Reviews
| Published date | 01 July 1984 |
| Date | 01 July 1984 |
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01662.x |
REVIEWS
A TREATISE FOR
OUR
TIMES?
THE LAW
OF
TORTS. 6th edition. By
JOHN
G.
FLEMING. [The Law
THE LAW
OF
TORTS. 7th edition. By
H.
STREET. [Butterworths
1983.
FOR
Plucknett, the legal treatise was peculiarly the creation
of
the nineteenth
century. It signified the death of special pleading and the forms
of
action,
in Plucknett’s own words “the triumph
of
substance over form.”’ Other
factors no doubt contributed to its rise. The Victorian pride in scientific
method permeated all the social sciences, manifested as much in Spencer’s
enthusiasm for scientific and efficient principles
of
political economy as in
Selborne’s demand for “a large, wide, liberal, and scientific basis” for the
law.2 The struggle
of
the professions to establish their status and autonomy
led inevitably to claims of technical .professional expertise and, in the case
of
the legal profession, to a prolonged dispute over the character of legal
education: practical
or
a~ademic?~ This dispute was reflected in the texts.
Simpson‘ distinguishes two types
of
treatise: the academic, where the author
consciously selects and where necessary remoulds; and the practitioner’s
treatise, offering a comprehensive treatment and synthesis
of
the decided
cases. The former he sees as rooted in reason, the latter in duthority. The
spirit which infused the celebrated aphorism that the object
of
three years
at law school was not knowledge but acquisition
of
the power of legal
reasoning: would not necessarily recommend itself to a profession con-
cerned with law as a hierarchical and uncodified systzm
of
precedent. But
the dichotomy might equally be explained in terms
of
a struggle for status
between two emerging professions: on the one hand the academic, concerned
to establish himself as a scholar in the tradition of Austin; on the other the
legal profession with the judiciary as its sheet anchor. As Simpson points
out, the latter inevitably has the upper hand. “The text writer, unless he
himself is a judge, possesses as an individual
no
authority derived from
office. Consequently his views are important only if they are unoriginal.”6
In England, where the two professions are far more sharply divided than in
America, this generally accepted perception
of
the author’s role has had a
sobering effect on the literature.
The first English tort treatise came late on the scene. The author, Sir
Frederick Pollock, who had previously published a treatise on contract,
claimed that this was natural. “It is not surprising that a complete theory
of
Book
Co.
Ltd.
1983.
€20.00,
soft covers.]
€15.95,
soft covers.]
Torts is yet to seek, for the subject is altogether modern
:.
.
The really
I
A Concise History
of
English Law
(5th ed.,
1956), p.289.
In
a well-known debate on legal education reported at H.C.Deb.,
Ser.
3,
Vol.
CCIX,
col.
1225
(March
1.
1872)
and cited by R. Cocks,
Foundariom
of
rhe Modern Bar
(1983),
p.177.
See further Cocks,
op.
cit.,
pp.34-51
and
177-194;
B.
Abel Smith and R. Stevens,
Lawyers and the Courts
(1967). pp.63-76.
‘
“Rise and Fall of the Legal ‘Treatise: Legal Principles and the Forms
of
Legal
Literature.’
(1981) 48
Univ.
of
Chicago L.R.
632.
Dean Ames
of
Harvard Law School cited
G.
Edward White,
Tort Law in America
(1980), p.29.
Op.
cir.
note
4. p.638.
487
488
THE MODERN LAW REVIEW
[Vol.
47
scientific treatment of principles begins only with the decisions
of
the last
fifty
year^."^
White notes a correspondence in America.’
“As
late as the
first half of the nineteenth century, ‘torts’ was not an autonomous branch of
law at all but merely
.
.
.
a collection of unrelated
writ^."^
Clearly there was
an urgent need for synthesis if substance was to triumph over form. And
though Holmes wrote in 1871 that “Torts is not a proper subject for
a
law
book,”’” White attributes to Holmes himself the principle which was to
provide the basis for synthesis and ultimately unification, namely “the
isolation of negligence as a comprehensive principle
of
tort law.””
The
Common
Law,
in which Holmes
so
brilliantly exposed his thesis that fault
was the compelling reason to shift loss from victim to defendant,’* was
published in 1881. Pollock
on
Torts
was dedicated to Holmes with whom
the author was in correspondence. The work was- an academic treatise,
described by its author as “a book
of
principles if it is anything.”I3 It was
also scholarly. In the introductions to his two treatises, Pollock acknow-
ledged his debt to Willes who had taught him “to taste the Year Books” and
to Bryce who had led him to Savigny. By the third page
of
his
Torts
he
had
arrived at Ulpian. Holdsworth stressed Pollock’s breadth of learning. His
treatises were the
“first books in which the principles
of
these branches of law were
treated in a manner which was both scientific and literary
.
. .
[and]
showed students and practitioners that English law was no mere
collection of precedents and statutes, but a system of principles and
rules which were logically coherent, and yet eminently practical, because
they were the long experience
’of
the race recorded
in
cases decided
from the first
of
the Year Books to modern
time^."'^
Lord Wright later described Pollock
on
Torts
as “a model
of
comprehen-
siveness and analytical arrangement.”1S The academic and scholarly bias is
reflected in Pollock’s classification: the first section is devoted to a discussion
of
the nature and historical development of torts, the second to general
principles. In contrast, practitioners’ texts, like Underhill16
or
Clerk and
Lind~ell’~ tend to approach the matter from a more practical standpoint of
injury, damage, reparation, discharge and parties. General principles may
be-as in the former work-passed over.
The classic twentieth-century treatises were
riot
at the outset primarily
practitioners’ texts. Winfield wrote for the student.’” But as with Pollock,
his fascination with classification,” his belief in general principles of liability2”
The first American treatise was Hilliard, The Law
of
Tom (1859) and the first casebook
Ames, A Selection
of
Cases
on
the Law
of
Torts (1874). According
to
Holdsworth, A
History
of
English Law,
Vol.
12, p.399, the first English text was anonymous: The Law
of
Actions on the Case for Torts and Wrongs; being a Methodical Collection
of
ull
the Cases
concerning such Acriotis (1720).
’
Pollock, Law
of
Torts (1887). p.vii.
Tort Law
in
America, p.8.
Book Review (1871)
5
Am.L.Rev. 340, 341.
Op.
cit., p.13.
l2
The Common Law (1923 ed.), p.50.
I’
Cited by Lord Wright at (1937)
53
L.Q.R.
151,
164.
I‘
Some Makers
of
English Law (1938), pp.285-286.
Is
LOC. cit., note 13.
l6
A.
Underhill, Law of Torts. In the Preface to the
8th
ed. (1905) the author describes
his text as a student’s treatise aiming at the inculcation
of
principle.
I’
Clerk and Lindsell, The Law
of
Torts, first published 1889, now 15th ed. (1982).
In
Textbook
of
the Law of Tort, Preface
to
the
1st
ed. (1937).
IY
See particularly The Province of the Law
of
Tort (1931).
Ibid. p.33.
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