BOOK REVIEWS
COMPTES RENDUS
The New Family and the New Property. By Mary Ann Glendon. Toronto: Butterworths,
1981. Pp. xvii, 269.
In attempting to understand the relationship between family law
developments in a number of industrial countries and broader legal, social
and economic changes, Mary Ann Glendon has set herself an extremely
complex but quite fascinating task. Given the vast scope of this undertaking,
it is scarcely surprising that in many instances, arguments are sketchy,
conclusions indefinite, and developments merely described rather than
analysed or related to other developments. It is gratifying, however, that the
book provides many useful, though tentative, insights into the very broad
questions explored.
Glendon begins by describing the “new family”, and the legal rules which
govern it.
The ‘new family’ is a convenient way of referring to that group of changes that
characterizes 20th century Western marriage and family behaviour, such as increasing
fluidity, detachability and interchangeability of family relationships; the increasing
appearance, or at least visibility, of family behaviour outside formal legal categories;
and the changing attitudes and behaviour patterns in authority structure and economic
relations within the family. It follows from these changes that the new family is no
family in the sense of a single model that can be called typical for modern industrialized
societies. The new family is a concept that represents a variety of co-existing family
types.’
Although Glendon focuses on family law developments in the United
States, comparisons are made with the situations in England, France, West
Germany and Sweden, with passing references to other countries. 2 She
concludes that there has been an attenuation of bonds linking an individual
to the wide kinship group which constituted the pre-modem family. The
decision to marry now rests with the individual, not parents or other
relatives. Succession rights have increasingly recognized the claims of the
surviving spouse at the expense of “family lines”. Western society has seen
the rise of the “companionate marriage”, with its strong emotional and erotic
ties, but relatively weak economic and legal links. The modem marriage is
I M. Glendon, The New Family and the New Property (1981), 3-4.
2 A much fuller treatment of comparative issues is found in an earlier book by M.
Glendon, State, Law and Family: Family Law in Transition in the United States and
Western Europe (1977). See also J. Eekelaar, Family Law and Social Policy (1978).
McGILL LAW JOURNAL
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easy to enter, and also relatively easy to leave. In some jurisdictions, such as
Sweden and Washington State, there is a legal right to unilaterally terminate
a marriage; in others, this right is generally recognized in practice and the
granting of a divorce is only rarely the subject of contested litigation.
Furthermore, the links between parents and their offspring are becoming
attenuated. The parental right to discipline and educate children has been
weakened as a result of state involvement; schools,
television and
community organizations have to a large extent supplanted parents as
shapers of children’s characters and values. The recognition of the rights of
“psychological parents” has reflected a weakening of the legal significance of
the biological tie and an increasing fluidity in family relationships.
One of Glendon’s central themes is that the basic unit of society has
become the individual rather than the family. Society has come to accept the
notion that “the family exists for the benefit of the individual, rather than the
individual existing for the benefit of the family”. 3 The family has become less
important as a source of financial and social support, with increasing
reliance being placed on government and employment related benefits.
There has been a steady erosion of the old idea that each spouse, or at
least the husband, has a continuing economic responsibility for the other
after divorce. Spousal support is no longer viewed as a right of an “innocent”
party, but rather as an exceptional claim based on need, and it is in practice
awarded in relatively few cases. While there is theoretically a universal
obligation to support children, in all jurisdictions there are enormous
practical problems with enforcement. When a spouse, usually the husband,
leaves children in one family he often enters a new one and cannot
realistically support the children in the first family. Even if a non-custodial
parent has the requisite financial resources, experience shows that child
support orders are difficult to enforce.
There is considerable divergence among legal systems in the treatment of
rights to property on divorce. Historically, mostjurisdictions tended to have
regimes of separate property or of community of property, but recently there
has been a tendency to adopt schemes giving the courts relatively broad
discretion to disregard legal title and divide property in a fair manner, taking
various circumstances into account. In remarks which should be of interest
to readers in Canada, where all the common law provinces have recently
enacted regimes based on varying degrees ofjudicial discretion, Glendon has
argued against such “equitable distribution”. Rather, she recommends that
“the rule of choice should be the old community property rule of equal
division limited to property acquired by gainful activity during the marriage,
3 Supra, note 1, 36, quoting Sussman, The Family Today (1978) 7 (No. 2) Children Today
32, 35.
19821
BOOK REVIEWS
in the absence of agreement to the contrary.” 4 Glendon bases her argument
on convenience and predictability, and on the desirability of avoiding the
vagaries and expense of the adversarial system, though she totally ignores
the litigious issues which can arise in connection with the valuation and
replacement of exempt assets, and the tracing and mixing of capital and
labour. The author recognizes that one of the arguments in favour of a
scheme based on judicial discretion is that a division of assets may be made in
a way which minimizes the possibility that a former spouse will become a
charge on the public treasury. But she asks rhetorically whether it is “likely
that, if divorce were routinely contemplated by marrying couples, they
would intend.., that a judge should be authorized to range over all their
property, however and whenever acquired, and divide it as he sees fit?”5 In
making her argument against schemes based on “equitable distribution”,
to the legislative restrictions which
Glendon gives no consideration
structure a court’s discretion in dividing matrimonial property.
Glendon argues that the primary concern in dividing marital property
real estate, financial assets,
has historically been with “old property”-
stocks and other traditional forms of wealth. For increasingly large numbers
of people, however, the principal type of wealth is “new property”, 6
consisting of a profession or employment and such work-related benefits as
pensions and insurance, and for others in claims against the government. As
Glendon notes, in many American jurisdictions, considerable imagination is
shown in dividing such forms of wealth as pension rights, disability
payments, goodwill in a business and licences to practice a profession.
Considerable attention is devoted to the transformation of the role of
law and government in family life. Upon the dissolution of a marriage, one
looks more frequently to public law for sources of support in the form of
welfare, day care and public housing. Glendon argues that the traditional
private law approach of family law is becoming relatively less significant. In
the subsisting family unit, potential caretakers are leaving the home to enter
4 Supra, note 1, 63. This is basically the scheme which has been adopted in Quebec.
Spouses are deemed to have a “partnership of acquests”, unless they enter into a marriage
contract and make alternate arrangements; in particular legislative provisions are made for
the selection of a regime of “separation as to property”. See the Civil Code of Quibec, art.
463-524.
5 Supra, note 1, 65.
6TIe term “new property” was made current by Charles Reich, The New Property
(1964) 73 Yale L.J. 733 and The Greening of America (1970). Glendon states, supra, note 1,
3: “Reich suggested… that, for most people, their employment or profession, and work
related benefits such as pensions, have come to be the principal forms of wealth, and that, for
many others, claims against government are the main source of subsistence. Reich argued
that these new forms of property, such asjobs or entitlements, are not only our chief forms of
wealth, but are also the bases of various statuses in our society and that, as such, they should
be accorded legal protection analogous to that which our legal system has offered to more
traditional forms of wealth.”
REVUE DE DROIT DE McGILL
[Vol. 27
the labour force in search of “new property”, and the state is coming to share
support functions with the family. At the turn of this century, there was a
unitary legal conception of the family. The law defined appropriate conduct;
the family was patriarchal and marriage-centered with the wife serving as
primary care-taker; divorce was granted only for serious cause. Modern
family law is more neutral and much less ambitious about promoting any
given set of values about how family life should be organized. Gradual legal
recognition has been given to unmarried cohabitation; legitimacy is no
longer of much legal importance; homosexual parents can obtain custody of
their children.
One of the issues Glendon addresses is whether the state can and should
have a role in strengthening families. Real difficulty arises in determining
appropriate policies and obtaining funding. Further, the ways in which
various government policies and laws interact are complex and extremely
difficult to predict. Perhaps a more fundamental problem is that such family
behaviour seems very resistant to state control; for example, the incentives
given in several states, particularly Eastern European countries, to increase
birth rates have had very little impact. One program which is apparently
advocated in this book is an income maintenance policy. Although Glendon
admits that such a policy might tend to increase the divorce rate, “income
maintenance furnished by the welfare state at more adequate levels might
enable many families to function better by removing a major source of
strain”.7 More significantly, such a policy would reduce the “risks” of family
life and divorce which one spouse, usually the woman, bears by devoting
substantial time to caring for children.
After discussing the rise of the “new family”, Glendon turns her attention
to the “new property” -employment
and government provided benefits.
Although generally not alienable, this kind of “wealth” is receiving greater
legal protection and is becoming the principal form of economic security for
most individuals. It is argued that we have seen the virtual demise of the
common law rule that an employer has a unilateral right to terminate
employment. As a result of employment standards legislation, civil service
regulations, unions, collective bargaining and arbitration procedures, it is
becoming more difficult for an employer to fire an employee. Even the
common law has changed; for example, some American courts have
imposed a standard of good faith and fair dealing in employee dismissal
cases. On the other hand, employees are less willing to leave their jobs;
concern about loss of security, pension rights and other financial benefits, as
well as a fear that one’s experience and specialized training may not be useful
elsewhere, have tended to bind workers more closely to theirjobs than in the
past. Thus, the employer and employee are becoming tied to one another to
a greater extent.
7 Supra, note 1, 137.
1982]
COMPTES RENDUS
Having considered the new family and the new property, Glendon poses
the central problem dealt with in the book:
As family relationships become more fluid, entry into and exit from them is less formal.
Entry into and exit from the labour force, however, is becoming more standardized….
It is hard to know what to make of the apparent exchange of values through which legal
norms governing the workplace are increasingly particularistic and personalized,
looking toward the continuation of the relationship with adjustments on both sides;
while legal norms pertaining to the family are becoming universalistic and neutral,
facilitating ‘discharge’ and ‘replacement’ when performance does not come up to
standards or expectations.8
In attempting to determine
two
developments in the last part of the book, Glendon’s argument becomes
sketchy, tentative and in places somewhat confusing. Certainly, she never
-establishes a clear connection between these developments.
– .
the relationship between
these
Glendon does suggest
that both developments are part of a
transformation in the field of private law in general, with emphasis
increasingly being placed on official regulation of private arrangements and
a concomitant replacement of former areas of private law by administrative
law. Furthermore, she sees an expanded role for individualized judicial or
administrative discretion in particular cases.
A concern is expressed that the attenuation of family ties and the
strengthening of ties to employment relationships and to the government
expose the individual to impersonal corporate and state bureaucracies.
Glendon questions whether we are entering an era of “feudalism of new
property”, with individuals subject to domination by rigid and all-powerful
bureaucracies. She suggests that an analogy to feudalism is inappropriate, as
feudal relations were essentially personal, while in the modem era relations
are between individuals and organizations. The book concludes by
suggesting that we are in a period which might be characterized as one of
“obscure and profound gestation”.9 The future may see the bleak “iron
cage” of conflict, terror and bureaucratic domination of the individual, or a
“golden chain” of human development. Although the author expresses
optimistic sentiments, no particular reasons are offered for believing that one
outcome is more likely than the other.
On the whole the book makes interesting and worthwhile reading.
Glendon’s approach is comparative: she contrasts the past with the present,
traces developments in various countries and draws on the approaches of
different social sciences. Indeed, a major weakness of the book is that too
many comparisons, digressions and comments are offered. So many ideas,
themes and developments are discussed, that it becomes difficult to follow
8 Ibid., 199.
9 Ibid., 245. Glendon quotes from a description of the twelfth century in M. Bloch, Feudal
Society (1961), 119.
McGILL LAW JOURNAL
[Vol. 27
central arguments. To take one example, one wonders whether a rather
lengthy excursus into trends in landlord-tenant law really added much to the
book.’ 0 Another criticism which may be made is that Glendon not
infrequently overstates her case, perhaps for provocative effect. For
example, she writes:
Once in place, the welfare bureaucracy cannot perform its job so as to wither away; it
needs the welfare clientele. As production jobs move to poor countries, the only ‘job’
left to many citizens is to submit to the ministrations of the helping professions.”
Arguably, such a polemical statement is virtualiy impossible to prove or
disprove. A more serious flaw is that little effort is made either to
substantiate this statement or even to explain its meaning and significance.
Though there are no express references to Canadian developments, readers
can make their own comparisons. It is in general quite remarkable how
much similarity there is between legal developments in different countries.
In fact, one of the more intriguing comparisons in the book is between
developments in the United States and the Soviet Union; it is suggested that
there will be a “partial legal convergence”, with long-term similar tendencies,
but some continuing differences.’ 2
Nicholas Bala*
10 Supra, note 1, 176-185.
” Ibid., 235.
12 Ibid., 203; see also pp. 133 and 213.
* Of the Faculty of Law, Queen’s University.
1982]
BOOK REVIEWS
Anticombines and Antitrust [,] The Competition Law of Canada and the Antitrust Law of
the United States. By R.J. Roberts. Toronto: Butterworths, 1980, Pp. xxx, 799.
The literature on competition policy in both Canada and the United
States continues to represent the most significant example of the interaction
of legal and economic thinking and practice to be found in any of the
growing fields where these disciplines now intersect. Keeping up to date with
the literature in this area has become an exhausting experience for lawyers
who must familiarize themselves with the concepts and jargon of economics
and for economists who must learn the art of reading a case and interpreting
a statute with a serious degree of professional skill. Indeed, one of the ironies
of this long record of inter-disciplinary activity in the anticombines-antitrust
field is that economists have had little hesitation about pretending to speak
knowledgeably on law while lawyers have had equally few inhibitions about
occasionally pretentious incursions into sophisticated areas of economic
thought.
Mr Roberts’ volume is an attempt to analyse all of the major questions in
the field as well as the less visible but equally important issues of “resale price
maintenance”, “misleading advertising” and the many others that now make
up the family of the proscribed business practices in the present legislation.
The author has interwoven discussion of American and Canadian cases
whenever they lend themselves to comparison. The book does not attempt
to deal with both systems independently but rather describes their respective
legal policies and methods and how these relate to each other as techniques
for the control and policing of competition. Some idea of the nature of Mr
Roberts’ approach will be gathered from the main structure of the book
itself. Part A provides an overview – history, policy and the constitutional
road blocks to enforcement. Part B, which deals with criminal prohibitions,
includes chapters on monopoly, relevant market, conspiracy or agreement to
limit competition, mergers, price discrimination, predatory pricing and re-
sale price maintenance. In Part C there is an introduction to the civil review
provisions of the Canadian Act, non-price vertical restraints, foreign
disruptive conduct, and the civil review provisions of the Stage II
amendments (now to be replaced by new proposals). Part D provides
chapters on regulated industries and labour unions. Part E embraces trade
associations and the professions. Part F covers enforcement and remedies in
criminal offences, enforcement and remedies that are administratively
reviewable, private, class and substitute actions and, finally a program of
information and compliance as well as additional civil powers of the
Director of Investigation and Research.
The larger policy issues are on the whole successfully broached. Mr
Roberts goes a long way toward providing a certain basic minimum of
knowledge about the economic debate with which every lawyer in the field
REVUE DE DROIT DE McGILL
[Vol. 27
will have to come to terms. For example, he explores the issues raised by the
Report of the Economic Council on Competition Policy which had so great
an influence on the legislative debates of the 1970s and indirectly, perhaps,
on the Supreme Court of Canada itself.
Hence the book presents us with perhaps the most complete statement of
other and even more recent
the Canadian situation in print -despite
monographs dealing with Canadian competition legislation and policy.
in
the major Canadian
The Canadian literature in this field is neither as highly developed nor as
impressive as that of the United States. Only a handful of articles had
appeared
law journals before 1950. Not
unexpectedly, Canadian economists gave more thought to issues involving
competition than lawyers did during this period and the Canadian Journal
of Economics and Political Science (as it then was), and other economics-
business publications, produced far more important writing in this area.
Issues in competition and anticombines policy, which had lain dormant
during World War II, were once again brought into focus in Canada by the
work of the McQuarrie Committee and the publication of its Report in 1949-
50.1 A special issue of the Canadian Bar Review2 devoted to it had a
considerable influence on the debate which followed some of the important
changes in the Combines Investigation Act3 resulting from the Committee’s
recommendations.
Later, the 1960 amendments to the Act also raised issues of substantive
and technical importance. 4 Perhaps the most important of these was the
merger of the Criminal Code5 provisions with the Combines Investigation
Act to provide a single source of legislative definition for loose-knit
multifirm combinations,
their conspiracies and collusive behaviour
involving, eg. price-fixing, market-sharing and the controlling of market
entry. However, the questions raised in the 1960s began to address issues
dealing with more than merely legal technique. By the end of the decade new
concepts were being formulated which involved a re-examination of the very
basis of what now came to be called “competition policy”, replacing the older
anticombines/ antitrust terminology in the Canadian debate.
A body of case law decided essentially between 1923 and 1960, which
commenced with R. v. Elliott6 in 1905 and was first based on the relevant
I Canada: Department of Justice, Report to the Minister ofJustice [,] Committee to Study,
Combines Legislation, (1952).
2(1952) 30 Can. Bar Rev. 549.
3 S.C. 1952, c. 39, amending R.S.C. 1927, c. 26.
4 S.C. 1960, c. 45, amending R.S.C. 1952, c. 314 and S.C. 1954, c. 51.
5 S.C. 1960, c. 45, ss. 12, 17, 19, 21, 22, 23.
6(1905) 9 O.L.R. 648 (C.A.).
1982]
COMPTES RENDUS
regard
reasonably workable with
Criminal Code provisions and then on the Criminal Code and Combines
Investigation Act operating side by side, provided a set of principles that
proved
loosely-defined
combinations offences.
Indeed, it can be argued that most of the
prosecutions of multifirm conspiracies after 1925 were successful because
none were undertaken unless the evidence was preponderantly favourable to
the Crown based upon the precedent judgments over the years. These
judgments in general seemed to suggest that once it was proven that an
“agreement” among members of the industry covered about 75 per cent of
the market, that was enough to justify the requisite finding of an “undue”
limitation of competition.
to
the
This amounted to a Canadian version of the Americanperse doctrine –
not nearly as simple as that stated in s. 1 of the Sherman Act7 -but
nonetheless able to provide results similar to these reached by American
courts, albeit without the same degree of refinement. Hence, before Aetna
Insurance8 and Atlantic Sugar,9 conspiracies and combinations seemed
subject to a predictable enforcement process -at
least to most Canadian
students.
In the 1960s the debate between government, industry and academics
focused on the clearly perceived need to meet the growing complaint that
competition policy in Canada simply did not have a good answer to the
merger/monopoly problem.
the general variety of devices
developed both in the McQuarrie Report of 1950 and in the amendments
made to the Act in 1960-to which should be added the proscription of
retail price maintenance and the earlier prohibition of price discrimina-
tion – altogether failed to meet the many continuing problems of intrusions
upon competition to which a free enterprise system was, at least in theory,
devoted.
Indeed,
These and other considerations led to the draft bills introduced in the late
1960’s and again throughout the 1970s. Not only did civil servants and
scholars repeatedly point out the clear inadequacy of the merger/monopoly
provisions of the existing law and its application by the courts, but the
climate of expectations in the business community was also changing.
During the period between 1939-45 co-operative business behaviour was
legitimized for purposes of a maximum “war effort”. This disciplining of
competition to the point of its virtual elimination, thereby reducing the
normal insecurity of the market place, appealed to many businessmen and
even to some labour leaders. Perhaps a more important development,
however, was that some deeper insights were being reached with respect to
7 Act of July 2, 1890, c. 647, 26 Stat. 209, 15 U.S.C. 1-7 (1976).
8 Aetna Insurance Co. v. The Queen [1978] 1 S.C.R. 731.
9Atlantic Sugar Refineries Co. v. The Queen [1980] 2 S.C.R. 644.
Mc GILL LA W JOURNAL
[Vol. 27
the structural character of the Canadian economy itself. It is now recognized
that tariffs, geography, the market and later the subsidiary character of
much Canadian secondary industry, created an industrial structure that was
almost “naturally” oligopolistic. Indeed, the tendency of the few dominant
firms in an industry to favour limitations upon new entries was also aided by
the classical disposition of Canadian commercial policy, even after World
War II, to favour high tariffs, thus keeping the competitive forces of the
world from impinging too severely upon them. Canada still receives
criticism in many parts of the trading world for the continuing height of its
trade barriers.
Competition policy during this period was also complicated by the
increasing role of the economic and other forms of regulation in Canadian
society. From the limited beginnings of rate-making by the old Railway
Commissions to varieties of provincial public boards governing local
transport, trucking and private electric power systems, the movement
toward regulation, both provincial and federal, accelerated over the years.
Communications, for example, began to demand a degree of regulation by
the 1970s that could not have been foreseen a decade or two before.
Provincial governments were prolific in the creation of new instruments of
marketing controls to the point where, in some cases, new entries were
virtually barred except under very stringent licensing conditions. New
environmental and health and safety regulatory instruments, at both the
federal and provincial levels, contributed to the sense of a free enterprise
economy now increasingly circumscribed within the domestic regulatory
system.
At the same time recognition was being given to the growing economic
crisis in post-Keynesian western society, for it now seemed unable to manage
the dual phenomena of inflation and unemployment using the older
demand-side devices that “accepted” economic theory and practice had
advocated successfully for three decades. This situation led to new forms of
state intervention. The creation of the Anti-Inflation Board and its
operations from 1974 to 1978 were among the most powerful interventionist
activities of government that had taken place since the demolition of war-
time economic controls after 1946.
It was therefore nor surprising to find that throughout the period from
1960s to the mid-1970s, a continuing debate on the future of competition
policy formed part of the running battle between government, academics
and the business community. Once the Anti-Inflation Board experience was
over it was clear that labour would no longer accept regulatory wage
mechanisms and that the business community was, generally speaking,
unhappy about having its prices and profits monitored too carefully. In
general, there was a failure to develop a conceptual framework that
recognized all the problems and interests involved. We lacked a body of
theory with a unified vision of the economic future.
1982]
BOOK REVIEWS
The amendments to the Canadian legislation in 197510 should be seen in
this context. They were an attempt to deal with the merger/monopoly
provisions of the Act, and many substantive and procedural improvements
were made through important textual changes. These were directed towards
strengthening the conspiracy / combination offences defining new unfair
practices, and creating new remedies. It was clear, however, that the passage
in 1975 of what was called Phase I would still require a Phase II. Since 1977,
various proposals have been put forward only to suffer extinction because of
the hostility of business or too little support from the academic community
or both. Indeed, there was almost total suspicion in the corporate
community
that otherwise seemed quite
constructive or innocent to many professional students of competition
policy. Phase II, has to the present day remained unimplemented, although
the effort in the fall of 1981, based on the ministerial paper of April 1981 and
its follow-up, suggest a future pattern of non-criminal merger/ monopoly
controls that may possibly receive wider support than some of the previous
ministerial efforts. Even this, however, is doubtful. Professor Roberts is
consistently helpful and informative with the details of these Phase II efforts
up to 1980.
towards many proposals
Perhaps the most striking development has been the decline in the
sympathy or understanding of the courts, and notably of the Supreme Court
of Canada, in dealing with the issues of competition policy within the
existing legal framework. Three Supreme Court judgments have greatly
diminished the significance of present legislation. Aetna Insurance]1 and
Atlantic Sugar 2 both had a very adverse effect on the ability to prosecute
loose-knit combinations, conspiracies and collusive behaviour arising out of
multifirm agreements. The decision in KC. Irving13 has made it seem
virtually impossible to know what degree of control is necessary for the
takeover of an industry –
in this case all the English language newspapers of
New Brunswick –
to justify a finding of a merger/ monopoly under the Act.
Mr Roberts’ volume will be of use to lawyers, students, academics and
policy makers. It will also aid in the effort to find a median line which would
preserve as much competition as possible within the oligopolistic structure of
the Canadian economy.
The study raises important questions about that structure and to this
extent the book is not merely a professional tool -it
also tempts us to
consider whether Canadian policies will lead to the optimum allocation of
‘0S.C. 1975, c. 76, amending R.S.C. 1970, c. C-23.
II Supra, note 8.
12 Supra, note 9.
1SR. v. KC. Irving Ltd [1978] 1 S.C.R. 408.
REVUE DE DROIT DE McGILL
(Vol. 27
resources necessary
to render our economy effective at home and
competitive abroad. It compels the student of the field to consider the fact
that the business community and the public are perhaps no longer as fearful
of the concentration and consequent abuse of power that classically underlay
much of the original impetus for anticombines law and policy.
Maxwell Cohen*
*Judge (ad hoc) International Court of Justice, 1982; Emeritus Professor of Law, McGill
University; Scholar in Residence, University of Ottawa; Chairman, McGill Conference on
Industry and Government, 1957-68.
19821
COMPTES RENDUS
La Fiducie en droit Privdfranais. By Claude Witz, with a Preface by Dominique Schmidt.
Paris: Economica, 1981, Pp. vii, 351.
The modern trust is generally considered to be the most versatile and
adaptable legal institution of the common law system. The flexible nature of
the trust results primarily from the fact that the general rules governing it are
not limited to any particular juridical domain, nor is their application limited
to situations in which there is an express or implied intention to create a trust.
Thus, in the common law, the trust can regulate commercial and non-
commercial transactions in both the public and private domains. It can also
be constituted by unilateral declaration or by agreement and can even be
imposed by law. Given its virtually unlimited scope and the rigourous nature
of the fiduciary duties of the common law trustee, it is not surprising that the
trust has been characterized as “the greatest and most distinctive
achievement performed by Englishmen in the field of jurisprudence.”‘ It
should be noted, however, that technically the common law trust is founded
upon the co-existence of “common law” or “legal” rights and “equitable”
rights each of which may be subdivided into real and personal rights.
Within the civil law system, the trust, or at least a unified juridical
technique fulfilling the same role as the common law trust, has not received
universal acceptance. The principal impediment to the development of a
“trust” concept in civil law resides in the rigid civilian dichotomy between
personal rights and real rights or rights of ownership, and in the traditional
restriction on the creation of new real rights known as “dismemberments of
ownership”. In other words, according to traditional civilian concepts there
is only one notion of ownership and the real rights which constitute this
notion can be separated the one from the other only to the extent that is
expressly permitted by law. Thus, in the civil law, it is impossible to attempt
to duplicate the common law mechanism consistihg of the “legal” rights of
the trustee and the “equitable” rights of the beneficiary of the trust without
modifying or limiting the application of the aforementioned basic concepts.
The result is that countries belonging to the system of civil law either adopt
the trust in its fullest capacity by means of innovative juridical techniques or
adopt it in a lesser capacity by incorporating the trust mechanism into
previously existing and more traditional juridical techniques. Within the
former class of civil law jurisdictions may be included Liechtenstein, Japan,
Venezuela and Germany. In these countries, a unified and generally
applicable mechanism simulating the common law trust has been developed.
The Province of Quebec may be situated somewhere between the two
extremes insofar as its trust, lafiducie, is limited to the domain of gifts and
I F. Maitland, Selected Essays (1936), 129.
McGILL LAW JOURNAL
[Vol. 27
wills. France, which has no concept of the trust per se, belongs to the second
category of civil law countries. The adoption of a general trust concept in the
law of France is the subject matter and thesis of Lafiducie en droit privd
fran~ais by Claude Witz.
The mechanism which Professor Witz recommends to be adopted in
French law is defined by him in the following manner:
La fiducie est l’acte juridique par lequel une personne, le fiduciaire, rendue titulaire d’un
droit patrimonial, voit 1’exercice de son droit limit6 par une s~rie d’obligations, parmi
lesquelles figurent g~ndralement celle de transf6rer le droit au bout d’une certaine
prriode soit au fiduciant, soit A un tiers b~n~ficiaire.2
According to this definition, the essential elements of the fiducie are a
contract between the fiduciant andfiduciaire or a mortis causa disposition
by thefiduciant, the acquisition by thefiduciaire of a patrimonial right and
the limitation of the rights of thefiduciaire by the imposition of obligations.
It is noteworthy that the fiduciary duty of the common law trustee is reduced
in the fiducie to the purely contractual or personal obligations of the
fiduciaire. It appears that thefiducie cannot be imposed bylaw, nor can it be
constituted by unilateral inter vivos declaration.
Professor Witz’s thesis –
that thefiducie exists in substance to a limited
degree in the law of France and that it should be recognized as such and
extended to fulfill its potential -is
supported by a series of well researched
and logically presented propositions.
The first of these propositions demonstrates the historical link between
thefiducia of Roman law and thefiducie of the ancien droitfrancais, on the
one hand, and thefiducie as defined above, on the other. The Romanfiducia,
although limited in its application and its sanctions, is in substance the
precursor of the modem Frenchfiducie. It was used both as a mechanism
for intermediary administration and as a mechanism for real security. The
fiducie of the ancien droit franwais, on the other hand, is only nominally
linked to its modem counterpart. It was an outgrowth of thefideicommis or
substitution
the role of a tutor-
administrator for the benefit of a minor beneficiary. Despite its misleading
and (according to Professor Witz) erroneous nomenclature, the fiducie of
the ancien droit francais is correctly included in this study in order to
demonstrate a tradition
(albeit a somewhat discontinuous one) of
intermediary administration mechanisms in the civil law. In general,
Professor Witz provides us with an excellent historical analysis which is
written in clear and concise language. This analysis should be particularly
useful to those interested in the trust in Quebec law given the uncertain
origins of this latter mechanism.
intermediary played
in which the
2 C. Witz, La fiducie en droit privdfrancais (1981), 15.
1982]
BOOK REVIEWS
The remaining propositions set forth by Professor Witz in support of his
thesis concern the role and the juridical analysis of the fiducie in modern
French law.
Professor Witz evokes the role of the fiducie both by examining the
existing juridical techniques which in substance duplicate thefiducie and by
suggesting potential uses for it. With respect to the former, he states that a
unified concept would, in form and substance, more accurately reflect the
juridical reality in question. In both cases, the author examines alternative
mechanisms and concludes that the proposed fiducie is or would be more
effective than these alternatives. Professor Witz’s reasoning, however, is not
completely satisfying. For instance, within the domain of liberalities (gifts
and wills), he suggests that the term ‘fiducie-libraliti” be used to describe
the ostensibly gratuitous juridical act in which the donee or legatee is charged
to use the whole gift or legacy for the benefit of a third party.3 He states that
the proposed nomenclature would more clearly signify the onerous nature of
the act in question than does the term “libraliti avec charge”. This latter
concept, Professor Witz suggests, should be limited to situations where the
donee or legatee charged receives some kind of benefit from the liberality.
The only innovation to be found amongst these suggestions
is that
concerning the use of the term ‘fiducie-libiraliti’. Otherwise, Professor
Witz simply reproduces the present state of the French law in this domain. 4 It
is misleading on his part to suggest that such a change in terminology would
have any real practical effect.
Nevertheless, he does demonstrate that the law of France is in need of
reform with respect to the notion of “intermidiaire de transmission” for
reasons of both judicial consistency and practical utility. The wide range of
topics dealt with by Professor Witz -prohibition
to alienate, substitution,
usufruct, foundation, leasing agreements, security investment contracts and
factoring, amongst others-
shows that despite its inherent limitations the
fiducie can play an important role in commercial and non-commercial
settings.
Professor Witz’s thesis is less convincingly supported by the juridical
analysis of the fiducie. According to this analysis, the obligations of the
fiduciaire are personal or contractual, as are the corresponding rights of the
fiduciant and the beneficiary of thefiducie. Thus, the remedies available for
the protection of these latter rights consist only of those remedies presently
available
in French law with respect to the libdralit avec charge,
stipulation pour autrui and the prohibition to alienate. Professor Witz
expressly rejects the notion of patrimoine d’affectation as being contrary to
3 Ibid., 88-90.
4 M. Boodman, Les liberalitisi desfins charitables au Qudbec et en France, (unpublished
doctoral dissertation, University of Paris, 1980), 146-57.
REVUE DE DROIT DE McGILL
[Vol. 27
the basic principles of French law. As a result, the terminological and
substantial changes recommended by Professor Witz concerning the role of
thefiducie are not sufficiently supported from the point of view of remedies
or sanctions. This imbalance reduces the desirability of his proposals as a
whole.
It does not, however, detract from the overall excellence of Professor
Witz’s work. In La fiducie en droit priv frangais, Professor Witz
demonstrates an intuitive understanding of the legal system in question as
well as a detailed knowledge of the needs which his proposed changes aim to
satisfy. Both of these factors are essential for law reform. His understanding
of the civil law system is underscored by his proposal to unify the
terminology concerning commercial and non-commercial
intermediary
administration. It is partly through this type of general taxonomic
unification that innovative concepts can be developed in the civil law. The
work of Professor Witz should be of particular interest to Qu6bec jurists, not
only because of the subject matter, but also because this subject is examined
in a European context where there is a constant exposure to new juridical
ideas. In this way, Lafiducie en droit privifran~ais provides an interesting
touchstone for comparison with the present and proposed law of trusts in
Quebec.
Martin Boodman*
* Sessional Lecturer, Faculty of Law, McGill University.
1982]
COMPTES RENDUS
Canadian Sentencing Digest. By Paul Nadin-Davis and Clarey B. Sproule, Q.C. Toronto:
Carswell Co. Ltd, 1980.
The Canadian Sentencing Digest contains prrcis of all criminal cases
reported since 1970 indexed under their statutory provisions with, in some
cases, a brief history of the penalty provisions for each offence. At the
moment few, if any, unreported cases are digested, although the authors
expect to rely upon such cases in those subject areas where few cases get
reported. Only decisions regarding the quantum of sentence, and none
regarding the principles or their application, are reported. Thus the scope of
this book is quite narrow. Unfortunately, in practice, principle and quantum
are inseparable from each other in understanding a given result.
Yet this book will provide a useful sketch of the sentences that have been
imposed, with the prospect of thereby deducing what the appropriate range
of sentence might be for a particular offence and a particular offender. Thus,
it will be helpful to the practitioner who does not himself have wide
experience and who faces a magistrate or trial judge with a similar problem.
The maximum penalties provided in the statute seldom offer real assistance
in the course of determining the actual penalties that are likely to be imposed.
This book also has the virtue of providing this information simply and
quickly-which means it is likely to be used!
One happy result of the fact that for the most part only reported cases are
digested is that one can, after a quick perusal of the text, look to the actual
report in full. Thus the volume should really be used as a sentencing index
which, unfortunately, deals only with quantum of sentence.
The danger in all this is that reported cases are themselves markedly a
skewed selection. First, they are chosen for reporting because they usually
come from appeal courts, which in itself indicates that they tend to fall on the
extreme of either leniency or harshness, or perhaps show some other feature
that justifies selection for appeal in the first place. Second, there is
something about such cases that makes them unusual enough that a judge
saw fit to give extended written reasons describing and justifying the result.
Third, an editor at a later stage had to select this particular case as being
important enough to justify including it in a series of reports where
competition for space is keen. Finally, the editors had to select them from
this already small sample for inclusion in the book by way of digest. Quite
simply, any selection of cases that has come through this unusual process
may mislead and may not be typical of what in fact is done by judges in
Canada at all.
McGILL LAW JOURNAL
[Vol. 27
New Directions in Sentencing. Edited by Brian A. Grosman, Q.C. Toronto: Butterworths,
1980. Pp. xii, 308.
New Directions in Sentencing is a book of essays which flow from a
conference held
in May 1979 at the University of Saskatchewan in
Saskatoon. A partial list of participants is impressive: D.R. Cressey, Chief
Justice E.N. Culliton of Saskatchewan, Tanner Elton, E.A. Fattah, Alex D.
Gigeroff, Edward L. Greenspan, The Honourable Emmett Hall, K.B.
Jobson, N.N. Kittrie, Morris Manning, Q.C., J.W. Mohr, G.O.W. Mueller,
and Mr Justice C.F. Tallis. These participants attempted to deal with a
number of modem trends in sentencing, principal among them being the
move towards fixed or mandatory sentences and the abolition of parole as
we know it. The argument regarding these newer proposals is less interesting
than the assessment of where we have been, which comes almost as an aside
for most of the discussion. Mueller points out that:
the more important point.., simply is that, probably, the rehabilitative model was never
put into practice. It has always remained a model, like a plastic toy ship, a model which
was never translated and constructed into reality. Or does a prison ward become a
rehabilitation centre by putting a sign on a cage which reads ‘rehabilitation centre’? And
who says that prison is the place at which to practice rehabilitation any way?’
Indeed, the analysis brought to bear in these essays shows the full gamut
of the different approaches in North America to sentencing as a means of
social control. The practical element is not excluded. Mr N.N. Kittrie draws
upon the analysis provided by Professor Caleb Foote:
If the mask of individualization and rehabilitation are stripped away, the basic function
of discretion in paroling and sentencing practice is revealed: to adjust an impossible
penal code to the reality of severe limitations in punishing resources. By an impossible
penal code I refer to the fact that, given economic constraints, full or equal enforcement
is totally out of the question. 2
Of particular note is a very thoughtful essay by Keith Jobson who,
drawing upon his previous experience with the Law Reform Commission of
Canada, helpfully makes clear the limitations to which legislative change is
subject in attempting to deal with judicial discretion in sentencing. He
maintains that imprisonment and its overuse remain the central issue in
sentencing policy and practice, particularly as regards non-violent offenders
against property. In an important argument, he makes the point that to
achieve change so as to reduce these unnecessary prison sentences would
require change in the community’s level of tolerance of these crimes, the
I Mueller, “The Future of Sentencing: Back to Square One” in B. Grosman, New
Directions in Sentencing (1980), 14.
2 Kittrie, “The Danger of the New Directions in American Sentencing” in Grosman, ibid.,
1982]
BOOK REVIEWS
availability of acceptable sentencing alternatives, and the attitudes of the
judges themselves. His pessimistic conclusion can be read with great interest
and profit.
Quite simply, New Directions in Sentencing is not primarily of interest
for the “new directions” -which will soon become yesterday’s academic
sensation. But the quality of the articles is such that the analysis of these
intelligent discussion of the
problems produces a
fundamental issues surrounding sentencing. This book of essays is simply
the most useful such discussion that has ever been produced in Canada.
longer-lived and
Clayton Ruby*
* Of the Bar of Ontario.
REVUE DE DROIT DE McGILL
[Vol. 27
Concept of Law in English-Speaking Africa. By Chijioke Og-wurike. New York, London,
Lagos: NOK Publishers International, 1979. Pp. xvii, 205.
This book is not what it professes to be. Judging from its title, one
expects it to deal with the concept of law in English-speaking Africa or, to be
more specific, those African countries which prior to independence formed
part of the British Empire and lived under English law. Instead, it turns out
to be an elementary text on English jurisprudence, as taught to captive
audiences of English law students at English law schools; the position in
Africa receives no more than occasional sideways glances. In the tussle
between a somewhat outdated English Volksgeist and
the African
Volksgeist, the English Volksgeist is allocated centre stage. The African
Volksgeist, in which the reader of this book is primarily interested, is reduced
to the role of a walker-on of whom no more than a few, fleeting glimpses are
caught.
Neither noticeably better nor worse than the standard English texts on
jurisprudence, Mr Og-wurike’s work follows well-trodden paths, without
adding anything new or exciting. Savigny, Austin, Kelsen, Duguit,
D’Entr~ves and other great figures in the calendar of legal saints are dealt
with, or at least briefly mentioned, and there are references to the American
(though not the Scandinavian) realists, but more recent contributors to the
science of the law, such as Rawls and Dworkin, do not even receive an
honourable mention.
The concept of sovereignty is dealt with on traditional lines, no mention
being made of the fact that owing to the establishment of the European
Economic Community and other recent developments in the area of public
international law, the old idea of sovereignty is as dead as the proverbial
mutton.
While the basic concepts of English jurisprudence are, on the whole,
adequately dealt with, no attempt is made to deal in depth with the really
interesting question: what has happened to them in their transplantation
from Europe, where they originated, to African countries? There are
occasional references to the metamorphosis of English law in Africa, but one
wishes that the author had chosen this topic as the main theme of his book,
instead of treating it as a sideline.
The book is well and lucidly written and can be recommended to law
teachers at African law schools desirous of instilling the main concepts of
English jurisprudence into the minds of their pupils. The fact that it is
written by an eminent African law teacher and contains in the notes a
1982]
BOOK REVIEWS
number of useful references to African statutes and cases, will make it more
palatable to African students than its English equivalents. The reader who
peruses Mr Og-wurike’s book in the expectation that he will learn from it
how traditional European legal concepts have fared under the African sun is,
however, bound to lay it down disappointed.
H.R. Hahlo*
* LL.D., D. Jur., LL.B., of the Faculty of Law, University of Toronto.
