Lord Atkin's Judicial Attitudes and Their Illustration in Commercial Law and Contract

Publication Date01 Jul 1964
AuthorR. W. Harding.
DOIhttp://doi.org/10.1111/j.1468-2230.1964.tb01038.x
LORD ATKIN’S JUDICIAL ATTITUDES AND
THEIR ILLUSTRATION IN COMME’RCIAL
LAW AND CONTRACT
INTRODUCTION
IN
the United States it is the accepted practice for the life and work
of eminent judges to be assessed by legal critics soon after their
deaths,
or
sometimes even while they are still alive. But in
England writers are wary of evaluating the contribution of a judge
to the development of the law of the society of his times. The
reason is not difficult to find: in the United States it is frankly
admitted that there is a large area of legal decision which is justifi-
ably influenced by the temperament and political opinions of the
individual judge; while in this country the development of the law
is still hindered by the touching but invidious fiction that law is
declared, not made, by judges. Certainly the room for manoeuvre
is much smaller and much less obvious than under the Federal
Constitution
of
the United States, but room for manoeuvre there
nonetheless is. Though most people involved in the legal system
must presumably admit this to themselves, and though
it
must
follow that
our
understanding of how the legal system really works
is necessarily incomplete until the individual work
of
leading judges
is carefully analysed, still we have a residual reluctance to acknow-
ledge this overtly by partially explaining decisions in terms of what
sort of person the judge concerned is.
It
would, of course, be inap-
propriate to overstress this angle;
it
only has any validity when the
precedents leave room for manoeuvre, and even then it will seldom
reveal anything startling. But
it
is
an
aspect of the legal system
that we should remind ourselves of occasionally. That we do not
do
so
frequently enough would seem to be borne out by the fact
that, twenty years after his death, there has still not been pub-
lished a comprehensive evaluation of the work of Lord Atkin of
Aberdovey, one of the few truly great common lawyers of this
century.
It
will therefore be instructive to have a glance at his
judicial attitudes, for we shall find a coherent and broad legal
philosophy binding together his work. Even
in
such apparently
unpromising areas as Commercial Law and Contract, clear evidence
of his particular approach can easily be found, emphasising that
such decisions are something more than mere empirical improvisa-
tions. Perhaps more than ever this needs to be emphasised today,
for the ever-increasing volume of law and legal materials means
that student and practitioner alike tend to see a judge’s work as a
series of unrelated cases reaching his ken as
a
paragraph here and
a
434

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