One of the many ways in which the Critical Legal Studies movement has enriched the possibilities of legal education has been through the art and science of Trashing. This process, a mild version of Deconstruction, consists of the law teacher’s examining the rhetoric in which legal dogmatics are couched and turning it on itself, showing the specious ideals, evasions, false logic and circularity of legal reasoning in general. At their best these displays might possibly teach someone something; at their worst they are harmless fun at the law’s expense. What would be surprising and noteworthy would be if the judges themselves began to engage in this sort of exercise.

Yet, in the first of these Butterworth lectures, that is precisely what we have. Lord Justice Mustill, taking as his theme the development of the law of anticipatory breach, and declaring in deadpan style that he comes neither to praise nor to blame but simply to say how things are, clearly sets out the ideals by which the common law is supposed to function: the gradual development of general and coherent doctrine, through the meticulous examination of individual cases, leading to broad doctrines that are as certain as they can possibly be, yet as flexible as they need to be. He then systematically shows that the law of anticipatory breach satisfies none of these criteria, even though it has been in gestation since the 14th century, if not earlier. Few general propositions of law can now be made; those that can be made are not obviously just, and can for the most part be shown to be based on misunderstandings of earlier cases; and there are still problems in plenty for later generations of judges, reflecting not moral dilemmas to come but left-over unsolved conceptual problems.

To be sure, the presentation is not quite what one would expect from a law teacher intent on trashing the law, though the differences seem unimportant to this reviewer. Where judges have made palpable errors, for example, one would not expect the law teacher to be quite so quick in explaining that it was really all counsel’s fault, for not placing all the materials in front of the judge (e.g., at p. 41). Also surprising would be the open hints as to the way the law could and should develop in the future (e.g., at pp. 77–78), which for the thoroughgoing trasher would be a distraction, but coming from a knowledgeable commercial judge are hardly unexpected.

Also different is the emphasis on the judge in legal development. It is the norm today even for the more orthodox legal historians to wear sackcloth and ashes on this point, bewailing the stupidity of their predecessors for supposing that legal development is prompted by judges who wish to do justice. They ostentatiously tie knots in their handkerchiefs to remind themselves that new law is made by counsel who take new points, being motivated by the desire to win their cases rather than by an abstract desire for justice. Yet this lesson can be over-learned. Certainly there is still plenty of scope for Mustill’s approach of outlining the doctrinal possibilities open to the judges, and evaluating their eventual choice with half an eye to what one can make of their sympathies towards one party or other. This is not the only sort of legal history, but it has its place.

Mustill’s demolition job is professional and thorough. The common law does not, it seems, progress; if anything, it gets worse. No case decided within living memory gains more than grudging approval, and few get that. Only at the end does Mustill get cold feet. Is there nothing that can be saved from this doctrinal mayhem? Casting about in the ruins, he can see only one thing: “After all, Mr de la Tour and Miss Frost won. And that was right” (p. 78). Thus he commends the rulings in Hochster v. de la Tour (1853) 2 E. & B. 678 and Frost v. Knight (1872) L.R. 7 Ex. 111—both classic anticipatory breach cases, the first concerning a promise to employ the plaintiff as guide and the second a promise to marry. His praise of Hochster is strange. In his detailed discussion of the case, he seems unconvinced of the