REVIEWS
| Published date | 01 January 1954 |
| Date | 01 January 1954 |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb02148.x |
REV1
E
JV
S
THE
CHANGING
LAW.
By
THE
RT.
HON.
SIR
ALFRED
DENNING.
[London.
Stevens
&
Sons Ltd.
1953.
viii
and
122
pp.
10s.
net.]
THE
major thesis of this extremely interesting book concerns the contribution
which the judges have made in the past and are making today to the
development of the law.
It
may be summed up in the author’s statement that
“the truth is that the law is often uncertain and it is continually being
changed,
or
perhaps
I
should say developed, by the judges.”
No
one can
doubt that the judges do make new law from time to time, but whether
they play quite
so
important a role in this field as is suggested in these five
lectures may perhaps be open to question. As Mr. Justice Holmes has
emphasised,
a
judge can only create new law ‘‘interstitially,” and today the
opportunities given to him to do
so
are strictly limited. Lord Justice
Denning refers to Lord Mansfield as the obvious illustration
of
the creative
judge, but he was peculiarly fortunate in his period and in his subject. Never
again will
a
judge be given an opportunity to incorporate a novel branch of
the law, such as the Law Merchant, with the common law.
Nor
is it likely
that most modern judges would welcome such an opportunity, for
it
has
become the established tradition of the English Bench that it is the primary
function of
a
judge to interpret the law, and not to create it. The author
is
himself a notable illustration
of
what Sir Frederick Pollock has described
as
“Judicial Valour,” but even he has been forced to work within
a
limited field.
In the first lecture on “The Spirit
of
the British Constitution” Lord
Justice Denning emphasises the essential importance
of
the independence
of
the judges, guaranteed by the Act of Settlement. No one today would
question this, but it is necessary to remember that the English bar has played
an equally great part in the establishment of liberty. Freedom of the press
and freedom of speech do not seem to owe to the judges
as
much as this
book would suggest,
for
it
can hardly be said that the judiciary played
a
distinguished part in these matters at the end of the eighteenth and the
beginning of the nineteenth centuries. Here Erskine’s name as an advocate
stands supreme. The Inns of Court have not always been above criticism, but
throughout English legal history they have been a bulwark of freedom.
It
is particularly important to emphasise this today when it may fall to the
lot of counsel to defend an unpopular cause.
In the second chapter dealing with “The Rule of Law in the Welfare
State” Lord Justice Denning seems to suggest that the Crown Proceedings
Act,
1947,
must be attributed in large part to the decision of the House of
Lords in
Adarns
v.
Naylor
[I9461
A.C.
543.
That decision undoubtedly made
it clear that something must be done in the matter, but it was only the last
step. We cannot get a true picture of this reform unless recognition is given
to the long-continued efforts that had been made by the writers on tort and
on constitutional law to bring about the necessary amendment.
It
was they
who educated the legal profession
so
successfully that there was hardly
a lawyer who did not favour this change.
It
therefore required only
a
find
push
to dislodge the various Government Departments from the intran-
sigent position they had taken.
In
dealing with the tortious liability of hospitals for the wrongful acts
of
their servants, Lord Justice Denning says (at p.
29)
:
“The hospitais, how-
ever, afford the most striking illustration of how a nationalised undertaking
86
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