REVIEWS
| Published date | 01 September 1976 |
| Date | 01 September 1976 |
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01474.x |
REVIEWS
ACCESS
TO
THE
LAW:
A
STUDY CONDUCTED
FOR
THE
LAW REFORM
COMMISSION
OF
CANADA,
By
M.
L.
FRIEDLAND.
[Carswell/
Methuen. Toronto, 1975.
i-ix,
1-198.
Can.
$10.95.1
THIS
study for the Law Reform Commission
of
Canada raises more fundamental
questions than
a
study of access to legal services. The first raises the vital issue
of whether people can arrive at
a
knowledge and understanding of the law for
themselves, rather than having to use lawyers
or
lawyer-substitutes as hand-
maidens to the law. If the law is not accessible itself, is this because it is
physically not available (too expensive, no libraries)
or
too complicated without
some education and skill in handling legal materials? One of the experiments
camed out by this lawyer/librarian team (Professor Friedland was assisted by
Peter and Linda Jewett) was .to test lay volunteers’ ability to answer
a
legal
question involving
a
paperchase through statutes and amending statutes. The
authors comment that people might find it confusing to use the index to
the
Revised Statutes
of
Canada, for example apparently the only item under civil
liberties is to the War Measures Act! This book also contains the results
of their attempts to discover where people went to get information about
a
range of everyday and important legal problems, and using only
a
small number
of agencies, the researchers tested the agencies’ ability to handle those questions.
They concluded that in many respects the accuracy and the time taken to obtain
the information from these agencies left
a
lot to be desired. Indeed, they state
that there were
a
high number of incorrect and incomplete responses given,
with
a
great deal
of
inconsistency
in
the answers obtained from the same
sources to the same questions on different occasions. Out of
100
sources tested
on one question,
60
gave different answers! An interesting-and for lawyers
salutary-finding was that information centres and other sources handled the
question on landlord and tenant
as
well as lawyers in private practice. Some of
their findings are useful pointers, but the smallness of the samples must be
borne in mind.
The underlying philosophy and the questions it sets out to answer make this
book an important one. It
is
however somewhat disappointing in its concluding
chapter, Providing better access to the law, but this may be because some of
the problems in providing improved access to the law and equality of access
to the law are
so
intractable. The authors recommend public education
programmes, government inquiry offices (they are critical
of
the quality of
information given out by government offices), community information centres
like English citizens’ advice bureaux (which seem in overseas eyes to be
a
great
deal better and more desirable than they seem to many here), improved,
consumer-oriented services in public libraries and a layman’s encyclopaedia of
the law. ROSALIND
BROOKE
PHILOSOPHY
OF
LAW.
By
M.
P.
GOLDING.
[Englewood
Cliffs,
New
Jcrsey: Prentice-Hall. 1975.
x
and 133
pp.
(inc.
index). Hardback
f5.20. Paperback E255.1
THE
explicit aim
of
this emincntly readable little book
is
“to introduce the
student to legal philosophy and to stimulate his
own
thinking.’’ Alongside this
runs an implicit aim, namely, to convincc the student “of the intellectual and
practical significance of [lcgal philosophy].” There can bc no denying the need
for such
a
book.
For,
students frequently find it difficult to “get into” lcgal
phiIosophy; and, although those who succeed in
“
getting into
”
the subject
may be perfectly well at case in discussing its internal controversies, they may
be quite at
a
loss to identify either the intellectual
or
the practical significance
of
the subject. Hopefully, Professor Golding’s book will go some way towards
remedying this unhappy state of affairs.
603
GO4
THE
MODERN LAW REVIEW
[Vol.
39
The book concentrates on four areas, namely, the nature of law, the Mill/
Devlin/Hart debate, punishment, and the relationship between procedural
justice and dispute settling. The nature of law
is
self-selecting;
as
the author
says, it is “the foremost problem of legal philosophy.”
The
second and third
topics are on three counts well chosen:
(1)
they run together both analytical and ethical questions;
(2)
they are stimulating; and
(3)
they
are
of obvious intellectual and practical significance.
With interest in substantive justice running at such
a
high level at present, it
comes
as
something of
a
surprise to see the final topic throwing the spotlight
on
procedural justice. Nevertheless, the problems raised by procedural justice,
especially those concerning institutional design, provide
a
splendid context for
indicating the relationship between legal philosophy and sociology of law.
Unfortunately the author does no more than hint at this relationship. Similarly,
the author relies on no more than
a
gentle hint to draw out
the
relationship
between the question of the nature of law and the question of disobcdience-
civil
or
not
so
civil-to “law.” If the sceptics
are
to be persuaded that the
controversies surrounding the nature of law are something more than highly
esoteric verbal-or conceptual-quibbles, then this
sort
of relationship should
be heavily underscored. After all,
if
“
the foremost problem
”
of the discipline
is seen
as
being no more than
a
verbal-or conceptual-challenge, engineered
by academics for academic amusement, then it is small consolation that the
peripheral issues of the subject are acknowledged to be of some significance.
The discussion of the nature of law falls into two chapters. The first sets out
the problems that lie behind the question “What is law?
”
Although the
section on the validity of laws is rather compressed, the chapter
as
a
whole
is refreshingly
“
introductory.” Not too many assumptions are made about
the reader’s familiarity with the language of analytical inquiry, and there is
a
genuine attempt to lay bare the issues that hide away under that darkest of
questions “What is the nature of law?
”
The second chapter follows
a
well-
trodden path: it provides
a
“nutshell” account of the theories of Austin,
Aquinas, Holmes, Kelsen, Hart, Fuller, and Selmick (in that order).
Undoubtedly tradition can be argued in favour of this sort of pilgrimage, but I
would have been
a
great deal happier to have seen these pages continuing with
the good work of the first chapter, that is, with a patient unravelling of the
issues. My objection to tho “nutshell
”
approach is not that such an approach
can never serve
a
purpose, but that it does not serve the avowed aims of
this
particular book. The difficulty with the
“
nutshell
”
approach is that it
emphasises the author rather than the idea.
If
the book is to set
a
stimulating
introductory framework then
I
suggest that the key points of reference should
be ideas and not names of people. Moreover, the emphasis on authors rather
than ideas provides an atmosphere which is conducive to gratuitous, and indeed
obscuring, name-dropping. Thus at page
29
we read:
“.
.
.
Austin comes very
close to revealing himself
as
a
crypto-idealist, to use the late Felix Cohen’s
term
.
.
.
and Austin has transformed his legal positivism into an
ideology,
as
Professor Noberto Bobbio would put it,” Perhaps
this
is
a
harsh example, but
it demonstrates the way in which tricky ideas can
be
sorely under-exposed.
Similarly,
1
would question the
wisdom
of
Professor
Golding’s decision to
present the various theories against the backcloth of legal positivism and
natural law. Once again tradition can be argued in fkvour of this
sort
of
exposition but it has its drawbacks, in particular, its tendency to draw the
reader away from the idea and instead to focus his attention
on
the problem
of
classifying the
author
of the idea.
I
fear that the student may well over-
estimate the importance of classification, may fail to appreciate tho extent of
the ambiguity of the labels, and may find it extremely perplexing to see
Hart
first described
as
“
a
positivist of sorts
”
(p.
33)
and then
as
’‘
a
good positivist
’*
(p,
49).
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