Liberal Trends in Present‐Day Commercial Law
| Date | 01 April 1940 |
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00765.x |
| Author | R. S. T. Chorley |
| Published date | 01 April 1940 |
272
MODERN
LAW
REVIEW
April,
1940
LIBERAL
TRENDS
IN
PRESENT-DAY
COMMERCIAL LAW
OME
ten years ago the present writer had occasion to
survey some of the more notable disagreements which have
arisen between the Courts, in declaring what the law
is,
and the business community in
its
contention
as
to what the law
ought to be.' He found that the principal source of di5culty had
been the doctrine of precedent. This had led to the development
of
a
system of
rigid
rules which with the growth
of
new methods
of commerce had proved
a
hindrance to progress. An additional
factor had been the tendency, inherent in
all
legal systems,
towards
a
purely legalistic or logical conception of development
in which the system tends to an ideal farm, inherent
in
its
pre-
mises and lacking regard for the actual conditions which prevail
in the world of action.
It
is
not, of course, possible for any legal
system to develop
for
long
in
such
a
way, and for
it
to do
so
at
all
the legal profession must have become
a
powerful and independent
force
in
society. Law is in the end the expression of fundamental
social and economic forces which must have their say, but
adherence to precedent and legalistic conceptions may distort
its growth and make
it
the less able satisfactorily to perform
its
function of oiling the machinery of society. Whatever the type
of society, be
it
feudal, capitalist, or socialist, the law should,
and in the end
will,
adapt itself to playing
its
part in the func-
tioning of the prevailing system. The more consciously lawyers
work towards this end, instead of devoting all their energies
to the mere artistic building of
a
legal edifice of which the founda-
tions are legal maxims, e.g. of the common law, and the tricky
rules and subrules logically deduced therefrom, the fewer mal-
adjustments will occur in society, the less friction and the more
well being.
It
is not, of course, suggested that lawyers shovl4
have no other objectives, but this
is
not the place for
a
discussio:?
of what these should be.
In English mercantile law ever since the time of Lord
Mans-
field, who was the most eminent of all exponents of the latter
method, there have not been wanting many distinguished lawyers
in both these schools. During the period following the war of
1914-18
there have been
a
number of developments of consider-
able importance, some
of
which
it
may be profitable to survey in
outline.
It
appears to the writer that the judges who have been
responsible for these have, particularly in the
last
ten years,
belonged predominantly to the school
of
Lord Mansfield. The
S
See
The
Conflict
of
Law
and
Commerce,
48
L.Q.R.,
p.
51.
LIBERAL
TRENDS
273
movement on the whole has therefore been liberal in outlook,
that
is
to say, it has tended to pursue that line which commends
itself to the business community.
I
shall attempt in the following
pages to indicate some of the outstanding developments in
several different branches of commercial law, but the space
at
my disposal will not enable me to cover more than part
of
the
ground.
The discussion of these trends involves some attempt to
appraise the work of contemporary judges, the majority
of
whom
are fortunately still with us, always
a
delicate and invidious
task. Certainly the judges of the period under review, whatever
may be said of their efforts in other directions, need not fear
comparison with their predecessors in the field of commercial
law. Almost all of those whose contribution has been outstanding
had, when
at
the bar, practised
in
the Commercial Court. This was
perhaps
to
be expected, but nevertheless reflects the high standard
of ability prevailing among the practitioners in that Court.
At the beginning of the period Lord Sumner
is
the predominant
figure. His influence was on the whole conservative, and his
outlook legalistic. His main impress upon the law had probably
been made before our period opens, but his mind
at
once acute and
powerful continued to play
a
dominating part in all commercial
appeals
to
the House of Lords for
a
number of years thereafter.
Nevertheless his conservatism was not ingrained, and he had, as
he once informed the present writer with some pride, been
a
great radical in his youth. This from time to time became
resurgent
in
his judgments, witness his powerful dissent from the
stupid and reactionary decision in
Rwssel
v.
Russel,
and instances
are not wanting in the domain of commercial law. Scrutton,
L.J.,
who had perhaps more of the genius of the common law,
had
a
less disciplined mind, and his judicial career can only be
described
as
wayward.% Nurtured like Lord Sumner in the strictest
school of Cobden, his quick intelligence observed not without
spasms of sympathy
a
new world drawing away from the old
philosophy. He lacked, however, the patience and mental
discipline, ever thoroughly to adjust his outlook, and there
is
accordingly in his judicial lifework a lack of that homogeneity
which, for example, so magnificently characterises Justice
0.
W.
Holmes. Lord Atkin, for
so
many years the colleague of Scrutton,
L.J.,
in the Court
of
Appeal, possesses just that extra power of
adjustment to the requirements of his age, and with his appoint-
*
Pace Professor
Karl
Llewellyn whose eulogy of Scrutton,
L.J.,
in
xxxvi
Colombia
Law
R~Ew.
p.
669.
sub.
tit.
Warranties
of
Quality and Society the
present writer cannot altogether accept. great as is
his
admiration for the
best
work
of
the learned Lord Justice.
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