THE UNPAID MAGISTRATE AND HIS FUTURE
| Date | 01 March 1945 |
| Published date | 01 March 1945 |
| DOI | http://doi.org/10.1111/j.1468-2230.1945.tb02884.x |
THE
MODERN
LAW
REVIEW
VOl.
Vlll
MARCH,
1945
Nos.
I
and
2
THE UNPAID MAGISTRATE AND
HIS FUTURE
HE
long-awaited Rcport
of
the Departmental Committee on
'TI
ustices'
Clerks'
makes substantial, if not very radical, pro-
posals
for
rcfornis in connection with the Magistrates' Courts.
It is therefore a suitable time to considcr the whole problem
of
these
Courts, in
so
fni
dt
any rate as they are staffed by unpaid, lay justices.
It would
be
beside the point to describe in detail the long historical
procrss
by which thr present system
has
gradually been built up. Its
origins havc now
1)cc.n
pushcd back to the twelfth century, and by
the.
end
uf
the h4iddlc
Ages
the justice of the peace had become an
cssrntial and important wheel in thc machincry of justice. Before the
rebuilding of local govcrnment institutions in the nineteenth century
tlic justiccs controlled thc machincry
of
local government,
as
well as
the pc.tt!- criminal administration. The central government was far
away
and
the justices lorded it in the provinces. Envied, hated, and
fcared
throughout the eighteenth and early nineteenth centuries by
largc sections of tlic community, they actcd
as
the bulwark
of
the
doininant laridowning class, dnd acquired a prcstigc which still in large
measure persists, and
is
niarkctl by the high value attached both
socially
and
politicallgr to tlic officc among local notabilities.2
Xltliough in local gowimii(~iit thy rctain but vcstigcs of their
forrncr
pwc~ in tlicii. p;ii-tici]~;ition
iii.
tlic
St;tntling Joint Committee
wit11
tlic
Count!.
Council, wliicli is tlic motlcrn police authority
in
*
C~nd.
6jo7:.14
:
rcfei-I-ctl
t(J
hl:rCi1ftcr
as
I
'l'lic
Committee
was
prcsiilcil
O\v
by
Imrcl
Itoclic,
\vho
Ix,siilrs
havin:: bccn
a
distinguished
Lord
of
Al,praI,
11as
liatl
c.sprric~~cc
as
il
county
In:iRistratc,
ant1
liatl
as
its
Secretary
rluririfi
thc
1atc.i-
pIt
of
its
\vork
I)r.
I<.>
hl.
J;lcltson, an occasional contributor
tr~
thi,
I
;in11
;iiitIi~~r
of
7'kr
,~l(tcl~iiirr,v
i~/,/it.~tic~
in
I
2
Ihis
"social
distinction
"
\{-as
c(mimciitctl
011
I)y
thc
lloyal
Coinmissioii
on
the
Sc!cction
of
Justices
of
tlic
I'c~acc
in
1910.
C.mtl.
5358.
2
MODERN LAW REVIEW
March,
1945
counties, their importance in the administration
of
justice
has
steatlilj.
increased since the middle years of the last century. Even hcre, how-
cvcr, one side
of
their work, the policc sidc, has practically disappeard
Originally appointed primarily to keep the peace, as their ancient titlc
consematores
pacis
signifies, they bccame less and less competent to
do this work efficiently as society became less rural, and with the
growth of the modern police system their functions in this respect
became otiose. Here and therc a country jiistice may still intermeddle
with police matters, but by and large “the justices
of
the peace have
become primarily judges,”3 a change which the Committee regard
as “fundamental.”
The volume of work carried through in the Magistrates’ Courts
has swollen as a result partly
of
the creation of large numbers
of
new
offences and some new civil duties, as in connection with the adoption
of children, and partly
by
the establishment of thcir optional jurisdic-
tion ovei indictable offences-the option, of course, being that of the
accused, not that of the magistrate. The latter process was instituted
in
1847
(the middle years
of
the last century were
a
remarkably frrtilc
period not only in the history of the substantive criminal law, but for
innovations in procedure
also
;
the succeeding gcnerations have made
nothing like thesame contribution to progress). It has been continually
developed, and must be regarded as of fundamental importance.
For
example, in the case of children
it
has resulted in the justices obtaining
full jurisdiction, except in cases of h~micide.~ This jurisdict.ion dates
from the Criminal Justice Act,
1855,
in the case of adults.
In
1879
the
number of persons tried summarily for indictable offences was
38,690
;
by
1938
this figure had
risen
to
75,402,~
a
substantial propor-
tion
of
whom were, however, juveniles. During the same period the
number of persons sent for trial on indictment fell from
16,303
to
10,003:
a
decrease largely due to continual extensions of the
jurisdiction
of
the justices.?
The total number
of
charges coming before
the
Magistrates’ Courts
has not increased in thc same proportion, but the numbers given,
661,653
in
1893
to
820,181
in
1938,
would be disturbing if it did not
appear that more than half the latter total was made up
of
charge:
under the Traffic Acts, while the decrease in the charges for drunkenness
from
210,024
in
1907
to
53,402
in
1938
can
bc
rcgardcd as evidence of
a social revolution.”
1
have given the above extracts from thc
figures
published in the
Krport for the purpose of emphasizing the grcat volume of the criminal
Report, p.
j.
4
Children
and
Younk
Tirwns
Act,
19.33.
s.
60.
Sched.
111.
5
Report, p.
6.
a
Ibad.,
6.
7
Stone’s
Justices’
illam&
lists
eighteen different classes
of
case.
In
offences
relating to property the
valut
r,:
the property concerned has been steadily raised,
while the punishment which
I
Irt;
Court may inflict has become correspondingzy
more severe, amounting
now
ti.
a
maximum
:.entente
of
six months’ imprisonment.
or
a
fine
of
6100,
or
both.
*
On
this paragraph
see
the Report, paras.
10--12.
THE
UNPAID MAGISTRATE
AND
HIS
FUTURE
3
work
which
is
cntrustd to the magistratcs. But it is ob\pious to :Iny
obscrvant person that
tlr
lifr
~i‘
the community
is
very much inter-
mirigled
with,
;arid
infincwrd by, their
work.
There can, indeed,
btl
hit
Iw
adults,
at
:in>‘
rate among thost, wlio
drive
motor vehicles,
\vl:o
li~ve
not
hiid
I~eisonnl csperience
of
these courts. ?,loreover, their
oill!.
less
iniportdn
t
civil !ur:sdictior: over such matters
as
husband and
~wII::,
bast.t:-tl!;,
mail
;maiLcic:s,
enforcement
of
rates, and employers
anrE
\vori;pcople
I(hc
last-named of less practical importan~ in modern
tinits)
touchs a very largr number
of
the
proletariat
on
an
intimate
side
of
life, and
may
!lave lasting effects on their well-being.
.A
large pripxtion
of
this work
is,
of
course,
done
by
paid profes-
sioncls
:
the metropolitan magistrates in London, and the similarly
qualified stipendiaries in
the
largest provincial cities. The majority
of
County Boroughs, however, have never taken steps to secure the
appointment
of
stipendiaries
;
this is
so
in some cities such
as
Newcastle,
Sottingham, Bristol, and Lcicester. Here and in all other centres
oi
populatim
thr
unpaid justiccs are entirely responsible for the work
of
the hlagistratzs’ C‘oiirts,
and
even in Londor: and
the
larger cities
thcy
have not heen completelj~ ousted by any means. In the result,
tiierefore, a
\.er)-
large mass of iundamentally important social work
is entrusted bj. the community
to
aniate~rs.~
This
is
at
first
sight
an
extraordin;try state of affairs: although it
is
explicable on historical groiirids it
is
not thereby justified. The lay
magistrate inded
affords
such an obvious tar@ for the social satirist,
and indeed
for
the
mthusiastic rt4oi-mer, that from
tire
time
of
Shake-
speare with his crucl portrait
of
Robert Shallow “member of the
quorum,” to
our
own days, when popular papers such
as
Trz4tF.
and
Jolzit
Bdl
have spccialised in
holding
up
to
pblic ridicule and contempt
the worst cases of abuse, he 1i:is been continuously in the limelight, and
ail
unkindly limelight at that.
Most
of
the obloquy
in
which the lay magistrates are held is quite
undeservcd. It represents a hang-over from older times when justices
quite naturall) ant1 opdy regzirdcd themselves
as
a bulwark
to
protect
the interests of the governing class. They then
used
their police,
administrative, and judicial powers ruthlessly and often unfairly, and
thereby earned
3
hatred and contempt which their successors are taking
ii
long time to live
doiwi.
There has ct~tainly of recent years been
a
perceptible diminution
in the flood
of
tlic:
attack,
and
it might appear to
a
cursory observer
that ilie system
has
acquired a certain popularity. Indeed, Dr.
Han-
bury in his recent book
on
the English Courts gives a highly eulogistic
account
of
the
unpaid magistrates, and takes the view that criticism
is
practjcrrlly non-existent,
going
so
far as
to
say that only
“on
rare
occasions
. . .
an individual justice will arouse public criticism.”1°
The opposite point
of
view has been well put in the book
English
..
*
According
tu
AIr
]’axe
iii
Jidicc
of
the
Pcuw
(p.
25).
tliere
arc
r+lx~iil
a
In
Jik7glish
C~JU)/>
vf’
La
P.
1’.
147.
Sve
my
reviuw
of
tl~i?
I~LWJ~
in/vu.
p.
35.
tlii~unsiiri
Courts
Iiriny
wr,rked
liy
lay
jii~tic.i:s.
4
MODERN
LAW
REVIEW
March, 1945
Justice,
by
“
Solicitor,”” and
is
supported by
a
number of incidents
involving in
a
few cases liars11 conduct, and in many others unjudicial
methods, vouched for
by
the author
as
being within his own personal
experience.
“
Solicitor” has obviously had much practice in blagis-
trates’ Courts, and while on careful reading his indictment is perhaps
less serious than would at first sight appear, the picture which he
paints is nevertheless a disturbing one.’?
In his Preface “Solicitor” gives
it
as his opinion “that the working
classes
as
a whole have not shared in the positive belief in English
justice
”
which is common among other classes. Other experienced
practitioners have expressed similar views to me, and
I
believe this
scepticism to be more prevalent in regard to the unpaid Magistrates’
Courts than to any others.
I
recently had the opportunity of testing
the soundness ‘of this view among war-time discussion groups held
among firemen and civil defence workers in the Sorth-west
of
England.
On a number of occasions when opening discussions at such
groups,
I
took the subject of the
lay
element in the administration of justice.
I
found that the suspicion and dislikc
of
thc lay magistrate was wide-
spread, indced almost unanimous, for only once did
I
hear the view
expressed that the present system should
be
retained. The opinion
was to all intents universal in favour
of
replacing the unpaid
by
the
professional magistrate.l3
However ill-founded this attitude may be, it is certainly a serious
matter that it should exist. Confidence in the sensible and impartial
administration of justice
is,
or
should be, an essential elcmrnt in social
stability. When it is not present every effort sliould
be
made to discover
what
is
at fault and to remedy it.
Perhaps the only cffrctivc remedy is that
of
abolition: to accept
the solution of the discussion group members, and substitute paid
professionals
for
the unpaid amatcurs.14 After
311,
modern society
is
so
much more complrx and specialised that a qrstem which had its
obvious advantages when the amount
of
law cnforced
was
small and
reasonably well known, at any rate to the cducatcld, when economy
was important, and slowness of communication made the employment
of professionals well-nigh impossible, may well be considered to have
outlived its usefulness.
The proposed remedy
is
certainly feasible under modern conditions.
The general administration of the civil law, except
for
the more
l1
See
second
edition
pussii~~.
This hook
is
now obtainable in
the
I’enguin
Series.
Iz
As
distinguislied
and
rtcutc
an
obsvrver
as
I.ortl
lioclw himself said in
I?k
Foreword
to
Justice
01
/he
I’crrw,
by
41r.
Len
Pap,
that the prevalent criticisms
“have material
to
justify them.” XKain.
Ilr.
K.
31.
Jackson says, “Criticism
is
too
widespread to
be
ignored,”
Jluckintvy
of
Justice
zu
/;ttgloizd,
p.
146.
13
‘This suspicion
is
rctlvcttd
in
the
almost completely liostile attitude
of
the
Press.
and.
as
far
as
one
could
jutl~e.
of
the general pulilic, to\vards
tlir
Juvenile
Court
at Hcreford in conneLtion with
the
incident
\vhicli
wab
afterwartls investi-
gated
by
(;oddartl.
!,.I.
Sc-c
the
daily l’ress, ijth
Octolwr,
ly)-IJ.
It
was
disturbing
to
note
how
the
papers
and
thc
public at
once
prrjutlged
thc
case
against thv
bericli
in
qucstiuri.
.4
propos;il
ul
this
Lypc
was
discussed at
thr
I.n\v
Society’s provincial
inrrting
in
1935.
THE
UNPAID MAGISTRATE AND
HIS
FUTURE
5
substantial, and certain difficult types of case, is carried out by some
sixty County Court judges. The existing number of petty sessional
divisions would certainly entail the appointment of
a
much larger
number of stipendiaries than this. The Roche Committee, however,
advocate a complete review of the existing divisions, and there can be
no doubt that if this is carried out in
a
scientific and radical manner,
a
reduction in existing Courts of anywhere from a half to two-thirds
can be secured
:
the motor-car and motor-omnibus make access to the
Courts
so
much simpler a matter than it was a generation ago. It
is
necessary, however, that Criminal Courts should sit more frequently
than their civil counterparts, and however well-organised the system, a
much larger number of stipendiaries than of County Court judges
would be required.
If
the reform suggested is really necessary, however,
it
cannot be maintained that the comparatively small cost involved,
costing well under half a million per annum, should be allowed to
stand in the way.
I
am not, however, satisfied that a stipendiary magistrate provides
an
ideal Court. While
I
have
no
doubt that Court for Court the
stipendiary’s is a better Court than that of the unpaid magistrate,
I
have not found in my
own
experience, admittedly not a wide one,
that the difference is more than small, and
I
think that the
good
lay Court where it exists is a more satisfactory tribunal than that
provided by the best stipendiary.16
The greatest weakness of the present-day English judicial system,
in my view, is that except in Courts
of
Appeal, it relies too much upon
decisions by single judges. The judicial process is carried through
by a chain of reasoning, in the great majority of cases impromptu,
and usually by elderly men who are often tired, may be afflicted by
sleepiness, or indeed by oncoming illness.
A
momentary lack of
concentration or inattentiveness may vitiate the whole process. The
unpaid Magistrates’ Court with its rota of several justices
is
not
subject to this defect.
It
is true, of course, that the great bulk
L
small
criminal work does not provide cases where the decision
can
be open
to doubt, but it is just the doubtful case when it goes wrong which
rankles with the victim, and brings into existence a social sore. The
late Mr. Abinger, K.C., who had a very wide experience
of
small court
work, expressed the opinion that the Courts had gone wrong
in
about
a
third of the cases with which he had been concerned.16 This may
be putting the error too high, but there can be no doubt that it
is
substantial, and in my view the chief factor
in
this is the single judge.
Two heads are better than one is a rule almost universally accepted
on
the C0ntinent.1~
l6
At this point
I
should explain that
I
am myself an unpaid magistrate,
and
my
opinions may therefore be considered biased.
I
held them, however,
before appointment to the bench.
See
R.
C.
K.
Ensor,
Courts
and
Judges
in France. Germany. and England
The English system no doubt has its origin in trial by jury. Trial by judge alone
has only become cominon, in the cornnlon law Courts, since the desuetude
of
the jury began. In cases where there was no
jury
the judges sat
in banc.
la
English
Justice,
second edition, p.
35.
6
MODERN
LAW
REVIEW
March,
1945
The best stipendiarics
iirc
not ncccssarily those wlio 1nvv liad tlie
best practices. Work in the Temple may be very narrowing, and the
good professional magistrate
is
often a man who had
so
many outside
interests that his practice suffered.
A
man who has liad
a
with,
esperi-
ence of life, whether in the management
of
property,
of
a business,
or
of a trade union, has a good basis on which to build efficiency as
a
magistrate.
"
Many lay justices have the advantage that they have a
closer acquaintance with the problems of the people whom they judge
than have the professional bench."l6
It
may be interposed that the method of selecting professional
magistrates is far from ideal. These positions are in the gift
of
the
Home Secretary who has to rely upon personal recommendations. It
is obviously unsatisfactory that the police department should appoint
magistrates, as well as illogical that one Minister should appoint paid,
and another unpaid, magistrates.
Common-sense, and a spirit of fairness, are much more important
qualities for
a
criminal judge than technical legal knowledge.*Y
Common-sense often leads
a
lay magistrate to do justice not in accord-
ance with law, while
a
professional magistrate or judge will apply
a
technical rule though he knows he is thereby acquitting a guilty man.
The lawyer is apt to be shocked at cases when convictions occur
though some technical requirement has not been complied with
;
laymen are less squeamish.zO
I
remember defending
a
publican charged
with selling drink out of hours before a lay bench. The prosecution
had not a strong case, especially after cross-examination
of
the police
evidence, but the bench found the man guilty witliout retiring.
I
discussed the case with one of the magistrates afterwards. He agreed
that the police had not had a strong case, but added: "But then,
haven't
I
seen customers coming out of that place after hours for years
past?
"
The defendant was in fact guilty, and was morally properly
punished, though a stipendiary would probably have acquitted him.
It would, however, be idle to pretend that the present system
of
unpaid Magistrates' Courts is a satisfactory one, and the necessary
public approval for it will only be secured if a pretty drastic series of
reforms are carried out. Reform has, of course, been going on rather
slowly and not very drastically for some time past in connection with
such matters as trial of juveniles, appointment of magistriltes, retire-
ment
of
magistrates, hearing
of
appeals by Quartcr Scssions, and now,
it is
to
be hoped, in connection with magistratcs' clerks
;
tlic whole
amounting to a fairly respectable total. It is by
such
mctliods that we
lU
Claud Mullins,
Crime
mid
Psychology,
p.
206.
ID
Mr. Mullins in the work quoted at p.
20b
says:
"
Common-sense
is
an
essential virtue in those w1.0 dcal
in
any way with tlclinquents.
. .
.
X
training
in
common-sense
is
given
.
.
.
in non-legal walks
of
life
from
which the lay
justices come; work in trade
unions
for instance
soon
separates thosr possessed
of common-sense from those who lack it."
llut
lay magistrates do not always
display common-sense;
cj.
the caw mciltionrtl
by
lk.
K.
M.
Jackson when
a
bench
made an order against an uneinployrd nian to
piy
I
5s.
maintenance to
his
wife,
even after the wife hat1 obtained illdependent employment.
loc.
cit.
p.
149.
*O
Several
of
the cases describctl
in
li?iglish
Jitsfice
are
of
this
tvpc,
and must
weaken thr force uf the argument
with
the general reader.
THE
UNPAID
MAGISTRATE
AND
HIS
FUTURE
7
in England refashion our ancient inalitutions, and retain them in some
sort
of
working order. It would very often pay much better to try
something new, but the method employed seems to suit the national
genius.21
It
must be admitted also that owing to the large numbers of
politically influential people who have been appointed to the bench, and
who attach importance to the position, the opposition to any proposal
for
a
reform which involved the abolition of the unpaid magistrate
would be altogether too strong to allow
of
its having a chance
of
success.
I
propose therefore to examine some of the main criticisms which
are levelled against the unpaid magistrates, and to discuss ways and
means of effecting improvements.
The criticism most commonly met with in connection with the lay
magistracy is that its members are appointed for political considera-
tions and without due regard for their fitness for the work. This view,
which
is
widely held, has some foundation in fact, but the extreme way
in which
it
is often stated
is
largely a hangover from the nineteenth
century, the classic period of party politics, when appointments were
made by the Lord Chancellor, largely on the recommendation of local
Members of Parliament. This method was pushed to something like
its limit under Lord Halsbury, who
was
a great believer in the spoils
system, and largely as a consequence of the ensuing volume
of
public
protest a Royal Commission was appointed under his successor, Lord
Loreburn, which heard a good deal of evidence and issued
a
Report
in
I~IOS~
which contained a number of recommendations.
The Royal Commission agreed with much of the public criticism,
and
stated very frankly that the position
of
justice of the peace was
sought after too frequently merely as
a
rung in the ladder of social
advancement, and as
a
reward for political services.
It
recommended
that in future the Lord Chancellor in making appointments should be
guided by the advice of the Lord-Lieutenant of the county, who should
in
turn have the assistance of an Advisory Committee of justices drawn
from
all over the county.
This recommendation was accepted by the Government of the
day,
and over the last thirty years appointments have been made on
responsible advice of this kind. The Lord Chancellor is, of course,
still free to make appointments at his
own
discretion, but it is believed
that
in
practice he seldom, if ever, does
so.
The new system
is
not generally regarded
as
much better.% It is
1%
The Home Secretary,
Mr.
Herbert
Morrison,
in
a
recent address
to
the
Magistrates’ Association, said: “The system was designed
for
a very different
state
of
affairs from that which obtains to-day. and the large measure
of
success
which the Magistrates’
Courts
have achieved in adapting themselves
to
present-
day
conditions
is
due to the common-sense and ingenuity
of
the people who have
to
work
a
system which is
in
certain
respects out
of
date.”
The
Magistyate,
Supplemenf,
November.
19-44.
2%
Cmd.
5358/rgro.
za
Both Mr.
Mullins
and
Mr.
Leo
Page in the works cited express the opinion
that it has led to but little improvement. atid the general impression
among
the
Discussion Group members was that political considerations are still dominant
in connection with appointments.
MODERN
LAW
REVIEW
March,
1945
not easy to judge whether this view is justified, since nost of those
who express it can have had but little experience of tlie working of
the old system. It rather reflects discontent with the present methods.
The main line of criticism is still that appointments arc largely
political.
It
is true that the local party machines make recommenda-
tions to the Lord-Lieutenant which arc considered by the Advisory
Committees, and which are very often accepted. It is not true to say
that appointments are predominantly political, and it may be doubted
whether they have formed the majority. The Advisory Committees
which are composed in such
a
way
as
to reflect the most competent
among the magistrates in the counties, do their work carefully and
conscientiously, and it may be doubted whether there are many caws
where they accept the nominations of the local party caucus without
satisfying themselves that the candidates arc satisfactory
on
general
grounds. Nevertheless it must be admitted that tlie party nominations
are frequently given in reward for past services, and the men and
women selected are often too old and worn out to make efficient
magistrates.
Quite apart from political cases, howevtr, the reward
for
service
method, which is naturally largely followed, leads to the appointment
of elderly magistrates, some of whom continue to sit long after they
have ceased to be really competent. This had become
so
much
a
matter of criticism that within the last few years
a
sensible, and as
some might say typically English, device has been invrntcd
to
get over
the difficulty. This is the
Supfilemental
List,
which is in effect
a
list of
magistrates who are no longer fit for Court work, but
who
can
still
issue warrants,
sip
documents, and do the wcjrk
of
a
like
A
magistrate who feels that his powers are failing may apply for transfer
to this list. Others will be placed on the list by thc Lord Chancellor
without their consent. The local Advisory Committee may do, and
does,
useful work here, and over the last few years
a
substantial number of
magistrates of over seventy years of age
have
bcen
retired in this
way, though many over that age are still doing useful judicial work.
Political appointments are attacked on two main grounds. Firstly,
that. they result in benches with
a
political bias. It is only very occasion-
ally, indeed, that political considerations cnter into the hearing of
a
case directly; these are usually assaults, or obstruction of the police
in connection with strikes. Indircctly, of comsc, the position
of
a
judge is not free from the subconscious bias which, for
esamplc,
makes
a property owner more likely to deal harshly with oftcnccs against
property. It may bc that in country districts tlic
slmdow
of the
landowner and of the farmer
is
still across thc land, but generally
speaking experience indicates that Labour magistratcs are
not
less
severe in cases of theft and damagc. to property than are the so-called
representatives of propt'rty
;
indcctl,
I
have lieartl tlicm critirised as
being more harsh. Gencrall!- speaking, thrrc has of
coursc
in
1
crcnt
times bcen a notewortliy tcndcncy to Icniency in the sentencing of
*'
See
the
Justices'
(Supplemental List)
Act,
1941,
and
rulcs mntle
thereunder.
THE
UNPAID MAGISTRATE AND
HIS FUTURE
9
prisoners, and this is at least as obvious among the unpaid magistrates
as
among professional judges.
Secondly,
it
is
suggested that politicians are of a temperament less
suited to hold the scales of justice even than are other kinds of people.
This may in some cases be true, though some of the best and most
even-handed of the High Court judges have been prominent politicians
before appointment to the bench. Practical politics, however, calls
for an alertness
of
intelligence and
a
knowledge of human nature which
are
of
great value
on
the bench, and
I
am inclined to think that as a
class politicians are more suited to the work of the unpaid magistracy
than most others.
The real problem, however, is to find
a
better method of selection
:
few are the constructive suggestions which have come from the critics.
The proposal that magistrates should be nominated by trade associa-
tions, professional societies, trade unions and other similar bodies is
perhaps attractive at first sight.
It
will not, however, bear analysis
as
a
general method
of
appointment, and
it
could hardly be relied
upon to provide the best available candidates.
It
might be useful to
give such bodies the same facilities for suggesting names to the
Lord-Lieutenant as have the political machines.
It
may be doubted, however, whether any better method than that
of
the Advisory Committee can be devised. Where such committees
are well composed and carry out their duties conscientiously the local
benches are usually satisfactory and there is little criticism. Apart
from the Report of the Royal Commission, however, they are given
no guidance, and no attempt-.is mabe to supervise their work. The
Lord Chancellor
or
the Home Secretary might profitably hold an
inquiry
into the results of the last thirty years’ working of the system,
which unfortunately is treated altogether too much as
a
hush-hush
affair.
What seemed, however, to upset the members
of
my discussion
groups more than anything else was the fact that amateurs are set to
administer
a
code of penal statutes which is obviously complicated,
and on which the liberties and happiness of
so
many depend.
The stock answer to this criticism is that they are guided on all
questions of law by their clerk. There
is,
of course, a substantial
element of truth in this reply, but
it
does not bear detailed examina-
tion.
To
begin with, the magistrates are not obliged to take the law
from their clerk in the sense that a jury must do
so
from the judge.
It
is
well known that they do not always do
so,
and even if they do that
fact is not necessarily known to the accused, and does not constitute
a
satisfactory state of affairs, because the magistrates are in fact
responsible for the decision arrived at, not the clerk.
The clerk is nevertheless in many ways the outstanding figure in
the Court
;
and if a man of personality and long experience will often
establish a dominating position with his bench, or, as it is often styled,
will
‘run’ the
As
the clerk usually retires with the bench
zs
Report,
para.
64.
10
MODERN
LAW REVIEW
March,
1945
when they withdraw to consider their decision, it naturally follows that
in public estimation it
is
the clerk who
is
determining the case, and very
often this
is
so
in fact. In the words of the Report,26 “there are few
things more detrimental to justice than this.” It
is
difficult to see how
the clerk can successfully perform his function
of
advising the justices
unless he retires with them. The Roche Committee regard it
as
“entirely proper’’ that he should do
so.
Their only suggestion for
avoiding the difficulty to which they draw attention
is
that “the
relationship of bench and clerk” should be “properly regulated in
Court.”27
The dominance of the clerk depends partly
on
personality, but
much more on his superior knowledge
of
law and procedure which puts
his justices
at
a
serious disadvantage with him
;
the expert is too likely
to be “on top,” rather than
“on
tap.” It can only be avoided if this
feeling
of
completely inferior knowledge can be overcome, and this
can only be achieved
if
the members of the bench are given
a
sound
grounding in the generiil principles of the law which they administer,
or
alternatively have the advantage of the presence among them
of
one colleague who is learned in the law.
As
Mr.
Leo Page points out in his admirable book,
Justice
of
the
Peace,2*
it
was the rule
in
the Middle Ages to appoint at least one
member of the “quorum” who was “wise and learned in the law”
(later
it
was two), and it was obligatory that such a magistrate should
be
on
a
bench handling cases
of
felony.
The justices’ clerk is
a
later
innovation, and indeed the need
for
a
learned clerk came’to be realised
in measure as the old rude fcll into desuetude.
It
must have been difficult even in the Middle Ages when benches
were comparatively few to secure the presence of
a
magistrate learned
in
the law, and it would be interesting
to
know how far
it
was success-
fully accomplished, and the methods which were adopted. Although
something might be done by the appointment of retired solicitors to
strengthen benches, the oniy practicable method of securing the redly
expert leadership which
is
desirable
is
the appointment of
a
paid
professional chairman for cach bench.
Ry
the establishment
of
a
system of circuits and by the re-arrangement
of
the days in which
Courts sit,
it
would be possible
for
each professional migistrate
appointed to take charge
of
several Courts.
This is not
a
new
proposal. It has been tentatively suggested from
time to time in the
pist
that every bench should contain at least one
competent lawyer,2B
and
Dr.
R.
M.
Jackson in his
Rfnchincry
of
.]uslice
ilz
Enghd
refers to tlir possibility
of
a
combination of paid and unpaid
magistrates.
I
am not
ai4:;.rc,
Ijowever, that the suggestion has been
discussed with
the
t1iorouglincs.s which it appears to me to deservr,
20
l?,id.,
pii:i.
(A
li
Report.
para.
66.
28
P.
18
and
Appendix
2.
l9
E.g.
by
llr.
I.eo
Page
in
Justice
of
the
Peuce,
and
by
Mr.
Ensor
in
the
work
already
cited
;
aiitl
~iwv
by
a
Conservative
Party
coinmittee.
THE
UNPAID
MAGISTRATE
AND
HIS
FUTURE
II
except pcrliaps
1)~.
31r.
I~iisur
wlio
iiiakt~s
;in
intcrcsting suggestion
based on the German Scliijften sj.stcni.
Objection
will
no
doubt
be
taken priucipally upon the score of
expense. Onc
of
tlic substantial arguinents
in
favour of the present
system
is
that it
is
clicap. Justice is
a
commodity of
so
fundamental
a
character in the State that considerations
of
economy ought not to
receive undue weight
in
discussions relating to its better administration.
Cheap justice
is
not necessarily bad justice, but is
so
too often. The
cost of providing
a
professional travelling chairman would, however,
add only a fraction
to
thr cost of the present system of Magistrates’
Courts, and would not cost more than the proposal to replace the
unpaid magistrates by stipendiaries which
I
have already examined.
It
would probably cost
less
than the main proposal of the Roche
Committee, which is the substitution of whole-time for part-time clerks.
The only other objection of substance which is likely to be made
is
that benches should be free to select their
own
chairmen. The election,
and more particularly the supersession, of the chairman as he gets past
his work is
a
matter which causes much difficulty and heart-burning
on benches. The seniority rule,
a
very bad one,
is
often adopted for
this very reason.3o My impression is that the majority of benches,
so
far
from feeling slighted
at
the appointment of a professional chairman,
would welcome
it,
if only because it relieved them of what is often a
difficult and irksome
Whether or not this proposal be adopted it is highly desirable that
steps should be taken to improve the legal competence of all unpaid
magistrates, and
if
it is not adopted then this reform should be regarded
as essential.
Magistrates have been exhorted for years past to devote time and
study to mastering the elements of law and procedure. Many of them
have always done
so.
It
is well known that Blackstone’s
Commentaries
was largely intended for the justices, and that
it
duly found its place
in the library of every country house, not infrequently to become
a
well-thumbed textbook. Many country gentlemen after leaving the
university have taken their call to the Bar with a view to qualifying
themselves for this very side of the work
of
a conscientious country
gentleman.
I
am afraid, however, that these are now a very small
fraction of the whole, whatever they may have been in the past.
The periodical, the
Justice
of
the Pcace,
together with its series of
reports, which are of much value, and later the formation of the
Magistrates’ Association with its broadly interesting bi-monthly,
The
Magistrate,
exist for the purpose of improving the competence of
The Roche Committee condemn this practice strongly (para.
213).
and the
Home Secretary in a subsequent circular to Chairmen
of
Petty Sessional Divisions,
has emphasised this part
of
the Report. The practice is one which will not easily
be eradicated, and this is not the first occasion
on
which the Home Office has
pronounced against it.
31
In
boroughs the mayor becomes chairman
virlule
oficii
:
a system
of
which
the Roche Committee say: “It
is
a matter
of
accident whether the bench obtains
a
suitable chairman (para.
217).
Indeed it
is
long
odds
against their doing
so.”
12
MODERN
LAW
REVIEW
March,
1945
Magistrates’ Courts. Many books have been written, both technicalg2
and of
a
broadly informative and suggestive character like that of
Mr. Leo Page, with the same objective. In his commendably frank
Foreword to this book Lord Roche says that justices should “try to
learn their work and do it better than it
is
now done,” otherwise they
cannot expect to retain the confidence of their fellow citizens; “the
less often benches act foolishly the better for the magistracy and for
the State.”
What can be done to solve this serious and real problem? General
exhortations and even reading lists such
as
that provided
by
Mr. Page
have
a
very limited effect. The suggestion which
has
been put forward
in certain quarters that all magistrates should be required to pass an
examination, would be much
more
likely to produce results, but it is
unrealistic. The busy middle-aged or elderly men and women, who are,
properly, selected for the office, neither could nor would pass examina-
tions. Even the idea that such people can be expected to master
elementary textbooks without guidance from skilled teachers is equally
unrealistic.
“A
little learning is
a
dangerous thing,” and perhaps
nowhere more
so
than in the realm of law.
I
do not think it unreasonable, however, to require a newly-
appointed magistrate to attend for two or three months
a
special course
of tuition in respect of his duties. The position, as has been pointed
out,
is
one
of
honour and responsibility which
is
much sought after
;
the recipient of it should be prepared to make some sacrifice to equip
himself to do the job efficiently. There would obviously
be
difficulty
in many cases in securing time
off
from employment, and in regard to
loss
of
earnings during attendance at courses.
The
State should,
however,
be
prepared to reimburse such
loss
within reasonable figures.
Justice has been the cheapest of the social services from the point of
view of the Budget of the State, and it is time it reccivcd
its
allocation
of the national expenditure under this head.
The practicability
of
such tuition
has
been proved by the numerous
and
highly successful courses run in conncction with Civil 1)cfence
bj-
the Ministry
of
Home Securit:,, and
bj,
other &pal-tmcnts in connection
with other war activities. These wcrc largely at tcndcd
bj.
middle-aged
men, many
of
them
of
the type chosen as magistrates. It was almost
always possible to arrange leave of absence from their employment.
The great majority of the men-and women-who attendcd
tlw
coiirses
clearly derived great advantage from the tuition, and practical work
provided.
Such
a
course would be both theoretical and practical. On the
theoretical side the broad principles
of
those branches
of
the law which
are administered in Magistrates’ Courts would
be
taugltt.
llie
elements
of legal procedure, and more particularly tlie main rulcs
of
evidence,
would be esscntial. For the practical application
of
thcsc principles
and rules
a
wide scrips
of
“moots” would be ncccssary.
~iiibliaht.tI
by
tlic
.\Tqistrates’
;\ssociation.
3?
Onr
may
mentioned
especially
~\’olcs
for
,VPW
.IIugish&,s,
II!,
(..
1
.WSOJI,
THE
UNPAID MAGISTRATE
AND
HIS
FUTURE
13
Particular attention should be devoted to the problem
of
punish-
ment.
It
is here that magistrates are particularly without guidance,
for the training of their clerk has not equipped him for this branch of
criminal administration, and even judges have stressed the difficulty
of this aspect
of
their work. McCardie,
J.,
is
said to have remarked
that trying a man is as easy as falling
off
a log compared with deciding
what to do with him when he has been found guilty. The majority
of judges, both professional and lay, are woefully ignorant of the work
which has been done in penology of recent years, or indeed at all.
They rely upon common-sense. But by dint
of
constant practice
stipendiaries develop an expertise which at any rate gives them an
advantage over the lay magistrate, who will often
go
for months
without having to consider problems of imprisonment, probation, et~.~~
As
Mr. Mullins says:* “before either
a
practising barrister or a
justice
of
the peace aspires to do judicial work with criminals he might
not unreasonably be expected to attend some lectures, and to read
some books on penology and psychology.” He ought also
to
get some
practical experience of what goes on
in
prisons, borstals, and approved
schools.3s The practical side of the penology part
of
the course ought
certainly to include visits to such institutions.
Finally, an attempt should be made to paint in the social back-
ground; the general conditions of society which lead to crime.
With a bench equipped
for
its work in this way36 there would be
much less danger of dominance by the clerk. In the absence
of
a
professional chairman, however, they would naturally and properly
continue to rely upon the expert advice of their clerk.
It
is therefore essential that the clerk should be adequately equipped
for his work. There has never been a hard and fast rule, however,
that the clerk shall in fact be a qualified lawyer; for a person who
has acted
as
assistant to a justices’ clerk for fourteen years may in
special circumstances be appointed, and a person who has acted as
clerk to
a
stipendiary for seven years
is
eligible. In the Metropolis
the clerks are appointed as a result of a special examination, and are
generally very competent, but are not necessarily lawyers. Moreover,
except under rare local Acts, the clerk’s deputy, who in his absence
assumes all his responsibilities, is not required by law to possess any
qualifications whatever.
It is not common to find a justices’ clerk who
is
not a lawyer acting
with unpaid magistrates,37 but it is obviously desirable that this should
be no longer possible. The Roche Committee recommends that a
professional qualification should become obligatory-the office
has
33
See on this aspect R.
C.
K.
Ensor,
loc.
cat.,
pp.
87-8.
36
A magistrate once told me that he had been asked by a fellow magistrate,
“What is this Borstal to which we
so
frequently send these prisoners?
”
adding.
“And he has been taking part in giving such sentences
for
years.”
The lay members
of
the inferior Courts in the U.S.S.R. are said to undergo
a course of this tvpe before taking up their work.
Yet more than
half
the existing whole-time clerks are not professionally
qualified.
a4 op.
Cif.,
p.
218.
14
MODERN
LAW
REVIEW
March,
1945
ceased to be that of
a
personal servant to the justices, and has become
a public one requiring the
imprimatur
of a proper public qualifica-
tion.38 In the case of the deputy, however, they
go
no further than
to recommend that the position should be recognised by the appoint-
ment of a standing deputy.
As
to his qualifications they make no
recommendation
;
but surely he should be properly qualified also.
It
should be possible to set up a panel of qualified deputies in each
county, or sub-county, from which
a
clerk could be drawn when
needed. The usual rule under which a justices’ clerk must not act
professionally in connection with business coming before his Court
could reasonably be suspended for members of the panel.
The major consideration, however, in the case of jcstices’ clerks
as at present appointed is that they are almost always solicitors in
private practice in the
town
where their bench sits.
As
has been
indicated there are certain restrictions upon the work which such a
.clerk may do,
in
particular he may not either personally, or by his
partner or clerk, act professionally in the Court of which he
is
clerk.
But there are many kinds of work which a clerk may undertake in
which his position may be of great advantage to him. The Roche
Committee draws attention particularly to licensing work, pointing
out that a clerk may undertake work for brewery companies and other
interested parties, and that such a position “must lead to
a
suspicion
of
bias and interest
on
his part.”30 They accordingly recommend that
he should be forbidden to undertake such
There are, however, serioiis objections of a general character to a
public office such as that into which the office of a justices’ clerk has
developed being held by a person in private practice.
It
is not only
that there are many cases which cannot be made the subject-matter
of
a
prohibition in which a conflict of interest may arise between the
clerk’s business interests and his public position
;
but it is no longer
in accord with public sentiment that public offices should be held
part-time by persons in private practice.
It
is
too much to expect
of
human nature that the private interest on which the man’s income,
and therefore in this country his social position, depends should be
invariably subordinated to his public duties which are accordingly
likely to suffer in efficiency, if not in still less desirable ways. The
public conscience
is
becoming more sensitive about these matters, and
”there can be little doubt that the existing duality of office which often
gives rise to criticisms
of
the action
of
individual clerks, is one
oC
:’*<
main factors in the
POGI’
regard in which the Magistrates’ Court
1-
cc’
often held.
As
the Homc Srcietary has pointed the situatiun is
parallel with that formerly cxisting
in
lucal government generally when
town clerks, treasurers, and other officials were often engaged in private
practice. The solution
is
that like other government officials the clerk
should become
a
whole-tine officer. In this way he would be lifted
Report,
para.
116.
Report, para.
85.
See
his
speech
to
the
Magistrates’
Association,
supva.
40
Ibid..
para
22.
THE
UNPAID
MAGISTRATE AND
HIS
FUTURE
15
above thr
local
biisinest;, and social intcrcsts which can ca~ise conflicts
of the t).pc dcscribcd.
Moreover,
as
111..
J.
Ii’ehster,
tlic
?’own Clerk
of
Kcnsington, points
out in an intcrcsting address to the Magistrates’ Association,42 the
profession
of
magist
rates’
clerk would then become a life-time carcer.
only
in this
way
lvi11
a
d!.namic concvption of
its
possibilitics be gained,
and
a
rcally expert
teap
of
such
clerks be obtained for the community’s
service. Among the whole-tinic clerks in thr Courts of the professional
magistrates
a
number of oiitstariding pcrsonalitics liavc already made
important contributions.
Tlic
part-timer,
on
thc other hand, is likcly
to devote his main attrntion to tlic building
up
of
his privatc practice.
In particular
tlic
wliole-time clerk
should
be able to acquire the
necessary knowlcdge and experience to be
a
real coiinscllor
to
his
bench in matters affrcting sentmccs.
As
tlic
Roche Committee point
out,
the clerk is secretary to tlre Probation Conimittcc
of
the justices,
and
his
“relation with the Probation Ofticer should be close and
sympathetic.” It is to be fcared that this state of affairs
is
by
no
mcans
always attaincd. Part-time clerks
who
have tlicir practices to look after
are not in
a
position to maintain the necessary liaison with probation
officers, nor to visit approved schools, borstals, or prisons. Nor can
they be expected to keep themselves up with the latest practices in
penology. With the rapid devclopmrnt of psychological methods of
penal treatment it bvcomes more and more important that the clerk
shall be able to provide his bench with informed advice in this branch
of
the work.
In the country districts and in small towns it is obviously not
feasible to apply this proposal for whole-time clerks
;
there
is
nothing
like
a
full-time job, and the expense
would
be out
of
proportion to the
gain. The Committee therefore propose a regrouping and amalgama-
tion
of
petty sessional divisions, which
I
have estimated above should
secure
a
reduction in the existing Courts
of
anywhere from a
half
to
two-thirds.43 Even after this has been done it will often not be practical
politics to appoint one clerk to each Court, and arrangements are
therefore recommended under which
a
clerk may serve more than
one division.
If
the Roche Committee’s proposals are adopted counties and
county boroughs of over
75,000
population will become the units of
grouping, and in some respects also of administration.
In
particular
the
Committee recommend that a new standing committee shall be
set
up
of representatives of each petty
sessional
division in the area,
which will become the employing authority
for
clerks, fix their salaries,
and also accept responsibility for the neccssary regrouping of divisions.
In
a
note of reservation Lord Schuster, who
was
for many years
Secretary to the Lord Chancellor, emphasises the need for entrusting
to
a
central authoritjr powers
of
initiation, where the local magistrates
(?
The
AIagistvatc,
h’ovember.
1944.
‘3
The
recommendation
involves
the abolition
of
separate
commissions
in
boroughs
of
less
than
25.000
population.
16
MODERN
LAW
REVIEW
March,
1945
are remiss in carrying through this very substantial and somewhat
onerous task.
I
think he is right in his contention.
Other important recommendations are made by the Roche
Committee which
I
have only space to refer to shortly.
The present system by which the locality meets the expenses
of
its
Court out of fines and fees is most unsatisfactory. Quite apart from
the many anomalies to which attention
is
drawn,44 there is one matter
of overriding importance. The system “involves the risk or may give
rise to the suspicion that the justices in fixing the fines might be
influenced by the desire to relieve the rates of the area concerned”
-the suspicion is widespread, and unfortunately in some cases is not
ill-founded.
It
plays its part in the discredit into which these Courts
have fallen. The Committee recommend that in future all fines and
fees should be paid
to
the Exchequer, and a new system
of
financing
the Magistrates’ Courts be brought into being.
The payment of the clerks
is
also
a
matter of considerable impor-
tance. Under the present system the clerk receives an all-over payment
to cover not only
his
personal remuneration but office, clerical, and
the other expenes in which his ofice involves him. This system has
long been a grievance with clerks. Under
it
the more soundly they
organise their justices’
work
the less personal salary is left to them,
and
indeed some complain that they are actually out of pocket.45 This
increases the temptation
to
concentrate on their private practices, and
in some cases the income from the justices’ work is treated as a sort
of subsidy to the latter. The Roche Committee strongly condemn the
system,
and
recommend that the clerk should receive a personal salary;
his out-of-pocket expenses being met independently.
Important recommendations are made for the improvement of the
Courts
and
the procedure.
In
particular it is
to
be hoped that the pro-
posal for
a
standing Rule Committee to advise the Lord Chancellor
will be carried into effect.
At
the present time there is no authority
able
to
deal with the procedure
of
the Courts. The Roche Committee,
which was appointed by the Home Secretary, naturally avoid a frontal
attack
on
this important issue, though they recommend that the Lord
Chancellor should become the rule-making authority.46 The present
situation
is
absurd. The Home Secretary has acquired his relationship
with the justices
as
a
result of his responsibility
for
police matters,
and though he has exercised it with discretion-perhaps too much
so-
it is obviously undesirable, as has been pointed out earlier, that the
judicial and police aspects of justice should be mixed up. We here
impinge upon
a
much wider problem, the problem of effectively
organizing the administration of justice which will have to be tackled
sooner
or
later, and which requires as a primary and fundamental
stage in its solution the setting up of
a
Ministry
of
Justice. The Lord
Chancellor’s Department has of recent years shown signs of developing
See Chapter
VII.
Report.
paras.
220-229.
I6
For some
of
the scandalously
small
salaries
paid,
see
Report,
para.
17’.
THE UNPAID MAGISTRATE AND
HIS
FUTURE
17
into such
a
Ministrj-. Tlirre
is
accordingly
a
strong case for transferring
full responsibility
for
the supervision
of
the Justices' Courts to him,
especially as he
is
already the authority for appointment and dismissal.
The Roche Committee also do not tackle the problem of the Court
of Quarter Srssions. These Courts now, for the most part, have
professional chairmen and dcputics. Undcr the Administration
of
Justice (Aliscellaneous Provisions) Act,
19-38,
they lose part of their
jurisdiction if they do not obtain such appointments: an indirect
method of ensuring a needed reforin. They also
now
deal with appeals
through appeal committees, instcad of by the wholc bench,
a
pro-
cedure which was occasionally something
of
a public scandal
(Summary Jurisdiction Appeals Act,
1933).
These reforms are good
so
far
as
they
go.
The Court of Quarter
Sessions, however, rcmains something of
an
anomaly. In particular
it
is
not properly integrated with the Assize Courts, and the time has
come for a thorough reorganisation and integration.
If
a
system
of
professional chairmen was instituted it would be possible to hold the
Quarter Sessions monthly, or even in the more populous counties keep
it
in constant session, and thus obviate the very real hardship involved
in committal for trial often taking place some months before the trial
can be held. This, however, is too large
a
subject for consideration at
the end of
a
long article.
If
I may attempt to sum up thc whole matter in a page
I
should
say that short of revolutionary changes of
a
fundamental character
in the structure of society, the system of unpaid magistrates is too
deeply rooted for there to be any measurable prospect of
its
abolition.
That there is widespread discontent with it
is
obvious. In order,
therefore, to prevent
its
remaining a social irritant there must be
thorough-going reform.
So
reformed
I
think it would provide
a
good,
and possibly the best practicable, tribunal for the particular sort
of
work which is entrusted to it.
In my view it is desirable that
as
many citizens as possible should
be associated with the administration
of
justice. It is educationally
valuable that they should have some practical experience of the
working of the machine, and for this reason
I
deplore the gradual
atrophy
of
the jury system which
is
taking place. We are too apt to
consider technical efficiency as the only criterion in the administration
of justice. At a time when it was under much hostile criticism at home
the British system of unpaid magistrates evoked considerable admira-
tion abroad, where its complete independence of the executive made a
strong appeal. In Russia, during the period of liberal reform in the
middle years of the last century, not only the jury system, but the
unpaid magistrate, was introduced. But other countries have had legal
institutions involving the
use
of amateur judges or assessors which
are commonly reported to have worked well, and to have been held
locally in high regard. Reference may be made particularly
to
the
Schoffen
in
Germany.4'
''
R.
C.
K.
Ensor,
op.
rat,
p.
68.
2-1
8
2
18
MODERN
LAW
REVIEW
March,
1945
A
man
of
experience in the affairs of the world at large
is
excellent
material out
of
which to fashion a really good judge on questions of fact
;
much more so than the lawyer who has spent
all
his life in Chambers
and Courts.*s The trouble is that we have
so
far taken
SO
little pains
to see that this material is properly uscd. Maybe the Report of the
Interdepartmental Committee indicates that
a
new era will open.
R.
S.
T.
CHORLEY
48
An
experienced County Court Judge. who
is
also
a
magistrate. is reported in
The
Justice
of
the
Peace,
CXVIII,
p.
158.
to
have said:
“So
long
as
they have
someone to keep them straight
on
the law
a
mixed bench is much more likely
to
do fair justice than one lawyer however good
a
lawyer he may be.”
ANOTHER
JOB
FOR JURISPRUDENCE
N
the first issue of the
MODERN
LAW REVIEW, Felix
S.
Cohen began
his paper on the subject “The Problems
of
Functional Jurispru-
dence
”
with the conciliatory but doubtful suggestion that functional
jurisprudence could be defended
“
without attacking the doctrines or
the achievements”
of
any other school.1 This generous gesture
of
concord directed to antagonistic schools of juristic thought will not
stand up under examination to-day. Indeed it was highly questionable
when
it
was first penned in
1937.
Mr. Cohen’s provocative article
“Transcendental Nonsense and the Functional Approach which
was then in print and the present writer’s criticisms of this paper,3
disclose the jural chasm which separates the conceptual and the prag-
matic jurist, the transcendentalist and the functionalist, the scholastic
and the realist.
This
gulf which divides jurisprudential scholars into two camps*
is clearly depicted in the pages
of
C.
P.
Harvey’s scholarly paper
“A
Job
For
Jurisprudence” in the April,
1944,
issue of the
MODERN
LAW
REVIEW.
To strike the keynote of
Mr.
Harvey’s interesting
article, preliminary to
a
more critical examination, he implores the
“academic jurist” to come down from his heaven of legal concepts
and to deal with concrete problems in the law.6 He urges the concep-
tual scholars to fnrego the study of Year Books and deplores research
I
’
(1937)
I
MOD.
I-.
17.
I.
(1935)
35
Col:tm!,ri
I.QW
Re~iCw
809.
3
Kennedy,
”
FIII:~
\i,~al
Sonsense and the Transcendental
Approac;.
”
w
273
:
“More Functional
Nonsense-.\
Rep:
..
.
;.&rani
Lam
Revi~w
7j.
See
also
Mr.
Cohen’a
I’,
;;,\
jb.
Is
flip
two
attitudes of
legal
thinking- “the fundamental
and the scipntific.”
”
LAW
anLearnirlz ‘I‘hemy Throngh the Looking
Glass
of
Legal Theory”
(1944)
j3
Yafc
!.?.s:
jotwna/
3
j8.
Compare Kennedy.
My
Phi!nso-
phy
ofLaw
(1941)
147-160.
Both
Mr.
Cohen and
Jlr.
Harvey
are insirtent upon
a
down-to-earth
appraisal
of
law,
a
descent
frrmi
ttic
“heaven
of
legal concepts,”
a
juristic dive
to
”the pedestrian
lcvcl
of daily
IIIC.”
The same general criticisms used against
Blr.
Cohen (note
3)
may
be
repeated
ngaicst
RIr.
Harvey’s
critique
of
the common
law with the addition of ncw material suited
to
the fresh approach made bv
blr.
Harvey
in
his current article.
1
*tm
REVIEW
548
;
(1936)
6
Foidhani Law
R<1’ici*.
To continue reading
Request your trial