LATIN AMERICAN LAWYERS. A HISTORICAL INTRODUCTION

by Rogelio Pérez-Perdomo. Stanford, CA: Stanford University Press, 2006. 184pp. Cloth. $50.00. ISBN: 0-8047-5126-9.

Reviewed by Julio Ríos-Figueroa, Department of Politics, New York University. Email: jrf246 [at] nyu.edu.

pp.391-395

Over the last three decades virtually all Latin American countries have reformed their legal systems. The range of reform is as broad as the region, including changes in tenure, appointment, and impeachment procedures for judges; creation of judicial councils, constitutional courts, and autonomous prosecutorial bodies; creation of alternative dispute resolution mechanisms, adoption of oral trials, and improvements in information transparency; and, changes in legal education, law schools, and bar associations. The previous list is ordered, roughly, according to the degree of attention that political scientists have devoted to these different areas of reform. Rogelio Pérez-Perdomo, a prominent Latin American lawyer and sociologist of law, has written a book that synthesizes the existing knowledge about this last, important but neglected topic on the list: the legal profession in Latin America.

Pérez-Perdomo has first-hand knowledge because he has been an active participant in the movements to reform legal education and the administration of justice in Latin America since the 1970s. After obtaining his law degree in 1964 at the Universidad Central of Caracas, Pérez-Perdomo continued his education at Harvard and the Sorbonne. He has written extensively on the legal profession and litigation. The author thus brings to this book not only extensive practical knowledge but also an impressive record of scholarship.

The book starts from the premise that lawyers are crucial to understanding state legal systems and societies. “They have special knowledge and skills to operate the legal and political system, and their role is to articulate for the individuals and business within the state” (p.viii). As Pérez-Perdomo points out, the novelty of the book is its scope, which covers the history of Latin American lawyers over five hundred years and across eighteen countries. There is already an abundant literature on the legal profession in each country of the region, but these national studies are written from many different perspectives and tend to center on lawyers’ political role or contribution to the local legal community. In contrast, this book attempts to synthesize existing knowledge around “the relation of lawyers and politics” proposing “to connect occupation, knowledge, and political role” (p.viii). As the author puts it, “the enterprise is like the task of creating a picture of a landscape using pieces of photographs from different places, taken by various photographers at different times and from different angles” (p.51). [*392]

Pérez-Perdomo successfully achieves the daunting task of synthesis. In four chapters and relatively few pages, he lays out the main themes regarding the role of lawyers in the civil law tradition (chapter one), the complex relation of lawyers in the colonies with the Spanish and Portuguese crowns (chapter two), the important role of lawyers during the wars of independence and the rise of new nation-states (chapter three), and the more recent role of lawyers in the region’s development since the 1950s (chapter four). Three recurrent themes can be identified as the backbone of the book: the relative growth in the legal profession in Latin American societies since colonial times, their persistent relations with political power, and the fact that changes in legal education have tended to correspond to crucial breaks in Latin American history.

The relative number of lawyers in Latin American countries has been steadily increasing. Data are scarce, especially for earlier periods, but figures from the last twenty years of Spanish colonial rule (1790-1810) show that the average number of lawyers per 100,000 habitants was about 10 (p.33). By around 1940, the average had increased to a not particularly impressive 38 (p.86). But a boom has taken place since the 1950s, pushing the average by the year 2000 to 189 (p.114). That average masks important differences across countries, however, since the number of lawyers per 100,000 habitants varies from 85 in Ecuador (1991 data) to 345 in Argentina (2001 data; a figure close to that of the United States with 379 lawyers that same year, according to the American Bar Association).

The relation of lawyers to political power has also changed significantly over time. Pérez-Perdomo argues that, during the colonial period, being a lawyer was more a matter of honor and status than a profession that was necessary to practice the law. Judges did not need to be lawyers, who rather usually advised the former, and in practice lawyers were not necessary for legal representation; indeed, in some tribunals their appearance was even prohibited (pp.19-23). In contrast, after 1808 lawyers were working on providing legal justification for the wars of independence (p.46) and later became active participants in the “construction of nations” by writing constitutions, codes, and legislation of the new states (pp.53-69). These constitutions were of different ideological strands, including some authoritarian ones, but there were lawyers participating in all of them (see Gargarella 2005). After 1950, Pérez-Perdomo argues, the practice of law became more of a profession, a way of earning one’s life. While the State continued to be the main employer of legal professionals, their specialized knowledge became increasingly necessary for a bigger and more complex legal system. It has only been during the last thirty years that the private practice of law has expanded beyond serving the interests of lawyers’ traditional clients: the wealthy elite and big corporations (pp.116-120).

Legal education is the other main issue that is recurrent through the book. Pérez-Perdomo emphasizes the change in conception of law over the nineteenth century, from the “casuist” or case-centered view that prevailed during the [*393] colony and the first years after independence to the “rational expression of the will of the people” characteristic of the 1890s (pp.67-69). The author interestingly traces this change by contrasting the law curricula at the beginning of the nineteenth and twentieth centuries in order to show the effects of codification efforts that took place during the nineteenth century in the way law was conceived and taught (pp.75-77). This topic appears again in the last chapter, in which Pérez-Perdomo discusses current efforts to reform legal education in the region, including providing lawyers with case materials and discussing the substance of law, rather than following the path of traditional legal education, which had focused on rote memorization of legal codes (pp.102-113).

Added together, these trends raise a number of interesting questions. To mention one, the increasing proportion of lawyers in Latin American society, coupled with the recent efforts to change legal education, may help to produce what Charles Epp (1998) called the “support structure” for a “rights revolution” in the region. Across Latin America there is interesting variation in institutional structures, and as Pérez-Perdomo shows, also interesting variations in the number of lawyers, legal education, and their political role. There are studies on Argentina, for example, that show that the participation of a wide coalition of societal forces has proved crucial for maintaining judicial independence (Chavez 2004), and promoting the rule of law (Smulovitz 2003). And Argentina, as mentioned above, is the Latin American country with the largest relative number of lawyers. Further comparative research on the combination of political conditions, institutional reforms, and societal forces in the construction of the rule of law seems worth pursuing.

Perhaps because of its ambitious scope, however, the book lacks a comprehensive theory linking the different chapters, leaving this role to chronological succession. In this regard, the absence of a theoretical introduction and a general conclusion summarizing the main findings are particularly conspicuous. To be fair, the author explains in the Preface that the book grew out of four lectures given at the Universidad Diego Portales in Santiago, Chile, so that the discrete nature of the chapters corresponds to their origin. Each chapter constitutes a rich mine of research questions and data that could be exploited more systematically by other scholars interested in the relation between lawyers and politics especially, but not exclusively, in Latin America.

One such theme is judges. In a book on the history of lawyers over five hundred years across eighteen countries, the relatively infrequent discussion of judges is remarkable. It is only at the end of the book, devoted to the past three decades, that the author addresses the role of judges directly. This speaks volumes about the relative importance of judges in the region until recently. Nevertheless, judges were important political actors during colonial times, but, because they did not need to be lawyers, Pérez-Perdomo regrettably does not dedicate more attention to them. In chapter two, he offers the interesting [*394] observation that during the colonial era, recourse to courts – Audiencias, Consejos de Indias, special tribunals, and other similar institutions that follow the “logic of the triad” (Shapiro 1981) – was greater than the demand for lawyers. From a political science perspective, I found the high degree of litigiousness and what is now called “judicialization” fascinating, since many conflicts on day-to-day as well as top political issues were settled in court-like forums during this period (cf. pp.34-37). A longer perspective of the current phenomenon of judicialization raises questions about economic, social structure, institutional, and ideological issues as determinants of the degree of litigiousness.

After independence, turbulent political conditions throughout the region coincided with the codification boom and the idea that judges should merely apply the law to particular cases, contributing to their political irrelevance. Throughout the twentieth century, and continuing today, military coups, court packing, and subordination of lower court judges have limited the role of judges in Latin America. However, as Pérez-Perdomo argues, the last rounds of attacks on judges respond more to their increasing importance in the political sphere and less to the traditional view of judges as mechanical appliers of the will of legislators to particular cases (pp.126-131). This new role of courts and judges is, in part, explained by the rise of constitutional adjudication in the region that is becoming a vibrant area of research among political scientists interested in Latin America.

To conclude, Pérez-Perdomo combines scholarship with first-hand knowledge to successfully synthesize for the first time a multitude of national studies on the history of lawyers that vary in goal, approach, and depth. In addition, he opens a number of avenues for future research, not only for political scientists but for historians, lawyers, and sociologists of law as well. This volume constitutes an important academic contribution as well as a fascinating long term perspective into a profession that is crucial for the conduct of modern states and the improvement of justice and the rule of law in Latin America.

REFERENCES:
Chavez, Rebecca Bill. 2004. THE RULE OF LAW IN NASCENT DEMOCRACIES: JUDICIAL POLITICS IN ARGENTINA, Stanford: Stanford University Press.

Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press.

Gargarella, Roberto. 2005. “The Constitution of Inequality: Constitutionalism in the Americas, 1776-1860.” 3 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 1-23.

Shapiro, Martin. 1981. COURTS. A COMPARATIVE AND POLITICAL ANALYSIS, Chicago: University of Chicago Press. [*395]

Smulovitz, Catalina. 2003. “How Can the Rule of Law Rule? Cost Imposition Through Decentralized Mechanisms.” In José María Maravall and Adam Przeworski (eds.), DEMOCRACY AND THE RULE OF LAW. New York: Cambridge University Press.

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© Copyright 2006 by the author, Julio Ríos-Figueroa.

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VICTIMS IN THE WAR ON CRIME: THE USE AND ABUSE OF VICTIMS’ RIGHTS

by Markus Dirk Dubber. New York: New York University Press, 2002. 412pp. Cloth. $50.00. ISBN: 0-8147-1928-7. Paper (2006). $24.00. ISBN: 0-8147-1929-5.

Reviewed by Liane C. Kosaki, Department of Political Science, University of Wisconsin-Madison. Email: lkosaki [at] polisci.wisc.edu

pp.387-390

Markus Dubber’s purpose in this interesting book is evident in its title. He is interested not in victims of the war on crime, but in victims in the war on crime, and the choice of preposition is significant. Dubber focuses on the way that the role of victims has been used by policy makers as part of the war on crime. By examining the use of victims, he brings to light the ways in which the appeal to victims’ rights is used to serve the interests of the state. What is also of importance to him is that, although policy makers are quick to use victims’ rights as a justification for policy change, the policies proposed and adopted in their name do not serve victims’ interests. What has happened instead is that the victims’ rights movement has been co-opted by policy makers to justify increasing the punitiveness of the criminal justice system not only in sentencing, but by broadening the range of conduct that is defined as criminal to enable greater state control over individuals.

The other major argument in this book is a normative one: that the victims’ rights movement needs to be divorced from the war on crime. As Dubber puts it: “The time has come to free victims’ rights from their use as a tool for the achievement, maintenance, and expansion of state power. The time has come to turn the pursuit of victims’ rights from a weapon in the war on crime into a cause worth pursuing for its own sake” (p.7).

The argument that victims’ rights have been used to justify increased punitiveness is not in itself a new one. What Dubber adds is an analysis of how this argument plays out in two areas: “victimless crimes” and violent crime.

The first three chapters of the book are devoted to an analysis of the increasing use of possession and nuisance crimes by the state to achieve greater social control over individuals. According to Dubber, this policy illustrates several disturbing trends. First, the victim of these crimes is not an individual, but the state. Second, these crimes are used to punish individuals not for what they have done, but for what they might have done. Thus, arrests for weapons possession are not for anything done with the weapon, but for the threat or possibility of what might have been done with the weapon. This makes it much easier to convict, sentence, and incarcerate an individual. Third, because of the concern for victim’s rights, the focus has moved from the defendant’s rights to the rights of the victim, a victim who in this case is the state rather than an individual. [*388]

What disturbs Dubber about this last development is that it places the state in a position where it can use its power to control those who are “different” under the guise of maintaining social order and “protecting the public.” Given the nature of possession and nuisance offenses, it is an easy thing for the state to prosecute and, ultimately, incarcerate individuals:

In many cases, possession statutes also save the prosecutors the trouble of proving that other major ingredient of criminal liability in American criminal law, mens rea, or a guilty mind. This means that many possession statutes, particularly in the drug area—where some of the harshest campaigns of the war on crime have been prosecuted—are so-called strict liability crimes. In other words, you can be convicted of them if you don’t know that you are “possessing” a drug of any kind, what drug you are “possessing,” how much of it you’ve got or—in some states—even that you are possessing anything at all, drug or no drug. (p.35)

When the state takes on the role of the victim, there is also another danger involved. Because of the sympathy for victims’ rights and the ostensibly greater role played by victims in the criminal justice process, the state as victim leads to sanctions out of proportion to the actual harm done. Thus, Dubber’s concern in the first part of the book is about the state’s appropriation of the victim’s role and its impact on the definition of crime and increased sentences associated with them.

The other important issue for Dubber is the larger role for victims in the criminal justice process. What concerns him here is not that victims play a role, but that the inclusion of victims is really a means for increasing punitiveness. Thus, unless victims are “deserving” victims whose desires are consistent with the state’s desire for harsh punishment, the state’s interest in victims is non-existent. The second part of his book is devoted to a discussion of this issue and its effects.

The primary example used to illustrate Dubber’s concern in the second part of the book is homicide. His insight here is to look at the “victim” in these cases—although there is attention to the suffering of the murdered person, Dubber points out that the focus is actually on survivors. Thus, the impetus for change in criminal justice policy is based not on the actual desires of these victims (obviously, those desires cannot be ascertained). Instead, the drive comes from those who survive the victim, and policy initiatives are based on their desires. Thus, he argues that “[T]he victims’ rights movement look[s] more like the relatives of victims’ rights movement” (p.185). This confusion about who is actually a victim, Dubber argues, leads to a focus on “indirect victims,” and this articulate and sympathetic group is highly effective in getting anti-crime legislation (interestingly, anti-crime legislation that is consistent with a conservative anti-crime agenda) adopted. Dubber’s question about this set of legislation rests on its relevance and effectiveness in addressing the actual victims’ needs. For example, in one case the relative of a murder victim was instrumental in getting legislation passed allowing concealed handguns. “A murder victim could benefit from the right to carry a [*389] concealed weapon about as much as from the right to attend the execution of her murderer,” argues Dubber. “Once again, the victim’s relative is claiming a right not for the victim but for herself. . . . The victim’s rights are invoked to claim rights for another” (p.188).

Dubber’s point here is not to argue that the relatives and friends of homicide victims are not affected by the murder of their loved one. Instead, it is to argue that the focus on homicide in the victims’ rights movement is yet another example of manipulation and cooptation of the movement by those who seek to make the system a more effective and powerful force to punish and incapacitate not only criminals, but those who look like they might be criminals. The other significant point of his analysis is that the focus on homicide victims narrows the scope of the movement by looking at the most extreme victimization; this narrow scope leads away from recognition of those victimized by more common types of crime.

The analyses in the first two parts of this book are interesting and original. This is also true of Dubber’s final argument that the goal of victims’ rights ought to be to restore the victim to wholeness. If the victims’ rights movement is to achieve this goal, then the focus of the criminal justice system will be on victim compensation, rather than constructing and implementing policies that focus on prosecution and punishment of the offender. Thus, in order to truly serve victims, the state must think about victims’ rights as a movement that requires the criminal justice system to recognize both victim and offender as persons, to analyze the roles both play (or do not play) in the commission of the crime, to assess the injury that is actually inflicted on the victim as a result of the crime, and to restore the victim to full personhood. Dubber then identifies the factors that will go into the construction of a victim compensation system to achieve these goals. Although too complex to fully describe here, a major component is that the system weigh each individual incident from the standpoint of the victim’s and offender’s roles in order to assess fair compensation and punishment.

Dubber’s proposed victim compensation reform is certainly bold, for it flies in the face of at least two major principles that currently underlie the criminal justice system. First, he argues that part of the problem for American criminal law is that it is based British law. British law, as summarized by Blackstone, assumes that there is a king. Thus:

[T]o Blackstone the power to police was simply the king’s patriarchal prerogative as “father” of his people, to provide for “the due regulation and domestic order” of his subjects, conceived of as “members of a well-governed family” . . .

To reconstitute itself after the war on crime, American criminal law must find more solid ground than the eighteenth-century speculations about the nature of English royal power by an English jurist who delighted in styling himself “Solicitor General to Her Majesty.” Such a modern theory of American criminal law as state governance would take into account some of the more momentous changes that have occurred [*390] in American political life since Sir William published his COMMENTARIES, including the establishment of a democratic government built on the ideal of equal rights of persons as persons. (pp.151-152, emphasis mine)

Dubber argues for a concept of crime that does not rely on considering harm to the state—instead, it argues for considering harm to the individual. It is thus not surprising that his discussion of victim compensation sometimes relies on principles of civil law (e.g., tort law). However, in discounting the Blackstonian heritage, Dubber takes Blackstone’s concept of “sovereign” a little too literally. For in a democracy, the sovereign can rest in the collective. To discount the cost to the state, and the state’s interest in reducing crime, is to downplay crime’s cost to the larger community and the community’s justification in considering its own interest in punishment and victimization.

The other principle in the criminal justice system is that the current system operates as a bureaucracy. The requirement in that system is that cases be reduced to their commonalities and handled as quickly and efficiently as possible. Dubber’s victim compensation plan looks to me to require that cases be examined in their complexity. Although victim compensation could be handled bureaucratically, if the purpose is to restore individual victims to autonomy, then that implies the kind of consideration of individual circumstances that contradicts the routine handling that is at the heart of bureaucracy.

However, I raise these issues not to diminish the value of the argument in this book, but to illustrate the questions and arguments that came to mind as I read it. Dubber’s presentation is interesting, well-argued, and provocative. He raises new and important issues about the role and impact of the victims’ rights movement.

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© Copyright 2006 by the author, Liane C. Kosaki.

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JUST SILENCES: THE LIMITS AND POSSIBILITIES OF MODERN LAW

by Marianne Constable. Princeton: Princeton University Press, 2005. 232pp Cloth. $29.95 / £18.95. ISBN: 0-691-12278-4.

Reviewed by Paul Parker, Truman State University. Parker [at] Truman.edu

pp.384-386

Marianne Constable has produced a book that socio-legal scholars will want to wrestle with. And wrestle they will, both because the argument is provocative, and because often it is carried on at a level of abstraction to require wrestling. This review will attempt to provide access to both of these dimensions of the argument.

In a nutshell, legal scholars and socio-legal scholars do not have much to say about justice these days: modern legal scholarship is silent about justice. Constable does not think that this silence is a just (right) silence, or that it is just (mere) silence, but instead she argues that this silence speaks volumes about the state of legal scholarship and indeed about our incapacity to speak of justice: “Modern law, with its language of sociology and of power, fails to acknowledge any debt to what is unsayable. In this failure lies the particularity of the silence of modern law: it is a silence in which justice threatens to disappear” (p.177).

The book is organized around a prologue, seven chapters, a conclusion, and an epilogue. It might be helpful to begin with the Epilogue, about half of which is produced here:

Were I to write this book again, it might be much shorter. It would say:
“Law on the books doesn’t talk much about justice.”
Then I would wait for someone to say: “It doesn’t talk much but it says much,” or “Yes, it does” and to explain.
But maybe instead of waiting quietly, I – or the persons I was talking with – would first say:
“Maybe it’s taken for granted.”
“Maybe it’s unclear what it means.”
“Maybe it isn’t there anymore”
And one of us would add, “In any case it’s hard to talk about.” Although I myself would have to resist adding to this book, the book would just say:
“Yes, that was my point.” (p.179)

That point is made more clearly and fully across seven substantive chapters. Constable argues that the dominant manner of thinking about law today, sociolegal positivism, “is a symptom of current conditions, in which ‘social power’ or the power of society threatens to become the sole or unlimited frame of reference for knowing the law – or determining what to do” (p.34). Drawing on Nietzsche’s TWILIGHT OF THE IDOLS, Constable places our contemporary study of law, legal positivism, in a fourth moment of metaphysics. Gone is the Truth of Plato, the Truth of the Christian thinkers, and the moral Truth of Kant, known by reason; here in stage four, we have empirical “truths.” Perhaps we have a foot in the fifth period, to the degree we want to use such “truths” to improve society (pp.34-40). But in the absence of natural law, or other universals; in an age of relativism; there is no Truth: how, then, can one speak of Justice? [*385] Constable’s goal is to invite us to consider stage six, when “justice and the true world have been abolished” (p.41). In this final stage, justice “lies in the silences of positive law” (p.43).

And thus over the next several chapters, Constable explores how “completely embedded in power is current thinking about law.” In Chapter 2, “The Naming of Law: Sociolegal Studies and Political Voice,” Constable argues, with many refereed examples, that sociolegal studies imagine silence as lack of power (p.55). Constable asks whether we might hear silence not as a problem to be solved through defining it as consent (Locke) or providing voice to the voiceless (Habermas). Instead, silence might actually promote justice in some forums, as she explores in regards to MIRANDA warnings in Chapter 7.

In the third chapter, Constable discusses further our present assumptions that law is empirically knowable, and that law is about power or control. She challenges our assumption that voice is empowerment using two cases of legislation that sought to provide voice to American Indians. The Native American Languages Acts of 1990 and 1992, and to the Native American Graves Protection and Repatriation Act of 1990 provided a mechanism for American Indian voice to be preserved, or exercised, respectively. But maybe some things are unspeakable: while the government established a channel for voice in the repatriation of Indian artifacts, perhaps the sacredness of religion prohibits the speaking. And while the Great White Father may think it important to preserve dying languages, she relates the story of the speaker of a dying native language who was uninterested in talking with another speaker for the sake of preserving the language. Some things matter more than voice: He really did not like her kind.

And perhaps some things should not be said, or heard. In the fourth chapter, Constable considers popular and press reaction to the Supreme Court’s flag burning decisions. After TEXAS v. JOHNSON (1989) public officials sought to amend the Constitution, or otherwise negate the court ruling. Against the popular narratives that such scheming politicians were strategically trying to evade “the law” as announced by the Court, Constable asks us to consider whether some things are held sincerely to be unspeakable – or unhearable.

The next two chapters address contemporary legal theory directly. Chapter 5 focuses on Frederick Schauer’s positivism, and it is nicely tied to Chapter 6 on Robert Cover and the violence of law. Schauer, in PLAYING BY THE RULES, “does not deny justice; he barely asserts its irrelevance.” Continuing, “But silence as to justice, in a work on rules that suggest it provides an account of ‘law; as we conventionally call it,’ does say something” (pp.130-31). Cover provides an account of the violence of positive law and is critical of the interpretive move in law. However, Constable argues, it is in this overlooked arena – this silence – we might find justice (p.135; p.148). Just as the violence of modern law warns of the danger of forgetting justice, so does the overlooked arena of interpretation: “The [*386] poet . . . may still remind persons of their need for justice” (p.148).

In Chapter 7, “Brave New Words: The MIRANDA Warning as Speech Act,” Constable argues “the possibility of a just trial relies in part on an understanding of speech that is itself inextricably joined with silences (p.150). This case is Constable’s example of how her new way of thinking about law and justice might proceed.

Prior to the Epilogue, there is a four page conclusion in which Constable identifies four themes of her work: modern law is a social and sociolegal phenomenon, in which justice and its possibility appears lacking, aided and abetted by language, except for the language of justice (pp.175-76). Rounding out the text are two appendices (Nietzsche’s six stages, and a letter to the editor she analyzes in an early chapter), a bibliography (modal entries: Heidegger, Constable, Nietzsche, Sarat, Freud) and an index.

Scholars interested in law and power and the construction of knowledge will benefit from thinking about the state of legal knowledge and the law in this, our metaphysically fourth or fifth real world. The entire book will be of most interest to sociolegal scholars, many of whom will recognize the individual chapters from their appearance in journals over the past 15 years. That the majority of the substantive chapters have been articles means some chapters are quite accessible as stand-alone pieces, especially Chapter 3 on laws promoting American Indian voice, and Chapter 4 on flag burning. On the other hand, Schauer’s positivism and Cover’s violence (p.6) fit together in ways that aided each. For those interested in an accessible critical treatment entrée into sociolegal studies, Chapters 1 and 2 may be sufficient. Consistent with the aim of her project, considering the silences of laws in the myriad ways is provocative.

REFERENCES:
Nietzsche, Friedrich. 1968. TWIGHTLIGHT OF THE IDOLS. (trans. R.J. Hollingdale). London: Penguin.

Schauer, Frederick. 1991. PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE. Oxford: Clarendon Press.

CASE REFERENCES:
MIRANDA v. ARIZONA, 384 US 436 (1966).

TEXAS v. JOHNSON, 491 US 397 (1989).

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© Copyright 2006 by the author, Paul Parker.

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ROUSSEAU AND LAW

by Thom Brooks (ed). Aldershot, England: Ashgate, 2005. 464pp. Hardback. $225.00/£110.00. ISBN: 0-7546-2441-2.

Reviewed by Benjamin Gregg, Department of Government, University of Texas at Austin. Email: bgregg [at] mail.utexas.edu
and David Williams, Departments of Political Science and Philosophy, University of Wisconsin at Stevens Point. Email: David.Williams [at] uwsp.edu

pp.372-383

This volume, edited by Thom Brooks, reprints photocopies of sixteen already-published journal articles, original fonts and page numbers unchanged. What is the value of compiling already published articles? What is gained by republishing what can be located instantly on the internet or in the library? This particular volume cannot tell us, as it does little to redeem the genre to which it belongs. It is absurdly expensive. Worse, it is somewhat sloppy (the editor neglected to correct typographical errors in the original articles and mislabels one section “National Law and Natural Rights” instead of “Natural Law and Natural Rights”). And it includes two articles whose inclusion is difficult to justify. Kristin Carpenter’s “Promise Enforcement in Public Housing: Lessons from Rousseau and Hundertwasser” unthoughtfully, uncritically, and unlearnedly uses Rousseaean technical terms (social contract, general will) merely as labels for facets of an argument for improving life in public housing by reconfiguring it architecturally and politically; it adds nothing to our understanding of Rousseau or to his relevance to contemporary issues. Joshua Cohen’s “Reflections on Rousseau: Autonomy and Democracy” is itself a review of secondary literature, indeed one that develops no particular perspective of its own.

These misgivings about the anthology as genre do not detract from the intrinsic interest of many of the essays included. They fall into several groups: (1) metaphysical versus postmetaphysical readings of supposedly transcendental truths in law and justice, (2) motivation to obey law, (3) rationality versus emotional affect in law and justice, (4) the politics of the general will, and (5) additional sundry issues and topics.

1. Metaphysical Versus Postmetaphysical Readings: On Transcendental Truths in Law and Justice

Robert Wokler, in “Rousseau’s Pufendorf: Natural Law and the Foundations of Commercial Society,” takes C.E. Vaughan’s side of a storied natural law debate with Robert Derathé (i.e., that Rousseau is more or less a positivist). He notes that, for Rousseau, “Moral rights could only be established in specific communities formed by the agreement of their members” (p.249). While true, Wokler neglects a significant qualification: the agreement must be to certain principles. That is, not every manifestation of the will of all equates to the general will. In this respect Derathé [*373] would seem to be right and Vaughan wrong, at least for the metaphysically inclined reader.

A postmetaphysical reader might focus elsewhere: Wokler discusses Rousseau’s claim that the social-cultural morally harms what, without the social-cultural, is morally good: the (unsocialized) individual. No one disputes the claim that social-cultural life has some harmful features or the claim that social-cultural life has some positive aspects. But the claim that the human individual has a moral status somehow outside and prior to social-cultural life makes no sense from the vantage of empirical social science. Here Rousseau does not appear to be Vaughan’s positivist.

“Rousseau in Dworkin: Judicial Rulings as Expressions of the General Will,” by Richard Nordahl, explores the tension between individual rights and modern political community (in terms of a republic): “individual rights are not inimical to community but in fact are basic to it, helping ensure that all are accorded, on equal terms, moral membership in that community” (p.295). Rousseau and Dworkin both construct political community that, at points, is anti-individualist, indeed hegemonic or authoritarian. Rousseau asserts that persons opposing the “general will” can be forced legitimately to obey (“forced to be free”). For Dworkin, liberal society is characterized by certain basic principles that judges properly interpret in ways that must be valid for everyone to the extent that everyone is part of a genuine association (“law as integrity”). Neither author can avoid unintended, indeed unwanted, consequences of an attempt to imagine the good society. Neither will compromise his respective theory to account for those many aspects of real life that confound the well-intentioned high abstractions of each theory. In this sense, Nordahl leaves one with the intriguing impression that, despite all differences, Dworkin is the Rousseau of our day – a possibility problematic for Dworkin and Rousseau alike.

From a metaphysical viewpoint, the similarities run deeper than Nordahl concedes. He leaves unasked the question: What informs Rousseau’s and Dworkin’s respective particular priorities, if not their respective conceptions of the good? Rousseau claims a “universal justice emanating from reason alone” (SOCIAL CONTRACT, II.6). In LAW’S EMPIRE, Dworkin claims of justice a “more global or transcendental authority so that they [the principles of justice] can serve as the basis for criticizing other people’s practices of justice even, or especially, when these are radically different” (pp.424-25, n. 20). A shared Platonic commitment to a transcendental notion of justice, anyone?

Nan Ball, in “The Reemergence of Enlightenment Ideas in the 1994 French Bioethics Debate,” explores a controversial topical issue in terms of Rousseau and so demonstrates the most fruitful way to read pre-contemporary authors: towards clarifying pressing issues facing contemporary men and women. A metaphysical reader might object to Ball’s assertion that “Rousseau conceived of nature as more of an active, evolving force and thus rejected the [*374] concept of a universal and permanent set of natural laws that are immediately intuitively accessible to man” (p.352). Such a reader might point to the EMILE: “the eternal laws of nature and order do exist. For the wise man, they take the place of positive law. They are written in the depth of the human heart by conscience and reason” (IV.473). Perhaps Ball conflates two separate concepts in Rousseau: the state of nature and natural law. The state of nature is not the source of our standards of right and wrong but rather a pre-moral condition that has nothing to do with normativity. “Natural” laws are moral laws that we do not cognize in the state of nature. Ball rightly assumes that Rousseau is sensitive to context, however (p.355). But this sensitivity does not refute Rousseau’s supposedly eternal standards but rather implies that higher principles of justice and goodness are indeterminate and thus need specification in context.

Of interest to the postmetaphysical reader is Ball’s question: should “nature” provide normative guidance? She reads Rousseau as advising caution: the “reasoning underlying the 1994 bioethics legislation seems to run directly counter to Rousseau’s caution against uncritically confounding predominant social customs with the ‘natural’” (p.361). Consider two points here. First, Rousseau may indeed counsel caution, but nonetheless he invokes norms claiming eternal and universal validity and describes them as “natural.” In principle he would seem, then, to support the French legislators’ claim that natural norms exist and are valid and should be applied by the appropriate authorities. The argument that application need be contextually sensitive is a qualification that does not affect Ball’s account of the French case: that the legislators are properly guided by certain “natural norms.” Yet she thinks she can marshal Rousseau to oppose those very legislators.

Second, Ball provides abundant material to support the non-metaphysical claim that “nature” is a cultural category, a human artifact. Nature in the sense studied by natural science has no normative implications whatsoever; nature in this sense generates or contains or is capable of no meanings. Rather, only humans create meanings (some of which help us cope with life, for one thing), including ones that offer perspectives on social organization and integration. To call cultural acts “natural” is, then, a profound misunderstanding. Of course, human civilization is all about profound misunderstandings, so nothing surprising here. But if so, then Ball’s article demonstrates the enduring hold on the human imagination of an untenable proposition: nature understood as an extra-social, extra-human, other-worldly guide to social, human, this-worldly behavior.

Arthur Melzer, in “Rousseau’s Moral Realism: Replacing Natural Law with The General Will,” argues that Rousseau owes his greatest intellectual debts to Hobbes and Hobbesian positivism. As such, Melzer’s Rousseau rejects natural law or related conceptions of justice as a foundation for the state. Melzer joins with this interpretation a long line of Straussians (including Roger Masters, [*375] Marc Plattner, and Leo Strauss himself) who also read Rousseau as more Hobbesian than Platonic. Yet Melzer takes Rousseau one step further by proposing not only that Rousseau severs justice from the foundations of the state but that he also regards all such notions as nothing less than subversive.

What are the problems on this score? First, Rousseau’s own defense of the SOCIAL CONTRACT, his LETTERS WRITTEN FROM THE MOUNTAIN, specifies that the social contract must have “nothing contrary to the natural Laws” (MOUNTAIN, Letter VI). This would suggest not only the presence of natural laws in Rousseau’s work but their indispensability in grounding his state. Second, Melzer proposes that natural or moral laws as they follow from Rousseau’s account can only be irrelevant because they are unknowable to the vast majority of the people. This claim relies on two passages, one from the PREFACE TO NARCISSUS and another from the FIRST DISCOURSE. The passage Melzer cites appears irrefutable: there are but a few “sublime geniuses who know how to penetrate the veils in which the truth envelopes itself” (PREFACE TO NARCISSUS, p.102). Yet Melzer neglects the context of the passage. Rousseau is speaking specifically of the laws of natural philosophy – that is, science. Later in the FIRST DISCOURSE (p.28) he makes clear that these laws do not apply to moral knowledge: “Are not your principles engraved in all hearts, and is it not enough in order to learn your Laws to return into oneself and to listen to the voice of one’s conscience in the silence of the passions?” Finally, of this interpretation we might ask: if law and order are the sole ends of Rousseau’s politics, then why should he much prefer the social contract of the SOCIAL CONTRACT over that of the SECOND DISCOURSE? The society established in the latter is clearly orderly; it has laws, even ones to which citizens consent. Yet Rousseau calls it a “despotism” and legalized slavery. The metaphysical reader would suggest that only some external and objective standard of justice undergirding his broader theory can explain Rousseau’s preference and the distinctions it entails.

The postmetaphysical reader, on the other hand, will find interest in Melzer’s reading of the SOCIAL CONTRACT as a “hardheaded political work directed primarily against the dangers of moral doctrine” (p.232) and against natural law in particular, hence against “ideologues and moralists who . . . subvert the law through appeals to supposedly higher standards” (p.218). Is this not the amoralism of the raison d’état entailed by Hobbes’s doctrine of sovereignty?

2. Motivation to Obey Law

John Hope Mason, in “Forced to be Free,” discusses an “impossible task” of the Social Contract: “using the voluntarist terms of contractarian theory to generate the kind of obligation which derives from what is given” (p.73). He emphasizes socialization as an element to a possible solution to the “impossibility of reconciling voluntarist assumptions – legitimacy from individual consent – with the major insight of [Rousseau’s] social theory that what we are is to a large degree shaped [*376] by circumstances” (p.76). And yet socialization cannot provide a solution: “Once we have left the state of nature we are all socialized in one form or another and no modern political theory can adequately ignore that. Liberal writers, of course, do ignore it. They imagine that their educational schemes, as much as their economic arrangements or political structures, exert no harmful influence but merely develop natural abilities and maximize individual freedom. But their education is, in most instances, as manipulative and doctrinaire, as ideologically biased, as education in non-liberal societies” (p.78). Unless one imagines that nonliberal education is better able to generate a free society, a liberal education might seem the best possible. But Mason condemns it as, in fact, nonliberal. From his perspective it would seem, then, that all education, as a species of socialization, ultimately renders individuals incapable of the “voluntarist terms of . . . obligation.” In short: human societies cannot generate, indeed they preclude, the only type of socialized human being that might unite voluntarism with obligation. Mason argues that Rousseau wants people to obey the law, not because they have a sense of moral obligation based on an “innate principle of justice and virtue,” but rather because they would have a “feeling of dependence and belonging” stemming from the social contract and the social bonds fostered in community. And yet these are not mutually exclusive reasons to feel obligation. One can follow the laws of a political community both because of a sense of community and because its laws are thought to be just at the same time. If both were true, citizens would have all the more reason to obey the laws. Mason’s reading denies this because his notion of socialization precludes it.

A matter of continual debate is: just how democratic is Rousseau? The thrust of Ethan Putterman’s “Rousseau on Agenda-Setting and Majority Rule” is on target: Rousseau is largely democratic in legislative spirit. He places sovereignty in the people properly constructed and they are to ratify all legislative matters. This is already more than what interpreters such as Judith Shklar would concede (MEN AND CITIZENS, at 181). Putterman’s version of Rousseau nonetheless gives pause: “entrust[ing] a body other than the majority to initiate the laws while consistently maintaining that sovereignty resides in the majority” (p.127). Could one argue that Rousseau supports not the Guys in the White Hats (a politically active citizenry) but the Guys in the Black Hats (an out-of-touch, out-of-reach expertocracy)? Here, too, we observe Rousseau’s enduring relevance in our own time.

3. Rationality versus Emotional Affect in Law and Justice

According to Christopher Kelly, “Rousseau and the Case For (and Against) Censorship,” Rousseau proposes that the lawgiver creates popular, willing compliance with his regime (i.e., popular consent to just institutions) by creating shared, nonrational, perhaps affective feelings that lead the populace to identify with the lawgiver. Self-interest is not the only reason why people might freely comply with a regime. Religion and [*377] music offer ways of “reaching” people when reason does not. While one can imagine the lessons that might be conveyed by religion, it is hard to imagine the lessons conveyed by music. Even the lesson of a sense of order is largely absent of content; order can come on any number of terms.

Rousseau, in the EMILE, acknowledges that there are two distinct modes of thought. One is “reason,” typical of the “masculine” mindset; the other is more intuitive or feeling, more “feminine” in nature (on Rousseau’s sexual politics, compare Schwartz 1984). Rousseau suggests that, to think well, humans need both: the “feminine” provides the substance of first principles (written on everyone’s heart, but not equally accessible to all, as a matter of differential socialization); the “masculine” performs useful tasks with this substance. So perhaps music, religion, and language are all used to help connect with this intuitive knowledge, for those persons whose “masculine” side is insufficiently available. This account might connect more of the dots.

Kelly opens up additional perspectives. For Rousseau, an “attempt to do away with all risks of fanaticism by eliminating nonrational persuasion will leave no practical alternative to rule by force” (p.150). Is there no grave danger that “nonrational persuasion,” or “politics by popular imitation of the elite,” allows for some of the kinds of fanaticism that supported Stalin, Hitler, and Mao (solitary lawgivers all)? Further, is not Rousseau’s distinction between languages that supposedly are “closer to the heart” (or feelings) and languages purportedly “closer to the head” (or rationality) nonsensical? Do not all languages accomplish the same tasks, confront the same limits as language, and equally possess both emotive power and the capacity of formulate abstract propositions?

In “Narratives of Hierarchy: Loving v. Virginia and the Literary Imagination,” Martha Nussbaum shows how Rousseau’s EMILE illuminates human compassion’s distinct capacity to inform the realization of legal justice. First, in legal circumstances ranging from the civil (e.g., the proper constitutional meaning of legal equality) to the criminal, the EMILE offers arguments as to why understanding on the part of the social and political elite (such as judges) is a sine qua non of doing justice. Because any self-understanding is limited and fallible, justice involves taking into account self-understandings foreign to the elite adjudicators, including those of the defendant, the wrong-doer, the accused. Second, the EMILE argues for what modern liberals call “pluralism”: the notion that what we moderns share with each other is no longer religion, race, language, or history but only the capacity to understand that others can have preferences different from our own, preferences that others regard in the same way we regard our own. The Rousseau of this reading is a great modernist, not an anti-modernist.

And yet are there not intractable problems in using pitié as a means by which to get people to understand one another? In pitying one another, do we [*378] not set ourselves above others? Do we ever feel pity for those above us? Do we feel pity for those of our own status? Perhaps we do not really view these people as our equals but rather as the “unfortunate.” If so, we are unlikely to identify with them in the way Rousseau and Nussbaum might hope.

4. The Politics of the General Will

In “What is the General Will,” Gopal Sreenivasen answers: the “constrained deliberative decision of the community” (p.23). He suggests that John Rawls and Jürgen Habermas are engaged in furthering Rousseau’s project by multiplying the constraints necessary to produce an outcome most consonant with the common interest. What might Rawls and Habermas say to this assertion?

Also important is the issue of where the “truth” of “true selves” (and “true wants”) lies. Sreenivasen’s answer – “wants that the person has ratified through his own reasoning and that also correspond to his critical interests” (p.9) – conflates self-determination with “true” or “authentic.” Thus when Sreenivasen claims that “Habermas’s discussion is even more specifically related to Rousseau’s enterprise insofar as it is explicitly informed by attempts to develop a theory of critical interests” (p.35), one wonders where in Rousseau he finds this critical standpoint.

Sreenivasen also distinguishes between the “objective condition” (promoting the individual’s critical interests) (p.38) and the “subjective condition” (the individual accepts that this is so – i.e., he or she accepts that there is consent regardless of its content) (p.38). He believes that their combination is at the heart of the general will as the simultaneity, indeed identity, of obeying oneself and obeying the political community. He says he does not know how to do so, but nonetheless recommends Rousseau’s example. But isn’t this example just the problem: that it, too, fails to do the necessary work?

Sreenivasan offers two interpretations of the general will, one procedural and one substantive or “objective” (p.36). The procedural account is “one in which common critical interests are simply defined as those determined by means of a suitably specified procedure” (p.36). The objective one “holds that critical interests are what they are independently of whatever any individual or community thinks they are” (p.36). He leaves unanswered this large question, even as he writes, “I suspect that his stronger commitment is to the objective notion” (p.36). Would Rawls and Habermas be sympathetic?

Arthur Ripstein (“Universal and General Wills: Hegel and Rousseau”) identifies one very important goal shared by Hegel and Rousseau: to find a form of association that defends and protects the person and goods of each associate, by means of which each is united with all, obeys none but himself, and remains as free as before associating. They share a vision of political community in which the individual member is, as Hegel might say, with himself even as he is in community. This vision involves the philosophical and institutional question of what it is for someone to be judged by [*379] his or her own standards (p.43) and the supposition that it is illegitimate to coerce people solely for the sake of others. Against this common vision, the authors’ respective articulations and presuppositions differ. Ripstein treats these as differences-in-articulation of a common vision.

Ripstein also argues that Rousseau’s general will lacks content. Yet Rousseau never says that the general will can be filled by any particular content or that it is arbitrary. The general will must promote freedom, equality, and justice and must be aimed at the common good. This is admittedly indeterminate — but indeterminacy is not the same as arbitrariness. Something can be indeterminate and still have content. Two kinds of indeterminacy may be distinguished here: relative and radical. Radical indeterminacy finds no content. This cannot be Rousseau, since he specifically attaches the general will to certain substantive ideas. Relative indeterminacy implies that the values in question are true but admit of different applications in different situations, as circumstances demand. In this respect Hegel misreads Rousseau, mistaking relative indeterminacy for radical indeterminacy. Rousseau does imply the indeterminacy of his goals but he is not indifferent to content; the goal — good government — does not change even as the means do.

In “Rousseau on Proportional Majority Rule,” Paul Weirich estimates the general will even as he declines to define it. Can he nonetheless know what it is that he is estimating or does the general will remain a black box? Is he caught in a contradiction insofar as he characterizes the general will as being ontologically dependent on the outcome of an election while at the same time saying that the majority vote is justified by its correspondence to the general will? Perhaps Weirich does not mean to suggest that the general will is ontologically dependent on the majority will. We know Rousseau intends no such thing because he distinguishes clearly the general will from the will of all. If Weirich is instead suggesting that the majority (both in ideal and imperfect voting conditions) is likely to approximate this ideal, important questions remain. While the general will may exist as an idea, how, without reference to concrete terms, are we to know whether it has been approximated? How are we to know whether or not we are approaching the general will without some kind of notion of what the general will is?

Perhaps the general will exists partly as an idea, partly as a concrete will: an idea insofar as it must conform to the substantive idea of justice, and concrete insofar as it must be willed to be real and legitimate. If so, one might view skeptically Rousseau’s belief that once we have a sound conscience we can recognize whether the people’s will corresponds with what the general will should be. By what standard could we consensually agree on how to distinguish between a sound conscience and an unsound one?

One more thing. Weirich speculates that Rousseau might have borrowed his notion of l’utilité publique from Claude Helvétius (p.119). While Rousseau [*380] indisputably read DE L’ESPRIT, Weirich fails to acknowledge that he hated it passionately. A large part of his PROFESSION OF FAITH responds directly to the “evils” of its teachings. In both his LETTER TO D’ALEMBERT and his POLITICAL FRAGMENTS he rejects the notion that pleasure has anything to do with the good. The origin of l’utilité publique may be Montesquieu’s PERSIAN LETTERS (Letter 29) and is quite unconnected with the later utilitarianism of Helvétius and his English progeny.

5. Additional Sundry Issues and Topics

Christopher Kelly, in “‘To Persuade without Convincing’: The Language of Rousseau’s Legislator,” classifies Rousseau’s thoughts into subject matter (philosophy, letters, the arts). One might ask, however, if classification gets to the essence of Rousseau’s distinctions as to what should and what should not be censored. It seems unlikely that he would make categorical distinctions as to what should and should not be censored on the basis of what genre of learning the work might fall into. He may instead be concerned with the content of doctrines, asking, for example, if the work in question promotes or hinders the ideas of justice and the general will. If it hinders, censorship may be justified or even obligatory; if it promotes, censorship would seem unjustified. This reading is admittedly more Platonic than anything else, and finds support in the strong Platonic overtones of the LETTER TO D’ALEMBERT and the “Essay on Theatrical Imitation.”

Further, contra Kelly, the issue of the author’s social responsibility – specifically with regard to the question of self-censorship – is not marginal. Consider the recent uproar among Muslims over the Danish caricatures of Mohammed, or decades ago the fatwa against Salman Rushdie because of his SATANIC VERSES, but also: enduring questions of authorial responsibility in such areas as journalism, war-images, pornography, and so forth. Kelly might well seek insight on such matters from Rousseau.

Melissa Schwartzberg, in “Rousseau On Fundamental Law,” offers an “enabling model” of fundamental law, a characterization of Rousseau’s approach particularly effective in describing why it is that Rousseau’s sovereign seems to enjoy such wide discretion: “The sovereign, properly understood, is constitutively incapable of willing what is wrong; the fundamental law of utility is an enabling rule designed only to direct the general will to morality and justice” (p.181). This makes sense because the sovereign is the general will, and the general will must, by definition, be just. Of Schwartzberg’s thesis – that absolute sovereignty and fundamental law appear to be mutually exclusive yet are not, if fundamental law enables rather than constrains the absolute sovereign will – one might ask: is it possible that a particular kind of rule only enables and never constrains? The answer depends on a careful distinction between the “sovereign” and the empirical embodiment of that sovereign. The sovereign for Rousseau is the general will; it is not self-enacting but requires a people to will it: the “general [*381] will is always upright . . . but it does not follow from it that the people’s deliberations are always equally upright” (SOCIAL CONTRACT, II.3). Thus the sovereign enables yet at the same time constrains the people when they are not sovereign (namely, when they will something other than justice).

But if “enable” means “limitations on the sovereign are either constitutive of the sovereign, or strengthen its ability to enact its will” (p.176, citing Stephen Holmes approvingly), then “enable” does not limit but only facilitates. And is it not possible that at least some acts of enablement are also, simultaneously, limiting? For example, if a public policy of affirmative action enables underrepresented minorities to gain admission to universities and professional schools, or to receive competitively bid governmental contracts, does it not also limit the enabled in some ways? After all, to qualify, one must be a member of certain groups and such membership is “limiting” in the sense that, in this context, the individual is defined in one way (hence qualifies) and therefore not in any other (a black woman, for example, qualifies perhaps as black or female but never as “citizen,” “patriot,” “expert,” “brilliant” – and hence is “limited” here to being a “black” or a “woman” or both). Even a sovereign is limited by this or that understanding of sovereignty and even the absolute sovereign cannot define itself in certain ways. In short: the very notion of “absolute sovereignty” can only be metaphor; it can only mean a sovereign of greater power in distinction to one of lesser agency. But the concept is incoherent if interpreted as meaning an unlimited sovereign (absolute understood as unlimited).

In “Rousseau’s Theory of Natural Law as Conditional,” John Noone describes Rousseau’s approach to natural law as “natural in the sense that in a given set of circumstances man by a combination of simple reason and conscience can know what is right and wrong, just and unjust. However, its obligatory character is conditional” p.214). Of the conditional nature of natural law Noone asserts: “If the only rules which bind men are wholly of human origin, it is difficult to see either the relevance or justice of invoking God as some sort of cosmic umpire” (p.198); “Though conscience is innate its efficacy can be curtailed by socially induced passions and obscured by a socially generated pseudo-conscience” (p.201); “It is only within society that distinct ideas of justice and injustice arise” (p.204); and “If justice requires the strict enforcement of the law, then in the state of nature there could not have been any natural justice because there was no institution capable of enforcing natural law throughout the world” (p.205).


Noone goes a long way to explaining the variance of interpretations of Rousseau as regards the natural law. On the one hand, in the state of nature there is no natural law; in civil society, it is very much in place. (Melzer mistakes Rousseau’s characterization of the state of nature for his sentiments regarding natural law altogether.) On the other hand, the notion of a “conditional” natural law is a thoughtful concession to the complexity of reality and human [*382] experience. There is no binding natural law for persons either pre-rational or in a condition without order. And justice applies only once there is order.

So what are the merits of this volume? What do we learn about Rousseau as a legal theorist? Reading as an ensemble the essays collected here demonstrates the originality of Rousseau’s thought; that he has much to say on issues, both foundational and practical, of law and justice; that he says them in ways rich and ambiguous enough to generate widely divergent, sometimes even contradictory, readings. The essays of this volume provide legal scholars reason enough for re-visiting the man himself.

REFERENCES:
Dworkin, Ronald. 1986. LAW’S EMPIRE. Cambridge: Belknap.

Helvétius, Claude-Adrien. 1758. DE L’ESPRIT. Paris: Durand Librarie.

Montesquieu, Charles de Secondat. 1964 [1721]. PERSIAN LETTERS. Indianapolis : The Bobbs-Merrill Company, Inc.

Rousseau, Jean-Jacques. 1979 [1762]. EMILE, trans. Allan Bloom. New York: Basic Books.

Rousseau, Jean-Jacques. 1994. POLITICAL FRAGMENTS, ed. Christopher Kelly and Roger Masters. Hanover: University Press of New England.

Rousseau, Jean-Jacques. 1997 [1751]. DISCOURSE ON THE ARTS AND SCIENCES, in THE DISCOURSES AND OTHER EARLY POLITICAL WRITINGS, ed. Victor Gourevitch. Cambridge: Cambridge University Press.

Rousseau, Jean-Jacques. 1997 [1752-1753]. “Preface to Narcissus” in THE DISCOURSES AND OTHER EARLY POLITICAL WRITINGS, ed. Victor Gourevitch. Cambridge: Cambridge University Press.

Rousseau, Jean-Jacques. 1997 [1762]. THE SOCIAL CONTRACT, ed. Victor Gourevitch. Cambridge : Cambridge University Press.

Rousseau, Jean-Jacques. 1997 [1764]. “On Theatrical Imitation: An Essay Drawn from Plato’s Dialogues” in ESSAY ON THE ORIGIN OF LANGUAGES AND WRITINGS RELATED TO MUSIC, ed. John Scott. Hanover: University Press of New England.

Rousseau, Jean-Jacques. 2001 [1764]. LETTERS WRITTEN FROM THE MOUNTAIN, ed. Christopher Kelly and Eve Grace. Hanover: University Press of New England.

Rousseau, Jean-Jacques. 2004 [1758] LETTER TO D’ALEMBERT AND OTHER WRITINGS FOR THE THEATER, ed. and trans. Allan Bloom, Charles Butterworth, and Christopher Kelly. Hanover: University Press of New England.

Rushdie, Salman. 1988. THE SATANIC VERSES. New York: Viking. [*383]

Schwartz, Joel. 1984. THE SEXUAL POLITICS OF JEAN-JACQUES ROUSSEAU. Chicago: University of Chicago Press.

Shklar, Judith. 1969. MEN AND CITIZENS: A STUDY OF ROUSSEAU’S SOCIAL THEORY. London: Cambridge University Press.

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© Copyright 2006 by the authors, Benjamin Gregg and David Williams.

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AMERICAN JUVENILE JUSTICE

by Franklin E. Zimring. New York: Oxford University Press, 2005. 264pp. Paperback. $19.95. ISBN: 0195181174.

Reviewed by Lucy S. McGough, Paul M. Hebert Law Center, Louisiana State University Law School. Email: Lucy.McGough [at] law.lsu.edu

pp.369-371

Franklin E. Zimring, formerly at the University of Chicago and now the William G. Simon Professor of Law at the University of California at Berkeley, presents a powerful and persuasive voice in the study of juvenile justice issues. His persuasiveness stems from the rare concurrence of a mastery of empirically grounded investigations and a clear, elegant style of writing. AMERICAN JUVENILE JUSTICE is a joy to read, even though it presents a complex exploration of the constitutional, political, social, and adolescent developmental variables that ought to influence public policies governing the determination of appropriate punishment of delinquent adolescents. I have 30 years of experience with the juvenile justice system, and, as I read this book, often thought, “of course.” That reaction is due to Zimring’s inexorable logic rather than that his conclusions are commonplace. He has the wonderful ability to discuss issues so persuasively that they seem like truths who are old friends.

All of the chapters, except two discussing teen pregnancy and overrepresentation of minorities in American juvenile justice, have been published previously, but this volume unites the essays in a single, highly accessible paperback. Zimring begins with a discussion of the animating ideas that drove the creation of a separate juvenile court. The treatment model sprang from the notion that children who are ill-trained, or ill-supervised or otherwise unsocialized should be individually diagnosed and provided with appropriate rehabilitative services; the court was warranted to intervene in families’ lives to “effect a rescue.” Zimring calls this the “dependent legal theory of youth.” The competing “diversionary theory,” suggests that the juvenile court was created to provide a less harsh set of sanctions for delinquent children as an alternative to imprisonment by the criminal justice system. Zimring makes the astute point that only depending upon its purpose can the modern juvenile court be judged a success or failure. Now that’s obvious, isn’t it? Though it is voguish to call the court a failure, as Barry Feld (1997) and others have done, the diversionary purpose is not only is compatible with GAULT (1967) but continues to justify the court’s existence.

The logical starting point for planning any institution that seeks to influence adolescents’ behavior, discussion of the nature of adolescence precedes an examination of legal doctrines and policies. There are four salient characteristics of adolescence that collectively point to diminished responsibility in both moral and legal terms: immature cognitive abilities that enable an adult to comprehend the moral content of commands and apply them to social contexts; lack of self-control, [*370] especially the inability to curtail impulsive behavior by sorting the consequences of options; and the susceptibility to peer pressure. The fourth characteristic – the “well-known secret” of the juvenile justice system – is that “adolescents commit crimes, as they live their lives, in groups” (p.73). According to rather stable statistics, the percentage of juvenile defendants who act with a confederate ranges from 60% for assault to 90% for robbery. Group offending distinguishes juveniles from adults who are charged with committing similar crimes.

Group offending also plays havoc with many statistical accounts of the incidence of juvenile crime which, in turn, often trigger legislative “get tough” measures. Zimring cites a Congressional finding in 1974 that juveniles account for almost half the arrests for serious crimes in the United States. Similar statements are still heard 30 years later. Does such a statistic mean that juveniles are responsible for half of the serious crimes that are committed? Although many reports leave that lingering impression, a single crime causing the arrest of four juveniles is a single crime rather than four separate incidents. Similarly, the group mindedness of adolescent crime confounds statistics of juvenile court dispositions. Should an announcement that there is a formal adjudication of delinquency in only 17 of every 100 arrests be grounds to get rid of the juvenile court because of its ineffectiveness or unresponsiveness? No, again because in group offenses there are inevitably different roles, different levels of culpability among the perpetrators which can and should be taken into account by a court founded on the principle of gradations in transgression and individualized dispositions. Furthermore, effective juvenile courts divert many adolescents who are arrested to informal probation, after school supervision or other programs that avoid altogether the adversarial process of hearings and judicial pronouncements. If, as Zimring passionately argues, the purpose of juvenile court is to minimize the imposition of “permanent stigma and disfiguring punishments” of young offenders, then the court that formally processes the fewest arrested juveniles is doing the best job.

Among the many tantalizing observations in this slim book, two deserve special mention. First, minority overrepresentation is viewed by most policymakers as the single most intractable problem of juvenile courts. Minority overrepresentation is not an irrational fear or uninformed accusation; it is a fact: although African Americans compose only 15% of the adolescent population, 40% of those incarcerated in juvenile facilities are African American. The statistics for arrest, pretrial detention, and formal trial are similarly racially skewed. Zimring takes the position that the juvenile justice system is less biased than the adult criminal system in that the percentage of African Americans in prison is even higher, a hair away from 50%. Thus, by providing an alternative to the criminal justice system, the juvenile system actually benefits minorities who otherwise would face far more harsh sanctions. Furthermore, Zimring observes that as diversionary programs [*371] and deinstitutionalization initiatives benefit all juveniles, African American adolescents also benefit from the resulting reduction in harm. If a new program results in the informal adjustment of the delinquency cases of 100 white adolescents and 50 African American adolescents, none of whom otherwise would have been diverted, then African American adolescents as a group benefit, even if they are half as likely to be chosen for the program. If overall “fewer African American kids were locked up, a greater proportion of the kids locked up might have been African American. Was this progress? I would suggest the answer to that question is yes” (p.171). Zimring avoids further speculation about eradicating or even greatly reducing current racial disproportionalities. He certainly suggests, however, that current federal regulations simply calling for reports by states of juvenile racial data for all critical stages, from arrest to disposition, may express the limit of successful governmental intervention. Highlighting the fact that disparities in treatment are a matter of national concern may be the strongest response that governments can make, absent some showing of purposeful racial discrimination.

The second controversial topic Zimring considers is authorization of waivers or transfers by the juvenile court (or more likely today, by the prosecutor) for trial in a criminal court. Zimring notes that the transfer option protects the juvenile court institution from wholesale dismantling in times when the media run sensationalized series on violent youth crime or predator gangs, or a particularly grisly, premeditated homicide by a pathological adolescent outrages the public, who perceive the juvenile court as lacking sufficiently punitive sanctions. In this sense, the jurisdictional waiver option is a safety-valve that permits the juvenile court to do its valuable work on behalf of most of the community’s children. Certainly Zimring does favor criteria-based judicial transfers over unguided prosecutorial discretion, and both over legislative waivers, but transfers per se may not be as harmful and misguided as many critics have argued.

AMERICAN JUVENILE JUSTICE does everything a valuable book should do: It is informative, illuminating and provocative. It can be profitably read many times.

REFERENCE:
Feld, Barry C. 1997. “Youthfulness, Criminal Responsibility, and Sentencing Policy.” 88 JOURNAL OF CRIMINAL LAW & CRIMINOLOGY 68-136.

CASE REFERENCE:
In re GAULT, 387 U.S. 1 (1967).

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© Copyright 2006 by the author, Lucy S. McGough.

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REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES

by Roger C. Cramton and Paul D. Carrington (eds). Durham, NC: Carolina Academic Press, 2006. 516pp. Paper. $45.00. ISBN: 1-59460-213-1

Reviewed by Chris W. Bonneau, Department of Political Science, University of Pittsburgh. E-Mail: cwb7 [at] pitt.edu

pp.361-363

This is an impressive edited volume that considers two interesting and important questions. First, should Supreme Court Justices serve a life term, or should their term of office be modified to a single, fixed 18-year term of office? Second, can this change be accomplished by a statute, or is a constitutional amendment necessary? The contributors to this volume (the vast majority of whom are law professors) generally take one of three positions on these issues. Some (like Ward Farnsworth and Stephen Burbank) argue that the “cure” (a single fixed-term) might be worse than the “problem” (life tenure). A second group argues for a single, fixed-term of office but believes this can only be accomplished by a constitutional amendment. Scholars such as John Harrison, Steven Calabresi, and James Lindgren fall into this camp. Finally, a third group argues for a single, fixed-term of office for justices and claims that this can be achieved through a simple congressional statutory enactment. The editors, Roger Cramton and Paul Carrington, as well as others (such as Sanford Levinson) have essays arguing this position.

The book operates on two levels. First, it represents an attempt to summarize (though at 500+ pages, it is hardly a summary!) the current debate in the legal academy on the issue. Second, it is an attempt to convince readers that the current system (or lack thereof) of Supreme Court retention is problematic. On the first count, the book succeeds wonderfully; on the second, however, it fails to persuade. I will now say more about the reasons for these conclusions.

The most important attribute of the volume is that it is comprehensive. All sides of the debate are included. While the majority of the pieces favor reform, articles by Farnsworth, Burbank, Garrow, and Hellman call into question both the diagnosis of the “problem” and the solution. This book will be the definitive source for anyone interested in the debate over whether the term of office for Supreme Court justices should be changed. Moreover, the authors’ writing is quite accessible, devoid of a lot of legal jargon and “inside baseball” references. This is one of its greatest strengths: the book can be easily read and understood by anyone interested in the debate; the audience is not limited to academics. Additionally, while there is some redundancy, the multi-faceted nature of the debate is effectively captured, and each chapter provides a different look at the problem, even if some authors ultimately reach the same conclusion.

That being said, I think the book ultimately fails to convince the reader that there is indeed a problem with Supreme Court justices serving for life. [*362] Even supporters like Alan Morrison are forced to admit that, “We are, in short, in almost no better position than were the Framers when they drafted Article III and struggled to predict the consequences of their choices. To be sure, we have over two centuries of experience, but none of it is likely to shed light on this issue. This leave us with little choice but to make our best educated guess and admit that guessing is what we are doing” (p.206; see also Merrill, p.248; Farnsworth, p.268; and Hellman, p.312). Given that this is the case, it is incumbent upon the proponents of reform to demonstrate conclusively that a problem exists. Moreover, given the uncertain consequences of the proposed institutional reform, this problem must be a sufficiently compelling one in order to change the status quo, which, while not perfect, is also not fatally flawed. Although Calabresi and Lindgren show that the average tenure is increasing, it is a large leap to conclude simply that this is a problem. How are outcomes being affected? Is the quality of justice suffering? Systematic evidence answering these questions is sorely lacking (though several authors provide anecdotes).

This leads one to speculate whether this book is a solution in search of a problem. As Alan Morrison says, “The Court is not in crisis, and it will do quite nicely with the change or without it” (p.207). This is from someone who supports the proposed reform. David Garrow concurs: “[N]o public outcry over the length of justices’ service has arisen even in the wake of Chief Justice Rehnquist’s serious bout with thyroid cancer” (p.282). Given this, the reformers have a high hurdle to overcome to convince readers that change is necessary.

There is another significant shortcoming in the book. Part II (“Prolonged Tenure of Justices as Part of a Larger Problem”) reads like an ideological polemic against the Court. For example, Robert Nagel writes that limiting life tenure is a first step to curing some of the ills of the Court, but “if this first step is not possible, we will be faced with yet another sign of the extent to which the Court’s role, while highly destructive to important social and political values, is impervious to challenge” (p.136). Paul Carrington adds that the Framers “did not foresee that self-aggrandizement of John Marshall, much less that of William Howard Taft” (p.178). He continues, “Our federal courts, including the Supreme Court, might regain a sense of their own mortality and fallibility and appreciate the wisdom of deference to the law, to other branches and levels of government, and to the people they serve, a deference that sadly declined through much of the twentieth century” (p.179). All this leads David Garrow to conclude that “it thus becomes all to undeniably clear that the present initiative for Supreme Court term-limits is in its essence an ideologically-motivated ‘Trojan Horse’ masquerading as a nonpartisan modernization reform” (p.280). Indeed, Garrow claims that the authors of the fixed-term proposals hope that this reform “will produce decidedly different, more traditionalist, or in other words more politically conservative rulings than a Court composed of life-tenured Justices would issue” (p.280). I [*363] am not sure that Garrow’s analysis is on point for all of the supporters of this reform. However, the inclusion of Part II in this volume does seem to suggest that, at least for some of the proponents of ending life tenure, ideology is driving their support. This significantly undermines the case for a single, fixed term of office for Justices.

Finally, from the standpoint of a political scientist, I was disappointed to see much of the literature on judicial independence, public opinion, legitimacy, and so on, ignored by the authors of these essays. Two notable exceptions are the pieces by Thomas Merrill and Stephen Burbank. (For what it is worth, I think the essay by Burbank will be the one of most interest to political scientists.) To me, this illustrates the divide that exists between the legal academics and political scientists. Also, I am not sure how this book will be used in the classroom. Obviously, if the movement to change the term of office for Supreme Court Justices gains ground, then this book would probably be adopted in graduate seminars and upper-level undergraduate seminars. In the absence of that, though, this is likely to be a book for scholars and not students.

In sum, regardless of where one comes down on the issue of reforming the term of office for Supreme Court justices, this book is a must read for anyone interested in the politics of judicial reform, as well as those interested in the current debate among legal academics about the effects of life tenure on judges. Additionally, the comprehensive treatment of the issue makes this “one-stop shopping” for scholars and other interested parties. While I think that the book ultimately fails to persuade readers that reform is necessary, Thomas Merrill is correct in saying that “we need more rather than less discussion of the proper institutional design of the Court” (p.248). To that end, this volume serves a valuable purpose.

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© Copyright 2006 by the author, Chris W. Bonneau.

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MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS

by Anita Bernstein (ed). New York: New York University Press, 2006. 255pp. Cloth. $40 ISBN: 0814799299.

Reviewed by Elizabeth Ellen Gordon, Department of Political Science and International Affairs, Kennesaw State University. Email: egordon [at] kennesaw.edu.

pp.358-360

Demands for recognition of same-sex marriage have ignited some soul-searching in American society. The possibility of changing the definition of marriage from a union of one man and one woman to a union of two adults has engendered a broader discussion about the purpose of marriage and its relationship to government, law, and society. Sidling into the fray is Anita Bernstein’s book MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS, a collection of essays on official recognition of marriage that only indirectly deals with same-sex marriage. Instead, it considers why, how and even whether marriage in the United States should be dealt with through law and the intervention of the state. Half of the entries in the collection suggest that the institution of marriage as we know it should be abolished as a legal category, while the others argue that reform is a wiser course than abolition. The authors approach the subject from various disciplinary vantage points: law, history, anthropology, and political theory. As a launching point for classroom discussion, this volume would fit well in an upper-level course on law and society, and would challenge students to try to disentangle the threads of culture, religion, and law that make up the contemporary American concept of marriage.

Among those who advocate ending marriage as a privileged legal status are law professors Martha Albert Fineman and Linda C. McClain and founders of the Alternatives to Marriage Project, Dorian Solot and Marshall Miller. For Fineman, the justification for marriage as a legal category is to recognize, promote and protect care-giving relationships. Therefore, we should abolish the category of marriage and instead provide legal recognition and support for relationships of dependence through contract law. She argues that without the special category of spouses, connected individuals would relate to each other through tort and criminal law just as non-related persons do. For example, there would be no “domestic violence,” only unmodified “assault.” Building on Fineman’s arguments, Solot and Miller point out that many varieties of care-giving relationships already flourish and deserve equal treatment and respect under the law. McClain’s major theme is equality, both among different kinds of family groupings and also within families. While she disagrees with Fineman’s call for replacing marriage entirely with private contracts, she is uneasy with the rationales offered for governmental marriage promotion. Standard “marriage movement” arguments – that marriage promotes social health, civilizes men, and promotes the ideal environment for raising children – lead McClain to the [*359] conclusion that the government is not really promoting marriage per se, but traditional marriage (i.e., with traditional gender roles). As the vehicle for socializing the next generation of citizens, traditional marriage runs counter to what McClain sees as the path to a more egalitarian society.

The second half of the book features essays pointing out the pitfalls of abolishing legal marriage. Anthropologist Lawrence Rosen discusses the complex interconnections between marital arrangements and other aspects of culture. Removing the legal status of marriage would have a ripple effect, with consequences that are difficult to predict. Likewise, political scientist Mary Lyndon Shanley argues for civil unions regulated by the state in lieu of legally recognized marriage, but eschews the private contract model because marriage as it stands today serves social roles that go beyond the meaning for individuals involved in the relationship. Peggy Cooper Davis’ essay on marriage as the privilege of free people is probably the most provocative essay in the book. Drawing on America’s slaveholding past, Davis demonstrates how denial of the opportunity to live as recognized married couples was a vital element in the dehumanization of slaves. Their interdependence was not allowed to develop, their allegiances were not respected, and their families had no security or stability. Monogamous commitments were all but impossible in a situation where couples could be permanently split without warning and where (female) slaves’ sexuality was part of the “package” owned by masters. For former slaves, claiming the right to marry was part of claiming a social position, “a step in the direction of responsibility and honorable citizenship.” Considering such a history, Davis is wary of abolishing the legal recognition of marriage in a democratic society.

Taken as a whole, the book raises many thorny questions. A primary theme throughout this discussion is individual needs versus societal needs. Individuals, couples, and other affiliational groups may desire various marriage-like arrangements, which might or might not involve any of the following characteristics: monogamy, sexual intimacy, heterosexuality, childrearing, economic equality, permanence, and religious significance. When one considers the various combinations of these dimensions (e.g., why not a temporary polygamous child-rearing commune, or a faith-based asexual economically dependent couple of the same gender?), the possibilities for relationships may seem at turns liberating or dizzying.

American political culture features a strong current of libertarianism that leads some to argue that personal fulfillment could arise from many different kinds of intimate relationships which are nobody’s business but the members of these family-like affiliations. But marriage is not only a personal arrangement; it is also a social institution. One might argue that as long as marriage promotes socially desirable outcomes such as stable families, shared childrearing, and organized inheritance, why couldn’t monogamy, heterosexuality, or some other features of marriage as we generally envision it be optional? On the other hand, is legal [*360] equality among all private care-giving relationships practical or even possible in an ordered, interconnected society? Are there reasons beyond mere bigotry to prefer some family arrangements over others? A tension exists between the libertarian impulses underlying the diversity arguments and the welfare state support requirements of these arrangements. Marriage can be seen as a legally enforced and socially accepted private safety net, the basis of familial care-giving units. If it is proper for the state to provide social and material support for families when the private safety net fails, does society then not have an interest in promoting familial arrangements that are demonstrably likely to be functional and self-sustaining (without favoring a priori monogamous, heterosexual unions)? Perhaps only in an atomized society with no provision of social services would the state be truly impartial regarding the various kinds of unions it legally recognizes.

While none of the authors in this collection argue that marriage should be abolished as a religious or cultural institution, Bernstein observes in the Afterword that marriage abolitionists ignore what reformers know from experience: “when American law stops recognizing a particular status, that status goes into decline in day-to-day life, not just in legal form.” Empirically, even with legal recognition, it is hard to deny that marriage is already under stress. In the long run, neither law, nor culture, nor religion in isolation can sustain the American version of marriage in a healthy form. Marriage without law will collapse. Marriage without culture (and for some, religion) will lack meaning and value. Even as Rosen provides examples of exotic non-marriage arrangements in foreign cultures, the reader is reminded of how much our own cultural expectations and interpretations create the institution of marriage in the contemporary United States. Those cultural elements, McClain argues, constitute the baggage of gender inequality and must be substantially re-envisioned. On the other hand, Bernstein argues that the cultural meanings are what the civil unions currently available to same-sex couples in Vermont lack: “a connection to symbols and traditions derived from marriage in the past.” Bernstein goes on to say that the state sponsoring marriage feels different from the state merely sponsoring entitlements because “the force of marriage lies in the fact that it combines legal privileges and duties with an extralegal, socially understood set of conventions.” So perhaps it does come back in the end to the movement for same-sex marriage. Like the slaves in America’s past, a group of people excluded from the right to marry see it as more than an economic benefit or legal convenience, but also as “a badge and incident of democratic freedom,” as Davis describes it. The fact that a substantial portion of the gay and lesbian community is willing to fight so hard to achieve the legally and socially recognized status of marriage – and not be satisfied with civil unions as a second class alternative – may be the strongest evidence seen in years for the vitality and relevance of marriage in our polity.

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© Copyright 2006 by the author, Elizabeth Ellen Gordon.

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THE JUDICIAL PROCESS: REALISM, PRAGMATISM, PRACTICAL REASONING AND PRINCIPLES

by E.W. Thomas. New York: Cambridge University Press, 2005, 442pp. Hardback. $95.00/£55.00. ISBN: 0-521-85566-7.

Reviewed by Gilbert A. Bond, LL.M., M.A., tried both jury and non-jury cases cases during the practice of law, taught commercial law at Pace University, and served as an Assistant United States Attorney.

pp.353-357

THE JUDICIAL PROCESS: REALISM, PRAGMATISM, PRACTICAL REASONING AND PRINCIPLES is about the methodology of judicial decision-making as it now exists and how it should exist. At the heart of the book is a fierce attack against any theory or practice that smacks of the law being a closed system in which correct legal decisions can be deduced from predetermined legal rules by logical means alone, i.e. legal positivism.

E.W. Thomas, favoring an open and transparent system, takes no prisoners. He advances an integrated and clear methodology to be utilized in judicial decision-making. It is not applicable to constitutional issues and would require some “minimal modification” to be applicable to issues of statutory interpretation. Readers are led into the esoteric world of jurisprudence, aka the philosophy of law and the science of law.

THE JUDICIAL PROCESS is informative, thought-provoking and often insightful, albeit verbose. It is also timely given the intense political nature of current federal judicial confirmation proceedings.

Several leviathans block the path to the new methodology. They include the legal doctrines of stare decisis, rule of law, precedent, attitudes or practices known as formalism and fundamentalism, the philosophical doctrine of legal positivism, and the quest for certainty in the law. These leviathans make the law a closed system and limit a judge’s choices, discretion, and ability to be creative. Judge Thomas knocks them out of the way one by one, together with “natural law” for good measure.

He advances an alternative concept of the law. It is a fluid and often political process. The law is what judges ultimately decide at any point in time. This process permits the rules to be continued, modified, or reversed. It, together with realism and pragmatism, constitutes the underpinning of the new methodology.

Realism means accepting that there is no transcendental, impersonal law to be discovered or declared. Pragmatism is the avoidance of absolute rules or principles. Rules must be constantly reevaluated pursuant to the principles of justice and relevancy. Laws must meet the needs of the commercial community to be relevant. The leitmotiv of the book is justice and relevance.

The reader should keep the following in mind: Thomas is a practicing judge in New Zealand, a country with a fairly homogeneous population of about four [*354] million, averaging thirty-three people per square mile; the service industries account for most of New Zealand’s employment and gross domestic product. The new methodology is recommended for all common law countries and both trial and appellate judges. The United States has fifty-one separate political jurisdictions. The reader should ask what impact, if any, this new methodology would have on the substantive law.

This book could have been entitled “Power to the Judges.” The new methodology aims to free judges from the tethers of precedents and stare decisis, or legal positivism. Judges must abandon their rule-based mentality and assume a more creative role in developing the law. Precedents and rules have their place – behind principles. Judges should shun particular rules and cases and seek out the general principle underlying those rules or cases. They then work from the general principle to the particular case in hand. When applied to a particular case “a recognized principle can provide a persuasive basis for a decision” (p.343).

Once the issue in a case has been clarified, the judge may begin the reasoning process. The judge must start with a “premise.” It may be a rule, a principle such as justice, a standard, or a community value. The initial premise must be rejected if it would lead to an injustice in the particular case or perpetuate a law that is contrary to contemporary community requirements.

The premise is subject to revision as the facts develop. The judge must balance interests, values, policies one against others guided by “the lodestars of justice and relevance.” Justice is not an abstract concept when applied to a concrete factual situation—particularly for judges. “Justice is incorrigibly context-specific” (p.370).

According to Judge Thomas, current methodology and the philosophical contention that the law is impersonal limits the judicial function to one of interpretation and further limits the judge’s ability to create new legal doctrines. “The notion that there is an impersonal law crumbles once it is accepted that there is no law hovering in the heavens waiting to be declared . . . judges constantly make and remake laws” (p.184). The new methodology would rehabilitate justice and relevancy as primary values permitting greater flexibility and creativity.

The law, he argues, is much more than a system of legal rules. Principles, values and policies should play a part in judicial decision making. In a “sufficiently homogenous society certain values develop automatically . . . and it is assumed that those values will be reflected in the law . . .” (p.282). The judge must translate these values into legal principles, the foundation of legal reasoning.

Thomas uncovers the precept of “non-exploitation” that underlies the entire spectrum of the common law. The law absolutely abhors exploitation. It will not permit one person to use his or her superior strength, power or dominance unfairly to take advantage of another. This precept is so entrenched in the [*355] common law that it is a mandate to judges.

Some precedents will reflect the precept and can be given effect under current methodology. Other precedents will not reflect the precept. The “progressive or creative judge” (p.363) may then use the precept as a guide as to how the law should be “developed.”

Though briefly hinted at earlier, it is not until the final three chapters that the author acknowledges that judicial methodology is “critically important in determining the substantive decisions” (p.xix) of judges. He notes that substantive law, along with the universal suffrage, a propertied middle class and the welfare state, permits the flourishing of capitalism by ameliorating its harsh and unconscionable excesses.

Contrary to Judge Thomas, I view American law as an open system. Traditional legal rules have been changing dramatically in response to changing conditions and policies since the 1930s. Our courts seldom look to precedents that pre-date the 1920s. American courts now cite foreign law in their decisions, and state judges often cite the law of a sister state. The law is so open that critics complain of “judicial activism.” Alexis de Tocqueville observed in 1840 that there is “almost no political question in the United States that does not sooner or later turn into a judicial question.”

Whether we view the law as an open or closed system is irrelevant because there is little that an individual judge could do under the new methodology that cannot be done today. Principles, for example, are now a part of the judicial decision-making mix. As long ago as 1889, in the case of RIGGS v. PALMER, New York’s highest court enunciated the principle that no person should profit from his own wrongdoing. This principle took precedence over the express language of the New York Statute of Wills that would have given a legacy to Palmer, a beneficiary under the will of his grandfather whom he, Palmer, murdered.

A precedent is a prior adjudged case. It may be distinguished from the case at hand, or overruled due to changed circumstances. Exceptions may be carved out of the precedent. Then too, the rule of the precedent may be so ambiguous as to permit the judicial creativity sought by Thomas.

The emphasis of the new methodology on constant reevaluation of the issues, principles, rules, and precedents may force American judges to become more intellectually engaged as the case proceeds rather than sitting back passively and choosing between column A and column B, as posited by the opposing attorneys. This could be a good thing.

This new methodology could change an open system into, at best, an open-ended system whose many parts act independently. The sources and direction of the substantive law would dramatically and exponentially increase and change. The ranking given to the protean term “justice” in the judicial decision-making process guarantees conflicting and ever-changing results. [*356] Aristotle, in POLITICS, observed that it is better for a state to have inferior laws for a long time than laws that constantly change even if they are good laws. (Remember the author encourages all judges to take charge, be creative and make law.)

At worst, the new methodology would replace a system with a disordered coterie of power hungry trial and appellate court judges determined to make law and history or utopia. “Of course, the administration of the law and legal process will vary at the hands of individual judges” (p.394). Thomas, however, expects the precept of non-exploitation to restrict “the scope for judicial diversion or distortion.” (p.394). Many would call this wishful thinking.

This methodology may change the public’s image of and respect for the judiciary and the law. The blindfolded Lady of Justice with the balanced scales in one hand denotes the law as objective, dispassionate, detached, logical, and as treating rich and poor alike; the public understands this as the meaning of “impersonal” law. But Thomas uses ‘impersonal’ to mean transcendental or metaphysical in order to trigger his contention that the law is what judges say it is.

Unfortunately, the new methodology shouts that there is no impersonal law and also says that the judicial function includes a political element. These contentions, together with frequent and dramatic changes in the substantive law occasioned by the new methodology, may cause the public to view the judiciary as it views politicians and legislators – with great cynicism. The public’s understanding of the meaning of impersonal may be but a goal, but one that is necessary to the smooth functioning of the judicial system.

Practically every society with an established system for the peaceful settlement of disputes projects the law as impersonal and majestic. These intangibles are symbolized in our society by judges’ wearing of black robes. In much of Euro