2 70 WESTERN AUSTRALIA LAW REVIEW
too fast to avoid the strains resulting from the slower progress at lower levels; democracy at provincial headquarters fits ill with autocracy in the villages. Whatever the merits of the basic democracies as a retraining of the Pakistani people in political processes, the powers vested in the President are certainly formidable. He has wide authority to legislate by ordinance when the National Assembly is not in session and his emergency powers are immense. Gledhill's account of the exercise of emergency powers by Ayub Khan in 1965 (pp. 140-141) shows just how extensive, far reaching and destructive of elementary notions of constitutional govenunent they are. The chief interest of this second edition lies in the account of constitutional and administrative problems and developments since 1958. Since the abrogation of the 1956 Constitution there has been a considerable volume of legislation, often reflecting welfare state notions. Much of it was brought into operation by ordinance. This is noted in the appropriate chapters dealing with the public and private law of Pakistan. Professor Gledhill is very well equipped to write this volume. In- evitably the pressures of space have compelled him to compress, and the results is a detailed text tightly and economically written. It is a very useful contribution to this worthwhile series, and in less than four hundred pages affords a conspectus of constitutional and legal developments in Pakistan. ZELMAN COWEN
ISAACISAACS. By Zelman Cowen. Oxford University Press, Melbourne. 1967. Pp. 272 (including frontispiece, eight other plates and index) $6.00.
Biographical studies of Australian judges have hitherto formed a small and undistinguished part of the legal literature of this country. Until the publication of the present work there were no substantial Liographies of the local judiciary which even attempted a detailed and sophisticated appraisal of their subjects' contributions to the law. Below the High Court level only two essays in judicial biography have appeared. These have dealt with Chief Justice Higginbothaml
1 MORRIS,GEORGE HIGGINBOTHAM (1895). BOOK REVIEWS 27 1 of Victoria and Chief Justice Way2 of South Australia. Neither book satisfactorily assesses its subject's legal work. Of the High Court judges only Barton3 and Isaacs himself4 have until now been subjected to extended biographical treatment. The Barton book is an historian's work and deals mainly with Barton's political activities in the federation movement. To this extent it is a good one. It is in no sense a lawyer's book; it devotes less space to Barton's part in drafting the Constitution than even a political bias in viewing his work would seem to warrant and only a few pages to his sixteen years as a High Court judge. Max Gordon's "Sir Isaac Isaacs" appeared in 1963 and, for the lay reader, may to some extent have stolen Professor Cowen's thunder. Gordon's book is neither lawyerly nor overtly learned; it gives a simple, if somewhat rhapsodic, account of Isaacs' career. It includes short chapters on several of Isaacs' major decisions, in a curious style remote from academicism, and is prefaced by an important foreword by Sir Owen Dixon. Smaller essays on other judges have appeared, of which Professor Cowen's own sixty-page portrait of Sir John Latham5 is by far the most out- standing. Unfortunately its brevity allows little more than a cursory estimate of Latham's work both as politician and judge. Two Macro-- san Memorial Lectures were delivered in the University of Queens- land in 1938 on Sir Samuel Griffith. These were publishede and have possibly received harsher treatment by implication7 than they de- served; but it is nevertheless true that in them Griffith's judicial career both as Chief Justice of Queensland and of the High Court was almost totally ignored. There is also an unpublished thesiss held by the Uni- versity of Queensland recording the events of Griffith's life. Henry Bournes Higgins has been the subject of a "Memoir" by his neice, Nettie Palmer: but this, as the title suggests, is a work more literary than legal. It is in this context, then, of a dearth of professional scholarship in the field of Australian judicial biography that Professor Cowen's
2 HANNAN,THE LIFE OF CHIEFJUSTICE WAY (1960) . 3 REYNOLDS,EDMUND BARTON (1948). 4 GORDON,SIR ISAACISAACS (1963) . 5 COWEN,SIR JOHN LATHAM AND OTHERPAPERS (1965). 6 GRAHAM,SIR SAMUELGRIFFITH (Queensland University Macrossan Lectures, 1939) . 7 By C. L. Pannam in his review of HANNAN,THE LIFE OF CHIEFJUSTICE WAY,in (1960) 2 M.U.L.R. 575. 8 VOCKLER,SIR SAMUELWALKER GRIFFITH (unpublished thesis presented for the degree of B.A. (Hons.) in the University of Queensland, 1952). 9 PALMER,HENRY BOURNES HICGINS: A MEMOIR(1931). 272 WESTERN AUSTRALIA LAW REVIEW
"Isaac Isaacs" makes its appearance. The Isaacs story, it is submitted, has two aspects relevant to 1968. First, it is possibly the greatest per- sonal "success story" in the history of Australian public life, and as such deserves attention purely as a study in the private and social psychology of success. Second, Isaacs' life and work has had conse- quences impinging on the life of every Australian: there is continuing relevance in it for social, political and economic historians and for lawyers generally. The tale of an immigrant Po!ish-Jewish tailor's son attaining vice- regal status by his own abilities might in some countries have become the basis of a national myth. Not in Australia. We have few heroes, unless they are sportsmen or adventurers: Bradman and Kingsford- Smith, one suspects, will long outlive any lawyer or politician in popular imagination.1° There is no local equivalent of the Dick Whit- tington or Lincoln legends because Australian egalitarianism is such that the bourgeois values these legends embody are taken for granted. If an Australian equivalent existed it could well be found in Isaacs. Isaacs was born in Elizabeth Street, Melbourne in 1855. He went with his family to Yackandandah in north-eastern Victoria in 1859 and later became a teacher in near-by Beechworth. Isaacs thereafter entered the law as a clerk in the Melbourne Crown Law Office and became, successively, Attorney-General of Victoria (1894 and 1900) and the Commonwealth ( 1905), and Justice ( 1906) and Chief Justice (1930) of the High Court. Later, in 1931, he achieved apotheosis as the first Australian-born Governor-General, a post he occupied for five years. He died in 1948. The story is a testament to the efficacy of the combined applica- tion of ambition, talent and work. Isaacs sought and received no favours. He was a great individualist-probably the greatest indivi- dualist in the history of the High Court. Some would have said, as Deakin did,ll that he was a great egotist, and it is true that he made many enemies in public life. Deakin writes of the personal antipathy of many members of the 1897-1898 Convention towards Isaacs and makes it plain that he considered Isaacs largely responsible for the bad impression made by the Victorian delegation at the Adelaide sittings.12 Barton's hatred of him is legendary, and we may be sure that no love was lost between him and Griffith. Even his relationship
10 Sir John Monash, Isaacs' contemporary and co-religionist, is possibly the most outstanding exception, although even he falls almost within the "adventurer" class. 11 THEFEDERAL STORY 70 and 80 (2nd ed. 1963). 12 Id. at 80. BOOK REVIEWS 273 with Higgins, to whom he was closer politically, appears to have been distant. Notwithstanding these attitudes Isaacs' drive and ability could not be denied. Wisely, perhaps, Professor Cowen declines to offer firm conclusions of a psychological kind. But he presents his facts with an eye for likely influences. Most striking of these is the picture that emerges, for the first time, of Isaacs' mother as an intensely driving and religious woman, uncompromisingly ambitious for her sons' success Several letters, both to Isaacs from his mother and vice-versa, reveal a continuing love relationship between them of a profound and ex- traordinary kind. The mother-image appears to have dominated Isaacs' emotional life to an extent surpassing every other human re- lationship, even his relationship with his wife and family. It continued until her death, in 1912, years after Isaacs went to the bench. The picture of a High Court judge, aged fifty-five, writing daily letters to his mother whilst away on circuit in quaint terms of endearment makes curious reading. Isaacs suffered to a considerable extent from anti-Semitic feeling and expression at many points in his career. Clearly his Jewishness did not make advancement any the easier for him. Again, Professor Cowen does not reach conclusions on this score. The impression he leaves is that anti-Semitism affected Isaacs, that he strongly and publicly resented it, but that whatever rational animosities existed towards him were founded more on his own personality defects than on his religion. One wonders how far these factors were complemen- tary and how far the circle was a vicious one. The fact remains that Isaacs was often disliked and distrusted, fre- quently, one feels, for good reason. Professor Cowen treads an almost over-cautious path in discussing Isaacs' personality and his relation- ships in public life. His treatment is studiously fair. He holds no brief for Isaacs and the book is in no sense a whitewashing of him. On the other hand he is at pains to suggest that Deakin treated Isaacs un- fairly18 in "The Federal Story", although he concludes elsewhere that Deakin's opinion was 'in many respects sound'.14 The picture that emerges from all this is clear enough: for all Isaacs' brilliance, ambition and devotion to work he was also self- assertive, dogmatic and humourless: a kind of intellectual bore. Isaacs was a small man physically and he appears to have possessed all the little man's passion for recognition. He maintained a keen but aca-
13 COWEN,ISAAC ISAACS47, 48, 71-72. 14 Id. at 80. 2 74 WESTERN AUSTRALIA LAW REVIEW demic interest in religion, especially his own. But he saw his Jewish- ness as a matter of religion only and deplored the whole concept of political Zionism, a fact which late in life alienated him from many of his co-religionists. Above all, Isaacs saw himself as an Australian national at a time when colonial-mindedness was deeply ingrained in political thought and feeling. This nationalism lead to consequences of a profound and enduring kind. These consequences were legal in form, practical in effect. Pro- fessor Cowen regards Isaacs' judicial work as the most important aspcct of his career, and this is reflected in the detailed and extended treatment it receives from him. It is important because constitutional doctrine in Australia, particularly as reflected in the balance of federal and state powers, has considerable practical effect on the community at large. Isaacs played a major part in shaping constitutional doctrine, and the present imbalance in favour of the Commonwealth is historically and in part due to him. As founding-father, Attorney-General and judge, Isaacs was in a unique position to work for the centralized administration of the labour-oriented policies in which he believed. Both as a member of the Federal Convention of 1897-1898 and on the High Court Isaacs made major contributions to the structure and interpretation of the Constitution. These have affected the lives of every Australian. In the Convention Isaacs' vehement and uniquely informed advo- cacy of excluding privileges and immunities, due process and equal protection clauses from the Constitution played a large part in reliev- ing Australians and their courts from the prolific and difficult litiga- tion that these clauses have occasioned in the United States. He argued unsuccessfully against the nexus provision of the Constit~tion,'~ and showed additional foresight in doubting that the Senate would remain effectively a States house and in regarding finance as the crux of the federal problem. But it was as a member of the High Court for nearly a quarter of a century that Isaacs implemented his particular view of Australian federalism. In the Court his essential nationalism, however ardent and dogmatic, ultimately prevailed on many questions of constitutional interpretation. While it is too much to claim that but for him the fundamental doctrines of implied immunity of instrumentalities and reserved State powers would have remained intact, it is clear that these doctrines would have continued to prevail for much longer had Isaacs not remained on the bench after Griffith and Barton had left it.
13 s. 24 of the Constitution. BOOK REVIEWS 2 75
Professor Cowen deals with Isaacs' judicial work in two separate chapters, devoting one to constitutional cases and one to other cases. This arrangement is convenient for the lay reader who may wish to be spared the rather specialist history of constitutional law from 1901 onwards that comprises Chapter 7, although Professor Cowen's treat- ment of it is straightforward and readable. He has, in fact, taken the opportunity to go some way beyond the strict bounds of his subject and to write an almost self-contained essay on constitutional interpre- tation during Isaacs' years on the bench and, indeed, thereafter. This incorporates the history of the new protection cases, the immunity of instrumentalities and reserved State power cases, the early defence power, section 92 and immigration cases, and the formative cases in the field of industrial relations. One has only to read this list of sub- jects to appreciate the significance of the High Court's work between 1906, the year of the Railway Servants' Case,le and the late twenties and early thirties, when the James cases17 were decided. This was precisely the period of Isaacs' judgeship. His point of view, whether in concurrence or- dissent, represented that vigorous nationalism favouring the growth of central power which appears, in retrospect, as the principal general feature in constitutional development in the period as a whole. Professor Cowen has obviously enjoyed his job of authorship im- mensely. He has gathered material-letters, photographs,18 memories, extracts from contemporary documents, scraps of conversations-from widely diverse sources. His presentation is very detailed, scholarly and fully documented. The book will be read with enjoyment by both lawyers and laymen, not least because the author has maintained a judicious balance between explanation and assumption, information and opinion. He writes learnedly and with an eye for wit. At times, however, the style threatens to slip into the grandiloquent, a feature not ameliorated by the author's tendency at certain points to incor- porate passages in the text which derive from statutes and judgments. I would have preferred a picture of Isaacs more complete in in- formation of a domestic kind. We have an exhaustive portrait of the public Isaacs, much less of his private life. In particular we are told almost nothing of his relationship with his wife and little of his normal home life and fatherhood. Several references are made to his daugh-
16 (1907) 4 C.L.R. 488. 17 James v. The Commonwealth, (1928) 41 C.L.R. 442; James v. Cowan, (1932) 48 C.L.R. 386; James v. The Commonwealth, (1936) 55 C.L.R. 1. 18 Including a splendid photograph of the first five judges of the High Court sitting together. 2 76 WESTERN AUSTRALIA LAW REVIEW ters, and Professor Cowen apparently consulted Mrs Marjorie Cohen, Isaacs' elder daughter, in his work on the book. It is a pity he was unable to obtain more of the homely kind of information that would balance his account. Not that the Isaacs who emerges from these pages is in any way de-humanized: we feel as though we know him well as a politician and judge and it is in these capacities, of course, that his claim to our attention chiefly rests. The result is that Professor Cowen has written an exceptionally good book on the public Isaacs. It deserves to be widely read. In many ways it confirms what one had, from reading his judgments and from much less knowledge, always felt about him. It is a book written with great academic ability from a lawyer's point of view, and is quite indisputably the best biography ever written of an Australian judge. As such it should be read by lawyers, historians, and by those interested in the psychology of power. NEVILLE CRAG0
PRINCIPLESOF BANKRUPTCYIN AUSTRALIA. (2nd ed.). By E. J. Hayek. University of Queensland Press. 1967. Pp. 165. $5.00.
And thou shalt not, Firenze 1766, and thou shalt not sequestrate for debt any farm implement nor any yoke ox nor any peasant while he works with the same. Ezra Pound, Canto XLIV.
AS Dr E. J. Hayek points out in the timely second edition of his "Principles of Bankruptcy in Australia", 'the English law of bank- ruptcy is entirely a creature of statute'. It has been the subject of much statutory modification and refinement since the Act of 1542 which introduced the first rules in bankruptcy. By the time this issue goes to press the Commonwealth of Australia Bankruptcy Act, No. 33 of 1966, will have come into operation. The Commonwealth legisla- ture cannot be accused of hastening this piece of reforming legislation: a Committee was appointed to review the bankruptcy law of the Commonwealth on 23rd February 1956 and its Report, which sche- duled a complete draft bill for a new Bankruptcy Act, was completed on 14th December 1962; the Act based upon the Bill was assented to on 1st June 1966 and becomes operative in March 1968. The second