A COMMON LAW THEORY OF JUDICIAL REVIEW: THE LIVING TREE

by W.J. Waluchow. New York: Cambridge University Press, 2007. 296pp. Hardback. $80.00. ISBN: 9780521864763. e-Book format. $64.00. ISBN: 9780511271649.

by Howard C. Ellis, Department of Business Administration, Millersville University of Pennsylvania. Email: howard.ellis [at] millersville.edu.

pp.408-412

Abortion, eminent domain, affirmative action, homosexual relations, school vouchers, and the death penalty are contentious issues that have been addressed by the Supreme Court in recent years. Though the court has spoken, these issues are far from settled. In fact, some would argue that these issues are more contentious because the court has constitutionalized them, instead of allowing them to be resolved by the democratic process.

Equally polarizing is the higher order question of the court’s power to resolve issues of such moment, rather than leaving their resolution to the political branches. This is especially problematic when the resolution reached by the courts contravenes majority opinion on the moral and political issues in question.

The debate regarding the proper role of the courts in its exercise of judicial review generates much heat. In American jurisprudence, judicial review is of such lengthy pedigree that it is not challenged much in and of itself. Rather, the debate rages over the approach: whether courts should be restrained or activist. A restrained court’s decisions tend to be controlled by the written text of the constitution itself (textualism); the original understanding of the constitution (originalism); the moral and political values of the community as expressed in the legislative enactment (popular will). To the extent that a court deviates from such (self-imposed) restraint it would be considered activist. In recent years activist decisions have favored the political left: severely limiting governmental interference with abortion rights, protecting homosexual rights, limiting the state’s ability to impose the death penalty, approving of affirmative action. It is not surprising that commentary from the political right tends to favor the restrained theory of judicial review, while commentary from the left tends to favor activism.

Activism’s defenders argue that it is contrary to democratic self-governance for the modern polity to be bound by the dead hand of the past. Advocates of restraint argue that it is contrary to democratic self-governance for unelected judges, “our robed masters” as the critics would have it, to override the will of the majority. Activism posits that the Framers could have foreseen neither the circumstances of our modern condition nor the development of our moral knowledge and sensibilities. Restraint answers that political organs of government can respond to such changes. Both sides of the debate believe that they are the defenders of the democratic ideal. [*409]

In A COMMON LAW THEORY OF JUDICIAL REVIEW: THE LIVING TREE, W.J. Waluchow attempts to develop a conception of constitutions (the author uses the terms “charter” and “constitution” interchangeably) and judicial review, which justifies both by striking a balance between excessive entrenchment and elitism. His conception of the proper role of the courts ultimately rejects all three elements of judicial restraint (originalism, textualism, and popular will) in favor of a common law approach to judicial review. He posits that the common law approach is itself limiting enough on the power of judges to avoid the danger that the court will overstep its bounds. In this way, he hopes to show that it is possible to avoid both the pitfalls of excessive restraint (the dead hand of the past) and of excessive activism (the substitution of the judges’ values for society’s).

This is a book written by a philosophy professor for an audience of professional philosophers, and yet it is reasonably accessible to the non-professional reader. It is virtually jargon-free and is written in an engaging and clear style. Waluchow mostly steers clear of the modern controversies mentioned above, with passing reference made to abortion and same-sex marriage. In the latter instance he takes a position in support of same-sex marriage but only as an example of how his theory of judicial review might work in practice and how that theory could be justified. The book will be of most value to the student of jurisprudence who wants to look behind the political issues to more fundamental questions of democratic self-governance. It may also be of greater value to a non-American audience, such as that of Canada, the United Kingdom, or other democratic nations who have not quite settled the more fundamental issues of constitutionalism that Waluchow addresses in great detail. It is telling that the author is Canadian, and the critic whose work he most centrally addresses, Jeremy Waldron, is a native New Zealander.

The book’s greatest virtue is Waluchow’s willingness to lay out with great clarity and fairness arguments on both sides of each issue, and then to do his best to respond to those arguments.

The task he sets for himself is to answer the following questions:
• Does a nation need a charter?
• If it is going to have a charter, who should interpret it?
• If judges are going to interpret the charter, what, if anything, should constrain them in their interpretations?

Waluchow’s plan of attack in answering these question is as follows:
• To set out the standard case for charters – that is, the defense of charters as conceived by such advocates as Ronald Dworkin and John Hart Ely.
• To explicate the case of charter critics, most notably Jeremy Waldron.
• To develop a new conception of charters and judicial review that avoids the problems identified by the critics as fatal to the standard case. [*410]

Does a nation need a charter? Though this is not an open question in the United States, it is still debated elsewhere. Canada, for example, adopted its own charter (Constitution Act) in 1982. Thus, for the first time Canada entrenched certain fundamental rights including the right of life, liberty, security of the person, equality under the law, and freedom of thought, belief, opinion, expression and association. But this development has not been accepted with universal acclaim.

The standard case for charters and judicial review begins with the proposition that democratic procedures will often shortchange minorities. Waluchow quotes Justice Robert Jackson approvingly: “‘The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials . . . . [F]undamental rights may not be submitted to vote: they depend on the outcomes of no elections’” (p.116). Life-tenured judges, however, are immune from such political pressures, and are therefore more likely to safeguard minority interests, hence the importance of judicial review.

Moreover, a national charter helps to forge a national moral identity, avoiding the sort of moral regionalism exemplified by the Jim Crow south.

Importantly, charters provide a pre-commitment of the community to observe fundamental rights, regardless of the exigencies of the day. This pre-commitment to rights such as the vote, freedom of the press, and equality before the law, impresses upon the community and the organs of government that these rights are not subject to the whims of the majority. The community has “tied itself to the mast” insofar as fundamental moral principles are concerned.

The critics’ case against charters and judicial review has two central themes. First, entrenchment thwarts the will of the people and denies the people the ability, necessary to self-government, to “reevaluate and alter their commitments in light of changing circumstances and increased knowledge” (p.138). Additionally, the existence of a charter binds us to the particular words in the charter, and thus the courts find themselves forced to debate endlessly the meaning of those words. So, for example, first amendment cases about flag burning or topless dancing might hinge on whether these activities can properly be called “speech,” rather than on whether they are activities deserving of protection. Moreover, “rights talk” often leads to an acrimonious public debate. Abortion is the best example. It is not easy to reconcile conflicting rights, such as the right to life and the right to choose.

Second, a charter inevitably leads to judicial review of legislation vis-à-vis the charter’s provisions. The critics object to the power of judicial elites to make decisions of political morality. The people do not have a democracy if they themselves cannot determine what freedoms they have and what those freedoms mean. Courts, say the critics, have historically been as likely to protect majority or property interests as to [*411] protect minority or individual rights. PLESSY and the LOCHNER era cases are cited as examples. One could also cite the recent KELO decision on eminent domain.

Waluchow attempts to answer the critics with what he describes as a Copernican revolution in thinking about charters and judicial review: his common law conception. Based on the principle of precedent, the common law strives to strike a balance between the certainty and stability provided by fixed rules and the need for adaptability to unanticipated circumstances. The common law has proven successful at striking this balance, for example, in the law of negligence.

Why not take the same approach to constitutional jurisprudence? “It is time to do away with the notion that a Charter can, in the circumstances of politics and the equally crucial circumstances of rule making, establish pigeonholes serving as fixed points of agreement and pre-commitment to moral limits on government power. It is well past time to recognize that in this area too, ‘The categories . . . are never closed.’ They demand the case-by-case, incremental changes and improvements that common law methodology makes possible” (p.208). The common law conception rejects originalism, because
rules that are fixed by ancient meanings might lead to decisions that violate modern (improved) norms of morality or lead to irrational or undesirable consequences. It rejects textualism because almost by definition principles expressed in a charter are purposefully general and the words are chosen in order to give judges flexibility to adapt those principles to cases the circumstances of which could not have been foreseen. It rejects popular will on the belief that judges are in a better position than politicians to identify the community’s authentic moral commitments, and to enforce them even against the prevailing popular sentiment. Waluchow cites the popular opposition to same-sex marriage as an example of a widely held sentiment which is (he believes) contrary to the community’s more authentic and deeply held belief in equality and against irrational prejudice. At the same time he presents a solution to the problem of judicial supremacy by insisting that it is not mandatory, offering the examples of New Zealand, where the Supreme Court has the authority to opine about the constitutionality of a legislative act but not to overturn it, and Canada, where the legislature has the authority to override the constitutional decisions of the Supreme Court.

Ultimately Waluchow’s project meets with moderate success. His conceptualization does answer the critics of charters as such, demonstrating that a charter need not lead to entrenchment and subservience to the dead hand of the past. He does a good job of establishing the validity of the institution of judicial review, based on the propensity of democratic majorities to be swayed by the exigencies of the moment to the derogation of fundamental principles. However, he appears to have fallen short when it comes to the activism-restraint controversy. It is not clear to this reader that the common law conception of judicial review would add any additional [*412] luster of legitimacy to the Supreme Court’s decisions in controversial cases when the Court departs significantly from the text, original meaning, or popular will. His case ultimately depends on our willingness to trust the good faith and good sense of judges as more capable arbiters of societal values than the political organs of government. That is a hard case to make.

CASE REFERENCES:
KELO v. CITY OF NEW LONDON, 545 U.S. 469 (2005).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

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©Copyright 2007 by the author, Howard C. Ellis.

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THE WAR ON PRIVACY

by Jacqueline Klosek. Westport, Connecticut: Praeger, 2007. 248pp. Hardcover. $49.95/£27.95. ISBN: 9780275988913.

Reviewed by Gloria C. Cox, Associate Professor of Political Science and Dean, Honors College, University of North Texas. Email: gcox [at] unt.edu.

pp.404-407

At the start of THE WAR ON PRIVACY, Jacqueline Klosek reminds her readers of Benjamin Franklin’s well-known comment, “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.” This remark, one of many paraphrases of Franklin’s statement, sets a fitting tone for Klosek’s succinct overview of how the right of privacy has been affected by the attacks of September 11, 2001. Her objective is to “explore how the ongoing global war on terror has led to a global war on privacy” (p.xii).

Klosek is to be commended for attempting to provide an overview that encompasses every region of the world. She highlights common themes while providing more detailed information on two categories of nations: large, powerful states whose stance on issues is always important; and those nations in which something especially notable, either good or bad, has happened to privacy in recent years. The reader is reminded, for example, of China’s use of anti-terrorist legislation as a tool of repression against political dissidents. Tunisia, rarely in the news, is included for the comprehensive privacy policies that make it unique in the Middle East and North Africa. To provide as much information as possible, the author includes many bulleted lists, a practice that admittedly makes for difficult reading at times. Tables in the Appendix summarize much of the data, which is helpful.

As might be expected, Klosek’s discussion of actions taken by the United States is the most detailed and, therefore, the most interesting. Her analysis begins with the fact that the US, unlike the European Union (EU) and Canada, takes a piecemeal approach to privacy protection. As a consequence, the privacy landscape in the US is dotted with laws aimed at privacy protection in specific areas, such as medical records (The Health Insurance Portability and Accountability Act), financial records (The Gramm-Leach-Bliley Act), and children’s Internet use (The Children’s Online Privacy Protection Act). These and other laws stand in sharp contrast to the integrated privacy protection established by the EU in 1995 through the Data Protection Directive that requires EU member states to conform by enacting their own national laws in keeping with the directive.

Klosek regards the actions of the U.S. government since September, 2001, as nothing less than a war on privacy. Her criticisms cover many bases, including agency efforts to gain access to data to which they had no right before 9/11. Data sharing, once widely frowned upon, is now common, especially between corporations and government agencies. Klosek reserves some of her harshest criticism for one particular [*405] entity, the National Security Agency (NSA), which has been involved in covert domestic surveillance for many years. The NSA’s activities have quickened noticeably since 9/11, as Klosek illustrates with several important examples. One notable instance is the May, 2006, revelation that the NSA was able to get from AT&T, Verizon, and BellSouth, complete calling histories of some 200 million customers (p.39). Other corporations have also handed over personal data, including several airlines which have willingly shared their records. Klosek also discusses several important data mining projects, including Carnivore, CAPPS and CAPP II, TALON, and MATRIX (pp.44-49). She reminds the reader of the many threats to privacy created by data mining, particularly when the work is handed off to private contractors (as most of these projects were), putting the data at even greater risk.

However, it is the USA PATRIOT Act for which the author reserves her greatest criticism, noting (as many other critics have) the sweeping changes and broad coverage of the law. Not only did this legislation authorize many practices that in and of themselves put citizen privacy in jeopardy, but the PATRIOT Act also amends provisions of numerous other laws, always to the detriment of citizen rights. Of the PATRIOT Act Klosek writes, “The text of the USA PATRIOT Act exceeds 100 pages, making it the longest piece of emergency legislation passed in the shortest period, in all U.S. history” (p.xii).

In accord with the author’s purpose, each chapter provides an overview of a different area of the world. While the United States gets two chapters, only one is devoted to Europe and another chapter attempts to cover Australia, New Zealand, and Asia. Clearly, the book cannot offer an in-depth analysis of any nation, as it attempts to take a global look at the issue in just 158 pages of actual text. Certainly, it is a drawback that, within chapters, some nations are covered in a single paragraph, while others are not even mentioned. Japan gets just one paragraph, for example, although China and Russia get slightly more coverage. However, even with small amounts of information on each region and selected nations, the cumulative effect is quite striking.

Several points of considerable importance emerge from THE WAR ON PRIVACY. Actions taken since 9/11 by the US have had global influence in two ways. First, Congressional and Executive actions have served as models worldwide, justifying the actions of nations that wanted to adopt harsh anti-terrorist legislation. Additionally, the US has been a powerful player, urging nations everywhere to adopt anti-terrorist measures. Such laws typically define terrorism so broadly that they can be used against political enemies or insurgent groups, even those with legitimate grievances against their government.

It should be noted that the US has not stood alone in its advocacy of new legislation. The United Nations also contributed by calling on member states to adopt terrorist conventions, again with little concern for human rights. The end result was a worldwide movement [*406] toward legislation that amounted to a war on privacy, according to Klosek. Certainly there is plenty of evidence that such laws have been the rationale for clamping down on political dissidents and opponents. Among the countries engaging in such behavior are China, Uzbekistan, and Russia (p.8). In Russia, for example, President Putin immediately linked the rebel problems in Chechnya with terrorism and Al Qaida.

At the same time, the US has brought pressure to bear on nations with well-developed privacy protection systems, urging them to lessen those protections and grant governments, especially that of the United States, greater access to data. Thus, while the Data Protection Directive of the European Union has helped to spread awareness of privacy issues throughout the world, the author notes, “more than five years after 9/11, all indications suggest that surveillance activity is still increasing, while efforts to protect privacy continue to decline” (p.3). Perhaps some readers remember the controversy that loomed as the US demanded that European air carriers provide lists of their passengers and personal information about them for all flights landing in the US. While there was resistance, the US was able to get the EU to acquiesce to its demands in this key area, along with several others.

A final point documented by Klosek is the proliferation of types and incidents of heretofore unprecedented governmental surveillance of civilians. Around the world, new laws grant government authorities authorization to conduct surveillance in many ways, including interception of telephone and electronic messages, review of financial, credit card, and travel records, and tracking of daily activities of literally billions of people. What may shock some readers is the prevalence of cameras all over the world. Surveillance cameras are in common use in European nations, for example, where, although privacy protection is important, several nations have had to cope with devastating terrorist attacks. (Unfortunately, Klosek provides two figures for the number of surveillance cameras in use for the UK: three million (p.103) or four million (p.111).) Notably, a single city in China – Shanghai – is estimated to have at least 200,000 cameras in place. Transit systems often have the most cameras, as they present large targets of opportunity for terrorists. The UK and Spain have experienced such attacks in recent years, and it was noted around the world that cameras in the London Underground, while not preventing the attacks, helped authorities to identify the perpetrators.

In sum, Klosek notes that the September 11, 2001, attacks and the political aftermath created the impetus for adoption of numerous laws and conventions worldwide, thus diminishing privacy rights in almost every nation. Moreover, these newly ordained practices rarely focus just on terrorist threats, but are widely used to suppress political opposition and free speech, even reporting by journalists. The voices of those wishing to protect privacy, such as human rights groups, are drowned out by the greater numbers who believe they have made a good trade by giving up some of their freedoms for greater security. Taking a [*407] global overview since 2001, only Japan can claim to have expanded privacy rights. Klosek’s title of a “war on privacy” is well-documented.

While THE WAR ON PRIVACY is informative, it seems most useful for the legal professional with an interest in privacy issues rather than students in an academic setting. Bulleted lists of features of various laws and the generous use of acronyms for agencies and laws are common features of the book, making it difficult at times. Additionally, while important concepts are discussed, the book is primarily factual rather than theoretical, which may limit its usefulness for academic purposes. This is a welcome and valuable overview of an important topic.

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© Copyright 2007 by the author, Gloria C. Cox.

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NEW DIMENSIONS IN PRIVACY LAW: INTERNATIONAL AND COMPARATIVE PERSPECTIVES

by Andrew T. Kenyon and Megan Richardson (eds). Cambridge: Cambridge University Press, 2006. 306pp. Hardback. $110.00/£60.00. ISBN: 9780521860741. eBook format. $88.00. ISBN: 9780511254871.

Reviewed by Lawrence E. Rothstein, Department of Political Science, University of Rhode Island. Email: LER [at] URI.EDU.

pp.399-403

In the first chapter of NEW DIMENSIONS IN PRIVACY LAW, editors Andrew T. Kenyon and Megan Richardson introduce the subject matter of each of the following contributions. The central theme of the essays is the legal relationship between communication and privacy. In a somewhat piecemeal and at times repetitive manner, this collection of essays contrasts two perspectives on the notion of informational privacy. The “interest” perspective sees privacy as one interest among many, including free expression, free exchange and commercial exploitation of information, security and even curiosity. These interests must be balanced in the light of overall social utility. The “rights” perspective gives privacy a preferred, though certainly not absolute, position at least against those interests that are not characterized as rights. Thus privacy as a right may more easily trump commercial exploitation, curiosity and some aspects of security. A right of privacy still must be balanced against other rights such as free speech and press.

The contributing authors generally attribute the rights perspective to the comprehensive privacy legislation and jurisprudence of continental European countries, such as France and Germany, and the data protection directives and European Convention on Human Rights of the EU. They contrast this with the lack of a right to privacy recognized by British statutory or case law. Former British colonies such as the US, Australia and New Zealand have accepted a very limited right to privacy on specific topics while primarily balancing privacy as one interest against security, commercial and political interests in fragmented legislation and tort law rulings. Seven of the ten essays in the book discuss the 2004 British House of Lords decision in NAOMI CAMPBELL v. MGN, LTD., shoehorning Ms. Campbell’s suit challenging the tabloid exposé of her involvement with Narcotics Anonymous into a breach of confidentiality rationale even though no confidential relationship existed between her and those who took the pictures or wrote and published the story. Dicta in the case reference Article 8 of the European Convention on Human Rights (ECHR) and the British Human Rights Act of 1988, which address a right to respect for family life, home and correspondence, but the holding of the case falls far short of establishing such a right.

Three of the essays compare the CAMPBELL decision with the 2005 decision of the European Court of Human Rights in VON HANNOVER v. GERMANY, which upheld a broad right to privacy in all non-official activities of someone who is the subject of public [*400] interest and curiosity. In this case the European Court held that Princess Caroline of Monaco was deprived of her right of protection of private life when a magazine, without her permission, took and printed pictures of her shopping, riding a horse and doing other routine activities in public spaces. Gavin Phillipson, in Chapter 8, provides the most detailed comparison of these decisions.

In Chapter 2, Eric Barendt, Professor of Media Law at University College London, begins with a brief discussion of the two cases mentioned in the preceding paragraph where arguably privacy is opposed to free speech. He cautions that freedom of the press, particularly when exercised by a corporate entity, is not congruent with free speech exercised by a real person. He wishes to break away from the commonplace that privacy and freedom of expression are usually at odds. He argues that often privacy supports free speech because a concern for the integrity and development of the human identity and personality underlay both of these rights. He notes that the confidentiality and privacy of a conversation is often what makes full and free expression in that conversation possible. As examples he cites the European Court of Human Rights’ consideration of prisoner correspondence under the privacy article of the ECHR (Article 8) as well as the freedom of expression article (Article 10), journalists’ claim of privilege to maintain confidentiality and privacy of sources as a protection of the sources’ freedom of expression as well as freedom of the press, the ability to block caller ID as protecting both the privacy and freedom of expression of the callers, and the restrictions on spam and telemarketing protecting both the privacy of the targeted recipients and their ability to use the telephone system and the internet freely to receive and communicate desired information. Barendt asks courts and decision makers to recognize that the protection of one entity’s freedom of expression, when that violates another’s privacy, may also impact that other’s freedom of expression.

Brian Murchison, of Washington and Lee Law School, attributes the weakness of the American tort action for public disclosure of private facts to the lack of a strong theoretical analysis of privacy. He argues that courts simply take the media’s interest and the public’s curiosity about certain matters as establishing the public nature of the facts disclosed. The classic case was SHULMAN v. GROUP W PRODUCTIONS, where a rescue team responded to an accident with a microphone-wired nurse and a camera crew. Recordings were made of the expressions of pain, disorientation, condition and treatment of the mother and son trapped in the car and broadcast as part of a news special on emergency medicine. The California Supreme Court agreed with the defendant producers of the show that the footage was relevant to a matter of public concern, “the rescue and medical treatment of accident victims,” and that the airing of the footage was not the public disclosure of private facts.

Murchison’s position is that American courts, particularly the Supreme Court, have failed to articulate the importance of privacy as a major protection of [*401] human dignity. He argues that Supreme Court libel decisions, such as NEW YORK TIMES v. SULLIVAN, have usurped the human dignity analysis and focused it on the dignity of political participation furthered by free political expression rather than the dignity of personal development through private relationships. As does Barendt, Murchison notes that concentration on protection of public speech and the media’s disclosure of private facts can burden private speech. He sees some hope in dicta contained in the opinions of Justices Stevens, Breyer and O’Connor in BARTNICKI v. VOPPER (2001). These opinions, while upholding the disclosure of private conversations of union officials recorded in apparent violation of the Electronic Communications Privacy Act, also noted the importance of private speech.

In “The Internet and Private Life in Europe: Risks and Aspirations,” Yves Poullet and J. Marc Dinant of the University of Namur analyze features of the Internet that led to updating the 1995 EU Data Protection Directive in 2002. First they note the massive creation of data by users themselves due to the interactive nature of the Internet. Each time a user accesses a site or chooses not to access previously visited sites useful data are created. The queries and contributions a user makes when accessing a website create data that may identify the user or at least tell important details about that user’s life. Second, the recent and continuing increases of data flow rates and processing power have radically increased the amount of information, the types of information and the ability to locate, sort and use the information on the Internet. Video, voice and music are readily available. Third, the ease and speed of uploading and downloading and the multiple points of access, with little control on who does what about whom, raises major privacy concerns. Fourth, the global dimension of the web, with many transborder uploads and downloads, creates anxiety over legal control of information. Finally, the opacity of many Internet functions, such as the placement of cookies, unique terminal identifiers, invisible hyperlinks, search engine operation, internet access providers and browser functions, raises serious questions about security of data.

Because of these developments, the 2002 Directive broadened the definition of identifying information to information such as terminal identifiers, cookies and browser and search profiles. Of particular concern was data traffic information which could allow for tracing to data sources. The Directive required destruction of such data once they were no longer needed for message transmission. It also strengthened the consent requirement for collection and processing of traffic and location data. The authors suggest, however, that consent is not always adequate for collection of data that can be attributed directly or indirectly to particular individuals. Weak standards and processes for informing data subjects regarding the nature and extent of their consent and withholding of services if no consent is given mean that the individual is often at the mercy of the data collector. The authors recommend strong controls on what legitimate purposes of data collection are and [*402] stronger processes for assuring that data collected for a particular purpose are only used for that purpose. They advocate directing choices of technology at privileging data protection and the privacy of data subjects.

Australian law professor Graham Greenleaf criticizes the Asia-Pacific Economic Cooperation group (APEC) for proposing a very weak Privacy Framework that seemed to ignore the strides taken by the EU, as well as the privacy protection legislation already in force in some of the 21 countries that make up APEC. Ostensibly based on the 1980 OECD Privacy Guidelines, already dated and not particularly strong at the outset, the APEC Framework weakens or leaves out some of the OECD privacy principles and further weakens the implementation and enforcement of privacy rights. Overall, the APEC Framework strives to “ensure” the free transborder flow of information, while merely “encouraging” privacy protection limited to preventing serious harm caused by the misuse of personal information.

David Lindsay and Sam Ricketson, also Australian law professors, note that digital rights management (DRM) techniques used primarily to implement copyright protection in the digital world may raise serious privacy concerns for users of the copyrighted material. For example, users wishing to download copyrighted music selections are required to identify themselves, may create a profile indicating types of music in which they are interested and give payment information. In addition, they are subject to cookies and leave identifying traces in their interactive traffic with the music purveyor. Each of their accesses to or uses of the copyrighted material may be monitored or reported back to the issuing entity. Self-enforcement mechanisms, such as single machine accessibility or time or number of use restrictions, added to copyrighted digital material, may affect a user’s choices on how to use the material. Broadcast flag technology may restrict, as well as record, the copying and sharing of digital material. Again, the EU has been the leader in approaching these concerns. In a document affirming the application of the 2002 Data Protection Directive to DRM (2005), the EU Working Party on Data Protection emphasized maintaining anonymous access to network services and limited linking of individuals to documents accessed, except with consent or where necessary to perform the service requested. The Working Party also stressed the importance of informing users of the purposes of data collection and the recipients, prior to collecting the data.

Raymond Wacks of the University of Hong Kong attempts to explain why there is not an English common law privacy tort. He propounds seven reasons. The first follows from his analysis of the CAMPBELL case and the preference of the British courts for extending an already established equitable remedy for breach of confidence. The second reason is the prospect of the British Human Rights Act of 1998, echoing Article 8 of the ECHR’s protection of family, home and correspondence, being interpreted as establishing a statutory right to privacy. [*403] The third reason is the primacy of free speech, in particular public speech, in the decisions of British courts. Fourth, the EU Directive inspired Data Protection Act of 1998 has been increasingly used by the courts to provide some privacy protection. Fifth, the British Press Complaints Commission has promulgated a code of conduct with regard to privacy, and the courts have used this code under the direction of the Human Rights Act to balance privacy and freedom of speech and press. Sixth is the general response of the British courts that the concept of privacy is not philosophically coherent and is often confused with autonomy and bodily integrity.

Finally, the British courts and particularly the House of Lords have a preference for legislation rather than jurisprudence to establish new causes of action. Wacks seconds this preference and suggests specific, limited and clearly drafted legislation to establish a cause of action for unwanted publicity. Similarly, Kenneth Keith of New Zealand favors a legislative, rather than a common law or constitutional, solution to the creation of a privacy cause of action.

In the final chapter, Australians Megan Richardson and Lesley Hitchens compare older cases dealing with publication of private facts about celebrities with more recent ones. They find that despite more discussion of privacy as a right pertaining to personality in later cases, the holdings of both earlier and later cases most often turn on a property notion that private facts relating to celebrities are part of the celebrities’ stock and trade and should not be controlled by others without permission or an overriding public interest.

There is much unnecessary repetition in the analyses of the CAMPBELL case. The interest versus rights approach to privacy, while explicit in several of the essays and implicit in all of them, is not well developed theoretically. Overall, however, the essays provide a number of insightful ideas and analyses, as well as valuable references and citations, even for those steeped in the privacy literature.

REFERENCE:
Article 29 Working Party, Working Document on Data Protection Issues Related to Intellectual Property Rights, WP 104, 18 January 2005.

CASE REFERENCES:
BARTNICKI v. VOPPER, 532 U.S. 514 (2001).

NAOMI CAMPBELL v. MGN, LTD., 2 AC 457 (2004).

NEW YORK TIMES v. SULLIVAN, 376 U.S. 254 (1964).

SHULMAN v. GROUP W PRODUCTIONS, 955 P. 2d 469 (Cal. 1998).

VON HANNOVER v. GERMANY, 40 EHRR 1 (2005).

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© Copyright 2007 by the author, Lawrence E. Rothstein.

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LAW, VIOLENCE AND SOVEREIGNTY AMONG WEST BANK PALESTINIANS

by Tobias Kelly. New York and Cambridge: Cambridge University Press, 2006. 218pp. Hardback. $85.00/£48.00. ISBN: 9780521868068. eBook format. $68.00. ISBN: 9780511258374.

Reviewed by John Quigley, Moritz College of Law, The Ohio State University. Email: Quigley.2 [at] osu.edu.

pp.395-398

This book by anthropologist Tobias Kelly analyzes how law works in the West Bank of the Jordan River, with a focus on law as it relates to West Bank Palestinians as workers. The context is the complex post-Oslo bifurcation of authority, stemming from agreements between the Palestine Liberation Organization and Israel negotiated in Oslo in 1993, according to which Israel ceded some of its authority as belligerent occupant in the West Bank. Israel had been in control since the June 1967 war, during which it occupied the eastern sector of what had been known as Palestine while under British control between the world wars.

Under the agreements that followed the 1993 Oslo agreement, the PLO would administer some areas of the West Bank, principally the population centers, while Israel would remain in overall control. The PLO under the agreements set up a Palestinian National Authority as an administrative structure. This bifurcation of administration between Israel and the PLO was designed to last only a few short years, as Israeli withdrawal from the West Bank was expected to be negotiated soon.

The negotiation process lagged, however, and bifurcated government continued. The PNA regulated certain aspects of life, while Israel, through an administration set up at the start of its occupation, regulated others. To make the situation more complex still, many Palestinians performed day labor inside Israel, subjecting them to yet another jurisdiction, namely, Israeli law, and to the institutions of the Israeli government.

Kelly addresses the labor relations of Palestinians and how Palestinians as workers deal with conflicts and disputes that arise in relation to their employment. As the situation admits of little collective labor action, the focus is on individual employment relations with employers. The lack of trade union protection leaves only individual remedies to a Palestinian worker with a grievance against an employer.

The focus on labor relations is not signaled by the book’s title, which leads one to think that Kelly is writing about political issues. But labor is the main topic. In one chapter Kelly deals with Palestinians in employment in the West Bank for Palestinian employers. In another, he deals with Palestinians in employment in the West Bank for Israeli settlements. In still another, he deals with Palestinians in employment in Israel. Each circumstance involves a Palestinian worker in a different set of legal relationships. And in none of them is there a single set of legal norms or a single legal structure.

The political backdrop is never far below the surface in any of these relationships. An issue that arose for Palestinians [*396] working in Israeli settlements was whether the law applicable to this labor relationship was Israeli law on the one hand, or on the other, the Jordanian law that is generally applicable in the West Bank. As the law in force when Israel’s occupation began, Jordanian law has continued to be applied as the law of the territory. For a Palestinian working in an Israeli settlement, however, Israeli law is preferable in certain respects. In particular, it is more generous as to severance pay upon termination. If Israeli law applies, then Palestinians and Israelis are treated the same, since Israel applies its own law to its citizens, even when they are in the West Bank. If Jordanian law applies, then a Palestinian worker has fewer rights than an Israeli fulfilling the same work in the same settlement. To make the matter more confusing, Israel’s application of its own law was, at the international level, unlawful, since an occupant is to apply the law in force.

The position that makes sense for the Palestinians at the ‘macro’ level – that their own law should apply in the West Bank to the exclusion of Israeli law – works against their interests on certain issues, like severance pay. Thus, Israeli lawyers representing Palestinians seek application of Israeli law.

For Palestinian workers employed in the West Bank by Palestinian employers, local Jordanian law applies. Kelly describes the serious difficulties involved in implementing orders of Palestinian courts, as Palestinian officials are not able to operate throughout the territory.

Palestinians working in Israel, as Kelly recounts, also face a complicated situation, perhaps the most complicated of all. Kelly tells one story of a discharged Palestinian worker attempting to sue an Israeli employer but who could not pursue the case because he could not enter the court house. The labor court was in Jerusalem, and as a Palestinian the worker must, under Israeli regulations, have a permit to enter Jerusalem. His lawyer had been unable to get him such a permit. He managed to enter Jerusalem without the permit, but the security guard at the courthouse door denied him entry. That ended his case against the employer.

In many instances, a West Bank Palestinian worker will have arranged work not directly with an Israeli employer, but through a Palestinian who contracts with an Israeli employer to supply labor. For an employee in these circumstances, the legal relationship is with the Palestinian contractor, not with the Israeli employer. One such worker, as Kelly describes, had been employed as a rubbish collector in a municipality near Tel Aviv. The Israeli employer, to muddle the situation further, was Yemen-born, hence as much a part of the Arab culture as a part of the Jewish culture. He had a contract with an Israeli municipality to collect its rubbish. On the basis of that contract, he made an arrangement with the West Bank Palestinian intermediary, who in turn hired other West Bank Palestinians.

In 2000, however, Israeli-Palestinian relations at the political level took a downward turn. Negotiations for an overall settlement of the conflict that had [*397] begun in 1999 ended without result, and a period of heightened confrontation commenced. The Israeli employer decided that he should no longer have West Bank Palestinians doing the rubbish collection work. He so informed the Palestinian intermediary. The Palestinian worker sued in an Israeli court for wrongful discharge, thinking he would collect from the Israeli employer. But at a certain point he was made to understand that he could sue only the Palestinian contractor, and he eventually compromised.

One useful aspect of Kelly’s book is that it demonstrates how difficulties of this sort will persist in Israeli-Palestinian relations, even if the much-discussed two-state solution is achieved. The economic inter-connection between the two areas will be a persistent source of conflict and will require appropriate regulation. Moreover, the territory of Israel was formerly part of Palestine. For Palestinians living outside Israel, the territory of Israel is not ‘foreign,’ but the land of their parents or grandparents. Many West Bank Palestinians, like many Gaza Strip Palestinians, are from families who lived until 1948 in the territory that became Israel in that year. They became refugees in nearby areas. When Israel occupied the Gaza Strip and West Bank in 1967, the border between those areas and Israel opened, and many began to work as day laborers in Israel. According to one perhaps apocryphal story, a Palestinian living in Gaza was hired to repair the plumbing in a house in Israel. The Israeli who hired him was impressed with the plumber’s knowledge of the house. The reason, the plumber explained, was that the house was actually his own.

Kelly’s analysis perceptively unravels the different interpersonal and political layers that may be involved in a particular dispute. For the Palestinian worker mentioned above who was fired in 2000, the relation with the Palestinian contractor was complicated by the fact that they lived in the same West Bank village and thus had a history of personal and family associations. Kelly criticizes others who have argued that Palestinians resolve disputes through traditional, informal mechanisms, as result of the bifurcation of authority and the resulting weakness of institutions like the courts. Kelly sees no disinclination to sue.

An additional issue that the casual observer of the Israeli-Palestinian conflict may miss, but which Kelly highlights, is economic differentiation among the Palestinians. The dispute involving the fired rubbish collector involved one Palestinian whose livelihood was based on physical labor, and another who served as go-between with Israelis. The worker walks, while the contractor drives an expensive car. The Palestinians are in one sense a people facing the Israelis, but as in all societies they also face internal social and economic stratification.

There is perhaps a danger in Kelly’s intensive focus on a small number of particular disputes. He spent a considerable amount of time living in the West Bank to develop the connections that allowed him to gain intimate knowledge of work situations of quite a few local Palestinians. A great value of [*398] his book is his ability to explain the life situation of those whose labor relationships he describes.

Whether this small number of examples is representative, however, might be challenged. Only a larger sample would provide confirmation. At the same time, one suspects that there is much that is representative in the disputes that Kelly recounts. And there is much to be learned from Kelly’s detail on how these disputes were handled.

Kelly’s book is useful in a number of different ways. First, he offers an understanding of how the Oslo process has led, perhaps by historical accident, to an extremely complex legal situation that makes life difficult for all involved. He also sheds light on the ramifications of Israel’s attempt to make its law apply, extraterritorially, to its settlements and settlers in the West Bank (and whose presence there is itself unlawful by international standards). In addition, he nicely illustrates the challenges of daily existence in the West Bank – a Palestinian’s need to work in a highly unstable context for lack of any alternatives.

The occupation by Israel limits economic options for West Bank Palestinians. Much of their land was taken over for settlements, for military use, to build roads that would service the Israeli settlers and soldiers. In more recent years, more land was taken to build a security wall that snakes through the West Bank. Indeed, such extensive land takeover has devastated the agricultural sector in the area. Not only is there less land to farm, but restraints on physical movement make it difficult to get products to market in a timely fashion. As for industry, restrictive regulations impede manufacturing development. The occupation has left Palestinians economically marginalized. The limited employment options open to West Bank Palestinians are reflected in the labor relationship examples Kelly provides.

Most who think about the legal, or political, situation in the West Bank operate in global terms: denial of self-determination, or Israel’s security concerns. Kelly’s book focuses on interaction at the economic and personal level, thus rendering these broader issues more concrete. His elucidation of these relationships may be helpful to potential mediators. Israelis and Palestinians will likely interact for a long time to come, and a sound legal basis for that interaction would make life more bearable for all concerned.

At a more general level, Kelly’s book invites thought about how disputes are handled in other societies. His approach is not comparative, but once he discusses such issues as propensity to sue versus resolving disputes through informal mechanisms, a reader inevitably will draw comparisons to the similarities and differences observable in other jurisdictions. The labor relations focus, and the many facets that Kelly explores, put the book squarely within the scope of other titles in the Cambridge series in which it has been published.

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© Copyright 2007 by the author, John Quigley.

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THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM: LESSONS FROM THE UNITED STATES, THE UNITED KINGDOM, AND ISRAEL

by Emanuel Gross. Charlottesville: University of Virginia Press, 2006. 320pp. Hardback. $35.00. ISBN: 0813925312.

Reviewed by Clive Walker, Centre for Criminal Justice Studies, School of Law, University of Leeds. Email: law6cw [at] leeds.ac.uk.

pp.387-394

Comparative research has great allure. Given that terrorism has become a universal concern for all jurisdictions since 9/11, one is tempted to enquire whether one’s neighbour might have developed some innovative solutions to the problems of human security which now beset us all. A comparative approach might be especially profitable in connection with terrorism since, for many countries, 9/11 marked the effective starting point of their legal journey towards comprehensive legal counter-terrorism. Nevertheless, some countries started on that journey well before that date and have full and sometimes didactic stories to tell.

The two with some of the longest and most complex yarns are Israel and the United Kingdom (mostly described, for unaccountable reasons, as ‘Great Britain’ in this book by Emanuel Gross). There seems to be a competition between them, with the author, in the Israeli corner, claiming that Israel has the most experience of terrorism amongst democracies, the remainder of which are said only to have began to grasp terrorism after 9/11 (p.2). This sweeping statement is not an accurate portrayal of the United States’ position. With waypoints such as the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132), there was a legislative pre-history even in the USA, though the cataclysmic events of 9/11 have indeed so traumatised the polity that reflection upon its own prior learning or that of neighbours and friends hardly figured in the rush both to new legislation and to Presidential law-making. Gross’ claim of Israeli pre-eminence also underplays considerably United Kingdom efforts. The United Kingdom not only bequeathed much of Israel’s current legislation (in the form of the Defence (General) Regulations 1945) but also has contended with colonial and Irish campaigns of political violence stretching over three centuries, and even the political machinations of foreign anarchists and dissidents in the nineteenth century, with a huge legal back-catalogue to match. There is also misrepresentation of the current nature of the UK’s response to terrorism which is certainly not to transform its strategy into ‘a third world war’ nor to expect a military ‘decisive and absolute victory’ over terrorism (pp.248, 258). No matter which of Israel and the United Kingdom should be viewed as enduring the most terrorism or producing the most laws, both are rich sources for comparison. Therefore, one should not unduly cavil at the primacy of the description and analysis of the Israeli legal experiences of terrorism since 1948 as the preferred core of this book. It is clearly a further worthwhile undertaking to reflect upon [*388] that experience and to draw comparisons with the United Kingdom and United States. At the same time, this alluring comparative work brings its dangers. Perhaps the ambitious attempt to draw together disparate jurisdictions will result in partial selection or inadequate explanation of one’s own jurisdiction. Perhaps, the descriptions of other jurisdictions will be shallow, or the comparisons drawn inappropriate. This review will assess THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM on both grounds.

On the core tasks of description and analysis of Israeli laws against terrorism, there is much to admire and value. Despite the longevity of conflict in Israel and Palestine (or even Ersatz Israel, as Gross generally and more controversially terms it), there has been no other English language text since Harold Rudolph’s book in 1984 (SECURITY, TERRORISM AND TORTURE: DETAINEES’ RIGHTS IN SOUTH AFRICA AND ISRAEL: A COMPARATIVE STUDY) which recounts so exhaustively how Israel has responded in law to the conflict it has faced with Palestinians and most of its neighbouring states since its founding in 1948. The book is an excellently accurate and rich source of materials, with especially valuable and cogent descriptions of key court decisions which were hitherto available only in Hebrew. Likewise, the trawl through relevant legislation and explanations of the separate codes for Israel and occupied territories is indispensable, though it would have helped to have provided a table of all these cases and statutes.

The description and analysis is organised around six chapters. These commence with Chapter 3, ‘Interrogation of Suspects,’ where Israel can offer official inquiries and landmark cases. These are described very fully, though descriptions of UK comparisons are partial and at times garbled (compare Walker 2002). Contrary to Gross’ assertion (p.83), physical force was certainly used in Northern Ireland, as determined by His Honour Judge H. G. Bennett (1979, para.163) and was actually endorsed to some extent by the courts (R v MCCORMICK [1977]). Contrariwise, in what respect the application of control orders under the Prevention of Terrorism Act 2005 amounts to a form of interrogation or involves torture is not explained (p.85). The conclusion that there should be judicial warrants to authorise ‘unusual interrogation means’ (p.91) betrays the moral cravenness of the balancing approach to rights and security, which will be discussed below. One hopes that the judges in a state which is said to vaunt the rule of law would refuse to participate in such an enterprise.

The ‘Administrative Power of Military Commanders in the Struggle against Terrorism’ is dealt with in Chapter 4. Many of the relevant powers are still contained in the Defence (Emergency) Regulations 1945, which were imposed by the then British administration mainly to quell what it viewed as Zionist terrorists such as Menachem Begin, later Prime Minister of Israel. Amongst the drastic powers still in use in Israel are the demolitions of houses (especially of suicide bombers), curfews and the blockades or closures of an area. In each [*389] case, there is a very thorough description of Israeli legislation and case-law, with consideration also of the applicability of international humanitarian law. The issue raised by the latter is often whether the measure amounts to a collective punishment contrary to articles 33 and 53 of the Fourth Geneva Convention. A generous interpretation is accorded both by the Israeli courts and the author, so that there is no finding of breach, for example, in respect of house demolition on the basis that the objective is to make the terrorists ‘aware that . . . they are endangering not only themselves but also the domicile of their families’ (p.107). Given that terrorists are by their nature willing to sacrifice their lives, let alone their property, the main effect of demolition is not, as claimed, the deterrence of terrorists, but a collective punishment so that communities will be stimulated to act against continuing terrorism. Such an interpretation is far from fanciful. It motivated an English magistrate, Timothy Workman, to issue on 10 September 2005 an arrest warrant on charges of war crimes against Major General (retired) Doron Almog in relation to the destruction of 59 houses in Rafah refugee camp on 10 January 2002. Almog landed at Heathrow Airport but did not disembark and returned to Israel on being warned by Israeli officials. Some Israeli organisations, such as the Israeli Committee against House Demolitions, also depict the process as a punishment and fear that it is yet another obstacle to peace. Added to the dubious legality of the process, the Israeli Defence Force has discontinued the policy of house demolitions, following a review in 2005, in view of the uncertain overall effectiveness of the tactic (Israel Ministry of Foreign Affairs, 2005).

Next, Chapter 5 considers ‘Administrative Detentions and the Use of Terrorists as Bargaining Counters.’ The Israeli administrative detention system is given fairly clean bill of health, but comparisons with the UK are again faltering. It is wrongly implied that arrest powers or control orders under the anti-terrorism laws are equivalent (pp.130, 133), and there is no consideration as to whether the UK system of special advocates overcomes the severe weaknesses in the Israeli system of the inability on the part of the defence or even the judge to examine the evidence (p.126). There is also comparison with US detention powers, but while Gross’ description of judicial review is lengthy, the conditions of detention and military commissions are not fully explored.

The idea of holding terrorists as bargaining counters especially arose after the capture of Israeli military pilot, Ron Arad, in 1986. Israeli forces captured Sheik Abdul-Karim Obeid, a member of the Lebanese Hezbollah, in 1989 and Mustafa Dirani, a leading member of the Amal Movement, in 1994. The Israeli government claimed they were being held in order to find out information about Arad, but they were released in 2004. Arad’s treatment was a cruel breach of international law on the part of his captives, but the Supreme Court of Israel (ANONYMOUS, 2000) and many others would disagree that hostage-taking in response can be justified (as is contended by Gross, p.155, and by the Imprisonment of [*390] Illegal Combatants Law 2002) under article 34 of the Fourth Geneva Convention or under the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979 (18 I.L.M. 1456).

Related subjects are the ‘Use of Civilians as Human Shields’ (Chapter 7) and ‘Thwarting Terrorist Acts by Targeted Preventive Elimination’ (Chapter 8). If one believes in the spurious balance of rights versus security, then the sacrifice of the innocent in these ways can be contemplated. Certainly, Gross (p.201) does not accept that absolute rights are absolute. It is also remarkably easy to reassess the innocent as guilty. For example, those who refuse to leave an area of fighting are presumed to be providing shelter to fighters (p.207); is it just possible that they are too frightened to move or that they fear that they will never be allowed home again? It is, however, accepted that some Israeli Defence Force practices, such as asking civilians to move suspicious objects or to convey messages to fighters, have breached articles 27 and 51 of the Fourth Geneva Convention (p.209). The issue of ‘preventive elimination’ equally depends on the re-categorisation of civilians, such as Sheikh Ahmad Ismail Yassin who was killed in 2004 by an Israeli helicopter gunship, an action condemned as unlawful by the UK Foreign Secretary. There are also issues of levels of proof in a pre-emptive attack and the proportionality of the response. In years gone by, Israel would go to the ends of the earth to ensure those who had committed grievous crimes against humanity were brought to the doors of the criminal courts, as in the case of Adolf Eichmann in 1961. Nowadays, justice consists of dropping a one ton bomb in the general direction of the suspect, a definitive substitute for judge and jury which befell another HAMAS leader, Salah Shehade, in 2002 and which Gross estimates to have been perhaps excessive (p.238).

The impacts of security laws on the rights to privacy are the subject of Chapter 6. Since the balancing approach is again adopted, it seems that few incursions are off-limits or beyond the moral pale. So, there exists in Israel an array of ‘extremely broad and comprehensive’ powers (p.170) to search vehicles and property, to search persons and to take bodily samples, to intercept communications, and to conduct surveillance. Comparisons with the equally complex catalogue of measures in the UK and the US (not including Presidential Orders on the subject) are relatively brief and patchy. The fair point is made that Israel more proportionately distinguishes security situations from criminal investigations (p.191), and Gross perceptively notes that the security versions often do not grant extra powers but repeat established powers but with fewer safeguards (pp.191, 192). But it is far from evident that Israeli practices, which are not overseen by judicial commissioners or legislative committees, are really as superior as claimed.

While the description and analysis of Israeli law represents the principal strength of the book, there are some limitations and drawbacks in this aspect. [*391]

First, Gross does not shy away from the perennial difficulty of the definition of ‘terrorism’ and in fact dedicates Chapter 1 to ‘What is Terrorism.’ He emphasises that the core of terrorism is ‘the unique amoral qualities of its motives’ (p.13). This contention cannot stand serious examination. For example, the motive of the Irish Republican Army is a united Ireland and the end of the partition which created Northern Ireland. There is no inherent immorality in that motive, and it is one which has from time to time been shared by a majority of the population in Britain. What might be immoral is either to seek to achieve the goal by immoral ends (such as violence or intimidation) or wholly ignoring other rights to human security which may be affected, such as self determination (assuming that the pro-Unionist Northern Ireland Protestants can be treated as a ‘people’ for these purposes). There may be some forms of political motive which are ‘immoral’ per se. For example, the European Court of Human Rights has condemned the pursuit of Sharia Law and other aspects of Islamic fundamentalism (REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY [2003]), so it might be possible to depict as inherently immoral a movement such as al Qa’ida. But the causes of the Palestinians and the neighbouring enemies of Israel are in a different situation under international law with respect not only to their methods as a whole but also to their claims to self-determination. The author does tackle in Chapter 2 the subject of ‘The Laws Of War Waged Between Democratic States And Terrorist Organization,’ though much more of it is couched in terms of the US’ ‘war on terror’ than in terms of Palestinian claims. Gross has sympathy for the US stance on the grounds that current international law does not provide an adequate response to terror (p.58). He has less sympathy for Protocol I to the Geneva Conventions 1977, article 44 of which he calls ‘a mockery of the international law’ (p.50), though, contrary to his assertion, it was endorsed by ratification in 1998 by the UK, albeit accompanied by declarations. Other possible obligations of states to civilians, such as in international human rights law, are not often considered in the book.

Issues which are examined in more depth are Israeli legal definitions of terrorism, such as those contained in the Prevention of Terrorism Ordinance 1948 and the Prohibition on Financing Terrorism Law 2005, and also in the 1998 Rome Statute of the International Criminal Court. The latter, of course, contains no explicit definition or offence of terrorism. The article 7 offence of crimes against humanity could address some acts of terrorism, but its absence of reference to motive is criticised (p.24) even though an emphasis upon motive and not on the kind of violence which kills 3,000 civilians at a stroke would give a platform in law to those who wish to justify their extremism. Gross concludes that it is not practical to have a single definition, but he then manages to delineate some core characteristics (p.24). These suggest that law can be used to define terrorism, and the more interesting questions concern the biases inherent in any definition and its legitimate uses. [*392]

Second, the range of subjects Gross tackles is very good, but it is not comprehensive. There is scant mention of the West Bank separation/segregation barrier, and neither civil liability nor the disbarment of political candidates is considered (compare Mersel 2006).

Third, Gross’ critical stances sometimes lack depth. A constant theme, already noted, is the notion of balance between the safety of the state and of the citizen set against human liberties (a refrain taken up at the outset in the foreword by Chief Justice Aharon Barak (p.xi) and then repeated by the author (p.27). Yet, there is no clear calibration on this particular balance which enables a judge, a government minister or a military commander to know when an appropriate equilibrium has been reached, nor should one assume that the loss of liberty automatically tips the balance in favour of security. It has been argued elsewhere that this spurious balance should be abandoned in favour of a proportionality test based around the concept of human security, emphasising the interests of individuals – both to security and liberties – rather than those of the state (Walker 2006). It might also bolster the contention that absolute rights are indeed absolute so far as the state is concerned. Other deontic principles for counter-terrorism laws, with emphasis on the rule of law, are likewise not fully explored, nor is it made clear what is entailed by the statement that the state should adopt the role of a ‘defensive democracy’ or ‘militant democracy’ (p.6).

Despite the foregoing criticisms, Gross’ description of Israeli anti-terrorism laws is first rate. However, a lower degree of commendation can be awarded to his descriptions of other jurisdictions or drawing of appropriate comparisons. The comparisons are rather uneven, appearing at length in some chapters (such as Chapter 3) and hardly at all elsewhere (Chapters 7 and 8). Furthermore, like is not always compared to like, as already noted in regard to the confusion between arrest and detention powers.

Finally many of the conclusions of a comparative nature are not well supported by evidence. The High Court of Israel may indeed have a better record of review than the US Supreme Court (p.250). However, the record of the English courts on detention without trial and control orders is equally as impressive if not more so in terms of the depth of scrutiny of security evidence, and recent decisions seem to have extended justiciability in a way which rivals the Israeli experience. There may be a growing willingness to contemplate force in interrogation in US procedures (p.251), but there is little evidence of its official endorsement in the UK, where the trend is much more towards forensic science or surveillance investigation. Furthermore, the UK courts have developed a much stronger stance against discriminatory treatment than is apparent in Israel (contrary to the assertion at p.251).

An ultimate dissatisfaction with the analytical and critical aspects of this book arises from some of the broader issues relating to democracy and discrimination. The clear assumption is that Israel is to be counted as a [*393] democracy on a par with the UK and the US. It is indeed commendable that a country so enmeshed in conflict from the time of, and because of, its very foundation should be able to maintain a high degree of vibrancy in its politics. But this democracy has not accorded in equal measure for all under Israeli rule. Others, such as Shahak (1994) have criticised the discriminatory nature of the Israeli occupation of Palestinian territories and have concluded that Israel is consequently not a true democracy. These inequalities have direct impact on security measures. For example, the powers to impose closed or protective areas may be applied with scrupulous due process and may even at a stretch avoid being depicted as a collective punishment contrary to international law (though this interpretation stretches all credulity when the power was applied to close the whole of the West Bank to all refugees after 1967: p.117). However, one might ask whether, if, for example, a few hundred Jewish settlers had not in the first place been allowed into the centre of Hebron (with a population of around 150,000 Palestinians), it would have become necessary to trigger legal powers to close down 42% of Palestinian residential properties and 77% of Palestinian commercial properties in the vicinity (B’Tselem 2007). No doubt, the resultant security response and other such examples contribute to what in another troublesome context was called a ‘Factory of Grievances’ (Buckland 1979).

Finally, one must doubt whether an approach so focused on security has drawn all the lessons available from the UK experience. For sure, that experience includes the grisly Defence (Regulations) 1945. But a more recent version of combating terrorism has also included a Peace Process in Northern Ireland and involves a strategy which emphasises the prevention of conflict by tackling disadvantage, supporting reform and engaging in the battle of ideas, as well as harder-edged policies in pursuit of terrorists (Home Office, 2006). Is not an ability to resolve the political aspects of terrorism as important as an ability to eradicate its violence?


REFERENCES:
B’Tselem and Association for Civil Rights in Israel. 2007. “Where Silence Reigns: Israel’s Separation Policy and Forced Eviction of Palestinians from the Center of Hebron.” Jerusalem. Available online at: http://www.btselem.org/Download/200705_Hebron_eng.pdf .

Bennett, His Honour Judge H. G. 1979. “Report of the Committee of Inquiry into Police Interrogation Procedures in Northern Ireland” (Cmnd.7497, London).

Buckland, P. 1979. THE FACTORY OF GRIEVANCES: DEVOLVED GOVERNMENT IN NORTHERN IRELAND, 1921-39. Dublin: Gill & MacMillan.

Home Office. 2006. “Countering International Terrorism” (Cm.6888, London). [*394]

Israel Ministry of Foreign Affairs, Continued easing of restrictions for Palestinian population and IDF policy changes, 20 Feb 2005, http://www.mfa.gov.il/MFA/Government/Communiques/2005/Continued%20easing%20of%20restrictions%20for%20Palestinians%20and%20IDF%20policy%2020-Feb-2005)

Mersel, Yigal. 2006. “Judicial Review of Counter-Terrorism Measures.” 38 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW & POLITICS 67-120.

Rudolph, Harold. 1984. SECURITY, TERRORISM AND TORTURE: DETAINEES’ RIGHTS IN SOUTH AFRICA AND ISRAEL: A COMPARATIVE STUDY. Cape Town: Juta.

Shahak, Israel. 1994. JEWISH HISTORY, JEWISH RELIGION: THE WEIGHT OF THREE THOUSAND YEARS. London: Pluto Press.

Walker, Clive. 2002. A GUIDE TO THE ANTI-TERRORISM LEGISLATION. Oxford: Oxford University Press.

Walker, Clive. 2006. “Clamping Down on Terrorism in the United Kingdom.” 4 Journal of International Criminal Justice 1137-1151.

CASE REFERENCES:
ANONYMOUS v. MINISTER OF DEFENSE, 7048/97, 54(1) P.D. 721, 741 (2000)

R v MCCORMICK [1977] NI 105.

REFAH PARTISI (THE WELFARE PARTY) AND OTHERS v. TURKEY, App. nos. 41340/98, 41342/98, 41343/98 and 41344/98, 2003-II).

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©Copyright 2007 by the author, Clive Walker.

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MARTHA STEWART’S LEGAL TROUBLES

by Joan McLeod Heminway (ed). Durham, North Carolina: Carolina Academic Press, 2007. 416pp. Paper. $35.00. ISBN: 9781594602368.

Reviewed by David O. Friedrichs, Department of Sociology/Criminal Justice, University of Scranton. Email: friedrichsd1 [at] scranton.edu.

pp.383-386

The legal case against Martha Stewart, the celebrity lifestyle entrepreneur and media personality, originated with her sale of ImClone stock on December 27, 2001, after receiving a call from her broker that suggested the sale was based upon insider information. It was surely among the highest profile white-collar crime cases of the recent era. The accused has been a highly visible celebrity for many years, the founder of a vast “lifestyle” media empire, with her own magazine, TV show and best-selling books, as well as a successful home furnishing products line. If on the one hand she has been widely admired, she has also been widely mocked, envied and disliked. In a celebrity-obsessed culture, the immense media coverage when she was investigated for alleged insider trading was quite predictable. Although by some criteria the specific case against her was quite limited in scope – certainly in comparison with other cases emerging during this period such as those involving Enron and WorldCom – the profound contradictions between Martha Stewart’s standing as a phenomenally successful businesswoman and source of inspiration to vast numbers of people attempting to enhance their lifestyle, and the prospect of her status as a convicted felon and prison inmate, was inevitably fascinating to a large swath of the American public.

The book under review has thirteen chapters (or articles) that focus upon the Martha Stewart prosecution as a basic point of departure for exploring a range of legal issues brought into especially sharp relief by this case (with the exception of one of the editor’s contributions, the chapters are derived from previously published articles in law reviews.) Of course this book also quite transparently exploits Martha Stewart’s celebrity and the vast media and public interest in her case as a hook to entice students and other interested parties to engage with legal issues that otherwise might be regarded as quite dry and “technical.” The inclusion of several “discussion questions” at the end of each chapter is intended to enhance the pedagogical value of the book.

The editor, Joan McLeod Heminway, contributes four of the thirteen chapters, in addition to her editorial input. In the opening chapter, she explores possible sources of bias in the decision to investigate and prosecute the case. These possible sources of bias include Martha Stewart’s status as a female, Democrat, and public figure. The complexities and the ambiguities of insider trading law provide many opportunities for enforcement bias, as do the multiple enforcement processes available in cases of this nature. Heminway calls for a more thorough [*384] consideration of such biases as a basis for possible policy reforms.

Of course, conscious and subconscious biases have always been a part of investigatory and prosecutorial decision-making for the whole range of criminal cases. At least some significant proportion of conventional crime cases have been pursued due to racial, ethnic, class and gender-related biases, as well as political considerations (e.g., the political benefits of pursuing cases that have generated high levels of public fear and concern). Although Heminway specifically disavows as an objective promoting sympathy for Martha Stewart, she discloses in a footnote that she has been a subscriber to MARTHA STEWART LIVING and a purchaser of Martha Stewart products. There is at least a suggestion here that her own considerable interest in the case is not simply a function of the legal issues it raises but also of her own sense that Martha Stewart got a raw deal. My own biases, if anything, are on the other side of the equation. Wealthy celebrities such as Martha Stewart typically have been happy to accept many special privileges accorded those with their status (e.g., the best tables at high-end restaurants). In some circumstances, of course, the special attention accorded celebrities will not be welcome. Indeed, it is exceptionally foolish for high-profile pubic figures to engage in illegal (and unethical) behavior, both because they are especially vulnerable to being caught and are likely to pay a high price when they are. That prosecuting such cases will reap millions of dollars of free publicity for a claim of wrong-doing meriting penal sanctions surely motivates prosecutors. They may a hope that one of the principal objectives of criminal prosecution – a deterrent impact – will be realized.

Stewart’s brief time in prison came about as a result of a stock transaction saving her from a loss of some $45,000 on her ImClone stock. This is a virtually trivial sum of money in relation to multi-billion dollar losses associated with some major white-collar crime cases, as well as in relation to her wealth (in the hundreds of millions). But one can also note that some ordinary investors not privy to a “heads up” on Imclone’s impending stock decline sustained real losses by purchasing Stewart’s dumped stocks. Of course, from another vantage point, countless conventional offenders have received long prison sentences as a result of property crimes involving a fraction of $45,000.

The remaining chapters in the first part of the book also address pretrial enforcement issues relevant to a criminal action. Ellen Podgor identifies many different bases for prosecutorial discretion and expresses a concern that when someone like Martha Stewart is prosecuted for telling lies – and not the original alleged wrong-doing – other individuals could be deterred from voluntarily speaking with government officials. Michael Seigel and Christopher Slobody note that, due to finite resources and alternative regulatory action, white collar crime prosecutions are inevitably quite limited. They identify some of the rationales for prosecuting Martha Stewart, but also believe that multiple, redundant and over-lapping charges are an issue that [*385] could be more effectively addressed by judge-supervised oversight. For Geraldine Szott Moohr, if the broad dimensions of prosecutorial powers present defendants such as Martha Stewart with real challenges, less well-off defendants are even more vulnerable, and this legitimate concern should be addressed. In a closing contribution to this section, Editor Heminway poses the question of whether Stewart’s misrepresentations were “material” as defined by law. She suggests that possible legislation or judicial clarification of the relevant insider law rule (10b-5) should be considered, along with a rethinking of the original 1934 Act’s supposed protection of investors in relation to non-corporate executive information.

The second section is devoted to substantive legal issues relevant to the criminal action. Stuart Green reviews the varying moral and legal judgments that arise in a range of white-collar crime cases, and the specific underlying moral concepts for “cover-up” crimes. He makes some useful comparisons between different high-profile perjury cases (e.g., involving President Clinton, and more recently Lewis “Scooter” Libby) in terms of levels of egregiousness. The Martha Stewart case is located in relation to other such cases. Green notes the usefulness of prosecuting public figures for deterrent purposes. Ellen Podgor, in her second contribution, explores the legal concept of materiality in some depth, and wonders whether the failure in the Stewart case of providing the jury with a “materiality instruction” sacrificed important judicial values. Heminway, in her third contribution to the volume, also explores a legal notion – scienter, or awareness of the falsity of statements – that failed to go to the Stewart jury, and raises the question of whether an insider should in fact be found guilty under the relevant rule (10b-5) of lying in public about personal transactions. Donald Langevoort also explores scienter, and suggests that the Stewart Court seems to have misunderstood the relevant rule. He notes that culpability in alleged securities fraud cases is often difficult to parse out, with the degree of fraud falling along a continuum, and, in his view, Stewart’s actions may have fallen short of meeting the scienter requirement. In her fourth and final contribution, Heminway examines materiality specifically in relation to the substantial likelihood of the actions of a “reasonable” investor being influenced by the accused’s words or actions. In the Martha Stewart case, materiality in this sense was never considered by the Court due to its actions on other matters, but Heminway suggests that Stewart’s actions were not material as understood by the relevant law.

The final section includes three articles that address legal matters outside the criminal action. Kathleen Brickey examines some of the issues that arose in relation to the jury, post-trial allegations of prosecutorial misconduct (e.g., in relation to expert witness perjury and the withholding of exculpatory evidence), and sentencing. Some misrepresentations by a high-profile juror, the withholding of exculpatory evidence in relation to expert witness perjury, and the alleged hardship to her company that would arise from sending [*386] Stewart to prison, were all claims that did not determine outcomes in this case. Altogether, Brickey reviews some dimensions of Stewart’s transformation from “icon to ex-con.” Jeanne Schroeder undertakes an in-depth exploration (drawing upon Lacan among others) of the relevance of the “sin of envy” and of jealousy in understanding the prosecution (or persecution) of Martha Stewart. Certainly her “annoyingly smug perfectionist personality” played a role in the widely diffused public schadenfreude (joy in her misfortune). Schroeder suggests that the law should discriminate between valid forms of envy of insider advantages and purely human forms of jealousy toward the privileged in the formulation and application of insider trading law. Altogether, the existing misappropriation law seems incoherent to her, and the insider trading law an example of de facto common law crime. As someone currently engaged with the issue of excessive executive compensation in relation to white-collar crime, I was especially interested in the comparison of this issue to the abuse of insider information. And finally, a concluding article by Lisa Fairfax examines the important matter of the responsibilities of corporate directors in cases like Stewart’s, and the formidable problem of director conflicts of interest. Historically, the Delaware courts where so many corporations are chartered have interpreted conflict-of-interest narrowly in this realm, according directors broad leeway. Fairfax calls for more stringent consideration of the many factors (including board room culture) that compromise the independence of corporate directors. The Stewart case specifically failed to consider the conflict-of-interest issues in relation to the actions of corporate directors.

Law professors engaged with the doctrinal issues addressed in this volume are likely to find many points of interest in the various chapters. The typical reader of the LAW & POLITICS BOOK REVIEW, however, will have a much more selective interest. Certainly the prosecutorial pursuit of celebrity cases has some significant political and cultural ramifications, as was suggested above. As a potential course text for students, some practical considerations compromise adoption prospects: e.g., that in certain important respects the case against Martha Stewart was atypical, the inevitable elements of repetitiousness on particulars of the case between chapters, and the somewhat limited scope of legal issues addressed. Altogether, it is good to have these law-focused articles on such a celebrated case bound together in a single volume.

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©Copyright 2007 by the author, David O. Friedrichs.

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CAN HUMAN RIGHTS SURVIVE?

by Conor Gearty. New York and Cambridge: Cambridge University Press, 2006. 190pp. Hardback. $70.00. ISBN: 9780521866446. Paper. $22.99/£12.99. ISBN: 9780521685528.

Reviewed by Fiona de Londras, Centre for Criminal Justice and Human Rights, University College Cork, Ireland. Email: fionadelondras [at] mars.ucc.ie.

pp.376-382

In the 2005 Hamlyn Lectures, presented as three essays in CAN HUMAN RIGHTS SURVIVE?, Conor Gearty delivers a number of skillfully crafted questions about the future (and past) of human rights as a movement, a body of law, a political reality, and a limiting force on state action. In doing so Gearty considers what he perceives to be three of the main areas that must be dealt with in order for human rights to properly come to terms with the challenges that face it in the future, such as the ethics of genetics, the environment, the start and end of life, and so on. These three challenges are what he terms the crisis of authority, the crisis of legalism and the crisis of national security.

The concept of rights has always endured a crisis of authority – the notion that we ought all to love one another, take care of one another (or at the least not obstruct each other in taking care of ourselves) and treat one another with respect is by now ubiquitous, but Gearty’s primary concern in his first essay is with the why of these pronouncements. The crisis identified by Gearty and his attempts to resolve it in some way are worthy of close attention, for unless the why of human rights and the basis for their authority can be answered, then the move to recognising dignity on the basis of attributes (epitomised by the division between ‘good’ and ‘evil’ in contemporary counter-terrorist narratives) is difficult to resist and threatens to undermine the ‘equality of esteem’ that is central to the entire project of rights. Unlike Bentham, Gearty does not identify rights as obstructions to well-intentioned utilitarian goals; but neither does he adopt a Dworkian perspective that sees rights as trumps over other concerns. Rather Gearty appears to perceive of rights as human endowments that must necessarily be taken into account in conjunction with other legitimate concerns in all law and policy making and implementation. The crisis of authority makes it difficult to persuade those who make law and policy that rights are worthy of a permanent, prominent and real (as opposed to merely facial) place in their considerations and are not merely to be taken into account when they do not make economic or security concerns too difficult to achieve. This risk is all the more real, Gearty contends, when the concept of rights has achieved its prominence without ever staking out an agreed and objectively justifiable explanation for its role in the modern cosmological conversation.

Gearty is undoubtedly right in identifying a crisis of authority, and his brief survey of a number of philosophical and legal conceptions of rights immediately excludes any possibility that the crisis emerges from a [*377] lack of contemplation. Rather the crisis emerges from the fact that human dignity – upon which the modern project of rights is based – is so highly contested in terms of its source. Is it mere humanity, in biological terms, that endows us with this dignity and, if it is, should we not allow that biology to govern and allow natural selection and survival of the fittest to determine the extent of the individual dignity to which all persons are apparently entitled? This Darwinian concept is clearly incompatible with human rights ideals, although Darwin’s theory of evolution had an undoubtedly important impact on the human rights project by proving that, in physiological and chromosomal terms at least, all human beings are essentially the same, having all emerged from the same steaming cesspool at the same time. However, once one rejects an evolution-based concept of dignity, one is then left floundering for other explanations – all of the alternatives identified by Gearty and, indeed, more broadly in the literature, arguably suffer the same Kelsenian flaw: they are all based on the concept of the individual as dignified and deserving of respect without necessarily explaining why the individual deserves and holds this dignity – the Grundnorm remains elusive. For some, the only plausible Grundnorm basis for the doctrine is sacredness (or the idea that the dignity arises from creation by God), although that too is improvable. Gearty dismisses the religiosity/sacredness approach rather swiftly for the simple reason that religious pronouncements do not have the same rhetorical power in a world confounded by the impossibility of absolute truth. This dismissal is disappointing, for Gearty’s perspective on the work of human rights and religion scholars, such as Michael Perry (1998) and Abdullahi An-Na’im (1990), would have been interesting. Gearty does, however, implore human rights advocates to consider ways in which new and dynamic strategic alliances can be made with the world’s religions, given the recent resurgence in devoted religious belief. This appears to be central to the survival of human rights, and Gearty is to be commended for his recognition thereof in a discipline that so often reveres only the ‘new religion’ of secularism and tends to reject religion as an obstruction to effective rights protection. Gearty does not resolve the crisis of authority in this book – indeed one might suggest that it is essentially irresolvable – but he usefully and candidly examines it and considers various possible approaches to its resolution in a manner that is both insightful and direct – characteristics by which this work is enriched throughout.

The second crisis considered by Gearty is that of legalism. In Chapter 3, Gearty considers the opportunities afforded by enshrining rights in law but also considers the potential pitfalls of seeing human rights and the discourse of rights as purely legal notions. Gearty starts the chapter from the premise that human rights law has “shed its activist personality and turned into the state” (p.62). Although this premise may appear unsustainable at first, when one broadens consideration to include domestic bills of rights, for example, as well as international human rights treaties, the premise rings true. The arguments raised by Gearty in relation to [*378] the crisis of legalism are of vital importance to those who wish to achieve enforceability and effectiveness of human rights standards. The very concept of enshrining human rights within the politico-legal system is subjected to scrutiny by Gearty, who describes it as a “Faustian bargain” in which we allow the human rights perspective, with its concentration of ethics and equality of esteem and flourishing and love, to be placed in a position where it must “compete in the political market-place” (p.67). This, as Gearty rightly says, allows the internal principles of human rights to be debated and subjected to political and legal whimsy instead of operating as moralesque rules that tell us what is right and wrong and identify the acceptable boundaries of social discussions and proposals.

The risk that the legalism of human rights brings in this context is ably demonstrated in contemporary discourses on torture. While international human rights law identifies the prohibition of torture as an absolute jus cogens right, the legalism of human rights has resulted in discourses about the acceptability of torture to limited degrees and in limited circumstances. This is epitomised in the work of Alan Dershowitz (2002) who does not condone torture but simply urges law to recognise that it happens and, in an attempt to limit it in scope and in scale, to try to regulate torture through the use of a system of judicial warrants. If human rights law played the external role suggested by Gearty, such a discourse would be more or less inconceivable, for human rights would step in to say that torture is absolutely prohibited and energies ought to be expended on preventing – rather than regulating – its occurrence. When human rights standards are legalised, however, they are up for discussion along with all of the other considerations in law and policy making, arguably holding no higher esteem than economic considerations and voter desire.

Gearty also identifies the legalism of human rights as a threat to politics. In his view, the internalisation of human rights norms within legal systems has resulted from and helped to perpetuate the false dichotomy between politics and law, while at once over-legalising politics by the use of human rights norms to interfere in political processes in ways that are not always benign. Politics has now become more about the censored voice of the people as distilled through legal processes than about activism, meaningful participation and civil society. In Gearty’s view, the legalism of human rights norms can result in a political unwillingness to criticise developments of this kind. The parliamentarian who objects to a court decision that his opponent’s ability to buy many times more media time than he because there are no limits on private contributions to political campaigns as a result of the right to free expression, for example, is likely to be portrayed as anti-rights, whereas in fact he is more likely to be anti-malignant-application of rights norms. As Gearty says “[a] particularly unfortunate consequence of the legalisation of what are effectively political decisions is that the dressing up of them in constitutional or ‘human rights’ form deprives the political [*379] community of the opportunity properly and critically to comment or engage with them” (p.84). Whether this result flows from the internalisation of human rights norms within the legal system or from the abuse of the legal system by big-monied interest groups and, on occasion, ‘moral entrepreneurs’ is somewhat tangential to Gearty’s critique it seems, for neither explanation would be possible without the legalism of rights.

This legalism also has the potential to affect the judiciary negatively, however, by overly politicising law. Any legal system that has entrenched concepts of rights can not be completely depoliticised – to say otherwise is to perpetuate a “Lockean delusion” according to Gearty (p. 86). The book uses some examples from the United States Supreme Court to illustrate this point, although this certainly is not the only system in which the trends identified might be said to be present. The legalism of human rights norms enables judges to make ‘politicised’ decisions such as ROE v. WADE (1973) but then makes the future of that politicised decision a central feature in the future of the Court and, in particular, in the future appointments to the Court. A Justice’s commitment to human rights norms may also put that individual at some risk from those whose political beliefs and perspectives are completely at odds. CAN HUMAN RIGHTS SURVIVE? features extracts from an interview with Justice Blackmun about the impact of his judgment in ROE on the rest of his life, including the need for body guards and relatively frequent receipt of death threats. The more recent examples of ROPER v. SIMMONS (2005) and LAWRENCE v. TEXAS (2003), after which members of the Supreme Court received death threats for referencing international human rights law and Congress considered an Act to preclude the use of ‘foreign law’ in the U.S. Supreme Court, act equally well in the proof of Gearty’s hypothesis: the incorporation of human rights into politico-legal discourse in its current form is detrimental to both.

Gearty takes the somewhat dangerous step of suggesting a solution – dangerous because when one proposes a model it is all too easy for critics to focus on the technical flaws therein rather than the principled arguments therefore. He concludes that the solution lies in something along the lines of the UK Human Rights Act 1998 – a bill of rights through which international norms are made enforceable in terms of obligating state organs to act in compliance therewith, but where courts can not strike law down on the basis of incompatibility: they merely declare it incompatible and let the political system do its work. The rights incorporated are already subject to limitation where necessary and proportionate within the European Convention on Human Rights, with some rights being non-derogable. The incorporation takes place by means of a political process (i.e., the passage of an act of parliament), and the incorporation can be undone by a simple majority through a repealing act, although the political system itself is likely to resist any such moves if the human rights norms are sufficiently internalised. Although Gearty’s proposal appears sensible and well thought out, there are some practical critiques that [*380] can be offered – the proposal does not deal with situations where a legal system may require sub-constitutional incorporation because the constitution itself has a Bill of Rights (as happened in Ireland), and the New Zealand Bill of Rights offers a counter narrative to the success of the UK Human Rights Act that is not fully handled in the book (Erdos, 2007) – however the model proposed appears to be more concerned with what the ingredients of successful legalism are, rather than what the technical format ought to be. In this it answers well the difficulties with constitutional rights legalism that had previously been outlined.

The final crisis identified by Gearty is the crisis of national security. The themes raised by Gearty in this chapter are well known, particularly in the contemporary world which appears to be dominated by a security paradigm emerging from a hyper-power in a world of uni-polarity. In such a milieu it is perhaps unsurprising that human rights – which are often falsely juxtaposed with security concerns – are ‘at risk.’ Gearty, however, uses his expertise in the law and politics of terrorism to show that the difficulties faced in today’s world are no different from the counter-terrorist difficulties that countries have traditionally faced, and clearly locates the current ‘War on Terrorism’ in the Israeli-Palestinian conflict in which the language of civilisation v. barbarism was sophisticated on the contemporary global political front. One might argue that Gearty overlooks the ‘newness’ of contemporary terrorism, however this is to assume that the scale of one’s potential for destruction makes a terrorism new – terrorism continues to operate on the same bases and with the same ingredients (belief, chaos, fundamentalism, non-discrimination between civilians and combatants, and the like) now as it has long done in Spain, Northern Ireland, Columbia, and so on. Gearty also shows that the risks to which human rights are exposed by counter-terrorist laws are also well-worn trends – “[t]errorism trends challenge both the core proposition underpinning human rights [i.e. dignity and esteem] and each of its . . . manifestations. In place of equality of esteem they offer…inequality of esteem, judging people not by the fact that they simply are but by where they are from and by which culture or faith it is that they belong” (p.103).

Gearty’s examination of the crisis of national security is particularly useful for its focus not only upon the substantive rights protections that tend to be undermined and violated by counter-terrorism laws, but also on the institutional and procedural violations of the rule of law and the dictates of democracy. Both the Patriot Act (USA) and the Anti-Terrorism, Crime and Security Act 2001 (UK) attest to this – both were rushed through national parliaments in the wake of 11th September, represented as necessary for the preservation of democracy (although deeply offensive to notions of due process), and heavily weighted in favour of the state. Gearty usefully hints at an anxiety or panic-centric analysis of these trends, reflecting on “executive-induced hysteria” (p.106), but his main focus is on the moral rhetorical power of labeling something or someone as ‘terrorist’ [*381] when the concept is devoid of any objective definition. Once the moral work of labeling has been done, space is created in which human rights can become negotiable concepts, even in areas – such as the prohibition of torture – in which global consensus had previously been reached. This final essay in CAN HUMAN RIGHTS SURVIVE? usefully draws together themes from Gearty’s earlier work – the allowances for ‘national security’ built into human rights law, the effect of populism on lawmaking, the continuity of alleged ‘terrorist threats’ in modern states, the perpetuity of ‘emergency’ and so on – and presents a concise but comprehensive set of reflections on the risk to human rights in the midst of a security paradigm. For Gearty, the answer to the contemporary challenge to human rights is for the human rights ‘community’ to “stand firmly against [the] kind of distortion of [human rights’] essence” (p.136) that reintroduces the dialogue of ‘good versus evil’ into the politico-legal arena. This suggestion may appear somewhat obvious; however, the current body of ‘human rights’ scholarship that, for example, seriously discusses the regulation of torture and supports executive power without judicial oversight shows the necessity for clear, straightforward and well argued suggestions of this nature.

It is the clarity and comprehensiveness of Gearty’s argumentation, together with the controlled passion and graceful articulacy with which it is expressed, that commends this short book so highly to all of those interested in politics, law and human rights. Gearty does not promise answers in CAN HUMAN RIGHTS SURVIVE?, but in it he engages in impressively thorough considerations of difficult but vital questions. The book is highly commended to both experts and casual readers in the field.

REFERENCES:

An-Na’im, Abdullahi Ahmed. 1990. TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS AND INTERNATIONAL LAW. Syracuse: Syracuse University Press.

Bentham, Jeremy. 1843. ANARCHICAL FALLACIES.

Dershowitz, Alan M. 2002. WHY TERRORISM WORKS: UNDERSTANDING THE THREAT, RESPONDING TO THE CHALLENGE. New Haven: Yale University Press.

Erdos, David. 2007. “Aversive Constitutionalism in the Westminster World: The Genesis of the New Zealand Bill of Rights Act (1990).” 5 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 343-369.

Dworkin, Ronald. 1978. TAKING RIGHTS SERIOUSLY. London: Duckworth.

Kelsen, Hans. 1967. THE PURE THEORY OF LAW (Knight trans.). Berkeley: University of California Press. [*382]
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