JUDGING THOMAS: THE LIFE AND TIMES OF CLARENCE THOMAS

by Ken Foskett. New York: William Morrow/HarperCollins, 2004. Hardcover. 352pp. US$24.95 / CDN$38.95. ISBN: 0060527218. Trade Paper. 368pp. US$14.95 / CDN$20.95. ISBN: 0060527226.

Reviewed by Henry F. Carey, Department of Political Science, Georgia State University. Email: polhfc@langate.gsu.edu .

pp.340-349

Justice Clarence Thomas has been an Associate member of the Court since his contentious but successful Senate confirmation in 1991, replacing Thurgood Marshall, the first African American to serve on the Court and the justice whom Thomas apparently reveres greatly. This might seem paradoxical, given their opposite ideologies. Their important similarities, in fact, become evident, if one learns about the importance Thomas holds for combating racism and for fighting for ideals on one’s own terms in one’s own way. Having been confirmed at a young age as the 106th Supreme Court justice, he potentially could serve one of the longest tenures and have as much influence as his predecessor, whom he apparently admires for his courage and steadfastness (similar to President Reagan’s espoused admiration of FDR). Although he likely has many years left to serve, his life history portrayed in Ken Foskett’s biography, JUDGING THOMAS, provides readers with plenty of material to analyze and judge the Justice.

To his critics, like columnist Maureen Dowd of THE NEW YORK TIMES, Thomas is “barking mad.” His defenders, like the WALL STREET JOURNAL, on the other hand, find his opinions “clear and well-reasoned, honor[ing] our constitutional traditions.” He is one of the more complicated and controversial figures in contemporary America and certainly in the history of the US Supreme Court. His October 1991, second US Senate confirmation hearings were observed by huge television audiences. In particular, the accusations of sexual harassment by a former subordinate, Anita Hill, were not only dramatic, but also led to subsequent development of US law in this substantive area.

Among defenders of Thomas, Scott Gerber (2002) has concluded that it is mistaken to combine the views of Justices Thomas and Antonin Scalia, even though that is conventional wisdom. Gerber calls Thomas a “liberal originalist” on civil rights and a “conservative originalist” on civil liberties and federalism. On the latter, Thomas rejects any idea of group rights and relies on the Declaration of Independence. Gerber finds Thomas to be a more consistent thinker than Scalia, who is more likely to justify a desired result with whatever logic is persuasive. Thomas, on the other hand, implicitly believes that the US Constitution’s framers were dedicated to the ends of the Declaration and therefore would have approved of their inclusion as goals in constitutional interpretation.

On the Court, he has joined Chief Justice [*341] William Rehnquist and other conservatives in reviving the federalism doctrine, finding that more powers ought to be redistributed from the central government to the states. He argues that the First Amendment’s establishment clause was not intended to deny a role to religion in public life, including the access of religious groups to public and government facilities. In his 6-3 majority opinion in GOOD NEWS BIBLE CLUB v. MILFORD, he wrote that a Christian youth group could meet after school hours in public-school facilities. He wrote a minority dissent against applying the Americans with Disabilities Act to Casey Martin, a disabled professional golfer whom the majority allowed to use a golf cart. He holds that there is no constitutional basis for abortion, criticizing the holding in ROE v. WADE as based on an imputed right to privacy not found in the Constitution.

Not all of his views are routinely conservative. For example, in DESERT PALACE v. COSTA, the Supreme Court ruled unanimously in an opinion written by Justice Thomas that an employee does not need direct evidence of bias in order to bring a lawsuit against an employer. He argued that if Congress intended to require a standard of direct evidence, it would have said so. Justice Thomas said that Congress’ “failure to do so is significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances.”

However, more typical of his perspective is his dissent in GRUTTER v. BOLLINGER, in which Thomas expressed opposition to affirmative action and the goal of diversity in university admissions. He quoted Frederick Douglass: “And if the Negro cannot stand on his own legs, let him fall also . . . Let him alone . . . Your interference is doing him positive injury.” Thomas also asked why so much emphasis is placed on the interests of elites to gain education, rather than on the problems of the underclass.

Thomas was nominated to the US Supreme Court with relatively few qualifications, having served on the Washington, DC, Circuit Court of Appeals for only a year and one-half, despite the fact that President George Herbert Walker Bush called him the “most qualified person in the country for the position.” His famous reaction to the accusations by Hill and others was that he had been subjected to a “high-tech lynching.” Following this and other final statements, he was confirmed by a very close 52-48 vote. By contrast, Justice Antonin Scalia was confirmed 98-0, largely because he entered the Court prior to the escalated politics of post-Bork nominations. As Scalia himself has suggested, he would not have been confirmed in the current confirmation era. Indeed, a radical nominee could not be confirmed today unless she has no judicial record or could hide her positions during the process. Otherwise, presumably only moderates will get through.

Following the experience of the Bork and Thomas confirmation hearings, we can predict that future hearings will likely be ideologically polarized, particularly over issues that do not engender compromise, such as social issues like abortion and school prayer (unlike economic questions). In addition, the filibustering of judicial nominations by the Democrats during the Bush [*342] Administration, and the attendant controversy over Senate cloture rules in 2005, suggest that the Thomas hearings and Supreme Court judicial tenure have become even more important in US political history and contemporary politics.

Critics call Thomas’ jurisprudence rigid; defenders find them to be principled. His constitutional interpretations are based largely on “originalism,” the doctrine that any constitutional ambiguity should be viewed through the optic of the framers’ original intention. Critics contend that such original meaning is often unknowable. For example, some issues were of little importance during the founding era (abortion or public education), and some technologies that are very important today were non-existent (the internet). Critics also assert that originalism does not produce more consistent interpretations than other methodologies and that Thomas’ opposition to affirmative action is hypocritical, because he was the beneficiary of such programs in his earlier career. Defenders counter that his only obligation is to reach honest conclusions about the constitutionality of a questioned policy and wonder why a black justice should be singled out for more criticism than other opponents of affirmative action, such as Justice Scalia.

Finally, Justice Stephen Breyer and Thomas have had a rather heated set of exchanges on the relevance of foreign court decisions to US jurisprudence. Yet, it has been Scalia who has taken the lead in public debates against the views of Breyer and Justices Sandra Day O’Connor that foreign law can be instructive in their more eclectic approach to constitutional interpretation. (Scalia-Breyer Debates 2005) Thomas was in the minority in LAWRENCE v. TEXAS (2003), which declared a state sodomy law to be unconstitutional, and in which the majority cited decisions of the European Court of Human Rights. Justice Thomas rarely writes separate opinions, because he frequently votes with at least one other colleague. Thus, his reputation as a maverick is perhaps undeserved.

Commentators assume that Justice Thomas refers to textualism, strict constructionism, and originalism, as his preferred methods of analysis. However, he does not follow any one of these methods all the time, and may not use any of them occasionally. In fact, he has offered no clear indication of his jurisprudential approach. This may reflect inconsistency or perhaps the inherent limitations of labels. There can be, of course, judicial activism from either the left or the right, and originalism can be conceptualized as founded partly on the natural law of the Declaration of Independence, which would depart from a textualist approach to originalism which would emphasize the words of the Constitution. Justice Marshall advocated that judicial review should follow from the principles of natural law, a view which Thomas apparently shares to an extent as well because of his opposition to slavery, which was originally accepted and which Thomas would not have accepted, even prior to the Thirteenth Amendment. So, Thomas, unlike Scalia, is more a conservative eclectic than a consistent, originalist activist (even if both would argue that an originalist could not be a judicial activist). Ironically, the normally quiet Thomas in Court may have a better judicial temperament, or the appearance [*343] of one, than the sardonic Scalia.

Did Thomas become conservative, or much more conservative, as result of his second round of Anita-Hill related confirmation hearings? It is an interesting hypothesis suggestible from Ken Foskett’s biography, JUDGING THOMAS. More controversially, would Thomas have remained a moderate or a mainstream conservative had he not thought that he had undergone a “high-tech lynching?” Foskett writes that this outburst was out of character for Thomas in public tone, but not in his attitudes.

I would argue that this book provides the data for making the case that Thomas’ turn toward ultra-conservativism on the Supreme Court has been a characteristic response to perceived racial discrimination by asserting black capability and self-reliance, while rejecting traditional black orthodoxy. This fascinating book depicts a man prone to post-traumatic stress, based on a temperament of extreme reactions to the racially charged issues which have dominated his life, as well as from an austere, self-reliant upbringing for most of his youth. Yet, he has opted for a “white” establishment that his grandfather warned him not to rely upon. This is presumably because of his ambivalence about his grandfather, who was too harsh and hypocritical to be followed completely, as well as because of their estrangement in adulthood. Thomas’ pattern of extreme reaction, moving first to the left, then to the middle, then to the right, and finally to the extreme right, has sent him toward independently created directions. He has not yet changed again after nearly fifteen years on the Supreme Court, though one is tempted by his uncharacteristic intervention and outburst during oral arguments a few years ago in a case regarding the use of racially hateful speech, which conventional constitutional jurisprudence renders a protected, civil liberty.

JUDGING THOMAS makes no pretense to explain Thomas’ jurisprudential approaches, and this reviewer’s conclusions regarding potential influences of his people and occurrences in his earlier life were gleaned from reading the book. It is not an intellectual biography but a painstakingly brilliant depiction of his formative experiences. The book is fun to read because the reader can draw one’s own inferences about the causes of Thomas’ jurisprudence. Foskett took a year off from his job as an investigative reporter for the ATLANTA JOURNAL-CONSTITUTION to write the book, which expands upon three lengthy articles published several years earlier in the newspaper. That Foskett managed to interview Thomas for this book is an unusual achievement, because the Justice has generally refused to speak with the press, including Foskett himself in his earlier newspaper series. Those who know Thomas report that he has a prodigious memory and will talk for hours with friends. He feels that the news media made little attempt to portray his life accurately. He holds great resentment toward the press and severely restricts its access to him.

Foskett presents an in-depth big picture, leaving the reader to connect the dots and draw causal inferences to understand Clarence Thomas the man and the judge. Apparently, Foskett intended to have a concluding chapter analyzing the “thick description,” but his publisher was [*344] opposed. Nonetheless, this book is a vital source for scholars of Justice Thomas’ jurisprudential development. It is also a fascinating narrative about his life and his path to the High Court from impoverished circumstances unlike most or all of his colleagues. Of course, any book that seems to be sympathetic to Thomas engenders criticism, and this book was hit fairly hard in the WASHINGTON POST and the NEW YORK TIMES BOOK REVIEW, although it was praised in the NEW REPUBLIC. Much of this antipathy reflects on the reviewers, not the book, which presents a balanced account and a minimalist appraisal of Thomas’ life, not his jurisprudence.

Upon graduation from Yale Law School, Thomas was initially rejected by every law firm to which he applied in Atlanta, though Foskett reports he eventually received an invitation to one firm, but after he rejected an offer from a black sole practitioner in Savannah, Georgia and after he accepted his first job in the spring of 1974. He began as Assistant Attorney General in Jefferson City, MO, in the office of state Attorney General, John Danforth, who later became a US Senator and was one of his most eloquent advocates in his Supreme Court confirmation. He worked for Monsanto Corporation from 1977-1979 in the pesticide and agriculture division. Subsequently, he was Legislative Assistant to Senator Danforth from 1979-1981, Assistant Secretary for Civil Rights in the US Dept. of Education (1981-82), and Chairman of the US Equal Employment Opportunity Commission (1982-1990). Much of Foskett’s original research concerns his time in the latter two federal posts, when Thomas was a political moderate, but came under the tutelage of Straussian intellectual mentors and other conservative activists.

The grandson of a sharecropper on the Thomas side and independent farmers on the Anderson side of his family Thomas was born on June 28, 1948, near Savannah, GA, the second child of M.C. Thomas and Leola Williams. He was raised, after his parents divorced, by his grandparents, who owned a 75 acre farm in Savannah. His grandfather, Myres Anderson, died in 1983, and Thomas keeps a bust of him in his office, in addition to portraits of Booker T. Washington and Frederick Douglass.

Thomas has said that he restricts his public speaking, because as a child he learned an English patois based on an African dialect. As a result, he has long emphasized listening more than speaking out in public. Foskett believes his silence in Court has been a mistake because the public assumes that he is not intelligent enough for the job. He was educated in Catholic schools in Savannah, graduating from St. John Vianney Minor Concepcion Seminary in 1968. He graduated ninth in his class at Holy Cross in 1971 and received a J.D. from Yale in 1974. At Yale he was a political activist with some leftwing views. When and how he became a conservative activist is not known in any detail, other than that his views emerged during his time as Chair of the EEOC.

A NASCAR fan, in 1999 he became the only Supreme Court justice to serve as Grand Marshal at the Daytona 500, and, a weight-lifter, he is perhaps the most athletic since Byron White and William O. Douglas. He attends daily mass at St. Joseph’s Catholic Church on days when [*345] he is in Washington. He urges others in speeches, such as at the 2003 University of Georgia Law School graduation, not to feel like “victims,” no matter how many trials and tribulations they might face: “Today as the fabric of society is saturated with complaint and protest, each of you has the opportunity to be a hero,” he said. “Do what you know must be done.”

In addition to recounting a biography of Justice Thomas, this book has three important sub-plots involving life in the segregated south, the influence of his grandfather, and finally, the Washington culture of public interest groups competing for influence. The latter’s “feeding frenzy” is perhaps most familiar to most readers, though the details of Thomas’s torment during his confirmation process, are generally not known and can be found in this book. The depictions of a segregated South will be familiar to many, but they contribute to a more complete understanding of our central figure’s view of the world today, which entails a sense of liberal outrage, not unlike what some neoconservatives claim they retain from their misbegotten periods of youthful idealism.

However, for readers of the LAW & POLITICS BOOK REVIEW, the big issues raised by the book are: a) Why Thomas became a radical, if inconsistent, conservative who has abandoned the federal role in regulation coming from the Interstate Commerce Clause; b) How Thomas can condemn affirmative action although he accepted the benefits of such a program earlier in his career; and c) Why he changed his views from radical left to radical right, while still retaining some sensitivities on race that a leftist might share. Foskett chose not to answer these questions directly because he felt that Thomas was still too young to reach conclusions. Instead, this reviewer has tried to connect the dots in the book. Even as I acknowledge that Thomas might indeed change, particularly in his jurisprudence, what seems clear from Foskett’s excellent biography is that Thomas’ temperament is prone to extremism. Even a book that chooses not to examine Thomas’ jurisprudence or to draw links to his basic philosophy has an implicit purpose which is well served: the thick description of an interesting, as well as a vastly important life.

Foskett does not try to psycho-analyze, but instead describes the direct influences on the young Thomas, growing up without a strong parental figure until he and his brother went to live with their grandfather. His ambitions and aspirations were also shared by his grandfather and the poor folks of Pin Point, Georgia. Chief among his formative experiences was the Jim Crow discrimination in Pin Point and the individual responsibility that his grandfather preached. How to cope with such adversity is not an issue for most highly educated Americans, who would find such a description in JUDGING THOMAS to be instructive, even if they have little empathy for Thomas today.

From a psychological perspective, the suppressed anger and occasional angry outbursts during his confirmation process might reflect rebellion against an absent mother who handed him over to his disciplinarian grandfather in his formative years. The book has prompted me to conclude that the contradictions and ambiguity of his thoughts led him to [*346] remain silent, but to act firmly when he feels most confident, reflecting the values of self-reliance, hard work, loyalty and family, tough love and no-excuses. He has the Catholic courage to persist in unpopular convictions at the cost of suffering Christ-like persecution. While he is in apparent denial (or is he?) that he has hypocritically benefited from affirmative action, he also did suffer intense discrimination that barred him from reading in the public library, from attending the better white public schools, even though the schools were not supposed to be segregated, from swimming at certain beaches as a child, that restricted his access to a government that only benefited whites, and blocked his competition for work in Atlanta law firms, among any number of other situations.

His Catholic faith has given him a distinct identity from most African-Americans. His grandfather, Myers Anderson, converted because of the religious influence of a friend, and both he and Thomas held deep resentment against mulatto elites, who considered their dark black complexion and accents as signs of inferiority. As Foskett reports, “despite his business success,” Anderson “was never part of Savannah’s elite class of black business men. . . Indeed, he suffered almost as many insults from elite blacks as from bigoted whites” (p.61). “Thomas deeply resented the condescension (pp.61-62). Yet, Thomas has rarely articulated his hurt feelings for the insults about his dialect and his poverty in Pin Point. This deep-seated resentment against intra-black prejudice, Foskett implies, partly explains why and how he can now distance himself from mainstream black opinion. While Anderson did not benefit from white customers and was a self-made man, albeit with his own entrepreneurial ancestors, Thomas has not see any problem using whatever advantages the white world had to offer him, even if he has remained suspicious of it—ever since members of his seminary in Kansas expressed little sympathy after the Martin Luther King, Jr. assassination. At the same time, Thomas believed that he must work harder and be smarter than anyone else, which he clearly thinks he has done and thus deserves all of his promotions.

Thomas was concerned in his youth with buchra (demon), which was part of the African animist looking for supra-natural solutions (such as being recruited to special parochial schools and colleges, as well as affirmative action promotions in his career?). Thomas admired the poetry of Paul Laurence Dunbar, which seems to justify dissembling as a coping response to the ambiguities and unfairnesses in life (again, such as for affirmative action?). Perhaps, Thomas has thought that he was being compensated for what was denied to his grandfather, who could not take classes at Savannah State College and could not have white customers in his businesses. Thus, Thomas, facing hostility and domination throughout his youth, learned that he should never lie but also never tell the complete truth. Foskett quotes friends who conclude that Thomas apparently does not even like his Supreme Court job. He may understand his ambivalence, but he would never admit it to himself, let alone the world. Yet, he also seems to feel like he has earned the position he has attained.

This reviewer believes that he met [*347] Clarence Thomas in the spring of 1974 in the Yale Law School Library. We spoke for at least a half an hour. What I recall is a young, loquacious individual in painter’s pants and combat boots, the fashion of that time during the US invasion of Cambodia. Thomas was clearly a known-entity to all in the room. He stressed to me, above all else, the “necessity of gaining power,” if you want to achieve something good for society.” Thomas appeared to me then as a leftist of sorts, or an iconoclast, with a disposition to shock, just as Foskett depicts. But he also wanted power and advised this stranger to find a way to attain it in order to make a positive difference in life. It does suggest that Thomas might have been more opportunistic than his jurisprudence would suggest. And, he still remains very committed to fighting civil rights.

Yet, Thomas is as generous with the needy as anyone. Fostkett describes how he helps young students and meets with school children weekly, apparently more often than any other justice. He gives speeches to conservative legal associations and to schools and universities, often those with whom he has a personal connection. Though quiet on the bench, he is loquacious and charismatic with friends and associates. He knows all the Supreme Court employees by name, as well as members of their families and where they attend school. He possibly gives more volunteer time than any Supreme Court justice, particularly with underprivileged black students.

Foskett, a white liberal committed to civil rights, is clearly impressed by Thomas’ virtues. Still, the book begs many questions. Some are factual: There is no discussion of the veracity of Anita Hill’s allegations or her motives. The sourcing of the book is light, which is typical of journalism but still discomfiting. Very few important quotes are cited, including those taken from Thomas’ public speeches. There would be no violation of journalistic ethics if an on-the record Thomas quote were identified in order to place it in proper context. Nor are many facts sourced, including those about any number of historical occurrences, such as stories about Thomas’ ancestors and different versions of contemporary events. The endnotes tend to be drawn from archives but give little indication when and why confidentiality was necessary.

Foskett’s reports of oral history must be accepted on faith, although his reputation for integrity and thoroughness as a reporter is very high indeed. He certainly is no Kitty Kelley or David Brock, but, given the need for more citations to his sources, one might wonder whether he more resembles Seymour Hersch who wrote about My Lai and Abu Grahib, or the discredited biography of JFK. For example, was Myres Anderson, the central figure of Thomas’ youth, really the father of Clarence Thomas’ cousin and aunt? It would have been useful to know whether a source was a member the circle of Thomas allies, including former Supreme Court clerks and former colleagues, or among his critics. One does get the sense, from the lack of any embarrassing information, that few critics were tapped as Foskett sources. Perhaps, that is the only way to obtain reliable information about Thomas, since his critics would infer the worst about him. For example, it would be useful to learn that his silence, while colleagues [*348] aggressively question lawyers during oral arguments, results in part from a stubborn intent not to follow the herd.

The answers to a few of these puzzles can be inferred. A reader can easily deduce that the hours of tedious and silent work for his grandfather in his delivery and farming businesses instilled and reinforced Thomas’ taciturn temperament. The confirmation hearings probably helped to radicalize his subsequent jurisprudence. He felt that his treatment before the Senate committee was unjust, and that the public consideration of the sexual harassment accusation was racially motivated. He rebelled later on in life, not only against racism but also against the repressive order of his domineering grandfather. Yet, while on the Court, Thomas has returned to his Catholicism. He seethes within, even though he can be the life of the party among friends and friendly rivals.

Yet, Thomas’ private persona is much different from the general impression conveyed by his behavior on the Court. In fact, the book shows that he is fiercely independent, which is connected to the upbringing by his grandfather, whose solution to racism was self-reliance. It is also presaged by a number of important incidents in his earlier life, as when his sole voice for a moderate course of action proved the Black Student Union at Holy Cross to be wrong. The radical group issued demands and called for an exodus of all the black students, but Thomas’ more conservative strategy in the end won the desired concessions from the Holy Cross administration. Personal independence and moderate action became the identity that he would project, even as he bristled at racial segregation. He remained a moderate as head of the Equal Employment Opportunity Commission, a reputation he cultivated when considered for a Court of Appeals position and subsequently for the Supreme Court. Yet, it was also at this moment when he began studying great books and interpreting their hidden meanings under the tutelage of his Straussian mentors. Indeed, this seems to be the main puzzle in Thomas’ development not fully described by Foskett, despite his interviews with former teachers and the former law clerks most familiar with his intellectual approach.

Thomas seems to reflect an eclectic combination of influences, from Leo Strauss and conservative Catholicism, to his love-hate relationship with his grandfather. His intellectual mentors, Ken Masugi and John Marini, were both trained by Harry Jaffa, one of the most prominent Strauss students at the University of Chicago and a strong proponent of natural rights theory, which, Foskett tells us, appealed to Thomas’ sense of racial injustice. (A relatively rare error in the book misidentifies his institution, which is the Claremont Graduate Institute). In addition, the book wonderfully describes the many contradictory influences of his family, which might help explain the contradictions in his jurisprudence. One can surmise that Thomas’ intellectual mentors helped him to work through these inconsistencies, by using Socratic reasoning to understand what constitutes wisdom.

The major task of JUDGING THOMAS is, therefore, left to the reader. Although he has issued few statements from the bench, except for that occasional [*349] outburst over racial symbols, which he does not regard as protected speech, Thomas has made his mark on judicial history. This book helps us understand why he sees no inconsistency in his views on natural rights, strict constructionism, textualism, originalism and judicial restraint, in light of his participation in judicially active decisions of the Rehnquist Court, demonstrating that such activism can originate from the right, as well as from the left.

REFERENCES:

For a sympathetic biography:

Thomas, Andrew Peyton. 2001. CLARENCE THOMAS: A BIOGRAPHY. San Francisco,
CA: Encounter Books.

For a very critical appraisal of the originalism of Justices Thomas and Scalia:

Smith, Christopher E., and Joyce A. Baugh. 2000. THE REAL CLARENCE THOMAS: CONFIRMATION VERACITY MEETS PERFORMANCE REALITY. New York: Peter Lang.

For a moderately critical appraisal:

Marcosson, Samuel A. 2002. ORIGINAL SIN: CLARENCE THOMAS AND THE FAILURE OF THE CONSTITUTIONAL CONSERVATIVES. New York: New York University Press.

For a sympathetic appraisal:

Gerber, Scott D. 2002. FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS. New York: New York University Press.

Transcript of “A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication with U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer,” (January 13, 2005), http://www.wcl.american.edu/secle/founders/2005/050113.cfm . An audio version may still be available at:

rtsp://video.c-span.org/archive/sc/sc011305_scalia.rm?mode=compact

CASE REFERENCES:

DESERT PALACE v. COSTA, 539 US 90 (2003).

GOOD NEWS BIBLE CLUB v. MILFORD, 533 US 98 (2001).

GRUTTER v. BOLLINGER, 539 U.S. 982 (2003).

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

PGA TOUR v. MARTIN, 532 US 661 (2001).

ROE v. WADE, 410 US 113 (1973).

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© Copyright 2005 by the author, Henry F. Carey.

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THE LIMITS OF INTERNATIONAL LAW

by Jack L. Goldsmith and Eric A. Posner. New York: Oxford University Press, 2005. 272pp. Cloth. $29.95 / £18.50. ISBN: 0-19-516839-9.

Reviewed by Sanford R. Silverburg, Department of Political Science, Catawba College. Email: ssilver@catawba.edu.

pp.336-339

A rational choice theoretical analysis of international law is presented here as one of the more unique treatments of the age old question of why states obey international law. The book is divided into three parts: the role of custom and international law; treaties as a form of cooperative agreement; and rhetoric and morality in international law. In this slim tome, Jack L. Goldsmith and Eric A. Posner boldly and ambitiously set out to answer a host of traditional questions posed by critics and advocates of international law. More realistically than some, a set of conditions is posed to explain the operation of international law through its connection to international politics, an issue that has prominently emerged recently in print (Reus-Smit 2004; Scott 2004; Boyle 1985; Abbott 1989). At the outset, those unfamiliar with “rat choice,” are given the necessary assumptions to evaluate not only the theory but its application to international law—to wit: 1) the state is the central political actor in the international political system; 2) the primary concern of the state is the outcome of its policies; and perhaps most importantly 3) the state acts in a rational manner to maximize possible gains that can be achieved by implementing any political option.

As the central theme, the single most distinctive character of the book is the employment of rational choice theory as it relates to international law. To be sure, models of bounded rationality emerge from the public administration scholarship of Herbert Simon and follow on the heels of game theory which has been applied to law (Baird, Gertner, and Picker 1994), but now is further embellished to cover the international scene.

Following the outline of a political theory, Goldsmith and Posner, two highly respected law school professors, follow it up with a similar schematic view of international law by introducing the theory with a caveat that is not fully examined—i.e., assuming that two states have “perfect information” about each other’s capabilities and intent, which of course can not be guaranteed or reasonably expected to exist, states conduct their global behavior in their own best interest in accordance with international rules. However, this condition does complicate the difference between logical intent and a rational approach to state behavior, since rational here is outside of the cultural context in which each state operates.

Goldsmith and Posner take as their theoretical orientation the work of Thomas Schelling (1960) with almost no attribution to the far more relevant work of Bruce Bueno de Mesquita and David Lalman (1992). The interest of the authors is primarily in international [*337] law’s ambit but with a noteworthy emphasis on international relations. Custom, as one of the mainstays and sources of international law, is clearly recognized as one of the major factors for state reliance, but the reasons for state compliance may remain deficient to some readers in the work under review. Game theory structures the authors’ analysis, framing the understanding of coincidence of interest, application of coercion, use of cooperation, and coordination of interest-oriented behavior. They take a behavioral approach to explain why states seek to maximize their interest at any given time. Where regularity exists, it is not because of the acceptance of custom but the placement of interest against a state’s capability as opposed to that of competitor states. Case studies are examined to show that states operate, not by adhering to some abstract legal nicety by customary practice, but to maximize expected gain from congruent interests, an argument that will shake norm-oriented legal theorists.

A core discussion emerges with the focus on lex scripta of international law—i.e., treaties. Why codify inter-state relations? Is it the binding factor that offers the illusion of a guarantee? Under the traditional international legal understanding, treaty implementation emerges from what some see as the normative character of law, without which harm can not be characterized as such.

Treaties are, of course, created in two forms: multilateral and bilateral. With regard to the former, Goldsmith and Posner argue that among any collection of states, common agreement is generated first among pairs, which in turn tends to attract others. A third party is always necessary to insure that one party does not defect from an agreement, by insuring compliance or by coordinating the redefinition of mutual interest that leads to the establishment of a new dyadic bond.

States enter into treaty relationships, it is argued, because of the precision imbedded in the negotiation process as well as the rules that are set for the interpretation of the document(s). Compliance with a treaty’s content is based upon the belief that interpretation is based on some benefit that will accrue because other signatories will comply in order to realize perceived a benefit.

Human rights, the next topic tackled, the ultimate normative goal, is often thought of as a post-World War II phenomenon. The authors, however, point to the nineteenth century prohibition of the slave trade as a source development that contradicts that understanding. Splitting hairs, which is of course the trade plied by practicing attorneys, is the institutionalization of human rights protections. Following the theoretical demands of the book’s thesis, there needs to be a compelling state interest in order for multiple states to ratify multilateral treaties. States have an interest in promoting the welfare of their own citizens to provide for domestic tranquility, while interest in people in other states is largely related to economic or security concerns.

When Goldsmith and Posner deal with international trade, they approach the heart of the democratic peace argument, since trade provides states with incentives to engage in peaceful economic interchange for [*338] mutual benefit. Beyond the standard background offering, they discuss the emergence of the GATT system in the creation of a new international economic order in the post-World War II era. An excellent analysis is imbedded here with attention to adjudication of conflicts among signatories, a controversial aspect of the GATT system. Goldsmith and Posner find that states violate stipulations of this multilateral agreement when sanctions are of less value than the benefits that accrue from a violation. The GATT and its dispute resolution procedure have since been replaced by the WTO and its Dispute Settlement Understanding. But the authors conclude that there are grave problems in establishing an empirical method to determine whether this actually represents an improvement. But here also is an open invitation for additional legal and political research.

Part three is devoted to the soft side of law and its enforcement, this time focusing on the relationship to rhetoric and morality. The previous sections present empirical analysis of state compliance with international legal norms and obligations. In this last section, the authors devote their efforts to the normative implications of rational choice, the relationship to the moral character of compliance, and question the utility of an altruistic approach to international legal compliance.

Goldsmith and Posner employ an empirically based template through which the observations are viewed: compliance is based on coincidence, cooperation, or coercion. At the end of their work, they focus on international politics with a glimpse into their theoretical origins in the Peloponnesian War and Thucydides, considered the first realist political theorist. On norm creation, the darlings are E.H. Carr and Reinhold Niebuhr. Their conclusions are clearly understood by political scientists who focus on linkages in foreign policy formulation: rhetoric disguises the raw power behind policy. A startling statement is made that states have no moral obligations to follow international law, but instead engage in interest-seeking behavior, which in the international political context impinges on the legal, when two or more states formalize their desires by negotiating a treaty. What moral obligation exists is based upon consent among states or a state seeking to fulfill its obligations to its citizens for material well-being.

Although Goldsmith and Posner make no claim to “have . . . written a comprehensive treatise” on why states accept – or reject – international law, they are to be commended for their effort to “help” place international legal scholarship “on a more solid foundation” (p.226). The creativity displayed here should now whet the appetite of other legal scholars to approach the international law and politics relationship from the perspective of prospect theory, or pursuing policy on the fear of losing an objective.

REFERENCES:

Abbott, Kenneth W. 1989. “Modern International Relations Theory: A Prospective for International Lawyers.” 14 YALE JOURNAL OF INTERNATIONAL LAW 335-411.

Baird, Douglas G., Robert H. Gertner, and Randal C. Picker. GAME THEORY AND THE LAW. Cambridge, MA: Harvard University Press, 1994. [*339]

Boyle, Francis A. 1985. WORLD POLITICS AND INTERNATIONAL LAW. Durham, NC: Duke University Press.

Bueno de Mesquita, Bruce and David Lalman. 1992. WAR AND REASON: DOMESTIC AND INTERNATIONAL IMPERATIVES. New Haven, CT: Yale University Press.

Reus-Smit, Christian (ed). 2004. THE POLITICS OF INTERNATIONAL LAW. NY: Cambridge University Press.

Schelling, Thomas. 1960. The Strategy of Conflict. Cambridge, MA: Harvard University Press.

Scott, Shirley V. 2004. INTERNATIONAL LAW IN WORLD POLITICS. Boulder, CO: Lynne Rienner Publishers.

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© Copyright 2005 by the author, Sanford R. Silverburg.

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DEFINING CIVIL AND POLICIAL RIGHTS: THE JURISPRUDENCE OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE

by Alex Conte, Scott Davidson and Richard Burchill. Burlington, VT and Aldershot, Haunts: Ashgate Publishing Limited, 2004. 280pp. Hardcover. $114.95 / £60.00. ISBN: 0-7546-2279-7.

Reviewed by Susan C. Breau, Dorset Fellow in Public International Law, British Institute of International and Comparative Law, London, United Kingdom. Email: s.c.breau@biicl.org.

pp.332-335

In his preface, Alex Conte describes the objective of this book: to provide an examination and commentary on the jurisprudence of the United Nations Human Rights Committee. The book more than fulfils this aim. Unlike a usual edited collection of essays, this publication is a coherent examination of the developing case law of the Human Rights Committee organised under main topics in civil and political rights. It is an invaluable tool for teaching and practicing in the field. The book was well utilised recently when the British Institute of International and Comparative Law undertook judicial training in Commonwealth Africa and used a chapter to discuss the extensive obligations encompassed in a fair trial when there is a possibility that the death penalty might be imposed. Although many of the countries in Africa are parties to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), the judiciary suffers from lack of training in human rights issues. This book would be an invaluable tool for domestic Judges universally, who are becoming aware of their international human rights obligations.

The United Nations Human Rights Committee is a quasi-judicial body established to examine complaints against individual nations for violations of their obligations under the ICCPR. Only those counties that have ratified the Optional Protocol to this Convention agree to submit themselves to individual complaints. The authors/editors of this book, Alex Conte, Scott Davidson and Richard Burchill, have included the ratification status as Appendix 3, and as of the time of this review 104 States are parties to the Optional Protocol. The Committee issues “views,” which are really recommendations but are nevertheless influential. A compilation of these views is critical given the large number of participants in the Optional Protocol. Many of these ratifications have taken place since the fall of the Berlin Wall, and the number of views is growing at a rapid rate. The number of decisions is still limited by the short working session of the Human Rights Committee in Geneva. This is in marked contrast to the sophisticated system in operation at the European Court of Human Rights.

Collecting the jurisprudence from the human rights committee is a very difficult task. Unlike the European Court of Human Rights the cases are not easily accessible and collection involves navigating through reports of meetings rather than organised case reports. Yet in their effort, these authors have [*333] achieved the same comprehensive analysis accomplished by Jacobs and White (2002) and Harris, O’Boyle and Warbrick (2001) in their seminal texts on the European Convention on Human Rights and the practice of the European Court of Human Rights. To have a source of recent decisions on the ICCPR is equally essential, and I hope that these gentlemen could be persuaded to update this collection on a regular basis.

The first introductory chapter and the second chapter on procedure are invaluable for the practitioner in the area. These chapters outline the jurisdictional issues, the functions of the Human Rights Committee, and the process of an individual complaint from exhaustion of domestic remedies to the follow-up procedure after the Committee’s views have been issued. For the academic, the chapters discuss difficulties with the jurisprudence including the two main problems. The first is that most of the earlier communications came from a limited number of states, particularly Uruguay and Zaire. The second problem is that the earlier communications concerned gross and widespread human rights abuses, and therefore jurisprudence was limited to areas such as torture, liberty and security of the person, and due process rights. This study reveals that this is no longer the case, with a discussion of a great range of jurisprudence on almost every area of human rights.

After these foundational chapters, the book is divided into the major categories of human rights protected under the ICCPR. The chapters not only review the current case law but rely on the general comments released by the Human Rights Committee for the content of the rights. This is an essential part of the practice of international protection of human rights to review and understand the general comments, as they clarify the content and scope of individual rights. Another essential element of this study is that the authors review the general comments and jurisprudence in terms of elaboration of the content of these respective rights.

The first area expertly discussed by Richard Burchill is self-determination. This is the right which is contained in the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Charter of the United Nations. However, Burchill points out the lack of clarity in the content of self-determination as a justiciable human right. A reason for this is that the Committee has refused to consider rights of a group as a whole and has insisted on individual applications. Therefore, Article 1 on self-determination, is not amenable to the Optional Protocol procedure. In its jurisprudence the Committee has refused to proceed on Article 1 claims unless they are combined with Article 27, rights of minorities. This jurisprudence is expertly analysed. One minor criticism is that this chapter should have been followed directly by Burchill’s chapter on Minority Rights, as the jurisprudence is closely related.

The next chapter on Democratic and Civil Rights by Alex Conte is quite extensive, encompassing several rights under the convention—freedom of movement, freedom of thought, conscience and religion, freedom of assembly and association, recognition as a person before the law, and democracy. [*334] The chapter follows the structure of considering the elements of each right and then any relevant jurisprudence. There is rather scant jurisprudence in these areas, but cases that do apply are thoroughly and critically discussed.

Conte also discusses security of the person. The chapter includes the right to life, the prohibition against torture, degrading treatment and medical experimentation, provisions on deprivation of liberty, and prohibitions of slavery and servitude. The case law is obviously more extensively developed in these areas due to the sad reality of disappearances and torture in many nations.

Conte’s next contribution is on judicial process. This chapter examines the conduct of civil and criminal proceedings in the context of the obligation to provide fair trial guarantees. Conte rightly considers Article 14 of the Covenant to be complex; however, he manages to divide the provision into its component parts and to provide an excellent and detailed exposition of the diverse elements of fair trial guarantees.

Finally, Conte discusses privacy, honour and reputation. The controversial issue in this chapter is recognition of same-sex relationships within the context of privacy. The extensive discussion of TOONEN v. AUSTRALIA is essential, as it is one of the leading cases in the recognition of the rights of same-sex couples to privacy and that their sexual activity should not be criminalised.

The next chapter on equality by Scott Davidson is essential reading, as equality, like self-determination, is a pervasive theme of human rights. A very useful part of this chapter is consideration of what constitutes discrimination, as it is not defined in the ICCPR and is a very difficult concept to pin down. This chapter is also critical of the way the Human Rights Committee distinguishes between direct and indirect discrimination. All three commentators utilise their academic expertise to comment on relevant jurisprudence to great effect.

Richard Burchill discusses minority rights. Article 27 has often been used by various indigenous groups in Finland, Canada, Sweden, and New Zealand, and Burchill analyses the extensive jurisprudence in this area. Again his succinct analysis reveals the difficulties in protecting minorities and the jurisprudential flaws.

The final chapter is on rights of the family and children. Given the private nature of the family, this set of questions has often been neglected in the study of human rights. However, as Burchill reveals, an important body of law is developing that pierces that veil of privacy, especially in the consideration of the right to marry and create a family. Once again, discussion of the JOSLIN v. NEW ZEALAND case is very important, as the Human Rights Committee has not followed developments elsewhere and does not seem prepared to recognise gay marriages.

This book may not be as detailed and comprehensive as Joseph, Schultz and Casten (2000), but it is more easily accessible to both students and lecturers. It will also be of great benefit to domestic judges (such as those in [*335] Commonwealth Africa) who may find their decisions under scrutiny by the Human Rights Committee.

REFERENCES:

Harris, David .J., Michael O’Boyle, and Colin Warbrick. 2001. LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS. London: Buterworths.

Joseph, Sarah, Jenny Schultz, and Melissa Castan. 2000. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: Cases, materials and Commentary.(2nd edition) 2004. New York: Oxford University Press.

Ovey, Clare, and Robin C. A. White. 2002. JACOBS AND WHITE, THE EUROPEAN CONVENTION ON HUMAN RIGHTS (3rd edition). Oxford: Oxford University Press.

CASE REFERENCES:

JOSLIN v. NEW ZEALAND, COMMUNICATION 902/1999, U.N. Doc CCPR/C/75/D/902/1999 (2002).

TOONEN v. AUSTRALIA, COMMUNICATION 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).

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© Copyright 2005 by the author, Susan C. Breau.

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INTELLECTUAL PROPERTY RIGHTS IN EU LAW: FREE MOVEMENT AND COMPETITION LAW (Vol. 1)

by David T Keeling. Oxford: Oxford University Press, Oxford European Community Law Library, 2004. 456pp. Hardback. $135.00 / £75.00. ISBN: 0198259182.

Reviewed by Mark Perry, Faculty of Law, University of Western Ontario. Email: mperry@uwo.ca .

pp.329-331

As one of a series of volumes on the European Union from Oxford University Press, INTELLECTUAL PROPERTY RIGHTS IN EU LAW promises to provide an in-depth analysis of the relationship between intellectual property rights and European Union law. The book examines intellectual property rights within the European Union by focusing on the relationship between such rights and fundamental principles of the Treaty of Rome that established the European Community (much amended and reformulated, and referred to by Keeling and herein as the Treaty), namely non-impedance of trade in goods and services between member states, the avoidance of abusive practices by dominant undertakings, and the distorting competition by restraint of trade agreements. The key problem, nicely illustrated by Keeling through his selection of cases, is the need to balance intellectual property rights, within the sole jurisdiction of member states, with the public interest of those states as members of the European Union as formulated within the Treaty. The analysis in this volume is accomplished by examination of the approach taken by the European Court of Justice, an entity that is constantly required to negotiate the fine balance between giving effect to both the principles and formulation of the Treaty as well as recognising the jurisdictional sovereignty and limitations of the intellectual property laws of member states.

After introducing the work and the basic principles of free movement of goods and services in the European Union, Keeling looks at the inherent conflict between intellectual property rights, designed to constrain the movement of intellectual property and the demands of the European Union. The first six substantial chapters are dedicated to looking at the problem by placing intellectual property within the framework of European Union. For those not familiar with the operation of EU principles, Chapter Two condenses into 17 pages an introduction to four fundamental freedoms of the Treaty—the free movement of goods, persons, services, and capital. This chapter sets the tone for the first three-quarters of the book, with analysis of leading cases that have come before the European Court of Justice. These concepts form the foundation of free trade within the EU and, indeed, were the basis for the formation of the ‘Community’ in the first place. Chapter 3 introduces the primary dichotomy between Treaty and intellectual property protection throughout the community, namely that lack of harmonization can bring unenforceable incongruence in the treatment of goods among neighbouring states, and without border controls there [*330] is little that a member can do. Keeling indicates that the key to minimising this tension must lie not simply in further harmonization of member legislation and individual jurisdictional rights, but rather in the adoption of Community intellectual property rights.

Chapters Four and Five directly address the European Court of Justice’s approach to the dichotomy between allowing these national rights and the problems associated with their exercise in the EU. Indeed, given the lack of harmonisation, let alone a set of overarching community intellectual property laws, it is hard for the Court to avoid engaging in fancy footwork between abdicating control over the grants of exclusive rights to national courts and requiring justification for any restriction on free movements of goods. Chapter Six addresses the problems stemming from the Court’s introduction of the concept of “specific subject-matter” of an intellectual property right, and various criticisms of this approach. These three chapters are narrow in scope and correspondingly short. Chapter Seven is more substantial, dealing with exhaustion of rights, particularly difficult to normalise within the European Union given the very different approaches of some member nations.

The first seven chapters consume but one-third of the book, addressing particular issues introduced by Treaty free movement provisions. In the next three chapters Keeling looks at the core areas of intellectual property – trademark, patent and copyright – and again focuses on the treatment of cases at the hands of the European Court of Justice.

Chapter 11, the final chapter, takes up one-quarter of the book, focusing on the application of Articles 81 and 82 of the Treaty that, in short, prohibit agreements between undertakings that restrict competition and abuse of market power. As with free movement stipulations, these terms often clash with national intellectual property rights, which, although not dependant on agreements concerning particular activities, amount to monopoly rights. This long single chapter is broken into four major subsections, an introduction, a short section on the prohibition of anti-competitive collusion under the Treaty, one on the relationship between such agreements and intellectual property, and one on Treaty prohibition of abuse of market power.

My main criticism of the book is in its organisation into some very short chapters in the beginning, then the major Chapter 11 that has sub-sub-sub-parts, such as “3.5.4.5 Non-territorial restraints under the Regulation” (p.337), which is almost double the length of Chapter Three. Many of the themes discussed in the earlier chapters could have been integrated into those on specific intellectual property rights. However, having only the three distinct chapters on Trademark, Patent, and Copyright is taking a limited view of intellectual property. The omission of deep discussion of trade secrets, confidential information, passing off, integrated circuit protection, designs (although several design cases do appear in the earlier chapters), plant protection or other rights within the ambit of intellectual property, is strange, and again is the result of choices made in the organisation of chapters and their content. For example, the EU [*331] Commission has be moving to harmonise some of these issues, such as Community Plant Variety Rights, but plant breeder rights are noted to be a “more esoteric species of intellectual property” (p327), and discussion comes within a section on patent licensing. Consideration of criticisms of treating software as a literary work are placed in the competition section of the book (p.363). Admittedly this classification of software is strange, but this is now fait-accompli with TRIPS requiring protection for computer programs, and discussion of this aspect would have been better served within the copyright chapter.

These criticisms aside, this is a high-quality work. Though tempting, it would be unfair to compare in detail INTELLECTUAL PROPERTY RIGHTS IN EU LAW with Tritton’s INTELLECTUAL PROPERTY IN EUROPE (2002). The latter is a much longer, costlier, reference tome that is to be dipped into as required, whereas Keeling’s book is a highly readable work with a subtle sense of humour that can be read from cover to cover. It is written in a lilting and comfortable style. Keeling gives insight into the European Court of Justice and how it manages to operate in the intellectual property domain that, from its jurisprudential basis in culture, science and consumer protection, has been an antithesis to cross-border cooperation. A second volume promised from Keeling is to deal with the steady progression towards legislative harmonization of intellectual property rights throughout the European Union. This will be a welcome and necessary companion to the first part reviewed here, as otherwise one is left with only half the story having been told. It is hoped that this will have a more political perspective to balance view of the European Court of Justice in INTELLECTUAL PROPERTY RIGHTS IN EU LAW. Indeed, intellectual property is a ‘very fine thing.’

REFERENCE:

Tritton, Guy. 2002. INTELLECTUAL PROPERTY IN EUROPE. London: Sweet & Maxwell.

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© Copyright 2005 by the author, Mark Perry.

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DEFENDING THE RIGHT TO A HOME: THE POWER OF ANTI-POVERTY LAWYERS

by Beth Harris. Burlington, VT: Ashgate 2004. 246pp. Hardcover. $99.95 / £50.00. ISBN 0-7546-2390-4.

Reviewed by Mark Kessler, Department of Political Science, Bates College. Email: mkessler@bates.edu

pp.325-328

In this useful and engaging book, Beth Harris examines the power of poverty lawyers to employ law and courts successfully to improve the material conditions of the homeless. Harris reports the results of five case studies of class action litigation brought by federally funded legal services lawyers on behalf of homeless families. We learn in this study about the legal claims made by attorneys in these class action lawsuits, legal actions that played a major role in a concerted, yet ultimately unsuccessful, campaign to establish a right to adequate housing. And, as important, we learn about some of the socio-political factors that distinguish the more successful suits from those that achieve less for people living on the social, political, and economic margins.

Three class action lawsuits initiated and led by legal services lawyers in California, Chicago, and New York City form the core of the study’s analysis. Two additional lawsuits, brought by lawyers working with coalitions of advocacy organizations focused on issues of homelessness, are used to explore related analytical questions. In general, the case studies are richly detailed, substantively interesting, and skillfully employed to explore the conditions under which poverty attorneys gain benefits for their clients. Placing her case studies in the context of Mark Galanter’s (1974) influential framework, Harris explores the extent to which, and the circumstances under which, legal services lawyers permit their clients to act as “repeat players” in courts, winning tangible benefits and redistributing resources in ways that challenge the notion that only the “haves come out ahead.”

To answer these questions, Harris uses a “political process” model, following the class action lawsuits through time and through several separate policymaking stages. At each stage Harris interprets the impact of legal action by assessing interactions between a variety of external conditions and what she terms “strategic choices” by significant decision makers. She summarizes the overall approach as follows: “The dynamics of policy reform are created over time and cannot be captured by focusing on a single historical moment. At each stage of the policymaking process, the legal advocates and their adversaries reassess both intended and unintended consequences of previous decisions. An explanation of this process requires a dynamic longitudinal study. My interpretive approach constructs a narrative or sequential story; that of the interaction between contextual factors and strategic choices throughout the policymaking process” (p.15).In constructing the five sequential narratives, Harris employs various documents, including legal briefs, court [*326] decisions, and official government reports, along with interview responses from ten to twenty people involved in each class action. Interviewees included legal services lawyers, lawyers for state agencies, state administrators involved in housing, and others involved at the national level with the issues of housing and homelessness.

Harris applies the political process model to the five case studies to address conclusions drawn by other socio-legal scholars that law and lawyers either are uniformly ineffective and powerless in producing change, or, alternatively, are always effective and powerful. Although the limited sample of cases makes it difficult to draw firm and definitive conclusions, Harris’ research is quite suggestive. She derives the maximum analytical insight from these case studies regarding the conditions under which litigation produces desired benefits. The research and analysis shows, among other things, that legal claims draw on established legal conventions and categories, that judicial mandates are often influenced by these claims and that the resulting decisions are then taken seriously by administrative agencies, and that the goal of effective implementation of such mandates is furthered by requiring judicial monitoring, a requirement that creates space for poverty lawyers to reinsert themselves and their clients into housing issues. Harris’ study, looked at in conjunction with other uses of the political process model, such as McCann’s (1994) work on comparable worth, shows the utility of employing detailed historical case studies to identify factors associated with both successful and unsuccessful attempts at legal reform and social change in courts. These case studies also demonstrate both the direct and indirect effects of law and legal decisions, focusing attention in some instances on how law and legal directives may act as resources that may be employed in political struggles in what Stuart Scheingold (1974) calls a “politics of rights.” Looking across her case studies, Harris concludes: “The anti-poverty lawyers did not achieve a right to housing in the United States, but they did create leverage for policy reforms that did not seem feasible in the current political environment” (p.vii).

In general, then, this book is a solid empirical study of how poverty lawyers at one moment in history were able to produce, under certain specified conditions, some tangible benefits for poor people in need of basic housing. Beth Harris highlights an extremely important policy area, applies an established theoretical framework well and with insight, and provides important practical advice to public interest legal practitioners and activists about contingencies to consider carefully when pursuing social and political change.

Harris’ focus on the five class action lawsuits as case studies and her comparative research design allow her to present a compelling case regarding some of the most significant factors explaining the relative impact of class action litigation and the legal decisions they produce. But these choices make it difficult for her to do more than speculate when drawing conclusions about the “power” of poverty lawyers, another of her interests in this book. Conclusions about the political and legal effectiveness of poverty lawyers in any general sense must be quite tentatively drawn because this study examines only [*327] a small and rare group of class action suits brought by a very small group of law reform oriented legal services lawyers who work in central program offices and support centers. As Harris recognizes, these lawyers are not and never were engaged in the typical kinds of legal representation that took place in the national legal services program, a program emphasizing from its origins the need for community lawyers located in neighborhood offices to work closely with individuals in those neighborhoods. Class action litigation and law reform efforts more generally could develop naturally from client intake and individual casework taking place in neighborhoods. But bringing class action lawsuits was never among the typical strategies employed by poverty lawyers, and such strategies were expressly prohibited by Congress in the mid-1990s. Thus, the focus on such rare cases brought by atypical poverty attorneys, and the use of these cases to understand more fully the conditions under which law is effective in specific cases, makes it difficult to incorporate in an overall assessment of the “power” of poverty lawyers such things as the political environment surrounding the state provision of legal services to the poor, the fact that such lawyers operate in a society stratified by class, and how such stratification may stack the deck against the poor and their federally funded legal advocates, at least in the long term. The cases upon which Harris relies to draw conclusions about the impact of law and the power of poverty lawyers represent precisely the types of cases that powerful political opponents used to argue successfully against further funding or for more limited funding for programs employing attorneys who were often misleadingly called “ideological ambulance chasers.” These arguments were routinely offered by program critics, regardless of the fact that most legal services lawyers never brought or were in any way involved in class action litigation, but rather engaged in the more typical neighborhood law office activities, representing low-income individuals with ordinary and relatively mundane legal problems.

Harris briefly considers but ultimately dismisses arguments in recent critical work on public interest lawyers (e.g., Buchanan and Trubek, 1992) suggesting that legal professionalism and the specialized language associated with it reinforce unequal power relations between lawyer and client, disempowering clients and undermining attempts at self-determination. She is skeptical of suggestions in this literature that resources for legal representation be reinvested in efforts at more effective community organization. Drawing on theoretical work by Pierre Bourdieu (1987), Harris argues that “the power of poverty lawyers is primarily rooted in their professional status within the legal field. Anti-poverty lawyers continue to have symbolic capital to counter the dominant discourses that exile those who are poor and politically disfavored from legal protections; to expose the harms caused by neoliberal reforms as violations of fundamental rights, and to mobilize institutional resources, including reform litigation, for triage to protect those who are most vulnerable” (p.149).

While the poverty lawyers who initiated the class actions in this study may have been able to use, under certain circumstances, their professional status as symbolic capital, class actions as a [*328] litigation strategy were essentially banned from this program and federal funding was restricted when those with more power felt threatened. Without working to build community organizations and self-determination, poor people are left with little, less, or nothing—smaller numbers of lawyers, no organizational structures, no skills developed to advocate for themselves—when the state cuts funding and removes litigating authority. And the relatively subordinate political position of people living in poverty makes certain that the state will indeed take away resources and legal options when it appears that lawyers for the poor may be assisting them in achieving status as “repeat players.” Thus, considering the place of federally funded legal services in the political economy of the society in which it is created complicates an assessment of the “power” that its lawyers actually possess. Such an assessment is crucial, however, and is furthered by the stimulating analyses contained in this book.

REFERENCES:

Bourdieu, Pierre. 1987. “The Force of Law: Toward a Sociology of the Juridical Field.” 38 HASTINGS LAW JOURNAL 805-853.

Buchanan, Ruth and Louise G. Trubek. 1992. “Resistances and Possibilities: A Critical and Practical Look at Public Interest Lawyering.” 19 REVIEW OF LAW AND SOCIAL CHANGE 687-719.

Galanter, Mark. 1974. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” 9 LAW AND SOCIETY REVIEW 95-160.

McCann, Michael. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.

Scheingold, Stuart. 1974. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE. New Haven: Yale University Press.

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© Copyright 2005 by the author, Mark Kessler.

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FROM UI TO EI: WAGING WAR ON THE WELFARE STATE

by Georges Campeau (translated by Richard Howard). Vancouver: University of British Columbia Press, 2004. 256pp. Cloth. CDN$103.93 / US$85.00 / £56.50. ISBN: 0-7748-1122-6.

Reviewed by Jerold Waltman, Department of Political Science, Baylor University. Email: Jerold_Waltman@baylor.edu .

pp.322-324

Unemployment insurance (UI) was first developed by European trade unions. Members would pay into a fund while working. Then, those who suffered spells of unemployment could draw benefits until they again found work. Later, governments set up public systems funded by compulsory levies and administered by government officials, one of the most comprehensive of which was that adopted by the United Kingdom in 1911. The United States created its system in 1935, and Canada theirs in 1940. During the debates leading up to these latter enactments, Keynesian notions of seeking methods to cushion a decline in purchasing during the early days of a recession were wedded to the desirability of easing the burden of unemployment on the individual worker. Georges Campeau, an attorney representing claimants for unemployment benefits turned law professor, has written a detailed and thorough history of the adoption and development of Canada’s UI system.

When any government decides to establish a system of UI, a host of technical problems must be addressed, along with a deep policy question. Among the former are how long one must work before being eligible for benefits, how the benefits will be calculated, how long benefits will last, whether dismissal for cause disqualifies a claimant, whether “voluntary” unemployment voids eligibility, who is to pay the levies (employees or employers), whether government should contribute to the fund from general tax revenues, whether job exchanges are to be attached to the administrative structure, whether declining a job (and what type of job) can lead to termination of benefits, who shall make the eligibility determinations, and how appeal mechanisms will be ordered. More fundamentally, though, there are two differing, and incompatible, philosophies underlying any UI system. On the one hand, there is the “insurance” (or actuarial) approach that takes its cues from private insurance. In this view, with its analogy to private insurance, maintaining the integrity of the fund is of paramount concern. On the other, the “welfare” model sees UI as a way to redistribute moneys from the prosperous to the less fortunate. Making the benefits adequate and keeping eligibility broad are therefore the major issues that need to be addressed.

The role of bias, or more genteelly perspective, in the writing of history has two dimensions. There is, first, the degree of fusion between the bias and the narrative. This can take one of four forms. The first is the invariably dull and arid attempt to be totally objective. The second involves acknowledging [*323] one’s bias but keeping the focus mostly on the analysis. A third is working from the perspective and letting it consciously interact with and inform the analysis. The final form is exemplified when the bias overwhelms the analysis. The third, which is often where the most interesting historical work lies, is on display a good bit in this book; however, Campeau too often puts one foot over the line with the fourth category. The second dimension is the intellectual defensibility of the bias. More on this momentarily.

Campeau does an excellent job of tracing the politics of the pioneering British act and the development of agitation for UI in Canada. His portrayal of the depression in Canada and the subsequent politics leading up to the 1940 act are also admirable. He gives due attention to how the struggle between advocates of the insurance and welfare models played out, and the compromises that resulted. Additionally, he ably and clearly analyzes the constitutional issue (whether UI was a federal or provincial responsibility), a matter non-Canadians could find confusing. Finally, he sets out the details of the early court decisions that gave life to the act in a readable and commendable fashion.

Canada’s UI system remained basically intact until 1971, when a major reform was enacted. Spurred on by economic good times and a growing welfare consciousness, Parliament extended the generosity of the system on several fronts. More workers were brought into the system; benefits were increased and periods of eligibility were lengthened; demands to re-enter the workforce were loosened. Simultaneously, the government took more responsibility for managing the macro-economy to create full employment. Taken together, these policies represented an effort to use the UI system to mildly redistribute income while simultaneously providing an income floor under the unemployed. In other words, UI moved decidedly closer to the welfare model. To Campeau, this represents the system as it should be.

Later chapter titles belie what is to come: “The System Hijacked” and “Onward to EI.” He discusses the flowering of neoliberal ideology and the implications it carries for UI. Two limited sets of “reforms” were enacted in 1990 and 1993, but the real marker was the Employment Insurance Act of 1996. This law consciously moved the entire UI system toward what are called “active” labor market policies. This approach involves adopting policies that actively encourage people to get a job, any job, and keep it. It also makes the responsibility for finding a job rest more squarely on the individual. At the same time, it reduces the government’s commitment to job creation, preferring to look to the unregulated market to perform its alleged magic. A variety of changes were ushered in in 1996 to accomplish these goals. This re-emphasis on market solutions to unemployment was accompanied by a tightening of administrative procedures to attack fraud and abuse. All these initiatives are spelled out in detail.

Evaluating these policies in an even-handed manner would be difficult in the best of circumstances. Campeau, though, makes no such attempt. He is at his shrillest in these chapters, castigating the backers of such policies as “actuarial ideologues.” He notes acidly that the result has been that more and more [*324] people have had to resort to welfare. But he does not acknowledge that under his preferred model the distinction between welfare payments and UI benefits is blurred if not invisible. Furthermore, he simply refuses to believe that there are any cases of fraud; but, if there were, it was not the fault of the perpetrators. For example, the new law contained a provision that if you are a repeat offender for fraud within a five year period, you have to repay your benefits and your qualifying working hours are increased from 420 to 840. According to Campeau, “These were outrageous penalties for offences that in so many cases stemmed from the survival instinct. As in the glory days of classical liberalism, pauperization and repression went hand in hand” (p.155).

Without question, some of the new policies were indeed unduly punitive, but some were legitimate. By painting with too broad a brush, by lumping all the changes together and attributing them to little more than vindictiveness, Campeau tends to erode his credibility. What he wants is a return to 1971.

The world of work has changed in Canada as in other advanced industrial societies. Formerly, we had a largely full-time, male breadwinner workforce and unemployment was most often suffered by blue collar workers in heavy industries when the economy went into recession. UI was designed with these factors in mind. Today, the work world is radically different—a concentration of service industries, two-earner households, many part-time workers, a good bit of “voluntary” unemployment, white collar layoffs, and so forth. The policies of the previous era need redesigning to account for these altered realities. Neoliberalism, no matter how dressed up, though, has an ugly face when it comes to the unemployed and the less well off generally. However, those who, like Campeau, oppose it by merely reciting the old shibboleths and arguing for a return to more of yesterday’s policies unintentionally play into the hands of the neoliberals. What is required is to begin anew with the rationales behind policies like UI and then develop updated versions of them.

For the wealth of information it ably presents, this book merits attention by those interested in either Canadian politics or the welfare state. However, it will not be a serious contribution to the debate over the future of the welfare state.

A final note: The translation from the French was laudably smooth and clear. The only exception was an annoyingly repetitive use of “lawmaker” when “government” or “state” would have served equally well.

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© Copyright 2005 by the author, Jerold Waltman.

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JUDGES IN CONTEMPORARY DEMOCRACY: AN INTERNATIONAL CONVERSATION

by Robert Badinter and Stephen Breyer (eds). New York: New York University Press, 2004. 352pp. Cloth $55.00. ISBN: 0-8147-9926-4.

Reviewed by Sally J. Kenney, Humphrey Institute of Public Affairs, University of Minnesota. Email: skenney@hhh.umn.edu.

pp.319-321

In the summer of 2000, five distinguished judges met with legal philosopher Ronald Dworkin in Provence, France, to discuss the role of the judge. Robert Badinter, former president of the Constitutional Council in France, Stephen Breyer, Justice of the Supreme Court of the United States, Antonio Cassese, the first president of the International Tribunal for the former Yugoslavia, Dieter Grimm, former vice president of the Constitutional Court of Germany, Gil Carlos Rodriguez, president of the Court of Justice of the European Union, and Ronald Dworkin, professor of philosophy and law at the New York University Law School, each presented a paper that the others then discussed The volume includes their papers, their summaries for the discussion, and an edited transcript of the three to four hour discussion of each topic. The six topics are judicial activism, the secular papacy, supervision of the political process, international criminal justice, justice and the media, and the judge confronts himself [sic] as a judge. The unifying theme is the globalization of constitutional law.

The volume begins with a quotation from Michael Oakeshott: “learning is not a race in which the competitors jockey for the best place, it is not even an argument or a symposium; it is a conversation” (p.v). Like a conversation, the transcripts have a breezy feel of topics landed on rather than arguments sustained. The volume, however, is somehow betwixt and between. The summaries duplicate the introductory papers and feel repetitive. And although the comments are presented serially, the experience of reading, however easy and enjoyable, does not really feel like a conversation. First, the element of listening to someone speak at a conference or seminar is missing, since we miss the nuances and emphases of the spoken word. Second, one really does not get much sense of the back and forth, interruption or contradiction that makes such conversations interesting events. The few issues on which the like-minded discussants disagree, such as whether hate speech merits constitutional protection, are respectfully raised rather than intensively debated. And some of the entries are so long as to conjure up images of the endless three-hour graduate seminar monologue.

Who is the audience for this book? The format suggests that one has been invited into a special, high-level conversation where we can glimpse the uncensored conversation of thoughtful and seasoned jurists. The promise of a glimpse behind the curtain is not fulfilled (the closest one comes is reading the insightful chapter on international criminal justice). As one might expect of experienced judges, their words are [*320] carefully chosen and no confidences shared in their tape-recorded sessions. As one who is interested in a comparative analysis of the judicialization of politics, I enjoyed reading the book. Again, however, I found the volume a little betwixt and between. On the areas I knew the most about—the European Court of Justice and the U.S. Supreme Court—I wanted the discussants to delve deeper. When it came to the area I knew least—the International Court of Justice—I felt as though I needed more information to understand the conversation fully. Moreover, I sensed that some of the participants felt the same way, particularly Justice Breyer and Professor Dworkin when it came to the non-U.S. examples, and the others when Dworkin was drawing on examples from the U.S. experience. While it may be true that none of us knows enough about each of the courts in question to participate fully in a conversation, the enterprise of linking them conceptually is a significant contribution. What, for want of a better expression, the editors call globalization has rendered some of the traditional divisions in law and political science—international, comparative, constitutional law, and human rights—divisions in scholarship that are no longer productive. I applaud the editors for, in effect, saying “Let the conversation begin.”

Alas, I am still stuck in my own silo, and therefore found the comments of President Rodriguez to be the most interesting. I suspect other scholars will skim and flip through to find the courts, persons, or subjects that interest them most rather than engaging the whole project as we hope a new generation of comparative legal scholars will do. Will those only interested in the U.S. Supreme Court find enough background to benefit? I suspect not.

Scholars who have already had a steady dose of Dworkin will find much familiar in his remarks. It does, however, make for interesting reading to watch him confront the contradictions in how judges talk about their work. The conversation might have been yet more interesting if the judges were “off the record,” or if they argued with the professor more.

Whether the book has wider appeal to the public or to judges themselves, I leave to the marketing people of New York University Press. Surely the editors names guarantee that libraries will purchase the volume. But what about students? Would the book be a useful supplement in a class on comparative law? I cannot decide. I read the book as I was teaching a new course in law and public policy for M.P.P. students and found it to be provocative. Clearly, the participants take up the central themes of my course: what is the role of the judiciary in a democracy? Should we expand international law? What should the role be of judges in refereeing the political process? Unfortunately, the conversation occurred before BUSH v. GORE shifted the landscape on the latter question and the election of Bush ended U.S. support for an International Criminal Court. I would probably assign the entire book only for a course on comparative constitutionalism or the judiciary, and I would listen carefully to the feedback from the students. I suspect it would be more effective to assign the scholarly writings of any one of these thinkers individually, containing [*321] a sustained argument, evidence, and examples that were fully referenced. I would, however, consider using a particular chapter in a course—the secular papacy, the political process (Breyer’s paper), or international criminal justice, depending on the course.

I enjoyed the discussion of judicial activism, no doubt because the participants all agree with my position rejecting the idea of judicial imperialism and seeing the concept of judicial activism as largely unintelligible—Dworkin calls it “spongy” (p.60). (The many vocal critics who think otherwise were not in Paris that spring.) The commentators are thoughtful about how elected officials characterize them and understand the rise of unchecked centralized power and experience with totalitarianism as catalysts for judicial power, as Mauro Capelletti did years ago. They recognize the dangers to democracy of judicial power as they recognize the shortcomings of current democracies as well as the public’s desire to give increased power to judges. They reject legal formalism but are clearly thoughtful about the justification and legitimacy of judicial power. They see the virtues of “the arena of principle.” Cassese makes a passionate case for international criminal law, despite its shortcomings, and clearly understands the complex politics involved. They speak with trepidation about judges’ grandstanding to the media. They worry about the expansion of judicial power.

Predictably, as one who studies gender and judging, I must comment on the composition of the all-male group. Women judges serve on all of these courts now; even the House of Lords in Britain has a female member, Lady Brenda Hale. The editors do not tell us how this group came to be chosen or assembled, other than it resulted from a chance meeting of friends in “Paris in the spring” of 1999.

I must say, I find it tiresome in 2005 to have to be complaining about gender exclusive language. Badinter refers to “men of my age” (p.9) as if the importance of courts in keeping the peace in Western Europe has escaped the notice of women. He dubs a public servant a “public man” (p.173) while drawing our attention to the semantic distinction between judges and prosecutors. Men are those capable of justice (p.186). Only a he can will the means (p.249). Judges are always he (pp.11, 275), except for the enlightened Dworkin (p.87), and sometimes “fellows” (pp.152, 210). Referring to the judiciary as the “secular papacy” does not anticipate the selection of a woman pope. Too bad the many women thanked for their work producing the book, or Dworkin, did not catch the language. But I suppose that is still how the participants talk and, I fear, think.

JUDGES IN CONTEMPORARY DEMOCRACY is an unusual book for this list, as it is a conversation rather than a scholarly argument. Nevertheless, the speakers and the topics will interest many subscribers.

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© Copyright 2005 by the author, Sally J. Kenney.

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LIBERTY FOR LATIN AMERICA: HOW TO UNDO FIVE HUNDRED YEARS OF STATE OPPRESSION

by Alvaro Vargas Llosa. New York: Farrar, Strauss and Giroux, 2005. 288pp. Hardcover. $25.00. ISBN: 0-374-18574-3.

Reviewed by Matthew M. Taylor, Department of Government, Georgetown University. Email: taylormm@georgetown.edu

pp.295-298

As the title suggests, this is an ambitious book, seeking ways to “undo five hundred years of state oppression” in a region marked by substantial historical, economic, social, demographic, and political differences. It is a tribute to Vargas Llosa’s talent as a writer that he is able to take on such a lofty project, and indeed, to sustain it throughout with a strong narrative and a crystal clear message. The result is a text that is journalistic in tone, with many interesting bits of data used to bolster the author’s overall argument that the solution to Latin America’s problems is greater market freedom. The book is argumentative, and as a result, despite the broad canvas of Latin American history it paints, it should be judged as a provocative thought piece rather than as a classroom text or as a background reference for someone unacquainted with the region.

Vargas Llosa was one of the co-authors of the GUIDE TO THE PERFECT LATIN AMERICAN IDIOT, the polemical critique of the Latin American Left first published in 1996. As one might anticipate from the strongly voiced opinions in that book, LIBERTY FOR LATIN AMERICA also has a strong point of view, although it is a response to the perceived failures of neoliberalism, rather than those of nationalist-statism.

The outline of Vargas Llosa’s argument is simple. To understand the failure of neoliberalism, Vargas Llosa goes back five centuries to the roots of historical oppression, tracing their persistence from pre-Columbian times through the present. In this quick, panoramic overview of Latin America’s post-colonial history, Vargas Llosa diagnoses the region’s woes as the outcome of five “principles of oppression”: corporatism, state mercantilism, privilege, wealth transfer, and political law. The definitions of these terms are quite quickly hewn, and even somewhat flexibly applied, perhaps so as to enable the author to generalize their existence and their permanence across five centuries and the more than 20-odd countries that are part of continental Latin America (or the 30-odd countries that make up the Americas outside of the U.S. and Canada).

In Vargas Llosa’s view, Latin America is caught in a perpetual trap. Even at its moments of greatest change, such as in the efforts to throw off the mantle of the oppressive 19th century state, change is rewarded with continuity: “the paradoxical result of the insurgence against tradition is the perseverance of tradition” (p.34). Because of the stubborn persistence of corporatism, state mercantilism, privilege, wealth transfer, and political law, development is almost unattainable; the outward [*296] trappings of development – such as investment, production, and growth – obscure the deeper permanence of power structures within society.

It need not have been that way, according to Vargas Llosa. There is a liberal, capitalist tradition in Latin America: trade was important in the pre-Columbian empires; an individualist streak was evident as early as the 16th Century in the School of Salamanca; the independence movement of the 19th Century was partly driven by demands for free trade and lower taxes; and a strong, if ultimately unsuccessful, culture of capitalism existed in Argentina during the latter part of the nineteenth century. Even today, the existence of a large informal economy is a sign of capitalist spirit, but one that is checked: “despite ritual gestures in favor of the informal economy . . . the legal country continues to exclude the other by imposing barrier after barrier against entry” (p.116). The larger problem with the informal economy is that its existence highlights the fact that the “contract society” has remained in the hands of a few powerful people.

A second major problem with the capitalism of Latin America is the emphasis given to results over process. By focusing on trade, investment, and access to capital as outward indicators of development, governments have ignored the fact that these indicators were not in fact precursors of development in Western Europe and North America, but instead the outcome of development. High growth under some Latin American dictatorships led to statistical improvements, but did not lead to development, and in fact may have “consolidated, not attenuated, traditional flaws”(p.136). In other words, no matter how well the numbers reflect changing economic conditions, they do not correctly reflect the underlying structure of society and its amenability to true capitalism.

Ultimately, the greatest contribution of this book comes from its diagnosis of Latin America’s problems, especially the manner in which it seeks to bridge institutional and cultural explanations of Latin America’s predicament. Yet because of its impressive breadth, political scientists and legal scholars may find it lacks the depth and complexity of many of the works Vargas Llosa draws on critically, including De Soto on property rights, Wiarda on corporatism, Karst and Rosenn on Latin legal systems, or Fukuyama on trust. The discussion of culture seems especially underdeveloped: while Vargas Llosa is at his best describing the origins and failures of positivism in Latin America, his discussion of the “capitalist spirit” seems almost romantic, as in the repeated reference to failed attempts by Latin Americans to “carve a little star in the thick night of oppression.” It is unclear why the various attempts are failures, other than by reference to the strength of the five forces of oppression. This is a book aimed at a non-academic audience, with no pretensions at historical or analytical comprehensiveness, but the vast generalizations beg for better or more specific examples, perhaps in a second tome.

In light of the strong opinions Vargas Llosa is trying to communicate to his reader, the symptoms of contemporary malaise in Latin America are perhaps understandably overwrought, or at the [*297] very least, over-generalized. Many of his insights seem to be drawn from the Andean region, and particularly, from the author’s native Peru, which indeed saw some of the largest economic and political failures of the past decade. But in trying to extend these arguments to Latin America’s largest economies – such as Argentina, Brazil, and Mexico – Vargas Llosa over-reaches and ignores the positive news that at the very least these countries have managed to preserve procedural democracy despite catastrophic economic crises, and have found ways – however slow or lackluster – to stabilize and reform their institutions over the two decades since the transition to democracy. Although it is not the subject of his book, the many mentions of Iberian culture as a root source of oppression also lead one to wonder about Vargas Llosa’s curious silence regarding post-Franco Spain, where dynamic growth and political stability offer an example that surpasses that of post-Allende Chile, whose experience he often favorably contrasts with the experiences of the rest of the continent.

While one can disagree with Vargas Llosa’s diagnosis, it is nonetheless ambitious and thought-provoking. The litany of policy prescriptions in the concluding chapter, however, is disappointingly unrefined in light of the tremendous effort that has gone into the preceding nine chapters. The author concludes correctly that “development cannot be decreed or legislated” (p.207), but then goes on to argue that the first mission of reformers should be cleansing the law: literally filtering through the whole body of laws and norms to “make sure that no law or norm contradicts what people do in real life” (p.209). Who is to do this filtering, or how they are to be empowered, is unclear. This makes it unlikely that “the process will set the individual free,” as Vargas Llosa claims (p.209), especially if power is indeed as self-perpetuating as earlier chapters claimed. It brings to mind the classic problem identified by Hammergren (1998) of creating an apolitical judiciary in a politically motivated reform, but offers no roadmap to resolving that dilemma.

The prescriptions regarding the “empowerment of the justice system” will be of most interest to the readers of the LAW & POLITICS BOOK REVIEW. Vargas Llosa claims that “[i]n Latin America, there is no justice system. There is an authoritarian political system and the courts are its instruments” (p.212). To resolve the problem he diagnoses, Vargas Llosa argues that the law should be displaced from the political sphere, and the justice system should be turned into one that “will adjudicate disputes based on those principles of law that, divorced from the political system, have become inalienable guarantees of the liberty of the people” (p.213). This prescription ignores the evidence of the political influence of the courts in many of Latin America’s new democracies (e.g., Arantes 1997), or even the signs of the courts’ contribution to democracy in the region. But it also seems to be a troublesome recommendation in light of the vast literature on the judicialization of politics even in more “developed” countries (Tate and Vallinder 1995), and the enormous difficulty of separating the legal from the political. Undoubtedly, judicial reform is a component of development: that much has been clear since long before the remarkable [*298] self-immolation of the law and development school three decades ago (Trubek and Galanter 1974). But the path to judicial reform, or even the content of such a reform – aside from a comment that the “common law is a much better tradition than legal codes” – is entirely lacking in Vargas Llosa’s prescriptions.

This reliance on mantra over concrete policy recommendations is even more pronounced in the remainder of the conclusions, which argue for a transition from “the dependency culture to the culture of responsibility” (p.218). Despite the apparent failure of neoliberal reform noted by Vargas Llosa earlier in the book, his key prescription appears to be even more stringent neoliberalism: getting the government out of social services, including education and health care, lowering taxation, and reducing support to organized labor. In short, “everything that does not involve national defense, law enforcement, and the administration of justice easily falls under the rubric of predation” (p.215) and should presumably be stricken from the list of government responsibilities. But even if one buys this argument, there is no roadmap to be followed, and more importantly, no outline of the potential pitfalls, whether from the lessons of pension liberalization in Chile or the administrative performance reforms of New Zealand. In sum, LIBERTY FOR LATIN AMERICA is a provocative but ultimately frustrating call to action.

REFERENCES:

Arantes, Rogério Bastos. 1997. JUDICIÁRIO E POLÍTICA NO BRASIL. [The Judiciary and Politics in Brazil]. São Paulo: IDESP.

Hammergren, Linn A. 1998. THE POLITICS OF JUSTICE AND JUSTICE REFORM IN LATIN AMERICA: THE PERUVIAN CASE IN COMPARATIVE PERSPECTIVE. Boulder, Colorado: Westview Press.

Tate, C. Neal and Torbjörn Vallinder. 1995. “The Global Expansion of Judicial Power: The Judicialization of Politics,” in THE GLOBAL EXPANSION OF JUDICIAL POWER, C. Neal Tate and Torbjörn Vallinder (eds). New York: New York University Press.

Trubek, David M. and Marc Galanter. 1974. “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States.” 4 WISCONSIN LAW REVIEW 1062-102.

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© Copyright 2005 by the author, Matthew M. Taylor.

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THE HATEFUL AND THE OBSCENE: STUDIES IN THE LIMITS OF FREE EXPRESSION

by L.W. Sumner. Toronto: University of Toronto Press, 2004. 275pp. Cloth $60.00 / £40.00. ISBN: 0802042392. Paper. $29.95 / £20.00. ISBN: 0802080839.

Reviewed by Troy Riddell, Department of Political Science, University of Guelph. Email: riddell@uoguelph.ca .

pp.289-294

In his book, THE HATEFUL AND THE OBSCENE: STUDIES IN THE LIMITS OF FREE EXPRESSION, L.W. Sumner sets out to construct a theory of free expression and explain its ramifications for policy-making (whether legislative or judicial). Although there are some comparative references to the U.S., Sumner’s analysis focuses on Canadian law and jurisprudence involving pornography, child pornography, and hate speech.

Sumner argues that Mill’s utilitarian-based framework allows for the coercive interference with free expression only if two conditions are satisfied: the harm principle (“the expression in question must cause harm to others”) and the consequentialist principle (“interference with the expression must yield a better balance of benefits over costs than non-interference”) (p.33). According to Sumner, the former principle excludes censorship that is designed to protect against moral corruption, degradation, or offence. The latter principle is context specific, requiring that a policy restricting expression must have a reasonable chance of success, that less intrusive means must not be available to prevent social harm, and that the overall benefits of the policy must outweigh the harm. Given the importance that Mill places on the importance of free speech both for the individual and for democratic societies as a whole, it is difficult for governments to justify restrictions on expressive content. Sumner’s careful reading of Mill, though, leads him to conclude that time, place and manner restrictions and restrictions against inciting harmful acts could be justified more easily.

Sumner finds parallels between Mill’s framework and the Supreme Court of Canada’s (SCC) operationalization of the Section 1 “reasonable limits” clause of the Charter of Rights and Freedoms in the OAKES (1986) case. The “OAKES test” requires that once a Charter right has been found to have been infringed, the government can justify that infringement under Section 1 only if it can demonstrate that: 1) there is a pressing and substantial objective and 2) the means are proportional to the object (a) the means are rationally connected to the objective, b) the means impair the right as little as possible, and c) the costs of the limitation do not exceed the benefits of achieving the objective. The Court has emphasized that the OAKES test is not a mechanical exercise, but one that attempts to balance the interests at stake within a given context.

The core of Chapter Three is devoted to explaining the SCC’s methodology in trying to balance the interests of liberty and equality in KEEGSTRA (1990), [*290] which involved a challenge to the hate speech provisions in the Criminal Code. All seven judges found that restrictions on hate speech violated the right to free expression in the Charter. Under the OAKES test, all agreed that the law had a “pressing and substantial” objective in trying to protect the equality of minority groups, but three judges argued that the law failed the proportionality test because it was overbroad and actually might have the perverse effect of turning hate propagandists into martyrs. Chief Justice Dickson, writing for the majority of four judges, argued that the law was important for upholding values of equality and that the law was well-tailored.

Sumner uses the KEEGSTRA decision as a springboard to discuss a series of related issues and questions. He questions why some judges are reluctant to devote much time to the last part of the OAKES test (the cost-benefit analysis), and he argues, contrary to some Canadian legal commentators, that the cost-benefit step is not redundant (p.66). Moreover, Sumner maintains that courts should demand clear evidence that the law is preventing actual harm to individuals or groups and that the benefits outweigh the costs. He argues that the SCC has been too deferential to the government’s evidence in some cases. Finally, Sumner compares Canadian free speech jurisprudence to that of the US (pp.70-77). He argues that, although the SCC has at times indicated that some types of expression generally warrant greater protection than others, for the most part the SCC has viewed rights as instrumental and used consequentialist and contextual decision-making using the OAKES test to determine, on a case by case basis, whether the benefits of limiting speech rights outweigh the costs; in contrast, the US Supreme Court (USSC) has created rather strict doctrinal rules based on a theory that free speech rights are constitutive of a liberal democratic regime (though Sumner recognizes that some of the definitional limits imposed on free speech by the USSC may be the result of some sort of quasi-consequentialist reasoning that tries to balance interests). He contrasts the outcome in KEEGSTRA with that of R.A.V. v. ST. PAUL (1992) in which the USSC overturned the hate speech law at issue. According to Sumner, although differences in political culture between the countries cannot be ignored, the differences in modes of analysis between the Canadian and American courts might help explain why the SCC has tended to be more deferential to government restrictions on free speech than has the USSC.

Sumner’s discussion is an informative and useful one, but students of judicial politics will find it somewhat lacking. For instance, Sumner needs a more subtle definition of “deference.” Sumner uses both BUTLER (1992) (upholding the pornography law) and SHARPE (2001) (upholding the child pornography law) as examples of the SCC being deferential to Parliament, but in both cases the Court transformed the laws while upholding them. This leads one to question whether the SCC is indeed as deferential compared to the USSC as Sumner would have us believe. Even if one does accept that claim, Sumner does not consider alternative explanations for it (or even for differences between or within decisions of the same Court). Sumner [*291] acknowledges that some of the SCC’s decisions were very close, such as KEEGSTRA (4-3, upholding hate speech laws) and ZUNDEL (4-3, striking down a law against spreading false news), but he does not discuss how the attitudes of individual judges might make as much or more of a difference to outcomes as either political culture or the different modes of analysis between the courts. For instance, although Justice Clarence Thomas has been criticized for “failing to reflect the experiences of minorities in his decisions,” his strong concurrence in upholding the constitutionality of Virginia’s anti-crossing burning statute in VIRGINIA v. BLACK (2003) reflects an opinion “written from the perspective of a member of a racial group that has long been the target of hatred” (Epstein and Walker, 2004: 285). Nor does Sumner provide adequate discussion about whether courts have the institutional capacity to balance interests or what could be done to improve this capacity.

Chapters Four and Five concentrate primarily on the issue of pornography, though Chapter Five “In Harm’s Way?” also includes a discussion about whether there is an empirical link between hate speech and harm to minorities. Sumner deftly takes the reader through the convoluted history of law and jurisprudence on pornography in Canada and then explains how the SCC in BUTLER (1992) synthesized three tests that existed for determining whether material unduly exploited sex as prohibited by the Criminal Code, while upholding the law under the OAKES test. According to the Court, the objective of the law should not be to enforce morality, but to prevent the harm that would accrue from material predisposing people to act in an anti-social manner “as, for example, the physical or mental mistreatment of women by men.” On the basis of lower court decisions rather than any evidentiary evidence of community standards, Justice Sopinka argued that explicit sex with violence will almost always be considered obscene; explicit sex without violence, but that is degrading or dehumanizing will be considered obscene if the risk of harm is substantial; and that explicit sex that is neither degrading nor dehumanizing will not be obscene unless children are involved (p.117). Whether the material possessed any artistic, literary or other legitimate purpose would also be determined in the context of community toleration. The difficulties associated with the community standards test are delineated by Sumner, including determining such standards in a large and diverse country like Canada. Sumner also points out that the vagaries of the obscenity definition led some judges to declare gay porn as obscene.

Setting aside practical considerations, Sumner reminds us that Mill’s philosophical framework also requires evidence of harm. He first addresses the question of harm and pornography. He concedes that it would be “foolhardy—and almost certainly false” to claim that no woman has ever been mistreated in the making of pornography, but he argues that formal and informal industry rules in Canada and the US largely prevent participant harms (pp.129-131). As for whether pornography indirectly causes harm to women, Sumner’s thoughtful recitation of the methodologies and findings of various social science studies leads him [*292] to conclude that the research is rather inconclusive but tends not to suggest that there is a significant causal relationship between sexual depictions in pornography and mistreatment of women by men (though there may be a relationship between depictions of violence against women and male behaviour towards women). Sumner also maintains that there is little empirical evidence to support the claim that pornography is created through coercion resulting from social and economic inequality of women, because women in the industry come from diverse family and socio-economic backgrounds (p.142). Moreover, Sumner illustrates that feminists who argue that “participating in pornography is degrading and, since nobody wants to be degraded, women who participate in pornography are therefore coerced” implicitly or explicitly adopt moralistic reasoning through a circular argument that is not open to empirical refutation (p.145).

Sumner spends less time discussing the possible links between hate speech and harm and child pornography and harm. Moral distress, according to Sumner, cannot be used to restrict hate speech within Mill’s framework, but he refers to social-psychology research to show that hate propaganda may contribute to the social inequality of minorities such as Jews, blacks and gays by perpetuating and reinforcing discriminatory attitudes that are implanted in minority communities and the minds of even well-meaning members of the dominant group (p.161). He notes, however, that such research cannot ever definitively trace the causal impact of hate speech on minority inequality. In addition to pointing out this general methodological difficulty, it would have been helpful for Sumner to discuss how to distinguish between “moral distress” and “psychological stress.”

Sumner argues that there is a clearer link between harm and hate expression that is violent or expression that implies or openly advocates violence towards minorities. Organized hate groups use hate propaganda to recruit new members, and there have been a number of documented cases where the perpetrators of hate violence have been members of hate groups (pp.162-163). Similarly, Sumner argues that there are documented cases of pedophiles using child pornography to recruit more children. Since children are also harmed in the production of child pornography, Sumner concludes that some linkages between child pornography and harm to children are relatively clear (pp.156-157).

This all leads to the book’s final chapter in which Sumner takes us “From Principle to Policy.” The chapter concludes with a summary of four key recommendations: “(1) A slimmed down child pornography law: the possession offence retained within the context of a narrower definition of child pornography; (2) No (further) content restrictions: no criminal or human rights legislation prohibiting expressive materials on the basis of obscene or hateful content. [In relation to pornography, Sumner argued that the focus on sexuality is misplaced and more attention should be given to misogynist material that incites hatred toward women (p.193)]; (3) More use of context restrictions [such as time, place and manner restrictions]: in particular, an expanded criminal prohibitions of [*293] expressive materials inciting hate violence; (4) No prior restraint: no censorship of expressive materials by Customs officials, film boards or other bureaucracies” (p.202).

Of course not all will agree with these prescriptions, even if one does buy into the underlying philosophical premise on which they are based. In particular, some may agree with the concurring opinion in SHARPE by the SCC that a slimmed down child pornography law could lead to significant harms that are not worth the liberty afforded to child pornographers. Nevertheless, Sumner deserves considerable credit for carefully constructing a theory of free expression based on Mill’s framework and then creating concrete policy advice on that basis.

Paradoxically, though, the straightforward analytical progression of the book is also a weakness. Nowhere does Sumner meaningfully demonstrate the superiority of Mill’s framework to other philosophical theories or propositions that might generate different conclusions. How, for example, would Sumner respond to Christopher Manfredi’s argument that limits on free expression can be useful in cultivating a certain minimal level of virtue in citizens required for a liberal democracy? (To support his argument Manfredi even invokes Mill’s observation that “the qualities of the human beings composing the society over which the government is exercised” is directly related to the quality of that government (pp.67-68)). Sumner does compare briefly Mill’s “foundational” approach to more “free standing” justifications for liberalism grounded in the requirement of ‘overlapping consensus’ amongst political groups in a society. He argues that it is possible to bring Mill’s framework somewhat closer to the free-standing approaches by accepting some aspects of Mill’s utilitarian principles, such as instrumentalism and consequentialism, while rejecting others, such as aggegregation or welfarism. However, this argument is not well developed, and one is left with the suspicion that it might not be so easy to pick and choose amongst Mill’s utilitarian principles. For example, Sumner argues that one can reject welfarism by acknowledging a plurality of independent and equally basic values; yet, given that the harm principle rejects various morality-based values it is not immediately apparent what kind or how many basic values could be left in play.

A more fully developed discussion of Mill’s philosophy and how it compares with some other philosophical propositions would have been particularly useful to someone such as me who is more familiar with the judicial and policy issues discussed in the book. As noted above, this familiarity with judicial politics made me wish that Sumner would have offered slightly more nuanced observations and arguments when talking about the courts. Sumner could have bolstered both the philosophical and judicial elements of the book while basically maintaining its rather nice and accessible length by dropping material in various parts of the book that is rather superfluous. Many of the concepts discussed in Chapter One, especially the “anatomy of rights,” seem largely forgotten in the rest of the book. Elsewhere, it takes two pages of arcane discussion for Sumner to make the basic point that the interests at stake in the [*294] KEEGSTRA hate speech case were liberty and equality.

I think also that parts of the book could have been organized in a slightly more logical manner, but this is a quibble. Sumner thoughtfully executed what he set out to do: create a theory of free expression that could be applied to certain controversial policy areas. Those who would argue for content restrictions (rather than context restrictions) on hateful or obscene material will be forced to grapple with this powerful book.

REFERENCES:

Epstein, Lee and Thomas G. Walker. 2004. CONSTITUTIONAL LAW FOR A CHANGING AMERICA: RIGHTS, LIBERTIES AND JUSTICE. Washington, D.C.: Congressional Law Quarterly.

Manfredi, Christopher P. 2001. JUDICIAL POWER AND THE CHARTER: CANADA AND THE PARADOX OF LIBERAL CONSTITUTIONALISM (2nd ed.). Don Mills, ON: Oxford University Press.

CASE REFERENCES:

R v. BUTLER, [1992] 1 SCR 452.

R v. KEEGSTRA, [1990] 3 SCR 697.

R v. OAKES, [1986] 1 SCR 103.

R.A.V. v. ST. PAUL, 505 US 377 (1992).

R v. SHARPE, [2001] 1 SCR 45.

VIRGINIA v. BLACK, 538 US 343 (2003).

R v. ZUNDEL, [1992] 2 SCR 731.

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© Copyright 2005 by the author, Troy Riddell.

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JUST MARRIAGE

by Mary Lyndon Shanley (Joshua Cohen and Deborah Chasman, eds). New York: Oxford University Press, 2004. 128pp. Hardback. £27.50 / $45.00. ISBN: 0-19-517625-1. Paper. £7.99 / $12.95. ISBN: 0-19-517626-X.

Reviewed by Rebecca Mae Salokar, Department of Political Science, Florida International University. Email: salokar@fiu.edu.

pp.286-288

The institution of marriage has come under increasing scrutiny by the scholarly community, political leaders and the public because of the push for same-sex marriages. Typically, this debate focuses on questions of equality and access: should same-sex couples enjoy state recognition of their committed relationships and receive the public benefits conferred with that recognition. However, the discourse has also called attention to a larger issue that has long been a concern to those who study gender relationships, the family unit, and poverty in America. Should marriage, as currently constructed, remain the optimal and privileged arrangement in defining our committed relationships, whether they be same-sex, opposite-sex or other affairs of the heart?

One of the more recent entries into this debate is JUST MARRIAGE. Originally assembled for the New Democracy Forum of the BOSTON REVIEW (Summer 2003), JUST MARRIAGE does not fit the classic mold of a single-authored work or edited book. It is, instead, a three-part work that consists of a 27-page monograph by Mary Lyndon Shanley, followed by short (3-5 page) commentaries by 13 prominent thinkers. Written by Shanley nearly a year after the series first appeared, the final section serves as a revision to her earlier thoughts on marriage in American society.

The thesis of Shanley’s opening essay is that marriage is necessary and valuable to civil society but must be modified to make the institution more just and accessible. She attempts to navigate between the extremes of conservatives and contractualists. The former view marriage as rooted in tradition, nature or religion, imbued with gendered roles and obligations, and inherently privileged by the state; while the latter argue that liberty and equality demand that marriage not be state sponsored or privileged, but should simply be a private contract between two consenting adults who enjoy the liberty of personal choice. Citing the dual goals of liberty and equality, Shanley attempts to craft a middle position (“the equal status view”) that would retain marriage as privileged, but make it more widely accessible while promoting equality within the marital relationship (p.6).

Tracing the development of marriage laws in the United States from their inception through two waves of reform, Shanley posits that individual liberty and personal choice should be central to future reforms. Thus, marriage should be accessible to same-sex couples. However, in exploring whether plural marriages would also be recognized by the state based on the same principle of liberty, she is less certain that the principle of equality would be achieved in those relationships, something that is [*287] essential to her notion of marriage reform. Shanley’s ensuing discussion of equality draws from the feminist literature documenting the inequities inherent in the marital relationship, the institutionalization of gender roles in work and care giving, and the imposition of economic policies that undermine the marital relationships of the poor.

In addition to making marriage more accessible, Shanley proposes that state action must promote “spousal equality” by ending practices and traditions that reinforce gender norms in employment and in the home (p.20). She calls for economic reforms that include revising employment practices and extending employment benefits, insuring equal pay, providing childcare and parental leave programs that are affordable and gender neutral, and revising the manner in which wages are treated in divorce settlements (p.25).

The thirteen commentaries, comprising the middle of this work, range from constructively critical of Shanley’s thesis to pursuits of further inquiry and application. The assembled scholars hail from law, political science, history, and women’s studies, and some are prominent in both the public press as well as the academy. The book lacks a view from the right; none of the commentators advocates the continued entrenchment of traditional, heterosexual marriage with its inherently unequal gender roles for care, obedience and economic provision. In short, the consensus is that marriage ought to be liberally transformed, supplemented or eliminated.

Amitai Etzioni, for example, crafts a communitarian response, arguing that establishing a parallel system of civil unions for same-sex couples will serve as a mechanism to allow “people of different basic values to live together without one set of values ‘trumping’ the other” (p.65). Cass Sunstein notes the value of federalism in testing new ideas and encouraging diversity and suggests that Shanley’s emphasis on equality may more rightly be described as working towards an “anticaste principle” (p.44). Nancy Cott points to the weaknesses in the essay regarding the “public” good of marriage (p.36), while Martha Albertson Fineman and Joan Tronto raise questions regarding the proper role of the state in the sexual relationship versus the caretaker-dependent relationship (pp.40, 50).

David Cruz and William Eskridge, Jr., bring their work on same-sex relationships to bear in their assessment of Shanley’s work. Cruz notes the dilemma of defining the marital relationship as an “entity” and suggests that the liberal state ought to remain neutral by not preferring marriage to other relationships. Eskridge, on the other hand, makes the case for marriage’s inclusion of same-sex couples by pointing to research suggesting that gay couples can benefit from marriage and that some may even prove to be “better role models” for marriage than many of their heterosexual counterparts (p.60).

Drucilla Cornell, Wendy Brown, Brenda Cossman, and Tamara Metz extend Shanley’s essay in suggesting the importance of relationships beyond the traditional heterosexual dyad. Cornell uses queer theory to note that marriage is restrictive and binding, and that true liberation demands the end of these [*288] constraints. She proposes “the right of the imaginary domain” as a vehicle for each individual to define his or her relationships (p.83). Brown suggests that the focus on marriage relegates other valuable relationships like kinship to second-class status; while Cossman focuses on the dilemma of defining the marital relationship at all, arguing that the law should embrace a range of relationships not solely dependent upon the intimate dyad. Finally, Metz argues that only by ending all civil marriage and replacing it with civil unions will justice prevail.

The book concludes with Shanley’s reconsideration of her thesis in the wake of the San Francisco and Massachusetts same-sex marriage “events” and the passage of state laws restricting marriage to the heterosexual dyad. Recognizing the religiously laden rhetoric surrounding marriage, Shanley revises her thesis. She argues that the state ought to get out of the “marriage” business completely, leaving it to religious and non-civil institutions, and instead confer its legal status upon civil unions—for all couples. In doing so, she acknowledges the limits of her earlier argument as well as the contributions of the commentators to the development of her thinking. But Shanley maintains her position that committed relationships ought to be recognized by the state. Ultimately, Shanley joins others in recognizing that there are no easy answers or solutions to the future development of marriage in the United States.

JUST MARRIAGE should be of particular interest to those who teach and work in the areas of democratic theory, family law, women’s studies and gender politics. The text is accessible reading for undergraduate and graduate students, alike. It would be particularly valuable in a democratic theory course as a vehicle for showing students a modern application of liberal thought. The work also has potential as a teaching tool for critical thinking skills and as an example of how to engage in constructive criticism. That the more conservative views on marriage are not included in the commentaries is its singular weakness.

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© Copyright 2005 by the author, Rebecca Mae Salokar.

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COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE

by Constanze Schulte. New York: Oxford University Press, 2004. 500pp. Hardback. £75.00 / $150.00. ISBN 0-19-927672-2.

Reviewed by David Schultz, Graduate School of Public Administration and Management, Hamline University. Dschultz@gw.hamline.edu

pp.282-285

These are heady days for international law and lawyers. Despite protests from critics, for example, that the United States went to war in Iraq premised upon faulty evidence, the Bush Administration did at least on one level seek to justify its actions by appeal to international law or norms, or by seeking United Nations approval. Similarly, the birth of the International Criminal Court and the rising importance of the European Court of Justice and the European Court of Human Rights also attest to the growing importance and power of international tribunals in structuring and affecting state and non-state actor behavior in the world.

Similarly, the International Court of Justice (ICJ) is also a major player in world politics. Created in 1945 under the Charter of the United Nations, it was conceived as the principal judicial body entrusted with adjudicating international law disputes. It is the successor to the Permanent Court of International Justice (1922 -1946), created by the League of Nations. As of 2004, the ICJ was busy, with more than 20 cases on its docket, addressing issues ranging from territorial questions, criminal cases, to treaty disputes. While critics often argue that the ability of international law and the ICJ to bind state actors is weak, and that the dualist nature of many legal regimes limits the enforcement of international norms, Constanze Schulte seeks to set the record straight and investigate the history of compliance with this tribunal. One of the major surprises to emerge is that the ICJ actually has a great record of securing compliance, despite some notable failures.

To study compliance with decisions of the ICJ, Schulte examines all of the final judgments and interim orders issued by the Court from 1946 until 2003. Chapter One describes her methodology. Excluded from the study are advisory opinions and interlocutory decisions. Chapter Two is a detailed discussion of the legal framework surrounding the ICJ, mandatory compliance, and enforcement. The basis for mandatory compliance with decisions (final judgments) of the ICJ was first located in Article 13 (4) of the League of Nations Covenant. Schulte describes the process of how Australia and Cuba took the original language of 13 (4) and fashioned it into Article 94 of the current UN Charter, mandating that parties, both member states as well as non-members to the UN under 93 (2)—if the latter wish—are to comply with orders of the ICJ. Similarly, interim orders are considered decisions under Article 94 and are also binding upon UN member states and upon non-members who opt to resolve their disputes with the ICJ.

Primary enforcement of ICJ orders is covered by Article 94 (2), giving the [*283] Security Council a range of options to compel or encourage compliance. These options, as Schulte points out, are recommendations for specific measures that may include simple appeals for compliance and other peaceful options—a request to the World Bank to withdraw funds from a country, for example. The author also argues that the Security Council’s enforcement options are purely peaceful, such that it would appear to rule out authorizing the use of force. Hence, had the United States sought an ICJ directive to Iraq to comply with orders to let UN inspectors in, Bush would not have been able to rely upon Security Council authority to use military force to enforce the court’s decision.

In addition, the enforcement options of the General Assembly, the Secretary-General, the winning party in the case, and third parties are also examined. In light of Iraq, one wishes the author had spent more time examining these issues, but they were beyond the scope of the book’s project. Finally, Schulte’s Security Council-ICJ discussion also provides an interesting analysis of whether the former could modify or refuse to enforce the decisions of the latter.

How might losing parties avoid compliance with ICJ orders? The author offers some suggestions that include feigning compliance or delaying it. But otherwise, strictly speaking, ICJ orders are binding, and parties who ascent to its jurisdiction must comply with its directives. This means that the only effective way to defeat compliance resides in a party’s modifying its ascent to the jurisdiction of the ICJ under Article 36 of the Statutes of the Court. This is exactly what the United States did in 1984 when it refused to recognize the ICJ’s authority to hear the dispute brought by Nicaragua, contesting the legality of the CIA’s activities against it, including the mining of its harbors and the aiding of the Contras. Eventually, the United States lost its argument that the ICJ lacked jurisdiction to hear the case, it refused to participate in arguments on the merits, and finally lost. Efforts to secure compliance proved futile, and it was only with the change of regime in Nicaragua with the 1991 election of President Chamorro and her decision to withdraw the complaint from the Court, that the matter was settled.

Chapter Three is over 300 pages long! This is the heart of the compliance study, where the author undertakes a detailed examination of all the final orders and interim measures. A total of 27 cases with final orders are examined, as well as 11 provisional measures. The discussion in is historically rich in detail and law, producing some surprises and questions. First the surprise: Only one case where the ICJ issued a final order is listed as one where non-compliance occurred. This is the 1949 Corfu Channel case, growing out of a 1946 incident where two British destroyers struck land mines off of Albania. The UK held Albania responsible, the ICJ ruled for the former, and ordered compensation to be paid. Albania refused, and the case was unresolved for more forty years. It was only in 1992—after the fall of its communist regime—that Albania agreed to terms, eventually resolving the case in 1996. With that resolution, Schulte considers compliance to have been secured—47 years later!

For most readers, two other cases of [*284] dubious compliance with final orders stand out. First, as noted above, is the United States-Nicaragua dispute. Schulte places this case in the unresolved category; whereas most might consider it a clear instance of non-compliance. Second, she considers the 1979 ICJ decision arising out of the taking of American embassy personnel by Iran as one eventually resulting in compliance. Schulte supports that conclusion by noting how the two countries in the long run reached agreement on the return of the hostages and for a settlement regarding US freezing of Iranian assets. Many might argue that Iran did not comply with the decision, but Schulte notes that the noncompliance was with an interim measure and not the final order. In fact, of the 11 provisional measures, only one secured compliance. Thus, unlike the final orders, provisional ones seem to be ignored with relative impunity.

What do we learn from this analysis? First, the Nicaragua case is seen as a turning point for the ICJ. Schulte argues that simply refusing to participate in ICJ proceedings became the favorite tool of noncompliance. Second, delaying is another tool frequently invoked to defeat acquiescence. Third, highly political cases were those most likely to involve noncompliance. But surprisingly, form of government—democratic or not—was not a significant variable in determining compliance, and the same was true with UN membership. Instead, Schulte argues that the attitude of the parties toward the Court was the single most important factor affecting compliance. If countries wanted to resolve a dispute and turned to the ICJ for decision, they complied, almost whatever the political repercussions or costs. For the interim measures, greater noncompliance may, as Schulte argues, rest simply in the fact that they were provisional and that a party to the dispute saw disobeying as perhaps a way of gaining leverage prior to a final judgment. Overall, Schulte’s conclusion is that there is relatively high compliance with the ICJ, and such a record deserves to be publicized and noted.

COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE fills a major void in the scholarly literature in international law. It provides rich legal detail on the ICJ and the issues of enforcement, and it also offers a wealth of historical information on the decisions it has issued and reaction to them by the parties and the international community. Finally, the assessment of variables affecting compliance is an important contribution to the international law literature, yet the conclusion that attitude toward the tribunal is the critical variable in determining compliance might not impress critics. But to show that the ICJ has a high record of compliance success is surely a surprise, and suggests that more studies of compliance with other international bodies are in order.

Yet, I do have some concerns with the how cases are classified. As noted above, to list the Iran and Nicaragua cases as unresolved or as having achieved compliance will strike many as incorrect. Similarly, a settlement agreement in the Corfu Channel case 47 years late also questions whether this case should be considered one of fulfillment. Schulte should have provided more specification regarding what is considered compliance, with a time frame for obedience included. [*285] Definitions of compliance, moreover, should also clarify how post ICJ activities, such as UN action, negotiations with principal parties, and other observations, are to be assessed. In many cases, the ICJ decision may not itself have led to compliance, but instead facilitated negotiations or actions that produced a resolution to the dispute. Some refinements in what compliance means may in fact lead to a less favorable assessment of the efficacy of ICJ decisions. Finally, what the book sets up is the potential for a more quantitative analysis of variables affecting ICJ compliance. It does that by already identifying many of the critical factors needed to examine the ICJ, including those affecting the litigants and character of the dispute.

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© Copyright 2005 by the author, David Schultz.

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HUMAN RIGHTS IN THE DIGITAL AGE

by Mathias Klang and Andrew Murray (eds). London: Glasshouse Press, 2004. 276pp. Paper £25.00 / $50.00. ISBN: 1-90438-531-1.

Reviewed by Conway W. Henderson, Department of Political Science, University of South Carolina Upstate. chenderson@uscupstate.edu.

pp.279-281

Editors Mathias Klang and Andrew Murray, and associated writers—mostly lawyers and communications specialists—offer seventeen articles in HUMAN RIGHTS IN THE DIGITAL AGE intended to shed light on the digital age in its dual role as promoter of human rights and as facilitator of the state’s ability to suppress these rights. Despite the great breadth of the human rights field, more than half of the articles deal either with narrow-based cases of censorship, involving firewalls, filters, and the like, or with privacy issues threatened by surveillance techniques. Taken together, some of these articles are fairly redundant and their subjects have been discussed in the public media for years. Chatterjee’s “Pixels, Pimps, and Prostitutes” on the sexual exploitation of women and Eneman’s “The New Face of Child Pornography” cover important human rights issues but do not say much that is new. The three articles by Paré, Couser, and Bing might well have been grouped together as sharing an interest in e-commerce. Bing raises the interesting specter of government and business decisions, previously based on human judgments, now converted to computerized processes operating without due attention to human interests.

It is clear from HUMAN RIGHTS IN THE DIGITAL AGE that the authors are more taken with the intricacies of new digital technologies than probing widely and deeply for human rights implications. There are two articles, however, by Klang on “Virtual Sit-ins” and Brownsword on “Biotechnology and Rights,” which are particularly interesting and useful. Klang raises important questions about “cybersitting” on government websites as a form of civil disobedience and generally finds the criminalization of this practice, as a response to “nine-eleven” terrorism, to be overdrawn. Brownsword’s investigation of biotechnology refreshingly takes into account human rights treaties as he ascertains the dangers biotechnology might present to human dignity. Too many of the articles pay little attention to identifying and defining human rights standards before their authors dive into pools of technical minutiae.

What is really missing from this book is any sense of how much of the scope of human rights (and there are a great many human rights identified in numerous treaties) can be connected to digital technology. Have the authors together covered all the issues or do these articles represent only the specialized interests of a particular group of writers? Robin Mansell, in the introduction, bravely tries to make sense of it all but almost to no avail. Some help might have come from dividing the table of contents into meaningful sub-categories, but [*280] numerous articles on censorship and privacy would have skewed the categories. One unfailingly useful organizational method is to have one editor write the introduction, putting the work of contributors into perspective, with the other editor summing up the book’s contribution in a concluding chapter. In between, a forthright effort should have been made to assign a distinct human rights/technology issue to each author, thus covering more of the scope of the human rights field and also avoiding some unfortunate redundancy. An organizational strength that is present, and usually missing from edited books, is this volume’s index.

HUMAN RIGHTS IN THE DIGITAL AGE almost ignores the grand view of what the digital technology means for human rights. Digitalized communications of many kinds have created the “information highway” and shrink-wrapped the world into the “global village.” Only a few of the articles touch on this great sweeping force of history. This still surging force has recently undercut European communism and threatened the communist leadership in China in the form of the Tiananmen Square student uprising. Everywhere free flows of information occur, restive populations arise. No dictator today is safe. The information highway does not always have to depend on CNN or the Internet, mostly luxuries of the modern world. As journalist Thomas L. Friedman wrote a few years ago, an information revolution can spring from low-tech media, such as the FM radio. He pointed out that the four most democratic countries in West Africa – Benin, Ghana, Mali, and Senegal – have private, flourishing FM talk radio that challenges their governments and holds them accountable.

Multi-media also encourage democracy and transparency within the emergent global civil society and global governance. International NGOs (INGOs) join forces through the Internet and demand reforms that serve people instead of leaving the world to the machinations of power politics conducted by states. The outstanding example of citizen activism on the world stage is the work of Jody Williams, through her leadership of the International Campaign to Ban Landmines. Williams and this INGO shared the 1997 Nobel Peace Prize. Thousands of citizen-activists, aided by Canada, marshaled enough political clout via the Internet to produce the Ottawa Convention banning landmines.

All that information flows do for democracy, they do as well for human rights.

Digitalized information flows have helped push Samuel Huntington’s Third Wave of Democracy upon authoritarian beaches and helped sustain it there. One empirical study after another has found that the presence of genuine democratic governments—those selected by the people and answerable to the people—will enhance prospects for the enjoyment of human rights more than any other precondition. A few of the articles of the work under review brush up against this grand view of information, but none do it justice.

REFERENCE:

Huntington, Samuel P. 1991. THE THIRD WAVE: DEMOCRATIZATION IN THE LATE TWENTIETH CENTURY. [*281] Norman: University of Oklahoma Press.

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© Copyright 2005 by the author, Conway W. Henderson.

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RECLAIMING THE STREETS, SURVEILLANCE, SOCIAL CONTROL, AND THE CITY

by Roy Coleman. Cullompton, UK: Willan Publishing, 2004. 256pp. Hardback. £30.00 / $55.00. ISBN: 1-84392-077-8.

Reviewed by Kimberly A. McCabe, Department of Sociology, Lynchburg College. Email: mccabe@lynchburg.edu

pp.277-278

Since the first use of closed circuit television (CCTV) as surveillance equipment to aid law enforcement in crime control, little empirical evidence has been produced regarding its effectiveness. In fact, most of the writings on CCTV since its introduction in the 1990s have simply consisted of discussions of its utility or possible conflicts with individual privacy rights. Roy Coleman’s RECLAIMING THE STREETS not only examines the use of CCTV in a city (Liverpool) to maintain order but also addresses the political processes shaping its deployment in the United Kingdom (UK) and throughout the world. Coleman addresses the day-to-day activities as well as the philosophies behind the use of CCTV.

Chapter One introduces the book with a general overview of the following chapters and a prelude that discusses the need for this text. Chapter Two provides an in-depth discussion on the concept of social control and the issues surrounding it, including a discussion of the history of the state’s influences. Philosophers such as Foucault are referenced in considering localized public and private organizations to explain the need for an increase in social control. Included in this chapter are a history and a unified foundation that serves as a basis for the perceived need of control by the state and the citizenry’s willingness to relinquish some of their freedoms for the general ‘good.’

Chapter Three presents several ideologies regarding social solidarity, control of individuals by social norms, and members of society who support those norms. Coleman also addresses the assumption that the importance of the state (inferred as law enforcement) is declining. Chapter Four documents the process of planning city development, and the often-conflicting goals of providing public space and minimizing risk to personal security. Chapter Five presents an overview of social control and governance in Liverpool during the 19th and 20th centuries and a discussion of how Liverpool developed a reputation as a problem city. Indeed, Liverpool faces serious problems associated with street disorder and suffers the presence of “unruly” groups in the city’s center; however, hard-line policing is not a desired response. Thus, Coleman provides the foundation of information on the city prior to the introduction and utilization of a CCTV network.

Chapter Six discusses the development of early control measures in Liverpool and reinforces themes from earlier chapters. In Chapter Seven, Coleman recounts the introduction of CCTV as merely a part of crime prevention technology. City leaders soon deployed a camera network in Liverpool with the [*278] overall goals of “cleaning the streets” and establishing “urban pride”—i.e., to reinforce the positive social relationships among the citizens. The “success” of CCTV is also apparent in this chapter.

In the final chapter, Coleman concludes with a discussion of the relationship between surveillance, law enforcement and social order. CCTV is apparently now viewed by law enforcement as an important component in their strategy of crime and social control, and its perceived value is increasing throughout the United Kingdom.

Coleman provides an excellent discussion of surveillance and social control theory and how CCTV operates. He considers the practical need for CCTV and justifies its use in terms of social solidarity. Coleman has attempted to address both academics and practitioners. Unfortunately, he may have produced a book that is of limited benefit to both audiences. Specifically, the first few chapters are so heavily theoretical that practitioners will probably not choose Coleman’s text as a reference. Chapters Five and Six, which consider the utility of CCTV, were probably the most important; however Coleman fails to highlight these chapters in the overall presentation.

In summary, it is this reviewer’s fear that this text, which is thoughtful and informative, may not reach its intended audiences. Coleman provides a wonderful narrative on the use of CCTV and the issues surrounding its utility; however, the presentation of the material is at times rather dense.

Those interested in the issues of CCTV and social control might find recent books by Norris, Morran, and Armstrong (1998) and Tombs and Whyte (2003) to be more accessible.

REFERENCES:

Norris, Clive, Jade Moran, and Gary Armstrong (eds). 1998. SURVEILLANCE, CLOSED CIRCUIT TELEVISION AND SOCIAL CONTROL. Brookfield, VT: Ashgate Publishing Co.

Tombs, Steven, and Dave Whyte (eds). 2003. UNMASKING THE CRIMES OF THE POWERFUL: SCRUTINISING STATES AND CORPORATIONS. New York: Peter Lang.

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© Copyright 2005 by the author, Kimberly A. McCabe.

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THE DEMOCRACY DEFICIT: TAMING GLOBALIZATION THROUGH LAW REFORM

by Alfred C. Aman, Jr. New York and London: New York University Press, 2004. 288pp. Cloth. $45.00. ISBN: 0-8147-0700-9.

Reviewed by Michael C. Tolley, Department of Political Science, Northeastern University. Email: m.tolley@neu.edu

pp.274-276

Alfred Aman begins THE DEMOCRACY DEFICIT: TAMING GLOBALIZATION THROUGH LAW REFORM by asking the following question: “Can citizens govern globalization” (p.1)? By “globalization” he means the “pluralistic, multicentered and dynamic processes involving interrelationships among states and nonstate entities across national boundaries” (p.1). Believing that these processes can be governed, he goes on to show how law, specifically domestic administrative law, may be used to curb some of globalization’s anti-democratic features.

Aman is the former dean of the Indiana University School of Law and currently director of Indiana University’s Institute for Advanced Study. He is author of ADMINISTRATIVE LAW IN A GLOBAL ERA (1992) and co-author with William Mayton of ADMINISTRATIVE LAW (2001). In his new book, Aman addresses many of the contested issues related to law and governance in the new global economy: To what extent are the powers of these new global institutions legitimate? How might these new forms of power be subjected to democratic control? His assumption is that legitimacy and democratic accountability are matters of law as well as politics and political theory. But what distinguishes Aman’s project from others concerned about the legitimacy and accountability of global institutions, such as the World Trade Organization, the World Bank, and the International Monetary Fund, is his focus on globalization from a domestic perspective. He calls this “the domestic ‘face’ of globalization” (p.7). Aman writes:

The primary purpose of this book is to develop an analysis of globalization from the domestic side. By turning the lens to globalization’s domestic side, we can both advance understanding of the contemporary world and, within the United States, develop approaches to reforms that would expand and strengthen democracy in the various governmental and nongovernmental settings where policy is made and applied today (p.6).

As a result, THE DEMOCRACY DEFICIT fills an important gap in the literature that has focused for the most part on the international “face” of globalization.

To compete in the new global economy, nations have been pressured to move away from traditional forms of regulation. “The principal hallmark of regulation in the global era,” Aman writes, “has thus been the shift from state-centered, command-control regulation to deregulation, privatization, and market forms of regulation” (p.32). Deregulation, privatization, and market-based regulation are the manifestations of globalization within nations which raise questions of “democratic deficit.” [*275] For example, what happens to transparency in decision making when states deregulate and entrust the markets and private actors to achieve public goals? How will citizens in a globalized state maintain meaningful control over matters that affect them but are ultimately determined by private actors, the market, or international organizations? The solutions, Aman argues, are to be found in law, specifically the reform of domestic administrative law “to provide the infrastructure necessary for the exercise of participatory rights by citizens” (p.14) and to manage privatization and the dynamic nature of public-private partnerships.

THE DEMOCRACY DEFICIT includes a preface, an introduction, four chapters, and endnotes with extensive references to the leading works in this field. After the introduction, where the anti-democratic features of globalization in the United States are described, Aman traces in Chapter 1 the development of administrative law from the New Deal to the present day. The historical perspective is effective in showing how administrative law had been employed to meet the challenges of governance at other times and in laying the foundation for the administrative law reforms he is proposing to resolve democratic deficits in globalized states.

Examined in Chapter 2 are what Aman calls the “vertical dimensions of globalization,” or the effects on nation states of delegating power upward to transnational organizations. “Organizations such as the WTO,” Aman writes, “are not mere extensions of the states that have created them—agents, if you will, that are legitimate solely by virtue of their statecentric beginnings and the participation of national representatives” (p.82). Their power, he argues, “depends less on hierarchy and more on the inclusion of the relevant networks of actors involved” (p.84). The key to understanding the vertical dimensions of globalization is to move away from “a federalist analogy to the relationship of international organizations to domestic law toward the more pragmatic, pluralist, and flexible arrangements by which national and international legitimacy and democracy might be strengthened simultaneously” (p.85).

Chapter 3 considers privatization and deregulation, what Aman calls “the horizontal dimensions of globalization.” The main example Aman develops is the privatization of prisons but there are passing references to other examples of the new public-private partnerships in the delivery of social services, such as education and welfare. Delegations of domestic public power to private actors raise the same issues of democratic legitimacy and accountability as delegations of power by nations to transnational organizations. Thus, the problem of democratic deficits today results from both the vertical and horizontal dimensions of globalization.

Chapter 4 is where Aman proposes and develops the administrative law reforms he believes would begin to tame some of globalization’s democracy problems in the United States. Though his reforms are based on U.S. administrative law, comparative public law scholars might be encouraged to test whether the legal prescriptions are general enough to apply in other settings. [*276]

The aim is to restore the values of openness and due process in decisions on matters of public consequence. “[W]hat is needed,” Aman writes, “is the democratization of embedded globalization at the domestic level” (p.177). His reform proposals are designed to improve transparency in decision making and to achieve greater democratic accountability.

Aman’s first proposed reform calls for the move away from the traditional public-private distinction. “A twenty-first-century APA should apply to some private actors, as well as the state,” Aman recommends, “particularly when private actors have significant power over the constituents with whom they deal and when they are engaged in public functions” (p.150). His second proposed reform is to amend the “contracting out” provisions of the Administrative Procedure Act (Section 553). “Contracts used to outsource social services to the poor or to manage private prisons should be viewed as rules, subject to notice and comment, and as the beginning of a process, not the end of a private negotiation” (p.150). His third proposal is to make informal rulemaking more cognizant of global considerations. “Administrative rule-making processes,” Aman suggests, “should include an explicit direction to consider seriously the global implications of proposed rules” (p.150). These reforms flow logically from his careful analysis of the domestic face of globalization and would go a long way toward restoring democracy to the globalizing state.

THE DEMOCRACY DEFICIT is a book that both political scientists and administrative law specialists will find of tremendous value. Political scientists interested, for example, in globalization and its effect on national democratic institutions, would appreciate the author’s care in describing the various dimensions of the democratic deficit. Administrative law specialists would certainly be interested in how their subject might be enlisted to meet the new challenges of globalization. Indeed, the most valuable contribution of this book may be in showing how law might be used to ensure transparency, accountability, and meaningful citizen participation in today’s globalized state.

As for use in the classroom, THE DEMOCRACY DEFICIT would be an ideal supplementary text for graduate and advanced undergraduate courses in administrative law. Professors may find, as I did, that this book raises questions particularly well suited for the final weeks of courses in administrative law—what are the challenges facing administrative law in the 21st century, and can administrative law save democracy from the threats of globalization? And students will appreciate, as mine did, the chance to get away from the cases and read a well-written, thought-provoking text that shows the continued relevance of administrative law in today’s society.

REFERENCES:

Aman, Jr., Alfred C. 1992. ADMINISTRATIVE LAW IN A GLOBAL ERA. Ithaca, NY: Cornell University Press.

Aman, Jr., Alfred C., and William T. Mayton. 2001. ADMINISTRATIVE LAW, 2nd ed. St. Paul, MN: West Group.

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© Copyright 2005 by the author, Michael C. Tolley.

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