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 the precisely the course that [*251] Koppelman will recommend for keeping the peace during the contemporary conflict over same-sex marriage.

Koppelman uses choice of law doctrine to distinguish the instances in which interracial marriages were recognized, and those where it was not. He breaks the cases down into four areas: evasion, visitation, extraterritorial and migration. Evasion cases are those in which couples leave their home state to marry in order to evade the state’s prohibition of their marriage, and then return home immediately. According to Koppelman, evasion cases are weakest for recognition because “states have the right to govern their own residents” (p.102). As a consequence, “Southern Courts always invalidated these marriages” (p.37).

On the other hand, Koppelman argues, extraterritorial marriages should always be recognized. These cases address marriages in which the couple has never lived in the state with a prohibition, but the status of the relationship comes into question due to litigation undertaken there, as for example when one of the partners dies and the other seeks to inherit the property her spouse owned in a prohibitory state. In this area, Koppelman argues, “the case law is unanimous” and these marriages were “routinely upheld” in the miscegenation cases (p.112).

Although the miscegenation era cases do not address the situation of visitors, Koppelman argues that these marriages also should always be recognized regardless of the public policy of the state. He argues that the case law is silent in this regard probably because couples in this situation likely would have been lynched rather than tried for miscegenation, “and the local police would have ignored or participated in the violence” (p.49). Since such a situation does not hold regarding same-sex marriage, Koppelman argues, federalism and the right to travel requires recognition across state lines.

Migration cases are the hard ones. These cases cover couples who never intended to evade the law when they married. Such couples marry legally in one state, and then some time later move to a state that prohibits same-sex marriage. While the latter states are never compelled to recognize such marriages outright, Koppelman’s review of the law leads him to conclude that such states should recognize “any right or obligation of marriage that can be recharacterized as a nonmarital right – such as a right to contract, or a parent-child relation, or an obligation created by a judicial judgment” (p.110). On this reading, “[i]f a right is one that the parties could have achieved via private contract under the forum’s law, then the forum cannot coherently be said to have a public policy against them enjoying that incident” (p.108).

In Koppelman’s view, DOMA and the Full Faith and Credit Clause are largely irrelevant to the issue of same-sex marriage. “States have always had the power to decline to recognize marriages from other states, and they have been exercising that power for centuries” (p.117). Just as being allowed to carry a concealed handgun in one state does not mean that one has a right to carry it in [*252] any state in the country, one may marry in one state and not carry those same rights to another: “[T]here is not a single judicial decision that holds that full faith and credit requires states to recognize marriages that violate their own public policies concerning who may marry” (p.118). Ironically, DOMA’s irrelevance also suggests that it is unconstitutional, because it assigns same-sex marriage “a legal pariah status that has never before existed in American history,” making DOMA unconstitutional” (p.135).

For Koppelman, the mini-DOMAs passed by various states are where the most interesting legal action promises to take place in the years to come. He divides these into three categories: those that were passed in the 1970s in response to same-sex couples who were beginning to apply for marriage licenses because nothing in the law of their states explicitly prevented them from doing so; those passed in the 1990s due to a fear that evasive marriages might follow if Hawaii began to recognize same-sex marriage; and those passed in the early 2000s due to a fear that other state supreme courts would follow the lead of Vermont and Massachusetts and compel recognition of same-sex civil unions or marriages.

Koppelman argues that the “most charitable interpretation of [the mini-DOMAs] is that they are defensive and seek only to prevent those states from having to recognize continuing same sex marriages within their borders” (p.150). Read this way, they appear to defend against evasive same-sex marriages. If such laws can be understood as a kind of self-defense, Koppelman argues, then the defense should be proportionate to that end, rather than hysterical and overblown: “What states may not do is what too many of them have done: flail wildly at the problem, like a man in a crowded room single-mindedly trying to kill a mosquito with a baseball bat” (p.148).

Baseball bat states include Virginia, Montana, and Michigan, which seem not only to ban same-sex marriage but also to bar same-sex couples from contracting with each other for any rights that approximate any incidents of marriage. Following ROMER v. EVANS and LAWRENCE v. TEXAS, Koppelman argues that singling out gay and lesbian couples for such adverse treatment is unconstitutional. Others states such as Florida, Georgia, Ohio, Texas, and West Virginia, do not recognize “judicial proceedings arising from same-sex marriage.” These statutes are also unconstitutional according to Koppelman, as they do not provide a minimum guarantee of full faith and credit. In a lighter moment, Koppelman suggests that Texas appears to abolish marriage itself, in declaring that states and its subdivisions “may not create or recognize any legal status identical or similar to marriage” (pp.147-148).

According to Koppelman, the choice of law approach is more desirable because it yields something for everyone: “For people who oppose same-sex marriage, it offers security against the wholesale importation of institutions they find morally repugnant” (p.xviii). In exchange, opponents of same-sex [*253] marriage should recognize gay couples’ “administrative interests,” in order to show that their position is not based on mere prejudice. Not only would such bigotry be unconstitutional under ROMER and LAWRENCE, it would also be politically unstrategic. In any case, Koppelman asserts that “[f]ew conservatives want to use the law to stamp out same-sex relationships as if they were the moral equivalent of slavery. They just don’t want such relationships to be given the special treatment that is given to heterosexual marriages” (p.80). What’s in it for gays and lesbians? Koppelman argues that his approach “offers relief from being national scapegoats. It is not in the interest of gays to make opponents of same-sex marriage feel that they must act aggressively in order to protect their local conceptions of marriage. At the end of that road is an amendment to the U.S. Constitution banning same-sex marriage” (p.xviii).

Given the fervor and influence of those on the religious right, it might be a stretch to suggest that only a few conservatives would resist recognizing same-sex relationships in forms other than marriage. Further, the choice of law approach did not seem to offer blacks much relief from being scapegoated, so there is reason to wonder whether such an approach would do so for gays and lesbians. The civil rights movement’s response to the Jim Crow South was to make the bigotry behind unequal treatment clear, not to legitimate it through law. In this manner, the movement hoped to persuade people of good will to resist such bigotry and to call for its excision from the law.

However, Koppelman seems to be betting that the grounds of the same-sex marriage debate have already shifted and are likely to change more significantly in the not too distant future. He seems to be asking same-sex marriage supporters to be patient and to take a bit of a political gamble. And he seems to be asking opponents of same-sex marriage to let go of any lingering prejudice in exchange for which he offers time, perhaps to adjust to a new political reality. Thus, he assures such opponents that “[s]ame sex marriage is not likely to spread very widely in the United States in the near future. Public opinion is too strongly against it” (p.152). But he also cites polls that indicate a shift towards greater acceptance of same-sex marriage over time, noting that the shift appears to be generationally based and concludes that “[t]he long-term hopes of the same-sex marriage movement are its best reason not to overreach and to accept more modest victories” (p.153).

Koppelman concedes that what he offers is not a permanent solution, but he does insist that it will allow us to live together peaceably in the meantime. Invoking the rhetoric of the civil rights movement, he argues: “Mundane legal answers will not bring us to the promised land, but they may make our present abode more habitable” (p.xviii). In the meantime, “each side should intensely compete to show that it is more reasonable than the other. At a minimum, we should not respond to our disagreements in a less civilized and humane way than we [*254] managed to do in the shameful days of racial segregation” (p.153).

By invoking the miscegenation cases, this clever book implies that gays and lesbians currently live in a Jim Crow-like context. In that context, law occasionally offered some relief, but violence always lingered as a threat in the background. Thus, Koppelman seems to put opponents of same-sex marriage in the uncomfortable situation of having to identify with cases that are clearly grounded in bigotry. However, he also seems to put gays and lesbians in the uncomfortable position similar to that of blacks in the Jim Crow South, who for too long had to wonder how long, how long? He may be right to say that this is simply the situation in which all of us currently find ourselves. He may also be right to say that choice of law doctrine may help us to adjudicate it for the moment. The question that arises is how does a blatant case of evasion such as LOVING v. VIRGINIA come to be seen as a bold stroke in favor of equal justice? Is an evasive same-sex marriage case likely to be transformed along those lines? While both sides await the answers to these questions, Koppelman provides a compelling story about how we may all bide our time together in relatively peaceful conflict.

CASE REFERENCES:
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

LOVING v. VIRGINIA, 388 US 1 (1967).

ROMER v. EVANS, 517 U.S. 620 (1996).

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© Copyright 2007 by the author, Susan Burgess.

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INTERNATIONAL MIGRATION AND GLOBAL JUSTICE

by Satvinder Singh Juss. Hampshire, England: Ashgate Publishing Ltd., 2006. 350pp. Hardcover. $99.95/£55.00. ISBN: 0754646718.

Reviewed by John S.W. Park, Department of Asian American Studies, University of California at Santa Barbara. Email: jswpark [at] asamst.ucsb.edu.

pp.246-249

In the first part of this book, Satvinder Juss tries to show how national restrictions against immigration are deviations from traditional liberal norms, and for most of this volume, Juss argues that fundamentally, these restrictions are also unjust mechanisms through which wealthier nations keep out the poor and displaced beyond their boundaries. Juss tackles a problem that seems to have no political or legal solution, as practically every nation-state now deals with “unwanted” immigrants. Juss focuses on immigration in Europe and Great Britain, but his arguments are addressed to policy-makers and scholars in all liberal nation-states. His work offers moral and legal rationales for a more open system of immigration. Ultimately, though, his reading of liberal norms and his understanding of contemporary immigration rules are less than persuasive.

First, to support his argument that immigration restrictions are aberrations to a system of open migration, Juss cites theorists like Emmerich de Vattel, Hugo Grotius, and Samuel Pufendorf, and he also relies heavily on James Nafziger’s more recent essay on the admission of aliens under international law. Juss concedes that influential theorists like Vattel are problematic. In one of the more infamous Chinese Exclusion Cases, for example, Justice Gray of the United States Supreme Court cited this passage from Vattel’s LAW OF NATIONS (1758): “Every nation has the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury. What it owes to itself, the care of its own safety, gives it this right; and in virtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner” (Fong Yue Ting v. US, at 707). Yet Juss insists that “the classical publicists provide no basis for the proposition that a sovereign has an unfettered right to exclude all aliens” (p.14). In particular, Vattel himself mentioned the need for states to offer asylum, as well as the duty of nations to offer “just assistance.”

Vattel is instructive, because his work is an example of how classical, modern, and contemporary liberal theorists have always been confused and contradictory when it comes to international migrations. Liberal theorists might be deeply committed to principles of human equality, as they are manifest in liberal constitutions or in the Universal Declaration of Human Rights, but they have also embraced principles of sovereignty that have justified restrictions against immigration, as well as other forms of discrimination based on ascriptive status. John Locke said in the SECOND TREATISE that one of the [*247] primary functions of a liberal, consent-based commonwealth was to “prevent or redress foreign injuries, and secure the community from inroads and invasion” (Macpherson 1980, §131). (Justice Gray and a majority of his Court argued that Chinese immigration amounted to an “invasion.”) Locke suggested that a liberal commonwealth could deal with everyone outside its boundaries as though they were still in a state of nature. In his other works, Locke was more blunt: foreigners should “depend only on what they bring with them, either their estates or industry, both which are equally profitable to the kingdom” (Goldie 1997, at 324). Those who were “unprofitable” could not claim a right to admission.

Similarly, among contemporary liberal theorists, there is hardly a consensus for open migration. In one of his last works, for example, John Rawls wrote that “people must recognize that they cannot make up for failing to regulate their numbers or to care for their land by conquest in war, or by migrating into another people’s territory without their consent” (Rawls 2001, at 8). These are just two examples of how many influential theorists have defended the right of liberal commonwealths to exclude persons they do not want, irrespective of broader commitments to human equality. Juss does not address these types of arguments, nor does he give reasons for why these arguments are so inconsistent with liberal norms.

In terms of how immigration rules function to exclude poorer immigrants from wealthy countries, Juss spends just one chapter arguing for a more realistic set of rules based on concerns about utility and fairness. “My argument here is that the developed world needs to recognize that there is a market for immigration. Provided it recognizes that fact, it may then move to regulate that market in a way that promotes its own interests, cultivates an intercourse with the less developed world, and is cost effective” (p.67). He notes that skilled workers have moved often from developing countries to developed nations since the postwar era, and that this movement has been critical for several industries in affluent countries.

However, Juss does not discuss at length the particular problems associated with large-scale, unskilled immigration from the developing world into advanced industrial nations. He does not engage, for instance, scholars who have long insisted that these unskilled migrations have had a detrimental effect on the economic fortunes of the least well-off in countries like the United States. Nor does he discuss political debates where politicians and scholars have insisted that the immigration of the poor should be decreased and otherwise heavily controlled, because poorer migrants stress the social welfare and criminal justice systems of advanced industrial nations. Many countries now deport more persons for a larger number of reasons precisely to reduce these costs. Juss might not agree with economists like George Borjas, but Juss’ work would have been more persuasive and well-rounded had he addressed these types of concerns, if either to refute them with his own evidence, or to understand better the political forces that have led to greater restrictions specifically directed [*248] at unskilled workers throughout Europe, Asia, and North America (See e.g., Borjas 1991; 2001).

Instead, Juss focuses most of his concern about poorer immigrants by looking at refugee law and policy. Indeed, about half of his book is concerned with expanding the definition of refugees, and then arguing that more refugees should be admitted into wealthier countries. Many of his observations are uncontroversial: “displaced persons” now lose their homes because of natural disasters, industrial accidents, political instability, and war; the current definition of a “refugee” captures a very small fraction of this displaced population; even “where they are admitted [as refugees], they are expected to return as soon as the situation at home improves” (p.156); and “events in the current decade confirm that the rich countries of the North are not going to accept a proportionately fair share of the world’s refugees today” (p.231). Juss rightly points out that the “the rights of refugees today are embattled and are therefore uncertain and shrinking” (p.219). In short, the need for sanctuary is gigantic, and yet the political will to meet that need through refugee admissions has dwindled.

This has occurred even though wealthier nations, through their military adventures and political and economic policies, have caused much of the displacement throughout the world. Again, Juss makes claims that appear uncontroversial for anyone paying attention to current affairs: “Western intervention through military action is surely responsible to some degree for the ungovernable state of countries like Iraq and Afghanistan. . . The rise in refugees from these countries is something for which the West must bear some responsibility” (p.229). And, Juss points toward this solution: “What is needed . . . is an approach to refugee law that makes connections between refugee law and general immigration rights, and integrates immigration law and refugee law into human rights laws, in the context of more general rights to free movement” (p.239). Later, Juss writes: “If the richer countries really wanted to alleviate hardship, to increase prosperity, and to bring real benefits of globalization to bear on the poorer world, there is no better way to do that than to lift the barriers to control in the developed world. Globalizing the free movement of people across the world would enable vastly more people in the under-developed world to improve themselves and their people” (p.296).

That is the heart of Juss’ argument. “Whether or not borders should be thrown open, in my view the case for an open system of immigration controls is unassailable simply because the concept of closed societies is repugnant to the very idea of international mutuality, communality and solidarity” (p.3). And, “[if] people want to sign the social contract and become full contributing members of a society, they should, where ever possible, be permitted to do so, because this is compatible with the idea of equal moral worth of all individuals” (p.57). In sentences like these, Juss provides articulate statements for persons who agree with him, including me; however, what he does not do is confront counter-arguments to [*249] these positions, counter-arguments that explain better why liberal nation states have not moved in the directions that he or I would like. He tends to be dismissive of these other points of view, saying that they are inconsistent with liberal norms or economically irrational or perhaps just plain racist. They might in fact be all these things, and yet by not taking these positions more seriously, Juss misses many opportunities to show why citizens in liberal states have often been so hostile to persons who are culturally different, poor, or both. In tone and substance, his book reads like a lengthy law review article advocating a particular point of view, and not a balanced account of a complex set of social, political, and legal problems. In other words, his book is not likely to persuade anyone who does not already agree with him.

REFERENCES:
Borjas, George J. 2001. HEAVEN’S DOOR: IMMIGRATION POLICY AND THE AMERICAN ECONOMY. Princeton: Princeton University Press.

Borjas, George J. 1991. FRIENDS OR STRANGERS: THE IMPACT OF IMMIGRANTS ON THE AMERICAN ECONOMY. New York: Basic Books.

Goldie, Mark (ed). 1997. “For a General Naturalization,” in JOHN LOCKE, POLITICAL ESSAYS. Cambridge: Cambridge University Press.

Macpherson, C.B. (ed). 1980. JOHN LOCKE, SECOND TREATISE. Indianapolis: Hackett Publishing Company


Nafziger, James A. R. 1983. “The General Admission of Aliens under International Law.” 77 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 804-847.

Rawls, John. 2001. THE LAW OF PEOPLES. Cambridge: Harvard University Press.

CASE REFERENCES:
FONG YUE TING v. US, 149 U.S. 698 (1893).

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© Copyright 2007 by the author, John S.W. Park.

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PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA

by Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds). Aldershot, UK: Ashgate, 2006. 358pp. Hardback: $124.95/£65.00. ISBN: 0754625583.

Reviewed by David Erdos, ESRC Postdoctoral Fellow, Department of Politics, University of York. Email: de508 [at] york.ac.uk.

pp.243-245

Although there are clear signs that moves to adopt some form of national Bill of Rights are gathering increasing momentum (see e.g. Grattan, 2007), Australia remains unique within the advanced industrialized world in lacking any such instrument. The result is a peculiar system of rights protection which makes this case of particular importance to scholars of comparative constitutionalism. PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS, therefore, fills a clear gap in this literature by providing a one-volume, multi-authored and up-to-date overview of some of the most important aspects of this case. As a result, and despite some flaws, this work should prove a valuable edition to the socio-legal section of university libraries and the personal bookshelf of many comparative constitutionalists.

As the introduction to the book by Jeffrey Goldsworthy states, the volume aims “to provide useful background for evaluating how well Australian institutions – governments, legislatures, courts, and tribunals – have been at protecting human rights in the absence of a bill of rights, and for assessing proposals for practical reform aimed at enhancing such protection” (p.4). Although one section does consider particular human rights issues such as property rights and the position of indigenous people, the book does not, and presumably does not aim to, provide an audit of how effective Australia currently is at protecting human rights. Rather, the focus is on both the institutional mechanisms via which such rights are currently protected and on how such mechanisms may be improved and/or supplemented in the future.

This focus is probably sensible in a multi-authored work such as this and ensures that the book has a ready appeal even to scholars not principally interested in the Australian case per se. This value is further enhanced by many of the contributions integrating relevant literature from across the advanced Anglophone world. Furthermore, one section focuses specifically on comparative perspectives with chapters looking, in particular, at the Australian case alongside those of the United States and Canada.

In addition to its institutional and comparative perspective, the book benefits from a number of other significant strengths. In the first place, the editors, Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone, have amassed a strong set of authors many of whom have already made a prominent and important contribution to debates on these matters within Australia. Alongside the editors themselves, these [*244] include Brian Galligan and John Uhr from the field of politics, and Simon Evans, Hilary Charlesworth and George Winterton from the field of law. In addition, there are a number of first-rate contributions. Three, in particular, may be singled out. Adrienne Stone’s piece exploring the potential for using Australia’s existing Constitution to protect rights presents an important and well-researched argument that most of these efforts are undermined jurisprudentially by either the constitutional text or constitutional history. Jeremy Webber’s piece presents an interesting argument in defence of the statutory variant of Bills of Rights focusing on the particular added value which judicial adjudications of individual rights claims can bring to democratic deliberation and debate. This contribution is both valuable in itself and also complements many of the other essays which are generally considerably more skeptical about Bill of Rights instruments. Finally, Simon Evan’s piece, exploring how private property protections included within the Australian Constitution ought to be protected and conceived, is also worthy of note. This chapter should be of particular interest to an American readership given the very similar dilemmas posed within US constitutionalism.

Despite these important strengths, however, the book is also marked by some weaknesses which prevent it from fulfilling its full potential. At the macro level, the book could have benefited from a more systematic and comprehensive treatment of its core themes, these being the institutional configuration of human rights protections in Australia and, relatedly, strategies for improvement. Thus, despite interesting essays examining the way rights are currently protected by the Australian parliament (Uhr, Horrigan) and by the legal system (Creyke), there is not the same consideration of the role of other important institutional actors such as the executive, civil service, Human Rights Commission and the various international bodies which interact with Australia (e.g. the UN Human Rights Committee). At the micro level, and as is perhaps inevitable in an edited volume such as this, the chapter contributions are also of variable quality. Moreover, in a few cases, these chapters suffer from significant deficiencies. For example, although clearly highly important and generally well researched, Megan Davis’ piece on indigenous rights is, in parts, somewhat polemical and lacking in rigor. Thus, the Australian Capital Territory’s electorate is seemingly and completely unfairly denounced as “racist” (p.179), on the basis that it appeared to favour a broad-based anti-discrimination clause in its statutory Bill of Rights rather than the inclusion of a specific right for indigenous people (who presumably were to be defined, at least in part, on racial grounds). Similarly, legitimate indigenous demands for “consultation” are incorrectly elided with the rather more problematic recommendation of the UN’s Committee on the Elimination of Racial Discrimination that “no decisions directly relating to [indigenous peoples’] rights and interests [should be] taken without their informed consent” (p.188) – in other words, a right not of consultation but of veto. [*245]

From a very different perspective and even more troubling than Davis’ piece is Robert Nagel’s chapter examining American judicial review in comparison with the Australian case. In significant part this reads as a tendentious attack on recent Supreme Court jurisprudence. One particularly unfair portion of it is devoted to a discussion of the 2001 LAWRENCE decision which struck down a Texas law (and similar laws in other states) criminalizing private, consensual homosexual conduct between adults. Nagel’s discussion does not even address the Court’s argument that this law presented an unconscionable coercive intrusion by the state into the most intimate of relationships or Justice O’Connor’s argument that it had a severely disproportionate impact on a small and insular portion of the population (gays and lesbians). Instead, and quite erroneously, the law is presented as having been about “protect[ing] . . . heterosexual marriage” (p.231) and its overruling as allegedly resulting in “segments of the public” exhibiting a “significantly enhanced sense of uneasiness and powerless that readily [and one might presume correctly] translates into anger” (p.234). The way in which Nagel manipulates the facts of this case and the deft way in which he presents an oppressing group as victim will be seen by many (this author included) as reflecting the pathology not of judicial imperialism but of the unpleasant face of modern-day homophobia which exerts a significantly greater sway in America than in Australia or many other similar countries.

Despite these various deficiencies, this book represents an important and valuable contribution to the literature on systems of rights protection within Australian and, more broadly, comparative constitutional studies. It provides a good overview of where Australia currently is located with regard to institutional mechanisms for protecting human rights and presents a variety of interesting perspectives on how such mechanisms may be further improved. It is certainly a book to have on hand in the coming years as Australia’s system of rights protections continues to change, even, perhaps, to the point of including some form of national Bill of Rights instrument. Should that eventuate, however, any second edition to this volume would clearly require a new title!

REFERENCE:
Grattan, Michelle. 2007. “Labor Push For Human Rights Law.” THE AGE, 20 February 2007

CASE REFERENCE:
LAWRENCE v. TEXAS, 539 US 588 (2003).

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© Copyright 2007 by the author, David Erdos.

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THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP

by Linda Bosniak. Princeton: Princeton University Press, 2006. 248pp. Cloth. $27.95 / £17.95. ISBN: 9780691116228.

Reviewed by Kif Augustine-Adams, J. Reuben Clark Law School, Brigham Young University. E-mail: adamsk [at] lawgate.byu.edu.

pp.240-242

Linda Bosniak’s stated purpose in writing THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP is “to advance the conversation” between two bodies of scholarship regarding citizenship: the “inward-looking” view and the “boundary-conscious” approach (p.2). The inward-looking body of citizenship scholarship embodies a sense of universalism, of broad inclusion. With its major concern being “the internal life of the political community,” formal membership in the community is both presumed and unquestioned (p.2). The inward-looking view has often been the domain of political philosophers, social theorists, and civil rights activists. The quality of citizenship is foremost.

The “boundary-conscious” approach, in contrast, focuses on the definition of community in the first place (p.2). It is the exclusive nature of community – most often the nation-state whose boundaries ration membership, that receive the most attention (p.2). Immigration scholars and those who study the nature of the nation-state demonstrate a boundary-conscious approach. Membership in and access to the desired political community is neither presumed nor often available at all. The boundary-conscious approach challenges the purported universalism of the inward-looking view with a border. Access to citizenship, rather than its quality, is the first question.

As a practical matter, Bosniak’s task is harder than she initially lets on. Given the general lack of engagement that she describes between two very well-developed bodies of scholarship, she must first create the conversation in order to advance it. Bosniak does a fine job of both in this slim, well-documented volume with 140 pages of text and sixty-two pages of endnotes. In the process, she plumbs the basic question of “citizenship of, and for, exactly whom?” along with citizenship’s whats, wheres, and hows (pp. 1, 15). We may presume to know what we mean by citizen, but Bosniak’s explication makes clear the variety of ways the term is deployed: to identify a certain degree of belonging, to explain a group of rights, to describe legal status, to signify boundaries of membership of a nation-state and more. Conversing cogently with respect to citizenship requires knowing how citizen and citizenship are used, particularly given that so many use the terms in different ways. However deployed, the idea of citizenship is a powerful concept and, not surprisingly, invariably a positive one. Bosniak makes clear the “great honorific” of citizenship (p.28).

The central contribution that Bosniak makes to citizenship scholarship is her [*241] willingness to explicitly confront the tensions inherent in a liberal, inclusive notion of citizenship which is, in reality, bounded by the exclusiveness of the nation-state. Depending on which side of the scholarship, or life experience, or border one is on, either the difference between citizens and aliens, or the similarity, becomes paramount. Recognizing this divide, Bosniak proffers a twist to the great honorific of citizenship: She contemplates the alienage of citizens and the citizenship of aliens. Many citizens – individuals with formal legal membership in the political community – do not receive all the purported benefits of citizenship; they are “second-class citizens” (pp.10, 30). The idea of second-class citizenship is not new, but by framing the discussion in terms of alienage, Bosniak brings the inward-looking approach to citizenship into dialogue with the outward-looking, boundary-conscious approach.

Discussing the citizenship of aliens builds the discourse even more directly. Simply articulating the idea of “alien citizenship” invites a double-take. Bosniak demonstrates the reality of alien citizenship – the access that certain aliens enjoy to some legal, social, and economic benefits – through a variety of US Supreme Court cases including PLYLER v. DOE, MATTHEW v. DIAZ, and GRAHAM v. RICHARDSON. Aliens physically present within the territory of the United States receive significant benefits that non-citizens outside US territory do not. Citizenship of aliens highlights that not all aliens are completely out. Aleinage of citizens highlights that not all citizens are not completely in.

Bosniak’s discussion of the citizenship of aliens centers around the territorial presence of aliens within the United States. That territorial presence complicates the question of borders. Does the alien leave the border behind when she physically crosses into the United States or does she carry the border with her in her body? How does or should the federal government’s plenary power with respect to immigration affect regulation of an alien once admitted (p.99)? Relying on Michael Walzer’s work, Bosniak describes two models of membership – roughly equivalent to the inward-looking and boundary-conscious approaches to citizenship. The separation model substantially limits the government’s ability to regulate aliens once admitted to the territory. The domains of community membership and territorial personhood domain are strictly separated (p.75). The border stays behind and government may not regulate the alien substantially differently than the citizen. The convergence model suggests a significant overlap between membership and territorial personhood. The alien carries the border with her into US territory, such that government regulation of her as an alien is simply part of regulation of the internal community (p.75). The nomenclature of the two models is somewhat unfortunate because the separation model is actually more inclusive. Aliens are to be treated more, rather than less, like citizens. Aliens are less separate, more included. In the convergence model, however, aliens may be treated distinctly as their [*242] physical presence does not necessarily justify or provide for more complete inclusion in the community.

Bosniak saves the best for last. The final chapter is the most intriguing and most directly addresses the moral dilemmas that citizenship and borders present. The book is really about the morality of a membership model based on the nation-state and the borders it enforces, both internally and externally. Bosniak recognizes the political impracticality of calling for open borders: borders are here to stay (pp.123, 136, 138). She does nonetheless compel us to consider whether it is possible to reconcile the universal impulse of liberal citizenship with the exclusive realities of the nation-state. Most of us presume that “the interests of our conationals or coresidents are rightfully privileged over those of national or territorial ousiders” (pp.134-135). What, if anything, justifies that presumption, particularly when citizenship status for the vast majority of the world’s population is not transmutable (p.135)? Is there a principled basis for distinguishing between citizens and aliens or between those territorially present and those not so present? Bosniak does not offer any justifying principle, concluding instead that “However ostensibly committed we are to norms of universality, we liberal national subjects are chronically divided over the proper location of boundaries – boundaries of responsibility and boundaries of belonging” (p.140). Alienage and citizenship are flip sides of the same coin.

CASE REFERENCES:
GRAHAM v. RICHARDSON, 403 U.S. 365 (1971).

MATTHEW v. DIAZ, 426 US 67 (1976).

PLYLER v. DOE, 457 U.S. 202 (1982).

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© Copyright 2007 by the author, Kif Augustine-Adams.

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RECONCEIVING THE FAMILY: CRITIQUE ON THE AMERICAN LAW INSTITUTE’S PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION

by Robin Fretwell Wilson (ed). Cambridge and New York: Cambridge University Press, 2006. 560pp. Hardback. £55.00/$95.00. ISBN: 0521861195. eBook format. $76.00. ISBN: 9780511223181.

Reviewed by Rosalie R. Young, Public Justice Department, StateUniversity of New York at Oswego. Email: ryoung [at] Oswego.edu.

pp.237-239

In 2002, following decades of dramatic changes in the make up of families and family law, the American Law Institute published its “first comprehensive work in the field of family law”: PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (ALI website). The six principal parts focused on child custody, child support, division of property at dissolution, compensatory payments (alimony), domestic partners, and agreements. These issues became increasingly important during the second half of the twentieth century as restrictions on entering into marriage and dissolving marital bonds were loosened, and non-traditional families became more common.

The twenty-seven contributors to RECONCEIVING THE FAMILY view the PRINCIPLES as a guide to judges and legislators who are considering family law reform. In the twenty-six primary articles, divided into nine parts, the authors offer a critical examination of the PRINCIPLES and the process in which the PRINCIPLES were developed. The contributors, primarily professors of law, spare no punches in their critiques. While they respect the effort that went into the PRINCIPLES, they are wary of many of the ALI recommendations and question whether the full range of opinions were considered in the draft of the PRINCIPLES. Further the contributors decry what they see as a frequent lack of evidence and explanation for the recommendations in the PRINCIPLES. Some suggest that legal elites worked on the PRINCIPLES without due consideration given to the social and cultural institutions guiding families today. The contributors urge those contemplating reform to consider both the PRINCIPLES and RECONCEIVING THE FAMILY before promoting alterations in existing law and policy.

In each of the chapters, the contributors briefly summarize the recommendations in the PRINCIPLES before going on to offer their own critiques. The authors draw on court cases, legislative activity and the commentary of practitioners and consultants. The many citations and footnoted comments add welcome clarification. In addition, international perspectives are offered in many of the articles and most specifically in the three articles which focus on international law.

The PRINCIPLES attempts to promote legal reform through consideration of such major issues as judicial discretion, dissolution of long term cohabitation of both heterosexual and homosexual [*238] couples, de facto parenting, and a past caretaker child care practice standard for determining custody. While the contributors agree that these are areas which require reconsideration, they frequently question whether the PRINCIPLES have taken the reality of modern families and legal practice into account. Further, they suggest that in an effort to standardize practice, the PRINCIPLES have frequently opened the door to greater judicial discretion and promoted more legal wrangling and costs, rather than less.

For example, Lynn D. Wardle criticizes the PRINCIPLES for frequently ignoring community standards of spousal behavior and marital misconduct in determining alimony and property awards. She points out that opportunities to pursue misconduct through existing tort or criminal legal processes as noted in the PRINCIPLES will not reduce the tension during marital dissolution or ease the burden on the remaining spouse or children. Similarly, Robin Fretwell Wilson questions the responsibility which the PRINCIPLES give to de facto parents without fully evaluating the possibility that giving custodial responsibility to these adults, such as ex-live in partners, may expose children to abuse. Others argue that the PRINCIPLES grant new rights to adults without conferring complementary responsibilities, such as support.

Additional chapters review the imputation of income, the role of the underemployed or unemployed parent, informal family contracts and intent, the emotional and legal responsibilities stemming from cohabitation, and premarital and separation agreements. Other sections cover the freedom of partners to engage in private contracts and the possible vulnerability of the weaker partner, the financial and emotional costs to children following dissolution, and alternatives to our adversarial system of dissolution. Marie T. Reilly explores the issue of credit responsibility, a complicated issue not covered in the PRINCIPLES, but which effectively demonstrates one area in which the impact of marital dissolution goes beyond the family directly involved.

While readers of RECONCEIVING THE FAMILY would benefit from careful consideration of this entire volume, the division of the book into nine parts and the lengthy index make this book a ready resource for those focused on limited aspects of family law. The authors, however, clearly point out that most of the issues which must be resolved during dissolution of a marriage or significant relationship cannot be considered in a vacuum. Individual issues, for example, of employment, income, property division, credit, custody and support are intertwined and cannot be settled independently or in isolation.

All in all, the authors raise vital questions and clearly demonstrate that there are no easy answers. While for many, the two parent biological model remains the ideal, decreasing numbers of children grow up within such families and the social institutions of marriage and family have been altered. Pressure upon the state to promote equitable treatment of the parties, and particularly [*239] the children, vies with the philosophical view that the parties can best determine what will work for their particular family. As Carl E. Schneider points out in the conclusion, family law reform, while well intentioned, has severe limitations, since reforms rarely work as anticipated and the people involved are rarely influenced as expected.

The argumentative nature of many of the selections presses the reader to become actively involved in considering the implementation of the recommendations and criticisms articulated. While the contributors question the results of the ALI effort and see little evidence of the impact of the PRINCIPLES on family law reform, they view as positive the effort to direct attention to the issues raised.

The goal of RECONCEIVING THE FAMILY, according to its editor Robin Fretwell Wilson, is to promote a “robust discussion” of the issues and recommendations promulgated in the PRINCIPLES. The contributors to this volume have raised a multitude of concerns which are vital to legal practitioners, judges and the parents and children who are the focus of family law. The authors force the thoughtful reader, regardless of orientation, to carefully rethink assumptions, traditional responses and reform and have therefore succeeded in meeting their goals.

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© Copyright 2007 by the author, Rosalie R. Young.

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THE EUROPEAN UNION DECIDES

by Robert Thomson, Frans Stokman, Christopher Achen, and Thomas Konig (eds). New York and Cambridge: Cambridge University Press, 2006. 372 pp. Paperback. $39.99/£21.99. ISBN: 052167994X. Hardback. $110.00/£60.00. ISBN: 0521861896. eBook format. $32.00. ISBN: 0511243286.

Reviewed by Běla Plechanovová, Department of International Relations, Faculty of Social Sciences, Charles University Prague. Email: plechanovova [at] fsv.cuni.cz.

pp.233-236

Decision-making processes in the European Union has attracted attention of political scientists for years. The topic became appealing largely due to several parallel processes of the last two decades: enlargement by a growing number of new member states, widening of the scope of EU policies, introduction of majority voting in the main decision-making body, the Council of Ministers, and strengthening of the European Parliament as a legislative body. The EU had obviously gone through a transformation, but there was little consensus about the nature of the beast which emerged from it. Various methodologies were introduced into the area of study, but without a clear common ground. This book brings in a new approach to the topic in several respects. In principal it puts aside the question of what the European Union is – even very clear assumptions about the actors and their behavior are in the background of the project – and concentrates on how the EU operates on a daily basis in the area of producing new rules for its member states and their citizens. The starting position of the authors is that the European integration process is not directed exclusively by the “great bargains” which have changed the institutional setting of the EC/EU, but also by small, everyday incremental decisions which give shape to the rules influencing the lives of all EU citizens.

The aim of the research project is to analyze the legislative process in the European Union by testing formal deductive models which were constructed by different political scientists engaged in the study of political institutions and legislative decision-making, but partly outside the context of EU politics, on a single data set of EU legislative proposals (66 legal acts, 162 issues; 1999 to 2001) picked up on the basis of an extensive interview survey of experts (appoximately 150 interviews) who had insider information about preferences of the actors. The preferences of the actors (member states, Commission, European Parliament) on each issue were ordered on a uni-dimensional scale of identical scope (1 to 100) to permit later testing of the models and comparison. The models, based on diverse notions of the nature of decision-making in political entities, were adjusted by the authors to conform to the conditions in the EU. A rational choice institutionalism theoretical framework provides the unifying background to the project, as in the opinion of the authors it makes available the most precise devices for enlightening specific decision-making outcomes. Nevertheless, the individual models [*234] offer diverse explanations of “the processes through which actors’ policy preferences are transformed into collectively binding outcomes embodied in EU legislation” (pp.50-51). The basic question is whether any of these models can offer a reasonable tool for predicting the outcomes of legislative decision-making in the EU.

The book deserves major praise for the methodological clarity which disciplined a team of fifteen political scientists to follow closely a single research design (Thomson, Stockman: Chapter 2). The assignment for each of them was to present the model/s, to discuss the assumptions behind it and to explain how it can be applied to the decision-making process of the EU. A case-study then follows: the model is introduced by the means of its application to a selected legislative act; a detailed description of the controversial issues and the circumstances of its adoption. In the next section the model is subjected to empirical test and the results are interpreted. Altogether, eleven models are presented and tested on a basically identical data set in seven chapters of the book. All researchers developed their models before they saw the empirical data to allow transparency of testing and comparability among results of the empirical tests. Two concluding chapters are devoted to final assessment of the results and comparison of the models in terms of their ability to predict actual decisions in the EU legislative process (Achen, Chapter 10) and to evaluation of the contribution of the whole project for the area of EU research (Schneider, Steunenberg, Widgrén: Chapter 11).

The models presented in the book fall into three main groups, according to the basic assumptions about the nature of the decision making process. The first group includes procedural models (e.g., Shepsle 1989; Tsebelis 1994; Crombez 1997), emphasising decision-making rules and formal procedures that constrain the actors. Formal legislative rules as given by the founding treaties are used as the basis for these models: they define players, their competencies and the sequence of steps taken by individual players. A second group consists of bargaining models (e.g., Coleman 1990; Bueno de Mesquita 1994; Stokman and Van den Bos 1992). These assume that the institutional setting provides just the playground where players negotiate about possible outcomes of the game. The rules are important as they determine who the actor is and how much weight s/he has in the negotiation. Still, it is the bargaining which is more important for the outcome of the process, not the formal rules. The third group of models combines elements of the preceding two (Putnam 1988; Schneider and Cederman 1994; Hug and König 2002). Negotiation may take place in the first stage of the decision-making process, but formal rules are decisive for the outcome.

What may seem as disappointment is a relatively poor performance of the models in their predictive power. The distance of their results from the so-called baseline, atheoretical models – represented by the mean and unweighted median voter positions – is relatively small which means that none of the models describes the decision making process of the European Union really [*235] well. “Our models differ from reality far more than they differ from each other” (p.295). The authors consider their project to be just a beginning of a process of model adjustment and refinement of methodology which should in due time bring a major improvement of our knowledge about decision-making in the EU. They have made the first significant step which definitely resulted in an advancement of standards of scientific inquiry in this area of European research.

But next to this achievement, the results of the project are still important: they brought significant contributions to several issues of EU research, namely to the discussion about the changing role of the European Parliament in the legislative process. The EP as a co-legislator under co-decision procedure comes up as an influential actor (Steunenberg, Selck, Chapter 3). The results also confirm that the nature of decision-making in the EU is highly consensual and inclusive. Positions of all actors are contained in the solution as much as possible, and consensus is sought even in situations when the decision-making rule would allow majority voting. Still, the final outcome is considerably influenced by the weight of the actors as reflected by their voting power. This brings attention also to the political relevance of these findings, as the voting power of the actors is given by the decision-making rule. The highly controversial discussion about these issues in the repeated rounds of institutional reform of the EU, last time during the Convention of 2002-2003 and the subsequent Intergovernmental Conference 2003-2004, reflect the significance of this core aspect of institutional setting of the EU.

As to the methodology of the research, more concrete and detailed comments can be found in Bueno de Mesquita (2004), in a special issue of EUROPEAN UNION POLITICS devoted to this particular project. Using the advantage of knowing the results of the project ex post, one may comment on its assumptions – eg. was the supposition to select for the empirical research only legislative acts which were considered to be controversial and politically important by the actors correct? Compromise and exchange models emerged from the comparison as the winners, and they both presume that the actors during the decision-making process take into consideration their mutual interdependence in the repeated games they have to play. A high level of consensus and the inclusive nature of repeated games may lead the actors to behavior which encompasses a much broader spectrum of issues under consideration at certain periods. Other proposals, seemingly uncontroversial and politically unimportant, can also be a part of the forethought of the actors, who are motivated to follow the positions of partners on the whole spectrum of issues decided upon.

The reader may miss in the book the access to the data set of positions of all actors to all issues. Since the presented models are quite complex and the arguments supporting them often very technical, an overview of all the empirical data would add significantly to the comprehensibility of the analysis. [*236]

The book represents a new approach to the study of political processes within institutional setting of the EU, and most probably also outside this area. It proves that applying and testing diverse models simultaneously against identical empirical data leads to a higher level of sophistication of scientific knowledge in this field. It is not easy, it is not cheap, but in the long run it surely will pay off.

REFERENCES:
Bueno de Mesquita, B. 1994. “Political Forecasting: An Expected Utility Model.” In Bueno de Mesquita, B. and Stokman, F. N. (eds.) EUROPEAN COMMUNITY DECISION MAKING: MODELS, APPLICATIONS AND COMPARISONS. New Haven: Yale University Press, pp.71-104.

Bueno de Mesquita, B. 2004. “Decision-Making Models, Rigor and New Puzzles.” 5 EUROPEAN UNION POLITICS 125–138.

Coleman, J. S. 1990. FOUNDATIONS OF SOCIAL THEORY. Cambridge, MA: The Belknap Press of Harvard University.

Crombez, C. 1997. “The Co-decision Procedure in the European Union.” 22 LEGISLATIVE STUDIES QUARTERLY 97-119.

Hug, S. and König, T. 2002. “In View of Ratification: Governmental Preferences and Domestic Constraints at the Amsterdam Intergovernmental Conference.” 56 INTERNATIONAL ORGANIZATION 447-476.

Putnam, R. D. 1988. “Diplomacy and Domestic Politics: The Logic of Two-Level Games.” 42 INTERNATIONAL ORGANIZATION 427-460.

Shepsle, K.A. 1989. “Studying Institutions: Some Lessons From The Rational Choice Approach.” 1 JOURNAL OF THEORETICAL POLITICS 131-147.

Schneider, G., and Cederman, L. E. 1994. “The Change of Tide in Political Cooperation: A Limited Information Model of European Integration.” 48 INTERNATIONAL ORGANIZATION 633-662.

Stokman, F. N. and Van den Bos, J. M. M. 1992. “A Two-Stage Model of Policymaking with an Empirical Test in the U.S. Energy-Policy Domain.” In Moore G. and Allen Whitt, J. (eds). THE POLITICAL CONSEQUENCES OF SOCIAL NETWORKS. Greenwich, Connecticut: JAI Press, pp. 219-53

Tsebelis, G. 1994. “The Power of the European Parliament as a Conditional Agenda Setter.” 88 AMERICAN POLITICAL SCIENCE REVIEW 128-142.

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© Copyright 2007 by the author, Běla Plechanovová.

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TRANSITIONAL JUSTICE IN THE TWENTY-FIRST CENTURY: BEYOND TRUTH VERSUS JUSTICE

by Noami Roht-Arriaza and Javier Mariezcurrena (eds). New York and Cambridge: Cambridge University Press, 2006. 358pp. Cloth $88.00/£45.00. ISBN: 0521860105. Paper $36.99/£19.99. ISBN: 0521677505. eBook format. $30.00. ISBN: 0511247907.

Reviewed by Adriana Buliga-Stoian, Department of Political Science, Binghamton University – SUNY. Email: mbuliga1 [at] binghamton.edu

pp.229-232

The collected case studies in this volume address the question of achieving justice in the face of past human rights violations. The question in itself is quite broad and could be approached from a number of angles. However, in her introduction, Noami Roht-Arriaza successfully defines the main focus of the book, as well as the main themes that run through the following chapters. From the introduction to Ellen Lutz’s concluding chapter, the volume constitutes a well-organized, cohesive, and detailed account of the institutions and processes that can be employed to achieve the goals of transitional justice—that is, to bring justice and reconciliation to societies torn by legacies of human rights violations.

Roht-Arriaza’s introduction defines transitional justice as the “set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law” (p.2). Similarly, the book focuses on two recurring themes of transitional justice, the search for truth and justice, as well as the mechanisms employed to secure them: prosecutions and criminal investigations, truth commissions, vetting and cleansing of security forces, and reparation programs. As the editor notes in her introduction, there are many other aspects of transitional justice that remain outside the scope of the book, but an attempt to address them all might render the enterprise devoid of any meaningful contribution.

The impressive depth of the analysis in this volume easily makes up for the inevitable omissions implied by its narrow definition of transitional justice. The development of truth commissions and tribunals is analyzed in terms of historical development, which brings the chapter authors to address some current attempts at building such institutions, and their geographical, political, functional, and institutional variations. Originally, truth commissions and tribunals were used interchangeably to administer transitional justice. Present-time transitional justice has moved toward more complex and multi-layered institutional designs meant to overcome the shortcomings that have marked the process in the past. Newer developments include the coexistence of different transitional justice mechanisms within the same country or institutional structure, and complex interaction between local, national and international layers of administration. [*230]

The case studies presented in this book illustrate these trends and the manner in which a combination of different functions and different levels of administration has affected the transitional justice process. The cases were selected to exemplify these aspects as well as to account for variation across time and space, political conditions, range and autonomy of relevant actors, and institutional setup. The presentation of the cases studies is divided into two parts, each with its own central theme. Part I deals with aspects of institutional design of the tribunals and truth commissions. Part II analyzes the layering of the process at the local, national and international levels, with an emphasis on the more recent development of local tribunals and reconciliation attempts.

The emphasis in Part I is placed on the types of organizations that can be used to administer transitional justice and how accountability can be distributed between or within various institutions. The cases presented vary geographically as well as in terms of the context of the crimes in question. There is thus enough variation in the cases to paint a useful, if incomplete picture of transitional justice across time and space. At the same time, the similarities across cases are salient enough to facilitate useful comparison. For example, Sierra Leone and Columbia are somewhat similar in terms of the context in which the crimes under investigation were committed – armed conflict, as well as in terms of the underlying goals of the established transitional justice process – reconciliation in order to prevent repeated outbreaks of violence, and the pressures coming from both domestic and international actors. Nonetheless, each country has structured its efforts for justice and reconciliation differently. Sierra Leone’s efforts were placed into two separate institutions, one purely national and investigative, and another established with international support and intended to prosecute international crimes not covered by the blanket amnesty issued at the end of the conflict. Colombia, on the other hand, has chosen to place all its truth and justice efforts and mechanisms in one organization, while the legislators and the government are struggling to find the right mix of toughness and forgiveness to guarantee achievement of both reconciliation and justice. The two cases speak to one another and are good choices to be placed side by side. As the two cases show, truth and justice are not necessarily mutually exclusive and can be combined within the same institution or across institutions within the same system. The problems as well as the virtues of such an approach are discussed at length in the respective chapters and can be used for further reflections on the issue.

Another interesting parallel can be drawn between the cases of transitional justice in Peru and Mexico. These cases are similar to the extent that efforts in both countries deal with crimes committed during an authoritarian regime but differ, again, in how they organized and balanced the principles of truth and justice within the institutional framework. The former combined the two in one institution and took it upon itself to make recommendations for later prosecution, while the latter chose to [*231] break up the process in a multitude of institutions and layers. Another interesting aspect that the authors bring to light in these two cases, which is also a theme in the cases of Colombia and Sierra Leone, is the question of independence from political pressures and the credibility of the institutions. It is an aspect that, while prevalent in all cases presented here, could in itself become a stand-alone topic of research for which this collection of studies would be an excellent building block. Generally, the issue of constraints faced by these institutions and how they managed to overcome them is well developed throughout the case studies and could be a topic of separate analysis.

Part II deals with the organization of transitional justice at the local, national, and international levels, as well as the various ways in which they supplement or condition one another. The case of East Timor is revisited in Part II (it was discussed in Part I as an illustration of attempts to reconciliate national and international constraints through the framework of one institution designed to investigate and prosecute crimes committed during a foreign occupation), with an emphasis on local-level efforts to bring justice and reconciliation within the realm of smaller communities affected by violence. The Rwandan case illustrates the same type of local-level transitional justice intended to deal with the aftermath of a bloody war in which ordinary people were both victims and perpetrators of heinous crimes. In both cases, the authors again pay special attention to the interplay between these efforts at the local level and efforts undertaken by other institutions at the national level. The successes and shortcomings of this approach are analyzed in detail, and it is fair to conclude with the authors that, when such efforts complement national level efforts for transitional justice, they produce beneficial results. This volume’s analyses of such cases and the interplay among different types of institutions illuminates an interesting aspect of transitional justice that can serve as an important reference for later studies of the topic.

While the cases of Rwanda and East Timor focus attention on the interplay between local and national aspects of transitional justice, the chapters on Iraq and Afghanistan illustrate the interaction between national and international layers of constraints and aspirations for transitional justice. Iraq exemplifies the effects of international pressures and influences on national administration of transitional justice, while Afghanistan is a good example of how domestic issues can constrain the process. Finally, the cases of Chad and Argentina present the process in a temporal perspective and draw out the importance of the development of new approaches in the tricky process of obtaining justice for crimes committed in the past. These two cases demonstrate how international and domestic influences interact over time in shaping the transitional justice process.

The conclusion draws together the main findings of the volume. It draws attention once again to the two main themes motivating the case studies, as well as some relatively minor findings that could be of interest for future research. All in all, these studies not [*232] only address the question that the book seeks to answer, but also they manage to point to new directions of research without sacrificing the volume’s coherence or consistency.

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© Copyright 2007 by the author, Adriana Buliga-Stoian.

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POWERS RESERVED FOR THE PEOPLE AND THE STATES: A HISTORY OF THE NINTH AND TENTH AMENDMENTS

by Thomas B. McAffee, Jay S. Bybee, and Christopher Bryant. Westport, CT: Praeger, 2006. 308pp. Hardback. $144.95/£80.00. ISBN: 0313313725.

Reviewed by David Ponet, PhD, Department of Political Science, Columbia University. Email: david.ponet [at] gmail.com.

pp.224-228

In keeping with this series, Thomas B. McAffee, Jay S. Bybee, and Christopher Bryant have set out to provide a guide to the history of the 9th and 10th amendments for lawyers, laypersons, and academics alike. At least for the non-lawyer, the 9th and 10th amendments are arguably among the more obscure of the Bill of Rights – perhaps because as these authors cogently demonstrate, the two amendments have largely fallen into obsolescence, if not permanent interment. But in the process of marching the reader through the initial emergence and subsequent fates of these amendments, the authors have tacitly and explicitly touched on certain of the vexing tensions that often, if not always, confound federal democratic systems. Indeed, according to many traditional conceptions of sovereignty, the sovereign power is supreme and indivisible, the final instance of power and authority, un-beholden to any other authority outside itself (see Bodin 1992; Hobbes 1996; Rousseau 1997; Schmitt 1985; Austin 1995). Yet the Framers of the American constitution in a sense tried to do just that – that is, divide or layer sovereignty – as they sought to create a ‘dual sovereignty’ system with state and federal governments as coexistent and coequal. Even more, McAffee, Bybee, and Bryant note that the Framers were also animated by some commitment to popular sovereignty. Although the authors sidestep the difficult task of defining sovereignty and popular sovereignty, presumably they mean that the Framers held ‘the people,’ either the nation as a whole or the people organized variously in the separate states, as the ultimate fount of power and authority.

The 9th and 10th amendments are known by many as the “federalism amendments.” The 9th seeks to clarify that the enumeration of particular rights ought not be construed as the full extent of rights retained by the people – it seems to guard against the presumption of a limited rights scheme. The authors demonstrate with their historical recasting that opponents of a Bill of Rights feared that such an enumeration posed the danger of a presumption against other rights not explicitly listed. The 10th amendment, meanwhile, cryptically reserves those other powers not expressly delegated to Congress or prohibited from Congress as being reserved to the states or the people. McAffee, Bybee, and Bryant appropriately ask at the start of the book: “What were these rights that the people retained? What rights did the states reserve? And why was the Constitution so indefinite as to reserve rights to the states or the people, without specifying which of those parties reserved the right” (p.2)? [*225] The authors argue that state legislatures represented the sovereign people and were accordingly conceived as holding plenary power unless the people expressly proscribed state power. Accepting this claim, which is likely historical in nature, it begs questions regarding the role of the House of Representatives which also constituted a locus of popular sovereignty (see Madison’s Federalist Paper # 39). In fact, the authors note an 18th century conception of sovereignty that governed for a time, wherein only one entity could be in possession of sovereignty at one time. It bears mentioning that one of the great experiments inherent in the creation of America’s federal system was the attempt to institutionalize several instances of sovereignty that were concurrent on national and local levels. While not taking on directly the competing or vague notions of sovereignty that abounded (particularly when squared with notions of republicanism or democracy), the tensions that federalism wrought with respect to sovereignty linger throughout the book.

The strongest aspect of this book lies in its lucid description of these federalism amendments and their applications – from their moment of inception to the present day.
The authors chronicle the debate that unfolded as to whether a Bill of Rights was necessary. George Washington, for instance, argued against a Bill of Rights because everything that was not expressly relinquished, he maintained, was clearly retained. James Wilson of Pennsylvania said, “The consequence is that an imperfect enumeration would throw all implied power into the scale of government; and the rights of the people would be rendered incomplete” (p.30).

The authors show how such fears gave rise to the 9th and 10th amendments, and how these amendments were at the very center of debate over the omission of a Bill of Rights. Ultimately, they contend, in agreement with Akhil Amar (1998), these amendments (particularly the 10th) reinforce the Article 1 provision of limited national government. In the case of the 10th amendment, some argue it emphasizes power reserved to the states, while others say it underscores the sovereign power of the people. All the same, the authors note that “The tenth amendment is a general reservation of undelegated powers; it is not a fundamental rights provision” (p.44). They cite Amar who reads it as an exclamation point regarding general themes of popular sovereignty and federalism – of course these two concepts are not one and the same thing and may work at cross-purposes. Without straying too far, consider that a doctrine of popular sovereignty might assert the primacy of the people’s will understood as an organic whole, while federalism balks at the notion of a unified whole or common will in favor of separate and distinct state sovereigns or wills.

For those uninitiated to the twists and turns of the 9th and 10th amendments, the book will prove engaging, for the evolution of these amendments arguably tracks the evolution of the country. While aware of the potential tensions between different spheres of government, the authors observe that the [*226] “federalism premise begins from quite a different premise that states have the general power of a sovereign and the national government is of limited powers” (p. 66). Nevertheless the devil may be in the details. Thus McAffee, Bybee, and Bryant show that with the Sedition Act, for example, an expansive reading of Article 1’s ‘necessary and proper’ clause could lead to the interminable accretion of federal power.

MCCULLOCH stands out as a preeminent federalism opinion. On the authors’ account, Maryland held to an 18th century conception of sovereignty when they argued that states alone were the true sovereigns. Chief Justice Marshall rejected their argument and maintained that ‘the people’ were sovereign, that ‘the people’ were represented by the federal government and therefore the federal government was supreme in its orbit of action. The authors, however, point out that Marshall set up a false dichotomy between the sovereignty of state government and sovereignty of the people. He neglected the critical middle which was the people as organized by states or the more complex notion of a people within separate and distinct states. By asserting that the people as a whole adopted the constitution – even if this argument relies on fiction, for in fact, the constitution was ratified by states – Marshall finds no presumption against the exercise of federal power. On Marshall’s interpretation, the 10th amendment protected implied powers for the federal government and militated against reserved state powers.

The authors impute a tension to the Framers’ thinking. On the one had, the Framers believed in natural, inalienable rights that limit government, while on the other hand, they espoused a notion of unlimited sovereignty. Further, the Framers believed the authority to make basic decisions about government was itself inalienable. In the course of offering such astute observations, however, the question regarding the true locus of sovereignty eludes the reader, as perhaps it eluded the Framers, not to mention the Courts over the ages. One point the authors do make is that deployment of the 9th and 10th amendments in the service of protecting individual rights is a betrayal of the amendments’ history.

The most transformative period vis-à-vis the relationship between the federal government and states is arguably the New Deal era. Rulings like BUTLER and DARBY led to the expansion of the federal government based on a logic that treated the distinction between direct and indirect effects on interstate commerce as one of degree rather than kind. “Darby thus inaugurated a period of near prostrate judicial deference to Congress’s views about the scope of its power under the Commerce Clause” (p.159). As a trend, though, the authors witness the diminution of state sovereignty in the 2nd half of the 20th century, an unraveling of the dual sovereignty view, and a reading of the Commerce Clause that rendered the enumerated powers scheme “nugatory.” The authors discuss Justice Brennan’s view that Congress is composed of state representatives who would therefore be unlikely to disregard state concerns and [*227] Justice Blackmun who argued it was the proper role of Congress – not the Courts by way of invoking the 9th, 10th, or any other amendments – to protect federalism. Indeed, between 1936 and 1995 the Court upheld every federal statute regulating private conduct that was challenged for lying beyond the scope of Congressional power under the Commerce Clause. Nevertheless, McAffee, Bybee, and Bryant argue that the real concern of the 10th amendment was the “vitality of reserved powers” (p.192). Their view most clearly comes to light when they state: “Unless and until the Court honors the substance as well as the form of the enumerated powers doctrine, however, the Tenth Amendment will either be reduced to a dead letter or stand for some proposition irrelevant to its text, history, and original purpose” (p.194).

The 21st century, to be sure, has fared no better, as the Courts have fallen to inconsistent rulings. What is more, the 9th amendment’s trajectory has tracked that of the 10th. Intended to prevent federal expansion, the 9th has strangely, been invoked to expand federal power. Traditional interpretations have regarded the 9th amendment as protecting a system of enumerated powers and the rights thus secured against the threat posed by enumerated limitations on national power. The authors trace the historical debates surrounding the 9th amendment’s adoption and argue at its core it was a federalism amendment, not a fundamental individual rights provision as contemporary courts have errantly suggested. “The deriving of national powers from the inclusion of limits on powers was precisely what the Ninth Amendment was trying to prevent” (p.232). To the detriment of most mainstream accounts, they argue, the federalism provenance has been ignored.

In all, McAffee, Bybee, and Bryant do a good job of shedding light on the history and development of the 9th and 10th amendments, and present the reader with a rich appreciation for the tangled relationship between state and federal governments in the US constitutional system. Sovereignty continues to be a contested idea (at least in political theory literature), particularly within federal arrangements; exploration of the history of the 9th and 10th amendments gives flesh to that contest.

REFERENCES:
Amar, Akhil Reed. 1998. THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION. New Haven: Yale University Press.

Austin, John. 1995. THE PROVINCE OF JURISPRUDENCE DETERMINED. New York: Cambridge University Press.

Bodin, Jean and Julian Franklin ed. 1992. ON SOVEREIGNTY. New York: Cambridge University Press

Hobbes, Thomas. 1996. LEVIATHAN. New York: Cambridge University Press.

Rousseau, Jean-Jacques and Victor Gourevitch ed. 1997. THE SOCIAL CONTRACT AND OTHER LATER POLITICAL WRITINGS. New York: Cambridge University Press. [*228]

Schmitt, Carl. 1985. POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY. Cambridge, MA: MIT Press.

CASE REFERENCES:
MCCULLOCH v. MARYLAND, 17 U.S. 316 (1819).

US v. BUTLER, 297 U.S. 1 (1936).

US v. DARBY, 312 U.S. 100 (1941).

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© Copyright 2007 by the author, David Ponet.

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TRUTH COMMISSIONS AND PROCEDURAL FAIRNESS

by Mark Freeman. Cambridge and New York; Cambridge University Press, 2006. 422pp. Hardback. $75.00/£45.00. ISBN: 0521850673. Paper. $29.99/£17.99. ISBN: 052161564X.

Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University. E-mail: d.w.jackson [at] tcu.edu.

pp.221-223

Marc Freeman’s book will chiefly appeal to practitioners or to those who teach practitioners. The first ninety pages or so of his introductory pages present a solid review of the variable nature of truth commissions and of the substantial literature that has been published about them. Early on Freeman defines his topic:

A truth commission is an ad hoc, autonomous, and victim-centered commission of inquiry set up in and authorized by a state for the primary purposes of (1) investigating and reporting on the principal causes and consequences of broad and relatively recent patterns of severe violence or repression that occurred in the state during determinate periods of abusive rule or conflict, and (2) making recommendations for their redress and future prosecutions. (p.18)

So far most truth commissions have not heard from the perpetrators, the notable exception being the Truth and Reconciliation Commission in South Africa that employed the inducement of amnesty in exchange for perpetrators’ “truthful” acknowledgment and disclosure of crimes. While the Truth and Reconciliation Commission (TRC) received much praise, it is important to note that among the principal criticisms of the South African TRC is that most of the statements before the commission were not sworn to nor tested by cross-examination. Indeed, one critic was disturbed by the suggestion by the TRC that there are different sorts of truth. In addition to discerning “objective factual truth,” the TRC suggested there is also “personal or narrative truth,” “social or dialogue truth,” and “healing or restorative truth” (Jeffrey 1999, at 10). While such distinctions may be justifiable outside a criminal prosecution, they do make the standards for procedural fairness considered by Freeman especially important. However, when he discusses the standards for admissible evidence before public hearings conducted by truth commissions, he concludes that they “should adopt a broadly permissive approach to the admissibility of evidence at public hearings” and that “[r]elevance should be the primary criterion for admissibility (p.247). It is notable that later in his review when he considers the standards for publication of truth commission findings, he does add that the “probative value” and the “reliability” of the source of evidence ought to be taken into account (p.277). Still, he argues that truth commissions’ “attempt to heal a violence-ridden society, and to facilitate social consensus involved concerns that are quite distinct from the localized, more insular, and more precedent-based reasoning of courts,” and that “a truth commission’s heightened concern with victims’ experiences contradicts the usual imperative of courts to neutrally probe [*222] and question the testimony of witnesses” (p.72).

The key point is that while Freeman’s Chapter 2 reviews the background and derivation of the procedural standards that might be applied to Truth Commissions, the balance of the book considers suggested specific standards for statements, subpoenas, searches and seizures, public hearings, and publication of commission findings. The chapters addressing the topics are quite well done, but they may contain too much detail to hold the interests of most readers. Indeed, the summary of standards presented in the final chapter would suffice for most of us.

Transitional justice has become an important theme over the past several decades. Several versions of transitional justice involved transnational or international tribunals. Especially since the 1998 UN Rome Conference that led to the creation of the International Criminal Court, books that consider the different means for dealing with those who commit genocide, serious war crimes or crimes against humanity have been legion. The Hague prosecutions of the International Criminal Tribunal for the Former Yugoslavia (ICTY) have illustrated the heavy commitment of both time and resources that is required in the trial of a major figure such as Slobodan Milosevic, as well as the difficulty of bringing other major figures before the jurisdiction of the court (Radovan Karadzic and Ratko Mladic). Conversely, prosecutions under authority of the International Criminal Tribunal for Rwanda (ICTR) have illustrated its relative incapacity for dealing effectively with a large number of perpetrators who were complicit in the crime of genocide. Prosecutions in national courts for crimes that may be subject to universal jurisdiction, either under jus cogens or under obligations accepted under international covenants, are an alternative, although so far these have been both controversial and infrequent. Truth Commissions are commonly considered, either as an alternative or supplement to criminal prosecutions. Even if they do not overcome impunity, truth commissions win hands down over private or public vengeance—with no procedural safeguards. And we should remember, as does Freeman, that amnesia often is a politically-appealing alternative.

Probably the best overall book on truth commissions is Priscilla Hayner’s 2001 book, UNSPEAKABLE TRUTHS, while one of the best books on war crimes tribunals is Gary Bass’ STAY THE HAND OF VENGEANCE. Hayner’s view of truth commissions is multi-faceted. They ought to serve to clarify and acknowledge the truth, to contribute to justice and accountability, and to outline institutional responsibility and recommend reforms (Hayner 2001: Chapter 2). Later in her book she acknowledges the criticism of truth commissions that “they are likely to weaken the prospects for proper justice in the courts,” or even that they may be “intentionally employed as a way to avoid holding perpetrators responsible for their crimes” (Hayner 2001, at 86). While there may have been tradeoffs between prosecutions and truth telling in Guatemala, El Salvador and South Africa (the only explicit tradeoff), the [*223] weakness of criminal justice systems, especially in Guatemala and El Salvador, belies the prospects of effective prosecutions. Indeed, those countries serve well to illustrate the difficulties of achieving horizontal accountability for human rights abuses through any process in such countries (Mainwaring and Welna 2003: especially Part I).

Another excellent book is the1999 anthology edited by Roy Brooks, WHEN SORRY ISN’T ENOUGH, which contains selections beginning with the Nazi Holocaust and concluding with South Africa. It is interesting that it also includes sections on the persecution of Japanese Americans during World War II and on “Jim Crow” racial segregation in the US. Several of its selections consider the prospect of monetary reparations for the victims of abuses or their heirs, which is still a lively and controversial topic.

Freeman’s book is highly recommended for those who want to engage in the hard work of studying procedural fairness in extraordinary forums in some detail. As he notes, his inquiry “has compelled the conclusion that there is tension among the various guiding principles of fairness and between those principals and other procedural objectives, and between both of these and the practical realities of truth commission work” (p.154).

REFERENCES:
Bass, Gary Jonathan. 2000. STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIME TRIBUNALS. Princeton and Oxford: Princeton University Press.

Brooks, Roy L. (ed.). 1999. WHEN SORRY ISN’T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR HUMAN INJUSTICE. New York and London: New York University Press, 1999.

Hayner, Priscilla B. 2001. UNSPEAKABLE TRUTHS: CONFRONTING STATE TERROR AND ATROCITY. New York and London, Routledge, 2001.

Jeffrey, Anthea, 1999. THE TRUTH ABOUT TRUTH COMMISSIONS. Johannesburg, South African Institute of Race Relations, 1999.

Mainwaring, Scott and Christopher Welna (eds.). 2003. DEMOCRATIC ACCOUNTABILITY IN LATIN AMERICA. New York: Oxford University Press, 2003.

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© Copyright 2007 by the author, Donald W. Jackson.

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TRANSGENDER RIGHTS

by Paisley Currah, Richard M. Juang, and Shannon Price Minter (eds). Minnesota: University of Minnesota Press, 2006. 400pp. Hardcover $60.00 ISBN: 0816643113. Paper $19.95. ISBN: 0816643121.

Reviewed by Elizabeth Loeb, Institute for Law and Society, New York University. Email: Elizabeth.Loeb [at] alumni.brown.edu.

pp.216-220

As a student of queer theory and as an activist within transgender communities in the mid 1990s, I was star-struck by the work of Leslie Feinberg, Riki Wilchins, and Kate Bornstein. While these names might not be familiar to the wider political science audience, to me, they are the names of mentors and teachers. After years of being treated as medical, social, and historical curiosities, transgendered scholars such as Feinberg, Wilchins, and Bornstein spent the mid-late 1990s publishing their own creative academic works – works that considered transgender lives and experiences from an explicit and positive transgendered perspective. (Bornstein 1995, Feinberg 1996, Wilchins 1997). Ten years later, people of transgender experience have organized into a strong and visible social movement, winning extraordinary gains towards recognition of the civil and human rights that they demand.

And yet, violence and discrimination against people of transgender experience persists at every level of social, legal, and political life in the US (Currah, Juang, and Minter 2006). What compromises do people of transgender experience make when they supplicate for rights within a legal system that insists on assigning a fixed and binary sex at birth (Greenberg 2006)? How might people of transgender experience mobilize legal institutions and strategies in order to open spaces for gender self-determination (Spade 2006)? Should people of transgender experience continue to seek protection under a civil rights regime? Under a human rights regime (Thomas 2006)? Under existing disability law (Levi and Klein 2006)? Under existing sex-discrimination law (Broadus 2006)? How has US law changed in the past twenty years with regard to the rights of people of transgender experience, and what legal strategies should we mobilize over the next twenty years?

With TRANSGNDER RIGHTS, Paisely Currah, Richard M. Juang, and Shannon Price Minter have edited a complex, coherent, and necessary collection of articles that navigates these questions with great agility. Bringing together a group of highly respected and well-known lawyers, academics, and advocates who work within transgender communities, the collection serves as a snapshot in time of the analysis offered by a movement’s leaders on that movement’s future.

Thematically, the collection organizes around the limits and possibilities of rights as a political, legal, and social strategy for people of transgender experience. Though the collection does not answer all of its own musings, it does provide sophisticated and passionate insight into the legal politics [*217] of transgender experience in the contemporary US and into the politics of rights more broadly – insights that will be useful to political scientists, lawyers, activists and queer theorists alike – whether or not the reader already has an interest in transgender issues.

TRANSGENDER RIGHTS consists of three sections: Law, History, and Politics. Although the articles in each section stand alone as discreet interventions, the collection as a whole offers a connected analysis of rights discourse in relation to transgender communities. While the Law and History sections provide background, context, and explanation, the Politics section expands into a more theoretical and critical mode. In the Politics essays, contributors probe how rights discourses are effected by the intersectionality of transgender experience with structures of race and class in the US, and how an investment in rights as a strategy correlates with arguments concerning the ability of law to shape cultural acceptance. More pointedly, the authors in the Politics section challenge the desirability of a rights-based approach by pointing out the structural subordinations of racialized experience and wealth distribution that are often reproduced or devastatingly ignored when movements turn toward rights-based frameworks, strategies, and discourses as moorings of liberation (Spade 2006).

If TRANSGENDER RIGHTS has a weakness, it comes from the separation between the assumptions mobilized in the Law and History sections, and the critiques that are begun in the Politics section. At the same time, this separation might make the collection all the more useful to readers as an artifact of a living, difficult conversation among invested actors. As the editors explain in the Introduction, the project of the book is twofold: 1) to “foreground[] the political concerns and efforts of trans people” so as to “consider[] the well-being of trans people as an end in itself”; and 2) to “reflect the current state of the transgender movement and of civil rights activism more generally.” At the same time, the editors acknowledge that the essays in the collection tend to privilege a liberal, individualist, and humanist perspective. In response to critiques of this sensibility, the editors acknowledge that, although “it is not a sufficient political agenda . . . [f]or the moment, it is a necessary one.” The essays collected in TRANSGENDER RIGHTS demonstrate the reality of that necessity, and by acknowledging the tensions and failures embedded in it, the editors and contributors bring an unusual degree of intellectual depth to the landscape that they travel.

For example, in his individual contribution, Paisley Currah describes “transgender” as an umbrella term for what has become coherent as a social movement despite its differences and diversities. While this statement would draw controversy as essentialist or homogenizing from many trans theorists (Nestle, Howell, and Wilchins 2002), Currah explains that his formulation lays legible ground from which to make demands for the expansion of gender as a social and legal category, and for the legal protections of diverse gender [*218] expression and gender identities (Butler 2004).

By excavating both the facts and jurisprudence of recent legal cases involving people of transgender experience, Currah argues that rather than fixing “transgender” as a static new category or reified protected class, rights-based transgender advocacy has instead expanded meaning of gender and sex toward a spectrum of non-conforming identities, bodies, and practices. Bringing his argument back to the premise that “transgender” can describe a “coherent political identity,” Currah explains that TRANSGENDER RIGHTS is about the actuality of that political identity as it functions in legal and political activism, and he suggests that by strategically deploying “transgender” as a legible political identity, activists can continue to expand the legal meaning of gender and sex. In maintaining this focus, Currah hopes to undermine people of transgender experience as passive subjects of knowledge by scholarship that seeks clinical or anthropological understanding of who trans people are or “why we exist.”

Unfortunately, Currah does not fully elaborate on the connection between legal change and social or cultural change in his reading of a rights-based strategy. As many authors, including Currah, powerfully describe in TRANSGNEDER RIGHTS, people of transgender experience face intense violence and discrimination, even in jurisdictions that confer broad legal protections and recognitions for gender expressions and identities (also see the Juang chapter). Without a full treatment of that simultaneity, the disconnect between legal recognition and social acceptance that Currah traces puts into question the limits of the work that rights can accomplish as a tool for social change.

The coexistence of social violence and legal protections leads to one of the more provocative themes of TRANSGENDER RIGHTS as a collection, that of the value of human rights as an emerging rights model. Even as noted legal scholar, critical race theorist, and queer theorist, Kendall Thomas, offers a stunning deconstruction of human rights in the collection’s epilogue, many of the authors argue that law can play a unique role in recognizing and affirming the humanity of transgender experiences, a recognition that will flow from the legal requirements of the workplace and public accommodations and into meaningful social and cultural change. Many of the collection’s contributors discuss the legal conception of human rights as a discourse that is uniquely positioned to recognize meaningfully the self-determination and autonomy of all people to determine their gender identity and expressions, thus shifting the notion of “transgender” from a minority label to a universal condition (Sedgwick 1991).

Contributors Jennifer Levi and Bennet Klein offer another take on this tangle by advocating the embrace of a disability rights model. In one of the collection’s most prominent interventions, Levi and Klein reject the consensus from within transgender advocacy that legal protections should be sought under [*219] disability law, a maxim developed on the assumption that people of transgender experience degrade or demean themselves by defining themselves as disabled. Levi and Klein expose the prejudiced and ableist premises that underlie the anti-disability view by refusing to conflate degraded within disabled, and by explaining that the disability rights movement has demanded and won laws that validate the dignity of difference by recognizing the environment and social world as the problem to be fixed.

As Klein and Levi duly note, Federal disability law explicitly excludes transgender experience from its protection, although state law does not. Klein and Levi fail to show, however, how the three-prong test used by most states to adjudicate rights claims brought under the disability framework fully applies to the diversity and range of transgender experience – much of which is not physical. Levi and Klein acknowledge that a disability framework would not be appropriate if it requires that all people of transgender experience prove that their experience constitutes a medically diagnosable illness. Yet, while Levi and Klein claim that state disability law does not require the peoples of transgender experience submit to a medical diagnosis, they are not fully persuasive in their reading of the available jurisprudence.

In order to consider fully the contribution of TRANSGENDER RIGHTS to the wide filed, it should be noted, as it many times has been, that critical race theory scholars have long struggled with deconstructionists and critical legal theorists over the value of rights in general. Theorists such as Wendy Brown have argued that juridical rights, as applied to raced, gendered, and sexed subjects, are only granted through a narrative of equality that, in actuality, reproduces structures of group-based inequality (Brown 1995). Brown shows how US courts require a subject to present the nature of its social and political being as inherently injured, inherently less than equal. Thus, Brown explains, the act of seeking rights, of submitting to the adjudication through which rights are distributed, reproduces and ontologically cements the intractability of the very inequality and injury that these rights intend to address (Brown 1995).

In contrast, critical race theorists, such as Patricia Williams, have argued that political and social movements for racial justice do not have the luxury of a theoretical and philosophical critique of rights as just another hammer in the master’s toolbox. As Professor Williams wrote: “This country’s worst historical moments have not been attributable to rights assertion but to a failure of rights commitment. From this perspective, the problem with rights discourse is not that the discourse is itself constricting but that it exists in a constricted referential universe. The body of private laws epitomized by contract, including slave contract, is problematic because it denies the object of contract any right at all” (Williams 1991).

While TRANSGENDER RIGHTS might embrace the perspective articulated by Williams, it does jettison the urgency of [*220] the critique mounted by Brown. The beauty of this collection is that the reader does not have to choose between truths. The authors gravitate towards a human rights model, because by articulating gender determination as a universal, human attribute, a human rights framework enables “transgender” to exist as the temporary name for an identity politics movement that seeks dissolution of the very category under which it is organized.” While the editors and contributors of TRANSGNDER RIGHTS deeply honor the meaning and specificity of transgender as a named experience, they demand legal conditions whereby gender and sex can be chosen without coercion or punishment, rather than received as binary and categorical enforcements.

REFERENCES:
Bornstein, Kate. 1995. GENDER OUTLAW: ON MEN, WOMEN, AND THE REST OF US. New York: Vintage Books.

Brown, Wendy. 1995. STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY. Princeton: Princeton University Press.

Butler, Judith. 2004. UNDOING GENDER. New York: Routledge.

Feinberg, Leslie. 1996. TRANSGENDER WARRIORS: MAKING HISTORY FROM JOAN OF ARC TO RUPAUL. Boston: Beacon Press.

Howell, Clare, Nestle, Joan, and Wilchins, Riki. (eds). 2002. GENDERQUEER: VOICES BEYOND THE SEXUAL BINARY. New York: Alyson Books.

Sedgwick, Eve Kosofsky. 1991. EPISTEMOLOGY OF THE CLOSET. Los Angeles: University of California Press.

Wilchins, Riki Anne. 1997. READ MY LIPS: SEXUAL SUBVERSION AND THE END OF GENDER. New York: Firebrand Press.

Williams, Patricia J. 1991. THE ALCHEMY OF RACE AND RIGHTS: DIARY OF A LAW PROFESSOR. Cambridge: Harvard University Press.

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© Copyright 2007 by the author, Elizabeth Loeb.

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THE STATE OF PLAY: LAW, GAMES, AND VIRTUAL WORLDS

by Jack M. Balkin and Beth Simone Noveck (eds). New York and London: New York University Press, 2006. 320pp. Cloth. $70.00. ISBN: 081479971X. Paper. $24.00. ISBN: 0814799728.

Reviewed by Debora Halbert, Department of History and Political Science, Otterbein College. Email: Dhalbert [at] otterbein.edu.

pp.212-215

THE STATE OF PLAY, edited by Jack Balkin and Beth Simone Noveck, is a collection of essays emerging from the first annual State of Play Conference held at New York Law School in 2003. Given that law in virtual worlds is a relatively new field, this book begins a conversation that will continue for some time to come. THE STATE OF PLAY brings together many of the important thinkers on virtual worlds, including game designers, law professors, and journalists. It develops the key issues relevant to a virtual future, specifically the legal implications of newly emerging virtual worlds. The essays define the legal issues that may surface when one begins to take virtual worlds seriously as spaces for important social interaction, instead of seeing them simply as sites for on-line play. While some of the essays feel introductory and undeveloped, on balance the book provides interesting insights into the intersection between the law and virtual worlds.

The book is divided into four sections besides the introduction (Part I), each dealing thematically with some aspect of law in virtual worlds. Part II describes the tensions between game designers and game players over the ‘rights’ of players in a gaming world. Game designers generally seek to limit rights and retain control, while game players seek to enhance their rights within the game. Although not discussed in the essays published here, the emerging discourse over rights could make for an interesting examination of rights talk and how it evolves in relation to the law. Part III looks at property issues in virtual worlds with a focus on theft, intellectual property, and who should own property in virtual worlds. Again, the tension between game developers and game players is evident in arguments for property ownership.

In this section, Yochai Benkler’s essay (Chapter 11) is a refreshing response to the assumed rights-based, property wielding narrative present in many of the others. Instead of assuming property rights in virtual worlds, Benkler emphasizes that we are able to determine the social relations these games structure, including property relations. Benkler wants to demonstrate that the collaborative aspects of virtual worlds are essential and can become examples of innovation absent intellectual property rights (p.182). In doing so, he seeks to bypass the legal questions raised by Cory Ondrejka (Chapter 10) who, while arguing for the creation of a metaverse based upon user design and distributed networks, deliberates over who owns what in virtual worlds (pp.158-179). Both chapters are good, but Benkler puts his finger on what is most radical about the possibilities of virtual worlds. [*213]

Privacy is important to consider in virtual worlds, and this issue is addressed in Section IV. Tracy Spaight’s chapter (Chapter 12), “Who Killed Miss Norway?” raises the age-old question of identity and authenticity on the internet, while at the same time providing the most example-based analysis in the book. However, the chapter does not theorize about privacy issues, except to make the claim that on the internet, personal identity is easy to disguise. Susan Crawford (Chapter 13) argues that because our virtual identities will someday be as important as our ‘real’ identities, we need to think about the evolution of privacy on-line (p.198). Her essay introduces some interesting concepts regarding social behavior – that people tend to form groups voluntarily of around 150 people (p.203) and that we need to think about the implication of a future privatized internet. However, this chapter also does not really address issues of privacy as defined by law, but instead focuses on the construction of on-line identity. Tal Zarsky’s essay (Chapter 14) is much more topical to the privacy issue and does a good job of outlining the ultimate privacy concerns. Section IV as a whole avoids deep theorizing about privacy issues, and, like other parts of the book, one can say certain issues have been defined, but not well developed.

The final section, Part V looks at the links between virtual worlds and real-world issues. David R. Johnson (Chapter 16) discusses his efforts to develop visual legal rules that he titles “graphical groupware” (p.247). I would have liked to see an example in this chapter to help me (ironically) visualize his argument. Beth Simone Noveck (Chapter 17) deals with the possibilities of virtual politics and what she calls an “electronic civil society” (p.259). Noveck is already designing a future virtual democratic world that will take the avatar and turn it into a democratic citizen. Noveck helps imagine ways in which virtual spaces can become political and civic spaces, perhaps the best example of the link between the virtual and the real, as well as an interesting way to end the book.

When looking at THE STATE OF PLAY as a whole, there seems to be a divide between authors who have built and used virtual environments and those who are theorizing about the legal implications of these environments, but have most likely not participated actively in a virtual environment. Both sets of authors tend to be abstract in their approach – game designers because their interests lie in the structure of the gaming environment, and legal scholars because their interests lie in the possible legal scenarios that can evolve. As a result, very few of the essays draw from examples generated from conflict in virtual environments and instead theorize about these environments in the abstract. I would have enjoyed seeing more examples emanating from the actual use of virtual worlds. Absent these hands-on scenarios, the book as a whole feels somewhat removed from the worlds they are addressing. A discussion, for example, of the relevance of the tort of public disclosure of private facts should be accompanied by an example where this emerged as a problem in the virtual world. If law is so important in these spaces, then it seems [*214] there should already be cases existing where legal problems have emerged. However, if these cases exist, few authors use them to ground the book in the reality of the virtual environment.

The availability of examples is what makes Julian Dibbell’s piece so thought provoking. Dibbell discusses the impact of end user license agreements (EULAs) on the nature of the game by using the case BLACK SNOW v. MYTHIC. He discusses the implications of developing ‘gold farms’ to produce game money using sweat shop labor in the ‘real’ world. Not only did this chapter make me see value in the EULA, but it also provides insight into the types of controversies that are emerging in virtual worlds instead of the potential controversies that might exist if all manner of law were to be translated to these virtual worlds.

Dibbell’s piece also highlights one of the more interesting themes that emerged in the book as a whole – the role of the EULA as a social contract. The language of social contracts appears in several of the essays. Raph Koster, for example, claims in Chapter 4 that avatars form a social contract in virtual worlds, but ultimately the worlds themselves are governed by a ‘higher power’ (p.57). Jack Balkin notes in Chapter 6 that the EULA is the social contract of the virtual world (p.87). In most essays, it is assumed that entering a gaming environment requires players to adhere to the rules associated with the game. However, the use of social contract language in these essays strays from what I had always assumed was an underlying political ideology of internet-savvy programmers – a rational-based libertarianism which values individual autonomy and self-government.

Instead of providing the conceptual framework for rational individuals to create the conditions of self-government (social contract theory via Locke), the social contract associated with virtual worlds seems to require a ‘love it or leave it’ position where adherence to the rules is mandatory, but the ability to affect the rules is limited (social contract via Hobbes). Game owners seem to advocate a Hobbesian social contract, while game players seek to create a Lockean social contract. Dibbell offers the most sophisticated understanding of social contract theory and a possible Lockean path out of the divide when he argues that changes made to the EULA based upon customer feedback create the conditions of a (minimal) democratic politics (pp.143-143). While the essays do not discuss the political nature of these gaming environments in depth, it is clear that more analysis of the EULA as social contract is warranted.

The prevailing language of a social contract is a first interesting theme that emerges from the book. A second theme deals with the future implications of virtual worlds. Bartle argues in Chapter 3 that we need to retain the space for play made possible by these worlds and keep the division between the game world and the real world intact (p.49). However, other authors see these game worlds as precursors to future on-line life based upon the metaverse envisioned in Neal Stephenson’s SNOW CRASH. Cory Ondrejka, for example, claims that the possibilities of users “to create in a [*215] shared world is only just becoming technically feasible” (p.166). For Koster (Chapter 4), it is the future possibilities of an on-line world where information is free that provides the justification for a declaration of rights for avatars (p.66). A future world where the data available are bank records and credit reports instead of game-related information gives the notion of avatar rights meaning that is otherwise lacking (pp.66-67). Noveck’s work, as mentioned above, is already moving the virtual world towards its possible political future by actively envisioning and creating the on-line space for virtual citizenship.

The State of Play conference is now in its fourth year, and its issues have become international since the first conference. This book sets the stage for a more sophisticated discussion of virtual legal issues in the future, but generally provides breadth, not depth. I would imagine that if it were to be published, the STATE OF PLAY 2.0, which would build upon subsequent conferences, would dig beneath the surface and more fully elaborate on the complexities emerging as law enters virtual worlds. In the interterm, much can be learned about law and virtual worlds by reading this book.

REFERENCES:
Stephenson, Neal. 2000. SNOW CRASH. New York: Bantam Spectra.

CASE REFERENCE:
BLACKSNOW INTERACTIVE v. MYTHIC ENTERTAINMENT INC., No. 02-00112 (C.D. CA, 2002).

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© Copyright 2007 by the author, Debora Halbert.

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THE STATE OF THE LAW IN THE SOUTH CAUCASUS

by Christopher P.M. Waters (ed). Hampshire; Palgrave Macmillan 2005. 240pp. Hardcover. £58.00/$79.95. ISBN: 1403936560.

Reviewed by Sudhir Krishnaswamy, National Law School Of India University, Bangalore, India. Email: krishnaswamysudhir [at] gmail.com.

pp.208-211

The Rule of Law discourse has come to dominate the legal reform agenda in developing and transitional countries since the early 1990s. This discourse has been employed by international development agencies to promote a variant of the ‘law and development’ agenda, as well as international financial institutions which have developed complex quantitative measures of the rule of law and governance to chart their policy interventions in developing or post-revolutionary states. Christopher Waters has edited a collection of articles which makes an important contribution to this blossoming field of literature by examining the ‘state of law’ in the three South Caucasian countries: Armenia, Azerbaijan and Georgia. The use of the phrase ‘state of law’ in the title is misleading in so far as the organizing idea for this collection of articles is the definition of the ‘rule of law’ by Thomas Carothers, a central issue to which we shall return later in this review.

The book seeks to address three important questions: first, why is the rule of law so important to these countries? Secondly, why is it so difficult to establish the rule of law in these countries, and thirdly, to identify an agenda for action to promote the rule of law in the South Caucasus. The responses to this ambitious research agenda are organized into four parts: the Role of the State, Lawyering, Regulation and Vulnerable Groups and the Law. Though it is difficult for a book of this length to attempt a comprehensive response to the questions set out above, the absence of a section on dispute resolution processes both in and out of formal courts stands out. The introduction astutely maps out the terrain to be explored and briefly introduces the individual contributions and their relationship to the broader themes explored in the book. The writing style adopted by the contributors is clear and consistent, and this well referenced compilation has been suitably edited to make for an eminently readable and useful book.

However, at the outset two methodological concerns deserve special attention. First, the articles adopt heterogeneous disciplinary approaches to investigate the state of law in the region. Maria Guledani’s account of the ‘The Legal Basis for Business in Georgia’ and to a lesser extent Karen Andreasyan’s ‘Regulation and Reform in the Telecommunications’ are doctrinal in approach and focus on ‘law in the books.’ By contrast, Christoph H Stefes’ chapter on ‘Clash of Institutions: Clientelism and Corruption vs Rule of Law’ ignores doctrinal law and uses political theory and an understanding of political history of the region to analyze the impact of systemic corruption on rule of law in these states. Editor Christopher [*209] Waters’ contribution to this collection presents a sophisticated and nuanced account of the ‘Rule of Law in Secessionist States’ relying extensively on interviews with local actors, including lawyers, judges, law-makers and citizens in South Ossetia and Karabakh. Fortunately this disciplinary heterogeneity makes for a richer and more nuanced account of the legal developments in this part of the world, though a reader may choose to focus only on those disciplinary approaches she finds compelling.

The second methodological concern is the uneven comparative approach adopted by the contributors. A few authors are concerned with all three countries, while most authors have chosen to focus on only one or two countries. Notably, the articles which engage with all three countries develop the most rigorous analytical framework and offer lessons in legal reform useful to the general reader who is not concerned only with law in the South Caucasus. Claude Zullo’s incisive analysis of the contribution of the legal profession to the transition process in these countries is the best illustration of the potential of the comparative method. The presentation in this Chapter is organized not around individual jurisdictions but rather four analytical categories: namely, an overview of the legal profession, the status of the legal profession, legal aid and professional standards. By organizing the discussion in this fashion, Zullo is able to illustrate the common problems faced by these countries as a result of their shared legal and political histories, as well as mark out the decisively different trajectories that these countries have taken in the transition phase.

Karen Andreasyan’s comparative analysis of telecom deregulation in the region displays similar qualities. The political economy analysis of the legal regimes and processes of privatization and regulation in the three countries suggests that successful legal reform is not achieved by importing the right mix of substantive laws and institutional designs. While the author unpacks the state institutional environment and economic structure of the market, he surprisingly pays little to attention to the role of international development and financial institutions, like the World Bank and International Monetary Fund, who have pushed a monolithic telecom reform model in other parts of the world. It is unclear if these institutions or any others were central to the reform trajectories in these countries. In any event, despite this gap in the institutional analysis of telecom reform, the chapter persuades the reader to the conclusion that unless ‘rule of law’ advocates pay attention to the social, economic and political environments in which legal reform programmes are initiated, their reform prescriptions will be inadequate and likely to fail. Unfortunately many of the other contributors to this book have focused on specific jurisdictions which prevent them from exploiting the analytical potential of the comparative method.

We conclude this review by returning to the central organizing idea for this collection – Thomas Carothers’ definition of the ‘rule of law.’ Christopher Waters’ excellent [*210] introduction to this book engages the debate on the contending versions of the ‘rule of law’ paying attention to lawyers’ and political scientists’ version and concludes that Carothers’ functional definition is best suited to the purposes at hand. Carothers’ definition proposes a legal and institutional framework which possesses certain qualities of effectiveness and fairness to be the essential ingredients of the ‘rule of law.’ Many of the contributing authors reference and respond to Carothers’ characterization of the ‘rule of law,’ thereby turning it into the central motif of this book.

The reliance on Carothers’ characterization of the ‘rule of law’ in this book results in two significant inadequacies. First, it ignores the relationship between legal and non-legal features in a society. It suggests that legal reform proceeds autonomously and that reform projects need to focus on laws, judges, lawyers and law-makers. The best contributions to this book persuade the reader to look for explanations for legal reform that go beyond the legal realm and take culture and society seriously. Sara Anjargolian’s chapter on ‘Armenia’s Women in Transition’ ignores the cultural and religious context in which debates about legal reform to empower women take place. The lack of attention to these non-legal factors keeps her from developing useful explanations for the uneven process of legal change in this area. By adopting a perspective on the ‘rule of law’ which explores the relationship between the legal and non-legal realms more comprehensively, this book would have generated further interest.

Secondly, the book does not seriously question the political and cultural specificities of the conceptual discourse of the ‘rule of law’ and treats it as a universal given. ‘Rule of law’ discourse is challenged in some Asian jurisdictions as a cultural imposition which is not consistent with the local cultural milieu, and in other jurisdictions as a Western ideological prop in aid of global capital. It is unclear whether these resistances and counter-strategies to the ‘rule of law’ discourse resonate with the political rhetoric and practice in the South Caucasus, and it is unlikely that these concerns will be investigated seriously unless we abandon Carothers’ perspective on the ‘rule of law’ as a central motif for the book.

The methodological and theoretical problems considered above do not detract in any way from what is an informative and well written book. When one considers that this is the first book in English on this topic, we become acutely aware that, in order to develop a theoretical engagement with rule of law discourse in the South Caucasus, we must first map its general contours. This is a task successfully accomplished by THE STATE OF THE LAW IN THE SOUTH CAUCASUS, and it would be essential reading for anyone interested in rule of law discourse in general or the legal reform in post-revolutionary societies in particular. [*211]

REFERENCES:
Carothers, Thomas. 2006. PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE. New York: Carnegie.

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© Copyright 2007 by the author, Sudhir Krishnaswamy.

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NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY

by Richard A. Posner. New York: Oxford University Press, 2006. 208pp. Cloth. $18.95. ISBN: 0195304276.

Reviewed by Mathieu Deflem, Department of Sociology, University of South Carolina.
Email: deflem [at] sc.edu.

pp.205-207

According to (liberal) economists, the world is very simple. Everything is about weighing costs and benefits. Applied to the field of law, Richard Posner writes about a variety of legal and related social issues from this particular lens. Before we join the chorus of those who embrace him for this feat alone, we would be wise to read some of his work and analyze it for what it intends to do and what it accomplishes in the process.

In this short book, Richard Posner outlines the results of one of his weighing exercises, more specifically the construction of a balance that he thinks ought to exist between the protection of civil liberties, on the one hand, and the need for safety and security, on the other. Posner argues that this balancing act is particularly difficult, yet all the more necessary, in these days and years since the events of September 11, 2001. Developing his argument, Posner is especially critical of those who seek to protect civil liberties at all costs and who have no apparent concern for the objectives of government conduct aimed at providing public safety and no knowledge of the best ways in which the ideals of the US Constitution can be protected.

Posner begins by arguing that the center of gravity of constitutional law in the United States is not the US Constitution, but the decision-making process of the US Supreme Court. The justices of the Court, Posner maintains, are driven by considerations about the practical consequences of their actions rather than legal logic. Arguing against a radical civil libertarian viewpoint, Posner formulates an approach that recognizes the relative rights of citizens and powers of all branches of government. His main focus is on constitutional rights that relate intimately to recently instituted counter-terrorist measures that involve the denial of the right to habeas corpus, the implementation of special investigative methods (interception of communications, monitoring of free speech, use of torture), and the establishment of military tribunals to try suspected terrorists. Posner suggests that such special measures can be required because terrorism should be conceived a sui generis reality that is neither crime nor war. Therefore, Posner contends, terrorist suspects cannot lay claim to the same constitutional protections that are granted to criminal suspects.

Posner ends this book with some speculations about privacy rights. He argues, not surprisingly, that mining activities organized by government agencies may be a critical weapon in the fight against terrorism. In fact, under exceptional circumstances, Posner maintains, it would even be permissible to recognize government conduct as [*206] being at once illegal yet also morally necessary.

It is impossible to review this book outside the context of its foundations in the law and economics approach and the merits and limitations that are associated with that perspective. In my mind, it is a mere consequence of the law and economics approach and, more specifically, Posner’s blind obedience to the perspective that this book is high on speculation and low on analysis. From the very beginning, Posner resorts to unasserted statements, such as when he claims that justices (and judges) are in their decisions driven by practical concerns rather than logic. If only it were so! Rather, justices are driven by legal logic as it exists, that is, by their varied and particularistic versions of multiple legal logics. All legal logic is ideologically colored, but no justice (or judge) is a social scientist, and it would be quite foolish and ultimately dangerous to think otherwise.

A judge of the US Seventh Circuit Court of Appeals, Posner employs a legalistic understanding of the law that is largely devoid of social science insights. In Posner’s mind, it appears, the law exists beside society, not squarely in it. Thus, he misses the point that the Supreme Court does not make constitutional law by interpretation of the Constitution as such, but by an interpretation that is always bound to legislation and policy. As such alone, judge-made law is always and necessarily embedded in a political context, where the legislative and executive branches are at work. Therefore, also, it can be argued that it is not the Constitution that changes during periods of intense societal disturbance or emergency situations, but the political and legislative manner in which such conditions are responded to and given meaning within a constitutional frame. The important changes in constitutional law do not take place at the level of judicial review but in matters of legislation initiated in the political world and the policies and practices that are planned and instituted by a variety of government and private agencies at the organizational level. Thus, we need analysis of the manifold aspects of these institutions and practices, not interpretation of the Constitution.

It can easily be agreed that civil libertarians have focused too exclusively on the negative side of the equation concerning citizen rights and societal needs, seeking to protect citizens and inhabitants from unwarranted government intrusion without, positively, contributing to setting the contours of what type of government action can be legitimate and necessary in view of ongoing issues related to public security. But that is also not their job. Defensive their actions may be, they are not meant to supplant policy, instead suggesting only which route policy cannot take and that another direction is called for when rights are violated.

Posner also argues against the most radically alternative interpretation, as it is defended by national security hawks, that terrorist suspects have virtually no rights, especially when they are not US citizens. Again Posner suggests, the right answer lies somewhere in between. Posner knows that his is not a book about how to respond to terrorism. But [*207] even as a book on the constitutional limits to government conduct against terrorism, it has very little to offer beyond the argument that there has to be some kind of a balance on the basis of stated considerations over individual rights and social necessities.

Posner’s work is oriented at contributing to build legal and public policy in US counter-terrorism efforts, not at an analysis of those efforts from a social science perspective. Posner’s work is that of a legal professional, written for the objectives of law itself. This book is not the product of social science scholarship —and perhaps it also does not need to be that, although the law and economics approach is at times mistakenly understood as such. But evidence we do not get from Posner. Instead there are platitudes (“a Constitution that will not bend will break” p.1). And in place of conceptually sound propositions or statements informed by a theoretical outlook, we get simple slogans couched in populist terms (“Our terrorist enemies. . . ; our vigorous campaign against al-Qaeda” p.2; “Privacy is the terrorist’s best friend” p.143). As a result, much of what Posner says is common sense, is rather bad common sense. What to say of such statements as “the external enemies whom Americans mainly fear are islamist terrorists. And with good reason” (p.5). Whose reason? Reification abound in this book. “They did us terrible harm on September 11, 2001” (p.5). They? Us? “We are officially at war with al-Qaeda” (p.102).

In the end, this book merely condones certain government activities against terrorism within unspecified limits. Besides not being tremendously original, Posner always assumes that we are dealing with terrorists or advocates of terrorist activities who pose a distinct threat to the safety and security of citizens. Yet, one of the key normative problems concerning contemporary security practices is precisely the fact that it is not always clear when and whether the net of counter-terrorism is cast too wide with a mesh too thin. Relatedly, it can be rightly argued, indeed, that terrorism is neither crime nor war but a unique reality. However, that need not imply that it is something in between crime and war. Should that be the case, any speculation on terrorism and counter-terrorism in terms of either military operations or criminal justice practices is misguided from the start.

There is, of course, no way to understate the tremendous stature of Richard Posner as a public intellectual whose prolific writings have contributed to the American discourse on important matters of public policy. But there is reason to be concerned that the law and economics approach can ultimately not do much more than provide some balanced attacks and moderate proposals. Yet, our times are radical and pose radical questions that are in need of radical answers.

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© Copyright 2007 by the author, Mathieu Deflem.

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PRINCIPLES OF CONSTITUTIONAL DESIGN

by Donald S. Lutz. New York and Cambridge: Cambridge University Press, 2006. 261pp. Hardback. $80.00/£48.00. ISBN: 0521861683. eBook format. $64.00. ISBN: 9780511247958.

Reviewed by Wade Mansell, Kent Law School, University of Kent, UK. Email: W.M.Mansell [at] kent.ac.uk.

pp.201-204

Coming as I do from a legal background, my expectations of books about constitutions, their drafting and their interpretation, may have been excessively narrow. The uneasy relationships between law and political science, and international law and international relations is manifest, if implicitly so, in the book under review. In some ways for a lawyer PRINCIPLES OF CONSTITUTIONAL DESIGN, by Donald S. Lutz, is a revelation. What it does with admirable clarity and lucidity is examine the history of constitutional theories and theorists, and the problems that have exercised them. If there remains little new to say of the works of Aristotle, Montesquieu, Bodin, Hobbes, Rousseau and Locke, nevertheless their identification of the problems of both the allocation and also the limitation of allocated political power, and their suggestions for resolving them continue to resonate. The book is intended for those concerned with the drafting of constitutions, but it is certainly not concerned, except in the broadest of terms with the content of constitutions. Rather it attempts to isolate the many variables in peoples and government that dictate particular considerations in constitutional drafting. The important point here is that constitutional drafting must be tailored to particularities. Anyone who believes that a constitution is a constitution is a constitution (as in Gertrude Stein’s rose) will be quickly and correctly disabused. In Lutz’s own prefatory words: “A fundamental fact about constitutional design is that there is no optimal model, no clear set of rules for matching a people and their situation with a set of institutions, and no inherently stable or superior constitutional system” (p.ix).

We do however, as he observes, have considerable empirical evidence, not always consistent, of the operation and ‘success’ (however defined) of different constitutional arrangements in different social, political and national settings. This book is intentionally not a study of this evidence but rather an inquiry into the sorts of facts and factors that reflection suggests are germane when drafting choices are to be made.

Constitutions are of course a singular phenomenon. They are the means by which power within a state or society is allocated and legitimated until such time as they are amended or replaced. In many societies, not least in the USA, it is the voice of the ancestors institutionalised and to some extent ossified. One of the effects of constitutions is to remove from day to day democratic discussion, topics such as to whom power is allocated (and how it is to be separated), how this is to be ascertained, and the limits to which it is subject. When this is appreciated, it becomes clear that the relationship [*202] between a constitution and democracy is not a straightforward one, especially if democracy is understood as rule in accordance with the wishes of the majority of constituents. Constitutions are very often intended to thwart just such wishes and almost invariably this reflects the intentions of an elite not fully trusting the instincts of the hoi polloi, otherwise known as the common people, nor yet the vicissitudes of the future. Nevertheless the great advantage of a constitution is that, if accepted, it takes out of the political world the principles of government and gives them something approaching objective neutrality. Yet here is a paradox. A constitution, if it is to remain in force, requires the continuing assent of the people even while it limits the choices open to them.

On the other hand, if a constitution fails to convince its constituency of its objectivity, its existence may be brief, as we have seen in many constitutions ‘gifted’ by colonial powers upon decolonisation, or drafted to suit the needs of individual tyrants. As Lutz pertinently observes (p.185), the general expectation that government should rest on popular consent is a genie that can not easily be returned to the lantern. Thus a successful constitution requires popular acceptance of power limitations.

Popular sovereignty, however, implies that the people are limited in some way as the ultimate force, which in turn almost always implies a constitution to encode such limits. Popular ratification of the constitution then amounts to the initial self-limiting that defines a sovereign. (p.185)

Central to Lutz’s argument that successful constitutions must necessarily vary from society to society is the recognition that such acceptance, or at least acquiescence, will be forthcoming only where constitutional design is consistent with the ideological history of the people to whom it is directed. In other words, such a constitution must reflect the way in which the world is perceived where it is to operate. Both religion and the ‘history of experience’ of governance will contribute to such a world view. His ‘general principles of constitutional design’ (pp.218-220) all follow from this first premise, and if at the present time the premise seems obvious, it is important to remember just how often in an era of decolonisation it was ignored. For Lutz, constitutional design is very much the art of the possible, mitigating potential abuse of power as much as maximising the consent and security of the constituents.

Sensible though this undoubtedly is, my major criticism of the work is that it could (and should) have been much more grounded in experience and example. How do the ‘general principles of constitutional design’ suggest that the drafters of the Iraqi constitution, to take one contemporary modern example, might provide for an acceptable allocation of power, limits on that power, and methods by which subsequent constitutional disputes might be resolved? When one examines the text of the draft Iraqi Constitution and compares it with Lutz’s conclusions, problems with that troubled document seem patent. A demonstrably unrealistic and optimistic preamble includes the following: [*203]

We the people of Iraq, newly arisen from our disasters and looking with confidence to the future through a democratic, federal, republican system, are determined – men and women, old and young – to respect the rule of law, reject the policy of aggression, pay attention to women and their rights, the elderly and their cares, the children and their affairs, spread the culture of diversity and defuse terrorism.

The draft proceeds to assert in Article 2 that the ‘constitution guarantees the Islamic identity of the majority of the Iraqi people and the full religious rights for all individuals and the freedom of creed and religious practices.’ Worthy no doubt, but scarcely consistent with the reality of Iraq, at least as presently constituted.

But quite whether Lutz could have drafted a more effective constitution, immediately gives rise to the question of when and why effective constitutional drafting might simply be impossible because of ‘facts on the ground.’ While Lutz suggests that the drafters of constitutions must start with the lowest common denominator and the highest common factor, at least for some states these will be difficult to discover simply because of the incompatible diversity of interests of the population. In other words, successful constitution drafting requires a minimum of coherence in ideology from the people(s) it is to govern. Post-colonial Africa has given us many examples of the problems that may arise where constitutions attempt to protect minorities when the majority is unwilling to afford such protection. And outside Africa in such states as Cyprus, Burma, Yugoslavia, and Indonesia, similar difficulties quickly became apparent.

There is a danger that I am criticising Lutz for what he did not intend to do. His is a work that cogently and coherently examines the theoretical bases of constitutional design. Yet so plentiful are examples of crises of constitutionalism that it is disappointing that they are almost entirely unaddressed. This is particularly so because many of the crises seem to be variations upon a common theme, that of minority protection and the relationship of ethnic or religious minorities with majorities. It is surely crucial to try to understand what distinguishes states that are able to afford this protection and those that are unwilling to do so. It also seems important to consider the role, if any, of constitutions in this process. Certain it is that, while many of the contemporary political crises can be comprehended in terms of constitutional inadequacy – Darfur, Chechnya and Kosovo (none of which Lutz discusses) to name but three – usually constitutional explanations seem inadequate to understand the conflicts themselves.

A further omission that will probably seem surprising to lawyers at least, is any discussion of human rights and the international treaties drafted for their protection. These international obligations, particularly the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights of 1966, raise significant issues for those drafting constitutions. Indeed, it is here that it is possible to see clearly that choices concerning constitutional [*204] content are always political choices. While the South African Constitution has attempted to protect economic, social and cultural rights, the Iraqi draft Constitution chooses (as do a number of others) to guarantee private property and to commit the state to guaranteeing ‘the reforming of the Iraqi economy according to modern economic bases, in a way that ensures complete investment of its resources, diversifying its sources and encouraging and developing the private sector.’ The decision to make such a commitment to free market principles is never discussed by Lutz.

Not surprisingly given his expertise in the history of the US Constitution, the elements of that document form the core of what Lutz considers should be at the heart of a sound constitution. While his considerable erudition in this area of scholarship has defined the parameters of his book, this work is a significant contribution to the literature of constitutional theory. It is elegantly written and superbly produced, but with greater engagement with contemporary events its audience appeal would have widened greatly.

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© Copyright 2007 by the author, Wade Mansell.

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THE TWENTY-FIRST CENTURY LEFT: COGNITIONS IN THE CONSTITUTION AND WHY BUCKLEY IS WRONG

by William P. Kreml. Durham: Carolina Academic Press, 2006. 230pp. Cloth. $45.00. ISBN: 1594602514.

Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. Email: bgpeabody [at] msn.com.

pp.196-200

At the outset of this creative and provocative project, William Kreml proposes to apply an “original political theory” to the “continuing problems caused by the way political campaigns are financed in this country” (p.xiii). But, by the end of THE TWENTY-FIRST CENTURY LEFT, it is possible to untangle a more complex and ambitious agenda. Among other goals, Kreml hopes to reshape how we conceive of and discuss American politics, and give new life to the political left.

In Chapter 1, Kreml places his “new theoretical map” in the context of the “two grand schools of political philosophy” that have dominated “the last four centuries” (p. 4). Kreml describes his own thinking as both arising and divergent from “classical liberalism” and “Whole Group Equity” theories which explain our social and political condition as emerging “from mere membership” in a group, a position he associates with Marxism, feminism, and various civil rights movements (p.5). Both of these broad theoretical approaches neglect the impact of “psychological biases,” in a manner that threatens their normative promise.

In Chapter 2, Kreml attempts to enunciate his new, “cognitive” theory that will move our political philosophizing, and ultimately, our public affairs, to take greater heed of the “differentiated personality characteristics” in our citizenry. In contrast with the previously ascendant theories, Kreml’s psychological approach is based “on who we are, not what we are” (p.xv).

Kreml believes not only that this new orientation to politics has been underappreciated as an intellectual matter, but that it is playing an increasingly important role in our actual public life – an observation our leaders will ignore at their own peril. “We are at the point,” he contends, “when the subjective, that is the psychological, differentiation among significant political players has begun to supersede the objective differentiation in America’s ideological identifications” (p.90). In other words, “subjective” personality or psychology is becoming a more important driver of our salient political behavior and political thinking than “objective” factors like class, race, gender “and the like” (p.9). As evidence for this proposition, he cites, among other things, the 2000 election, “the first year in which the variable of whether or not an individual was a regular attendee of religious services, of whatever denomination, approached the social and economic standing variable as the best predictor of an American’s ideological identification, at least in the white community” (p.8). [*197]

More broadly, Kreml contends, we can only comprehend, evaluate, and reform our existing political system by appreciating the existence of varied “human psychologies and the cognitions they prefer” (p.30). In particular, Kreml thinks that undergirding much of our political life, indeed much of “Western intellectual history” (p.78), is a tension and resulting struggle between those who prefer either “analytic” or “synthetic” understanding. The analytic cognition seeks forms of knowledge in which the constituent “variables” are closely similar or of the same class (“apples and apples kinds of knowledge”), and views even “minute dissimilarities” among these variables as making them qualitatively different (p.28). Synthetic thinkers allow for more differentiation between the variables they compare.

These formulations are more than a little abstract, and Kreml’s examples do not always help us to comprehend the divergent forms of thinking he claims people gravitate towards. This deficiency considerably complicates our efforts to understand, apply, and evaluate his overall political theory.

In Chapter 3, Kreml does introduce several cases from English and American legal history in an effort to ground his arguments and illustrate “how a mutual, that is simultaneous, use of the analytic and synthetic cognitions increases what we can know” (p.35). For example, he contends that ROE v. WADE rejects a “universal, that is, singular rule on the citizenry” and instead “speaks for complexity, or for the differentiation that resides only in the synthetic cognition” (p.53). BUCKLEY v. VALEO and DRED SCOTT v. SANDFORD, in contrast, betray analytic preferences in their equation of “free speech with money” in the first instance and “a human being with money” in the second (p.159). These and other analytically based Court decisions “homogenize” two or more variables, treating them as fungible (p.45).

In Chapter 4, Kreml briefly surveys the role of analytic and synthetic frames of mind in “Western thought,” and suggests that the traditional division between “rationalist versus skeptical” thinkers has been replaced by his cognitive dichotomy (p.78).

In Chapter 5, the author further contends that contemporary American society has generally seen a triumph of the analytic frame of mind, at least among elites in and out of government. The ascendance of the analytic cognition has helped to bring about “undemocratic decentralization” (p.97) of government, with the result that we are governed by “powerful interest groups” and our governing institutions dramatically over-represent the wealthy. “The dramatic shift to the analytic cognition . . . is part of what has led to the increased and cognitively biased fragmentation of our government” (p. 96).

Kreml recoils from the “oligarchic” form of politics we now experience, defined by “over-long” campaigns driven by a narrow range of issues and a ceaseless pursuit of funding and funders (p.102). Instead, he calls for “richly embryonic political aggregations of regular citizens [*198] to have their day outside of the electoral context . . . finding contradictions here and there and embracing a synthetic cognition that will bring the orange to the apple, the synthetic form to the analytic” (p.101).

Ultimately, Kreml’s project is aimed at generating legitimacy and support for what he calls the “Natural Left” (as opposed to the “objective left”), a political movement based on a psychological orientation to politics, and with a natural sympathy towards synthetic thinking. The Natural Left will promote a new standard of equity that will reward “proportionate distributions for proportionate contributions” and a balance “among different kinds of minds and the different kinds of personalities that house such minds,” including those who strive for lives “that includes both economic and noneconomic pursuits” (p.178).

In Chapter 6, Kreml examines a number of Supreme Court cases, and the high bench’s role generally in advancing both the analytic cognition and the nation’s emergence as a purported oligarchic order (p.127). Here, BUCKLEY is the particular target of Kreml’s wrath. In Chapter 7, the author develops similar themes about the ascendance of the analytic psychology, the increasing control of the United States by a relatively small group of leaders and interests, and the centrality of BUCKLEY to these various problems. At this point, Kreml introduces the interesting claim that the body of the Constitution (that is, its first seven articles) is inherently conservative and analytic, while the Bill of Rights is fundamentally liberal and synthetic (p.150). The Bill of Rights was “clearly designed” to induce a “kind of synthetically formed aggregation of protest and participation” (p.157). When the Supreme Court comes to realize and affirm this synthetic vision, it will “provide the legal antidote to the disastrous ruling in Buckley v. Valeo” (p.157).

In Chapter 8, Kreml concludes by criticizing the presidency of Bill Clinton, largely on the grounds that Clinton favored the analytic cognition and with it, oligarchic interests (p.173). The author also underscores his belief that a Natural Left movement, committed to affirming a psychological (and synthetic) rather than objective orientation to politics will overcome a “cognitive bigotry” in American politics and promote meaningful equity amongst the citizenry (p.181).

THE TWENTY-FIRST CENTURY LEFT is ambitious and far-ranging in its commentary and critique. The author attempts to cover a tremendous amount of intellectual ground in less than 200 pages. Kreml’s title alone suggests three different themes, each of which might have prompted its own book-length treatment. And Kreml covers additional, diverse topics: in the course of his work, he reflects on his own run for president in 2000, discusses Plato’s forms, analyzes the “eighth worst nautical disaster in all of history” (p.102), and comments upon the haircut of an ancestor of John Calhoun.

While the author’s energy and creativity is admirable and, at times, rewarding, [*199] the extensive sweep of Kreml’s discussion sometimes compromises its depth and analytic rigor, leaving the reader unfocused and skeptical. Kreml has clearly thought about the many issues he presents with intelligence, innovation, and considerable attention, but his readers, still new to this argument, could stand for more shepherding and convincing.

Even if one were to accept, for example, that the “psychological” dimension of American politics is underappreciated amongst our existing intellectual paradigms, it is not entirely clear why Kreml’s analytic-synthetic divide is the most compelling way of conceiving of his so-called subjective approach. To take a more specific point of contention, is it entirely obvious that religion is subjective and psychological in the way that Kreml (somewhat cursorily) defines these terms? And why should ROE be best viewed as a decision rejecting a “universal rule” and instead giving play to “complexity” and “differentiation?” Both detractors and supporters of the ruling concede that it imposed specific national standards regulating abortion access, and invalidated prior, diverse regulations (and prohibitions) across the 50 states. While Kreml asserts that BUCKLEY has had a “horrific impact” on American politics, the precise contours of this argument are rather vague beyond his general suggestion that the decision has “privatized the American electoral system” and entrenched wealthy and powerful interests. Was the US, prior to BUCKLEY, somehow immune from these influences? Can one really conclude that legalizing restrictions on campaign expenditures would somehow erase the abiding influence of wealth on public affairs, and transform our political life (Larson 2002)?

THE TWENTY-FIRST CENTURY LEFT is a bold and, in many regards, impressive work. In striving to create a new theoretical map, Kreml sets out some novel ways in which we might rethink both our description and assessment of a wide range of political phenomena, including political behavior, jurisprudence, and the standards by which we evaluate our democratic vitality. Scholars and other political commentators have surely given insufficient attention to the role psychological factors play in both our conception of political issues and in how we might try to invigorate innovative political movements. Kreml’s emphasis on the division between analytic and synthetic cognitions is intriguing, even if it is not the only or even most important way to characterize what is absent from our discourse on US politics. In these and other ways, Kreml’s work may be of some interest to law and courts scholars, especially those with a philosophical bent.

But, on the whole, Kreml’s work appears be a case where less would be genuinely more. Isaiah Berlin once famously distinguished between “hedgehogs,” who embody a “single central vision,” and “foxes,” who eschew this grand theorizing and instead offer multiple, unconnected, and even contradictory insights. THE TWENTY-FIRST CENTURY LEFT could probably stand for a little more hedgehog, and a little [*200] less fox; a little more sustained bite, and fewer bared teeth.

REFERENCES:
Berlin, Isaiah. 1966. THE HEDGEHOG AND THE FOX: AN ESSAY ON TOLSTOY’S VIEW OF HISTORY. New York: Simon and Schuster.

Larson, Bruce. 2002. "The Futile Quest for the Ideal Congressional Campaign Finance System." In Peter Woolley and Albert Papa (eds). AMERICAN POLITICS: CORE ARGUMENT/CURRENT CONTROVERSY. Upper Saddle River. NJ: Prentice Hall.

CASE REFERENCES:
BUCKLEY v. VALEO, 424 U.S. 1 (1976).

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856).

ROE v. WADE, 410 U.S. 113 (1973).

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© Copyright 2007 by the author, Bruce Peabody.

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UNDERSTANDING AFFIRMATIVE ACTION: POLITICS, DISCRIMINATION, AND THE SEARCH FOR JUSTICE

by J. Edward Kellough. Washington, D.C.: Georgetown University Press. 2006. 200pp. Paper. $19.95. ISBN: 9781589010895.

Reviewed by Daniel Lipson, Department of Political Science, Kalamazoo College. Email: dlipson [at] kzoo.edu.

pp.191-195

Although there is no shortage of recent scholarship on affirmative action in the United States, students and practitioners of affirmative action have until now lacked a simple, clear, brief handbook. J. Edward Kellough’s UNDERSTANDING AFFIRMATIVE ACTION fills this void with a well-organized, compact, and accessible survey of the historical developments and impacts of varieties of affirmative action policy, procedures, and judicial opinions. Given that Kellough is a professor of public administration and policy, it is not surprising that the book is especially strong on affirmative action policies and procedures in government employment and contracting. This book will serve as a good resource for students, scholars, and practitioners of affirmative action. While it will be most useful as a reference for affirmative action specialists, it could also serve as a valuable book for undergraduate or graduate courses in public policy, public administration, and racial politics.

Any author who summarizes and distills a complex issue such as affirmative action into a brief book must make difficult choices about what material to leave out and what approach(es) to employ in summarizing and simplifying. In the case of UNDERSTANDING AFFIRMATIVE ACTION, Kellough draws primarily on historical institutionalism to illustrate “how the character of our political institutions helps to shape the formation of policy initiatives” (p.33). To his credit, Kellough surveys an impressive range of literatures (including sociology of law, organizational behavior, judicial politics, socio-legal studies, public opinion, public administration, presidential and congressional politics) that draw on a wide range of theoretical approaches. However, the focus on executive, legislative, and judicial actions crowds out space that could have emphasized the role of public opinion, political culture, and the social construction of race.

The book does not pay adequate attention to one of the key controversies stemming from this marriage: namely, the debate over whom affirmative action policies target. When the debate is portrayed as a clash over competing American values that either justify or preclude affirmative action, such portrayals of the “why” question sidestep the controversies surrounding the “who” question. Much of the debate over – and development of – affirmative action over its short history concerns the difficult question of how to identify who is a proper recipient of diversity-based, disadvantage-based, or anti-discrimination-based policy. Which of America’s “official minorities” – African Americans, Asian Americans, Hispanics, and/or American Indians – [*192] merit affirmative action (Skrentny 2002)? Which subgroups (e.g. Cuban Americans v. Mexican Americans v. Brazilian Americans) are and should be targeted? Should international immigrants (e.g. South Africans rather than African Americans) be targeted? And how do organizations go about determining the authenticity of applicants’ claims of group membership in one of these “official minorities,” especially given the insidious history of the “one-drop rule” and the growth of multiracial self-identification. UNDERSTANDING AFFIRMATIVE ACTION largely avoids the issues of whom affirmative action targets. But it does provide a cogent account of the developments of – and controversies surrounding – the various justifications for, and methods of, affirmative action.

While UNDERSTANDING AFFIRMATIVE ACTION surveys research in areas that are becoming increasingly important and central, such as organizational sociology, the book nonetheless largely puts forth a conventional account of affirmative action as a parity policy that is controversial for its group-based, redistributive nature. As the subtitle of the book reveals, the author views affirmative action conventionally as a policy seeking justice. While Kellough briefly incorporates innovative strands of scholarship, the book does not adequately acknowledge the challenge that innovative lines of research pose to the conventional account that the book legitimizes. Chapter 1 (Affirmative Acton: The Concept and the Controversy) puts forward a redistributive, rational choice approach, based on Lasswell’s definition of politics as ‘who gets what, when, and how’ (p.5). The chapter provides a clear and useful section on the “varieties of approaches to affirmative action” (p.6). This approach could have been bolstered by accompanying it with Skrentny’s examination of affirmative action via a cultural approach as symbolic policy through which political elites enact reforms within the perceived “boundaries of legitimacy” of American political culture (Skrentny 1996). The material, self-interested approach could be improved upon by relying on the insights of cultural approaches to politics that focus on morality and symbolic politics to better understand the development of the varieties of affirmative action.

Chapter 2 provides a good historical overview of the early history of affirmative action, particularly the role of executive authority (p.22), congressional action, and social movements (p.23). The chapter pays particular attention to the role of segregationist southern Democrats (p.34), who cut off funding of executive branch commissions (p.26). In this chapter, Kellough reviews the transformation from soft affirmative action (that is, individual-based enforcement of anti-discrimination measures) to hard affirmative action (that is, the conscious targeting of women and people of color as a way of making up for a history of racial and gender exclusion) (p.31). Chapter 3 continues the focus on the transformation from “soft” to “hard” varieties and highlights the impact of the civil rights movement. This chapter also [*193] traces the role of the Nixon, Carter, Reagan, and Bush I administrations along with the importance of the GRIGGS and WARD’S COVE Supreme Court decisions.

One weakness of this chapter is its perpetuation of the problematic myth of affirmative action as generally dividing along partisan lines. According to Kellough, “[t]he two major political parties have gradually split on the question, with Republicans now generally opposed to such programs and Democrats supportive of them, although Republicans during the Nixon years had embraced this approach” (p.52). This common popular conception of affirmative action as a battle between Democratic supporters and Republican critics has long been challenged by scholars at the level of public opinion (for example, see Sniderman 1997) and party politics (for example, see Glazer 1988). Anti-affirmative action legal activists are acutely aware that they cannot count on support from Republican lawmakers. Most recently, the conservative Republican gubernatorial candidate Dick DeVos joined many other prominent Michigan Republican lawmakers in supporting affirmative action and formally opposing Proposal 2 (which nonetheless passed by a landslide in November 2006, with 58% of voters supporting the constitutional amendment to ban affirmative action). This claim of partisan division is not entirely inaccurate, but it misses out on important trends. Few Republican lawmakers actively oppose affirmative action, and even fewer succeed in enacting bans. Neither is affirmative action coterminous with partisan identification at the mass public level.

One of the best features of Chapter 3 is the overview of ballot measures, gubernatorial proposals, and legislative proposals over the past decade. This section covers the successful bans on affirmative action in California via Proposition 209 and Washington State via Initiative 200, in addition to the One Florida initiative pushed by then-governor Jeb Bush. This section also highlights the numerous anti-affirmative action bills in state legislatures that did not pass. One small quibble with this chapter is that Kellough identifies Ward Connerly – who has spearheaded the anti-affirmative action ballot initiative drives in California, Washington state, and now Michigan – as “a prominent African American businessman” (p.53). Connerly objects to being labeled as African American. He is part African American, part Irish, and part Choctaw Indian. But he objects to the multiracial label too and has stated that he would prefer not to be labeled by others on the basis of race.

The material on the rise of diversity management is one of the strongest sections of the book. UNDERSTANDING AFFIRMATIVE ACTION uncovers the tensions surrounding the marriage of affirmative action and diversity management. Kellough distinguishes between traditional affirmative action – which is rooted in principles of equality – and diversity management – which is rooted in utilitarianism. Kellough points out that the original vision of diversity management was antithetical to early [*194] diversity management advocates who “argued strenuously that their efforts were distinct from, and indeed transcended, affirmative action” (p.68). Today, the meaning of diversity management is ambiguous; one variety of diversity management “may be seen as a successor” to affirmative action, whereas another variety “look[s] very much like traditional affirmative action (p.69). However, the book could have been improved by assessing the extent to which diversity management has supplanted traditional affirmative action. Kellough largely portrays affirmative action as a policy that is devoted to the “search for justice.” In contrast, many scholars have argued that affirmative action in many respects is becoming transformed into an instrumental, diversity management policy that is losing its civil rights core (Edelman, Fuller, and Mara-Drita 2001; Kelly and Dobbin 1998; Wilkins 2004). UNDERSTANDING AFFIRMATIVE ACTION could be improved by elevating the tension between traditional affirmative action and diversity management to a central theme of the book rather than bracketing this issue into one small section of one chapter.

Chapter 5 provides a concise overview of the Supreme Court’s constitutional and statutory interpretations. Chapter 6 traces the recent developments from HOPWOOD v. TEXAS, Proposition 209, and Initiative 200 in the mid-1990s to the GRUTTER v. BOLLINGER and GRATZ v. BOLLINGER decisions in 2003. Chapter 7 reviews the literature on the effectiveness of affirmative action in employment, contracting, and education. The book concludes in Chapter 8 by reflecting on the likely future for the policies in the 21st century. Kellough ends the book with cautious support for affirmative action: “Affirmative action programs properly constructed can be an effective means of helping to ensure that society will enjoy the benefits of the great diversity this nation offers” (p.150). Kellough walks the fine line between putting forth his case for affirmative action in a book that provides a balanced overview of this explosive topic. In the end, the book is very much worth reading and retaining as a concise, handy, and readable guide that clarifies knowledge on an important and much misunderstood issue.

REFERENCES:
Edelman, Lauren B., Sally Riggs Fuller, and Iona Mara-Drita. 2001. “Diversity Rhetoric and the Managerialization of Law.” 106 THE AMERICAN JOURNAL OF SOCIOLOGY 1589-1641.

Glazer, Nathan. 1988. “The Affirmative Action Stalemate.” 90 THE PUBLIC INTEREST 99-114.

Kelly, Erin, and Frank Dobbin. 1998. “How Affirmative Action Became Diversity Management: Employer Response to Antidiscrimination Law, 1961 to 1996.” 41 THE AMERICAN BEHAVIORAL SCIENTIST 960-984. [*195]

Skrentny, John David. 1996. THE IRONIES OF AFFIRMATIVE ACTION: POLITICS, CULTURE, AND JUSTICE IN AMERICA, MORALITY AND SOCIETY. Chicago: University of Chicago Press.

Skrentny, John David. 2002. THE MINORITY RIGHTS REVOLUTION. Cambridge, Mass.: Belknap Press of Harvard University Press.

Sniderman, Paul M. and Edward G. Carmines. 1997. REACHING BEYOND RACE. Cambridge, Mass.: Harvard University Press.

Wilkins, David B. 2004. “From ‘Separate Is Inherently Unequal’ to ‘Diversity Is Good for Business’: The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar.” 117 HARVARD LAW REVIEW 1548-1614.

CASE REFERENCES:
GRATZ v. BOLLINGER, 539 U.S. 244 (2003).

GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).

HOPWOOD v. TEXAS, 78 F.3d 932 (5th Cir. 1996).

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© Copyright 2007 by the author, Daniel Lipson.

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DEMOCRACY AND THE JUDICIARY

by Ozan Ergül (ed.). Ankara: Union of Turkish Bar Associations, 2006. 328pp. Cloth. $35.00. ISBN: 9756037407.

Reviewed by Hootan Shambayati, Department of Political Science, Bilkent University. Email: hootan [at] bilkent.edu.tr.

pp.188-190

This volume is the proceedings of a symposium held in Ankara in January 2005. A Turkish version of the proceedings appeared shortly after the meeting and was followed by an English version. The present review deals with the English version. As with many other edited volumes, this is an uneven work. Furthermore, as far as the present volume is concerned, many of the papers at the original conference were presented in different languages and then translated into the appropriate publication language. An additional problem with this volume is that some of the chapters included are transcripts of oral presentations while others are more developed essays.

The aims of the book are set in a short introduction by the editor, Ozan Ergül, and the transcript of the speech by Ozdemir Ozok, the president of the Union of Turkish Bar Associations, opening the conference. The aim of the symposium and hence the book is “to make a significant contribution to the consolidation of “Turkish” democracy and the independent judiciary” (p.8). Accordingly, the book is mainly addressed to a Turkish audience, particularly legal practitioners. As it is made clear in the introduction and in the chapters that specifically deal with the Turkish case, particularly those by Ergun Ozbudun and Ali Ulusoy, the Turkish judiciary’s relations with the country’s political branches have been uneasy over the years and despite forty years of experience with judicial review the courts, particularly the constitutional court, and the elected politicians often find themselves at loggerheads concerning the proper role of each institution in a democracy. The book, hence, tries to determine the proper role of the judiciary in the process of democratization by looking at the experiences of other countries.

The first section deals with general theoretical issues concerning “constitutional democracy and limited government.” The section includes brief essays by Michel Troper, Christian Starck, Ulrich Karpen, and Mithat Sancar. The second section includes the transcript of Professor Pasquale Pasquino’s brief introductory remarks and a chapter by Professor Klaus vov Beyme reviewing the history and activities of the German Constitutional Court. The last article in the section by Fazil Saglam, a justice of the Turkish Constitutional Court, is a brief and according to the author “optimistic” (p.118) review of some of the decisions of the Turkish Constitutional Court and other high courts considering protection of human rights and civil liberties. Nevertheless, even this optimistic review notes many of the problems with the structure of Turkey’s 1982 Constitution that impose severe limitations on individual rights (p.102). [*189]

The next two sections of the book deal with case studies of “old” and “new” democracies. The “old” democracies are Italy (Pasquale Pasquino), United States (Cornell Clayton), Germany (Christoph Gorisch), and France (Alain Pariente). The section on the new democracies begins with a brief introduction to the judicial system of Azerbaijan by Hanlar Hajiyev, that country’s justice on the European Court of Human rights, and continues with two comparative chapters on post-communist constitutional courts in Central and Eastern Europe (Renata Utiz and Radoslav Prochazka) followed by a chapter on the Russian Constitutional Court (Ferdinand Feldbrugge). What emerges from these chapters is that the courts in the new democracies enjoy a higher level of popular legitimacy and are still seen by many as “countermajoritarian” institutions protecting civil liberties and advancing the cause of democratic consolidation. The third section deals specifically with the Turkish case and includes articles by Ergun Ozbudun and Ali Ulusoy and the transcript of Professor Fatih Selami Mahmutoglu’s oral presentation.

The most valuable contribution of this volume is the insight it provides to the views of Turkish scholars and legal experts toward the judiciary and its role in the consolidation of democracy. The picture that emerges is one of despair. On the one hand, as the title of the volume suggests, most believe that the judiciary has an important role to play in deepening and consolidating democracy. At the same time, however, as many of the chapters suggest, Turkish courts have not always contributed to democratic consolidation. This negative evaluation has a lot to do with the nature of Turkish democracy. As Clayton’s contribution to the volume suggests, “the role of the courts in a democracy is always tied to broader political structures and developments” (p.132). Turkish democracy has a militant nature that frequently relies on courts to exclude alleged “anti-systemic” movements and ideologies, even if it is at the expense of pluralism and democracy. A militant democracy like Turkey, as Sancar notes, “can produce practices other than the one ordered by the constitution” (p.50).

Going beyond the constitution, particularly when it is democratically suspect as is the case with the 1982 Turkish Constitution, is not necessarily a bad thing as far as democratization is concerned. As Feldbrugge suggests in his discussion of the Russian case, “in a nascent and still very imperfect democratic system . . . a constitutional court that would resign itself to the fine tuning of constitutional relationships between the main agencies of the state would miss great opportunities to further democracy” (p.225). The problem arises, however, when the courts try to remove essentially political issues from the political arena, as has been the case in Turkey (see chapter by Ozbudun). As Ozbudun concludes, “a constitution, which should be an ideologically neutral instrument as far as possible, should not impose the same social and economic choices on all contesting parties. If it does, the essential meaning of multi-party politics and inter-party competition will be lost” (p.293). In the Turkish context, many decisions of the Constitutional Court, as Ozbudun [*190] argues, “reflect a distrust in the mechanisms of majoritarian democracy” (p.287). It is this aspect of judicial activism in Turkey that concerns most students of the Turkish judiciary and democracy, including those contributing to this volume.

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© Copyright 2007 by the author, Hootan Shambayati.

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