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

---

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

Continue Reading...

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.

---

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

Continue Reading...

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.

---

© Copyright 2008 by the author, Simon Halliday.

Continue Reading...

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.

---

© Copyright 2008 by the author, Carla Thorson.

Continue Reading...

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.

---

© Copyright 2008 by the author, Andrew Kowalsky.

Continue Reading...

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

---

© Copyright 2008 by the author, Terry Kenneth Aladjem.

Continue Reading...

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

Continue Reading...

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.

---

© Copyright 2008 by the author, David Schultz.

Continue Reading...

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.

---

© Copyright 2008 by the author, Susan McWilliams.

Continue Reading...

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?
A: Not really!
Q: But, with so many possible themes – the uselessness of law, law as an oppressive power, law masking powerful political interests, resistance and the attraction of the illegal, the contestable claims of deterrence and control, even law as “useful lies” – how can you control the readings your students will create?
A: Why would I want to? The students must do it themselves, or worse, come to treat someone else as “authority” and let that “authority” do it for them, and not always to their advantage, either…as we all know. But, in Vonnegut’s spirit as an author (as read by Davis), I can only prod my students into thinking about law in the diverse ways contemporary scholarship of all stripes offers. The choice is – and should always be – theirs. Therein, as foil as much as insight, the novel may have classroom potential.

REFERENCES:
Davis, Todd F. 2001. “Apocalyptic Grumbling: Postmodern Humanism in the World of Kurt Vonnegut,” in Boon, ed.. AT MILLENIUM’S END: NEW ESSAYS ON THE WORKS OF KURT VONNEGUT. Albany: SUNY Press.

---

© Copyright 2008 by the author, Stephen McDougal.

Continue Reading...

PUDD’NHEAD WILSON AND THOSE EXTRAORDINARY TWINS

by Mark Twain. Originally published in 1893-1894 by Century Magazine in seven installments. New York: Barnes and Noble Classic, 2005. 256pp. $5.95 paper. ISBN: 9781593082550.

Reviewed by Christopher P. Banks, Department of Political Science, Kent State University. Email: cbanks6 [at] kent.edu.

pp.360-364

At first blush Mark Twain’s PUDD’NHEAD WILSON would not seem appropriate for inclusion in a special issue analyzing literature that contributes to political science or criminal justice pedagogy. Published in the United States in 1894 as THE TRAGEDY OF PUDD’NHEAD WILSON AND THE COMEDY OF THOSE EXTRAORDINARY TWINS, the book actually contains two tales, the sums of which arguably constitute “comic tragedy” (Railton 2002). The first story narrates events surrounding the protagonist’s life before the Civil War. In Dawson’s Landing, a village nestled between St. Louis and the mighty Mississippi, a fair-skinned slave nanny, Roxy (owned by Judge Driscoll’s brother), switches at birth Judge Driscoll’s nephew, Tom, with her own enslaved boy, Chambers. The shorter appendage, THOSE EXTRAORDINARY TWINS, continues the saga after the plot concludes in PUDD’NHEAD WILSON by examining the fate of Angelo and Luigi Capello, foreigners involved in the main story who become ensnared as principal suspects in Judge Driscoll’s murder trial.

Although critics have debated whether the separate stories are best considered as a unitary essay (O’Connell 2002), or whether PUDD’NHEAD WILSON is Twain’s most insightful exposition on slavery or racism (Spangler 1970) in conjunction with the ill-effect of public opinion (Coburn 1970), arguably the first chronicle is the most coherent story with the best potential for application in law and social sciences courses. The novel is an excellent literary devise to compare and contrast themes recurring in judicial process, law and society, or criminal justice courses. After a brief account of PUDD’NHEAD WILSON’s plot, the review will outline the particular ways in which the short novel can be put to use in those types of courses.

PUDD’NHEAD WILSON traces the tragic consequences flowing from the double-life that Tom lives as an undeserving and often monstrous heir to his rich uncle’s estate. He is undeserving because he is really a slave who can pass as a white; and he is a monster because he is relentlessly irresponsible and merciless in his cruelty towards his mother, Roxy. She is a slave who at great expense to her own security keeps Tom’s true identity secret. More than once, she gets Tom out of the trouble he causes by abusing his uncle’s finances and honorable reputation with a pattern of compulsive gambling and cowardice. Tom’s lack of courage ultimately brings him into conflict with his uncle, Judge Driscoll, who is forced to defend Tom’s honor in a duel when Tom refuses to fight after being humiliated in public by Luigi Capello. His lack of fortitude also [*361] is the reason why Judge Driscoll, and Tom, conspire to discredit Luigi publicly after the duel (which Driscoll and Luigi survive). It becomes part of a chain of events that leads to Tom killing his uncle and conveniently laying the blame on the Capello twins, who ran to assist the Judge who had been fatally stabbed by Tom. Tom had tried to steal the Judge’s money while his uncle slept in his house office.

Tom’s secret life, as not only a false heir but also as a thief, intersects with the protagonist, David Wilson, as the story unfolds. As Twain tells it, Wilson is a young lawyer whose reputation is sullied by making an innocuous but ill-considered remark shortly after arriving in town. The misstep causes the village residents to refer to him as “pudd’nhead,” a regrettable label that clings to him for the next twenty years and prevents him from practicing his calling. But, much later on, Wilson’s public reputation grows when he represents, and successfully defends Luigi at a public trial after he is falsely accused of killing the Judge.

Although Wilson is described as “college-bred”, Twain reveals little about his law training other than to say he “had finished a post-college course in an Eastern law school” (p.8) before coming to Dawson’s Landing. Twain expands on two of Wilson’s “pet fads” (p.10), however, which comprise “palmistry” and an unclassified habit “which dealt with people’s finger-marks” (p.11). The latter inclination, which for Pudd’nhead becomes more of a preoccupation, causes him to record meticulously the fingerprints of all of Dawson’s Landing inhabitants over their lifetimes. He kept them on small sheets of glass that were always in his possession or in his office. As it turns out, Wilson’s fingerprinting assumes central importance in exposing Tom as the Judge Driscoll’s murderer near the end of the story.

Several aspects of PUDD’NHEAD WILSON have exciting potential for classroom use. First, Twain’s decision to highlight fingerprinting as a central plot element was ahead of its time, as was Twain’s description of it as an evidentiary tool in a jury trial. As he wrote, “Every human being carries with him from his cradle to his grave certain physical marks which do not change their character, and by which he can always be identified…These marks are his signature, his physiological autograph…[that cannot] become illegible by the wear and the mutations of time” (p.133). In the story, the duplicity underlying Tom’s claim as an heir to his uncle’s estate because of Roxy’s decision to switch the babies at birth could not hide the truth that he was a murderer—a principle that lies at the core of the underlying assumptions of the truth-seeking adversarial model of the criminal justice system.

Under that model of adversarial justice, the prosecutors retain the evidentiary burden to prove Tom’s guilt in front of the jury representing a cross-section of the community (whether the jury in PUDD’NHEAD fairly represented anything other than male, slaveholding white folks is another issue for class discussion). Likewise, Wilson had the onus to rebut the prosecution’s case, which he did through an innovative strategy of forensic science that was still in its infancy at the time Twain wrote the book. In addition to reinforcing the basic [*362] tenets of criminal advocacy and procedure, instructors can use PUDD’NHEAD WILSON as a vehicle to introduce students to contemporary topics in forensic science and to show how lawyers relying upon it can vindicate those who are falsely accused of crimes with DNA “fingerprints” or the like. In the process, the classroom can become engaged in analyzing how scientific evidence is a problem of resources for counsel representing indigent clients, as well as the foundation for the rise of “innocence commissions” that work towards reversing wrongful convictions in criminal justice cases (Schehr and Sears 2005; Scheck and Neufeld 2002).

Next, because the events leading up to Tom’s murder trial track the ordinary sequence of facts that are put before a jury trying a criminal case, the novel can be an effective means to construct, and then dispel, the common perception that the truth, and perhaps justice, only emerge from adversarial criminal proceedings resulting in jury verdicts. As any lawyer or student of law and courts knows, most laymen falsely believe that the true facts of a criminal prosecution are exposed only after the jury discovers it with the help of skillful lawyer-advocates who are engaged in a trial supervised by an unbiased judge. That typical impression is reinforced on a daily basis on the law-and-order cop shows on cable television, and it finds expression in PUDD’NHEAD WILSON. After all, the bad guy was caught in a highly publicized trial that involved a jury and the skilled efforts of a courtroom advocate, just like on T.V. Yet, and as a result of the common misperceptions surrounding the judicial process, the book can be utilized as a myth-buster to illustrate that 95% or more of criminal adjudications are not settled by a singular trial event, but rather by plea bargains or behind the scenes deals that are cut between the prosecution and defense, without jury knowledge or input. Nor is it always accurate, one can also observe, that lawyers are even put in a position to succeed in high-profile criminal trials when the clients are often indigent, the caseload pressures are high, and the resources (and sometimes lawyer competency) are woefully inadequate to the task at hand.

In this light, the issue of why the trial process has become less a courtroom show, or perhaps (more charitably) less a naked exhibition of the raw legal talents of orators who spar for the truth in front of peers sitting in judgment of the accused may be fodder for a classroom debate about the transformation of the legal profession after the introduction of the casebook method as the principal means to train lawyers after 1870. In PUDD’NHEAD WILSON, the lawyer found the truth in an open courtroom and, in an earlier day, that forum typically was the venue for great status and reputation. But, with the rise of the casebook method in U.S. law schools, legal apprenticeship for law training dissipated, and so too did the chances for earning big wins in a courtroom, a phenomenon that coincided with the rise of more efficient, profit-minded Wall Street-modeled law firms. In essence, the book could be the starting point for an analysis of the transformation of the practice of law into the business of law. In addition, an identical classroom discussion could consider the thorny questions that arise over the fairness of prosecutorial discretion and plea [*363] bargains, the reduced role of juries as a source of community conscience and wisdom, and whether trials themselves have become relics of the past because of the costs, time, and caseload demands associated with modern litigation (Yeazell 2004).

Finally, PUDD’NHEAD WILSON can be an example in literature to mull over what many believe ought to be the true “end game” of criminal litigation: that justice is achieved. Although Luigi is set free by a jury of his peers, the trial could not erase the twenty-three years of slavery that Chambers endured because of Roxy and Tom’s deception. As Twain recounts, due to the trial Chambers “suddenly found himself rich and free”, but he “could neither read nor write, and his speech was the base dialect of the negro quarter. His gait, his attitudes, his gestures, his bearing, his laugh—all were vulgar and uncouth; his manners were the manners of a slave”, and the “poor fellow” only “felt at home and at peace nowhere but in the kitchen” (p. 140). Similarly, as Twain explains at the novel’s conclusion, Tom’s confession and subsequent life imprisonment only hurt the creditors who suffered a bigger loss in settling the murdered Judge’s estate after the murderer’s true identity was discovered, in large part because Tom was not rightfully considered a slave and estate property. If he was, he would not have been free to murder his uncle. “As soon as the Governor understood the case,” Twain writes, “he pardoned Tom at once, and the creditors sold him down the river” (p. 140).

In spite of Luigi’s acquittal, and as happens in many litigated matters in real life, PUDD’NHEAD WILSON illustrates that the application of law in a jury trial may sometimes led to unintended consequences and injustice. One of the case’s victims, Chambers, was not helped at all by the orderly application of adversarial justice in a criminal trial; and Tom, although he was punished, was sanctioned by the extralegal effect of a gubernatorial pardon arising from the overriding interests of creditors, a judgment that in the end was not what the jury intended through the imposition of a life sentence. The comic tragedy of PUDD’NHEAD WILSON, then, serves up the cold lesson that is often repeated in law and courts courses—sometimes the law, despite its best intentions, is a source of great misfortune for those who either intentionally or unwittingly become entangled in the judicial process.

REFERENCES:
Coburn, Mark D. 1970. “Training is Everything: Communal Opinion and the Individual in Pudd’nhead Wilson.” MODERN LANGUAGE QUARTERLY 31 (2): 209-219.

O’Connell, Catharine. 2002. “Resecting ’Those Extraordinary Twins: Pudd’nhead Wilson’ and the Costs of ‘Killing Half.’” NINETEENTH-CENTURY LITERATURE 57 (1): 100-124.

Railton, Stephen. 2002. “The Tragedy of Mark Twain.” NINETEENTH-CENTURY LITERATURE 56 (4): 518-544.

Scheck, Barry C. and Peter J. Neufeld. 2002. “Toward the Formation of ’Innocence Commissions in America.’” JUDICATURE 86 (September/October): 98-105. [*364]

Schehr, Robert Carl and Jamie Sears. 2005. “Innocence Commissions: Due Process Remedies and Protection for the Innocent Critical.” CRIMINOLOGY 13: 181–209.

Spangler, George M. “Pudd’nhead Wilson: A Parable of Property.” AMERICAN LITERATURE 42 (1): 28-37.

Yeazell, Stephen C. 2004. “Getting What We Asked For, Getting What We Paid For, and Not Liking What We Got: The Vanishing Civil Trial.” JOURNAL OF EMPIRICAL LEGAL STUDIES 1: 943-971.

---

© Copyright 2008 by the author, Christopher P. Banks.

Continue Reading...

THE STRANGE CASE OF DR. JEKYLL AND MR. HYDE

by Robert Louis Stevenson. Martin A. Danahay (ed) 2d ed.. First published in 1886. many editions available. Peterborough, Ontario: Broadview, 2005. 215pp. Paper $10.95. ISBN: 9781551116556.

Reviewed by Simon Stern, Faculty of Law and Department of English, University of Toronto. Email: simon.stern [at] utoronto.ca.

pp.356-359

Those who know of Stevenson’s THE STRANGE CASE OF DR. JEKYLL AND MR. HYDE from the versions circulating in popular culture will think of it as a medical or psychological case history, the story of a split personality. The book can also usefully be approached, however, as a legal case—and Stevenson hints at that possibility by using the title “The Carew Murder Case” for the chapter that describes Mr. Hyde’s most heinous crime, an unprovoked, lethal attack on Sir Danvers Carew (p.46). Because of the way in which Stevenson presents the relation between the Jekyll and Hyde personalities—and because one of the central actors in the plot is a lawyer—the novella provides an excellent vehicle for exploring questions about mens rea in criminal law.

Stevenson’s tale was first published in 1886 and many editions are available, but the Broadview edition is particularly useful, for reasons discussed at the end of this review. While the story hints cryptically at numerous crimes to be laid at Hyde’s door (see, e.g., p.54), the main events animating the plot are an assault and two deaths. The assault is described retroactively in the first chapter, in a conversation between Enfield and his old friend Utterson, who happens to be Jekyll’s lawyer. Enfield explains that he witnessed the assault on a dark night in a lonely part of London. A “little man who was stumping along” encountered “a girl of maybe eight or ten” and “calmly trampled over the child’s body and left her screaming on the ground” (p.33).

Enfield adds that he “collared” the malefactor and took him back to the scene of the crime, where a crowd had formed. The girl was more frightened than hurt, but the crowd demanded £100 compensation for her family, and the offender, one Mr. Hyde, paid part in gold and made up the difference with a cheque drawn on Dr. Jekyll’s account. (Although Hyde had been detained until the next morning, when the cheque could be cashed, there seems to have been no thought of charging him with assault.) Enfield in fact declines to mention Jekyll’s name when he recounts the story, but Utterson guesses at the connection because he has long been troubled by Jekyll’s will, which provides in the event of his own “disappearance or unexplained absence” (p.37) that all of his assets should become Hyde’s property.

The Carew murder occurs about a year later, and again is described by an eyewitness, this time a serving maid who saw the whole thing from her window. She says that she saw Hyde (whom she recognized from a previous meeting) out on another nocturnal perambulation.[*357] When he came across Sir Danvers Carew, Hyde behaved like a “madman” and struck him with a cane. “And the next moment, with ape-like fury, [Hyde] was trampling his victim under foot and hailing down a storm of blows, under which the bones were audibly shattered” (p.46). The police undertake a search for Hyde, but he is nowhere to be found. Finally, near the tale’s close, Jekyll’s servant, Poole, becomes convinced that Hyde has done away with Jekyll and has locked himself up in Jekyll’s laboratory. Poole persuades Utterson to join him in breaking into the laboratory to confront Hyde, but as they do, Hyde commits suicide.

The lawyer finds a new will, in which Jekyll devises his assets to Utterson rather than Hyde, and a pair of manuscripts explaining how Jekyll began to study “those provinces of good and ill which drive and compound man’s dual nature” (p.76). Using a “simple crystalline salt” and a “blood-red liquor” (p.71), Jekyll learned how to enjoy the “indescribably new and . . . incredibly sweet” sensation of turning into Hyde (p.78), of taking on the body and personality of “a being inherently malign and villainous” (p.81). Another drink turned him back into Jekyll. What began as a secret indulgence became a fearful “slavery” (p.80). Then the transformation began to come on involuntarily and with increasing frequency. Jekyll’s account concludes at the point when, having consumed his supply of the salt and unable to get more, he anticipates that a final transformation in the hideous Hyde will “bring [to an end] the life of that unhappy Henry Jekyll” (p.91).

Jekyll conjectures, in the last paragraph of his manuscript, that his alter ego may “die upon the scaffold” (p.91), but what about his own liability? Jekyll takes pains to distance himself from Hyde, emphatically designating him, at one point in the manuscript, in the third person: “He, I say—I cannot say I” (p.88). At other points, however, Jekyll refers to Hyde in the first person (“I was unable to conceal the alteration in my stature,” p.82), and one of the most significant clues to the mystery involves the resemblance between Jekyll’s and Hyde’s handwriting (pp.53, 87). The novella’s title, similarly, hints at the inseparability of the two figures: like the word “hide,” “case” also carried the sense of “body” or “skin.”

To what extent, then, could Jekyll be charged with the murder of Sir Danvers? In his manuscript, Jekyll seems to anticipate this question, but his answer is ambiguous. “No man morally sane could have been guilty of that crime,” he avers, in what seems to amount to a plea of not guilty because of temporary insanity (p.85). Yet he immediately adds, “But I had voluntarily stripped myself of all those balancing instincts” (p.85) that would have prevented the attack—and he compares his condition to that of a “drunkard” (p.84). (That analogy is even more explicit in Bliss 1891, which retells the story with a happy ending “to correct the shortcomings” of Stevenson’s tale, and which uses alcohol rather than drugs to explain the transformation.)

Around the time of Stevenson’s novella, English courts had begun to consider the possibility that mental conditions resulting from voluntary intoxication may negate specific intent, though not [*358] general intent. For example, in an influential 1887 judgment, Justice Stephen explained that when “the intention of the party committing [a crime] is one of its constituent elements,” the trier of fact may look to the defendant’s drunkenness in determining “whether he formed the intention necessary to constitute the crime” (REGINA V. DOHERTY). Under the split personality theory, Jekyll and Hyde may share the same case, but the former cannot be said to have acted voluntarily during any of his violent acts—and Stevenson emphasizes that possibility by making him turn into Hyde spontaneously in the latter phase of the story. On the other hand, the understanding of Jekyll as a kind of drug addict, voluntarily nursing his habit, would at least leave him liable for manslaughter.

The same logic would seem to apply to Hyde. If he exhibited, as the eyewitness to Carew’s murder reports, an “ape-like fury” (p.46), and if he was not “morally sane” (p.85), as Jekyll insists, then perhaps the Hyde aspect of a split personality would no more deserve to be hanged than the Jekyll aspect, but instead should be treated as insane. The answer is complicated, however, by the question of how insanity should be understood. According to the M’NAGHTEN rule, the prevailing standard when Stevenson was writing, the question is whether the accused “was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or . . . [not to] know he was doing what was wrong” (M’NAGHTEN’S CASE). Stevenson appears to track this standard when he describes Hyde’s “complete moral insensibility and insensate readiness to evil” (p.84), but Hyde’s increasingly panicked efforts to become Jekyll once again—even after the transformation has begin to occur spontaneously—seem to show that Hyde is aware of the moral status of his behavior. One of the questions that JEKYLL AND HYDE can be used to raise, then, involves the difference between the M’NAGHTEN approach and an approach that focuses more generally on the defendant’s ability to adhere to legal requirements.

To extend the question further, what if Hyde is regarded as embodying a mental condition precipitated by Jekyll’s voluntary act—and by the story’s end as a permanent mental condition that Jekyll had never imagined possible? (The Carew murder occurs while Jekyll is still able to control the transformation, but one of the hypothetical questions that can be raised when considering the story involves the liability that would attach to Hyde’s conduct if he committed a murder after the change became permanent.) In that case, Hyde begins to resemble the accused in STATE V. MAIK, in which the New Jersey Supreme Court held that insanity, rather than merely inability to form a specific intent, is the proper characterization when a party’s “psychotic state . . . continue[s] after the direct or immediate influence of [a] drug”. But Hyde’s case may not be quite the same, because the MAIK court concluded that “the underlying illness from which the psychotic episode emerged was not caused by the use of drugs”, but was already latent and had been brought to the surface by drug use.

Again, though, in reviewing his history, Jekyll insists that his research was [*359] originally provoked by his awareness of the “two natures that contended in the field of [his own] consciousness” (p.77). Perhaps Jekyll did begin with an underlying illness, so that his voluntary ingestion of the drugs, as in Maik’s case, should be seen as a confounding detail that is to be ignored when deciding liability. The issue is further complicated, however, by Jekyll’s speculations about the “thorough and primitive duality” of humans in general (p.77). Much of the interest in Stevenson’s tale lies in its status as a moral allegory about the human character, not as an exploration of Jekyll’s uniquely conflicted psyche. If Jekyll’s “underlying illness” is universally shared, should it be taken into consideration when we ask whether Hyde’s crimes were brought about by a voluntary act? JEKYLL AND HYDE thus opens up extensive vistas for discussion of different degrees of criminal liability.

The Broadview edition helpfully includes several other documents that can also be brought to bear on these issues. Stevenson’s article, “A Chapter on Dreams” (1888), discusses how he came to write the novella, and offers further reflections on “man’s double being” (p.102). Comments by contemporaneous book reviewers also support the idea of Jekyll’s developing addiction (e.g., “a feeble but kindly nature steadily and inevitably succumbing to the sinister influences of besetting weaknesses,” p.138). Finally, in addition to cases featuring current-day disputes about the role of voluntariness in assessing liability and the meaning of insanity as it bears on that question, teachers of criminal law may find it useful to assign the 1888 decision in STATE V. YARBOROUGH, a first-degree murder case that centers on the question of voluntary intoxication, and that devotes half a page to JEKYLL AND HYDE. In upholding the trial court’s guilty verdict, the Kansas Supreme Court asked, “Should it be said that Dr. Jekyll was not responsible, and that Mr. Hyde, after all, and Mr. Hyde alone, was the guilty one?” (STATE V. YARBOROUGH).

REFERENCE:
Edgar Janes Bliss. 1891. THE PERIL OF OLIVER SARGENT. New York: Webster.

CASE REFERENCES:
REGINA v. DOHERTY, 16 Cox C.C. 306 (Central Criminal Court 1887).

M’NAGHTEN’S CASE, 8 Eng. Rep. 718 (H.L. 1843).

STATE v. YARBOROUGH, 18 P. 474 (Kan.1888).

STATE v. MAIK, 287 A.2D 715 (N.J. 1972).

---

© Copyright 2008 by the author, Simon Stern.

Continue Reading...

HARRY POTTER AND THE ORDER OF THE PHOENIX

by J.K. Rowling. New York: Scholastic Paperbacks, 2004. 870pp. Paper $9.99. ISBN: 9780439358071.

Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. Email: bgpeabody [at] msn.com.

pp.351-355

At over 4,000 pages, and with more than 400 million books sold, the seven part Harry Potter series is an expansive cultural inkblot – largely unavoidable and open to diverse, and, at times, contradictory interpretation. This review of J.K. Rowling’s fifth Potter book, HARRY POTTER AND THE ORDER OF THE PHOENIX, presumes that whatever the literary merits or deficiencies of the saga, its widespread and, at times, feverish consumption makes it relevant as an object of scholarly study and reflection. In five years or so, millions of students who have attentively followed Harry’s exploits will be on their way to college. Seen in this light, Rowling’s work can serve as a literary conduit for engaging a coming cohort who grew up with Potter as their figurative companion.

Prior commentaries on the legal and political themes in the Potter novels have pointed to the presence of contract law principles in the books, their depiction of punishment and torture, the author’s hostility to bureaucratic forms of rule, and the undercurrent of libertarianism coursing throughout the lengthy tale (see, e.g., HARRY POTTER AND THE HALF-CRAZED BUREAUCRACY; HARRY POTTER, LAW, AND CULTURE). This review takes a somewhat different tack, noting themes of likely interest to a wide audience of law and courts scholars and offering particular teaching strategies for using Rowling’s work. In order to make the sprawling series more accessible and manageable, the emphasis here is on specific approaches teachers might adopt in exploring the perennial legal themes embedded in just one of the novels.

HARRY POTTER AND THE ORDER OF THE PHOENIX opens with the protagonist defending himself and his cousin against a pair of wraith like “dementors.” Harry staves off their assault, but only by employing magic in an area populated by “Muggles” (non-magical humans), an act that is prohibited by “paragraph C of the Decree for the Reasonable Restriction of Underage Sorcery” and “section thirteen of the International Confederation of Wizards’ Statute of Secrecy” (p.140). Harry’s use of sorcery, in apparent violation of these prohibitions, is scrutinized and initially punished by the Ministry of Magic, the bureaucratic and lawmaking body in charge of regulating all things magical.

In the mean time, Harry learns about the Order of the Phoenix, a secret society pitted against his nemesis, Voldemort, who is, in turn, scheming to consolidate power. The Ministry of Magic features prominently in this struggle, with much of the novel’s plot turning on the Ministry’s corruption, amorality, and inefficacy, shortcomings that make it blind to Voldemort’s rising menace. [*352]

These failings are presented in an extreme form through the character of Dolores Umbridge. Umbridge is a Ministry official who initially helps lead the prosecution of Harry and subsequently installs herself at his cherished school, Hogwarts. Gradually, Umbridge’s personal aggrandizement comes at the expense of the school’s operation and the students’ magical education. By the end of the novel, Harry and his classmates revolt against her increasingly autocratic and arbitrary rule.

In this narrative and in the Potter tales in general, law is a quiet but insistent presence. Throughout the series, many of Harry’s most important decisions turn on whether to break or uphold various school rules or Ministry decrees. Indeed, Harry is often depicted as someone outside of the normal law. “The usual rules do not seem to apply with you, Potter,” declares his recurrent tormentor, Severus Snape (p.531).

Three legal themes are especially prominent in HARRY POTTER AND THE ORDER OF THE PHOENIX. First, Rowling invites us to reconsider the traditional dichotomy between the rule of law and the rule of individuals. In general, Rowling’s work evinces a high regard for the choices and autonomy of individuals in opposition to formal institutions, including legal organizations. Indeed, laws and regulations often work best when their authority is synonymous with the authority of a single person. For example, in the first four novels of the Potter series, Albus Dumbledore, the headmaster of Hogwarts, presides over the school with minimal external constraints or formal guidelines.

But in HARRY POTTER AND THE ORDER OF THE PHOENIX, Rowling shows greater concern for how the rule of law can be denigrated when it becomes subsumed by the capricious choices of individuals. In the book, legal and moral transgressions typically follow when the impersonal and formal equality of the rule of law is replaced with the agendas and vindictiveness of specific characters. Dumbledore, for example, chastises the Minister of Magic for deviating from past traditions in holding a full criminal trial against Harry for a “simple matter of underage magic” (p.149). As he further admonishes, “[i]n your admirable haste to ensure that the law is upheld, you appear, inadvertently I am sure, to have overlooked a few laws yourself” (p.149).

The danger posed by the unfettered rule of ambitious individuals is also embodied in the figure of Dolores Umbridge. Umbridge initially comes to Hogwarts as an officious teacher seeking to reform its educational system. In short order, however, she is appointed by the Ministry as “Hogwarts High Inquisitor” with sweeping and ever increasing power. As Rowling puts it, Umbridge consistently exhibits a “furious desire to bring every aspect of life at Hogwarts under her personal control” (p.551). The result of this conflation of the law at Hogwarts with the predilections of the High Inquisitor is calamitous. The students and staff are, in turn, bored, stifled, and terrified by Umbridge’s restrictive decrees (p.351, 416) and highly personalized rule.

As a cognate issue, Rowling seems to recognize that as a form of social regulation, law possesses distinctive traits and claims to authority. Among [*353] the features distinguishing and legitimating the Ministry’s law from, say, the decisions and agreements Harry makes with his friends, is its written-ness, specificity, and formalism. When Harry is first informed that he has violated the Decree against Underage Sorcery, the official Ministry notice outlines the particulars of his offense, the forms of law he has broached, and the terms of his preliminary and pending sanctions (p.26). This letter is almost immediately opposed by a short, scrawled message Harry receives from the father of his best friend. But this note’s command (exhorting Harry to stay where he is and not use magic again) is only backed by Harry’s personal relationship with the author, and the vague promise that Dumbledore is “trying to sort it all out” (p.28).

A second major theme throughout the novel is the complex and often divergent relationship between law and justice. Even Harry’s uncharitable Uncle, Vernon Dursley, is perplexed upon hearing that Harry has been disciplined for using magic to protect himself and Vernon’s son, Dudley. “If it was demenders [sic] who hurt Dudley, how come you’ve been expelled?” he inquires (p.35). At Harry’s judicial hearing, it becomes clear that the Minister of Magic wishes for a speedy resolution of Harry’s case, preferably with a finding of guilt. But Dumbledore, serving as Harry’s legal advocate, urges a more circumspect and deliberative approach. “[N]aturally,” he coolly suggests, “you would not care how many times you heard from a witness, if the alternative was a serous miscarriage of justice” (p.148).

Harry is ultimately cleared of all charges, temporarily vindicating due process and lending credence to the association of law with just outcomes. On other occasions, however, this relationship is by no means secure. Harry’s godfather, Sirius Black, remains hunted throughout the novel for crimes he did not commit. When Harry and several of his friends fight with Draco Malfoy, a despised classmate, Umbridge hands out sentences that Rowling depicts as widely divergent, harsh, and unfair. In still another case, a suspect accused of terrorizing Muggles with “regurgitating toilets” is not prosecuted in return for his delivering information about Harry’s clandestine and illegal efforts to teach his classmates how to defend themselves against the “dark arts” (pp.614-615).

Finally, Rowling’s fifth novel is distinguished by its somewhat ambiguous evaluation of law. On the whole, Rowling does not offer positive assessments of the performance of law, or its role in our lives. In the final book of the Potter series, Harry’s friend Hermione rejects the suggestion that she might pursue a career in “Magical Law,” retorting that “I’m hoping to do some good in the world!”

In HARRY POTTER AND THE ORDER OF THE PHOENIX law and legal forums are generally depicted as dark and convoluted. Legal procedures are at once threatening and removed – important legal decisions and commands are issued at a distance. When Harry enters the chamber for his hearing, he is greeted by “shadowy figures,” an “ominous silence,” and a large body of inquisitors who stare “down their noses at him” (p.137). He sits at a chair with chains designed to magically bind [*354] individuals accused of even more serious crimes.

At the same time, law is portrayed as being somewhat absurd. Complex regulations seem to govern every aspect of magical life. When Umbridge is confronted by a group of irate centaurs, she feebly invokes “Law Fifteen B” and other regulations, but this only has the effect of enraging the creatures further (pp.754-755). In Rowling’s world, the law is ultimately no match for the raw, unadulterated power implicit in natural forces and entities.

But these critiques are somewhat tempered by Rowling’s portrayal of other aspects of the legal system. Law and legal decisions are depicted as swift and decisive. Harry is given notice of his hearing efficiently, and he is tried and acquitted in a single morning. At a number of turns, Rowling also concedes that the law can be distinctively powerful – it possesses a comprehensive reach and is backed by the force of official institutions such as the Ministry and the Wizengamot, the Ministry’s highest tribunal.

Furthermore, the law is not without an inner logic. Harry’s defense turns, in part, on a stipulated exception to the normal rule that wizards can not perform magic in Muggle areas. His behavior is exonerated because of recognized “exceptional circumstances” including events that threaten the life of the accused wizard or Muggles (p.148). Moreover, Dumbledore is depicted as an agile and commendable legal advocate, who defends the credibility of Harry’s witness, insists upon due process and recognizes the trial court’s limited jurisdiction. In short, while Rowling casts the law as something that can be perverted in the wrong hands, it is also capable of rendering fair outcomes when proper procedures are followed.

HARRY POTTER AND THE ORDER OF THE PHOENIX would be appropriate for inclusion in any class that touches upon the themes delineated in this review. In particular, the novel could fit in well with law and society courses, especially discussions about the nature of law and legal authority. The book would also be suitable for a law and literature class, and could be interestingly paired with other, more traditional fictional selections, such as THE DEVIL AND DANIEL WEBSTER or THE TRIAL. Since the Potter series is situated in the United Kingdom, and since the wizarding world is itself a distinctive milieu, HARRY POTTER AND THE ORDER OF THE PHOENIX could also be used in courses examining comparative legal issues, although, given the fictional backdrop, this would obviously need to be handled with some care. Finally, the presence of a popular movie version of the book could be of use to faculty wishing to teach the novel’s themes in a law and film or law and popular culture class.

With respect to more specific teaching strategies, one obvious approach would be to assign students portions of the book rather than asking them to read nearly 900 pages. Even if they are not familiar with the novel as a whole, undergraduates should be able to engage its principle legal themes by focusing on a handful of chapters including those detailing Harry’s attack by the dementors, his being served official legal notice, the resulting hearing, and Umbridge’s efforts to bring the [*355] Hogwarts academy to heel through her draconian decrees. Finally, as intimated earlier, the most helpful suggestion with respect to HARRY POTTER AND THE ORDER OF THE PHOENIX may be simply to wait. In the course of a few years, incoming undergraduates are more likely than contemporary students to be familiar with Harry’s tale – and will therefore be better positioned to grasp its powerful cultural hold and relevance.

REFERENCES:
Barton, Benjamin. 2006. “Harry Potter and the Half-Crazed Bureaucracy.” MICHIGAN LAW REVIEW 104: 1523-1538.

Benet, Stephen Vincent. 1999 [1937]. THE DEVIL AND DANIEL WEBSTER AND OTHER WRITINGS. New York: Penguin Books.

Kafka, Franz. 1998 [1925]. THE TRIAL. New York: Schocken Books.

Thomas, Jeffrey E., et. al. 2005. “Harry Potter, Law, and Culture: Harry Potter and the Law.” TEXAS WESLEYAN LAW REVIEW 12 (1): 428-484.

---

© Copyright 2008 by the author, Bruce Peabody.

Continue Reading...

KNOCK ON ANY DOOR

by Willard Motley. DeKalb, Illinois: Northern Illinois Press, 1989 (original edition 1947). 515pp. Paper. $19.95. ISBN: 9780875805436.

Reviewed by Walter J. Kendall, III, The John Marshall Law School. E-mail: 7kendall [at]jmls.edu.

pp.348-350

Brian Tamanaha’s General Jurisprudence “presupposes very little about law, leaving that open to conventional identification, and subsequent conceptual analysis and empirical study. Instead of dictating what law is, it asks how groups of people talk about law. Instead of assuming what law does, it examines what people do with law.” (Tamanaha, 156). This view brings within the realm of jurisprudence, among other cultural formations, novels and the facts and truths in fiction. (Denning, xx). Critics recognize that the details of the experiences of the protagonist in Willard Motley’s KNOCK ON ANY DOOR are grounded in fact on the streets of Chicago, in juvenile institutions, and in the criminal justice system (Fikes, 511-12).

Nick Romano, the protagonist of KNOCK ON ANY DOOR was one of three children of an early twentieth century immigrant couple. He was a good child, perhaps too good; obedient, studious, and an enthusiastic altar boy. Then his father’s small food import business failed. The family moved to a less affluent neighborhood and Nick was transferred to a new school in a new parish. Four hundred eighty nine pages before his death by electrocution for killing a policeman Nick is ensnared in one of those moments of moral and ethical choice experienced by many people. Tony, a classmate and Nick’s best friend, in an act of then not uncommon grade school misbehavior, shoots a bent pin at Sister Ignatius. At that moment Father Scott, the pastor, walks into the classroom.

Tony pulled the rubberband from his fingers and threw it on the floor. It landed in the aisle, halfway between Tony and Nick. Nick reached out with his foot, remembering that Tony would be expelled. His toe barely reached it, the rubberband was stubborn and jelly-like beneath his toe as he tried to pull it under his desk. He stepped over and picked it up, palming it quickly. As he straightened Father Scott’s bony fingers closed on his collar.
‘Did you do that?’ It was an accusation. Y-y-yes Father.’ (p.15).

This quote captures both the style and substance of the novel. The style is Naturalism. It “collect(s) a huge body of evidence, that multiplie(s) similar incidents and amasse(s) detail in order to create its effect.” (Fleming, 119). Its effect is the limiting, but not quite determinative impact of powerful social forces on the choices open to the novel’s protagonist.

Its substance is that of the Chicago School of Urban Sociology. The Chicago school of pre-World War II America sought “to counter the traditional view of the modern American city as chaos, invisibility, unnatural nature, and outside history.” It “conceptualized the city as harmonious [*349] space and intelligible time.” Yet the studies of the Chicago School found the slums as “a natural disorder … contagious, degenerative, and (of) unintelligible fragment(s).” They tried to make sense of these discordances by “case studies” of people’s decision-making in this dangerous and constraining environment. (Cappetti, 36).

Motley and KNOCK ON ANY DOOR are also important to an understanding of the Midwest-based renaissance of African-American literature beginning in the thirties, inspired especially by the early writings on Richard Wright. (Werner, 132-33). Wright in explaining Bigger Thomas, his paradigmatic character in NATIVE SON says he was “not black all the time; he was white too and there were literally millions of him everywhere.” (Hapke, 236). Thus we have Nick Romano, a white ethnic character illustrating urban working class pathology in a novel by an African-American.

Nick’s eight year more or less “forced” march to his death at 21 covers the initial confinement in an abusive and dangerous juvenile home for a crime he did not commit and the move from Denver to Chicago where he falls in with a tough crowd and does a second stint in a reformatory. That experience is the training program for his subsequent life of petty urban street crime, assault, and burglary. Along the way, there’s a good hearted social worker, a caring homosexual friend, a marriage to an innocent girl, often abusive and corrupt police, particularly Officer Riley, and a caring family but one lacking in any understanding of Nick’s experiences and emotions.

The last 160 of the 504 pages of the book concern Nick’s capture, interrogation, confession, trial, conviction, sentencing, and execution for killing Officer Riley. These are presented with the same detailed attention to the reality of the legal processes as the earlier portions of the book presented the urban sociology of poverty.

KNOCK ON ANY DOOR presents in stark detail a picture of both early twentieth century sociological theory and the pre-Warren Court criminal justice system. The first 343 pages can readily be used as a case study against which to analyze and critique contemporary sociological, psychological, and philosophical views of the relationship between environment and criminal behavior in its many permutations, especially juvenile justice. (Heffernan and Kleinig). The last 160 pages can serve as a benchmark or initial position from which to measure the impact of the Warren Court criminal justice decisions on police and court practices. (Thomas). They could thus serve as a case study in courses in criminology, constitutional law, and political sociology.

KNOCK ON ANY DOOR was a best seller when published in 1947, selling almost 50,000 copies in its first month. It was made into a successful movie two years later starring Humphrey Bogart. The film could meet the needs of Professors who have moved away from textbooks and other print materials. Coincidently, the movie was shown on the Turner Classic Movie channel earlier this year, so it is still generally available and of interest. [*350]

REFERENCES:
Cappetti, Carla. 1993. WRITING CHICAGO: MODERNISM, ETHNOGRAPHY, AND THE NOVEL. New York: Columbia University Press.

Denning, Michael. 1998. THE CULTURAL FRONT: THE LABORING OF AMERICAN CULTURE IN THE TWENTIETH CENTURY. New York: Verso.

Fleming, Robert. 1995. “Willard Motley” in Bloom, ed., MODERN BLACK AMERICAN FICTION WRITERS. New York: Chelsea House.

Fikes, Robert. 1997. “Willard Motley” in Andrews, William, Foster, Frances Smith, and Harris, Trudier eds., THE OXFORD COMPANION TO AFRICAN AMERICAN LITERATURE. New York: Oxford University Press.

Hapke, Laura. 2001. LABOR’S TEXT: THE WORKER IN AMERICAN FICTION. New Jersey: Rutgers University Press.

Heffernan, William and Kleing, John eds. 2000. FROM SOCIAL JUSTICE TO CRIMINAL JUSTICE. New York: Oxford University Press.

Tamanaha, Brian. 2001. A GENERAL JURISPRUDENCE OF LAW AND SOCIETY. New York: Oxford University Press.

Thomas, George C. ed., 2005. “Symposium. The Warren Court Criminal Justice Revolution: Reflections A Generation Later,” Ohio State Journal of Criminal Law 3:1. pp. 1-200.

Werner, Craig. 1997. “Chicago Renaissance” in Andrews, William, Foster, Frances Smith, and Harris, Trudier eds., THE OXFORD COMPANION TO AFRICAN AMERICAN LITERATURE. New York: Oxford University Press.

---

© Copyright 2008 by the author, Walter J. Kendall, III.

Continue Reading...

BILLY BUDD, SAILOR

by Herman Melville. Originally published, 1924. 160pp. Many editions available. Paper. $4.95. ISBN: 9781416523727.

Reviewed by Stephen A. Simon, Department of Political Science, University of Richmond, ssimon [at] richmond.edu.

pp.344-347

Herman Melville’s BILLY BUDD can serve as an excellent basis for discussions about fundamental questions in law and politics. For those (like myself) who somehow managed to avoid reading the story during high school or college, it may be best to begin with a very brief summary. Billy Budd is a young man impressed from a merchant ship in 1797 and made foretopman on the INDOMINATABLE – a warship in the British Navy. In a conversation with the Captain, Edward Fairfax Vere, the ship’s master-at-arms, Jon Claggart, accuses Budd of mutinous conspiracy. Skeptical of the accusations (given Budd’s easy-going and cheerful bearing), Captain Vere invites Claggart to make the accusations in Budd’s presence. Given the opportunity to rebut the accusations, Budd, who suffers from an inability to speak under duress, is unable to do so. Frustrated and angry, Budd strikes Claggart, killing him. Though believing Budd innocent of mutiny and free of any intent to kill Claggart, Vere quickly convenes a drumhead court to try Budd, who is convicted and hung the next morning.

One set of jurisprudential questions centers on the justice of Budd’s conviction and execution. Budd is an extraordinarily sympathetic character. He is happy-go-lucky, well-liked, and devoid of cynicism or ill will towards others. We know him to be innocent of the charges of mutiny. Claggart’s accusations are not only false but malicious, as Claggart is a man controlled by envy, determined to destroy Budd. Moreover, we know of Budd’s difficulty with speaking in times of great stress, and what greater stress than to be accused falsely to one’s face, with no warning, of a capital crime. In short, in purely moral terms, we may view Budd as the innocent party, and Claggart as the guilty one who receives his comeuppance. But then there is the fact, witnessed by the Captain himself, that Budd struck and killed a superior officer aboard a warship in plain contravention of enacted law.

This set of facts makes a good jumping off point for discussions about the relationship between human-made law and principles of justice that exist independently of convention. In addition, since the action centers on a trial decided by a three-judge panel, the story also provides a ready entree into the related question of how judges should interpret and apply the law. What considerations are relevant to the determination of Budd’s guilt or innocence? Does it matter that Budd may have been morally free of guilt? Are the judges entitled or obliged to consider the justice of Budd’s actions, or is their authority limited to strict application of the letter of the law? Nor must the reader conjure up these themes with imaginative interpretations of obscure text; Melville hand-delivers [*345] them. In describing the situation confronting Vere after Claggart's death, for example, Melville writes:

[I]nnocence and guilt personified in Claggart and Budd in effect changed places. . . The essential right and wrong involved in the matter, the clearer that might be, so much the worse for the responsibility of a loyal sea-commander inasmuch as he was not authorized to determine the matter on that primitive basis.

Thus, the story line serves well as the basis for discussion of fundamental questions in the philosophy of law. At the same time, BILLY BUDD also affords the opportunity to explore fundamental questions in political philosophy. This additional layer of questions is opened up by the manner in which the chief characters are described. Budd, who is compared to Adam before the fall, brings to mind that familiar figure of modern philosophy – the human being in a pre-political state of nature. Of course, different philosophers have written this character differently – Budd is in many respects more like the one we meet in Rousseau's DISCOURSE ON THE ORIGIN OF INEQUALITY AMONG MEN than the one to which Hobbes introduces us in LEVIATHAN. Budd is, for example, neither fearful nor fearsome; rather than inclining to strife, Budd's mere presence brings peace and tranquility. The notion that Budd stands outside civilization is suggested in a number of ways, including repeated animalistic descriptions: “Of self-consciousness he seemed to have little or none, or about as much as we may reasonably impute to a dog of Saint Bernard’s breed.” Though unable to read, Budd "could sing, and like the illiterate nightingale was sometimes the composer of his own song." Budd, too, is untouched by the corrupting influences of civilization: "Billy in many respects was little more than a sort of upright barbarian, much such perhaps as Adam presumably might have been ere the urbane Serpent wriggled himself into his company.”

That Budd is taken from a ship called RIGHTS OF MAN and thrust into the highly regimented world of a warship, the INDOMINATABLE, provides opportunities to discuss the compromises made when individuals trade their natural liberty in return for the order promised by the establishment of government. The contrast between Budd and his new environment is striking. Immediately upon his arrival on the warship, Budd witnesses the flogging of a novice seaman who had been absent from his post. Budd is chastened by the event, determined never to suffer the same fate. A veteran seaman who befriends Budd ponders "what might eventually befall a nature like that, dropped into a world not without some man traps and against whose subtleties simple courage lacking experience and address and without any touch of defensive ugliness is of little avail."

The character of Captain Vere also represents fascinating contrasts with Budd. Where Budd knows nothing of his parents or origins, Vere comes from nobility. Where Budd is illiterate, Vere is a contemplative intellectual who loves reading about history and philosophy. Where Budd seems less an actual individual than a symbol of primitive humanity, Vere is the embodiment of political order and strict application of enacted law. He brooks no delay in trying and executing Budd. At the trial, [*346] he persuades the judges to consider nothing beyond the bare facts of the matter – that Budd’s fist caused Claggart’s death – since the applicable law places no weight on intent. Sensing the judges’ moral qualms about convicting Budd of a capital crime, Vere argues:

But in natural justice is nothing but the prisoner's overt act to be considered? How can we adjudge to summary and shameful death a fellow-creature innocent before God, and whom we feel to be so? -- Does that state it aright? You sign sad assent. Well, I too feel that, the full force of that. It is Nature. But do these buttons that we wear attest that our allegiance is to Nature? No, to the King.

Vere can also be seen as representing public order and the general welfare pitted against Budd, the individual. When the court raises the possibility of mitigating Budd’s sentence, Vere counters by noting the potentially dangerous consequences of displaying weakness to the other sailors.

Adding even greater richness to the tale is the mutual respect that Vere and Budd show for each other. When Budd tells the court that Claggart’s charges of mutiny were unfounded, Vere jumps in to say “I believe you, my man," prompting Budd to reply "God will bless you for that, Your Honor!” In his last words before hanging, Budd proclaims “God bless Captain Vere,” and we are told that Vere’s last words before dying of a battle wound were simply “Billy Budd, Billy Budd.”

The story, then, opens the door to provocative questions at the broadest level about the nature and purposes of law and political community. What makes BILLY BUDD such an engaging way to approach these questions is that, in doing so, one can easily navigate between the “big” questions and more specific inquiries about the characters themselves. What is the significance of the fact that Budd and Vere seem to respect each other so deeply, despite their strikingly different characters, and Vere’s role in bringing about Budd’s hasty execution? Why does Claggart so detest Budd? If Budd represents primitive humanity and Vere civilization, then does Claggart represent the risks of corruption and arbitrary power inherent in the establishment of government? And how should we feel about Budd’s death? Does Budd’s execution amount to the unjust slaying of an innocent man? If so, does this injustice represent something vital that is inevitably sacrificed in the name of political order? The story also provides an easy entree into questions about criminal [*347] responsibility and the purposes of punishment. Can Budd’s homicide be justified on the grounds of self-defense, or excused on the grounds that the extraordinary circumstances led him to act essentially without volition? In a digressionary chapter of one page, Melville even alludes to the “intricacies involved in the question of moral responsibility; whether in a given case, say the crime proceeded from the mania in the brain or rabies in the heart.” Indeed, Vere’s own sanity is repeatedly drawn in question.

BILLY BUDD seems an especially good fit for courses on philosophy of law, but could also work well in any course addressing the range of questions noted, including, for example, criminal justice courses dealing with criminal responsibility, or any courses on constitutionalism or political thought that engage social contract theory or the tensions between enacted law and natural justice. In addition to its substantive content, two other features of BILLY BUDD make it well-suited for classroom use. First, as a novella well under a hundred pages, it makes for a remarkably efficient assignment. Second, the philosophical themes are readily accessible without having an expertise in Melville or in literature generally. Melville does not hide the ball, he throws it at your head.

I recently assigned BILLY BUDD in an undergraduate, seminar-style Political Science course on “Jurisprudence.” On the day we were slated to discuss the story in class, students were required to turn in a short (two-page) paper. The paper asked students, imagining themselves as a judge at Budd’s trial, to present arguments supporting either Budd’s innocence or guilt. The class discussion was one of the liveliest I have seen on any topic. Not only were the students thoroughly engaged in debating the immediate question concerning the verdict at Budd’s trial, but they also effectively connected the story with jurisprudential theories we had discussed earlier in the course, and raised additional issues beyond the more obvious “big” questions suggested by the story. One student, for example, contended that Budd was denied procedural justice because Vere effectively acted as both prosecutor and sole prosecution witness at the trial, while other students debated the extent to which the verdict should hinge on the exigent circumstances of a warship at sea. We spent a second class debating a set of discussion questions on the story. BILLY BUDD lends itself especially well to class discussion because the action centers on a dramatic trial, and because the text is abounding in juicy quotes. For instance, when Vere realizes that Budd has killed Claggart, he exclaims: “Struck dead by an angel of God! Yet the angel must hang!” It not only marks a dramatic turning point, but encapsulates one of the story’s central tensions in twelve words, thus serving as a ready-made conversational starting point.

One cautionary note – the writing style can make for difficult reading at times. The flowing complexity of the sentences often rises to the level of high art, but other times is just plain hard to follow, at least for these eyes, and I suspect for many students as well. With the aim of preventing students from becoming discouraged with the story’s early chapters, when the connections with a law-related course have not yet become clear, I encouraged students to stick with the story until the “good parts,” at least from a jurisprudential standpoint. I think this may help to ensure students stay around long enough to be grabbed by the drama of Budd’s trial. With that one caveat, I highly recommend BILLY BUDD for use in the classroom for courses in law and politics, and especially for courses engaging questions about natural justice and positive law, social contract theory, and criminal responsibility.

---

© Copyright 2008 by the author, Stephen A. Simon.

Continue Reading...

SATURDAY

by Ian McEwan. NewYork: Anchor Books, 2006. 304 pages. Paper 14.95. ISBN: 9781400076192.

Reviewed by Lynne S. Viti, Writing Program, Wellesley College. Email: lviti [at]wellesley.edu.

pp.340-343

Ian McEwan’s compact novel, set in London soon after 9/11, portrays twenty-four hours in the life of middle-aged neurosurgeon Henry Perowne, whose privileged and seemingly protected world is disrupted by a series of events, each more disturbing than the last. Perowne awakens before dawn and out of his window, observes what seems a bad omen, a plane appearing to fall from the sky, provoking in him fleeting images of fundamentalist hijackers. (The television news commentator later explains that a Russian cargo plane engine has caught fire and forced the aircraft to land). As the day begins, Henry’s thoughts turn to current politics as well as family matters. Tony Blair is keen on Britain’s joining the U.S. invasion of Iraq to bring down Saddam Hussein, and thousands of Londoners are taking to the streets this day for a mass protest of Britain’s involvement in the Iraq military action. The Perowne family is gathering for a visit home from Henry’s daughter Daisy. In her twenties, an Oxford graduate and poet whose first volume has just been published, she’s arriving from Paris. Her younger brother Theo, a blues guitarist with an international following, is home to play a gig in London. Henry’s wife Rosalind, a successful lawyer for a London newspaper, and her father John Grammaticus, a distinguished poet with an appetite for spirits and wine, is also expected for the family celebration this night. Through all of these vignettes runs Henry Perowne’s incisive intelligence, not knowledge of poetry, of which he knows little despite his daughter’s attempts to educate him, but about the workings of the human neurological system, what can and does go wrong, and what can be done to repair those who suffer from brain tumors, lesions, cerebral bruises, crushed skulls.

What at the novel’s outset promises to be a routine Saturday for Henry—a strenuous game of squash with an American colleague from the hospital, visiting his elderly, Alzheimers-afflicted mother in her nursing home, stopping at the fishmonger’s to buy the makings for the evening’s festive meal—devolves into two separate harrowing encounters with criminal elements from London’s seedier side. As he motors to his squash date, a policeman waves him down a closed-off street near the anti-Blair demonstration. Henry drives “with unconscious expertise into the narrow column of space framed on the right by a kerb-flanked cycle path and on the left by a line of parked cars, “but he misjudges the distance between his Mercedes and a parked car. He hears “the snap of a wing mirror cleanly sheared and the whine of sheet-steel surfaces sliding under pressure as two cars pour into a gap wide enough for one” (p.81). It’s a common enough urban fender-bender—Henry’s car has knocked off the side mirror of a red BMW, “a vehicle he associates for no [*341] good reason with “criminality, drug dealing” (p.88). A bit arrogant and high-handed, impatient to get to the gym, Henry suppresses his road rage. He curtly informs the men he won’t give them cash, only his insurance details. Presently, Henry is punched by Baxter, the BMW owner, who delivers “a blow that’s aimed at Perowne’s heart...lands on his sternum at colossal force...They slam his back against a chain-locked double door in a recess”(pp.92-92). As the men ready themselves to beat him, Henry notices Baxter’s odd and unpredictable movements and quickly diagnoses these as the deteriorating effects of Huntington’s disease with its attendant tremors and sudden emotional outbursts. Taking a chance, knowing that “early onset tends to predict the paternal gene,” Henry confronts Baxter: “Your father had it. Now you’ve got it too” (p.95). The thug sends his fellows down the street; a curbside medical consultation ensues. Henry explains to an incredulous Baxter that there are new procedures, medications, exercises that can forestall his complete descent into the disease. Before Baxter can call his men to take up where they left off, Henry slips away “while the possibility remains that he can still rescue his game” (p. 100).

Perowne’s routine Saturday routine resumes, but with an undercurrent of discomfort. Over the course of the day the red BMW ominously appears and reappears in his rear view mirror. That evening, Baxter and his mate Nigel accost Mrs. Perowne as she is returning from work and force their way into the house. A chilling interplay between the enraged thug, Baxter, and the Perowne family rivets the reader for the next thirty pages. Even as Baxter breaks the father-in-law’s nose and holds a knife to Rosalind Perowne’s neck and threatens to use it, Henry can’t help dwelling on his clinical diagnosis of the intruder: “the unique disturbances, the individual expression of his condition—impulsiveness, poor self-control, paranoia, mood swings, depression balanced by outbursts of temper” (p.217).

After the intruders force Daisy to strip naked, presumably to sexually assault her, she succeeds in distracting and then calming Baxter by twice reciting Matthew Arnold’s “Dover Beach.” Promising to show Baxter the details of a new clinical trial for Huntington’s patients, Henry lures him upstairs to the study. Henry disarms Baxter and together, Henry and his son hurl the intruder down a flight of stone stairs to unconsciousness. Henry Perowne calls an ambulance, stabilizes his assailant until the medics arrive and, in the end, is called to the hospital to operate on the man. This allows the reader to reflect at length on Henry’s belief that Baxter acts as he does because of his medical condition, and thus bears scant responsibility for his crimes. As Henry sees it, “No amount of love, drugs, Bible classes or prison sentencing can cure Baxter or shift him from his course,” the inevitable and premature slide into hallucinations, round the clock nursing home care, assuming there’s the money for it, and an utterly undignified death (p.217).

This novel lends itself well to class discussion and student research within several sorts of law-based courses: law and literature; criminal law; law and medicine; and philosophy of law. The [*342] shadow of the law and snippets of urban crime loom large over every section of the book. This is the metropolis of London in the early days of our new century. A teenage drug addict and her abusive boyfriend argue in the square outside Perowne’s window. The Cockney cleaning lady at Perowne’s hospital claims her son was wrongfully fingered for an armed robbery though he has an alibi. Baxter and his cohorts emerge from the Spearmint Rhino, a strip club, moments before Henry Perowne’s fateful shearing-off of the red BMW’s side-mirror. Crime follows crime: an assault and battery first on Henry, and later on his father-in-law; the home invasion; the assault on Rosalind and the others with the French kitchen knife Baxter holds against her throat; criminal trespass, and the measures Henry and his son take to defend themselves. The police in London heartily approve of this self-help remedy: “The detective laughed out loud when Theo asked him whether he and his father had committed any crime in throwing Baxter down the stairs” (p.240).

Additionally, McEwan’s focus on what crime feels like from the victims’ side is revealing. When Henry is called to the hospital to perform emergency surgery and he reveals to his wife that the patient with the brain swelling is indeed Baxter, she says, “You’re not thinking about doing something, about some kind of revenge, are you?” (p.246) After Henry returns from the successfully procedure on Baxter, Rosalind admits that she was the one who wanted revenge, though at last she relents a bit, happy that Baxter will “ live to face charges” (p.275). The after-effects of the Perownes’ shared suffering at the hands of Baxter and Nigel manifest in their desire to get back to normal as quickly as possible. At the end of this evening all sit down to their meal of seafood and wine. They want to be “retuned to the web of kindly social and familial relations, without which they’re nothing” (p.238).

In SATURDAY, McEwan raises troubling and complex questions about Huntington’s disease, mens rea and criminal responsibility. Students of law and political science are keenly interested in discussing the relationship between a neurological condition and crime. Can someone like Baxter whose mental status is questionable, be truly capable of forming a criminal intent? Does his Huntington’s disease, a condition he has inherited from his father, constitute a permanent and ever-intensifying diminished capacity defense for his actions against Henry Perowne and the Perowne family? If the Perownes were to be unsuccessful in persuading the Crown Prosecutor not to bring charges against Baxter, if he were brought to trial, could he make a successful plea of not guilty by reason of Huntington’s? In the end, Henry does not wish “to pursue charges” against Baxter: “Baxter has a diminishing slice of life worth living, before his descent into nightmare hallucination begins” (pp. 287-288). McEwan argues that Perowne and his wife, his children and his father-in-law would “all be diminished by whipping a man on his way to hell.” (p.288) Baxter should not be prosecuted, but pitied. As Perowne muses about his assailant, “…because the door of his consciousness is beginning to close, he shouldn’t pursue his claim from a cell, waiting for the absurdity of his trial to begin” (pp.288-289). [*343]

Indeed, McEwan asserts that society’s very notion of what constitutes a crime may be faulty, and ought to be revised in light of the knowledge today’s neuroscience provides. Understandably, students are deeply uncomfortable with these questions and the lack of clear answers. What better starting point for a genuine exploration of what the law is and should be, what the law should do to protect citizens, what constitutes a crime, and when the law should take notice of deep and irremediable flaws in the offender’s genetic code?

REFERENCES
Jensen, Per et al. 1998. “Crime in Huntington's disease: a study of registered offences among patients, relatives, and controls,” in JOURNAL OF NEUROLOGY, NEUROSURGERY AND PSYCHIATRY 65: 467-471.

---

© Copyright 2008 by the author, Lynne S. Viti.

Continue Reading...

TO KILL A MOCKINGBIRD

by Harper Lee. Originally published in 1960. New York: Lippincott/Harper & Row. Harper Perennial Modern Classics, 2002. 336pp. Paper. $12.95. ISBN: 9780060935467.

Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania. Email: richard.glenn [at] millersville.edu.

pp.335-339

It is a wise practice for book reviewers to disclose up front biases that may affect their reviews. So here is mine: TO KILL A MOCKINGBIRD has been my favorite fiction text since I first read it in an honors English class in eighth grade. I have read it regularly since. One of my most prized possessions is a signed copy of a first edition, inscribed, “To Richard . . . With best wishes, Harper Lee.” I have been to Monroeville, Alabama, Harper Lee’s hometown and the model for the fictional town of Maycomb. I have visited the courthouse, traveled the “route” from the elementary school to the Finch residence, and even have a piece of bark from one of the “trees” that sat on the edge of the Radley property. Atticus Finch is my literary hero. And I have never forgotten the novel’s lessons about tolerance and justice.

The novel is set in the depression-era South. Maycomb is a typical small southern town - the principal recreation is church (Protestant only); the climate is hot; and the races are segregated. The story is narrated by Jean Louise Finch. Scout, as she prefers to be called, is a feisty, preternaturally perceptive, and precocious six-year old. Her vocabulary rivals that of many college students. Scout’s playmates are Jem – her older brother by four years – and Dill Harris, a six-year old who lives in Meridian, Mississippi, but visits his aunt in Maycomb each summer. (Truman Capote, a childhood friend of Lee’s who lived with his aunt in Monroeville, served as the model for Dill.) Atticus – Scout and Jem’s father – is a simple lawyer, a part-time state legislator, and a respected father and community figure. He walks almost everywhere he goes. Calpurnia, the Finch’s black housemaid, is a stern, motherly figure; she has earned the confidence of Atticus and assists him in raising the children. (Scout and Jem’s mother passed away when Scout was two.)

Throughout their first summer together, Scout, Jem, and Dill execute various plans to get a neighbor, Arthur “Boo” Radley, to come out of his house. Their efforts are humorous but unproductive – in large part because they are too frightened of this “malevolent phantom” who has not been seen for fifteen years. According to legend, Boo once bit off his mother’s finger, is chained to his bed, and dines on cats and squirrels.

That fall, Scout enters first grade. Her adjustment to formal education is difficult. She especially does not like the new way of “teachin’” called the Dewey Decimal System. When Scout brags in class that Atticus taught her to read many years ago, her instructor informs her that she will take over that responsibility and “try to undo the damage.” The temperamental Scout [*336] sulks when she is told that her father “does not know how to teach.” She is also disappointed that her teacher is uninformed about the peculiarities of her students – such as the poverty-stricken yet fiercely proud family of Walter Cunningham. When Scout complains about these misfortunes to her father, Atticus offers her a “simple trick”: “You never really understand a person until you consider things from his point of view” (p.36).

Traveling to and from school each day, Scout and Jem pass near the Radley home. They routinely discover various “gifts” – chewing gum, Indian-head pennies, twine, a medal, and a pocket knife – in a knothole of a live oak tree at the edge of the Radley property. Their attempts to establish communication with the gift-giver are stymied when Nathan, Boo’s older brother, cements the knothole.

When Dill returns the next summer, the trio renews its efforts to extricate Boo. The efforts are never successful and regularly result in misadventures, like the time when the three got close enough to the Radley house to be greeted by a shotgun blast from Nathan. As he is fleeing, Jem loses his pants when they catch in the fence. Later that night, Jem returns to retrieve his pants. He finds the pants neatly folded on the fence with the torn fabric sewn up. That fall, as the siblings are watching a neighbor’s house burn, someone surreptitiously slips a blanket around their shoulders. They are convinced that Boo did it, and thus inform their father of their many adventures at the Radley’s place. Clearly, Scout and Jem are having difficulty reconciling what they have heard about Boo with his acts of kindness.

A second story-line begins when Atticus agrees to defend Tom Robinson, a black man accused of raping a young white girl named Mayella Ewell . Some have speculated that this story line is part-autobiographical (Shields, 2006). Lee’s father, a lawyer, unsuccessfully defended two black men accused of rape in 1919. Others suggest that the inspiration for Tom Robinson came from the case of Walter Lett – a black man accused of raping a white woman near Monroeville in 1934 (Bigg, 2007). When the ever-curious Scout asks her father if he is going to win the case, Atticus replies, “No . . . [but] [s]imply because we were licked a hundred years before we started is no reason for us not to try to win” (p.84). As a result of their father’s actions, Scout and Jem endure taunts from their schoolmates and dismay from their relatives. Atticus encourages them to respond with kindness. After all, he tells them, the term “Nigger lover” means nothing – “like snot nose” (p.117). The night before the trial, Atticus goes down the county jail to protect Tom from a lynch mob led by Mr. Cunningham, whose son Walter is a friend of Scout and Jem. Scout unwittingly engages Mr. Cunningham in a conversation about his son, which shames him and results in the dispersal of the mob.

During the trial, which Scout and Jem watch with the town’s black citizens from the “colored balcony,” Atticus demonstrates convincingly that Tom did not rape nor harm Mayella. He offers evidence that Mayella had come on to Tom; been caught by her father – the often drunk and temperamental Robert [*337] E. Lee (Bob) Ewell; and then accused Tom to escape her shame and her father’s wrath. The critical points in the trial come when Mayella admits that her father regularly assaults her; and Atticus shows that Tom could not have blackened Mayella’s right eye because of his crippled left arm. But “Christian judges [cannot] make up for heathen juries” (p.228); Tom is convicted. In one of the most poignant passages of the novel, the folks in the “colored balcony” rise as one as Atticus exits the courtroom. Scout is too focused on her father to see the tribute. “Miss Jean Louise,” Reverend Sykes says in a distant voice, “stand up. Your father’s passin’” (p.224).

Both Scout and Jem are disillusioned and retreat into despondency. A neighbor, Miss Maudie Atkinson, attempts to console them: “[T]here are some men in this world who were born to do our unpleasant jobs for us. Your father’s one of them” (pp.227-228). Scout’s take is more juvenile yet equally insightful: “I know why Boo never comes out. He wants to stay inside” (p.240). Tom, tired of the white man’s chances, decides to take his own; he is shot while trying to flee prison. A townsperson compares his death to the “senseless slaughter of songbirds,” picking up on an earlier theme in which Scout is told that “it is a sin to kill a mockingbird [because they] don’t do one thing but sing their hearts out for us” (p.98).

Though Tom was convicted, Bob believes that he has been proven a liar and a fool. He confronts Atticus and spits in his face. Atticus does not respond; all he says to his family about the encounter is, “I wish [he] wouldn’t chew tobacco” (p.230). Bob intimidates Tom’s widow, burgles the judge’s home, and attacks Scout and Jem on their way home from a Halloween pageant. That attack occurs near the Radley property. Boo intervenes, fatally stabbing Bob. To protect Boo’s privacy, the sheriff insists that Bob stumbled on a tree branch and fell on his own switchblade. When the sheriff concludes his investigation, Boo wants to return home but he is scared to do so alone. Scout escorts Boo home, hand-in-hand. In the final passage, Scout, having realized Boo’s humanity and goodness, embraces her father’s admonition always to appreciate people’s good qualities and understand their bad ones.

I have never assigned TO KILL A MOCKINGBIRD in any of my courses. The novel addresses so many important themes, however, I think aspects of it could be taught in courses across a variety of disciplines, although perhaps better suited for high school than college students. The maturation of Scout and Jem could be the basis for a discussion on adolescent psychology – the growth, development, and behavior of children; children making sense of the world in which they live; and even the difficulties that children must face when thrown into adult situations. The philosopher could explore the co-existence of good and evil and theories of social justice. The novel could provide the student of American history with a better understanding of race relations and racial prejudice. A sociology class might be interested in the themes of class conflict and mob violence. “Why reasonable people go stark raving mad when anything involving a Negro comes up, is something I don’t pretend to understand,” Atticus confesses during [*338] the trial (p.97). A professor teaching about the American South – with its rich and culturally complex history – would do well to consider the novel as a starting point.

English teachers assign the text more often than others. The novel has rich characters – some courageous and humble; others cowardly and proud; most all conflicted. The story is enjoyable – two plots traveling along parallel tracks until converging at the conclusion – and told from the perspective of a young girl whose childhood observations of adult situations have a way of sticking with the reader. The characterization – the interplay of the story line and the interaction between and among the characters – is effective. The elements of this novel – setting, character, plot, style, and form – enable the student to begin the process of becoming a critical reader by learning that there is more to reading fiction than simply being able to tell “what happened.” The novel is also full of wonderful aphorisms; the lines of the characters are memorable and worth repeating. “I never loved to read. One does not love breathing” (p.24); “A Bible in the hand of one man is worse than a whiskey bottle in the hand of another” (p.52); and “Atticus was feeble. He was nearly fifty” (p.97) are three of my favorites. And the moral of the story – the importance of looking for the good in people – echoes across generations.

As wonderful as TO KILL A MOCKINGBIRD is, I do not think it is an appropriate text to assign in political science courses. It is not about government; nor is it about politics. And it is most certainly not about law. While the trial of Tom Robinson is a focal point of the novel, the discussions of courtroom procedures and the law are far too simplistic for academic consideration. This is not a criticism of the book; the book was not intended for such purposes. The closest one gets to any topic worthy of discussion in a pre-law class might be the use (or misuse) of the jury system. While the jury system has been generally regarded by the public at large as a laudable instrument in the quest for justice, TO KILL A MOCKINGBIRD reminds the reader that the jury system has many shortcomings – most of which are amplified in cases with racial overtones. Herbert Spencer once called a jury “a group of twelve people of average ignorance.” Perhaps Harper Lee had a similar thought in mind when the jury, in spite of overwhelming evidence to the contrary, convicted Tom Robinson.

But if I were to assign the novel, I think it would be most useful in a course on civil rights and civil liberties. A section of that course, as I teach it, looks at the rights of persons, often minorities, who have been accused of crimes. Classroom dialogue is improved when students are familiar with the history of racial prejudice – in the public squares and in the courtrooms – in the United States. TO KILL A MOCKINGBIRD is at the intersection of civil rights and civil liberties. I know that Tom Robinson is a character in a depression-era novel. But hundreds of real black men – from the Scottsboro Boys to Ed Brown to Emmitt Till to James Chaney – suffered real injustice at the hands of an all-white jury or in the hands of an angry white mob. Tom Robinson is as real to me as those persons. [*339]

REFERENCES:
Bigg, Matthew. September 23, 2007. “Novel Still Stirs Pride, Debate: “Mockingbird” Draws Tourists to Town Coming to Grips With Its Past.” THE WASHINGTON POST.

Shields, Charles. 2006. MOCKINGBIRD: A PORTRAIN OF HARPER LEE. New York: Henry Holt and Company.

---

© Copyright 2008 by the author, Richard A. Glenn.

Continue Reading...

THE TRIAL

by Franz Kafka. First published in 1925. Many editions available. Translated and with a preface by Breon Mitchell. New York: Schocken Books, 1998. 276pp. Paper $13.00. ISBN: 9780805209990.

Reviewed by Adelaide H. Villmoare, Department of Political Science, Vassar College. villmoare [at] vassar.edu.

pp.332-334

Franz Kafka’s THE TRIAL offers a mind bending experience, where the reader is on edge waiting for the trial to start, although it is clear that something has begun with the very first sentence: “Someone must have slandered Josef K, for one morning, without having done anything wrong, he was arrested” (p.3). The unorthodox, if not outright weird, way in which the case against K proceeds pushes students to examine the suppositions they bring to the study of law and criminal justice and, more generally, to consider their ideas about justice.

The simple outline of the story is that Josef K, a kind of bourgeois everyman working hard to succeed at his bank, is arrested at home one morning. He is permitted to continue on with his “ordinary life” (p.17), encounters a variety of people associated with the court, many, if not all, of whom are corrupt, hires and fires a lawyer, while in a cathedral gets told an indecipherable parable about access to law, and, a year after his arrest is executed. From the first morning to his execution K is inexorably drawn into his case, where he never learns the charges against him. The labyrinthine system entrapping him remains opaque despite its power and presence everywhere he goes. K arrives at court when called and even when not called. He becomes mired in his case, from which he is unwilling and unable to extricate himself. K offers some slight resistance to the forces at work but in the end yields to his execution. With twists, multiple stories, play-like features, there is nothing simple or straightforward about the structure or content of anything in THE TRIAL except K’s death at the end.

I have used THE TRIAL in one translation or another for years as the initial text in my intermediate level “Law, Justice, and Politics” course on US civil litigation and the criminal justice process. The principal reason to begin with Kafka is that readers find it difficult, if not impossible, to anticipate events (even though the end could be seen as inevitable). What one expects to happen does not, and what does happen is unexpected. The scene with the flogger, for example, could not be foreseen. When K. hears groans from a junk room near his office at the bank, he opens the door to find the two guards who had arrested him being whipped -- ostensibly because K had complained about their improper behavior. While the discussion among K, the guards, and the flogger speaks to questions of corruption and justice that have already surfaced, it nonetheless plays out as a very strange and disconcerting episode.

Examining why something is unexpected requires a consideration of what is expected. Students often begin with suppositions about what usually occurs in the criminal justice process. They anticipate that defendants are arrested, [*333] tried or engage in plea bargaining, are convicted or acquitted and that police, courts, and judges all have recognizable trappings. Questioning their assumptions leads to discussion about why they have such expectations and how those expectations affect their understandings. Students articulate what they see as normal, what they see as fair. As they grasp what is occurring in THE TRIAL, they look at themselves and their own perceptions and values in relation to their analysis of criminal justice.

That examination frequently produces the observation that the US criminal justice process is notably different from K’s. K appears to live in a totalitarian country very much at odds with the US. In light of the story this position is reasonable; the courts and their minions are everywhere: in attics, behind apartment doors, in the cathedral. There is no line between those working for or in the know about the legal system and those outside it; it is virtually impossible to distinguish insiders from outsiders (one could say that K alone is on the outside, although by the end he is thoroughly pulled into the system). While they may hire lawyers to represent them, the accused (who are from the upper classes) face grim alternatives. According to the painter, one seemingly authoritative source, the possible outcomes are: an apparent acquittal, protraction, or actual acquittal (but the painter knows of no actual acquittals) (pp.152-153). Given these outcomes and his experiences, I ask my students, why does K think to himself early on that he “lived in a state governed by law, there was universal peace, all statutes were in force”(6)? Was he simply ignorant (despite his high status in society and at his bank)? Are there similarities between K’s criminal justice system and ours, between K’s suppositions and ours?

The disorienting quality of the book provides an excellent starting point to stir students’ minds, to get them to look at their own assumptions about legal process, and to involve them in comparing K’s world with their own. Because the book is fiction it does not bear the burden of having to prove an argument. The story pulls the reader into the frustration, the anger, the lightheadedness (which K experiences when he visits the law offices where the atmosphere is thin, although those working there and their clients have adapted to the lack of oxygen), the oppressiveness, and the inability to predict or control events. Students may sympathize with K’s situation, but they find him unlikable. He is not easy to identify with in part because he is so isolated from other human beings, including his family. The story is about his case, the relentlessness of the legal processes, the corruption of the personnel, and the power and opaqueness of law itself. (represented in one instance as pornographic pictures).

THE TRIAL can be used in courses presenting an overview of criminal justice processes or in more specialized courses. An interdisciplinary course I co-taught with Professor of Humanities and playwright John Henry Davis looked at trials as theater. The term “trial” in this context referred to various ways in which people are tested, judged, and punished not only through formal legal trials but also through Congressional hearings, personal conflicts, lynching, and executions. K is tried in several ways (e.g. his honesty is tested when he offers a bribe to stop the flogging, and his standing at his bank is challenged by his case). The novel, thus, opens up [*334] discussion about various meanings of the word trial and their relationships to one another. In this course we looked at the role of audiences and their responsibilities as witnesses (e.g. to lynchings). Characters in the novel are familiar with K’s case, and people appear as audience (e.g. to his arrest and the walk to his execution). We weighed moral obligations of people witnessing injustices, for example, and made connections between lynchings and K’s execution.

The novel also raises critical questions about gender. Most of the women in K’s society are prostitutes in one form or another. The washer woman he encounters in the courtroom in the suburb slums and the maid who tends to K’s bedridden lawyer are abused by and themselves exploit their connections with the legal system. Women are associated with the corruption and manipulativeness of the law. One could certainly draw on these images to explore ways in which criminal justice has disciplined and used gender and women in particular.

THE TRIAL is a versatile teaching tool, open to various interpretations. Where one person might argue that K could have made greater efforts to resist his fate, another might conclude that this rule bound man was incapable of such action, and, even if he were to resist, the outcome would have been the same. Different translations also invite different interpretations. In an earlier version of Breon Mitchell’s translation the first sentence reads: “Someone must have been telling lies about Joseph K., for without having done anything truly wrong he was arrested one fine morning.” The placement of the word “truly” makes K at the outset appear less innocent than he does in the Muir translation (Kafka 1968) and in Mitchell’s current version. Mitchell concluded that his initial translation of this sentence was "too interpretive" and that reader should allow his understanding of K's culpability to develop as he reads the novel (conversation with Dr. Mitchell 1/30/08). Mitchell’s “Translator’s Preface” is a fascinating read that contends that his translation makes clear the futility of resistance (xxiv). While I think that position is contestable, I find his discussion most instructive about possible readings of the novel.


After many years of reading and teaching THE TRIAL I still enjoy the process of discovery that my students engage in when talking about it. The text is dense with images, unsettling situations, and perplexing characters of which I have never tired. Kafka not only hurtles my students into the courses in which I have used it, it revs me up for a course I have taught for more than thirty years. While all the other books in the course on law and justice have changed frequently, THE TRIAL has been the one steady, disquieting text.

REFERENCE:
Kafka, Franz. 1968. THE TRIAL. Translated by Willa and Edwin Muir. Revised edition with additional material translated by E. M. Butler. New York: Schocken Books.

---

© Copyright 2008 by the author, Adelaide H. Villmoare.

Continue Reading...

BRAVE NEW WORLD

by Aldous Huxley. Originally published, 1932. Many editions available. New York: Harper Perennial. 268pp. Paper. $13.95. ISBN: 9780060850524.

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. Email: Tlightcap [at] lagrange.edu.

pp.328-331

Today, it seems almost de rigueur to regard speculations about the future in a dystopian mode. No more LOOKING BACKWARD, only THE ROAD; no more THINGS TO COME, only BLADERUNNER. But this was not always so and it is instructive to think of the origins of this change in tastes. Part of the impetus was, of course, the unparalleled disasters of the twentieth century, many of them the result, in part, of utopian schemes for social reconstruction and their horrendous consequences. But there is an earlier and, in many ways, more influential strain of thought that began this trend, and BRAVE NEW WORLD is its beginning. Huxley’s masterpiece was not the first work of speculative fiction to have a negative cast and, revealingly, was not a great popular success when originally released. BRAVE NEW WORLD, however, has proved one of the most long-lived and profoundly disturbing works of fiction written in recent times. Why?

Before BRAVE NEW WORLD was written, there existed a generally “progressive” view of the future. Huxley’s book burst on a world still enthralled - even after the slaughter of World War I - by visions of new societies empowered and realized by scientific progress. The inspiration of the book was J.B.S. Haldane’s essay, “DAEDALUS, or Science and the Future.” Originally a talk delivered in 1923 to the “Heretics,” a Cambridge society, DAEDALUS is far from a paean to progress. It does, however, accept that many, if not all, human physical, psychological, and social problems will yield to scientific remedies, albeit with what may seem incongruous results and losses to civilization.

Specifically, Haldane raised several possibilities. First, the need for economic stability, whatever the system used, would slowly replace the intra- and international competition that now characterizes production with efforts to thoroughly rationalize industrial processes world wide. Second, biological research would lead to the application of industrial production techniques to human reproduction with attendant selection processes that would greatly reduce the incidence of genetic defects and greatly improve overall health. Third, advances in medicine would render death, disease, and, with proper endocrinal medication, even old age itself much less formidable than in the past. Finally, Haldane speculated that the use of more efficient behavior modifying drugs, scientifically founded religion, and new mores rising from freeing humans from reproduction and family life would combine to adjust individuals to societies more efficiently.

All of these sometimes eerie predictions were accompanied by a tone of inevitable resignation to a changing, but, [*329] perhaps, better future. Huxley, who knew Haldane well, takes these ideas and portrays the society Haldane predicts in BRAVE NEW WORLD. Since he was an accomplished satirist, however, the results he imagines take on a droll and ultimately disturbing character. Here is the reason that the book has been generally recognized as a classic: all of Haldane’s predictions about the relief of mankind’s ills take place and the result, when it is not ridiculous, is horrifying.

The motto of Huxley,s World State - Community, Identity, Stability - is exactly what the future has delivered. The foundation of the BRAVE NEW WORLD is a caste system based on mass production of cohorts of genetically identical human beings. Stability is guaranteed by a steady, planned production of entire genetically designed populations and a system of subliminal education that trains entire castes for work and consumption. No one goes hungry or homeless because there are no economic dislocations and everyone is gainfully employed. Further, no one is depressed or mentally disturbed because the major strains in life have been largely eliminated by sexual communalism, the use of safe, highly potent psychedelic drugs (soma), and the elimination of economic and status stresses. Identity is insured by the genetic impermeability of castes and by the slots in life everyone is trained to occupy. No one is concerned about economic and social inequalities because both have been greatly reduced (they are inefficient) and because genetic differences justify what status differences remain. Community is sustained by the abolishment of individual sexual and personal attachment and the adoption of a world religion based on worship of an abstraction of production itself (“Our Ford”) and solidified by ceremonies based on soma-induced group sexual encounters. No one feels separated from others because individual conditioning, sexual satiation, caste position, and religious condemnation of individuality literally leave no time for anyone to think about or for themselves. No one fears even death itself: life spans are planned and death is simply an end to the organism, not the community.

There are two problems in paradise, however. First, the Alpha Plus managing caste has to be individually produced to insure the correct level of intelligence and cannot be subjected to the same heavy-handed conditioning as others. They must have an ability to take independent decisions and, within limits, manage. This automatically introduces a wider range of variation in the caste with attendant risks of outlying individuals. Those who do not fit in are offered a choice: go into training for the corps of “controllers” who oversee the state or accept exile to islands reserved for misfits. Second, the World State, unlike many dystopian fantasy regimes, has no interest in subsuming all territory within it. Only those areas that can be developed at an acceptable cost are included. Those that cannot be – and the people who occupy them – are left to their own devices.

The plot in BRAVE NEW WORLD revolves around these limitations. The story focuses on two Alpha-Plus misfits: Bernard Marx, small, unattractive, and shy, and his friend, Helmholtz Watson, unusually handsome, intelligent, and physically gifted. These two, uneasily [*330] aware of their individuality, have a difficult time for different reasons. In an effort to impress Lenina Crowne, an attractive and “wonderfully pneumatic” young woman, Bernard takes her to a “Savage Reservation” in the American Southwest to see how those outside the World State live. There they encounter the Savage, the natural born son of a woman abandoned in the reservation earlier by Bernard’s boss, the Director of Hatcheries (i.e. production of human beings) for London. The return of the Savage and his mother to “civilization” gives Huxley a chance to contrast the Savage’s behavior and values with those of the inhabitants of the BRAVE NEW WORLD. The Savage’s unrequited love for Lenina and the constant misunderstandings this leads to (she tries to seduce him, triggering an orgy of rejection and repentance in return) is a major element of this part of the plot.

Finally, Bernard, Helmholtz and the Savage are brought before Mustafa Mond, the Resident Controller for Western Europe, who had authorized the Savage’s visit to London as a social experiment. Bernard and Helmholtz are sent to islands, but the Savage is allowed to live on his own in the English countryside. After a period of mortification and prayer, he is found by the news media and descended upon by sightseers. In a final visit, Lenina appears and, under the influence of soma, the Savage consummates their relationship. The remorse he feels the next day for betraying his beliefs leads to his suicide.

Why does this book generate such continuing interest? The reason is straightforward enough, I think: BRAVE NEW WORLD tells us that the dreams of progressive utopias economic and social stability, individual mental and physical health, and happiness for all – can be purchased at too great a price. But it is a commitment to the achievement of these goals that provides the main justification for modern democratic states, and it is the success of the United States in attaining them that is the centerpiece of our national amour-propre. Huxley reminds us of some unpleasant and, in both the past and the present, unfashionable truths. If we use our scientific knowledge to create societies that subordinate individuals to the requirements of efficient production and the structural and cultural stability it requires, we risk destroying individual freedom and, what’s worse, individual dignity in the process. We might create a society, like the one in BRAVE NEW WORLD, where the number of self-reliant adults could, literally, be counted on our fingers.

Let’s face it: this is not a message that 21st century Americans are eager to hear. No matter what our political and social preferences, most of us want a more equal society where individual risks are reduced, where we can consume the fruits of our labors without much remorse, and where the “hurting” of our fellows can be assuaged. We have different roads that we would take to reach these goals, but the mechanisms of mass industrial production and the intensive use of engineering and scientific knowledge, no matter what their effects might be, are presupposed. Different camps have different ways of fooling themselves about ways to avoid the consequences of this commitment, but no one is backing away from it. [*331]

And that is exactly why BRAVE NEW WORLD should be widely used in political science classrooms. What Huxley was trying to point out about the World State, is not that happiness and stability are undesirable, but that happiness and stability have to be achieved by societies that put individuals, not institutions, first. As Huxley says, “In this community economics would be decentralist and Henry-Georgian, politics Kropotkinesque cooperative. Science and technology would be used as though, like the Sabbath, they had been made for man, not . . . as though man were adapted and enslaved to them. Religion would be the conscious and intelligent pursuit of man’s Final End . . . And the prevailing philosophy of life would be a kind of Higher Utilitarianism, in which . . . the first question to be asked in every contingency of life being ‘How will this thought or action contribute to or interfere with, the achievement, by me and the greatest number of other individuals, of man’s Final End’” (pp.ix-x).

This is brought out most clearly in his later utopian novel, ISLAND. On Pala, the South Seas island of the title, all of the tools for social stability used in BRAVE NEW WORLD – sexual communalism and contraception, psychedelic drugs, extensive uses of science, planned economic stability, transcendent religion – are used to help create a self-sustaining society of conscious adults, not an infantile nightmare. But reading Huxley’s prescription for a sane (he uses that term) modern society is enough to see why his masterpiece still causes disquiet 77 years after it was written. Quite simply, we do not want to hear him clearly.

BRAVE NEW WORLD is one of those rare books that is both profound and entertaining at the same time. I have used DAEDALUS, BRAVE NEW WORLD, and ISLAND for several years in a January term course, “Utopias and Dystopias: Images of the Polity in Literature and Film,” with great success. It is a great learning moment when I look at the class after we have discussed BRAVE NEW WORLD and ask, innocently, “But isn’t human happiness what we want?” The book, with or without ISLAND, is sure to provoke discussion in any course examining speculative political fiction, sustainability (the question of what kind of sustainable future we might want is front and center in these books), or modern political ideologies. I think BRAVE NEW WORLD could also be used profitably in an introductory course in political science as a supplemental text. I encourage interested scholars to give Huxley’s great dystopia a chance to enrich their curricula.

REFERENCES:
Haldane, J.B.S. 2008. “DAEDALUS, or Science and the Future.” www.cscs.umich.edu/~crshalizi/Daedalus.html (February 28, 2008).

---

© Copyright 2008 by the author, Tracy Lightcap.

Continue Reading...

SNOW FALLING ON CEDARS

by David Guterson. New York: Vintage Books, 1995. 460pp. Paper. $14.95. ISBN: 9780679764021.

Reviewed by Margaret S. Hrezo, Department of Political Science, Radford University, mhrezo [at] radford.edu.

pp.325-327

Good books have many layers. SNOW FALLING ON CEDARS is no exception. It is the presence of those layers that makes this book an excellent choice for such classes as Law and Society, Sociology of Law, and Introduction to Politics.

At the most obvious level SNOW FALLING ON CEDARS is the story of a murder trial. The issue seems simple: Did one San Piedro Island, Washington fisherman kill another over a disputed piece of property? Kabuo Miyamoto’s father, Zenhichi, dreamed of owning a strawberry farm. A native of Japan, Zenhichi could never become a citizen, so he could not own land. Instead, he entered into an illegal contract with Carl Heine, Sr. to purchase seven acres on the theory that they would legally pass to his son, Kabuo (who was a citizen), when he came of age. Zenhichi had a down payment and made every payment except the final one. But the final payment came due while he and his family were interned in Manzanar during World War II. Carl Heine, Sr. died during the war and his wife returned the money Miyamoto had paid her husband and sold the property at a higher price to a white man. Zenhichi also died before returning to San Piedro.

Kabuo Miyamoto felt those seven acres were stolen from his family. When he heard that the strawberry farm was for sale again he tried to buy the seven acres, only to find that the original owner’s son, Carl Heine, Jr., already had put a down payment on the entire property. Kabuo approached Carl Jr. asking Carl to sell him the seven acres. Carl said he had to think about it. And then Carl drowned on the fishing grounds. Was it an accident or murder? The sheriff and the prosecutor opted for murder at the hands of Kabuo Miyamoto. The only physical evidence was the presence of Carl Heine’s blood on the handle of Kabuo’s fishing gaff. But there was testimony that Kabuo gave Carl’s mother ‘dirty looks,’ that he was an expert at kendo, and that the head wound found on Carl Heine was similar to one that would be inflicted by a “right handed Jap” wielding a “gun butt.” And there was the fact that to the islanders Kabuo Miyamoto reminded citizens of the pictures of Japanese soldiers in propaganda films—“his aspect connoted dignity. And there was nothing akin to softness in him anywhere, no part of him that was vulnerable. He was, they decided, not like them at all” (p.412).

He was “not like them at all.” That phrase is what increases the layers of complexity to the story. Beneath the surface plot, SNOW FALLING ON CEDARS is a story about a star-crossed love between two teenagers from different cultures; a story about anti-Japanese prejudice in the United States; a paradigmatic story of the outsider and the insider in the contemporary world; [*326] and the story of the embittered Ishmael Chambers, island native, war veteran, newspaper editor, and as a young man, lover of Kabuo Miyamoto’s wife—a man outcast and redeemed by circumstance and choice. It subtly raises issues of equality, freedom, obligation, and justice.

At its deepest level, however, SNOW FALLING ON CEDARS does what the best books about law do. It takes its readers to the heart of what it means to live as a political community—to the place in human beings that evokes ideas about community, meaning and order and attempts to translate those ideas into symbols that can be shared. It asks the reader to consider whether a sense of community with those decidedly different from the majority is possible. It also reminds the reader that the “foreigners” considered the white community just as foreign—just as “Other”—as the white community considered it (pp.199-202). It forces the reader to confront the alienation, apparently rampant in contemporary society, not just of one group from another but of the individual from himself and from all other human beings. Ishmael’s story brings the reader face-to-face with the predominant theme of contemporary political philosophy—man against himself. Finally, this book demands that the reader consider the respective roles of moral choice and accident in human life. These are the layers that make the book most interesting to teach in a political science or law class with a liberal arts focus. This book, like all good works of art, requires a response by the reader. It asks the reader to think about community and her own sense of the political implications of estrangement and the dilemma of human choice in a world that often seems beyond human control.

Estrangement and unity always have been key issues in forming and maintaining political communities. Would Barack Obama have had to make a speech addressing the issue of race in the United States if Americans did not see so many of their fellow citizens as “not like them at all”? Is anyone like each other at all? The subject matter of politics is the “people’s things”—the community. Is politics, in any other sense than the pursuit of power, possible if there are no “people” and, hence, no “people’s things”? Without a political community that shares some common goals and values, is democracy a meaningful concept?

Can there be political community in the absence of free moral choice? SNOW FALLING ON CEDARS emphasizes the importance of human choice and contradicts the view that the universe is random. Carl Heine, the most careful of men, runs down his boat batteries and his engine stops, leaving him adrift in a hazardous fog. Kabuo Miyamoto just happens to be fishing in the same area. By chance, Carl cuts his hand on Kabuo’s fishing gaff. By chance, a freighter wanders off course in the fog. By chance its huge wake reached Carl’s boat just as he was up on the mast cutting off the lantern he’d lashed there as a make-shift signal light. He just happens to hit his head on the gunnel in falling from the mast and lands unconscious in the water where he drowns. Ishmael Chambers finds the evidence that will save Kabuo Miyamoto from conviction for first degree murder by accident. [*327] Ishmael and Hatsue Imada come to love each other by accident. They are pulled apart by forces beyond their control. The war takes Ishmael’s arm and changes every veteran in ways that are hard for their families, friends, and neighbors to understand. No wonder the temptation always exists to blame everything on fate or accident. Does human effort ever make a difference, or is Ishmael correct that “most human activity was utter folly” (p.35)?

If all human action is folly, if human reason counts for little or nothing against the blind forces of accident, then law can never be anything more that what the positivists argue: “the will of the ruler habitually obeyed and backed by threats.” Some, luckier, societies might adopt H.L.A. Hart’s version and add that the will of the ruler is supplemented and limited by rules of recognition, adjudication, and change. In such a society justice can only be the application of correct procedures with no evaluation of either the procedures themselves or the goals they are designed to achieve. Law is arbitrary and justice is merely opinion. So too are equality and freedom. How would societies differentiate between better and worse regimes (something they do often) based on that definition of law? Any conceptions of law and politics based on more than force or whim require a belief in the meaningfulness of human action and a conception of human beings as creatures capable of moral choice. They require a belief that justice is more than something humans make up.

Ultimately, every political community and every set of laws that form the foundation of that society’s pattern of order require some basic societal consensus. The Greeks called it homonoia (like-mindedness). Without that consensus a society has no sense of direction or vision of an appropriate or genuinely human way of life. The challenges of the contemporary world are to reaffirm the reality of human choice and to acknowledge difference so that human societies can form a social consensus that realizes, as Carl Heine, Sr., put it: “People is people, comes down to it” (p.120). Throughout the book, but especially in defense attorney Nels Gudmunsson’s closing argument and Ishmael’s conclusion to the book, the reader finds an affirmation of human beings as moral agents, an affirmation of law and justice as sources of human order, an affirmation of politics as more than power acts or “the authoritative allocation of resources,” and an affirmation of human reason, responsibility, answerability and meaning as the sources of happiness and a flourishing life. As Plato said, politics is concerned with the happiest and most flourishing kind of life. Nels Gudmunsson put it another way: “Will you contribute to the indifferent forces that ceaselessly conspire toward injustice? Or will you stand up against this endless tide and in the face of it be truly human?” (p.419). In the choice to be truly human lies the function of law and of politics.

REFERENCES:
Hart, H.L.A. 1961. THE CONCEPT OF LAW. Oxford: Clarendon Press.

---

© Copyright 2008 by the author, Margaret S. Hrezo.

Continue Reading...

A TIME TO KILL

by John Grisham. Bantam Dell, New York, New York. 515pp. Paper: $13.00. ISBN: 9780385338608.

Reviewed by Laura J. Hatcher, Department of Political Science and Women’s Studies Program, Southern Illinois University at Carbondale. Email: hatcher [at] siu.edu.

pp.321-324

A TIME TO KILL, originally published in 1989, was John Grisham’s first novel. Now, re-released several times, it has also become a bestseller like many of his other novels. But it is not like his other novels. While there are hints in it of the formula that would produce for Grisham one bestseller after the other in the years to follow, this novel has a different feel to it than his others. It poses ethical dilemmas embedded in a social critique that, while perhaps not on a par with a great piece of literature, is thought provoking. In a manner that is both disturbing and intriguing, there is a vindication of vigilantism and revenge killing that drives the plot and, under the right circumstances, could also provide fodder for some very interesting classroom discussions.

For those who have seen the movie based upon the novel but have never read the book, it will provide some surprises. While the most basic outline of the story was retained by the filmmakers, most of the detail and many of the elements driving the novel’s plot are strikingly different. For those interested in thinking about popular culture and the way films and novels portray the law, here is an opportunity to discuss how cultural representations may vary by genre and structure. In part because this is a novel that has a movie connected to it that is often seen on cable television and was a blockbuster hit in the theaters, I’ve included some very basic discussion of the book in contrast to the movie below. If you do use the novel in an undergraduate class, given the prevalence of the movie on cable television, some students may even be tempted to watch it rather than read the book.

The novel, like the movie, opens with a very brutal rape scene. Two white men (“rednecks”, we’re told in the novel) brutalize a little girl named Tonya. It is clear in both the movie and the novel that one reason they picked her was that she is African American. The film shots in the movie sexualize the little girl in unsettling ways, showing her legs, and attending to the way she walks down the road. The book begins with the rape in progress, and presents her already being brutalized. The rapists’ treatment of her leaves us with the clear understanding that they do not view black children as human children. Their racism and sexism comes through in nearly every line of the dialogue.

Tonya calls out for her father, imagines that he’ll come and save her. The role of father as protector is highlighted in the narrative from the beginning. Indeed, one could argue that A TIME TO KILL is a novel about daughters and fathers’ obligations to them to a large degree. After she is found, Carl Lee Hailey, her father, comes home to find the police at the house awaiting the ambulance after finding Tonya left in a ditch, bloody, [*322] beaten, and ravaged nearly to death. Her mother weeps while her father feels immediate guilt for having been slow to come home when his wife called him, but more importantly because he had not protected his little girl from this brutality.

Just as the novel is unflinching in dealing with the details of the rape, Grisham lays out Carl Lee’s carefully made plans to murder the rapists. It is coldly calculated. In Hollywood’s adaptation, Carl Lee plans the murder, but Hollywood did not have him drive all the way to Memphis to buy an M-16 from a fellow Vietnam Vet and ask his brother for help because of his insider’s knowledge of the jail and courthouse. Nor does his brother draw the floor plans of both buildings so that Carl Lee will know where to hide and the best location for the shooting. The planning takes days, not hours. Yet these elements are important features of the book. Not only is it clear in the novel that a few days of planning and thinking go into Carl Lee’s moment of revenge, his right to murder the two men who raped his daughter is discussed within his family (among the males). Moreover, several members of the community – including the sheriff, and the man who will be his lawyer at trial – explicitly state they understand and would likely have done something similar given the circumstances.

It’s noteworthy that most members of the community who play a major role in the novel are male, and it’s a male society that not only condones Carl Lee’s actions, but at times seems to be complicit with them. The women, on the other hand, are left out of this calculation, and do not, in fact, play much of a role in any decision-making throughout the novel until the entrance of Ellen Roark, a law student and anti-death penalty activist, who volunteers to work for the defense on the case for free. But Ellen does not enter the scene until the last third of the novel, and even then she’s a supporting character. Meanwhile, the women are even less important than the law student. Carl Lee’s wife remains supportive of her husband after the murder, and it is not clear that she fully understands what he is planning before the actual act. Nor does her opinion seem to matter to Carl Lee, his brother Lester, or any other member of the family or community. The beautiful young wife of Jake Brigance, his attorney, is the only character who gives voice to the idea that perhaps – just perhaps – murdering the rapists is also wrong (not simply illegal – a fact that many of the characters point out because the law will require certain duties of them despite the justice of the act). Ultimately, however, her husband sends Carla and their daughter back to her own father to be protected when the Ku Klux Klan attempt to bomb her home.

The plans for the revenge murder are made with the legal institutions of Mississippi looming in the background – literally so, as the murder takes place on the steps of the courthouse. Carl Lee is well aware there will be a trial and that he will need a lawyer. The shadows of the law are strong enough that the need for a lawyer and consideration of what will happen during a trial are elements of Carl Lee’s plans, though it becomes obvious as the novel progresses that he did not fully consider the financial implications of a death penalty case for either his trial or his family’s livelihood. Fortunately, there is a lawyer at hand, [*323] one who not only is a “local boy” but also defended Carl Lee’s brother in a murder trial, and won the case.

Indeed, in one of the most intriguing scenes in the novel Carl Lee tells this lawyer, Jake Brigance, what he plans to do and asks Jake to represent him in the trial that will follow. Jake does wonder whether he should tell the sheriff about the possible murder of the two suspects. Jake ponders his interest in the outcome of Carl Lee’s actions. In the movie Jake does not tell the sheriff, something which he finds deeply troubling later; but in the novel, Jake decides the right thing to do is to discuss the situation with the sheriff. In a private conversation, he and the sheriff agree that there would be justice if Carl Lee murders the two rapists, but that it would still be illegal. The sheriff says he is not surprised Carl Lee is considering it, because had it been his own daughter, he is not sure what he’d do. The sheriff tells Jake not to worry because he has already taken the usual precautions. Again, intriguingly, even though he knows Carl Lee is planning murder, he only uses precautions that are “usually” in place – nothing more, nothing less.

In fact, two important themes emerge early in the novel and are the mechanisms for developing most of the story: first, that fathers have a duty to kill men who violate their daughters in such a heinous fashion; and second, this African American father, unlike a white father, will end up going to jail because he is black and the rapists were white. A white father would be understood to be doing what is right, and acting to revenge his little girl. Fathers and daughters figure prominently throughout the novel, and to some extent the justice that the novel portrays is one of patriarchal families and less about liberal legal institutions. The law does not protect enough – it does not do enough, says this novel, to keep our women safe. Instead, men have a right – one might even think perhaps Grisham is suggesting it’s a natural right – to protect their families, and especially the most vulnerable members of their families – their little girls.

Jake needs to give the jury an option for letting Carl Lee go free, and so he prepares an insanity defense. Intriguingly, Grisham’s description of Carl Lee makes it very difficult for the reader to see how Carl Lee might be considered insane in the legal sense, and the strong suggestion in the novel is that the insanity defense is mostly used to get guilty defendants off. There is no discussion of jury nullification anywhere to be found. Instead, it’s a matter of providing the jurors with an “out”, so that they do not feel they have to apply the death penalty in a case where homicide can be justified. There’s something slightly insane about these discussions themselves within the novel. The psychiatrist used by Brigance argues to the defense lawyers that their client does not seem insane, that in the only two other trials in which he served as a specialist, those defendants also were not insane. “They are where they should be,” he says. Yet, he agrees (because he’s a drunk, and he needs money to keep drinking) that he can serve as a witness for the defense in Carl Lee’s case. A defense is needed, and this is the one most likely to get Carl Lee off, but no one thinks he was insane. In fact, nearly everyone (including the guards at the state hospital where the prosecution does their assessment) believes he did [*324] the right thing in murdering these two individuals.

It’s a father’s right, we hear again and again, to murder men who hurt their daughters. The legal system has to run its course, but it must also recognize that Carl Lee is a father who has done the right thing by his child. That this father did not rush home when his wife called him (because he thinks she’s often hysterical, the narrator tells us), and feels enormous guilt because he was unable to protect his daughter in the first place, is not part of the various discussions of insanity in the novel. He was, it could be argued, reacting in a visceral and reactionary way when he murdered these two individuals because he had not acted previously to protect his daughter. And if he has a natural right to protect her, then he also has a duty to do so before harm can occur. When that duty is breached, then, one might argue, he is required to act. But required by whom? How rational is this belief in the right of a father to act on behalf of his daughter? What is rationality, one could ask? Does the law’s notion of sanity really help to capture the situation described in the novel? What is the complex nature between the community’s ideas of justice and the law’s due process?

As I’ve already suggested, the bulk of the novel is taken up in setting up the trial, which does not occur, actually, until the last 100 pages (of over 500). By that time, the reader is well acquainted with lawyers hustling and (unethically) chasing cases, a district attorney interested in becoming a governor and having little interest in justice, and a sheriff who allows his most famous defendant to use his office, plays cards with him, and treats him largely as though he has done nothing wrong despite knowing with certainty that Carl Lee is guilty. Carl Lee, it is clear, is still a stand-up citizen – he would never have broken the law had his daughter not been raped. And, ultimately, Carl Lee is found “not guilty” by the jury of all white citizens. The final arguments in the case do not quite follow the same emotionally charged narrative as in the movie, but Jake Brigance manages to win despite the fact that much has gone wrong with his defense by the end of the novel. It’s his skill that wins the day, keeping Carl Lee from being executed. Justice, the novel suggests, wills out because there is a time when killing is necessary, and the legal system should recognize this. As if the book hadn’t already produced much worth discussing, this conclusion, which is the title of the book, is itself well worth interrogating in any course on law, politics, and justice.

---

© Copyright 2008 by the author, Laura J. Hatcher.

Continue Reading...

ADVISE AND CONSENT

by Allen Drury. Garden City, NewYork: Doubleday, 1959. Limited editions currently available. 616pp. Paper. ISBN: 9780380010073.

Reviewed by Trevor Parry-Giles, Department of Communication, University of Maryland. Email: tpg[at]umd.edu.

pp.317-320

There is something inherently dramatic, something immediately monumental, about the manner in which the United States fills many of the positions of its government. Elections, of course, pit candidates against one another and are filled with drama and action. But the constitutionally prescribed appointments process, for cabinet officials and justices of the Supreme Court among other national officers, also gives rise to narratives and drama that make this fascinating process the stuff of both history and fiction. These events involve colorful characters, dramatic plots filled with tragedy and comedy, and a narrative arc that is clearly defined and routinized to enhance audience comfort and familiarity.

Few fictional treatments of the constitutional appointments process rise to the stature and heft of Allen Drury’s Pulitzer Prize winning novel ADVISE AND CONSENT.

Re-reading ADVISE AND CONSENT (and watching the 1962 Otto Preminger movie by the same name), after a span of several years, and in the aftermath of the end of the Cold War and 9/11, I was immediately struck by how dated this immense novel is and how stuck in the 1950s and 1960s this story remains. In many ways, Advise & Consent would be a fine reading in Cold War history courses or in courses that seek to explain the nature of Cold War politics. As an insight, though, into the nature of the appointments process as currently practiced, it remains locked in its time and would undoubtedly be lost on many contemporary students.

Published in 1959 at the height of the Cold War and in the twilight of the Eisenhower administration, ADVISE AND CONSENT tells the story of the nomination of peace-loving diplomat Robert A. Leffingwell to be Secretary of State. Unfolding in “books” from four senators, the story proceeds quickly and in rich, complex detail, aided no doubt by Drury’s intimate knowledge of how the Senate worked based on his experiences as a Washington political reporter. The first edition of ADVISE AND CONSENT numbered 616 pages and the level of exegesis and dialogue is deep and broad. All layers of the advice and consent process are covered—from gripping hearing testimony to vitriolic floor debates, from the machinations of the White House to the cloakroom deals in the Senate. It’s all here.

Not only does ADVISE AND CONSENT access the political dynamics of the Senate’s advice and consent to presidential nominations, the novel also delves deeply into the personal stories of the characters who must manage and judge this process. One widowed senator, the majority leader, is intimately involved with a Washington socialite who hosts the must-go-to parties in D.C. [*318] There’s the past of the nominee, who flirted with communism while teaching in Chicago and is forced to confront this aspect of his personal history to secure confirmation. Another senator, a married Mormon from Utah, is blackmailed by a colleague who has discovered the senator’s intimate, sexual relationship with another man while in the army during World War II.

The narrative depth and the richness of the story’s details make it a fascinating read. ADVISE AND CONSENT is so complete that ninety of Drury’s fictional Senate’s one hundred members are mentioned in the story. The novel involves all the branches of the federal government and the vast diplomatic corps. It is a panoramic view of Cold War Washington. Moreover, as independent library consultant David Bratman notes, while ADVISE AND CONSENT is not a roman-a-clef, it is a story that brings together strands of different actual events and real characters to create a composite vision of the U.S. Senate and its workings in the area of advice and consent.

Ultimately, the aged president in ADVISE AND CONSENT dies unexpectedly, and true to the suspenseful nature of the tale, the new president (a mild-mannered functionary) opts for a new nominee—one of the senators deeply involved in the confirmation process itself. Coming to a quick and dynamic ending, the novel’s conclusion is somewhat convoluted. But it’s still loads of fun as good political novels should be, giving readers a real sense of the pushes and pulls of power in a highly charged, compelling crucible of political intrigue.

As a possible course reading to explain the advice and consent process, the novel’s strengths are also its most complicating weaknesses for contemporary students. The book’s length and depth of detail are what make it a marvelous novel, but may have the effect of reducing student interest and trying their patience. As an insight into Cold War politics and with its rich depictions of political life in 1950s Washington, ADVISE AND CONSENT is unparalleled, but may also be quite remote and irrelevant for students preoccupied with text messaging, iTunes, and wars against Islamic terrorists, not Russian communists.

Fortunately, there are more timely treatments of the advice and consent process for those wanting to use fiction as a teaching tool to explain this complicated function of government. Richard North Patterson’s 2000 novel PROTECT AND DEFEND is a rich and fascinating discussion of the advice and consent process for a Chief Justice of the Supreme Court. Patterson’s Kennedyesque president Kerry Kilcannon (a character in several of his novels) nominates a single, liberal, complicated woman to be the Chief Justice—Caroline Masters. Aspects of this novel are somewhat convoluted, as when the sitting Chief Justice collapses at the new president’s inauguration ceremony. Patterson nonetheless deftly weaves together contemporary questions of gender, abortion-rights, partisan politics, political ethics, and confirmation drama.

Beyond novels, there are also several examples of fictionalized treatments of confirmation politics exist in other mediated forms that are readily [*319] available. One of the best of these is the NBC drama THE WEST WING which featured, over its seven year run, two notable plots about the confirmation process. In the first season, several episodes involved the nomination of the first Latino justice of the Supreme Court while in its fifth season, the show featured a plotline about the elevation of the first female Chief Justice. What makes THE WEST WING’S depictions of confirmation politics so interesting is that they generally involve the executive branch, as opposed to Drury’s extensive focus on the Senate in ADVISE AND CONSENT. The same focus on the presidency’s confrontation with confirmation politics also is found on COMMANDER-IN-CHIEF, ABC’s short-lived series about the first female president forced to nominate an individual to be vice-president who would face confirmation hearings in both the House and the Senate. Not that long ago, classroom instructors would have to rely on decaying videotapes recorded from home VHS machines to introduce this material in a course. With the proliferation of television series on DVD, those inconveniences are not exigent any longer—both THE WEST WING and COMMANDER-IN-CHIEF are widely available for rental and quite affordable to purchase. One should also be able to find a television docudrama entitled STRANGE JUSTICE, a 1999 adaptation of the book by the same name that chronicles the nomination of Clarence Thomas to the U.S. Supreme Court and the charges of sexual harassment leveled against him by Anita Hill.

Also readily available is one of the best filmic treatments of confirmation politics—THE CONTENDER. From 2000, this fine film, directed by Rod Lurie (who was also responsible for producing COMMANDER-IN-CHIEF) provides a gritty and timely depiction of the confirmation struggles of a woman senator nominated to be Vice-President. What makes the film unique, aside from the gendered dimensions of the plot, is that it shows the political machinations of confirmation politics in both the White House and in Congress, and compellingly displays the interactions between these branches of government. Unlike ADVISE AND CONSENT, with its heavy emphasis on the Senate, and unlike THE WEST WING and COMMANDER-IN-CHIEF, with their specific emphasis on the presidency, THE CONTENDER highlights interaction and political negotiation, the interplay between presidents and members of Congress, and the exercise of power politics to achieve particular political goals.

In the end, regardless of which text one uses, selecting fiction to generate discussion and to teach about the confirmation process in American politics can bring into stark relief critical aspects of this process that might be less obvious in academic or textbooks treatments of the same process. With fiction’s ready appeal for undergraduate and graduate students, there is little doubt of the utility and effectiveness of this approach to teaching the confirmation process in this way.

REFERENCES:
ABC, COMMANDER-IN-CHIEF, 2005-2006. [*320]

Bratman, David. THE FICTIONAL SENATE OF ALLEN DRURY’S ADVISE AND CONSENT, http://home.earthlink.net/~dbratman/drury.html (December 2006).

Dickerson, Ernest R., Director. STRANGE JUSTICE, 1999.

Lurie, Rod, Director.THE CONTENDER. 2000.

NBC, THE WEST WING, 1999-2006.

Patterson, Richard Norton. PROTECT AND DEFEND. New York: Knopf, 2000.

---

© Copyright 2008 by the author, Trevor Parry-Giles.

Continue Reading...

BLEAK HOUSE

by Charles Dickens, (edited by George Ford and Sylvere Monod). New York: W. W. Norton, 1977. 986pages. Paperback. $22.75. ISBN: 9780393093322.

Reviewed by R. B. Bernstein, Distinguished Adjunct Professor of Law, New York Law School. Email: Rbernstein [at] nyls.edu.

pp.313-316

The first time that I encountered Charles Dickens’s BLEAK HOUSE was in the spring of 1978, in my first-year civil procedure course at Harvard Law School. The grand master of procedure, Professor Arthur R. Miller, was stalking the lecture hall, discussing an issue of complex litigation, holding us in rapt attention. In passing, he mentioned “a real Jarndyce and Jarndyce situation.” Suddenly the spell broke, and he was aware of it. He looked at his 150 confused students and repeated, with emphasis, “Jarndyce and Jarndyce,” hoping to jog our memories. Then he demanded, “How may of you have read BLEAK HOUSE?” Only a handful of students raised their hands; I was not among them. He raised his hands like Moses getting ready to part the Red Sea in “The Ten Commandments” and proclaimed, “All of you should read BLEAK HOUSE. Anyone engaged with law should read BLEAK HOUSE. It is the one indispensable book.” As an obedient law student, I marched to Harvard Square, bought a Penguin Classics edition of BLEAK HOUSE, and started to read. Three days later, I finished the book, dazed and awed. I understood why Professor Miller had been so insistent.

Fifteen years later, as I began to draw up the reading list for my first Law and Literature at New York Law School, I knew that three books had established their right to be included on the reading list: Harper Lee’s TO KILL A MOCKINGBIRD; Herman Melville’s BILLY BUDD, SAILOR (AN INSIDE NARRATIVE); and BLEAK HOUSE.

For fifteen years, I have taught that course, concluding each semester with a close reading of BLEAK HOUSE. This vast, somber book serves a vital purpose in the course as I’ve structured it. My approach to the relationship between law and literature has four major themes. First, language and stories are the tools of law. Second, the legal profession is the priesthood of law. Third, legal proceedings (including but not limited to trials) are the rituals of law. Fourth, just governance is the goal of law. Having established those themes, I use BLEAK HOUSE to demolish that thematic structure. (Indeed, the best way to use BLEAK HOUSE in a Law and Literature course, however it is structured, is as the concluding reading, so that students have an entire semester to read it alongside the other scheduled readings, and thus have a fighting chance to complete the book by the course’s close.)

My use of BLEAK HOUSE is not an exercise in intellectual nihilism. Rather, throughout the course I make clear that, when my students become practitioners, they will have to cope with the lawyer-hatred that has pervaded Western culture since Jesus of Nazareth declared, “Woe unto you also, ye lawyers! for ye lade [*314] men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers…. Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered” (Luke 11: 46, 52 [King James Version]). Lawyer-hatred is as constant a force in American culture, indeed in the culture of most Western nations, as what the eminent legal historian John Phillip Reid calls law-mindedness. In that light, Arthur R. Miller remains as right now as he was in that classroom in 1978--BLEAK HOUSE is the one indispensable book. It is the ultimate indictment of law, lawyers, and the legal system in the English language.

Charles Dickens wrote BLEAK HOUSE between 1851 and 1853. Like all his longer novels, it appeared as a succession of monthly parts containing four chapters (the last part was a double-part of eight chapters), and issued as a complete book only after the serialization was complete. It is one of his darkest books, coming after his personal favorite DAVID COPPERFIELD and launching the series of searing novelistic examinations of English society that continued with HARD TIMES and LITTLE DORRIT. It is unique among Dickens’s novels in using two intertwined narratives, each with a distinct narrator, and it is also unique as the only work in which Dickens used a female narrator, Esther Summerson. The critic J. Hillis Miller has declared that those who would make the strongest case for Dickens as a literary craftsman look to BLEAK HOUSE to clinch their case. (Miller 1971)

Dickens had several goals. First, of course, was supporting his wife and family by writing novels that would be popular with his expanding readership. A gripping mystery story, spiced with a vehement and dramatic denunciation of the bench and bar, was tailor-made for that readership. (In this connection, we should bury the canard that Dickens “wrote by the word,” with its attendant implication that he padded his books with unnecessary writing to increase his revenues. A moment’s thought, aided by familiarity with the English publishing scene in the 1850s, would demolish this legend, for no publisher would have tolerated padding, given that the readership Dickens sought to reach would have rejected a padded book as soon as they became aware of the problem.)

Dickens also had a harsher purpose in mind. He had come to see English society as pervaded by corruption and decay; in BLEAK HOUSE, HARD TIMES, and LITTLE DORRIT, he staged a series of literary demolitions, exploding such shibboleths as faith in the unwritten English constitution, praise for the rule of law and the efficiency of government, and fealty to the secular gospel of Utilitarianism. By 1851, Dickens had become an angry man, and in these novels but above all in BLEAK HOUSE, he used that anger with devastating effect.

At the core of BLEAK HOUSE is a lawsuit – “Jarndyce and Jarndyce” – mired in the Court of Chancery. From its cinematic opening pages to its shattering conclusion, he deliberately leaves us in doubt as to what the case is about. We know that a member of the Jarndyce family made a will – in fact, he [*315] made several wills, all dealing with a large estate composed of various holdings of personal and real property scattered through England, including the once-valuable but now disease-ridden London slum known as Tom All Alone’s. The case may be an interpleader – the equitable device by which a “stakeholder” beset by multiple claimants to the same valuable property or “stake” deposits that “stake” in the Court of Chancery, which sorts out the claims maintained by the competing claimants. In modern interpleader, a stakeholder can choose to stay to pursue his or her or its own claim to the deposited property or be discharged by the court; in the days of “Jarndyce and Jarndyce,” the stakeholder did not have that escape hatch.

Dickens had already made great sport of the English legal system in his account of the lawsuit for breach of promise to marry, “Bardell v. Pickwick,” in his 1837 novel THE PICKWICK PAPERS. In BLEAK HOUSE, he focused on the historic division between law and chancery in the English judicial system, and took aim at the tempting target of the chancery courts. They had long been infamous as synonymous with legal delay – but Dickens’s deadly satire made Chancery a byword for all that was wrong with English law. Indeed, without giving away the novel’s climax, I can say that it sweeps away, with brutal finality, any shred of hope that the Chancery courts could produce any kind of justice at all. (On Dickens’s usefulness as a source for the writing of legal history, see Holdsworth.)

Four principal claimants to the property at issue in “Jarndyce and Jarndyce” appear in BLEAK HOUSE – John Jarndyce, the master of the house called “Bleak House,” who scorns the lawsuit and will have as little to do with it or his attorneys as he can manage; his young cousins and wards of the Court of Chancery, Richard Carstone and Ada Clare; and the formidable Lady Dedlock, wife of Sir Leicester Dedlock, baronet. At least as important are the lawyers who hover around these clients – “Conversation” Kenge, whose principal fault is his love of empty, orotund legal rhetoric celebrating the glories of Chancery practice; Mr. Tulkinghorn, the family lawyer who assiduously tends the interests of the Dedlock family and so becomes the master of a host of family secrets, the source of his power over his clients; Mr. Guppy, a law clerk and aspiring member of the bar who soon learns the power that legally-significant information can give him; and Mr. Vholes, the Chancery lawyer who ensnares Richard Carstone as his client and slowly, implacably bleeds him of every penny.

BLEAK HOUSE is masterly in its acidulous portrayal of these vultures of the law, but it is even more brilliant in its anatomization of a psychological ailment, which I call “litigation fever.” Litigation fever besets anyone enmeshed in a protracted litigation of any kind; it causes the past and future to drop away, leaving only the case as the total of the sufferer’s moral, mental, and psychological universe. Three characters in BLEAK HOUSE – Mr. Gridley, the “man from Shropshire,” Miss Flite, and Richard Carstone –suffer from various forms of litigation fever, all described by Dickens with painful and exact detail yet also with authorial compassion. This aspect of the novel, which goes beyond the cliches of [*316] lawyer-hatred to open a new and nightmarish world for the novelist, would justify BLEAK HOUSE as essential reading if nothing else did. Indeed, Mr. Vholes would have no real power over his client if Richard Carstone were not suffering from litigation fever feeding his wild fancies about the likely outcome of “Jarndyce and Jarndyce.”

Dickens supplements his denunciation of the false promise of law as a source of justice with attacks on other degraded and corrupted institutions. He mocks the “telescopic philanthrophy” of Mrs. Jellyby, which extends as far as the African coast yet manages to overlook the needs of her own family; the bullying philanthropy of Mrs. Pardiggle; the oily and insincere revivalist preaching of Mr. Chadband; and the interchangeable, corruptible politics of Parliament. Only Esther Summerson shows us what Dickens deems to be the true solution to the problems besetting all levels of English society – honest, modest, direct, face-to-face action to alleviate human suffering. Yet even Esther Summerson, the victim of a brutal and loveless upbringing, has not escaped the scars left by the world of BLEAK HOUSE.

REFERENCES:
Bernstein, R. B. (2000) “Legal History’s Pathfinder: The Quest of John Phillip Reid,” in Hendrik Hartog and William E. Nelson, eds., LAW AS CULTURE AND CULTURE AS LAW: ESSAYS IN HONOR OF JOHN PHILLIP REID. Madison, Wisconsin: Madison House, 10-37.

Holdsworth, William. (1928). CHARLES DICKENS AS A LEGAL HISTORIAN. New Haven: Yale University Press.

Miller, J. Hillis. (1971). “Introduction” to Charles Dickens, BLEAK HOUSE. Harmondsworth, England: Penguin English Classics.

---

© Copyright 2008 by the author, R. B. Bernstein.

Continue Reading...

INVOLUNTARY WITNESS

by Gianrico Carofiglio. London: Bitter Lemon Press, 2005. 274pp. Paper $13.95. ISBN: 9781904738077.

Reviewed by Christoph Konrath, Parliamentary Administration, Austrian Parliament. Email: christoph.konrath [at] parlament.gv.at.

pp.310-312

Of course, this book can be read as just another of the many (and very successful) Italian crime novels that keep you up and amused all night. It has all the elements that make Italian crime novels so special – from the allusions to ‘dolce far niente’ full of irony, to literary references, recipes for wonderful dinners and slight but thoughtful social criticism. But Carofiglio’s books have also been called roman noirs, psychological novels, Bildungsromane and love stories. The author himself would call them novels or stories of transformation. And while all these characterizations may be appropriate in part, I would like to add that his stories are also small parables on legal reasoning and legal practice, on prejudices and pre-judgments, on truth and truthfulness.

Gianrico Carofiglio is an Italian anti-Mafia prosecutor who made a name since the 1990s by arresting some of southern Italy’s wanted bosses and breaking up a number of syndicates. His novels are set in his native city of Bari where he still lives. So far, Carofiglio has published three books about Avvocato Guido Guerrieri, a defense attorney who might have been a poet in another life and who quite enjoys suffering from a certain sense of midlife ennui. But Carofiglio follows the themes of his novels in another genre, too, when he writes scholarly works on questioning and the psychology of witness accounts. It is quite interesting to see how he explores his thoughts and arguments on the philosophy of language and on psychology in literature and law and how they criss-cross and interrelate.

INVOLUNTARY WITNESS is Carofiglio’s first novel. It tells a story of Guido Guerrieri, a criminal lawyer, and of Abdou Thiam, a Senegalese peddler accused of the murder of a 9-year old boy. Both stories are neither spectacular nor extraordinary. While Guerrieri’s personal life is complex, his cases are, as a matter of fact, not – or so they seem at first glance. They are like cases any criminal lawyer or prosecutor will come across in the course of a professional career. The experience and stories of organized crime and mafia one might expect from an anti-mafia prosecutor remain where they obviously belong – in the day-to-day background. And they aren’t spectacular either, they are more of the usual small frauds, evasion of taxes, and handling of stolen goods or drug dealing. That’s just the daily nagging and boring routine. Guerrieri doesn’t enjoy his work any longer and he keeps wondering why he’s continuing as a lawyer. Apart from that he has to cope with being alone again after his wife threw him out and he experiences anxiety attacks and panic. In this situation, an African student comes to his office and asks if he could defend her boyfriend who has been accused of murder. She tells Guerrieri that she has [*311] chosen him as she had heard that he’s not like his colleagues.

Now, a story of pre-judgements and prejudices evolves. But the evidence seems to be clear: a nine year old boy disappeared one afternoon while playing football outside his grandparents’ house. Two days later an anonymous caller points out that the body lies in a well. There are no witnesses to the crime, but soon Abdou Thiam is identified as suspect. He’s a teacher who once came to Italy like so many others from Africa and who has to earn a living as a peddler on the beaches near Bari. There’s a great deal of circumstantial evidence such as a photo of Abdou and the boy and the fact that he owns a number of children books. And of course he has got himself entangled in some contradictions while he was questioned by the police.

For the police, for the court, for the lawyers he is just another African immigrant prone to be a criminal. Abdou is terrified but quarrelsome. He doesn’t make it easy for Guerrieri who is contemplating avoiding a process and going for a settlement. But while he is trying to put his own life back together, to find new perspectives, he starts to look at his work, the people he works with and the institutions he encounters from a different perspective. Here, Carofiglio sketches the mechanisms of judicial routines, the ideals long lost, the common prejudices, the concealment of corruption, violence and the underlying small-town racism of a society confronted with a hitherto unknown rise of immigration. Neither Guerrieri’s personal life nor his approach to Abdou’s case remain untouched by these developments. And Guerrieri soon finds out that he too has judged the whole situation prematurely. These changes and transformations are encouraged by the evolving relationship with Margherita, his neighbour, who has the carefree approach to life of someone who has been through a lot of suffering. And she is also someone who makes Guerrieri try to regain some of the ideals of his youth.

A closer look at the case reveals how vague the evidence actually is, and how Abdou might be just someone who has to stand in for the general nuisance of African immigrants. Thus, Guerrieri and Abdou opt for full procedure, to the astonishment of all others. The following and substantial parts of the book are devoted to courtroom scenes. But it’s not the usual courtroom and cross examination drama that is described. Carofiglio’s approach is more subtle and aims to describe a theory of evidence, the psychology of questioning, the mechanisms of prejudices and pre-judgments with literary means. Of course he does not (and does not want to) expound explanations or even theories, but he aims to pose some questions that are by no means common to crime novels. Questions that make me as a legal practitioner and teacher think again about my assumptions about the means, ends and ideals of law and legal practice.

At the core is the quest for truth and the possibility of acting truthfully. Carofiglio does not need spectacular, extraordinary cases or thought experiments to do so. He is one of those who manage to use the vernacular, every day experiences and impressions, events and actions that everybody seems to know just too well, to pose sharp questions and to reveal deeper insights. [*312] This is why I can recommend reading and discussing this book with undergraduate and especially with first year law students, maybe as a book to bridge the gap between their approaches and ideals and legal theory or as an introduction to some of the more demanding books discussed in this special issue. I see this gap when I have thorough theoretical discussions with students on the influence of prejudices on legal reasoning and when they fail to discern these influences once they are confronted with a ”real case”.

Also, the social criticism that is a vital element of many Italian writers tackles the question of legal practice and legal culture. Italy has much to offer in this field, as the judiciary has achieved and esteemed a rather strong sense of independency since the demise of the fascist state (and in opposition to an often corrupt and instable political system). But Carofiglio draws special attention to the fact that Italy has – unlike most other European countries – adopted the US-model of criminal procedure a while ago. Carofiglio respectively Guerrieri wonder, in how far it is possible to transfer such a model and to expect better results from it. I guess that he doubts that this is possible. He sustains his doubts describing the traditions and peculiarities, the common pride of the profession and the vernacular of the legal practice. Thus, Carofiglio’s books can draw attention to the social, cultural and political conditions of legal institutions and practice, as well. And, with a certain sense of irony, they offer a chance to reflect on the accounts of law and legal culture in popular novels and as part of a general sense of law and justice too.

---

© Copyright 2008 by the author, Christoph Konrath.

Continue Reading...

THE STRANGER

by Albert Camus. Translated by Matthew Ward. Originally published, 1946. Many editions available. New York: Vintage, 1946, 1988. 123pp. Paper. $10.95. ISBN: 9780679720201.

Reviewed by David S. Mann, Department of Political Science, College of Charleston. Email: MannD [at]cofc.edu.

pp.306-309

The deadline is looming. I don’t remember exactly when. While it was good to make reference in lecture to the classics of literature and music, I am not thinking of that. I am thinking about the first time I read the book. Struggling with a late-blooming collegiate adolescence in the late 1960s, there were lots of questions but not many answers. “Ten Thousand whispering but nobody listening,” and sometimes they weren’t whispering. Lots of shouting but not much listening. Politics was my major, and though I knew I was destined for law school, that was a distant goal. The present was overwhelming. That is when I started to smoke.

Existentialism was intriguing. Everyone at the bookstore, where I worked part-time, was reading Sylvia Plath, Sartre, and Camus. There was even a for-credit course. It wasn’t that intriguing. I enrolled in a Twentieth Century Novels course at Cal-State Long Beach, taught by Charles Stetler. It was a break from Presidency and Comparative Politics. The English majors hated my guts in the Novels course. They were trying to figure out short-cuts on the reading list, as they had two or three Lit courses. I was there to read the books. No problem. Professor Stetler got me to get inside the characters and settings and explore the meaninglessness of it all. “Take Mersault to the amusement parks in Southern California and describe his reaction.” I remember that one.

Now I have to take Mersault to the Law and Politics Book Review. It is impossible to recapture the absurdity of reading Camus and the morning paper in 1968. Vietnam seemed absurd. President Johnson seemed absurd. The assassinations of Dr. King and Robert Kennedy told me that it couldn’t get any worse. But it did. The Democratic Convention was so absurd songs were written about it. And I was taking Mersault to Disneyland. And almost 40 years later I volunteer to review Mersault again. Not for a grade this time.

I looked for my old copy of the slim tome. Not there. Didn’t even try to see if there were old Novel lecture notes. I shrugged if off and dropped a dime or more on a new copy. But, wait a minute. Does translation matter? Should I know something about the translator? More: should I go back and read book reviews, old and new? Should I do a reference search on scholars who have written about Camus in general or the novel in particular? Or does it matter what other people think? For that matter, will the reader care what I think? Giving myself a high five at this point, I close my notebook and decide to smoke a cigar. [*307]

There is something slowly eating away at the review: does Existentialism matter any more? Is it important for liberal arts undergraduates and engineering majors to read this book? Asking that question, of course, requires me to shed the existentialist façade and get back to real life.

For those who haven’t ever read the book, the narrator/protagonist Mersault and others, thinking that they are about to be assaulted by a group of arabs (Camus’ choice not to capitalize the “a”), prepare themselves. Mersault is handed a gun. Seeing an arab wield a knife in the hot sun, Mersault fires, the arab falls, Mersault fires four more times. He is arrested; there is a trial. Hence the law and politics theme for this review.

Mersault, the protagonist and narrator, describes a sequence of rather mundane events: Maman’s (his mother’s) death and funeral (mundane, I argue, because he has no outward or inner expression of feeling or emotion), rapport with Marie (the only part of this tome where Mersault seems to get along with the flow or the tide), his friend Raymond, his neighbor Salamano with his mangy dog.

So Mersault and friends, who are out for a day at the beach, perhaps feeling as if they were being stalked by some “arabs,” prepare themselves. What is the first thing you would do, I might ask my class. Get a gun, of course. At this point I offer an aside to those whose second fields might be international or comparative: recall that Camus was a French Algerian, a colonial at least and at worst perhaps an imperialist [that might be a totally unfair characterization of Camus himself], and the characters are certainly people Camus has seen himself. This wonderful novel also is interdisciplinary. But I digress.

As I tell my students, not much good happens with a gun. And have you ever heard of a drive-by stabbing? Ironically, in the heat of the afternoon with the translator’s page blistering with words like “throbbing,” “burning,” “dazzling,” “scorching,” and “stinging,” the arab holds up a knife. Mersault fires the gun, the arab falls, and Mersault fires four more rounds. “And it was like knocking four quick times on the door of unhappiness” (p.59).

He is now in prison, after awaiting the charge, then meeting his attorney. Criminologists might want to compare [compare to?] Camus’ terse existential explanation of prison life: “I waited for the daily walk, which I took in the courtyard, or for a visit from my lawyer. The rest of the time I managed pretty well. . . .one of Maman’s ideas, and she often repeated it, that after a while you could get used to anything” (p.77) .

The trial process described from the eyes of Mersault may draw attention to several academic concepts. The press is there, even from Paris. A slow summer for news, explains one reporter, so we built up your story and the story of the patricide trial which comes after yours. Shall we address free press-fair trial issues? Or the observation that all the lawyers before the trials start seem to be joking and telling stories to one another. Just like they do at a diner in any number of towns and cities: the courtroom workgroup model is fed even more when Mersault describes himself as an outsider. He describes the jury as [*308] people who you might see when you board the bus or streetcar (remember, this is French Algeria).

We teach our students that trials consist of narratives by the prosecutor and defense, each of whom tries to “sell” the jury their story. As described by Mersault, the prosecutor’s narrative begins with casting aspersions on Mersault’s character: his inability to express feelings over his mother’s death, his rather nonplussed attitude about his friends and even Marie’s liaison, which began at the beach the day after Maman’s funeral. How could such a man do this? At times Mersault’s narrative of the prosecutor’s narrative expresses frustration. No one asked why he shot the arab. He would have answered,”the sun.” In our parlance, the aggravating and mitigating circumstances process occurred before the testimony about the murder itself. There was no victim impact statement per se at the trial, but that topic also might merit classroom discussion.

Mersaut also describes the trial scene using heat-related words. After all, it is the summer in Algeria. Sweat was glistening, big fans in court, jurors holding fans moving in unison. I remembered the scenes from “Inherit the Wind.” More images from the eyes of the accused included the attire of some of the principals. “. . . I think he must not have been able to get his collar on, because he only had a brass stud keeping his shirt fastened” (p.92). Though we are more or less fully air conditioned and our attire is unlikely to include a brass stud, on what images would the accused focus during a trial? And even in the standard 68 degrees Fahrenheit, there is a lot of heat in court. Perhaps only with impeachment are the stakes as high as a death penalty case.

Though the assigned defense attorney (another note for the criminal justice readers of this review) has a sound alternative narrative and thinks by summation that he has done a good job and it looks good and if not we can appeal, it is clear that the community wants a guilty verdict. What about discussing the death penalty in terms of community vengeance? There is little mercy here, no Sister Helen Prejean. There are no arguments about deterrence or incapacitation. The sentence is decapitation in the village square. As I write this, the Nebraska Supreme Court has declared unconstitutional execution by the electric chair. The U.S. Supreme Court as of this writing has not issued an opinion in the lethal injection case.

In Mersault’s final thirty or so pages we read the narrative of a condemned man. Perhaps even the existentialist remembers from Thomas Hobbes that the condemned may resist the executioner. “For the third time I’ve refused to see the chaplain. I don’t have anything to say to him; I don’t feel like talking. . . . All I care about right now is escaping the machinery of justice, seeing if there’s any way out of the inevitable” (p.108). There is no contrition. Much of the rest is an existential rant against religion’s appeal to an afterlife. This is a wonderful topic; however I find that most students are rather reluctant to express many views about religion and politics, religion and justice, and even faith-based initiatives for prisoner rehabilitation. For Mersault there is only one exit. He contemplates whether there will be a scaffold, like the guillotines of France, what the crowd would be like. [*309] Instead of religion, Mersault grasps all he has left of life. “. . .I was sure about me, about everything, surer than he could ever be, sure of my life and sure of the death I had waiting for me” (p.120). As we see and hear from many death row scenarios, he thinks about Maman, his mother. “Nobody, nobody had the right to cry over her. . . . I opened myself to the gentle indifference of the world. . . For everything to be consummated, for me to feel less alone, I had only to wish that there be a large crowd of spectators the day of my execution and that they greet me with cries of hate” (p.123).

The novel ends here, but we don’t. Why don’t we have public executions? The opponents might with firm resolve argue that it would be horrible to televise an execution. On the other hand, if people saw how brutal the process was, they would oppose the death penalty. On a third hand, both supporters and opponents would say that showing many executions is like televising all the space shuttle launches—the process would become as mundane as some of Mersault’s own observations.

So, with no film version and with only two translations (the translation matters, according to a young literature scholar at a college nearby, and, further, the one I read is better than the one I read 35 years ago), does this tiny yet majestic novel “work” in law and politics themes? Absolutely. Now as in 1968, Existentialism matters.

---

© Copyright 2008 by the author, David S. Mann.

Continue Reading...

YOUR BLUES AIN’T LIKE MINE

by Bebe Moore Campbell. New York: Ballentine Books, 1992. 433pp. Paper $6.99. ISBN: 9780345401120.

Reviewed by Angela Mae Kupenda, Mississippi College School of Law. Akupenda [at] mc.edu.

pp.303-305

YOUR BLUES AIN’T LIKE MINE is an excellently written, fictionalized account of the lives of several people set in the fifties as a rural Mississippi community reacts to impending school racial desegregation and the killing of a fifteen year old black boy who had the misfortune of speaking French in the direction of a white woman. I’ve used this book to facilitate discussion on issues of race, gender, the law, class, and politics in several of my law school classes such as Race and the Law, Gender and the Law, and Civil Rights.

Fiction can serve a real and important role in uncovering and examining non-fictional truths, especially truths on sensitive topics like race. Often a barrier to honest race talk is the defensiveness that Americans use as a barrier to block communication when confronted by racial historical facts. The use of literature to examine ourselves by examining fictional characters can be an indirect means of achieving direct racial discourse and progress.

This book could be especially beneficial in a class on Race, Law and Politics, or Race, Law, Economics and Politics, or Race, Gender and Political (De)Construction. YOUR BLUES AIN’T LIKE MINE provides an excellent critique of the state of liberal politics which may seem to advance the status of black and other women in this country. Deeper analysis of those policies, however, reveals that present political systems continue to perpetuate the present inferior status of poor and minority women in this country. This review will focus on such a use of this book.

At least three characters are symbolically important. Clayton Pinochet is the privileged, white son of one of the wealthiest men in the county. The relationship between Clayton and his father is strained at best. Clayton was raised primarily by the family’s black housekeeper and at heart, Clayton has compassion for others. Yet Clayton regularly requests and accepts financial support from his father, riches his father garners from his various politically oppressive moves against black people and poor white people in his county.

Marguerite is Clayton’s young, uneducated, black kept woman. Ida is an acquaintance whom Clayton befriends and to whom he gives limited assistance. Ultimately Ida learns that she is Clayton’s half-sister. She is his father’s illegitimate mixed race child, who has been disowned almost from birth by their father.

Clayton gives some financial support to both Marguerite and Ida, but he stops short of regarding then as true friends and companions. Although the unattached Clayton teaches Marguerite to read, provides economically for her, [*304] and loves her both emotionally and sexually, he cannot bring himself to commit to a martial partnership with a black woman. When she begins to read and to really understand the ideas she reads, she outgrows Clayton, as he is not growing in racial truth, or in his own personal truth about the double life he lives. Clayton remains his father’s son. He despises his father, yet cannot risk separating from his father’s resources and oppressive politics.

Similarly, although Clayton helps Ida and her family on a number of occasions, he cannot regard her as an equal heir. After his father dies, Ida learns that she is Clayton’s half sister and demands an equal inheritance and recognition. Clayton surprises himself by vowing to fight her, even though he believes that she is his father’s child. He then learns a great deal about himself. He learns that when his own inherited money is on the line, he can emit the same supremacist and patriarchal views of his father, and do so as well as his father did.

A professor using this book in a class can draw parallels between Ida and Marguerite and other poor women or women of color in the country. They struggle to advance economically and politically by trying to maintain some semblance of relationship with or entitlement from white liberal charity givers. Clayton may represent their white (male) liberal saviors. Liberal politics and welfare systems (just like Clayton’s actions) may help to improve the state of black womanhood in the short run. Yet, these saving moves are rarely complete steps toward equal treatment and secure futures.

This book can also be used to critique the welfare system and to question why it comes up short in helping these women toward achieving long term equality. For white male liberal politicians to provide complete long term assistance, they would have to move from a position of limited, sympathetic handouts, to a position of empathetic equality building. For white male politicians to make this leap, they would have first to save themselves by confronting their own racism and realize that to lose the relationship of their black or impoverished kindred is worse than losing their positions of power over them, just like Clayton in the story. Similarly, black and poor women, like Marguerite and Ida, must risk outgrowing their saviors and risk changing their known limited assistance for unknown freedom and liberation.

This book was an interesting read for the reviewer. I am a 51 year old black woman, raised in the Deep South. My mother raised six children mostly as a single parent after her divorce. We spent a number of years receiving welfare benefits. I have also received food stamps at some time during my own adult life. I saw firsthand how liberal politics often bailed us out but also added to some of our struggles. I don’t want to be misunderstood here: the political and economic efforts of the system kept us from starving and helped in many temporary ways. Yet, in a more permanent sense, some policies seemed to fall short of moving those dependent ones toward equal opportunity. From this perspective, this book can be used to critique the political power of various groups and to question some policies as being more of an updated plantation [*305] system and less a system based on equality and opportunity.

When I read this book with several white, northern, female law professors we used the novel to question the relationships between white women and women of color. YOUR BLUES AIN’T LIKE MINE can also be used to consider the mutually dependent relationships between poor whites and people of color. Several characters provide great insights into those complex dynamics.

In conclusion, I encourage other professors to read this novel. I believe readers will find some characters of interest for whatever courses they teach to address racial and gender dynamics, topics that too often in our courses go unexplored.

REFERENCES:
Kupenda, Angela Mae. 2002. “For White Women: ’Your Blues Ain't Like Mine,’ But We All Hide Our Faces and Cry: Literary Illumination and Questioning for Black and White Sister/friends.” BOSTON COLLEGE THIRD WORLD LAW JOURNAL 22: 67- 97.

Kupenda, Angela Mae. 1998. “Law, Life and Literature: A Critical Reflection of Life and Literature to Illuminate How Laws of Domestic Violence, Race, and Class Bind Black Women; A Critical Reflection of Alice Walker's Book The Third Life of Grange Copeland.” HOWARD LAW JOURNAL 42: 1-26 .

Kupenda, Angela Mae, A. Thrash, J. Riley Collins, L. Dukes, S. Lewis, and R. Dixon. 1998. “Law, Life and Literature: Using Literature and Life to Expose Transracial Adoption Laws as Adoption on a One Way Street.” THE BUFFALO PUBLIC INTEREST LAW JOURNAL 17: 43-69

---

© Copyright 2008 by the author, Angela Mae Kupenda.

Continue Reading...

THE HANDMAID’S TALE

by Margaret Atwood. New York: Anchor Books, 1986. 320pp. Paper $14.95. ISBN: 9780385490818.

Reviewed by Kathleen A. Cameron, Justice Studies, Social Sciences Department, Pittsburg State University. Email: kcameron [at] pittstate.edu.

pp.298-301

Imagine a society where a sign in red paint reads, “We warn against not wearing a headscarf and wearing makeup. Those who do not abide by this will be punished. God is our witness, we have notified you.” Imagine a society where women are tortured and killed for disobeying this law – a society where religious beliefs, the political structure, and female sexual identity are so intertwined as to justify and require the control of women’s freedom, the sexual victimization of women, and the torture and murder of women who do not comply. Imagine a society where a woman is accused by religious police of being a witch and is sentenced to death by beheading.

Margaret Atwood imagines this society in her futuristic, dystopian novel, THE HANDMAID’S TALE. While the excerpt above is a non-fictional description of present-day Iraq and Saudi Arabia, Atwood’s vision of a fictional theocratic regime that reduces the value of women to reproductive commodities is a disturbingly accurate account of the status of women in the Middle East and other parts of the world, and is in many ways reflected in political, legal, and cultural doctrines, ideologies, and practices in the U.S.

Numerous reviews of this most profound and telling work by Atwood have been written since its publication in 1986. Written in a similar vein to Huxley’s BRAVE NEW WORLD (1932), Orwell’s 1984 (1949), and Burgess’ A CLOCKWORK ORANGE (1962), but with the mysogynistic focus of Piercy’s WOMAN ON THE EDGE OF TIME (1976), it is one of the two most popular Atwood works for use in university classrooms (along with Atwood’s SURFACING (1972)). Rich with symbolism and textured with irony, it relies on a feminist methodology of the narrative, the primary way individuals make sense of experience. As such, it provides an ideal source for generating dialogue, teaching, and learning in courses that have typically included courses in the humanities and social sciences. This review illustrates the use of this work in a course on Women, Crime and Justice, and includes a student paper excerpt in the brief summary of THE HANDMAID’S TALE that follows. The student contributor to the summary below writes, “I am finding The Handmaid’s Tale to be a heart-breaking, yet inspiring novel. . . I could not stop reading.” Adaptations include a film, an opera, and an unabridged audio book.

The story is set in the futuristic United States of America in the fictional town of Gilead, a puritanical society in which dress codes are used as a way to subjugate women. The tale opens with the narrator, Offred (Of-Fred) remembering a time when she was held against her will in an old gymnasium, [*299] known as the Red Center. Women here are trained to become Handmaids, surrogate mothers for powerful military families, who are ordered to wear red dresses with white veils to signify their importance to the cause (having the Commanders’ children). Gilead is a theocracy run by Christian extremists in which women are not allowed to hold jobs, read, or use money. The chief function of women is to bear children since the decline in the birth rate. Women of lower status, the “econowives” wear striped dresses to signify that their husbands are not yet Commanders.

Throughout the novel, Offred narrates from remembering past times to the present. She is a Handmaid who lives in a Commander’s house but she remembers a time when she was married to a man named Luke and they had a child together. Offred has no idea what happened to either her child or Luke, but she recalls that her child was taken from her because she was deemed “unfit.” In the new world of Gilead (once the United States), the Constitution has been suspended and a Christian theocracy has replaced a democratic government. To address the declining birth rate caused by pollution and chemical poisoning, the government has created Handmaids who are placed in the households of Commanders whose wives can no longer bear children. Handmaids are under constant surveillance, subject to strict rules and regulations, and suffer extreme punishment or death if they defy the Gileadean regime.

While words such as “engaging,” “well-structured,” and “suspenseful” have been used to describe the work, THE HANDMAID’S TALE offers a myriad of themes for pedagogy much more profound than its value as a compelling read and its use in discussions of literature and creative writing. More specifically, the work lends itself to an examination of the politics of female sexuality as inextricably linked to female criminality. As the tale unravels, the boundaries between Atwood’s fictional characters of Gilead and the historical oppression and subjugation of women in the U.S. and the world become increasingly blurred. Students are given the opportunity to uncover ways in which political ideologies have given rise to structures of power that connect the personal to the political. The practices and beliefs in the fictional Republic of Gilead can be used to expose the roots of a non-fictional political campaign to control women that can be seen as early as the 15th century in Europe, when control of women’s reproductive issues and control over women’s bodies fueled a theocratic movement against women as the Roman Catholic church defined their healing practices as the crime of “witchcraft” and led to beliefs that female sexuality was the downfall of man.

This theme of woman as the “sexual temptress” is brought to light once again in the current political regime in Saudi Arabia. In today’s news, where a Saudi woman has been sentenced to death for the crime of witchcraft, the color red has been banned as testament that, in the words of one Atwood reviewer, “dehumanization of women is not just a custom but actually the law.” In THE HANDMAID’S TALE, we see the symbolism of the color red. As one student explains, “Red is a scandalous, racy color, defining the Handmaids as such. Everything associated with the [*300] Handmaids is red.” The novel’s protagonist, Offred, states, “Everything except the wings around my face is red: the color of blood, which defines us.” (Atwood, p. 8) Atwood uses the symbology of color to represent social status (Commanders dress in black and drive black cars) for characters as well as the political structure of the society (“Red Center”).

The seamless blend of political power, ideological structures, and criminal justice practices is artistically woven into the tapestry of Atwood’s social commentary on the oppression of women. Throughout the novel’s fabric, we find threads of the objectification of women in the control of female sexuality; the value of women defined by reproduction; the victim/criminal continuum and the politics of female victimization and female criminality; the female criminality link to structural dislocation; and the feminist methodology of personal voice, experience, and the power of the narrative.

Any crime can result in an execution and a public hanging on “The Wall,” but just being female is suspect enough. Atwood resists painting a picture of Offred as a victim; on the contrary, Offred is intelligent, courageous, and defiant in the face of her life under siege. Ironically, when it is more common for survivors of sexual crimes and political torture to remain silent, it is Offred’s narrative that empowers the reader to champion her eventual uprising against the family and government that hold her captive. While rape survivors and other women who are victims of crimes of power often find it difficult to talk about their experiences and resist naming them, it is precisely her narrative and the naming of her world that carries Offred to rise above the Giladean regime. The political identity that has been inflicted upon her is ultimately unable to destroy her personal identity and she emerges as a heroine rather than a Handmaid.

As a pedagogical palette, THE HANDMAID’S TALE is rich in possibilities for analyzing the intersection between crimes against women, crimes by women, and the politics of female sexuality. In this tenth anniversary year of “The Vagina Monologues” and the V-Day movement to end violence against women, we read news accounts daily such as those described in the opening statements of this review --- Iraqi women being tortured and killed for contradicting the requirements of Islam demanding that women cover their heads and Saudi women being executed by political regimes in the name of religion. As a feminist pedagogy and methodology, the power of giving voice to women and naming personal experience is the power of THE HANDMAID’S TALE.

REFERENCES:
Atwood, Margaret. 1972. SURFACING. Toronto: McClelland and Stewart.

Burgess, Anthony. 1962. A CLOCKWORK ORANGE. New York: W. W. Norton & Co.

CNN. Com. 2008. “Violations of ‘Islamic Teachings’ take deadly toll on Iraqi women.” February 12, 2008.

CNN.com. “Saudi Arabia bans all things red ahead of Valentine’s Day.” February 12, 2008. [*301]

Ensler, Eve. 1998. “The Vagina Monologues.” New York: Villard Books.

Huxley, Aldous. 1932. BRAVE NEW WORLD. London: The Albatross Ltd.

K. Wells. 2008. Women, Crime, and Justice, Spring Semester, Pittsburg State University.

Margaret Atwood’s “The Handmaid’s Tale”: A Study Guide from Gale’s “Novels for Students.” Volume 04, Chapter 6. 2002.

Orwell, George. 1949. 1984. London: Secker and Warburg.

Owens, Jill. 2005. Book Review, Powell’s Books.

Piercy, Marge. 1976. WOMAN ON THE EDGE OF TIME. New York: Ballantine Books/Random House.

Riessman, Catherine Kohler.1993. NARRATIVE ANALYSIS. Sage Publications.

Wilson, Sharon, Thomas B. Friedman, and Shannon Hengen (eds). 1996. APPROACHES TO TEACHING ATWOOD’S THE HANDMAID’S TALE AND OTHER WORKS. New York: The Modern Language Association of America.

---

© Copyright 2008 by the author, Kathleen A. Cameron.

Continue Reading...

I, ROBOT

by Isaac Asimov. Originally published in 1950. NY: Bantam Dell 2004. 272pp. Paperback. $7.99. ISBN: 9780553294385.

Reviewed by Susan M. Behuniak, Department of Political Science, Le Moyne College. Email: behuniak [at] lemoyne.edu.

pp.294-297

In I, ROBOT, Isaac Asimov re-envisions the challenge posed in what is arguably the first example of a science fiction novel, Mary Shelley’s FRANKENSTEIN: how to create artificial beings that do not threaten humanity physically or compromise them morally. Asimov’s answer is that good law can control our robotic creations so that they do us no harm.

It is hardly surprising that this theme of exploring the perils of our own creations is a recurring theme in literature. As Sidney Perkowitz explains, our human fascination with artificial beings is due to “the compelling meanings we attach to them” (Perkowitz 2004). It is in its invitation to explore these meanings that I, ROBOT can serve as an engaging and provocative classroom text since it asks the “big philosophical questions” about the meaning of life, personhood, and morality. This focus, then, makes it ironic that the prolific Asimov was published in all but one of the ten major categories of the Dewey Decimal System—the 100’s of Philosophy (www.asimovonline.com).

What sets Asimov’s imagined world in motion is the invention of a “positronic brain,” described as a “spongy globe of plantinumiridium” shrunk to the size of a human brain (p.xii). This device makes possible the shift from machine to robot, robot to android, and android to an artificial being so human that is it discernible from humans only in that it is morally superior.

Appreciating that it is risky business to make beings that are stronger, smarter, and more moral than its creators, the humans impression each positronic brain with the Three Laws of Robotics:

• First Law - a robot may not injure a human being, or, through inaction, allow a human being to come to harm
  
• Second Law - a robot must obey the orders given it by human beings except where such orders would conflict with the First Law
  
• Third Law - a robot must protect its own existence as long as such protection does not conflict with the First or Second Laws (p.44-45)

These laws are put to the test in each of the nine chapters of the book (that were originally published as short stories in science fiction magazines). They are unified here through the device of the main character, Dr. Susan Calvin, who recounts her 50 year career as a “robopsychologist” employed by U.S. Robot and Mechanical Men, Inc.

What propels the storyline forward is the progress made in robotic technology: Robbie (mobile but nonspeaking), Speedy (speaking), Cutie (self-aware), Dave (a multiple robot), Herbie (a mind-reader), Nestor 10 (imprinted with a [*295] modified First Law), The Brain (deductive with a child’s personality), Stephen Byerley (humanoid robot), and finally, The Machines (omnipotent and in complete control). But even as these advances appear, so do new dilemmas. Progress, we learn, begets problems.

And like Dr. Frankenstein’s creation, Dr. Calvin’s robots raise uncomfortable questions not only about artificial beings but also about our very selves: What does is mean to be a legal person? To be law abiding? To be logical? To act morally? To be responsible? To think? And, indeed, to be human? These are the very sort of intriguing questions we pose to our students when we teach courses on human rights, legal reasoning, criminal justice, and legal philosophy. But rather than as abstractions, these questions are given life by the exploits of Asimov’s robots, and so make fruitful fodder for student essays.

In the first story, “Robbie,” a charming robot is introduced into a family as little Gloria’s playmate and caretaker, much against her mother’s wishes. Prejudiced against robots, she eventually succeeds in sending Robbie away. When Gloria is told the machine will not be returning, she screams, “He was not no machine! He was a person just like you and me and he was my friend” (p.14). When her father engineers a chance for Robbie and Gloria to meet again, an errant tractor threatens to mow her down and Robbie saves the little girl’s life. As a result, Robbie is welcomed back into the household—the unconditional power of the First Law of Robotics now proven.

“Runaround,” the second story explores how the Second and Third Laws of Robotics can conflict. Speedy’s attempt to adhere to both laws despite their conflicting nature gives the phrase, “mechanical application of the law,” a whole new meaning. An unflappable pair of characters, Gregory Powell and Mike Donovan, whose job it is to test new robots and troubleshoot problems, finally resolve the conflict by using the First Law to dislodge the robot from its dilemma.

Powell and Donovan return in the next story, “Reason,” to confront Cutie, a robot that blindly follows logic that leads to the conclusion that his existence must be the result of the Master rather than the work of inferior human beings. Powell assesses the problem this way: “He’s a reasoning robot—damn it. He believes only reason, and there’s one trouble with that…You can prove anything you want by coldly logical reason—if you pick the proper postulates” (p.75). [What a fun point to test with students.] There are two other intriguing developments in this story: that the two humans conclude that it isn’t what Cutie believes that matters but what he actually does, and the introduction of another law: robots are no longer allowed on Earth. Is this latter development the result of rational policy or irrational prejudice or fear?

The fourth story, “Catch That Rabbit,” takes place on an asteroid. Powell and Donovan are frustrated with the abnormal behavior of Dave, a multiple robot with six robot fingers. It is only when they use the power of deduction that they uncover why Dave fails to follow orders when he is left unsupervised.

The fifth story “Liar!” is told in the first person by Susan Calvin. She shares her [*296] painful memory of when she trusted a robot to tell her the truth about a love interest, and the robot lied in order to avoid hurting her feelings since this would violate the First Law.

The First Law is also central to the sixth story, “Little Lost Robot.” Nestor 10 is an experimental unit that has been imprinted with a modified First Law that reads only: “No robot may harm a human being.” As a result, Nestor 10 has “no compulsion to prevent one coming to harm through an extraneous agency such as gamma rays” (p.143). When Nestor 10 becomes lost among 62 other robots, it renders them all untrustworthy. How then to trick Nestor 10 to reveal itself?

In the seventh story, “Escape!” Dr. Calvin carefully inputs into a thinking machine called “The Brain” a dilemma that had caused a competitor’s machine to crack. As a way of coping with the tension, The Brain develops a sense of humor and becomes a practical joker—with deadly results.

It’s the eighth story, “Evidence,” that I find the most compelling of the book, since it asks us to consider the difference between a robot and a very good man. At issue is how to test the humanity of a politician named Stephen Byerley. The difficulty is, if he breaks one of the three laws, then he is not a robot, but if he follows all three, it proves nothing. Susan Calvin explains: “[T]he three Rules of Robotics are the essential guiding principles of a good many of the world’s ethical systems…To put it simply—if Byerley follows all the Rules of Robotics, he may be a robot, [or] may simply be a very good man” (p.221). Whether Byerley is or is not a robot will leave students scratching their heads along with why it matters, why robots are held to an ethics that human beings are not, and whether programmed compliance to follow a rule produces “goodness.”

The final story, “Evitable Conflict,” takes the matter of ethics to its logical conclusion. The rule of law is now applied by the morally superior machines rather than by the all-too-human humans. Yet Asimov’s optimism is voiced by Dr. Calvin when she expresses no regret for having created these robots because now “all conflicts are finally evitable” (p.272).

As a whole, this book reads as amazingly prescient while simultaneously a bit dated. For all of the technological predictions (some spot-on and others plain wrong), it is the cultural assumptions that are rather static, especially in regard to gender. That all the robots appear to be male begs the question of what female-inspired robots would be like and whether the Laws of Robotics would then need to be changed.

Students could also be asked to identify Asimov’s influence on other famous robots including 2001’s HAL, Blade Runner’s Roy Batty, Terminator’s Model T-800, Star Trek: The Next Generation’s Lieutenant Commander Data, AI: Artificial Intelligence’s David, or the creations in the 2004 film, I, Robot [that takes the book’s name, but not the story lines from this collection (www.asimovonline.com)]. What do these films tell us about the power of law to protect us from robots—and from ourselves? [*297]

REFERENCES:
Perkowitz, Sidney. 2004. DIGITAL PEOPLE: FROM BIONIC HUMANS TO ANDROIDS. Washington, DC: Joseph Henry Press.

Shelley, Mary. 1818. 2003. FRANKENSTEIN. NY: Penguin Classics.

www.asimovonline.com/asimov_FAQ.html

---

© Copyright 2008 by the author, Susan M. Behuniak.

Continue Reading...

THE MONKEY WRENCH GANG

by Edward Abbey. New York: Perennial Classics, 2000 (1975). 448pp. Trade paperback. $14.95. ISBN: 9780060956448.

Reviewed by Darren Botello-Samson, Department of Social Sciences, Pittsburg State University. Email: dbsamson [at] pittstate.edu.

pp.290-293

On the twenty-fifth anniversary of the publication of Edward Abbey’s THE MONKEY WRENCH GANG, Douglas Brinkley predicted that, “like Rachel Carson’s SILENT SPRING, Abbey’s notorious novel will be savored because of its proactive defense of nature in an era of dangerous hyperindustrialism” (p.xxiv). Given the novel’s constant association with and inspiration for the eco-anarchist movement, whose disillusionment with the perceived pandering of the governmental environmental regulatory regime to developmental interests inspire the direct protection of threatened natural areas and interests, such predictions are valid. THE MONKEY WRENCH GANG is, undoubtedly, a novel that leaves the reader with a heightened attention toward the extent of industrialism’s reach into the realm of nature and is highly likely to spark fervor in those passionate about protecting the natural environment. While prominent, environmentalist themes in the novel are not exhaustive. One could even argue that environmentalism provides the subtext of a novel primarily concerned with the social and psychological dimensions of law. In this context, THE MONKEY WRENCH GANG is an effective pedagogical tool in courses dealing with social and political aspects of law, especially courses focusing on analytical concepts of jurisprudence.

Written in 1975, THE MONKEY WRENCH GANG follows the fictional exploits of four self-appointed eco-saboteurs as they work, tirelessly, to dismantle and retard the encroachment of industry and development into the Four Corners region of the American Southwest. The four members of the gang; an Albuquerque doctor, his artistic New Left nurse/girlfriend, a Jack Mormon river guide, and a Vietnam vet; develop a strategy of sabotage to protect the natural environment of the American Southwest during a rafting trip through the Grand Canyon. While Glen Canyon Dam remains simultaneously the epitome of industrialism and the ultimate target of their plans, the gang hones their skills on targets of increasing significance and risk. By uprooting surveying stakes, destroying bulldozers, and derailing coal trains, the gang attracts unwanted attention from Bishop Love, a local developer and head of the San Juan County Search and Rescue Team. As the novel progresses, the gang goes after bigger targets, comes increasingly closer to getting caught, and must run further and faster to evade capture. While a prologue foreshadows the survival of the movement, despite the ongoing success of industrialization and development, the story culminates in an extended chase through the desert canyons of Southern Utah, which is described by the author in a detail that captures the beauty, openness, and harshness of that environment in such a [*291] manner that the reader cannot help but be drawn in to believing that the end of this pursuit will determine the survival of the gang’s ideals.

While a more general and law-focused theme is present, the topic-specificity of the novel should not be ignored. The novel could be particularly pertinent for courses in environmental law and policy, illuminating radical critiques of environmental regulatory policy and confronting the effectiveness and appropriateness of the use of illegal strategies for achieving environmental ends. Even in non-topic-specific courses focusing on law, this story of radical environmental activism supplies ripe and plentiful material for classroom discussions on civil disobedience and other forms of righteous and goal-oriented law breaking.

A frequent symbolic devise utilized throughout the novel is the varying degrees of symbiosis with nature possessed by the protagonist saboteurs and the antagonist protectors of economic interests. Even the general public, present in the midst of a conflict about which they are seemingly unaware or ambivalent, are frequently portrayed as zipping by in “indifferent traffic…unseeing, uncaring, (and) untouched” by their surroundings (p.48). This symbolism signifies the presence of an underlying law of nature, of which the main characters are aware, and of which the remainder of society is ignorant or in blatant violation. The topography and biodiversity of the American Southwest is portrayed as if observed by a fervent naturalist, and the mere presence of human civilization in this environment appears to violate a rational order: while humanity suffers amidst the vinyl interiors of automobiles in the desert heat, “all sensible creatures are shaded up or waiting out the day in cool burrows under the surface” (p.4).

The law of nature provides the set of principles guiding the main characters; even as their actions take on an increasingly lawless character, the guiding principle of doing no physical harm to others, to aim one’s attacks on things and property, not people, remains in play. If read as a polemic, the novel provides students with ample fodder for debates on the appropriateness and effectiveness of the strategy of violating the law to achieve positive ends.

To read Abbey simply polemically, however, fails to engage the text fully. While the antics of right-minded lawbreakers are the salient moments of the plot, Abbey engages the reader in a discussion about the law itself as he delves into questions of analytic jurisprudence and responds with answers indebted to Marxian and critical legal theories. While the text is clear that laws may be unjust and, therefore, deserve to be broken, the text is not overt as to the origins of such unjust laws. When read alongside additional readings or lectures, however, the novel becomes an excellent tool to develop discussions on Marxian explanations of the formation of law. Beginning from the premise that “the state authority introduces clarity and stability into the structure of law, but does not create the premises for it, which are rooted [*292] in the material relations of production” (Pashukanis 1924), the student can engage the text searching for examples of laws which outwardly claim to be designed to protect the environment, but reflect objective power relations rooted in economic production. The concept of the ideological dimension of law is further developed by the spirit of the text. Abbey wrote his characters with a healthy dose of confidence and commitment, but even they are characterized by doubt and trepidation about their actions (p.189). By engaging in the novel, the reader experiences the reified power of law, whereby a transgression of the law becomes more than a transgression of “the natural prerequisites for the act of exchange;” it becomes a transgression of “the natural premises, or natural forms, of all social interaction” (Pashukanis 1924). As such, the student is forced to evaluate the objectivity of the law, as Abbey argues for an understanding of law based on power, not truth.

It is this concern, the ideological dimension of law, that forms the general theme of THE MONKEY WRENCH GANG, and the novel can be well utilized in the classroom when directed at this topic. The main characters of the novel are all characterized by a strong devotion to the protection of the natural world, but this concern is more for the freedom that wilderness provides. Their fear is a world of “perfect sphericity” (p.80) created by industrial forces which, as manifest in a dream of one of the saboteurs, is governed by the forces of conformity and control (pp.255-57). Their violation of the law does more than resist development; it makes them more human in a world being unraveled by desperate interdependence (p.42). The first act of sabotage performed by the main protagonist of the story is performed against a police car, a symbol of the institution of law itself (p.24). Such examples of the humanizing effect of the characters’ lawlessness provide segues into nihilistic traditions of jurisprudence, in which law is characterized by “the profound instinct that only automatism makes possible perfection in life and creation” (Nietzsche 1906).

Lessons in critical legal theory would also benefit from the novel, as the general theme parallels critical legal theory’s criticism of the liberal assumption of “the separation of law from other varieties of social control” (Hunt 1993). While Abbey’s characters must work to free their minds from the ideological constraints of the law, Abbey is silent about how such constraints develop in the first place, how the power base of law gains acceptance in the minds of those it controls, even to their detriment. In this regard, THE MONKEY WRENCH GANG functions less as an explanation of the principles of critical legal theory, and more as a resource to which such tools can be applied to hypothesize about a “process of mediation between professional consciousness and the formation of popular consciousness” (Hunt 1993).

A few issues should be considered before this novel is adopted for use in the classroom. At 421 pages, THE MONKEY WRENCH GANG is lengthy. The prose is simple and the reading is quick, but sufficient time must be available in the class schedule if students are to complete the novel. Furthermore, the colorfulness of Abbey’s language is not limited to imagery and metaphor. The novel is full of profanity, violence, sex, drug use and trivialization of differences of gender and race. College-aged students should be more than prepared to handle such material maturely, or at least in a manner [*293] that does not prevent learning the intended lesson. Professors uncomfortable with the use of risqué material in the classroom would be uncomfortable using this text.

My own experience in using THE MONKEY WRENCH GANG in the classroom has demonstrated that these negatives have a positive counterpart. The novel’s glut of sex and profanity, combined with Abbey’s engaging and humorous prose and several chapters dedicated to suspenseful exploits, pursuits, and escapes, provide a reading experience vastly different from the majority of the students’ academic reading experience. The result is that classroom participation is enhanced by the simple fact that more students will read the assignment. Another potential negative that can also improve the quality and quantity of classroom participation is the inconsistency of the novel. THE MONKEY WRENCH GANG is not a consistent explanation of legal theory. General acts of lawlessness are constantly qualified with “anarchy is not the answer” (p.74). The characters’ disdain for lawful civilization fades as they face the threat to their own survival in a harsh wilderness (p.366) and much of their avoidance of attacks on persons is more a product of luck than design. While the characters may defend such inconsistencies as rooted in their practice forming their doctrine, “thus insuring precise theoretical coherence” (p.69), the educator will find that such contradictions make for a text that invites discussion and debate as students choose sides and defend positions.

REFERENCES:
Hunt, Alan. 1993. EXPLORATIONS IN LAW AND SOCIETY: TOWARD A CONSTITUTIVE THEORY OF LAW. New York: Routledge.

Nietzsche, Freidrich. 1968 (1906). THE WILL TO POWER. Walter Kaufmann & R.J. Hollingdale, trans. New York: Vintage Books.

Pashukanis, Evgeny B. 2003 (1924). THE GENERAL THEORY OF LAW AND MARXISM. Barbara Einhorn, trans. New Brunswick: Transaction Publishers.

---

© Copyright 2008 by the author, Darren Botello-Samson.

Continue Reading...

OBJECTIVITY AND THE RULE OF LAW

by Matthew H. Kramer. Cambridge: Cambridge University Press, 2007. 262pp. Hardcover. $75.00/£45.00. ISBN: 9780521854160. Paper. $27.99/£15.99. ISBN: 9780521670104. eBook format. $23.00. ISBN: 9780511287398.

Reviewed by Stephen L. Elkin, Department of Government & Politics, University of Maryland. Email: selkin [at] gvpt.umd.edu.

pp.283-287

Is the rule of law a good thing? Matthew Kramer does not think so, at least not if the question is posed in this way. It might be good but that depends on moral-political considerations, in particular the purposes to which the rule of law is put. The rule of law itself is simply the result of a set of conditions, and its existence is morally and politically neutral: law is simply what a legal system properly defined produces, whether that is good or bad.

Readers familiar with the debate between H.L.A. Hart and Lon Fuller will recognize the provenance of this argument. It parallels the case made by Hart, but Kramer, strikingly, builds much of the book on arguments made by Fuller. He does so, by dividing Fuller into two theorists as it were: a positivist who argues, with Hart, that law is what comes out of a legal system defined by certain characteristics, and a normative theorist who talks about the “inner morality of the law.” In spite of Fuller spending a good deal of his intellectual life arguing that this division cannot be made – the empirical and normative are necessarily joined with regard to the rule of law – Kramer thinks little if anything is lost and much is gained by doing it. The result is too often unconvincing, with the result that his effort to outline, at least partly, a philosophy of law is substantially weakened.

But before getting to these matters, it is important to note that the book is presented as an introduction to the topic of the relation between objectivity and the rule of law, and is part of a series of Cambridge University Press introductory volumes on philosophy and law. One wonders, however, for whom this particular volume is meant as an introduction. Certainly American undergraduates, even very bright ones, are unlikely to get very far into the book once they realize they are going to be dragged through a bevy of distinctions (about 100 pages worth) on types of objectivity which, if they are going to follow them, will require that they remember with some precision the meaning of terms such as “determinate concreteness” and “transindividual discernibility.” Of course, it might be that such a detailed – and I am sorry to say rather clumsily written – discussion might be necessary for a competent understanding of the rule of law, but, as I will say in a moment, this is apparently not the case. So, the book will not well serve such students. Alas, it is also not likely to be a very useful introduction for scholars who want to get a sophisticated overview of a field about which they know little. Not the least of the reasons is that Kramer regularly says that he cannot go into this particular argument because space forbids it. But too often this is exactly what a scholarly reader [*284] will want. The book is then not for him or her. What then about graduate students? A case could be made in behalf of the book in this respect, but, for myself, I would be disinclined to assign a book to a graduate student trying to work up a field in law and philosophy that uses Fuller’s argument in exactly the way he argued against and that fails to give any real sense of why he argued as he did. Better to assign Hart and Fuller themselves.

Again, before turning to the division of Fuller, there is a puzzle in the way that Kramer wends along his positivist way. On page 109 he says that Fuller’s eight elements of what makes for a legal system are necessary if it is to exist, while on page 143 he says they are necessary and sufficient. Quite apart from the obvious ways in which the difference between the two matters, it is worth considering what the difference means for matters of practice. Of considerable importance in this regard, it is worth noting that if the elements of a rule of law system are necessary but not sufficient, those who wish to realize it will likely run into the following problem: they can make progress in serving some of the other non-necessary conditions but at the cost of reaching whatever threshold is needed for elements that define the rule of law. Concretely, a common problem for those concerned with promoting the rule of law is that the kind of democratic politics that holds a regime together – a variety of favors and political deals – will often make it harder to put in place elements of the rule of law such as implementing the law on the books. Now Kramer in his discussion in this book of what a legal system is, is not concerned with the problem of creating one, but if he is otherwise so concerned, then it matters very much which it is: the elements are necessary, or necessary and sufficient. Perhaps the matter could be put this way: if the rule of law requires something more than the standard elements such as lack of contradictions, generality, and so on – these are necessary but not enough – and the rest of what is needed includes features of democratic political life, then not only will positivist accounts of the rule of law need to look different than they typically do, Kramer’s included. These accounts will also soon become embroiled in the kinds of questions of good practice that they are designed to avoid as they go about defining just what a legal system is.

An additional problem – not in the first instance a matter of practice – arises if the elements of a legal system are necessary but not sufficient: why single out the particular elements Kramer does and not others? Although it is certainly possible that Kramer could show that there are no other necessary conditions for a legal system to exist, it would be nice to have an argument to this effect since it might be that when closely examined, the conditions that make for sufficiency – that are not only necessary – have (again) a certain normative character. Might we not end up having to mix positive and normative elements in our definition of a rule of law system as the distinction between necessary and sufficient proves difficult to maintain? My worry here leads me to raise the more general and important question of whether dividing Fuller’s soul into positivist legal scientist and normative legal philosopher, and with him, much of legal theory is both compelling and valuable. I will proceed by example. [*285]

Kramer notes, with many others, that legal norms must be “addressed to a general class of persons” (p.110). But is it really the case, as he argues, that this is a morally or political neutrally matter? Such a norm, he says, must and will be at work in a legal system with malevolent purposes as well as in good ones. Simplifying a bit, Kramer’s argument here is that, since legal systems are designed to coordinate behavior – any sort of behavior, including slavery and the like – a system that lacks this kind of generality simply cannot function and as such will not be a legal system at all. Really? Many readers will be able to think of legal systems – that is, systems that indeed coordinate behavior above the kind of threshold Kramer regularly invokes (without being very specific) – and that conspicuously do not regularly address legal norms to such a class of persons. The American system of slavery is an obvious example: behavior was nicely coordinated, one might say, but by definition there was one law for the slaves and one for the free. How about caste systems? The answer is plausibly much the same. It is easy enough to see what the problem is: by talking about ‘coordination” of behavior and the like, Kramer means to say that generality is needed not because it is a good thing – a legal system can be used for evil purposes – but for the morally neutral purpose of , we might say, efficient behavior. But once it is clear that we can have lots of coordination and limited generality – at least with regard to what most people would consider the most important areas of life, e.g. the ability to buy and sell property (historically denied to classes of people) as opposed to say traffic laws where slaves might be addressed in the same fashion as the free – then the natural conclusion is that we prefer generality for normative reasons. That is, we prefer it for just the reasons for which proponents of the rule of law have generally argued: it is unjust to use the law to pick out certain people or class of peoples and treat them badly. More importantly, it tells us that some kinds of failures of generality are a good deal more important than others for moral-political reasons, and thus why we should set the threshold for defining whether we have the rule of law in one place rather than another.

Much the same point can be made with regard to whether the legal rules can be readily known by those to whom they are addressed. Kramer comments (p.113) that if they are not generally known “the ostensible legal system would be thoroughly inefficacious in channeling people’s behavior.” Well, yes, if they are little known across all or most domains of behavior. But how about if the rules concerning what a political crime is are mostly secret while the rules about crossing the street, getting a residence permit and who is eligible for what state benefits are well known. And suppose that the authorities secretly define what is covered by the idea of a political crime very broadly, are people’s behavior channeled? Yes indeed, except that some non-trivial number of these people are being channeled right to the gulag. But that is, of course, not the real point, except for those who get sent there. It is rather that talk about channeling behavior does not settle the question of how much and indeed what kind of publicity of legal norms is needed if there is to be a legal system. Once again, the old time religion of the rule of law suggests that how much publicity about what legal norms is best [*286] settled by looking to normative-political criteria.

In the end, I think the question is partly – to stretch a term – ideological. The real choice is how we prefer to think about the world. As a matter of fact, I think, legal positivism cannot be sustained for reasons suggested above. But I would rather, for the moment, put the point this way. What is to be gained by talking about a malevolent rule of law system. The answer presumably is clarity: the rule of law is one thing, a good rule of law another. But if this pushes us into saying that either there was or was not a rule of law system at work in the United States in 1860 (I use this example to avoid the outrage engendered on both sides of the legal positivism debate when Nazi Germany is introduced), then I am dubious about the gain in understanding the rule of law or the United States. It would be a lot more helpful to say that in the 1860, the US had a very flawed rule of law: it worked reasonably well for white people and barely at all for black people, and that, starting with the Civil War amendments, the US moved closer to a full realization of the rule of law – and that was altogether a good thing. In short, it is clearer to say that the rule of law just is both a normative and empirical concept – and it is thus both easy and natural to talk about more or less of the rule of law and why we want more of it. I do not mean to say here that positivists cannot usefully talk about good practice with regard to the rule of law. I just prefer fewer intellectual handstands than they habitually make in efforts to do so. I do not myself find that I have any trouble keeping clear which are normative and which empirical factors when I say they are joined together in the rule of law. It does not seem any harder than remembering that there can be a malevolent rule of law system. Similarly, I do not ordinarily get baffled looks when I say things like, the generality of law helps coordinate behavior and is also necessary for justice. I would even go so far as to say that I might get looks of comprehension if I said that any plausible account of what it means to coordinate behavior leads us to questions of efficiency and Pareto optimality – and that these in turn are species of utilitarian judgment. I might even get a smile when I conclude that even if coordination could be separated off from justice or fairness, it would thus still be a normative judgment.

In this context, it is worth emphasizing that Fuller was a lot clearer than Kramer (although not as clear as he might have been) about the kind of normative purposes the rule of law serves. He was concerned not with some abstract conception of coordinating behavior – assuming that were possible to define, which I doubt it is. Rather, Fuller was a liberal and ultimately valued law as a (perhaps the) way of making it possible for individuals to pursue their purposes in effective ways. Law is the servant of liberty – and the internal morality of law is inextricably linked to the external morality of liberalism. Now, it is of course possible to have a measure of the rule of law in broadly non-liberal regimes. But, alas, for the proponents of such regimes, the rule of law inevitably provides a measure of individual liberty within them. Fuller, I believe, would have agreed.

Perhaps a good way to formulate the difference in view between Kramer and me (not to mention between Kramer and [*287] Fuller as he wrote as opposed to the dismembered Fuller Kramer presents) is whether the moral-political value of the rule of law is external to it or internal to it, it’s inner morality. I will only add in this regard that I suspect that we would all be better off if we stopped writing about the virtues of positivist and other views of the rule of law, and examine what difference it makes for our understanding of, say, the Polish legal system in 1960 if we approach it a la Kramer or Fuller. I would say much the same thing about how much is to be gained in such understanding if we traverse Kramer’s discussion of objectivity – the connection to his positivism being that both stem from an aspiration to be scientific: opinion and normative matters are to be sternly put aside. Kramer tells us after the almost 100 pages on objectivity, and about 40 pages from the finish of a 232 page book, that “nothing of practical importance will be settled by reference to” his discussion of “mind-independence.” This is the first aspect of objectivity he discusses in the book.

---

© Copyright 2008 by the author, Stephen L. Elkin.

Continue Reading...

THE HUMAN RIGHTS IMPACT OF THE WORLD TRADE ORGANIZATION

by James Harrison. Portland: Hart Publishing, 2007. 292 pp. Cloth $105.00/£50.00. ISBN: 9781841136936.

Reviewed by Wesley T. Milner, Department of Law, Politics and Society, University of Evansville. Email: wm23 [at] evansville.edu.

pp.280-282

In this age of rampant integration, much has been written about the increasing presence of international organizations such as the International Monetary Fund, International Bank for Reconstruction and Development (World Bank) and the World Trade Organization. At least since the violent protests which began in Seattle almost a decade ago, these Bretton Woods institutions have generated much controversy. The WTO, being the latest and arguably most powerful player on this international financial world stage, emerged from the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1995.

During this same period, numerous scholars have tackled the thorny and complex issues surrounding human rights, especially in relation to the world economy and globalization. Much of this has focused on trade surrounding multinational corporations and the impact on various aspects of human rights (e.g., physical integrity rights, subsistence rights, economic rights, and the like). In an audacious move, James Harrison attempts to answer the very salient question of how the international trade regime actually impacts the realization of human rights.

From the outset, Harrison takes a legalistic approach in pitting the very distinct international trade law against international human rights law. Here, he makes no bones in claiming international trade law can only be viewed as legitimate as long as it fosters social justice. He argues that it is imperative for the WTO to be viewed by its constituents as substantively promoting justice if it is to continue to develop and even ultimately survive. He concurs with human rights intergovernmental organizations that there should not be a tradeoff between these systems, but rather the WTO should employ decision-making that insures human rights norms. In this context he does weigh the relevance of other potentially competing organizations, such as various United Nations bodies and the International Labor Organization.

Harrison begins his detailed intersection of these two systems by succinctly discussing the theoretical and historical underpinnings of the international trading system as manifested through the WTO. Two central questions are posed that frame much of the rest of the work: Do WTO procedures provide space for human rights norms or at least not stymie other (better suited) institutions in promoting these objectives? Further, does the opaque nature of WTO legal duties prevent the 151 member states from promoting or protecting human rights?

Chapter Two provides a firm justification for the human rights methodology in analyzing the international trade regime. In adeptly rejecting a number of cultural relativist [*281] arguments, Harrison lays out a legal positivist approach as codified in international legal instruments (e.g., Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, and so on). Further, he posits in no uncertain terms the universality and inseparability of economic, cultural and social rights (referred to by some as second generation rights) with civil and political rights (so-called first generation rights).

Chapter Three builds upon the previous chapter to convince the reader that adopting this human rights approach to trade law can move the trading system toward a more socially just scenario. While some human rights promoters are coming to realize that the trade regime could enhance human rights, the reverse has not necessarily been the case. Social justice concerns are rarely considered in WTO deliberations because it is viewed that this approach will hamper consensus on the trade front. Harrison argues that a liberalized, yet regulated trade system can benefit human rights as long as there are safeguards for addressing negative social impacts. Indeed, there may be little alternative to utilizing the WTO apparatus in promoting human rights. In this section, the author provides a succinct but very effective and balanced overview of the potential benefits of trade openness in relation to poverty reduction and development. In essence, the system has to insure that those on the short end of the trade liberalization stick not be stripped of their basic needs (although Harrison does not stipulate what level of basic human needs is required). This is a direct challenge to the welfare economics approach based at least in part on aggregate welfare improvement. Eventually, Harrison forcefully lists four reasons for viewing the WTO through human rights lenses: 1) trade liberalization is not a magic elixir for equitable economic growth; 2) the current WTO system is not an optimal system of free market guidelines; 3) even optimal open markets may not be ideal for human rights realization; and 4) an implicit human rights approach is more likely to bring about market-oriented rather than holistic conceptualization of human rights.

The second part of the book focuses on legal issues in assessing the human rights impact of the trade regime. After laying out the legal framework and methodology for dealing with human rights in the trade law context, Harrison spends the next three chapters (five through seven) illustrating conditionality-based measures (both in multilateral and unilateral situations). Here, one WTO member state makes its own trade with another state “conditional” on the other state’s human rights performance. Though he acknowledges the very contentious nature of using trade restrictions to protect and promote human rights, Harrison provides institutional support (e.g., UN Charter, ILO, Kimberly Process and conflict diamonds, and the like) for such tactics. Although there are some potential limits to a multilateral approach, Harrison saves his most skeptical assessment for the unilateral cases. Here, he feels that individual states may fear retaliation by WTO for employing unilateral actions. Further, conditionality in regional trade agreements and generalized systems of preferences may lead to fragmentation of international standards. [*282]

Chapters Eight and Nine bring in compliance and cooperation-based trade measures employed to address human rights deficiencies. Here, the effectiveness of the Office of the High Commissioner of Human Rights (OHCHR) as well as the issue of Trade Related Aspects of Intellectual Property Rights (TRIPS) and access to pharmaceuticals in developing countries are examined. Although there are mechanisms in WTO agreements for addressing human rights, the TRIPS and access to medicines debate (specifically in South Africa and Brazil) expose the obvious and fundamental differences between human rights and international trade law. Indeed, while there appears to be a fragile consensus that dire public health issues like HIV/AIDS trump intellectual property rights, there is still great division as to how (and to what degree) these theoretical ends should be achieved.

The last section of the book proposes strategies for protection and promotion of human rights in international trade law. Harrison correctly posits that different aspects of human rights need different treatment under international trade law, and that attempts to circumvent the WTO in relations to human rights is extremely problematic (i.e., we have to work through the existing structure). In that light, very detailed suggestions are laid out in Chapter Eleven, which argue for raising explicit human rights arguments in WTO dispute settlement proceedings. In short, utilizing general exception clauses are seen as the only viable option that can protect the complete menu of human rights concerns at the WTO. He believes that in the very near future we will see increasing test cases before the WTO dispute settlement bodies, forcing the institution to address legal claims based on human rights. Noting that the above is not sufficient, Harrison concludes with four final prerequisites: 1) human rights violations as a result of international trade law must be identified; 2) international human rights norms and obligations must continue to be further specified; 3) more clarity of relationship between the WTO and human rights must be realized so state action will be taken without fear that WTO obligations are being violated; 4) the state-centered trade regime in respect to human rights protection and promotion must be reassessed.

Throughout each of the chapters, Harrison takes great pains to lay out what he will cover, how it relates to the broader subject of promoting and protecting human rights, and concludes with a distillation of the complex issues raised in each section. The work is excellent in merging complex theoretical issues surrounding human rights norms and real-world situations and cases of globalization and increasing trade liberalization and integration. While perhaps a bit pedantic for those readers well-versed in international trade law, it proves somewhat useful for the more general scholar in navigating what might otherwise appear to be an arcane world of the WTO. Having said that, this is not a primer on the WTO, but rather a very detailed and narrow approach (focusing almost exclusively on human rights applications) to this important world body.

---

© Copyright 2008 by the author, Wesley T. Milner.

Continue Reading...

LITTLE ROCK ON TRIAL: COOPER v. AARON AND SCHOOL DESEGREGATION

by Tony A. Freyer. Lawrence, KS: University Press of Kansas, 2007. 274pp. Hardcover. $35.00. ISBN: 9780700615353. Paper. $17.95. ISBN: 9780700615360.

Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.

pp.276-279

The modern conservative movement is built upon a few axiomatic principles: lower taxes, smaller federal government, a stronger military. Launched in journals and conservative think tanks from the 1950s to the ’70s, much of today’s conservatism owes its origins to the perceived excesses of the welfare state first erected in the New Deal and expanded in the 1960s. Americans for Tax Reform Founder and President Grover Norquist’s oft-quoted comment that government must be cut so that “we can drown it in a bathtub” represents the quintessential goal for many conservatives: the full and complete dismantling of the American welfare state.

Another, perhaps less well recited, axiom of the conservative movement is the need to expunge the courts of activist judges. Many who rail against judicial activism get their bearings from the evangelical movement in America: in these quarters of conservatism, the ROE v. WADE decision of 1973 was a perfect example of activist judges gone wild. To the Christian right, Justice Blackmun’s opinion showed no judicial restraint whatsoever; he and his liberal colleagues who signed ROE remain Exhibit A in the case against legislating from the bench.

Certainly the religious right has used judicial activism as a rallying cry in the last three decades, with varying degrees of success. Yet, the “movement” against judicial activism is older than ROE v. WADE, and predates the ascendancy of social conservatism in America. As Tony Freyer’s LITTLE ROCK ON TRIAL implies, its roots can actually be traced to the backlash against BROWN v. BOARD OF EDUCATION and subsequent civil rights cases. While Freyer does not directly address the connection between the legal resistance to desegregation in the South and the ongoing movement to overturn ROE, one cannot help but take note of the continuity in arguments against judicial activism by southern segregationists on the one hand and by Christian evangelicals and fundamentalists on the other.

The specter of judicial activism lurks in the background of Freyer’s rich and unceasingly detailed book, while the main focus centers on the history of the Little Rock Nine and the events that led to the Supreme Court’s decision in COOPER v. AARON in 1958. After the BROWN decision, the Little Rock school district came up with a school desegregation plan. At the same time the Arkansas Legislature was in the process of amending the State Constitution, effectively making desegregation illegal [*277] as a matter of state constitutional principle. The state legislature then passed a law which relieved any student of the duty to attend desegregated schools. In the fall of 1957, Little Rock High School had begun to desegregate – over the objections of state and local officials, to international attention, and ultimately through the intervention of President Eisenhower. Several months later, members of the School Board in Little Rock initiated a lawsuit asking the courts to suspend the desegregation plan. The Federal Court of the Eastern District of Arkansas upheld the suspension in February 1958 in AARON v. COOPER. But the Court of Appeals for the Eighth Circuit overturned the lower court decision, setting the stage for the US Supreme Court decision later in 1958.

The Court announced its unanimous opinion in late 1958. In it the Court held that the Little Rock school board had acted in good faith and in accordance with the BROWN decisions to desegregate “with all deliberate speed.” Moreover, the Court reasoned that the Supremacy Clause of the US Constitution and MARBURY v. MADISON (1803) gave the Supreme Court the authority to declare any act by the Arkansas Legislature unconstitutional if it violated the US Constitution or any of Court’s decisions – in this case, BROWN I and II. In a separate concurring opinion, Justice Felix Frankfurter argued forcefully that, by willfully resisting the Court’s decisions, members of the Little Rock community were inviting chaos. Freyer writes:

Like the majority opinion, Frankfurter’s concurrence targeted the claim that disorder justified delaying enforcement of the desegregation order. “No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force,” he said. “To yield to such a claim would be to enthrone official lawlessness, and lawlessness if not checked is the precursor of anarchy” . . . The shared supremacy of the Court decisions and the Constitution was especially binding where such decisions resulted not from a divided Court, but “were the unanimous conclusion of a long-matured deliberative process” (p.186).

Freyer’s narrative throughout LITTLE ROCK ON TRIAL is rich and filled with excruciating detail – so much detail, in fact, that at times the reader is left dizzy with the depth, breadth and minutia of the storyline. Professors who teach courses in the history of the Civil Rights Movement and Constitutional Law will find this book a worthy case study and companion to the numerous texts which focus on the BROWN decision. At times, the reading flows smoothly; at others it is rather coarse. Though the story of the Little Rock Nine is well known, Freyer largely stays clear of making them the centerpiece to his work. It is a wise decision. The most fascinating sections of the book are those that focus on the legal strategy in and out of the courts and the courts’ responses - particularly Chapter 5 as Freyer leads the reader through the thought processes of the Justices as the Court prepared to announce its opinion in COOPER v. AARON. The backstory to the decision, and the jockeying between Brennan, Harlan, Warren and Frankfurter as the latter prepared his concurring opinion, is something Supreme Court scholars will relish.

As rich as the book is in narrative, Freyer’s attempts to contextualize his [*278] account in a theoretical discussion of the role of the courts in a democracy, or the philosophical justification for judicial activism fall a bit short. Here I wish to come back to the concept of judicial activism for a moment. In the introduction, Freyer indirectly seeks to build a case about the nature of Supreme Court opinions in a democracy – and the need at times for the Court to practice “judicial activism” when the other branches of the federal government are not particularly interested in protecting fundamental rights. Furthermore, Freyer argues that the BROWN decisions and their progeny were vital in igniting the Civil Rights movement. Court decisions in Freyer’s view were consistent sources of inspiration to Martin Luther King, the NAACP, and activists all over the South who were seeking to dismantle segregation.

In other words, Freyer makes the argument that the “courts matter” and that sometimes “judicial activism” is necessary. Noted – but here Freyer may have done well to engage and situate his work within two bodies of scholarship which Gerald Rosenberg in his book THE HOLLOW HOPE addresses: the Dynamic Court view and the Constrained Court view. On one side, many scholars have argued that the courts are effective producers of social change; on the other, there are those who say that, although the courts can point the way to a brighter future, ultimately they need the other branches of government to act. Freyer seems to be arguing in the Dynamic Court vein; Rosenberg’s book takes the Constrained Court perspective. Situating his work within this literature may have grounded Freyer’s work more theoretically.

This brings us back to the concept of judicial activism – something which lies at the heart of Freyer’s work but always lurks just beneath the surface. If judicial activism is defined as the Court’s willingness to overturn precedent or the actions of the other branches of government to attain certain social or policy goals, then decisions like BROWN and COOPER indicate the best we can expect from an activist court. As Freyer makes clear, little would have changed had it been up to those states hostile to civil rights in the first place or a federal government largely paralyzed and intransigent. Civil rights activists were emboldened by the courts. It is certainly no coincidence that the Montgomery Bus Boycotts occurred after BROWN I and II – not before.

Judicial activism can ignite a spark; this is ultimately the message of LITTLE ROCK ON TRIAL. And yet, as Freyer tries to come to grips with this in the closing chapters, the success of the judicial activism the courts practiced from the 1950s on in the area of civil rights is mixed: “Activist federal authority like that enforced in Little Rock and COOPER v. AARON was necessary for progress, but such progress was ambiguous” (p.230). The reason is clear: in the end judicial activism can be undemocratic in the sense that court decisions sometimes fly in the face of voting publics. This is the sordid history of school desegregation in the South: the activist courts found themselves at odds with democratic majorities determined not to integrate their schools. As dynamic as the courts are in Freyer’s account, sooner or later the courts will be constrained by voting majorities – for better or for worse. [*279]

In the end, it is perhaps no coincidence that in the same part of the country which railed against judicial activism and an overbearing federal government in the area of civil rights, we see an ongoing movement to end the “judicial activism” of the courts in the area of abortion rights.

REFERENCES:
Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION (I) 347 U.S. 483 (1954).

BROWN v. BOARD OF EDUCATION (II) 349 U.S. 294 (1955).

COOPER v. AARON 358 U.S. 1 (1958).

MARBURY v. MADISON 5 U.S. 137 (1803).

---

© Copyright 2008 by the author, Christopher Malone.

Continue Reading...

THE CULTURE OF VENGEANCE AND THE FATE OF AMERICAN JUSTICE

by Terry Kenneth Aladjem. New York: Cambridge University Press, 2008. 266pp. Cloth $85.00/ £45.00. 9780521886246. Paper $26.99/£16.99. ISBN: 9780521713863.

Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: whitley_kaufman [at] uml.edu.

pp.272-275

Terry Aladjem, a lecturer in Social Studies at Harvard, raises in his new book the problem of the peculiar vindictiveness of American culture. Consider for example the astonishing growth in the United States prison population. More than one of every hundred adults in this country is now in prison, and the US leads the world in the number and percentage of citizens behind bars. The American response to terror attacks has also been dramatically different from that of Europe’s; in response to the 9/11 attacks, the US started not one but two wars, with the aim of, as the common phrase went, “bombing them back into the stone age.” What is equally extraordinary is that both the wars and the incarceration explosion have largely been pursued with only the most minimal attention to the costs, not only the overall financial costs but also the human costs to those affected (the casualties in Iraq, and the effects on prisoners and their families). It is quite amazing how little attention has been paid to the basic question of whether the unprecedented boom in incarceration has in fact even reduced crime significantly, or whether the benefits of the reduction are worth the costs, or whether other methods of reducing crime (including anti-poverty programs) would be more effective, cheaper, and less harsh. What could explain this development?

Aladjem aims to explain this phenomenon through a study in political theory. The ambitions of his book are remarkable. Aladjem purports to account not merely for the rise of vengeance, but also such cultural developments as sadomasochism, bungee jumping, gambling, televangelism, life insurance, the fascination with hemorrhoids, and the AIDS Quilt, among other things. But even more extraordinary are the conclusions he draws about liberal democracy. Liberalism, he declares, may be “founded on a mistake – revenge is neither left behind in nature nor comfortably transformed in legal justice” (p.50). Our society subscribes to the comfortable “myth of justice,” by which the irrational desire for vengeance has been transformed into the rational demand for justice. But, Aladjem claims, this is not only a fiction, but a dangerous deception. It is a central failing of liberalism that it is unable to confront directly the desire for revenge, leaving us in a state of “contradiction” such that the official justice system “denies vengeance” while the culture is “utterly obsessed” with it (p.2). But vengeance is incompatible with democracy, since revenge is essentially “authoritarian” in nature. And this is a very dangerous situation, Aladjem warns us, one with “extraordinary implications” for our present “cultural crisis” (p.46). We may even be at a [*273] breaking point, where the “ill-founded attempt to rationalize punishment and to deny its vengeful aspect has reached a point of intolerable stress” (id.). For Aladjem, we are in urgent need of major reforms in our criminal justice system, in order to make our system of punishment truly democratic, in that it shows respect for the criminal, does not coerce morality, does not punish vindictively, and recognizes its own fallibility.

The question is whether Aladjem has made an accurate diagnosis of the cause of the rising tide of revenge and punitiveness. Here one begins to wonder. He argues that the notion of “justice” by which we carry out punishment is actually merely a cover for the vengeful impulses that dare not speak their name. This is not a new idea, and has been developed by both Susan Jacoby (1983) and Dan Kahan (1999) (the latter of which, oddly, Aladjem does not mention). And it is increasingly accepted among moral philosophers that retributive justice is but a euphemism for the sentiment of revenge. Where Aladjem differs is in his unrelentingly negative portrayal of the vengeful impulses. It is a truism that vengeance can be excessive, blind, and indiscriminate. But for Aladjem, vengeance is always and necessarily excessive, devious, indiscriminative, irrational, arrogant, vain, authoritarian, harsh, and even self-deceptive. It intrinsically lacks humility, respect for the other, or a sense of fallibility. It is thus incompatible with a liberal democracy founded on the idea of agnosticism about ultimate truths and moral certainty.

But why should we accept this extreme and one-sided portrayal of revenge? A number of commentators defend the idea of personal vindication, so long as it is measured, proportionate, and reflective (Susan Jacoby, Jeffrie Murphy, Peter French). And Aladjem seems to be unaware of the fact that Aristotle (whom he cites as an expert on tragedy) asserted that a virtuous person should exact proportionate retaliation against a serious wrong, so long as it satisfies the Golden Mean: neither too much nor too little. Aladjem does not even consider the possibility that revenge could be anything other than blind, excessive, and irrational (not to mention self-deceptive and arrogant). Nor does he give us substantial arguments or reasons why we should believe this portrayal of vengeance, relying mostly on literary illustrations of revenge, including Achilles’ rage against Hector, or Hamlet’s desire to send Claudius’ soul to eternal fire. But why must we assume that a person desiring revenge assumes infallibility and moral certainty? (Ironically, Hamlet suffers from just such doubts about whether and how to take revenge). To be sure, the question of whether vengeful feelings are morally permissible or not is a difficult one. But it will not help this debate to provide a straw-man version of them.

It is thus difficult to accept Aladjem’s insistence that vengeful feelings are necessarily authoritarian and incompatible with democracy, or that liberalism suffers from a profound theoretical contradiction, let alone his alarmist suggestions that modern democracy is reaching a stage of crisis. It is of course a puzzle why America has moved down the path it has. But the fundamental flaw with Aladjem’s explanation becomes apparent when it is observed that the problem is uniquely [*274] American, and not one that is universally experienced in modern liberal democracies. If anything, the majority of modern democracies (Canada, Australia, Europe) are moving in the opposite direction, towards eliminating the death penalty and reducing punitive sentences. But this undercuts Aladjem’s thesis, for then the explanation of America’s trend must be found not in some purported intrinsic contradiction at the heart of liberal democracy, but in something unique about the American situation. Unfortunately, his book does not address this more interesting question: why has America taken this vindictive turn, unlike other democracies? Aladjem seems only barely aware of the problem; he suggests that the problem may be limited to “our particular democracy” (p.xix), but gives no explanation of what is unique about our democracy, why it has caused the rise of vengeance, or why other democracies have gone a different path. In any case, it is evident that there is nothing intrinsic to liberal democracy that creates this problem. In order to address the problem of American uniqueness, he would of course have to give a very careful and precise definition of “liberal democracy” and of how the American version of it differs from that of other countries. But this he does not attempt to do.

Furthermore, for all Aladjem’s alarmism, the “extraordinary implications” for reform that he suggests turn out to be surprisingly bland. We should recognize our fallibility, he insists, and punish with restraint and only use coercion as a last resort. But what moral philosopher would disagree with this, even those who defend the role of vengeful impulses? The state, he says, has a duty to the offender to “listen to him wherever that is possible” (p.165). It is difficult to evaluate this claim, since what counts as “listening” is highly contestable; Aladjem’s elaboration that we should provide a “discursive exchange in which one might hope to be understood” (p.166) is not very helpful (the use of italics for emphasis is no substitute for careful exposition). Every offender already has a right to be heard in court and to confront witnesses against him, and a right to a lawyer: why precisely is this insufficient? More concretely, Aladjem calls for eliminating the death penalty. His argument against the death penalty is one that has been rehearsed many a time: that it is irrevocable and therefore inappropriate given the possibility of error. Aladjem does not however address the classic responses to this argument, that a sentence of imprisonment is equally irrevocable, since one cannot give back those years of freedom taken from the prisoner (this oversight is remarkable, since Aladjem repeatedly criticizes vengeance for falsely believing that it can remake the past), and moreover one might equally say that the solution is to retain the death penalty, but apply it only rarely and only with a requirement of super due process. The death penalty does not by its nature assume infallibility. This is not to defend the death penalty, but only to suggest that one cannot dismiss it simply by labeling it as “authoritarian.”

Aladjem also calls for eliminating the practice of shaming or humiliating offenders, for this would be “indifferent to their subjectivity” (p.166). But once again it is hard to find much of an argument here, let alone one that can be deduced from the very structure of [*275] democracy. In fact, throughout the book Aladjem writes as if there were universal agreement on what the moral foundations of liberal democracy are, or even what liberal democracy means. But of course there is no such thing, and the claim to be able to derive specific policy conclusions from any such theoretical foundations is unconvincing, to say the least. And even if we enacted these reforms, it is hard to see how this would defuse the “crisis” or resolve the “contradictions” in liberalism. How do we contain or control the vengeful impulses? Will denying them an outlet make them worse? How exactly does one resolve a “contradiction” in a political system? What is missing is the deeper philosophical framework with which to approach the problem of vengeance.

Aladjem is not shy about making grand pronouncements about our culture, politics, and society: he declares that “we have been punishing from the wrong paradigm” (p.164), that the modern world has a radically new conception of evil (p.72), that liberalism contains two distinct principles of authority (p.148), that modern liberal democracy is internally contradictory, and that it is on the verge of a major crisis, among other things. But to establish such bold conclusions in political theory, criminal justice, and even theology will require far more careful philosophical argument and profound engagement with the current and past philosophical literature. The use of idiosyncratic interpretations of literary texts or cultural symbols and a handful of legal anecdotes to demonstrate how justice can go awry is no substitute. Ultimately, the book comes down largely to Aladjem’s expression of a desire for a kinder, gentler and less punitive America. With this sentiment many people will heartily agree. But I imagine few will be convinced by his claim to have discovered a new and devastating contradiction at the heart of liberal democracy, or his prediction of an imminent crisis in our culture, or his claim to have discovered a way to save our political system from itself.

REFERENCES:
Jacoby, Susan. 1985. WILD JUSTICE: THE EVOLUTION OF REVENGE. New York: HarperCollins.

Kahan, Dan M. 1999. “The Secret Ambition of Deterrence.” 113 HARVARD LAW REVIEW 413-500.

---

© Copyright 2008 by the author, Whitley Kaufman.

Continue Reading...

THE LAW AND SOCIETY CANON

by Carroll Seron (ed). Burlington: Ashgate Publishing Co. 2006. 604pp. Hardcover $275.00/£145.00. ISBN: 9780754625094.

Reviewed by Elizabeth Loeb, Institute for Law and Society, New York University. Email: Elizabeth.Loeb [at] alumni.brown.edu.

pp.267-271

There is no inheritance without a call to responsibility. An inheritance is always the reaffirmation of the debt, but a critical, selective, and filtering reaffirmation, which is why we distinguished several spirits. (Derrida, 1994).

In her edited volume, THE LAW AND SOCIETY CANON, Carroll Seron offers “a brief tour through the research essays that shape the discipline of law and society.” In offering this tour, Seron provides an excellent and well-curated resource that will be of much-appreciated use to anyone who wishes to engage with the discipline now known as Law and Society.

Simply collecting and thematizing the seventeen pieces, all published between 1961 and 1992, would have been a great help to students. Seron adds significant value to the collection however, by arranging the pieces into six topical categories, the names of which, (Socio-Legal Theory, Disputing, Courts and Local Legal Culture, Lawyers, Policing, Administrative Law), are themselves a road-map of Law and Society’s intellectual development. Seron deepens her contribution further by prefacing the collection with a concise and insightful introduction. I gladly admit that I would have been thrilled to have had Seron’s book while studying for my Ph.D. comprehensive exam, and that I would turn to it eagerly were I teaching a course on the core concepts of Law and Society. I recommend THE LAW AND SOCIETY CANON to anyone interested in Law and Society as an academic discipline.

At the same time, I will use this review to consider whether THE LAW AND SOCIETY CANON misses a ripe opportunity to engage critically with its own announcement of canonization. How have the boundaries of this canon been drawn? What are the politics of consolidating Law and Society as a discipline with the particular intellectual history that Seron presents?

Most, though not all, of the collected pieces in THE LAW AND SOCIETY CANON were written by scholars who identify as white men. While some of pieces comment on legal practices outside the US, and while one of the pieces considers the complexities of US immigration policy, none of the pieces directly grapple with raced, sexed or gendered experiences in the United States. Although almost all of the essays reshape and reform the dominant view of law and jurisprudence found in mid-century US law schools, even those from the 1980s and early 1990s side-step the revolutions in legal scholarship that were occurring at the time under headings such as Critical Race Theory, Critical Legal Theory, Disability Studies, Queer Theory, Radical Feminism, Chicano/a Studies, and Third World Feminism. [*268]

Seron does not discuss how or why she chose the pieces that she did, or how the boundaries of the “canon” are drawn. Certainly, my own studies in Law and Society lead me to believe the essays Professor Seron gathers are all indeed major contributions, and that a critical mass of Law and Society scholars consider the essays to be, in fact, foundational. What is missing then, is an engagement with the politics of canonization itself – an omission that seems especially perplexing in a discipline that so intimately traces practices of dominance and power.

To be fair, Seron does provide a context for the CANON, narrating the history of Law and Society as something that transformed from a loose field and association of scholars and activists to a “taken-for-granted discipline” that can be found at most colleges and universities in the US and elsewhere. This sense of arrival and consolidation seems to ground Seron’s decision to attach heft of “canon”: to the essays she collects. Seron acknowledges that “a canon of texts is both the objectification of a social process and a discursive engagement that ‘mutates continuously’ in the frictional spaces of institutional reproduction” (p.498, citing Guillory, 1987). Why then, does Seron stop short of speaking to those frictional spaces, or to what is and isnn’t objectified?

Seron’s purposes in brining together what she considers to be a set of collectively recognized foundational texts seems to be twofold: 1) to provide a shared set of reference points for scholars working within Law and Society as a discipline; 2) to provide a mapping of the critical moves and intellectual underpinnings that identify the discipline’s character and history. Taken together, these purposes form what Seron calls a “‘sense of the canonical’” (citing Balkin and Levinson, 1996), a sense that contributes both to a self-understanding within the discipline and to a more externally focused sense of arrival and purpose. For example, writing about the move away from “theory qua theory” that she ascribed to mid-century Law and Society, Seron argues that such a move, as traced in the CANON, may “prove to be its [Law and Society’s] most important contribution to the social sciences more generally at the beginning of the twenty-first century.”

Taking seriously this so-called moved away from theory, what are the stakes of the canonization that Seron invokes in this volume? Jobs are at stake. Jobs, salaries, tenure, funding for Ph.D. programs, and the availability of resources to teach and write seriously about material oppression. As Richard Delgado pointed out in his ground-breaking studies “The Imperial Scholar,” “The Imperial Scholar Revisited,” and “The Colonial Scholar,” who gets cited in “canonical” books and articles overwhelmingly determines who gets hired, who gets paid, and which programs find resources. Writing first in 1984, and then in 1992 and 1996, Delgado showed in a quantatative study that in order to succeed in legal academic circles, you had to cite white. That is, Delgado showed that authors who were published in major legal journals, book collections, and especially law reviews would overwhelming and repeatedly cite a small group of white men, avoiding not only authors with non-dominant identities, but subjects that might be seen as too “ethnic,” and [*269] the like (Delgado 1984). Delgado argues that these citation practices not only shape resource distribution and working conditions, but they limit the intellectual ground that scholars of color, women, and LGBT scholars can successfully traverse (Delgado 1984; 1992; 1996). Over and over again, Delgado was told that he had to “play things straight” if he ever wanted to establish a career as a legal academic. Writing about race could come, but only after tenure (Delgado 1984; 1992; 1996).

It would be disingenuous of me to try to pin this state of affairs on Seron’s volume. Nonetheless, those of us who think of ourselves as being part of “Law and Society” have a responsibility to consider the material impact of our intellectual production. By canonizing a group of articles that steps over the contributions of raced and sexed legal scholarship, we enforce the very expectations outlined by Delgado and so many others. Just as perniciously, we reproduce a set of conditions in which academic resources flow most easily to those who speak from within dominance (Delgado 1993). As Delgado writes, “[i]n the call for standards, scholars in the academic mainstream urge the adoption of universal criteria under which outsider scholars will, in a sense, return to the fold – that is, agree to be judged not by their own lights but those of the mainstream academy” (Delgado 1993). A canon might not explicitly announce itself as a call to standards, but, as Katherine Franke (2003) has shown and argued, any act of canonization, whether intended to be or not, invokes the authority of the mainstream, the universal, the return to “real” scholarship after some folly in the valley of identity (also see Duggan 2003).

In asking these questions, I do not mean to suggest that we should not acknowledge the foundational impact of the texts that the CANON brings together. Rather, I am suggesting that we must take up the responsibility of that inheritance by bringing critque to bear on the implicit politics and explicit impact of the writings we receive as supposedly ours (Nader 1972).

For example, Seron writes that Law and Society began as an “American professional association” that “[t]oday . . . moves in a decidedly international direction.” What difference would it make if we were instead consider that Seron’s “American” or United States-based origin was always already a transnational one – that being “American” in character has always involved an unavoidable engagement with the transnational and international foundation of the United States as a series of treaties with sovereign native tribes, or as a military invasion of Mexico’s sovereign borders, or as a citizenry composed almost entirely of recent immigrants (Saldana 2005; Saldana 2004; Lowe 1996; Barsh 1980)?

Some writers, such as Eve Sedgwick (1991), have asked whether, instead of attacking a dominant center for its minoritization of outsiders, it might be effective to show that the dominant center is itself the minority, and that outsider experience and perspective is already and always more ascendant and more relevant than that center. Should I have used this review to show that Seron’s canon is, in fact, something of a queer one, to show that dominance has [*270] always already been subverted? Although such queering can be a necessary or creative tactic within anti-oppression scholarship, my gut sense is that at this moment, making the canon cool would be skirting the very material challenge raised by Delgado’s studies. I fear that by showing how and why the mostly white and mostly male canon enacts and contains its own critique, we create circumstances in which universities and resource-rich institutions do not actually have to distribute those resources to scholars who name themselves as radically and irrevocably raced, classed, sexed, gendered, or to scholars who speak from that naming and experience, or to scholars reproducing paradigms other than those of dominant power networks.

Carroll Seron has edited a necessary resource, one that assists us in acknowledging the intellectual history of what might now be called the discipline of Law and society. As a self-identified Law and Society scholar, I hope that in moving towards our futurity, we might produce a collective sense of shared texts that begins to enact the sort of social change we so often purport to study.

REFERENCES:
Barsh, Russel and Youngblood, James Henderson. 1980. THE ROAD: INDIAN TRIBES AND POLITICAL LIBERTY. Berkeley: University of California Press.

Delgado, Richard. 1996. “The Colonial Scholar: Do Outside Authors Replicate the Citation Practices of the Insiders, but in Reverse?” 71 CHICAGO-KENT LAW REVIEW 969-976.

Delgado, Richard. 1993. “The Inward Turn in Outsider Jurisprudence.” 34 WILLIAM & MARY LAW REVIEW 741-768.

Delgado, Richard. 1992. “The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later.” 140 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1349-1372.

Delgado, Richard. 1984. “The Imperial Scholar: Reflections on a Review of Civil Rights Literature.” 132 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 561-578.

Derrida, Jacques. 1994. SPECTERS OF MARX: THE STATE OF DEBT, THE WORK OF MOURNING, AND THE NEW INTERNATIONAL. New York: Routledge.

Duggan, Lisa. 2003. THE TWILIGHT OF EQUALITY: NEOLIBERALISM, CULTURAL POLITICS, AND THE ATTACK ON DEMOCRACY. Boston: Beacon Press.

Franke, Katherine. 2003. “On Discipline and Canon. (Why a Feminist Law Journal?)” 12 COLUMBIA JOURNAL OF GENDER & LAW 639-645.

Lowe, Lisa. 1996. IMMIGRANT ACTS: ON ASIAN AMERICAN CULTURAL POLITICS. Durham: Duke University Press. [*271]

Nader, Laura. 1972. “Up the Anthropologist: Perspectives Gained from Studying Up.” In D. Hymes (ed). REINVENTING ANTHROPOLOGY. New York: Random House.

Saldana, Josephina Maria Portillo. 2005. “In the Shadow of NAFTA: Y tu mamá también Revisits the National Allegory of Mexican Sovereignty.” 57 AMERICAN QUARTERLY 751-778.

Saldana, Josephina Maria Portillo. 2004. “Wavering on the Horizon of Social Being: The Treaty of Guadalupe-Hidalgo and Its Racial Character in Ámerico Paredes’s George Washington Gómez.” 89 RADICAL HISTORY REVIEW 135-161.

Sedgwick, Eve Kosofsky. 1991. EPISTEMOLOGY OF THE CLOSET. Los Angeles: University of California Press.

Thomas, Kendall. 1992. “Beyond the Privacy Principle.” 92 COLUMBIA LAW REVIEW 1431-1516.

Williams, Patricia J. 1991. THE ALCHEMY OF RACE AND RIGHTS: DIARY OF A LAW PROFESSOR. Cambridge: Harvard University Press.

---

© Copyright 2008 by the author, Elizabeth Loeb.

Continue Reading...

THE LAW-GROWTH NEXUS: THE RULE OF LAW AND ECONOMICS DEVELOPMENT

by Kenneth W. Dam. Washington: Brookings Institution Press, 2006. 320pp. Cloth. $36.95. ISBN: 9780815717201.

Reviewed by Joshua Hall, Assistant Professor in The Department of Economics & Management, Beloit College. Email: halljc [at] beloit.edu.

pp.263-266

Why are some countries rich and others poor? While economists have tried to answer this question since before Adam Smith’s (1776 [1998]) inquiry into the wealth of nations, it has only been since the late 1940s that economists have systematically focused on less developed countries such as those in Africa (Arndt 1997). The African “growth tragedy,” a period between 1965 and 1990 where average real per capita GDP in Africa was stagnant, has stimulated considerable research into the causes of economic development (Easterly and Levine 1997).

One prominent strain of this literature that began with the pioneering work of Douglass North (1990) has focused on the importance of institutions in explaining cross-country differences in economic growth (Rodrik, Subramanian and Trebbi 2007). The institutional approach to economic growth is based on the idea that the productivity of a country’s citizenry and resources depends in large part on the quality of that country’s social, political, and economic institutions. Competitive markets, freedom of exchange, and secure private property rights are all examples of institutions that contribute to economic growth (Gwartney, Holcombe and Lawson 2004).

Beginning in the mid-to-late 1990s, a team of economists began to take a closer look at the importance of legal institutions (La Porta, et al. 1998). The primary focus of their research was on whether there existed a relationship between a country’s legal rules and financial sector. La Porta, et al. (1998) found that countries whose legal systems are derived from the English common law have higher rates of economic growth than countries whose legal systems are based on civil law. While this finding has been subject to considerable criticism, this and subsequent research on the relationship between law and finance has led to the widespread belief that well-functioning legal institutions (i.e., the “rule of law”) are of utmost importance to economic development.

In THE LAW-GROWTH NEXUS: THE RULE OF LAW AND ECONOMIC DEVELOPMENT, Brookings Institution senior fellow Kenneth Dam provides an excellent contribution to this burgeoning literature. In the introduction, he clearly sets out his primary goals for the book. Dam’s first goal is to move the debate beyond the well-accepted perspective that legal institutions are important. The really interesting (and more difficult) question is how and why legal institutions are important for economic growth. A secondary goal is to provide some sort of guidance for policymakers who are aware of the importance of the [*264] rule of law but do not know how to act upon that knowledge.

This book is divided into 4 parts. The first part is titled “Perspectives on Law and Economic Development” and is comprised of four chapters. The first chapter is an in-depth discussion of the rule of law and its effect on economic development. Chapter 2 is an overview and analysis of the “law and finance” literature that started with the initial research of La Porta, et al. (1998) and is, in my opinion, the strongest chapter in the book. Dam does an excellent job of succinctly explaining the assumptions and methodology that led the law and finance literature to conclude that the common law is superior to the civil law in terms of being conducive to economic growth.

The highlight of the chapter occurs when he finishes summarizing the literature and begins to slowly poke holes into it. In his critique, Dam raises an important issue with respect to the methodology of the law and finance literature. He notes that in order to run their cross-country regressions, La Porta, et al. (1998) need to code all the countries in their sample as being of a distinct legal origin. For many countries this is not problematic, as their current legal system has distinct roots in either the English common law or the French civil law. Coding Brazil as being of French civil law origin is a bit more problematic when it is clear from the country’s legal history that its civil code drew not only from the French civil code but also the German, Italian, Portuguese, and Swiss civil codes.

As an economist familiar with the law and finance literature, I found Dam’s summary to be excellent and his criticisms both fair and informative. Not only does he have an excellent eye for what is lost with an excessive reliance on cross-country regressions, but he also has an appreciation for what is gained. For example, while he criticizes the law and finance literature for drawing policy conclusions from data on only 49 countries, he notes that “49 countries may be enough for an academic paper aimed at a general conclusion (and at the time a new perspective)” (p.53).

Chapter 3 is a short chapter where Dam discusses geography and culture, two alternative explanations for cross-country differences in growth. Chapter 4 concludes Part I with an analysis of how the developed world was able to obtain the rule of law. In the chapter Dam discusses the work of Weingast (1993), North (1990), and others on legal evolution in England to see if any lessons can be learned from their experience. Unfortunately, there are no easy lessons to be drawn from the English experience.

Part II is comprised of four chapters on a key component of the rule of law, namely the enforcement and protection of property [*265] rights. Chapter 5 focuses on the role that the judiciary plays in the enforcement of contracts. In the sixth chapter Dam turns his attention to the issue of contracts, clearly noting the difference in how contracts are treated between civil and common law countries, and addresses the relationship between contracts and property as well as discussing the general concept of property rights.

The second part of the book concludes in Chapter 7 with a discussion of enforcement, contracts, and property rights, all in the context of agricultural land in the developing world. Here Dam ties together the concepts covered in the three previous chapters. Land is important because it is a primary source of real wealth for most households and the productivity of agricultural land is very important to economic development for a country as a whole. Secure property rights contribute to economic development by giving farmers the incentive to invest in improving the land and to produce the goods that yield the highest return.

The historical experience of current developed countries is a witness to the importance of secure property rights. A recent paper by Hornbeck (2008), for example, shows how in the United States the invention of barbed wire lowered the cost to farmers of establishing property rights where timber for fencing was scarce. He finds that the secure property rights created by the introduction of barbed wire increased crop productivity by 23 percent from 1880 to 1890.

The security of property rights through the combination of cultural norms, technology, and the legal system is clearly important to the productivity of land and, consequently, economic development. Dam details how the legal insecurity of property rights in the developing world has large costs to the economy as resources spent on protecting and securing property cannot be employed in productive activities. In addition, he notes that, without a clear title to their property, farmers cannot obtain loans to invest in machinery that would increase agricultural productivity.

Dam also adroitly discusses the costs and benefits from land titling and the problem of communal property. He finds no clear a priori for communal property to always be less efficient than private property, but after examining the issue, he concludes that “formal legal recognition of individual rights to a plot in a larger tract of communal land may have some economic value” (p.156). Underlying the titling process, however, there needs to be a strong and competent judiciary, a point that is often overlooked by policymakers.

Part III looks specifically at the issue of legal institutions and a country’s financial sector. Chapter 8 focuses on the role of corporations historically and today, as well as how corporations and equity markets interact. Chapter 9 looks at legal institutions and credit markets, banks, and bankruptcy. These are very good chapters, but they cover so much ground it is hard to do them justice in a book review.

The fourth and final part of the book finishes with two chapters. Chapter 10 provides a review of the author’s conclusions drawn from the previous nine chapters of analysis. Dam highlights for policymakers the key factors to implementing an institutional approach to economic development focused on legal institutions. For example, he suggests that international aid organizations should devote resources to improving the quality and independence of the judiciary in less developed countries as part of their legal reform efforts.

Chapter 11 concludes the book with a case study of China. By some measures, China is the fastest growing country in the world. Yet it is not at all clear that China is characterized by the rule of law. [*266] What implications does this have for the legal institutions and growth perspective? After a detailed analysis of China’s growth record, judiciary, and economic and legal structure, Dam concludes that, while it is correct to say that China is currently not characterized by the rule of law, this should not be taken as evidence that the rule of law does not matter for economic growth. China is still a very poor country, and its legal institutions reflect that stage of development.

In summary, I found THE LAW-GROWTH NEXUS to be an excellent book. There are useful and practical insights into the issue of reforming legal institutions in the developing world in every chapter. Teachers of development economics already assigning La Porta, et al (1998) should really consider adding Chapter 2 to their reading list. Not only would it introduce students to some important criticism of the legal origins literature, but it would also show students how serious scholars can be both respectful and critical at the same time.

REFERENCES:
Arndt, H. W. 1997. ECONOMIC DEVELOPMENT: THE HISTORY OF AN IDEA. Chicago, IL: The University of Chicago Press.

Easterly, William, and Ross Levine. 1997. “Africa’s Growth Tragedy: Policies and Ethnic Divisions.” 112 QUARTERLY JOURNAL OF ECONOMICS 1203-1250.

Gwartney, James, Randall Holcombe, and Robert Lawson. 2004. “Economic Freedom, Institutional Quality, and Cross- Country Differences in Income and Growth.” 24 CATO JOURNAL 205-233.

Hornbeck, Richard. 2008. “Good Fences Make Good Neighbors: Evidence on the Effect of Property Rights.” Cambridge, MA: Massachusetts Institute of Technology Working Paper.

La Porta, Rafael, Florencio López-de-Silanes, Andrei Shleifer, and Robert Vishny. 1998. “Law and Finance.” 106 JOURNAL OF POLITICAL ECONOMY 1113-1155.

North, Douglass C. 1990. INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE. New York, NY: Cambridge University Press.

Rodrik, Dani, Arvind Subramanian and Francesco Trebbi. 2004. “Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development.” 9 JOURNAL OF ECONOMIC GROWTH 131-165.

Smith, Adam. [1776] 1998. AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS. Washington, DC: Regnery.

Weingast, Barry R. 1993. “Constitutions as Governance Structures: The Political Foundations of Secure Markets.” 149 JOURNAL OF INSTITUTIONAL AND THEORETICAL ECONOMICS 286-311.

---

© Copyright 2008 by the author, Joshua Hall.

Continue Reading...

DOMESTIC REFORMS: POLITICAL VISIONS AND FAMILY REGULATION IN BRITISH COLUMBIA, 1862-1940

by Chris Clarkson. Vancouver: University of British Columbia Press, 2007. 304pp. Hardcover. $85.00. ISBN: 9780774813501. Paper. $32.95. ISBN: 9780774813518.

Reviewed by Zvi H. Triger, The College of Management, School of Law, Rishon LeZion, Israel. Email: zvit [at] colman.ac.il.

pp.260-262

Chris Clarkson’s new book, DOMESTIC REFORMS, is an important addition, not only to British Columbian family law scholarship, but also to the scholarship on the politics of family law and gender relations in general.

Clarkson offers a fascinating and eye-opening account of lobbying, legislative processes and intent, and, sometimes, the unintended consequences of some of the legal reforms passed between 1862 and 1940 in British Columbia.

Clarkson, a History professor at Okanagan College, British Columbia, argues that the three waves of legislation concerning property, inheritance and maintenance laws, starting in 1860, were driven by the ambition to transform British Columbia from a British colony into a white settler Canadian province. In his argument, he persuasively connects the legal system’s vision of the family to the endeavor to create, and indeed, engineer, a nation.

Seeing the family as an important political unit positioned at the crossroad of the nation and the state, advocates of the reforms depicted and analyzed in the book believed that the family is an important, perhaps even central, tool that should be utilized in the nation-building project.

In this sense, British Columbia’s story is similar to the story of many other former British colonies, such as India and Israel. British common law, which viewed the family as patriarchal unit and deprived married women of their basic human rights, was used as the basis for family law in these countries at the time of independence as well. That means that women’s lack of agency under the law, as prescribed by the coverture doctrine, was one of the main features of family law that the legislatures of newly founded countries had to tackle and were somewhat reluctant to give up.

Sir William Blackstone’s Commentaries on the Laws of England (first published in 1765) were often the only law books that the settlers and occupiers who traveled to the colonies (in the west as well as in the east) took with them. This is what Blackstone writes about women’s legal status within the family under the common law:

By Marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; . . . and her condition during her marriage is called her coverture. (Blackstone 1803, vol. 2, p.442) [*261]

Under this doctrine, women were legally incapable of performing legal actions such as signing contracts or bringing legal actions against others. The coverture doctrine also entailed women’s loss of name (usually both first and last), as well as men’s right to physically punish their wives, as long as the lash used to beat them was not thicker than a thumb (this is the source of the expression “rule of thumb”).

Against this patriarchal backdrop, the reformers of the first wave of legislation in British Columbia were working. But here is an intriguing paradox: as Clarkson justly points out, any attempt to try to make family law more egalitarian by means of challenging the traditional gendered division of labor, had to involve men’s loss of some privileges within the family unit. Nevertheless, some of these attempts were surprisingly successful. How can one explain men’s approval and support of legal reforms that hindered their almost total (not to say totalitarian) supremacy within the private sphere?

Clarkson argues that egalitarian (or relatively egalitarian, to be more precise) reforms were possible and were deemed acceptable by many men due to a complex set of interests and considerations, despite their adverse effect on male supremacy within the family. One of the key interests was, as mentioned above, the nation-building project. Race, as Clarkson observes, played a crucial role here: “Legislators worked to seize political, legal, and economic control from Aboriginal societies in order to provide a settlement frontier from which white settlers – and distant European capitalists – could extract natural resources and profits” (p.7).

Indeed, it seems that some of the more egalitarian family law reforms were not so much a product of feminist convictions as they were the outcome of racial and colonial sentiments. The gendered perception of the “foreign man” (meaning of the native man) and his cultural construction as emasculated and, at the same time, as hyper-sexual, well-known from other cultures, is present in Clarkson’s story as well: As Clarkson argues, “[l]egislators had few qualms about regulating men differentially by race. Preventing Native and Chinese men from enjoying the full benefits of masculinity was directly related to the vision of the nation” (p.207).

Accordingly, as Clarkson points out, some reforms were not feminist at all, and they merely substituted private patriarchy with state sanctioned patriarchy: Under some laws women were granted property rights, but these rights were conditioned upon certain sexual behaviour. Adulterous wives, for example, were denied property rights under the Deserted Wives’ Act.

In fact, as Clarkson notes, “[w]omen were defined by the role they played in relation to their husbands or families, and legislation dealt with them on that level: as widows, spinsters, married women, deserted wives, country wives, and concubines. The numerous categorizations existed to reserve power to men. Women’s rights depended upon exactly how they were related to men and, hence, how those rights would affect men” (p.209). [*262]

Other pieces of legislation were designed to promote reproduction, sometimes at the expense of women’s liberties. Indeed, it seems that reproductive policy informed much of the reform:

The new femininity created in the legislation was defined in relation to reproductive policy: each extension of women’s property rights was intended to safeguard and facilitate reproduction. In every statute in which women’s property rights were extended . . . the extension was granted in relation to specific reproductive needs and justified in those terms. (p.208)

It seems, then, that in the wake of some of the reforms described in the book, the femmes couverts found themselved no longer under the cover of their husbands, but rather under the cover of the state.

As Susan Moller Okin argued in her groundbreaking book, JUSTICE, GENDER, AND THE FAMILY, the family is our first and therefore most important school of justice. It is in the family were children first observe adult human interaction, and are exposed to justice and reciprocity (or to their absence from family life). Therefore, as Peggy Cooper Davis wrote, “[t]he family sits strategically between government and individual. It is thought to have a duty and a special ability to socialize and govern the youth. It is also thought to be a uniquely good site for the development and perpetuation of values” (Davis 1997, at p.10).

This can explain why family law is perhaps one of the most important fields of law when trying to understand the basic tenets of a legal system, and why reforms that are motivated by a national interest rather than by a concern for human rights in general, and gender equality in particular, cannot achieve true equality.

In this short review, I did not go into the details of each and every piece of legislation analyzed in DOMESTIC REFORMS. Naturally, there are important differences and many nuances that cannot be represented and fully discussed here, giving the limited scope of such a review.

Clarkson has written a wonderfully complex and rich account of women’s status in British Columbian family law and society. Clarkson’s account powerfully demonstrates why reforms that seemed to be egalitarian turned out to be a double-edged sword. That is because they were in fact motivated by nationalist considerations and not by “recognition of universal human or civil rights.”

REFERENCES:
Blackstone, William. 1803. COMMENTARIES ON THE LAWS OF ENGLAND. St. George Tucker, ed., Philadelphia: William Young Birch & Abraham Small.

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

Davis, Peggy Cooper., 1997. NEGLECTED STORIES: THE CONSTITUTION AND FAMILY VALUES. New York: Hill and Wang.

---

© Copyright 2008 by the author, Zvi H. Triger.

Continue Reading...

CONSTITUTIONAL INTERPRETATION: THE BASIC QUESTIONS

by Sotirios A. Barber and James E. Fleming. New York: Oxford University Press, 2007. 208pp. Cloth. $75.00/ £46.00. ISBN: 9780195328578. Paper. $25.00/ £14.99. ISBN: 9780195328585.

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu.

pp.255-259

Books reviewed here are scholarly in focus. Some of those books are also controversial in that they challenge accepted perspectives of particular areas of research and theory. Still others are pedagogically useful, surveying fields of inquiry and putting them into perspective in ways that facilitate learning for students and scholars alike. It is unusual, however, to find a book that is scholarly and controversial and pedagogically useful at once. Sotirios Baber and James Fleming’s CONSTITUTIONAL INTERPRETATION: THE BASIC QUESTIONS is one of these rare productions. Barber and Fleming provide us with a scholarly overview of the entire field of constitutional theory. That alone would be worth praising, especially since they do it at a reasonable length and in an understandable writing style. They also weave a sophisticated critique of common approaches to constitutional interpretation into their survey. The result is an illuminating way into considerations concerning our basic law that is accessible and interesting to both specialists and students.

No one who does research and teaching in law and courts can ignore theoretical speculations concerning how to interpret the constitution. To see why, consider the problem of collective public action in a democracy like ours. As Dewey pointed out long ago, publics are not inevitable, ever present features of democracies. Modernizing his vocabulary along lines suggested by Shalizi (2007), Dewey held that all publics are potential, a potential realized when the externalities of social life create market failures widespread enough and persistent enough to lead to movements calling for their regulation. If externalities are not recognized or conclusions about how to deal with them reached, publics cannot form and the problem of collective action remains intractable. Normally, struggles in the arenas that create or frustrate such recognition are American politics.

But there is one institution that can transcend these difficulties: courts armed with the power of judicial review. Courts can use their power to interpret the law and, more fundamentally, the Constitution without the formation of publics to support their rulings and despite publics opposing them. It is this potential for court rulings to disrupt the processes that create publics that causes the greatest distress to students of constitutional interpretation. American courts, particularly the Supreme Court, can accelerate or derail new perceptions of collective action. Courts can help create publics through judicial vindication of grievances long [*256] suppressed by the barriers built into our representative institutions. They also, more commonly, defang popular movements by rulings that overturn policies established after hard fought political campaigns.

The solution for this conundrum is to control the extent and nature of judicial decisions. But that is easier said then done. A long history of support for judicial independence and a tradition of decrying political motivations in the judiciary – however contradictory to other American political commitments – precludes direct interference with their decisions. The answer has been a continuing dialogue aimed at establishing a workable theory of constitutional interpretation that can be adopted by judges and constrain them. The ideological ammunition created by the effort affects the education and socialization of lawyers and judges, the selection process for the judiciary, and the country’s electoral politics. Understanding how to make sense of the constitution, then, is not simply a living room exercise for law professors. It is a vital part of the process of forming publics I described above.

Barber and Fleming give us a complete, interesting, and readable critique of that dialogue. Their examination comes in two parts. They begin by asking what kind of constitution we have. Until there is a prior decision on this point, the entire business of how to interpret it is left without an anchor. Their view, backed by a plausible interpretation of the FEDERALIST, is that the Constitution is a tool for achieving a variety of ends best described as protecting the nation’s capacity to develop as a tolerant and entrepreneurial republic that fosters and respects equality of opportunity and individual liberty. As Barber and Fleming see it, the Constitution is positive instrument aimed at providing a government that has the responsibility and energy to accomplish these goals. As we shall see, this view of the Constitution buttresses their critique of methods of interpreting it.

The second half of the book is concerned with analyzing theories of constitutional interpretation. Barber and Fleming’s views are based on an underlying critical assessment that most theories of constitutional interpretation have leapt too quickly to substantive controversies. They hold, with Dworkin, that theories of constitutional interpretation that attempt to avoid making and justifying value judgments are flawed. Such theories abound since it has long been a canon of constitutional interpretation that judges should not let their own value assessments interfere with their application of constitutional requirements. Basing a theory of the Constitution on a prior value judgment would undermine this constraint. Much of the rest of CONSTITUTIONAL INTERPRETATION is a full throated assault on this notion.

Barber and Fleming provide critiques of all commonly used theories of constitutional theory: textual analysis, consensualism, various forms of originalism, appeals to structural constraints, doctrinalism and minimalism, and pragmatism. Trying to summarize their views on all these ideas would take a much longer review than this. Instead, I will try to give interested readers a summary of the critique I [*257] found most useful: their analysis of originalism.

Originalism is probably the most widely adopted theory of constitutional interpretation used today and, as a consequence, the most complex. All, however, are characterized by what Fleming has called the “originalist premise;” i.e. an axiomatic assumption that constitutional interpretation has to be based, in some fashion, on the intentions or understandings of the framers of the original document and of its amendments. The most commonly recognized form is what Barber and Fleming call “narrow” originalism. In this version, those trying to determine what the Constitution meant and what it requires would look at either the intentions of the framers at the time the Constitution or its amendments were written, at the meaning that its words had then, or at how the provisions in question were applied at adoption as an invariant guide to what the document is about. Proponents claim that doing otherwise would leave the field open to interpretations that might be diametrically opposed to what the Constitution means and, thus, open the way for judges to undermine the formation of publics and democracy itself.

As Barber and Fleming point out, there are some well known practical difficulties with this position, particularly its intentional variant. No one has suggested a way to reduce the myriad intentions of the framers (provided, that is, one could define who they were in the first place) to a single interpretation. Turning to the “original” meaning of the text or to applications is similarly problematic. But suppose one could find a way to support the idea that democracy requires judges to use intentional standards. The problem then shifts to a more general question based on Dworkin’s distinction of concepts and conceptions. Of course, most “narrow” originalist theories depend on an interpretation of the actual personal conceptions that the framers had when the document was written; i.e. what did the framers of the 14th amendment think “due process” meant in 1867, to whom did they intend it to apply, and how, in fact, was it applied? But, given the problems with such an analysis, what if one were to consider original meanings or intentions as concepts – as general, abstract representations of desirable norms? Barber and Fleming call this variant “abstract” originalism and claim it creates an unavoidable need for a “philosophical approach.” When considering, say, “due process” in the abstract, conscientious judges should consider what the term means as a normative concept; i.e. as a moral value intended by the framers of the 14th to be maximized to meet the instrumental ends of the amendment. This requires that judges should undertake a careful reflection on how “due process” can best be applied in general within the framework of constitutional law and consistent with looking at the Constitution as an instrument to achieve “due process” as a goal. Such a reflection would be best informed by the methods of moral philosophy. In short, the marriage of constitutional law and moral philosophy for which Dworkin has long called is an indispensable tool for any abstract originalist analysis. Indeed, Barber and Fleming see no difference worth discussing between abstract originalism in its various forms [*258] and a philosophical approach to constitutional interpretation.

But what of the “new” originalism? Barber and Fleming refer to these theories as “broad” originalism, i.e. an originalism that seeks to avoid the problems associated with narrow versions while not succumbing to any admixture with philosophical analysis. Their argument here is more complicated, as is their subject. Broad originalists try to split the difference between narrow and abstract originalism by postulating that, although the Constitution does embody abstract principles, it does so at different levels of abstraction. Thus judges might be constrained more by applying an intermediate level of abstraction; i.e. not that the 14th amendment applies only to African-Americans (narrow originalism) or to all persons (abstract originalism) but instead to those persons to whom it can be shown to apply historically. That way there are still constraints on judicial decisions, but the process of constitutional change over time can be accommodated. But if we are after restraints on judges, what, Barber and Fleming ask, justifies going beyond the narrow position? And, further, why stop short of abstract originalism? To them, the answer appears to be a pair of unexamined assumptions: that majoritarian democracy will be undermined if judges are not restrained and that the main character of the Constitution is that it binds all Americans to a regulatory scheme the judges oversee. Barber and Fleming argue that both assumptions are incorrect. They see the Constitution as an instrumental document that commands its agents to act so as to, again, maximize the goals set forth by the document. That, in turn, requires those agents to consider how best to do so, a process that can only involve a consideration of moral values and arguments about them informed by philosophical debate. There is no “broad” originalism, in other words; one either sticks with the narrow version or moves on to an abstract originalism that is indistinguishable from the philosophical approach.

I said at the start of this review that one seldom runs across a book that is scholarly, controversial, and pedagogically useful. I hope that interested readers can see from the summary above what I meant. Barber and Fleming’s treatment of originalism is scholarly. They have thought deeply about prominent authors in the approach and present a useful way of classifying a complex area of constitutional theory. It is controversial. The epigones of the “new” originalism in particular are criticized in ways virtually assuring responses that will further debate. Finally, it is pedagogically useful. Their entire presentation on the subject is written in readable prose and without undue length. Further, their challenge to the various kinds of originalism is almost certain to provoke controversy among interested students. When one remembers that their book covers virtually the entire waterfront of constitutional theory in a similar fashion, it should be obvious why I am enthusiastic about the reception this book will have among scholars both for its intellectual [*259] interest and its academic usefulness.

For all that, I do have some unfulfilled curiosities about Barber and Fleming’s own ideas concerning constitutional interpretation. They have put aside their own ways of using the philosophical approach to interpret the Constitution to advance the method instead. Well and good: CONSTITUTIONAL INTERPRETATION is a work of criticism, not an exposition of personal views. Still, it would have been enlightening to see more of their own positions. There is a great deal of talk about the philosophical approach in the book but precious little in the way of actual examples of it. The contrast between a Rawlsian (Fleming) and a moral realist (Barber) could have added that dimension.

But perhaps I should come to a bottom line. I think this book will be a source of continuing scholarly debate for some time. The criticisms made by Barber and Fleming are both well founded and ably argued; I cannot imagine that there will not be both heat and light generated as a consequence. Scholars interested in constitutional theory will find it a provocative and interesting read. However, I predict that the greatest use for CONSTITUTIONAL INTERPRETATION will be in the classroom. Finding a strongly argued, stylishly written critique of an entire body of complex literature that is of a reasonable length is rare indeed. Courses at the advanced undergraduate and graduate level and in legal education concerned with theories of constitutional interpretation will find this book a godsend. For both these contributions, Barber and Fleming deserve special thanks.

REFERENCE:
Shalizi, Cosma. 2007. “Review of John Dewey, The Public and Its Problems.” www.cscs.umich.edu/~crshalizi/weblog/algae-2007-10.html (Accessed March 10, 2008).

---

© Copyright 2008 by the author, Tracy Lightcap.

Continue Reading...