REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02455.x |
| Published date | 01 November 1977 |
| Date | 01 November 1977 |
REVIEWS
THE
JUDICIAL
PROCESS: An
Introductory Analysis of the Courts
of
the United States, England and France. Third edition Revised
and Enlarged. By
HENRY
J.
ABRAHAM.
[Oxford University Press,
Inc. 1975. xii and 543 pp. (incl. 163 pp.
of
appendices, biblio-
graphies and index).
No
price stated (paperback).]
THE
first edition of this book was welcomed in 1962 as “a superb opening
assignment for the beginning political science student
”
because it
“
introduced
him to difficult legal concepts in terms which are readily understandable by non-
technical students of American public law”
(D.
Fellman). In its American
environment the work is traditional in approach and yet has the virtues of
clarity and brevity and not least is relatively inexpensive in paperback. However,
in travelling, many of these advantages are lost. It is not
a
work infused with
the debunking spirit of American realism, nor is it an enlightening example
of the politically oriented approach
to
the behaviour of the courts and officials,
still less is it an introduction to jurimetrics. Although the emphasis is on the
courts and on the United States Supreme Court in particular, one would not
look here for the scalogram analysis of judicial decisions. Yet the English
student will find that it concludes without discussion that
“stare decisis
is
a
principle
of
policy and not a mechanical formula of adherence to the latest
decision
”
and that the
ratio decidendi
refers to
“
the essence, the vitals, the
necessary legal and constitutional core
of
the decision” and that public law
itself
“
deals with the definition, regulation and enforcement of rights in those
cases where the state is viewed as the subject of the right or the object of the
duty, including criminal law and criminal procedure,” whereas constitutional
law is seen as “a branch that determines the political organisation of
a
state and its powers while also setting certain substantive and procedural limit-
ations on the exercise of governing power.” The approach to such concepts
dictates the character of the work and illustrates much that is taken as self-
evident in its country of origin. However, there is no extensive examination of
these and British readers, who may from the title think first
of
Cardozo, should
be warned that this is
a
very different approach.
Instead, there is
a
discussion of the selection and tenure of the judges,
the experience and background of Supreme Court judges and American juries,
including the surviving Grand Juries, leading
to
an introduction to criminal
procedure,
so
that the value of the book is its painstaking account
of
the
American courts both Federal and State. We may learn
of
the mysteries of the
federal legislative courts and the federal constitutional courts from which they
must be distinguished, the former owing their origin to Article
I11
of the
Constitution (the Judiciary Article) and the latter to Article
I
which creates
the legislative power, thus giving them administrative and legislative functions
as well as judicial. We learn too of the federal district courts and the (Circuit)
Courts of Appeals and of the hierarchy of courts duplicated within the States
which seems
so
essential to a federal structure if one limits one’s vision to the
United States.
There are other books on the United States Supreme Court readily available
on this side of the Atlantic but Professor Abraham’s introduction is not con-
fined to that court and his account is thorough, not avoiding the problems of
jurisdiction-both those entrenched in the Constitution and those developed
from the variety of writs inherited from our common legal history but often
transformed in the New World. Yet it shows too that the jurisdiction of the
Supreme Court, though limited, is not
so
confined that it may not direct
policy in matters hotly debated, as at present with the issue of capital punish-
ment
or
social welfare, though at one time it needed a strong President in
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