Harvard Law Review Association

Review
Author(s): T. B. Smith
Review by: T. B. Smith
Source: Harvard Law Review, Vol. 82, No. 2 (Dec., 1968), pp. 490-497
Published by: Harvard Law Review Association
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 BOOKREVIEWS
THE ORACLES OF THE LAW. By John P. Dawson.' Ann Arbor:
University of Michigan Law School. I968. Pp. xix, 520. $15.00.
Securus iudicat orbis terrarum. The verdict of comparative
lawyers and legal historians generally will certainly acclaim Pro-
fessor John P. Dawson's masterly achievement in The Oracles of
the Law. Indeed, the present reviewer will venture the prophecy
that the book is probably entitled to survival among the select
corpus of legal classics. Much legal literature is written to meet
the urgent but changing needs of practice or instruction; much
is written in hope of stirring an inscrutable public with a young
man's dreams or an old man's vision; much is written in vanity,
haste, or as a crutch to academic preferment; fewer but too many
American books on law (and other social sciences) are written
with encyclopedic learning which reads like a bad translation
from German garnished with footnotes such as would reflect
credit upon a computer. Most will fade from sight before the
present century passes. The viable classics of the law are, in-
stead, those few books whose authors matched profound scholar-
ship with lucidity of expression and chose an enduring central
theme capable of historical and comparative treatment. A gift
of accurate haruspication is not to be discounted.
Oracles of the;Law is from the pen of a scholar of high repu-
tation already established- an authority on the law of contracts
and restititution in particular and author of A History of Lay
Judges.2 This most recent work is thus Professor Dawson's Sec-
ond Book of Judges. The title, taken from Blackstone's de-
scription of English judges, denominates what is in essence a
study of the nature and extent of the contribution that case law
has made to the legal systems of England, Rome, France, and
Germany (p. xi). Since selection was essential, one approves the
wisdom of his choice, while regretting that an even wider range
of systems could not possibly be analyzed. The author relates his
historical exposition of these systems to modern usage in each,
achieving a synthesis by comparative method. Many compara-
tive references also concern American practice, which is not sep-
arately treated for the very good reason that the basis of the
book is the course of Cooley Lectures deliveredby Professor Daw-
son at the University of Michigan Law School in 1959, and there-
fore to an audience requiring no exposition of current attitudes
'Fairchild Professor of Law, Harvard Law School.
2
(I960).

490

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I968] BOOK REVIEWS 491

toward case law in the United States. The reviewer ventures the
suggestion that if (as it should be) this book is published in succes-
sive editions, the author might usefully add an appendix summa-
rizing his interpretation of American thinking on legal precedent
for the benefit of readers who have not been trained in American
law schools. Foreign readers have to seek enlightenment on
American practice at second hand without the expertise to dis-
tinguish confidently between the major and minor prophets of
the past half century. The learned author gives ample guidance
to these contributions in footnotes, but in the text he sometimes
speaks with the unadorned authority of an Ulpian communi-
cating with fellow prudentes.
The fact that Professor Dawson refrained from publication
for over eight years after delivering the Cooley Lectures indi-
cates, it is thought, the desire to produce a master work on a
theme which has long fascinated him and to which probably he
alone could do full justice. Only a master could present the re-
sult of such wide and profound research in so elegant and read-
able a style, illuminated with wit and adorned with memorable
and quotable gems, such as, "Why bother to kill a ram if the
oracles will speak freely of their own volition?" (p. 64).
"A history of judges must cut across many themes" (p. xvii)
-such as their relations with political rulers, the sources from
which the law itself has been derived, the authority of other
spokesmen of the law, the training and recruitment of lawyers,
and the nature and rate of social change. Though Dawson does
not (and could not) exhaust these themes, he states their essen-
tials and establishes their relevance and interrelation. The style
and content of judicial opinions and the importance of publishing
reasoned opinions constituitethemes closely linked to the judicial
function and the development of case law - themes examined
both in general and in the particular context of the different sys-
tems considered at various stages of development. Much that
today is taken for granted was achieved only after much contro-
versy. Thus, for example, secrecy of proceedings was both com-
mended to and desired by the judges of several jurisdictions in
France and Germany. Again, with Professor Wechsler's view in
1959 that reasoned explanations are "the very essence of judicial
method"3 may be contrasted that of the Scottish Judge, Lord
Eskgrove, who at the end of the i8th century objected to verba-
tim reporting because "the fellow tak's doon ma very words."
Chapter I of the book traces what to the Anglo-American
reader will be a most familiar sequence, "The Growth and De-
' Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV.

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492 HARVARDLAWREVIEW [Vol. 82

cline of English Case Law" from earliest to modern times. How-

ever, the chapter goes beyond this stated subject by including a
vivid description of the organization and training of the English
legal profession. The small numbers and high prestige of the
centralized and centralizingjudiciary, their intimate relation with
the practicing bar, concentration on procedural moves, and rele-
gation of fact finding to juries were factors influencing both the
use of case law as an organizing and creative force and the form
of reporting, as in the Year Books. "The Year Book lawyers
were practical men and specialists, who evidently felt no great
need for theories of precedent. . . . The rules found expression
in the standard writs, in the procedural forms that were known
to the clerks, and also in past judicial decisions which judges and
pleaders recollected. But particular decisions could be wrong and
if so could be freely disregarded" (pp. 58-59). The emergence
of peculiarly English conceptions of binding precedent and dis-
tinctions between dictum and decision is discussed (pp. 77-80),
and the author concludes that "[e] ven as late as Lord Mansfield,
the notion that the law was to be found in particular cases would
have seemed strange indeed" (p. 78). Yet Mansfield could and
did cling to positions of extreme technicality, particularly when
political issues arose4, and a two-faced judicial attitude toward
the binding force of precedent is not unknown in Britain today.
The author's critical analysis of English attitudes toward report-
ing, professional ethics, and precedent from the igth century up
to the present will be of particular value to those who have not
encountered it at first hand. Presumably, he had only a belated
opportunity to amend his proofs (especially pp. 94-95) to indi-
cate that the House of Lords had at long last on July 26, I966,
recanted on the London Street Tramways I doctrine of infallibil-
ity. What he could not have known at the time was that this
recantation had little to do with the attitude of English lawyers;
it was a byproduct of the endeavors of the Scottish Law Com-
mission to have Scots law declared unaffected by this indefen-
sible doctrine.6 It is believed that success was as marginal as in
Donoghue v. Stevenson,7 the Scottish case which indirectly revo-
lutionized the English law on negligence. Paradoxically, the Eng-
lish Court of Appeal has been prompted to reaffirm that in its
civil jurisdiction it is still bound by its own previous decisions 8
a fate from which the Court of Session in Scotland, due to its
4 C.H.S. FIrooT, LORD MANSFIELDI20 (1936).
' London Street Tramways Co. v. London County Council, [I898] A.C.
370, 380.
6See Kilbrandon, Note, 83 L.Q. REV. I76 (I967).
[I932] Sess. Cas. 3I (H.L., Scot.).
8Regina v. Bow Street Justices ex parte Adedigba, [I968] 2 W.L.R. 1143 (C.A.).

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i968] BOOK REVIEWS 493

civilian antecedents, is immune. Dawson's implied question as

to whether the Court of Appeal remains bound (p. 94 n.5I) has
been answered for the time being.
Professor Dawson proceeds in chapter II to discuss "The
Heritage from Roman Law," which is the other great legal tradi-
tion of the western world. Here the main oracles were jurists
rather than judges, who perfected a case law technique to secure
just resolution of disputes and development of the law. When a
professional judiciary was created, it was too overshadowed by
imperial authority to establish an effective system of case law.
The Reception of Roman law in Italy from the I2th century on-
wards comprised, of course, the edited pronouncements of the
jurists in Justinian's codification (more than half of the Digest
came from the jurists of the last century of the classical period).
Justinian had, however, "conceived the Corpus Juris as a com-
plete code of laws without contradiction or imperfection" (p.
I22). He laid down that "decisions should be rendered in ac-
cordance, not with examples, but with the laws" (non exemplis
sed legibus iudicandum est)?. This pronouncement,misconstrued
in its emphasis and implication, was often seized on from the
time of the Reception to discredit case law - though in reconcil-
ing Roman law with custom, judicial recognition of custom was
in practice accepted as relevant. Dawson provides admirable
and succinct coverage both of the unenviable role of the Italian
Syndicate courts, groups which inquired into decisions of the
peripatetic judges of the thirteenth and fourteenth centuries and
imposed personal liability upon them for wrongful judgments,
and of the rise of the "learnedmen," or academicians,as legal ora-
cles. He concludes, "To protect themselves, judges retreated
behind the shelter that the learned men had erected. The Roman
tradition of a legal elite, detached from public office, was trans-
ferred to a group of academicians, whose authority mounted with
the mass of their writings, leaving the judges wholly submerged.
. . . About the year I500 it would seem that the experience of
Italy had confirmed the subordination of judges to which the
CorpusJuris had testified" (pp. 146-47).
Professor Dawson's focus switches in chapter III from Italy
to Germany, where eventually, despite the considerable contribu-
tion of the judiciary before and after the Reception, primacy was
secured by the learned men who professed the Roman law. One
senses that the author has a particular attachment to the admin-
istration of justice in Germany, beginning with the medieval
Sch6ffen (lay groups of twelve or fourteen who found the law
and proposed judgment), and is especially concerned to uphold
9 CODE 7 45.13.

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 494 HARVARD LAW REVIEW [Vol. 82

the importance and quality of German judges and decisions at

all times -though through the procedure of Aktenversendung
judges surrenderedto university law faculties the effective power
to decide disputes and expand the law. These academicians also
took the lead in systematizing. The fact that the Germanjudges
had made no pretensions to political power preserved them from
hostility, and by i8oo the courts (guided by the learned men)
seemed to be well established in a subordinate political role,
making a useful contribution to the development of German
law. Dawson's account of the various types of courts, procedure,
and reporting is valuable, as is his assessment of juristic litera-
ture, and in this chapter he does not hesitate to challenge certain
historical and political assumptions which have gained too wide
and uncritical acceptance.10
"The French Deviation" forms the subject of chapter IV.
This description is somewhat startling to the reader accustomed
to regard France as the typical civil law country, especially
with regard to the role she assigns her judges. The author im-
plies that, although French law was largely Romanized, it di-
verged widely in the pre-Revolutionera from the civil law system
which Italian scholars had organized and Germany had adopted.
His thesis is that modern French theories limiting judicial power
reflect not Roman law but a reaction against the powers and pre-
tensions of the French judiciary during the ancien regime. Pro-
fessor Dawson discusses in considerable detail the salvaging of
customary law with support from the central government, and
the growth of the central court, the Parlement of Paris, and of
the other parlements, with their very large complements of high-
ly qualified judges. Unlike the situation in England, where the
King's judges were few in number and their relations with the
bar close, in France barriers were erected between bench and
bar, and the royal injunction of secrecy in proceedings excluded
explanations of the motives underlying judicial decrees for many
years. Though the judges sought to achieve consistency in their
own policies by consultations and the keeping of private decision
books, their motives as a rule could only be guessed at by prac-
titioners. After i6oo, however, extensive law reporting did de-
velop, and the judiciary played a considerable role in forming
private law -a formation with which royal government did
not greatly concern itself. However, the parlements also made
extensive use of their powers to promulgate and enforce essen-
tially legislative decrees. Ultimately, after they waxed powerful
0 For example, the notion that the Reichskammergericht, the reorganized
central court established in 1495, was almost solely responsible for the German
reception of Roman law (pp. i9o-9i).

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i968] BOOK REVIEWS 495

and pretentious through this usage, exercised in purported de-

fense of the national interest - which they largely identified with
the interests of the nobility - the parlements were overthrown
at the Revolution. Reaction against them determined attitudes
toward the subsequent French judiciary.
Chapters V and VI "The Modern French Reaction" and
"Germany'sCase-Law Revolution," respectively -are, as the au-
thor stresses, "the main targets of the present enterprise" (p.
374). The forces which around i 8oo had relegated case law in
both France and Germany to a low position among available
sources of law were historically of a very different character. The
effect of historical experience is apparent in the different reactions
of the two national systems to modern changes and stresses in
the theory and method whereby they handle case law. Distrust
of the judiciary in France resulted in various devices designed
to restrict their freedom, though in the main these have been suc-
cessfully evaded. In Germany, where there was no comparable
suspicion of the judges, the form of reasoned opinion delivered by
the courts differed markedly from that adopted in France. The
author attaches much importance to the role of the reasoned
opinion and discusses this topic in very considerable detail. Why,
for example, does the Cour de Cassation pronounce in so laconic
a style and refuse to cite case law (pp. 406, 430)? The relation-
ship between courts and jurists also came to differ markedly be-
tween France and Germany, with important consequences for
development of the law. It would be impossible in a review to
state and comment in detail on the rich variety of topics related
to the central theme which Professor Dawson examines -such,
for example, as the theory and practice of France and Germany
with regard to judge-made law and the social forces which en-
hanced its contemporary importance. In this day and age it is
unnecessary for any comparative lawyer to demolish the facile
misconceptions of past times that code law and case law are mu-
tually inconsistent. On the other hand, the exact juristic status
of judge-made law still attracts scholarly controversy of much
complexity and fervor. The author keeps his evaluations of the
various contenders well in balance, in so far anyway as a review-
er can judge who has himself been at times greatly perplexed in
formulatingconclusions.
Concerning the contemporary creative role of the French
judiciary, the author concludes: "The great contradiction, in a
history filled with contradictions, is that French courts have been
the chief innovators but have felt so little compulsion to help in
organizing their own product." While ostensibly disclaiming law-
making power, the judges assumed it, while adopting "a cryptic

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 496 HARVARD LAW REVIEW [Vol. 82

style of opinion writing whose main purpose was to prove their

dutiful submission but which left them in fact more free. . . . To
the extent that judges abstain from candid disclosure, the load
is cast on others, outsiders [i.e., commentators]; being outsiders,
they must search out clues, speculate, surmise. This is the pos-
ture of French legal science, through the tradition that inhibits
French courts in exploiting the modern resource of the reasoned
opinion" (pp. 430-3 I) .
By contrast, Professor Dawson sees modern German law, in
which he emphasizes the role of organized and reported case
law, almost as the delayed fulfillment of a predetermineddestiny.
The forces of change and circumstance generated by two world
wars left no real option but to seize upon the opportunities for
flexibility afforded by the general clauses of the German code,
the BGB." Additionally, the Basic Law of I949 and the defini-
tion of the respective jurisdictions of the Constitutional Court
and the Bundesgerichtskof, or supreme court for ordinary civil
and criminal litigation, created new possibilities for the applica-
tion of case law techniques. Now, emancipated at last from ex-
cessive control of Roman law and Romanists, or Pandektists,
and from the conceptual structure of the BGB, the development
of Germanlaw is safe in the hands of judges who, though "learned
men" themselves and supported by the established legal scholar-
ship, use and have used advanced case law techniques to develop
the law. Professor Dawson commends the style of modern Ger-
man judicial opinions, even though they are anonymous and
unanimousand garnishedwith traditional doctrinal authority, for
(among other reasons) facts are fully stated and past decisions
carefully analyzed. Chapter V is so rich in discussion of aspects
of theory and method, both scholarly and judicial, that it is prob-
ably the most valuable in the book, and, one suspects, the author's
own favorite.
In a postscript Professor Dawson asserts that of the jurisdic-
tions examined in his book, the two which most closely resemble
each other in administration of case law are the United States
and West Germany. He regrets that in America effective work-
ing partnership between courts and legal scholars is not so well
developed as in Germany. In England the position is worse. The
author is absolutely convinced of the value of case law - which
must exist in some form in every legal system -and thinks that
Germany and the United States have found the right techniques.
"The problems . . .. involve much more than case-law tech-
niques, though techniques are essential. Behind them lie more
basic questions as to the nature of the contribution that judges
" BiirgerlichesGesetzbuch.

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I968] BOOK REVIEWS 497

are enabled to make by virtue of their function as well as limits

of the function itself, which they too should recognize. Required
to commit themselves by the giving of reasons, the wider the
range of the commitment made, the more tentative and revocable
it should be" (pp. 504-05).
Surfeited by so substantial and stimulating an academic feast,
and denied as much time as he would have wished to digest it, the
reviewer would reserve judgment on one point alone. He con-
siders that his friend Professor Dawson in pursuing his main
theme has perhaps failed to emphasize sufficiently the fundamen-
tal concern with the law in the sense of a written provision
which constitutes a point of departure and a coherent whole in
the codified civilian systems. In their handling of case law, Ger-
man and French judges may differ greatly, as the author has
shown, and there are good reasons for discerningaffinitiesbetween
Germanand American techniques. Yet David 12 and others seem
right in including German and French law in the same legal fam-
ily, sharers of a common civilian tradition. It may be said that
more unites than divides their approach to legal questions. Pro-
fessor Dawson's own vast erudition, coupled with that of his
distinguished consultants mentioned in the preface, causes the
reviewer to hesitate in his view that the relevance of code has
on occasion been sacrificed to the importance of the case. But
then, the reviewer himself, perhaps because of training, is not
committed to a basically problem-bound approach to law. It
may be that others will similarly find Professor Dawson's book
of immense value and importance without sharing an identical
perspective with the author. Warmest congratulationsare due to
him. No comparative lawyer should be without this book, and
no wise comparative lawyer will lend his copy to a friend.
T. B. SMITH*

CONVICTION: THE DETERMINATION OF GUILT OR INNOCENCE

WITHOUT TRIAL. By Donald J. Newman.1 Boston: Little, Brown
& Co. I966. Pp. XXVii,259. $8.50.
The full spectrum of public officialdom,from local mayors to
our President, impresses upon us that crime is the Number One
Domestic Issue. All the calls for crime crusades, all the hunting
for causes, controls, and cures that absorb the time of persons as
12
See R. DAVID, LES GRANDES SYSTEMES DE DROIT CONTEMPORAINS 29-101 (2d
ed. I966).
* Professor of Scots Law, University of Edinburgh.

' Professor of Criminal Justice, State University of New York, Albany.

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