‘COURTS ON TRIAL‘*
| Published date | 01 October 1950 |
| Author | A. H. Campbell |
| DOI | http://doi.org/10.1111/j.1468-2230.1950.tb00179.x |
| Date | 01 October 1950 |
'
COTJRTS
ON
TRIAL'"
You
never
can
tell till the cnse is decided,
The best fighting plen that was ever provided
Which way the decision will go;
Mny melt like
n
handful of snow.
With findings in fnct, and findings in
lnw,
With precedents
old,
nnd distinctions to draw,
Oh
I
you never cnn tell till the cnse is decided,
Which way the decision will
go.
--More
Law
Lyric3
by Robert Bird (Edinburgh,
1898).
SO
sings the litigant, but his voice has not always penetrated into
the study of the jurist.
Our
contemplative jurisprudence was,
however, troubled when twenty years ago Judge Frank published
his
Law
and
the
Modern
Mind,
the first English edition of which
was reviewed in the last issue of the
Modern
La7u
Review.
Now this
distinguished and formidable disturber of the peace has launched
another major attack.
The argument of
Law
and
the
Modern
Mind
was directed
against the traditional view of law as a system of settled and certain
rules from which it is possible to deduce by logical operations
'
the
law' applicable to any given set of facts. Few of
us
now hold
that view with the old conviction. In the rapidly changing world
of
today we have perforce come, even the professors, to a greater
or
less degree of
'
rule-scepticism
'
;
we admit that at least sometimes
a case does not clearly fall undcr a pre-established rule, that the
court may have to decide whether
or
not
to
extend
a
rule to cover
a
new case
or
to choose which of two possible rules to apply, and
that in these circumstances the court cannot reach its decision by
pure legal logic. But Judge Frank goes further. He writes,
sometimes, as if he had no use for legal rules at all. At any rate,
he argues in the present work that it is senseless to speak of legal
rules creating legal rights, that my legal rights are unknown until
they have been tested and vindicated by the decision of a court
in
a
specific case and the decision is (practically speaking) something
unpredictable.
To
the present writer this argument seems to go
either too far
or
not far enough.
If
we follow Judge Frank's line
of thought, what is the point of saying that a right exists even
when
a
court has given a decision? Suppose the court decides in
my favour, my opponent may continue the fight in the Court
of
Appeal. Suppose every court up
to
the Supreme Court of Appeal
decides in my favour, is my right now secure? What if my
*
Courts
OIL
Trial.
Myth.
and
Rcaliiv
in
Amcriccun
Juctice.
By
J~ROYE
FRANK.
Princeton University Press (London
:
Geoffrey
Cnmberlege).
1949.
xii and
441
pp.
40s.
net.
445
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