SORCERERS’ APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT

by Artemus Ward and David L. Weiden. New York: New York University Press, 2006. 352 pp. Cloth $39.00. ISBN 0814794041.

Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University. E-Mail: martinek [at] binghamton.edu.

pp.769-774

Each year, the nine justices of the United States Supreme Court begin anew the process of selecting the men – and, increasingly, the women – who will serve as their indispensable professional helpmates for the following term. The crème de la crème of young lawyers, typically hailing from the very best law schools and possessing the most prestigious academic and professional qualifications, vie for the honor of serving as a clerk for one of the justices. Undoubtedly the dream job for virtually every aspiring attorney (and not a few members of the professoriate), clerking on the Court is desirable both in its own right as one of the most unique and interesting experiences possible for those pursuing a legal career and as a credential that will open professional doors far into the future. Some observers, however, have become concerned about whether these eager, young legal minds exert too much influence on the Court’s decision making process. In their meticulously researched and carefully written book, Artemus Ward and David L. Weiden mine a variety of sources – including original data from a mail survey of a substantial sample of former Supreme Court law clerks – and bring to bear an impressive array of evidence regarding the nature and extent of the law clerks’ influence.

The crux of the Ward and Weiden argument is that changes in how the justices go about their business have transformed law clerks from merely apprentices furthering their legal education to important Supreme Court actors in their own right. Specifically, the authors assert that, collectively, the clerks exert substantial influence on the certiorari process through the cert pool. Further, though there is little evidence to suggest that the clerks influence the outcomes in Supreme Court cases, according to Ward and Weiden, the clerks’ influence is evident in the structure, style, and substance of Court opinions. In arriving at their conclusions, the authors eschew both purely benign and purely malign portraits of law clerks and their influence: “[W]e suggest that the influence of the clerk is neither negligible nor total. There is no question that clerks provide a vital role in assisting the Court with its workload. However, it seems equally plain to us that some aspects of the role of the modern law clerk tread perilously close to what many critics see as an unconstitutional abdication of the justices’ duties” (p.246).

Given the relative paucity of information about the role of law clerk and how this position came to be, Ward and Weiden wisely begin by tracing the origination and subsequent institutionalization of the Supreme Court law clerk. The [*770] conventional wisdom is that the Court’s increasing workload prompted the creation of the law clerk. While Ward and Weiden agree that workload pressures can help us to understand why the number of clerks has increased over time, they suggest that the origination of the law clerk position is more properly understood as a function of a particular model of legal education. This model, an apprenticeship model imported from England, involved a general education followed by a legal education through reading legal treatises and commentaries under the supervision of a practicing attorney. Supreme Court law clerks were originally just such apprentices, and their duties were primarily secretarial in nature. In fact, Ward and Weiden characterize the 1882-1918 period as the secretary regime, which subsequently gave way to the research assistant regime (1919-1941) when law clerks provided editorial and research services for their justices. The burgeoning caseloads faced by the justices transformed the clerk role yet again, leading to what Ward and Weiden refer to as the junior associate regime (1942-1969). As junior associates, law clerks continued to provide editorial and research assistance, but they also became “active decision makers(s)” (p.23), scrutinizing increasing numbers of cert petitions, writing bench memos analyzing cases and making recommendations, and contributing more substantially to the opinion writing process.

The contemporary regime (1980-present) the authors dub the sorcerers’ apprentices regime. Indeed, law clerks are even more influential in the gate-keeping process by which petitions are accepted or (more likely) rejected for review by the Court. Of particular note is the increased use of the cert pool, a process in which each participating justice’s chambers is given a share of the certiorari petitions and is responsible for writing a memo on each of them, to be shared with the other chambers. Though this practice enhances efficiency by reducing duplicative effort across the chambers, it has the concomitant effect of reducing the likelihood of independent review by more than one clerk (and more than one justice’s chambers). The sorcerers’ apprentices regime is also marked by increased reliance by the justices on clerks for opinion writing functions. Although, as Ward and Weiden acknowledge, there is considerable variation across chambers as to exactly how the justices use their clerks, on average law clerks are more likely to write first (and sometimes final) drafts of opinions and do so with less and less supervision by their justices.

After tracing the trajectory of change in the clerk role, Ward and Weiden spend a great deal of time, to the reader’s considerable benefit, discussing the selection of Supreme Court law clerks. In some regards, this chapter (Chapter 2) is the most readable in a very readable book. The details of historical and contemporary processes as documented by Ward and Weiden are simply fascinating, and the authors’ extensive use of historical documents (e.g., correspondence between and among justices, their professional colleagues, and applicants) enriches the story they tell. The authors consider the selection of law clerks from every possible angle. [*771] They consider changes in the applicants’ approaches; for example, whereas prospective law clerks previously applied to a single justice, it is most common now to apply to all of the justices. They also consider differences in the criteria and procedures used by the justices for the actual selection. For example, whereas all of the justices evidence partiality toward applicants from the most prestigious schools, some are also interested in regional ties. And, while some (especially contemporary) justices have developed very formal, routinized screening processes involving groups of former clerks, others rely more heavily on so-called feeder judges who recommend their own clerks as candidates to the Supreme Court positions.

Of special interest is what Ward and Weiden document regarding gender and race. The first female law clerk, Lucille Lomen, who received her legal education from the University of Washington Law School, served in the chambers of Justice Douglas during the 1944 term. More than two decades passed before another woman was selected, but, commencing with the 1971 term, the Court has never been without a female clerk working for at least one of the justices and, in the most recent terms, just under 40% of all law clerks have been women. As Ward and Weiden note, some justices have been more inclined to hire women (e.g., Justices Breyer and O’Connor), while others have selected only a very few (e.g., Justices Kennedy and Scalia). Ward and Weiden also consider race. The first African American clerk was William T. Coleman, Jr., who hailed from Harvard Law School and was selected by Justice Frankfurter. Twenty years later, the second African American law clerk, Tyrone Brown, was appointed. Collectively, more women than African Americans (including African American women) have been selected by the justices.

In the third chapter, Ward and Weiden dissect the clerk’s role in the certiorari process. In doing so, they pay particular attention to the emergence of the dead list (the list of cases identified by the Chief Justice as not meriting discussion in conference), its transformation into the discuss list (the list of cases identified by the Chief Justice as meriting discussion in conference), and the emergence of the cert pool. The authors assert that the dead list (and, later, the discuss list) made the clerks more important in screening cases for review. Often the only analysis a justice might have had on hand would be that contained in the memo prepared by his or her clerks. The establishment of the cert pool was also consequential in this regard. Created in 1972, the cert pool means that often the only analysis a justice might see is contained in the memo prepared by a clerk, not necessarily his or her own. Ward and Weiden argue that the cert pool has diminished the incidence of candid analysis, with the non-obvious effect of emphasizing inter-circuit conflict as a justification for the granting of cert. With regard to the diminishment of candor, the authors suggest that clerks are very conscious of the fact that their cert memos are intended for an audience beyond their own justice. As a consequence, cert pool memo writers are [*772] more apt to homogenize content. Further, “clerks, lacking institutional memory and a broad outline of the Court’s trends, focus[ ] on the observable features of cases [e.g., inter-circuit conflict] that could be justified as ‘cert-worthy’ ” (p.132).

The fourth chapter is devoted to the question of whether the clerks influence the choices justices make. The authors set out to answer this question with the use of a variety of papers from the justices. Though Ward and Weiden use that material to good effect, the more intriguing evidence comes from their original survey data. The authors are appropriately cognizant of the fact that the law clerks may well have an inflated view of their own importance in and influence on decision making. This caveat makes some of their findings all the more interesting, however. Only one former clerk indicated that he was frequently able to change his justice’s mind about a particular case or issue. Three-quarters indicated they could never or only seldom do so. This suggests that, even if clerks are prone to exaggerate, they see their influence on cases and issues as negligible. The survey data also reveal that clerks believed their influence, when they had it, was at its apogee at the certiorari stage and at its nadir in decisions about case outcomes.

In Chapter 5, Ward and Weiden articulate an opinion-writing typology to guide their analysis of clerk influence in that process. With the delegation approach the clerk is assigned an opinion by the justice, who subsequently revises the draft. The retention approach, on the other hand, entails the justice writing the opinion, with the clerk providing citation, footnote, and editorial assistance. The collaboration approach strikes a balance between the first two, with both parties working in tandem. Ward and Weiden conclude that delegation is the contemporary model, and they are less than sanguine about this state of affairs: “The most damaging aspect . . . of having judicial opinions written by clerks is the potential loss of authority that these opinions carry. Indeed, it is only respect for the Court’s legitimacy that gives its judgments weight with both the public and lower court judges who are expected to follow its mandates” (p.236).

The concluding chapter highlights key developments as the role of law clerk has become institutionalized. The authors also propose a few modest changes intended to reign in any abuses attendant with increased reliance by the justices on their clerks. For example, they suggest that the Court release the pool memo when a case is denied review, thereby enhancing the transparency of internal operating procedures. They also suggest that the random assignment of cases in the cert pool – both across and within chambers – be strictly enforced to minimize the incidence of clerks picking and choosing cases for which they write the cert memo based on individual special interests. Their ultimate recommendation, however, is that both the justices and their clerks recognize and respect the boundaries of their respective authority.

Ward and Weiden have produced that rare book that is both a meticulous piece [*773] of scholarship and a good read. The authors have obviously sifted through a varied and voluminous amount of archival material, winnowing out the chaff and leaving the excellent wheat for our consumption. They marry this extensive archival research with original survey data, using both to great effect. It compares very favorably in this regard to Perry’s DECIDING TO DECIDE, which used archival and interview data so well in examining the certiorari process. While SORCERERS’ APPRENTICES has neither the sensationalism of Woodward and Armstrong’s THE BRETHREN nor the insider appeal of Lazarus’ CLOSED CHAMBERS, it is written in an accessible and lively style that makes it interesting to more than simply an academic audience (though undergraduate students would no doubt find this a text that could compete with the latest paperback thriller for their attention).

Serendipitously, the meager amount of quality scholarship focused directly on Supreme Court law clerks prompted the publication of not one but two recent titles on the subject. Todd C. Peppers’s book, COURTIERS OF THE MARBLE PALACE, was also released this year. Like Ward and Weiden, Peppers is concerned with understanding the historical evolution of the position. Also like Ward and Weiden, Peppers provides an informative law clerk portrait (e.g., educational backgrounds, demographic characteristics, and so on). Further, both books integrate survey data (Peppers also relies upon interviews) with a wealth of archival research. These books illustrate nicely the utility of a multi-method analytical approach. Notwithstanding these commonalities, the books are really quite different, and, rather than seeing them as substitutes for one another, it is more appropriate to consider them as complementary texts best read together. In particular, Peppers considers the evolution of the law clerk through the lens of principal-agent theory, with clerks serving as agents for their principals, the Supreme Court justices. His primary contention is that, although the increased reliance on law clerks for substantively important tasks, such as drafting cert and bench memos and opinions, has opened the door for greater influence, those enhanced responsibilities have come with more rules, both formal and informal, designed to constrain wayward clerks from running amuck. Peppers’ analysis of the evolution of the law clerk leads him to conclude that their influence is rare and indistinct at best. The somewhat divergent assessments of clerk influence offered in SORCERERS’ APPRENTICES and COURTIERS OF THE MARBLE PALACE are an invitation to read these books in conjunction with one another and consider carefully how they arrive at their respective conclusions.

REFERENCES:

Lazarus, Edward. 1998. CLOSED CHAMBERS: THE RISE, FALL, AND FUTURE OF THE MODERN SUPREME COURT. New York: Penguin Books.

Peppers, Todd C. 2006. COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK. Stanford: Stanford University Press. [*774]

Perry, Jr., H.W. 1991. DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT. Cambridge: Harvard University Press.

Woodward, Bob and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon and Schuster.

© Copyright 2006 by the author, Wendy L. Martinek.

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LAW AS CULTURE: AN INVITATION

by Lawrence Rosen. Princeton: Princeton University Press, 2006. 230pp. Cloth. $24.95/£15.95. ISBN: 0691125554.

Reviewed by Paul Parker, Social Science Division, Truman State University. Email: parker [at] truman.edu.

pp.767-768

Lawyer and anthropologist Lawrence Rosen has written a thought provoking little book. As you would expect from an anthropologist, law is not Universal in the sense it is True, but it “may be worthwhile . . . to think of law as universal in this one sense – as a marvelous entry to the study of that most central of human features, culture itself, and hence an open invitation . . . to thinking about what and who we are” (p.200).

This quote is substantially the last sentence of the book. The previous pages include a preface, an Introduction, and four main chapters. After a two-page Conclusion, the book finishes with 12 pages of “For Further Reading” – essay notes – and a very short index. The four chapters are: “Law and Social Control,” “Creating Facts,” “Reason, Power, Law,” and “Law as Cosmology.”

The four main chapters demonstrate the manners in which law is not Universal, across either space or time, and links variation to social custom and need. The universality then comes in law’s connection to human and social activity: “a key role for most legal systems, quite apart from addressing disputes, consists precisely in their ability to help maintain the sense of cosmological order” (pp.170-71).

Chapter 1 includes a suggestion to think of “families of law,” based on whether they “treat law as an arm of central governance” (civil law), distribute power widely among counterbalancing institutions (common law) or “maintain legitimacy of established practices (traditional legal orders) (pp.40-41). Then we begin to think how law is connected to broader cultural practices and institutions. For example, Kleptomania emerges with the department store, as a condition afflicting women who were not, in Victorian times, free to wander about. Kleptomania remains today in the DSM-IV a condition mostly afflicting women (p.181). Functionalist explanations for the taboo of incest really wash out, suggesting that such taboos are about delineating culture, and thus identity (pp.174-75). Similarly, our stubborn refusal to eat puppies (p.169). The evolution of trial from ordeal to the jury, and the rules for what counts as evidence and expert testimony all show the changing nature of how cultures through the law work at Creating Facts (Chapter 2). Thus, Arab cultures investigate the accused’s background and social ties; civil law systems investigate past wrongful behavior; and common law systems stick more narrowly to the alleged act (pp.98-104). This example also serves to demonstrate how different cultures reason, how people in different cultures relate (pp.136-142), and thus demonstrates Reason, Power [and; in] Law (Chapter 3). [*768]

The central point of the book is simple to grasp. The recursive examples make it a book difficult to read around in, but do reward a reading of the whole work. In a contradictory claim, there is a lot here, and there is a lot not here. Two endorsements on the dust jacket acknowledge this: one refers to both the work’s “breadth” and “brevity,” and the other notes the “broad overview” and “succinct” analysis. Indeed, there are many audaciously broad claims, but if it is careful argumentation and thorough documentation you want, look elsewhere. There are a dozen pages of notes for further reading, but they are breezy and not recursive: if you want the references to work on the French jury system discussed in Chapter 3 (p.160), you will do best to read the notes to Chapter 2. But if you want “to see . . . how parts of a society and culture may be connected to one another and then to bring these possibilities, both as generalizations and as heuristic devices, back to a fuller understanding of a given system”(p.67) consider accepting Rosen’s invitation.

© Copyright 2006 by the author, Paul Parker.

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ENFORCING THE RULE OF LAW: SOCIAL ACCOUNTABILITY IN NEW LATIN AMERICAN DEMOCRACIES

by Enrique Peruzzotti and Catalina Smulovitz (eds). Pittsburgh: University of Pittsburgh Press, 2006. 376pp. Paper. $29.95. ISBN: 0-8229-5896-1

Reviewed by Lydia Brashear Tiede, University of California, San Diego; email: ltiede [at] ucsd.edu.

pp.761-766

The role that civil society organizations and the media play in new or emerging democracies is an increasingly important area of inquiry for both scholars and development experts. The editors and contributors to ENFORCING THE RULE OF LAW: SOCIAL ACCOUNTABILITY IN NEW LATIN AMERICAN DEMOCRACIES predominantly focus on how such organizations in conjunction with pre-existing government institutions can enhance government accountability. In general, the authors of the various articles focus predominantly on two allegedly positive attributes stemming from the proliferation of civil society organizations and effective media in Latin America. First, the authors focus on how civil society organizations work as watch dog organizations to ensure that government officials carry out their duties. Second, some of the authors also focus on how certain institutions allow opportunities for citizen involvement in areas traditionally reserved for politicians.

While this edition mostly provides case studies, rich in detail, on the positive work of civil society organizations and new government institutions which allow for citizen access, the introduction and final section on theoretical issues address the core debate regarding mechanisms available to make government accountable to citizens. In their introduction, Enrique Peruzzotti and Catalina Smulovitz describe the main debate in the literature as “precisely how to regulate and reduce the gap between representatives and the represented while simultaneously preserving the differentiation between political authorities and the citizenry” (p.5). In effect, the debate entails what is the best way to make political officials accountable either through vertical accountability (elections), horizontal accountability (a system of checks and balances amongst government branches) or social accountability (a new mechanism described in this volume and below). Peruzzotti and Smulovitz describe the differences in accountability mechanisms in a useful table (p.27).

According to Peruzzotti and Smulovitz, on one side of the debate is O’Donnell’s (2003) assertion that most Latin American democracies are “delegative,” rather than representative because many Latin American countries possess ineffective government institutions for checking abuses of power by other political actors. For O’Donnell, the deficiency in Latin American democracies lies in weak horizontal accountability, which he defines as, “[t]he existence of state agencies that are legally enabled and empowered, and factually willing and able, to undertake [*762] actions that span from routine oversight to criminal sanctions or impeachment, in relation to actions or omissions, by other state agents or agencies, that may be qualified as unlawful” (p.334, referencing O’Donnell 1999, 2003).

On the other side of the accountability debate is Moreno, Crisp and Shugart (2003), who argue that the system of checks and balances in Latin America should be understood as “horizontal exchange” rather than horizontal accountability, because in “presidential democracies, the separate origin and survival of the executive and legislature makes them agents of the voters, not one another, and therefore not institutionally accountable to one another” (Moreno et al., at p.80). For these authors, a lack of accountability in Latin America is due to a lack of vertical accountability mechanisms, in the form of electoral institutions and processes. To deal with Latin America’s “accountability deficit,” they propose reforms to such systems and processes.

For the editors, representative government works when governments can be held “politically and legally accountable” to their citizens (p.6). How citizens can make officials “answerable” when they have acted improperly is problematic, especially in Latin American countries. As pointed out by the editors, while elections serve as the main basis for holding politicians accountable, there has been an increasing emphasis for the complementary mechanisms of an independent media and strong civil society organizations. Peruzzotti and Smulovitz, enter the debate by attempting to define a new type of vertical accountability mechanism that they refer to as “social accountability” (p.10). For these authors, social accountability is defined as “a non-electoral yet vertical mechanism of control of political authorities that rests on the actions of an array of citizens’ associations and movements and the media” (p.10).

Specific social accountability mechanisms for these authors are the judiciary, mobilization, and media (p.19). However, the authors fail to show how the judiciary can simultaneously serve as a mechanism for social accountability and also serve as an accountable government institution. From the authors’ descriptions and the various case studies, social accountability seems to refer to the manner in which citizens make horizontal control mechanisms work more efficiently.

Once the introduction sets the stage for the debate, the majority of the book focuses on cases studies. These case studies not only illuminate specifically how civil society organizations and government institutions interact, but they also draw attention to the diversity of such organizations in function, skill, and effectiveness. This in turn suggests that further theoretical work should account for the differences in civil society organizations.

The book is divided into three parts. Part I, entitled “Civil Society and the Control of Political Power,” provides many detailed and interesting case studies of the action of organized groups [*763] that either urged or compelled actors to intervene in cases of human and civil rights abuses. Part II deals with watchdog journalism, and Part III provides some theories concerning the accountability debate.

The case studies in Part I provide a diverse selection of descriptions of civil society organizations’ interaction with government bodies. In the first chapter, Calvancanti provides a description of the new Brazilian Public Prosecutor that has new institutional functions allowing it to act as a party to a law suit. As such, citizens now address the public prosecutor directly when there is concern about public officials. Despite the enhanced role of the public prosecutor, the author correctly warns that its ability to hear citizens’ complaints may compromise this institution’s independence and impartiality.

Like Calvancanti, Smulovitz shows that courts played a significant role in redressing citizen complaints regarding government restrictions on cash withdrawals during Argentina’s financial crisis of 2001. She concludes that the mobilization of citizens around legal strategies can have both political and symbolic benefits.

According to Lemos-Nelson and Zaveruch, besides courts, parliamentary investigation commissions, such as those found in Brazil, provide room for citizen action and “bolster the investigative power of the legislator” to produce change (p.77). These authors study a number of such commissions in northeastern Brazil to discover the relationship between vertical and horizontal accountability.

In a more theoretical piece, Grau focuses on the use of citizen deliberation mechanisms to make government more accountable. Grau provides several “models” of these deliberation mechanisms used in varying degrees in several Latin American countries that either empower citizens to sanction officials or allow forums for public scrutiny and hearings. Although Grau seems to think that deliberative bodies are a positive step towards accountability, he does not engage in the larger debates about whether deliberation itself effectively enhances democracy.

Fuentes’ piece focuses on what he views as the enigma of democratic development in Chile. He finds that, in the period from 1990 to 2001, the work of human rights organizations declined, while the incidents of police brutality increased. As discussed below, this and other chapters may suffer from assessing only a limited time period.

Also in Part I, Rivera focuses on the role of Civic Alliance in Mexican elections and how this organization actually became a victim of its own success. Finally, Behrend analyzes citizen action in both the CABEZAS and CARRASCO murder cases in Argentina.

Part II of this edition talks about the role of the media and government accountability. Peruzzotti studies Argentina’s Senate scandal initiated by a newspaper editorial discussing an accusation that Congress had passed a [*764] labor reform law due to bribes. This editorial led to larger scandals involving both the Senate and the judiciary. Peruzzotti’s article evaluates the role that political scandals, such as the Senate scandal can have in making government more accountable. Also, in Part II, Waisbond writes about another Argentine media scandal concerning Argentina’s role in sending arms to the Balkans in 1995. While the two case studies that comprise Part II are quite interesting, analysis involving countries other than Argentina would have added to this section.

While this book is valuable for its case studies, it needs to be updated. As stated in the forward, the book, published in 2006, arose from discussions and presumably papers from a conference that took place in Buenos Aires in 2000. Although Smulovitz and a few other authors update their pieces through 2002, the vast majority of the case studies end in 2000 or 2001. This is especially problematic for several pieces. For example, Fuentes, in “Violent Police, Passive Citizens,” argues that for the period from 1990 to 2001, human rights organizations have become increasingly less effective as human rights abuses by the police have increased. This argument, however, is weakened when one considers post-2001 events such as the enactment and implementation of major criminal law reforms that strengthened prosecutors while weakening the police. Further, major developments in the prosecution of Pinochet and other human rights abusers have occurred since 2001. As with the Fuentes piece, several arguments made by the authors in the case studies need to be updated. While it is recognized that this is an edited volume from a 2000 conference, the case studies would be more valuable with updated research.

Finally, Part III, entitled “Theoretical Issues,” provides a much needed discussion of what social accountability adds to the debate regarding democracy and accountability in general. Arato finds that institutional design alone can not make government more accountable. He contends that, to make government more accountable, governments should allow for “a dimension of deliberative democracy” (p.316) where civil society can engage in the public sphere. While there are many advocates of deliberative bodies as a panacea for democracy, there have been few tests of the effectiveness of deliberation in modern society.

In Part III, Przeworski aptly argues that accountability deficits are not unique to Latin America, but are a problem faced by many democracies. Further, Przeworski warns that the use of social accountability mechanisms as an alternative to weak or ineffective political parties may just be a fad. Although not specifying an alternative cause, Przeworski finds that poverty and inequality in Latin America are not linked to a lack of accountability mechanisms in any of their variations.

Also, in the theoretical section of this book, O’Donnell provides an extremely useful summary of how the three forms of accountability, namely vertical (elections), horizontal, and social accountability, are interrelated. Further, he advocates a research agenda that [*765] would establish a typology of the different and diverse methods of social accountability.

Despite the title of this collection of thought provoking essays, ENFORCING THE RULE OF LAW: SOCIAL ACCOUNTABILITY IN NEW LATIN AMERICAN DEMOCRACIES is not really a book about the rule of law or enforcement of the law per se, but rather a book about what role civil society organizations and the media play in making weak or failed government institutions function in the ways they were intended by policy and law makers. Although the title refers to the “rule of law,” and judicial institutions are the focus of some of the chapters, none of the authors or editors ever actually define “rule of law” or explicitly state how civil society organizations are linked to rule of law enforcement. Although there is a plethora of available definitions, the authors of the various contributions seem to imply that for them, the rule of law is equated with checks on government power. It would have been useful to analyze how other conceptions of the rule of law are linked to the accountability debate. For example, in the past O’Donnell has provided a useful definition of the rule of law, namely “the degree to which the legal system extends homogeneously across the entire territory of the state” (O’Donnell 2004, at p.43). Further exploration of the link between government accountability, civil society, and this definition of the rule of law would have been interesting.

Finally, as aptly pointed out by the editors, the ultimate success of mechanisms of social accountability depends on the “existence of institutions with the ability to impose sanctions” (p.351). As a result of this assertion, further research should be conducted on the enforcement mechanisms available to government institutions and the way in which they can be put into force by society as a whole.

REFERENCES:

Feinberg, Richard, Carlos Waisman, and Leon Zamosc. 2006. CIVIL SOCIETY AND DEMOCRACY IN LATIN AMERICA. New York: Palgrave MacMillan.

Moreno, Erika, Brian F. Crisp, and Matthew Shugart. 2003. “The Accountability Deficit in Latin America,” in Scott Mainwaring and Christopher Welna (eds), DEMOCRATIC ACCOUNTABILITY IN LATIN AMERICA. New York: Oxford University Press.

O’Donnell, Guillermo. 1999. “Horizontal Accountabilities in New Democracies,” in Andreas Schedler, Larry Diamond, and Marc F. Plattner (eds), THE SELF-RESTRAINING STATE: POWER AND ACCOUNTABILITY IN NEW DEMOCRACIES. Boulder and London: Lynne Rienner Publishers. [*766]

O’Donnell, Guillermo. 2003. “Horizontal Accountability: The Legal Institutionalization of Mistrust,” in Scott Mainwaring and Christopher Welna (eds), DEMOCRATIC ACCOUNTABILITY IN LATIN AMERICA. New York: Oxford University Press.

O’Donnell, Guillermo. 2004. “Why the Rule of Law Matters.” 15 JOURNAL OF DEMOCRACY 32-46.

© Copyright 2006 by the author, Lydia Brashear Tiede.

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ENGAGING THE LAW IN CHINA: STATE, SOCIETY, AND POSSIBILITIES FOR JUSTICE

by Neil J. Diamant, Stanley B. Lubman, and Kevin J. O’Brien (eds). Stanford: Stanford University Press, 2005. 256pp. Cloth. $49.50. ISBN: 0804750483.

Reviewed by Michael W. Dowdle, Clarke Program in Asian Law and Culture, Cornell Law School. Email: mwd26 [at] cornell.edu.

pp.757-760

Particularly for those who tend to conceptualize China and Chinese law and politics primarily through more traditional, state-centric lenses, ENGAGING THE LAW IN CHINA is likely to be a very eye-opening read. For those who already see China as a complex mélange of social and political forces that cannot be accurately described by reference to a limited collection of rational, anthropomorphic intentionalities (such as those “of the party” or “of the leadership”), ENGAGING THE LAW IN CHINA will lend helpful support for their views.

Unfortunately, at the same time, the book also represents a missed opportunity of sorts. Over the past 15 years at least, many scholars have engaged in important interdisciplinary studies of law-in-action in China. In this sense, the larger theme of the book – that of promoting a supposedly new law-in-action scholarship for Chinese law – seems to be reinventing the wheel somewhat. One wishes that the book and its chapters would have done more to engage more with already existing literature in this area.

ENGAGING THE LAW IN CHINA explores what sometimes is called “law-in-action” in China. ‘Law in action’ challenges the dominant analytic methodology through which Chinese law and politics have traditionally been explored – that of neo-realism. Neo-realism attributes legal and political behavior in China to the rational, egocentric intentionalities of discrete political entities. The law-in-action literature derives essentially from two overlooked aspects of the human regulatory experience. The first aspect is that the actual impact of a particular legal regime on social behavior often differs significantly from that suggested by the law as it appears ‘on the books’ – i.e., as simply written down. Relatedly, the actual impact that a particular legal regime has on social behavior often does not correspond to any identifiable ‘intentionality’ of a particular set of political or institutional entities. Taken collectively, these two aspects recognize that the formal ‘law’ must negotiate an often highly complex field of institutions and relationships before it influences actual behavior, and that the cumulative dynamics of this field often cannot be captured via simplistic metaphors of political ‘power’ and intentionality.

ENGAGING THE LAW IN CHINA presents a number of empirical studies that explore this ‘law-in-action’ as it manifests itself in a diversity of regulatory environments. In Chapter 2, entitled “Suing the State: Administrative Litigation in Rural China,” Kevin O’Brien and Lianjiang Li explore the [*758] cat-and-mouse games by which local civil society and local political officials both use and manipulate the administrative litigation law and its corresponding legal system in rural China. They argue that understanding these games helps explain why the administrative litigation law has been both more and less effective than has been commonly suggested. It is less effective because political officials are surprisingly successful in devising strategies that impede the juridical impact of such litigation capacity – strategies that prevent such cases from reaching the courts, for example, or for capturing or otherwise intimidating the courts themselves, and for avoiding judicial enforcement of adverse judgments. At the same time, it has been more effective in the sense that petitioners are able to integrate administrative litigation into a larger package of ‘rightful resistance’ techniques that allow administrative litigation to reach far beyond the narrow confines of the courtroom.

The next two chapters can be seen as replicating O’Brien’s and Li’s demonstration of how the law in action in China is both shallower and broader than it is treated by more traditional analysis in the context of industrial dispute regulation. In Chapter 3, “Use Law as Your Weapon: Institutional Change and Legal Mobilization in China,” Mary Gallagher shows how the on-going juridification of labor dispute management prioritizes certain kinds of claims and problems, namely those that find ready expression in legal language, at the expense of others, namely those that are more easily expressed in moral language. This, in turn, has significantly skewed the law’s ability to address comprehensively China’s labor problems through judicial dispute resolution.

But in Chapter 4, Isabelle Thireau and Hua Linshan remind us that the courts are not the only vehicles through which the labor legal system expresses its authority. Thireau and Hua show how different populations tend to use different arenas within that labor system, depending on the problems they most often confront. They show how indigenous contract-based laborers, because their labor problems are most easily expressed in juridical terms, tend to gravitate towards more formal, legal forums, like courts and arbitration tribunals. By contrast, migrant labor, whose problems lend themselves to moral kinds of claims, are more likely to use letters and visitors offices, precisely because these offices better accommodate moral-based argument. Drawing from O’Brien’s and Li’s notion of ‘rightful resistance,’ they suggest that these two forums need to be seen as operating in tandem. And, when viewed in tandem, we see that labor law is indeed broadening the complaint spaces available to disaffected workers.

In Chapter 5, Mark Frazier looks at the related issue of pension reforms. He shows how the experience of pension reforms simply does not correspond to images of the Chinese “state” as a rationalized entity or as product of a simple set of rationalized principles of behavior (such as suggested by principal-agent analyses). Rather, he shows not only that the “state” – to the extent that term has any real analytic [*759] utility – is highly chaotic, but that the chaos may in fact be an affirmative structural element, at least for the present. For example, new rules and regulations do not serve so much to unify and centralize power and authority as they serve as framing devices for future negotiations. He further suggests that, given the current state of China’s economic and industrial environments, it probably could not be any other way.

Chapter 6, by Neil Diamant, looks to the past, exploring how the political system treated demobilized military veterans during the 1950s. Despite the fact that the State itself often asserted that military veterans enjoyed special political status and respect due to their willingness to serve the state, in practice they were generally marginalized and discriminated against, even by state officials, when they sought to reintegrate into civilian society.

Chapter 7, by Andrew Mertha, to some extent amplifies Mark Frazier’s complaint about traditional visions of the state, by exploring how, at least in the context of intellectual property rights enforcement, foreign commercial actors are increasingly involved in shaping state behavior. He wonders what this might imply for traditional notions that see both “state” and “civil society” in terms of innately autonomous and innately indigenous phenomena.

The last two chapters, Murray Scot Tanner’s “Rethinking Law Enforcement and Society” (Chapter 8) and Fu Hualing’s “Punishing for Profit” (Chapter 9) present the book’s most direct and compelling refutations of the traditional, state-centric visions of law and regulation. Tanner’s chapter assesses changes in how higher-level police officials – as expressed in internal publications – have come to view the phenomenon of social disorder in increasingly empathetic terms – i.e., as expressions of often legitimate grievances rather than as simple efforts to challenge the state’s political authority. He shows how this counterintuitive evolution simply cannot be explained through traditional command-and-control (i.e., ‘top-down’), or threat-and-compromise (i.e., ‘bottom-up’) models of state dynamics. Rather, he shows, it exposes the complexity of the institutional factors that comprise the political environment in which the police often find themselves. Fu Hualing’s chapter explores, again contrary to received understandings, how introducing profit-making incentives into prison labor facilities encourages prison administrators to improve their treatment of prisons so as to increase productivity – albeit at the possible expense of rehabilitation.

Individually, the chapters in this book present fascinating studies of how particular aspects of China’s regulatory environment works – or in the case of Diamant’s chapter, has worked – ‘in action.’ But the book may be less successful in its larger aims.

The editors indicate that their intention is to “begin spanning the gap between fields that have a lot to offer each other but have yet to really speak to one another” (p.5). These disciplines are supposed to include comparative legal history, political science, legal [*760] anthropology, and the sociology of law (p.4). But in fact, with the exception of Thireau’s and Hua’s essay, the substantive chapters in this book do not attempt to engage systemically with these other disciplines. Methodologically, the studies in this collection resemble many of those frequently found in the pages of CHINA JOURNAL or CHINA QUARTERLY – robust empirical studies whose actual theoretical engagement with outside literature is not particularly systemic.

The individual chapters also make little effort to engage relevant, existing literature in Chinese studies. For the last fifteen years, a significant number of scholars (including several who contributed to this book itself) working on Chinese law and regulation have indeed been trying to “span the gap” between Chinese legal studies and other relevant disciplines. Much of this earlier research would seem directly relevant – the work of Ching-Kwan Lee in the area of labor, for example, seems very relevant to Gallagher’s observations; Tianjian Shi’s earlier work with regards to internalization of political norms would seem a useful referent for Tanner’s study; and Linda Li’s work on professionalization and value formation in local government would have important implications for Frazier’s chapter. For the most part, however, the studies in this collection do not engage with prior literature.

And in this aspect, the volume replicates the large problems with contemporary American efforts to understand law-in-action in China. Like the studies in this book, American engagement with law, regulation and society in China still focuses primarily on the collection and narration of raw data. Little effort is made to contextualize observations against a larger field of other such studies. One wonders whether the principal obstacle to our greater understanding of China might, at the present time, lies not so much in inadequate primary information, but rather in an inadequate synthesizing of the information we have already collected.

Ultimately, interdisciplinary and comparative research and investigation are more about theory-building than about field work. And, although the editors are right to complain about contemporary scholarship failing to pursue such a wider picture, the studies in this collection also show just how hard it may be to do this in an intellectual environment which so privileges fieldwork and raw data collection over other forms of knowledge generation.

© Copyright 2006 by the author, Michael W. Dowdle.

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GENERAL ASHCROFT: ATTORNEY AT WAR

by Nancy V. Baker. Lawrence, KS: University Press of Kansas, 2006. 320pp. Cloth. $34.95. ISBN: 0-7006-1455-9.

Reviewed by Rebecca U. Thorpe, Department of Government & Politics, University of Maryland. Email: rthorpe [at] gvpt.umd.edu.

pp.754-756

The aggressive character of U.S. foreign policy after 9/11, coupled by tightened security measures on the domestic front, has evoked charges of virtually unchecked executive authority in the Bush Administration from across the political spectrum. A number of books surfaced in the aftermath of 9/11, responding specifically to the policies of the Bush Administration, above all to its determined efforts to promote and justify unilateral executive action in efforts to obstruct terrorism and engage in war unilaterally (e.g., Johnson 2004; Chomsky 2003; Prestowitz 2003). With GENERAL ASHCROFT: ATTORNEY AT WAR, Nancy Baker joins the host of academic voices captured by the current rise of presidential power. Although by no means the first book to undertake such an examination, ATTORNEY AT WAR does so from a distinct perspective: through the lens of the Attorney General and national law enforcement powers.

Baker abstains from a broad indictment and offers a balanced account free of ad hominem attack. The text provides a well-researched description of the events surrounding the nation’s anti-terrorism response and the corresponding changes in legal policies, in light of Attorney General John Ashcroft’s instrumental role. Three factors are key to this understanding: the framework of a ‘war on terrorism’ catalyzed by the events of 9/11, the legal policy role of the attorney general, and the presence of John Ashcroft in such a time, place, and position (p.11).

The book is, in a sense, a biographical narrative – a radius swinging around the focal point of one man uniquely situated in the political position and with the religiously-inspired will to craft a legal policy agenda that aims to eviscerate evil, in response to the attacks of September 11. Though Ashcroft’s distinct role in the Bush Administration may be politically important – or at least of significant historical interest – Baker’s documentation suggests something of an orchestrated plan by a singular agent serving a like-minded president. Rather than casting the attorney general’s role as a leading indicator of a larger political context, the book offers a narrative where one of the most powerful attorneys general in the nation’s history works actively to transform an entire legal policy. Despite Baker’s modest language – she demonstrates caution in not explicitly overstating her case – the simultaneous disregard for political strategy as opposed to individual attitude, collective instead of personal decision-making, and the role of politics in shaping legal policies, render the account implicitly overstated.

Justice Thomas Reed Powell once called legal analysis the art of thinking about how one thing relates to another without [*755] thinking about the other. Baker illustrates how Ashcroft’s legal policy agenda relates to an expansive scope of presidential powers to wage war on terrorism without explicit recognition of the historical contours of American presidential power or when and how constitutional authority expands and contracts.

This is not to deny the influence of the Bush Administration and Attorney General Ashcroft in shaping legal policy to augment presidential authority. Rather, it suggests that a predisposition to hegemonic presidential authority generally – and to war powers more specifically – may have arisen in White House circles before September 11, 2001. As early as American constitutional ratification began, Alexander Hamilton championed “energy in the executive” as a “leading characteristic in good government” (FEDERALIST 70). Two centuries later, Stephen Skowronek’s (1993) influential work cast presidential politics as a “blunt disruptive force” contingent on a given leader’s “relation to the received order.” In other words, exogenous circumstances, along with individual leadership, play a role in determining the character that a presidential order will take.

The legacies of Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Ronald Reagan all show how ‘reconstructive’ leaders succeed in forsaking traditional structures and animating new visions, which then set the tone for their successors. Yet, from a bird’s eye view, these ostensibly transformative orders reveal themselves as cyclical processes subject to various political vicissitudes. In this regard, 9/11 and the Bush Administration’s sweeping response ought to be construed as an event and an opportunistic political appeal that catalyzed existing tendencies rather than as a unique historical turning point. Indeed, George W. Bush’s vow that the United States will “rid the world of evil,” which “for John Ashcroft . . . drove the need for a hegemonic presidency” (p.60), echoes the claims of his predecessors going back as far as Woodrow Wilson (see “President Woodrow Wilson’s War Message,” April 2, 1917, www.mtholyoke.edu/acad/intrel/ww18.htm (accessed September 21, 2006)).

By adopting a singular focus centered on Ashcroft’s legal finesse, an author runs the risk of producing a distorted picture of the comparative authority of the Attorney General and the Bush Administration in domestic affairs and national security. Applied as such, ATTORNEY GENERAL AT WAR cannot stand in isolation. It can, however, provide an important and previously neglected piece of the American political puzzle.

REFERENCES:

Chomsky, Noam. 2003. HEGEMONY OR SURVIVAL: AMERICA’S QUEST FOR GLOBAL DOMINANCE. New York: Metropolitan Books.

Rossiter, Clinton (ed). 2003. THE FEDERALIST PAPERS. New York: Signet Classic. [*756]

Johnson, Chalmers. 2004. THE SORROWS OF EMPIRE; MILITARISM, SECRECY, AND THE END OF THE REPUBLIC. New York: Metropolitan Books.

Prestowitz, Clyde. 2003. ROGUE NATION: AMERICAN UNILATERALISM AND THE FAILURE OF GOOD INTENTIONS. New York: Basic Books.

Skowronek, Stephen. 1993. THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH. Cambridge: Harvard University Press.

© Copyright 2006 by the author, Rebecca U. Thorpe.

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NATURAL LAW, LAWS OF NATURE, NATURAL RIGHTS: CONTINUITY AND DISCONTINUITY IN THE HISTORY OF IDEAS

by Francis Oakley. London and New York: Continuum International Publishing Group, 2005. 144pp. Hardcover. £16.99 / $34.95 / €29.96. ISBN: 0826417655.

Reviewed by Walter J. Kendall III, Professor of Law, The John Marshall Law School, Chicago, Illinois. 7kendall [at] jmls.edu.

pp.751-753

History as a discipline is in the midst of fundamental revision, again. This time it is the traditional periodizations that are the subject of re-thinking (e.g., Bouwsma 2000). As a result, consensus understandings as to the meaning of events and ideas are being revised. And new canonical sources are being identified as long forgotten, or ignored thinkers are being foregrounded (e.g. Tierney 1997).

Francis Oakley’s book, NATURAL LAW, LAWS OF NATURE, NATURAL RIGHTS, is one of the growing number of such revisionist histories; his specifically in the history of ideas. Oakley has written an elegant and nuanced account of how realms of discourse usually treated separately – laws of nature, natural law and natural rights – communicate both dialectically and, although he does not say so, even elliptically.

It is, in its understated way, a challenge to other methodologists of the history of ideas. Followers of Kuhn, Skinner, and Foucault, with their emphasis on discontinuity, and Lovejoy and Whig historians, with their emphasis on continuities, would all do well to reflect on Oakley’s arguments.

This small, but soon to be classic book is of equal challenge to students of natural law and human rights. In his text and endnotes Oakley critically engages, among others, Strauss, Haakonssen, Tuck, and Shapiro.

In this study of the changing philosophical grounding of the laws of nature, natural law, and natural rights, Oakley assumes that “the traditional periodization of European history into ancient, medieval, and modern . . . is as much a hinderance as a help when it comes to understanding the course of European intellectual history” (p.23). He rather tends to see seismic shifts in political thought in both the 12th and 18th centuries and believes it wise to see the period in between as a distinct unit for study.

Oakley acknowledges the polysymmetry of each of the terms he is considering. He specifically refers to Lovejoy’s 66 senses of the term nature in antiquity, the contemporary “flowering of vital natural law philosophy” (p.17), and Hohfeld’s taxonomy of rights relationships. But he chooses to limit himself to three principal arguments focused on the grounding of these concepts.

The first argument is that the ambiguity of “nature” is fundamentally a function of three differences in usage or understanding; nature can be viewed as either organismic or mechanistic; law [*752] can be constituted or grounded either “in indicative rational norm or in imperative legislative command” (p.24); and, the community, subject to the sway of natural law, can be limited to humans or extended to animals and physical nature.

In other words, Oakley pursues the view that philosophic coherence requires “sinuous interconnections” (p.73) between positions a thinker adopts in natural theology, epistemology, natural, moral, legal, and perhaps political philosophy.

Oakley’s second argument is that the most significant shift in understanding of both the nature of nature and the nature of law (but not of rights) occurred in the 14th and 15th centuries. As a consequence of that shift, two traditions of natural law conception were transmitted to subsequent thinkers.

One tradition, the dominant one, is that human beings, through the use of reason, have access to norms of right and wrong that are natural, universal and unchanging. Labels that come to mind are intellectualist, organic, inherent. The other, which on its face might not appear to be a nature law notion at all, is that the absolute unfettered will of God is the only standard of morality.

Ockham, who is most often considered the originator of this view, went so far as to argue that God could make hatred of God morally permissible. Thus, there are no immutable norms and no intrinsically evil acts. Oakley traces Ockham’s thinking through his early academic and later political writings. He accepts the traditional view that Ockham grounded his thinking on God’s ordained or self-limited power, as opposed to His absolute immutable (?) power. But he concludes that Ockham also believed that right reason “in the present order” (p.80) is available as a guide to conduct. Thus Ockham’s thinking is properly considered a natural law theory. Here however the labels that come to mind are voluntaristic, mechanical, imposed.

Oakley views the dialectic relationship between these two traditions as the key to understanding the varied and complex natural law views developed during the 14th-15th centuries and into the 18th century.

Oakley, at some length and in some detail, challenges the notion that Hugo Grotius is properly considered “the natural law thinker who finally broke with classical and medieval natural law doctrines, setting in their place a new and secularized form of natural law” (p.64) He argues that there was nothing new in Grotius’ thinking about how the natural law is grounded. He goes further and insists that Grotius’ famous or infamous “impious hypothesis” – even if there were no God there would be a natural law – makes the lack of novelty clear!

As regards subjective, individualized natural rights, Oakley reviews the conflicting claims as to the origin of the idea. Strauss and Macpherson, among others, argue for Hobbes and the 17th century. Other claimants and their champions include “in the fifteenth, fourteenth, or twelfth and thirteenth centuries – in the theology of Jean Gerson (Richard Tuck), the nominalism [*753] of William of Ockham (Georges de Lagarde, Michel Villey, Michel Bastit), in the natural law theory of Thomas Aquinas (John Finnis), or even earlier, in the juristic formulations of the twelfth and thirteenth-century canon lawyers (Brian Tierney, Charles Reid)” (p.p.89), and Oakley himself.

He concludes that, unlike the shift in thinking about natural law in the 14th and 15th centuries, thinking about natural rights was a slow evolutionary development from its 12th and 13th century origin to the 18th century when rights talk escaped from “the objective norms of natural law . . . to become identified with a modern version of moral conventionalism” (p.106).

Oakley’s third argument is that what precipitated the shift in thinking about laws of nature that fully manifested itself in the 16th and 17th centuries was the pressure brought to bear on the Neoplatonic or Aristotlian metaphysics or cosmology of scholastic thought by an insistence on the untrammeled freedom, transcendence, and omnipotence of God. This emphasis on will, or power, meant that the laws of nature were imposed rather than being an indwelling rationality or grounded in divine reason. Nature was contingent, and its order was a result of God’s self-imposed covenant.

Oakley concludes his scholarly-historical analysis with a brief reflection on consent theory. Here, rather than continuity, there was a clear discontinuity. The older view of consent was bounded by a sense that authority was from God; whereas in the 17th and 18th centuries there was a growing sense that “morality is entirely the contingent product of the interactions of individuals” (p.109, quoting Knud Haakonssen).

REFERENCES:

Bouwsma, William J. 2000. THE WANING OF THE RENAISSANCE 1550-1640. New Haven, CT: Yale University Press.

Tierney, Brian, 1997. THE IDEA OF NATURAL RIGHTS: STUDIES ON NATURAL RIGHTS, NATURAL LAW AND CHURCH LAW 1150-1625. Grand Rapids, MI: Wm. B. Eerdmans Publishing Company.

© Copyright 2006 by the author, Walter J. Kendall III.

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INEQUALITY AND AMERICAN DEMOCRACY: WHAT WE KNOW AND WHAT WE NEED TO LEARN

by Lawrence R. Jacobs and Theda Skocpol (eds). New York: Russell Sage Foundation, 2005.. 256pp. Hardcover. $37.50. ISBN: 0-87154-413-X.

Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu.

pp.746-750

Back in 2000, I was one of the signatories of an open letter published in PS sent in reaction to the now famous “Mr. Perestroika” e-mail calling for reform in the American Political Science Association and a new focus for the AMERICAN POLITICAL SCIENCE REVIEW (hereinafter APSA and APSR). Aside from governance issues in the APSA, at that time I had two overriding concerns for my profession. The first was widely shared by other scholars who signed the open letter. Like them, I was nonplussed by the lack of diversity of approaches and the often esoteric nature of articles published in the APSR. While, unlike some, I did not think that the “big questions” were being avoided altogether, I felt that some of the research presented in the journal was trying to kill substantive mice with quantitative or “rational choice” elephant guns.

I had another concern as well, one of which I suspect many of the others who signed the letter did not share. Although almost all of my research is quantitative, I was disturbed by a trend relegating empirical work to the sidelines in favor of “positive theory.” I had always thought of political science as what Freeman Dyson calls a “Manchesterian” science; i.e. non-experimental, historically contingent, and based on inductive descriptions that yield narrative theories grounded on probabilistic relationships. I thought that most of the good quantitative work I had seen in political science down through the years had been built on this model. The partial – it was never more – retreat I saw from letting the data drive theoretical advances gave me pause.

But that was then, and this is now. The book I am reviewing here shows how very much has changed in the best of political science scholarship since that time. This volume is a revised version of the report of the APSA Task Force on Inequality and American Democracy. Their report has already been the subject of widespread praise by many political scientists that share my continuing concerns about the profession’s direction. It is, not to put to fine a point on it, exactly what I was hoping would result from calling on political science to become a “post-autistic” discipline.

As most readers will know, the Task Force had a charge that is simple enough to state and horrendously difficult to fulfill: find out what existing research can tell us about the effect rising economic inequality has had on how democracy works in the United States. To begin to answer this question, Lawrence Jacobs and Theda Skocpol, the Task Force co-chairs, created three working groups to look into the effects [*747] of inequality on political voice (Kay Lehman Schlozman, Benjamin Page, Sidney Verba, and Morris Fiorina), governance (Larry Bartels, Hugh Heclo, Rodney Hero, and Lawrence Jacobs), and public policy (Jacob Hacker, Suzanne Mettler, and Dianne Pinderhughes). The executive summary and recommendations of the Task Force have been published in PERSPECTIVES ON POLITICS already along with critiques both there and in PS. Further, earlier versions of each working group’s reports have been available online for some time. INEQUALITY AND AMERICAN DEMOCRACY revises these initial efforts, presents them as a coherent whole, and sets out a research agenda for the future. Given the extensive attention already given the findings reported in the book, I will not rehash them here. To do so would require an essay considerably beyond the constraints of this review and my expertise. Instead, I will present four reasons why I think INEQUALITY AND AMERICAN DEMOCRACY is a template for good practice in political science today.

First, all aspects of the Task Force’s work tied normative concerns to empirical research. Or, to be slightly more blunt, the interpretations of research presented here are interesting for reasons that have public resonance. Each of the working groups gives us normative reasons why we should care about their analysis. The political voice group, for instance, begins its deliberations with a description of some well known aspects of public opinion concerning inequality, then immediately addresses the question of why one should be concerned about political participation and its effects on democracy. By tying together perspectives concerning the desirability of equal political voice, the difficulties of determining public choice given unequal participation, and the advantages greater resources convey for successful collective action, the actual value dilemmas involved in inequalities of voice are clearly delineated. Similar considerations are made concerning governance by using Pitkin’s typology of representation to evaluate institutional responsiveness and concerning public policy by looking to the contrast between the “rights revolution” and policy decisions. One can see the authors of the reports struggling with true public problems and taking the normative aspects of research seriously without at the same time becoming either tendentious or too sure of themselves.

The second aspect of INEQUALITY AND AMERICAN DEMOCRACY that I found refreshing was the willingness of the authors to study feedback effects. The central concern of the editors of the report is the contradiction between the startling advances in political equality and the equally startling increases in economic inequality found in the United States during the last quarter of the 20th century. Analyzing the aspects of this contradiction in different areas of concern to the working groups leads to even more emphasis on the need to look into the knots in our political process. The working group on governance has provided us with a good example of this kind of analysis. As they point out, American political parties have experienced resurgence in the electorate [*748] and appear to have become more “responsible,” as many have called for in the past. However, this new ideological coherence has had a feedback effect; it has contributed to economic inequality. More ideologically coherent Republican elites have become more attentive than ever to policies that transfer income to the upper end of the income scale. Further, Democrats have become more sympathetic to these transfers over time as they adapt to a political environment dominated by a conservative consensus, a consensus created and nurtured by feedback from the initial policy decisions. Further expositions of this kind of dialectic analysis can be found, for instance, in the treatment of the decline in participation in voluntary associations and its effect on participation by political moderates in the report of the political voice group or in the policy group’s case study of how the War on Poverty simultaneously increased economic equality and created a backlash against activist government.

Third, INEQUALITY AND AMERICAN DEMOCRACY is characterized throughout by clear presentations of data and a willingness to use multiple approaches to analysis. The data displays and tables all meet the criteria of Tukey’s Inter-Occular Trauma Test (i.e. the results hit you between the eyes). As a consequence, the graphs are thankfully free of chart-junk, and the tables, of superfluous inferential and descriptive statistics. I have not seen a clearer or more efficient presentation of supporting data since I read the Coleman Report for the first time. Equally impressive is the willingness of all involved to embrace different approaches. Here perhaps the exemplar is the report of the public policy working group. Their analysis is hampered by a lack of data generally addressing the feedback effects of public policy on economic and political inequality. Rather than throw up their hands, these scholars instead turn to a series of historical case studies (G.I. Bill, Social Security, and so on), showing clear evidence of the way that changes in the policy environment create, often at the same time, positive and negative feedback loops over time that have substantial effects on both political participation and economic inequality. Similarly innovative approaches can be found in the working group on political voice’s use of counterfactuals to analyze the effects of inequality on interest group participation or the interesting juxtaposition of studies of responsiveness of political elites at both the state and federal level in the governance group’s chapter.

Finally, INEQUALITY AND AMERICAN DEMOCRACY is characterized by a determined refusal to theorize in advance of the data. Indeed, if one were to gather anything from the working group reports, it would be that an immense amount of work remains to be done and that theory to guide that work so far has not advanced beyond some limited medium-range models. When Jacobs and Skocpol review the findings in the working group reports in the book’s last chapter, almost the entire emphasis of their treatment is on the continuing gaps in our knowledge about important aspects of the effects of economic inequality on American politics. Rather then pat political [*749] scientists on their collective backs, they point out that, among other things, intensive study is needed of the impact of changes in income distribution on participation over time, of how campaign contributions affect legislative behavior off the floor, or of how the “hidden welfare state” (i.e., welfare benefits delivered through subsidies to private actors rather than directly by the state) affects citizen perceptions of government. All these recommendations and others are tied to calls for more sophisticated methods of investigation – panel studies, analytical narratives, the revival of ethnographic studies, the need to incorporate international dimensions into research designs – to answer the empirical questions first, building theory as the data show us avenues to it.

As you can see, I think INEQUALITY AND AMERICAN DEMOCRACY is important and worth reading. We have our work cut out for us in studying inequality and its effects on our democracy. I found it a heartening, thought daunting, experience to read this book. That is, however, exactly the kind of experience I think political science needs today. Political science, as a discipline, is at what I have called the “Humphrey Davy stage” of development. In the early years of the 19th century, Davy was the first successful research chemist. He is remembered today not for his theoretical insights, but because his research, relentlessly empirical in nature, cleared the ground for subsequent work by laying out clearly which relationships could be supported and, hence, were worth theorizing about. That is the kind of endeavor outlined in INEQUALITY AND AMERICAN DEMOCRACY, and it is, I believe, exactly what we need to make political science better grounded and more useful.

INEQUALITY AND AMERICAN DEMOCRACY is more than a research agenda, however. The APSA has put useful ancillaries – a framework for graduate and undergraduate syllabi and a sample undergraduate syllabus – on the Task Force website (www.apsanet.org/content_4032.cfm) and is making attempts to collect additional materials. I think the book would be excellent as a research review and general backgrounder for courses at both levels on inequality and politics in the United States.

There is always something you wish had been included, even in books you find interesting and useful. That is the case here as well. “American Democracy in an Age of Rising Inequality,” the Task Force’s report to the APSA, ends with some recommendations about what to do about the difficulties they see for American democracy in the future. In many ways, those recommendations are the most interesting and controversial aspect of the report. I wish the Task Force had decided to link the research agenda laid out in INEQUALITY AND AMERICAN DEMOCRACY with the recommendations made in their report. It would have been enlightening to see what a group of such imminent scholars see as the most useful research paths to validate their proposed answers to our present conundrums. But perhaps it is unfair to criticize authors for a book they never intended to write. Their efforts here indicate to me that, despite some continuing [*750] concerns, there are real signs that the discipline has righted itself.

© Copyright 2006 by the author, Tracy Lightcap.

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REDISCOVERING A LOST FREEDOM: THE FIRST AMENDMENT RIGHT TO CENSOR UNWANTED SPEECH

by Patrick M. Garry. New Brunswick, NJ: Transaction Publishers, 2006. 175pp. Cloth $29.95. ISBN: 0-7658-0322-4.

Reviewed by Roger A. Shiner, Department of Philosophy, University of British Columbia Okanagan. E-mail: rshiner [at] exchange.ubc.ca.

pp.739-745

Professor Patrick Garry is madder than the proverbial wet hen. His book, REDISCOVERING A LOST FREEDOM, abounds in epithets like “vile,” “disgusting,” “filthy,” and the like. The targets of his distress are the entertainment media, who relentlessly douse us all in an irresistible flood of “raw violence and gratuitous sex” (p.5), and the courts, who with equal relentlessness strike down in the name of protecting a free market in speech all efforts by well-meaning citizens and governments to do anything about the problem. The book is not a very good book. It occupies an uneasy middle ground between pamphlet and treatise, with more rhetoric and less argument than one would expect of the latter. It originated in a number of journal articles, and has not matured much beyond its origin. There are many repetitions of idea and argument; “media” is indifferently a singular and a plural noun; there are three different versions in the book of the proposed legal substance of Garry’s “right of censorship” (pp.59, 65, 98). Stronger editing would have helped a great deal. However, even if its answers do not get us very far, the book asks some important questions that too few writings about freedom of speech are willing to ask.

The book does not develop its argument in a logical, linear fashion: rather, Garry approaches his proposals from a number of different directions in turn. I will therefore supply my own reconstruction of the argument. Garry’s thought seems to be this. There are all kinds of damaging stuff being broadcast right now: media entertainment is filled with raw violence and gratuitous sex. It is damaging because it negatively impacts individual autonomy and flourishing: it cramps self-realizing choices. No one should be forced to view/listen to this stuff, but you cannot get away from it: it is everywhere. Especially – it is impossible to protect children from it, and it is especially damaging to them to view/hear it. Ideally, the individual would be able to exercise a free choice whether to consume this material without affecting the free speech rights of speakers/broadcasters/publishers. But practically, the technology does not exist to allow individuals a free choice to view/hear or not view/hear even in the privacy of their own homes. The problem therefore will have to be solved by government regulation “upstream” near the source (the broadcasters/publishers), not “downstream” in the hands of the end-listener/viewer. Such an attempt at regulation will prima facie run afoul of freedom of speech principles that privilege the speaker/broadcaster/publisher over the listener/viewer. We therefore need some device/some argument/some value/some [*740] principle that is as powerful as, if not more powerful than, a speaker’s right of free speech in order to overcome these speaker-centred principles/values. That device is a constitutional “right to censor,” or a “right of control,” on the part of the listener/viewer. If such a right existed, it would outweigh a speaker/broadcaster/publisher right of free speech, and government regulation of broadcast or published content could be constitutionally legitimate. And in fact such a right does exist: it is an implication of freedom of speech/expression construed as freedom of communication. We just need to re-orient our constitutional thinking to reinstate the right, to “rediscover” the “lost freedom” of the book’s title. However, not just any form of speech would have exposure to such a right of control. Only “lower value” speech, such as pornography, raw violence, gratuitous sex and the like, would have exposure. In particular, political speech would not be exposed to a right of censorship. Garry adopts the Meiklejohnian view that the essence of the First Amendment is the protection of political speech: only it deserves the strong protection courts currently afford to other forms of speech as well in furtherance of the so-called “market model” of freedom of speech.

Garry’s opposition to the “market model” for freedom of speech is to be welcomed. As Frederick Schauer has rightly emphasized for almost thirty years (Schauer 1979, 1982), “speech” in the phrase “freedom of speech” is a technical term, the parameters of whose meaning are given by a prior theory of what values such freedom serves to promote. Given those values, it then becomes an open question, not an axiomatic assumption, whether a “free market” in speech best promotes those values. One cannot, although some appear to want to try to, begin with the assumption of a free market in speech and declare whatever state of society results as the best society. As a parent with elementary-school-age children, I share Garry’s concern about the sheer quantity of random violence on children’s television and in video games. (It hardly seems fair, however, to speak as a Canadian, to lay all the blame at the feet of the media, when the National Rifle Association is among the most powerful lobby groups in Washington and the U.S. Constitution contains the Second Amendment.) So I support Garry for raising these issues. On the other hand, from a technical point of view, I am unimpressed by Garry’s actual theory. Here are some substantial concerns.

1) The book oscillates between two really quite different views of the purpose of the proposed private right of censorship and the harm at which it is directed. At times (and in two of the three formulations of the legal substance of the right) Garry speaks as though the goal is to give parents, educators and other interested citizens an effective tool in protecting their children from “media entertainment that is filled with raw violence and gratuitous sex,” on the ground that exposure to such material is damaging to children’s own personal development. At other times (and in one of the three formulations), Garry urges the much broader thesis that such dire media entertainment is psychologically and emotionally damaging to anyone [*741] exposed to it, even adults. Likewise, the effect of the right is at times said to be to strengthen parents’ ability to choose what television or movies or video games their children watch/play, and at times it is said to be to strengthen the ability of the individual generally to choose whether to watch “adult” entertainment. These are not interchangeable theses. Familiarly, paternalistic justifications might exist in the one case that would not in the other. The book does not address this ambiguity at all. Moreover, in its firm assumption that sexual content and violent content cannot but obstruct personal growth, and so self-realization is best achieved apart from them, the book is deeply conservative. We grow, according to Garry, by conserving and walling in the values we have and not by exposing them to challenge.

2) Garry is of course not the first person to suggest that “freedom of speech” is best theorized as “freedom of communication.” The idea seems to follow from Jürgen Habermas’ theory of communicative action (Habermas 1984; Solum 1989). Freedom of communication, though, is typically appealed to in order to justify considerable government regulation of broadcasting and other media. See, for instance, Richard Moon’s discussion of freedom of expression in Canada (Moon 2000). Moon is quite clear that, if freedom of expression is theorized as freedom of communication, the implications for the media industry are significant, and even economically redistributive. Garry is careful to seek to avoid this. He denies that the proposed private right to censor is a positive liberty or an entitlement: it is, he says, a negative liberty. “It would operate solely as a constitutional defence of government regulations seeking to facilitate such a right” (p.65).

This is confused. A negative liberty is a “freedom not,” or a “freedom from”: but what is the “not” or the “from” here? It is a freedom not to have no choice about viewing or listening to raw violence and gratuitous sex. It is a freedom from the grip of the entertainment industry on our personal lives and the lives of our children. Then, though, the freedom is a freedom “to not . . . not”, and two negatives make a positive. Garry’s desired freedom is a “freedom to” after all, a freedom to choose. For good liberal-democratic reasons, Garry wants his “right to censor” not to be a right of the government to regulate in what it sees as our best interest. The right is supposed simply to create a space in which we make our own choices about what to view/listen to. That is why Garry tries to position the right as a negative liberty. But the fact is that that space is to be created by government regulation. The right of censorship is a right to have the regulation that creates the space. It is a positive liberty after all.

3) As part of his attempt to subsume his proposal under freedom of speech theory, Garry often speaks of it as a listeners’ right. He thinks in fact, with some justification, that current First Amendment jurisprudence in the U.S. overvalues speakers’ rights and undervalues listeners’ rights. The argument seems to be: If freedom of speech is freedom of communication, then there have to be listeners’ rights as [*742] well as speakers’ rights, since communication involves both a speaker and a listener. The right of censorship is a listener right. Therefore it is a free speech right.

That is, though, a confused argument. A listener may indeed have a right not to be forced to listen to or view things that they do not want to listen to or view. But such a right is not necessarily a speech right at all. I have argued at length elsewhere (Shiner 2003, Chapter 10) that the idea of a listener free speech right in itself is hard to isolate except in certain narrow, mostly political, contexts. What courts and commentators refer to as “listeners’ rights” are almost always transferred speakers’ rights, or rights of privacy. Rights of privacy are not the same as free speech rights: their justification is different. Rights of privacy conflict with speakers’ free speech rights all the time – telemarketing, door-to-door selling and canvassing, sound trucks, e-mail spam, . . .; the list goes on. Courts navigate these conflicts by balancing the two rights against each other as best they can.

Intuitively, the proposed right of censorship would seem to be a form of right of privacy, not a free speech right. It should be, for example, a private choice whether to allow one’s children to watch violent cartoons on TV. The entertainment industry, allegedly, takes that choice away by broadcasting nothing but violent cartoons. It is one’s privacy that seems to be invaded, then, not one’s right of free speech. Garry ignores the whole issue. He calls the proposed right of censorship a privacy right and a free speech right indifferently. Thereby, he is able to divert the plausibility of a strong right of privacy against speakers’ free speech rights to serve the ends of a supposed listener free speech right, but that is fundamentally just an equivocation.

Garry’s fear, I think, is that a right of privacy is not going to be weighty enough in the balance against speakers’ free speech rights. He is spooked by the famous “trash can” argument. In response to government attempts to ban the delivery of advertising material, the U.S. Supreme Court argued that “the ‘short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned’” (Bolger at 72, quoting Lamont at 883). The limit of the privacy right, on this view, is the choice whether to put the leaflet in the trash can or read it. Given that the problem with “media entertainment that is filled with raw violence and gratuitous sex” is in Garry’s view that you cannot stop it coming into the house, there is no functional analogue to the journey to the trashcan. The child is already exposed before the adult catches on and turns the TV off, or unplugs the Internet connection. It should be noted that the Court itself has already backed off from the Bolger position in the case of lawyer solicitation. The Court upheld a Florida ban on lawyer direct-mail solicitation. The Court reasoned that the “short, though regular, journey from mail box to trash can argument would be an inadequate response in situations where the mere receiving and opening of the mail would be enough to cause the harm the state had an interest in preventing” (FLORIDA BAR, at 2379). This case [*743] would provide strong support for Garry’s view, but it seems surprisingly to have escaped his metal detector.

Technology, Garry says, is no substitute for constitutional rights and doctrines (p.64). His point, in itself a valid one, is that currently technologies such as the V-Chip and Video On Demand are too fallible to leave it completely to the listener/viewer to control whether a particular program or web page is viewed or listened to, if the listener/viewer is to exercise choice meaningfully. But it does not follow that there is anything wrong with conceptualising the resulting right to censor as a privacy right rather than a free speech right. The weakness of the “downstream” technology is what drives the argument for “upstream” regulation, not the fact that communication requires a listener. If foolproof technology were available, preventing a child’s access to undesirable material would be like not answering the doorbell, or not opening the mail solicitation, as opposed to being like a journey to the trashcan.

4) Even foolproof technology would not help in the absence of reliable prior indications as to the nature of the material being broadcast or published. Garry therefore rightly spends some time on the matter of reliable ratings attached to material offered for viewing or listening. He also rightly sees that an official government rating scheme, for instance, would take us back to the bad old days of movie Boards of Censors and the like. He wants the individual to be able to carry out his or her own censoring. He also rightly sees that different kinds of people are going to develop different kinds of rating schemes to serve different kinds of interests. So how is all this going to be operationalized? “A better system would be to give private third parties the ability to provide ratings that could in turn be accessible to media users. These outside ratings, done by groups known and trusted by individuals, would inspire a greater confidence and reliance than is accorded the present ratings system” (p.101). A religious parent would look for ratings provided by a known religious group, and so forth. This is an example of an “upstream” piece of regulation that constitutionally would rest on a private right of censorship and that would outweigh in the constitutional balance a broadcaster’s right to be free of such regulation. Labelling schemes are standardly acknowledged not to be in conflict with speakers’ rights.

All right – but this is in the context of making it mandatory for the broadcaster to provide these ratings ahead of the choice whether to watch a TV program, for example, so the choice is meaningfully autonomous. I cannot see how this practically would work. There are hundreds of interest groups out there, representing hundreds of different interests potentially with a stake in knowing what is being broadcast when. How will a broadcaster make ALL of these available? If it is left to the political process to select, say, five of these rating systems only to be mandatory, the problem of being deluged with material one deems undesirable will simply reappear. If it is left to the government to select the five, the problem of government paternalism will simply reappear. The thought is [*744] appropriate – don’t force people to watch things; provide them with reliable information so that they can make their own decisions. But without attention to the real-life difficulties in making such a proposal work, the proposal is pointless. The book contains no such attention.

There are good things in this book. There is, for example, an excellent discussion on pp. 56-59 of the merits of “opt in” approaches to speech regulation as opposed to “opt out” approaches, and of the arbitrariness of the reasons courts have typically given for regarding the First Amendment as excluding the former and mandating the latter in order to respect speakers’ rights. Moreover, at a time when scholars tend to be not merely freedom of speech experts but specifically religious speech experts, or commercial speech experts, or broadcasting experts, Garry makes a commendable attempt to build a wide-angled argument drawing together cases from a variety of speech contexts. Even if, as I believe, some of the resulting bricks have a straw-like composition, there is much to be learned from attempting such a broad viewpoint.

Given the unfashionableness both in the ivory tower and on the bench of the position Garry adopts, one is tempted to defend the shortcomings of the argument by saying that the book presents pioneering work — except that the book isn’t exactly pioneering. Freedom of speech as freedom of communication has been defended before, and even embraced decades ago by the FCC in the much-maligned Fairness Doctrine. The possible superiority of privacy rights to free speech rights is not a new issue either. The new element in Garry’s approach is the seemingly paradoxical idea of a “right of censorship”. However, one looking for a sophisticated defence of this idea will learn more from the weaknesses of Garry’s book than from its strengths.

REFERENCES:

Habermas, Jürgen. 1984. THE THEORY OF COMMUNICATIVE ACTION. (Translated by Thomas McCarthy). Boston: Beacon Press.

Moon, Richard. 2000. THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION. Toronto: University of Toronto Press.

Schauer, Frederick F. 1979. “Speech and ‘Speech’ - Obscenity and ‘Obscenity’: An Exercise in the Interpretation of Constitutional Language.” 67 GEORGETOWN LAW JOURNAL 899–933.

Schauer, Frederick. 1982. FREE SPEECH: A PHILOSOPHICAL ENQUIRY. Cambridge: Cambridge University Press.

Shiner, Roger A. 2003. FREEDOM OF COMMERCIAL EXPRESSION. Oxford: Oxford University Press.

Solum, Lawrence B. 1989. “Freedom of Communicative Action: A Theory of the First Amendment Freedom of Speech.” 83 NORTHWESTERN UNIVERSITY LAW REVIEW 54–135. [*745]

CASE REFERENCES:

BOLGER v YOUNGS DRUG PRODUCTS CORP., 463 US 60 (1983).

FLORIDA BAR v WENT FOR IT, INC, 115 SCt 2371 (1995).

LAMONT v COMMISSIONER FOR MOTOR VEHICLES, 269 F Supp 880 (SDNY) at 883, summarily affirmed 386 F 2d 449 (1967) (USCA 2nd Cir), certiorari denied 391 US 915 (1968).

© Copyright 2006 by the author, Roger A. Shiner.

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PURPOSIVE INTERPRETATION IN LAW

by Aharon Barak (translated by Sari Bashi). Princeton: Princeton University Press, 2005. 464pp. Cloth. $47.50/£32.50. ISBN: 0691120072.

Reviewed By Ronald Kahn, Department of Politics, Oberlin College. Email: Ronald.Kahn [at] Oberlin.edu

pp.708-738

Introduction

Aharon Barak, a constitutional scholar of international reputation and the President of the Supreme Court of Israel, has written a complex, provocative, and subtle theory of legal interpretation. It is must reading for social scientists and legal theorists, as well as for jurists and other legal practitioners, who seek to witness the complexities of contemporary judicial decision-making. Barak has set his scholarly objectives high in this work. He writes that it is “an original attempt to construct a comprehensive theory of interpretation applicable to all legal texts (will, contract, statute, constitution and everything in between)” (p.xi). Barak believes that there should not be separate systems of interpretation for different kinds of legal texts. He seeks to unify interpretive theory while recognizing “the uniqueness of each kind of text and the interpretive emphases characteristic of it” (p.xi). Barak seeks to resolve the tension between the objective of a general theory and the uniqueness of each kind of text though the second major innovation of the work, his concept of purpose. He writes: “Purpose is an expression of the internal relationship (which changes according to the type of text) between the intent of the specific author (‘subjective’) and the intent of any reasonable author (‘objective’) (p.xi). Thus, unlike originalism and other legal theories, “legal purpose is not simply authorial intent at a high level of abstraction” (p.xi). Barak views the unique characteristics of purposive interpretation as providing a) a comprehensive concept of interpretation; b) a holistic interpretive perspective; c) a structure of interpretive “laws”—which resolve conflicts between the intent of the author and the values of the legal system; and d) an acknowledgment of the importance of judicial discretion while restricting it to some degree (p.xii). Barak hopes that his system of interpretation establishes criteria for determining the legal meaning of the text, within its semantic boundaries (p.xiii).

Moreover, for wills, contracts, statutes and constitutions, the importance to the interpretive process of the subjective and objective purpose is to be weighed differently. Within statutory interpretation, the role of subjective and objective purpose will vary in different sorts of statutes. Barak argues that in young, specific, and rules-based statutes, subjective purpose would prevail, while for old, general, and standards-based statutes, objective purpose would weigh more heavily. I will center my discussion on the interpretation of constitutions, along with a more limited discussion of statutory interpretation. [*709]

In constitutional interpretation, “objective purpose is most important. But subjective purpose is useful in deciding among conflicting objective purposes” (p.xv). The goal of interpretation according to Barak is “to achieve the purpose of law, in general, and of the individual legal text as part of it, in particular”(p.xv). Therefore, the core of the enterprise is to provide a theory of what constitutes the rule of law in an age when all law is constructed. We see this in Barak’s listing of some of the fundamental assumptions of this book: 1) “There is no true interpretation, because the reader accesses a text only after interpreting it” (p.xv). Thus, the goal should be to find the best system of interpretation so that texts and the system as a whole achieve their goals; 2) “Human beings are complicated creatures, and . . . no one explanation, no one theory, and no one system can encompass the full complexity of the human condition. My theory is eclectic” (p.xvi); and 3) “The selection of a proper system of interpretation . . . should express the role of the judge in a democratic society” (p.xvi). As such, the role of the judge is related to the wider values of the system of government.

To witness the complexity and theoretical richness of the book, it is best to describe the chapters within its three parts: Part I, Interpretation (Chapters 1-2, on legal interpretation and non-interpretive practices; Part II, Purposive Interpretation (Chapters 3-11, on the essence of the semantic and purposive components of purposive interpretation, as well as chapters on the following issues of legal interpretation: subjective purpose: authorial intent, objective purpose: intent of the reasonable author and intent of the system, the ultimate purpose of the purposive component, discretion in purposive interpretation, theoretical basis of purposive interpretation, and purposive interpretation and its critique of other systems of interpretation); and Part III (Chapters 12-15, on the interpretation of wills, contracts, statutes, and constitutions).

The major points in Part I are the following (pp.3-5): 1) Interpretation is “a rational activity that gives meaning to a legal text”; 2) “Resolving . . . contradictions in a given legal text constitutes [interpretation]”; 3) Whether resolving contradictions between legal documents constitutes interpretation depends on “the tradition of a given legal system” –Barak views such resolutions as non-interpretive –; and 4) whether “filling in a lacuna or gap in a legal text constitutes interpretive activity” also depends on the legal system (he would generally include this, as well as correcting errors in a text, to be interpretation in a broad sense but not in a narrow one).

Barak makes a clear distinction between semantics (and hermeneutics) and the legal meaning of a text, because the legal meaning of a text is normative (pp.6-7). Semantic meanings include every meaning that could be attached to a particular text, but legal meaning is about choosing among those possibilities—which is interpretation. Barak emphasizes that usually there is only one semantic meaning and it equals the legal meaning, but sometimes things are more ambiguous. “Interpretation is [*710] more than mere linguistics, but rather requires us to find the normative message arising from the text” (p.8). “Legal interpretation is part of the science of hermeneutics” (p.55) because “[i]nterpretation requires the interpreter to adopt an objective attitude toward the text,” and “understanding a text requires its comprehension as a whole” and the connections between parts and wholes (p.57). However, general hermeneutics is only somewhat useful in defining and engaging in legal hermeneutics, because hermeneutics does not determine which system of interpretation should be used (p.58), and because “law is distinct for its power to coerce . . . The interpretation of a legal text is ‘normative’ interpretation” (p.59). Therefore, legal interpreters must resolve ambiguities rather than exposing various meanings, both in “declaring existing law” and in “creating new law that articulates the rights and responsibilities of members of society” (p.60). It is the importance of the normative nature of legal decision-making which seems to set the parameters of this most interesting and comprehensive theory of legal interpretation.

Barak also emphasizes that the theory or concept of interpretation which he seeks to provide is distinct from the various systems of interpretation found among nations. Thus, interpretation is not about determining the “true” meaning of a text, because this is impossible; instead, Barak argues that we should search for the “proper” meaning of the text knowing that the process is both discretionary and bounded for judges (p.9). Thus, the “object” of interpretation is the text, while “the norm extracted from the text is the product of interpretation” (pp.11-12). There is no meaning without interpretation, so “every text requires interpretation” (p.12). While most texts do have “plain” meanings, which allow for only one correct reading, these texts still require an initial conscious (or unconscious) interpretation to determine they are plain texts (p.14).

Creating Implied Rights

Judges do essentially create new texts, and when they do so these acts may be legitimate but are not defined as interpretation (pp.14-15). When they step outside the limits of interpretation, judges must find another source of legitimacy (pp.16-17). And this is where constitutional theory plays an even larger role in Court decision-making. Barak writes, “The limits of the text set the limits of interpretation in law, and the limits of language set the limits of the text” (p.18). So the limit of interpretation is that it gives each text a meaning the language can bear: “An interpreter may not give a text a meaning that a linguist could not give it” (p.19). This also applies to constitutional interpretation—even where there is vague language, judges still can not ascribe a legal meaning to a constitution that is unrelated to the text therein (p.20). Most importantly, it is also possible to “take into account the implied language” of a legal document (p.21) in interpretation—i.e. structure, organization, and the like (p.22).

For Barak, the text is outward-looking. He writes, “The challenge of interpretation [is] to decide what the [*711] general rule means in specific factual situations” (p.26). The key problem is the relationship among text and context/form and substance (pp.26-27). Barak seeks “to understand the form and to develop it in light of its substance” (p.28). This problem of form versus substance brings up various sub-questions: 1) “What is the substance that gives meaning to the form? Is it the subjective intent of the text’s author or the objective goal of a reasonable author?” (p.28). 2) “Is the (subjective) intent of the text’s author his or her ‘true’ intent . . . or is it the author’s ‘expressed’ intent?” (p.29); and 3) “What is the ‘objective substance’ of the text, and how is it determined?” (p.30).

A scholar also must ask of interpretive and constitutional theories how they deal with the concept and substance of non-interpretive doctrines of law. Barak does so in a straightforward way. He writes, “Non-interpretive doctrines operate beyond the language of the text. They impart a right according to the text, even though that right is not grounded in the language of the text” (p.61). He emphasizes, “Non-interpretive doctrine is considered interpretive in the broadest sense of the word since it is closely related to interpretation” (p.63). He notes that the five main non-interpretive doctrines are: filling in a gap in a text (pp.66-74); resolving a contradiction between two separate texts (pp.74-77); correcting a mistake in a text (pp.77-80); changing the language of the text in order to prevent an absurdity (p.80); and fulfilling the purpose of the text by making a change (“doctrine of approximation”) (pp.80-81). Barak accepts all five non-interpretive doctrines as legitimate.

With regard to American constitutional law, filling in constitutional gaps predominates. He writes, “In American constitutional law, there is a trend toward recognizing human rights implied or created in the penumbra of existing rights” (p.70). Barak argues that it might be better for our legal system to recognize this practice and center discussion around it as a non-interpretive practice, and to realize that the practice of filling in gaps in different legal texts should employ different standards. Barak offers guidelines for interpretation under the five non-interpretive doctrines. The objective is defining and drawing out contradictions found when engaging in the interpretive process.

Law (Legal Institutions) as Compared to Politics (Political Institutions)

Barak is quite clear about the relationship between law/courts and politics/ political institutions. He writes, “I reject the view that law is politics, that interpretive activity is simply political activity, and that the interpreter acts according to his or her political whims, unguided by interpretive rules. . . Judicial discretion exists, but it does not undermine the foundations of the interpretive project. It is, rather, part of that project” (pp.38-39). And interpretive rules are key to making this so. Without interpretive rules or law being separate from politics, “social life would be impossible” (p.38). Barak emphasizes that the legal character of interpretive rules requires that: 1) They, themselves, must be interpreted; 2) They [*712] “consist of both principles and rules;” and 3) “The interpretive norm is a matter of law, not fact” (pp.47-48). The process is discretionary and disciplined, in part because of the acceptance by judges and the people of the interpretive rules themselves. Thus, for Barak, interpretive rules serve both practical and theoretical functions: guaranteeing rationality in legal thinking, making possible critical evaluation of an interpretation, legitimizing interpretation, making interpretation more objective, “preserv[ing] the independence and autonomy of the judicial process,” and “aiding in the development of law.” Institutionally, for Barak, there is a unique role for the courts, especially in democracies. He writes, “Judicial interpretation is unique [as compared to that of other branches and of individuals] in that it is binding” (p.51). “Because judges are not accountable in the same way as politicians are, they can express the legal system’s fundamental values, central to which are human rights” (p.52). However, judges must balance the judicial discretion that is central to purposive interpretation against the possibility of unlimited judicial creation of laws (pp.52-53).

An Integrative Subjective-Objective Theory

Barak emphasizes that, unlike standard uses of the term purposive interpretation in Anglo-American or Continental legal theory, his concept is “neither entirely subjective nor entirely objective” (p.89). He writes, “I see purpose as a legal construction, like concepts of ownership, right, and duty. It combines subjective elements (subjective purpose, author’s intent, subjective teleology) with objective elements (objective intent, the intent of the reasonable author and the legal system’s fundamental values, objective teleology) so they work simultaneously, rather than at different phases of the interpretive process” (p.88). He writes, “The interpretation is purposive because its goal is to achieve the purpose that the legal text is designed to achieve” (p.88). Thus, at the core of his theory is the interpretive turn which is simultaneously normative and empirical. The two cannot be separated analytically.

There are three components of purposive interpretation: language, purpose, and discretion (p.89). Language, or the semantic component, “sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear” (p.89). The purposive component is a “normative concept,” a “legal construction” – “the function that the text is designed to fulfill” (p.89). The purposive component is “the synthesis between a norm’s objective and subjective purposes” (p.91). The main role of the discretionary component is in “determining the ultimate purpose, after assigning the appropriate significance to each presumption [for both subjective and objective purposes] and resolving the conflicts among them” (p.92).

Because purposive interpretation is a general theory designed to be applied to all sorts of legal texts, it also allows for individual treatment of different sorts of documents. The way to distinguish among the interpretation of different texts is that subjective and objective purposes will be weighted differently for different texts. Secondary distinctions [*713] then come into play: age, scope of issues the text treats, regime that created the text, content-based factors, and so on (p.94). A goal for Barak is a “synthesis and integration between the text and the legal system” so that one general theory can work for all texts (p.95). Thus, I would conclude that a scholar must apply this general theory to the various texts found in a nation’s legal system, and develop a theory of legal interpretation for that nation, and then compare the findings among many nations. Alternately, a scholar could seek to compare, for example, the interpretation of wills among different nations after having created a general theory of legal interpretation among several nations. This theory and its usefulness for future scholarship in part rest on its inherently comparative character.

Interpreting Texts in Time—The Normative Significance of Purpose

Barak considers how a jurist and scholar might read a text. A text could be interpreted using the meaning of the language in it at the time it was written or at the time it is interpreted, and either choice could be correct depending on the circumstances (pp.98-99). In terms of the use of language, Barak writes that legislatures are obligated “to formulate statutes in a language that is understandable to members of a given society” (p.104). He then distinguishes between explicit and implicit meaning in legal documents and argues that both are part of the range of semantic meanings of documents (pp.104-105). He also discusses implied meaning, which refers to a gap in the text that a judge might fill through non-interpretive means (pp.105-106). Judges should assume that texts are using language in the “natural and ordinary” meanings of the words, but should allow for the possibility that “exceptional and special language” is being used (p.106). Barak writes, “Most legal systems have canons for understanding legal language” (p.107). Barak argues that these canons should be treated as semantic rules rather than legal rules—that is, “They help determine the range of a legal text’s semantic possibilities. They determine the meaning that the text is capable of bearing. They do not determine the legal meaning that the text bears” (p.107).

Barak discusses the essence of purpose. He writes, “The purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text” (p.110). Purpose is different from intent: “The purpose of a constitution is not to realize the intent of the founders. The purpose of a constitution is to provide a foundation for the social structure and its fundamental values” (p.111). In determining purpose, judges should look to the relevant context of the text, which is defined as “the data that provides information about the text’s purpose” (p.111). “Purposive interpretation sets guidelines for determining the purpose” – a judge may not simply assign any purpose he or she wants to a text (p.112). These guidelines help us determine how subjective and objective purposes interact. Barak notes two key principles for judges to follow: 1) “Both subjective purpose and objective purpose accompany the interpretive process from beginning to end . . . The judge decides how much weight to give the subjective [*714] or objective purpose at the end of the interpretive process;” and 2) “There is no principled starting point that gives preference to subjective or objective purpose” (p.113). One can see the radical nature of this point, given that many constitutional theories are built on such a preference.

Although bounded, interpretation requires much discretion. This is because texts have multiple purposes, which often exist at different levels of abstraction. Therefore, two steps are required in determining the appropriate level of abstraction: first, “[t]he level of particularity or generality of the subject regulated or addressed” must be determined and then “[t]he extent to which the content at the core of the normative arrangement is value-laden” (p.115). Judges should presume that the various purposes of a text (both subjective and objective, at different levels of abstraction) are in harmony, though this presumption can be rebutted (p.116). Using purposive interpretation, “an interpreter must make every effort to resolve contradictions among the different purposes . . . [taking] all the purposes into account and [trying] to synthesize them” (p.117). It is significant with regard to the duties of a judge that Barak writes, “If, after all efforts, the purposes do conflict, the judge must choose among them. He or she should use pre-established rules and criteria to do so or, as a last resort, discretion (p.117). Barak writes that various systems of criteria for establishing purpose could be used, and offers one of his own. (pp.118-119).

Subjective Purpose: Authorial Intent

In Chapter Six, Barak describes “The Essence of Subjective Purpose” to be authorial intent. He writes, “The subjective purpose of a legal text is the subjective intent of its author” (p.120). Intent “includes the values, objectives, interests, policy, aims, and function that the author(s) sought to actualize” (p.120). This purpose is the “real” purpose of the text at the time it was created, not a hypothetical purpose that the text might have had (p.121). Interpreters should consider the “true” intent of the actual author, not that of a reasonable person (p.123). Information about the intent of the author(s) can come from sources outside the text itself (p.122).

Although it may be difficult, Barak argues that it is possible to determine the actual intent of the author, even if this is a subjective measure (p.124). However, because there will be different subjective purposes, “subjective purpose usually does not lead to an unequivocal interpretive conclusion. . . While subjective purpose is relevant to the interpretive process, by itself it is insufficient to complete the interpretive process” (p.126).

While the concrete or consequentialist intention of the author of a text should be taken into account in determining the abstract subjective purpose of a legal text, Barak emphasizes that “the judge—not the author—is the authorized interpreter of a legal text,” and so the “author’s concrete intention weighs in no more heavily than abstract purpose”(p.127). Barak argues this while also emphasizing that concrete intention will weigh more heavily in some texts [*715] (wills, contracts) than in others (statutes, constitutions): for example, “The interpretive intention of the members of the constitutional assembly is relevant only insofar as it teaches about their abstract intention” (pp.128-129). Barak asks the important question: How is it possible to determine the subjective intent of a multi-member body like a legislature (or, worse yet, a referendum!) (pp.129-130)? In principle, Barak argues that subjective intent should always be taken into account, although practically (as with a referendum), this may be impossible (p.130). Barak argues that it is possible to “discover an intent formulated in the past,” and although it may not be perfect, a judge can “make a real attempt to arrive at the best substitute” (p.130).

For determining the intent of multi-member bodies like legislatures, Barak argues that “we should formulate a ‘theory of legislative organs’ that will set rules deciding under which circumstances we should consider the intents of which members of the legislative body to be the intent of the legislature” (p.132). Moreover, “an interpreter should not seek the motivations that propelled the members of the legislative body to vote in favor of the statute but rather should focus on the general objectives they sought to achieve” (p.134). Once determined, the subjective purpose of a multi-member body may not be useful to the interpretive process, but it is still important not to pretend it is impossible to determine or completely irrelevant (p.134).

Judges both look within and outside the text to determine subjective purpose. Judges find out about subjective purpose from a) the text itself (internal) and b) the context in which the text was created (extrinsic) (p.135). Barak emphasizes that internal information is generally more credible and should be afforded more weight, but that this will not always be the case (p.136). In determining purpose from internal sources, the judge must consider the text as a whole rather than as pieces, even though he or she is not asked to interpret the entire document (pp.137-138). Barak writes, “Interpreters infer subjective intent from the structure of the text as a whole and the divisions by which the author arranged its parts” (p.139). In determining subjective purpose from extrinsic sources (the “circumstances” under which the document was written), Barak asks whether a judge may consider circumstantial evidence (p.141). Barak decides that purposive interpretation allows the judge to “refer to the circumstances under all circumstances . . . a judge may move freely from text to context and back” (p.143). Barak writes that “[t]his approach is superior because it takes subjective purpose seriously. If interpretation is to take the subjective aspect seriously, it should look at every available source” (pp.143-144). Finally, Barak writes, “A text’s subjective purpose is presumed to determine its ultimate purpose” (p.145). This means that “Like any presumption, it turns to laws governing the status of subjective purpose . . . from rules into presumptions” (pp.145-146), affording subjective purpose a needed flexibility. Thus, the presumption may receive a [*716] different weight depending on the sort of text being interpreted.

Objective Purpose: Text and the World outside the Court

In Chapter Seven, Barak does a fine job of defining what he means by objective purpose. He writes, “The objective purpose of a legal text is the intent of the reasonable author. At a high level of abstraction, it is the ‘intent of the system’” (p.148). This is where hypothetical intent rather than actual intent comes into play. Objective purpose is “a legal construction that reflects the needs of society. It is an expression of a social ideal” (p.148). However, it is not unlimited because it must “operate within the limits of the text” (p.148). Thus, at the core of legal interpretation is what I have called in my work the social construction process.

The problem for each interpreter of a text is to determine the level of abstraction of objective purposes. Barak argues that the level of abstraction of objective purposes is determined by “the level of particularity or generality of the author of the text” (pp.149-150) and by “the degree to which the text is value-laden” (p.150). To determine this, Barak defines four levels of abstraction:

1. Low Level (“Imaginative Reconstruction”): “focuses on the author(s) of the text, inquiring into the values, objectives, designs, and function that the authors . . . would have wanted to actualize had they been asked to resolve the legal questions before the judge” (p.150).

2. Intermediate Level (Purpose of a Reasonable Author): “disengages from the individuality of the author and turns to the imaginary figure of the reasonable person” (p.151).

3. High Level (Purpose Derived from the Type and Nature of the Text): “looks at the type and nature of the text . . . [and asks] what typical purpose characterizes a certain kind of text” (p.152).

4. Supreme Level (Purpose Derived from System’s Fundamental Principles): “The judge consults the legal system’s general values, from which he or she tries to derive the legal text’s objective purpose” (p.152).

When documents have multiple objective purposes, Barak argues that they should be treated by judges as presumptions, so that the various purposes can be balanced rather than just eliminating purposes when they conflict (p.153). The need to recognize and consider multiple purposes seems to lead to more forthright constitutional interpretation. Moreover, one can see that the judge has an awesome responsibility, and the level of his discretion increases with the presence of multiple objective purposes (and presumptions) with their increasing levels of abstraction.

Most importantly, for Barak, “Objective purpose changes with time” (p.154). Supporting the idea of interpretation of text as a living process, Barak writes, “Judges should give the values and liberties grounded in it a contemporary meaning” (p.155). This will be true even for documents like wills or contracts, not just constitutions, yet in different degrees (pp.155-156). [*717]

As with subjective purpose, objective purpose can be determined through an analysis of internal and external sources (text and context) (p.157). Again, the text must be studied as a whole (pp.157-158). Appropriate external sources include related texts, as well as the “natural environment” of the text (i.e. “the immediate normative layout in which the text in question operates”) (p.159). With regard to constitutional law, Barak urges judges to seek harmony and unity in interpreting a constitution—again, no part should stand alone but the document should be studied and understood as a whole (pp.159-160). Other key external sources include “the general system of legislation and case law” (p.160), “the history of the text’s creation” (p.161), social and historical background – especially for constitutions and statutes (p.161), case law (pp.161-162), jurisprudence and legal culture (p.162), basic values of the system (p.163), and comparative law (p.169).

To help the reader understand what he means by objective purpose, Barak emphasizes that Cass Sunstein’s (1990) “background norms” are “part of the objective purpose that the text is designed to achieve. Judges translate them into presumptions about the purpose. These presumptions reflect the essence of the legal system, its aspirations and aims, and its constitutional viewpoint” (p.170). Basically, Barak is talking about the general presumptions that judges make about the purposes of statutes based on the fundamental values of society. Different legal systems accept different categories of presumptions. Therefore, this theory has utility in the emerging field of comparative legal theory and law. Barak writes that “assumptions about the (general) objective purpose of a text are legal norms that the judge must take into account. . . . Every purposive presumption has a ‘weight’ that varies with the weight of the fundamental value from which the presumption is derived” (pp.174-175). Although purposive presumptions always apply, not every presumption would apply to every text, because “if the language of a text cannot bear the purposive presumption, it does not apply to the text” (p.175).

Most importantly, the role of the judge is to “identify conflicting interpretive rules that create clashes between purposive presumptions which reflect clashes between values and principles” (p.176). The role of the judge is to resolve contradictions between purposive presumptions; judges must find “the proper balance between the conflicting presumptions” [while recognizing] “purposive presumptions have ‘weight’” (p.177). The act of balancing the weights of various presumptions is a normative practice in which judges must “rank” values and principles “according to their relative social importance” (p.178). Just because a value has a lighter weight does not mean it is eliminated from the legal system, but only that “the system limits its application or the scope of protection it is afforded” (p.178). Moreover, balancing may be principled (establishing a principle for future cases) or ad hoc (establishing no general principle) (p.179). To make matters even more complex, Barak identifies two main balancing formulas, horizontal and [*718] vertical: “Horizontal balancing occurs between values or principles of equal status. . . Vertical balancing formulas set the conditions under which certain values or principles prevail over others” (p.180).

The levels of abstraction in the law and in analyzing a constitution are so numerous (and the discretion of a judge so great) in Barak’s theory of interpretation, that it is quite clear, if applied to the American context, the constitutionality of banning gay marriage might or might not be constitutional. However, through comparison among legal systems, employing Barak’s purposive legal theory, could one witness the possible ranges of permissibility for gay marriage. Nations will differ in the range of possible legal responses to the question of whether banning gay marriage is unconstitutional, as will responses differ among judges in any given nation. This book opens the door to such analysis, and for this reason, among others, it is an important scholarly accomplishment.

In Chapter Eight, Barak continues his explanation of how judges should interpret legal texts. After determining subjective and objective purposes for a legal text, Barak writes, “Judges must formulate the ultimate purpose of the text. They use that purpose to pinpoint the legal meaning of the text along the range of its semantic meanings . . . [This stage] tries to synthesize and integrate subjective and objective purpose” (p.182). He notes, “Usually, all the information about purpose points in the same direction, because the presumptions of subjective and objective purpose are identical in their content. Sometimes, however, there is a conflict” (pp.182-183). Barak urges judges to do first whatever they can to avoid conflict and instead seek synthesis and integration. When this does not work and there is still conflict, the type of text should determine how the various factors are weighted. Barak’s theory of purposive interpretation distinguishes among texts based on six factors: legal character of the text (wills, contracts, statutes, and constitutions); age of the text; “scope of issues arranged in the text and the text’s aspirations for completeness;” character of the regime and society that created the text (particularly for statutes and constitutions); design of the text (based on rules, principles, or standards); and content of the issue being regulated (e.g. civil vs. criminal laws). As noted above,

Purposive interpretation applies to the interpretation of all legal texts, but it treats each type of text specially, according to its nature, allowing texts to develop and express themselves. It is the concept of purpose that facilitates this development and expression. . . Subjective purpose and objective purpose appear before the judge as presumptions, the balance between which gives rise to ultimate purpose (p.185).

Age of Text, Regime Change, and Specificity of Language

Age of the text is crucial to the interpretive process. Barak writes, “Judges may interpret a newly created legal text according to the intent of its author but, as time passes, interpret the [*719] same text according to the intention of the system” (p.191). Changes in society warrant changes in interpretation of legal texts, within the limits of the language of those texts (p.192). However, Barak emphasizes that judges should give more weight to subjective purposes in interpreting specific, narrow texts and should give more weight to objective purposes in more general texts (p.194). Regime change is also central to the interpretive process. Barak writes, “Changes in . . . fundamental assumptions affect the way we understand a text. Often, these changes occur over time, and the very passage of time affects the way we understand the text. Even when these changes occur quickly, however, they still affect the interpretation of the text” (p.196). The primary example of this sort of quick change is a nation transitioning to democracy (pp.196-197). Finally, the specificity of language informs whether judges should give more weight to subjective or objective purpose. Barak emphasizes that texts that set specific rules should be interpreted with a heavier weight toward subjective purpose, and those grounded in broader principles should be interpreted with a heavier weight toward objective purpose. Barak writes, “A text formulating a rule makes a precise decision about what is permitted and what is forbidden. In understanding the objective at the core of the prohibition and permission, judges should ascribe significant weight to the intent of the author at the time the text was written. . . In contrast, a text formulating a principle or standard sets and ideal to be attained. The ideal operates within a legal system, is shaped by it, and influences it” (p.198).

The purposive interpreter seeks to overcome conflicts between objective and subjective purpose. Barak offers a set of rules as to when objective and subjective purpose should be given stronger presumptions. This list of rules suggests that objective purpose should be more heavily weighted than subjective purpose, if significant time has elapsed since the text was created, if the structure of the regime and values of society have undergone significant change, if the text is based on principles and not rules, or if the context of the text justifies according significant weight to objective purpose (like a statute addressing human rights). Subjective purpose would be more heavily weighted in contrasting situations (e.g. when interpreting newer texts). In the case of constitutional interpretations, objective purpose is given “significant weight” except in “a young constitutional text” (p.204).

Judicial Discretion, Social Meaning and Purposive Interpretation: The Limitations of Conventional Hermeneutics

Chapter Nine explores judicial discretion. Given the fact that objective purpose usually trumps subjective purpose, there is wide discretion for judges. Barak writes, “Language sets the limits of interpretation. Purpose determines the choice of legal meanings, within the boundaries of language. Discretion operates when the purpose of the text does not point to a single, unique legal meaning” (p.207). Barak argues that any system of interpretation must [*720] rely on discretion to some degree; purposive interpretation simply acknowledges that fact openly (p.207). In so doing, Barak disagrees with Ronald Dworkin’s view that judicial discretion does not exist and that it is possible to determine a single legal solution to any case. Barak argues that “reasonableness does not provide a single, legal solution to every case.” Instead, two judges could reach two different but both appropriate results. This fact does not “reflect judicial imperialism but rather uncertainty in law. Law is not mathematics. It is a normative framework” (pp.209-210). Barak is very forthright in his discussion of judicial discretion. He argues that there are procedural and substantive limits to discretion (p.210). Moreover, “[Judges] exercise choice, but they remain within the confines of a society, a legal system, and a judicial tradition” (p.212). The importance of judicial discretion to Barak’s theory of interpretation is evident when Barak discusses how discretion would apply at all the stages of the interpretive process (pp.214-217).

In Chapter Ten, “The Theoretical Basis for Purposive Interpretation,” Barak explains why purposive interpretation “guarantees the achievement of the purpose of law” (p.220). He writes, “Law as a social device has a purpose,” and “every individual text has a purpose within the system” (p.223). For Barak, interpretation gives law its social meaning through the process of determining legal purpose.

Like a hermeneutic approach, the judge “tries to combine his or her modern understanding with the understanding at the core of the text. Moreover, one key aspect of hermeneutics that is highly applicable to purposive interpretation is that it “teaches us to take a holistic approach to the text, treating a will, contract, statute, or constitution as a whole” (p.231). However, Barak finds hermeneutics to be limited, in that “it does not help the interpreter assume a stance with respect to the relationship between authorial intent and the intention of the system” (p.232). Although semantics and hermeneutics are useful in discussing legal interpretation, Barak finds they “are not what determines which system of interpretation we choose. Constitutional law is the locus for this decision” (p.234).

Throughout the book, the most important test case for the validity of Barak’s theory of purposive interpretation is constitutional law. Barak concentrates on “the various constitutional considerations that should be taken into account in order to show that, taken together, those considerations point toward purposive interpretation as the most proper system of interpretation”(p.235). In doing so, Barak makes the following points: 1) Purposive interpretation is only appropriate for democratic regimes; 2) The role of the judge is “to help bridge the gap between law and society’s changing needs” and to “preserve democracy and defend the constitution,” both of which purposive interpretation best achieves; 3) “In engaging in [constitutional purposive] interpretation, a judge should express the basic constitutional character of the [*721] democratic regime;” 4) Under separation of powers, judges can not interpret statutes to achieve their own political interests, but instead should “give weight to a statue’s subjective purpose as an expression of legislative supremacy,” and objective purpose should also be considered in order to “actualize the values and principles” at the core of the constitution and democracy itself; 5) We should view the legislature as making a good faith effort to give proper social purposes to laws and not simply voting in terms of personal self-interest; and 6) Because a formal concept of the rule of law in the sense of “the principle of public order,” applies to any system of interpretation, it does not help us analyze purposive interpretation in and of itself. However, Barak finds that the jurisprudential aspect of the rule of law or “the minimum requirements that a legal system needs in order to exist,” are important to understanding purposive interpretation. In words strikingly similar to those in PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992) joint opinion by Justices O’Connor, Kennedy, and Souter, Barak highlights three key criteria, “the requirement of certainty of the law, stability of the law, and security in interpersonal relationships,” as being central to the jurisprudential aspect of rule of law, and argues that purposive interpretation best realizes these three requirements (pp.235-244).

Finally, Barak highlights the concept of a substantive rule of law, meaning that “rule of law requires both majority rule (legislative supremacy) and human rights (guaranteeing the system’s fundamental values).” Purposive interpretation balances subjective purpose (legislative intent) with objective purpose (human rights/fundamental values considerations) (p.246).

Institutional Concerns

Institutional concerns frequent Barak’s theory of purposive interpretation. He writes, “Public confidence in the judiciary is an important constitutional consideration for any system of interpretation. Such confidence is crucial to any democracy,” as is an “independent, objective judiciary” (p.252). Moreover, he writes, “Public confidence in the judiciary will increase . . . if judges achieve the purpose at the core of the statute” (p.253). In contrast, judges who use their own personal preferences to interpret law or who “freeze legal development, [allowing] the past to dominate the present,” will damage public confidence in the judiciary (pp.253-254). In these words we see the importance of a theory of judicial decision-making that views a Constitution as a living document. In these words, we also see that an important aspect of purposive interpretation, and one that is central to respect for law and courts, is that change in law and constitutional interpretation, respecting changes in the world outside the Court, are basic to political development in democracies. Moreover, legal norms are part of “the existing legal framework, becoming part of the systemic and constitutional structure” (p.254), and fundamental constitutional values are central to such a framework. Barak writes, “The interpreter of any [*722] legal text must integrate it into the constitutional structure of the democracy and the system’s fundamental values” (p.256). Purposive interpretation obviously fits into this goal with the use of objective purpose. Moreover, these fundamental values are not just about constitutions and statutes but also apply to the interpretation of private law texts like contracts and wills (pp.256-258).

Comparing Purposive Interpretation and Contemporary Constitutional Theories:

Originalism and the New Textualism, Pragmatism, Moral Theory, and Free Interpretation

Chapter Eleven provides a critique of constitutional theories built on subjective models of intentionalism, because they are either limited to the language of the statute or they focus only on the subjective intent of the author (that is, the legislature, framers, or the hypothetical intent of the words of the document). He finds three major problems with intentionalist theories. 1) Most subjective systems are not really ‘subjective’ because they do not investigate the actual will of the author,” often focusing on the reasonable author instead. In contrast, purposive interpretation allows the judge room to examine both the actual intent of the author and the hypothetical intent (pp.265-266). 2). Intentionalism “does not provide a solution to all the interpretive problems that the judge faces. It does not meet the condition of efficacy” (p.266). There will be situations in which subjective intent is insufficient to reach the legal meaning of the text. Barak emphasizes that it may be impossible to determine the actual intent, or that intent may be irrelevant to “solving the interpretive problem before the judge” (pp.266-267). Finally, 3) In contrast to theories built on subjective interpretation, purposive interpretation may consider both subjective and objective purpose; it is able to deal with interpretive problems even when true intent is elusive. Thus, for Barak, intentionalism “fails to view the text being interpreted as a creature of a changing environment. It is insensitive to the existence of a legal system and democratic regime in which framework the text operates.” Again, purposive interpretation is designed to view the text as a whole, in context, and so avoids this problem, which I will label “environmental insensitivity” (p.267).

Under these general concerns, both the “old textualism” that seeks to discover the author’s intent and the “new textualism” that seeks to understand the text “the way a reasonable reader would have read it when it was enacted” (like that of Justice Scalia), are wanting in similar ways, with the new textualism having additional drawbacks (p.277). Most importantly to Barak, under “new textualism legislative history and fundamental values are excluded under all circumstances (p.279). Barak writes, “New textualism correctly points out that the legislature enacted the statute and not the intent. However, that does not mean that we cannot take the intent into consideration, in order to understand the statute. We might as well say that the legislature enacted the statute and not the dictionary, and thus we cannot take the dictionary into consideration in understanding the statute” (p.280). Moreover, Barak believes that new [*723] textualism’s claim, that taking intent and fundamental values into account harms democracy, is flawed. He writes, “New textualism harms formal democracy by treating a piece of legislation – which expresses the decision of the majority – as a decision made with no goal” (p.281). “New textualism harms substantive democracy [by severing] the statute from society’s fundamental values in general, and from human rights in particular” (p.282). Also, Barak argues that new textualism claims to understand texts according to the reading that a reasonable person would give them. However, this is actually giving the judge much more discretion than under a system like purposive interpretation because the judge “determines that the meaning of a text is ‘plain’ by sense, outside any normative framework” (p.282). Also, law under the new textualism is overly static and formalistic. It would not seem to matter if “instead of judges, linguists or reasonable people off the street engaged in statutory interpretation” (p.283). Most importantly, Barak writes, “Values and principles framed the text’s creation, and they frame its interpretation. Why not consciously recognize them as an indispensable device for understanding the text?”(p.284). The new textualism advocates originalism in interpreting the constitution; however, Barak finds that there is no basis for this approach in constitutional theory (pp.284-285).

One can gain an insight into Barak’s theory of interpretation by comparing it with other constitutional theories. One can see the similarities and differences between purposive interpretation and pragmatism “at those junctions at which judges exercise discretion (pp.213-214). Barak writes

[Pragmatism] generally [deals] with interpreting public law texts (statutes, constitutions), and [resists] formalism in favor of substance. Pragmatists consider both text and context. They read the text as a whole; they study the intent of the author, the way understanding of the text has developed, and the system’s fundamental values. . . Pragmatism leads to an important result, a result that can be reached in other systems of interpretation, including purposive interpretation: the dynamic interpretation of statutes and constitutions. The legislator or framer does not control statutory or constitutional interpretation but the interpreter also considers other sources of information about the text (p.287).

A text therefore has a dynamic rather than a static meaning. Dynamic interpretation is not unique to pragmatism: purposive interpretation is also based upon it (p.288). Here we see the importance of contextual factors and the notion of a living constitution in both pragmatism and purposive interpretation.

Barak emphasizes that the two approaches also “diverge substantially. Purposive interpretation asks, first and foremost: What is the goal of interpretation? Its answer is institutional that the goal of interpretation is to achieve the objective of the text. . . In pragmatic interpretation, however, the guidance of purposive interpretation, directing the interpreter to search for and achieve the goal of the text, does not exist—or exists to a diminished extent” (p.288). Barak’s criticism of pragmatism is premised on the view that one “cannot [*724] know what the best (pragmatic) solution is without first establishing the objective that interpretation is to achieve” (p.289). Thus, under purposive discrimination, a judge must make clear the basic principles upon which she is making a decision, and she does so by searching for the purpose of the text. This is a quite different view from that of scholars, such as Cass Sunstein and other pragmatists, who argue for judicial minimalism, usually on grounds.

Barak also finds Ronald Dworkin’s system of interpretation wanting, because it is based on the idea of integrity, so that judges “give each piece of legislation the meaning that shows its political history in the best light” (pp.290-291). Barak dislikes the fact that under Dworkin’s constitutional theory, “The interpreter must select, from among the potential semantic meanings, the meaning that advances the principles and policies that give the statute its best political justification” (p.292). Although Dworkin’s model is based on dynamic interpretation, Barak disagrees with “Dworkin’s point of departure [as] the present. The goal of interpretation is to give a statute enacted in the past the best present political justification in order to regulate social life in the future” (p.293). Barak does not like the fact that Dworkin privileges justice, fairness, and procedural due process over the totality of society’s fundamental democratic values.

Barak also disagrees with the fact that Dworkin explicitly recognizes a place for judicial discretion that is less bounded than Barak desires. Finally, Barak writes that Dworkin’s theory gives too central a place to the abstract intent of the author. Barak writes, “When the type of text warrants it, the purposive interpreter gives abstract intent very little weight, even when the result fails to cast the political history of the text in its most favorable light” (p.297). Barak admits that both Dworkin’s theory and purposive interpretation seek to actualize the fundamental values of the political system by adopting a moral-political approach (p.297). However, Barak writes: “[Purposive interpretation] treats the fundamental values of the system as a purpose that coexists with – and sometimes supplants – subjective purpose. Dworkin, on the other hand, views the system’s fundamental values as an extension of the abstract intent of the legislature. Such intent develops according to the principles of integrity” (p.297).

Barak is not a legal realist. He rejects what he calls theories of free interpretation, which are theories of legal decision making that do not view interpretive rules as binding on judges. He writes, “According to free interpretation, there are no interpretive rules to guide judges. . . In essence, the free approach is not interpretive at all—it negates the guiding power of interpretive rules” (p.297). Barak writes, “Social reality and social forces drive law and determine the aims of legal discipline. To this extent, we can accept some precepts of the free approach” (p.299).

However, he disagrees with the free interpretation approach because it goes too far: “Law inevitably contains [*725] uncertainty, but uncertainty does not surround every legal text, in every circumstance. Most legal texts, in most circumstances . . . have a single, unique meaning. Interpretation with no semantic boundaries is not interpretation” (pp.299-300). Thus, legal interpretation, while allowing for judicial discretion, is more bounded than in free interpretation theory. It is clear that Barak seeks a more moderate and complex constitutional theory than those advocated by new textualists, pragmatists, moral theorists, and free interpretation theorists.

In the conclusion to Part II, Barak identifies and rebuts three main criticisms of purposive interpretation “as an independent system” of interpretation. Barak writes:

I identify three primary criticisms: First, purposive interpretation tries to achieve the impossible by formulating a theory of interpretation that applies to all legal texts; second, purposive interpretation confers overly broad interpretive discretion to the interpreting judge; third, purposive interpretation is too complicated (p.301).

To the critique that as a uniform system of interpretation, his purposive interpretation is overly ambitious because he seeks it to be applied to all legal texts, Barak replies:

Legal texts contain more similarities than differences, and that purposive interpretation expresses these similarities by giving every legal text a meaning, within the limits of language, that realizes the (subjective and objective) purposive of the text. That element is common to all legal texts and supersedes what is different about them. Furthermore, purposive interpretation does not ignore or suppress the elements that divide texts. To the contrary: It takes the differences into consideration and gives them full expression by tailoring the internal balance between subjective and objective purpose accordingly. It gives each text full range to express its individuality (p.302).

One can see the importance of the comparison in textual analysis when Barak emphasizes that his theory of purposive interpretation across a wide range of texts “facilitates cross-fertilization of interpretive viewpoints. . . By taking all texts into account comprehensively, we strengthen the different components of purposive interpretation and make progress toward developing a unitary theory that recognizes the individuality of its components” (p.303).

In response to the criticism that purposive interpretation dictates overly broad judicial discretion based on too few rules and principles, Barak writes, “It is true that purposive interpretation is based on a component of judicial discretion, but that is necessarily true for any system of interpretation that aspires to provide a solution to every interpretive problem” (p.303). He also believes that not only is the degree of judicial discretion no greater than in other systems of interpretation, but purposive interpretation actually restricts discretion more than most other interpretive systems. Barak makes a valid point when he writes:

Unlike many systems of interpretation, purposive interpretation adopts a normative stance on the relationship [*726] between different presumptions (subjective and objective). Whereas other systems leave some decisions buried in the intuition of the interpreter, purposive interpretation pushes those issues to the surface and forces the interpreter to adopt and normative stance, dictated by rules and principles, with respect to those issues (p.303).

These words resonate with Barak’s critique of pragmatism, moral theory, and free expression approaches to legal interpretation. (See my critique of pragmatism in Hirsch 2005) Similarly, Barak makes a valid point when he argues that most constitutional theorists and judges rely on discretion; most of them just will not admit it. Moreover, by talking about discretion, purposive interpretation actually puts more limits on it than in many other approaches to legal interpretation (p.303). I believe that if scholars would seek to apply the theory of purposive interpretation to the process of textual analysis, one could better test the validity of this criticism.

There is a transparency of judicial thinking in purposive interpretation because it forces a jurist or scholar to limit the “gap between rhetoric and practice” and “tell the truth” (p.303). Barak writes:

It acknowledges the need to give expression to the real intent of the author, but notes when there is no credible information about the intent, or such intent is not relevant to resolving the interpretive problem, then the interpreter abandons legislative intent in favor of the fundamental values of the system. It acknowledges that the ultimate purpose of a text is as legal construction based on the balance between different purposes. It acknowledges the existence of legal discretion, limited judicial subjectivity, and judicial creativity. It lays the cards on the table, demanding complete transparency of the judicial work of interpretation. . . Purposive interpretation achieves the goal of law; it realizes the role of judge in a democracy; its dynamic approach allows the judge to bridge the gap between law and society; its constitutional approach gives full expression to formal and substantive democracy.

In these words we see that Barak’s purposive interpretation is more like a constitutional law approach to wills, contracts, statutes, and constitutions. We also see the importance to Barak of linking law and courts to the social, political, and economic reality outside the Court, and for judges and legal theorists to support more transparency in judicial decision making. I support these efforts because they link legal (constitutional theory) to a major concern of political scientists: explaining judicial decision making. For Barak, constitutional theory should not be viewed as primarily a legalist argument in support of specific constitutional objectives and ends in normative or policy terms.

To the criticism that purposive interpretation is too complicated, that it has too many rules and principles to burden the interpreter, Barak responds that familiarity with the process will reduce such fears; judges will be able immediately to reach the ultimate purpose whether they start from a consideration of subjective or objective purpose; “only in a minority of cases will the interpreter need to exhaust every avenue of purposive interpretation. In [*727] these few instances, there are no easy solutions, and the interpreter will have to go through the entire interpretive process. There is no reason to assume, however, that that process is longer and more complicated in purposive interpretation than in other systems of interpretation” (p.304).

Barak’s response to this last criticism is disingenuous because interpretive theories that focus primarily on objective or subjective standards are less complicated due to having more limited standards for evaluating a text than under purposive interpretation. In part for that reason, such theories have more built-in policy and normative premises and pre-ordained outcomes from their application to texts. Barak does require a look at authorial intent, age of text, and how the balance of objective and subjective principles leads a jurist to determine the amount of judicial discretion that is to be permitted. With regard to all texts, and most pointedly in landmark Supreme Court Cases, fundamental values and the world outside the legal institution are crucial. In such cases the paradigmatic implications for the development of doctrine and court power are significant. In such cases the interpretive process is more complicated, judicial discretion is at it highest, and more of the factors defined by Barak in purposive interpretation come into play. Also, Barak’s call for transparency in judicial decision making as to a court’s consideration of the balance of the objective and subjective to find purpose, allows for greater scholarly analysis of court actions. In so doing, “empirical studies” of legal institutions’ decision making, applying Barak’s theory of purposive interpretation, would reduce fears as to whether it is too complicated and whether judges actually engage in too much discretion.

Purposive Theory in Action

In Part III: Interpretation in Law, we can witness the central elements of Barak’s purposive theory of interpretation at work. In so doing, these pages increase the reader’s ability to assess critically how the core elements of the theory intersect. In this regard, I will limit my remarks to Chapter 14 (“Statutory Interpretation”) and Chapter 15 (“Constitutional Interpretation”), rather than the application of the theory to wills and contracts.

One can see the complexity, judicial discretion, and concern for social needs that is required by judges who engage in purposive interpretation under Barak’s analysis of statutory interpretation. Barak writes, “Judges should . . . give statutory provisions a meaning that bridges the inevitable gap between law and society’s needs,” “giving expression to legislative supremacy and to the supremacy of constitutional values” (p.339). With regard to finding ultimate statutory purpose, Barak writes, “The legislature passes legislation in order to achieve a certain purpose. Judges should therefore use the subjective purpose as a criterion in interpreting it. . . A statute is not a one-time creation of a transient legislature acting within the confines of a randomly assembled society. . . The basic values of the legal system are more than just a background for a legislative act; they are also the purpose that the legislation was designed to achieve” (p.339). [*728] In statutory interpretation, subjective purpose are the actual “goals, social changes, and aims to which the members of the legislative body have agreed. . . The language of the statute is a primary source for understanding its subjective purpose” (p.342). Legislative history should also be used to determine the context of subjective purpose; however, Barak writes, “[Judges] should remember that it is the statute that underwent the legislative process, not its history. Legislative history is not part of the statute, but rather a source of information about the statutes subjective purpose” (p.350).

We see the theory of purposive interpretation, and its complexity, when Barak emphasizes that an interpreter must be aware that there are many levels of abstraction at work in any process of dynamic interpretation (p.351). Sources for learning about objective purpose include the statute and external sources such as other statutes, values and principles of the legal system in general, the legal situation surrounding the statute’s enactment, and comparative law (p.352). Barak lists presumptions of purpose that judges should use in interpreting statutes: 1) “a statute is not the one-act of a transient legislature operating in a legislative vacuum. The statutes taken together create the legal system’s legislative project”; 2) “Legislation takes place against the background of fundamental jurisprudential viewpoints, legal concepts, and general laws” (p.354); and 3) While harmony among legislation should be a goal, [it] is “a relative concept. It is an aspiration, a rebuttable presumption.” When legislative disharmony occurs, “[t]he judge is responsible for maintaining normative harmony” even though the task is viewed by some as “Herculean” (pp.353-355).

The presumptions of purpose found within sources external to the statute that a judge must consider when interpreting the purpose of a statute include: 1) other statutes within a system of statutes; 2) legislative history, in order to understand “the social background or the circumstances that made the legislation necessary;” 3) the “socio-historical background of a statute,” which helps shapes its purpose; 4) the framework of general statutory, case law, and customary laws that shape its cultivation and development, since all legislation is a process of evolution not revolution; 5) the fundamental values of the legal system, such as core documents, presence of democratic regime, the status of the individual as a free person, the social consensus, and the case law of courts, which are in a constant state of flux; 6) comparative law, which should be used cautiously; 7) the social goals of a democratic regime (separation of powers, theoretical principle of rule of law including substantive aspects, and human rights); 8) proper modes of ordinary behavior; 9) human rights are protected; and 10) (the presumption that) legislation does not apply retroactively (pp.355-363).

Barak concludes the chapter with notes on how justices ought to weigh different presumptions of purpose in interpreting statutes when these presumptions conflict. When objective purposes conflict, Barak writes, [*729]

Judges resolve the contradiction by assigning weight to the various presumptions and conducting a principled balance (horizontal and vertical) between them. The weight of the presumptions depends on the relative importance of the values and principles for which they stand. The balance generally yields a clear and unequivocal resolution. In cases were the scales are even, however, judges should use subjective purpose to help resolve the contradiction (p.366).

Again, the quality of judicial decisions, and the call for transparency in the form of clearly reasoned decisions, will either reduce discretion, or at a minimum, reduce its effects, because transparency allows political bodies to use its resources to respond to judicial decisions.

Chapter 15, “Constitutional Interpretation,” opens Barak’s purposive interpretation to much criticism, in part because he is quite open about the high level of discretion in which constitutional justices engage, especially when deciding landmark cases. Barak writes, “A constitution occupies a special status in the legal system,” and its interpretation “warrant[s] a special interpretive approach to its interpretation” (p.370). Barak lists some of these unique characteristics: 1) “A constitution sits at the top of the normative pyramid;” 2) “It shapes the character of society and its aspirations throughout history;” 3) It establishes a nation’s basic political points of view; 4) “It lays the foundation for social values, setting goals, obligations, and trends;” 5) “It is designed to guide human behavior over an extended period of time, establishing the framework for enacting legislation and managing the national government;” 6) “It reflects the events of the past, lays a foundation for the present, and shapes the future;” 7) “It is at once philosophy, politics, society, and law; and 8) “The unique characteristics of a constitution warrant a special interpretive approach to its interpretation,” because “it is a constitution we are expounding” (p.370).

Although constitutional interpretation is unique, and quite different from the interpretation of wills, contracts, and statutes, it is not so unique as to require a conceptually different theory of interpretation from other legal documents. At the core of a constitution’s uniqueness is that, unlike a statute, it is drafted with an eye to the future; it is a continuing framework for the legitimate exercise of governmental power. With this in mind, Barak argues that “[w]ithout negating the applicability of subjective purpose, purposive interpretation favors objective purpose in constitutional interpretation” (p.371). The fact that objective purpose is more heavily weighted than is subjective purpose in constitutional interpretation is an important part of the theory, because the nature of the balance between objective and subjective purpose in constitutions, as well as in wills, contracts, and statutes, seems to be an a priori decision. It is not derived from the historical, cultural, political, and legal norms developed in a specific nation.

An argument for favoring objective interpretation in the interpretation of constitutions is based on Barak’s view that constitutions “contain more [*730] ‘opaque’ expressions than other legal texts” (p.372). They contain many open-ended or vague phrases that could be interpreted in many ways because: 1) “A constitutional text expresses national agreement. In order to reach agreement, nations generally must confine themselves to opaque and open-ended terms;” 2) “A constitutional text seeks to establish the nation’s fundamental values, covenants, and social viewpoints. We tend to express those concepts in value-laden language, conveying a message that is rarely clear or unequivocal;” 3) “A constitutional text is designed to regulated human behavior for future generations,” and so the language must be flexible; and 4) The importance of implicit language is far greater in constitutions than in other legal texts (i.e., we infer separation of powers and implied fundamental rights) (pp.372-374). In making the argument for the importance of objective over subjective interpretation of constitutions, Barak writes, “The fact that we may learn the purpose of a constitution from sources external to it does not mean that we can give a constitution a meaning that is inconsistent with its explicit and implicit language” (p.375).

Barak is quite clear about the secondary nature of subjective purpose in constitutional interpretation and that any intent of the founders not evident in the words of the constitution should not be a basis for its interpretation. Barak writes, “The subjective purpose of a constitution is the goals, interests, values, aims, policies, and function that the founders of the constitution sought to actualize. Despite literature arguing the contrary, I believe that a constitution has a subjective purpose that judges can identify” (p.375). However, the subjective purpose must be determined through an analysis of the words and structure of the constitution itself. He writes, “We are not interested in how the authors of the constitution envisioned that a particular right would apply to a given set of facts (concrete intention). . . Judges should take subjective purpose into account only if it can be achieved through the language of the constitution. If we learn from external sources that the founders intended something that cannot be achieved through the language of the constitution, we must conclude that while they wanted to achieve a particular purpose, they failed to agree on a text that would make it possible” (pp.375-376). In determining the abstract intent of any words of the constitution, judges must analyze the entire text, as well as its pre- and post- enactment developments.

Consideration of objective purpose is far more important in constitutional interpretation. Barak writes, “The objective purpose of a constitution is the interests, goals, values, aims, policies, and function that the constitutional text is designed to actualize in a democracy” (p.377). Barak lists four levels of abstraction (from lowest to highest) at which we can view objective purpose: 1) “Imaginative reconstruction,” which is “the purpose that the authors of the constitution would have envisioned, had they considered the matter;” 2) the “purpose reasonable authors of the constitution would have envisioned;” 3) the “purpose at the core of a constitutional arrangement of the type and nature in question, in other words, [*731] the purpose of the particular constitutional right or fundamental political structure;” and 4) at the highest level of abstraction are “[t]he fundamental values of the system that form the normative umbrella spread over all legal texts in the system, including the constitutional text” (p.377).

It is very significant that Barak separates the sources of objective purpose into internal and external sources. The internal sources are “the structure of the constitution and relationship between its different parts [which] provide information about the function, values, and principles that it is (objectively) designed to realize” (pp.377-378), studied with a concern for “constitutional unity,” but not at the expense of imposing one or another moral or philosophical world view (p.378). He writes, “We do not just seek the semantic meaning of the constitutional provisions and the intratextualism of the Constitution. We are interested in their legal meaning as a reflection of constitutional purpose” (p.379). Thus considering internal sources of objective purpose means interpreting the constitution as a whole, looking at “the structure of the constitution and the relationship between its different parts” (p.377). Judges should seek constitutional unity, but should not “artificially impose unity where none exists” (p.378).

The external sources of objective purpose are far more important in Barak’s purposive interpretive theory, as applied to constitutional texts. These include: 1) Other constitutional provisions, which in the American context would mean later amendments to the constitution that may affect our understanding of previous provisions (p.379); 2) Post-Enactment History: “Understanding a constitution requires understanding the historical continuity of which it is a part, or the break in continuity and the beginning of something new” (p.379); 3) Judicial Constitutional Case Law: because the modern interpreter “is just one link in a common law chain that directly and indirectly affects his or her work,” a judge must consider precedent, the maintenance of constitutional unity, with due respect for the level of abstraction through which a constitutional provision has been interpreted in the past; and 4) Fundamental Values “like freedom, human dignity, privacy, and equality saturate constitutional texts. . . The interpreter learns them from fundamental documents like the declaration of independence, from case law, and from the totality of the national experience” (p.381). Barak writes that fundamental values should be interpreted according to contemporary needs, “whether or not they receive explicit mention in the constitution. He continues, “The question is not how the founders . . . understood liberty, but rather what it means in our modern understanding” (p.381). Barak emphasizes that interpreters should only use values they believe to be lasting rather than passing trends, and fundamental values should only be taken into account if the text of the constitution allows for it (pp.381-382). However, given his description of how to read a text, interpreters have wide discretion in such analyses. Finally, Barak discusses a fifth source, Comparative Law: “Comparative [*732] constitutional law helps widen horizons and share information across systems” (p.382).

Scholars differ widely over the role that each of these external sources should play in constitutional interpretation. One need merely note the cottage industry of articles over the role non-American legal sources should play in contemporary constitutional interpretation. So a critique of purposive interpretation could be based on differences with Barak over the place of different internal and external sources of objective purpose in constitutional decision making, as well as the question of whether he places too much reliance on the place of objective purpose in the interpretations of constitutions.

However, it is more useful to ask whether a unitary theory for the interpretation of all legal texts (wills, contracts, statute, and constitution) is a wise objective for scholars, and whether Barak’s purposive interpretation furthers this objective. With regard to the purposive interpretation of constitutions, Barak responds to this query: “Just because there are a number of ways we can interpret a constitutional text does not mean there are a number of ways we should interpret a constitutional text. We seek to develop a system that gives priority to one understanding over another—without claiming that one understanding is truer than another” (pp.384-385).

In this book, we see the judge of a constitutional court at work when he calls on judges to use all data available to them to determine purpose. Barak writes, “There are no phases of transition from one kind of datum to another, no a priori ranking of data. . . The purposive interpreter aspires to synthesis and coordination between the different levels of abstraction of subjective purpose by choosing the level of abstraction that accords with objective purpose,” and vice versa (p.385). When data on objective and subjective purpose conflict, objective purpose should be given decisive weight because “only then can the constitution fulfill its aim; only then can it guide human behavior over generations of social change” (p.385). Judges should not ignore subjective purpose, but neither is it decisive (pp.386-390). Barak deplores the fact that in the American system (unlike that of most other democracies), “judges and legal scholars engage in extensive discussions of the original intent of the founding fathers” (p.388). He writes, “American constitutional law is in crisis because of the American legal community’s failure to reach consensus over the relationship between the intent of the founders of the Constitution, the original understanding of the Constitution at the time of its founding, and the modern view of understanding the Constitution through its interpretation” (p.389). Purposive interpretation’s answer to this problem is to focus on objective purpose without completely excluding subjective purpose: “The ultimate constitutional purpose is modern, but its roots are in the past” (p.390).

Finally, Barak examines Justice Scalia’s claim that “if judges interpret the constitution according to modern worldviews, the constitution will reflect [*733] the perspectives of the majority, at the expense of the rights of the minority” (p.390). Barak’s response: “A modern perspective on human rights does not necessarily mean the perspective that the majority favors. . . [T]he purposive approach interprets the constitution according to basic, fundamental values that reflect modern society’s deep perspectives, not passing trends” (p.390). Moreover, “Judges should adopt a broad perspective on constitutional interpretation. Their interpretation should be generous, not legalistic or pedantic” (p.391). This means looking for ultimate purpose and unity throughout the legal system (p.392).

Conclusion

PURPOSIVE INTERPRETATION IN LAW offers an important look into the mind of one of the most important constitutional jurists in the world, the President of the Supreme Court of Israel. We get a rare glimpse into the theory behind his constitutional decision making. This opens the door for scholarship regarding the degree to which Barak engages in purposive interpretation when he makes constitutional choices.

This book also is a primer on the complexity of the process of the legal interpretation of a constitution and other legal texts. It shows us that at one level of abstraction, the nature of text makes a difference by bounding its interpreters. However, at a higher level of abstraction, such as a nation’s fundamental values, general statements as to the interpretation of all texts can be made.

The book has many positive qualities, as a first step toward a unified general theory of interpretation that can be applied across quite different legal texts: statutes, wills, contracts, and constitutions. Barak is especially clear as to the difference between interpreting constitutions as compared to other legal texts. He also is very clear about how texts differ with regard to the place of subjective and objective purpose in their interpretation. Moreover, the historical context and age of texts are important to the set of presumptions a judge may use when interpreting them. It is best to view this theory as a set of problematics for judges and scholars to follow.

However, Barak overstates the level of unity found in constitutional interpretation in the United States, as well as among world constitutional courts. Laurence Tribe’s decision not to complete his treatise on constitutional law is testament to the lack of unity among doctrinal areas and constitutional theories. If there is less unity in the interpretation of constitutions within and among nations, one can expect even more disunity in the interpretation among varying types of legal texts. However, this concern does not forbid scholars, for example, to compare the interpretation of wills within and among nations, to determine whether there are interesting differences. One does not have to prove the validity of the unity of the entire theory of purposive interpretation within and among all nations and legal texts to conclude that Barak’s theory of purposive interpretation in law is a major scholarly contribution. Moreover, this effort at comparison of interpretation among [*734] different texts will do much to reduce the insularity that is presently found in scholarship on wills, contracts, statutes, and constitutions. Barak forces scholars to consider the similarities in the interpretation, rather than assuming there are none.

Ironically, although Barak seeks to develop a general theory of interpretation, and he presents a framework for comparing the interpretation of texts within and among nations, he provides few specific comparisons of interpretive practices found among nations. Barak does not even choose to apply this theory to comparative constitutional interpretation between the United States and Israel. The potential for this theory to be used comparatively is great, a potentiality that is not realized in this book.

Barak offers a theory of interpretation through which the clash of subjective and objective intent helps judges make specific legal (constitutional) choices. However, having laid out large dichotomies for judicial concern, and having suggested internal (to courts and legal principle) and external factors that judges should and should not use in a democracy to determine specific cases, he does not offer answers to the tough questions about how to weigh internal and external factors in making constitutional decisions. Nonetheless, this theory will allow us to begin a comparative analysis of whether courts in different nations, when interpreting different legal texts, consider subjective and objective purposes or the consequences of these differences for the development of individual rights and constitutional principles which limit the abuse of government power.

With regard to constitutional theory, this book is terrific in demonstrating major pitfalls in originalist constitutional theories, while also demonstrating when authorial intent does have a place in constitutional interpretation. Barak is specifically astute in his criticism of the “new textual” form of originalism, as advocated by Justice Scalia. This book also brings to life the problems with pragmatism and moral theory as bases for judicial decision-making. More specifically, Barak does a good job defining the difference between authorial intent and the intention of the system, and he rejects authorial intent as the major source for decision making in constitutional interpretation. In so doing, he offers a cogent critique of hermeneutics, in contrast to constitutional theory, as a basis for a theory of legal interpretation. He writes, “[hermeneutics] does not help the interpreter assume a stance with respect to the relationship between authorial intent and the intention of the system” (p.232). When interpreting a literary text, for example, it is fine to come up with ten different interesting meanings and write about that, but with legal interpretation, judges must settle on one clear legal meaning—it would not be permissible for them to just list the possibilities!

Therefore, Barak cogently argues that we need a normative system (constitutional law and theory) to tell us how to weight different aspects, so that judges can decide upon a single legal meaning. I urge readers to consider the [*735] Barak book in light of Dennis J. Goldford’s THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM. Read together these books do a masterful job of exploring the relationship between hermeneutics, authorial intent, and originalism, analyses that demonstrate the limitations of contemporary originalism as an interpretive method and constitutional theory.

One also witnesses a careful analysis by Barak of why the limitations of hermeneutics are similar to those of pragmatism (as an interpretive theory). Pragmatism, like hermeneutics, provides the basic ideas about how to interpret semantically and what should be used in interpretation, but it does not tell us how we should weight these different aspects. For example, it tells us that we should look at both text and context, but not which of these should be weighted more heavily when they conflict. Pragmatism fails to delineate principles and standards of evaluation upon which the interpretation rests. He argues forcefully that the goal of interpretation is to achieve the purpose of the text, while under pragmatism, there is no clearly stated goal at all; judges are simply expected to do what they think is best. Moreover, for Barak, the lack of stated principles under pragmatism leaves too much to judicial discretion and reduces judicial accountability in a democracy.

Definitions are generally very clear. Barak makes the distinction between subjective and objective purpose especially clear—subjective purpose being anything related to the real intent/purpose of the actual author of a text, and objective purpose being things other than the actual intent of the author. Objective intent has a wide range, from the hypothetical intent of the author to the intent of the system/fundamental values.

Throughout the book, we see that in his weighting of different sorts of purpose, the subjective always loses out to objective purpose in interpretation of constitutions (unlike in the other three areas, where there are certain circumstances when either subjective or objective purpose may have decisive weight). Thus, it seems a little disingenuous to claim that subjective intent should be important to constitutional interpretation and that judges should spend time uncovering it, if it will never be decisive in constitutional interpretation. Moreover, subjective intent also seems less important in interpretation of statutes. Does this mean that interpretation of wills and contracts is so different from interpretation of constitutions and statutes that the generality of Barak’s theory of purposive interpretations of legal texts must be questioned? Given that objective purpose usually trumps subjective purpose, especially in constitutional and statutory interpretation, one can ask whether the clash of subjective and objective purposes should constitute a key principle of Barak’s general theory of interpretation?

Institutionally, Barak is well aware that judicial decision-making is usually more bounded than political decision-making. He recognizes that legal rules and approaches to interpretation place [*736] limitations on judges that are not placed on political leaders. He also introduces the reader to the idea that how a judge answers questions about the relationship between objective and subjective purpose limits the discretion of judges. He is aware that institutional norms and processes are different for judges and for other legal actors compared to political actors. However, there is no analysis of how institutional norms and processes inform the substantive choices that judges, compared to political actors, would make under his theory of purposive interpretation.

Barak’s constitutional theory, which involves a search for objective purpose, necessitates that the judiciary have independence from political actors and majoritarianism. Courts should not be perceived primarily as agents of the legislature or of the people, defined in simply majoritarian terms. The quest for objective purpose requires concern for fundamental rights and needs of the people, both of which should not be viewed as the product of electoral politics.

Moreover, seeking the objective intent of the system as a legal construction requires judges to look at principles and precedent in light of changing social needs of citizens. These relationships will make it possible for scholars applying Barak’s theory to compare how aspirational levels differ among nations and among the analysis of different texts: constitutions, statutes, contracts, and wills. Thus, Barak is forthright about the place of discretion in legal decision-making, while simultaneously making the case that there are limits on judicial discretion.

Barak discusses the relationship between internal and external factors in court decision making. The fact that judges can move between text and context is an important component of his theory of purposive interpretation. He gives much attention to the importance of social facts and circumstances in purposive interpretation. Barak spends some time discussing the “internal and external,” but when he does so, he emphasizes the search for evidence of purpose inside and outside a text (text and context). The analysis is too judge-centered; it is about urging judges to take into account both subjective and objective intent. It is not about how institutional factors within and without courts structure judicial decision-making.

Thus, we need more clarity as to precisely what role the social, political, and economic world outside a court plays when judges seek to apply precedent and principles when engaging in purposive interpretation. Barak defines “internal” sources of objective purpose narrowly as “the text in its entirety” when seeking to define objective purpose (p.157); external sources include nearby texts, such as other wills, contracts, and statutes; the normative layout in which a text operates; case law and precedent; the general social and historical background that created the text; jurisprudence and legal culture; the basic values of the system that fill the normative universe; and comparative law (pp.159-170). A more precise analysis and theory-building of the relationship of these [*737] external factors to court decision making is needed for the utility of the theory to be tested. (You may wish to see Kahn and Kersch 2006).

Barak is terrific in his analysis of the presence of explicit and implicit rights and polity principles in constitutional interpretation. However, it is not always clear what Barak is arguing in this regard. At one point he asserts that judges must reflect the values that have gone through the pressure cooker of social recognition (p.166); at other places he contends that the search for objective interests requires judges to consider far more than what the majority of people believes. One is not clear as to when social recognition trumps the search for objective purpose, and when it does not. Would a constitutional judge be able to find a right to same-sex marriage under a constitution, if such a right were not socially recognized by the nation politically? Would a judge’s purposive interpretation of objective purpose trump low levels of social recognition to such a right, and under what conditions in specific cases? Barak offers a provocative and original theory of legal interpretation; however, he is very unclear as to how it would play out on the most contentious constitutional questions of the day.

There also is a very useful theme in this book regarding the importance of a text’s age in purposive interpretation. Barak finds that time changes the nature and importance of objective purposes. The book brings to mind interesting questions about why patterns of path dependence may differ among texts within nations, as well as among different nations, but it fails to offer a cogent thesis about the relationship between age of text, judicial decision-making, and political development. However, this book, like all books, should not be expected to have all its themes fully developed. Finally, with regard to law, text, and time, one can ask whether Barak’s theory is too presentist. I say this because he argues that authorial intent declines in importance in the search for a text’s purpose with each passing decade of its existence. Does this mean that the distance from when a text was written, and as objective purpose increasingly trumps subjective purpose, the importance of path dependence in judicial decision making declines? Or can a scholar uncover cycles of path dependence in the judges’ findings of objective purposes in a text?

Aharon Barak has produced a provocative book, which asks us to view legal interpretation and decision making as a distinctive process. He asks us to view it as both bounded and discretionary; he asks us to view it as different from political decision making; he asks us to view it as different from pragmatism, moral theory, originalism, and hermeneutics; he asks us to engage in comparison of law and legal institutions, while searching for a commonality among texts, nations, and legal institutions; and he asks us to consider the role of courts and legal interpretation in democracies. Even though, this is not truly a general theory, because it pertains only to legal interpretation and institutions in democracies, Barak has written a masterful book that will further the quest for a general theory of legal [*738] interpretation. And for this both scholars and practitioners should be thankful.

Finally, scholars, jurists, and the informed public will gain a deeper understanding of Barak’s theory of purposive interpretation, especially with regard to the institutional concerns which face a justice making constitutional choices, by reading his recently published THE JUDGE IN A DEMOCRACY (2006).

REFERENCES:

Barak, Aharon, 2006. THE JUDGE IN A DEMOCRACY. Princeton, NJ: Princeton University Press.

Goldford, Dennis. 2005. The AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM. New York: Cambridge University Press.

Kahn, Ronald, and Ken I. Kersch. 2006. THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT. Lawrence, KS: University Press of Kansas.

Kahn, Ronald. 2006. “Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, But Not Roe.” In Ronald Kahn and Ken I. Kersch. 2006. THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT. Lawrence, KS: University Press of Kansas.

Kahn, Ronald. 2005. “Why Lawrence v. Texas (2003) Was Not Expected: A Critique of Pragmatic Legalist and Behavioral Explanations of Supreme Court Decision Making.” In H.N. Hirsch (ed). 2005. THE FUTURE OF GAY RIGHTS IN AMERICA. New York: Routledge.

Sunstein, Cass R. 1990. AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE. Cambridge: Harvard University Press.

CASE REFERENCES:

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 U.S. 833 (1992).

© Copyright 2006 by the author, Ronald Kahn.

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IS THERE A DUTY TO OBEY THE LAW?

by Christopher Heath Wellman and A. John Simmons. New York: Cambridge University Press, 2005. 214pp. Hardback. $50.00/£30.00. ISBN: 0521830974. Paper. $18.99/£12.99. ISBN: 0521537843.

Reviewed by Margaret S. Hrezo, Department of Political Science, Radford University. Email: Mhrezo [at] radford.edu.

pp.704-707

Written for Cambridge University Press’s FOR AND AGAINST Series, IS THERE A DUTY TO OBEY THE LAW? consists of two essays. The first, written by Christopher Heath Wellman of Washington University in St. Louis, argues for the existence of a moral duty to obey government. In contrast, A. John Simmons, of the University of Virginia, maintains in the second essay that there is no strong moral duty to obey the laws of any existing state. The book’s purpose is to examine what the editors call the “central question of political philosophy . . . . whether political states have the right to coerce their constituents and whether citizens have a moral duty to obey.” Both essays are well written, thoughtful, and thought provoking. The debate is informative. The topic is important, even if one disagrees that it is the central question of political philosophy. Political obligation is one of the thorniest areas in legal and political philosophy and the literature is immense. States increasingly have to justify the legitimacy of legal rules in an atmosphere pervaded by the beliefs that it does not matter whether individuals choose to obey and that there is no genuinely binding reason for an individual to obey when obedience does not serve his self-interest. Both authors have written extensively on the subject, and their expertise is widely acknowledged. Despite these strengths, however, the book ultimately does not help us think more clearly about the problem of political obligation.

The problem is not the exposition of their opposing arguments. In the first essay, Wellman maintains there is a moral duty to obey the state because states “provide vitally important benefits that could not be secured in their absence, and they supply these benefits without requiring their subjects to make unreasonable sacrifices” (p.5). To Wellman, there is no way that even an entire society of well-meaning moral people could live flourishing lives without the state. Without the state, human beings would be forced into Hobbes’ war of all against all. To remedy this situation Wellman relies on what he calls the natural moral duty of samaritanism—a duty that does not rely on any previous transaction or preexisting association between rescuer and rescuee. If a person is in danger and one can save him without unreasonable cost, then there is a moral duty to do so. Although Wellman begins from the position that obedience to the state is a form of nonconsensual coercion not dissimilar to slavery, he believes that each of us occupies the position of the individual in need of rescue. The state’s coercion of all those within its territorial borders is “the only way for it to rescue any of us from the perils of the state of nature” (p.19). Thus, we should obey it as long as the benefits of obedience [*705] outweigh its costs. Samaritanism, however, cannot justify every potential function that a state may be able to do well. He uses the analogy of someone appropriating another’s car to take a third person to the hospital to make this point. Although it may be permissible for A to take B’s car in order to save C’s life, it is not permissible for A to take B’s car in order to take C to the grocery. Wellman attempts by this caveat to provide a general moral justification for obedience to law that leaves room for citizens to disobey illegitimate states or the unjust laws of legitimate states.

Simmons, however, is not convinced by Wellman’s argument—or by any other argument for a moral duty to obey the state. Who says there is a moral duty to “discharge the internal duties imposed by law” (p.94)? Why does such a duty exist? Why should I as an individual feel such a duty? Obedience, Simmons argues, is a question of the source of the rule or command. “A moral duty to obey would be a duty to do as the law requires because it is required by a valid law . . ., a duty to obey the law as such, not to do as it requires just insofar as it happens to overlap with independent moral duties” (p.95). For Simmons, that means that only some natural duty justifies obedience to the law even in a just state. For this reason after briefly mentioning the Associative (the duty to obey results from our nonvoluntary occupation of certain social roles) and Transactional (the duty to obey results from “morally significant interactions”) theories of obedience, he concentrates on examining various Natural Duty theories of obedience (p.102).

Natural duty theories, Simmons argues, locate the duty to obey in the existence of a moral duty to either: (1) “advance some impartial moral good” or (2) treat all others as moral equals regardless of “roles, relationships, or transactions” (p.121). He begins by outlining the general premises and conclusions he believes are shared by any Natural Duty theory. Premise 1: Government is necessary for all human beings. Premise 2: All persons have a natural moral duty to do one or more of the following: (1) maximize goodness in the world; (2) perform necessary tasks and support others who perform them; (3) respect and defer to those occupying necessary positions of authority; (4) do justice; and (5) assist those in peril (p.123). The remainder of Simmons’ essay is his attempt to refute each of the elements of Premise 2.

Maximizing goodness, the first justification, he contends is in essence the consequentialist argument that we must avoid choices that will have bad consequences. This argument fails because governments need only general compliance with their demands, not the compliance of every citizen. Second, necessity also must fail as a justification for the duty to obey unless one can show why the necessary task is a moral duty. He finds equally inadequate justifications based on respect and deference. In Simmons’ view disobedience to rules we have not made or individually accepted does not show disrespect to others “in any very strong morally important sense” (p.146). Here he maintains that providing a justification for authority is not the same as establishing its moral legitimacy over [*706] individual citizens. Fourth, Simmons examines and finds wanting Rawls’ natural duty of justice (all must build and maintain just institutional arrangements) as a justification for the natural duty to obey the law. Rawls’ argument fails, Simmons says, because Rawls is not able to explain to us why even just domestic institutions should have “privileged moral authority over us” (p.163). If there is a natural duty of justice, why would it end at the borders of our own nation state? Finally, Simmons rejects the justification for obedience based on the duty to assist those in peril—the justification on which Wellman has based his argument in the first essay. Simmons suggests that Wellman inappropriately conflates two different sorts of moral duties: charity and rescue. Wellman, he argues, posits a duty to assist in emergencies. However, the actual content of the duty Wellman describes is much closer to charity, which Simmons defines as a fair share of a collective moral task. We must rescue only those whose peril we actually see. Charity is something owed to all whether we see them face-to-face or not. Further, because it is of no real consequence to the state whether any particular individual obeys, the emergency is not genuine. Once again, Simmons argues that samaritanism cannot address why a particular moral duty applies to me individually.

The problem with the book is that the argument between the two authors is more formal than real. Both authors begin from a very similar position. The reader never believes that there is a genuine debate going on here. Both agree that the individual exists prior to the state and is the highest good. The default position is no interference with individual choice and the most minimal state possible. There is no substantive common good. The reader forms the impression that both authors view the state as an alien interloper, a center of coercive power whose purpose is solely to prevent Hobbes’ summum malum (highest evil, death). Both appear to reject the west’s Judaeo-Christian heritage. In their eyes, no one can have a positive duty to benefit others unless she has voluntarily accepted that duty (p.20). For both authors the model of the individual is Michael Sandel’s unencumbered self. Human beings are rational pleasure seekers, Locke’s homo economicus (economic man). Complete freedom of choice, empty of all substantive content, is the ultimate good and if the citizen chooses to disobey the laws of her state, it makes no difference in the state’s ability to perform its functions. Politics is the regulation of procedures according to which individuals pursue their own private interests.

Those initial assumptions constrain the logical outcomes it is possible for Wellman and Simmons to reach. In fact, given their initial assumptions, it is almost impossible honestly and objectively to reach any conclusion other than that Simmons is the most correct. Given both authors’ underlying assumptions it appears that civil disobedience should be the norm in political life, not the exception. Wellman’s argument, as Simmons points out, is not really a moral one. Try as he might, and he tries mightily, Wellman cannot convince us that his justification [*707] of the state’s coercive power is anything but utilitarian in nature. The analogy between an individual obligation to assist someone in need and the citizen’s duty to obey the state because it protects all in need unfortunately does not work—at least not in a state inhabited by the kind of human beings he assumes in the sort of state he assumes, the liberal procedural (or neutral administrative) state. In the end, the justification is that obedience is necessary in order to solve the problem of coordination.

What the book really shows us is liberalism’s tendency to destroy politics when its premises are torn out of some moral framework and taken to their ultimate conclusion. Wellman and Simmons insist on framing a non-market issue in market terms. However, political duty is not a commodity suitable for market transactions. What if politics is more than the pursuit of power? What if it is the search for a pattern of order for society that is based on the society’s concrete conditions and is designed to make life meaningful for its citizens? Or what if Plato is right and politics is the place where power meets justice in an uneasy tension? Wouldn’t that change the poles of the debate substantially? Simmons analyzes Plato’s CRITO as part of his argument, suggesting that Socrates was wrong to listen to the Laws. Simmons would be correct if Socrates had begun with the same philosophical values and premises as does Simmons. But Socrates does not. Socrates would answer Simmons’ and Wellman’s contention that individual action has little or no effect on the government’s ability to complete its necessary tasks by arguing that the city is the citizen writ large. The quality of the state depends on the quality of its citizens. Empty freedom enslaves us to our passions and whims. And the most important question in political philosophy is not whether there is a moral duty to obey, but rather whether both individual citizens and the state as a whole seek diké, justice or righteousness. Thus, whether the individual citizen chooses to obey or disobey has a real and important impact on the quality and moral authority of the state.

© Copyright 2006 by the author, Margaret S. Hrezo.

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CAUSE LAWYERS AND SOCIAL MOVEMENTS

by Austin Sarat and Stuart A. Scheingold (eds). Stanford, California: Stanford University Press, 2006. 360pp. Cloth. $75.00. ISBN: 0-8047-5360-1. Paper. $29.95. ISBN: 0-8047-5361-X.

Reviewed by Mark Kessler, Department of Politics, Bates College. Email: mkessler [at] bates.edu.

pp.700-703

Stuart Scheingold’s (1974) seminal work on the politics of rights inspired a generation of scholars interested in the relationship between legal rights, lawyers’ practices, and social change. In recent years Scheingold’s collaboration with Austin Sarat on three co-edited volumes (Sarat and Scheingold 1998; 2001; 2005) and one co-authored book (Scheingold and Sarat 2004) refocused attention on the relationship between rights and change by examining the roles, motivations, professional dilemmas, and activities of public interest, or “cause” lawyers. In a worthy addition to this body of work, Sarat and Scheingold’s new edited collection, CAUSE LAWYERS AND SOCIAL MOVEMENTS, presents research examining the role of lawyers and legal practices in a politics of rights from the perspective of a broad range of social movements that they seek to serve.

Thirteen articles, usefully placed in context by an introductory chapter written by Sarat and Scheingold, examine the complex relations between lawyers and movements. The selections are consistently excellent and, as a whole, they raise and begin to answer significant questions. In particular, selections in this volume assess the efficacy of lawyers for social movements and their causes – “what cause lawyers can do for, and to, a social movement” (p.3) – as well as the ways in which movements affect the practices of lawyers sympathetic to their goals. The volume attends to the ways in which lawyers help or hinder the movements with which they interact and how movements may both energize and constrain lawyers, encouraging them to engage in political practices that distinguish them from regular lawyers, while perhaps limiting their professional independence and autonomy.

The book is divided into three sections. The first focuses on macro-level questions regarding the “life cycle” of social movements and cause lawyers. Michael McCann and Jeffrey Dudas provide an insightful account of how broad historical changes in the political environment, climate, and culture of the United States have changed the work of lawyers who seek to assist social movements. Placing their analysis in the context of broader domestic and international trends, they explore the question of why public interest lawyers for progressive causes face a more hostile legal environment in the early years of the 21st century than in the 1950s and 60s. Other selections in this section examine in historical context the work of lawyers for specific movements and causes, such as civil rights (Thomas Hilbrink), the rights of same sex couples to marry (Scott Barclay and Shauna Fisher), consumer rights (Stephen Meili), and the rights of Central [*701] American refugees seeking asylum (Susan Bibler Coutin). Among other things, these selections suggest that, over time, the experiences gained by lawyers for specific movements in particular locations will shape and perhaps shift their role conceptions and attitudes toward law and the legal system, as well as their actual practices.

A second section examines the specific work that cause lawyers do for particular movements, focusing on tensions between legal advocacy and political activism. Sandra Levitsky describes the ways in which lawyers for Chicago’s GLBT movement dominate decision-making processes, producing animosity toward these lawyers among some movement activists. Anna-Maria Marshall’s research leads her to draw somewhat different conclusions. She describes the relationship between lawyers and environmental groups as “tenuous,” but often beneficial to movements, as they educate political activists about law and legal procedures and, at times, work cooperatively on comprehensive strategies for change. Kevin den Dulk describes relations between lawyers and a conservative social movement, evangelical Christians, as generally cooperative and highlights important movement gains that are, at least in part, due to the practices of lawyers. This case study shows how lawyers for conservative causes appropriate the strategies and tactics used historically by progressive cause lawyers and the innovative ways in which discourses about rights are reinterpreted and employed on behalf of those seeking to, among other things, restrict abortion rights and encourage state support for religious educational institutions.

Lynn C. Jones also focuses attention on the constitutive properties of law and legal argumentation, introducing the concept of “framing” to illustrate an important practice of cause lawyers. Lawyers may frame conditions experienced by individuals and movements as “unjust” and find ways to articulate demands in legally relevant ways. Lawyers also may react to the frames proposed by opponents by offering “counterframes” that help to further the movement’s goals. Finally, Corey S. Shdaidmah employs interview data with legal services and private public interest lawyers to discuss the ways in which cause lawyers may possess “intersecting identities” as movement activists and legal professionals. This subtle and nuanced analysis suggests the ways in which lawyers make sense of their potentially conflicting roles and highlights both the opportunities and challenges for lawyers of pursuing social justice through the legal system.

A final section examines the roles that cause lawyers may play outside of courtrooms. Selections look at lawyers’ participation in a campaign for a “living wage” in Santa Monica (Kathleen Erskine and Judy Marblestone), a legislative campaign on behalf of the United Farm Workers (Jennifer Gordon), and the work of lawyers seeking to mobilize political support on behalf of community economic development (Scott L. Cummings). [*702]

Overall, the volume’s selections suggest that relationships between lawyers and social movements are multifaceted and that the utility of lawyers for movements is historically contingent and situationally variable, dependent upon the movement, the moment in the life cycle examined, and the specific circumstances surrounding issues of concern to movements, among other things. The articles included in this volume show both the direct and more indirect effects of legal practices on movements and, in particular, the ways in which the mobilization of law by movements through their lawyers may spur both political mobilization and counter mobilization. Some of the case studies show how lawyers may collaborate productively with movements, while others call attention to the potential danger of cause lawyers playing the dominant role and legalizing the aspirations of movements in ways that depoliticize grievances in counterproductive ways. Several of the selections suggest that the boundary between roles as legal professional and political activist blur for many cause lawyers, creating tensions and conflicts that must be negotiated.

Many of the themes developed in these case studies build upon what Scheingold (2004) has called the “new politics of rights” in the preface to the recently published second edition of his classic work. His revised description, drawing on contemporary scholarship on rights, continues to conceive of rights as a contingent political resource that may be used by opposing sides in political struggle, but focuses greater attention on the multiple and varied ways in which the social, political, and cultural context shape the specific ways in which rights are given meaning and deployed and the many and sometimes contradictory affects that their use may have on legal professionals. The case studies presented in this volume provide empirical illustrations of aspects of the “new politics of rights” as it pertains to the work of social movements and cause lawyers, showing the opportunities, constraints, and major dilemmas confronted by cause lawyers who work with and for social movements as well as the challenges for social movements that work with professional legal advocates.

This book represents an important contribution to our understanding of the role of lawyers in social movements and how cause lawyers and movements work together in various ways as they engage in a politics of rights. Together with their previous collaborative works on cause lawyers, Austin Sarat and Stuart Scheingold have taught us a great deal about the utility of lawyers and legal rights for social and political change, usefully highlighted the political significance of studying the practices of public interest lawyers in a politics of rights, and helped set an agenda for exciting and politically relevant research.

REFERENCES:
Sarat, Austin, and Stuart A. Scheingold (eds.). 1998. CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES. New York: Oxford University Press. [*703]

Sarat, Austin, and Stuart A. Scheingold (eds.). 2001. CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA. New York: Oxford University Press.

Sarat, Austin, and Stuart A. Scheingold (eds.). 2005. THE WORLDS CAUSE LAWYERS MAKE: STRUCTURE AND AGENCY IN LEGAL PRACTICE. Stanford, California: Stanford University Press.

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

Scheingold, Stuart A. 2004. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE. Second edition. Ann Arbor: University of Michigan Press.

Scheingold, Stuart A., and Austin Sarat. 2004. SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. Stanford, California: Stanford University Press.

© Copyright 2006 by the author, Mark Kessler.

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NATIVE AMERICANS AND THE CRIMINAL JUSTICE SYSTEM

by Jeffrey Ian Ross and Larry Gould (eds). Boulder, Colorado: Paradigm Publishers, 2006. 288pp. Hardback. $70.00. ISBN: 1594511799. Paper. $35.00. ISBN: 1594511802.

Reviewed by Mary Atwell, Department of Criminal Justice, Radford University. Email: matwell [at] radford.edu.

pp.698-699

Work on Native Americans and the criminal justice system is long overdue. In that sense, this volume could fill a gap for classes that deal with race or ethnicity, presumably, its intended audience. Unfortunately, as with many edited collections, the articles are quite inconsistent in quality. Some are well researched, scholarly, and provocative. Others are more like political screeds based on little or no data or on outdated sources. The editors do not provide dates of publication for the articles. One may infer that all were prepared especially for this collection, but if so, the reliance on data from the 1960s, 1970s, and 1980s is even more puzzling. Individual readers might decide for themselves whether they find enough substance in the anthology to recommend it to students.

Among the excellent articles is “Criminalizing Culture: An Anthropologist Looks at Native Americans and the U.S. Legal System” in which Dorothy H. Bracey examines elements of Native American cultures that promote conformity and how those beliefs come into conflict with mainstream economic and political institutions. She analyzes a number of Supreme Court cases that illustrate these disagreements. This piece would be an ideal vehicle for introducing Native American cultural values from an anthropological perspective, while also providing a clear description of how those values translate into legal issues and how the legal arguments are resolved.

Likewise, “Law Enforcement and the American Indian: Challenges and Obstacles to Effective Law Enforcement” by Eileen Luna-Firebaugh and Samuel Walker, is scholarly, focused, clear in intent and execution, and based on recent and reliable sources. The authors are experts on policing. Their familiarity with both the issues of law enforcement in general and with the unique problems facing tribal police make the article a valuable contribution to both bodies of knowledge. Issues of tribal sovereignty, resources, and conflicting jurisdiction make the task of effective and appropriate policing in Indian Country a complicated matter. Luna-Firebaugh and Walker offer an overview that lays out general questions. They conclude that workable law enforcement in Native American communities requires planning and implementation that take into account individual tribal contexts. They also argue that community policing, widely promoted in other environments, is particularly suited to the Indian situation because of its compatibility with restorative justice and its emphasis on citizen involvement and community cohesion. This chapter focuses readers on the present state of law enforcement [*699] and on realistic approaches for future research and policy.

Another very worthwhile article is “Community-Based Strategies for Dealing with Navajo Juvenile Crime,” by Marianne Nielson, Dorothy Fulton, and Ivan Tsosie. It involves a comparison of the effectiveness of “European model” programs with Navajo cultural model programs in dealing with young offenders. Not surprisingly, the authors find the traditional approach promises to be more effective than strategies based on a more individualistic and punitive European design.

There is a single article on Alaska natives by Nella Lee. Her chapter is fascinating for several reasons, for both the similarities and differences of their experience. The Alaska natives’ loss of land and autonomy has occurred much more recently than those in the lower forty-eight states, yet their rates of poverty, infant mortality, substance abuse, and incarceration are comparable. With enactment of the Alaska Native Claims Settlement Act (ANCSA) in 1971, Alaska natives lost title to most of their tribal lands as well as aboriginal hunting and fishing rights. In return, they received financial compensation. The actual results have included loss of autonomy, dependence, and the destruction of traditional culture and subsistence economies. Not surprisingly those upheavals have also included increases in crime and violence. Because native concepts of justice and social control are quite different from western ideas, and because law enforcement and court jurisdictions are muddled, native Alaskans suffer further disruptions. A 1994 report by the Alaska Natives Commission recommended a number of reforms to help achieve self-reliance, self-determination and integrity of native cultures. However, the article implies that few of the Commission’s proposals have been seriously considered.

There are several other valuable pieces in the volume, but the topic deserves a consistently higher standard of scholarship if students are to develop an appreciation for issues concerning Native Americans and criminal justice. Especially disappointing are the articles contributed by the editors. One entitled “Alcoholism, Colonialism, and Crime” promises to tackle a topic of major significance. The author quotes research he conducted with samples of twelve or fifteen respondents and generalizes based on those numbers. Similarly, another chapter by one of the editors states that his attempts to gather data were “generally ignored” by the respondents but that he had a “handful” of contacts. Perhaps based on such limited information, one ought not to try to publish.

Several other things would improve the collection: a thorough discussion of criminological theory (the introduction of this book contains less than two full pages on the subject); a solid historical chapter that lays out the development of the legal relationships between Native Americans and the dominant culture: and additional accessible anthropological articles like Bracey’s and high quality empirical work, such as the contribution by Walker and Luna-Firebaugh.

© Copyright 2006 by the author, Mary Atwell.

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COURTIERS OF THE MARBLE PALACE: THE RISE AND INFLUENCE OF THE SUPREME COURT LAW CLERK

by Todd C. Peppers. Stanford: Stanford University Press, 2006. 328pp. Cloth. $55.00. ISBN: 0-8047-5381-4. Paper. $21.95. ISBN: 0-8047-5382-2.

Reviewed by Deborah J. Challener, Mississippi College School of Law. Email: challene [at] mc.edu.

pp.693-697

Todd C. Peppers’ primary objective in this book is to provide a systematic framework for answering the long-debated question of whether “law clerks wield an inappropriate amount of influence over their justices?” (p. 2). Peppers explains that while many have written on this topic over the last fifty years, the literature has failed to address crucial questions about the use of law clerks by Supreme Court justices: “[W]hat are the institutional roles and norms surrounding the hiring and utilization of law clerks . . . , how have these rules evolved over time, and do these institutional structures allow law clerks to leave their own fingerprints on constitutional doctrine?” (p.xiv).

COURTIERS OF THE MARBLE PALACE begins by briefly describing the origins of the debate regarding the influence Supreme Court law clerks have on the justices. Peppers explains that this debate began nearly fifty years ago when multiple authors began publishing articles speculating that improper influence by law clerks was possible, if not probable. Most notably, Peppers writes, William Rehnquist published an article in 1957 revealing that when he clerked for Justice Robert Jackson, law clerks prepared memoranda for their justices recommending whether the justice should grant or deny a particular certiorari petition. Rehnquist asserted that because a majority of the clerks were liberal, a clerk’s unconscious slanting of a memorandum could have the ultimate effect of moving the court “in a more liberal direction” (p.3).

Peppers further explains that since Rehnquist’s article, many others have offered opinions and theories agreeing and disagreeing with him. In fact, shortly after Rehnquist’s article was published, one U.S. Senator recommended that Supreme Court law clerks undergo confirmation hearings. More recently, in his 1998 book, CLOSED CHAMBERS, former Blackmun law clerk Edward Lazarus intimated that it was conservative law clerks, as opposed to liberal law clerks, who have attempted to impose their personal policy preferences on their justices. Given the long-standing debate, Peppers decided to undertake the daunting task of researching the evolution and development of the Supreme Court law clerk institution in hopes of arriving at a supportable conclusion.

Peppers analyzes the question of Supreme Court law clerk influence by applying principal-agent (P-A) theory to the clerkship institution. He first characterizes the relationship between justice and law clerk as one that is similar to the relationship between [*694] principal and agent. He then uses P-A theory to develop hypotheses about the ability of law clerks to influence their justices.

Peppers first assumes, under principles of P-A theory, “that both the justice and the law clerk are self-interested actors with multiple goals regarding the agency relationship” (p.15). For example, a law clerk may view a Supreme Court clerkship as an opportunity to further his policy agenda rather than implementing the policy preferences of the justice for whom he works. Peppers posits that to the extent that law clerks have substantive job duties such as drafting certiorari and bench memoranda and opinions, they will have more opportunity to pursue their own goals and influence the outcome of decisions. Peppers further hypothesizes that in order to prevent law clerks from pursuing their own agendas, justices will “create rules and informal norms designed to constrain” the clerks (p.16). As a result of these regulations, Peppers argues, even law clerks who have substantive responsibilities ultimately will have little opportunity to exert undue influence on individual justices or the Court as a whole.

As Peppers explains in Chapter 2, in order to prove his hypotheses he obtained information from many sources, including the U.S. Supreme Court Public Information Office, former justices’ personal papers, biographies, journal articles, oral histories, and publicly available interviews. In addition, Peppers surveyed current and former law clerks and interviewed many of them. He also interviewed two current Supreme Court justices and some individuals “who were familiar with the Supreme Court’s clerkship practice” (p.19).

After describing his sources, Peppers provides an overview of the backgrounds of former Supreme Court law clerks. His stated reason for doing so is that “[i]f law clerks wield influence and affect policy decisions, then the gender, racial and socioeconomic backgrounds, legal training, and ideology of the law clerks become relevant” (p.17). Peppers found that although the Court has done a better job in recent years of ensuring that females are adequately represented in the law clerk corps, historically women comprise only fifteen percent of the total number who have served. Additionally, Peppers’ research reveals that minorities are severely underrepresented. Of the law clerks about which Peppers collected data, ninety- four percent were Caucasian. With regard to academic background, Peppers reports that, while eighty-one different law schools are represented, the justices pick an overwhelming majority of their clerks from the elite law schools, such as Harvard, Yale, and Stanford.

As for political ideology, Peppers finds that a substantially greater percentage of clerks identified themselves as more closely aligned with the Democratic Party than with the Republican Party at the time they clerked. Peppers notes, however, that only 491 of 1524 former clerks answered his survey question about party affiliation. He therefore admits that “any conclusions about law clerk political preferences must be [*695] tentative” (p.34). He concludes Chapter 2 by summarizing the data that he collected on law clerks’ backgrounds, but he draws no conclusions about their influence based on this information.

In Chapters 3 through 5, Peppers provides a detailed explanation of the evolution of the Supreme Court law clerk position. Beginning in 1882 and continuing through 2004, he systematically discusses each justice, providing information, to the extent that it is available, regarding the justices’ hiring processes, the qualifications, academic and otherwise, of their law clerks, the background of each clerk, and the job responsibilities each justice delegated to his respective clerks.

According to Peppers, early law clerks had far different responsibilities than their modern counterparts. Peppers reports that Justice Horace Gray hired the first law clerk in 1882, but it was not until 1886 that Congress allocated funds for each justice to hire one clerk. With few exceptions, the clerks during this period served as stenographers, legal secretaries, and personal assistants. Because the clerks of this era had very few substantive legal duties, Peppers asserts that they had little opportunity to influence the outcome of the cases before the Court. Consequently, he concludes that there was no need for rules to restrain the law clerks, and, from what he could discern, the clerks in fact were not “bound by formal confidentiality rules” (p.207).

In 1919, Congress authorized funding for each justice to hire a second clerk. Chapter 4 details how this additional funding paved the way for the position to evolve from stenographer or secretary to legal assistant. Thus, from 1920 through the 1940s, Supreme Court law clerks had duties such as “editing legal opinions, performing cite checks, Sheperdizing cases, conducting legal research, and summarizing cert[iorari] petitions” (p.84). Peppers points out that with few exceptions, the law clerks were not required to provide legal analysis, write bench memoranda, or draft opinions. He concludes that, although the clerks of this period had more substantive legal duties, they were not “decision makers” (p.208). Furthermore, Peppers asserts that “conference discussion and opinion circulation were sufficient institutional checks” on any law clerk influence (p.208). Accordingly, neither formal nor informal rules were necessary to restrain the clerks, and none existed.

In Chapter 5, Peppers explains the evolution of the position in the 1950s and 1960s from legal assistant to law firm associate. He contends that comparing modern Supreme Court clerks to law firm associates is appropriate because clerks “assume[] the same responsibilities that an associate would in a small but very prestigious law firm” (p.144). Peppers begins with the Warren Court in 1953 and concludes with speculation about the Roberts Court. He thoroughly describes the duties and responsibilities that each justice delegated (or delegates) to his or her law clerks, including preparing bench and certiorari memoranda and drafting and editing opinions. Peppers demonstrates that their duties gradually increased over time, culminating in the [*696] clerks of the Rehnquist Court being given more substantive responsibilities than any others in the history of the Court.

In addition to discussing the substantive transformation of clerks’ duties since the 1950s in Chapter 5, Peppers also describes the development of ethical rules. Justices Warren and Burger “imposed general confidentiality rules upon all clerks, and in 1987 the Supreme Court promulgated an ethical code of conduct for its clerks” (p.210). Furthermore, some justices developed “intrachamber rules” (p. 210). Peppers asserts that the creation of these rules and other practices (such as screening candidates based on political ideology) was necessary in order for the justices to monitor the law clerks and prevent them from using or having the opportunity to use their increased responsibilities to exert improper influence.

In the final chapter, Peppers contends that the original hypotheses he “generated from P-A theory are supported by the historical evolution of the clerkship institution” (p.207). Thus, he argues that when Supreme Court clerks had limited duties they also had little opportunity to sway the justices and there was no need for rules to govern their conduct. As the position evolved and the justices delegated more substantive responsibilities to the clerks, however, Peppers contends that the justices also created formal and informal rules and procedures to constrain the clerks. These constraints, Peppers asserts, in turn prevented (and continue to prevent) the clerks from inappropriately influencing the justices. Based on his research, Peppers ultimately concludes that “[t]he necessary conditions for the exercise of influence by law clerks have rarely, if ever, existed on the Supreme Court” (p.207).

COURTIERS OF THE MARBLE PALACE is a compelling, informative book. As much as anything, it is a tremendous informational source for anyone interested in the Supreme Court. It is evident that the author has thoroughly researched the topic and provided the reader with a factual view of the past and present responsibilities of a Supreme Court law clerk. Because Peppers relies on principal-agent theory to develop his hypotheses and used exhaustive research to prove them, the book also appears to be objective.

The problem with Peppers’ conclusion, however, is that the question he addresses – whether law clerks wield an inappropriate degree of influence over their justices – is nearly impossible for a Supreme Court outsider to answer. Although I learned a great deal of historical information from reading COURTIERS OF THE MARBLE PALACE, I am not convinced that the data Peppers collected actually proves that modern law clerks do not exert undue influence over their justices. At most, Peppers’ research suggests that it is unlikely that the early clerks who served as stenographers and secretaries had the opportunity to influence the Court.

Although Peppers collected a wealth of data about former justices and their law clerks, reliance on these data to draw [*697] conclusions about how justices hire and utilize their clerks today is questionable. Peppers concedes that six of the sitting justices declined to be interviewed or answer written questions, one justice did not respond to his requests at all, and there were no former justices alive to interview. In addition, while he mailed approximately 1000 one-page surveys to former clerks, only about 400 responded. Moreover, Peppers admits that the survey merely asked for “basic information,” such as academic background (p.18). Peppers states that he sent a second round of surveys to nonrespondents, but he does not give his response rate for the second survey.

Peppers did interview more than fifty former clerks, but requested interviews with 100. Because of his “high rejection rate for interviews,” Peppers mailed his interview questions to those who refused to be interviewed in person (p.19). He reports that this approach was “moderately successful” (p.19). Perhaps most importantly, however, Peppers acknowledges that, although he was able to rely on interviews with former clerks from the 1950s through the 1970s, those from the 1980s and 1990s evidenced “a general unwillingness to be interviewed” (p.20). Thus, most of his “written interview requests were answered and declined, with the ongoing duty of law clerk confidentiality cited as the reason” (p.20).

In short, the only people who truly know whether law clerks from the late twentieth and early twenty-first centuries exert or exerted inappropriate influence are the individual clerks and the justices themselves. These are the precise individuals who, for the most part, refused to shed light on the issue. Peppers concedes as much when he indicates that past and present law clerks and justices possess the best source of data for him to test his theory, but “[t]ime and confidentiality rules . . . limited [his] reliance on these primary sources” (p.18). Ironically, the very rules that Peppers employs to prove his hypotheses are the ones that hindered his ability to complete his research. While it is perhaps impossible for Supreme Court outsiders to ascertain the influence wielded by recent or current law clerks, if history is any guide it is feasible that in time this information may become available. Until then, the power of today’s Supreme Court clerks to “leave their fingerprints on constitutional doctrine” will remain shrouded in mystery.

REFERENCE:
Lazarus, Edward P. 1998. CLOSED CHAMBERS: THE FIRST EYEWITNESS ACCOUNT OF THE EPIC STRUGGLES INSIDE THE SUPREME COURT. New York: Times Books.

© Copyright 2006 by the author, Deborah J. Challener.

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PARTY FUNDING AND CAMPAIGN FINANCING IN INTERNATIONAL PERSPECTIVE

by Keith Ewing and Samuel Issacharoff (eds). Oxford and Portland, OR: Hart Publishing, 2006. 342pp. Hardback. $80.00/£40.00. ISBN: 1-84113-570-4.

Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: RushM [at] wlu.edu

pp.689-692

Political “corruption” takes many forms, ranging from the basic quid pro quo exchange of political favors for influence to the more subtle (and perhaps more damaging) inequality of political influence that results from inequality of wealth. The weapons that democratic governments have on hand to combat these ills range from outright criminal sanction to regulating the flow of money into and then out of the hands of political parties, their candidates, or both. In PARTY FUNDING AND CAMPAIGN FINANCING IN INTERNATIONAL PERSPECTIVE, Keith Ewing and Samuel Issacharoff have assembled a provocative collection of essays that touch upon efforts in Great Britain, Canada, Australia, Japan, New Zealand, United States and the European Union to control the corrupting impact of money on the political process.

The essays are organized around several dichotomies concerning the manner in which campaign spending can or should be regulated. At the outset, Issacharoff and Ewing set forth the “core dilemmas” of campaign spending regulation in all democratic societies. First, “How are the central actors in the political arena supposed to gather the funds necessary to operate effectively on behalf of their chosen political ends?” Second, “how may they spend money in furtherance of their chosen political ends” (p.1)? They then set forth the parameters that frame their discussion. Nations seem generally to have three regulatory options when it comes to campaign spending: outright regulation, laissez faire or “non-regulatory intervention” such as transparency requirements (p.3). They may attack campaign spending from the supply side by regulating the flow of funds to candidates and parties, or they my do so from the demand side by establishing spending limits and thereby reducing the need for funding sources (pp.3-4).

Finally, a nation may base its campaign finance system on public or private funding. The editors note that this aspect of the campaign spending debate is laden with irony. As the state seems to have withered and political parties seem to be losing relevance (due, e.g., to falling voter turnout and party membership), the former is being asked to channel funds into the latter. Hence, they ask whether the state is essentially being asked to transfer life support from voters to the dying political organizations that they have abandoned.

The book organizes the countries it addresses along the lines of a “regulatory trajectory” (pp.8-9), ranging from the “primitive” model of “imperfect transparency rules” in New Zealand, to the systems of “intense direct regulation” in the UK, to the hybrid public/private funding systems in Australia, Japan and Quebec. The editors acknowledge that the trajectory is rough and its categories are imperfect. [*690] In the end, though, they note that a unifying theme across all of the nations in the study is “the surprisingly high level of discontent” (p.10) among scholars who study them.

The strength of the collection lies in its diversity. The book is organized into fourteen chapters split across six subsections. In the space of this review it is impossible to do justice to each chapter. But, they fall into two broad categories, with the exception of a concluding chapter on political parties in the EU by Stephen Dan and Jo Shaw. While intriguing, it is included at the end and serves more as a codicil to, than a coordinated part of, the rest of the volume. Those chapters dealing with countries other than the United States and Canada tend more towards historical analysis of the development of campaign spending law. They discuss examples of particular scandalous events or corrupt practices that gave rise to changes in the electoral law, and they usually offer a skeptical assessment of the success of their nation’s campaign spending regimes. Briffault’s analysis of “soft money” in the United States and the development of recent American case law falls in this category as well.

The chapters by Issacharoff and Persily dealing with American law and those by Feasby and Hiebert on Canada address broader issues of democratic theory and how courts conceive of particular aspects of it. Thus, they address the scope and definition of the notion of corruption, the tension between egalitarian and libertarian impulses in the development of campaign spending law, the nature and definition of political parties, and so forth. In so doing, they provide a conceptual framework in which to assess the efforts to curb the impact of campaign spending discussed in the other chapters.

Even the most interested scholar of campaign spending may find the level of detail in the essays as overwhelming as it is vital to an understanding of the political milieu of the country to which a particular chapter is dedicated. To appreciate the particular events that gave rise to campaign spending reform impulses in the different nations, it is necessary to gain an appreciation of the political context in which scandal, sleaze and reform occur. Accordingly, the reference to the amount of detail is not offered as a criticism. It is meant only to recognize the meticulous care with which the essays are presented. Thus, the broad commonalities of the essays—clear descriptions of lamentable political practices, thoughtful accounts of well-intentioned attempts to remedy them, and acknowledgments of the limits of such reform attempts—will impress even the most disinterested scholar. Indeed, they demonstrate the pervasiveness of concern across nations and cultures with controlling corruption and preserving the integrity of the democratic process.

The conceptual framework in the other four chapters nicely sets forth the tensions and contradictions in democratic theory that render attempts to regulate the political process so controversial. Issacharoff addresses the questions of democratic theory posed by the conflict of interest inherent in any attempt by incumbent political powers to regulate the political process. The self-interest (or, at least, the drive for self-preservation) [*691] of incumbent legislators renders any attempt to constrain political speech and spending suspect. In this respect, Issacharoff draws upon the concerns raised by John Hart Ely when he set forth his theory of judicial review in DEMOCRACY AND DISTRUST.

The chapters by Canadian scholars, Janet Hiebert and Colin Feasby, evince an intriguing contrast to the chapters on the other countries. Whereas the other chapters are more or less neutral with regard to the United States and one, in particular (Ejima’s chapter on Japan) speaks somewhat favorably about it disclosure provisions, Hiebert and Feasby note that Canadian scholars have sought to distance themselves from it. In so doing, they contrast the individualism of the American Supreme Court’s approach to campaign spending restrictions with the Canadian Court’s more egalitarian approach to political and electoral rights. Yet, despite the contrasts they draw, Feasby finishes his chapter by noting that the Canadian Court’s egalitarian approach to politics is “impoverished” (p.268) by its lack of attention to competitiveness and the extent to which so-called reform measures may diminish it. In this respect, his essay ends up touching upon the same issues noted by Issacharoff.

What one takes away from this volume is an appreciation for the common struggle against corruption in which political scientists and lawmakers engage around the world. All of the writers share dissatisfaction with the campaign spending laws of the countries they study. Yet, none is able to offer reform suggestions that do much more than pose marginal changes to existing campaign finance laws or would force their nations to sacrifice one democratic value for another. Clearly, no country has yet managed to construct a corpus of campaign spending laws that both maximizes diversity of opinion and minimizes inequality of political power (borne of inequality of either wealth or political acumen).

In toto, the volume demonstrates that the campaign spending debate is now caught in a contradiction. On the one hand, government must pass the regulations necessary to control either outright quid pro quo corruption or the equally pernicious, but perhaps less subtle corruption that arises from political or economic inequality. On the [*692] other hand, insofar as government actors are also the sources and beneficiaries of corruption, any law they pass is now subject to question.

This is, of course, more of an intellectual than a practical observation. Anti-corruption laws must emanate from the legislature. But, this does seem to render the study of campaign spending regulation a reactive instead of a proactive endeavor. The volume demonstrates that attempts to pre-empt corrupt practices or to control the impact of wealth in advance are bound to fall short of their goals or generate controversy. Granted, some rules (such as disclosure laws) might generate procedures that will, at least, publicize the sources of monetary influence. But, as the nation-specific essays demonstrate, the “hydraulic theory” of campaign spending is still relevant: money will find its own way. On the other hand, so long as statutes are clearly written, we can, at least, look to the courts to prosecute violators of campaign spending laws even though their authors might benefit from them. While this might provide some basis for assuaging the discontent among the contributors, it is clear that reliance on the criminal justice system does more to punish than prevent campaign spending abuses.

The clear lesson from the studies in this volume is that a particular nation’s approach to campaign spending depends upon which of the many strains of democratic theory characterize its political and constitutional traditions. Whether and how a country balances or emphasizes individual rights, party government, egalitarianism, and so on, will have a determinative impact on how it approaches matters of campaign spending.

In closing, this is a superior survey of contemporary struggles with issues of campaign finance in several countries. It offers the newcomer to the field a sound theoretical and practical introduction and will offer the experienced practitioner a valuable reference to the countries that it covers.

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

© Copyright 2006 by the author, Mark Rush.

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TRUST AND CRIME IN INFORMATION SOCIETIES

by Robin Mansell and Brian S. Collins (eds). Northampton, MA: Edward Elgar Publishing, 2005. 480pp. Hardback. $135.00/£79.95. ISBN: 1845421779.

Reviewed by Robert G. Brookshire, Technology Support and Training Management Program, University of South Carolina. Email: brookshire [at] sc.edu.

pp.685-688

The nature of trust has been explored by thinkers beginning with the ancient Greek philosophers, but information and communication technologies, especially the Internet, have introduced new complexities to this already knotty concept. On what basis can technology users trust each other when they have no personal interaction? Their identities may be obscured, they might not be located where they appear to be, and they may not even be human beings. The users’ ability to trust the technology itself could be doubtful, as communications may not be secure or accurate. These new technologies have created new opportunities for exploitation, fraud, and theft.

These issues and many others are explored in TRUST AND CRIME IN INFORMATION SOCIETIES. This volume contains ten research papers and four essays arising out of the United Kingdom’s Foresight project on Cyber Trust and Crime Prevention. Supported by the Horizon Scanning Centre, Foresight projects examine new sciences and technologies and their impacts on society, with the aim of identifying economic opportunities and informing public policy. The Government’s Office of Science and Technology commissioned the Foresight project, and the original versions of the papers and essays contained in this volume are available for download from the Foresight web site, http://www.foresight.gov.uk. The project was originally undertaken in 2004.

In their introductory essay, “Cyber Trust and Crime Prevention,” the editors, Brian S. Collins of the Department of Information Systems, Royal Military College of Sciences at Cranfield University, and Robin Mansell of the Department of Media and Communications at the London School of Economics, characterize the approach taken by the studies collected here as focusing on “the economic, social and political implications of cyberspace technologies.” This contrasts with the dominant American approaches, which tend to be technological or managerial. Because of the approach taken here, the studies in this volume will be accessible to most readers with backgrounds in political science or law.

Collins and Mansell give a broad overview of the issues of risk, trust, and ethics in information and communication technologies and how these affect our ability to control crime. They conclude that much more needs to be learned about how people behave in cyberspace and that technology alone cannot prevent crime.

Most of the content in the book on crime and crime prevention appears in the first [*686] chapter. In spite of its title, the book is primarily concerned with issues of trust. As such, it provides an admirable overview of the questions of trust arising out of information technologies, particularly the Internet.

In “Dependable Pervasive Systems,” Cliff Jones and Brian Randell, both of the School of Computing Science at the University of Newcastle upon Tyne, look at the problems that have to be tackled to make large software systems functional and dependable enough so that people can trust them. They recommend that dependability requirements be included in system design specifications, something that is not always current practice. The formal methods of computer science should be more widely used. Further research on dependability architectures is necessary, and most importantly, existing systems must be adapted or evolved to make them more dependable

The chief building blocks of trust in information and communications technologies are identification and authentication: Are the users or computer systems who they claim to be? These topics are addressed by Fred Piper, Matthew J. B. Robshaw, and Scarlet Schwiderski-Grosche of the Information Security Group, Royal Holloway, University of London. They give an excellent overview of these concepts suitable for the lay reader, introducing cryptography, authentication schemes, and biometric methods. They point out that we have a long way to go to control and administer computer security systems reliably, something that depends more on humans than on technology.

In “Knowledge Technologies and the Semantic Web,” Kieron O’Hara and Nigel Shadbolt of the University of Southampton examine issues of trust in the next generation of the World Wide Web. The semantic web is the addition of more identifying content to the structure of web pages so that web software can infer more information about them. To these authors, the semantic web is both a knowledge technology itself and an environment for the creation of other knowledge technologies. O’Hara and Shadbolt discuss the critical role trust plays in all knowledge technologies, and review the strategies and tactics that may be used to establish trust in this context. They conclude by suggesting a number of contributions to the study of trust and technology from a variety of disciplines, including philosophy, the social sciences, management science, marketing, and other fields. The chapter contains a useful appendix that provides a brief introduction to the semantic web.

Sarvapali D. Ramchurn and Nicholas R. Jennings, of the School of Engineering and Computer Science at the University of Southampton, explore “Trust in Agent-Based Software.” The use of software agents is becoming common; you use one each time you ask Expedia or Travelocity to find the best airfare to a destination or locate hotels in a particular city. Many software agents, particularly on the Internet, work by partnering with other software agents. What is required for all these agents to trust each other? The authors examine [*687] trust at the individual level, where agents evaluate the trustworthiness of each interaction partner, and at the system level, where the rules of the system enforce trust. They develop several trust models based on sociological, machine learning, and game theories. They find that all trust models are deficient in one or more respects, and identify a number of areas in which further research is critically necessary.

William H. Dutton and Adrian Shepherd of the Oxford Internet Institute review the findings of the Oxford Internet Survey conducted in 2003 in “Confidence and Risk on the Internet.” They find that attitudes of trust toward the Internet held by adults and teens in Great Britain follow a pattern called the “certainty trough.” Those without much experience with the Internet tend to distrust it; those who use it more tend to trust it more; but those who have the most experience with the Internet seem to be more cognizant of the risks involved and more likely to have had bad experiences, thus increasing their distrust. Businesses and governments wishing to provide more services over the Internet must work to establish its trustworthiness.

“Perceptions of Risk in Cyberspace” is the title of the contribution by Jonathan Jackson, Nick Allum, and George Gaskell. Jackson and Gaskell are associated with the Methodology Institute at the London School of Economics and Political Science, and Allum is in the Department of Sociology at the University of Surrey. This chapter reviews the social science literature on the public perception of risk. They examine several different models of risk perception but seem most attached to the social amplification of risk framework (SARF). They extend their discussion to perceptions of crime but do not spend as much time on applications to the technological environment as the other authors in this volume.

Charles D. Raab, a Professor of Government at the University of Edinburgh, examines “The Future of Privacy Protection.” Raab provides a succinct overview of privacy issues, both in the European context and internationally. He then explores “privacy impact assessment,” which evaluates the effects that activities or proposals might have on individual privacy. He calls for policy makers to try to think more clearly about privacy as a social good, the relationship between privacy and surveillance, what kinds of laws might best protect privacy, and the connection between risk and trust.

Information systems security mechanisms and procedures are often compromised by their poor usability. We have to keep track of dozens of usernames and passwords for different systems, for example, which encourages us to write them down or store them in insecure places. M. Angela Sasse, a computer scientist at University College London, addresses the usability problems with current technologies in “Usability and Trust in Information Systems.” She makes a number of sensible recommendations on how security systems might be improved by taking into account computer users’ psychology, attitudes, and practices. [*688]

James Backhouse, of the Department of Information Systems at the London School of Economics and Political Science, integrates several industry case studies in his paper, “Risk Management in Cyberspace.” The case studies, conducted by his co-authors Ayse Bener, Narisa Chauvidul-Aw, Frederick Wamala,and Robert Willison, examine the behavioral and organizational dimensions of risk and security in several global companies that use the Internet. These cases illustrate that the behaviors and attitudes of computer users are at least as important as technology and policy in managing risk in information systems.

Jonathan Cave, an economist at the University of Warwick, brings the tools of economics to bear on the analysis of trust. The first part of his paper, “The Economics of Cyber Trust between Cyber Partners,” uses a game-theoretic approach, while the second part is based on structure, conduct, and performance analysis. The former section provides an excellent introduction to the application of game theory in the analysis of trust, and Cave succeeds in demonstrating that his discipline can make substantial contributions to the study of trust in cyberspace.

The final three essays, by Edward Steinmueller of the University of Sussex, Kieron O’Hara, and John Edwards, an international lawyer, are brief discussions covering areas not addressed by the previous lengthier chapters. Steinmueller considers additional economic analyses of trust. O’Hara examines the ethics of trust in cyberspace, including the views of Hobbes, Hume, Smith, Kant, and Rousseau, and anchors the discussion of trust in the technological realm in the broader philosophical tradition. Edwards addresses regulatory and legislative issues.

Despite the variety of methodologies, analytical approaches, and definitions of trust and risk in this volume, the consensus of the authors is that much research remains to be done before technologists, policy makers, managers, and computer users can begin to understand the nature of trust in cyberspace. In particular, technological and managerial approaches must be integrated with research grounded in philosophy and the social, psychological, behavioral, and economic sciences. This collection does an excellent job of summarizing and introducing the contributions of this second set of disciplines. This work must be extended, and the interdisciplinary dialogue must commence.

© Copyright 2006 by the author, Robert G. Brookshire.

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MAPP V. OHIO: GUARDING AGAINST UNREASONABLE SEARCHES AND SEIZURES

by Carolyn N. Long. Lawrence, Kansas: University Press of Kansas, 2006. 224pp. Cloth. $35.00. ISBN: 0-7006-1440-0. Paper $15.95. ISBN: 0-7006-1441-9.

Reviewed by Gloria Cox, Associate Professor of Political Science, University of North Texas, and Dean, Honors College. Email: gcox [at] unt.edu.

pp.682-684

MAPP V. OHIO: GUARDING AGAINST UNREASONABLE SEARCHES AND SEIZURES is part of the Landmark Law Cases and American Society series, an initiative of the University Press of Kansas. This is one of several series published by the press, including those on the American Presidency, Modern War, and American Political Thought. The Landmark Law Cases and American Society Series focuses on books about important legal cases and constitutional principles. Dozens of titles are in print, each concentrating on a specific important case or constitutional issue.

In MAPP V. OHIO: GUARDING AGAINST UNREASONABLE SEARCHES AND SEIZURES, Carolyn Long examines a search and seizure case of monumental significance. There have been other important Supreme Court rulings concerning the Fourth Amendment’s ban on unreasonable searches and seizures, but, as Long explains, MAPP dramatically changed the way state and local law enforcement officers do business by imposing the exclusionary rule on their activities. Federal authorities had operated under an exclusionary rule for decades (since WEEKS v. UNITED STATES in 1914), but state and local law enforcement personnel were not subject to the same restriction. By the time of MAPP, about half the states had adopted their own exclusionary rule, but law enforcement officials in the remaining states could still use illegally seized evidence at criminal trials.

The ruling in MAPP v. OHIO is important for another reason: it heralded the revolution that the Warren Court would effect in procedural rights for the criminally accused, opening the door to many other rulings that would have great impact. Among those are the rights to have the assistance of an attorney (GIDEON v. WAINWRIGHT, 1963); to remain silent (ESCOBEDO v. ILLINOIS, 1964); and to be given notice of one’s rights when placed under arrest or taken into custody (MIRANDA v. ARIZONA, 1966). All of these rulings, including MAPP v. OHIO, sparked major, often acrimonious, debates, many of which continue on some level to this day, and all the rulings have been refined or altered to some extent by later courts. Search and seizure rules, the key issue in MAPP, continue to grab headlines, as current issues such as the war on terror and the Patriot Act provoke discussions about Fourth Amendment rights.

Long provides an excellent framework for consideration of the exclusionary rule. Perhaps the dominant recurring theme (and one of the truly important questions in this debate) is the existence of two divergent understandings of the nature of the exclusionary rule. To some [*683] scholars and judges, it is a constitutionally mandated remedy to deal with law enforcement transgressions against the guarantees citizens are afforded by the Fourth Amendment. To others, it is simply a device created and imposed by judges, and, as such, subject to change over time. Long allows this important controversy to emerge, then returns to it appropriately again and again. Considering that it is a key concept of the analysis (and of virtually all debates about the exclusionary rule), one wonders if it would benefit the reader to have a more systematic exploration of the subject early in the book.

Any discussion of the Fourth Amendment will be technical and legalistic to some degree, but Long adds interest by including information from her interviews with some of the main figures in the case, including Dollree Mapp. Long’s discussion of her interviews adds an extra dimension to our understanding of these individuals. Mapp turns out to be a bold woman who found herself on the wrong side of the law more than once during her lifetime. She provides vivid details of the search conducted in her home and mocks the reactions of police to the “dirty books” they found and confiscated during the search. More interesting than the Mapp interview in many respects, though, is Long’s interview of Police Officer Carl Delau, who raided and searched Mapp’s house while pretending to have a search warrant and arguing that he did not actually need one. Long is quick to point out that the behavior of Delau and other Cleveland police officers was not unusual (p.11), and that police officers routinely disregarded the requirement for a search warrant and were allowed to go to court with whatever they had seized. The reader is treated to a dramatic illustration of the distance between the guarantees of the Fourth Amendment and the actions of state and local law enforcement officials.

These interviews also serve to illustrate a fact underlying virtually every case that reaches the Supreme Court: the ordinary nature of the people and circumstances from which the issue emerged. In fact, according to Long, even the attorneys were far from being distinguished defenders of the Constitution or great legal minds. Be warned, however, that while this is an interesting beginning to the book, it is also benignly deceptive, as the story approach quickly gives way to a real discussion of legal and constitutional issues. In fact, by the end of Chapter One, the case has developed to the point that attorneys are already contemplating whether to appeal lower court rulings to the Supreme Court. Within this serious discussion, Long continues to explore the nature of the exclusionary rule, setting the stage for later discussions of Republican administration politics.

It may be frustrating to some readers when the book departs from the friendly beginning to become progressively more technical and legalistic. By the final chapters, there is mention of one case after another, with less explanation than most readers will need. However, it is quite likely that Long was constrained by guidelines for length and number of pages that prevented a longer, more nuanced discussion of court decisions. [*684] This problem is compounded by a noticeable imbalance, with far more discussion of some points than others that seem to be of equal relevance.

What will provoke even greater concern for many readers is the lack of any footnotes or endnotes in this book. Long bears no responsibility for this stylistic decision, as it is a requirement for books in the series and is designed to make the book more appealing and readable. Although a bibliographical essay is included at the end, the conscientious reader who believes quotes should be either attributed or avoided will find it frustrating to read without citations. It is particularly troubling in Chapter Six when Long considers various studies about the effects of the exclusionary rule and yet leaves the reader without source information.

These concerns are balanced by especially interesting treatments of certain topics, such as Long’s description of how the case was prepared for oral argument before the Supreme Court. On the one hand is a case about a constitutional issue of great importance, which is to be reviewed by a court of eminent judges. On the other is a team of attorneys which is, individually and collectively, in way over their heads. According to Long, a court clerk remarked on the poor quality of the legal briefs submitted by both sides, and how glad the justices were to receive excellent briefs from the Ohio and American Civil Liberties Unions (p.69). According to Long, ACLU attorney Bernard Berkman requested and was granted time to speak during oral argument, the first time such a privilege was accorded to an amicus attorney. He saved the day with his remarks, which came after those of State of Ohio Attorney Gertrude Mahon who suffered through a truly miserable appearance before the Court (pp.75-76). Students of law and of the Supreme Court will find Long’s account of the process well worth the read.

Overall, Long provides a book with potential appeal to a wide audience, as it can be appreciated by anyone with an interest in the issue, from the curious college undergraduate or professor who wishes to know more about the exclusionary rule to the general reader with an interest in legal issues. Long achieves the enviable, by writing about an important topic with meaningful detail that generally informs but does not frustrate. MAPP V. OHIO: GUARDING AGAINST UNREASONABLE SEARCHES AND SEIZURES provides a valuable introduction to a legal issue of great importance and broad interest.

CASE REFERENCES:
ESCOBEDO v. ILLINOIS, 378 US 478 (1964).

GIDEON v. WAINWRIGHT, 372 US 335 (1963).

MAPP v. OHIO, 367 US 643 (1961).

MIRANDA v. ARIZONA, 384 US 436 (1966).

WEEKS v. UNITED STATES, 232 US 383 (1914).

© Copyright 2006 by the author, Gloria Cox.

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THE COURTS

by Ian Greene. Vancouver: University of British Columbia Press, 2006. 200pp. Cloth, $65.00. ISBN: 0774811846. Paper (2007). $22.95. ISBN: 0774811854.

Reviewed by David Erdos, Visiting Researcher, Victoria University of Wellington. Email: derdos [at] alumni.princeton.edu.

pp.679-681

Whether positive or critical, recent politically-focused normative studies of the legal and judicial process in Canada have, with few exceptions, one factor in common. Their overwhelmingly dominant focus is on the policy-making role of the Canadian judiciary under the Charter of Rights (1982). Within this genre, many vital and important contributions to the literature have been made. In particular, one thinks of CHARTER CONFLICTS (Hiebert 2002) and THE CHARTER REVOLUTION AND THE COURT PARTY (Morton and Knopff 2000). Nevertheless, as Ian Greene points out, notwithstanding the importance of the judiciary’s policy-making role (especially under the Charter), the principal role of the Court system is to “resol[ve] serious disputes according to law as expeditiously and impartially as possible” (p.5). One unintended side-effect of the rather narrow focus of recent Court literature in Canada has been that a number of politically important issues related to this core function have been somewhat overlooked. The key strength of this work is that it helpfully refocuses the debate by assessing whether the Courts are living up to reasonable democratic expectations in relation to this “decision-making” function with as much detail and thoroughness as it carries out this task in relation to the Court’s somewhat sexier “policy-making” function.

The work is part of the Canadian Democratic Audit series edited by William Cross at Mount Allison University. This series has, in turn, produced nine works evaluating the core institutions of Canadian democracy such as legislatures, cabinets, federalism and the electoral system together with a tenth synthetic work providing some overall conclusions. Like the others, this book on the Courts utilizes three core “democratic bench-marks,” namely, public participation, inclusiveness and responsiveness, to assess effectiveness of the institution and to suggest possible improvements. In addition to considering the democratic justifiability of current judicial policy-making, a wide-range of other issues are considered, including the ease of access of different groups (e.g. women, immigrants, aboriginals) to the legal profession, systems of judicial discipline, avenues for public complaint for poor service, the practical operation of the jury system and threats to judicial independence.

The book is easy to digest and comprehend due, in part, to its well planned structure. After providing an introduction to Canada’s court system, Greene’s chapters examine, in turn, the courts in relation to public participation, inclusiveness and institutional and decision-making responsiveness criteria. Each of these chapters provides a [*680] systematic and comprehensive overview of the issues involved and ends with a helpful bullet-point list of strengths and weaknesses of the Court system in relation to the particular criteria under examination. During the course of the work, some fundamental difficulties relating to the Court’s capacity to provide a democratically acceptable service are brought to light. To take two examples, interesting analysis is provided on the reality of long delays in much of the judicial process and the extremely modest extent of redress in relation to clear judicial misbehavior, despite the creation of the Canadian Judicial Council and cognate provincial bodies from the 1970s onwards. The final chapter draws the analysis together and provides a synopsis of Greene’s various policy prescriptions. Although most of these prescriptions (and much of the overall analysis) is clearly written from a moderately liberal point of view, Greene is usually careful to cite and consider a range of other perspectives from both the left and right. Thus, although he considers that the Canadian judiciary’s policy-making has, on balance, “advanced rather than retarded Canadian democracy” (p.162), Greene also cites and assesses contrary arguments advanced by Michael Mandel, Ted Morton and Rainer Knopff, among others.

The main intended audience for this book appears to be a policy community interested in developing concrete and practical proposals for possible reform. A wider aim of the work (and the Canadian Democratic Audit in general) is also to foster a debate on these matters amongst a wider public. It is certainly the case that the work is written in a style accessible enough for this to be possible. Within a University context, this well-referenced book should appeal to anyone wishing to gain an overview of the current debates surrounding the Canadian court system. It might also be helpful in a public policy course which includes assessment of the role of the Courts in the democratic system. In this context, the list of discussion questions included at the back of the book may be particularly useful.

To a large extent the main drawbacks of the work are intimately connected with these strengths. Greene skillfully covers a great range of issues within only 183 small pages of text. However, although it is full of many interesting facts and arguments, this is clearly ultimately a work of synthesis rather than a piece of original research. Moreover, many of the issues discussed are ultimately left hanging. For example, near the beginning of chapter four, Greene cites some interesting judicial survey evidence suggesting that threats to judicial independence increased between the early 1980s and mid-1990s. By the end of the chapter, however, one feels that an explanation of these findings and its implications for judicial independence has not, in fact, been squarely addressed. To a large extent, this reality is a necessary outcome of the combined large scope and small size of the work. If either the scope or size were significantly altered, however, it is likely that appeal to the core constituency of series – the policy-making community – would be reduced. Nevertheless, a key resulting drawback for the academic community is that the [*681] work can, at best, only function as an initial starting-point for serious enquiry. Those wishing to delve more deeply into any particular issue in order to further a particular research interest will have to look elsewhere. As if to acknowledge this, Greene ends the book by providing an additional reading list pointing to primary research and in-depth analysis which have been published on the various important issues he considers.

REFERENCES:
Hiebert, Janet L. 2002. CHARTER CONFLICTS: WHAT IS PARLIAMENT'S ROLE? Montreal: McGill-Queen’s University Press.
Morton, F.L., and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY. Toronto: Broadview Press.

© Copyright 2006 by the author, David Erdos.

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THE NATIONAL COURTS’ MANDATE IN THE EUROPEAN CONSTITUTION

by Monica Claes. Oxford: Hart Publishing, 2006. 818pp. Hardback. £65.00/$130.00. ISBN 1-84113-476-7.

Reviewed by Emilian Kavalski, Department of Political Science, University of Alberta (Edmonton, Canada). Email: kavalski [at] ualberta.ca.

pp.676-678

November 1, 2006 should have been the date when the Treaty establishing a Constitution for Europe (commonly referred to as the European Constitution) would have come into force. However, its rejection by the French and Dutch voters in referenda during the early summer of 2005 probably means that this date would come and go without much fanfare and would only mark one more predicament in the process of constitutionalizing Europe. Among their many objectives, the drafters of the European Constitutional Treaty intended to streamline and simplify the legal framework and interactions among the soon-to-be twenty-seven Member States of the European Union (EU). The need for such reforms underwrites Monica Claes’ meticulous investigation of the negotiation of different standards of interpretation and construction that judges in Europe need to apply when enforcing EU law within particular national legal systems.

Her insightful exploration offers a detailed understanding of the involvement of national courts in the judicial system of the EU and on their position vis-à-vis their respective national constitutional frameworks. In this respect, Claes presents the (often controversial) experience of the national courts of the Member States in the application and enforcement of EU law. Her exploration, therefore, queries the source, scope, and limits of judicial authority in the legal framework of the EU.

As such, Claes’ book interrogates the complicated relationship between the European Court of Justice and the national courts of the Member States of the EU. Traditionally, however, this interaction has been treated from the top-down perspective of the European level (that is, the Court of Justice). Claes contends that such an approach promotes a lopsided view of the relationship between the European and national levels. Therefore, she sets about balancing the outlook and presents the story less told—a perspective from the point of view of the legal frameworks of the Member States. Acknowledging that it is impossible to draw general conclusions about such a diverse set of legal systems and traditions, the volume undertakes a comprehensive assessment of interactions between the European Court of Justice and the national courts in nine West European Member States: Belgium, Denmark, France, Germany, Ireland, Italy, Luxemburg, the Netherlands, and the United Kingdom. Although some might argue that the choice of countries confines Claes’ investigation, the claim here is that even this selection demonstrates the intricacies of the relationship between the European Court of Justice and the national courts. This point is further [*677] illustrated by reference to nearly six-hundred legal cases, which give Claes’ volume a nearly encyclopedic dimension.

In developing her assumptions, Claes relies on a narrative approach from two distinct perspectives: on the one hand, she presents the account from the point of view of EU law and the European legal framework; on the other, she relates the story from the point of view of the national courts. In order to draw a more vivid picture of the legal environment within the Member States, Claes bifurcates the second narrative into (i) “ordinary national courts” (p.15)—i.e., administrative, civil, tax, and labor courts; and (ii) constitutional courts.

Such focus takes a fresh view at the role of the national courts as enforcers of EU law. Claes seems somewhat troubled by the supremacy of the European Court of Justice and its insistence that when the tenets of the national and European systems clash, courts of the Member States should disregard their domestic constitutional rules and give preference to EU legal standards. To her mind, this calls for reconsideration of the principles of democracy and legality both within the context of Member States as well as the broader EU. Unfortunately, this proposition is not developed further, despite Claes’ shrewd elaborations on the relationship between the national and European levels in the now apparently dormant Treaty establishing a Constitution for Europe.

The development of the central theme of the book—the contentious European and national mandate of Member State courts—is structured in three steps. The first details the functions and duties of ordinary national courts as agents of EU law. Initially, Claes embarks on “legal archeology” (p.45) that provides an historical background to evolution of the dual identity of Member State courts—both as national courts, applying domestic rule and as international courts, enforcing EU law. Her survey of cases presents a disparate picture of the ability of national courts to comply with the requirements of the European Court of Justice and, at the same time, maneuver so as not to upset the domestic constitutional principles (p.382).

The second step relates the problematic experience of the constitutional courts. The controversy of this narrative stems from implications for the pattern of European integration. In particular it concerns the contested visions regarding division of competency between the EU and the Member States. As Claes asserts, the repercussions of the case law of the European Court of Justice are “less constructive and congenial” to the constitutional courts, as they undermine their function and mission to guarantee adherence to domestic rules of Member States (p.387). Thus, as she sketches a general picture of continuing resistance to supremacy of EU law on behalf of constitutional courts, Claes proclaims that it is “inconvenient, impractical and simply unfair [as well as] downright wrong” for a national court to review EU legislation (p.650). Although some readers might be taken aback by the emotion and force of such language, they should not misunderstand it as [*678] detraction from the scrupulous style of analysis of the book.

Instead, these expressions should be taken as indications of Claes’ interest in the debates on the European Constitution and the Convention on the Future of Europe. In effect, such concern constitutes the third step of her analysis. Her survey of the relationship between the national and European level of legal authority underwrites the discussions on the direction of European constitutionalism. She insists that this is not only a matter for judicial deliberations, but also a question of political will. Nevertheless, Claes urges the interlocutors of these debates to draw lessons from judicial dialogues between the national courts of Member States and the European Court of Justice.

Such an investigative three-step allows Claes to detect “moods” (p.22) in the ongoing and continually contested relationship between national and EU law. In this respect, her book provides perhaps one of the most detailed accounts of this interaction. It is expected that some readers would be disappointed by Claes’ strict subscription to the disciplinary ramifications of jurisprudence. However, even those who would prefer some discursive intersections with political science must take into account (if not admire) the consistency and circumspection with which Claes traces the twists and turns of European legal integration. Her volume, therefore, should be equally appreciated by both legal practitioners as well as scholars interested in European constitutional history, and, in particular, in the relationship between the European Court of Justice and national courts. It is anticipated that Claes’ book will remain a helpful and lasting repository for anyone studying the EU legal framework and looking for highly-informed perspectives on the experience of its institutionalization.

© Copyright 2006 by the author, Emilian Kavalski.

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THE EUROPEAN COMMUNITY, THE EUROPEAN UNION AND THE INTERNATIONAL LAW OF TREATIES

by Delano Ruben Verwey. The Hague: TMC Asser Press, 2004. 320pp. Paperback. $90.00/£50.00. ISBN: 9067041823.

Reviewed by Srini Sitaraman, Department of Government and International Relations, Clark University. Email: ssitaraman [at] clarku.edu.

pp.672-675

In the field of international relations, states are recognized to be the primary actors, and under the eyes of international law, states are said to possess legal personality to negotiate and enter into agreements and treaties with one another. However, there has been a proliferation of non-state actors, such as international organizations (IOs) and inter-governmental organizations (INGOs) that have the legal capacity to participate in treaty negotiations and also join them. In this book Delano R. Verwey analyzes the legal implications of European Community (EC) and European Union (EU) international treaty-making practice and its influence on the development of international law, particularly, the impact on the law of treaties.

The ability to enter into international treaties has traditionally been the prerogative of states. Only states are thought to possess intrinsic legal personality, which allows them to negotiate, conclude, sign, and ratify international agreements. Nevertheless, since the promulgation of the 1986 Vienna Convention on International Treaties, the ability to contract treaties is now extended to international organizations. Opinions of international legal experts widely diverge as to whether IOs possess such intrinsic legal personality and whether their international legal standing is equivalent to nation-states. Although the International Court of Justice (ICJ) has recognized the legal personality of international organizations and sees them bound by the same set of legal obligations that bind states, Verwey argues that many questions persist regarding the appropriate role and legal standing of European international organizations vis-à-vis international law. This legal conundrum aside, IO participation in treaty-making and treaty-acceptance process as legal co-equals is growing.

Over the last two decades, EC and EU have entered into a large number of bilateral and multilateral treaties. In some instances, the Community and the Union have acted as joint contracting parties along with the Member States, but in some cases they have acted as the sole representative while entering into international treaties with other states and international organizations. In this book, Verwey examines the international treaty-making powers of EC, EU, and its twenty-five Member States comprehensively. He finds that the international treaty making competence of these diverse, but legally entwined entities to be vexing from the [*673] international as well as the European legal perspective.

The interesting international legal conundrum that Verwey identifies is that the EU Member States have not lost their sovereignty or their legal personality, which affords them the right to participate in international legal regimes. However, at the same time, EU states have transferred some amount of sovereignty to the European Union. This means that the EU is empowered to sign treaties on behalf of its members, while the Member States possess all the privileges of statehood, including negotiating and signing international conventions. This issue raises questions about internal political arrangements and external treaty-making competency of the EU and EC. What are the specific policy areas that EU and EC are competent to enter into international agreements and what are the areas that are exclusively the domain of Member States? Verwey does not provide a clear and conclusive answer to this question. But, he points out that internal jurisdiction over policy domains and external treaty-making are determined by internal political arrangements agreed upon by EU, EC, and its Member States.

Verwey wonders whether the current international treaty law, governed by the 1969 and 1986 Vienna Convention on Law of Treaties, provide adequate guarantees to cover contractual relations among EU, EC, its Member States, and the third parties, which may involve states or other international organizations. His principal concern is that crosscutting international roles played by EC, EU, and the Member States not only produce legal complexity, but it also sows the seeds of doubt among contracting third parties about the Member States’ legal obligations and raises serious questions about the external treaty-powers of EC and EU. In addition, this issue of overlapping sovereignty raises questions about the ultimate repository of legal responsibility for international treaty obligations.

Principally, Verwey is concerned that contracting third parties may not enter into treaty relations with EU states because of the worry that it would be difficult to hold a Member State responsible for its legitimate international obligations because of legal complexities surrounding the external competency of European international organizations. This concern is also heightened by the fact that international treaty law governed by the two Vienna Conventions does not adequately correspond to the unique character of the European Union and the European Community. International legal relations entered into by the EU and EC will impact the development of treaty law. However, the concern over ambiguity and uncertainty regarding external treaty-making competence has not stopped non-EU states from signing bilateral or multilateral treaties with EC, EU, and its Member States. This is probably because there is sufficient confidence among the contracting third parties that the European international organizations and their members will not renege on agreements. Besides, as Verwey observes, states that enter into treaty relations with EU, EC, and its Member States can always include [*674] safeguard clauses to protect themselves. Hence, Verwey’s concerns are mostly theoretical, and it does not seem to pose any immediate problems to the conduct of day-to-day business and administration of policy matters. In addition, one also wonders whether the author overemphasizes the ambiguity and uncertainty generated by the unique legal charter of the EU and EC. After all, unlike municipal law, international legal relations are always fraught with legal ambiguities and uncertainties.

Verwey reveals the inadequacy of present-day international laws to comprehend fully the unique legal personality of EU and EC, and he concludes with a set of proposals for amending international law of treaties to accommodate the complicated legal relations produced by the emergence of new sovereign entities.

Analysis in the book is divided into two parts, including an introductory chapter. Part One contains two chapters that focus on the external treaty-making competence of EU and EC. Part Two consists of three chapters that investigate the substantive elements of international treaty law and its implication for EU and EC. Primarily, Part Two focuses on negotiation and conclusion of treaties, entry into force, application, termination, suspension, treaty interpretation, dispute settlements, and finally the effects of international agreements on the EU Member States. These chapters contain detailed analysis of treaty law issues, such as accession, exchange of instruments, arbitration, invalidation, and termination.

This book is clearly not intended for the lay reader. The primary audience will be advanced legal experts who are thoroughly familiar with complexities and the nitty-gritty of international laws, and the internal structure of EU and EC. Verwey focuses his analysis on European international legal relations, but he refrains from providing any political or policy context. The lack of substantive policy context and thick legal description makes the book at times hard to follow. But, most legal texts are not meant to be easily accessible or engaging; they aim to be objective, informative, and analytical. In this regard Verwey’s book succeeds.

Some of the contestable parts of the book are in the final recommendations. Verwey suggests that there are two ways of addressing the uncertainty and legal ambiguity generated by the emergence of sui generis IOs such as EU and EC. His first proposal is to alter the internal framework of EU and EC, and the second suggestion is to modify the international law of treaties to overcome the ambiguity and uncertainty in the external treaty-making competency produced by the emergence of multiple European institutions with international legal personality. However, he immediately dismisses the probability of altering the internal framework of EU and EC because it would hurt the sanctity of the EU integration process. Instead, he suggests that international treaty law should be modified to accommodate the unique roles of EU and EC. Verwey does concede that the possibility of international community renegotiating the Vienna Convention on Law of Treaties just to accommodate EU [*675] and EC is remote. Nevertheless, he goes on to propose a set of articles for inclusion in a modified law of treaties. There is no question that the international law of treaties is definitely in need of modification to welcome new developments brought about by the increased diversity of international organizations. However, one is not sure whether such modification should be exclusively motivated just to accommodate the peculiar legal ambiguities of EU and EC.

The superior solution, to which Verwey alludes, might actually lie in the ratification of the European Union Constitution by all its Member States, which would abolish EU and EC and create a supranational federal state in its place. It would possess all the trappings of a state such as flags, currency, state symbols, and a chief executive. This new EU Constitution would retain primacy over the laws and the national constitutions of its Member States, and it would enable the European Union to operate as the sole representative amidst the community of nation-states. Importantly, the EU Constitution would permanently end questions about its external treaty-making competency and international legal personality because it would arrogate all the treaty-making powers to itself. The passage of the EU Constitution was knocked of course because of negative referendums in France and Netherlands. However, presently 15 of the 25 Member States have ratified the EC Constitution. It is very likely that the EU Constitution will achieve fruition in the near future with the support of major actors such as France, Netherlands, and Germany. Presumably, it would also end the uncertainty and legal ambiguity generated by overlapping functions of EU, EC, and its Member States.

© Copyright 2006 by the author, Srini Sitaraman.

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LAW AND SACRIFICE: TOWARDS A POST-APARTHEID THEORY OF LAW

by Johan van der Walt. London: Birkbeck Law Press, 2005. 320pp. Cloth. £60.00/$198.00. ISBN: 1859419860. Paper. £23.50/$78.00. ISBN: 1859419860.

Reviewed by Michael J. Struett, School of Public and International Affairs, North Carolina State University. E-mail: mjstruet [at] ncsu.edu.

pp.668-671

Johan van der Walt argues, in LAW AND SACRIFICE, for an understanding of law as an arbitrator amongst a plurality of interests, some of which can be protected, and some of which must be set aside in any given judicial ruling. But Van der Walt would have us understand law in such a way that the legitimacy of claims by both the winner of the suit, and the loser can be understood as having merit. Thus a decision cannot be said to render justice, but only to offer a ruling about how one just cause will be satisfied in a given case, while another (perhaps equally just) claim must go unfilled because it conflicts with the winner today. He makes a normative case that our understanding of law and its social operation should explicitly recognize the sacrifice inherent in any definitive action by the democratic state. Although the idea is certainly intriguing, one wonders whether losers of suits will feel particularly better or different about a judicial outcome if their loss is described as a justifiable sacrifice, rather than an imposition of justice. Van der Walt also seems to suggest that the new South African constitution contains provisions that make it particularly ripe for its judges to develop a “post-apartheid understanding of law” that would reflect this understanding of law as sacrifice. Ultimately the book does not compellingly deliver on this promise to analyze South Africa’s constitution in those terms.

At the risk of betraying my own conservative modern prejudices, I must complain that Van der Walt does not do all that he might in order to express his ideas with clarity and brevity. Like many who cite Derrida (1990), Van der Walt seems to have a knack for converting relatively simple ideas into long paragraphs with awkward sentence structures, vague pronoun references, and obscure scholarly and literary references that seem intended to hide his own meaning rather than to make it clear. This is in my view unfortunate, as it almost certainly limits the number of readers who will have the patience to persevere and form their own opinions about some of Van der Walt’s more fascinating insights.

The connections between different sections of the book are not always as clear as they might be. I discuss a few in turn.

Chapter One introduces the ultimately unfulfilled promise of the book, namely to demonstrate that the revolutionary provisions of South Africa’s 1996 constitution provide an empirical ground in which something like the normative understanding of law as sacrifice that van der Walt advocates might actually develop. South Africa’s constitution [*669] contains an interesting provision in Section 8 (2) that binds private natural and legal persons to comply with the various provisions of the Bill of Rights. This section was included because of the recognition that private wealth and power have the potential to allow a perpetuation of the injustices of the apartheid era. Van der Walt argues that, while early constitutional jurisprudence seemed to limit the transformative potential of this section of the constitution, more recent decisions have reopened the door. But after the initial chapter, van der Walt returns to this interesting empirical ground only rarely, and focuses instead on the development of his own, still embryonic, normative legal theory.

Chapter Four offers an interesting discussion of death penalty cases in South Africa. Van der Walt begins by assuring us that he intends to follow with rigorous jurisprudential analysis, and not escape that through poetic license. Still, the premise that the analysis in the chapter is demanded by an at first unnamed poet [the poet of the 20th century van der Walt suggests?] may discourage rather than encourage some readers. The death penalty jurisprudence at first seems an odd topic for the chapter, since the early chapters seem to suggest that the book would focus on the potential in South Africa’s constitution to guarantee the basic civil rights of individuals against the abuse of private power, over and above the power of the state. Given that perspective, it seems odd to focus on a topic that so clearly involves the power of the traditional state. Nevertheless, the actual analysis of South Africa’s post apartheid legal decisions on the death penalty is intriguing. Although I am not an expert in South African constitutional law, I take it from van der Walt that the decision in STATE v. MAKWANYANE held that the death penalty is illegal because of the ban in the 1993 Constitution on cruel and unusual punishment.

Van der Walt highlights that the consensus amongst the justices on this point obscured a wide range of different legal reasons in the various concurring opinions, particularly on the issue of whether capital punishment inherently violates the right to life and the right to dignity. Van der Walt’s analysis successfully shows the tenuous grounds for the majority’s conclusion, because it rests on the finding that capital punishment is cruel because it is arbitrary, and unnecessary because it provides no greater deterrent than life-time imprisonment. He notes that a future court would only need to find that death is a greater deterrent than prison in order to reinstate the death penalty in South Africa. In the later half of the chapter, van der Walt brings to bear his horizontal understanding of the application of the law, where the exercise of the death penalty by the state must be understood simply as one interest, (the family and friends of the victim) taking retribution against another interest, (the person convicted of a capital crime). Here van der Walt’s understanding of the law as sacrifice does have some normative analytical payoff. If the constitutional state is simply arbitrating between the plurality of conflicting interests in a democratic society, and it aims to take seriously the [*670] sacrifice of the losing side in any decision alongside the interest of the winner, then capital punishment is exposed as morally abhorrent because it leaves no space to recognize the sacrifice of the condemned. Thus, it is the finality of the death penalty that makes it an intriguing subject for analysis using van der Walt’s horizontal approach to a post-Apartheid Theory of Law.

In Chapter Five, van der Walt develops the theoretical and empirical case that Apartheid-era law was based on a conceptualization of pluralism that actually destroyed plurality by removing 80 percent of society from legal status in the vast majority of the territory of the country. Here, van der Walt engages with Agamben’s (1998) HOMER SACER to develop his own understanding of law as sacrifice. The problem with apartheid law, was the unacknowledged sacrifice of a majority of South Africa’s peoples. Van der Walt relates this in interesting ways to modern political theory and the conceptual transition from a state of nature to a contractually based system of private property rights, themes he developed initially in Chapter Three.

In Chapter Six, van der Walt reviews the fundamental contradiction of self-government, that if all are to govern themselves in liberty, they will inevitably tend to impede each other’s liberty. The imposition of coercion by the democratic constitutional states, judicially or otherwise, inherently means that citizen’s free-wills are in conflict. He begins with a lengthy summary of Duncan Kennedy’s discussion of this classical issue; whom Van der Walt sees as articulating, renouncing, and ultimately resuscitating the fundamental contradiction that our relations with others in society are ultimately incompatible with our own freedom (Kennedy 1997). He continues by reviewing the positions of Frank Michelman, John Rawls, Hannah Arendt, Jurgen Habermas, Carl Schmitt, and Immanual Kant, amongst others, on this issue. All of this serves to establish van der Walt’s premise that in any judicial decision, there is a sacrifice of one interest at the expense of another, thus destroying pluralism. Therefore, the post-apartheid theory of law should treat each judicial decision not as imposing justice, but as deciding in favor of one legitimate interest while sacrificing another legitimate interest for the time being.

Chapter Seven takes a decidedly existential turn, analyzing the rule of law and judicial decision-making as being analogous (or more exactly, a subset of) the problem of phenomenology that Heidegger (1978) confronted in BEING AND TIME. This line of analysis builds on the thesis in Kennedy’s work that any judge confronts a legal regime which can be made to justify almost any outcome, so the judge is free to decide based on his or her personal political preferences. The clearest statement of the author’s thesis in this chapter comes on p. 219, where he writes:

[T]he argument regarding the presence of a non-presence (which not simple absence, but a spectral if not eerie counter-mode of presence, as will become clear presently) at the heart of present meaning would be the heart of a post-apartheid theory of law. Sovereign [*671] attempts to lay down or represent the law as a simple and indivisible present moment of legal meaning is the essence of the expulsion that simply dismisses a claim to justice in favour of another, instead of setting it aside so as to keep it alongside the one favoured for the moment.

Thus van der Walt would have us understand law as being an admiration of the ruins of the pluralities of the various interests whose conflicts are settled by judicial action, even while we recognize that any present case could have been decided the other way.

Finally in Chapter Eight, van der Walt sets out to answer the question, “To what extent can post-apartheid adjudication really claim to restore plurality from its ruins, that is, from the memories and anticipations of plurality?” His answer seems to be to view judicial decisions as a coin toss, and to celebrate the indeterminacy of the time while the coin is in the air. Only then, van der Walt concludes, is reconciliation possible in the time before we know who will be required to sacrifice as a result of a particular judicial decision.


REFERENCES:
Agamben, Giorgio. 1998. HOMER SACER: SOVEREIGN POWER AND BARE LIFE. Trans. By D. Heller-Roazen. Stanford: Stanford University Press.

Derrida, Jacques. 1990. “Force of Law: The Mystical Foundation of Authority.” 11 CARDOZO LAW REVIEW 920-1045.

Heidegger, Martin. 1978. BEING AND TIME. Trans. by John Macquarrie and Edward Robinson. Oxford: Basil Blackwell. Original title Sein und Zeit (1927).

Kennedy, Duncan. 1997. A CRITIQUE OF AJUDICATION. Cambridge, MA: Harvard University Press.

CASE REFERENCE:
STATE v. MAKWANYANE (1995) 3 SA 391 (CC).

© Copyright 2006 by the author, Michael J. Struett.

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APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD

by Kate Malleson and Peter H. Russell (eds). Toronto: University of Toronto Press, 2006. 450pp. Cloth. ₤48.00/$90.00. ISBN: 0802090532. Paper. ₤22.00/$45.00. ISBN: 0802093817.

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

pp.664-667

In their book, APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD, editors Kate Malleson and Peter Russell provide a thorough overview of judicial appointment systems in established, western democratic systems (Scotland, England and Wales, Canada, the United States, New Zealand, Australia, the Netherlands, Italy, France and Germany), international courts, and emerging democracies as well as transitional states (Israel, Egypt, South Africa, Namibia, Zimbabwe, Japan and Southeast Asia, Russia, and China). As the book’s title implies, the method of judicial appointment employed in a country in which there is an active judiciary, especially one with the power of judicial review, is often subject to greater scrutiny than is the case in systems in which the judiciary is more passive and lacks the authority of reviewing statutes or actions of a powerful, autocratic executive or even a popularly elected legislature. What these many (19) accounts of judicial appointment systems around the world demonstrate is that certain issues are prominent regardless of the appointment method used, and that a country’s culture, experiences, and institutional political structure influence the mechanisms of judicial appointment and its citizens’ assessments of the judiciary’s legitimacy.

In her introductory chapter, Kate Malleson lays out several important questions prominent in the judicial appointment literature. These include the tension between judicial independence and accountability, the desire to enhance diversity (by any number of definitions) in the judiciary, and the importance of merit criteria in the selection process. Malleson emphasizes that countries at differing stages of democratic development and with judiciaries that are more or less well established have a different set of concerns in terms of their judicial appointment system, and these concerns cannot be divorced from the country’s culture, history, and institutional structure.

Particularly interesting in the chapters that follow is the varying emphasis on the themes laid out in the introductory chapter and the way these issues are addressed under different institutional structures. For example, the attention of those studying judicial appointments in established democracies such as the United States, Canada, and Australia is more likely to be focused on questions of diversity in terms of the degree to which the judiciary is perceived to be representative of the population. This may be seen as particularly important in [*665] situations in which the judiciary is considered activist, willing to overturn the actions of a popularly elected legislative and/or executive branch. However, in cases where the judiciary is part of a developing democracy, perhaps one emerging from colonial rule, such as South Africa and Zimbabwe, attention may be directed at the more basic issue of judicial independence in order to attain institutional legitimacy. This is not to say that these countries are not also concerned with developing a judiciary that is representative of their populations, as is certainly important in post-apartheid systems, but the basic question of whether an independent judiciary can exist is prominent in debate.

As in any edited volume, perhaps particularly one of this length and breadth, the editors face the difficult task of synthesizing a variety of perspectives into a coherent and logically progressing whole. Although there are a few cases in which the chapters do not seem to flow together as well as the reader might like, the editors have largely done a good job of keeping the authors focused on the question at hand. The articles might have been more integrated had all of the authors responded to one particular question or concern about the judicial appointment process. However, given that the volume covered such a wide variety of judicial appointment systems at such different stages of development or revision, focusing more narrowly on a particular question would have been difficult.

As mentioned above, diversifying the judiciary is often an important concern in making judicial appointments. In almost all systems considered in the book, there has been or is currently an effort to increase gender and/or racial diversity on the bench. Even those systems in which the primary concerns center upon judicial independence, efforts aimed at increasing diversity seem to be present. However, in addition to gender and racial diversity, some systems are also concerned with addressing whether the judiciary is diverse with respect to professional background, a topic of discussion in the most recent United States Supreme Court appointments. On this point there is obvious difference between appointment systems relying on the European model of a career judiciary, as in France, and systems based on the US model of appointing judges from a variety of law-related career paths, or a combination, as in the Netherlands.

In their analyses, the contributors do a good job of consistently tying the experiences of each country to their present problems in achieving diversity on the bench. For example, although there is concern with increasing racial diversity across judicial appointment systems, many have also had a history of severe discrimination against women. The authors consistently refer to a “trickle-up” approach to gender diversity on the bench. This theory asserts that as society becomes more inclusive and women make up a larger percentage of those in careers from which judges are typically appointed, or matriculate through legal programs in countries with a career judiciary, we will naturally see more gender equity on the courts. However, as several contributors note, [*666] even as the pool of women available for appointment increases, we do not consistently see a rise in their representation on the bench. And, in some systems, attention is not directed so much at gender and racial parity as it is other forms of diversity. For example, in international courts as well as federal and provincial systems, contributors stress that geographic diversity and maintaining representation of member countries and/or states is often paramount.

Concerns about increasing diversity while also making appointments based on merit get greater attention in some, but it is an issue that seems to carry across judicial appointment systems in democratized countries as well as transitional states and emerging democracies. Underlying the concern over qualifications is the fact that merit itself is a culturally bound concept, and the way in which any country defines merit has important implications for appointments. Although the definition of “merit” is cultural and may vary even within a country depending on whether an appointment is being made to a trial or constitutional court, the contributing authors note that, overwhelmingly, those who make judicial appointment decisions try to ensure that their judges are qualified. They do this through a variety of methods, including competitive exams and specialized judicial training as in Spain, Germany and France, (or solely by competitive exams in Italy), or by mandating substantial prior legal experience, as in Japan. Should the exams or training programs be skewed against women or minorities, of course, these definitional criteria may well result in continuing low gender diversity on the bench.

One clear trend that emerges across the contributors’ discussions is the use of judicial appointment commissions that either recommend candidates to the executive or make what amount to binding decisions on judicial appointments. F.L. Morton, in his chapter on the Canadian judicial appointment system, does an especially good job in dealing with the question of whether this reduces the role of politics in the appointment process. Morton quotes V.O. Key’s “iron rule of politics,” that “where power rests, there influence will be brought to bear.” The theory is particularly appropriate in relation to the judicial appointment commission which, as editor Peter Russell notes in the concluding chapter, is the most frequently used approach by countries revising their judicial appointment systems. He presents a strong argument that, rather than eliminating politics, the use of such commissions may simply shift the points where politics can enter the process from the appointment of judges, to the appointment of commissioners.

Another possibility with such nominating commissions is that the locus of appointment power may appear to have shifted, but in fact still remains with a single executive who can control the process without institutional check on his authority. Derek Matyszak’s discussion regarding appointment by the Judicial Services Commission in Zimbabwe provides a good illustration of this outcome. In Zimbabwe, the president appoints Supreme and High [*667] Court judges after consulting with the Judicial Services Commission and must inform Parliament if his appointment is not in line with the Commission’s recommendation. Although this structure implies that the Commission’s recommendations are taken seriously and there is outside input into the process, the president appoints up to four of the six Commission members either directly or by virtue of the member’s executively appointed position in the administration (for example the attorney general). Thus, the use of such nominating commissions is not necessarily a solution to the unfettered appointment power of the executive.

Overall this book provides a comprehensive overview of judicial appointment systems and the typical issues confronted by countries attempting to reform their methods of judicial selection around the world. The book’s coverage of a wide variety of judicial systems is a welcome addition to the literature on judicial appointments. Not only do the editors compile chapters on civil and common law systems, but they also include an analysis of appointments to increasingly important international courts, career and elected judicial systems, and those with and without the important power of judicial review. The chapters generally present a short summary of the judicial system within each country, and the themes presented would provide for ample discussion in either graduate or undergraduate courses. In short, Malleson’s and Russell’s book will be an excellent addition to courses on comparative judicial systems, a topic that is rightly gaining attention among judicial politics scholars.

© Copyright 2006 by the author, Christine L. Nemacheck.

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ON THE HISTORY OF THE IDEA OF LAW

by Shirley Robin Letwin. (Edited by Noel B. Reynolds.) Cambridge: Cambridge University Press, 2005. 362 pp. $80.00/£48.00. Hardcover. ISBN: 0521854237. ebook format. $64.00. ISBN: 0511138210.

Reviewed by Beau Breslin, Department of Government, Skidmore College. Email: bbreslin [at] skidmore.edu

More than thirteen years have passed since Shirley Robin Letwin died after an extended illness. Over that period, a great many students of history, philosophy, politics, and law, have come to appreciate her unique scholarly talents. Educated by F.A. Hayek at the University of Chicago, Letwin spent most of her professional career as an independent scholar pursuing answers to those philosophical and historical questions that most puzzled her. She enjoyed such an impressive career that a number of contemporaries insist that hers was a key voice in the “resurgence of conservative doctrine and thought in the second half of the twentieth century.” When she died, she left behind a rich legacy of curiosity, intellectualism, criticism, conservatism, and, above all else, wisdom.

She also left behind an unfinished manuscript. We are told that a good portion of the decade prior to her death was spent writing a lengthy volume on the vast subject of law. What intrigued her were “not the hundreds of lesser issues that occupy the pages of the legal philosophy journals . . . but the most general questions that have motivated philosophers in every age” (pp.vii-viii). Impressively edited by Brigham Young University scholar Noel B. Reynolds, that incomplete manuscript is now ON THE HISTORY OF THE IDEA OF LAW.

In the book, Letwin attempts to accomplish two parallel goals. First, as the title suggests, she traces the history of the idea of law, beginning with the conception sketched by the Ancients and concluding with a description of the subject defended by such twentieth century jurisprudential scholars as Ronald Dworkin and Michael Oakeshott. In between, Letwin describes the evolution of the idea of law through the writings of the major medieval, modern, and post-modern thinkers. She announces right away that her “object is to relate not what the law has been at any time or place, but how it has been understood and how that understanding has changed” (p.5).

Letwin’s second goal is a bit more subtle. She is, in the end, a critic of certain contemporary scholars of the law and so her less obvious objective is to derail the intellectual credibility of such legal philosophers as Jerome Frank, Roberto Unger, Catherine McKinnon, and Ronald Dworkin. Reynolds notes in his preface that “while the book explains and criticizes the legal theories of the most important philosophers from Plato to the present, it has at its primary target those theories of the twentieth century which in one way or another reject the [*661] classical understanding of law as illusory, and treat the idea of rule of law as a conservative mantra or a misnomer for rights” (p.viii). On the first aim of the book, the author succeeds admirably; on the second, the jury is still out.

The book is divided into six parts and sixteen chapters, all following a more or less chronological sequence. In Part I, Letwin describes the jurisprudence of the Ancients. The first chapter is devoted to a discussion of Plato, while the second focuses on Aristotle’s legal philosophy, and the third, Cicero’s. In each (and in all subsequent chapters), she sets out to describe the particulars of each philosopher’s legal theory while also attempting to show how the conception of law has changed through time. Originally, she indicates, an understanding of law was “anchored” to the “governing principles of the universe.” The relation of the “cosmic order” to human reason, for example, influences Plato’s jurisprudence. In her words, “the underlying thought common to . . . Plato’s view[] is that the idea of law is an answer to the fundamental difficulty of the human condition: how to bring some fixity into a world from which change and multiplicity cannot be eradicated” (p.19). This, Letwin contends, renders Plato’s conception of the law “highly ambiguous.” If reason is the governing principle that organizes a fixed universe, it can not also be the human characteristic that informs the law.

A related confusion plagues Aristotle’s view of law. Letwin claims that Aristotle does not resolve some of the inconsistencies evident in Plato’s description of law. In fact, she claims Aristotle “produced a sharper version of the tension between Plato’s two senses of justice” (p.41). And Cicero is no better. The author consistently refers to Cicero’s writings on the topic as “simplistic” and underdeveloped.

In Part II, Letwin turns to legal theorists of the Christian faith. The thread running through the work of St. Augustine and St. Thomas Aquinas, she says, is a commitment to the principles of peace and human perfectibility, and the existence of natural law as a constituting force. She is comparatively underwhelmed with the conception of law announced by Augustine. He, like Cicero, constructs a rather simplistic version, says Letwin. Aquinas, on the other hand, offers the most comprehensive and sophisticated understanding of law since Aristotle. She insists that Aquinas actually wrestled with the same internal tensions that paralyzed Aristotle’s and Plato’s conception of law. “The Thomistic account of law,” she writes, “is a powerful and explicit attempt to resolve the Aristotelian tension between law as the cement of society (something to be obeyed because it is law) and law as a moral absolute (something to be obeyed because it is an expression of eternal verities)” (p.86).

Beginning with the view of law defended by Hobbes in the seventeenth century, Letwin organizes Part III around what she describes as the “modern” conception. She insists that the transition from earlier definitions of law to the modern one represents an important historical moment in the entire [*662] debate. Hobbes and his descendants, she says, deliberately break with the Ancients by expanding the conception of law beyond the comparatively simple definitions of the past. Take Locke, for instance. He “identifies law for the first time with an instrument for serving a productive enterprise and achieving a given unitary end” (p.134). He gives law a utilitarian edge, in other words. Similarly, Jeremy Bentham’s “command theory” visualized law not as a reflection of the ordered universe, but as the expression of power. For Letwin, this marks a critical turning point in our understanding of law. In fact, she claims that Bentham’s association with the positivist theory of law (she says that he is often described as the “father of positivist jurisprudence”) severely undervalues his overall contribution to moving the conception of law in a new direction.

Part IV builds on a definition of law, first developed in the modern era, which rests on a firm commitment to stable, non-instrumental rules. Even here, Letwin is deeply skeptical. About H.L.A. Hart’s opinion that law’s validity is tied directly to the authority of the promulgator, and that following a legal rule may be obligatory even if one finds the principle at its core morally reprehensible, Letwin says “what is missing from Hart’s account is an account of why distinguishing law’s authority from its justice follows from recognizing why the rule of law is a desirable or just institution” (p.217).

All of this is a precursor to the real battle she intends to wage against several contemporary legal philosophers. The Marxist, Realist, Feminist, and Critical Legal Studies schools are the first to experience her pointed criticism. According to Letwin, these schools of thought share one glaring feature in common: they all “repudiate the idea of law;” they deny the existence of law as a body separate from the institutions that give it meaning and force. Still, despite the time Letwin devotes to condemning the major jurisprudential movements of the twentieth century, it is Ronald Dworkin who suffers her sharpest rebuke. In Letwin’s estimation, Dworkin’s conception of the law is really just a disguise for a particular political agenda that seeks to use law as an “instrument for redistributing resources so as to secure equality” (p.303). Dworkin confuses law and politics, says Letwin, and as a result creates a conception of law that subordinates individual liberty in favor of radical egalitarianism. Letwin accuses Dworkin of discounting the importance of fixed procedures in favor of “achieving certain results.” It is a wicked condemnation.

Fortunately for Letwin, Michael Oakeshott is there to save the modern idea of law. Letwin insists that Oakeshot discovers “a new kind of anchor for [the] system of legal rules” that was mostly renunciated under the modern jurisprudential paradigm. Describing Oakeshott’s legal philosophy as a “skeptical jurisprudence,” she argues that he fundamentally alters the way we think about law by offering “a radical redefinition of reason” (p.308). Oakeshott is unique because he has, at once, succeeded to break with the Ancient view that law is related to the [*663] order of the universe while also refusing to succumb to the modern notion that man is simply a slave to his passions. His jurisprudence lies somewhere in between. What he manages, according to Letwin, is an admirable conception of law that values individualism without relegating political governance to disorder or anarchy.

In general, the book is impressive. Letwin is at her best when explaining the historical progression of the idea of law. Her principal objective is achieved primarily because she is so careful to elucidate faithfully the jurisprudence of many diverse thinkers. That is not an easy task. The real strength of the book lies in the author’s ability to explain the many different threads that run through more than two millennia of philosophical debate. Her focus on questions related to the development of the idea of human reason, for example, nicely complements her broader agenda. For students of the history of law, the book is invaluable.

ON THE HISTORY OF THE IDEA OF LAW is far less valuable, however, as a discourse on the vices of twentieth century jurisprudence. It is not so much that Letwin misunderstands the legal positions of scholars such as Roberto Unger and (more critically) Ronald Dworkin. Rather, the major problem with the work is that her project remains, in a sense, incomplete. The secondary mission of the project—to take aim at the legal theories of the twentieth century “which in one way or another reject the classical understanding of law as illusory, and treat the idea of rule of law as a conservative mantra or a misnomer for rights”—is less successful precisely because it is now somewhat outdated. Even Reynolds acknowledges that the thoughts of the most recent theorists are still maturing, and that Letwin’s analysis represents merely a snapshot, a critique that, for obvious reasons, stops short of engaging the fully developed arguments of these thinkers. The entire analysis of Dworkin’s legal theory, for instance, considers only his writings prior to 1985—important work, to be sure, but not representative of his complete theory. And while it may be inappropriate to point out a flaw that the author had no ability to correct, the book still suffers from it. Once again, the profound effect of losing such a gifted intellect is exposed.

© Copyright 2006 by the author, Beau Breslin.

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THE LAW AND ECONOMICS OF CYBERSECURITY

by Mark F. Grady and Francesco Parisi (eds.). Cambridge and New York: Cambridge University Press, 2006. 328pp. Hardback $75.00/£45.00. ISBN: 0-521-85527-6. e-book format. $60.00. ISBN: 051113830X.

Reviewed by Thomas H. Koenig, Professor and Chair, Department of Sociology and Anthropology, Northeastern University. Email: T.Koenig[at]neu.edu

pp.657-659

In this edited collection, eleven leading law and economics scholars discuss the most efficient methods of defending the integrity of the information superhighway. The World Wide Web provides a rapidly expanding venue for wrongdoers who wish to intercept, distort or disrupt information for fun (hackers and cybervandals), for profit (scammers, extortionists and rivals) or in order to create societal disorder (terrorists and anarchists). Protecting Internet security is difficult because the cost of launching an on-line attack is generally very low and the perpetrator runs little risk of punishment. Laissez faire solutions have proven to be inadequate. The authors recommend enhanced government initiatives, collective industry action and/or strengthened tort remedies to augment the current efforts of public and private entities.

These eight essays, most of which are extensions of papers originally presented at George Mason University’s June 2004 Conference on the Law and Economics of Cybersecurity, represent some of the most advanced thinking about solutions to this pressing social quandary. Each paper is a tightly written, theoretically sophisticated exploration of the costs and benefits of various approaches to on-line security. The articles assume a basic familiarity with the core concepts of law and economics, game theory, systems theory and at least a rudimentary understanding of the technology that forms the backbone of the Internet.

Readers who are uncomfortable with the vocabulary of law and economics may find this book slow going, but those with at least an elementary grounding in the fundamentals of this literature will appreciate the authors’ direct and elegant approach to complex issues. Bruce H. Kobayashi of George Mason University, for example, tackles a possible market failure that occurs because “private security goods may serve to divert crime from protected to unprotected assets and that as a result equilibrium expenditures may exceed socially optimal levels” (p.14). Kobayashi notes that “[i]f security goods are collective goods, then individuals or firms that invest in information and other public security goods will not be able to exclude others from using them, resulting in an incentive to free-ride” (p.21). Kobayashi concludes that a promising approach would be for “the government [to] facilitate the protection of [security] information through the creation and enforcement of property rights to information” (p.27).

Law professor Peter W. Swire of Ohio State University presents an intriguing [*658] discussion of whether disclosure of security breaches will help or hurt defenders. “The open source approach makes three assumptions: (1) disclosure will offer little or no help to attackers; (2) disclosure will tend to upgrade the design of defenses; and (3) disclosure will spread effective defenses to third parties” (p.31). In sharp contrast to most military operations, a company’s on-line defenses can be probed repeatedly without expending significant resources, so the advantages of alerting others to attempted incursions may be greater than the cost of letting the cybercriminal gain some information about the nature of the existing defenses.

Yochai Benkler of Yale Law School argues against the construction of impregnable cyberfortresses because the value of the Internet lies in its global accessibility. The proper approach, in his opinion, is to focus on insuring the survivability of critical infrastructure against attack, failure or accident rather than to deny access to an enemy or competitor. A network that is redundant, topographically diverse, and capable of self-configuring can be easily penetrated but is unlikely to be destroyed because of its self-healing properties. The peer-to-peer file sharing networks that are currently frustrating the music industry’s efforts to protect their intellectual property from misappropriation provide a possible model for designing a highly survivable system.

Randal Picker (University of Chicago Law School) disputes the “monoculture” argument; that more diverse software and operating systems should be employed to make the Internet less vulnerable to cascading failure. Picker argues that the great benefits that arise from a homogenous, densely connected World Wide Web outweigh the risks that result from technological uniformity. E-commerce is totally dependent on rapid and reliable access, which may be undermined by excessive defensive measures. Picker’s solution is to separate truly critical infrastructure from the public network, while continuing to allow most information to flow freely. He also advocates increasing liability for the production of inadequately tested software that proves to be excessively susceptible to exploitation by cybercriminals. However, Picker also recognizes that there are societal benefits to the early release of computer programs that can be improved after their vulnerabilities are revealed by real world exposure to hackers.

Amitai Aviram (Florida State University) advocates the development of private legal systems (PLSs) that can initiate and enforce norms of good on-line behavior. Public subsidies may be necessary to provide PLSs with the incentives and resources necessary to perform this function. Aviram warns, however, that granting excessive benefits to members of PLSs may undermine the dynamism of the free market.

Neal Katyal (Georgetown University Law School) focuses on the harm that cybercrime imposes on communities rather than the price paid by the individual victim. An aggressive approach to cybercrime is needed because insecurity on the Internet undermines the public’s trust and [*659] willingness to use this valuable resource. Katyal observes that “[g]overnments write laws against computer crime, and enforce them, not only because crime would otherwise spiral, but also because they fear the way in which private actors would structure their interactions without the government backbone of security” (p.215).

Doug Lichtman and Eric Posner (University of Chicago Law School) argue for imposing liability on Internet Service Providers (ISPs) in order to create stronger incentives to develop procedures for blocking malicious code. The Communications Decency Act (CDA), which absolves ISPs of liability, mistakenly departs from common law tort principles of responsibility for negligently enabling the misdeeds of third parties. Without the legal shield provided by the CDA, ISPs would become more proactive in identifying, blocking and helping to prosecute on-line wrongdoers.

Tuft University’s Joel Trachtman reviews a number of strategies for countering global cyberterrorism, raising such issues as how to update the traditional legal concepts of territoriality and jurisdiction in order to deal with misdeeds in cyberspace. International harmonization agreements will be difficult to implement because diverse regimes have varied interests, resources, and ideologies. Trachtman turns to game theory and existing forms of coordination to suggest ways to develop more effective cross-national responses. Side payments to third world nations may be necessary, for example, because technologically backward regions have fewer resources and less to fear from cyberspace attacks.

This book is of enormous value for designers of cybersecurity systems and for legal experts, both of whom must carefully balance security concerns against the many economic and societal benefits of a seamless Web. All of the contributors do an excellent job of weighing the economic advantages of interconnectivity against society’s interest in blocking undesirable on-line activities. Law and economics scholars and game theorists will particularly appreciate the adroit extension of these fields into the dilemmas of cybersecurity. Anyone looking for a quick read, however, is likely to be disappointed. This volume contains none of the gripping accounts of chasing down cybercriminals and on-line terrorists that fill the popular literature.

© Copyright 2006 by the author, Thomas H. Koenig.

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TAKING WRONGS SERIOUSLY: APOLOGIES AND RECONCILIATION

by Elazar Barkan and Alexander Karn (eds). Stanford: Stanford University Press, 2006. 352pp. Cloth. $65.00. ISBN: 0804752249. Paper. $24.95. ISBN: 0804752257.

Reviewed by Shahla Maghzi-Ali, Jurisprudence and Social Policy Program, University of California at Berkeley. Email: smaghzi [at] boalthall.berkeley.edu.

pp.653-656

In their important and thought-provoking book, Elazar Barkan and Alexander Karn draw together the work of 15 scholars to examine the function and limitations that apology plays in promoting dialogue and cooperation between groups confronting one another over past injustices. Placing their work at the conjunction between realism and idealism they note that “the essays . . . seek to explain how and to what degree apology injects an idealist component into realist political discourse” (p.5).

The wide ranging disciplines represented by the contributors, spanning the fields of history, political science, negotiation, law, psychiatry, sociology, philosophy and public policy, provide the foundation for the comparative and interdisciplinary approach to the book. The diversity of perspectives in many ways reflects an emerging problem-centered approach to socio-legal scholarship that draws richness from complimentary fields of study and facilitates a deep investigation of the multiple dimensions of apology.

The diversity of academic analysis is matched by global reach. In an age in which the experience of suffering is universal, the scope of the book appropriately examines cases of apology from Europe, Africa, America, the Middle East, and East Asia. The global contours of reconciliation through apology are conceived as expanding the borders of Plato’s ideal Republic from the boundaries of the city-state to the outer limits of the planet as individuals and nations direct their “aspirations for justice to the past as well as to the future” (p.5).

The theme of the book speaks to the field of legal ethics. The authors note that the “delicate speech acts” of apology open a window into the realm of ethics and suggest that in order to produce a nuanced theory of justice, “we ought to ‘take wrongs seriously,’ just as Ronald Dworkin once urged us to with respect to our rights” (p.6). While observing, from an ethical perspective, the powerful role of apology in global politics, the authors acknowledge the criticisms of group apology, including dividing and unsettling communities by dredging the past or mere empty rhetoric. Notwithstanding such criticisms, the authors point out that despite such compelling arguments, the critics of apology have failed to address the increased inclination toward apology that continues to have enormous appeal.

While a unique and seemingly new area of study, the authors note that examination of the role of apology in law and politics began with the work of Nicholas Tavuchis (1991). Tavuchis regards apology as bridging a linguistic and psychological gap between the [*654] victim’s need for acknowledgement and the perpetrator’s desire to reclaim his humanity. While large scale group apology during Tavuchis’ time was the exception rather than the rule, the authors observe that the occurrence of political apology has significantly increased.

Building on Tavuchis’ insights, the authors draw together work examining the significant instances of apology. The book is divided into three parts. Part One, “An Ethical Imperative: Group Apology and the Practice of Justice,” provides a helpful overview of the field of apology, recent examples of political apology, the major contributors to the field, and the characteristics of productive and unproductive apology. Part Two, “Amending the Past: Conceptual Approaches and Impediments,” explores how apology can create the possibility for closure and assist in effecting successful transition and reconciliation. Finally, Part Three, “Case Studies: Australia, America, and Europe,” provides helpful recent comparative examples demonstrating the core principles of apology in action.

Part Two contains six well written articles examining the conceptual issues underlying political apology in recent times. Robert Rotberg opens the section with “Apology, Truth Commissions, and Intrastate Conflict.” He focuses in particular on how public apology can “commence the process of post-traumatic reconciliation in a manner that enables a nation-state to build or rebuild” (p.33). He observes that without it, “a post-conflict nation-state may remain no more than a collective of contending sections and groups in search of a whole” (p.33). He presents recent examples from South Africa’s Truth and Reconciliation Commission to demonstrate the use of apology as a foundation for unity. While noting its shortcomings, such as delays, evidentiary difficulties and protests against amnesty, he nevertheless underscores its achievements made possible by a process of democratic investigations followed by consensus.

The next three articles address the significance of apology for transitioning states. David Crocker brings his background in philosophy and public policy to bear on the question of whether apology alone is sufficient for those who want to reckon with past wrongs as a way of promoting transition to democracy. His answer is that apology alone is not enough, and that the language of reconciliation cannot fully replace retributive justice and punishment. Nevertheless, apology can be appropriate as part of a larger framework of transitional justice. Sociologists Daniel Levy and Natan Sznaider examine the theoretical underpinnings of forgiveness against the backdrop of an emerging Human Rights regime by drawing on the work of Hannah Arendt. Following a review of a wide set of issues related to forgiveness, they observe that we are “witnessing a global genesis of conditions of forgiveness that are shaped through the dialogue with the local” (p.99). Ruti Teitel assesses the question of “The Transitional Apology.” In her well organized essay, she examines the ways apology can create the conditions for forgiveness and cement credibility for [*655] new regimes. She defines “transitional apology” as a ritual of political transformation that is vested with the state’s chief political actor. Tracing the linkages between apology and political transition, liberalization, democracy and globalization, she provides an insightful analysis into the macro implications of apologies rooted at the domestic level.

Exploring the outer contours of apology, Vamik Volkan and George Irani end Part Two with careful examinations of both the physical symbols and cultural practices of apology that influence local response. Volkan, a psychiatrist by training, examines large groups in conflict. He addresses the particular question of how public monuments may in some cases prolong the process of group mourning. He focuses specifically on the Crying Father monument in the Republic of Georgia that commemorates the killing of three schoolboys during a 1991-1992 siege. Volkan vividly describes how the monument is frequently referenced in negotiations between Georgians and South Ossetians and often disrupts peace building efforts by fueling the desire among South Ossetians for revenge. At the same time, significant healing occurs when Georgians offer to visit the monument and pay their respects to the victims alongside their South Ossetian colleagues. Irani, a professor of conflict analysis and management, carefully examines how the use of specific concepts of apology are most effective when based on culturally understood and appropriate reference points. Focusing in particular on Middle Eastern traditions associated with apology, he presents examples of practices, such as musalaha, that promote pardon and forgiveness. He suggests that communities find principles that bridge particular cultures, such as the practice of suhl (agreement) within Muslim, Christian and Jewish traditions, in order to build a grassroots peace process that is understandable to all involved.

Part Three takes the reader across several continents to examine, in a comparative framework, the core principles of apology at work.

The first four articles examine in particular the incidence (or lack thereof) of official apologies to racial minorities for historic injustices. Danielle Celermajer begins the section with a look at the Australian apology for the social policies enacted by their government against Aboriginal indigenous peoples. He points notes that this apology is unique because it expanded the conception of social responsibility. Those who apologized did not necessarily accept causal responsibility, but rather acknowledged that they are members of a nation in whose name misdeeds were committed. This expression of shame recognizes the breakdown of norms and simultaneously restores a commitment to ethical principles considered essential to national identity. In contrast to the large scale apology offered by the Australian people, Rebecca Tsosie, examines the case of an apology offered by an individual to the Native American tribes on behalf of the Bureau of Indian Affairs. The apology came from a Pawnee Indian appointed to the post of Assistant Secretary for Indian Affairs. Tsosie observes that, despite its heartfelt [*656] and stirring message, the response was mixed because many believed that it came from an individual who should also receive the apology. In addition, because it was not accompanied by substantive action, many observed that its effectiveness was diminished. Nevertheless, Tsosi sees the apology as a useful first step, offering an opportunity for self-reflection and an “effort to acknowledge the truth of history” (p.201). Roy Brooks, in his examination of “The New Patriotism and Apology for Slavery,” points out that thus far, there has not been an official apology for slavery in the United States. He notes that recent civic soul-searching could provide the right environment for a moral apology for the atrocities of slavery. Such an apology, Brooks suggests, should be “about honor not alms” (p.221), and be voluntary, genuine and recognize the exceptional act of human suffering associated with two and one-quarter centuries of human bondage. Brooks posits that such an apology would allow recovery of moral capital lost as a result of human injustice and therefore make America more virtuous in the eyes of the nations.

The final articles address the role of accurate historical description in eliciting a moral response to apologize. Alfred Brophy examines the significance of accurately describing the historic causes and origin of the Tulsa race riots in order to lay the foundation for apology and reparation. Julie Fette recounts the important acknowledgment by Jacques Chirac of the history associated with French involvement in deporting 13,000 Jews during the Holocaust, which subsequently prompted many more declarations of repentance. And finally J.D. Bindenagel highlights the creation of an historic endowment for education and remembrance resulting from Holocaust settlement negotiations between German business leaders, politicians and the victims of Nazi slave labor. Each of these works demonstrates the importance of documenting historic wrongs in order to inspire a moral response to apologize and make right.

On the whole, this is an excellent collection, drawing together insights from the disciplines of history, political science, negotiation, law, psychiatry, sociology, philosophy and public policy. It is rich in analysis of apology, as well as in methodology and moral striving. It reminds us that widespread concern for apology and taking wrongs seriously is a reflection of a universal inclination toward “the good” and desire to make the future better in full cognizance of the wrongs not to be repeated from the past.

REFERENCES:
Dworkin, Ronald. 1978. TAKING RIGHTS SERIOUSLY. Cambridge: Harvard University Press.

Plato. 1986. THE REPUBLIC, translated by Benjamin Jowett. Buffalo: Prometheus.

Tavuchis, Nicholas. 1991. MEA CULPA: A SOCIOLOGY OF APOLOGY AND RECONCILIATION. Stanford: Stanford University Press.

© Copyright 2006 by the author, Shahla Maghzi-Ali.

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