December 1959 BOOK REVIEWS 381
That the common law has embodied within its principles certain standards of
value (e.g. public policy and reasonableness) is perfectly true; but these standards
have only been successful, as Professor G. W. Paton points out, 6 because their content
is always changing. They change because some people attack, criticise and reject
them; because the “moral climate” of a community is not some rigid steel structure,
but a fluid weather map of pressures and counter-pressures, some widespread, some
more confined, held together not by a common direction shared by all, but by their
very interaction and conflict. It is wrong to treat law, as Sir Patrick does, as though
it were a passive reflection of this moral climate. Often law reflects moral principles
that were widespread 100 years ago but are not to-day; sometimes, it reflects moral
principles that will become widespread, through its influence, to-morrow. The
tremendous impact that Bentham had on English public life and its moral climate
probably stemmed more from his specifically legal reforms than from his general
moral writings; he strove not to reflect, but to educate “the man in the jury box.”
One of the things Bentham helped to teach him was that law need not rest on
religious authority; English society has not collapsed as the result of that view.
Sir Patrick does nothing to show that it will; or that the separation of religion from
law will weaken anything — except religion.
7
E UGENE KAMENKA.
AN INTRODUCTION TO INTERNATIONAL LAW. By J. G. Starke. [1958,
London: Butterworth & Co. (Publishers) Ltd. xxi + 467 + 27 pp.
index.]
The writing of any introductory text-book poses peculiar problems. The author
must convey to the student meeting the subject for the first time some idea of its
scope; he must offer him a useful classification; he should, ideally, give him a
grounding in some of its more fundamental aspects, a basis on which to build to an
advanced level; and he should be brief.
Such an undertaking in the field of international law involves additional
difficulties. As compared with most other subjects usually taught in common-law
schools, international law is very broadly-based; the ratio of secondary to primary
sources is high, yet the official recognition of secondary sources means that they
assume greater importance; international judicial decisions are not as easily sieved,
as are municipal decisions, through the processes of over-ruling, disapproval and
legislative reform; the approach tends, of necessity, to be more eclectic; state
practice, with its attendant uncertainty, looms larger than custom in municipal law;
the whole subject is generally regarded as being dynamic (if one likes it) or vague
(if one doesn’t).
The result of this is that whereas in other subjects a single text can serve both
introductory and advanced ends, such a solution is not as easy for international law.
I can think off-hand of no single text-book (as opposed to case- or course-book)
purporting to take student from scratch to graduate level which has appeared in
English since the last world war. The editing of the older treatises appears less and
less as an elixir of life and more and more as formaldehyde. Oppenheim undoubtedly
remains of value as a springboard for advanced work. Its text, however, can hardly
avoid generalisation and the annotation (which, according to a reviewer of the last
edition, comprises 60% of the book) must intimidate the newcomer more often than
it helps him.
6. “Law, Logic and Ethics,” 14 Australasian Journal of Psychology and Philosophy, 270, at p. 279.
7. B.A. (Sydney); Lecturer in Philosophy in the University of Malaya in Singapore.
382 UNIVERSITY OF MALAYA LAW REVIEW Vol. I No. 2
The tendency nowadays seems to be two-fold. Insofar as any single tome
nowadays purports to deal with international law it does so either at an introductory
level or as the basis of a particular course, and hence as an instrument of instruction
to be used along with other materials. I am not suggesting that there ever was a
time when the inward digestion of a single book was all that could be asked of the
student. But I think there was a time when a single book could provide the student
with an adequate framework and a sufficient but not excessive number of firm
statements about his subject for him to criticise in the light of his own experience
in an undergraduate course. So far as international law is concerned, that time seems
to be behind us and we have fully embarked upon the era of multi-volume treatises
and specialist works, even at the undergraduate level. And we have, at the same
time and for the same reasons, seen the start of multiple international law courses.
The student, however, must still take that first step. In Commonwealth law
schools, three books seem to vie for hegemony in the field of introduction to
international law. Of these, Brierley’s Law of Nations is the least ambitious and,
for the purposes of the accompaniment of a first course as opposed to a precursor
to it, the least satisfactory. Of the other two, Schwarzenberger’s Manual is
understood to be due for appearance shortly in a new edition, and Starke’s Introduction
to International Law is now with us after its fourth edition in twelve years, a fact
which speaks for itself.
Since the preparation of the last edition which appeared in 1954, many
developments have taken place. The Minquiers and Ecrehos Case (I.C.J. Reports
(1953) 47); an expanding interest in Antarctic territory; Johnson’s sponsorship of
“consolidation” as a separate source of title, in B.Y.I.L. (1950) 332; the sudden present
significance of outer space; the International Law Commission’s Report and the
Geneva Conference on the Law of the Sea; and the Suez affair have resulted in
considerable re-writing of the chapter on State Territory. The above-mentioned
developments in the law of the sea have also necessitated considerable alteration of
the chapter on Jurisdiction as have recent development in the fields of sovereign
immunity (Juan Ysmael & Co. Inc. v. Government of Indonesia [1955] A.C. 72;
Rahimtoola v. Nizam of Hyderabad [1957] 3 All E.R. 441; New York and Cuba Mail
S.S. Co. v. Republic of Korea (1955) 132 F. Supp. 84; Bacchus S. R. L. v. Servicio
Nacional del Trigo [1957] 1 Q.B. 438; National City Bank v. Republic of China (1955)
348 U.S. 356); the Report of the International Law Commission and recent municipal
legislation on diplomatic immunity; and recent treaty practice in the field of consular
immunity.
Less drastically but equally thoroughly the rest of the book has been brought
up to date. Reference is made to every international decision of significance since
1953 and the singular contribution of the International Court to an international
jurisprudence in the form of another series of decisions concerned mainly with its
own jurisdiction receives no less comment than it deserves (p. 328). The challenge
of the Afro-Asian nations to the traditional Western and Christian basis of
international law is noted (p. 12); nuclear armament development gets its mention
(p. 92); the neutralisation of Austria (pp. 100-102) and the tail-end of the Abadan
litigation (p. 103) are both referred to. Recent tendencies in the law and practice
of recognition are added (p. 125) as are the effect on the regime of the Panama Canal
by the new U.S. - Panama Treaty (pp. 172-3) and the establishment of “air defence
identification zones” (p. 147). In the field of State Responsibility, the Report of the
International Law Commission is considered (p. 217) and the Ambatielos Case
discussed. The effects of recent decisions in the fields of nationality (p. 254) and
extradition (p. 263) and the inauguration of the European Commission on Human
Rights (p. 269) are all incorporated as are those of the Geneva Anti-Slavery
December 1959 BOOK REVIEWS 383
Convention (p. 271) and the cessation of hostilities in Indo-China (pp. 381-2). Package
deals in the admission of new members to the United Nations are acknowledged as a
factual reality whether they are a legal nullity or not (p. 441).
This is but a random selection of a large number of changes which amply
justify a new edition rather than a reprint. The author has not rested content
simply with the incorporation of recent developments, but has clarified some previously
vague propositions, altered others which were misleading, referred to pre 1952
material which previously he preferred not to mention and omitted other matters
which no longer warrant inclusion in an introduction. The overall impression is one
of a conscientious effort to keep a very necessary book at the peak of usefulness,
and it is a cause for congratulation that no increase in the size of the book has
resulted.
Having done all this, it is perhaps a bit specious to complain that more was not
done. Nevertheless, one important change that might have been has not been made.
There could have been little quarrel with the classification which Starke adopted in
its first edition. Times have changed. Whilst developments in most branches of the
law have been sporadic and piece-meal, in the fields of international organisation and
international economic law they have been rapid and continuous. From relative
insignificance, these two have now taken places among the most important aspects
of international law. To “International Institutions” Starke now devotes 56 pages,
fewer than in the previous edition. International economic law receives no separate
treatment at all, but remains as an adjunct to such topics as state responsibility.
If the book is to achieve full flower and to retain its usefulness, subsequent editions
must recognise these tendencies.
HARRY CALVERT. 1
THE SANCTITY OF CONTRACTS IN ENGLISH LAW. By Sir David Hughes
Parry. [1959, London : Stevens & Sons, Ltd. 12s. 6d. vii + 77 pp.]
This little book, which can be read with appreciative enjoyment in less than
two hours, contains the text of the Tenth Series of the Hamlyn lectures delivered by
Sir David Hughes Parry at the University of Exeter in February and March this
year. Sir David reviews the different underlying principles which have from time
to time guided the English Courts in actions to enforce a promise or to punish (by
the award of damages) its breach, and shows how these several principles have
developed, many only to be discarded in the varying climate of moral, social or
economic thought. In concluding he poses the question whether the time has not
come when the whole structure of our law of contract might not be discarded as out-
dated and ill-adapted to our present needs. The increasing number of “statutory
contracts” in, for instance, rent control, carriage of goods (by both sea and air), and
of statutory restrictions in, for instance, hire-purchase and moneylending transactions,
are perhaps evidence of the inadequacy of the common law to present conditions. Sir
David’s lectures, however, will I think fulfil a wider purpose in causing the reader to
reflect upon the implications not only of the very existence of a contract law but also
of its present form which are frequently forgotten: in particular that freedom to
contract at all implies a certain status, and a social order recognising the dignity
and right of the individual; that practising lawyers pay mere lip-service to the notion
1. LL.M. (Leeds); Lecturer in Law in the University of Malaya in Singapore.
December 1959 BOOK REVIEWS 383
Convention (p. 271) and the cessation of hostilities in Indo-China (pp. 381-2). Package
deals in the admission of new members to the United Nations are acknowledged as a
factual reality whether they are a legal nullity or not (p. 441).
This is but a random selection of a large number of changes which amply
justify a new edition rather than a reprint. The author has not rested content
simply with the incorporation of recent developments, but has clarified some previously
vague propositions, altered others which were misleading, referred to pre 1952
material which previously he preferred not to mention and omitted other matters
which no longer warrant inclusion in an introduction. The overall impression is one
of a conscientious effort to keep a very necessary book at the peak of usefulness,
and it is a cause for congratulation that no increase in the size of the book has
resulted.
Having done all this, it is perhaps a bit specious to complain that more was not
done. Nevertheless, one important change that might have been has not been made.
There could have been little quarrel with the classification which Starke adopted in
its first edition. Times have changed. Whilst developments in most branches of the
law have been sporadic and piece-meal, in the fields of international organisation and
international economic law they have been rapid and continuous. From relative
insignificance, these two have now taken places among the most important aspects
of international law. To “International Institutions” Starke now devotes 56 pages,
fewer than in the previous edition. International economic law receives no separate
treatment at all, but remains as an adjunct to such topics as state responsibility.
If the book is to achieve full flower and to retain its usefulness, subsequent editions
must recognise these tendencies.
HARRY CALVERT. 1
THE SANCTITY OF CONTRACTS IN ENGLISH LAW. By Sir David Hughes
Parry. [1959, London : Stevens & Sons, Ltd. 12s. 6d. vii + 77 pp.]
This little book, which can be read with appreciative enjoyment in less than
two hours, contains the text of the Tenth Series of the Hamlyn lectures delivered by
Sir David Hughes Parry at the University of Exeter in February and March this
year. Sir David reviews the different underlying principles which have from time
to time guided the English Courts in actions to enforce a promise or to punish (by
the award of damages) its breach, and shows how these several principles have
developed, many only to be discarded in the varying climate of moral, social or
economic thought. In concluding he poses the question whether the time has not
come when the whole structure of our law of contract might not be discarded as out-
dated and ill-adapted to our present needs. The increasing number of “statutory
contracts” in, for instance, rent control, carriage of goods (by both sea and air), and
of statutory restrictions in, for instance, hire-purchase and moneylending transactions,
are perhaps evidence of the inadequacy of the common law to present conditions. Sir
David’s lectures, however, will I think fulfil a wider purpose in causing the reader to
reflect upon the implications not only of the very existence of a contract law but also
of its present form which are frequently forgotten: in particular that freedom to
contract at all implies a certain status, and a social order recognising the dignity
and right of the individual; that practising lawyers pay mere lip-service to the notion
1. LL.M. (Leeds); Lecturer in Law in the University of Malaya in Singapore.
