Legal Studies, Vol. 26 No. 2, June 2006, pp.

291–298
DOI: 10.1111/j.1748-121X.2006.00018.x

Book reviews
International Dimensions in Family Law, by john murphy.
Manchester: Manchester University Press, viii + 312 + (index) 3pp. (GBP 60.00, Euro
90.00 hardback). ISBN 0-7190-6842-8.

International Dimensions in Family Law is an adventurous book that seeks to look

at the private international law rules which affect the international family through the
eyes of a domestic family lawyer. It is well written with a very reader-friendly style
and, at times, the reader can almost hear the words being spoken. Much attention has
been paid to footnoting additional material that is useful to both family and conflicts
lawyers. Many of the criticisms contained in its chapters are robust and well sup-
ported, but it is a pity that the length of the book does not allow for further expansion
of the points raised. There are a few stylistic errors as in any book, and the lack of
cross referencing is sometimes disappointing, but the main downfall of this book is
the delay in its publication from the date the author appears to have finished writing
in July 2004. Unfortunately, this means that as the book hit the shelves some of the
material was more out of date than is normally expected of a new book.
The book begins with two chapters of introduction to the internationalisation of
family law and a description of some of the basic tenants of private international law
that sets the scene for the domestic family law reader in such a simplistic way that
the conflicts lawyer may need to forgive. However, as the author states, the book is
designed primarily to be about family law, not the conflicts of law; and conflicts
lawyers will find that the book lacks the rigour of their subject but this is because the
book aims to look at issues and policies which underlie the rules rather than look at
the rules themselves. In fact, the book should not be used as an alternative to the more
traditional conflicts texts but as an addition, and as a catalyst for further sustained
research and debate.
Approximately half of the book is dedicated to the formation and breakdown of
international families from the recognition of foreign marriages to the acquisition and
recognition of foreign divorces and the financial implications of such breakdowns.
Part II owes its length in the main to a description of the rules in this area rather than
to sustained analysis and criticism; however, it does pick up certain important themes
to which the author returns in the concluding chapter. We are told from the very
beginning of the book that the book does not intend to be comprehensive but to
highlight certain issues or problems. However, this combination of description of the
law and its development, together with only certain chosen points of analysis and
criticism, although interesting and thought provoking, can, at times, be frustrating.1
It is perhaps in the discussion of same-sex marriages, transsexual marriages, and civil
partnerships where the reader most notices the delay in publication since this family
lawyer’s critique of these more recent developments would have been of great interest.
The conflicts lawyer will find that this part seeks to describe the rules on which certain
criticisms are analysed, but does not contain a complete description of those rules
leaving gaps which would at times address, and at times add weight to, the criticisms
analysed.
1. For example, the position of wives, as opposed to the first wife, to a polygamous marriage
is not clear; nor is the issue of polygamy under UK immigration rules discussed.

© 2006 The Author. Journal Compilation © 2006 The Society of Legal Scholars. Published by Blackwell Publishing,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
292 Legal Studies, Vol 26 No 2

Chapter 4 concerning the discretionary refusal to recognise foreign marriages

brings out some of the underlying policy considerations stemming from the law
expounded in chapter 3, identifying that the change in modern society and culture is
not reflected in the law as it stands which, in the main, was developed in times very
different from our own. Although the theme occurs in other parts of the book, it is in
this chapter that the author sustains attack on the discretion of the judges’ use of
public policy in their recognition of foreign marriages as imperialistic and adding to
the danger of irrational decision-making. The author uses this discussion to argue for
a codification of the law regarding international marriages in an attempt to face some
of the issues head on and lay down a modern set of rules which would provide the
certainty that this area of law is lacking. The public policy theme is also the principal
point of criticism in the mainly descriptive chapter 5 on foreign divorce. It is, however,
noticeable that public policy is not universally criticised: the author appears not to
support its application where it is contravenes international comity, but supports its
use to combat discrimination.
Part II of the book concludes with a chapter considering financial relief, matrimo-
nial property and succession. A study of how property law affects international
families is, to a certain extent, outside the scope of a book concerning the international
dimensions of family law. However, a treatise of the issues concerning the interna-
tional family would be incomplete without at least a discussion of maintenance. The
line to be drawn between what to include and what not to include is neatly drawn
here between the transfer of property on the demise of the family (on break-up or
death) which is included, and the transfer of property during the lifetime of the family
unit, which is not included. The complexity of the various rules and provisions to be
chartered in this area is well documented together with a relatively brief consideration
of the effect of the implementation of the Brussels III and IV Regulations. It is,
perhaps, unfortunate that the work currently being undertaken at the Hague Confer-
ence regarding a possible maintenance convention is not addressed.
Part III looks at the two main child-centred topics within the bounds of interna-
tional family law: intercountry adoption and international child abduction. Chapter 7
focuses on the content and critique of the Hague Intercountry Adoption Convention2
and merely describes the position regarding non-Convention adoptions, which the
author states are generally unproblematic. An analysis of the problems in the appli-
cation of the Convention highlights certain problems in the drafting of its text, which
the author identifies as stemming from a political compromise between the developed
and the developing contracting states. Other criticisms concern gaps in the Convention
such as the lack of detail in the minimum counselling requirement; and issues of
interpretation of various terms and phases such as ‘adoptable child’ in Arts 4 and 16,
‘due consideration’ in Art. 4, and ‘improper financial or other gain’ in Art. 32. A more
specific problem discussed concerns the effects of recognition of Convention adop-
tions which allows for both simple and full adoptions: that being whether a simple
adoption granted in one state would be recognised as a full adoption in another state
where simple adoption was not available.
Although highlighting that one of the main weaknesses of the Convention sphere
of operation is the fact that two key states, the United States of America and China,
are not contracting states to the Convention, a consideration of the underlying reasons
for this would have helped the discussion on the varying policy issues in this area,

2. Hague Convention of 29 May 1993 on Protection of Children and Co-operation in respect

of Intercountry Adoption.

© 2006 The Author. Journal Compilation © 2006 The Society of Legal Scholars
 Book reviews 293

as would a discussion of the recent development in UK law to suspend the application

of the Convention to particular States. Moreover, both the family lawyer and the
conflicts lawyer would probably expect a discussion and possible critique of the
English case law concerning the discretion of the courts to grant an adoption or
recognise an adoption even when the Convention rules have been contravened if it is
felt to be in the best interests of the child. However, there is critical analysis of the
Convention prioritisation of the state of origin and the potential for social engineering.
International endeavour to tackle the increase in international child abduction is
afforded more space in this book than most of the other chapters, with the author
highlighting the already complex range of provisions, which may become even more
complex with the implementation of the Hague Convention on Protection of Children
19963 throughout Europe coupled with a new European Convention on Contact
Covering Children 20034. Analysis and criticism of this area of international family
law is already the subject of other excellent dedicated texts5, and it is therefore a pity
that this chapter was not confined to the most recent developments and issues rather
than what appears to be a random selection of flaws, gaps and crossovers. There is a
good section on the provisions of the Brussels IIA Regulation (2001/2003) that relate
to child abduction but criticism of the European intervention in the excellent work
achieved by the Hague Conference is sorely lacking. There is discussion of the
concept of habitual residence as applied in child abduction cases, but no mention of
the cases of B v H and W and B v H which identify the problems concerning the
habitual residence of a newborn baby. The defects of the European Convention on
International Child Abduction are well described, but in view of the fact that it has
been almost completely replaced by the Brussels IIA Regulation, this space may have
been better utilised by a discussion of, for example, the problem of undertakings, the
issue of the UK-Pakistan protocol, and a discussion of the English courts’ interpre-
tation of ‘rights of custody’ in the Hague Convention.
Part IV contains two useful chapters on other child-centred conventions. The
inclusion of chapter 9 on the United Nations Convention on the Rights of the Child
is to be welcomed. Although not a private international law instrument, it does inform
international family law development and, as such, truly warrants its treatment here.
The various rights contained in the Convention are discussed under the headings of
‘State Support and State Protection’, ‘Membership Rights’ and ‘Autonomy Rights’;
and there is a useful explanation of the soft enforcement mechanisms of political
goodwill and political pressure. This is followed in chapter 10 by a consideration of
two further Conventions which could become part of UK law in the future: the Hague
Child Protection Convention 1993 and the European Convention on Contact Con-
cerning Children 2003. In keeping with the tenor of the earlier chapters, the author
identifies and discusses various positive and negative features of each of these Con-
ventions. The 1993 Convention is welcomed for its father-friendly perspective on the

3. Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition,

Enforcement and Co-operation in respect of Parental Responsibility and Measures for the
Protection of Children.
4. Council of Europe Convention of 15 May 2003 on Contact Concerning Children, which
entered into force on 1 September 2005.
5. See, for example: P. Beaumont & P. McEleavy The Hague Convention on International
Child Abduction (Oxford, Oxford University Press, 1999); M. Everall, N. Lowe and M.
Nicholls, International Movement of Children: Law, Practice and Procedure (Bristol, Jordan
Publishing Ltd, 2004).

© 2006 The Author. Journal Compilation © 2006 The Society of Legal Scholars
294 Legal Studies, Vol 26 No 2

acquisition of parental responsibility and the involvement of Central Authorities in

assisting cross border contact; but is criticised for its uncertain scope and concurrent
jurisdiction which is identified as unprincipled and adult-centred6. The relationship
between the 1993 Convention and the Hague Abduction Convention is discussed but
similar discussion regarding the 1993 Convention and the Brussels IIA Regulation is
lacking. The 2003 Contact Convention is described as containing a progressive and
innovative concept of contact, although the author laments the lack of detail in the
Convention itself regarding the assistance Central Authorities are charged with giving
to persons with family ties, such detail being confined to the explanatory report. Here
the author returns to issues surrounding the connecting factor of habitual residence,
lamenting the failure of the negotiators to agree on a definition and calling for the
English child abduction case law on habitual residence to apply equally to the 2003
Contact Convention. Unfortunately, however important and necessary a consideration
of the problems of the factual concept of ‘habitual residence’ is, these limited points
of criticism fail to address the complexity of the matter in a manner that is in any
way helpful.
The book finishes with a chapter entitled ‘Concluding Reflections’ which discusses
the progressive internationalisation of family law and identifies certain recurrent
themes within this process of internationalisation. The author calls for a simplification
and codification of the rules on the recognition of foreign marriages; deplores the
lack of action to rectify English Conflict of Laws rules that are xenophobic and
chauvinistic; highlights the problems of the complexity of a multiplicity of interna-
tional family instruments; and is concerned by what he perceives as the lack of a
positive approach in the UK to the implementation of international family law instru-
ments. It is perhaps unfortunate that the author felt the need to return to some of the
detailed criticisms spread through the book and group them into what comes across
as an underdeveloped appreciation of the work being done in this area in the inter-
national arena. To read the final chapter in isolation from the rest of the book would
certainly not provide the reader with an appreciation of some of the detailed analysis
that is contained in the earlier chapters. Overall, this book is very much what it sets
out to be: a family lawyer’s foray into the world of international family law, analysing
certain conflict of laws provisions through the eyes of particular modern domestic
policy perspectives. There is, however, a lot of very useful and interesting material
in this book that calls for further development, and the reader may well be left with
the feeling that far too many topics within the sphere of international family law are
addressed for a book of this size.
kisch beevers

Foundations of Evidence Law, by alex stein.

Oxford: Oxford University Press, xiii + 248 + (index) 4pp. (£50 hardback).
ISBN 0-19-825736-8.

Alex Stein’s Foundations of Evidence is ‘not a doctrinal treatise about evidence laws
in general’, but an attempt to use ‘epistemology, probability, economics and political
morality’ to build a theory about the proper role and form of evidence law on

6. Citing E.M. Clive ‘The New Hague Convention on Children’ (1998) 3 Juridical Review
169, 176.

© 2006 The Author. Journal Compilation © 2006 The Society of Legal Scholars
 Book reviews 295

‘incontrovertible foundational factors’ (Preface). While this theory is primarily nor-

mative, nevertheless in order to ensure ‘a workable consensus about evidence law
mechanisms’ Stein eschews developing evidence law from scratch in favour of stick-
ing fairly closely to existing law in the United States and England.
His argument involves three interrelated theses. The first is that, properly under-
stood, evidence law comprises all rules and principles designed to further law’s fact-
finding objectives, but not those that serve extraneous objectives (such as upholding
state secrecy or lawyer-client privilege) set by other areas of law. Secondly, he argues
that these objectives should be limited to minimising the risks of error in adjudicative
fact-finding (Stein ignores legal fact-finding outside the courts), reducing the costs of
administering the system, and apportioning the risk of error in conditions of uncer-
tainty. Thirdly, given that these functions impinge on the allocation of state power
and citizens’ rights, they should not be left to the discretion of individual judges but
should be governed by legislatively sanctioned rules.
Although ambitious in challenging common understandings of the subject-matter
of evidence law, Stein’s first thesis makes conceptual sense, at least in theory. Less
convincing is his conclusion that it requires the exclusion of rules governing confes-
sions, because, like those excluding improperly obtained evidence, they further the
public policy of deterring police improprieties. This ignores the fact that both sets of
rules also uphold civil liberties and that those excluding potentially involuntary
confessions clearly further Stein’s stated objectives for evidence law. Equally uncon-
vincing is his argument’s implications for the expansion of evidence law. Thus the
only examples he gives of legal rules which are currently treated as substantive and
procedural law, but which are properly part of evidence law, are the criminal law rule
requiring provocation to be objectively established and the parole evidence rule. And
even so, his argument that provocation’s objective nature is aimed at reducing the
resources and difficulties involved in proving subjective states of mind overlooks the
equally convincing, if not more persuasive, argument that it (like many other objective
standards) is aimed at ensuring common standards of social behaviour and enhancing
law’s deterrent effect. But, even if this dual objective justifies treating provocation as
part of evidence law, are all substantive law rules laying down objective standards,
as well as all other mechanisms which improve fact-finding accuracy, reduce process
costs or allocate the error of risk, to be dealt with in evidence books and courses? If
so, Stein leaves it to others to identify which rules should be included. Nor does he
make clear whether his definitional thesis requires evidence books and courses to be
rewritten, or is simply intended to facilitate conceptual coherence in the minds of
evidence lawyers.
Instead, Stein devotes most of his energy to establishing his other two theses. Their
starting point is the uncontroversial idea that adjudicative fact-finding takes place in
conditions of uncertainty. Although he acknowledges in passing the problems of
fallible and biased witnesses, he focuses almost entirely on the problems inherent in
inferential reasoning, namely that it always requires reliance on generalisations about
the world and that, because one can never be certain that the facts in question are
identical to past experience as contained in the generalisation, such generalisations
are ‘inherently uncertain in their application to individual cases’ (p. 35). Conse-
quently, fact-finding is a matter of probabilities rather than certainties.
This prompts a long and highly technical evaluation of competing probability
theories. As with most such discussions, one is left wondering whether these theories
are meant to be used by professional fact-finders. Although later in the same chapter
he seems to suggest this, subsequently he relies on the lessons of probability theory

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to justify the case for the legal regulation of fact-finding. Thus, in his commendably
accessible discussion of traditional probability paradoxes, Stein convincingly estab-
lishes that proof should not be based solely on naked statistical information, and that
probability estimates do not just depend on a calculation of the chances that the
probability estimates express, but also on the depth of their evidential bases. Moreover,
because of the frequent unavailability of evidence necessary to know whether the
generalisation relied on is sufficiently analogous to the facts in question, and because
one can never know how such missing evidence might affect the generalisation’s
applicability, he argues that reliance on the generalisation can always lead to errors.
On the other hand, excluding evidence which is related to such generalisations may
equally lead to errors if the generalisation in question is in fact applicable. Here, a
decision will have to be made as to which side ought to be exposed to the risk of error.
Because such decisions will affect parties’ ability to vindicate their substantive
rights and hence involve an exercise of state power, Stein goes on to argue that they
must be based on political morality rather than epistemology. Accordingly he pro-
poses a ‘principle of maximal utilisation’, which requires all relevant facts to be
considered and any evidence adduced against an opponent to ‘be susceptible to
adverse utilization by that litigant’, and precludes a finding against a litigant when
its supporting evidence ‘is not susceptible to maximal individualised testing’ such as
through cross examination. (p. 72). In fact, as Stein argues and later chapters dem-
onstrate, this principle is not far removed from current practice.
By contrast, his third theses – the call for legal rules to govern the allocation of
the risk of error – runs counter to the current trend towards the abolition of evidential
rules or their replacement with judicial discretion. Such rules, Stein argues, should
either determine the probability threshold for making factual findings by determining
burdens and standards of proof, and establishing evidential presumptions, or control
the weight of the evidential base upon which fact-finders make their probability
estimates. Rules of weight, in turn, comprise four types: those excluding evidence
where the risk of error from certain types of evidence is too high (exclusionary rules)
or while not unacceptably high is still riskier than other available enquiries (rules of
pre-emption, such as the best evidence rule); those requiring additional supporting
evidence because of certain risks (corroboration rules); and those regulating the trade-
off between reducing the risk of error and reducing the cost of reducing such risks
(efficiency rules).
Drawing on economic analysis of law, Stein devotes a chapter to these efficiency
rules, before exploring in the last two chapters how the remaining rules should be
instantiated in criminal and civil trials. In relation to criminal trials, Stein introduces
an additional principle governing the allocation of the risk of error: ‘the equal best’
principle, which holds that the legal system ‘may justifiably convict a person only if
it did its best in protecting that person from the risk of erroneous conviction and if it
does not provide better protection to other individuals’ (p. 175). However, apart from
this and a convincing defence of the right to silence, which was in fact made more
fully when discussing efficiency rules, there is little to justify the separate treatment
of the same rules in separate chapters. Consequently there is much repetition between
the two chapters (sometimes verbatim), as well as repetition in both of the earlier
discussions. Avoiding this would not only have made the book more readable, but
also given Stein space to explore other relevant issues only touched upon or totally
ignored.
While his failure to satisfactorily justify reliance on liberal versions of economic,
political and moral theory is perhaps understandable given their current hegemonic

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 Book reviews 297

status, his defence of rationalism and a foundationalist epistemology is less convinc-

ing. Thus centuries of ontological scepticism are boiled down to argument that
humans constitute brains in a vat wired to some computer operated by a demon,
which, unsurprisingly is then rejected in favour of ‘the common sense view of the
world’ (pp. 57ff). The idea that there is such a thing as the ‘common sense view of
the world’ or one unaffected by power relations and social construction has been
seriously challenged by contemporary epistemological sceptics. But Stein responds
that they wrongly juxtapose subjectivity and the social construction of knowledge
with the correspondence theory of truth. However, he fails to explain how anything
less than the ability to achieve correspondence with ‘reality’ can preclude subjectivity
and social construction, while himself misleadingly juxtaposes ‘common sense’ with
the sort of ‘epistemological chaos’ and ‘everything goes’ mentality which is denied
by the sceptics he cites (p. 59).
Even more problematic is Stein’s faith in human rationality. Thus he dismisses
empirical research by cognitive psychologists into people’s inability to determine
probabilities accurately with the claim that it only shows that they make mistakes,
not that they cannot avoid them if properly trained. However, not only does Stein fail
to address the practicalities of such training and whether it should be extended to
jurors and other lay adjudicators, but he also seems unduly optimistic about the ability
of all non-experts to understand lessons about common probability mistakes, let alone
recognise them in novel situations.
This faith in human reason is particularly problematic given that Stein’s argument
for the legal regulation of fact-finding is confined to dealing with the risk of errors
inherent in the rational and atomistic analysis of evidence. Yet research suggests that
fact-finders tend to evaluate evidence holistically in terms of the coherence of com-
peting stories, and rely on experiences and intuitions which are not easily translated
into linguistic forms. Had Stein not ignored the former finding and been so quick to
dismiss the latter he may have explored their implications for other sources of fact-
finding error. The same can be said for his failure to pay more than passing attention
to sociological research into the impact of power relations in trials and importantly
also pre-trial proceedings, and psychological research into the unreliability of both
witnesses and those who evaluate the evidence. For example, psychological research
suggests that first impressions are difficult to dislodge and hence that, as is Scotland,
there should be no opening statements in criminal cases. Similarly, leading questions
are so effective in persuading witnesses of non-existent facts that arguably they
should be prohibited in cross-examination as well as examination if not, where
practical, outside the courtroom. On the other hand, a look at empirical research and
other disciplines might have led Stein to question whether fact-finders are as suscep-
tible to being misled by all types of evidence which he thinks should continue to be
excluded. Whether due to his narrow view of what fact-finding involves, and in
particular his focus on adjudicative fact-finding, or his desire to justify existing
evidence rules, the exclusion of much of the actual processes of proof undermined
the persuasiveness of his attempt to provide uncontroversial foundations for evidence
law.
Here also, he too readily accepts the Rationalist Tradition view that trials are aimed
at truth-finding. By contrast, others have argued that they might have other objectives,
such as providing a civilised means of resolving disputes, educating society as to
social norms or merely the routine bureaucratic processing of matters in which there
is little element of dispute. While such aims do not preclude fact-finding accuracy,
they might well require different rules to those championed by Stein.

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As a final criticism of his argument, one can question whether the choice in
evidence law is really between categorical rules or unfettered discretion. While the
case for the legal regulation of evidence is persuasive – though not solely for the
reasons and in the areas Stein discusses – he could have explored the possibility of
leaving the allocation of error or risk and matters of efficiency to the discretion of
judges, but subjecting its exercise to a variety of relevant considerations which address
the problems raised by empirical research into fact-finding as well as those which
motivate Stein’s maximal individualization and ‘equal best’ principles.
Nevertheless, notwithstanding these criticisms, Foundations of Evidence Law is a
welcome addition to evidence scholarship. It represents an important first attempt to
base evidence doctrine on something more than armchair psychology, to provide a
justification for and conceptual unity to what has hitherto been regarded as an
incoherent patchwork of historical hangovers from outdated assumptions about fact-
finding, and to make clear the value of probability theory. As such, it deserves to be
read and engaged with by all evidence scholars, whether interested in evidence law
alone or more widely in the processes of proof.
donald nicolson

© 2006 The Author. Journal Compilation © 2006 The Society of Legal Scholars