Claster, Daniel S.

English

University of Kentucky

Kentucky Law JournalVolume 50 | Issue 1 Article 111961Current Law and Social Problems edited by R. St. J.MacDonaldDaniel S. ClasterUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Book Review is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationClaster, Daniel S. (1961) "Current Law and Social Problems edited by R. St. J. MacDonald," Kentucky Law Journal: Vol. 50 : Iss. 1 ,Article 11.Available at: https://uknowledge.uky.edu/klj/vol50/iss1/11Book ReviewsCuuENT LAW AND SoCAL PROBLEMS. Edited by R. St. J. MacDonald.University of Toronto Press, 1960. viii, 204 pp.The six papers which comprise Current Law and Social Problems,edited by R. St. J. MacDonald, represent the first of a series ofpublications sponsored by the Faculty of Law at the University ofWestern Ontario for the primary purpose of promoting "collaborationamong lawyers, social scientists, juristic philosophers, and others whoare interested in exploring social values, processes, and institutions."(page v).The first paper, "In What Sense is Freedom a Western Idea?", isthe text of an address delivered at the University of Western Ontarioby John P. Plamenatz, identified as a Fellow of Nuffield College,Oxford, and the only contributor to the volume who is not a lawyer.The title of his paper indicates that he is trying to go beyond polemicsin discussing whether the idea of freedom is a uniquely western con-tribution to mankind. Instead, he recognizes that other traditions haveplaced high value on what we would recognize as freedom, but that"whatever arises from reaction against the enormous power of remoteas distinct from local government, or from the great increase in socialmobility, or from the revolt against ecclesiastical authority, is peculiarlywestern." (page 12).He traces the high value placed on freedom by the ancient Greeks,through its relative neglect in the Middle Ages, to the renascence ofphilosophic and practical concern with the concept accompanying theReformation and industrialism. The older ideas are not seen as dif-ferent from similar values in the history of Chinese or Indian thought,for example; but the forms they have taken in the modern West reflectthe emergence of mass industrial society. Since these forms reflecta response to social change which happened to occur in westerncivilization, rather than any unique elements in western culture, it isnot unlikely that they will emerge with industrialization of other partsof the world.Plamenatz finds four expressions of freedom which he believes arepeculiarly western: (1) constitutional government regulating the exer-cise of authority and guaranteeing the independence of the judiciary,reflecting safeguards against the increasing danger of arbitrary au-thority accompanying industrial development and the division of labor,KENTUcKY LAW JOunNAL(2) representative government, as a way of preserving the idea thathuman authority rests on consent, for the social situation in whichdirect consideration and consent in law making becomes impossiblefor everyone, (3) liberty of conscience, as distinct from mere tolera-tion, in order to guarantee the idea that men should live by ruleswhich they inwardly accept when there is increasing diversity amongthe community in these rules, and (4) the emancipation of theindividual from the family, a recognition of the emergence of theperson as the basic unit whose rights might be impeded by familyauthority in the same way that the rights of the family neededprotection from intrusion by political authority when the family wasa more important social entity.Two of the papers deal with problems of international law, one fieldin which there seems to be substantial agreement concerning thedesirability of interdisciplinary cooperation. The first of these is a"policy-oriented" outline of the international law of fisheries by D. B.Johnson, who follows the approach of Professors Lasswell and Mc-Dougal of Yale Law School.Professor Johnson considers such aspects of fishery resources asthe process of claim and the decision process in disputes, in terms ofmajor objectives, conservation and exploitation.A good example of the one of the central dicta of the policyapproach-the value of research and opinion from a variety of dis-ciplines-takes form as he discusses how to guard against depletionand share resources. Johnson shows specifically how knowledge aboutsuch things as the spawning habits of species of fish, or the role offishing in national and international economics, might be consideredin matters of international fisheries law.The second paper concerning international law, by Messrs. D. B.Sterling and W. J. MacLeod, formulates a Canadian viewpoint ofinternational copyright control. They begin by reviewing the recenthistory of international copyright law, mainly the Berne Conventionof 1886, which was until recently the principle treaty governing inter-national copyright control. With four revisions since its inception, itwas the major international copyright treaty until the last decade,subscribed to by the British Commonwealth, most other Europeancountries, but not the Soviet Union, and not the United States. Since1952 the Universay Copyright Convention, promulgated under UnitedNations sponsorship, has represented a significant attempt at com-promise between two points of view: one, that the purpose of copyrightis to protect property rights of an author in his work, held by BerneUnion members, and the very different theory, endorsed by the United[Vol. 50,Boox REvmwsStates and Latin American countries, among others, that copyright is asocial mechanism expressing "the need to balance the author's rightsand the interests of society." (page 75). The United States positionis perhaps not surprising in view of the great influence which DeanPound's "sociological jurisprudence" has had on American lawmaking;but this reviewer finds it interesting to note that in this area the UnitedStates, traditionaly the stronghold of individual rights, comes out withgreater emphasis on the welfare of "society" than the Europeancountries.Sterling and MacLeod proceed from this review to a discussion ofCanadian copyright law in relation to these international agreementsand in relation to the particular aims and circumstances of Canadianpublishing. It is a well-stated case in point, more explicit than most,of legislative recommendations based on a clear understanding of thevalues of a society, and in the light of the prevailing objective circum-stances. Thus the authors' recommendations take account of a desireto promote native Canadian writing and at the same time to make allwritten works available at as low cost as possible, meanwhile takingaccount of such factors as distribution problems in a large sparselypopulated nation, and the effects of other countries' copyright laws onCanadian imports and exports. The reflection of a nation's values incopyright law is pointed up by considering the Canadian case in con-trast to the situation in the Soviet Union, where only a few westernwriters receive royalties from sales of their books because the Russianshold that "royalties to capitalists are contrary to proletarian principles."(page 105).The next two papers reflect social problems arising out of one formof social disorganization particularly common in jurisprudence. Thefirst of these, by Kechin Wang, re-evaluates tests for determining legalresidence as applied to corporate bodies under the British Income TaxActs, in the light of several recent decisions; and the article following,by Earl E. Palmer, deals with the remedial authority of labor arbitra-tors. In both cases the disorganization results from a legal concepthaving first become stabilized, followed by some social change whichhas rendered the previous concept inappropriate. In the first case thestable concept is that a person should pay income tax in his place ofresidence (although this legal precept is by no means universallyaccepted, as seen in the recent dispute concerning New Jersey residentswho work in New York and vice versa). But the problem of simplydefining residence arose when the income tax statutes were expandedto cover corporations as well as individuals. The discrepancy in the'second case arises because labor arbitration tends to be interpreted in19611KENTUcKY LAW JouRNALjudicial terms. Even though new philosophies of labor arbitration at-tempt to define the role of the arbitrator as distinct from that of thejudge, the similarity between them is frequently carried too far; that is,because an arbitrator is something like a judge, there is some tendency,especially among men with legal training, to fall back on their notionsof the judicial role in determining the scope of arbitration, withouttaking into account the requirements peculiar to the situation ofarbitration.The editor's own contribution to the volume, on narcotic drugaddiction in Canada, concludes the volume. A discussion of the back-ground of the problem-a survey of the kinds of drugs used and theireffects, along with some discussion of the illicit traffic and extent ofaddiction in Canada-constitutes more than half the article. MacDonaldfollows with an outline of Canadian law governing the import, sale,distribution, and use of narcotics. Although addiction is not itselfillegal in Canada, possession of narcotics through unauthorized chan-nels is; and there are especially heavy penalties for trafficking innarcotic drugs.Several proposals for dealing with addicts are mentioned, whichrun the usual gamut: from correctional officers advocating a policy oflong incarceration with its emphasis on protection of society, topsychiatrists primarily oriented toward rehabilitation of the individual.A Special Committee of the Canadian Senate, reporting on its investiga-tion of narcotics addiction in 1955, advocated combining vigorousenforcement with the provision of facilities for treatment of narcoticsaddiction. They rejected plans based on the British system, underwhich addicts can obtain narcotics at nominal prices under medicalsupervision, because they felt that the Canadian situation was notcomparable with that in Britain. And MacDonald, in concluding,emphasizes the importance of studying the aspects of the problempeculiar to Canada: "... . we should bear in mind when we analogizefrom British and European experiences, which so often are referred toin seeking solutions, that our societal customs, traditions, moral stand-ards, behavior patterns, processes of disorganization and reorganizationare not British, European, or, for that matter, entirely American, andthat solutions developed in other lands will not necessarily or auto-maticaly work well in the context of our own society." (pages 203-204).Since the title of the volume and the introductory statement quotedfrom above suggest that law and social problems have something todo with each other, and since this reviewer's social science traininghas influenced him to look for these connections, the foregoing observa-tions have tended to focus on those aspects of the papers which bring[Vol. 50,BooK REviEwsthese connections out. Let us recapitulate in a more general way thesocial science aspects of the legal problems dealt with in this book.First, the legal system of a society is an integral part of the valuesand institutions of that society. But-a second generalization- at anygiven time and place, some part of the legal system may not be inharmony with the larger social configuration. Taken together, thesetwo propositions will suggest to the prudent jurisprudent (forgive mel)that law which violates the existing social values too greatly will notbe tolerated, but is likely to break down in poor enforcement, refusalto convict, etc. But they also suggest that legal sanctions can promoteand solidify social values already present.A third generalization: even though there may be conflict on someissues between parties-whether between nations in international lawor between opposing interests in labor-management relations-bysearching for common goals some consensual basis on which to buildlaw may be found. And fourth, by understanding the relation of posi-tions within a society to each other, better law may be derived govern-ing the relations among people who occupy those positions.Although this book has not made explicit the ways in which currentlaw and social problems are interrelated, it is a very interesting case-book, useful in stimulating a beginning examination of these relation-ships.Daniel S. Claster*Instructor in Sociology, University of Kentucky.

Current Law and Social Problems edited by R. St. J. MacDonald

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=3174&amp;context=klj

Current Law and Social Problems edited by R. St. J. MacDonald

Abstract

Similar works

Full text

Available Versions

University of Kentucky