REVIEWS
| Published date | 01 November 1973 |
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01395.x |
| Date | 01 November 1973 |
REVIEWS
A
THEORY
OF
JUSTICE.
By
JOHN
RAWLS [Clarendon
Press:
Oxford University Press.
1972.
607
pp.
(including index)
€6.1
BENTHAM’R
call that we should have reasons by which
to
evaluate society’s
laws, rather than thnt we should accept the “self evident” tenets of natural
law
or
the
“
diit
of an unknown legislator
”
continues to strike
a
respon-
sive chord in most of
us.
So
also do the reasons by which he justifies his
own theory that society’s lnws should attempt to maximise happiness and that
each man himself
is
the best judge of his own happiness. Utilitarianism has
been subjected to many glosses by its advocates since Bentham’s day,
It
is
also
regulnrly “shot full of logical holes in lectures to first year students”
as
David Donnison has written recently. Despite this, utilitarianism in one form
or
another obstinately retains
a
compelling attraction, possibly because,
as
Donnison also says, we are seldom offered anything half
so
interesting,
or,
he
might have added, half
so
persuasive, in its place. In this stimulating and
important book John Rawls does offer
a
theory of social justice which is
certainly
as
interesting as that of the utilitarians and,
to
many, will be equally
if not more persuasive. His theory-that the primary aim of
our
social
institutions
sliould
be that of justice as fairness-is offered by him as
I‘m
nlternative to the utilitarian view which has for
so
long held the pre-eminent
place in moral philosophy.” He wishes to present
“
the theory of justice
as
a
viahle systcrnntic doctrine
so
thnt the idcn of maximising the good does not
hold
sway by default
”
(p.
686).
It
is
impossible
to
give
a
sunnnary
of
Ilawls’ theory which does justice to
the rich nnd cxtensive manner in which
he
presents
it.
His justifications and
elaborations are highly abstract in nature nnd are often rather too diffusely
presented.
As
cross references are infrequent and many subheadings obscure
in meaning, it
is
sometimes difficult for the reader to follow fully the line of
argument, despite the general clarity of the language. However, the bare
bones of the theory can be described and readily understood.
Itawls starts from the proposition that
a
concepbion of justice may be
rationally supported and is not merely,
as
the sceptic would maintain,
a
matter
of individual preference, like
a
preference for aniseed balls to acid drops,
dependent on emotional
or
environmental ,influences. The problem
is,
then, to
find out what principles of justice men would agree to accept if they were to
decide on the basis of reason alone and discard their present vested interests.
To
find these principles Rawls asks what agreement would be reached by men
if they were in
a
postulated “original position” (it can be seen that this
theory is in the tradition of social contract theories). In the original position
it
must be assumed that persons know nothing of their assets, abilities, defects,
intelligence, race, age
or
sex.
Neither do they know what will be their eventunl
position in society, nor the level
of
that society’s economic
or
cultural develop
ment. “The principles of justice are chosen behind
a
veil of ignorance”
(p.
12),
nnd
it
thus will not
be
possible to
‘I
tailor principles to the circum-
stances of one’s own case.” Knowledge of naturnl endowments
is
also excluded
Imause, if the aim
is
to find a
rational
conception of justice, one must not
start from nature’s essentially arbitrary and non-rational distribution of talents
and disabilities. Justice
is
a
moral idea and nature’s distribution
is
not based
on morality. Persons in the original position are also presumed to be mutually
disinterested (though they are presumed to have an interest in the welfare of
the next generation, which
is
essential if society’s efforts
at
the conservation of
resources are to be categorised as just),
“
A
conception
of
justice should not
presuppose.
,
.
extensive ties of naturnl scntimcnt. At thc basis of the theory,
one tries to assunic as little as possible”
(p.
129).
667
668
THE
MODERN
LAW REVIEW
\’ot.
Xi
The final full version of the principles of justice that Rawls consitlcrs
would be rationally arrived at by persons in the original position
is
found on
page
302
of the book and may be summarised as follows. First, and most
basic, is the principle relating
to
individual liberty. “Each person
is
to have
an equal right to the most extensive total system of equal basic liberties com-
patible with
a
similar system
of
liberty for all.”
Secondly,
as
regards the distribution of wealtli, inequalities are only to be
tolerated if they result in the greatest benefit to those least advantaged ant1
provided that these inequalities are attached to offices and positions which nre
equally open to all.
Attached to these two basic principles
are
priority rules w1iercl)y an
individual’s liberty can only be restricted in the interests of greater liberty for
all only, nnd not in order to increase material 1)enefits for all. 1,ibcrty is prior
to material goods.
Also
the second principle takes priority over considerations
of
efficiency. Thus
a
measure which produces greater efficiency
in
the produc-
tion
or
distribution of material wealth cannot be justified on that ground
if
it
leads
to
a
departure from the second principle that the wealtli must be distri-
buted either equally,
or
if not equally,
so
as
to benefit most those
lrnst
advan-
taged.
It
is this stress on the primacy of equnl liberty
RS
the foundation
of
jiisticr
which highlights the distinctions between Rawls’ theory and utilitarianism.
Utilitarianism tradibionally emphasises that the aim of social institutions
is
the
maximisation
of
satisfaction.
No
one method
of
distributing those satisfac-
tions is preferred over any other. Thus provided satisfaction is in fact maxi-
mised by such
a
procedure, satisfaction may be unequally distributed hetween
members of society. Obviously some utilitarians would argue that equality
in the distribution
of
goods will in fact lead to
a
greater total amount
of
satisfaction in most cases than an unequal distribution. Rawl’s answer to this
is
that in this case equality has no primacy
as
a
principle but is contingent
on whether
or
not it maximises the total amount
of
satisfaction.
“‘l’hrrs
there
is
no reason in principle why the greater gains
of
some shoulcl not compensate
for the lesser losses of others;
or
more importantly, why the violation
of
the
liberty of
a
few might not be made right by the grenter gootl shared I)y
many
’’
(p.
26).
A recent illustration of this difference
is
shown by the present controversy
over the Criminal Law Revision Committee’s report on 1‘:videnre. By their
proposals
the Committee would seem to sacrifice the old principle
“
better that
ten guilty men be acquitted than that one innocent man should be convicted
”
upon the altar of utility. Their proposals probably would lead to
a
highcr
rate
of convictions
of
the guilty and thus assist in the more efficient control
of crime. This would maximise happiness but
at
the expense of increasing
inroads upon the liberties
of
the innocent. Professor Hart thinks Bentliaiti
would have approved
of
the proposals. nut if one accepts Rawls’ view
of
the
primacy of liberty and equality, sacrificing the liberty of the few to increase
the satisfaction of the many would not be permitted,
or,
at least, wonlcl o111y
be permitted if it could be clearly shown that the liberties of the few were
being sacrificed in order
to
increase the general level
of
libcrty of
all,
especially those least advantaged.
Another ol~jection to utilitarianisni made by Itawls is that the ideals froni
which it must choose depend upon
“
existing desires and prescnt social circurn-
stances and their natural continuation into the future
”
(1).
262).
These
conditions may not persist and ideals derived from prescnt social circum-
stances may be defective. Justice as fairness, he says, starting from the basic
premise of the original position and assuming
“
certain gcneral desires
”
achieves
“
the requisite independence from existing circumstances.”
Is
this
true? How can
our
general desires be determined without having regard
to
existing circumstances? We cannot actually
put
ourselves into the original
position but only attempt
to
imagine ourselves in
it.
On what material can
our imagination work except on the basis of
our
experience? Rawls himself
Nov.
1973
REVIEWS
669
recognises that his views are very much in the European tradition of thought
and that other cultures might reach different conclusions. However, his
theory is certainly more immune than is utilitarianism from the influence of
strong but irrational feelings held by
a
community. Thus, to use his
example, where
a
majority strongly object to and wish to suppress
a
religious
or
sexual activity practised by
a
minority which causes no social harm, the
utilitarian by [sleeking the greatest satisfaction of desire may, then, justify
harsh repressive measures against actions that cause no social injury.” Only
if he can show that in the long run the red balance of advantage lies with
freedom can he avoid this conclusion, and in this he may not be successful.
Justice
as
fairness, however, gives no weight to these strong feelings where
they are not founded upon the principle of justice and even
if
they are
to
be
taken into account, the
l1
satisfaction of these feelings has no value that can be
put in the scales against the claims of equal liberty” (p.
460).
One vital problem which does not receive the kind of extended treatment
in this book that might have been expected concerns the primacy
of
justice
as an ideal. Rawls gives priority to the maximisation of liberty and shows in
some detail the types of constitutional provision that would give effect to this
ideal, for example, democratic procedures, freedom
of
speech, provision for
a
loyal opposition and for other political liberties. The need for economic
progress is, however, under his priority system, not to be used
as
a
justifica-
tion for the denial of these liberties. But it can be convincingly argued not
only that liberty
is
of little consequence to
a
starving man, but also that in
many countries today economic progress
so
as to prevent starvation can only
be achieved by an immense national effort which will have to be undertaken
at
the expense of certain basic liberties, such
as
the “luxury” of opposition.
Rawls recognises this and accepts that the basic equal liberties will have to
give way until
a
certain level of prosperity is achieved.
(See
pp.
247
and
b42.)
However, he does not develop
this.
He merely states that once material
conditions are
so
improved that it would be rational for a person in the
original position to accept the full concept
of
justice
as
fairness, then the
unequal liberties are no longer acceptable. The problem
is
that today’s
luxuries have
a
tendency to become tomorrow’s necessities, especially in an
era
of developing technology and exploding population. While it may be clear
that it
is
not worth sacrificing equal liberty in order to provide televisions for
all,
it
is not clear how “necessary” to
a
country’s survival are expensive
nuclear reactors, irrigation schemes, urban renewal schemes
or
technical educa-
tion. Even where
it
is agreed that the basic necessities have been achieved
it
might still be true that the introduction of equal liberty would undermine that
progress and the country decline again into poverty.
Perhaps it is unfair to ask a philosopher to answer such questions.
So
often the problem with philosophy is not that it provides no answers to the
problems it poses, but that the problems
it
poses are not those that actually
bother the practical man of affairs. A similar problem arises in relation to the
discussion of civil disobedience. Rawls considers that in
a
“nearly
just”
society conscientious disobedience to the law
is
only justiflable where there
is a
serious
infringement of the first principle of justice which demands equal
liberty
or
where there are blatant infringements of the principle of equality
of opportunity. Presumably more generous criteria would apply where
a
society was not “nearly just.” Rawls gives no guidance, however, as to
what kind of criteria would then apply nor how to ascertain whether
or
not
a
society is “nearly just,” though
it
appears from
his
other writings that he
feels that American style democracy produces such
a
society. However, it is
doubtful if the American Negro
or
Indian would share this view. We are
therefore left with no guidance
for
the resolution of the problem most likely
to cause controversy.
The basis of Rawls’ theory consists of the rational decisions
a
man would
make in the original position.
It
has been objected that
a
man might, quite
rationally, reject equality and choose to gamble.
He
might give up the
VOL.
36
(6)
4.
670
THE
MODERN
LAW
REVIEW
Vor..
3ti
certainty of an equal share in return for the chance
of
a
far
greater share,
providing the odds in favour of becoming one of the underprivileged were not
too great. The psychological need for the excitement
of
a
gamble is certainly
strong in many people. However, it is doubtful if such a choice would in fact
pass
the
test of rationality by which Rawls assesses his
own
solution.
He
examines the consequences that flow from the choice madc in the original
position and shows that not only do they
fit
together but that they also
provide
a
coherent account which is in accord with most
of
our
considered
judgrncnts on these matters.
He
rccognises, of course, the limitations of any
reasoned attempt to defend a moral theory. A moral principle cannot con-
vincingly be said to be self evident, nor can it be necessarily deduced from
a
non-moral fact. The rational justification
of
a
moral theory
is
essentially
a
process
of
showing that it hangs together, that the principles it embraces
support each other and the basic principle from which they are derived and
that it is supported by the relevant facts.
A
moral theory
mist
have some
starting point and that must be some consensus of opinion, the soundness of
which will be made more compelling if the consequences which flow from it
are also
“
comprehensive and compelling.”
Tliis
book
is
an original work
of
mature and wide scl~olarsliip.
It
has been
eagerly awaited and acclaimed by many philosophers
as
the most significant
contribution to the subject in this century. Certainly the ideas expounded in
it
should greatly enrich the thinking of anyone involved with issues of social
policy and social justice.
J.
LEVIX.
LEGAL PROBLEMS
AND
THE
CITIZEN.
By BRIAN ABEL-SMITH,
MICHAEL
ZANDER
AND
ROSALIND BROOKE. [London
:
Heine-
mann.
1978.
xiv
and
265
pp.
28-50.1
Tim
publication in 1967 of
Lawyers and the
Courts
written by Brian Aliel-
Smith and Robert Stevens
(‘I
assisted by
”
Rosalind Brooke) was
a
lnndmarlc
in the field
of
modern legal literature. Here was
a
book which attempted
virtually for the first time (on this kind
of
scale
at
least)
a
panoramic social
history of the development
of
modern legal institutions in Britain, and which
assessed frankly their present strengths and weaknesses. Whatever one thinks
about the merits and deficiencies
of
that particular work it was the
first
in what
has now become
a
substantial line of books and articles (in which items
written by the authors of
Legal
Probleitis
and
the
Citizen
feature prominently)
analysing in candid, and sometimes unflattering terms
the
machinery
of
justice and the
state
of the legal profession.
In many respects this book is in the same critical tradition, but its
scl~olarly, almost astringent, style and its minute attention
to
methodological
rigour make
it
clear nt once, even to those who resent
any
kind
of
academic
intrusion into the lawyer’s rather cloistered world, that this
at
least is no
mindless polemic.
The research which forms the basis of the book “arose
out
of thc
suspicion
of
the authors that there was
a
considerable amount of need
for
legal services that went unmet, and that unmet need was particularly likely
to be found among poorer people.” The study was carried out in the three
London boroughs which, in the 1961 Census, contained the highest proportion
of
people in the Registrar-Gencral’s occupational classes
IV
and
V-
Islington, Southwark and Tower Hamlets. The analysis is in two quite
separate but mutually complementary parts. The first consists of
a
review
of the facilities
for
legal advice available in the borouglis, not only in
solicitors’ offices and legal advice centres but also obtainable (mixed with
other kinds of advice) through such agencies as citizens’ advice bureaux,
trade unions, local government departments,
M.P.s,
courts, police, probation
Nov.
l!Wa
REVIEWS
67
1
officers and hospitals. An attempt is made to quantify the use niade of these
advisory services by different categories
of
person with
a
wide range of
different problems. The second part is based upon intensive interviewing of
a
random sample of about
1,600
people resident in the boroughs and is
directed
at
uncovering problems which might have given rise to
a
need for
legal advicc, and
at
estimating the quantity, the quality and the impact
of
the
advice actually obtained.
In the result
a
useful profile emerges of the unmet need for legal
services and of the workings of the various agencies in the boroughs. A picture
is carefully built
up
of three rather similar, though amorphous, communities
in which the amount of help available is by no means inconsiderable (and is
considerably used) but where
a
substantial residue of unmet necd remains.
In accident compensation, for example, the authors found
181
cases
of
personal injury serious enough to warrant time being taken off work, but in
only
78
cases did the victim get proper legal advice, and in one-third of the
cases no advice of any kind (even from
a
friend
or
relative) was taken.
And in cases where compensation was paid it seems that its adequacy (assessed
by an anonymous
I‘
expert
”)
correlates fairly convincingly with the propensity
to take advice. Many employers and public bodies (London Transport
features prominently here) seem a11 too willing to fob off the naive victim
of negligence with no more than
a
derisory
ox
gratiu
payment of
a
few
pounds.
Many other problem-areas yield similarly depressing,
if
unsurprising, data
:
matrimonial, employment and landlord and tenant problems of varying degrees
of gravity where advice might have helped; plenty of home-made wills;
too
many ill-informed consumers letting themselves be fobbed off with shoddy
goods and services; alarming cases of defendants to criminal proceedings
being given substantial sentences without being legally represenled. Con-
sistently it
is
the
poor
who come
off
worst and who are least well informed
about the nature, availability and potential cost of legal services, including
legal aid and advice.
The book contains fifty-three tables and three appendices.
It
is
a
model
of methodological rigour and the careful introspection of the authors combined
with
their
disarming candour in spelling out and wrestling with problems of
definition
(e.g.
of difficult concepts like
“
need
”
and
‘I
problem
”)
and
methodology makes criticism in these matters seem almost churlisli. Suffice
it
to
cite
just one
or
two instances where difficulties have arisen. In the
survey of agencies the methods of assessment are
a
bit patchy (some kinds
of agency were required to complete detailed research schedules while others
were merely looked
at
from the outside in
a
more
or
less haphaxard way).
Moreover, only
a
Afth of solicitors’ offices dispensing free and subsidised legal
advice actually completed the authors’ research schedules, and one
or
two
refused explicitly on the grounds that some of the authors’ previous work had
been unfairly critical of the legal profession. A response rate this low
seriously undermines the value of this part of the research.
The sample survey, though carefully constructed, rests heavily upon
fallible human recollection of events often some years past. Here and there
one finds apparent contradictions between the two arms
of
the study
:
the
agency survey reveals extensive cross-referral between one kind of agency and
another, yet the sample survey does not uncover much in the way of multiple
visits to different agencies (though whether this reflects systematic failure
of recollection
or
a
defect in the research design
is
not clear). The sample
itself
is
drawn from an out of date electoral register and
fails
to include
those no longer at their original addresses: this skews the results by
eliminating
a
mobile element of the population whose problems may differ
from those of the remainder of the sample.
In the end one is left with feelings of considerable respect rather than
of excitement: and in
so
far
as
this is a workmanlike exercise directed at
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MODERN
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VOL.
36
verifying
a
simple hypothesis then this is only to be expected. The format of
the study does not lend itself to dazzling conclusions. However, the decision
to concentrate exclusively upon three rather similar areas was, one feels,
a
mistake since
so
much would have been gained by
a
comparison even with just
one
of
the more prosperous London boroughs.
Does this book perhaps mark the difierence between high quality legal
journalism and proper
”
scholarship? One cannot help feeling
that,
in
part, it illustrates
a
law of diminishing returns in the research field. Three
experienced directors,
$25,000
from the Ford Foundation, and
a
strong
supporting cast, have produced
a
very useful book with
a
solid foundation
but little immediate impact. One man and his dog concentrating limited
resources upon something less ambitious and with
a
more immediate pay-off
can
so
often achieve
proportionately
very much more (some of Zander’s own
work, published in the
C+ncnol
Law Review
and elsewhere, uncovering facts
about, for example, the inconsistent working
of
the bail system and the scandal
of unrepresented defendants in criminal proceedings, is
a
good illustration).
The fairest answer is that both kinds of work are needed if socio-legal policy
is
to develop on
a
broad and systematic as well as an
ad
hoc
basis.
Legal
Problems
and
the
Citizen
is
a
valuable and scholarly addition to the small
but ever-growing body of literature in this important field.
GAVIN DREwnr.
SOCIAL NEEDS
AND
LEGAL ACTION.
By
PAULINE
MORRIS, RICHARD
WHITE
AND
PHILIP
LEWIS [London: Martin Robinson.
1978.
Wpp.
EO.95
paperback.]
THIS
book, one
of
the first in the Law in Society series, sets out to raise
the “superficial and myopic level” of debate which in the editors’ view
Is
prevalent in the discussion of the provision of legal services in this country.
Richard White, in by far the most deeply thought out and argued of these
essays, sets out three models of society and the role of law in each. He goes
on to discuss what contribution lawyers can make both in the representation of
group interests and in the control of discretion by numerous statutory social
welfare agencies, which
is
a
critical area for social justice in this country.
Pauline Morris questions whether lawyers should be in the forefront of
research and innovation in legal services. She argues that
a
sociological
perspective would be valuable since the role
of
a
sociologist centres round
“
disinterested and systematic quest for knowledge,” while other social
scientists’ skills are merely technical ones
(p.
48)
as they lack
a
“sociological
perspective, based upon
a
pre-existing body of theory, and allowing
for
empirical studies which would have relevance for the development of further
theory.” It
is
not precisely indicated why further theory is important, indeed
that appears to be an ethical choice on the part of the sociologist researcher.
Richard White raises the vital issue of whether present and future research
will avoid
‘I
the danger that legal services research might, like certain other
forms of social inquiry in the recent past, become
a
parasite on the underdogs
it
seeks to study.” Value-free research, without biases on the part of
researchers, would seem
to
be
a
will-o’-the-wisp. In the last essay Philip
Lewis criticises the equality of access argument which is one of the main
grounds put forward for the improvement of legal services. Again, like
Pauline Morris, he concludes
that
further research is needed.
Dr.
Morris
disapproves of the rush to set
up
law centres because these may prevent more
dynamic changes in legal services. This may be true but while we wait for
research, the recruitment, education and training of lawyers might change
possibly to the detriment of the operation of law in society. It is particularly
disappointing that neither Dr. Morris nor Philip
Lewis
attempts any ncw
Nov.
1973
REVIEWS
678
exposition
of
tlie role
of
lawyers in society, yet underlying their essays are
certain assumptions about the use and current outlook of
tlie
legal profession.
These essays should be read by anyone interested
in
legal services, legal
education and the role of the legal Profession. Richard White's essay in
particular challenges the idea that research
is
necessary, while Philip Lewis
challenges the equality argument.
It
would be dangerous to assume, as
is
pointed out by Richard White and Pauline Morris, that lawyers can remedy
in any dramatic fashion some of the grosser inequalities
in
society.
ROSALIND
BROOKE
JUSTICE
IN
SOUTH
AFRICA.
By
ALBIE
SACHS.
[London: Chatto,
Heinemann
for
Sussex
University Press.
1978. 282
pp.
€8.25
net.]
TIIE
role of the courts in South Africa has greatly interested common lawyers
for years. Practitioners have attended large treason trials, and academics
have written
at
length on the leading constitutional cases. Nobody has
previously surveyed the entire machinery
of
judicial administration there.
Mr.
Sachs now provides
a
detailed examination which takes us right back to the
Dutch Settlement at the Cape in the seventeenth century.
His
method is to
trace chronologically the activities of judges and advocates through each phase
of South African history. In this way we are equipped better than ever
before to appraise what most of
us
have previously concentrated on: the
South African courts in the last twenty years. This scholarly account of three
hundred years of judicial administration
is
most interesting
:
a
happy blend
of legal analysis, political acumen and judicial anecdote derived from
a
close
examination of documented sources. Particularly revealing is how the Boer
War led to
a
split between English and Afrikaner judges.
The second half of the book examines at length the modern South African
judicial machine. The author has been
so
personally involved (not every
author languishes in prison while one of the leading cases, his own, is decided
in the ultimate court of appeal) that one might have expected tendentious
treatment of some parts of the story. On the contrary, he
is
commendably
objective in his examination of what
is
for him the main issue
:
whether the
judiciary has been unduly subservient to the executive. He
is
right in saying
that trumpeting the
"
Rule of Law" obscures the problem. Obviously, he
would have preferred the judges to have leaned over backwards to interpret
statutes in favour of individual freedom. Although he contrasts their work
with that of the US. Supreme Court he does not condemn them out of hand.
Given the kind of relationship between Parliament and the courts which we
have in Britain, would even
a
Lord Atkin have been able to neutralise the
legislative restrictions on liberty?
I
certainly do not believe that our
own
courts today would be much more effective in this respect than the South
African ones. More damning and less publicised
is
the author's survey of the
magistrates and lower courts generally. He marshals formidable statistical
data in support of his view that especially in sentencing there
is
racial
discrimination at that level.
This books shows that Mr. Sachs
is
yet another addition to that dis-
tinguished list of lawyers who, when compelled to leave their own country for
political reasons, have
so
enriched academic legal scholarship in the United
Kingdom.
HmnY
S?*REET.
074
THE
MODERN
LAW
REVIEW
VOL.
3ti
SWEET
&
MAXWELL’S
EUROPEAN
COMMUNITY
TREATIES.
Edited
by
SWEET
&
MAXWELL’S
LEGAL
EDITORIAL
STAFF.
[London
:
Sweet
&
Maxwell.
1972.
xii
and
384
pp.
€2-85
(paperback).]
SCIIOIAIIS interested in the activities of the European Community have until
now had difficulty ,in finding
a
handy and autlioritative collection of the texts
regulating the legal status of this supranational regional organisation. With
the entry of the United Kingdom into the Community
at
the beginning
of
1973
it became even more urgent that llnglish lawyers, academics and students
should be able
to
lay their liands fairly readily
on
such material. The Editorial
Staff
of
Sweet
&
Maxwell are therefore
to
be congratulated on having brought
out, in time for the accession, their edition of the
European Community
Treaties.
It
will bc recalled that members
of
the House of Commons were somewhat
tnlcen aback wheii they discovered the volume of the legal documentation that
was involved in membership, and it
is
a
pleasure to note that the really essen-
tial inaterial can be found in
a
paperback
of
a
little more than
300
pagcs. The
compilation is chronological, beginning with, as amended, the European Coal
and Steel Community Treaty (the Schuman Plan), together with its Protocols,
one of which constituted the Statute of the Court, followed by the Treaties
relating to the European Economic Community and the Atomic Energy Com-
munity, together with the Amending Treaties, of which perhaps the most
important was until recently that establishing the single Council and Cornmis-
sion of the European Communities. In addition
to
these there is the Treaty
of Accession in its original form implying that Norway
too
became
a
member,
and, finally, the European Communities Act, printed after the Third Reading
in thc Lords, but before the royal approval.
l‘liis
volume will probably prove the standby for all those professionally
involved in Conirnunity matters,
as
well as
a
vital source book for students
of
intcrnntional organisation. While thanlting Sweet
&
Maxwell for having made
it available
so
quickly, perhaps one may express the hope that they will follow
their own precedent in the future with regard to any amending instruments,
and perhaps even in respect
of
organisations and international developments
with wliirli the English profession may not be quite
so
intimately concerned.
I,.
C.
Gnc~x.
A
SOURCE-BOOK
ON
FRENCH
LAW.
SYSTE?vl-METHOD---oUTLINES
OF
CONTRACT.
By
OTTO
KAHN-FREUND,
CLAUDINE
L~vY,
BERNARD
RUDDEN.
[Oxford:
Clarendon
Press.
1973.
580
pp.
As
the authors explain very clearly in the introduction, comparative law
is
ii
method, a discipline whose benefit is the “insight it affords
into
the student’s
o\vn system.” Such
n
method
is
selective on two levels. First,
a
foreign sys-
tem must be chosen. The reasons for choosing the French one
are
“to
lie
found mainly in the structure
of
the country’s legal sources,” which
is
11
strange compromise between codes and ease law. Sccondly, within this
sys-
tem,
ii
selection,
“
often [consisting of] agonizing choices,” must he made.
“
Similarities concealed behind apparent differences
’’
and
‘‘
differences hidden
iu solutions which,
at
first sight, look the same in both countries” must be
shown. Emphasis is put on, and choices are always made
of,
topics and solu-
tions which niiglit seem odd to
a
reader trained in common law.
In the first part, devoted
to
sources and methods, the Brst chapter deals
with “Major Sources
of
Law” and contains very well selected extracts
011
“
la loi,”
“
la
jurispriidence
”
(whose autlro~ty is
a
real problem for common
lawyers)
ant1
“
doctrine
et
principes generaux.” Strangely cnough,
there
is
€3.75.1
Nov.
1973
REVIEWS
675
no
mention of ciistom, about which howcvcr Carbonnier wrotc
:
‘I
Custom is
actually an irnportant source of Droit Civil.” Codification
as
a
phenomenon
distinct from legislation deserves more specific developments than the ones
put under the heading of “The function of
a
Code,” notwithstanding that
these developmcnts are very interesting. The second chapter describes the
various categories of law, and the third one deals with the courts and legal
professions. The latest reforms on procedure
and
legal professions could not
be fitted into the text, but extracts
of
the
Id
of December
31, 1971,
are
published in
a11
appendix.
The second part
of
the
book
is
on contract, and
is
intended
“to
afford the
reader who has mastered the institutional striictures described in Part
I,
a
glimpse of the law
at
work.”
It
must be pointed out,
as
Professor Tunc did
in the preface, that the field of contract
is
ideal “to illustrate without going
to the extreme example of the law of tort,
the
interplay of the various sources
of
law.”
Pour
chapters corresponding to four articles of the Code Civil form
this second
part.
The first chapter,
“
The essentials of Contract ”-Code Civil
-Article
1108,
explains offer and acceptance,
I‘
vices du consentement,”
“lesion,” but
as
mentioned in
a
footnote there are no materials on capacity to
contract. Despite
its
title, ‘lobjet and cause,” no documents
or
cases are
given on the qiiestion
of
‘I
objet du contrat
”
in the last section of this chapter.
The other chapters are “The effect of
a
Contract
inter pares”
Article
1137;
‘I
The Effect of a contract on third parties
”
Article
1165,
and
“
Breach
”
Article
1187.
The biggest part of this book is made of extracts from legislation, decided
cases, commentaries on these cases written by well-known lawyers, and from
textbooks and treatises.
All
these extracts are given in French
to
allow the
reader
‘I
to grasp the style of French law.” The connecting contributions have
been restricted to the minimum. Sometimes they may be too restricted, as
1s
the case in the section on
“
ImprCvision” (pp.
395
to
4015)
in which an explana-
tion of the reasuns for the difference of view between Cour de Cassation and
Conseil d’Etat would be useful. These contributions, which in some parts take
the
form
of very accurate questions, often make reference to “English
parallels
or
contrasts.” The best illustration of this method and
of
its
effiuiency can
be
found in the section on “Stipulation pour autrui” (pp.
420-
This book
is
indeed
a
wonderful “tool for students and teachers of com-
parative law,” but only for those with
a
very good knowledge of the French
language. It is also necessary,
as
the authors point
out,
to use the book in
connection with French textbooks and with the Code Civil
at
one’s elbow.
These may seem large qualifications to one’s praise of the book, but com-
pnrative law is
a
complex and detailed subject.
4*40).
PxEnnE
LAvrnomE.
DROIT
CIVIL.
By
B.
STARCK. [Paris
:
Librairies Techniques.
1972.
Vol.
1
:
INTRODIJCTION.
216
pp.
F.Frs.
26.50.
Vol.
2:
OBLIGA-
TIONS.
819
pp.
F.Frs.
82.00.1
‘1’liEs.e
two volumes are the
first
of
a
treatise which will covcr the whole of
French civil law. Such treatha
are
numerous in the French legal academic
world, and most
of
them, like this one, have been written principally for law
students. TIint explarins not only the plan, which follows the syllabus of the
“licence,” but
also
its real pedagogical qualities. Professor Starck writes in
the foreword “the difficulty of
a
subject
is
a matter of pedagogy.” This
is
the reason why he never
uses
a
legal concept without explaining it-giving
definitions is the main purpose of the
first
volumt+-Introduction-and
he
employs
a
great number
of
examples, often chosen from decided cases. On
676
THE MODERN LAW REVIEW
VOL.
3ti
many issues Professor Starck has his
own
view, but he prcsents it usually
only after
a
critical study of other theories.
The first volume-Introduction,
216
pages, does not contain jurisprudential
or
long historical developments but clear detinitions and descriptions of basic
legal mechanisms such
as
the rule
of
law, sources of law, classification of
rights and of various parts of French law.
English lawyers
will
be interested in the study
(pp.
61-57)
on the author-
ity of decided cases-in French,
(‘
la
jurisprudence.” Professor Starck, in
explaining patrimony, sharply attacks the principle that
a
person can only
possess one patrimony, and explains the reasons he sees for dropping such
a
principle from thc French legal system.
Uncommon in such an Introduction, but very useful, is the exhaustive
study of the legal aspect of money
(pp.
123-130).
Unhappily, the part
referring to the organisabion of the courts and the legal professions is very
short, and, his book being published in early
1972,
does not take into account
the latest reforms of procedure and the professions, respectively brought about
by
a
I‘
Dtcret
”
of July
20,
1972,
and in the main by
a
Loi
”
of December
31,
1971,
and
a
“
DCcret
”
of September
13, 1972.
The second volume-Obligations,
819
pages, considers Obligations according
to their sources, and
as
property. The latter forms the second and less
important part
of
the volunie and is very clear and mainly descriptive; the
matter, being purely technical, includes transfer
of
claim and extinction of
obligations. The first part, dealing with sources of obligations covers torts
and contract. An appendix
(pp.
653-669)
in th.is first
part
is
devoted to
contractual liability-“ responsabilitt contractuelle.”
On torts Professor Starck is fasoinating; for him
a
reform of the current
system is unavoidable, and he proposes his own theory called
“
thCorie de la
garantie” (pp.
3444).
Instead
of
taking the concept
of
fault
or
of risk
as
the basis of liability, Professor Starck studies the problem from the point
of view of the victim, and
proposes
to use the kind of damage
as
the criterion.
Torts become then
a
conflict of rights. Corporal damage (for physical pain
and mutilation) and material daniage (“affecting the victim’s
rights
of pro-
perty”) wonld always make the defendant liable, even
if
he
is
not at fnult.
However, oivil liability being still a kind of sanction, the fault of the defendant
could increase the
rate
of damages. Purely economic
or
moral damage would
make the defendant liable only if lie committed
a
fault. In
l9G6
the
Code
Civil of Madagascar embodied
a
broad outline of this theory in its Articles
140-177.
The treatment
of
contract
is
exhaustive but more classicnl. He inakcs a
very interesting proposal for the classification of contracts based on the object
of the obligation, which, when conibined with one
of
the old classifications,
lends to
a
very useful result
(pp.
627-643).
In short
it
is
a
very good textbook, whose qualities
of
clcarness and
pedagogy will help students, and whose realist theoniw will please all believing
that law is not an esoteric science. PmnnE 1,Avrnon-E.
HUMAN
RIGHTS
AND
EUROPE:
A
Study
of
the Machinery
of
Human
Rights Protection
of
the Council
of
Europe.
By
RALPH BEDDARD
[London: Sweet and Maxwell.
1978.
xiii and
104
pp.
Bound
E1.80.
Paper
95p.l
THIS
is
one
of
the first titles in the Modern Legal Studies series of short
monographs for use primarily by students. As the sub-title indicates, this
book deals only with the machinery
of
the European Convention on Human
Rights and as such will be of only limited use. That use is further reduced by
the inexcusable absence of
a
bibliography
or
indeed any proper refcrcnccs
or
Nov.
1978
REVIEW
9
677
citations, with the exception of the actual cases. There are no suggestions for
further reading, despite
a
number of relevant works available by Weil,
Robertson, Morrison and Fawcett, yet this is clearly
a
book intended for
students who arc being introduced to a new topic.
Nor
is the Convention itself
printed in an appendix.
Dr.
Beddard makes the complaint
himself in the Preface. He has managed to confine his text to the
100
pages
given to him by the editors, but
at
great cost to the book. The writing
is
so
tight in places that the discussion is obscured,
a
defect all the more serious
in the absence of any reference to further reading.
It
is obvious to the reader that
Dr.
Beddard has
a
profound knowledge of
this subject, but it is equally obvious that the limit on space brings into
question the wisdom of having written this book in this series.
Dr.
Beddard,
after all, has been teaching human rights to undergraduates
at
Southampton
more thoroughly than is the case almost anywhere else and he
is
right to want
to popularise the European Convention, especially
as
the
right of individual
petition now makes this something which practising lawyers can no longer
ignore (although the right of individual petition comes up for renewal in
January
1974,
which curiously
is
not mentioned in the text).
It
is
striking
how quickly
our
law schools have responded to membership of the EEC
with new courses and amended syllabuses, while the European Convention
is
cursorily examined in Public International Law courses and is lucky even to
merit
a
mention in
a
Constitutional Law course, and this despite the fact that
more cases
are
pending against the United Kingdom than any other Member
State.
Dr.
Beddard cogently exposes the weaknesses in the laborious procedures
of the Convention. This critique
is
very useful, but to concentrate exclusively
on the machinery
is
unlikely to stimulate the students’ interest.
France,
at
long last, is about
to ratify the Convention; and in the
AZm
and
Khan
case, friendly settlement
has apparently failed.
Whether
a
book like this solely on the Convention’s machinery should have
been written for students remains debatable. Some teachers may indeed
welcome it, but the author himself sees the main task as “estimating the
value of the Convention and its machinery in the protection
of
the rights and
freedom of the individual European citizen”
(p.
60),
which this book only
partly does.
Clearly, space has been the problem.
In places, the book is already out of date.
GRAHAM
ZELLICIC.
LABOUR LAW
IN
AUSTRALIA.
By
E.
I.
SYKES
AND
H.
J.
GLASBEEK
[Sydney, New South Wales: Butterworth
&
Co.
(Australia)
Ltd.
1972.
lii and
771
pp. (including index)
fl1.60
(case),
€9.60
(limp).]
THE
hazards of
a
compendium of law of seven major jurisdictions in the
shifting field of labour relations are illustrated by
this
work. Already
segments are outdated by new South Australian and Commonwealth statutes.
(This does not excuse reference, p.
688,
to Part IV of the New South Wales
Act, repealed in
1969.)
A
problem of balance, not successfully resolved, is
inevitable. Over half of Book One is devoted to workers’ compensation,
factories legislation being dismissed in one paragraph. There would be value,
at
least, in
a
study of the varied provisions for guarding of machinery. Book
Two does less than justice to the importance of the wages boards and
arbitration tribunals of the States, which are confined to forty-two pages.
Cohesiveness suffers from the divorce of convenience, not consistently
maintained, between
“
individual
’I
and
“
collective” aspects. The book abounds
678
THE
MODERN
LAW
REVIEW
1701,.
30’
with misprints. Some, like
“
injury” for
“
inquiry”
(p.
333), matter less;
othcrs,
6.9.
“39” for
“32”
(p.
682,
fn.
MO),
mattcr more. A line has been
dropped bctwcen
pp.
744
and
786.
More positively, Book One
is
written with the authority that the Australian
student expects
of
Professor Sykes, thougli “interference wit11 contractual
relations
”
might have been more closely tied to local experience through sucli
cases as Sid
Ross
Agency Ply.
Ltd.
v.
Actors
and
Announcers
Equity
Ausociation
of
Austrdia
[1970]
2
N.S.W.R.
47;
[1971]
N.S.W.R.
760,
and it
is
strange that the leading Australian case on breach of statutory duty,
O’Connor
v.
IS.
P.
13ray
Ltrl.
(1937) 66 C.L.R.
464,
is cited only in another
conncxion.
Book Two contains
a
sustained polemic against tlie interpretation by the
IIigli Court of Constitution,
s.
61
(xxxv), illustrating
a
falling away from the
heady expansivcncss of Isaacs and Rich
JJ.
to the regressive narrowness of
Pitfield
v.
IJmnki
(1970)
44
A.L.J.R.
391
(a
firefighter is not employed in
:in
“
industry
”).
GCoFPnEY
H.
SonnEr.1,.
TIIE
AUSTRALIAN
CRIMINAL
JUSTICE SYSTEM.
By
DUNCAN
CHAPPELL
and PAUL WILSON. [London: Butterworths.
1972.
xvi and
854
pp.
(inc.
index). Casebound
211.80.
Paperback
€960.1
‘1’1x1s
Reader
is
a
symptom of the birth in Australia of criniinology
as
an
organiscd academic enterprise.
It
assenibles
a
considerable proportion
of
all
recently published Australian criminological material,
as
well
as
material
produced espedally for the volume.
It
is not confined
to
the criminal justice
system, but includes much material about the state
of
crime in Austra1,ia-in
connection with which it is amusing
to
be reminded of how classifications
used in official criminal statiestics distinguish between
“
natural
”
and
‘‘
un-
natural” sex offences. As
a
whole the anthology accurately reflects the
predominantly legal cast
of
criminology
in
Australia
at
present. Although
reservations
are
expressed about the shortcomings of the Legal
or
Official
:cpproach to the subject, they seem to be
so
more for form’s sake than from
any intention that they should be taken seriously. Some
of
the inferences
made from statistical data are questionable, and the statistical manipulations
in the
New
South
Wales
Zteports
on the effect of that state’s Breathaliser Law
:ire hard to undcrstand. Proof-reading errors occur,
as
they are bound to in
a
book of this size and kind, hut one which is especially confusing (for
I
take
it to be
a
proof-reading
error)
occurs in Biles’ essay on Crime
in
Victoria
where the titles for graphs 7 and 10 have been interchanged:
as
the titles
stand
at
the moment
it
appears from
a
comparison of tables
7
and
8
that the
popu1:~tion
of
Victol.ia has bccn decreasing since
1968.
Despite the youth of
criminology in Australia several studies in tI&s book have the feel of
‘‘
classics
”
about them already
:
Kraus’
‘(
Probation
as
‘
Learning
’
Experience in Seven
Groups
of Male Juvenile Delinquents”
is
deservedly picked out by the editors
as
a
really original piece
of
research, and the Census of the Victorian Prison
Population is worthy
of
notice as
a
type of exercise which
is
frequently talked
about but seldom done.
Some
of
the legal articles in the book are already
out
of
date in places, and unwisely the editors have not considered it part
of
their task to provide any
sort
of annotation
or
commentary
to
indicate where
this is
so.
Perhaps this
is
something they might put right should enough
empirical research be published in the near future to make
a
second edition
of the book worth while. In the meantime
it
is
the only work generally avail-
able which comes anywhere near being
a
comprehensive Australian text on
criminology, although its coverage
of
penal systems
is
grossly inadequate and,
‘ns
I
have suggested,
out
of
date;
as
such
it obviously has
a
claim
to
be
essen-
tial material for courses in criminology in Australia, although
I
could under-
Nov.
1973
REVIEWS
679
stand teachers who did not use it as such, especially i.n view of its high price.
However, someone wanting to d,iscover the state of criminology in Australia
could
do
no better than to read it.
%EPlIEN
WIIITE.
THE NIGERIAN
PENAL
SYPTEM.
By
ALAN
MILNER.
Law
in
Africa,
Number
82.
[London
:
Sweet
QE
Maxwell.
1972.
xl and
446
pp.
(inc. index).
E4.50.1
ilrmrouoir
Dr.
Milner’s survey of the Nigerian Penal System is similar in form
to those of the English System by Hall-Williams and McClean and Wood, ,it
is
far more exploratory. The English surveys are in part exercises in stock-taking
of the considerable amount
of
relevant literature available. Official Criminal
Statistics in Nigeria,
for
the years
for
which they are available, are less valid
and less reliable than
ours;
and research into the operation and effectiveness
of the penal system and into the causes of crime is virtually non-existent.
Dr.
Milner has made good some
of
these deficiencies by sampling the sentences
imposed by the courts and by visiting penal institutions extensively.
His
book
contains
a
very interesting account of how customary procedures for settling
disputes have been allowed to exist alongside an essentially English penal
sys-
tem
:
and it
is
an amusing irony that the design of the old Nigerian prisons,
built by colonial administrators anxious to spend
“
as little money as possible
on prisoners for whose way nnd standard of life (they) did not have
a
very
high regard” are closer than our Victorian prisons to the prison designs
required by present-day penologists.
Unfortunately
Dr.
Milner does not always explain his methods fully.
For
example, he makes several statements about the attitudes of prisoners to the
penal system, but nowhere does he indicate the basis for these statements.
In
a
novel survey, as tightly packed with original research
as
his book is, this is
perhaps not
a
serious defect, and in his final chapter of suggestions Dr. Milner
advocates research to test many of his impressions.
For
administrators and
researchers, whether interested in the Nigerian Penal System in its own right
or
for comparative purposes, this will be
a
most useful book of reference.
STePIlBN
~f‘l1ITE.
THE LEGAL SYSTEM
OF
LESOTHO.
By
VERNON V.
PALMER
AND
SEBASTIAN
M.
POULTER.
(The Legal Systems of Africa Series).
[Charlottesville,
Virginia
:
The Mitchie
Co.
1972.
574
pp.
E8.40.
J
IT
is
hard to write
a
good general work about
a
national legal system; witness
some of the attempts upon
our
own. The task is
all
the more difficult where,
as is the case with Lesotho, an exotic system assembled from both civil law
and common law components has been superimposed upon an indigenous one.
But Messrs. Palmer and Poulter, both
of
whom used to teach at the University
of Botswana, Lesotho and Swaziland, have certainly succeeded. Their success
is partly due to the fact that they have firmly identified the audience for
which their book
is
intended and written
it
accordingly. Having set out to
write
a
students’ text, material for inclusion has been wisely selected,
explanation is lucid and full, and argument is encouraged (for example, by
their original approach towards the hoary old problems surrounding the.
reception of Roman Dutch law into Lesotho). They also entirely avoid
a
parochial flavour by placing the discussion of local features in
a
comparative
perspective. If any criticism can be made,
it
must he that there is sometimes
a lack of balance. Obviously, the exact “mix” of any book will and should
680
THE
MODERN
LAW
REVIEW
VOL.
36
depend upon tlie particular interests of the author, but liere almost eccentric
weight is given to some topics whereas others, equally important, are treated
very briefly. For example, well over one hundred pages
are
devoted to heavy
academic treatment of provisions dealing with the protection of fundamental
liuman rights, while
a
mere
fourteen
are spent upon the courts in which the
traditional Sotlio law is primarily administered. These agencies deal with
over
90
per
cent. of the judicial business in Lesotho and are the only courts
before which most members of the population are likely to appear. What
happens in them is
at
least
as
important from the point of view
of
justice in
Lesotho as the paper
rules
in the constitution (which happens to be suspended
at
the moment anyway). On
a
much more trivial level, the publishers should
have taken better care of such matters
as
ease citation and lists of abbrevia-
tions (it is disturbing to learn that there is
a
South
Waler
Africa Division
of
the Supreme Court of South Africa).
SINON
ROBERTS.
INTERNATIONALE
ZUSTANDIOKEIT.
Entwurf eines Systems von Zus-
tandigkeitsinteressen um zwischenstaatlichen Privatverfahrens-
recht aufgrund rechtshistorischer, rechtsvergleichender und
rechtspolitischer Betrachtungen. By
JOCHEN
SCIIR~DER, Wis-
senschaftliche Abhandlungen der Arbeitsgemeinschaft
fur
For-
schung de Landes Nordrhein-Westfalen [vol. 47.
852
pp.].
THE
question of the proper delimitation of international jurisdiction in civil
proceedings has been discussed
at
length by leading experts ppior to the pre-
paration
of
the Convention on Reciprocal Enforcement of Judgments submitted
by the Hague Conference as well
as
by those responsible for the Convention
on the same topic now in the somewhat cumbrous course of ratification by the
member states
of
the EEC. One may therefore well be permitted
to
think
that
tlie problem for the time being
at
least
is
of
a
somewhat academic interest.
But if this is right, tlie author of the present work has succeeded in demon-
strating that the interest-even if
at
present merely academic-is very real
and, in fact, very attractive, The truly enormous mass of historical and com-
parative material and the no less astounding depth
of
the deontological con-
siderations which lie
has
spreud out before his readers
sIio\~s
the amazing extent
to
whicli this subject-matter is still capable-notwitlistanding all tlie attention
devoted to it in the past-of yielding rich frwit to those who are willing
to
reconsider what they have accepted for long
to
be axiomatic truth.
The author has happily refrained from following the example of those who
feel that comparative law requires taking into account
as
many legal systems
as
one’s linguistic abilities permit. Rightly he
has
confined his attention to the
most significant and important systems of the Western world. These on their
part are treated by him with
a
thoroughness that raises the work
to
the rank
of
a
most vnluable monograph on international jurisdiction on each
of
tlie seven
systems treated in his book,
i.6.
those
of
England,
tlie
U.S.A.,
Germany,
Switzerland, Austria, France and Italy. In this country
at
least there
is
no
contemporary work treating the problems
of
international jurisdiction under
English law
de
lege
Zata
with anything like the painstaking care, which the
author has devoted to it-not
to
speak
of
the most interesting historical
material and the profound discussion
de
Zege
ferenda
both of which constitute
perhaps tlie most interesting
parts
of
his
work.
One would have wished that the author’s conclusions would reach
a
large
public, all the more
so
as
he rightly finds cause for
a
great deal of dissatis-
faction with the present position
of
the
leg08
latae.
This is all the more
so
as
lie
writes with an attractive style and often amuses his readers by surprising
turns
of
phrase
or
apt witticisms and is never vague, ambiguous
or
unclear.
Nov.
1978
REVIEWS
681
But it must be feared
that
this
excellent work
will
not have anything like
the
effect it thoroughly deserves. Quite apart from the fact that
its
somewhat
inordinate length and the existence of two Conventions on the topic-one in the
course
of ratification and the other proposed by the
Hague
Conference-will
deter many readers, this all too large work has no subject index and no index
of
statutes and cases referred
to.
The systematic index is quite insufficient
to
enable even the most meticulous render to recall more than
the
general trend
of
the author’s thought, but never to find exactly the spot where an individual
problem is treated. That
a
most valuable work showing such
a
wlidth
and
depth
of
learning should have gone out without a proper index and will there
fore remain practically inaccessible
to
busy practitioners can only be noted
with
deep regret.
E.
J.
C~HN.
LEAGUE
OF
NATIONS
COMMITTEE
OF
EXPERTS
FOR
THE
PROGRESSIVE
CODIFICATION
OF
INTERNATIONAL
LAW, 1925-1928. Edited
by
SIIABTAI
ROSENNE.
[Dobbs
Ferry,
N.Y.
:
Oceans Publications.
1972.
2
vols.
$50.00.1
‘hem
seems to have been
a
tendency among some commentators
on
interna-
tional law to regard the work of the International Law Commission of the United
Nations as if
it
were the product of the first major attempt to institutionalise
the codification of international law. While they may pay tribute to the work
of David Dudley Reld and other individual codifiers, and even acknowledge
the value of the Harvard Research projects, they seem
to
overlook the fact
that the League of Nations had
a
Cmittee
of
Ezpertr
for
the
Progressive
Codification
of
Internatiomad
Lam,
and
it
was on the basis of this Committee’s
researches and analyses that the League’s Codification Conferences sought to
build. Such commentators should not be blamed too harshly, for much
of
the
Committee’s activities was only available on
a
restricted circulation basis. Dr.
Rosenne, for many years
a
member of the International Law Commission, is to
be thanked, therefore, for having edited tlie records of the League’s Committee.
The first volume contains the Minutes of the four working sessions, when the
Committee was concerned with topics like extradition, nationality, the extent of
territorial waters, diplomatic grlvileges, treaties,
state
responsibility, exploita-
tion of the resources of the sea, and the like, on many
of
which agreement
was not to be reached until the International Law Commission took over, while
others still await codification in acceptable drafts. While this volume
is
useful
for its debates, the student may well find tlie second volume, which contains the
draft reports, the questionnaires sent out by the Committee, together with
the replies thereto by governments, far more useful. It
is
fascinating to see
the type of argument put forward to explain why
a
particular government did
not favour a particular enunciation of the law, and to note both how that same
government has maintained its position over the years,
or,
even more fasoinat-
ing, how
it
has switched from support for
a
particular proposiiion to
determined opposition thereto.
The true value of this compilation will only be appreciated when compared
with the Yearbooks of the International Law Commission, although Dr.
Rosenne has, in his Introduction, already pointed the way to such comparisons
and to the continuity between the League body and that
of
the United Nations
-after all Brierly was
a
memher
of
both, and
it
is
interesting to note that the
Chairman of the Committee of Experts carried
a
name that is well known in
the international civil
service-Hammarskjold-while
both bodies regarded their
flrst
task
as
being to list the topics which were due for codification, and the
contents are closely similar.
It
is
also
fascinating to see how, even then,
nationalism played its role, with the Argentine member protesting that not
enough attention was being paid to the work
of
Latin American jurists and
682
THE
MODERN
LAW
REVIEW
VoL.
36
the Secretary-General of the League anxious to have
a
Muslim nicniber, even
though this really meant two British lawyers sitting on the Committee.
It
is
also good to be reminded that, as today, problems arose
in
connection with
newly created states, for
as
the Italian jurist Diena pointed out “these new
States were entirely free to accept
or
refuse rules which resulted from intcr-
national conventions. But those which fell within the province
of
general
international law based on custom appeared to be valid alike for old and new
States”
(p.
xliii). It
is
equally interesting to note the comment
of
the Polish
representative in
1925
that
the experts should take into account the “evolu-
tionary tendencies in international relations and the influence of the
jw
nnsciturzum-unwritten law
. . .
[although] the Committee must be cautious in
propounding immutable principles and making declarations
in
regard to
fundamental rights
”
(p.
18).
On the other hand, while the International Law Commission regarded one
of its first tasks
as
being to codify the Nuremberg I’rinciples the Committee
of
Experts
was
convinced that problems
of
the law of war and of neutrality
were
“
dangerous
”
from the point
of
view of codification.
But
these are not
the only fields of international
law
which touch political sensitivities. Even in
the
1920s
there was strong opposition to introducing
a
clause
for
conipulsory
judicial settlement into
all
treaties (vol.
1,
pp.
179
et
seq.),
while Loder, thc
first President of the Permanent Court, in
a
remark which
is
still of importance,
“wondered if it were not impossible to expect satisfactory results without at
any rate the assent of the majority of the Great Powers”
(vol.
1,
p.
203).
AS
Dr.
Rosenne points out
in
his Introduction, one of the main “deficiencies in
the codification processes
of
the League of Nations
.
. .
was the undeniable
opposition of the leading Powers
. .
.,
at least during the critical formative
period when the Committee
of
Experts was functioning, to the very idea of
‘
codification
’
”
(p.
cii). While the great Powers might now have accommo-
dated themselves to the realisation that codification by the International Law
Commission has to be accepted, they seem no nearer to accqpting what their
experts produce than were their precursors.
As
a
record of
a
special activity
of
the League and
as
an estimation
of
the
significance of this activity in the history of codification and
as
an
example
and a warning to the United Nations and its
own
Commission
in
this field,
Dr.
Rosenne’s compilation
of
the records of the
Committee
of
Experts
for
the
Progressive
Codification
of
International
Law
together with his Introduction
stand
as
a
valuable contribution to the whole issue of the codification and
progressive development of international law.
L.
C.
GIIEEN.
THE EFFECTIVENESS
OF
INTERNATIONAL
DECISIONS.
Edited
by
STEPHEN
M.
SCHWEBEL.
[Leiden
:
Sijthoff
;
Dobbs
Ferry, N.Y.
:
Oceana.
588
pp.
$19.50.1
TIE
volume under review consists of the papers presented at
n
Confcrcnce
organised in
1965
by the American Society of International Law dealing with
?‘he Efectiveiiess
of
Iitternabioaal
Decisions, together with
a
reasonahly
frill
transcript of the discussion that took place on those papers. Despite its title,
surprisingly, none of the papers is concerned with the work
of
the Interncitional
Court of Justice, whose decisions are, for the main part, carried out both
by
the states parties to disputes and by the international organisations which
have requested advisory opinions. Instead, the bulk of the material concerns
the activities
of
a variety of international organisations, such
as
the various
specialised agencies and the Inter-American Development Bank and the
I4:nropcan Orgnnisations. Primarily, these papers are descriptive and give
ti
detailed account of the way in which these organisations reach their decisions
and
the nieans
by
which they are carried into effect. They provide therefore
Nov.
1978
REVIEWS
683
a
most useful comparative account and constitute a valuable contribution to
the study of the constitutional law
of
international institutions, although
Mr.
Gold, the General Counsel and Director of the Legal Department of the
International Monetary Fund, says of his own paper that it “concen,trates
011
those aspects that carry the special stamp of the Fund and are therefore
not part
of
the common law of international organisations,
if
indeed
there
is
any
such common
law”
(p.
71,
italics added).
Perhaps of most interest
at
present are the papers on Europe. Dr. Gaudct
points out that the European Community
uses
a
multitude
of
techniques
ranging from those used in ordinary international meetings to the specific
instruments, like Regulations which may be binding even upon individuals and
may be invoked in munici,pal courts
(p.
809,
provided by tlie Treaty. He
indicates that the binding character of Conimunity decisions depends not on
the type of majority by which they
are
reached, but on the type of decision
involved
(p.
all),
and he
uses
the example
of
the German courts to demonstrate
the manner in which municipal courts may differ in their interpretation of
Community obligations
(p.
323).
The Council of Europe
docs
not make obliga-
tory decisions, but Dr. Golsong emphasises that the recommendations of the
Committee of Ministers are
“
expected
”
to be acted upon
(p.
341)
and reminds
us
thnt in the Council much reliance
is
placed on parliamentary pressure
groups
(p.
345).
In
so
far
as
the European
Court
of Human Rights is
concerned, Dr. Robertson discusses the
De Beeker
and
Ofner
cases to show how
both Belgium and Austria were
I‘
pressurised
”
into amending their criminal
codes
(pp.
847-360).
Apart from the papers dealing with individual institutions, there are three
or
four
general essays on
The
Bfecliveness
of
Znternatiotlal
Decisions
at
large. In
so
far as the application and enforcement of international organisn-
tion law by national courts are concerned, Dr. Stein comments that the
ISurcrpean Court has
“
ruled that the Treaty makes it
‘
impossible
’
for member
States to accord superiority to
a
prior or subsequent national law over tlie
Community legal order
I’
(p.
68).
Dr. Higgins looks
at
compliance with United
Nations decisions on peace, security and human rights and emph,asises
how
iniportant it
is
to distinguish between
“
compliance” and effectiveness,”
and uses the example of Rhodesian sanctions
as
an example, asking whether
“compliance” by all would have had the “effect” of destroying
U.D.I.
At
the same time, she remarks that non-members
“
will have less reason to comply
[with United Nations resolutions] through fear
of
possible sanctions, but
will be unlikely to be seen to flout the wishes of the United Nations.
.
. .
[Never-
theless,]
.
. .
both Germany and Switzerland (which said it would keep
trade with Rhodesia
at
the
I‘
normal
”
level) have increased their trade with
Rhodesia in spite of tlie imposition of sanctions
’I
(pp.
35-36).
Mr.
Lauterpacht
is
also concerned with Rhodesia in his examinntion of the implementation
of decisions of international organisations through national courts. He argues
that since Great Britain
is
still the sovereign of Rhodesia, she could legislate
to
vest in herself the title
to
any goods sold from exports in violation of the
Security Council boycott resolution, although this would require legislation
and the Crown would have to sue for recovery abroad
(p.
69),
although
it
must
be remembered that many states refuse to enforce foreign confiscatory
or
penal laws
(pp.
GO-GI).
He
suggests that this type
of
situation might mean
calling upon states to put international before national public policy
(p.
G3),
and considers that there is no reason why the United Nations should not
take similar action concerning South West Africa
(p.
M).
The first Conference paper is contributed by
Mr.
Schachter who considers
tlie trend towards
a
theory of internntional obligation. He suggests that legal
norms depend essentially on authority to prescribe, response by those
to
whom
they are addressed, and the relation between the response and community
piirpose and values
(p.
17).
He writes that “if the tacit rules of the game
developed by the major powers are perceived by themselves and by other
684
THE
MODERN
LAW
REVIEW
VOL.
36
segments of the community
as
‘
state
practice
’
carried out by entities wluich
are appropriate decision-makers for that purpose and
in
accordance with
procedures which are considered
as
appropriate, that practice would be
authoritative.
.
. .
This does not imply
that
the practice of two or three
states ‘imposes’ obligations on others;
it
means that such practice may be
vdewed
as
authoritative by those ‘others.’ And, if that practice
is
also
per-
ceived
as
likely to be complied with,
it
would then appropriately be characteri-
sed
as
‘practice accepted
as
law.‘ Our test, in brief,
is
an empirical one on
both scores: legitimacy and effectiveness.
.
. .
[Wlhen
a
‘general consensus’
should be decisive against
a
particular state will depend
on
fundamental policies
of the community” (pp.
19-20, 24).
It
is
difficult to comment on any particular statement made during the
discussion
of
the various paipers, but
it
may well be worth drawing attention
to the comments of
Sir
Kenneth Bailey on the United Nations role regarding
self-determination. In his view, in
this
field the “General Assembly got away
from its lawyers and the lawyers have got away from the law.
,
.
.
There
is
of course
a
case to be made and I
am
not
so
partisan
as
not to realise
that
il
case can be and
b
sincerely made by those who sponsor [these] resolutions.
.
.
.
It
is based on the principle of the mobilisation of shame” (p.
601).
L.
C.
GREEN.
THE VIETNAM WAR
AND
INTERNATIONAL
LAW. (Sponsored by the
American Society of International Law.) Volume
8.
Edited by
RICHARD A. FALK. [Princeton,
New
Jersey
:
Princeton Univer-
sity Press. London: Oxford University
Press.
1972.
xi and
951 pp. (inc. documents and index). Bound
212.50.
Paper-
back X4-75.1
Tirrs
is the third volume in the series sponsored by the Panel on the Role
of International Law in Civil Wars of the American Society of International
Law. The earlier volumes were noticed in this
Review,
Vol.
33 (1970),
pp.
111,
472.
bike the other compilations, the present volume consists almost entirely
of articles previously published elsewhere, together with documentary
appendices. The principal concerns reflected in the latest collection are the
Cambodian incursion of
1970,
responsibility for war crimes, and the American
constitutional debate on the Vietnam war. There is
a
wide range
of
opinions
and material on these matters. The contributions on war crimes relate to the
My Lai massacre and associated operations. The value
of
the materials
would have been enhanced if some reasonably full factual account of the
operations at My Lai had been set forth at some stage. The Cambodian
events involve the argument that neutral states may lose immunity
if
they
provide havens and bases
for
belligerents. This approach gives Thailand a
vulnerable status legally
as
John
H.
E.
Fried points out in his contribution
(at
p.
112).
The value
of
these volumes to lawyers and others is obvious.
IAN
BROWNLIE.
POPULATION
AND
LAW. Edited by LUKE
T.
LEE and ARTHUR
LARSON. [Leiden: Sijthoff,
in
conjunction with the Rule
of
Law Research Center, Duke University. 1971.
x
and 452 pp.
Dfl.
62.50.1
INTERNATIONAL
MIGRATION
LAW. By RICHARD
BENDER.
[Leiden
:
Sijthoff, in conjunction with the Rule of Law Research Center,
Duke University. 1972. xxiii and 889 pp.
Dfl.
55.1
h‘ov.
1973
REVIEWS
685
LEGAL
ASPECTS
OF
FAMILY PLANNING
IN
INDONESIA.
[Law and
Population Programme, Fletcher School
of
Law and Diplomacy.
1972.
85
pp. and appendices.]
THE
STATUS
OF
REFUGEES
IN
INTERNATIONAL LAW.
By
ATLE
GRAIIL-
MADSEN.
Vol.
2.
[Leiden: Sijthoff.
1972.
xvi and
482
pp.
Dfl.
79.1
WIIEN
the reviewer visited the United States Judge Advocate General’s
School of Law recently, he
was
interested to find
a
full dny setninar going
on concerned with the legal problems of family planning. It was explained
to hint that since the United States has members of its armed forces scattcrcd
all over the world, the legal officers attached to such forces are frequently
confronted with questions concerning thc legality of various methods of family
planning that appeal to some of the troops under their care. Many of thc
books being published under the
ovmnll
supervision
of
Dr.
1.cc
as
Director
of
the Law and Population Programme at the Fletcher School will prove
of
inestimable value to such legal olficers, and the pamphlet
on
Legal
rispcctz
of
Fnmily
Planiring
in Indonesin,
which ci~tpl~nsiscs that family planning is
a
basic human right, could well serve
as
a
moclcl for similar pul)licabions con-
cerning other countries- although perhaps most lawyers would
prefer
(I
n~uch
clearer distinction being drawn between the
Zen.
lata
and proposals
de
lep
forenda.
13cological considerations and fears of world orcrpopula tion hnvc
mnclc
people and politicitins very aware
of
population problems and the need
for
proper
planning if mankind is to have any futurc. The rolu~nc on
l’opu-
lation
arid
Law
edited by Professors Lee and Idarson serves
as
a
useful
introduction to this problem. It provides
a
survey of the legal position
as
it
concerns population in selected countries from east and southeast Asia (Japan,
Karen
and Thailand), South Asia (India and Pabistan), West ICuropc
(Bel-
gium, Sweden and Western Germany), East
Europc
(East Gcrniany, Czeclio-
slovakia and the Soviet Union), and the Middle East (Islamic countries,
Tunisia and the
U.A.R.).
In
addition, there is an account of the work beinR
done by and under the auspices of the United Nations, together with a sum-
mary by I’rofessor Larson, who suggests that “the
use
of vending machines
for condoms may
be
authorised as
a
way of ma.ximising availability,
.
.
.
al-
though
some
restrictions on placement of such machines are necessary for
obvious [but unspecified] reasons,” and he calls for correction
of
“wide dis-
parity between law and pracbice
”
in regard to abortion.
It
is to be hoped that Professor Lee
has
similar studies in hand for other
countries.
The
lack of an index
is
compensated somewhat
by
reason of the
fact that the various countries are dealt with in accordance with an overall
ou
tiine.
Family planning is only one aspect of population problerns, whether of a
legal
or
physiological character, and
it
is
all
very well talking of it
as
a
human
right.
A
human ricght which
is
perhaps more usually spoken
of
is
that con-
cerning freedom of movement of the individual-a problem which
has
become
of topical interest in the light of such acts
as
the expulsion of Asians from
Uganda, the denial of emigration from the Soviet Union, and the operation
of legislation like the British concerning Commonwealth immigrants.
nr.
Plender’s
International Migration
Law
provides
a
careful analysis
of
the
practice in
a
variety of countries
and
finds that theoretical assumptions on
this matter frequently differ from the reality, and there is little point in talk-
ing about interdqpendence in this field. He points out that “there *is one
detail
in
respect of which the general international concept of nationality
differs from the Commonwealth concept. British subjects without citizenship
are (in effect) relegded to the
status
of
stateless persons in
so
far
as
con-
cerns their protection by one Commonwealth country against another. Ncver-
theless, they
are
eligible
for protection against foreign states, and it is still
686
THE MODERN LAW REVIEW
VOL.
86
usual for the United Kingdom to exercise diplomatic protection on their behalf
when
it
is
alleged that they have suffered injury
as
a result of action taken in
contravention
of
international law by
a
foreign
state”
(p.
37).
Mass expulsion, however, of the kind that has recently occurred in Africa-
see
the
discussion
of
the Kenyan Asians (pp.
88
et.
*Q~Q.)
and
the
current
Ugandan situation--does not mean very much from this point of view, nnd the
expellees frequently find themselves as homeless refugees, and
Dr.
I‘lender’s nc-
count of the position of refugees (pp.
216-266)
serves as
a
useful background to
the far more spedalised analysis provided by
Dr.
Gmhl-Madsen in his
Statw
of
ILefugees
in
International
Law,
the second volume of which, dealing with
asylum, entry and sojourn, has only recently been publislied. Much of the
volume is devoted to the “right
of
asylum,” and the author points out that
while it is still the case that no duty exists to grant asylum, “scholars in
many co~ntrics are seriously exploring the question with
a
view to finding
a
suitable form for
a
binding international instrurncnt guaranteeing the
individual
a
right to be granted asylum, should he be in need of it” (p.
22).
Among the problems considered by
Dr.
Grahl-Madsen
are
the rights
of
refugees when admitted. While
a
state may not tolerate intervention against
a
neighhour,
he
points out that there is no
rule
of international Inw
or
of
comity which calls
for
the receiving state to restrict,
for
example, their free-
dom
of
movement
or
political activities
(pp.
146
et
ssq.).
He reminds
us
that
there is no obligation to admit
a
refugee
or
other alien
(p.
196),
but empliasises
that international agreements niay impose such an obligation
as
is the case
with workers among Common Market countnies
(p.
288),
while
it now
appears
to be generally recognised that those refused entry should not be returned to
countries where they are likely to suffer
persecIrtion-iioa-refoulenlent
(pp.
93-
98,
317).
l’he books noted here
are
closely interconnected and
all,
in
their various
ways, should appeal to those interested in human rights and questions
concerning population and law.
I,.
c.
Gmm.
Book
Notices
THE
LAW
OF
SUCCESSION
IN
THE
LATER
ROMAN
REPUBLIC.
By
ALAN
WATSON.
[Oxford
:
Clarendon Press.
1971. 209
pp.
(inc. index).
€8.50
net].
‘~IIIS
book
completes the series of volumes on the substantive law of the last
200
years of the Itoniaii Republic, and follows on the author’s
l’he
Law
of
Obligations
(1966),
The
Law
of
Persons
(1967)
and
The
Law
of
Property
(19G8).
l’he aim has been
to
examine all the texts which directly throw light
on
the law of the period, but
to
exclude from the argument texts which do
nothing
more
than illustrate the law of an earlier
or
later time.
The
volume
should be of interest
to
the social historian as well
as
to the lawyer.
TUE
LAW
OF
ATHENS.
PROCEDURE.
By
A.
R.
W.
HARRISON.
[Oxford: Clarendon Press.
1971. 270
pp.
(inc. index).
€8.75
net.]
THE
first volume
of
The
Law
of
Athens,
pub1,ished in
1968,
dealt with the law
of the fnm,ily and of property. At the time of his death in
1969
the author
had drafted most of his account of the law of procedure; this has been edited
by Mr.
1).
M.
hlacnowell and is here presented
as
a
second volume. Most
aspects of procedure in Athenian trials are covered, and special attention
is
paid not only to what happened
in
court but also
to
the steps which led up
to
a
hearing and the consequences which followed when it
was
over.
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