REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb01141.x |
| Date | 01 January 1967 |
| Published date | 01 January 1967 |
REVIEWS
THE
WORKER
AND
THE
LAW. First edition.
By
PROFESSOR
K.
W.
WEDDEBBURN,
M.A.,
U.B.
[London: Penguin
Books.
1965.
868
pp.
(including indices).
7s.
6d. net; London: MacGibbon
and Kee. 1966. (Revised edition).
860
pp.
(including
indices).
42s.
net.]
How
is
one
to
approach
a
book of this kind?
Is
it to
be
regarded solely
as
an intelligent layman’s primer but of little interest to the specialist lawyer,
or
are
we to apply to it the same canons of criticism
as
would be applied
to
a
work specifically designed for the lawyer? The answer with Professor
Wedderburn’s new book is that
it
challenges the reviewer to judge it by
the more severe canons of criticism, for, despite the author’s modest claim
in
his Preface that “the book is written both for the general reader and for
the student of
our
social and legal system,” this book is richer
in
the detailed
core of industrial law than many a more conventional work. A book
that
contains over eight pages of
“
selected bibliography
”
and in addition statute,
case and statute indices is much more,
to
quote the author’s Preface again,
than
a
“general guide to the impact of law on the field of employment.”
There
is
no doubt that Professor Wedderburn’s book will be compulsory
reading for
all
students of industrial law.
I
say
“
industrial law
”
rather than
“law of employment” advisedly since there are few, if any, topics in the
established works on industrial law
that
Professor Wedderburn has not
touched on.
A
particularly valuable aspect of this book is the abundance
of
source material and
of
citation of cases reported only in
The
Times,
The
Buurdian,
Current
Law,
etc. The critical account of the Trade Disputa
Bill
is
fascinating, though controversial, now
that
the Trade Disputes Act
1966
has been enacted in the same wording
as
the Bill analysed by Professor
Wedderburn.
The undoubted merits of this book for students of industrial law
are,
to
a
certain extent, overshadowed by two faults. The first is that footnoting
is
not complete. Quite frequently Professor Wedderburn tantalises with
a
quotation
(e.g.,
from
Lord
Denning in
the
section on
‘‘
Natural Justice and
the
Closed Shop”) without giving its source
at
all or, for example, draws
a
lightning sketch
of
the
nineteenth-century decisions on civil conspiracy in
8
section headed
“
The Change in Judges’ Policies
”
without giving references
to
the cases to enable
the
lawyer to evaluate for himself Professor Wedder-
burn’s view
that
“judges are men and like other men their decisions are
influenced
by
the
social background they have known and the unconscious
premises they acquire.” Again, in some, but not all, quotations from judg-
ments
(e.g.,
Lord Bramwell in
Bmith
v.
Baker
(1891))’
the reference where
given
is
to the commencing page of the report of the case and those who want
to
see
what
a
1,aw Lord actually said in the space in the middle where
Professor Wedderburn has put little dots must needs plough lengthily
through several pages of the relevant judgment.
The second fault of this book, like the
first,
is a product of its very merits.
Professor Wedderburn has not set out to write a dull factual account of
the law.
His
book is intended to stimulate thought and doubtless to provoke
controversy also. All praise to him for making .the reader think of this
subject as living and intensely interesting.
But
Professor Wedderburn
seems to regard his panoramic painting, colourful though
it
is, as of a
perpetual battlefield in which the knight in shining armour is almost always
the worker and the dragon is almost always the employer. If
I
understand
102
JAN.
1967
REVIEWS
108
the motif printed on the cover of the Penguin edition, it
is
symbolic of this
because
its
centre-piece appears to be “Employer
2).
Employee.” The lawyer
is perhaps not assisted by comments like the following from Professor
Wedderburn’s book: “What stands out in the speeches of the Law Lords
in
[Rookes
v.
Barnard]
is their determination to reach this result and their
plain satisfaction in doing
so.”
“
But before they do come [amendments of the
law
as
laid down in
Sparrow
v.
FaCey
Aviation
(1962-H.L.)]
many injured
workers will have been deprived of large sums by the new fashion in
restrictive judicial interpretation.”
Again, one feels that Professor Wedderburn could have displayed rather
more sympathy for the plaintiff in
Faramw
v.
FiLm
Artistes Asso&tior
[1964]
A.C.
926,
who was the victim of
a
rule of eligibility for membership
of
a
trade union, which rule Diplock
L.J.
described
as
“cruel and arbitrary;
cruel, for it takes no heed
of
penitence and expiation; arbitrary, for it draws
no distinction between grave crimes of moral turpitude and technical offences
involving no
men8
rea
or even those for which liability
is
purely vicarious
”
([1963] 2
Q.B.
627
at
p.
584).
Professor Wedderburn does not mention that
one of the offences of which Faramus had been convicted had been committed
under the German regime in Jersey during the last war and had resulted
in
his being incarcerated in Buchenwald concentration camp. Moreover,
it
was
the suffering in that incarceration that resulted in Faramus falsely signing
on his form of application for union membership that he had committed no
criminal offence, for his youthful offences had been obliterated from his
mind.
In his Preface, Professor Wedderburn argues that
“
technical law by
itself
is
useless,
at
best an arid game played by keen minds in court rooms
and academic ivory towers. To understand
its
significance we must look
at
its
historical and social setting, we must question what are the value and
policy judgments enshrined within the propositions of law.
. .
.”
One hopes, nevertheless, that Professor Wedderburn will not in future
editions allow the great keenness of mind shown in this book to become
blunted by too much consideration of “value and policy judgments.”
It
is
after
all
the primary function of lawyers to be experts on the rules of the
game. He who enters into the rough-and-tumble of play may not perhaps be
the best referee.
MICHAEL
J.
Goomm.
THE RESTRICTIVE
PRACTICES
COURT.
By
R.
B.
STEVENS
and
B.
S.
YAMEY.
[London: Weidenfeld and Nicolson.
1965.
xxi
and
256
and (index)
4
pp.
85s.
net.]
THE
work under review, written by a distinguished English economist and
American lawyer, is principally about the Restrictive Trade Practices Act
1956.
It
is,
in other words, about
a
vital aspect of the outstanding develop-
ment that has taken place in recent years in sociological jurisprudence,
namely, the emergence of
a
new corpus of law relating to the managed
economy.
It
is, in the reviewer’s opinion, the most interesting and intelligent
study of the new law
of
monopoly and competition that
has
yet appeared.
Essentially, Professor Yamey and Professor Stevens have discussed four
large themes. The first
is
the nature of the judicial process in English courts
with special reference to the justiciability of the issues presented by section
21
of the
1966
Act (Chaps.
3
and
6).
The second theme concerns the economics
of the criteria established by section
21
for the guidance of the Restrictive
Practices Court and the way in which the court had up to
1964
succeeded in
grappling with the economic question thus posed
in
legal form (Chaps.
4
and
6).
The third major discussion in the book centres on the scope
of
the registrability
of
agreements provision in section
6
(Chap.
8).
Finally,
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