INTIMACY AND RESPONSIBILITY: THE CRIMINALISATION OF HIV TRANSMISSION

by Matthew Weait. New York: Routledge, 2007. 233pp. Hardback. $170.00. ISBN: 9781904385714. Paperback. $51.95. ISBN: 9781904385707.

Reviewed by Joe Rollins, Department of Political Science, Queens College, CUNY. Email: joerollins [at] nyc.rr.com.

pp.598-600

In INTIMACY AND RESPONSIBILITY Matthew Weait sets out to problematize how the criminal law has been used against those who transmit HIV to their sexual partners and, along the way, provides insight into the ways that criminal law constructs responsible subjects. As HIV/AIDS has become medically manageable for those who have access to the necessary drugs, the sense of crisis has passed and scholarly attention in the area has waned. Weait’s book is a welcome reminder that the problem has not gone away and that AIDS remains an important subject for new theories and analysis. His thesis can be summarized succinctly: Criminalization of HIV transmission is unlikely to prevent onward transmission of the virus and may, instead, have pernicious side effects. Weait’s methodology is perhaps best described as discourse analysis; court transcripts, judicial opinions and statutory language serve as the most prominent data but media reports also make an occasional appearance. The cases examined in the book, fourteen altogether, come from England and Wales and all originated with criminal charges brought against individuals who were tried for or plead guilty to transmitting HIV to sexual partners. These cases constitute the entire universe of such prosecutions and a synopsis of each is provided at the end of Chapter 1.

Chapter 2 explores in detail the trial of Feston Konzani – a Malawian national convicted in 2004 of recklessly transmitting HIV to three female partners – and serves three purposes: to show the messy and complicated range of problems that law must address in matters involving human relationships, especially sexuality and HIV transmission; to show how passions, sentiments, behaviors, and expectations are translated into the language of the law; to set the stage for the themes examined in the remainder of the text. Those themes, reflected in subsequent chapter titles are “Harm, Causation and HIV Infection,” “Risk, Recklessness and HIV,” “Consent, Knowledge and Disclosure,” and “Responsibility, HIV Transmission and the Criminal Law.” A rich textual resource, the Konzani trial serves the author’s purpose admirably and whets the reader’s appetite for what follows. Weait relies on the case extensively to ground his arguments and where necessary draws reinforcement from the others. This approach is parsimonious and necessary because it makes otherwise complex arguments manageable for the reader unfamiliar with the law and case materials from England and Wales, but, to his credit, it also makes the reader wish for a more thorough treatment of the other cases because his take on Konzani is so compelling. [*599]

Chapter 3 frames the discussion of harm and causation by explaining the limitations of phylogenetic analysis – the scientific technique by which viral samples from person A might be linked to the infection of person B. Despite the desire of legal actors to find certainty in science, Weait shows that scientific certainty in such cases is elusive at best. Coupling this discussion with an explanation of the legal concept of harm leads Weait to investigate critically the notion of the autonomous legal subject who is entitled to bodily integrity, as well as the idea that law should intervene when that integrity is compromised. As he concludes, these concepts, despite political value and intellectual appeal, “lack descriptive truth” and result in theories and justifications that rest “on an inadequate foundation” (p.108).

As Weait points out, Chapter 4 is the most theoretically dense part of the book. It begins with the premise that modernity ushered in a period during which liberty was predicated upon security and security required a particular construction of the body as autonomous, bounded, and inviolable. An important aspect of this epistemological tradition has been the rise of the “risk society.” Whereas in pre-modern societies risk was seen as inevitable and beyond human control, modernity brought with it the related beliefs that risk could be managed by experts and nature could be mastered, but that the “extravagant promises of modernity – of health, wealth, and security – are ones that not only can be delivered, but ones that, paradoxically but inevitably, modernity has rendered undeliverable” (p.119); hence, the rise of post-modernity marked by skepticism and anxiety. This theoretical exegesis lays the foundation for the argument developed throughout the remainder of the chapter: “HIV positive people represent the paradigm Other of risk society, and recklessness the paradigm fault” (p.197). Here we see how the citizen/subject was rendered possible through enlightenment era philosophies of the state (e.g., Mill), and possessed a “bounded body” that is white, male, heterosexual and, at all times, a sexual agent. Sexual objects – i.e., women, people of color, gay men – possess open bodies that are liminal, hybrid and therefore threatening; the HIV positive body exemplifies this most clearly, threatening not only the corporeal body but also the body politic.

Chapter 5 considers the notion of consent and its relationship to knowledge and disclosure. Drawing on Foucault’s insights about confession what Weait shows most forcefully here, although he states it more cautiously, is law’s role in perpetuating the fantasy that heterosexual sex is clean, safe, and that any risks associated with it (e.g., pregnancy) do not fall on white, heterosexual men. Perhaps the most potent argument here, and one well supported by his evidence, is that judicial rhetoric in the cases examined makes general knowledge of HIV transmission risk unthinkable; the HIV positive person is responsible for the well-being of his or her sexual partners who, in turn, have no legal obligation to attend their own safety.

The final chapter illustrates best one of the things that is most satisfying about Weait’s book: It is an excellent example of lucid prose and convincing analyses; each chapter begins with a clear [*600] foreshadowing of the arguments to come and concludes with a summary. Theoretical frameworks are set up sufficiently without unnecessary embellishment, arguments are drawn persuasively from the evidence provided and, at the end of it all, Weait has provided a very useful, thoughtful and convincing treatment of a subject that merits further scholarly attention. The final chapter elegantly summarizes the whole and reiterates the author’s main themes.

INTIMACY AND RESPONSIBILITY makes a valuable contribution to sociolegal scholarship in general but will be of particular interest to those working on public health, the body, gender and sexuality. Weait is at his best when setting up his arguments and presenting evidence. The conclusions he draws are insightful, interesting and underscore what has long been common knowledge among public health policymakers, the gay community, and people living with HIV/AIDS: Safer-sex practices are a must and getting tested is the key to longevity. Punitive policies only deter people from getting tested and seeking medical treatment. Weait’s most illuminating insights show how legal language perpetuates the fantastical scripts through which sexual acts become sexuality, i.e., how sex is infused with meaning in Western culture. The conceptual tools deployed here – causation, risk, responsibility, knowledge, consent – help instantiate a binary system of sexuality wherein bright lines are drawn between safety and risk, male and female, hetero- and homo-, white and non-white, citizen and immigrant, despite the inaccuracy and damaging potential inherent in such stark delineations. It would have been interesting to see Weait delve more deeply into this Foucaultian power-knowledge nexus because it is so clearly an animating force behind the phenomenon he has chosen to analyze. But that was not his project, and it seems churlish to quibble with a book that is otherwise so elegant and thoughtful. The observation might be, instead, best viewed as evidence of an American reader’s limited grasp of the British gift for understatement.

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© Copyright 2008 by the author, Joe Rollins.

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MULTICULTURALISM AND THE CANADIAN CONSTITUTION

by Stephen Tierney (ed.). Vancouver, BC: UBC Press, 2008. 256pp. Cloth CDN$85.00/US$93.95. ISBN: 9780774814454. Paper CDN$32.95/US$36.95. ISBN: 9780774814461.

Reviewed by Diana Yoon, Department of Legal Studies, University of Massachusetts Amherst. Email: dyoon [at] legal.umass.edu.

pp.594-597

In 2002, the government of Canada announced June 27th as Multiculturalism Day, an annual celebration to acknowledge “the contributions of Canada’s diverse people to Canadian society.” This declaration was certainly not the government’s first gesture to cultural pluralism as demographic reality and centerpiece of national character; it adopted multiculturalism as a national policy in 1971. However prominent in official narratives of Canadian society, multicultural policies have encountered criticism from various sources, including advocates of Quebec nationalism and Aboriginal sovereignty to critics arguing that multiculturalism undermines liberal equality and national cohesion. The purpose of MULTICULTURALISM AND THE CANADIAN CONSTITUTION is not to survey and clarify arguments for and against multicultural policy in Canada. Rather, the book presents a collection of essays – written by scholars in fields ranging from political theory, public policy, constitutional law and international law – on juridical and political questions essential to understanding the normative debate over multiculturalism.

The first part of the book focuses on the development of multiculturalism and federalism in relation to the Canadian constitution. Readers interested in the “etymology of multiculturalism” in Canada (p.43) should begin with Michael Temelini’s “Multicultural Rights, Multicultural Virtues.” Temelini examines how multiculturalism was articulated and adopted as a national policy, demonstrating that the concept “originated neither from constitutional negotiations nor from legislation nor from the courts; rather, its definition was a work in progress developed over time in the context of widespread public debate and championed by an organized public movement” (pp.43-44). The analysis of the process that shaped the discourse of multiculturalism is connected to understanding its content: multiculturalism was defined not only in juridical terms (concerned with rights and practice of law), but also with a “civic humanist language and practice of virtue” (p.43). The language of citizenship and civic engagement integral to the evolution of multiculturalism is well-documented in the essay, and it reminds us that while multiculturalism is often viewed as a question of “minority rights” (Kymlicka 1995), it should also be understood as “a virtue in the sense of being an ongoing practice of understanding that is acquired in dialogue and that shapes our character and makes us become better citizens” (p.56).

Ian Peach’s essay is similarly attentive to political movements and democratic engagement in telling the story of Canadian multiculturalism. His [*595] discussion is intended as a corrective to the conventional understanding of the 1982 adoption of the Canadian Charter of Rights and Freedoms as an “intergovernmental war story” (p.92), and thus focuses on the ways that citizen participation and the work of advocacy organizations (what he calls “equity groups”) shaped that constitutional moment. Peach and Temelini offer insightful analyses of historical context and political struggles in the development of multiculturalism, which certainly enhance the reader’s understanding of former prime minister Pierre Trudeau’s role in establishing the nation’s multiculturalist vision and policy, as discussed by Hugh Donald Forbes.

Marc Chevrier’s perspective on the evolution of multiculturalism and constitutional development focuses on Canada’s federal system. In assessing how political scientists and constitutional lawyers have addressed questions of federalism, Chevrier points to conceptual ambiguities (for example, unclear terms for “federalism” and “federation”) that pose a challenge in theorizing “the constitutional regime as a distinct aspect of the political system” (p.111). He offers a nuanced discussion of the uneven impact of the 1982 constitutional amendment on the politics of provincial governments, Aboriginal rights and cultural pluralism, suggesting that the national political community is being shaped by a “double process of federalization and defederalization” (p.122).

It is generally acknowledged that the 1982 Constitution Act enacting the Canadian Charter of Rights and Freedoms marked a new era of constitutional jurisprudence. Essays in the second part of MULTICULTURALISM explain post-1982 developments in the constitutional process, highlighting “the role of constitutional interpretation by the courts in the development and enhancement of Canada as a self-consciously multicultural state” (p.3).

Jameson Doig’s “New Constitutions and Vulnerable Groups” focuses on the Supreme Court’s interpretation of the Charter – specifically, the legacy of former chief justice Brian Dickson in shaping the jurisprudence of “rights of Aboriginal peoples, members of distinctive religious and ethnic groups, and other ‘vulnerable groups’” (p.164). A survey of cases in these areas would have been useful on its own, but Doig goes further to discuss how Dickson negotiated two forces that were positioned against the Supreme Court’s capacity to give life to the Charter’s provisions: the “long tradition of parliamentary supremacy,” and the similarly well-established tradition that “placed a high premium on individual liberty” (p.165).

Hugh Kindred’s essay explores the nexus of international law and the constitutional process by acknowledging the significance of international treaties for the nation’s “multicultural citizenry” (p.148). As Kindred demonstrates, the Supreme Court “established that Canada’s international human rights obligations should inform and nourish the interpretation of Canada’s domestic Charter of Rights and Freedoms” (p.154). This interpretive approach is noteworthy considering the absence of explicit reference to international treaties in the Charter as well as challenges of [*596] implementing international agreements within Canada’s federal system. Kindred’s analysis of these issues should be well-received by scholars interested in the “domestication” or local adaptations of international law.

Two other essays in MULTICULTURALISM address international implications of pluralism in Canada. Will Kymlicka comments on the ways that the “Canadian model” of diversity circulates internationally, leading into an insightful discussion on key features of multicultural policy in Canada, conditions for its success, and implications for “exporting” the Canadian model to manage pluralism in other multiethnic states. Daniel Bourgeois and Andrew F. Johnson discuss the 2003 Action Plan for Official Languages and analyze it as a policy initiative aimed at “strengthen[ing] the authority of the Canadian state” in light of challenges arising from within and beyond the nation’s borders (p.129).

The final three essays of the book address what is arguably the most expansive theme in multicultural constitutionalism: equality. Joan Small explores how translating multiculturalism into a constitutional principle has raised questions about the jurisprudence of equal rights for individuals and groups. She does so by analyzing section 27 of the Charter, which states: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians” (p.234). In assessing the interpretive obligation of section 27, Small argues that it requires “a contextual inquiry that recognizes diversity, including cultural diversity, as an inherent aspect of human dignity” (p.209).

The concept of human dignity is also important in Katherine Eddy’s essay, which seeks to make the case for welfare rights. Approaching questions about equality and responsibilities of the state to its citizens within the framework of normative political theory, Eddy argues, “[T]he point is not just that a concern for equality can justify welfare rights provision but that it should” (p.212, emphases in original).

Robert Currie explores what a fair process of adjudication means in light of “complex social and cultural realities” (p.182) by looking at how forms of evidence concerning culture has been “received, rejected, and utilized by judges and (to some extent) juries” (p.183). Currie’s careful analysis demonstrates that courts have recognized the limits of formal equality and have employed modes of contextual analysis in the interest of fairness: “a ‘cultural discourse’ is under way, if only sotto voce, between and among the courts, that has fairness and equity as its basis” (p.190). Reading this essay in relation to scholarship on how questions of “culture” have emerged in US courtrooms (Renteln 2004) would be an excellent starting point for a comparative study. In fact, other themes in the development of multicultural constitutionalism – in particular, judicial approaches to equality that account for social inequalities and differences, jurisprudence of “group rights” and the trajectory of “equal citizenship” in the constitutional process (Karst 1989) – could form the basis of a comparative study of polities identified by a pluralist character (such as Australia, Canada, US). [*597] Similar to the manner in which Will Kymlicka addresses the assumption that Canadian multicultural policy is unique and worthy of reproducing in other places, one could adopt a comparative perspective to assess what, if any, distinct features can be observed in Canada’s multicultural constitutionalism (for example, an analysis of how US and Canadian courts have negotiated the tension between formal equality and concepts of equality that integrate cultural and other relevant social contexts).

Essays in MULTICULTURALISM AND THE CANADIAN CONSTITUTION reflect a plurality of methods, conceptual vocabulary and normative positions. Stephen Tierney’s introduction, rather than imposing a single framework through which to engage the authors, highlights points of productive tensions and questions for further study that emerge from reading each essay in conversation with the others. If the reader is to glean an overarching theme from Tierney’s introduction, it is one that insists on understanding multiculturalism through an ongoing, constantly evolving conversation – “a journey that can never be completed” (p.22).

REFERENCES:
Proclamation Declaring June 27 of each year as "Canadian Multiculturalism Day." Available at http://www.pch.gc.ca/progs/cpsc-ccsp/jfa-ha/journee-multi-day/proc_e.cfm.

Karst, Kenneth L. 1989. BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION. New Haven: Yale University Press.

Kymlicka, Will. 1995. MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS. New York: Oxford University Press.

Renteln, Alison Dundes. 2004. THE CULTURAL DEFENSE. Oxford; New York: Oxford University Press.

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© Copyright 2008 by the author, Diana Yoon.

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EUROPEAN ADMINISTRATIVE LAW IN THE CONSTITUTIONAL TREATY

by Eva Nieto-Garrido and Isaac Martín Delgado. Oxford and Portland, Oregon: Hart Publishing, 2007. 210pp. Paperback. £45.00/$95.00. ISBN: 9781841135120.

Reviewed by Jacques Ziller, Faculty of Political Sciences, University of Pavia (Italy). Email: Jacques.ziller [at] unipv.it.

pp.590-593

The book by Eva Nieto-Garrido and Isaac Martín Delgado would deserve to bear another title, i.e. “European administrative law in the treaties on the European Union and on the functioning of the European Union,” thus avoiding the risk that potential readers believe it is outdated, because the Constitutional treaty never come into force or because the Treaty of Lisbon encountered problems with the Portuguese electorate. The analyses of the book are and will remain relevant even before the amendments included in the Lisbon treaty – which are taking over the innovations of the Constitutional treaty – enter into force. The book clearly shows the added value to the field of European administrative law of the modifications that had been proposed by the European Convention 2002-2003.

In her Foreword, Carol Harlow, a well known British expert in the field of European and Comparative Administrative Law praises the book, with one minor caveat – her dislike for a code of administrative procedure. I would entirely subscribe to her praise, while disagreeing with her criticism against such a projected code, and as a matter of fact, I think the authors of the book make an excellent case in favor of a codification of procedures involving EU institutions. Harlow concludes her Foreword with the words, “we need to consider whether respect does not depend rather on effective policy-making than on institution-building and constitution-drafting.” Maybe, but effective policy-making depends on good implementation, and the object of European administrative law is nothing else than policy-implementation. Clarifying the institutional setting of the complex machinery of the EU will not be sufficient for the “delivery” of common policies. A better understanding of the principles, rules and procedures of European administrative law will help understanding what the result of a specific policy design is, and what is due to the constraints which have been built into the treaties by the governments of the EU member states and by its institutions. This is a major contribution by Eva Nieto-Garrido and Isaac Martín Delgado.

The book is divided into five chapters, each devoted to one of the issues for which innovations in the treaty-reform decade 2000-2010 are most relevant. They first try and establish the state of the art on the issue in the current treaties – EC and EU as amended by the Nice Treaty of 2001, which entered into force on 1 March 2003 –, in secondary legislation, case-law and literature. They then present the innovations contained in the Constitutional treaty – with the necessary updating comments pointing out how these innovations are taken up [*591] by the Lisbon treaty. This presentation is followed – sometimes accompanied – by the authors’ comments on the improvements which are being introduced in the EU’s basic law, and on any shortcomings. The book is therefore useful both as a complement to the standard books on European Administrative Law, by Auby and Dutheil de la Rochère (2007), Birkinshaw (2004), Chalmers and Tomkins (2007), Chiti (2008), Chiti et al (2007) , Craig (2006), and Schwarze (2006). It also introduces the debates which are to some extent already ongoing, and to some extent new because they will result from the entry into force of the relevant treaty amendments.

The first chapter is devoted to “Legislative Powers and Normative Instruments” and presents one of the most interesting reforms that will be carried in the Treaty on the Functioning of the European Union, albeit without the names which pleased the European Convention in 2002-2003 and displeased the British, Dutch and French governments in 2007, i.e. European Laws and Framework Laws and European Regulations. The chapters give a clear account of the major innovation which consists in a distinction between legislative, delegated and executive instruments. It is quite critical about some of the consequences of the reform, and would have benefited from the analyses which are developing since the adoption of the Lisbon treaty. The choice of starting the book with this chapter was a good one, as this reform gives a solid basis to the concept of European administrative law and will no doubt have important consequences, i.e. having different regimes for legislative and non legislative acts. Like US or French administrative law, European administrative law deals with regulatory acts, and is not confined to individual decisions.

The second chapter, “Implications of a Binding European Charter of Fundamental Rights for the Individual Decisions Made by the European Public Administration,” has a long title to signal that the authors intend to go beyond existing commentaries on the right to good administration, access to documents, and to protection of personal data. Nevertheless, most of the substance of this chapter is devoted to the content of these rights. The comments on the implications of a binding charter remain somewhat limited, as most of these implications will depend upon the choices made by the European Court of Justice. The fact that a binding Charter will most probably lead to an increase of questions for preliminary ruling directed at the Charter has to be born in mind, and one may wonder whether and to what extent the infamous protocol on the position of the UK might have any impact on the relevant rights.

The third chapter on “The Impact of the Charter of Fundamental Rights on Decisions Adopted by the Member States” is more original than the second one. Indeed, only part of the literature has noticed the problems related to the scope of Article 41 of the Charter: does it only cover the decisions of EU institutions, or also, as most other rights of the Charter, those of the member States’ authorities in the implementation of EU law? The Chapter gives a very useful account of the arguments and responses, and also proceeds to an in-depth examination of the reach of Article 51, [*592] about member states’ authorities “when they are implementing Union law.” The authors clearly opt for an extensive interpretation, as I would do. The case-law of the Court will tell us whether this is the right answer. A complement to this chapter could be a sector analysis: will the impact of Article 41 be more important to freedom of movement of persons – especially of third-country nationals – or to freedom, security and justice, or in the field of the internal market? Here again the protocol on the position of the UK with respect to the Charter might shed a new light on a disputed issue.

The fourth chapter, “Towards a Law on Administrative Procedure,” again presents a very useful in-depth examination of the innovation resulting of the new Article 298 TFUE (III-398) which gives legal basis for general codification of administrative procedures of EU institutions, bodies, offices and agencies. The authors not only discuss the issue of the legal basis, but also the application of such a general regulation on administrative procedure, drawing upon the code of good administrative behavior of the European Ombudsman. Spanish lawyers are very much aware of the advantages and drawbacks of a general law on administrative procedure, as their country has been one of the first in Europe – with Austria – to adopt such a regulation. Whether a European regulation of Administrative procedure would have the impact on European administrative law that the APA has had on American administrative law, would be an interesting topic for further discussion.

Chapter Five on “Judicial Protection” is rightly placed at the end of the book, signaling that judicial protection is a rather minor field of innovation – compared with the other institutional changes resulting from the constitutional treaty. At the same time, it rightly demonstrates that there are also some interesting innovations in the field of judicial protection, which should not be underestimated: the modification of the rule of standing in actions of annulment against a regulatory act, the extension of the courts’ jurisdiction to Europol and Eurojust, the mention in the treaty of the member states’ obligation to provide appropriate remedies to ensure effective legal protection in the fields covered by Union law, and – last but not least – the extension of the court’s jurisdiction to the entire field of the area of justice, security and freedom. This is, I believe, the major change – from the point of view of positive law – which would result from the entry into force of the Lisbon Treaty. Interestingly, the protocol on transitional measures and the protocols on the positions of Denmark, Ireland and the United Kingdom remind us that this new field of EU law might have a reduced territorial scope, thus introducing geographic differentiation as an important issue for European administrative law.

REFERENCES:
Auby, Jean-Bernard, and Jacqueline Dutheil de la Rochère (eds). 2007. DROIT ADMINISTRATIF EUROPÉEN. Bruxelles: Bruylant.

Birkinshaw, Patrick. 2004. EUROPEAN PUBLIC LAW. Cambridge, Cambridge University Press. [*593]

Chalmers, Damian, and Adam Tomkins. 2007. EUROPEAN UNION PUBLIC LAW – TEXT AND MATERIALS. Cambridge, Cambridge University Press.

Chiti, Mario P. 2008. DIRITTO AMMINISTRATIVO EUROPEO (3rd ed). Milan : Giuffrè.

Chiti, Mario P., Guido Greco, Gian Franco Cartei, and Diana-Urania Galetta (eds). 2007. TRATTATO DI DIRITTO AMMINISTRATIVO EUROPEO (2nd ed). Milan: Giuffrè.

Craig, Paul. 2006. EUROPEAN ADMINISTRATIVE LAW. Oxford : Oxford University Press.

Schwarze, Jürgen. 2006. EUROPEAN ADMINISTRATIVE LAW (1st rev. ed). London: Sweet & Maxwell.

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© Copyright 2008 by the author, Jacques Ziller.

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FREE SPEECH AND HUMAN DIGNITY

by Steven J. Heyman. New Haven: Yale University Press, 2008. 320pp. Cloth $50.00. ISBN: 9780300114867.

Reviewed by Paul Weizer, Department of Social Sciences, Fitchburg State College. Email: pweizer [at] fsc.edu.

pp.587-589

This book, by Steven J. Heyman, Professor of Law at the Chicago-Kent College of Law, presents a theory of First Amendment jurisprudence which seeks to balance the sometimes inherent conflict between free speech and human dignity. To accomplish this, the author adopts a “liberal humanist” approach which seeks to balance concern for the human personality against broader concerns for free expression. Heyman then applies his theory to a wide range of current controversial issues such as hate speech, flag burning, abortion protests, and pornography in order to demonstrate how the balancing process would work in practice.

Part One, which consists of two chapters, considers the history of free speech jurisprudence in the United States. Chapter One explores the natural rights origins of the First Amendment covering the thoughts of such philosophers as Locke, Cato, and Blackstone. The chapter further explores the impact of these individuals on the thinking of Madison and the Federalists from ratification through the sedition controversies. Heyman finds that this “original” view of the First Amendment was that free speech was limited by the rights of others. In Chapter Two, Heyman looks at modern First Amendment jurisprudence which comes to view free speech issues as conflicts between individual and societal rights without any clear way to resolve the clashes. The famous views of Holmes and Brandies are the central focus of this chapter. Heyman sees this shift as problematic which leads to his proposed standard.

Part Two is then divided into four chapters which lay out Heyman’s rights based approach to the First Amendment. Under this theory, rights are based on respect for the human personality and each person’s right to self-determination. Heyman argues that the Framers understood free speech to be a natural right. Many of the problems associated with modern speech issues stem from straying from this view and can be resolved by returning to the roots of the right to free speech. As rights flow from a respect for human dignity, the limits on such rights become easier to define. One basic right of all man is the right to life and more broadly personal security. When speech endangers basic rights such as this, limitations are in order. This view is one with which it is hard to take issue. Heyman, however, takes a much broader view of basic rights. Another basic right he considers is the right of personality. This would include “unwarranted assaults on one’s mental and emotional well being” (p.54). Also included in the right to personality is freedom from invasion of privacy which is defined as “the right to maintain the integrity of one’s personality and inner life by preserving the boundary that separates them from other persons” (p.55). [*588] Heyman sketches the rights of personality as a continuum which ranges from rights to emotional tranquility and privacy to self expression through speech and conduct and then to image or reputation. Putting these into a “rights based” theory, the author explores not only the rights of free persons but also the rights of free persons to equality. While modern free speech jurisprudence often views liberty and equality as in conflict, Heyman views the two concepts as inseparably related. For Heyman, equality is tied to dignity, arguing that “to treat other persons as inferior or subordinate constitutes a denial of their worth as human beings.” It is with this focus that Heyman’s theory begins to take shape. In short, his liberal humanist theory is summarized as follows: “The same aspects that justify freedom of speech and thought also give rise to other fundamental rights, including personal security, personality, and full and equal membership in the community. In general, speakers have a duty to respect these rights. Conflicts between rights should be resolved in light of their relative place within the system of constitutional liberty” (p.78).

Accordingly, and most importantly, the author views the principal of content neutrality which is the core of modern First Amendment jurisprudence, as improper since much speech causes harm precisely because of its content. In Heyman’s view, content based restrictions should be allowable, and his approach set out to balance the value of the speech against the human dignity of the listener. Considering the breadth of the right to personality described above, this view would be a radical departure from the current view of the law.

Part Three is divided into five chapters, each exploring specific areas of disfavored speech and applying the author’s standard to resolve each conflict. Topics considered include subversive speech, incitement and threats, abortion protests, hate speech, and pornography. In applying the liberal humanist approach to these problems, a trend readily emerges. Where speech is directed toward the government or the public as a whole, it should be protected. On the other hand, speech that is directed at individuals or groups may often be regulated. Rather than look at content as the courts currently do, the touchstone of Heyman’s approach is the value of the human personality.

This approach advocated by the author has many benefits. Certainly it would provide consistency in an area filled with exceptions to the general rule of content neutrality. Accepting that content matters in considering the context of the speech in question could go a long way in resolving some of the thorny issues addressed above. On the other hand, determining exactly what is injurious to the human personality or the public interest opens up a whole new set of challenges. For example, in the chapter on subversive speech, Heyman considers cases dealing with the publication of classified material such as the Pentagon Papers. In applying his theory, he concludes that First Amendment protection should apply except in cases “where the defendant knew or clearly should have known that publication served no substantial public interest” (p.121). How one is to determine what the public interest is, especially whether it is substantial, is left unsaid. However, it is certainly not self-evident. In the examination of hate speech, Heyman [*589] argues that, contrary to the view of current courts, public hate speech should not be protected because it assaults the human dignity of its victims. However, he also contends that even political hate speech should not be protected “because it falls outside of a proper understanding of political debate” (p.179). In providing a basis for the scope of “proper political debate” the author looks to the International Covenant on Civil and Political Rights which, while valuable, is hardly a source based on the original intent of the Framers.

In sum, this book challenges the current state of free speech jurisprudence in American law by positing a theory which would protect most speech that challenges the government but limits much speech that attacks the rights of other people. In doing so, it is original and thought provoking and is sure to provide fodder for many fruitful discussions. It could be used in a range of undergraduate or graduate seminars dealing with civil liberties, civil rights, or equality issues. While many may take issue with the lines drawn, one does not need to agree with all of the conclusions in order to find utility in the approach of the author.

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© Copyright 2008 by the author, Paul Weizer.

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TRANSITIONAL AMNESTY IN SOUTH AFRICA

by Antje Du Bois-Pedain. Cambridge: Cambridge University Press, 2008. 418pp. Cloth. $120.00/£60.00. ISBN: 9780521878296. e-Book format. $96.00. ISBN: 9780511373015.

Reviewed by James L. Gibson, Sidney W. Souers Professor of Government, Department of Political Science, Washington University in St. Louis. Email: jgibson [at] wustl.edu.

pp.582-586

There can be little doubt that the most widely known and studied truth and reconciliation process in the world is that conducted by the South Africans. In part owing to its innovativeness – but in larger part owing to the perception that the process was instrumental in keeping South Africa from falling into the abyss of civil war and perhaps even into partition or destruction – observers throughout the world have sought to extract lessons for transitional justice and democratization from the South African experience.

As widely admired as the South Africa truth and reconciliation process is, many misconceptions still surround it. For instance, it is often asserted that the world views the process as fantastically successful, whereas South Africans view it as an abysmal failure. In fact, that (and many other misconceptions) turns out to be untrue (see Gibson 2005). That the South African process was a hybrid of criminal prosecutions and grants of amnesty is also not widely acknowledged. If the process in that country is to be held up as an exemplar for divided societies to follow in their quest for reconciliation, then much more about its actual operation must be analyzed and understood.

That is why this book by Antje Du Bois-Pedain is so important. More – much more – than any prior effort to date, Professor Du Bois-Pedain has taken the closest, most detailed, and most comprehensive look at the amnesty component of South Africa’s truth and reconciliation process. Her book is a tour de force, encompassing as it does both normative and empirical issues associated with the process. Generations to come will thank Du Bois-Pedain for her exposition of how and why South Africa provided amnesty to those committing gross human rights violations during the struggle over apartheid.

Divided into nine chapters, TRANSITIONAL AMNESTY IN SOUTH AFRICA, traverses a great deal of territory. One of the most unique contributions of this book is that Du Bois-Pedain takes advantage of a data base of more than 1,000 amnesty decisions made by the Amnesty Committee of the Truth and Reconciliation Commission. This enables her to show the strikingly high success rate of amnesty applications made by bona fide politically-connected applicants. Importantly, her statistical analysis suggests that the proportionality of the offense (whether the degree of violence of a particular gross human rights violation was appropriate to the political objectives being pursed) may not have had much influence on whether amnesty was awarded. She asserts: “This loss of any moral limit to the kind of [*583] thing that can be done in order to achieve a particular aim can be observed in the preparedness of the Committee to label as proportionate acts such as torture and the random killings of innocent, politically passive individuals in order to incite public violence to disrupt the elections” (p.126, emphasis in the original). Conclusions such as these, grounded in rigorous analysis of the actions of the Committee, abound in the book, are often counter-intuitive, and are therefore a welcome corrective to the folklore on what the amnesty process actually did in South Africa.

But Du Bois-Pedain’s study is far more than a quantitative accounting of the Amnesty Committee, as valuable as that exercise is. Instead of mere description, she also assesses the process in terms of its success at discovering the truth, empowering victims, and holding perpetrators accountable – all stated objectives of the process. In general, her conclusion is that the process did indeed achieve the goals set out for it, although a number of caveats attach to this generalization.

For example, a large number of applicants sought amnesty, and, within the terms of legislation, applicants generally provided considerable information about their deeds and their motives. While reluctant to refer to this as the production of “truth” (recall that the Truth and Reconciliation Commission itself argued that “truth” has at least five different meanings), her pragmatic approach to evaluating the amnesty process leads to the conclusion that more information was produced by that mechanism than would likely have been generated by any other means (e.g., criminal trials). Costs with such an approach clearly exist – due process was often sacrificed – but for learning who did what to whom, and why, often in the distant past, the amnesty process deserves considerable praise. The caveat here, often voiced by critics of the South African process, is that the larger context of the apartheid regime is sometimes obscured by focusing on the discrete actions of individual combatants – though, as Du Bois-Pedain reminds us, some advantage lies in the fact that amnesty applicants can account for their past deeds in terms of their own understandings of them, i.e., as political actions, and not (merely) as crimes.

As to empowering victims, she acknowledges that the amnesty process succeeded in providing victims opportunities for participation – to challenge the applicants’ versions of events and to have their own stories told and heard – even while acknowledging that the process was not centered on the victims and that many of the victims were dissatisfied with the process. Many of these issues are endemic and well analyzed within criminal justice processes, and in the South African amnesty process, as elsewhere, the requirements of the victims and the needs of the larger society often clash.

Accountability is of course the most significant weakness of any system for granting amnesty, and Du Bois-Pedain is appropriately critical of the failure of the victims (or the society) to receive retributive justice. But even on this score, her judgment is less severe than that of many human rights scholars and observers. In the South African case, it is widely acknowledged that criminal prosecutions of large numbers of those accused of human rights abuses were not [*584] feasible, both in terms of costs and the low likelihood of success (e.g., enormous amounts of resources were expended on the unsuccessful prosecution of former Minister of Defense General Magnus Malan). Given the South African reality – and the desire to learn about the past and extend dignity to the victims of the struggle – the amnesty process likely imposed about as much accountability as was possible. Moreover, the amnesty process often challenged amnesty applicants about the morality of their past acts. In doing so, “[the amnesty process] does not make these persons criminally responsible, but it makes their moral and political responsibility sting” (p.344).

In the end, her most interesting conclusions speak to the larger issues of the message the amnesty process sent to South African society on the issues of accountability and redemption. She argues that the amnesty process (coupled with the truth and reconciliation process) clearly condemned gross human rights violations, imposed at least some costs on most of those coming forward seeking amnesty, and, most generally, taught the larger society a lesson of redemption, forgiveness, and reconciliation. She asserts: “This mechanism meets the expectations and requirements of international law, in that it avoids impunity and helps to build a human rights culture and democratic commitment to the rule of law” (p.338). Many will object to these conclusions, but Du Bois-Pedain justifies them on the basis of pragmatism, and the superiority of amnesty to the alternatives – doing nothing to the perpetrators or attempting to prosecute them through the criminal justice system. In the end, irrespective of whether one agrees or disagrees with her conclusions, her position is soundly argued and grounded in a careful examination of both qualitative and quantitative evidence on the performance of the amnesty process. Little more can be expected of a treatise such as this.

Many attributes of this research are admirable. One tends to find in the human rights literature a moralizing, sermonizing tone to much of the discussion about topics like amnesty, with not a great deal of attention to the practical necessity of avoiding civil war and promoting the democratic transition. Du Bois-Pedain provides a nice mixture of overriding normative concerns, careful empirical analysis, and thoughtful examination of the pragmatic exigencies of a transition such as South Africa’s. Moreover, although much of the book reflects Du Bois-Pedain’s training and skills as a legal academic, she is a good social scientist as well, as in her intuitive observation that law is endogenous in processes such as these. This analytic blend of the-law-in-the-books, the-law-in-action, and the gritty reality of political transitions should be quite attractive to the readers of the LAW AND POLITICS BOOK REVIEW.

As much as I admire this work, I feel obliged to raise certain shortcomings of Du Bois-Pedain’s analysis. First, foremost, and quite common about analyses of the South African truth and reconciliation process, the book is heavily focused upon victims and perpetrators. This may seem an odd criticism inasmuch as the amnesty process directly involves investigating and judging perpetrators for their actions against victims. But that process was [*585] also about the transformation of South Africa, about its transition from a cruel and illegitimate system of white domination to a vibrant, multi-racial democracy. As such, the process far transcended the needs of and consequences for victims and perpetrators. Indeed, to the extent that the truth and reconciliation process actually sought societal-level reconciliation, perhaps it is the assessments of the amnesty process by bystanders (the vast majority of South African society) that are most crucial for the future of the democratic experiment in that country. One can imagine, for instance, that the needs of the victims are not paramount in an amnesty process (as they typically are not in the criminal justice system) and that the most important goal of the amnesty process is to ensure that victims and perpetrators do not become spoilers of the transition, and that ordinary people view the process as to at least some degree just. To be fair, Du Bois-Pedain does address this issue to at least some degree since she often mentions the larger social and political contexts in which the amnesty process was embedded; and, to be honest and forthright, the subject of my book – OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? – is precisely the question of how the process contributed to South Africa’s transition, so my substantive interests are located more at the societal level than at the level of victims and perpetrators. Nevertheless, more attention to the consequences of the amnesty process for building democratic institutions and processes in South Africa would have improved and broadened the analysis.

I should also note that Du Bois-Pedain seems to have a too limited understanding of justice, as least for my taste. While she compares and contrasts retributive and restorative justice paradigms in her chapter on accountability in the amnesty process, many other forms of justice are implicated in amnesty processes – distributive, retributive, restorative, and procedural, for instance – and it is often the case that one form of justice can compensate for failure to receive another form. Procedural justice is an important concern within South African politics. Whether the amnesty process was judged to be fair depends not just on retributive concerns (for which an obvious justice deficit is produced by granting amnesty), but also on whether procedures were thought fair, whether victims received some form of compensation, and whether the process was attentive to restoring the dignity of both the victim and the society victimized by apartheid.

These reservations aside, this book is a “must” for anyone who seeks to understand the transitional justice process in South Africa. Stripped of ideology, with over-arching normative questions addressed but lurking primarily in the background, this descriptive and analytical research will long stand as the definitive statement of how the South African amnesty process operated and unfolded during this crucial period of South African history. I heartily recommend the book to those concerned with processes of transitional justice and democratization, in South Africa, and throughout the world. [*586]

REFERENCES:
Gibson, James L. 2004. OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? New York: Russell Sage Foundation.

Gibson, James L. 2005. “The Truth About Truth and Reconciliation in South Africa.” INTERNATIONAL POLITICAL SCIENCE REVIEW 26 (#4, October): 341-361.

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© Copyright 2008 by the author, James L. Gibson.

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