The Gazette 1975

Book Reviews

Scarman (Leslie) — English Law—The New Dimen-

sion (Hamlyn Lecture, 26th Series). London: Stevens,

!974. 19cms., xi, 88p.; £1.50.

Lord Justice Scarman has given us some interest-

ng views in this new series of Hamlyn Lectures. The

learned author has considered in detail the question

whether English Law was capable of further growth

within the narrow confines of the Common Law

system. This is essentially a system of lawyer's law,

conceived, developed and adjusted by the judges and

y the legal profession; its home-made principles,

concepts and classifications, dominate the thinking of

Jhe profession in England, and they are preserved

hy a strict system of precedent. It is an independent

form of customary law, and its professionalism

depends on oral argument, but it is resistant to

change. The first limited challenge is the right of an

individual to petition the Commission of the European

Court of Human Rights; the current case about

Northern Ireland involving "disturbing practices of

interrogation" will undoubtedly lead to an inter-

national finding that English law fails to provide a

remedy. The author is more than justified in stating,

n relation to Community Law, that the power of

the British Parliament to make whatever law it likes,

and the power of the Judges to declare what laws

a r e

in those areas bound by statutory interpretation,

a r

e undoubtedly contrary to British international

obligations; he rightly criticizes the

"command

theory" which has dominated statute law. The social

challenge consists in the theory that we are all

entitled to the active protection of the State against

fne ills of poverty, disease and old age; in this respect

"te law has had to be flexible to meet different social

conditions. The main principle is that the right to

the national insurance benefits depends upon a

Person's contribution record, but it is absurd that

Jhe justice of the decision cannot be reviewed by the

Court subject to its being sufficiently flexible to meet

e challenge. T h e manner is which family law cases

have been administered is an example of the flexi-

bility of the Common Law.

There is of course in England a Council of

tribunals, whose function is to supervise tribunals

enacting the principles of Natural Justice; there

no such protection in Ireland; But the principle

hat the participation of the legal profession is desir-

to me et the difficulties the citizen experiences

l n

the securing of his right before tribunals is

ndeniable. The Court should also avail frequently

its discretionary remedy to make binding declara-

tions of right. The outworn theory that the role of

oe Courts is to be confined to the interpretation of

statutes is rightfully rejected as splitting the Common

wide apart. The weakness of the English Com-

Law is that it is a legal system at the mercy of

ne Legislature and ultimately of the Executive; it is

Therefore essential to promote in England a Bill of

Sots which cannot be amended or repealed, as

there is no written Constitution; we are fortunately

much better protected in our Fundamental Rights

clauses. The English Welfare State is challenging the

relevance of the Common Law because fault, property

and even marriage are insecure bases for the

development of a modern law suited to present

needs; the administrative tribunals are bound to

assume more and more importance. It seems that

lawyers will be left to handle the criminal law and

the private disputes between citizens. The universality

of the law will be discarded; for our rights and

liberties would no longer be subject to the rule of

Law administered by the ordinary Courts, but to

administrative and political controls beyond the

reach of the law. This is the frightful prospect of the

future, and, in the event of a new Irish Constitution

being propounded, we must see that our Fundamental

Rights are not diminished by one iota.

Meaghen (P. J.)—Local Government in Ireland; fifth

edition revised by D. Roche. Dublin: Institute of

Public Administration, 1975. 32p., 22cm.; £0.50.

Mr. Meaghen, late County Manager of Limerick,

who died in 1971, edited the first three editions of

this booklet, and Mr. Desmond Roche has brought

the material on Irish Local Government up to date in

this latest edition. Mr. Meaghen had already explained

the subject with such clarity that Mr. Roche had

only to fill in the

lacunae

to bring the material up to

date. This he has most successfully accomplished.

Russell-Clarke (J.)—Copyright in Industrial Designs;

Fifth Edition by Michael Fysh. London: Sweet &

Maxwell, 1974; xxiii, 314p., 25cm.; £10.50.

This is the first edition of this well known work

not published by the original author, who had pub-

lished successive editions in 1930, 1951, 1960 and

1968. The broad substance and clarity of the chapters

of the work has not been altered, save that the more

up to date English case law and legislation has been

included, and particularly the Design Copyright Act

1968. The 1968 Act now accords "artistic copyright"

to registrable industrial designs for a limited time,

whether registered or not. The detailed rules as to

the nature of a design are fully set out in Chapter 2,

while subsequent chapters deal with novelty and

originality, and with publication. Then follow such

matters as correction and rectification of the register,

infringement of copyright in registered design, and

the detailed steps to be taken in an action for in-

fringement of registered design. If the owner of a

design which is invalid, and which does not cover the

articles complained of, can cause his rival in trade

much damage by the use of groundless threats of

legal proceedings, anyone who is aggrieved by such

unwarranted threats has the right to institute pro-

ceedings to restrain their continuance. There are

complicated rules relating to the overlap between the

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