BOOK REVIEW
Jurisprudence: Readings and Cases
Mark R. MacGuigan
University of Toronto Press, 1966, pp. xx, 666
This book is, to the best of my knowledge, the first classroom
text on Jurisprudence produced in Canada. It is the second edition
of a work previously published in 1963, under the same auspices,
in mimeographed form, and selling at a much lower price (the new
version is priced at $20.00).
The courses taught under the name “Jurisprudence” vary widely
in vocabulary, scope, content, and methodology, depending on the
bias and preferences of the teacher. Professor MacGuigan, who for-
merly taught Jurisprudence at the University of Toronto School of
Law, and now teaches this subject ‘at the Osgoode Hall Law School,
shows his preferences clearly in this annotated collection of readings.
With some of these preferences I am in complete accord, and with
others I differ from the author; but these matters of emphasis and
orientation are inevitable when the subject taught is Jurisprudence.
I found the first edition of Professor MacGuigan’s book sufficiently
original and useful to have begun using it in the introductory course
in Jurisprudence at the Law Faculty of McGill University over two
years ago, in preference to one of the several available American
and British books on the subject. My reasons relate to an interest
I share with Professor MacGuigan in the judicial process. I have
been concerned for some time with the apparent irrelevance of legal
philosophy and the schools of jurisprudence in the view of many
hard-nosed, practice-oriented
law students. Unless the course on
Jurisprudence is an elective one, designed for those students with
a substantial interest in philosophy, the teacher of Jurisprudence
is thus faced with a serious problem. The ideal solution would seem
to be to show the skeptical student how the orientation of the judge,
be it positivist, analytical, sociological, Thomistic, or any other, is
an important factor in determining the decision he will render and
the rationale for the decision. What better way to do this than to
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BOOK REVEIEW
illustrate the consequences of adhering to a particular school by
means of actual cases ? Yet the average Jurisprudence book is either
a collection of excerpts from the writing of legal philosophers, un-
leavened by any cases, or else it is a heavily-footnoted text, in which
the author covers the various approaches in some systematic way –
historically, for example, or by contrasting the various schools, or
by stating his own views and examining other philosophies in the
light of his own. There are, of course, exceptions to this general
rule. Lon Fuller’s mimeographed readings include some beautifully-
contrived fictitious cases indicating the consequences of the judge’s
own philosophy, be it imbued with positivism, linguistic analysis,
natural law, American legal realism, or the sociological point of view.
Dennis Lloyd’s Introduction to Jurisprudence with Selected Texts
(2nd edition, Stevens, London, 1965)
includes a fair number of
cases, and Thomas A. Cowan’s little American Jurisprudence Reader
(Oceana, N.Y., 1956) also uses a number of cases in a similar way.
Professor lMacGuigan, however, is the first person, to my knowledge,
who has done this systematically. His book is divided into five
chapters or sections, each of which is composed of two parts: a
series of cases, followed by a series of readings. From time to time,
the author inserts a note of his own. Thus, the first chapter is an
introduction to the subject in general terms, while the following
chapters are entitled, respectively, Positivism, Natural Law, Thought,
Sociological Jurisprudence, and the Judicial Process. (Perhaps the
order of the chapters on positivism and natural law could have been
reversed on historical grounds, but the author’s order is justifiable
in terms of the greater relevance of positivism to most contemporary
judicial decision-making). At the end of the book, there is an ap-
pendix on Jurisprudence in Canada, composed of a note by Professor
MacGuigan on Canadian writings in the field, an article by Professor
Edward McWhinney, and a speech by Judge Samuel Freedman.
The first edition of Professor MacGuigan’s book lacked the ap-
pendix on Canadian writing, as well as some of the more recent
readings now included in the second edition, such as the excerpt
from Judith Shklar’s Legalism in Chapter I, Rawls’ Justice as Fair-
ness in Chapter II, d’Entrxves’ well-known article The Case for
Natural Law Re-examined in Chapter III, and Irving Kayton’s arti-
cle on Jurimetrics in Chapter IV, to name only some examples. All
these additions have rounded out the text and brought it up to date.
Similarly, Professor MacGuigan’s decision to put the cases ahead
of the readings in each chapter also constitutes a significant im-
provement; in the first edition, the order was reversed, and the
student whose primary interest was not philosophy had to wait
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[Vol. 13
patiently before seeing the importance of the theory under discus-
sion, while he can now plunge directly into the practical problems
and then find out where theory can help to solve these.
There are some areas in which it appears to me that further
improvement would be possible in future editions of this valuable
book. Few of the cases selected are Canadian in origin, and it would
have been appropriate, in a Canadian work, to make a special effort
in this area. For example, the chapter on Natural Law should surely
have included the Quebec case of Chabot v. Les commissaires d’cole
de Lamorandi~re,’ to name only one example; in this case Thomistic
principles were expressly used by Roman Catholic judges to prevent
the imposition of Catholic religious instruction in a public confes-
sional school contrary to the wishes of parents. It would seem to me
that a significant number of Canadian cases could be found to illus-
trate the various jurisprudential schools at least as well as many
of those chosen. In fact, I sometimes found it hard, at first glance,
to determine the relevance of some of the cases used –
presumably
this problem would be much more acute for the uninitiated student.
If a lack of obviously relevant cases exists, it might be better to
follow Fuller and invent fictitious ones to fill the bill, rather than
risk weakening the impact of the case selected because of the many
other issues involved in it. Insofar as the readings from the various
writers and legal philosophers are concerned, I would personally
have preferred a greater emphasis on modern writers whose literary
style and point of view are likely to be more acceptable to the
student. Extensive readings from Hobbes, Bentham and Austin are
certainly not the simplest of fare. Professor MacGuigan’s own back-
ground in philosophy is obvious; his predilection for neo-Thomism is
evidenced by lengthy selections from Aquinas as well as such more
recent natural law writers as Dabin, who might be well-nigh incom-
prehensible to many students. Historical and sociological writers have
been grouped together, a not unjustifiable decision on the part of
the author. However, one might well ask why the American Legal
Realists should be grouped under the heading of “The Judicial Pro-
cess” with a positivist article like Goodhart’s Determining the Ratio
Decidendi of a Case, instead of being given a chapter of their own
or grouped with the sociological writers. Besides, I would have thought
that the entire book is primarily oriented towards the judicial pro-
cess, in contradistinction to many other jurisprudential works; al-
though it is true that the writers who appear in the earlier chapters
of the book are also concerned with many other aspects of the law.
1 (1957) Q.B. 707.
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BOOK REVIEW
One might also ask why Kayton’s article on Jurimetrics should be
placed in this same chapter, when its real relevance is to the whole
new area of research and development opened up by modern technology
(particularly the digital computer), symbolic logic, and new mathe-
matical and statistical techniques of analysis. It is to be hoped that in
future editions, an entire chapter on Jurimetrics might be envisaged.
Still, it must be remembered that even here Professor MacGuigan is a
pioneer and an innovator; I know of no other collection of readings
on “Jurisprudence” which has included this type of material.
In sum, Professor MacGuigan is to be congratulated for having
produced this work. It is not only a noteworthy contribution to the
small amount of Canadian literature in the field of Jurisprudence,
but can hold its own with the several well-established collections of
readings, largely American in origin, which have had the market
largely to themselves for so many years, and all of which can be
criticized or faulted in some minor way. The highly personal charac-
ter of the subject makes some slight criticism of any jurispru-
dential work virtually inevitable on the part of any reviewer. This
probably reflects as much on the reviewer as on the work reviewed,
indicating as it does a mere divergence of legitimate views in an
area where censensus is unlikely, and where diversity is a genuine
source of richness.
Perry MEYER,
Associate Professor of Law,
McGill University.
