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.

© 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.

© 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).

© 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.

© 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).

© 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.

© 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.

© 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 Europe the symbols are robes and wigs. In much of pre-colonial Africa, the symbols were masks.
Lawyers, legislators and business, especially big business, would in all probability oppose the new methodology. The doing away with the quest for certainty in the law combined with the reduction in value accorded precedents would render lawyers largely impotent when it comes to advising clients of their chances in court.

The legislative branches of our government will brook but so much encroachment into their territory. I doubt that the U.S. Senate Judiciary Committee would approve any judicial nominee espousing subject methodology.

The uncertainties that this methodology could produce in the substantive law would surely give domestic and foreign business interests great concern. Business prefers certainty in the law – especially when risking millions or billions of dollars in long term contractual commitments.

Others will oppose on the ground that the solutions are naïve. Thomas [*357] recommends the elimination of legal fictions. Would he eliminate the legal fiction of treating a corporation as a person? The worldwide outcry would be deafening.

As Judge Thomas is a fine critic, THE JUDICIAL PROCESS should be of value to students and scholars of philosophy and the social sciences and to others interested in the distinctions between “is” and “ought to be.” The really serious scholar may wish to also read THE CONCEPT OF LAW by H. L. A. Hart. Professor Hart is one of Judge Thomas’ targets. One may also wish to read some of Ronald Dworkin’s works (cited in the book) as he is mentioned more often (both critically and approvingly) than anyone else except Justice Cardozo.

REFERENCES:
Hart, H.L.A. 1961. THE CONCEPT OF LAW. Oxford: Oxford University Press.

CASE REFERENCE:
RIGGS v. PALMER 22 N.E. 188 (1889).

© Copyright 2006 by the author, Gilbert A. Bond.

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DEBT’S DOMINION: A HISTORY OF BANKRUPTCY LAW IN AMERICA

by David A. Skeel, Jr. Princeton: Princeton University Press, 2001 (2nd Printing and Paperback edition, 2004). 296pp. Cloth. $67.50/£43.95. ISBN: 0-691-08810-1. Paper. $19.95/£12.95. ISBN: 0-691-11637-7.

Reviewed by Thomas G.W. Telfer, Faculty of Law, University of Western Ontario. Email: ttelfer [at] uwo.ca

pp.349-352

DEBT’S DOMINION demonstrates that American bankruptcy law has long been a “legislative battleground” (p.23). David Skeel stakes out a claim for a book that is a “complete account of the political factors that produced modern American bankruptcy law over the course of the last century” (p.2). In contrast to other historical studies (Mann 2002; Balleisen 2001; Lee Thompson 2004), all of which focus on periods of time associated with one of the earlier short-lived Bankruptcy Acts of 1800, 1841 and 1867, Skeel’s work covers the political economy of bankruptcy law from its birth (largely from the final decades of the nineteenth century) to recent times.

Skeel’s work encompasses late nineteenth century reforms (both legislative and judicial), the Depression and New Deal reforms, as well as the Bankruptcy Code of 1978. The book ventures beyond 1978, and provides an overview of recent scholarship that debates the future direction of corporate and consumer bankruptcy law. Indeed the book, although published before the enactment of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act, provides the background for the most recent reforms. Not since Charles Warren’s (1935) depression era book has an author sought to explain the evolution of bankruptcy law over such a broad period of time.

Skeel adopts a multidisciplinary approach and principally relies upon the insights of public choice theory. In particular, he makes use of interest group theory to explain legislative change. His approach takes into account the role of ideology and acknowledges that particular individuals had a direct hand in shaping reforms. The “political determinants of U.S. bankruptcy law,” according to Skeel, are “creditor groups, prodebtor interests and bankruptcy professionals” (p.16). Bankruptcy law reflected “a compromise between organized creditor groups and the countervailing pressures of populism and other prodebtor movements” (p.16). Within this compromise lawyers and judges, sought to expand the scope of bankruptcy law and “their own prominence” (p.16).

Nineteenth century bankruptcy law has always presented a puzzle for historians. Congress passed three bankruptcy laws in 1800, 1841 and 1867, and repealed each of them shortly after enactment. Readers more interested in a detailed coverage of these earlier nineteenth century Acts will have to look to other historical works. However, Skeel provides a general theory for the instability of the earlier short-lived [*350] bankruptcy statutes. Borrowing from social choice theory, Skeel finds legislative cycling in relation to bankruptcy reform. He argues that Members of Congress held inconsistent and what he calls “cyclical” preferences in relation to bankruptcy reform. The “multiplicity of views,” according to Skeel, “contributed to Congress’s inability to reach a stable outcome on federal bankruptcy legislation throughout the nineteenth century” (p.30).

To explain the success of the 1898 Act, which ended legislative cycling and established a permanent Act, Skeel turns to the rise of organized local and national commercial trade groups as “the driving force behind the 1898 act” (p.36). Merchants who traded across state lines complained that debtors often favoured local creditors, such as family members, rather than distant creditors. Without a bankruptcy law, merchants engaging in interstate commerce were at risk of being paid last or not at all (p.36). A national bankruptcy law that enabled a trustee to set aside payments to local or family creditors was vital to any merchant who traded at a distance.

The growing importance of national interest groups might also be understood in the broader context of Peter Coleman’s (1974) earlier work on the necessity of a national bankruptcy law at the end of the nineteenth century. According to Coleman, debtor-creditor relations became “commercialized, depersonalized, and channeled through the corporate, legalistic and institutionalized structure of commercial finance.” These changes to debtor-creditor relations made a bankruptcy regime “imperative” (1974, at 248).

Although national commercial interest groups had a significant influence on the 1898 Act, Skeel emphasizes that prodebtor forces had a “crucial restraining effect” (p.38) on the creditors’ proposals for bankruptcy reform in 1898. The Act was sympathetic to both debtor and creditor interests, but perhaps more importantly it established an adversarial judicial process rather than an expensive administrative procedure. This adversarial process “created an enormous demand for a bankruptcy bar, and . . . lawyers came out of the woodwork to fill the need” (p.43).

While a general bankruptcy bar began to appear with the passage of the 1898 Act, Skeel also traces the emergence of a separate and elite Wall Street reorganization bar whose growth coincided with the development of the court-based equity receivership. Initially used to reorganize insolvent railroads, the equity receivership became a broader reorganization tool for other firms. Wall Street lawyers and bankers “were the guiding influences on the receivership process, and its most obvious beneficiaries” (p.63).

The two bars suffered different fates during the Depression and New Deal era. The general bankruptcy bar surfaced from the 1930s “unscathed” (p.73) whereas the New Deal bankruptcy legislation “decimated” (p.101) the elite bar. Relying upon interest group theory, Skeel demonstrates how the general bankruptcy bar was able to resist [*351] Depression era proposals that would have shifted bankruptcy law to an administrative model. However, the author acknowledges that interest group theory does not fully explain all outcomes. The role of individuals “often play a crucial role” (p.117), and in the case of corporate reorganizations, William Douglas, chair of the SEC, played a prominent role. Skeel suggests that Douglas and the New Deal reformers “set out to tame, and in effect to destroy, the traditional Wall Street reorganization practice” (p.102). The new Chapter X, enacted in 1938, replaced private negotiation involving Wall Street lawyers and bankers in favour of governmental oversight.

The 1978 Bankruptcy Code, however, repudiated the New Deal vision of corporate reorganization. In contrast to the former Chapter X, the new Chapter 11 left management in control during reorganization. The story of this dramatic shift in corporate reorganization law in 1978 cannot simply be explained by the influence of the bar. Skeel finds the seeds of the destruction of the New Deal legislation in the complete victory claimed by the SEC in the 1930s. The story, which Skeel claims “has not previously been told” (p.161), takes into account the fact that the New Deal reforms had destroyed the elite Wall Street reorganization practice. This left the SEC with many interest group enemies but no allies. The SEC found itself aligned against bankruptcy lawyers, judges and even large creditors.

Skeel’s three eras of bankruptcy reform might well be followed now by a “new era” which embraces the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act (Tabb 2006, at 28). Skeel’s Chapter 7 anticipates and perhaps foreshadows the ultimate success of this legislation. Relying upon the insights of institutional law and economics, Skeel argues that the consumer credit industry had a large incentive to seek the tightening of the bankruptcy discharge for consumer debtors. With larger and larger numbers of debtors filing for bankruptcy, the potential benefits to creditors of altering the “rules of the game” (p.202) had increased dramatically. Thus one should not be surprised at the victory of the creditor lobby in this latest battle over bankruptcy reform (Tabb 2006, at 69).

During the most recent consumer bankruptcy reform debates, creditors relied upon the moral argument that “debtors have a responsibility to make good on their obligations.” Skeel claims that this line of argument is not new and “appeared in one form or another in every bankruptcy debate” (p.191). If commercial morality played a role in the nineteenth century to what extent did it play a role in the repeal of the earlier nineteenth century bankruptcy statutes? More importantly, how did commercial morality in the nineteenth century differ from what creditors advocated in the twentieth and twenty-first centuries?

A similar question may be posed in relation to Skeel’s political determinants of bankruptcy law. Skeel concludes that the forces that shaped nineteenth century law – creditors, populist prodebtor ideology and bankruptcy professionals – are still “a handy and reliable guide to [*352] the wilds of U.S. bankruptcy law” (p.240). Although these determinants provide an overarching theme, the nature of debtor-creditor relations in the nineteenth century was clearly different than that during the era of mass-market debt of today.

Despite these queries, David Skeel’s work provides us with a valuable one-volume overview of the progression of American consumer and corporate bankruptcy law over the last century. Not only does it trace the evolution of the law during key periods in broad terms, but it also examines in great detail some of the important moments in the legislative history of American bankruptcy law.

REFERENCES:
Balleisen, Edward J. 2001. NAVIGATING FAILURE: BANKRUPTCY AND COMMERCIAL SOCIETY IN ANTEBELLUM AMERICA. Chapel Hill, N.C.: University of North Carolina Press.

Coleman, Peter J. 1974. DEBTORS AND CREDITORS IN AMERICA: INSOLVENCY, IMPRISONMENT FOR DEBT, AND BANKRUPTCY, 1607-1900. Madison: State Historical Society of Wisconsin.

Lee Thompson, Elizabeth. 2004. THE RECONSTRUCTION OF SOUTHERN DEBTORS: BANKRUPTCY AFTER THE CIVIL WAR. Athens, Georgia: University of Georgia Press.

Mann, Bruce H. 2002. REPUBLIC OF DEBTORS: BANKRUPTCY IN THE AGE OF AMERICAN INDEPENDENCE. Cambridge, Mass.: Harvard University Press.

Tabb, Charles J. 2006. “Consumer Bankruptcy After the Fall: United States Law Under S. 256.” 43 CANADIAN BUSINESS LAW JOURNAL 28-75.

Warren, Charles. 1935. BANKRUPTCY IN UNITED STATES HISTORY. Cambridge, Mass.: Harvard University Press.

© Copyright 2006 by the author, Thomas G.W. Telfer.

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BORROWING CONSTITUTIONAL DESIGNS: CONSTITUTIONAL LAW IN WEIMAR GERMANY AND THE FRENCH FIFTH REPUBLIC

by Cindy Skach. Princeton: Princeton University Press, 2005. 192pp. Cloth. $29.95/£18.95. ISBN: 0-691-12345-4.

Reviewed by Amalia D. Kessler, Stanford Law School. Email: AKessler [at] law.stanford.edu

pp.344-348

Cindy Skach’s BORROWING CONSTITUTIONAL DESIGNS: CONSTITUTIONAL LAW IN WEIMAR GERMANY AND THE FRENCH FIFTH REPUBLIC is a well-argued and important book, which is likely to help set the terms of debate concerning constitutional design for years to come. Examining a form of government that a growing number of countries around the world have borrowed from the French Fifth Republic—namely, semi-presidentialism— Skach inquires into its capacity to promote stable democratic regimes and concludes that there is reason for concern.

In contrast to other scholars, who have claimed either that there is no single type of semi-presidentialism, or that semi-presidentialism is best understood as a form of government that alternates between presidential and parliamentary phases, Skach asserts that semi-presidentialism does indeed constitute a single type—and one that is clearly distinct from the more familiar presidential and parliamentary models. In her view, semi-presidential regimes are all characterized by two features: (1) the head of state is a president chosen for a fixed term through popular election; and (2) the head of government is a prime minister responsible to the legislature. Within this single type of government, however, she identifies three distinct sub-types: (1) consolidated majority government (in which the prime minister has a legislative majority, and the president is from this majority); (2) divided majority government (in which the prime minister has a legislative majority, but the president is from a party in opposition); and (3) divided minority government (in which neither the prime minister nor the president has a legislative majority).

Semi-presidential regimes of all three sub-types are potentially unstable, Skach suggests, because they allow for two executives (a president and a prime minister). Because the precise division of powers between the two executives tends to be unclear, and because the president, unlike the prime minister, is not directly accountable to the legislature, the president has the incentive to act independently. Thus, to the extent that the constitution grants the president emergency powers to be exercised in moments of national crisis, there is significant risk that the president will be tempted to use these to govern independently of the legislature—possibly resulting in constitutional dictatorship.

While semi-presidentialism as a type is generally susceptible to the risk of constitutional dictatorship, Skach argues [*345] that not all subtypes are equally at risk. There is, instead, a spectrum of susceptibility. Consolidated majority governments are the least susceptible to the serious institutional conflicts that might foster severe popular dissatisfaction and thus dictatorship, while divided minority governments are the most susceptible. Institutional conflicts are minimized in a consolidated majority government because the existence of a legislative majority promotes stable governments (thus permitting the government time to address crises) and because a president and a prime minister who are members of the same party or coalition are more likely to cooperate. The risk of institutional conflict is greater in a divided majority government because the president is from an opposition party and thus less likely to work cooperatively with the prime minister. According to Skach, a divided minority government is the most susceptible to institutional conflict, because without a legislative majority, governments are unstable, and the president, faced with legislative immobility, has the maximal incentive to intervene by invoking his emergency powers.

Skach proposes three factors that are likely to determine whether a semi-presidential government takes the form of a consolidated majority or, instead, of either of the two more problematic subtypes. These factors are: (1) whether the party system has been institutionalized; (2) the nature of the electoral system; and (3) whether the president is a “party man.” To the extent that the party system is institutionalized—such that citizens view the system as legitimate, party organization is stable, and patterns of party competition are regularized—the kinds of information needed to bargain and build coalitions is more readily available, and thus legislative majorities are more likely to arise. As concerns the electoral system, Skach suggests that there is a range of factors that contribute to the likelihood of legislative majorities, including the relative timing of presidential and legislative elections and, most importantly, voting rules that are majoritarian, rather than based on proportional representation. Finally, she asserts that a president who is supported by a party, and in turn, supports that party (and the party system generally), is more likely to engage in the kinds of cooperative behavior that promote the building of non-conflictual legislative majorities.

After setting forth her hypothesis, Skach tests it by undertaking two case studies of semi-presidential government: the Weimar Republic (1919-1933) and the French Fifth Republic (from its formation in 1958 through 2002). As concerns the Weimar Republic, she rejects the view of many scholars that the only reason that it survived as long as it did was that it was semi-presidential, rather than purely parliamentary. According to Skach, it was precisely semi-presidentialism that led (or at least contributed greatly) to its downfall. For nearly half of its relatively brief existence, the Weimar Republic had divided minority governments, and for another quarter, divided majority governments. That this was so, she suggests, followed from the fact that (as revealed by a variety of [*346] indicia) the party system was poorly institutionalized, the electoral system was an almost pure form of proportional representation, and the president from 1925 onward (Hindenburg) prided himself on being above (and indeed against) the party system. Thus, the final years of the Weimar Republic were characterized by the increasing instability of its minority governments and great legislative immobility. This, in turn, she argues, encouraged Hindenburg (and his increasingly technocratic cabinet) to step in and act where the Reichstag could not—leading ultimately to the rise of the Nazis and the collapse of the Republic.

As for the French Fifth Republic, Skach asserts that semi-presidentialism has resulted in a much greater strain on institutional stability than is usually acknowledged. Until 1962, France experienced divided minority government, during which there was extensive conflict between President de Gaulle (who then viewed himself as being above the party system) and the prime minister, resulting in significant legislative immobility. This legislative immobility, she suggests, was broken only when, in 1961, during the peak of the Algerian crisis, de Gaulle (illegitimately) opted to use his emergency powers for five months—well beyond the brief four-day period of army insurrection. Thus, Skach claims, it was far from certain in these early years that the Republic would survive. A number of factors, however, thereafter combined to lead to the election of a consolidated majority government in 1962, and to ensure that the Republic would continue to have such governments for most of its existence (and especially during its key formative years). As a result of changing demographic patterns, among other factors, the party system became increasingly institutionalized over the course of the 1960s, and de Gaulle came to support it. In addition, the Fifth Republic, unlike the Weimar Republic, opted for majoritarian electoral formulas. The end result, Skach concludes, was greater stability in government and a decline in conflict, both of which led to a growing faith in the system’s longevity. Significantly, however, she observes, France has experienced a number of divided majority governments since the 1980s, leading to a 2002 revision of the Constitution aimed at promoting consolidated majorities. This, in turn, suggests that even in France, semi-presidentialism is not without its problems.

Based on these findings, Skach persuasively concludes that semi-presidentialism—while very popular in many newly democratizing countries (including Russia and Ukraine)—may be a poor choice. Many of these countries do not have institutionalized party systems, presidential candidates who identify themselves as “party men,” and electoral rules that promote the formation of majorities. Thus, she argues, they are more likely to follow the path of Weimar than that of the Fifth Republic. For those countries that nonetheless adopt a semi-presidential system, she proposes that their constitutional law be structured so as to increase the chances that consolidated majority governments will be formed. [*347] Accordingly, rules prohibiting presidents from being party members should be rejected outright and, to the extent possible, majoritarian electoral formulas should be chosen.

As this brief overview suggests, Skach has produced a compelling and important book. Combining theoretical discussion with sustained historical analysis, BORROWING CONSTITUTIONAL DESIGNS is a well-written and -executed example of the “new institutionalism” that seems to have swept across the social sciences in recent years. And given the extent to which semi-presidentialism has lately been embraced by democratizing countries, her book has very significant real-world implications. Moreover, even aside from Skach’s specific prescriptions regarding semi-presidentialism, the methodology that she has so successfully deployed is in itself quite promising. It suggests how important it is that those who provide advice on constitutional design pay attention to the lessons of history—to the ways that the effects of a particular constitutional framework ultimately hinge on the institutional context (and underlying socio-economic and cultural conditions) in which that framework is deployed.

That said, it is striking that party-system institutionalization—the factor in her model that is perhaps the most contingent on particularities of historical context (and thus the least susceptible to scientific measurement and design)—seems to play such a driving role. According to Skach, the likelihood of consolidated majority government, and thus of avoiding the pitfalls of semi-presidentialism, hinges greatly on such institutionalization—on the extent, in other words, to which the party system has attained a degree of stability and legitimacy. But is it not the case that all types of democratic regime require some minimal level of party-system institutionalization (Mainwaring & Scully, 1995)? And if this is so, then to what extent does Skach’s narrative about Weimar and the Fifth Republic really hinge on the unique features of semi-presidentialism, as opposed to the more universal problem of stabilizing and legitimating the party system?

Moreover, the question of how party systems become institutionalized is one that, as Skach herself admirably recognizes, hinges on “a multitude of socioeconomic and cultural conditions” (p.127). What then is to be done? To the extent that we take seriously the notion that the effects of an institution are ultimately determined by the social and cultural soil in which it is planted, then there is, in my view, no escaping in-depth, historical analysis. Skach does undertake some of this historical work. To give but one example, she emphasizes the important, contingent role that industrialization during the 1950s and 1960s played in mitigating cleavages within the French party system. Skach’s primary focus, however, is on such metrics of party-system institutionalization as electoral volatility and opinion polls. And, while these metrics have the virtues of being easily measured and quantified, they convey a relatively thin portrait of what is, in fact, a far more complex reality. This is, no doubt, however, partly a matter of taste, and in the end, little more [*348] than a quibble with what is an excellent piece of work—one that greatly deserves (and will no doubt enjoy) a wide readership among political scientists, legal scholars, and historians alike.

REFERENCES:
Mainwaring, Scott, and Timothy R. Scully. 1995. BUILDING DEMOCRATIC INSTITUTIONS: PARTY SYSTEMS IN LATIN AMERICA. Stanford, CA: Stanford University Press.

© Copyright 2006 by the author, Amalia D. Kessler.

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BREACH OF TRUST: HOW THE WARREN COMMISSION FAILED THE NATION AND WHY

by Gerald D. McKnight. Lawrence, Kansas: University Press of Kansas, 2005. 512pp. Cloth. $29.95. ISBN: 0-7006-1390-0.

Reviewed by David A. Yalof, Department of Political Science, The University of Connecticut. E-mail: david.yalof [at] uconn.edu.

pp.341-343

More than four decades after the assassination of President John F. Kennedy, books on the subject are published every year, and new facts continue to be revealed. Just when it seems like there’s nothing left to learn, some work of scholarship defies the odds. In 1995 Gerald Posner’s CASE CLOSED provided the most persuasive argument yet in favor of the lone gunman theory. Clearly there is a large readership for books such as these, and publishers know it. Nonetheless, from the standpoint of producing important scholarship, the burden remains squarely on authors who write in this heavily mined area to justify why yet another book on the subject is necessary.

In BREACH OF TRUST: HOW THE WARREN COMMISSION FAILED THE NATION AND WHY, Gerald McKnight justifies finding a place for his new book within the vast Kennedy assassination literature. First, his focus is narrower than that of most previous studies: he sets his targets only on the Warren Commission, its inner workings, and its relationship with the branches of government. By some informed opinions, the last comprehensive book to focus on the Warren Commission was Harold Weisberg’s WHITEWASH, which was published in 1965. Second, by never straying from the position that the Warren Commission was established for the sole purpose of confirming the FBI’s lone gunman theory, McKnight brings some new shine on old data that have been available to the public for more than 30 years. Finally, without speculating as to the motives of individual commission members, McKnight manages to expose the political bias that infiltrated so much of the Warren Commission’s methods. In fact, he walks this tightrope extremely well. Add to the above the fact that the book is extremely well written, and it is not so hard to justify yet another new work addressing the aftermath of JFK’s assassination.

Among assassination buffs, McKnight must fend off at least one key criticism: he appears to have written his book with the end already clear in his mind – that the commission was established for the sole purpose of confirming the FBI’s findings as quickly as possible. Offering this conclusion up front, he then marshals a wealth of evidence to confirm it. After reviewing the circumstances that led to the creation of the commission, the book considers in turn all the troubling circumstances and so-called “smoking guns” that should have given the Warren Commission considerable pause during its deliberations: accusations that Oswald was an FBI agent, the rushed autopsy, the “single bullet” fabrication, and so on. The discussion of evidence before the commission and the way commissioners [*342] sidestepped it is meticulous and exquisitely detailed. Those who are not assassination buffs might want to keep a glossary and timeline at their side as they read this book, so that they can keep straight all the facts as they are unveiled. Meanwhile, for those who wish to rely on McKnight for their own research, his book is well documented and chock full of citations. In the back of the book there are 100 pages of footnotes and appendices.

Perhaps the most engaging stories in the text depict the various antagonisms that existed among key players, including most notably the conflicts between the commission members and FBI Chief J. Edgar Hoover. The commissioners wanted the FBI to cooperate; Hoover wanted the commissioners to follow “the script” and cooperate in a different way. In the end, Hoover got what he wanted. And yet the script that was followed was so poorly constructed that it continues to reflect negatively on both the FBI and the Warren Commission in the annals of American history.

Whether or not McKnight’s argument is bulletproof, it certainly provides him with a device for reconsidering some of the more interesting aspects of the Commission. For example, it seems clear that the resistance President Johnson first met while recruiting Chief Justice Earl Warren and Senator Richard Russell played right into the president’s hands: as unwilling participants, the two most important commissioners would be far less likely to shake the boat and disrupt momentum in favor of the lone gunman theory. (In the end Russell tried to dissent from the single bullet premise, but his two prepared reports were quietly purged from the commission’s record). McKnight lays out the evidence pointing to House Minority Leader Gerald Ford’s role as an informant of the Commission’s deliberations for the FBI. Although the Commission was ably staffed by top-flight prosecutors, it did not have experts on the Mafia, Cuba, or other key subjects, forcing its members to rely on the FBI for such information. Finally, McKnight reveals how the commission members put up with numerous procedural irregularities so that they could move as swiftly as possible to the conclusion that Oswald had acted alone.

Judged as a general interest book about the Kennedy Assassination, BREACH OF TRUST certainly has a lot to offer. Judged as a work of political science, the book might benefit from some additional data and evidence to frame the discussion. After initially rejecting the idea of a commission, President Johnson eventually came around to the idea because the commission’s existence would provide substantial leverage for ending other inquiries and investigations by Congress (p.32). J. Edgar Hoover favored the appointment of a commission for the same reason. A similar thought process led President Richard Nixon to approve the appointment of a special prosecutor during the Watergate affair 10 years later. But is this type of reasoning sound?

McKnight never really addresses the nature of the political circumstances that produce these types of commissions in general. Nor does he provide any [*343] history of such commission-like bodies. Had they been used before? If so, had they worked? Perhaps there are certain circumstances in which commissions effectively serve the function of deflecting other investigations; at other times, however, a commission may stoke the fire of controversy more than it diffuses it.

McKnight further argues that the Warren Commission was never intended to serve as a “truth commission” or an independent investigative body – its job was to “evaluate the FBI’s investigation and report their findings to the American people.” If that is the case, it becomes harder to criticize the Warren Commission for not engaging in more aggressive methods that would have gotten to the bottom of the assassination. At several points in the text he takes the commission to task for failing in its obligation to investigate certain controversial aspects of the Kennedy assassination. But was this really an obligation at all? To properly evaluate McKnight’s conclusions, political scientists might benefit from some discussion of the nature of the charges made to the commission, and the criteria by which such success or failures should be measured.

Finally, BREACH OF TRUST provides readers with a window into a different political era. At a minimum, it reminds us of just how much prestige the media enjoyed in Washington, D.C. political circles during the 1960s, and by implication how much it has lost since that period. McKnight reveals how key figures from the Washington Post and The New York Times helped convinced the FBI and President Johnson that the FBI report could not stand on its own, as the political left would not believe it, and the FBI could not write the report well enough to satisfy most people. They were right on both counts; unfortunately for those in charge, the Warren Commission proved no better a salesman of the lone gunman theory.

Most reviews of books about the Kennedy Assassination end on the somewhat wistful note that despite the noble efforts of the author, we will never know what really happened in Dallas’ Dealey Plaza on November 22, 1963. This book is no different from scores of other books in that regard. Still, thanks to McKnight’s excellent work, at least we now have a little more of a clue as to why we will never know what really happened. And that is at least some measure of progress.

REFERENCES:
Posner, Gerald. 1995. CASE CLOSED. New York, N.Y.: Random House.

Weisberg, Harold. 1965. WHITEWASH: THE REPORT ON THE WARREN REPORT. New York: Dell Publishing.

© Copyright 2006 by the author, David A. Yalof.

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CONFRONTING SEXUAL HARASSMENT: THE LAW AND POLITICS OF EVERYDAY LIFE

by Anna-Maria Marshall. Burlington, VT: Ashgate Publishing Co, 2005. 200pp. Hardback. $89.95/£55.00. ISBN: 0754625206.

Reviewed by Susan M. Behuniak, Department of Political Science, Le Moyne College. Email: behuniak [at] lemoyne.edu.

pp.336-340

It has been nearly 30 years since unwanted sexual attention at work was first labeled as “sexual harassment” and federal courts first recognized this conduct as a form of sex discrimination prohibited under Title VII. Since then, the law has gotten even tougher: the definition of sexual harassment has expanded from quid pro quo to include the creation of a hostile work environment; the behavior of same-sex harassment has been included within the prohibitions; employers have been warned that they must adopt grievance procedures; and employers have been held liable for offending conduct even when they claimed to have not been aware of it.

Stern pronouncements all, and still…

In this book Anna-Maria Marshall documents what most working women know—that sexual harassing behaviors have not in fact disappeared. It is this gap between what she calls the “law on the books” and the “law in action” that is the subject of this study. She quotes Joanna Grossman (2003) who summarizes the problem succinctly: “[A] near-perfect state of rule compliance can peaceably co-exist with an uncomfortably high level of harassment” (p.55).

So, how to explain this discrepancy between rules and practices? What, indeed, has gone wrong? In addressing this gap between law and everyday life, Marshall employs the legal consciousness framework suggested by Patricia Ewick and Susan S. Silbey (1998). The end result is a book that makes dual reinforcing points. The first point is a convincing explanation as to why sexual harassment rules have not had the desired effect of ending these behaviors, and the second point is to demonstrate the utility of the legal consciousness framework as a methodology for studies on law and society.

CONFRONTING SEXUAL HARASSMENT is divided into seven chapters. The first three chapters set the theoretical context in which the later chapters place Marshall’s original research. Chapter 1 establishes the method that she uses to study sexual harassment—a bottom up approach to law and social change that takes as its starting point the experiences of those the law is designed to benefit. Here, she draws from two strands of law and society methods: legal mobilization and legal consciousness. The former usually employs data gleaned from surveys, while the latter asks individuals how they deal with conflicts in their lives and the extent to which they draw on the law to help them resolve them. Following the stages suggested by Felstiner, Abel, and Sarat (1980), the legal mobilization [*336] approach investigates how people name the harmful experience, assign blame, and make claims for redress. In contrast, the legal consciousness approach draws on narrative accounts to capture the frames that people use in understanding the conflict and under what circumstances they then invoke the law, thereby giving meaning to legal rules.

Marshall’s strategy to avoid the limitations of each method, and to study law while also de-centering it, is to synthesize the two methods: the data she draws from narratives are compared to the data from a survey. More specifically, in-depth interviews were conducted with 25 women to collect individual accounts of sexual harassment, and approximately 350 female subjects answered the survey. Her choice of population—that of female members of the administrative staff at one particular university (that she refers to as The University)—will surely raise eyebrows. Why women only? Why at a university? And why no faculty or students? The first question is the least problematic one, because, since it is still women who are the overwhelming victims of harassing behaviors, it makes sense to focus on them. But it does strike me as odd to focus on women in a university setting and to exclude from the study the very people who make The University a unique setting—faculty and students. Marshall is aware of how her choices might limit the generalizability of her study, but does not offer a convincing explanation as to why she chose this particular setting to examine the experiences of working women.

Chapter 2 continues the set-up of the study but from a different direction. Here, Marshall traces the legal environment of sexual harassment, from the pioneering works of Lin Farley (1978) and Catharine MacKinnon (1979), to the judicial expansion of the term from meaning quid pro quo conduct to include the hostile work environment complaint. Marshall points out that it was the judiciary’s emphasis on employer liability that resulted in the near universal response of the promulgation of grievance procedures. Yet, as Marshall foreshadows here, the main objective of these policies seemed to be how to protect the employers rather than how to protect the women – a fact not lost on the women at The University who were skeptical as to the purpose of their own policy.

The third chapter takes a step back from the legal focus to explore the various ways that sexual harassment is understood as an injustice. Although sexual harassment was first defined by the feminist movement as an abuse of power and has since been legally defined as a form of sex discrimination, sexual harassment is still a contested concept. For example, Marshall notes that Feminists for Free Expression have criticized the expansion of sexual harassment to include any form of sexualized behavior in the workplace, while other scholars have argued that practices that come from a male culture in the workplace may not be discriminatory but just business as usual (i.e., boys being boys). Although these perspectives pressure women to rethink whether they are being overly sensitive or too willing to embrace victimhood, [*338] Marshall argues that it is the management frame of sexual harassment that is particularly undermining. From the perspective of human resources, sexual harassment is bad for business and is therefore “a problem for employers rather than women” (p.80). The effectiveness in protecting the employer therefore becomes the gauge for a sound policy. Marshall observes that oddly enough, all three frames (feminist, critics of feminists, and human resources) agree that women should confront their harassers, and if that fails to stop the behavior, then complaints should be filed under the grievance policy.

How, then, did women in the workplace of The University view the harm of sexual harassment, when did they name it as such, and what did they do about it? The next three chapters explore these questions by drawing on Marshall’s interview and survey data. She concludes that it is politics that shape the perception of harm, and law that influences when women label offensive behavior as sexual harassment.

The process that women use to evaluate their experiences is the subject of Chapter 4. Here, Marshall demonstrates the fruitfulness of her innovative methodology. She states that “The perception of injury is a stage in the development of a dispute where oppositional consciousness and legal consciousness may intersect, but it is also a stage that has been overlooked in the legal consciousness literature” (p.89). Indeed, her findings support previous studies that conclude that sexual harassment is still commonplace. The women interviewed and surveyed indicated that while the more intrusive behaviors such as those involving physical contact were considered harmful, they differed in their evaluations of other sexualized conduct, thereby departing from the feminist frames. Marshall concludes that the perception of harm should not be taken for granted by researchers: “While [the women] draw on their personal feelings in making this evaluation, they draw on general frames obtained in the political and cultural debates on equality and sexual freedom for women that problematize everyday life” (p.118).

Chapter 5 makes the oft-overlooked point that sexual harassment cannot be confronted if it is not named. Marshall reminds the readers of the priviso from HARRIS v. FORKLIFT SYSTEMS, INC. (1993): “If the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” The problem is, however, that women do not rely on EEOC or court definitions but turn instead to other sources for guidance, such as brochures from their employers, training programs, and the mass media. Therefore, some of the women at The University considerably narrowed the legal definition by excluding behaviors that made them uncomfortable and by excusing the harassers as just “dirty old men.” For these women, then, sexual harassment does not remain a legal abstraction; instead, they actively defined and applied their understanding to the behaviors they encountered, thereby “creating the legality of sexual [*339] harassment in the workplace” (p.140). Marshall’s contribution here is in offering concrete evidence that law is not created by judges and policymakers alone, but shaped at ground level by the anticipated beneficiaries who are influenced by their own everyday realities and individual understandings.

In Chapter 6, Marshall brings to the forefront a depressing point: “[A]fter 30 years of efforts to regulate sexual harassment in the US, many women are essentially on their own when confronting sexual harassment at work” (p.141). She explains that courts have “entrusted the protection of these rights to employers” who have their own institutional interests (p.141). And so it is that a legal right to work in an environment free of discrimination has morphed into a legal right to complain. Knowing this, many women decide to either confront the behavior on their own or to “lump it,”—that is, put up with it or escape from it by transferring or quitting.

In the final chapter, the author reiterates the point that the problem of sexual harassment is usually studied from the viewpoint of elites – policymakers and employers – and rarely from the perspective of working women. Marshall’s contribution to the field is that she provides a voice for those who should be the beneficiaries of the law—the harassed. Therefore, her method succeeds in supporting the point that measuring the social changes expected to follow from changes in the law needs to be done not only from the view at the top but also from the vantage point of the ground up.

In following the dictates of sound qualitative and quantitative research, Marshall is very careful to allow the data to speak for themselves and to stay within the confines of her study as she draws her conclusions. However, having served for years on the sexual harassment board at my college, Marshall’s points resonate with me beyond what she explicitly states. For instance, her data also debunk several myths that persist in shaping the debate about this issue: that women are quick to cry harassment; that policies are skewed toward the rights of victims; and that feminist ideology exaggerates and fuels the complaints. She also provides a convincing answer to one of the frustrating questions of sexual harassment board members: why don’t those who are harassed reach out to trigger the policy? While she does not say it outright, the main problem seems to be that employers are complicit; they are more interested in avoiding a lawsuit (filed by either the accused or the accuser) than they are in eradicating this form of sex discrimination in the workplace.

This is an important point that needs to be more boldly stated because it may be tempting for some readers to conclude from Marshall’s data that women are at fault for failing to name sexual harassment, blame the harassers, and claim their rights under Title VII. Marshall does not in fact argue this, but to ensure against misunderstanding the implications of the data, I would have had her conclude with a more expansive final chapter to argue the need to alter the working and legal cultures in order to enable women to exercise their rights. [*340] Yet, hers is not intended as a prescriptive work; her goal was to uncover the reasons for the gaps between legal promises and everyday realities. This she clearly accomplishes. It is therefore left to those of us in the field to use this knowledge to confront sexual harassment in everyday life more effectively.


REFERENCES:
Ewing, Patricia, and Susan S. Silbey. 1998. THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago: The University of Chicago Press.

Farley, Lin. 1978. SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN ON THE JOB. New York: McGraw-Hill.

Felstiner, William L.F., Richard L. Abel, and Austin Sarat. 1980-81. “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . .” 15 LAW & SOCIETY REVIEW 631-55.

Grossman, Joanna L. 2003. “The Culture of Compliance: The Final Triumph of Form Over Substance in Sexual Harassment Law.” 26 HARVARD WOMEN’S LAW JOURNAL 3-76.

MacKinnon, Catharine A.. 1979. THE SEXUAL HARASSMENT OF WORKING WOMEN. New Haven: Yale University Press.

CASE REFERENCES:
HARRIS v. FORKLIFT SYSTEMS, INC., 510 U.S. 17 (1993).

© Copyright 2006 by the author, Susan M. Behuniak.

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LAW, CULTURE, AND RITUAL: DISPUTING SYSTEMS IN CROSS-CULTURAL CONTEXT

by Oscar G. Chase. New York: New York University Press, 2005. 224pp. Cloth. $45.00. ISBN: 0814716512.

Reviewed by: Gad Barzilai, Jackson School of International Studies and Law, Societies and Justice Program, and Comparative Law and Societies Studies Program, University of Washington. E-mail: gbarzil [at] u.washington.edu

pp.331-335

Resolving domestic disputes without considerable resort to brute physical violence is a challenge to which various pre-modern and modern societies have embarked to respond in various cultural and institutional contexts. LAW, CULTURE AND RITUAL: DISPUTING SYSTEMS IN CROSS-CULTURAL CONTEXT is a witty and engaging endeavor to explore, once again, the classical phenomenon of “reflexive connection between culture and disputing processes” (p.2). The author, Oscar G. Chase, claims that venues of dispute resolution are embedded in culture, and furthermore, dispute resolution institutions and procedures have deeply affected various cultural settings. As I will note below, the book constitutes a good contribution to our professional knowledge, and it is a must reading, notwithstanding some problems and absence of some necessary theoretical, as well as comparative, discussions.

The possible theoretical relationships between power, culture and disputing processes are analyzed in the introduction. Chase argues, convincingly, that power is a cultural construct, since it cannot be de contextualized, and in turn it is a constitutive aspect of dispute processes. He criticizes the myth as if processes of disputing are neutral: “Dispute-ways are never neutral as between competing social groups, even if they are in fact neutral as between the individual disputants” (p.4). Chase’s claim is a good departure base for an innovative piece of research. The book aims to provide a cultural analysis of disputing processes because power itself is not merely a structural issue: “The metaphysics, values, symbols, and social hierarchy of any collectivity will set the bounds within which it organizes its dispute-handling institutions” (p.5). Although the book does not invite a new concrete definition of culture, it asserts that dispute process elite are themselves products of culture and are likely to produce and reproduce procedures that resonate effectively with the dominant culture. Referring somewhat questionably to Pierre Bourdieu, Chase postulates that law is immersed in the ability of elite to monopolize language and practices. Yet, he argues, culture is the setting through which law has its life and meanings.

But what is culture above a set of norms and practices? How and why does a society decide on a specific set of dispute procedures and how do those procedures change? Why might elites agree to have specific institutional arrangements and not others? The rest of the book replies to those questions with some degree of accomplishment. In the [*332] subsequent chapters, readers find insightful analysis of several systems of dispute resolution, primarily in the US, with a limited in-depth study of non-Western procedures. The second chapter narrates a fascinating case of the Azande of Central Africa and their reliance on oracles and ordeals to resolve disputes around infidelity. The pre-modern dispute resolution scenario is explored first in order to have better perspectives on modernity. The chapter exhibits how the Zande disputing ways have generated patriarchy and maintained social discipline and obedience to the political elite. However, since critical studies have long demonstrated that judicial procedures maintain social order and patriarchy (Kairys 1990; Olson 1990), the value of the Zande experience to our knowledge is somewhat limited since no additional analyses of pre modern societies are offered. Furthermore, the author does not develop a significant discussion of cultural relativism and its place in studies of comparative law. Only in the “Afterword” does Chase suggest some measures of cultural relativism. One could argue that no culture may be comprehensible without drilling emphatically into its own virtues and mechanisms (Barzilai 2003).

Instead, the book leaps to the North American experience of contemporary disputing systems. The third chapter contends that modern law functions as an oracle. Following a tradition of literature in law and society, Chase is skeptical about truth finding: “It is the skepticism that is also an aspect of modernity and that to some extent defines the ‘postmodern.’ The contingency, the relativity, the subjectivity of belief cannot be completely suppressed even in a process devoted to the discovery of the truth on which much value depends, for these doubts is another ingredient of the cultural mix. Available truth- and law-finding techniques are fallible and on one level seen to be so” (p.42). This argument is rooted in many previous studies (e.g., Scheingold 2004), but Chase provides us with an insightful analysis of dispute procedures in the US.

Accordingly, Chapter 4 looks into the exception of the American system of dispute resolution. Tracing its sources in English common law, Chase analyzes the distinctiveness of the jury system, its virtues and deficiencies. While Chase uncritically connects its embeddedness in the culture to American individualism and ‘egalitarianism,’ more room should have been devoted in the book to analyzing the jury system’s effects on power and culture. Such an effort demands more empirical research and comparative study, both of which are only partially provided. Chase points to the importance of the jury system to citizenship empowerment, however his treatment is unsatisfactorily brief with no in-depth original empirical study.

Similarly, the book offers an investigation of the rather passive role of the judge and the significant weight given to discovery of documents and evidence of experts in the American adversarial system. On the one hand, somewhat like legal realists in the first half of the 20th century, Chase insightfully points out that the expert witnesses in American courts invoke the [*333] myth of law as do the oracles in Zande trials (p.66). On the other hand, he circumvents a critical examination of the sources of that myth and only very partially uncovers the interests of political and economic elites to maintain it. The cultural explanation offered to explicate the exceptionality of the American legal system is rather vague and refers to “egalitarianism, individualism, laissez-faire, liberty, and populism identified in so many areas of America’s social life” (p.69). It remains, however, to examine how such an explanation is in some disjunction from previous studies that trace the intergenerational and genealogical sources of the myth of law as ‘professional’ and ‘objective’ (Fitzpatrick 1992; Barzilai 2004).

The exceptionality of the US legal setting is only one facet of the effort to understand the reflexivity of culture and disputing systems. Chapter Five focuses on the rise of discretionary power as part of judicial disputing processes. Two main developments are underscored as sources of discretion. The first process is the rise of business efficiency and private economy, producing pressure to have more inclusive and accessible legal systems that in turn generate more de-centralized political, social and economic life. The second process is the uncertainty and lost of faith in the rule of law. In this cultural context, Chase successfully explicates why the development of discretion serves power: “Observe, then, that discretion fits rather well with individualism. It is, after all, the facilitation of individualized justice that is discretion’s claim to legitimacy. A litigant might well accept even dramatic growth of authority if convinced that it would lead to more respect for his particular condition” (p.92). However, the theoretical connection between the finding that discretion has maintained political power amid privatization, and critical studies that understand discretion as a central phenomenon legalizing the very essence of capitalist order, is missing.

We need to de-center our vision of disputing systems. Indeed, the sixth chapter explores the cultural reasons for development of ADR [alternative dispute resolution]. Chase correctly points out that ADR in the US, although historically rooted in English settlers’ communities, originated in a judicial interest to ease court overload. More interestingly, however, he presents several other explanations. First, counter-cultural forces have protested against the hierarchy of judges and protested a dependency on lawyers. The second force is privatization that has encouraged out-of-court means of dispute resolution. However, the chapter is lacking comparative perspectives. The literature on mediation is vast, and the cumulative comparative knowledge is insightful. Why not mention the TRC [Truth and Reconciliation Committees] in South Africa and Latin America, or private judging in Middle Eastern societies to inform our insights (e.g., Gibson 2004)? A more comparative perspective would have enabled us to examine reflexivity of culture and law in more detailed and powerful ways.

Chapter Seven, advancing our understanding of litigation as ritual and law as a setting of rites, is the most [*334] important chapter in the book. Chase powerfully demonstrates that “[t]hese qualities of ritual empower it to affect human belief and behavior because it enlists emotion in the service of persuasion” (p.116). The rituals in courts, much like the special formal cloths, lingual formulations of arguing, and rules of evidence and behavior, as part of litigation, are ceremonies of transformation through which judges empower themselves and litigants yield to judicial power. These rituals also de-personalize social relations in the courtroom, in ways that mythologize courts and judges.

Disputing processes significantly influence society. Although this argument is one of the fundamentals of the book, the analysis in Chapter Eight is rather secondary and is not well elaborated. Chase primarily relies on previous theoretical studies and presents no new data: “That a set of social practices predominant in one area of human life, such as disputing, can importantly influence practices, beliefs, and norms in other areas of society has been recognized by, among others, Pierre Bourdieu” (p.127). Chase refers to studies on the generation of culture through institutional processes, he does not fully explicate why and how the influences of disputing processes are significantly different from any other routine practices that affect culture. However, since the presumption is that disputing processes may represent constitutive sources of cultural change, Chase concludes by inviting policy makers to consider how public policy reforms affect the overall culture. Thus, as Chase claims, even if canceling the civil juries in the US will make trials more efficient and less costly, their importance to the empowerment of citizenship outweighs such a reform. The book recommends policy makers to consider that: “The jury is an institution that serves well the functions Kelman and Hamilton describe as important to the maintenance of a nonauthoritarian society. It promotes individual agency, dispersion of authority, and the recognition of multiple perspectives. This cultural role should not be ignored” (p.140).

REFERENCES:
Barzilai, Gad. 2004. “Culture of Patriarchy in Law: Violence from Antiquity to Modernity.” 38 LAW & SOCIETY REVIEW 864- 887.

Barzilai, Gad. 2003. COMMUNITIES AND LAW: POLITICS AND CULTURES OF LEGAL IDENTITIES. Ann Arbor: University of Michigan Press.

Fitzpatrick, Peter. 1992. THE MYTHOLOGY OF MODERN LAW. London: Routledge.

Gibson, James L. 2004. OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? New York: Russell Sage Foundation.

Kairys, David (ed.) 1990. THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE. New York: Pantheon Books.

Olson, Frances. 1990. “The Sex of Law.” In David Kairys (ed.) THE POLITICS OF LAW. New York: Pantheon Books, pp.453-467. [*335]

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

© Copyright 2006 by the author, Gad Barzilai.

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POLITICAL DEMOCRACY, TRUST, AND SOCIAL JUSTICE: A COMPARATIVE OVERVIEW

by Charles F. Andrain and James T. Smith. Boston: Northeastern University Press, 2005. 231pp. Cloth. $65.00. ISBN: 1-55553-645-X. Paper. $26.00. ISBN: 1-55553-646-8.

Reviewed by Helen J. Knowles, Department of Political Science, Boston University. Email: h.j.knowles [at] gmail.com.

pp.328-330

You can lead a horse to water, so the idiom goes, but you cannot make it drink. The same applies to people and political participation – you can place a person in a democratic society and provide him or her with the tools to participate, but what that person does with those tools is that individual’s decision alone. This decision is, as political scientists Charles F. Andrain and James T. Smith remind us, contingent upon a multitude of factors, not the least of which is the degree of trust that the governed place in the actions of the governors.

In POLITICAL DEMOCRACY, TRUST, AND SOCIAL JUSTICE, Andrain and Smith have written a book whose interdisciplinary and comparative approach makes a valuable (and timely) contribution to the political science literature. Using data from fifteen democracies, they provide a scholarly overview (recognizing the existence of that word in the subtitle is crucial to evaluating this book’s value) of variables that help to explain why not all democratic governments enjoy equal confidence and trust from their citizens. Scholars of comparative politics and international relations will find the book of great value. It also provides avenues for future research that will interest the law and politics community.

Drawing on data from the 1995-1997 World Values Survey (WVS) – a social science dataset created by interviewing sample publics in over eighty countries worldwide, and described by its creators as “a comprehensive measurement of all major areas of human concern, from religion to politics to economic and social life” – Andrain and Smith focus their study on fifteen “societies” (World Values Survey). They examine eight “established democracies” (Norway, Sweden, Finland, Switzerland, West Germany, the United States, Japan, and Spain) and seven “democratizing societies” (East Germany, Bulgaria, Russia, Mexico, Argentina, Brazil, and Chile). The analysis of these data employs a political exchange approach to politics. This approach is premised upon the belief that confidence in a political institution will diminish as that institution fails, in the eyes of the governed, to “uphold moral-spiritual values and satisfy material interests” (p.2). This generates the conclusion: “If a wide gap occurs between expected (valued) benefits and actual perceived benefits, then institutional confidence will decline” (p.150).

After an introductory chapter in which the book’s hypotheses are outlined, chapters two through five examine these hypotheses in the context of economics, political participation, law and justice, and democratic attitudes. In chapter [*329] two, Andrain and Smith explore the relationship between the economic policies produced by the democratic governments in the studied states, and the impact (positive or negative) of these policies on the citizens’ perceptions of the policymakers. Their analysis is prefaced, and then contextualized by a discussion of neoliberalism, an emphasis reflecting the influence of this school of thought on economic policies of the 1970s through 1990s that, not coincidentally, Andrain and Smith argue, was a period of increased distrust in government.

Similarly organized, insofar as the substantive analysis is prefaced by a literature and theory review, chapter three examines the interaction between political participation and support for democratic systems. This chapter demonstrates how the WVS dataset can make an important contribution to navigating the complex issues surrounding political participation. For example, the data confirm that both the society in which one lives and individual-level variables affect a person’s ability and willingness to engage in political activities. They confirm that, to draw on just one segment of the political science literature, the political participatory response of citizens to elite discourse is indeed affected by the four axioms of public opinion identified by John R. Zaller, and that the national differences in these responses are ultimately offset by individualized differences.(Zaller 1992)

Chapter four will be of greatest interest to the law and politics subfield, because it deals with “Cultural Concepts of Justice.” It is this chapter, however, that also exposes the main analytical and methodological problem with which Andrain and Smith grapple but never really come to terms with. “Because of measurement problems and complex, diverse dimensions of general cultural values not only within each nation but in every individual,” the WVS “National Rankings of Cultural Values” – the heart and soul of the dataset – “reveals few distinctive national value patterns”(p.105). While not finding something is, of course, a finding in and of itself, this observation is, nevertheless, telling because it exposes the crucial limitation of this dataset, not just for these authors, but for those who wish to pursue the lines of inquiry that this book opens. The authorial dilemma presented by the data is that the individualistic nature of the values that determine degrees of trust in democracy makes generalizations very difficult.

This does not go unnoticed by Andrain and Smith. In fact, in chapter six (I discuss chapter five below) we find its exposure treated in quite some depth. This discussion is couched in the language of dilemmas faced by democratic systems. The authors identify seven of these dilemmas (each of which could easily be the basis for its own book) – five theoretical, one ethical, and one policy-based. The theoretical dilemmas are inextricably intertwined, dealing with the (often tense) relationships between individuals (the rulers and the ruled) and social structures; elite and mass political participation; social conflict and democracy; limited and activist government; and politics of [*330] morality/ideology and pragmatism. These are intertwined because of the ethical and policy dilemmas that pit equality against individual liberty.

Over a quarter century ago, John Hart Ely (1980) explained that democracy is unavoidably paired with distrust, hence the need for a legal system that ensures procedural fairness by, inter alia, treating the governed and the governors alike. Although we can argue about what this fairness is, and what kind of system achieves it, Ely’s contention makes a more profound observation which members of the law and politics community must surely keep in mind when reading Andrain and Smith’s volume. It may be true that we can justifiably frown upon the political machinations that contribute to this distrust. Ultimately, however, there is much to the argument that this distrust is a necessary part of maintaining the legitimacy of a democratic system. However, if that system is composed of a ‘government of laws, not of men,’ then there is also much to the argument that the citizens’ distrust of their leaders is a necessary part of maintaining the system’s legitimacy.

That this is at the heart of Andrain’s and Smith’s analysis (although, the authors do not explicitly say so) is a conclusion that the reader can draw from chapter five – which, unlike the sixth chapter, represents the real substantive end to the book. Here, the authors’ discussion of the role in a democracy of “adversarial views toward an outgroup perceived as dangerous” (p.123) is clearly timely. On the one hand, write Andrain and Smith, “People threatened by these groups give lower support to democratic values.” On the other hand, “If citizens perceive that public officials have taken steps to provide security against the threatening group, then their confidence in government institutions may rise” (p.123). This suggests that, at the end of the day the most important value to keep in mind when either evaluating or participating in a democracy is ‘tolerance.’

William Gladstone, a long-time British Prime Minister, famously remarked: “Liberalism is trust of the people, tempered by prudence; conservatism, distrust of the people, tempered by fear” (Henry 1986, at 254). The political exchange framework shows us that there is a trust-based reciprocal relationship between the governed and the governors. Andrain’s and Smith’s analysis of WVS data shows us that this relationship can, and does, work well in a number of very different counties, when the trust is infused with a healthy dose of distrust.

REFERENCES:
World Values Survey [http://www.worldvaluessurvey.org], last accessed April 27, 2006.

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

Henry, Lewis C. (ed). 1986. BEST QUOTATIONS FOR ALL OCCASIONS. New York: Ballantine.

Zaller, John R. 1992. THE NATURE AND ORIGINS OF MASS OPINION. New York: Cambridge University Press.

© Copyright 2006 by the author, Helen J. Knowles.

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MUSLIM LAWS, POLITICS AND SOCIETY IN MODERN NATION STATES: DYNAMIC LEGAL PLURALISMS IN ENGLAND, TURKEY AND PAKISTAN

by Ihsam Yilmaz. London: Ashgate Publishing, 2005. 270pp. Cloth. $99.95/£55.00. ISBN: 0-7546-4389-1.

Reviewed by Mark Welton, Department of Law, United States Military Academy. Email: Mark.Welton [at] usma.edu.

pp.324-327

The premise of this timely book by Ihsam Yilmaz is simple but important. Muslims living in modern states (in which they may be either a majority or a minority of the population) resist assimilation into the official legal culture of these modern states; instead, they “skillfully navigate” between meeting the requirements of official law and preserving their own unofficial, customary and Islamic legal traditions. This is demonstrated by three case studies – England, Turkey, and Pakistan – and is evident most clearly in the area of family law. These three states have adjusted with varying degrees of success to the legal pluralism that is an inescapable consequence of the post-modern conditions that prevail within them. In an era of religious confrontation between and within societies, understanding the dynamics of this process is self-evidently valuable.

As described in the two introductory chapters (“Law, Politics, and Society in the Post-Modern Condition,” and “Dynamic Legal Pluralism”), modern states seek control of social organization by requiring uniform adherence to a single official structure of laws. However, post-modern theory challenges the ability of states to achieve this control due to the prevalence of diverse local communities based on gender, ethnicity, culture and religion. Legal pluralism, not uniformity, characterizes the populations of these states, in which local communities insist on preserving their own legal values alongside the official system. These local communities have learned to navigate between the official and unofficial laws to best suit their needs. While studies of legal pluralism in the past have focused on traditional societies, recent scholarship, including this study, applies theory to the phenomenon in modern, more urbanized states. This has resulted in the insight that laws and societies are not just somehow dependent on one another, but rather interact in complex systems that must account for official laws, unofficial laws, legal rules, and legal postulates.

Yilmaz’s discussion of “Muslim Legal Pluralisms” carries this theme forward, succinctly but thoroughly summarizing Islamic law and jurisprudence to provide a foundation for readers unfamiliar with the Shari’a and fiqh—that is, the structure and processes of Islamic law. Despite the past and present variety of approaches to the formulation and interpretation of the Shari’a, there are certain methodologies and parameters to resolving disputes required by the Islamic system, and these must be understood in order to appreciate the interaction between Islamic law and [*325] official western or western-based legal systems.

The choice of England, Turkey, and Pakistan for the case studies provides a good balance. The first is a modern western state in which Muslims are a minority, while Turkey is a modern secular state in which Muslims are a majority. Pakistan is a modern Islamic state in which Muslims are also a majority.

The approximately two million Muslims in England have successfully adjusted to life “on their own terms,” maintaining their own cultural, religious, and even legal identities. Although English law has officially recognized the legal claims of certain religious minorities (Jews and Sikhs), it has not accorded such recognition to Muslims; nevertheless, Muslims have not insisted on official recognition of the Shari’a in areas such as family life. Instead, they have generally achieved a level of unofficial autonomy, for example, by resorting to mediation rather than the courts in many types of disputes, or by marrying or divorcing twice, once through official channels and again under the Shari’a rules. The English legal system is sufficiently flexible to accommodate this pluralism without undue strain.

The chapter on “Muslim Legal Pluralism in Turkey” starts with a short history of the development of modern (“westernized”) Turkey from the late Ottoman Empire to the Turkish Republic. Yilmaz concludes that, despite gradual secularization of law in the 19th century, and intense and thorough secularization of law immediately preceding and following the founding of the Republic in 1923, with new legal codes, procedures, institutions, and education, traditional Muslim law nevertheless continues to affect both the public and private lives of the people, who have “reconstructed” Islamic laws to satisfy both official (state) and unofficial (personal and communal) requirements. As in the other chapters, Yilmaz supports his conclusions with relevant statistics regarding patterns of marriage, divorce, and other aspects of (primarily) family life, which reflect persistent adherence to Islamic local law and customs despite the demands of adherence to the rules of the official legal system.

Unlike England and Turkey, Pakistan is built on an ideological foundation of Islam, but like the other two countries, state law is the only official legal authority. Despite the ideological foundation of Islam, and more than in England and Turkey, the conflict between official (Anglo-Mohammedan) state law and unofficial (Shari’a) law in Pakistan, especially in the area of family law, has led to serious social fragmentation. This is exacerbated in Pakistan because the “Islam” followed by its adherents is heavily tinged with customs that are Hindu in origin, resulting not only in confusion about what the Shari’a requires, but even greater resistance to official state laws that deviate from customary practice. Moreover, official laws are viewed as formalities that provide ineffective punishment or other forms of deterrence. As a result, official limits on the age of marriage, on polygamous marriages, and [*326] the husband’s right of divorce have achieved only limited success.

Yilmaz summarizes these case studies with the observation that just as the state, society, and religion interact with one another in the socio-legal sphere, the legal arena is characterized by the interaction of official law, unofficial law, and legal postulates. Legal pluralism is a characteristic of post-modern societies, even to the extent of accommodating traditional religious systems such as the Shari’a. The reluctance of modern states to accept legal (as opposed to social) pluralism has been overcome by the ability of Muslims to transverse the gap between official and unofficial law in numerous ways. In the future, these states may need to adopt a “supra-modern” legal system that takes greater account of legal pluralism within their borders. At the same time, Islamic law itself will have to adapt to developments among the Muslims who will continue to insist on applying their legal norms to the conditions of modern western and Islamic states.

There are many strong points about this book. The text is supported frequently and consistently with authoritative citations. The writing style is concise, free of unnecessary jargon, and contains full explanations of Islamic and other technical terms. The bibliography is extensive.

On the other hand, the plethora of citations and statements based on them can sometimes lead to confusion. For example, Yilmaz states (with numerous citations) that “[in Turkey] polygamous marriages are only exceptional; the ratio of polygamous marriages has been minimal in the history of Turkey,” but shortly thereafter he notes (with three citations) that “the polygamous local tradition, in the same proportion in which it existed in the past, is still rife. . . . In public, the number of males who marry polygamously and defend that state of affairs has been steadily increasing” (p.114). The editing is sometimes poor; there are frequent errors of punctuation, such as semicolons in place of commas and sentences that repeat almost verbatim the preceding sentences.

Moreover, the author’s repeated instance on certain motifs – for example, Muslims as “skilled” cultural navigators in situations of legal pluralism – can be overdone. Not all Muslims are necessarily skilled in the postmodern art of transversing the domains of their own laws and customs and the official legal systems of the host country. Conflicts of identity and allegiance to the state and to Islam within families and communities, especially between generations, are also common and problematic, particularly within western states.

Nevertheless, on the whole, the text is readable and convincing. The point is well-made that many Muslims have successfully employed strategies to satisfy the requirements of their own laws within the context of state legal systems that, to various degrees, accommodate or resist such accommodation. Tradition and custom, reflected and reconstituted in Islamic law, remain compelling forces within modern societies in which Muslims are both a minority (England) and a majority [*327] (Turkey and Pakistan). The degree to which modern states can adjust their laws to accommodate this dualism varies, and Yilmaz’s conclusions seem to be supported by other examples, such as the thousands of Muslims in New York who rely on local imams rather than official channels for resolution of legal problems, and by the recent public demonstrations in France by Muslim women, who insist on religious dress (hejab) in schools, and the government of that state that seems perhaps the least willing of any modern western state with a substantial Muslim population to yield its official monopoly on law, including a rigid secular dress code in public schools. These conflicts are likely to persist. This study is a therefore a timely and valuable contribution to understanding the dynamics of this important subject.

© Copyright 2006 by the author, Mark Welton.

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INTELLECTUAL PROPERTY IN THE NEW MILLENNIUM: ESSAYS IN HONOUR OF WILLAM R. CORNISH

by David Vaver and Lionel Bently (eds). New York: Cambridge University Press, 2004. 322pp. Hardback $100.00/ £60.00. ISBN: 0-521-84643-9.

Reviewed by Ann Bartow, University of South Carolina School of Law. E-mail: Bartow [at] law.sc.edu

pp.320-323

This book is a collection of twenty essays that are grouped into four categories: “General Intellectual Property,” “Patents and Plant Protection,” “Trade Marks and Unfair Competition,” and “Copyright, Moral and Neighboring Rights.”

According to the Preface:

The contributions reflect some of the most pressing practical and theoretical concerns which intellectual property lawyers face today. These include the adaptation of intellectual property law to meet the challenges of digitization and biotechnology; conflicts between developed and developing countries over the appropriate level of intellectual property protection; the relationship between different legal traditions in a world of increasingly shared international norms; and the relationship between intellectual property rights and neighbouring areas of law. (p.xiii).


The range of writings is just as broad and sophisticated as that paragraph suggests. This is both a strength and a weakness of the work. While many of the individual essays are well written and fascinating, they lack any coherent theme or organizing principle. Other than honoring William R. Cornish, whose lengthy and impressive curriculum vitae is included in the book at pages 289 through 298, it is a little difficult to discern the exact purpose of the book. The essays cover a broad range of topics at high levels of complexity, so it is unlikely to serve as a treatise or reference work. Few of the essays contain enough introductory or explanatory material to draw in or effectively educate a newcomer to the intellectual property law field. The preface describes the project as a “festival of writing” (p.xiii). However, it is unlikely that readers with enough expertise in one of the discreet areas of intellectual property law to appreciate the observations of the authors who contributed essays in that specialty will find all or even a majority of the essays of interest. Experts in patent law would likely skip the portions of the tome dedicated to trademarks and copyrights, and the trademarks and copyrights oriented readers are likely to confine their reading to their subject areas as well. It is possible that all readers will find some of the essays designated “General Intellectual Property” of interest, but many of those are actually fairly specialized too.

It is unfortunate that each essay does not begin with a brief abstract that lays out a thesis to help the reader divine its substance and point of view at the outset. Some of the essays are quite connected to the scholarly contributions of William Cornish, while others do not directly engage his works. Some are largely [*321] descriptive, while others have a distinctly normative agenda. They are diverse in tone and coverage, as well as content. Unless the book is made available in a searchable electronic format, the essays risk being overlooked by researchers who are unwilling to invest the time in perusing the volume to discern whether it might contain anything of pertinence to a particular topic.

The book concludes with a brief index. An annotated list of the essays contained within the book follows:

1. International Intellectual Property Jurisprudence after TRIPS, by Michael Blakeney (pp.3-19). This essay provides an overview of the legal sources of international intellectual property law, the international regimes that administer international intellectual property, and the main principles of treaty interpretation in international law, with illustrative examples.

2. Harmony and Unity of European Intellectual Property Protection, by Hans Ulrich (pp.20-46). This well-footnoted essay critiques aspects of unification and harmonization of intellectual property laws in the European Union as perhaps an ill-considered “rush to unity and uniformity” of process at the expense of national interests and a smooth transition to harmony and unity of the substance of the law.

3. Oskar Hartwieg’s Thoughts On The English Legal System, by Dieter Stauder (with David Llewelyn) (pp.47-57). This essay gives a brief overview of Oskar Hartweig’s approach to comparing English law and German law. Hartwieg is described as a friend and contemporary of Cornish, which is apparently the reason that this essay was included in the collection.

4. Intellectual Property in a Peripheral Jurisdiction: A Matter of Policy? by Hector L. MacQueen (pp.58-76). This essay describes the origin and unique characteristics of modern intellectual property laws in Scotland.

5. Creating the Community Patent and its Court, by The Rt. Hon. Sir Robin Jacob (pp.79-90). This essay articulates the historical development of European Patent and European Patent Court proposals.

6. Patents – What’s Invention Got to Do With It? by Sir Hugh Laddie. (pp.91-95). This brief essay explains that the civil law approach to intellectual property is driven by a concern for moral rights, while the common law approach has an economic justification. Inventiveness, the author asserts, is an illogical basis for deciding what is worthy of a monopoly, because “the requirement of inventiveness is unrelated to the commercial justification for patents” (p. 94).

7. Common Law and Civil Law Approaches to Patent Claim Interpretation: ‘Fence Posts’ and ‘Sign Posts,’ by Donald S. Chisum. (pp.96-108). This essay discusses the difficulties of harmonizing the patent laws of Germany and the U.K. with respect to judicial patent claim interpretation. [*322]

8. Indirect Infringement of Patents in Israel: Judge-made Law, by Amiram Benyamini (pp.109-123). This essay critiques the use of the indirect infringement doctrine by Israeli courts, warning that deriving ideas from different patent systems will lead to “an disharmonious doctrine of indirect infringement” (p.123).

9. Genomics and the Food Industry: Outlook from an Intellectual Property Perspective, by Joseph Straus (pp.124-136). This essay discusses the intersection of genomics, the food industry, and patent law and policy, with particular attention to TRIPs.

10. From ‘Outmoded Impediment’ to Global Player: The Evolution of Plant Variety Rights, by Margaret Llewelyn (pp.137-156). This essay describes changes in monopoly protections for plant innovations in Europe, and articulates a view that as the property rights in plant materials have increased, the rights for plant breeders have decreased correspondingly. The author expresses concern that this could become an impediment to future plant innovations.

11. Dilution of a Trade Mark: European and United States Law Compared, by J. Thomas McCarthy (pp.159-174). This essay very clearly and cogently explains the problematic and inconsistent ways in which trademark dilution theories have been adopted and distorted by courts in both the U.S. and in the European Union.

12. Unfair Competition: Is It Time for European Harmonization? by Gerald Dworkin (pp.175-188). This essay expresses some skepticism about the necessity and advisedness of the expansion of unfair competition doctrine that might accompany a harmonization movement.

13. Coexistence Between the Tort of Passing Off and Freedom of Slavish Imitation in Polish Unfair Competition Law, by Stanislaw Soltysinski (pp.189-201). This essay describes the tension between protecting companies from “misappropriation” of their commercial innovations, and allowing free competition, in Poland.

14. Confidentiality, Patents and Restraint of Trade, by Jim Lahore and Ann Dufty (pp.202-213). This essay describes the “inherent tension between the protection given to confidential information or trade secrets, and that given to patents for inventions which will inevitably be published in the process of prosecuting the application to grant” (p.202).

15. The Berne Convention: The Continued Relevance of an Ancient Text, by Sam Ricketson (pp.217-233). This essay charts the modern ascendancy of the Berne Convention within the contemporary framework of international copyright law.

16. The (New?) Right of Making Available to the Public, by Jane C. Ginsburg (pp.234-247). This essay analyzes the scope and meaning of the “right making available” in the 1996 WIPO Copyright Treaty, using illustrative examples in addition to doctrinal analysis. [*323]

17. Private Copy Licence and Levy Schemes: Resolving the Paradox of Civilian and Common Law Approaches, by Andrew F. Christie (pp.248-258). This essay contrasts the ways in which civilian and common law systems in Germany, Australia and the U.K. handle private copying, looks at legislative efforts to address private copying in Germany, Canada and the United States, and suggests future approaches to the issue.

18. Paternalism and Autonomy in Copyright Contracts, by Paul Goldstein (pp.259-265). This brief essay asserts that U.S. law treats authors paternalistically with respect to copyright contracts and is critical of these practices.

19. Criminality and Copyright, by Colin Tapper (pp.266-279). This essay considers “first, the validity of the criminalization of the infringement of intellectual property rights, in the light of history; and second, very briefly, the value of doing so, in the light of policy” (p.267).

20. Towards New Forms of Neighboring Rights Within the European Union? by Pascal Kamina. (pp.280-288). This essay critiques the fact that copyright laws were harmonized “upward, to the highest existing standard” (p.280) with little debate or reflection, and proposes three areas for reform: “the introduction of a neighboring right for organizers of cultural or sporting events; the introduction of a broadly defined neighboring right in all recordings; and the extension of the scope of the neighbouring right of broadcasting organizations to other types of broadcasters or transmitters” (p.284).

© Copyright 2006 by the author, Ann Bartow.

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THIS IS NOT A PEACE PIPE: TOWARDS A CRITICAL INDIGENOUS PHILOSOPHY

by Dale Turner. Toronto, University of Toronto Press, 2006. 200pp. Cloth. CDN$55.00 / £35.00 / US$55.00. ISBN: 0802080162. Paper CDN$25.95 / £15.00 / US$24.95. ISBN: 0802037925.

Reviewed by Mark Andrews, Associate Counsel, Tanana Chiefs Conference, Fairbanks, Alaska. Email: markandrews [at] ak.net.

pp.315-319

Introducing the reader to his defense of Canadian Aboriginal rights, Dale Turner quotes Ludwig Wittgenstein: “We are struggling with language. We are engaged in a struggle with language.” Specifically, Turner sees the struggle waged on terrain described in the opponent’s language. THIS IS NOT A PEACE PIPE surveys that terrain.

THIS IS NOT A PEACE PIPE deals exclusively with Canadian issues. Its value extends farther. The book’s immediate importance is to Canadian advocates for Aboriginal rights, but its longer-term significance lies in its example to advocates for indigenous rights elsewhere.

THIS IS NOT A PEACE PIPE examines several proposals from recent decades intended to resolve issues between Aboriginal and non-Aboriginal Canadians. Turner finds that none is a peace pipe. None of the proposals, however well-intentioned, accepts Aboriginal peoples on their own terms; each assumes a single Canada based on the terms of Western liberalism.

The decolonization of the English-speaking colonies occurred mostly in the 1950s and 1960s. The most noticeable development was the legal separation of countries that were also separate geographically. But a corresponding development occurred within countries that were once English colonies but were no longer ruled by the indigenous populations. These internal populations gained additional rights.

Australia made Aboriginals equal citizens in 1967. In 1975 the United States passed the Indian Self-Determination and Education Assistance Act, which extended a great deal more self-government to Indian tribes. The same year, New Zealand passed the Treaty of Waitangi Act, intended to confirm and observe Maori rights stated in the 1840 Treaty of Waitangi.

Recognition, however, did not mean acceptance. The rulers of Rhodesia understood what was happening and declared an independence in 1965 which expired in 1980. From 1963 to 1981 South Africa gave the aboriginal peoples nominal self-rule over internal ethnic homelands.

Turner’s book examines the Canadian response within this larger series of events. His starting point is the White Paper of 1969, which would have eliminated the legal distinctions between Indians and non-Indians. Although the White Paper was rescinded as official policy, its influence continues. “Its proposals were a calculated attempt by the federal government to . . . level the [*316] political landscape by unilaterally legislating Indians into extinction – and to do so as an act of justice” (p.12).

Turner gives the term “White Paper liberalism” to this ideology. The White Paper rested on Western assumptions about “the individual as the fundamental moral unit of a theory of justice” (p.13) and about freedom and equality. Turner acknowledges that the White Paper was offered in “genuine good will” (p.14) but argues that its good intentions did not mitigate its objectionable content.

Turner identifies several general policy choices in the White Paper, each arising from assumptions of individualism, equality, and Canadian citizenship, and he targets one in particular: “There is no such thing as Indian nationhood” (p.23).

Turner not only opposes the assimilationist model, he advocates for Canadian recognition of Aboriginal rights as a distinct category. “Indigenous rights are a sui generis form of group rights and not merely a class of minority rights” (p.31). There is a difference in kind, not merely quality, between the rights asserted by the Aboriginal peoples and those asserted by other nonwhite populations.

When Turner rejects the notion of Canadian Aboriginal rights as another class of minority rights, he arrives at the same conclusion as Raj Vasil (2000), writing of the rights of Maoris in New Zealand. There Vasil rejects the idea that other non-Maori, non-European groups should be granted the same status as the Maori. When discussing solutions for New Zealand, Vasil looks to Canada. That is a surprise, but there is a twist. Vasil does not cite Canadian proposals regarding Indians and non-Indians. Instead, he points to the law regarding English and French Canada, recognizing the distinct character of the French-speaking people. Perhaps Vasil was attracted by a solution which resulted in a Canadian biculturalism rather than multiculturalism.

In Turner’s view, the White Paper fails completely. Among other things, its liberalism fails to question the legitimacy of the initial formulation of the Canadian state. On this fundamental question of state legitimacy, Turner’s position is unclear. At one point he says he does not advocate dissolution of Canada, but rather that he is only questioning the unilateral assertion of sovereignty over the land of the people who were first living there. But later he supports the principle that “the existence of the Canadian state is not a given” (p.37). THIS IS NOT A PEACE PIPE does not adequately resolve the tension between these positions.

In the 1982 changes to the Canadian Constitution, aboriginal rights received some legal recognition. Turner notes that in discussions leading to the changes, the Aboriginals were consultants rather than participants. He acknowledges, without mentioning expressly, that this situation follows easily from liberal premises. Under liberalism the focus is the individual, and all individuals are equal. Given that assumption, it does not matter that Aboriginals offered only input from the sidelines; Aboriginals are individuals who have interests similar to any other [*317] individual. Thus, theoretically, any person sitting at the negotiation table can represent the interests of the Aboriginal people (or of anyone else). It is this unspoken argument where Turner finds his target. He argues that aboriginal claims stand outside Western cultural principles and cannot be adequately defended by non-Aboriginals who hold the real power to make binding decisions.

Turner devotes chapters to Allan Cairns and Will Kymlicka, each of whom have written of Canadian Aboriginal rights. In these chapters, PEACE PIPE would have been improved by a more thorough summary of Cairns’s and Kymlicka’s thinking. Cairns (2002) describes an arrangement called “Citizens Plus.” Judging from Turner’s description, Citizens Plus sounds like the 1969 White Paper with an added, undefined dimension that would respond in some way to Aboriginal issues. If that seems vague, it is because Cairns left it so, or because Turner does not adequately describe Cairns.

Cairns discusses the Iroquoian Two Row Wampum as he criticizes the notion that there can be parallel development between indigenous and non-indigenous peoples. The Two Row Wampum was a real artifact, commonly characterized as a belt, with two parallel lines that was used when the Iroquois concluded treaties with the Europeans. The device became a metaphor for relations between cultures. Cairns argues that the Iroquois idea would not work in a Canada where cultures are not parallel, but interdependent. Turner argues that Cairns misunderstands and misinterprets the principles of respect, peace, and friendship that allowed the principles of the Two Row Wampum to work.

Kymlicka (1989; 1995), applying the ideas of theorists such as John Rawls, argues for recognition of Aboriginal rights as a special class within the category of minority rights. Turner summarizes Kymlicka: “Because culture is a primary good for all individuals, governments ought to preserve the integrity of the plurality of cultures from which individuals make their choices” (p.62). It follows that Aboriginal peoples are entitled to protection of their cultures.

In response, Turner notes that Kymlicka’s purpose is to promote the well-being of a single Canada: the recognition of Aboriginal cultures is part of the balance intended to benefit all Canadian cultures. Kymlicka sees the Aboriginal peoples as part of a single Canada, a premise that Turner does not accept. Kymlicka sees the balance as yielding a just result, but Turner asserts that this balancing never should occur, because the Aboriginal peoples do not necessarily consent to having their rights placed on the scale with those of other minorities.

The last two chapters begin Turner’s search for a solution that has an Aboriginal source. He writes, “It is common knowledge in many indigenous communities that for a boy to become a man he must have a vision” (p.88). Turner applies this knowledge to the Aboriginal people as a whole. “Aboriginal intellectuals must develop a community of practitioners within the [*318] existing dominant legal and political intellectual communities, while remaining an essential part of a thriving indigenous intellectual community” (p.90).

The people who will do this are the word warriors, who will struggle with language:

An Aboriginal mediator – a word warrior—is an indigenous person who engages the imposed legal and political discourse of the state guided by the belief that the knowledge and skills to be gained by engaging in such discourses are necessary for the survival of all indigenous peoples. (p.92)

In Turner’s call for word warriors, one hears an echo of the Harlem Renaissance and the Talented Tenth. The Talented Tenth sought, through arts and letters, to establish a distinctly black identity even within the goal of social acceptance.

The final chapter describes the task of indigenous philosophers. Turner finds three “indigenous projects.” The first is the preservation of Aboriginal philosophy itself, which he calls “‘indigenous philosophy’ proper” (p.99). The second involves applying European philosophy as an indigenous person, to find a place for indigenous philosophy within European philosophy, next to Kant and Hegel. Finally, indigenous philosophers challenge European philosophers. This final project investigates “the meaning of colonialism [as] a central activity of an indigenous intellectual community” (p.101). Turner is aware of the complexity of these projects, and the final chapter examines the possibilities of meeting that challenge.

THIS IS NOT A PEACE PIPE left me wanting to know what Turner thinks about the substance of an indigenous philosophy, after the word warriors and indigenous philosophers have begun their work. The content of indigenous ways of thinking is important. What areas of philosophy will it cover? Does Turner refer only to the cultural differences for rules of how people deal with each other? These are the rules of child rearing, marriage, responses to crime, the ability to own plots of land, and so forth.

But does Turner see an extension [*319] of indigenous ways of thinking to the physical world and mathematics? Does he mean that in indigenous ways of thinking, the parallel postulate might say that parallel lines meet at some point, or that the orbits of the planets might not be an ellipse? If so, Turner is proposing an enormous philosophical project, and these ideas do not lend themselves well to dialogues between cultures.

The specific content of indigenous ways of thinking is important because it stands at the center of the human rights that Turner seeks to defend. If the focus on the individual, and concerns for freedom and equality, are objectionable liberal ideas, how would Turner respond? Would he allow something to be substituted in the place of those ideas? If so, what?

I cannot close a review of THIS IS NOT A PEACE PIPE without a compliment to Turner’s directness. With the exception of a few scattered phrases, the book is entirely free of social science jargon. Turner avoids declarations that some canonical text transgresses the hermeneutics of the hierarchies and, dear reader, you can fill in the rest. The book is readable.

Turner has taken what could have been a narrow analysis of Canadian issues and given it a broader application to indigenous cultures worldwide.

REFERENCES:
Cairns Allan. 2002. CITIZENS PLUS: ABORIGINAL PEOPLES AND THE CANADIAN STATE. Vancouver: UBC Press.

Kymlicka, Will. 1989. LIBERALISM, COMMUNITY AND CULTURE. New York: Oxford University Press.

Kymlicka, Will. 1995. MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS. New York: Oxford University Press.

Vasil, Raj. 2000. BICULTURALISM: RECONCILING AOTEAROA WITH NEW ZEALAND (revised edition). Wellington: Victoria University of Wellington, Institute of Policy Studies.

© Copyright 2006 by the author, Mark Andrews.

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THE JUDICIALIZATION OF POLITICS IN LATIN AMERICA

by Rachel Sieder, Line Schjolden, and Alan Angell (eds.). New York: Palgrave MacMillan, 2005. 320pp. Hardcover. $69.95 / £40. ISBN: 1-4039-7086-6.

Reviewed by Matthew M. Taylor, Department of Political Science, University of São Paulo. Email: taylormm [at] uol.com.br

pp.309-314

The worldwide phenomenon of the ‘judicialization of politics’ is a fashionable topic, and as this book proves, contemporary Latin America is no exception. Institutional reforms, magistrates’ newly discovered power in the wake of democratic transitions, changing social attitudes, and widespread popular demand for judicial services have transformed judges and tribunals into potentially influential actors in regional politics. By reinterpreting existing law, or more effectively applying and enforcing existing rights, courts may have a significant effect on policy choices and governance, and as a result, on the scope and depth of democratization in the region. While it is not clear that all courts are gaining in real power, or that increased power will always produce positive regime effects, there is little doubt that the judiciary’s role is potentially much greater and its use much broader than before the cobwebs of authoritarian rule were pulled back across much of the region. But the distance between potential and real judicial influence is great, and our understanding of how the empirical contours of judicialization in Latin America conform to theory has remained largely speculative.

Enter this collection of essays by many of the regional pioneers of the field. The volume is a useful complement to other recent cross-national studies of the political role of courts in Latin America (e.g., Gloppen et al. 2004; Mainwaring and Welna 2003), and in fact relies on a few of the same contributors. It is organized in country chapters covering the region’s seven largest nations, as well as relative outlier Costa Rica, which despite its tiny size provides a valuable case study of high judicial impact. The essays are complemented by intriguing topical studies, as well as by a thought-provoking introduction by the editors and a brief but theoretically stimulating afterword by Guillermo O’Donnell.

The volume’s organization is both a weakness and a strength. As is often the case with edited volumes, the chapters are discrete pieces, both empirically and methodologically. This prevents the book from realizing its considerable potential for offering innovative cross-national theory. It also means the editors’ exhortation in the book’s introduction for an “initial attempt to explore a comparative framework” of judicialization rings hollow. The absence of a conclusion that explicitly draws the comparative lessons from the sum of the essays is particularly conspicuous. Nonetheless, the introductory chapter lays out a dense and rich research agenda for study, advocating the comparative analysis of institutional features, legal culture, legal mobilization, access to justice, [*310] transnational dimensions of judicialization, and the role of the judiciary in the national political system as a whole.

The subsequent chapters then explore in comprehensive detail various facets of this complex research agenda, thus serving as important reference works on the most important elements of judicialization in each of the given countries. Empirically, the essays depict a considerable range of intensity in judicialization across countries, as well as distinct levels of court impact, varying from high policy impact in Colombia, Costa Rica and Brazil, to various shades of ineffectiveness – albeit for widely different reasons – in Argentina, Chile and Venezuela. Methodologically, the authors rely on a broad range of approaches for analyzing the considerable diversity of patterns of judicialization in the region, ranging from quantitative analysis of the use of the discourse of rights in Argentina (Smulovitz), through more traditional case studies of important legal cases brought by both the opposition and the Chávez government in Venezuela (Perdomo), to a predominantly institutional analysis of Brazil’s courts in light of the rigid “constitutionalization” of politics in that country (Arantes). Despite these differences, and although each author draws on a distinct literature, the repeat appearance of Cappelletti (1989), Epp (1998), and Merryman (1985) among the cited references – coupled with the complete absence of authors such as Clayton and Gillman (1999), Ginsburg and Kagan (2005), Knight and Epstein (1996), or Segal and Spaeth (1993) – suggest that the framing of the theoretical debate over judges’ impact on policy is quite different in Latin America than in the U.S. or Europe. Despite a few studies of judges’ behavior (e.g., Helmke 2005), the study of Latin American courts (and this volume is no exception) remains focused not on how judges and courts actually reach decisions that impact politics, but primarily on whether they do and, to a far less systematized extent, to what effect.

The volume perhaps makes its greatest contribution to the judicialization literature by explicitly recognizing that there may be many patterns by which judicialization takes place. In addition to the typical “top-down” approach by which judges, and particularly high court judges, propel judicialization forward through constitutional review, many of the most creative ideas in the volume explore patterns of the judicialization “from below” or “from abroad.” Although this view has its problems – at several points this reviewer became apprehensive that the concept of judicialization might be watered down beyond recognition – the authors are very creative in showing how such patterns represent an important element of judicialization in the Latin American case. Without wishing to withhold merit from the many other excellent country studies, which will surely become ready references for area scholars, three of the contributions serve as good illustration of this point.

Faundez’s chapter on Peru suggests a particularly Latin American variant of judicialization, through the extension of legal procedure to areas in which formal [*311] legal institutions do not or can not reach. Faundez investigates community justice institutions that operate parallel to the state, in an informal fashion that may be “far from the ideal model of liberal legality” but that serves an essential and unfulfilled need at the local level. The subsequent incorporation of these forms of community justice into national justice systems may have unsavory implications – including the weakening of formal court systems – but it may be the only possible solution for the state. Judicialization, in other words, is not always and everywhere the outcome of an advanced bureaucracy or a “top-down” process of judicialization by elites and courts; it may well be the result of community institutions that arise because of a long history of citizen exclusion from formal legal systems by language barriers, high costs, and deep distrust of the state.

Macaulay’s essay on the judicialization of spousal abuse – a further example of judicialization “from below” – emphasizes the unintended consequences of efforts by women’s groups in Brazil to create a legal framework that would strengthen sanctions against domestic violence. The absorption of these proposals by the state distorted their intent, with unintended, perverse effects that reduced the gravity of punishment and led to the adoption of forms of conflict resolution (such as conciliation) which tended to place the burden on the abused. The clear implication of this essay is that greater emphasis needs to be given to comparing idealistic hopes of judicial impact with real-world practical outcomes, and to analyzing the effects of institutional design on the concrete, tangible outcomes of increasing recourse to the courts as a policy tool.

Regarding judicialization “from abroad,” Sikkink emphasizes the effect of both domestic and foreign opportunity structures on the differing levels of judicialization of human rights offenses in Argentina, Chile, and Uruguay. She concludes intriguingly that the Argentine case illustrates that “political opportunities are not only perceived and taken advantage of, but they are also created by social actors.” The dynamic Argentine human rights movement was able to exploit both domestic and international opportunity structures, in particular by creating “insider-outsider coalitions,” that put pressure on politicians at home by increasing pressure on them abroad, either by pushing forward embarrassing extradition cases or by pressing foreign leaders to make public demands on domestic politicians.

Like much of the regional judicialization literature, this volume raises as many questions as it answers about the ramifications of increasing recourse to courts and legal mechanisms. Three questions in particular are still pending in the literature on Latin American courts: does the judicialization of policy in fact have a clear, discernible and predictable effect on broader policy outcomes; does judicialization imply a greater politicization of courts; and what will increasing judicialization mean for democratization?

Judicialization may in fact be taking place to great fanfare, but with little [*312] practical effect. Couso’s chapter on Chile is a reminder that greater recourse to the courts does not necessarily translate into an increasingly important judicial impact, since judges may be naturally reticent, by either professional training or internal hierarchy, to challenge policy. Furthermore, in countries like Brazil, weak forms of binding precedent – combined with diffuse controls whereby many judges can potentially offer relief – mean that high court decisions can often be safely bypassed by lower court judges, leading to multiple and often contradictory judicial effects on policy. But even bold and binding judicial decisions may be weakly implemented: as Kapiszewski (2006) has noted in regard to Argentina, even politically significant decisions may be watered down by a failure of compliance. An ongoing question for judicial scholars as they think about the policy ramifications of their research, then, is what factors provide the “glue” between these three important elements of judicialization: greater recourse to the courts, active courts willing and able to issue uniform and bold decisions, and executive compliance with court-mandated policy reversals?

A related issue relates to the flip side of judicialization – the politicization of the judiciary. Politicization has always and everywhere been the understudied sister of judicialization, despite the obvious link between increasing use of the courts in policy disputes and political battles over control of the courts. Two arguments are intermittently advanced throughout many of the contributions to this volume: first, that the legal system’s failure to meet public expectations will undoubtedly lead to disenchantment, and second, that courts may be threatened by their own decisions, even if these are taken without deliberate political motivation. This last point is significant: courts’ decisions may often be driven by factors that have little to do with judges’ choices themselves, and more to do with who has access to what types of legal instruments. While one intriguing aspect of judicialization has been the opportunity it offers previously marginalized groups to press their claims – Wilson’s chapter offers the vivid example of AIDs victims, trade unions and homosexuals as court-empowered groups in Costa Rica – the persistence of long-standing patterns of privileged forms of legal representation, the extension of these patterns into newly empowered courts, and their effects on courts’ democratic legitimacy seems especially worth investigating more deeply in the Latin American case.

Finally, the essays here raise a host of provocative new questions about the significance of judicialization in a region that has long been considered idiosyncratic along other dimensions of politics, given historical patterns of persistent informality, pervasive inequality, weak institutionalization, and strong executive dominance. As O’Donnell’s epilogue points out, not all forms of the judicialization of politics are bad for democracy. But judicialization seems to wield at least three potential threats to weak democracies: politicization may threaten judicial legitimacy just when it is most needed; judicialization may privilege some groups over others, in ways that reinforce rather than diminish existing [*313] socio-economic inequalities; and the judicialization of politics may crowd out other forms of judicial activity, such as ordinary dispute resolution, that may be equally important to the long-term success of democratic polities.

In sum, this is yet another fine and thought-provoking contribution from the University of London’s Institute for the Study of the Americas, which has paid considerable attention and devoted great resources to research on courts and judicialization in the region’s new democracies. It will undoubtedly serve as an important complement to the broader global literature on the role of courts in politics, offering an important regional perspective on the process of judicialization in transitioning democracies. The questions posed here provide a rich research agenda for further comparative work, as well as a valuable empirical contribution to our understanding of judicialization in an idiosyncratic region.

REFERENCES:
Cappelletti, Mauro. 1989. THE JUDICIAL PROCESS IN COMPARATIVE PERSPECTIVE. Oxford: Clarendon.

Clayton, Cornell W. and Howard Gillman. 1999. SUPREME COURT DECISION-MAKING: NEW INSTITUTIONAL APPROACHES. Chicago: University of Chicago Press.

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

Ginsburg, Tom and Robert A. Kagan. 2005. INSTITUTIONS AND PUBLIC LAW: COMPARATIVE APPROACHES. New York: Peter Lang.

Gloppen, Siri, Robert Gargarella, and Elin Skaar. 2004. DEMOCRATIZATION AND THE JUDICIARY: THE ACCOUNTABILITY FUNCTION OF COURTS IN NEW DEMOCRACIES. London: Frank Cass Publishers.

Helmke, Gretchen. 2005. COURTS UNDER CONSTRAINTS: JUDGES, GENERALS, AND PRESIDENTS IN ARGENTINA. Cambridge: Cambridge University Press.

Kapiszewski, Diana. 2006. “Distributing the Costs of Crisis and Reform: The Supreme Court and Macroeconomic Policy in Post-Transition Argentina.” Paper presented at the XXVI Congress of the Latin American Studies Association. San Juan: Puerto Rico, March 2006.

Knight, Jack and Lee Epstein. 1996. “On the Struggle for Judicial Supremacy.” 30 LAW & SOCIETY REVIEW 87-120.

Mainwaring, Scott and Christopher Welna. 2003. DEMOCRATIC ACCOUNTABILITY IN LATIN AMERICA. Oxford: Oxford University Press. [*314]

Merryman, John Henry. 1985. THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA. 2nd ed. Stanford: Stanford University Press.

Segal, Jeffrey A. and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. New York: Cambridge University Press.

Tate, C. Neal and Torbjörn Vallinder. 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University Press.

© Copyright 2006 by the author, Matthew M. Taylor.

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LEGAL & ETHICAL ASPECTS OF HEALTHCARE

by Sheila A.M. McLean and John Kenyon Mason. London and San Francisco: Cambridge University Press, 2003. 264pp. Paperback. £24.99/$45.00. ISBN: 1841101281.

Reviewed by Katharine Van Tassel, Professor of Law, Western New England College School of Law. E-mail:kvantassel [at] law.wnec.edu.

pp.306-308

The modern face of medicine reflects a prodigious and growing range of treatment options. Paralleling this growth, society is witnessing an expanding acceptance of respect for patient autonomy in healthcare decision-making. While acknowledging that active patient involvement in medical management can lead to a more successful outcome, physicians can become frustrated when their advice is ignored or rejected by patients. This dynamic has created both a partnership and tension in the doctor-patient relationship. In England and Scotland, a body of law has developed which has begun to sort out the complex issues that can arise when patients, families and physicians disagree. The authors of LEGAL & ETHICAL ASPECTS OF HEALTH CARE take on the task of explaining this body of law in a way that all of the stakeholders can understand. The authors state in the Preface:

If rights are to be exercised effectively, it is important that we know what they are. If challenges are to be mounted, they should be based on firm grounds. What we attempt to do in this manuscript is to explain and discuss the way in which the law tries to ensure that these criteria are met. It will become obvious to the reader, however, that the law, of itself, is often inadequately equipped to achieve this end. We will also ask, and try to answer, some difficult ethical questions.


LEGAL & ETHICAL ASPECTS OF HEALTHCARE is a winning collaboration between two authors who merge their different areas of expertise into a captivating collection of essays. Sheila McLean is a lawyer and Director of the Institute of Law and Ethics in Medicine, School of Law, University of Glasgow. John Kenyon Mason is a physician and Professor (Emeritus) of Forensic Medicine, Edinburgh Law School, University of Edinburgh. After the introductory chapters that provide a simple guide to the legal system and an overview of the National Health Service, McLean and Mason address a broad range of subjects, including: confidentiality (Chapter 3), informed consent (Chapter 4), the right to refuse medical treatment (Chapter 5), medical negligence (Chapter 6), research on human subjects (Chapter 7), assisted reproduction (Chapter 8), genetics (Chapters 9 and 11), abortion (Chapter 10), end-of-life decision-making (Chapter 12), organ donation (Chapter 13), sex and gender (Chapter 14), mental health and capacity (Chapter 15) and, law and the elderly (Chapter 16).

Each chapter starts with an introduction to the basic medical and legal concepts necessary to understand the discussion of the issues. The unique pairing of the expertise of the authors allows them to carefully craft their lively prose to avoid medical and legal jargon, making these complex and difficult subjects [*307] understandable for the average person. The issues are outlined, explained and illustrated by a narrative of a medical conflict as played out in actual litigation. While very accessible to a general audience, the book also provides an excellent introduction for the average healthcare professional or lawyer delving into these issues for the first time. Also, members of the legal and medical profession who are well-versed in United States law will find this book to be an outstanding overview of the ways in which the medical professions and legal systems of England and Scotland address the issues. This book is not intended to be a comprehensive or academic textbook on health law or ethics, but rather as a beginning point for all parties interested in healthcare. To that end, the authors have provided a selected bibliography for each topic for further reading. Nor is this book an attempt to influence the reader on what the ethically appropriate answers are to specific dilemmas. Rather, the authors expose and elucidate differences of opinion on these issues and leave the reader to draw his or her own conclusions.

A representative essay is Chapter Eight, entitled “Assisted Reproduction,” which provides a first-class primer on British law governing reproductive medicine. In this chapter, the book outlines the social, legal and ethical issues generated by the advent of powerful, but expensive, new medical technologies to treat infertility. Before dealing with these issues, the authors first inform the reader of the incidence of infertility. Ten percent of all couples actively attempting to get pregnant experience reproductive problems. This makes infertility a significant disability in both numerical and emotional terms. The book moves on to explain the various identifiable physical causes of childlessness in both men and women. A variety of medical treatments available for infertility are then carefully described. After establishing this basic understanding, McLean and Mason assess the laws relevant to each treatment and explore some of the legal ambiguities and inequities associated with IVF, cloning, post-humous reproduction, sperm and egg donation, and surrogacy.

For instance, the book provides a startling description of one of the ways that access to in vitro fertilization (IVF) is regulated. Procreation is essential to the survival of any species. And the right to reproduce is widely accepted as a fundamental right. In most societies, the state may not prevent an individual from having children. But does this negative right to be left alone by the state translate into a positive right to medical assistance when an individual is unable to have children naturally? Does a physician have an obligation to provide assistance to anyone who asks? In England, the answer to both of these questions is an unsurprising “no.” The same is basically true in the United States. What is jarring is that, in England, where IVF may only be provided by licensed clinics, a clinic is encouraged by law to screen a woman’s (or a couple’s) suitability to receive treatment services.

[I]n deciding whether to provide treatment, clinics are advised to bear in mind such variables as the patients’ abilities to provide a stable environment for a resulting child, their medical histories, their health and age as [*308] indicators of their ability to provide for the child’s needs and the effect of the new baby on existing children.(p.105)


These factors are not considered by the state in issuing a marriage license, and the authors note that “no-one would think of imposing such conditions on natural parenthood” (p.105). This government guideline calling for reproductive screening based on medical histories is a license to discriminate based on considerations of eugenics. In addition, it appears that clinics may discriminate based on differences in moral philosophy and socio-economic standing. For example, McLean and Mason refer to the well-known case involving a woman who was formerly a prostitute and who was denied infertility services. The court found that this refusal was reasonable.

The ethical concerns raised by regulation of reproductive medicine in England serve as a chilling reminder that society cannot become complacent about ethical issues that deceptively appear to have been long-resolved. Every chapter in this book implicitly reminds the reader that these issues will continuously repeat themselves as society struggles to deal with advances in scientific knowledge of the human body and technology. For example, in Chapter 9, entitled “Genetics and Pregnancy,” the book deals with the present and future capabilities of controlling the genetic codes of our offspring. Is this a dream come true where our children can live in a disease free world? Or the nightmarish return of eugenics where wealthy parents are able to create designer babies by selecting socially desirable traits while rejecting others? What role should the principle of intergenerational justice play when viewed through the lens of the impact this technology has on the rights of the disabled? In Chapter 12, the book points to some evidence that the suicide rate is rising among the elderly in the United States. This rising rate is often linked to fears of being kept alive in spite of an unacceptable quality of life. This raises questions about very divisive end-of-life issues. Are physician-assisted suicide and withholding/withdrawing treatment in the face of medical futility moral acts to provide relief for a suffering patient, or are these acts murder? Is the principle of double effect just a form of euthanasia? In Chapter 13, entitled “Disposal of the Body and Body Parts,” the book reminds us that organ transplantation has become mired in a maze of legal and ethical controversies. The very real questions of who lives, who dies and why are tangled with more abstract questions of who owns and controls human bodies, living donors and the illegal organ trade, definitions of death, organ shortages and consent to harvest organs for donation.

In LEGAL & ETHICAL ASPECTS OF HEALTH CARE, McLean and Mason set out to educate healthcare professionals, lawyers and the general public about the scope of patients’ rights and the legal criteria that the law dictates must be met before it will support an assertion of those rights. McLean and Mason achieve this goal with flying colors by presenting the ethical and legal issues posed by a broad range of subjects simply, but without simplification.

© Copyright 2006 by the author, Katharine Van Tassel.

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CHANGING LAW: RIGHTS, REGULATION AND RECONCILIATION

by Rosemary Hunter and Mary Keyes (eds). Aldershot, UK: Ashgate, 2005. 200pp. Cloth. $99.95/£55.00. ISBN: 0 7546 2552 4.

Reviewed by Kate Hofmeyr, Balliol College, University of Oxford. Email: kate.hofmeyr [at] balliol.oxford.ac.uk

pp.303-305

In CHANGING LAW: RIGHTS, REGULATION AND RECONCILIATION, Rosemary Hunter and Mary Keyes bring together a diverse set of essays broadly connected with the book’s central concern: change. As the editors themselves note, the brief to address the theme of ‘Changing Law’ generated a set of essays of ‘astonishing’ variety, including the relevance of human rights, implications for security of decentralised governance, challenges facing law reform, minority issues, and changes in knowledge production in the legal academy.

In their own right, each essay provides an insightful contribution to its field. In the first section, entitled “Changing States, Changing Rights,” Costas Douzinas, David Saunders and Clifford Shearing grapple, in different ways, with the changing role of the state. The first two essays analyse the role of the state as protector of human rights, with Douzinas offering a skeptical view of human rights’ invocations by states, and Saunders seeking historical support for a view of the state as a protector of security for its citizens. The third essay in the section deals with the increasing fragmentation of governance within the state and the role of private service providers, particularly in the security sector, as participants in a new regime of “nodal governance.” All three essays tackle issues relating to security: security from the state, security by the state, and security within the state. In a time when the limit to what can be justified in the name of security is an open-question, these essays provide interesting perspectives on the role and responsibility of the state as a rights’ protector.

The second section focuses on the changes experienced by law reform bodies and universities. While Richard Collier deals with the effects of globalisation on both the institution itself and its workers, Erica McWilliams addresses the effects of performance-based judgments and accountability on the academic individual. Both authors sound a note of caution regarding the impact of higher education reform. For Collier, the main concerns are the strains which vocationalism and globalisation place on curricula and the diminishing capacity for critical socio-legal scholarship brought about by the declining interest in socio-legal method. For McWilliams, it is the time consumed in carrying out the tasks of self-management which poses a threat to critical socio-legal scholarship.

In the first essay in the section, Reg Graycar reviews the relevance of permanent institutional law reform bodies, with a particular focus on Australia. Graycar’s central concern is to determine whether the law reform [*304] structures and processes which are currently used in Australia facilitate law and the legal system’s capacity to respond to change. In the course of that inquiry, Graycar points to three case studies to highlight the persistent myths and stereotypes which impede the development of effective and responsive legal strategies in the law reform arena. This ineffectiveness makes Graycar generally skeptical about the capacity of law to address some of the most persistent and pernicious social problems.

The final section is entitled “Achieving Justice.” Here the three authors address the claims of marginalised groups who have tended to be the subjects of socially-engaged law reform initiatives and critical legal scholarship. Moreton-Robinson’s essay deals with the doctrine of terra nullius and the role it has played in maintaining Indigenous dispossession and legitimising white sovereignty. She highlights the respects in which the law, by relying on white referents in formulating norms that become the criteria of legal decisions, adopts a purportedly neutral, but in fact normatively skewed baseline for its analysis of matters involving Indigenous claims. While Behrendt continues this theme and remains generally skeptical about the role of law as a source of justice for Indigenous Australians, she encourages us not to loose all faith in the capacity of a rights’ framework to guide Indigenous policy development. According to Behrendt, a rights’ framework has the advantages of both providing a language through which to convey political aspirations and emphasising the need for long-term policy determinations rather than short-term remedies. In order to be effective, though, it must be buttressed by an inclusive approach to consultation and determination to understand the nature and implications of rights that Indigenous communities seek to have protected.

In the third essay in the section, Durbach considers the law’s effectiveness as a vehicle for social justice, but she also focuses on the responsibility of lawyers and legal educators to be conscientious participants in the legal system and advocates of a rights-oriented approach to the law. Her chief concern relates to the present process of rights erosion in Australia and the trumping of self-interest over common ideals and values. Her call is one which should resonate with all those readers who fear the increasing sacrifice of rights in the name of security: the need for fieldtrips to the Republic of Conscience (Heaney, 1998) is not simply a national, but a global, concern.

This brief summary of the essays contained in this collection should give one a sense of the eclectic mix of themes and concerns taken up by the authors. Although the editors highlight the fact that the authors would not necessarily agree with each other on a number of issues, they seek to highlight the continuities between the various essays. They identify three organising principles: states, institutions and justice, into which each of the essays is slotted. Although, in broad terms, these categories work, the links between organising principles are not sufficiently explained. Moreover, the lack of cross-[*305]referencing between essays limits the cohesion of the collection. In a deliberately interdisciplinary book, it is unfortunate that the focus of the collection is not more constrained. Although each essay provides novel insights into the issues explored, one is left with the sense that if the variety of perspectives were dealing with a topic of narrower scope than “changing law,” more may have been gained from the interdisciplinary approach.

REFERENCES:
Heaney, Seamus. 1998. “From the Republic of Conscience.” in OPENED GROUND: SELECTED POEMS 1966-1996. London: Faber and Faber.

© Copyright 2006 by the author, Kate Hofmeyr.

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