THE DIFFERENCE OF MAN AND THE DIFFERENCE IT MAKES by Mortimer J. AdlerReview by: Andrew W. ParnellAmerican Bar Association Journal, Vol. 54, No. 6 (JUNE 1968), pp. 593-594Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25724442 .

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Books

for

Lawyers

Privacy and freedom. by Alan F. Westin. Atheneum Publishers, 122 East 42d Street, New York, New York 10017. 1967. $10.00. Pages 487. Reviewed by Robert F. Drinan, S./., dean of Boston College Law School.

The ever-increasing invasion of pri

vacy by electronic devices makes this

study one of the most significant books of the century on the meaning of the First and Fourth Amendments. Its au

thor, a lawyer and a distinguished pro fessor of political science at Columbia

University, has taken a meticulously balanced position which, he argues with cogency, protects freedom and

privacy.

Privacy is defined by Professor Wes tin as "the claim of individuals, groups or institutions to determine for them selves when, how and to what extent information about them is communi

cated to others". The intrusions on this claim to privacy come from various

types of surveillance by which informa tion about a person's inner psychology is recorded and disseminated without his knowledge or consent. The forms of this type of surveillance, employed by government and by industry, involve

listening and watching devices, poly graphs, "truth serums", computerized data and several other techniques by which the walls and doors of personal privacy have been pierced.

What legal and constitutional protec tion exists or should exist to protect both the legitimate needs of privacy and the requirements of disclosure? Professor Westin feels that an amend ment to the Federal Constitution is not

required because the First Amend ment's guarantees of free speech and

assembly were intended to secure what

Justice Joseph Story described as the

rights of "private judgment". He in cludes an analysis of the protections of

privacy in the Fourth and Fifth Amendments of the Bill of Rights in his study but seems to feel that the First Amendment has more potential as a guarantee against an invasion of pri vacy than do the other amendments.

The author is not, however, content to wait for litigation in the United States Supreme Court to define the metes of the right to privacy. He pro poses a federal statute (which could be enacted at the state level with appropri ate modifications) which would seek to achieve four basic purposes: (1) pro hibition by government officials of un

reasonable surveillance by technologi cal devices; (2) the establishment of

legal norms for legitimate private use of eavesdropping devices; (3) a sys tem of court-controlled use of listening or recording instruments by law-en

forcement officials in limited cases; and (4) various remedies available to those whose private lives have been in vaded because of noncompliance with the pertinent statutes. This proposed federal and state law is necessary be

cause in Professor Westin's language, "The right to speak, to publish, to wor

ship and to associate cannot survive in the modern age of scientific penetra tion of house, auto, office and meeting room unless the courts and public mores install a curtain of law and prac tice to replace the walls and doors that have been swept away by the new in struments of surveillance."

Other legislation proposed by Pro fessor Westin includes the establish

ment of a Public Employees Right of

Privacy Act which would forbid the use of personality and polygraph tests as techniques for the selection or pro motion of personnel, and the develop ment of legislative standards and ad ministrative codes to protect the pri vacy of personal information in gov ernment files.

Professor Westin's position in this

truly splendid study cannot be catego rized as either "conservative" or "lib

eral". The fact is that on the issue of

privacy there is no one who does not see the ongoing erosion of the islands of privacy as a threat to contemporary man. One of the many virtues of Pro fessor Westin's book is that it furnishes

practical and philosophical reasons

why liberals and conservatives should work together to draw precise lines over which the snoopers, public or

private, should not be allowed to pass. While Privacy and Freedom is the

work of Professor Westin, the volume was sponsored by the Special Commit tee on Science and Law of The Associa tion of the Bar of the City of New

York. This farsighted committee, under the chairmanship of Oscar M.

Ruebhausen, surely deserves commen

dation for a study which is a model of

creative scholarship on a legal-moral

dilemma of incalculable significance. ?Robert F. Drinan, S.J.

The DIFFERENCE OF MAN AND the DIFFERENCE it MAKES. By Mortimer J. Adler. Holt, Rinehart and

Winston, Inc., 383 Madison Avenue, New York, New York 10017. 1967.

$7.95. Pages 394. Reviewed by Andrew

June, 1968 Volume 54 593

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Books for Lawyers

W. Parnell, Judge of the Tenth Judicial Circuit of Wisconsin (Appleton) and member of the Advisory Board of the

Journal.

A philosopher takes a fresh look at two of man's age-old questions?what are human beings and where did they come from?

The approach is a careful examina tion and interpretation of ancient and modern viewpoints on the subject of human origin in the light of the most recent scientific and historical re

search. New knowledge is thrown into fresh combinations and subjected to the critical assessments of philosophi cal argument. Seventy pages of notes attest to the thoroughness of the au thor's research.

Mr. Adler recognizes that he is ask

ing questions in a manner to which

many a reader may not have been ex

posed since his undergraduate days. To

sharpen differential sensitivity, he takes the reader through a refresher course in logic on the subject of differ ences. There are differences in degree and differences in kind, and if in kind, superficial differences in kind and radi cal differences in kind.

Speech is the pivotal faculty that

distinguishes man from other animals, and language and thought are the piv otal issues. But are these differences in

degree, superficial differences in kind, or radical differences in kind? Argu ments advanced through the ages are

reappraised and reapplied. The philos ophers with their logic, the naturalists with their plants and animals, the biol

ogists with their species, the paleoan thropologists with their fossils and ar

tifacts, the psychologists with their be havior and the theologians with faith all are lined up according to their simi larities and differences.

The subject is timely in the year of human rights, for it bears on basic

legal concepts. If lower forms differ

only in degree, should they be afforded certain rights which are now denied them? Are our notions of property, na tionalism and war instinctive or ac

quired? How do these notions square with the notion of "inherent" rights?

The book is an exercise in problem solving, in the technique of analyzing disagreements and in making compari sons. By subjecting conclusions to crit

ical examination, the author squeezes the water out of some of the claims, re conciles others where reconciliation

seems impossible, and illustrates how classification and subclassification be come material. The distinction makes the difference which makes the divi sion.

So far, the scholars have not tucked under all of the loose ends. Nor does the author himself attempt to provide the answers. His claims are limited to

providing a basis for understanding and criticizing, for sifting the evidence.

The scientific evidence is far from all in, and it may never be all in. Theo ries long accepted as axiomatic have

recently been shaken by new scientific discoveries. Research notwithstanding,

however, the metaphysicists seem to be

holding their own, even though they have no laboratory. In the words of Dr. Adler's contemporary, Bertrand

Russell, "No matter how eloquent a

dog may bark, he cannot tell you that his parents were poor but honest."

?Andrew W. Parnell

HE ITALIAN LEGAL SYSTEM. By Mauro Cappellette, John Henry Merryman and Joseph M. Perillo. Stanford University Press, Stanford, California 94305. 1967. $10.00. Pages 462. Reviewed by Gerald L. Sbarboro

of the Illinois Bar (Chicago). "This is the first book in any lan

guage to provide a basis for under

standing the essential features of Ital ian law", claims the book jacket. The claim is justified. Moreover, the vol ume is uncommonly interesting techni

cally, historically and as a comparative analysis of a civil law, as opposed to common law, system. It covers the more than twenty-four centuries during which the Italian civil law system has

developed to its present state. The book has chapters devoted to

government, civil procedures and evi

dence, and to the Italian style as to

doctrine, law and interpretation. But

perhaps the most enjoyable and benefi cial reading for the American lawyer is contained in Chapter 3, which is de voted to the Italian professionals. The reader will discover that in Italy the

concepts of the profession are quite distinct from ours. These concepts are

best typified by the fact that the title of

professor is more coveted and prestig

ious than that of judge. It is a profes sion in which partnerships are not per

mitted, contingent fees are forbidden and it is a violation of professional eth ics to charge less than the accredited fee as set by the profession.

Judicial candidates must be between the ages of 21 and 30, engage in com

petitive examinations and serve an ap

prenticeship of two years in a prosecu tor's office prior to admission to the Bench. There is an independent Bench and an independent Bar, both removed from politics and so strictly regulated that lawyers and judges are not permit ted to be members of the same profes sional associations. The lawyer's role

in the courtroom is limited, and the

judge rather than the advocate con

ducts the examination of witnesses.

Though it is a profession in many ways enigmatic to the American practi tioner, it is highly revered and re

spected within its borders. The book, though crowded with in

formation, permits one to leap back and forth across the Atlantic with ef fortless ease. It reveals to the reader the succeeding influences upon the civil law of important events, movements,

institutions and persons generally thought to be extraneous to the com

mon law. It is a volume which will fur ther "bridge the gulf between two halves of the legal world"?perhaps the major task of the present genera tion of lawyers.

?Gerald L. Sbarboro

Private international law (General Part). By Albert A. Ehren

zweig. Oceana Publications, Inc.,

Dobbs Ferry, New York 10522. 1967.

$14.00. Pages 293. Reviewed by Harry H. Almond, Jr., of the New York Bar and of Gray's Inn, London, barrister at-law.

The question foremost in my mind when I read through this book was to whom is the book addressed?law stu

dents, practicing lawyers or the "com

munity of scholars"? This is a treatise that draws upon great learning and as

such is a delight for the scholar, but

perhaps the main reason for a limited

readership lies in the highly condensed

594 American Bar Association Journal

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