BOOK REVIEWS
CONSTITUTIONAL LAW
By E. C. S. Wade and G. Godfrey Phillips
Fifth edition by Wade
TORONTO: LONGMANS, GREEN AND CO., (1957)
There may not be a British constitution, but fortunately there is Wade &
Phillips, now in its fifth edition, edited this time by Professor Wade alone.
Few changes of note have occurred since the previous edition, and the style,
size and format remain much the same. Essentially this is the educational text-
book, not breaking new ground as did Dicey, or opening new approaches as did
Jennings, but hewing close to the traditional line and covering the essential
elements succinctly yet comprehensively. Enough of the Canadian constitution
stems from this basic law to make it as essential to the Canadian as to the
English student.
The separation now made between administrative and constitutional law, the
result of the great growth of the former branch over the past half century,
enables Professor Wade to keep his volume within the modest size of 500 pages.
The sixty pages he does devote to administrative questions give the outliies
of the British system, but, as the editor points out, “Comparison with any
foreign system of administrative law is purposely avoided lest it might confuse
the student who is not yet acquainted with the administrative jurisdiction of
his own country”. This is a far cry from the simpler days when Dicey compared
the fortunate absence of administrative law in England with its rather regret-
table presence in France. Laudable as may be the desire not to confuse students,
it is perhaps a pity that less attention was not paid to some of the particular
ievoted
English administrative tribunals mentioned in the text and a little more
to the challenging notion, around which considerable argument has taken place,
of formulating uniform administrative rules and, possibly, entrusting them to a
special administrative tribunal for final adjudication.
It may not be out of place to refer to some points of detail in the secdioti
dealing with the British Commonwealth. The term “British” Commonwealth is
still used in some pages, as is the word “Dominion” as part of the title of Canada.
Plain Commonwealth and Canada ate better usage. The footnote reference to
authorities on the Canadian constitution (p. 450 n. 3) mentions only Kennedy
and Dawson not Laskin or Clement or Lefroy. The new Letters-Patent in
Canada containing a full grant of prerogative powers were issued in 1947, not
1937 (pp. 472, 474). The statemeht that it is “difficult to contend that a dec-
laration of war by the Government of the United Kingdom would bind the other
McGILL LAW JOURNAL
[Vol. 4
members of the Commonwealth without their governments making separate
declarations” is strangely cautious in view of the widely accepted notion of the
divisibility of the Crown in this respect, and of the separate use of the war and
peace power by many of the states of the Commonwealth. A further statement
(p. 477) that “A Member of the Commonwealth can make a declaration of
independence which for international validity requires a treaty or some form of
recognition”, appears to need clarification; a unilateral act of secession by a
Member already an independent state from the international point of view
would seem to require nothing further. These passages indicate a reluctance to
carry the implication of Members’ independence to its logical conclusion. They
detract little from the excellence of the work as a whole.
F. R. ScoTT*
TRAITE DE DROIT CIVIL DU QUEBEC – Vol. 7-bis
by Leon Faribault, Q.C.
MONTREAL: WILSON AND LAFLEUR (1957).
The appearance of the latest volume of the still incomplete “Trudel” series
is the most recent addition to the short but growing shelf of books dealing with
our civil law. Written by Mr. Lion Faribault, the author of two other volumes
of this series, it covers arts. 1041-52 and arts. 1057-78 of the Civil Code. This
part of the Code comprises quasi-contracts, obligations resulting from the law,
the object of obligations, and the effect of obligations. The last subject partic-
ularly is one of vital interest to the profession as it includes the rules of
specific performance, contractual damages and default.
Prior to this work there was little if any contemporary writing in these
fields of Quebec law, especially with respect to specific performance, a remedy
to which most of our authors have devcted scant attention. It was thus normal
to hope that Mr. Faribault would provide the sorely-needed exploration and
synthesis of the jurisprudence and doctrine. Unfortunately, valuable though it
is in some respects, this book is hardly satisfactory.
On the credit side, it is the first really detailed study of the recourses avail-
able under art. 1065 C.C. Specific performance, damages and resolution of
contracts are discussed with respect to all principal types of contract separately:
sale, carriers, mandate, lease and hire, loan, deposit, partnership, gifts, etc. This
eminently pragmatic division –
these recourses are traditionally studied from
*Macdonald Professor of Law, McGill University.
No. 2]
BOOK REVIEWS
the point of view of a three-fold division of obligations in obligations to give,
to do, and not to do – would be very useful in practice if it were preceded by
a good general introduction dealing with the guiding principles and if the juris-
prudence were organized with clarity and logic. Mr. Faribault’s approach,
if
effectively carried out, would provide an invaluable tool for the practitioner.
However, not only is the introduction far too superficial to be of much use,
but the practical materials are inadequately handled in many cases and set down
without any convincing attempt at organization and comprehension, let alone
synthesis. Too many pages of this book, indeed, arouse the suspicion that one
is reading a not too coherent compilation of abbreviated headnotes. The skimpy
index does not make the use of this book easier.
While much of the important jurisprudence is referred to, there are some
puzzling omissions.’ Often an important matter is dealt with perfunctorily,
while excessive attention is devoted to lesser problems. It is also a bit surprising
not to find any discussion of injunctions, at least with respect to the specific
performance of negative covenants. These restrictive covenants occur frequently
in the business world and there has been a lot of reported litigation concerning
their enforcement by means of injunction. Even a short coverage of the subject
would have added to the completeness of the book.
The style used to refer to decisions, different though it is from the traditional
method of citation, must be familiar to subscribers to this series. Footnotes are
generally accurate, although the index contains an unusually high number of mis-
spelled citations (a feature of too many legal textbooks appearing in this
province). A more extensive use of footnotes when referring to the doctrinal
writers of France would have increased the scholarliness of this volume. While
exact references may not be too important to the student, the practitioner or
the scholar, for whom this series is presumably published, is entitled to expect
at least as high a degree of precision and authoritativeness as is required of any
ordinary factum.
Yet, in spite of the serious shortcomings of this book, it has some value as a
handy introductory survey of the law and recent jurisprudence in the fields it
deals with. And Mr. Faribault is entitled to credit for taking away time from
his important functions as greffier des appels and producing this pioneering
book. The state of our legal literature in Quebec being what it is, it would be
unrealistic to demand too much.
CLAuDE-ARMAND SHEPPARID*
1E.g. Larhance v. Brissette (1930), 49 K.B. 321; Corporation of the Town of Gra;d’-
Mre v. L’Hydraulique de Grandi’Mire (1908), 17 K.B. 83; Wills et al v. The Central
Rly. Co. (1915), 24 K.B. 102, (1914), 23 KB. 126; St. Denis v. Quevillon and Payette
(1915), 51 S.C.R. 603, (1914), 23 K.B. 436; Pilre v. I’Association Afhldtique d’An”ateurs
Nationlie (1911), 20 K.B. 41, to name but a fewV important decisions.
*Of the Board of Editors, McGill Law Journal; third year law student.
McGILL LAW JOURNAL
[Vol. 4
CASES AND MATERIALS ON INCOME TAX
Compiled and edited by John G. McDonald with a Foreword by
G. F. Curtis
TORONTO: BUTTERWORTH & Co. (CANADA) LTD. (1957). Pp. xl, 695.
There is perhaps no other field of legislation as that of income tax which pits
so relentlessly The State v. The Individual. The law student witnesses from
the sidelines a perennial battle of brains where one party searches for the loop-
hole with astuteness and the other for the oversight with grave concern. The
annually amended Income Tax Act testifies to this constant preoccupation of
our Federal Government to tame “its power to destroy” according to the fore-
sight and ingenuity dsplayed by the Canadian taxpayer. The regulating role of
the 2Y2 billion income tax dollars pocketed by the federal treasury annually has
been stressed often enough in the light of our economic achievements of the past
and prospects for the future; suffice it to say that for more than a decade now
the field has warranted an important course of study in the curriculum of all
law schools across our country.
Mr. McDonald’s worthy contribution to this hazy area of the law is primarily
an achievement in providing the student with cases and material heretofore
inaccessible in such a well organized and concise form. In most spheres of the
law the case book is rapidly becoming what Dean Curtis terms the student’s
“portable and personal library”.’ Mr. McDonald makes use of this method in
such an expert way and with such critical know-how that his work stands out
as more than mere reference material but rather as a true text book on the
subject.
The Income Tax Act by no means appeals to the mind in search of clarity within
legislation, and the average law student, basically ignorant of the technical con-
cepts dealt with in the Act, approaches with apprehension the study of undis-
tributed income of corporations, capital element in annuity payments, dividend
tax credits, interlocking directorates and so on. The author readily admits in his
preface that “this is primarily a student’s book 2′ and his approach to this com-
plicated legislation remains throughout one aimed at providing the students
with the fundamentals of income tax law.
The interposition of interesting articles between judgments or at the outset
of various chapters (the majority of the articles are the author’s own) allow the
reader to grasp an awareness of the complexities underlying the interpretation
of a particular section of the Act; once the problem is expertly set out, Mr.
lFrom the Foreword by Dean G. F. Curtis, p. V.
2Preface, p. VII. See also, inter alia, p. 417.
.No. 2]
BOOK REVIEWS
McDonald proceeds to edit the opinions of various judges and lawyers. His
choice of judicial or quasi-judicial decisions is excellent in that they always
succintly sum up the facts (which he otherwise supplies in small print where
they do not appear too clearly from the judgment) and provide the juridical
reasoning which explains their being inserted under a particular heading. Dis-
cussion notes throughout the book provide the interested student with more
complex problems and the professor with examination material.
The law school student eager to learn as much as possible in the shortest
possible time will find the 600 odd reported cases, the various tables of con-
tents, of statutes, of cases, and the analytical index of invaluable help. To us,
Mr. McDonald’s book spells a must for the student of income tax law. The
basic concepts of this often-amended area of statutory legislation will endure
and always stand to be illuminated, in the light of the author’s expert grouping
of material. It is also our humble opinion that the practitioner will derive an
immense profit from adding this case book to his every day library.
YvEs FoRTIER*
THE EVOLUTION OF THE JUDICIAL PROCESS
by The Hon. James C. MeRuer
CLARKE, IRWIN AND Co. LTD. (1957). Pp. xl, 115, ($3.00)
The paucity of the literary output made in Canada by leading political and
judicial figures should alone be sufficient to stimulate interest in this book. The
author, the Hon. James C. McRuer, is well known in his capacity as Chief
Justice of the High Court of Ontario. Sometimes overlooked, however, is his
work as a joint author of the now famous Archambault Report of the Royal
Commission on the Penal System of Canada (1937), and his chairmanship of
the Royal Commission on Sanity as a Defence in Criminal cases.
The Evohtion of the Judicial Process heralds the beginning of what we
hope will become a continuing series of publications. The W. M. Martin Lec-
tures, conceived and organized by the Law Society of Saskatchewan, for the
furtherance of legal education, promise to be a valuable addition to the field
of Canadian legal thought. The first lectures of this series, given in 1956 by
Chief Justice McRuer, now form the basis of this book.
In his preface Chief Justice McRuer states that his objective is to stimulate
“an objective appraisal and further study of the judicial process as it regu-
lates the domestic affairs of free men, and as a probable organ for the regulation
*Of the Board of Editors, McGill Law Journal; third year law student.
McGILL LAW JOURNAL
[Vol. 4
of all men in their international affairs.” He accordingly points out that “It
was not intended.., to give a detailed catalogue or comprehensive history of the
evolution of the judicial process.” It is therefore only fair to evaluate this book
in terms of whether or not it fulfills the author’s stated and limited objective.
The judicial process is approached from three different points entitled Historic-
al, Contemporary and International. Part one deals almost exclusively with histor-
ical development in the United Kingdom. This is unfortunate because it largely
results in the retreading of already familiar ground. The fact that the Ordeal
was utilized in determining guilt in the East as well as in Europe is however
very interesting. We are told that the rationale of the Ordeal was to reveal
divine will. The author argues that its common use in both East and West sup-
ports his broad and contreversial thesis that “Historically in all states of civiliza-
tion there has been some recognition on theory at least that there is a natural
law of Divine dictation, and justice has been administered as an expression of
the Divine will.” It is unfortunate that the Chief Justice didn’t elaborate more
fully on this interesting proposition.
Part two examines the current operations of the judicial process in a variety
of countries, including Canada, the United States, the United Kingdom, most
European countries, the U.S.S.R. and China. The judicial hierarchies are des-
cribed along with the differing methods of making judicial appointments. There
has always been considerable criticism in Canada of our method of selecting
judges. Critics should welcome this opportunity to compare our practice with
that of other nations.
Chief Justice McRuer recognizes that our judicial system suffers from imper-
fections. For example he concurs in the view that litigation is very often too
expensive for the average Canadian citizen. Since several European systems
were designed to remedy this complaint, he maintains that an examination of
these other systems might contribute towards the solution of this problem in
Canada. He wisely suggests “that it should be corrected by the legal profession
and not in spite of the legal profession.”
We are also reminded that due to population growth the present broad juris-
diction of the Supreme Court of Canada will, of necessity have to be limited.
The reviewer cannot resist adding that other factors besides sheer population
increase might have the effect of precipitating a limitation of the Court’s func-
tions. For example, the adoption of a Bill of Rights could theoretically result in
a whole new army of litigants marching upon Ottawa to claim its protection.
In its concluding portions, the book traces the development of the judicial
process in the international sphere. The Chief Justice displays a swift and some-
what dogmatic impatience with the traditional law, “it can be safely stated that
there is international
law, although variously defined by different writers.”
Instead, he concentrates upon descriptions of the creation of the Permanent
Court of International Justice, the evolution of arbitration as a method of
resolving international problems, and the establishment in 1945 of the Inter-
national Military Tribunal which convened at Nuremberg.
No. 2]
BOOK REVIEWS
It is difficult to disagree with his conclusion that nationalism presents the
main obstacle to a general acceptance by nations of an effective international
judicial process –
our only alternative to total destruction.
Chief Justice McRuer has provided us with a lively and interesting little
book. It is however unfortunate that he was not more liberal in expressing his
own conclusions about the problems posed, as this would certainly have con-
tributed towards the achievement of his stated objective.
RONALD I. CHEFFINS*
THE LION AND THE THR ONE:
THE LIFE AND TIMES OF SIR EDWARD COKE (1552-1634)
By Catherine Drinker Bowen
BOSTON: LITTLE, BROWN & COMPANY. TORONTO:
LITTLE, BROWN & COMPANY
(CANADA)
LIMITED. Pp. xiii, 652. ($6.75)
This stirring and evocative biography of one of the giants of the Common
Law was written primarily with the American lay reader in mind. But its
sharp insight into the politically and constitutionally turbulent transition period
from Elizabeth I to Charles I should be even more interesting to the lawyer,
who will have the feeling of coming face to face with some of the molders of
those personal and Parliamentary rights which are today taken almost for
granted. This should apply, a fortiori, to the Quebec practitioner or student,
who, by the very nature of the codification of much of his private law and the
approach of the commentators in clarifying and synthesizing, may be less cons-
cious than his common-law confreres of the tremendous impact of individual
men on the law, in development as well as action.
Coke was thoroughly and passionately devoted to the law, as barrister, judge,
and teacher. “Knowledge of the law is like a deep well, out of which each man
draweth according to the strength of his understanding. He that reacheth
deepest, he seeth the amiable and admirable secrets of the law.” And he did
reach deeply, almost pedantically, in his drawn-out recitals of ancient statutes
and maxims to support a legal pleading or a political view. He was an assiduous
reporter of his own and others’ cases—“And so it was clearly holden Pasch.
14 Eliz. in the court of common pleas, which I my self heard”-and these re-
ports were widely used for three hundred years in England and the United
States.
*Teaching Fellow, Faculty of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 4
His Institutes, first published in 1628, were one of the earlier attempts to
“codify” or comprehend the already massive accretions of the common law, “to
open some windowes of the-law, and to let in more light to the student, or
move him to doubt.” Mrs. Bowen’s biography numbers some of the leading
statesmen of the American Revolution among those who have laboured through
and were weaned on his very detailed works, especially his Commentary upon
Littleton, the first volume of the four which comprised the Institutes. These
were, incidentally, among the first legal treatises to be written in English; even
his Reports were in the traditional law French, with Latin prefaces.
But his scholarlship and delight in the common law (“The best and most
common birth-right that the subject hath for the safeguard and defence, not
only of his goods, lands and revenues, but of his wife and children, his body,
fame and life also.”) went far beyond teaching and practice, forming the basis
for his opposition to the unbounded exercise of the royal prerogative claimed
by James and Charles and their supporters. “The common law hath admeasured
the King’s prerogative,” he recited to Parliament. He had grown up under the
first Elizabeth, who respected Parliament and needed it for the subsidies to
carry on preparations against Spain, but who yielded not a fraction of her pre-
rogative, and knew how to guard it with political adroitness as well as royal
presumption. His later experiences were with Kings less skilled, less well-
loved, though no less determined. Opposing the royal will was not a thing to be
done lightly in those times. But oppose it he did as parliament man and as
judge. Even though, as Chief Justice, he had to humble himself on all fours
before James after pronouncing it, he risked the King’s anger with a statement
daring in its bluntness. In reply to James’ avowal that “he would ever protect
the common law”, Coke retorted that “the common law protecteth the King.”
Again, his leadership in the stand against James for the privileges of Parlia-
ment, during the 1621 session, cost him seven months in the Tower, Still he
spoke out, and at the ripe but vigorous age of seventy-six, was a guiding spirit
in the 1628 Parliament of Charles I that reiterated in the Petition of Right all
that Englishmen had gained to that time in the way of freedom of person and
of speech. Coke was a monarchist, but far from being a “lion under the
throne” as Francis Bacon would have the judges, he was the voice that cried.
(paraphrasing Bracton, typically strengthening his claims with reference to
legal authorities) “The King is under God and the law.” It took the learning,
intelligence and drive of a Coke to justify legally and to manceuvre politically
the growing sovereignty of Parliament. It is interesting that it was such men,
essentially conservative and loyal to their country and King, steeped in English
traditions (especially those of the law), who brought about the beginnings of
political revolution and modem concepts of political rights. “The oldest ways
are the surest ways,” they said. Their special quality was their concurrent and
supervening loyalty to principle, and an instinctive sense of going just beyond
far enough without going too far. Foremost among them, Coke always stood his
N’o. 2]
BOOK REVIEWS
ground and spoke his mind. “Not that I distrust the King, but that I cannot
take his trust but in a Parliamentary way.”
As with the royal prerogative, so with the ecclesiastical courts, with
Chancery and the High Commission. When he suffered temporary eclipse,
having been dismissed from his position as Chief Justice of King’s Bench
(hence, Chief Justice Totius Anglia) in 1616, it was said succintly that “pride,
prohibitions, premunire and prerogative” had been his undoing. The last three
refer principally to his procedural and jurisdictional battles with Chancery and
the King, his advocacy of the independence of the judiciary from direct royal
interference, and his holding the common law to prevail over all; the first, to
his steadfastness and refusal to yield on matters of law and principle.
His opponents were formidable, and his private and public life seemed to
get very much intermixed. Francis Bacon, that many-sided genius and his op-
posite in terms of personality, had been a life-long rival for royal favour, for
public office, and even had sought unsuccessfully, the hand of Lady Hatton who
was to become Coke’s second wife. (This was one of the few times Coke might
have won by having been the loser; theirs was a most unfortunate match, and
their prolonged bickering was a public as well as private matter, with legal
actions taken on both sides, carrying-off by mother and violent recapture by
father of their mutual daughter, and constant attempts on Lady Hatton’s part
to undermine him at court. This daughter’s indiscretions, the prodigious and
constant indebtedness of his sons as well as his conjugal difficulties seem to
have been the major private thorns in the side of a man who sired and supported
eight children, but probably fathered the law with greater devotion, in terms
of time at least.) Ellesmere, Bacon’s predecessor as Lord Chancellor was an-
other potent rival. In fact, many of the lords of the blood and of old family
regarded Coke (and most lawyers) as rude parvenus; Burghley was his only
important friend on the Privy Council. Though Bacon was instrumental in
humbling Coke, the former’s impeachment while Lord Chancellor was to be
much more abject a fall.
The biography, in conveying these and other aspects of Coke’s family, social
and official life, gives a vivid picture of his times. His combination of scholar-
ship with a hard-driving, aggressive and wordly personality were typical of the
England of the post Renaissance and post-Reformation; his country was vigor-
ous and unphlegmatic, on the long rise to world leadership that was to end only
with the World Wars of our own century: Coke participated either as judge or
Queen’s Attorney-General in some of the most famous political trials of the
day, such as those of Essex, Raleigh, Father Garnett and the Gunpowder Plot-
ters. His demeanour as advocate was in sharp contrast with that as judge. He
was known as a ruthless prosecutor; his conduct of the trial of Raleigh, for
instance, was vicious enough to draw hisses from the gallery, and his penchant
for advocacy came to the fore on occasion, even while judge. He was bitterly
anti-Catholic and detested Spain.
McGILL LAW JOURNAL
[Vol. 4
But in all these weaknesses as well as strengths, he reflected the temper of
his times, political and legal. The common law had already crystallized into a
formalistic and harsh system, but one which many writers have held suited the
English temperament, providing as it did a rigorous certainty, if not a merciful
and flexible justice. This was a time of cruel penalties, hangings on a whole-
sale scale, drawings and quarterings (and worse). Confessions were still ob-
tained by torture or threat of it, condemnation made on hearsay. Judges were
as zealous to prosecute as were the Crown attornies. Thit was a time of trea-
sonable plot and counter-plot among Englishmen, with Spain always some-
where in the background. Religious toleration was viewed as a weakness,
incompatible with national welfare; politics, nationality and religion were all one
bundle in the eyes of 16th and 17th century Europe. It was to be centuries before
England completely outgrew the superstitions of barbarism and medievalism.
The picture Mrs. Bowen draws so well is that of a well-rounded and com-
pletely human person, very active and influential legally and politically in a
fascinating and, for posterity, a very important time. Her style and thorough
documentation, her evident interest in her subject and the care with which she
approached it, will provide most enjoyable and beneficial reading for all those
concerned with the law and with history; this writer finds it easy to recommend
this book with enthusiasm.
B. ROBERT BENSON*
AIMS AND METHODS OF LEGAL RESEARCH
Conference held at theUniversity of Michigan Law School,
Nov. 4-5, 1955.
ANN ARBOR: MICHIGAN LEGAL PUBLICATIONS (1957). Pp. x, 199.
EDITED BY ALFjv F. CONARD.
In November 1955, a number of American
the
University of Michigan Law School to discuss the aims and methods of legal
research. The papers presented by seven of them, together with the comments
of nineteen deans, professors of law and judges were recently published by
Michigan Legal Publications.
legal scholars met at
Every report of such a symposium is necessarily uneven in value; and this
book is no exception. However, the quality of the participants, the frankness of
their remarks, and specially the absence of any single and pompous opinion
render the reading of this report remarkably interesting.
The major criticism one can make of Professor Karl Llewellyn’s paper on
*Of the Board of Editors, McGill Law Journal; third year law student.
No. 2]
BOOK REVIEWS
Social Significance in Legal Problems is the style of its presentation–or rather
the lack of it. The following example, chosen at random, will render any fur-
ther comment on this point unnecessary:
“I’ve written down a lot of stuff here that I am not going to read to you, except
when I manage to get something phrased rather nicely, that I just don’t want to
let go because it tastes good, and I want to let the particular words come out.”
The main theme of Mr. Llewellyn’s essay is the emphasis on research in the
“other-than-doctrinal” field, on “fact research.” These are by no means new
words in the author’s mouth, as he was writing in 1929:
“We shall not get down to the real study of ‘how rules work’ until we come to see
that until we know how a rule works, we don’t know what a rule is.”I
His opinion on the point is now widely accepted in the United States,2 and in
Canada, it was sanctioned to a certain extent by the Committee of the Canadian
Bar Association on Legal Research, in its report of 1956:
“(Law)
tions in a given social context.” 3
is concerned first and foremost with human behaviour and human rela-
But, to borrow the words of Professor Burke Shartel, in his remarks fol-
lowing the delivery of Llewellyn’s paper, the latter is “extremely general and
vague.
In the second essay, Research for Legislation, Professor Charles B. Nutting
offers more practical aims for legal research. After having explained the func-
tion of legislation, he states:
“Statutory drafting offers an opportunity for exactly the type of legal research I
think we should encourage law students to do.”
The author suggests, as one practical example, the Codification of the Com-
mon Law, a subject which has been recently examined in this Province by
Mr. Walter S. Johnson.4 As a more modest undertaking, Professor Nutting
suggests the drafting of model statutes in such fields as litigations involving
claims for personal injuries, one which needs much study and legislation this
side of the border.
The Committee on Legal Research speaks of a new duty incumbent upon the
legal profession: that of law reform. 5 This paper suggests the means to fulfill
this new duty.
The most interesting text in the book is undoubtedly Professor Yntema’s
essay, entitled “Looking out of the Cave”–Some Remarks on Comparative
1Handbook of the Association of American Law Schools (1929), p. 35.
2″The bedrock of our legal order is the proposition that legal order is not an end in
itself; law justifies itself only as it serves the fuller life of the whole people”; Hurst,
Research Responsibility of University Law Schools (1957), 10 Journal of Legal Ed.
147.
3Report of the Committee on Legal Research
(1956), 34 Can. Bar. Rev. 999, at
p. 1002.
4The Codification of the Common Law (1957), 17 R. du B. 165.
5Loc. cit., at p. 1034.
McGILL LAW JOURNAL
[Vol. 4
Legal Research. In Quebec, and indeed in the rest of Canada, it is generally
assumed that the main purpose of comparative law is a necessary return to the
sources in order to complete and explain our legal systems. For Professor
Yntema, it has a “universal human outlook,” mostly tied up with the problem
of justice. In that sense, it may appear that the author is somehow opposed to
Llewellyn’s plea for non-doctrinal research. In fact, the purpose of comparison
is practical: “to make sure that what happens in Ann Arbor (Mich.)
is dupli-
cated in Ruritania.”
But Professor Yntema does not confine himself to the topic assigned to him;
he examines very critically the system of legal education in the United States:
how the educational background of the law student is very deficient, in that he
has no classical humanities, little skill in writing, 6 almost no knowledge of any
foreign language, little desire to read what is not immediately necessary for
class purposes; how there are almost no non-vocational prerequisites of admis-
sion to legal studies; how law schools are largely responsible for the lawyer
regarding his profession as “an honorable trade.”
The author brings forward a set of suggestions for the improvement of the
situation. In his words, “the time is overdue to justify the pretention of law
as a university discipline.”
“To conduct the kind of research that I shall be discussing, three elements must
be brought together: ideas, money and manpower, and the hardest of these to
come is manpower,”
says Associate Dean David F. Cavers, at the outset of his paper on Manpower
for Research. To improve the situation, Mr. Cavers advocates the creation of
a research department in the major law schools with full-time scholars and a
number of recent graduates.
The present stage of legal research in Canada seems to prevent even the
consideration of such a project by our Universities. Our Law Schools are still
at the beginning of the process; they still have to create an interest among the
members of the legal profession, and the Committee on Legal Research recom-
mends this as one of the first steps. 7 Moreover, the facilities for research here
are still too inadequate. And, I think, most of all, the absence of funds and en-
dowments available for basic research, even on a limited scale, is the ever-
present problem. Mr. Cavers himself admits that his proposals “cut into the
problem at a fairly late stage.” In this country, these suggestions will be more
useful in ten or fifteen years.
The task of dealing with The Law and Some Aspects of Criminal Conduct
was assigned to Professor T. Sellin, a sociologist. The author belongs to that
class of criminologists for whom the influence of social groups, like the family,
6This is not only the opinion of one man; see for instance: Rosco, The Miami Plan
-Basic English for Law Students, (1957), 11 Am. Bar Ass. J. 1013; Abel, Introduction
to Legal Writing, (1957), 12 U. of T. L. J. 81.
7Loc. cit, at p. 1012.
