the scottish juristsby david m. walker

4
Editorial Committee of the Cambridge Law Journal The Scottish Jurists by David M. Walker Review by: Peter Stein The Cambridge Law Journal, Vol. 46, No. 1 (Mar., 1987), pp. 165-167 Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law Journal Stable URL: http://www.jstor.org/stable/4506988 . Accessed: 12/06/2014 22:12 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating with JSTOR to digitize, preserve and extend access to The Cambridge Law Journal. http://www.jstor.org This content downloaded from 62.122.76.48 on Thu, 12 Jun 2014 22:12:08 PM All use subject to JSTOR Terms and Conditions

Upload: review-by-peter-stein

Post on 15-Jan-2017

213 views

Category:

Documents


1 download

TRANSCRIPT

Editorial Committee of the Cambridge Law Journal

The Scottish Jurists by David M. WalkerReview by: Peter SteinThe Cambridge Law Journal, Vol. 46, No. 1 (Mar., 1987), pp. 165-167Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506988 .

Accessed: 12/06/2014 22:12

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.

http://www.jstor.org

This content downloaded from 62.122.76.48 on Thu, 12 Jun 2014 22:12:08 PMAll use subject to JSTOR Terms and Conditions

Book Reviews Book Reviews

Scientific Holdings "for a discussion of the consequences of fusion"; there is a similar statement at p. 74; at p. 92 Verralls v. Great Yarmouth Borough Council [1981] Q.B. 202 is cited (correctly, of course, but with apparent approval) for the proposition that: "Since the fusion of law and equity it [is] the duty of the court to protect by injunction or specific performance any interest in or over land, whether it [is] a freehold estate or a mere licence, when appropriate to do so"; and similar comments may be found on p. 7. To ask that those who assert that law and equity are fused should explain what they mean, how it happened and what follows from it is not merely to indulge an idiosyncratic belief that things were better before 1873 or, still less, to suggest that law and equity then became incapable of future development (see P. V. Baker, The Future of Equity (1977) 93 L.Q.R. 529). Sadly, the authors, like their numerous predecessors (including, it is suggested, their Lordships in United Scientific Holdings) do not offer any such explanation.

Leaving aside the questions, what is meant by "fusion" and how did it come about: in what sense could "fusion" (or for what reason would it) promote a tendency to substitute "inappropriate" for "inadequate" in the traditional formula about damages? One is still assessing the effect, and efficacy, of the legal remedy, in the particular case, as a step towards the decision whether the equitable remedy should be granted. Similarly, how is fusion an explanation of any tendency to reduce the number of cases where, though specific performance may not be had, damages may? Presumably it is not suggested, for instance, that unclean hands or laches are a defence to an action for damages. And why does fusion strengthen the case for (let alone of itself require) the enforcement in specie, by injunction or specific performance, of a contractual licence in a case where damages are inadequate and it can be demonstrated that the (specific) remedy is not in vain? Simple assertion (particularly where what is asserted has by no means a clear meaning) does not promote the rational or coherent evolution of principle (it should be said that mere assertion is not, except on the subject of fusion, a characteristic of this book). An Australian reviewer may be permitted the additional comment that the common law and equity, as administered in New South Wales (where they were administered separately until 1970), did not that year lurch into harmony with the rules and principles applied in the other states (where "fusion" occurred a good deal earlier).

Perhaps the answer will appear in the next edition. Meantime, this is a text which is bound to be a primary reference point for all lawyers (practising and academic) involved in the field which it covers.

J. R. F. LEHANE.

The Scottish Jurists. By DAVID M. WALKER. [Edinburgh: W. Green & Son Ltd. 1985. xv, 440, (Appendices) 9, (Bibliography) 16 and (Index) 26 pp. Hardback £39-00 net.]

THIS is the first comprehensive study of Scottish legal literature and it is the work of an author who is himself probably the most prolific contributor to that literature in history. The relatively small number of decided cases in Scots law by comparison with English law means that there are many areas in which there is little judicial authority; hence the Scottish emphasis on principles rather than on detailed rules and the special prominence given to "doctrine" in

Scientific Holdings "for a discussion of the consequences of fusion"; there is a similar statement at p. 74; at p. 92 Verralls v. Great Yarmouth Borough Council [1981] Q.B. 202 is cited (correctly, of course, but with apparent approval) for the proposition that: "Since the fusion of law and equity it [is] the duty of the court to protect by injunction or specific performance any interest in or over land, whether it [is] a freehold estate or a mere licence, when appropriate to do so"; and similar comments may be found on p. 7. To ask that those who assert that law and equity are fused should explain what they mean, how it happened and what follows from it is not merely to indulge an idiosyncratic belief that things were better before 1873 or, still less, to suggest that law and equity then became incapable of future development (see P. V. Baker, The Future of Equity (1977) 93 L.Q.R. 529). Sadly, the authors, like their numerous predecessors (including, it is suggested, their Lordships in United Scientific Holdings) do not offer any such explanation.

Leaving aside the questions, what is meant by "fusion" and how did it come about: in what sense could "fusion" (or for what reason would it) promote a tendency to substitute "inappropriate" for "inadequate" in the traditional formula about damages? One is still assessing the effect, and efficacy, of the legal remedy, in the particular case, as a step towards the decision whether the equitable remedy should be granted. Similarly, how is fusion an explanation of any tendency to reduce the number of cases where, though specific performance may not be had, damages may? Presumably it is not suggested, for instance, that unclean hands or laches are a defence to an action for damages. And why does fusion strengthen the case for (let alone of itself require) the enforcement in specie, by injunction or specific performance, of a contractual licence in a case where damages are inadequate and it can be demonstrated that the (specific) remedy is not in vain? Simple assertion (particularly where what is asserted has by no means a clear meaning) does not promote the rational or coherent evolution of principle (it should be said that mere assertion is not, except on the subject of fusion, a characteristic of this book). An Australian reviewer may be permitted the additional comment that the common law and equity, as administered in New South Wales (where they were administered separately until 1970), did not that year lurch into harmony with the rules and principles applied in the other states (where "fusion" occurred a good deal earlier).

Perhaps the answer will appear in the next edition. Meantime, this is a text which is bound to be a primary reference point for all lawyers (practising and academic) involved in the field which it covers.

J. R. F. LEHANE.

The Scottish Jurists. By DAVID M. WALKER. [Edinburgh: W. Green & Son Ltd. 1985. xv, 440, (Appendices) 9, (Bibliography) 16 and (Index) 26 pp. Hardback £39-00 net.]

THIS is the first comprehensive study of Scottish legal literature and it is the work of an author who is himself probably the most prolific contributor to that literature in history. The relatively small number of decided cases in Scots law by comparison with English law means that there are many areas in which there is little judicial authority; hence the Scottish emphasis on principles rather than on detailed rules and the special prominence given to "doctrine" in

C.L.J. C.L.J. 165 165

This content downloaded from 62.122.76.48 on Thu, 12 Jun 2014 22:12:08 PMAll use subject to JSTOR Terms and Conditions

166 The Cambridge Law Journal [1987]

the sense of systematic exposition of the law. Scots law distinguishes between "institutional writers," a select few to whose works (not necessarily entitled

institutes) the courts have accorded an authority equivalent to dicta in the House of Lords, and ordinary commentators, whose works may be cited for what they are worth.

In the present work Walker deals with every Scottish legal writer of

significance and distinguishes between major and minor jurists. The former each get a chapter to themselves, whereas the latter are lumped together in a

chapter for each century. Pre-sixteenth century writers are all anonymous and are dealt with in a chapter on "The early jurists." This is mainly devoted to

Regiam Majestatem, a Scottish version of Glanvill, whose mysteries are hardly dispelled by the treatment. For example, if Walker accepts my demonstration that all the Roman-Canonical passages inserted into the Glanvillian material are derived from Goffredus Tranensis, as he appears to do, why does he mention resemblances and parallels with Azo, Tancred, Raymond and Hostiensis? Such references tell us something about Goffredus' sources but

nothing about those of Regiam. Of the 21 named "major jurists," seven are

generally agreed to have institutional status: Craig, Stair, Mackenzie, Bankton, Erskine, Bell and Hume (the latter for criminal law only). The extent of the treatment accorded to each major jurist varies considerably, Stair

receiving 52 pages, but Sir John Rankine, author of The Law of Land Ownership in Scotland, getting barely one and a half, less indeed than Adam Smith, who is discussed as a minor jurist.

We are usually given full details of the life and career of the subject, a summary and analysis of his main works and an indication, based on dicta in reported cases, ofthe precise degree of their authority. In most cases there is a wealth of genealogical detail on both the ancestry and the descendants of the subject, and the way in which a high level of legal expertise can persist in a

family for many generations (particularly in the case ofthe Dalrymples) is well brought out. These details also show how interlocked by family connection were the leading legal families and thus how closely knit was the elite group that dictated the course of Scots law. For certain major jurists, however, relatively little such data is given. Thus on Bankton, a rather illusory figure, we are told only that his career was "rather uneventful," although he was married five times.

Everyone will naturally have his own list of major jurists, but most of those in Walker's list choose themselves. The only case that I find odd is the inclusion of Sir David Dalrymple, Lord Hailes. Admittedly he was a writer of substance (and incidentally a great-grandson of Stair), but his writings were mainly of an antiquarian character, and in that category are hardly comparable to the work of Thomas Thomson and Cosmo Innes, the great records scholars of the early nineteeth century.

The work is packed with accurate information and will be invaluable as a work of reference, not only for scholars but also for practitioners who find an opinion in their favour and want to know its precise authority. Each chapter is a separate essay and there is little comparison of the major jurists with each other and little general assessment of the course of Scottish juristic writing. Occasionally the author gives us his own opinion, which is welcome, but often does not explain it. Thus, when quoting Lord Cockburn's opinion that Bell was "the greatest legal writer in Scotland next to Stair" (p. 338), he appends a footnote, "this is unfair to Erskine," without any further elucidation. (The footnotes incidentally are difficult to find, since they are collected in blocks of

This content downloaded from 62.122.76.48 on Thu, 12 Jun 2014 22:12:08 PMAll use subject to JSTOR Terms and Conditions

Book Reviews Book Reviews

99 at the end of each chapter, so that in the case of Stair there are no less than four series of notes with the same numbering). Walker himself is perhaps unfair to Adam Smith, when he criticises his Lectures on Jurisprudence as "defective in historical perspective" (p. 289) in failing to indicate the stages of development of the particular systems, from which he draws his examples, when his aim was to demonstrate that fundamental legal institutions of any system vary according to the stage of economic development of the society in question.

The work will be a welcome source of enlightenment to readers outside Scotland, although some may be baffled by such Scotticisms as "cess" and "stent" (both forms of tax).

PETER STEIN.

The Morality of Freedom. By JOSEPH RAZ. [Oxford: Clarendon Press. 1986. ix, 429 and (Index) 5 pp. Hardback £30-00 net.]

LIBERTY occupies a special place in our scheme of values. Yet the deep philosophical basis of our concern for liberty remains obscure. Is liberty valuable in itself, or is it valuable only instrumentally, for the good consequences that flow from it? What does liberty have to do with individual rights? Does the concern for liberty rest on moral scepticism, or on an exclusion from the political realm of perfectionist claims about the good life? Questions such as these have long formed a central focus of attention for jurisprudence and political theory.

In his latest book, Raz seeks to explore the morality which underpins our concern for liberty. In 400 pages of densely packed argument, he casts a cool and perceptive eye over a wide range of issues, and skilfully undermines a number of popular assumptions about the relationship between liberty and rights, individualism and perfectionism.

The starting point for Raz is in what he calls the "revisionist" challenge. The revisionist argues that liberty is not of intrinsic value: our concern for liberty merely expresses a deeper concern for some other value such as equality or welfare. The revisionist can appeal to the fact that not all liberties are treated as being of equal worth: freedom of speech counts for more than the freedom to eat green ice cream. If some liberties count for more than others, how can liberty be a basic value in itself? While accepting the need to discriminate between different liberties in terms of their importance, Raz seeks to resist the revisionist attack. What is needed, he believes, is an account of the value of liberty which itself casts light on our judgments about the varying importance of different aspects of liberty. Some readers may share my feeling that Raz proceeds a little too quickly at this point. Is it really so obvious that liberties vary in importance? The free speech/ice cream example might suggest that the answer is "yes," but here we might employ Raz's own distinction between core and derivative rights (p. 168) in the form of a distinction between core and derivative liberties. We would then say that the freedom to eat green ice cream derives from a core liberty to control our own diet. I for one feel that the latter liberty is every bit as important as freedom of speech.

Raz examines the idea that perfectionist considerations of the good can be excluded from politics, and that this exclusion forms the basis of our concern

99 at the end of each chapter, so that in the case of Stair there are no less than four series of notes with the same numbering). Walker himself is perhaps unfair to Adam Smith, when he criticises his Lectures on Jurisprudence as "defective in historical perspective" (p. 289) in failing to indicate the stages of development of the particular systems, from which he draws his examples, when his aim was to demonstrate that fundamental legal institutions of any system vary according to the stage of economic development of the society in question.

The work will be a welcome source of enlightenment to readers outside Scotland, although some may be baffled by such Scotticisms as "cess" and "stent" (both forms of tax).

PETER STEIN.

The Morality of Freedom. By JOSEPH RAZ. [Oxford: Clarendon Press. 1986. ix, 429 and (Index) 5 pp. Hardback £30-00 net.]

LIBERTY occupies a special place in our scheme of values. Yet the deep philosophical basis of our concern for liberty remains obscure. Is liberty valuable in itself, or is it valuable only instrumentally, for the good consequences that flow from it? What does liberty have to do with individual rights? Does the concern for liberty rest on moral scepticism, or on an exclusion from the political realm of perfectionist claims about the good life? Questions such as these have long formed a central focus of attention for jurisprudence and political theory.

In his latest book, Raz seeks to explore the morality which underpins our concern for liberty. In 400 pages of densely packed argument, he casts a cool and perceptive eye over a wide range of issues, and skilfully undermines a number of popular assumptions about the relationship between liberty and rights, individualism and perfectionism.

The starting point for Raz is in what he calls the "revisionist" challenge. The revisionist argues that liberty is not of intrinsic value: our concern for liberty merely expresses a deeper concern for some other value such as equality or welfare. The revisionist can appeal to the fact that not all liberties are treated as being of equal worth: freedom of speech counts for more than the freedom to eat green ice cream. If some liberties count for more than others, how can liberty be a basic value in itself? While accepting the need to discriminate between different liberties in terms of their importance, Raz seeks to resist the revisionist attack. What is needed, he believes, is an account of the value of liberty which itself casts light on our judgments about the varying importance of different aspects of liberty. Some readers may share my feeling that Raz proceeds a little too quickly at this point. Is it really so obvious that liberties vary in importance? The free speech/ice cream example might suggest that the answer is "yes," but here we might employ Raz's own distinction between core and derivative rights (p. 168) in the form of a distinction between core and derivative liberties. We would then say that the freedom to eat green ice cream derives from a core liberty to control our own diet. I for one feel that the latter liberty is every bit as important as freedom of speech.

Raz examines the idea that perfectionist considerations of the good can be excluded from politics, and that this exclusion forms the basis of our concern

C.L.J. C.L.J. 167 167

This content downloaded from 62.122.76.48 on Thu, 12 Jun 2014 22:12:08 PMAll use subject to JSTOR Terms and Conditions