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- J 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 B 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, J 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 * h 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 i n enacting the principles of Natural Justice; there no such protection in Ireland; But the principle l hat the participation of the legal profession is desir- . e to me et the difficulties the citizen experiences l n the securing of his right before tribunals is u 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 Jl aw wide apart. The weakness of the English Com- J? 0n 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 126