The Harris Tweed Case and Freedom of Trade
| DOI | http://doi.org/10.1111/j.1468-2230.1942.tb02862.x |
| Date | 01 December 1942 |
| Published date | 01 December 1942 |
| Author | W. Friedmann |
THE
MODERN
LAW
REVIEW
VOl.
VI
DECEMBER,
1942
Nos.
I
and
2
EDITORIAL
NOTE
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VI
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T
R.
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CHORLEY.
for
the
Editorial
Committee.
THE HARRIS TWEED CASE
AND
FREEDOM OF TRADE
T
is not often that an English decision openly reveals the
political and social ideals which support the law. American
law, in this respect,
is
very different. The Constitution,
as
the
supreme source of law, enforceable by the Courts, necessitates a
legal interpretation of the political, economic and social principles,
such as freedom of person or property, which it formulates in
I
2
MODERN LAW REVIEW
Dec..
1942
broad terms. But in English law, principles such as freedom of
property or trade, form merely the basic theme. There is, in the
absence of
a
specific law, no basis for an action founded on freedom
of property, person or trade. These and other principles appear
at
random in judgments when a judge wishes to give emphasis
to
a
decision
;
but their chief importance lies not in any specific
legal
protection for the citizen;
it
lies in
a
mental background
and in principles of interpretation which they supply to those
administering the law. Consequently they remain vague and
indistinct. That has the advantage of adaptability and elasticity,
but the disadvantage of all inarticulate and vague ideology.
It
is
therefore an event of more than ordinary importance if
a
decision
of
the House of Lords uncovers some of the most
important ideological issues. The
Harris
Tweed
case1 not only
shows more clearly than any previous decision the elusiveness
of
the ideal of freedom of trade,
it
demonstrates also the evolution
which economic individualism
has
undergone in the last fifty
years-the development from an almost pure Benthamism
to
a
position where economic groups struggle with each other, with
authority looking on
as
an umpire who attempts to interfere little
and to be impartial.
The Harris Tweed case
is
a
conspiracy
case.
For the analytical
jurist
it
adds one more to the massive number of decisions which
have attempted to grapple with that mysterious tort, in great
length but with scant success. The chief stages are marked by the
“Trilogy”
consisting of the
Mogd
case,%
Allen
v.,
Flod
and
Qzcinn
v.
Leathem!
by
SorreU
v.
Smith,5
Thorne
v.
Motor
Trade
Associatiod
and now the
Harris
Tweed
case.
No
attempt
will
be
made,
in
this article, to add to the numerous efforts
to
reconcile
these and lesser cases on analytical grounds. After many hesita-
tions and discussions,
it
is now generally accepted’ that conspiracy,
to
be actionable, requires
(a)
joint action by
at
least two persons,
(b)
malice, to be understood as action devoid of
a
reasonable
purpose. Both these propositions are affirmed‘by the House
of
Lords
in
the
Harris
Tweed
case:
and both demonstrate the
complete impasse in which this purely analytical approach has
landed the law. The origin of conspiracy in criminal law may
do
I
All
E.R.
142.
1
Crofter
Hand
Woven
Harris Tweed
Co., Ltd.
v.
Veilch
and
Another
(1942).
*
(1892), A.C.25.
(1898). A.C.
I.
’
(1901).
A.C.
495.
‘
(1925).
A.C.
700.
’
(1937)~
A.C.
797.
’
Cf.
Salrnond,
Torts,
s.
156; Winfield.
Tort,
s.
13.
8
Cf,
in particular, the judgments
of
Lord Simon,
L.C.,
and Lord Wright
in
the
Ham’s
Tweed
case.
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