224 International and Comparative Law Quarterly [VOL.

31

It is no criticism of the way in which Professor van Dyk develops his theme on the international
plane to say that this part of the book (about one half of the whole) is less satisfying than the first
part dealing with national laws and procedures. The circumstances of international society and the
position of international tribunals are sufficiently different from the situation within individual
countries to make any consideration of the possibilities of something in the nature of an actio
popularis in the international field another kind of enquiry from that which is pursued in the first
part of the book. Thus the author admits that within the European Community "the private person
plays only a very humble part in the supervision of the legality of Community action" and, what is
more to the point, he is not intervening on the sole ground of his concern as a member of the public
for the upholding of legality. However, Professor van Dykrightlydraws attention to the fact that in
proceedings brought before the European Court of Justice by Institutions of the Community or by
member States an interest to sue in the interests of the Community is assumed. And in the European
system for the protection of humanrightsa State may bring a complaint before the Commission and
the Commission may bring a case before the European Court of Human Rights simply out of
presumed regard for legality and without having to show another special interest in the issue. So far
as general international law is concerned. Professor van Dyk reaches the conclusion that, as only
States can appear as parties before the International Court of Justice in contentious proceedings,
and as cases which in fact concern the interests of individuals rest on the relevant State's interest in
the welfare of its nationals (the extent to which international law controls the granting by States of
nationality being still an uncertain area), the scope for an actio popularis is limited; jurisdictional
clauses (as in minorities treaties, mandates, trusteeship agreements and I.L.O. Conventions)
expressly or impliedly giving a right of action in the public interest, are by way of exception. The
necessary limits of review make it difficult to do justice to the wealth of authority and argument
provided by Professor van Dyk including analysis of a number of important cases before the
Permanent Court of International Justice and the International Court of Justice, notably
Nottebohm, 1953 (preliminary objection) and 1955 (second phase), South West Africa, 1962
(preliminary objections) and 1966 (second phase), Barcelona Traction, 1970, Namibia (Advisory
Opinion), 1971 and Australia v. France and New Zealand v. France, 1973 (interim protection) and
1974.
In general this an outstanding work of great interest to all concerned in the upholding of legality
nationally and internationally. It is by current standards particularly well bound and printed. But
the price which presumably makes this possible may limit its availability, and it is to be hoped that
the publishers will consider bringing out a less expensive edition which is not virtually restricted to
the very well endowed libraries.
NORMAN S. MARSH

The Limits of Law. By ANTHONY ALLOTT. [London: Butterworths. 1980. xxii and 322 pp. £11.50
(hardback); £7.95 Gimp).]

THE underlying theme of this ambitious work is the extent to which law is and can be
effective as a means of social control. The discussion is conducted in the context not only
of Professor Allott's special field of African law, but also with reference to many other
legal systems, including that of the United Kingdom. It is a book of great interest to the
law reformer, particularly to the expatriate lawyer who is called upon to advise on legal
changes in a developing country, as well as more generally to students of legal theory and of
comparative law. Professor's Allott's conclusion is that the more "advanced"
societies have much to learn regarding the effectiveness of law from the "less
advanced" societies with their customary laws based on consensus and enforced by powerful social
sanctions. The more law, he argues, is introduced into a society the less effective it is likely to be,
especially if that law is the brain-child of an intellectual elite. (' 'Elites'' are cast for a leading role in
Professor Allott's demonology.)
Thefirstchapter asks the question whether there are limits to the effectiveness of law arising from
its very nature. The author first emphasises that what he means by' 'law'' is the law and legal system

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 JAN. 1982] Book Reviews 225
of any given political society, rather than the concept of Law as "the general idea or concept of legal
institutions abstracted from any particular occurrence of them". He defines law in this sense as the
system of norms which seek to achieve the purposes of that society and says that there is no
compelling logical connection between such norms and the sanctions which may or may not
accompany them, nor any necessity to enquire as to whether they are or are not "binding". The
answer therefore to the question initially set in this chapter is that, as law is a "communications
system", it is "subject to various inbuilt sources of weakness which can [never] be entirely
eliminated, whatever we do." However, the relative effectiveness may be ascertained by identifying
the "transmission losses", the inappropriateness for the purpose intended of the message to be
communicated, the failure, for whatever reason, of the norm to be implemented and the extent to
which the impact of the norm on those to whom it was directed has been monitored. It is not easy
within the limits of a review to give a fair summary of the 44 pages of conceptual and verbal analysis
which make up the first chapter. I found myself wondering if they were essential to the general
argument of the book. They give the impression of being included by way of polite obeisance to the
contemporary interest in linguistic analysis.
The next chapter is concerned in the author's phrase "with the sociology of the laws in
operation". He adds the remark: "Weber is the model here for all that is right and much that is
wrong with legal sociology as previously practised." It appears to be the only reference to Max
Weber in the book and is tantalisingly brief for the expert, while meaningless to the beginner. After
classifying laws according to the interest of society in their enforcement (but is it not a somewhat
wild exaggeration to suggest that in England marriage as a legal institution may be "gradually
falling into the same category as suicide or prostitution"—i.e. permitted but without any positive
approval?), Professor Allott seeks to refute the view (which he claims to find in Hart's The Concept
of Law) that the word "law" is not appropriately applied to customary societies without a distinct
legislature and court organisation. I do not understand Hart to say this, but rather that in larger
and more complicated societies law requires not just primary rules but also secondary rules
establishing such instrumentalities as legislatures and courts. The detailed description which follows
of the operation of customary law in a number of African societies is not of course incorrect — it is
in fact extremely interesting — but it is not as significant for laws generally as Professor Allott
implies. In any event, the lesson which he draws from the experience of customary societies is hardly
very new: that their law is kept within a moderate maximum of innovation whereas more developed
societies in the author's view too frequently push legislation beyond "the common range of general
social attitudes."
The third chapter turns to English law of which the author suggests the lay public is largely
ignorant (are the English public peculiar in this?) and with large sections of which they do not
comply (labour law, motoring legislation, laws against squatters are cited), although he admits that
the legal system itself by juries, lay justices and the choice whether or not to prosecute provides to
some extent a means of reconciling the law as actually enforced with popular sentiments.
The fourth chapter discusses the loss of effectiveness of law which arises under the influence of
time or of place. First, the social environment in which a law was originally launched may have
changed. The techniques for overcoming such maladjustment of law and its field of operations are
described, such as the interpretation of terms on a statute by reference to their contemporary usage
(the meaning of "family" for the purpose of protecting an occupier under the Rent Act 1968 or the
standard of conduct required of' 'the reasonable man" in the law of negligence). Secondly, the laws
of one legal system may be applied in a totally different society for which they were never originally
intended. This process of' 'translocation" is discussed at length with particular reference to Kenya.
Pointing out that in regard to that country little use was made of the proviso which would have made
it possible to limit the application of English law to cases where "the circumstances of the
Protectorate and its inhabitants permit," Professor Allott describes the result as a "juristic
enormity'' at which Savigny (who, although only mentioned at this point, appears to be his spiritual
ancestor) "could not but have a fit." The chapter concludes with some brief and rather superficial,
although less unqualifiedly damning, comments on other cases of translocated laws, such as the
Turkish reception of the Swiss Civil Code.
The fifth chapter makes an eleborate comparison between the norms of law and those of religion,
morality and mores and deals with their overlap and the extent to which the last three may

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 226 International and Comparative Law Quarterly [VOL. 31

strengthen or weaken the persuasive power of law. It covers in turn the relationship between law
and Islamic religion, law and Christianity, law and morality (including the place of natural law and
the so-called "right" to disobey the law) and law and social habits (mores) which. Professor Allott
emphasises, even in a non-customary society may render law inoperative or lead to the formation of
new principles of law.
The sixth chapter is the longest (75 pages — too long, perhaps, for satisfactory exposition of its
multiple themes) and undoubtedly the central chapter of Professor Allott's work. It asks the wide-
ranging question: "how far and fast can the legislator go in seeking to change current modes of
behaviour and structures of society?". Within the scope of this review, I can only give examples of
some of the subjects with which the author deals. He begins by comparing different types of
codification. There is the religion-inspired code, such as when Islamic law and religion are
introduced in a previously non-Muslim society. There is the Christian model (or one not contrary to
Christian morals) offered as an alternative to an existing system of indigenous law, as in some
countries of Africa. There are codes which aim at technical improvement with a view to greater
simplicity and certainty, of which the German Civil Code of 1900 and Lord Maca'ulay's draft Indian
Penal Code of 1837 are given as examples. In respect of codes seeking technical improvement the
author points out that they may have unintended side-effects, as in Kenya where "improved" land
laws have, he says, resulted in the creation of a parallel system of rights alongside the formally
registered titles. There are also codes which have popularisation of the law as their aim, although
Professor Allott (with some doubts about the French Civil Code) dismissess this as a delusion.
Another theme dealt with in this chapter is the transformation of societies — not only custom-ruled
societies but also developed ones such as that of England — by the provision of model legal
instrumentalities, nominally optional but which the law-giver wants to be used. Facilities for getting
married, making contracts and forming corporate associations are quoted as examples. Professor
Allott regards such facilities with some suspicion. In the African context he speaks of the
consequent "weakening of the legal powers of the family and community" which "weakened too
their social powers and . . . the reinforcements in morality and religion which went with them." In
the English context he cites the greater facilities for divorce since 1969. The reformers, he says, must
be either knaves or fools (his terms, not mine) if they did not foresee the great increase in the number
of divorces which followed the reforms. . . . The cause and effect relationship is simply assumed
and the question whether the current instability of marriage maybe due to other factors, irrespective
of the laws of divorce, is brushed aside.
In contrast to the indirectly achieved transformation of society by the provision of nominally
optional legal instrumentalities such as forms of marriage or contract. Professor Allott calls laws
' 'programmatic'' which directly aim at unification, modernisation, secularisation or its opposite (as
with the return to Islamic law in Pakistan). He describes in some detail how such programmes have
been carried out in India and Africa. In assessing the success or failure of such programmatic
legislation, he refers to the' 'dismal failure" of the Ethiopian Civil Code in spite of its high status as
an intellectual achievement; to the difficulties (referred to above) of the Kenya land reforms; to the
only limited extent to which a uniform civil code ironing out differences in the personal laws of
Hindus and Muslims has been achieved in India; to the continuing existence in that country of
untouchability as a social fact in spite of its abolition by law; to the possibility that the apparent
success of the Swiss inspired Turkish Civil Code may be undermined by a reversion to Islamic
practices; and finally to the failure (in his view) of the legislation in the United Kingdom against
racial and sexual discrimination, although he admits that their aims may be eventually achieved, not
so much by the legislation, as by accompanying education and persuasion.
In the seventh chapter the author comes back in the particular context of the Soviet Union to the
question whether the laws of a fundamentally unjust society are valid. In so far as I can follow him
(and I am not sure that I understand the place of this chapter in the structure of the book as a whole)
it would seem that Professor Allott considers the Soviet Union to h£a State under the law; but the
law on its face (particularly the penal law) is not the real law, which depends on "crypto-norms" or
perhaps on a single norm reflecting the real source of ultimate power in that State. Law in this sense
is to be distinguished from "legality" which, to the extent that the law is not what the formal law
says it is and is uncertain and arbitrary, is not observed in the Soviet Union.

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 JAN. 1982] Book Reviews 227

The final chapter is concerned with the "common-law wife" (which Professor Allott would call
the "house-mate") and discusses with regard to a number of situations to what extent the English
courts in recent times have put spouses formally married and those living together as man and wife
without such legal blessing on the same basis. The situations referred to include the financial
consequences when persons of different sexes living together split up, the security of occupation
given to the spouse of a protected tenant as a membeT of his or her "family" under the Rent Act 1968
and the position of the endangered spouse under the Domestic Violence and Matrimonial
Proceedings Act 1976. His general predisposition in favour of customary law accounts for
Professor Allott's interest in these developments. "The people," he says, "are making the new
house-mate law; the legislature must now help them to define and regulate it". (Incidentally, it is
curious that he does not, as we have seen, think there was the same obligation on the reformers of
1969 to define and regulate a situation regarding divorce where practice and law were clearly out of
accord). There is however a great deal of difference between a social custom followed by many, but
which is by no means universal (here living together without being married) which may give rise to
questions as to the legal implications of such a shared life, and the suggestion that the custom (or,
strictly speaking, the. people who follow the custom) should determine what those implications
should be. There is more in the problem than defining or regulating an already largely determined
status; it may be that we do not need a single status for the unmarried who live together (as Professor
Allott seems to envisage) but rather in different contexts different rules as to the legal results of
such co-habitation. It cannot be a matter for the co-habitees alone to determine what, for example,
are to be the tax implications following from their living together.
On the cover TTie Limits of the Law is described as "lively and original." The book is certainly
lively, except when the author allows himself to be carried away by his enthusiasm for semantic
distinctions and classifications of concepts. I do not think it can be said to be original in that, as I
have already suggested, Savigny has trodden the same path before. But the note which Professor
Allott strikes — too much law, the dangers of laws imposed by unrepresentive elites, the merit of the
legislative motto "festina lente" and of waiting for the need for change to make itself felt in
pressures on society — and the fullness of its tone, enriched by experience of many systems of law
particularly in the former colonial territories, is rarely heard today, at least in the circle of academic
law reformers. It can hardly be said to be silent in the political field! My appreciation of the book is
however qualified in three respects. First, the arrangement of the book is difficult to follow. The
reader may well become confused by the analysis and classification which is intended to clarify the
intellectual discussion. Secondly, a work whose basic message is the danger of over-confidence and
dogmaticism in introducing new legislation should be careful to avoid them in presenting that
message. The extent to which social change can be effected by legislation will always be a matter of
genuine difference of opinion in the different contexts in which it arises. This leads to my third and
most serious qualification. I detect in the work a tendency to idealise the customary arrangements of
relatively simple societies. The fact is, however, that these arrangements are everywhere breaking
down as at least the material achievements of Western civilisation are increasingly accepted — and
not only by elites — in almost al) societies. That acceptance leads inevitably in some degree to
Western-type laws and legal institutions, as J. M. Roberts has very clearly indicated in the last
chapter of his recent History of the World. What lawyers of Professor Allott's experience and
sensitivity can seek to ensure is that these new laws and institutions are developed with a sympathetic
feeling for the spiritual and social values of the countries where they are intended to operate, jind
also for the non-material ideals of humanrightsand dignity which, as Roberts reminds us, are also a
part of the Western tradition which, often to the embarrassment of the West, has become a world
heritage.
NORMAN S. MARSH

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