TRUTH MACHINE: THE CONTENTIOUS HISTORY OF DNA FINGERPRINTING

by Michael Lynch, Simon A. Cole, Ruth McNally, and Kathleen Jordan. Chicago: University of Chicago Press, 2008. 416pp. Cloth. $37.50. ISBN: 9780226498065.

Reviewed by Marvin Zalman, Department of Criminal Justice, Wayne State University. Email: aa1887 [at] wayne.edu.

pp.283-287

Josiah Sutton, a black man with a prior juvenile record, was convicted for a 1998 rape in Houston. The victim, who was abducted in her car and raped by two men, identified Sutton and another man days after the rape by their hat styles. A Houston Police Department Crime Laboratory analyst reported that “a mixture of DNA types consistent with J. Sutton, [the victim], and at least one other donor was detected on the vaginal swabs. . . . The DNA type of J. Sutton can be expected to occur in 1 out of 694,000 people among the black population” (p.279). The other man was excluded. With this evidence from the DNA “truth machine,” Sutton was convicted and that should have been the end of the matter. Except that it wasn’t.

As reported by the authors of TRUTH MACHINE, a 2002 television exposé of the Houston crime lab brought in DNA expert William Thompson who excoriated the lab (p.280). He pointed to failings that included routinely neglecting to follow proper scientific procedures, biased interpretation of results, biased statistical estimates against defendants, and even outright misrepresentation of scientific findings.

The error in Sutton’s case was not issued by a pathological liar, like the West Virginia criminalist Fred Zain, who fabricated reports of guilt out of whole cloth. Nor was the identification based on a contaminated sample. Sutton was linked to the crime scene sample by a combination of a limited and early form of DNA testing, an erroneous calculation of the low probability that the sample could have come from another donor, and incompetence in failing to exclude Sutton by the presence of an “anomalous” allele in a vaginal sperm fraction not carried by Sutton or the victim. To a lay person DNA testing is DNA testing. By the end of TRUTH MACHINE, however, a lay reader is well enough informed about continuous technological advances and refinements so as to appreciate that the analytic technique employed was the DQ-alpha polymarker system supplemented by other techniques with a “relatively limited array of possible alleles” (p.281), and not the more advanced STR system (which tests 13 DNA loci) that excluded Sutton’s DNA. As for the inflated probability of a match, the crime lab apparently combined samples from at least three persons (the victim and two rapists) into one profile that increased the likelihood “that a DNA profile taken from a randomly chosen person would match a subset of those markers” (p.281). When Thompson recalculated the probability of a coincidental match, the probability dropped from one in 694,000 to one in eight. [*284]

Michael Lynch, Simon Cole, Ruth McNally, and Kathleen Jordan do not dispute the great discriminatory power of proper DNA testing as a method of identification. But TRUTH MACHINE cautions that the method is not infallible. In cases of random hits on large DNA database searches, the identification cannot be the exclusive basis of guilt without developing the context of the case. Again, Sutton’s case is instructive. The victim first identified each of the perpetrators as weighing about 135 pounds and about 5 feet 7 inches tall. Sutton was over 6 feet tall and weighed 200 pounds. After her initial identification, based on the fact that Sutton and another black man were wearing, respectively, a baseball cap with the bill turned sideways and a skullcap, the police held a showup with the men in the back seat of one police car while the victim sat in another. Sutton may have had the worst defense lawyer in Harris County, which was the leading producer of death sentences in the country. The attorney never won an acquittal for a client and “had the dubious distinction of having sent more of his former clients to death row than any other defense attorney in the United States” (p.280). The attorney did not challenge the work of the Houston crime lab. Ideally, such incompetence should have raised alerts regarding a possible miscarriage of justice. Unfortunately, haphazard work is often the norm in American courts.

On one level, TRUTH MACHINE is a powerful reminder that the highly adversary American system of criminal justice cannot work properly if it is unbalanced. But TRUTH MACHINE is far more. It is a high-octane book for specialized audiences that traces, as the subtitle has it, the “contentious history” of the use of DNA profiling techniques to link biological evidence to criminal suspects. The authors are leading scholars in the small and relatively new discipline of Science and Technology Studies (S&TS), which they describe as “a transdisciplinary field that combines the history, social study, and philosophy of science” (p.2). (Michael Lynch is editor of the journal Social Studies of Science, a leading outlet for S&TS research.)

To describe TRUTH MACHINE as a history of the fifteen years during which DNA profiling passed through a period of legal and scientific testing and controversy to emerge as the gold standard or paradigm of “the truth” in courts, would be like saying that Herman Melville’s MOBY DICK is just a story about a whale boat captain’s obsessive pursuit of a ferocious albino whale resulting in his ship’s destruction. Like MOBY DICK, TRUTH MACHINE is much more, in part because the book includes many asides into recondite byways of DNA and law that provide a wealth of information. The authors do not allow the “asides” to overwhelm the main thrust of the book for several reasons. First, in ten chapters they tell the story in chronological fashion, with each chapter devoted to one of the various complex issues that had to be resolved for DNA profiling to emerge triumphant as the leading identification technique. Second, many but not all of the “asides” are contained in short and excellent appendices, labelled “interludes,” that are strategically located between relevant chapters. [Interludes A through E cover DNA profiling techniques; the law of admissibility; the U.K. national DNA [*285] database; the statistical test for calculating the random match probability for searching DNA databases; and fingerprinting and probability.] Third, the narrative throughout the book is tied thematically to the sociological approach of “controversy studies,” detailed in Chapter 2, which provides a thread that holds the spiraling narrative (perhaps not unlike a strand of DNA) in place. To this end the authors explore, among other questions, how “controversies open and close in a hybrid legal scientific field” (p.xvi).

Because courts and lawyers played a central role in the history of challenges to DNA and its ultimate admissibility, the book could have been a disquisition on the law and science relationship. TRUTH MACHINE, however, provides a fuller exploration that links and cross-references a number of disciplines and methodologies, including law (encompassing the work of appellate and trial courts and “savvy” lawyers), biological science (both university based experimental science and the “administrative” science of institutional laboratories), forensic science (or its less than scientific counterparts that rely on comparisons by experts), and explicit and implied narrative strategies grounded in the sociologically grounded S&TS approach. The chief narrative strategy is a form of “mundane” deconstruction applied by S&TS scholars, resulting in a book that is far different from one I imagine would have been written by legal scholars, biologists, sociologists, or political scientists.

The expertise of the authors of TRUTH MACHINE is amplified by the fact that they have been exploring the so-called DNA wars as they unfolded in England and the United States for fifteen years (p.xiii). The research for the volume included interviews, transcripts of courtroom trials, and laboratory observations. The book includes well-designed graphics that greatly enhance one’s ability to understand concepts and processes. The volume is also based on voluminous previous writings by authors Michael Lynch, Ruth McNally and Kathleen Jordan on molecular biology and such topics as the chain of custody. TRUTH MACHINE draws on the S&TS work of Simon Cole, a leading expert on fingerprinting, in a fascinating exploration of how DNA profiling replaced fingerprinting as the exemplar of physical forensic evidence and threatened its status as admissible evidence. All this results in a complete, nuanced, and thought provoking book.

The first two chapters establish a foundation by asking whether DNA profiling is a “revolution” that augers a paradigm shift in forensic evidence, by grounding the discussion in Kuhn’s (1970) classic study of paradigm shifts in science, by sketching the area of “controversy studies,” and by describing the early legal challenges to the admissibility of DNA profiles around 1990.

Chapters Three through Six explore various facets of the DNA profiling controversy in England and America. Chapter Three not only describes the transfer of DNA techniques from labs concerned with basic science to forensic labs; it provides a basic tutorial in the sociology of laboratory work and an illuminating discussion of the uses and limits of protocols and their use in cross-examination. The latter is supported by [*286] an excerpt from the transcript of a cross-examination of a forensic scientist by the Innocence Project’s Peter Neufeld during the O. J. Simpson trial. Other chapters delve, with great interpretive depth, into the subjects of chains of custody (Chapter Four), how RMPs (random match probabilities) were calculated and presented in evidence in an English case (Chapter Five), and how a major English test case, R. v. ADAMS (1996; 1997), limited the use of Bayesian analysis in other than scientific evidence so as to preserve the ultimate function of the jury (Chapter Six). The latter chapter is entirely respectful of the legal enterprise and offers the caution “that DNA evidence alone is insufficient to convict a suspect unless supported by other evidence” (p.219). This is supported by the mathematical likelihood that data trawling in large DNA databases seeking “cold hits” will produce adventitious matches to innocent persons. Indeed, it happened in one English case (pp.247-48).

The remainder of the book explores the “closure” of the “DNA wars” – the acceptance of DNA by the larger legal and lay world as virtually infallible. A closer examination in Chapter Seven shows that a number of weak points in DNA testing in the early years were corrected by technical, legal and administrative “fixes.” Chapter Eight, “Postclosure,” critically evaluates the acceptance of DNA in popular and political culture as the golden metewand of evidence, and Chapter Nine examines how fingerprinting has been put on the defensive. A most interesting point about this “inversion of credibility” is that LPEs (latent print examiners) were once granted exalted status in the courts when they claimed that there was no error in their conclusions. Now that DNA results are put forward as probabilistic estimates, LPEs have been scrambling to place their work (which seems to me to be a very useful, if not perfect, kind of comparison evidence) in a scientific mold that turns out to look like pseudo-science on close inspection.

The final chapter notes the irony that DNA, having been deemed admissible under the DAUBERT (1993) standard that holds fallibility to be a distinguishing characteristic of science, has come to be taken as irrefutable to such a degree as to generate “positivism about science” and “skepticism about law.” TRUTH MACHINE ends by indirectly offering support for the battered adversary system of justice and its chief engine of ascertaining the truth, cross-examination. “The problem . . . is that ‘DNA’ is not ‘irrefutable,’ and should not be exempted from the fallibility that ‘it’ reveals to be a property of all other forms of evidence” (emphasis in original, p.344).

There are scores or perhaps more of small epistemic reminders throughout TRUTH MACHINE that replicate Magritte’s caption, ceci n’est pas une pipe. For example: “Whereas DNA analysts look at ‘allels’ (or rather, bands, blots, graphic peaks, or other literary proxies for allele size and frequency), LPEs [latent print examiners] look at impressions of ‘friction ridge details’” (p.295). This is relevant to the multidisciplinary focus of the book that is concerned in large measure with the translation of “science” into terms understandable by lawyers and judges, who argue for or against and decide the admissibility of expert evidence. The problem was highlighted by an amusing [*287] exchange in which a judge questioned DNA expert Edward Blake, about the effect of a test to determine a DNA profile. Blake stated that a three-hour testing process on a biological sample would result in “visualizing the consequences” by “running a test gel” on some of the fluid. “THE COURT: When you say see, you mean with your own eyes? THE WITNESS: Yes. THE COURT: Not with the use of microscopes. THE WITNESS: I don’t mean see with your own eyes in the sense you can see a molecule and you can sit there and count one, two, three, four. THE COURT: This is where I am having my trouble. How can you see something that you don’t see. THE WITNESS: . . . Because, Judge, you are asking how do the tools of all science work in general when you ask a question like that, and the way you see it is with some technical procedure that allows you to see the consequence of the molecule with a particular set of properties” (pp.55-56). TRUTH MACHINE ultimately instructs that all interpretive enterprises must pay close attention to the meaning of words.

Every scholar interested in science and law will find much of value in TRUTH MACHINE. It is a sophisticated book that does not easily fit standard courses, although it could be used for advanced seminars that explore the intersection of law and science. As I am not familiar with the curriculum in S&TS programs, I am not sure whether the book is useful for S&TS pedagogy, but given the prominence of the authors, I am sure that it will be considered there. Because the subject of wrongful convictions is one of the most exciting issues coursing through American law schools, teachers of criminal law who wish to gain a sophisticated understanding of DNA as evidence will find the book extremely valuable.

REFERENCES:
Kuhn, Thomas S. 1970 [1962]. THE STRUCTURE OF SCIENTIFIC REVOLUTIONS. 2nd Ed. Chicago, University of Chicago Press.

Melville, Herman. 1991. MOBY-DICK, OR, THE WHALE. New York: Vintage Books/Library of America.

CASE REFERENCE:
DAUBERT v. MERRILL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993).

R v. ADAMS, [1996] EWCA Crim 222, [1997] EWCA Crim 2474.

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© Copyright 2009 by the author, Marvin Zalman.

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UNCIVIL DISOBEDIENCE: STUDIES IN VIOLENCE AND DEMOCRATIC POLITICS

by Jennet Kirkpatrick. Princeton: Princeton University Press, 2008. 152pp. Cloth. $40.00/£28.95. ISBN: 9780691137094. Paper. $22.95/£16.50. ISBN: 9780691138770. e-Book (2009). $22.95. ISBN: 9781400828869.

By: Jon Goldberg-Hiller, Department of Political Science, University of Hawai’i. Email: hiller [at] hawaii.edu.

pp.279-282

Jennet Kirkpatrick’s book provides an engaging examination of what she has calls “uncivil disobedients,” popular actors who practice and profess the value of “righteous violence” (p.2). Focusing on these proponents of violent means to ostensibly democratic ends does more than open our eyes to what Smith (1997) has called the conflicting visions of American citizenship. It also expands on Weber’s epistemological realism that anchors the nation to rationalized violence, a perspective captured in a quote from Goethe’s FAUST: “The devil [of violence] is old; grow old to understand him” (Weber 1946a; 1946b). The devil of violence, illustrated in the chapters of Kirkpatrick’s book, reveals to legal theorists more about popular constructions of the law (plowing more of Cover’s legal field of pain and death), proffers alternative models to the Civil Rights Movement (CRM) that have overly dominated sociolegal analysis, and illuminates the “gray area” where the rule of the people mixes with the rule of law.

UNCIVIL DISOBEDIENCE develops these sociolegal inquiries alongside fascinating accounts of vigilantes, Southern lynch mobs, and militant abolitionists. These histories confront the reader with the structures of popular violence reproduced within the American experience, dispelling dismissive notions of their aberration or their charismatic irruption. We can see the repeated fascination with legal form in these accounts: the “tribunals” constituted by vigilantes that justified violence and law; the support of local sheriffs for lynch mobs in paradoxical efforts to increase “fear of the law;” and the collective character of militant abolitionism designed to reaffirm the relationship of the people to the government, as just a few. These violent movements also expressed a temporal dimension not unlike law’s antecedent concerns with origins and precedent, as well as cycles of renewal and return to expressed truths (c.f., French 2001; Greenhouse 1989): a fascination with the complex pull of the past such as the broken promises that justify violent defenses of democracy, and the need to re-experience aspects of the American revolution. Each episode of uncivil disobedience is also shown to be infused with what Morone (1990) has named the “democratic wish”: a Rousseauian sense of sovereign unity that has always animated democratic arguments about law’s proper domain. As Kirkpatrick phrases it, “To effectively unite will and law, the people had to have one will, one voice, one conscience, and one desire” (p.50).

Kirkpatrick demonstrates that the power of these legal themes brings uncivil [*280] disobedience structurally close to other models of popular reform, particularly the CRM. Like the Southern lynch mobs that the CRM tried to defeat with a new respect for the law, for example, the CRM relied on public spectacle, personal comportment signaling high social status to build middle class support, mass action to deflect the power of violent confrontation, and a notion of law that transcended the individual. In order to explain the differences, Kirkpatrick effectively turns to political theory and jurisprudence. In the case of lynch mobs and the CRM, as an illustration, she finds differences articulated along the lines of HLA Hart’s distinctions between duty-imposing rules (that both CRM and the lynch mobs wanted to reform) and power-conferring rules (that only the CRM respected).

Kirkpatrick’s successful efforts to develop these case studies demonstrates the continued vitality of gap studies for sociolegal thought and our commitments to justice. No longer the empirical gaps between law on the books and law in action (gaps that began to collapse in the cultural turn towards constitutive legality), gaps are now more conceptual: the sovereign exceptions (Agamben 2005), aesthetic distances (Rancière 2004), or distinctive narrative genres (Ewick and Silbey 1998) that delaminate legal and social meanings. In Kirkpatrick’s book, the gaps are cleaved open by the violence designed to distinguish the rule of law from popular sovereignty, and to articulate them anew within a compelling moral vision. While politically charged, the gap exploited by uncivil disobedients is analytically murky: “understanding . . . the relationship between the rule of law and the rule of the people . . . emphasizes its complexities, its tensions, and its interwoven interdependent character” (p.56). Nonetheless, examination of this complexity is compelled, Kirkpatrick suggests, by the political weaknesses of the alternatives. Both the “dream of absolute submission to the law and the ideal of absolute dominance over law are alike” (p.112); “democratic citizens who continually bend their heads in the shadow of law or who are unable to look those who embody the law in the eye have lost something vital to their citizenship” (p.117).

Kirkpatrick’s study is rich in history and suggestive in its pursuit of other models for thinking about law’s social meanings. She misses several opportunities, however, to invite further inquiry in this short book. We do not learn enough about the gendered nature of political violence, even though the lynch mobs are aggravated and motivated by concerns over sexual violation. The articulation of appropriate norms of citizenship have often been masculinist, as has been control over the Judiciary for much of American history, and the toleration for private violence against women and slaves has itself been a legally acknowledged masculine prerogative. How the violence administered by uncivil disobedients plays within this sociolegal structure remains uncertain. This concern over gender can be extrapolated to other non-CRM mobilizations against the law. Opponents to same-sex marriage, for example, have also highlighted gender and sexuality, a backward-looking obeisance to “tradition,” and an effort to restore the law (and displace judicial control over legal doctrine) through popular sovereignty (Goldberg-Hiller 2004). The violence of these and other [*281] countermobilizations, such as those against Indians (Dudas 2008), is less overt than those of a lynch mob (though not absent, by any means), but so is the identity-based form of citizenship more common today. The link between civil disobedience of the past to these contemporary political and legal issues that transcend the CRM-inspired civil rights models of legal mobilization remains a significant issue in light of this work.

Finally, the link between what Kirkpatrick, following Brown (1975), calls the “lawless lawfulness” of the civil disobedient (p.14) and what Sarat and Hussain (2004) have called “lawful lawlessness” characterizing the exceptional discretion practiced by legal authorities deserves more thought. Is there a link between the violence from below and the extra-legal action from above – both articulated as a supplement to the rule of law – that have a common meeting point beyond their rhetorical justifications? Kirkpatrick’s book is worth reading and pondering for the ways that it makes one connect American legal history to these pressing issues.

REFERENCES:
Agamben, Giorgio. 2005. STATE OF EXCEPTION. Chicago: University of Chicago Press.

Brown, Richard Maxwell. 1975. STRAIN OF VIOLENCE: HISTORICAL STUDIES OF AMERICAN VIOLENCE AND VIGILANTISM. New York: Oxford University Press.

Dudas, Jeffrey R. 2008. THE CULTIVATION OF RESENTMENT: TREATY RIGHTS AND THE NEW RIGHT. Stanford, CA: Stanford University Press.

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

French, Rebecca. 2001. “Time in the Law.” 72 UNIVERSITY OF COLORADO LAW REVIEW 663-747.

Goldberg-Hiller, Jonathan. 2004. THE LIMITS TO UNION: SAME-SEX MARRIAGE AND THE POLITICS OF CIVIL RIGHTS (1st ed). Ann Arbor: University of Michigan Press.

Greenhouse, Carol J. 1989. “Just in Time: Temporality and the Cultural Legitimation of Law.” 98 YALE LAW JOURNAL 1631-1651.

Morone, James A. 1990. THE DEMOCRATIC WISH: POPULAR PARTICIPATION AND THE LIMITS OF AMERICAN GOVERNMENT. New York: Basic Books.

Rancière, Jacques. 2004. “Who Is the Subject of the Rights of Man?” 103 SOUTH ATLANTIC QUARTERLY 297-310.

Sarat, Austin, and Nasser Hussain. 2004. “On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life.” 56 STANFORD LAW REVIEW 1307. [*282]

Smith, Rogers M. 1997. CIVIC IDEALS : CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New Haven: Yale University Press.

Weber, Max. 1946a. “Politics as a Vocation.” In FROM MAX WEBER: ESSAYS IN SOCIOLOGY, H. H Gerth and C. Wright Mills (eds). New York: Oxford University Press, pp.77-128.

Weber, Max. 1946b. “Science as a Vocation.” In FROM MAX WEBER: ESSAYS IN SOCIOLOGY, H. H Gerth and C. Wright Mills (eds). New York: Oxford University Press, pp.129-156.

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© Copyright 2009 by the author, Jon Goldberg-Hiller.

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RESCUING JUSTICE AND EQUALITY

by G.A. Cohen. Cambridge, MA: Harvard University Press, 2008. 448pp. Cloth. $45.00/£29.95/€31.50. ISBN: 9780674030763.

Reviewed by Justin Zaremby, Department of Political Science, Yale University. Email: justin.zaremby [at] yale.edu.

pp.275-278

On November 27, 2002 an obituary in THE GUARDIAN stated that “[w]ith the death of John Rawls . . . the English-speaking world lost its leading political philosopher.” This statement was not unique. Since the publication of A THEORY OF JUSTICE in 1971, Rawls has been elevated to a pantheon of political theorists whose writings dramatically reshaped the course of political philosophy and modern liberalism. Students and teachers of political theory now debate the value of the difference principle, lexical ordering, and the veil of ignorance alongside Plato’s allegory of the cave. Indeed, in his new book, RESCUING JUSTICE AND EQUALITY, G.A. Cohen, while thoroughly criticizing Rawls’s liberalism, honors Rawls by stating that “at most two books in the history of Western political philosophy have a claim to be regarded as greater than A THEORY OF JUSTICE: Plato’s REPUBLIC and Hobbes’s LEVIATHAN” (p.11).

Although Cohen acknowledges the rigor and importance of Rawls, his new book offers two central criticisms of Rawls’s theory. First, he attempts to reveal how Rawls’s difference principle is not actually compatible with a truly robust theory of justice. Cohen rejects the Rawlsian emphasis on a political state, and the inequalities that the state allows, in favor of a more egalitarian conception of justice.

At the same time, he attempts a larger criticism of Rawls’s methodology. “Beyond the disagreement between me and the Rawlsians with respect to both the form and the substance of justice,” he writes, “there is a disagreement about how to do political philosophy, or indeed philosophy” (p.3). With a combination of humor and earnestness that runs throughout the text, Cohen observes that that difference is “completely explained by the fact that I am an Oxford man (of a certain vintage) and [the Rawlsians] are Harvard men and women. Oxford people of my vintage do not think that philosophy can move as far away as Harvard people think it can from pertinent prephilosophical judgment” (p.3). Cohen’s book is not simply a criticism of Rawls, but an attempt to infuse a particularly analytic approach to ethics and philosophy into post-Rawlsian liberalism.

The book is divided into two parts. In the first, Cohen tries to “rescue” equality from the substantive claims of Rawlsian liberalism. He looks specifically at the difference principle with its reliance upon Pareto-superior inequalities, and at the basic structure argument that drives Rawls’s thought. In the second part, Cohen seeks to rescue justice from Rawls’s methodology and willingness to rest his liberalism not merely on theory, but on real-world facts. Cohen’s goal, throughout, is to discover a purer form of justice than what is presented in [*276] A THEORY OF JUSTICE, and to indicate that questions of justice are not merely practical concerns of the state, but are vibrant and personal theoretical concerns for individuals in their everyday life.

Part I carefully analyzes Rawls’s use of the difference principle. Cohen argues against using any form of inequality to further the creation of a just society. Chapters 1 and 2 reveal Cohen’s primary source of disagreement with Rawls’s difference principle. According to the difference principle, social or economic inequalities can be justified if they can help the worst off in the society (or at least do not make the worst off even more worse off). Cohen launches his criticism through an engaging examination of a 1988 income tax shift in Great Britain. He refutes the view that inequalities allowed by the difference principle are fundamentally harmless to society even when they do not harm the worst off. What could be wrong with inequality if it does not make the worst off suffer more?

Cohen explains that the metric by which the suffering of the worst off is measured is based upon the existence of a world in which unjust inequalities already exist. “The further back one goes,” he writes, “temporally and causally, in the construction of the feasible set, the more one encounters open possibilities that were closed by human choice, and the harder it is to identify inequalities that do not harm the badly off” (p.33). At some point in history, choices were made that ensure that even “harmless” inequalities are tainted. Through a textual analysis of the THEORY OF JUSTICE, Cohen asserts that neither the difference principle, nor Rawls’s focus on Pareto optimality, demands the existence of inequalities in society and, as such, such inequalities should not be tolerated. A truly just society cannot be driven by inequality in any form.

Chapters 3, 4, and 5 offer Cohen’s most targeted attack on Rawls’s methodology. Cohen criticizes the scope of Rawls’s basic structure. He continues his earlier points about the difference principle, explaining that Rawls allows certain inequalities to persist as long as they are borne out of the basic structure of society and the difference principle. The basic structure concept is too vague for Cohen to allow it to serve as the fundamental justification for inequalities in society. He writes: “There is an important ambiguity in the concept of the basic structure, as that is wielded by Rawlsians. That ambiguity turns on whether the Rawlsian basic structure includes only coercive aspects of the social order or also conventions and usages that are deeply entrenched but not legally or literally coercive” (p.125). This failure, Cohen explains, “shipwrecks not only the basic structure objection but also the whole approach to justice that Rawls has taught so many to pursue.”

Additionally, Cohen criticizes the tendency of theorists to look only at the basic structure of society when studying justice. The existence of the basic structure distracts theorists from asking questions about how justice applies to individual choices. By only focusing on inequalities that arise as a result of the basic structure of society, instead of as a result of individual actions, supporters of Rawls fail to see the limitations of Rawlsian liberalism and the dangers of [*277] allowing any inequalities to exist in its system of distributive justice.

By the end of Part One, Cohen has made his case against allowing inequalities that would, in any way, use other individuals as means toward the achievement of personal or societal goals. His demand for a more radical egalitarianism than permitted by Rawls leads to his rejection of Rawls’s methodology in Part Two. In Chapter Six Cohen makes a strong attack on Rawls and other philosophers who “are disposed to think . . . that our beliefs about matters of normative principle, including our beliefs about the deepest and most general matters of principle, should reflect, or respond to, truths about matters of fact” (p.231). That view holds that justice cannot be discerned outside of an understanding of reality, and, just as importantly for Cohen, serve as a means of grounding abstract principles. Cohen argues that justice, as a normative principle, should not be defensible on the grounds of facts, but instead must be justified on purely philosophical grounds.

It is in the succeeding chapter where Cohen gives his strongest criticism of Rawls. Cohen rejects what he calls Rawlsian constructivism, an approach defined by the view that “a principle gains its normative credentials through being the product of a sound selection procedure” (p.274). Such an approach to justice fails because it “treats justice as sensitive to certain sorts of fact and because it fails to distinguish between justice and other virtues” (p.275). The Rawlsian belief that justice will grow out of the proper application of lexical ordering to the basic structure of society and difference principle is a constructivist notion.

Justice, for Cohen, is not an ideal that grows out of facts, nor out of the teleological approach of Rawls. Moreover, justice is not merely a set of principles to be enacted by the state. Rawlsians, according to Cohen, approach justice as a standard by which to balance the different interests of the better and worse off. The pursuit of justice thus becomes a matter of regulation instead of philosophy. The logical arguments of Rawls cannot be truly binding as principles of justice, because his view of justice is not purely normative. In his final chapter and appendix, Cohen responds to a series of critics who argue against his view that justice can be found on the personal level, as opposed to within the larger economics of a state. His responses are pointed and follow the same methodical style that fills the rest of the volume.

Cohen’s book deserves much praise. His criticism of Rawls is both thoughtful and thorough, as he pits himself against both the substantive and methodological claims of Rawls and his defenders. Although Cohen’s underlying approach is Marxist, his criticism of Rawlsian justice should welcome a broad audience. His claim that justice is a principle that should rise above facts and, indeed, above the realm of optimization, will appeal to figures on both the far left and the right. Cohen’s attempt to save justice from the realm of optimization, and the Rawlsian interest in forming a properly regulated and just society should inspire further critiques of Rawls. Moreover, the book does an excellent job of exploring and criticizing the philosophical methods of Rawls, in [*278] addition to the political implications of his work. Cohen’s real-world analysis of ideas such as taxation and organ sales help further what could be a largely abstract argument.

A central criticism that can levied against the work, though, comes from its structure. While Cohen’s analysis is piercing, his language is sometimes difficult to follow, particularly as he often offers several iterations of the same basic idea. What he gains in rigor, he sacrifices in narrative. Additionally, it is unclear whether his analysis of Rawls is fair. After all, Rawls’s theory, with its focus on a basic structure and facts, does not necessarily claim to be as idealistic a vision of justice as Cohen would like. That is, while Cohen rightly criticizes certain flaws in Rawls’s argument, Cohen’s idealism may have forced Rawls to become an unwilling interlocutor.

REFERENCES:
Rawls, John. 1971. A THEORY OF JUSTICE. Cambridge, Mass: Harvard University Press.

Rogers, Ben. 2002. “John Rawls.” THE GUARDIAN, November 27, 2002 (available at http://www.guardian.co.uk/news/2002/nov/27/guardianobituaries.obituaries).

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© Copyright 2009 by the author, Justin Zaremby.

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WHEN PRAYER FAILS: FAITH HEALING, CHILDREN, AND THE LAW

by Shawn Francis Peters. New York: Oxford University Press, 2007. 272pp. Hardback. $29.95/£17.99. ISBN: 9780195306354.

Reviewed by Christine L. Nemacheck, Department of Government, The College of William & Mary. Email: clnema [at] wm.edu.

pp.272-274

In WHEN PRAYER FAILS, Shawn Francis Peters provides a comprehensive overview of faith-based medical neglect of children throughout the United States and earlier incidents dealt with in the British courts. Peters’ account is especially well done in that, although its focus is on the processing of parents and religious healers in the courts, he consistently provides a holistic account of actions by legislators, prosecutors, judges, juries and the public at large. Through this broad focus, Peters tells a compelling story of how each of the parties have historically felt conflicted regarding the guilt of individuals who have lost their children due to failed faith-based treatments, and even more so have been troubled by imposing harsh sentences on these individuals. Child neglect or endangerment laws in the United States have long contained exemptions for parents who do not provide their children with medical treatment due to their own religious beliefs. In addition, Peters’ approach nicely includes analysis of the religious groups, such as Christian Scientists, who have actively pursued such exemptions through successful grassroots lobbying at the state and federal level. In short, Peters provides an excellent overview of the history of faith-based medical treatment of children in the United States.

One of Peters’ main themes is the tension between competing rights that are triggered in cases involving faith-based medical treatments. First, there are clear tensions between First Amendment religious liberty concerns and the state’s responsibility to protect children’s welfare. Interestingly though, in many of the earlier cases Peters discusses, the debate about the First Amendment is secondary to an argument over whether medical science could have been any more beneficial to the ailing child than was prayer. As medicine advanced and became accepted as a science, the religious liberties claim became more prominent. When discussing these changes, Peters also incorporates the changing view among the public that the state has a responsibility to protect children and that the courts are an appropriate venue for resolving such disputes. This confluence of events meant that the courts became the stage on which these tensions were resolved, or on which they have remained unresolved.

Peters begins his book with a discussion of several cases in which children were not given medical treatment because of their parents’ religious beliefs. In addition to telling the stories of several children who would likely have lived had their parents pursued a medical course of treatment, Peters also introduces advocacy groups, such as [*273] Children’s Healthcare Is a Legal Duty (CHILD), who have lobbied against religious exemptions in state manslaughter and child-neglect statutes. On the other side of the debate, Peters discusses the Christian Science Church’s success in lobbying, first to get many of these exemptions, and then to retain them in the face of opposition groups’ efforts.

After providing an excellent introduction to faith-based healing and the legal question of neglect, Peters examines the Biblical basis for spiritual healing and discusses the efforts of science to determine whether prayer can have beneficial effects on healing. The chapter focuses primarily on studies of whether people who benefited from the prayers of their friends and relatives, or even strangers, had better health than those who did not receive such prayers. The evidence Peters presents tends to show that prayer did not have such effects. Peters also cites studies indicating that examining the effects of prayer on health is inherently problematic due to the difficulty of controlling whether someone is the subject of concerted prayer. Peters’ focus on studies examining prayers for others versus the effects of prayer or meditation on one’s own health is reasonable, given that the cases examined in the book largely concern children for whom adults direct their prayers. But the discussion also seems to illustrate a bias in the author’s depiction of faith-based healing that appears as an undercurrent throughout the book.

It seems clear from the author’s discussion, indeed even the title of the book, that he sees cases of failed faith-based healing as conduct that should not be protected by the First Amendment’s religious liberty guarantees. Most of us might well agree with him on that point. But in a book analyzing the unresolved legal treatment of such faith-based practices, Peters ought to state his position up front. Contrary to Peters’ views, the religious practitioners of such faith healing do not believe, when a child dies, that their prayer has failed or that they have committed a crime. Instead, they fervently believe that the death was God’s will. Peters goes on to discuss the belief-action distinction prominent in common law concerning conduct based on religious beliefs, but dealing first with this central assumption would lay a stronger foundation for the analysis that follows.

In chapters three and four, Peters takes the reader on a tour of early religious-based medical-neglect cases in the British courts and in the United States. Many of the cases in the British courts dealt with a religious sect known as the Peculiar People who relied on the Epistle of James’ instruction that illness be treated with elders’ prayers and the anointment of oil. These early British cases in which parents were prosecuted for their children’s death after shunning medical treatment in favor of prayer foreshadowed the debates that would confront American courts: Could medicine have saved the child? Did present statutory law cover such scenarios? Were the parents’ beliefs sincere? The outcomes in the British courts were also similar to those at which judges and juries in the United States were to arrive years later. Typically parents were found guilty of neglect but were not punished or received sentences of parole with [*274] guarantees that they would provide medical treatment to their other children as needed in the future.

Peters devotes chapters five and six to a discussion of the Christian Science Church and follows up in chapter seven with a shorter, but similar discussion of the Faith Tabernacle, a group largely based in Pennsylvania. Peters’ account of Christian Scientists’ beliefs and practice of faith-based healing is again excellent. What is particularly interesting is his attention not only to the cases they fought in the courts, but also their successful grassroots lobbying efforts with respect to religious exemptions in state manslaughter and child-neglect statutes. This comprehensive perspective provides insight into the fact that battles concerning rights and liberties are rarely isolated to one branch or level of government. To understand properly the law in these areas, we must take a more macro-level perspective on its development, and Peters does just that.

After an interesting discussion of spiritual healing and reproductive rights in chapter eight, Peters moves on to discuss, in chapters nine and ten, several cases where spiritual healing resulted in children’s deaths in Oregon and the ensuing legislative battle to repeal the religious exemption in Oregon’s murder statute. That exemption allowed parents to claim as a defense to murder that they had pursued religious healing practices rather than medical treatment. Peters again examines the intense lobbying efforts by Christian Scientists, but this time those efforts failed, and the exemption to Oregon’s murder statute was repealed.

Peters’ discussion of whether such repeals will have a deterrent effect on parents is an especially interesting one in cases where sincerity of beliefs (and thus one would think that changes in the law would not be a deterrent) is one of the standards by which our courts gauge defenses based on religious principles. Some initial studies have indicated that there have been fewer reports of children’s deaths in groups adhering to spiritual healing. However, given that the exemption no longer exists, one wonders whether underreporting and/or efforts to hide such incidents have also increased.

Peters wraps up his discussion of religious-based child-neglect by examining changes in state laws across the United States in comparison to those places where, despite children’s deaths due to a lack of medical treatment, religious exemptions in manslaughter and child-neglect statutes have been maintained.

Peters’ book is, in short, an excellent resource on faith-based healing, or lack thereof, and the law. It is expertly written and will be of interest both to First Amendment scholars as well as to non-academic readers with an interest in religious liberties, the care of children and the law. It will also be useful to graduate and undergraduate students in civil liberties, religious liberties or more broadly defined law and politics courses. In addition to learning about the law in this area, students will also be drawn into Peters’ excellent writing and story-telling throughout his account. I highly recommend the book.

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© Copyright 2009 by the author, Christine L. Nemacheck.

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LAW AND RELIGIOUS PLURALISM IN CANADA

by Richard Moon (ed). Vancouver: University of British Columbia Press, 2008. 328pp. Hardcover. CDN$85.00/US$98.00. ISBN: 9780774814973.

Reviewed by John von Heyking, Department of Political Science, University of Lethbridge. Email: john.vonheyking [at] uleth.ca.

pp.255-271

The essays in this volume ponder the nature of religious freedom and pluralism in Canada. In addition to considering recent case law, the authors inevitably reflect upon the nature of religion, freedom (and the nature of the individual endowed with freedom), equality, autonomy, and the meaning of “secular” and “secularism.” In terms of these deeper political questions, this collection of essays by mostly legal scholars is a mixed bag because they raise important questions without moving beyond the horizon of liberal (and, as I shall argue, religious) assumptions concerning the good society. Moreover, as most of them are legal scholars, they attempt to privilege legal decision making over that of legislative assemblies. But if, as several of them admit, judicial decisions share deeply in the common prejudices and opinions of the majority, then what is to be gained by looking to the judiciary to protect religious freedoms when the judiciary, and the legal experts who assist and appeal to them, simply replicate the mistakes made by so-called majoritarian institutions like legislatures?

Several interconnected examples of the limited horizon of the authors suggest themselves. If Canadian law is to be based upon secular principles, which are equated with reason, then one needs a way for reason to justify itself. What is the ground of reason? What is the horizon that “privileges” reason’s capacity to know? No one says. Such is the enduring faith of the liberal order.

Why is the individual the ultimate source of meaning, whereby governmental coercion is an affront to its dignity, as most of the authors agree? How is it that no law, association, religious group identity, can fully “capture” the meaning of the individual? This is why, for instance, the Islamic sharia was rejected as the basis of arbitration in Ontario: Canadians come before the state as individuals, not as mediated members of a religious group. Why does the meaning of what it is to be an individual transcend not just the power of the state, but the power of language to determine what and who we are? What is it that makes us individuals? Or, if one objects to the incarnational metaphysics this statement suggests, then what is it about us individuals that enables us to make ourselves individuals, a circular reasoning suggested by the notion of autonomy? Must we be some sort of Baron Munchausen Ur-individual who, in lifting himself out of the primordial swamp by pulling up on his own hair, “posits” the individual (so asks Charles Taylor, pondering Hegel’s speculation on this topic (Taylor 1979, 39))? The “secular” explanation is probably even more absurd than the one that works [*256] within the revelatory horizon that constitutes the individual.

The absurdity of “secular” constructions of the “individual” has ethical and political implications. These can be seen in the focus on autonomy as constitutive of the individual, which tends to marginalize those, like the mentally and physically handicapped, the elderly, the dying, and, yes, the unborn, because their capacities for “choice” tend to be viewed as inferior or deficient in comparison with the “able-bodied.” Is it any wonder then, it takes someone from a revelatory tradition to articulate how working with the severely mentally and physically handicapped forces those who are “able bodied” to confront the violence within their own souls: “daily dealings with people who have handicaps makes those involved face their own violence. Confronted by the irreducibility of the other, the one whom they mean to serve but whose condition they cannot ameliorate, they discover with horror that they are capable of striking them, or even wanting to do away with them” (Young 2007, 32)

Our legal categories that point to the irreducibility of the individual work within a horizon that should induce us to behold the weakness of the other, and ourselves (Walsh 2008; 1997). Assertions of autonomy, in this light, are assertions of implied violence. Failure to recognize the irreducibility of the individual “that is higher than the universal” (to use Søren Kierkegaard’s formulation) lead to other distortions like the “unencumbered” or “expressive” self, or, conversely and more dangerously, the “full human being” recognized by the state (p.239), as if the state (however defined) can possibly provide such complete recognition.

The contributors of this volume work within the horizon of these questions without actually bringing these questions into clarity. They assume the existence of the individual whose dignity must be religiously protected, from the coercion of both state and religious authorities. Many of them assume the existence of the “secular” without actually reflecting upon how “reason” can ground itself.

Is the same agent that makes us individuals the same that makes us equal? Many serious thinkers like Alexis de Tocqueville (not to mention Friedrich Nietzsche) regard equality not as reasonable, but as a sentiment. Canadian Supreme Court judges at times also appear to treat equality (as well as dignity) as a sentiment, a mere preference we “happen” to like in this day and age. We affirm equality because we arbitrarily feel like it. Or we are too risk-averse to assert our imagined superiority over others, and too envious to accept our inferiority. If equality is a sentiment, then a “public reason” whose first principle is equality is fallacious. And therefore treating the capacity of law to define and enforce provisions relating to religion and religious freedom as authoritative is equally arbitrary (Heyking 2009a, 324-34).

I need not rehearse arguments demonstrating how religious equality precedes – historically as well as ontologically – political authority, except for one, the Hegelian one: in order for me, as a slave, to object to me being a slave, I first must have it in my mind that there are no intermediaries between God and me. This is the fruit of the [*257] Protestant Reformation. Arguments for a “rights based democracy” where the individual relates directly and without mediation with the state presuppose the Protestant Reformation, not only historically but ontologically. A “secularist” intellectual cannot get away with a wave of the hand, indicating that we progressive Canadians have moved beyond into a “secular” end of history when the moral universalism upon which the liberal order operates was established and continues to be sustained by a revelatory position, and that all those participating in it acknowledge it, if not by their words, then by their actions. Failure to recognize this ensures legal scholarship on religious freedoms consists in nothing more than hieroglyphic genuflection by a priestly caste upon the altar of equality (Heyking 2009b; 2009c). Failure to clarify the horizon means the worry is not so much the intrusion of religion into politics, but the intrusion of judicial politics into religion.

And so, we have a collection of essays by several leading legal scholars who, working within the horizon of meaning just outlined, are certain the promise of the freedom of religion under Canada’s Charter of Rights and Freedoms is good, but unsure why it is good.

The first essay stands out from the others in this volume. Shauna Van Praagh considers a case involving the rights of Chasidic Jews in Montreal to break their condominium bylaw by constructing a succah or shelter to celebrate the Jewish harvest festival. Her analysis stands out because she analyzes the case, not through a constitutional prism, but through the tort of nuisance, or troubles de voisinage as it is known in Quebec where the claimant lives. According to the Civil Code of Quebec, “neighbors shall suffer the normal neighborhood annoyances that are not beyond the limit of tolerance they owe each other” (cited, p.23). Her analysis invites not so much a top-down constitutional approach to managing multi-religious and multi-ethnic communities (which characterize Montréal), but as a way of seeing how neighbors themselves manage their relations. Van Praagh invites an approach that considers religious freedoms in light of concrete neighbors and their associational life, instead of through the abstract approach of conceiving rights utilized by constitutional analysis. As Alexis de Tocqueville notes of this approach, associational life becomes a school for democratic citizenship because citizens learn how their vague and abstract rights translate into, and become transformed in, their concrete lives with others.

Whatever the merits of Van Praagh’s approach, the fact that the case came before the Supreme Court and was resolved there, in an overly abstract manner according to other contributors to the volume, undermines her argument. In the case, the Supreme Court considered the testimony of a rabbi who informed them that it does not really matter whether the succah is constructed on someone’s private balcony, which the condominium board prohibited, or in a common area, which the board permitted. The Supreme Court rightly avoided wading into doctrinal issues of Chasidism. However, in doing so, the Court adopted (or reasserted) an individualistic approach to its understanding of religion because it based its decision on the religious conscience of an individual believer [*258] without worrying whether his beliefs have standing within the tradition of his religion. While politically prudent, the Supreme Court’s jurisprudence, as several other contributors to this volume observe, appealed to the individual’s conscience, which means they read the Chasidic religion as a Protestant might read it. While the appellant in this case won his case, projecting one’s own religious understandings to other religions can undermine their rights, as several other authors observe.

In Chapter Two, Jennifer Nedelsky and Roger Hutchinson consider the debate within the United Church of Canada as a model of accommodation in the wake of Parliament’s decision to legalize same-sex marriage. While religious opponents received most of the media attention when this was being debated, the United Church supported same-sex marriage. However, according to the authors, it accommodates opponents within the church by allowing individual congregations to decide whether to permit their pastors to perform same-sex marriages. The UCC has adopted an official policy endorsing same-sex marriage but permits considerable local control, to the point where congregations may even prohibit their pastors from celebrating same-sex marriages outside the congregation.

How the legalization of same-sex marriage affects the state of marriage, and the rights of its opponents, is still getting played out. Some provinces, despite the wording of the federal legislation, have infringed the rights of marriage commissioners who object to same-sex marriage, while others have recognized and affirmed their objections of conscience. Using the UCC model of accommodation, Nedelsky and Hutchinson suggest Canada can do better to accommodate opponents of same-sex marriage, including ceasing prosecutions by human rights tribunals against marriage commissioners and those who publish materials critical of it (and of homosexual behavior).

One wishes Nedelsky and Hutchinson would have been a little clearer on their efforts to accommodate. In the wake of the legalization of same-sex marriage, the political fights have now moved to education and public schooling. There have already been cases. In TRINITY WESTERN UNIVERSITY v. BRITISH COLUMBIA COLLEGE OF TEACHERS (2001) (ruled before Parliament legalized same-sex marriage), the B. C. agency that accredits university education faculties so their graduates may teach within the public schools refused to accredit TWU because its student behavior code prohibits students from engaging in homosexual behavior (and all forms of premarital sex), which it considers as sinful. The B.C.C.T. argued the university graduates homophobic teachers who would harm public school students. The Supreme Court ruled in favor of TWU, but as Benjamin Berger notes in his contribution to this volume, it did so only for evidentiary reasons, as the B.C.C.T. could provide no examples of TWU students discriminating.

But if Nedelsky and Hutchinson genuinely advocate a “thicker” version of accommodation, should they not advise the B.C. Ministry of Education to ensure graduates of TWU. (or any other university) are free to express their views? Failure to accommodate implies mere disagreement constitutes [*259] “discrimination” even when disagreement is conducted respectfully and sympathetically. This failure to distinguish disagreement from “discrimination” represents a truncation of rights because it redefines “acceptable” speech suitable for “public” debate where “public” has now been imperiously taken over by a particular faction defining terms of access. The problem of how “law” defines the “public” or “culture” gets thematic treatment in Benjamin Berger’s contribution, discussed below.

For example, the B.C. Human Rights Tribunal and the British Columbia Supreme Court have ensured that teachers are prohibited from expressing their views even outside the classroom, as was the case for Chris Kempling, who lost his B.C.C.T. accreditation for writing letters to a local newspaper (KEMPLING v. THE BRITISH COLUMBIA COLLEGE OF TEACHERS, 2004). More recently, the B. C. Ministry of Education has introduced a “Social Justice” curriculum in response to a human rights tribunal decision that requires schools to promote not just tolerance but acceptance of homosexual behavior. While part of its intent is to prevent bullying, one wonders whether stifling ethical debate actually exacerbates bullying. Moreover, it consists in what one critic of same-sex marriage calls “sexual dogma” (Benson 2005). If proselytizing religious dogma is forbidden in public schools, then proselytizing “sexual dogma” should be too, for both are forms of dogma. Better to use the approach suggested by Lois Sweet, who suggests pluralism means “teaching about religion” (conveying information) is acceptable while “teaching religion” (proselytizing) is not; similarly, should not pluralism mean “teaching about sexual viewpoints” be acceptable while “teaching sexual dogma” is not? Those who support what the B.C. Ministry of Education’s action might suggest such freedoms are a luxury when the danger of bullying to homosexual students is so great. This argument seeks to restrict freedoms in the name of a purported public good or public safety. One sees similar arguments made to curtail the rights of religious minorities in public health fields, including pharmacists who refuse to prescribe abortifacients and doctors who refuse to refer patients for abortions. But is this not the same “logic” – of restricting freedoms in the name of “safety” – that brought about infringements of freedom like the Patriot Act?

Nedelsky and Hutchinson, along with others in the volume, argue the legalization of same-sex marriage constitutes an “expansion”; it has become more inclusive. All accept that it is fully supported liberalism, though they seem not to be aware of some philosophical efforts arguing otherwise (Shell 2004; Farrow 2007; Farrow 2004). They also seem unaware France rejected it because of fears it would lead to further state intrusions into family life.

Even so, none of the contributors explain what the new line of exclusion is. The function of a legal category (one might say the very essence of a category) is to include some attributes and exclude others. The authors celebrate the legalization of same-sex marriage without considering what it excludes. They assume but do not consider whether the new marriage category is a [*260] coherent category. David Schneiderman celebrates the new category because it explodes the supposed reduction of heterosexual marriage to procreation (p.74). One wonders whether same-sex marriage, in restricting marriage to people engaged in procreative and nonprocreative sex, is any less arbitrary or reductionistic. In Canada marriage remains restricted to two unrelated individuals engaged in sexual relations. So Canada currently excludes polygamy (the Supreme Court may soon face a constitutional challenge, but I expect it will uphold the prohibition on equality grounds), polyandry, and polyamory. The advocates of polyamory, such as those who were involved in R. v. LABAYE, [2005] and in a case in Belgium where a man “married” two women and all were sexually involved with one another (Kay 2006), celebrate sexual relations among all partners (as opposed to polygamy for example, where the multiple wives have sexual relations only with the husband). Polyamorists have a strong case for further “expanding” (or reducing or debasing, as the opponents of same-sex marriage would claim) marriage.

Perhaps polyamorists would have a better case than Platonic friends who seek the advantages of marriage. Indeed, the contributors of this volume are at pains to describe the social or cultural origins of legal categories. One can easily identify the traditionalist and biologically deterministic roots of the current definition of restricting marriage to two people (of different or of the same sex). But, if we are to avoid the reductionism Schneiderman fears, then there is nothing about the current legal category of marriage to overturn that restriction.

An entrepreneurial legal activist, like those who first litigated cases involving pensions and other material benefits on behalf of same-sex couples, might devise a “small steps” strategy whose ultimate aim is to render marriage as so plastic that it can be defined any way its members define it – except, of course, if those members do not engage in sexual relations with one another. That would upset the new “sexual dogma.” A libertarian might celebrate this plasticity, but this move might conflict with the best interest of child legal doctrine. Children tend to love their mother and father more than numerous aunts and uncles, who lack that special and exclusive parental connection, and thereby have ample opportunity to “pass the buck” when baby is up all night with a fever.

David Schneiderman’s contribution provides the beginnings of a theory of Canadian political pluralism. In promoting (and in some cases finding) a view of the Canadian public sphere as a having multiple, overlapping, and contesting authorities, he appeals to Alexis de Tocqueville and the British political pluralists including Harold Laski and John Figgis. He covers terrain nearly identical to that covered previously by neo-Calvinists including Jonathan Chaplin (Chaplin 2000, 617-76), who have explored pluralistic models of law in Canada. He argues for the importance of associations in organizing political life. Associations enable individuals to organize themselves for collective action, one of those actions being protection against the state. Schneiderman’s analysis of Canadian political life is relatively balanced, but, like many other contributors, he has a tendency to [*261] confuse “secular” with “sectarian” (p.79), which was a distinction the Supreme Court maintained in TRINITY WESTERN v. B. C. C. T. His pluralism strains at an undercurrent that treats the “secular” as monistic.

Bruce Ryder compares Canadian law with the United States, Turkey, and France, and finds Canadians have been more successful in accommodating religious practice than the others. Like Nedelsky and Hutchinson, he returns to the wake of same-sex marriage and the plight of marriage commissioners and their consciences, finds requirements to accommodate them a good thing, and criticizes human rights commissions for refusing several complaints made by marriage commissioners (p.102).

Alvin Esau’s essay on the status of Anabaptist communities and other “illiberal” communities under Canadian liberal law provides an excellent test for the limits of Canadian pluralism. While most other contributors focus on the plight of individuals (which is where most of the case law is), Esau considers the capacity of religious communities to flourish under, and in some cases at arm’s length from, Canadian law. His is a subtle analysis of the interface between the “inner law” of communities and the “outer law” of Canada. While religious communities have generally prospered in Canada, he sees a danger in applying administrative law to the church (which assumes the church is a statutory body exercising public powers) (p.122). This occurs when there are disputes among church members, which enables courts to intervene in internal church disciplinary procedures or hiring policies. As we saw the in the case of the Chasidic succah, the Supreme Court wants to avoid interfering with church matters when it views conflict in terms of rights and constitutional law; however, “only rarely do courts even ask whether this judicial review is really appropriate” when they consider the conflict a matter of administrative law.

Esau further defends a form of pluralism that combats the kind of liberalism that would want “liberalism all the way down” into all parts of civil society, as this notion assumes liberal virtues can generate themselves and do not require alternate accounts of human flourishing to test, challenge, and develop liberalism (p.131). He also challenges “illiberal” religious groups to develop a better understanding of the liberal order. After all, “illiberal” groups survive if not flourish under conditions of the liberal order; the opposite would not be true. Indeed, “illiberal” groups may not even flourish in their own “illiberal” state!

Pascale Fournier provides the first of two analyses in the volume of the effort in Ontario to import sharia law into the Arbitration Act in order to enable Muslims to resolve divorces according to their own customs (Lorraine Weinrib also analyzes it). After much public outcry, mostly by women, the Ontario government decided not to amend the Arbitration Act. The effort to amend it was spearheaded by former Ontario Attorney-General, Marion Boyd, who wrote a report detailing reasons for amending the Act. She argued that religious freedom, pluralism, multiculturalism, and even equality support inclusion of sharia. Fournier argues that the Boyd Report, titled DISPUTE RESOLUTION IN FAMILY LAW: PROTECTING CHOICE, PROMOTING INCLUSION, treated the [*262] realities of Muslim women in overly abstract terms that missed the costs they would unfairly bear in such proceedings. She illustrates the concrete realities with a fictional account (reconstructed using details of real cases) of how the mahr, a bargaining endowment, gets negotiated before marriage and how it is handled when divorce becomes an option. Islamic customs simply provide too many obstacles for women in cases of divorce that Ontario could not justify amending the Arbitration Act without infringing on fundamental liberal principles of equality. Fournier concludes that calls for the state to maximize the cultures it “recognizes” has the danger of “misrecognizing” some minorities who would rather not receive the favor of such recognition (p.154). Fournier doubts all religious practices can “travel to Western liberal courts without carrying a very complex interaction among several parties whose interests are often opposed as to its recognition.” In other words, not all religious beliefs and practices comport with the liberal order, which means cutting and pasting them into Canadian law can do more harm than good.

This brings us to John Borrows’ discussion of the incapacity or unwillingness of Canadian courts to recognize aboriginal beliefs, most notably of the living earth, and so to extend protection under constitutional religious freedom provisions. As I write this review, the Canadian Political Science Association has a complaint before it against Frances Widdowson and Albert Howard, authors of DISROBING THE ABORIGINAL INDUSTRY (2008). The complainants allege that the authors’ criticisms of aboriginal beliefs, including earth worship, constitute hate speech. The authors argue that governmental solicitude toward such beliefs have hindered economic and social development (which, for many on-reserve aboriginals, compares with conditions in the developing world) and equality of resources (as resources are distributed to chiefs, and the government relies on them to distribute them to members of the tribe without further ensuring they do so).

Borrows describes how, for many aboriginals, “the Earth is the individual,” the ultimate source of meaning and deserving not only of protection, but as a living guide to political and social action (pp.165-167). Admitting it can be difficult to determine what the earth intends (pipe ceremonies are largely for giving thanks; he does not explain how the earth’s intentions enter into the deliberations of aboriginals), Borrows suggests it provides a community for the living, the unborn, and the dead. One wonders whether Edmund Burke, for whom community is also constituted by the living, dead, and unborn, might find agreement with aboriginals on this point. Borrows contrasts the aboriginal vision, sometimes with the general Christian paradigm of religious freedom, and other times the post-Reformation understanding (p.168). The distinction is important. For example, the medieval prohibition of usury was based on the fact that usury, or interest, was not generative. The earth produced beings that grew (i.e., crops), but money was sterile. Dorothy Sayers cites the old commentator Gelli’s observation that Dante in the INFERNO places usurers near the sodomites because one makes fertile what is by nature sterile, and one makes sterile what is by nature fertile [*263] (Dante 1949, 178). For Dante, both disrupt the community of being in analogous ways. What might aboriginal spirituality say of same-sex marriage? Would it resemble the “earthy” medieval view? Or does Alongquin spirituality, like other aboriginal spiritualities, have a category of berdache “man/woman” (or more accurately a woman’s spirit in a man) that might be called upon to unsettle male/female categories? Still recalling Dante, what might aboriginal spirituality say about the worldwide financial collapse? Even so, Borrows’ description of the earth has affinities with the pre-Christian Platonic and Stoic myth of the anima mundi, which, despite the Christian differentiation, finds its way into medieval Christian attitudes toward the earth.

Despite his advocacy of extending legal protection to the earth, Borrows focuses on the rights of two individual aboriginals that were infringed when the Court ruled against their religious freedom claim to shoot a deer and burn its flesh as a thanksgiving ritual to the earth. Borrows suggests a better understanding of earth would have assisted the Court to respect the two individuals’ freedoms. That could be. However, it was the freedom of those two individuals that were at issue, and are at issue for Borrows, not the freedom of the earth. Just as Christians are not concerned whether the Court recognizes Christ as a legal person, nor Chasidic Jews concerned whether the Court understands the complexities of the succah, so too is Borrows ultimately unworried about what the earth thinks, but rather whether aboriginal individuals are inhibited from practicing their religious freedoms. I emphasize “individuals” because Borrows accepts them as the appropriate claimants upon the law. In this sense, he agrees with the workings of the “post-Reformation” Canadian legal understanding of religion. Yet, he is uncertain how to reconcile earth worship and the status of the individual. This uncertainty is reflected in aboriginal self-governance, where individuals cannot claim rights directly from the state, but through tribal governance structures, mostly chiefs. This “communal” form of self-governance has contributed to the restriction of rights for numerous subminorities, including women and off-reserve aboriginals in Canada.

In her analysis of the problem of defining religion in Canadian law, Lori Beaman provides perhaps the most illuminating discussion of the complexities of law and religion. While she also criticizes the courts for perpetuating “Christian hegemony,” she also reveals how much her own analysis works within the horizon established by Christianity. Beaman demonstrates how difficult (impossible?) it has been for the courts, as well as sociologists, to define religion. There is something comic in their attempts, as there always is when one uses the methods of reflection to describe an existential condition. It is as if the sociologist or jurist tries to identify the essence of a thing by counting up its external qualities, which is like trying to define a human being by counting up its limbs, organs, cells, and so on. Religion poses a quandary because human beings try to relate themselves to what is infinite, eternal, or absolute. They try to define their experience and their existence by what is beyond themselves. However, we cannot detach ourselves from our existence; we can only look at ourselves from the corner of our eye, as [*264] it were. Our language, which we use to define things, derives from the objects of the world. But we cannot define that which is not an object of the world. This is as true for religion as it is true for love or friendship (which is why the best treatments of religion, love, and friendship have been in the form of dialogue, not sociological treatise, not to mention jurisprudence!).

Beaman’s sociological analysis shares in some of this constrictive language, though her analysis pushes beyond this constriction. Her example of the “Church of the Holy Shoelace” as a way of getting students to see the difficulties in defining religion and religious freedom is helpful to students as well as to scholars because it actually invites them into a sympathetic dialogue with its imaginary adherents. Beaman’s discussion is organized according to what one might regard as the great polarity of concepts that the courts have considered in defining religion: the content of a religion v. the sincerity of its believer(s). The Supreme Court has found itself skirting both these issues but never taking any of them up directly because of the illiberal implications of trying to determine 1) whether a religion is “true” and 2) whether the believer is genuine or a fraud. In trying to avoid (1), the Court ends up closer to (2), but without ever fully embracing it. Yet, the nature of the Supreme Court’s role seems always to require it to confront these two related problems.

Beaman, like many other contributors, criticizes the Court for perpetuating “hegemonic Christianity” with its categories of “orthodoxy” or the dichotomy of belief and practice. She focuses on a case where the Court had difficulty understanding the ritual importance of a kirpan carried by a Sikh. Such practice is said to confound the categories of sacred and profane latent in Christianity, because Christians or “post-Christians” regard it simply as a weapon (p.210). I am unsure a Christian could not recognize a kirpan as a sacred artifact, though she would need to be told why the kirpan in particular is sacred.

Beaman appeals to philosopher James Tully’s notion of recognizing the other, of recognizing their “lived religion,” as a way of transcending this imperialistic way of imposing “our” categories onto “them.” I am unsure what to make of her claim. On the one hand, she explains it as a way of, with patience, tolerance, and sympathy, understanding another religion as its adherents understand it themselves. This might be called the first principle of interpretation. It might also be what Christians call loving one’s neighbor, which, as the example of the physically and mentally disabled shows, is extremely difficult.

On the other hand, Tully, in his STRANGE MULTIPLICITY: CONSTITUTIONALISM IN AN AGE OF DIVERSITY, goes further than what Beaman describes (Tully 1995, 22; see Ray and Heyking, n.d). There, Tully uses the image of Haida sculptor Bill Reid’s “The Spirit of Haida Gwaii” to give his rendition of pluralism. The sculpture is a boat containing a motley crew of mythical figures representing a lively “conversation.” So diverse are these voices that they cannot even understand each other. Tully observes that this is how we experience other cultures: their unfamiliarity forces us out of our comfort zones, and understanding [*265] them recedes. In the center of the boat stands Kilstlaai, whom Tully compares with the mythical Greek soothsayer Tieresias. As chief, he has authority to care for the common good. His is a universal perspective that transcends the diversity of voices in the canoe. Tully wants his reader to consider “The Spirit of Haida Gwaii” as emblematic of multiculturalism, but it is unclear what Kitlstlaai represents. A perspective that stands over pluralism seems at worst to be dictatorial, and at best managerial, neither of which are institutions political pluralists support.

Since Beaman does not consider this ambiguous embrace of benevolent tyranny that Tully’s pluralism appears to endorse, it is safe to conclude she embraces the aspect whereby we offer sympathetic understanding of “lived religion,” which, as I indicated, sits comfortably within the Christian horizon. Despite her criticisms of the Court’s perpetuation of “Christian hegemony,” her own analysis sits comfortably within it. This shared horizon is also true of one of her theoretical guides, Michel Foucault, whose analysis of “power relations and their sedimentations” presupposes a view of power that 1) singles it out as a topic of study and 2) requires power to justify itself (not simply qua particular form of power, but qua power). Only the paradoxical position of being powerless, like the example of the physically and mentally handicapped, can presuppose this. This is why, perhaps, commentators have so fruitfully compared Foucault with the first theorist of power (in these terms), Augustine of Hippo, whose own perspective is based on the person who is powerless (Dodaro 1994; Schuld 2004; Gregory 2008).

Richard Moon similarly asks why Christianity retains its influence when he ponders why the Court insists on treating religion as distinct from conscience: “if autonomy is the value that underlies our commitment to freedom of religion or conscience, then the freedom’s protection should extend equally to religious and non-religious beliefs and practices. Yet . . . religious beliefs and practices continue to be at the centre of the Canadian freedom-of-religion or conscience cases” (p.219). What accounts for the persistence of protecting a category of belief that, at least from the perspective of the state, does not differ from other categories (like the beliefs of agnostics, for instance)? Why single out religion for what seems like special protection?

Part of the reason is because of the existential question religion poses, as I indicated above in my discussion of Beaman’s contribution. In a related manner, Moon argues that, instead of focusing on autonomy as the main category of freedom of religion (as Benjamin Berger does in his contribution), it is more satisfactory to point to “the idea that religion is a matter of identity” (p.217). Religion is more than a simple choice one makes: “It is a deeply rooted part of her identity or character that should be treated with equal respect. It represents a significant connection with others – with a community of believers – and structures the individual’s view of herself and the world.” Appealing to “identity” helps to explain why the Court considers it an infringement on a minority’s religious freedom when the state materially supports another religion. Up to a point, it does not materially affect one religion if another one is materially supported. [*266] However, the minority religion takes it as an infringement when one considers politics as the realm of “recognition,” meaning that choosing one over another, even when it makes little material difference for the one not chosen or supported, means the minority religion has a lesser status. Lack of recognition affects one’s dignity. Appealing to identity is helpful up to a point. But just as autonomy might belittle religion by reducing it to a choice, identity seems to conflate religion with one’s sense of honor. Of course, liberals since John Locke have tended to identify religious worship with one’s sense of honor, as Locke uses the example of a Chinese city that tolerated a tyrant for a long time but finally rebelled when he forced them to cut a strand of hair from their heads, which was a sign of their religion and honor (at least in Locke’s rendering).

Yet, despite his own constricted (and undefended) account of secularism, Moon’s own analysis still moves within the Christian horizon I outlined above. Identity, it turns out, seems to be a placeholder category to explain how it is (less why it is) people assign an unchosen and absolute worth to what they believe defines them. They cannot, and Moon indicates should not, be forced to change that. Moreover, what identifies them lies beyond the grasp of regular secular categories like culture, ethnicity, class, or biology. In its own inarticulate way, this is the Court’s way of expressing human freedom that, as Moon demonstrates, cannot be reduced simply to autonomy, where limitless choice entails meaningless choice. By seeing a limit on our choices and autonomy (imposed by something more divine than the state) and calling it “identity,” the Court recognizes what another contributor calls the “secular humility” of the Court. Even so, one wishes Moon would have joined forces with Schneiderman and Esau in elaborating the degree to which belonging to a religious group is a good worthy of protection because it constitutes the vehicle for joint action that produces social goods. When it comes to charitable giving, volunteering, and other forms of “civic embededness,” being religious, as opposed to having a conscience or being “spiritual,” makes a difference that has been demonstrated empirically. Religion does matter for reasons more than identity.

Lorraine Weinrib’s contribution attempts to show how the 1982 Charter of Rights and Freedoms revolutionized the Canadian political landscape and how it shaped the contours of the sharia law debate in Ontario. Weinrib argues the Charter rearranged political relations in Canada by establishing the relationship between state and individual “as primary and direct. To characterize this relationship as primary is to say that the state must consider each person as a full human being, abstracted from personal characteristics that historically justified both advantageous and disadvantageous treatment” (p.237). Weinrib describes not so much aristocratic privilege, or how minorities got the franchise, which occurred long before 1982. Instead, she describes how the Charter “enfranchises” minorities to draw upon governmental resources to equalize their economic condition and social status. Having already attained equality of opportunity, they use the Charter to obtain equality of result through various government sponsored programs of redistribution. While citizens of liberal democracy can reasonably differ over [*267] what forms and how much redistribution is just, it is a mistake to describe programs that seek to establish equality of result as true democracy or even “rights-based democracy.” Doing so exaggerates the achievement of the adoption of the Charter, as if 1982 were Canada’s version of 1689 or 1789, which it is not.

Moreover, she falsifies the liberal order by declaring the relationship between individual and state as primary. For instance, no social contract thinker would agree because the social contract is established among prospective (and current) citizens. Moreover, they claim their rights, not on the basis of their relationship with the state, but on the basis of natural right, which constitutes the standard by which to judge and restrain state action. Utilitarians would also disagree. Citizens recognize each other as free and equal before the state – treated romantically in this chapter as an abstraction – does. Moreover, the “state” is not a monolith; the term abstracts from the concrete reality that consists of a series of competing and overlapping jurisdictions, agendas, and political players. In all the examples Weinrib cites of citizens claiming their rights from the state, one can dig deeper to identify coalitions and alliances between interest groups (to which she refers as “public interest groups” (p.243)) and policy entrepeneurs in the judiciary, Department of Justice, and academia.

David Schneiderman’s contribution to this volume, where he defends associational life, is closer to the liberal view than is Weinrib. Her view is forecast by Alexis de Tocqueville who describes such a view as encroaching paternalism to which democratic societies are prone, especially when she treats the individual as an ahistorical monad shorn of characteristics. The individual has escaped class, gender, and other markers to become an empty vessel for state bureaucracies to pour their own meaning into. This is the chilling side of Weinrib’s insistence that the state “consider each person as a full human being,” which assumes that state bureaucracies, never mind friends, lovers, and spouses who have as much as a lifetime to get to know someone, have the capacity to consider one as such. Instead, the “state” defines the human being as it sees fit, notwithstanding the protestations of Esau, Borrows, Beaman, and other contributors to this volume.

Despite my reservations of Weinrib’s account of “rights-based” democracy, her analysis of the political history of the sharia debate shows how, as the controversy unfolded, the dignity of individuals came to be the center of attention. Participants in the debate increasingly focused on that instead of culture or religious accommodation. Weinrib credits the Charter and the state with this, though she would be on stronger terms if she recalled Chief Justice Beverley McLachlin’s argument that the Charter provides the governing language or “hypergoods” to which all political debates appeal (McLachlin, 31). The Charter may well be the product of the post-World War Two rights revolution Weinrib describes, but this revolution works within the spiritual horizon I outlined at the beginning of this essay.

By the time we reach the final essay, Benjamin Berger’s argument that religious rights in Canada get defined [*268] individualistically and on the basis of autonomy, the reader feels he or she has already trod upon a well-worn path. The other contributors, as well as numerous other commentators, have already pointed this out. The advantage of Berger’s argument is that he brings together these thoughts in a more systematic form. He also crystallizes the claims made by others that legal scholars and jurists need to recall that law has its own specific view of religion, which shapes the ways it understands religion and religious freedoms.

One wishes Berger would have taken up Chief Justice McLachlin’s claim (articulated about the time that he was her clerk at the Supreme Court of Canada) that it is the role of the Supreme Court to adjudicate the two “total claims” that both law and religion places upon citizen-believers (McLachlin, 14). In her response to the Chief Justice’s speech, Jean Bethke Elshtain disputes her characterization of the claim that both make as “total.” Religion does not make a total claim: “Render unto Caesar what is Caesar’s, unto God what is God’s”; politics, especially the Lockean liberalism that grounds both Canada and the United States, also makes only a partial claim (Elshtain, 36-37). In Berger’s reading that law reads religion as a liberal would read religion – emphasizing autonomy, individualism, and choice, it seems there is only one side whose “total” claim counts, that of the law. Or is this so? Perhaps those liberal abbreviations are in keeping with the limited claims the liberal order makes upon us.

In addition, Berger’s claim that law is a “culture,” like McLachlin’s statement that law is a system of “comprehensive meaning,” overstates the case. Iain Benson has recently pointed out that the laws, as the property of all, ought not to be characterized as forming a distinct “community” or “culture” because that undermines the capacity of law to adjudicate between different subcultures, communities, and belief systems. “Law” becomes one competitor among many, or rather it becomes primus inter pares because “law” ominously has a monopoly on the means of state coercion (Benson 2009, 309 n.30). If law is a “culture,” then law also becomes the prize of those who seek to define and control it. Shorn of a notion of natural rights, law simply becomes the tool of the strongest, and legal scholarship a game played by libidinous sophists.

Ironically, or not so ironically, liberalism in this reduction returns to its roots, in the tradition stemming from Hobbes to Rawls, by viewing the legal order as an essentially coercive, that is, violent order (Goerner and Thompson 1996, 649 n2). The distance between this kind of liberalism, and one more conscious of its revelatory horizon that should induce us to acknowledge the powerless, cannot be overstated.

LAW AND RELIGIOUS PLURALISM IN CANADA is a lively volume that raises a host of thorny dilemmas in thinking about the place of religious freedom in Canada. Readers can have a lot of fun reading the contributors’ criticisms of the cultural assumptions of religious freedom, and then read the authors’ own contributions as perpetuating those assumptions. But that is not such a bad thing, as long as one is clear about what those assumptions are. Unfortunately, the authors do not clarify the nature of those assumptions. This long [*269] review is an attempt to spell them out.

REFERENCES:
Benson, Iain. 2009. “The Case for Religious Inclusivism and the Judicial Recognition of Religious Associational Rights: A Response to Lenta.” 1 CONSTITUTIONAL COURT REVIEW 297-312.

Benson, Iain. 2005. “A Civil Argument Concerning Dignity, Beliefs, and Marriage: Being a Brief for an Appearance Before the Special Legislative Committee of the House of Commonson Bill C-38, The Civil Marriage Act.” June 14, 2005.(http://culturalrenewal.ca/downloads/sb_culturalrenewal/BriefBillC38.pdf)

Chaplin, Jonathan. 2000. “Beyond Liberal Restraint: Defending Religiously Based Arguments in Law and Public Policy.” 33 UNIVERSITY OF BRITISH COLUMBIA LAW REVIEW 617-676 (special edition).

Dante. 1949. THE DIVINE COMEDY 1: HELL. Trans, Dorothy L. Sayers. New York: Penguin.

Dodaro, Robert. 1994. “Eloquent Lies, Just Wards and the Politics of Persuasion: Reading Augustine’s City of God in a ‘Postmodern World’.” 25 AUGUSTINIAN STUDIES 77-138.

Elshtain, Jean Bethke. 2004. “A Response to Chief Justice McLachlin.” In RECOGNIZING RELIGION IN A SECULAR SOCIETY. Douglas Farrow (ed). Kingston-Montreal: McGill-Queens University Press. 36-37.

Farrow, Douglas. 2007. NATION OF BASTARDS. Toronto: BPS Books.

Farrow, Dougas. 2004. “Of Secularity and Civil Religion.” In RECOGNIZING RELIGION IN A SECULAR SOCIETY. Douglas Farrow (ed). Kingston-Montreal: McGill-Queens University Press. 140-182.

Goerner, Edward A. and Walter J. Thompson. 1996. “Politics and Coercion.” 24 POLITICAL THEORY 620-652.

Gregory, Eric. 2008. POLIITICS AND THE ORDER OF LOVE: AN AUGUSTINIAN ETHIC OF DEMOCRATIC CITIZENSHIP. Chicago: University of Chicago Press. Chapter 3.

Heyking, John von. 2009a. “Against the Edwardians: Why Religion Has a Place in Politics.” In CROSS-CURRENTS: CONTEMPORARY POLITICAL ISSUES (6th ed). Mark Charlton and Paul Barker (eds). Toronto: Nelson. 324-334.

Heyking, John von. 2009b. “The Charter of Rights and Civil Religion.” In FAITH IN DEMOCRACY: RELIGION AND POLITICS IN CANADA. John Young and Boris DeWiel (eds). Cambridge: Cambridge Scholars Press. 36-60.

Heyking, John von. 2009c. “Religious Freedoms Under Canada’s Ephemeral Monster.” In CIVIL RELIGION IN POLITICAL THOUGHT: ITS PERENNIAL QUESTIONS AND ENDURING RELEVANCE IN NORTH AMERICA, Ronald Weed and John von Heyking (eds). Washington, DC: Catholic University of America Press. Forthcoming. [*270]

Kay, Barbara. 2006. “The Problem is not Polygamy.” In ProudtobeCanadian.ca, January 16.(http://www.proudtobecanadian.ca/columnists/index/writergroup/printer-friendly/3545/)

McLachlin, Rt. Hon. Beverley. 2004. “Freedom of Religion and the Rule of Law: A Canadian Perspective.” In RECOGNIZING RELIGION IN A SECULAR SOCIETY, ed. Douglas Farrow. Kingston-Montreal: McGill-Queens University Press. 31.

Ray, Elise and John von Heyking. 2009, forthcoming. “Multiculturalism and Problems of Canadian Unity.” In Jurgen Gebhardt (ed). POLITICAL CULTURES AND THE CULTURE OF POLITICS: A TRANSATLANTIC PERSPECTIVE. Munich: Bavaria-America Academy.

Schuld, J. Joyce. 2004. FOUCAULT AND AUGUSTINE: RECONSIDERING POWER AND LOVE. Notre Dame: University of Notre Dame Press.

Shell, Susan. 2004. “The Liberal Case Against Gay Marriage.” In THE PUBLIC INTEREST. Spring. (reposted: http://findarticles.com/p/articles/mi_m0377/is_156/ai_n6143562 )

Sweet, Lois. 1997. GOD IN THE CLASSROOM: THE CONTROVERSIAL ISSUE OF RELIGION IN CANADA'S SCHOOLS. Toronto: McClelland & Stewart.

Taylor, Charles. 1979. HEGEL AND MODERN SOCIETY. Cambridge: Cambridge University Press.

Tully, James. 1995. STRANGE MULTIPLICITY: CONSTITUTIONALISM IN AN AGE OF DIVERSITY. Cambridge: Cambridge University Press.

Walsh, David. 2008. THE MODERN PHILOSOPHICAL REVOLUTION: THE LUMINOSITY OF EXISTENCE. Cambridge: Cambridge University Press.

Walsh, David. 1997. THE GROWTH OF THE LIBERAL SOUL. Columbia: University of Missouri Press.

Widdowson, Frances and Albert Howard. 2008. DISROBING THE ABORIGINAL INDUSTRY: THE DECEPTION BEHIND INDIGENEOUS CULTURAL PRESERVATION. Montreal-Kingston: McGill-Queens University Press.

Young, Frances. 2007. BROKENNESS AND BLESSING: TOWARDS A BIBLICAL SPIRITUALITY. Grand Rapids: Baker Academy. [*271]

CASE REFERENCES:
KEMPLING v. THE BRITISH COLUMBIA COLLEGE OF TEACHERS, BCSC 2004, 133. (http://www.courts.gov.bc.ca/jdb-txt/sc/04/01/2004bcsc0133.htm )

R. v. LABAYE, [2005] 3 S.C.R. 728, 2005 SCC 80. (http://scc.lexum.umontreal.ca/en/2005/2005scc80/2005scc80.html )

TRINITY WESTERN UNIVERSITY v. BRITISH COLUMBIA COLLEGE OF TEACHERS, [2001] S.C.J. No. 32.

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© Copyright 2009 by the author, John von Heyking.

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A REVOLUTION IN COMMERCE. THE PARISIAN MERCHANT COURT AND THE RISE OF COMMERCIAL SOCIETY IN EIGHTEENTH-CENTURY FRANCE (Français)

by Amalia D. Kessler. New Haven and London: Yale University Press, 2007. 391pp. Cloth. $55.00. ISBN: 9780300113976.

Passé en revue près Claire Lemercier, Institute for Early-Modern and Modern History, CNRS-ENS, Paris. Email: Claire.Lemercier [at] ens.fr.

(aussi disponible en anglais)

pp.251-254

Ce livre, fruit d'un travail de thèse très méticuleux et complètement remis en forme pour l'édition, traite d'un sujet au premier abord exotique : la juridiction consulaire de Paris au XVIIIe siècle et la manière dont elle s'est adaptée à “l'essor de la société commerçante”, mais aussi a contribué à l'orienter. Il devrait pourtant intéresser d'autres lecteurs que les seuls spécialistes d'histoire de France et/ou d'histoire économique, tant pour des raisons de fond que de méthode. Il montre l'intérêt d'une étude des archives de juridictions de premier degré, pour l'histoire de la justice mais aussi plus largement pour l'histoire politique. Récompensé par un prix de l'American Historical Association, l'ouvrage est en outre d'une grande clarté, malgré le c aractère souvent technique des thèmes abordés ; les éléments de contexte nécessaires pour comprendre chaque chapitre sont toujours rappelés. La lecture est rendue agréable par de nombreux récits d'affaires, mais aussi par des citations issues d'une grande variété de sources, jusqu'à des pièces de théâtre ; pour autant, l'auteur conserve toujours une grande rigueur scientifique, distinguant bien les différentes sortes de mythes et de réalités que ces sources permettent de reconstituer.

Les juridctions consulaires étaient des tribunaux spécialisés dans les conflits liés aux contrats commerciaux et aux titres négociables (notamment les lettres de change, alors en pleine expansion). Leurs juges étaient des marchands élus – même s'ils l'étaient, dans le Paris du XVIIIe siècle, par une petite élite, ne dépassant guère les “Six Corps”, les corporations dominantes de la ville. Leur rôle n'était pas purement judiciaire : leurs fonctions politiques leur permettaient de tenter d'influencer le gouvernement, en particulier à travers le Bureau du Commerce, dans l'intérêt des marchands, des corporations et/ou des juridictions consulaires. Il s'agit d'une des rares institutions à avoir traversé la révolution française, pratiquement inchangée dans son rôle comme tribunal, malgré son changement de nom, puisque les juridictions consulaires devinrent en 1790 les tribunaux de commerce. Ce changement était lié à un passage à une compétence fondée sur l'activité (de commerce) plutôt que le statut (de marchand) : cela ne fit guère évoluer, en pratique, le type d'affaires traitées, mais les enjeux culturels et politiques de cette nouvelle conception étaient bien réels.

Les tribunaux de commerce d'aujourd'hui ont toujours pour juges des dirigeants d'entreprises élus, ce qui constitue une exception française, pourtant presque jamais étudiée jusqu'ici par les chercheurs (qu'ils soient juristes, historiens ou sociologues) : Amalia Kessler a été la première à se plonger [*252] dans la masse d'archives de ce tribunal qui traitait plusieurs centaines d'affaires par semaine. Pourtant, elle ne s'en tient pas à une monographie d'institution. Étudiant une période de changements multiples qui mènent à la Révolution, elle montre comment les juges, mais aussi les arbitres qu'ils utilisaient pour instruire et essayer de concilier les affaires, voire les parties elles-mêmes, se représentaient ces changements, y réagissaient, voire les influençaient. Juges et arbitres tendaient, au début du siècle, à promouvoir une vertu marchande d'inspiration chrétienne, fondée sur des valeurs comme la bonne foi, la précision de la tenue des comptes et sur de relations commerciales personnalisées et de long terme. Par la suite, l'évolution de certaines pratiques commerciales, introduisant notamment une dose d'anonymat, ne permet plus de maintenir cette seule rhétorique et mène à l'application de nouvelles normes. La notion de “commerce” permet d'envisager une nouvelle fonction sociale, fondamentale pour le bien public – ou pour “la société”, dans le nouveau vocabulaire de l'époque –, qui ne se limite pas à ceux qui ont le statut de marchand ; le maintien d'une offre suffisante de crédit apparaît comme l'un de ses fondements. Cette nouvelle vision de l'activité a sa traduction dans les pratiques judiciaires : ainsi, la juridiction consulaire est amenée, non sans débats, à faire respecter en priorité les droits des porteurs de titres négociables, même lorsque c'est au détriment de précédents détenteurs pourtant de bone foi, ou encore à considérer certaines sociétés commerciales comme des personnes morales distinctes des relations interpersonnelles sous-jacentes entre associés. Ce récit du passage “de la vertu au commerce” (le titre originel de la thèse dont le livre est tiré) constitue une armature forte qui lie les chapitres du livre ; il ne s'agit pas pour autant d'une histoire simple de modernisation linéaire. Au contraire (et le choix du titre du livre n'est sans doute pas très heureux de ce point de vue), l'auteure souligne la lenteur des transitions, la persistance des pratiques plus anciennes de jugement (en particulier pour les affaires concernant des ventes de biens) et les tensions et contradictions ressenties par les acteurs. Sur ce dernier point, ses conclusions retrouvent et complètent celles de l'ouvrage magistral de Jean-Pierre Hirsch (1991), malheureusement sans les discuter de façon explicite.

Chacun des six chapitres est centré sur un thème particulier : les relations du tribunal avec les institutions locales et nationales, la procédure appliquée et le traitement de trois grands types d'affaires : celles qui concernent les titres négociables, les sociétés commerciales et les “contrats relationnels” (de long terme, concernant surtout les ventes de biens). Les chapitres 5 (sur la lettre de change) et 6 (sur les pétitions au Bureau du Commerce et la fin des corporations) sont particulièrement intéressants en eux-mêmes ; chacun peut se lire indépendamment, mais participe aussi au développement de la thèse générale du livre. En dehors des questions d'histoire économique stricto sensu, les apports de l'ouvrage me semblent particulièrement nets sur trois questions de fond.

Tout d'abord, et c'est l'un des deux buts explicites que se donne l'auteur, il remet en cause un récit trop simple, développé notamment dans la sous-discipline law and economics, des origines et du développement de la lex mercatoria. [*253] C'est d'autant plus important, tant pour les politiques économiques d'aujourd'hui que pour l'histoire du droit, que ce récit est largement utilisé par les institutions internationales pour promouvoir l'adoption d'institutions inspirées par la common law dans les pays du Tiers-monde. A. Kessler confirme certes quelques grands traits de ce récit – habituellement fondé sur des sources historiques très limitées, voire inexistantes. Certes, les marchands prisaient, dans l'ensemble, les procédures judiciaires simples, rapides, peu chères et essentiellement orales ; ils ont aussi eu un rôle actif dans l'évolution des normes applicables au commerce. Mais cette recherche souligne aussi des éléments qui contredisent l'image classique de la lex mercaroria : le rôle important des autorités publiques et des juristes dans l'évolution du droit commercial, le fait que la lex mercatoria n'a jamais existé comme corpus précis de normes connues de tous (nombre d'affaires sont résolues en fonction d'un raisonnement totalement spécifique au cas concerné, et on ne retrouve guère d'“usages” précis dans les motivations des jugements et arbitrages) et surtout le fait qu'on ne retrouve nulle part d'intérêt consensuel du commerce, mais bien plutôt des conflits et des débats sur ses valeurs.

Ensuite, dans sa démonstration générale concernant le passage du langage de la vertu à celui du commerce, l'auteure fait des propositions d'un intérêt plus général sur la naissance de nouveaux motifs rhétoriques (justifiant des revendications nouvelles ou le maintien de privilèges) dans le contexte de querelles bien précises (souvent des conflits de compétences entre tribunaux), sur le fait que cela fait naître des discours qui, au moins rétrospectivement, semblent s'auto-contredire, et donc sur les effets pervers que peuvent produire à terme de telles inventions rhétoriques. La recherche de ces dernières décennies a souligné que les corporations étaient bien vivantes au XVIIIe siècle, d'où de nouvelles interrogations sur les ressorts de leur abolition complète et définitive en 1791 (Kaplan 2001). A. Kessler montre que des conflits précis ont peu à peu conduit les juridictions consulaires à adopter une argumentation contradictoire, décrivant le commerce comme un (méta-)corps, tout en justifiant son utilité dans un langage fonctionnaliste ou utilitariste et en demandant que leur propre compétence s'étende au-delà des marchands. Ainsi, des dirigeants des corporations les plus importantes ont pu fournir des armes rhétoriques à leurs adversaires. Cette description fine des représentations de la société et du système politique, n'éludant pas leurs contradictions, fait parfois penser aux propositions de Pierre Rosanvallon (2007) sur la France d'après la Révolution.

Enfin, un apport plus évident mais non moins important du livre réside tout simplement dans la description précise qu'il donne du fonctionnement quotidien d'un tribunal civil de premier degré : on dispose de très peu d'études de ce type, en particulier pour la France (Margairaz 2007). En outre, l'auteure, professeure de droit, explicite de façon particulièrement convaincante les enjeux culturels et politiques de nombreux détails de la procédure. La reconstitution de l'activité du tribunal n'avait rien d'évident, les minutes étant à la fois massives en nombre, elliptiques et peu lisibles. A. Kessler a choisi de se concentrer sur 300 rapports d'arbitres (tout en lisant les [*254] 3 000 rapports concernés) et de présenter en détail une grosse douzaine d'affaires : un parti-pris raisonnable et fécond, même si quelques comptages simples de plus auraient pu ajouter à sa démonstration. Ces rapports d'arbitres, même si on ne peut pas les considérer comme statistiquement représentatifs, constituent une source unique sur certaines pratiques commerciales et sur la manière dont elles étaient considérées. Ils montrent aussi la réalité d'une procédure sommaire, par exemple la façon dont se déroulent les tentatives de conciliation, le type de preuves admises ou le poids d'arguments inattendus, avec ce que l'auteure appelle “raisonnement juridique sentimental” (sentimental legal reasoning), c'est-à-dire la présentation de l'affaire sous forme de quasi-fable mettant en scène le caractère des parties et menant directement à une conclusion morale autant que juridique. Sur de telles procédures sommaires, on ne dispose encore que d'études pionnières (Cerutti 2003), or la recherche historique pourrait ici beaucoup apporter aux débats contemporains sur la justice de proximité ou la médiation.

Malheureusement, l'auteure n'est guère explicite sur ses références méthodologiques et théoriques ; pourtant, son livre apporte une parfaite illustration des apports possibles du courant Law & Society, encore trop peu connu dans le monde francophone, pour les sciences sociales, et notamment pour l'histoire du droit et de la justice, voire plus largement l'histoire politique. A. Kessler pointe fort justement, dans son introduction et sa conclusion, la difficulté centrale que constitue pour les historiens, après le linguistic turn, la conciliation entre histoire des discours et histoire des pratiques. Elle affirme qu'une étude des institutions, et en particulier des tribunaux, constitue un des meilleurs point d'entrée pour lier ces deux dimensions de façon non mécanique, car “les institutions et les pratiques juridiques ne font pas que mettre en oeuvre des discours : elles sont aussi un agent important des évolutions discursives, ou conceptuelles” (p. 288). Son livre montre par l'exemple l'intérêt d'une telle démarche.

REFERENCES:
Cerutti, Simona. 2003. GIUSTIZIA SOMMARIA. PRATICHE E IDEALI DI GIUSTIZIA IN UNA SOCIETÀ DI ANCIEN RÉGIME (TORINO, XVIII SECOLO). Milano: Gian Giacomo Feltrinelli.

Hirsch, Jean-Pierre. 1991. LES DEUX RÊVES DU COMMERCE. ENTREPRISE ET INSTITUTION DANS LA RÉGION LILLOISE (1780-1860). Paris: éditions de l’EHESS.

Kaplan, Steven L. 2001. LA FIN DES CORPORATIONS. Paris: Fayard.
Margairaz, Dominique. 2007. “Postface” XXII-2. HISTOIRE & MESURE 167-175. Available at http://histoiremesure.revues.org/index2543.html

Rosanvallon, Pierre. 2007. THE DEMANDS OF LIBERTY: CIVIL SOCIETY IN FRANCE SINCE THE REVOLUTION. Cambridge: Harvard University Press.

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© Copyright 2009 par l'auteur, Claire Lemercier.

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A REVOLUTION IN COMMERCE. THE PARISIAN MERCHANT COURT AND THE RISE OF COMMERCIAL SOCIETY IN EIGHTEENTH-CENTURY FRANCE (English)

by Amalia D. Kessler. New Haven and London: Yale University Press, 2007. 391pp. Cloth. $55.00. ISBN: 9780300113976.

Reviewed by Claire Lemercier, Institute for Early-Modern and Modern History, CNRS-ENS, Paris. Email: Claire.Lemercier [at] ens.fr.

(also available en français)

pp.247-250

This thoroughly researched book deals with a topic that might seem exotic to many: the Parisian merchant court in the 18th century and the way it not only adapted to, but also contributed to shape “the rise of commercial society.” It should however attract readers well beyond specialists of France and/or economic history, for methodological as well as substantive reasons. It makes a convincing case for the use of archival material created by the daily workings of a (first degree) court. In addition, it addresses several topics of special interest for political science and/or law and court studies. The book has deservedly won a prize of the American Historical Association: it is very clearly written; the technicalities and specific context of each chapter are nicely introduced for the non-specialist reader. The interlocking of various sources, including the narration of cases and even excerpts from dramas, makes the book all the more compelling; it is always done with the necessary scientific precision, distinguishing between various sorts of myths and realities.

Merchant courts were special courts adjudicating disputes related to commercial contracts and negotiable instruments. Their judges were merchants elected by fellow merchants – in fact, in 18th-century Paris, by leaders of the six to eight most prestigious merchant guilds. In this period, they were not confined to a judicial role, but also had political functions that allowed them, and especially the Parisian court, to try to influence the government in the interest of merchants, guilds and/or merchant courts. They were one of the few institutions that survived the French revolution, more or less unchanged in their judicial role, except for their name: in 1790, they became “courts of commerce,” which pointed to a change in their jurisdiction (now based on commercial activity, not on merchant status) that had important cultural and political, if not really practical, consequences.

Such courts of lay judges still exist today: this interesting French peculiarity had however attracted little or no research before Amalia Kessler, who was the first to dive into the massive archives of a court that dealt with hundreds of cases each week. What she gives is however much more than an institutional monograph. Studying a period of economic, cultural and political change that eventually led to a revolution, she shows how merchant judges, as well as the arbiters whom they used to investigate and try to conciliate cases and the parties themselves, understood these changes, reacted to them and even influenced them. Whereas they insisted, at the beginning [*248] of the century, on promoting a Christian merchant virtue rooted in good faith, precise accounts and personal long-term relationships, the growing anonymity of some merchant practices led judges and arbiters to invent a new rhetoric, and accordingly to enforce different norms. “Commerce” became the description of a social function not necessarily limited to those who had the status of merchants, based on the sufficient provision of credit and oriented towards the good of the public – or, in the new 18th-century terms, of “society” as a whole. More concretely, it was now deemed necessary to enforce the rights of holders of negotiable instruments, even when it harmed previous holders of good faith, and to consider some firms as artifical persons with changing partners, distinct from underlying familial or other personal relationships. This general thesis that strongly links the chapters of the book however does not tell a simple tale of modernization. On the contrary (and perhaps contrary to the connotations of her title), Kessler points to slow transitions, remainders of previous practices (e.g. in disputes about goods) and tensions and contradictions felt by the actors. About these contradictions, the book nicely complements the master work by Jean-Pierre Hirsch (1991) – unfortunately, without explicitly discussing it.

Each of the six chapters is devoted to a particular topic: the relationships of the court with other municipal and national institutions, its procedure, and the way it decided on disputes involving negotiable instruments, partnerships and corporations, and “relational contracts.” Each one, especially the fifth (negotiable instruments) and sixth (national institutions and the demise of corporatism), is in itself interesting, while participating in the progressive unfolding of Kessler’s broad thesis. In addition to what it adds to economic history, the book is of special value on three substantial topics.

One of Kessler’s main stated aims is to expose the flaws of traditional, law and economics narratives of lex mercatoria. Generally based on little or no first-hand historical evidence, this standard account is frequently endorsed by scholars and even international institutions promoting the adoption of common-law inspired institutions in contemporary Third World or post-communist countries. Therefore, questioning it has important implications in real world policy as well as for our views on law-making and “legal traditions.” While confirming some of its aspects, namely the fact that merchants generally looked for simple, rapid, cheap and oral procedures and created part of the substantive norms applied by commercial courts, Kessler’s research also emphasizes other points that contradict the standard narrative: the role of public authorities and civil law jurists in the evolution of commercial law, the fact that it never constituted a unitary corpus of rules known to all merchants (many decisions being completely case-specific and precise customs rarely being used as default rules) and, even more importantly, the fact that there was no such thing as a unitary interest of commerce promoted by all and leading to growth. Conflicts and discussions on values are at the core of each chapter.

The second substantive interest has to do with the general thesis of the book. Kessler is particularly adept at showing how new rhetorical devices (ways to [*249] justify a demand or an existing privilege) were created in the context of particular disputes – especially jurisdictional conflicts, – how this regularly led to (at least in retrospect) contradictory claims, and how some of these rhetorical strategies therefore backfired. As it is now recognized that guilds were still an important social institution in the 18th century, their complete abolition in 1791 remains a puzzle to many historians, despite important recent research (Kaplan 2001). Kessler’s discussion of the way merchant courts were led to describe “commerce” as a (meta) corps (corporate body), while at the same time claiming jurisdiction on non-merchants practicing commerce and proving the importance of their activity in functionalist/utilitarist terms, shows how discourses promoted by the very leaders of the guilds could be used to ultimately destroy the guild system. This account of conflicting and sometimes self-contradictory representations of society interestingly complements discussions by Pierre Rosanvallon on tensions in French (but not only French) conceptions of representation after the Revolution (Rosanvallon 2007).

A more obvious, but not less useful contribution of the book lies in its careful reconstitution of the day-to-day workings of the court, and especially in its reflections about the social and cultural significance of various aspects of procedure. Studies of first-degree civil courts are not a common genre, at least in French research (Margairaz 2007). It is admittedly difficult to deal with massive and often illegible archives; the choice made by Kessler, who concentrated on 300 arbiters’ reports (but read 2700 more) and precisely discusses a dozen cases, seems quite reasonable, although a few additional simple counts in reports and judgments could have been useful. For all these difficulties, such a source still provides invaluable glimpses of actual commercial practices and the way they were understood and judged: although admittedly not representative, such clues allow us to construct hypotheses on behaviors and representations that left no other traces. More importantly for court research, the sources enabled Kessler to discuss several aspects of summary proceedings, e.g. arbitration/conciliation and types of proofs, and peculiar ways of adjudication, e.g. “sentimental legal reasoning” (based on a narrative centered on the moral qualities of parties). She here adds to a quite new field of historical research (Cerutti 2003) and provides interesting comparisons for contemporary debates about alternative dispute resolution.

Kessler never gives theoretical references in the field of Law & Society; her book however is an excellent example of what this approach has to offer to social sciences, and especially to history. Beyond history of law and courts per se, Kessler makes a convincing point for the study of institutions, especially courts, as a way to reconcile research on discourse and on practices (difficult questions for historians after the “linguistic turn”). As she puts it, “Legal institutions and practices do more, however, than simply implement discourse; they also serve as an important agent of discursive, or conceptual, change” (p.288). Although not rich in theoretical or methodological developments, Kessler’s book gives interesting tools for those who want to understand this sort of change. [*250]

REFERENCES:
Cerutti, Simona. 2003. GIUSTIZIA SOMMARIA. PRATICHE E IDEALI DI GIUSTIZIA IN UNA SOCIETÀ DI ANCIEN RÉGIME (TORINO, XVIII SECOLO). Milano: Gian Giacomo Feltrinelli.

Hirsch, Jean-Pierre. 1991. LES DEUX RÊVES DU COMMERCE. ENTREPRISE ET INSTITUTION DANS LA RÉGION LILLOISE (1780-1860). Paris: éditions de l’EHESS.

Kaplan, Steven L. 2001. LA FIN DES CORPORATIONS. Paris: Fayard.
Margairaz, Dominique. 2007. “Postface” XXII-2. HISTOIRE & MESURE 167-175. Available at http://histoiremesure.revues.org/index2543.html

Rosanvallon, Pierre. 2007. THE DEMANDS OF LIBERTY: CIVIL SOCIETY IN FRANCE SINCE THE REVOLUTION. Cambridge: Harvard University Press.

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© Copyright 2009 by the author, Claire Lemercier.

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WRONGFUL CONVICTION: INTERNATIONAL PERSPECTIVES ON MISCARRIAGES OF JUSTICE

by C. Ronald Huff and Martin Killias (eds). Philadelphia: Temple University Press, 2008. 312pp. Cloth $59.50. ISBN: 9781592136452.

Reviewed by Matthew Light, Centre of Criminology, University of Toronto. Email: matthew.light [at] utoronto.ca.

pp.243-246

How successful are the world’s legal systems both in preventing the conviction of factually innocent persons, and in overturning such convictions after they have been pronounced? This is the question that animates this major study. Drawing together research by authors from many countries featuring contrasting legal traditions, editors C. Ronald Huff and Martin Killias have produced perhaps the first attempt to evaluate the scope and characteristics of wrongful conviction as a worldwide phenomenon. This volume thus addresses a crucially important problem for all scholars of comparative criminal justice.

WRONGFUL CONVICTION is organized both thematically and geographically. The first two substantive chapters deal with the highly charged issues of wrongful convictions in cases of alleged child sexual abuse (Randall Grometstein) and the role of forensic science in judicial error (Beatrice Schiffer and Christophe Champol). Grometstein explores the phenomenon of “moral panic” in the context of a rash of accusations of child sexual abuse, often involving allegations of bizarre satanic rituals, which were made against the proprietors and workers of day care centres around the world in the 1980s and 1990s. (It would be interesting to know why these accusations became so widespread at that particular historical moment, and in such a wide variety of countries.) Schiffer and Champol draw attention to the potential for DNA evidence to increase rather than reduce the risk of false convictions when the processing of such evidence is dominated by the police and prosecution.

Subsequent chapters explore the distinctive experiences of particular national legal systems. A survey of wrongful convictions in the United States (C. Ronald Huff) is accompanied by a chilling exploration of executions of the innocent in that country (William S. Lofquist and Talia R. Harmon) that makes out a compelling case that such executions “occur on a regular basis,” and result from “systemic race, class, and resource biases, and through a commitment to the death penalty . . . that overwhelms efforts to improve the machinery of death (p.112). Readers from the United States may be particularly interested in the experience of two sister Common Law jurisdictions, Canada and the United Kingdom, which have recently experimented with new institutions to prevent and correct wrongful convictions. Kathryn M. Campbell, while acknowledging progress in this area since Canada created the Criminal Conviction Review Group, argues that the new procedures [*244] still give too much power to the Minister of Justice (p.123). Clive Walker and Carole McCartney chart the successes and setbacks of the Criminal Cases Review Commission in Britain. The Civil Law countries of Western Europe are also richly represented in chapters dealing with Switzerland (Martin Killias), the Netherlands (Chrisje Brants), Germany (Isael Kessler), and France (Nathalie Dongois). There are also chapters on a post-Communist country, Poland (Emil W. Plywaczewski, Adam Górski, and Andrzej Sakowicz), and a Middle Eastern state with a hybrid legal tradition, Israel (Arye Rattner). The volume concludes with a useful comparative chapter by the editors, setting forth suggestions for legal reforms that could reduce the incidence of wrongful convictions.

The studies in this volume bring home to the reader the sheer variety of phenomena that can be grouped under the general heading of “wrongful conviction.” Some of these cases are by their nature especially spectacular, as in the example of the overturned convictions of day care centre proprietors and staff in France and other countries. Likewise, the US decision to retain the death penalty has meant that the risk of false convictions also carries the risk of execution of the innocent, and the current US propensity for extremely long sentences also increases the likelihood that exoneration can also lead to the release of a person who is currently incarcerated. Israel and the UK both face the risk of wrongful convictions of suspects in terrorism cases, and in both countries this risk is also ethnically inflected, as attested by case studies of Arab defendants in Israel and Irish defendants in the UK. Contemporary Poland has wrestled with the “rehabilitation” (nullification of convictions) of persons convicted of political crimes during the Communist period. The understandable goal of making a legal break with a repudiated authoritarian regime has proved surprisingly difficult to implement in practice, since “rehabilitation” involves careful sifting of evidence about the exact nature of the crimes (i.e., purely political, or also partially criminal) for which Communist-era defendants were convicted. On the other hand, it appears that in certain contexts it is precisely the most trivial criminal accusations that can present the highest risk of a miscarriage of justice. Thus, Killias argues that in Switzerland the problem of wrongful conviction for minor offenses may actually be far more widespread than wrongful conviction for serious offenses. This is because of a less rigorous adjudication procedure for defendants accused of minor offenses, who are subject to so-called “penal orders,” i.e., summary convictions by a magistrate (pp.150-51).

A key question raised by this book is the extent to which different legal systems are more or less effective in preventing (and where necessary, correcting) convictions of the factually innocent. This is a surpassingly difficult project, and the editors and authors of WRONGFUL CONVICTION are to be commended for taking it on. The difficulty they face begins with the fact that they are attempting to measure a phenomenon which, by definition, is not officially acknowledged. Not surprisingly, some authors are quite reticent about making precise quantitative estimates of the incidence of [*245] wrongful convictions, although Huff does suggest (citing his own previous research) that in the United States around 0.5 percent of all convictions may be “miscarriages of justice.”

Despite the difficulty of such quantitative estimates, one can still ask whether particular national legal particularities, or broad systemic contrasts between the Common Law adversarial tradition and the Civil Law inquisitorial one will tend to lead to greater or lesser success in avoiding wrongful convictions. Here the authors come to different conclusions. In the only chapter that explicitly compares a Common Law system (England and Wales) with a Civil Law one (Germany), Isabel Kessler argues that the adversarial tradition, by separating police and prosecution functions and creating strong incentives for prosecutors to pursue even weak cases, is more likely than the inquisitorial tradition to lead to convictions of the innocent. In his chapter, Marvin Zalman also draws attention to what he views as the inherent weakness of the adversary system, in particular as practiced in the United States: the lack of regulation of the prosecution as a result of separation-of-powers doctrine, and the emphasis on adherence to procedural rights (rather than a search for substantive truth) as the ultimate means of preventing false convictions.

In contrast, Chrisje Brants is somewhat skeptical as to the intrinsic superiority of inquisitorial criminal procedure, pointing to important limitations on the powers of defence counsel and (at least in the Netherlands), the tendency for trial courts to accept the prosecution’s claims in its “dossier” (summary of evidence) rather uncritically. While a canon of inquisitorial procedure requires legal decisions to be justified by juridical reasons and evaluation of the evidence, Brants finds that Dutch courts are often rather slapdash in complying with this requirement (p.174). Thus, the verdict is still out (so to speak) on the question of whether either legal systems or distinct national legal systems are superior to others in preventing miscarriages of justice – and even as to the methodology by which such a comparison could be approached.

If the effectiveness of particular national legal systems in preventing wrongful conviction can be difficult to estimate, the case studies published in WRONGFUL CONVICTION do lead to certain conclusions about the global phenomenon of miscarriages of justice, and how they might be addressed. For example, based on these national case studies, the problem of “confirmation bias” within the legal system – the unwillingness of legal officials to acknowledge mistakes – appears to be almost universal, and a number of the authors draw the conclusion that the institutions that are responsible for evaluating claims concerning wrongful convictions need to be insulated from the rest of the legal system. A further common theme that emerges from these case studies is the issue of resource-management: as is implied in Killias’ study of Switzerland, the more that access to due process has to be rationed for cost reasons, the greater is the risk of wrongful convictions, a point which suggests that simply prosecuting fewer people is likely to lead, all other things being equal, to fewer miscarriages of justice. (One might infer that the highly punitive policies of the United States, [*246] which funnel a myriad of defendants through the criminal justice system by means of plea bargaining, would tend to be particularly susceptible to convictions of the innocent.) Finally, legal actors under a high degree of pressure to produce convictions, especially in particular heinous or spectacular crimes (such as child sexual abuse or terrorism), may be tempted to cut corners in their pursuit of marginal cases. There is no obvious solution to this problem, although a point that emerges from this volume that soberly designed institutions may at least reduce the likelihood of wrongful convictions in moments of hysteria or moral panic.

WRONGFUL CONVICTION should be of interest to scholars of comparative criminal procedure and judicial politics, as well as to those with research interests in the governance of science and technology and the philosophy of law. It is also suitable for use in advanced undergraduate and graduate courses. The national case studies are carefully written to outline the major features of each country’s criminal justice system. Individual chapters or the entire book could be assigned in courses on comparative law and criminal justice.

This volume makes an important contribution to the growing field of comparative criminal justice, and it can only be hoped that these and other authors will follow this research with further efforts to integrate knowledge of the phenomenon of wrongful convictions around the world.

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© Copyright 2009 by the author, Matthew Light.

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THE PERILS OF FEDERALISM: RACE, POVERTY, AND THE POLITICS OF CRIME CONTROL

by Lisa Miller. New York: Oxford University Press, 2008. 264pp. Hardback. $39.95/£21.99. ISBN: 9780195331684.

Reviewed by Bill Lyons, Department of Political Science at The University of Akron. Email: wtlyons [at] uakron.edu.

pp.238-242

In THE PERILS OF FEDERALISM Lisa Miller has produced a powerfully thoughtful empirical analysis of the various ways that American federalism amplifies some conflicts and mutes others in our ongoing debates about how best to reduce the harms associated with crime and punishment. Miller analyzes news accounts, lobbying disclosure forms, transcripts of key informant interviews, and hundreds of legislative committee meetings at local, state and Congressional levels and concludes that the ways that crime control debates migrate, from local city councils to state legislatures to the US Congress, have “significant implications for how we conceptualize crime and its consequences” (p.172). The broad-based, quality-of-life concerns articulated by the citizen groups who dominate the more democratically vibrant local venues are gradually reframed as simply calls for more police and more extreme forms of punishment as representatives “truncate a broad range of concerns into narrow, readily accessible frames that are continually reproduced by the policy process at the state and national levels” (p.172).

The pragmatic and holistic perspectives that citizens bring to these debates at city council meetings is squeezed out by a federalist system more attentive to the bureaucratic interests of police and prosecutors than to problem solving in those communities most victimized by crime. Federalism provides multiple pathways of access, but the two pathways with resources (state and national) construct the concerns of a narrow, professionalized, and affluent elite as salient, while marginalizing the publics who are concerned about a larger menu of inter-related quality-of-life issues by framing their concerns and their communities as outside the mainstream policy process. As Miller puts it, “This book argues that U.S. federalism shapes the representation of group interests and the policy environments at each level of government in ways that severely underrepresent the interests of citizens facing serious crime victimization – most frequently the poor and racial minorities” (p.5).

The structures of American federalism create an interest group politics at local, state and national levels that favors more punitive and volitional approaches to crime than is supported by the concerns and perspectives of those living in closest proximity to criminal victimization. And as crime control debates move from one venue to another, Miller’s data demonstrate that narrow parochialism, insulating lawmakers from effective citizen influence, is not unique to politics at the local level. In fact, the “federalization of [*239] crime control – that is the presence of crime control as an active agenda item at all three levels of government – generates a systematic bias in the interest group environment across levels of government. Highly active single-issue groups and crime control bureaucracies are mobilized into the political process at the state and national levels while broad citizen groups . . . are mobilized out of it” (p.7, italics in original).

There are at least three compelling reasons to add this book to your summer reading list. First, while advancing a complex, significant, and timely argument, the book remains highly readable from start to finish. This will make the book particularly valuable for use in the classroom at the undergraduate or graduate level, in courses examining interest group dynamics, the politics of crime and punishment, law and society, state and local politics, race and crime, as well as any course focusing on the impact of institutional structure on citizen agency in the policy making process. Second, the detailed, rigorous, and innovative empirical analysis provided in this book contributes to filling a major gap in several overlapping literatures by focusing on the process through which local, state, and national leaders grapple with crime and punishment questions and the relationship between these three venues, interest group activity, citizen mobilization, racial conflict, and our penchant for excessively punitive approaches to disorder. Third, this book advances our understanding of the political struggles driving our incarceration explosion, growing prison-industrial complex, the blackening of our carceral system, and our ongoing inability to address the serious harms that mark everyday life in our inner city neighborhoods.

The analysis in THE PERILS OF FEDERALISM is built on three very detailed case studies of legislative debates about crime and punishment: city council hearings in Philadelphia and Pittsburgh, state legislative hearings in Pennsylvania, and hearings in the US Congress. The data provided are rich and multilayered; the argument presented is concise, subtle, and persuasive. In chapters two and three Miller begins her work with an analysis of interest group activity in Congress to demonstrate that national attention to crime is not new, but has grown gradually as criminal justice agencies like the Department of Justice and a small number of single-issue groups focusing our attention on crimes threatening whites have emerged as central players in the politics of law and order (p.49). Miller argues that this “gradual and sometimes sudden process” has constructed paths of access that have “decoupled the crime issue from broader race and class conflicts” (p.30) in response to the framings preferred by elite repeat players.

The historical data in chapter two is critically important, because as Vanessa Barker, Richard Fording, and others have shown, these inherited institutional pathways constrain our political options today, often in ways that amplify racial conflict, distracting us from the powerfully biased impacts of federalism that Miller is highlighting. Instead, at the national level the structure of interest group politics encourages a crime control debate that “draw[s] public conversation about crime away from actual measures of harm and toward [*240] self-referential outcome measures that may have little bearing on the experiences of people most likely to be victimized by crime” (p.75), at least partially accounting for our over-emphasis on retributive forms of punishment.

The absence of broader groups or their proxies and the dominance of criminal justice agencies often blends well with the interests of single-issue groups interested in enhancing criminal sanctions or increasing police activity. As a result, the policy process emphasizes the internal goals of criminal justice agencies, which serve as a proxy for the goals of actually significantly reducing crime victimization . . . [and limiting] opportunities for connecting crime to larger structural conditions and with punishment the default orientation of national crime policy (pp.73, 83).

In chapter four Miller finds that, at the state level, there is also a “deep convergence of interests between criminal justice agencies – particularly prosecutors – and single-issue citizen groups” (p.27), because the citizen groups bringing legislators a “set of problems with depth and breadth” (p.108) are “rarely heard from” (p.113). As Miller puts it, the “result is that state legislative policy debates on crime are frequently characterized by networks of groups whose policy preferences are either not particularly opposed to one another or fall into predictable and manageable debates” (p.118). Rather than responsive to the quality-of-life concerns articulated by the citizens living in closest proximity to crime, the policy process constructed here, like the process in Congress, is more interested in mediating the distributive conflicts among repeat players, primarily state criminal justice bureaucrats and narrow single-issue interest groups positioning for public funding.

Chapters five and six examine Philadelphia and Pittsburgh to show that citizen groups in these two cities are highly mobilized and near omnipresent in local policy debates. “This assessment of citizen groups represents a much wider range of group activity than is typically assessed by interest group scholars” (p.144). While Miller’s finding that local citizens are highly mobilized is important, she also builds on these findings to demonstrate that the pragmatic policy perspectives they bring to local forums get reframed off the agenda within the bureaucratic discourses dominating state and national policy debates.

Miller concludes that her data document a “representational bias of federalism” (p.27) that helps us understand how “the federalization of crime generates bloated criminal justice agency budgets and crime frames fixated on punishing offenders and depoliticizes citizen engagement” (p.179), while leaving bureaucratic agencies “largely insulated from public pressure for actually resolving crime problems” (p.180), and creating powerful obstacles reducing the ability of “local groups to reframe the crime issue beyond the reactive, punishment-oriented frame that characterizes most policy making” (p.183).

The data presented in this book make it clear that citizens have more control over local government leaders, perhaps because local governments are the most impoverished of the three levels, and as Katznelson (1976: 220) put it, this leaves local leaders only able to try to “manage [*241] the consequences of their inability to solve urban problems.” According to Miller’s data, as government becomes more able to act, citizen voices are first muted in local political spectacle and then systematically ignored in state and national policy making and resource allocation. Those living in communities of concentrated disadvantage then, can add this additional disadvantage (though this will not likely come as news to these residents): the system is structured to favor making salient those conflicts found at the intersection of narrow and largely white interest groups with the resources to hawk designer messages and the bureaucratic imperatives of criminal justice agencies. This study carefully and persuasively unpacks and reveals how the structure of federalism creates pathways of access that enable precisely this type of skewed interest group dynamic, a dynamic that is at least partly responsible for decades of ineffective, and extremely punitive, crime policies.

Schattschneider noted that “conflicts become political only when an attempt is made to involve the wider public” (1975: 39). While Miller’s analysis focuses almost entirely on the instrumental aspects of the struggle over the scope of the conflict here, leaving analysis of the constitutive aspects for a future project, her analysis of the instrumental dynamics of crime control debates is both innovative and long overdue. In Schattschneider’s classic formulation, conflicts become political because interested parties work hard to reframe them in order to redivide publics and predetermine the relevant decision making venue, usually with the weaker party seeking to expand the scope. But in this case, Miller finds that, as the scope of crime control conflicts move into state and then national government venues, the mobilized audience shrinks rather than expands as the image used to frame the conflict shifts from broad, diffuse and structural to narrow, bureaucratic and volitional. Her findings are powerfully important, and at the same time invite more attention to the leadership, elite agency, and constitutive aspects of power highlighted by Schattschneider when he points out that it is more likely a leadership failure than a failure of citizens that is on display when we observe limitations in the form or extent of citizen participation in politics.

There is a better explanation. Abstention reflects the suppression of the options and alternatives that reflect the needs of the nonparticipants. It is not necessarily true that the people with the greatest needs participate in politics most actively. Whoever decides what the game is about decides also who can get into the game. (Schattschneider 1975: 102)

THE PERILS OF FEDERALISM is a major contribution to our analysis of the interest group politics that surround crime and punishment policy making, because the author highlights this question and has carefully gathered multiple sources of data to support her argument. Citizens do mobilize on these issues (though not uniformly across levels of government). The structure of federalism impacts the nature of citizen mobilization (skewing which substantive issues are more likely to be made salient and with what particular issue frames). And these findings help us better understand how the zero tolerance political-culture that reflects and reinforces our retributive politics of law [*242] and order is reproduced in everyday political decision making.

Miller’s focus on agenda-setting and the relationship between structure and agency make this book an enormous breakthrough. At the same time, the argument here highlights the importance of future work to examine both the role of elites in determining whose game we will play and to dig as deeply into the struggle over image and language, nondecisions and quiescence (Gaventa 1980), as this book so brilliantly digs into the struggle across legislative venues, as a key factor in explaining how holistic and pragmatic citizen demands are routinely narrowed to extreme punishment, and how this process is routinely insulated from critical public scrutiny. THE PERILS OF FEDERALISM is a must-read because it advances our thinking to the point were we can begin to ask entire sets of questions we need to debate if we are to address productively the menu of overlapping conflicts put on the table when citizens living in those communities most victimized by crime articulate their concerns.

REFERENCES:
Barker, Vanessa. 2006. “The Politics of Punishing: How Institutionalized Power, Activist Governance and Citizen Participation Matters to the Rise and Fall of Incarceration.” 8 PUNISHMENT & SOCIETY 5-32.

Fording, Richard. 2001. “The Political Response to Black Insurgency: A Critical Test of Competing Theories of the State.” 95 AMERICAN POLITICAL SCIENCE REVIEW 115-130.

Gaventa, John. 1980. POWER AND POWERLESSNESS: QUIESCENCE AND REBELLION IN AN APPALACHIAN VALLEY. Champaign, IL: University of Illinois Press.

Katznelson, Ira. 1976. “The Crisis of the Capitalist City: Urban Politics and Social Control. In Willis Hawley and Michael Lipsky (eds). THEORETICAL PERSPECTIVES ON URBAN POLITICS. Brunswick, NJ: Prentice Hall.

Schattschneider, E.E. 1975. THE SEMISOVEREIGN PEOPLE: A REALIST’S VIEW OF DEMOCRACY IN AMERICA. New York: Harcourt Brace.

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© Copyright 2009 by the author, William T. Lyons, Jr.

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PRIVATE PROPERTY, COMMUNITY DEVELOPMENT, AND EMINENT DOMAIN

by Robin Paul Malloy (ed). Burlington, VT: Ashgate, 2008. 230pp. Hardback. $99.95/£55.00. ISBN: 9780754672111.

Reviewed by Andrew P. Morriss, College of Law, University of Illinois, Urbana-Champaign. Email: morriss [at] illinois.edu.

pp.234-237

This volume provides eight chapters addressing some of the important issues raised by the controversy over the Supreme Court’s decision in KELO v. CITY OF NEW LONDON. As is inevitable in such a collection, the chapters are uneven and different audiences will find different chapters more or less useful. In addition to the substantive chapters, the book includes the KELO opinions, a table of cases and a consolidated bibliography. The inclusion of the KELO opinions would be useful mostly if the book were used as the basis for a seminar on eminent domain. However, the book’s high price and relatively short length (just 164 pages are devoted to the substantive chapters) make it less likely to be adopted for such purposes than if it were priced less expensively. This is unfortunate, as the book could readily serve as the core readings for such a course.

The first chapter, by Syracuse University law professor Robin Paul Malloy and University of Georgia law professor James Charles Smith, is a brief overview of the issues raised by the use of eminent domain to promote development and how different legal systems attempt to cope with them. The framework developed is then applied to the majority and dissenting opinions in KELO. Like most of the chapters in the book, this one has a strong point of view on the merits in KELO, arguing that the widespread criticism of the majority opinion was unwarranted. Malloy and Smith are important figures in property law, and learning their views on the case is useful. Unfortunately, their point of view is shared by almost all of the book’s authors, providing a less than complete picture of the legal academy’s assessment of KELO and its context. In addition, their account of the overall context of eminent domain’s use for economic development is one that is hotly contested in the academy, and including more material by critics of the process would have made the book a more useful teaching tool. The chapter is also too short, leaving the reader with a desire to hear more about what Malloy and Smith think about the issues they raise.

In the second chapter, University of Florida law professor Michael Allan Wolf compares the media’s responses to KELO and to the two other key post-World War II eminent domain cases, BERMAN v. PARKER and HAWAII HOUSING AUTHORITY v. MIDKIFF. The chapter performs a useful service by collecting media accounts of the three decisions from a wide range of sources. To explain why BERMAN and MIDKIFF produced almost no public controversy or media attention while KELO produced a firestorm, Wolf provides a list of five key differences, [*235] ranging from the influence of the Reagan years on property rights thinking to the rise of conservative talk radio. The chapter is less useful than it could have been, however, because Wolf lets his distaste for conservative points of view on property rights color his analysis. He also fails to give sufficient attention to the role of the Institute for Justice, a Washington, D.C. libertarian public interest law firm that not only represented Susette Kelo but also spearheaded the post-decision campaign for state laws restricting the use of eminent domain. As with the first chapter, Wolf’s essay would have been better if it was balanced by an analysis of the media from an opposing view point. (Readers seeking such an account should read Nadler, Diamond, and Patton (2008), and Somin (2009).

Chapter three, by George Mason University law professor Eric Claeys, examines the natural law maxim that “a man’s home is his castle” in light of the KELO decision, finding that the aphorism is more complex than is often acknowledged, providing protection not just for a homeowner faced with a proposed economic development eminent domain action, but also for a developer, business, or low income tenant resisting middle class efforts to zone them out. He concludes by noting that “the castle metaphor challenges home owners whether they are prepared to take the bitter with the sweet” (p.55). I have long been a fan of Claeys’ work on property rights precisely because he finds such interesting questions lurking beneath the surface, and this chapter is among the most interesting in the book because it challenges the easy reading of the issues posed by eminent domain as solely between the individual homeowner and the state.

One of the puzzles in KELO is how Justice Sandra Day O’Connor moved from author of the majority opinion in MIDKIFF in 1984 to the author of a stinging dissent in KELO in 2005, providing one of the most quoted lines from the KELO opinions that “[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carleton, any home with a shopping mall, or any farm with a factory.” In chapter four, Widener law professor Ben Barros examines the Supreme Court’s conference notes from MIDKIFF and BERMAN to determine whether Justice O’Connor’s effort to explain away this seeming inconsistency is successful. He concludes that her account of MIDKIFF is not supported by the conference notes and that the stronger position would have been for her to argue that BERMAN and MIDKIFF were incorrect and should be overruled. This is a fabulous use of the historical material, and this chapter ought to be required reading for any student, professor, or lawyer contemplating the BERMAN-MIDKIFF-KELO trilogy and scratching his or her head over O’Connor’s changing position.

Chapter five, authored by University of Durham law professor Tom Allen, offers a comparative view, describing the legal framework for eminent domain in Britain. The chapter’s account of how the differences in institutions produce totally different public debates is an excellent example of the impact of the law on framing policy questions. Perhaps most crucial is the difference in how local governments raise funds. British localities are not dependent on [*236] local real estate taxes, thus losing an important incentive to use eminent domain to lure new tax payers to their jurisdictions. And the British state exercises considerable control over local governments’ ability to compete for economic development, effectively cartelizing what is a highly competitive marketplace in the United States. The chapter develops these points in a thorough examination of several development projects. Any course examining economic development and eminent domain would benefit from including this chapter among its readings.

In the sixth chapter, Seton Hall law professor Marc Poirer puts KELO into the context of another 2005 Takings Clause case, SAN REMO HOTEL v. CITY AND COUNTY OF SAN FRANCISCO. Poirer, an important voice in property law on the left, sees these two cases as part of the Court’s overall deference on land use issues to “state and local fora and processes” and away from “inflexible federal standards” applied by the federal courts. Poirer mounts a more articulate policy defense of the KELO outcome than does Justice Stevens’ majority opinion. However, Poirer’s reading of the contours of the dispute in KELO is hardly the only possible account of the transaction at issue in that case. In particular, there is considerable evidence of rent-seeking in which a large corporation and local political class used the political process to expropriate property for their own benefit. Indeed, the vagueness of the planning process in KELO, which showed Ms. Kelo’s home being used only for “park support” purposes, raised important questions about the fairness and purpose of the local government’s actions. Here the weakness of the book is not internal to the chapter – Poirer presents an interesting and thoughtful defense of KELO – but that the chapter is not presented within a continuum of interpretations.

Chapter seven, by Seton Hall law professor Rachel Godsil and law student David Simunovich, explores the issue of just compensation for a taking in the context of several proposed reforms designed to elicit truthful reporting of property owners’ self-valuations. These are important issues, and the chapter provides a careful examination of many of the current policy options. It does not discuss the post- KELO state law reforms designed to limit eminent domain abuse by increasing compensation, a curious omission from the book as a whole.

The final chapter, by University of North Carolina law professor Carole Necole Brown, places eminent domain in the context of post-natural disaster development. Unfortunately, the chapter’s valiant attempts to do this within the context of KELO, so as to fit within the book’s overall themes are distracting, as KELO has no direct relevance to the post-natural disaster context. The chapter also examines Michigan’s back-and-forth on state constitutional issues relating to economic development eminent domain in POLETOWN NEIGHBORHOOD COUNCIL v. CITY OF DETROIT and COUNTY OF WAYNE v. HATHCOCK. As with KELO, the fit between the issues in the two Michigan cases and the post-natural disaster context is rough at best, making it difficult to connect the legal issues in the cases to the policy questions raised in [*237] the chapter. The reader is left wishing that Brown had been told to forget KELO and the Michigan opinions and develop her analysis of the post-natural disaster context as a distinct area of Takings jurisprudence.

Overall, this book presents a series of interesting analyses of issues (mostly) arising out of KELO, written by a largely left-leaning group of law professors. While individual chapters would be extremely useful in seminars on takings, community development, or property, the collection as a whole suffers from the lack of multiple view points on issues where there are unrepresented, well-articulated positions that would add valuable context. Moreover, considerable time is devoted to summarizing KELO repeatedly – an initial chapter providing a broad overview of the case could have eliminated considerable repetition in what is already a slender volume. The publisher’s unfortunate pricing decision, particularly for such a slim collection, also hinders its potential to serve as a course text. Despite these complaints, there is considerable value in this too short volume, and anyone working on scholarship on takings and economic development, KELO, or related topics will want to consult it.

REFERENCES:
Nadler, Janice, Shari Seidman Diamond, and Matthew M. Patton. 2008. “Government Takings of Private Property: Kelo and the Perfect Storm.” In PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY. Nathaniel Persily, Jack Citrin, and Patrick Egan (eds). New York: Oxford University Press.

Somin, Ilya. 2009 (forthcoming). “The Limits of Backlash: Assessing the Political Response to Kelo.” 17 SUPREME COURT ECONOMIC REVIEW.

CASE REFERENCES:
BERMAN v. PARKER, 348 U.S. 26 (1954).

COUNTY OF WAYNE v. HATHCOCK, 471 Mich. 445 (2004).

HAWAII HOUSING AUTHORITY v. MIDKIFF, 467 U.S. 229 (1984).

KELO v. CITY OF NEW LONDON, 545 U.S. 469 (2005).

POLETOWN NEIGHBORHOOD COUNCIL v. CITY OF DETROIT, 410 Mich. 616 (1981).

SAN REMO HOTEL v. CITY AND COUNTY OF SAN FRANCISCO, 545 U.S. 323 (2005).

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© Copyright 2009 by the author, Andrew P. Morriss.

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RACIAL DIVIDE: RACIAL AND ETHNIC BIAS IN THE CRIMINAL JUSTICE SYSTEM

by Michael J. Lynch, E. Britt Patterson, and Kristina K. Childs (eds). Monsey, New York: Criminal Justice Press, 2008. 310pp. Paperback. $37.00. ISBN: 9781881798866.

Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University. Matwell [at] radford.edu.

pp.231-233

As with most edited collections, this volume includes articles representing a variety of styles and a range of contributions intended to provide an understanding of the role of race in criminal justice policy and procedure. Although the blurb on the cover states that the anthology represents a “balanced assessment of whether the American criminal justice system is guilty of bias,” little evidence is presented to suggest that it is not. Several articles acknowledge the 1987 work by William Wilbanks, THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM, but none of the authors suggest that Wilbanks was correct in denying racial discrimination. In fact, the existence of racial and ethnic disparities is the starting point for all of the articles – as it should be. The real question concerns the nature of the discrimination that underlies that disparity, a query leads a number of the authors to raise related questions of how to address and remedy racial and ethnic bias.

The book is structured to provide readers with a typical criminal justice progression from a review of theories, to several articles on policing, four pieces on sentencing and corrections, and a final three that stake out newer territory: bias against whites; race and forensics; and race and environmental crime. To a great extent, all eleven articles share the perspective that in America, membership in a minority race is a stigma, a sign of undesirable difference that influences the responses of the majority. In general, stigmatization carries negative associations, such as inferiority and, most importantly to the study of criminal justice, it carries the association of dangerousness. The dangers attributed to members of racial minorities can range from physical threat to the possibility of social disruption. The fears prompted by stigmatization are often unconscious. Most of the scholars included in this work acknowledge that it is these implicit prejudices, rather than overt racism, that have created systemic disparities in the criminal justice system and that must be attended to.

Several articles in RACIAL DIVIDE stand out, either for their comprehensive treatment of the topic or for their originality. Although there are numerous studies on racial bias and the death penalty, the chapter by Judith Kavanaugh-Earl, John K. Cochran, M. Dwayne Smith, Sondra J. Fogel, and Beth Bjerregaard, is a valuable contribution to that literature. The authors note that the Supreme Court held in MCCLESKEY v. KEMP that, to rise to the level of unconstitutional racial bias, the death penalty would have to be intentionally applied to an individual defendant because of his race. Although [*232] social scientists have consistently found statistical correlations between race and the imposition of capital punishment, the Court has found that such disparities are tolerable within equal protection guarantees. Kavanaugh-Earl and colleagues provide an exhaustive review of studies examining the significance of the race of the defendant and the race of the victim, including recent analysis of data gathered in North Carolina. If, as they suggest, aggravating factors may weigh more heavily against black than against white defendants, it may be that such biases cannot be cured by procedural reforms. They also raise some interesting questions regarding the capriciousness of the application of the death penalty based on studies of prosecutorial charging decisions. Ultimately the article suggests (less than enthusiastically) two possible remedies that could address racial bias in the capital system – subjecting death penalty cases to strict scrutiny analysis or legislating a mandatory death penalty (rejected by the Supreme Court in WOODSON v. NORTH CAROLINA.) This article is a model for both its thorough review of the literature and for its thought provoking conclusions.

A second outstanding piece is “The Things That Pass for Knowledge: Racial Identity and Forensics,” by Tom Mieczkowski. In brief, Mieczkowski argues that scientific classification requires that characteristics used to classify must be both exclusive and exhaustive. There are no “racial characteristics” that meet those standards, mainly because race is a social rather than a physical category. Yet how often does forensic analysis purport to identify a suspect’s race? This article opens up fascinating questions, and it concludes with a warning. While race may sometimes be a useful tool in identifying a suspect, its use in forensic investigation may also contribute to the reification of race as a category and to the prejudices that accompany such analysis.

While most of the chapters in RACIAL DIVIDE consider race as it contributes to unequal enforcement, the chapter on race and environmental crime looks at race as a factor in unequal victimization. Paul Stretesky argues that both examining the causes of environmental crime and studying the process of identifying and punishing environmental criminals have implications for race and class. If racial minorities and poor people are more likely to be victims of environmental crimes (air pollution, toxic substances, hazardous waste disposal), what does this suggest about the rational choice motivation of the perpetrators? What does it suggest about the cumulative effects of these environmental hazards on the health and development of current and future generations of victims? Suppose higher rates of crime in minority communities are related to higher levels of exposure to lead caused by industrial processes intentionally sited in those neighborhoods? What does this suggest about responsibility?

There are several other worthwhile articles in this collection, notably those dealing with policing, prisons, sentencing, and drug policies as they affect juveniles. Lynch, Patterson, and Childs deserve credit for encouraging the individual authors to cross-reference the work of their co-contributors. Those links provide useful cohesiveness to the collection. I wish they had also asked [*233] for consistency in the use of either “Black and White” or “black and white.” There may be an ideological reason for choosing one or the other, but perhaps the scholars could have come to an agreement.

I would be happy to assign a number of the articles in this collection to a class of upper level undergraduates or graduate students. They would be exposed to useful reviews of the literature, excellent current scholarship, and provocative ideas for bridging racial divides in the criminal justice system.

REFERENCES:
Wilbanks, William. 1987. THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM. Monterey, California: Brooks/Cole Publishing.

CASE REFERENCES:
MCCLESKEY v. KEMP, 481 U.S. 279 (1987).

WOODSON v. NORTH CAROLINA, 428 U.S. 280 (1976).

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© Copyright 2009 by the author, Mary W. Atwell.

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AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS: BRIDGING THE PEACE AND JUSTICE DIVIDE

by Louise Mallinder. Hart Publishing: Oxford and Portland, OR, 2008. 598pp. Hardback. $126.00/£60.00. ISBN: 9781841137711.

Reviewed by Juan Jesus Mora Molina, School of Law, Universidad de Huelva, Spain. Email: juanjesus.mora [at] sc.uhu.es.

pp.228-230

Subtitles usually reveal the real matter that authors intend to develop. “Bridging the Peace and Justice Divide,” the subtitle to AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS, by Louise Mallinder, represents the real intention concerning serious research questions and deep convictions because of the consequencies observed in daily reality. How does one match “peace” and “justice? How is it possible to safeguard human rights when they are, in many cases, sacrificed in the interest of “pacification?” What happens to victims in political transitions? When can an amnesty law be considered fair and moral apart from legal? How far we can say “oblivion” is synonimous of “reconciliation?”

We can pose a huge number of questions such as the ones above, and the list will never end. Nevertheless, we can find a common point: that is, the focus is always related to re-establish a lost equilibrium, to restore the social peace and to recover the order. For all those reasons, theorizing without a solid foundation of information is not advisable. When exploring reality, we realise the true distance between the “ought-to be” and “to be,” and for that one can feel trapped by “ideal types.”

If an author hopes to remain coherent during all phases of research, he must identify a methodology suitable to assess the observations at hand and the theoretical framework he has chosen from the beginning. Mallinder has accomplished this quite well. What can be hidden “beyond legalism?” Through comparative empirical methods, Mallinder seeks a thicker understanding of the relationship between amnesties and transition from conflict. To do so, she constructs an extensive database of amnesty arrangements worldwide and explores the intersection between amnesties and international human rights law.

Now that we understand the primary theme of AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS, it is not hard to appreciate the centrality of amnesties to the process of conflict transformation. Nonetheless, Mallinder envisages the necessity of assessing the wider field of transitional justice – or studies which have been undertaken by means of legalistic, theoretical and jurisdiction-specific methods – and has created an extensive Amnesty Law Database containing information on 506 amnesty processes in 130 countries since the Second World War. [*229]

Why is it worth spending our time in reading this extraordinary essay? Mallinder has written an excellent handbook on the issue of amnesty. Indeed, she presents a comprehensive and original view of transitional justice and amnesty.

Page after page, chapter after chapter, variations in state practice are uncovered. One of the elementary questions this work tries to answer is why states, as a general rule, are keen on eschewing international justice. Although it is confirmed that generosity, at the time of adopting a legal measure, does not always work, there appears to be a trend against blanket amnesties. Mallinder’s thesis suggests that international actors should institute legal proceedings to erase the most abominable patterns of amnesties. The international community cannot look the other way while victims of crimes do not gain justice.

From the start, Mallinder makes her goals clear. The concept of “amnesty” does not mean a Faustian pact. There will not be amnesty if truth and justice are given up for political stability, till victims are not forced to forget for the sake of reconciliation, till all groups in conflict are not afraid to take risks in favor of healing political transitions. That is the approach AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS puts into practice. Furthermore, because amnesty laws are enected to respond to political crisis, we cannot accept that a political crisis is closed at the expense of weaker people. It is never satisfactory to support impunity. But, what happens with victims when full prosecution for all offenders is not possible? Can a blanket amnesty be tolerated?

Apart from that, Mallinder divides her book into three parts. Part I involves exploration of the motives and characteristics of amnesty laws, as well as bringing to light how amnesties can be tailored to suit diverse contexts, while exploring the theme of how amnesties can co-exist with other transitional justice mechanisms. Using a methodology based in case law from national and international courts, Part II deals with the implications of each adaptation on the amnisties’ validity at domestic and international levels; finally. Part III examines the responses of key stakeholder groups within political transitions in order to determine whether amnesties can be reconciled with the needs of each group.

Mallinder asserts five objectives: first, exploring “a realistic approach to the problems faced by status emerging from periods of mass violence involving large proportions of the population, where widespread prosecutions may be impractical or potentially dangerous;” second, analysing “the different facets of amnesty laws and their relationship to international human rights and humanitarian law in more detail than has been done previously;” third, considering “whether the needs of victims can be reconciled with amnesty laws;” fourth, making public “the behaviours of international actors in relation to amnesties” and researching “how international actors can coordinate their interventions with domestic efforts in order to complement and strengthen the domestic processes;” and fifth, “moving beyond a pure legal analysis of amnisties, by considering them within [*230] the wider political context in which they are introduced.”

According to the goals above, Mallinder’s approach acquires an interdisciplinary view, including literature and analysis that arise from disciplines such as criminology, political science, conflict resolution, international relations and psychology.

I would like to make reference again to one of the most original inputs that Mallinder has incorporated to her research activity – the Amnesty Law Database. Why was the creation of a law database needed to investigate the behaviours of states towards amnesty? According to Mallinder’s knowledge, there is no tool concerning amnesty as comprehensive as the Amnesty Law Database. Moreover, it is asserted to be the basis for the research. These two last affirmations are sustained by the fact that the scope of information and data included in this database cover amnesties all over the world after the Second World War – an extraordinary resource.

For this reason, Mallinder has produced a database that will be an essential device for anyone else in desire of studying the political, social and legal phenomenon of “amnesty.” To design the database, the Research Fellow in Law at Queen’s University Belfast has used two kinds of sources (primary and secondary) encompassing a vast multiplicity of documents, such as domestic legislation, academic writing, jurisprudence from national and international courts, international treaties, opinions given by very qualified people in monitoring treaties, statements by intergovernmental organisations, reports by states and NGOs, and articles from newspapers.

All Parts in AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS contain some chapters that develop the main issues. Part I is divided into four chapters dealing with such matters as enacting amnesties and granting immunity. Part II addresses such issues as implementation, prosecution, and court proceedings. Part III focuses upon legal obligations of various actors, rights of victims, and related issues. Together, they comprise a compelling story.

I do not want to finish this review without mentioning two factors. We must be grateful for the excellent bibliography and for the information in the three appendices: one presents a remarkable list of anmensty processes, a second one contains much informationa in relation to the international court system, and the last one concerns a guide of provisions for a universal jurisdiction legislation. Finally, using a case-study methodology Mallinder assesses thirteen very important state experiences (Uruguay, Uganda, Spain, Algerian, Chile, Bosnia-Herzagovina, Timor-Leste, Rwanda, South Africa, El Salvador, Colombia, Haiti and Sierra Leone).

For all the reasons, and for many others which the limitations of a review do not permit to set out, Mallider’s AMNESTY, HUMAN RIGHTS AND POLITICAL TRANSITIONS should find a wide audience.

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© Copyright 2009 by the author, Juan Jesus Mora Molina.

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WHERE HAVE ALL THE LIBERALS GONE? RACE, CLASS, AND IDEALS IN AMERICA

by James R. Flynn. New York: Cambridge University Press, 2008. 352pp. Hardback. $28.00/£19.99. ISBN: 9780521494311. eBook format. $22.00. ISBN: 9780511426629.

Reviewed by Paul Frymer, Politics Department, Princeton University. Email: pfrymer [at] Princeton.EDU.

pp.224-227

As the title suggests, James R. Flynn’s new book has a big argument and scope, engaging in debates about inequality, ideas, and politics. At the outset, he argues that, “what passes for public debate in America is barren because of the failure of will and a poverty of ideas among American liberals” (p.1), and he proceeds, over the course of 300 swiftly written pages, to engage with four problems in modern society – issues of race, class, military power, and morality. He argues that, in order to respond to these problems, Americans must return to the civic tradition and philosophical foundation of Thomas Jefferson. Inspired by Jefferson, Flynn promotes a more intellectually rigorous political dialogue that he believes might help us begin to counter the problems that ail modern-day America. In so doing, Flynn spends anywhere from a few paragraphs to several pages on a wide-ranging set of topics, including questions of what constitutes intellect, free-will, how we can respond to corporate irresponsibility, how we can better promote peace in the Middle East, as well as the philosophical traditions of the likes of Leo Strauss, Aristotle, and Nietzsche. The book is written with flair and confidence, the latter of which is reflected by the range of topics he handles and his tendency to use relatively few citations to support his claims. Given Flynn’s scope and ambition, the success of such a wide-ranging book rests on his ability to write engagingly, thoughtfully, and to make connections between a wealth of topics so as to make us think differently about the world we live in and face. Think Malcolm Gladwell or Steven Levitt as recent models – an attempt at big think on everyday themes from an out-of-the-box thinker that combines economic theory with ample bits of psychology and biology, a pinch of philosophy, and just a dab of ethics and religion. The result, unfortunately, is decidedly mixed, with more misses than makes.

The biggest problem is that for much of the book (especially the first half, which focuses on racial inequality) Flynn’s big think seems less out of the box than out of date. This problem might have been avoided had he listened to his own advice: early in the book, he criticizes Carey Estes Kefauver, the progressive Tennessee Senator in the mid-twentieth century, for failing to recognize his own limitations when it comes to race, remarking “how easy it is in America to be a highly principled person, and be without racial bias, and yet not see the state of black America for what it is” (p.33). There is no better evidence for this statement than reading Flynn’s own well-meaning and principled discussion about how to improve black America. To the degree that his arguments [*225] resonate (and at least some of what he says relates tangentially to comments from the likes of William Julius Wilson to Barack Obama), they are hampered with clumsy and insensitive language as well as off-the-cuff assumptions on the border between bad taste and outright gaffe.

He begins his discussion on race by stating that, “How black men and women interact sexually is the best starting point to comprehend the state of black America” (p.39). His claim, that the black community needs more fathers who stick around for the kids, is not problematic simply because it is controversial (after all, even though many would argue that issues of class, history, institutions, and discrimination are more important to the current status of racial inequality, no less a source than President Obama has made headlines for emphasizing the need for black men to be more accountable for their actions in their personal lives); it is problematic because the arguments employed to defend his claims are fraught with generalities, half-truths, and stereotypes. Flynn believes that African American women cannot find enough African American men who might make suitable husbands. This, he argues, is largely because nearly a quarter of black men in the United States are “prisoners at large,” and thus for a variety of socio-economic reasons, have trouble getting jobs and being good fathers (p.50). This also has consequence for the vast majority of African American men who are not “prisoners at large;” because, assuming these potential husbands are acting rationally, Flynn argues that these black men are likely to “exploit the fact that they are scarce commodities” and thus “feel that they can get steady sex without ever having to offer marriage in exchange” (p.51). So much for the possibility of black men becoming husbands for black women. How about inter-marriage? Unfortunately, Flynn argues, white men also do not want to have children with black women, because “a white male will not want the consequences of marrying a black wife, namely, that his children will bear the handicap of being socially classified as black” (p.64). Of course, there are some exceptions. “Asian women would find many more white spouses,” he suggests (though he does not say why); and white women – faced with the “prize of an outstanding black man” – are more likely to marry across races because “in our society, a woman’s self esteem is much more tied to the achievements of her spouse” (p.120).

To Flynn, it is self-evident that “the culture of black American males stipulates that personal offenses should be settled by interpersonal violence without recourse to the law” (p.163). As such, he asserts that there are empirical differences in how often different groups commit violence, and thus, understandable that Americans discriminate and profile on the basis of race: “black skin . . . allows rational actors to predict behavior, or at least make statistical predictions . . . (and) it makes sense to act on statistics if more accurate information relevant to an individual’s behavior would be costly” (p.112). Obviously, this short book review is not the place to challenge empirically such a big claim. But at the least, Flynn’s claim about African Americans having a cultural propensity towards violence is an argument that has been made by other scholars and pundits about a myriad of different groups inside [*226] and outside of the United States, and has even been made about the United States as a whole (Regarding the latter, see Whitman 2003). The better answer is clearly more complicated, involves a series of intervening factors and variables, and ought to be discussed with detail and attention to nuance.

When Flynn turns to affirmative action policy, his intent is to defend the policy as necessary by proving that discrimination exists. Again, as with previous chapters, whether one agrees with his goals or not, his reasoning is crude and problematic. He defends affirmative action by asserting that racism is real. Although there is plenty of evidence at his disposal that he could use to support his claim, he relies instead on the type of anecdote one might expect in an Andrew Dice Clay standup routine: “White after white, despite powerful sexual attraction, has chosen not to make their children black because they know, they know very well, that to do so would be to give their children bad luck in terms of group membership. Even the violent and drunken Irish, the hyperemotional and clannish Italians, the stolid and Pinochle-playing Poles found it easy to marry out. But does anyone want to marry blacks? They do not” (p.127). If you are not yet convinced by his arguments, he provides this scenario: “Were you and your partner to die soon after the birth of a child, would you prefer that child to be raised by black adoptive parents or white adoptive parents?” Apparently, he assumes that the “you” reading his book is a white person, as he writes two sentences later, “most people care as much for the welfare of their children as they do for themselves, and if few whites would choose the black option, there is a prima facie case that few of them believe that the black experience has become a privileged one” (p.123).

At other times in the book, Flynn’s ideas make a certain sense, but seem to engage with debates that ought to have been over decades ago. Flynn is best known for his path-breaking and controversial work on intelligence, IQ tests, and genetic links. He has spent a lot of time arguing with the likes of Charles Murray against the claim that racial differences in IQ tests reflect differences in genetics. He is firmly in the camp that IQ differences are a result of one’s environment; his finding (“the Flynn effect”) that IQ scores rise over generations has become well known and respected. In this book, he spends some of his time rehashing such debates, explaining why racial differences exist on IQ scores, pointing to the myriad of problems that genetic-based arguments have – namely the absence of much real data that are not taken absent of context.

Finally, for an author deeply concerned about remedying racial inequality, and simultaneously interested in promoting the virtues of Thomas Jefferson, there is surprisingly little mention of Jefferson’s own views on race. Flynn must know that Jefferson’s written thoughts on African Americans and Native Americans, as well as his personal relationships with African American slaves, have received an inordinate amount of attention in recent years. And yet, Flynn devotes a scant few sentences to assert that Jefferson thought of Native Americans as equals, and to defend Jefferson’s decision to keep slaves as a noble one – because Jefferson recognized that freeing slaves would lead to worse alternatives than living a [*227] life enslaved by an enlightened master. Again, whether Flynn is right or wrong is beside the point: he makes quick claims in the midst of incredibly contested and murky waters. Flynn provides neither scrutiny nor sensitivity to any of his discussion on race. This is bold and out of the box only if Flynn were writing a half-century ago; today, it reads less as shocking and provoking than as tired and bizarre.

But enough about Flynn’s view on race; one of the nice things about Flynn’s book is that if you disagree with one argument, you can usually turn the page to find a new argument on a new topic. Much of the second half of the book is on a scattering of thoughts, and most of these work better. Throughout the book, Flynn provides lots of food for thought – interesting ideas about how the United States should act as a power in the world, and how we should think about intelligence and the ways in which the world shapes the individual’s ability to act intelligently. He also provides policy ideas on a range of topics, particularly America’s role in foreign policy and ways to reign in corporate irresponsibility. On the latter, he proposes the establishment of a National Business School that commands moral behavior and transparency in the way that the American Bar Association is expected to behave. Later in the book, he writes an interesting if not path-breaking chapter on the political philosophy of Rawls, Strauss, Plato, and Nietzsche.

For the readers of this list-serve interested in law and courts, you will not find too much here directly related to such topics (except a blurb on the back cover from NYU law professor Jeremy Waldron). You will find a lot of discussion of what is wrong with America and why we need to change the discussion. Like a lot of authors, Flynn has certain sentences – such as claiming on the first page that liberals do not have ideas and alternatives – that feel a bit dated with the Obama election. Unlike a lot of these other authors, much of Flynn’s text was dated well before most Americans had ever heard of Barack Obama.

REFERENCES:
Whitman, James Q. 2003. HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE. New York: Oxford University Press.

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© Copyright 2009 by the author, Paul Frymer.

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AMERICANS AT THE GATE, THE UNITED STATES AND REFUGEES DURING THE COLD WAR

by Carl J. Bon Tempo. Princeton, NJ: Princeton University Press, 2008. Cloth. 280pp. $35.00/£24.95. ISBN: 9780691123325.

Reviewed by Samuel S. Stanton, Jr. Associate Professor of Political Science, Department of Political Science, Grove City College, ssstanton [at] gcc.edu

pp.221-223

Carl J. Bon Tempo’s work is designed to examine the intermingled domestic and international contexts of US refugee policy during the Cold War and into the post Cold War eras. This design is carried out by examining the existing state of US refugee policy entering the Cold War and highlighting different periods of the Cold War era. Included in this work are three distinct case studies regarding refugees admitted into the US; Hungarians in the 1950s, Cubans in the 1960s, and Indochinese in the 1970s and 1980s. Bon Tempo carefully considers domestic sources of policy and international political realities that have been important to the shaping of US refugee policy.

In explaining refugee policy in the first half of the 1900s, Bon Tempo claims that indifference and concerns for national interests combined with economic concerns and cultural biases led to opposition to immigrant admission, and the possibility of refugee admission was quite stymied. In fact, refugees were defined by both the League of Nations and the US Senate as either Russian or Armenian, and people who were without the protection of government or refugees from Turkish policies toward Armenians (pp.15-16). US Policy did not distinguish for most Europeans the difference between refugee and immigrant and required refugees to apply through the same process as normal immigrants. Bon Tempo also points out the restrictive nature of US immigration policy, including crippling quotas for the Eastern Hemisphere and focus on accepting the “correct type” (predominantly Anglo-Saxon) of Europeans. Readers will be disappointed in this first section of the work if they expect great detail, as Bon Tempo rushes to put out a large amount of information in a short space.

More detail is given to the post-WWII period, 1945-1949. Bon Tempo presents a lengthy exposition of President Truman’s 1946 proposal to accept European refugees outside of the normal quotas leading to the 1948 Displaced Persons Act. Particularly important for students and researchers to note is that the acceptance was not without limiting criteria – often based on political decisions about the quality of the regime from which the refugees were fleeing. The Displaced Persons Act of 1948 led to the entry of over 400,000 European refugees into the US prior to the closure of the displaced persons program in 1952 (p.25). Bon Tempo explains in detail the early 1950s cultural issues that led to legislation from a primarily restrictionist stance. Led by politicians such as Senator McCarran (D-NV) much of the immigration and refugee related policy was fed by disapproval of New Deal and Fair Deal liberalism and [*222] growing anticommunism associated with this point of view. The fight between proponents of progressive refugee policy and restrictionists led to the passage over Truman’s veto of the McCarran-Walter Act, which was just as restrictive as immigration laws of the 1920s, and to Truman’s Emergency Migration Program – which proposed to admit 300,000 Europeans, including 21,000 “religious and political refugees from communism in eastern Europe” (p.33). This section of the work is Bon Tempo’s strongest written treatment of pre-Cold War policy and serves to build the point of departure for his primary focus, which is refugee policy during the Cold War.

Bon Tempo’s examination of the 1950s era Refugee Relief Program and the 1953 Refugee Relief Act is interesting for two primary reasons. One, it does a quality job of explaining the anxiety of the US population over communist infiltration of the country by immigrants and refugees. Two, it highlights that the primary concern of refugee policy was not political persecution, but overcrowding of Western Europe during a period of economic hardship and redevelopment following WWII. The explanation of the provisions and requirements of the Refugee Relief Act (RRA) are accurate, but Bon Tempo’s examination does not offer a glimpse at how refugee is defined within this act, nor of how this obvious attempt at simply resettling Europeans in need of homes and jobs would meet a standard of refugee resettlement. It is however, an accurate history of the RRA.

Bon Tempo claims the late 1950s to mid 1960s was a period of failure in refugee policy reform (as he titles a subsection of Chapter 4). He points out that general country quotas were abandoned, that more visas were made available for immigration, and that refugee status was more firmly defined, make this a dubious claim. Such a claim rests only on accepting the idea of “refugee” being improperly defined as a political status. Only if the term is not properly defined as based on political persecution or a well-founded fear of such persecution can it be argued that refugee policy was a failure during this time period.

Whether one readily agrees with Bon Tempo’s assertion regarding how the US government has politically defined refugee based on popular demands, his examination of the three cases of refugee entry into the US is well done and represents a thorough assessment of the processes and political decisions regarding admission of Hungarian, Cuban, and Indochinese refugees. Particularly important in his discussion of Hungarians and Cubans is the presidential use of the parole power to allow entry into the country with speed rather than security as the primary focus. In examining the Cold War period, it is impossible to overlook the burdensome security protocols of the immigrant and refugee admissions process. Bon Tempo points out that the use of parole allowed an end run around the cumbersome nature and implementation of policies through the bureaucratic agencies.

Indeed, the case studies of Hungarian (Chapter 3), Cuban (Chapter 5), and Indochinese refugees (Chapter 6) are wonderful illustrations of the interplay of domestic attitudes and foreign policy concerns in the practices regarding refugee admissions into the US. Bon Tempo argues that refugees are admitted historically only on consideration of [*223] foreign policy issues, and that getting the American public to accept the influx is done only if necessary to allay domestic fears. The domestic fears are based on the current social climate when the refugee influx occurs. While refugee policy is usually designed to allay security fears, speed of entry can be used but requires massive public relations efforts on the part of the government (as noted in both the case study of Hungarian refugees and Cuban refugees).

Particularly, when one considers the 1951 Convention and the 1967 Protocols dealing with refugees and the status of refugees, it is still important to note that agreeing to what constitutes refugees is not the same as taking action to help them. Consider that the 1951 Convention (affirmed in the 1967 Protocols) grants refugee status for people based on persecution or possible persecution in their home state based on five factors – race, religion, nationality, social group membership, and political opinion – why is it still difficult for states to decide to admit refugees? Bon Tempo’s work points to domestic public opinion and how it shapes the political behaviors of the country, and to foreign policy considerations of the government.

Carl J. Bon Tempo has done a solid overall job of examining the acceptance of refugees into the US during the Cold War. His book is concise and historically accurate. While it may disappoint some for failing to consider the overall political and social implications of granting refugee status, and others for its lack of concern for whether the definition of refugee is outdated or was ever correctly conceived, it deserves consideration by scholars of human rights, migration, and foreign policy. It provides a good base for dispersing information and facts to students as well and should be useful in undergraduate courses for this purpose.

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© Copyright 2009 by the author, Samuel S. Stanton, Jr.

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