English Law In The Making
| Published date | 01 October 1940 |
| Date | 01 October 1940 |
| Author | Sidney Post Simpson |
| DOI | http://doi.org/10.1111/j.1468-2230.1940.tb02738.x |
ENGLISH LAW
IN
THE
MAKING
I21
ENGLISH
LAW
IN
THE
MAKING
The modern development of the law of England is not only
a
matter of
interest but an important subject
of
study to the legal profession in the
United States. To an American lawyer, indeed, England tends to seem
a
forty-ninth state, albeit the oldest and for legal history the most important,
so
that
a
statute of Parliament or
a
judgment of the House of Lords has
much the same significance, for example, to
a
member of the bar of New
York
as
has an act of the legislature of Massachusetts or
a
decision of the
Supreme Judicial Court of that sister State. The Judicature Acts are
as
familiar to American students
of
procedural law as is the pioneer New
York Code of Procedure of
1848
or the Federal Equity Rules of
1912;
the decision of the Court
of
Appeal in
Warner Brothers Pictures, Znc.
v.
Nelson’
recently formed the
basis
for an important moot in
a
large American
law school; the English property legislation of
1922
and
1925
has been the
subject of detailed analysis in American legal journals,*
as
has the recent
Criminal Justice Bi1l;s in the judicial field, to give but
a
single example,
the Appellate Division of the Supreme Court of New York in
1928
decided
an important case‘ on the sole authority of
Rutherford
v.
Acton-Adams.&
The forces, therefore, that have shaped and are shaping the form and
substance of English law are matters of moment to the American legal
profession.
It
is
with this background of informed and vital interest in
a
cognate
legal system that an American lawyer comes to examine what, he is told on
high authority,
is
“one of the classics of modern English jurisprudence”E
-the third edition of Professor
C.
K.
Allen’s
Law
in
the Mahing.’
He will
realise of course, from prior editions, that the book is not,
as
the title might
indicate, concerned with the phenomena of nascent law in early times or in
primitive societies, but rather with the “material sources” of law in
developed systems-in the author’s words, with
“
those agencies by which
rules
of
conduct acquire the character of law by becoming objectly definite,
uniform, and, above all, compulsory”8-and that the sources discussed by
the author,
as
being those “which have been the most frequent subjects
of jurisprudential study,”g are custom, precedent, equity and legislation.
Such
a
reader
is
also likely to know that the
first
edition of
Law
in the
Making10
was received with acclaim in England1’ and with substantial
1
[1g37]
I
K.B.
209.
*
See, for example, Warren,
The Law
of
Property Act,
rgzz,
21
Mich.
L.
Rev.
245 (1923)~;
Bordwell,
Property Reform in England,
II
Ia.
L.
Rev.
I
(1925);
Schnebly,
Legal” and “Equitable” Interests in Land under the English Legislation
of
1925.40
Harv.
L.
Rev.
248 (1926).
8
See
Note,
40
Col.
L.
Rev.
105
(1940).
Radel
v.
134
West 25th Street Bldg.
Corp.,
222
App. Div.
617, 226
N.Y.
Suppl.
560
(1928).
5
[I9151
A.C.
866.
Perhaps, by way of reciprocity, New York may lay claim
to some influence
on
the decisions in
O’Donoghue
v.
Stevenson,
[I9321
A.C.
562,
and
Haynes
v.
Harwood,
[I9351
I
K.B.
146.
Campbell,
Book
Review,
56
L.Q.
Rev.
193. 194 (1940).
Oxford,
1939.
Page references
simpliciter
in later footnotes are to this
book
and edition.
8
P.
I.
P.
60.
lo
1927.
See
review
by
H.
D.
H. [Hazeltine],
44
L.Q.
Rev.
236 (1928).
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