FOUNDING FAITH: PROVIDENCE, POLITICS, AND THE BIRTH OF RELIGIOUS FREEDOM IN AMERICA

by Steven Waldman. New York: Random House, 2008. 304pp. Cloth. $26.00. ISBN: 9781400064373.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University, jvile [at] mtsu.edu.

pp.251-254

The popularity of recent biographies suggests that Americans continue to revere the Founding Fathers and to look to them for answers for contemporary questions. Steven Waldman taps into this reverence by examining the attitudes of these Founders respecting religion and matters of church and state. FOUNDING FAITH suggests that the Founders, who distinguished themselves as statesmen rather than as theologians, are better guides to the latter than the former. Waldman further argues that even with respect to matters of church and state, their views are worthy starting points for further discussion rather than definitive formulations that can resolve issues of our own time.

After an initial chapter on early American settlers, in both North and South, who valued religious freedom for themselves but did not extend it to others, Waldman focuses on the views of Benjamin Franklin, and on the first four presidents. Each of these founders emerges through Waldman’s portrait as a religious man committed to fairly wide freedom of religion. Although none appears to have been theologically orthodox, none quite appears to fit the Deist label that scholars often attach to them.

Franklin’s views were among the most interesting. Although Waldman does not call him a Gnostic, the categorization seems to fit Franklin’s belief that an infinite God might have created individual Gods for different solar systems. While doubting the divinity of Christ and stressing a religion of good works rather than personal faith, Franklin expressed a Christian-like hope for the resurrection of the body.

Washington had a clear sense of God’s Providential Care over his own life and the birth of the nation, practiced toleration of Christian and non-Christian faiths both as a military leader and as a president, and may have been more influenced by his membership in the Masons than by his membership in the Episcopal Church. As president he issued Thanksgiving Proclamations and commended religion as essential to good government.

Adams long advocated state support of religion and was, through much of his life, strongly anti-Catholic. During the Revolution, Adams shared the idea that God was exercising his Providential care on behalf of the American cause, and, although he signed a treaty with Tripoli specifically denying that the United States was a “Christian nation” (p.160), some of the proclamations of Thanksgiving that he issued as president suggested that he believed God favored Federalist causes. [*252]

Jefferson, who concealed from the public his attempt to rewrite the New Testament to exclude accounts of miracles, admired Jesus as a great moral teacher but did not believe he was divine. Jefferson nonetheless garnered evangelical support and attended church services in the nation’s capitol building. Waldman provocatively suggests that Jefferson’s faith in God was based largely on his belief in a form of “intelligent design” (p.84).

Observing that there were more than 150 incidents of persecution of Baptists, which Waldman describes in vivid detail, in the vicinity of Virginia where Madison lived, Waldman suggests that these events shaped Madison’s views of religious toleration more than “ideas from Europe” (p.100). Madison advocated free exercise over mere toleration, resisted Patrick Henry’s plans for a religious assessment, and ultimately succeeded in adopting the Virginia Statute for Religious Liberty that Jefferson had proposed. While scholars continue to debate Madison’s religious beliefs, Waldman believes that Madison strayed ever farther from the theologically orthodox teaching to which he was exposed at the College of New Jersey (today’s Princeton), but expressed confidence that more robust faiths, including Christianity, would flourish in a regime that honored freedom.

Charles W. Dunn (1984) has made the same point, but Waldman emphasizes that Deists and evangelicals were more likely to be allied than at loggerheads during the early republic. The Founders emphasized both faith and reason, and “Deists were using Christian language, and vice versa” (p.89). Thus, despite his heretical religious views, many Evangelicals strongly supported Thomas Jefferson, and Madison mustered Baptist votes to be elected to Congress. Waldman further emphasizes evangelical support for the American Revolution. This support stemmed from opposition to British recognition of Catholicism in Canada and to fears that Britain was about to establish Anglican bishops in America.

In contrast to those who would characterize the US Constitution as “godless,” Waldman believes that “it was pro-religion, but in a way that was not obvious to all.” More specifically, Waldman believes that “The Constitution demanded a paradigm shift, away from public responsibility and toward private” (p.134). In tracing the birth of the First Amendment, Waldman notes that pragmatic compromise might have been as important as the views of James Madison. Recognizing that the Amendment was initially designed to limit the national government rather than the states, Waldman does observe that the Bill of Rights was “intended to restrict government power, not expand it.”

Waldman’s discussion of the approaches to the First Amendment by the early presidents is especially important. In Waldman’s description of the letter to Danbury Baptists where Jefferson introduced the metaphor of the wall of separation of church and state, Waldman demonstrates that Jefferson specifically referred to a wall between the national government and the state, although more generally Jefferson also disfavored government encouragement of religion.

Waldman oversimplifies when he suggests that the decisive blow for [*253] separation of church and state occurred not with the adoption of the First Amendment but “when Lee surrendered at Appomattox” (p.189), but his point is that it took the Fourteenth Amendment, and subsequent judicial interpretations, to apply the First Amendment to the states. On one occasion when Waldman cannot be sure of details, he asks that readers “imagine” a conversation between James Madison and John Leland (p.137), but he generally avoids speculation and, on most occasions steers deftly between both liberal and conservative fallacies, which he uses as foils, respecting the Founders. Thus, he concludes that most Founding Fathers were neither Deists nor conservative Christians; he denies that the First Amendment mandated absolute separation of church and state while similarly denying that the idea is a twentieth century invention; he denies that separation of church and state is necessarily antireligious or that the Framers had figured out all related issues.

Waldman believes that Madison’s views on church and state were the most influential and the most profound, but he ultimately recommends avoiding “using the Founders as historical conversation stoppers” (p.196). The issue is not whether modern practices are “constitutional” but whether they are “wise” (p.197). Having highlighted the Founders’ own tolerant attitudes toward others, Waldman suggests that “we should all cut each other some slack.” He thinks most current debates address marginal issues, and that we should seek to understand those who differ from us as “inaccurate” rather than as “corrupt,” “mistaken,” or “evil” (p.198).

As the editor of Beliefnet.com and former editor of U.S. NEWS & WORLD REPORT, Waldman writes in a readable style that will engage most readers and only occasionally shock more advanced scholars – as when he suggests gently slapping James Madison and asking him what he meant by the First Amendment (p.154)! Waldman’s endnotes and bibliography indicate familiarity with most primary and secondary sources. He knows that the Continental Congress added some of the references in the Declaration of Independence that scholars sometimes attribute to Jefferson and that Madison crafted a number of Washington’s documents that make similar references. Occasionally Waldman will miss an issue as when he reports (p.160) that Washington said “So Help me God” when taking his oath without indicating that there is a contemporary dispute about the matter, but he is generally aware of nuance. Thus, he correctly reports that the Constitutional Convention did not adopt Franklin’s proposal to begin each day’s proceedings with prayer and reasonably suggests, with reference to an earlier Continental Congress, that delegates may have failed to do so for fear that choosing a chaplain would further divide the group.

Readers interested in the Founders’ faith should also consult David L. Holmes’ THE FAITH OF THE FOUNDING FATHERS (2006), which has a particularly interesting chapter on the faith of founding wives and mothers, and Jon Meacham’s AMERICAN GOSPEL: GOD, THE FOUNDING FATHERS, AND THE MAKING OF A NATION (2007), which is also written for a popular audience. Scholars who are more interested in subsequent legal [*254] developments, and especially in US Supreme Court decisions, can do no better than Martha C. Nussbaum’s magisterial LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY (2008). Whereas Waldman highlights Madison and the First Amendment, Nussbaum’s book underlines the important role that Roger Williams and principles of equal protection have played in justifying religious freedom. Mark A Noll and Luke E. Harlow have further explored the continuing role of religion in the US in the second edition of their RELIGION AND AMERICAN POLITICS: FROM THE COLONIAL PERIOD TO THE PRESENT (2007). Ironically, at a time when scholars probably know more about the Founders’ own views of religion than ever, evidence also compels us to be less dogmatic in hypothesizing how they would have resolved today’s most divisive controversies.

REFERENCES:
Dunn, Charles W. (ed). 1984. AMERICAN POLITICAL THEOLOGY: HISTORICAL PERSPECTIVE AND THEORETICAL ANALYIS. Westport, CT: Praeger.

Holmes, David L. 2006. THE FAITH OF THE FOUNDING FATHERS. New York: Oxford.

Meacham, Jon. 2007. AMERICAN GOSPEL: GOD, THE FOUNDING FATHERS, AND THE MAKING OF A NATION. New York: Random House.

Noll, Mark A, and Luke E. Harlow (eds). 2007. RELIGION AND AMERICAN POLITICS: FROM THE COLONIAL PERIOD TO THE PRESENT. New York: Oxford.

Nussbaum, Martha Craven. 2008. LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY. New York: Basic Books.

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© Copyright 2008 by the author, John R. Vile.

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AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA’S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR

by Christian G. Fritz. New York: Cambridge University Press, 2008. 440pp. Hardback. $80.00/£50.00. ISBN: 9780521881883.

Reviewed by Justin Wert, University of Oklahoma. Email: jwert [at] ou.edu.

pp.246-250

The last decade has witnessed an increasing and sustained analysis of “popular constitutionalism” as a historical and normative object of study in constitutional law and theory. Among legal academics, Larry Kramer’s, “THE PEOPLE THEMSELVES,” and Mark Tushnet’s, TAKING THE CONSTITUTION AWAY FROM THE COURTS, are perhaps the most recent and well-known attempts to give new life to the important role that non-judicial political actors – and even citizens more generally – have played in giving meaning to the constitution. Among political scientists, Keith Whittington’s CONSTITUTIONAL CONSTRUCTION is still the most thorough account of the important role that other American institutions (including Congress, the Executive, and state legislatures) have played in constructing constitutional meaning. More generally, the “regime politics” literature, situated mostly in political science, has amassed an impressive account of constitutional change more broadly in American politics, as it has resurrected and modified Robert Dahl’s singularly influential account of the Supreme Court during the height of the behavioral revolution (Keck 2007; Dahl 1957). These accounts of Constitutional theory, change, and development, though, are not new. Starting with Walter F. Murphy, there has been a small, but nevertheless influential, cadre of scholars like William F. Harris II, James Fleming, Sotirios Barber, and Wayne Moore, who have zeroed in on issues of departmentalism, judicial supremacy/judicial review, and the imperfect relationship between limited government and democracy that characterizes the entire enterprise of written constitutionalism in the United States. All of these accounts and approaches have led to a much greater understanding of the role that a more robust understanding of constitutionalism – as the full panoply of governmental institutions – has played in accounting for political change and development.

In AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA’S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR, Christian G Fritz (Law, University of New Mexico) has contributed a smart and very useful volume that further seeks to delve into the original understandings and subsequent development of how a sovereign American people understood their new political identity during the antebellum period. What is particularly useful is the developmental emphasis of his account that assumes neither a stasis in this understanding of the people’s sovereignty nor a singular explanation of its development. [*247]

Fritz contends that modern scholarship on questions of the “people’s sovereignty” (as opposed to the more infamous moniker of ‘popular sovereignty’) suffers from two distinct and potentially fatal premises that he seeks to correct in AMERICAN SOVEREIGNS. First is the notion that the people’s sovereignty is a fictional construction (Morgan 1989). And second, is the idea of the people’s sovereignty that assumes a fixed or “background notion” definition and understanding, mostly attributed to Larry Kramer (2005). These two reigning theories are effectively set aside in Fritz’s volume.

Fritz first introduces two related, but distinct, notions of the people’s sovereignty that the Founders – and subsequent political generations up to the Civil War – employed in their understanding of what it meant in theory and practice for “the people as the sovereign whose written constitution grants and guides the legitimate exercise of government authority” (p.1) to rule themselves. The first of these two “lost” ideas is an understanding of the people’s sovereignty as an “expansive” notion of one that “adhe[res] to procedures specifying constitutional change” for “determining the will of the sovereign” but is not necessarily bound by those procedures in creating constitutional change or legitimizing it. This perspective is “expansive” because it seems to operate with little to no boundaries that the sovereign people respect in terms of governing themselves under written constitutions (p.3). The second is a “constrained” view that made “procedure” the test of legitimacy. The “people” certainly gave their consent and authority to create written constitutions that would bind themselves at some original point, but the subsequent role of the people was to be a “passive” one in which they authorized only their duly elected representatives to rule in their name. The “constrained” view of sovereignty, however, was not as plastic as we would assume, for this view also condoned change outside of formal procedures (p.4).

Thus, aside from the Founding generation’s general agreement that the people were sovereign, these two distinct and often times contentious approaches characterized the antebellum period’s approach to sovereignty. Moreover, because these two approaches were contending approaches, Fritz is able to suggest – and show – that there was a considerable, but by no means settled, conception of the people’s sovereignty.

The book is divided into three substantive sections with more substantive chapters explaining each section. In Part One, Fritz details the Revolutionary and early state understandings of the people’s sovereignty. Initially confronted with the gravity and importance of having the ability to be their own sovereigns, Americans moved from British theory to American practice in accepting and implementing their newly won role as the author of their own political world. However, the only real agreement during this period was the more general notion that the people were sovereign, not how or what that sovereignty looked like. Fritz demonstrates the remarkable degree of diverse understandings of just how this idea was put into practice. In this section he also shows how this new idea of sovereignty, when claimed and asserted by the people, contains within [*248] itself the seeds for controversy and tension. The fact that the people now had the power to create governments by which they would be bound, also implied that they could destroy them as well. As a nascent “people” began to grapple with an equally nascent idea, they soon realized that contending conceptions would have to be reckoned with.

In Part Two, Fritz continues this theme as he argues that, during and immediately after ratification, the Constitutional consensus was still not achieved on the meaning of the people’s sovereignty, through a detailed examination of these competing understandings as they played out during the Whiskey Rebellion, the Nullification Crisis, and the Virginia and Kentucky Resolutions. It is in this section, moreover, that Fritz begins to account for the beginning of the end of the two initial perspectives on sovereignty: the “constrained” and “expansive” views. Increasingly during the 1830’s and 1840’s, sustained discussions of the expansive and constrained views of sovereignty that characterized the Founding of the national and state governments became partly eclipsed by a more general notion that the key constitutional issue in American constitutional thought was the perpetuity of the “Union.” This shift, consciously or not, militated against both of the two original conceptions of sovereignty, for if the Union of the states was the key problem (and the key normative goal), then the people’s sovereignty was weakened because this more pressing idea became more necessary to resolve.

In Part Three, Fritz shows that even after seventy years of constitutional development, there were still competing and unresolved tensions within the more general notion of sovereignty. He does this through a detailed account of the Dorr Rebellion in Rhode Island in 1842. This section is particularly useful, not only for its consistency with Fritz’s overall argument in AMERICAN SOVEREIGNS, but also because the Dorr Rebellion is one of the most understudied events in American Constitutional history and development. Fritz clearly shows this, but Chief Justice Roger Taney’s subsequent opinion in LUTHER v. BORDEN is also important because it became the precedent for the doctrine of “political questions” in American constitutional law, a question that is more than relevant to ideas of popular constitutionalism. This doctrine was not only immensely important for the debates concerning the theoretical foundations of “states” during Congressional Reconstruction, but it also has tremendous import for current debates surrounding political questions, particularly involving voting rights (see, e.g., BAKER v. CARR). These debates make it clear that we still have not come to an agreed upon notion of the definition and the contours of the people’s sovereignty even as we enter into the twenty-first century.

In the Epilogue, Fritz sets out to distinguish his conception of the multiple understandings of the people’s collective sovereignty from other scholars and from the more general current understanding of sovereignty on the modern Court. As stated earlier, Fritz’s conception of the people’s collective sovereignty differs significantly from that posited by Kramer, because Kramer assumes an almost singular notion of sovereignty. [*249] Fritz smartly argues that competing conceptions of sovereignty did not emerge from one unified set of assumptions but instead grew piecemeal during the antebellum period. Thus, “the constitutionalism that holds sway today is not a natural inheritance but the product of choices Americans made between shifting understandings about a collective sovereign” (p.280).

This argument about the piecemeal development of notions of the people’s sovereignty is perhaps the book’s greatest strength, as it ties together constitutional theory, law, and larger developmental issues in American politics. However, this argument is potentially the book’s greatest weakness, as well. Fritz convincingly articulates the serpentine development of notions of sovereignty in the antebellum period, but we are still left in the dark, as it were, in understanding exactly how and why these multiple ideas fade away. For example, Fritz intersperses broadly interesting assertions throughout the book, such as “Contrasting eighteenth-century constitutionalism with today’s understandings suggests our current theory of what makes government legitimate was not inevitable.” It would be nice, though, for Fritz to tell us how he sees subsequent understandings of sovereignty developing, and what they actually were and are now. Moreover, he seems to suggest that the Civil War (and Reconstruction, too?) provides a marker of sorts between an older understanding and our modern one without explaining what exactly changed. To be fair, Fritz does begin to acknowledge these issues, but only in a footnote and belatedly at the end of the volume. He seems to suggest that antebellum ideas did in fact remain part of constitutional discourse after the Civil War but only in muted form, and that significant changes in conceptions of sovereignty occurred only after the Progressive movement (p.280, n.9). While these criticisms do not serve a fatal blow to Fritz’s overall thesis, they should be addressed.

AMERICAN SOVEREIGNS is a welcome addition to the literature on constitutional theory, legal history, and American political development. While the book is dense, it is nevertheless readable and presents unique criticisms and corrections, specifically concerning the literatures on popular constitutionalism and extra-judicial constitutionalism.

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

Keck, Thomas M. 2007. “Party Politics or Judicial Independence: the Regime Politics Literature Hits the Law Schools” 32 LAW & SOCIAL INQUIRY 511-544.

Kramer, Larry. 2005. THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW. New York: Oxford University Press
.
Morgan, Edmund. 1989. INVENTING THE PEOPLE: THE RISE OF POPULAR SOVERIGNTY IN ENGLAND AND AMERICA. New York: W.W. Norton. [*250]

Whittington, Keith. 1999. CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING. Cambridge: Harvard University Press.

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

LUTHER v. BORDEN, 48 US 1 (1849).

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© Copyright 2008 by the author, Justin Wert.

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KENTUCKY LAWYER: LEGENDS OF BENCH AND BAR

by Mac Swinford. Lexington: The University Press of Kentucky, 2008. 128pp. Cloth $19.95. ISBN: 9780813124803.

Reviewed by John R. Vile, Department of Political Science, Middle Tennessee State University, jvile [at] mtsu.edu.

The University Press of Kentucky has reprinted a book initially published in 1963 by Mac Swinford (1899-1975), a lawyer who received his legal education from the University of Virginia and served for many years as a federal judge in the Eastern and Western Districts of Kentucky. Law must have been in Swinford’s blood since his father, his son, and five of his grandchildren have chosen the profession. The dust jacket of the book further mentions that “Judge Swinford wrote the nation’s first post-BROWN v. BOARD OF EDUCATION desegregation order, requiring Adair County to allow African-American students to attend the county schools,” but the precious little biographical information – clearly a missed opportunity – that the book provides is otherwise confined to a two and a half page introduction written by Judge Eugene E. Siler, Jr. of the US Sixth Circuit Court of Appeals.

Good lawyers are, or used to be (one thinks particularly of Abraham Lincoln), natural born raconteurs and joke-tellers, and at a time when judges and lawyers often rode circuit, one can imagine them swapping some of these stories late at night in an inn with plenty of bourbon to go around. The book has no footnotes and makes no pretense at scholarship, and, were court room rules against hearsay to be applied, it is doubtful that a fourth of the text would survive.

Swinford appears to have attributed at least one good story to each of the notable Kentucky lawyers and politicians he met or knew by reputation. Swinford’s stories are about as good as any but probably lose something in the translation from oral transmission to the written page. Still, this reviewer doubts that many outside the Kentucky bar (and those largely of a previous generation) will, without the personal knowledge of their characters, think the stories are quite as funny as Swinford thought they were.

Tales include those of female defendants who borrowed or “rented” babies in order to avoid jail time, of a politician who uses the hanging of one of his clients as a occasion to direct political bombast at the assembled onlookers, of a schoolteacher who sues a former fiancé for a broken heart, of a “gift” of moonshine during National Alcoholic Prohibition attributed to Santa Clause, of jurors’ fears of catching “obstetrics,” of a lawyer-politician’s attempts to repeal dog-collar laws by orating about the perpetual faithfulness of man’s best friend, and the like. Swinford, who sometimes strays from his initial tale, cannot resist telling a good story, even if it has more to do with a politician or other notable figure rather than with a lawyer. Swinford even includes a ghost story of a man wrongly convicted and hanged for a murder he did not commit. [*245]

Unlike similar collections of lore from the period that this reviewer has examined from other Southern states, Swinford’s stories are not racist, although his occasional identification of individuals by race and his references to “Negroes” seems a bit dated. After identifying an individual as “what was called in those days an old maid,” he hastens “to renounce” such a term as “unjust and unkind” and suggest that it should “be stricken from our lexicon” (p.58). Indicative of the time period that it covers, although women sometimes figure prominently as victims or defendants, not a single story features a woman judge or lawyer. By contrast, several stories feature throngs of locals gathered for public hangings, and most of the lawyer heroes are adept at quoting Shakespeare and the Bible.

Swinford was proud of his profession. He believed that law is “the most important of all the sciences” (p.28) and that the “watchword” of lawyers should be “liberty under law” (p.29). He romantically referred to lawyers as “plumed knights” committed to the profession’s “preservation and defense” (p.30). Although Swinford makes no reference to scholarly discussions of the role of a judge (or, indeed, to any other matter), he ends the slim volume by citing Woodrow Wilson’s observation that judges need to know that, like an oak tree, the law grows.

In brief, the book is what it is – a short collection of stories and anecdotes about the “good old days” of practicing law in Kentucky. It might be an appropriate source for tales for an after-dinner speech, provide background for a biography of Judge Swinford, make a nice gift for a senior lawyer from the state or for one of Swinford’s grandsons, or be appropriate for collections of Kentucky legal folklore, but its academic contribution is negligible.

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© Copyright 2008 by the author, John R. Vile.

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CONSTITUTIONAL CONTEXT: WOMEN AND RIGHTS DISCOURSE IN NINETEENTH-CENTURY AMERICA

by Kathleen S. Sullivan. Baltimore, MD: The Johns Hopkins University Press, 2007. 200pp. Hardcover. $45.00. ISBN: 9780801885525.

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University. Email: bowen [at] jcu.edu.

pp.239-243

In her farewell address as the president of the National Women’s Suffrage Association, Elizabeth Cady Stanton describes individuals as fundamentally solitary beings. “We come into the world alone, unlike all who have gone before us, we leave it alone, under circumstances peculiar to ourselves” She sought to acknowledge “the individuality of each human soul” (as quoted in Sullivan, p.146).

According to Kathleen Sullivan in this provocative, thoughtful and insightful book, this speech captures the aspirations and successes of nineteenth century suffragists. Abstracting the individual from status, rights or obligations was a uniquely feminist way of understanding American liberalism. She credits the leaders of this movement for shifting in fundamental and unalterable ways the nature of liberal discourse in the United States. Moreover, Sullivan is arguing that this shift in separating rights from the common law and removing the individual from the reality of lived experience and situations had its limitations and may have hindered gender equality. The argument is clear, engaging and persuasive while the text itself is somewhat uneven in advancing that argument.

Sullivan begins with a general introduction that places her analysis within the constitutionalism literature. The goal of the study, as she notes, is to look at “the rhetoric and strategies of the public campaign to liberate women from their common law status as married women” (p.4). While Locke and Jefferson among others sought to accommodate the common law within the liberal tradition, Sullivan is suggesting that suffragists pitted natural rights theory against common law and that such a stance was not inevitable or the only possibility. The reliance on codifying the law and moving away from the common law tradition helps usher in positivism in US law. From Sullivan’s perspective, this leads to a “formalistic and even absurd” equality doctrine (p.8) such that rights triumph over status. For many women, such an approach ignores their material conditions. This, of course, has long been the critique of liberal feminism in that it overlooks issues of class, race and other forms of status. What distinguishes Sullivan’s work is her argument that this critique is not of liberalism per se but rather that liberal feminists of the nineteenth century redefined liberal theory in the US context. Further, her argument is grounded in the supposition that the common law was not inherently oppressive. As she notes on p.17, “accepting the limits of liberalism means [*240] recovering the radical potential of the seemingly conservative rules and practices of the common law.”

This view of the common law is explicated in the first chapter, entitled “Codification of the Common Law Considered.” She provides a thoughtful and thorough review of the codification debate taking place in various quarters in the early part of the nineteenth century. Her respect and affection for the common law tradition is apparent. On p.28 she suggests that the transition to positivism would mean replacing “practical reasoning with expert knowledge” and “action with appeal to authority and experts” and “reference to experience with reference to rules.” While those in favor of codification might argue that a written code simplifies the law and makes it more accessible to the public, the progressive capacity of the common law should not be overlooked according to Sullivan. This tension and debate and the discourse it generated is really the legacy of the codification movement. While Chapter 1 seeks to provide a framework for analysis, it is perhaps not sufficiently connected the suffragist theme and overall thesis of the book. Still, read on its own it provides a lucid discussion of the codification debate and the relationship of the common law to that conversation.

The essence of the book’s argument is developed in the second chapter entitled “Abstracting Rights.” She illustrates the premise of the previous chapter – that the codification debate’s contribution to legal development was in changing the parameters of the debate rather than replacing common law with codified law – effectively by detailing the rhetoric of both abolitionists and suffragists. The abstracted nature of rights in the US context has its roots in the abolitionist movement. For example, the commitment to freedom of speech in the context of the slavery debate has to be an abstract one given that the US Constitution acknowledges the institution of slavery. Relying on an abstracted form of free speech meant pitting that right against the constitutional agreement to keep silent on the subject of slavery.

Women’s rights activists use this as the theoretical basis for their own rights discourse. Sullivan details the perspective of Angelina and Sarah Grimke suggesting their arguments about human dignity and agency are those on which much of today’s civil libertarian doctrine depends. This argument suggests that an “individual is a bearer of rights who existed prior to his or her socially determined status” (p.59). By contrast, Lydia Maria Child objects to decontextualizing women. Instead, she argued that one should “explore one’s status and find freedom within its constraints and manipulations rather than seeking to liberate oneself from it” (p.64). Sullivan is arguing that the logic and basis of the argument loses some of its power (theoretical and practical) in the shift from abolition of slavery to rights for women.

The women’s rights movement “drew upon the legacies of the legal codification movement and the political abolitionist movement to assail the common law, one of the primary sources of women’s civil and political status” (p.67). In Chapter 3, entitled “The Married Women’s Property Acts: Death Blow to Coverture?” Sullivan offers the [*241] fully developed argument suggesting that women’s rights activists of the nineteenth century constructed a new version of liberalism. They wrested from the common law relations that had always been part of liberal theory and American liberalism arguing that common law rules of the marital relationship was the source of women’s subjugation. Suffragists seized upon the opportunity presented by the married women’s property acts to dismantle the rules of common law. In sum, she is suggesting that the impetus for the passage of the acts was economic and class-based rather than about the liberation of women. Yet she acknowledges that it was a “compelling and timely narrative” (p.70) and that the emergence of the women’s movement coincided with coverture being in flux.

The narrative of women’s rights activists as articulated in this discussion redefines liberal thought because the concept of an individual is abstracted from all social status. And of course, liberalism prior to this depends on the reproduction of a society within the private sphere. There is an important institutional role that familial relationships play in the maintenance of a liberal society. Breaking down the legal notion of unity and then of coverture such that men were not necessarily the heads of households could threaten the foundation of Locke’s liberal society. So instead, women’s rights activists connect unity, coverture and thus the common law to a feudal and barbaric past, arguing that liberalism by definition abstracts rights from status. In so doing, they begin to delegitimize the derivation of rights within social circumstances which becomes a self-fulfilling narrative. This chapter is easily the most powerful and compelling of the book, challenging readers to reexamine the role of women’s rights activists in constructing liberal discourse. I think this chapter could stand alone as an excerpt given to students.

However, Sullivan’s argument is more subtle than suggesting that liberal feminists abstracted rights from experience leading to the demise of the common law tradition. Instead, she suggests that there are lapses in the argument and that coupled with the tenacity of the common law in domestic relations tells a more complete story. Chapter 4 is titled “The Married Women’s Property Acts: Collaborating for Coverture.” While the married women’s property acts gave women the right to own property (which is central to liberal theory), the civic capacity recognized in property rights did not extend to other aspects of women’s status and perceived civil disabilities (e.g. choosing a domicile). Sullivan documents this limited success of positivist legal change to emancipate women by reviewing laws and judicial decisions in Massachusetts, Indiana and Kentucky. She demonstrates the persistence of common law by detailing various decisions from the bench that define the status of women. Ultimately, she is suggesting that the intermediary status of married after the reform statutes is consistent with the modernization of status law where status regimes are reformed but not entirely abolished. While the suffragists thought that liberal principles only had to strike prejudices to realize the promise of liberal equality, instead coverture was being updated and modernized. Coverture survived, not only because statutes were never designed to abolish it, but also because [*242] different institutions collaborated to retain social orderings of domestic relations. Sullivan’s analysis is intriguing and insightful as she is suggesting that tapping into the progressive capacity of common law and working to effect change within that structure would have accomplished more than rewriting liberal narrative. From her perspective, the married women’s property acts were not a liberal alternative to the common law so much as they were a “working out of liberalism’s relation with the domestic relations of the common law” (p.110). The liberal feminist narrative of suffragists ignores the measures to balance rights with status and obscures sources of women’s oppression.

In Chapter 5, “The Domesticity of the Domestic Relations,” this argument is further explicated. Removal of prejudice is an overly simplistic approach to fostering equality. Sullivan documents the ways in which state supreme courts acted in collaboration with legislatures to retain status of common law and the legal construction of household when interpreting married women’s property acts. While this is a reasonable conclusion and interesting argument, this is probably the weakest chapter of the book as it lacks a clear focus and narrative thread. The fundamental point that change in domestic relations demonstrates that the women suffragist narrative is of limited use in explaining the acts and their interpretation because it overstates the prejudices against women and underestimates the extent to which domestic relations persisted (p.127) is well taken, but the thorough discussion of master-servant law was a distraction. Still, the suggestion that to accept the suffragist narrative and its expectations is to miss developments resulting in modernization of status regime is one well worth considering. With new justifications produced and new arrangements constituting a new, modern home – coverture was able to survive. The clear implication then is that equality was not the most effective means of emancipation for married women and other subordinates in domestic relations.

“Common Law Lost” is the title of the sixth chapter and nicely captures the summation of the book’s arguments. Sullivan suggests here that modern society could not complete the transition from status to contract while coverture proved so tenacious. She devotes considerable energy to a discussion of BRADWELL v. ILLINOIS (1872), noting that the majority opinion holds that the practice of law is not a privilege protected by the privileges and immunities clause reinforcing the limited scope of that provision in the wake of THE SLAUGHTERHOUSE CASES (1873). Yet the sexism of Justice Bradley’s concurrence is what is usually reproduced in case books and used to analyze the case which provides further credence to her argument that the suffragist narrative overstated prejudice and understates the institutional basis for women’s civil and political disabilities. In other words, because suffragists were successful in reconstructing the liberal narrative, subsequent audiences focus on the stereotypes of Bradley’s opinion to reinforce that narrative. It is an intriguing and ultimately convincing proposition. Ending the chapter with a synopsis of Elizabeth Cady Stanton’s “Solitude of Self” speech is poetic and appropriate in light of this argument. In between, Sullivan also acknowledges the [*243] reemergence of the codification debate in the 1870s and 1880s. Women’s rights become the dividing wedge of that iteration of the codification debate. When rights are abstracted from hierarchy, they also grow distant from experience and may fail to address adequately protections that those situated selves require. By the 1880s, however, common law was associated with allegiance to tradition and was no longer seen as adaptable, reformist or modern (p.144). While there has been some return of context to contemporary analysis of that era and an increased appreciation that common law tended to the material and physical needs of its citizens, it has not been sufficient to counter the now dominant liberal narrative constructed by feminists that emphasizes individual prejudice.

“While the activism of women suffragists encouraged a theory of equality that has benefited women in giving them recognition and opportunities, the loss of context in rights discourse brought a loss of the situated self in that discourse” (p.149). In the conclusion, Sullivan provides a lucid and concise review of her fundamental argument. Because the liberal lens was not trained in the progressive possibility of common law, institutions for family arrangements were cast as inherently illiberal. Yet it is possible to recognize that men and women have obligations within the home and that those obligations can be distributed fairly without unduly burdening anyone’s political or civil rights. Ultimately, though, the suffragist narrative dominates, in large part because of the New Deal and the broader recognition of status and situation by the federal government (thus reducing the differences among feminists as to the best strategy to effect government change). By the time of the second wave of feminism, formal equality had prevailed. Formal equality prevails in part because of institutional response and capacity. However, Sullivan’s contribution to the literature is her persuasive argument that political choices about rhetoric and strategy made by suffragists shifted the parameters of the debate in ways that still matter. Reform is too often based on fictionalized subjects rather than actual status and obligations. Yet she is suggesting that common law constitutionalism still has the potential to be recovered and that the uncertainty (as contrasted with determinism) of common law allows for fluid and presumably productive contextualized conversation about meaningful equality. It is an interesting perspective and one well worth discussing with students. I have found this work to be enormously instructive while teaching a gender politics course this semester. I think it would have similar power in a civil rights and liberties class. All but the most sophisticated undergraduates would struggle a bit reading this text as part of a course, but the discussions and analyses that consideration of this text would likely engender makes it well worth the struggle.

CASE REFERENCES:
BRADWELL v. ILLINOIS, 83 U.S. 130 (1872).

THE SLAUGHTERHOUSE CASES, 83 U.S. 36 (1873).

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© Copyright 2008 by the author, Lauren Bowen.

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BETWEEN FREEDOM AND BONDAGE: RACE, PARTY, AND VOTING RIGHTS IN THE ANTEBELLUM NORTH

by Christopher Malone. New York: Routledge, 2008. 272pp. Paper. $28.95. ISBN: 9780415956970.

Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff [at] jsums.edu.

pp.235-238

It is a rare and memorable joy to encounter a book that seamlessly interweaves two disciplines in order to provide meaningful analysis of a previously unexplained phenomenon; this book is such a source of pleasure. In BETWEEN FREEDOM AND BONDAGE, Christopher Malone endeavors to explain the discrepancies between four Northern states in their responses to black suffrage claims during the antebellum years. He accurately notes that until recently the primary narrative regarding black male suffrage focuses upon the passage and evasions of the Fifteenth Amendment ignoring the many states where enfranchisement was not limited by race until the states began rewriting their constitutions after the Revolutionary War. The first state to isolate voting to whites was not surprisingly Virginia in 1762; however, West Virginia did not restrict the franchise to white males until 1863. Yet, some states, like Massachusetts, never restricted suffrage by race. Malone argues that within these years an intriguing story waits to be told. While there have been some recent scholarship detailing the development of the right to vote – Alexander Keyssar’s THE RIGHT TO VOTE in particular comes to mind – there has been very little examination of the development of voting rights beyond detailed examinations of the Fifteenth Amendment and the Voting Rights Act of 1965 (e.g., Davidson and Grofman 1994; Valelly 2004; Valelly 2005; Landsberg 2007), interpretations of the implementation of majority/minority districts and their implications (e.g., Peacock 1997; Canon 1999; Kousser 1999; Yarbrough 2002), and outside of the law reviews. As Malone convincingly argues,

the story of black enfranchisement in the antebellum period does not fit into a simple, unidirectional synthesis. . . There was no long steady march toward democracy for northern blacks. The right to vote was not characterized by irresistible expansion. Neither was its attainment, when it did occur, astonishingly easy. With no federal statutes on the books to which blacks could appeal to for protection, it was unclear whether blacks were meant to be included in the social contract instantiated in the first state constitutions drafted after the Revolutionary War . . . . In short, all across the North throughout the antebellum period blacks lived somewhere, to quote the noted historian Charles Wesley, “between freedom and bondage.” (p.5)

In chapter one, “The Beginning of the Story: Black Enfranchisement in the Antebellum Era,” Malone considers the limitations of current historical analysis of the development of voting rights. He argues that the absence of an overarching theoretical framework has [*236] resulted in an inchoate understanding of this very rich history. To remedy this inadequacy, Malone applies the analytical tools of three different subfields of political science to help understand the sources of these changes and to attempt to interpret contemporary aspects of racial conflict within the political arena of the United States. Attempting to develop a more complete understanding of race formation, Malone pulls from research on the “economic structure of racial conflict,” the “racial structure of partisan competition” and development, and the “discursive structure of racial coalition formation.” To test the validity and intersections of these explanations he investigates four separate case studies, chosen because of the highly diverse manner in which blacks were treated in these states: Rhode Island, Massachusetts, New York, and Pennsylvania. Drawing the case studies from the very detailed historical record and secondary scholarship of antebellum history, he hypotheses that in order for black disenfranchisement to occur, there will be three conditions:

(1) when racial conflict took place as an outgrowth of rapid economic and demographic change; (2) when political actors seeking electoral advantage were in a position to successfully prey on this racial conflict by arousing poorer white working classes: and (3) when an ascriptive racial belief system became the dominant racial paradigm for understanding citizenship rights for blacks. (p.18)

For each case study, he carefully investigates the historical factors (increased immigration of a white working class, new political party formation and nationalization of the party structure, and the sway a narrative assuming the natural inferiority of blacks held over a more paternalistic rhetoric in the public space) to explain the consequences for enfranchisement in the state.

The second chapter, “’The Minds of Blacks are Not Competent to Vote:’ Racial Voting Restrictions in New York,” details the first case study. New York is particularly interesting because, although New York never restricted the franchise to white men, it did place a property qualification on black male voters while simultaneously dropping such qualifications for whites in 1821. After a thoughtful and well-written description of the political and economic development of the state, Malone finds that racial conflict was intensified because of internal economic and demographic transitions, particularly the increasing conflict between the newly freed blacks and a growing working class white population over employment and housing opportunities. In addition, conflict within the New York Republican party from the Bucktail Republicans who sought to challenge Federalist control of state politics and who encouraged their members to engage in racially ascriptive language to capture the votes of the growing white immigrant class.

Chapter three, “’An Asylum for the Oppressed Injured Sons of Europe:’ The Disenfranchisement of Blacks in Pennsylvania,” examines a state that disenfranchised its black male population after protecting their right to vote for almost fifty years. While blacks were frequently prevented from voting due to intimidation in the late 1830s, they were not legally disenfranchised [*237] until party competition ended single-party control in Pennsylvania. Malone notes that these conflicts were “undergirded by a racialized discourse framed on two sides by competing racial belief systems. If the dominant view of Pennsylvania’s leaders was paternalistic in its outlook toward blacks during the Revolutionary period, this view lost out to the dominant ascriptive ideology of the state’s leaders by the 1830s” (p.63). Finally, the rapid growth of the black population in Philadelphia and an increasing poor white immigrant population throughout the state, led to competition for resources and employment and created a political environment receptive to the arguments and claims made by ascriptive ideologues.

Within chapter four, “’Servility is not Confined to Color:’ The Disenfranchisement and Reenfranchisement of Blacks in Rhode Island,” Malone examines what he deems the “most bizarre case.” Rhode Island statutorily disenfranchised black men in 1822 and then reenfranchised them in 1843 after the Dorr War. Again, Malone finds his model clearly explains these conflicting results. He argues that historically all three of his conditions were met in the 1820s at the time of the denial of black suffrage; however, by the 1840s and the beginning of the Dorr War, these three conditions no longer existed. Blacks joined racial paternalists during the political maneuverings and were then rewarded with the franchise. Consequently, Malone finds the ascriptive discourse was not powerful and condition three was not met.

The final state, Massachusetts, is discussed in chapter five, “’The Vaunted Superiority of the White Race Imposes Corresponding Duties:’ Massachusetts—The Exception to the Rule.” Masschusetts, alone among the case studies, ensured the right to vote for black men in the early 1780s and never retracted it. Applying his theoretical construct, Malone determines it also explains this outlier. He discovers that the power of the Garrisonians and the strength of abolitionist movement and its rhetoric ensured that ascriptive racism never took the same root in Massachusetts as it did elsewhere. Demographically, the black population in Massachusetts was consistently small, and the vast influx of Irish immigrants did not occur until later in the nineteenth century. Consequently, the so-called race threat was not part of public discourse in Massachusetts as it was in other states.

It is difficult to communicate the detail of the research provided by Malone in his discussion of the case studies in a forum such as this. He has provided a carefully researched historical study that is well-complemented by a carefully developed theoretical framework. It also seems ironic to be reviewing this book for the LAW AND POLITICS BOOK REVIEW. While often the outcomes of these political pressures on voting rights were legislation and although some of the factors influencing the political culture he assesses are litigation and judicial decisions, this book is less directly about the law or Constitution. It does, however, provide keen insight regarding how these types of constitutional and statutory protections and alienations are contrived and interpreted. One obvious criticism of this book, which Malone recognizes, is the lack black or female voices in the history that he recounts. However, since the [*238] purpose of the book is to examine how the political institutions responded to pressure regarding black male suffrage, the dominant (but not sole) voices are those already wielding political power.

While Malone attempts to apply his model beyond his designated timeframe to the traditional Civil Rights Era in his epilogue, “Reconstructing the Two Reconstructions: Antebellum Race Formation and the Nationalization of Party Politics,” his comparison of the First and Second Reconstructions is the weakest element of his work. This is not because his model does not work, but because the epilogue is too brief to develop his argument adequately or explore the counterfactuals to his analysis. His argument as to the validity of this model to other eras of racial conflict and in less carefully chosen case studies must wait to be tested.

REFERENCES:
Canon, David T. 1999. RACE, REDISTRICTING, AND REPRESENTATION: THE UNINTENDED CONSEQUENCES OF BLACK MAJORITY DISTRICTS. Chicago: The University of Chicago Press.

Davidson, Chandler and Bernard Grofman (eds). 1994. QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT 1965-1990. Princeton, N.J.: Princeton University Press.

Keyssar, Alexander. 2000. THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES. New York: Basic Books.

Kousser, J. Morgan. 1999. COLORBLIND JUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION. Chapel Hill: University of North Carolina Press.

Landsberg, Brian K. 2007. FREE AT LAST TO VOTE: THE ALABAMA ORIGINS OF THE 1965 VOTING RIGHTS ACT. Lawrence, Kansas: University Press of Kansas.

Peacock, Anthony A. (ed). 1997. AFFIRMATIVE ACTION AND REPRESENTATION: SHAW V. RENO AND THE FUTURE OF VOTING RIGHTS. Durham, NC: Carolina Academic Press.

Valelly, Richard. 2004. THE TWO RECONSTRUCTIONS: THE STRUGGLE FOR BLACK ENFRANCHISEMENT. Chicago: University of Chicago Press.

Valelly, Richard M. (ed). 2005. THE VOTING RIGHTS ACT: SECURING THE BALLOT. Washington, DC: CQ Press.

Yarbrough, Tinsley E. 2002. RACE AND REDISTRICTING: THE SHAW-CROMARTIE CASES. Lawrence, Kansas: University of Kansas Press.

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© Copyright 2008 by the author, Michelle D. Deardorff.

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CIVILIZING SECURITY

by Ian Loader and Neil Walker. Cambridge, UK: Cambridge University Press, 2007. 314pp. Cloth. $85.00/£45.00. ISBN: 9780521871204. Paper. $29.99/£15.99. ISNB: 9780521691598. eBook format. $24.00. ISBN: 9780511282669.

Reviewed by Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress. Lfisher [at] loc.gov. The views expressed here are personal, not institutional.

pp.232-234

Ian Loader and Neil Walker explore the capacity of the state “to act as the pre-eminent guarantor of security to its citizens.” That model is eroded in part by conditions of globalization, failures on the part of states to anticipate and respond to terrorism, the growth of the private security industry, and the emerging role of non-state actors. Also, critics object that “under the cloak of a ‘war on terror’ governments are mobilizing and responding selectively to threats in ways that place hard-won democratic rights and principles in great peril.”

CIVILIZING SECURITY is designed to examine the idea of security. What does it mean for individuals “to be and feel secure”? Loader and Walker defend the principle that security is an “indispensable constituent of any good society” and that the democratic state has an essential role in furthering security. That duty is complicated by the existence of authoritarian regimes and non-state actors that are hostile to what is called the free world. The goal is not to have a completely secure environment, but a condition where that is “more rather than less likely.”

The concept of “civilizing security,” as embodied in the book’s title, is never fully clarified. Chapter 1 begins: “Our argument in this book is that security is a valuable public good, a constitutive ingredient of the good society, and that the democratic state has a necessary and virtuous role to play in the production of this good. The state, and in particular the forms of public policing governed by it, is, we shall argue, indispensable to the task of fostering and sustaining liveable political communities in the contemporary world. It is, in the words of our title, pivotal to the project of civilizing security.” Perhaps the reader is supposed to look at the words necessary, virtuous, and liveable to understand what is meant by civilizing.

The second paragraph attempts to illuminate the meaning of civilizing, but the guidance is difficult to follow. “By invoking this phrase [of civilizing security] we have in mind two ideas.” The first, “which is relatively familiar if not uncontroversial, is that security needs civilizing. States – even those that claim with some justification to be ‘liberal’ or ‘democratic’ – have a capacity when self-consciously pursuing a condition called ‘security’ to act in a fashion injurious to it.” Is that civilizing or un-civilizing? It would appear to be the latter. Modern states “possess a built-in, paradoxical tendency to undermine the very liberties and security they are constituted to protect.” Under conditions of fear, states “are prone to deploying their power in precisely such [*233] uncivil, insecurity-instilling ways.” The authors seem to flag state behavior that is antithetical to the goal of civilizing security. Yet they claim that the state “is a great civilizing force, a necessary and virtuous component of the good society.” In what way does a state fulfill that purpose?

Loader and Walker explain that the book’s title “has another, less familiar meaning – the idea that security is civilizing. Individuals who live, objectively or subjectively, in a state of anxiety do not make good democratic citizens, as European theorists reflecting upon the dark days of the 1930s and 1940s knew well.” Citizens who live in fear “lack openness or sympathy towards others, especially those they apprehend as posing a danger to them. They privilege the known over the unknown, us over them, here over there.” Fear becomes “the breeding ground” of authoritarian, uncivil government.” This passage is unclear. It is true that the conditions in Europe in the 1930s fostered Nazism and fascism, but the social and economic climate that led to authoritarian regimes in Germany, Italy, and Spain did not produce the same type of government in other European countries. Moreover, if “security is civilizing,” the governments in Germany, Italy, and Spain brought security (at a cost) and certainly did not yield what could be called a civilizing of their societies. The authors say that security is civilizing. It can equally be said that security is un-civilizing.

The book proceeds to argue that security “is simultaneously the producer and product of forms of trust and abstract solidarity between intimates and strangers that are prerequisite to democratic political communities.” German citizens were afraid of Communism. The Nazi regime brought them security from that threat. German citizens feared the unemployment and inflation of the 1920s and early 1930s. The Nazi regime produced prosperity. Security by itself does not yield a civilizing influence.

How much of this dilemma is recognized by the authors. They ask: “what is security? What does it mean to be or to feel secure?” They write extensively about that question but shed little light. They say that security “is, in an important sense, destined to remain beyond our grasp.” Does that mean that the concept of security cannot be understood or that the condition of security is always imperfect? Loader and Walker leave that point unclear.

Part of the reason behind the lack of clarity in pursuing these issues is the writing style of the authors. The reader is confronted by these words and phrases: “neo-liberal thematization,” “commodified,” the “ideational component,” “synchronic,” our “ideational/material/institutional triptych,” “dignitarian,” “sacralized domain,” “a cosmology of timeless hierarchy,” a “difference-blind ideal,” and attempts “to square the conceptual circle.” This kind of presentation might be understandable to some. Most readers will find it difficult to wade through these passages to find an underlying theme and purpose.

The conclusion of a book offers an opportunity to wrap up and clarify central arguments. The authors do not do it. In deciding not to issue “institutional wish lists,” Loader and [*234] Walker “would envisage an extension of our conception of anchored pluralism, now looking upwards to transnational society as well as outwards to civil and market society and downwards to substate society.” Their model is “pluralist in its principled and non-negotiable recognition, not least by states themselves, that there are two levels of abstract political community at which we can think of security as a thicker public good that are not reducible to one another but which need different registers of debate and institutional fora for their articulation.” Left open are “the large ‘reframing’ question of how to address and resolve the possible tensions between the ‘aggregative’ or convergent tendencies of proposals or approaches arrived at in the purely national and international discourse and fora, on the one hand, and the more transcendent proposals and approaches arrived at in regional and global fora, on the other.” Having referred to non-negotiable recognitions above, Loader and Walker conclude by referring to the existing tension “and the need for its negotiation.”

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© Copyright 2008 by the author, Louis Fisher.

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THE FUTURE OF GENDER

by Jude Browne (ed). Cambridge : Cambridge University Press, 2007. 298pp. Cloth. $85.00/£45.00. ISBN: 9780521874410. Paper. $29.99/£15.99. ISBN: 9780521697255.

Reviewed by Jennet Kirkpatrick, Department of Political Science, University of Michigan. Email: jennetk [at] umich.edu.

pp.229-231

This is a timely anthology that, as the title suggests, looks to the future of feminist scholarship and gender analysis. The underlying question of this volume is (to paraphrase Joan Scott): Will gender be a useful category of analysis in the near future? Most of the contributors answer affirmatively, though they differ on what they take gender to mean, and they disagree on how gender difference should influence public policy. Also most answer this question by focusing on developments in Britain and Europe. In a particularly intriguing contribution, Terrell Carver answers negatively, arguing instead for “the end of gender” (p.116).

There are eleven contributors, including Nancy Fraser, Valerie Bryson, Ingrid Robeyns, Simon Baron-Cohen, Susan Hurley, Tony Lawson, Juliet Mitchell, Catherine Hakim, and Rosemary Compton. Together they represent an astonishingly broad range of disciplinary and interdisciplinary research. As the editor, Jude Browne, tallies it, the represented fields are “evolutionary psychology, psychoanalysis, sociology, socio-economics, socio-legal studies, social theory, [and] political theory” (p.3).

A risk of this kind of methodological pluralism is that it can strain at cohesion, making the contributions seem disparate or only loosely related. This is not the case with THE FUTURE OF GENDER. The volume is organized into three sections that make a good deal of sense and lend cohesion to the volume as a whole. Another boost to coherence is found in the chapters themselves. Many of the contributors have read the arguments made in other chapters and reference them in their own.

A particular strength of this volume is that the authors do not shy away from taking contentious positions. The second section on the sex-gender division is especially spirited; it crackles with controversy. In it, readers will find a series of arguments that focus on sexual difference, the body, and biology. This emphasis is unusual. Feminist scholarship has tended to concentrate on gender, a socially constructed form of identity that is seemingly more open to radical change than sexual difference. The contributors here upend this approach.

Along the way, they make some controversial claims, such as the average female brain is different from the typical male brain, polygamy may benefit women and further feminist interests, and gender may effectively be over. The first argument is made by Simon Baron-Cohen, who is careful to point out that average differences between male and female brains are just that, averages. As such, they reveal nothing about [*230] individuals, who may or may not be typical of their sex. With this caveat in place, Baron-Cohen draws on a number of scientific studies to suggest that the average male brain tends toward systematizing while the typical female brain exhibits a strong drive to empathize. Baron-Cohen points out that an implication of this research is that it is unlikely that the sex ratio in fields like mathematics or physics will be 50-50. But, as Baron-Cohen makes clear in his conclusion, there is no reason to accept such disparities. “If we want a particular field to have equal representation of men and women, which I think would be desirable . . . we need to put in place social policies that will bring about that outcome” (p.92).

The feminist argument for polygamy is made Susan Hurley who urges us to open our eyes to the extensive variety of reproductive patterns in nature. What will we see? Hurley argues that moving away from “a blinkered anthropocentric conception of sex” raises doubts about the stability of social monogamy for humans (p.99). In addition, Hurly suggests that polygamy may not be as harmful to women as previously supposed. She proposes that, for instance, “some women might take a cue from the lioness sisterhood and adopt a feminist version of polygamy, choosing to share a man who fathers their children, with all contributing to child-rearing” (p.113).

Terrell Carver’s “’Trans’ Trouble: Trans-sexuality and the End of Gender” concentrates on the body too, specifically on the bodies of those who do not fit into the traditional categories of gender or sex. Carver argues this group is increasing in numbers and prominence. It includes trans-sexual and inter-sexed individuals, those engaging in technologically assisted reproduction, and same-sex couples that choose to marry. As Carver sees it, these individuals complicate the categories of sex and gender. Some of Carver’s most interesting evidence comes from contemporary legal cases in which individuals and groups are challenging gender and sex norms. As a result, courts are struggling to craft a new and appropriately fitting language that will replace traditional terms like mother and father, husband and wife, and male and female. This struggle over language, Carver suggests, is indicative of a larger conceptual problem. It shows that law and ethics need to catch up with social and technological changes by re-conceptualizing the human subject. The old categories of sex and gender, he argues, just won’t do. They are inaccurate and exclusive.

This collection is also noteworthy for its attempt to integrate feminist theory with empirical scholarship. In an elegant and organizationally crisp contribution, Nancy Fraser charts two distinct phases in second-wave feminism. The first emphasized justice as redistribution, while the second focused on justice as recognition. Fraser argues that the future of gender justice lies in synthesizing redistribution and recognition, and in re-conceptualizing representation at a trans-national level. Fraser’s method of bridging the theoretical-empirical divide is reinforced in Jude Browne’s examination of how normative principles of equality can go terribly awry in implementation as law. Browne appraises the European Union’s Equal Treatment Principle, Britain’s Equal Pay Act of 1970, and Britain’s Sex [*231] Discrimination Act of 1975. She pays close attention to how these laws discourage individuals from bringing forward claims, address violations inadequately, and reinforce gender stereotypes. As Brown puts it, these are “misshapen policies which act to ‘herd’ individuals into self-fulfilling and self-perpetuating stereotypical roles” (p.275). One lingering question here and elsewhere in this anthology is how racial, ethnic, and religious differences play into the analysis. In Brown’s case, one wonders how the implementation of sex discrimination law has affected the lives of those who are in a racial, ethnic, or religious minority in Britain. Are these individuals herded into stereotypes as well? If so, how do racial, ethnic, or religious roles play into and interact with gender roles?

THE FUTURE OF GENDER underscores that feminist scholarship is composed of a range of divergent and oppositional arguments. Moreover, it suggests that the heterogeneity of the field is a boon, not a burden. The book’s strength lies not in wholly new intellectual adventures, but in the variety and richness of its contributions. Does gender have a future? It seems likely. As I write this review, Hilary Rodham Clinton is making a historic bid for the democratic presidential nomination and, as a result, gender, sexual difference, race, and feminism are increasingly a part of mainstream political analysis. For now, the outcome of Clinton’s bid is an open question, as is its long-term effect on American political history. Less uncertain, it seems to me, is whether questions about gender and feminism brought to the fore by recent political events will linger and nag. And, for these questions, THE FUTURE OF GENDER is a valuable resource because, rather than providing a single or definitive answer to them, it reveals that approaches are multiple and positions are many.

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© Copyright 2008 by the author, Jennet Kirkpatrick.

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IN THE RING: THE TRIALS OF A WASHINGTON LAWYER

by Robert S. Bennett. NY: Random House, 2008. 400pp. Paper $27.50. ISBN: 9780307394439.

Reviewed by Joshua S. Sellers, The Law School and the Department of Political Science, University of Chicago. Email: jss [at] uchicago.edu.

pp.226-228

American industrialist Henry J. Kaiser once stated: “Problems are only opportunities in work clothes.” Such is clearly the case for lawyers, and none more so than Robert S. Bennett, a prominent partner with the Washington, DC office of international legal powerhouse Skadden, Arps, Slate, Meagher & Flom. With forty years of experience to his name—all inside the Beltway—Bennett makes the short list of highly coveted legal problem solvers. In his memoir (Bennett makes clear at the outset that he has not written an autobiography), IN THE RING: THE TRIALS OF A WASHINGTON LAWYER, Bennett provides snapshots of his most notable clients and cases, including his representation of former President Bill Clinton, former World Bank President and US Deputy Secretary of Defense Paul Wolfowitz, and martyred New York Times journalist Judith Miller.

Before recounting his many legal successes, Bennett devotes a fair amount of manuscript to his childhood in Brooklyn, a period upon which he reflects fondly. It is here that we gain some insight into the origins of his instinct for competition, as well as the moral principles that guide him. As the eldest of two boys (Bennett is the older brother of conservative commentator and former Secretary of Education William J. Bennett), Bennett assumed a protective posture at an early age—a posture that was often manifested in the form of fisticuffs. In fact, Bennett reports fighting so regularly as a youth that his mother and stepfather attempted to bribe him with “a nickel a day for every day [he] did not get in a fight at school” (p.13). His pugilistic instincts foreshadowed a life of professional combativeness.

Despite his feistiness, Bennett describes a comfortable childhood, stating: “We were not Horatio Alger figures. Bill and I had all that we needed—and most of what we wanted—but most important, we were raised in a family that impressed upon us the importance of hard work, personal honesty, and integrity” (p.11). Bennett implicitly attributes the acquisition of these traits to his strong Catholic upbringing. He proudly recalls his time spent at Holy Cross Boys School, Brooklyn Prep, and eventually, Georgetown University. It was at Brooklyn Prep that Bennett first discovered his gift for competitive debating, the talent that would ultimately define his career.

Bennett graduated from Georgetown in 1961 intent upon becoming a lawyer. He initially attended the University of Virginia Law School, before transferring to Georgetown Law Center. Bennett’s first major break came when influential lobbyist Thomas G. Corcoran (“Tommy the Cork”) hired him as a summer law clerk, a position that set him on his way. [*227] Corcoran served as a mentor of sorts, inviting Bennett to the 1964 Democratic National Convention, encouraging him to pursue an advanced legal degree at Harvard Law School, and brokering his clerkship with Corcoran’s sibling, Howard F. Corcoran, on the US District Court for the District of Columbia (this court was subsequently replaced by the Superior Court of the District of Columbia under the Court Reorganization Act).

Bennett sharpened his trial lawyer instincts as a clerk, observing strategies that both succeeded and failed. He utilized these insights in his subsequent work as an assistant US attorney. Like all trial lawyers, Bennett developed his personal argument style on the fly, first prosecuting cases in the Court of General Sessions, and eventually in the US District Court for the District of Columbia.

With this background in place, Bennett’s personal narrative moves to the private sector.
He practiced at Hogan & Hartson before making a lateral move to Dunnells, Duvall & Porter, where he was given the freedom to build a white-collar defense practice. There is no question that this was a critical juncture in Bennett’s life. Despite the ubiquity of white-collar practice groups today, such was not the case in 1975. Bennett acknowledges his fortuity: “I knew I had the skills, but also I was very lucky because the post-Watergate scandal mentality was taking hold and there was an increasing demand for white-collar trial lawyers. Most big firms did not offer these services, but found that more and more of their corporate clients were getting embroiled in matters that required the skills of a criminal lawyer” (pp.90–91).

Bennett’s early successes defending defense contractors solidified his reputation as a reliable advocate. In a short time, the impressiveness of his client list would grow to include leading corporate figures and government officials. Bennett moved his entire white-collar group to Skadden in 1990.

The bulk of his text chronicles his highest-profile cases, often supplemented with detailed trial transcripts of his cross-examinations. These sections are likely to impress fellow trial lawyers or those familiar with trial practice. To the layperson, the skillfulness may be lost.

In fact, much of Bennett’s book is unlikely to absorb general audiences. With some notable exceptions including the aforementioned President Clinton and Judith Miller, and perhaps Caspar Weinberger and publicly tarnished former Cincinnati Reds owner Marge Schott, many of Bennett’s clients will be unfamiliar to readers removed from the DC legal and political scene (presumptive Republican presidential candidate John McCain is briefly mentioned as a figure in the Keating Five scandal). And in today’s culture of “behind-the-scenes” political expose (e.g., Clarke 2004; Crawford-Greenburg 2007; Woodward 2007), Bennett’s case descriptions are comparatively mild and are not presented to provoke shock or surprise. Unlike journalists or government officials who have since resigned, Bennett remains a practicing attorney—an attorney who relies on reputation and fair dealing to acquire clients of all stripes (not to mention [*228] confidentiality agreements). Those interested in partisan polemics should look elsewhere.

None of this detracts from what constitutes a highly readable overview of a great life in the law. Most lawyers can only dream of the opportunity to represent the figures Bennett has not only advocated on behalf of, but also often befriended. When the government seized the infamous Zapruder film without due compensation, Bennett got the call.

Many will agree with him that the media—“the scandal machine” as Bennett describes it— plays a large role in shaping public trials. Bennett laments the trend toward overzealous muckraking: “Washington, D.C., is not only tough but also mean, a town where the practice of personal destruction has been elevated to an art form” (p.223). This characteristic is on full display throughout the book, and much of Bennett’s talent seemingly lies in his ability to effectively massage and appease the Fourth Estate.

Through it all, Bennett has preserved his reputation for honesty and integrity. His bipartisan client list attests to that fact. He reveals no intention of retiring anytime soon, and closes his memoir by claiming that he “will continue to work as long as [he] is wanted and can function as [he] do[es] today” (p.363).

Washington, DC’s legal culture is distinct. Unlike New York City, the lawyer’s equivalent of Hobbes’ state of nature, DC provides a unique landscape upon which lawyers frequently traverse political corridors and engage political figures. Robert Bennett’s memoir, IN THE RING, outlines a paradigmatic example of life, in the vernacular, as a Washington lawyer.

REFERENCES:
Clarke, Richard. 2004. AGAINST ALL EMEMIES: INSIDE AMERICA’S WAR ON TERROR. Free Press.

Crawford-Greenburg, Jan. 2007. SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT. New York: The Penguin Press.

Woodward, Bob. 2007. STATE OF DENIAL: BUSH AT WAR, PART III. Simon & Schuster.

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© Copyright 2008 by the author, Joshua S. Sellers.

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LEGAL SYMBOLISM: ON LAW, TIME AND EUROPEAN IDENTITY

by Jiří Přibáň. Aldershort: Ashgate, 2007. 222pp. Cloth $99.95/£55.00. ISBN: 9780754670735.

Reviewed by Peter Brezina, Department of Legal Theory and Legal Education, Faculty of Law, Charles University in Prague. Email: peter.brezina [at] gmail.com.

pp.220-225

The latest book by Jiří Přibáň is challenging: it challenges usual views of interconnection between law, morality and politics by its Luhmannian background of autopoietic systems, it challenges the common modern conception of homogenous time by its hermeneutic twists, it challenges the regular perception of constitution-making by its re-thinking of the ‘us-them’ difference articulated in terms of both ethnos and demos. It also challenges, however, the reader: the text largely employs the specific vocabulary of several disciplines – mainly jurisprudence, theoretical sociology, political science and hermeneutic philosophy (resulting in what has been labeled a ‘post-modern bluff’ by some unwelcoming comments on a Czech law blog); the argument is not straightforward and at times is indeed difficult to follow; the book lacks a clear ‘punch-line’ of any kind, leaving any urge for ‘the answer’ not catered for. To my mind, all these challenges make the book all the more interesting and important, although, as I shall point out later, there are several weak spots that could have been avoided. Let us then face the challenge.

The theoretical background of the book is indeed highly varied. In his theorization of law, morality and politics, Přibáň draws on Niklas Luhmann’s theory of autopoietic systems and offers its original and revealing elaboration. He is, however, in no way confined to a strictly Luhmannian line of thought and uses a mosaic of both contemporary and past thinkers, stretching from T. Arnold to S. Žižek, to push systems theory to its limits and beyond. His notion of ‘symbol’ and ‘symbolism,’ as well as the thorough differentiation of ‘time,’ are derived from the hermeneutical tradition in philosophy and sociology, and he cites, among many others, E. Husserl, H.-G. Gadamer, N. Elias and J. Habermas (the attempt at reconciliation of the thoughts of Luhmann and Habermas is one of the most intriguing motives of the theoretical layer of this book). It should be noted at this point that he largely avoids the use of semiology or (post-)structuralism, so any expectations in this direction would be disappointed. In the legal field the sources range from J. H. H. Weiler to N. MacCormick and R. Alexy. In assessing the notion of the spirit of the laws, he ventures all the way back to Plato and proceeds through Hegel to Montesquieu and the German school of historical jurisprudence. Finally, the perspective which would arguably be of the greatest relevance to the audience of this review – that is, his perspective on political science, is to a large degree influenced by transition studies, complementing his mainly Europe-focused argument by connections with other contexts, especially the one of post-apartheid South Africa. Here, then, comes the first [*221] challenge: the reader should be able to follow the bulk of the argument with bits and pieces from works of other thinkers spread like lanterns along the path, pointing the way forward without hindering the flow of ideas by excessive explanation. It should not be a problem for anyone possessing fundamental skills and knowledge in the field of humanities and social theory; it could prove to be a major hindrance for a standard continental or even common law lawyer trained in the positivist tradition.

As stated above, the theoretical background of this book has a strong Luhmannian flavor, and before proceeding further into the more ‘political’ argument, I shall outline it here briefly. The key metaphor of the underlying theoretical argument is that of ‘noise’ as the means of communication between otherwise discrete systems of law, politics and morality. ‘Noise’ is the necessary, unavoidable, yet inherently uneasy and obscure link between these systems unable to share a common language (or ‘code’). Through this noise, the respective systems apprehend and internalize concepts that originally draw meaning from a different, foreign code. Through this noise the ‘totality’ of each system is breached by an experience of its own exteriority. Thus, unlike the common understanding, here the term ‘information noise’ has a positive meaning: rather than obscuring the communication it actually permits it at least in some form.

Přibáň’s theory is thus a decisive ‘no’ to all the criticisms accusing Luhmann’s theory of being totalitarian: ‘totality’ as a characteristic of an autopoietic system is revealed as operational discreteness, breached and fed from the outside without being denied as such. The notions of ‘system’ of law, morality and politics can thus be employed both in place of definitions (which are always periculosa), and as handy and revealing analytic tools.

With their help, Přibáň examines the notion of ‘the Spirit of the Laws’ as a transcendental frame of reference providing meaning to the plain text of law, tracing it from its ancient platonic roots to modern expressions by Montesquieu and Hegel. He shows persuasively that the notion of a single ‘Spirit of the Laws’ transcendental to (and thus shared by) all these systems is obscuring, as there is no hierarchy between them, and their common means of communication is just that: a form of noise with no inherent substantive value. ‘The Spirit of the Laws’ thus must be seen as a concept emanating internally from each system, and that in turn leads to several ‘spirits of the laws’ (or manifestations thereof), provoking noisy communication in their own right.

Moreover, the aforementioned historical overview reveals, through the idea of ‘the Spirit’ as “a symbol of the timeless present of transcendental moral ideals” (p.27), the basic inherent symbolic feature of law as such, namely its temporality. Přibáň proceeds to explore this feature further, unveiling its ambiguous (in many respects) character. Law is “a mechanism of social change and stabilization” (p.57); it uses historical events to stabilize the present and define the future course; it draws on ‘the timeless present’ and yet shapes the time as we live it. The latter is best exemplified by constitutionalization and revolution – two interconnected [*222] phenomena Přibáň uses as both prime examples and experimental grounds for a deeper analysis, thus extending his earlier works on the revolutionary changes of 1989 in Central Europe.

At this point we reach the part that is probably the most interesting from the perspective of political science, namely an analysis of constitution-making in post-soviet Central European countries, an assessment of the recent attempt at constitution-making at the EU level, and an evaluation of several specific ways of legal time-construction using examples of restitution and ‘lustration’ legislation embodying a unique retrospective aspect of revolutionary changes. All these motives share a common trait: the identity-building as a process using legal means and moral issues for specific political ends – all in terms of the systems theory, the whole idea being a prime example of application thereof.

With regard to the constitution-making processes, Přibáň focuses on the two rather conflicting, yet complimentary sources of identity: demos and ethnos. When dealing with the Central European context, he notes that the (ethno-) nationalist tones have played key roles in the politics of the region for decades and surfaced even in the midst of the communist era (Přibáň points to the post-Stalinist shifts in the late 1950s and 60s). The fall of the Soviet block turned out to incur a call for a new identity, and with lack of deeper rooted civil traditions in the respective states, ethnicity was the single readily available option. The relative weight of both of these conceptions can be to some extent assessed through textual analysis of the newly-drafted constitutions; however, the actual policies of the post-revolutionary countries show much stronger convergence than the wording of the documents in question. It should also be noted that these documents are somehow interrelated, and, for instance, the arguably most ‘civil-based’ (Czech) is a direct reaction to the one arguably most ‘ethnic-based’ (Slovak).

Přibáň shows that one of the major drives promoting the demos side of identity in these countries was the process of European integration, itself highly civil-driven. He even uses the term “taming ethnos” when describing this particular issue. Considering the history of the region, it is a highly welcome and appreciated input, although it may seem dismissive at first sight. However, he argues that the European project itself lacks any common political field and hence both demos and ethnos of its own, and thus cannot follow the identity-building logic of a nation state, as the failure of the constitutional attempt clearly exemplified. The reason is deep rooted in the fundaments of the entire European project, as it has always been characterized and pursued as ‘politics of depoliticization.’ “Politics communicated by the logic of economy and law is a founding paradox of the European Union” (p.117). To put it in different words: European politics is not an autonomous (autopoietic) political system; it does not use the political code (government/opposition), but rather codes of different systems in its communication. Furthermore, the ‘repoliticization’ of EU takes place primarily at the level of its Member States in the form of questioning the very concept of European integration and thus further undermining its weak legitimacy. Another option for ‘repoliticization’ – via ‘ethicalization’ of [*223] the EU, that is through establishing a moral field that would supplement the legal and economic systems and hopefully with time give rise to a genuine political field in its own right – is hampered by the very image of the EU as a cold, regulatory machinery with which it is indeed very difficult to identify.

The last part of the book is devoted to retrospective justice, so typical an issue in post-revolutionary (or ‘transition’) countries. Přibáň returns to the time-constituting aspect of legality and discusses the context and post-Soviet judicial history of Central European countries. He draws a line between the ‘continuity-driven’ approach of the more ‘transition’-characterized countries (Poland and especially Hungary, where even the new Constitution was formally adopted by the old communist Parliament in 1989) and the much more retributive approach present in the more ‘revolutionary’ ones. The message is quite clear: in the countries that had experienced a genuine rupture with the past era, there was an urge to embody this experience into the newly founded identity. The future required a more stringent reading of the past. In the final chapter Přibáň follows two phenomena closely linked with retrospective justice, namely restitution laws and constitutional case-law in that area in Hungary and Czech Republic, and the specific vetting policies introduced by ‘lustration acts’ in Czechoslovakia (and eventually enforced only in the Czech part of the divided country after 1993). He shows a clear difference between the ‘prospective’ approach adopted by the Hungarian Constitutional Court and the ‘retrospective’ approach adopted by its Czech counterpart. Although there are noticeable differences even between the laws under constitutional scrutiny, the judgments express a much more striking divergence, and Přibáň tries to point at its nuances. Finally he approaches the lustration acts introducing policies prohibiting certain exponents of the past regime (such as, most controversially, agents and collaborators of secret services) from holding some public offices. Apart from the standard apologies of such an approach, he raises the issue of these acts creating ‘scapegoats’ purifying the consciousness of the people loyal to the old regime for decades. Yet another instance of identity- and time-construction.

As I hope to have shown, this book (also published in Czech) raises a range of important and often highly controversial issues, be it in Czech or wider European contexts. To a reader unfamiliar with Central European politics of the early 1990s or with the background of the enlargement process of the EU culminating in 2004, it can provide invaluable views of an attentive (and to a certain degree participant) observer. And a reader only vaguely familiar with the theory of autopoietic systems can find here both a vivid example of its usefulness and a reason to delve deeper into its exploration. The book is, nonetheless, also liable of being criticized for some of its weaker spots, as I have pointed out in the opening part of this review. Let me conclude by revisiting these critical remarks.

I have marked the notion of ‘noise’ as the key metaphor of the theoretical background of the book. It can, nevertheless, also be employed as a more general metaphor for the book and for the ‘mode of communication’ [*224] between its individual parts (or ‘layers’). It fits well with avoidance of ‘constitutional’ and hence ‘constituting’ discourse that I appreciate; however, at times it leaves the reader with somewhat too few clues and links. Even the notion of ‘depoliticization of politics’ in EU context is presented without overt connection to the theoretical assumptions, and its reformulation stated above is merely my reading of this, to my mind, obvious link, and should be seen as such. Other instances of ‘noisiness’ include the terms ‘symbolism’ and ‘constitution’: the former, the would-be central tenet of the argument, remains rather undefined, and its clearest definition from the closing chapter can be objected as being too vague and involving a certain degree of circularity (“Legal symbolism is best understood as the legal system’s specific reflection of social expectations of communal togetherness, goodness and justice. It is a mode of legal communication originating in the symbolic communication of cultural unity and the moral values of a political community,” pp.195-196); the latter denotes a wider notion of constitution for the most part of the book, yet at times it quite clearly denotes the specific and single text of a legal document. This ‘noisiness’ is thus yet another challenge for the reader – and probably the least fruitful one.

REFERENCES:
Alexy, R. 2002. A THEORY OF CONSTITUTIONAL RIGHTS. Oxford: Oxford University Press.

Arnold, T. 1962. THE SYMBOLS OF GOVERNMENT. New York: Harcourt Brace & World.

Elias, N. 2001. THE SYMBOL THEORY. London: Sage.

Gadamer, H.G. 1976. PHILOSOPHICAL HERMENEUTICS. Berkeley, CA: University of California Press.

Gadamer, H.G. 2001. TRUTH AND METHOD. London: Continuum.

Habermas, J. 2001. THE POSTNATIONAL CONSTELLATION: POLITICAL ESSAYS. Cambridge: Polity Press.

Habermas, J. 1984/1987. THE THEORY OF COMMUNICATIVE ACTION, 2 vols. (trans. T. McCarthy). Boston: Beacon Press.

Husserl, E. 1965. PHENOMENOLOGY AND THE CRISIS OF PHILOSOPHY. New York: Harper and Row.

Luhmann, N. 2004. LAW AS A SOCIAL SYSTEM. Oxford: Oxford University Press.

Luhmann, N. 1995. SOCIAL SYSTEMS. Stanford, CA: Stanford University Press.

MacCormick, N. 1993. “Beyond the Sovereign State.” 56 MODERN LAW REVIEW 1.

Weiler, J.H.H. 1999. THE CONSTITUTION OF EUROPE: ‘DO THE NEW CLOTHES HAVE AN EMPEROR?’ AND OTHER ESSAYS ON EUROPEAN INTEGRATION. Cambridge: Cambridge University Press. [*225]

Žižek, S. 2001. DID SOMEBODY SAY TOTALITARIANISM? FIVE INTERVENTIONS IN THE (MIS)USE OF A NOTION. London: Verso.

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© Copyright 2008 by the author, Peter Brezina.

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STEM CELL CENTURY: LAW AND POLICY FOR A BREAKTHROUGH TECHNOLOGY

by Russell Korobkin with Stephen R. Munzer. New Haven: Yale Univer