McWhinney, Edward

English

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THE YALE LAW JOURNAL
not by the railroads to whose interest it is supposed to be so slavishly devoted.
The Presidential Advisory Committee on Transport Policy has proposed legis-
lation which the railroads favor and the trucks oppose. It is difficult to deter-
mine whether the President has thrown his effective support in any direction.
The fact is that because the questions involved are so profoundly complex and
difficult, because public and professional perplexity is so intense, and the oppos-
ing forces are so violently aroused, it is quite misleading to lay the blame for
failure at any one door. Indeed, the inability to produce a new policy at will
is not, in my book, ipso facto a failure, though it would seem to be in Professor
Bernstein's.
One may, then, follow Professor Bernstein's argument that the merits of
the independent agency have been exaggerated. But when he loads upon it all
of the frustrations of his Utopian yearning, he is transcending analysis and
providing himself with a sacrificial scapegoat.
Louis L. JAFFEt
A COMMON LAWYER LOOKS AT THE CIVIL LAw. By F. H. Lawson. Ann
Arbor: University of Michigan, 1955. Pp. xix, 238. $4.00.
EXECUTIVE DISCRETION AND JUDICIAL CONTROL. AN ASPECT OF THE FRENCH
CONSEIL D'ETAT. By C. J. Hamson. London: Stevens and Sons, Ltd.,
1954. Pp. x, 222. 12s 6d.
Two recent books by English authors attest to the keen post-war interest
in the United Kingdom in the teaching and research of comparative law. The
authors, Professors Lawson and Hamson, hold the Chairs of Comparative Law
at Oxford and at Cambridge respectively. Professor Lawson originally pre-
sented his essays as the Thomas M. Cooley Lectures (Fifth Series) at the Uni-
versity of Michigan; Professor Hamson's work represents the sixth annual
group of lectures delivered in the United Kingdom under the terms of the
Hamlyn Trust.
The Hamlyn Trust furnishes a convenient starting point for the present
review. The terms for the administration of the trust provide for a lecture
series "to the intent that the Common People of the United Kingdom may
realise the privileges which in law and custom they enjoy in comparison with
other European Peoples."'- Yet, despite this admonition, Professor Hamson's
lectures under the Hamlyn Trust are unmarred by any smug, a priori assump-
tion of the superiority of English law to alien systems; nor, for that matter, do
Professor Lawson's essays involve such an assumption. Therein lies the par-
ticular interest and significance of the two works. Neither book is an attempt
to explore hitherto undiscovered source materials or to break new ground from
tProfessor of Law, Harvard Law School.
1. EXECUTIVE DIscRETioN AND JUDICIAL CONTROL ix.
1076 [ Vol. 65
REVIEWS
the research viewpoint; rather they are collections of the insights of two culti-
vated and thoughtful common lawyers looking at the civil law countries. The
English have not been noted until recent years for their concern with the legal
systems of other countries, particularly of those without a common law history.
Except for the study of Roman law, long endowed in the ancient universities,
comparative law has been the subject of rather infrequent academic legal study
in the United Kingdom. Professor Lawson is in fact only the first incumbent
of the Chair of Comparative Law at Oxford.
Because his subject for comparative study is administrative law, Professor
Hamson has more to atone for in terms of the sins and omissions of his pre-
decessors. The teaching of English administrative law has only in the last few
years begun to come of age. This long delay in the process of maturation re-
sulted largely from the savage attacks made seventy years ago by the incom-
parable Professor A. V. Dicey, high-priest of English public lawyers, upon the
structure and organization of the emergent French administrative law. Dicey
characterized the French system of separating special administrative courts
from the ordinary civil courts as involving a double standard of justice-one
system for a privileged group of officials and administrators, another and in-
ferior variety for the ordinary public. Dicey, of course, never properly under-
stood the French legal system of his day. But his polemics, written as they were
in the most felicitous language and style, persuaded successive generations of
English lawyers that special administrative law tribunals necessarily connoted
governmental arbitrariness. He insisted that the classical concept of the rule
of law must be sustained and rigidified by subjecting the rapidly burgeoning
administrative law bodies in England to the control and supervision of the
ordinary common law courts. Antiquated as these doctrines may seem today,
it is only necessary to recall the intemperate invective against administrative
law in Lord Chief Justice Hewart's The New Despotism, published only a
generation ago, in order to appreciate the significance of Dicey's role in im-
peding for so long the adjustment of traditional English legal concepts and
machinery to the pressing necessities of modern industrial society. Professor
Hamson suggests, perhaps a little too generously, that had Dicey been alive
today he would have preferred the current French system of a separate ad-
ministrative law jurisdiction to the current "English situation which, upon
pretence of maintaining a single universal jurisdiction, effectively exempts
from any judicial control the critical entity in our present social system-the
Minister and his Department." 2
However that may be, Professor Hamson's own approval of the Conseil
d'Etat and his admiration for its flexibility in the face of changing social con-
ditions are very clear. This approval can be seen in his striking discussion of
its decisions under the Vichy regime, when the Conseil d'Etat "for prudential
reasons" might have been tempted to abate its own jurisdiction.3 The actions
2. Id. at 52.
3. Id. at 167.
19561 1077
THE YALE LAW JOURNAL
of the Conseil d'Etat in this context are a clear refutation, if any further refu-
tation were needed, of the belief after Dicey that special administrative tribunals
must necessarily yield to the executive in any contest between considerations
of governmental power and individual rights.
Professor Hamson is less sympathetic toward the Tribunal des Conflits,
the special mixed tribunal set up to determine conflicts between the Conseil
d'Etat and the ordinary civil courts. He does recognize that in contests for
jurisdiction between the administrative and the civil courts the Tribunal des
Conflits has tended increasingly to favor the former. He wonders, neverthe-
less, whether the heavy financial burden that the Tribunal des Conflits involves
for the litigant and the extra complexities of law that come with it are really
necessary. His argument continues:
"Is it really subversive of the French system that the judicial tribunal,
if preferred by the plaintiff, should be permitted to assess the damages,
exclusively against the State if necessary? Would it not be sufficient to
provide that a recours en cassation could be brought to some specially
constituted court in these cases in which it is really alleged that the judicial
tribunal has misapplied the rules of administrative law? ... To the for-
eigner it would seem that the process of conflict is sometimes actuated
either by a fantastic spirit of legal refinement or by the mere obstinacy
and caste-sense of the French fonctionnaire."
4
Professor Lawson, for his part, ranges over a much wider area. His subject
is code jurisprudence, and he canvasses in considerable detail the civil law
systems of modern France, Germany and Switzerland, making occasional
illuminating references to civil law experience in many other jurisdictions, in-
cluding Quebec and Louisiana. He denies most effectively the traditional di-
chotomous classification of common and civil law systems in terms of their
employment respectively of inductive and deductive judicial reasoning. While
recognizing the strong elements of continuity and stability in civil law juris-
prudence even if there be no formal civil law doctrine of precedent, he notes
at the same time the flexibility in application and the changes in meaning of
specific provisions of the civil codes, especially in the area of delictual liability.
When Professor Lawson examines the relative standings in common and civil
law systems of legislator and of judge, of legal practitioner and of jurist, he
seems to look rather wistfully at the relatively higher regard accorded on the
Continent to the law professor and commentator.
The most striking feature of Professor Lawson's approach to the civil
law from the viewpoint of the North American reader, however, will surely
be his emphasis on the importance of classical Roman law. Professor Lawson
is concerned with tracing the source of modern civil law rules and procedures,
whether of France, Germany or other countries, to the original Roman law
source materials, and thus with viewing contemporary Continental legal systems
as the products of a continuous stream of legal development from early times.
4. Id. at 87.
1078 [ Vol. 65
REVIEWS
This particular methodological approach is readily adjusted to the special skills
of Oxford students, who, at the baccalaureate level, are subjected to heavy doses
of the Institutes of Justinian; but there may be a risk, correspondingly, of view-
ing the modern civil law systems only as something in the nature of appendages
to Roman law. Professor Lawson makes a very eloquent plea for a return to
the study of Roman law, though he concedes the special problems presented in
this regard by the general decline in classical and Latin studies.
In the light of Professor Lawson's argument, it is well to note that despite
the debt of the modem sociological school of law to the historical method
(remembering the pioneer contributions to the sociology of law made by Eng-
lish legal historians like Maine and Vinogradoff), the historically-based ap-
proach to law has suffered considerably in the general post-war reaction to
the neo-Hegelian excesses of the era between the two wars. In North America
the rapidly proliferating courses in comparative law are largely attuned to the
needs of the dominant pragmatic, instrumental approach to legal education,
and its current emphasis on the importance of developing close legal asso-
ciations with foreign countries. This approach results in an inevitable concen-
tration on the current law of other countries and a concomitant tendency to
minimize the quest for the historical antecedents of those foreign legal systems.
The stress is on the particular responses of different legal systems to the same
or similar types of social problems. The major North American works in recent
years in the field of comparative and foreign law lend themselves readily to this
sociological approach. I need mention here only Arthur von Mehren's compara-
tive treatment of modem Western European private law 5 and John Hazard's
outstanding collection, written with Morris L. Weisberg, of cases arising under
the Soviet Civil Code.
6
Professor Lawson, in presenting his personal approach to the study of
comparative law, makes an attractive cultural case for using Roman law not
only as the starting point but also as the basic emphasis throughout. If such
an approach seems to defer too much to the dead-hand control of history, it
must be recognized that the sociological method of North American studies in
comparative law makes very special demands on the law teacher: the unifying,
integrative factor supplied by Professor Lawson's stress on the seminal contri-
bution of classical Roman law must come instead from jurisprudence, or more
strictly from comparative legal theory. A via media might be to use the his-
torical method only by way of introduction to the study of the contemporary
codes. Thus, for example, one might begin the study of the Code Napoleon
with the historical division of France into the two zones, the Pays de Droit Ecrit
and the Pays de Coutuines, tracing, in this introductory phase, the development
of French law through the period of Monarchical Ridaction des Coutumes, the
Grandes Ordonnances and the unifying work of the authoritative commentators
5. VON 'MEHREN, THE CIVIL LAW SYSTEI-MATERIALS FOR THE COMPARATIVE STUDY
oF LAw (to be published in fall of 1956).
6. HAZARD & WEISBERG, CASES AND READINGS ON SovlEr LAW (1950).
1956] 1079
THE YALE LAW JOURNAL
(especially Pothier), up to the deliberations of Napoleon's codifying comnis-
sion. A convenient starting point in the study of the German Code might be
the bitter controversy between von Savigny and Thibaut over the principle of
adopting a code for Germany, to be followed by the attack of von Gierke and
the Historical School on the draft Code and Stammler's final effective rebuttal.
A suitable introduction to the study of the code of Soviet Russia would be
Reisner's post-Revolutionary arguments (following Petrazycki) for abrogation
of the private law legislation of the old regime in favor of an intuitive law of
the workers' class; and then the official retreat to enactment of the series of
positive law codes still in force could be examined. This somewhat limited re-
course to the historical method has a distinct advantage over Professor Lawson's
predominantly Roman law-oriented approach. The former would allow an
ultimate appraisal of the relative advantages and disadvantages of concretizing
a nation's legal principles in the systematized, rationalized form that a code
involves, not merely from the rather alien standpoint of the Anglo-American
common law systems, but within the context of modem Continental code juris-
prudence itself.
EDWARD MCWHINNEYt
CIVIL LIBERTIES AND THE VINSON COURT. By C. Herman Pritchett. Chicago:
University of Chicago Press, 1954. Pp. xii, 297. $5.00.
IN Charles Herman Pritchett the University of Chicago has a political scien-
tist who follows the term-in and term-out work of the United States Supreme
Court much more closely than all but perhaps a few lawyers and more pains-
takingly than most academic scholars in the law schools. This description,
let it be said at once, is not intended in any way as a reflection on lawyers
or teachers of law, but as a high compliment to Professor Pritchett. For it
was he who eight years ago gave us The Roosevelt Court: A Study in Judicial
Politics and Values, 1937-1947. Now we have as a kind of successor rather
than sequel, his new study of the Supreme Court's postwar work, Civil
Liberties and the Vinson Court.
The two titles suggest an important difference in scope. The Roosevelt
Court dealt with the Supreme Court's disposition of the cases of the decade
1937-1947. It reviewed the whole of the Supreme Court's case grist-including
the fields of federal regulation, state regulation, taxation, civil rights generally
and procedural protection in criminal prosecutions. But Civil Rights and the
Vinson Court, as the title indicates, centers on those cases arising from con-
flicts between some unit of government and the citizen in the exercise of the
human liberties that are proclaimed in the Bill of Rights.
Professor Pritchett applies a sound limitation in his new volume. In devoting
'Barrister-at-Law, Associate Professor of Law, University of Toronto.
1080 [Vol. 65


Lawson: A Common Lawyer Looks at the Civil Law /  Hamson: Executive Discretion and Judicial Control. An Aspect of the French Conseil D\u27Etat

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Lawson: A Common Lawyer Looks at the Civil Law / Hamson: Executive Discretion and Judicial Control. An Aspect of the French Conseil D\u27Etat

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