REVIEWS
| Published date | 01 January 1971 |
| Date | 01 January 1971 |
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02317.x |
REVIEWS
ENGLISH
AND
AMERICAN JUDGES
AS
LAWMAKERS.
By
L.
L.
JAFFE.
VENTURING
TO
DO
JUSTICE.
By
R.
E.
KEETON.
[Harvard Univer-
IT
is
a
delicate task to read lectures to
a
foreign audience on the merits and
faults of their own legal system in comparison with those of the lecturer,
but when the lecturer is Professor Jaffe it need hardly be said that the
task is discharged with sympathy, insight and good temper. In general
he pleads for English judges to take
a
more active view of their role,
and states that grandiose bursts
of
judicial lawmaking
”
are unknown
in England
(p.
4).
To the Englishman who may be tempted to respond
by remarking that the Supreme Court of the United States, which notoriously
indulges in such bursts, appears to have become one
of
the most divisive
institutions in American society, Professor Jaffe concedes in the most disarm-
ing way that all is not well with the successors
of
Marshall and Holmes.
Under the stress of the professional liberals who litigate civil rights cases
with
a
persistence and solemnity which remind
us
that Puritanism is not
a dead force
in
the United States, the court has gone
a
long way towards
ensuring that
‘I
the obsessions of
a
small infatuated group threaten to
become the law of
the
land.” For
a
variety
of
reasons, not least, as
Professor Jaffe recognises, because it is
a
private law rather than
a
public law court, the House of Lords
is
unlikely to succumb to this
error. But other apparent deficiencies in its performance are discussed
in
a
frank but kindly way.
While conceding the value and interest
of
these criticisms, the reader
may feel that justice has not been done to the magnitude of the English
judicial achievement in the past decade in adapting the common law
to the needs
of
modern society.
It
is
particularly surprising to find
no mention of the
Hedley Byrwe
case, which was surely the most remarkable
advance in torts since
Donoghue
v.
Stevenson
itself.
It
will be recalled
that
Hedley Byrne
led one (Canadian) authority on torts to complain
of
the growing “Americanisation of English law.”
Nor
is there any mention
of
Indyka
v.
Indyka,
a
striking example of judicial legislation in the field
of conflicts.
Conzvay
v.
Rimmer
is briefly noted, but not the epoch-making
decision, reported in the same month, of
Padfield
v.
iMiniater
of
Agriculture.
Another distinguished American academic who is concerned about the
dual role of courts and legislatures is Professor
R.
E.
Keeton.
He
urges
a
more active and imaginative role for each, in particular in the spheres
of products liability and traffic accidents. The Englisli reader will And
this volume interesting, but unusual and not
as
easy to read
as
Professor
Jaffe’s smoothly flowing lectures. Tlie discussion is at
a
high level of
generality, and if one lacks detailed familiarity with the cases relied on
as
authorities, it is not always easy to follow the arguments. But the
volume
is
an impressive example
of
a
genre of legal writing at which
Americans are outstandingly good
-
the monograph,
or
extended essay
on
some particular field
or
topic. Tlie English are better than the Americans
at
writing students’ textbooks
:
but the Americans are better than the
English at writing monographs.
The starting-point of the exposition is the fact that since
1968
courts
of last resort
in
the
U.S.A.
have handed down a notably large number
of over-ruling decisions in tort cases. The general impression
is
of candid,
[Oxford: Clarendon Press.
1969. 116
pp.
25s.
net.]
sity
Press.
1969. 183
pp.
66s.
net.]
109
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