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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