Reviews of Commercial Law (ed McNeil); On Liberty (Chakrabarti)
Scots Commercial Law
(ed) Iain G MacNeil
Was I alone, 40-odd years ago, in being unable to see the wood for the trees? As a diligent law student, I tried to absorb the wisdom of Messrs Gloag and Henderson. I read the cases to which they referred. I was completely baffled by the man who had no scrip with which to fulfil his contractual obligation; I puzzled over a congeries of defects. I did get to grips with the Carbolic Smokeball case, but the accepted gloss put on it, to the effect that it was a mere puff, as opposed to a legally binding offer, seemed to be a most odd use of language. In short, I was looking at an awful lot of trees, but the location of the forest was something of a mystery.
I wish I had had a book like this. Its stated aim is “primarily to provide students with a text that gives a prominent place to general principles alongside a concise treatment of the relevant special rules in the field”. Based on that, this work is an (almost) unqualified success.
The notion of a legal persona is one of the earliest things which every law student learns and, sensibly enough, is the first chapter. But the chapter deals not only with the what¸ but also with the why. An introduction to some much needed commercial nous from the outset is commendable. Chapter 2 deals with the general principles of contract law. Whole books on the subject are longer than this entire collection, but in 51 short pages there is an excellent outline of the complex subject. You will not find a better explanation of the basis of a contract than in the first paragraph of that chapter.
You will note that Professor MacNeil was the editor, not the author. A total of nine people were involved. It was inevitable, therefore that there would be stylistic variations. That these are not generally noticeable is a tribute to Professor MacNeil’s skill; however, I wonder if I will be the only person to be rather irritated by chapter 8 on the subject of Money and Debt. Now, I have no issue with a quirky use of language. The pedant in me loves to pick up small and useless pieces of information. So the fact that in English law the words joint and several have the complete opposite meanings to those which we use has a certain interest. I applaud the resurrection of the seldom used patrimony. Paragraph headings such as "The Law of Triangles", dealing with the ius quaesitum tertio, and "In God We Trust", dealing with legal tender, are OK. But when, in a student textbook, a couple of pages are given over to that most obscure of topics, catholic and secondary creditors, one is left with the distinct feeling that this is an author trying to be too clever by far.
And that is probably the only quibble which I have with an otherwise excellent piece of work. An introduction to commercial law set out in a lucid and commercially minded way. Who could ask for more?
Tom Johnston, Ormidale Licensing Services
PUBLISHER: ALLEN LANE
PRICE: £17.99; E-BOOK £6.99
The author has chosen the same title for her book at the distinguished philosopher John Stuart Mill in 1858. In his book Mill sought to set out his thoughts on how authority and liberty could be addressed. Ms Chakrabarti seeks to consider the current balance between state and the individual in her short book. It makes for interesting reading and, to use a colloquialism, it is a bit "shouty" – in itself not a bad thing, where human rights (and obligations that follow) are said to be eroding.
The author's basic premise is that the post-9/11 world has seen authority seek to erode, and in some cases erode, the rights and freedoms of the individual. The book ranges over a number of areas from extradition, the concept of identity, the inadequacy of government to government memoranda of understanding, and the controversial "kettling" policy of the Metropolitan Police. The author opens with a brief summary of her professional life, and her transition from a young Government lawyer working in Mordor (the Home Office) on legislation creating the Special Immigration Appeals Commission, following the defeat of the UK Government in the groundbreaking Chahal case, to her post as in-house counsel at Liberty – a move described as "the culture shock of my move from a Goliath department of state to a David-size NGO".
On her second day in her new post was 9/11. Of the Human Rights Convention, she writes: "this framework of fundamental rights was never merely a clever lawyer's toolkit but a set of values to help us define the limits of both freedom and security, and, crucially, of tolerance and integration". With the 70th anniversary of the liberation of Auschwitz, this is a sentiment we must bear in mind. Chakrabarti is now the director of Liberty, as it continues to campaign vigorously against such current issues as the so-called "snoopers' charter" and counter-terrorism measures. David has a strong voice.
David J Dickson, solicitor advocate