C.L.J.

Book Reviews 417

the questions – which have never yet troubled the English courts – have been
answered by the authors on a purely speculative basis. However, Green and
Randall were surely wise not to adopt an ostrich approach to these as-yet-
unresolved matters. Despite its considerable antiquity, conversion remains an
important modern-day tort as OBG and the protracted Kuwait Airways v. Iraqi
Airways litigation amply demonstrate. Their book is, therefore, all the stronger
for its provision of a carefully crafted set of answers to these seemingly inevi-
table questions for the future.
Like the authors of all the best pioneering books, Green and Randall will
not have had the final word on conversion’s nature and domain; and this is a
good thing. For too long and by too many, conversion has been largely over-
looked. But now there is a book to reckon with. For all that it may be a fairly
slender volume, The Tort of Conversion is packed with learning, containing as it
does mini-theses on the true gist of conversion, the nature of property and the
legal meaning of possession. Throughout – though slightly less so in relation to
the nature of property – the arguments are supported by a wealth of references
to primary and secondary legal sources, both ancient and modern, domestic
and comparative. There are, in consequence, very few criticisms that one may
fairly make of this book without transgressing the fine line between providing
an objective review of this book, and suggesting the contents of a rather dif-
ferent book that one would have written oneself. That said, there was one
striking oddity that should perhaps be noted. It was that, although the book
contained specific discussion of the overwhelmingly irrelevant partial defence
of contributory negligence to which there is only one very minor exception
(p. 206), there was no equivalent detailed guide to the complex rules on limi-
tation of actions in cases of conversion set out in sections 3, 4 and (in the case of
concealed fraud) 32 of the Limitation Act 1980. But this was just one blip in an
otherwise comprehensive and eminently readable account of the law of con-
version.
It may be a very long time before we can disagree conclusively with Sir John
Salmond’s famous observation that “conversion is a region still darkened with
the mists of legal formalism, through which no man will find his way” or Baron
Bramwell’s quip that “no one can undertake to define what a conversion is”.
But if a way out of this juridical quagmire is ever to be forged, Green and
Randall, in this superb volume, must be acknowledged to have taken the
critical first steps.

JOHN MURPHY

Between complexity of Law and Lack of Order. Philosophy of Law in the

Era of Globalization. Edited by BARTOSZ WOJCIECHOWSKI, MAREK ZIRK-
SADOWSKI and MARIUSZ GOLECKI. [Torun: Adam Marszałek. 2009. 430 pp.
Hardback 48 zl. ISBN 9788376114095.]

Multicentrism as an Emerging Paradigm in Legal Theory. Edited by

BARTOSZ WOJCIECHOWSKI, MAREK ZIRK-SADOWSKI and MARIUSZ GOLECKI.
[Frankfurt am Main: Peter Lang. 2009. 309 pp. Hardback £46.90. ISBN
9783631595633.]

GIVEN THE COMPREHENSIVE BODY of literature on globalisation which has

appeared over the last two decades, together with the frequent claim that
418 The Cambridge Law Journal [2010]

globalisation is a social force of such magnitude that it forces us to rethink the

basic categories of legal, political and economic thought, it seems amply justi-
fied to consider what – if anything – globalisation has to say to the philosophy
of law (or vice versa). Such, at least, are the lofty ambitions of two recently
published volumes dealing with globalisation and the philosophy of law,
Between Complexity of Law and Lack of Order/Philosophy of Law in the Era of
Globalization and Multicentrism as an Emerging Paradigm in Legal Theory
(hereafter: BCLLO and MEPLT).
The penchant of globalisation discourse for superlative and hyperbole says
something about the alleged nature of globalisation as a phenomenon of in-
terest for observers of the social world. It is not merely an interesting piece of
data, an additional puzzle waiting to be tackled by a scientific community.
Rather, globalisation is a revolutionary phenomenon, in the Kuhnian sense.
To understand globalisation, so the argument goes, we cannot simply apply
existing concepts to the relevant facts. Instead, globalisation compels us to
review our conceptual vocabulary, to devise novel concepts for what are
essentially novel developments. This certainly seems to be what the editors of
these volumes had in mind.
The discourse of paradigm shift is pervasive at various points throughout
both of the present volumes, e.g. “it is counterproductive to cling to the state
state-centered tradition of modern political thought” (BCCLO p. 14), “in the
contemporary world it is becoming increasingly difficult, if at all possible, to
make use of law as an instrument of government or a direct instrument for
social change” (BCCLO p. 45). “There is no doubt that within the scope of
contemporary legal thought we find a number of concepts which need to be
reformulated or simply replaced by new ones” (MEPLT p. 79). “We are wit-
nessing the emergence of ‘law with no state’ and non-hierarchical law whose
features are diversified sources and guarantees of compliance with the law”
(BCCLO p. 45). Both BCCLO and MEPLT thus share a programmatic com-
mitment to uncovering the supposed relationship between globalisation and
conceptual change.
What can we make of the substance of the claims? The first obvious point to
consider is that a clear operational definition of globalisation is required before
we can proceed to quantify its effects on our understanding of legal theory.
Academics and pundits alike have become quite (many would say overly)
comfortable with the use of the term globalisation. As a consequence, globali-
sation is rarely conceptualized in a rigorous and clearly circumscribed manner,
instead appealing to rather general observations which are taken to be self-
evident, e.g. concerning interconnectedness, the dominance of global markets,
the salience of global issues such as terrorism and global warming. What
is striking is that virtually all contributions in both volumes fail to move
beyond this rather anecdotal understanding of globalisation, selecting par-
ticular aspects of a common sense understanding of the term as it suits the
argument.
As such we encounter a surprisingly wide array of phenomena grouped
under the heading, including: (i) The diminishing factual ability of states to
exercise their sovereignty in policy areas which have a significant cross-border
dimension, e.g. regulation in economic and fiscal matters, controlling immi-
gration, protection against ecological contingencies and the threat of terrorist
attacks. (ii) The increase in the quantity, scope and influence of regional or-
ganisations, in particular the European Union. (iii) The proliferation of human
rights instruments and the efficacy of the mechanisms for their implementation
C.L.J. Book Reviews 419

and enforcement, coupled with a reinterpretation of sovereignty as “the re-

sponsibility to protect” and the establishment of universal criminal jurisdiction
by means of the International Criminal Court. (iv) The salience of identity and
group based politics within society with the increasing recognition of radical
pluralism as a central social problem. (v) The delegation of legislative and
administrative powers to various supra- and international governance bodies
and the resulting problems of democratic accountability of such organs. (vi)
The social and legal dynamics arising in post-colonial and newly independent
states.
It is more than reasonable to assume that these empirical factors touch
upon many of the main concepts of legal theory. As authors in both volumes
point out, legal theory has been wedded to a rather formal and classical
understanding of the territorial state and its assumptions of strong social co-
hesion paired with exclusive legal and factual sovereignty. Of both volumes,
BCCLO is most concerned with the more traditional issues of jurisprudence
and legal theory, which is reflected on the breadth of its contributions and their
frequently conceptual, non-empirical character. We encounter discussions of
international law and the changing nature of sovereignty, the philosophy of
criminal law in a globalised and pluralised society, the nature of citizenship and
constitutionalism in a globalised context. Given the aims and objectives set out
in their respective introductions, one can however question whether certain
contributions are perhaps stretching the concept of globalisation too far. For
example, articles concerning land reform in Southern Africa locate the element
of globalisation in the problems arriving from a colonial history. From the
perspective of conceptual innovation it is questionable whether this is the kind
of globalisation relevant to the main lines of argument. On the same token, the
bare fact that a topic has an international dimension does not immediately
imply that it poses special problems from the perspective of legal theory.
Nevertheless, BCCLO is impressive and instructive for the breadth of issues it
raises with regards to globalisation.
MEPLT on the other hand is generally less concerned with legal theory
strictly understood. Its main focus is on the various doctrinal, constitutional
and theoretical issues arising within the context of the European Union. Thus
phrases such as “multicentrism” and “legal theory” more often than not reduce
to the doctrinal difficulties arising from conflicts and tensions between the
European and the national legal spheres. “The main feature of justice systems
in contemporary Europe”, writes Tomasz Stawecki, “is a coexistence of various
courts and tribunals responsible for adjudication with the limits of a territory
of given country. (…) [C]o-existence is usually accompanied by tensions and
conflicts, as well as instability in the interpretation of law, which in turn results
in a lack of legal certainty and predictability of laws.” (MEPLT p. 81).
There is however a considerable degree of overlap between both volumes.
One common thread is that all of the phenomena identified pose a challenge for
a “traditional” or “Western” conception of legal theory. This conception is
based on the view of law issued by a sovereign state, producing norms that are
hierarchically ordered, effective and are legitimated by democratic processes.
To replace this view, we are presented with a variety of alternative views and
interpretations of legal theory. The challenge to this theoretical framework
relies on the argument that the paradigmatic understanding of “state-law”
implicitly relies on empirical assumptions that no longer obtain, given the
phenomena described above. The effects of laws are no longer congruent with a
state’s territorial borders (e.g. the fiscal laws of a large state can influence and
420 The Cambridge Law Journal [2010]

constrain the ability to legislate economic affairs in smaller states), nor is legal
sovereignty guaranteed when many legislative powers have been delegated to
supranational bodies (posing a problem for the unified, “Kelsenian” model of a
legal system), nor is the democratic legitimacy to be taken for granted in the
face of challenges by various minority and subaltern groups in society.
The main achievement of these volumes is to illuminate and highlight the
problem of a conceptual mismatch between legal theory and legal practice. Part
of this strength derives from the fact that few authors talk about any specific
author’s understanding of legal theory, but tend to resort to a generalized view
of “Western” legal theory or tend to rely on certain archetypal classifications,
e.g. “Kelsenian” legal theory. Although this definitely contributes to the clarity
of the argument, one might at the same time justly object that the objections
against “traditional” legal theory are somewhat misguided. Jurisprudence
(particularly contemporary legal positivism) has been aware of the issues raised
here for many years and many of the positions defended within legal positivism
are considerably more sophisticated than a simple will-theory of law. In fact,
authors such as William Twining, Brian Tamanaha and Boaventura de Sousa
Santos are conspicuously absent in both volumes. Yet all three authors have
published volume length monographs on the topic of globalisation and legal
theory, and their respective positions are currently the most fruitful answers
to the central problems of both volumes: how do we ensure that our juris-
prudential concepts are fit for a globalised world? A similar remark can be
made with regard to work being done in the field of “transnational” and
“cosmopolitan” democracy within political theory by authors such as David
Held, James Bohman, Nancy Fraser and Seyla Benhabib.
A significant limitation of both volumes is thus a failure to engage critically
with the body of existing and current literature on the matter, and to take
seriously the complex nature and state of the art of contemporary legal theory
and jurisprudence. In this vein, the contributors in these volumes are necess-
arily limited by the limitations and constraints provided for in an edited vol-
ume. Although a clear articulation of the central issues is undeniably a virtue,
concepts such as “multicentrism” and “postmodernist legal theory” tend to
have the character of meta-theory rather than a fully fledged substantive
theory. If it is indeed the case that new conceptual frameworks are needed, it is
the question whether network and system theories are fit replacements without
further refinement and development.
Nevertheless, these volumes provide a challenging and comprehensive
overview of the various issues currently at stake within legal and political
theory. They are impressive in their scope and breadth – highlighting the rel-
evance of globalisation in areas not typically troubled by the phenomenon, e.g.
criminal and constitutional law – if occasionally lacking in comprehensiveness
of treatment. These books are a recommended read for those who are inter-
ested in exploring the conceptual and foundational limits of their discipline in
light of globalisation and internationalisation.

SIDNEY RICHARDS