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The Legal Point of View, by ROBERT A. SAMEK, New York; Philosophical
Library, 1974. Pp. 403 ($15.00).
Jurisprudence is widely and rightfully considered one of the
most difficult of the traditional academic legal arts. In Canada,
writing in this field is scarce; few seem prepared to run the
rigours, in a serious way, of legal philosophy. Professor Samek,
who teaches law at Dalhousie University, is an exception. In The
Legal Point of View he has taken on a big jurisprudential task
and has accomplished much of it successfully.
Much of this book is devoted to a fairly conventional account
of important legal philosophers and philosophies. Samek describes
well, in the manner of a jurisprudence textbook, the philosophies
of Hobbes, Blackstone, Bentham and Austin (he terms their phi-
losophies “four command models of law”), of Kelsen (a “norm
model”), of Hart (a “recognition model”) and of Fuller (an “aspi-
rational model”). (A “model”, in its simplest sense, is a representa-
tion or interpretation of reality; it is a hypothetical mechanism
“designed to explain, to sum up, what you observe”.’ As Wittgen-
stein puts it in the Tractatus, “A picture is a model of reality”,
or, alternatively, “A proposition is a model of reality as we im-
agine it”Y) Samek’s straightforward account of the writing of
major jurisprudes should prove useful to those beginning the
study of legal philosophy.
The more important part of The Legal Point of View is Pro-
fessor Samek’s Wittgenstein-based analysis of the problems of
jurisprudence. It is his view that much of the “confusion” in juris-
prudence is a consequence of an ill-advised search for the “es-
sence” of law. He writes that the question “What is law?” is “a
philosophical question in Wittgenstein’s sense, that is, its persist-
ence and the puzzlement which it generates are due to the aliena-
tion of the word law from its many successful uses in ordinary
language-games…” (p.10). Samek argues that to the extent that
I Ludwig Wittgenstein, Philosophical Investigations (trans. G.E.M. Anscombe)
(1972), 62e, remark 156.
2 Ludwig Wittgenstein, Tractatus Logico-Philosophicus (trans. D.F. Pears
and B.F. McGuinness)
(1972), 15, proposition 2.12.
s Ibid., 37, proposition 4.01.
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BOOK REVIEWS – REVUE DES LIVRES
there is any concept of law, that concept is an expression of a
particular family resemblance discerned in language-use. This fami-
ly resemblance is a consequence of the “bending” in language-use
of ordinary concepts so that those concepts accord with the “legal
point of view”. The notion of family resemblances was first discussed
by Wittgenstein. He noted that in games “we see a complicated net-
work of similiarities overlapping and criss-crossing: sometimes over-
all similiarities, sometimes similarities of detail”. 4 Wittgenstein char-
acterized these similarities as “family resemblances” and games
as a “family”, for, he wrote, “the various resemblances between
members of a family: build, features, colour of eyes, gait, tem-
perament, etc., etc. overlap and criss-cross in the same way”Y
Instances of language use, argued Wittgenstein, have no formal
unity, but form a family.
The legal point of view is a particular point of view; it marks
out what Samek calls an “exclusive field of interest” (points of
view are, to Samek, mutually exclusive). More precisely, a field
of interest is marked out by an understanding or an evaluative
model of a point of view. Samek describes an evaluative model as
“a model consisting of a set of postulates which express the
speaker’s pro- or con- attitude to something about which he has
formed a considered opinion” (p.26). The question “What is law?”
is properly interpreted as a request for the construction of an
evaluative model of law.
Professor Samek’s “legal point of view”, then, provides us with
a model concept; since, however, the model concept is an evalua-
tive concept, it appears to avoid the dangers inherent in a search
for the “essence” of law. Samek claims that “looked at in the light
of the new model, the old models will acquire a new meaning and
a new value; instead of being condemned for their inevitable failure
to capture the true essence of law, they will be judged by their
success in illuminating certain aspects of law which are of value
to the legal point of view” (p.87). How exactly is the new model
to be applied to the old models? Let me give one example of Samek’s
technique.
Kelsen argued that “[i]f a certain behaviour has been made the
condition of a sanction, the action is to be regarded as a delict,
even by a jurist who may not regard it as detrimental at all…”P
4Supra, fan.1, 32e, remark 66.
5 Ibid., remark 67.
6 H. Kelsen, Pure Theory of Law (translated from the second German
edition) (1967), 112.
McGILL LAW JOURNAL
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Woozley has criticized this view on two grounds: first, that even
if it is logically true that there can be no offences lacking sanc-
tions, that does not mean that the reason why a certain action
is a delict is because it entails a sanction (being a reason why is
not the same as being a criterion of its being the case); second,
that the view obliterates any distinction between penal sanctions
and acts of administrative coercion dependent on previous con-
duct (since, according to Kelsen, all that makes certain conduct
a delict is a coercive act provided as the consequent of that con-
duct). Samek rejects Woozley’s first criticism in this way:
If… we interpret Kelsen merely as putting forward a model concept of
delict as part of his evaluative model, then Woozley’s first criticism
ceases to hold; for the only question then is whether his model is fruitful
for the purpose in hand. His definition of a delict can in that case be
neither true nor false. (p.193 )
However, Samek finds Woozley’s second criticism to be valid;
he writes that Kelsen “cannot say on the one hand that a delict
is merely a condition of a sanction, and on the other hand that
it is the social value of the behaviour which is crucial” (p.194).
The dilemma is to be resolved, says Samek, by introducing the
legal point of view:
… from the legal point of view certain kinds of behaviour are delicts
because they are made subject to that mode of institutional social control
which is enforced through the effective application of a norm-system
by courts or tribunals acting as norm-authorities of the system. According
to Kelsen, legal significance is reducible to effective enforcement through
a normative order, and consequently the only legal value of delicts is
that they are so enforceable. According to my model, on the other hand,
the field of interest marked out by the legal point of view is more
restricted. We must look at the content of the norms of the system as
well as the mode of social control. This compels us to look at the moral
and social values protected by a norm-system in determining whether
it qualifies as a legal norm-system. For Kelsen, the character of the
behaviour regulated is legally irrelevant. There is nothing to prevent a
gang of robbers from establishing a legal order, provided that it is suf-
ficiently effective in space and time, even though the values enforced
are diametrically opposed to those which are normally- protected by a
legal system. According to my model, on the other hand, such a system
would not qualify as a legal norm-system. (pp.194-5)
This, apparently, is how the evaluative model works.
What can we say of Samek’s exposition of the “legal point of
view”? First, his discussion is on many occasions complex to the
point of obscurity; only the most diligent and patient reader, and
one with some philosophical knowledge, can hope to grasp the
7 See A.D. Woozley, Legal Duties, Offences, and Sanctions (1968) 77 Mind 461.
1974]
BOOK REVIEWS – REVUE DES LIVRES
analysis. Secondly, a significant part of Samek’s discussion of his
evaluative model is devoted to material not clearly relevant to his
main theme; Samek has failed, for example, to show us clearly
the wider significance of his account of P.W. Taylor’s theory of
normative discourse, or of G.H. von Wright’s description of norms.
Finally, Samek’s integration of his own theory with his discussion
of other philosophies is unconvincing; too often the attempt at
integration consists only of a few concluding remarks following a
lengthy summary of another man’s philosophy. The consequence
is that the full implications of the “legal point of view” are not
revealed, and many troublesome questions are left unanswered.
Surely, for example, to consider as relevant the moral and social
values protected by a norm-system is not a useful addition to or
explanation of Kelsen’s theory, but rather a denial of that theory.
How is a theory clarified or improved by adding to it precisely
what the theorist sought to eliminate?
But these rather general criticisms should not obscure the merits
of The Legal Point of View. Professor Samek has provided a use-
ful account of some major legal philosophers and has given us an
interesting theory of his own. In so doing, he has made one of
the few significant Canadian contributions to modern jurispru-
dence.
Philip Slayton *
* Of the Faculty of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 21
Traitg de droit administratif canadien et qudbdcois, by Rmis
DUSSAULT,
Qudbec: Les Presses de runiversit6 Laval, 1974. Pp. xvi, 2016 ($36; student
price: $25.40).
Canadian texts in Administrative Law are so rare that their
mere appearance is occasion for comment. Ren6 Dussault’s immense
new Traitj is even more welcome. Not only is it of high intellectual
calibre (as would be expected from a former student of the late Pro-
fessor S.A. de Smith), but it rather successfully escapes from the
lawyer’s natural tendency to dwell too much on judicial review.
Thus, Volume I starts off with a broad look at the general prin-
ciples of governmental structure and organization in Canada. Then
it examines in some detail the law relating to the public service,
public property, various regulatory powers necessarily conferred
on modern governments, and contracts by public bodies. All of
these topics are discussed primarily in the context of the federal
and Quebec governments. But –
because the Administrative Law
in all jurisdictions in Canada is public law, and thus was inherited
from England –
frequent reference is made to the situation in
other provinces.
Clearly, even a book the size of Dussault’s could not cover
all the Canadian (and English and Commonwealth) jurisdictions
on every point. But comparison is frequently the best criticism,
and the fastest road to reform. For example, Dussault refers
to the federal Statutory Instruments Act’ which provides for
the publication of certain delegated legislation, as well as for
its scrutiny by a joint committee of the House of Commons and
the Senate. By comparison, in Quebec the Provincial Secretary’s
Department Act 2 has been repealed, and there now is no general
requirement for the publication of delegated legislation, let alone
for its orderly scrutiny by the National Assembly. Numerous other
examples of differing details of governmental structure are given.
Still, the central part of Administrative Law is judicial review,
and perhaps lawyers will be forgiven for concentrating their attention
on Volume II. Essentially updating the author’s earlier work, Le
contr6le judiciaire de l’administration au Qudbec,8
this volume
provides a valuable discussion of the principles of judicial review. In
my view, the Traitg’s greatest asset is its compilation of Canadian
authorities, much as de Smith’s encyclopaedic work4 has done in
1 S.C. 1970-71-72, c.38, as amended by R.S.C. 1970 (2d supp.), c.29.
2R.S.Q. 1964, c.54, repealed S.Q. 1969, c.26.
3 Qu6bec, Les Presses de l’universit6 de Laval, 1969.
4 SA. de Smith, Judicial Review of Administrative Action 3d ed. (1973).
1974″1
BOOK REVIEWS – REVUE DES LIVRES
England. This, coupled with its comprehensive bibliography, will
make it indispensable to Canadian lawyers and students alike.
Further, Dussault expands his previous work by analyzing the first
few cases decided under the new supervisory jurisdiction contained
in sections 18 and 28 of the Federal Court Act.5 This clearly is im-
portant.
Nevertheless, one might make a few suggestions for the next
edition. On a purely technical level, the method of citing cases is
incorrect: square brackets are generally omitted in favour of paren-
theses. In a printed text, this improper standardization should not
be necessary. Secondly, many of the footnotes make cross-references
to other footnotes, often pages away. To say the least, this is awk-
ward if one has left the other volume at home!
On a more substantive level, a reader from outside Canada
might be confused by the following statement:
Contrairement aux pourvois extraordinaires, ou brefs de prrogative, qui
sont directement issus de la common law britannique, les pourvois ordi-
naires prisentent gindralement un caract~re plus authentiquement cana-
dien ou qudbdcois. Ii s’agit de 1action directe en nullit6, propre au Qu6-
bec, de la demande d’examen et d’annulation, propre au f6ddral, et,
s’appliquant aux deux niveaux d’administration, de la requite pour juge-
ment ddclaratoire et de l’injonction.6
Certainly, the direct action in nullity in Quebec and the super-
visory powers of the Federal Court of Appeal derive from statutory
provisions peculiar to these jurisdictions. But surely declarations
and injunctions originated in the courts of equity in England.
Likewise, a reader from outside Quebec would profit from a
more critical analysis of the direct action in nullity. On the one
hand, Dussault refers to cases where the direct action has been
used as a remedy separate from the normal supervisory ones
found both in Quebec and in other jurisdictions.7 Yet the author
also adopts Le Dains’ view 8 that, historically, article 33 of the
Code of Civil Procedure really only selects the Superior Court to
exercise the supervisory powers dealt with elsewhere in that Code.
Undoubtedly Dussault’s text reflects the general confusion on this
point which exists in the Quebec courts. But this departure by
the courts from what would appear to be the clear statutory
construction of article 33 does bear further comment.
5 R.S.C. 1970 (2d supp.), c.10.
6 At p.1022 (italics added).
7 Ibid.
8 Le Dain, The Supervisory Jurisdiction in Quebec (1957) 35 Can. Bar Rev.
788.
McGILL LAW JOURNAL
[Vol. 21
Similarly, although a whole chapter is devoted to discussing
the liability of public bodies, the thorny problem of Crown privi-
lege is hardly raised. How does section 41 of the Federal Court
Act 9 affect previous jurisprudence? What about the decisions by
the House of Lords in Conway v. Rimmer 10 and Duncan v. Cam-
mell Laird?” And what is the position in Quebec?
Finally, one might query the author’s criticism of section 96
of the British North America Act, 1867:
Malgr6 les adoucissements apportds aux rigueurs de l’article 96 de l’Acte
de l’Amdrique du Nord britannique par ce second courant jurisprudentiel
qul lui donne une interprdtation 6troite, cet article constitue ndanmoins
une restriction h la souverainet6 legislative des 6tats membres dans les
domaines qul relvent de leur juridiction, ce qui est difficilement conci-
liable avec les principes dun sain f6d6ralisme…. La pr6tendue protection
que les dispositions de l’article 96 … sont cens6es apporter h l’ind6pen-
dance des juges est un mythe qu’il est temps de cesser de perp6tuer….111
To comment that Canada is not a perfectly federal system is one
thing; to suggest it should be, another. Perhaps it only reflects a
different perception of the likelihood of improper interference by
provincial officials, but a substantial number of people are more
comfortable with section 96 the way it is. Certainly one can specu-
late whether the outcome of Roncarelli v. Duplessis 12 would have
been the same if section 96 were different. Although this difference
of opinion basically concerns the ideal constitution for Canada,
the practical importance of section 96 in light of the Supreme
Court’s decision in Chicoutimi Seminary v. City of Chicoutimi’i
must not be underestimated.
But these are minor points. The Traitd obviously accomplishes
its aim: to provide a complete and structured view of Administra-
tive Law.’4 Of course, its primary focus is federal and Quebec
law, so the field is wide-open for a similar work for use in other
provinces. Nevertheless, Dussault’s Traitg is by far the most intel-
lectually exciting work on the subject to appear in Canada.
David Phillip Jones *
9 R.S.C. 1970 (2d supp.), c.10.
10 [1968] A.C. 910.
11 [1942] A.C. 624.
ia At pp. 1135-36.
12 [1959] S.C.R. 121.
is (1972) 27 D.L.R. (3d) 356.
14See p. xii.
* Of the Faculty of Law, McGill University.
19741
BOOK REVIEWS – REVUE DES LIVRES
Canadian Law of Planning and Zoning, by IAi McFEE ROGERS, Toronto:
The Carswell Company Limited, 1973. Pp. xxi, 282 ($27.50).
The law of planning and zoning in Canada is gradually acquiring
independent status, distinct from the law of property and mu-
nicipal law. Legislative history provides one sign of this. For many
years the statutory provisions governing planning and zoning were
lost among the many and diverse articles of the various Municipal
Acts; but over the last quarter-century the trend has been to re-
move them and to place them in special Acts. This has resulted
in a reorganization and expansion of these provisions and their
presentation as a logical, coherent whole.
Another indication of this coming of age is the appearance of
Mr Rogers’s Canadian Law of Planning and Zoning. From his
well-known general treatise on The Law of Canadian Municipal
Corporations I the author has extracted those chapters relating
specifically to the law of planning and zoning, and in the process
has considerably expanded and reorganized them. Thus we have
the first Canadian textbook devoted solely to the law of planning
and zoning.
The book contains nine chapters, devoted successively to the
author’s introductory remarks, the planning authority, the plan,
subdivision control, zoning, building construction by-laws, building
permits, enforcement, and appeals and remedies. Thus the book
deals with most topics of interest. The only omission worthy of
note is that of the problem of attacking by-laws. Although the
grounds for attack are raised in an incidental fashion throughout
the chapter on zoning, this reviewer would find the book more
useful for teaching purposes were the subject –
and particularly
the questions of the procedure for attack and the interest of the
petitioner –
treated in a separate chapter, similar to Chapter XXIII
of The Law of Canadian Municipal Corporations.
Throughout the book, and in contrast with his earlier work,
which heavily emphasizes Ontario law, Mr Rogers has made a
considerable effort to describe the law in every Canadian juris-
diction. The general arrangement of each subject is that of an initial
overview or survey of Canadian law followed by a more detailed
exposition of the law in each province. Although the inclusion of
unnecessary detail in the general part sometimes mars the co-
herency of the discussion and leads to needless repetition, this
arrangement enables the reader both to obtain a general picture and
‘Toronto, The Carswell Co. Ltd., 1st ed. (1959); 2d ed. (1971).
McGILL LAW JOURNAL
[Vol. 21
to consult easily the jurisdiction in which he is particularly in-
terested.
The discussion of the law in the common law provinces, and
notably that of Ontario, is extremely comprehensive and thorough,
and students and practitioners alike will find the book an invaluable
research tool. As well, Mr Rogers is to be congratulated for his in-
clusion of Quebec law, especially in view of the fact that documen-
tation in this area is not always readily available.
There are, however, several questions relating to Quebec law
to which Mr Rogers might consider giving a fuller treatment in
his second edition. Firstly, although it is correct that in Quebec
“limited planning powers are conferred by the Municipal Code
and the Cities and Towns Act and there is no separate enactment”, 2
reference ought perhaps to be made to the numerous city charters
which often supplement or even derogate from these general Acts.
For example, in contrast to the two general Acts, the Charter of
the City of Montreal does not provide for a referendum before a
rezoning takes place 3 Another example is the possibility of “free-
zing” land pending the adoption or amendment of a zoning by-law,
which the Charter of the City of Montreal specifically permits 3a
although the Cities and Towns Act 4 does not. Hopefully, however,
this problem of a multitude of enabling statutes in Quebec will
be resolved in the near future. It has recently been criticized by
La Commission de Refonte des Lois Municipales, which recom-
mends the enactment of one general enabling act of universal ap-
plication.5 As well, there is still the possibility that the 1972 Avant-
projet de Loi de l’urbanisme et de l’amdnagement du territoire,O
also conceived to be of universal application, will become law.
Secondly, Mr Rogers ought perhaps to have made reference
to the several Urban Community Acts in Quebec, as he has with
the new Ontario regional municipality legislation. 7 Thirdly, Mr
Rogers is of the opinion that the legal effect of the Council’s
declaring a plan to be “obligatory” under article 429(8) of the Cities
and Towns Act is to make the plan binding on local authorities
and other public agencies –
and perhaps even on private citizens.
It ought perhaps to be mentioned that the La Haye Commission
2 At p.4.
3 Art. 524(3a). See the discussion at p.178.
3aArt. 106(o). See p.228.
4 The Cities and Towns Act, R.S.Q. 1964, c.193.
5 See La Presse, Montreal, September 10, 1974, p.A-2.
O Quebec, Minister of Municipal Affairs, December 1972.
7At p.42.
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BOOK REVIEWS – REVUE DES LIVRES
felt that a declaration under this ambiguous clause does no more
than make the plan “official”.8 Finally, there is the question of
the enforcement of by-laws, with respect to which this reviewer
expected to find a discussion of the effects of the Dasken case 9
upon the right of an individual to enforce municipal legislation.’0
Moreover, Mr Rogers states that Quebec may impose penalties of
up to only forty dollars for infractions of by-laws, while in fact
the Cities and Towns Act provides for fines of up to one hundred
dollars and the Charter of the City of Montreal establishes upper
limits of one hundred, five hundred and one thousand dollars for
first, second and subsequent offences.” In addition, Quebec should
be added to the list of those provinces where the imposition of
a penalty for each day a violation continues is expressly authorized
by statute.’
However, it is easy to quarrel with minor points in any com-
prehensive treatment of a subject. And the value of the Canadian
Law of Planning and Zoning lies in its comprehensiveness. It is
indeed a welcome addition to the library of all those interested
in the law of planning and zoning, and its utility will be consider-
able in all Canadian jurisdictions.
Jane M. Glenn *
8Rapport 1968 (Quebec, Comm. prov. d’urbanisme), ch.4, p.3. See pp.62-63
9 Propridtaires Jardin Tachd Inc. v. Entreprises Dasken (1971) 26 D.L.R.
of Mr Rogers’s book.
(3d) 79 (S.C.C.).
10 At pp250,258.
“Cities and Towns Act, s.398; Charter, sA62. The maximum penalty under
the Municipal Code is twenty-five dollars (s.371). See the discussion at p255.
12Cities and Towns Act, s.398. See p257.
* Of the Faculty of Law, McGill University.
