Reviews
| Date | 01 January 1968 |
| Published date | 01 January 1968 |
| DOI | http://doi.org/10.1111/j.1468-2230.1968.tb01176.x |
REVIEWS
JURISPRUDENCE.
By
B.
A.
WORTLEY,
O.B.E.,
LL.M.
(Leeds),
LL.D.
(Manchester), Professor of Jurisprudence and International
Law
in
the Universit
of
Manchester.
[
Manchester University
1967.
478
and
xxi
pp.
68s.l
ALRIOUGH
this eagerly awaited book bears the stark title
Jurbprudence,
it
is no ordinary textbook
in
the fleld of study
known
in
the common law
world by that name, but rather the personal testament of Professor Wortley,
who has been
a
distinguished Professor of Jurisprudence and International
Law for more than twenty years.
It
is
all
the more refreshing on that
account, for it
is
the antithesis of the no-valuejudgment trend prevalent in
contemporary juristic thought. We are told that much of the text
ia
derived from articles published in numerous journals, English and foreign,
over the last thirty-flve years. Every now and then we seem also to detect
the more personal note of the lecturer. The choice of topics, and the
emphasis put on them, reflect the learned author‘s special interests in Inter-
national Law and the unification of appropriate branches of municipal
systems.
The introductory chapter
is
an incisive attack on anarchism
as
the
negation of law, based on an article published in 1947 and apparently stimu-
lated by recurrent manifestations of anarcho-syndicalism
in
industrial
disputes. Against this is
set
the idea
of
law
as
prediction. To exaggerate
the elements of order, rule and prediction in law might be taken by itself
to be
a
symptom of advancing
age,
but the balance
ia
restored in the latter
part of the book by insistence on values, especially justice. Incidentally in
the very flrst sentence-“
It
has been said that the law consists of expatiating
on the obvious and explaining the self-evident ”-surely
“
Jurisprudence
”
should be read for “Law.”
Part
2,
“Sources of Legal Rules,” lists the more important material
sources of law according to Pound, nnd then sketches the main kinds of
legal orders today, with
a
tribute to Wigmore.
A
reference to Vinogradoffs
Hiutorical Jurisprudence
might have been made here, but perhaps
that
work was thought to be out of date. Part
8,
“Types of Legal Rules,”
discusses what are more generally called the sources of law. We did not flnd
the chapter on Custom very clear-what book isP-on
the
question of general
custom
in
English law.
It
is said that general custom must be immemorial,
but then
it
is
said that constitutional custom (mainly the manner in which
Parliament legislates) is not necessarily immemorial. The only general non-
mercantile custom instanced
is
primogeniture before 1926, but this had long
been incorporated into the body
of
case law and statute law.
No
doubt
custom was the source of the law of primogeniture centuries
ago,
but in
what sense was primogeniture still custom In 1926? Perhaps we should
use
the word
“
custom
”
for the source or law-creating agency, and
“
customary
law’’ for the product. The chapter on Judicial Precedent (“The Custom of
the Courts”) contains useful short comparisons with Roman law, French law
and the United States Supreme Court. The discussion of precedent in the
House of Lords
is,
of course, modifled by Lord Gardiner’s practice statement
of July 1966, which is given in an Appendix. Less attention
is
paid to the
problem of finding the
ratio
deoidesdi,
it being suggested that this question
can usually be settled by looking
at
the pleadings.
An account
of
the law-making procedure of Parliament
is
followed by
a
Press and
New
Yor
f
:
Oceana Publications Inc.
95
96
THE
MODERN
LAW
REVIEW VOL.
81
chapter criticising Austin’s theory of sovercipty. One weakness of Austin’s
command theory is shown to be the subjective nature of “pain”
or
“evil.”
Professor Wortley regards States as bcing limited by International Law.
So
by International Law they are, but
is
this doctrine accepted by English
law
as
limiting the powers
of
Parliament?
If
so,
how and when did this
acceptance take place? With reEard to English law, the statement (p.
180)
that the sovereign incurs litibility under the Crown Proceedings Act
1947
is
not true if the sovereign is Parliament-this is
a
confusion between two
different meanings
of
“sovereign.”
An unusually large proportion
of
the
book
is
devoted to topics falling
broadly under the hcading of International Law; indeed, two parts,
”
Types
of
Legal Orders
”
nnd
‘‘
Fundamental Values and their Protection by Law
:
Human Rights,” take up nearly half the book. The supremacy of Inter-
national Law mny come-probably must eomcevcntually, but that
can
only
be
when it is recognised by municipal legal systems, which between them
created modern International
IAW.
The process
is
something like the reverse
of the changed relation between Parliament and the independent members
of
the Commonwealth. “hot supremacy cannot be demonstrated
by
referring
to
International Law itself, nor do
I
think that
the
Nuremburg trials can
be
relied on
aa
an authority for this doctrine.
It
is
probably my fault-having
been brought up on those anarchists. Hall and Lawrence
(cf.
p. !B)-that
I
am not convinced by the eloquent historical argument on “International
Law as a Basis of World Order” (Chap.
6).
Our
courts do not even
reeopise treaties
as
a
mum
of
English law.
Lord
Gardiner has expressed
the same opinion in the House
of
Lords
an
his predecessor. Lord Kilmuir,
that if Britain joins the European Economic Community the legal cone
quences will derive their validity from an Act of Parliament, which
cannot
bind itself
for
the future. The section in Chapter
9,
“Devices
to
prevent
clashes between
Legal
Orders”, shows how far
there
is
to
go
before the
supremacy of International
Law
over States is anythlng like the supremacy of
Parliament and the courts over local authorities. The tardy acceptance by
the United Kingdom
of
the jurisdiction
of
the European Court of Human
Rights (Chap. 15) was not only voluntary but also temporary.
Professor Wortley has many valuable thing8
to
say which -Mot be
enumerated in
a
review.
It
is interesting
to
see
such prominence given
to
Sir Thomas Erskine Holland, who-like Professor Wortley-warp equally
eminent in Jurisprudence and in International
Law.
Holland’s
Jurirpdencs
was the staple fare in my undergraduate days, though Brierly’s description
of it
forty
years
ago
as
“the most suceesaful book on Jurisprudence ever
written” must sound strange to
the
modern reader. Professor Wortley’s
chapters on Human Rights deserve
to
be,
and will be, widely read, and it
is
fitting that they should form
a
promhent feature of this
book.
Many law
teachers,
as
well
as
students, will share the learned author’s enthusiasm
for
the subject. My own private view
is
that
the battle has bem largely
won, and that the time has now come when more attention should be paid
to duties. A world in which everyone insisted on his rights, but paid little
regard to his duties, would not be
a
very pleasant place
to
live
in.
The
mord
is
pointed by the opening chapters on order and rules and the concluding
chapters on Justice. The moral might also have been pointed by reference
to
Hohfeld’s analysis of legal relations, but the discussion of this
is
scarcely
helped by the “short sally into the field of Aristotelian logic.”
The best part of the book in my opinion
is
the last part on Justice and
Equity. Here
a
good deal
is
owed, understandably,
to
Aristotle and Aquinas,
but we do not depreciate the merits
of
Klemperer
11
we distribute some
of
our
praise to Beethoven. Here is the clearest and soundat interpretation
we know of Arlstotie’s theory of justice and its application to modern
society. Professor Wortley, for the benefit of those who are not privileged
to know him, identifies himself with the idealist school, and quotes Lord
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