Reviews
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb01025.x |
| Date | 01 March 1964 |
| Published date | 01 March 1964 |
REVIEWS
LAW
REFORM
NOW.
Edited by
GERALD GARDINER, Q.c.,
and
ANDREW
MARTIN,
PE.D.
[London
:
Victor Gollancz, Ltd.
1963.
287
pp.
30s. net.]
THIS
book is
a
successor to
The Reform of the
Law
edited by
Dr.
Glanville
Williams and published in
1951.
It
is
to be hoped that this new book spon-
sored by the Society of Labour Lawyers will not provoke the derogatory
comments that
so
unjustly greeted the earlier one. Of course, it must be
easy, in
a
book of less than
300
pages which contains scores of proposals for
law reform, to pick out some which are not fully worked out. But let these
critics devote their energies to defending the numerous existing
“
features
”
of
our
law identified in the book. To take a few at random: the ;E2
10s.
maximum maintenance for
a
child in magistrates’ courts proceedings
;
the
exclusion of many local authority registers from the local land charges regis-
ter; the Statute of Frauds Amendment .4ct, 1828, section
6;
the absence of
procedural rights for an alien threatened with deportation; the present state
of the law of hire purchase; the evidential privilege attaching to government
documents; the exclusion of conspiracy from the scope of the Obscene
Pub-
lications Act,
1969;
“Guilty But Insane.” Nor should
it
be held against the
book that occasionally the demand for reform is passionately expressed; it
makes a welcome change from the much more usual smug acceptance of what
we have which permeates
so
many speeches on and
off
the bench.
The new editors, Gerald Gardiner,
Q.c.,
and
Dr.
Andrew Martin, invited
an impressive list
of
specialists to contribute various chapters which mention
proposals for reform in the substantive departments of main law. However,
interesting as these are, the introductory chapter by the editors themselves on
the machinery of legal reform is perhaps the most important of all.
Mr.
Gardiner’s eleven years’ service on the Law Reform Committee convinced
him that the present machinery
for
law reform
is
inadequate. He advocates
the strengthening of the Lord Chancellor’s Office by the appointment of a
Vice-Chancellor of ministerial rank and of at least five full-time Law Com-
missioners who would be responsible for reviewing the law as
a
whole and
preparing legislative reforms. One has only to see how many worth-while
proposals of governmental committees have not been acted on to agree that
the present machinery is inadequate. If the next Government should be
Labour,
is
the Society of Labour Lawyers sufficiently powerful to bring about
these changes?
If
so,
the Government would not need to look beyond this
book’s editors to find the man to put in charge.
HARRY
STREET.
THE
LAWYER
IN
SOCIETY.
By
JAMES J. CAVANAUGR.
[New
York:
Philosophical Library Inc.
1963.
82
pp.
$3.00.1
THIS
essay, written for the Philosophical Library of New York, is in its
author’s words
“
one lawyer’s attempt to understand lawyers and to make
them understood by laymen” and, according to the blurb on the dust jacket
which may
or
may not be in the author’s own words, the title he has given
to his essay was chosen
“
for the purpose of emphasizing that
it
is the lawyer’s
constant cultivation of society which makes its values possible, just as it is
the earthworm’s constant cultivation of the soil which makes its fruits
possible.”
237
238
THE MODERN LAW REVIEW
VOL.
27
l’his admirable sirriile puts the lawyer in his proper place; you cannot have
society without lawyers whether you like them
or
not. But Mr. Cavanaugh
is not content to leave it at that; he has made a reasoned-and very brilliantly
reasoned-analysis of the qualities which make up the lawyer and distinguish
him from people who are not lawyers. These qualities, in the order in which
he puts them, are
:
1.
the lawyer’s ability to reconcilc his natural desire to make money with
his dedication to the advancement of justice and order;
2.
his technical competence which, by enabling him to foresee consequences
which the layman might overlook, promotes consistency, and therefore
continuity, in the growth of society;
3.
a detachment which enables him to compromise between conflicting
interests;
4.
his aptitude for the position of second-in-coinrnand of an organisation;
5.
his capacity as an advocate;
6.
his dislike of partisanship;
7.
his sense of responsibility;
8.
his cool and persistent observation of the trends of social conduct;
9.
his adaptability as
n
man of affairs.
Some earthworm
!
This paragon of carefully cultivated virtues is obviously just the man that
any society needs to make it tick over.
I
do not know how often he is
encountered in the
USA.
In Britain he can hardly be expected to exist at
all. Even
Mr.
Cavanaugh admits that not every practitioner commands the
whole catalogue of these qualities and that certain of them belong peculiarly
to the
“
office lawyer
”
while certain others belong to the
“
trial lawyer,” and
he notes without disapproval that “this natural division of the profession finds
formal recognition in the English bar, which divides into solicitors and bar-
risters.” In fact he notes that “the two types of practice tend to diverge
and lawyer8 tend to be one
or
the other. Only those fortunate few who can
successfully manage this wide range of personal psychology without becoming
schizophrenic can make
a
full career of both types of practice.” But even
the American trial lawyer and the English barrister can never stand side by
side on common ground. Discussing the art of persuasion and the lawyer’s
‘‘
skill in eliciting emotional as well as intellectual response,” the author
adverts to the age-old complaint that the advocate is prepared to prostitute
his personality by putting these talents at the disposal of other, perhaps un-
worthy, people and that he thus incurs the disagreeable penalty of being called
a
“
mouthpiece.” Mr. Cavanaugh continues
:
“
There are,
I
believe, lawyers
who
fit
this definition; who have natural talents of persuasion and evocation
and who are willing to use these talents to the fullest in
any
cause that pays
the appropriate fee. They are rare, however; most of those lawyers who
have developed a reputation in trial work,
or
similar areas, can and do attri-
bute at least a part of their success to the sincerity and warm conviction
with which their causes are presented.” Indeed the very appearance of such
a
man in his capacity as advocate “is a representation of the substantiality
of the case-an indication to the judge that the lawyer has listened to the
client’s story, believes his testimony, has verified what facts he could, thinks
there is at least a reasonable issue as to where justice lies in the case, and
considers the question of justice important enough to burden the court’s time
with
.”
This of course is
a
forthright challenge (though the author does not
present it as such) to the creed of the English advocate, who is in duty bound
to use his talents in any case that pays the appropriate fee (and very
uncomfortable it sometimes is). But Mr. Cavanaugh’s exposition is in line
with Canon
31
of the Amrrican Bar Association’s code of professional ethics
which says:
“No
lawyer is obliged
to
act either as adviser
or
advocate for
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