BOOK REVIEWS
LIVRES NOUVEAUX
Pricis du droit de la vente et du Iouage. Par Thdr&se Rousseau-Houle.
Quebec: Presses de l’Universit6 Laval, 1978. Pp. 399.
A la suite d’autres 6diteurs, les Presses de l’Universit6 Laval
ont lanc6 il y a quelques annes une collection consacr~e aux ouvra-
ges de droit, la Biblioth que juridique. A une monographie, une
th~se et deux rapports de recherche, s’ajoute maintenant un ouvra-
ge p6dagoeique, le Precis du .droit de la vente et du louage, 6crit
par le professeur Th6rbse Rousseau-Houlle, qui enseigne ces ma-
ti~res h l’Universit6 Laval depuis plusieurs ann6es.
La table des mati6res inclut 6. peu prbs tous les sujets qu’an-
nonce un tel titre, et m6me un peu plus. Outre le droit commun h
toutes les ventes, on y trouve les ventes h r6m6r6, h temp6rament, a
l’ench~re, la vente de cr6ances, de droits successifs, de droits litigieux,
ain-si que l’6change et la dation en paiement. Le louage de choses
couvre les r~gles du Code civil et de la Loi pour favoriser la conci-
liation entre locataires et proprigtaires.1 Le louage d’ouvrage inolut
la responsabilit6 des constructeurs, ing6nieurs et architectes; toute-
fois, le transport et le travail sont exclus, ce qui parait fort justi-
fiable vu que ces matibres font souvent l’objet d’une certaine sp6-
cialisation tant dans l’enseignement que dans la pratique.
Le pr6cis n’est pas un genre tr~s r6pandu en droit qu6bcods.
L’auteur a fait un heureux choix dans ce sens et est parvenu h
6noncer clairement et succinctement l’6tat du droit sur les sujets
abord6s. Le texte est parsem6 d’abondantes r6f6rences h .la juris-
prudence –
avec souvent des petits sommaires int6ressants.
Le texte est assorti d’une table .analytique des mati~res, d’une
bibliographie partielle et d’un index. A propos de ce dernier, il faut
signaler une faiblesse, du reste fr6quente dans les index confec-
tionn6s au Qu6bec, soit le trop grand nombre -de renvois pour une
m~me rubrique (par exemple, soixante-et-onze renvois pour “dommna-
ges-int6r6ts”): cette impr6cision d6courage le lecteur, qui emploiera
d’autres moyens pour trouver l’information qu’il cherche (table
analytique des matires, renvois d’une partie h l’autre du texte,
1 S.Q. 1950-51, c. 20, telle que modifi6e.
McGILL LAW JOURNAL
[Vol. 25
et bien dautres), .lesquels s’avbreront souvent moins efficaces (des
informations
lui 6ohapperont), voire moins rapides. Malgr6 le
format 6conomique de la publication, la pr6sentation matdrielle est
correote.
L’ouvrage appelle quelques r6serves. Ainsi, le lecteur est un
peu ddcu de ila part faite 4 la rdvision du Code civil; malgre l’annon-
ce faite dans l’avant-propos, le texte comporte peu d’6noncds ou m6-
me de renvois au Projet de Code civil,2 notamment dans certaines
questions oit la rdvision op~re d’importants changements. Par ail-
leurs, quelques sujets m6ritent plus d’attention que ne leur en ac-
corde il’auteur (par exemple, les motifs de non-prolongation du bail
par la Commission des loyers). Enfin, l’6nonc6 de certaines r~gles
manque malheureusement de rigueur.
Pierre-Gabriel Jobin*
2 Office de rdvision du Code civil, Rapport sur le Code civil du Qudbec
(1977).
* De la Facultd de droit, McGill University.
1979]
BOOK REVIEWS – LIVRES NOUVEAUX
Legal Implications of Remote Sensing from Outer Space. Edited by
Nicolas Mateesco Matte and Hamilton DeSaussure. Leyden: A. W. Sijthoff,
1976. Pp. xiv, 197.
The legal profession is indebted to the Institute of Air and
Space Law of McGill University for the publication of the Institute’s
symposium on the legal implications of remote sensing by satellite.
The conference was held at the Institute between October 15th and
19th, 1975; the articles which the participants contributed have
been jointly edited by Professors Nicolas Matte1 and Hamilton
DeSaussure
The symposium commences with a discussion of “Technical
Applications of Remote Sensing from Outer Space”. In his article,
“Remote Sensing by Satellite: Technical and Operational Impli-
cations for International Cooperation”, Stephen E. Doyle pays
tribute to NASA’s achievements in the Landsat program, especially
with respect to the economic benefits which the participating
countries have acquired. His article also records the potential
of remote sensing technology and the possible difficulties which
publicists will encounter in the future. In his study, “Remote
Sensing Satellites – What Do They Aotually Measure and How
Sensitive is the Information”, Lawrence W. Morley3 identifies at
least nine different categories of information obtainable through
the use of remote sensing satellites, and comments on the nature
and the degree of their sensitivity. He observes that the remote
sensing experiment “appears so far to have had no seriously bad
side effects when operated in an open manner”:’
Dr G.C.M. Reijnen, in “Remote Sensing by Satellites and Le-
gality”, succinctly surveys several draft agreements submitted by
state members to the UNCOPUOS5 for consideration. He reviews
the general consensus on the need for international cooperation in
remote sensing activities, and notes some major disagreements,
particularly with respect to the concept of states’ sovereignty vis-h-
vis the positive legality of remote sensing from outer space. He
nevertheless anticipates that a Draft Treaty will be available in the
near future. A useful study by Dr Andr6 W. Stoebner, entitled
“Remote Sensing of Earth Resources: Technique and Law”, ex-
amines the nature of remote sensing with a view to ascertaining
1Director of the Institute of Air and Space Law, McGill University.
2 Professor of Law, Akron Law School.
3 Director-General of the Canada Centre for Remote Sensing.
4p. 18.
5 United Nations Committee on the Peaceful Uses of Outer Space.
McGILL LAW JOURNAL
[Vol. 25
the legal status of sensed data. The author discusses the existing
gaps between the states which own the natural resources and those
which own the “intellectual” resources, and emphasizes the im-
portance of proper notification to the sensed state, as well as wide
dissemination of the collected data. In his opinion, “information
is (potentially) more dangerous when it becomes confidential than
when there is free access to it”2
The second part of the symposium is entitled “Impact of Remote
Sensing on the Economic Development of Western Europe and
Latin America”. In the first essay, “Europe and Remote Sensing”,
Michel Bour6ly7 contrasts the views held by ESA member states
with those held by the Latin American countries. The second essay,”
by Ambassador Aldo Armando Cocca, deals with Latin American
views toward remote sensing of natural resources. On the question
of states’ sovereignty over their natural resources, Ambassador
Cocca expresses the view that the concept of sovereignty includes
the right to control not only the access to natural resources in-
formation but also the dissemination of such data. He concludes
that the establishment of a legal regime obliging states to conduct
remote sensing activities for the benefit of all and to the detriment
of none is called for.
Professor Diederiks-Verschoor,
in “Observations on Remote
Sensing Satellites”, considers remote sensing activities in Western
Europe. She believes that damage resulting from remote sensing
activities is not governed by the 1972 Convention on International
Liability for Damage Caused by Objects Launched
into Outer
SpaceY However, there remains considerable doubt as
to the
proper legal regime governing damage caused by remote sensing
activities per se. Even more unsettled is the crucial problem of
ascertaining the types of damage to be included in such a legal
regime.'” Professor Gorove writes on the “Legal and Economic
6 P. 39.
Legal Adviser, European Space Agency.
8″Remote Sensing of Natural Resources by Means of Space Technology:
A Latin American Point of View”.
9 (1972) 8 U.N. Monthly 19. For a general discussion on the subject, see
Jenks, Space Law (1965), 284-85. For a more recent discussion on the types
of damage covered by the Convention, see Matte, Aerospace Law (1977), 157.
10 For a discussion on the principles generally agreed to by states, see
Vlasic, The Evolution of the International Code of Conduct to Govern Remote
Sensing by Satellite: Progress Report (1978) 3 Annals of Air and Space Law
561, 564-71; for a general discussion on the adverse effects caused by data
sensed, see DeSaussure, Remote Sensing by Satellite: What Future for an
International Regime? (1977) 71 Am. J. Int’l L. 707, 714-18.
19791
BOOK REVIEWS – LIVRES NOUVEAUX
Implications of Remote Sensing from Outer Space – Focus on Latin
America”. In a penetrating discussion of the 1974 Argentina/
Brazil draft,’- Gorove assesses the Latin American countries’ push
for expansion of states’ exclusive rights over their natural resources,
their preference for restricted dissemination, and the likelihood
of an international agreement serving the interests of an inde-
pendent world. Professor Pdpin 2 discusses the legal regime govern-
ing remote sensing in the context of the draft proposal submitted
by France to the Legal Subcommittee of the UNCOPUOS.’ 3 He out-
lines the general principles contained in the French draft and the
problem of an equal and mutual participation by the sensed state,
and emphasizes states’ “inalienable right to dispose of their natural
resources and of information concerning those resources”. 14
The third part of the symposium
is entitled “Worldwide
Utilisation and Dissemination of Data Acquired Through Re-
mote Sensing”. The first essay is by Eilene Galloway 0 on the
legal implications of utilisation and dissemination of data.’ The
author submits that open dissemination of survey information over
public lands should continue, despite the scientific advances in
technology by which information is obtained. Galloway
space
assesses a model Memorandum of Understanding on ground stations
between NASA and foreign participating government agencies, and
then analyzes the problem of dissemination of information on a non-
discriminatory basis. S. Neil Hosenball’s illuminating article, “Free
Acquisition and Dissemination of Data through Remote Sensing”,
outlines the objectives to be pursued by remote sensing experiments,
and the obligation of states to make public the results of their
space activities as provided in Articles I and XI of The Outer Space
Treaty of 1967.1-
In addition, Hosenball offers a comparative
analysis of three draft proposals which Argentina, Brazil, France, the
U.S.S.R. and the United States submitted in the 14th Session of
“1 U.N. Doe. A/AC.1/1047
(1974). This draft was co-sponsored by Venezuela,
Chile and Mexico.
12Former Director of the Institute of Air and Space Law, McGill University.
13 “French Proposals with Respect to Remote Sensing of Earth Resources
by Satellite”. The draft text is found at U.N. Doc. A/AC.105/L.69 (1973).
14 p. 86.
15 President of the Theodore Von Karman Memorial Foundation.
10″Remote Sensing from Outer Space: Legal Implications of Worldwide
Utilisation and Dissemination of Data”.
17 Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and Other Celestial Bodies
[1967] 18 O.S.T. 2410, T.I.A.S. No. 6347.
McGILL LAW JOURNAL
[Vol. 25
the Legal Subcommittee of the UNCOPUOS. 18 With respect to a
restricted dissemination scheme, as suggested in the Argentina/
Brazil and France/U.S.S.R. proposals, the author concludes that
such a scheme “would result in remotely sensed data being un-
available to all but a few states having the capability to provide
their own space and ground segments of a remote sensing system”. 9
Dr George S. Robinson’s essay, “For a Worldwide Utilisation and
Dissemination of Data Acquired through Remote Sensing”, rejects
the “[a]ssertion of greater sovereign territorial rights with less
sovereign power”.20 He finds the existing legal positivism unable to
respond to the present day reality, and the enforcement of restraints
by moral test inadequate. Robinson therefore suggests that legal
experts should strive to protect unrestrained access to data by all
nations, and should attempt to ensure effective international inter-
vention to prevent the abuse of such data. Gennady P. Zhukov
discusses the “Problems of Legal Regulation .of Using Information
concerning Remote Sensing of the Earth from Space”. Conceding
that states have the inherent and absolute right to dispose of
their natural resources and information pertaining thereto, he finds
that the common interest of states in data acquired from regions
beyond their national jurisdiction
is sufficient to demonstrate
that access to such information should be recognized by interna-
tional agreement.
Part four of the symposium is entitled “Possible Integrated North
American Landsat Program”. In an essay entitled “The Case for a
Possible Integrated North-American Landsat Program”, Professor
Carl Q. Christol argues that any proposed legal regime imposing
limitations on future sensing capacity is unlikely to be accepted
by the advanced states. He examines the doubts and fears of the
less-developed countries about the potential of modern sensing
technology, and suggests that the greater the number of participants
in a joint program, the more difficult deception will be. Given
its nature as a global enterprise, the more predominantly homo-
geneous (and correspondingly devoid of political and military sus-
picion) a given joint venture can be, the more amenable it will be
to the states sensed. From his firsthand experience with the remote
18The texts of the proposals may be found as follows: France/U.S.S.R.
proposal at U.N. Doc. A/AC.105/C.2/L.99
(1974); Argentina/Brazil proposal,
supra, note 11; United States proposal at U.N. Doc. A/AC.105/C.2/L.103 (1975).
19 P. 111.
20. 116.
1979]
BOOK REVIEWS – LIVRES NOUVEAUX
sensing technology, Dr 1.-C. Henein2 l has contributed a knowledge-
able account of setting a framework conducive to the healthy
regulation of remote sensing activities in space.2 He assesses the
alternatives open to less-developed countries and concludes that a
“remote-sensing equalization program”, with the assistance of the
sensing states-or the international community, would provide the
kind of flexibility needed to permit the sensed states to participate
in a joint venture.
Monroe Leigh 4 writes of the United States policy with respect to
the collection and dissemination of sensed data. 5 He notes the
growth of expectations in the Landsat program, which has created
a wider recognition in the international community of the need to
explore the new technology on an experimental basis. He believes
that an open dissemination system on the most-favoured-nation
basis would be justified, if the sensed state is accorded the right to
gain access to data “as soon as it is available to any third country”.2
In his study, “Canada and the International Principles Governing
Remote Sensing”, Erik B. Wang2 7 advances the view that domestic
legislation does protect aiid regulate access to information dealing
with states’ natural resources; however, the extent to which the
developing countries can combine a scientific infra-structure with
their technological capability is a major problem regarding the
effective use of remote sensing satellites. Wang concludes that “it
might be premature to say that there is a body of customary
international law developing” 8
Part five of the symposium is entitled “Role of the United
Nations”. Ambassador Peter Jankowitsch writes on “The U.N.:
Framework for a Consensus on Remote Sensing”. His article focuses
on international cooperation and common understanding as affected
by the concept of sovereignty. Pointing out that the views of ad-
vanced countries about the peaceful uses of outer space may not
necessarily be shared by other states, he notes that the rule of
2 1 Chief of Program Planning and Evaluation, Canada Centre for Remote
Sensing.
22 “Notes on the ‘Real World’ Framework for Space Law as Applied to
Remote Sensing”.
23P. 142.
2 4 Legal Adviser, Department of States.
25 “United States Policy of Collecting and Disseminating Remote Sensing
Data”.
26 p. 149.
2 Director of Legal Operations, Department of External Affairs.
28 p. 154.
McGILL LAW JOURNAL
[Vol. 25
unanimous consensus adopted by the UNCOPUOS, though entailing
slower progress, ensures that “each step forward is a more solid
foundation for the next step”. 9 He advises that decisions be
reached by truly joint efforts. Two other authors are concerned
with specific issues. David Leive30 deals with Intelsat’s experience
with special reference to its institutional and functional featuresl;
and Brigadier General Martin Menter examines the development of
a legal regime governing space activities through the efforts initiated
by the United Nations and its specialized agencies0 2 The final
essay by Marvin Robinson –
“The United Nations as an Inter-
national Forum for Developing Consensus” –
takes as a point of
departure the question of the appropriate forum for an inter-
national remote sensing system. The author indicates that in this
respect, the United Nations “can make a substantive contribution
to the organization and implementation of such a system”.33 Al-
though he takes a somewhat conservative view of the possibility
of achieving a timely consensus (as he regards the slow progress
made by the UNCOPUOS as inherent), he concludes that “it would
be a great pity if, in an area basically scientific and technical …
we still find it impossible to use the structure created … thirty
years ago –
the United Nations”. 4
This is an interesting series of essays to which one can scarcely
do full justice within the limited space of a review. The editors have
performed a signal service in providing an invaluable compilation
of essays dealing with the various different aspects of remote
sensing by satellite.
C. S. Tang*
29 P. 162.
3oLegal Adviser, Intelsat.
31″The Intelsat Arrangements”.
32,The United Nations Contribution Towards an International Agreement
on Remote Sensing”.
3P. 192.
34Ibid.
* Lecturer and Common Law Reference Librarian, Faculty of Law (Common
Law Section), University of Ottawa, Ottawa.
1979]
BOOK REVIEWS – LIVRES NOUVEAUX
The Discipline of Law. By the Rt Hon. Lord Denning. London: Butter-
worths, 1979. Pp. xxii, 331.
Many regard Denning (,to use a phrase he himself has been
known to employ) as possessing “all the Christian virtues except
resignation”.’ On the other hand, during the last British general
eleotion a then senior member of the British Cabinet was widely
reported as having called him “an ass”. 2 It is not given to many in
their eighty-first year to excite such passionate and contrary opin-
ions.
The Discipline of Law was published on Denning’s eightieth
birthday. Denning describes the nature of the book in the preface:
I have put forward proposals which have had a mixed reception…. Most
of them have found their way into the Law Reports. So recently I de-
termined to collect them together in a book. I have arranged them,
chapter by- chapter, according to the subject in hand. I have quoted
them together by a
extensively from my judgments and connected
running commentary in the hope that these proposals may be discussed
in the Law Schools: and perhaps in future years find acceptance (p. v).
There are several references in the book to law schools and law
students. For example, Denning tells us that High Trees3 is “an ap-
propriate theme for discussion in the Law Schools” (p. 197). In
connection with difficulties surrounding the extension of the liabi-
lity of professional men and of public authorities, he expresses the
hope “that the Law Schools will help to provide the solution to
these problems” (p. 227). Lord Denning’s sensitivity to the role of
law schools –
in educating future lawyers, improving legal scholar-
ship, and assisting in reform of the law –
is one of the characteris-
tics that sets him apart from the lesser judges.
The book is divided into seven sections: construction of docu-
ments; misuse of ministerial powers; locus standi (with the Gouriet
case as centerpiece); abuse of group powers –
the possible judicial
‘Denning has used this phrase in describing what has been said of him by
those who regret that he did not have to retire at age 75.
2 Because of a speech Denning gave at the University of Western Ontario
during the British election campaign, in which he attacked trade unions for
abuse of power. This speech became a minor election issue and there were
some calls for Denning’s resignation. See, e.g., “Denning Rebuked by Unions”,
The Sunday Telegraph, London, April 22, 1979, 4. The article begins: “Mr.
Callaghan [the then British Priie Minister] yesterday led a storm of labour
and trade union protests about remarks made by Lord Denning, Master of the
Rolls and Britain’s most eminent judge, on trade union power”.
3 Central London Property Trust v. High Trees [1947] K.B. 130 (C.A.).
4 Gouriet v. Union of Post Office Workers [1977] 1 All E.R. 696
(C.A.);
rev’d [1978] A.C. 435 (H.L.).
McGILL LAW JOURNAL
[Vol. 25
restraint of which Denning views as “the most important question
affecting society today” (p. 148); High Trees; negligence – with
the case of Dutton v. Bognor Regis UDC emphasized as “one of the
most important of modern times” (p. 255); and the doctrine of
precedent. Much of Denning’s work is not mentioned; there is no
account, for example, of Lloyds Bank v. Bundy,6 Karsales (Harrow)
v. Wallis,* Harbutt’s Plasticine,8 the deserted wife’s equity, or con-
structive trusts. Denning himself provides the explanation: “I have
no time to write more now” (p. 315).
The theme of The Discipline of Law is announced in the preface:
… the principles of law laid down by the Judges in the 19th century –
however suited to social conditions of that time –
the social necessities and social opinion of the 20th century (p. v).
are not suited to
Thus is endorsed the prevailing view of Denning’s leitmotif. But
scepticism is appropriate. For one thing, judges, by reason of
position and personal history9 may not well understand “social
necessities and social opinion” –
and Denning is no exception. Are
the views of Lord Denning as expressed in Re Weston Settlements’0
and Re Brocklehurst” (neither case is mentioned in The Discipline
of Law) those of the average Englishman? Denning himself, in a
rather offhand way, articulates a second theme which has greater
explanatory power:
In the 19th century the individual was predominant in our affairs. In the
20th century it is the group.
Like the powers of government, these powers of the groups are capable
of misuse or abuse. Likewise too, the question is: Has the law any
means of restraining the abuse or misuse of them? (p. 147).
Above all else, the Master of the Rolls moves to protect the indivi-
dual, and in that sense may be regarded, despite his protestations,
as espousing the values of an age gone by.
Attacks on Lord Denning for introducing uncertainty into the
law are commonplace. More of that shortly. What is sometimes not
5 [1972] 1 Q.B. 373 (CA.).
6 [1974] 3 All E.R. 757 (C.A.).
7 [1956] 2 All E.R. 866 (C.A.).
8 Harbutt’s Plasticine v. Wayne Tank & Pump [1970] 1 All E.R. 887 (C.A.).
9See, e.g., Blom-Cooper & Drewry, Final Appeal: A Study of the House
10 [1969] 1 Ch. 223, 245 (C.A.): “There are many things in life more worth
while than money. One of these things is to be brought up in this our
England, which is still the envy of less happier lands.”
of Lords in its Judicial Capacity (1972), ch. VIII.
11 [1978] 1 All E.R. 767, 777 (C.A.): “… do not let the transaction stand so
as to work the destruction of an estate of which he was morally, though not
in law, only a life tenant. It was his duty to preserve the estate in the
interests of his family, the neighbourhood and the country at large.”
19791
BOOK REVIEWS – LIVRES NOUVEAUX
appreciated is the effect of Denning’s use of the courts (particularly
their discretionary jurisdiction) to protect the individual. Here lies
the essence of Denning’s activity.
Lord Denning says of statutes that “[t]he meaning for which we
should seek is the meaning of the Statute as it appears to those
who have to obey it –
and to those who have to advise them what
to do about it; in short, to lawyers … ” (p. 10). It was this ap-
proach that Lord Simonds described as “a naked usurpation of the
legislative function under the thin disguise of interpretation”.1 2
Implied terms in contracts are to be invoked “whenever it is reason-
able to do so –
in order to do what is fair and just between the
parties” (p. 37). So-called “ouster clauses”, designed to stop the
courts from reviewing tribunal decisions, are avoided by holding
that errors of law go outside the jurisdiction of the tribunal and
the tribunal’s determination is therefore void. 3 We are told that
the courts have the authority to inquire into the exercise of a dis-
cretionary power by a minister or his department: “If it is found
that the power has been exercised improperly or mistakenly so as
to impinge unjustly on the legitimate rights or interests of the
subject, then these courts must so declare. They stand, as ever,
between the executive and the subject”.1 4 On the question of locus
standi, high constitutional principles are at stake:
I regard it as a matter of high constitutional principle that if there
is good ground for supposing that a government department or a public
authority is transgressing the law, or is about to transgress it, in a way
which offends or injures thousands of Her Majesty’s subjects, then
any one of those offenders or injured can draw it to the attention of
the courts of law and seek to have the law enforced, and the courts
in their discretion can grant whatever remedy is appropriate.15
Yet another high constitutional principle is found in McWhirter’s
case where the Court of Appeal sought to extend locus standi to
deolaration and injunction:
In these days when government departments and public authorities
have such great powers and influence, this is a most important safe-
guard for the ordinary citizens of this country: so that they can see that
those great powers and influence are exercised in accordance with law.’6
‘2 Magor & St Mellons R.D.C. v. Newport Corp. [1951] 2 All E.R. 839, 841
(H.L.).
Is See Pearlman v. Governors of Harrow School [1978] 3 W.L.R. 736 (C.A.).
14 Laker Airways v. Department of Trade [1977] Q.B. 643, 708 (C.A.).
15 Attorney-General ex rel. McWhirter v. Independent Broadcasting Authority
[1973] Q.B. 629, 647 (C.A.); quoted in R. v. GLC, ex p. Blackburn [1976] 1
W.L.R. 550, 559 (C.A.).
16 Ibid., 649. The House of Lords disapproved of this high constitutional
principle in Gouriet v. Union of Post Office Workers, supra, note 4.
McGILL LAW JOURNAL
[Vol. 25
Nor are domestic tribunals free from the control of the courts.’7
As for the powers of “industrial companies or working men” against
other persons –
for example, the power to form a cartel, to gain
a monopoly, or to establish a closed shop –
the “efforts of the com-
mon law have been set at naught in large measure by the inter-
vention of Parliament. Many of the means or the ends which the
common law would have regarded as unlawful have been rendered
lawful by statute” (pp. 176-77).I8
The picture emerges. In the modem age the individual is beset
on all sides. His freedom may be threatened by trade unions, giant
corporations, tribunals, the executive arm of government, con-
tracting parties seeking to take advantage of his frailties, and even
Parliament itself. Who, in this dire predicament, will champion the
rights of the ordinary man? The judges, says the career of Lord
Denning. Not just to bring nineteenth century legal principles into
accord with twentieth century social conditions, but once again
to make the individual “predominant in our affairs”.
Such an ambition seems admirable enough, but has constitu-
tional implications that may not be wholly palatable. Can we con-
template with equanimity the courts taking such power unto them-
selves? Is our faith in the courts greater than our faith in Parlia-
ment? Do we prefer judges –
to
ministers of the Crown, who may be considerably reduced in status
at the next election? Why should the Court of Appeal prevail over
contracting parties? How much protection –
political hyperbole
aside –
do we need from trade unions and giant corporations? The
answers to some of these questions may be the answers given by
Lord Denning. But the questions are important.
there until age seventy-five –
As I mentioned earlier, a criticism often levelled at Lord Denning
is that he contributes to uncertainty in the law. In a revealing
passage, Denning comments on the Court of Appeal’s obligation to
follow its own previous decisions:
… there were ways and means of getting round a previous decision
that was wrong. The conventional means was by ‘distinguishing’ it, that is,
finding some distinction on the facts or on the law – maybe a minor
distinction. But still it would serve the turn. Another means was by
‘pouring cold water’ on the reasoning given in the previous case; by
saying that it was unnecessary for the decision of the case; or it was
‘7 See Lee v. The Showmen’s Guild [1952] 2 Q.B. 329 (C.A.).
18Recently the Court of Appeal has moved vigourously to restrict the scope
of Parliament’s intervention. See BBC v. Hearn [1977] I.C.R. 685, [1978] 1 All
E.R. 111 (C.A.), and Star Sea Transport Corp. v. Slater (1978) 122 Sol. Jo 745
(C.A.).
19791
BOOK REVIEWS – LIVRES NOUVEAUX
too widely stated; or the Judges cannot have had such cases as this in
mind. If those means failed, it was often possible to find some ground
for ‘departing’ from a previous decision: such as by saying that things
were different now that equity and law were fused, or by relying on one
of the exceptions to the rule in Young v Bristol Aeroplane Co. (ply,
297-98).
lies the well-spring of Denning’s creativity.
In these teohniques
These are the techniques which Denning has used in his relentless
pursuit of individual freedom. Much uncertainty in the law is
created indeed thereby. Is the game worth the candle?
What are we to make of this remarkable man and judge, who
seems to dominate the common law world, and whose career raises
great questions about the function of law and the role of the courts?
A modern-day Lord Mansfield, as is sometimes said? Or an ass?
Philip Slayton*
* Professor of Law, University of Western Ontario. For G.C.S.
McGILL LAW JOURNAL
[Vol. 25
The Practice of Labour Relations and Collective Bargaining in Canada.
By Gerald E. Phillips. Toronto: Butterworth & Co. (Canada) Ltd, 1977. Pp.
x, 266.
It is difficult to review a book which is intended to be used as an
introductory undergraduate textbook. What standard should one
apply? Introductory textbooks seldom exhibit original scholarship,
or great intellectual depth. Such general surveys often have no uni-
fying thesis or theme. Chapters may be arranged so as to supplement
lectures or other teaching material extrinsic to the text. Topics may
bear no apparent relationship to one another and some may be
included only because it is considered imperative that a textbook at
least mention them. Such textbooks are inevitably superficial, and
tend to resemble a set of notes prepared by a lecturer for his use
in giving an introductory course. Phillips’ book is no exception.
In the industrial relations field, the reviewer’s task is further
complicated because there is neither a general concensus on what
a “Canadian”
textbook should contain, nor a widely accepted
existing work against which newcomers can be judged. Indeed, there
is not even a firmly established body of industrial relations theory
or a settled definition of what the subject encompasses. Each
discipline tends to consider industrial relations phenomena ex-
clusively from its own perspective, making it a prodigious task to
assemble a complete picture. As Phillips notes in his preface:
Because the field of “industrial relations” covers a very broad territory,
any effort to produce a comprehensive textbook on Canadian industrial
relations would be an extremely demanding task for any single person.
Any textbook which attempts to integrate the contributions of economists,
lawyers, psychologists, historians, sociologists, corporate managers and
countless others interested in industrial relations could take on the
aspects of a nightmare for both the author and the student… . This in-
troductory book has been written with the modest objective of introducing
the reader to the practice of labour relations and collective bargaining in
Canada. To fulfil this objective, disgressions [sic] into other disciplines,
abstract theoretical discussions and terse legalistic phrases have been
minimized (p. iv).
With this express disclaimer, can one now complain that the
book is shallow and superficial? By restricting himself to a “modest
objective”, Phillips has limited both the possibility of criticism
and the academic stature of his work.
Nevertheless, the book is an excellent introduction to the field
of industrial relations. Phillips has done an exemplary job of
organizing and presenting diverse material. Each chapter is supple-
mented by a list of additional readings; statistical material from
various sources has been assembled to complement the text. Despite
1979]
BOOK REVIEWS – LIVRES NOUVEAUX
the disclaimer that “the book rarely expresses opinions on what are
obviously controversial topics” (p. iv), Phillips does include a
wealth of general information on current issues which, if more
widely known, would undoubtedly elevate the level of public debate
and might even improve the quality of media coverage.
It is unfortunate that Phillips did not set his sights a little
higher; too often he merely whets the appetite and leaves the
reader unsatisfied. The chapter on work stoppages is a case in point.
The discussion concludes with a statistical comparison of industrial
conflict in various countries over the last two decades. These statis-
tics reveal that while the level of industrial conflict (as measured
by man-days lost in Canada) is relatively high, the aggregate time
lost is still less than half of one per cent of total work time, or less
than one-twentieth of the time lost from unemployment. On the
other hand, no effort is made to explain why the Canadian environ-
ment is so “strike prone”, or why our performance is markedly
different from that of other countries. In this, as in other chapters,
Phillips excites a curiosity which can only be satisfied by reference
to the supplementary readings. Nevertheless, Phillips has admirably
accomplished his “modest objective” and created a useful book
for the teacher of industrial relations or the general reader who
wants to improve his understanding of the collective bargaining
system.
R. 0. McDowell*
* Of the Ontario Labour Relations Board, Toronto, Ontario.
