REVIEWS
| Date | 01 October 1949 |
| Published date | 01 October 1949 |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00145.x |
REVIEWS
DICEY’B
CONFLICT
OF
LAWS. Sixth edition under the general editor-
ship
of
J.
H.
C.
MORRIS
with specialist editors. [London:
Stevens
&
Sons, Ltd., and Sweet
&
Maxwell, Ltd.
1949.
cxxix
and
912
pp.
f4 105.1
THE
publication of
a
new edition of
Dicey
will be regarded
as
a
great event
by all those interested in
or
concerned with
the
Conflict of Laws. The fifth
edition appeared in
1982.
Over the seventeen years which have since passed
a
remarkable development of this branch of the law has taken place both in this
country and abroad: Parliament has enacted
a
number of statutes bearing
upon it; very many cases, some of them of fundamental significance, have come
before the courts; no less than four textbooks have appeared, and numerous
monographic studies have tried to elucidate spedfic problems. Outside England
there has been an equally rich output in
a
field
to
which comparative research
has always been essential.
In these circumstances it is not surprising that the preparation of a new
edition proved to be
a
herculean task. Nobody could have discharged it better
than Mr.
J.
H.
C.
Morris,
to
whose writings the Conflict of Laws owes
so
much,
but even he found it necessary to share the work with seven collaborators,
Messrs. Cowen,
Cross,
Kahn-Freund, Lipstein, Parry, Welsh and Wortley.
The team work which has resulted and which is generously acknowledged in
the preface, seems to have been
a
real success.
It
throws a signiflcant light
on
the
difficulties of this particular subject that ‘responsibilitg
for
editorial
policy
belongs to
the
editors collectively, but not to any individual editor, since
some of the decisions were only arrived at by
a
majority vote’ and in at least
one case,
i.s.,
the deletion of the chapter on Nationality, only by the general
editor’s casting vote.
It
ie
not easy by way of
a
review to do justice to
a
work
to
which eight
highly qualified experts have brought
so
much learning, thought and devotion.
To describe the contents of the book would be a narrathre full of platitudes.
To look out for printing errors, omiasions
or
other slips would be lacking in
that spirit of humility whlch should animate
a
reviewer of this work.
To
discuss individual points and to agree
or
disagree with the editors’ decision
would be attractive for the reviewer, but disproportionate
to
the calibre of
the editors’ achievement. They are entitled to expect
a
broad approach and
a
generous appreciation of their labours and accomplishments.
This, in a sense, is really
a
fourth edition of Dicey’s classical work. The
intervening editions for which Professor A.
B.
Keith was responsible were in
mnny directions open to criticism. The editors of the present edition have,
on the whole, taken the third edition as
a
basis and brought it up to date.
The result is
a
book which preserves the spirit of Dicey’s genius, yet adapts
it to modern conditions. What Dean Falconhridge expected from
‘
the skilled
and enlightened editorship of
Mr.
J.
H.
C.
Morris’ has indeed been fully
realised:
a
work of classical stature, exposed to the danger of growing stale,
has been restored to freshness and vitality and thus been assured of retaining
its pre-eminent position not only as
a
collection
of
material, but also as
a
guide to the law and its rational evolution. If an Ainericnn scholar could,
with some justification, speak of the
‘
Anglican positivism
’
of earlier editions,
the keynote of the sixth edition lies in its measured progressiveness, mindful
of trndition, yet searching for judicious adaptation and advance.
Dicey
has
again become a book that not only informs but
also
inspires. Moreover,
It
has
become a book that informs correctly and inspires wisely.
518
Om.
1949
REVIEWS
519
A few examples niay serve to illustrate this characterisation.
It
is particu-
larly striking in connection with the Chapter on Movables (pp.
667
to
678t
which, as the italics in the Table*of Principles and Rules make evident, hae
been almost completely re-written by Mr. Morris. Thus the question of the
law governing the transfer of goods in transit was hardly mentioned in
previous editions. The new
Dicey
suggests that where the
silw
is casual
or
unknown,
a
transfer valid by the
lea
actw
will probably be recognised here,
though this does not necessarily exclude the validity of a transfer according
to the
lez
situs
where this
is
tippropriate. In connection with the assignment
of intangible things the primacy
of
the proper law
is
now proclaimed and
a
clear distinction is drawn between the assignor-assignee and the assignee-
debtor relationships. The treatrnent of the authorities which, on this point
of great practical importance, are conflicting and particularly unsatisfactory#
is
interesting: they have by no means been ignored, but they are attractively
explained and distinguished
so
thnt
a
courageous judge should not find it
difficult to adopt what is unquestionably the only sensible principle. A certain
amount of audacity howevcr, will be required of non-academic lawyers, if they
should feel inclined to adopt
Mr.
Morris’s views on renvoi
or
on classifica-
tion and the incidental question. On the former matter he gives many, though
frequently soniewhat mathematical reasons against the foreign-court theory,
but he gives none for his Anal submission that the internal-law theory should
prevail. On the latter points, completely omitted from the former editions and
not referred to in the present edition’s Table of Principles and Rules,
,Mr.
Morris presents an exhaustive and interesting discussion, although it
cannot easily be reconciled with the prevailing practice which does not support
the editor’s preference for what, on the whole, is characterisation in accordance
with analytical jurisprudence and compamtive law.
Dr. Kahn-Freund’s chapters on Contracts (pp.
679
to
763)
are not only the
longest and, for the average practitioner, the crucial ones of the book, but
also of outstanding merit. The finesse with which Dicey’s great text hoe
been handled is impressive. Reading between the lines one cannot help feeling,
though one cannot prove, that Dr. Kahn-Freund would not have been
disinclined to modify Dicey’s subjective theory of the proper law as applied
by the Privy Council in
Vita
Foods
Products
v.
Unw 8hipping
Co.,
Ltd.
[1939]
A.C.
277,
but the only point at which the printed word allows the
cat out of the bag is where the rule as to capacity is being restated by
suggesting that the law with which the contract is most closely connected should
govern-a solution put forward with such absence of dogma that one is
tempted in overlooking its heresy and also its inelegance in the context.
On
the other hand
R
real welcome should be extended to the new Rule
i8ff
according to which the formation of a contract
is
governed
by
the proper
law, and to the new formulation of Rule
140
which now attributes equal
force to the
lea
loci
contractus
and the proper law in
so
far as formalities
are concerned and to the thirty-five pap;es dealing with foreign currency
obligations. The discussion of bills of exchange
or
of the law of agency will
provide the careful reader with representative examples
of
the scholarly, yet
predominantly practical appronch which gives these chapters their mark.
Similar remarks apply to the contributions of Mr.
Cross,
who is responsible
for the rules relating to jurisdiction in matrimonial affairs (pp.
216-268,
868-386)
and the validity of marriage (pp.
768
eqq.),
and of M.r. Welsh who
deals with family relations (pp.
269-276, 480620)
and status (pp.
466476).
The former hns done useful service by his treatment of the problem of
polygamous marriages, by giving adequate space to the choice of law problem,
by his minute examination of the decision of the Court of Appeal in
De
Reneville
v.
De
Reneville
[
19481
P.
100
and, as some may think, by rejecting
Professor Cheshire’s view of the influence of the matrimonial home upon
questions of capacity to marry.
As
to Mr. Welsh’s chapters particular
attention will have
to
be given to his criticism of
Re
Bischofehsim
[l948]
ch,
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