SAFETY CRIMES

by Steve Tombs and Dave Whyte. Portland, OR: Willan Publishing, 2007. 264pp. Hardback. $79.95/£50.00. ISBN: 9781843920861. Paperback. $39.95/£19.99. ISBN: 9781843920854.

Reviewed by Gabriel H. Teninbaum, Suffolk University Law School. Email: gteninbaum [at] suffolk.edu.

pp.396-398

Imagine you are a first year law student and your professor has posed a hypothetical question based on the following facts: a defendant has engaged in a pattern of behavior that virtually assures that people will be maimed or killed as a direct result of the defendant’s acts or omissions. The defendant is, or should be, aware of the high risk but, for financial gain and convenience, has chosen to continue engaging in the dangerous behavior. When the defendant’s course of actions results in serious injuries or death, will the penalty be a civil or criminal one?

For those who played out the hypothetical assuming the defendant was an individual, the answer is likely “both”: common law legal systems would likely consider the defendant’s reckless behavior criminal and imprison him; and the defendant would likely also be civilly liable and therefore have to pay money to the victims. However, if the reader assumed the hypothetical defendant was a business entity, the sanctions it would face have historically proven to be either none at all, or, at most, a modest fine.

SAFETY CRIMES is a book about reassessing the approach to recognizing and controlling workplace injuries under scenarios like those in the above hypothetical. To do so, Steve Tombs and Dave Whyte seek to identify the scope of the problem, analyze the current state of enforcement, and theorize about the best solutions to curb workplace injuries. The basic thesis of the book is that when business entities put people – whether workers or the public – at risk for serious injury, their dangerous behavior should be more closely regulated and discouraged by the government. However, a series of problems – ranging from governments disfavoring any penalty more severe than small fines for industrial bad actors, to systemic underreporting of work-related injuries – have led to regulatory agencies and society viewing workplace injuries as nothing more than unavoidable accidents. SAFETY CRIMES uses a theory-rich method to help the reader understand the root of the problems, current attitudes toward their treatment, and suggests some ways to fix them.

First, the caveats: the book is written by British authors, using British case studies, British law, and offering conclusions specifically aimed at making changes in the United Kingdom. However, that should not deter the reader interested in this topic: the British legal system is remarkably similar to that in the United States with respect to its response to occupational safety, with corollary agencies (HSE in the UK vs. OSHA in the US). Also, the theory and principles underlying the analysis and [*397] suggested changes are also applicable beyond the UK. Next, those with only a passing interest in the subject should be warned: this is a heavy book that focuses on theory and, at times, borders on esoteric. The premise of SAFETY CRIMES is simple enough, but in analyzing the sources and options for fixing the problem, Tombs and Whyte delve deeply into economic, political and legal theory. Because of the density of the book, unless the reader has knowledge in these subjects, or at least a strong yearning to learn more, it will be difficult to read more than a few pages at a sitting. Nonetheless, for those willing to put in the time and effort necessary to read SAFETY CRIMES, the reward is a well-crafted, sophisticated, creative analysis of a serious societal problem.

The book is ordered in a logical, easy to follow manner. To start, the authors define “safety crime.” In simple terms, they reason that a safety crime is an illegal act resulting in injuries to workers or the public that occurs because of deliberate decisions or omissions that grow out of a business entity trying to meet self-interested goals. To explain their concept of safety crimes, and the contexts in which they arise, Tombs and Whyte provide a series of case studies. In each (some of which are well-known, like the Bhopal, India explosion at a Union Carbide facility; while others are lesser known, like the death of a British dockworker), the authors describe the events of the incident and the environment that set the stage for the incident to occur. By presenting these case studies, Tombs and Whyte help the reader understand what they mean by safety crime by providing concrete examples of how pervasively careless attitudes and procedures of industry result in tragic, and predictable, consequences for workers.

The third chapter explains why such tragic injuries to workers are not “accidents” at all, and how the culpable pattern of risk-creating behavior by industrial actors is fundamentally indistinct from behavior of those who participate in what society typically defines as a “real” crime. Here, the authors also begin the task of explaining why it is that those in academia have failed to incorporate safety crimes into their mainstream understanding of violence and crime. Chapter 4 helps the reader see just how widespread safety crimes truly are: despite vast underreporting, the numbers establish that British workers are more likely to be victimized by safety crimes than traditional crimes of violence.

After completing the groundwork of defining the problem and its scope, Tombs and Whyte consider the reforms necessary to control safety crime. To do so, Chapters 5 through 8 examine ways to reframe the theoretical approach and suggest some solutions. In Chapter 5, the authors address how those conceptualizing conventional criminal law distinguish safety crimes from “real” crimes. They note how the process of the creation of bodies of law, and legal reform, are guided by capitalist social systems. As such, society defines its legal system at least in part with the goal of promoting capital in mind. This outlook creates tension with the need to keep workers and the public safe from unsafe industrial practices. In Chapter 6, the authors reflect on how the idea of a new category of “safety crimes” would assimilate into existing structures in the criminal law. Tombs and Whyte note [*398] that a series of technical legal problems make any approach they suggest difficult. Chapter 7 considers how existing safety law is enforced, empirically and theoretically. Here, they discuss a threshold problem of determining exactly how workplace safety regulation is enforced in practice because of a lack of transparency by the British agency charged with regulating workplace safety. The authors address theories of how and why workplace safety must be enforced by examining several approaches to which form is most desirable. In Chapter 8, Tombs and Whyte consider the empirical and theoretical options for punishing corporations and employers following successful prosecutions of safety crime, including the best practices to incentivize safety crime prevention, ranging from “shaming” corporations to a “corporate death penalty” forbidding industrial bad actors from continuing their operations.

The concluding chapter brings the preceding text together and suggests ways in which safety crimes can be better understood and controlled from a theoretical standpoint. Here, the authors return to discussing the various modes of categorizing industry’s culpability for work-related injuries. The focus of the conclusion, like most of the text, is on thinking about safety crimes in theoretical terms.

Because of its theoretical focus, it would seem that SAFETY CRIMES would not have much practical use. Yet, there is evidence someone is listening. In April 2008, a new law, the Corporate Manslaughter and Corporate Homicide Act, went into effect in the United Kingdom. The law dictates that if a corporation causes a person’s death as a result of reckless conduct, the corporation is subject to an unlimited fine, with a recommended punitive guideline of the corporation paying 5% of “turnover” (revenue) for a first offense. While its not clear that the ideas of Tombs and Whyte played a significant role in the new reforms, by bringing the issue of workplace safety to the forefront, books like SAFETY CRIMES serve as an important reminder of the significance of corporate responsibility, and how, with careful consideration, workers and the public can be made safer.

REFERENCES:
Corporate Manslaughter and Corporate Homicide Act 2007, available at: http://www.justice.gov.uk/publications/corporatemanslaughter2007.htm

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© Copyright 2008 by the author, Gabriel H. Teninbaum.

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LIBERTY’S BLUEPRINT: HOW MADISON AND HAMILTON WROTE THE FEDERALIST PAPERS, DEFINED THE CONSTITUTION, AND MADE DEMOCRACY SAFE FOR THE WORLD

by Michael I. Meyerson. New York: Basic Books, 2008. 336pp. Hardcover. $26.95/£15.99. ISBN: 9780465002641.

Reviewed by Staci L. Beavers, Political Science Department, California State University San Marcos. E-mail: sbeavers [at] csusm.edu.

pp.392-395

As a political scientist with a keen interest in political history, I read Michael I. Meyerson’s work here with great pleasure. His exploration of the tangled relationship of the primary authors of the works known collectively here as THE FEDERALIST was great fun to read, and Meyerson’s “partial originalist” theory of constitutional interpretation is intriguing. While I’m still not certain what critical new insights Meyerson was really able to provide about this pivotal time or about this critical set of writings, or even the essays’ import for today’s constitutional dilemmas, the book is a very interesting read.

Meyerson, a professor of constitutional law, clearly states his primary ends in the book’s Preface: “to present the most important teachings of THE FEDERALIST to a modern audience” (p. xi); “to demonstrate how and when we should call upon the views of the framers when we interpret the Constitution” (p. xii); and “to explore the lives of the authors of THE FEDERALIST and shed light on the unusual personal bond between Madison and Hamilton” (p. xiii).

The book is broken into two major sections. Part I addresses the context and the writing of the essays now known as THE FEDERALIST, and it pays particular attention to the tangled relationship of the essays’ two principal authors, Alexander Hamilton and James Madison. Part II lays out Meyerson’s theory of “partial originalis[m]” for utilizing THE FEDERALIST as a collective source to inform constitutional interpretation and also comments on some of the collection’s primary messages, including chapters devoted to separation of powers (ch. 8) and federalism (ch. 9) issues. An entire chapter (ch. 7) is devoted to consideration of Madison’s FEDERALIST 10.

I found Part I to be in some ways the more interesting portion of the book, with its insights into the stormy personal and intertwined professional histories of the primary protagonists. The book moved from their first meeting to their almost frenzied collaboration on these essays to the end of their friendship and ongoing professional antagonisms. For those already interested in political history, it is intriguing to think through how these very temperamentally different and seemingly incompatible men were able to become friends and to work closely together, even for a brief period of time, on such a work. How differently might THE FEDERALIST have turned out had Hamilton’s prior choices for his co-authors (including Gouverneur Morris or William Duer, pp.82-83) [*393] panned out, or had John Jay’s participation in the project not been cut short due to repeated medical emergencies (see pp.84-87)? In discussing the personal relationship of Hamilton and Madison, Meyerson documents that, even when they were on good terms, Madison exhibited frustration with his friend (pp.107-108). Under these circumstances, how did Madison manage to work with Hamilton in the first place, even as an anonymous co-author? While exploring this relationship was a key goal of the book (p.xiii), I am not certain Meyerson ever really does manage to come up with a convincing explanation for why Madison would agree to throw in his lot with Hamilton on a project of such importance. Eventually, of course, the relationship splintered during the Washington administration, as the two men engaged in numerous political and philosophical battles regarding the appropriate scope and divisions of federal power (see, e.g., pp.114-117, 118-120, 126-127, 128-129). Though Madison comes across as inconstant in his political views, Hamilton in particular comes across poorly in these pages. Given his brashness and continual propensity to offend, his early death resulting from a duel may not be difficult to fathom; instead, the reader is left asking how, aside from his sheer brilliance, Alexander Hamilton ever managed to rise to such heights or to survive in political life as long as he did? This portion of the book is enjoyable, but I am still left wondering how important these insights really are in today’s world? Even if, as Meyerson asserts, the “original understanding” of the Constitution is still relevant to today’s constitutional interpretation, what business is it of today’s citizens what the personal relations of these two figures really were?

Part II is probably the more significant portion of the book, even if it is less fun to read. Meyerson asserts that, while in many instances traditional takes on “originalism” may not be particularly helpful in guiding constitutional interpretation, it is appropriate to look to THE FEDERALIST as a potential guiding force with regard to interpreting the body of the Constitution ratified by the states by 1789. In his words,

THE FEDERALIST shows that it may make sense to be a ‘partial originalist.’ We can rely, at least presumptively, on the original understanding of those who drafted and ratified the original Constitution for issues of separation of powers and federalism, yet feel freer to use our more evolved understanding for determining the contours of individual rights and equality (p.xii).

Meyerson seeks to achieve a middle ground on this debate, emphasizing the import of “original understanding” rather than the perhaps unknowable “intent” of the Constitution’s framers; he also attempts to draw on the strengths of originalism and to address many of the claims against this approach to interpreting the nation’s charter (pp.149-157).

Perhaps in part because of his general disinterest in the “intent” of the framers, in tandem with the intellectual sophistication he sees in these essays, Meyerson appears untroubled regarding claims that THE FEDERALIST’s essays should be dismissed as “propaganda” of their day (p.ix, and see also pp.142-143 for a further discussion). He freely acknowledges that neither Madison nor [*394] Hamilton wholeheartedly approved of the document produced in Philadelphia (see p.72, cites omitted), with Hamilton even lamenting that the proposed document was merely “‘better than nothing’” (p.72, citing Farrand 1923). In discussing the splintering of the Hamilton-Madison friendship, he also notes that the same basic philosophical questions that ultimately divided Madison and Hamilton remain unsettled today (p.xiii, p.109). I am left curious regarding how, if Madison himself could not be persuaded by the force of THE FEDERALIST’s arguments over the next several years of his career (see, e.g., p.120), why should the rest of us be so convinced so many decades later?

While Meyerson discusses the importance of focusing on “original understanding” rather than “original intent” as his source of constitutional guidance and makes a very reasonable case that many of the authors’ contemporaries looked to THE FEDERALIST with respect, his assertion regarding “partial originalism” seems to hinge heavily on the fact that THE FEDERALIST’s authors provided a packaged, coherent set of publications that was widely disseminated in support of the Constitution that the Bill of Rights and later constitutional amendments did not enjoy (p.xii, pp.156-158). But it never is made clear how only three men could be expected to speak to the thinking of the whole class of men engaged in the writing and ratification of the US government’s fundamental charter and thus to put forward what the collective “understanding” really was. Additionally, while Meyerson does refer to a speech by Pennsylvania’s James Wilson as another extremely important contribution to the ratification fight (p.100, citing Bailyn 1993), he largely ignores other contemporary writings in favor of the proposed government charter. How can we know how influential this set of essays really was without having a more complete context regarding the tenor of the era’s discussion?

Certainly many past and present influential thinkers, including a number of Supreme Court justices, have agreed with Meyerson’s contention that THE FEDERALIST essays are worth a continuing look. Citing Melton and Miller (2001-2002), Meyerson notes that the “essays have been cited in over 300 Supreme Court decisions” (p.135). While Meyerson never contends that these writings should be read for absolutely binding interpretations regarding the meaning of the Constitution (see p.158) and even confronts Madison’s defense of the Three-Fifths Compromise (pp.94-96), he does describe the essays as “the single most important resource for interpreting the Constitution” (p.ix). Importantly, Meyerson insists on a comprehensive view of the collection as a guide to constitutional interpretation, rather than the “cherry pick[ing]” (p.184) that he asserts is sometimes evidenced by justices whose use of FEDERALIST essays may be more result-driven than geared toward sincere attempts to discern the “understanding” behind various constitutional phrases. He does not hesitate to take several justices to task for opinions in which he argues that such “cherry pick[ing]” took place.

One final point: while most of the book flows logically from one chapter to the next, one incongruous entry was Chapter 7’s discussion of FEDERALIST 10, [*395] Madison’s first contribution to the collaboration (p.164). Though the discussion of “factions” is widely celebrated today, Meyerson asserts that this entry “was essentially ignored for the first century after its publication” (p.163). However, since the chapter does little to address how THE FEDERALIST can be utilized to inform contemporary constitutional interpretation, its inclusion here is a bit mysterious.

On the whole, Michael I. Meyerson has presented an intriguing theory and an enjoyable take on constitutional history that I would recommend to those interested in political history and especially to those interested in the originalism debate.

REFERENCES:
Bailyn, Bernard. 1993. THE DEBATE ON THE CONSTITUTION. New York: Viking Press.

Farrand, Max. 1923. THE RECORDS OF THE FEDERAL CONVENTION OF 1787. New Haven, CT: Yale University Press. (Originally published 1911).

Melton, Buckner F. and Jennifer J. Miller (2001/2002). “The Supreme Court and THE FEDERALIST: A Supplement, 1996-2001.” 90 KENTUCKY LAW JOURNAL 415-440.

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© Copyright 2008 by the author, Staci L. Beavers.

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DEFINING RIGHTS AND WRONGS: BUREAUCRACY, HUMAN RIGHTS AND PUBLIC ACCOUNTABILITY

by Rosanna L. Langer. Vancouver, UBC Press, 2007. 224pp. Hardback. $85.00. ISBN: 9780774813525. Paperback. $32.95. ISBN: 9780774813532.

Reviewed by Simon Halliday, University of Strathclyde, The Law School, and Conjoint Professor at the School of Law, University of New South Wales. Email: simon.halliday [at] strath.ac.uk.

pp.387-391

One of the most striking features of the human rights field in recent times has been the extent to which human rights have become entrenched in domestic legal systems. From a UK perspective (from where I write) the Canadians seem ahead of the game. In 1961, against an historical background of endemic racial discrimination in Canada, the Ontario Human Rights Commission (‘OHRC) – the oldest such Commission in Canada – was established as an anti-discrimination commission. All anti-discrimination statutes were consolidated into a Human Rights Code to be implemented by the OHRC. Ten years later, age and sex discrimination were added to race and religion as prohibited grounds under the Human Rights Code. Discrimination on grounds of mental and physical handicap were added later, as were the grounds of pardoned criminal record (in relation to employment), and receipt of social assistance (in relation to housing), as well as race and gender harassment. The OHRC, still in operation, may hear complaints about rights infringements from individuals, may initiate investigations itself, and has an educational, research and policy development mandate. The OHRC, then, represents a good example of an increasingly popular and significant feature of our constitutional landscapes: human rights commissions (albeit one focused largely on freedom from discrimination) (also see Banakar 2003; 1998). The operations of the OHRC are the focus of this new and stimulating book by Rosanna Langer.

Langer begins her book with a quotation from Hon. James Chalmers McRuer, a former Chief Justice of the High Court of Ontario: “The fundamental protection of the rights of the individual is not so much in the substantive law as in the procedure by which it is administered.”

This sets up the predominant focus of her book which is an empirical examination of human rights protection. It also signals from the outset that Langer combines a Lipskyan interest in street-level bureaucracy with a socio-legal concern with (as it was once more frequently called) the ‘law in action.’ Langer’s interests lie in exploring and comparing lay comprehensions of human rights and the routine business of the OHRC’s implementation of the rights protections contained in the Human Rights Code. Through documentary analysis and interviews with OHRC staff, lawyers and complainants she describes citizens’ perceptions of human rights, the aims and ideologies of lawyers attempting to further the interests of clients who claim rights infringements, and the [*388] bureaucratic transformation of complaints into human rights ‘cases.’

Langer deftly describes the familiar stresses of public sector organisations which must try to balance their specific public service ideals with the demands of bureaucratic efficiency. For example, she paints a vivid picture of the difficulties faced by the OHRC’s front line staff. They receive 30 - 35 calls per day from complainants and so are required to keep the average telephone call within a 10-minute target duration. As she notes,

[w]hile it is difficult to say how much this differs from other work where government employees must deal with those expressing a complaint in a high volume environment, this volume is compounded by the sense that human rights enjoy or ought to enjoy pre-eminent importance. (p.41)

This point connects to an important theme of the book: the disjunction between complainant’s aspirations concerning human rights protections and the social reality of human rights as administered by the OHRC. Langer found that commonsense or lay understandings of human rights were considerably broader in scope than the specific prohibited grounds of discrimination and the social settings falling within the Human Rights Code’s ambit. Frontline staff, then, in addition to performing a standard gate-keeping function, also routinely had to take on the role of managing the expectations of complainants (for a similar analysis in a very different policy context, see Gilad 2008). Langer speculates that inflated lay aspirations may be traced to the expansive affirmation of human dignity articulated in the case law of the Canadian Charter of Rights and Freedoms. Regardless of whether she is right about this (and the point is not crucial to the book), her observation of the disconnect between lay aspirations and publicly administered human rights provides an excellent and grounded example of the potential disappointments of human rights when they are ‘domesticated’ within ordinary legal systems (see Schmidt and Halliday 2003). As Raine and Walker (2003) have pointed out, human rights can prove (at least to some) to be something of a “damp squib” in actuality.

Importantly, Langer also contrasts the social reality of human rights as administered by the OHRC with the perspectives of human rights advocates. She details the conflictual relationships between complainants’ lawyers/advocates and OHRC personnel. Her point here is that the realisation of human rights ideals plays out differently between these two groups. Definitions of discrimination and strategies for its elimination differ sharply. The professional interests of lawyers in securing for themselves an advocacy and representative role in the pursuit of human rights places them in an often antagonistic relationship with the OHRC. In particular, lawyers and advocates rarely seem to accept that human rights ideals can be met through any compromises required by the demands of managing a bureaucratic caseload within the context of limited resources.

Langer builds on her empirical evidence to explore the question of what is the ‘public interest’ in human rights enforcement and whether, even, it can be articulated. The competing perspectives [*389] of the various groups discussed above present the starting point for this discussion. Ultimately she concludes that the inevitable contestedness of the notion of ‘the public interest’ suggests that human rights remain a collective concern best represented in a public agency which can synthesize and implement the plurality of interests in policy and practice. She is critical, for example, of an enforcement regime which is limited to the direct adjudication of rights disputes. This, she argues, foregoes the benefits of preliminary “neutral” communicative interactions through the medium of the OHRC which open up the possibility of “contextual problem solving” (p.137). Following Merry (1990), she sees the adjudicative system as being potentially quite disempowering for users. She also suggests that it offers a narrower range of remedies, none of which necessarily engage the public interest. In many senses her book can be read as a defence of human rights commissions.

In assessing DEFINING RIGHTS AND WRONGS, let me state clearly that I enjoyed this book and think it makes an important contribution to knowledge. I do have a few criticisms to make, but I should stress that they are not too important. They can be dealt with fairly quickly. First, at times Langer overplays the gap in the literature which she seeks to fill. For example she claims that “in legal research little attention has been paid to the public administration of statutorily recognised rights” (p.xi); that “in legal research, there is little, if any, examination of the organizational stresses faced by administrative agents whose mandate is premised on public access” (p.41); and that “relatively few studies have looked empirically at the process of the construction of legal meaning by professionals and others” (p.47). Perhaps Langer has a doctrinal legal audience in mind. But these statements certainly appear surprising to a socio-legal reader and are by no means required to shore up the value of the book which, in my view, already stands on its own two feet.

Second, Langer could perhaps have been slightly more cautious in assessing the weight of her empirical data. Her interview data were gleaned from ten lawyers, nine OHRC staff and six complainants. It is a small study, in other words. This is not to diminish the book. But there is no harm in recognising the limitations of a narrow empirical base. She describes her account of the enforcement of human rights law as “highly nuanced” (p.xii). Her analysis is certainly rich, theoretically informed and unquestionably worthy of our attention. But in terms of an empirical analysis, this is possibly stretching things a little. There are some places in the text where a keener appreciation of the limited data could have offered a different shade on the analysis. For example, she contrasts her findings about the motivations of complainants in using human rights law with that of Bumiller (1987), another excellent book based on a narrow empirical base. Contrary to Bumiller’s thesis about the reluctance of those discriminated against to be deemed victims, Langer found that individuals sought legal resolutions to gain control over situations. The better truth may be, of course, that there is variety in how people approach and understand law around various issues (see, e.g., Ewick and Silbey 1998). [*390]

Overwhelmingly however, and notwithstanding the above points, I recommend this book. It is a short book (138 pages of principal text), but one which punches beyond its weight. In particular, Langer makes a very significant contribution in offering a bridge between the socio-legal literature on human rights and the public administration / administrative justice literature. Her discussion of the elusive nature of ‘the public interest’ in human rights enforcement is reminiscent (to this reviewer at least) of the literature around the inevitably contested nature of the notion of ‘administrative justice’ (see, e.g., Kagan 1978; Mashaw 1983; Adler 1998). She firmly grounds the debate about human rights and their domestic enforcement in her analysis of the empirical data and the social reality of public administration. Like Mashaw (1983), she asks, in relation to human rights, the difficult question of how to find the good within the constraints of the possible. This is an important question for human rights scholarship, particularly if her target audience is, indeed, the legal academy. Her book is an admirable and pithy contribution which offers much to those interested in human rights, discrimination, public administration and administrative justice.

REFERENCES:
Adler, Michael. 1998. ‘A Socio-Legal Approach to Administrative Justice.’ 25 LAW & POLICY 323-352.

Banakar, Reza. 1998. THE DOORKEEPERS OF THE LAW: A SOCIO-LEGAL STUDY OF ETHNIC DISCRIMINATION IN SWEDEN. Aldershot: Dartmouth Publishing.

Banakar, Reza. 2003. ‘When Do Rights Matter? A Case Study of the Right to Equal Treatment in Sweden’ in Simon Halliday and Patrick Schmidt (eds). HUMAN RIGHTS BROUGHT HOME: SOCIO-LEGAL PERSPECTIVES ON HUMAN RIGHTS IN THE NATIONAL CONTEXT. Oxford: Hart Publishing.

Bumiller, Kristin. 1987. THE CIVIL RIGHTS SOCIETY: THE SOCIAL CONSTRUCTION OF VICTIMS. Baltimore: Johns Hopkins University Press.

Ewick, Patricia, and Susan S. Silbey. 1998. THE COMMONPLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago: University of Chicago Press.

Gilad, Sharon. 2008. ‘Accountability of Expectations Management? The Role of the Ombudsman in Financial Services’ 30 LAW & POLICY 227-253.

Kagan, Robert A. 1978. REGULATORY JUSTICE: IMPLEMENTING A WAGE PRICE FREEZE. New York: Russell Sage Foundation.

Mashaw, Jerry L. 1983. BUREAUCRATIC JUSTICE MANAGING SOCIAL SECURITY DISABILITY CLAIMS. New Haven: Yale University Press.

Merry, Sally Engle. 1990. GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING-CLASS AMERICANS. Chicago: University of Chicago Press. [*391]

Raine, John, and Clive Walker. 2003. ‘Implementing the Human Rights Act into the Courts in England and Wales: Culture Shift of Damp Squib?’ in Simon Halliday and Patrick Schmidt (eds). HUMAN RIGHTS BROUGHT HOME: SOCIO-LEGAL PERSPECTIVES ON HUMAN RIGHTS IN THE NATIONAL CONTEXT. Oxford: Hart Publishing.

Schmidt, Patrick, and Simon Halliday. 2003. ‘Introduction’ in Simon Halliday and Patrick Schmidt (eds). HUMAN RIGHTS BROUGHT HOME: SOCIO-LEGAL PERSPECTIVES ON HUMAN RIGHTS IN THE NATIONAL CONTEXT. Oxford: Hart Publishing.

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© Copyright 2008 by the author, Simon Halliday.

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HARMONIZING LAW IN AN ERA OF GLOBALIZATION: CONVERGENCE, DIVERGENCE, AND RESISTANCE

by Larry Catá Backer (ed). Durham N.C.: Carolina Academic Press, 2007. 394pp. Hardback. $50.00. ISBN: 9780890895856.

Reviewed by Dr. Carla Thorson, World Affairs Council of Northern California. Email: cthorson [at] wacsf.org.

pp.385-386

Convergence, divergence and resistance – these are the most important ways in which domestic, international, public and private legal systems interact with each other, according the Larry Catá Backer and his colleagues who contributed to this volume. A dozen scholars present an overview of legal harmonization in an era of globalization by looking at horizontal and vertical relationships between and among political institutions, and the interaction between international legal instruments and nation-states, private entities, and individuals.

The theoretical framework for understanding legal harmonization – in other words, the nature of communication, accommodation, amalgamation or resistance among legal systems – is outlined by Larry Catá Backer. Key to understanding is the point that harmonization is something quite different from globalization. Backer points out that, while harmonization is sometimes used as a synonym for globalization, in his view and those of the contributors, harmonization is really more a method rather than simply a normative basis for globalization itself. If the objective is globalization, then harmonization is a means to this substantive end. It is not always a smooth road or straight path however. While globalization can produce powerful incentives toward harmonizing law, either voluntarily or coercively, it can also induce resistance or divergence in the law. The essays in this volume illustrate the ways in which legal systems respond to these sometimes disparate pressures.

The volume can be divided into six parts. Part I provides the general theoretical framework discussed above. What follows are essays arranged in broad thematic sections that focus on different aspects of harmonization. Part II looks at global human rights regimes. Jo M. Pascualucci addresses both incentives and impediments to harmonizing individual rights across legal systems. Emily R. Atwood focuses on the South African Truth and Reconciliation Commission and the International Criminal Court, exploring the relationship between national sovereignty and international legal norms.

Part III considers federal and quasi-federal systems. Melissa L. Tatum analyzes the difficulties of vertical harmonization among the three distinct governmental and court systems in the United States – federal, state, and tribal. Takis Tridimas looks at issues of horizontal harmonization by considering directives and framework legislation in the European Union. [*386]

Part IV focuses on public and private international legal regimes exploring convergence and divergence among roughly co-equal governance systems. Welber Barral considers transnational dispute resolution among the members of Mercosur – Brazil, Argentina, Uruguay and Paraguay. Seema Lal looks at the intersection between cultural nationalism and the desire of some nation states to protect cultural property with cultural internationalism and international conventions on maintenance and ownership of cultural property. Bruce Carolan looks at a little known area of antitrust law in the European Union noting a convergence of national laws around a particular antitrust norm. The final essay in this area by Beth Farmer looks at the shape of legal enforcement of global economic competition between the United States and the European Union.

Communication and the boundaries of harmonization is the focus of Part V. Vivian Grosswald Curran looks at how difficult integrating law can be, even among legal systems that share the same basic set of norms. She takes examples from China, France and Germany. While Gunnar Beck looks at these difficulties even within systems that might embrace integration. Beck looks at Common Law countries and the ebb and flow of development in European Community law.

Looking beyond the boundaries of harmonization, the sixth and final set of essays considers divergence and resistance to globalization. In probably the most interesting contribution in the volume, Christopher Stuart considers Islam’s relationship to globalization, looking at how Muslim and non-Muslim states interact with one another while trying not to be seen as losing fundamental aspects of their national or religious character. Because resistance to secular systems of norm-making is so great, and convergence or integration is impossible, but yet some connections are necessary in an era of globalization, Stuart’s analysis illustrates the complexities of legal harmonization in a way that the others cannot. Larry Catá Backer offers a counterpoint, by looking at the most positive example of the interrelationship between globalization and harmonization – the European Union.

Most of the contributors to this volume are lawyers which makes this material particularly dense and perhaps difficult to follow for many political scientists or their students. If digested in limited quantity, some of the individual essays may be profitably used to illustrate and discuss harmonization among both legal systems and political systems. In particular, the essays on South Africa, on Mercosur, and on Islam raise some distinct challenges and clear issues for scholars and students of globalization, both from a legal and a political science perspective.

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© Copyright 2008 by the author, Carla Thorson.

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LEGAL REPSONSES TO TRAFFICKING IN WOMEN FOR SEXUAL EXPLOITATION IN THE EUROPEAN UNION

by Heli Askola. Portland OR: Hart Publishing, 2007. 238pp. Hardcover. $70.00/£35.00. ISBN: 9781841136509.

Reviewed by Andrew Kowalsky, Osgoode Hall Law School of York University. Email: AndrijKowalsky [at] osgoode.yorku.ca.

pp.381-384

The Hanseatic City of Hamburg, Germany, considered a Northern Venice, also doubles as Europe’s largest red light district. During a recent trip, this dyad exposed itself to me. Lodged at the epicentre of the Reeperbahn the cross street Grosse Freiheit (Great Freedom) juts into the “the mile of sin” enticing passer-byes with a neon haze circulating from its bars, clubs, theatres, and bordellos. Prostitution is legal in Germany, but the brunt of the commercialized sexual freedom symbolized by the Grosse Freiheit falls squarely on the shoulders of sex workers, some of which are trafficked into the trade.

The 2006 FIFA World Cup of Soccer, hosted by Hamburg and eleven other German cities, stoked international concern that traffickers mobilized an estimated 40,000 women for prostitution. Evidence suggests that as no spike in trafficking in women was attributed to the World Cup, preventative and educative measures launched by governments and NGOs may account this, though further research of large international events is required to test the correlation (Tavella 2007). Creating effective anti-trafficking campaigns, laws and policies that prevent and curb trafficking in women is one of the most pressing contemporary concerns for European Union (EU) legislatures. Rightly so, an estimated one hundred thousand of the suspected six to eight hundred thousand cases of human trafficking worldwide annually occur within Europe (European Parliament, 2006).

The legal and policy aspects surrounding the EU’s approach to human trafficking for sexual exploitation is the subject of Heli Askola’s recent publication, LEGAL RESPONSES TO TRAFFICKING IN WOMEN FOR SEXUAL EXPLOITATION IN THE EUROPEAN UNION (LEGAL RESPONSES). LEGAL RESPONSES is an adapted version of Askola’s dissertation, submitted to the European University Institute, Florence in fulfilment of a PhD on European Law. Although a longstanding clarion call exists for more studies in law that are empirical (Consultative Group on Research and Education in Law 1983), the complex subject of human trafficking lends itself well to an extended comparative analysis and critique of European laws. Askola’s work, however, is not a treatise directing a comprehensive approach for tackling the trafficking of women for sexual exploitation, nor does it explore outcomes of human trafficking for purposes other than prostitution.

The purpose behind Askola’s work, “seeks above all to create a framework of analysis in which the interconnections [*382] between the push for a more ‘comprehensive’ approach and the role of the European Union can be broadly conceived” (p.1). Three exploratory questions are posed to ground the study: 1) How is trafficking in women for sexual exploitation conceptualized in the Member States and in the EU setting? 2) What is the role of the European Union in the relevant policy spheres regarding anti-trafficking and its relationship with the Member States’ policy convergence/divergence? 3) What implications do the intersections of these areas and continuing European integration have for the possibilities of formulating a more comprehensive approach to trafficking in the European Union? (pp.8-9) Concomitant discussion adopts a critical feminist perspective, and sources official and unofficial reports from governments, international organizations, research bodies, and NGOs along with European and International laws, in addition to relevant jurisprudence. Against the backdrop of increasing European integration, a comparative legal examination using the themes of free movement, external migration, criminal justice and human rights is undertaken to assess the diverging anti-trafficking platforms of the Netherlands, Sweden, and Italy. This exploration of subject nations’ anti-trafficking courses of action permits Askola’s evaluation of current policies, invites conjecture if responses are harmonizing European law, and invokes scrutiny into whether a more comprehensive continental approach to trafficking is necessary.

LEGAL RESPONSES proposes that blinkered policy frameworks frustrate effective solutions. For example, precisely because human trafficking is a human rights abuse, it creates an onus under international legal norms for states to afford trafficked persons a right to seek reparations from traffickers and help in initiating legal suits. However, this response calls for an individualistic, private rights solution to a much greater social phenomenon that overlooks the broader, systemic factors that condition trafficking. Public inspired forums of action, such as migration laws, are suggested not only to give traffickers the tools with which to control their victims but also contribute to exposing women to the risk of trafficking (p.96). According to Askola, a law and order approach is also misguided: “In short, trafficking is a structural problem, and where it is entrenched no amount of criminal enforcement can ever do more than catch a few of the perpetrators, expel (or ‘save’) some of the victims and confiscate a minimal percentage of the profits” (p.119). Seemingly, then, legal solutions, in and of themselves, are inefficient in halting human trafficking.

Or are they? In November 2000, the United Nations General Assembly adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol). The Trafficking Protocol supplements the first, legally binding United Nations instrument directed at organized crime, the United Nations Convention Against Transnational Organized Crime, as a corollary treaty addressing the international trade in human beings. The Trafficking Protocol equips national lawmakers with a policy and legislative platform to prevent human trafficking, protect victims and punish offenders. It legislates victim protection and assistance measures for persons of [*383] human trafficking, albeit these measures suggest a minimum standard of care and are mainly discretionary (Trafficking Protocol, Art. 2, para. 2). For good measure, State Parties must provide mandatory procedural requirements and basic safeguards, such as protecting the privacy of victims (Trafficking Protocol, Art. 6, para. 1) and endeavouring to provide for the physical safety of trafficked persons while in their jurisdiction (Trafficking Protocol, Art. 6, para. 5). Signatories are also required to ensure that measures exist for an opportunity to seek compensation for damages suffered by victims (Trafficking Protocol Art. 6, para. 6).

The proliferation of human trafficking is provoking tough questions about the Trafficking Protocol even though ratifying State Parties are implementing various crime control measures. That LEGAL RESPONSES does not canvass subject EU countries implementing the Trafficking Protocol protection measures leaves the extent of these measures unclear, though the study suggests that most Member States have delayed ratifying the Trafficking Protocol. Such analysis would become all the more welcome given that an alternate anti-trafficking framework considered, the EU Council Framework Decision on Combating Human Trafficking is law that, “omits practically all of the UN Protocol’s (optional) provision on prevention of trafficking and the protection of victims of trafficking” (p.125). At minimum, an effectual criminal law approach imbricates prosecution with protection and assistance measures sensitive to victim needs (Anti-Slavery International 2002).

Of the bourgeoning literature on human trafficking, LEGAL RESPONSES deserves attention as the work takes a more holistic approach to trafficking in the EU than currently exists. It reads: “Any ‘comprehensive’ approach is, therefore, one that tries to advance ideals of global justice, including gender equality, narrowing the gap between the rich and the poor (as utopian as these ideals may seem), while at the same time matching these goals with those elements of current, planned and hypothesised anti-trafficking efforts that can be judged helpful or which, at they very least, do not make things worse, as further criminalisation of migrants would do” (p.162). As is the case with prescriptive recommendations, whether the multi-lateral political and legal will exists to enact change remains to be seen, given that this entails appraising how EU government policies contribute as much as prevent trafficking.

As studies of human trafficking increase, so should the quality of research, which LEGAL RESPONSES demonstrates through a reasoned policy critique and response that broadly diagnoses trafficking. A well-research and written book attracts its own audience, but those who would best benefit from reading LEGAL RESPONSES, are comparative, human rights, socio-legal and EU law scholars, feminist theorists, lawyers and policy makers concerned with human trafficking, as well as NGO practitioners. Doctoral students in various disciplines interested in studying the mechanics, argument, essence and culmination of a quality dissertation should also take note of LEGAL RESPONSES. Much work is still required in effectively curbing human trafficking; LEGAL RESPONSES is a [*384] thoughtful step in the right policy direction.

REFERENCES:
Anti-Slavery International. 2002. HUMAN TRAFFIC, HUMAN RIGHTS: REDEFINING VICTIM PROTECTION. Horsham, UK: The Printed Word.

Consultative Group on Research and Education in Law. 1983. LAW AND LEARNING: REPORT TO THE SOCIAL SCIENCES AND HUMANITIES RESEARCH COUNCIL OF CANADA BY THE CONSULTATIVE GROUP ON RESEARCH AND EDUCATION IN LAW. Ottawa: SSRHC.

European Parliament. 2007. Press Brief: Strategies to Prevent Trafficking in Women and Children. Retrieved March 25, 2008, from: http://www.europarl.europa.eu/sides/getDoc.do?language=EN&type=IM-PRESS&reference=20060113IPR04274

EU Council. 2002. Framework Decision on Combating Human Trafficking. 2002/629/HJA, [2002] OJ L 203/1.

Global Alliance Against Traffic in Women, Foundation Against Trafficking in Women, and International Human Rights Law Group. 2003. “Human Rights Standards for the Treatment of Trafficked Persons.” CANADIAN WOMAN STUDIES, 22:3/4, 115.

Tavella, Anne Marie. 2007. “Sex Trafficking and the 2006 World Cup in Germany: Concerns, Actions and Implications for Future International Sporting Events.” NORTHWESTERN UNIVERSITY JOURNAL OF INTERNATIONAL HUMAN RIGHTS, 6:1, 196-217, retrieved March 25, 2008 from: http://www.law.northwestern.edu/journalsjihr/v6/n1/8

United Nations. 2000. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing United Nations Convention Against Transnational Organized Crime, A/55/383, Annex II.

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© Copyright 2008 by the author, Andrew Kowalsky.

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A Reply to Professor Whitley Kaufman’s review of THE CULTURE OF VENGEANCE AND THE FATE OF AMERICAN JUSTICE

by Terry Kenneth Aladjem. New York: Cambridge University Press, 266pp. Cloth $85.00/ £45.00. 9780521886246. Paper $26.99/£16.99. ISBN: 9780521713863.

Author’s Reply: Terry Kenneth Aladjem, Harvard University. Email: aladjem [at] fas.harvard.edu.

pp.376-380

(Editor’s note: The following is a comment on a recently published review. LPBR welcomes such comments and invites submissions to the editor.)

Ordinarily it is wise to let reviews stand, to take one’s lumps and hope that one’s work will endure on its merits. But when a reviewer miscasts the argument, says things are missing from the book that are in fact central to its argument, and calls for the inclusion of arguments that are already there, it is important to set the record straight.

Whitley Kaufman, my reviewer for LPBR [Vol. 18 No. 4 (April 2008) pp.272-275], does credit the scope of my book as being “remarkable.’ He correctly identifies the project as one that traces a vengeful turn in the public understanding of American justice to a failure of the liberal tradition to resolve the matter of vengeance or to fully address its implications. I regard the return of the death penalty in the ’70s, debates over the question of what is “cruel and unusual punishment,” elements in the victims’ movement, the War on Drugs, mandatory sentencing, the fascination with crime and forensic detail in shows like COPS and CSI on TV, an oddly punitive Christian right, certain reactions to the attacks of 9/11 and the policies of the Bush administration thereafter, to be evidence of that phenomenon. I argue that the liberal tradition had set the stage for this by supposing that the impulse to vengeance can be set aside or be displaced by reason, or left behind in a state of nature (Locke and many others). I argue that the policies and procedures of law and justice that are built on these foundations cannot address the “rage in grief” (Rosaldo) that so grips our society. I suggest that those impulses have festered where they have been excluded and have reasserted themselves in calls for moral certainty and decisive punishment. On one register this helps to account for the return to religion of many Americans. On another, it explains the dangerous, pseudo-religious demands upon our system of justice and our military to address the problem of “evil.” I argue that these demands are intrinsically authoritarian. They tear at the fabric of our pluralist democracy and threaten to displace it with a vengeful, monolithic sort of justice.

The reviewer seems to accept much of this diagnosis, but he rejects my claim that it has roots in the liberal tradition or that the impulses in question are authoritarian in nature. He rejects these claims without examining them or addressing the evidence that I have marshaled to make the case. There is no mention in his review of the way in [*377] which I link classical mythology on the transformation of vengeance into justice to the liberal tradition, or the faulty attempts in liberal philosophy from Kant to Bentham, and Hegel to Mill (the latter of which I discuss at length in Chapter 1) to purge punitive thinking of that impulse. He brushes aside without addressing my carefully constructed argument that vengeance is an irrational attempt to reverse the effect of an injury on life and time, a self-assertion that is inclined to self-deception, which is in that sense “authoritarian.” Though he is himself a philosopher, he makes no attempt to address my central philosophical claim that this impulse cannot be eradicated from the many liberal attempts to justify the infliction of pain, or to apply pain in the right “measure” as punishment (p.15 and elsewhere).

Because I treat this as a problem that is endemic to liberal theories of punishment, and as a dilemma for democracy, I turn away from the former in the end, and look to the latter for answers. Here again, the reviewer misses my point. He suggests that I should supply a “deeper philosophical framework” with which to address this problem, when it is manifestly clear (in my argument at least) that it is not philosophy but the logic of democratic necessity that will best guide us. Here I have taken a neo-pragmatist turn that seems to elude the reviewer. In observing that there can be no such framework in a pluralist democracy, I feel compelled to return to examine the logic of our founding democratic thought instead. I return to the imperatives of that system in managing vengeance – to the origins of its anti-authoritarianism, to its need for cautious legal procedure and punitive restraint – to fashion a corrective vision. In parsing liberal democracy in this way, and turning to the later, I do not at all suggest that there is “moral agreement” as to what it might be (a view that the reviewer ascribes to me), but that it is a highly contested, “complex” tradition, and that it must be reexamined in that light to address the matter at hand (see my Author’s note xix and Chapter 4).

In the course of this discussion, following Minow, I expressly acknowledge the vengefulness of democracy itself in the initial stages of revolution, and the importance that this has in establishing the “‘self-respect’ of a sovereign people” (p.146). Yet I also notice the imperative for a democracy to move deliberately beyond that vengeance once it is established, to privilege an awareness of its own fallibility, and its interest in truth in the pursuit of democratic justice. Throughout there is a sense that vengeance is with us, but must be contained in the interest of democracy.

It seems odd in light of all this that the reviewer suggests that I do not sufficiently appreciate the claim “accepted among moral philosophers that retributive justice is but a euphemism for the sentiment of revenge.” I respectfully disagree. Not only do I appreciate that claim; but a substantial part of my second chapter is devoted to showing how it animates a great deal of American moral philosophy and thinking about punishment. Having addressed earlier, continental theories of retributivism and utilitarianism in my first chapter to show how they still harbor vengeful sentiment, I suggest that a number of American conservatives and [*378] progressives – from Brubaker to Murphy, Soloman, Tunick and Oseil – have abandoned all pretense to exclude it.

In this vein too, the reviewer accuses my book of failing to provide or appreciate a positive model of vengeance, or “personal vindication, so long as it is measured, proportionate and reflective (Susan Jacoby, Jeffrey Murphy, Peter French).” While I do not engage those three on this point (Jacoby and Murphy are mentioned in other connections) I give ample airtime to retributive and utilitarian claims to be “measured, proportionate and reflective” in ways that still bear the mark of vengeance, and to the related Aristotelian claim that animates Stanley Brubaker’s call for deserved punishment (p.23). While the reviewer suggests that I seem “unaware” of Aristotle’s Golden Mean in seeking proportionate punishment (and insofar as this is a matter of personal virtue), I prefer to entertain Kant’s “needle on a scale of justice” (THE METAPHYSICS OF MORALS, my p.109) in that connection, and to pair it with Kafka’s parody of the machinery of punishment (p.111). Indeed there are so many references to claims for “proportion,” “balance” and “equilibrium” in punishment in the book that I could not fit them in the index. There are also frequent references to honor and “systems of honor” throughout the book, which are marked by restraint and “driven by a dynamic of duty, pride and collective dignity” (p.33).

Most disturbingly in this connection, the reviewer accuses me of failing even to “mention” Dan Kahan or to entertain his argument about the importance of feeling “disgust” at behavior that is worthy of punishment. In fact, two works of Kahan’s are cited in my bibliography, and there are three page references to his name spanning pages 54-92 in my index. I would look foolish indeed if I had failed to address Kahan’s important argument, and “disgust” as he and others would indulge it is the central theme of my second chapter. It is on the basis of this mistaken reading, I might add, that the reviewer suggests that I give an “extreme and one-sided portrayal of revenge,” and a “straw-man version” of it. This, he adds, because in the case of Achilles addressing Hektor (pp.113-114) and at moments for Hamlet reflecting on Claudius (p.143) I point to the tendency toward excess in revenge. The reviewer then offers Hamlet’s “doubts” as evidence that there can be a more equivocal or thoughtful revenge. But is this not, rather, the equivocation of a thoughtful man struggling with those very excessive tendencies in revenge?

Beyond this, I provide numerous examples of vengeful expression with due respect for the thoughts and feeling behind them. In discussing an American idiom in the usage of the word vengeance – in which I perceive nostalgia for a past justice that is at once anachronistic – I offer the words of a father grieving the loss of his murdered daughter (p.68). I suggest that every American can understand their meaning. I open my third chapter with the example of “The Politician’s Wife,” the fictional story of a woman who exacts an extraordinary (and justifiable) revenge upon her husband. My reading of Oedipus in that chapter is hardly insensitive to the plight of the man who is ‘seeking after truth’ in the interest of a certain vengeance, thought I see his [*379] quest as one that is blinded by that very impulse in the end.

I submit, then, that where the reviewer suggests that I fail to give a hearing to a more positive idea of revenge, he has missed the point entirely – I do that throughout the book – it just does not win the day. It is precisely my caution on these matters that has moved Austin Sarat to remark: “THE CULTURE OF VENGEANCE gives vengeance a sympathetic and nuanced treatment. This makes Aladjem’s critique and rejection of it all the more powerful. From start to finish this is a masterful book, rich in insightful analysis, and filled with originality.”(Cambridge University Press website) The reviewer (and Sarat) have perceived correctly that I do ultimately ‘reject’ vengeance (though I do not think that we will ever be free of it), just as I disparage attempts to claim that it can be “measured, proportionate and reflective.” But I certainly do not ignore such arguments as the reviewer maintains.

Presuming again upon alleged absences in my book, the reviewer suggests that I ignore the question: “why has America taken this vindictive turn, unlike other democracies?” But that is the point of my entire second chapter. While the work is not comparative and I do not address the case of Canada or Australia, as the reviewer would like, I argue that a unique confluence of forces distinguishes the American experience. Our “justice of equity” in matters of race and gender has incurred resentment and provokes calls for a “justice of retribution.” A strong secularism arising from our particular constitutional history and emphasis on the separation of church and state has created an imperative within our culture to reassert morality. Religion no longer functions (in this secular context) to address such things as pain, cruelty and death in convincing ways, and there is a need, in Weber’s phrase, for a greater “theodicy of misfortune” (p.35). To meet that need, we have produced a secular notion of evil that casts our enemies abroad as “evil people,” and our villains at home as consciously malicious predators like the sociopath, who are deserving of vengeful punishment.

On the death penalty, which is emblematic of all this, the reviewer grants that I have made a reasonable claim that we, or our democratic state should ‘recognize its fallibility’ in weighing and assessing such punishment (Chapter 4). Yet he brushes aside the numerous instances and Supreme Court cases that I cite to show that it presently does not. He accuses the book of failing to address one ‘classic’ argument for the death penalty that he seems to favor: that a sentence of death is “equally irrevocable” to time in prison. Perhaps I have listened to too may incarcerated persons speak on this matter to find that argument very convincing. In any case, I do carefully treat J.S. Mill’s more challenging claim that prison, or “immuring in a living tomb” is worse than the “short pang of death” at an execution (p.17). I engage it as one instance in which parochial concerns and prejudice cloud the utilitarian calculus and invite vengeful sentiment back in. Despite this careful treatment, the reviewer considers my call for the end of the death penalty to be “surprisingly bland,” like my wish that prosecutors pursue the truth instead of more convictions, and that the accused be heard and understood beyond what is [*380] currently allowed in criminal proceedings – which would transform the criminal justice system. He does not think this has anything to do with the imperatives of democracy, or that returning to them to challenge our present system of criminal justice is very interesting. I suppose he is entitled to that opinion.

Beneath the invective and systematic misreading, the position that the reviewer seems to want to defend, is that vengeance has some fine qualities, that it is really OK if it guides our punitive and foreign policies, that these are not thereby made more authoritarian, that this is not a problem for our democracy or anybody else’s, and that the liberal tradition that produced that democracy has nothing much to do with it. From this vantage point he has dismissed but has not seriously engaged my argument. I can only hope that those who read and think about my book carefully will find that argument to be more persuasive.


For other reader’s remarks see the Cambridge University Press website: https://www.cambridge.org/us/catalogue/catalogue.asp?isbn=9780521713863

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© Copyright 2008 by the author, Terry Kenneth Aladjem.

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Introduction

April 2008 Special Edition: Legal Fiction Reviews

pp. 288-290

Editor’s Note

This marks the first special issue on Legal Fiction from THE LAW AND POLITICS BOOK REVIEW. Thanks to Mary Atwell and Jack Call (both at Radford University), who commissioned reviews and edited this special issue. This was a major undertaking, and Mary and Jack did a superb job of it. Finally, special thanks go to our 22 reviewers, whose reviews represent a most valuable resource to our larger community.

INTRODUCTION

Often during the fifteen years we have been colleagues in the criminal justice department at Radford University, we have talked about including works of fiction in our classes. Each of us has favorites. Jack is partial to RUMPOLE OF THE BAILEY and SNOW FALLING ON CEDARS. Mary often uses TO KILL A MOCKINGBIRD and A LESSON BEFORE DYING. We agreed it would be interesting to find out how others who teach courses in political science, criminal justice, or law use novels in their teaching.

We approached Wayne McIntosh to propose a special issue of the LAW AND POLITICS BOOK REVIEW devoted to fiction. In it, contributors would discuss specifically their interest and experience with novels as sources for student learning. In October we sent out a request for reviewers. Although we provided a list of books that seemed appropriate, we also asked for suggestions from potential contributors who might discuss novels they had used effectively. The response was immediate and enthusiastic. Professors from a variety of universities and disciplines either volunteered to consider a book from our list or suggested a work they and their students found particularly worthwhile. A list of all the proposed books, whether reviewed or not, is included below.

Thanks to our excellent contributors, the special issue includes twenty-two reviews of American, British, and European novels from the 19th, 20th, and 21st centuries.

It has been a pleasure to serve as guest editors. We hope readers of the LPBR will find this special issue interesting and informative.

Book, Author
1984, George Orwell
Advise and Consent, Allen Drury
All the King’s Men, Robert Penn Warren
Always Outnumbered, Always Outgunned, Walter Mosely
An American Tragedy, Theodore Dreiser
At End of Day, George V. Higgins
Billy Budd, Herman Melville
Bleak House, Charles Dickens
Bodega’s Dream, Ernesto Quinonez
Bonfire of the Vanities, Tom Wolfe
Brave New World, Aldous Huxley
The Caine Mutiny, Herman Wouk
Cat’s Cradle, Kurt Vonnegut, Jr.
The Cave, Jose Saramago
The Chamber, John Grisham
A Clockwork Orange, Anthony Burgess
The Constant Gardener, John Le Carre
Crime and Punishment, Fyodor Dostoyevsky
Darkness at Noon, Arthur Koestler
Defending Billy Ryan, George V. Higgins
Dr. Jekyll and Mr. Hyde, Richard Louis Stevenson
Famous All Over Town, Danny Santiago
The Fixer, Bernard Malamud
Giovanni’s Room, James Baldwin
The Good Terrorist, Doris Lessing
The Handmaid’s Tale, Margaret Atwood
Harry Potter and the Order of the Phoenix, J.K. Rowling
A House of Sand and Fog, Andre Dubus
The Human Stain, Philip Roth
I Never Promised You a Rose Garden, Joanne Greenberg
I, Robot, Isaac Asimov
Involuntary Witness, Gianrico Carofiglio
The Jungle, Upton Sinclair
Knock on Any Door, Willard Motley
The Last Hurrah, Edwin O’Connor
A Lesson Before Dying, Ernest Gaines
The Monkeywrench Game, Edward Abbey
The Once and Future King, T.H. White
The Ox-bow Incident, Walter von Tilburg Clark
Paradise, Toni Morrison
The Plague, Albert Camus
Presumed Innocent, Scott Turow
Protect and Defend, Richard North Patterson
Pudd’nhead Wilson, Mark Twain
Render the Body, Marianne Wesson
Rumpole of the Bailey, John Mortimer
Rumpole for the Prosecution, John Mortimer
Saturday, Ian McEwan
Seeing, Jose Saramago
Snow Falling on Cedars, David Guterson
The Stranger, Albert Camus
Love in the Time of Butterflies, Julia Alvarez
A Time to Kill , John Grisham
To Kill a Mockingbird, Harper Lee
The Reader, Bernhard Schlink
The Seven Who Were Hanged, Leonid Andreyev
The Trial, Franz Kafka
The Virginian, Owen Wister
Waiting for the Barbarians, J.M. Coetzee
Your Blues Ain’t Like Mine, Bebe Moore Campbell

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THE BONFIRE OF THE VANITIES

by Tom Wolfe. First published in 1990. New York: Picador, 2008. 552pp. Trade Paperback. $16.00. ISBN: 9780312427573.

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

pp.373-375

A period novel from the headlines of the 1980s, THE BONFIRE OF THE VANITIES overwhelms readers with all the drama, greed, ego, and excess of that decade with characters reminiscent of real life players in New York City. One finds in this Tom Wolfe novel Wall Street crooks, overzealous headline-grabbing prosecutors, ambitious muckraking reporters, and opportunistic preachers. Yet underlying this dramatic farce is a powerful story about race and class in the criminal justice system.

Originally published in 1987, THE BONFIRE OF THE VANITIES tells the story of a hapless Sherman McCoy. A self-described “master of the universe” because of his ability to sell bonds and make millions of dollars, almost effortlessly, he gives a poster child face to the “Greed is good” mantra of the Gordon Gecko Wall Street of the 80s. Sherman has it all. He is a Wall Street bond financier at Pierce and Pierce who lived with his wife and daughter at 816 Park Ave in a 14-room co-op featured in Architectural Digest. He drives a sleek black Mercedes, and of course, he has a girl friend on the side. Her name? Maria Ruskin, a young blonde bombshell from the south, who is married to the elder and quite wealthy Arthur Ruskin. Yet as smart as McCoy affects, he is not sly enough to master the ability to hide his affair from his wife.

The heart of the story unfolds when Sherman picks Maria up from JFK airport, takes a wrong exit into “Fort Apache” Bronx instead of Manhattan, and ventures through the borough that proves to be his heart of darkness. When he confronts a ramp cluttered with debris, he exits the car to clear it, only to find two African-American youths approaching him. Assuming they have designs to rob him, he throws some of the junk at them. Maria, now in the driver seat, backs up, hits one of the youths, and flees with Sherman. As they race away, McCoy speculates on whether they really hit anyone and whether they should report the incident. Maria says no on both counts as they retreat back to the rent-controlled love nest she illegally rents.

McCoy then begins the nervous process of reading though the papers, specifically the fictitious NEW YORK CITY LIGHT, a paper that looks to be a cross of the NEWS and POST, for a report of a hit and run in the Bronx. Soon the paper delivers on his fears as a Jimmy Breslin-like reporter, Peter Fallow, accounts the story of how a Henry Lamb, a high school senior in the Bronx, was unconscious with a coma in a hospital. Henry Lamb’s fate becomes the cause celebre for the BONFIRES. Enter now Reverend Bacon and DA Weiss. [*374]

Reverend Bacon, an African-American preacher with Al Sharpton instincts, is initially investigated for scamming $350,000 destined as seed money for a day care. To take heat off the investigation, he calls on the Bronx DA Weiss, who is facing reelection, to investigate the Lamb incident, calling the foot dragging and initial investigations “Weiss Justice” because the incident involves a Black youth and a Mercedes. Peter Fallow serves up the interests of both Bacon and Weiss when his paper manufactures trumped-up stories about Lamb to sell papers. Lamb, an average student from a poor school in the Bronx, is turned into a martyred honor student destined for college and future greatness.

McCoy’s downfall begins when the police, upon running the partial plate numbers on his car, question him. Sherman’s nervousness and evasiveness clue the police into realizing that they have their man, and they eventually tie him back to Maria, whose accented shouting of his name “Shuhmun” at the accident is recounted by one of the witnesses. From here, McCoy is treated to Weiss wishing to make a spectacle of him, including threatening a Rudy Giuliani-like arresting of him at his workplace and escorting him out shackled in a “perp walk.” Instead, a deal is struck for a private arrest and arraignment, but all that goes afoul as the DA plays the race and class contrasts to the media.

The strength of THE BONFIRES for law classes is its powerful irony in tackling race, class, and privilege in the criminal justice system. McCoy did not hit Lamb, Maria did, but she refuses to cooperate and efforts to tape conversations and introduce them into court raise a host of evidentiary questions that may be of some interest to students. However McCoy’s racism, as manifested in his fear of Black youths in the Bronx, or in jail, is part of what does him in. But more powerfully, race and class play out in numerous ways. Unlike people of color who are falsely accused of crimes they never committed, McCoy’s biggest crime is arrogance, affluence, and stupidity. His wealth and white privilege are used against him. While his attorney originally strikes a deal to get his client through booking and arraignment quickly and quietly, the egos of the media, Weiss, and Bacon make it impossible, and poor Sherman is forced to endure a few hours in jail before – unlike many other defendants – he is able to get and make bail. The scenes where McCoy is arrested, booked, and arraigned thus would be the best reading for a class; not for their literal truth in how most affluent white defendants are treated, but to begin a conversation on how Sherman’s treatment contrasts with the more typical client ensnared in the criminal justice system.

THE BONFIRE OF THE VANITIES is first a great satire of the personalities of the 1980s. It explores themes of greed that, while never out of style, were particularly ripe for skewering in the later 1980s. But the book also offers critiques of criminal justice that raised themes of class and race well before there was an O.J. Simpson trial. While students will find parts of the book engaging, at 550+ pages it is a hefty read given the lessons to be learned. Watching the awful movie version of the book is no substitute since it failed to capture its subtlety. The [*375] recommendation instead is to have students read chapters four, and 22-26, as they best capture the themes most relevant to the study of the criminal justice system.

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© Copyright 2008 by the author, David Schultz.

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ALL THE KING’S MEN

by Robert Penn Warren. Originally published in 1946. San Diego: Harvest Books, 1996. 672pp. Paperback $15.00. ISBN: 9780156004800.

Reviewed by Susan McWilliams, Department of Politics, Pomona College. Email: susan.mcwilliams [at] pomona.edu.

pp.370-372

ALL THE KING’S MEN begins, quite literally, on a straight and narrow path: Highway 58, “with the black line down the center coming at and at you.” Driving down this road, “if you don’t quit staring at that line and you don’t take a few deep breaths and slap yourself hard on the back of the neck you’ll hypnotize yourself” and lose control. You will crash and burn, not because you were distracted from your original goal, but because you were too intent upon it. You were looking too far down the straightaway. Focused on the end of your trip, you neglect to be careful about how you get there.

For students who know Lord Acton’s axiom that “power tends to corrupt” only in its most austere variation – “power corrupts” – Robert Penn Warren’s classic novel can be both a deepening and complicating read. While the conventional wisdom suggests that all politicians are corrupt, and therefore politics is a particularly grim and unsavory business, ALL THE KING’S MEN explores the relationship between political power and corruption on much more multifaceted and unnerving terms.

In those first few sentences, on the dangers that attend traveling a straight and narrow path, Penn Warren suggests that in practice, political corruption does not always arise from selfishness, ignobility, or base greed. Against thinkers dating back to Aristotle, who define corrupt regimes merely as those in which the ruler thinks of private gain rather than public good, ALL THE KING’S MEN suggests that the path to corruption may begin with an opposite, and more noble, impulse. If you focus on the glimmering end of the road with too much intensity, you might lose your grip on the wheel. If you focus on your political ends – even moral and public-spirited ends – with too much intensity, you might lose your grip on the means of getting there. You might lose your grip on yourself.

The very memorable public official at the center of the narrative, Willie Stark, emanates his real-world prototype Louisiana Governor Huey P. Long, Jr. in his unfailing populist commitments and his grand public visions. (Witnesses said that after he was shot, Long’s last words were: “God, don’t let me die. I have too much left to do.”) From his first awkward stump speech on, Stark remains constant in his assertion that all citizens have a right to decent health care. He sets his sights on building a hospital, a majestic and technologically advanced hospital, which will serve all those who need it. Stark amasses and manipulates power not merely for the sake of the power itself, but for that gallant and public-spirited goal. His disturbing transformation, from a temperate and naïve country boy into a hard-drinking and harder-bargaining boss man, happens in the service of his highest ideals, not in the abandonment of them. [*371]

This may in part explain why, even as Stark’s descent into sleaze begins to anguish and even betray those closest to him, most of those same people continue to see him in something of a hallowed light. Unlike his nemesis, Tiny Duffy, Stark does not occupy political office just for his own sake; he is always driven by his vision of public good. So even when he is at his most corrupt, in all conventional ways, there is a core of belief in him that remains noble if not transcendent. After all of his corruption and damage is done, even the people who he hurt the most continue to believe that he was “a great man.”

In teaching ALL THE KING’S MEN, I have made it a habit of asking my students how they responded to the catalytic moment of Stark’s political career, when he has learned that the party officials are running him as a gubernatorial candidate only to split a vote and prevent their enemy’s election. Stark spends a highly liquid evening, weeping and railing at the realization that he is a “decoy.” The next morning, hung over or maybe still drunk, he fumbles his way to the local fairgrounds and gives a raging diatribe in which, much to the party bosses’ chagrin, he tells an enraptured audience of what he has learned. To the people he calls “hicks,” he announces, “That’s what they think we’re for. To fool. Well, this time I’m going to fool somebody.” When I ask my students what they were thinking during this scene, inevitably they say that they were rooting for Stark. They were hoping he would go for the jugular, that he would say whatever he had to say to damage the party bosses as much as they had damaged him. They were hoping that Stark would fight, and they were hoping that Stark would win.

Of course, in rooting for Stark during this scene my students – like anyone else who reads the book – are rooting for the very behaviors and postures that enable and define his corruption. What makes Willie Stark admirable is difficult to extricate from what makes him contemptible. To the extent that Penn Warren gets his readers to root for Willie Stark in such moments, he demonstrates the extent to which certain kinds of political charisma trade on a simmering iniquity. The corrupt man is often a seductive man; what seduces you may well be what corrupts you.

The corruption in this story, accordingly, is not Stark’s alone. Perhaps the more important character in ALL THE KING’S MEN is Jack Burden, the former graduate student and newspaper columnist turned aide to Willie Stark, from whose perspective the novel is written. At no small cost to himself, Burden becomes complicit in some of Stark’s more dangerous plots. One of the most powerful dynamics in the novel is the Burden-Stark relationship, and the question of why a man as smart and pedigreed as Burden would give himself so wholly to Stark, even when it is clear to him that there are massive problems with Stark’s method. The answer has something to do with the fact that Burden, for all his privilege, is deeply alienated. He is rootless. Like so many Americans, Burden feels disconnected, disinherited, disenfranchised. And he finds in Stark a figure of order. Stark offers Burden the connection to a communal vision, and connection and communion are what Burden dearly lacks. Communion and connection on terms that are corrupt may be preferable, we learn, to no communion and connection at all. [*372]

As so many have testified, ALL THE KING’S MEN is a great American political novel – perhaps the greatest. There are many ways to incorporate it into the political science classroom, of which I have indicated only one. But given the conventional cynicism about politicians and politics which dominate so many students’ views, it might be a particularly important one. The common notion that “power corrupts,” that power and corruption are not just friends but equals, leads to a dim view of political life. In comparison, Penn Warren crafts a picture in which political corruption exists and maybe pervades, but in which politics retains – as does Stark – both force and charm.

Interestingly, Penn Warren may give Willie Stark the final word on these questions. From the book’s first pages, Stark seems fond of recounting the 51st psalm, albeit with some poetic license. “Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud,” runs his refrain. “There is always something.” In other words, Stark says, there is no such thing as an uncorrupt person. Willie’s challenge to the maxim that “power corrupts” is the assertion that human life itself is already corrupt. Politics does not do the corrupting. Politics is just one of many human crafts, and it is the humanity rather than the craft that is the trouble. For a democratic citizenry, this teaching may be most disturbing. But it also may be most true.

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© Copyright 2008 by the author, Susan McWilliams.

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CAT’S CRADLE

by Kurt Vonnegut, Jr. New York: Dell Publishing, originally published in 1963. Dell Pulishing, 1998. 304pp. Paper. $14.00. ISBN: 9780385333481.

Reviewed by Stephen McDougal, Department of Political Science/Public Administration, University of Wisconsin-La Crosse. Email: mcdougal.step [at] uwlax.edu.

pp.365-369

Maybe it’s because CAT’S CRADLE (first published in 1963) was one of Kurt Vonnegut’s earlier novels, and I found his later works so much more captivating.

Maybe it’s because so many of those New Left issues, which seemed so vital forty-something years ago, nowadays don’t.

Maybe it’s because I caught the flu over the holiday break, and I ended up re-reading the novel two or three pages at a time, which wasn’t bad since it is presented in 127 chapters of about two pages each.

Maybe it’s because years ago at Carroll College in Wisconsin, I had the privilege of introducing Vonnegut as the college’s annual “big speaker,” and as we visited beforehand, he admitted to me he didn’t really remember much about the novel.

But, for whatever reasons – and combinations of reasons – I found that as a fictional basis for undergraduate classroom exercises in law, courts and society, CAT’S CRADLE is probably pretty much a bust. I couldn’t keep myself from viewing it as something of a period piece, a reflection of the growing angst of the 1960s. The novel says much more about religion than about law. Law is a minor character in the narrative, and it is painted as only bombastic, superficial and ineffectual, yet perhaps (like the explicit depiction of religion) filled with very “useful lies” (ch.4). Aside from the literary merits of, the novel, all these things must be weighed carefully by anyone considering its classroom use.

But first, my story of Vonnegut’s story: Using a first-person narrative style, Vonnegut (calling himself Jonah, although his parents had actually named him John) tells of following a tenuous thread of human relations in pursuit of a book he once wanted to write about the lives of famous and ordinary people in the United States on the day Hiroshima was obliterated by the U.S. Army Air Force. He starts by contacting the children of Nobel Prize physicist Felix Hoenikker, one of the so-called fathers of the atomic bomb, only to learn how utterly dysfunctional Hoenikker’s life truly was. A visit to the family’s hometown fills in the story of Felix, the egomaniacal genius detached from human life both socially and emotionally, and his three alienated children: Frank, the eldest who spent all of his time in a model train shop before disappearing after his father died; Angela, whose life was ruined by being her father’s caretaker after their mother passed many years earlier; and Newt, whose various talents were never recognized by his father, much less acknowledged. No “law”, here, save perhaps a perspective of “moral law” violated in a father’s neglect of his children and his myopic, amoral commitment to professional science. [*366]

Just before his death, Dr. Hoenikker was working on one last project for the U.S. military – a technical means to make the muddy, sloppy ground of a battlefield hard and therefore easier to conduct operations upon. The Nobel laureate’s technical solution was “ice-nine” – a tiny seed of water crystal, wherein the atoms are arranged in a way entirely new on earth, and in a way from which they would form a solid up to 114°F. By tossing a seed of ice-nine into a mud bog, for instance, the seed would “teach” the atoms of the water molecules already there how to stack themselves into near-permanent solidness. The problem would be, of course, that any ordinary water molecule coming into contact with ice-nine would both change into ice-nine and continue the chain reaction by passing on to its neighbor molecules that same ability. From the mud bog to the streams and rivers, to oceans and lakes, to (I’d presume) sinks and toilets, all water would freeze into ice-nine. In short, to release ice-nine into (what we today call) “The Environment” would effectively end life on earth. Does this narrative create scientific issues? Only scientific issues? Or any genuine legal issues at all? Would any of them really matter at the end of Jonah’s story?

When Hoenikker died, his children divided his tiny supply of ice-nine among themselves.

As it happened, Jonah eventually finds Frank through a NEW YORK TIMES advertising supplement. Frank is serving as Minister of Science and Progress in the Republic of San Lorenzo – an island dictatorship somewhere in the middle of the Caribbean. On a plane flight to its capital, Bolivar, Jonah meets the newly appointed U.S. ambassador to San Lorenzo, who happens to have with him the only written history of the island. From the unpublished manuscript, Jonah learns of Bokononism, the dominant – and utterly illegal – religion of San Lorenzo. Practicing any form of Bokononism is punishable by death on The Hook – a giant iron fishhook hung from a crossbeam between two tall poles. The Condemned is impaled through the stomach and left to die. As one admiring American businessman on the plane comments, in terms most U.S. students will grasp as cultural intuition –

“No fines, no probation, no thirty days in jail. It’s the hook. The hook for stealing, for murder, for arson, for treason, for rape, for being a peeping Tom. Break a law – any damn law at all – and it’s the hook. Everybody can understand that, and San Lorenzo is the best-behaved country in the world.” (ch.43)

In Jonah’s tale, needless to say, everyone on San Lorenzo is a devoted Bokononist, “despite” this horrific punishment. In conventional law and society terms, the law of San Lorenzo has no efficacy whatsoever, and only slightly less efficacy than the speed limit signs along any U.S. Interstate. But, in Vonnegut’s world, this is not at all problematic; it is, rather, given – taken-for-granted. The law of the state is implicitly depicted as inherently alien to (some vague New Left-ish notion of) true human community, yet this is not Vonnegut’s theme, nor the outcome of the story.

Also on the plane are Dr. Hoenikker’s other children, traveling to their brother’s wedding, and both are carrying their slivers of ice-nine. (ch.77)

San Lorenzo turns out to be a worthless lump of rock to all but its native [*367] inhabitants. It is the only Caribbean island not fought over by the European colonial powers. Its population descends mostly from a British slave ship that was run aground in 1786 after the cargo successfully mutinied. When the Castle Sugar Corporation showed up in 1916, pursuing profits from the sugar boom during World War I, there was no government. Did there need to be? Vonnegut gives us no hints.

When two shipwrecked sailors – McCabe and Johnson – washed up naked onto the island in 1922 and declared that they were now in charge, no one complained and Castle Sugar quietly left. According to the manuscript, McCabe and Johnson wanted to make San Lorenzo a “true” utopia. So, McCabe overhauled the economy, while Johnson [now, Bokonon] invented a new religion. And, of course, their efforts failed in their eyes. (ch.60)

when it became evident that no governmental or economic reform was going to make the people much less miserable, the religion became the one real instrument of hope. Truth was the enemy of the people, because the truth was so terrible, so Bokonon made it his business to provide the people with better and better lies. (ch.78)

To this end, Bokonon convinced McCabe to make Bokononism illegal in order to make it more effective. Even The Hook was Bokonon’s idea, “something he’d seen in the Chamber of Horrors at Madame Tussaud’s” (ch.78). McCabe cooperated, and while Bokonon went into “cozy hiding,” McCabe organized the unemployed, which was just about everyone, into great Bokonon-hunts. Routinely, Bokonon would be surrounded and helpless, only to escape miraculously until next time, beloved of the people. There’s even an unpublished poem by Bokonon:

So I said good-bye to government,
And I gave my reason:
That a really good religion
Is a form of treason. (ch. 78)

Is this “resistance” as discussed in so much contemporary critical legal scholarship? Or, is it one more example of an elite using law as a form (albeit a unique form, perhaps) of formal law to mask “ultimate” power? Probably, yes on both counts, but I’m not sure Jonah cares.

Jonah arrives on San Lorenzo, and being one of very few U.S. citizens, he gains instant status, which he alone does not take for granted. He weaves his way through the halls of power – such as they are – and ends up being the presumptive new President of San Lorenzo. The current dictator, “Papa” Monzano, is dying, and his designated heir, Frank, doesn’t want the job.

More to the point, everywhere the narrator goes he encounters Bokononism, and everyone he talks to is a devoted Bokononist – Western migrants as much as natives – even as they publicly deny it. The law of the state – such as it is – means nothing! The contradiction is obvious, and so repeated as to only have been intended as an essential narrative characteristic. Even “Papa” Monzano (if made into the supreme symbol of legal positivism) contributes on his death bed; he rejects a conventional clergyman, declaring, “I am a member of the Bokononist faith...Get out, you stinking Christian.” (ch.97) [*368]

In the end, of course, and by the most bazaar circumstances, ice-nine is loosed, and in an instant, the world freezes. Tornadoes of ice-nine particles pummel the world and only a handful of people – including the narrator, of course – survive. Little pellets of ice-nine lay everywhere – which also turns out to perfectly preserve all food stuffs. Plants and animal carcasses, handled carefully and heated to 114°F, become safely edible. But, to touch the ground with one’s finger and then one’s finger to one’s lips is instant death.

In the final chapter – number 127 – the narrator finally meets Bokonon, who is trying to think of the last sentence of his extended Books of Bokonon, the sacred texts of Bokononism, because (as he says), “‘The time for last sentences has come.’...It read:

If I were a younger man, I would write a history of human stupidity; and I would climb to the top of Mount McCabe and lie down on my back with my history for a pillow; and I would take from the ground some of the blue-white poison that makes statues of men; and I would make a statue of myself, lying on my back, grinning horribly, and thumbing my nose at You Know Who.

Somebody cue that little bird!

This makes CAT’S CRADLE a bust in a law-related class? Could easily be! Maybe it’s because CAT’S CRADLE is a postmodern work created long before the term was coined, and certainly long before Vonnegut’s genius at it was fully honed. As a (proto?) postmodern work, of course, the novel carries no pointed theme or modernist plot. Characters are not developed for our benefit; they are just as they are at the narrative moment, with a little personal biography sometimes thrown in to highlight the narrator’s editorial insights.

This postmodern device of the off-hand comment is clearest in Vonnegut’s use of irony, which runs through all levels of his narrative. The text is replete with odd comments and observations which were pithy, controversial criticisms in the early Sixties, before U.S. society started its agonizing journey through Vietnam, Watergate, bungled energy policies, Reaganomics, Clinton scandals, oil wars, etc., etc. etc. But, how many of Vonnegut’s 1963 jokes would be hard to explain? Maybe, you just had to be there? More likely, Vonnegut’s 1960s insights have become the millennial generation’s conventional wisdom.

Todd Davis, a real literary critic, recently wrote that Vonnegut “is more concerned with our response to existence than with the philosophical nature of that existence.” (Davis, 2001, 151) As an ordinary reader of Vonnegut for decades, this seems very plausible to me, a useful insight into the great author’s artistry. But, if my purposes are teaching about law, the novel’s brilliantly segmented narrative and fragmented observations offer only a thin thread of legal commentary, far from anything plausibly argued as the artistic, literary purpose or effect of the novel.

Maybe, then, it’s the difference between the practices of postmodern literature and the practices of undergraduate university education.

Maybe, in my readings and intended use as a classroom device, the “postmodern point” is just clearer now. [*369]

Q: What does the novel mean?
A: Anything the reader makes of it; the meaning will reflect the reader more than the pretended intensions of the author.
Q: What can CAT’S CRADLE teach your students about The Law? Anything that you choose?