BOOK REVIEWS

ALTHOUGH increasing attention is being paid to modern comparative law at the present time, it would be true to say that less interest is generally shown in this country in the comparative study of the history of law or of the original documents that make up the sources of English and Roman law. This is not surprising as far as English law is concerned, as the difference of time between these two great legal systems makes it less likely that a great deal of practical value may be gained from such a study. Moreover, in an age of specialisation, less scope is allowed for the development of comparative legal historians of the stature of a Maine, a Vinogradoff or a Kantorowicz. Yet the comparative study of the sources of law is a fascinating subject which not only helps us to understand the true proportions and significance of our own legal system, but also makes us conscious of the historical framework within which all legal systems operate and develop. This comparative study of the Edictum Perpetuum in relation to the Register of Original Writs is a Habilitationsschrift—a thesis for the admittance of the author to the academic profession— presented to the Faculty of Law of the University of Zurich in the winter of 1955-56 and published under the auspices of the German Association of Comparative Law as Volume 2 of their series of monographs devoted to special topics. The connection between the Edict and the Register of Writs has not, of course, escaped the attention of legal historians. It is, in fact, a stock example frequently referred to in books on Roman law or legal history. In the Register we have a collection of original writs issued by the Chancery. Medieval law being entirely procedural, these writs were the law. Thus the Register was the nearest thing to the textbooks and codes of modern law. Moreover, the issue of these writs depended on the office of the Chancellor. Similarly, in Roman law the Edictuvi—at least the album of the formulae—contained the forms of action which, in a system also dominated by procedure, were available to litigants. These forms were issued under the authority of the praetor, whose functions were comparable to those of the Chancellor. As Pollock and Maitland wrote: " After all that has hitherto been said . . . we

ALTHOUGH increasing attention is being paid to modern comparative law at the present time, it would be true to say that less interest is generally shown in this country in the comparative study of the history of law or of the original documents that make up the sources of English and Roman law. This is not surprising as far as English law is concerned, as the difference of time between these two great legal systems makes it less likely that a great deal of practical value may be gained from such a study. Moreover, in an age of specialisation, less scope is allowed for the development of comparative legal historians of the stature of a Maine, a Vinogradoff or a Kantorowicz. Yet the comparative study of the sources of law is a fascinating subject which not only helps us to understand the true proportions and significance of our own legal system, but also makes us conscious of the historical framework within which all legal systems operate and develop.
This comparative study of the Edictum Perpetuum in relation to the Register of Original Writs is a Habilitationsschrift-a thesis for the admittance of the author to the academic professionpresented to the Faculty of Law of the University of Zurich in the winter of 1955-56 and published under the auspices of the German Association of Comparative Law as Volume 2 of their series of monographs devoted to special topics.
The connection between the Edict and the Register of Writs has not, of course, escaped the attention of legal historians. It is, in fact, a stock example frequently referred to in books on Roman law or legal history. In the Register we have a collection of original writs issued by the Chancery. Medieval law being entirely procedural, these writs were the law. Thus the Register was the nearest thing to the textbooks and codes of modern law. Moreover, the issue of these writs depended on the office of the Chancellor. Similarly, in Roman law the Edictuvi-at least the album of the formulae-contained the forms of action which, in a system also dominated by procedure, were available to litigants. These forms were issued under the authority of the praetor, whose functions were comparable to those of the Chancellor. As Pollock and Maitland wrote: " After all that has hitherto been said ... we 768 have yet to speak of the most distinctive trait of our medieval law, its ' formulary system' of actions. We call it distinctively English; but it is also in a certain sense very Roman. While the other nations of Western Europe were beginning to adopt as their own the ultimate results of Roman legal history, England was unconsciously reproducing that history ..." (quoted at p. 48, n. 170). It is surprising that, until now, no monograph should have been published treating the Register and the Edict in relation to each other; we are indebted, therefore, to Dr. Peter for this book, which compares these documents in an illuminating and scholarly way. The learned author's aim is to consider the outward and inner relationships between the Register of Original Writs and the Edictum Perpetuum and seek any similarities and analogies in the belief that such a comparison between these two systems, independently arrived at, may throw some light upon the method of historical development in general, and in Roman and English law in particular. He wishes to show that the history of these documents is so similar that the keys to the understanding of the history and structure of one can provide the keys to the understanding of the other (p. 7). It is, however, from the Romanistic point of view that he judges the value of the comparison, for the comparative richness of English historical documents may reveal aspects of the Edictum which-in view of the scarcity of Roman documents-could not otherwise be readily understood or evaluated (p. 108). Thus, after a preliminary survey of the subject, the learned author devotes chapter I to a fairly detailed account of the English system of writs. He discusses the form of the writsparticularly the writ of right-with examples, together with an outline of the procedure and structure of the courts, including jury courts. Chapter II is concerned with the conceptual and historical analogies between writ and actio and emphasises that, both in outward form and structure, the Register is remarkably similar to the Edictum; but the points of difference between these documents-particularly in matters of substance-are carefully pointed out. We also have here a striking analysis of the procedural nature of English and Roman law, which is contrasted with the modern method of thinking in terms of rights rather than of actions (pp. 51, 56-57). At the same time the learned author enables us to look at a continuous process of development rather than at a static picture. Flexibility is found followed by a later period of consolidation (pp. 61 et seq.). In the last chapter (III) we have a synthesis of the author's conclusions based upon a direct comparison between the structure and contents of the Register and the Edict. The main lesson of the comparison is that the study of the Register helps the Romanist to understand the development of the Edictum in those places in which the Roman sources are inadequate, lost or interpolated. Thus the International and Comparative Law Quarterly [VOL. 7 reconstruction of classical law, as well as its separation from Byzantine or medieval law, are greatly facilitated. In a more general way the comparison illuminates the nature of the law of actions as a whole and helps us to appreciate the process of development from acliones to substantive rights. The book concludes with a number of appendices reproducing examples from the sources, a parallel table of contents of the Edict and the Register of Writs, and some detailed notes on the relevant literature. Finally, the standard of production is of a very high order.
There is no doubt that the learned author has produced, on the whole, a sound and valuable account of a problem which, so far, has only been treated marginally. His account of English procedure is well balanced, precise and of exceptional clarity. Less is generally said about the Edict but this is possibly due to the fact that the book is mainly addressed to civil lawyers. Perhaps the most interesting chapter is the second, for in it we have not only a clear exposition but also a deep analysis of the subjectmatter. On the debit side, it should be made clear that in general the author relies on secondary sources. His interest is interpretation rather than research. Thus, he does not throw any light on such topics as the authorship of the Register nor does he advance our knowledge (e.g., pp. 90 et seq.) of the exact date on which it became definitive. His main source of information is Maitland who, in the words of Professor Plucknett, "it must be confessed raised a good many more problems than he solved." Again the discussion of the role of the writ of trespass and the action on the case is inadequate. It is surprising that the author, familiar as he is with modern English literature, does not refer to Dr. Kiralfy'8 book on this action. Moreover, on the Roman side he does not throw any light on the question of the origins of the Edict. Chapter III, which is devoted to comparison, is disappointing after chapter II; the short space devoted to it forces the author to appear in some respects superficial, for, although we can a priori agree with the view that the parallel development of the Register and the Edict is of the highest interest for Roman lawyers, the reasons given are too few and general to support it. However, within these limitations, we must welcome this book as an interesting contribution to a subject of comparative legal history that has not, to my knowledge, been dealt with in detail elsewhere. And we must also welcome the renewed interest of Continental scholars in English legal history.

A. G. CHLOBOS.
Law in the Making. By SIR CAHLETON ALLEN. Sixth edition.
[Oxford University Press. 1958. 628 pp. £2 10s.] A NEW edition of this evergreen classic is very welcome; it is one of the very few works by a living author which makes a real