Juristic writings & law courts
The old doctrine that no jurist who had never been a Judge can be quoted in a Court of Law as an authority has been exploded. Lord Eldon observed in 1814 that a writer who had held no judicial situa. tion could be cited as an authority in Court (Johnes v. Johnes, (1814) 3 Dow P. C. 1).
I remember that in 1919 to 1922 when I was practising as a Vakil in the High Court of Calcutta on the Appellate Side, Counsel used to cite the great work of Sri Rashbehary Ghose on Mortgage. It was then the convention that only the text books of dead authors should be cited. But the work of Dr. Ghose’s standing was an exception. It would be flattery of a Judge to say that he knew as much law as Dr. Ghose.
Pollock’s Law of Torts received judicial tribute more than once. Lord Wright said that his work was ‘‘unfortunately not a work of authority.” I am quoting the relevant portion of the judgment of Lord Wright, then Master of Rolls, in Nicholls v. Ely Best Sugar Factory Ltd.
‘‘Now that being the state of things, you have here a form of action in which damage is not the gist of action. The matter is very clearly stated in a work, unfortunately not a work of authority, but to which we are all as lawyers indebted, Sir Frederick Pollock’s Law of Torts; I just want to read one very short passage on p. 391 of the 13th ed.” (1938 (1) Ch. at p. 349).
Sir George Paton in his book on Jurisprudence has observed—
‘‘In the last seventy years many books have been written bv Barristers who afterwards achieved fame on the Bench, and the Universities have aroused a greater interest in the literature of English law.” (3rd Edition, 1981 p. 236).
The memorable works of Prof. Dicey and of Prof. Cheshire on Private International Law have been often cited. The works of Pollock and Salmond on the Law of Torts were cited even when the authors were living. The authors of important treatises on Real property have been cited in a number of cases. In 1899 Mr. Justice Byrne cited Challis on “Real Property” an authority and Lewis on Perpetuity and Gray on “Law of perpetunity” 1899-2 Ch. at pages 563.4). In 1939 Lord Greene, Master of Rolls, cited the treatises on the ‘Law of Evidence’ by Taylor, Best, Wigmore, Cockle and others (1939-1 Ch. 620).
The High Court of Australia has shown remarkable aptitude in citing extracts from important articles published in well-known periodicals. In 1937 articles from the Law Quirtely Review contributed by Pollock and Winfield and other authors were cited (56 C L R 605.) Articles from Cambridge Law Journal and other periodicals have been cited in a number of Australian cases. (56 C R L 246, 59 C L R 279 and 62 C L R 1.) In England there is a refreshing change from the old attitude and an important article by Prof. Goodhart was cited in 1942-2 K B 293 at pp. 297- 8). Lord Greene quoted the learned Professor’s article in 54 Law Quartely Review, p. 553 dealing with the liability of Hospitals for the negligence of their nurses.
Our experience at the Third Commonwealth Law Conference which was recently held in Sydney in Australia is that there is unmistakable sign of increasing co-operation between the Bench, the Bar, and the Law Faculties of the Universities. Professors and Lecturers in Law made important contributions in the debates on divers subjects. Prof. Paton has rightly observed that—
“Even today that influence is not waning, for the lists of courts are congested, authorities are many, and there is natural temptation to turn to any textbook which states the law clearly and definitely.”
In Haynes v. Harwood, 1935-1 KB 148, Greer L. J., referred to an article of Prof. Goodhart and to another in Cambridge Law Journal. The learned Judge observed that the effect of the American cases was accurately stated by Prof. Goodhart in his article and he pointed out that the passage not only represented the law of the United States but also accurately depicted the law of England and the judgment was practically based on that citation.
Our Supreme Court has been liberal in its attitude towards citation of text-books. In Gopalan’s case in the first year of its existence the learned Judges themselves quoted citations from Dicey, Keith, Willis and SWISHER. Fazl Ali J., quoted American authors to support his conclusion which may appear more reasonable that the word “law” does not mean merely State-made law or law enacted by the State, but it does include certain fundamental principles of justice which are inherent in every civilised system of law and which are at the root of it. AIR 1950 S C 27 at p. 58.
In Brij Bhushan v. Stale of Delhi, Counsel cited Stephen’s Criminal Law and the relevant passage was quoted in the classic judgment of Mr. Justice Patanjali Sastri, AIR 1950 S C 129 at 132. That judgment is the leading authority on the Freedom of the Press and struck dovvn pre.censorship as illegal and unconstitutional. In 1963, Kapur J., made a quotation from an article in 1933 Law Quarterly Review p. 424 in his judgment in Ujiambai v. State of Uttar Pradesh, (1963-1 SCR 778 at p. 878.).
Author Name: N C Chatterjee
