SIR,—There is one point, of more importance than it may
seem to be, raised but •not examined in your able article " Detention Without Trial." You rightly draw a distinction between " what the law in fact is, and what anyone may think that the law ought to be." But you accept, as if it were a truth, the legal fiction that tht function of the .Courts is limited to the discovery of " what the law in fact is." Can' this ancient piece of forensic make-believe really stand? And did not the majority decision of the House of Lords in the Liversidge case actually determine, rather than discover, the present law?
I venture to suggest that this latter question must be answered in 'he affirmative; and that it is a question addressed to common sense, not to _legal learning. If this is so, it still further strengthens the conclusions reached in your article.—I am, Sir, &c., GEOFFREY FABER.
United University Club, z Suffolk Street, S.W. r.
[Surely, by " discovering" the law the Courts " determine " what the law is. It remains, as we dearly stated, what thelighest Courts declare it to be, unless and until Parliament amends- it.—En., The Spectator.]
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