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Studies in Contract Law. Edited by B. J. Reiter and J. Swan. Toronto: Butter-
worths, 1980. Pp. xx, 467.
Sunt lacrymae rerum et mentalia mentemn tangunt: Virgil, Aeneid, Book 1, 462.
Contract has come in for a lot of attention recently. New books,
new editions of old books and periodical literature on the sub-
ject abound in England, the United States and Canada. It is
almost as though everyone was busily working to disprove what
Professor Grant Gilmore called “the death of contract” several
years ago. Professors Swan and Reiter of the University of Toronto
have now edited another set of essays on various aspects of the sub-
ject. They have drawn their contributors from several universities,
though most are from Toronto. And it seems that they have
endeavoured, almost heavy-handedly, to attain some sort of internal
consistency in these studies by ensuring that the contributors
adhere to much the same sort of philosophy of law and legal
analysis as they, with the result that there are no significant
philosophical disparities among the ideas advanced. Even the style
of the essays has a vague sameness.
Given this homogeneity among the authors, it is not surprising
to find some overlapping of content and views. However, there is
originality and some common sense in these essays. The well-
informed reader, but not necessarily the beginner, may well derive
profit and pleasure from reading some of these contributions to the
theoretical development of the law of contract, while other readers
may be irritated and antagonized. In some respects these essays
look more like sermons to the converted than attempts to per-
suade unbelievers to accept and practise the new faith.
The influences that have brought about such perceptions can be
identified. Much writing about contract has been critical of the past,
and has attempted to provide new foundations for the future,’ but
leading writers in this vogue, notably Horwitz and Atiyah, have
I Especially Professor Morton J. Horwitz (Harvard University), The Trans-
formation of American Law (1977), ch. 6 (being a revision of The Historical
87 Harv. L. Rev. 917) and
Foundations of Modern Contract Law (1974)
Professor P. S. Atiyah (Oxford University), The Rise and Fall of Freedom of
Contract (1979).
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also been subjected to challenging analysis 2 In the same way; the
contributors to Studies in Contract Law may find that the limbs on
which they have extended their thoughts will one day be cut off
from the tree, leaving them.., who knows where? Some of them
have firmly rejected what may be called, quoting Lewis Carroll,
“Anglo-Saxon attitudes”, in favour of Bostonian, Californian or
middle-American ones. But one should say at the outset that any
serious attempt to produce critical legal writing in Canada is
welcome. The time has unquestionably arrived for Canadian legal
scholars to do more than train future generations of lawyers and
judges. Textbooks, essays and research papers for law reform com-
missions and other bodies have been playing their part recently
in the development of the law in Canada. It is to be hoped that
this trend will continue and flourish. No doubt the contributors to
this book hope that their essays will also operate in this way, if
not upon the judges, then at least upon the thoughts of those whose
task it is to undertake revision of the law.
Study 1, “Contracts and the Protection of Reasonable Expecta-
tions”, written by the two editors, is a rather pretentious introduc-
tion to the entire book, by which I mean that their avowed aims
seem to be too grand and elaborate for a work of this nature. This
particular study purports to lay the foundations for the other
studies by identifying and describing the “basic assumption” that
is said to be common to all the essays in this book:
The assumption is that the fundamental purpose of contract law is the
protection and promotion of expectations reasonably created by contract.
We believe that the law should and does protect such reasonable ex-
pectations and that all ‘contract rules’ are merely specific illustrations
of this guiding principle.3
The appropriateness of the “reasonable expectations” approach is
illustrated by reference to two cases, in which, according to the
authors, it was applied: Hobbs v. E. & N. Railway4 and Davidson
v. Three Spruces Realty.6 To this reviewer, the authors’ discussion of
these cases indicates very much the complaint which they make
themselves against judges at various points in this study, that
reality has been distorted to produce the consequences sought
by the particular interpreter. For example, the authors mention the
treatment by Anderson J. in the Davidson case of the contract “rules”
2 See, e.g., Simpson, The Horwitz Thesis and the History of Contract
(1979) 46 U. Chi. L. Rev. 533, and Baker, Review of Atiyah’s recent book (supra,
note 1) in (1980) 43 M.L.R. 467.
3 Reiter & Swan, Studies in Contract Law (1980), 6.
4 (1899) 29 S.C.R. 450.
5 (1977) 79 D.L.R. (3d) 481 (B.C.S.C.).
McGILL LAW JOURNAL
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which applied to protect the plaintiff –
strict construction, fun-
damental breach, innocent misrepresentation, and unconscionable
or unreasonable attempts to apply the exemption clause in the
circumstances in which the contracts between the parties had been
made.0 Then they say that “Anderson J.’s canvassing of several
technical means of granting the protection is simply proof of the for-
titude with which judges will pursue a conclusion dictated by ‘horse
sense’ “.7 The authors illustrate their criticisms of the failure of
courts to adopt the “reasonable expectations” approach, and the
benefits that would have followed from its adoption, by reference
to the “waiver” cases from Turney v. Zhilka8 on. They reserve
especial disapprobation for the majority decision in Barnett v.
Harrison.0 In the authors’ words, this line of cases illustrates un-
suitable or unsuitably framed rules of contract law and the Way
courts forget or ignore the reasons for which the law intervenes
in contract cases. Reiter and Swan are bold in saying that the role
of contract law is “to enhance the institution of contract, to make
it more stable and reliable, and thereby to increase the pervasiveness
and efficiency of its use in society”,”0 and while the authors’ cri-
ticisms of the “waiver” cases may be justified, it is surely excessive
to suggest that those cases have been condemned “universally”.11
And it is inaccurate to say that the dissent of Laskin C.J.C. irI
Barnett v. Harrison would have had the effect of reversing the
“waiver” cases. The learned Chief Justice knew well the basis upon
which the Turney case proceeded.”2 Further, the answer to the
Chief Justice’s judgment is contained in that of Dickson J.,13 res-
ponding to the suggestion of counsel to reappraise the rule in the
Turney case. The answer may not be to the liking of the authors
of this study, but it is an answer nonetheless.
It is appropriate to dwell for a moment on the aims which the
authors of this study suggest are common to all the essays in the
book.14 One is to develop useful and functional rules that should
6 Supra, note 3, 10.
7Ibid., 11.
8 [19591 S.C.R. 578.
9 [1976] 2 S.C.R. 531.
10 Supra, note 3, 7.
“Ibid., 15. For support they cite Davies, Conditional Contracts for the
Sale of Land in Canada (1977) 55 Can. Bar Rev. 289; Reiter & Risk, Real
Estate Law (1979) 1724; Barnett, Barnett v. Harrison – Unilateral Waiver of
Contractual Conditions Precedent (1976) 3 Dal. L.J. 595.
12Supra, note 9, 541.
131Ibid., 558-60.
14 Supra, note 3, 4-6.
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guide laymen, lawyers and judges. I do not think that these essays
will do very much for the development of the law, and still less
for the guidance of laymen, as even “lawyers and judges” may
have difficulty accepting the “basic assumption” or the conclusions
which the various authors mount on this postulate. The second
purpose is the “consideration of the suitability of the institution of
contract itself in many of the relationships that it governs now.”
But they really only deal with what may loosely be called “em-
ployment” law from this standpoint. 15 The third purpose is “to
begin an investigation of the proper institutions for change within
the law of contract.” They mean, it would appear, whether change
should be by judicial action,; legislation, or “administrative pro-
cesses”, whatever this last category truly comprehends.
Consideration is the subject of the second study, or more
exactly the extent to which consideration is not the real reason
why some litigants win and others lose. The final conclusion of
this essay by Professor Swan is that consideration is not the im-
portant issue, and that legislative reform of the law of considera-
tion may not be the solution to the problem. 6 The “right answer”,
reached after this survey of some problems in the law of considera-
tion, such as the promise to do what one is already bound to do,
and firm but revocable offers, is to let the academics loose to make
proposals foi reform.17 Academic lawyers have their uses, even in
reform of the law, provided that they do not take themselves too
seriously. If law is too serious to be left entirely to judges, as one
distinguished English Law Lord has told us, 8 it is also too im-
portant to be left entirely to academics.
Study 3 is about foreseeability in relation to damages. Pro-
fessor Swinton’s aim is to identify the purposes which the courts
seek to achieve by awarding damages. Four areas are chosen for
investigation: loss of profits and collateral reliance costs, damage
to reputation, mental distress, and physical injury. The identifica-
tion of the key factors and a critical analysis of the way courts use
such factors is intended to improve the predictability of damage
awards and to allow for “more rational development of the bounda-
15 See ibid., Studies 4, 9 & 10.
1 Ibid., 59. It is interesting to compare Professor Swan’s essay with the
elegant and succinct discussion of the problem of consideration by Pro-
fessor John P. Dawson in Gifts and Promises (1980), 197-230.
17 Supra, note 3, 59.
18See Miliangos v. George Frank (Textiles) Ltd [1976] A.C. 443, 481 (H.L.)
per Lord Simon of Glaisdale.
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ries of contract damages”. 19 It makes for interesting, if sometimes
frustrating reading, but it also brings out fairly clearly some factors
considered relevant by the courts. One is left at the end with the
feeling that the author has endeavoured to make what is a reason-
able analysis of some important issues conform to the contours of
the editors’ “basic assumption”, the test of reasonable expectations.
A different aspect of remedies is discussed in Study 4, which is
concerned with the way labour arbitration can point to a better
handling of breaches of contract. The distinction is drawn between
transactional and relational contracts.2 0 The author concedes that
the former, traditional type of contract, may appropriately be dealt
with by actions for damages, although even here it is argued that
specific performance may be a better method for ensuring a satis-
factory result in the event of a breach.2 1 Relational contracts (e.g.,
collective agreements) do not lend themselves- quite so easily to the
invocation of the traditional common law remedy of damages. Nor
does the concept of privity, so vital in transactional exchanges, sit
well with the figure of a relational contract. Professor Brown’s
contention is that the law of contract does not cope adequately
with such contracts, particularly collective agreements: “[the legal
system plays a relatively minor role in relational arrangements
because these exchanges generate their own socio-economic sup-
port.”‘
2 What the author is indicating in this Study, as pointed
out by the authors of Study 1, is that the law of contract is not the
best medium for dealing with such important legal and economic
relationships.
Employment is also taken up in Study 9 by Professor Beatty
and Study 10 by Professor Swinton. In the former, with the in-
triguing title, culled from the Treaty of Versailles, “Labour is not
a Commodity” 3 the author launches a further attack upon the
relevance of modern contract law to the “institution of employment”.
He perceives2 4 “a lack of coincidence between the law of contract
and the general understanding of employment”, described in the
first part of the essay. This is a piece which considers many
1aSupra, note 3, 69, 90-1. Hence, perhaps, the author’s rejection of the
views of Cooke J. of the New Zealand Supreme Court as set out in Re-
moteness of Damages and Judicial Discretion [1978] Camb. L.i. 288.
20 Supra, note 3, 96. The author admits (p. 95, n. 3) that much of his study
in this respect is drawn from MacNeil, The Many Futures of Contract
(1974) 47 S. Cal. L. Rev. 691.
21 Ibid., 100-7.
22 Ibid., 119.
23 See ibid., 324, n. 21.
24 Ibid., 326.
1981]
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different fields of thought, including economics, sociology, philo-
sophy, morality and law. The whole is a melange of what must now
be regarded as fashionable socio-economic comment upon law. The
author’s “simple” point, with which he concludes, is that “the
commodification of labour that is the distinguishing characteristic
of the contract model of employment is understood to have adverse
consequences for both of the variables which define the focus of our
social policy.”2 5 Those variables are the personal aspect and the
personal interest. He appears to be intimating that an employer
should not be allowed to terminate unilaterally an employment
relationship without just cause or redundancy, unless the employee
is placed in “another comparable employment relationship”. 6 There-
in lies the way to “industrial democracy”. Therein may also lie
the way to industrial ruin.
A more traditional, technical approach to much the same problem
is contained in Study 10, which is an analysis of the law of wrongful
dismissal. The terminus ad quem is much the same as in Study 9.
But the start of the inquiry is, of course, the basic “assumption”
from Study 1.
What are the reasonable expectations with regard to termination of
employment in unorganized workplaces? Probably the response of most
employees would not even be that they expected reasonable notice prior
to termination. Many would be surprised to know that they were not
employed at the employer’s discretion. The significance of this lack
of information should not inevitably lead to reading out the reasonable
notice term in the employment contract.X
Why not? Because the basic assumption may not apply to all con-
tractual situations 8 Reasonable expectation is a good standard to
apply unless it does not achieve the end result desired by the
authors of these studies. Then abandon it and find something more
attuned to what is wanted. So here the author concludes that it
might be aided by the invocation of other standards: “judicial
creativity, in the form of protection against dismissal without cause,
is necessary to bring the employment law regulating unorganized
workers into harmony with community needs.”29
It is ‘pleasant to turn from these occasionally turgid discussions
to the more elegant, and possibly more traditional contents of
Study 5, which is about “Specific Relief for Contract Breach”. The
author, Professor Sharpe, is concerned with the way the law relating
25Ibid., 355.
26 Ibid.
271Ibid., 363.
28 Ibid.
29 Ibid., 377.
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to specific performance, injunctive relief, and “equitable” damages
has been developing in recent years, and with the idea that such
remedies should be more flexible and more concerned with the
“interests involved” and “a sensitive appreciation of the policies at
stake when remedial choices are made”.30 It may be queried whether
the “basic common law policy” is “against wasting resources”.”
This suggests, as the author’s study does generally, too great an em-
phasis upon economic arguments or reasons for granting certain
remedies and choosing one over another. Admittedly the author
belongs
to what may be termed “la nouvelle vague” of legal
authors, whose approach to law derives more from Posner and
the Chicago school2 than it does from Paley, for example, whose
influence on English contract has been pointed out most recently
by Professor Atiyah.3 Granted such progenitors, however, this
author and several others in this book may have taken their en-
thusiasms a little too far. Notwithstanding such criticism, this
particular essay throws an interesting light upon an area of the
law of contract that is not often subjected to sufficient analysis
and discussion, even in books devoted to contract law.
Perhaps even more traditional in nature is Study 6, “Restitution
for the Part Performer”, by Professor Waddams. It analyzes the
law, subjects it to critical comment, reveals its inconsistencies and
gaps, and suggests new approaches, culled in part from the cases
themselves, textbook writers, and general principle of law. It is
clearly written in a style which enables the reader to grasp with
ease the nature of the subject-matter, the author’s train of thought,
and what it is he is proposing. The author favours reform of the
law so as to entitle a party who has not completed performance ‘of
his side of a contract to recover a benefit conferred by him upon the
other party. In this respect much is made of the Degiman case.3 4
But that was a very different type of situation. The author attempts
to argue that even if the nephew in that case had been in breach of
contract he ought not to have been deprived altogether of his right
to restitution.3 5 There is a source of difficulty here, I would
o Ibid., 150.
31 Ibid., 141.
32 Hence the: general reliance upon, and manifold references to Kronman,
Specific Performance (1978) 45 U. Chi. L. Rev. 351.
33See The Rise and Fall of Freedom of Contract, supra, note 1.
34 Deglman v. Guarantee Trust Co. of Canada [1954] S.C.R. 725: see supra,
note 3, 169-74.
15 In this respect he appears
to equate breach of contract with the
situation which now obtains when a contract has been frustrated without any
fault by either party, but surely there is a distinction” that can and should be
made.
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BOOK REVIEWS – COMPTES RENDUS
suggest. Why should we accept that someone who, ex hypothesi, is
at fault should be entitled to anything at all? To some extent the
present law benefits certain kinds of such wrongdoers, in certain
circumstances. Need we go further? To swallow the notion that we
should is not easy.
The reader of Study 7, “The Allocation of Risk in the Analysis
of Mistake and Frustration”, by Professor Swan, can have little
doubt, from the very first words onwards, that he is being present-
ed with a radical outlook on the law. To Professor Swan, the issue
of mistake in the law of contract is as much a question of “risks”,
how they should be analyzed and disposed of by courts, as it may
well be an integral part of the law of frustration.3 6 Undoubtedly
mistake and frustration (or perhaps what is a better word in this
connection “impossibility”) have elements
in common. The one
relates to the situation as it was when the contract was made, the
other to a subsequently developing or emergent situation. In both,
the issue for a court is how to determine whether a purported con-
tract is still binding upon the parties. Professor Swan prefers to
regard this question in both situations as depending upon a further
question: which party should bear the risk of the contract’s en-
forcement or avoidance? He opts, in some circumstances, for the
solution of “splitting the difference”.3 7 This approach, which has
been suggested judicially and extra-judicially in this and other con-
texts, such as where stolen goods are sold by the thief to an inno-
cent third party,3s has been largely rejected. Some recent cases
suggest the possibility of such “splitting” in some cases of contract
by the invocation of the doctrine of contributory negligence and the
statutory provisions relating to comparative fault or apportion-
ment of liability or blame29 This a different thing, however. It is
not blame or fault that is at stake, but “risk”, and it is not a
question of comparing the conduct of the parties, but deciding for
36Professor Swan cites (p. 184, n. 12) a passage from the judgment of
Buckley L.J. in Amalgamated Investment and Property Co. Ltd v. John
Walker & Sons Ltd [1976] 3 All E.R. 509 (C.A.), seemingly to support his
proposition with respect to mistake. But the passage cited deals with the
situation in relation to frustration. Note also that the promised later analysis
of this case in this study cannot be found, at least by this reviewer.
37 Supra, note 3, 213-5.
38 E.g., Twelfth Report of English Law Reform Committee, Cmnd 2598
(1966).
39 See and compare Caine v. Bank of Nova Scotia (1978) 90 D.L.R. (3d) 271
(N.B.S.C., App. Div.); Husky Oil Operations Ltd v. Oster (1978) 87 D.L.R.
(3d) 86 (Sask. Q.B.); Palermi v. Littleton [1979) 4 W.W.R. 577 (B.C.S.C.);
Henuset Bros Ltd v. Pancan Petroleum Ltd (1977) 82 D.L.R. (3d) 345 (Alta
S.C., T.D.); Giffels Associates Ltd v. Eastern Construction Ltd [1978) 2 S.C.R.
1346; Smith v. Mclnnis [1978] 2 S.C.R. 1357.
McGILL LAW JOURNAL
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the parties ex post facto what would be a reasonable solution that
they could have agreed for themselves in advance had they given it
any thought. Naturally, the “risk” approach is intimately involved
with the editors’ “basic assumption” that the law should give effect
to the “reasonable expectations” of the parties. The one is as much
an artificial construction or concept as the other. What the author
has endeavoured to do is to subject some older mistake and frus-
tration cases.4 0 and some modern ones,4 1 to an analysis and dis-
cussion that is designed to establish the desirability and utility of his
approach. In the course of this, as one might expect, he rejects some
well-established principles and ideas, such as Lord Atkin’s “identity”
test in Bell v. Lever Bros.4 He appears to be calling for a very dif-
ferent type of approach by the courts, one that would invite and
require counsel to introduce new kinds of evidence in some cases,
if not all, to show what are “normal” business expectations and
understandings. It is, implicitly, if not expressly, part of his case
that the classical view of proving the content and meaning of a con-
tract is a hindrance to a proper treatment of litigation.4 3 One might
agree with his strictures on the parol evidence rule, without ne-
cessarily going so far as to accept that his attitude towards mistake
and frustration is a better one, more capable of solving problems.
Whether or not it is may depend upon the eventual acceptance
of the view that “the court must always put the contract into its
context and attempt to forward the parties’ intentions”.44 But, as
Professor Swan goes on to admit, “if a dispute has arisen, it may
be inevitable that one party’s expectations will be defeated, but
there is often no escape from that.”45 Agreed. What, then, becomes
of the desire and purpose of effectuating the “parties” expectations?
The first thing that should be said about Study 8, “Contracts,
40 See U.S.A. v. Motor Trucks Ltd [1924] A.C. 196 (P.C.); Norwich Union
Fire Insurance Soc. Ltd v. W. H. Price Ltd [1934] A.C. 455 (P.C.); Sherwood
v. Walker 66 Mich. 586 (1887); Krell v. Henry [1903] 2 K.B. 740 (C.A.); Bell
v. Lever Bros [1932] A.C. 161 (H.L.); Smith v. Hughes (1871) L.R. 6 Q.B. 597.
4
1 See Toronto-Dominion Bank v. Fortin (No. 2) (1978) 88 D.L.R. 232 (B.C.
S.C.); Solle v. Butcher [1950] 1 K.B. 671 (C.A.); Magee v. Pennine Ins. Co. Ltd
[1969] 2 Q.B. 507 (CA.) (on which see also Marsh, Mistake in Contract. A
Comparative Approach to an English Decision Miscellanea W. J. Ganshof
Van der Meersch (1972), 855); Capital Quality Homes Ltd v. CoIwyn Con.
struction Ltd (1975) 9 O.R. (2d) 617 (C.A.); Victoria Wood Development Corp.
Inc. v. Ondrey (1978) 22 O.R. (2d) 1 (C.A.); McMaster University v. Wilchar
Construction Ltd [1971] 3 O.R. 801 (H.C.); Imperial Glass Co. Ltd v. Conso-
lidated Supplies Ltd (1960) 22 D.L.R. (2d) 359 (B.C.C.A.).
4 2 Supra, note 40, 217; see also supra, note 3, 212, n. 126.
43 Supra, note 3, 197, n. 71.
44 Ibid., 232.
46Ibid.
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Torts, Relations and Reliance”, is that it is far too long. Professor
Reiter has magnified the subject-matter beyond its natural propor-
tions, and he has indulged in analysis and criticism of certain cases
as though they were of world-shattering importance, capable of
altering the entire concept of the law, when in fact they are only
stepping-stones on the path of legal development. Much of it seems
to be unnecessary. For example, do we still have a problem of what
the author terms “‘pre-contract’ torts”?46 Or of “concurrent liability
in Contact and Tort”?47 I suggest that a careful reading of recent
authorities in several jurisdictions (e.g., the Alberta case of Canadian
Western Gas Co. Ltd v. Pathfinder Surveys Ltd48 ) will reveal that
the author has to a large extent set up straw men to be knocked
down in order to prove his point. His “principle of liability in
Contract and Tort”49 is stated as involving two propositions:
(1)
when the defendant ought reasonably to appreciate that a person
such as the plaintiff might reasonably rely to his detriment upon
the defendant’s words, acts or other communications, liability ought
to be imposed; (2) so ought it to be imposed when the defendant
should realize that a person such as the plaintiff might reasonably
entertain particular expectations and the defendant should ap-
propriately be held responsible for satisfying those expectations.
These vague generalizations are put forward to supplant the law of
contract and the law of tort, or in the latter perhaps just the law
of negligence, for it hardly seems likely that Professor Reiter is
suggesting that we abandon the law of defamation, conspiracy, in-
ducing breach of contract, and so forth. (Or is he? It must be said
that one never knows with some of the writers in this book just
how far they are willing and prepared to go.) The author then
proceeds, in the next section of this study, to consider some “limits
on the liability”. Predictably, this involves him in a consideration
of “reasonable reliance and expectations” (the basic assumption
of Study 1 rendered applicable in this context) and “discretion in
remedies”. Under the first heading, the author discusses various
factors which might be “strongly suggestive” to a court “of the
desirability of legal intervention”.50 Under the second,51 he con-
46 Ibid., 259.
47 Ibid., 263.
48(1980) 12 A.L.R. (2d) 135 (C.A.): cf. Morgan, The Negligent Contract-
Breaker (1980) 58 Can. Bar Rev. 299. See also Ross v. Caunters [1980] Ch. 297,
which is not cited by Professor Reiter, although the similar case of Whit-
tingham v. Crease & Co. (1979) 88 D.L.R. (3d) 353 (B.C.S.C.) is discussed
on p. 308.
49Supra, note 3, 242.
50 Ibid., 251
51 Ibid., 252-8.
McGILL LAW JOURNAL
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siders the problem of identifying the type of action that might be
available to an injured party. In this respect he is very much
occupied with the problem of giving a remedy for “innocent mis-
representation”, and with the way the law has changed since the
decision in the English case of Esso Petroleum v. Mardon.2 He
states at one point:
The problem remains, in theory: the law has not yet accepted in ex-
press
liability
will be imposed on a defendant where reasonable reliance is engendered
in a party whom the defendant should know will rely in this manner.63
terms the proposition proposed above that relational
In practical terms, he appears to be saying that this is what the
courts are doing. He objects to their refusal to put this in theoretical
terms. But is this the case? Have the courts not in effect stated
such a proposition, although not in the terms proposed by Pro-
fessor Reiter? What about the law of negligent misrepresentation,
and the law of warranties? Is Professor Reiter objecting to the
techniques of the law rather than the actual decisions? Several
times he agrees with the way courts have decided cases (sometimes,
as with Northwestern Mutual Insurance Co. v. J. R. O’Bryan & Co.
and Thibeau,54 he does not) even though he does not accept the
methods employed by those courts. He argues that developments
in recent times “foreshadow a melting together of many strands
of tort and contract as the courts recognize that liability is imposed
by law in each case and that there is considerable latitude in de-
fining the relationship, its legal incidents, and the rights of parties
when things go awry” 5 So far so good, but the author goes on to
say that these developments of which he has been speaking “will
require us to reconsider many doctrines once regarded as fundamen-
tal in both contract and tort.”‘ 6 Doctrines are continually being
reassessed and redefined. That is not to say that contract and
tort are gradually, and inevitably, merging into one amorphous mass
of “obligations”. I see no reason why there will not have to continue
to be some distinction between contract and tort at least for some
purposes. For some considerable time the law has not been be-
devilled by the niceties of procedure or the need to separate too
carefully contract situations from those giving rise to possible
tort liability. But some of Professor Reiter’s “spurious” problems, 7
52 [1976] Q.B. 801.
53 Supra, note 3, 256.
54 (1974) 51 D.L.R. (3d) 693 (B.C.C.A.).
55 Supra, note 3, 256-7 [emphasis in the original].
56 Ibid., 257.
571Ibid., 311.
1981]
BOOK REVIEWS – COMPTES RENDUS
thrown up by the rationalization of civil liability, may still be with
us. These are not, it may be suggested, “pesky” doctrinal problems,
as Professor Reiter calls them 8
The purpose of Professor Trebilcock’s Study (No. 11), “An
Economic Approach to the Doctrine of Unconscionability”
is to
show that “only a judicial doctrine of unconscionability grounded
in sound economic considerations is likely, over the long run, to
prove a coherent and manageable tool of intervention in contract
enforcement.”‘ 9 It would seem that the author is by no means a
devotee of judicial intervention on grounds of unconscionability.
The doctrine may have its uses, for example, in redressing trans-
actional inequities flowing from what he calls “situational mono-
polies”, that is, where there is duress of an economic kind, as in
salvage cases. However, he is not keen on broad use of the doctrine
that appears to have been developing in recent years, a development
which he sketches in the opening section of this study.”1 I find
myself generally speaking in sympathy with this attitude, although
perhaps not for the same reasons, nor from the same data-base as
the author. I agree with him that there are dangers in “too in-
tuitive a notion of distributive justice”‘
(a reason for his criticism
of the decision of the House of Lords in Macaulay v. Schroeder
Publishing Co. Ltd 2). Professor Trebilcock is quite convincing
when he reveals how the decision in that case is hardly justifiable
on a proper, economic analysis and how the House of Lords reached
its conclusion on what must have been “gut-based” thinking, even
though their Lordships purported to found their approach upon
“economic” considerations. In other areas too the author demon-
strates how the courts have tackled the task of providing reasons for
their intervention without accurate economic analysis, indeed with
inaccurate analysis. All that this indicates to me is that economic
reasoning is a poor basis for judicial decisions, unless you have a
court that is composed of experts. Even then, as we all know,
different economists think differently: which school, therefore, is
to be taken as correctly enshrining the economic tenets upon which
“proper” decisions are to be based? 4 Indeed, when Professor Tre-
58 Ibid.
59 Ibid., 421.
60 Ibid., 392-6.
41 Ibid., 381-90.
(2 Ibid., 421.
63[1974J 1 W.L.R. 1308 (H.L.): see pp. 396-404.
64 See generally Atiyah, No Fault Compensation: A Question That Will
Not Go Away (1980) 54 Tul. L. Rev. 271, 279 and Leff, Law And (1978) 87
Yale LJ. 989, 1007-8.
McGILL LAW JOURNAL
[Vol. 26
bilcock is discussing the constraints that should and do apply to
the application of the doctrine of unconscionability in cases of
“informationally-impaired markets”, 5 he appears to be putting into
economic language what courts almost instinctively do after cen-
turies of familiarity with such problems. There may be some ad-
vantage in describing or analysing what the courts are doing in
novel language and ascribing to the courts ability to cope with their
problems from the standpoint of the “economic man”, as con-
trasted with the “reasonable man”. I am not sure that any ad-
vantage to be gained outweighs the disadvantage of forcing lawyers
to learn a new kind of grammar, a different vocabulary, and an
impossible syntax.
The core of Professor Belobaba’s interesting, well-written and
thoughtful study (No. 12: “The Resolution of Common Law Con-
tract Doctrinal Problems Through Legislative and Administrative In-
tervention”) is to be found in this passage: “The critical area for re-
search and study in the next decade will be the legislative and
regulatory process. The common law is in decline, the transition to
a purely legislative legal system seems inevitable”. 6 While the
author agrees with some remarks of Professor Waddams” as to
the general ability of the common law to grow and to tackle new
problems, he does not agree with the latter’s conclusion that le-
gislation is unnecessary, yet he does concede that legislative inter-
vention will be necessary in what he calls “the commercial con-
text”.88 It will be vital in “the consumer context”. 69 Does that mean
that the earlier cited remarks of Professor Belobaba are valid? Or is
he inferring that they are limited in scope to the narrow area of
consumer contracts? He admits himself that he is not as yet
settled in his attitude towards the question of whether the courts
are the appropriate forum to determine fundamental values, since
they are “a non-elected, non-representative institution”. 70 To what
extent, however, in any real (as opposed to formal or structural)
sense, are legislatures any more representative? If it may be ne-
cessary for us to trust legislatures, or else “democracy” will not
work, why not also trust the courts? In the Anglo-Canadian tra-
dition judges are appointed on some basis of ability and merit
rather than only for the purposes of enshrining the particular point
of view of a narrow minority or a group of the population. I am
65 Supra, note 3, 404-19.
66 Ibid., 450.
67 Waddams, Legislation and Contract Law (1978) 17 U.W.O. L. Rev. 185.
68 Supra, note 3, 437.
69 Ibid., 439.
70 Ibid., 449.
1981]
BOOK REVIEWS – COMPTES RENDUS
touched by Professor Belobaba’s faith in legislatures and admini-
strative and regulatory bodies. He, in turn, criticizes those, in-
cluding myself, who lack his faith, when he says that the “mere
mention of administrative regulation causes many Canadian lawyers
and academics to clutch their hearts, dust off their Dicey, and begin
a ritual lamentation about the disintegration of the Rule of Law.””
Nonetheless, it is a point of view that is argued with verve and
reason, with style, and from a basis of considerable expertise in
recent statutory developments in the field of consumer law. To say
that one is not prepared to accept unquestioningly Professor
Belobaba’s arguments or conclusions is not to say that one is en-
tirely opposed to all legislation or to all codification. But it does
mean that one must examine carefully whether reform of any
particular areas of law need to come about in that way. There may
be some middle ground between the faith of Professor Waddams
and the creed of Professor Belobaba. If so, we should be looking for
it.
These last few essays do not seem to propound with quite the
same uncompromising attitude as found in the earlier ones, the
approach that is founded upon the editors’ “basic assumption”. By
way of contrast they appear to be more inclined towards attacking
what Professor Belobaba terms72 “the mythological capabilities” of
the common law. There is, one suspects, a certain “mythology”
about the notion of “reasonable expectations” that is intrinsic to the
Swan-Reiter approachY3 What they may be said to be suggesting is
a somewhat psychological approach to the law of contract, one
that does not entirely accord with the historical development of the
common law. The common law has always been much more down
to earth, even “realistic” in its own way, than some of the writers
of the studies in this book would be prepared to acknowledge. But
the common law’s realism, I suggest, is not necessarily the same
as the “realism” of, for example, Professor Belobaba. Common law
judges who, after all, must have had some experience of the ways
of the world of commerce, may be presumed to have some ac-
quaintance with what goes on in the world outside the limited and
limiting boundaries of. the law courts. From that experience they
may have distilled some understanding of what the law should be
about, and how the law should cope with actual problems. The
usual arguments about the difficulties of conducting law reform by
71 Ibid., 454.
72 Ibid., 461.
73 Cf. the criticism of 90 of the First Restatement of Contracts 1932,
which was the progenitor of much of the recent espousal of this view of
contract (Eisenberg, Donative Promises (1979) 47 U. Chi. L. Rev. 1, 19-26).
McGILL LAW JOURNAL
[Vol. 26
means of rendering decisions in haphazard litigation cannot be re-
futed with complete satisfaction. However, that is not to say that
the courts as may be conceived of as being opportunity to effect
such changes as may be conceived of as being necessary in order
to achieve substantial justice.
The real argument, I suggest, does not concern ways and means:
it concerns attitudes and directions. In other words the dispute
takes the form of settling the lines on which the law should be
moving. The writers of these studies, naturally enough, have their
point of view. They will perhaps forgive a reviewer who does not
go all the way, and sometimes even part of the way, with them.
The various authors whose contributions have been considered may
be said to belong to a school of thought which places great
reliance upon a particular approach to the law. That approach is
inclined towards the view that everything can be resolved by a
gradual process of rational, demystifying analysis, which takes into
account what those for whom the law is created want out of law.
They have a belief in the inherent rationality of man, such that one
has only to point out certain arguments, based, for example, upon
economic or sociological “facts”, for everyone to accept the validity
of the conclusions that follow.74 In this respect, as also in the un-
derlying idea that the law is not a subject for “myth” and “magic”
but a much more hum-drum, mundane affair, they are exponents
of the Benthamite tradition. Their critical approach to some of the
issues dealt with in this volume, like that of Bentham, reveals an
essentially antagonistic attitude to the spirit of Blackstone. 5 They
are far from being laudatory of the common law. They appear to
regard the common law of contract as being in a state of con-
siderable disarray, waiting for the adoption of more reasoned and
reasonable doctrines, along the lines these authors indicate. There
is nothing wrong with being critical nor with making suggestions
for future development. These authors, I suggest, are rather hyper-
critical. They tend toward the revolutionary. They sometimes sug-
gest that, in some of its attitudes and developments, the common
law of contract is slightly ridiculous or, at best, archaic and out of
touch. With some trepidation I venture to put forward the idea
that the authors of these studies have “myths” of their own. The
“basic assumption” seems to me to involve far too much psychology.
It would require the courts to place great emphasis upon discover-
74,Cf. Gilmore, The Ages of American Law (1977), 99-100 and Leff, supra,
note 64, 1010. See further, Ackerman, Private Property and the Constitution
(1977), especially pp. 10-20.
75 See Posner, Blackstone and Bentham (1976) 19 3. of L. & Econ. 569.
19811
BOOK REVIEWS – COMPTES RENDUS
ing what parties really meant or understood at the material time
they contracted. And, in the final analysis, would it produce a better
result or a more “realistic” solution of problems? What the courts
do now is to combine the attempt to discover what was the true
nature of the bargain between the parties, seen in the light of
its context, with the application of legal policies that are intended
to give effect to what the courts believe will be a reasonable, work-
able, and suitable law of contract. They may not always succeed in
achieving either or both of these aims. When that occurs we may
argue that a particular court has come to a “wrong” decision. At
least there is some purpose to the behaviour of the courts that is
consistent with the underlying nature of judicial legislation and
the interpretation and application of the law. To replace this by
some more general, supposedly “people-oriented”, approach to the
law of contract, would, I suggest, invite perhaps a less “mytho-
logical” system of rules into the courtroom, but also a less certain,
less secure system.
Moreover, can a legal system survive, or survive in a satisfactory
way without some degree of “mythology”? The past two hundred
years have seen the consequences of Bentham’s revolt against Black-
stone. We may have simpler, faster procedure: laws which are
attuned to a more humanitarian, populist approach to law; doc-
trines which purport to enshrine and give effect to a more liberal,
rational attitude. In terms of the impact and effectiveness of the
law, have we really advanced? Or have we undergone some re-
gression?
G.H.L. Fridman*
* Professor of Law, University of Western Ontario.
McGILL LAW JOURNAL
[Vol. 26
The Equal Protection of the Laws. By Polyvious G. Polyviou. London: Duck-
worth, 1980. Pp. xiv, 757.
[N]or shall any state deprive any person of life, liberty or property, with-
out due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws. –
from the Fourteenth Amendment to the
U.S. Constitution.
Mr Polyviou is University Lecturer in Law at Oxford and author
of several books on the Greek-Turkish conflict in Cyprus. With
this new book he has turned his attention to the more abstract issue
of the equal protection of the laws, primarily in relation to the Four-
teenth Amendment to the Constitution of the United States. For
Canadians, this book appears at an opportune time, given the keen
national debate over the entrenchment of a bill of rights in a new
or recycled constitution. While much argument in this country has
focused on language rights, relatively little has concerned the rights
to equality and to freedom from discrimination, and as a result the
meaning and scope of these cardinal principles remain uncertain.
Polyviou’s lengthy review of the U.S. Supreme Court’s interpre-
tation of the Equal Protection Clause in the Fourteenth Amendment
may provide useful hints as to the path Canadian courts would follow
in interpreting similar constitutional guarantees.
But Mr Polyviou did not have a Canadian audience in mind
when his interest in the subject developed in the early seventies. He
was responding to the needs of tribunals in Cyprus and other new-
ly independent Commonwealth nations, where inadequate law libra-
ries make the study and interpretation of constitutional bills of
rights rather difficult. The author hoped his book would serve as a
comprehensive monograph on the jurisprudence of Equal Protection
that would constitute both a full exposition of the substantive law of
equal rights and a guide to some of the principles, trends and problems
relating to the endlessly controversial topics, so fruitfully discussed
during recent years, of judicial review of governmental action and the
discharge of the function of constitutional adjudication (p. xi).
With this two-fold approach Polyviou attempted to synthesize a vast
and often contradictory jurisprudence into a manageable handbook
for those not well versed in the literature of equal protection.
The American experience is the principal source. Eleven of the
thirteen chapters deal with the application of the American Equal
Protection Clause to racial and economic classifications, with
specific emphasis on the criminal process, the right to vote, educa-
tional desegregation and general consideration of relevant classifica-
tion and affirmative action. Individual chapters focus on Canada
and India, while -ppendices touch on electoral apportionment in
Australia, anti-discrimination legislation in Great Britain and the
19811
BOOK REVIEWS – COMPTES RENDUS
European Convention on Human Rights. But this is not a com-
parative book. Indeed, each chapter is largely independent of the
others, little effort having been made to contrast interpretations
of the equal protection concept in various nations, or even among
diverse fields of legislative activity in the United States. Given the
several nations discussed, a valuable contribution is therefore lost.
Polyviou’s sole reference to foreign jurisdictions in his discussion
of the American situation is to the system adopted in most Scan-
dinavian countries which provides for the appointment of counsel
for indigents.
Polyviou distinguishes between “equality before the law” and
“equal protection of the law”, a distinction that is perhaps more
apparent than real. He equates the former with the Diceyan view
that each individual is subject to the ordinary law of the land as
applied by the ordinary courts of justice. This suggests that equality
is primarily a procedural concept, roughly equivalent to the “equal
application of the law to all to whom it extends”, and that it is
caught by the larger notion of due process. By contrast, the author
understands “equal protection of the law” as embodying an implicit
guarantee that all groups of individuals would enjoy similar, but
not necessarily identical, treatment. The accuracy of this neat dicho-
tomy must be questioned. In Canada especially, one must take issue
with the continued adherence
to a strict Diceyan notion of
“equality before the law”. Section 1 (b) of the Canadian Bill of
Rights’ guarantees the enjoyment of certain human rights and
fundamental freedoms without discrimination, amongst them “the
right of the individual to equality before the law and the protection
of the law”. In the landmark decision of R. v. Drybones2 Ritchie J.,
speaking for a majority of the Supreme Court, rejected the con-
tention that equality before the law was analogous to “equal ap-
plication of the law”.’ His Lordship reversed his position almost
four years later in the Lavell case,4 holding that section 1 (b) was to
be interpreted in light of Dicey. Polyviou joins in the chorus of
those who in doctrine and later jurisprudence find this an im-
proper interpretation of the phrase
‘ S.C. 1960, c. 44; R.S.C. 1970, Appendix III.
2 [1970] S.C.R. 282.
3 Ibid., 296-7.
4A.-G. Canada v. Lavell [1974] S.C.R. 1349.
5 See, e.g., Laskin CJ.C. and Beetz J. in A.-G. Canada v. Canard [1976] 1
S.C.R. 170; Tarnopolsky, The Canadian Bill of Rights, 2d ed. (1975); Tarno-
polsky, The Canadian Bill of Rights and the Supreme Court Decisions in
Lavell and Burnshine: A Retreat From Drybones to Dicey? (1975) 7 Ottawa
L. Rev. 1; Hogg, The Canadian Bill of Rights –
“Equality before the Law”
(1974) 52 Can. Bar Rev. 263.
McGILL LAW JOURNAL
[Vol. 26
That statutes of universal application are few, that governments
must classify, and that laws necessarily differentiate between those
affected and those not, lead ineluctably to the crux of the problem
of judicial enforcement: what test can the courts use to distinguish
between laws that offend the principle of equal protection and those
that do not? Apart from the introductory and concluding chapters,
where notions of equality and the role of the Supreme Court are
discussed, Mr Polyviou is not at all concerned with the underlying
philosophical question, but simply with judicial interpretation of
the principle.
He shows that the solution of the U.S. Supreme Court has been
a two-step reasonable classification test. First, the Court determines
whether the law in question pursues a permissible state purpose
and, second, whether its classifications are “rationally related” to
that purpose. The standard for such a determination varies from
the extremely strict test of “compelling state interest” for classifi-
cations which are prima facie suspect, such as race, where the link
must be “necessary and essential”, to the more lenient “basic ration-
ality” measure of non-suspect classifications that has been applied
to state financing schemes for public education. In the latter case
the classification must, to be ruled unconstitutional, be wholly irre-
levant to the legitimate purpose. Extracted primarily from the re-
newed importance placed on the Equal Protection Clause in the
spate of cases since Brown v. Board of Education of Topeka and
clearly stated in Powell J.’s opinion in San Antonio Independent
School District v. Rodriguez, 7 this structure continues to evolve
with the development of a moderate approach in other recent
cases.8
Undoubtedly a constitution must be interpreted more broadly
than ordinary statute law so as to allow the courts to meet un-
foreseen difficulties; but the words must be given their proper
force. One may discern that American courts have developed a
multi-level approach to the problem of legislative differentiation
dependent upon the subject matter of the statute. The unavoidable
issue is whether the Supreme Court, in attempting to realize the
elusive ideals of justice and equality, has forsaken the canons of
reasonable construction. The chequered history of the Fourteenth
Amendment illustrates the highly political role forced on the Court
6347 U.S. 483 (1954).
7411 U.s. 1 (1973).
8 Especially Reynolds v. Sims 377 U.S. 533 (1964). See also Frontier v.
Richardson 411 U.S. 677 (1973); Weinberger v. Wiesenfeld 420 U.S. 636 (1975);
Mathews v. Lucas 427 U.S. 495 (1976).
19811
BOOK REVIEWS – COMPTES RENDUS
in this area and the sort of temptations that induced Presidents
Roosevelt and Nixon to “pack” the Bench. The book, in describing
the American Supreme Court and the Australian High Court’s ap-
proach to apportioning electoral districts, supplies the material
for an interesting contrast in judicial habits of law-making. The U.S.
Supreme Court read the Fourteenth Amendment as providing a
principle of one man –
one value, thus requiring
electoral districts to contain roughly an equal number of consti-
tuents; the Australian High Court read the Constitution and attend-
ant legislation narrowly, and rejected the principle.9 Mr Polyviou
is not oblivious to these controversies concerning the role of the
courts in society but it is disappointing that he reserves his brief
discussion of them to the conclusion.
one vote –
Although the author has done his research thoroughly, the
absence of analysis is the book’s greatest weakness. With approxi-
mately 2,700 footnotes, few, if any, cases or commentaries dealing
with the Fourteenth Amendment are overlooked. The legal reason-
ing of the Supreme Court on the selected topics is set out in detail.
Writing a good introductory text, however, like good teaching,
depends in large measure not so much on what one puts in, but on
what one chooses to leave out. Polyviou is not very discriminating,
and prefers to repeat arguments rather than situate them in context
and examine them. The critical reader must supply most of the
effort himself.
The strengths and weaknesses of this work are best reflected in
the treatment of guarantees similar to the Fourteenth Amendment
in India and Canada. The provisions of the Indian Constitution are
not common knowledge in the West and Polyviou’s explications of
article 14 and related articles are therefore enlightening. Indian
tribunals have apparently followed closely American precedent in
giving the relevant provisions meaning although they display greater
reluctance to stray from traditional methods of interpretation.
Polyviou shows, however, that the Indian Supreme Court’s formalis-
tic approach appears to be waning as broader American concepts
of state action permeate the case law. Articles 15, 16 and 17 of
the Indian Constitution prohibit most forms of discrimination, but
contain certain provisions of particular interest. First, article 17
abolishes “Untouchability” and forbids its practice. A closer look
at the application and enforcement of this imperative would have
been illuminating. Second, articles 15 and 16, concerning non-dis-
crimination, explicitly reserve the right of the government to make
9 See A.-G. Australia v. Commonwealth (1975) 7 A.L.R. 593, which is con-
sidered by Polyviou in Appendix Three.
McGILL LAW JOURNAL
[Vol. 26
special provision for women, children or “for the advancement
of any socially and educationally backward class of citizens”. 10 As
American courts have furthered affirmative action programmes by
reading similar ideas into the Fourteenth Amendment, a deeper
exploration of the Indian case law might again have been worth-
while.
Readers in Canada are likely to have a deeper knowledge of the
Canadian Bill of Rights. Not being constitutionally entrenched, it
presents the courts with problems of conventional statutory inter-
pretation and implied repeal. Polyviou’s presentation of the Su-
preme Court’s treatment of the Bill is adequate but does not offer
the detail or insight necessary for serious investigation. He deline-
ates the major issues –
the applicability to law existing at the
time of the Bill’s passage, the scope to be extended the “equality
before the law” clause, and the paramountcy of the Bill vis-&-vis
inconsistent legislation –
and sets out well the Supreme Court’s
approach to them, especially with regard to the Indian Act.”1 As
with the American jurisprudence, one questions the amount of
thought Polyviou accords the cases and issues raised. His study
rehearses the arguments of the commentators, especially Hogg
and Tarnopolsky, and of the courts. For example, Ritchie J. in
Lavell is cited as authority for the idea that most of the Indian Act
concerns the lives of Indians on reserves. Polyviou also makes the
blanket statement that “[pirovisions dealing with the conduct of
Indians off reserves and their contacts with other Canadian citizens
fall into an entirely different category” (p. 149). Those familiar
with the case will recognize that this contention, expressed by
Mr Justice Ritchie, is far from settled. Similarly, the treatment of
the issues raised by Drybones and possible grounds for distinguish-
ing it amounts to little more than judicious paraphrasing of state-
ments by subsequent panels in Lavell and Canard (p. 153).
The appendices serve varied and uncertain purposes. The first
offers a brief glance at equal protection provisions enshrined in
the constitutions of other nations and divides them into global
equal protection guarantees and non-discrimination safeguards.
Appendix Two reproduces the previously discussed articles of the
Indian Constitution and Appendix Three deals with the Bakke
10 For the text of the Constitution Act of India, see Blaustein & Flanz,
Constitutions of the Countries of the World (1980), vol. 7, and especially
in matters of
arts 15(4) and 16(4) regarding equality of opportunity
public employment.
11 R.S.C. 1970, c. 1-6 as am.
1981]
BOOK REVIEWS – COMPTES RENDUS
case. 2 Appendix Four cursorily examines the aforementioned High
Court of Australia’s opinion regarding electoral apportionment.
Appendices Five and Six treat vast subjects and are somewhat
more problematic. Appendix Five is primarily concerned with British
race relations and sex discrimination statutes. The provisions of the
two main acts are summarized but little is said about judicial
enforcement or the lack thereof. Racial animosity is an espe-
cially contentious issue in Great Britain in relation to immigration,
yet no mention is made of the Immigration Act 1971, to which the
courts have decided these acts are inapplicable. 13
Appendix Six examines article 14 of the European Convention
on Human Rights, and the scope accorded it by the European Court
and Commission. Again, the problem is that of trying to cover an
enormous field in far too few pages. This article, providing for
the enjoyment of rights without discrimination, has been the sub-
ject of intensive scrutiny, primarily in the Belgian Linguistics Case4
which Polyviou deals with only briefly.
The book also suffers from stylistic maladies that make it un-
necessarily awkward. Interminable sentences and unending para-
graphs
increase the’difficulty of comprehending a convoluted
subject. The author states (p. xii) that the only way to enjoy the
rich flavour of the explication of the Fourteenth Amendment is
through extensive quotation of judicial opinion. Polyviou strings
together short snippets of quotations using connecting words or
phrases rather than using excerpts to set forth the law and the
legal reasoning behind it.1 His understandable desire to be as
current as possible leads the author to incorporate into discursive
footnotes discussions of cases, like Bakke and Weber,’6 that ap-
peared just prior to publication. These serve more to distract than
inform.
One final drawback cannot escape mention: the index, only five
pages long, is ridiculously inadequate and practically worthless.
An extensive, accurate index is essential for any serious work but
even more so for an introductory text of such length. “Canada” is
12 Regents of the University of California v. Bakke 438 U.S. 265 (1978).
“3See, e.g., R. v. Immigration Appeal Tribunal, Ex p. Kassam [1980] 1 W.L.R.
1037 (C.A.), in which it was held that the Sex Discrimination Act 1975 did not
apply to the Immigration Act 1971, and leave to appeal was refused.
14 Case relating to Certain Aspects of the Laws on the Use of Languages
in Education in Belgium (1968) 11 Y.B. Eur. Cony. on Human Rights 832.
‘5 Cf. Laskin, Canadian Constitutional Law, 4th rev. ed. (1975).
16 United Steelworkers of America v. Weber 443 U.S. 193
(1979).
McGILL LAW JOURNAL
[Vol. 26
found between “compelling state interests” and “conclusive pre-
sumptions”, both of which direct the user to other headings.
Despite its flaws, The Equal Protetion of the Laws remains a
valuable piece of work. The main concepts, competing ideas and
important cases are all sufficiently presented. At the end of each
chapter or important section the author appends an excellent
summary of its contents. The reader desiring an overview of
judicial interpretation of equal protection before the laws, parti-
cularly as it applies in the United States, can certainly obtain it,
so long as he is aware that the treatment may at times be super-
ficial.
Mitchell Wigdor*
* LL.B. III, McGill University.
1981]
BOOK REVIEWS – COMPTES RENDUS
The Law in Classical Athens. By Douglas M. MacDowell. Ithaca: Cornell
University Press, 1978. Pp. 280.
The author of this book is not a lawyer but a scholar of ancient
Greek literature, and so the book is intended primarily, for the
general reader who is interested in the social and moral life of
ancient Athens. But The Law in Classical Athens is also a book that
deserves a place on any lawyer’s reading list. The reader will
discover that ancient Athenians confronted many of the same legal
issues that arise today,-and frequently resolved them with proce-
dures and remedies that are similar to those in modem law. Some-
times their responses
to these problems were imaginative and
-worthy of our practical consideration. This book also has many bits
of ancient legal lore that are enjoyable merely for the discovery:
* for example, the destruction of olive trees was strictly regulated,
and the death penalty could be imposed for the destruction of
certain sacred trees.
Professor MacDowell notes at the outset (p. 8)
the paucity
of sources available to the scholar:
Ancient Greek law is a fragmented and elusive subject for study. Every
city-state had its own laws; no doubt there were similarities and some
states copied laws from others, but we should never assume without
evidence that any particular rule was shared by two different states.
And often the evidence is lacking. Even for Athens, the state about
which we know most, we have only a limited number of texts of actual
laws. Our chief source of information is the texts of about a hundred
law-court speeches, in all of which the speakers are arguing on one side
of “a case, so that their statements about the law are tendentious and
incomplete. These have to be supplemented by allusions in comedy,
history, philosophy, and other literature, which have their own difficulties
of interpretation.
Although the materials are fragmentary by comparison with the
large corpus of Roman law, the author has assembled his sources
carefully and judiciously to form a coherent view of his subject.
The book has three major divisions: growth of the legal system,
scope of the law, and legal proceedings. Professor MacDowell con-
centrates on everyday legal problems in the classical period of
Athenian life. Extended discussion of constitutional law and the
philosophy of law has been deliberately omitted, and this is un-
fortunate.,
The author begins by tracing the development of the jury system
in Athens. Democratic juries played a large role in the administra-
tion of Athenian justice. Jurors had a great deal of responsibility, in
as much as there was no appeal from their verdict. Even though
jury panels were quite large by our standards, empanelling a re-
McGILL LAW JOURNAL
[Vol. 26
presentative cross-section of the population was a challenge that
was not consistently met. To ensure representation of the poorer
elements of society, the government paid jurors a daily fee for their
service, but low pay attracted the elderly and discouraged younger,
able-bodied men with good jobs.
Athenians stressed the importance of a written legal code. Laws
were” written in wood or stone and exhibited in public places – part-
ly, it seems, to reflect the Athenians’ view of law as a physical object.
But, because this ancient people realized that no code could an-
ticipate all possible situations, jurors were sworn to decide cases
“according to the laws and decrees of Athens, and matters about
which there are no laws I will decide by the justest opinion” (p.
44). It is regrettable that Professor MacDowell does not say more
about the relationship between the code and “the justest opinion”
in the administration of Athenian justice.
The Athenians had an unusual attitude toward legislation which
was inconsistent with prior laws. One who proposed such legisla-
tion was subject to criminal prosecution. Upon conviction, he was
punished, and his law annulled. Inconsistency was rooted out rather
than allowed to supersede the earlier law.,
Professor MacDowell presents a particularly lucid account of
the transmission of property from one generation to the next. Each
man was the head of a household, which he was obliged by
religious custom to deliver to the next generation. Thus, the de-
ceased’s property automatically passed to his son or to his sons
equally. If he had no male descendants, the property could pass to
a daughter, but only to hold, under the watchful eye of a male
guardian, for eventual transmission to her son. The deceased’s wife
could not inherit. Gradually, the practice developed whereby one
might adopt a son by will. The will could not disinherit male de-
scendants, nor could it foreclose the possibility of eventual inherit-
ance by the son of a daughter. Adoption by will was not meant to
displace the descent of property through male descendants, but
merely to make the system work for those who lacked male des-
cendants. This device was often susceptible to over-reaching. Ac-
cordingly, the law invalidated an adoption by will if the “testator”
made his will “when out of his mind because of madness or old
age or drugs or sickness, or under the influence of a woman, or
compelled by force or restriction of liberty” (p. 101).
Religious beliefs also had an effect upon the law of homicide.
Punishment served two ends familiar to the modern lawyer: de-
terrence and vengeance, but religious purification was also ex-
tremely important. An unpunished killer would invite divine retri-
1981)
BOOK REVIEWS – COMPTES RENDUS
bution on the community at large if the community took no steps to
bring him to justice. The citizen accused of unlawful homicide
could not set foot in public or sacred places, such as the temples
or the market, and, like Oedipus, he was viewed as a pollution in
the land. Unless he violated this prohibition upon contact with the
community, the accused would not be imprisoned to await trial.
Flight from Athens and life in exile, albeit self-imposed, were con-
sidered as terrible a punishment as death itself. If the accused en-
tered public places, he would be imprisoned and tried for this as a
separate offence. One case involving this doctrine illustrates the
subtlety of ancient legal thought. The accused was exempt from
prosecution for murder because of a general amnesty for all crimes
committed before a certain date, but he was prosecuted on the
ground that he had entered public places after that date. Not-
withstanding the amnesty, he remained a murderer and continued
to pollute the community.
In his discussion of homicide Professor MacDowell, who wrote
an earlier book on Athenian homicide law, makes a judgment with
which I disagree: he finds the Athenians’ “distinction between
intentional and unintentional homicide … crude, by our standards”
(p. 115). By his reading of Athenian law, intent to injure the victim
could support a charge of intentional homicide if the victim died,
even though the accused had no intent to kill. On the contrary, if
the intended harm was of a serious nature, the Athenians correctly
allowed no distinction between intent to kill and intent to harm,
provided that death resulted. In theory, the distinction may exist,
but in practice the two states of mind are difficult to separate.
Modern criminal codes reflect the treatment of this issue in Athenian
law and impose murder liability for less than an intent to kill.
Athenians adopted rigorous standards for the conduct of public
officials and employed unusual procedures to implement these
standards. Making a false promise to the people or to a public body
was a capital offence, as was receipt of a bribe from foreign
enemies to speak to the Athenian people. Each public official’s
conduct was examined monthly; if found wanting, he could be
dismissed. When his term of office expired, his performance in
office, particularly his handling of public funds, was automatically
subjected to a formal public inquiry. If found guilty, he could be
assessed heavy fines that would disenfranchise him and his family
until he made restitution.
The book concludes with a discussion of procedure and evidence.
The author recounts a particularly chilling aspect of Athenian
evidence law. A slave could not testify in legal proceedings, but
McGILL LAW JOURNAL
[Vol. 26
his out-of-court statement could be accepted into evidence if ex-
tracted under torture. The truthfulness of such a statement was
perversely thought to be enhanced by the means of its extraction.
I wished that the book had been somewhat longer, and parti-
cularly that it had included a concluding chapter of general observa-
tions. But this is only a mild criticism of a sound piece of scholar-
ship that is also a delight to read.
William H. Theis*
* Professor of Law, Loyola University of Chicago.
