CORRESPONDENCE
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01764.x |
| Date | 01 May 1988 |
| Published date | 01 May 1988 |
fiy
19881
REVIEWS
407
in that it is an attempt to anticipate and provide pre-packaged replies to
the sceptic who sees little or no role for legal theory in the context
of
the
law syllabus.
It
is ironic,
I
think, that the true sceptic would probably be
dismissive
of
MacCormick and Twinings’ essay not
so
much because
of
what they have
to
say, but becaus+perhaps typical
of
the British tradition
in legal theory--they consider themselves competent to speak for their
non-theoretical adversaries, if only for the purpose of constructing, to
their own advantage, a peculiarly pre-emptory rhetoric. Having said all
of
this,
I
should
of
course add that I am not a sceptic; and while not
particularly keen on the manner in which MacCormick and Twining have
decided to present their arguments, with those very arguments
I
have little
quarrel.
Finally there is Karl Llewellyn’s short piece, “A Required Course in
Jurisprudence.” Taken in isolation, detached from the rest
of
his work,
this short address to a symposium on jurisprudence and legal history
suggests that, far from being one
of
the most seasoned and persistent of
professionals, Llewellyn could manage little more substantial than a few
swift swipes at that punch-bag that we legal theorists frequently and
somewhat vaguely term the black-letter tradition. This is,
of
course, far
from the truth. Numerous contributors to this collection are clearly
indebted to Llewellyn’s writing. “The only way to focus on the Whole,
and to the meaning
of
the Whole,” Llewellyn insists, “is to devote a
course
To
the Whole”
(p.255).
If that “Whole” is taken, in this context,
to mean the common law, then certainly we have here a book that on
most counts attends to it more than amply. NEIL
DUXBURY
*
CORRESPONDENCE
I refer to the article on the
Bhopal
case by Mr. P. T. Muchlinski in the
September 1987 issue
of
the Review. There is an error in the article
which needs
to
be pointed out.
The Indian law relating to Union Carbide’s liability, as set out in the
article at pp.564
et
seq.,
has been radically changed by the judgment
of
the Supreme Court
of
India in
M.
C.
Mehta
v.
Union
of
India,
which was
delivered on
20
December 1986 and has been reported at AIR 1987 S.C.
1086. The
Mehta
case involved, as
Bhopal
did, the escape
of
a toxic gas
and the Supreme Court has laid down new principles
of
law (at 1098-
1100) applicable to claims for compensation for death or injury to person
or property caused as a consequence
of
carrying on a “hazardous or
inherently dangerous activity”,
e.g.
manufacture
of
a toxic gas. These new
principles are:
1.
An enterprise carrying on a hazardous or inherently dangerous
activity is strictly and absolutely liable for any harm caused by such
activity and it is no defence that the enterprise had taken all
reasonable care and that the harm occurred without any negligence on
its part.
2.
Since the persons harmed would not be in a position to isolate the
process
of
operation from the hazardous preparation
of
substance or
any other related element that caused the harm, making the enterprise
strictly liable for causing such harm is part
of
the social cost for
carrying on the hazardous or inherently dangerous activity.
*
Law Department, London School
of
Economics and Political Science.
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