HER DAY IN COURT: WOMEN’S PROPERTY RIGHTS IN FIFTEENTH-CENTURY GRANADA

by Maya Shatzmiller. Cambridge, MA : Harvard University Press, 2007. 230pp. Hardcover. $28.95/£18.95/€22.00. ISBN : 9780674025011.

Reviewed by Jill Norgren, professor emerita, Department of Government, John Jay College and University Graduate Center, The City University of New York. Email : jnorgren [at] gc.cuny.edu.

pp.173-176

HER DAY IN COURT is a publication of Harvard Law School’s Islamic Legal Studies Program, part of its series in Islamic Law. In this volume Professor Maya Shatzmiller, a student of Islamic institutions, particularly those of the Maghreb and Andalusia, uses Islamic court documents from fifteenth-century Granada to explore the nature of women’s economic rights. She has produced a “microhistory” of Muslim women’s property rights and equity in this period, examining “the legal entitlements of females to acquire property as well as the social and economic significance of these rights to Granada’s female population and, by extension, to women in other Islamic societies” (p.1).

Property rights are a basic marker of power and status in most societies. Famously, in several of its resolutions, the 1848 Seneca Falls Declaration of Sentiments brought attention to the many ways that American women were denied equal rights to property and, therefore, power and status. More recently, numerous NGOs and charitable organizations have drawn attention to the problem of millions of women around the world in exercising their rights “to own, inherit, manage, and dispose of property” (Human Rights Watch 2006).

Over the past several decades, scholars in many countries have provided important insights about the nature of women’s property rights. Among those who have written about gender and property in Islamic societies are Azizah al-Hibri, Leila Ahmed, Mounira Charrad, Beshara Doumani, John Esposito, Annelies Moors, Amira el-Azhary Sonbol, and Judith Tucker. Some of this literature is nothing short of revolutionary. Recently, for example, the British historian William Dalrymple wrote that Ruby Lal’s 2005 study of the domestic life of the Mughals “is likely to rewrite completely the social history of the period” (Dalrymple 2007).

Shatzmiller’s volume is a welcome addition to this work. Early in the text she defines her approach to property rights: “Not to be confused with property itself or with rights to the land either in Islamic or in other medieval societies, property rights are legal provisions that entitle an individual to acquire, keep, and use property in a secure social and legal environment . . . . Among historians, viewing property rights as an incentive to engage in economic activity suggests a new philosophy of economic history, one that favours targeting the interactions of humans and institutions over employing technical and mathematical models” (p. 2). [*174]

The book’s raw data consists of documents covering the years 1421 to 1496, the last century of Islamic political independence in the Iberian Peninsula. These are records of private transactions, family and commercial deeds that residents of Granada registered in the Islamic court. They were preserved because the incoming Christian administration recognized them for their binding legal power and were eager to safeguard them. What Shatzmiller recognized about the records of these property transactions was the “strong showing” of Granadan women, strong for the sheer number of women represented as well as for the scope of women’s property-related activity. She posits that demographic conditions, namely the greatly diminished male population, caused by a society long at war, encouraged Granadan women to assume a more active and public role in property matters. She also asserts, however, that “the women in Granada clearly could not have done what the documents indicate they did unless their property rights were already in place. Thus the demographic conditions magnified the effect of women’s property rights but did not create them” (p.2). Muslim women’s property rights, she argues, are associated with the birth of “Islamic capitalism” in Mecca. Centuries later, Islamic law recognized varied and important economic rights on the part of the women of Granada.

Shatzmiller constructs the meaning and impact of these fifteenth century documents by using several sources of legal commentary and instruction. She selected the legal annotation of two fourteenth century Maliki authors as authority for the rules on women’s property rights. (Maliki is one of the four schools of fiqh, or religious law, within Sunni Islam). These authors were chosen for their chronological or geographical proximity to the Granadan documents. In addition, she consulted notarial manuals or formularies as evidence of templates easily available for use in diverse legal situations. Fatwas, advisories requested from muftis, were also used by Shatzmiller as a source of historical data and interpretation.

As would be expected, HER DAY IN COURT treats rights commonly identified as women’s rights. The book opens with an examination of the sadaq (money, or property converted to money, promised to the bride upon marriage). It moves on to a discussion of the modes, timing, and content of various gifts received by women. This includes property given to minors, often by fathers, through which parents maintained power over their daughters’ property and access to property income based on guardianship.

A chapter on inheritance law follows. This law, which permitted female family members to inherit, acquire, retain and use shares of family inheritance, is described by the author as inadvertently playing an important role in guaranteeing women’s property rights and in establishing their status as independent property holders.

HER DAY IN COURT also explores the important nexus between women’s bodies and property rights. Shatzmiller asserts that the right to choose whether to practice birth control, the right not to breastfeed, the right to wages for breastfeeding, as well as childrearing, each involved women’s property rights. An Islamic legal framework existed, she [*175] argues, that gave the female body “an independent legal status and that recognized the body as a repository of property” (p.11). In this period Islamic law, and jurists, regarded procreation as a matter of property relations. A husband and wife had rights respecting each other’s body that had to be acquired for each partner to fulfill his or her respective role in procreation. For the husband, engaging in intercourse with a wife was a property right, one that he acquired by paying the sadaq.

Shatzmiller’s treatment of breastfeeding breaks some new ground. Breastfeeding is specifically mentioned in the Qur’an as a remunerated activity, and mother’s milk as a commodity, establishing the activity as a property right. Jurists of all schools addressed the question of whether mothers, married or divorced, could be required to breastfeed their own children. Shatzmiller concludes that jurists viewed a mother’s milk as her commodity, one that could be withheld even with the prospect of a fatal outcome for the child, and that this was evidence that the jurists did not see a mother’s body as a husband’s property.

In her concluding data chapters Shatzmiller explores two additional, important topics: property rights in the context of religious conversion (how conversion by choice versus demand affected these rights), and juridical responses to women’s wage labor and commercial activity. Here she maintains that historians should focus on how well integrated women were in cycles of wealth acquisition and loss, and “how much economic integration benefited from women’s property rights” (p.193).

Summing up her findings, Shatzmiller argues that the record of the fifteenth century Granadan community offers “a model of the strength of women’s property rights and their positive effect on women’s social status and economic progress” (p.15). She holds this opinion despite employing the contemporary feminist analytic framework of law professor Carol Rose (1994) who has argued that women’s “taste for cooperation” may explain the loss of property held by women. (Rose, Shatzmiller writes, posits that “women’s perceived or real weakness in negotiating with related males is encouraged by the law and by the jurists and judges who apply it, leading to systematic inequalities and to the liquidation of women’s assets” (p. 14).) In several instances Shatzmiller draws upon Rose to conclude that male jurists played a role in depriving women of their property rights “by legally supporting society’s expectations that they sacrifice rights for the family’s welfare” (p.59). While the author may have been limited by the nature of her fifteenth century documents in writing more about the role of the jurists, at a minimum, she alerts us to the dichotomy between all law and the social processes by which it is interpreted and applied. Perhaps with more data, she might have drawn a sharper line distinguishing when, and why, jurists and family members succeeded in depriving women of their property rights.

Shatzmiller, an historian of the medieval Islamic world, writes that she undertook this book because “the issue of women’s rights has become, along with jihad, the public face of the Shari’a” (p.15). Although the evidence offered by the records from Granada is limited, she [*176] nonetheless believes that “it seemed appropriate to introduce this kind of evidence into the debate on women’s rights” (p.15). I take her purpose to be twofold. First, she set out to create a public historical record shaped by data rather than the rhetoric of an imagined past. In addition, in her words, she hopes that governments, asked to make policy about sensitive practices, will consult scholarly histories and their data. In discussing female circumcision, for example, she writes that the practice “is not sustainable with reference to the historical sources” (p.15). She stresses that “[I]n these debates, because the Qur’anic verses relating to women’s rights and the commentaries on them are open to various interpretations, the law will remain strictly interpretive unless the historical record is taken into account. Only a truthful and intellectually honest understanding of the past is likely to affect the status of women in the present, which the evidence presented here will surely enhance” (p.16). What needs to be said, however, is that a major debate exists about whether history rather than the Qur’an is dispositive.

HER DAY IN COURT is legal and technical, and is therefore not a book to be assigned in an introductory course, whether in history, women’s studies, or law and society. It is a volume to be read and consulted by scholars concerned, as Shatzmiller writes, with the thread that connects the institutions and practices of the past with contemporary theological disputation, and with local and national policy debates as they affect Islamic and non-Islamic citizens.

REFERENCES:
Dalrymple, William. 2007. “The Most Magnificent Muslims.” 54 THE NEW YORK REVIEW OF BOOKS 26-29.

Human Rights Watch. 2006. “Women’s Property Rights: Violations Doom Equality and Development.” http://www/hrw.org/campaigns/women/property/

Rose, Carol M. 1994. “Women and Property: Gaming and Losing Ground,” in PROPERTY AND PERSUASION. Boulder, CO : Westview.

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© Copyright 2008 by the author, Jill Norgren.

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ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY

by Johnathan O’Neill. Baltimore: The Johns Hopkins University Press, 2005. 281 pp. Cloth, $55.00. ISBN: 9780801881114. Paper, $35.00. ISBN: 9780801887604.

Reviewed by George Thomas, Department of Government, Claremont McKenna College, gthomas [at] cmc.edu.

pp.166-172

When “originalism” reappeared as a potential force within the contours of American constitutional interpretation, Justice William Brennan dismissed it as “arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions” (Rakove 1990, 25). Since Brennan’s somewhat cavalier dismissal – the justice, after all, on occasion appealed to some form of original understanding in his own opinions – originalism has had a powerful pull on questions of constitutional interpretation. Its pull, moreover, cannot be reduced to a simple left-right division. And yet, originalism, which first came on the scene as “original intent,” has itself undergone subtle and important changes. As Professor Charles Lofgren pointed out very early in the debate, “Viewed from the perspective of the founding period, framer intent is easily dismissed – a bogus issue which is best forgotten by both ‘intentionalists’ and their critics.” Professor Lofgren, though, was quick to add: “The reasons running against framer intent supported the use of ratifier intent” (Rakove 1990, 142).

These days originalism, or original meaning as it might most aptly be labeled, is defended largely in terms of the meaning identified by those who ratified the Constitution, which has come to be dubbed “original meaning originalism” (Barnett 2006). No doubt, it would be going too far to say that we are all originalists now. Still, some of the most careful textual exegeses of the Constitution come from left of center scholars who earnestly insist on discovering and adhering to original constitutional meaning (Amar 1998; 2005; and perhaps Balkin 2006). This is the very sort of “interpretivism” that was deemed “arrogant” and “impossible” by Justice Brennan, and yet it has become a central feature of American constitutional interpretation.

Johnathan O’Neill’s excellent book, ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY, traces the “return” of originalism from the middle years of the twentieth century to the early 1990s. In tracing out this intellectual genealogy, O’Neill combines political party history, jurisprudential debates, and Supreme Court opinions in a deft and lucid manner. He is even-handed and brings to life the details of originalism, persuasively illustrating that it is far larger than the conservative politics of the Reagan era, even while capturing how the particular conjunction of Warren Court opinions, constitutional theory and conservative politics [*167] combined to make originalism a potent intellectual and political force.

Situating the return of originalism as a reaction to “modern judicial power” as exemplified by legal realism and pragmatism, O’Neill revisits the jurisprudential debates of the early twentieth century. He focuses in particular on those approaches that sought to limit, confine, and legitimize judicial power in the wake of the “revolt against formalism” and classic legal thought. Before turning to such “process restraint” figures – from James Bradley Thayer to Henry Hart and Alexander Bickel – O’Neill gives a succinct overview of what he calls “textual originalism” from prior to the founding to the early twentieth century. It is this period that gives birth to “modern judicial power,” which is rooted in legal realism. But this, as O’Neill argues, could pull in many directions: If legal realism displaced “classical legal thought,” it did not do so with a coherent or unified vision of its own (p.30). Rather, it included calls for constitutional adaptation, balancing, and judicial self-restraint. Many who accepted legal realism, such as Bickel, also took up the “task of firming up the old foundations and rationales of the American legal-constitutional order or constructing new ones” (p.30).

Here O’Neill covers some familiar territory, but in an extraordinarily useful way that recaptures the full nature of debates that have since been eclipsed, as well as offering an insightful overview of legal and political thought during this period. He is also subtly attuned to the politics that influence constitutional thought in the second half of the twentieth century, but does so in a manner that does not simply reduce law to politics. Yet, he also makes a compelling case that “contemporary originalism” stems from particular political and historical circumstances. Indeed, O’Neill goes so far as to say, “At the outset it must be cautioned that traditional textual originalism and contemporary originalism should not be ahistorically equated, nor should we read modern realist conceptions of law and adjudication back onto the different intellectual self-conception of traditional-era jurisprudents” (p.13). In this, the origins of “contemporary originalism” emerge from an inherited set of problems that beset legal and constitutional thought in the wake of the legal realist critique of formalism. At the center of this debate, from the New Deal settlement forward, was the preoccupation with the (now) all-too familiar “problem” of judicial review.

One powerful answer to this “problem” was found in the “legal process” school that called for “judicial restraint.” In the hands of Henry Hart and Herbert Wechsler, drawing in part on Justice Felix Frankfurter, process became a way to constrain judges and render “neutral” decisions even while accepting the tenets of legal realism. And as O’Neill demonstrates, this preoccupation with neutrality in constitutional adjudication is the central justification for “contemporary originalism”: it is offered as a means to ground and limit judicial discretion. Such a move shares the concerns of legal process scholars as it limits judicial discretion by tethering it to the historical intent of those who ratified the Constitution. It also reconciles judicial review – that countermajoritarian institution – with democracy insofar as judicial review is [*168] limited and confined to those areas that the people clearly marked out by way of constitutional text when it acted as popular sovereign.

In tracing out the intellectual origins of contemporary originalism, O’Neill also illustrates how originalism was never wholly lost; it was thus not some odd concoction of conservatives without roots in American constitutionalism. On the contrary, while O’Neill himself does not push the point nearly as much as he might, contemporary originalists have one foot planted firmly in “the New Deal settlement.” Perhaps more interestingly, O’Neill illuminates how the turn to some form of originalism often found expression in surprising places. Not simply in the guise of Justice Hugo Black – who turned to the original meaning of the fourteenth amendment in his quarrels with Justice Frankfurter over incorporation – but in the scholarship of Robert McCloskey and Edward Corwin. These scholars – more often associated with some version of a “living constitution” – both criticized the Warren Court’s establishment clause jurisprudence in originalist terms. Corwin, for instance, criticized the “unhistorical conception of what is meant by ‘an establishment of religion,’” which yielded decisions out of line with “original intent” (p.72). McCloskey similarly rejected “the incorporation of the establishment clause” as “not in the mind” of the “Framers of the Fourteenth Amendment” (p.87).

These Warren Court era cases, if not always leading to arguments rooted in original meaning, fueled debate about history and the historical turn in constitutional thought. Leonard Levy, while deeply critical of original intent, went so far as to say that the Warren Court “flunked history” (p.92). But should history guide constitutional interpretation? The turn to historical original intent, according to O’Neill, grew out of the crossroads of the post New Deal dilemmas of constitutional theory and the decline of the New Deal coalition; it was a way to limit and cabin judicial decision-making that appealed to both scholarly and conservative critics of the Warren Court. Naturally, in this persuasive telling, the figures of Raoul Berger and Robert Bork loom large.

In turning to Berger’s scholarship, O’Neill reminds us that he was an ardent New Dealer who accepted the progressive criticism of the “Old Court.” Following many in the “process-restraint” tradition, then, he was critical of the Warren Court for returning to the putative “activism” of the pre New Deal Court. As O’Neill writes, “Considered in the history of twentieth-century American jurisprudence, Berger’s originalism elaborated the legal positivist majoritarianism of the Progressive and process-restraint approaches” (p.112). Yet even while skeptical of judicial power as wielded in many Warren Court opinions, one of Berger’s first forays into “original intent” was not only a defense of judicial review, but, in essence, a defense of judicial supremacy; it was also dedicated to Professor Henry Hart “who lit the way” (Berger 1969). While Berger spoke of the intent of the Founders, he most importantly turned to the ratification debates – to what would later be dubbed “original meaning” – to gather the public understanding of the text. Indeed, for Berger it was the public enactment of ratification that made the Constitution binding as fundamental law and [*169] legitimized judicial review based upon the original meaning.

Berger’s defense of originalism was seized on by conservatives as it shared, in part, their understanding of democracy and the role of the Court. In fact, as O’Neill illustrates, Berger and conservatives were following the “restraint” tradition that emerged from the New Deal, from which “legal liberals,” as they came to be called, had broken. Robert Bork, who was connected to the “restraint-process” tradition via his Yale Law School colleague Alexander Bickel, also began to make the case for original intent. And perhaps even more than Berger, he did so from the presuppositions of the “restraint-process” tradition. As Bork put it, “the judge who looks outside the Constitution always looks inside himself and nowhere else” (p.138).

Following the train of Bork’s thought leads us to the vexing question of “what” the Constitution is. As Bork himself noted, originalism, like all theories of interpretation, required a defense that inevitably runs beyond constitutional text. Does such an understanding necessarily form an unwritten part of the Constitution? Bork, for instance, defended originalism as the only defensible theory of interpretation because it was the only truly neutral theory of interpretation (pp.164-165). But this move reduced the whole of the Constitution to obviating the problem of judicial “law making.” In this manner, as O’Neill notes, “Bork revived legal positivism and formalism, not the American natural rights idiom or any other form of moral realism that might generate a more limited form of judicial review. Indeed, Bork attempted to close the judicial door on moral discourse once and for all . . . ‘as an inadequate basis for judicial supremacy’” (p.168).

Yet what if the Constitution rests upon moral principles, rendering them a part of the Constitution itself and not, to borrow Justice Holmes’ formulation, some “brooding omnipresence in the sky.” To take a more down to earth example, judicial supremacy is nowhere identified in the constitutional text; it must be defended from a particular theory of the Constitution. And yet Berger and Bork both defend judicial supremacy as central to the constitutional order. In this manner, originalism raised questions that it did not readily solve. In its modern guise, originalism was offered as a “second best” theory of interpretation that would tame judges by tethering them to a neutral process. Foundational constitutional questions, which might require judges to unfold the principles implicit in the constitutional order, where closed as they seemed to invite open ended judicial lawmaking. Note, though, that such a defense of originalism would turn on whether originalism truly constrained judges. What if it does not?

This might illustrate a profound fissure between what O’Neill calls “contemporary originalism” and the nineteenth century version, which he calls “textual originalism.” It is enough of a fissure, in fact, to raise the question of whether “contemporary originalists” are truly “originalists” (at least, that is, if the nineteenth century versions were). After all, it was these nineteenth century jurists who engaged in the very sort of constitutional reasoning – one feature of which was characterized by critics as [*170] “substantive due process” – of which Bork and Berger were so critical. And yet, a jurist of this nature, like Justice George Sutherland, would insist on originalist ends: “A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time” (BLAISDELL, at 448-49). Sutherland would go on to insist that the Constitution’s meaning was fixed, even while its application, as it brings within it new circumstances, might be altered. This sort of “textual originalism” is all the more intriguing as its expositors, while attending carefully to constitutional text, were most noted for defending rights that were not enumerated within the Bill of Rights. And it is this that has led “contemporary originalists” such as Bork and Justice Antonin Scalia to condemn these “textual originalists” as defenders of so-called “substantive due process.” This break is not easily patched over. It may even suggest that the most serious divide is between a nineteenth century “textual originalism” moored in a natural rights foundation, on the one hand, and a break with this foundation embraced by most schools of modern jurisprudence.

While O’Neill notes this profound break, he does not have much to say about it. At times he even seems to accept the critique of these earlier justices, using the term “economic substantive due process” in describing their jurisprudence despite the fact that it does not begin to capture the capaciousness of this early constitutional thought (which did not distinguish between personal and economic liberty). Here, too, is the only serious criticism of O’Neill’s book: for a book on constitutional thought, it does not wrestle with thought at a foundational level. He does not ponder if “contemporary originalists” have lost something that was essential to original constitutional ends by neglecting the principles and presupposition upon which the Constitution rests. Perhaps this is an unfair criticism. O’Neill’s aim, as a gifted historian, is to provide a history of the return of originalism and not to take up the admittedly more philosophical question of whether the originalism he describes can truly be described as originalism.

O’Neill does, however, leave us with alterations and modifications within originalist thinking that are very much attuned to the dilemmas raised by the “first wave” of “contemporary originalism.” The second and third waves of “contemporary originalism,” refined against criticism, have largely broken with the essential justifications of original intent offered by the likes of Bork. These originalists have insisted that original meaning is essential to the very nature of a written constitution (Whittington 1999; 2004; Barnett 2004; 2006). In doing so, scholars have offered more principled – and even philosophical – arguments for originalism. In this, these arguments for originalism have more of an affinity with the “textual originalism” that O’Neill attributes to nineteenth century constitutional thought.

If originalism has had a powerful influence on constitutional thought, it has not been as influential on judicial decision-making. Even so, O’Neill notes that there has been a serious turn to questions of original meaning. Consider that in recent establishment clause cases, [*171] the majority and dissenting opinions are often a quarrel about the original understanding of the clause (e.g. LEE v. WEISMAN and ROSENBERGER v. UNIVERSITY OF VIRGINIA).

ORIGINALISM IN AMERICAN LAW AND POLITICS is an excellent account of the historical origins and development of the return of originalism. It will be of great interest to political scientists and legal scholars; it should even have wide appeal for a more popular audience as O’Neill writes with wit and elegance and not a trace of academic jargon. Let us hope, as well, that it finds a wide audience among historians – particularly younger historians who have followed the discipline’s turn away from constitutional history. It would be nice to see the return of constitutional history to History proper. And O’Neill has provided a ready vehicle for just such a return.

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

Amar, Akhil Reed. 2005. AMERICA’S CONSTITUTION: A BIOGRAPHY. New York: Random House.

Barnett, Randy. 2004. RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY. Princeton: Princeton University Press.

Barnett, Randy. 2006. “Trumping Precedent with Original Meaning: Not as Radical as it Sounds” 22 CONSTITUTIONAL COMMENTARY 257.

Balkin, Jack M. 2006. “Abortion and Original Meaning” Yale Law School Public Law Working Paper No. 119. Available at SSRN: http://ssrn.com/abstract=925558 .

Brennan, William J. Jr. 1985. “The Constitution of the United States: Contemporary Ratification” in Rakove, ed., INTERPRETING THE CONSTITUTION: THE DEBATE OVER ORIGINAL INTENT.

Burger, Rauol. 1969. CONGRESS v. THE SUPREME COURT. Cambridge: Harvard University Press.

Lofgren, Charles A. 1988. “The Original Understanding of Original Intent?” in Rakove, ed., INTERPRETING THE CONSTITUTION: THE DEBATE OVER ORIGINAL INTENT.

Rakove, Jack N, ed. 1990. INTERPRETING THE CONSTITUTION: THE DEBATE OVER ORIGINAL INTENT. Boston: Northeastern University Press.

Whittington, Keith E. 1999. CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW. Lawrence: University Press of Kansas.

Whittington, Keith E. 2004. “The New Originalism,” Georgetown Journal of Law and Public Policy 2: 599-613.

CASE REFERENCES:
HOME BUILDING AND LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934). [*172]

LEE v. WEISMAN, 505 U.S. 577 (1992).

ROSENBERGER v. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA, 515 U.S. 819 (1995).

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© Copyright 2008 by the author, George Thomas.

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INTERPRETATION AND REVISION OF INTERNATIONAL BOUNDARY DECISIONS

by Kaiyan Homi Kaikobad. Cambridge: Cambridge University Press, 2007. 394pp. Hardback. $105.00. ISBN: 9780521869126. eBook format. $84.00. ISBN: 9780511292378.

Reviewed by Emilian Kavalski, Department of Political Science, University of Alberta (Edmonton, Canada). Email: kavalski [at] ualberta.ca.

pp.163-165

The interaction between territoriality, globalization, and conflict has gained momentum in the study of world politics. More often than not, the line of inquiry has tended to advance a network of causal relationships between the increasing interdependence of international life and the alleged reduction in inter-state conflicts. Yet, such assertions seem to neglect the resurgence in boundary disputes and the attempts at their international arbitration and settlement. Kaiyan Homi Kaikobad’s volume, therefore, addresses this interpretative lacuna in the literature and develops operational vocabulary for tackling its analytical quandaries. Despite the increasing permeability of borders by goods, ideas, and individuals, the attachment to and significance of particular locations does not seem to have diminished; on the contrary, territory seems to have gained renewed centrality in the discourses of global governmentality. Therefore, Kaikobad’s parallel examination of the interpretation and revision of international boundary decisions considers the symbolic – and, thereby, legally demarcated – value of places. In this respect, it is the confluence between the non-tangible historicization of territorial attachment and the very distinct outlines of national sovereignty that underwrite the difficulties attending the resolution of border disputes.

As Kaikobad insists, his book makes a contribution to the literature on the law of title to territory. His prescient analysis offers in-depth reflection on instances of legal dispute settlement of territorial conflicts through adjudication and arbitration. Such endeavor pays special attention to the powers of and the role(s) played by international tribunals to clarify and amend their judgments on territorial entitlement. In this setting, Kaikobad’s engagement with the notion of boundary arbitration (i) contextualizes the instrumental purpose, scope, interpretation, and application of territorial adjudication; and, at the same time (ii) suggests the global implications of these juridical decisions regarding territorial borders. The investigation situates its inferences through a four-part exploration that brings in evidence from twenty-nine cases of the International Court of Justice, nine opinions of the Permanent Court of International Justice, eight decisions of the Permanent Court of Arbitration, nearly sixty arbitral decisions from various national and international courts, and one case from the European Court of Human Rights. Such diverse evidence-base attests not only to the volume’s meticulous exploration of the specific juridical dynamics animating boundary disputes, but also their intrication with the broader literature on the relationship between the [*164] growing interdependence of global life and the persistence of territorial conflict.

In the introductory section, Kaikobad reviews the literature, discusses the dominant parameters and perspectives that underwrite arbitration of territorial disputes, and presents his preliminary observations. Such overview provides not only the background against which Kaikobad builds up the thrust of his argument, but also sets up the relevance of the selected cases and acknowledges the remedial character of the decisions on boundary adjudication that does not develop in a “complete juridical vacuum,” but is intimately related to juridical practices and cases that do not relate to territory, per se. Such comparative approach allows Kaikobad to examine critically “these remedies in the context of territorial and boundary disputes insofar as they generate problems peculiar to this area of the law” (p.14). Thereby, the second part of his volume engages in detailed assessment of the settlement of territorial and boundary disputes. This section addresses the inter-relation between international law and demands of different groups for self-determination and armed conflict. The analysis, therefore, pays special attention to the post-conflict settlement of boundary and territorial disputes and offers a historical process-tracing of its dynamics. Such survey discusses the experience of the legal effects of “peaceful” territorial settlement by grouping the different issues and disputes in four clusters: (i) problems deriving from the “continuity and discontinuity of frontiers” following a succession of state and/or government; (ii) problems deriving from the unilateral decision of some states to renounce formal agreements on boundary alignments; (iii) problems deriving from the unwillingness to accept (if not outright rejection of) territorial or boundary awards; and (iv) problems deriving from the complexity of legal considerations when, “despite one or even two judicial or quasi-judicial decisions regarding the location of the [boundary] line, the matter cannot realistically be considered as having finally and definitively been settled, and, equally, importantly, rejection may come not from the disputant parties but from a mediating body” (pp.32-52).

The context provided by the in-depth analysis of the arbitration and adjudication of territorial and boundary disputes allows Kaikobad to scrutinize the judicial remedies proffered by interpretation and revision of judgments and awards. Thus, in the third part of the book, he details the evolution of the notion and practices of interpretation. This examination directs the investigation towards the various legal quandaries provoked by the emergence of interpretation, specifically as they relate to the “role of consent” (p.102). Kaikobad’s focus, therefore, leads him to elaborate the purpose, scope, and principles of interpretation. Such analytical overview suggest that interpretation can be “put into effect as a remedy” only when the following “threshold criteria” have been applied – proving the existence of a dispute; focusing on the operative part of the adjudication; examining the meaning and scope of a territorial award or a boundary judgment; assessing them with reference to the particular temporal context; and ensuring that the parties involved consent to the arbitration – i.e., interpretation “cannot be considered an inherent right or remedy of a tribunal . . . [*165] [instead, the] fundamental fact is that the remedy of interpretation exists only by way of mutual agreement” (p.225). Following this study, in the fourth part of the volume Kaikobad engages in scrutinizing the judicial remedies prompted by the revision of judgments and awards. Again he starts by surveying the emergence of the notion and practices of revision, its general features, and classification. The investigative spotlight in this part of the analysis, however, falls on the issue of admissibility of judicial revisions and their substantive and procedural criteria. In the end, Kaikobad concludes that the judicial revision of territorial arbitration, just “like interpretation, is a judicial remedy which can be exercised only where there is evidence of agreement between the parties to the effect that the same or some other tribunal has jurisdiction to revise the previous judgment” (p.319).

Such detailed discussion of the two judicial remedies – interpretation and revision – indicates both their practical applicability to the resolution of boundary disputes as well as their potential to initiate a whole set of problematic issues in the mid- to longer-term period beyond the short-term objectives of conflict settlement. Thus, although lending themselves to the “quick-fix” objectives for peaceful resolution of territorial disputes, often however such legalistic remedies do not seem to tally with the particular contexts to which they are applied. In this setting, Kaikobad’s insistence on the necessity of a mutual agreement and consent of the conflicting parties to territorial adjudication is a central feature to his argument, which he re-emphasizes in the fifth part of the volume. As he points out, lack of cooperation with the process of boundary arbitration “would tend to defeat the very object and purpose of international adjudication as perceived by litigating States: the dispute would continue to fester and would jeopardize relations between the disputing parties” (p.339). However, the emphasis on this corollary is also the point which Kaikobad’s otherwise prescient analysis leaves somewhat occluded. In other words, despite the insistence on consent, Kaikobad does not seem to problematize how such mutual agreement between (what usually are very staunch) adversaries is instigated, constructed, or engineered. This is a dynamic, which some of the volume’s readers might be provoked to explore further.

Such blemish notwithstanding, Kaikobad’s volume renders a rarely erudite and perceptive investigation of the issues relating to the international interpretation and revision of boundary decisions. In this respect, by bringing his in-depth knowledge and experience with third-party mediation, conflict analysis and juridical approaches to territorial disputes, Kaikobad makes an outstanding contribution both to understanding the interactions between territoriality and conflict in an era of globalization and to the contextualization and application of judicial remedies. It is anticipated that both advanced scholars and students of international law, conflict resolution, secession movements, international organizations, and world politics would benefit from the lucid and shrewd analyses included in the volume.

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© Copyright 2008 by the author, Emilian Kavalski.

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UNIVERSAL HUMAN RIGHTS: ORIGINS AND DEVELOPMENT

by Stephen James. New York: LFB Scholarly Publishing, 2007. 294pp. Cloth. $75.00. ISBN: 9781593322090.

Reviewed by Mark F. Massoud, Jurisprudence and Social Policy Program, University of California, Berkeley. Email: massoud [at] Berkeley.edu.

pp.160-162

How did human rights principles evolve into a body of international law? To what extent is international human rights law a feature of global western imperialism, and what is the role of non-state actors in the development of international human rights law? These questions, significant to scholars of international law and development, guide Stephen James’ analysis in UNIVERSAL HUMAN RIGHTS.

James’ answer is succinct: Human rights law is not a product of western hegemony. In fact, he argues, the opposite is true. The incorporation of human rights into international law “was achieved in the face of widespread and persistent western – including American – resistance” (p.251).

James’ interdisciplinary analysis roots itself in political theory around rights, and it equally engages legal history. He begins by presenting his understanding of human rights as universal and rooted in human dignity. James then chronologically tackles early conceptions of human rights as universal, from the likes of Aristotle, Cicero, Roman Catholic theologians of the Middle Ages, and Enlightenment thinkers such as Locke. He provides ample examples of real-world frustrations of these universalist philosophies of rights, including positivism and the emergence of a strengthened nation-state, along with slavery, sexism, and sectarianism. And to counter the caricature of the Enlightenment as offering the world only a liberal, individualistic conception of rights, James documents how influential philosophers of that era also supported economic and social rights as well as regulatory states.

Added value to the book (and to the argument about human rights’ diverse origins) comes from James’ discussion of both early and contemporary non-Western traditions. And whereas many studies of the evolution of human rights begin sometime after the 1945 Universal Declaration of Human Rights (UDHR), James confronts a critical, formative period, 1900-1939. It is through his examination of the early 20th century that his argument about the role of non-state actors crystallizes. That is, non-governmental organizations promoting the protection of minorities and indigenous groups pushed human rights on an international scale, particularly following the First World War and the founding of the League of Nations. These organized and mobilized groups included African American organizations – often neglected in the human rights literature – that linked themselves with emerging transnational struggles against colonialism in the global South during the first half of the 20th century. [*161]

The bulk of James’s book narrates the evolution of a human rights order arising from the aftermath of Nazism and World War II, and the development of the United Nations Charter, the UDHR, and the 1966 International Covenants on Civil and Political Rights, and on Economic, Social, and Cultural Rights – collectively, the International Bill of Rights. The history he portrays is one marked with domestic political disagreements played out on the international arena, confrontations between Cold War enemies, and battles on the frontlines of decolonization. The guiding frames for the book’s analysis are the consistently thwarted attempts by western powers, particularly the United States, to shape the content of human rights documents, and the relative success of non-governmental groups and smaller powers in influencing the scope of the documents. Here, James argues clearly that the International Bill of Rights emerged in large part because of widespread support among small and middle states and non-governmental groups, “in the face of often staunch US resistance” (p.154).

James’ research is thorough, weaving a lengthy history with a consistent narrative, which is helpful to the reader. Nevertheless, one could succumb (as James does in the book’s conclusion) to the lure of pinning obstacles to human rights on American hegemony. But this trap disables political scientists from dealing adequately with the fact that many poor countries have minimal rule of law – or rather, have too much law enforced by plural, divided, or repressive legal traditions. This brand of “repressive law” (Nonet and Selznick 2001) is all too common in unstable states and transitional democracies. It leads to uncertainty in the relationship between ruler and ruled, to gross violations of dignity, and to the obvious attraction by subjugated peoples in unstable or authoritarian states to promote the protections of international human rights law. James’ argument is at its most tenuous here: Saying that, for example, even “Muslim states” such as Syria and Iran supported the UDHR falls short of convincing the reader that human rights are themselves universal. After all, recent treaty adoptions – Saudi Arabia’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women while its national laws forbid women from foreign travel without the permission of a male “head of household,” and Sudan’s adoption of the Convention on the Rights of the Child while its military government and rebel groups deployed children to fight each other in Africa’s longest civil war – would suggest that some countries that openly support international human rights laws have little if any intent to obey them. Meanwhile, those countries that are serious about the rule of law have made more concerted efforts to understand and evaluate the limits to their domestic rule of law by the International Bill of Rights. In these ways, “human rights” loses its luster as a revered body of law, ushering in the range of arguments about its ultimate lack of both enforceability and universality.

Even if one were to agree that human rights are not a product of western imperialism, as James would urge us to do, then this conclusion does not help political scientists deal with the so-called elephant in the room: Rights – and human rights – themselves are rhetorical devices hegemonic on their own, [*162] regardless of the extent to which they accumulate western support. The paradox of human rights is this: While as a body of law they are narrow and legalistic, they are at the same time nearly ubiquitous in their ability to garner the sympathy of oppressed populations and their advocates. And as an essential element of public international law, human rights are also, for better or for worse, building blocks of the current world order, a system created by and predicated on the maintenance of state power vis-à-vis oppressed populations. Human rights, then, become an exploitable agreement pulled out of the filing cabinet by civilized nations (even the most democratic of which violate human rights in one way or another) or non-state actors in order to shame governments that ill-treat human beings.

Putting all this together, law emerges as a global commodity: It frames the relationship between state and non-state actors, while it at once oppresses and helps to liberate minorities from oppression. As UNIVERSAL HUMAN RIGHTS would suggest, human rights law has evolved organically with diverse origins often ignored by scholarly inquiry. International human rights law is shaped from “above” by the intellectual achievements in, among other arenas, classical and Enlightenment philosophy and by the two World Wars and Cold War of the 20th century, and it is shaped from “below” by anti-colonial movements and transnational activism around the protection of rights of women and minorities. The legacy of James’ book will be in its exposure of these multiple sources of human rights and their relationships to one another, and in chronicling the evolution of human rights from principles to laws.

REFERENCES:
Nonet, Philippe, and Philip Selznick. 2001. LAW & SOCIETY IN TRANSITION: TOWARD RESPONSIVE LAW (REVISED EDITION). New Brunswick: Transaction Publishers.

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© Copyright 2008 by the author, Mark F. Massoud.

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THE SUPREME COURT: AN ESSENTIAL HISTORY

by Peter Charles Hoffer, Williamjames Hull Hoffer and N. E. H. Hull. Lawrence: University Press of Kansas, 2007. 494pp. Cloth: $34.95. ISBN: 9780700615384.

Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky. Email: pol140 [at] uky.edu.

pp.157-159

There has not been a wall to wall history of constitutional law published in a long time. Peter Charles Hoffer, Williamjames Hull Hoffer and N.E.H. Hull, two history professors and a law professor at Georgia, Seton Hall and Rutgers respectively, remedy this in THE ESSENTIAL HISTORY, a long but quite readable book. Their attention is pretty evenly distributed from 1790 to Chief Justice William Rehnquist’s death in 2005. This book should attract intelligent lay readers who are interested in how the Court has shaped constitutional law and serve as a refresher for those moderately knowledgeable about what the Court has done, but could use a brush up on, say, HYLTON v. U.S. (1796), SWIFT v. TYSON (1842), or other decisions more important to the past than to the present. However, there are no footnotes so the book is not a good reference for scholars. I found this a plus most of the time, but the authors give a few nice but not commonly known quotations from justices where I was curious to know the source. There is a long, annotated bibliography. THE ESSENTIAL HISTORY will presumably be used as a text for constitutional history courses, although I am too far afield to predict its popularity. Because it is a history, it is not good text for judicial-type courses in political science. But it may well be placed on an Other Readings of Interest list on these courses’ syllabi.

THE ESSENTIAL HISTORY focuses almost exclusively on the High Court’s constitutional law opinions but gives considerable attention to concurrences and dissents. In this sense, it is not comprehensive coverage of the Court’s jurisprudence as most of that body’s earlier cases were suits at common law and many more recent ones involve issues of statutory interpretation or administrative regulation. (The authors do discuss interpretations of civil rights laws.) Of course, constitutional law is most likely to interest readers. In covering constitutional interpretation, the authors opt for breadth instead of depth, especially in the period after World War II. So many cases are included that, with a few exceptions, important cases get little more analysis than do more obscure ones.

The authors present a nice discussion of each new justice’s career and ideology at the beginning of every chapter. It runs from a single to four or five paragraphs depending on the member’s influence and length of service – enough to give the reader a sense of who is on the bench while still keeping the spotlight on the Court and not on cliques or clashing personalities. Indeed, the authors say little about how the justices arrive at decisions in terms of either biographical revelations, historical research or political science investigations of justices’ voting behavior. THE [*158] ESSENTIAL HISTORY is about output, not process.

Those who would write a history of our highest court’s decisions face some organizational choices. Should they develop the book around doctrinal development in various areas of the law over a good number of years – e.g., federalism prior to the Civil War or the establishment clause after World War II? Or should they slice the chronology more finely and, if so, how? The authors choose to use the arrivals of new chief justices as dividing lines for their chapters. Those serving before John Marshall are compressed into one chapter, but otherwise each Chief has a chapter to himself. Sometimes this is propitious as when Harlan F. Stone’s succession of Charles Evans Hughes coincided with the Court’s shift from an economic focus to cases about the scope and nationalization of the Bill of Rights’ guarantees. But the tenure of Chiefs is rather arbitrary and at times a change does not mark a shift in Court focus or doctrine at all – e.g., Edward White’s following Melville Fuller, or Fred Vinson coming after Stone. In these circumstances, chapters by Chiefs makes for choppy, truncated reading for those interested in doctrinal development.

As it happens, the authors are less interested in doctrines than they are in cases. While cases are grouped into rough legal areas in each chapter – e.g., old substantive due process or freedom of speech and press – the authors usually focus on the cases themselves and give only secondary attention to doctrinal development and clashes of competing approaches. Of course, many substantive and interpretive doctrines are noted as cases are covered, but they are not emphasized and seldom discussed comprehensively. Occasionally doctrines are ignored altogether – e.g., the justices’ half century see-sawing between the valid secular policy test and the compelling state interest test in free exercise clause cases.

In a sense, the book is mistitled. It might better be called CONSTITUTIONAL LAW: THE ESSENTIAL HISTORY because the focus is on constitutional law, not the Court itself. As noted above, there is little said about the interactions within the Court. While Hoffer, Hoffer and Hull do not treat the Court in isolation (there is some discussion of presidential goals in choosing justices and of political and practical realities facing the Court in certain decisions), there is little discussion of the Court’s broader role in making national policies. They say nothing about Robert Dahl’s famous 1957 argument that the Court is generally too weak to buck serious Congressional initiatives or about other arguments over the Court’s place in governing America. Nor is much attention given to the periodic Court-curbing efforts. EX PARTE McCARDLE (1869), the granddaddy of all such efforts, is not even mentioned. And while the authors seem admiring of Court’s resistance to Congressional Red Scare investigations announced in WATKINS v. U.S. (1957), they ignore the Court’s ignominious surrender two years later (BARENBLATT v. U.S., 1959) in the face of a hostile public outcry and Congressional retaliatory bills.

In the same vein, the authors give little attention to the impact of the Court’s decisions, even the major ones. Reading [*159] THE ESSENTIAL HISTORY, one would hardly know how BAKER v. CARR (1962) forever reshaped state legislatures and their policies, how GIDEON v. WAINWRIGHT (1963) altered criminal prosecutions, or even about the vast increase in abortions following ROE v. WADE (1973). Reapportionment gets three paragraphs. Of course this is a partial consequence of the choice to cover a wide array of major and minor decisions with more or less the same attention.

Unfortunately, THE ESSENTIAL HISTORY is marred by careless factual errors. A few from many: NEW YORK TIMES v. SULLIVAN was handed down in 1964, not 1966; Adlai Stevenson was governor of Illinois, not a senator when he ran for president in 1952; Cardozo, appointed in 1932, is erroneously said to have participated in a 1931 case; 28 states, not four, allowed women to vote in 1919 when the 19th amendment was adopted. While such errors are hardly serious, they occur frequently enough to be bothersome.

Although I am disappointed in the narrow focus of their history, I found Hoffer, Hoffer and Hull an enjoyable read. Their discussion is lively, they can offer wry observations, and their analysis of an opinion and its implications is occasionally at odds with the conventional wisdom. It is an attractive book for those who want a comprehensive overview of the cases that shaped our constitutional development and the Court that produced them.

REFERENCES:
Dahl, Robert. 1957. “Decision Making in a Democracy: The Supreme Court as a National Policy-Maker.” 6 JOURNAL OF PUBLIC LAW 279-295.

CASE REFERENCES:
BAKER v. CARR, 369 U.S. 186 (1962).

BARENBLATT v. U.S, 360 U.S. 109 (1959).

GIDEON v. WAINWRIGHT, 372 U.S. 335 (1963).

HYLTON v. U.S., 3 Dal. 171 (1796).

EX PARTE McCARDLE, 74 U.S. 506 (1869).

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

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

SWIFT v. TYSON, 16 Pet. 1 (1842).

WATKINS v. U.S., 354 U.S. 178 (1957).

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© Copyright 2008 by the author, Bradley C. Canon.

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RACE, EQUALITY, AND THE BURDENS OF HISTORY

by John Arthur. Cambridge and New York: Cambridge University Press, 2007. 340pp. Hardback. $80.00/£45.00. ISBN: 9780521879378. Paperback. $25.99/£15.99. ISBN: 9780521704953. eBook format. $21.00. ISBN: 9780511352980.

Reviewed by Gloria Cox, Department of Political Science, University of North Texas. Email: gcox [at] unt.edu.

pp.152-156

John Arthur tells the reader at the outset that the organizing theme of RACE, EQUALITY, AND THE BURDENS OF HISTORY is racism. He then provides a lengthy and important discussion that can be described as informative, nuanced, complex, stimulating, and provocative. Many readers who begin the book with the sense that they understand the term “racism” will encounter a discussion that dispels them of that notion. Arthur, a longtime philosopher and professor, weaves a conversation that includes his own ideas, as well as those of many others who have weighed in on the subject. In fact, Arthur’s acknowledgement and consideration of the views of other scholars greatly strengthen this book.

Arthur explains that, while most definitions of racism revolve around some combination of attitudes, beliefs, and institutions, such understandings are inadequate and present controversies worthy of exploring in greater depth and detail. In the process, the reader recognizes the enormous difficulty of defining the term with precision. For example, Arthur includes Richard Delgado’s idea that racism may be procedural or substantive, and notes Delgado’s view that it is racism to “elevate equality of opportunity over equality of result,” a view certain to be controversial to many (p.11). Extending the argument, Arthur reminds the reader that “racism” and “racist” are normative terms with inherently negative meanings, and that no one places the badge of racist on another as a compliment.

The writer goes on to discuss the possible effects of racism, although he notes that those effects can vary widely, from none to catastrophic. Indeed, he notes, the defect of being a racist is in attitudes that are epistemologically defective, rather than in actions. In his words, “racism is always unwarranted. It is an attitude that is never justified” (p.18). Racism is therefore different from “genocide” or “terrorism,” in that those terms imply actions while racism may or may not – i.e., one can be racist but never express or act on that hatred. While racism is epistemologically defective, Arthur argues that fact does not demonstrate that the racist person is morally defective, providing in the process various illustrations to make his point. Arthur’s ideas run the gamut from widely accepted to clearly provocative, as when he notes that “oppressed persons may themselves be racists” (p.24), and that patriots and racists have in common the fact that both have settled feelings. Of special interest is Arthur’s discussion of the differences between racism and prejudice, noting [*153] that prejudice is “broader, and slightly different” (p.28).

Although Arthur concludes that racism is primarily an attitude, it is still possible for institutional racism to exist, even though institutions, unlike persons, cannot, of course, actually have attitudes. As an example, he discusses a legal system written, intentionally or not, so that many more blacks than whites are incarcerated for drug-related charges. Other examples of institutional racism include the failure of the banking system to locate as many offices in black neighborhoods as in white ones, and a health care system that seems unconcerned about lower life expectancies for blacks.

The author never hesitates to tackle complex and difficult topics, such as the link between racism and racial inferiority, which he asserts should not be assumed. When people subscribe to the idea of racial inferiority, its manifestations can take many forms. There are five major ones, however: intellectual inferiority; moral inferiority; physical inferiority; aesthetic inferiority, and emotional inferiority (p.35). Still, the link between racism and beliefs of racial inferiority may be missing, as some racists believe in the superiority of those against whom they feel hatred. The example, he explores anti-Semitism, which over its long history has been linked to anger at the success of Jews in many important fields. As with other topics, Arthur discusses the history of anti-Semitism, offering many illustrations of changing attitudes toward Jews over the centuries and, with those changes, different manifestations of anti-Semitism. Arthur acknowledges, though, that anti-Semitism may be more accurately viewed as “some form of religious, ethnic, or cultural bigotry” rather than racism (p.33), and that “[h]ostility to groups based on linguistic, cultural, or religious differences is not racism” (p.35).

When he gets to racial profiling, Arthur acknowledges that it is “a difficult and deeply controversial issue” (p.43). He notes that profiling is viewed negatively because it tends to rely on unjustified racial stereotypes and that it also places burdens, ranging from light to heavy, on many innocent persons simply because of their membership in a group that has been singled out for negative images by some authority, such as the police or the Transportation Security Administration. Profiling is, however, in common use in many situations, such as the efforts of law enforcement authorities to catch drug dealers and the Internal Revenue Service’s standards for whose tax return should be audited. He concludes that profiling is not the point at all; racial profiling is the real issue, because it is the only kind of profiling that takes place against a background of slavery and discrimination.

Arthur actually explores all of these subjects in the very important discussion of racism in the first chapter. The arguments are so plentiful and the discussion so nuanced in the first twenty percent of the book that it is unlikely that students in a graduate seminar could adequately explore it, even over the course of several class meetings. However, the contentions become even more sophisticated as Arthur moves to the question of whether “race is a social construction, a natural category, or both” (p.52). [*154]

Virtually everyone accepts the view that many ideas about race are part of complex social constructs, just as sex and gender are. But is race also a biological category? Although many people would readily respond affirmatively to this question, others would just as adamantly say no. This question is one of those issues on which dominant thinking has changed over time, and Arthur retraces the development of ideas by Herbert Spencer, who notoriously linked biology with society. Arthur makes clear the dangerous implications of such thinking, including the horror unleashed on the world when “Nazism employed racial theories in order to justify genocide, mass murder, and war” (p.68). Moreover, he warns that erroneous claims about differences among races are at the heart of much hatred and many abuses.

Over the course of several centuries, people have engaged in the exercise of coming up with lists of races, most of them containing five or six groupings. In the United States in recent decades, such efforts have been less common as we have moved toward greater understanding of our genetic complexity. At the same time, the Human Genome Project has identified “six main genetic clusters” (p.73), through which “genetic differences can be used to trace the ancestry of all living humans” (p.74). These are called population groups rather than races (p.75), in order to avoid the highly charged term of race. These discoveries have proven interesting to the scientific community, especially in the field of genetics where scientists are exploring the differing effects of diseases and medications on people of the various genetic clusters.

For the remaining three-quarters of the book, Arthur explores the application of the concepts of racism and racial inferiority to past and present institutions and policies of our society, beginning with slavery, the racist characteristics of which there is no doubt. From there, he moves on to discussions of racial equality, poverty and race, compensatory justice, merit and race, and affirmative action and equal opportunity. While most of the legal history he includes will be familiar to the reader, he delivers particularly interesting discussions of the horrors of Southern slave codes, as well as the rationalizations Southerners offered up for keeping slavery. Arthur notes correctly that the excuse-makers included not only the slaveholders themselves, but politicians, government officials, and the clergy.

Arthur refuses to shy away from tackling the difficult and controversial. From the reviewer’s perspective, no reader will make it through even a portion of this book without vigorously agreeing and disagreeing with him as points are considered. He addresses the issue of racial equality, including the question of what it requires of government and/or society. Of special note is an engrossing discussion of the difference between a person’s value and his or her worth, distinguishing, of course, between instrumental and intrinsic values. This discussion ranges far, and includes exploration of terms like dignity and autonomy. Arthur moves on to justice and equality, including types such as formal, substantive, outcome, and procedural equality. He takes on John Rawls, first explaining Rawls’ ideas, and then why they are incorrect. Finally, his argument returns to slavery and segregation, noting firmly that they [*155] “violated both equality and justice” (p.146).

As Arthur turns his attention to the matter of continuing greater poverty among blacks than whites, the controversial nature of his views and comments cannot be avoided. Arthur was known as a scholar who was not afraid to present views that he knew in advance would be contentious and controversial. It is in the discussions of this chapter that this feature of his reputation is fully borne out. While he begins well enough by criticizing the ideas put forth by Richard Hernstein and Charles Murray in THE BELL CURVE (p.165), calling it the “repugnant hypothesis” and explaining why it is erroneous, he goes on to discussions of children born out of wedlock, relative poverty, incarceration rates, and educational attainment that might be controversial to some and absolutely incendiary to others. For one thing, he strongly argues that children from one-parent homes do not achieve as well as those who grow up in the presence of two parents. He concludes that poverty is not related to past injustices against blacks, but is instead the result of economic and cultural factors. He argues that the most directly relevant cultural factors for poverty across all races and ethnicities are single-parent families, crime, and poor educational achievement, each of which is discussed.

The progression of the discussion leads Arthur to consider frequently heard proposals to make restitution or pay reparations to the descendants of those who were enslaved. Arthur notes the distinction between restitution and reparations, explaining in considerable detail the difficulties of each possible approach to these topics. His argument is that the critical point establishing “the link between the wrongful act and the harm is crucial” (p.211). His conclusion to this topic is a discussion of the importance and power of sincere apology.

Finally, Arthur moves on to a discussion of affirmative action, laying the groundwork by discussing merit, including the idea that the concept is but a myth put forth by those in power to keep themselves where they are. He notes that merit has been attacked as “white people’s affirmative action” (p.248). However, he demonstrates that diversity itself can be, and often is, viewed as merit, and that “race can sometimes be a qualification for a position” (p.256). He adds, “affirmative action is therefore often, but not always, in opposition to merit” (p.256). His comments about affirmative action are strongly negative from several aspects, including its effects on the larger society, as well as on those assisted by it.

Arthur’s bring the perspective of the philosopher, and his writing is designed to explore arguments and their weaknesses and strengths, however nuanced a discussion that may require. He aims to let the reader know the complexity of the issue rather than providing anything like a definitive answer to the question. His views are controversial, and no one should tackle this very dense and provocative book without recognizing that s/he will confront pronouncements and arguments that may be uncomfortable or perhaps even angry. In considering the type of audience for which the book might be best suited, I have to admit that I would be reluctant to assign all or even part of [*156] it to undergraduates. Perhaps more mature students would be able to find their way through the arguments presented by this obviously intellectual and thoughtful writer and come away with a deeper appreciation of the complexity of issues that are of great importance to our society.

Arthur writes not only from a scholarly background, but also as a person with experience in civil rights issues. He took a minor in Afro-American studies at Fisk University while working on his Ph.D. at Vanderbilt, and he even filed suit in federal court over what he viewed as violation of the Equal Protection Clause at Tennessee State University. On a final note, this book was completed shortly before Arthur died in January 2007 of lung cancer. He was a professor of philosophy at Binghamton University and, according to reports, was a much admired and valued teacher and colleague.

REFERENCES:
Hernstein, Richard J., and Charles Murray. 1994. THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE. New York: Free Press.

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© Copyright 2008 by the author, Gloria Cox.

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PROTECTING THE WORLD’S CHILDREN: IMPACT OF THE CONVENTION ON THE RIGHTS OF CHILD IN DIVERSE LEGAL SYSTEMS

by Shaheen Sadar Ali, Savitri Goonesekere, Emilio Garcia Mendez, Rebeca Rios-Kohn. Cambridge: Cambridge University Press, 2007. 286pp. Hardback. £40.00/$65.00. ISBN: 9780521875134. eBook format. $52.00. ISBN: 9780511353079.

Reviewed by Sanghamitra Padhy, Department of Political Science, University of Southern California. Email: padhy [at] usc.edu.

pp.147-151

The tension between absolute and relativist positions on human rights is a longstanding debate in legal scholarship. The dominant disciplinary frameworks see the acceptance of human rights law as parallel adaptations to a set of shared rights or situate rights in culturally determined ways. This equivocal stance fails to grapple with the complexities and processes of implementation of human rights in different political and social contexts. PROTECTING THE WORLD’S CHILDREN: IMPACT OF THE CONVENTION ON THE RIGHTS OF CHILD IN DIVERSE LEGAL SYSTEMS is an extensive and engaging study of how different legal systems have implemented and integrated children’s human rights law. This study underscores that effective implementation of children’s human rights requires an understanding of the interconnectedness of rights of children guaranteed by the convention and also the country experiences to harmonize the Children’s Rights Convention (CRC) with legislative reform.

Taking a historical approach to the evolution of children’s rights in different legal contexts, this scholarship situates law in practice and presents how the particularities of the legal traditions and the political context mediate in the implementation of children’s human rights. It is a testimony to how legal reforms relating to children’s rights in domestic settings are stirred by international norms and yet the process of internalization is locally ordained, defined by the political, social and cultural context. This book revisits the central questions of human rights implementation – the universality and relativist debates, monist and dualist frameworks – and suggests exploring the practical realm of human rights application by understanding the contexts.

The applicability of human rights law is challenged by two issues. The first concerns acceptability of human rights dialogue across societies. While uniformity and harmonization of children’s human rights across nations is a desirable ideal, this is an unrealistic goal given the conflicting visions of law and justice in societies and the distinct political histories of each country. Literature in different fields of human rights has explored socio cultural diversity to demonstrate how local notions of justice influence the interaction with international norms. In a pathbreaking work in the 1990s, legal scholar Alison D. Renteln disputing the absolutist and strong relativist assumptions in scholarship argued that universal human rights standards [*148] develop through negotiation with socio cultural values (Renteln 1990). Sally Engle Merry, in her discussion about human rights and gender violence, has observed that there are discrepancies between human rights formulations and daily experiences of women in different local contexts (Merry 2005). Merry has contended that human rights law must be framed in local terms to be accepted and effective in altering social hierarchies.

In a similar vein, Shaheen Sardar Ali, Savitri Goonsekere, Emilio Garcia Mendez and Rebeca Rios-Kohn, in their study of the Convention of Children’s rights have discussed the variations in acceptance of children’s rights standards in diverse legal traditions. The authors make an exciting intervention to show how the child’s “best interest” concept, ingrained in common law and foundational to the CRC is interpreted diversely in different cultures. This essential core of children’s rights has been integrated in other legal systems through colonial codification of laws, interpretations of judges in common law and plural systems, and also in civil law states. Ali says it forms the core of Islamic law. Despite its almost universal presence, the best interest principle has been used to legitimize discriminatory practices by the state. In such instances, the authors contend that the promotion of children’s rights can be promoted by linking national laws to international standards and through active engagement with community and traditional leaders.

They argue that regional legitimization of human rights standards best promotes universal implementation, as it enhances local cultural values that are in harmony with CRC’s ideals. For instance, the Tehran and Islamabad declaration, Ali notes, are crucial to Islamic states’ acceptance of CEDAW and CRC. The local anchoring of human rights law is especially evident in the case of the CRC as it is one of the few treaties that received reservations by states based on cultural and regional arguments, despite universal acceptance by all states. It therefore posits many questions about its applicability in regional contexts. Moving beyond the relativist and absolutist arguments, the authors in this volume demonstrate that the acceptance of the CRC is challenged not just by different cultural positions about the status of children, but it has deep historical and political roots embedded in the colonial history.

The second question concerns the process of implementing human rights law. This work has been innovative in its questioning of the conventional categorization of state reception of human rights through monist and dualist approaches. The conventional wisdom is that the rules of implementation of human rights depend on municipal law. Where the monist theory is followed, international law and municipal law on the same subject act concurrently, and, in the event of a conflict, the former prevails. Where dualism is favored, international law and municipal law are mutually exclusive, and the former has no effect on the latter until it is incorporated through domestic legislation. However, as the case studies illustrate, this distinction is not strictly followed; in civil law countries that practice monism, international law is not accepted directly in courts, and in dualist countries international norms play an important persuasive role in interpreting [*149] treaties in municipal law in common law traditions.

Recent works such as those of Werner Menski (2006), have argued that law is not a neat category that could be packed into tool boxes for transportation, application and consumption. Rather, according to Menski, the application of international law is contingent on inter-legal interaction in a pluralistic global context. It is the national law making and policy formulating process that determines reception of human rights law. Apart from the legal processes of interaction, transnational networking and social activism also transform the human rights behavior of states through moral pressure. Acceptance of human rights law depends on how various laws interact and how the interaction is shaped by the social and political dynamics. This study discusses the various factors that influence the acceptance of rights, such as the level of democratization and its relationship with transnational involvement, linkage with colonial past and social networks, particularly of NGOs. The authors have illustrated that the distinctive nature of institutional capacity in different legal traditions influences state’s receptivity of international law. For instance, in common law and plural legal systems, judicial interpretation plays a dominant role as judicial actors build on jurisprudence emerging in other common law jurisdictions to formulate their legal opinions. Contrarily, in civil law systems, statues are important, and in Islamic states, the executive plays a domineering role.

Methodologically, the book builds on a comparative case study approach linked to particular legal traditions, based on UNICEF study of law reform in developing countries. All the countries covered in this study are post colonial developing societies. The book is organized into four chapters, studying the impact of the Children’s Rights Convention in Civil Law, Common Law, Islamic and African states. The case studies consider important challenges to implementation of CRC in different country contexts in an effort to achieve children’s rights uniformly across widely divergent legal traditions. The authors have pointed out that, while there has been a pattern of law reform to introduce the CRC, this has not been accompanied by adequate reforms in social processes, and also the contradictions between colonial and human rights law restricts harmonization of children’s rights.

Rebeca Rios-Kohn in the first chapter, “A Comparative Study of the Impact of the Convention on the Rights of the Child: Law Reform in Selected Common Law Countries,” argues for incorporation of CRC into domestic law and for Constitutional status in the Caribbean commonwealth countries. She shows that, even though there are constitutional guarantees, such as in Barbados, to protect children’s rights, these are not comprehensive and do not include all the human rights contained in the CRC – civil, political, social economic and cultural rights of children. Examining legal developments regarding children’s rights in common law countries, she notes that courts, through judicial interpretation, and civil society can be effective resources for legitimizing children’s rights. For instance, the Inter-American Court’s ruling in the case of WINSTON CAESAR v. REPUBLIC OF TRINIDAD AND TOBAGO on corporal [*150] punishment can influence similar outcomes in Caribbean courts. This area of human rights jurisprudence and social engagement needs to be pushed further to study how socio-legal activism can promote acceptance of human rights law in different political and legal contexts.

The second chapter by Emilio Garcia Mendez, “A Comparative Study of the Impact of the Convention on the Rights of the Child: Law Reform in Selected Civil Law Countries,” provides an account of the processes through which national laws in civil law countries – Azerbaijan, Armenia, Burkina Faso and the Dominican Republic – are to be brought in line with the provisions of CRC. Mendez notes that the main obstacle to realization of children’s rights in these countries is the relationship established historically between adults, institutions, and children, because of which there is a lack of political prominence of children’s issues in the region. This chapter underlines the need for crucial law reform in the social sector along with advocacy and training of key players to encourage development of sustainable children’s rights social policies. The case of the civil law countries resonates well with leading literature that relates human rights to levels of democratization.

Shaheen Sardar Ali, in “A Comparative Perspective of the Convention on the Rights of the Child and the Principles of Islamic Law: Law Reform and Children’s Rights in Muslim Jurisdictions,” makes an important contribution to the discourse of children’s human rights in her analysis of the convergence of Islamic legal tradition and the CRC. While Islamic countries have made many reservations to both CEDAW and CRC, explaining the deep schisms between their culture and the west, Ali points out that equivalent human rights values are present in Islamic culture which should be mobilized to create an enabling environment for children’s rights in these and other jurisdictions. The concept of shared access to resources and social responsibility of children in customary law and Islamic law can be used to promote both accountability in governance and especially socio-economic rights of children. In the countries discussed, the King or the Sovereign head has wide powers, and parliament has an important voice in law reform. Even though these countries work within the Sharia framework, the judiciary plays an important role as interpreter of the laws. Jordan and Morocco have produced progressive law reform on children’s rights. It will be interesting to develop this aspect of Islamic jurisprudence. While one agrees with Ali that cultural tradition is an important means to promote the realization of human rights, a critical question that needs further exploration is the issue of delineating cultural norms. Traditional values such as family, community and social responsibility towards children are dynamic concepts; with the influx of colonialism and colonial interpretation of tradition and custom, the old value of convention has changed.

The final chapter by Savitri Goonesekere, “Law Reform and Children’s Rights in Plural Legal Systems: Some Experiences in Sub Saharan Africa,” contends that the plural basis of law in African countries is the major impediment to realization of children’s rights. The plural legal system [*151] study indicates that in the absence of Constitutional protection, there are legal ambiguities regarding protection of children’s rights as they are subject to various interpretations based on customary practices. This chapter is interesting from the perspective of legal pluralism and also from the perspective of post colonial legal engagement with human rights.

The rich analysis of engagement with children’s rights in diverse legal contexts is a significant step forward in understanding the receptivity of international law in domestic settings. This book takes us away from conventional approaches of studying human rights to a historical and contextual analysis of legal developments. This volume is a powerful advocacy tool for supporting the implementation of the CRC and CEDAW. From the human rights point of view, the authors show how children’s human rights are beyond recognition of certain basic rights of exploitation to include social and economic measures. This study demonstrates that local authorities and the community are equally important agents of implementation, and hence advocacy efforts should target these actors for harmonization of CRC within domestic systems. This is an excellent contribution to the scholarship on globalization and law, comparative jurisprudence, human rights, and international law, and will be extremely useful to both social scientists and legal practitioners alike.

REFERENCES:
Menski, Werner F. 2006. COMPARATIVE LAW IN A GLOBAL CONTEXT: THE LEGAL SYSTEMS OF ASIA AND AFRICA. Cambridge: Cambridge University Press.

Merry, Sally Engle. 2005. HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO LOCAL JUSTICE. Chicago: University of Chicago Press.

Renteln, Alison D. 1990. INTERNATIONAL HUMAN RIGHTS: UNIVERSALISM VERSUS RELATIVISM. London: Sage.

CASE REFERENCES:
WINSTON CAESAR v. REPUBLIC OF TRINIDAD AND TOBAGO. Inter-American Court of Human Rights. Case 12.147. Judgment of 11 March 2005, Series C. No. 123.

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© Copyright 2008 by the author, Sanghamitra Padhy.

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REGULATORY RIGHTS: SUPREME COURT ACTIVISM, THE PUBLIC INTEREST, AND THE MAKING OF CONSTITUTIONAL LAW

by Larry Yackle. Chicago: The University of Chicago Press, 2007. 256pp. Cloth. $35.00. ISBN: 9780226944715.

Reviewed by Amanda Harmon Cooley, North Carolina A & T State University. Email: abcooley [at] ncat.edu.

pp.143-146

Often, textbook definitions of constitutional interpretation are divided into a formulaic delineation: there is a textualist or originalist approach, and there is a Living Constitution or dynamic approach (with little or no explanation as to the distinctions within each of these two, main categorical labels). In REGULATORY RIGHTS: SUPREME COURT ACTIVISM, THE PUBLIC INTEREST, AND THE MAKING OF CONSTITUTIONAL LAW, Larry Yackle attempts to break down the boundaries of this conventional classification by arguing that the textualist and originalist approaches are invalid, and by positing a theory of constitutional interpretation that goes beyond the mere Living Constitution approach. Yackle boldly asserts that constitutional law is activism in the purest sense of the word (and without all of the negative connotations that usually accompany the term); that the nine Supreme Court justices are not relegated to the mere interpretation of the Constitution (the meaning of which is redefined by the author); and that, instead, these justices “create individual constitutional rights” (emphasis added) through a process the author has deemed “rational instrumentalism” (p.1).

Yackle’s primary thesis is that

"substantive federal constitutional rights draw their meaning exclusively from the great body of relevant Supreme Court decisions and that the only content those rights enjoy, abstracted from the Court’s decisions, can be reduced to a single doctrinal idea: Government acts constitutionally if it acts instrumentally, adopting policy as a sensible means of achieving public ends. (pp.2-3)"

Because of the admittedly unorthodox nature of Yackle’s central argument and the inherent paradigmatic shift that is required to agree with all of the author’s claims, it appears that REGULATORY RIGHTS will serve as a bone of contention for today’s constitutional scholars and political scientists. However, an in-depth examination of the four-part structure of Yackle’s argument proves that the author provides a compelling, yet not entirely convincing, argument regarding the Supreme Court’s jurisprudence of substantive constitutional rights.

In Chapter One, the author’s overall intent is to dispel the asserted “myth” that the United States is governed by the historical, documentary Constitution, as drafted in 1787, ratified in 1789, and subsequently amended. Yackle acknowledges the importance of the written Constitution as a cultural and political symbol. However, he asserts that the “real Constitution” cannot be found within the four corners of the document itself; rather, it “resides in the stream of incremental judgments the Supreme Court makes in individual [*144] cases and in the doctrine the Court offers to organize its thinking” (p.51). In arriving at this “redefinition” of the Constitution (as opposed to both popular and certain academic conceptions of the Constitution), Yackle also outlines why textualism and originalism are completely inadequate measures for constitutional interpretation, stating that the “Court only pretends to invoke the text of the historical document as the source of constitutional meaning and actually decides hard cases on the basis of pragmatic judgment” (p.35), and that the “Court’s actual decisions regarding hard constitutional questions openly defy any sort of originalist foundation” (p.50).

Yackle’s extensive use of historical and contemporary sources in Chapter One bolsters his markedly persuasive claims as to the invalidity of textualism and originalism (of course, this reading would not likely convince those individuals in the Scalia camp of constitutional interpretation). The author’s perspective on the composition of the “real Constitution” may not have commensurate, persuasive sway on all of the readers of this volume. Essentially, Yackle’s claim that the predominant conception of the documentary Constitution is an emperor [who] has no clothes might not find complete resonance in today’s discourse on constitutional meaning. Be that as it may, Yackle’s novel thesis, as expressed in the remaining chapters of the text, requires further analysis in order to arrive at a complete explication of the significance of this book in the context of constitutional debate.

In Chapter Two, Yackle outlines the historical, philosophical, and political underpinnings of the process of rational instrumentalism that he asserts as the basis for the making of constitutional law. He couches these foundational ideas “around four overlapping themes: the rejection of natural-rights theory, the concomitant recognition that government is largely responsible for the measure of freedom that individuals enjoy, the acceptance of governmental power to regulate private activities for the larger social good, and the abiding effort to distribute authority between the Supreme Court and more politically accountable institutions” (p.8). Several points within these themes are of particular import in the formulation of Yackle’s substantive theory. First, in his discussion of the “premise underlying rational instrumentalism . . . that individual freedom depends on the laws that human beings create for themselves – not natural rights,” Yackle outlines the progression of this premise from Lockean theory to modern jurisprudence, using the oft-cited LOCHNER v. NEW YORK (1905) case as illustrative support to his argument. While this analysis is worthy of note, of more interest is Yackle’s treatment of WEST COAST HOTEL v. PARRISH (1937), in which the author concludes that there “is no liberty of contract arising from a previous state of nature. There is only the constitutional right to due process of law, triggered by a deprivation of life, liberty, or property” (p.63). Yackle’s conclusion here with respect to the Court’s dialectic between rights and liberties is emblematic of his overall treatment of the Court’s doctrinal articulations of substantive constitutional rights in Chapters Three and Four. Therefore, an understanding of the author’s contentions in his discussion of the positivist perspective of today’s judicial system is central to a comprehension of Yackle’s entire thesis. [*145]

Yackle’s assertions in the third section of Chapter Two that “government is free to make regulatory adjustments in the interests of society as a whole” (p.68), which he illustrates through the line of reasoning in the police power Supreme Court decisions, and that, in those cases, “government generally is entitled to wide discretion” (p.74), provide further support for the existence of rational instrumentalism as a judicial, deliberative process. These assertions also strengthen his fourth theme in Chapter Two that the judiciary’s deference to legislative authority is a rational-judgment, democratic response and that the Court’s “role is not generally to second-guess the wisdom of the policies selected by more politically sensitive institutions, but to ensure that governmental action genuinely serves the public interest” (p.82).

With his thematic foundation in place, Yackle proceeds in Chapter Three to explain how the means/ends inquiry of rational instrumentalism can be found “in all the doctrinal formulations the Court offers for substantive rights” (p.84), which include the right to due process of law, the right to equal protection of the law, the rights of freedom of speech and religion, and the right of freedom from cruel and unusual punishments. In his treatment of the right to substantive due process, Yackle returns to his distinction between rights and liberties within Supreme Court rhetoric and decision-making, stating that the Court does not “really mean that substantive due process serves only to introduce other independent rights into the mix. They mean . . . that the right to be enforced is the right to due process itself, and they only confuse matters by using the terms rights, liberty, and interest interchangeably” (p.100). This discussion, as applied to the First and the Fourth Amendment, leads Yackle to the same conclusion that he has asserted throughout the text: when it comes to difficult constitutional questions, the “basic standard is always essential reasonableness and, accordingly, rational instrumentalism” (p.106). This conclusion permeates the discussion of equal protection, freedom of expression, and Eighth Amendment cases that compose the remainder of Chapter Three.

Interestingly, Yackle cites the prominent language in TROP v. DULLES (1958), in which the Supreme Court stated that, in Eighth Amendment cases, it must draw “meaning from the evolving standards of decency that mark the progress of a maturing society.” However, instead of addressing the dynamic approach to constitutional interpretation that is articulated in this decision and how his claims elaborate or improve upon that approach, Yackle states that “it is only important to recognize that they [the justices] exercise judgment within the familiar framework provided by rational instrumentalism” (p.121).

Chapter Four provides a culmination of the themes and theories put forth in the preceding chapters. In this chapter, Yackle’s objective is “to examine modern illustrations of the work the justices actually perform in cases involving substantive rights” and to “illuminate the difficult judgments that rational instrumentalism calls on the justices to make” (pp.125-126). After this articulation of purpose, Yackle catalogues the standards of review employed by the Court, with the underlying proviso that, no matter which standard of review is selected, the “justices exercise reasoned judgment” [*146] (p.127). The analysis of Supreme Court deliberation then proceeds to a discussion of the importance of characterizing the “means by which government has chosen to regulate” in cases. Yackle uses the LAWRENCE v. TEXAS (2003) case as the epitome of the type of “judgment that rational instrumentalism calls on the justices to exercise” (p.142). In this example and in his overall discussion of this stage of the judicial process, the author continues to fortify the theme that, “in the end, the justices can only consult their best judgment” (p.144). This notion continues as an undercurrent to the discussion of the characterization by the Supreme Court of the individual interests at stake and the ends that governmental means may permissibly serve. These characterizations are illustrated by a wide variety of cases, ranging from ROE v. WADE (1973) to GRUTTER v. BOLLINGER (2003), in which Yackle highlights the “numerous problems that rational instrumentalism brings to the fore and, concomitantly, the expansive room this doctrinal formulation allows for judgment” (p.173).

REGULATORY RIGHTS concludes with the same type of bold assertion with which it begins; Yackle states that rational instrumentalism “does not determine results . . . it only . . . helps to identify the issues,” and he asserts that his “account of substantive rights leaves them pretty much up to the men and women who reach the Supreme Court” (p.173). Some readers of this text may not be prepared to agree fully with these types of claims. However, Yackle has provided a clear and innovative perspective on constitutional analysis and meaning, which ambitiously expands upon the staid, conventional approaches to constitutional interpretation. While one may not agree with all of Yackle’s ideas, his identification of rational instrumentalism as a key component of Supreme Court decision-making will be an important aspect to evaluate in certain 2007 Term Cases, specifically in BAZE v. REES (2008) and CRAWFORD v. MARION COUNTY ELECTION BOARD (2008). Within the oral arguments for each of these cases, many of Yackle’s themes can be seen; the content and substance of the written decisions may propel REGULATORY RIGHTS into the forefront of debate over the Supreme Court and constitutional law.

CASE REFERENCES:
BAZE v. REES, (No. 07-5439), __ U.S. __ (2008).

CRAWFORD v. MARION COUNTY ELECTION BOARD, (No. 07-21), __ U.S. __ (2008).

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

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

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

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

TROP v. DULLES, 356 U.S. 86 (1958).

WEST COAST HOTEL v. PARRISH, 300 U.S. 379 (1937).

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© Copyright 2008 by the author, Amanda Harmon Cooley.

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MONETARY REMEDIES FOR BREACH OF HUMAN RIGHTS: A COMPARATIVE STUDY

by Lisa Tortell. Oxford, UK: Hart Publishing, 2006. 236pp. Hardback. £48.00/$100.00. ISBN: 9781841135113.

Reviewed by Srini Sitaraman, Assistant Professor, Department of Government and International Relations, Clark University, Worcester, MA. Email: SSitaraman [at] clarku.edu.

pp.138-142

MONETARY REMEDIES FOR BREACH OF HUMAN RIGHTS is a fascinating comparative study of the domestic cause of action for securing monetary remedial measures for violation of fundamental rights, constitutional rights, or basic human rights in three countries – United States, New Zealand, and India – with an exploratory chapter devoted to the potential application of the legal measures developed in these three countries to the United Kingdom and its implication for common European human rights law. Although the book is about monetary remedies, the author, Lisa Tortell, does not examine the necessity, desirability, or effectiveness of monetary remedial measures per se. Instead she concentrates on the ‘cause of action’ by identifying the common and unique legal features in United States, New Zealand and India and focuses on the trend towards cross-jurisdictional convergence of these remedies. Tortell is particularly inspired by emerging literature on transjudicial relations – communication across and between national and supranational courts – in which legal developments in one country are translated or applied to other countries. The larger claim here is based on the belief that exciting legal developments in one country are no longer geographically bound, but that they are increasingly by-products of transnational learning and cross-border legal fertilization. To this extent, Tortell wants to examine the process of monetary remedies for human rights violations in three countries that share common British colonial and linguistic heritage, English common-law influences, and a democratic political system.

Tortell cleverly avoids the terminological minefield surrounding the question of what exactly constitutes a human rights violation and what is a monetary remedy for such breaches by lumping together human rights, constitutional rights, basic rights, and fundamental rights; similarly, she relies on the concept of monetary remedy, instead of trying to distinguish among compensation, damages, reparations, or monetary award. Now, the usage of the term ‘monetary remedy’ to describe awards sanctioned by the courts for human rights violations across different nation-states is an effective strategy. However, equating constitutional rights, fundamental or basic rights, and human rights seems bit problematic. Tortell should be commended for avoiding the pitfalls of being drawn into terminological battles over the definition of what exactly qualifies as a human rights violation and what does not. However, one can contend that egregious violation of human rights such [*139] as genocide, slavery, torture, rape, beatings, unlawful detention, denial of medical services, and other types of physical harm are qualitatively different when compared to breaches of constitutional rights in instances such as the failure to obtain a proper search warrant while conducting home searches or other such invasions of privacy by governmental agencies. Granted, in both instances there has been a breach of law by governing authorities causing distress to citizens. But, because of the significant variations in degree of human rights violations, one could potentially make a case for drawing qualitative distinctions among different types of violations that would have a differential causal effect on the legal outcome and monetary remedies. We could presume that the more egregious the human rights infringement, monetary penalties will be appropriately steeper, but that always has not been the case because of variations in the cause of action jurisprudence among the three country cases under examination.

Tortell, however, cannot be criticized for her desire to sidestep this definitional issue because the interdisciplinary field of human rights has not yet determined how to rank and differentiate among the vast array of positive and negative rights that generally tend to get lumped together under the label ‘human rights,’ thus masking the variations and complexity of human rights issues across the 192 states in the international system. Nonetheless, the problem persists as to whether the BIVENS case in the United States and BAIGENT’s case in New Zealand are equivalent and comparable to the KHATRI and RUDUL SAH cases in India. BIVENS involved violation of fourth amendment constitutional rights against unreasonable searches and seizures when it was alleged that six federal agents had arrested and unlawfully searched the home of the plaintiff without an arrest warrant or probable cause. Similarly in the BAIGENT’s case in New Zealand, a warrant was executed to search the home of a suspected drug dealer. However, even when it was discovered in mid-search that the police had the wrong address, the action was not halted; instead the agents continued with the search despite their new understanding. The KHATRI case involved systematic blinding of prisoners in a state prison, and in RUDUL SAH, the petitioner was not released from police custody for 14 years after the court had formally acquitted him of the crimes charged. Both the Indian cases identify instances of egregious and gross violation of human rights that do not seem to be commensurate with BIVENS or BAIGENT, which involved unreasonable searches and seizures. Enormous variations in the context and scale of human rights violations definitely present some troublesome definitional and comparative analytical challenges when comparing cases from United States, New Zealand, and India under the rubric of monetary remedies for breach of human rights.

Another not immediately evident aspect of Tortell’s book is that it is less about the validity, effectiveness, or the quantum of monetary remedies, but principally, it addresses the cause of action or the legal claim, which determines the causes and conditions under which individuals could seek monetary redress for breach of their rights in domestic courts. The book is entirely focused on legal analysis of [*140] cause of action; it is not an inquiry into various types of human rights violations and the quantum of monetary remedies, and its legal and moral impact. Put differently, this book is about the comparative analysis of the common cause of action claims in different countries and less about human rights violations per se. The bulk of the book is devoted to the issue of ‘cause of action’ that determines the range of governmental bodies and individuals serving in their official capacities who are legally liable for rights breaches. One more clarification is warranted. Tortell is only interested in studying the public cause of action in instances of human rights infringements and does not consider private causes of action (torts), which has a well-established and highly developed jurisprudence particularly in the United States. In other words, the key question that this book examines concerns the conditions under which public officials serving in their official capacities for governmental agencies could be sued for conduct that results in the breach of human rights. As Tortell puts it, “the defendant . . . must be a state actor and the breach must be caused by the exercise of a public right or privilege or a state-imposed rule of conduct, or by a person for whom the state is responsible” as exemplified by the case of the United States (p.100). The first three chapters are devoted to the structure and organization of cause of action in three jurisdictions – United States, India, and New Zealand. Two chapters in the middle section are devoted to comparative analysis of the structure of cause of action in the three country cases, and the last section consists of extension of the framework of analysis to consider the “cause of action for breach of human rights sounding in the monetary remedy in England, contained in Section 8 of the Human Rights Act of 1998” (p.181).

Out of the eight chapters, the two core chapters in the middle of the book are exclusively devoted to the structure and overarching influences of cause of action. In Chapter Five, Tortell poses and answers the following questions: (1) what does the cause of action protect, (2) whom does the cause of action protect, (3) against whom is the cause of action directed, and (4) what does the court order. In Chapter Six, Tortell extends the analysis to examine the overarching transboundary implications of cause of action and its consequent remedies by posing four fundamental questions: (1) what is the source of the cause of action, (2) what is the age of the cause of action, (3) what is the wider context of the cause of action, and (4) what is the internal context of the cause of action.

The fifth and sixth chapters are quite comprehensive and are the two most interesting and central chapters, which illuminate the complexities, commonalities, and unique features of the legal systems in United States, India, and New Zealand. It is not particularly surprising, as Tortell reports, that in the United States, monetary remedies for breach of human rights is a well-developed product of an established judicial system and generated by the evolution of the US Constitution over two centuries accompanied by strong rights jurisprudence. The important corollary that Tortell correctly observes is that the United States has also developed a complex and intricate set of procedural rules governing the process and scope of claims that can be brought for trial. Importantly, in the United [*141] States, it is necessary to demonstrate that the injury is concrete and not speculative, was caused by the defendant’s conduct, and that the injury is redressable in a court of law (p.97). This means that there must be demonstrable fault before the court holds those serving in official capacity to be liable. In comparison, both India and New Zealand have not established procedural rules governing the scope and conditions under which breach of rights claims can be presented before the court. The relative newness of human rights jurisprudence in New Zealand and the stable socioeconomic and political climate has not necessitated any urgency in the development of rigorous standing rules. That, however, is not the case in India, where an expansive array of legal claims for the breaches of various rights is litigated through the public interest litigation (PIL) mechanism. India is particularly interesting because of the wide latitude the courts have afforded themselves in entertaining a broad variety of cases under Article 32 and Article 226 of the Indian Constitution ranging from increases in railway fares and violation of traffic laws to breaches of human rights. It is easier to establish cause of action through public interest litigation and secure remedy in India compared to the United States because of its strict procedural rules and qualified immunities. Nonetheless, it is clear that not every public interest case results in a successful outcome and leads to monetary remedies; nor has litigation produced a body of jurisprudence enabling specific and clear pathways for establishing proper human rights legal claims. This point is not sufficiently emphasized by the author, who is more focused on the contours and process of cause of action, and on drawing broader conclusions using the three country case studies.

What has happened in India is that an activist court with an expansive definition of legal claims has become an aggressive player in directing public policy, allowing a broad array of public ills to be litigated to strengthen governance and improve the effectiveness of various governmental agencies. Indian courts, Tortell writes, have “developed an ‘epistolary jurisdiction’ by relaxing rules of procedure to allow a broader range of cases to be presented before the court (p.93). The author is indeed accurate in pointing out that such latitude in the range of accepted cases and the lack of standing rules are intentional because of India’s low human development index. Legal complexity and strict procedural rules will increase the potential for disproportionate impact on individuals with lower levels of literacy (p.160). In other words, procedural rules limiting public interest lawsuits are deliberately relaxed to enable legal redress to all sectors of the population by reducing the complexity of laws and procedures. Although the expansion of public interest litigation is a welcome development, it is not entirely clear if this is sufficient to protect a broad range of human rights abuses. Public interest litigation in India is not an exclusive or sufficient remedy for human rights breaches when compared to the Bill of Rights remedies in New Zealand, and the Section 1983 and BIVENS cause of action in the United States. It seems that public interest litigation is restricted in what it can achieve because it functions as a grab-bag serving multiple purposes, such as governing the content or conduct of public policies and implementation of laws, [*142] compelling governmental authorities to perform their public duty with diligence and without corruption, and protecting against the infringement of religious or other constitutional rights. Compared to the United States, the deterrent impact and the punitive effect of public interest litigation on human rights violations might be inadequate. India direly needs specific and targeted human rights laws, maybe even a separate human rights court, to construct remedies and confront widespread abuse of constitutional rights, fundamental breaches of law, and systematic human rights violations as evidenced by the KHATRI and RUDUL SAH cases.

The bigger conclusion that Tortell draws from the comparative analysis is that there is a growing movement towards development of international human rights common law, demonstrated by the evolutionary trend towards the convergence in United States, New Zealand, and India, even with significant local variations in the structure and process of cause of action inspired by globalization and comparative legal learning (p.150). Despite differences in the local conditions, she argues that the cause of action across different states are “intrinsically and subtly attracted to similarity,” which suggests progress towards a “common international human rights norm” that also affects the “general mood of the cause of action as a whole” (p.151). It is difficult not to agree with this conclusion, and the general trend that seems headed towards a broad normative convergence on global human rights. A bit more space and effort could have been devoted to exploring how the micro processes of comparative legal learning and globalization generates this trend towards convergence both in the area of norms and cause of action. Why is convergence occurring, and why are states eager to mimic each other? To be fair, Tortell does not set out to answer these questions; she is more interested in showing the parallels in cause of action in different national jurisdictions in instances of human rights breaches.

Overall, Tortell does a thorough and careful job of analyzing the process of submitting legal claims for human rights violations, notwithstanding some redundancies in the discussion of cause of action in United States, New Zealand, and India. Legal scholars, social scientists, and graduate students interested in comparative law, human rights, and transnational legal learning will benefit immensely from MONETARY REMEDIES FOR BREACH OF HUMAN RIGHTS.

CASE REFERENCES:

BIVENS v. SIX UNKNOWN FEDERAL NARCOTICS AGENTS, 403 U.S. 388 (1971).

KHATRI v. STATE OF BIHAR (1981) 1 SCC 627.

RUDUL SAH v. STATE OF BIHAR AIR 1983 SC 1086.

SIMPSON v. ATTORNEY-GENERAL [BAIGENT’S CASE], [1994] 3 NZLR 667.

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© Copyright 2008 by the author, Srini Sitaraman.

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BEYOND THE LAW: THE BUSH ADMINISTRATION’S UNLAWFUL RESPONSES IN THE “WAR” ON TERROR

by Jordan J. Paust. New York: Cambridge University Press, 2007. 326pp. Hardback. $85.00/£45.00. ISBN: 9780521884266. Paperback. $29.99/£17.99. ISBN: 9780521711203. eBook format. $24.00. ISBN: 9780511353031.

Reviewed by Keith Rollin Eakins, Department of Political Science, The University of Central Oklahoma. Email: keakins [at] ucok.edu.

pp.135-137

In response to the deadly attacks against the United States on September 11, 2001, the Bush Administration engaged in an illegal, “dirty war” against terrorism involving cruel and inhumane treatment, secret detention, and forced disappearance of captured persons, while simultaneously lying about and denying the occurrence of these events. Such tactics violated international law, degraded American values, weakened US influence abroad, and threatened American democracy and the rule of law. These are the dire conclusions of Jordan J. Paust, Professor of International Law at the University of Houston, in his thoroughly documented work, BEYOND THE LAW: THE BUSH ADMINISTRATION’S UNLAWFUL RESPONSES IN THE “WAR” ON TERROR.

Paust is the author of INTERNATIONAL LAW AS LAW OF THE UNITED STATES which argues strenuously in favor of the primacy of international law over national law, and this theoretical approach guides much of his harsh criticism of the Bush administration’s efforts in fighting terrorism. Paust’s book is divided thematically with chapters consisting of revisions of his previously published law journal articles. Given the book’s structure, I will present a brief summary of its themes, followed by an overall assessment.

Paust begins by documenting how the administration planned and facilitated the denial of Geneva Convention protections for those detained in the conflicts in Iraq and Afghanistan. For example, Seceretary of Defense Donald Rumsfeld approved illegal tactics such as stripping detainees naked, employing hoods, using dogs, and so on. Although Rumsfeld later rescinded blanket approval of these tactics, a Department of Defense Working Group he created legitimated them by declaring that Geneva Convention protections do not apply to members of al Qaeda and the Taliban. Paust argues that these plans and authorizations are criminal violations of the laws of war.

He then examines the topic of “war and enemy status,” asserting that under international law the United States cannot be at “war” with al Qaeda as it has none of “the characteristics of a state, nation, belligerent or insurgent” (p.49). Paust discusses the international legal tests for prisoner of war status, combatant status, and combatant immunity status, and argues that the administration’s attempts to change the laws of war by denying protections to those qualified – such as regular armed [*136] forces of the Taliban – are ill-conceived and dangerous.

He then analyzes the authority to determine detainee legal status and rights and argues that international and US law require judicial review and, contrary to Bush administration claims, do not sanction complete deference to the Executive. Paust asserts that international law applies “as law of the United States” because the US is bound by the treaties to which it has agreed and because “customary international law is part of the laws of the United States” (p.71). Furthermore, he discusses US Supreme Court and lower federal court decisions in cases such as HAMDI v. RUMSFELD, PADILLA v. BUSH, and others, concluding that “judicial robes must not smother liberty and due process” lest they be “in some measure complicit in terrorist attacks on human and constitutional rights” (p.84).

Paust next blasts the Bush administration’s controversial assertions of expansive commander in-chief powers which he refers to as the “commander-above-the-law theory.” He argues it is an illegitimate justification for the violation of international law – such as the US engaging in illegal interrogation of detainees – as well as the transgression of domestic law – such as Bush administration ignoring the Foreign Intelligence Surveillance Act (FISA) and engaging in illegal surveillance. Paust states that the administration’s preference for this legal theory is ahistorical, ideological, and contrary to legal precedent and the views of the majority of the Founders and Framers of the Constitution. He argues further that the 2001 congressional Authorization for Use of Military Force (AUMF) did not authorize a “war,” but rather a limited use of appropriate and necessary force against those directly involved in or aiding the 9/11 attacks.

Finally, Paust criticizes the Bush administration’s anti-terrorism Military Commissions. The initial program, he argues, involved clear “violations of human rights, the laws of war, and various other international laws” (p.119). For example, the Department of Defense (DOD) rules denied detainees the right to obtain meaningful judicial determination of the lawfulness of their detention. Furthermore, detainees were subject to unfair rules of evidence inadmissible in US courts or courts-martial. The scheme, Paust concludes, is one that is fundamentally “mean-spirited” and “anti-American” in tone (p.119) and he discusses the Supreme Court’s criticism of it in HAMDAN v. RUMSFELD as well as the many shortcomings unresolved in the subsequent Military Commissions Act of 2006.

As one might suspect from the book’s title, Paust is unrestrained in displaying his passionate opposition to the actions of the Bush administration, and some readers accustomed to a more neutral tone may be put off. Obviously, big stakes are involved, and Paust seems to want to leave readers with a sense of his perception of the magnitude of harm done and costs incurred by the Bush administration. Nevertheless, his outrage seems to cause him to make occasional important, unsupported assertions outside his area of expertise. For example, he claims: “Resultant war crimes have undoubtedly contributed to increased violence in Afghanistan and Iraq and have served as a terrorist [*137] recruitment tool” (p.46). Of course this is a plausible argument to make, but it begs citation. Paust’s outrage also seems to cause him to dish out a great deal of moral condemnation of the Bush administration. For example, in decrying their treatment of terrorism suspects, Paust even goes so far as to quote the Bible: “’Verily I say unto you, inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.’ Matthew 25:40” (p.46).

But Paust is more effective as international law scholar than as moralizer and his expertise is evident. While many of his arguments are familiar, his legal analyses, despite being one-sided and occasionally naïve (for example, he makes an earnest argument about “unanimous affirmations by Framer’s and Founders” (p.20)), are solid, and his extensive citations undergird them with authority and rigor sometimes lacking in similar works. And the book’s overall theme – the assertion that the US must be subject to international law – is woven skillfully and relentlessly throughout the various issues addressed in the book. However, because Paust takes a traditional legal approach to his arguments, this book may be of limited use for those instructors who emphasize the “science” aspect of their political science courses.

In conclusion, the book is a provocative, fairly well-researched critique of the Bush administration’s war on terror. It raises important questions about the desirability of the US government’s current tactics in this struggle, makes convincing arguments about their patent illegality both in violating domestic and international law, and presents a strong case for the primacy of international law over US law. Paust’s conclusions are jarring and make a significant contribution to this important public debate. Because the book is a collection of Paust’s revised law journal articles, however, it is at times both disjointed and redundant and, most notably, lacks a concluding chapter tying it all together.

This reviewer would recommend the book as a supplemental text for an upper-division undergraduate civil liberties course (it is a short book – in typical law review fashion its 167 pages of notes garner more room than the main text). However, given Paust’s strong opinions, and his general failure to consider those contrary to his, it is recommended that it be paired with a work offering an opposing viewpoint.

REFERENCES:
Paust, Jordan. 2003. INTERNATIONAL LAW AS LAW OF THE UNITED STATES. Durham, NC: Carolina Academic Press.

CASE REFERENCES:
HAMDAN v. RUMSFELD, 126 S. Ct. 2749 (2006).

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

PADILLA v. BUSH, 233 F. Supp. 2d 564 (S.D.N.Y. 2002).

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© Copyright 2008 by the author, Keith Rollin Eakins.

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CONTRACT AND DOMINATION

by Carole Pateman and Charles Mills. Malden, MA: Polity Press, 2007. 320pp. Hardcover. $69.95. ISBN: 9780745640037. Paper: $26.95. ISBN: 9780745640044.

Reviewed by David Schultz, Graduate School of Management, Hamline University. Email: Dschultz [at] hamline.edu.

pp.132-134

Contractual metaphors occupy center stage of modern western theories of law. The images of individual consent symbolize the emergence of, according to Henry Maine, modern societies out of traditional communities. However, the social contract tradition, as articulated by Hobbes, Locke, Rousseau, and Kant, enable theories of political obligation, obedience, and legitimacy. While once accepted as literally true historic anthropological events, social contract theorizing came to operate as a heuristic device to defend, at least with John Locke, limited government over that of the unlimited monarchial powers of the king.

But the formation of the social contract is fraught with numerous problems. David Hume for one questioned the historical origins of society, rejecting consent in favor of usurpation as the origin of government. C.B. McPherson spoke for a generation of Marxist scholars who saw class tensions in the social contract tradition. Yet while concerns about how class compromised the social contract once dominated critiques, the turn toward identity politics in the last generation has also raised questions about who is part of this covenant. Carole Pateman’s influential THE SEXUAL CONTRACT came first, asserting that women were both part of, and excluded from the original contract. For the sake of legitimacy one has to assume women consented to the contract, but the strength of Pateman’s book was in demonstrating how so often they seemed invisible and that the contract was really only among men. Charles Mills followed upon Pateman’s argument, arguing in his THE RACIAL CONTRACT that the social contract presupposed a prior racial contract that excluded slaves, Blacks, and other people of color. Together, Pateman’s and Mills’ arguments demonstrated that there were multiple agreements within the social contract tradition, yet many who were affected by their terms were excluded from the bargaining table. Moreover, their respective scholarship begged for a synthesis and collaboration, bringing together a theory of race, gender, and social contracts. The product of that collaboration is the greatly anticipated CONTRACT AND DOMINATION.

For readers hoping CONTRACT AND DOMINATION would produce La grande théorie, they will be disappointed. While the book is engaging and often thought-provoking, CONTRACT AND DOMINATION is less than a book and more than a collection of discrete essays by both of the authors. While Chapter One is a narrative dialogue between Pateman and Mills, the remaining seven chapters are split between the two, and they seldom seem to talk to one another. In Chapter [*133] One the epistemological and ontological differences between Pateman and Mills become obvious. Pateman would throw away contracts as a useful tool for democratic theory, seeing them as inherently exploitative and unredeemable. As her discussion of settler contracts in Australia demonstrate, contracts per se seem almost imposed by the strong on the weak, ala what Hume argues or how Rousseau describes them in his SECOND DISCOURSE. Mills, conversely, hopes to salvage contractual metaphors, finding possibilities in continuing to use consent to ground authority, although in ways that differ from the historical employments of the term. In addition, because Mills seeks to preserve contracts, he more so than Pateman succeeds in moving toward La grande théorie that brings together race, gender, and class domination into one construct. The “racia-sexual contract,” as he calls it, is complex. It notes the crosscutting cleavages that produce four social positions for white women, Black males, and so on. Add class dimensions and what he produces is not so much a theory of a single contract but multiple ones within a single society. The problem, as he notes, in drawing upon the work of Kimberly Crenshaw, is that the law has a difficult time in examining racial and gender (and class) intersections, and the same is true here with how we understand identity, power, and domination within the social contract tradition.

Upon finishing CONTRACT AND DOMINATION one is left with the feeling of an incomplete project. Pateman and Mills each pen their last chapters as rejoinders to critics, but they never really collaborate in forging a shared epistemology of how one should think about race and gender. While their respective discussions are interesting, they offer little in terms of new insights. Nor does the choice of Pateman’s – throw out contracts – or Mills’ – preserve them with a grander complex concept of unification – prove as satisfactory resolution. Where should the book have gone instead?

Missing from this volume is reference to Hegel and perhaps a dialectic that both preserves and transcends the concept of contracts and consent. Or instead of viewing social contracts as levers of individual choice, one needs to view them as social contracts defining how human interaction is organized. Second, contracts could be examined through a master/slave dialect of struggle, seeking to understand the terms under which choice and consent are possible. Third, there are possibilities to asking either a Kantian or Postmodern question: Under what conditions is it even possible to discuss consent? Perhaps here the Critical Legal Studies movement got it right in questioning the conditions under which any contract can be the product of individual choice. Overall, CONTRACT AND DOMINATION, despite its failure to produce a broader theory of race and gender, nonetheless raises good questions and portends more research into the continued viability of contracts as a basis for thinking about the law.

REFERENCES:
MILLS, CHARLES. 1999. THE RACIAL CONTRACT. Ithaca, NY: Cornell University Press. [*134]

PATEMAN, CAROLE. 1988. THE SEXUAL CONTRACT. Stanford: Stanford University Press.

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© Copyright 2008 by the author, David Schultz.

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WE’RE ALL JOUNRALISTS NOW: THE TRANSFORMATION OF THE PRESS AND THE RESHAPING OF THE LAW IN THE INTERNET AGE

by Scott Gant. New York: Simon and Schuster, 2007. 256pp. Hardcover. $26.00. ISBN: 9780743299268.

Reviewed by Thomas Shevory, Department of Politics, Ithaca College. Email: shevory [at] ithaca.edu.

pp.128-131

Scott Gant’s recent book about the nature of journalism in a “new media” environment is compact, accessible, and chocked full of provocative arguments that confront the conventional wisdom that freedom of the press requires special prerogatives for practicing professional journalists. Seldom does such a short book have the kind of impact on your thinking about a topic as this one had one mine. Given the dearth of incisive analysis on the First Amendment implications of new media, the book is a welcome contribution.

Gant’s thesis is simple, straightforward and stated in the title. He is suggesting that the boundaries between professional journalism and the communications of ordinary citizens are collapsing, if they have not already collapsed. Moreover, legal rulings have provided a mixed and confusing picture of current professional protections of journalism. Gant steps into this fluid context with an intervention that is both conceptual and practical. He wants his readers to understand the nature of changes that are occurring, and he wants practical changes in law and policy that reflect these broader underlying structural transformations.

Gant begins with consideration of some of the privileges that are now offered to American journalists, distinguishing them from ordinary citizens who participate in new media practices, such as online newsletters, digital journals, and blogs: The Department of Justice sets a higher bar for subpoenaing journalists. Journalists are often given access to war zones that are not allowed to others, as has been the case in both Iraq wars. Journalists are permitted to take notes during Supreme Court oral arguments, while other audience members are not. Scott rejects these protections, stating, “Although many thoughtful observers embrace the view that professional journalists should be routinely afforded rights and privileges unavailable to others, I believe it is misguided. The circumstances in which it is necessary and justifiable to extend preferential treatment only to them are few . . . The First Amendment is for all of us – and not just as passive recipients of what the institutional press has to offer” (p.5).

Courts, in fact, seem increasingly unwilling to offer legal protections for the traditional press, a trend that Gant attributes partly to its declining credibility in the public’s eyes. Wen Ho Lee, for example, reached a large monetary settlement with both the federal government and news organizations after he was publicly, and apparently unfairly, accused of being a Chinese spy. The subpoena of a reporter [*129] for the WILKES-BARRE TIMES LEADER to obtain information about a murder suspect that he had interviewed was upheld in Pennsylvania court. NEW YORK TIMES reporter Judith Miller was famously confined to jail for not revealing a source connected to the Valerie Plame-Wilson case.

The professionalization of news, as Gant notes, is a development that occurred during the course of the twentieth century. In preceding eras, news gathering, writing, and distribution was more open, fluid, and unruly. The development of professional standards occurred with the growth of large news gathering organizations, first print media, and then radio and television. Over time, the growth and consolidation of these organizations has led to a decline in the quality and diversity of news products and a concomitant loss of faith and prestige on the part of various publics with regard to news media. As Gant notes, “we are caught in a cycle in which the ambitions of news organizations and the appetites of news consumers are collectively diminishing the breadth and quality of reporting at most news organizations.” Consumers’ are waging what James Fallows has referred to as a “‘quiet consumers’ boycott” (p.23).

New media practitioners are to some extent filling the void left by declining diversity and increasing superficiality among traditional media sources. Their attempts to gain some legal protections as journalists has produced mixed results. When Apple filed a lawsuit against a website that had leaked information about its new products, the California Court of Appeals decided in favor of the website, including its publishers on the state’s journalistic shield law. On the other hand, Gant cites a Texas case which upheld a blogger’s exclusion from covering a state transportation conference because he was not deemed a member of the “mainstream media,” and a Kentucky case where a blogger was denied access to cover the state’s General Assembly (p.42).

Gant includes a very good chapter on the meaning of the “Press Clause” in the First Amendment. As he notes, the framers of the Constitution, were suspicious of licensing practices, which they associated with English law, and which were rightly viewed as a mechanism to limit press freedom. Legal and institutional standards that protect journalists as professionals look suspiciously like licensing requirements, and thus seem antithetical to the ethos of press freedom foreseen by the framers. Moreover, the framers had a very expansive view of what constituted “the press,” including, books and pamphlets. This makes sense given the importance of political pamphlets, such as Thomas Paine’s, to the success of the American Revolution.

The Supreme Court, it turns out, has not been willing to carve out special legal protections for members of the press. According to Gant, “the Court has based its rulings on free speech rights that belong to the press equally with others” (p.58). Journalists are not only not exempt from laws that protect ordinary citizens, but the Court has determined “also on many occasions where news organizations have asserted special rights of access to places and information that members of the press have no more rights to such access than [*130] other citizens” (p.58). The one Supreme Court case that moved toward special exemptions was BRANZBURG v. HAYES (1972), in which several members of a Kentucky newspaper, THE COURIER JOURNAL, requested immunization from grand jury subpoenas. Lewis Powell, in his deciding vote with the 5-4 majority, suggested that “‘newsmen’” are not entirely “‘without constitutional rights with respect to gathering of news or in safeguarding their sources’” (p.62).Yet the court, including Powell, actually rejected the journalists’ claims, and given the fractured nature of the written opinions, the case has held little precedential authority. Since BRANZBURG, the Supreme Court has declined other opportunities to move in the direction suggested by Powell.

Where much of the press’ protection comes from, then, is not legal opinions, but the credentialing process. The press is given special access, Gant argues, for several reasons: because of the mistaken belief that the Constitution supports them, because of more general sense that access is “beneficial to society,” because of explicit legal rules or other regulations that extend such privileges, or simply due to ad hoc decisions on the part of those in positions of authority. When new media practitioners have sought access to the same sets of entitlements, they have often met resistance from their “professional” peers. The online paper, WORLDNETDAILY¸ was refused press access to the House and Senate galleries for more than a year, until the Standing Committee for Correspondents changed its position and allowed admission. Institutional rules differ between government branches, and across state and local jurisdictions, but the practice of credentialing conventional media organizations is widespread.

In the end, Gant contends that it is not so much that members of the conventional press should be denied special legal protections under the First Amendment, but rather that, in a world where “we are all journalists” an expansion of the First Amendment to include more of us is in order. In fact, whether conventional journalists like it or not, the world of new media is expanding at a phenomenal rate, and its impact has been and will continue to be felt in multiple ways. Legal rules and credentialing practices must be reconceived to grapple with these emerging media practices. There are obviously physical limits to how many people can attend a White House press conference, but rules governing who those participants are need to be reconsidered. Gant concludes by stating that, “It is time to do away with the journalistic caste system we have created, which elevates the employees of established news organizations above citizens engaged in the practice of journalism. It is time to recognize the conception of press liberty as a right and a privilege that belongs to all of us, not just mainstream news organizations” (p.204).

While I found myself agreeing with many of Gant’s contentions, there are, of course, potential problems created by lowering the bar between a professional press corps and other news sources, digital and otherwise. Most obviously, line-drawing may be difficult, especially in terms of access. While there are many interesting, insightful, thoughtful, and provocative digital media sources worth giving access to spaces from [*131] which they are now excluded, there are also online bloggers and news writers who tread the boundaries, not just of legitimacy, but of rationality. There is also a danger that the protections now given to professional journalists could be retracted without a concomitant expansion of First Amendment protections to the rest of us. The imprisonment of journalists, and expanding the reach of libel law, does probably not bode well for First Amendment protections overall. To Gant’s credit, he addresses some of these counterarguments. Whether he has provided compelling responses can be left to the reader to judge.

I would recommend this book for social science courses at all levels dealing with First Amendment issues. It is as suitable for undergraduates as it is for graduate or law students. One of the great virtues of the book is its clear presentation of sophisticated and important legal and political arguments.

CASE REFERENCES:
BRANZBURG v. HAYES, 408 U.S. 665 (1972).

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© Copyright 2008 by the author, Thomas Shevory.

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BIOTECHNOLOGIES AND INTERNATIONAL HUMAN RIGHTS

by Francesco Francioni (ed). Oxford and Portland, Hart Publishing, 2007. 438pp. Hardback. $126.00/£60.00. ISBN: 9781841137032.

Reviewed by Upendra Baxi, Professor of Law, University of Warwick. Email: U.Baxi [at] warwick.ac.uk.

pp.119-127

Prefatory Observations
The relation between technosciences (such as biotechnologies, digitalization, nanotechnologies and neurobiology) and human rights is intimate as well as fatal. It is intimate because modern technologies, especially biotechnologies, are said to create, and often do, the material conditions for exercise and enjoyment of human rights. It is fatal because the technosciences put together at the same moment provide the vanishing ground of the idea of being and remaining human and having rights (Baxi 2008), indeed to a point where it becomes entirely sensible to speak of ‘posthuman’ rights (Baxi 2007).

It is amazing but true that so little has been written concerning so important a subject. Francesco Francioni and his colleagues, in this important and useful collection of essays, insightfully address the important interfaces between biotechnologies, human rights, and bioethics. For this reason alone, this volume makes a singular contribution towards renovation enabling transformation of the conventional ways of doing jurisprudence and political theory.

The pluralization of biotechnology is extremely pertinent because this directs attention to several ways in which commercial biotechnologies operate. Biotechnologies have varied applications in agriculture and agribusiness, pharmaceutical and biomedical industries, sustainable development technologies, feats of related genetic engineering especially exemplified in cloning technologies, and the uncertain promise signified by the various Human Genome projects. Further, biotechnologies remain nested, as it were, with the literally fantastic developments in digital technologies and now the new frontiers already constituted by nanotechnologies.

The accelerated rate of production of new knowledge and techniques presents at the threshold the intransigent problem of technoscientific illiteracy, for the communities of regulators and adjudicators as well as for most human rights theory and movement folks. Reductionist forms of understanding biotechnologies no doubt may help the latter to dramatize the inherent risks, but these also provide an equal scope for dramatization of the benefits by biotech entrepreneurs and their normative cohorts who thus stand to gain the most (in terms of profit and power.) How then should the diverse communities – human rights and social movement actors, regulators and lawmakers, lawyers and adjudicators, among others – proceed? Clearly, increases in TSIQ (technoscientific intelligent quotient) remain imperative. So remains the escalation in HRIQ (human rights [*120] intelligence quotient) among others – the technoscientific communities, biotech venture capitalists, corporate governors, and those who cultivate the field of business ethics. It needs saying that United Nations-NGO based coalition that has so notably pioneered HRE (human rights education) ought to address the cause of promotion of both TSLQ and HRIQ. Towards this task, BIOTECHNOLOGIES AND INTERNATIONAL HUMAN RIGHTS makes a significant contribution.

Biotechnologies significantly resituate conventional understandings of the term ‘human’ in human rights and what it may mean to speak of being and remaining human and having rights. These significantly affect some received cultural and civilizational understandings of human life, the individual human body as a unique site, seat, and source of identity, the relationships between self, others, environment, and sentient and non-sentient beings and entities in ‘nature.’ And further cultural, religious, and civilizational theorists offer different and difficult understandings concerning being, remaining human and having rights (e.g., differences between the Vatican and other religious outlooks on the use of foetal tissue research and the possibilities of human cloning and the Jewish, Islamic, Hindu, and Buddhist traditions so abundantly reveal). How various cultural and civilizational traditions mediate the reception of biotech research, application, use, and regulation remains an important question, not here explicitly addressed outside minor engagement with some distinctive Euro-american or transatlantic concerns.

Aside from all this, this volume invites us to rethink the discourse of human rights. Comparative social theory of human rights may no longer be regarded as sufficiently constituting the construction of human rights as deliberative objects of juristic and juridical doctrines, and as subjects of metaphysical/postmetaphysical enquiry and critique (deconstruction). The new technologies invite further contemplation in terms of the materiality, or the infrastructure of human rights. A new reflexivity about human rights (as we now know them) requires engaging the materiality – the new forces of production constituted by technoscientific estates and the varieties of technopolitics that these forces generate (Baxi 2007, at 211-220). This volume facilitates fashioning a new type of human rights reflexivity.

The emergence (and ‘consolidation’) of a new genre of human rights, named as ‘bio-rights’ (see, Susan Millns, Chapter 4) or perhaps more accurately, ‘biopolitical’ human rights, acutely poses the problem of treading ‘a fine line between support for innovation and scientific research and the maintenance of high ethical and moral standards’ (p.72.) How then may a new cartography of human (and also of human rights – or as Millns puts this ‘the new navigational map’ (p.73) – be narratively located in the context of the emerging pan-European value–formation, and yet at the same moment eventually going beyond?

Put another way, if human rights were to be constructed as social technologies – the languages of a shared ethical sentiment or the ‘cultural software,’ to evoke the phrase of J. M. Balkin (see [*121] Baxi 2008, at 21-22) – how may we juxtapose these with the technoscience hardware? And how may we find, or fashion, a common strategic alliance among the related but distinctively autonomous discursive regimes of international law, human rights, and bioethics? Do this, when all put together, via the conflated and conflicted regimes of ‘sustainable development’ and a singular focus on intellectual property rights regimes (hereafter IPRR), provide the only or the best way ahead?

Discussion of this policy dilemma, especially of Part IV, suggests that IPRR require close deliberative attention. I read this work further as suggesting that even ‘more’ is required; if so how do we define this ‘dangerous supplement’ (to evoke Jacques Derrida’s fecund phrase here)? Does this volume, in so fully illustrating the poverty of human rights theory (and perhaps also human rights movement), suggest new practices of transformative politics reconstructing the political, or the ways towards its just enrichment?

Intellectual Property Rights Regimes
IPRR constitute a triumphal, even when a hybrid, saga of the translation of the much-vaunted human right to freedom of speech and expression for the scientific communities in terms of their fundamental human right to pursue freedom of scientific research (whether ‘pure’ or ‘applied’). This translation at least signifies a constitutive condition for the very existence of these epistemic communities, for whom this basic human right and accompanying freedoms means at least their rights to: [a] pursue, without hindrance, free experimental research; [b] communicate the incremental results thus arising with peer-groups that validate or refute, these, as the case may be; [3] raise the stakes for resources in an increasingly competitive scramble (in both state and private sectors) for capital intensive ‘big science’ research. Put starkly, this order of human rights may thrive only under the auspices of global public dedication to some charismatic orders of the protection and promotion of the IPRR subsuming the ancient virtue of the pursuit of knowledge for its own sake (free scientific enquiry and research) always under the signature of the forever ordained practices of primitive global capital accumulation.

IPRR present at the same moment a register of troubled narratives. How far any fully informed human rights and/or biotethically informed regulatory endeavour proceed? Prohibition of technoscientific research, experimentation, and application as a form of state/law response remains a deeply flawed response. For one thing, outright criminalization of some ways of producing new knowledge seems ethically (in human rights terms) offensive; for another, any effort at full national enforcement of such a measure carries exorbitant social costs, including creating grey markets in research and application, and escalating corruption in law enforcement. Besides, national prohibition regimes forfeit the logics of contemporary economic globalization of the world. Biotechnologies constitute multi-billion dollar strategic industries; a prohibitory strategy may end up conferring competitive advantages to other technologically advanced nations.

The next best form that prohibition may take (contemplated from time to time in US policy as with the use of foetal [*122] tissue/stem cell research) means only the withdrawal of governmental, especially the heavily federal, research support from biohazardous research and application. However this scarcely addresses the flow of immense corporate funding fully outweighing such effete gesturing. Understandably, BIOTECHNOLOGIES AND INTERNATIONAL HUMAN RIGHTS does not seriously engage this strategy. Further, it remains common knowledge that self-regulatory corporate governance remains tethered to the ends of competitive aggrandisement in the global marketplace.

Most, if not all contributors to this volume pose, as well as endorse, other forms of international/transnational, even when ‘soft,’ regulation, informed by bioethics and human rights to address the promise and peril inherent to biotechnologies. Put another way, the volume accentuates the paradigmatic conflict of rights, wherein the logic of IPRR is not denied, yet a corresponding search for reasoned limits on the exercise of rights is presented as a global (bio)-ethical necessity. It thus focuses on the invention of moral limits on the logics of privatization/secretization (sanctified otherwise via the law of patents and trade secrets) inciting regulations which ‘balance’ huge corporate investment returns on initial investments with the postures of policy, law, and administration that aspire to the tasks of ‘public reason.’

John Rawls puts to heavy use the notion of ‘public reason’ (See especially, Rawls 1993; Rawls 1999). Rawls offers little scope for thinking through the relationships between technoscience, human rights, and the tasks of global justice. In turn, and in a large measure, the Francioni volume returns the compliment by evading the ways in which justice theory may still inform the programschrift of bioethics/human rights based ‘regulation’ of biotechnologies. The tasks of ‘public reason’ always entail the labours of construction of politics and of the political in ways which also preserve the integrity of human rights while imposing limits on their exercise. This remains a difficult endeavour, indeed, even when surely worthy of the fullest pursuit.

International standard-setting is the new public virtue or mantra that the Francioni collection celebrates, however differentially. Almost by definition, the painstakingly negotiated standards remain so heavily generalized as to provide poor guide to public choice and action. Their jurispotence remains heavily contested in regulatory and adjudicative performances, all too often resulting in privileging the biotech ‘haves’ over the ‘have-nots.’ The standards often build from differentially constituted logics, paralogics, and rhetorics not always recognizing validity in competing orders of contemporary human rights norms and bioethics based discursivity. If the later remain far from being lucid, ‘bioethics’ also furnishes a fluctuating, fluid, and inherently unstable habitus or episteme, providing no safe harbour. In part, this remains so because regulation remains beset by the fact that the object of regulation does not remain ordinarily accessible to the knowledge-base of the elected representatives somehow entrusted with the power and authority of making laws. Put provocatively, the expertise necessary to achieve the ends of regulation is captured by multinational [*123] capital, who owe accountability, transparency, and participation obligations neither to governments nor to the governed! Moreover, it seems to be the case that corporate funding of election campaigns in the transatlantic regions benefits increasingly, and even aggravatingly, by the captains of biotech, digital, and nanotech industries.

Fashioning Regulatory Frameworks and Standards
Does a human rights based international legal framework articulating these basic principles exist? Francioni suggests that it does (Chapter 1.) The reference here is to a complex series of instruments: in particular, the UDHG (the 1998 UN General Assembly adopted Universal Declaration on the Human Genome and Human Rights) and the UDBHR (the 2005 Universal Declaration on Bioethics and Human Rights) with associated instruments (statements/declarations). In a three-step analysis, Francioni straddles ‘the competing entitlements – property rights, sovereignty, and common heritage of humankind (thus proclaimed by UDHG); the ‘general interest of humanity;’ and the sine qua non articulated by human rights discourse’ for the legitimate exercise of the freedom of science and business in the development and application of modern biotechnology’ (p.7). This illuminating analysis leads to the conclusion (and the steps leading to it remain well worth close deliberative attention) that we should ‘develop a more rational approach,’ going beyond the ‘race to privatization of and propertization of genes, the human body, plans, new discoveries and everything else (p.31).
****
These provocative issues are further addressed by Pierre-Marie Dupuy (Chapter 2), who urges the need for developing, if I may so put this, a new future history of mentalities in which the ‘classical tools’ offered by international law regarding responsibility of state actors and agencies may be extended to reach ‘private entities interested in biotechnologies’ (p.42). The task stands well-named, but the difficulties inherent to this perhaps remain underestimated (see Baxi 2008, Ch.8).

The difficulties of this task stand amply illustrated, however, by the sterling contributions in Chapters 4-6. Susan Millns thus addresses the birthing of the European ‘new generation of bio-rights’ and suggests how this nascent agenda ought to be further extended’ (p.81); so does Abdulqawi A. Yusuf (Chapter 5) urging a ‘pan-European dialog, moving beyond the logics and rhetorics of harmonization’ (p.84).

However, the order of difficulties, intrinsic as well as instrumental, in moving towards this end is most fully presented by Helene Bouusard (Chapter 6.) She resolutely addresses the intransigent difficulties in any desired or attainable ‘convergence and reconciliation of ethical and legal principles’ (pp.113-126) and alerts us to the ‘possibility of a backlash (p.126) fully entailed in approaches towards such construction. This is an excellent contribution, indeed, inviting the fuller consideration and enriching analysis presented by Ernst-Ulrich Petersmann (Chapter 10), who further traverses the complexity and contradiction in a WTO-based regime of international economic law. His quest for ‘a more coherent and more legitimate framework for enhancing the legitimacy of international economic law’ (p.271), even when [*124] contestable (and in some respects already contested; see Alston 2002; Petersmann 2002a; Petersmann 2002b), still makes an important order of claims concerning reciprocal exchanges [trade-offs] between human rights law and international trade law. Petersmann insightfully suggests that just as economic laws and policies ought to be guided by human rights, we may not ignore the global social fact that most new technologies also ‘help citizens more effectively in benefiting technologies and from the worldwide division of labour through international trade law based on WTO law’(p.273).

This claim becomes further complicated by Thomas Cottier’s concluding observation (Chapter 11) that ‘human rights – except for the ban on biological weapons and nuclear warfare and weapons – do not offer a general foundation for the regulation of technology, because the ‘substantial’ human rights claims, as applied to genetic engineering, remain ambivalent’ in that their ‘application may be both beneficial and ambivalent’ (pp.312-313).

One would have thought precisely that this ‘ambivalence,’ far from representing a natural ‘order of things,’ stands multifariously and also nefariously fully constituted by the global markets for biotechnologies, and further by the fact that the precise pertinence of contemporary practices of human rights and social movements may lie in the deconstructive performances of this ambivalence! This surely is the message, at least as I read parts of this volume, which discuss the consolidating prowess of global biotech capital formation, at times contrasted with the dissipating powers of the so-called regime of substantial ‘human rights-claims, as applied to genetic engineering.’

This order of claims is justifiably disaggregated via the narratives of ‘agricultural biotechnology and the right to food’ (Chapter 7), the new ‘health, consumer rights claims’ pitted against the logic and paralogic of ‘economic freedom’ (the case study of GM regulation offered in Chapter 8), and the explorations of the human rights of indigenous peoples confronted with the genetic ‘gold rush’ (Chapter 9). Space-constraints forbid any further analyses of the ways in which human rights heterogeneity stands thus constituted, save saying two things. First, there exists no master narrative frame compelling obeisance to ‘substantial’ human rights claims; and secondly, the potential for talking about reciprocal exchanges between human rights values, principles, sentiments, norms and standards on the one hand, and the notion that technoscience will provide the infrastructures to enhance human rights futures must remain, on the other, open to diverse contention.

Standards Of and For Judgment
This invites, all over again, the intractable question of fashioning the standards for ethical judgment amidst the ineluctable forms of ‘ethical plurality,’ a set of issues specifically addressed by Roger Brownsword (Chapter 3.) He helps us to consider the so-called ‘bioethical triangle’ comprising three ‘ethical constituencies,’ the utilitarian, human rightists, and the ‘dignitarian alliance’ (p.49). Provocatively, Brownsword suggests that in an ‘ethical plurality human rights will not always prevail’ because human rights language, logic, and paralogic [*125] have to ‘compete with both utilitarian and dignitarian views’ (pp.53-54). Given this, he does not merely suggest that the calls for ‘human rights’ based forms of regulation regarding new technologies are unlikely to meet the intentions of their authors, but more crucially that they further privilege the bioethics that some consider to be a final solution to the orders of ‘interpretive deficit’ (pp.63-69).

The deeper point that Brownsword makes is this: of course, biotechnology and human genome type regulation may assume a ‘willingness to repair human rights deficit’ (p.68), and given the scarcity of any genuine (that is, enduring) effort in this direction, everything ‘must’ be done to foster ‘a willingness to repair’ this deficit. Yet, at the same moment, respect for plurality may also invite ‘regulatory failure (p.63). This, as Brownsword suggests, entails winning at least ‘three battles’—first, ‘in a larger plurality the battle for ethics;’ second, ‘within ethics’ must also be won ‘the battle for human rights;’ third, in a major way the third battle invites agonized attention to the tasks of the fashioning of a human rights ethical minimalism, that is the moral architecture of the ‘procedures for settling issues that might divide’ human rights communities, such as public and individual choices concerning ‘the priority of privacy and freedom of expression, the status of the human embryo and so on’ (pp.69-70).

In sum, we stand confronted not so much by ethical concerns as perhaps by meta-ethical considerations. To more fully address this, we must surely add to this troublesome quotient what remains at stake in some recent, and nascent, approaches to the problem of global justice. What obligations of the various strands of justice are owed to here-and-now communities injured by contemporary manifestations of the biopolitical prowess of commercial biotechnologies? How may their justice-obligations address similarly constituted future human communities? As has not been frequently noted, an ethic that addresses future generations remains tension-ridden. First, how may present generations conceive future ones (the epistemic problem)? Second, how may it define membership of that class (the descriptive realism problem)? In other words, who will decide whether human rights in the future will extend to new forms of artificial intelligence and new forms of artificial life? (Incidentally, this problem of future exclusion from membership of human species remains most acutely raised by population planning measures!) Third, the ethical problem: how may present generations prescribe/legislate the obligations owed to unknowable future ones? Fourth, ( and without being exhaustive, the loyalty problem), one could raise issues related to climate change (global warming), and the obligations of current populations to future ones. The postulates of bioethics and ‘sustainable development’ require traversing these and related critical thresholds.

Finally, by what normative/ethical standards may we attempt a critique of the logic of providing immunity to multinational corporate biotechnologies in light of contemporary human rights? In raising this range of concerns, this volume indeed makes a remarkable statement. [*126]

A Concluding Remark
I conclude by offering a series of supplementary observations. How, for example, may we ever aspire to receive in the context of the human right to food, the messages concerning the ‘manner in which’ IPRR lead ‘to a bypassing,’ via the ‘privatization of knowledge’ of ‘the needs of the poor’ (p.180)? One may pause to note that impoverishment stands already defined/delineated in language of the digital and biotech/nanotech global, and within-‘nation,’ divide. Material impoverishment exists as cyber-impoverishment, although anticipated future-world historic ‘developments’ are promised to bridge the gaps between cyber-improvised and cyber-rich (and therefore also biotech rich and poor) peoples and societies. To say the very least, this de-materialization of causes and conditions of material impoverishment invites further anguished reflection.

What indeed, without gainsaying at all the distinctiveness of the pan-European regulatory adventure, may thus constitute the ‘available policy space’ within the heavily mandated logic and language of the IPRR? Is it, indeed the case, despite a somewhat persuasive showing by Elisabetta Righini ( Chapter 8 outlining the regulatory controls over GMO food) that ‘in Europe [at least] the development and use of biotechnology always takes place consistently with a number of fundamental [human] rights and freedoms,’ thus ensuring ‘the primacy of the rule of law . . . over auto-regulated market’ (p.168)? In a related context, how may we address the conclusion of Federico Lenzerini (Chapter 9) that the IPRR must be reshaped ‘on the holistic vision of life’ of the indigenous peoples’ autonomy to decide ‘whether or not they wish to utilize their biological resources and/or related knowledges for commercial or industrial purposes and in the event that they wish to do so, to determine the terms for this commercial exploitation’ (p.226)?

This is surely not all, as Part V1 of this volume so fully suggests, notably in the solitary contribution by Lucia Vierucci, who calls for further re-visiting of the ‘the offensive uses of biotechnology,’ specifically noting ‘a few examples of the advantages that defensive military applications may bring to the modern armed forces’(p.363). How then may we understand the commercial/industrial biotechnologies, given their history of imperialistic and militarized origins and deployments, when considering the language of bioethics and human rights? Specifically in these intertwined contexts, how may we resituate the important presentation by DJ Galligan (Chapter 13) who suggests that ‘the effectiveness of legal norms is not an arcane art but a reasonably rational process [based somehow in terms of ‘taking forward the idea of civil society engagement in regulation’] that now needs to be applied to biotechnology (p.359, emphasis added)? Is it possible that this ‘reasonably rational’ can overcome the distinction offered by John Rawls, suggesting that the ‘rational’ (understood in terms of means-end rationality) may always contrast with the ‘reasonable’ in the sense which describes the ethical limits of the instrumental reason?

To thus so summarily invite attention to the embarrassment de riches of this volume is also to reiterate an important [*127] concern made once-upon-a-time (and the nostalgia is here fully intentionally summoned) famous by the ELEVENTH THESIS: adapting this thesis here, one may say that the task is not to explain the complex and contradictory terrain confronting bioethics and human rights, but rather how to transform them. It is, indeed, high praise but still much deserves saying that this remarkable volume assists both these enterprises.

REFERENCES:
Alston, Philip. 2002. “Resisting Merger and Acquisition of Human Rights by Trade Law.” 13 EUROPEAN JOURNAL OF INTERNATIONAL LAW 815-844.

Baxi, Upendra. 2008. THE FUTURE OF HUMAN RIGHTS. Delhi: Oxford University Press.

Baxi, Upendra. 2007. HUMAN RIGHTS IN A POSTHUMAN WORLD. Delhi: Oxford University Press.

Petersmann, Ernst-Ulrich. 2002a. “Taking Human Dignity, Poverty, and Empowerment of Individuals More Seriously: Rejoinder to Alston.” 13 EUROPEAN JOURNAL OF INTERNATIONAL LAW 845-51.

Petersmann, Ernst-Ulrich. 2002b. “Time for a United Nations ‘Global Compact’ for Integrating Human Right into the Law of Worldwide Organizations.” EUROPEAN JOURNAL OF INTERNATIONAL LAW 621-650.

Rawls, John. 1999. THE LAW OF PEOPLES. Cambridge, MA: Harvard University Press.

Rawls, John. 1993. POLITICAL LIBERALISM. New York: Columbia University Press.

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© Copyright 2008 by the author, Upendra Baxi.

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FREEDOM’S ORPHANS: CONTEMPORARY LIBERALISM AND THE FATE OF AMERICAN CHILDREN

by David L. Tubbs. Princeton and Oxford: Princeton University Press, 2007. 248pp. Cloth $60.00/£35.00. ISBN: 9780691122984. Paper 27.95/£16.95 ISBN: 9780691134703.

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

pp.116-118

David Tubbs has produced a well written, thoroughly documented volume critiquing the current social and legal focus in the United States on the individual rights of adults at the expense of appropriate consideration for the interests and needs of American children and families. Tubbs suggests that scholars, politicians, and jurists have given priority to constitutional rights, both those enumerated in the Bill of Rights, such as the First Amendment freedom of expression, and those derived by our jurists, such as the right to privacy, often without even mentioning the impact of this single-mindedness on our dependent, impressionable children. He argues that this focus has jeopardized the welfare of our children, making them “freedom’s orphans.”

Tubbs charges that the evolution of modern liberal philosophy since the end of World War II celebrates an expansion of individual rights without due consideration for moral principles. He describes this lack of concern as “moral reticence” (p.19). The result, Tubbs states, has been a deterioration in society’s responsibility for children. Tubbs’ clear descriptions of the theoretical issues and the court cases which reflect this lack of concern will be of interest to both those who agree with Tubbs and those who do not.

The focus on the rights of adults, according to Tubbs, has led to a lack of regard for social interests, especially those which influence children. A major concern is Supreme Court decisions which have invalidated state laws limiting access to contraception. He argues that these decisions and the judicial focus on the right to privacy ignore the effort that these state laws made to curtail sexual promiscuity and promote the traditional two-parent family. He further suggests that by broadening protection of material previously denounced as obscene, the courts, political theorists, and the public subject children to damaging material and ignore ethical ramifications.

Tubbs draws on Isaiah Berlin’s 1958 Oxford University essay outlining two models of freedom: positive and negative freedom. Positive freedom refers to the need to respond to self control or government limitations on behavior for the good of society. He refers to school attendance requirements for children, child labor laws and laws limiting the use of addictive drugs as examples of positive freedom. Negative freedom is the ability to act without consideration of the impact these actions may have on others. For Tubbs, this negative freedom is especially disturbing because it ignores the influence such unfettered freedom may have on [*117] children when parents focus on their own needs rather than those of their children. He demonstrates the increasing popularity of negative freedom among politicians and the judiciary in the United States today.

Tubbs contrasts modern liberalism, and the focus on individual rights, with “ancient liberalism” which considered the needs of society when defining liberty. He draws on the writings of Benjamin Constant, Alexis de Toqueville, and John Stuart Mill, among others, to demonstrate these differences. Tubbs is particularly critical of liberal feminism for its focus on the needs of female adults and its lack of consideration for the needs of children. He points out that the freedom of women to divorce, develop careers, and bear children as single parents leaves many children living without the social and economic support of a two-parent family. Tubbs describes the arguments of Susan Moller Okin and criticizes what he sees as her assumption that the needs of women correspond to the needs of children. Similarly, he critiques Okin’s enthusiasm for “eradicating gender” (p.73) without due consideration of the impact this effort has for children.

After reviewing those political philosophers with whom he disagrees, Tubbs goes on to critique the philosophy of many jurists whom he claims promote negative freedom and exhibit “moral reticence” or a lack of attention to the ramifications of their decisions. He supports state statutes which limit the use of contraception, such as the Connecticut’s law which was declared to be unconstitutional in GRISWOLD v. CONNECTICUT (1965). Such statutes, he states, had logical legal, moral and traditional bases and supported the states’ authority and responsibility “to promote public health, safety and morals” (p.102). According to Tubbs, such laws would have served to restrict sexual relationships outside of marriage and thus promote the welfare of children within the traditional two-parent family. Tubbs draws on and critiques the judicial opinions in the contraception cases and the unenumerated right to privacy upon which these cases were based.

Tubbs then discusses the explicit First Amendment rights to free expression of speech and press with an historical review of cases relating to obscenity and prayer. He is troubled by what he sees as inconsistent treatment of children who are described as fragile and impressionable, but are in some instances not differentiated from adults. He draws on both minority and majority opinions to clarify his issues.

In his final chapter, Tubbs takes on Ronald Dworkin’s writings in FREEDOM’S LAW regarding obscenity and the right to privacy. Tubbs discusses conflicts between his and Dworkin’s views on the concepts of constitutional originalism and Dworkin’s concept of “moral reading.” He critiques Dworkin for his focus on modern moral thought and his lack of consideration of the interests of children.

Many of Tubbs’ arguments will engender controversy. He draws on legal, economic and theoretical sources to back up his claims in his effort to make liberals more historically sensitive and more attentive to the problems he describes. Although many readers will disagree with his conclusions, they will finish the book with a broader [*118] understanding of both his views and the analyses of those he critiques.

Readers who are familiar with the legal and philosophical arguments raised by Tubbs will find this an easy read which at times appears repetitious. The reader with less experience in these areas will discover that the detail Tubbs includes readily enables them to understand his perspectives, whether or not they agree with his conclusions. Thus this volume can be recommended for a wide variety of academic and non-academic readers and provides the basis for stimulating debate inside and outside of the classroom.

REFERENCES:
Berlin, Isaiah. 1969. “Two Concepts of Liberty,” in FOUR ESSAYS ON LIBERTY. New York: Oxford University Press.

Dworkin, Ronald. 1996. FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION. Cambridge, Mass.: Harvard University Press.

Okin, Susan Moller. 1989. JUSTICE, GENDER, AND THE FAMILY. New York: Basic Books.

CASE REFERENCES:
GRISWOLD v. CONNECTICUT, 383 U.S. 479 (1965).

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© Copyright 2008 by the author, Rosalie R. Young.

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THE PERSONS CASE: THE ORIGINS AND LEGACY OF THE FIGHT FOR LEGAL PERSONHOOD

by Robert J. Sharpe and Patricia I. McMahon. Toronto: The University of Toronto Press, 2007. 272 pp. Cloth. $50.00/£32.00. ISBN: 9780802097507.

Reviewed by Lynne Chandler-Garcia, Department of Political Science, University of Maryland, College Park. Email: lgarcia [at] gvpt.umd.edu.

pp.113-115

THE PERSONS CASE, written by Robert Sharpe and Patricia McMahan, is an interesting and light-hearted account of the journey five women from Alberta took in order to attain the legal right to sit in Canada’s Senate. While the book is not substantive as a legal text, it does include many anecdotal stories about the lives of the plaintiffs, lawyers, and justices that add charm to the characters in the story. It is an easy-to-read story recounting many of the details of the lives of the “Famous Five” women, their struggle to make their voice heard in Canadian politics, and the men who helped or hindered them. The book goes to great lengths to tell the story of the women involved and their personal struggle. However, the account does not delve into the details of the legal arguments at stake such as the formalist tradition which mandated strict interpretation of Canada’s founding documents. Although mentioned, the book does not explain why Canada’s justices and scholars felt that legal formalism must prevail over civil rights. Finally, little mention is given to the social undercurrent of gender biases that pervaded political thought at the turn of the Twentieth Century and certainly affected the public officials involved in the case.

The crux of THE PERSONS CASE was Section 24 of the British North America Act (BNA Act) which allowed the Governor General to appoint “qualified Persons” to the Senate. The question at issue was whether “Persons” included women. When the BNA Act was ratified in 1867, women did not possess the right to vote or hold office. Thus, a strict originalist interpretation of the BNA Act dictated that the original intent of the document was to exclude women from the meaning of “Persons” as it applied to the Senate, and thus women could not be appointed. In 1927, five women from Alberta petitioned the government to ask the Supreme Court of Canada to examine the meaning of the BNA Act to determine if women could be included in its interpretation. The Supreme Court, relying on legal formalism, denied women access to the Senate. The women then appealed their case to the Judicial Committee of the Privy Council of Great Britain. The Privy Council took an expansionist view of the BNA Act arguing that the law was a “living tree” able to adjust to the needs of the present time. Lord Chancellor Sankey ruled that women were indeed included in the meaning of “persons” and could be appointed to the Senate.

The first half of the book details the lives of the “Famous Five” women from Alberta who initiated the case. Motivated by women’s issues, temperance, and suffrage, these five [*114] women devoted their public lives to furthering women’s rights while maintaining their domestic roles as wives and mothers. The story focuses on Emily Murphy who pioneered the PERSONS CASE through her strong will and determination. Murphy attained considerable legal status as a woman at the turn of the Twentieth Century by becoming the British Empire’s first police magistrate. Always wanting more for herself and women in general, Murphy set her sights on an appointment to Canada’s upper chamber, the Senate. Although women were allowed to vote in most provinces (Quebec excluded) and the national elections, and could serve in the House of Commons, until 1929, the interpretation of “qualified Persons” in the BNA Act precluded women from serving in the Senate. The Senate presided over most divorce matters, and therefore, it made sense that women should be represented in those proceedings. Further, as a matter of principle, it was improper to exclude women from this important political body. However, as Sharpe and McMahon hint, Murphy seemed to desire a seat in the Senate as much from personal ambition as principle. In an age of Populism, the Senate was increasingly seen as an antiquated institution not worthy of reform. If Murphy truly wished to foster change, she would probably do better to seek a seat in the House of Commons. The reader is left to wonder what drove Murphy to seek nomination to the Senate so relentlessly. Was Murphy primarily motivated by personal ambition, the suffrage movement, or both?

Upon referral to the Supreme Court of Canada, lawyers for the government argued that the BNA Act should be interpreted with the original intent of the Imperial Parliament who created the document in 1867. This argument was well received by Chief Justice Frank Anglin who was an adherent of legal formalism and believed in strict adherence to the original intent of the framers. Justice Anglin was unreceptive to legal interpretation, and thus his opinion found that, because the framers in 1867 did not intend to confer Senate appointments to women, “qualified persons” could not be interpreted to include women.

Unhappy with this decision, the plaintiffs appealed to the Privy Council. Lord Chancellor John Sankey who oversaw the Privy Council and wrote the opinion for the case, did not adhere to a strict policy of originalism. Instead, he believed that courts should interpret laws in their modern social setting rather than the historical context in which they were written. He called the BNA Act a “living tree” that was capable of growth and expansion to meet Canada’s modern needs. With this famous phrase, Lord Sankey established a new doctrine of constitutional jurisprudence that was not acted upon until the 1970s. From the view of legal jurisprudence, this paradigm shift is the most interesting part of THE PERSONS CASE. Yet, it receives relatively short shrift in this account. This book would benefit from a more thorough and rigorous study of this paradigm shift.

Noticeably absent from this account is a discussion of the underlying political undercurrents of gender bias that provide the context in which this case was heard. Canada had granted women the right to vote just ten years before the case reached the Supreme Court, and Quebec [*115] still denied women’s suffrage. The suffrage movement was still in full swing, causing citizens to reexamine their biases against women in politics. Surely this political debate influenced the members of government and the justices who addressed the case issues. For instance, Sharpe and McMahon note that Supreme Court Justice Duff generally viewed the constitution in “bold terms” and once referred to the constitution as a “living organism.” Yet, when writing his concurring opinion, Justice Duff reverted to the original intent of the framers in 1867 to deny women legal status as “persons.” Was Justice Duff truly motivated by a need to seek original intent or were there underlying biases that motivated his decision that the authors neglected to explore? Was original intent merely a screen behind which justices and public officials could hide their gender biases? The authors mention some of the newspaper reports that printed stories with a sexist bias but make no mention of the potential biases of the policymakers involved in the case. Without placing this case within the political and social context of the gender-based biases that existed at this time, Sharpe and McMahon do not truly tell the entire story of THE PERSONS CASE.

Overall, this book is an interesting and lively account of the “Famous Five” women who fought to gain personhood for women. However, as a history of THE PERSONS CASE, the authors do not discuss the political context of the case, nor do they adequately discuss the ramifications of this important decision for constitutional theory. As a historical narrative, it tells a significant story in Canada’s struggle to provide equal rights to all persons.

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© Copyright 2008 by the author, Lynne Chandler-Garcia.

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MEDICAL ETHICS AND MEDICAL LAW: A SYMBIOTIC RELATIONSHIP

by José Miola. Oxford: Hart Publishing, 2007. 248pp. Paper. £25.00/$52.00. ISBN: 9781841135083.

Reviewed by Robert Dingwall, Institute for Science and Society, University of Nottingham, UK. Email: robert.dingwall [at] nottingham.ac.uk.

pp.109-112

This book, by José Miola is a useful survey of current thinking in the field of law and medical ethics in the UK – or, more precisely, in England and Wales, since the Scottish medical and legal systems are increasingly diverging to a degree that makes any generalization unwise. However, it reminds me of the proverbial curate’s egg. For US readers unfamiliar with the idiom, it refers to a famous English cartoon from the nineteenth century. A young curate (think assistant professor without tenure) is having breakfast with his bishop (think chair of the tenure committee). However, his boiled egg is rotten. When the bishop asks what the curate thinks of this stinking egg, the young man replies: “Parts of it are quite excellent.” MEDICAL ETHICS AND MEDICAL LAW is certainly not a stinker, and it would be unfair to suggest that it was. Anyone reading it will learn something useful about recent cases and the way that people think within the paradigm from which the author is writing. However, they will also see abundant evidence of the narrowness and complacency of this paradigm. It would not be fair to single out an early career scholar for sticking within this – think of the curate’s dilemma in responding to the bishop who controls his career track – but this would not be a responsible review if it did not at least note some of these generic problems.

The book begins from the iconic event of the Bristol Royal Infirmary Inquiry, which reported in 2001. This inquiry was chaired by Professor Ian Kennedy, a prominent academic medical lawyer, and investigated a series of deaths during pediatric cardiac surgery at the Bristol Royal Infirmary between 1984 and 1995. The report is a very substantial document, but Miola summarizes its conclusions as demonstrating that cultural flaws in medicine, combined with excessive professional autonomy and regulatory failure, had produced this outcome. The remedy was legal intervention to compel more ethical practice. This is certainly a point of view. However, there are some problems with this account. First, Professor Kennedy had been advocating this analysis since the 1970s, exemplified by his Reith Lectures for BBC Radio in 1980, published as UNMASKING MEDICINE in 1981. In a review essay, Eliot Freidson (1982) described the overall tone as ‘one of doctor-bashing, science-baiting and machine-smashing’ and, in subsequent conversations with this reviewer, suggested that writing this essay had been quite influential in turning his own attention towards a more nuanced account of medicine and the position of doctors, having seen where his own (Freidson 1970) radical critique of professional autonomy might lead. Secondly, as Weick and Sutcliffe (2003) [*110] and others have pointed out, the conclusions of the Inquiry are rather weakly connected to the evidence, at least as it would be understood by major figures in the field of organizational studies. There is, then, at least an arguable case that those who appointed Kennedy to chair the inquiry had a particular outcome firmly in mind and that the process was a vehicle for the pursuit of their interests. A more reflexive account might have thought it worth asking whether this process was quite so self-evidently disinterested. Could it actually be the case that both Professor Kennedy and the present author are engaged in the same project, which we might call the ‘legalization of society’ in competition with the ‘medicalization of society’ and that it might be reasonable for those of us who are neither lawyers nor physicians to ask why one might be preferable to the other?

This notion of a legalization project is nicely illustrated by the historical chapter. There used to be a time when all books written by professionals about the history of their own profession began with a chapter on their profession in the classical world, regardless of the dangers of anachronism or Whig history. Social scientists and historians have come to regard these as more indicative of modes of legitimation rather than as scholarly contributions. In a certain time and place, an origin myth tracing the profession to Ancient Greece or Rome authorized the profession’s place within a social and cultural elite. It is interesting that this trope is still thought to have power in English academic law, although it is certainly waning in medicine, where there is rather more awareness of the scholarship that has questioned the existence of a historical Hippocrates, as opposed to a rather loosely bound school of natural philosophers, and about the idea of anything that is recognizable as the prototype of a medical profession in a modern sense. After Hippocrates and Plato, the book skips almost two thousand years as if there is nothing worthwhile to be said about medical ethics in the meantime. Eighteenth century medicine, for example, is discussed as if it were governed only by the principles of Adam Smith’s marketplace. In WEALTH OF NATIONS, Smith, himself, actually discusses the behavior of physicians in some detail and why it is not appropriate to apply simple market principles to them since they must behave in ways that inspire trust in their patients rather than maximizing their short-run economic interests. Nor is there any reference to the extensive debates about medical ethics in late 19th century Germany or early 20th century America as the project of scientific medicine began to take hold and recognizably modern forms of professional organization were established.

This lack of historical sensibility is also evident in the way in which the Nuremburg Medical Trial, and the Code presented in the judgment, is treated as a self-evident foundation for legal and bioethical intervention in medicine. This has not yet been analyzed in great detail, but it might be observed that the Manchester GUARDIAN, then as now, England’s leading liberal newspaper, did not actually report the trial at all. Their first reference is to a delegation from the BMA – the UK equivalent of the AMA - going off to draft what became the Declaration of Geneva, where the Nazi [*111] doctors’ behavior was presented as something for the profession itself to sort out. When the GMC, the licensing board for UK doctors, was asked in 1952 to consider requiring UK medical graduates to affirm their adherence to the principles of that Declaration, it took the view that this was unnecessary because of the moral socialization they would have experienced during their education. The next references come in the 1960s, when they are associated with other developments in response to concerns about research ethics rather than clinical ethics. The Nuremberg Code, then, may serve more as a powerful legitimating symbol for the pursuit of certain professionalizing or jurisdiction-expanding interests than as a historical document. It should, perhaps, also be observed that this story about Nuremberg ignores the extent to which 1930s Germany had the most sophisticated regulatory regime for research governance in any developed country, built up over a period of nearly fifty years. What the Trial may really be documenting is not the need for regulation but the failure of an approach based mainly in regulation.

Now some of this work is not yet in public print so it is not entirely fair to expect Miola to be aware of all the details. However, it is reasonable to ask that, before asserting the centrality of the Nuremberg Medical Trial to subsequent developments in medical ethics, the author might ask what evidence there is to justify this claim, and display a modicum of skepticism if this cannot be located.

Similar unexamined assumptions litter the account. How far does medicine actually have the degree of professional and cultural dominance that is asserted? This has been energetically debated by medical sociologists since Strong’s (1979) attack on the medicalization thesis. Research on medication use, for example, reveals quite staggering levels of non-adherence to prescribed regimes. Officially sanctioned medicine in the US and UK co-exists with a wide range of rival healing systems and their practitioners. Is it correct to assume that where there is no law, there is no restraint on professional behavior? Have the informal sanctions of traditional societies really been so totally extinguished, whether they are operated by patients or by peers? Is the importance of trust in the marketplace for healing any less than it was when Adam Smith wrote about it? Is autonomy such a cardinal virtue in health care when so much of it is funded by collective institutions, whether tax or insurance based? Do those paying into the systems not have some right to expect that their money will be spent in ways that are effective and efficient rather than simply reflecting the whims of those drawing support? Are there no collective interests in public health that may justify constraining individual choices?

Ultimately, this book can also be read as a text in the professional project of medical law and ethics and its desire to expand its jurisdiction at the expense of medicine. In another classic essay, Strong (1984) commented on the way in which the wealth of contemporary medicine attracted other disciplines and professions, like bees to a honeypot, in the hope of gaining a share of these resources. Law and medicine are rivals in the business of social control. The German poet Goethe, writing in 1787, [*112] feared that the world would become one large hospital with each the humane nurse of the other. I sometimes think that we should equally fear a world that is one huge courthouse, where each tenaciously pursues the rights of the other. The art of the political scientist may well be to manage the tension between these two pathologies, understanding the loss of human dignity in Goethe’s world of unchecked compassion and the loss of human sensibility in Miola’s world of unchecked rights.

Read this book as a useful contemporary guide to thinking in English medical law and ethics. Reflect on it as a vehicle for jurisdictional claims and ask yourself to what degree these really would usher in a better world.

REFERENCES:
Freidson, Eliot. 1970. PROFESSION OF MEDICINE. New York: Dodd, Mead.

Freidson, Eliot. 1982. “Review Essay: Kennedy’s Masked Future.” 4 SOCIOLOGY OF HEALTH & ILLNESS 95-97.

Kennedy, Ian. 1981. UNMASKING MEDICINE. London: Allen and Unwin.

Strong, Philip M. 1979. “Sociological Imperialism and the Profession of Medicine: A Critical Examination of the Thesis of Medical Imperialism.” 13A SOCIAL SCIENCE AND MEDICINE 199-215.

Strong, Philip M. 1984. “Viewpoint: The Academic Encirclement of Medicine.” 6 SOCIOLOGY OF HEALTH & ILLNESS 339-358.

Weick, Karl E., and Kathleen M. Sutcliffe. 2003. “Hospitals as Cultures of Entrapment: A Re-Analysis of the Bristol Royal Infirmary.” 45 CALIFORNIA MANAGEMENT REVIEW 73-84.




Right Reverend Host: “I’m afraid you’ve got a bad egg, Mr. Jones!”
The Curate: “Oh no, my Lord, I assure you ! Parts of it are excellent!”

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© Copyright 2008 by the author, Robert Dingwall.

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OPENING THE FLOODGATES: WHY AMERICA NEEDS TO RETHINK ITS BORDERS AND IMMIGRATION LAWS

by Kevin R. Johnson. New York: New York University Press, 2007. 304pp. Cloth $35.00. ISBN: 9780814742860.

Reviewed by Doris Marie Provine, Professor, School of Justice & Social Inquiry, Arizona State University. Email: marie.provine [at] asu.edu.

pp.106-108

No book could be more timely than Kevin Johnson’s OPENING THE FLOODGATES: WHY AMERICA NEEDS TO RETHINK ITS BORDERS AND IMMIGRATION LAWS. An unprecedented movement is occurring in states and municipalities across the nation to control the flow of immigrants without authorization, and the issue has become a primary focus of the presidential campaign. Johnson’s focus, however, is not on the current imbroglio, but on the reasons why it exists. He makes a convincing argument for a policy of open borders, if not with the world, then within North America. Open borders, he asserts, is the only sensible policy in this era of globalization.

The argument for open borders can be made on utilitarian and moral grounds. Johnson addresses both, but stresses the reasons why it makes good economic sense to open the borders to people who seek work in the United States. He starts from the position that the inflow of foreign labor is not only needed – it is unstoppable. So the United States should drop the pretense of immigration control, with its harsh quotas, inadequate walls and stop points, long waiting lines, and detailed inquiries into the background of applicants in favor of a straightforward, easily administered visa program that presumes eligibility to enter. Entrants would immediately become legal permanent residents. There would be no temporary workers or other conditional or short-term admissions. The only grounds for exclusion would be danger to American security, which would exclude those with dangerous communicable diseases, terrorists, and criminals likely to re-offend. The burden of proof would be on the government to exclude, and there would be a right to appeal.

Would such a policy “open the floodgates” to an unmanageable flow of immigrants? Johnson acknowledges that this is a common concern, but he dismisses it with examples of people from poverty-stricken areas who could migrate freely under current law (e.g., Puerto Rico, Mississippi), but do not. He cites the European Union as a relevant case in point. Despite some initial fears, there has been no dramatic inflow of Bulgarians or Romanians into Western Europe, he asserts.

What about the impact of open borders on American labor? The current system, Johnson points out, is worse than a properly managed system of open borders. Under the current policy, which does not legally acknowledge the presence of workers who have settled without authorization, the United States has developed a large secondary labor market. More than one-half of the growth of the labor force in the past [*107] decade is made up of these workers. They are vulnerable to exploitation from employers and from criminals who prey upon them. They pay taxes, including, in many cases, income tax, but get virtually nothing in return. While this is, in a certain sense, a good deal for American citizens, it is unfair and has many negative consequences for everyone.

A better solution, Johnson argues convincingly, is enhanced workplace standards for all workers, with transfer payments to workers displaced by immigrants. The money for such a program would come from the employers who benefit from immigrant labor. Johnson is not alone in seeing the value of recognizing the presence of unauthorized workers. The AFL- CIO has reversed its earlier opposition to unauthorized workers and now seeks to include all workers in its membership.

The current failed policy, Johnson asserts, resembles the Prohibition era, when government attempted to stop the purchase of alcoholic beverages. Immigration controls are just as unworkable and just as out of step with current realities, Johnson argues. The world is shrinking and people everywhere are more aware of opportunities elsewhere. International law is increasingly protecting persons who migrate. The US is out of step with the realities of immigration in the modern world, Johnson asserts. The current system of exclusion will eventually be dismantled in his view: “Some day, borders as we know them today will be as antiquated as covered wagons, the use of leeches, and mimeograph machines.”

Moral arguments for open borders arise partly out of the nation’s past schizophrenia about immigration and its racism in developing and applying standards of admission. America congratulates itself for welcoming the world’s “huddled masses,” but has, in reality been quite consistently racist and classist in its policies, at least since 1875 when federal policy first took shape. It has also tolerated and sometimes encouraged unauthorized immigration, and then punished those who have come. Johnson briefly and tellingly reviews this history and current policy for racial and class bias, noting the lack of responsiveness of American courts to these issues. This unpacking of past and current policy as it has been implemented is an important strength of this provocative book.

The choices the United States now faces, Johnson argues, are “painfully simple.” Regulated, but open, borders is the right policy, both because it rejects the racist past, and because it makes good economic sense. If the US does not accept immigrants, Johnson points out, the jobs will increasingly go abroad. Losing those low-paying jobs that many new immigrants currently occupy would have deleterious secondary effects that would harm communities. Johnson might have used meatpacking as an example – the industry was in decline until it began employing immigrant workers.

Johnson acknowledges that, however sensible, an open-borders policy is not likely to be adopted soon. The 2001 attack on the World Trade Center ended promising movements toward a more generous policy concerning Mexican immigration. Arguably, the prospects [*108] for opening borders have grown worse since this book was published. Johnson assumes, for example, that policy makers could build upon the success of NAFTA and create open borders at this level as a second-best option. NAFTA, however, is under attack, with prospects for expansion quite bleak at this time.

At times, this book makes for frustrating reading. Perhaps because it is organized like a legal brief for open borders, the text is repetitive and occasionally didactic. Johnson exhorts the reader to see the right to migrate as a basic civil right without seriously exploring the possible consequences. He is too quick to dismiss the prospect of significantly increased migration from the poorest nations under an open-borders policy. While he does, repeatedly, acknowledge the importance of governmental efforts to integrate immigrants and criticize the US for not doing more to create English classes and other assimilative programs, he never reaches the problem of costs or planning. At times he appears curiously out of touch with how poor the current social support system is in the United States. He expresses dismay, for example, that unauthorized workers do not have free health care, without noting that many American citizens also lack such coverage.

More damaging to his arguments are occasional exaggerations. He describes human trafficking as a major business in the United States, though the number of cases he cites is small. He conflates trafficking, which involves an element of deceit, with human smuggling. He is overly harsh in his criticism of American refugee policy as racist and stingy.

The argument for open borders is nevertheless appealing and interesting, raising, for the sympathetic reader the question of how one might begin to persuade others to welcome immigrants. Johnson’s strategy of citing and then countering arguments against open borders is powerful and helpful. He made a good strategic choice in focusing on the rationality of opening borders and not dwelling on the psychological reasons, including racism and xenophobia, that make so many Americans uneasy about immigration. But he might have talked more about the political obstacles that stand in the way of open borders and the costs of such a policy. What is it about this system of government that allows such flagrantly unworkable policies to be set in place, and defended? The ill-planned, unmanageable, and racist War on Drugs comes to mind as a parallel case.

But ultimately, one comes away from this book with the sense that the question Johnson raises is bigger, and tougher, than the answer that he provides. The United States, after all, is not the only nation resistant to the idea of opening its borders. Immigration is a volatile issue because it challenges national governments to defer to market forces. Advocacy for open borders makes for a curious result: Johnson’s most ardent supporters are likely to be corporations and businesses looking for easier access to cheap labor. This book encourages a broader discussion than is currently circulating in American politics, one that looks to the foundations of immigration policy and imagines a major overhaul.

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© Copyright 2008 by the author, Doris Marie Provine.

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THE AMERICAN STATE CONSTITUTIONAL TRADITION

by John J. Dinan. Lawrence, KS: University Press of Kansas, 2006. 436pp. Cloth. $39.95. ISBN: 9780700614356.

Reviewed by James N. G. Cauthen, Department of Government, John Jay College, The City University of New York. Email: jcauthen [at] jjay.cuny.edu.

pp.103-105

Between 1776 and 2005, there were 223 constitutional conventions held in the American states. While there have been numerous studies of the debates surrounding the federal constitution, much less scholarship has been devoted to the debates in these state conventions, and most of this has focused only on individual conventions or particular states or issues. In part, the lack of comprehensive analysis may be the result of the belief by some that these debates add little to our understanding of the American constitutional tradition, because, so the argument goes, they are more akin to legislative clashes than reasoned discussions of governing principles and institutions. Also, it may be a result of the sheer volume of material that scholars must wade through. For example, the record of the 1837-1838 Pennsylvania convention comprises fourteen volumes.

In THE AMERICAN STATE CONSTITUTIONAL TRADITION, political scientist John J. Dinan goes beyond the limited scope of these existing studies and undertakes exhaustive analysis of the 114 state debates for which records exist. He does so in an attempt to show that many state constitutional conventions have, in fact, debated the central questions of self-governance and institutional structure addressed in the federal convention. These debates, according to Dinan, because of their number and scope, provide a better expression of American constitutional tradition than is found in studies focused solely on the federal convention. The depth of Dinan’s work is impressive, which is evidenced by voluminous and detailed notes at the end of the text. Those with an interest in state constitutionalism will marvel at the treasures to be mined from these pages alone. Additionally, these efforts allow him to give real life to his descriptions of debate positions by artfully weaving quotations throughout the book.

As Dinan sets out at the start of the book, the reason for there being so many state conventions is that state constitutions generally provide significant flexibility in the amendment and revision process, including easier mechanisms to call conventions. Most states permit the legislature to call conventions, many by only a majority vote. The call generally must be approved by the voters. In addition, about one-quarter of the states periodically put to the voters the question whether a convention should be convened. When one adds to this the increased flexibility of amending the state constitution in other ways, it is evident that state constitution makers, in contrast to the drafters of the federal constitution, have desired more frequent consideration of constitutional questions [*104] to account for generational change and progress.

The number of conventions has not been evenly distributed over time. After the initial wave of constitution making in the late eighteenth century to draft and revise inaugural constitutions, there were increased levels of activity in the Jacksonian era, before and after the Civil War, and during the Progressive era. Also, there were more conventions held after the US Supreme Court’s decision in BAKER v. CARR (1962), called in part to focus on legislative malapportionment.

State constitutional change occurred frequently in late twentieth century and the early twenty-first century, but much of this was through legislative amendment (a process all but one state had adopted by the end of the nineteenth century) and constitutional initiative (first adopted by Oregon in 1902 and by a total of eighteen states by the end of the twentieth century). However, notwithstanding the liberalization of amendment mechanisms, conventions continued to provide for constitutional change, with forty-eight occurring after 1950.

After a discussion of this amendment and revision process, the remaining chapters of the book address debates in the state conventions over representation, separation of powers, bicameralism, positive rights, and the government’s role in forming citizen character. The structure of each chapter is similar. Dinan opens with a brief discussion of the constitutional principle under the federal constitution, then addresses the substance of debates in the state conventions on particular questions arising under this principle. For example, in the chapter on representation, he addresses the debates over the adoption of the direct democratic devices of popular initiative and referendum, supported by those seeking to guard against the influence of special interests and opposed by those having difficulty reconciling these devices with republican government. These opponents argued that citizens would be too ill informed to vote directly on legislation, there would be fewer opportunities for deliberation and compromise, and minority rights could be compromised.

On separation of powers, Dinan focuses on debates in the state conventions over executive veto, including the line item veto, in addition to discussion beginning in the early twentieth century over restricting judicial review, in part fueled by court decisions at both the state and federal levels overturning progressive legislation. His chapter on convention debates over bicameralism is one of the more interesting and insightful. Although state delegates considered constitutional structures for a different sovereign, Dinan shows how federal constitutional design, history and tradition cast a significant shadow over the state proceedings. What is evident from these deliberations is that the defense of a bicameral system evolved and varied depending on period and context in which the convention was held. Whereas early justification for a second chamber was based on property ownership, when property distinctions were eliminated beginning in many nineteenth century conventions, the justification eroded. Support then centered on the need to represent political subdivisions in one chamber [*105] and population in another. However, after the Supreme Court’s decisions in BAKER v. CARR (1962) and REYNOLDS v. SIMS (1964), states could no longer apportion based on this factor, so support for bicameralism in subsequent conventions focused on the benefit of insuring full deliberation before enacting legislation.

Particularly fascinating is Dinan’s discussion in a later chapter of the debates over the inclusion in state constitutions of positive rights such as workers’ rights, social and economic rights and environmental rights. Dinan portrays these through the convention debates not as a departure from traditional constitutional rights, but extensions that have evolved in our constitutional tradition.

In the introduction to the book, Dinan notes that beyond showing that many of these state constitutional debates addressed the same fundamental questions as those in the federal convention, another of his purposes is to explain why convention delegates resolved these questions the way they did. His work is less enlightening on this front. After describing both sides of a debate on a topic, Dinan generally closes the section with a tally of states adopting the constitutional change. Unfortunately, there oftentimes is little explanation why particular state conventions (and ultimately voters) accepted or rejected the arguments presented on an issue. For example, why did some states adopting the line item veto extend it beyond appropriations bills? What explains the variation in adopting legislative referendum and initiative? Why did some states adopt collective bargaining protections for workers and others include right-to-work provisions?

These are questions often left unanswered, but with the wealth of information contained in this work, Dinan gives future researchers a good foundation to pursue these inquiries. But his work is much more than a resource book for state constitutional scholars, for he has created a rich piece of scholarship that contributes significantly to our understanding of American constitutional history. As he set out to do, he shows that many of these state constitutional conventions served as venues for repeated reconsideration of fundamental questions surrounding governing principles, making them an important part of our constitutional tradition.

REFERENCES:
BAKER v. CARR, 369 U.S. 186 (1962).

REYNOLDS v. SIMS, 377 U.S. 533 (1964).

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© Copyright 2008 by the author, James N. G. Cauthen.

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BUSH, THE DETAINEES, AND THE CONSTITUTION: THE BATTLE OVER PRESIDENTIAL POWER IN THE WAR ON TERROR

by Howard Ball. Lawrence: University Press of Kansas, 2007. 320pp. Cloth. $34.95. ISBN: 9780700615292.

Reviewed by Graham G. Dodds, Department of Political Science, Concordia University. g.dodds[at]concordia.ca.

pp.99-102

“It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.” – Sandra Day O’Connor, 2006 (p.1).

Whatever its other merits may be, George W. Bush’s tenure as president has been a great boon for scholars of presidential power, constitutionalism, and public law. Long forgotten court cases have been rediscovered, and dusty tomes on presidential war powers now have new currency, as fundamental constitutional arrangements and legal protections that had once seemed secure are called into question, from the writ of habeas corpus and the Geneva Conventions to checks and balances and separation of powers. But of course the increased relevance of and demand for the work of many legal scholars has come at an enormous cost. For Howard Ball (prolific author and professor of law at Vermont Law School and University Scholar and professor emeritus of political science at the University of Vermont), that cost may be nothing less than the rule of law, the US constitutional order, and even representative government itself.

In BUSH, THE DETAINEES, AND THE CONSTITUTION, Ball examines the Bush Administration’s treatment of detainees in “the war on terror,” as it has been promulgated, challenged, tested, and grudgingly modified from shortly after September 11, 2001 through 2007. Ball’s specific focus is on the “enemy combatants” in orange jumpsuits who are imprisoned in Guantanamo Bay, Cuba, America’s “gulag” (pp.61, 72). But Ball’s book is more than just a narrow legal analysis of the detainment of suspected terrorists. Indeed, the book’s subtitle – “The Battle over Presidential Power in the War on Terror” – suggests its broader thrust. This is a book about executive excess and how the constitutional system can (or cannot) respond to it.

After a brief Introduction, Ball provides an overview of the topic and his general argument in Chapter One. According to Ball, prior to the war on terror, the US had generally adhered to domestic and international laws “regarding the classification, status determination, treatment, and disposition of captured enemy combatants” (p.45). That changed when Bush and senior Administration officials decided to imprison suspected terrorists and to deny them the standard protections. Ball’s book essentially examines how this came to be and what it means. He sees the Bush Administration’s treatment of detainees, and its disinclination to submit to the other branches and to change course, as amounting to what Clinton [*100] Rossiter called “constitutional dictatorship” (p.34)

In Chapter Two, Ball traces the use of the term “enemy combatant” from World War II-era obiter dicta to Bush’s decision to treat all Al Queda and Taliban suspects as unlawful enemy combatants and to subject them to trial by military commissions. Chapter Three describes the treatment of people caught and detained according to this policy and the related controversies about the governmental use of torture.

In Chapter Four, Ball recounts the belated entry into this matter by another branch of government, the judiciary. He describes the appeals to federal courts by detained suspected enemy combatants and discusses three crucial cases that the Supreme Court decided in 2004: RASUL & ODAH, HAMDI, and PADILLA. There were ten opinions in the three cases, but their cumulative impact was to curtail Bush’s actions in the war on terror, as the justices said that “foreign aliens and American citizens held as enemy combatants could petition federal courts for habeas grants to challenge their detentions” (p.125). This marked a significant check on the president, but it constituted only “Round One” (p.87) in what would be a protracted inter-branch struggle, and Ball contends that “the justices knew that they were merely scratching the surface of the controversial legal issues” (p.127).

In Chapter Five, Ball describes the impact of the 2004 decisions on Bush’s detainee policy. According to Ball, the Administration sought “to outflank and, at best, minimally comply” with the Court (p.124). Thus, the Department of Defense created administrative review boards that limited the ability of detainees to contest their detention via habeas appeals, the Department of Justice cut a deal with Hamdi whereby he was freed after agreeing to renounce his US citizenship and be deported to Saudi Arabia, and Bush ordered the transfer of Padilla from Guantanamo to the control of the Attorney General in order to face a new federal criminal indictment.

But this resistance was countered by the Supreme Court in June, 2006, when it issued a dramatic 5-3 ruling against the Bush Administration in HAMDAN. There were six opinions in Hamdan, but the Court essentially rejected Donald Rumsfeld’s plan to try Osama bin Laden’s chauffeur and bodyguard before a special military commission rather than a traditional court-martial. Moreover, it said that the Geneva Conventions applied. According to Ball, Hamdan was an ideological rebuke that called attention to the necessity of checks and balances and separation of powers. It left the president, vice-president, and other top Administration officials “stunned and angered” (p.171).

Ball describes the last major development in this saga in Chapter Six, titled “Bush Trumps the U.S. Supreme Court.” Here Ball is chiefly concerned with the Military Commissions Act (MCA), which Congress passed in October, 2006, largely at the behest of the Bush Administration. According to Ball, it virtually overturned HAMDAN and turned longstanding habeas practices upside down, leading to “the death of habeas rights” for hundreds of prisoners (p.183). The book concludes with a brief Epilogue and several [*101] appendices with the relevant international conventions, congressional statutes, and presidential orders.

As the above description indicates, BUSH, THE DETAINEES, AND THE CONSTITUTION covers a lot of ground. And it is very well documented: Ball’s analysis is interspersed with page after page of extensive, unedited excerpts from oral arguments, briefs, and opinions, as well as some 530 footnotes. Indeed, very little is left out of Ball’s discussion. There is even some mention of the related but distinct controversies about warrantless NSA wiretaps, rendition, CIA Black Sites, and torture at Bagram (Afghanistan) and Abu Ghraib (Iraq).

Scholars, journalists, and well informed citizens likely now know the roles in this sordid drama that have been played by George W. Bush, Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, Roberto Gonzalez, Theodore Olson, Paul Clement, and even John Yoo and David Addington, but Ball’s account also describes the actions of Robert Delahunty, William Haynes II, Jay Bybee, Stephen Cambone, Stephen Bradbury, and numerous other administration officials in articulating and defending Bush’s policies. And there is also passing reference to lonely Administration dissenters, like Colin Powell, William Taft IV, and Matthew Waxman, whose concerns were altogether ignored.

Ball’s book amounts to a damning indictment of the Bush Administration and its prosecution of “the war on terror.” Even for a jaded observer of the past seven years, it is virtually impossible to read Ball’s book and not emerge with renewed incredulity and indignation. Ball’s tone is scholarly but not always even-handed, such that the excesses of Bush Administration officials are emphasized. For example, he calls Bush a frequent liar (p.81) and “obdurate” (p.128), and he speaks of the president’s “chutzpah” (p.85), “incompetence” (p.35), “arrogant behavior,” and “feckless actions” (p.197). But if Ball’s judgments are harsh, they are well supported. And of course he is not alone in his criticism. Indeed, one suspects that even a staunch defender of the Bush Administration might have difficulty rendering some of the actions discussed here in a more favorable light.

And it is not just the President and his apologists who fare poorly here. Ball is also critical of the other two branches’ late and limited resistance to the excesses of the Executive, such that the reader may be as appalled the by the feeble Congress as by the unbridled Executive. Ball alternately calls the 2000-2006 Republican Congresses “somnambulant” (p.139) and “dormant” (p.177), or “acquiescent” (p.10), “bullied” (p.177), and easily manipulated. After all, it was Congress that gave the president so much authority for extraordinary unilateral action via the Authorization for Use of Military Force (AUMF) in 2001, the Detainee Treatment Act (DTA) in 2005, and the MCA in 2006. Ball indicates that things changed with the Democratic electoral victories in 2006, but he suggests that the newly Democratic Congress has underperformed, despite promises of investigations and new legislation to expose and thwart the president’s policies. [*102]

And even the Courts come in for some criticism, too. Ball says that the number and nature of the 2004 decisions left many things unclear and unresolved, perhaps unnecessarily so. He also notes that even some of the more critical justices were at times strangely reluctant to grant cert. Still, in the end, Ball credits the judiciary and Congress for checking the excess of the Executive: “Were it not for the U.S. Supreme Court and the 2006 midterm elections, this story’s ending would have been very different – much more dreadful than the one told in this book” (p.5).

Ball’s comprehensive treatment and sensitivity to the broader constitutional and political context are perhaps the book’s chief merits, but those merits may be at the cost of some comprehensibility. It is at times difficult to disentangle the relations among the many people, executive actions (e.g., executive orders, executive memoranda, signing statements, invocation of state secrets, and the like), acts of Congress, court cases, and treaties and conventions that are discussed. However, this difficulty may well be an unavoidable feature of the subject, as there are a lot of pieces in this puzzle. For example, as Ball notes, there was a virtual “blizzard of memos circulated for most of 2002 among high-level politicians and lawyers in the executive branch” about detainment (p.89).

While Ball’s book provides an excellent analytic overview of the detainee issue and its broader implications, it may soon need to be updated. In the next few months, the Supreme Court will issue decisions in two key detainee cases for which it heard oral arguments in late 2007 that question the constitutionality of the MCA: AL ODAH and BOUMEDIENE. Other cases will certainly work their way through the judiciary as well. But Ball is aware that this story is still ongoing: in the Epilogue, he predicts that more conflicts are coming, and he titles the book’s penultimate subsection “Back to the Supreme Court in 2008? You Bet!” (p.194).

This book may well become the single authoritative account of the Guantanamo detainees and their impact on the struggle between presidential power and constitutional limits. It will appeal to a variety of scholars and is suitable for a variety of academic courses.

REFERENCES:
Rossiter, Clinton. 1948. CONSTITUTIONAL DICTATORSHIP. Princeton: Princeton University Press.

CASE REFERENCES:
AL ODAH v. U.S. (06-1196) and BOUMEDIENE v. BUSH (06-1195), consolidated, Oral argument: December 5, 2007.

HAMDAN v. RUMSFELD, 126 S. Ct. 2749 (2006).

HAMDI v. RUMSFELD, 542 U.S. 507 (2004).

RUMSFELD v. PADILLA, 542 U.S. 426 (2004).

RASUL v. BUSH and AL ODAH v. U.S. (consolidated), 542 U.S. 466 (2004).

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© Copyright 2008 by the author, Graham G. Dodds.

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