Thinking about Law: In Silence with Heidegger – By Oren Ben-Dor

Book reviews

Convergence in Shareholder Law, by mathias m. siems.Cambridge: Cambridge University Press, 2008, xlix + 400 + (references + index) 70pp(£75 hardback). ISBN 978-0-521-87675-9.

In an article published in 1996, La Porta, Lopez-de-Silanes, Sheifer and Vishnyadvanced an alluring thesis with regard to legal origin and the development ofdispersed shareholder ownership.1 They argued that strong legal protection for share-holders, predominantly found in common law countries, provides a central explana-tion for the development of dispersed shareholder ownership within those countries.Where shareholder protection is weaker, typically in countries which are civilian inlegal origin, concentrated ownership results.

Corporate and securities law scholarship has been enlivened by the work of LaPorta et al and the ‘law matters’ debate. It was quickly pointed out that share owner-ship in the UK became dispersed in the absence of strong legal protection for share-holders.2 Moreover, scholars suggested that other factors – including politicalconditions,3 and informal relations of trust between shareholders and directors4 –better explained the circumstances contributing to the development of dispersedshareholder ownership. Indeed, whilst La Porta et al continue to assert the significanceof legal origin, they nevertheless recognise the challenge to their thesis posed by theUK example; they also acknowledge the significance of gaps in the historicalresearch.5

This search for more plausible and analytically richer explanations has resulted inwhat has been described as a ‘new wave’ of historical research on corporate gover-nance.6 Such scholarship takes as its starting point the empirical and conceptuallimitations of earlier research. It exhibits several characteristics, including the rejec-tion of historical continuity in order to recognise complexity and change over time; agreater recognition of the way in which data, mechanisms and institutions are embed-ded in the larger political, social and economic context; and an awareness of theproblems associated with existing systems of classification, such as those concerninglegal families and the extent to which models of governance promote shareholder orbroader stakeholder interests.7

1. R La Porta, F Lopez de Silanes, A Shleifer and R Vishny Law and Finance NBERWorking Paper (W5661, 1996), available at http://ssrn.com/abstract=7788.2. B Cheffins, ‘Does law matter? The separation of ownership and control in the UnitedKingdom’ (2001) 30(2) Journal of Legal Studies 459.3. M Roe Political Determinants of Corporate Governance (Oxford: Oxford UniversityPress, 2003).4. J Franks, C Mayer and S Rossi Ownership: Evolution and Regulation European CorporateGovernance Institute – Finance Working Paper (09/2003, 2003), available at http://ssrn.com/abstract=354381.5. R La Porta, F Lopez de Silanes and A Shleifer ‘The economic consequences of legalorigins’ (2008) 46(2) Journal of Economic Literature 285.6. G Herrigel, ‘A new wave in the history of corporate governance’ (2007) 8(3) Enterpriseand Society 475.7. Ibid.

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© 2009 The Authors. Journal Compilation © 2009 The Society of Legal Scholars. Published by Blackwell Publishing,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

http://ssrn.com/abstract=7788

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Professor Siems’ ambitious book shares many of the characteristics of researchwithin this new wave of scholarship. Its purpose is to consider the extent to whichconvergence in shareholder law has occurred, the scope for further convergence andthe desirability of convergence. In so doing, it recognises the limitations of La Portaet al’s work and provides a substantial comparative analysis of the legal rules designedto protect shareholders in countries chosen from amongst three legal families: thecommon law (USA, UK), the civil law (France and Germany) and mixed Asian legalsystems (Japan and China). This selection is appropriate and necessary. Single coun-tries cannot alone represent the legal system and tradition to which they belong.Indeed, as the UK illustrates, individual countries sometimes provide examples ofmore than one legal tradition.

The book is divided into four parts. In part one, the author explains his purpose andmethodology. The corporate forms in the chosen countries are introduced and distinc-tions drawn between shareholders in different types of company. A short overview ofthe influences shaping the law in each country is provided and the influence of foreignlaw is shown. This permits Siems to make an important point: that convergence inshareholder law within jurisdictions, and the reception of foreign law, are not new ortwenty-first century phenomena.

Part two contains five chapters and has the overarching title ‘The status quo ofconvergence’. In this part, Siems explores what he describes as the legal bases whichconstitute shareholder law broadly defined, including international law and nationallaw; statutory and case-law; securities and company law; self-regulation and stateregulation. The discussion of the latter considers the extent to which the legal frame-work is mandatory and the scope for private ordering through the articles and share-holder agreements. A common assumption is that common law jurisdictions favourprivate ordering and self-enforcement. Siems’ analysis unpacks this assumption anddemonstrates commonality across jurisdictions with regard to the mix of mandatoryand default rules and the role of the articles of association. With regard to changes tothe articles of association, Siems notes that concentrated ownership in continentalEurope makes it easier to obtain the necessary votes, compared with the UK whereownership of listed company shares is more fragmented.8 The situation is, however,more nuanced: dispersed ownership can make it easier for the board to secure changesgiven the degree of control it is likely to enjoy in practice over shareholder meetings.

Elsewhere in part two, Siems considers the role ascribed to shareholders incompany decision making and the protection they receive from majority oppression.He finds convergence across the jurisdictions with regard to the division of powersbetween the company’s managements and the shareholders in general meeting. More-over, legal duties designed to prevent abuse of directorial power are found acrossjurisdictions. But important differences also emerge within legal systems, particularlybetween US and UK securities and company law. Also considered is whether conver-gence across jurisdictions is the product of one-sided reception of American law. Thisview is rejected and Siems notes the tendency for jurisdictions to ‘cherry pick’provisions from more than one jurisdiction. This point is well made. Indeed, twoprominent features of the UK corporate governance framework – shareholder votingvis-à-vis directors’ remuneration9 and the separation of the roles of chairman and chiefexecutive officer10 – continue to receive attention in the USA.

8. Siems, p 53.9. Companies Act 2006, s 439.10. See Combined Code on Corporate Governance (London: FRC, 2008) Provision A.2.1.

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Part three is entitled ‘Developmental trends and patterns’ and contains chaptersexploring the forces shaping the development of shareholder law. Siems draws adistinction between convergence through congruence (arising through, eg, economicinternationalisation and approximations in legal culture) and convergence throughpressure from shareholders, directors and interest groups. He argues that ‘legal uni-fication from below’, rather than international or national law, will be most importantin shaping future convergence. Several (overlapping) congruence forces are identifiedas the drivers of this convergence: greater use of modern communication methods,approximations in economic policy, increasing cross-border investment, the liberali-sation of international capital markets and reforms in pension provision.

Siems argues that an approximation of shareholder structures is occurring and hecites the decline in individual ownership of UK shares and the increasing dominanceof institutional ownership as an example.11 He is right to highlight the significance ofinstitutional investors, not least because they have been ascribed an important rolewithin the UK corporate governance framework. Siems’ discussion would, however,be enhanced by greater recognition of the differences between institutional investors:they are not a homogeneous group and have different interests and investment timehorizons. Indeed, it is necessary to ask to what extent are the interests and motivationsof sovereign wealth funds – the role of which is currently under the spotlight –different from existing categories of investor.

With regard to convergence of shareholder law concerning close companies, Siemsbelieves that greater differences will remain than with public companies. Certainly itis easier to identify those forces driving convergence of shareholder law in public andlisted companies. Nevertheless, within Europe, two developments point to furtherconvergence with regard to closely held companies. The European Commission haspublished proposals for a new corporate form – the European Private Company orSocietas Privata Europaea12 – aimed quite clearly at small businesses. Moreover,significant changes were made to German company law in 2008. A new corporateform – the Unternehmergesellschaft (haftungsbeschränkt) or entrepreneurialcompany with limited liability – was introduced and can be formed with as little as aone Euro.

Siems concludes in part four and here his normative position regarding conver-gence and the shareholder’s role is more explicitly articulated. The purpose of futureconvergence should be the ‘empowered shareholder model’ and he argues that therational apathy of shareholders should not be accepted and that shareholders should begiven more responsibility. Siems does not advocate mandatory voting but arguesinstead that shareholders should have greater access to information, articles shouldpermit greater opportunities for shareholder decision making and barriers to theenforcement of shareholder rights should be eliminated. There is, of course, noguarantee that these recommendations will result in shareholders exhibiting (or indeedaccepting) the degree of responsibility which Siems views as desirable. This wouldrequire a more fundamental review of the role of shareholders within publiccompanies.

It is impossible to do full justice to the depth of Siems’ scholarship in this shortreview but one thing is clear: he makes a valuation contribution to scholarship andillustrates the extent to which convergence is occurring. He persuasively demonstrates

11. Siems, p 289.12. See the website available at http://ec.europa.eu/internal_market/company/epc/index_en.htm.

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the difficulties with widely used descriptive dichotomies (eg shareholder versus stake-holder) and reveals the underlying complexities and richness of shareholder law(broadly construed) within his chosen jurisdictions. Indeed, his analysis provides apowerful lens through which to explore the significance of recent developments. Forexample, the regulatory consequences of the financial crisis are not fully formed butthe need for international solutions is accepted. Moreover, it is likely that US issuerswill be permitted to use international accounting standards from 2014.13

One final point: the text is generally well written although there are occasionswhere greater clarity of expression is possible. For example, Siems states that the‘accuracy’ of accounting is of pre-eminent importance in the USA and UK.14 Accuracyis not, however, a core characteristic ascribed to financial reporting, not least becauseit suggests that there is a right or wrong approach in circumstances where preparers ofaccounts retain significant discretion. Siems also notes that the UK’s Combined Codeon Corporate Governance ‘suggests that institutional investors should vote’.15 TheCode, in fact, provides that institutional shareholders ‘have a responsibility to makeconsidered use of their votes’.16 There is a subtle difference: the Code does not insistthat shareholders vote; to do so would deprive them of the signal that can be sent bydeclining to vote for (but not against) a resolution. Such criticism should not, however,detract from the scale of Siems’ achievement. His book is destined to becomean important reference point for corporate governance scholars in many academicdisciplines.

Robert Goddard17

Thinking about Law: In Silence with Heidegger, by oren ben-dor.Oxford, Hart Publishing, 2007, xvi + 406 + (bibliography) 8pp (£30 paperback). ISBN978-1-84113-354-6.

Martin Heidegger, that ‘greatest of thinkers, but smallest of men’,18 has not beenserved particularly well by legal philosophers. That is, not until the publication ofOren Ben-Dor’s Thinking about Law. In the opinion of this reviewer, this subtle anddetailed analysis of the contribution of Heidegger’s thought to our understandingof law constitutes an original and important contribution to both legal theory andHeidegger scholarship.

However, this text is more than (just) an exposition of Heidegger, it is a meditation– a word I use quite deliberately here – on the connection between a fundamentalontology, law and ethics, drawing on both Heideggerian thought and the work ofanother notoriously elusive philosopher, Emmanuel Levinas. Indeed, despite the title,this is almost as much a book about Levinas as it is about Heidegger. This is, of coursean interesting and provocative juxtaposition, and deliberately so. Ben-Dor ultimatelyoffers us a critical re-reading of Levinas, the philosopher who claims above all else to

13. See the SEC’s Roadmap for the Potential Use of Financial Statements Prepared inAccordance with International Financial Reporting Standards by US Issuers, available at:http://www.sec.gov/rules/proposed/2008/33-8982.pdf.14. Siems, p 131.15. Ibid, p 117.16. Combined Code on Corporate Governance (London: FRC, 2008) Main Principle E.3.17. Senior Research Fellow, Aston Business School.18. Comment attributed to Heidegger’s one-time student, the phenomenologist Hans-GeorgGadamer – see Berel Lang Heidegger’s Silence (Cornell University Press, 1996) p 86.

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have sought to re-establish ethics as ‘first philosophy’, to support the claim thatHeidegger – who has often been regarded as questioning the very possibility of ethicsand of a ‘moral’ existence as we conventionally understand it19 – really does havesomething fundamentally ethical to say about what it means to be a human being.

In so doing, Ben-Dor deliberately focuses on the later Heidegger, following thepublication of his masterwork Being and Time. This takes us from the 1930s to hisfinal works in the mid-1970s, and was a period, it is often said, which saw a markedchange in his thinking and method, a move which Heidegger scholars tend to refer toas ‘the turn’ (die Kehre). Ben-Dor, while rejecting the more schismatic readings of theturn in Heidegger’s thought, nonetheless uses the later Heidegger as an entry point tounderstanding the whole Heideggerian oeuvre, arguing that Heidegger himself ‘wasconstantly “on the way” displacing his own work by its own unsaid’ (p 34). It is anapproach that, tantalisingly, in Ben-Dor’s own words ‘attempts to make Heidegger’swork itself hover in temporality’ (p 311), and in this it largely succeeds, capturingmuch of the experiential and transformative feel of ‘thinking at the limit’20 apparent inHeidegger’s own writing.

In this later work, which is less systematic in its concerns than his earlier writings,and methodologically grounded far more in the exegesis of philosophical and poetictexts, Heidegger turns to a re-examination of the subjectivity of the subject, and withit the question of moral responsibility.21

Ben-Dor’s thesis involves three linked claims that move from the relationship ofthe ontological and ethical to a deep attentiveness to the essence of law, as distinctfrom what the author calls ‘the legal’. The point of departure for this detailed and attimes highly complex exegesis is Heidegger’s conception of thinking itself asthinking-Being, as both an awakening and responsiveness to Being that takes us awayfrom metaphysics – in effect away from theory as we conventionally understand it,and the craving for theories about a thing – towards an opening to the ofteninexpressible essence or ‘concealed sameness’ of the thing itself.

Ben-Dor argues that in thinking about the essence of law we are called upon tothink about law’s Being, not to think about law: that ‘aboutness’ is both historical andyet also primordial or original – the ‘what is being choked when lawyers raise theirvoice’ (p 99). The crux of the discussion of law’s essence, in chapter 4 of Thinkingabout Law, seeks to distinguish the Being of law – ‘that part of the order of Beingwhich characterizes beings striving for persistence as beings . . . the order of care,which is primordial togetherness’ (p 149) from ‘the legal’. The legal, Ben-Dor asserts,is both the opposite of this, a disorder and, quite literally, a carelessness (or perhapswe might say a care-lessness) that blinds us to the harm caused by the loss of the

19. A criticism Ben-Dor himself acknowledges (p 33). Cf, eg, JN Findlay’s observation ‘at thelevel at which Heidegger’s existential person lives . . . there can be no values in any organised,systematically discussable sense, only the tortured preferences of the individual, into whoseloneliness, styled “authenticity”, the whole organised world of value and being has beenabsorbed’ – Axiological Ethics (Macmillan, 1970), p 3.20. D Wood Thinking After Heidegger (Polity Press, 2002) p 7.21. In this later Heidegger, Philip Buckley, rightly in my view, argues that ‘the “ethical life”is one that appears in the very disappearance of the calculating, objectified “subject” who is thefocus of traditional moral theory . . . [Heidegger] sees in traditional ethics and its view of the“moral agent” precisely a type of subjectivity that must be “overcome” in order to arrive at an“original’ ethics” ’: R Philip Buckley ‘Martin Heidegger: the “end” of ethics’ in J Drummondand L Embree (eds) Phenomenological Approaches to Moral Philosophy (Kluwer, 2002)pp 214–215.



protection of the essence of our humanity (which is not our own subjectivity, but theopenness to Dasein), and also a distortion of it, since the legal also seeks to protecthuman beings, but not in their essence. Indeed:

‘The more the legal is preoccupied with protecting human beings and themore entrenched such protection becomes in terms of approaches to truth, tech-nology, language, history, and, of course, ethics, the more harm is caused to theessence of human Dasein, its ethical openness towards listening and responding tothe truth of the unconcealment of being.’ (p 159)

Here we can begin to see why Ben-Dor also has to engage with Levinas. Asking thequestion of aboutness leads us unerringly to the relationship of law to its other, the‘mystery’ of alterity, and to the problem of an ethics that is, ultimately, not ethical.This is explored in the three chapters that form part B of the book, which deliver anequally close, but in some respects quite distinctive reading of Levinas.

The linkages between Heideggerian and Levinasian though are, in many ways,extremely strong. Levinas himself had met with Heidegger in Freiburg at the end ofthe 1920s, and was one of the first French scholars to draw attention to Heidegger’swork.22 Levinas shares with Heidegger a deep distrust of conventional (post-Platonic)metaphysics – which, rather confusingly, Levinas labels ‘ontology’. Like Heidegger,Levinas seeks to overthrow metaphysics and hence destabilize, or more accurately,displace philosophy as a discourse of mastery, and return to what both writers saw asthe original themes of philosophy.

In Totality and Infinity, Levinas erects the notion of being-for-the-other as thepre-condition of being. In this way he presents a significant challenge to the standardphilosophies of liberal individualism. Liberal individualism is ontologically troublingin the way it constructs the relationship between the self and the other. The selfenvisaged by Descartes and Kant serves as the starting point of all social relations. Theother is reduced thereby to an imitatio ego23 encapsulated in deontology’s GoldenRule: that we should treat others as we would wish to be treated ourselves. By buildingour ethical and legal relations on such premises of formal equality and reciprocity, wecreate a disembodied and generalised other that we can know only through ourselves.Almost paradoxically, we thereby create an unbridgeable moral distance between selfand other. While we might be enjoined to treat the other as ourselves, the other mustalways remain different and secondary to the self. The best we can achieve, throughconventional ontology then, is an existence of collaboration, of being-with the other.

It is around this point that Levinas seeks to re-construct the relationship betweenethics and ontology, to recreate ethics as his ‘first philosophy’. For Levinas theproblem with being as we conventionally understand it is that it constitutes ontologywithout morality. Indeed, the very language of ontology cannot adequately express theethical relation; rather, it causes us to disqualify morality and substitutes in its placea simulacrum – a coercive ‘law-like ethics’ which maintains a form of being-with onlythrough its system of rules and sanctions. By contrast, the question of authenticresponsibility for others, which for Levinas is the heart of ethics, concerns thesubjectivity ‘passed over to being’s other, otherwise than being’24 – it is thus, in histerms, a pre-ontological relation in which morality itself becomes the transcendence

22. See E Levinas En Découvrant l’existence avec Husserl et Heidegger [1949] (Vrin, 2002).23. C Douzinas ‘Justice, judgment and the ethics of alterity’ in K Economides (ed) EthicalChallenges to Legal Education and Conduct (Hart, 1998) p 31.24. Otherwise than Being or Beyond Essence [A Lingis (transl)] (Martinus Nijhoff, 1981) p 3.

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of being. By focusing upon this ethical opening to the Other (always capitalized inLevinas’s writing), commonly captured in his metaphor of the face-to-face encounter,he consistently indicates a very deliberate break with Heidegger’s notion of the ethicalas a state of openness to Being.

In chapters 5 and 6, Ben-Dor does an excellent job of tracing the inscriptionof Heideggerian thought within Levinas, and also of mapping the development ofLevinas’s own thinking from Totality and Infinity to Otherwise than Being, notably inthe context of Derrida’s critique of the former in his Violence and Metaphysics.Ben-Dor is not the first to question the necessity of Levinas’s move contra Heidegger,nevertheless, through the text he offers a number of trenchant criticisms of Levinas,and particularly of Otherwise than Being. At the heart of this critique is the argumentthat it is precisely the insight of Heideggerian ‘fundamental ontology’ that ethics islocated beyond a conventional or derivative ontology; that it ‘outstrips being’.25 In thissense, then, Ben-Dor does not reject Levinas outright, but he does raise the compellingcharge that Levinas ultimately fails to escape from the grasp of derivative ontology,and that his notion of otherness thereby remains trapped within Being, without beingsufficiently attentive to the being of Being, and trapped within the legal, unable toconnect the essence of the ethical with the essence of law.

This creates the opening for Ben-Dor’s remaining chapters to argue that such alinkage can be achieved through a re-reading of Heidegger’s concept of Being-with inthe light of his later writings on language and the notion of dwelling. The analysis isa convincing one to those who have read the later Heidegger. Here, ethics is not ameasure of the good life, but a space or dwelling in which Being can come to be. Theethical subject (if we can call her that) exists in a state of ‘being there-with’, whatBen-Dor describes as ‘a relationship of authentic positive solicitude’ (p 353) to theother. This is a state of opening or attentiveness to Being in all its manifestations, andits authenticity, as I read Heidegger, lies in the understanding that the subject quasubject cannot ‘own’ or control the gifts of Being, or even their own openness toBeing. As Ben-Dor concludes:

‘our reflections on being-with the otherness of the other, dwelling together inthe boundary, the origin of “ought”, allow us to glimpse at the essence of ethics andlaw. The ethical as the attentiveness, as thinking/ “thinging”/“worlding”, comesnearer to Dasein, and the essence of law protects and enforces that unfolding of thecoming.’ (p 388)

Thus, Ben-Dor preserves the essentially Levinasian insight that alterity is the key toethical understanding and motivation, and seeks to retain, albeit through a Heidegge-rian (re)turn, an ethics against ethics, and a point from which we might avoid thecollapse, which Levinas seems to regard as almost inevitable, of ethics into ‘the legal’.

In conclusion then, this is a book that should be read by anyone with a seriousinterest in a phenomenology of law, and what it means to construct legal theory. It isnot an easy read. The analysis operates for much of the time at a relatively high levelof abstraction, and progresses through a close and detailed reading of Heidegger’s andLevinas’s work – indeed there is a level of detail that makes it quite difficult to capturethe ‘essence’ of the text in a review such as this. Moreover, it constantly confronts uswith the radical differences between the transcendental perspective of continentalphenomenology and English-speaking analytical philosophy. Ben-Dor certainlyseems conscious of this, and builds the complexity of the text as he progresses. It is,

25. Heidegger The Basic Problems of Phenomenology, cited in Ben-Dor, p 371.



for the most part, a well-written and carefully constructed work, though unfortunatelythe presentation is somewhat marred by a distracting number of ‘typos’ and errors thatone would have expected to have been edited out. I am also not sure that the formatof writing in a sequence of numbered paragraphs is wholly successful; it gives thebook a multi-layered, and rather non-linear, looping flow, that often works in context,though, personally, I found the anticipation of later arguments and the repetition ofearlier ones sometimes a little tiresome. But these are minor criticisms. It is animpressive piece of scholarship and a book that will reward re-reading.

Julian Webb26

Structure and Justification in Private Law: Essays for Peter Birks, edited bycharles rickett and ross grantham.Oxford: Hart Publishing, 2008, xxx + 452 + (index) 9pp (£75 hardback). ISBN978-1-84113-807-7.

This is a second collection of essays published to honour the memory of one of themost eminent of legal scholars, Peter Birks. The first collection, Mapping the Law:Essays in Honour of Peter Birks, edited by Andrew Burrows and Alan Rodger, waspublished in 2006 by Oxford University Press. Compared with the first collection,there are two distinctive features of the present volume. First, the contributors to theformer were from the UK and Germany, while the new book contains essays writtenby scholars from common law jurisdictions outside England, thus taking a muchbroader perspective on Birks’ academic achievement. Secondly, its theme is muchnarrower than that of the earlier volume, whose contributors took a variety ofapproaches – comparative, historical and doctrinal – to examine the law of unjustenrichment, while the present work focuses only on certain theoretical and doctrinalissues.27

The book is divided into three parts. Part I, ‘Why Restitution’, comprises twoessays exploring the normative foundations of unjust enrichment and restitutionaryliability. In the first, Ernest Weinrib pursues his well-known argument that private lawis justified on the ground of the Aristotelian concept of corrective justice, applying hisiconic approach to the analysis of the law of unjust enrichment.28 He argues that arestitutionary liability occurs because there is a transfer of value from the claimantto the defendant which is not a true expression of the claimant’s autonomy. Heconcludes:

‘. . . the principle of unjust enrichment [is] an embodiment of correctivejustice. Corrective justice focuses on the relationship between the plaintiff and thedefendant within a regime of liability. Drawing on the fact that the liability of aparticular defendant is always a liability to a particular plaintiff, corrective justiceseeks to explicate the normative considerations that match the relational structureof liability itself.’29

26. University of Warwick.27. C Mitchell ‘Structure and justification in private law: essays for Peter Birks, edited byCharles Rickett and Ross Grantham’ (2008) 124 LQR 720.28. E Weinrib The Idea of Private Law (Massachusetts: Harvard University Press, 1st edn,1995).29. Chapter 3: ‘The Normative Structure of Unjust Enrichment’ p 43.

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In the quest for a deeper understanding of the normative basis of the law of unjustenrichment, Kit Barker defends, in his essay, the position that the English approach tounjust enrichment is preferable to the civil law model (the legal basis approach).30 Hestarts his quest by seeking answers to the question of whether a gain made at theexpense of others needs to be justified, or whether there is a presumptive entitlementto keep it. The analysis of moral and legal starting points as to responsibility for gainin modern, liberal societies leads him to the conclusion that given the standardcompetitive norms pervading commercial dealings, gains made at the expense ofothers require no moral or legal explanation. The onus must lie on the claimant in anunjust enrichment case to show both that he has suffered some harm and that the wayin which he has been made to do so violates some behavioural (or possibly distribu-tive) norm. This is precisely the premise of the common law approach. A shift to thecivil law model would create a fundamental structural change in the law of unjustenrichment inconsistent with the liberal foundations of common law in general.31

The seven essays in part II, ‘The Place of Unjust Enrichment in the Private Law’,explore a taxonomic question: where should the law of unjust enrichment reside in theoverall structure of private law? Birks argued constantly throughout his academic lifefor the importance of classification in legal study. For him, ‘flawed classification is asource and symptom of intellectual disorder’.32 A failure of taxonomy of the law couldundermine the coherent structure of legal rules, which is the point addressed byMitchell McInnes in his opening paper of part II, ‘Taxonomic Lessons for theSupreme Court of Canada’. McInnes shows that the incoherent taxonomy in respect ofconstructive trust and unjust enrichment makes it difficult for the Supreme Court ofCanada to align causes of actions and remedies.

In her excellent essay, ‘Legal Positivism and the Taxonomy of Private law’, EmilySherwin defends Birks’ approach to the taxonomy of the law. She divides the methodsof legal classification into two types, namely formal classification, which aims toclarify the law and facilitate legal communication, and reason-based classification,which aims to guide and improve the quality of judicial decisions. Sherwin classifiesBirks’ approach as belonging to the first type and claims that although the reason-based approach is useful for law making, it may do more harm than good if presentedas a source of guidance for judges, because reference to high-order principles wouldundermine the value of specific legal rules and so possibly lead to an increase inerroneous judicial decisions.

Richard Sutton’s paper, ‘Restitution and the Discourse of System’, is reminiscentof Birks’ classical work, An Introduction to the Law of Restitution.33 In his paper,Sutton elaborates Birks’ two contributions to legal methodology, one on the classifi-cation of the law and the other concerned with the dynamics of law, which demon-strates how law can be developed by the interaction between the processes ofsystematisation and of legal declaration. Sutton argues that although the first aspectof Birks’ contribution is better known, the two are of equal importance.

Sutton’s paper is preceded by Hunoch Dagan’s reconciliation of legal realism andtaxonomy of private law. It is conventionally perceived that the jurisprudence of

30. Chapter 4: ‘Responsibility for Gain: Unjust factors or Absence of Legal Ground? StartingPoints in Unjust Enrichment Law’ p 47.31. Ibid, p 73.32. P Birks Unjust Enrichment (Oxford: Oxford University Press, 2nd edn, 2005) pp 20–21.33. P Birks An Introduction to the Law of Restitution (Oxford: Oxford University Press,1985).



realism is hostile to legal taxonomy, which has its root deep in legal positivism. Dagandemonstrates in his paper that this perception is not necessarily valid and that legalrealists do care about taxonomy, albeit their approach to it is more prescriptive. Forlegal realists, the main objectives of legal classification are to consolidate people’sexpectations and to express the law’s ideals with respect to distinct types of humaninteraction.34

In the following essay, Stephen Waddams explores the interrelationship betweenthe law of contract and the law of unjust enrichment. He claims that although the twoare individual bodies of law, they are not mutual exclusive. Therefore, it cannot beright to argue that the existence of contract is by itself enough to exclude a claim inunjust enrichment, and the choice of remedies should be at the discretion of theparties.

Part II concludes with essays by Daniel Friedmann and Steven Hedley. Contrary tothe traditional wisdom that the law of unjust enrichment serves to protect legalentitlement, Friedmann shows that it is effectively used to create entitlements, whichcan be seen as quasi-proprietary rights. Steven Hedley critically examines the ‘newinterpretative’ approach to legal analysis, which aims to find some tight and coherenttheories to justify a large and confusing body of legal information. He argues thatthis approach not only runs the risk of undermining the complexity of the law, butalso disguises the fact that legal rules often serve different, sometimes conflicting,normative values.

Part III, ‘Issues in the Law of Unjust Enrichment’, comprises a set of ten essayswhich explore a variety of doctrinal issues in the law of unjust enrichment. PeterButler discusses the issue of the recovery of advance payments made by a contractingparty. He investigates those cases where both a claim for restitution of advancepayments and a claim for breach of contract arise. In Butler’s view, the claim forrestitution of advancement can be better understood if the legal analysis is made interms of failure of the legal basis.

Struan Scott analyses the theoretical structure of the legal rules in relation toimprovements to land by investigating some leading cases. He argues that the caseswhich he discusses are of a theoretical nature, because English courts adopt Birks’narrow approach, treating them as cases of unjust enrichment. In fact, the legal scopeof these cases is much broader than envisioned by Birks.

In the two following essays, Simone Degeling and John McCamus consider thepublic law dimension of the law of unjust enrichment. The main argument inDegeling’s essay, ‘Understanding Policy-Motivated Unjust Factors’, is that the law ofunjust enrichment would be destabilised and incoherent if claims for restitution ofultra vires demands for tax and necessity were integrated into the law of unjustenrichment, while McCamus explores the development of the legal rules in respect ofa restitutionary claim for ultra vires demands for tax in Canada. In his view, Birks’scholarship had a decisive influence on the legal principle of ultra vires as developedby the Supreme Court of Canada.

Compared to other common law jurisdictions, the influence of Birks’ scholarshipon the USA is arguably moderate. Mark Gergen’s essay, ‘Towards UnderstandingEquitable estoppel’, may be seen as a reflection of this. Gergen shows that equitableestoppel in American law can be understood only by reference to legal remedies inother bodies of law, which runs against Birks’ famous argument that the law should beorganised in the light of causative events, not remedies. To defend the rationale of

34. Chapter 8: ‘Legal Realism and the Taxonomy of Private Law’ p 166.

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American law, Gergen suggests that Birks’ causative event approach to equitableestoppel cannot be both descriptively accurate and usefully narrow.

Michael Bryan’s paper, ‘Recipient Liability under the Torrens System: SomeCategory Errors’, is a critique of the Australian High Court’s decision in a recent case,Farah Constructions Pty Ltd v Say-Dee Pty Ltd, which concerned the recovery ofmisappropriated trust assets.35 According to Bryan, the court incorrectly treated theclaim as being about the knowing receipt of trust assets. Such a claim is moreappropriately seen as the assertion by the beneficiary of his equitable property rights,which has a significant implication for applying the Torrens land registration system.

In his 1997 lecture delivered as a distinguished visiting fellow in New Zealand,Birks advocated that proprietary remedies should be available for all of the restitu-tionary claims resulting from ‘initial failure of the legal basis’.36 Peter Watt, inhis paper, criticises Birks’ suggestion concerning proprietary remedy. In his view,because of the difficulty with the distinction between initial failure of basis andsubsequent failure, Birks’ suggestion would be rejected. Restitutionary claims for thetransferor’s own error should be seen as a personal remedy only.

The proprietary issue in relation to the law of unjust enrichment is also discussedin Eoin O’Dell’s paper, ‘The Resulting Trust’. O’Dell argues that Birks’ mispercep-tion of the roles of the donor’s intention led him incorrectly to treat the resulting trustas being restitutionary in nature. In his view, the resulting trust is created by theexistence of fact, such as a gift. The donor’s intention is of a responsive nature only,rather than constituting a trust.

Birks’ influential Blackstone lecture is the theme of the two final essays in thisbook. Stephen Smith’s paper is concerned with Birks’ critique of Blackstone, sayingthat he was wrong to treat court orders as remedies. In Smith’s view, court ordersshould not be characterised as remedies in terms of their content. A court order maybe a confirmation of the existence of legal duties resulting from not-wrongs. MichaelTilbury presents a critical analysis of Birks’ argument that the word ‘remedy’ oughtnever to be used in the analysis of law because it has no stable meaning. On thecontrary, Tilbury argues that the word ‘remedy’ does have a central meaning, whichconcerns the rights generated by causes of events. Birks’ Blackstone Lecture failedto achieve his aim of establishing that ‘remedy is a word which should be expungedfrom the analytical vocabulary of the law’.

In brief, all of the essays in this book are of high quality and generate valuabletheoretical insights. This is an outstanding collection of essays which should be readby everybody who is interested in the law of unjust enrichment.

Qi Zhou37

International Law on the Left: Re-examining Marxist Legacies, edited bysusan marks.Cambridge: Cambridge University Press, 2008, x + 307 + (index) 11pp (£55 hard-back). ISBN 978-0-521-88255-2.

At first glance at this title one might be dismissive of its utility on the grounds thatMarxist thought and international law occupy opposite ends of the intellectual spec-

35. [2007] HCA 22.36. P Birks ‘Property and unjust Enrichment: categorical truths’ (1997) New Zealand LawReview 623.37. School of Law, University of Sheffield.



trum; besides, did the events of the late 1980s/early 1990s not demonstrate the failureof Marxism? However, once one begins to delve into this collection it becomes clearthat Marxist thought has a good deal to offer when thinking about international law.The subtitle of the work makes it clear that this is not a study of Marxism per se butrather it is the ‘legacies’ of Marxist thought that are being investigated. The choice ofterminology is important as it allowed the contributors to draw upon Marx selectivelyalongside other critical perspectives. The stated purpose of the work is to explore ‘thecontemporary relevance of Marxism for the study of international law’. However, itscontent is much wider and will have an appeal beyond those with an interest ininternational law as the contributors engage in discussions that draw on Marxisttheories, international legal thought, international relations scholarship and jurispru-dence more generally.

The collection consists of nine chapters and an introduction from the editor; fiveof the chapters appeared in an earlier form in the Leiden Journal of InternationalLaw (2004). The editor’s introduction identifies the Marxist legacies which arecommon to the contributions. The first of these legacies is the attention to materi-alism; that is the need to account for the actual material conditions faced by indi-viduals and societies. An attention to materialism means there is no sense engagingin ‘idealist’ or universal models of analysis when the study and critique are detachedfrom reality. Furthermore, it also means a rejection of the autonomous power ofideas as the human condition cannot just be taken at face value but rather it isnecessary to examine existing material conditions and how they arose. The nextlegacy is the attention given to critiquing capitalism, which is related to how thematerial conditions of society have arisen and are maintained. Marx’s critique ofcapitalism is useful in today’s world given the prominence of capitalist-basedthought and practice as it ensures attention is given to the consequences of thedeliberate construction of a capitalist world. The third legacy is the use of ideology;understood as ‘the role of ideas and rhetorical processes in the legitimation of rulingpower’ (p 7). This touches heavily on international law (as well as other areas of law)as many of the contributors demonstrate how the law attempts to universalise par-ticular norms, avoiding the particular, glossing over historical inequities andobstructing claims for revision or redistribution. The critique of ideology leads to anexamination of the full range of processes that are used to legitimate existing powerin an effort to expose the rhetorical processes at work and the impact they have.Following this is the legacy of imperialism which takes the Marxist contribution tothe global level in examining the interaction among states and, in particular, thebehaviour of capitalist states in preserving their position in the global order. Much ofthis critique is well rehearsed in the ongoing debate regarding the ills of globalisa-tion and recent US foreign policy choices. The editor explains there are three par-ticular issues that the Marxist insight provides regarding imperialism and our view ofthe international system – that under-development in society is produced and not anatural event; the fact that it is produced shows it is consciously pursued throughcoercive force, and it is not an anonymous occurrence (pp 12–13). Following onfrom the imperialist tendencies of capitalist systems is the final legacy identified: theissue of totality. Marx has shown how capitalism strives to create a ‘world of its ownimage’, resulting in the expansion of capitalist systems and their integration into theglobal system, which is portrayed as the natural course. The problem with the impactof totality on international law is that social reality is seen as a naturally occurringphenomenon and not constructed. In response, international law has to engage in

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‘a complex kind of analysis that connects international legal norms with the widerprocesses through which their interpretation is shaped and enabled’ (p 15).

Within these common themes, the contributors adopt a variety of approaches, someof which would be called Marxist in perspective, others much less so. The diversity ofapproaches is evident from the first chapter where Koskenniemi begins by admittingthat he is not going to engage in rigorous Marxian analysis, but rather he is using Marx‘in an instrumental and heretic fashion, in order to assist in a project that can scarcelybe called Marxian in any traditional sense’ (p 31). The admittance of heresy isintriguing and his approach reveals a prominent characteristic of the collection whichis that many of the contributors engage a variety of critical approaches, either explic-itly or implicitly, and do so in an instrumental fashion. For example, Chimni’scontribution is entitled ‘An outline of a Marxist course on public international law’ buthe draws on other critical perspectives as well in order to achieve certain purposes. Heidentifies the need to offer ‘critical alternative texts’ on international law, because‘[a]lternative stories have to be told, for growing international legal regulation istranslating into injustice for the subaltern classes in both the Third and First Worlds’(p 53). To this end, Marxism has much to offer but other approaches must be drawnupon. Chimni explains how mainstream discussions of international law ‘excludecritical narratives . . . as deviant scholarship unworthy of engagement’ (p 54). To adegree this is changing as more critical approaches are being seen, such as evidenced bythis collection, but there is clearly an attachment to the same old story in internationallaw. Chimni also makes a vital observation for the critical approach, explaining ‘[i]tis . . . not enough to offer critical or interdisciplinary alternative texts. Such texts can becomplicit with power. . . . What is necessary is an ensemble of methods, practices andunderstandings that go to empower the subaltern classes’ (p 55). Too often, criticalapproaches are satisfied with merely pointing out what is wrong, but as Chimnidemonstrates this is not enough as we need to find ways to ensure international lawworks to support particular objectives, such as empowerment and emancipation.

Méiville appears to disagree with this final point coming to the conclusion thatinternational law can only be supportive of imperialist violence (p 132) and denyingits utility as a transformative force. Carty’s essay provides substantial support for thisposition as he engaged in a detailed examination of the USA in the current interna-tional system. Carty concludes that since the USA can no longer ensure its economicsuperiority, it must ensure its power base through force and there is plenty of evidencein support of this assertion. However, can we really accept that all international law isabout imperialist violence? Bowring provides a direct response to Méiville’s con-clusions explaining how in the development of the international law of self-determination, and the Soviet contribution to it, there was a good deal of repressionand imperialist violence, but it also made a major contribution to actually supportingself-determination causes that resulted in greater empowerment. Méiville doesexamine the practice of self-determination and the decolonisation movement but doesnot view these as resulting in radical change but rather they only resulted in furtheringthe dominant capitalist ‘form’.38 However, Bowring shows the dialectical nature of thesituation to demonstrate how the discourse of self-determination in international lawlegitimised and empowered those seeking to remove imperial powers (p 167). Eventhough the legal status of self-determination did not always correspond to the reality

38. A much fuller account is found in C Méiville Between Equal Rights: A Marxist Theory ofInternational Law (London: Pluto Press, 2005).



of practice or the actual material conditions of many groups claiming self-determination, the norm did transform to support those seeking to gain from its coreprinciples.

Méiville’s position on international law emerges from ‘a commodity-form theory’.The commodity-form theory reveals the falsity of the idea of equal participants in theexchange process and uncovers the differences in position and power that exist. Thistheory states that the nature and logic of commodity exchange establishes the legalform and Méiville contends that violence and coercion are always at the heart of thisform due to the fact that the form is based on private ownership which purposelyexcludes others. Cutler also engages with the commodity-form theory in examininginternational trade law. She starts from the position that neo-liberal free marketideology has become the grundnorm for all global economic activity. This, in turn, hasresulted in the global regulation of public services being fetishised in the same waycommodities have been, as explained in Marxist thought. The result is that states areunable to provide social services in order to meet the needs of their society, resultingin further marginalisation and alienation for the subaltern classes because it is theinterests of transnational corporations and business associations that are being sup-ported by the legal system. Cutler goes on to show that the law does have emancipa-tory potential and makes the important observation that law is human made, whichmeans it can be modified or changed in the pursuit of improving the material condi-tions of society.

This latter point has relevance for Roth’s discussion of Marx and internationalhuman rights law. From a Marxist perspective the idea of human rights comes underheavy criticism with Marx having described, in the Critique of the Gotha Programme,rights talk as ‘obsolete verbal rubbish’. Roth grapples with the Marxian position onhuman rights and demonstrates how the Marxist position does not necessarily discardthe entire human rights project but instead provides an effective critique that chal-lenges how we think about human rights in a way that will eventually provide supportfor the project as a transformative force. This theme is also the focus of Okafor’schapter where a reading of Upendra Baxi’s work on human rights39 is provided toshow how a Marxist perspective may be highly critical of the human rights project butat the same time uncover and expose the elements of the law that support emancipa-tion and empowerment.

Marks concludes the collection with a study of exploitation, a theme prominent inthe other chapters and in Marxist theory as well. The Marxist perspective on exploi-tation concentrated on the working class which Marks draws out further to include amuch wider spectrum. Marks attempts to refocus the attention on exploitation to notonly deal with those being exploited as well as those directly responsible for the actsleading to exploitation, but also to call attention to the beneficiaries of exploitation.Marks shows that the issue of exploitation is one about human experience thatinvolves ‘long and complex chains of interaction’ (p 307) and the author believesinternational law is a useful tool in exploring the complexities of exploitation in theinternational system today.

It is clear from this collection that Marxism and its legacies can be invoked in avariety of ways when discussing the nature of law generally and international law inparticular. The world today is a much more complicated place than perhaps Marxunderstood it during his life but it is clear that much of his foundational insightsremain relevant today. This does require greater diversity in approaches and more

39. U Baxi The Future of Human Rights (Oxford: Oxford University Press, 2nd edn, 2006).

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nuanced accounts of the actual material conditions of individuals and societies thatmay not correspond to what may be considered strict Marxist approaches, but thisdoes not lessen the message.40 At the same time, these essays demonstrate it is possibleto derive a core message coming from Marxism that is applicable for understandinginternational law in today’s world; that message is the necessity of viewing society ina dynamic fashion and not accepting the status quo and instead work to support theongoing desire for transformation in the hope of bettering the actual material condi-tions experienced by humanity. The law alone is not going to succeed at this but theessays presented in this collection demonstrate the dramatic shortcomings that arisewhen the law attempts to universalise the human condition through attempting tobelieve that the granting of equal legal rights is the best and most it can do and failingto deal with the actual social and economic conditions being faced. At the same time,it is worth noting that when critical perspectives adopt similar totalising tendencies theeffectiveness of the critique is lessened. For example, Méiville claims that all inter-national law is tied to imperialist violence and it only supports the powerful. But asBowring points out, this is clearly incorrect as there have been transformativesuccesses in international law; an observation that has been backed by studies bothwithin and outwith the Marxist tradition.41 To take Méiville’s conclusion to a logicalend would mean that anyone even remotely interested in human welfare mustreject international law, and those in international law who care about human welfareneed to find another profession.42

Clearly, it is useful to be critical (as well as a bit pessimistic) about the practice ofinternational law as much of its history and application today has been about its useto protect the interests of the powerful. Equally, as many of the contributors show wecannot deny that international law does provide ideas, norms, principles and strategiesthat can be used to support efforts at improving the actual material conditions ofsociety. The victories are small and the setbacks are many but the possibility is there.43

As Chimni explains, it is naive to expect the current system suddenly to turn around,but equally legal nihilism is not an appropriate response as there is the need to find‘creative and imaginative’ uses for international law and institutions in order tosupport the subaltern (pp 90–91). Admittedly, international law is often lacking increativity and imagination which makes critical perspectives, such as this collection,valuable contributions to the discipline. Whether one agrees or disagrees with thevarious contributors, there is no doubt that regardless of perspective these essaysdemonstrate how Marxism is a strong tool for developing more creative and imagi-native approaches to international law.

Dr Richard Burchill44

40. GA Cohen If You’re an Egalitarian, How Come You’re so Rich? (Cambridge: HarvardUniversity Press, 2000) pp 111–112.41. Eg, see EP Thompson Whigs and Hunters: The Origin of the Black Act (London: Penguin,1975); T Risse, S Ropp and K Sikkink The Power of Human Rights: International Norms andDomestic Change (Cambridge: Cambridge University Press, 1999).42. It should be noted that Méiville has done this, as his main occupation is as a fiction writer.43. To use just one random example it would be difficult to say that the Mothers of the Plazade Mayo (Mothers of the Disappeared) in Chile are part of the ruling dominant class but yet theywere able to use the international law of human rights in support of their cause and improvetheir actual life conditions.44. Director, McCoubrey Centre for International Law and Senior Lecturer, Law School,University of Hull.



Documents

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