Dalhousie Law Journal


W. L. Morison


Legal ideals, common sense, socio-legal evolution, right to consciousness, articulation of reason, ethical rationalism


The publication of Canada's most newly established legal journal by Canada's oldest established common law school naturally prompts reflections concerning the elements of continuity and change in legal writing, and legal thinking generally. Legal writing has so radically changed during the existence of Canada's oldest common law school, or for that matter during the existence of Australia's oldest law school to which the writer belongs, that articles written even during the earlier part of this century excite feelings of nostalgia in some people. In welcoming an article published in the Sydney Law Review in the nineteen fifties, Dean Erwin Griswold of Harvard Law School described it as an "old line" article of which he wished that more were published nowadays. What were the characteristics of these "old line" museum pieces? One commonly heard suggestion, at least in Australia, is that they were absorbed in technicality, with a lack of appreciation of real issues, and that for this reason there is little occasion to be nostalgic about their passing. But this is certainly an oversimplification. There is a good deal less technicality, in the sense of attempt at comprehensive summation of the authorities, in the writings of older writers like Holmes, Pollock, Dicey or even Anson, than would be found now in many law review articles. What was rather characteristic of such writings was belief in the validity of the continuing values, enshrined in the law as they had emerged even in the remote past, accompanied by varying degrees of anxiety about threats to those values from social factors developing outside the law. In Dicey's case, this exhibited itself particularly in his deep suspicions of what he called collectivism and, in Pollock's case, in his attempts to pin down what of the law could be pinned down in codifications of various branches of it. He worked at these assiduously, despite the belief which he expressed that a statute by the nature of it was less effective to dispose of a problem than a well-considered judgment in the same sense.

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