BOOK REVIEWS
LIVRES NOUVEAUX
Modern Legal Philosophy: The Tension between Experiential and Abstract
Thought. By Cornelius F. Murphy, Jr. Pittsburgh: Duquesne University Press,
1978. Pp. viii, 241.
Professor Murphy points out in the Introduction to his book that
the field of modern legal philosophy is fragmented. There exists a
wide range of theories about the nature of law and justice, and each
jurisprudential author competes with his rivals for acceptance of
his view as the exclusive truth about law. The presence of so many
seemingly incompatible approaches, each claiming superiority over
all others, makes it difficult for those not fully initiated into the
secrets of the discipline to appraise the worth of any jurisprudential
insight.
Professor Murphy sees a need for an integrative attitude towards
the study of legal philosophy which emphasizes the complementary
character of diverse interpretations of legal reality rather than the
undeniable discrepancies between these interpretations. He does
not believe that this task can be accomplished by attempting to
reduce the differences between the various theories and advance
an understanding of their interrelationships. He suggests that the
prevailing theories can more profitably be viewed as efforts to grasp
legal reality at different levels of cognition. Some schools of juris-
prudence approach the subject from a purely empirical standpoint,
others advocate a theoretical or epistemological method, again
others inject a speculative element into their inquiries.
Professor Murphy points out, for example, that analytical juris-
prudence of the Austinian variety strove to dissect the basic notions
of developed legal systems in an empirical manner without referen-
ce to the political, social, and economic factors giving rise to these
notions. The sociology of law, taking account of the fact that the
legal and social orders intersect at every juncture, broadened the
scope of empirical investigations of law by viewing the evolution
of legal systems and institutions in the context of the nonlegal de-
velopments of a particular society. Sociological jurisprudence, in
the form it assumed in Lasswell-McDougal’s policy science, center-
ed attention on the correlations between legal decision-making and
social values. Kelsen’s Pure Theory of Law, influenced by Neo-
Kantian views about epistemology, exalted logical rigor and theore-
McGILL LAW JOURNAL
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tical consistency in the analysis of legal phenomena. Some concep-
tions of justice elevated one particular abstract-rational principle
such as autonomy of the person or harmonization of freedoms, to
the rank of a sole criterion of the just and the unjust. The Thomis-
tic natural-law tradition, especially in the modernized form into
which it was cast by Jacques Maritain, advocates a multifaceted
approach to law and justice according to Professor Murphy; it
avoids, in his opinion, the onesidedness of other theories by recog-
nizing various ways of obtaining knowledge, not excluding specu-
lative endeavors. Professor Murphy identifies himself to a farreach-
ing extent with this last-mentioned position.
In the opinion of this reviewer, a strong case can indeed be
made for treating the problems of law and justice from a number
of different methodological premises. The partial autonomy of the
law, which secures to the institution a certain power of resistance
against temporary social fads and short-term political currents,
justifies a technical analysis of basic operative concepts peculiar to
legal systems. On the other hand, the law cannot escape the impact
of significant social forces which will, at least in the long ran, modify
the content of legal rules and transform the structure of legal insti-
tutions. Empirical observation of these forces -and elucidation of
their effect upon legal evolution therefore constitute legitimate
tasks for legal sociology. The descriptive compartment of natural-
law thinking will discern congruences in the legal regulations of
different nations and attempt to trace these similarities to certain
common traits of human nature. In its axiological branch, the
natural-law doctrine will investigate the relations between law and
morality with a view to determining whether departures from
certain minimum postulates of human decency ought to affect the
validity of legal norms. A theory of justice, if it goes beyond a factual
account of competing views on the subject, will introduce a specu-
lative element into legal philosophy by offering a societal blueprint
which, in the opinion of its protagonist, will respond to human
needs and aspirations to an optimum degree.
Today, many philosophers and social scientists may object to
any revival of speculative thinking as an acceptable form of scholar-
ly undertaking. It should be kept in mind, however, that the greatest
creative scientist of the twentieth century, Albert Einstein, recog-
nized the need for speculative theorizing even in the realm of
physics. He said: “Since … sense perception only gives information
of this external world or of ‘physical reality’ indirectly, we can only
19783
BOOK REVIEWS – LIVRES NOUVEAUX
grasp the latter by speculative means.”‘ He also observed that
“every true theorist is a kind of tamed metaphysician, no matter
how pure a ‘positivist’ he may fancy himself. ‘2
In the physical sciences, a theory originally arrived at by way
of speculation or experience-guided intuition will be in need of
subsequent empirical testing in order to secure its ultimate accep-
tance. In the area of axiological thinking about justice, which in-
volves theorizing about an “ought” rather than an “is”, empirical
verification of a certain view as being “right” is not possible in the
same sense. But verification of a different kind occurs when an
image of justice arrived at by way of reflective thinking becomes
incorporated into the political and social structure of a nation. This
happened, among others, to the philosophies of justice elaborated
by Montesquieu, Locke, and Rousseau. When we consider the poten-
tial pragmatic impact of theoretical constructs upon social reality,
we must fully concur with Professor Murphy’s thesis that the ten-
sion between experiential and abstract modes of juristic thought
can be resolved in principle by acknowledging the validity of both
approaches and the possibility of a fruitful interrelation between
them.
The remainder of this review will be devoted chiefly to that
part of Professor Murphy’s book which contains -an incisive critique
of the theory of justice developed by John Rawls, a work that has
attracted a great deal of interest among legal scholars, philosophers,
and social scientists The first principle of justice set forth by Rawls
requires that each person should have an equal right to the most
extensive system of basic liberties compatible with an equal liberty
for all. The second principle demands that social and economic
inequalities should be arranged so that they are to the greatest
benefit of the least advantaged and attached to offices and positions
open to all under conditions of fair equality and opportunity. Ac-
cording to Rawls, the first principle should have priority over the
second in any advanced society, with the result that liberty may be
restricted only for the sake of liberty.4
Professor Murphy criticizes this conception of justice, among
other reasons, on the ground that it is defined only in terms of what
1 Einstein, The World As I See It (1934), 60.
2 Einstein, On the Generalized Theory of Gravitation (1950)
182 Scientific
3 Professor Murphy’s criticism is found on pp. 138-55 of the book here
American 13.
reviewed.
4 Rawls, A Theory of Justice (1971), 302.
McGILL LAW JOURNAL
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a rational person would desire in order to promote his personal
advantage. In his opinion, it neglects the links which tie the indivi-
dual to the larger society of which he or she is a part. Murphy also
takes issue with Professor Rawls’s advocacy of a market economy,
pointing out that this facet of his theory is removed from concrete
social reality, in which oligopoly has become a dominant feature
unlikely to be displaced by a return ‘to nineteenth-century competi-
tion in an open market. He also offers a cautious critique of Rawls’s
view that personal merit should have no place in the distributive
scheme of justice, since the distribution of natural endowments is
regarded by Rawls primarily as a fact of nature.5 Professor Murphy
believes that, although there are reasons for not making personal
merit an explicit part of distributive justice, the moral significance
of efforts to develop and improve the talents which nature has
bestowed upon an individual should not be ignored. Furthermore,
Professor Murphy expresses his reservations concerning Rawls’s
“difference principle” (requiring that social and economic inequali-
ties be permitted only to the extent that they benefit the least
favored members of society); he reasons that this principle is too
onesided to serve as a panacea for solving highly complex problems
of social and economic justice. Using an example of my own, would
a high school course for specially gifted students be unjust because
no conclusion can be reached that such a course would be to the
advantage of the pupils at the bottom of the class, or to deprived
members of society generally? 6 The difference principle, even though
it has value as a guide to social action in certain situations, might
lead to the encouragement of mediocrity if universally applied;
and mediocrity is one of the banes of contemporary Western society.
In this reviewer’s opinion, Professor Murphy’s criticism of the
Rawlsian philosophy of justice is well taken. This philosophy is part
of a trend, also exemplified in somewhat different ways by the
writings of Robert Nozick and Ronald Dworkin,7 to predicate the
theory of justice almost exclusively on the conceptions of rights
and entitlements. The notion of a common good, which places limi-
tations on an individual’s liberties not only for the sake of protect-
5Ibid., 107.
6 Rawls admits that “it is not in general to the advantage of the less
fortunate to propose policies which reduce the talents of others.” Ibid., 107
[emphasis added]. The main problem is, however, whether a special slot
should be reserved for merit in a theory of justice.
7 See Nozick, Anarchy, State, and Utopia (1974); Dworkin, Taking Rights
Seriously 1977), especially Ch. 7.
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BOOK REVIEWS – LIVRES NOUVEAUX
ing the rights and freedoms of others but also for the purpose of
safeguarding important public concerns, is deliberately neglected
in the works representing this trend. In view of the fact that the
perplexing problems of poverty, crime, population explosion, ecolo-
gical challenge, and depletion of natural resources can be resolved
only by an exertion of individual restraint, discipline, and coopera-
tive effort demanding certain sacrifices, this philosophy should be
characterized as regressive rather than progressive.
This characterization does not imply that we should return to
the medieval view that law and justice are to be measured pri-
marily in terms of their contribution to the public good.8 Human
rights are of extremely great importance, as long as they are not
conceived as absolutes incapable of being limited for overriding
public purposesY The endeavor to synthesize private goods with the
common good makes, of course, very stringent demands on the
wisdom and resourcefulness of the public authorities; and it may
be necessary to have certain institutional devices, such as a reason-
able amount of judicial supervision, to correct serious misjudg-
ments.
Professor Murphy’s work provides a much-needed antidote
against latter-day attempts to return to the philosophies of Locke,
Kant, and (at least in Rawls’s theory) Rousseau, with certain ac-
commodations made necessary by twentieth-century conditions.
The question whether, as Professor Murphy suggests, a neo-Thomist
legal philosophy offers a satisfactory alternative to the neo-liberal
trend will be left open in this appraisal of his work. The general
tenor of the appraisal, however, will leave no doubt in the mind of
the reader that this reviewer regards Professor Murphy’s book as
a worthwhile and constructive contribution to the philosophy of
law.
Edgar Bodenheimer*
of the English Dominican Province, 1913-1925), Q. 90, art. 4.
1) This proposition is discussed in greater detail by Bodenheimer, Jurispru-
S See, for example, St. Thomas Aquinas, Sumina Theologica (transl. Fathers
dence: The Philosophy and Method of the Law rev. ed. (1974), 240-45.
* Professor of Law Emeritus, University of California, Davis.
McGILL LAW JOURNAL
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Unfair Contracts. By Sinai Deutch. Lexington, Mass. and Toronto: D.C. Heath
& Co., 1977. Pp. xvi, 314.
In Unfair Contracts, Dr Deutch assumes the -formidable task of
exhaustively researching and commenting on the doctrine of un-
conscionability, particularly but not solely as contained in 2-
302 of the Uniform Commercial Code. A discussion of both the pre-
code and post-code eras provides -an historical perspective and an
analysis of current problems with suggested solutions surrounding
unfair contracts.
While there has been much excellent writing on the doctrine of
unconscionability (from Llewellyn to Leff and beyond, as Professor
Pooley’s foreword indicates), this work represents the first attempt
to deal with all aspects of the doctrine. The ‘book is not mere re-
petition of the views of others, but a useful and informative analysis
of what others have had to say on the subject of unconscionability,
in a critical manner, with the writer’s prejudices clearly stated. Nor
is it a merely academic discussion, for as an epilogue to his text,
Dr Deutch suggests a revision of 2-302 to provide what he con-
siders to be a balanced and fair solution to the problems posed by
unconscionability in commercial and consumer sales contracts.
In many ways it is surprising that fairness in contracts requires
much discussion in liberal democracies where justice and equality
are the reason for all things legal, political and social. Of course,
ways of achieving fairness and equality vary in different jurisdic-
tions and there are innumerable notions of what comprises these
elusive concepts. While few would disagree that contracts should
be “fair” as between the parties, there would be considerable dis-
cussion as to what is “fair” in given contractual situations and how
fairness should be achieved. The nineteenth century view was to
leave market forces to decide these questions. That this has been
manifestly unsuccessful is illustrated by the numerous legislative
interventions into the market place (of which 2-302 is one) even
in countries with the strongest orientation to free-enterprise. It is
highly doubtful that this technique (if it may be called that) could
ever have worked successfully, especially in the highly complex
world of twentieth century industrial society.
Dr Deutch commences his study with a discussion of the tradi-
tional doctrines used by courts to limit the abuses of market power
evident in unfair contracts. He highlights commonly accepted defi-
ciencies in these covert methods of relieving oppressed parties and
calls for an open attack on unfair “bargains” as have so many others.
1978]
BOOK REVIEWS – LIVRES NOUVEAUX
He continues by dealing with the apparent dichotomy between the
pervasive concept of freedom of contract and interference by courts
in executed contracts, and concludes, although perhaps not in so
many words, that all freedoms (including freedom of contract)
have meaning only if they are accompanied by responsibilities.
A discussion then follows of 2-302, the Official Comments, re-
levant cases, and academic writing which sheds considerable light
on the pressures and compromises which led to the phraseology
of the article and on what it was originally intended to achieve. For
instance, it becomes clear that the article was originally intended
to be used in contracts between merchants rather than in consumer
transactions. That emphasis has now changed considerably, provid-
ing a useful, if not perfect, tool for consumer protection.
Deutch expresses concern over the section’s lack of a definition
of unconscionability or of guidelines towards an understanding of
what is. meant by the doctrine. The nature of the concept, as he
readily admits, makes it impossible to define it exhaustively. “Shop-
ping Lists”, as contained in trade practices acts of those Canadian
provinces possessing such legislation,’ are not only guides but are
also definitional in stating that a particular activity or act is un-
conscionable or will give rise to a contract or contractual term which
is unconscionable. There will always be a residue of situations, some
not yet invented, which will fall outside the listed guidelines. Here
the law is left with its vague concept of unconscionability –
but
is it any the worse for it? Deutch seems more concerned about un-
certainty in the law than he need be. Even those areas considered
quite settled by interested onlookers are full of uncertainties when
examined in depth. Uncertainty is an integral concept, especially
in developing areas such as consumer protection, and indeed in all
other areas concerned with protecting the weak. Flexibility and de-
velopment carry with them uncertainty but this should not concern
us greatly considering the general uncertainty inherent in law.
There are other illustrations of Deutch’s conservatism. For
instance, he expends considerable effort in trying to deduce from
judicial pronouncements the present scope of the doctrine of un-
conscionability, while only briefly commenting on the deficiencies
in the case law. While this approach is of value, at least for the
academic, a more searching analysis of what the doctrine should
be, whether it can really solve the problems it has been set to
solve, and whether some other concept could do the job more effec-
I S.B.C. 1974, c. 96, s. 2; S.O. 1974, c. 131, s. 2.
McGILL LAW JOURNAL
[Vol. 24
tively would have been better. To be fair, however, Deutch does
set out to provide a text for both practitioners and academics.
The discussion predictably concludes that, in order to be really
if only in terms of
helpful, unconscionability must be defined –
guidelines. Certainly guidelines help but not in the residual unfore-
seen situations. It must be recognized that while courts may be the
best or only arbiters of disputes, inconsistencies, reversals of trends
and general confusion will almost inevitably arise.
Deutch finds Slawson’s well-known suggestions
in Standard
Form Contracts And Democratic Control of Lawmaking Power2
revolutionary, and the proposals set out in the National Consumer
Act (prepared by the National Consumer Law Center) which pro-
vided for a much more imaginative set of remedies, not always
justified because they may not be fair to merchants. On reflection,
such remedies as punitive damages, class actions, and an administra-
tor’s powers to seek injunctions and temporary relief and participate
in class and other actions on behalf of the consumer do not appear,
today, to be all that radical. In fact, Canadian trade practices legis-
lation 3 has incorporated many of them. Deutch also feels that a
contract should not be rendered unconscionable because of anything
which might occur after the contract date –
another principle
from which Canadian legislation has derogated. 4
There is a short but valuable comment on the Israeli Standard
Contract Law of 19645 which provides for administrative machinery
to review clauses in standard form contracts to test them for fair-
ness. However, the law does not require all standard forms to be
presented to the administrative tribunal for scrutiny and for obvious
reasons has not been utilized very much. The law also provides the
courts with the power to invalidate clauses prejudicial to consumers.
An amendment in 19696 permitted relevant government officials and
non-governmental organizations, such as consumer groups, to pre-
sent contracts and terms to the tribunal for review, but still the
administrative procedure is infrequently used.
Based on the Israeli experience and his dislike of Slawson’s
proposals, Deutch supports judicial rather than administrative con-
2 (1971) 84 Harv. L. Rev. 529.
S.B.C. 1974, c. 96, ss. 16, 20, 24; S.O. 1974, c. 131, ss. 4, 6, 7.
4 S.B.C. 1974, c. 96, s. 3.
5 Sefer Ha-Chukkim no. 418 of 5724, p. 58; Laws of the State of Israel, vo.
18, p. 51 (1964).
6 Sefer Ha-Chukkim no. 560 of 5729, p. 140; Laws of the State of Israel, vo.
23, p. 151.
19781
BOOK REVIEWS – LIVRES NOUVEAUX
trol. As a result, he concludes by rewriting 2-302 to provide guide-
lines for the courts on what constitutes unconscionability in com-
mercial and consumer contracts and to expand the remedies avail-
able to aggrieved parties. As for the latter, Deutch is only prepared
to go as far as awarding lawyer’s costs to the successful party –
something which would normally occur in traditional common law
jurisdictions. He does not suggest, for instance, that minimum da-
mages (such as $100) be awarded to the successful party in a suit
involving unconscionability in order to encourage consumer actions.
Such a provision is contained in the Uniform Consumer Sales Prac-
tices Act.7 There is no mention of the possibility of imposing crimi-
nal sanctions on parties found to have used an unconscionable con-
tract, but as Deutch does not favour administrative procedures to
help control the use of unconscionable contracts, he does not accept
the tri-cornered approach taken by Canadian legislation, that is, the
use of civil, administrative and criminal actions to quell unfair
market practices.
The “shopping lists” of Canadian trade practices acts might
provide a useful model to Deutch. For instance, as in British Co-
lumbia, a contract may be cpnsidered unconscionable if, at the time
the transaction was entered .into, there was no reasonable probabili-
ty of full payment of the price by the customer.’ Similarly, as in
Ontario, a contract may be unconscionable where the seller knew
or ought to have known that the buyer would not be able to receive
a substantial benefit from the subject matter of the transaction.9
In conclusion, Deutch states that stricter standards should be
applied to adhesion contracts because of the lack of assent involved,
that parties to an unconscionability action should be given a fair
opportunity to show why the contract or clause should or should
not be enforced, and that whether or not a contract or term is un-
conscionable should be decided in the light of its commercial back-
ground, setting, purpose, and effect.
The book was informative and interesting, although not as
stimulating as this writer had originally hoped and thought it would
be. It is a revised version of Dr Deutch’s doctoral thesis and perhaps
bears that mark: to provide a basis as well as a stage for the author’s
main thesis, many avenues are explored which arguably could have
been seen to be cul-de-sacs from the outset. For instance, the dis-
7 Uniform Laws Ann. 212 (master ed. Supp. 1975).
8 S.B.C. 1974, c. 96, s. 3(2).
9 S.O. 1974, c. 131, s. 2(b)(iii).
McGILL LAW JOURNAL
[Vol. 24
cussion of whether or not the doctrine of unconscionability in
2-301 is new or is developed from common law and equity is perhaps
of passing interest but not very useful. More to the point is what is
happening to the concept now and what will happen to it in the
future. It is clear, as Dr Deutch points out, that the doctrine has
not generally been interpreted as limited by common law or equit-
able principles, but has frequently been applied by courts in a more
unrestrained manner.
For the non-American reader, some discussion of recent trade
practices legislation in Canada and of the development in England
of the doctrine of inequality of bargaining power would have been
both valuable and relevant. All in all, however, this is a useful book.
Although perhaps not daring in his conclusions and suggestions, the
author has provided a valuable guide to the -doctrine of uncon-
scionability in the United States and anyone seeking to research
this area of the law would be well-served to read this account at the
outset, since it discusses all of the important decisions and writings
on the subject.
Christopher S. Axworthy*
“Associate Professor of Law, Dalhousie University.
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BOOK REVIEWS – LIVRES NOUVEAUX
Essays on the Constitution: Aspects of Canadian Law and Politics. By Frank
R. Scott. Toronto: University of Toronto Press, 1977. Pp. xiv, 422.
It was the Great Depression which turned Frank Scott towards
Canadian democratic socialism, and led to the active and distinguish-
ed role he was to play from the beginnings of the League for
Social Reconstruction, through the CCF to the NDP. He was not
only a political activist but a constitutional lawyer whose place in
a great generation of legal scholars was established by the force
and clarity of his ideas, enhanced by his graceful and lucid com-
mand of language.
All legal scholarship reflects political values and this is perhaps
particularly true of constitutional law. Scott says in his Preface,
This involvement [with the CCF] sharpened my insight into the nature
of law and particularly constitutional law. I saw that every legal change
involves a choice of values, a selection of objectives, and in this sense I
was greatly attracted to the concept of law as social engineering being
then advanced by the great American jurist, Roscoe Pound. Changing
a constitution confronts a society with the most important choices, for
in the constitution will be found the philosophical principles and rules
which largely determine the relations of the individual and of cultural
groups to one another and to the state. If human rights and harmonious
relations between cultures are forms of the beautiful, then the state is
a work of art that is never finished. Law thus takes its place, in its theory
and practice, among man’s highest and most creative activities. (p. ix)
Controversy, even when it is concerned about social values, tends
to be relatively short-lived as new issues arise and problems are
seen in fresh dimensions. One must ask how well have these essays
–
stood the test of time. The
answer must be that they stand up very well. Legal writing is often
pedestrian, convoluted, and dull. Not least of the virtues of Frank
Scott’s essays is their demonstration that the law can be illuminated
by lucidity and wit. But these essays are more than models of
splendid prose: they also address themselves to the problems of
constitutional order which will always be with us. In particular
they explore the complex relationship between order and freedom
and the nature of constitutional government in a multi-faceted so-
ciety, for constitutional law concerns itself with the norms which
bind governments in relation to the citizen. It defines how the
social framework operates to maintain the social contract between
the state and its members.
some written forty years ago –
In these essays three themes predominate. The first reflects the
preoccupation of legal scholars in a country gradually gaining con-
trol of the full panoply of independent statehood within the chang-
McGILL LAW JOURNAL
[Vol. 24
ing structure of the British Commonwealth through the dispersal
of the remnants of Imperial sovereignty, and the implications of
these changes on the law of the Canadian constitution. All of this
is now past history but its value for a new generation of lawyers,
to whom it must be a forgotten past, is that the issues are phrased
with a clarity and force not found elsewhere.
The second theme is the changing nature of Canadian federalism.
Scott remains a firm believer –
as were the Fathers of Confedera-
tion –
in a strong federal government moving firmly into control
of new fields as they assume a national dimension, while provincial
governments are left with a modest role outside the areas of na-
tional interest and policy. The difficulty with this position today
is, in part, that it fails to take account of the fact that provincial
politicians and civil servants, who now control great political
resources, are in an unassailable position to expand and defend their
powers under the constitution. For this reason the price of going
back to a dominant and expanding central government, made
tolerable by sectional representation in its major institutions, has
become too high. The alternative is to devise institutional arrange-
ments which minimize the cost and maximize the benefits in a state
which cannot avoid a high degree of centralization. The point where
Scott differs from most of the centralists of his generation is in his
sensitive appreciation of the problem presented by Quebec and in
his persuasive demonstration, which long antedated his member.
ship in the Royal Commission on Bilingualism and Biculturalism,
that Canada has always been a state in which the existence of
the French language and culture alongside the English is a basic
constitutional value with deep historic roots. His essays and ad-
dresses on this theme, both in French and in English, reflect his
own deep roots in Quebec.
The third theme is the relationship between liberty and order
and the legal basis of the concept of a bill of rights. One can sense,
in the progression of his writing on this theme, how the gradual
acceptance of the idea of a bill of rights came to be achieved, and
also see at work the influence of scholarly writing in bringing
about major political change. He rightly stresses the common
law origins of the English notions of civil and political liberty and
argues that in Canada, partly because of the diverse origins of
the Canadian people to whom these ideas do not have an impelling
historical sanction, and partly from the need to blend more “col-
lective” rights such as language into them, there is need to for-
mulate a bill of rights containing explicit guarantees appropriate
to Canadian conditions.
1978]
BOOK REVIEWS – LIVRES NOUVEAUX
It should not be forgotten that the positive recognition of these
rights by Canadian courts owes much to the persuasiveness of his
own legal arguments in a number of important cases which arose in
Quebec. Political conviction and necessity drove Scott to delve
deeply into the law in these matters and in the end to contribute
considerably to its development. This has led him to important
insights. Those trained in the common law should find much to
think about in his essay on the Bill of Rights and Quebec law in
which he demonstrates that in some important respects the civil
law of delict provides more effective remedies than does the law of
tort. It is a reminder that our two separate Canadian legal tradi-
tions can do much to strengthen each other.
Changing the formal structure of the constitution is not an easy
matter. We are still debating changes in constitutional arrangements
which were outmoded in Scott’s youth. But constitutional adapta-
tion does take place. The spirit of the constitution may change
without any alteration in constitutional forms. The extent that our
constitution reflects in its operation more democratic, open, and
humane values is the result of a change in the climate of opinion
in the last fifty years. Much of that change is the work of men like
Frank Scott who challenged outmoded assumptions and thus altered
the constitutional climate.
J. R. Mallory*
* R. B. Angus Professor of Political Science, McGill University.
McGILL LAW JOURNAL
[Vol. 24
The Law of Habeas Corpus. By R. J. Sharpe. London: Oxford University
Press, 1976. Pp. 223.
Described by the publishers as “the most comprehensive book
written on this central issue of constitutional law”, this is an Oxford
doctoral thesis which reflects great scholarship. Dr Sharpe is a
Canadian who now practises law in Toronto. His book, however,
is not focused primarily on Canadian law but on the law of England
where the remedy was invented. There are nevertheless many refer-
ences to Canadian law and practice. We are told, for example, albeit
in a foot note (p. 135, n. 4), that the important section 6 of the
Habeas Corpus Act of 1679 (which has been replaced in England)
is still in force in Canada. In the matter of commitments for com-
pulsory treatment and of bail, the author depends heavily on Cana-
dian cases. There are also separate sections on federal jurisdictions
and on appeals and successive applications in Canada. But there is
no mention in the book of the Canadian War Measures Act or even
of Canadian immigration law.
There are several references to the European Convention for the
Protection of Human Rights and Freedoms but none to the Universal
Declaration of Human Rights or to the United Nations Covenant
on Civil and Political Rights.
The book is much more than a description of existing law and
practice in an historical setting. The author displays a healthy scep-
ticism about the correctness of some of the leading cases, and there
is sharp criticism of certain Canadian cases relating to the question
whether an applicant for the writ must be in actual physical custody:
“In other words, the Canadian courts have done little more than
cite cases for propositions which they do not support and they have
ignored the cases which were more directly on point. There has not
been a thorough examination of the principles at stake, but rather
a shabbily supported assumption that the applicant must be locked
up before he can apply for the writ.” (p. 164)
There are also many suggestions for moulding the law to meet
new conditions.
The book is clearly meant for students and practitioners. Dr
Sharpe might consider putting his erudition to another service –
writing a popular book in which there would be something more
about the factual situations behind the cases and which could be
understood by the general reader. For the public as well as the legal
profession needs to know n-ore about this ancient remedy. And, as
1978J
BOOK REVIEWS – LIVRES NOUVEAUX
675
Professor Myres McDougal (of Yale University) has often said, it
is necessary to bring human rights law down from its level of
abstraction.
John P. Humphrey*
