LAW WITHOUT NATIONS? WHY CONSTITUTIONAL GOVERNMENT REQUIRES SOVEREIGN STATES

by Jeremy A. Rabkin. Princeton, NJ: Princeton University Press, 2005. 350pp. Cloth. $29.95 / £18.95. ISBN: 0-691-09530-2.

Reviewed by Paul Carrese, Professor of Political Science and Director, Academy Scholars Program, US Air Force Academy. Email: paul.carrese [at] usafa.edu. Views expressed are the author’s alone, and not those of any government agency.

pp.182-188

The complexity of post-Cold War globalized life and the efforts of human rights and global governance advocates together have produced a striking prominence for international law in recent decades. The victors of the Second World War developed a fragile consensus on the need for some general re-commitment to the law of nations and especially laws of war, albeit not so idealistic a commitment as their Wilsonian predecessors. These tentative steps set in motion intellectual and political currents about modern international law that now have provoked substantial political controversy – and, with Jeremy Rabkin’s help, some academic controversy. Rabkin, a professor of political science at Cornell University, has argued in books and articles over the past decade that the new conception of international law as supra-state governance goes too far, obscuring the basic reality that state sovereignty (to include negotiated treaties) is the best foundation for domestic liberty and constitutional government. His LAW WITHOUT NATIONS emphasizes the political philosophy and jurisprudence he finds at the root of these debates about how to best structure international relations and political economy.

Rabkin gave greater weight to the latter in THE CASE FOR SOVEREIGNTY (2004), addressing the trans-Atlantic disagreement about the recent Iraq war and debates about American unilateralism versus European multilateralism or globalism. These foreign policy and international relations issues occasionally take center stage in this sequel, but here Rabkin mostly examines the jurisprudential and constitutional underpinnings of an American political spirit of independence and exceptionalism – from the ancient Western resistance to empire, to Bodin, to Locke and the Declaration of Independence. This is a timely and provocative work, not least because Rabkin elaborates the minority view on law and government among American and European academics, especially in law schools and the social sciences. What predominant school of thought should not appreciate a serious critique or counterargument? That said, at points he undermines his own status as honest gadfly by falling into the same polemical tone now widespread in American scholarly debates about law, constitutionalism, and judicial power. Perhaps his defense is that a direct challenge to powerful domestic and international elites – lawyers and judges, as well as advocates for human rights and environmentalism in NGOs, IGOs, and academia – cannot avoid engaging the partisan dimensions to their intellectual projects. [*183]

LAW WITHOUT NATIONS primarily addresses legal theory but traverses a wide territory of other subjects in doing so. Rabkin recognizes that the salience of his investigations into Bodin or Blackstone rests upon more pressing debates – about the relative status of the United Nations and American power in the post-9/11 world, or the International Criminal Court, or the citation of foreign law in US Supreme Court constitutional interpretations. Similarly, he must mention debates in international relations theory about realism versus liberal internationalism, or neoconservative arguments for aggressive democratization versus Kantian diplomacy toward a global consensus, or the trope that American unilateralists are from Mars while European multilateralists are from Venus. The strongest undercurrent here, however, is Rabkin’s earlier work in public law concerning constitutional interpretation and what constitutes judicial activism. Indeed, the fundamental jurisprudential approach of LAW WITHOUT NATIONS is originalism, and further, the positivism of Hobbes and Locke, for the fundamental principles at stake for Rabkin are constitutional government and the liberty and rights it serves. He defends Westphalian sovereignty, under which binding international law requires the consent of governmental parties through treaties or unquestioned custom, because this is a prerequisite for constitutional government on the American model. Against the advocates of Kantianism in international affairs and Progressivism in American constitutional law, Rabkin reaffirms the original conception of the Framers, that the rule of law established and enforced by a capable government, deriving its powers from the consent of the governed, is the best way to protect the rights and security of individuals. A corollary to this original constitutionalism is a foreign policy of independence in which a sovereign, duly constituted government, dedicated to liberty, carefully undertakes international commitments.

Would that this book develops a wider readership among the American and international elites in academia, the media, NGOs, and IGOs who comprise “transnational civil society,” for here is a serious statement of all that cosmopolitanism and post-modern humanism must overcome in their quest for a more just global order. A dose of Rabkin (requiring many a spoonful of sugar) would help sharpen their arguments and tactics, or prod them to moderate their cause to make it more effective. My own scholarship lies closer to Rabkin’s perspective of originalism, and here one could argue that he only partially presents the Framers’ understanding of the American constitutional commitment to abide by the law of nations and a more principled role in relations among states. An originalist of an even odder stripe than Rabkin might further note that the most influential sources for this more complex, balanced constitutionalism, Montesquieu and George Washington, receive mention here but not their due place. Moreover, if Rabkin had incorporated such a dose of originalist, diplomatic sugar from a Frenchman and a general – think of it! – he might have done fuller justice to the most surprising [*184] but still plausible claim of his book: that however imperfect the American constitutional order may be, there is no better record for achieving and spreading, through Westphalian means, the very ends of liberty, equality, and basic security sought by more progressive or post-modern models of law and right.

LAW WITHOUT NATIONS opens by assessing the conflict between Europe and America in recent decades over visions of international affairs and international law, and posing a question to Europeans that hints of Derrida: what’s wrong with difference? In one sense, Rabkin means only to taunt the post-structuralist school, for his bleak defense of American exceptionalism stems from Huntington’s thesis on a clash of civilizations. Indeed, Rabkin takes that one step further: recent centuries reveal competing strands of Western civilization, rooted in rival philosophies, and America should recall its pride in splitting from Europe two centuries ago. This calls to mind Gertrude Himmelfarb’s delineation of distinct ROADS TO MODERNITY (2004) in the British, French, and American Enlightenments, in which she praises America for perfecting British moderation while avoiding the extremism of the French philosophes (or, most of them – Montesquieu excepted). In Rabkin’s version, one intellectual path has led continental Europeans to seek equality and peace through higher levels of administration and expertise, even to supra-sovereign international structures of bureaucracy and juridical law. Europeans may charge Americans with imperialism today, but the concept is not American in origin and, long before Voltaire’s advocacy of enlightened despotism, continental thought and practice has been dominated by achieving or fending off utopian visions of empire, right into the twentieth century. Americans, in contrast, place liberty above all and seek this through a sovereign constitution and a complex politics and civil society. Being more skeptical and traditional in their views of human nature and power, a trait Rabkin traces both to Athens and Jerusalem, Americans adopt separation and balancing of powers in domestic politics and also wariness of international projects for perpetual peace – and thus, a commitment to self-defense.

Upon this foundation Rabkin argues that Americans should stick with constitutional self-government and resist the charms of global governance under new conceptions of pooled sovereignty, or newly-minted “customs” of international law developed by legal elites outside traditional treaty negotiation and ratification. In effect this is a defense of separation of powers and a reminder of why America traditionally applied it to both the domestic and international spheres. The original American aversion to judicial activism – as subverting the consent of the governed and the legitimacy of law – means that there cannot be a robust international judicial power unless, by traditional treaty processes, the executive and/or legislative powers of sovereign states have made a binding law and empowered courts to adjudicate it. The core argument of LAW WITHOUT NATIONS explores the foundations of these constitutional [*185] principles in early modern political philosophy – Bodin and Locke – and their influence in turn on the jurisprudence of Blackstone and the Enlightenment theorists of a modern law of nations, especially Grotius and Vattel. In one sense these analyses might appeal only to political theorists or intellectual historians, but Rabkin regularly notes the connections to the American framers or recent controversies about international law or sovereignty. These modern social contract theorists view humans as naturally separate and prone to conflict, and therefore develop law and sovereignty to provide for basic security. Once transmitted to the American framers, their theories inform skepticism about government protecting individual rights if far removed from consent or untethered from positive law: in the original conception, constitutional forms or means are as important as ends. This, combined with the argument that constitutionalism requires originalism, is Rabkin’s most distinctive contribution.

The central chapter, on “The Diplomacy of Independence,” sketches an intellectual history of American foreign policy and the law of nations from 1776 to the Cold War, aimed at defending the current Bush Administration policies after the 2001 terrorist attacks. Rabkin offers a strong case that America’s truest policy, given its constitutional tradition, is neither isolationism nor crusaderism, but the defense of its own liberty. This is less original but still important, since historians and theorists of American foreign policy and especially of the shifting fortunes of Washington’s “Farewell Address” have addressed many of these points – most recently works by Spalding and Garrity (1996), and Meade (1997). Rabkin’s particular contribution is that America’s adherence (with some deviations) to a middle ground, avoiding isolation but also adventurism or utopian globalism, follows the logic of its foundations in constitutionalism and sovereignty as indispensable for protecting rights and collective liberty. However, the brief portrait of Washington’s 1796 address, the first great statement of American foreign policy, over-emphasizes the realist strains in the founder’s advice. Washington did warn about “permanent” alliances, especially with more powerful states, even as he recognized that our commercial character invariably would draw us into world politics and that temporary alliances would be needed. Rabkin omits, however, the elements of Washington’s counsel that balance this: that America should “[o]bserve good faith and justice towards all nations” and cultivate “peace and harmony with all,” since “[r]eligion and morality enjoin this conduct.” The larger moderation of Washington’s statesmanship, and his view of our constitutionalism, dictated that America should engage with the world as “our interest guided by our justice shall counsel” – which gives greater place to interest than neo-Kantians might prefer, but sees a higher standard of justice than realists or strict Westphalians could accept. Washington called all generations of Americans to “give to mankind the magnanimous and too-novel example of a people always guided by an exalted justice and benevolence.” Indeed, “every sentiment which ennobles human nature” recommends the American effort to achieve this higher justice, even if [*186] “temporary advantages” might be lost. One can also note that our judicial tradition which forecloses “advisory opinions” arose because of Washington’s scrupulous care for the law of nations (also a theme in the Address) – for this is why he requested a ruling from Chief Justice Jay and the Supreme Court about our precise obligations under treaties with France and Britain.

This fuller picture does not contradict Rabkin’s basic argument about constitutionalism and sovereignty, but it does complicate it. A more moderate position at the founding might indicate more complex policies or at least a more subtle rhetoric today. Of course, the same challenge arises for today’s advocates of the judicializing of international affairs: how reasonable is it to press ahead with the ambition to legalize and bureaucratize world affairs at the expense of state sovereignty when, as Rabkin shows, this may well involve gambling away a legal capital that has achieved greater liberty and equality for more people than any other jurisprudence or political philosophy? Some might at least take pause given Rabkin’s argument that there is a tinge of lawlessness inherent in pushing radically new conceptions of international law, and they might gain some understanding of the reaction from sovereign nation states and specifically Anglo-American constitutionalism.

If Rabkin truly wishes to induce moderation in Kantian advocates of globalism, he might also do more to explain how such a “European” view of supra-national sovereignty penetrated America in the 19th century with Progressivism and such exemplars as Wilson and Dewey, offering the first extensive arguments for perpetual peace and global consciousness. Why did the detour develop, and how might some be persuaded to turn back? Similarly, how did an American judiciary and legal community supposedly steeped in Lockean positivism and a narrow view of judicial power develop into a branch that has judicialized our politics and sparked the judicializing of international law and global affairs? My own axe to grind here is that Montesquieu, that French philosopher mostly forgotten or only ceremonially cited today, plays a crucial role in this story. He was the single most authoritative source for the Framers in the 1780s and 1790s when developing our constitution, and he is arguably more of an influence upon Blackstone than either Hobbes or Locke. It is Montesquieu, breaking from his predecessors in liberal philosophy, who elevates the right of nations as one of the basic forms of right or law, along with national law and private law (Montesquieu 1748/1989). He also establishes that liberal constitutionalism requires an independent judiciary. Rabkin overlooks this broader dimension to the liberal tradition and its likely effect on the Founders – and, on the subsequent development of progressivism. Montesquieu is no Kantian, but he also is not a strict social contractarian or atomist. He and his disciple Blackstone ground the law of nations in natural law and see its fundamental principles as preservation and reciprocity – indeed, the Golden Rule. Montesquieu’s criticisms of Roman imperialism (he wrote a history [*187] of the fall from republic to empire, which inspired Gibbon) and of Machiavellian conquest clearly fit with Washington’s balancing of interest and justice. A Montesquieuan like Madison did not need to jump ship to Kantianism for his essay of the early 1790s on universal peace, envisioning an end to wars of conquest. John Marshall, too, emphasized “the great principles of reason and justice” informing the law of nations in such cases as HOGSHEADS and THE ANTELOPE without remotely supporting Dworkinian theories of Herculean judges who dispense a man-made natural law. This points to another concern about Rabkin’s portrait of the founding, which downplays traditional natural law as the foundation for individual rights and constitutional government. He implies that the Roman Catholic tradition, as heir to the Roman empire, is fond of modern schemes of universal rule and that its concept of natural law is putty in the hands of progressives like Dworkin or Human Rights Watch. Perhaps this is why he never cites Mary Ann Glendon’s work rehabilitating the UN Declaration of Human Rights for concerned traditionalists (Glendon 2001). Glendon, however, finds no contradiction in her recent criticism of the use of foreign law by the U.S. Supreme Court to overturn statutes on controversial moral issues, as in LAWRENCE and ROPER (Glendon 2005). All of this suggests that advocates of constitutional sovereignty and traditional jurisprudence may adhere to more complex jurisprudential foundations than Rabkin allows, and, that a case could be made that is more persuasive to those with aspirations to natural and/or international justice.

To be fair, these kinds of concerns also point to the great service done by LAW WITHOUT NATIONS in provoking a debate about first principles so as to address more effectively several pressing quandaries of law and politics. I have not even mentioned the three chapters in the second half of the book that specifically examine the model of Eurogovernance, international human rights law, and international trade agreements and the WTO. Rabkin insists that we need clear thinking about first principles for a world that is startlingly new and dangerous in many ways, but that this in turn will require consideration of traditional principles and established sources. Those who disagree with his views on sovereignty and international law will at least have a chance to clarify and affirm their own foundations, or anti-foundations, as the case may be.


REFERENCES:
Glendon, Mary Ann. 2005. “Judicial Tourism: What’s Wrong with the U.S. Supreme Court Citing Foreign Law.” THE WALL STREET JOURNAL. September 16.

Glendon, Mary Ann. 2001. A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS. New York: Random House.

Himmelfarb, Gertrude. 2004. THE ROADS TO MODERNITY: THE BRITISH, FRENCH, AND AMERICAN ENLIGHTENMENTS. New York: Knopf. [*188]

McDougall, Walter. 1997. PROMISED LAND, CRUSADER STATE: AMERICA’S ENCOUNTER WITH THE WORLD SINCE 1776. Boston: Houghton Mifflin.

Montesquieu. 1748/1989. THE SPIRIT OF THE LAWS. Anne Cohler, et. al. (ed. and tr.). New York: Cambridge University Press.

Rabkin, Jeremy A. 2004. THE CASE FOR SOVEREIGNTY: WHY THE WORLD SHOULD WELCOME AMERICAN INDEPENDENCE. Washington, D.C.: AEI Press.

Spalding, Matthew and Patrick Garrity. 1996. A SACRED UNION OF CITIZENS: GEORGE WASHINGTON’S FAREWELL ADDRESS AND THE AMERICAN CHARACTER. Lanham, MD: Rowman & Littlefield.

CASE REFERENCES:
HOGSHEADS OF SUGAR v. BOYLE, 13 U.S. 191 (1815).

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

ROPER v. SIMMONS, 125 S. Ct. 1183 (2005).

THE ANTELOPE, 23 U.S. 66 (1825).

© Copyright 2006 by the author, Paul Carrese.

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MARRIAGE ON TRIAL: A HANDBOOK WITH CASES, LAWS AND DOCUMENTS

by Lee Walzer. Santa Barbara, CA: ABC-CLIO Press, 2005. 307pp. Cloth. $55.00. ISBN: 1-85109-610-8.

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University.
E-mail: bowen [at] jcu.edu

pp.179-181

As Lee Walzer notes in his Preface, the purpose of MARRIAGE ON TRIAL is to “explore how the American legal system has approached the regulation of marital relationships in our society.” The subtext is to demonstrate that marriage has never been a static institution but rather has had an evolving meaning, and that the government, via judicial decision, has validated different definitions of marriage. The vast majority of the narrative is devoted to an examination of the role of religion and race in defining marriage to suggest that social and political context matter in defining marriage. This is all to set the stage for situating same sex marriage into a conversation about how and why government has, does and perhaps will regulate marriage as it does.

The first chapter seeks to provide an overview of the issues and controversies. It is organized, as indicated by the subheadings, in terms of articulating the views and interests of various constituencies (e.g. African American, social conservatives, homosexuals, polygamists and other sexual dissidents, religion, men, women, and so on) about marriage. The narrative is not satisfying in large part because of this organizational structure. It is not apparent how and why the groups are ordered the way they are, and moreover, they are not comparable categories. Discussing how the institution of marriage affects women as a class and then detailing the views of social conservatives on the role of the state in regulating marriage seems to mix up the unit of analysis. Shifting then to categories like divorce and state governments suggests that the narrative is more descriptive than analytic. The lack of conclusion or synthesis reinforces this observation.

Still, the chapter contains some useful basic information for those not familiar with the regulation of marriage by the state throughout U.S. history. This information, including a discussion of the debate over polygamy as Utah sought statehood, as well as the relationship of slavery to contemporary marriage law, is more thoroughly developed in Chapter 2. Entitled “Historical Background” this chapter repeats much of the introduction, albeit in expanded form. Presenting largely social history, Walzer explains the rise of anti-miscegenation statutes in the context of slavery. Drawing heavily on the work of Rachel Moran (2001), Walzer details the creation of a caste system through the codification of bans on marriage on the basis of race. He then effectively documents attempts to overturn statutes banning interracial marriage via state courts, demonstrating that LOVING v. VIRGINIA (1967) is the culmination of nearly a century of efforts, with the most organized and [*180] concerted activism occurring after World War II. Polygamy is then discussed in the context of 19th century regulation directed at Mormons. Considering Congressional legislation, the author concludes that “the federal government succeeded in subduing polygamy in Utah” (p.42). Then the discussion turns to same-sex marriage. The troubling part about this discussion is that it is more descriptive than analytic. While both the anti-miscegenation and polygamy examples demonstrate the power of government to regulate marriage, it is not clear whether state power is seen as oppressive or liberating, and for whom. Without a theoretical framework, it is difficult to locate the same-sex marriage debate in the conversation. While some might argue that all regulation is inherently oppressive, others might conclude that without government protection, exploitation (e.g. women in polygamous relationships) is possible. Although it is worth noting that “[i]n the twenty-first century, the new boundary of American marriage is being drawn by same-sex couples” (p.43), there is not enough theoretical focus to sustain the discussion. Recent case law from Vermont and Massachusetts is detailed, but the conclusion seems to be little more than “the battle over same-sex marriage is still being fought, and likely will continue to be for several years to come” (pp.47-48), without much sense as to how we might expect the issue to be resolved or why.

Chapter 3, entitled “The Cases,” provides a discussion and analysis of the cases that give shape to the narratives of Chapter 2. The facts of LOVING v. VIRGINIA are provided, the outcome is described and then some analysis follows. This format is followed for the other four cases included: REYNOLDS v. U.S. (polygamy), MARVIN v. MARVIN (palimony), and two same-sex marriage cases, GOODRICH v. DEPARTMENT OF PUBLIC HEALTH (Massachusetts) and BAKER v. VERMONT. The best analyses among the group are of GOODRICH and BAKER, perhaps because they are the least familiar in terms of legal reasoning and most germane to the purpose of the volume. Forty-two pages of narrative of the entire book (137 pages) are devoted to these two cases. Each majority, concurring and dissenting opinion is thoroughly summarized. The analysis suggests that state constitutions and laws have been more effective in securing the rights of gays and lesbians than has federal law. Walzer, however, makes clear that although some states are protecting same-sex marriage, many others are not, and that, of course, the issue is a “political lightning rod, much (like) abortion” (p.119) and has “shaken up both American jurisprudence and politics” (p.100).

“The Future of Marriage” is the title of Chapter 4, and it is easily the strongest in the volume. Drawing upon the preceding discussions, this chapter starts from the premise that “marriage is an ever-changing institution” (p.121). This argument is given more shape and focus than earlier, with Walzer demonstrating that “the features that make up marriage have differed not only between cultures but also within a particular culture over a period of time” (p.122). All this is to suggest that same-sex marriage will ironically have minimal effect on [*181] marriage but will lead perhaps to broader social changes. The historical record indicates that the definition of and standards for marriage have not been static and that same-sex marriage can be incorporated into the debate, given existing structures, without much legal difficulty. Yet, the political climate and broader concerns about sexuality do suggest that legal acceptance of same-sex marriage will prompt a new societal understanding of marriage. Ultimately, then, Walzer implicitly argues that government and courts respond to social change and in so doing help to promote social change.

The second half of the book includes various primary source documents relevant to the issue at hand. The cases and statutes discussed at length in the first half of the text are included here. While it makes sense to incorporate such material in a work subtitled “Handbook with Cases, Law and Documents,” this material could be more clearly organized. There are no subheadings or a sufficiently detailed table of contents to locate cases and statutes easily. Inclusion of these materials also highlights one of the volume’s weaknesses—the intended audience is not clear. The first half is more descriptive than analytic, and often repetitive. It does not offer much new to graduate students or scholars in the field. Yet it presents more than sufficient information for undergraduates, making it highly unlikely they would consult the primary source material in the second half. The thorough description of the documents would likely suffice for that audience.

In sum, I found this to be a disappointing volume. It would have benefited from tighter editing, preventing chapter-to-chapter redundancy. A clearer theoretical and organizational framework would also have minimized the repetition and tendency to be overly descriptive. Still, for those who know very little about the history of marriage and the ways in which the state has regulated it, this primer provides a thorough overview.

REFERENCES:
Moran, Rachel F. 2001. INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE. Chicago: University of Chicago Press.

CASE REFERENCES:
BAKER v. VERMONT, 744 A.2d 864 (1999).

GOODRICH v. DEPARTMENT OF PUBLIC HEALTH, 798 N.E.2d 941, (Mass 2003).

LOVING v. VIRGINIA, 388 U.S. 1 (1967).

MARVIN v. MARVIN, 557 P.2d 106 (Cal. 1976).

REYNOLDS v. U.S. 98 U.S. 244 (1879).

© Copyright 2006 by the author, Lauren Bowen.

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THE JUDICIAL CONSTRUCTION OF EUROPE

by Alec Stone Sweet. New York, N.Y.; Oxford University Press, 2004. 294pp. Hardback. £58.00/$129.95. ISBN: 0-19-927552-1. Paperback. £19.99/$45.00. ISBN 0-19-927553-X.

Reviewed by Carla Thorson, World Affairs Council of Northern California. Email: cthorson [at] wacsf.org

pp.177-178

The recent failure of the European Union’s draft constitution might lead one to conclude that European legal integration really is a myth. Therefore, the theory put forth by Alec Stone Sweet and his colleagues in THE JUDICIAL CONSTRUCTION OF EUROPE, as well as other similar volumes has been disproved. Stone Sweet, however, would certainly disagree. According to his theory of “judicialization,” this is just another hurdle in the long march toward legal integration and European unification. Looking back at the history of this process, from the formation of the European Economic Community through the establishment of the European Union, there have always been critics and skeptics. Yet, despite all the naysayers, the process has steadily proceeded. Indeed, the negative press associated with integration often has had the reverse effect. The failure of constitutional referenda in France and the Netherlands in the summer of 2005 thus is likely to be only a temporary, albeit highly-publicized, setback for European integration—by no means the first and certainly not the last.

Moreover, the deductive theory in this volume that seeks to explain the dynamics of European integration and institutional change does not preclude the possibility of a “no” vote on the EU draft constitution. Rather, Stone Sweet argues that the “constitutionalization” of the Treaty of Rome is a process that can be traced back to 1959. It is a process resting not on a constitution or institutional structure, but on a set of foundational decisions by the European Court of Justice that has gradually established the legal basis for political integration of Europe. If anything, Stone Sweet might argue that the new EU Constitution is a political document, rejected on purely political grounds, while the legal basis for integration remains and continues to evolve without interruption. The judicialization of Europe – i.e. the process of consolidating judicial authority over the institutional evolution of a society – does not depend on the ratification of the EU Constitution, as it is already well underway.

JUDICIAL CONSTRUCTION focuses on the institution which is seen as the driving force of the integration process, the European Court of Justice (ECJ). Using quantitative analysis of aggregate data from the court’s jurisprudence, and qualitative case studies, Stone Sweet first develops and tests a theory of integration. He, with Thomas Brunell, demonstrates the profound effect of the ECJ in shaping supranational governance. Then, with colleagues Margaret McCown, Rachel Cichowski and Markus Gehring, he assesses the impact of the European Court of Justice on the politics of trade, sex equality, and [*178] environmental protection in the European Union; the objective of these case studies being to understand the effects of ECJ case law on policy outcomes and on the policy-relevant behavior of nonjudicial actors. In some areas, particularly trade and gender equality, it is judges not governments, legislatures or Member States that have influenced institutional development.

While the focus of this volume is squarely on an institution, the ECJ, Stone Sweet’s most salient argument is that integration has not proceeded from the institutional design of the court, as others have theorized. Rather he supposes that the ECJ is more like an umbrella under which these market relationships, interactions between national governments, and among legislators or private individuals have evolved. He suggests that the activities of supranational institutions have routinely produced unintended consequences from those envisioned by the designers. The institutional design of the ECJ is not therefore the critical component for integration. For Stone Sweet, European integration is “fundamentally about how a large number of actors, operating in relatively separate arenas, were able to produce new forms of exchange and collective governance for themselves” (p.236). Through its broad zone of discretion, the ECJ has provided the framework for these interactions, but does not dictate the terms so much as it shapes them. This observation sets his argument apart from other work on the European Court of Justice. Stone Sweet and his colleagues present a strong case for the inevitability of European integration—with or without an EU Constitution.

© Copyright 2006 by the author, Carla Thorson.

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THE LAW AND ETHICS OF MEDICAL RESEARCH: INTERNATIONAL BIOETHICS AND HUMAN RIGHTS

by Aurora Plomer. London/Sydney/Portland: Cavendish Publishing, 2005. 240pp. Paperback. $100.00/£50.00 ISBN: 185941687X.

Reviewed by Gonzalo Arruego, BMW Center for German and European Studies, Georgetown University. Email: ga87 [at] georgetown.edu

pp.173-176

During the past decades, the fast developments experienced by the medical sciences have opened a deep interdisciplinary debate on the principles that should guide and rule them. The debate has progressively changed the attitude of the medical profession regarding the relationship with the patients, now mainly understood in the language of patients’ rights, and it is facing progressively deeper and more intense ethical and legal discussions concerning both the possibilities and the limits of the new biomedical advances, especially regarding biomedical research. This is a field where different fundamental rights and diverse social interests converge, a convergence which obliges legislators and juridical operators to find an adequate balance between the different rights at stake and the social benefits derived from biomedical research.

In this context, Aurora Plomer’s THE LAW AND ETHICS OF MEDICAL RESEARCH focuses on the ethical and legal debate surrounding medical research, particularly when involving human subjects. More precisely, and as Plomer points out, the object of the book is an analysis of the evolution in the form and content of international instruments regulating biomedical research, an analysis where the author pays special attention to the Council of Europe’s Convention on Human Rights and Biomedicine (CHRB), signed in Oviedo, Spain, in 1997. Plomer explores the strengths and weaknesses of the Convention and its ability to guarantee the fundamental rights of the individual in some of the most controversial areas of biomedical research.

THE LAW AND ETHICS OF MEDICAL RESEARCH is guided by three main ideas and concerns:
1) How increasingly globalized medical research is heightening the tension between the aspiration to universality of ethics-driven regulation and the emerging reality of diversity in moral cultures of democratic societies. This plurality can be found both within a certain democratic society and among societies, despite their shared democratic traditions. The reluctance of some European countries to sign the Convention on Human Rights and Biomedicine, “largely because of deep divisions over the legitimacy of embryo research,” is a good example of these problems. In this context, “whilst countries such as Germany and Ireland will not ratify the Convention because they consider it too liberal in allowing research to be conducted on human embryos, countries such as the UK and Belgium hold the opposite view and have in fact adopted legislation which permits the creation of embryos for [*174] research purposes directly at odds with Art. 18 of the CHRB” (p.77).

2) The difficulties to determine the exact scope and content of the principles and values underlying the international instruments regulating medical research, and how depending on the philosophical point of view adopted when interpreting the international instruments regulating biomedical research, the same principle may lead to opposite conclusions in a certain matter. From this perspective, the achievement of an international consensus regarding the principles ruling biomedical research could be illusory, as the remaining question would not be whether research must be guided, for example, by the principle of human dignity, but what the exact nature, content and requirements of the principle are in a concrete matter like embryonic stem cell research. As Plomer remarks, “social convergence and agreement on the universal or fundamental character of general values such as human dignity or life need not therefore connote or reflect agreement on the particular interpretation or concrete application to be given to these concepts. . . In short, convergence on general ethical values or principles need not imply agreement, and indeed may obscure deep disagreement, in the determination and concrete application of the principles in particular cases” (p.71).

3) One of the great recent achievements in the international debate on the protection of human subjects in biomedical research is the shift from the realm of ethics to the realm of legal enforceable human rights in biomedicine, a transcendental step taken by the Council of Europe through the CHRB, “which has the potential to offer greater protection to human subjects.” As Plomer points out, though fundamental legal and ethical principles both carry the potential for indeterminacy and controversy over their scope of application, “in the case of legal principles, however, the controversy admits of a resolution through a legal forum such as a court, which is itself bound to follow agreed procedures and cannons of interpretation. The outcome is legally binding on the parties.” Therefore, the adoption of a human rights instrument in the area of biomedical research, previously characterised by the prevalence of “ethics driven self regulation,” is a highly significant development, as it “marks the introduction of an external set of standards and procedures by which the biomedical profession’s own standards may be judged, against which it may be held legally accountable by victims seeking redress” (p.16).

These three guidelines are strongly present in the first chapter of the book, “From Bioethics to Human Rights in Biomedicine,” where Plomer examines the evolution in the form and content of international instruments regulating biomedical research, within the framework of the origins of international bioethics. From this point of view, an exploration of the origins and evolution of the 1964 Declaration of Helsinki is carried out “against the global growth of the bioethics movement, its impact on public policy and the emergence of national and international bioethics committees” (p.1), then focusing on the Council of Europe’s Convention on [*175] Human Rights and Biomedicine and the problems regarding its legal force and its relations with the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The second chapter, “Human Rights and Universal Principles,” focuses on the theoretical difficulties in identifying the exact meaning and status of ethical and legal principles in the field of biomedical research. The departure point of the chapter is the diverse nature and content of norms regulating biomedical research both within and outside Europe, and the legal vacuum caused by the fact that in such a fast developing field as biomedicine – think for example on stem cell research or research on human tissue – law tends to lag behind science. In such a complex context, though the adoption of an international legal instrument which aspires to capture fundamental values constitutes a highly important step, the remaining problem to uniformity is the diversity of norms and forms of regulation among different countries, thus risking the effectiveness of any uniform international regulation, which could become a mere minimum common denominator, diluting the rights of the individuals. The question addressed in the chapter is whether the rights contained in the CHRB reflect universal principles against which to judge domestic legal regimes on medical research, a question Plomer deals with by comparing the Convention with the 1996 report adopted by the US Advisory Committee on Human Radiation Experiments and its claim of having identified fundamental ethical principles valid across all cultures and times.

Chapter 3, “Non-therapeutic Research: Domestic Remedies and Convention Rights,” examines the CHRB rules of consent with regard to non-therapeutic research and whether the fundamental rights system of the Convention offers to individuals a higher degree of protection as compared to that provided by domestic law in the UK, Canada and US. After exploring the meaning of the principle of informed consent in diverse human rights instruments, Plomer focuses on the Port Down experiments in the UK and compares the civil remedies available under domestic British Law with litigation surrounding radiation experiments in the US and compares the protection provided by the CHRB. This analysis highlights the existing differences between the Convention and The European Convention on Human Rights.

Chapter 4 examines one of the most problematic issues in biomedical research, embryonic stem cell research. The central question is whether embryonic stem cell research constitutes a violation of the principle of respect to human dignity and the fundamental right to life. Plomer examines the meaning of these principles applied to human embryo and to stem cell research, through the analysis of the judicial decisions derived from the European Convention of Human Rights and the Convention on Human Rights and Biomedicine, some of the decisions emanated from some of the European Constitutional Courts and the policy adopted in the United States and the decisions taken by US courts concerning the status of frozen embryos. The chapter again underlines the difficulties [*176] in determining the exact content and scope of the principles and values ruling biomedical research. As Plomer stresses, the unprecedented and massive references to the principle of human dignity in the new human rights instruments in biomedicine does not conclusively dispel the uncertainty and controversy regarding the scope of application of the concept. Despite its prominent use, there remains considerable uncertainty about its meaning and scope, and its role as a background principle.

In the fifth chapter, “The Rights of the Dead: Research on Human Tissues and Body Parts,” Plomer analyses the question of biomedical research on human tissues and body parts. She reviews both the moral background and legal framework vis à vis corpses in the UK and considers how European human rights law could be extended to secure adequate legal protection of the dead, while recognising the public interest and legitimacy of some forms of interference with human corpses in order to facilitate scientific research. After analysing the weaknesses of the property, consent and authorisation models concerning use of human tissue and body parts in biomedical research, Plomer suggests that articulation of relevant principles may be best secured within a human rights framework, thus allowing legislators and policy makers to balance individual rights and the interest of society. Moreover, she finds application of the European CHR to the dead is warranted and consistent with the ideal of the Convention as a “living document.” In her view, though the right to life proclaimed in Article 2 could not be applied to the dead, Articles 8 (the right to privacy) and 3 (the right to freedom from degrading treatment) would be applicable.

The closing chapter reviews new international and regional ethical guidelines on research in developing countries and their compatibility with fundamental principles of human rights law within the framework of controversial medical trials in developing countries to address the AIDS pandemic. Plomer compares the 2000 revision of the Declaration of Helsinki with new ethical guidelines on research in developing countries and assesses their compatibility with the European Convention on Human Rights and Convention on Human Rights and Biomedicine, with special attention to the principle of the equal dignity of every human being and the prohibition of discrimination. Plomer suggests that, although the move from ethics-driven regulation towards human rights-driven regulation of biomedical research “is a landmark achievement which has the potential to bring greater justice to participants in research trials . . . for the potential to be realised, further advances are needed. On the one hand the normative gap between the European Convention on Human Rights and the Convention on Human Rights and Biomedicine has to be filled. On the other hand fundamental, procedural limitations on enforcement have to be lifted. Only then will transnational justice be truly achieved” (p.135).

© Copyright 2006 by the author, Gonzalo Arruego.

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LAW, ECONOMICS AND ANTITRUST: TOWARDS A NEW PERSPECTIVE

by Patrick A. McNutt. Cheltenham, UK: Edward Elgar Publishing, 2005. 432pp. Hardcover £75.00/$130.00. ISBN: 1858987857.

Reviewed by Scott E. Graves, Department of Political Science, Georgia State University. Email: polseg [at] langate.gsu.edu.

pp.168-172

In the Acknowledgements to LAW, ECONOMICS AND ANTITRUST, author Patrick McNutt states that the book has had “a long gestation period” (p.xxi). That period saw his publication of a 2nd Edition of THE ECONOMICS OF PUBLIC CHOICE, in addition to service as a regulator, consulting on and directing competition policy in the UK and Ireland, and as a private consultant to corporations on antitrust compliance issues. McNutt has also worked as an academic, lecturing at several colleges and universities. This new book reflects all of those experiences, which gives it a refreshing scope and perspective, but will likely frustrate the interests of many potential readers. The author switches focus often and without warning, from abstract philosophical issues most likely to be of academic interest to practical questions concerning the design of enforcement strategies or modeling firm behavior under different legal rules. Unfortunately, many of the gains that might be had from such triangulation are not realized because McNutt’s different perspectives are often not talking to each other. The effect over time is much like watching someone else channel-surfing.

Although described as a textbook on its dust jacket, the book would be useful in its entirety only for a course with very particular goals and for students who are already familiar with most of the issues being addressed. Comprised of twelve chapters and a postscript, the book is less useful as instructional or reference material and more as an extended, very stimulating conversation with an open-minded and knowledgeable thinker on the intersections between economics and law. Many literatures are reviewed in brief or cherry picked for insights, but McNutt appears some of the time to be synthesizing or explaining the fruits of law and economics and at others to be advocating a particular point of view on the subject. The subjects touched upon range far and wide, which makes the book often thought provoking, but sections and subsections within the chapters are too often brief, random, and sometimes problematic treatments. Quite often, it is difficult to follow where McNutt is trying to go.

The first chapter is devoted to introducing the law and economics paradigm and the goals of competition law. Problems with using the book as a course text appear immediately, as McNutt introduces terms and concepts that he characterizes either imprecisely, controversially (without noting the controversy), or not at all. On page 1, he defines transaction costs as “the costs of collecting and evaluating information about alternative options,” which is certainly a part of transaction costs but does not exhaust them. Nevertheless, his subsequent use of the term properly includes many other costs due to [*169] bargaining, enforcement, and other barriers to exchange (cf., p.4) without supplementing his definition. Much of Chapter 1 is devoted to foreshadowing more in-depth discussions presented in the subsequent chapters, but it also has space to touch briefly on very abstract issues, such as the proper criteria upon which to judge different legal rules, contrasting Kantian and utilitarian evaluations of legal imperatives, positive and normative conceptions of law, and incentive-based and duty-based approaches to discouraging socially unacceptable behavior—all this in 30 pages.

Chapter 2 addresses property rights, primarily within the context of the firm. Very little in this chapter relates to competition policy per se. Quite possibly, the interposing of McNutt’s work on the 2nd Edition mentioned above influenced the development of much of this material, as he treats the importance of property rights to efficient outcomes from a very general theoretical level, regularly citing public and social choice theorists. Starting with Coase, he deals with the impact of differing conceptions of property rights, allocation mechanisms and rules, and ownership and governance structures in firms on efficiency. There are references to scholars like Demsetz, Buchanan, and Posner, but McNutt uses them to phrase his own perspectives rather than to summarize theirs.

Chapter 3, which deals with contracting, and Chapter 4, entitled “Liability and Law’s Indeterminacy,” also offer little to the reader looking for detailed analysis of competition policy. Nevertheless, these largely theoretical, highly abstract considerations of property rights, contract law, and liability rules from a law and economics perspective can be related to each other and to antitrust by their shared recognition that efficient economies depend equally on realizing desirable cooperation and desirable competition. That said, these chapters do not deal with the differences between horizontal restraints on trade and vertical arrangements that have been central to antitrust policy for most of its history and that factor significantly in later chapters.

These early chapters are also especially prone to displaying the problem noted above. McNutt’s presentation of ideas is often fragmentary, disjointed, or lacking in foundation. An example can be found near the end of Chapter 3. The first sentence of a three paragraph subsection entitled “Bayesian Influence,” which is itself found in a section called “Neo-Walrasian Theory and Law,” reads, “[b]ayesian equilibrium does not take into account the fact that players may learn their opponents’ types by observing their play, since each move by a player may reveal information on his or her type” (p.92). Assuming he is referring to Perfect Bayesian Equlibrium (PBE), the statement is very curious, since this is exactly what happens in Bayesian games. For instance, equilibria in signalling games, a prominent example of a dynamic Bayesian game of incomplete information, can be divided into separating, partially separating, and pooling equilibria depending on whether the uninformed player can deduce the informed player’s type from the signals contained in the informed player’s [*170] actions (Fudenberg and Tirole 2000). In the rest of this paragraph, McNutt refers to Bayes’ rule and Bayesian updating without explaining either, and the two paragraphs concluding the subsection have no discernable relationship to Bayesian influences. This paragraph is the only mention of Bayesian games or Bayes’ rule in the book.

Substantive discussion of antitrust law begins with Chapter 5, on market entry. This chapter is considerably more coherent than most of what has preceded and some earlier points that seemed isolated or lacking in context are employed profitably. McNutt frames market entry questions in terms of Isaiah Berlin’s distinction between positive and negative liberties. From the perspective of competition policy, incumbent firms can be said to claim the negative liberty of continued market position, or the freedom to use whatever power or resources they have, possibly to deter entry, while potential entrants might claim a positive liberty to market entry aided by a competition agency. The responsibility of such an agency is to balance these positive and negative liberties to produce efficient prices. It is hard to see the value of this lofty framework at first blush, but the language is convenient for the discussion of regulated monopolies and network industries with common carrier requirements. The chapter contains an extended and valuable analysis of the essential facilities doctrine and concise comparisons between European and American approaches to efficient entry policy. Comparatively short, Chapter 6 offers an extension of the efficient entry analysis focused specifically on how incumbent firms might deter entry through reputation effects or predatory pricing. McNutt addresses how courts and regulators might identify these barriers to entry and how to calculate damages that would effectively deter them.

Chapters 7 and 8 address optimal competition policy from the point of view of the regulator (and court, potentially) and the regulated firm, respectively. To a reader more familiar with antitrust enforcement in the United States, these chapters are valuable because they focus more on enforcement regimes in the EU and Canada. McNutt also contrasts enforcement approaches in the EU with the development of American practice, particularly the continued reliance on the “structure-conduct-performance” model in the EU as opposed to the movement toward “transaction cost economics” models in the US. The treatments are considerably more sustained in these chapters than in earlier ones, but the author still has a tendency to jump around a bit. As a concrete example, discussion of Figure 8.3 begins on page 215 (before any mention of Figures 8.1 or 8.2), skips page 216, continues in considerable detail on page 217, is followed by the appearance and discussion of 8.1 and 8.2 on the next few pages, then reappears on page 220, opposite Figure 8.3 on page 221. Practically speaking, this situation is awkward because it requires the reader to turn pages back and forth, but this is just an example of the way subjects often appear and disappear, only to appear again pages later. [*171]

Three more chapters follow addressing competition policy questions at length, but by this point the reader might begin to feel that the author was repeating himself or presenting several different, general perspectives that contradict each other but might still be accurate in certain contexts. In Chapter 9, which returns to many of the non-market economics issues raised in Chapters 2 and 3, McNutt writes that “an efficient use of economic resources is the raison d’être of antitrust and competition policy” and proceeds to stress again the importance of clearly defined property rights, then the balance of positive and negative liberties from Chapter 5 (p.252). On pages 255-256, he writes that the “primary purpose of the competition laws . . . is that ‘it is competition, and not competitors, which the Act protects’” without objection, despite the fact that he has frequently argued throughout the book that it is a mistake to assume that all competition serves the goals of efficiency (cf., pp.178-179). Many of the sentences appearing on pages 255-256 are repeated, in slightly reorganized form, only a few pages later in the next chapter (p.260). Moreover, the points sound familiar from earlier chapters in the book, and in very few instances do repetitions build on those points.

The last chapter is entitled “The Value of Competition Law,” but it does not provide the kind of broad insights that descend clearly from the arguments and materials presented before that one might expect. He offers two propositions for competition policy, the first of which is that some degree of vertical integration “may not necessarily be socially undesirable” (p.319). Possibly, this is an important contribution to European competition law, but in the United States many vertical arrangements, like nonprice restraints have been evaluated under a “rule of reason” for decades (CONTINENTAL T.V. INC v. GTE SYLVANIA). The second proposition, that the definition of legal exemptions for anticompetitive agreements should be flexible, is equally non-specific. A postscript addresses a few recent changes in EU competition law and suggests that competition law in integrated multistate unions like the EU will have to coordinate antitrust policy closely with trade policy. The development of the “state action” exemption in American antitrust law could be illustrative.

As suggested earlier in the review, the book is quite often an interesting read and provokes plenty of unexpected thoughts. Nevertheless, it is not clear why many readers should seek out this book unless they were in the market for some provocative ideas without a great deal of organizational coherence. Scholars familiar with the public choice literature and American antitrust law could benefit from the stimulating questions McNutt raises throughout and for the wealth of examples from European competition law, however.

REFERENCES:
Fudenberg, Drew and Jean Tirole. 2000. GAME THEORY. Cambridge, MA: The MIT Press. [*172]

McNutt, Patrick A. 2002. THE ECONOMICS OF PUBLIC CHOICE (2nd ed). Cheltenham, UK: Edward Elgar Publishing.

CASE REFERENCES:
CONTINENTAL T.V. v. GTE SYLVANIA, 433 U.S. 36 (1977).

© Copyright 2006 by the author, Scott E. Graves.

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ILLEGAL BEINGS: HUMAN CLONES AND THE LAW

by Kerry Lynn Macintosh. New York: Cambridge University Press, 2005. 288pp. Hardback. £16.99/$29.95. ISBN: 0521853281.

Reviewed by Zvi H. Triger, The College of Management, School of Law, Rishon LeZion, Israel. Email: zvit [at] colman.ac.il.

pp.165-167

Kerry Lynn Macintosh’s new book, ILLEGAL BEINGS: HUMAN CLONES AND THE LAW, offers a thorough and enlightening study of the socio-legal acceptance of reproductive human cloning. When it comes to human clones, argues Macintosh, the socio-legal reaction has been a wholesale pre-emptive rejection of the notion, based, for the most part, on misinformed notions of reproductive cloning and its social, legal and scientific ramifications.

Reproductive cloning is a form of asexual reproduction that will allow, when it becomes technologically available in humans, infertile men and women to conceive children to whom they will be genetically related. Cloning technology might be useful also for fertile men and women who carry genetic diseases and who risk passing down these diseases should they reproduce sexually.

Despite these clear benefits, cloning has already been outlawed in several states, and Congress is also considering a national ban on it. Moreover, the public seems to agree with the criminalization of this technology, feeding on science fiction and horror movie images of massive herds of zombie-clones taking over the world and destroying humankind. The modern myth of Frankenstein, argues Macintosh, plays a central role in igniting this moral panic against human reproductive cloning (for a brilliant analysis of the Frankenstein myth in our culture see Kamir 2001).

So why are we so afraid of human clones? Macintosh identifies five false notions that she believes “reinforce and inspire stereotypes about human clones:” first, that human cloning is an offence against God and nature; second, that cloning human beings objectifies and commodifies them; third, that human clones are copies of other human beings and therefore lack individuality; fourth, that being a form of asexual reproduction, cloning threatens the survival of humanity because it undermines genetic diversity; and finally, that human clones might suffer from serious birth defects and have an extremely low life expectancy.

Macintosh offers her replies to each of these notions, and in doing so, she plays, at least partially, into the hands of those whom she criticizes. Take, for example, the first argument, according to which cloning offends God and is unnatural. Instead of trying to explore the cultural meaning of this argument and its underlying ideology, Macintosh seems to struggle with the actual theological questions of whether there is a god and how, if at all, can we know what he or she thinks about cloning. She concludes that some believe that God would support cloning (for example, some [*166] Jews), while others would condemn it (Roman Catholics).

The analysis of what is “natural” is similarly problematic, since it takes on the terminology of the cloning critics instead of critically examining their ideology. In my mind, what is common to the God/nature objection to human cloning, and what is missing from Macintosh’s critique of it, is one important concept—patriarchy. In other words, the God/nature line of thought is concerned with the loss of male dominance in society. Macintosh quotes a revealing passage from the California Advisory Committee on Human Cloning (2002) which very candidly admitted this concern: “In addition, it could theoretically render males reproductively obsolete.”

But the rest of the paragraph, which Macintosh does not include, reads as follows:

All that is needed to clone a human being are human eggs, somatic cell nuclei, and uteri; and a woman can supply all of these. A system of reproduction that renders males obsolete also renders the “natural” method of human reproduction obsolete. Those opposed to human reproductive cloning on these grounds worry that the process will run counter to and even harm nature. On this view, the intent “to improve on nature” through reproductive cloning has been considered an overstepping of natural limits, human “hubris of enormous magnitude.”


In other words, the authors of this report are suggesting that “nature,” in the eyes of those who oppose human cloning on this ground, equals male involvement in and control over the reproductive process, or, in another word, patriarchy. Thus, the process through which patriarchy has become the natural human condition in our culture (Gilligan 2003) is, in my mind, the key to understanding the God/nature objection. One can see that very same cultural story in the history of the acceptance of artificial insemination, a technology that has been available since the eighteenth century, but was only legitimized in the 1930s (Bernstein 2002). One of the reasons for this prolonged delay was the belief that the doctor performing the AI and the woman being inseminated by him were committing adultery, and the need to legally overcome this notion.

The other objections to human cloning are less ideological and stem more from ignorance: Macintosh dispels them very effectively and shows that the danger of baby commodification in the context of human cloning is no more realistic than in the context of in vitro fertilization (IVF) or certain types of adoption. She also argues very persuasively that human clones are not copies and thus their individuality is not at all compromised, and, finally, a significant amount of data is quoted in order to show that we are not facing the doomsday prophecies of the end of humanity due to the demise in genetic diversity and the birth of baby clones who suffer from severe defects (as Macintosh shows, these same concerns were voiced in the late 1970s, when IVF was new).

Having discussed these objections, Macintosh turns to analyze anticloning legislation. Among the states that enacted bans against human cloning are Arkansas, Iowa, Michigan, North [*167] Dakota, and South Dakota. Macintosh argues that the various laws were inspired by the five objections analyzed in the first part of the book (and proved false). She argues that these laws are unconstitutional, because they violate the Equal Protection Clause by creating what Macintosh calls “existential segregation,” meaning “they are intended to prevent the birth and existence of human clones” (p.98).

Macintosh locates this legislation within the historical context of antimiscegenation legislation and maintains that in the same way that antimiscegenation laws tried to prevent the birth of mixed-race children, so as not to threaten racial segregation, anticloning laws have a similar effect. Nowadays, Macintosh seems to imply, the fear is directed towards non-traditional family structures: for example, single-parent or same-sex parent families. Recently such families have been able to adopt or to have children with the assistance of a surrogate mother (only in some jurisdictions), but the idea that these families might have genetically related children without outside assistance is perhaps too outrageous for some, and it is definitely too challenging for the heterosexual/patriarchal social order.

Indeed, the family structure is undergoing radical alteration, and many find these changes objectionable because they threaten their most fundamental beliefs. Reproductive technology leads many of the most controversial changes, because it transforms our notions of kinship, and challenges our imagination in previously unpredictable (and unimaginable) ways. Kerry Lynn Macintosh’s new book is a thought-provoking contribution to a fascinating conversation about one of the most fundamental institutions in our society, and the ways in which technology shapes it and allows us to re-envision and re-imagine it.

REFERENCES:
California Advisory Committee on Human Cloning. 2002. Report: “Cloning Californians?” Located at http://www.scu.edu/ethics/publications/adbdreport.html (visited February 20, 2006).

Bernstein, Gaia. 2002. “The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination.” 77 WASHINGTON LAW REVIEW 1035.

Gilligan, Carol. 2003. THE BIRTH OF PLEASURE: A NEW MAP OF LOVE. New York: Vintage Books.

Kamir, Orit. 2001. EVERY BREATH YOU TAKE: STALKING NARRATIVES AND THE LAW. Ann Arbor, Michigan: The University of Michigan Press

© Copyright 2006 by the author, Zvi H. Triger.

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WHALING DIPLOMACY: DEFINING ISSUES IN INTERNATIONAL ENVIRONMENTAL LAW

by Alexander Gillespie. Northampton, MA: Edward Elgar Publishing, 2005. 544pp. Hardback. £95.00/$160.00. ISNN: 1-84542-107-8.

Reviewed by Christopher C. Joyner, Department of Government and Edmund A. Walsh School of Foreign Service, Georgetown University. Email: joynerc [at] georgetown.edu.

pp.160-164

This volume concerns the plight of marine creatures and the ways, means and strategies adopted by governments to govern their existence. More specifically, WHALING DIPLOMACY analyses the present legal and conservation situation of cetaceans—whales, dolphins and porpoises—as living marine resources in the world’s ocean. Unlike fish, these creatures are warm-blooded mammals that breathe air, bear live young, and nurse them on milk. Cetaceans play an important role in the life of the ocean, as they serve as benchmarks for the entire marine ecosystem’s health and well-being.

This work is well written, authoritatively argued, masterfully thought out, and extensively documented with references from primary sources. The author, Alexander Gillespie, is Professor of Law at the University of Waikato in New Zealand and no stranger to the subjects of whaling and marine resource conservation. As acknowledged early on in this work, his views on the law, ethics and politics of whaling diplomacy became anchored in some fourteen journal articles published in major law reviews over the past five years. This finished book product, however, furnishes a compelling assessment of the political obstacles that confront modern international environmental law for ocean space.

This volume is divided into three substantive parts and a conclusion. Part I deals with “numbers and threats,” and begins with a brief history of whaling, followed by an assessment of how individual whale species are managed. Gillespie is right to devote considerable attention to the nature of environmental threats that jeopardize the survival of cetaceans. Historically, the greatest threat was over-harvesting, and we still are prone to think that that remains the case. But Gillespie makes clear that other factors now may pose even greater dangers to cetaceans. Among these are collision with ships, entanglement in fishing gear (and becoming discarded as “throw-away” resources usually referred to as “bycatch”), the increasing affliction of cetaceans to manmade pollution and the degradation of their ocean habitat. Anthropogenic environmental change, especially erosion of the ozone layer and the introduction of persistent organic pollutants into the marine environment, may well become the most serious threat. Given these impending dangers, some cetacean species and tens of thousands of creatures will be lost in coming decades. The response of the international community, Gillespie cogently contends, must be more resolute and proactive in setting and enforcing policies aimed at halting these threats. [*161]

The main actors in the present international community are 191 independent states. Of these, sixty-six have explicitly agreed to adhere to an international regime that regulates whaling. That regime is comprised of customary principles and formal rules codified in two major multilateral instruments, the 1946 International Convention for the Regulation of Whaling (ICRW) and the 1982 UN Convention on the Law of the Sea (UNCLOS). Gillespie makes clear the current international law for whaling: General or customary international law permits nationals of all states the right to harvest whales on the high seas, unless the state of their ship’s registry or flag has agreed otherwise. In addition, each coastal state retains control over cetaceans within the limits of its offshore territorial jurisdiction, subject to obligations in its international agreements, with sole authority over activities of its nationals on the high seas.

The credibility of this regime rests on the ability of the International Whaling Commission (IWC), the institution created under the ICRW for setting whaling rules and policy, to use the best scientific evidence available for rendering decisions that affect the management of whales. This is not merely a matter of desirable policy; it is a matter of law, mandated by UNCLOS and uniformly viewed as general international law binding on all states. Article 119 of UNCLOS declares that, in establishing conservation measures for fisheries on the high seas, states shall “take measures which are designed on the best scientific evidence available to the States concerned.” No question exists that, if authoritative decisions are to be enacted as effective policy, any basis for action regarding the management of whaling must rest on the best scientific evidence available. Yet, deliberations in the IWC often treat science as irrelevant for specific decisions, largely because scientific facts complicate the politics affecting the international management of whaling. As Gillespie makes clear, to allow science to be continually disregarded by the IWC endangers not only whales and other living marine resources, but also undercuts the credibility of the treaty implementation process and neglects the impacts stemming from other environmental problems. Those are unduly high prices to pay for the political convenience of some member states.

Part II examines questions of ethics in international environmental law associated with whaling. Arguments made in the IWC by Japan, Norway and like-minded governments assert that the “humane killing” of whales entails a reasonable rationale for hunting them. One cannot help but wonder, as Gillespie does, how killing can be made humane, especially when the harpoon—a massive metal spear-like projectile fired from a ship-board cannon that smashes into the flesh of a whale—is used to kill the animal. Then there is the philosophical notion of “scientific whaling” used by Japan in the IWC to justify its nationals taking these creatures. To what extent can “scientific activities” using living, non-human subjects for tests be permitted “in the interest of science”? If whales are truly [*162] endangered, why should they be hunted at all? Even if sustainable limits are set for whales, which could make whaling a legitimate activity, does that ipso facto make killing whales ethically right? What about aboriginal substance whaling and the role of indigenous peoples under international law? Have justifications for whaling under these circumstances been manipulated through euphemistic notions of “non-commercial utilization,” “nutritional need” and “local consumption”? Gillespie’s arguments highlight the reality that man is not master of the earth and his science does not exist in an ethical vacuum. We must realize that humans are but one species on this planet, and we should respect the right of other creatures to coexist with us. His call for ethical integrity as a necessary ingredient for deliberating the merits of such culturally relativistic rationalizations seems compelling, sensitive and thought-provoking.

The third part of WHALING DIPLOMACY examines how and what statesmen have done to make international legal rules and design intergovernmental institutions for the protection, conservation and management of cetaceans. At least 149 states are party to the UNCLOS. Accordingly, customary law and the conventional law in UNCLOS furnish most states the regime for using ocean space, including the rules for harvesting living marine resources. It is interesting to note that only a few parties to the UNCLOS favor or support the harvesting of cetaceans. Many more governments support fishery operations that accumulate by catches of marine mammals, including small cetaceans. Given these agreements, what legal effects are generated relevant to the general freedom to harvest whales? The UNCLOS affirms (in articles 87 and 116) that the nationals of all states are free to take living resources on the high seas, subject to their treaty obligations and to UNCLOS itself. No provision in UNCLOS otherwise prohibits whaling. Likewise, the principal instrument for regulating whaling, the ICRW, contains no provision that specifically prohibits whaling activities. Consequently, under current international law, nationals of all states are free to exploit all living marine resources, including cetaceans, in the high seas beyond national jurisdiction. Even so, the governments of these nationals’ flag states are obliged to prescribe conservation measures for nationals engaged in such operations and to cooperate with other governments toward that end.

Gillespie makes a powerful argument that the need to take precautionary action should apply to the enforcement of compliance in any revised management regime for whaling. All phases of such a system need careful attention including monitoring, surveillance, inspection, reporting, adjudication, trial, and penalty. It is common knowledge that securing the adequate performance of these operations is among the most difficult accomplishments of international fishery management efforts. Relatedly, innovations in technology for surveillance and monitoring should be factored into conservation strategies. Positive fallout from the Cold War’s end includes greater potential for civilian use of [*163] military sensing systems in the oceans. These technologies extend not only to vessel operations but to whales themselves. It is conceivable that these innovations may contribute to the negotiability of new agreements on enforcement by lending greater credibility and timeliness to observations and to scientific data.

Gillespie treats in detail the creation of whale sanctuaries in the IWC, as well as various roles of the IWC committee system for managing small cetaceans. The legal ramifications stemming from international agreements, especially the ICRW, the UNCLOS and the Convention on International Trade in Endangered Species, as well as implications spun off from the worldwide establishment of exclusive economic zones, are critically addressed. Among the most important analyses in this work is Gillespie’s indictment of the IWC’s pervasive non-compliance with its own rules and goals throughout its history. He also notes the IWC’s need to secure a new inspection and monitoring regime. It seems incredible, but the international institution responsible for managing activities affecting the largest creature inhabiting the planet intentionally opts to remain hamstrung by anachronistic observation procedures and outdated catch documentation schemes. Such liabilities undercut the IWC’s functional efficiency and encumber its ability to enforce compliance.

Finally, Gillespie discusses the legal nature of reservations to treaties and the complications they posed for the IWC when Iceland sought to rejoin the ICRW in 2001. As he observes, transparency in international law remains an issue usually receiving scant attention. In the case of the IWC, this issue looms large, especially in the degree to which nongovernmental organizations can get access to information concerning committee discussions and deliberations. Much to its credit, as Gillespie observes, the IWC increasingly has opened its door to outside media attention, resisted secret voting and maintained certain accountability for its decisions.

Clearly, this volume will be welcomed as an indispensable intellectual resource by laymen, scholars and policy-makers alike who are seriously interested in the modern plight of whales, especially the need for new attitudes dedicated to marshalling diplomatic initiatives for implementing and enforcing effective conservation policies. In this regard, WHALING DIPLOMACY makes a simple plea. If people are serious about the need to protect and conserve whales, the debate must be framed within the context of ethics, politics and law. Gillespie is right; this view embraces a salient concern. All too often discussions about whaling become intertwined with and complicated by considerations of national interest, local constituent rights, and cultural sensitivities. Consequently, such discussions degenerate into confrontation and conflict, with little being accomplished save for ill will and political resentment. Real changes are needed in national priorities and long-term perceptions of national interests for multilateral institutions to implement and enforce policies that offset tactics of political cajoling and intimidation by a few governments. If the past is prologue, [*164] making this happen will remain the major challenge confronting cetacean diplomacy in the years ahead.

© Copyright 2006 by the author, Christopher C. Joyner.

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WOMEN, LAW AND HUMAN RIGHTS: AN AFRICAN PERSPECTIVE

by Fareda Banda. Oxford: Hart Publishing, 2005. 320pp. Hardback. £25.00/$50.00. ISBN: 1841131288.

Reviewed by Catherine Lane West-Newman, Department of Sociology, The University of Auckland, New Zealand. Email: l.westnewman [at] auckland.ac.nz

pp.156-159

This is a long and comprehensive book whose range defies effective reduction to a short review essay. I cannot hope to do justice to the detailed scholarship and commitment that created it. What I can do, however, is to give a sense of its richness that will, I hope, lure you to read it. Too little is known in the west about Africa in general and African women in particular. Those of us who involve ourselves in the discourse and practice of human rights law have particular need to know more about the possibilities and impossibilities of transplanting such thinking to places generally regarded as ‘other’ to the western world. There is also value in subjecting our own assumptions to the thoughtful gaze of those whose world taken for granted is quite different from our own.

Fareda Banda describes her project, and the experiences that prompted her engagement with these fraught and complex issues, in an introductory chapter which also provides brief conceptual clarifications of some key terms and ideas through which her discussion is framed. Her intention is to examine the position of women in Africa and to discover whether law might have a part to play in their struggle for empowerment and if so, what form that might take. Banda grew up in Zimbabwe and is a Lecturer in Law at the School of Oriental and African Studies within London University. Both these experiences have, through personal experiences which are described in the preface, contributed significantly to her involvement with the subject of this book. The African Law section of the School of Oriental and African Studies, where I was a student in the early 1970s, has a long association with many of the states which, pre-independence, comprised the African arm of the British Empire (on which, it was said, the sun never set – such was its geographical diversity and extent). That legacy of European imperialism still colors the legal systems of many African states. The gender inequalities which are Banda’s particular concern, although probably exacerbated by European influence, may also predate it. Here, as in many other colonized societies, debate continues over the extent of pre-European contact gender inequality which characterized local social arrangements and traditions.

In presenting an explicitly feminist analysis of the problems faced by African women in the present day world, Banda sets her discussion on a solid base of clearly described feminist legal theory which supports and offers coherence to the explication and argument. Feminist legal theorists have been particularly effective in uncovering and demystifying the many ways in which social customs and cultural practices – including those [*157] grounded in religion – isolate women in the ‘home’ (or private sphere) and undermine their capacity to function as effective agents in the public world of civil society. In this case the particular focus is on hindrances to their ability to acquire and manage property and thus achieve economic independence from male tutelage. It is also on the social ills attendant on this inability that afflict so many women, including those of Africa – sexual violence, reproductive wrongs, female genital cutting, poverty and more.

The feminist theory employed in this book is the creation of what the author describes as ‘non-western feminists’ and those who write from a non-western perspective – a framing which allows the inclusion of, for example, African American and postcolonial theorists who work in Anglo-American contexts. The terminology she uses is of ‘north’ and ‘south’ feminists rather than the perhaps more commonly used ‘the west’ and ‘the rest’ distinction; this is a useful and generally more appropriate terminology (though just slightly confusing for those of us who live under ‘first world’ social conditions within the southern hemisphere). For readers not well acquainted with this strand of feminist thought, Banda’s outline of its important critiques of western feminism in relation to the women and concerns which are the focus of this book are a useful corrective to the lens of Eurocentric (in the sense of white western) feminism. For example, she points out that “feminism’s roots in western gender politics” creates difficulties for those who seek to use a feminist analysis outside the societies where it began. Questions, drawing from the work of Oyewumi (1997), are noted about “the suitability of transposing western critiques of patriarchy on to non-western societies” (p.9). Amadiume’s twenty year old critique of ‘victim imperialism’ – the white feminist practice of “using the experiences of black women to highlight gender discrimination” – is reiterated. Banda also points out the more recent assertion by south feminists of an important socio-economic dimension to the differences between north and south feminism in that northern economic dominance has a significant negative impact on the lives of women in the south (p.8). The detailed discussion that follows needs to be read in the light of these important reminders.

Chapter Two describes the evolution of legal systems after colonization, the different positions on the nature of customary law developed after this time, the issue of cultural difference and equal treatment for women as provided for in the constitutions of three states and some case law interpretations of those constitutional provisions in relation to inheritance laws that discriminate against women. In effect this sets the scene for the reader by giving practical examples of the shape women’s antidiscrimination rights issues may take within the current legal configurations where constitutional protections against discrimination may be invoked.

Chapter Three traces the development of human rights thinking and translation into legal provisions in Africa. Banda documents the extent of engagement with human rights instruments, pointing [*158] out that, although left out of the early drafting, 48 states on the continent are parties to the International Covenant on Civil and Political Rights 1966, and 45 to the International Covenant on Economic Social and Cultural Rights 1966. At the same time she notes the essentially ‘western’ construction of the norms and assumptions inherent in rights discourse and a similar influence in claims to custodianship of its content. Rights issues relating to women, however, have always been difficult. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women draws heavily on CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) which, despite extensive ratification by African States, has remained effectively unimplemented in any practical ways. Adopted in 2003, that protocol has civil, political, socio-economic and cultural rights. “It is the first human rights instrument to have substantive provisions on reproductive rights and to make (limited) provision for the right to abortion. It prohibits harmful cultural practices and confronts and controversial issue of genital cutting . . . [proscribing it] even if performed in a medical establishment” (p.81). But more than a year after its adoption only five states had ratified it. Nevertheless, Banda believes that even though there are serious ‘sticking points’ over issues related to ‘private sphere’ rights, “the recognition of women’s rights at the institutional level is an important gain upon which women need to build by holding states accountable for the violations of their rights” (p.83). The Charter thus creates a platform for women to work toward real change in their own communities.

Subsequent chapters consider these issues in more specific contexts – family law, violence against women, reproductive rights, and the rights of girl children especially in relation to female genital cutting. This leads into a discussion of culture and the problems of reconciling it with human rights norms, rights-based approaches to development issues and women’s participation in public and political life. She concludes that, while “human rights cannot conjure up resources that do not exist” nor effect global redistribution of resources, “the growing jurisprudence on socio-economic rights shows that in some instances it can force states to re-think the internal and international distribution of resources” (p.310). For women, that (together with international agreement on some “baseline standards”) constitutes a move toward legal, social, and political recognition of their humanity. As critical race theorists have often pointed out, when you have few or no rights in your own society, then rights thinking may be flawed and inadequate to the magnitude of its task – but it is undoubtedly better than nothing.

As a resource for materials about human rights in Africa this book may well be in a class of its own, with fifty-five pages of bibliographic references, as well as reproductions of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003 and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979. As a contribution to [*159] the international human rights literature, it is a substantial source for teaching and for future research in the field.

Accepting that the human rights movement is not universally recognized or approved as the appropriate panacea for all social ills and inequalities, this book nevertheless takes the idea of rights seriously and measures its viability against success and failure of such norms to “challenge gender ascriptions within the African continent” (p.3). In one sense it is a quite specialized book – it is about the details of African women’s lives and the differences that rights law might make to them. It is about the negotiating and shaping drafts of ‘rights on paper’ and finding a way through the problems and problematics of the cultural relativism debates. But on another level it also operates as a broad critique of rights thinking and practice so as to pose critical questions and challenges relevant to all who are interested in the strengths and weaknesses of human rights as a means toward a more just and equal world.

REFERENCES:
Amadiume, Ifi. 1987. MALE DAUGHTERS, FEMALE HUSBANDS: GENDER AND SEX IN AN AFRICAN SOCIETY. London: Zed Press.

Oyewumi, Oyeronke. 1997. THE INVENTION OF WOMEN: MAKING AN AFRICAN SENSE OF WESTERN GENDER DISCOURSE. Minneapolis: University of Minnesota Press.

© Copyright 2006 by the author, Catherine Lane West-Newman.

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PUNISHMENT AND POLITICS: EVIDENCE AND EMULATION IN THE MAKING OF ENGLISH CRIME CONTROL POLICY

by Michael Tonry. Devon, UK and Portland, Oregon, USA: Willan Publishing, 2004. 176pp. Hardback. £37.50/$59.95. ISBN: 1-84392-063-8. Paper. £16.99/$29.95. ISBN: 1-84392-062-X.

Reviewed by Ann Chih Lin, Ford School of Public Policy, University of Michigan. Email: annlin [at] umich.edu.

pp.153-155

Confronted with academics who have become policy critics, journalists and politicians often hint darkly that scholarship has been corrupted by political opinion. Such criticism is usually easy to refute: an academic’s only claim to an audience is her intellectual integrity, and the stakes for violating its canons are much too high to risk. The more common problem that academic commentators face is different—not too little intellectual integrity, but too much love for expertise. Confronted with careless, internally contradictory, or misconceived policies, the best academics can be provoked into a leap of logic—no policy so stupid could be anything but the result of malice aforethought.

Michael Tonry is one of criminology’s most perceptive scholars of policy. In a dizzying array of books and articles, he has evaluated misguided policies and explained their effects, sifted through the shibboleths of the field to uncover its enduring principles, and used his encyclopedic knowledge of policy tools to suggest approaches that work. But Tonry’s expertise can also lead him first to be impatient, then to ridicule, and in PUNISHMENT AND POLITICS, he displays both. PUNISHMENT AND POLITICS purports to “disentangle the influences of evidence, ignorance, ideology, and self-interest” (p.ix) on Great Britain’s 2003 Criminal Justice Act, which might lead some – particularly political scientists – to expect a book about the policy process. What they will find instead is an indictment of anything-not-in-accord-with-best-practice as, by definition, unjustifiably ignorant, viciously ideological, and/or crassly and myopically political.

Tonry’s ire seems especially great because of the Labour Government’s professed intent to make “evidence-based policy.” Under Tony Blair, New Labour, much like “New Democrats” in the United States, advertised itself as a party that would never let ideology trump competence. In actuality, Tonry charges, competence trumps only when ideology has little to say. Thus on small issues, such as granting prosecutors the authority to determine criminal charges (pp.6-7), or giving judges and magistrates broad authority to use “community punishment” (in the U.S., “community corrections”) as a sanction (pp.7-8), Tonry sees policy based on “empirical research . . . professional experience and simple observation” (p.7). But where research, experience or the observation of commentators like Tonry differ from New Labour’s proposals, Tonry sees malfeasance. Suspended sentences (as opposed to clear-cut decisions between [*154] imprisonment or community sanctions)? Sentencing commissions dominated by judges? Mandatory minimums? Indeterminate sentences for violent or sexual offenders? Changes in criminal procedure? To Tonry, “Ignorance of the evidence isn’t credible. Senior Home Office research and policy specialists know better. Ideology and political self-interest, a wish to appear tough before the media and the public, is what’s left” (p.12).

Assume, for the moment, that the evidence on the damaging and useless nature of each of these proposals is incontrovertible. To say that the opposite of “evidence” is “ideology and self-interest” is an extraordinarily odd way to define any of these terms. Taking positions in accord with both evidence and ideology – to say nothing of evidence and self-interest – is how most politicians, as well as most ordinary people, get through the day. More to the point, if one were to make a serious argument about the victory of ideology over evidence, or political expediency over expertise, one would want to see evidence of bureaucratic and legislative deliberation, interviews with politicians in which they struggled (or did not) with these dilemmas, positions changed in response to public outcry, or indicators of ideology and explanations of its variation.

Tonry offers some of this, but not in a sustained fashion. Thus, Chapter 2 presents marvelously useful and intriguing tables listing “crime summits,” “crime initiatives,” and abandoned “knee-jerk crime policy proposals,” all of which prove to Tonry that the Labour Government will always choose to be “tough” rather than responsible on crime. Most political scientists would argue the opposite, that media events and proposals without follow-through are evidence that a government is not committed to a particular policy approach. These are cheap ways of pacifying a constituency, not indications of deep-seated ideology or political gain. Similarly, Chapter 3 goes into an extended discussion of English exceptionalism. But to argue that the English (and Americans) prefer risk reduction, debasement, and punitiveness lets politicians off the hook too easily for proposing risk-averse, debasing, and punitive policies. Unless one is to believe that culture is both immutable and inexorable, the right political question to ask is why these aspects of the culture triumphed over others in crime policy – and whether evidence-based arguments could co-exist with, or function within, this cultural frame.

To be fair, however, Tonry does not claim to be a political analyst, even though his rhetoric wanders in that direction; he is an expert on crime policy, and in that role there are few better. In the last three chapters of PUNISHMENT AND POLITICS he returns to policy, and his short essays on racial disparities in punishment, on sentencing commissions, and on violent crime present data and proposals for reasonable laws in each of these areas. Those familiar with Tonry’s work will not find anything very surprising in these proposals, and in a way that is his point. So much is known about the deleterious effects of current policies, and the [*155] solutions for ameliorating those effects are so obvious, that Tonry believes all people of good will should be able to agree on them. Nevertheless these proposals, gathered together and counterpoised to current British (and American!) policies, are a handy reference to the “best practices” in sentencing reform – some (especially in the design of sentencing commissions) that have been successfully tried, and others (especially in the area of racial disparities) that are, in their political difficulty, instructive.

Readers of all backgrounds can use PUNISHMENT AND POLITICS as a chronicle of a particular policy moment in British criminal history – the kind of period reference that policy historians will want as a starting point, and polemicists will want to debate. American readers in particular can benefit from Tonry’s thorough description of English policies that look startlingly like our own. In the end, though, Tonry’s goals for this book will primarily be achieved by those who can take his rhetorical question seriously: how might less harmful, more productive crime policies be enacted? While this book will not give them the answer, it keeps the necessity of the question at the top of the agenda, where it should be.

© Copyright 2006 by the author, Ann Chih Lin.

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LAW CODES IN DYNASTIC CHINA: A SYNOPSIS OF CHINESE LEGAL HISTORY IN THE THIRTY CENTURIES FROM ZHOU TO QING

by John W. Head and Yanping Wang. Durham, North Carolina: Carolina Academic Press, 2005. 280pp. Cloth. $45.00. ISBN: 1-59460-039-2

Reviewed by David Gurnham, School of Law, University of Manchester, U.K. Email: david.gurnham [at] manchester.ac.uk

pp.149-152

When Bertrand Russell set out to compile his HISTORY OF WESTERN PHILOSOPHY, he sought to explain human experience as the gradual and logical evolution of thought until its ‘modern’ analytic form. John Head’s and Yanping Wang’s review of Chinese legal history seems to adopt a similar theme, that of trying to show that a period vast in span and tumultuous in its events, can be viewed as a fairly ordered unfolding. Over the course of less than 250 pages, the authors attempt to present thirty centuries of political philosophy and legal history as a coherent narrative. The authors are the first to admit that such a wide sweep of history cannot be accommodated without some implications for depth, although the writing is engaging from the start. The first eight centuries of the story – the Zhou (Chou) Dynasty in which the major competing schools of thought of Confucianism and Legalism are explained – is dealt with between pages 23 and 59. The authors cite the Zhou Dynasty as the first significant period for studying Chinese legal history, since it was the kings of the Western Zhou (1100 BCE to 771 BCE) that developed the ideas on which Confucius modeled his own philosophy around 500BCE and thereby exerted his immense influence upon the remainder of Chinese intellectual history. Head’s and Wang’s text flows with such pace that dynasties rise and fall at a dizzying rate. However, the authors constantly remind the reader that, despite several changes of political control, the influence of foreign ideas and military invasion, and sustained periods of division and inter-state war as well as imperial unification, law in Dynastic China remained very much a force of conservatism and continuity. Of course, unlike Western nation states, imperial China (which existed until 1911) never evolved into a modern industrialised country, and the authors make various references to the possibility that it was the very resilience of Chinese political and legal doctrine in the face of change that ensured its demise as a great power towards the end of the last (Qing) dynasty.

It is the fact of Imperial China’s conservatism that makes Head’s and Wang’s book possible at all, as it allows the text to be dominated by discussion of just two foundational schools of thought (Confucianism and Legalism). These are introduced in the first two chapters, leaving the rest of the book to develop the chronology of Chinese legal history. For example, the legal code compiled in 653 CE and revised in 737 in the great Tang Dynasty, forms the basis of codified law for the next 1000 years. It survived even the devastatingly successful invasion by the Mongols in the 13th Century and their Yuan [*150] Dynasty, who were eventually forced to abandon their hopes of replacing it with distinctly Mongol forms of law. Perhaps the period of pre-20th Century Chinese military History best known to western readers, it is generally regarded as having no great or lasting impact on Chinese law. Head and Wang do not really challenge this conception, although they do include a brief quotation from another commentator who complains that the Mongol influence has been underestimated.

The theme of ‘codification’ provides the book’s focus and allows the details of Chinese legal philosophy and history to be ordered in a way that is meaningful for lawyers. Western readers will perceive a fairly familiar plot within in the unfolding narrative of repeated violent rebellion followed by codification of legal norms. The text is thus tailored towards narrating the relationship between the Chinese state and written law, and between Chinese philosophical understandings of man’s proper place within the family and the state. The book devotes a certain amount of time to explaining the fluctuating significance of cosmology in Chinese legal philosophy, both in terms of establishing the Heavenly legitimacy of emperors and also beliefs regarding the significance of certain punishments. For example, we are informed that the Qing code of 1646 CE stipulated two forms of execution: beheading and strangulation. Although strangulation was a slower and more painful death, beheading was regarded as the more severe punishment, since it was believed that the spirits could not continue to inhabit a divided body.

The authors give the impression that the only significant schools of thought for the development of Chinese law codes were the arguably incompatible Confucianism and Legalism, which nevertheless seem to find a way of complementing each other and forming the broad basis for a legal order of astonishing longevity from the time of the Han dynasty (206 BCE – 220 CE). These schools of thought are very much brought to life in the text. We learn something of the life of Confucius himself: convinced of the transformative power of education and rule by virtuous example rather than punishment, he was forced unwillingly into the role of teacher by his lifelong failure to win any political position from which he could put his ideas into practice. The history of Dynastic China is narrated by Head and Wang always with an eye on which of the two main schools of thought seemed to be the more influential. In the section on the first successful unification of the whole of China (under the Qin dynasty 221 – 206 BCE, following the collapse of Zhou), the authors gleefully recount how Qin Shi Huangdi (the first ruler of China to declare himself Emperor) destroyed the ancient classical texts, including Confucianist writing that conflicted with the Legalistic perspective. This act of anti-intellectual vandalism (which the authors resist comparing to the Babelplatz book burning in Hitler’s Berlin) is made all the more poignant by the Qin’s dramatic collapse just 14 years after its triumphant success, to be replaced with the more Confucius-friendly Han Dynasty. Although Head and Wang acknowledge the popular influence of Daoism and Buddhism, such ideas fit rather [*151] awkwardly into the otherwise binary presentation of intellectual competition between Legalism and Confucianism. Although we learn that both schools of thought enjoyed popularity amongst Chinese people in the period of division and war between the fall of the Han Dynasty and the rise of the Tang Dynasty (220 – 617 CE), these do not seem to have detracted to any great extent from the codification of Legalist and Confucian doctrines in law. As a foreign import, Buddhism was highly significant, but suffered the problem that it had to be translated in the context of deeply entrenched cultural norms inherited from Confucianism (p.108).

The book is at its most impressive in its accounts of the primary and secondary literature. The primary sources on codified law in early Dynastic China are sparse indeed, despite the high status accorded to the written word. We learn, for instance, that the earliest manifestation of Legalist codes of punishment were inscribed on bronze cauldrons and pots handed down and preserved by the Eastern Zhou kings of the 6th Century BCE as symbols of legitimate power. However the pots themselves are long since lost, and the authors inform us that we only know of these sources from later examples and from secondary sources (p.51). Written law codes from the earlier ‘Western’ Zhou dynasty do not exist because of the Western Zhou kings’ adherence to the concept of li: the system approved and promulgated by Confucius which shunned written laws to a great extent in favour of rule by the virtue and good example. The actual texts of the great legal codes of other dynasties have also either been lost or survive in fragments. The code issued in the Han Dynasty (206 BCE – 220 CE) in which Confucianism first gained formal acceptance in law alongside a weakened Legalism inherited from the brutal Qin Shi Huangdi, for example, is almost entirely lost. Head and Wang dutifully inform us that their commentary is therefore based on the work of the Western author, Hulsewsé, who himself relies on fragmentary secondary evidence of the 13th and 19th Centuries CE (p.91). Curiously, law codes from the earlier Qin dynasty do survive, and the authors refer to legal texts carved into bamboo excavated in the 1970s from a 3rd Century BCE grave. Throughout, Head and Wang are clear about their sources: the extent to which primary documents are available, and the fragmentary nature of the sources for existing translations.

The book reads for the most part as an introductory text: the first chapter introduces the reader, not only to an overview of the thirty centuries of Dynastic Chinese rule, but also to Chinese language itself and to the basic Chinese legal concepts also. The authors present a summary of the profound differences between the Chinese and Western languages and the problems posed by the difficulties of translation. There are text and illustration boxes showing the changes from one dynasty to the next, development of legal and philosophical ideas, statutes on punishment, maps indicating the reach of the various empires, and so on. All of these provide crucial tools for the reader coming to the subject for the first time. This use of visual and tabular aids is [*152] entirely appropriate given the intended readership, and consequently there is a certain ‘text and materials’ feel to the book. There are several passages in which the authors allow other secondary commentaries to do the explaining. There are times when this feels like something of an abdication of responsibility on the part of Head and Wang, since there are a number of places where an extract from a single commentator’s work is given the task of explaining a potentially controversial concept or event with little or no comment from the Head and Wang themselves. However, the authors are sensitive to the fact that much of Chinese legal history is given to different interpretations. On the question of when written law was first publicly promulgated, we are presented with the competing views. Head and Wang consider the written evidence, consisting of correspondence between scholars and politicians. In any event, the use of lengthy quotations can be seen as consistent with the overarching value of this book in introducing the first-time reader to the various sources, secondary and primary.

Head and Wang have presented an account of Chinese legal history that is bold and refreshing in its style. Punctuated as it is with grisly and sometimes amusing anecdotes, I have never enjoyed reading a book of History so much since Terry Jones’ THE CRUSADES. However, it is also a serious book. Despite the breathtaking speed with which the authors drag the reader through the highs and lows of Dynastic China, the authors are careful in their presentation and are faithful to the sources. The clear and detailed references to the key secondary sources provide the necessary academic rigour that makes this a useful sourcebook for researchers as well as an entertaining read.

© Copyright 2006 by the author, David Gurnham.

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JIM CROW MOVES NORTH: THE BATTLE OVER NORTHERN SCHOOL SEGREGATION, 1865-1954

by Davison M. Douglas. Cambridge and New York: Cambridge University Press, 2005. 344 pp. Hardback. £40.00/$70.00. ISBN: 0521845645. Paper. £15.99/$24.99. ISBN: 0521607833.

Reviewed by Stephen Pimpare, Yeshiva University. Email: pimpare [at] yu.edu.

pp.146-148

While it is chiefly an examination of school segregation in the North in the post-Civil War and pre-BROWN v. BOARD OF EDUCATION period, Davison Douglas begins JIM CROW MOVES NORTH with a review of antebellum battles over school integration – in doing so, he provides a fine context for making sense of the post-1865 history that will follow. So great was opposition in the antebellum north to the education of blacks that there were bloody and deadly riots by whites who were opposed not just to the integration of public schools, but also to the creation of private, segregated schools for African American children. As a result, for most black children in the north, school was no more an option than it was for those in the south. And, as Douglas observes, the scarcity even of segregated schools for blacks ultimately fostered residential segregation, as northern blacks moved closer to those few schools open to their children. The consequences of that would be enduring. This serves as a poignant reminder that we are generally ill-served by focusing too exclusively on the South when we examine race and racist policy in early nineteenth century America, just as the rest of the book is a caution against thinking of school segregation and Jim Crow-style laws and practice in our later history as a southern problem. Perhaps one-third of northern black school-aged children had access to education by the eve of the Civil War (compared to two-thirds of whites), and while there may have been fewer laws on the books in the North that mandated their segregation, the practice was nonetheless widespread. When state courts did weigh in, the results were all too often decisions that would later create the foundation for PLESSEY v. FERGUSON. Conditions were surely better in the north, but that does not mean that they were good.

The rest of the book is devoted to an examination of northern efforts after the Civil War to segregate, desegregate, or resegregate schools. By 1890, most northern states had passed laws abolishing racial segregation in schools – despite significant opposition in many locales – and most state supreme courts upheld and endeavored to enforce them. Douglas shows nicely how litigation was used as one means by which African Americans pressured legislatures to act, just as it would be later. But, as in the Jim Crow south, what the law required and what actually occurred could be very different things, and thanks to the efforts of local school boards, by the turn of the century northern (and western) schools were, in practice, much less integrated than many had hoped, and black children had gained fairly modest improvement in their access to education, although they had made gains. And again, as in the South, whatever burst of Reconstruction reform efforts there may [*147] have been faded quickly, for by the 1930s northern schools were actually more segregated than they had been at the turn of the century. Not until the 1940s and early 1950s – thanks to the black migration north and the attendant changes in the electoral landscape, the powerful new claims for equality made by black war veterans, and the dogged activism of the NAACP – did the explicit exclusion of blacks from public schools and their segregation in them come to an end. Still, because of the residential segregation patterns that had been fostered throughout the century, in 1954 more black children in the north attended segregated schools than at any time before. That would not end with BROWN but would, instead, continue to grow worse.

Douglas offers an illuminating examination of some neglected corners of American legal, political, and racial history, although throughout the book I found myself wishing for less by way of thick description of events city-by-city and state-by-state, and for more by way of explanation, analysis, and a search for patterns. One of the many virtues of JIM CROW MOVES NORTH is that Douglas problematizes efforts at school integration, especially during the post-World War II period, highlighting African American ambivalence or outright hostility to integration in many northern communities – segregation was not championed only by racist whites, and the politics of integration does not always divide neatly along black-white or north-south lines. The consistent attention to that complexity is one of the chief strengths of the book. And, because it so thoroughly unsettles so much of conventional wisdom about the southern nature of Jim Crow law and practice, it should be included prominently in our thinking and teaching about BROWN, in our understanding of the events leading to it, and in our evaluations of its ultimate impact.

Douglas concerns himself with events prior to 1954, but I nonetheless wonder what he would make of the continued de facto segregation of schools in the north today. I suspect this history could shed light on contemporary questions. It was striking, for example, to read Douglas’ description of segregated schools for black children, when communities in the antebellum north were able to erect them at all. They were often cold, dark, dirty, dilapidated, and overcrowded sites in which the expectations of students were low and little real education occurred: more recent laments on the awful conditions in which our poorest children are expected to be taught today echo throughout these pages. The teachers in those black schools were typically paid substantially less than those in white ones, and the least qualified tended to concentrate there as a result. It is similarly difficult not to think of how many of our best urban teachers are recruited by suburban (and whiter) schools and made offers that are hard to refuse – safer workplaces, students with fewer problems in class and at home, more abundant resources, and much higher pay. It is unfair, I realize, to fault Douglas for neglecting to make such connections. Instead, he should be credited for presenting this history so well that it implicitly invites a comparative analysis of contemporary education policy, and raises difficult [*148] questions about our long and continued legacy of segregated schools, even in the north, and about the limited power that both courts and legislatures may have when confronted by the forces of economically-based residential segregation, and by the (albeit softer) racism that still lingers throughout the nation.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

PLESSEY v. FERGUSON, 163 US 537 (1896).

© Copyright 2006 by the author, Stephen Pimpare.

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SANDRA DAY O’CONNOR: HOW THE FIRST WOMAN ON THE SUPREME COURT BECAME ITS MOST INFLUENTIAL JUSTICE

by Joan Biskupic. New York, NY: HarperCollins Publishers, 2005. 432pp. Cloth $26.95. ISBN: 0-06-059018-1.

Reviewed by Craig Hemmens, Department of Criminal Justice Administration, Boise State University. Email: chemmens [at] boisestate.edu.

pp.142-145

In SANDRA DAY O’CONNOR, Joan Biskupic, a veteran Supreme Court reporter for the WASHINGTON POST and USA TODAY, provides a timely, fascinating and insightful account of the life and work of the first woman on the United States Supreme Court. Justice O’Connor has been the swing vote in a number of important 5-4 decisions. While her vote is generally acknowledged as crucial in close cases, many observers have questioned Justice O’Connor’s long-term impact on constitutional law. Her approach to deciding cases has been denigrated as lacking in vision or a consistent theoretical foundation, and her repeated appearance in the majority in 5-4 cases has oft times been dismissed as due solely to her centrist viewpoint rather than a testament to her ability to build a coalition and persuade colleagues of the correctness of her point of view. As Justice Brennan, her frequent opponent on the Court in the 1980s, was wont to say, “all it takes is five [votes].” Justice Brennan was hailed as a great consensus builder, as someone whose political skills allowed him to build a majority in a number of close cases. Justice O’Connor has rarely been given the same credit. Ms. Biskupic’s portrait of Justice O’Connor should go a long way towards remedying this inaccurate depiction.

Ms. Biskupic’s biography is unauthorized. Justice O’Connor guards her privacy fiercely, and has repeatedly refused to comply with interview requests and promised not to release her papers until long after she is off the Court. Despite this lack of cooperation from her subject, Biskupic has done an admirable job of interviewing current and former justices and law clerks, and reviewing the papers of retired justices, particularly those of Justice Powell (who was a mentor of sorts to Justice O’Connor) and Justice Blackmun (who apparently kept everything he ever wrote or received from his fellow justices). Biskupic is also able to build upon her fifteen years of covering the Supreme Court. The book is extremely well-documented.

Ms. Biskupic has written a book that is both accessible to a lay audience and of value to a scholarly audience. While constitutional scholars will learn little about the written opinions that they did not already know, there is quite a bit of information on the interpersonal relations of the justices. Some would call this gossip; I prefer to think of it as useful background information. Lay audiences will appreciate the clarity of Biskupic’s writing and her ability to clearly lay out the issues in some complicated areas of the law, including affirmative action, abortion rights, and habeas corpus. Biskupic occasionally [*143] lapses into hyperbole and cliché, and has a tendency to repeat some stories, but these are minor irritants and may be blamed in part on the press’ rush to publication upon Justice O’Connor’s announcement in Summer 2005 of her intent to retire. The rush to press also likely explains the typos that occur more frequently than one might expect.

The picture of Justice O’Connor that emerges from this book is complicated. She is clearly intelligent and possesses a very strong work ethic. Indeed, she apparently is unable to sit still. She moves seamlessly from writing opinions to attending Washington social and political functions, to playing competitive golf and tennis, to traveling to international judicial conferences. Justice O’Connor also comes off as a pragmatist and politician, rather than as an ideologue. She came to the Court with strong beliefs on a variety of issues, including abortion, affirmative action, the death penalty, and states’ rights, but her position on some of these controversial issues moderated over the years.

She is portrayed as invariably upbeat and kind to her colleagues, even in the face of mistreatment by Chief Justice Burger (who refused to give her any meaningful opinions), Justice Blackmun (who was rude and condescending) and Justice Scalia (who repeatedly attacked her reasoning in his opinions). Her opinions indicate a lack of understanding or similar compassion for those not similarly situated, however. She repeatedly ruled against the poor and the powerless. In upholding Roger Coleman’s death sentence, in the face of his appeal that contained strong evidence that he did not get a fair trial and might in fact be innocent, she stated “this case is about federalism.” Not to Roger Coleman! She also was reluctant to acknowledge the moral necessity and legal validity of affirmative action.

While Biskupic’s portrait is largely quite sympathetic, it is not laudatory. Justice O’Connor is depicted as someone who got to the Supreme Court through a fortunate combination of hard work, the right connections, and timing. This is not much different from most appointees, however. What is clear is that Justice O’Connor was a masterful politician who was apparently willing to compromise (some would say reevaluate) her beliefs as times changed and the political winds shifted. She was originally an outspoken supporter of the Equal Rights Amendment and supported the decriminalization of abortion as an Arizona legislator, but downplayed and obfuscated her position on these issues when it became clear President Reagan was considering her for a position on the Supreme Court. She initially opposed racial gerrymandering designed to promote minority political candidates, but she later endorsed it in limited form. She staunchly opposed most affirmative action polices early in her tenure, but came to support them in later years.

Ms. Biskupic argues that O’Connor did not so much move to the left as the Court moved to the right. There is certainly some truth in this, but it also appears that she epitomizes Tom Dooley’s aphorism that “the Supreme Court follows the election returns.” As the political winds shifted, she shifted [*144] with them. Some would condemn this as a sign that she lacked a consistent philosophy of judging. Others would say this was a plus, that Justice O’Connor’s lack of a rigid ideological stance allowed her to take each case on its own merits.

Ms. Biskupic suggests Justice O’Connor’s move to the center may have been caused, in part, by her reaction to her battle with breast cancer in 1988, a health scare that understandably had a major impact on her. Another possible explanation is that she recognized she was situated between two fairly solid groups of justices, and that she therefore could often control the outcome in close cases. Other commentators have suggested O’Connor gained power by default, in that she just happened to be in the middle of two warring camps on the Court. Biskupic suggests O’Connor’s gain in influence was more complicated, that she changed her opinion on several controversial issues, and on others (such as abortion) may have decided to go with precedent over ideology. This would explain her part in creating the “undue burden” test and leading the “troika” that saved ROE. Biskupic makes a strong case that Justice O’Connor was a crucial swing vote not because she was indecisive but rather because she was truly a centrist in her approach. More a politician than a legal theorist, she followed the election returns, and her views, Biskupic argues, most closely matched those of the great middle of the American electorate—from abortion, to affirmative action, to religion.

One shortcoming of the book is the relative paucity of material dealing with the late 1990s and beyond, except for a discussion of BUSH v. GORE. The obvious explanation for this is that the book is based in large part on justices’ papers of the justices, especially Justices Blackmun and Marshall, who left the Court in the early 1990s. Readers interested in an extensive discussion of the role played by Justice O’Connor in APPRENDI v. NEW JERSEY and the subsequent sentencing cases will have to wait for another biographer to fill the void.

Cass Sunstein (2005) cites Justice O’Connor as an example of a “judicial minimalist,” a justice who does not focus on rules but on standards, and who makes a conscious choice not to move the law too far in any direction too quickly. Such a justice does not have an overarching view of the law, but seeks to take each case on its own merits. Many on the left (Justice Brennan) and right (Justice Scalia) find such an approach difficult to comprehend, but it is an approach that may closely reflect the values of the majority of Americans. It is hard to find strong supporters of Justice O’Connor on either the far left or the far right of the political spectrum, as in the end she was of neither. In a court marked by strong views, this may have been the best thing for America.

REFERENCES:
Sunstein, Cass R. 2005. RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA. New York: Basic Books. [*145]

CASE REFERENCES:
APPRENDI v. NEW JERSEY, 530 US 466 (2000).

BUSH v. GORE, 531 US 98 (2000).

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

© Copyright 2006 by the author, Craig Hemmens.

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CONSTITUTIONAL RIGHTS AFTER GLOBALIZATION

by Gavin W. Anderson. Oxford: Hart Publishing, 2005. 176pp. Hardback. £30.00/$60.00. ISBN: 1-84113-448-1.

Reviewed by Julie A. Thomas, Law Library, Drake University. Email: julie.thomas [at] drake.edu.

pp.139-141

Gavin W. Anderson, senior lecturer at the University of Glasgow’s School of Law, argues in CONSTITUTIONAL RIGHTS AFTER GLOBALIZATION that the traditional model of constitutional rights, based on liberal legalism, is no longer accurate in the current era of “legal pluralism,” – i.e., globalized political power given to both nation-states and non-state actors, such as multinational corporations – and that the legal pluralist paradigm should therefore supplant liberalism for legal scholars, practitioners, and educators.

Anderson successfully meets the challenge of discussing a potentially dry subject involving esoteric terms that could scare off even the most dedicated scholar – e.g., “counterhegemonic” and “internormativity” – by making his arguments mercifully brief, yet surprisingly clear. In Chapter One he summarizes each chapter to follow; the rest of the book then develops his main points in three parts. Part One outlines and defines globalization’s effects on political power, laying the foundation for Anderson’s suggested paradigm shift. In Part Two, Anderson details his definition of legal pluralism (both internal and external), how it differs from legal liberalism, and how other scholars approach this dichotomy. Part Three begins with Anderson’s answers to common criticisms of legal pluralism and ends with his practical suggestions for embracing the new paradigm of globalization and legal pluralism in constitutional theory.

Anderson makes clear early that his use of the term “globalization,” while applicable to many fields, refers to economics and what is called “the Washington consensus.” The economic neoliberalism of the Reagan/Thatcher era began the reversal of the idea of the state as “principal repository of political power.” As the 20th century wound down, governments around the world minimized their own power through tax reduction, marketplace deregulation, and welfare cutbacks. Taking the place of government intervention, private actors – particularly corporations – took over political power, becoming, in effect, “private international regimes” (p.9).

“Liberal legalism” embraces the traditional view of constitutionalism as individual rights granted by the nation-state. Under this paradigm, law is: 1) formal; 2) coherent; and 3) an effective means of protecting individual rights.

Anderson spends considerable time contrasting legal liberalism from legal pluralism, while also distinguishing external from internal legal pluralism. External legal pluralism has these three characteristics: 1) state law is one of multiple sources of law; 2) the multiple sources of law constantly overlap and [*140] interact; and 3) state law has no special status on the continuum of sources of law. As to the latter characteristic, Anderson stresses that this is not the same as saying the state is no longer important; it is instead another way of stating legal pluralism’s “most famous contention,” i.e., that the state does not have a monopoly on law (p.45).

Internal legal pluralism’s chief characteristics are: 1) the belief in a society characterized by disorder; 2) legal relations are one of a variety of social relations, and law’s inherent asymmetry improves its ability to create internal order within society; and 3) because of law’s incoherence, lawyers and judges “create law as much as they are created by law” (pp.57-58).

This new model extends the reach and broadens the scope of constitutional concerns. The essential question for Anderson, which he believes the existing literature has thus far neglected to answer, is whether rights constitutionalism can operate as a “counter-hegemonic restraint” on private power. He analyzes Ronald Dworkin’s “law as integrity” model as an example of a legal liberalist theory that lacks easy implementation (p.64). Anderson also summarizes the foundational work of Boaventura de Sousa Santos in the field of legal pluralism, noting that Santos’ objective is to “uncouple law from the state, and (re)couple it with social power” (p.52). Charles Sampford’s work linking social and legal disorder and incoherence is discussed in some detail in order to emphasize the idea that judges at all levels, although they may truly and in good faith believe they are completely objective in applying legal precedent, are unavoidably influenced by “the centripetal forces of asymmetrical social and legal relations” that prevent legal coherence (p.57).

Anderson places himself as most closely aligned with the so-called “transformationalist” camp, which sees the world not as one in which nation-states are still the main power centers amidst economic internationalization (as do “skeptics”) nor one in which nation-states are obsolete (as do “hyperglobalists”) (p.19). Rather, for Anderson, the primary reference point in the current environment is not the nation-state, but the global economy. Qualitative changes in the role of multinational corporations are apparent in their increased political activities such as lobbying, donating to parties and candidates, and mobilizing as political groups. Thus, in the global economy, public policy is undeniably shaped in part by pressure exerted by multinational corporations. In addition, Anderson observes that state-corporate and corporate-state nexus continue to form and expand, with corporations increasingly fulfilling essential state-like roles, such as that of direct provider of health care in developing countries, while supranational institutions, such as the World Trade Organization (WTO), function to “police” the global economy (p.29).

Perhaps most controversial is Anderson’s argument that judicial decisions are overemphasized as precedent and their direct effects on society are exaggerated, given the diminution of the nation-state’s power. [*141] He uses case studies in racial equality, abortion rights, and freedom of expression to support this view. Anderson says that studies suggest, for example, that the Warren Court’s BROWN v. BOARD OF EDUCATION decision not only did not have a major direct impact on ending segregation, but that it actually may have resulted in “unintended and often counterproductive consequences” (p.81). Similarly, he suggests that the overall number of abortions in the United States has fallen since ROE v. WADE, because women’s increased political power, the medical profession’s normative influence, and the liberalization of social mores have had more direct effect on American abortion rates than a so-called landmark Supreme Court case.

Anderson ends with suggestions for the practical implementation of legal pluralism. For instance, he proposes teaching first year law students constitutional law by reference to a corporate charter rather than the traditional liberalist use of the constitutional text. He is intrigued with the idea that instead of providing adversarial parties with a specific remedy, courts should set broad goals which the parties themselves then figure out how to achieve. He cites several examples of social movements and pressure groups that have successfully resisted the Washington consensus model by using diverse tactics to bypass official processes and go directly to corporations as the political entities that can solve the problems at hand, whether electricity cutoffs in South Africa or water privatization in Bolivia. Anderson concludes that legal pluralism’s task is “to develop a constitutional discourse that symbolises the multiple forms of political authority in society, and that encourages wider notions of the accountability of power” (p.148).

Anderson’s book is a lucid defense for his thesis that a paradigm shift for rights constitutionalism from legal liberalism to legal pluralism is imperative. And despite his European credentials and the British spellings and international examples throughout the book, Anderson also refers extensively to the United States and its Constitution, courts and cases. CONSTITUTIONAL RIGHTS AFTER GLOBALIZATION is recommended for undergraduate and graduate library collections strong in constitutional and/or international politics and law.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

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

© Copyright 2006 by the author, Julie A. Thomas.

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ARGUING MARBURY V. MADISON

by Mark Tushnet (ed.). Stanford: Stanford University Press, 2005. 224pp. Paper. $19.95. ISBN: 0804752263. Cloth. $50.00. ISBN: 0804752265.

Reviewed by Robert Justin Lipkin, Professor, Widener University School of Law (Delaware). Email: Robert.J.Lipkin [at] law.widener.edu.

pp.133-138

Imagine one morning reading in your daily newspaper that on that very day the Supreme Court of the United States will hear oral arguments in MARBURY v. MADISON. You make you way to the Court where, as luck would have it, you are escorted to a reserved seat. You can barely contain your eagerness when the Chief Justice intones: “The Court will now hear the case of WILLIAM MARBURY v. JAMES MADISON.” Incredible you say? Well technically, and given the impossibility of time travel, yes. But Mark Tushnet and company have done the next best thing in ARGUING MARBURY V. MADISON, an intellectual “Jones” for any self-respecting Supreme Court junkie.

What distinguishes this collection of essays on MARBURY and the institution of judicial review from the raft of law review symposia celebrating the case’s two-hundredth anniversary is an actual transcript of an oral argument conducted by flesh and blood judges and advocates. Since Madison failed to show up in the original case, this “re-argument” is the closest and, to my knowledge, the only transcript of an oral argument we possess. The re-argument took place on February 14, 2003 at the Georgetown Law Center. Representing Marbury was Georgetown’s Mark Tushnet. David Strauss, of the University of Chicago, represented Secretary of State Madison. Harry Edwards and David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit and Sonia Sotomayor and Robert Katzmann of the U.S. Court of Appeals for the Second Circuit were the judges hearing the case.

ARGUING MARBURY v. MADISON is an important contribution to the literature on MARBURY v. MADISON, and perhaps more importantly, to the history and jurisprudence of judicial review. Predictably, but happily, controversial claims taken as canonical are made throughout the book. For one example, the first sentence in editor Tushnet’s introduction states that MARBURY “is taken as the origin of judicial review.” Tushnet then indicates—referring to Suzanna Sherry’s article—that “scholars have known for years that this understanding is wrong.” Both claims—that MARBURY is the origin of judicial review and that scholars have known for years that it is not—are overstatements. Scholars still debate the origin of judicial review and MARBURY’s significance in its development. Admittedly, and to generalize shamelessly, political scientists seem more inclined than law professors to dismiss MARBURY as the origin of judicial review. Some exemplary scholars, such as Sandy Levinson and to a lesser extent Bruce Ackerman, even suggest, unpersuasively in my view, that MARBURY was a [*134] rather unimportant case especially compared to the Court’s capitulation to the political branches the following week in STUART v. LAIRD. And indeed, they are correct if the only measure of the case is its political impact. At the time, MARBURY had little political effect in establishing a powerful judiciary, while STUART v. LAIRD’s surrender to the Jeffersonians was politically breathtaking. But why restrict the measure of this case to its political significance at the time? MARBURY’s significance lies in creating a guiding framework within which judicial review has been challenged and defended for centuries. So, it is no surprise that the controversy over MARBURY’s pre-eminence persists.

More important, Tushnet’s assertion overlooks the jurisprudentially and conceptually prior task of explaining just what is involved in designating a particular case as the “origin” of this practice. Does it mean that the case created judicial review from whole cloth? Or does it mean, more modestly, that the case presents the best judicial explanation of judicial review up until that time? If the Supreme Court itself never before explained judicial review in such detail, why does it matter in evaluating MARBURY’S importance that the constitutional culture at that time included the idea of some sort of judicial review or even that the Court engaged in judicial review early in its brief history? These and other questions need resolution for Tushnet’s claim to be substantiated. However, pining over the absence of a jurisprudential analysis of these contested issues should not detract from appreciating the utility of Tushnet’s introduction as a revealing lens through which to view the oral argument that follows.

The transcript of the oral argument is illuminating despite suffering from the fate of almost all such transcripts. The reader must carefully piece together the advocates’ positions from their limited statements and from their often interrupted responses to the Court’s questions. Concise briefs submitted by each attorney might have heightened the effect of this simulation.

Counsel Tushnet’s position, as far as I can tell, is that a plausible interpretation of Section 13 of the Judiciary Act of 1789 and its underlying policies “taken as a whole makes it sensible to read the provision as authorizing this Court to issue a writ of mandamus in an original case” (p.14). Tushnet maintains, in effect, that the phrase “or persons holding office” is separable from the entire phrase “to any courts appointed or persons holding office” and thus no prior judicial action is required. In short, the second phrase in the disjunction itself can be read to warrant the Court’s issuing a writ of mandamus ordering the Secretary of State to deliver Marbury’s commission. And while this reading of the particular provision is not the most obvious one (or perhaps not even obvious at all), Tushnet contends that it is at least a plausible interpretation, which “makes sense structurally in terms of this statute . . . and makes sense as a matter of policy that Congress could reasonably make a judgment that issuing writs of mandamus to high federal officials should be something left to the [*135] judgment of this Court by conferring jurisdiction on” the Court to do so (p.15).

The central inquiry was whether Congress could authorize the Court to issue a writ of mandamus, a power not mentioned in Article III, thereby increasing the Court’s original jurisdiction. The colloquy between Marbury’s counsel and the Court reveal two arguments supporting this claim. First, and most familiar, is the argument that Article III, Section 2 provides a baseline for, and not a limit on, the Court’s original jurisdiction. While Congress cannot eliminate original jurisdiction in the textually specified categories, it may increase the Court’s original jurisdiction just as long as it maintains the baseline.

A second, more intriguing, argument is this. Since Congress can make exceptions to the Court’s jurisdiction by removing categories of cases from federal appellate review, Congress can also transfer these eliminated cases to the Court’s original jurisdiction. In counsel Tushnet’s words: “Article III, Section 2 identifies a universe of cases and divides that universe into two parts. But the exceptions clause allows Congress to redraw the line, or shift a case out of the appellate jurisdiction and into the original jurisdiction” (pp.17-18). What could possibly justify such a remarkable position? According to Marbury’s counsel, Congress’ use of the exceptions clause to eliminate jurisdiction of these cases entirely “would raise troubling questions about ‘one Supreme Court’ [and] the notion of a single court that will define federal law for the entire nation” (p.18). Hence, if Article III grants Congress the authority to remove a particular category of cases from the Court’s appellate jurisdiction, it must permit the Court to deposit these cases in the Court’s original jurisdiction.

Although this second argument is novel, as far as I am aware, when challenged by Judge Edwards, Marbury’s counsel retreats, as appellate attorneys are wont to do, to the first argument (p.17). The remainder of Tushnet’s argument concerns whether Marbury needs a statement from the Court concerning his commission, and if so, whether the case is ripe for judicial determination. Several interesting exchanges ensue about the nature of deciding issues such as these in the infancy of the Republic. At that point Marbury’s time runs out.

Counsel Strauss moves—well he really only suggests—that the Chief Justice recuse himself. The Chief Justice’s involvement in signing the commissions and his brother’s failure to deliver them certainly would warrant recusal today. After further jockeying about why Madison or his attorney failed to make an appearance in Court, Strauss announces the quite astonishing news that he, Strauss, was “dispatched by the future” to represent Madison. (If true, I may need to revise my earlier remark about the impossibility of time travel).

Once the argument addresses jurisdiction, Strauss explains that his client denies that Section 13 grants the Court jurisdiction in this case. The Secretary also denies the general power of the Court to declare statutes unconstitutional but seems tentatively to [*136] accept a “defensive” prerogative of constitutional review where any branch of government may decline to exercise power it denies it has under the Constitution (p.27). And this, in Strauss’ words, applies to “a category of cases specifically implicating the prerogatives of this Court in which I would say the Court may refuse to exercise powers” (p.29).

However, if the Court has no “general power . . . to declare acts of Congress unconstitutional,” what remedy exists for citizens harmed by unconstitutional governmental action? Remedies for such actions, according to Madison’s counsel, include the common law, and if Marbury was harmed he could sue for damages in a court having jurisdiction over such common law actions (p.27). Yet, this suggested remedy is virtually tantamount to precluding courts from redressing unconstitutional, statutory harms as well as governmental conduct prohibiting free speech or equal protection unless these harms are prohibited by the common law.

Strauss advances his client’s (as well as President Jefferson’s) departmentalist conception of American constitutionalism which maintains that each federal branch of government has the authority and responsibility to interpret the Constitution for itself, at least pertaining to its own constitutional powers. In this view, according to Madison’s attorney, the very process of enacting legislation presupposes Congress’ judgment that the legislation is constitutional and this “judgment simply cannot be overridden because this Court disagrees” (p.29). Judge Edwards challenges Strauss to show where the Constitution says that when Congress enacts legislation it should be assumed constitutional and that the Court is bound by this assumption under Article III. In response, Strauss claims to see this proposition “in the fact that congress is empowered to pass laws under Article I of the Constitution” (p.29). Later Strauss weakens his position somewhat by asserting “when any official exercising authority under the Constitution . . . one thing he or she must take into account is, what other branches of government, other agencies, other officials said” (p.32, emphasis added). (This is a weakened position because assuming a law is constitutional because Congress has enacted it and taking Congress’ enactment into account in assessing its constitutionality are vastly different claims.) Further, Strauss insists the Constitution nowhere says that the courts have the final word on the constitutionality of congressional legislation. In Strauss’ view, no “literal support” for this proposition can be found in the Constitution (p.32). Indeed, according to Strauss, the Framers could very well have included such language in Article III had they thought the Court should have such power. But they did not.

The argument ends inconclusively as surely it must. Predictably, the Court resists the proposition that the three branches of government are not only co-equal in power, but also have equal authority to interpret the Constitution. However, Madison’s counsel is steadfast in his departmentalist conviction that the Court lacks the authority to issue a writ of mandamus ordering Madison to [*137] deliver Marbury’s commission. In rebuttal, counsel Tushnet urges the Court to recognize that constitutional law is “a special kind of law;” it reflects the people’s understanding of itself as a nation, and must be approached in ways that differ from ordinary statutory interpretation (p.36). Counsel Strauss earlier (p.30) seems to agree with this conception of constitutional law, one apparently at odds with the current reigning paradigm of a legalized Constitution.

Following the transcript of the oral argument, David Strauss, now in his constitutional law scholar persona, provides a sobering perspective “On Having Mr. Madison as a Client.” At the time of MARBURY, the relationship between the executive and judicial branches was anything but harmonious. To the contrary, it was marked with executive hostility toward the courts. Indeed, Jefferson had so little respect for the justices of the Court that odds are he would not have even thought twice before attacking them politically had they been imprudent enough to oppose him stridently and forcefully. Reciting these historical facts reveals nothing new. Strauss’ treatment of them is illuminating, however, because he vividly describes how they might have posed special problems for Madison’s attorney in 1803. Madison’s attorney, while remaining civil, probably would have deliberately refrained form making any conciliatory gestures toward the Court. Rather, there is the distinct possibility that Madison’s counsel might have used the failure of the Chief Justice to recuse himself “to signal that the administration was prepared to attack the Court publicly if need be” (p.41). Indeed, one shudders to think how the hostility toward the Court would have played out had the Court issued the writ.

ARGUING MARBURY V. MADISON includes essays by Suzanna Sherry, Susan Low Bloch, Barry Friedman, Douglas Reed, Stephen M. Griffin, Vicki C. Jackson, and Louis Michael Seidman. These essays continue the conversation begun in the transcript. The issues include but are not limited to: the relationship between MARBURY and STUART v. LAIRD; myths surrounding MARBURY; the role of the common law and natural law as features of the intellectual background of MARBURY; the clever strategy of bringing the case in the Supreme Court instead of available lower courts for the distinct purpose of achieving federalist goals; whether tacit consent underlies the legitimacy of judicial review; and whether understanding democracy as rights provides a useful measure of the type of judicial review appropriate for contemporary self-government.

The format of these articles pairs principal articles with responses, and hence lends itself pedagogically to useful examinations in courses or seminars designed to examine the central problems of American constitutionalism. The book, in my view, also provides an excellent stand-alone text for law school seminars pursuing an in-depth examination of MARBURY v. MADISON.

The transcript and the well-crafted articles also should be a terrific starting place for scholars beginning to develop [*138] an expertise in the scholarship of MARBURY and judicial review. And more advanced scholars will simply delight in studying the transcript of an actual oral argument in this case as well as reading the rich and diverse array of articles and responses by a distinguished group of constitutional scholars advancing no common agenda except a refined sense of relevance, felicity of style, and passion for the historical, analytic, and normative evolution of American constitutionalism. The participants in this project deserve our gratitude for producing a volume that should occupy a principal place in the literature of MARBURY v. MADISON and the role of the courts in American democracy.

CASE REFERENCES:
MARBURY v. MADISON, 5 US 137 (1803).

STUART v. LAIRD, 5 US 299 (1803).

© Copyright 2006 by the author, Robert Justin Lipkin.

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THE JUDICIARY AND AMERICAN DEMOCRACY: ALEXANDER BICKEL THE COUNTERMAJORITARIAN DIFFICULTY AND COMTEMPORARY CONTEMPORARY CONSTITUTIONAL THEORY

by Kenneth D. Ward and Cecilia R. Castillo (eds). Albany: State University of New York Press, 2005. 198 pp. Cloth $55.00. ISBN: 0-7914-6555-1.

Reviewed by Eileen Braman, Department of Political Science, Indiana University. Email: ebraman [at]indiana.edu.

pp.126-132

In choosing the title for his seminal work, Alexander Bickel injected a healthy dose of irony into constitutional theory. As several of the contributors to this volume edited by Kenneth D. Ward and Cecilia R. Castillo note, THE LEAST DANGEROUS BRANCH (Bickel, 1962) was written not long after BROWN v. BOARD OF EDUCATION, a decision with such far-reaching implications for American society that Hamilton’s words in FEDERALIST 78 seem like they came from a bad fortune teller. Yet Bickel did not mean to mock the vision of the judiciary set forth by Hamilton, but to struggle with it in light of one-hundred fifty years of historical experience. Like Hamilton’s, Bickel’s Court was one with unique capacity to make principled judgments; like Hamilton, Bickel portrayed the judicial function as an essential component of our constitutional system. With benefit of hindsight, however, including famous (and infamous) Supreme Court decisions, Bickel attempted to assess the implications of judicial review for American democracy more broadly. Recognizing that the highly visible exercise of non-democratic authority can have detrimental implications for democracy, he famously argued that judicial decision makers should exercise prudence when invoking judicial review until it is clear their participation is absolutely necessary to resolve important constitutional conflicts.

THE LEAST DANGEROUS BRANCH was, and will remain, a landmark for its grand reassessment of the judiciary’s role in our constitutional system at a critical time in our history. The question for contributors to Ward’s and Castillo’s edited volume, THE JUDICIARY AND AMERICAN DEMOCRACY, is what relevance do Bickel’s ideas have today? The answer, as one might expect in a book with nine contributing scholars from different disciplinary perspectives, is mixed.

Although detailed knowledge of contemporary schools of constitutional thought is not absolutely necessary for reading this volume, it is certainly helpful. Essays range from charactering Bickel’s approach as internally inconsistent (Robert F. Nagel, “Precedent, Prudence and Judicial Power”) and based on flawed assumptions (Terri Peretti, “An Empirical Analysis of Alexander Bickel’s THE LEAST DANGEROUS BRANCH”), to suggesting Bickel’s theory, viewed in its proper light, is a precursor for various strands of constitutional thought espoused by some of our most respected contemporary theorists including Cass Sunstein [*127] (Christopher J. Peters and Neal Devins, “Alexander Bickel and the New Judicial Minimalism”) and Ronald Dworkin (Kenneth D. Ward, “ Bickel and the New Proceduralists”).

In his introduction, Ward warns that Bickel’s significance remains “elusive” if one is to measure his contribution by the assessments of the authors in this volume (p.1). Even contributors that attribute an important place for Bickel’s ideas seem to characterize them as an historical footnote, more significant for the auxiliary and counter theories they spawned than any time-tested insight offered by Bickel himself. This is unfortunate, and I think fundamentally mistaken upon a broad reading of this compellation of essays.

Each contributor characterizes Bickel’s ideas in his or her own way. Although this makes the volume somewhat choppy, especially where authors repeat quotes or redefine terms, it also underscores what is fundamental in Bickel’s theory. Over and over the authors return to three main themes: (1) countermajoritarianism (a term attributed to Bickel himself); (2) “passive virtues;” and (3) the inter-branch colloquy that Bickel envisioned as emanating from the Court’s decision to employ (or not employ) judicial review in particular cases. Oddly enough, although each of these aspects of Bickel’s theory have “gained a life of [their] own” in the forty years since THE LEAST DANGEROUS BRANCH was published, Ward tells us that Bickel “has lost his allure” because constitutional theorists have concluded his response to the countermajoritarian difficulty was “deficient” and characterized his ultimate quest to justify judicial review as a failure (p.147).

If this is the criterion by which Bickel’s contemporary relevance is to be judged, the bar seems exceedingly high. One wonders why identifying the countermajoritartian difficulty itself, along with a jurispudental philosophy to address the problem (which, incidentally, has shaped constitutional discourse over the last half century) is not “enough” to make Bickel relevant. Indeed, one could argue that this is much more than most contemporary theorists have done. Moreover, whether anyone else has provided a “better” justification for judicial review or even endeavored to take on the question with the same enthusiasm for addressing the range of political and jurisprudential implications, is at best, arguable.

Yet, consistent with Ward’s characterization, contributors imply that considering Bickel’s theory in isolation, without significant alteration or elaboration, is no longer “where it’s at” in constitutional [*128] thinking. Essays directly address some shortcoming in Bickel’s theory or compare it to some alternative school of constitutional thought. Specifically, Bickel’s philosophy is compared to interpretive approaches, including but not limited to, those touted by Sunstein, Ackerman, and Dworkin. Predictably, Bickel comes out behind in many of these comparisons or his ideas are characterized as influential, but outdated. Upon reading these summaries of contemporary theory, however, I was left with the unsettling impression that recent constitutional thinking does not necessarily represent advancement over the classic jurisprudential approach offered by Bickel—if his insights are no longer relevant in contemporary constitutional thinking, perhaps they should be.

For instance, in “The Jurisprudence of Constitutional Regimes,” Mark Tushnet argues that Bickel’s ideas were well suited for the New Deal/Great Society regime of the 1950s and 60s where the primary contribution of the Court was validating interest group pluralism through the programmatic liberalism of justices chosen in an era of “long Democratic Party dominance” (p.27). On this account, Bickel’s portrayal of the Court’s unique capacity for principled deliberation helped to “validate interest-group bargains struck in the political arena” and “justify the emerging commitment to substantive rights” (pp.23, 25). According to Tushnet, however, the growing acceptance of legal realism, coupled with political changes that produced a more diverse national policy-making elite, made it clear that constitutional principles were, in fact, contestable. The result was a regime transition where Cass Sunstein’s concept of “judicial minimalism” and advocacy of “shallow” opinion writing are better suited to the needs of the current justices.

According to Tushnet these techniques are especially useful because they (1) limit the applicability of contested constitutional judgments to the particular circumstances in which they arise, and (2) help mirror principled contestations that exist in society “by drawing from a variety of principles.” In this way, shallow opinion writing “resemble(s) the compromises legislators make in working out the details of a statute” (p.32). Tushnet admits this new approach is not all together satisfactory because it puts judges who may lack the proper background and/or political astuteness in the position of having to make political calculations in the context of decision making. He does argue, however, the approach is more compatible with the needs of the current constitutional regime.

Tushnet presents a very interesting portrayal of adaptive constitutional thinking. The problem with this rather fluid conception of appropriate interpretive strategy becomes clear, however, if one accepts the notion that one of the primary functions of the Constitution is to protect individual rights from majoritarian encroachment. If the constitution embodies fundamental principles that transcend particular trends in public opinion, then interpretive strategy should not change with political context. Bickel did not portray his theory as time bound. The fact that others can characterize it as such is perhaps the problem with what Terri Peretti refers to as the “legal academy’s longstanding . . . obsession with the countermajoritarian difficulty” (p.132); over-thinking the problem can lead to perverse results that gut the very protections the Constitution was meant to provide.

The point that “newer” constitutional theory is not always an improvement over Bickel’s insights is further illustrated by the distinction Christopher D. Peters and Neal Devins make [*129] between “procedural” and “substantive” avoidance tactics in their essay. Peters and Devins correctly classify Bickel’s conception of “passive virtue” as “procedural deference, the use of process-based judicial techniques to avoid ruling on the constitutionality of a political decision unless, and until, the constitutional principle in question became relatively clear” or clearly intractable, through the operation of the political process (p.46).

They contrast Bickel’s conception of constitutional avoidance with a more recent strand of “substantive deference” espoused by constitutional theorists as a way of addressing the merits of the constitutional issue in limited fashion that acknowledges pluralistic principles on both sides of the issue, thus validating (and encouraging) continued political debate about contested constitutional matters. Sunstein’s concept of judicial minimalism is one example, but they cite others including Michael Dorf’s notion of “provisional adjudication” and Neal Kumar Katyal’s concept of “advicegiving,” which occurs “‘when judges recommend but do not mandate, a particular course of action based on a rule or principal in a judicial case or controversy’” (p.55, quoting Katyal 1998). According to the authors, Katyal’s conception of advice giving “combines the impact-limiting and democracy promoting functions” of judicial minimalism (p.55).

What Peters and Devins fail to acknowledge is that Bickel’s procedural deference is perhaps more satisfactory from a jurisprudential perspective because it is principled avoidance specifically grounded in notions of judicial authority embodied in the “case and controversy” language of Article III. Once judges enter the thicket of making substantive decisions regarding contested constitutional issues, they become subject to legitimate arguments about their authority and capacity to choose among competing politicized conceptions of rights – even when those choices are narrowly construed. Indeed, shallow, superficial opinion writing that acknowledges competing arguments tend to highlight this difficulty. In this respect “substantive” avoidance can look more like judicial buck passing or “strategic” avoidance on intractable constitutional questions where Bickel would argue the Court has a duty to make principled judgments based on its unique capacity for principled deliberation.

This problem with substantive deference is illustrated by an example Peters and Devins provide. Specifically they make the rather controversial statement that although the “undue burden” compromise struck in PLANNED PARENTHOOD v. CASEY (1992) was completely unsatisfactory to proponents on either side of the abortion debate, “there [was] no realistic alternative to CASEY’s balancing act” given the current political climate (p.62). One could argue that in 1954 the Court was in a similar political environment regarding contested conceptions of equal protection. What if the Court had come up with an “undue burden” standard with regard to segregation? Would this have been acceptable – even as an “intermediate” solution to the problem? [*130] I think not (although, I suppose, others could disagree).

The point is, there must be some role for principled absolutism in constitutional decision making. Otherwise the very notion of individual rights becomes illusory. Bickel argues that, as long as there are democratic ways to revisit Supreme Court decision making via the amendment process, we can be secure in the notion that we can change things if the Court gets them horribly wrong. Admittedly this is an arduous mechanism, but democratic checks on judicial review do exist, and, as several of the contributors in this volume point out, for Bickel this is fundamentally important. In the end I would argue that, if the consensus among legal scholars is that Bickel’s jurisprudential approach is unsatisfactory, that’s fair; but I am not convinced the contemporary theories discussed in this volume are without their own set of significant shortcomings.

Thus far, I have discussed aspects of the book as they relate to interpretive legal theory. I would be remiss if I did not don my political science “cap” to mention essays in this volume that should be of particular interest to political scientists interested in other aspects of constitutionalism regarding the exercise of judicial review. In particular, several essays stand out in this respect. The first, by David M. Golove, is primarily interested in the notion of “consent” in democratic society. Specifically he explores whether it is a static or dynamic construct by contrasting what he characterizes as Bickel’s notion of “ongoing consent” with Bruce Ackerman’s arguments about more static “constitutional moments” in history. He argues these conceptions have vastly different implications for whether the Court is properly viewed as a contemporary (and sometimes) forward looking leader in constitutional interpretation, or a retrospective institution primarily charged with preserving principles agreed upon during the last critical “moment” in our history.

A second essay that should be of interest to political scientists is Keith E. Whittington’s, “Constitutional Theory and The Faces of Power.” Like Peretti, Whittington argues that there has perhaps been too much focus on the “countermajoritarian” aspect of Bickel’s theory and suggests theorizing about other ways the constitution structures political experience. Particularly, he argues we should pay more attention to ways the constitution influences the representation of interests, affects notions of appropriate political strategy, and shapes political identities in our democratic system. Clearly this is interesting but rather abstract stuff. It could lend itself, however, to more concrete definition (and perhaps operationalization) if political scientists are willing to take up the sort of inquiry Whittington suggests.

Terri Peretti’s essay is perhaps the most overtly critical of Bickel’s theory in the volume. Citing the last 50 years of empirical research on the consistency of legislation and Supreme Court decision making with public opinion, she argues that Bickel’s central argument about the dangers of countermajoritarianism are based on flawed assumptions. Basically, [*131] Peretti argues that legislation does not always represent majority preferences, citing research that shows legislation is constant with public opinion “roughly 55 to 65 percent of the time” (p.127) and Supreme Court decisions are not always countermajoritarian.

While Peretti’s injection of empiricism into the realm of constitutional theory is certainly refreshing, the critiques she raises in this chapter are arguably overdrawn and a bit unfair. First, much of the evidence she cites about the consistency of the Court’s decision making with public sentiment is from research conducted well after Bickel wrote his seminal book. Second, this line of research is necessarily selective, investigating only political issues for which there are available public opinion data, and thus, may tend to underestimate the extent to which public opinion comports with representative policy-making. Finally, one could argue, as Ward’s essay implies, that Peretti’s issue-specific analysis fundamentally mischaracterizes the countermajoritarian difficulty about which Bickel was talking. According to Ward, Bickel was not as concerned with the Court deviating from popular will in particular cases, as he was with the potential detrimental effect of the unrestrained exercise of judicial authority for the legitimacy of the system as a whole. Viewed in this light Peretti’s empirical critique seems somewhat off-point.

Finally, I feel some obligation to mention the 2000 pound gorilla legal theorists have been so adept at ignoring in thinking about constitutional decision making. For years interpretive legal theory has evolved by scholars touting schools of interpretation that justify the outcomes in seminal decisions like BROWN and refute those in infamous decisions such as PLESSY v. FERGUSON (1896) and LOCKNER v. NEW YORK (1905). The merit of a particular interpretive approach is judged by its ability to justify widely acknowledged desirable outcomes. Stated simply, constitutional theory evolves “as if” there were some consistent interpretive approach that would yield such desirable outcomes.

Of course, we, as political scientists, know better; often the outcome in constitutional cases has more to do with the mix of preferences of the justices on the Court then their commitment to any interpretive principle. Constitutional legal theory has completely failed to consider a half century of empirical research on the influence of ideological preferences on Supreme Court decision making. That being said, I would argue this is not entirely a bad thing. Interpretive legal theory covers the normative as well as empirical ground; it is properly concerned with how decisions should be made as well as how they have been made at critical junctures in our history. But perhaps the time has come for political scientists to take a more active role in the debate and consider the democratic implications of how judges actually make decisions in a broader theoretical context. Perhaps we should take a cue from Bickel and think about reassessing the role of the Court in light of what we, as a discipline, understand about how judges actually exercise their substantial authority. [*132]

As an assessment of current legal theory about the state of thought concerning the exercise of judicial review in our democratic system, this short volume is packed with very serious and important arguments. I strongly suggest political scientists pick it up, but read it critically, and judge for themselves whether it is time to get rid of that copy of Bickel’s book that has, after all, been collecting dust on the self. Alternatively, it could be a good time to pick it up, brush it off, and think about Bickel’s relevance in light of more recent ideas and what we, as a discipline, have to contribute to the debate.

REFERENCES:
Bickel, Alexander. 1962. THE LEAST DANGEROUS BRANCH. Indianapolis, IN: Bobbs-Merrill.

Katyal, Neal Kumar. 1998. “Judges as Advice Givers.” 50 STANFORD LAW REVIEW 1709.

CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

LOCKNER v. NEW YORK, 198 U.S. 45 (1905).

PLANNED PARENHOOD v. CASEY, 505 U.S. 833 (1992).

PLESSY v. FERGUSON 163 U.S. 537 (1896).

© Copyright 2006 by the author, Eileen Braman.

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LAW, LEGITIMACY, AND EUROPEAN GOVERNANCE: FUNCTIONAL PARTICIPATION IN SOCIAL REGULATION

by Stijn Smismans. New York: Oxford University Press, 2004. 542pp. Hardback. $140.00/£60.00. ISBN: 0199270309.

Reviewed by David Schultz, Graduate School of Management, Hamline University. Email: Dschultz [at] hamline.edu

pp.123-125

Two criticisms, according to Stijn Smismans, are often directed against the European Union (EU): First, that there is a “democratic deficit,” second, that its basic institutions are not representative. The first criticism asserts that there is a lack of democracy and popular control in the EU, such as the relatively weak power of the European Parliament in comparison to the unelected Commission. This lodging of major decision making power in unelected bodies also makes the Union less than popularly accountable. The criticism that the EU is not representative is related to the democratic deficit complaint. Here some contend that EU institutions and leaders are not territorially or geographically representative of the people of Europe and that with recent enlargement and changes in voting procedures, it is even less able to give voice to the various interests and constituencies in it.

These criticisms of the EU make two assumptions. One, they rest upon what Smismans and others call a “transmission belt” conception of representation, and, two, upon a pluralist model of politics. A transmission belt theory asserts that the representation of interests in a state moves from the people electing their representatives to the latter articulating policy and issuing directives to public bureaucracies based upon these interests. A second assumption is that representation of interests takes place only within a pluralist conception of politics. Specifically, preferences are articulated by interest groups that compete for influence in the public arena. Successful groups achieve representation if their interests are legitimized and acted upon by policy makers. If one accepts these two assumptions, then perhaps the EU does fail both the democratic deficit and representation tests. However, perhaps there is an alternative way to represent interests in the EU which would allow it to escape these criticisms. Exploring this path is the aim of this book.

Smismans has undertaken a bold project in this book. The objective is to change the dialogue about democracy and representation in the EU away from government and pluralism to governance and neo-corporatism. Drawing heavily upon literatures in law, political science, and public administration, Smismans begins by noting how current discussions and criticisms of the EU are territorially based and assume that the only legitimate form of representation is premised upon a transmission belt of parliamentary government that rests upon a pluralist model of politics. However, this may not be the correct way to understand the EU. Instead, one needs to look beyond government to governance—looking at the informal [*124] network of institutions and actors that help inform policy and decisions—to see that the EU instead might be operating with a different model of decision making and representation. This new model the author describes as functional participation.

According to Smismans, functional participation looks beyond territorial representation of interests to determine how specific groups are necessary for specific purposes. These purposes can vary, but management and labor groups (along side government officials) have been granted functional participation within the EU across a host of institutions. In granting these groups functional participation, the goal is both to define and institutionalize them as primary players, but also to facilitate decision making that effectively privileges them at the expense of others. With labor and business represented as a whole, and not specific to the various states that make up the Union, what can be achieved is a polity that does acknowledge the most critical interests within Europe. Functional representation, thus, legitimizes specific groups and confers upon them legal rights and authority to speak for others.

To ascertain how functional representation operates in the EU, the author uses occupation health and safety (OH & S) policy as a case study. Smismans’ aim is to ascertain what groups are active within this policy area, what institutions address OH & S, and how successful the groups are in using institutions to articulate and promote their interests. In effect, how are private groups given official recognition by EU law, and how do they use this privileged position to effect governance?

After an introduction to OH & S policy, the author devotes several chapters to examining the ways that management and labor interests are represented. Chapter III addresses the European Economic and Social Committee (EESC), a body that is advisory to the other main decision making entitites. Article 257 of the EC treaty defines the composition of the EESC to be composed of various components of civil society, including the trades, producers, and members of the public. Smismans sees it acting as a quasi-parliament, seeking to bridge the gap between civil society and the major EU bodies. The EESC’s role is advisory and deliberative, serving as a forum that should be viewed with others that give contending interests an opportunity to be heard.

Other chapters in the book explore additional EU institutions, such as the Advisory Committee on Safety and Health at Work (Chapter IV), the European Agency for Safety and Health Protection at Work (Chapter V), and the European Social Dialogue (Chapter VI), the latter of which is composed of several consultative bodies in various policy areas. Each is given official recognition in EU law and provides a different forum or avenue for interests to meet and deliberate on policy, and to be available to advise the Commission and Parliament, for example. Smismans details how each body rests upon a neo-corporatist view of representation, granting recognition to different interests in civil society. [*125]

In seeking an overall assessment of functional representation, the author concludes that a primary objective is for the government to use its various advisory bodies to facilitate an overall sense of deliberative democracy within the EU. It is an effort to bring together representatives of management, labor, and government to make policy. The functional representation model rests upon an assumption of equal representation that the author notes is not always achieved in reality. Yet if functional representation is considered with territorial representation as part of a broader conception of EU governance, then perhaps the criticisms about democracy and representation might lessen. Legitimacy and representation in the EU, thus, must be understood and seen within a complex web of many deliberative and advisory bodies, operating together, which represent specifically designated interests.

LAW, LEGITIMACY, AND EUROPEAN GOVERNANCE is a challenging and rich book. It offers a sophisticated reconceptualization of politics that will be foreign to American scholars who are used to a pluralist model. Formal governmental institutions in the EU replace the primacy of interest groups as the representatives or voices of civil society. The law gives voice not to specific individuals, but to more broadly defined interests. At the close of the book the author offers some ideas on how functional representation might be strengthened, and one gets the sense that critics of the EU are seeking to borrow from American administrative law to provide more influence to groups.

LAW, LEGITIMACY, AND EUROPEAN GOVERNANCE is a book about law, but it is one that connects groups to it by way of political institutions and decision-making structures. It does a fine job in analyzing the informal networks that affect formal decisions, and it shows how the law operates as a mediating force to promote both.

© Copyright 2006 by the author, David Schultz.

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COURTS, LIBERALISM, AND RIGHTS: GAY LAW AND POLITICS IN THE UNITED STATES AND CANADA

by Jason Pierceson. Philadelphia: Temple University Press, 2005. 264pp. Cloth. $68.00. ISBN: 1-59213-400-9. Paper. $22.95. ISBN: 1-59213-401-7

Reviewed by Donald W. Crowley, Department of Political Science, University of Idaho
Email: Crowley [at] uidaho.edu

pp.119-122

Jason Pierceson’s COURTS, LIBERALISM, AND RIGHTS is a timely book that provides an excellent account of the major legal developments in gay rights in the United States. Pierceson reviews major Supreme Court cases related to gay rights and provides extensive coverage of developments related to sodomy laws and same sex marriage at the state level. As an added bonus, he also includes a nice chapter outlining similar developments in Canada. The book raises important questions about the progress of gay rights and fills a useful role for those straining to keep up with legal developments in this evolving frontier of civil rights. Had the book been available late this summer I may well have used it in my Law & Society course.

While Pierceson’s extensive coverage serves a highly useful purpose, the book does strive to higher pretensions by couching the development of gay rights in broader theoretical contexts. Indeed, Pierceson hopes the book will not be seen as “niche scholarship” addressing issues of “significance to only a small segment of society” (p.20).

The first of Pierceson’s broader themes is to argue that the gay rights experience can serve as an example of how the courts can play an effective role in bringing about social change. “The book challenges the assertions of scholars regarding the ineffectiveness of courts in achieving significant political or social change” (p.4). Thus, Pierceson wants his book to be viewed, at least in part, as a response to Gerald Rosenberg’s THE HOLLOW HOPE. As most readers of LAW & SOCIETY BOOK REVIEW know, Rosenberg’s 1991 work was an impressive account of the difficulties courts face in bringing about social change. Rosenberg posits two opposing models of the Court, the dynamic and constrained models and argues that except when certain conditions are present the constrained model best describes court capacity. Pierceson, by contrast, argues that Rosenberg’s perspective is “overly simplistic” and fails to account for the manner in which “litigation and legal discourse can set new political and social agendas and change the terms of political debate by introducing new methods of argumentation” (p.7). By placing his work in the tradition of Michael McCann’s RIGHTS AT WORK, Pierceson contends that law and legal discourse play a more complex role in influencing social change than Rosenberg suggests. Pierceson may be right, but I found his evidence less than fully persuasive.

Ascertaining the role of courts in producing social change is certainly a [*120] complicated question, and disentangling change produced through court decisions from that produced through other mechanisms is quite difficult. Although Supreme Court decisions, like LAWRENCE (2003), may ultimately contribute to public acceptance of a right to choose one’s sexual partners, this was a trend already well in the making. Indeed, by the time of the LAWRENCE decision only thirteen states maintained laws like the one struck down. As Pierceson effectively illustrates, the shift between BOWERS (1986) and LAWRENCE was aided by many state courts decisions. Indeed the importance of state courts has been an untold story and is one of the most convincing points in Pierceson’s consideration of the issues. Nonetheless, some states altered their laws without the intervention of courts, and, given other shifts in our culture, it is not apparent whether courts were leading this revolution or simply verifying it.

Same sex marriage has become the latest manifestation of our continuing cultural war and potentially serves as another example of courts bringing about social change. Pierceson’s chapters on Hawaii and Vermont are interesting case studies, although Michael Mello’s book, LEGALIZING GAY MARRIAGE, provides a better description of the events in Vermont. Still, Pierceson does a nice job of situating these developments in the broader literature of judicial politics. Nevertheless, as Rosenberg suggests, we are still left with deciphering whether decisions like those in Vermont and Massachusetts will lead to greater public acceptance of same sex marriage or simply cause a backlash leading to state constitutional amendments across the land. Such a state backlash is, of course, important since we are unlikely to see the Supreme Court lead a revolution on this score, despite the evolving position of Justice Kennedy. While the jury is certainly still out, the 2004 election hardly provides support for Pierceson’s view. In reaction to cases like BAKER (Vermont) and GOODRIDGE (Massachusetts), eleven states passed constitutional amendments limiting same sex marriage. Of course, this is only the beginning, and one could argue that, in the long run, such decisions proclaiming the right to choose marriage partners regardless of gender will prove to have played a significant role in laying a foundation for recognition of essential dignity for all individuals.

This claim relates to the second major argument in Pierceson’s book. To what extent can liberalism as a public philosophy provide the language and support necessary to sustain the gay rights movement? Pierceson seeks to defend liberalism from attacks from both the left and the right. “Queer and critical theorists view liberalism as a mask for power and oppression of minorities, while communitarians, both left and right, see liberalism as a thin ideology, overly concerned with the individual at the expense of the needs of society” (p.33). Pierceson contends that liberalism provides a strong enough framework to protect the advance of gay rights. Interestingly though, Pierceson agrees with some of the criticisms of modern liberalism, finding it too “minimal, negative, and libertarian” (p.37) and that this thin form of [*121] liberalism threatens the acceptance of gay marriage.

According to Pierceson, over-reliance on negative rights comes at the expense of positive rights. In his view the removal of sodomy laws could gain widespread acceptance because it fits into the American cultural willingness to accept negative rights claims, while same sex marriage does not fit this frame as well because it requires government acceptance and recognition of the new status. Attacks on BOWERS and defenses of LAWRENCE, in terms of protecting a “right to be let alone,” do not go far enough in supplying a solid defense of why same sex couples should have the right to marry. Privacy, in this view, is too thin a justification to support same sex marriage. From its inception the constitutional right to privacy has been a right searching for a firm Constitutional foundation. As Pierceson notes, some arguments for privacy reduce it to a simple negative right to be left alone. Pierceson, relying on Rawls, Dworkin and Richards, strives for a richer liberalism that justifies gay marriage on the basis of concern for human dignity and individual autonomy. “This principle of ‘autonomy’ is not simply a freedom to be ‘left alone’; it posits that individuals make decisions and arrange their lives for personal self-development. A large part of this ordering . . . . includes love and sexual intimacy” (p.38). For Pierceson, this deeper recognition of human dignity is essential if governments are to recognize the importance of accepting gay marriage. Surprisingly, Pierceson does not spend much time exploring the difference between granting civil unions and recognizing gay marriage, other than to note the pragmatic point that allowing civil unions amounts to a step in the right direction.

Ultimately, Pierceson optimistically argues that court decisions, particularly those rooted in the richer liberalism of human dignity, have played an important role in advancing social change and protecting gay rights. “The ability of courts to set new agendas, frame political conflicts in liberal legal language that empowered sexual minorities, the leverage that litigation provided this minority, and the radiating effects of these arguments all have led to significant, though not complete, social change” (p.195).

This reviewer is not unsympathetic to these arguments, both in terms of the potential agenda-setting and rights-enhancing role of courts, as well as the need for a richer liberalism that supports a positive role for government in advancing human dignity.
Nevertheless, Pierceson’s evidence failed to persuade me that Rosenberg’s more limited role for courts was mistaken. Courts can only move societies so far. They have an easier time telling legislatures and law enforcement agencies that they cannot maintain and enforce discriminatory laws (like sodomy) than they do convincing legislatures and the public that personal decisions about with whom to live are entitled to equal respect. In this regard, I suspect that our culture is more easily affected by tragic events like Mathew Sheppard’s murder and moving love stories like BROKEBACK MOUNTAIN. Such developments, [*122] when aided by an organized and persistent social movement can bring about change. Courts, as Pierceson’s account suggests, can be important, but it is misleading to overemphasize the role they play.

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

Mello, Michael. 2004. LEGALIZING GAY MARRIAGE. Philadelphia: Temple University Press.

Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE. Chicago: The University of Chicago Press.

CASE REFERENCES:
BAKER v. STATE, 744 A. 2nd 864 (Vt. 1999).

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

GOODRIDGE v. DEPARTMENT OF HEALTH, MASS. (Sup. Jud. Ct. Nov 18, 2003).

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

© Copyright 2006 by the author, Donald W. Crowley.

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EXILE AND RETURN: PREDICAMENTS OF PALESTINIANS AND JEWS

by Ann M. Lesch and Ian S. Lustick (eds). Philadelphia, PA: University of Pennsylvania Press, 2005. 368pp. Cloth. $45.00/£29.50. ISBN 0-8122-3874-5.

Reviewed by Michael Dumper, Department of Politics, University of Exeter, UK. Email: Mick.Dumper [at] exeter.ac.uk

pp.116-118

The conflict between Palestinians and Israelis has come full circle since the beginning of the last century. From primarily a conflict between the two main protagonists, it broadened out and was subsumed into a region-wide Arab-Israeli conflict. Since the signing of the Israeli-Egyptian peace treaty in 1977, active hostility to the Israeli state has gradually been replaced either by further peace treaties or a wary stand-off. As a result, the conflict has returned to its basic core, that of the dispute over possession over historical Palestine. To a large extent scholarship has reflected this trend and recently there have been an increasing number of studies focussing on what is at the very heart of the conflict: the future of the Palestinian refugees and their relationship to Israel.

It is possible to distinguish two main phases in the recent literature on Palestinian refugees, with the 1991 Madrid Middle East Peace Conference and the 1993 Oslo Accords between Israel and the Palestinian Liberation Organisation serving as the watershed. The first phase was largely characterised by descriptive studies that revealed the socio-economic conditions of the Palestinian refugees. To some extent this was driven by the close links between researchers and aid and development agencies who were interested in improving the delivery of their services to refugees. Thus, there was a focus on case studies emanating from ad hoc projects that were less directed at political solutions but more at humanitarian concerns.

Following Madrid and Oslo there was a major re-alignment between the political arena and research and an increased donor and institutional involvement in research on Palestinian refugees. The governments of Canada and Norway and the European Union took on leading roles in sponsoring policy relevant research. In this second phase, the focus was more directed towards in-depth studies on Palestinian capacities and solution-orientated studies. The role of UNRWA and the living conditions of the refugee camps, for example, were the subject of major studies. In addition, there were important and influential expositions of the positions of the main protagonists, the PLO and the Israeli government. This new phase was also characterised by a concentration on modalities for implementation. In the main, much of the government and major agency funded research adopted what could be loosely termed a “political realist” approach. There was a welcome recognition that the future of the refugees constituted an important item on the negotiation agenda, but the emphasis was more on it as a problem that had to be overcome or finessed. In the late 1990s, and particularly after the Camp David summit in 2000 between [*117] Israel, the PLO and the US, there emerged a body of research with a strong human rights agenda. This was largely in response to the indications that many in the leadership of the PLO, supported by the big donor countries, were considering the possibility of trading the rights of Palestinian refugees to return to their homes in exchange for a state in the Occupied Palestinian Territories (OPTs) of West Bank and Gaza Strip.

It is into this milieu that Ann Lesch’s and Ian Lustick’s book arrives and provides a welcome collection of contributions which both add new empirical data and provide an opportunity for more philosophical reflection and to take stock of where the research is heading. While explicitly not the intention of the editors, the book does, through its wide-ranging themes, serve as a useful reader for understanding the state of the sub-discipline and as an engaging and thoughtful introduction to some of the more difficult questions regarding identity, the legitimacy of the use of force, moral culpability.

The book begins with a general introduction by Lesch and Lustick which seeks to place the studies in their political context. Unfortunately, the prose is dense and at times the meaning is quite unclear, which does not do justice to the writing that follows. The rest of the contributions are divided into five parts. Part I includes pieces by Laleh Khalili, Elie Podeh and Sari Hanafi dealing with the broad theme of “collective memories and actual choices.” These offer highly nuanced empirical studies which emphasize the complexity of experience and how this is to be understood in policy terms. The second part on “Truth and Political Consequence” comprises two contributions. The first is by Elazar Barkan whose previous research on historical injustices elsewhere would lead one to anticipate a wealth of comparative data to help construct a balanced approach to moral responsibility. However, while impressive on the more philosophical aspects of the issue, the comparative work is disappointing and the conclusions a bit thin. The second contribution by Lustick exhibits all the hallmarks of his scholarship – forensic analysis structured by an overarching argument. In this case he addresses the very important precedent of a German apology for the Holocaust and how it was politically finessed.

The next two sections are devoted to solid empirical studies. Part III, entitled “Practical Consequences of Exile and Return,” contain contributions by Amal Jamal, Ann Lesch and Ze’ev Khanin on the internally displaced in Israel, on Palestinians in Exile in Kuwait, and Soviet Jewish migration to Israel respectively. Part IV, on property issues for Arab and Jewish migrants and refugees, includes a contribution by Michael Fischbach on the comparability of Palestinian and Mizrahi Jewish property claims, largely based on previous work, but it gives prominence to a neglected and increasingly sensitive area of research. Yehouda Shenhav’s detailed analysis of documents gives short shrift to Israeli government attempts to characterise the Palestinian [*118] exile as a population exchange with Arab Jews, and Salim Tamari offers a finely phrased and incisive examination of the strengths and weaknesses of options being discussed with regard to Palestinian property claims, and suggests a three-pronged approach to tackling this crucial question.

The final part, entitled “The Refugee Issue in Context,” comprises three contributions dealing with the long-term issue of Palestinian return. The first is a blistering and brutally clear account of the process of Palestinian dispossession and exile by Nadim Rouhana, in which he lays bare the moral and political choices available to both Palestinian and Israeli societies. The last two contributions are in essence a dialogue between two Israeli perspectives. The first, by Ilan Pappe, argues for the radical path of Israel recognising the Palestinian right of return; while the second, by Gershon Shafir, challenges this view and argues that a stable peace can only be achieved by a full Israeli withdrawal from the OPTs.

In their introduction, the editors outline the aims of the project which led to this publication, namely the development of “new thinking” from a range of political, philosophical and disciplinary perspectives. While some of the contributions are clearly based on existing work and in this sense have not met the objectives of the project, their combination and their juxtaposition alongside contrasting works ensure that, taken as a whole, the volume does offer much that is, indeed, “new thinking” and in this way is both refreshing and suggests more hope than much of the literature hitherto.

© Copyright 2006 by the author, Michael Dumper.

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THE PUBLIC FAMILY: EXPLORING ITS ROLE IN DEMOCRATIC SOCIETY

by David J. Herring. Pittsburgh: University of Pittsburgh Press, 2003. 272pp. Cloth $49.95. ISBN: 0-8229-4223-2. Paper $19.95. ISBN: 0-8229-5827-9.

Reviewed by Rosalie R. Young, Public Justice Department, State University of New York at Oswego. Email: ryoung [at] oswego.edu.

pp.113-115

The definition of family and the division of rights and responsibilities between parents and the state have been matters of considerable controversy during the latter half of the twentieth century. Media attention has prompted public, political and legal debate on such issues as gay marriage, open adoption, and contested child custody. David J. Herring has written a thought-provoking volume suggesting that this dialogue on the role of the family in democratic society has been incomplete. He advocates a richer discourse around six family functions: three functions supporting the power of the state and three functions which may serve to undermine the power of the state, while supporting the development and functioning of a pluralistic democratic society. Drawing on sources such as James Madison’s Federalist Papers 10, Robert Dahl’s work on democratic pluralism, Lee Bollinger’s tolerance theory, and Barbara Bennett Woodhouse’s writings on parental and children’s rights, Herring describes three positive functions of the family: producing democratic citizens, relieving the state of the burden of caring for dependent citizens, and diminishing the power of other intermediate associations that could challenge the state. He makes a strong case for the three subversive functions that check state power and promote a “rhetoric of associational respect,” including the family’s role in the creation and maintenance of a broad array of intermediate associations, the production of adults capable of forming strong intermediate associations, and the development of citizens with associational tolerance.

Herring demonstrates the adaptive ability of the family by drawing on American slave narratives, studies of the Israeli kibbutz, and a review of the frontier families in the American west. Despite the family disruption these experiences caused, family ties remained resilient, demonstrating the strong human preference for family associations.

While the family may be viewed as a private sanctuary with a strong public support of parental rights, Herring points out that public policy has invaded this sanctuary by promoting mandatory education and protection from abuse. Single parent families and others viewed by society as “deviant” are subject to greater scrutiny. He elaborates on the feminist arguments against the current political construction of the family and uses court cases and specific family scenarios to clarify his points and make American public policy come alive for the reader.

Herring recognizes that the three facilitative functions that promote the state are not as positive or as firmly [*114] based as they seem. He notes that other intermediate associations beyond the immediate family can serve to socialize children. He describes the “autonomous individual” free from state support as a myth and demonstrates the variety of state supports given to the traditional family, such as tax relief and homesteading laws. He points out that the impact of expert advice and public pressure has limited the diversity of family associations, diminishing the family’s ability to support a pluralistic democracy.

Drawing on Madison’s fear of a tyranny of the majority, Herring suggests that the intermediate associations promoted by the family, such as religious affiliations, will limit the power of both the state and factions. Further, the diversity of families and the family’s influence on child development will result in differing political, economic, and social interests, leading to the heterogeneity of citizens. Finally, despite what Herring calls society’s “general impulse to intolerance,” the family will promote associational tolerance, due to the variety of families and family associations and government restraint in invading family life.

Herring devotes two critical chapters to a discussion of the battle between “adult constituencies,” parents and the state, over the future of children where custody is in dispute. He describes the benefits and damage caused by state support of the conflicting philosophies of parental rights and best interests of the child standards. Either standard gives the state the ability to enforce or disrupt family associations. The more recent best interests of the child standard, Herring suggests, may lead to less family diversity, as legal decisions are reinforced by the media’s focus on the advice of child-rearing experts and the display of positive, if unrealistic, parenting on popular television shows.

In conclusion, Herring suggests that a focus on a “rhetoric of associational respect” would avoid the damaging extremes of either parental ownership of their children, or state determination of which home would lead to a more optimal childhood. When state power dominates, both children and parents learn of the strength of the state and the minimal power of parents. Associational respect, he suggests, would lead to a focus on parental responsibility, positive child development, and the production of good citizens, rather than on the rights and power of either parents or the state. The diversity of families and associations would be protected.

Throughout this very readable volume, Herring draws on past, current and future social, legal and political debates. His goal is to promote the discussion of family issues and turn the focus away from individual rights. He describes both the legal issues and the participants in precedent setting cases, such as MEYER v. NEBRASKA (1923), SANTOSKY v. KRAMER (1982), WISCONSIN v. YODER (1972), and DESHANEY v. WINNEBAGO COUNTY DSS (1989). He demonstrates the conflicts in famous disputes like those surrounding Baby Jessica, and uses public policy issues such as gay and lesbian marriage and adoption to make his discussion relevant, [*115] clear, and interesting for a broad readership. While all readers may not share his theoretical conclusions, he has met his goal of promoting the thoughtful discussion of family functioning and public policy.

In addition to prompting dialogue among politicians, sociologists, political scientists, legal scholars, and political philosophers, Herring has clearly summarized both sides of many of the controversies that are facing our courts and legislatures. The material in Herring’s volume would be more readily accessible, however, if the author had included a traditional bibliography. Finding previously cited cases or documents often requires a scavenger hunt through both the index and the footnotes.

CASE REFERENCES:
DESHANEY v. WINNEBAGO COUNTY DSS, 489 US 189 (1989).

MEYER v. NEBRASKA, 262 US 390 (1923).

SANTOSKY v. KRAMER, 455 US 745 (1982).

WISCONSIN v. YODER, 406 US 205 (1972).

© Copyright 2006 by the author, Rosalie R. Young.

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THE INTERNATIONAL CRIMINAL COURT

by Olympia Bekou and Robert Cryer (eds). Plymouth: Ashgate, 2004. 550pp. Hardback. $275.00/£135.00. ISBN: 0-7546-2409-9.

Reviewed by Rachel Kerr, Department of War Studies, King’s College London. Email: rachel.kerr [at] kcl.ac.uk

pp.106-112

THE INTERNATIONAL CRIMINAL COURT is an edited collection and forms part of the Ashgate Library of Essays on International Law, edited by Robert McCorquodale. The aim of the series is to provide the “essential elements” for the development of knowledge of international law, crucial for all who are involved as practitioners or students of international relations. Although in some respects international criminal law is a relatively under-explored branch of international law, there has been an explosion of articles addressing various issues as a result of the establishment and now more than 10 years’ operation of the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Each of these institutions deserves a volume in its own right. Olympia Bekou and Robert Cryer, who edited this volume, chose to focus exclusively on the International Criminal Court, established on 1 July 2002, upon the sixtieth ratification of the 1998 Rome Statute. Even with this somewhat narrower focus, the task of selecting and ordering articles is a difficult one. The aim of the book is to provide an overview of the Court and the debates that surround it. Does it succeed?

In general the organisation and coverage are sensible and well thought out. Essentially, it is a Reader, and the articles selected for the book are reproduced exactly as they first appeared. The selection succeeds in bringing together a range of views on the Court and the various issues surrounding it and includes some of the most prominent and highly respected authors in the field, many of whom were directly involved in the negotiations on the Rome Statute. Nevertheless, one can always point to omissions in a volume of this kind, where it is impossible to cover everything. In particular, legal issues and legal scholars dominate the collection. Bekou and Cryer explicitly aim to bring together perspectives from international law and criminal law, but it might also have been illuminating to add more from international relations scholars. Political-legal or purely political issues are tantalizingly alluded to, but these issues are often not fully explored, where rich discussion might have contributed to overall understanding.

This is particularly the case because establishment of ad hoc tribunals and the International Criminal Court marked a significant departure in international relations, as well as in international law, that merits more detailed examination than is given here. As the editors point out, in 1990 the establishment of a [*107] permanent international criminal court seemed a long way off, if not impossible. Establishment of the ad hoc tribunals was an important catalyst, which forced the prospect of a permanent court back on the international agenda. Once this happened, progress was startlingly quick, resulting in adoption of the Rome Statute of the ICC just over five years after establishment of the ICTY by a vote of 120 to 7 (with 21 abstentions). Whilst the editors discuss these developments in the introduction, the volume does not address the question of how and why this happened. Why was it that, as David Forsythe argued “What started out mostly as a public relations ploy, namely to create an ad hoc tribunal to appear to be doing something about human rights violations in Bosnia without major risk, by 1998 had become an important global movement in international criminal justice” (p.xi, quoting Forsythe 2000, at 221).

The volume launches straight into the ICC, with an article by Philippe Kirsch and John Holmes, detailing the negotiations at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held at Rome from 15 June to 17 July 1998 and the adoption of the Statute. Kirsch and Holmes were intimately involved in these negotiations as government delegates for Canada, and Philippe Kirsch was later appointed the first President of the ICC. They provide a first-hand, detailed account of the conference, which is valuable in as much as it gives a real sense of the enormity of the issues still to be resolved when the conference opened, including seemingly intractable differences of opinion over fundamental issues of jurisdiction, the role of the Prosecutor and the role of the Security Council. William Schabas takes up this theme, from a different perspective, the other side of the sixty ratifications and the Rome Statute’s entry into force, in July 2002. This “remarkable achievement” came about, he argues, not because the Statute is perfect, but because it represents a promising and realistic mechanism, consistent with the logic that international justice contributes to peace and security (p.73).

The conference reached its denouement with the presentation, by the Bureau of the Committee of the Whole of the Conference, of a Draft Statute passed to delegates in the early hours of 17 July and adopted later that day. Kirsch and Holmes attribute this “historic achievement” to the degree of broad support for a court, whatever its form, from the so-called Like-Minded Group (LMG), who otherwise differed on specific points (p.36), to the commitment of individual delegates (p.37) and to the strong, vocal and committed support of civil society and NGOs. The final package presented by the Bureau was sufficiently accommodating to the diverse viewpoints that nothing was deemed important enough to scupper the entire undertaking. It was described elsewhere by Gerry Simpson as “an uncomfortable amalgam of near irreconcilable positions” (p.xii, citing Simpson 1999).

Antonio Cassese’s piece picks up on the marked differences inherent in the treaty, which set in stark relief the many legal and political disputes and compromises reflected in the Statute’s final form, and the myriad issues yet to be resolved. Cassese’s ‘Preliminary Reflections’ on [*108] the Rome Statute is, as the editors of the volume point out, more than its title suggests. It is preliminary in the sense that it was very early days in the Court’s life (the article is a version of a paper given by Cassese in November 1998, less than six months after the Rome Statute was adopted). Key issues still to be resolved were the definition of criminal aggression, the elements of the crimes (now decided upon by the States Parties), and specification of prohibited weapons. These elements, along with what Cassese views as an overly conservative interpretation of the applicable law, especially in maintaining a distinction between international and non-international armed conflict, mean that its contribution to substantive law was somewhat retrograde (p.47).

Some of the issues highlighted by Cassese are picked up in Part 2, which deals with substantive law. William Schabas and Otto Triffterer both address the complexities and challenges of mounting prosecutions for genocide, specifically in proving the mental element of the crime – the intent to destroy, in whole or in part, a particular group. They come to very different conclusions, however. Schabas argues pragmatically that since the threshold is so high, genocide should only be charged in serious cases involving widespread and systematic crimes, otherwise it risks wasting valuable resources. Triffterer argues for a broader interpretation of the mental element so that steps can be taken earlier to prevent genocide, but he fails to address the wider political and practical problems of enforcement. Daryl Robinson provides an exposition of crimes against humanity, focusing on the developments in international law reflected in the Rome Statute, namely that there is no nexus required to armed conflict of any kind, there is no requirement to prove a discriminatory motive, and that crimes of apartheid and forced disappearance are now explicitly recognised as crimes against humanity. Thomas Graditzky discusses war crimes issues at the Rome Conference, one of the more contentious issues with regard to substantive law. Graditzky’s piece is a helpful overview of a complex set of issues and discusses both what made its way into the Statute, and more crucially what was left out and why. Kai Ambos discusses general principles of law, in particular individual criminal responsibility and defences, bringing a criminal law approach to a field that is largely dominated by international lawyers, an explicit aim of the book. Charles Garraway’s contribution on defences is more contentious. He argues against the grain of many prominent international legal scholars that Article 33 of the Rome Statute, providing for superior orders as a defence, is an accurate statement of international humanitarian law and represents a “sensible and practical solution,” offering a limited defence for lower-ranking soldiers to war crimes (not crimes against humanity or genocide) (p.185). It would have been helpful to the reader here to have included the other side of the argument (e.g., Gaeta 1999), although if one refers back to Cassese’s piece, there is discussion of this issue (pp.53-54).

Cassese is more positive about the Rome Statute’s contribution to procedural [*109] international criminal law, which he says represents a “major advance” (p.50, see also Fernandez de Gurmendi and Friman in Part 4), and his overall conclusion is that the Statute represents a “luminous page in world history,” despite being “too obsequious to state sovereignty” (p.68). Cassese reflects a view that runs through this book (with the obvious exception of John Bolton’s essay on the ICC), namely that the establishment of a permanent ICC is a significant achievement that should be applauded, but that the precise details of the substantive law and enforcement mechanisms of the Court leave something to be desired. If the Court fails to fulfill its mandate, it is because it was not bold enough, a reflection of the international political environment in which it was created. It cannot be more than the sum of its creators.

This was especially apparent with regard to one of the most difficult and highly contentious issues in the negotiations at Rome, namely jurisdiction and admissibility. Part 3 discusses these issues. Dapo Akandi addresses the concern, expressed most forcefully by the United States, that jurisdiction over non-parties on the basis of territoriality or Security Council referral is contrary to international law. It is not contrary to international law, he asserts, and the measures taken by the US in particular to shield its citizens will not add to the safeguards already contained in the Statute. One of these safeguards is the principle of complementarity, but in discussing this, John Holmes does not give us any clearer idea of what the criteria of “unwilling” or “unable” might mean in practice. Hans-Peter Kaul and Claus Kress discuss issues of jurisdiction and admissibility in connection with state cooperation, which, they argue, are inextricably linked (p.193). They provide a detailed account of the negotiations that produced the form of jurisdiction and emphasise the “essential paradox of complementarity” when it comes to state cooperation (p.xix). What emerged from the discussions was not the “ideal” of universal jurisdiction twinned with a “vertical” cooperation regime, as practiced by the ad hoc tribunals, but a more qualified approach, and this will have significant implications for the Court’s operation.

It has been noted elsewhere that the ICC, like the ad hoc tribunals, is “a giant without arms and legs.” In order to function, it needs state authorities, but unlike the ICTR and ICTY, it lacks the force of the vertical cooperation regime and the enforcement power of the Security Council. Part 4 of the book comprises articles addressing what promise to be the more contentious issues as the Court begins to operate, namely surrender of “war criminals” (Goran Sluiter), immunities (Steffen Wirth) and the relationship with the Security Council (Morten Bergsmo). Sluiter raises an interesting and important question of whether the cooperation regime might be augmented and strengthened where a case is referred by the Security Council, creating the structure of an ad hoc tribunal within the permanent framework of the ICC (p.286).

A crucial element in determining success for the Court will be the appointment of an astute Prosecutor with “political [*110] smarts” (Schabas, p.79). Certainly, the experience of ICTY has demonstrated the importance of having a strong, independent Prosecutor, able to play a political and diplomatic role, without jeopardizing judicial independence and integrity of the post. The Prosecutor must also be able to operate with an understanding of the relationship between international justice and international peace and security. In particular, he or she will have to resolve difficult questions regarding how to determine whether prosecution is “in the interests of justice.” Linked to this is the question of amnesties. If an amnesty is deemed necessary in order to secure an end to a particular conflict, what is the position with regard to ICC jurisdiction? This issue has been raised in many quarters and is discussed by Michael Scharf. Scharf argues that, notwithstanding the legal obligation to prosecute grave breaches of the 1949 Geneva Conventions and Genocide, the Statute is sufficiently ambiguous to allow for due account to be taken of non-judicial mechanisms for truth-telling and accountability. He uses the examples of Haiti and South Africa to illustrate the advantages of a flexible approach, where the benefits of prosecution may have been outweighed by the disadvantages, although in both cases, the issue is not quite as clear as he suggests. In Haiti in particular, setting aside prosecutions may have stored up trouble for the future (Mobekk 2000).

Morten Bergsmo takes up the theme of peace versus justice in his interesting piece on the Court and the Security Council. Bergsmo identifies a delicate balancing act of international justice with international peace and security and discusses this in relation to the early years of operation of the ICTY, for which he was a Legal Advisor in the Office of the Prosecutor. He identifies five sets of criteria of more general salience, namely, to ensure respect for independence of the judicial process, willingness to arrest suspects, non-applicability of immunities, compliance with cooperation requests, and respect for human rights values. These measures seem to be aimed more at securing the interests of international justice and say little about the standards that international judicial mechanisms might need to adopt to safeguard the interests of peace and security. The relationship between the Security Council and the ICC is crucial in this regard, and, as Bergsmo notes, we ought to be moving toward what Frank Berman calls a “perfect symbiosis” of the interests of international justice and international peace and security (p.385). Bergsmo notes the importance of the Prosecutor in exercising discretion which takes account of the wider interests of justice and peace. The conduct of the Prosecutor will also be crucial in establishing the integrity of the ICC as a whole; as Bergsmo points out, the stance taken by the ICTY Prosecutor over allegations of misconduct by NATO in the Kosovo campaign might have helped to demystify the process of determining what to pursue and what not to pursue and to generate a level of comfort sufficient to see many of these states supporting an independent Prosecutor at Rome (p.378). It remains to be seen how all of this will play out in practice. To date, there has been one referral by the Security Council (Sudan) [*111] and discussion of another situation in which the interests of justice and those of peace might seem to be in conflict (Uganda).

The last section of the book considers future prospects for the ICC, but the selections are somewhat dated, as they were written before the Court came into operation. Much of it is concerned US opposition to the Court, a recurring theme. In an earlier section, Schabas talks of the “Scylla and Charybdis” of opposition from the world’s most powerful state (p.71). To make the US Government’s case, the editors chose a 2000 article by John Bolton, then Senior Vice President of the American Enterprise Institute, and now US Ambassador-designate to the United Nations. Bolton is one of the most vehement critics of the ICC, and his views reflect the more emotional response characterised in much of the debate in the US. What comes through most strongly from Bolton’s piece, identified by David Forsythe as the element underpinning US objections to the court, is “exceptionalism” and a commitment to “power politics.” It might have strengthened the volume to also have included more reasoned arguments, such as those of Ruth Wedgwood (1999) or David Scheffer (1999), as well as the opposing arguments (Hafner, et al. 1999). These reflect a different view—not, as Schabas argues, simply the kind of opposition to international justice per se expressed by Bolton, but opposition to the form it finally took at Rome (p.74).

Generally, while the legal objections to the Court put forward by the US Government are unconvincing, the political implications of these objections are potentially disastrous. In the concluding piece, Robert Cryer and Nigel White address one manifestation of the US objections in their attempt to shield US peacekeeping forces from the Court’s jurisdiction. Notwithstanding the fact that Cryer and White note that Resolution 1422 was deeply flawed in legal terms, it should be viewed in the context of debates about the role of the Security Council at Rome. In light of these debates, the Court’s success may lie in managing a delicate balancing act between the interests of international justice and those of international peace and security.

REFERENCES:
Forsythe, David P. 2000. HUMAN RIGHTS IN INTERNATIONAL RELATIONS. Cambridge: Cambridge University Press.

Gaeta, P. 1999. “The Defence of Superior Orders: The Statute of the International Criminal Court Versus Customary International Law.” 10 EUROPEAN JOURNAL OF INTERNATIONAL LAW 172-191.

Hafner, G., K. Boon, A. Rubesame and A Huston. 1999. “A Response to the American View as Presented by Ruth Wedgwood.” 10 EUROPEAN JOURNAL OF INTERNATIONAL LAW 108-123.

Mobekk, E. 2000. “The Missing Ingredient: Justice in the International Intervention in Haiti.” 15 INTERNATIONAL RELATIONS 30-40. [*112]

Scheffer, D.J. 1999. “The United States and the International Criminal Court.” 93 AMERICAN JOURNAL OF INTERNATIONAL LAW 12-22.

Simpson, G. 1999. “Throwing a Little Remembrance on the Past: The International Court and the Politics of Sovereignty.” 5 UNIVERSITY OF CALIFORNIA, DAVIS, JOURNAL OF INTERNATIONAL LAW AND POLITICS 133-146.

Wedgwood, R. 1999. “The ICC: An American View.” 93 EUROPEAN JOURNAL OF INTERNATIONAL LAW.

© Copyright 2006 by the author, Rachel Kerr.

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