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on 3 May 2011
THE DISCIPLINE OF THE LAW was written by Lord Alfred Thomson Denning (1899 - 1999) the longest serving Master of Rolls in British legal history. The law which fixed retiring age of judges at 75 took effect after he had become Master of Roll and no other law required him to retire at that age and he continued until he was 88 in 1987.
In a 7-part treaty called `holiday task' during a long vacation in 1979 towards his 80th birthday, he narrated the story of his crusade for changes in the law through judicial activism and legislative foresight. As for the mischief of this crusade the reader is not kept waiting at all.
In his prologue he stated clearly that the principles of law developed through the social necessities of the 19th century was unsuited for the 20th century justice system. Some of the new thinking had been adopted by the law reform commissions and decided cases, while others rejected. He embellished his story with quotations from his judgments, some supporting his views while others not.
Notable among them is: "what is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both" Denning LJ in Packer v. Packer (1954) p.15@22
This quotation is timeless and instructional for lawyers and laymen considering the fact that many years later science of discovery sent crafts and human to the moon. In 21st century writs of summons, forms and proceedings are validly being filed in court via the internet.
In Part I he began a powerful but lucid tutorials on the art of document construction, emphasizing the use of language and words as well as where to help when necessary.
The author used Part II to highlight the growing use of executive or ministerial powers negatively. These were rooted in the clauses in the various enabling Acts: "if it appears to the minister or satisfied" others use ouster clauses to render impossible any attempt by aggrieved parties from seeking judicial redress. While the rest come from error of law by the administrative tribunals or ultra vires the panel. Freddie Laker `skytrain' and Ashbridge cases were used as illustrations of uncontrolled executive discretionary powers.
Part III displayed many instances where executive powers were used to stifle freedom of expression or privacy; and the effort of the judicial system to redress them through reviews, declaration and injunctions that preserved private rights.
Abuse of `group' powers featured in Part IV where the case of Showman's Guild was used ti illustrate that the club had no jurisdiction to interpret its contracts with members wrongly, as well as against other persons.
The most elaborate case High Trees, was a wartime case which led to the introduction of the doctrine of equitable estoppels into common law was documented in details in Part V. In Part VI he wetn into legal memory lane on the development of tort law, negligence culminating into Lord Atkins decision in Donoghue V. Stevenson 1932 and the impact of Hedley Byrne 1964. The new dimension of these decisions where damaged appeared unrecoverable, economic loss did not feature prominently.
The author dealt with doctrine of precedent in Part VII. Stare decis is a vital doctrin of English law and jurisprudence. His crusade focused on where past decisions were wrongly reached should the court on discovery continue to follow it until the decision is over-turned by the House of Lords? But he argued that many cases never got the chance to the House of Lords.
The case of Young V. Bristol Aeroplane provided illustration of how the court can `distinguish' the present from the past cases. He was humble enough to extend his are of research outside England and Wales , as he found support for his views in the decisions of Court of Appeal in New South Wales and Australia.
For anyone who is in doubt about his belief in the doctrine of precedent, he used his conclusing to distance himself and assured everyone that he was not against precedent; he explained that his plea is simply to keep the path to justice clear of obstructions which would impede it.
The Discipline of the Law is a compelling reading for attorneys, jurists, students and leaders who want to understand the development of British legal history and how executive recklessness, human element/sentiment were tamed by a crusading judge.
The author's radical approach could also be discerned from his 1949 Hamlyn Lecture titled FREEDOM UNDER THE LAW where he argued like American philosopher Sidney Hook who said the electorate is "the ultimate custodian of its own freedom" that enlightened citizenry controls its police not vice-versa. The author through radical interpretation has expanded the scope of English common law.
The clarity of writing exhibited in this book is unique and similar to those of his numerous judgments; and can only attributed to Lord Denning's specificities. In his epilogu titled: "Nothing must be left undone the referred to The Times of 5 January 1977 which quoted Lord Scarman : "The past 25 years will not be forgotten in our legal history. They are the age of legal aid, law reform and Lord Denning."
Lord Denning : The Discipline of Law
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