minimummake them an essential element in the British Constitu-tion and, ideally, raise the issue of whether they mightnot appear as junior partners of Parliament in thelawmaking process."9One wonders, for example, what future role the House of Lordsmight play in the event of an enacted Bill of Rights" or the PrivyCouncil might occupy in the event of devolution." This remains to beseen and promises exciting new developments in English law and in-stitutions.Robert Stevens' book is an outstanding piece of legal historicalscholarship. I know of none to equal it in our time, though there area number of fine legal historians writing in England today.' Thescholars are ceasing to be intimidated by the works of Holdsworthand Pollack and Maitland. Anyone interested in English law, thefunction of judges and the role of law in society will find it utterlyfascinating. While, because of its seven hundred pages and many ab-sorbing footnotes and tables, it is not a book that one can read inone sitting, this reviewer resented all distractions that kept himfrom doing so. On the other hand, it is a book that one hates tofinish because then the magic link with a brilliant storyteller isbroken.18. R. STEVENS, supra note 3, at 505.19. Id. at 627.20. A written Bill of Rights for England is one of Lord Justice Scarman'sfavorite ideas. See L. SCARMAN, ENGLISH LAW-THE NEW DIMENSION (1974).21. See Brewster, The Rule of Law and the Voluntary Society, 14 J. Soc'y.PUB. TCHRS. OF L. 286, 289 (1979).22. See, e.g., L. BLuM-COOPER & G. DREWRY, supra note 2; L. RADZINOWICZ,A HISTORY OF ENGLISH CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750 (1948- ) (4Vols. to date); E. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT (1975).Valparaiso University Law Review, Vol. 14, No. 1 [1979], Art. 8https://scholar.valpo.edu/vulr/vol14/iss1/819791 LA W AND POLITICS 177Finally, there is credit due the publisher. A book whose authorattempts to accomplish as much as does Stevens' presents many pro-blems in terms of format, type style, cost of materials, proofreadingof appendices, bibliographies, indices and thousands of detail-filledfootnotes. The University of North Carolina Press has produced aproduct technically and aesthetically worthy of the manuscript.Jack A. Hiller**Professor of Law, Valparaiso University School of Law.Hiller: Robert Bocking Stevens, Law and Politics: The House of Lords as aProduced by The Berkeley Electronic Press, 1979VALPARAISO UNIVERSITYFOUNDED 1859College of Arts and SciencesCollege of Business AdministrationChrist CollegeCollege of EngineeringCollege of NursingSchool of LawGraduate ProgramFor information, write to:Director of AdmissionsValparaiso UniversityValparaiso, Indiana 46383Valparaiso University Law Review, Vol. 14, No. 1 [1979], Art. 8https://scholar.valpo.edu/vulr/vol14/iss1/8

Robert Bocking Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976

ValpoScholar

Valparaiso University Law Review 
Volume 14 
Number 1 Fall 1979 pp.171-177 
Fall 1979 
Robert Bocking Stevens, Law and Politics: The House of Lords as 
a Judicial Body, 1800-1976 
Jack A. Hiller 
Follow this and additional works at: https://scholar.valpo.edu/vulr 
 Part of the Law Commons 
Recommended Citation 
Jack A. Hiller, Robert Bocking Stevens, Law and Politics: The House of Lords as a Judicial Body, 
1800-1976, 14 Val. U. L. Rev. 171 (1979). 
Available at: https://scholar.valpo.edu/vulr/vol14/iss1/8 
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. 
BOOK REVIEW
Law and Politics: The House of Lords as a Judicial Body, 1800-1976.
By Robert Bocking Stevens. Chapel Hill: University of North
Carolina Press, 1978. Pp. xviii, 701, $30.
Robert Stevens is unusually well qualified to write a history of
the House of Lords for an Anglo-American audience. He was born in
England, educated at Oxford and at Yale and practiced law in Lon-
don and in New York before becoming professor of law at Yale and
later provost at Tulane. In 1978 he became president of Haverford
College. He has brought to his subject a brilliant mind, a comprehen-
sive knowledge of Commonwealth and American law and institu-
tions,' an elegant, jargon-free style, and a concern for legal and
social detail that comes across to any interested reader. This is a
book that American lawyers in particular will find especially
fascinating and will gain more from than will the layman. The
lawyer will be attracted partly by the author's frequent references
to American legal institutions and concepts.
It is a happy circumstance that the first serious book-length
study of the House of Lords as a judicial body' is so wide in scope
and so intensively researched. In the Preface Stevens describes his
research:
In completing the research for this book I have tried
to be exhaustive with respect to both the decisions of the
House of Lords and the law lords who comprise its
membership. I have, if not read, at least glanced at all the
reported decisions of the House of Lords, and, in the
House of Lords Record Office, I have sampled the
unreported decisions from the 1830s until the present.
With few exceptions, I have read all the documents writ-
ten by or to any Lord of Appeal in Ordinary, at least in-
sofar as these materials are traceable through the British
Museum and the National Manuscripts Commission; I have
1. See, for example, his erudite history of American legal education: Two
Cheers for 1870: The American Law School in LAW IN AMERICAN HISTORY 403 (D.
Fleming and B. Bailyn, eds. 1971).
2. Anyone interested in the subject should read L. BLUM-COOPER & G.
DREWRY, FINAL APPEAL: A STUDY OF THE HOUSE OF LORDS IN ITS JUDICIAL CAPACITY
(1972), an excellent book but somewhat less ambitious in scope than Stevens'.
Hiller: Robert Bocking Stevens, Law and Politics: The House of Lords as a
Produced by The Berkeley Electronic Press, 1979
172 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 14
also attempted to read all the extralegal writings of the
law lords, as well as an extended sample of the speeches
of the law lords in the House sitting legislatively. In addi-
tion, I have talked at length to a number of the present
and recent law lords.
3
In short, he has read virtually everything relevant-and it shows.
The book begins with a description of the House of Lords in
1800 as "an equal partner (if not the senior partner) with the Monar-
chy and Commons in the governance of England," whose constituen-
cy was the aristocracy or oligarchy which then ruled England.' Its
legislative and judicial roles were far less differentiated than they
are today. The appellate process then was seen as an integral part
of the overall political sovereignty vested in the Lords. There was
virtually no recognition of the concept of separation of powers as it
is presently understood. While the Lords generally relied on the
judges who had been summoned when a point of English law was
concerned, any peer, whether law-trained or not, was entitled to
take part actively in the judicial work of the House. In 1834 the
Lords for the last time decided an appeal without any law lords pre-
sent.5 But lay peers continued to play a role. Indeed, as late as 1883
a lay peer attempted to vote in an appeal, but his vote was ignored.'
From this early form he traces the development of the House
to a modern institution which clearly (perhaps too clearly) differen-
tiates its legislative and judicial functions.7 The latter are carried
out by law-trained Lords of Appeal in Ordinary (generally elevated
from the Bench) who sit in separate panels of five in order to handle
the pressure of appellate work which in earlier days had grown too
3. R. STEVENS, LAW AND POLITICS: THE HOUSE OF LORDS AS A JUDICIAL BODY
1800-1976 xii (1978).
4. Id. at 4.
5. Id. at 29.
6. Id. at 54. It is worth noting that the establishment of the House of Lords
as a professional court distinct from its legislative functions and the exclusion of lay
peers from voting occurred in 1884 without any legal change being made in the formal
structure of the House. This is an outstanding example of the force of tradition and
convention as a form of social structuring and social control in Britain: while the form
remains the same the practice changes. Id. at 33.
7. Until the point was reached where its appellate functions became differen-
tiated from its other work, the House of Lords (as distinguished from the lower courts)
had made relatively little contribution to the common law of England and only a
limited one to equity. From then on, with an adequate supply of law lords (previously
lacking), there was a much greater opportunity for it to shape English law. Id. at 30.
See also Hiller, the Law-Creative Role of Appellate Courts in the Commonwealth, 27
I.C.L.Q. 85 (1978).
Valparaiso University Law Review, Vol. 14, No. 1 [1979], Art. 8
https://scholar.valpo.edu/vulr/vol14/iss1/8
LA W AND POLITICS
burdensome for a House with undifferentiated roles and non-
professionalized judges. Along the way he also explores in detail the
Lords' role on the Judicial Committee of the Privy Council,8 the
forum of final appeal for Empire and Commonwealth cases, and the
various attempts to merge the jurisdictions of the two bodies.'
A key factor in the development of the House as a judicial
body has been the role of the Lord Chancellor. His office involves a
combination of both political and legal functions and hence, in this
overt form, has no direct counterpart in the United States.10 This
combination of functions, as it has been applied to the appointment
of Lords of Appeal and the assignment of the "right" law lords to
particular cases, combined with the returning of the House to issues,
of public law (with the consequent development of Prime Ministers'
interests in the appointments of Lords of Appeal), has in recent
times had significant influence on the judicial role of the House.
Stevens says, "In short, life (has) been discovered in a body that in
1955 had shown considerable evidence of terminal irrelevance."'"
The significance of the Lords' irrelevance is best shown
through what is to this reviewer the most fascinating thread woven
through the book: the analysis of the Lords' philosophical or
jurisprudential posture and its impact on the development of public
and private law. The core of the book is this analysis of the role of
the law lords over especially the last hundred years.
For a period beginning around 1800 to about 1955 the ideology
of substantive formalism, born of utilitarianism, dominated the
judicial work of the House. The orthodoxy was that Parliament
made the laws which judges applied while judges in addition
"discovered" the common law or delivered it up like a midwife. The
8. R. STEVENS, supra note 3 passim. The contribution that this book makes to
the previously sparse literature on the Privy Council is significant.
9. Id. at 28, 31, 43, 50-52, 58-60.
10. Id. at 85, 92.
11. Id. at 554. That "life," however, has provoked death threats since the
writing of Stevens' book. While elements in the British Labor Party have regularly
called for abolition of Lords' legislative role, a series of three cases decided by the
House within a short period of time (Grunwick Processing Laboratories Ltd. v. Ad-
visory, Conciliation and Arbitration Service [19781 1 All E.R. 338, 357 [H.L.; Secretary
of State for Education and Science v. Tameside Metropolitan Borough Council, [19771
A.C. 1014, 1036 [H.L.]; Gouriet v. Union of Post Office Workers, [19771 3 All E.R. 70)
and seen by some to reflect a reactionary bias, moved Michael Foot, then Lord Presi-
dent of the Privy Council, Leader of the House of Commons and Deputy Leader of the
Labor Party, to call for the abolition of their judicial role as well. An interesting ques-
tion is whether the House of Lords can lawfully be abolished. See Mirfield, Can The
House of Lords Lawfully be Abolished?, 95 L.Q. REV. 36 (1979).
19791
Hiller: Robert Bocking Stevens, Law and Politics: The House of Lords as a
Produced by The Berkeley Electronic Press, 1979
174 VALPARAISO UNIVERSITY LAW REVIEW [Vol.14
emphasis on formal logic that underlay substantive formalism led to
judicial automatism and a destructive, narrow, semantic approach to
statutory interpretation-in terms of the American debate, an em-
phasis on excessive self-restraint and conservatism rather than on
judicial activism, and the pursuit of an instrumental or creative
role.12 As a result, the Lords have long been hard put to answer the
question of why the second appeal-that is, the judicial appeal from
the Court of Appeal to the House of Lords sitting in its judicial
capacity rather than its legislative capacity-should not be abolished.
What could they do that had not already been done below? An
answer to this question is offered by Stevens in a way that makes
good sense to Americans who, as Yale's Abraham Goldstein has
pointed out," can find the English legal system intelligible only if it
is appreciated that as yet no Realist revolution has occurred in
England.
One of the many other fascinating aspects of this book is
Stevens' study of personalities and the personal contributions of in-
dividual judges to the work of the House and, more recently, the
growth of English and Scottish law.1" In the process of this analysis
he rightly says, "[Lord] Denning is certainly the most interesting
and possibly the most important English judge of the twentieth cen-
tury."'" Some would say that he should omit the word "possibly" and
substitute "common law" for the word "English." His study of Denn-
ing is particularly absorbing. 6
12. For an insight into the reviewer's bias toward a creative role for appellate
courts see Hiller, supra note 7, and publications cited in note 1.
13. Goldstein, Research into the Administration of Criminal Law: A Report
from the United States, 1966 BRIT. J. OF CRIM. 27, cited in R. STEVENS, supra note 3, at
490. Perhaps the failure of a Realist revolution may be attributed to the fact that such
an approach has been bypassed by Marxist teaching, which ignores the House of Lords
as irredeemably bourgeois and not worthy of analysis along Realist lines. There are,
however, some realists at work. See, among others, the writing of Philip Thomas and
William Twining, especially W. TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT(1973).
14. On the influence of Scots law see, e.g., A. DENNING, BORROWING FROM
SCOTLAND (1963), J. KEITH, THE SPIRIT OF THE LAW OF SCOTLAND (1957); T. SMITH,
BRITISH JUSTICE: THE SCOTTISH CONTRIBUTION (1961).
15. R. STEVENS, supra note 3, at 488. The subtitle under which this statement
fuller look at Lord Denning's creative views and work see A. DENNING, THE DISCIPLINE
OF LAW (1979).
16. It is of some importance to an understanding of Denning to consider that
he sat in the House of Lords for five years-from 1957 to 1962-but then voluntarily
stepped down to the Court of Appeal where he felt he would have more influence in
the shaping of English law. There he has been able to have more influence because (1)
cases are heard there before they move up to the House (if further appeal is taken); (2)
Valparaiso University Law Review, Vol. 14, No. 1 [1979], Art. 8
https://scholar.valpo.edu/vulr/vol14/iss1/8
LA W AND POLITICS
It is impossible to convey here the lucidity and relevance of
Stevens' treatment of many individual jurists (especially the con-
tributions of the Scottish lords)," but one may catch a glimpse of it
in the following paragraph where he also gives a hint of his answer
to the questions posed above.
When the history of the twentieth-century judiciary
comes to be written, Denning's name may well be the
most prominent, not so much for what he did, but for
what he showed was possible. Indeed, all four law lords
discussed in this chapter posed fundamental questions
about the role of the appeal process. Once substantive for-
malism was left behind, the questions of what guided the
law and in which direction could no longer be ignored. For
Radcliffe the guide was a kind of fundamental or natural
law; for Devlin, a Volksgeist to be derived from basically
democratic sources. Reid, more of a craftsman and less of
a philosopher, preferred to apply a concept of common
on the Court of Appeal the Judges generally sit in panels of three-rather than the
House's five; and (3) as Master of the Rolls, Denning governs the makeup of the panels
and can decide what cases he will sit on. He explains his move as follows:
Many a time I have been asked: "Why did you step down from the House
of Lords?" My answer is: "I was too often in a minority. In the Lords it is
no good to dissent". In the Court of Appeal it is some good. On occasion a
head-note there says: "Lord Denning dissenting." Let me recall a few
which have pointed to the way ahead and have led to decisions by the
Lords which might never have taken place except for my dissenting from
previous precedents; such as Chandler v. Crane, Christmas about
negligent statements, Bonsor v. Musicians' Union about trade unions,
Conway v. Rimmer about Crown privilege, Padfield's case about
ministerial discretion, and Schorsch GmbH v. Hennin about judgments in
foreign currency.
A. DENNING, supra note 15, at 287. He goes on to say that, though many times he has
found himself in dissent, even his dissents (especially in the Court of Appeal), have
been "worthwhile" because on occasion they have ultimately persuaded other judges
(as shown above) or Parliament. Charles Evans Hughes said: "A dissent in a court of
last resort is an appeal to the brooding spirit of the law, the intelligence of a future
day, when a later decision may possibly correct the error in which the dissenting judge
believes the court to have been betrayed." C. HUGHES, THE SUPREME COURT OF THE
UNITED STATES 68 (1936). The same of course applies-and perhaps more so-to the
Court of Appeal. Of this Denning is well aware. In fact, he is counting on it.
17. His description of Lord Keith as having had "an innate sense of the
creative element in the appellate process" would seem to apply to most of the Scottish
law lords. R. STEVENS, supra note 3, at 512. Ironically (or perhaps because Scot's
law is more creative) the House often mishandles Scottish appeals. See A. DONNER,
THE ROLE OF THE LAWYER IN THE EUROPEAN COUNTRIES 31-33 (1963). For an illustrative
case see White & Carter (Councils) Ltd. v. McGregor, [1962] A.C. 413.
1979]
Hiller: Robert Bocking Stevens, Law and Politics: The House of Lords as a
Produced by The Berkeley Electronic Press, 1979
176 VALPARAISO UNIVERSITY LA W REVIEW [Vol. 14
sense behind the shroud of judicial restraint. Judicial
restraint was not something that came easily to Denning.
He saw few political or intellectual reasons why, in the
areas where litigation took place, the appeal judges should
not be law-givers. These four partly competing concepts
may well reflect the lines of battle along which discussion
of the appellate process could take place in the later 1970s
and the 1980s. 18
This facing toward the future is where the book leaves us. He
ends the book by saying:
The next decade will show whether the appeal judges are
capable of providing a rationale that will at a minimum
make them an essential element in the British Constitu-
tion and, ideally, raise the issue of whether they might
not appear as junior partners of Parliament in the
lawmaking process."9
One wonders, for example, what future role the House of Lords
might play in the event of an enacted Bill of Rights" or the Privy
Council might occupy in the event of devolution." This remains to be
seen and promises exciting new developments in English law and in-
stitutions.
Robert Stevens' book is an outstanding piece of legal historical
scholarship. I know of none to equal it in our time, though there are
a number of fine legal historians writing in England today.' The
scholars are ceasing to be intimidated by the works of Holdsworth
and Pollack and Maitland. Anyone interested in English law, the
function of judges and the role of law in society will find it utterly
fascinating. While, because of its seven hundred pages and many ab-
sorbing footnotes and tables, it is not a book that one can read in
one sitting, this reviewer resented all distractions that kept him
from doing so. On the other hand, it is a book that one hates to
finish because then the magic link with a brilliant storyteller is
broken.
18. R. STEVENS, supra note 3, at 505.
19. Id. at 627.
20. A written Bill of Rights for England is one of Lord Justice Scarman's
favorite ideas. See L. SCARMAN, ENGLISH LAW-THE NEW DIMENSION (1974).
21. See Brewster, The Rule of Law and the Voluntary Society, 14 J. Soc'y.
PUB. TCHRS. OF L. 286, 289 (1979).
22. See, e.g., L. BLuM-COOPER & G. DREWRY, supra note 2; L. RADZINOWICZ,
A HISTORY OF ENGLISH CRIMINAL LAW AND ITS ADMINISTRATION FROM 1750 (1948- ) (4
Vols. to date); E. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT (1975).
Valparaiso University Law Review, Vol. 14, No. 1 [1979], Art. 8
https://scholar.valpo.edu/vulr/vol14/iss1/8
19791 LA W AND POLITICS 177
Finally, there is credit due the publisher. A book whose author
attempts to accomplish as much as does Stevens' presents many pro-
blems in terms of format, type style, cost of materials, proofreading
of appendices, bibliographies, indices and thousands of detail-filled
footnotes. The University of North Carolina Press has produced a
product technically and aesthetically worthy of the manuscript.
Jack A. Hiller*
*Professor of Law, Valparaiso University School of Law.
Hiller: Robert Bocking Stevens, Law and Politics: The House of Lords as a
Produced by The Berkeley Electronic Press, 1979
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Robert Bocking Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976

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