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GAZETTE
JANUARY/FEBRUARY 1985
Lord Denning: the Judge and the Law edited by J.L. Jowell
and J.P.W.B. McAuslan. Published by Sweet & Maxwell,
486pp £25.00 Sterling — Hardback.
Lord Denning started his professional career as a shy
and nervous barrister. At Oxford University he joined the
Debating Society but never spoke there. In "The
Discipline of Law", Lord Denning tells of the nervous-
ness he experienced as a Junior Counsel and later as a
King's Counsel before a case would start. He admits that
he was anxious to win and so tense that his voice became
too high-pitched. These confessions have encouraged
many a fledgling Solicitor and Barrister about to address
a Court or Tribunal.
Despite his nervousness, Lord Denning did not turn
into a timorous soul. Lord Denning was and is a bold
spirit. He became a harbinger of, and a catalyst for,
reform. He claimed in "The Family Story" that the jargon
of the philosophers of the law had always been beyond
him. Yet he did have a legal philosophy. In his extra
judicial writings, Lord Denning succinctly described his
judicial philosophy:
"My root belief is that the proper role of the judge is
to do justice between the parties before him. If there
is any rule of law which impairs the doing of justice,
then it is the province of the judge to do all that he
legitimately can to avoid the rule — or even change
it — so as to do justice in the instant case before
him".
Is this the definition of the great Judge? Louis Jaffe's
definition in "English and American Judges and Law
makers" (Clarendon Oxford 1969) comes to mind:
"The great judge was great because when the
occasion cried out for a new law he dared to make it.
He was great because he was aware that the law is a
living organism, its vitality dependent upon
renewal".
Lord Reid has argued in "The Judge as Law Maker" 12
J.S.P.T.L. (1972) 22 that there was a time when it was
thought almost indecent to suggest that judges made law.
They only declared it. Lord Reid commented: "We do not
believe in fairy tales any more".
The need for some element of creativity in a Judge was
echoed by Mr. Justice Brian Walsh in his Foreword to
O'Reilly and Redmond's "Cases and Materials on the
Irish Constitution":
"In the field of constitutional law and indeed
sometimes in other areas of the law, there are
demands for a creative judiciary to operate upon
subjects which governments shirk".
In "Lord Denning, the Judge and the Law", leading
academics critically assess Lord Denning's contribution
to an influence upon the law. The essayists focus attention
on the creativity of Lord Denning and his passion for
doing justice between the parties. Essays cover such
subjects as — The Man and his Times; Contract and Tort;
Equity and Trusts, Family Matters; Land, Planning and
Housing; Administrative Law; Human Rights and
Labour Law. Words are not minced. D.J. Hayton,
Fellow, Jesus College, Cambridge, in his essay "Equity
and Trusts" argues that Lord Denning in concentrating
on doing justice between the parties before him has
"considerably diminished the coherence and consistency
of Chancery law which enables justice to be done
according to the law, viz. the justice that flows from the
application of sure and settled principles to proved or
admitted facts". Professor M.D. A. Freeman, Professor of
Law, at the University of London, in his essay "Family
Matters" argues that Lord Denning "has a knack, close at
times to deceit, of paying lip service to precedent while not
really complying with it". Professor J.P.W.B. McAuslan
in his essay "Land, Planning and Housing" voices a
standard orthodox legal criticism of Lord Denning that
"he was not consistent; his colleagues, the legal profession
and their clients did not know where his fancy was going
to take him next". Claire Palley, Principal, St. Anne's
College, Oxford, in her admirably written essay "Lord
Denning and Human Rights — Reassertion of the Right
to Justice" argues that Lord Denning had "jaundiced
views" about certain categories of persons whom he
believed either behaved unlawfully or badly or were prone
to do so. Equally in the book there is much praise of Lord
Denning. Claire Palley in her essay concludes her
assessment of Lord Denning by using an equine
metaphor:
" No rider he of any unruly horse or policy; he was a
great steed taking the bit between his teeth and
thundering down the tract to law reform and his just
result while the other nags, observing the rules,
never got out of the starting gate".
Professor Heuston in his preceptively balanced essay
"Lord Denning, The Man and his Times" concludes that
in 900 years of the common law, Lord Denning is a
phenomenon.
Lord Devlin PC has written the Foreword to the book
and Lord Hailsham of St. Marylebone, Lord Chancellor,
has writen the Epilogue. The editors of the book set
themselves the task of making an interim assessment on
Lord Denning. They succeeded in their task. A fuller
assessment of Lord Denning will have to await the
passage of time. This book will be of interest to those
interested in the law and the role of a judge in a common
law jurisdiction.
Eamonn G. Hall
Visit to Aras an Uachtaráin
The President, Mr. Anthony E. Collins, was received by
Uachtarán na hEireann on Friday, 18 January, 1985. The
President was accompanied by Mr. Donal G. Binchy,
Junior Vice President, and Mr. James J. Ivers, Director
General. Mr. Laurence Cullen, Senior Vice President was
unable to travel to Dublin for the occasion, due to
weather conditions.
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