A JUDGE'S MISCELLANY. By M. Hidayatullah. N.M.

Tripathi,
Bombay. Pp. xi+324. Rs. 30.

AMONG THE judges of the Indian Supreme Court, past and present,
Justice Hidayatullah is second to none in scholarship. There is something
alluringly exceptional about his scholarship and that is its versatility.
Most judges tend to be just legal scholars; Justice Hidayatullah, on the
other hand, moved about in the realm of learning, picking flowers and
casting pearls, with an enviable abandon. Aristotles and da Vincis may be
rare phenomena; Hidayatullahs also are not of the common run of man-
kind. A Judge's Miscellany is clear proof of his versatile grasp of several
branches of learning. He could deal with the question of the authorship
of the plays generally attributed to Shakespeare with almost as much
familiarity and ease as he could speak of playing tennis with his friend
and colleague Justice Vivian Bose.
There are thirty-two pieces in this volume. As may be expected of
an illustrious judge, most of these are concerned with law and lawyers,
including judges. Six of them are convocation addresses delivered at
universities in India and abroad. Five of them belong to the section
entitled "Biographical Sketches". These vignettes include sketches of
Mahatma Gandhi, Guru Nanak Devji and Martin Luther King, Jr. One
expects him to be well at home when speaking of "Judicial Methods" and
"Law's Delays", but what amazes one is that he is equally conversant
with the problems of Indians abroad in Asia and Africa. His study of
Guru Nanak Devji is ardent and erudite. It is in the profound under-
standing of the spirit of the founder of a religion that the greatness of the
writer himself is revealed. The speech delivered at Albert Hall, London,
is not merely a brief biographical study of the great saint, but also a short
expose of Sikhism. Justice Hidayatullah quotes 1 a saying among the
Muslims in the north of India :

Baba Nanak Shah Faqir

Sikhan Wa Guru Musalmanan Wa pir
(Baba Nanak, king and fakir is a great Guru of the Sikhs and a
great spiritual leader of the Muslims)

He observes:

In the world of strife and self-aggrandisement the teaching of the

Guru must serve as a beacon-light. His message is universal and
the Code of Conduct inculcated by him is the highest by any stand-
ard. Any one who has acquainted himself with the life and teach-

1. M. Hidayatullah, A Judge's Miscellany 134 (1972).

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1979 ] BOOK REVIEWS 125

ings of Guru Nanak will feel irresistably drawn to him because he

pulls at the heart strings.... 2
Seeing the eager earnestness and elegant eloquence revealed in the
monograph, one is inclined to think that this Muslim jurist is not just
drawn to him, he has imbibed the Guru's spirit.
His speeches and essays are strewn with medieval, modern and
personal anecdotes. "Law's Delays", for instance, is studded with narra-
tives of intriguing events and interesting saws. There is a passage in this
analysis of law's delays which appealed to this reviewer. Justice Hidayat-
ullah says :

The judge when he has heard the case and is considering his judg-
ment is entitled to take time.... The litigant...is not interested in a
learned or a ponderous judgment. He is not interested in what
Miller said in his Data of Jurisprudence are the elegantia juris. He
is only interested to know whether he has won or lost. That can
be told in one sentence.3

With respect, in many an instance the litigant might like to know why
he has lost, in case he has. And it might take a little more than one sen-
tence to tell him that. But it does not take over a hundred type-written
pages to give the reason 4 Elegance of judgments can also be achieved
more easily if they are not long winded. Those of our judges who have
a desire for recognition as jurists and jurisprudents can indulge in the
writing of articles or books. This particular infirmity of noble minds is
understandable, but its attainment should not be through the medium of
judgments which are supposed to serve a different purpose and that is,
handing down a decision of the dispute before the court. Are not these
lengthy judgments and the time spent to prepare them one avoidable
cause of law's delays ?
Justice Hidayatullah's writings are, no doubt, eminently interesting.
One wishes, however, that he used little Latin and less French in his Eng-
lish essays and speeches. If they are considered to add to elegance, it
need not perhaps be emphasised that English also has an elegance of its
own, which to the general reader in India, is more easily perceptible.
We should feel grateful to Justice Hidayatullah's friends who have
persuaded him not to keep his light under the bushel, but to bring it to
the light of day in the form of this Miscellany.
Joseph Minattur*
2. Ibid.
3. /</. at41.
4. The judgments in Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C.
146 may have been of about 1200 pages in type script.
*Ph. D. (London), LL.D. (Nimeguen), D.C.L. (Strasbourg), of Lincoln's Inn,
Barrister, Research Professor, The Indian Law Institute.

www.ili.ac.in © The Indian Law Institute

LEGAL THEORY-I. By P. Rajaram. The Macmillan Company of India
Limited, Delhi. 1977. Pp. vi+144. Rs. 15.

P. RAJARAM'S Legal Theory1 is a sleek book running into 144

pages of bare text. The book has an attractive paperback cover2 and is
reasonably priced at rupees fifteen only. However, appreciating the con-
tents of a book is not as easy as that, particularly in the case of a book
tailor-made for set objectives and tasks, like the present one.3 It is true
that a text-book has to primarily cater to the curricular and examination
needs of the students, but that alone shall not be the end for a good book.
Writing a text-book does present a difficult task of keeping in mind the
aims, often opposed, of examination requirements and academic stand-
ards. But only those books that pass this dual aim test deserve a distinct
place amidst the growing crop of text-books of today.
The book has condensed, not too successfully, a fairly broad subject
universe into a narrow space. It presents legal theory subject (as suggested
by the title of the book) in three parts, namely 'Ancient Law' (part I),
'Comparative Law' (part II), and 'A short History of Judicial Institutions
and the Constitutional History of India' (part III).4 Part I of the book
relating to Henry Maine's classic "Ancient Law" is divided into eight
chapters, which are on the lines of the original work. Each chapter is
devoted to bringing out the main points of Maine's work and subjecting
them to a critical appraisal with a view to making the original work in-
telligible to the students. The author has succeeded in his limited mission
to a fair degree. "Ancient Law", apart from being a curricular necessity
for a legal theory course, is a fascinating legal classic, which is read and
re-read by scholars and others with impeccable interest even today. The
abiding contribution of Maine is his sociological approach to law and
in this sense his work can be said to be the forerunner of sociology of
law and legal anthropology. "Ancient Law" has also been recognised as
a landmark of the historical school movement in England, which high-
lighted the need for appreciating law in the evolutionary framework,
distinct from the positive school or natural school. It would have been

1. P. Rajaram, Legal Theory-I (1977). [Hereinafter referred to as Rajaram],

2. The publishers deserve commendation for the impressive getup of the book.
3. Preface to the book provides this clue : The aim of this book is extremely
limited. The book is intended for the use of First Year students of Law, reading Legal
Theory I for the University examinations" Rajaram at iii.
4. Strictly speaking there is little justification in giving legal theory title to such
an assorted course, which could have been better described as a "legal system"
course. Legal theory is generally concerned with the analysis of basic elements of
law. For a detailed discussion, see John D. FiEch, Introduction to Legal Theory,
generally chapter I (2nd ed.)

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1979 3 BOOK REVIEWS 127

worthwhile to spell out the salient features of Maine's approach in the

beginning of part I of the book.
The most unique contribution of Maine is his understanding of man's
relationship with the society in the ancient set-ups. To him the accepted
relationship pattern was not individual versus the society but family versus
the society.E Family being the recognised social unit individual was un-
identifiably merged in the family group for all social and political pur-
poses. This fact not only influenced individuals' legal position in the eyes of
Maine but also produced impacts on the property law, contract law and
criminal law ideas. However, this central theme would have been better
expounded by giving more detailed treatment to status and contract con-
cepts in chapter IV of part I6. Similarly a better description of the fea-
tures of work in progressive and stationary societies7 in the light of Maine's
work would have been immensely useful for introducing to the students
the societies in question in a more pertinent way.
The book gives an interesting account of the emergence of natural law
in Greece in chapters II and III. There is a pithy observation in this
context, namely

Thus one phase of social and political contests between kindreds

and the kinless was competition between a traditional tribal la.w
and the political law of city-state This competition attracted the
attention of the great Greek philosophers. Their idea on law and
the legal system was expressed in simple phrase natural law.8

However, the author's observations concerning Manusmriti in the con-

text of the early codes in India 9 cannot be deemed to be appropriate in a
brief book like the present one.
Part II of the book deals with comparative law, which is discussed in
eight chapters. This part of the book, dealing with a relatively new curri-
cular subject could have been given a better treatment in respect of the
scheme of the chapters and also their contents. Chapters I to IV could have
been replaced by a comprehensive chapter mainly dealing with the defini-

5. Even earlier thinkers like Hobbes and Locke thought in terms of social con-
tract between individual and the society.
6. Rajaram has discussed these concepts at 25-27 and in this context observa-
tion like the following : "But India presents a unique picture where man has not
denounced the status of the family but is also trying to enjoy the new status by the
job he has undertaken in an organisation". {Id. at 27) are likely to impair a clear
understanding of the concepts.
7. Rajaram has used terms "stagnant and dynamic societies" at 1 and 6.
8. /</. a t l l .
9. The code of Manu,.. unfortunately became the iaw of India in later
centuries, debased the national institutions and also gave birth to the most
disastrous and blighting of all human institutions, viz., the caste system
Id. at 4.

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128 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 21 : 1

tional, descriptive and historical account of the subject. Chapter V

relating to the major legal systems deserved more space and details. At
least the characteristic features of each major legal system should have
been properly elucidated.10 The author seems to have heavily leaned on
the outlines given by the Indian Law Institute publication on com-
parative law10a for part II of the book. 11 To bank on a reliable base book
is a safe policy* however, the argument of maintaining fidelity to the base
book should not be carried too far, particularly where it affects the possi-
bility of original academic contribution. In this context the following
observation of the author is likely to give a wrong impression : "Though
the comparison between these systems in various aspects could be very
interesting it is omitted for the sake of following the methodology of the
Indian Law Institute...." 32 Chapter VII relating to "Communist China :
Legal Institutions" and chapter VIII relating to "Legal Systems in Indo-
nesia, Afganistan and Malaysia" are informative and well written. Author's
presentation of the problems of modernisation and egalitarianism in the
context of the legal systems of Indonesia and Afganistan invokes interest
and is likely to generate desire in the students to draw parallels with other
legal systems in this part of the world, including India.
Part III is devoted to the study of judicial and constitutional his-
tory of India, from the ancient Hindu period to the modern day. This
part is assigned less than fifty pages and is divided into nine chapters.
The book has all through suffered for lack of space but in this part the
space limitation has become too apparent, rendering the treatment of some
topics as brief as to the extent of being meaningless. One can hardly
imagine of doing justice to the subject when Indian constitutional history
is presented in fourteen pages, 13 or the salient features of the Indian Con-
stitution are presented in only 71 lines.14 The section dealing with the
history of judicial institutions has received fair coverage starting from the
courts in the early seventeenth century to the Supreme Court and High
Courts in free India. The history of judicial institutions could have been
better understood by the narrration of the socio-political developments at
different times. The socio-political forces that led to the emergence,
growth and decay of the Mayors Courts, the Supreme Courts of
Judicature and the High Courts during British times and after could
have been usefully identified in the book.

10. For instance some material discussed in the context of dialectical materia­
lism at 74—76 could have been better discussed under the Communist Legal System
head at 65-67.
10a. An Introduction to the Study of Comparative Law (I.L.I. 1971).
11. This fact is acknowledged in the book at more than one place (see pages 47,
54 and 68). Chapters VI and VII of the book are based on the material from the Law
Institute publication, supra note 10°, itself (see note at pp. 72, 80, 89).
12. Rajaram at 68.
13. Rajaram, chapters VII, VIII and IX.
14. Id. at 142-144.

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1979 ] BOOK REVIEWS 129

Finally, the book, in a sense, is a truly "student text-book". It is

marked by the use of simple language and direct style, which certainly
enhances its value for the students. Furthermore, the novel feature of
scrupulous avoidance of footnoting and references is bound to make the
book specially welcome to the student, who would much like to evade the
botheration of looking elsewhere. However, in the end one wishes that
the book should have been something more than what it is.
B.B. Pande*

♦Reader, Faculty of Law, Delhi University.

www.ili.ac.in © The Indian Law Institute