SUNBELT JUSTICE: ARIZONA AND THE TRANSFORMATION OF AMERICAN PUNISHMENT

by Mona Lynch. Stanford, California: Stanford University Press. 2010. 280pp. Cloth $70.00. ISBN: 9780804762847. Paper $24.95. ISBN: 9780804762854.

Reviewed by Doris Marie Provine, Arizona State University. Email: marie.provine [at] asu.edu.

pp.892-895

Many people recognize that the Sunbelt’s approach to urban development is unsustainable. Urban sprawl, profligate use of water, and devotion to a car culture are obviously not viable over the long term in fragile desert environments. Less well known is the region’s unsustainable approach to sentencing and punishment. The Southwest stands out for its devotion to large no-frills prisons and its penchant for harsh penalties, including mandatory minimum sentencing, regardless of the cost to the general fund. Mona Lynch’s new book helps us understand what happened to make the Southwest, and particularly Arizona, a national leader in warehousing large numbers of prisoners rather than attempting rehabilitation or exploring less expensive alternatives. She offers a historical narrative of this best-case/worst-case state that is informed by contemporary theorizing about the global movement toward harsher punishment. In focusing on a single place, she challenges some of the assumptions underlying previous descriptions of the movement toward mass incarceration.

The micro-focus on a single state’s policy evolution allows Lynch to address the role powerful individuals have played in the process. Dr. Lynch enjoyed excellent access to state corrections archives and to public figures, and this helps bring her story to life. SUNBELT JUSTICE is full of colorful characters who do not hesitate to express their devotion to discipline and to express their resentment of outsiders who meddle in their institutions. Lynch describes a state legislature that has always sought to save as much money as possible on prison administration and prison construction. It is an Arizona tradition, for example, for prisoners to build their own prisons.

Yet there has always been a counter-argument in favor of expertise in corrections and for modernizing state government. The state did finally establish a Department of Corrections in 1968, placing the new agency under the leadership of a professionally trained, nationally respected prisons administrator. The state’s interest in rehabilitation of its criminals, however, has been episodic. Rehabilitative ideals never really displaced the earlier idea that strict discipline and unpleasant prison conditions most effectively deter crime. Arizona leaders implicitly understood the principle of “less eligibility,” which intends prison life to be less attractive than life outside prison. For a long time, however, devotion to cost savings softened the impact of this approach to imprisonment. As the state grew, the legislature and prison administrators kept prison populations [*893] down with early release and probation. The prison population hovered at around 2500 until the 1970s.

This cost-conscious approach to prison populations was abandoned in 1978 when the legislature rewrote its sentencing laws to impose harsh mandatory minimum penalties and tough determinate sentencing boundaries for common crimes. It made these changes with full knowledge that the impact would be a surge in imprisonment. New prison construction became a necessity as courts intervened to protect prisoners from extreme over-crowding and other abuses. There was no turning back as the warehousing approach became institutionalized. In 1983, for example, the system was overwhelmed with prisoners, but the legislature made its criminal code even tougher that year.

Arizona now has 40,000 adults in ten prison complexes, six of which are privately owned. Some prisoners have had to be housed out of state at considerable expense. Since 1986, Arizona has been among the top ten incarcerating states. In 2008 Arizona had the 6th highest rate of incarceration among states, and was 4th highest in state spending on its prisons, using 10 – 11 percent of its general fund for this purpose.

Pro-punishment forces have had to contend with lawsuits from prisoners and their supporters over the years, but they have fought back with gusto. The U.S. Supreme Court lent a hand in 1996 with its decision in LEWIS v. CASEY, which set a new, tougher “actual injury” standard for prisoner appeals. Arizona’s Senator Kyl obligingly sponsored the Prisoner Litigation Reform Act (PLRA), a law that has severely narrowed the rights of inmates to seek help from federal courts. The state successfully removed law libraries from all of the state’s prisons in the 1990s. The Commissioner of Prisons, Terry Stewart declared that he would replace these libraries with “plain English and stubby little pencils” to handwrite complaints in non-legal terms, and that is what he did (p.197). The state has also opted for massive complexes built in isolated areas. These rural prison warehouses make it difficult to offer educational or psychological programs for prisoners, to facilitate family visits, and to offer programs that assist in reintegrating prisoners into civil society. They also take prisons out of the public eye and reduce scrutiny of their operations.

SUNBELT JUSTICE suggests the need to revise or amend frequently heard arguments for why imprisonment has boomed in recent decades. The broad-brush theory that posits abandonment of rehabilitative ideals in favor of mass incarceration (see e.g. Garland 2001), needs to be amended to take account of significant regional variation. Some places never fully embraced the rehabilitative ideal. SUNBELT JUSTICE effectively shows that Arizona and the other new states of the American Southwest were always more dubious about rehabilitative approaches to imprisonment than the Northeast and Midwest. This point would have been even clearer if Lynch had made this a comparative study, rather than focusing on a single state.

This book also demonstrates the significance of local actors and local traditions in the emergence of mass incarceration in Arizona, implicitly [*894] challenging arguments for change based on global economic insecurity and associated dislocations. Arizona began to increase dramatically its prison populations in the 1980s, for reasons that echoed long-standing state traditions that valorize harsh discipline and toughness. Nostalgia for the old Arizona, rather than growing economic insecurity, may help to explain the changes in the state, which was rapidly growing at the time. Finally, this book problematizes racial-threat hypotheses to explain growth in imprisonment. Blacks and Latinos have always been significantly over-represented in Arizona’s prisons, from the earliest days before statehood. While it is true that there has been a trend toward more Latino imprisonment, this did not occur until the state’s imprisonment boom was well underway.

Despite Lynch’s in-depth analysis of the state’s move toward mass imprisonment, the reasons for that change remain obscure. It is clear that the shift in policy was not the product of populist pressure. Concerns about this issue are episodic, usually manufactured by various moral entrepreneurs, including sometimes the governor. The important players have been prison commissioners attempting to achieve their varying visions of appropriate prison policy, political leaders who sometimes accept, and sometimes reject these views, and the federal courts, which have occasionally intervened in the policy process, at times siding with prisoners citing abuses, and at times vindicating the state’s no-frills approach.

The current economic crisis highlights the trade-offs that Arizona is making: Can harsh, costly punishment policies be maintained in a period when child welfare programs and education are being cut, when parks are closing and bus routes are abandoned? Interestingly, changing punishment policy to cut costs has not yet become a topic of public discussion, even as the state legislature borrows on the commercial market to keep the state afloat. Will cost considerations eventually force the state’s leadership to abandon its imprisonment policies? Lynch believes that in Arizona’s relatively unbureaucratic structure there is hope for positive change. Some changes would be relatively easy to effectuate. Many people are in the county jail, for example, because they are unable to pay high fines and surcharges that the legislature has imposed for offenses like drunk driving. The fact that probation violations are a big source of re-incarceration offers the possibility of rewarding programs that reduce probation violations. Counties could be made responsible for over-reliance on prisons, which are a state expense. Mandatory minimums could be reduced, allowing judges more discretion in individual cases.

The historical approach this book takes, however, tends to temper optimism about the potential for a change of heart about the value of no-frill imprisonment. The full-length story reveals consistent opposition to “outside interference” (except when Arizona is a clear beneficiary, e.g. in costly federal works that brought water to the desert). Prisoners have always been devalued and often de-humanized, and courts have been inconsistent in supporting their concerns. Punishment has always been popular in this state, and prisoners have not had any powerful political allies. As the state considers privatizing its [*895] remaining prisons, the constituencies for more of the same will grow stronger. The best hope for reform is that the state’s dire financial condition, coupled with determined political leadership, will create conditions for a return to the approach that once prevailed: controls on imprisonment dictated by consciousness of the (fiscal) costs of warehousing human beings.

REFERENCES:
Garland, David. 2001. THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY. Chicago: University of Chicago Press.

CASE REFERENCES:
LEWIS v. CASEY 518 U.S. 343 (1996).

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© Copyright 2009 by the author, Doris Marie Provine.

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CRIME, WAR, AND GLOBAL TRAFFICKING: DESIGNING INTERNATIONAL COOPERATION

by Christine Jojarth. New York and Cambridge: Cambridge University Press, 2009. 325pp. Hardback. $90.00/£50.00. ISBN: 9780521886116. Paperback. $34.99/£18.99. ISBN: 9780521713764. eBook format. $28.00. ISBN: 9780511513107.

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

pp.888-891

Illicit drugs, small arms, blood diamonds, and money laundering: four policy concerns no one state concerned with transnational security can ignore. Between 1988 and 2003, the international community implemented four anti-trafficking initiatives to excise these staples from the illicit global market (Friman and Andreas 1999, at 1). The purpose of Christine Jojarth’s recent book, CRIME, WAR, AND GLOBAL TRAFFICKING: DESIGNING INTERNATIONAL COOPERATION is to explain variance in the institutional design of these countermeasures. In so doing, Jojarth shows international lawmakers face difficult tradeoffs when legislating responses that balance credibility with flexibility. The purpose of this review is to describe the nature of Jojarth’s effort.

Using a case study approach, Jojarth examines how policy architects designed the legal and institutional frameworks of: (1) the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Hereinafter UN Convention Against Illicit Traffic); (2) the 2003 Financial Action Task Force and its Forty Recommendations; (3) the Kimberly Process Certification Scheme of 2002; and, (4) the 2001 United Nations Program of Action on Small Arms and Light Weapons (Hereinafter UN Program of Action). Chapters 2 and 3 present a novel, theoretically inspired bifurcated model that allows Jojarth to assess what an optimal anti-trafficking institutional design should be. A favourable design is one that responds to an underlying problem constellation conceptualized in terms of variables – asset specificity, behavioural uncertainty and environmental uncertainty – drawn from transaction cost economics theory. A predicted design is then compared and assessed against the actual anti-trafficking governance structure from a vantage point incorporating Abbot et al’s (2000), legalization thesis variables of obligation, precision and delegation. Much of the revelatory analysis in the work involves situating each of the four anti-trafficking institutional designs within a soft-hard law continuum and exploring whether policymakers optimally designed them.

The discussion regarding the UN Convention Against Illicit Traffic (Chapter 4) and the UN Program of Action (Chapter 7) illuminates just how diverging political consensus results in two interrelated crimes receiving starkly different institutional designs. When lawmakers were drafting the UN Convention Against Illicit Traffic they were effectuating a long-standing, nearly [*889] universal international policy condemning transborder drug smuggling. However, when states profit from the drug trade they may be motivated to dodge their legal obligations, despite any rhetoric to the contrary. This “prisoner’s dilemma” meant that drafters would have to account for an underlying problem constellation marked by a high degree of asset specificity and behavioural uncertainty that, unless addressed, would invite certain states to skirt their obligations with impunity (p.119). As Jojarth shows, the UN Convention Against Illicit Traffic’s legal bindingness on signatories, strong compliance mechanisms, and precisely drafted provisions represent a hard law design exhibiting high levels of obligation and precision. Since smuggling drugs and arms is equally deleterious, one could predict that similar form would also follow function.

Yet, unlike the three other anti-trafficking regimes, the UN Program of Action defied design prediction. A review of its pith and substance suggests a soft law arrangement with governance structures that fail to create a sufficient degree of obligation, precision, and delegation to ensure compliance of net payers. Jojarth’s explanation for the discrepancy illustrates that when indirect economic costs and political considerations weigh too heavily for superpowers indirectly implicated in a suspect export trade, a sub-optimal institutional design follows. In this instance, these governments are seen as rational, structured actors who will choose national interests over the international common good. However, to fully appreciate entrenched protectionism influencing institutional design required an extended back and forth review and syncretisation of the discussion contained within the institutional design predictions portion of the chapter and that of the section on actual institutional design.

In suggesting a readership for CRIME, WAR, AND GLOBAL TRAFFICKING: DESIGNING INTERNATIONAL COOPERATION, my own experiences with this study are instructive. Jojarth’s work was recommended for review and discussion amongst colleagues in an Osgoode Hall Law School graduate level seminar on law on Regulation and Governance. This book is a natural selection for a course concerned with the relationship between state and non-state institutions in policy making. First, Jojarth’s current work traces its genesis to the author’s doctoral studies at the London School of Economics. Graduate students can read the book with a view to analyzing the components of an insightful and well-researched extended study (Kamler and Thompson 2006). Second, Jojarth’s contextualization of the mischief each of the four anti-trafficking regimes addresses provides rich insight into which agendas instigate the international law-making process. Third, readers are exposed to the mechanics of statutorily interpreting international law treaties and binding agreements. Fourth, no discussion of regulation in an era of globalization seems complete without considering the changing role of the state in international law making (see, e.g., Kahler 2004). The study’s discussion on the direct and significant influence of industry and NGO representatives in the policy design mix of the Kimberly Process Certification Scheme challenges conventional wisdom that NGOs’ [*890] limited legal personality limits their input in the creation and application of international law (Kindred, et al. 2000, at 48.). Hence, this is a book that graduate students in law, political science, public administration, international relations, and globalization studies would find insightful. Apart from an instructional device, teachers comprising classic international law and diplomacy camps would find this work a stimulating examination of traditional international law making process and cooperation being reconfigured at the structural level.

Readers of all stripes should appreciate that creating a two-stage design paradigm full of numerous variables and their subcomponents, and then testing it, generates a protracted analysis. This is why in-chapter summaries on predicted institutional and actual institutional designs are helpful. They do not, however, in and of themselves lessen an extended reading endeavour that at times becomes overly academic.

CRIME, WAR, AND GLOBAL TRAFFICKING: DESIGNING INTERNATIONAL COOPERATION represents an important contribution to the fledgling literature on institutional design theory. It should inspire additional research analyzing how and why destabilizing global menaces influence international policy makers to design the counter-regimes they do. Any related future research will have to explore whether the study’s problem-oriented design model is limited to interrelated policy issues bounded within the crime-war continuum or applicable to novel areas. Case study results generally develop concepts used for further study (Cavaye 1996, at 229).

REFERENCES:
Abott, Kenneth W., Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal. 2000. “The Concept of Legalization.” 54 INTERNATIONAL ORGANIZATION 401-419.

Cavaye, A.L.M. 1996. “Case Study Research: A Multi-Faceted Research Approach for IS.” 6 INFOORMATION SYSTEMS JOURNAL 227-242.

Friman, H. Richard, and Peter Andreas. 1999. “Introduction: International Relations and the Illicit Global Economy,” in H. Richard Friman and Peter Andreas (eds). THE ILLICIT GLOBAL ECONOMY AND STATE POWER. Lanham, MA: Rowman & Littlefield Publishers, Inc.

Kahler, Miles. 2004. “Global Governance Redefined.” The Conference on Globalization, the State and Society, Washington University School of Law, 13-14 November 2004. Online:
http://law.wustl.edu/Centeris/Papers/globalization/KAHLERMilesFINALPAPER.pdf (date accessed: 19 November 2009).

Kamler, Barbara, and Pat Thompson. 2006. “Doctoral Writing: Pedagogies for Work with Literatures.” AERA Annual Meeting, San Francisco, CA, April 2006. Online: http://www.deakin.edu.au/current-students/assets/resources/study-support/study-skills/research/kamler.pdf (date accessed: 17 November 2009). [*891]

Kindred, Hugh M., Phillip M. Saunders, et al. 2000. INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND APPLIED IN CANADA (6th ed). Toronto: Emond Montgomery Publications.


© Copyright 2009 by the author, Andrew Kowalsky.

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EMOTIONS, VALUES, AND THE LAW

by John Deigh. Oxford: Oxford University Press. 2008. 264pp. Cloth $65.00/£40.00. Cloth. ISBN: 9780195169324.

Reviewed by Kang Chen, Daw & Ray, LLP. Email: kchen28 [at] yahoo.com.

pp.883-887

EMOTIONS, VALUES, AND THE LAW consists of ten essays, eight previously published, by John Deigh, Professor of Philosophy and Law at the University of Texas at Austin. Whenever any person holds such a joint appointment, it is reasonable to ask whether one discipline is primary for that person. In the case of Professor Deigh, there can be no doubt: he is a professional philosopher who has an interest in law rather than a lawyer with an interest in philosophy; fittingly, the very first word in his book is “Philosophy” (p.vii). However, this book is not intended to be a contribution to the discipline of philosophy broadly, but rather, as Deigh himself states, to the analytic tradition in Anglo-American moral philosophy specifically. The book seeks in the first instance to answer questions that have arisen within the analytic tradition about “the nature of emotions and their place in the thinking and practices that morality encompasses” (pp.vii-viii).

The primary audience for this book, then, is readers familiar with recent debates in analytic philosophy concerning the nature of emotions and their role in morality. Since I have no such familiarity, I am not part of the primary audience for this book. Consequently, the purpose of my review cannot be to offer a professional critique of a colleague’s work, for I am not competent to judge Deigh’s work qua contribution to analytic moral philosophy. However, I suspect that many readers of this REVIEW will likewise not be fully up-to-date on the most recent debates between cognitivists and subjectivists. My review is offered as a guide to those readers who are intrigued by the title of the book and wish to know what to expect within its covers.

Broadly speaking, this collection can be divided into two parts. In the first part, consisting of chapters one through four, Deigh gives an account of the nature of emotions and their relation to valuation. In the remainder, he explores particular moral topics, some of which are related to the law, such as his chapters on “Emotions and the Authority of Law” and on criminal insanity, and not all of which have much if anything to do with his theory of emotions.

Let me begin as Deigh begins, with his theory of emotions. There are two features of emotions that he wishes to highlight: (1) their intentionality (i.e., emotions are directed at or toward something) and (2) their commonality to both humans and nonrational animals. “[A]ccounting for both [features] has proven to be surprisingly difficult” (p.18). Indeed, the “main problem for the study of emotions now is how to develop a theory that reconciles these two facts” (p.38). According to Deigh, standard cognitivism consists in the view that every emotion contains evaluative (and hence propositional) thought, and [*884] therefore cannot provide an account of the emotions of nonrational animals that do not possess linguistic capabilities (pp.19-20). Again according to Deigh, Darwinism consists in the view that an emotion is a “neurophysiological event that occurs when an affect program is activated” (p.30), and cannot adequately explain the intentionality of emotions, because it has to allow that these events could occur even if they are unintelligible responses to an object (pp.32-33). Let us assume that Deigh has accurately summarized the arguments of cognitivists and Darwinists. What he proposes is the marriage or the mating of cognitivism and Darwinism.

He calls the product of this union “the environmentalist theory” (p.90). It begins by accepting the cognitivist thesis that “every emotion contains some thought” (p.91). However, it rejects the thesis that every emotion contains evaluative thought. It makes a distinction between primitive emotions and tutored emotions. Primitive emotions – i.e., the emotions common to humans and beasts – are emotions that arise spontaneously in response to objects with certain sensory properties. Tutored emotions – i.e., emotions which presuppose knowledge of values – are emotions that arise in response to objects about which one has made some evaluative judgment
(p.92). As Deigh readily admits, “the important assumption here . . . is that the class of sensory properties defining an emotion’s intentional object excludes the class of evaluative ones” (pp.92-93). Some emotions are experienced immediately and instinctively, without any conceptual mediation and hence without the need of inference (see p.58). For example, sudden and loud noises produce fear, and foul tastes and smells produce disgust. These are examples of primitive fear and primitive disgust. These emotions do not need to be learned; they have no conceptual content. By contrast, fearing dangerous objects and being disgusted by spoiled food are examples of tutored emotions, since they presuppose knowledge of the concepts of dangerousness and rottenness (pp.91-92).

There is a certain plausibility to Deigh’s theory, even if his exposition of it suffers from some inconsistencies (for example, he contends that every emotion contains some thought; hence even primitive emotions contain some thought; but primitive emotions are triggered by sensory properties and experienced instinctively; and instincts operate “independently of thought” (p.14); also, divergences in color vocabularies suggest that secondary qualities are not as concept-free as his attack on Humean theorists suggests and as his own theory requires (see MacIntyre 2006, ch. 2)). Furthermore, he gives an insightful account of the development of our emotional life by laying out how socialization transforms primitive emotions into tutored emotions (see p.117). However, it is precisely his elucidation of our emotional development that points to deficiencies in his general account of emotions and morality.

Deigh’s account of emotional development is supposed to enable him to explain how emotions become responsive to reason (see pp.67-68). On his theory, tutored emotions are responsive to reason, whereas primitive emotions are not. He gives the example [*885] of people who find cooked sea slugs disgusting (pp.86-87; see also pp.117-18). The person who feels that way could reason to herself, “It’s just an accident of my upbringing that I don’t fancy eating sea slugs.” A person who thinks that way would not assign a negative value to cooked sea slugs, and may eventually be willing to try them and find that she has a taste for them. What Deigh says about sea slugs should apply, mutatis mutandis, to human flesh; an aversion to eating human flesh is as arbitrary as an aversion to eating sea slugs (especially when one contemplates the reasons Deigh considers for possibly experiencing disgust at eating sea slugs). And yet I think most of us (apologies to the cannibalistic readers of this REVIEW) would not be able to change our emotional response to eating human flesh merely by reminding ourselves that our disgust is largely a cultural artifact. Our strong visceral reaction against cannibalism would seem to indicate that at least some tutored emotions are just as nonresponsive to reason as primitive emotions. That is, if being responsive to reason means that we can, in principle, reason our way out of an emotion or modify an emotion, then it seems to be the case that some tutored emotions are as intransigent to reason as some primitive emotions. It may even be that the emotions most resistant to reason are not primitive emotions but certain tutored emotions. But if this is true, then we would need a different account of what makes emotions responsive to reason than the one Deigh provides.

The main problem with Deigh’s account, then, is not primarily his theory of emotional development, but rather his account of the linkages between emotions on the one hand and valuation and reasoning on the other. The deficiencies of his account show up especially vividly in his attempt to articulate an “emotion-based account of the law’s authority” (p.147). On Deigh’s view, the authority of law derives from an emotional bond between the law and its subjects, and such a bond can form even when the law is completely arbitrary and incomprehensible, without any moral attributes whatsoever (p.138). Deigh believes that he has found in Kafka’s THE TRIAL evidence for his argument. In his words, “the law’s authority in this world is compellingly evident throughout the novel” (p.137). That statement, taken by itself, is not wholly wrong. But Deigh neglects what makes a Kakfa story Kafkaesque. What makes a world Kafkaesque is the incongruity of a protagonist who thinks and acts as if the world were normal in the face of the outrageously absurd. The protagonist in THE TRIAL acts as if he is living in a world in which justice and reason are real forces, when he in fact lives in a world created by Kafka’s unique imagination. Kafka shows that the idea of legal authority in such a world is ridiculous, and therewith that emotional attachment to such a legal system, though possible, is ridiculous.

But I have gotten ahead of myself. I should first sketch Deigh’s “emotion-based account of the law’s authority.” Deigh wants to make a distinction between authority and power. Let me quote him at some length. “[W]hile the power of government to coerce obedience is conditioned on the subjects’ vulnerabilities to harm and capacities for fear, the authority of law must be conditioned on something more. This additional factor, moreover . . . must be the subjects’ allegiance to the law, their [*886] willingness to be governed by the law . . . It must, in short, be the subjects’ willingness to subordinate their own ends to the ends the law sets for them” (p.147). First, I think it is more accurate to say that modern law constrains its subjects’ ends rather than that it sets its subjects’ ends. That quibble aside, “willing subordination” is the key to the law’s authority. However, it is not clear that that feature is a feature of authority. Authority is a matter of right, specifically, the right to impose an obligation; it designates a hierarchical and non-egalitarian relationship. However, willing subordination can occur even in relations of equality. A person may willingly subordinate his or her ends to the ends of his or her spouse without acknowledging that the spouse wields authority over him or her. It may even be that once one spouse makes a claim to authority over the other, the other will no longer be willing to subordinate his or her ends to the spouse; whereas it is an essential feature in matters of right that the assertion of one’s claim to that right does not diminish, much less extinguish, that right. Professor Deigh, being a married man, should know this better than I.

Deigh’s emotion-based account of the law’s authority models legal authority upon parental authority. He argues that legal and parental authority do not require any basis in legitimacy. However, his attempt to divorce law’s authority from legitimacy is unpersuasive and partially results from his failure to adequately keep in mind some basic features of law. This is ironic because he criticizes Hart for failing to adequately conceptualize the distinctiveness of law’s authority as the authority of a system of government. Had Deigh himself properly conceptualized the distinctiveness of law’s authority, he would have seen the disanalogy between law’s authority and parental authority. He does not consider why in the Western tradition children are commonly thought to outgrow their parents’ authority, whereas citizens and subjects are not thought to outgrow the law’s authority.

The analogy from parental authority to law’s authority suffers from two closely related defects. First, laws, unlike parents, can be changed, and often are changed; in the extreme case, laws can be overturned more or less in toto. Second, laws are objects of reflective choice and rational deliberation; they are preserved if good and changed if bad. A significant portion of political life consists in the assessment of the desirability of current or proposed laws. The authority of “law” is at least partially derivative from the fact that laws are objects of reflective choice. Every body of law makes an implicit claim to be legitimate and good for its subjects, and on that basis makes a claim to the subjects’ allegiance and obedience. To focus solely upon emotions in accounting for legal authority, as Deigh does, is to be blind to the nature of law and thus blind to the nature of legal authority. No doubt that is why justice is not a theme for Deigh, nor the emotion most directly related to justice, moral indignation or anger.

Perhaps that blindness also explains why the ten essays in this collection do not form a coherent and well-ordered whole, and relate to each other only haphazardly. Whatever the strengths of Deigh’s book (the chapter on promises gives a powerful argument regarding the [*887] nature and origins of the obligation to keep promises under conditions of hostile conflict), it fails to provide cogent links between emotions, values, and the law.

REFERENCES:
Deigh, John. 2008. EMOTIONS, VALUES, AND THE LAW. Oxford: Oxford University Press.

MacIntyre, Alasdair. 2006. SELECTED ESSAYS, Vol. 1: THE TASKS OF PHILOSOPHY. Cambridge: Cambridge University Press.

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© Copyright 2009 by the author, Kang Chen.

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RULES OF LAW AND LAWS OF RULING: ON THE GOVERNANCE OF LAW

by Franz von Benda-Beckmann, Keebet von Benda-Beckmann, and Julia Eckert (eds.). Burlington, VT: Ashgate Publishing Company, 2009. 302pp. Hardcover. £60.00/$114.95. ISBN: 9780754672395.

Reviewed by Beau Breslin, Department of Government, Skidmore College, bbreslin [at] skidmore.edu.

pp.879-882

The intellectual shadow of Robert Cover grows larger. Indeed, the late Yale law professor, whose untimely death in 1986 left a considerable void in the field of public law, remains an important and influential voice in the examination of legal theory and practice. Cover had much to say on a number of different topics, but he was especially erudite on the relationship between law and violence; law, he insisted, is a violent enterprise. In perhaps his most famous article, “Nomos and Narrative,” he writes that law often destroys the narrative – and thus the collective identity – of a particular people. Take decisions emerging from the Supreme Court as an example: Cover understood that any decision rendered by this country’s high court has the capacity to be imperialistic, to crowd out competing, yet weaker narratives told by the inhabitants of insular communities (e.g. the Amish). The same destructive potential exists, Cover continued, when lower courts deliver rulings or when other official institutions with power, including the democratic lawmaking bodies of the American polity, carry out their legal and constitutional responsibilities. The point is that law, an instrument frequently used to offset or manage violence, can itself destroy particular ways of life.

At no point in the entire edited volume, RULES OF LAW AND LAWS OF RULING: ON THE GOVERNANCE OF LAW, does Cover’s name or his work come up. Even still, his intellectual presence is felt throughout the book, as well as within the larger field of legal anthropology to which this volume belongs. The book is mostly about the ways in which non-governmental and semi-governmental (or non-state and semi-state) actors control legal and political resources and the mechanisms by which they are able to advance policy interests through less formal networks. Governance, we are told, is not a concept monopolized by formal political institutions like a country’s legislative or executive branches, but is rather a concept that is almost entirely informed by power relationships. Non-state actors thus have the capacity to govern themselves, and often do so in response to formal state policy. In a sense, then, the central lesson of this volume is that many organizations, actors, and institutions – both state and non-state – exert power and affect the governance of a contemporary polity. That exertion, as each chapter of the collection asserts, amounts to a violent and often destructive act.

The volume is divided into twelve chapters, the first two of which are [*880] introductory and the last ten of which are case studies. Chapter 1, “Rules of Law and Laws of Ruling: Law and Governance between Past and Future,” is written by the three volume editors. It is an odd, though mostly effective chapter in that the authors attempt to contextualize the project by providing some background on the development of the particular strand of the literature that they will explore. The authors write, “The concept of ‘governance’ [recently] points to a turn from a normative substantive conception of government exclusively tied to the national state based on constitutional and international law towards a functional characterization of governing activities” (pp.1-2; emphasis added). Their book will exclusively examine the second strand, the one that claims that the way a polity governs is functionally impacted by law and power. The distinction between strands is helpful, especially to those of us who live so much of our scholarly lives in the “normative substantive” world of politics and law. The introduction is also helpful in that it frames the book effectively. The authors insist that they are focusing on non-state methods of governance, those “soft laws” established by non-state actors and subject to great inequities and power differences. And yet the chapter is oddly organized. The general description of the book in the first half of the chapter is filled with illustrations from the case studies that follow (which is not an odd occurrence), only to be juxtaposed in the second half of the chapter by a fairly redundant description of each of the volume’s remaining chapters. To this reader at least, it felt like deja vu all over again.

The second chapter, “Reflections on the Anthropology of Law, Governance and Sovereignty” by John and Jean Comaroff, is the most interesting in the book. After doing a solid job of defining legal anthropology as the study of the culture of law in both its formal and informal iterations, the authors turn to a single fundamental question: how do legal institutions (courts) view policultural (political and cultural) phenomena within the state? How do courts, in other words, react to informal legal structures that compete with formal ones? South Africa provides a perfect example. Communities within the South African state have endured, and in some cases thrived, with their own governance structures (chieftanships, traditions, rules, and so on). John and Jean Comaroff, who have studied South Africa’s political and legal culture for most of their careers, are particularly interested in the way in which post-apartheid institutions (like courts) interfere, and thus subordinate, the more localized and culturally-based governance systems. Such a dynamic, of course, smacks of Cover’s thesis. The tone of the chapter is one of despair, or at least skepticism: the authors seem to have their doubts about the possibility of cultural laws surviving under the withering power of the state.

The remaining chapters are case studies that further support the primary thread running through the book. Chapter 3, for instance, examines the awkward relationship between government institutions and private military [*881] companies. These companies, we are told, are asked to fill gaps that state and defense departments traditionally filled. In an environment of shrinking budgets and decreasing forces, private military companies are being asked to fulfill certain duties previously mandated to the military branches. The problem is that these gaps create opportunities for private military companies to govern without significant oversight, thus creating their own rules and policies. Similarly, Chapter 4 examines the structures of governance that characterize Israel’s West Bank. The author, Tobias Kelly, is primarily interested in the ways in which authorities implement governance rules in places like the West Bank where there are difficult and very sensitive economic, political, and cultural forces in play. He refers to the practice as “mapping legal status onto space.”

Chapter 5 examines state power on the periphery – both literally and figuratively. The authors follow highland Peruvians and ask about the presence of the state in the day-to-day lives of these “peripheral” citizens. Perhaps unsurprisingly, they conclude that the formal governmental institutions do not have much of a presence and that these “communidads” are therefore governed by ambiguous land laws and direct violence. Anne Hellum and Bill Derman argue, in Chapter 6, that the governance of land restitution in South Africa has taken on a hybrid model – marrying the post-apartheid push for equality with the need for continued economic growth in the region. The governance structure, they claim, consists of law, administrative discretion, contract, and custom. Chapter 7 is a case study of shellfish management in Nova Scotia. The battle pits a monopolized organization (Innovative Fisheries Products, Inc., or IFP) sponsored by the state against local fishermen and women, many of whom would like to see the privatization of the fisheries. Governance structures and processes are dictated by the monopoly, to the detriment of indigenous populations. IFP has used some extra-legal tactics – banning certain individuals from beaches, regulating licenses, and the like – as a way to maintain control of the lucrative fishing area.

Continuing, Chapter 8 is an interesting case study about the extra-judicial process for resolving juvenile issues in Scotland. It reminded me of the literature on restorative or community justice models. Like earlier chapters in this volume, “The Governance of Children: From Welfare Justice to Proactive Regulation in the Scottish Children’s Hearing System” highlights the virtues and vices of non-state governance activities. Chapter 9 does so as well by exploring immigration policies in the European Union. These policies – involving family reunification, for example – are designed to be flexible so that member states can accommodate their own domestic immigration policies. Chapter 10, on international tax competition, Chapter 11, on the World Bank in Indonesia, and Chapter 12, on the transparency (or lack of it) of faculty appointments in Italian universities, all continue the dialogue about non-state actors and their influence over governance policies.

In all, the case studies are accessible and appropriate for the volume. There is certainly an international flavor to the collection of articles (each case study explores a different part of the world), though there is no attempt on the part of the editors to be comparative. That is to say, this book is analytically rigorous in [*882] that the treatment of each case study is deep and thoughtful, but the chapters (as is the case in so many similar edited volumes) are mostly independent of each other. What holds the collection together are two principal commonalities: the fact that the authors are investigating similar non-state actors and the scope of their governing capabilities, and the insistence on qualitative methodology. There is almost no quantitative analysis in the entire book. This book might be useful for upper level comparative law classes, especially ones wrestling with the relative influence of political and cultural factors on questions of law and governance, so long as the reader knows that she will have to do some of the heavy intellectual and comparative lifting. It might also be useful for political science courses that explore legal topics alongside those on state sovereignty, public policy, and political power.

The book, for the most part, is illuminating. The chapters all share the same feel and tone, which may reflect the dominant intellectual and methodological approach to the study of legal anthropology. They tell stories, narratives of peoples and groups that have mostly been injured and discarded by the mechanisms of the state, only to find innovative ways of reestablishing personal or political control. Some stories are more compelling than others, but each chapter has one.

The major fault of RULES OF LAW AND LAWS OF RULING is that the promise of its stately title is not fully realized. Any book on the rules of law and the capacity of law to dictate human and institutional behavior has the potential to tackle some grand ideas, especially when so much of the work mirrors the thoughts and ideas of scholars such as Robert Cover. This volume can only be described as a thin version of the impressive literature on law, violence, power, and governance. It offers the sophisticated and serious student further insight into the complex, multi-dimensional relationship that exists between state and non-state actors, law and governance, violence and order. And yet its impact within that intellectual arena, and certainly beyond those narrow confines, is probably limited. RULES OF LAW AND LAWS OF RULING doubtless belongs in the library of those who are interested in these topics, but I suspect it might not be the first volume plucked from the shelves.

REFERENCES:
Cover, Robert M. 1983. “The Supreme Court, 1982 Term – Foreword: Nomos and Narrative,” HARVARD LAW REVIEW 97:4, pp. 4-69.

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© Copyright 2009 by the author, Beau Breslin.

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STRATEGY ON THE UNITED STATES SUPREME COURT

by Saul Brenner and Joseph M. Whitmeyer. Cambridge: Cambridge University Press, 2009. 208pp. Hardback. £40.00/$65.00. ISBN: 9780521516723. Paper. £14.99/$19.99. ISBN: 9780521736343. eBook format. $16.00. ISBN: 9780511512513.

Reviewed by Georg Vanberg, Department of Political Science, University of North Carolina. Email: gvanberg [at] unc.edu.

pp.875-878

Saul Brenner and Paul Whitmeyer’s STRATEGY ON THE UNITED STATES SUPREME COURT is an attempt to assess “whether the justices on the Court behave strategically” (p.161). In posing this question, the book – which is intended for undergraduate and graduate students – engages a debate in judicial politics that has posited three alternative models for understanding judicial behavior: The “legal,” “attitudinal,” and “strategic” models. In trying to adjudicate between these – and in particular, in determining how much support there is for the “strategic” model, the book is far-reaching, and touches on a wide array of important aspects of judicial behavior. In its theoretical concerns and in its empirical scope, the book thus promises to cover a lot of ground that has been considered central by scholars of the field. Nevertheless, it is hard to avoid a sense of disappointment in making one’s way through the book. There are two reasons – one connected to the book itself, the other to the general question the book poses.

The first derives from the fact that the book is perhaps more broad in scope than can be meaningfully managed in its limited page length. The book consists of fifteen chapters that address such diverse issues as the decision by litigants to pursue a case, the justices’ votes at the cert stage, their conference and merits votes, the size of coalitions, and the location of majority opinions. Not surprisingly for a short book, the inclusion of so many aspects of judicial behavior necessarily constrains how detailed the treatment of any of them can be. Most chapters are brief, and typically revolve around a review of one or two articles or books dealing with the chapter’s topic. By itself, this is not necessarily an unwise approach. After all, a judicious selection of leading articles could well serve as a foundation for examining a more general set of claims they represent. Oddly enough, however, the choices made by the authors result in treating fairly dated research as representative of “current thinking,” and often afford more current scholarship little more than a light gloss. (For example, the chapter on coalition size consists of a five-page critique of a paper written by Dave Rohde more than 35 years ago. The chapter on the influence of public opinion on the Supreme Court is eight pages long, and relies on three sources, two of which are cited in passing.) While brevity is often a virtue, in this case, it raises two difficulties. The first is that the book necessarily ignores significant portions of the literature that bear directly on the problems at hand. For example, the possibility that Supreme Court decisions are shaped by public opinion is [*876] dismissed because “the justices are not in the business of following the public mood” (p.135) based on the conclusions of one study. The chapter does not discuss competing findings in a number of other studies (e.g., the debate between Mishler/Sheehan and Norpoth/Segal; or recent work by McGuire and Stimson). In a book that is intended to provide graduate students with an overview of the field, such a limited engagement with the literature is problematic; it becomes especially so when the authors provide no explanation for their choices in excluding or including relevant literature. This is not to suggest that Brenner and Whitmeyer do not impart important lessons; on the contrary, they offer some useful critiques of the scholarship they survey. Nevertheless, because the scope is so limited, the book runs the danger of misleading readers into believing that there are no alternative views (often more recent) that bear upon – and sometimes contradict – the principal conclusions.

A second limitation of the book derives from the broader debate regarding the “legal,” “attitudinal,” and “strategic” models. To appreciate this limitation, it is useful to start with a definition of “strategic” behavior. Behavior is strategic – a better term might be “sophisticated” – when the following conditions are satisfied: i) An actor faces a choice situation in which the final outcome that her behavior produces is a function not only of the actor’s own actions, but also of actions taken by other individuals, ii) the actor takes an action X that – could the action directly produce an outcome – is less preferred by the actor than an alternative action Y, iii) the actor chooses X because she expects – given the behavior of other relevant individuals – that the final outcome, which results from the interactions of many individuals, of taking action X is preferable to the final outcome produced by taking action Y. This is a cumbersome definition, but strategic voting provides an easy, illustrative example: A faculty member on a departmental hiring committee may choose to support candidate A whom she prefers less than candidate B if she believes that there will not be sufficient support to hire A, and she believes that her support of B may result in an offer to B, whom she prefers to the other viable candidate C. In short, sophisticated behavior takes into account the totality of the choice situation confronting an individual: Individuals act in ways that advance their interests as reflected in the ultimate outcomes that result from a social interaction. They do not act in ways that ignore the interdependence of choices in a social environment.

Given this definition, would Brenner and Whitmeyer argue that the justices do not act in a sophisticated manner? Surely not. The authors would undoubtedly agree that the justices are engaged in a high stakes game with tremendous consequences for the lives of millions of Americans. This game is structured by the collegial nature of the institution and its place in the broader American political system. The justices are highly intelligent, and have strong beliefs about the nature of good law and good policy. It would be hard to imagine that they do not take into account how the broader environment in which they act will affect the impact of their individual choices on the law and on public policy. In this very general, abstract sense, the justices are thus surely “strategic” or “sophisticated.” [*877]

Brenner and Whitmeyer, however, do not conceive of strategic justices in this sense. Rather, they seek to make a distinction – a distinction common to many judicial scholars – that suggest that justices pursue either their legal (or alternatively, policy) goals or their strategic goals. But, of course, there are no strategic goals in and of themselves. One implication is that the distinction between the “legal,” “attitudinal,” and “strategic” models is somewhat misleading. To be sure, various theories disagree about the nature of the justices’ preferences and about the constraints and incentives that they face, but even traditional proponents of the importance of legal doctrine or of the justices’ policy attitudes do not hold that justices are not sophisticated. To take a prominent example, the difference between Ferejohn and Weingast’s (1992) override model (which argues that justices will adjust their jurisprudence to take account of Congressional preferences, and moderate decisions so as not to provoke an override) and Segal and Spaeth’s (2002) work (which severely discounts such a possibility) is not that justices are sophisticated in one account and not in the other. Rather, the two arguments are distinguished by a specific – ultimately empirical – disagreement over whether Congressional overrides constitute a credible threat to judicial decisions that will shape judicial behavior. In one case, pursuing their goals requires justices to take account of Congressional preferences; in the other, this is not necessary.

Understood in this sense, the distinction between the “legal,” “attitudinal,” and “strategic” models that has haunted judicial politics is not a particularly useful trichotomy; indeed, it makes little sense to discuss a “strategic” justice unless we first specify what goals such a justice might be pursuing. We can, however, argue about the theoretical and empirical power of specific theories that differ with respect to the preferences imputed to the justices, and the nature of the constraints and incentives they are assumed to confront. Brenner and Whitmeyer’s chapter on “The Separation of Powers Model” illustrates this point. The chapter does not review or investigate specific models of inter-branch relationships; instead, it asserts (without any citations to specific models) a “separation of powers model” and then summarizes criticisms of this model. Under that generic heading, though, scholars have offered a number of competing visions regarding how and when inter-branch relations affect judicial decision-making. The problem is that the critiques that Brenner and Whitmeyer offer apply only to specific models; they are not relevant to other models. (For example, one of their critiques is that “the justices have perfect and complete information about the preferences of Congress” (p.117). This assumption is generally not central to the conclusions of models that make it; moreover, some models do not assume perfect information.) As a result, the chapter does not succeed in providing an overview of the various models of inter-branch relationships, nor does it provide a particularly compelling review of the evidence that supports or contradicts any specific model.

Over the last few years, judicial scholars have increasingly come to realize that the distinction between the three “models” of judicial behavior is not particularly useful. Instead, there is now [*878] widespread recognition that fundamental disagreements center not on whether judges are “strategic,” but rather on what the preferences of judges are, and what features of their environment – if any – they regard as relevant constraints in pursuing their goals. The Brenner and Whitmeyer book would have been more useful as a teaching tool for undergraduate and graduate courses had it reflected these developments.

REFERENCES:
Ferejohn, John, and Barry Weingast, 1992. “A Positive Theory of Statutory Interpretation.” INTERNATIONAL REVIEW OF LAW AND ECONOMICS 12, 263–279.

Segal, Jeffrey A., and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. Cambridge: Cambridge University Press.

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© Copyright 2009 by the author, Georg Vanberg.

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WITNESSES TO THE SCAFFOLD; ENGLISH LITERARY FIGURES AS OBSERVERS OF PUBLIC EXECUTIONS: PIERCE EGAN, THACKERAY, DICKENS, ALEXANDER SMITH, G.A. SALA…

by Antony E. Simpson (ed). Lambertville, NJ: The True Bill Press, 2008. 230pp. Hardback $65.00. ISBN: 9780979111617.

Reviewed by J Thomas Parker, Headquarters, Department of the Army, Office of the Inspector General. Email: j.parker [at] us.army.mil.

pp.870-874

In an obvious way, the title to Professor Antony E. Simpson’s WITNESSES TO THE SCAFFOLD; ENGLISH LITERARY FIGURES AS OBSERVERS OF PUBLIC EXECUTIONS: PIERCE EGAN, THACKERAY, DICKENS, ALEXANDER SMITH, G.A. SALA, ORWELL, tells what there is to tell about the book. The six literary figures offer accounts about hangings. In reality, the book provides more as Simpson opens with a lengthy essay and as he provides further interpretive essaysto set the stage for the individual authors.

In his introductory essay, Simpson gives a solid explanation concerning the range of crimes for which Britain meted out a death sentence, the techniques used, and the numbers of cases from 1805-1845. This landscape has been thoroughly examined (Gatrell 1994), but Simpson is more particularly focused on the fact that hangings were held publicly in England until 1868. In fact, they were widely attended gatherings. London crowds are estimated to have “routinely numbered in the tens of thousands” but a couple of particularly interesting cases may have drawn upwards to 100,000 people (p.7).

There are many explanations for public executions. There is some belief that there was doubt that sentences would always be carried out and mistrust that the wealthy could buy their way out. The opposite belief may have also existed. If the events were not public it would be possible for the government to execute its enemies without benefit of trial (pp.9-10). In all likelihood, the truth lies in more base aspects of human nature. Instead of any link to a rule working to foster a greater municipal order, the event simply catered to “a salacious, prurient element in which emotion is on display” (p.10). Although the general character of the crowd behavior may have changed over time, there was very often an attendant, carnival-like atmosphere. Still, the public nature of the ceremony may have worked, before the advent of modern policing methods, to instill order (p.19). It may have served functionally in fostering the two main tenets of British penal law: “the application of terror and mercy” (p.12).

The fact that executions were public events, then, provides much worth discussing, particularly since they continued to draw crowds from all classes, both sexes, and even children. Professor Simpson’s opening discussion on this range of issues is brief but thorough, and he draws on a wide range of source material in telling the broader [*871] story. A primary aim is to explore the crowd's psychology but, as a matter of literary criticism, to go further and ascertain whether “these authors express empathy with the crowd as fellow witnesses to brutality, or superiority to it for its coarseness and insensitivity” (p.49).

The first offering from WITNESSES TO THE SCAFFOLD comes from Pierce Egan and concerns the case of John Thurtell, who, with two accomplices, was convicted for the murder of William Weare. Thurtell was what we would probably refer to today as a “B-list” celebrity as he was involved in the theater and prominent in gambling and sporting circles. Given that he was a public figure “[n]ewspaper coverage of the murder and trial was massive” (p.55). Thurtell murdered Weare because Weare had cheated Thurtell at cards and because Weare was reputed to carry large sums of money. Egan’s account takes us from the trial through Thurtell’s hanging. His portrayal is over-the-top with its sympathy for the condemned man. Thurtell is shown to be eloquent, noble, generous to the prison officials, and ultimately repentant of his sin. Egan’s retelling of the minister’s sermon to Thurtell is remarkable for its detail (pp.80-83).

The next account comes from William Makepeace Thackeray and describes the execution of François Courvoisier. Courvoisier was a servant who concocted an elaborate scheme to rob his master and to cover the crime by making it look like a burglary-murder. Thackeray’s focus is on how the execution takes place. Unlike Egan, who apparently had access to the condemned, Thackeray imagines what goes on in Courvoisier’s final hours, but he does render a clear account of the hanging itself, what he describes as “this hideous debauchery” (p.123).

The third entry is from Charles Dickens and is made up of three letters to THE TIMES editor. The first of these was penned after Dickens witnessed Courvoisier’s execution. The second and third came after Dickens witnessed the execution of Frederick and Maria Manning, a husband and wife team who shot and bludgeoned their friend, Patrick O’Connor. Unlike the other accounts, Dickens spends little time describing the condemned. His essays are essentially calls to put an end to the public spectacle because it “attract[s] . . . the most abandoned of mankind” and because of its “debasing and hardening influence” (p.152).

The next account is from Alexander Smith. Like Dickens, Smith spends little time on the condemned men. Dennis Doolan and Patrick Redding were railroad workers convicted of murdering their oppressive overseer, John Green, in revenge for the dismissal of Doolan’s brother. Only a boy at the time, the point of Smith’s recollection is to juxtapose the spectacle of a lark alighting from the scene of the hangings. The sunny flight of this bird is actually “ghastly” as it points out how nature is unaffected in the face of the torment about to ensue (p.177). Smith does offer his opinion that individuals are attracted to a public execution because they hope thereby to gain a better understanding of what death may be like (p.170). He also offers up the fascinating idea that a public execution works to steady the condemned and that a private one would be more difficult to bear. It was his [*872] belief that the condemned would be “soothed somewhat with the idea that his firmness and composure will earn him the approbation, perhaps the pity of the spectators” (p.171).

The fifth account is from George Augustus Sala. Sala is probably the most obscure of the authors under examination. His story is called “Open-Air Entertainments.” In this account he relates how he was on his way back to London from Brighton. While looking for something to occupy his time, he finds a crowd of people at the train station who are headed off to a fair. He is shocked to find that the fair, “where mirth and jollity seemed universally to reign[,]” was not really a fair (p.200). Instead, it was the scene for the hanging of Sarah Ann French who was convicted of poisoning her husband. As Simpson points out, Sala’s surprise was probably less than genuine (p.188). Sarcastic or not, Sala neatly, draws out the point that the crowd’s behavior and the conversations of those present in no way reflected any of the moral or other reasons “for which this fair had been professedly made public” (p.203).

George Orwell gives us the last offering. It differs substantially from the others in that the hanging takes place in the 1920s and in colonial Burma. More importantly, unlike the other accounts, the crime in this instance was of no apparent interest to the general public and Orwell provides no background or other context. As in the other stories, witnesses attend the execution, but unlike the others, the audience is made up solely of government officials. Of all the offerings, Orwell’s is perhaps the most understated, but also the most compelling. Orwell explains what he thinks about the event, that it was quite horrible, but the reader can easily draw the same conclusions. As the condemned man walks his final steps, he takes pains to avoid stepping into a puddle of water. Whatever his crime it goes unnoticed and forgiven by a dog who interrupts by bounding into the procession and attempting to lick the condemned man’s face. Taken together, we come to understand that he is still a viable human capable of worrying about the minutest concerns even while on the verge of his fate. Without the complete story of the crime, one must assume the punishment in this instance was meant to deter, was simply retribution, or was a routine exercise of colonial power. Orwell’s description, then, establishes how the exercise works to convey a more basic, but more important message.

Each of the authors gives us a different perspective from which to examine the public spectacle. While one could find commonality among all the stories, Egan and Orwell are concerned to comment on a human toll that transcends any justice in the punishment. Thackeray’s primary focus is on the methodology itself. Smith ascribes metaphysical meaning to the event. Sala, if he can be taken at face value, gives insight into the crowd’s psychology. Although each author provides at least a glimpse at the crowd and its behavior, Dickens’ intent is to offer up the crowds’ behavior for condemnation.

In response to Professor Simpson’s central question, Egan and Orwell have the most empathy for the crowd “as . . . witnesses to brutality.” The rest are at a superior remove, but any ultimate conclusion is difficult and there are subtle distinctions in each case. With [*873] Sala, for example, and as Professor Simpson points out, a deeper interpretation would be that his sarcastic approach works to mask the possibility that he had no real interest in the crowd’s behavior, but the crowd offered up a way for him to sell a story (pp.186-7).

As with the opening, lengthy essay, Professor Simpson’s shorter entries provide background information to set up the authors’ stories. He covers the authors’ biographies, the condemned persons’ crimes, and their biographies where known. He provides insight into how the executions may have influenced the authors’ other work. His research into each story and its author is quite thorough as the numerous footnotes establish. In Dickens’ case, the letters to the editor would be difficult to understand without the interpretive essay. Most importantly, Professor Simpson has woven all of this straightforward material together, but he has further contextualized the information. As an example, he looks beyond Thackeray’s description of the crowd to other newspaper accounts in order to confirm Thackeray’s accuracy (p.106, n.14). As another example, he digs to find that Sala’s point that public executions fail to deter was confirmed when another woman who lived near the site of the French hanging was charged herself for poisoning within two weeks of French’s execution (p.193).

This book should prove useful to those with an interest in the particular authors represented, to those with an interest in the history of the administration of British justice, and to activists and attorneys who deal with capital punishment. For the latter group, the work offers small practical utility, but will broaden one’s understanding. Professor Simpson’s essays will offer much to literary scholars, but they will have undoubtedly already considered the excerpted portions. The opposite may prove true for historians in that the excerpted portions should broaden their knowledge about the literary figures, but Professor Simpson’s essays probably discuss issues with which they are already familiar. For those interested in law in literature, WITNESSES TO THE SCAFFOLD provides welcome insight into how a process, other than the jury trial, may have affected and infused the work of the authors under consideration. WITNESSES TO THE SCAFFOLD could serve as an introductory text for those with a focused interest on the subject, but it may work best supplementing more comprehensive treatments.

These possibilities aside, WITNESSES TO THE SCAFFOLD is a relatively short work, but it takes one into the midst of the crowd. As much as one might find answers to questions about the authors and fodder for debate on Professor Simpson’s central question, the book also works to bore at questions about whether such spectacles would come off today and whether any of us would have the nerve to attend even if we were like Sala and obviously bent from the outset to foist up the crowds’ behavior. With a lucrative, graphic entertainment industry churning away, perhaps answers to those questions are not far off, but the stories and essays in WITNESSES TO THE SCAFFOLD bring us as close as we should ever hope to come to actually witnessing an execution. [*874]

REFERENCE:
Gatrell, V.A.C. 1994. THE HANGING TREE: EXECUTION AND THE ENGLISH PEOPLE 1770-1868. New York: Oxford University Press.

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© Copyright 2009 by the author, J Thomas Parker.

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COURT-MARTIAL OF APACHE KID: RENEGADE OF RENEGADES

by Clare V. McKanna, Jr. Lubbock: Texas Tech University Press, 2009. 256pp. Hardcover. $29.95. ISBN: 9780896726529.

Reviewed by Mary T. Hall, Political Science Department, St. Mary’s College of Maryland. Email: mthall [at] smcm.edu.

pp.866-869

Clare McKanna attempts to depict the social and legal challenges facing Indian Scouts in the frontier west by focusing on the legendary Apache Kid, who served as a First Sergeant in the Indian Scouts at the San Carlos Agency in Territorial Arizona in the 1880’s. Indian Scouts, who were used extensively as trackers during the Indian Wars, generally entered into half-year enlistments with the U.S. Army and were thus subject to not only tribal culture and territorial law, but also to military law during the course of their enlistment periods. Sergeant Kid was court-martialed and convicted of mutiny and desertion after he left his post to avenge the murder of his grandfather six months earlier. This book delivers a highly-readable portrayal of the duties and history of the Indian Scouts, and McKanna accurately concludes that the evidence did not support a finding of guilty as to the mutiny charge. However, McKanna struggles, and often misses the mark, in his assessment of substantive and procedural military law, which renders the book an unreliable reference for frontier military justice at the close of the 19th century.

In December 1886, an Apache named Rip allegedly killed Sergeant Kid’s grandfather. Tribal custom all but demanded that Sergeant Kid avenge the death of his grandfather, and in late May 1887, Sergeant Kid left his post at the San Carlos Agency without authority (an “AWOL” in common vernacular), participated in a three-day drinking party with other Apache Scouts, and then traveled over 20 miles from his post to a canyon where he located and shot Rip. The two offenses which netted a court-martial actually originated with events that occurred when Sergeant Kid attempted to surrender at San Carlos after Rip’s murder. Accompanied by four other Scouts (subordinates who had gone AWOL with him) and a number of other Indians on horseback, Kid presented himself on June 1, 1887, to his commanding officer, who ordered the five Scouts to surrender their weapons, which they did without protest. When the commanding officer ordered them to the guardhouse for confinement by simply uttering the word “Calaboose,” a translator misrepresented to the Scouts that they were going to be transported to Florida instead. This pronouncement apparently prompted the Apaches on horseback to discharge their weapons, in the process shooting the senior civilian scout at San Carlos in his leg. None of the shots were fired by the five Scouts, who used the ensuing confusion to flee the agency. At the urging of Brigadier General Nelson Miles, commanding general for the Arizona Territory, Sergeant Kid and his four subordinates surrendered themselves some 24 days later. [*867]

McKanna’s thesis is that Kid was “rudely introduced” to U.S. military justice because he had absented himself from his military duty station to “follow Apache social traditions” (p.81). This premise, however, is undermined by three factors: Sergeant Kid’s military record, the nature of the charges, and the time gap between the death of his grandfather and his revenge killing of Rip. Sergeant Kid by this point had not only served multiple enlistments, but had been promoted to the highest enlisted rank available to Indian Scouts, which meant that he would not have been wholly unfamiliar with the military justice system or with basic military duties such as remaining on post and obeying the orders of his commanding officer. Moreover, he was not charged with murdering Rip or with absenting himself prior to killing Rip; thus, while the initial absence may have been prompted by the need to avenge his grandfather’s death, the absence charged by desertion was apparently caused by panic over the idea that he was going to be transported to Florida. Nor was the mutiny charge directly related to Apache social traditions; rather, it was based on the allegation that the Scouts had taken up arms and fired on their commanding officer. Although the evidence did not adequately prove all of the elements of mutiny, it certainly supported a finding of guilt to disobedience of orders, which was also a death-eligible offense. All five Scouts were taken to courts-martial, where they were found guilty of both desertion and mutiny (albeit with a minor modification to the language of the mutiny specification) and sentenced to death.

As to the timing of the charges, McKanna never fully addresses why Sergeant Kid waited six months to fulfill his tribal obligation to avenge the death of his grandfather. What is legally significant about this period is that Sergeant Kid did not reenlist in the Army until the month before he left San Carlos without authority and killed Rip. Sergeant Kid arguably could have avoided any issue with the Army by avenging his grandfather’s death during his break between enlistments. Although revenge may be a dish best served cold, the evidence suggests that the decision to kill Rip, six months after the grandfather’s death, may have been the likely consequence of a three-day drinking binge, not an unavoidable conflict with Apache tradition.

As with current court-martial procedure, records of Army courts-martial in the 1880’s were forwarded for review by the senior officer who had convened the court-martial, in this case General Miles. Disturbed by the inadequacy of the evidence and the severity of the Scouts’ sentences, General Miles ordered rehearings, at which all five death sentences were mitigated to life sentences, a process which McKanna erroneously refers to as a “new verdict” (p.127). When he received the records of trial back with the revised sentences, General Miles then reduced Sergeant Kid’s period of confinement to 10 years as a matter of clemency. McKanna incorrectly claims that General Miles reduced the sentences of all five Scouts to 10 years; in fact, two sentences were reduced from life to 20 years, one from life to 15 years, and one from life to two years due to the Scout’s youth and a clemency recommendation from the court-martial panel. Thus, Sergeant Kid, despite the fact that he was the senior-ranking Scout of the five, eventually [*868] received the second-lowest approved sentence. The records were then forwarded to the Judge Advocate General of the Army for review and recommendations before final action was taken by the Secretary of War. In response to the Judge Advocate General’s conclusion that the courts-martial were fatally flawed by the denial of defense challenges for cause against the panel members, the Secretary of War ordered Sergeant Kid’s release from confinement less than 18 months into his 10-year sentence. Upon Kid’s return to San Carlos, he was prosecuted by territorial officials for, and convicted of, a murder he had allegedly committed during the unauthorized absence following the attempted surrender. Sentenced to confinement for seven years, he escaped from custody while being transported to prison in Yuma, and remained a fugitive for the remainder of his life.

McKanna’s narration of Sergeant Kid’s story is the high point of the book and certainly makes for intriguing reading as military history. Unfortunately, the low point is McKanna’s legal analysis. The single most glaring error is his attribution of the prohibition against cruel and unusual punishment to the Seventh Amendment (p.71). The bulk of the errors, however, pertain to military law. For example, McKanna treats the required post-trial reviews of courts-martial as appeals, likening the office of the Judge Advocate General of the Army to “an appellate tribunal” (p.120) with the power to overturn convictions and sentences (p.123). This description, however, appears to be a misreading of William Winthrop’s MILITARY LAW AND PRECEDENTS (1896 edition), wherein Winthrop notes that British military law vested its Judge Advocate General with the power to overturn convictions and sentences, whereas that power was vested in the American military justice system in the President or Secretary of War, acting on the recommendation of the Judge Advocate General. Indeed, it was the Secretary of War, acting on the recommendation of the Judge Advocate General, who took final action on these Scout cases.

Moreover, McKanna, in providing a highly sympathetic view of Sergeant Kid’s actions, feels compelled to make numerous sweeping conclusions about the military justice system without providing adequate support for those conclusions. As an example, he broadly claims, unadorned by citation to any source, that younger officers who served on court-martial panels “knew the consequences if they resisted the wishes of their superiors” (p.75). He then focuses on the restriction, which still exists in military law, against revealing the vote of any particular member of a court-martial panel. In a system where a unanimous vote is required to convict, privacy of any individual vote is not an issue where a verdict of “guilty” has been rendered. However, a conviction at a nineteenth-century court-martial only required a majority vote. Maintaining the secrecy of votes helped to assure panel members that their votes would not result in any adverse action from third parties; it was not a means of squelching dissent, as McKanna implies. Many of these flaws could likely have been avoided had McKanna added someone well-versed in military justice to those who screened his manuscript.

McKanna declares that no matter what Sergeant Kid did, “it would have been [*869] impossible for him to receive a fair trial from either the military or civilian criminal justice systems” (p.14); Sergeant Kid essentially “never had a chance” (p.15). There were certainly injustices committed in Kid’s case, most notably the denial of the challenges for cause at trial, the finding of guilty to mutiny in the absence of any intent to raise arms against the commanding officer, and an intentional six-month delay by the Secretary of War before directing the release of the Scouts from confinement in late 1888. Yet Sergeant Kid was also provided with zealous defense counsel who peppered the record of trial with procedural and evidentiary objections, had the good fortune of having his record reviewed by a general who was keenly familiar with Indian Scouts and was inclined to grant clemency, and was the beneficiary of a legal review conducted by one of the most highly-regarded attorneys ever to serve as Judge Advocate General. Indeed, it appears that Sergeant Kid’s status and record as an Indian Scout helped contribute to a favorable outcome during his post-trial review.

Notwithstanding the weaknesses noted above, COURT-MARTIAL OF APACHE KID is a fascinating insight into a chapter of American military history that is seldom the subject of this degree of examination. It may very well be a major contribution to American Indian history, as claimed by one of the reviewers on the back of the dust jacket, but it is not, as the same reviewer commented, a major contribution to the history of military justice.

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© Copyright 2009 by the author, Mary T. Hall.

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THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS: CONSTITUTIONAL PRINCIPLES AND LIMITATIONS

by Peter Gerangelos. Portland, Oregon: Hart Publishing, 2009. 328pp. Hardback. £50.00/$105.00. ISBN: 9781841136615.

Reviewed by Rebecca Hamlin, Department of Political Science, Grinnell College. Email: hamlinr [at] grinnell.edu.

pp.862-865

The field of comparative constitutional law is expanding in new and exciting ways; for too long it has been held back by the assumption that national legal institutions and constitutional principles reflect the distinct culture and history of the place in which they developed, and are thus incomparable. The particularist approach to the study of law has downplayed the existence of cultural commonalities across nations, and ignored the fact that many institutions and concepts have been (and continue to be) transplanted into new countries through colonialism and, more recently, globalization. Contemporary comparisons, then, are ripe with opportunities for building theories about whether there are universal constitutional principles that operate in similar ways across national contexts.

The concern at the heart of THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS fits nicely within the agenda of the recent wave of comparative legal scholarship. It examines a central principle of constitutional law – the separation of powers – across several jurisdictions, most thoroughly comparing the United States to Australia, and bringing in the United Kingdom, Ireland, and India as shadow cases. Specifically, Gerangelos explores the nature of the relationship between the judiciary and the legislature in these countries, illustrating in great detail the degree to which the line between these two branches is policed successfully, and how these inter-branch dynamics might be changing over time. It is a fascinating topic, and Gerangelos is someone who obviously knows the material incredibly well, and has thought deeply on the question of the nature of the separation of powers.

Part I (Chapters 2 and 3) is a rich description of jurisprudence responding to legislative interference in pending cases. Gerangelos begins by pointing to a seminal case in commonwealth law, a case originating in Sri Lanka but decided by the British Privy Council before Sri Lanka became independent from the United Kingdom: LIYANAGE v. R (1967). Out of this case, Gerangelos argues that a direction principle emerged: if the legislature is providing direction or prescription to the judiciary on a particular pending case, it constitutes a violation of the separation of powers

Gerangelos then examines the case law of his home country (Australia) and argues with some consternation that the direction principle has not been consistently applied, and that recent Australian jurisprudence is generally unclear about the pending case issue. In [*863] particular, he contrasts the court’s approach in LIM v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (1992) with NICHOLAS v THE QUEEN (1998). Moving on to the United States, Gerangelos finds that it too had an early case outlining a direction principle: United States v. KLEIN (1871), but as in Australia, Gerangelos finds that more recent cases, such as PLAUT v. SPENDTHRIFT FARM INC (1995), MILLER v. FRENCH (2000), and the 11th Circuit decision in the high-profile SCHIAVO ex rel SCHINDLER v. SCHIAVO (11 Cir 2005), have taken a soft approach to the question of separation of powers in pending case scenarios, and seem to have moved away from a clear cut jurisprudential rule.

After uncovering these interesting over-time trends and cross-national similarities, Gerangelos stops short of building a fleshed out comparative theory. His observations express indignation over the reluctance of courts to be more firm in policing the separation of powers, but there is no discussion of why courts are behaving this way, or what the limits of judicial tolerance might be. Especially because many of these cases deal with hot-button political issues, such as euthanasia and the treatment of unauthorized immigrants, it was surprising and disappointing to this reader that the politics surrounding these inter-branch conflicts was eclipsed by a purely doctrinal discussion of the cases. In fact, in his discussion of the Miller case (which dealt with a provision of the Prison Litigation Reform Act of 1995 that restricted the right of prisoners in the United States to sue over prison conditions), Gerangelos speculates that the court’s 5-4 majority opinion “misunderstood the case” and did not see its broader ramifications (p.161), or it would have decided the case differently. This apolitical interpretation of the opinion of the court, which split neatly along the liberal/conservative fault line, seems implausible at best.

Gerangelos concludes the first part of SEPARATION OF POWERS by arguing that there is a need for increased formalism and a re-assertion of the direction principle in both the United States and Australia. He states: “there needs to be some attempt to formalize the indicia of direction to support the efficacy of the rule itself, rather than making it dependent on the facts of each case” (p.115). This conclusion is illustrative of the difference between a work of legal analysis and that of political science. Ultimately, it seems that Gerangelos sees a problem with the rule, not its application. He makes no suggestion that some judges might choose to ignore the principle in particular politically charged situations.

Part II (Chapters 4 and 5) moves on to a different issue within the separation of powers: legislative revision of final judicial judgments. Gerangelos shows that in both the American and Australian cases, there is far less ambiguity over the line between judicial and legislative power, and far more consistency in the case law than in the pending case scenario. He then contrasts that certainty with the United Kingdom, where courts have been reluctant to step in because the notion of a separation of powers is not “entrenched” in Britain, due to its unwritten constitution (p.200). He then provides further illustration with the [*864] “middle case” of India, where the notion of a separation of powers is written in the Indian constitution, but is more ambiguous than in the American or Australian constitutions (p.202). Thus, he argues that the Indian Supreme Court’s reaction to final judgment situations is also more ambiguous.

Through this four-country comparison, Gerangelos seems to be suggesting that courts are emboldened by the degree to which their own power is laid out in an explicit, written declaration. But again he does not flesh that suggestion out into a full-blown theoretical claim. Especially since this assertion comes on the heels of the dramatically different pending case scenario, THE SEPARATION OF POWERS raises a lot of unanswered questions. For example: what is the relationship between final judgments and pending cases in the United States and Australia? Why should the concept of the separation of powers be so unclear with one, and totally clear in the other instance? If the text of the constitution is so essential to protecting the separation of powers, why does the resolve of courts to defend their turf seem to be weakening in the pending case scenario? And what makes the final judgment scenario impervious to this same trend? Without a sense of what is driving the trend, it is difficult to know why it is limited to one area of the legislative-judicial relationship.

In the discussion entitled “Conclusions on the Final Case Scenario” (p.267), Gerangelos attempts to make a summary of the basic doctrinal rule that should dictate situations where courts are assessing legislation that attempts to revise final judgments. It is a provocative departure from the particularist approach to comparative constitutional law, and certainly there is a basic sense in which it is a universal concept: powers must be separate from one another in order to protect democracy. But it is not clear why there is a need for a specific universal rule regarding the final judgment scenario that should work the same way everywhere.

Part III engages in an explicit comparison with the United Kingdom and the European Court of Human Rights. Gerangelos re-iterates the point that there is no constitutional separation of powers in the UK, so it depends on the “self-restraint” of parliament (p.272) and is more likely to “fall short of enforceable constitutional limitations” (p.276) than the United States and Australia. He then goes on to suggest that instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms “can offer some protection to the decisional independence of the judiciary” (p.305). However, from the discussion that surrounds this claim, the power of the ECHR seems more theoretical than probable. It is not clear how the ECHR might actually be working, or work in the near future, to push the UK away from the model of parliamentary supremacy. It would have been helpful here to have some examples of policy areas that would be impacted by a change of that nature.

Gerangleos states at the outset that the purpose of THE SEPARATION OF POWERS is to identify the limitations on legislative interference in judicial function that can be derived from the separation of powers doctrine. This formulation seems to suggest that such [*865] limits exist a priori, rather than being constantly set by courts. After reading this book, the mystery of what makes courts reluctant to set limits on legislative interference in their own power still remains, a missed opportunity to build a theory of comparative constitutionalism.

THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS assumes some knowledge of commonwealth law that will make some parts of it inaccessible to American readers, and it is written in a very dense, legalistic style that will be difficult for those without legal training to decipher. Nevertheless, it is a carefully crafted survey of both the case law and scholarly analysis about these cases in law reviews. Anyone who is deeply interested in the question of the legislative-judicial relationship will find this analysis to be thorough and illuminating.

CASE REFERENCES:
LIM v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (1992) 176 CLR 1.
LIYANAGE v R [1967] 1 AC 259.
MILLER v FRENCH, 530 U.S. 327 (2000).
NICHOLAS v THE QUEEN [1998] HCA 9.
PLAUT v. SPENDTHRIFT FARM INC., 514 U.S. 211 (1995).
SCHIAVO ex rel SCHINDLER v SCHIAVO , No. 05-11628 (11th Cir., March 25, 2005).
United States v. KLEIN, 80 U.S. 128 (1871).

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© Copyright 2009 by the author, Rebecca Hamlin.

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REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION

by George Anastaplo. Lexington: The University of Kentucky Press, 2009. 320pp. Cloth. $70.00. ISBN: 9780813125336. Paper. $26.95. ISBN: 9780813192307.

Reviewed by Christopher A. Riddle, Department of Philosophy, Queen’s University, Canada. E-mail: christopher[dot]a[dot]riddle[at]queensu[dot]ca.

pp.858-861

In recent years, bioethical issues such as those surrounding life and death have come to the forefront of not only philosophical, political, and legal discussions, but in contemporary, non-academic thought as well. George Anastaplo’s REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION is an incredibly creative and sprawling piece of work that transcends these boundaries. Anastaplo seamlessly weaves some of our most commonly held notions – life, death, religion, liberty, natural law, morality – into an intricate and cohesive story. This book is in many ways demonstrative of both Anastaplo’s breadth of scholarship, and whimsy.

The first half of REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION examines a wide range of historical work to provide the reader with an understanding of how many authors of the past, such as Eurpides, William Shakespeare, and Abraham Lincoln, have framed how we think about life-and-death issues today. In Anastaplo’s words, “The Essays developed here begin with reminders of what is said elsewhere (in space and time) about matters critical for understanding the life-and-death issues addressed in American constitutional law” (p.ix). He continues, “the first half of Part One mostly recalls the ways that such issues were addressed by gifted authors prior to the emergence of the United States” (p.ix).

Here Anastaplo discusses Thucydides and funerals, Eurpides and resurrection, and mortality and the Declaration of Independence, to name but a few examples. While this first half contains many wonderfully insightful observations, there are some omissions that arise in the second portion of Part 1 that I was disappointed to discover.

Take for example, the discussion of public health and the enhancement and protection of life contained within Chapter 9, “Public Health and Private Consciences”. Here Anastaplo examines the Opinion of the Supreme Court in BUCK V. BELL (1927), a case in which Carrie Buck, a woman with an intellectual disability, was committed to a State Colony and subsequently sterilized. Justice Oliver Wendell Holmes cited utilitarian concerns for the general welfare of society in upholding the order for sterilization. Such a case immediately evokes thoughts of Ashley X, a girl born in 1997 with severe developmental disabilities whose treatment included growth attenuation, a hysterectomy, breast bud removal, and an appendectomy. Ashley’s treatment received much academic attention in early 2007 and such discussions extended into popular culture when in 2008, Ashley’s parents granted an [*859] interview to CNN to discuss their decision to undertake such treatments. Ashley would even have a Law & Order episode based upon her ordeal. While Anastaplo performs a wonderful balancing act in integrating classic texts and Supreme Court decisions, I think care needs to be taken not to omit contemporary examples such as Ashley.

That said, make no mistake that this first portion of the book is so sprawling and vast that it is somewhat churlish to criticize Anastaplo for such an omission. After all, he could not cover everything of interest, and indeed, stokes an admirable amount of fires.

While the first portion of this book is wonderfully creative and enlightening, in many ways the meat of REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION is its second half. When Anastaplo contextualizes these texts within American constitutional law, REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION hits its stride. These works are critically examined in relation to complex Supreme Court decisions that may sometimes prove to be at odds with our established conceptions of life and death. Social questions such as the right to contraception, the legality of abortion, the acceptability of capital punishment, the right to die, and the presence of religious teachings in school, are all scrutinized through a thorough examination of the relevant Supreme Court decisions. GRISWOLD v. CONNECTICUT (1965), ROE v. WADE (1973), FURMAN v. GEORGIA (1972), CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH (1990), and EPPERSON v. ARKANSAS (1968), all serve as testing grounds and means of contextualization for the notorious slippery answers to the abovementioned questions.

Here again however, I fear Anastaplo has missed some opportunities to provide contemporary examples to contextualize some of the discussions he undertakes. Take for example, the Fourth Chapter of Part 2, “Roe v. Wade (1973) and the Law of Abortion,” which discusses the Opinion of the Court in ROE v. WADE (1973) when ruling in favor of the right of women to abort a fetus for any reason until the point when it becomes viable. Seeing as REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION is well-suited to be read by those whose expertise resides outside of the realm of legal scholarship, a more thorough discussion of the abortion debate might have served Anastaplo’s readership well. While Anastaplo eloquently captures a portion of this debate when he states, “on one side are the pro-choice advocates, who prefer not to identify themselves as advocates of abortion or the destruction of fetuses . . . on the other side are the pro-life advocates, who prefer not to identify themselves as advocates of the suppression of abortions or of the control of women” (p.123), he nevertheless missed what I think is a viable opportunity to engage his readers in this debate further – to both stimulate thought, and provide the historical context of argumentation on this debate.

Pivotal work such as Judith Jarvis Thomson’s A DEFENSE OF ABORTION (1971) could simultaneously stimulate thought as well as provide the rich history of argumentation surrounding ROE v. WADE (1973). Thomson invokes her famous violinist example to demonstrate the right to abortion. She states:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist's circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, "Look, we're sorry the Society of Music Lovers did this to you - we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But never mind, it's only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you. (pp.48-49)

Thomson of course, argues for the rights of the woman, and asks: “Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still?” (p.49).

Through the utilization of the above argument, Anastaplo could have demonstrated in an accessible, but no less rigorous manner, how arguments have been framed and addressed within the rich academic history surrounding this topic.

Similarly, within the Ninth Chapter of Part 2, “Washington v. Glucksberg (1997) and Assisted Suicide,” Anastaplo makes the distinction between “killing” and “letting die,” or “letting go.. This debate has an equally rich history of argumentation that is largely absent in REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION. There are numerous influential texts that clearly outline this debate that could have been drawn upon by Anastaplo. Take for example, LIFE AND DEATH WITH LIBERTY AND JUSTICE: A CONTRIBUTION TO THE EUTHANASIA DEBATE, by Germain Grisez and Joseph M. Boyle, Jr.; ACTIVE AND PASSIVE EUTHANASIA, by James Rachels; IS KILLING NOT WORSE THAN LETTING DIE?, by Winston Nesbitt; or finally, WHY KILLING IS NOT ALWAYS WORSE – AND SOMETIMES BETTER – THAN LETTING DIE, by Helga Kuhse.

However, as stated previously, Anastaplo covers an admirable amount of ground in REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION and sparked my interest and curiosity to such an extent, that I found myself wanting more. It was a very rare occasion that I was intrigued by a topic only to find subtle aspects of the debate missing.

In fact, Anastaplo offers a sprawling and rigorous contribution to legal scholarship that is at the same time, accessible to a remarkably wide audience. Readers interested in bioethics, political science, history, or even literature, will find themselves enthralled by Anastaplo’s thoroughness. In this sense, the monograph would be of interest to not only political or legal scholars, but a wide breadth of individuals. Anastaplo’s contribution to legal scholarship is a large one, and REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION only serves to further establish him as one of the most interesting legal theorists of today.

REFERENCES:
Grisez, Germain and Joseph M. Boyle, Jr. 1971. LIFE AND DEATH WITH LIBERTY AND JUSTICE: A CONTRIBUTION TO THE EUTHANASIC DEBATE. Notre Dame: University of Notre Dame Press.

Kuhse, Helga. 1998. “Why Killing is Not Always Worse – And Sometimes Better – Than Letting Die”. CAMBRIDGE QUARTERLY OF HEALTHCARE ETHICS 7(4):371-4.

Nesbitt, Winston. 1995. “Is Killing No Worse Than Letting Die?” JOURNAL OF APPLIED PHILOSOPHY 12(1):101-106.

Rachels, James. 1975. “Active and Passive Euthanasia”. NEW ENGLAND JOURNAL OF MEDICINE 292(2):78-80.

Thomson, Judith Jarvis. 1971. “A Defense of Abortion.” PHILOSOPHY & PUBLIC AFFAIRS 1(1):47-66.

CASE REFERENCES:
BUCK v. BELL, 274 U.S. 200 (1927).

CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, 497 U.S. 261 (1990).

EPPERSON v. ARKANSAS, 393 U. S. 97 (1968).

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

ROE v. WADE, 410 U.S. 13 (1973).

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© Copyright 2009 by the author, Christopher A. Riddle.

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