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Arnheim (ed.) Common Law

International Library of Essays in Law and Legal Theory - Dartmouth, 1994,

Hardback, stg. 90. ISBN: 1 85521 391 5

Reviewed by Peter Luther

Lecturer in Law, University of Essex. E-mail: petel@essex.ac.uk

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This book poses particular problems for a reviewer. In common with other similar volumes produced by Dartmouth Publishing, it is intended, in the words of Series Editor Tom D. Campbell, to "provide important research materials in an accessible form". With the exception of the editor Michael Arnheim's 15-page introduction, all the material in this volume has previously appeared in legal journals. The essays reproduced here (a full list is given at the end of this review) span a period of just over 30 years: the earliest contribution (by A W B. Simpson) was published in 1957, the latest (essays by J W. Harris and S L Hurley) appeared in 1990. This considerable time-span is matched by the editor's wide brief: the volume falls within the sub-series "Legal cultures", which - again to quote the series editor - "makes available the distinctive legal theories of different legal traditions and takes up topics of general comparative and developmental concern". The editor of this collection, perhaps wisely, does not attempt explicitly to define the "distinctive legal theories" of the common law, and a glance at the list of articles he has included will show the wide variety of approaches and methodologies which scholars have used. These range from the historical (Milsom's broad survey of medieval law) to the economic (analyses of the common law's efficiency by Priest and Rubin), from detailed analysis of cases (Atiyah, Ferguson) to enunciation of general principles of jurisprudence (Fletcher, Raz). Turning from methodologies to topics, there is much analysis of the role of Parliament (Allan, Allott, Winterton) and of statute law (Atiyah), and still more of the doctrine of precedent and its application (Alexander, Ferguson, Harris, Hurley, Perry, Schauer). To attempt to comment in detail on the substance of such diverse contributions, some of which have already been subjected to rigourous analysis by a generation of scholars, would not merely be presumptuous but would require far more time and space than even the relaxed medium of electronic publication can afford. This review therefore concentrates primarily on the "mechanical" aspects of the volume - the way in which the editor has selected his material, and the way in which he presents and introduces it.

The editor's introduction is something of an oddity. Michael Arnheim starts by taking the courts to task for their unpredictability, supporting this by a detailed analysis (more than four pages) of the case of Ogwo v Taylor [1987] 1 All ER 668; [1987] 3 All ER 961. He then rebukes English judges and lawyers for (among other faults) a "tendency to ignore basic principles". Again there is a detailed (and indignant) analysis of a case, this time Wood v Smith [1991] 3 WLR 514; [1991] 2 All ER 939. Academics are, it appears, to blame as well: "The real problem ... is not that the common law is lacking in clear principles, but that these principles are no longer taught at university or law school and also are no longer applied by the courts". This insistence on the importance of "principles" as evidenced by maxims is an oddly "civilian" approach for the editor of a volume of essays on common law to take, and is scarcely supported by an inspection of those principles which he alleges that academics and judges have ignored. In the particular context of Wood v Smith he cites three. The first two are Latin maxims: Omnia praesumuntur rite et solemniter esse acta and Benigne faciendae sunt interpretationes ut res magis valeat quam pereat; et verba intentioni, non e contra, debent inservire. Two possible objections can be raised here. The first is that Sir Edward Coke's readiness to coin such "ancient maxims" (and both Arnheim's examples are cited from Coke) is well documented. In doing so, Coke was in many cases not distilling the wisdom of the ages, but attempting to conceal a new departure behind a veneer of scholarship. The second objection is more fundamental. Even if Coke (or whoever coined any particular maxim) was "right", in the sense that the maxim reflected the previous approach of the courts, it would be against the very notion of a common law legal system if such a maxim were to become so entrenched that it prevented all further development. The final principle cited by Arnheim, precedent, can scarcely be said to be ignored by courts or teachers of law. Michael Arnheim shows that in his chosen context the court failed to consider a dictum from a nineteenth century case, which may or may not have been relevant to the facts of the instant case. But this does not show that courts generally are disregarding the doctrine of precedent, merely that in one particular case a particular precedent was overlooked by a particular court. His evidence scarcely supports his general statement. Up to this point the introduction seems set fair to become a polemic, but Arnheim then changes tack. First he reviews Eisenberg's The Nature of the common law. Then he proceeds to a summary description and critique of some (by no means all) of the articles he has chosen for his collection. The only one he covers at length is R B Ferguson's elegant attempt to test the ideas of Horwitz et al. by applying them to English sale of goods cases. Arnheim rejects this absolutely: English and American cases are not comparable, he says, and even if they were then Ferguson has chosen the wrong cases (because of the peculiar nature of sale of goods law) on which to base his analysis. This prompts an obvious question: if Ferguson's approach is so fundamentally flawed (though this reviewer does not believe it is), why does Arnheim include his essay ?

Arnheim's final point in his introduction is a controversial one, though it is foreshadowed by a number of his earlier comments. It is that these matters are better handled in the United States, where common law is "alive and well, partly because of a constitution interpreted to place the judiciary on a par with the executive and legislature, and also probably because of the survival of the jury system in civil as well as criminal trials". With this he finishes. This is an interesting point, but it is surely the starting-point for a debate, not its conclusion. Do commentators in the United States really believe that the use of the jury in civil cases has ensured the healthy survival of the common law ? Those who have watched the development of the English law of defamation (where civil juries are also used) might not take such a sanguine view.

Turning from the editor's introduction to the reprinted articles he offers the reader, one point of presentation is immediately apparent. This collection gives the reader "raw text": the articles are photographically reproduced from the original journal issues, and (at least in the copy sent to this reviewer) not always very well reproduced. In addition to the occasionally smudgy text, the inevitable diversity of type-faces means that the work is not very easy on the eye - though it must be admitted that because of its nature few will set out to read large chunks (still less all) of it at a sitting. Occasionally this method of production gives another cause for complaint: at one point (p 425) footnotes which relate to an earlier contribution in the original journal are included, whereas two pages later the final footnote of one of the articles is omitted. More seriously, because nothing has been added to the text of the articles which have been reproduced, even when an author refers to an article which is printed elsewhere in the collection there is no note to draw attention to this fact - the reader new to the volume will need to make frequent reference to the Contents Page.

As indicated earlier, only articles from legal journals are included in this volume. The 19 articles in the collection are drawn from a rather narrow range of journals (perhaps limited by considerations of copyright): four titles from the United Kingdom and five from the United States. The UK titles are the Cambridge Law Journal (1 item), the Modern Law Review (3 items), the Law Quarterly Review (3 items) and the Oxford Journal of Legal Studies (clear winner with 5 items). The United States titles are the California Law Review, the Stanford Law Review, the Southern California Law Review, the Journal of Legal Studies and the Yale Law Journal - the last two of these are represented by two articles apiece, the remainder by one. All but two of the contributing authors teach - or taught at the time of publication - in the country where their articles were published. What, one wonders, is happening to the jurisprudence of the common law in other jurisdictions ? Were there no worthy candidates for inclusion in the periodical literature of Canada, Australia or New Zealand ? And might it not have been instructive to have a comparative contribution from a scholar in the civil law tradition? In addition it should be noted that, at least for the reader in the United Kingdom, the journals excerpted are for the most part readily accessible. The four UK titles must surely be available in all university libraries in this country, and of the five US titles only the Southern California Law Review was unavailable in this reviewer's (relatively recently established) university's collection of legal materials. This collection cannot therefore claim to have made available that which was previously unavailable, but simply to have made the articles it includes slightly more accessible, and to have saved the interested reader from the time and trouble (not to mention possible liability for breach of copyright) of assembling a collection of cumbersome photocopies. This is a worthy enough aim, though it must mean that the likely market for this book is the individual, rather than the institutional, purchaser: librarians balancing straitened budgets will think twice before ordering a collection of essays already available in different form in their libraries.

The concentration on journal articles means that this collection has an obvious flaw. Some writers of the first magnitude are absent, because their contributions to the debates featured in this book have taken the form either of monographs or of essays in collections. Writers such as H L A Hart and Neil MacCormick do not appear - nor does Ronald Dworkin, though he is referred to so frequently (from the Introduction through to the final sentence of the last article) as to prompt the flippant thought that a suitable sub-title for the volume might be "Waiting for Dworkin". Similarly, Melvin Eisenberg's The Nature of the common law is twice reviewed in this collection (briefly by the editor in his introduction, at considerable length by Frederick Schauer in his review article "Is the common law law?") but Eisenberg - again presumably because his work has not appeared in the format appropriate for this collection - is not allowed to speak for himself. For the same reason, those authors who do appear are not necessarily represented by their latest, or their best, work. A good example of this is the case of A W B Simpson: two short notes from almost forty years ago, both entitled "The ratio decidendi of a case", appear in this collection. They are both elegantly and forcefully written, but they are hardly of the same importance as Simpson's contributions to the Oxford Essays in Jurisprudence, though the editor makes no reference to these. Another problem with Simpson's contributions - and indeed with other essays in the collection - is that they are explicitly written as answers to articles which have been omitted from this volume: Simpson may have won his debate with Montrose, but it is somewhat frustrating (and hardly fair on the other writer) to be allowed to hear only one side of the argument. It is hard to avoid the suspicion that the editor felt that he could not reasonably omit Simpson from his collection, but was only able to secure two relatively small- scale pieces in the format his publishers required. Perhaps the same considerations dictated the inclusion of Sir Rupert Cross in a somewhat uncharacteristic context - not discussing the doctrine of precedent, but attacking Bentham's "Comment on the Commentaries" in a published lecture which clearly shows its oral origin in the vigour of its language, accusing Bentham of "wilful misreading and inept comment". At least one piece looks rather out-of-place: S F C Milsom's celebrated 1965 inaugural lecture "Reason in the development of the common law" is the only exercise in medieval legal history included here. It is a brilliant piece, but it is hard to see how its analysis of the early (and misunderstood) development of what came to be known as the "forms of action" relates to any of the other essays in the collection. In any event it is merely a foretaste of themes explored much more fully in Milsom's Historical foundations of the common law, the first edition of which appeared four years later - some reference to the later work would have been useful. Whatever the rights and wrongs of its inclusion, Milsom's contribution is oddly sited, almost at the end of the book (although covering the earliest period of any of the essays in it), and sandwiched between George P. Fletcher's "Two modes of legal thought" and Joseph Raz's "Legal principles and the limits of law". This is not the only possible objection to the arrangement of the essays, and it would have been helpful if the editor had explained the order in which he has presented them - if there is a system (and it is certainly neither chronological nor alphabetical) then it was not apparent to this reviewer. Perhaps the oddest feature in this respect is the reproduction of an article by George L Priest followed by one by Paul H Rubin. The two pieces had originally appeared in the same issue of the Journal of Legal Studies, but with Priest following Rubin: Priest's paper opens with the line "[t]his comment simplifies and extends the important insight of the preceding paper by Paul H. Rubin". There can be no clearer signal to the reader that he or she should read first Rubin, then Priest: the editor of this collection clearly disagrees, but does not tell us why.

To return to the work as a whole, it must be admitted that the editor had an almost impossible task. Within the constraints of format imposed by his publishers he has tackled it bravely, and, as the list of articles appended to this review makes clear, he has included much material of lasting significance to students of the common law. It is a shame, however, that he was not allowed to do more. Had extracts from non-periodical literature been included, and had the editor provided more guidance to the reader (by referring to later or related work, or by providing a fuller bibliography, for example) then this could have been an invaluable source-book.

Appendix - List of articles included in Common Law (ed. Arnheim):

Alexander, L 'Constrained by precedent'.

Allan, T R S 'Parliamentary sovereignty: Lord Denning's dexterous revolution'.

Allott, P 'The Courts and Parliament: who whom?'

Atiyah, P S 'Common law and statute law'.

Cross, R 'Blackstone v Bentham'.

Ferguson, R B 'The Horwitz thesis and common law discourse in England'.

Fletcher, G P 'Two modes of legal thought'.

Harris, J W 'Towards principles of overruling - when should a final court of appeal second guess?'

Hurley, S L 'Coherence, hypothetical cases, and precedent'.

Milsom, S F C 'Reason in the development of the common law'.

Perry, S R 'Judicial obligation, precedent and the common law'.

Priest, G L 'The common law process and the selection of efficient rules'.

Raz, J 'Legal principles and the limits of law'.

Rubin, P H 'Why is the common law efficient?'

Schauer, F 'Is the common law law?'

Schauer, F 'Precedent'.

Simpson, A W B (1957) 'The ratio decidendi of a case'.

Simpson, A W B (1958) 'The ratio decidendi of a case'.

Winterton, G 'The British Grundnorm: Parliamentary supremacy re-examined'.