REVIEWS
| Published date | 01 March 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01328.x |
| Date | 01 March 1972 |
REV1
E
W
S
CONSTITUTIONAL
LAW.
BY
S.
A.
DE
SMITH. [London: Penguin
CONSTITUTIONAL
THEORY.
BY
G. MARSHALL.
[Oxford
:
Clarendon
MAGNA
CARTA.
BY
ANNE
PALLISER
[Oxford: Clarendon Press.
1971.
Is
his preface to the posthumous edition of Maitland’s
Constitutional
Ifwtory
H.
A.
L. Fisher wrote that the volume showed “that the profound student
was
also a brilliant populariser of knowledge,” and that the reader would
‘‘admire the union of hligh speculative power with exact and comprehensive
knowledge of detail.” Over sixty years later this reviewer can find no better
way of introducing Professor de Smith’s new book than by repeating the
praises which Fisher lavished upon Maitland. For this is definitely an
occasion for congratulations-to Professor
H.
A. Street, the General Editor
of PengGn’s Foundations of Law series for having persuaded Professor de
Smith to publish,
at
length and for the first time, hk views on
a
subject which
he has been teaching for over twenty years; to Penguin books for having
produced at an astonishingly cheap price
a
work of
700
pages which would
bring distinction to the list of the oldest of university presses; and to the
Cambridge Law Faculty for having elected into the Downing Professorship
one whose book can safely be put on the same shelf
as
that of the greatest
of his predecessors. Nobody who had read Professor de Smith’s
Judicial
Review
of
Administrative
Acfon
could doubt the depth of his scholarship,
and those who had also read his Inaugural lecture, and some
of
his writings
scattered in the pages
of
periodicals, knew that he could, if he wished, write
with a lively pen. The present book combines the learning of
a
great scholar
with the skill in presentation of the experienced teacher. There are, too,
particularly in the chapter on Commonwealth Affairs,
a
few deft touches based
on practical experience, which give flesh
to
the bare bones of rule and con-
vention.
The book is divided into seven Parts, which contain
as
complete an account
of the legal and political aspects of the British Constktution
as
can be hoped
for
within one volume. After General Foundations (highly stimulating for
those interested in such topics as Parliamentary Sovereignty), there follow
Parto
on the Executive, Justice, Police and Local Government. (Even Pro-
fessor de Smith has difficulty
in
making Local Government comprehensible
and interesting.) Administrative Law is postponed (perhaps rather awk-
wardly) until after the fifth Part on Civil Rights and Freedoms but,
as
is only
to be expected, the mass of material, legal and extra-legal,
is
summarised
with great skill and clarity. An Appendix summarises the complex provisions
of
the
1971
Immtgration
Bi1l.l
The Clarendon Law Series, which
is
under the general editorship
of
Professor
H.
L.
A.
Hart, has always given the impression that it is a little
uncertain about its aims. Some of its volumes have been miniature text-
books of varying levels
of
achievement (Wade, Atiyah, Nicholas, Fitzgerald,
Moore; others though also (sometimes) entitled
“
Introduction
”
have pro-
vided eclectic and occasionally bfiliant surveys of the subject at
a
level
Books
Ltd. 1971.
712
pp.
E1.50.1
Press.
1971.
238
pp.
E1.25.1
133
pp.
E2-00.1
1
One
small
error in Chapter
25
is that the National Insurance Commivsioners
are incorrectly described
a8
civil servants.
198
MAR.
1972
REVIEWS
199
inore appropriate to the graduate student than to the beginner (Lawson,
Fleming); others again have been scholarly monographs on particular sub-
jects (Sawer, Cross, and, above all, Professor Hart’s own profoundly stiniu-
lating book). Mr. Marshall’s contribution has some of the characteristics of
each of the three classes, and
it
is therefore not clear just what readers the
publishers, editor and author have in mind. The Preface is plain enough
:
the
author
states
that he has tried “to sketch out some of the basic questions
that face students
of
constitutional government,” but stresses that
“
this
is
a
polithcal saientist’s and not
a
lawyer’s book.” This is perfectly acceptable,
but
a
few pages later there is an Introduction, which paints
a
very different
and more complex picture. (This procedure
is
characteristic of
Mr.
Marshall;
his mode of presentation
is
diiffident, hesitant, and deprecatory. Hardly any
proposition of substance is advanced without being almost immediately quali-
fied
or
contradicted.)
So
the reader is told that the title
“
nzight
perhap
be
an apt descniption” of the first
1,000
pages of
a
five-volume treatiie on
constitutional law which Sir Ivor Jennings once thought of writing some
thirty years ago but dd not
in
fact produce. The reader is also told that
“possibly
its
scope could be
roughly
defined as
a
collection of general ideas
about the legislative, executive, and judicial branches of government.
Vuriozis
sorts
of generality may be in issue
.
.
.”
(iitalics supplied). Even the most
sophisticated reader may be confused.
Another example can be found on page
218
where Mr. Marshall says that
“two conclusions do not follow” from
a
certain proposition. Surely this
simple sentence should be put in the atlirmathe, and the following conclusions
in the negative? Again, at the end of Chapter
5
on the Separation of Powers,
there
is
a
page
(124)
with the unattractive cross-heading, “the Disutility of
the
‘
Separation
’
Concept,” and a sentence which states that
“
the notion
”
suffers from four
“
disabling deficiencies.” (Can there be an
“
enabling
deficiency,” and if
so,
what would it look like?) In the last sentence “the
principle
”
(kt has previously been
a
“
concept
”
or
“
notion
”)
is said
to
be
“infected with
so
much imprecision and inconsistency that it may be counted
little more than
a
jumbled portmanteau of arguments.” How can
a
principle
(notion,
or
concept) also be
a
portmanteau, whether of jumbled arguments
or of anything else? A portmanteau is “an oblong, stiff leather case,
which opens like
a
book, with hinges in the middle of the back”
(O.E.D.).
There are more minor errors of presentation
or
style which the legal
reader
will
find irritating.
It
is
no doubt too late to expect the
Delegates of the Clarendon Press to abandon their practice of placing
a
comma after round, but before square, brackets
:
their motto is “Dominus
Illuminatio Mea,” and they are not obliged
to
accept
as
authoritative the
mode of citation adopted by the Incorporated Council of Law Reporting, but
are entitled to do their
own
thing. But
at
least one expects consistency
:
if
it
is annoying to find round brackets where there should be square (p.
88,
n.
l),
it is even more annoying two pages later (p.
90,
n.
4)
to find no
brackets
at
all. CertaGnly one expects that attention should be paid
to
the
change
of
practice in citing statutes which is now over five years old (see
Sir
NoEl
Hutton in
(1966) 82
L.Q.R.
24),
namely, that the comma which used
to precede the date has disappeared both retrospectively and prospectively.
The names or titles of three Oxford Lord Chancellors are mis-spelt (pp.
11,
78
and
SO).
If the ordinary reader, legal
or
lay, is unlikely to be misled by
the fact that the date ascribed to
Hmkins
v.
Bathercole
is wrong by a
century (p.
77,
n.
2),
he may well be confused because the Orange lady who
was
the
unsuccessful plaintiff in
Hmphries
v.
Connor
5s
described
as
the
defendant
(p.
162).
On
Duncan
v.
Jones
(p.
163)
the author seems to have
confused the meeting of May
1933
(which did cause disorder) with the meet-
ing
of
July
1934
(which did not cause disorder, but which
it
was reasonably
apprehended might do
so,
in view of the events of the previous year). This
error deprives of much of its force Mr. Marshall’s criticism of that much
criticised decision. But it is much pleasanter to turn to what is good in
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