AMERICAN LAW IN A GLOBAL CONTEXT

by George P. Fletcher and Steve Sheppard. New York: Oxford University Press, 2005. 696 pp. Hardback. $74.00/£33.50. ISBN: 0-19-516722-8. Paper. $35.00/£21.50. ISBN 0-19-516723-6.

Reviewed by Kirk A. Randazzo, Department of Political Science, University of Kentucky. Email: Kirk.Randazzo@uky.edu

pp.617-620

As scholars of the law increasingly turn their attention to countries beyond the United States, they readily discover significant differences across a myriad of legal issues, including the development of legal doctrine, the application of precedent, and the evolution of the contemporary legal environment. Yet, we often take for granted that individuals will be familiar with the principles of U.S. common law. Thankfully, George Fletcher and Steve Sheppard do not make this assumption. Rather, their book AMERICAN LAW IN A GLOBAL CONTEXT, examines the foundations and evolution of common law in the United States, with an explicit focus on an audience not familiar with these aspects. As they state early on, “these materials grew out of three years’ experience teaching cases to the incoming class of LLM students at Columbia University” (p.ix). Though this is not a research oriented text per se, it should be on the reading lists of those individuals contemplating law school, especially individuals with a limited knowledge of American law.

The organization of the book is straightforward, beginning with a general discussion comparing common law to civil law. Then, the authors move into a section on the development of legal authority, which includes chapters on the notion of equality and freedom, due process and federalism. The third section explores the evolution of common law in non-criminal areas, such as property, equity, contract, and tort. Finally, the authors explore common law as it relates to criminal issues. In each chapter, Fletcher and Sheppard begin by providing definitions of various concepts and discussing how they compare to their civil law counterparts. After these discussions, the authors provide actual cases to illustrate the concepts as they are applied in legal decisions. It is obvious that the authors spent a good deal of time identifying appropriate cases for inclusion, as each serves as a good example of the specific concept in question. Additionally, the authors provide numerous open-ended discussion questions after the case illustration to help readers identify key relationships and work through unresolved issues.

For example, in the first chapter on comparing common law to civil law, Fletcher and Sheppard begin with an examination of the writings of Sir Edward Coke and Sir William Blackstone, both considered founders of the English Common Law. To help illustrate the foundations of common law, the authors make reference to the case SCOTT v. SHEPHERD (1773), which involved “trespass and assault for throwing, casting, and tossing a lighted squib at and against the plaintiff, and striking him therewith on the face, and [*618] so burning one of his eyes, that he lost the sight of it” (p.21). After reproducing the case, the authors list a series of questions and comments designed to draw particular attention to important issues. One question asks readers to summarize the legal position of one of the attorneys; another comments on the differences between common law, civil (Roman) law and canon (church) law. These questions and comments are listed in addition to questions pertaining to the disposition of the case. In sum, the use of actual cases and thoughtful questions/comments in this combination helps the reader explore the various nuances of English common law. Consequently, this serves as a suitable introductory chapter. The remaining chapters of the first section explore specific aspects of the civil legal tradition: the prominence of statutes, the use of case law, and the incorporation of scholarly authority; interpretation of various legal concepts, including due process, policy, fairness, reasonableness, deference, and discretion; and finally, an examination of legal reasoning within common law that focuses on deduction and analogy, stare decisis and precedent versus dicta, and statutory interpretation.

The second section, labeled “Constitutional Identity,” compares aspects of American common law to their closest match in the European civil law traditions. For example, the authors liken the U.S. Constitution to the “American national code” (p.109) as a way to create a frame of reference for unfamiliar readers. After reproducing the Constitutional text and the Bill of Rights, Fletcher and Sheppard set up a number of pointed questions, such as “the German Basic Law (constitution) begins by claiming that it binds alle stalliche Gewalt (‘all state power’). Does this document bind all state power in the United States?” or, “how is the Supreme Court different from a constitutional court on the European continent?” (p.129). These questions compel a reader to think seriously about the interbranch relationships established by the U.S. Constitution, and provide a good comparison to civil law traditions and foundations of authority.

In Chapter Eight, the authors provide an interesting argument on the origins of American common law. They preface the argument by stating that “on many questions of American law, there are two or more answers: the dominant view of the case law of scholarly opinion and many dissenting views” (p.173). They offer this preface to help describe the notion of an “alternative constitution” that began as a dissenting view and evolved into a dominating position. In supporting this argument, the authors note that the Constitution is the third document in a series that established the United States; the first two documents are the Declaration of Independence and the Articles of Confederation. Though the Constitution explicitly replaced the Articles of Confederation as the primary source of law, neither nullified the Declaration of Independence. As such, the authors inquire, “what is the relationship between the Declaration and the Constitution?” (p.173). This question implies that certain ideas exist in a broader legal sense that may not have been explicitly included in the Constitution. While the authors hint an answer through various discussion questions and inclusion of language from the Gettysburg Address, the Reconstruction Amendments, and cases like STRAUDER v. WEST VIRGINIA [*619] (1879) and the CIVIL RIGHTS CASES (1883), they do not explicitly nor extensively discuss the notion of an “alternative constitution.” Thus, the reader is left alone to determine the credibility of this argument. Given the potentially serious implications of this contention, I would have preferred a more unambiguous discussion from the authors with their conclusions about the development of the “alternative constitution.” And, since the text is oriented toward individuals not familiar with American common law, a more specific discussion of this notion is essential to their understanding of the evolution and development of law in the United States.

The third section explores the evolution of American common law in the non-criminal sense. Twelve chapters are devoted to concepts such as property, contract, tort, and the American civil trial. The chapters in this section succinctly explain the various concepts and provide numerous details and specific cases to fully illustrate particular ideas. Yet, one chapter seems out of place: in Chapter Twenty-Three, the authors explore briefly the law and economics field. However, while the other chapters present relatively objective information, this chapter contains an overt bias against economic models of law. For example, Fletcher and Sheppard state that “economic theorists of law are lumpers rather than splitters. They see similarities but downplay conceptual differences. They blur the meaning of causation, of property, and of liability. . . Arguments of lumping generate a temporary sense of understanding. . . [Yet,] the price of this understanding is a widespread debasing of the language. Without precise language, careful thought and argument come to an end” (p.470).

I do not wish to engage in a debate over the law and economics field, nor point out the numerous contributions these analyses provide (which the authors neglect to discuss in great detail). I mention this chapter simply because its tone is significantly different from the remaining portions of the book. Throughout the text, the authors present information in an unbiased manner. Even the questions at the end of each chapter challenge the reader to formulate an opinion independent of the authors’ perspective. Yet, Chapter Twenty-Three deviates from this pattern, instead offering a normative argument against economic legal theories. In a volume that claims to help readers “seek an understanding of the legal system of the United States” (p.3), the overtly biased discussion presented in this chapter seems misplaced.

Finally, to help explain the development of criminal law in the United States, Fletcher and Sheppard rely on the 1987 New York state case, PEOPLE v. BERNHARD GOETZ. This notable incident (at least according to the U.S. news media) involved the shooting of four black youths by Goetz (a white male) on a New York subway. The authors provide an initial description of the facts surrounding this incident, to set the stage for a discussion of several questions, such as “What crimes do you charge against Goetz?” and “How do you defend Goetz against these charges?” In the course of this discussion (which continues across three chapters), the authors focus on a myriad of issues. First, they address the nature of the adversarial system in the United States [*620] and compare it to the historical European inquisitorial system and the more contemporary accusatorial system. Next they discuss various rules of evidence, the jury system, and separation of conviction from sentencing. The authors then conclude this section with a discussion of rules and norms related to self-defense, comparing the evolution of domestic regulations in the United States to the development of international law.

In conclusion, I believe this is a well-written volume that accomplishes its stated goal—to help familiarize readers with the American common law. It is a text that I will strongly encourage my students to read, if they wish to pursue a legal education.

CASE REFERENCES:

CIVIL RIGHTS CASES, 109 U.S. 3 (1883).

PEOPLE v. BERNHARD GOETZ, 68 N.Y.2d 96 (1987).

SCOTT v. SHEPHERD, 2 Blackstone’s Reports 892 (1773).

STRAUDER v. WEST VIRGINIA, 100 U.S. 303 (1879).

---

© Copyright 2005 by the author, Kirk A. Randazzo.

Continue Reading...

ALIENATED: IMMIGRANT RIGHTS, THE CONSTITUTION, AND EQUALITY IN AMERICA

by Victor C. Romero. New York: NYU Press, 2005. 320pp. Cloth $42.00. ISBN: 0-8147-7568-3.

Reviewed by John C. Blakeman, Department of Political Science, University of Wisconsin at Stevens Point. Email: John.Blakeman@uwsp.edu .

pp.612-616

The constitutional and legal rights of immigrants (both legal and illegal) in the United States are often not well defined, and certainly politically contentious. Victor C. Romero’s new book, ALIENATED, examines the intersection of constitutional law and immigration law and policy and argues that there is a “constitutional immigration law paradox” in which certain constitutional and legal rights are reserved exclusively for U.S. citizens, while at the same time claiming to treat all people equally and fairly regardless of their citizenship. As the NYU press release for the book also notes, Romero is a naturalized Filipino American, and thus “brings an outsider’s perspective” to immigration law.

Romero begins his discussion of the growing field of constitutional immigration law with a question: “to what extent should the Constitution protect noncitizens—immigrants, undocumented persons, tourists, foreign students—in the United States” (p.1)? Romero’s answer, and argument, is that the best reading of the Constitution is one that provides as much parity as possible between citizen and noncitizen, regardless of formal immigration status. He bases his analysis of the Constitution on two canons of critical race scholarship. The first, antiessentialism, holds that “the Constitution should be read so as not to assume that all people are alike just because they look alike. . . [Thus] one cannot divine the shared characteristics of a group based on a single real or perceived trait like race or gender” (p.5). The second approach is antisubordination, which “asks whether the challenged government action works to further the oppressive status quo or undermine it . . . [H]ence, an ‘antisubordination’ reading of the Constitution would work to protect foreign nationals who, because of their citizenship status, already enjoy fewer rights than their U.S. citizen counterparts” (p.5).

Using principles of critical race theory, and more broadly critical legal studies, Romero’s methodology is multidimensional and interdisciplinary and relies on three main sources to justify his equality-based reading of the Constitution. First, Romero relies upon his own experiences as an adult immigrant and naturalized citizen. Second, he relies on non-constitutional areas of law to highlight arguments about constitutional law. Finally, he uses “nonlegal perspectives such as history and social psychology.”

The first chapter places traditional constitutional approaches to immigration law in the context of Romero’s personal experiences navigating the tricky federal bureaucracy maze that handles immigration and naturalization issues. As Romero notes, much of immigration law is based on the Supreme Court’s historic deference to Congress and the Executive Branch, and the Court has [*613] historically viewed legislative and executive power over immigration in plenary terms. Romero suggests that a “strong disconnect exists between people’s perceptions of how immigration law operates and how it works in fact” (p.17). Here, Romero uses his own personal experiences to illustrate his point. For example, a Foreign Service officer in the Philippines refused to renew his visa, even though has was a full time student at a law school in the United States. Romero speculates that his visa was cancelled because the officer used his Philippino citizenship as a factor in determining that he was an overstay risk—he might remain in the United States after his studies were completed. If true—and Romero admits this is speculative—the Foreign Service officer violated an antiessentialist reading of the Constitution. As he puts it, “while national origin and race are not synonymous, we should be more skeptical of their intersectionality when used by the government to perpetuate subordination” (p.20). Romero next uses his interaction with a Latina INS official, when applying for citizenship, to illustrate further an antiessentialist reading of the Constitution. After arduous grilling by the INS officer about Romero’s marital status (he is married to an American citizen), he did get his citizenship application approved. The process prompts Romero to ask “why could not that Latina INS officer been more sympathetic to me? Why could she not have thought about her own ancestor . . . [W]hy would she treat me as the other?” In his view, his interaction with a Latina INS officer who was somewhat skeptical about his citizenship application shows how “multiculturalism (here, the hiring of a Latina to serve as an INS officer) can be coopted by the dominant power to perpetuate . . . subordination” (p.20).

Professor Romero next discusses constitutional immigration law in the context of several different policy areas. Chapter Two focuses on immigrants and the war on terrorism. Here the author tackles issues such as the racial profiling of Arabs and Arab-Americans after the September 11 terrorist attacks, the roundup and interrogation of thousands of people of Middle Eastern heritage, and the use of immigration policy and deportation as an antiterrorist device. Romero points out the danger of “assuming that the terrorist who belongs to one group overlooks the possibility that the terrorist could come from the so-called nonterrorist group” (p.35). Thus, the Oklahoma City bombing in 1993 and the anthrax attacks after 9/11 show that terrorists “can very easily be a member of the in-group capitalizing on public scrutiny of out-group behavior,” especially since after the Oklahoma City bombing many terrorism experts publicly suspected Arab terrorists (p.35). Romero concludes that “the underpolicing of U.S. citizen terrorists and the perpetuation of invidious stereotypes” in current immigration policy undermine equality and “perpetuate essentialist notions of the nonwhite, disloyalist foreigner, while simultaneously strengthening the oppressive status quo” (p.40). This difference between domestic and foreign terrorists, Romero suggests, leads to a more activist role for federal courts in ensuring and protecting the constitutional equality of immigrants during a time of heightened suspicion.

Romero next discusses immigration issues that impact families in Chapter Three. The Child Citizenship Act of [*614] 2000 (CCA) automatically confers citizenship on foreign-born children adopted by U.S. parents. He compares the CCA, which was popular and quickly passed by Congress, to the Family Reunification Act (FRA), which has languished in Congress since 1999. As he puts it, the CCA “enjoyed broad bipartisan support chiefly because it helped bridge the still existing psychological gap between adopted and biological children, at no apparent cost to the government,” and the law “virtually guarantees” that foreign born adoptees will be allowed to remain in the United States with their adopted families (pp.53-54). The CCA thus equalizes the citizenship status of biological and adopted children and ensures that the threat of deportation of adoptees no longer exists. Accordingly, in Romero’s terms, the law achieves two types of family unity.

The proposed FRA is different. It would remove certain mandatory deportation rules and restore the Attorney General’s discretion in cases where a noncitizen parent with a citizen child is deported. For Romero, issues of race, class, and gender help explain why Congress was so quick to support the CCA, yet so hesitant to even debate the FRA. Since most adults adopting noncitizen children are white, “it is easy to see why the CCA was so positively received. Many of the white senators and representatives easily identified with the white U.S. citizen parents who wanted to make sure their nonwhite adopted children were U.S. citizens” (p.61). Thus, “most congresspersons probably have different narrative pictures of the ‘citizen householder family’ and the ‘immigrant householder family’: a ‘citizen’ family is one headed by a middle-class, white U.S. citizen regardless of the color the children, while and ‘immigrant’ family is one headed by a poor, brown or yellow noncitizen regardless of the color of the children. If this racial and class divide along citizenship lines underscores the CCA narrative, it makes sense that these privileged lawmakers would be able to more easily identify with the U.S. citizen parents than with the immigrants, and therefore be easily persuaded of the CCA’s merits” (pp.61-62). Importantly, Romero’s analysis attributes much to the individual and collective motivation of members of Congress with little empirical data to support his assertions. His scrutiny of the lawmaking process leading up to passage of the CCA and the languishing of the FRA would benefit from research into how interest groups affected the process too. His class, race, and gender analysis may hold to a point, but the lawmaking process is not so reductionist as he suggests.

Turning away from adoption and other family issues, Romero explores in Chapter Four a hypothetical floor for constitutional rights of undocumented immigrants. Using a comparison between the Fourth Amendment’s right to be free from unreasonable searches and seizures and premises liability law in torts, Romero argues that the constitutional protections of the Fourth Amendment should extend to noncitizens: “just as we would require tortfeasor landowners to compensate persons injured on their property irrespective of their relationship to the plaintiff, our constitutional law should provide Fourth Amendment protections against the government regardless of the claimant’s immigration status” (p.69). Since tort law and immigration both seek to deter undesirable conduct, the “parallels between the two” are clear: [*615] “the landowner in tort law is analogous to the U.S. government in immigration” (p.83). Thus, the invitee and licensee in tort law, to whom the landowner owes a reasonable duty of care, are analogous to the legal permanent resident and legal nonimmigrant, respectively. Here, Romero looks specifically to tort law regimes in New York and California, two states that have abolished property distinctions (invitee, licensee, trespasser) and now treat all injured entrants equally. The question in liability law then becomes: did the landowner adhere to a general due care or “reasonableness” standard? Romero suggests the same framework for the Fourth Amendment. “When the Fourth Amendment is at issue in a case, courts should attach less significance to the immigration status of the noncitizen, and should focus instead on how the right should apply in the individual case, taking the immigration status of the noncitizen as one factor among many” (p.78). This “floor” of constitutional rights will support the idea that “the personhood of noncitizens” is more important that “their nonmembership in the U.S. polity.” This approach will also return to the appropriate Fourth Amendment focus on deterring unconstitutional government conduct. Romero refers to recent federal district court cases and a Supreme Court decision that suggests his fears about the Fourth Amendment’s inapplicability to illegal immigrants is real, and not hypothetical. To be sure, it is easy to anticipate that concerns over the guarantees of the Fourth Amendment in the context of immigration law and policy will arise with increasing frequency with the ongoing war on terrorism, and indeed Romero offers an interesting and substantive approach to dealing with these concerns.

In Chapters Five and Six Romero tackles two other issues: the viability of a constitutional or statutory right to financial aid for higher education for undocumented immigrants, and the hypothetical issue of whether the federal government can constitutionally deport the foreign same-gender partners of U.S. citizens solely based on their sexual orientation. As regards the first issue, Romero notes that the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) allows states to limit access to financial aid to undocumented immigrants. As such, the law “violates the quality principles of antiessentialism and antisubordination by allowing states to favor U.S. citizens over undocumented nonresidents despite the fact that in many instances the latter might be more productive, and hence more worthy, recipients of state largesse” (p.97). Romero offers a detailed critique of IIRIRA provisions, and advocates passage of the Student Adjustment Act, introduced into the House of Representatives in 2003, which would allow undocumented immigrants the same opportunities for higher education as lawful permanent residents.

Romero argues that recent public opinion polls (from 2003) coupled with Massachusetts’ gay marriage law, Vermont’s civil union law, and the attractiveness of American educational institutions to foreign students, implies that “not only is there a greater probability of same-gender binational relationships developing today than in the past,” but there may also be an “increase in the number of formal, government-sanctioned relationships among binational same-gender partners” (p.109). Although he recognizes that mass deportation of same-gender partners is hypothetical at this point, it is still conceivable: [*616] “if . . . a conservative backlash against homosexuals is imminent, what better way to constitutionally implement such an antigay policy than to utilize the immigration laws—laws that have been subject to minimal judicial scrutiny—to selectively deport foreign same-gender partners of U.S. citizens” (p.113)? To be sure, U.S. circuit courts have sustained a federal agency’s interpretation of immigration law to grant “immediate relative” status to heterosexual spouses only, and although the Supreme Court has addressed gay rights issues recently, it has not dealt with a case concerning the deportation of same-gender noncitizens. However, Romero speculates that the Supreme Court, as currently constituted, “may be unwilling to tolerate much stereotypical, animus-based discrimination against homosexuals outside the confines of a First Amendment debate” (p.137). Based on his detailed and critical reading of gay rights cases, such as ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003), Romero posits that “while it is often reluctant to do so, the Court will intervene to elevate the rights of gays and noncitizens if there is no good countervailing reason to do otherwise” (p.157). Thus, Romero essentially gives a detailed brief about how current Supreme Court precedent can be used to protect same-gender immigrants in a relationship with U.S. citizens from deportation based only on their sexual orientation.

Romero’s concluding chapter discusses diverse “theoretical and practical alternatives to the status quo that advance the cause of equality by promoting both antiessentialism and antisubordination” (p.161). Romero ends with an interesting argument for more state and local control over immigration, suggesting that the increase in local and state resolutions against the Patriot Act and the increasing nationwide movement to accept as valid identification the matricula consular cards issued by the Mexican governments to its nationals working in the U.S. indicate that state and local advocacy to protect the rights of immigrants and noncitizens may be useful and effective.

In all, ALIENATED is a wide-ranging work that critiques and assesses constitutional immigration law across a diverse range of policy areas. Thematically, Romero’s focus on antiessentialist and antisubordination readings of the Constitution help give coherence to the book, and his sustained critical assessment of current, potential, and hypothetical constitutional issues surrounding immigration law are thought provoking. Readers will find ALIENATED’s critical take on immigration law and policy useful for supplementing more conventional, policy-oriented research. The book is probably best suited for graduate level seminars on judicial policymaking or courses on immigration law and politics. Parts of the book will certainly be of value to law-related courses that cover terrorism, law and gender, family law, and critical legal studies.

CASE REFERENCES:

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

LAWRENCE v. TEXAS, 123 S.Ct. 2472 (2003).

---

© Copyright 2005 by the author, John C. Blakeman.

Continue Reading...

COURTING CONFLICT: THE ISRAELI MILITARY COURT SYSTEM IN THE WEST BANK AND GAZA

by Lisa Hajjar. Berkeley, CA: University of California Press, 2005. 335pp. Hardback. $60.00/£38.95. ISBN: 0520241932. Paper. $24.95/£15.95. ISBN: 0520241940.

Reviewed by Menachem Hofnung, Department of Political Science, The Hebrew University of Jerusalem. Email: msmh@mscc.huji.ac.il.

pp.609-611

Contrary to certain traditional dogmas suggested by some military theories which state that law and warfare are a contradiction per se, law – as a component of an armed conflict – is becoming increasingly more important than ever before. Arguments based on humanitarian international law of war are becoming significant constraints on policy decisions, because governments are now judged according to their compliance with international laws during armed conflicts.

Lisa Hajjar, a professor in the Law and Society program at the University of California, Santa Barbara, spent several years during the 1990s conducting her research in both Israel and the occupied territories, on Israel’s military court system. Hajjar describes the military courts as the centerpiece of Israel’s apparatus of control in the West Bank and Gaza since 1967. Her central argument maintains that the Israeli state has made prodigious use of law to maintain and legitimize its rule over Palestinians in the West Bank and Gaza, as well as to punish and thwart resistance (p.49). The military court system has served as the important foundation within the broader range of governing institutions and practices in which Palestinians are controlled by the state of Israel, subjected to restrictive codes of conduct, and physically immobilized through the use of mass arrests, closures, curfews, checkpoints and prisons.

Following the takeover of West Bank and Gaza in the 1967 war, Israel established a unique permanent legal system under the disguise of temporary occupation: by abstaining from officially incorporating the territories into Israel, the state was able to exercise its control over the territories and avoid the possible implications of granting the Palestinian residents full equal rights, thus creating a bi-national, instead of a Jewish, state. This new legal structure was built on four systems of judicial tribunals operating within the Occupied Territories: first, the system of ordinary courts with general jurisdiction and which had existed in the Territories until 1967; second, the system of military courts, established in 1967; third, the system of religious courts; and fourth, that of municipal courts operating under different laws for Jewish settlements and Palestinian municipalities. Adding to this legal entanglement is the fact that administrative acts of the Military Commander are subject to judicial review by the High Court of Justice (Hofnung 1996, at 225; Shamgar 1982). The uniqueness of the military courts, as elaborately described throughout Hajjar’s book, lies in the fact that since the late 1970s, the courts try Palestinians [*610] only. While all official roles are filled by Israeli citizens, the military courts in the Occupied Territories – which differ from military courts in Israel itself – try non-citizens (West Bank and Gaza residents) only.

COURTING CONFLICT is, perhaps, the most detailed book on the Israeli military court system. Despite the existing abundant body of literature concerning the Israeli legal system of occupation, studies usually assess the larger picture and devote much space and attention to high profile litigation before the Israel Supreme Court sitting as High Court of Justice (Dotan 1999; Kretzmer 2002; Shamir 1990). Only a small number of studies analyze – rather than describe – Israel’s controlling machinery in the West Bank and Gaza Strip (Shehadeh 1988). While carrying out her research, Hajjar conducted in-depth interviews with dozens of Israelis and Palestinians about their personal experiences and practices, in her effort to explain the means by which the system functions and the ways by which it has affected the conflict.

Despite its theoretical soundness, however, Hajjar’s book is not an easy read: coming out of an updated and rewritten Ph.D. thesis, it opens with long and detailed theoretical 80-page introductory chapters, only after which the author presents her empirical research and findings, which are her most substantial and important contribution to the growing literature on regimes of occupation and domination of conquered peoples.

Hajjar’s field research proves to be her central point of strength: the long hours spent in attending military court proceedings, interviewing judges, prosecutors, defense lawyers, defendants, court translators, and scholars, proves successful in delivering rich and detailed accounts of the internal workings of the system, and the ways by which it affects the life of Palestinians residents in the Occupied Territories. The two chapters that throw light on issues that have been almost absent from previous research on Israeli military courts—the extensive use of plea bargains, and role played by court translators, mostly Arabic speaking Israeli citizens of Druze origin—are particularly important. The Druze Identity is a distinctive religious/cultural designation. The Druze are a schismatic sect of Shi’i Islam, but in Israel they are regarded as non-Arabs and are drafted into the army. Because Arabic is their first language, they fill the role of translators in courts where defendants speak Arabic but proceedings are held in Hebrew. Hajjar provides a wonderful example of their mixed identity by quoting from her interview with one translator: “When I am in Tel Aviv I am a Jew. When I am in Rame [a mixed town in Northern Israel] I am an Arab. When I am in Julis [a Druze village] I am a Druze” (p.152).

Hajjar goes to great lengths in her attempt to describe the Israeli-Arab conflict as a struggle for human rights generally associated with health, education, speech, association, and movement. This assertion, however, is not supported by Hajjar’s findings. Indeed, since 1967 most Palestinians have placed statehood aspirations above all other goals. As Hajjar herself observes, “tendencies across the region are to interpret the stakes of the conflict in zero-sum terms; Palestinian victory [*611] was envisioned as a thorough defeat of Israel and the creation of a Palestinian state in all of historic Palestine. Israeli political discourse also propounded zero-sum visions” (p.53).

Despite the several flaws one may find in Hajjar’s book, they by no means diminish its value. I found the book to be provocative and have been challenged to rethink the means by which law in general, and a legal system in particular, can be manipulated for political and national purposes. Hajjar portrays the Israeli military courts as a brute system of control that manipulates legal terms and procedure to achieve national goals. Indeed it is a dark and unfavorable picture, yet it faithfully serves as both reminder and a warning as to what can happen to a democratic society that is unable to bring an end to a long occupation of other people.

REFERENCES:

Dotan Yoav. 1999. “Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the Israeli High Court of Justice during the Intifada.” 33 LAW & SOCIETY REVIEW 319-363.

Hofnung, Menachem. 1996. LAW DEMOCRACY AND NATIONAL SECURITY IN ISRAEL. Aldershot: Dartmouth Publishing Co.

Kretzmer, David. 2002. THE OCCUPATION OF JUSTICE: THE SUPREME COURT OF ISRAEL AND THE OCCUPIED TERRITORIES. Albany, NY: State University of New York Press.

Shamgar, Meir (ed.). 1982. MILITARY GOVERNMENT IN THE TERRITORIES ADMINISTERED BY ISRAEL, 1967-1980: THE LEGAL ASPECTS. Jerusalem: The Faculty of Law, The Harry Sacher Institute for Legislative Research and Comparative Law, The Hebrew University.

Shamir, Ronen. 1990. “Landmark Cases and the Reproduction of Legitimacy: The Case of Israel’s High Court of Justice.” 24 LAW & SOCIETY REVIEW 781-805.

Shehadeh, Raja. 1988. OCCUPIERS’ LAW — ISRAEL AND THE WEST BANK (rev. ed.) Washington D.C.: Institute for Palestinian Studies.

---

© Copyright 2005 by the author, Menachem Hofnung.

Continue Reading...

CORE QUESTIONS OF COMPARATIVE LAW

by Bernhard Grossfeld (translated by Vivian Grosswald Curran). Durham, NC: Carolina Academic Press, 2004. 282pp. Paper. $35.00. ISBN 0-89089-737-9.

Reviewed by Susan M. Sterett, Department of Political Science, University of Denver. Email: ssterett@du.edu .

pp.607-608

Bernhard Grossfeld is Professor of Law at the University of Munster, and he has written on commercial and international law. He has spent time in American law schools, including studying at Yale and teaching at NYU. He is well-situated to contemplate questions of comparison. CORE QUESTIONS OF COMPARATIVE LAW is a wide-ranging meditation on the possibilities of translation and barriers to it in law, exploring dimensions of language, numbers, religion, and concepts of time.

Grossfeld’s is a work of general jurisprudence within a continental tradition, not focused on particular legal questions. I ask rather more mundane questions than does Professor Grossfeld, and I asked myself what he understood the point of comparison to be. To some political scientists, the point is to explain the emergence of different rules or legal regimes. To others, it is to evaluate a general hypothesis about the functions of courts or the mobilization of rights under different conditions. For some lawyers, it is to contemplate borrowing legal rules to find “the best” rule across cultures. Grossfeld has the latter in mind.

Professor Grossfeld’s wide-ranging illustrations borrow from the Old and New Testaments (e.g., pp.59-60), from Shelley’s (p.246) and Goethe’s poetry (e.g. pp.60-61), and from statements from Eleanor Roosevelt. He uses these statements to illustrate profound differences between cultures, which he would argue makes the enterprise of comparison dubious. If Westerners have a linear concept of time and Easterners have a non-linear concept of time (pp.210-211), how can we talk to each other about legal rules?

The question illustrates an assumption embedded in the book. Because Grossfeld reaches broadly in scope, he treats cultures as internally homogeneous and unchanging: Westerners do things one way, Easterners another; the Chinese with one concept of writing as a result of physical crowding, “we” with another (pp.171-173). Judeo-Christian religions have a universal sense of order as a result of having one god (p.232). Cultural anthropologists have called this approach to culture into question. If it ever operated, it is hard to see how it does today, with consultants flying around the world to design commercial legal structures and constitutions. Furthermore, forces of change across cultures can bring similar results: factory wage labor works on a different concept of time than agricultural work, and that is as true in China today as it was in nineteenth century England. This point seems particularly worth attending to with the supranational forces of production that, for example, press the Chinese toward a regularized and [*608] predictable administrative enforcement mechanism for intellectual property law.

Differences in approaches to academic work can be a matter of intellectual taste: the elegance of addressing broad themes, such as religion and time, could be appealing enough to make up for the lack of discussion of real legal issues—who supports addressing them, how they are addressed, and how that changes over time and across countries. However, it is striking to see a text on problems of comparison (as in borrowing of law) when the European Court of Human Rights regularly addresses whether or not to allow differences among countries on human rights questions, the English incorporate supranational human rights law into their own law, and the European Court of Justice works on harmonization. In addition, transnational corporate lawyers blur legal boundaries all the time. While borrowing legal rules from one country and inserting them into another is unlikely to have the expected effects, I would lean more toward a political analysis, one that looks at domestic and transnational actors and how they interpret legal rules and the resources they have to make their interpretations stick. Professor Grossfeld does briefly note that it is within Europe that borrowing is likely to be most effective, but he argues that this is so, because of a common family of languages and a shared geography (p.240). Perhaps analysis at that abstract level could be helpful to those interested in general themes in jurisprudence, who may be less interested in the “who what where” of the real changes that are happening around the world. Grossfeld’s concern is simply not to illuminate what the European Court of Justice has meant for transformation, or why asylum policies might converge even apart from formal enforcement. But it is in those changes that comparison comes to life.

In the end, Professor Grossfeld concludes that people are fundamentally the same “deep down” (p.239), which makes the enterprise of comparison possible. Although there are some intriguing issues embedded throughout, I would not recommend this book to comparative law scholars engaged in traditional political and legal research.

---

© Copyright 2005 by the author, Susan M. Sterett.

Continue Reading...

JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW

by Allen Buchanan. Oxford: Oxford University Press, 2004. 520pp. Hardback. $35.00 / £25.00. ISBN: 0198295359.

Reviewed by David Mednicoff, Department of Legal Studies and Center for Public Policy and Administration, University of Massachusetts – Amherst. Email: mednic@legal.umass.edu .

pp.602-606

These are dark times for contemporary international law. While the central institution in the global legal order, the United Nations, moves slowly to respond to internal and external critiques of its efficacy, selective violation of cardinal principles about the use of force and torture by the U.S. threatens the creeping progress of the international legal regime since the end of World War II. At the same time, even some of the best friends and erstwhile practitioners of the genuinely idealistic and influential normative international trends of human rights and humanitarianism are having doubts about the projects in which they have engaged (e.g., Kennedy 2004; Rieff 2002). Both friends and enemies of a globalized order can agree on the troubles besetting international law as its two principal architects, Western Europe and the U.S., apparently overlap in the renewed vigor which their citizens attach to nationalistic politics.

Into this context steps Allen Buchanan, a distinguished philosopher who has thought and written extensively about state secession and other issues that connect legal theory and politics. His new creative and insightful book aims to provide philosophical grounding for reform of international law based on coherent tenets, many of which contrast starkly with what he demonstrates are imperfect assumptions of contemporary global order. In particular, Buchanan departs from most discussions of his subject by rejecting explicitly the primacy of national sovereignty as the justification and touchstone of international law.

Buchanan’s theory is fairly easy to restate, in part because the author himself is well-aware of the need to summarize and recapitulate his major points (e.g., pp.1-13). The book is organized into three main parts, each devoted to the elaboration of one of the three moral foundations contained in the book’s title. In the first part, Buchanan posits that the major moral foundation for international law should be the collective fulfillment of what he calls the Natural Duty of Justice, by which he means the obligation of people to help create structures to provide all individuals with access to just institutions (p.86).

Buchanan defines justice more specifically as the protection of basic human rights. In making human rights so central to his theory, he is well-aware that some of the rights enumerated in the Universal Declaration of Human Rights remain contested and controversial, particularly socioeconomic rights (pp.222-224). Buchanan has both a pragmatic and a philosophical response to this problem. Pragmatically, he [*603] suggests that it is sufficient to posit a coherent notion of justice as human rights to include only those rights that are uncontroversial. Philosophically, he argues that there is little actual reason to favor political over economic rights, often dichotomized as negative and positive rights (pp.195-200). The author’s specification of both a practical solution to understanding justice in human rights terms and an analytical, aspirational argument as to what a morally consistent position on rights should be is typical of the way he links political practice and ideal philosophy throughout the book.

If justice is defined as the defense of basic human rights, and international law should be evaluated in terms of its realization of this idea of justice, the notion of what constitutes political legitimacy – the subject of the book’s second part – follows rather directly. Buchanan contends that only a political entity that protects its population’s basic human rights – i.e., that satisfies his idea of a minimal standard of justice – is legitimate in exercising political power. In developing this concept of legitimacy, the author is clear about the importance of distinguishing between the legitimacy of a state in general and the legitimacy of a particular government, as well as the significance of differentiating political legitimacy and political authority. While it might seem counter-intuitive to argue that political authority must satisfy more stringent conditions than legitimacy (p.237), this is in line with Buchanan’s lack of interest in discussing political systems that claim or are believed to be legitimate (p.235).

Thus, the second part of the book focuses upon how a government satisfies an external, moral standard of political legitimacy based on the first part’s elaboration of justice as the preservation of basic human rights. As he did in the first part, Buchanan takes care to articulate his concept of legitimacy in a way that is not so idealized as to preclude its satisfaction by any current political system (p.236). Although the full realization of justice requires democratic authorization (pp.249-257), absent such authorization, a government can be legitimate as long as it protects credibly the most basic human rights (pp.259-260). Part Two also extends Buchanan’s idea of legitimacy as the promotion of justice from individual national governments to the international legal system as a whole (pp.289-327).

The third section connects the earlier elaborations of justice and legitimacy to the question of state self-determination and secession. Again, one simple principle emerges from Buchanan’s elaborate analysis. International law should only support a right to secession when it is a remedy of last resort in the context of a state’s inability or unwillingness to prevent serious violations of basic human rights (pp.331-332). The link between the author’s idea of justice as human rights and state legitimacy as the support of justice is evident. However, the detailed discussion of why secession should be restricted to the remedial right described in this part of the book seems nonetheless somewhat tangential to the broad task of developing a general moral theory of international law in two ways.

First, the amount of prior work that Buchanan has done on state secession means that this part of the book sometimes elaborates on specific points [*604] and responds to critics’ comments on his previous publications in a way that does not always tie clearly into the ambitions of the present study (e.g., pp.369-373). Second, it is not always obvious, apart from the author’s expertise, why secession as a topic receives so prominent in a position in his philosophical grounding of international law. The general use of force by states or the problem of international law’s institutional growth and enforcement are both pre-eminent concerns, to which Buchanan might have devoted a more central role than parts of his final chapter (pp.440-474). To be fair, the author states openly at the beginning of the book that using the issue of state secession as the inspiration and cornerstone for his construction of a moral theory of international law has both advantages and disadvantages (pp.1-2). I still found the third section of the book taking me away at times from the central thrust of Buchanan’s ambitious project.

Perhaps even more noteworthy than the three broad principles that Buchanan develops for international law are three potential foundations which he explicitly and insightfully rejects – (1) the primacy of states’ national interest, (2) the importance of consent by a majority of national governments, and (3) the immorality or imprudence of violating international law when trying to reform it.

The first of these issues is perhaps most forcefully discussed. Buchanan is relentless in refusing to see a power-maximizing notion of national interest as determinative of states’ approaches to international law. He does this for a simple reason – that each state in the world system has a right to formulate its international legal commitments does not mesh well with a universal global morality based on the Natural Duty of Justice that gauges the legitimacy of political orders. Thus, the book argues against two related positions – the Realist view that the international legal order cannot and should not be based on morality (pp.31-45), and the statist contention that whatever a particular government decides to be its global policies is deserving of respect and primacy in international law (pp.8; 106-117).

Buchanan’s attacks on national interest and Realism are grounded in tight analytical logic and reference to empirical trends. As I suspect he is aware, his thoughtful insights on why morality is a more cogent foundation for states’ international legal behavior than self-interest and power maximization are unlikely to persuade many who take the latter as axiomatic. The book tries to address this by engaging with some of the political science literature on Realism, but this is more often done through quick references to influential works (e.g. p.29, fn.14), than through detailed engagement with particular international relations theorists’ work (e.g. the discussion of Morgenthau, pp.108-112).

Buchanan’s possibly most controversial position is to deny the importance of popular consent as a principle for state legitimacy and of the consent of states as the basis for the contemporary international legal order. The core of the argument here is an attack on Lockean consent theory (pp.240-249), that represents the book at its most compelling and creative. [*605]

Buchanan is similarly enlightening in rejecting Legal Absolutism, or the perspective that legal reform is illegitimate if it is based on breaking that law. The focus here is mainly on the need for humanitarian intervention to protect basic human rights, even though such intervention is generally against international law (pp.440-446). The strength of this analysis is the connection that the author makes between the moral justice of international legal reform and the empirical inadequacy of current international legal institutions and mechanisms for change (pp.446-459). This type of connection requires a delicate balance of argument and example, which is very difficult to carry off effectively.

This raises my only real concern about the book. Though useful and logical in many respects, Buchanan’s efforts to move between a method, grounded primarily in ethical and philosophical argument, and a praxis of reformist international legal morality with some concessions to empirical reality, may undermine the book’s persuasive power for some readers. The author’s approach invites disagreements about when it is sensible to reason from empirical facts as opposed to abstract logic.

For example, given the centrality of human rights to the book’s thesis, more readers might be convinced of the importance of morality and justice in the international system if it were grounded more in the empirical realities of global interdependence (e.g., Held et al. 1999, at pp.424-452), and creeping consensus over the primacy of basic normative rights (e.g. Falk 2003, at Chapter 5), rather than in something as abstract and contestable as the Natural Duty of Justice. This is particularly the case since Buchanan asserts that this Duty itself is partially founded on facts (p.87). Although he takes great pains to connect ideal theory to non-ideal principles that are relevant to existing global order (pp.64-68), those who doubt the persuasiveness of his moves between these two areas on particular points may find themselves doubting the general argument.

I offer this observation because I am convinced both by many of Buchanan’s claims and the importance of the task he sets for the book; I would like for his theory to have as wide an influence as possible. Precisely because of the current salience of the book’s issues and the potency of its conclusions, I wish that it were more accessible to a variety of undergraduate and general readers, and, especially, to international law practitioners and prominent policy makers. Indeed, I must confess my belief that, even faculty members who are trained in international law or international politics may find parts of the book slow-going and rather abstract in reasoning style, despite clear, occasionally lively prose.

I do not mean to conclude that the significance of Buchanan’s book is weakened because he writes from the vantage point of applying political philosophy to public policy. Indeed, much of the integrative integrity and creative force of the author’s achievement comes from his interdisciplinary background and careful analytical logic. This is, in short, a work that I admire tremendously and embrace as likely to be influential to scholars and advanced graduate students. [*606]

Yet I also hope that the book will inspire other scholars to consider the issues that it raises and the heresies it embraces in more focused follow-up studies. Should this happen, perhaps Buchanan’s views will reach the varied audience in the United States and elsewhere that needs new reasons these days to take seriously the idea that international law can and, indeed, must serve to advance justice with a capital “J.”

REFERENCES:

Falk, Richard. 2003. THE GREAT TERROR WAR. New York: Olive Branch Press.

Held, David, Anthony McGrew, David Goldblatt, and Jonathan Perraton. 1999. GLOBAL TRANSFORMATONS: POLITICS, ECONOMICS AND CULTURE. Stanford: Stanford University Press.

Kennedy, David. 2004. THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM. Princeton: Princeton University Press.

Rieff, David. 2002. A BED FOR THE NIGHT: HUMANITARIANISM IN CRISIS. New York: Simon and Schuster.

---

© Copyright 2005 by the author, David Mednicoff.

Continue Reading...