WHAT COMES NATURALLY: MISCEGENATION LAW AND THE MAKING OF RACE IN AMERICA

by Peggy Pascoe. New York: Oxford University Press, 2008. 416pp. Hardback. $34.95/£18.99. ISBN: 9780195094633.

Reviewed by Mark Kessler, Department of History and Government, Texas Woman’s University, email: MKessler [at] twu.edu.

pp.218-220

In this highly original and important book, Peggy Pascoe describes and analyzes three centuries of laws in the United States prohibiting interracial marriages and sexual relations. In perhaps the most comprehensive and systematic study of legal marriage and sex prohibitions to date, Pascoe argues that these laws were central ideological tools used in constituting and reproducing white supremacy in the United States. Placing her study in its broadest context, she argues that examining the rise and decline of these laws “provides a locus for studying the history of race in America” (p.2). Pascoe’s study demonstrates how historical research, combined with critical cultural theory and analysis, may shed new light on significant questions regarding the power of law and legal interpretation in constructing and reconstructing social reality.

Throughout this work, the writing is admirably accessible, while the analyses and arguments are deeply nuanced. Pascoe begins many of the eleven chapters with stories describing the people and circumstances involved in miscegenation cases throughout history. These stories are carefully selected to show the great variation in characteristics of participants, laws, and regions of the country in which the cases arose, and to help address the broader questions of nation-building and nation-formation that emerge from this study. Pascoe uses these very human stories, along with landmark appellate court decisions and local legal practices, to explore the many and varied ways in which social and political relations based on race, gender, and sexuality illuminate the rise and fall of miscegenation law in the United States.

Pascoe’s narrative begins in the Reconstruction era, when the term “miscegenation” was first invented and applied to interracial marriage and sex. Her discussion focuses on the ways in which judges, legislators, and lawyers employed notions of what is “natural” and “unnatural” in conventional cultural discourses about sex, gender, and sexuality to create and apply laws prohibiting interracial marriage and sex. Such laws emerged first in the South and North and typically applied exclusively to relations between those categorized racially as “white” and as “black.”

Pascoe’s narrative moves from southern and northern regions to a comparison with bans on interracial marriage and sex in western states. The analysis of laws and their implementation in the west adds importantly to scholarship on miscegenation laws by focusing on interracial marriage and sex bans between those racially identified as “white” and many other categories of racial “others,” such as Japanese, [*219] Chinese, Filipinos, and American Indians. In her close readings of laws and legal cases, and her attention to the multiple social categories of difference represented by participants in these cases, Pascoe brilliantly highlights the multiracial dimensions of white supremacy, along with patterns of interpretation and implementation that underscore how ideologies of male supremacy and heteronormativity work together in individual cases to explain outcomes and legal rationales.

Pascoe’s research and analysis goes beyond judges, lawyers, and legislators to examine the constitutive work accomplished by local bureaucratic officials in marriage license bureaus who had to make decisions on whether two people could marry, given prohibitions on interracial marriages. These clerks determined if particular applicants for marriage licenses violated miscegenation laws by falling into prohibited categories or, alternatively, were “white” and thus could be legally married. In making such complex determinations, local clerks engaged in significant ideological work, making and remaking notions of racial difference that had an important impact on the lives of many people. In this way these clerks engaged in cultural practices similar to the judges studied by Haney López (1997), judges who rendered decisions in concrete cases regarding whether particular individuals were “white” for purposes of citizenship at a time when citizenship rights applied only to those classified as “white.”

In three chapters, Pascoe tells a fascinating story of the legal campaign to overturn miscegenation laws. The campaign was originally framed by the NAACP in the early twentieth century by constructing arguments challenging conventional notions of the “nature” of race that took the form of black inferiority, while reinforcing traditional ideas about the “nature” of gender that relied on the need to “protect women.” Working for change within a culture shaped by white and male supremacy, the NAACP was careful at first not to endorse the desirability of interracial marriage. Focusing on how legal arguments and cultural discourses evolved and helped shape legal decisions as the campaign proceeded and how legal decisions in turn helped shape and reshape evolving cultural discourses and legal argumentation, Pascoe provides close and insightful readings of major landmark decisions, such as PACE v. ALABAMA (1883), MCLAUGHLIN v. FLORIDA (1964) and LOVING v. VIRGINIA (1967), and the environment in which they were decided. Pascoe views LOVING as significant not only for declaring miscegenation laws unconstitutional, but also for promoting an ideology of “colorblindness” as racial equality, a concept she views as overly simplistic and in some ways responsible for reproducing unequal relations of power and privilege, a critique with parallels in strands of critical race theory (e.g., Crenshaw, et al., 1995 ). LOVING, then, according to Pascoe, leaves a complex and contradictory legacy, both challenging and reinforcing social, political, and racial inequality.

WHAT COMES NATURALLY is an outstanding work of politically engaged research conducted by a creative and gifted scholar. The research and analysis combine close and convincing readings of laws, court decisions, and other documentary evidence with a compelling account of the cultural discourses [*220] shaping law and legal practices and the ways in which such practices influenced broader cultural ideals. The multiple evidentiary sources are brought together in a powerful narrative revealing the effectiveness of law as a cultural practice “making race,” in the phrase used by Pascoe, as well as “gender” and “sexuality.” Further, Pascoe’s analysis illustrates how intersecting roles of race, gender, and sexuality associated with parties to concrete cases help to explain seemingly inconsistent judicial decisions. Moreover, this study demonstrates the analytical potential of exploring issues of law, difference, and social justice in ways that combine traditional historiography, critical cultural studies, and critical race theory.

The skillful use of these diverse approaches, and the self conscious attention to law as cultural practice, enhances the contemporary political significance of the study’s major findings and interpretations regarding marriage. As Pascoe puts it: “When societies decide who can and who can’t legally marry, they determine who is and isn’t really part of the family. These inclusions and exclusions take place at such an intimate level that they shape what seems natural and, in turn, what is stigmatized as unnatural” (p.2). Variations on the social and political discourses that Pascoe identifies and analyzes continue to shape the question of who is engaged in natural relations that invite inclusion in the “family” and, conversely, who is stigmatized as engaged in unnatural relations that render them unworthy of family membership. Pascoe’s provocative volume provides substantive guidance regarding the many challenges involved in resisting conventional, deeply embedded cultural understandings of interpersonal relations such as marriage. As important, this book is an inspiration to those committed to expanding the “family” to include all who wish to join.

REFERENCES:
Crenshaw, Kimberle, Neil Gotanda, Gary Peller, and Kendall Thomas. 1995. CRITICAL RACE THEORY: KEY WRITINGS THAT FORMED THE MOVEMENT. New York: The New Press.

Haney López, Ian. 1997. WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE. New York: New York University Press.

CASE REFERENCES:
PACE v. ALABAMA, 106 US 583 (1883).

MCLAUGHLIN v. FLORIDA, 379 US 184 (1964).

LOVING v. VIRGINIA, 388 US 1 (1967).

---

© Copyright 2009 by the author, Mark Kessler.

Continue Reading...

THE CHALLENGE OF PLURALISM: CHURCH AND STATE IN FIVE DEMOCRACIES (2nd ed)

by Stephen V. Monsma and J. Christopher Soper. Lanham, MD: Rowman and Littlefield. 278pp. Cloth. $75.00. ISBN: 9780742554160. Paper. $27.95. ISBN: 9780742554177.

Reviewed by Kevin R. den Dulk, Departments of Political Science and Honors, Grand Valley State University. Email: dendulkk [at] gvsu.edu.

pp.214-217

When Stephen Monsma and Chris Soper published the first edition of THE CHALLENGE OF PLURALISM over ten years ago, it stood nearly alone in its focus and approach. Few books had examined church-state relations in cross-national perspective, and none with quite the same combination of clarity, richness of detail, and prescriptive edge. This second edition retains all of those traits, but I agree with the authors that the stakes today may be even higher than in the late 1990s. Religious pluralism in Europe and Australia is growing – or at least it is more conspicuous and challenging – and there appears to have been a “re-politicization of religious disputes” in the post-September 11 world.

THE CHALLENGE OF PLURALISM is superb cross-national analysis, but the primary purpose of the book is more normative than empirical. “Our goal,” Monsma and Soper assert, “is to give new guidance to all democracies and to the United States in particular in their attempts to relate church and state to each other in a manner that is supportive of their citizens’ religious freedoms and the role of religion in them” (p.2). On the highly contested terrain of church-state relations, their goal is ambitious and their guidance is unavoidably controversial. They advocate a “structural pluralist” framework that recognizes the comprehensive role that religion plays in human experience and requires the state to exercise “genuine neutrality” in its treatment of religion. In practice, such neutrality would mean that all religions and non-religion alike would be given the same access to state resources and protection. It would also mean rejecting some prominent church-state alternatives, including what Monsma and Soper perceive as the predominant separationism in the United States.

Monsma and Soper are forthright about the challenges to their pluralist model, especially in areas such as state-aid to faith-based education or social services. In fact, the book is organized around several key questions that point up those challenges: What are the limits to government forbearance of unconventional religious practice? Should government promote “consensual” religious beliefs and practices? How can the state ensure neutrality among religions and between religion and non-religion? They maintain from the outset that equal treatment does not entail accommodation of those practices that the broader community perceives as violations of fundamental values, but they also tackle the difficult question of how to balance those values against claims of religious freedom. [*215]

Monsma and Soper use a comparative case study to illustrate various ways of addressing these key questions. One might quibble with their case selection, which is limited to the United States, England, Australia, Germany, and the Netherlands. To be sure, the addition of Italy, France, a Scandinavian country, or even non-Western states would have broadened the analysis. But I would have found little value-added by piling up or rearranging the countries in the study. Monsma and Soper sought cases that were roughly constant across some key variables – e.g., mature and stable liberal democracies, some level of religious pluralism – while varied in their respective models of church-state relations. Real-world cases never quite fit into neat analytical boxes, but one of the reasons THE CHALLENGES OF PLURALISM succeeds is that its authors pay attention to nuance and internal variation while still categorizing and comparing their cases.

Their chief empirical contention is that the United States, in comparison to other western democracies, is “exceptional” in its approach to church-state relations. They characterize that approach as “wavering” between models of strict separation and equal treatment, but they tend to see separationism as defining the “basic terms” of the church-state debate (p.42). For Monsma and Soper, the U.S. Supreme Court, starting with EVERSON v. BOARD OF EDUCATION (1947), began a process of embedding the Enlightenment understanding of church and state into constitutional law, in effect treating religion as a largely private matter that ought to be left out of public affairs. While Monsma and Soper see glimmers of equal treatment in recent cases and policymaking, they argue that it sometimes competes and sometimes combines uneasily with separationism, leading to uncertainty and incoherence in the American church-state model.

Monsma and Soper contrast the United States with the more accommodating approaches of the other states in the study. While they criticize England and Germany for failing to live up fully to the principle of equal treatment, they point out that at least both states acknowledge “that faith has a public character to it” (p.160). Australia has occasionally nicked religious freedom, and it courts do not have a clear theory of church-state relations, but it is “pragmatically” committed to accommodating religious pluralism. And the Netherlands, whose “principled pluralism” is clearly the authors’ preferred model, reflects its own commitment to tolerance and diversity through state support of faith-based schools and other organizations. Each in its own way, England, Australia, Germany, and the Netherlands have some level of commitment to “genuine neutrality,” and they have therefore managed to support religion in ways that are anathema in the United States.

It is important to note that Monsma and Soper readily admit that neutrality in these states has its limits. They repeatedly emphasize that every state “must advance those norms that will help to sustain the polity” (p.218), and that sustaining those norms might result in denying state aid to religious entities that are too far out of the mainstream. One of the key illustrations throughout the book is education; every government they survey has struggled with the precise boundaries of state support for [*216] religious schools. Monsma and Soper’s view of equal treatment requires the state generally to support religious education, but they also conclude that religious schools that are “nurseries of fundamentalism” and “fail to reach their objectives in citizenship education” should not receive state aid (p.220). But of course the interesting issue is the referent of the adjective “their” in the last sentence. The point is that the relevant objectives are the state’s, not religion’s. Hence “genuine neutrality” is bounded by the norms of a particular polity.

This does not seem to pose a concern for Monsma and Soper, who argue that, in fact, the religious schools and other organizations in their case studies generally “do not undermine democratic values, but support them” (p.220). Even for schools associated with unconventional religions, Monsma and Soper suggest that the state may still want to be supportive, since bringing religions into the “state system with the promise of state aid is a better guarantee that they will promote consensual democratic values than consigning them to a status where they have virtually no contact with state educational officials and are less beholden to state regulations” (p.221). But, again, note the direction of influence here: A principled pluralism will protect and even promote religious freedom, but only to the point that religion either supports consensual values or can be made (forced?) to support them.

These considerations raise a key question about the context for pluralism. Does pluralism only work if society itself is largely homogeneous? The Netherlands suggests an affirmative answer. Monsma and Soper grant the point, noting that both the compact geography and shared traditions in the Netherlands make it particularly conducive to pluralism in church-state relations (p.85). There is – or at least has been – wide and deep agreement on basic social norms and values in Dutch political culture for many decades, perhaps even to the 19th century. But now that the Netherlands – like England, Germany, and other European countries – is confronting a real challenge to that agreement as the result of Muslim immigration, some elites are asking whether the pluralist model can be maintained. Monsma and Soper are optimistic that the model can envelop Muslims today just as Catholics, Protestants, and secularists in the past. But one could plausibly interpret THE CHALLENGE OF PLURALISM to suggest that the challenge will be met only if religious pluralism itself is diminished by subsuming new religionists into the broader culture.

I would suggest that this interpretation brings us squarely to the issue of how church-state relations might affect trends toward secularization. Secularization theorists have long asserted that the rise of the administrative state is associated with increasing secularization in Europe because state intervention inevitably alters and co-opts those distinctive features of religion that draw in believers. After reading Monsma and Soper’s concluding reflections, I was left wondering whether it was state intervention itself that fostered some of the secularization that is apparent in the faith-based organizations Monsma and Soper document, especially in the Dutch case. If so, one might be tempted to invoke Roger Williams, insisting that [*217] church and state ought to remain separate to protect the church from the state (an argument that Monsma and Soper, with their focus on Enlightenment influences in the United States, give relatively short shrift).

In the final analysis, these questions only point to the provocative nature of THE CHALLENGE OF PLURALISM, and they certainly do not take away from the authors’ masterful cross-national analysis or well-presented normative goals. The book is itself a challenge to think carefully and humanely about the nature and scope of pluralism. Monsma and Soper have given us a rich array of theoretical and documentary resources to do just that.

CASE REFERENCES:
EVERSON v. BOARD OF EDUCATION, 330 U.S. 1 (1947).

---

© Copyright 2009 by the author, Kevin R. den Dulk.

Continue Reading...

THE PRISONERS’ DILEMMA: POLITICAL ECONOMY AND PUNISHMENT IN CONTEMPORARY DEMOCRACIES

by Nicola Lacey. New York and Cambridge: Cambridge University Press, 2008. 254pp. Hardback. $75.00/£35.00 ISBN: 9780521899475. Paper. $27.99/£12.99. ISBN: 9780521728294. eBook format. $22.00. ISBN: 9780511410604.

Reviewed by J. Michael Olivero, Department of Law and Justice, Central Washington University. Email: olivero [at] cwu.edu.

pp.211-213

This work concerns itself with the “Prisoners’ Delimma,” a term coined by Nicola Lacey to describe how some nations employ and fund severe penal sanctions to manage crime, and by doing so create greater problems. These severe penal sanctions end up costing more financially and socially, than was originally the case, including the generation of further crime and repressive incarceration. Lacey’s case in point is the United States, which she is concerned may come to serve as the model for other contemporary democracies. However, she believes that, even with the convergence associated with globalization, all nations are not inexorably marching towards a similar fate as that of the United States. Instead, through comparison with various other democracies, she attempts to show that key institutional differences provide insulation from harsh penal sanctions and an exclusive society, to a more tolerant criminal justice system and inclusive societal citizenship. She also offers some thought as to what needs to take place for nations, such as the United States, to rectify their present self-defeating course of action. In the long run, she wants the development of societies that promote inclusion of out groups and the reintegration of offenders, because she believes that nothing less than the true meaning of democracy is at stake.

Among other things, Lacey seeks to show how contemporary democratic nations can become truly democratic with respect to a tolerant and sensitive approach to crime management that focuses on the causes of crime, as opposed to a reaction to crime. For purposes of analysis, she barrows heavily from Marxist perspectives on the generation of crime, but also seeks to include the impacts of culture and institutions, thus avoiding the pitfall of economic determinism or vulgar Marxism.

Starting at the institutional level, she believes that we must look beyond the criminal justice system to include the cultural climate and the political economic system to understand crime and penalization. On the cultural level, some states have social environments in which repressive penal warehousing gain positive support by the advantaged majorities. These are states in which the politics of government exploit majority concerns about crimes by out groups. These states are marked by poor intra-party discipline and competition between parties. In addition, there appears to be poor confidence in the professional capabilities of criminal justice personnel. [*212] The combination of these and other factors allow a “culture of control” to develop, which constrains the development of criminal justice policy beyond reactionary fear of crime that fosters repression. Thus, progressive penal practices and reform fall prey to fear of victimization.

Lacey believes that that some governments have constructed systems in which the impact of criminalization and imprisonment is patterned by socioeconomically advantaged groups producing social exclusion of those who are more disadvantaged. In the United States, this group has been African-Americans, with specific impact upon Black males. According to her analysis, there has been a shift in many societies whereby changes and advancements in technology have produced an underclass of unskilled and unemployable workers to whom the majority feels no responsibility and begins to fear. The majority feels that this group needs to be severely punished, and lengthy incarceration becomes a chief means to manage the problem. This model seems to fit well with the African American experience in the United States and the empirical evidence provided by the author. In addition, she also shows that race is a significant out-group characteristic in other countries as well, where racial minorities have been poorly absorbed into the ranks of the employed and into the mainstream of society.

Lacey’s model also fits with globalization and particularly with those nations experiencing influxes in migrant workers. Those nations that needed migrants for labor seem to have greater ease in incorporating those outside of the majority controlled social systems. Nations that are absorbing migrants as the result of refugee and asylum movements without mechanisms for incorporation into the economy also seem to experience increases in the use of incarceration and rising prison populations. Finally, migrants in those nations where there are traditional mechanisms for incorporating the unskilled and uneducated into the economy have lower prison populations.

Lacey develops a typology of political [*213] economies and then empirically shows the relationship between the type of political economy and prison population. The two broad categories of political economy are liberal market and coordinated market economies, and within the coordinated market economies are countries Lacey describes as conservative corporate, social democracies and oriental corporatist. Using empirical observations, she demonstrates that coordinated market economy nations are significantly less inclined to use repressive incarceration methods. Instead, these countries are marked by systems that focus on salient democratic issues, including the training and education of workers, have generous welfare provisions, and show less economic disparity between the wealthy and others. She argues persuasively that these types of arrangements produce social tolerance and inclusive societies. In addition, Lacey concludes that, despite globalization and migration, not all countries in the future will follow the course of repressive penalization exemplified by the US and UK.

I believe Lacy has been largely successful in this endeavor. Overall, the work is powerful. The empirically-based comparison between political economies is effectively presented in a manner that strongly supports her basic propositions. My only criticism is that the work is very ambitious and at times might take on too much in an attempt to derive explanation, rather than focusing on the strongest features of her models and support for her propositions. The book is easy to understand and is highly logical. This work will be of use to those interested in cross-cultural comparisons of crime and those who wish to understand the relationship between the political economy and crime. I would put it in line with Marxian approaches to the analysis of crime, but it goes much deeper by combining institutions and culture with macro-level analysis.

---

© Copyright 2009 by the author, J. Michael Olivero.

Continue Reading...

UNCOVERING THE CONSTITUTION’S MORAL DESIGN

by Paul R. DeHart. Columbia: University of Missouri Press 2007. 312pages. Hardback $44.95. ISBN: 9780826217608.

Reviewed by Jason Pierce, Department of Political Science, University of Dayton. Email: Jason.Pierce [at] notes.udayton.edu.

pp.206-210

If one measure of a good book is the scope of deserved readers, then Paul DeHart’s UNCOVERING THE CONSTITUTION’S MORAL DESIGN is a good book. Political scientists, lawyers, and philosophers will want to engage its thesis and evidence. As indicated in the title, DeHart seeks to uncover the moral framework of the US Constitution by identifying the document’s normative presuppositions and desired ends. As he writes, “A constitution’s normative framework is that set of normative assumptions that makes the best sense of its particular institutional arrangement” (p.28). DeHart is certainly not the first to embark on this journey, but he offers a different tack (See, e.g., Ely 1980; Pangle 1980; McDonald 1985; Lutz 1988). The more conventional approach categorizes a document by studying the intellectual influences and scholastic sources of those who penned it. DeHart eschews this approach, arguing that simply because the Constitution’s framers referenced classical philosophers does not necessarily mean that the document itself carries classical presuppositions and ends. Instead, he calls for a “logical analysis” of the Constitution that disaggregates the classical, modernist, and positivist categories often employed by intellectual historians and looks at what the document assumes about sovereignty, the common good, natural law, and natural rights. DeHart gets at those assumptions by identifying the constellation of possible alternatives and then systematically analyzing which ones best fit the Constitution’s institutional arrangements.

Readers will find DeHart’s logical approach attractive. Some of the book’s conclusions are unsurprising (e.g., the Constitution presupposes a constrained sovereign); others are likely to generate debate (e.g., the Constitution calls for a real, thick, teleological common good), but all are insightful and convincing. In an era when a lot of constitutional scholarship addresses issues beyond the document itself, DeHart reminds his readers that the document’s institutional structures disclose normative principles that shape politics and law. The book’s most rewarding feature is the intellectual journey it records as DeHart teases out those presuppositions.

After identifying in the introductory chapter limitations with fitting the Constitution into neatly defined eras of intellectual history, Chapter 2 describes DeHart’s method for uncovering its moral assumptions: inference to the best explanation. This is accomplished by finding the best explanation for a particular feature of the Constitution based on consilience (a rationale that explains more of the facts is preferable to one explaining fewer facts), simplicity [*207] (the simpler the rationale the better), and teleological fit (a rationale that better fits the facts is preferred over one that does not). DeHart makes a convincing case for this method of logical inference. In fact, I can imagine this chapter, on its own, providing a valuable intellectual framework in constitutional law or legal theory courses where questions about intent inevitably arise.

In subsequent chapters DeHart reaches inferences about the Constitution’s take on sovereignty (Chapter 3), the common good (Chapter 4), natural law (Chapter 5), and natural rights (Chapter 6). To ensure his readers do not miss the forest for the trees, each chapter includes a schematic that maps out possible primary presuppositions and secondary or follow-on presuppositions. This proves most helpful. By way of example, then, the Constitution may presuppose either a wholly popular or not wholly popular sovereign, as well as a restrained or unrestrained sovereign. After analyzing the Constitution’s structures and processes, DeHart concludes that the document presupposes a wholly popular and constrained sovereign. This conclusion, in and of itself, is unsurprising and telegraphed to some extent, but the chapter’s potency comes from the inferential steps to that conclusion, rather than the conclusion itself. If DeHart’s conclusions about sovereignty face little push back, the same is unlikely with his conclusions about the Constitution’s presuppositions concerning the common good, natural law, and natural rights.

Chapter 4 tackles the question of whether the Constitution presupposes some ontological conception of the common good. The chapter begins by describing the various schools and sub-schools of thought concerning this question, beginning with the realism/antirealism divide. DeHart then lays out two types of antirealism: anarchism (the common good does not exist) and conventionalism (there is no common good independent of humans), and drilling still deeper, the two camps of conventionalism: preferential conventionalism (the good is an end or goal, such as peace, fame, pleasure or wealth) and procedural conventionalism (the good is a set of rules that do not dictate any particular outcome). On the realist side of the ledger he distinguishes between deontic realism (the good is a norm to which humans conform) and teleological realism (the good is something humans seek to attain), which comes in a thin and thick form.

Having set out the possible presuppositions, DeHart rejects all antirealist options and concludes that the Constitution presumes a thick teleological realism. This is a “real common good, transcendent of human willing and normative for human behavior” (p.114). It strives for “the rule of reason in the political community” and “the goal of justice,” by constructing a constitution that delays decision making “thereby favoring long-term, widely shared preferences over short-term, narrow ones” (pp.152-54). To wit, DeHart includes bicameralism, multiple veto points, the high threshold for constitutional amendments, and other features that mandate broad and sustained public support for government action.

Chapter 5 considers what the Constitution presupposes, if anything, [*208] about the relationship between legal and moral obligations and a political system’s obligation to pursue the common good. Put differently, does the Constitution presume a natural law, and if so, what does that natural law require? Like Chapter 4, DeHart begins by identifying the range of answers that legal philosophy could render on this question. Absent some natural law presupposition, positivism or anarchy is the only alternative. If a natural law is presupposed, then it is promulgated either through reason, sentiment, or both. If by reason, then the question arises whether the natural law is promulgated for the pursuit of some desired end (instrumentalism) or sought for its own sake (noninstrumentalism). Turning to the Constitution itself, DeHart rejects Austin’s command theory of positivism because of the many ways in which the document constrains the sovereign (the people). Hart’s recognition-based positivism also falls short for the same reason as procedural conventionalism: the Constitution does not accept just any preferences, whether recognized by the community or not. If some form of natural law is presupposed, DeHart remains skeptical about discovering it through sentiment or emotion for the reason that the Constitution’s delay mechanisms seem to discourage actions based on immediate sentiments. Instrumentalism is rejected for the same reason.

In the end, then, the Constitution entails “a noninstrumental account of natural law in which a real, teleological, thick common good is promulgated to human beings through reason and made obligatory for them” (p.194). DeHart is quick to acknowledge a critique that many will raise about this specific thesis: How could a constitution that originally excluded so many from political participation, contained explicit accommodations for slavery, and one that has been interpreted since its ratification in ways that militate against the common good, be said to have any “moral” framework? DeHart recognizes that some slavery provisions offer anti-slavery interpretations, such as the three-fifths compromise, but concedes that others, such as the fugitive slave clause, offer no refuge from the critique. In the end, he abides by a natural law presupposition because it poses the fewest contradictions of the alternatives; more to the point, those contradictions were erased with passage of the post-Civil War amendments. Unfortunately DeHart seems to rush through this criticism with underdeveloped (but reasonable) responses that carry an unyielding tone. Either DeHart underestimates the critique, which I do not think he does, or he is nervous about anything less than an airtight case. Whatever the case might be, additional attention was needed to this issue.

The next chapter investigates the Constitution’s stance on natural rights given its natural law tenets. Either it presupposes natural rights or not. If it does, the question then is whether natural rights precede natural law. If natural rights precede natural law, they can exist in an unlimited or limited sense. DeHart begins by considering just what constitutes a right. He is attracted to Anscombe’s notion of a right as a “stopping cannot” which DeHart describes as follows: “[T]o say that N has a right to do Z is to say that N may do Z, that others may not interfere with N performing Z, and that the permission for N and proscription for others are [*209] both grounded by a special reason” (p.214). Thus, a natural right is a “‘stopping cannot’ with a logos protecting a ‘can’ that a person possesses in virtue of human nature” (p.216). DeHart’s inference to the best explanation begins with the observation that the Constitution is prescriptive in that it places certain obligations on citizens. These obligations carry the right to accomplish them. In the end, the natural law precedes natural rights because it sets for humans the tasks that must be done, which in turn, implies a moral right to pursue that task.

The last chapter takes up the question of whether the logically inferred moral framework to the Constitution is any good. That is, what comes from the Constitution presuming a constrained sovereign, a thick teleological common good, and a noninstrumental natural law that precedes natural rights? This is a tremendously important and complex question, but DeHart unfortunately dedicates much more space in this chapter defending his inferences than helping the reader think through the consequences of the presuppositions – individual and aggregated – for the political system, office holders, and citizens. Do not get me wrong, DeHart gives some elliptical clues. A constrained sovereign produces more reasoned policies, he claims. A thick teleological common good prevents tyranny, fosters tolerance, and enables us to speak of shared obligations. A noninstrumental natural law gives us reasons for perusing certain things and avoiding others. But these glimpses are likely to raise additional questions, most notably why should we care in the first place that the Constitution contains these presuppositions? If DeHart perfectly pegs the document’s moral framework, why is that anything more than an interesting intellectual tidbit? This question received inadequate attention, in my opinion. I very well may be asking more from a concluding chapter than should be expected. Simply identifying and defending the moral framework is no easy feat. I am confident DeHart could fill a second volume exploring facets of the “So what?” question. Perhaps that volume is in the works. I hope so because DeHart’s moral framework is rife with consequences.

Turning from the substantive to the purely stylistic, DeHart takes a Glossators-like approach to footnotes, which will satiate some readers and distend others, and he is guilty of overwriting at times. Apropos, “One might explain passive rights in this way: to say any person x has a right to some thing r means that some person y has an obligation to provide r to x. That is . . . N’s right to benefit from X doing Z arises from X’s obligation to do Z. X’s obligation to perform some duty, some action Z, that benefits N, leads to N’s right. I cannot see what sense it makes to say that these sorts of rights are natural” (pp.216-17). Nor can I. This is an admittedly superficial complaint, but one that deserves mention because of the priority the author places on simplicity when identifying the Constitution’s presuppositions.

Nitpicking aside, DeHart’s book is to be commended on many fronts. The analysis is thorough and convincing. The prose is Socratic, but its self-revelatory tone more than compensates. One is reminded time and again that while DeHart’s research question is a [*210] fairly simple one – what moral framework does the Constitution presuppose? – his answers reveal a philosophical complexity to the document that will enrich his readers, indeed at times surprise them. This is an important book that deserves wide readership in political science and law. It hastens us to lift our gaze from the proximate and clamor to consider anew the rationale beyond the Constitution, and relatedly, its potentialities and limitations.

REFERENCES:
Ely, John Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge: Harvard University Press.

Lutz, Donald S. 1988. THE ORIGINS OF AMERICAN CONSTITUTIONALISM. Baton Rouge: Louisiana State University Press.

McDonald, Forrest. 1985. NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION. Lawrence, KS: University Press of Kansas.

Pangle, Thomas L.. 1988. THE SPIRIT OF MODERN REPUBLICANISM: THE MORAL VISION OF THE AMERICAN FOUNDERS AND THE PHILOSOPHY OF JOHN LOCKE. Chicago: University of Chicago Press.

---

© Copyright 2009 by the author, Jason Pierce.

Continue Reading...

ELOQUENCE AND REASON: CREATING A FIRST AMENDMENT CULTURE

By Robert L. Tsai. New Haven & London: Yale University Press, 2008. 216pp. Cloth. $45.00/£25.00. ISBN: 9780300117233.

Reviewed by Ruthann Robson, City University of New York School of Law. Email: robson [at] mail.law.cuny.edu.

pp.202-205

The forty-five words of the First Amendment have been subject to extensive exegesis, especially in the last one hundred years. Freedom of speech, freedom of the press, and freedom of religion are concepts that are posited as essential to the United States and to democracy. Yet judges, politicians, theorists, and most everyone else recognizes the relativity and elasticity of the principles expressed in the First Amendment.

An associate professor of law at American University, Washington College of Law, Robert Tsai observes that “evocative metaphors abound in First Amendment thought” (p.23). In ELOQUENCE AND REASON, he argues that constitutional metaphors are not basic-level metaphors integral to intelligibility. Instead, Tsai contends that First Amendment metaphors such as “bulwark of liberty” are “second-order metaphors” that “elaborate and psychologically legitimate a set of foundational ethics and frameworks for governance” (p.25). Tsai explains the principal aim of his book as being to “present a general theory to explain how the words in the Constitution ratified by a distant generation become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans” (p.ix).

As a “prominent example” of his thesis, Tsai explicates Justice Scalia’s culture war metaphor, “unleashed first in ROMER v. EVANS and later recycled to great effect in LAWRENCE v. TEXAS” (p.26). ROMER (1996), and LAWRENCE (2003) both involved issues categorized as gay rights and neither invoked the First Amendment, except in the most oblique manner: ROMER was a constitutional challenge to Colorado’s Amendment Two to the state constitution which prohibited laws barring sexual orientation discrimination; LAWRENCE was a challenge to the Texas sodomy statute which criminalized “deviate sexual intercourse with another individual of the same sex.” Dissenting in both cases, in prose that has been described by a host of other commentators with adjectives such as scathing, Justice Scalia chastised the Court’s majority for rendering a decision that subverted the democratic processes. Tsai argues that critics who “would take Scalia to task for the bitterness of his prose often miss the deeper point,” which is that the terminology is “effective and eminently quotable precisely because it cuts to the quick” (p.27). As Tsai concludes, all “second-order metaphors make populist appeals; Scalia’s rendition of politics-as-war is simply more provocative than most” (p.27).

Later in the book, Tsai again discusses LAWRENCE v. TEXAS in a chapter entitled “War and Syntax,” connecting [*203] the case more directly with the First Amendment, noting that three of the four illustrations the majority opinion invokes to extend liberty beyond spatial bounds “can be traced to the First Amendment” (p.137). Tsai concludes that this rhetorical strategy “reflected a shrewd calculation,” because the language of expressive liberty fosters “broad social support” (p.137). Yet most of Tsai’s arguments are dedicated to discussing the vagaries of social support for expressive liberty.

For example, at the heart of the book is Chapter Three, “Linguistic Transformation,” in which Tsai explores two of the metaphors central to free speech, both generally attributable to Justice Oliver Wendell Holmes – the falsely shouting fire metaphor and the marketplace of ideas metaphor. After briefly discussing both metaphors, Tsai provides a synopsis of the central conclusions of the book: there is not necessarily any connection between the Constitutional text and the operative metaphors; this lack of connection has not “reduced” the “systematicity or durability” of the metaphors; and there is a “cumulative quality to the production” of the metaphors with a tendency to mix metaphors and deploy them to combat each other (pp.74-75).

Tsai also devotes attention to a central metaphor of the religion clauses, the wall metaphor of the separation between church and state. He discusses what he calls the “word-picture” created by the wall metaphor as stimulating “our senses on many levels” by fashioning conceptual dualities such as “peace:strife” and “strong:weak” (p.93). Tsai then discusses how the wall metaphor came to be “ridiculed” and “shunned” (p.107). He highlights President Regan’s 1983 speech to an evangelical convention stating that the founders “never intended to construct a wall of hostility” between church and state (p.101). Tsai contends that Regan’s formulation “would in short order become appropriated by the Supreme Court” (p.107). Reflecting on the transformation of the wall metaphor, Tsai draws four specific lessons. First, he argues that “the people themselves” proved receptive to complexity; a “bright-line approach can lose social support” when it fails to account for subtleties (p.107). Second, he concludes that “the linguistic regime is a participatory matrix,” in which no “single actor inside or outside the courts” is determinative (p.107). Third, he observes that “the features of any linguistic regime are interconnected” (p.107). Fourth and finally, just as there is “conceptual innovation,” there is resistance (p.108).

As Tsai demonstrates, the boundary between metaphor and doctrine is a permeable one. Tsai quotes Justice Reed in a relatively early Establishment Clause case, MCCOLLUM v. BOARD OF EDUCATION (1941), arguing against Jefferson’s “wall of separation between church and State” by stating that “a rule of law should not be drawn from a figure of speech” (333 U.S. at 247, Reed, J., dissenting) (p.95). Tsai, however, argues that “attractive prose can enhance the life-term of a doctrinal rule,” and likewise “an ungainly or controversial formulation can destabilize the most thoughtful arrangements of legal doctrine” (p.107).

Nevertheless, ELOQUENCE AND REASON would have benefited from [*204] more attention to specific metaphors and legal rules, as well as their inter-relationships. Metaphors may become “linguistic regimes” as Tsai theorizes (p.52), but they may also become clichés. An exploration of some of the lesser-known metaphorical constructions in the First Amendment would have enriched the book. Further, too often the text seems to hurry through the cases under discussion, skimming over the doctrinal and rhetorical nuances in favor of broad conclusions. The thesis is first articulated as an expansive one applicable to all constitutional language (p.ix), with an emphasis on First Amendment concepts, but the qualities that merited the special attention to the First Amendment are not adequately explicated. Moreover, for readers not familiar with the cases, it might seem as if all the cases under discussion, including ROMER and LAWRENCE (p.26), were decided on the basis of the First Amendment.

Additionally, I often longed for more detail and for more precision in the quotations and citations. For example, in the discussion of the fire metaphor, one reads: “Rejecting their First Amendment defense in SCHNECK v. UNITED STATES, Justice Holmes likened the defendants’ actions to ‘falsely shouting fire in a crowded theater’” (p.53). But despite the quotation marks encompassing the phrase “falsely shouting fire in a crowded theater,” this is not the language that appears in the official versions of Justice Holmes’ opinion in SCHNECK (1919). Rather, Holmes’ statement is “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” (247 U.S. at 52). The imprecision also occurs earlier in Tsai’s discussion (p.50), but it seems especially inexplicable given the sources in the footnote, including L.A. Powe’s excellent article “Searching for the False Shout of Fire,” from CONSTITUTIONAL COMMENTARY, and including Tsai’s own earlier law review article which reproduces the passage correctly (Tsai 2004, at 195). This may seem a triviality – and certainly a “panic” may connote a crowded venue – but in a text about language, a high degree of accuracy seems necessary.

My most serious misgiving about ELOQUENCE AND REASON, with its subtitle, CREATING A FIRST AMENDMENT CULTURE, is evinced by another quotation; this one is about totalitarianism attributed to Hannah Arendt (p.128). My apprehension is not connected to the accuracy or the substance of the statement, but to my realization that Arendt is the sole woman invoked in ELOQUENCE AND REASON, apart from a few mentions of Justice O’Connor and a handful of citations in the notes. The absence of women is noteworthy; it has been quite some time since I found myself hunting through a book of contemporary legal theory looking for any reference to any woman. Moreover, the lack of feminist theorizing on gendered speech and linguistics, as well as on specific aspects of the First Amendment including sexual speech and discriminatory speech, left me wondering whether women were to be included in “Creating a First Amendment Culture.” [*205]

REFERENCES:
Powe, L. A. 2002. “Searching for the False Shout of Fire,” 19 CONSTITUTIONAL COMMENTARY 345.

Tsai, Robert L. 2004. “Fire, Metaphor, and Constitutional Myth-Making.” 93 GEORGETOWN LAW JOURNAL 181.

CASE REFERENCES:
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

MCCOLLUM v. BOARD OF EDUCATION, 333 U.S. 203 (1941).

ROMER v. EVANS, 517 U.S. 620 (1996).

SCHNECK v. UNITED STATES, 247 U.S. 47 (1919).

---

© Copyright 2009 by the author, Ruthann Robson.

Continue Reading...

CRIMINAL IDENTITIES AND CONSUMER CULTURE: CRIME, EXCLUSION AND THE NEW CULTURE OF NARCISSISM

by Steve Hall, Simon Winlow, and Craig Ancrum. Portland, Oregon, USA: Willan Publishing, 2008. 264pp. Hardback. $84.95/£58.00. ISBN: 9781843922568. Paper. $37.50/£19.50. ISBN: 9781843922551.

Reviewed by Rixta Wundrak, Berlin 2/2009, Free University Berlin / Law in Action. Email: rixta.w [at] gmx.de.

pp.197-201

In CRIMINAL IDENTITIES AND CONSUMER CULTURE, Steve Hall, Simon Winlow and Craig Ancrum study the interrelation between the neoliberal capitalist system and criminal careers. Inspired by post-structuralist theories, a societal phenomenon becomes central to their perspective and investigation into this nexus: consumerism. The three authors, lecturers and researchers at Northumbria University, University of York, and University of Teeside in the UK, argue that consumerism (which is widely understudied in this context) should be a primary issue in criminological theory and anthropology. This book, which links critical theory and ethnography, makes an original contribution to these fields.

For the authors, consumerism is both a performative action in everyday life and a desire, an aspiration to live in the lap of luxury. In their description of the criminals’ habitus, the authors elaborate Zizek’s hypothesis that since the 1980s we witness a reorientation of the superego (2002). The traditional and moral imperatives of the superego – to believe in civilization and solidarity – have been replaced. Instead, the new “Western superego” (Ch.8) of consumer culture encourages individuals (the ego) to orientate themselves towards narcissism and enjoyment; they become trapped in a struggle to acquire and display “the core ethics of contemporary capitalism” (p.8).

These new societal ethics generate a particular relationship between marginalized people (living in a low socio-economic milieu) and consumerism: The more marginalized individuals are, the more they must display consumption to participate and ‘belong,’ and the greater is their desire for consumption. This relation is observable not only in excessive consumption but also in a tendency to drift into a world of dreams and imagination by help of drugs and consumption. The authors emphasize that “consumer culture is at root a belief system founded on the belief that one can perform the impossible task of actually becoming the imago with which one has narcissistically identified, and if one appears not to be this imago then this temporary situation must be false and it needs to be rectified as efficiently as possible with the means at one’s disposal” (p.217).

Closely connected to this central hypothesis is the authors’ differentiated view on labeling approaches. Hall, Winlow and Ancrum emphasize that ‘criminals’ do not show ‘different’ or ‘deviant’ behavior, and that a specific culture of criminals does not exist. Criminal activities are rather conceived [*198] as an ‘over-culturalization’ and assimilation to the dominant social order of consumer culture (cf. Heath and Potter 2007). Furthermore, the authors correct the widespread view that the desire for possessions and the accumulation of consumer goods (as well as their criminal appropriation) is related to materialism. It is not the material value of these goods but their symbolic power which is significant. Calling something of the ‘right’ brand your own and displaying it to others, are the most common and effective ways to socially differentiate and distinguish yourself.

The book is organized in nine chapters: The introduction (1) is followed by two chapters which detail the line of argumentation from societal changes and the resulting marginalization, leading up to consumption as a means of identification for individuals pursuing criminal activities (2 and 3). Here, they combine theoretical arguments and empirical illustrations. Chapter 4 reconstructs biographic careers of individuals adding depth to the hypotheses laid out in the previous chapters. After examining criminal careers and identification in detail, Hall, Winlow and Ancrum shift again to the theoretical level and discuss the phenomenon of consumption in the historic and socio-economic or political context (5). Chapters 6 and 7 reflect on the discipline of criminology from a critical, science philosophical perspective by uncovering myths on this topic that have become part of the discipline. Further criticism is directed against conservative or neoliberal currents within criminology (and its tradition respectively). Therewith, the authors’ “motivation behind” the ethnographic study is the “rehabilitation of criminology” (p.20). For this end, they take their time and space to reflect on the politico-economic embeddedness of criminology (as Bourdieu and Wacquant (1992) suggest for sociology). The conclusions (Ch.9) connect consumerism and crime in the wider historical context, theoretically framed by Hall’s “pseudo-pacification process” (Hall 2007).

The book takes the reader into the life-worlds of low-level criminals, dealers, and regional ‘gangsters’ living in areas affected by permanent economic recession in the northeast of the UK. Primarily, the authors make use of their ethnographic observations by focusing on the interviewees’ self-presentations: their appearance, behavior during the interview, and their narrations concerning their past activities. A typical portrayal pictures a young man who grows up in conditions of severe poverty. Lacking structures of security within his family and without any substantial educational background, he gains access to criminal youths who become his peer group. This predetermines his further career: drug dealer scene, recurrent instances of theft/burglary, imprisonment, rapid shifts between rising and falling: a risky life. Long phases of hardship, characterized by poverty and criminality are often disrupted by short, extravagant, excessive phases. He presents himself as if he had no influence on the course of his biography. He takes a fatalistic stance: Everything is down to luck. He takes a pragmatic-utilitarian perspective on his activities (drug dealing, thievery, and the like). He does not argue, but narrates; he neither reflects nor moralizes his actions and behavior. He [*199] amasses money and, once he proved successful in it, leads a hedonistic life. For him, the natural and fundamental rule of life (and, in general, of the social world) requires him to be egoistical, ruthless, neglectful of solidarity, and acting to serve his own interests only.

The accounts of the authors’ ethnographic observations and interviews are very refreshing but also invite some criticism. Unfortunately, we are not offered details of the sample as the authors highlight their wish “to protect” the interviewees (p.18). Although the (global and Western) “economic change” (p.21ff) and its effects on marginalized people living in deprivation are particularly detailed and elaborated, we do not learn anything about the concrete socio-economic and milieu-specific context of the interviewees.

As welcoming as it is that the study stands out due to rich, in-depth and extensive ethnographic research, the more regrettable it is that the authors withhold an explanation of their methodological approach. The reader is left with the authors’ statement that they have only a “passing interest in the institutional rules of criminological empiricism” (p.20), and that they are “not especially concerned about the restrictive doctrines of contemporary social research” (ibid.). Here, the authors distance themselves from opportunistic academics or an apolitical, ‘pure’ science, but at the same time it is not transparent to the reader, how hypotheses and interpretations are developed.

I would like to illustrate my remarks with a look at one interview extract (Ch.2, p.34) presented in the book. Karen (24) is a sex worker and uses drugs, but disagrees with the basic presumption that her ‘profession’ was a result of her drug addiction (p.34). To the contrary, she explains that she consumes drugs to avoid having “to think about what smelly man [she is] going down.” She tells us that she chose this job to get what she needs: money. With the money she earns she can afford luxury items: designer clothes, a spacious flat, and valuable furniture. Hall, Winlow and Ancrum take her statement as a “utilitarian explanation” (p.35), framing her sex work as “a means of acquiring the cash to fund another consumer binge” (ibid.). According to the authors’ interpretation, Karen does not think morally/ethically. Similar to the other interviewees, she chooses ‘criminal’ activities in order to get what she aspires to, namely, a luxurious life.

Here the reader encounters an exceptional example from the sample which is otherwise predominantly composed of male burglars and drug dealers. However, this aspect is not elaborated and no further details are provided. Karen’s job as a prostitute is not explicated: neither its embeddedness in society, nor its relation to low-level criminality, nor the question whether prostitution is a crime, are addressed. This example raises questions as to how the sample of criminal identities was constituted and what criteria were relevant for the selection. The authors may have considered the link between consumer culture and sex as merchandise – the female body as a consumer good – to be sufficient for their purposes. [*200]

Alternatively, a methodology that analyzes lived experience more in-depth (Presdee 2004) would make interpretations more comprehensible. In this sense, dwelling on Karen’s narration, we can note the justifications for her job which permanently, albeit latently, run through her account. She stresses that she has chosen this occupation herself because she has decided for a life without poverty and desolation. The authors do not explore what this argumentation at present means for her life as experienced. Depending on whether one stresses the fear of poverty (conditioned by socialization) as a driving force for Karen’s argumentation at present or whether one highlights the ‘addiction’ to consumption as the essential feature of this extract, the quote acquires a different connotation and may generate different hypotheses (Rosenthal 2006). More generally, the question arises as to why narcissism and the pursuit of individual ‘indulgence’ have to be exemplified by women like Karen or by low-level criminals at all.

Criminal identities are – following some examples of this book – presented as pieces in the puzzle of consumer society. They are fixed, blend in, fit, and thus, complement the picture of a pathological, unsocial society. With a more process-oriented view one can ask: how do criminal biographies vary and alter? Some interpretations leave the reader with just the impression that cultural criminologists actually want to counter, namely to reproduce the labeling of criminality (cf. Featherstone 1995).

Hall, Winlow and Ancrum anticipate the objection that their portraits were one-dimensional (p.192). They justify their findings by emphasizing that “compared to consumer culture and a few vestigial aspects of local traditions, the influence of alternative sociocultural institutions – regional traditions, community, education, religion, politics and so on – on our interviewees’ world-views was, to say the least, minimal” (p.192). This can be considered as the central and essential result of the study.

Criminologists should take this book as an invitation to investigate how criminal biographies are processed differently in the context of capitalistic systems. The more weight such an approach and interest acquires, the better we can understand crime in a wider social context. It should be stressed that the authors contribute to a synthesis of critical, post-structuralist theory and first-hand empirical observation. Citing their interviewees and offering insights into their ethnographic observations add zest to the book. Hall, Winlow and Ancrum provide important incentives to scholars to formulate critical hypotheses which are grounded empirically. It is an essential reading for both students and advanced scholars of criminology and sociology interested in critical theories of crime and deviance.

REFERENCES:
Bourdieu, Pierre and Wacquant, Loïc, 1992. AN INVITATION TO REFLEXIVE SOCIOLOGY. Cambridge: Polity Press.

Hall, Steve. 2007. ‘The Emergence and Breakdown of the Pseudo-pacification Process.’ 6 PARALLAX 36-53. [*201]

Featherstone, Mike. 1995. UNDOING CULTURE, GLOBALIZATION, POSTMODERNISM AND IDENTITY. Newbury Park, CA: Sage Publications.

Zizek, Slavoj. 2002. HOW TO READ LACAN. London: Granta.

Presdee, Mike. 2004. ‘The story of crime: biography and the excavation of transgression.’ in Jeff Ferrell, Keith J. Hayward, and Wayne Morrison, CULTURAL CRIMINOLOGY UNLEASHED. Oxford: Routledge Cavendish, 41-49

Rosenthal, Gabriele. 2006. ‘The Narrated Life Story: On the Interrelation Between Experience, Memory and Narration.’ In K. Milnes, C. Horrocks, N. Kelly, B. Roberts, and D. Robinson (eds). NARRATIVE, MEMORY AND KNOWLEDGE: REPRESENTATIONS, AESTHETICS AND CONTEXTS. Huddersfield: University of Huddersfield Press, 1 -16

---

© Copyright 2009 by the author, Rixta Wundrak.

Continue Reading...

BLACK AND BLUE: AFRICAN AMERICANS, THE LABOR MOVEMENT, AND THE DECLINE OF THE DEMOCRATIC PARTY

by Paul Frymer. Princeton: Princeton University Press, 2007. 224pp. Cloth. $50.00/£35.00. ISBN: 9780691130811. Paper $24.95/£17.95. ISBN: 9780691134659.

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

pp.192-196

Paul Frymer’s excellent book on the consequences of seventy years of isolating racial discrimination from labor law is part of the “Princeton Studies in American Politics: Historical, International, and Comparative Perspectives,” edited by Ira Katznelson, Martin Shefter, and Theda Skocpol. The logic of its inclusion in this series is found in Frymer’s explicit attempts to integrate the schools of New Institutionalism and American Political Development, as well as the theory of intersectionality, within his research. Frymer has an immense agenda for this book; while he is able to address all of his stated themes, it leaves the reader wanting a greater development on each aspect. He explicitly recognizes that a portion of his findings provide new insight into the development of civil rights law and the diminishment of the labor movement, and he also engages in a significant degree of theory-building in the second part of the book. He not only encourages the reader to reconsider the lessons of state-building during the New Deal and our understanding of the changing role of the federal courts in policy making, but he seeks to have political scientists confront the limitations of how we currently study these institutions.

While some excellent research has been conducted exploring the history of African Americans in the labor movement and during the New Deal (Kelley 1990; Sullivan 1996), within political science this has resulted in the following historical narrative: legislative change, followed by a strategy of litigation, resulting in union desegregation. Frymer makes a compelling case that when we deliberately set about to integrate race and class within the civil rights and labor narratives, we find that they are not sequential, but intertwined. He asserts that the institutions created to help democratize class – the Wagner Act of 1935 and the National Labor Relations Board (NLRB) – and race – Title VII of the Civil Rights Act of 1964, Equal Employment Opportunity Commission (EEOC), and the Federal Employment Practice Committee (FEPC) – did not work coherently to prevent racial discrimination in unions while simultaneously advancing the workers’ power. Instead they were striving at cross-purposes and cross-agendas. As a consequence, the role of the federal courts in enforcing civil rights legislation is much larger and significant than previously understood; its result, according to Frymer, was the gutting of the labor movement and the subsequent decline of the Democratic party. This is an intriguing argument and one that substantially bolsters the contention that racism in America is institutional, [*193] despite the continued emphasis on personal attitudes. In the introductory chapter, Frymer seems to imply these choices were the result of arrogance and poor judgment on the part of civil rights organizations and the judiciary. As his narrative unfolds, however, it becomes evident that he believes that the legislation establishing these institutions, the internal cultures of the NLRB and EEOC, as well as the subsequent choices made by Congress, rendered a strong judicial role inevitable.

In Chapter Two, “The Dual Development of National Labor Policy,” Frymer demonstrates that national labor policy was of a “profoundly bifurcated nature” (p.23), in which labor relations law was divorced from civil rights law. Labor law – formed under the initial authority of the Wagner Act – allowed the NLRB to challenge discriminatory actions against workers only based on their union organizing activities, not actions founded on such protected status as race or gender. Frymer notes that, because civil rights was not a fundamental tenet (or even tertiary one) of the New Deal, when we incorporate race to our history of the Wagner Act and the New Deal, we are led to not simply a more complicated interpretation of the New Deal and its legacies, but a completely revised understanding. Because the NLRB consistently refused to challenge unions on issues of racial discrimination, for several decades civil rights organizations tried to challenge NLRB policy through the legislature to no avail. In addition, there was continuous and unresolved debate within the executive branch over where the civil rights oversight of union activities should be institutionally placed. Frymer argues that the logical consequence of this confusion is that one of the largest democratizing movements in United States history emerged from the judiciary.

In Chapter Three, “The NAACP Confronts Racism in the Labor Movement,” Frymer contends that NLRB avoidance of racial discrimination in the local unions and the Department of Labor’s and the EEOC’s basic obliviousness toward union culture resulted in civil rights groups relying on litigation to desegregate unions. According to BLACK AND BLUE, the subsequent court decisions had a clear unintended effect of undermining unions, but also resulted in racial integration and increased African American representation (he addresses early in the first chapter his narrow focus on the African American experience). Although unions were the most engaged of all non-civil rights organizations in supporting civil rights activities, the local chapters of unions were often in the forefront of resistance to desegregation and integration. In addition, like many leftist structures in the early to mid-twentieth century, union officials saw racism as secondary to economic equality. The NAACP, similarly structured with a national organization creating policies to guide relatively autonomous local chapters, struggled with its own stance toward organized labor. Conflict between the two intensified as union leaders began to believe that civil rights lawyers were so focused on integrating unions that they would do it at the cost of unions’ potential destruction, especially since local African American union members were forming radical movements designed to address economic [*194] restructuring, rather than integration. Frymer argues that the existing bureaucratic and statutory structure “was ill-suited to respond to this situation. Thus as the civil rights movement confronted workplace inequality and the federal government reacted tepidly, the continuing resistance of unions to civil rights reforms eventually led to the activism of courts and lawyers. In doing so, the American state – dominated by regulatory agencies directly accountable to elected officials – was again revised (if not replaced) by politics though courts” (p.69).

The fourth chapter, “The Legal State,” examines both the structural changes to the courts and the litigation activities of civil rights organizations, which merged to construct a new institutional relationship between the judicial and legislative branches. Frymer is particularly observant of the literature that examines the constraints on legislators preventing the enactment of radical new social policies, noting that a consequence may be that legislators are willing to hand decision making off to the judiciary. Throughout this chapter, Frymer reiterates the need for American Political Development-oriented scholars to explore the judiciary (particularly state and lower federal courts) through the same institutional framework currently reserved for executive and legislative branches:

Because scholars do not see the courts as institutional actors, they identify the courts’ influence – narrowly conceived through jurisprudence – as merely one of veto. Courts, in this view, are an obstacle to the development of a regulatory state which is itself controlled by elected officials. Court power is thus juxtaposed to democratically controlled state power: elected officials try to promote state development, and courts try to stop it . . . .

But we begin to see how the legal system has become one of the most powerful agents of state power when we explore the expansion of the law as an institution, not just in terms of Court decision but in terms of the increased scope of the legal profession, the expansion of legal rules and procedures in the litigation process, and the additional weapons given to lawyers and judges to wield influence (pp.74-75).

While we may quibble with his broad characterization of the literature on judicial development, he does an excellent job demonstrating how changes in the policies and procedures regulating the courts, the evolution of the legal profession, and the political context in which they were operating merged to force labor unions to integrate. For Frymer, it was these “non-ideological and purely institutional factors” and not a policy decision by the NAACP that led to the choice of litigation as the primary strategy directed toward desegregation. Once litigation and the use of damages for past discrimination was accepted by the judiciary as a legitimate tool to address racial discrimination, unions had no choice but to respond or “bleed to death” through the payment these extensive economic costs (p.91). Judges created new tools, with legislative support, in order to demand compliance from the unions (and other institutions), including: establishing special masters, requiring payment for damages, granting attorney fees, and providing back pay. “The Constitution may provide elective officials with institutional weapons that it denies to courts, but with these weapons came significant institutional [*195] constraints on the ability of elected officials to be active policy makers, particularly on civil rights. No political branch, then, is either “hollow” or perfect, as each provides activists different opportunities and constraints that vary with historical and political context” (p.94). Intriguingly, the lesson Frymer draws from these observations is that, while the courts may be best suited to make policy under certain conditions, no branch of government is equipped to address intersectional issues of conflict – such as race and class.

The penultimate chapter, “Labor Law and Institutional Racism,” focuses on the limitations of our current understanding of racism as individualized behavior merely reflected by the law. Instead, BLACK AND BLUE challenges our current understanding of the relationship between institutions and racism. Frymer promotes a new “institutional understanding of individualized racism” (p.103), which has four key components: 1) through incentives and influences institutions can actively promote racist actions; 2) institutions empower actors, allowing them to shape agendas and influence the behavior of others; 3) institutions can influence the degree of freedom racist actors have for self-expression; 4) individual expressions of racism have different degrees of significance based on their institutional context. Frymer concludes that if racial acts are located within institutional conflict, societal racism is “not intractable but malleable and politically determined” (p.106). He tests this assertion through an examination of the NLRB published cases from 1935-2000, compared with decisions rendered in the federal courts, concluding that “[t]he Board sees racist acts as engrained in and a product of institutions and focuses on the actors responsible for prompting the racist act. By contrast, courts, in viewing racist acts as the irrational animus of racist individuals for behavior beyond the bounds of acceptable politics” (p.107). The institutional approach to racism demonstrated by the NLRB is offered as a competing theoretical model to the more traditional personal behavior approach generally adopted by social scientists.

Finally, in the chapter entitled “Law and Democracy,” Frymer turns to the questions of how this alternative interpretation of the empowerment of post-New Deal federal courts should influence judicial scholarship. Most importantly, he challenges – in a different fashion than the usual rejoinder – Alexander Bickel’s “countermajoritarian” critique. While he traces the recently revised perspective of many progressive legal scholars as to the appropriate role of the courts in policy making, Frymer argues that an institutional perspective recognizes that both the legislature and the courts inevitably have policy-making functions in a democratic society. BLACK AND BLUE is a powerful demonstration of how a different theoretical paradigm can result in new interpretations of not only historical events, but current understandings of both racism and judicial legitimacy. Although there are many unanswered questions resulting from this intriguing book, it offers some fruitful new directions for the burgeoning scholarship in intersectionality, as well as continuing in the traditions of American Political Development and New Institutionalism. [*196]

REFERENCES:
Bickel, Alexander M. 1962. THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. New Haven: Yale University Press.

Kelley, Robin D.G. 1990. HAMMER AND HOE: ALABAMA COMMUNISTS DURING THE GREAT DEPRESSION. Chapel Hill: University of North Carolina Press.

Sullivan, Patricia. 1996. DAYS OF HOPE: RACE AND DEMOCRACY IN THE NEW DEAL ERA. Chapel Hill: University of North Carolina.

---

© Copyright 2009 by the author, Michelle D. Deardorff.

Continue Reading...

DYING INSIDE: THE HIV/AIDS WARD AT LIMESTONE PRISON

by Benjamin Fleury-Steiner with Carla Crowder. Ann Arbor: the University of Michigan Press, 2008. 248pp. Cloth. $27.95. ISBN: 9780472114290.

Reviewed by Sawyer Sylvester, Department of Sociology, Bates College. Email: ssylvest [at] bates.edu.

pp.188-191

The latest data from the Bureau of Justice Statistics indicate that there were 1,598,316 people in state and Federal prisons on December 31, 2007, mostly men. The imprisonment rate, the number of prisoners per 100,000 residents, was 506. One person out of 198 in the United States was in a state or Federal prison. The current imprisonment rate for white males is 481. For African-American males, the rate is 3,138. If the inmates of all other penal custodial facilities are added, the total population incarcerated is over 2.4 million (West and Sobol 2009).

Some have claimed that the United States has attained the distinction of having a larger proportion of its population in custody than any other country. It has also been suggested that the striking growth in our prison population stems from the use of incarceration as the weapon of choice in first the “war on crime” and then the “war on drugs.” Whatever the cause, the large and growing inmate population brings with it large and growing costs to those involved in housing, feeding, and providing health care for those inmates. One strategy an increasing number of jurisdictions have adopted is simply to transfer one or more of those tasks to private contractors, or to transfer the entire responsibility to a private prison. The percent of prisoners held in private prisons has increased steadily. In fact, the largest increase in use of private prisons in the last year was in the Federal system. Even if the government retains custody of the inmate, important elements of care may still be farmed out to private contractors, among the most important of which would be health care. And this could be particularly critical if it occurred in regard to an especially vulnerable group of inmates. This is precisely what happened to prisoners in the AIDS ward at Limestone Prison in Alabama and is the subject of DYING INSIDE.

At the beginning, Benjamin Fleury-Steiner and Carla Crowder make it clear that their work is not designed to be an exposé of a single institution, despite the horrific conditions they describe there. It is better seen as an “ideal type,” as a representation of the consequences of burgeoning inmate populations and the lack of will or capacity of governments to shoulder the burden of the consequences. Furthermore, Fleury-Steiner and Crowder see the cost-cutting, bottom-line approach to medicine at Limestone as a reflection of the trend toward corporate, for-profit medicine in the larger community. Two factors make this trend particularly acute in prisons. The first is that the particular resistance to oversight in prisons themselves is only exacerbated when a function is placed in the hands of a private contractor with even less responsibility [*189] for keeping records and releasing information about procedures for which they could be held accountable. The second is that the intrinsic nature of prison management is at odds with good medicine and its necessary concern with the individual prisoner and his or her clinical crisis. When the reigning philosophy of the prison is security, this is focused on what Erving Goffman calls the “batch living” characteristics of the inmates. Once targeted clinical care for the individual falls victim to security, it can result in minimal care for the “batch.” The individual patient leaves the scene, and cost cutting for the prisoner group becomes easier. This is part of what the authors call “a more overriding emphasis on waste management over rehabilitation.” Fleury-Steiner and Crowder link this “waste management” model, in great part, to the general trend in corrections which involves a rather simplistic version of rational choice theory, leading to a just desserts model of corrections.

They also note that some have suggested the racial disproportion in mass incarceration is the result of conscious efforts to marginalize segments of the African-American population for both ideological as well as economic reasons. Others suggest that race proxies for so many of the non-racial factors commonly associated with crime (and victimization) – income, urban location, education, level of police scrutiny, access to legal talent – that these alone might explain the racial disproportion in incarceration. Whatever the reason, DYING INSIDE reveals that the criminal justice system selects for incarceration, in great measure, the poor, the underinsured, and the chronically ill and then provides these, the most needy, with the worst of medical care.

One might assume that even a prisoner would have some legal remedy against his keepers for intentional mistreatment or outrageous neglect, including medical malfeasance, and that the courts would act as the protector of last resort. But recourse to the courts has faced varying degrees of difficulty throughout the history of corrections. Some have characterized much of that history before the 1960s as being governed by a “hands off” policy, reflecting a general unwillingness of courts to intrude into the management of prisons. That policy began to unbend to a degree in the 1960s and 1970s with the US Supreme Court’s willingness to see “deliberate indifference” on the part of an institution to prisoners’ harm as triggering an Eighth Amendment claim. Around the same time, an active prisoners’ rights movement grew up. Had this growth continued unchecked, it might have been an effective means for correcting some of the major deficiencies in prisoner health care. However, as the authors point out, there was a strong reaction against prisoner litigation, seen as mostly frivolous and brought by unworthy plaintiffs. One of the results of this kind of sentiment was the passage by Congress of the Prisoner Litigation Reform Act (PLRA).

The PLRA not only caps attorneys’ fees in prison litigation but also perpetuates a mandate that litigants must exhaust all administrative remedies before resorting to the courts. I suspect the latter requirement may not be unique to prisoner litigation, but the combination of the two can be a severe hindrance. The effect of the cap on fees is obvious [*190] for a largely impoverished client base. But when combined with the need to maneuver through every inch of the administrative process, it becomes a major hindrance to relief.

In the face of these limitations on direct litigation, Fleury-Steiner and Crowder devote a chapter to an exploration of the techniques of public advocacy short of litigation. This is a technique which prisoner rights groups have used to pressure and persuade institutions to make necessary improvements in care for inmates – techniques necessary in light of the obstacles to litigation. However, in the case of Limestone, the Alabama Department of Corrections had been particularly resistant in making necessary changes. The Southern Center for Human Rights found it necessary to file suit in Federal court. A settlement was eventually reached with the approval of the court. But the history of its implementation was another example of administrative foot dragging by the Department of Corrections and evasive tactics by the private health care provider. This created the need for yet another lawsuit, partly successful, partly not. The reasons for this only partly successful outcome occupy the latter part of the book.

The approach toward AIDS patients at Limestone is described by the authors as “lethal discipline” because of three qualities. First, in such a poorly funded and staffed facility, the practice of keeping full patient records is soon abandoned as care becomes minimal. Second, the not uncommon tendency of AIDS patients to refuse medication is met with unquestioning acceptance rather than any real effort to educate patients on the need and usefulness of medication, even in terminal cases. Third, the similarly ready acceptance of DNR status for patients is done without the counseling and advice to the patient more common in the outside community. All of these are the consequences of a medical system which the authors describe as staffed by too few and working with too little.

Among the obvious answers to such deficiencies would be to get the state to fund medical services in prisons far beyond their current level. However obvious, it is not likely to happen. States are currently having difficulty funding the engorged prison systems they have and providing basic security – the one thing for which the public holds them accountable. One could continue case-by-case litigation and advocacy. But the Limestone experience is an example of how success in these efforts can be partial and temporary. A third solution would be simply to release a significant number of inmates into the community. In some places this is already being done. But the problems with this approach abound. With the devaluation of treatment programs in general, a released prisoner will find little post-incarceration support in the community. And to release any prison inmate to the community in an era of high and growing unemployment deprives that inmate of what is likely to be the most important contribution to his success in the community – meaningful work.

At the end of DYING INSIDE, Fleury-Steiner and Crowder suggest a more global, although still politically difficult, strategy. Simply imprison fewer people. If our penal philosophy had a purpose beyond risk management through incapacitation, and our prisons were seen [*191] again as centers for rehabilitation wherever possible, then they might be considered as scarce resources to be used only when necessary or for those who deserve it most. In addition, a larger portion of offenders might be adequately dealt with in the community – providing we were willing to spend the resources there. The recent trend toward community policing and community courts might prompt a renewed interest in community corrections. Spending resources in the community to correct conditions, including health conditions, which seem to be linked to criminal offending is not exactly a new idea for crime prevention. It simply has been greatly overshadowed during our period of mass incarceration. All of this is expressed or implied in DYING INSIDE.

On the book in general, there are some aspects with which some might take issue. The book moves rather rapidly over many subjects and sources – case studies, quotations, data, arguments – sometimes, without much transition. But, as a whole, the book is compelling. At moments, the language leaves the analytical and verges on the polemical. The authors clearly have an axe to grind. But it is a worthy axe, and they grind it well. In fact, the combination of empirical analysis, reportage, and advocacy is in the best tradition of American sociology. This is a thoughtful and useful book.

REFERENCES:
West, Heather C., and William J. Sobol. 2009. PRISONERS IN 2007. Washington, DC: Bureau of Justice Statistics.

---

© Copyright 2009 by the author, Sawyer Sylvester.

Continue Reading...

COUNTERTERRORISM: DEMOCRACY’S CHALLENGE

by Andrea Bianchi and Alexis Keller (eds). Oxford, UK, and Portland, OR: Hart Publishing, 2008. 438pp. Hardback. $115.50/£55.00. ISBN: 9781841138183.

Reviewed by Andrew Lynch, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales. Email: a.lynch [at] unsw.edu.au.

Vol. 19 No. 3

Timing is everything in publishing. The impact and importance of a book is not simply determined by its quality but also the prevailing circumstances when it reaches its audience. The publication of COUNTERTERRORISM: DEMOCRACY’S CHALLENGE – an extremely well-written and generally thoughtful collection of essays edited by Andrea Bianchi and Alexis Keller – in the latter half of 2008 is a powerful demonstration of this principle.

Through no fault of any of the contributing authors, the standing of this book is undeniably altered by the curtain falling over the final days of the administration of George W Bush. Although it remains far too early to assess the extent to which President Obama will, in the context of national security, substantially deliver on his campaign platform of change, we have clearly broken with the recent and dismal past. Obama’s attitude to the conflicts of Iraq and Afghanistan and his almost immediate action taken to close down Guantanamo Bay are themselves sufficient evidence that both the dominant rhetoric and policy basis have fundamentally shifted. The ‘war on terror’ has been thoroughly discredited and met its demise.

Terrorism remains, of course, a very real danger which liberal democracies must confront and quell. The devastating attacks in Mumbai towards the end of 2008 are themselves a terrifying illustration of this fact. The essays in this book certainly have plenty to say on this challenge, but as several of them are written in response to the extreme and grievously harmful policies of the Bush administration, it is difficult for the reader not to feel that with its departure, they have been robbed of their urgency. The essays predominantly offer a powerful condemnation of the policies and laws implemented by the United States since September 11. Three or four years ago, this book would have packed a serious punch. Now, much of it reads more like an examination of our recent past.

This hardly renders irrelevant the efforts of all involved in this project. Far from it – we are going to be trying to make sense of the opening years of the 21st Century for many, many years. It is vitally important that contemporary analysis of the Western world’s response to 9/11 continue to be published and debated. As Adam Roberts, the author of the first chapter in the book, says with perspicacity, “the tendency to approach terrorism without benefit of history has, itself, a long history” (p.12). Perhaps the only worthwhile legacy to hope for from recent failures is to ensure that, this time, the lessons are heeded as we move forward from here. Reading [*183] COUNTERTERRORISM: DEMOCRACY’S CHALLENGE in this light, there is no doubt that it will be an important resource for those who continue working in the area of legal responses to the threat of terrorism – and also those who will come to it in the years ahead.

The book is divided into three distinct parts. The first consists of four chapters which aim to provide the reader with an historical perspective on the fight against terrorism. After a ubiquitous dissection of the definitional problem, which Roberts resolves in an entirely practical and satisfactory way, his chapter proceeds on the quite reasonable basis that, although today’s terrorist threat involves a combination of elements many of which are new, it is however a “huge mistake” (p.14) to brush aside earlier historical experience as somehow irrelevant. He then lists ten propositions derived from earlier terrorism campaigns. I do not disagree with his inclusion of any of these entries, but some clearly stand out. His first, that the relationship between terrorism and democracy is frequently complex, is probably the most important and least understood and could easily sustain a much longer examination (see, for example, Ross 2004). Amongst the other lessons is one which governments have been reluctant to even countenance in recent times – the need to address underlying grievances. Roberts makes the valuable point that “to refuse all changes on an issue because a terrorist movement has embraced that has a justification is actually to allow terrorists to dictate the political agenda” (p.20). Lastly, his reminder of the importance of observing the constraints of domestic and international legality – and indeed the political desirability of doing so, is a proposition that runs through every later chapter in the book.

Of course, it has been this very idea that has been most under threat over the decade, as governments have sought to justify throwing off the shackles upon their own power in the name of national security. How impressive then to read several contributions in this volume which explore the factors which lead to the end of terrorist groups and their violent campaigns. Of these, Audrey Kurth Cronin’s chapter is most similar to that of Roberts – she also identifies the developments which make ‘new’ terrorism different from what preceded it – but she offers a very specific analysis of the ways in which political violence of non-government actors is brought to an end. Reflecting Cronin’s background as a Professor of Strategy at the US National War College, her take on these issues is noticeably hard-headed in comparison to some of the other offerings here. But she shares the conviction of her fellow contributors that steps which are taken by governments ‘that feed into the world-view of [terrorist] groups and thereby increase their legitimacy’ (p.107) are fundamentally unhelpful. In his chapter, Paul Wilkinson echoes Roberts by identifying almost every domestic and international strategy which the Bush administration pursued under the rubric of the ‘war on terror’ as meeting this description – especially Guantanamo Bay and the insistence on extra-judicial procedures for its inmates, and the public relations disaster of Abu Ghraib and the White House’s attitude toward torture and the treatment of its prisoners. While Wilkinson admits that no single model of response by a liberal state can alone suffice to deal with terrorism of [*184] the sort practiced by Al Qaeda, a commitment to the criminal justice model as much as possible is his final recommendation. He recognises that some terrorism threats necessitate the deployment of the military but stresses that the risks this poses must constantly be borne in mind. At all costs, over-reliance on the military by the executive and the normalisation of its presence in civilian life is to be avoided.

The one chapter in the first part of the book which seems an odd fit is that provided by one of the editors, Alexis Keller. His stated purpose is to pinpoint both the liberal and republican claims in the debate about emergency powers by focusing on the constitutional theory of both Montesquieu and Rousseau and by considering their definition of ‘legitimate emergency.’ What follows is indeed a direct consideration of the philosophy of each and this certainly clarifies much of the history of this thorny jurisprudential area, but the conclusion to the chapter only emphasises its strange remoteness from more recent contributions to the debate (e.g., Dyzenhaus 2006; Gross and Ní Aoláin 2006). It seems churlish to criticise a chapter as good as this and which appears in a part dedicated to historical considerations, on the ground that the author might have made greater efforts to connect his discussion to recent events, but Keller’s failure to do so does rather set his work apart from that of the other chapters in Part One.

An interesting theme which bubbles away under these early chapters is European incomprehension at the American response to terrorism since 9/11. Only Cronin, the sole American contributor in this part, fails to make some mention of this. It is enormously interesting then, at the start of Part Two, to turn squarely to the jurisdiction of the United Kingdom – a country with a long history of terrorism but also America’s staunchest ally in the foreign operations conducted as part of the ‘war on terror.’ Dominic McGoldrick’s chapter is titled ‘Terrorism and Human Rights Paradigms - The United Kingdom after 11 September 2001,’ and this is no idle promise. At 120 pages long, McGoldrick’s chapter gives readers a detailed coverage of the UK experience. For readers who have followed developments there closely, much of this will seem largely descriptive, but even for such an audience it is indubitably a beneficial and succinct account for future reference. McGoldrick strongly conveys the shifting dynamic between the arms of government under the Human Rights Act 1998 and the precarious status of the new constitutional settlement due, in no small part to competing appeal of enhanced state security (see also Gearty 2006).

The emerging role of the judiciary in the United Kingdom is a topic which substantially contributes to two other chapters in Part Two. Eyal Benvenisti attempts, with only moderate success, to place the recent case law from the House of Lords on security matters in a broader comparative perspective. His argument that national courts have proved less than compliant on security matters and have instead sought to establish a dialogue with the political arms of government is borne out by some judicial decisions but not necessarily all. In particular, the 2007 House of Lords decisions reviewing several control orders issued over suspected terrorists have attracted stern criticism from some [*185] who see the protection offered by the judiciary as largely illusory (Ewing and Tham 2008). That may well be an overstatement – but then so, it appears to me, is Benvenisti’s claim that instances of judicial assertiveness are evidence of ‘an emerging trend of coordination amongst the highest courts of several democratic states’ (p.275). In offering a comparative study of judicial deference to executive security actions, Iain Scobbie’s chapter addresses very similar considerations to those covered by Benvenisti, but as it is not as ambitiously pitched, the result is a more sober analysis of commonalities and differences in how superior courts in the same jurisdictions have been performing. It is a little premature to elucidate anything approaching a ‘grand theory’ of the judicial response to executive and legislative security measures of recent times. I accept the argument of both contributors that international law provides the means by which such connections might occur, but whether such ‘coordination’ is an inevitable development remains to be seen. What is good about both these chapters is that in scrutinising the judiciary they have a topicality which survives undented those seismic changes to the political landscape discussed at the outset of this review.

The remaining chapters in Part Two of COUNTERTERRORISM: DEMOCRACY’S CHALLENGE cover different issues under the broad theme of ‘balancing’ security with individual freedom (the part heading is unfortunate since the ‘balance’ metaphor has long been criticised: Waldron 2003). To focus on just one of these contributions, David Cole argues that under American law the crime of providing ‘material support’ to a terrorist organisation is nothing more than guilt by association dressed up to avoid constitutional objection. The lack of a specific intent requirement means that the crime is so widely cast as to depend heavily on executive discretion and thus seriously inhibits freedoms central to a functioning democracy. There is little argument to be made in retort. However, the idea that Cole raises which most captured this reviewer’s attention was that a broader attack on the ‘paradigm of prevention’ and scepticism of any domestic laws supported by reference to it is justified by the abject failure of the preventive rationale in respect of the international activities of the United States. Given the holistic way in which the ‘war on terror’ was sold to the public, such an approach seems only reasonable.

The final part of the book is provocatively titled, ‘Is There a Need for New Legal Paradigms?’ Others have suggested elsewhere that a major rethinking of how law deals generally with risk and futurity appears increasingly necessary (e.g., Zedner 2007), but neither chapter tackles this significant challenge. It is perhaps rather surprising that there are only two chapters offering a response to the question posed. What is even more surprising is the answer given by Michel Rosenfeld, which cannot be reconciled with the views expressed in many earlier chapters. Rosenfeld seeks to examine the process of “judicial balancing” in the relevant decisions of the House of Lords, the United States Supreme Court and the Israeli Supreme Court. Although he is upfront about the differences between these three jurisdictions, including their experience with terrorism, the attempt at comparison (which other authors in the [*186] book also make) still seems uncomfortable. To my mind, the security situation in Israel is so particular as to present real obstacles to the extraction of conclusions more generally about judicial method in security cases. Although various policies of the United States in prosecuting the ‘war on terror,’ namely the use of ‘enemy combatant’ status, have parallels with the Israeli context, these similarities are more manufactured than they are natural. All rhetoric aside, it is hard to see what substantial differences exist between the domestic challenges for the United States and United Kingdom in fighting terrorism. However, by looking at all three countries together, the war paradigm seems more relevant than it otherwise might.

Rosenfeld argues that so long as we continue living in a ‘time of stress’ (as distinct from one of crisis) the courts will need to approach terrorism cases as falling outside both the war and criminal justice models. Instead, “it seems appropriate to aim for a new paradigm, the ‘war-on-terror’ paradigm” (p.392). There follows a rudimentary explanation of why this defies a conventional war mindset, though not much of a hint as to the deficiencies of the criminal justice model. Although a good collection of essays will often feature a diversity of views, this is all a bit hard to swallow in the penultimate chapter and hot on the heels of some devastating rejections of the logic which underpinned Bush’s ‘war on terror.’ Rosenfeld’s chapter is certainly thought-provoking, but it is incongruous amongst the rest of this work and almost certainly now obsolete.

The book concludes with Andrea Bianchi’s thoughts on the matter of new paradigms. He has in mind something rather different from Rosenfeld, and considers the agglomeration of power in the United Nations Security Council caused by the spectre of international terrorism. In particular, he draws attention to the extraordinary power and process of applying sanctions to individuals and organisations pursuant to Resolution 1267, while also commenting on the general legislative function embraced by the Security Council after September 11. The fact that much of this initially occurred to the detriment of human rights before being “spontaneously” corrected through the emergence of “an inchoate system of ‘checks and balances’” (p.418) prompts Bianchi to ponder the wisdom of efforts to constitutionalise the field of international law. He concludes that different explanations may be given of these recent developments while confessing a preference for that which points to the organic “peculiarities of international law” (p.421) over the importation of a constitutional paradigm into this field.

COUNTERTERRORISM: DEMOCRACY’S CHALLENGE is a worthwhile book for those who teach and research the domestic and international challenges and changes ushered in by the 2001 terrorism attacks on the United States. Although parts of the book now seem to have been somewhat superseded by a pulling back from the exceptionalism that was the hallmark of the immediate response to those events in many liberal democracies, those contributions are still valuable. The chapters analysing judicial decision-making remain especially topical, concerning as they do the perennial question of how courts can [*187] protect rights while remaining mindful of the demands for security.

REFERENCES:
Dyzenhaus, David. 2006. THE CONSTITUTION OF LAW: LEGALITY IN A TIME OF EMERGENCY. Cambridge: Cambridge University Press.

Ewing, K.D and Tham, Joo-Cheong. 2008. ‘The Continuing Futility of the Human Rights Act.’ PUBLIC LAW 668-693.

Gearty, Conor. 2006. CAN HUMAN RIGHTS SURVIVE? Cambridge: Cambridge University Press.

Gross, Oren and Ní Aoláin, Fionnuala. 2006. LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE. Cambridge: Cambridge University Press.

Ross, Daniel. 2004. VIOLENT DEMOCRACY. Cambridge: Cambridge University Press.

Waldron, Jeremy. 2003. ‘Security and Liberty: The Image of Balance.’ 11 JOURNAL OF POLITICAL PHILOSOPHY 191–210.

Zedner, Lucia. 2007. ‘Preventative Justice or Pre-Punishment? The Case of Control Orders.’ 60 CURRENT LEGAL PROBLEMS 174-203.

---

© Copyright 2009 by the author, Andrew Lynch.

Continue Reading...

THE MAIDEN TRIBUTE OF MODERN BABYLON

by W.T. Stead (Edited and with Annotations and Introductory Essay by Anthony E. Simpson). Lambertville, NJ: The True Bill Press, 2007. 207pp. Cloth $65.00. ISBN: 9780979111600.

Reviewed by Natalie P. Kapur, Department of Political Science, University At Albany. Email: nk318523 [at] albany.edu.

pp.179-181

In THE MAIDEN TRIBUTE OF MODERN BABYLON, the work of W.T. Stead is reprinted in its entirety. Originally published in the Pall Mall Gazette in 1885, this is the first time the articles have been brought together in one volume. Professor Anthony Simpson provides the reader with a lengthy introduction that provides context to the work. In publishing and investigating the issue of female sexual exploitation and female sexuality more generally, Stead intended to provide the readers of the Pall Mall Gazette with a public demonstration of the ease with which the professional sexual exploitation of children could be accomplished” (p.27). In addition, Stead wanted to reveal how widespread child prostitution was across London and called this phenomenon of juvenile prostitution a “veritable slave trade.” This was an issue that plagued nineteenth century Great Britain and beyond as young women were often brought across to London from the continent.

The book has a clear thesis and Stead speaks to this throughout. He does not waiver from his intended aim to bring to the fore the widespread prostitution surrounding London, not only among working class girls in Great Britain but also among those girls who are brought into England for the sole purpose of being seduced. The book is not a scholarly piece in the conventional sense, but rather the amalgamation of a lengthy investigation into an issue that Stead felt to be important nonetheless. Simpson does Stead’s work a great service by lending his voice to the piece, bringing together complexities the reader would not have otherwise understood. The introduction is a crucial addition to the work and brings together the arguments Stead attempts to make. Stead’s position and opinions are clearly noted throughout the articles, the original sources are quoted without change, and without evidence to the contrary it appears that the assumptions about the life of working class girls in London are correct. Simpson’s introduction certainly validates some of the arguments that Stead makes throughout the body of the text.

The original articles and the direct quotations of young women are accompanied by Stead’s own commentary, adding meaning and context to the articles. This is a tremendous work with a vast array of original sources. Although this is obviously a useful endeavor, it is at times difficult to distinguish between Stead’s commentary and the articles themselves, which does in part confuse the reader over who is the voice behind particular comments. Despite this short coming, it is remarkably useful to have the articles synthesized in one volume along with the voices of individuals [*180] who, at the time, commentated on Stead’s activity, either in support or opposition to it.

The book is loosely divided into chapters which demarcate the days Stead wrote. The volume moves from July 6th to July 10th 1885, with the introduction giving the reader background information on the issues that were involved. Simpson’s introduction details the origins of the Criminal Law Amendment Act of 1885, which was an “Act to make Further Provision for the Protection of Women and Girls, the Suppression of Brothels and other Purposes” (p.9). According to Simpson, this act was largely expected to protect young girls from the exploitation they faced in Victorian Great Britain, despite the fact prostitution has never been illegal in the country. Various laws had been passed previously, including the Vagrancy Act of 1824, which was designed to regulate “disorderly conduct and other anti-social behavior associated with prostitution” (p.11). Further legislation that was specifically motivated by the need to address prostitution was the Metropolitan Police Act of 1839, which, although outlawing solicitation, was remarkably hard to enforce as the three elements necessary for prosecution were difficult to prove. In fact, members of law enforcement knew of the actions of the brothels but did very little to prevent their continuation. Stead quotes police offers who comment that they had knowledge of the brothels, and during the entire investigation Stead notes that there was not a single arrest.

Simpson’s introduction and annotations throughout the text are indispensible to this collection of articles – he translates words and corrects grammatical errors thoroughly. This helps give the reader a broader understanding and ability to analyze Stead’s observations. The work is acknowledged to have been poorly written at points, but these careful additions and contextual explanations certainly add to its value for scholars.

Stead’s use of direct quotations from victims and lengthy passages by young girls retelling their stories adds tremendous weight to the legitimacy of Stead’s and his companion’s arguments. Stead’s to infiltrate and gain the confidence of these young women is remarkable, given the level of indoctrination they had endured by the brothel owners. The words of the young women expressed the dread they felt when being led into a room and approached by a stranger. Many of these women were only young teenagers and were forced to participate, albeit passively, in horrific acts. The descriptions by the individuals are vivid and clearly demonstrate their innocence regarding what is about to happen to them. In the words of one, for example, “The first time I was very frightened, and when the gentleman began to undress me I cried for I did not know what he was going to do” (p.94).

This, and other passages throughout the work, serve to demonstrate the unwillingness and innocence of these working class girls. They were often lied to and tricked into meeting gentlemen, not only by brothel owners, but also by older girls who had been indoctrinated. Another victim remarked that, after she was seduced and a girl who she thought was her friend paid her: “she gave me half and kept the other half for herself, as her pay for getting me seduced” (p.88). [*181]

Stead also details the methods the brothel owners used to entice young teenagers into rooms under false pretenses with the talk of money in amounts that these working class girls were not used to seeing. Although these were working class girls, they did not have sufficient knowledge and experience at the age of thirteen to contemplate and understand the act of rape the brothel owners and patrons inflicted on them. Despite this, one brothel owner defended her trade thusly: “if a girl is to be seduced it is better she should be seduced by a gentleman, and get something for it than let herself be seduced by a boy or a young fellow who gives her nothing for it” (p.90).

There is an emphasis throughout that brothel owners are only interested in virgins and by and large would not pay the whole sum for the young woman unless virginity was proven, because the vast majority of gentlemen would not be interested otherwise. These young women were known as “fresh girls”(p.67).

The book is enhanced by including the voices of the public, both those who praised Stead’s undertaking and those who disagreed with him. For example, Mr. Francis Peak “writes . . . thanking you for your bold exposure of the devilish traffic going on in female virtue” (p.153). He went on to refer to the sexual exploitation of these women as “social evil” (p.155). Coupled with such letters of support are notices condemning Stead’s work, largely expressing disbelief that this was really happening. Dr. John Harvey, for example, believed that the “vice is much exaggerated” (p.161).

As a collection of articles, although excellent, the author presents a one-sided argument save a few pages of criticism from readers of the Pall Mall Gazette. Of course, Stead was commenting on activity in Great Britain at this time and was not necessarily required to put forth an alterative view of the situation. He was not making an argument per se, but rather presenting the facts as he saw them during his six week investigation. Although it is important to present the work in its entirety and this is clearly an important issue to uncover and delve into more deeply, it is at times repetitive, especially when young girls recite their experiences. Unfortuately, they all faced similar ordeals, and some of their stories could have been eliminated.

This book makes a useful contribution to the study of Victorian Great Britain and will be of great value to historians interested both social development and legal development in the UK. In addition, criminologists and European legal scholars will find this book of importance. The history surrounding the age of consent is especially significant and could benefit from further investigation. It is most definitely a book that scholars will benefit from reading, and it would be a worthwhile assignment for upper level undergraduate or graduate British and International History courses.

---

© Copyright 2009 by the author, Natalie P. Kapur.

Continue Reading...

AMERICAN BLACKLIST: THE ATTORNEY GENERAL’S LIST OF SUBVERSIVE ORGANIZATIONS

by Robert Justin Goldstein. Lawrence, Kansas: University Press of Kansas, 2008. 388 pp. Cloth $34.95. ISBN: 9780700616046.

Reviewed by Erin Ackerman, Department of Government, John Jay College of Criminal Justice – The City University of New York. Email: eackerman [at] jjay.cuny.edu.

pp.175-178

In 1947 President Harry Truman, seeking to undermine congressional Republican stands on fighting domestic Communist threats, issued an executive order creating a loyalty program for federal employees. One piece of information that could be considered in making loyalty determinations was whether an individual was a member of Communist or subversive organizations, or associated or sympathized with those who were members. These organizations were compiled in and publicized by what would come to be known as the Attorney General’s List of Subversive Organizations (AGLOSO), which AMERICAN BLACKLIST identifies as the centerpiece of the US government’s efforts to foster the Red Scare of the 1940s and 50s.

In AMERICAN BLACKLIST, Robert Justin Goldstein, professor emeritus of political science at Oakland University, presents a political history of the AGLOSO. Goldstein argues that the AGLOSO was “the single most important domestic factor that fostered and facilitated the Red Scare,” predating McCarthy and indeed creating the political tools and repressed public that allowed McCarthy’s rise to prominence (p.xi). This timely work traces the origins, rise, and ultimate demise of the AGLOSO over a seventy year period and illustrates a major example of the dynamic tension between civil liberties protections and national security concerns.

Goldstein’s major contribution is to reconstruct the workings of the AGLOSO and the politics around it through reviewing an immense number of primary sources, some recently declassified, found in national, presidential, agency, and university library archives, as well as those obtained through Freedom of Information Act (FOIA) requests. A short bibliographic essay at the end of the book will be a valuable resource for those doing related work on this era or on civil liberties during times of national emergency.

Few histories of this era have examined the AGLOSO closely. Goldstein traces the precursor initiatives to the AGLOSO, the internal political debates over AGLOSO standards, and attempted maneuverings by the Truman and Eisenhower-era Departments of Justice to avoid subjecting AGLOSO determinations to judicial review. Goldstein also briefly examines the roots of government attention to the threat of subversive organizations, reaching back to the nation’s first Red Scare in the wake of the McKinley assassination.

The heart of AMERICAN BLACKLIST, however, focuses on the AGLOSO created as part of the Truman [*176] administration’s loyalty program. At the end of Chapter One and in Chapter Two, Goldstein shows how the AGLOSO evolved from a tool to be used in the narrow context of federal employee loyalty screenings and as one of several potential pieces of evidence, into an officially publicized blacklist used widely by many federal departments, state and local governments, and private businesses and organizations. Targeted organizations had no opportunity to challenge their classifications on the AGLOSO. The immediate consequences of an organization’s listing were that its members and those with whom they associated lost federal (and state and local) government jobs, were denied passports and public benefits, and/or faced deportation proceedings. Listed organizations, whose members and contributors were discouraged from maintaining ties, were denied tax exempt status and often ceased to exist. The broader consequence of AGLOSO was to create a repressed public afraid of entering into associations that might be deemed to be subversive at a later date.

Goldstein discovers a shocking lack of agreement within the Truman and Eisenhower administrations, and between the FBI and other federal offices, on the scope, standards and usage of the AGLOSO. AGLOSO initial standards for determination of “subversive” organizations “included some specific criteria, such as advocating the overthrow of the government . . . along with some extremely vague ones, such as ‘consistently opposing the enactment of, or advocating the repeal of laws and measures designed to strengthen and improve the security of the US’” (p.58). As a result, the list came to encompass a broad range of organizations. Those explicitly advocating a Communist model of government were included, as were so-called Communist “fronts,” organizations in which Communist Party members “played significant or dominant roles, often without the knowledge of most members” (p.10). Also included were organizations whose missions for social justice and civil rights included explicit critique of the US government.

Most importantly, J. Edgar Hoover’s FBI was vested with the primary institutional responsibility to identify organizations for potential list inclusion. This authority, Goldstein argues, “combined with a general lax supervision of the bureau by the DOJ, was used by the FBI during the next thirty years as key basis for its increasingly virtually unbounded investigation of individuals and groups throughout American society, including the widespread use of a variety of illegal burglaries, wiretaps, and other intrusive means” (p.52).

Law and politics scholars may be especially interested in the role of the courts in challenging and constraining the use of the AGLOSO, which Goldstein details in Chapters Three, Four, and Five. Chapter Three starts with the Supreme Court holding in JOINT ANTI-FASCIST REFUGEE COMMITTEE v. MCGRATH (1951) that some listed organizations had to be afforded an opportunity to challenge their inclusion on the AGLOSO. The divisions among justices and between justices and their clerks show a Court divided over the appropriate balance between ensuring civil liberties and supporting a tough stance on [*177] communism. In the wake of the MCGRATH decision, DOJ officials searched for a way to assuage judicial due process concerns without giving listed organizations a full hearing. Ultimately, the DOJ adopted a written challenge system with procedural obstacles so difficult that many groups would or could not make use of it.

Chapter Four marks 1955 as the point at which the tide turned against the AGLOSO. Public attacks by former well-known supporters of anti-communist measures, congressional hearings, and judicial setbacks revealed that political officials and the public were increasingly less concerned with subversive threats within government and society in general. The most important judicial setbacks for the AGLOSO came in a series of cases challenging the use of the AGLOSO in denying federally subsidized housing benefits. One case, featuring the eviction of a veteran who had lost both legs while serving in the US armed forces during World War II, would occupy national headlines and serve to discredit the AGLOSO in the court of public opinion.

These legal setbacks continued for the AGLOSO into the late 1960s and 1970s. As Goldstein shows in Chapter Five, although the list was still officially in operation, many government department loyalty screenings moved away from relying on it. Similarly, the DOJ was reluctant to list additional organizations for fear of triggering a court challenge that would find the AGLOSO unconstitutional in and of itself, instead of finding fault with it on limited or technical grounds. Finally, President Nixon failed in his attempts to revive the AGLOSO, a move which was strongly attacked in congressional hearings as ineffective, an overreach of executive power, and an abuse of civil liberties.

As Goldstein admits, it is difficult to disentangle the AGLOSO from other government initiatives of this era. Goldstein’s focus is on piecing together the record and history of the previously understudied AGLOSO. The reader is assumed to be familiar with the broader history of this period and the other relevant actors and institutions. Goldstein emphasizes the AGLOSO; the House Committee on Un-American Activities (HUAC), McCarthy and other players make brief appearances in relation to the AGLOSO, but Goldstein does not engage in comparison that would allow one to fully evaluate his claim that the AGLOSO was “the single most important domestic factor that fostered and facilitated the Red Scare.” Nevertheless, the reader is convinced of the importance of the AGLOSO and can see how the AGLOSO contributed to, or might have exacerbated, other initiatives of this time period.

Goldstein’s account is richly detailed, the product of extensive research and documentation. At times, the level and sheer amount of detail can overwhelm the reader. An important point that Goldstein makes is that the AGLOSO’s standards and procedures were in a constant state of flux from its very inception. Reading about the policy debates, changes, and territorial battles, it is easy for the reader to experience some confusion, as the reader tries to determine what was ultimately decided and how that led to later events. The reader would benefit from more signposts or summaries to guide the way through each chapter and from a separate [*178] concluding chapter that would assist in summarizing and evaluating the mass amounts of evidence presented. For this reason, AMERICAN BLACKLIST will likely be of most use to those already engaged in related research and able to make some of these crucial connections on their own.

AMERICAN BLACKLIST provides a service to political scientists and historians in documenting and describing in careful and exhaustive detail the creation of the AGLOSO, the political gambits and debates that influenced its makeup and operations, its extensive use or imitation at all levels of governments, and the devastating effects on listed organizations and individuals associated with them. The reader comes away feeling that Goldstein has made a case for the pivotal role of the AGLOSO in the Red Scare and the suppression of civil liberties by the sheer bulk of his documentation. The book is an enormous resource for scholars of this time period, those who are examining government interference with freedom of association, and students of executive power in times of war and heightened security concerns. As Goldstein himself notes, the book has obvious connections to civil liberties considerations in light of the War on Terror. Making these connections is beyond the scope of Goldstein’s already massive and detail-rich undertaking, but he offers a rich point of comparison for future work.

CASE REFERENCES:
JOINT ANTI-FASCIST REFUGEE COMMITTEE v. MCGRATH, 341 US 123 (1951).

---

© Copyright 2009 by the author, Erin Ackerman.

Continue Reading...

RESPONSIBLE BUSINESS: SELF-GOVERNANCE AND LAW IN TRANSNATIONAL ECONOMIC TRANSACTIONS

by Olaf Dilling, Martin Herberg and Gerd Winter (eds). Oxford, UK, and Portland, OR: Hart Publishing, 2008. 376pp. Hardback. £45.00/$95.00. ISBN: 9781841137797. Paperback. £22.50/$48.00. ISBN: 9781841137803.

Reviewed by Fiona Marshall, School of Law, Queen’s University of Belfast, Northern Ireland. Email: f.marshall [at] qub.ac.uk.

pp.172-174

In a world of increasing globalisation of markets, the dichotomy between this state of affairs and the nation state has become increasingly apparent in that state rules cannot, and do not, provide adequate regulation. As the title suggests, the aim of RESPONSIBLE BUSINESS is to look at the role of self-governance arising from the increasing number of transnational business transactions, specifically what the editors, Olaf Dilling, Martin Herberg and Gerd Winter, term the “public” (p.vii) role of self-governance in relation to transnational environmental, consumer and worker protection, and the relationship these have with formal law. A main argument of the book, therefore, is that, while the laws of states may not be wholly adequate to deal with increased economic globalisation, businesses themselves, in the form of “three constellations” (p.vii) of corporate responsibility, transnational corporate networks and non-governmental (NGO)/business partnerships, have stepped up to provide “relatively clear and calculable standards and guidelines of behaviour” (p.1).

The contributors to the book are largely public law specialists and sociologists with the contributions arranged into four sections. The first is entitled “Corporate Responsibility and the Law” and comprises three chapters. Herberg’s chapter is an empirical analysis of emerging self-regulatory systems in relation to environmental protection in the German chemical industry. He includes in this discussion corporate guidelines, auditing regimes and internal guidelines, highlighting how, in some instances the codes are written so as to “emphasise the document’s similarity to written law” (p.25). In addition, he emphasises that these self-regulatory codes do not operate in a vacuum but interact with state law in a number of ways from the decisions of authorities which take the codes into account, thus embedding them in state law, to the codes themselves giving rise to claims for compensation arising from a company’s failure to meet their own standards.

In Chapter Two, Carola Glinski investigates the potential legal ramifications of corporate codes which relate broadly to public health. She considers three groups on whom the corporate codes can have legal effects: the author(s) of the codes, the group of corporations to whom the codes are addressed, including those who have not adhered to the code, and third parties. She concludes from this that “a truly transnational regulative effect may ensue from private regulation” (p.63). [*173]

In the final chapter in this section, Eva Kocher discusses empirical research on the function that corporate social responsibility (CSR) programmes may play in securing a minimum standard of workers’ rights on the global business scene. She highlights the role the International Labour Organisation (ILO) has played in working directly with enterprises in promoting their standards and finally comments that “[b]y entering into the field of social standards, private codes of conduct . . . contribute to making international labour standards legally binding in [national law]” (p.83).

Part II deals with self-regulation in business networks (“Private Standards in Transnational Business Relations”) and commences with Dilling’s empirical research on the use of chemicals in the electronic industry and self-regulation in environmental standards. Dilling argues that, while there may be a Delaware effect in production processes, with businesses seeking the state with the least restrictive legislation, the same is not true for product standards as “exporting corporations already complying with strict standards of importing countries are inclined to put pressure on their domestic jurisdiction to restore fair rules of competition by also raising environmental standards” (p.90). He espouses a theory of “proactive compliance” whereby national regulators and corporations work in tandem, which is “characteristic of a changed relationship between state and private sector” (p.119). In a similar vein, Alexandra Lindenthal’s essay examines the management of dangerous chemicals in transnational networks supplying the automotive industry.

The final chapter in this section, by Oren Perez, discusses the environmental aspect of the phenomenon known as “green finance,” where non-financial concerns are considered in the financial world. He highlights a number of codes on the need for environmental assessment adopted by development banks that have since been incorporated into the internal rules of large private banks. However, he remarks that these were “uncoordinated phenomena” (p.155) and that this approach is now changing to one of public-private co-operation. In addition to a proliferation in standards through programmes such as the United Nations Environmental Programme Financial Initiative (UNEP FI), and the Equator Principles from the World Bank, two of the primary stock index markets have also formulated their own codes: the Dow Jones Sustainability Indexes and the FTSE4Good Index Series. Perez concludes by acknowledging the “dominant role played by non-state forces” (p.173) but suggests that while this dominance is likely to remain, governments will have more intervention in the future.

Part III, entitled “Consumer-based Private Governance and the Law,” as its title suggests, focuses on consumer based regulation. Ralf Bendrath presents a survey on regulating privacy on the internet, through an exploration of the history of state based privacy laws and the rise of self-governance in the 1990s when it was recognised that “[d]ata protection . . . could only work if government supervision was combined with functioning self-regulation in the private sector” (p.193). His essay highlights that, while privacy on the internet may have largely been self-regulating, governments still played a [*174] role in providing incentives for the implementation of privacy codes. Increasingly, however, calls have been made for the state to get “back in” (p.215), and Bendrath concludes that the state’s role in regulating privacy has changed, in that it “is more an ‘enabler’ than an ‘enforcer’ and must work with all types of other agents, sometimes co-operating, sometimes enforcing, and sometimes enabling” (p.215).

Gralf-Peter Calliess continues the focus on the consumers’ regulatory role in the murky area of online shopping. He identifies four regulatory mechanisms that play a part in ensuring consumer protection: online reputation, quality or trust marks, the availability of online dispute resolution and security of payment. In particular he highlights the marketplace eBay, describing it as having a “private legal system” (p.239). As a result, he argues that in virtual marketplaces, “private legal systems,” provided they are effective, have the potential to displace state consumer protection laws.

The final two chapters of this section move away from consumer protection per se and instead look at environmental considerations that may impact upon consumer choice. Errol Meidinger assesses global product certification schemes such as the Forest Stewardship Council (FSC) and organic labelling in the areas of agriculture and fisheries. Cristiane Derani and José Augusto Fontoura Costa also focus on the FSC, specifically in relation to the Brazilian rainforests. However, instead of certification arising from state law in Brazil it has been “induced by the weakness of state institutions and control mechanisms” (p.303). In spite of this, they argue that certification is “a useful instrument but has its limits and must be complemented by other policies and regulations” (p.308).

The final section considers “Transnational Self-governance in Perspective,” and in its solitary chapter Sol Picciotto argues that the state’s role has been changed rather than reduced. It now interacts with governance on a number of private levels creating international regulatory networks. He concludes that “[l]aw . . . plays a key role in global governance not because of its precision but because of its flexibility” (p.336). It is this flexibility that in turn helps to legitimise private law.

In summary, the book is a timely, thought-provoking collection that covers a diverse range of topical and problematic subject areas. The editors and authors clearly believe that official and private regulation can work in tandem, enhancing the overall impact of the regulatory aims and present compelling empirical and theoretical evidence to support this belief. It would be an excellent addition to any library seeking to expand not just its regulation and governance titles, but also its international economic, environmental and socio-legal titles.

---

© Copyright 2009 by the author, Fiona Marshall.

Continue Reading...