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.

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© 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.

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© 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.

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© 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.

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© 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.

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© 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.

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© 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.

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© 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).

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© 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