MULTICULTURALISM AND LAW: A CRITICAL DEBATE

by Omid A. Payrow Shabani (ed). Cardiff: University of Wales Press, 2007. 338pp. Hardback. £60.00/$85.00. ISBN. 9780708320068. Paperback. £19.99/$35.00. ISBN: 9780708320051.

Reviewed by Warwick Tie, School of Social and Cultural Studies, Massey University. Email: w.j.tie [at] massey.ac.nz.

pp.167-171

Taking the reader beyond its overt goal, to review the capacity of law to traverse the gap between political equality and socio-cultural difference, the collection of scholarly essays that comprises MULTICULTURALISM AND LAW raises timely questions about the knowledge-production practices appropriate to this subject material. The prompt for those questions comes from the architecture of the text.

MULTICULTURALISM AND LAW structures its inquiry into law’s ability to mediate between equality and difference by dividing possible approaches to that issue into two analytic camps, each of which has two versions: liberal political theory and critical theory. ‘Liberalism1’ promotes the ideas of ‘individual rights and [of] a neutral state that is not committed to any sort of cultural, religious or collective project’ save those denoted by the goals of ‘personal freedom and physical security’ of individual citizens (p.2). Liberalism2 also highlights individual rights in the constitution of the liberal state but argues for the importance of ‘national-cultural context where an individual’s sense of belonging becomes important in exercising his or her rights.’ Critical theory, in contrast to the substantive orientation of liberalism, seeks the discovery of some or other procedural ‘principle of universalization’ through which the diverging political claims of distinct socio-cultural communities can be simultaneously engaged (pp.2-3). Adding sociological complexity to this vision, critical theory2 suggests that the simple quest for universal grounds should be supplemented with an historicized account of any such procedural solutions that come into being.

Providing content for the consideration of this philosophical debate are a set of themes germane to the issue of law’s prospects within societies that have come to be characterised by socio-cultural diversity: ‘the nature of political deliberation in pluralistic societies;’ ‘the nature of legal interpretation in pluralistic societies;’ the role of law in ‘reconciling equality and difference;’ and the increasingly globalized context of politico-legal decision-making.

Leading the reader’s consideration of each of these themes are principal essays by eminent scholars, each of which is accompanied by two or three commentaries written from perspectives whose divergences from the principle have the prospect of advancing insight into the points being initially made. No attempts are made to reconcile interpretive differences between the approaches at the level of the themes themselves. [*168]

Opening the theme on political deliberation from the perspective of critical theory2, James Tully argues that consideration of the relation between socio-cultural difference and political equality has traveled from the simple quest to recognise such difference to that of the establishment of norms through which mutual recognition might be forged between socio-cultural communities. A trend has become discernable within the latter, towards a normative architecture that assumes a measure of reasonable on-going disagreement over the nature of any such norms. Essays by Thomas McCarthy and Jocelyn Maclure work from the same procedural orientation as Tully, enlarging more than contesting key elements of the principal essay.

Reviewing the matter of judicial interpretation in a manner suitably catholic for a lead essay, Jeremy Webber’s ‘A judicial ethic for a pluralistic age’ seeks to develop a just methodology for interpreting cases in which the salience of socio-cultural difference outruns the address of the specific statutes being used in each instance. The model attempts to replace the default judicial practice common to such cases, of the judge inserting their subjective opinion, with that of an ethic through which the best substantive arguments put forward in the case are integrated in a manner which ensures that each participant sees their concrete situation reflected in the justice of the outcome. In agreement with the overall tenor of Webber’s proposal, Kenneth Baynes and Simone Chambers seek to rearticulate the ethic in terms of a more context-sensitive proceduralism, challenging an underpinning assumption in Webber’s ethic that the final signifier of law is substantive justice.

An essay by Jeremy Waldron opens for discussion the issue of law’s prospects for reconciling equality and difference. Writing within the tradition of liberalism1, Waldron identifies nine institutional instruments by which the law presently exhibits a capacity to accommodate socio-cultural particularity. This capacity has limits, however, limits that are quickly reached when legal decision-making interprets particularity in the concrete terms of plaintiffs’ socio-cultural practices rather than at the symbolic register of their ‘voice.’ It is at this level of voice and not socio-cultural practice, Waldron argues, that attempts to reconcile equality and difference stand a chance of succeeding. The two essays which reflect on Waldron’s argument, by Michel Rosenfeld and Douglas Moggach, begin to depart in style from other contributions, highlighting what thus far has remained an unspoken characteristic of the text as a whole, that is, its reification of the meanings of law and of multiculturalism. Rosenfeld’s contribution in particular interrupts that reification of law with a Hegelian interpretation that historicizes both the emergence of the philosophical dialectic of equality and difference and of legal responses to it.

The final theme, that of the global environment within which law and multiculturalism come into proximity with one another, in effect operates as two lead essays (by Jürgen Habermas and Will Kymlica) coupled with a commentary article on each (by Neil Walker and Courtney Jung, respectively). Habermas reviews the [*169] divergence in juridical styles that has emerged between the pursuit of international law as a means for resolving intra-state tensions and the pursuit of a world republic capable of acting to that same end (materializing in recent times in the doctrine of Pax Americana). Finding in favour of international law, Habermas proposes a principle of cosmopolitan multi-levelness for that law, through which supra-state, national, and sub-national agencies might successfully negotiate. Walker cautions that if this is to be any more effective than a rudderless ship, the proposition must be grounded in ongoing consideration of cosmopolitanism’s future as an analytic strategy in a socio-culturally diverse world.

Will Kymlica uses the context of Europe’s relation to cultural minorities in order to review the capacity that ‘international standards’ might have for giving due recognition to the concrete realities of locally embedded cultural identities. While supportive of the formulation of such standards, Kymlica indicates the persistence of problems where those standards give effect to either a right to territorial autonomy or the right to enjoy one’s culture. These problems take two related forms: threats of succession by minority cultural groups and an offensive tokenism on the part of majority cultures. In light of these problems, European states have moved towards a standard which focuses upon participation by minority communities in politico-legal processes, an approach that Kymlica supports for the pragmatic reason that it has the potential to hold the outbreak of ethnic violence at bay. Courtney Jung challenges an unacknowledged assumption which informs Kymlica’s liberalism: that culture constitutes identity. Her reason for doing so is that she contests the constitutional implication which follows, that consideration of culture must be the guiding analytic strategy informing legal innovation. Culture is, instead, primarily a political category, mobilised at the level of the polity not for the simple purposes of enhancing members’ senses of belonging but for gaining political traction for those communities. To this end, culture is particularistic and strategic rather than universal in character. Against Kymlica’s own declared intentions, Jung suggests, his currently pragmatic mood is moving him towards this same understanding.

Volume editor Omid A. Payrow Shabani suggests, in his introductory essay, that this diverging collection of essays demonstrates law’s capacity to productively address the tension between political equality and socio-cultural particularity. The argument collectively exhibited by the text’s contributors indicates that particularity – whether understood as difference, identity, self-determination, or plurality – is intrinsic to the notion of constitutionally unified political community. ‘At the core of this convergence’ between the essays, Shabani states towards this point, ‘one can find the idea of democratic self-determination as the necessary condition for participants in polity to see themselves in relation to the law simultaneously as its authors and its subjects. The principle of democratic self-determination as institutionalized in law, then, gives legitimacy to the system and bonds the citizen[s] together’ (p.15).

This finding by Shabani with respect to the contributions as a whole incites the [*170] question with which I opened regarding the knowledge production practices involved in the construction of the text, specifically the use of liberal philosophical debate to structure deliberation. Organised in this manner, the editor’s synthetic moment suggests that there exists no forms of difference pertaining to the social that cannot be rendered intelligible within (broadly) liberal political terms. The finding thus becomes at risk of courting a criticism that its knowledge production practices construct the notion of liberal order in a wholly ideological manner. As Fredric Jameson has described similar moves (1997, p.273), a liberal polity would thereby come to have ‘no outside in terms of which it could be found lacking.’

One contribution to the collection has already been noted as having the potential to productively interrupt the ideological closure thus inaugurated, that being the essay by Rosenfeld which historicizes the otherwise reified sense of law that characterises the text. One further dimension of the text also has the potential to interrupt this closure, this time adding in the reified view of multiculturalism that characterises the contributions. Dominating the cover of the book is a photograph with two figures: in the foreground, in sharp focus, we see the head of a woman dressed in Islamic burqa, her eyes moving obliquely to our own; in the background stands a UK constable, his image blurred, his eyes appearing to bear down upon the woman. A protest sign to the left of the image suggests that the surveillance is occurring under contested conditions.

The image introduces to the text an element that otherwise receives scant mention; the reliance by law in this historical conjunction – in which, as Habermas indicates, the distance between multiculturalism and ‘war on terror’ all but dissolves – upon the operation of a form of policing that can keep socio-political diversity within the limits required for the smooth operation of a unitary Rule of Law. In my own country, as in other jurisdictions, the policing involved departs from that depicted on the book’s cover – that of uniformed ‘law and order’ policing – involving instead the covert practices of political policing. These practices, as criminologist Jean-Paul Brodeur indicates (1983), regularly exceed what the law permits, operating through a principle of political performativity that, to borrow words from Slavoj Žižek (2002, p.192), ‘defines its own conditions’ by retroactively producing the very ‘grounds which justify it.’ Where such policing practices fail to inaugurate those new grounds and illegalities within those practices result in criminal trial, prosecutions tend to succeed. The illegality of those practices does not, however, thwart their ongoing occurrence. This capacity to exist both within and outside the law appears imperative to a power that is burdened to re-create the conditions within which law can function.

The cover photo thus brings in a genre of difference which resists integration into the architecture of dialectical debate by which the text organises its knowledge production, the unruly performativity of political policing. Not only does that performativity disrupt the very notion of a transparent legal order, it has the ability to dislocate the cogency of the [*171] political philosophy which legitimates liberal order intellectually. The apparently increasing deployment of this power within legally constitutional societies emerges as a shadowy underside to both multiculturalism and law, an underside to which a contemporary text on politics could valuably attend in a more thorough-going manner than by way of a witness given to the fact by its cover-photo. Such a development to the volume would, however, undercut the analytic sufficiency of the knowledge production practices deployed at the level of the text as a whole. Productively, an interruption of this magnitude might have the ability to incite maturation in those practices such that they outgrow the political innocence characterising the text’s present formulation of the dialectic.

REFERENCES:
Brodeur, Jean-Paul. 1983. ‘High Policing and Low Policing: Remarks about the Policing of Political Activities.’ SOCIAL PROBLEMS 30 (5): 507-520

Jameson, Fredric. 1997. ‘Culture and Finance Capital.’ CRITICAL INQUIRY 24 (1): 246-65.

Žižek, Slavoj. 2002. FOR THEY KNOW NOT WHAT THEY DO: ENJOYMENT AS A POLITICAL FACTOR. London and New York: Verso.

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© Copyright 2009 by the author, Warwick Tie.

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SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS

by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson (eds). Lanham, Md: The Becket Fund for Religious Liberty and Rowman & Littlefield, 2008. 344pp. Cloth. $85.00. ISBN: 9780742563254. Paper. $34.95. ISBN: 9780742563261.

Reviewed by Emily R. Gill, Department of Political Science, Bradley University. Email: Gill [at] bradley.edu.

pp.162-166

This timely edited volume begins with a thought experiment. It assumes that civil marriage has become inclusive of same-sex couples and explores the impact of this change on religious freedom. Its seven chapters explore the types of emerging conflicts involving religious freedom and also speculate upon how such conflicts might be resolved. As Douglas Laycock notes in his afterword chapter, “This is a depressing book” from a civil libertarian perspective, because all of the other contributors, whatever their religious or political perspectives, “agree that same-sex marriage is a threat to religious liberty” (p.189). On the other hand, both religious belief and sexual orientation may be regarded as core constituents of personal identity. Therefore, it should not be surprising that the practice of one’s beliefs or sexual orientation would produce tension when living out one’s sexual identity conflicts with others’ living out their religious identities, and vice versa. The contributors’ detailed analyses of these conflicts are both instructive and provocative, and they should aid readers in thinking through these issues to draw their own conclusions.

Although Marc Stern believes that clergy will not be forced to perform marriages of which they disapprove, he foresees a host of other religious disputes. He fears that the widespread acceptance of same-sex marriage, plus civil rights laws that prohibit discrimination on the basis of sexual orientation, will compel religious institutions and individuals to treat same-sex couples as married even if this violates their beliefs (p.25), based on both actual and hypothetical examples. His exhaustive review encompasses religious settings, the workplace, public schools, commercial and professional licensing, public funding for charities, and any part of the public square that may be affected by efforts to banish anti-gay religious messages. Exemptions for religious institutions or individuals from civil rights laws are likely to founder on the conviction that “the search for exemptions is a back-door effort to undermine equality rights generally” (p.28). Stern concludes that only the most insular groups or those strictest in their assertion of religious or ethical norms will be successful in avoiding state coercion. The recognition of same-sex marriage “would represent the triumph of an egalitarian-based ethic over a faith-based one,” and he predicts that advocates of sexual tolerance will not tolerate the “different ethical vision” represented by religion (p.57). [*163]

Although Jonathan Turley does not oppose same-sex marriage, he opposes any effort by the government to use tax exemptions or access to charity funds to discriminate against groups because of their religious views opposed to same-sex marriage. He believes that “the government has abandoned a neutral position in its dealings with political or religious groups in favor of enforcing nondiscrimination policies” (p.60). A strict neutrality principle would focus on the status of organizations as expressive of fundamental commitments concerning faith and/or morals, rather than on the substance of their practices, in awarding tax exemptions or access to charitable funds. Otherwise, denial of these benefits amounts to “a content-based punishment for religious views” (p.61). Free speech, the free exercise of religion, and the right to expressive association central to a pluralistic society must be protected if organizations such as the Boy Scouts are not eventually to be forced to conform to majoritarian views (pp.61, 69, 74-75).

Robin Fretwell Wilson seeks to draw lessons for religious freedom from the healthcare context. Once decisions such as GRISWOLD v. CONNECTICUT and ROE v. WADE transformed “noninterference rights into affirmative entitlements to another’s assistance” (p.79), healthcare conscience clauses were developed to protect both institutions and healthcare providers from being forced to participate in the provision of controversial services such as abortions or emergency contraceptives. Parallels with institutions and individuals who balk at supporting or facilitating same-sex marriage unions are clear. For Wilson, “The operative question is whether . . . a refusal would erect a significant barrier to a couple’s ability to obtain and enjoy all the privileges and benefits of marriage” (pp.98-99). Just as pharmacies in Illinois that do not carry emergency contraceptives must post signs directing patients to other pharmacies that carry them, county clerks’ offices might keep lists of those who are or are not willing to provide marriage licenses or solemnize marriages. This solution is imperfect, Wilson admits: remote locations may have only one clerk, or all clerks in an office may have objections. Refusals to solemnize a marriage here would amount to denial of an entitlement by the state itself, and the state might require a hardship exception to conscientious objection (pp.99-100). Overall, however, Wilson offers possible solutions to some of the conflicts that might arise.

Douglas Kmiec believes that religious organizations would not be constitutionally protected from performing same-sex marriages under the free exercise clause if antidiscrimination laws forbade all nonprofits, religious or not, from discriminating on the basis of sexual orientation. Statutorily, however, he argues that the Religious Freedom Restoration Act “should require the federal government to justify any withdrawal of a federal tax exemption that substantially burdens religious belief or practice” (p.105). Nonprofit institutions serve a public purpose and provide a public benefit. BOB JONES UNIVERSITY v. UNITED STATES is not a precedent for forcing religious organizations to recognize same-sex marriages on pain of losing their tax exemptions, Kmiec argues, because this case recognized “a common law public [*164] policy against racial discrimination in education” (p.110) that does not apply to sexual orientation. More important, “tax exemptions are not subsidies,” but only a recognition that charitable organizations do not collect taxable income. Government should allow tax exemptions to charitable organizations to which it might legitimately deny direct public funding. Although “government may not condition benefits on the relinquishment of constitutional rights” to speech, association, and religion (p.118), “it should not be surprising that the government gets to decide how to spend its own resources” (p.111). As I have argued, faith-based or morals-based organizations possess no constitutional right to direct public funding. If they are to receive it, conditions may be attached (Gill 2004).

Chai Feldblum’s essay is in some ways the most interesting in this collection. On the one hand, she argues that, when the government enacts antidiscrimination laws based on sexual orientation, it is not saying that same-sex relationships are either bad or good. Therefore its stance is one of moral neutrality, despite the implication that these relationships are not so problematic as to justify private discrimination in the public domain. Correspondingly, failure to prohibit discrimination or to allow same-sex marriage is not neutral, because this signals that same-sex relationships are “not morally neutral, but rather may legitimately be viewed by some as morally problematic” (p.132). On the other hand, Feldblum sympathizes with religious individuals who would argue that one cannot separate faith and practice by holding discriminatory views but refraining from acting on them, just as gay persons cannot be expected to separate sexual orientation and sexual activity. To her, it appears “the height of disingenuousness, absurdity, and indeed, disrespect to tell someone it is permissible to ‘be’ gay, but not permissible to engage in gay sex. What do they think being gay means?” (p.143). For this reason, gay people should “recognize the injustice of forcing a person to disaggregate belief or identity from practice” (p.142). Moreover, she would take individuals at their word when they allege that a burden on their belief liberty, which encompasses both religious and other moral beliefs, exists. Nevertheless, she concludes that when identity liberty based on sexual orientation conflicts with belief liberty, in a great majority of cases equality concerning sexual orientation reflects the public good and should therefore win out in these conflicts. Although neutrality is more elusive than she at first suggests, her equation of sexual orientation and religious or ethical belief is provocative.

Charles Reid provides a historical context as background for arguing that separating religious and civil marriage is ultimately unworkable. As a confluence of religious belief, marital union, and state authority, the legal categories of civil marriage “were shaped fundamentally by Christian theological insight” (p.159) and transcend the idea that the continuing consent of parties to a marriage is the ultimate value. Judicial decisions of the nineteenth and early-to-mid-twentieth centuries used religious terminology and “favored the fundamental values of procreation, permanence, and fidelity precisely because of ecclesiastical antecedents” (p.168; see also pp.162, 176). Far from [*165] being created by the state, marriage’s existence predates the state. In Reid’s view, contemporary social crises stem in part from the “effort to reduce marriage from a sacred enterprise, blessed and sanctioned and sustained by communal ritual, into something much more mundane, even banal” (p.179).

Finally, although Douglas Laycock agrees more substantially with Robin Wilson’s measured protections for both religious and sexual freedom than with either Feldblum’s or Reid’s proposed solutions, like Feldblum he perceives similarities in the dilemmas faced by religious and sexual minorities. Both “claim that some aspects of human identity are so fundamental that they should be left to each individual, free of all nonessential regulation, even when manifested in conduct” (p.189). Unfortunately, while religious conservatives point out that sexual liberty is nowhere in the Constitution, gay rights advocates recognize that the free exercise of religion is protected but “construe that protection down to the vanishing point” (p.190). Laycock, unlike Reid, argues that conflict would be reduced if religious and civil marriage were separated in the law. When conservatives argue that marriage is sacred and that same-sex marriage threatens its sanctity, they are using religious terms to defend a civil institution that no longer enforces the sexual morality central to religious understandings of marriage. Ideally, Laycock argues, “marriage” would apply only to religious unions, performed by clergy, while “civil unions,” performed by civil servants, would describe the legal unions contracted by both same-sex and opposite-sex couples. Couples could enter either or both of these statuses. Overall, he concludes, it would be a step forward to disabuse people of the idea that “the ‘sanctity’ of marriage depends on law, not faith” (p.207).

Even if they do not all say so explicitly, the contributors to this book at least imply that both gay rights activists and religious [*166] believers desire not only space for their identities or beliefs, but also the freedom to engage in practices that flow from these identities or beliefs. Contemplating different meanings of neutrality may prove useful in thinking about ways to approach anticipated conflicts. Stephen Monsma distinguishes between two kinds of neutrality. Formal neutrality means that the government should not use religion as a basis for conferring particular benefits or for withholding generally available benefits. Although by prohibiting special liabilities, formal neutrality allows for greater cooperation of government with religion than strict separation does, it can also weaken free exercise protections by prohibiting special benefits or exemptions (Monsma 2002, 265-266). Substantive or positive neutrality, by contrast, requires attention not only to the intentions behind a law or public policy, but also to its consequences. If a generally applicable law “makes it harder for a person of devout faith to follow the tenets of his or her faith, that person’s free exercise of religion has been hindered,” even if no such intent exists (p.266).

Although positive neutrality is supposed to promote the free exercise of religion, the same arguments may be deployed to justify the “free exercise” of one’s sexual orientation, which is a core constituent of personal identity analogous, in my view, to religious belief. Both antidiscrimination laws based on sexual orientation and the recognition of same-sex marriage should then be accommodated under a regime of positive neutrality absent a compelling state interest in refusing to do so. These considerations appear to ratchet up the conflict between religious and sexual freedom. On the other hand, I agree with Laycock that a legal separation between religious and civil marriage is perhaps best calculated to give both sexual orientation and religion their due and to maximize a positive neutrality that might protect both. Whatever a reader’s personal opinion, however, the essays in this book promote thoughtfulness in assessing these competing claims.

REFERENCES:
Gill, Emily R. 2004. “Religions Organizations, Charitable Choice, and the Limits of Freedom of Conscience.” PERSPECTIVES ON POLITICS 2 (4): 741-755.

Monsma, Stephen V. 2002. “Concluding Observations.” In CHURCH-STATE RELATIONS IN CRISIS: DEBATING NEUTRALITY. Stephen V. Monsma (ed). Lanham, MD: Rowman & Littlefield, 261-271.

CASE REFERENCES:
BOB JONES UNIVERSITY v. UNITED STATES, 461 U.S. 574 (1983).

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

ROE v. WADE, 410 U.S. 113 (1973).

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© Copyright 2009 by the author, Emily R. Gill.

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PHILADELPHIA FREEDOM: MEMOIR OF A CIVIL RIGHTS LAWYER

by David Kairys. Ann Arbor, MI: University of Michigan Press, 2008. 442pp. Cloth. $70.00. ISBN: 9780472116386. Paper. $24.95. ISBN: 9780472033102.

Reviewed by Patrick Schmidt and Cali Cope-Kasten, Department of Political Science, Macalester College. Email: schmidtp [at] macalester.edu and ccopekas [at] macalester.edu.

pp.158-161

It is rare in law to find an author who transcends genres, and much rarer in the same book. David Kairys – known by many readers of this review for his work for academic audiences, if only for the major THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE – certainly possesses enough war stories from over two decades of active public interest legal work to justify a memoir.

What kind of book should it be? Revealingly, each of the blurbs on the cover hint at different genres. Given his passion and his wide-ranging experience in the field, Kairys has the platform for what Steve Lopez (Los Angeles Times columnist) terms “a prayer for social justice and a call to conscience” – perhaps even a legal manifesto. With that experience, if taken as participant observation research, Kairys also has the material for a powerful academic-styled account on the possibilities and limits of progressive legal advocacy. Perhaps that is what U.S. District Judge John E. Jones III aimed at with his vapid remark that Kairys’ “compelling book properly explains the vital role that civil rights attorneys play in our system of justice.” It helps that Kairys’ fight for justice occurs in one of the more corrupt – hence interesting – cities in America, allowing his memoir to serve as a legitimate contribution to the historical record. William Marimow (editor of the Philadelphia Inquirer) accordingly praises the “spellbinding tale” of “how [Kairys] helped make history in the city of brotherly love.” Martha Minow, too, recommends the book to “anyone interested in American social history,” but in noting how the memoir “reads like a suspense novel,” she makes a nod to Kairys’ eye for yet another genre, that of legal thriller, with the hallmark elements of a powerful and sometimes evil politico-legal system, and a crusading lawyer whose work enmeshes him in the lives of his clients. In the end, perhaps Cornel West’s extravagant praise for “this marvelous book . . . Kairys’ gift to us” best captures the sense that many will find value in reading PHILADELPHIA FREEDOM: MEMOIR OF A CIVIL RIGHTS LAWYER, even if one does not quite know for what purpose to read it.

PHILADELPHIA FREEDOM is a memoir, not a mechanical autobiography, so it comes as only a mild shock when Kairys hits the ground running – or more precisely, driving – in the midst of what he hails as the most important case of the book, one that is not actually tried until Part II. A cloak-and-dagger meeting under a Philadelphia bridge, with every eye on the lookout for FBI agents, Kairys’ choice for a brief introductory chapter declares his intention to speed readers along at the [*159] pace of crime fiction. Rich descriptions of Philadelphia neighborhoods, the recurring backdrop for his cases, make their debut in the first two sentences when Kairys begins with shades of Bulwer-Lytton that, “It was an overcast evening in late February 1972, and mist rose above the Delaware River as I crossed the Ben Franklin Bridge, the ornate suspension bridge between downtown Philadelphia and Camden, New Jersey. As I slowed for the tollbooth on the Camden side, I could see the waterfront and the idle Campbell’s Soup factories” (p.1). Witty and exciting, the introduction makes good use of its four pages to draw these readers into the three parts of the book that lay beyond.

Kairys does return to his legal beginnings – Day 1 in his first legal job – in Part I, recounting his early days as a trial lawyer in the local public defender’s office. Somewhere between his musings on the angle of a legal pad sitting on his desk, and the rookie’s bold challenges to the standard operating procedures for public defenders in city courtrooms, Kairys begins to find his authentic voice. The world of 1960s justice provides a compelling setting for a young lawyer ready for a cause, and he soon finds one, resulting in a marvelous tale about his first against-the-odds victory fighting a problematic extradition to Georgia of an African-American resident of Philadelphia. Kairys never looks back, and the grand stage for this Philadelphia lawyer is all the more interesting because it is populated with distinctive characters like a young DA, Arlen Specter, and an even younger Assistant District Attorney, Ed Rendell, blazing their respective paths to become U.S. Senator and Pennsylvania governor. In exceptionally clear prose, and with a light touch for legal vocabulary that makes the criminal process approachable to any student, Kairys graduates from interviews to bail hearings, to preliminary hearings and pretrial motions, until Part I ends with his move into private practice.

Though each part of the book can be read for enjoyment and interest, Part I must be regarded as one of the most engaging and useful anecdotal introductions to the criminal process available for students. The coverage of actual case material is too sparse for very close legal study and the reflections on the legal system’s weaknesses are perhaps too specific to interest the wider public, but Kairys finds the balance in his keen display of creativity and strategic acumen that brought changes to the machinery of urban justice. The ebullient successes of these first 136 pages are balanced with reflection on his prejudices and commitments to the legal status quo. He supplies spare autobiographical background on a need-to-know basis, such as when he battles to understand his interactions with the black community in the late 1960s from his personal background. The basic plot of confidence versus self-doubt – the worries that he “might not live up to . . . expectations” (p.21) – might be too clichéd without the compelling critical perspective that Kairys’ lends to the young “do good” lawyer of his youth. Naturally, writing a memoir in retrospect, one would expect Kairys to speak with a unified voice, to show that from his start in the field to his finish in academe – a law professor at Temple University – he has been his own man, as unabashedly critical as necessary. But there is complexity in that portrait, [*160] particularly of a strategic nature, such as when he observes how “a satisfying moral stance” (p.89) threatened a loss in effectiveness within the organizational imperatives of urban courts, so well described by social scientists. There are numerous other targets of his criticism, including the organizational imperatives of the public defender’s office, and his colleagues in the law (such as his distaste for “lawyer banter” p.31). The clear depictions of trial preparation and proceedings, combined with his raw descriptions of the life and work of a young lawyer, would be excellent for undergraduate use in the study of criminal justice and for anyone considering a calling to the legal profession.

Those looking for the bigger fish in this memoir will look ahead to Part II, as we find a more confident and experienced Kairys who has begun to find his place in the world in the 1970s. It is here that the system’s challenges loom much larger and the villainy extends deeper. Chapter Five, the first chapter in Part II, chronicles a case in which Kairys represents two Philadelphia firemen against the Philadelphia police. Now in the ascent to the peak of his career as a practitioner, Kairys is trying bigger cases than ever, including ultimately the famous case of the Camden 28 opponents of the Vietnam War and the draft. Chapter-to-chapter, these successes bring him further afield, including geographically, and have him facing new injustices in new venues.

Unfortunately, two criticisms of Part II emerge. First, the storyline of the book loses the coherence that animated Part I, as the proximity of these cases to the height of Kairys’ career may be the most the chapters have in common. As a civil rights attorney with growing fame but still happy for the work, Kairys wins some important and recognizable cases with an interesting range of legal issues. The sympathetic reader will note that abuses of the Presidential war-making power, police brutality, and governmental corruption do not seem at all out of vogue thirty years later, so it is easy to begin each chapter. The lack of continuity between these chapters may, upon a deeper reading, suggest something of the challenges facing the public interest attorney: too many targets, perhaps an inability to define an overarching strategy, or even the absence of a definition for “success” in the war if not the battles.

A second criticism that emerges out of Part II is a lack of context for the battles he does recount, with memoir proving the weaker cousin of biography. As much as he has endeavored to piece together the records of his practice, the easiest things to bring to light are his present views and, by definition, his strongest memories of the trials. Kairys’ account of the Camden 28 trial, in particular, supplements the portrait one can find elsewhere, but here more than anywhere the reader may want him to frame the soaring rhetoric of his closing arguments with a wider social and political history of his advocacy. The case, which continues to attract interest today, receives parity of treatment to the cases in other chapters, where it might have been given much more. (On a more minor note in this chapter, it was Andrew Hamilton, not Alexander, who set the stage for modern jury nullification with the closing arguments in the 1735 trial of John Peter Zenger.) The reader need not take Kairys entirely [*161] on trust. For Chapter Eight, in which Kairys reaches the U.S. Supreme Court as counsel for Dr. Benjamin Spock (GREER v. SPOCK, 1976), the diligent reader can easily assess Kairys’ effectiveness as an advocate by delving into the transcript and audio recording of the oral arguments from the internet.

Part III continues what is constant throughout: his eloquence and verve as a writer. Rarely will a reader find a legal memoir beginning a story, as Kairys does in the first chapter of this part, with a line like “I could smell pot smoke wafting out of the kitchen, and I remember feeling particularly relaxed and content that evening,” as he describes receiving a phone call that brought him a suit against the CIA (p.265). Having earned a substantial reputation as a first-rate civil rights attorney, by Part III of his narrative Kairys possesses substantial discretion over case selection, leading to some focus on the particular interests of his later career but also showing the idiosyncratic nature of his practice. Nevertheless, the entire book provides a unique look at the behind-the-scenes politics of law, and Part III offers some of the best examples of it. The power of Coca-Cola, the strategies of the Philadelphia Electric Company, the manipulation of facts and legal loopholes in gun violence and manufacturing, and a crack in the mysterious wall around CIA practices are glimpses into the legal trade unparalleled by most accounts of the legal profession. The cases themselves are consistently unusual, and the book never regains the unified narrative that it has in Part I, but the final part has the substance on the issues, such as nuclear power and gun safety, to give the kind of context lacking in the middle section.

Overall, PHILADELPHIA FREEDOM proves an engaging and well-written tour through a stream of fascinating cases, from a legal career that displays both variety and significance. Though he continues some involvement in litigation, Kairys stops the memoir somewhat abruptly at his entry into an academic career in 1990. Kairys brings the reader up to the present day in a matter of a few paragraphs, though in that light the Epilogue he provides – a brief autobiography and attempt to assess the significance of his work – seems oddly out of place. That effort may be beside the point: the lasting significance he can hope for from this memoir is what others take from his passion and his experiences. It is unfortunate that, running almost four hundred pages, Kairys’ window into the world of a progressive lawyer may be too much for classroom use. Perhaps he might have recalled Elton John’s lyrics in the song with the same title as this book: “the less I say the more my work gets done.” Yet, despite the criticisms of this review, Kairys has accomplished in PHILADELPHIA FREEDOM what few people (and even fewer law professors) can: he has written of things he has done about which it is worth reading.

REFERENCES:
Kairys, David, ed. 1998. THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (3d ed.). New York, NY: Basic Books.

CASE CITED:
GREER v. SPOCK, 424 U.S. 828 (1976).

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© Copyright 2009 by the authors, Patrick Schmidt and Cali Cope-Kasten.

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BUILDING THE INTERNATIONAL CRIMINAL COURT

by Benjamin N. Schiff. New York: Cambridge University Press, 2008. 320pp. Hardback. $85.00/£48.00. ISBN: 9780521873123. Paperback. $25.99/£18.99. ISBN: 9780521694728. eBook format. $21.00. ISBN: 9780511402128.

Reviewed by Denise DeGarmo, Department of Political Science, Southern Illinois University Edwardsville. Email: ddegarm [at] siue.edu.

pp.155-157

In his book, BUILDING THE INTERNATIONAL CRIMINAL COURT, Benjamin Schiff provides one of the most detailed studies of the International Criminal Court written to date. Schiff not only traces the development of the Court, he further examines the interplay between historical context, legal norms and state compromises that have created the multiple challenges the Court faces today.

The book consists of an introduction and eight chapters. In the introduction, Schiff sets the stage for his analysis. Rather than mere description, Schiff employs the use of international relations and international organization theories in his analysis of the International Criminal Court. Specifically, he combines neorealist, neoliberalist and constructivist lenses to examine different aspects of the court and its workings. Schiff uses constructivism to shed light on the development of consensus upon which the Court is based. Realism is used to explain a state’s compulsion to protect its sovereignty and seek advantage, while liberal institutionalism is used to analyze how the International Criminal Court embodies states’ cooperative efforts to improve the “absolute welfare” of states. The remaining chapters explore the historical contexts in which the court emerged, the contributions of the ad hoc tribunals for Rwanda and former Yugoslavia to the construction of the International Criminal Court, and the challenges the Court faces as it moves forward in the twenty-first century.

It took several decades for the idea of a permanent international criminal court to find its way onto the agenda of the international community. The United Nations recognized the need for the establishment of international rule of law and the International Criminal Court following the Nuremberg and Tokyo Tribunals in 1948. In the early part of the 1950s, the General Assembly of the United Nations requested that the International Law Commission draft statutes to establish a permanent international criminal court. However, Cold War tensions between the east and west made the construction of such a court politically infeasible.

The idea of an international criminal court reemerged in 1989 when the Prime Minister of Trinidad and Tobago proposed the creation of an international court to deal with the illegal drug trade. While a draft statute for such a court was being negotiated, ad hoc tribunals were established to try war crimes in Rwanda and the former Yugoslavia. These ad hoc courts further highlighted the need for an international court system. [*156]

The General Assembly of the United Nations convened a conference in Rome in June of 1997 with the aim of finalizing a treaty for the creation of an international court. In 1998, the Rome Statute for the International Criminal Court was opened for signature. The Statute was adopted overwhelmingly. One hundred and twenty states voted for the treaty; seven states voted against the treaty, and twenty-one states abstained. The countries that voted against the Statute were China, Iraq, Israel, Libya, Qatar, Yemen and the United States. The Rome Statute became a binding treaty in April 2002. The Statute legally came into force in July 2002, and the Court can only prosecute crimes that occurred after this date. As of January 2009, there are 108 members of the International Criminal Court. Forty states have signed but not ratified the treaty, and in 2002, the United States and Israel “unsigned” the Rome Statute. This action was taken as neither state has any intentions of becoming parties to the treaty nor do they admit having legal obligations arising from their earlier signature.

The International Criminal Court consists of three “organs.” There is the Presidency and Chambers, the Office of the Prosecutor, and the Registry. Within the Rome Statute one can find the procedures upon which the Court functions. The Court can investigate cases, issue warrants, and take suspects into custody. Furthermore, it can carry out trials and protect victims and witnesses of crimes that fall under the Court’s jurisdiction. The legislative organ of the International Criminal Court is the Assembly of State Parties to the Treaty. The Assembly is charged with the election and removal of the Court’s judges and prosecutors. They must also approve the budget for the Court as well as adopt the International Criminal Court’s Rules of Procedure and Evidence.

The purpose of the International Criminal Court is to prosecute the perpetrators of war crimes, crimes against humanity and/or genocide. Not only does the court act to punish perpetrators of the aforementioned actions, it serves as a deterrent for those who might consider implementing these types of behaviors in the future. The Court can exercise jurisdiction only in cases where: 1) the accused is a national of a state that is party to the treaty; 2) the alleged crime took place within a state that is a party to the treaty; and/or, 3) the alleged crime is referred to the Court by the United Nations Security Council. Furthermore, the Court can only exercise its jurisdiction when the state court is unwilling or unable to investigate and prosecute such crimes. At this time, the International Criminal Court has launched investigations into Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur.

The success of the Court rests upon its ability to deter criminal acts or influence states to enforce international human rights. If the Court fails in this regard, then it may be deemed useless by both perpetrators and victims alike. Furthermore, the international nature of the court makes it less likely to achieve success. First there is a lack of legislative structure associated with the court. Secondly, the court imposes upon the sovereignty of states. If states are not willing to cede their sovereignty to the court, there is little the court can do given that it also lacks tools for [*157] implementation of rulings. Furthermore, the international criminal court is subjected to outside influences, bias and poor administration. Schiff also draws attention to the fact that many of the challenges the court faces arise because the International Criminal Court is a treaty-based organization that encompasses a broad and diverse membership with a wide mandate. The challenges include: 1) Judicial-Political challenges; 2) Structural-Administrative dilemmas; 3) the Broad Mandate Dilemma; 4) Civil- and Common-Law Heritage; and, 5) Peace versus Justice Dilemma.

While the literature has many examinations of the sources, structure and implications of the Rome Statute, the International Criminal Court has not been extensively analyzed because of its relatively short lifespan. Of the examinations of the Court that have been conducted, BUILDING THE INTERNATIONAL CRIMINAL COURT is the most insightful, comprehensive and conscientious study of the International Criminal Court to date. Schiff blends history, jurisprudence and political science to provide a clear analysis of this relatively new international organization. The use of international relations and international organization theories is an added bonus and further legitimizes the analysis within the field of International Relations.

The clear and precise language used in this book makes it a perfect text for undergraduate and graduate courses in international law and human rights. The book provides the framework against which future studies of the Court will be conducted. BUILDING THE INTERNATIONAL CRIMINAL COURT will remain an important historical and political document for years to come. The book is an invaluable tool for scholars and practitioners of international law.

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© Copyright 2009 by the author, Denise DeGarmo.

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UNEQUAL UNDER LAW: RACE IN THE WAR ON DRUGS

by Doris Marie Provine. Chicago: University of Chicago Press, 2007. 193pp. Cloth. $45.00. ISBN: 9780226684604. Paper. $18.00. ISBN: 9780226684628.

Reviewed by Charles R. Epp, Department of Public Administration, University of Kansas. Email: chuckepp [at] ku.edu.

pp.151-154

Although it is widely known that the United States has experienced a “prison boom” (Western 2006) with dramatically harsher effects on African Americans than whites, no one has analyzed the racialized sources and implications of these disparities so deeply, subtly, and persuasively as Marie Provine in this thoughtful study.

Provine’s thesis is that American criminal justice policy on drugs is racially-framed at its core, resulting in a “war on drugs” that especially targets and imprisons African Americans. Provine argues that this bias, however, is institutional rather than intentional, complicating any attempt to correct the problem. Thus, Provine observes that, while punitive policies toward illegal drugs have targeted racial minorities and this bias follows deep historical patterns, efforts to correct it have been undermined by arguments that it is not intentional and therefore is perfectly acceptable. Provine builds a powerful case for her thesis by marshalling evidence from the consistent historical pattern of targeting racial minorities in America’s past and current wars on drugs; from the pervasive racial disparities in the effects of wars on drugs; and, especially, from the widespread resistance of elected officials and appellate judges to address these disparities with policy reforms.

The book’s Introduction, Chapter 1, and a brief Epilogue clearly frame the above thesis. In these chapters Provine draws on a wide array of historical and social scientific literature, relying especially on recent work in the areas of American Political Development and social psychology. From the former area she draws the idea that institutions are both accretions of past ideological forces and the generators of continued biases in keeping with those ideological structures. Thus, following Paul Frymer’s (2005) influential observation, she observes that in the area of criminal policy, “institutions provide incentives that make racism rational” by predisposing elected officials and ordinary citizens alike to see racial minorities as sources of drug abuse and drug-related crime (p.10). From social psychology, Provine draws the observation that implicit negative racial stereotypes contribute to widespread perceptions that racial minorities represent a greater threat to order than do whites (pp.156-58). Relying on these insights, Provine argues that American criminal policy toward drugs has institutionalized the implicit expectation that drugs and drug-related crime are greater threats when associated with racial minorities and that it is necessary to respond to these threats with heavy criminal punishment. Finally, in order to address the problem, she observes that “negative stereotypes must be actively [*152] resisted to be avoided” and that only deliberate policy will reverse well-institutionalized racially-discriminatory patterns (p.158).

In Chapters 2 and 3, Provine turns to her historical evidence, demonstrating that punitive crusades against drugs historically have targeted racial minorities by portraying them as especially prone to abusing alcohol and other drugs and as morally corrupt threats to responsible white Americans. Provine’s history, although based largely on other studies, draws together the evidence in support of this thesis in a synthesis found nowhere else. Although most readers are likely to know generally of the moral crusades against alcohol, opium, and marijuana in American history, for instance, few are likely to know how thoroughly racialized were these campaigns. Thus, Prohibition in the South contributed directly to black disenfranchisement as its supporters relied heavily on images of drunken black men, fueling efforts not only to ban alcohol but also to restrict access to the ballot (pp.38, 52-58).

In Chapter 4, Provine analyzes the development of federal policy on crack cocaine in the 1980s, showing that members of Congress and law enforcement officials alike acted on racialized assumptions. As in earlier anti-drug crusades, they assumed that most crack users were racial minorities, that the drug represented an irresistible enticement and could not be shaken once tried, that the scourge was threatening to spread from black ghettoes to the white middle class, and that only extremely harsh punishment could discourage the hardened minority criminals who sold and used the drug. Although available evidence at the time discredited these assumptions, the country was seized by a “moral panic,” and Congress rushed into law a bill with draconian punishment even for carrying exceedingly small amounts of crack cocaine, resulting in the notorious “crack-powder” sentencing disparity of 100-1 (pp.107-115). Although Provine identifies some culprits in this story (namely Reagan administration officials and conservative members of Congress), she emphasizes that the racially-framed assumptions behind the disparity were widely held and that even many members of the Congressional Black Caucus supported the measure. Her target here, as in the study as a whole, is institutionalized bias, not intentional racism.

Provine examines the tragic racial impact of the crack policy in Chapter 5, with a particular focus on how federal officials responded to growing evidence of this impact. While whites have always represented a majority of crack-cocaine users, the rate at which African-Americans were incarcerated in federal prison more than tripled from 1980 to 1999, while the disparity between whites’ and blacks’ prison sentences for drug crimes increased dramatically from 6% in the mid-1980s to 93% in the late 1990s (p.127), largely as a result of enforcement targeted at black crack users and dealers. Under pressure from civil rights groups and social scientists, the Federal Sentencing Commission recommended a sharp reduction in the crack/powder sentencing disparity, and, under the existing law, this reduction was to take effect unless overridden by an act of Congress, signed by the President. The majority in Congress, however, led by members incensed by the claim that such disparities [*153] represented racism (they asserted no “intent” to discriminate) voted overwhelmingly to override the Commission’s recommendation, and President Clinton signed the legislation, thereby affirming the policy.

Provine examines the judicial response in Chapter 6, showing that while some federal trial judges objected to the gross injustices imposed by the sentencing guidelines (some going as far as to rule them unconstitutional), many adopted a position like that of federal judges in the early 19th century who were asked to enforce the fugitive slave law: they passed the buck, seeking to absolve themselves of responsibility. Worse, appellate judges, those theoretically with the power to affirm the few trial-court decisions challenging the policy, consistently held that, since the effects of the policy were not frankly and deliberately intended to be racist, the policy producing them was perfectly constitutional.

Provine’s synthesis, while largely drawing on existing research, is original and powerful. It offers the clearest observation yet of a fundamental problem whose contours are increasingly marked out in large bodies of research in several disciplines: while American law and policy admirably (and largely successfully) prohibit intentional racial discrimination, the problem is no longer intentional bias but rather deep racial disparities – in jobs, education, healthcare, imprisonment, traffic stops – that grow from systematic tilts in our policies and administrative processes. The situation is doubly tragic for, as Provine poignantly observes, the American commitment to stamping out intentional bias “constrains debate about racial justice” by inviting “angry denials of racist intentions” and thereby allowing officials to avoid responsibility for unintended but deep and systematic racial injustices (p.138). Such disparities, she observes, can be addressed only with deliberately crafted policy aimed at reversing the systematic biases in our policies.

My only quibble is that it the book does not fully address why the long-standing racial biases in American drug policy have resulted in an imprisonment boom characterized by gross racial disparities only in the period after about 1980. For an answer to that question, readers will have to turn to other books, notably Tonry’s analysis (1995; 2004) of politically conservative alternatives to social-welfare policies, and Gottschalk’s analysis (2006) of how weak state capacity in the area of social welfare channeled moral panics over drugs after the 1970s into criminalization and a prison-building boom. By the same token, however, neither of these powerful analyses helps us to understand so clearly, as does Provine’s, why the imprisonment boom has been racially-biased at its core.

UNEQUAL UNDER LAW is a very well-crafted policy analysis and an elegantly written teaching tool. Students and scholars at all levels are likely to find the book accessible and thought-provoking. It is a model of normatively-driven, theoretically-framed research.

REFERENCES:

Frymer, Paul. 2005. “Racism Revised: Courts, Labor Law, and the Institutional Construction of Racial Animus.” 99 AMERICAN POLITICAL SCIENCE REVIEW 373-87. [*154]

Gottschalk, Marie. 2006. THE PRISON AND THE GALLOWS: THE POLITICS OF MASS INCARCERATION IN AMERICA. New York: Cambridge University Press.

Tonry, Michael. 2004. THINKING ABOUT CRIME: SENSE AND SENSIBILITY IN AMERICAN PENAL CULTURE. New York: Oxford University Press.

Tonry, Michael. 1995. MALIGN NEGLECT: RACE, CRIME AND PUNISHMENT IN AMERICA. New York: Oxford University Press.

Western, Bruce. 2006. PUNISHMENT AND INEQUALITY IN AMERICA. New York: Russell Sage Foundation.

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© Copyright 2009 by the author, Charles R. Epp.

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THE COMMON LAW IN COLONIAL AMERICA: VOLUME I: THE CHESAPEAKE AND NEW ENGLAND, 1607-1660

by William E. Nelson. New York: Oxford University Press, 2008. 216pp. Hardback. $35.00/£18.99. ISBN: 9780195327281.

Reviewed by George W. Liebmann, Liebmann and Shively, P.A. of Baltimore and Visting Fellow of Wolfson College, Cambridge. Email: george.liebmann2 [at] verizon.net.

pp.148-150

This slender volume by an outstanding scholar of colonial law sheds much light on continuing differences in legal and political culture among states on the Atlantic seaboard. It begins with the conventional premise that “Virginia was founded primarily for economic profit; New England, primarily to create a religious utopia; and Maryland, primarily to provide a haven for persecuted Roman Catholics.” As a result, Virginia law began as a body of coercive statutes (Dale’s Laws of 1611), replaced by a new codification 1n 1650 designed to enforce and extract labor; New England law was founded on views resembling the Protestant approach to the Bible, in which pre-existing English texts were of limited importance; while the Catholic minority in Maryland consciously adopted English common law to provide a fixed standard to shield a religious minority from future majority oppression. Virginia ultimately turned toward the English common law to provide assurance to providers of capital and because the colony could no longer be governed on a military command system.

Virginia was colonized by single male immigrants, many from the lowest rungs of society inhabiting widely dispersed homesteads; the New England colonies were settled by family groups required to live in towns in proximity to their church. The New England colonies resorted to statutory codifications to provide certainty. Virginia substantive law centered on debt collection; New England law, on community self development. The New England codifications tended to omit contract law, as in the Massachusetts codification of 1648; juries were relied on to curb the arbitrariness of magistrates. The master servant law of Virginia was far more severe than that of New England.

The Maryland Act of Religious Toleration of 1648 was designed to safeguard minorities; it was set aside during a period of later Puritan rule. The jury attained great importance in Maryland. In Maryland, the common law was adopted by statute no later than 1639. The tobacco economy caused Maryland master servant and debtor creditor law to evolve in the direction of Virginia’s laws, although by the time of the Civil War, 50% of Maryland’s blacks, but only 20% of Virginia’s had been freed. As Nelson notes, these origins “gave the law of those regions distinctive characteristics that would persist for years to come.”

Maryland is still in many ways a common law state; despite attempts in the 1870s and again in the 1970s, it has [*149] never adopted a codified criminal law, and a 1904 treatise (Hochheimer 1904) is still in use in many Maryland prosecutors’ offices, although there have been partial codifications, as with the law of theft. This sometimes produces amusing results; a pair of Maryland cases in the 1960s applied, with the benefit of much learning, the principle that a church, as ‘the dwelling house of God’ was within the common law definition of burglary, “breaking and entering a dwelling house in the night time with intent to commit a felony (MCGRAW v. STATE, 1964; DORTCH v. STATE, 1967).

Maryland lawyers until about thirty years ago had in their offices two thick volumes (Alexander 1912) which contained the pre-revolutionary British statutes found to have met the standard still embodied in Article V of the Declaration of Rights in Maryland’s still extant 1867 Constitution: “the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy six; and which, by experience, have been found applicable to their local and other circumstances.” As recently as 1966, the reviewer litigated a substantial landlord tenant case turning on interpretation of two seventeenth century English statutes. Chapter 12 of the Maryland Acts of 1974, enacted by section 14 115 of the Real Property Article, lists no fewer than 80 English statutes declared to be no longer applicable in light of the 1974 codification of Maryland real property law, the earliest of them being 9 Henry III, Ch.7 (1225).

Maryland also retains a considerable attachment to the jury system, and has preserved twelve member unanimous verdicts in criminal cases. Its Constitution contains a provision (Article 23 of the Declaration of Rights) making the jury judge of the law as well as the facts in criminal cases, the effect of which has been curtailed by judicial decision but not by amendment, a pity in light of current abuses of drug possession laws.

Virginia, by contrast, has a dizzying variety of jury statutes, some allowing majority verdicts and some allowing juries as small as five members (59 F.R.D.180, 1972).

Mr. Jefferson, although a Virginian, saw to it that the New England township system, complete with its reservations of land for schools and churches, rather than the large counties of Maryland and Virginia, provided the basis for local government in the Northwest Territory, an enormous service to both local government and public education in the upper Midwest, the suburban and rural areas of which are not afflicted with the huge bureaucratic school systems characteristic of Maryland and Virginia.

The Catholic/Protestant condominium resulting from the Maryland Statute of Religious Toleration also had a long and peculiar life. In 1915, when it was proposed to erect a statue commemorating the enactment, including figures of a puritan, a priest, and a cavalier, Cardinal Gibbons protested against this piece of sentimentality; he declared that Lord Calvert, and Calvert alone, was responsible for the policy of toleration, an accurate historical estimate. The list [*150] of Maryland Attorneys General which appears in the front of each volume of the Reports of the Attorney General of Maryland notes the religious affiliation of each attorney general appointed between 1657 and 1777 (citing Owings1953; 2004). Jewish emancipation in Maryland was accomplished in 1826, but religious test oaths for officeholders survived until the US Supreme Court decision in TORCASO v. WATKINS (1961), and those for jurors, until the decision of the Maryland Court of Appeals in SCHOWGUROW v. STATE (1964). Maryland was the last state to authorize civil marriages. In 1860, when the Baltimore City police force was reorganized in reaction to the ethnic strife of the Know Nothing period, a practice began of alternately appointing Catholic and Protestant patrolmen, which did not end until the appointment of Police Commissioner Donald Pomerleau in 1966.

The New England states are peculiar in that in several of them, judges are given life tenure, as in the English practice; the powers of the legislature as much as juries were relied upon to prevent abuse. Thus, Nelson’s succinct and lucid work is of considerably more than antiquarian interest, but contributes to an understanding of the roots of our institutions and the different courses on which they might have developed.

REFERENCES:

Alexander, Julian J. (ed.). 1912. BRITISH STATUTES IN FORCE IN MARYLAND. Annapolis: Maryland State Archives.

Hochheimer, Lewis. 1904. LAW OF CRIMES AND CRIMINAL PROCEDURE. Baltimore: Baltimore Book Co.

Owings, Donnell M. 1953/2004. HIS LORDSHIP’S PATRONAGE. Baltimore: Maryland Historical Society; Annapolis: Maryland State Archives.

CASE REFERENCES:

MCGRAW v. STATE, 234 Md. 273 (1964).

DORTCH v. STATE, 1 Md. App. 173 (1967).

SCHOWGUROW v. STATE, 240 Md. 121 (1964).

THE SIX MAN JURY: A DISCUSSION BEFORE THE JUDICIAL CONFERENCE OF THE FOURTH CIRCUIT, 59 F.R.D.180 (1972).

TORCASO v. WATKINS, 367 U.S. 488 (1961)

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© Copyright 2009 by the author, George W. Liebmann.

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CONCEIVING LIFE: REPRODUCTIVE POLITICS AND THE LAW IN CONTEMPORARY ITALY

by Patrick Hanafin. Burlington, VT: Ashgate Publishing Company, 2007. 124pp. Hardback. $99.95/£55.00. ISBN: 9780754646358.

Reviewed by Jennifer Woodward, Department of Political Science, University at Albany. Email: Jennifer.woodward01 [at] albany.edu.

pp.144-147

Why would a repressive piece of legislation be produced at the end of a period of substantial progressivism in society? Patrick Hanafin hopes to find out how this happened in Italy when repressive reproductive legislation was passed following a period of progress in the country’s gender relations. He explores the development of legal regulation on human reproduction in Italy from 1978 (when legalized abortion was introduced to the country) until 2004 when restrictive regulations on assisted reproductive technologies were passed. The central question he asks is how Italy, which was moving away from a heteropatriarchal conception of family in the 1970s, was successful in introducing a law that gave symbolic recognition to human embryos and restricted access to assisted reproductive technologies. Hanafin’s answer involves a complex interweaving of the relationship between the state and civil society, the transformation of the political party system in the 1990s, competing ethical worldviews found within society and legal documents, the rebirth of the Roman Catholic Church as a political force, the decline of the feminist movement, and the changing conceptions of the status of women in Italian society (p.2).

In the introductory chapter, Hanafin argues that “the regulation of human reproduction is intimately linked with the question of the relation of the citizen to the state” (p.1). Emerging from patriarchal discourses and law, he argues that women’s bodies within democracies are sites of ideological contestation regarding the nation, community, and identity. Although Hanafin focuses on contemporary Italy and the influence of the Catholic Church in producing a complex narrative of the family that is both progressive and traditional, his argument is applicable to other countries as well. His discussion of how feminists in Italy have provided counter-narratives to the patriarchal view of the family, in a manner that re-conceptualized the role of women in society and provided them a voice within the public sphere also provides insights into the feminist movement more generally (p.3).

In this chapter, Hanafin also presents vitapolitics, his theoretical framework. “Ethopolitics” (an individual governance of the self) found success in Italy’s feminist movement of the 1970s and enabled the reshaping of gender relations within the country. Vitapolitics (the interactions between micropolitics of the movements of individuals and public officials) provides a form of politics that allows for morality based law. Hanafin argues that in recent years “ethopolitics” has been eclipsed by “vitapolitics.” It allows for a perspective that considers embryos to be seen as active individual agents within the law and for women [*145] become mere vessels for the reproductive needs of the nation (p.5). Not only abortion, but the use of assisted reproductive technologies place women outside of the acceptable citizenship in vitapolitics. In other words, women in a society dominated by vitapolitics are not good citizens if they control (or even attempt to control) their reproductive decisions. As such, Hanafin argues, women are reattached to the private sphere and the embryo takes on a symbolic value that represents the survival of traditional heteropatriarchal notions of the family.

Hanafin does a particularly nice job describing the role of the Catholic Church in conducting a discursive war on the feminist movement in Italy with the change in political climate. With the Church allied to conservatives, moderates, and liberals the distinctions between the secular and religious blurred. As a result, diverse viewpoints were no longer heard in matters of bioethical controversy. The “culture of life” espoused by the Church became a “rhetorical devise for introducing a de facto theocratic state in a de jure pluralist democracy” (p.11).

In the second chapter, Hanafin discusses why it has been so hard for Italy to overcome its ideal of paternalistic families. The fascist state introduced a legal framework that resulted in a second class citizenship for women as they were relegated to the home. This occurred through laws prohibiting birth control and abortion, to incentives such as tax bonuses for women who gave birth on a regular basis. This narrative and its corresponding legal framework continued in the post-war republic (p.16). Then the Constitutional Court in 1968 overturned a discriminatory law on adultery, which Hanafin argues was the point of departure from the immediate post-war heteropatriarchal model of family. Thereafter, Italy’s legislature began a number of reforms that reflected the more liberal reconceived notion of the family, including the legalization of abortion, removal of provisions to obtain birth control, and the defeat of traditionalist referendums (p.23). This chapter contains a number of insights into the pre- and post-war conditions of gender roles that could find interesting parallels with other countries. My only criticism is that the chapter could benefit from more discussion of these roles and how they were transformed in the post-war conditions of Italy. In particular, it would have been worthwhile to have an expanded discussion of how the post-war democracy changed the relationship between men and the state, but not between women and the state (p.11).

The third chapter covers the debate over abortion and how it led to a questioning of acceptable forms of organization. Hanafin discusses a legal and subsequently a medical system that treats women obtaining an abortion with contempt and punishes medical providers who do not conscientiously object to the procedure. He argues that it is the patriarchal and conservative cultural values that undermined the seemingly more liberal legislation (p.38). Chapter four explores the evolution of conservative resistance to the legalization of abortion and the feminist movement’s quest for reproductive freedom. Hanafin concludes the chapter by arguing that the rights of embryos came to supersede the rights of women as a result of the convergence between Catholic interest [*146] groups campaigning to incorporate embryonic rights into the legislative agenda, the lack of ideological commitments of the political parties on this area of contestation (and their reliance on the Catholic Church for support), as well as a weakening feminist movement (p.58). In both chapters, Hanafin ties his arguments to Italian theorists in a superb manner in order to frame and support his arguments.

The fifth chapter looks at how the resistance of the Catholic Church was successful in introducing a 2004 law that greatly limits (and for single women prohibits) assisted forms of reproduction. This law, Hanafin argues, shows how heteropatriarchal power can overcome norms of autonomy in a pluralistic society and has resulted in declining in-vitro fertilization within Italy and more couples turning outside of Italy for the treatment if they can afford it (pp.12, 59, 79). The chapter includes a valuable account of the discursive history of the term “conception” and links former laws on adultery to the ban on donors found in the 2004 law (pp.60-63). As in chapter three, Hanafin incorporates Cavarero’s patriarchal framework of women as mere carriers of seeds in a manner that both supports and makes his arguments more applicable to a comparative framework. For example, his discussion of the evolution of abortion law in Ireland shows how discourses that consider women deceitful results in “forced pregnancy in the name of some notion of idealized citizenship” following rape (p.75). Hanafin also briefly includes Belgium and Spain in his analysis.

Finally, the sixth chapter calls for a reframing of reproductive citizenship. Hanafin argues that reconstructing autonomy and privacy can increase the odds of using rights claims to promote liberalism through the right to reproductive freedom. In this final chapter, Hanafin’s interest in Cavarero (1995; 2000; 2002) takes center stage as he argues for a reframing based upon her arguments. Cavarero provides a conception of women who have had their voices and bodies silenced and made invisible by a male symbolic order. Female symbolic spaces, what Cavarero calls the “absolute local,” must be created (p.94). This space requires a deconstruction of belonging and “the marginalization and of qualities and the depoliticalisation of the what” (p.94). In the end, Hanafin ties Cavarero’s political praxis with Cigarini’s (1995) notion of “above the law” (where women engage in their own relation with the law using their own voices rather than those imposed upon them by masculine law) in a manner that coincides well with the calls for reframing citizenship found within feminist thought.

CONCEIVING LIFE is an excellent example of the important intersections between politics, religion, civil society, gender, and the law. Not only does Hanafin’s work demonstrate a contribution to the aforementioned fields, but it also highlights the usefulness of a comparative approach to the study of law. Although firmly rooted in feminist theory, he shows a complex application of all these fields to his explanation for how regressive policy can be established in times of social progress. [*147]

REFERENCES:

Cavarero, Adriana. 1995. IN SPITE OF PLATO: A FEMINIST REWRITING OF ANCIENT PHILOSOPHY. Cambridge: Polity Press.

Cavarero, Adriana. 2000. RELATING NARRATIVES: STORYTELLING AND SELFHOOD. London: Routledge.

Cavarero, Adriana. 2002. A PIÙ VOCI: FILOSOFIA DELL’ ESPRESSIONE VOCALE. Milan: Fetrinelli.

Cigarini, Lia. 1995. LA POLITICA DEL DESIDERIO. Parma: Pratiche Editrice.

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© Copyright 2009 by the author, Jennifer Woodward.

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EU FOREIGN RELATIONS LAW: CONSTITUTIONAL FUNDAMENTALS

by Marise Cremona and Bruno de Witte (eds). Oxford, UK, and Portland, OR: Hart Publishing, 2008. 328pp. Paperback. $74.00/£35.00. ISBN: 9781841137575.

Reviewed by Angelos M. Syrigos, Department of International and European Studies, Panteion University-Athens, Greece. Email: angelos [at] syrigos.gr.

pp.139-143

One of the most intriguing moments during the teaching of the external relations of the EU is when the issue of its legal personality is reached. Students consider that the European Community (EC) is part of history, since they think that, by the time of their birth, it has been replaced by the EU. Suddenly, they learn that only the EC has legal personality and can conclude international agreements. On the other hand the EU is only a political and institutional framework with no legal personality.

This is a mere example of the various difficulties that are inherent in explaining the EU foreign relations law. And these difficulties become more complicated when it comes to speak about the “constitutional fundamentals” of this law. Thus, the task that has been undertaken by Marise Cremona and Bruno de Witte, who edited the volume, was difficult. They could have chosen the easy way to speak about the Treaty of Lisbon and how this Treaty alters the structure the EU’s external role. According to the new structure, the ancient problem of the legal personality of the EC/EU is to be solved. A single legal personality will strengthen the EU’s voice as well as its negotiating powers. Moreover, a new High Representative for the Union in Foreign Affairs and Security Policy and also Vice-President of the Commission is introduced. He is going to be supported by the new European External Action Service. Special decision-making arrangements concerning European Security and Defence Policy have been preserved in order to respect the particular interests of the Member States.

Nevertheless, the two editors decided to follow the rough path to examine and reassess all the main norms and principles of the EU external relations law as they have emerged during the last 50 years. Their task is complicated by the fact that the legal structure of the European Union is based on a detailed primary law of Treaties as it is interpreted by the European Court of Justice, and it lacks clearly marked main norms and principles which, based on the domestic analogy, could be considered as the EU constitution.

The volume is divided into five parts. In the introductory chapter, de Witte presents an overview of the European “constitutional” provisions on foreign relations. He considers that they are so complex that they are a burden rather than a support. Whereas in the beginning the relevant provisions could be characterized as few and laconic, in the 1980s they became more detailed and in the end more complex than many national constitutions. Additionally, since some of the rules were developed entirely through case law rather than [*140] through the text of Treaties, a judge-made complexity was added to the overall picture. Professor de Witte argues that the EU has lost an opportunity to adopt “constitutional” rules which could limit and steer the activity of the institutions instead of obstructing it.

The second chapter is the first of a group of three essays which describe the foreign relations law in a multi-pillar era. This chapter, written by Christoph Herrmann, tries to re-analyze the traditional approach to describe the EU as an ancient Greek temple based on three different pillars versus a single and unitary legal order. The charter is using a number of cases to show a growing trend in the European Court of Justice to disregard the three pillars and follow a “cross-pillarisation” approach of the EC/EU policies. Hermann concludes that, in spite of the intensity of the debate about unity of the EU legal order, in practice this unity makes little sense regarding the separation of the EU law in two Treaties. Beyond legal theory, this question is merely a “façon de parler.”

In the third chapter, Alan Dashwood analyzes the law and practice of the common foreign and security policy (CFSB) joint actions, especially since January 2001, when the European Security and Defence Policy (ESDP) was put in place. The chapter is divided into two parts. In the first part, the criteria that ought to guide the choice of joint actions as the appropriate form of legal instrument for adoption of measures pursuant to the objectives of the CFBC are examined. Although two main categories of joint actions are identified (joint actions that organize ESDP operations, and joint actions that provide financial or other assistance), it is pointed out that article 12 of the EU Treaty does not adequately provide for all of the purposes for which the adoption of binding legal acts is required. The lacuna is partly filled by sui generis decisions into the sphere of the Second Pillar, though of uncertain legality. The second part examines the constraints that article 47 of the EU Treaty (to be replaced by article 40 of the amended treaty, following the entry into force of the Treaty of Lisbon) imposes on the choice for the institutions between CFSP joint action or community measure adopted under the EC Treaty. According to case law, competences under the Third Pillar cannot be used in order to adopt measures identical to those that can be taken by the Community under the EC Treaty. On the contrary, instruments that have been adopted under the CFSP objectives are valid irrespective of the fact that the Community may also have the right to act in pursuance to different objectives of the EC Treaty.

The fourth chapter, by Christophe Hillion and Ramses Wessell, examines a similar issue, that of the restraint of external competences of EU Member States under CFSP. It is true that by the time of the adoption of the CFSP many states considered it as an intergovernmental issue that could not interfere with their freedom to conduct their own foreign policy and conclude international agreements. Nevertheless, in practice the rationale behind the CFSP entails a consultation obligation between the Member States. Moreover, their CFSP loyalty obligation creates certain restraints, especially when the Union has already acted. Hillion and Wessell also [*141] examine parallel competences between the Union and Member States to conclude international agreements with third states and international organizations. Their argument is that it seems too early to rule out exclusivity in the field of CFSP, especially if these agreements depart from established Union Law. Last but not least, they conclude that, in spite of “pillar specific” characteristics, the interplay between the pillars has a spill-over effect, which renders certain notions “principles of Union Law.” Additionally, the CFSP obligations cannot be approached in isolation from the other two pillars. This is further proved by the fact that powers retained by Member States in the field of CFSP cannot be exercised at their own discretion when action is to be taken at EU level, since Members States are not able to choose between a CFSP and an EC legal basis.

The second group which consists of two chapters is entitled, “The EU and its member-states.” It starts with an article by Marise Cremona, one of the editors of the volume. The article discusses the management of shared and overlapping competences between the Community and Member States. Cremona examines the tendency to regard exclusive competence as the best option to defend community interests, whereas shared competences are not necessarily a good solution. She argues that exclusivity is not the only way to defend community interests. More specifically, there are certain constraints imposed by the loyalty principle, as it is embodied in Article 10 of the EC Treaty, upon Member States when they exercise their foreign relations powers. Cremona concludes that Member States should respect the loyalty principle and comply with their community law obligations in repsect of international agreements falling under their competence. Moreover, the unity of the Community legal system and more generally of the Community order has to be preserved with respect to third states. Futhermore, there is a duty of co-operation, not only in the negotiations of mixed agreements, but more generally in the areas that affect the EU external relations sphere. When Member States operate within the scope of “community interest” they have to respect the autonomy of the Community legal order as well as its primacy and to incline towards the completion of its objectives.

The sixth essay, by Panos Koutrakos, focuses on the choice of the appropriate legal basis in the context of the EC external relations and more specifically on the interpretation of Articles 133 and 308 of the EC Treaty. If an agreement concluded by the Community is based on an incorrect legal basis, the agreement would be invalidated inside the EU legal order, whilst it would bind the Community under international law. As it is understandable, the internal constitutional repercussions of the European Union law do not have any significance in the international relations which need clarity and detest uncertainty. On the other hand, the ongoing process of the political formation of the EU renders impossible the quest for complete clarity and predictability. In order to avoid complications concerning agreements incompatible with EC law, which would undermine the interests of the EU in international negotiations, Koutrakos suggests that a mechanism should be established whereby the Court of Justice may offer its Opinion as a matter of [*142] urgency. Furthermore, he remarks that in the multilayered system of the EU external relations, as it is set out by the Treaties, there is no provision for a single legal basis. All legal bases should be taken into serious consideration.

The next group of chapters is about executive accountability. In the seventh chapter, Daniel Thym examines the parliamentary involvement in European international relations. In spite of continuous changes in the EU legal order, parliamentary involvement in international treaty-making at the European level is still limited and cannot be compared with the powers possessed by national parliaments in this field. The powers of the European parliament are limited to parliamentary consultation or consent under Article 300 of the EC Treaty. The Lisbon Treaty does not fundamentally change the picture, although some new rights for the European Parliament are introduced. National parliaments still maintain the decisive role with regard to defence policy and ratification of mixed agreements. Thym concludes that the internal integration progress of the EU does not merely project its domestic competences to the international relations field. Therefore, the role of the Parliament in foreign affairs is a “generic expression of the constitutional fundamentals” of EU’s foreign affairs.

Following the terrorist attacks of the 9/11 in the US and the “war on terror,” increased activity in fields which directly affect individual rights has been witnessed. Eleanor Spaventa discusses how this activity affects the protection of individual rights in the EU, focusing attention on the adoption of “terrorist lists” and more specifically in the inclusion of individuals who lack the necessary legal tools to counter-attack this inclusion. Spaventa concludes that the level of guarantees of individual rights is not as high as it used to be before the “war on terror.” Whilst an appropriate treaty amendment could provide a solution to the problem, in the meantime, Spaventa argues, the Member States should refrain from using EU instruments in matters that affect individual rights.

The last group of chapters concerns human rights and international law in EU foreign relations. In the ninth chapter, Päivi Leino examines whether human rights and “common values” are the guiding principles of the EU foreign relations law. “Common values” are the values referred to in Article 49 of the Lisbon Treaty, which are respected by all Member States and, in theory, guide EU action. Nevertheless, Leino posits that in practice these values, which are described as universal by the EU (in order to avoid charges of neo-colonialism associated with its policies), are offering a vague set of objectives rather than something that can be attained. Leino, clearly inspired by Jürgen Habermas, focuses on the more negative uses of human rights language. He asserts that there are few things that are automatic or generally accepted in the notions of human rights and “common values.” Moreover, these values do not offer neutral and independent standards that can be simply transformed to “legal” criteria. Instead, these values should be regarded as a shared basis for political discussion in order to receive their meaning and to attain priorities. [*143]

In the last chapter of the volume, Christine Kaddous, examines the relationship between international and EU law and tries to determine whether the EU follows a monist or dualist system. For that puprose, Kaddous examines international agreements to which the EC is solely a party, mixed agreements and agreements to which one or more Member States are parties but not the Community. From a series of recent judgments it seems that the Court follows a very open approach concerning direct effect and interpretation since all the agreements entered into by the Community are binding on Community Institutions. Direct effect is accepted as long as the provisions of the agreements are clear, precise and unconditional. Nevertheless, there are two important exceptions with the GATT and WTO case law. On the one hand, the GATT was considered as too flexible to be given direct effect. On the other hand, the WTO agreements involved the principle of reciprocity which had to be taken into consideration. Moreover, the Council and the Commission need room to manoeuvre in their negotiations with the other WTO members. Kaddous concludes that it is difficult to classify the EU system either as a monist or as a dualist system.

The book certainly succeeds in its aim to examine the main norms and principles of the EU external relations law. It provides an indispensable background for any thorough study of an area of EU law that has emerged over 50 years of Treaty-based and judicial development. It exemplifies the cross-pillar legal complexities by providing many concrete examples based on recent case law. It is a book that can be highly recommended to EU law specialists, as well as to lawyers and academics who want to contribute to the ongoing debate about the constitutional issues of EU foreign relations. Nevertheless, a solid legal background is needed for somebody to really enjoy the book.

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© Copyright 2009 by the author, Angelos M. Syrigos.

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THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND

by Barry Alan Shain (ed). Charlottesville: University of Virginia Press, 2007. 352pp. Cloth $45.00. ISBN: 9780813926667.

Reviewed by Paul A. Passavant, Department of Political Science, Hobart and William Smith Colleges. Email: Passavant [at] hws.edu.

pp.136-138

From the 1980s through the 2000s, scholars of political and legal theory, as well as those interested in Law and Society, have been preoccupied by debates over rights. Liberal theorists emphasize the value of legal rights, while communitarians emphasize the fragmenting or alienating aspects of rights claims. Critical legal studies argues that rights are inadequate to justice, while approaches more indebted to Michel Foucault or Jacques Derrida find that, in the context of a liberal legal order, the discourse of rights is open to political struggle and that the underprivileged might be able to frame their grievances within a discourse of rights in order to utilize a rhetoric in which their claims to justice could be comprehensible, and seem valid, if not compelling. Studies in the Law and Society field divide over whether legal rights demobilize social movements or whether they have the potential for facilitating social movements oriented towards greater social equality. More recently, Law and Society scholarship emphasizes that a language of rights can be just as useful to right wing social movements today as it was to more liberal social movements in the 1950s-1970s.

Many of these interventions, however, take for granted that the United States has always had a liberal or “Lockean” political or legal culture, and that this is a culture of individualism. American historians have troubled such assumptions by returning to the late colonial and founding period in American history to rediscover influences from the Scottish Enlightenment or civic republicanism. THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND, contains essays, organized more or less historically, from scholars who have added to our understanding of rights in American history and American political thought in especially significant ways over the last thirty years. Its main strength is that it contains exemplary essays from those whose contributions have spanned multiple volumes. Here, in one place, the reader can find an essay that seems to capture a scholar’s most important findings over the course of a career – such as John Philip Reid’s contribution discussing the importance of the British Constitution and the rights of Englishmen to late colonial and early revolutionary struggles.

This collection includes scholars of the revolutionary or founding period who bring their great breadth and depth of knowledge regarding these eras to bear on a particularly specific aspect of rights. Through this focused inquiry, they unpack late 18th century America as a political culture unleashing the potential for future political and legal struggles over rights. Jack Rakove’s [*137] essay, for instance, describes the dilemma of declaring rights the framers faced since any declaration at that historical moment risked both later interpretive ambiguity and risked limiting, unintentionally, rights later generations might find necessary (Thomas Jefferson’s view was that half a loaf was better than none). Gordon Wood’s contribution shows that rights have existed within a variety of political or legal orders and have become reinscribed within new political settings. The medieval king had a right to govern, and the English had their feudal rights, but over the course of the 17th century, rights came to be understood as something to be held against the monarch while Parliamentary sovereignty was understood to be the protector of the people’s rights. The American experience grew out of a tradition of rights claims against a monarch, but after the experiment with state sovereignty under the Articles of Confederation, republicanism developed, in the American context, a recognition that legislatures and executives, though agents of the people, might also threaten the rights of the people as monarchs once had.

Many of the contributors to this volume explore the rhetorical flexibility of rights as a political or legal discourse. Rights cannot be easily controlled by elites and can enable the politicization of conditions from below. Daniel Rodgers’ chapter, for example, shows how, immediately after the Declaration of Independence, rights talk reflected a “breathtaking inventiveness” (p.263). Moving from the late 18th to the early 19th century, then, Rodgers demonstrates that workingmen’s associations in the 1820s and 1830s took up the abstract phrases of the Declaration of Independence to argue against economic inequality, while the antislavery movement, and the women’s rights convention at Seneca Falls in 1848, followed suit, invoking their notions of inalienable rights against slavery and forced domesticity. American history has been constituted by multiple rights revolutions.

While many of the debates over rights during the 1980s and 1990s referred to rights talk as inherently individualizing if not atomizing, the benefits of a more historical approach to American political thought or legal controversy, as exemplified by Rodgers’ and Rogers Smith’s essays, complicates the communitarian critique. To be sure, as Rodgers notes, “rights do not exist outside a situation of real or potential antagonism,” since “to talk of rights has been to specify tyrannies” (p.276). Yet, the discourse of rights is more complicated than that. To speak of rights is to speak of “common possessions,” the “rights of the people,” and collective or corporate rights such as the “right to assemble, organize, worship, vote and strike.” Because a discourse of rights can be mobilized by such a variety of different interests, rights can help forge coalitions, political relations, or become constitutive of a particular collectivity or political identity. Situated historically, the political significance of rights is more than a “simple vehicle for possessive individualism” (ibid.).

This volume might have been improved through an editorial introduction specifying more explicitly the terms of historical debates regarding the revolutionary and founding periods, if [*138] not their stakes. Or, an editorial introduction might have brought some of the essays into critical dialogue with each other more explicitly. For example, in light of Rodgers’ essay describing numerous and frequent mobilizations of the rights of the Declaration of Independence, does it make sense to argue, as Barry Shain does, that Stephen Douglas may have gotten the Declaration “right,” and Abraham Lincoln may have gotten the Declaration “wrong,” when the latter argued that the Declaration’s Preamble, stating that “all men are created equal,” should apply to slaves of African origin (pp.118-119)? While some of the later chapters (such as those by Leif Wenar and Stephen Macedo, and the essay by Smith) do begin to create a dialogue among some of the essays, more might have been done in this regard through an introduction addressed more specifically to this purpose.

Although THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND, contains a number of essays devoted to questions of rights at the “founding,” “beyond” tends to get covered by essays devoted to a broad historical arc encompassing decades, if not hundreds of years. Perhaps, though, this just speaks to the need for additional volumes that might be addressed to the politics of rights in the 19th, 20th, and 21st centuries. In sum, students and faculty with interests in American political thought, legal history, the history of political ideas, and American political development will find value in this collection of essays devoted to the politics of rights in American history.

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© Copyright 2009 by the author, Paul A. Passavant.

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