RECONSTRUCTING THE FOURTH AMENDMENT: A HISTORY OF SEARCH AND SEIZURE, 1789-1868

by Andrew E. Taslitz. New York: New York University Press, 2006. 368pp. $50.00. Cloth. ISBN: 0814782639.

Reviewed by Priscilla H.M. Zotti, Department of Political Science, United States Naval Academy. Email: zotti [at] usna.edu.

pp.282-285

In his book, RECONSTRUCTING THE FOURTH AMENDMENT, Andrew Taslitz provides the reader with an aspect of search and seizure not often considered; the role of the amendment with regard to the African American experience and the impact this had on passage of the Fourteenth Amendment. Taslitz focuses on search and seizure practices during slavery and Reconstruction and the contributions of this experience in shaping the Fourteenth Amendment as well as the Fourth Amendment.

The vivid portrait of the struggle of the colonists against the British Crown and the abuses utilizing aggressive and oppressive search practices is well documented. Students of the Fourth, schooled on the works of Telford Taylor and Nelson B. Lasson are familiar with this rich history. In THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION, Lasson documents the struggle colonists experienced as repeated victims of aggressive search and seizure. He recounts the seizure of John Hancock’s sloop Liberty by authority of a writ of assistance and the search aspect of the Stamp Act that contributed to the Boston tea party. Taylor’s work, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION, also notes the chronic problem of writs of assistance and general warrants both within Great Britain and in colonial America. However, the use of search and seizure in protecting the status quo of slavery is less known. Taslitz’s contribution is to make the history of the Fourth Amendment even richer by meticulously accounting the use of search and seizure practices to support slavery and racial discrimination. (The author includes sixty three pages of documentation.) Recounting the abuse and indignation of general warrant searches, many colonists equated their treatment at the hand of the British to that of slavery. The metaphorical use of slavery to describe the search by low level customs officers connected illegal searches and seizures to political subjugation by the British. Professor Taslitz places the Fourth Amendment in the larger context of rights of the people, all people. Not merely a technicality, the Fourth Amendment protects core interests essential to human flourishing, those of privacy, property, and freedom of movement.

The book convincingly makes the case that Fourth Amendment violations are much more than cases of criminal misconduct and police authority. Our commonplace imagery of the Fourth as a technicality sells the Amendment short. The history of the Fourth makes clear that the right of the people to be protected against unreasonable searches [*283] and seizures entails much more. Professor Taslitz’s premise is that “understanding the meaning of today’s Fourth Amendment requires study of the evolving meanings of search and seizure during the fight to end slavery, for it was that fight that motivated and defined the drafting and ratifying of the Fourteenth Amendment” (p.12).

The book’s premise is carried out in three broad themes. Search and seizure invaded privacy, free expression, and was used particularly to curb political dissent. Secondly, search and seizure involved property rights, particularly of slave owners, and finally, freedom of movement is curtailed by seizure provisions.

When revolutionary leader, James Otis, protested the British use of writs of assistance as the precursor to searches, John Adams said, “then and there was the Child Independence born” (p.17). State sponsored suppression triggered a chain reaction of upping the ante of protest, dissent and violence. Political dissent was then quashed with the tools of abusive search and seizure. Whether the heavy handed actions of the state took place in Great Britain or in the colonies, public outrage at surreptitious searches and seizures as a tactic of control was intense. Professor Taslitz notes the high profile prosecution of John Wilkes and later that of John Entick as illustrative of the connection between search and seizure and the principle of free speech and public dissent.

Another consequence of the Fourth Amendment was to facilitate continued bondage of slaves by using search and seizure laws as a tool of the majority. The backdrop of antebellum slavery and then Reconstruction provide a fresh approach to understanding the motivations of constitutional change. The author carefully makes the case that slavery was bolstered by the provisions of search and seizure and ultimately forced change through the vehicle of the Fourteenth Amendment. For example, the infamous Black Codes made crimes “race specific” to slaves, such as leaving a plantation. Search and seizure played a role in racial domination that surrounded the Fourteenth Amendment. The book sets forth the abuses of searches and seizures as an enforcement tool of the runaway slave provision that the framers included in the Constitution.

The author notes the high court struggled in the fugitive slave clause cases with inconsistencies of the practices of rendition and the Fourth Amendment. These were essentially kidnapping cases, where individuals received monetary reward for capturing runaway slaves. The court did not align the Fourth’s search and seizure protections with the facts. The argument is this: “in a free state every man is prima facie a free man who is at large. If so, he comes under that class called ‘people’; and the right of ‘the people’ to be secure in their persons against unreasonable seizures is guaranteed in the Constitution. Ay! But he is a slave, say the opponents of this doctrine. But that is not admitted. The very question at issue is slave or free. Now so long as he is not proved a slave, he is presumed free, and, therefore, if you seize him, it is a violation of this constitutional privilege” (p.164, quoting [*284] from PRIGG v. PENNSYLVANIA, Summary of Oral Arguments, reported by Kurland and Casper 1978).

Privacy claims for slaves concerned their separate lives from their masters, both in terms of location and sociability. The insights that Professor Taslitz provides into the daily lives of slaves is fascinating and revealing culturally. Medicine, art, music, religion, trading, and bartering, are all a part of the underground and separate private lives of slaves. Part of the richness of the counterculture gave fuel to abolitionists to use these examples of enlightened life as evidence that slavery was anachronistic. At times the author strays from the search and seizure aspect of slavery and the abuse of African Americans. However, the richness of history and detail are worth the occasional diversion.

Congress passed the Civil Rights bill on April 9, 1866 extending fundamental rights, including the Fourth Amendment. The author notes that there is some discussion of incorporation in the Civil Rights Act of 1866, particularly the Fourth, a few years after the Fourteenth was ratified. Although it is noted that there was rejection during debate of the idea that the privileges and immunities clause applied to the first eight amendments, one could understand that it included the 4th, 5th and 6th. These amendments captured the belief of protection against abuse by the state. Still, the dreaded Black Codes often contained search and seizure provisions. Unjustified arrests, beatings, authorized whippings and lynchings, invasions into homes and the seizure of individual firearms continued.

What are the implications of an antebellum Reconstructionist history of the Fourth? – certainly a richer context. Teased out of this are some concepts worth noting. The author contributes to our understanding of the idea of individualized justice in the face of collective persecution. The book emphatically and convincingly makes the case that, duing this period, race, membership of a particular class if you will, was enough to convict and punish. These guarantees that we take for granted as individual were collectively dismissed in the beginning of our country. Probable cause is particularized to the person or place or thing to be seized, yet when individuals were treated like property our concept of justice did not give any individual relief. All told, the author makes ten observations that indicate that the history he sets forth has broader connections to our general sense of law and Fourth Amendment law in particular.

Finally, Taslitz ends with the currency of the Fourth Amendment. In the wake of terrorism, what role does the Fourth Amendment play in curtailing dissent, political activity that would be deemed radical, the deployment of technology in the name of safety and security? So his meticulous history turns to a fast-paced discussion of how in a post 9/11 society we cope with race, terrorism and technology. The chapter is brief, giving only one or two examples of the current application of the rich history that preceded. As the author explains, this is not a conclusion but the fruits of an [*285] ongoing conversation. Hopefully the results of this dialogue will be forthcoming. In many ways this approach left me thinking about the book long after I completed it.

I found RECONSTRUCTING THE FOURTH AMENDMENT insightful in its approach to the Fourth Amendment, not only in terms of the law itself, but what is searched and seized, who particularly is subject to search and seizure, and what abuses led to broadening, thus capturing the full rich detail of the Fourth Amendment. Abuse by the state in the 18th century, and by the state via the police in the 19th century, comes with a discriminatory aspect, utilizing the provisions of the Fourth to keep the powerless more powerless and to treat minorities as minorities.

The Fourth Amendment is fascinating primarily because of its commonplace role in American life. It is the daily ability of the state to potentially abuse those who have no power via finance, voice or position. Race and slavery are part of the American experience. Professor Taslitz shows us in thorough fashion that we would be wise to learn from the past as we address the problems facing our society. I recommend RECONSTRUCTING THE FOURTH AMENDMENT: A HISTORY OF SEARCH AND SEIZURE, 1789-1868 to any student of constitutional and legal history as a thoughtful and well-written source of the rich context of this constitutional right and its implications.

REFERENCES:
Kurland, Philip B., and Gerhard Casper (eds). 1978. LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW (Vol. 2). Frederick, Md. :University Publications of America.

Nelson B. Lasson. 1937. THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION. Baltimore: Johns Hopkins University Press.

Telford Taylor. 1969. TWO STUDIES IN CONSTITUTIONAL INTERPRETATION. Columbus: Ohio State University Press.

CASE REFERENCE:
PRIGG v. PENNSYLVANIA, 41 U.S. 539 (1842).

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© Copyright 2007 by the author, Priscilla H.M. Zotti.

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HOW LAW KNOWS

by Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey (eds). Stanford University Press, 2007. 224pp. Cloth, $50.00. ISBN: 0804755256.

Reviewed by Paul Lermack, Department of Political Science, Bradley University. Email: pnl [at] bumail.bradley.edu.

pp.277-281

If law had a formal existence, what would it be like? That is, if law were an entity, like a person or an institution, how would it experience the world? How would it perceive, communicate or feel? Though law is not an entity, or not just an entity, it may nevertheless be useful to examine it from this perspective.

Since the 1990s, this vantage point has been occupied by Austin Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Alone or with various collaborators, Sarat has edited collections that explore various aspects of the relationship that law-as-entity would have to have with the rest of the world. How, for example, does law perceive the spatial dimension involved in such concepts as domestic/foreign or “like ourselves”/”unlike ourselves” (Sarat, Douglas and Umphrey, 2003)? What does law “feel” when it inflicts violence (Sarat, 2001; cf. Sarat and Kearns, 1991a) or even kills (Sarat 1999)? What does law do when it finds itself responding to new challenges, like efforts to establish the rule of law in countries in which it previously has not existed, the emergence of vocal minorities, or intellectual attacks from feminism, postmodernism and other developing ideologies (Sarat and Kearns, 1991b)?

The most recent previous book in this series, THE LIMITS OF LAW (Sarat, Douglas and Umphrey, 2005), presents six essays dealing with acts of terror, states of emergency, gestures of surrender, amnesties, reparations, and various attempts at reconciliation and healing. The authors explore, for example, the red scares of 1919-20, the question of paying reparations for slavery, and the applicability of legal procedures to illegal combatants during the present war on terror. In each case, the law found itself dealing with extraordinary situations with a tool kit of procedures and powers developed for routine and better-understood matters. Though it initially appears that law is unsuited to these tasks, the authors find that it responds, in each case, dynamically; it becomes concerned with its own development, renewal and regeneration. The essays “tell how law is challenged, frayed, and constituted out of conditions that lie at the farthest reaches of its empirical and normative force” (2005: 17).

Like THE LIMITS OF LAW, the present volume is an entry in the Amherst series of publications in Law, Jurisprudence and Social Thought. It examines various aspects of the ways in which “legal officials gather information, assess factual claims, and judge people and situations” (p.1). It is not about what law knows. Rather, it is [*278] about how law converts data into decisions. This focus puts it squarely into a long-existing field of scholarly controversy. As information-collector and -processor, law has been extensively criticized; its deficiencies have been catalogued, examined, and held up to blame.

At least since Jerome Frank’s icon-shattering COURTS ON TRIAL (1949), critics have concluded that law knows almost nothing except what litigants choose, for their own reasons, to bring to the attention of passive judges. Even then, information may be screened out by restrictive rules of evidence, thrown out of context or discredited by cross-examination, neglected by unspecialized judges who have been led astray by their own biases or who have their eyes fixed on re-election politics, or just plain ignored by lazy or incompetent jurors. Indeed, much of what law does runs counter to what passes for wisdom in other areas of life. Law proceeds by screening out information, rather than by trying to collect as much as possible. It allows specialized information to be evaluated and weighted by people chosen for the task precisely because they are not specialists and know nothing about it. Finally, it requires those evaluators to confine themselves to answering questions propounded before any information is examined, rather than allowing insight to be obtained from the data directly.

Legal procedures seem to be so inconsistent with the rational decision making model that economists hold out as an ideal, and that the best-run enterprises strive to emulate, that Frank concludes that court-determined facts are no better than guesses. The outcomes of lawsuits are random and unpredictable. So irrational is the process that Frank suggests that it must be guided by unexplored Freudian motives, and aimed at some subconscious goal other than accurate fact finding. Though few scholars will go so far as Frank, many have urged reform of rules of evidence, jury procedures, and jury instructions. Recent controversies over the inappropriate influence of junk science, the unacceptably high percentages of false capital convictions in Illinois and elsewhere, and the improper ascendancy of the originalist fallacy all testify, in various ways, to the all too real difficulty law has in obtaining and using information.

Sarat and his associates argue, however, that law has various ways of knowing. All have developed “in response to developments both internal and external to law itself” (p.1). Though some methods suffer from the defects identified by Frank and others, other methods are perhaps too linked to common attitudes and behaviors, and may suffer from the influence of prevailing prejudices. Presumably, the strengths and weaknesses of each must be studied separately.

The five substantive contributions use varying methods. Barbara J. Shapiro mines the documentary record of the period 1500-1850 to examine how the concepts of “fact” and “proof” developed in the law, concluding that law developed a kind of objectivity – a separation of the notion of fact from the ideal of truth – that later influenced [*279] historians, theologians, philosophers and natural scientists. Classical and medieval models had been quite different.

Donald Braman and Dan M. Kahan redefine the philosophy of legal realism, arguing that what behavioral studies support is a kind of cultural relativism in knowing. Reviewing the empirical literature on the ways in which judges and juries determine facts and decide cases, they find that even when those actors try to behave strategically their knowledge is largely affected by what they bring to the table. Their knowing is culturally mediated, a state of affairs the authors call cultural cognition.

Robert P. Burns reviews the prevailing theory of how jurors know – which he calls the received view, and which is heavily influenced by narrative and literary theory – and argues that in reality the jurors’ knowing is a lot more constrained by rules, and by the legal situation itself, than the received view allows for. He has previously argued (1991) that the legal situation has its own rules and requirements. As a result, its decision-making task is unique. Narrative, and its shaping influence, is different in trials than elsewhere. He continues his argument here, stressing the extent to which law’s choice of method is heavily influenced by its need for practicality.

The need for practicality is a running theme also in David L. Faigman’s contribution, on fact-finding in constitutional cases. In the received view, based on the work of Kenneth Culp Davis, adjudicative facts relate to who-did-what. These are determined by the trier of fact in each case. But other kinds of facts figure prominently in constitutional adjudication. Faigman attempts a taxonomy and classification. Facts relating to the task of establishing facts, or to the process of deciding cases, can be established by legislatures, or by tradition. In the constitutional arena, represented by the cases Faigman discusses, they seem heavily influenced by political or cultural requisites. Law knows, for example, that racial segregation is harmful.

Finally, Valverde discusses various methods that have been used for the study of how law knows, and argues that the relatively new approach of actor-network theory (ANT) has made useful contributions and holds out the promise of making more. Drawing on her own empirical work on drinking and driving cases, she argues that imputed knowledge plays a significant role in factual determinations.

The contributions are at different levels of abstraction, deal with different areas of the substantive law, and reach varying conclusions. Some are more concerned with difficulties or dangers in studying how law knows rather than in the ways of knowing themselves. And all focus on one way of knowing, the adversary method as it plays out through testimony during litigation in courts. Taken as a group, the five studies do not provide much support for a general thesis that law has many different ways of knowing, each with its own strengths and weaknesses. [*280]

But one valuable and perhaps unanticipated theme emerges: law’s decisions are heavily influenced by whatever knowledge the triers of fact bring with them when they enter their courtrooms. This can include a sense of the importance of the task, or an awareness of practical or political needs, or simply an acceptance of popular prejudices. It can be called imputed knowledge, mediating cultural cognition, preexisting rules, or simply a collection of biases. Sarat argues that law knows in many ways, “some strange, others familiar, some highly ritualized and formal, others informal and grounded in social practice” (p.19). That’s one way of putting it. However, one could also say that law does not know so much as it assumes and deduces. It fits testamentary material into the framework that is already there. That is the “ground[ing] in social practice.”

If that is an established reality, it is also an obvious danger. Unless the cultural conditioning is made explicit, and unless the narrative requisites are constantly re-examined, law may “know” that African Americans are genetically inferior, that women are genetically unsuited to such vulgar tasks as the practice of law, or that persons called to the Protestant ministry are incapable of telling lies and perjuring themselves. The procedural law, based on long experience, is meant to bring under control future versions of such conclusions. Law-as-rules represents an effort of law’s better nature, an attempt to keep the biases inherent in law-as-entity’s efforts at knowing from having an entirely free hand.

If this is so, then perhaps the problems that Jerome Frank identified so many years ago can be clarified. The restrictive rules of evidence and the other barriers to law’s knowing may be necessary. The task of knowing may be so subject to infection by prejudice that it must be limited at every stage. The trier of fact must be kept on the narrowest and best-defined path. Perhaps it is not a good thing that law has many varied ways of knowing, some grounded in social practice—unless other ways of knowing are explicitly not grounded in social practice.

Some of Sarat’s edited collections emerge from his classroom work and all, including this latest one, have obvious classroom applications. But there is also a scholarly value in this work taken as a whole. Over time, the contributions have identified, showed the pervasiveness of, and partly fleshed out, something in law that is dynamic, adaptive and creative. While so much sociolegal work treats law as essentially passive – as something that people invoke and use for their own purposes – Sarat reminds us that law has goals of its own, and can adapt to move toward them. This volume may be somewhat wider of its intended mark than its predecessors, but it points in the same direction. If the volume implies a need for attention to the procedural law, as I think it does, it also reminds us that those procedures were developed by courts over time. In the past, law has grown and changed when it was “challenged, frayed, and constituted out of conditions that lie at the farthest reaches of its empirical and normative [*281] force” (Sarat, Douglas and Umphrey, 2005:17), and it may do so again.

REFERENCES:
Burns, Robert P. 1991. A THEORY OF THE TRIAL. Princeton: Princeton University Press.

Frank, Jerome. 1949. COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE. Princeton: Princeton University Press.

Sarat, Austin (ed). 2001. LAW, VIOLENCE AND THE POSSIBILITY OF JUSTICE.
Princeton: Princeton University Press.

Sarat, Austin (ed). 1999. THE KILLING STATE: CAPITAL PUNISHMENT IN LAW, POLITICS AND CULTURE. New York: New York University Press.

Sarat, Austin, Lawrence Douglas and Martha Merrill Umphrey (eds). 2003. THE PLACE OF LAW. Stanford: Stanford University Press.

Sarat, Austin, and Thomas R. Kearns. 1991a. “A Journey Through Forgetting: Toward a Jurisprudence of Violence,” in Sarat and Kearns (eds). THE FATE OF LAW. Ann Arbor: University of Michigan Press, 209-275.

Sarat, Austin, and Thomas R. Kearns (eds). 1991b. THE FATE OF LAW. Ann Arbor: University of Michigan Press.

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© Copyright 2007 by the author, Paul Lermack.

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INSTITUTIONAL GAMES AND THE U.S. SUPREME COURT

by James R. Rogers, Roy B. Flemming and Jon R. Bond (eds). Charlottesville: University of Virginia Press, 2006. 320pp. Cloth. $60.00. ISBN: 0813925274.

Reviewed by Jeffrey K. Staton, Department of Political Science, Florida State University. Email: jstaton [at] fsu.edu.

pp.273-276

INSTITUTIONAL GAMES AND THE U.S. SUPREME COURT, edited by James R. Rogers, Roy B. Flemming and Jon R. Bond, contains essays on familiar puzzles in the institutional analysis of law and courts. Why would a legislature construct an independent judiciary? Why does the “weakest branch” seem largely, but not always, to find compliance with its decisions? Why are lower courts in a hierarchy bound to the rules established by higher courts, yet higher courts are permitted to disregard their own past decisions? The answers to these questions and others provide examples of how game theory can be used to illuminate important substantive questions. Contributors also identify clear empirical implications of their arguments, and in some cases present tests. Thus, INSTITUTIONAL GAMES reflects the discipline’s increased interest in more tightly linking theoretical and empirical models.

While the empirical content is enlightening, the book’s most attractive feature is its attention to valid argumentation, which makes it an excellent resource for teaching how to construct theoretical explanations, whatever the substantive field of interest. Enhancing the ease of use in this regard, the editors have appended a game theory primer to the end of the volume, which while no substitute for an introductory textbook on the subject, provides accessible descriptions of theoretical concepts that emerge in the chapters. None of this is to say that the authors’ varied modeling choices are unassailable. Still, even when assumptions are questionable and seem to drive key theoretical claims, the choices are perfectly clear. Consequently, readers easily may consider the implications of altering these choices. In short, the clarity with which arguments are constructed in INSTITUTIONAL GAMES invites the sort of intellectual play so useful and fulfilling in the classroom.

The volume is divided in two substantive parts, one that addresses the Supreme Court’s inter-branch relationships and another that centers on questions of judicial hierarchy. Whatever the substantive focus, two theoretical issues lay at the core of INSTITUTIONAL GAMES. How do problems associated with potential non-compliance and informational asymmetries between actors in a hierarchy influence institutional design and performance? Conceptualized in this way, the volume’s essays do not merely address puzzles in law and courts, but speak to larger points of concern in the analysis of political rules.

Contributors address problems of compliance in a number of contexts. Hammond, Bonneau and Sheehan ask [*274] how a circuit court might successfully deviate from existing Supreme Court standards. The key insights, which depend on the logic of a modified agenda setter model, are that preference change at the level of the Supreme Court and the Court’s own need to craft a majority opinion create opportunities for lower courts to profitably disregard past decisions. In equilibrium, what might initially look like lower court non-compliance is translated at the Supreme Court into good, albeit new law. Continuing the theme of decision-making in a hierarchy, Lindquist and Haire consider the implications for circuit court decision-making when we conceive of the Congress as an additional principal (i.e. in addition to the Supreme Court). Their results suggest that, while the Supreme Court influences circuit court decisions, so does the Congress. Moreover, the impact of the Supreme Court is conditioned by the clarity of its decisions. These results suggest that agency models of circuit court behavior might consider the multiple hierarchies in which circuit court judges operate.

Papers by Vanberg and by Rogers and Carrubba ask what we should infer about judicial power from observing a court that is obeyed as a matter of course and defied only on occasion. Both essays reflect a key lesson in formal theories of institutions. Inferring power from compliance is a dangerous business, precisely because systematic compliance is consistent with powerful courts that would not be defied under any conditions and with weak courts that strategically avoid conflicts when non-compliance would be a highly probable result. Importantly, if we are to observe the indicia of institutional weakness that emerges when compliance is a problem, we do better to train our empirical eye on the decision-making process itself rather than the process of implementation.

Essays by Martin and Zorn do exactly that. These authors develop and test competing theoretical claims regarding the influence of congressional and presidential preferences on Supreme Court decision-making, many of which may be motivated by an underlying compliance problem. Zorn finds evidence that the Supreme Court is sensitive to drastic changes in the national political landscape, suggesting that independent courts do not necessarily serve the political interests of their designers. Even more striking, Martin’s results suggest that, while the Supreme Court seems unlikely to respond to the preferences of external actors in statutory interpretation cases, it is sensitive to the preferences of the president in constitutional cases. The logic behind this result is that the consequences of inter-branch conflict over constitutional questions are enormous relative to the consequences of conflict over statutory interpretation. While Congress can resolve the latter by amending relevant statutes, if majorities are insufficiently large, constitutional impasses implicate the non-compliance problem directly. Where the governing coalition is not large enough to amend legally an unfavorable constitutional decision, simply ignoring the resolution can solve the problem. On Martin’s account, if that outcome is extremely costly to the Court, it should be [*275] especially careful in constitutional cases. In so far as the debate in American politics over strategic judicial decision-making has largely assumed away the possibility for external influence in constitutional cases, this result, perhaps more than any other in the volume, has the capacity to turn a literature on its head.

Turning to essays where information problems take center stage, Rogers seeks an explanation for deferential standards of judicial review, under which a judge, potentially better informed than any individual legislator, will nonetheless defer to the legislature’s wishes. The answer here lies in the power of institutions to aggregate information and not just preferences. As long as a judge is insufficiently certain of an empirical fact, she does better, in expectation at least, by deferring to the aggregated evaluations of many (potentially) flawed legislators.

Cameron and Kornhauser, in perhaps the most adventuresome theoretical exercise in the volume, address how the tiers of a judicial hierarchy might be designed to resolve uncertainty over the “right” legal or factual decision. The authors depart from standard assumptions about judicial behavior where judges primarily care about policy outcomes and certainly differ in preferences from other judges. In contrast, Cameron and Kornhauser assume that all judges in the hierarchy are identically concerned with minimizing errors produced in the entire judiciary, errors which would be possible to eliminate with the right information. In this sense, individual judges are members of a judicial team. They demonstrate that a three-tiered hierarchy, where designers minimize the chance of error at the top tier, can powerfully resolve the judiciary’s uncertainty problem. The logic is that strategic litigants, who become perfectly informed about the legal or factual truths that are of interest to the judiciary, are incentivized to police legal opponents through appeals. In the process, they reveal their private information.

Continuing the metaphor of a team, Bueno de Mesquita and Stevenson develop a model of decision-making in a hierarchy in which lower court judges sincerely attempt to implement higher court decisions, but are uncertain about how to do so precisely. In such a world, precedent serves to improve communication across tiers of a judicial hierarchy. The utility of a line of precedent is that it reduces the lower court judge’s uncertainty about an existing legal standard; however, this reduction in uncertainty is not costless to the higher court, especially if it wishes to alter the nature of the existing rule without explicitly breaking the line. The idea is that drafting such an opinion requires significant effort from the opinion writer. Consequently, the higher court must trade-off the ease of changing a rule by breaking a line of precedent for the reduction in lower court uncertainty over the existing rule. In summary, a flexible doctrine of stare decisis, at least as it concerns how the Supreme Court ought to treat its own decisions, is a direct consequence of using lines of precedent to improve communication.

Despite the overall quality of the essays, perhaps because of that quality, a [*276] number of questions remain. To be fair, the authors raise some of these questions themselves. Consider the Hammond, Bonneau and Sheehan model, in which it is possible for a circuit court to induce new legal rules at the Supreme Court level by strategically resolving its own cases. This result depends critically on the assumption that the majority opinion writer at the Supreme Court is able to make “take it or leave it” offers to the remainder of the Court, pitting a new legal state of affairs against the status quo. Under this assumption, we can observe equilibrium legal rules that do not reflect the preferences of the median justice. If we let the Court operate via an open amendment rule, which seems to be a better reflection of Supreme Court practice, it is unclear whether the circuit court’s influence would remain. Likewise, we might ask whether Cameron’s and Kornhauser’s striking result concerning the optimality of a three-tier judiciary for reducing errors in a judicial hierarchy is highly sensitive to their assumption that litigants become perfectly informed of the truth. Are four tiers really no better than three if this is not true? Moreover, as the authors themselves wonder, does it even make sense to think about an empirically “true” legal interpretation?

Returning to the compliance problem, both Rogers and Carrubba and Vanberg assume politicians pay some sort of exogenous cost for defying a constitutional court. Vanberg explicitly assumes that this cost is induced by something like the legitimacy of the high court. We might wonder in each model whether these costs are endogenous to the way that courts resolve their cases? Are they constant over time? If judicial legitimacy were itself a function of time, which is consistent with the empirical literature, then it would seem like these costs would vary temporally. But how? In answering that question, we may gain an understanding of how a weak court might evolve into a strong one.

That the book leaves many questions unanswered is a virtue, especially since answers to these questions seem neither obvious nor impossibly complicated. Consequently, INSTITUTIONAL GAMES contains nearly everything for which a scholar looks in an edited volume. There is a clear statement of purpose. Individual contributions actually manage to deliver on that purpose; and, readers are left with questions that beg for additional research.

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© Copyright 2007 by the author, Jeffrey K. Staton.

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CHANGING INTERNATIONAL LAW TO MEET NEW CHALLENGES: INTERPRETATION, MODIFICATION AND THE USE OF FORCE

by Andreas Laursen. Copenhagen: DJØF Publishing, 2006. 348pp. Paperback. $51. €48.00 / £31.00 / $60.00. ISBN: 8757415293.

Reviewed by Akbar Rasulov, School of Law, University of Glasgow, United Kingdom. Email: a.rasulov [at] law.gla.ac.uk.

pp.263-272

THE FIRST IMPRESSION

This book has two main merits: it reads fast and it is very rich in detail. The author clearly must have spent a lot of time collecting his materials and checking his sources. The amount of factual information packed into CHANGING INTERNATIONAL LAW TO MEET NEW CHALLENGES (CILMNC) is simply staggering. From the details of the oral pleadings in a forty-year-old International Court of Justice case to the White House press briefings, the extent of data covered, especially in the footnotes and asides, is openly overwhelming. I have not read his other works yet, but on the strengths of this showing, Andreas Laursen seems to be one of those rare scholars who has read virtually everything that has ever been said or printed on their topic and who always seems to have a footnote ready to prove it. CILMNC references everything and anything from the half-forgotten dissenting opinions to legal theory volumes, the preliminary reports of UN working groups, and articles in The New York Times. The intensity of such a single-minded commitment is nothing short of remarkable.

The second thing that is most striking about CILMNC is the astonishing number of typos, spelling mistakes, and other irregularities of formatting it carries. On one occasion, within the space of less than half a page, the referencing style for scholarly works changes three times (p.11). On another occasion, an informal acronym for an international convention is introduced into the text (p.16) nine pages before it is actually spelled out (p.25). “Point” turns to “pint” (p.128), “ministerial” to “ministrial” (p.130), “Congress” to “Congoress” (p.276). Personal names hardly fare better. “Chesterman” repeatedly loses the first “e” (pp.15, 21, 303), “Philippe Sands” becomes “Philip” (pp.242, 313), Myres McDougal is called both “Myres” and “Myers” (pp.48, 154); Dino Kritsiotis, both “Dino” and “Dina” (pp.174, 223, 283). Not all of these, furthermore, are just regular typos: the English “Byers and Nolte” routinely changes to the Danish “Byers og Nolte” (pp.10, 167, 185, 189, 293). It is difficult to say whose fault all this must be in the end, the author’s or the publisher’s, but in either case, one feels, one had the right to expect a higher standard of editorial due-care from a volume that began its life as a doctoral thesis defended at the European University Institute in Florence (p.v).

THE PRAGMATIC SIDE: WHAT IS CILMNC ABOUT AND WHO ARE ITS TARGET AUDIENCE? [*264]

The best way to understand the pragmatic aspect of CILMNC would be to approach it against the background of the broader scholarly field in the midst of which it tries to situate itself. Keeping in mind the alleged cultural differences dividing the North Atlantic international law community, the first thing to be said about CILMNC is that it reads and “acts” as a very European work written on a very European topic. One of the most revealing patterns of European international law scholarship in the last decade or so has been the rapid renewal of interest in publishing single-author books about international law on the use of armed force (jus ad bellum). At least a half-dozen monographs have been produced in recent years in France alone. Even more have been produced in Britain and the Netherlands. The quickest way to describe CILMNC in this context would be to say that, on the one hand, it represents one of the most typically “continental” contributions to the newly blossoming genre, while, on the other hand, it still manages to share all the genre’s usual strengths and, inevitably, all of its traditional weaknesses.

In Laursen’s own words, the central objective behind CILMNC is to attempt a comprehensive overview of the various customary law trends that have taken shape in the jus ad bellum field since the mid-1990s, with special emphasis on questions of international terrorism and humanitarian intervention. As the recent history from the 1999 Kosovo campaign to the inception of the so-called “war on terror” shows, argues Laursen, academic developments in the field of jus ad bellum have been and continue to be exceptionally important. “The academic debate matters,” he writes, pointing out the fact that the judges on the ICJ not only “care enough to express concern” about it, but even go so far as to engage with it openly. What this means, obviously, he explains, is that the development of the scholarly consensus in this area certainly has an impact on development of the broader international legal process (p.15). Consequently, it could hardly be more urgent to try to set the record straight on who is right and who is wrong among the jus ad bellum scholars, and that is exactly the first main task of CILMNC.

The first category of those who are clearly wrong, begins Laursen, has been identified by the ICJ judges themselves. In a recent ICJ case, he notes, an eminent European judge very anxiously pointed out that “an increasing number of writers appear to prepare for the outright funeral of international legal limitations on the use of force” (p.14). Who exactly did he have in mind? The judge in question did not go so far as to name any particular names. His ad-hoc colleague, however, taking advantage of the opportunity, openly identified the former US ambassador to the UN, John Bolton, as the ideological leader of the pack (p.14). A few paragraphs later, a quote from Byers and Chesterman adds a further clarification, providing CILMNC with its first political premise: “a novel conception of international law . . . is being constructed and reinforced by a limited group of Anglo-American international lawyers” (p.15). The most important representative of this limited group, continues Laursen, is Tufts [*265] University professor, Michael Glennon (pp.15-20).

Glennon’s main argument, according to Laursen, essentially boils down to the view that “the regime governing the use of force, that has been established by the UN Charter, has collapsed” (p.16). That view, Laursen argues, is completely and irredeemably wrong. It is not based on any reliable body of evidence. It does not have behind it a rigorous theoretical argument. More importantly, it also betrays a very troubling professional and political ideology. Quite predictably, against such a background, sharing the ICJ judges’ profound concerns about the potential impact the “funeral” of jus ad bellum may have on the stability of the world public order, Laursen decides to write a response to Glennon and Co. to ward off their attack and defend the professional culture of international law scholars’ fighting for the triumph of the international rule of law.

Alas, the first problem with that conception is that it seems to have largely failed. The immediate project into which the idea was transformed was fundamentally misconceived both from the practical and the professional-political points of view. Releasing a monograph in continental Europe in response to a series of articles published in the United States is not, on any interpretation of events, an effective way to wage a professional-political struggle. What kind of audiences could one expect to reach and win this way that have not already been reached and, where possible, won? Diplomats and judges? Military commanders? The wretched brainwashed students of the “limited group of Anglo-American international lawyers”? Or, maybe, the limited group itself – people, who (if we believe that secret-scholarly-clique-governs-the-world view of legal history which Byers and Chesterman, themselves, of course, being scholars, seem to be so eager to cultivate) are in fact so powerful that they not only can apparently construct and reinforce at their discretion nothing less than a whole “conception of international law” but also lay to rest the legal regimes established by the UN Charter? Presuming a professional conspiracy of such Illuminati-style resourcefulness is in fact something more than just a convenient myth for the idle minds, how exactly is publishing a limited-release scholarly monograph about the meaning of customary law and the “importance of subsequent practice in the application of a treaty as an element of interpretation” (p.270) going to do anything to stop it? What exactly is it going to achieve on the battlefield of professional struggles?

Consider once again the sequence of what Laursen is actually saying. Somewhere in the Anglo-American world there exists now a sinister scholarly clique, led by the likes of Bolton and Glennon, that wants to destroy the existing regime of jus ad bellum. They are very powerful and have recently gone on the offensive. Whoever is concerned about the stability of the world public order must immediately stand up against them. Thankfully, the clique’s masters are not invulnerable. There is a way to defeat them. Let us go back to the classical doctrine of sources, juggle with the concept of international custom, and resuscitate, in the process, [*266] one of the most unmanageable theories of treaty interpretation. Its practical wisdom and aesthetic beauty will repel the all-powerful conspiracy. And the rule of law will triumph. And the stability of the world order will be guaranteed. And nobody who reads this book will recall that exactly the same scenario had been identified by David Kennedy twenty years earlier when he described what actually happens to the traditional international law doctrine in times of its disintegration: unable to provide an effective resolution in the field of substantive normative argument (law of war), it relocates the inquiry into the field of legal sources (custom), wherefrom, because of the latter’s own structural incoherence, it eventually moves to the field of process (treaty interpretation), which then sends everything back to sources, and thus ad infinitum (Kennedy, 1987: 272-3).

THE LEGAL THEORY BEHIND CILMNC’S ARGUMENT

As a work of international legal scholarship, CILMNC makes two very important methodological promises. First, it promises “to analyse how the rules of international law that govern the use of force have met the challenge that is posed by terrorist violence and state responses” (p.20). Second, it promises to articulate and defend against that backdrop the following thesis: far from beginning to fall and wither away over the last decade or so, the modern international “rules regulating the use of force have [actually] exhibited dynamism and adaptability in the face of changing threats” (p.300) – or, in other words, despite everything that happened since Kosovo and before, the international legal regimes established in the area of jus ad bellum are still very much alive, kicking, and practically relevant to the course of international politics. Neither of these promises, in the end, alas, is kept satisfactorily.

The reason for this failure, however, has nothing to do with Laursen’s diligence or lack of commitment. It is not that he does not want to deliver on his promises or that he does not manage to detail every single statement he could find that was made in the international arena and that could, however remotely, qualify as an act of custom-forming state practice. He certainly does all of that, and very conscientiously, although most of his sources display a very conspicuous North Atlantic bias.

The problem, rather, lies in the basic analytical apparatus he employs to produce his arguments. To use a slightly crude metaphor, the vehicle he drives was not made to cross the kind of terrain he entered. Its wheels do not turn there. It breaks down as soon as he enters the field and no amount of inspiration and commitment can change that.

Then again, all Laursen does on this front is simply follow the established conventions of the genre. The vehicle he chose is the preferred vehicle of choice for almost all European scholars writing about jus ad bellum today. Can one be faulted for being loyal to one’s team? Or is it professionally unacceptable to speak of legal scholarship in terms of teams? Does the academic debate, especially in international law, not influence the patterns of legal interpretation, and does [*267] the latter, especially in this area of international law, not “take place in a field of pain and death” (Cover, 1986: 1601)? And does this specter of pain and death not make it incumbent on every jus ad bellum scholar to be far more responsible and self-aware when they choose their theoretical apparatuses than they would have to be if international law was only a board game?

What is Laursen’s theoretical apparatus in CILMNC? The answer is not that difficult to find. Although he only openly acknowledges his debt to Bruno Simma and Andreas Paulus (p.21), Laursen is clearly a faithful follower of Ian Brownlie’s school of post-Hartian “objective positivism.” As things stand, however, his take on objective positivism offers a significantly cruder product than Brownlie’s own re-appropriation of Hart (Brownlie, 1995: 21-35). The reason for that lies partly in Brownlie’s better acquaintance with Hart’s theory (Hart, 1994) and partly in Laursen’s own inability, despite his constant use of the term, to work out the full logic underlying Hart’s theory of “secondary rules” (for Laursen all secondary rules are rules of recognition), including the actual reasoning behind Hart’s conclusion that international law, because of its decentralized nature, must lack an adequate system of such rules.

According to Laursen, the answer to the question – “how do we know what are the secondary rules of modern international law?” – must be ultimately sought in “the practice of international tribunals” (p.21). Rather surprisingly for a self-declared practitioner of the “traditional positivist approach,” this statement arrives unaccompanied by any explanation, however short, of how exactly such a state of affairs could be fitted with the general positivist theory of international law (which postulates the necessity not only of an explicitly decentralized and state-centric legal process but also of the principles of sovereign equality, lawmaking by consent, and the rejection of the idea of a world government). Nor, which is even more bewildering for a Hartian positivist, is it supplemented by any description of its empirical and sociological origins. Indeed, the only time the sociological dimension of legal theory ever gets mentioned in CILMNC is when Laursen sets out to reprimand Glennon for not being a good legal positivist (p.18), a scholarly affiliation, it must be pointed out, which Glennon has never actually claimed.

All of this raises a number of rather awkward questions, starting with: where exactly does this new tertiary rule – that some nebulous system of international tribunals, with all their institutional and cultural legitimacy problems, lack of staffing, informational asymmetries, gender misbalance, democratic unaccountability, not to mention the extremely obvious limitations of their mandates and discursive capacities, should be able to determine the system of international law’s secondary rules – come from? What is its basis in customary international law? How many of these tribunals’ members are actually aware that the jus ad bellum scholars consider this to be their responsibility? And what about the nation-state governments? Has anyone asked them what they “feel” about this idea? [*268]

CILMNC’s answer to the question of secondary rules, in short, is supplied in the form of an antinomian, aprioristic postulate – here it is, there’s no real reason for it, just take it or leave it – and the problem with such postulates, of course, is that, although they may work well in religion, they are not too well regarded in secular positivism. And so if positivism is the proposed solution to the question of legal knowledge, then the knowledge CILMNC provides of the customary law of jus ad bellum has to be compromised ab initio. If the rule of recognition cannot show its basis in the actual practice, how can anyone consider it reliable?

But the biggest problem of Laursen’s legal theory is not his “misuse” of the Hartian analytical framework. It is, rather, his construction of the basic international law concept of “state practice” and his understanding of just how “international” a normative consensus must be in order to give rise to the specific kind of opinio juris required to create a general custom.

To start with the former, virtually all the examples of the “new” state practice CILMNC cites are either the acts of Western powers, including Russia, or the statements of the various Western-dominated international organizations and their subsidiary bodies. The amount of attention given to the foreign policy patterns practiced by other states and regional groupings is infinitesimal. Indeed, to the extent to which they ever appear in the CILMNC pages, they mostly do so only as the backdrop to, or the theater-stage for, the realization of the Western foreign policy.

Discussing the logic of literary work, Pierre Macherey once observed that, ultimately, it is not so much what the book actually says, as what it tries to exclude from its plane of saying – what it deliberately, that is, tries to silence over – and how it does this that defines the meaning of that which it actually says (Macherey, 2006: 97). The most telling feature of Laursen’s performance on this front, despite his initial promise of “an approach that is more comprehensive than most other contributions” (p.20), is that in a 300-page volume one finds virtually no traces of any engagement, direct or indirect, with any of the recent works by Thomas Franck, David Kennedy, Frédéric Mégret, or, indeed, any other international legal scholars besides Glennon and Bolton, whose interpretations of the post-Kosovo state practice led them to an essentially negative conclusion about the continuing relevance of the Charter regime, but who arrived there with significantly less delight about their findings and self-righteousness about their method.

In a way, that doggedness with which Laursen sticks to the 1920s-style empiricist myth that somehow, if only one looked at it long enough, that mysterious entity called the “state practice” would inevitably begin to speak and will eventually tell what exactly the objective contents of customary international law are, is rather admirable. But in a way it is also quite perplexing. One would have thought, nearly two decades after Koskenniemi’s work on the structure of the international legal discourse (Koskenniemi, 1989), it should have become at least deeply [*269] unpopular, if not intellectually impossible, to make these kinds of arguments.

But, then again, it is not actually impossible to see why Laursen relies on this trope so much. For it does, in fact, perform a very helpful ideological part, by giving CILMNC a perfect instrument with which to repel any criticism of its conclusions. For, indeed, if state practice can speak for itself and CILMNC has covered all of it that there was to be found, and the rules of recognition have been authorized by the international tribunals, how can its conclusions ever be wrong?

But, of course, they can. Because, first of all, “historical situations do not have built into them intrinsic meanings” and how a given historical situation ends up being interpreted is ultimately a question of the historian’s ability and preferences in questions of “emplotment” (White, 1978: 84-7). And, secondly – and far more relevantly – because CILMNC does not, in fact, cover the whole field of the available state practice and even that bit of it which it does cover, it covers with a rather pronounced bias.

Consider, for instance, the fact that whenever a representative of a Western/European government is reported saying anything in CILMNC – even when the blandness of their sophistry (“terrorism is not the way to a negotiated settlement, it is an obstacle to it”) is so blunt, it could easily put half of all Dworkineans out of the best-fit-interpretation game forever – he or she is simply described as “making a statement” (pp.3, 134, 212), a “remark” (p.225), or some other such potentially custom-forming act. By contrast, when a ministerial summit of the members of the Non-Aligned Movement or the Organization of Islamic Conference issues an official declaration on the subject of international terrorism, it is described as “a statement [that] reveals little” (p.130).

When the acts of anti-Western terrorism are elevated to the level of an armed attack (previously the exclusive domain of state action), one is presented with an example of how the international community has learned to interpret the traditional categories of jus ad bellum dynamically (p.280). When the Third-World countries start to invoke the right of self-determination in their struggle against European colonialism, one is presented with an example of a regrettable abuse of an “elusive concept” (p.125).

When a Western law professor is quoted saying that, while “all terrorism is unlawful,” the 9/11 attacks have been more unlawful than any other terrorist attacks in modern history because they were aimed at nothing less than “destroying the social and economic structures and values of a system of world public order, along with [all of] international law that sustains it” (p.137), he is simply described as an academic making a “note.” When a Malaysian prime-minister is quoted discussing the inconsistencies in the use of the label “terrorism,” he is described as a person who otherwise “does not mince his words” (p.131). [*270]

THE ASSUMPTIONS AND BLIND SPOTS OF THE JUS AD BELLUM SCHOLARSHIP: CILMNC AS A TYPICAL MONUMENT OF A POLITICAL CULTURE

What exactly does it mean for a continental European international lawyer to call on his readers to oppose the attempts of the Anglo-American scholars to present a new conception of international law on the grounds that the project assumes that the legal regime established by the UN Charter has failed? Is it not true (and does the fact of a decades-long debate among the continental European international lawyers about the UN and its shortcomings itself not confirm this idea) that that regime has not actually been so great after all? That the ultimate reason why the UN failed to intervene in Bosnia and Rwanda has at least as much to do with the fundamental design flaws in its institutional structure as it does with that proverbial “human factor” to which the West and the international civil servants are content to ascribe every civilian massacre from Srebrenica to Sabra and Chatila? And that if it is actually so, then it probably makes all the sense in the world, given the scale of the humanitarian catastrophes involved, to consider that regime profoundly dysfunctional?

The aggressive Right definitely is on the rise in the field of the jus ad bellum discourse. That much is certain. What it wants to achieve, in one way or another, is to relegitimize the idea of Western colonialism. That much is certain too. But there is nothing inherently Rightist or even remotely rightwing about criticizing the existing status quo in the field of jus ad bellum discourse, especially when this discourse is built on such a widespread denial of the historical realities outside its plane.

If Laursen feels uncomfortable with recent developments in jus ad bellum scholarship in the US and Britain because he thinks they may help to legitimize the idea of Anglo-American imperialism, why not say this openly? He would not be alone if he did that. But then if he did, he would also be expected to articulate, however briefly, what exactly it is about Anglo-American imperialism that he finds so abhorrent, and that is where it seems the blind spots of the contemporary “continental-European” international law discourse have the better of him.

Is it the Anglo-American part of the new jus ad bellum imperialist project that disturbs Andreas Laursen more, or the imperialist part? If it is the latter, how exactly does he then propose to reconcile the idea of an anti-imperialist impulse with the idea of throwing all one’s ideological weight on the side of a legal regime established six decades ago on the self-evident understanding that vetoing rights at the Security Council should belong, inter alia, to two of the biggest European empires of the day?

The point I am trying to make here is not that Laursen’s project is somehow politically corrupt or methodologically misguided, but, rather, that the most important problem of the newly blossoming genre of scholarly writing to which CILMNC belongs is that it rests [*271] on a set of essentially unsupportable ideological assumptions.

Fine, let us imagine that Glennon and Co. really do want to wipe out the existing jus ad bellum regime and replace it with a new one. Let us also imagine that this new regime is going to be far more liberal about allowing aggression, and that because of this it is not going to be in line with the established traditions of international law. Let us, furthermore, imagine that, as a result of all this, the project of the international rule of law will suffer a very considerable setback. So what? What exactly is wrong with that?

Pause for a moment and think about this carefully.

What is so good about the existing variation on the international rule of law theme achieved in the field of jus ad bellum that anyone in their right mind should feel immediately upset when told of its destabilization? Or, rather, to look at it from a slightly more revealing angle, who do you think should necessarily feel upset in case such destabilization does happen? Who has the highest stakes in retaining the existing status quo? If you think the answer is, “humanity at large,” think again.

Whatever the established dogma of modern internationalism may say about this, there simply does not exist any necessary connection between juridifying the field of international politics surrounding the transboundary use of force, including the so-called global war on terror, and making that politics more ethically appealing, or, for that matter, more humanitarian or more accountable. One can easily spend a whole lifetime witnessing the rise of the former without ever observing any changes in the latter, and vice versa. Any claim that in this (or any other) area of international relations there must exist some kind of a hidden structural interdependency linking the process of juridification to ethically progressive development is completely spurious.

“More international law” simply does not mean “a more ethical global political climate.” Any statement declaring otherwise is not a reasoned argument, but a typical example of juristocratic bullying. More than that, it is also an example of a very biased political project, for when and if such bullying arguments succeed, as history shows, the practical results almost always turn out to benefit only a very narrow sector of the international law profession, namely that part of its current ideological elite which through a lucky confluence of historical opportunities has managed to come out on top of the power/knowledge conjunction by turning itself into the priestly caste of the new rule-of-law religion.

As Pierre Schlag has once pointed out (Schlag, 1998: 52-3), the ethical superiority of juridifying any given field of politics as a meta-political strategy can become a logically plausible proposition only if one has already decided that the whole political universe with which one is dealing on the given occasion is inherently susceptible to being recast in formal juridical terms – i.e. only if one has already decided that [*272] juridification can and must happen. If one does not make that assumption – if, in other words, one decides that the world of politics cannot be meaningfully reduced to a one-dimensional appropriation by the discourse of law and that juridification cannot prove its ethical value by simply taking it for granted – then any scholarly project which tries to present it as self-evident that “more juridification” necessarily means “more progress” simply begins to look spurious. Put plainly, unless one is ready to accept the rather embarrassing proposition that “the way of the law” must be good because the “law” itself has said so, “more law” simply cannot equal “better life” or “more humanitarianism” or “a more progressive ethical climate.”

Against such a background, it seems difficult to conclude that the rise of the new “continental-European” writing about jus ad bellum topics of which CILMNC is a representative illustration should be considered a cause for much celebration. Its apparent ideological target may be the most reactionary project of all, but its own ideological character can hardly, for all that, be called particularly progressive.

REFERENCES:
Brownlie, Ian. 1995. “International Law at the Fiftieth Anniversary of the United Nations” 255 RECUEIL DES COURS 9-228.

Cover, Robert M. 1986. “Violence and the Word.” 95 YALE LAW JOURNAL 1601-1629.

Hart, H. L. A. 1994. THE CONCEPT OF LAW (2nd ed). New York: Oxford University Press.

Kennedy, David. 1987. INTERNATIONAL LEGAL STRUCTURES. Baden Baden: Nomos Verlagsgesellschaft.

Koskenniemi, Martti. 1989. FROM APOLOGY TO UTOPIA. Cambridge: Cambridge University Press.

Macherey, Pierre. 2006. A THEORY OF LITERARY PRODUCTION. New York: Routledge.

Schlag, Pierre. 1998. THE ENCHANTMENT OF REASON. Durham: Duke University Press.

White, Hayden. 1978. THE TROPICS OF DISCOURSE. Baltimore: Johns Hopkins University Press.

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© Copyright 2007 by the author, Akbar Rasulov.

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GENERAL THEORY OF LAW AND STATE (Français)

by Hans Kelsen (avec une nouvelle introduction près A. Javier Teviño). New Brunswick, NJ: Transaction Publications, 2006. 556pp. Paper. $39.95/€32.59. ISBN: 1412804949.

Passé en revue près Pierre Brunet, Université de Paris X, Centre de Théorie du Droit. Email: pierre.brunet [at] u-paris10.fr.

pp.259-262

L’ouvrage GENERAL THEORY OF LAW AND STATE est aujourd’hui considéré comme un classique de l’œuvre de Kelsen (1881-1973). Écrit aux États-Unis (Berkeley) où Kelsen trouve refuge après qu’il a fuit Vienne et le nazisme, l’ouvrage (publié pour la première fois en 1945 chez Harvard UP) a pour vocation de faire connaître la théorie pure du droit aux juristes de Common Law. Il s’inscrit donc dans le droit fil de la pensée de Kelsen mais il contient certaines innovations qui annoncent la seconde édition de la PURE THEORY OF LAW que Kelsen publiera en 1960.

L’ouvrage est divisé en deux parties : le Droit (the Law) et l’État (the State). Cette division permet de comprendre que la GENERAL THEORY OF LAW AND STATE se situe à la charnière de la pensée de Kelsen. Il est certes encore question du droit (the Law) et de l’État (the State). Mais l’étude du Droit l’emporte sur celle de l’État. Kelsen quitte progressivement la théorie de l’État pour privilégier le Droit parce qu’il tire les conséquences de son affirmation majeure selon laquelle l’État « est » le Droit, i.e., le système juridique.

La première partie de l’ouvrage – the Law – reprend en effet une distinction que l’on trouve déjà dans la ALLGEMEINE STAATSLEHRE (1920), à savoir la distinction entre Nomostatics et Nomodynamics.

Cette distinction permet à Kelsen de distinguer deux états ou deux moments du droit : d’une part, le droit tel qu’il est créé et d’autre part, le processus de création du droit. La partie sur la Nomostatics lui donne l’occasion d’examiner les concepts juridiques fondamentaux tels que : Droit (« Law ») ; norme (« Norm ») ; sanction (« sanction ») ; délit (« delict ») ; obligation juridique (« legal duty »), responsabilité (« legal responsability ») ; le droit subjectif (« legal right ») ; competence (« competence ») ; imputation (« imputation ») et personne juridique (« legal person »).

La thèse défendue avec force par Kelsen dans cette Nomostatics est un rejet de la confusion entre droit et morale à laquelle conduit une analyse psychologique des concepts juridiques. Ce faisant, Kelsen rompt autant avec le jusnaturalisme qu’avec le positivisme d’un John Austin. La norme, affirme Kelsen, n’est pas un commandement de la « volonté » du législateur : « if the rule of law is a command, it is, so to speak, a de-psychologized command, a command which does not imply a ‘will’ in a psychological sense of the term » (p. 35). Parler de « volonté » est une métaphore parce que « by the norm, nothing is said about the actual behavior of the individual concerned (…) the ‘ought’ simply expresses the specific sense in which human behavior is determined by a norm ». Bref : « an impersonal and anonymous ‘command’ – that is a norm » (p. 36). Ce point est capital. Il permet de comprendre que la norme juridique n’est pas une description de ce qui « est » (ni une prédiction de ce qui « sera ») mais une prescription « objective » au regard du système juridique duquel elle tire sa validité (validity). Cette idée est très importante : une norme, affirme Kelsen, n’est ni vraie ni fausse, elle ne tire sa validité d’aucune correspondance avec le réel, « it is not a statement about reality an dis therefore incapable of being ‘true’ or ‘false’ » (p. 110). Une norme est seulement valide ou invalide.

Cette affirmation pose un problème épistémologique difficile : if the task of the science of law is, as Kelsen says, to represent the law of a community », la question est : comment décrire les normes sans les reproduire ? Ou encore, comment décrire des normes sans violer la séparation, que Kelsen entend au sens fort, entre « is » et « ought » ? Bref, comment décrire sans prescrire ? La solution avancée par Kelsen est parler de « legal rule » ou de « rule of law » « in a descriptive sense » (p. 45).

Cette proposition suscitera, par la suite, un grand nombre d’objections (notamment de la part des juristes réalistes tels que Alf Ross) auxquelles Kelsen répondra longuement dans la seconde édition de la Théorie pure du droit (PURE THEORY OF LAW, REINE RECHTSLEHERE) de 1960. Avec le recul du temps, il est frappant de constater que la GENERAL THEORY ne consacre que quelques pages à ce qui allait fournir une discussion épistémologique majeure chez les juristes positivistes de la seconde moitié du XXe siècle. Le fait est que cette proposition en faveur des « rule of law in a descriptive sense » est très peu satisfaisante car elle conduit Kelsen à une contradiction : d’une part, il soutient que la science du droit est une science en ce sens qu’elle est une description des faits, de l’autre, il affirme que les normes ne sont pas des faits mais des « ought » (« devoir-être ») mais que la science du droit peut décrire ces normes. Mais alors, la science ne décrit plus des faits.

La Nomodynamics concerne, comme je l’ai dit, le processus de création du droit. Kelsen affirme que ce système a de plus la particularité d’être dynamique : il règle sa propre création. En effet, pour Kelsen, les normes ne sont pas des prescriptions logiquement déduites d’autres prescriptions, comme pouvaient l’imaginer les juristes du XVIIe siècle qui rêvaient de systèmes axiomatiques, ce que Kelsen appelle un système statique. Les normes juridiques sont au contraire produites les unes par les autres : une norme est créée en application d’une autre norme, laquelle à son tour permet de créer une autre norme, etc. Dans la pensée de Kelsen, cette conception de la « hiérarchie des normes » ou « doctrine de la formation du droit par degrés » (Stufenbaulehre) n’est pas nouvelle. Kelsen reprend dans la GENERAL THEORY ses travaux antérieurs, fortement marqués par ceux de son collègue Adolf Merkl. En revanche, dans la GENERAL THEORY, Kelsen revient longuement sur la délicate et difficile question de l’unité de cette hiérarchie dynamique de normes.

Le problème est le suivant : on admet qu’une description est vraie si elle concorde (agrees with) avec la réalité sensible, or, une norme n’est ni vraie ni fausse mais seulement valide ou invalide ; la question est donc : à quelles conditions une norme est-elle valide ? Kelsen répond très simplement qu’une norme est valide « if it belongs to such a valid system of norms, if it can be derived from a basic norm constituting the order » (p. 111).

Ainsi, pour Kelsen, la validité n’est pas une qualité de la norme que lui confère son contenu mais une qualité du système juridique : une norme n’est juridique que parce qu’elle fait partie d’un système juridiques de normes. Cela permet de comprendre que la « hiérarchie des normes » n’est pas donnée une fois pour toutes : elle est construite par les organes habilités à produire des normes.

Bien évidemment, la difficulté majeure est de savoir ce qui donne une unité à ce système de normes. C’est pour résoudre cette question que Kelsen fait l’hypothèse de la « norme fondamentale » (grundnorm, basic norm). Les systèmes statiques sont des systèmes dans lesquels les normes sont déduites les unes des autres, leur sommet ne peut être occupé que par une norme que l’on tient pour « vraie ». Les systèmes dynamiques étant au contraire des systèmes dans lesquels les normes sont produites les unes par les autres, leur sommet est occupé par la Constitution. Mais à quelle conditions la Constitution est-elle valide ? Pour établir la validité de la Constitution Kelsen fait l’hypothèse d’une norme qu’il appelle « fondamentale » et dont le contenu serait « il faut obéir à la Constitution ». La fonction de cette basic norm, explique Kelsen, « is only the necessary presupposition of any positivistic interpretation of the legal material », elle est la réponse à la question : « how – and that means under what condition – are all these juristic statements concerning legal norms, legal duties, legal rights, and so on, possible? » (p. 117).

Toutefois, cette basic norm n’est pas une norme positive valide comme les autres normes le sont : « it is presupposed to be valid because without this presupposition no human act could be interpreted as a legal, especially as a norm-creating, act » (ibid.). Et Kelsen ajoute que l’introduction de cette hypothèse ne modifie pas sa science du droit : cette hypothèse « merely explicit what all jurists, mostly unconsciously, assume when they consider positive law as a system of valid norms and not only as a complex of facts, anda t the same time repudiate any natural law from which positive law would receive its validity » (p. 116).

La seconde partie sur l’État présente des analyses que Kelsen avait déjà fournies dans son grand ouvrage ALLGEMEINE STAATSLEHRE. On y trouve de nombreux développements qui demeurent très pertinents. La thèse à la fois originale et tout à fait caractéristique de Kelsen revient à affirmer l’identité du droit et de l’État.

Cette thèse le conduit à dissoudre certains dualismes traditionnels, dont entre autres, celui du droit naturel et du droit positif, celui du droit et de l’État ou encore celui du concept sociologique et du concept juridique d’État.

La cible de l’attaque qu’il mène contre ce dernier dualisme est évidemment Max Weber et derrière lui Georg Jellinek. Kelsen entend démontrer que « the sociological concept (…) presupposes the juristic concept ; not vice versa ». La raison de cette priorité du concept juridique sur le concept sociologique tient à ce que « the State as a legal community is not something apart from its legal order, any more the corporation is distinct from its constitutive order » ou encore « the community consists in nothing but the normative order regulating the mutual behavior of the individuals » (p. 182-183).

Bien sûr, la critique pouvait paraître sévère puisque Weber lui-même avait reconnu l’importance de l’analyse juridique. Mais Kelsen estime que Max Weber continue de penser l’État comme distinct du droit. Kelsen tirera d’ailleurs toutes les conséquences de cette idée dans sa théorie générale du droit et de l’État ou la théorie de l’État suit la théorie du droit alors que, dans son ALLGEMEINE STAATSLEHRE, tout ce qui relève de la théorie du droit (tant les concepts de droit objectif et subjectif, d’obligation, de personne juridique que la création de l’ordre juridique, qu’il appellera par la suite nomodynamique) est traité après la théorie de l’État.

Ainsi, avec Kelsen, la définition de l’État ne s’obtient qu’au travers d’une définition du droit. Cette définition est connue : le droit est un ordre juridique, un système de normes, mieux, un système de normes ayant pour l’essentiel un caractère dynamique : il organise sa propre production et ne dépend d’une réalité sociale extérieure à lui.

Élement essentiel de la pensée de Kelsen, la GENERAL THEORY est, encore aujourd’hui, un livre fondamental pour qui entend poursuivre l’entreprise de construction d’une science du droit au sens positiviste.

REFERENCES:
Kelsen, Hans. 1960. PURE THEORY OF LAW. Berkeley: University of California Press.

Kelsen, Hans. 1925. ALLGEMEINE STAATSLEHRE. Berlin: Julius Springer.

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© Copyright 2007 par l'auteur, Pierre Brunet.

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GENERAL THEORY OF LAW AND STATE

by Hans Kelsen (with a new introduction by A. Javier Teviño). New Brunswick, NJ: Transaction Publications, 2006. 556pp. Paper. $39.95/€32.59. ISBN: 1412804949.

Reviewed by Pierre Brunet, University of Paris X, Center for the Theory of Law. Email: pierre.brunet [at] u-paris10.fr. Translated by Charles E. Butterworth, Department of Government & Politics, University of Maryland.

pp.259-262

Nowadays, the GENERAL THEORY OF LAW AND STATE is considered as a classic among the writings of Hans Kelsen (1881-1973). Written in the United States – at U-California, Berkeley – where Kelsen found refuge after fleeing Vienna and Nazism, the work (published for the first time in 1945 at Harvard University Press) has as its goal acquainting lawyers of common law with the pure theory of law. Thus it falls within the direct line of Kelsen’s thought, but contains a few innovations that announce the second edition of the PURE THEORY OF LAW that Kelsen would publish in 1960.

The work is divided into two parts: Law and State. This division allows us to understand that the GENERAL THEORY OF LAW AND STATE serves as the hinge for Kelsen’s thought. While the question of law and state dominates, study of law prevails over study of the state. Kelsen gradually abandons the theory of the state in order to favor that of law, because that tack leads him to the conclusions of his major assertion that the state “is” the law, namely, the juridical system.

Thus, the first part of the work – law – revisits a distinction found in his earlier (1920) ALLGEMEINE STAATSLEHRE, namely, that between nomostatics and nomodynamics.

This distinction permits Kelsen to differentiate two conditions or instances of law: on the one hand, law as it is created; and on the other, the process of creating law. The part having to do with nomostatics gives him the chance to examine fundamental juristic concepts such as law, norm, sanction, delict or misdemeanor, legal duty, legal responsibility, legal right, competence, imputation, and legal person.

The thesis Kelsen strongly defends in this notion of nomostatics is his rejection of the attempt to confuse law and morality resulting from psychological analysis of juristic concepts. In doing so, Kelsen breaks as much with natural law doctrine as with John Austin’s positivism. The norm, asserts Kelsen, is not a command of the legislator’s will: “if the rule of law is a command, it is, so to speak, a de-psychologized command, a command which does not imply a ‘will’ in a psychological sense of the term” (p.35). To speak of “will” is to speak metaphorically, because “by the norm, nothing is said about the actual behavior of the individual concerned. . . . the ‘ought’ simply expresses the specific sense in which human behavior is determined by a norm.” In short, “an impersonal and anonymous ‘command’ – that is a norm” (p.36). This is an essential point. It allows us to understand that the juristic norm is not a [*260] description of what “is,” nor a prediction of what “will be,” but an “objective” prescription with respect to the juridical system from which it draws its validity. This idea is very important: a norm, asserts Kelsen, is neither true nor false; “it is not a statement about reality and is therefore incapable of being ‘true’ or ‘false’” (p.110). A norm can be only valid or invalid.

This assertion poses a difficult epistemological problem: if “the task of the science of law is,” as Kelsen contends, “to represent the law of a community,” the question becomes: how are norms to be described without reproducing them? Or, again, how are norms to be described without violating the separation between “is” and “ought” upon which Kelsen so adamantly insists? In short, how are we to describe without prescribing? The solution put forth by Kelsen is to speak of the “legal rule” or the “rule of law” “in a descriptive sense” (p.45).

This proposal called forth a large number of objections (most notably from realist legal scholars such as Alf Ross). Kelsen responded to them at length in the second edition of the PURE THEORY OF LAW (REINE RECHTSLEHRE) of 1960. Now, looking back, it is striking to note that the GENERAL THEORY devotes only a few pages to the argument that gave rise to a major epistemological discussion among the positivist legal scholars of the second half of the 20th century. The fact is that this argument in support of the “rule of law in a descriptive sense” is hardly satisfactory. Indeed, it leads Kelsen to a contradiction: on the one hand, he maintains that the science of law is a science in the sense that it is a description of facts; on the other, he asserts that norms are not facts, but “oughts” and that the science of law can describe these norms. At that point, however, science is no longer describing facts.

As I have said, nomodynamics has to do with the process of creating law. Kelsen asserts that this system has, in addition, the particularity of being dynamic; it regulates its own creation. In effect, for Kelsen, norms are not prescriptions logically deduced from other prescriptions, whatever the jurists of the 17th century who dreamed of axiomatic systems – something Kelsen calls a static system – might have thought. On the contrary, juridical norms are produced by one another; one norm [*262] is created by being applied to another norm, which in turn permits another norm to be created, and so on. In Kelsen’s thought, this concept of “hierarchy of norm” or “doctrine of law being formed by layers” (Stufenbaulehre) is not new. In the GENERAL THEORY, Kelsen returns to his earlier works that were strongly influenced by those of his colleague Adolf Merkl. Nonetheless, in the GENERAL THEORY, Kelsen dwells at length on the delicate and difficult question about the unity of this dynamic hierarchy of norms.

The problem is the following: we admit that a description is true if it agrees with sense-perceptible reality. However, a norm is neither true nor false, but only valid or invalid. Thus the question is: under what conditions is a norm valid? Kelsen responds very simply that a norm is valid “if it belongs to such a valid system of norms, if it can be derived from a basic norm constituting the order” (p.111).

Thus, for Kelsen, validity is not a quality of the norm that gives it its content, but a quality of the juridical system: a norm is juridical only because it is a part of a juridical system of norms. That allows us to understand that the “hierarchy of norms” is not given once for all time: it is constructed by organs so constituted as to produce norms.

Clearly, the major difficulty is knowing what gives unity to this system of norms. To resolve this question, Kelsen puts forth the hypothesis of the “basic norm” (Grundnorm). Static systems are the systems in which norms are deduced from one another, and their summit can be occupied only by one norm that is taken to be “true.” Dynamic systems, being, on the contrary, systems in which norms are produced by one another, their summit is occupied by the Constitution. But what are the conditions for the Constitution being valid? To establish the validity of the Constitution, Kelsen puts forth the hypothesis of a norm he calls “fundamental” and whose content is: “it is necessary to obey the Constitution.” The function of this basic norm, explains Kelsen, “is only the necessary presupposition of any positivistic interpretation of the legal material;” it is the reply to the question “how – and that means under what condition – are all these juristic statements concerning legal norms, legal duties, legal rights, and so on, possible” (p.117)?

All the same, this basic norm is not a valid positive norm as are the other norms: “it is presupposed to be valid because without this presupposition no human act could be interpreted as a legal, especially as a norm-creating, act” (p.117). And Kelsen adds that the introduction of this hypothesis does not modify his science of law: this hypothesis “merely makes explicit what all jurists, mostly unconsciously, assume when they consider positive law as a system of valid norms and not only as a complex set of facts, and at the same time repudiate any natural law from which positive law would receive its validity” (p.116).

The second part on the state presents analyses that Kelsen had already set forth in his large work, ALLGEMEINE STAATSLEHRE. In it, we find him developing numerous concepts that remain very pertinent. Among them is the thesis that is both original and completely characteristic of Kelsen, namely, his insistence on there being identity between law and the state.

This thesis leads him to dissolve certain traditional dualisms, such as, among others, that between natural law and positive law, that between law and the state, or even that between the sociological and the juristic [*262] concept of the state.

The target of the attack that he launches against this last dualism is clearly Max Weber, and, behind him, Georg Jellinek. Kelsen is intent upon demonstrating that “the sociological concept . . . presupposes the juristic concept; not vice versa.” The reason for the juristic concept having priority over the sociological concept comes from the notion that “the State as a legal community is not something apart from its legal order, any more than the corporation is distinct from its constitutive order,” or again “the community consists in nothing but the normative order regulating the mutual behavior of the individuals” (pp.182-183).

To be sure, the criticism may have appeared unduly severe, since Weber had himself already acknowledged the importance of juristic analysis. But Kelsen judges that Weber continued to think of the state as being distinct from law. Moreover, Kelsen goes on to draw out all the consequences of this idea in his general theory of law and the state such that the theory of the state follows the theory of law, whereas in his ALLGEMEINE STAATSLEHRE, everything that has to do with the theory of law (as much the concepts of objective and subjective law, obligation, and juridical person as the creation of the juridical order that he will later name nomodynamics) is treated after the theory of the state.

Thus, with Kelsen, the definition of the state is obtained only by means of a definition of law. This definition is known: law is a juridical order, a system of norms, better yet, a system of norms having a dynamic character as their essential trait: it organizes its own production and depends on no social reality external to itself.

An essential part of Kelsen’s thought, even today the GENERAL THEORY remains a fundamental book for anyone intent upon pursuing the enterprise of constructing a science of law with a positivist bent.

REFERENCES:
Kelsen, Hans. 1960. PURE THEORY OF LAW. Berkeley: University of California Press.

Kelsen, Hans. 1925. ALLGEMEINE STAATSLEHRE. Berlin: Julius Springer.

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© Copyright 2007 by the author, Pierre Brunet.

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TROUBLED EXPERIMENT: CRIME AND JUSTICE IN PENNSYLVANIA, 1682-1800

by Jack D. Marietta and G.S. Rowe. University of Pennsylvania Press, 2006. 368pp. Hardcover. $59.95/£39.00. ISBN: 9780812239553.

Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University. Email: matwell [at] radford.edu.

pp.255-258

Jack Marietta and G.S. Rowe make the argument that Pennsylvania, during the colonial and early national periods, failed as an experiment in Enlightenment inspired community. Despite the hopes of William Penn and his fellow Quakers that the colony would be characterized by brotherly love, respect, ample resources, tolerance, and most of all, civil peace, Pennsylvania saw more than its share of violence and crime. Is this explained by a flaw in the original vision, or is it explained by social, economic, and demographic changes unforeseen by the colony’s founders?

Penn and his generation set out to establish a place where good laws would enable people to be good, where exceptional freedom from royal and clerical control could allow the best human qualities to flourish. Up until the 1720s, Pennsylvania had an unusually humane criminal justice “system,” a progressive judiciary, a penal code that seldom prescribed capital punishment, and a focus on the rehabilitation of offenders. As long as the colony comprised a homogeneous population dominated by Quakers, Pennsylvanians experienced little crime and violence. Marietta and Rowe note that unlike the Chesapeake region, Pennsylvania had no staple crop that attracted numbers of young, single, risk-taking men eager to make their fortunes—the sort of people who tended to contribute to disorder. Nor did slavery with its accompanying violence really take hold. During the first decades, Pennsylvania remained peaceful until its professed openness and tolerance were tested by waves of immigrants, many of them Scots-Irish and German, in the years between 1717 and 1730.

Culturally, the Scots-Irish could hardly be more different from the Quakers. They were people with a history of violence at both the political and personal level, placing a high value on manly “honor” and little trust in government to settle disputes. The homicide rate in Pennsylvania increased dramatically after 1717, not because the old pacifist settlers changed their behavior but because a new element entered the population in significant numbers. In 1718 the criminal code was modified in response to this apparent “crime wave.” Reversing the Quaker approach, more crimes were made eligible for the death penalty, and capital sentences and executions became more frequent. The authors comment that this Pennsylvania response, addressing an increase in crime with harsher punishments, was typical both in the eighteenth century and in the contemporary period. “They did not explain the reasons for their confidence in severity. But despite their silence, they believed in deterrence and retributive justice” (p.80). However, [*256] there is no way of knowing that the lawmakers – still strongly influenced by their Quaker heritage – had suddenly completely reversed their beliefs to accept the idea of retribution instead of rehabilitation. They may have been hopeful about deterrence without embracing retribution.

Along with harsher laws against violent and property crimes came reduced enforcement of laws governing personal morals. With more diversity in the population there was less consensus about private behavior and less attention to monitoring it. An exception involved increased prosecutions for fornication and bastardy after the 1720s. Although a pregnant unwed woman would have drawn initial public attention to the case, the major motive for prosecution seems to have been to force fathers to pay child support and to relieve the community from the burden of dependent women and children. But unwed mothers were prosecuted as well, presumably so their shame would serve as a deterrent to others similarly tempted.

Examining the records of those charged with crimes in the eighteenth century, the authors find that the vast majority of the accused did not appear on the tax roles. In other words they did not own property – young, transients or indentured servants, bachelors – the sort of men who had few stabilizing ties to the communities. In fact, they were the sort of men who in every age disproportionately come to the attention of the criminal justice system. In VIOLENT LAND, Courtright argues that throughout American history one can find such a “bachelor subculture” associated with high levels of violence. The changes to Pennsylvania brought about by immigration, economic change, and urbanization in the Philadelphia area contributed to the growth of this population. And, in Marietta and Rowe’s view, the “liberal” legal system was unable to control them.

Although young, single, unattached men may have been the major offenders and the most frequent victims of violent crime, the authors devote significant space to women as victims and offenders. There are no surprises in their discussion of rape and domestic violence – crimes where women were the likely victims and in which the legal system had little interest and offered few remedies. Children too were victims of violence in their homes but courts tended to “sustain” traditional families by closing their eyes to what went on within households. One could argue then that during the nineteenth century, the story of crime and punishment related in TROUBLED EXPERIMENT parallels that in virtually every other colony in British North America. The main difference is that the hopes of the enlightened founders of Pennsylvania were higher before being snuffed out under the weight of problems that accompanied a larger, more diverse population.

The Revolutionary War meant new challenges in the area of crime and punishment and some further deviation from the original ideals of Pennsylvania. With divisions between Patriots and Loyalists, politics became more contentious and for many, their previously legal behavior was [*257] criminalized. From 1776-1777 no courts functioned in Pennsylvania. When they reopened, all Quaker jurists were removed because they refused to take an oath of loyalty. Although there were violations of personal rights under the guise of wartime necessity, the refusal of principled judges to suspend habeas corpus helped to preserve that fundamental protection. Marietta and Rowe claim that the Revolution affected the treatment of women by the justice system, making them more likely to be prosecuted for crimes. At the same time their formal legal status remained one of subordination. Equal prosecution, then as later, served as both a pretense and a poor substitute for full citizenship. For Native Americans, the Revolution meant the definite end of any mutually good relationships established with earlier generations of Pennsylvanians. Civilians and military in the western part of the state decided that all Indians were hostile and sympathetic to the British, no matter what their history of peaceful coexistence. Racism, coupled with greed, rationalized by the exigencies of war meant that Native Americans could be massacred with impunity.

In the early national period, Pennsylvanians attempted to write new laws and to structure a system that would reflect ideals of human dignity, again limiting the use of capital punishment and focusing on rehabilitation. Yet violence and public disorder persisted. One could argue that those problems had their roots in the growing economic gaps between the rich and the poor, between rural and urban, and between debtors and creditors. Marietta and Rowe find that the very ideals of liberalism – individualism, freedom, acquisitiveness – deserve both the credit for Pennsylvania’s humaneness and the blame for crime and violence. They say that “the intersection of liberalism with abundant crime was more than coincidence. Liberalism supported and stimulated crime” ( p.264).

It is the liberal emphasis on individualism and free market economics that Marietta and Rowe ultimately blame for the persistence of crime and disorder in Pennsylvania. Freeing citizens to pursue happiness also freed them to pursue deviant behavior. The authors are historians but they implicitly incorporate criminological theory throughout their book. At times one might see an explanation for Pennsylvania’s criminal problems in social disorganization, at other times, they seem to bemoan the lack of social bonds. Treating the theoretical issues more explicitly would offer some provocative possibilities.

One may applaud the thoroughness of this study and the value of its arguments while wishing that Marietta and Rowe had made a few different editing choices. Perhaps the two authors divided the writing with one responsible for the historical chronicle and the other for the numbers. In any case, too often the narrative is interrupted by tedious examinations of statistical data in most cases based on a single county and not subjected to any statistical tests. Even if social scientists take historians more seriously when they include an appropriate number of charts and tables in the text, it is possible to use numerical [*258] data judiciously to strengthen arguments without killing the pace of the narrative. Much of this information might have been more effectively included in appendices.

REFERENCE:
Courtwright, David T. 1996. VIOLENT LAND: SINGLE MEN AND SOCIAL DISORDER FROM THE FRONTIER TO THE INNER CITY. Cambridge, MA: Harvard University Press.

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© Copyright 2007 by the author, Mary W. Atwell.

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SAME SEX, DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES

by Andrew Koppelman. New Haven: Yale University Press, 2006. 224pp. Cloth. $35.00. ISBN: 0300113404.

Reviewed by Susan Burgess, Department of Political Science, Ohio University. Email: burgess [at] ohio.edu.

pp.250-254

Don’t be fooled by the title. This clever little book is about much more than crossing state lines. Andrew Koppelman, professor of law at Northwestern University, seeks nothing less than to use the law to enable people with radically different moral views about same-sex marriage to live together peaceably. In order to do so, he recommends de-escalating the debate by shifting away from constitutional discussion to the more mundane and less controversial choice of law doctrine.

The ten short chapters of this book cover a wide range of topics, including a history of the same-sex marriage controversy, the legal rules governing marriage recognition, an argument against blanket non-recognition and recognition of same-sex marriages, a critique of the federal Defense of Marriage Act (DOMA), and a discussion of state “mini-DOMAs.” Nearly every chapter starts by contextualizing the conflict with a compelling story of real people with specific legal problems pertaining to marriage recognition occasioned by issues of inheritance, divorce, custody, travel, medical decision-making, and so on. In addition, the book is relatively short and highly readable. It would make a great supplemental book for any undergraduate and graduate course that devotes attention to the law and politics of same-sex marriage. I plan to use it in my Legal Theory and Social Problems course this Spring.

Initially Koppelman asks quite a lot from his readers. He wants them not only to put aside their firmly held moral beliefs about same-sex marriage (no small matter), but also to recognize anti-miscegenation cases as exemplary precedent. Presumably, most people are no longer willing to embrace cases grounded in white supremacy and manipulation of the law as model forms of interpretation. Koppelman recognizes this: “As these miscegenation cases arose out of a despicable regime, it can seem odd, at best, to invoke them as authority for anything in contemporary law. The very idea of legality was caricatured when judges reasoned out the consequences of that regime in this bland, workmanlike way” (p.49). Despite this, he insists that these cases are on point because “southern judges did have something intelligent to say about how to deal with deep moral disagreement” and about managing “at least the minimal level of decency and mutual respect that existed in the awful years of legalized racism”(p.49). He argues that choice of law doctrine compelled judges to practice neither blanket recognition nor blanket non-recognition of interracial marriages, even in the highly conflicted context of the Jim Crow South. This middle ground is th