CONSTITUTIONAL LAW AND NATIONAL PLURALISM

by Stephen Tierney. Oxford and New York: Oxford University Press, 2004. 392pp. Hardcover. £60.00/$140.00. ISBN: 0199265569. Paperback (2006). £24.99/$49.95. ISBN: 0199298610.

Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza, garruego [at] unizar.es.

pp.649-652

CONSTITUTIONAL LAW AND NATIONAL PLURALISM addresses the nature of the plurinational State from the perspective of Constitutional Law theory. As Stephen Tierney stresses in the preface of his book, though the emergence of sub-state nationalism in liberal democracies has been studied at length since the 1960s, this has been done mainly, not by Constitutional lawyers but by sociologists, political scientists and political philosophers, who have analyzed issues such as the origins and dynamics of the national identities, the impact of the awakening of the national feeling in terms of electoral behavior and political party systems, and normative questions concerning the rights claimed by sub-state national groups. In this sense, Tierney argues that “constitutional lawyers and legal theorists have rarely addressed the sociological reality of the plurinational State as a subject worthy of discrete study” (p.viii).

Departing from the work done from these other social science perspectives, the main goal of the book is to provide a new Constitutional Law framework in order to analyze the plurinational State, overcoming the alleged limitations and obsolescence of the traditional dichotomies provided by Constitutional theory (federal-unitary, nation-region, sovereign-subordinate, Law-politics). In this sense, one of the main claims of the book is that the plurinational State is a “discrete category of multilevel polity” characterized by the presence of more than one national group and defying the traditional and standard conceptual framework of liberal constitutionalism. This is the reason why Tierney “argues for a new approach to Constitutionalism, a new suit of clothes which will better fit the deep and real territorial pluralism of our time . . . If this book has a central purpose, it is to explore the possibilities of re-imagining traditional approaches to liberal constitutionalism in order to provide a better alignment between the discipline of Constitutional Law and the needs of the plurinational State today” (p.viii).

Focusing on the cases of Catalonia (Spain), Quebec (Canada) and Scotland (United Kingdom), Tierney examines the challenge posed by sub-state national societies, not only to the constitutional structures of their respective host States, but to the fundamental normative precepts that inform contemporary constitutional theory. The election of these case studies finds its justification in four different reasons: (a) the three of them constitute sub-state national societies with strong and distinctive national identities; (b) in recent decades strong nationalist movements have mobilized within them; (c) though they [*650] already enjoy a very high degree of political autonomy, there still remains “a strong political impetus for further constitutional development” within them; and (d) they belong to very different constitutional systems, though all of them are constitutional liberal democracies.

Within this framework, one of the main conclusions of the book is that the plurinational State is a viable and valuable model of polity. Tierney argues that in the same way as the State is required to reconsider the reality of its autonomy (sovereignty) in a world of economic interdependence and globalization and increasingly powerful international organizations, sub-state nationalists “are also obliged to rethink whether terms such as ‘sovereignty’ and ‘independence’ are in fact losing their purchase” (p.18). In this context, one of the main ideas of the book is that the plurinational State is potentially an ideal constitutional model for the sub-state national society: “the combination of autonomy and representation or inclusion . . . reflects the deep ambivalence within sub-state national societies which want to step out independently into the global sun while appreciating the political and legal security offered by inclusion in a larger State” (p.19).

In this sense, the first of the two parts into which the book is divided, provides a series of normative principles which, according to Tierney, should inform the debate over the better constitutional accommodation of the sub-state national societies within the plurinational State. These are the principles of:

a) Self-determination, as each demos within the State possesses a qualified right to determine its own constitutional future, which, in the context of the book, does not necessarily mean secession, but “that [the] national status [of the sub-state national society] should be reflected in extensive autonomy.”

b) Representation, which calls for the accommodation of the plurinational nature of the State through full representation of sub-state national societies as “constitutional coequals with the host state national society at the heart of the state, both in the processes by which the Constitution is amended and in the operation of the central organs of governance, including the legislature and the judiciary” (p.126). In the author’s view, recognition of the constitutional role of sub-state national societies as coequals should preserve distinctive nature of the state—in other words, in an asymmetric way with regard to any other sub-state national societies or regions.

c) Recognition, which calls for the reflection of the plurinational nature of the State in the overall “spirit” of the Constitution.

d) Reciprocity, which reminds the sub-state national society that it owes duties both to the host State national society and to any other sub-state national society. This includes, for example, reciprocally recognizing the national status of any other of these societies, to work in good faith to consolidate the State as a common polity or to fully respect the rights and interests of all citizens within the State. [*651]

e) Democracy, which means that seeking constitutional accommodation is only legitimate if it is effected by the members of the group acting democratically. Therefore, “new constitutional models of autonomy, representation and recognition of sub-state national societies, besides requiring the agreement of the host state, are in normative terms wholly contingent upon the subjective will of members of the sub-state national society to bring about such change” (p.127).

In addition to these principles, Tierney considers that there are four relevant issues both in practical and normative terms to the question of constitutional accommodation. These are (a) the issue of cultural pluralism, which stresses the importance of inclusiveness and respect for diversity, (b) the issue of fluid identity patterns, which highlights the open nature of the patterns of identity, (c) the issue of host State societal dominance, according to which plurinational liberal States lack societal neutrality (which, among others, means the existence of a dominant society within the State), and (d) the issue of dispersed governance, reflecting the changing role of the Nation State in the age of globalization. With regard to sub-state national societies, particularly in Europe, absolutist constitutional options like independence or secession become “increasingly redundant” in a context of State interdependence.

As noted above, the book is structured in two parts. Part One includes four chapters, focusing on the theoretical approaches to national pluralism, and Part Two (Chapters Five to Nine), deals with the constitutional accommodation of the three case studies, Catalonia, Quebec and Scotland.

Chapter Two addresses liberal nationalist theories according to which sub-state national societies constitute a distinct category different from both the dominant national society and other minority groups, but they are also entitled to distinctive constitutional accommodation within their host State, due to their historical and societal particularities and the dissatisfaction felt with their current institutional arrangements. Chapter Three takes this argument further, asserting that sub-state national societies perform important identification and functional roles for the individual member in a democratic plurinational society and refutes the negative visions provided by some social scientists of sub-state nationalism as atavistic and revanchist. Tierney argues that no State is neutral in cultural and societal terms, but also that “it is in fact partly as a consequence of the often oppressive or at least marginalizing, influence of the dominant, statal national identity [sic] that sub-state groups feel the need to seek enhanced recognition and autonomy” (p.47). Part One ends with an analysis of the current challenges faced by Nation States and how sub-states’ national demands have to be located within that context of global political and legal changes.

Chapter Five opens the second part of the book with an analysis of the constitutional amendment processes in Spain, Canada and the United Kingdom. These processes are examined in terms of two sets of relationships: the [*652] relationship between the sub-state national society and the host State, which “recalls the principles of self-determination, representation, recognition and reciprocity,” and the interaction of the Government and the citizens, which recalls the principle of democracy. Chapter Six then moves to the study of the substantive constitutional status of the three sub-state national societies through the perspective provided by the principles of autonomy, representation and recognition.

Once the constitutional status of Catalonia, Quebec and Scotland, and the procedures to amend the Constitutions of Spain, Canada and the UK in order to fully accommodate the three sub-state national societies have been analyzed, Chapter Seven focuses on the role played by courts in the three national systems. Though the main issue in the chapter is assessment of the decision taken by the Supreme Court of Canada in the Quebec Secession Reference, Tierney also focuses on the role played by the Spanish Constitutional Court with regard to the autonomous communities system, mainly by examining the constitutional disputes provoked by the Organic Law for the Harmonization of the Process of Self-Government (LOAPA), and the situation in the UK. Finally, Chapter Eight examines the recent use of referenda in the management of host-state sub-state relations, and Chapter Nine gives a final overview of the different issues analyzed in the book.

In general terms, but especially in the first part of the book, the reader may find Tierney’s argumentation is too linear, even Manichaean, and requiring further explanation. This is especially evident with some of the central theoretical ideas of the book. For example, Tierney contends that the democratic constitutional liberal State lacks neutrality with regard to sub-state national societies; thus there exists a dominant host-state society with an “oppressive or at least marginalizing” attitude towards sub-state national societies. This argument is not well developed and needs much more supporting evidence.

Problems increase when the reader moves to the second part of the book, where there are a number of factual errors. For example, Tierney’s consideration of the Spanish constitutional system has a number of problems. For example, he describes the eventual constitutional conflicts between the Spanish State and the Autonomous Community of Catalonia, as conflicts between “Madrid and Catalonia;” he considers the process of elaboration of the Statutes of Autonomy in terms of constitutional reform; and, contrary to what Article 152 of the Spanish Constitution prescribes, he asserts that the amendment process of all Statutes of Autonomy is subject to popular referendum.

© Copyright 2006 by the author, Gonzalo Arruego.

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THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE

by Mary Sarah Bilder. Cambridge, MA: Harvard University Press, 2004. 308pp. Hardcover. $52.50/£33.95/€48.40. ISBN: 0674015126.

Reviewed by: W. Wesley Pue, Nathan T. Nemetz Chair in Legal History, University of British Columbia. Email: wpue [at] interchange.ubc.ca.

pp.645-648

Interesting and informative in equal measure, Mary Sarah Bilder’s TRANSATLANTIC CONSTITUTION explains how constitutionalism worked in colonial America. This will surprise and fascinate readers who imagine that the notions of “constitution” and Empire are mutually exclusive. Even those familiar with the ways of the British Empire will, however, learn much from Bilder’s fine-grained exploration of Imperial Constitutionalism.

The book’s focus is an extended “conversation” between Rhode Island colonists and London officials over a period of a century and one-half of extraordinary transitions. The book covers the years from the first Rhode Island Charter (1644) to the early American republic. The original colonial Charter and its post-Restoration replacement (1663) required conformation with the laws of England unless circumstances peculiar to the colony required divergence. The 1663 wording required that Rhode Island’s constitution, ordinances, and laws were to be “not contrary and repugnant unto, but as near as may be, agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there” (quoted at p.41). Bilder argues that the essence of the “transatlantic constitution” is to be found in the processes negotiating the spaces between legitimate divergence and repugnancy. With this as her frame of reference, she diligently traces the contours of the constitution as it was lived over time.

The essential “Englishness” of early Americans is a strong theme that emerges throughout the book. This will not surprise specialists in colonial history, but the book illuminates the theme well. An essential starting point – which could have been lost sight of – is Bilder’s recognition that variance between “common” law and local custom was no colonial innovation. The tension was, indeed, the essence of English homeland constitutionalism. The question of the extent to which an English colony might properly diverge from English law is properly understood as part of a larger tale of transformations in the understanding of law and, indeed, of England itself. Bilder explains that, simultaneously with North American colonization, the English were adapting their views of law from arrangements primarily “suited for local circumstances” to something “signifying national uniformity.” In the result, “the colonial relationship evolved along with the English political state” (p.35). Bilder evocatively describes Coke’s 1628 INSTITUTES, for example, as marking the transformation of “a geographically defined nation into a legally defined one” (p.33). The imposition of a single “English” law was innovative in [*646] England itself, and more so when imposed on Ireland, Wales, the Channel Islands and the Isle of Man. Even as such centralizing processes played themselves out within the British Isles, however, the logic of local divergence and local adaptation provided a persuasive source of local resistance in many cases (pp.34-35). Across the sea, Rhode Island attorney William Morris understood arguments about divergence and repugnancy as part of English domestic law. He was informed in part by Lambarde’s PERAMBULATION ON KENT, “which described the legitimacy of local custom in English law and linked Kent’s divergence . . . to the history of the county’s people, land, and legal institutions” (p.42). The meanings of Englishness were, to some significant extent, negotiated amongst the English on both sides of the Atlantic (p.145).

Understanding this very English base-line is important to a proper appreciation of the cultures of colonial constitutionalism, and Bilder is to be commended for taking the task to heart. Though explicit discussion of the Englishness, the transition from customary to common law, the notion of the “equity of the statute,” and such-like are limited to a few pages, the informing sensibility suffuses the entire work. The relations amongst peoples and institutions on both sides of the Atlantic, all of, though not all in England is a powerful theme (and one which has registered significantly in other places and other times, notably the works of Michael J. Thoms (2004) and Douglas Harris (2001)). There is certainly more to be made of this insight, but Bilder makes a significant contribution that deserves to be read by colonial and post-colonial historians everywhere, not just in the deviant colonies that became the United States of America.

Bilder traces the evolving contours of the transatlantic constitution – too often rather superficially and glibly understood by others as having to do only with “reception” statutes and dates – through a magnificent unpacking of its inner workings. Her raw materials include diverse sources located on both sides of the Atlantic, encompassing lawyers’ papers, public archives, litigation records, records of parliamentary practices, and so on. The book is divided into three parts. Part I, “The Transatlantic Legal World,” includes chapters on “Legal Practitioners and Legal Literates,” “The Laws of England,” and “The Laws of Rhode Island.” Much of the base-line is established here, while the dynamic evolution of the transatlantic English constitution is revealed in Parts II and III. These are, respectively, headed “Transatlantic Legal Practice” and “Visions of the Transatlantic Constitution.” Part II includes chapters on “The Transatlantic Appeal,” “Women, Family, Property,” and “Personnel and Practices,” while Part III deals with “Religious Establishment and Orthodoxy,” Commerce and Currency,” and “The Transatlantic Constitution and the Nation.”

There is much more in this splendid, short, book than can be properly acknowledged within the space of a book review. The issues at the centre of Rhode Island’s transatlantic [*647] constitutionalism evolved over time from contests focused on uniformity or divergence in property law (hence, inheritance, and gender relations) during the years up to the 1730s, to negotiation of religious freedom and questions concerning uniformity of commercial laws or currency regulation thereafter. For the most part, there was little contest over constitutional fundamentals, but much focus on the meaning of agreed principles in particular contexts. In the chapter on “Women, Family, Property,” for example, we are told that, because “transatlantic jurisprudence did not offer a certain answer as to when English law applied . . . Rhode Islanders picked their way among the laws of England and Rhode Island” (p.103). The many sources of English law provided a “buffet from which colonial attorneys could select the arguments necessary to bring, win, and defend cases for individual litigants” (p.115).

By the end of the eighteenth century, of course, things were somewhat less civil, less consensual, and less polite. Like a “B” movie, everyone knows the end point of “colonial America” before they get there: Boston’s wharf-side charivari and the rest of the “Revolution” loom, ever-present, in the background. None of the lead-up to revolution is much discussed in Bilder’s work, no doubt for the very good reason that this particular terrain has been well-mapped.

The concluding chapter is dedicated to showing what good “Brits” the rebellious “Americans” were (and what faithful seed of Albion their descendents have become). This short chapter offers many insightful comments on state constitutions, judicial review, and the character of the USA constitution. The enduring impact of the “transatlantic constitution” is well captured in Bilder’s concluding chapter:

Although the formal structure of the transatlantic constitution ended in 1776, its legal arguments and cultural practices continued to influence the American nation. Transatlantic legal culture had been like an enormous American chestnut tree that had permanently affected the development of all in its shade. Erasing this legal culture proved more difficult than repealing the appeals law and excising the king’s name from the charter. The legal culture of the colonies had grown to maturity as part of a conversation about when the laws of England applied and when local laws and practices could diverge because of the people and place. This culture came to revel in the existence and tension of dual authorities, it understood the advantages and disadvantages of having a distant decisionmaker, and linked constitutional interpretation to the changing substantive concerns of the empire. The loss of the transatlantic relationship was dramatic. Although Americans rejected the tree, they planted new saplings to cast similar shade. (p.186)

Just so.

“America,” welcome back to the British world! We’ve missed you.

REFERENCES:
Harris, Douglas. 2001. FISH, LAW AND COLONIALISM: THE LEGAL CAPTURE OF SALMON IN BRITISH COLUMBIA. Toronto: University of Toronto Press. [*648]

Lambarde, William. 1656. THE PERAMBULATION OF KENT. London: Mathew Walbanke.

Thoms, J. Michael. 2004. OJIBWA FISHING GROUNDS: A HISTORY OF ONTARIO FISHERIES LAW, SCIENCE, AND THE SPORTSMEN'S CHALLENGE TO ABORIGINAL TREATY RIGHTS, 1650-1900. [microform]. Ph.D. dissertation, History, University of British Columbia.

© Copyright 2006 by the author, W. Wesley Pue.

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AT WAR WITH CIVIL RIGHTS AND CIVIL LIBERTIES

by Thomas E. Baker and John F. Stack, Jr. (eds). Lanham, MD: Rowan & Littlefield Publishers, Inc, 2005. 272pp. Cloth $65.00. ISBN: 0-7425-3598-3. Paper. $26.95. ISBN: 0-7425-3599-1.

Reviewed by Barry N. Sweet, Department of Political Science, Sociology, and Philosophy, Clarion University of Pennsylvania. Email: BSWEET [at] clarion.edu.

pp.640-644

This collection, edited by Thomas Baker and John Stack, addresses the highly salient dilemma of maintaining our constitutional rights during a time of war. The contributions are primarily from notable constitutional scholars, but also from two key institutional players, Supreme Court Justice Stephen G. Breyer and former Attorney General John Ashcroft.

The piece by Justice Breyer is the text of a speech he gave to the New York City Bar in 2003, which was very similar to one he had delivered in Paris a few months earlier. Without showing his cards, Justice Breyer provides a very thoughtful discussion about how we can maintain our rights during the war on terrorism. He reminds us that the Constitution still applies in wartime and it requires that we balance individual and community interests. We have often made mistakes in the past when balancing these interests, but we can learn from those mistakes. Furthermore, we can avoid mistakes by learning from practices of other countries when they face the same challenges. Other countries may have developed less restrictive alternatives when facing threats to national security. He concludes by indicating that judges are not the only actors in determining our rights. In addition to legislators, the citizenry plays a role through open debates in the media, classrooms, and public forums. The fact that such a vigorous debate is taking place is indicative that the system is working. Justice Breyer’s discussion is very reassuring; he communicates faith in both our judicial and political systems.

The contribution from former Attorney General Ashcroft is the text of a speech he gave in the summer of 2003 to law enforcement officers in Boise, Idaho. Referencing Thomas Jefferson, Ashcroft argues that the first responsibility of government is to preserve the lives and liberty of its citizens. He then defends the much criticized USA PATRIOT Act, arguing that the legislation mainly brings our antiterrorism law in line with current practices in other areas of law enforcement and advancing technology. For instance, the legislation allows “sneak and peak” warrants, used previously in organized crime and drug investigations. The Patriot Act allows access to business records when conducting antiterrorism investigations. “Roving wiretaps” are permissible, recognizing that terrorists use multiple methods of communication to avoid detection. The Act also permits a lot more information sharing and cooperation between law enforcement agencies at all levels of government.

Jules Lobel provides an historical overview of the restraints placed on civil liberties and rights during times of war [*641] and emergencies. He also critiques “the war/emergency balancing metaphor.” His historical overview mentions the Alien and Sedition Act of 1798, Abraham Lincoln’s actions during the Civil War, the actions of President Wilson’s administration during World War I and Attorney General Mitchell Palmer after the war, and the internment of Japanese Americans during World War II. In all of these examples restrictions placed on civil liberties were balanced against the perceived need to deal with threats to our security. Lobel indicates three problems with how balancing is done. First, the most severe restrictions are usually placed on the liberties of aliens rather than citizens. Second, the effort to enhance short-term security fails to appreciate the effect on long-term security. Third, an assumption is frequently made that the restrictions will last only as long the war or emergency is a threat to our security. Lobel argues that the war on terror, like the Cold War, may very well be Orwellian and allows infringements on our liberties to go on in near perpetuity. He then discusses specific examples where emergency powers may have been used unreasonably since September 11. Concerns about provisions of the USA PATRIOT Act are also discussed.

The piece by Peter Irons, a critical assessment of Franklin Roosevelt’s record on civil rights and liberties, is a republished law review article written before September 11. Irons basically catalogues the failures of the Roosevelt Administration in dealing with the abridgement of civil rights and liberties. He does this by focusing on the inaction or ineffective actions of FDR’s four Attorneys General. The Roosevelt Administration failed to deal with lynching and instead appeased the Dixiecrats by emphasizing states’ rights. Labor and civil rights laws were either not enforced or only halfheartedly enforced with disappointing results. The Roosevelt Justice Department did have some success in its later years dealing with police brutality and the protection of religious minorities. The most shameful part of Roosevelt’s record was the internment of Japanese Americans. Roosevelt’s policies dealing with subversives and dissidents were also less than admirable. In fact, he utilized many techniques that sound eerily familiar today, such as warrantless wiretapping and maintaining lists of people for possible imprisonment who were perceived as a security risk. Irons concludes that Roosevelt basically had a proclivity to do what was politically expedient and expressed near contempt for civil liberties and rights.

Michael Greenberger examines a technique that the Bush Administration has been using to hold persons suspected of being connected to terrorists without probable cause. Such persons are declared material witnesses and taken into detention for indefinite periods of time. Greenberger provides the specific example of Osama Awadallah who was shuttled around the United States, starting in California, then Oklahoma, and finally New York. His lawyer and family were frequently denied access to him to such an extent they did not even know where he was at times. He was kept in a general prison population and brutalized by correction officers. The Justice Department argued that he was [*642] being held as material witness to ensure his grand jury testimony. Awadallah’s attorney contended that the material witness provision in federal law does not apply to grand jury proceedings. Using the material witness statute in this way is quite rare, with a 1971 Ninth Circuit case being the only legal precedent available. This case did support the government’s position; however, the District Court found that the statute did not apply to grand juries. In a parallel case in the Southern District of New York another judge found that the material witness statute did apply to grand juries. Both of these cases were appealed to the Second Circuit. Greenberger provides a detailed discussion of relevant statutes, federal rules of criminal procedure, and constitutional concerns. Much to Greenberger’s dismay, the Second Circuit came down on the side of the government. He concludes that it is uncivilized to hold material witnesses without probable cause in a coercive environment to obtain unreliable testimony.

Louis Fisher catalogues the expansion of executive power in the wake of 9/11 and the apparent abdication of the other branches in terms of checks and balances. Fisher provides anecdotal vignettes of Arabs and Muslims who were arrested in ill-conceived dragnets right after 9/11. Many were treated quite shabbily and held for a considerable length of time without charges being filed or even reasonable justification. Military tribunals and the Administration’s claim of authority to establish them are discussed briefly. The Administration relied upon the EX PARTE QUIRIN precedent where German saboteurs during World War II were given less than admirable due process. Despite the serious deficiencies of the QUIRIN precedent, the Administration wanted to provide even less for suspected terrorists. The HAMDAN majority, whose opinion was rendered after this book was published, found that the Administration’s military tribunals were unconstitutional. Fisher also discusses specific provisions of the USA PATRIOT Act that authorize nationwide service of search warrants, roving wiretaps, lower the threshold requirement for foreign intelligence surveillance, and “sneak and peek” warrants. Additionally, he raises serious concerns about closed deportation proceedings, concealing the identity of persons arrested, holding people as material witnesses, and classifying detainees as enemy combatants. Fisher concludes that the Department of Justice has considerable power that is further augmented during emergencies, and the attorney general must use it responsibly. It is up to Congress, the courts, the media, and ultimately the citizenry to make sure the executive stays in check.

Mark Graber contributes a piece that is counterintuitive and thought provoking. He argues that civil rights, specifically voting rights, can actually be expanded during wartime. He acknowledges that repressive policies, often dealing with speech, have been instituted in times of war and other national emergencies, but the franchise has often expanded. The three constitutional amendments that expanded voting rights, the Fifteenth, Nineteenth, and Twenty-Sixth, were all closely connected to wars. He suggests [*643] that the American Revolution and conflicts with Native Americans led to the relaxation of the property requirement and eventually to universal white male suffrage. Absentee ballots were first made available during the Civil War. The beginning of the end for poll taxes was seen during World War Two, first for troops during the war and then for veterans after the war. The Democratic white primary also met its end during World War Two. Asian and Native Americans made gains in voting rights as well during the Second World War. Graber also argues that the Cold War partially contributed to the passage of the Voting Rights Act of 1965. The US could not push for free and fair elections abroad when so many Americans were being denied access to the ballot box at home. The expansion of voting rights during wartime is not just an American phenomenon, but has happened in Britain, Belgium, Canada, and Italy. Graber is not optimistic that the War on Terror will lead to an expansion of voting rights or other civil rights because the effort has not required mass mobilization. It has generally been the need for national unity and mass participation that has expanded the franchise and other rights.

Mark Tushnet offers a more theoretical contribution to the anthology. He presents three different arguments for how war and other emergencies should be handled by American constitutional jurisprudence. The first argument is that the same constitutional standards used during non-emergencies should be applied during wartime; however, the fact that the country is at war could be determinative in the application of the standards. The second argument is that significantly different standards should be applied during wartime than are applied during peacetime. The third argument is that during wartime it is possible to justify suspending the application of the Constitution in determining the legality of governmental action. Tushnet seems to be concerned about the potential harm that might follow from precedents being set using the first two arguments. Emergency powers that are rationalized as consistent with the Constitution might become acceptable under other circumstances. He uses Robert Jackson’s dissent in KOREMATSU as an example of this. Jackson suggested that the Court had rationalized racism into the Constitution, and as a result the Court’s decision is a more serious threat to liberty than the military’s relocation order. He also indicated that the courts should not have attempted to interfere with the Army’s order, probably because such an effort would have been futile. Arguably Jackson is suggesting that the Court should have declined to hear the case. Expanding on Jackson’s reasoning, Tushnet concludes that emergencies are occasions for extraconstitutional jurisprudence when there should be a “suspension of legality.”

The final chapter consists of edited excerpts from three terrorism detention cases decided by the Supreme Court in 2004, RUMSFELD v. PADILLA, RASUL v. BUSH, and HAMDI v. RUMSFELD. The first case involves the detention of suspected dirty-bomber Jose Padilla. An American citizen, Padilla was arrested in Illinois and then held in New York. Later he was [*644] transferred to South Carolina and held in a naval brig. Padilla filed a petition for a writ of habeas corpus, but the Supreme Court dismissed it on technical grounds, namely that he had filed the petition in the wrong jurisdiction, New York rather than South Carolina, and named the wrong respondent, the Secretary of Defense rather than the commander of the naval brig in South Carolina. Justice Stevens vigorously dissented, noting the importance of assistance of counsel and the problems of incommunicado detention. The second case, RASUL v. BUSH, involves foreign nationals captured in Afghanistan and held at Guantanamo Bay, Cuba. Fourteen of the detainees filed a petition for a writ of habeas corpus. A key issue was whether the U.S. District Court for the District of Columbia had jurisdiction. Justice Stevens, writing for the majority, concluded that since the United States has “complete jurisdiction and control” over the naval base at Guantanamo Bay, the District Court had jurisdiction to consider the petition. The third case involved Yaser Hamdi, an American citizen captured in Afghanistan who was allegedly fighting for the Taliban. The United States contended that Hamdi was an enemy combatant and could be held indefinitely without being charged, given access to an attorney, or provided an opportunity to refute his status as an enemy combatant. A convoluted four-justice plurality opinion, partially supported by two additional justices, indicated that Hamdi must be given the opportunity to contest his designation and detention. This decision and the more recent HAMDAN v. RUMSFELD case provide a glimmer of hope in the effort to maintain constitutional rights during the War on Terror.

In conclusion, Baker and Stack have assembled a thoughtful collection of essays that deal with the difficulty of balancing constitutional rights and security during wartime. The selected essays provide historical background, theoretical insight, and contemporary issues. This volume would prove useful as a supplemental text in a special topics course or a course on civil rights and liberties. The collection also reminds us of the importance of an informed and vigilant citizenry.

CASE REFERENCES:
EX PARTE QUIRIN, 317 U.S. 1, 63 S.Ct. 2, 97 L.Ed. 3 (1942).

HAMDAN v. RUMSFELD, 126 S.Ct. 2749, 165 L.Ed. 2d 723 (2006).

HAMDI v. RUMSFELD, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed. 2d 578 (2004).

KOREMATSU v. UNITED STATES, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

RASUL v.BUSH, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed. 2d 548 (2004).

RUMSFELD v. PADILLA, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed. 2d 513 (2004).

© Copyright 2006 by the author, Barry N. Sweet.

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THE POLITICS OF SEXUAL HARASSMENT: A COMPARATIVE STUDY OF THE UNITED STATES, THE EUROPEAN UNION, AND GERMANY

by Kathrin S. Zippel. New York: Cambridge University Press, 2006. 274pp. Cloth $80.00/£45.00. ISBN: 0521847168. Paper $34.99/£19.99. ISBN: 0521609941. e-book format. $28.00. ISBN: 0511159099.

Reviewed by Leslie F. Goldstein, Department of Political Science and IR, University of Delaware, and Visiting Research Fellow at Fordham Law School. Email: lesl [at] UDel.Edu.

pp.633-639

In 1979 Catharine MacKinnon published SEXUAL HARASSMENT OF WORKING WOMEN, and wrote in its preface that up until this time “sexual harassment . . . has been legally unthinkable,” by which she appeared to mean that no officials of the executive or judicial branches, responsible for applying antidiscrimination laws had yet conceptualized sexual harassment as a form of unlawful sex discrimination. When I read that statement, years ago, I took it at face value (Goldstein 1988), but I have learned from Kathrin Zippel’s new book that the statement was an exaggeration.

Zippel’s book, THE POLITICS OF SEXUAL HARASSMENT accomplishes four tasks: (1) It traces the history of the development of sexual harassment policy in three polities—the US, the European Union, and Germany; (2) offers a study of transnational norm diffusion around the issue of sexual harassment; (3) presents an analytic cross-national comparison of the public policies on sexual harassment in the US and in several EU member states, although an in-depth study of two in particular, Germany and the US; and, finally, (4) does a comparative analysis of the social movement against sexual harassment in the US, the EU, and Germany. I found it a fascinating narrative and I learned a great deal from it.

It left me with the dominant impression of wanting more—one author cannot do everything in one book, but I would have enjoyed learning more details on sexual harassment policy in countries of the EU other than Germany; Zippel presents a brief sketch of alternative directions some have taken, but not much more than a sketch. The other detail I greatly missed is that she ends the book chronologically with the election of Angela Merkel to the Chancellorship of Germany in September 2005 and with Germany having only until the end of 2005 to meet its deadline on the binding directive from the European Commission to enact a law against sexual harassment that would treat it as sex discrimination (as well as a violation of human dignity) and that would for the first time have effective enforcement mechanisms. She concludes the discussion with, “the future of the bill is uncertain.” It would have been nice had she been able to hold the presses even a few months in order to tell us whether Germany did or did not comply. One is left wondering what would happen and also without a clear sense of the sanctioning mechanisms available to the [*634] EU to bring Germany and the other member states into compliance.

The story Zippel tells begins with a small group who meet in Ithaca, New York, stimulated by some consciousness-raising discussions to organize a “speak-out” protest against something they decide to call “sexual harassment.” They believe they have invented the term, and perhaps they did. The year was 1975 (pp.53-54). But they were not alone. By January 20, 1975 the EEOC (under Republican President Ford) had filed an amicus brief on behalf of a plaintiff in federal district court who was complaining of having been fired for refusing to have sex with her boss. The brief argued that sex-based harassment was properly interpreted as unlawful sex-based discrimination because the imposition of “frequent, unsolicited sexual advances” imposes an “irrational impediment to job opportunities” and an “unwarranted working condition” that “affected the employment of women” (pp.47-48). She lost her case (CORNE v. BAUSCH & LOMB 1975). But a woman also in 1975 won her complaint at the Minnesota Human Rights Commission that the repeated sexual innuedos and invitations and unwanted, indeed plainly rebuffed, physical contacts of her boss amounted to sex-based discrimination (Farley 1978, at 128-130). On April 20, 1976 a federal district judge in Washington declared that the firing of a woman by her boss for refusing to have sex with him did indeed violate the federal law against employment discrimination based on sex (WILLIAMS v. SAXBE). By 1977, two more federal courts endorsed this reading of the 1964 Civil Rights Act, one of them a federal circuit court of appeals where the father of Catharine MacKinnon, the late Judge George MacKinnnon wrote a concurrence in the decision (BARNES v. COSTLE, July 27, 1977, and MUNFORD v. BARNES, Sept.9, 1977).

The three roughly simultaneous events of 1975-spring 1976 in Ithaca, in Arizona (where Bausch & Lomb was) and in Washington, D.C. do not appear to have any direct connection to each other. But the fact that they occur together is probably not unrelated to the fact that Congress in 1972 (something the author, unfortunately omits) greatly strengthened the reach and enforceability of the 1964 Civil Rights Act’s prohibition on race-based, nationality-based, religiously-based or sex-based discrimination in employment (for firms of 15 or more employees). The prohibition was extended to cover state and federal employees (i.e., many millions more people) and the EEOC for the first time was given the power to take employers to court for violating the act. The year 1972 was the year of probably the peak of the second wave women’s movement in the US (at least to judge from progress of the Equal Rights Amendment), and was also a year of continuing racial tensions around the civil rights movement (including summer race riots in urban areas). (In 1971 the Supreme Court had for the first time upheld cross-neighborhood busing for desegregation purposes in formerly de jure segregated systems. SWANN v. CHARLOTTE-MECKLENBURG.) [*635]

Thus the 1972 legislation from the feminist and civil rights mobilization in Congress is what produces the mid-1970s increase in the flow of discrimination cases into federal courts. In 1972 a federal judge ruled for the first time (ironically, against the EEOC as employer) that the Civil Rights Act’s prohibition on discriminating in “working conditions” meant that employers could be held liable if they did not act to correct a workplace permeated by racial taunts, verbal and/or physical (ROGERS v. EEOC, at 238-9). Such workplaces were common in the American South where the federal government was finally cracking down on whites-only employers, and where the racist white workers were taking it upon themselves to hound black workers into quitting the job. ROGERS v. EEOC is quickly followed by another federal case extending its logic to hostile environment harassment based on ethnicity/nationality (in a Native American case, MASSEY v. ILLINOIS RANGE CO. 1973). It was simply a matter of time for this judicial logic to be extended to hostile environment harassment involving women (which was all too common in all-male workplaces that were forced to accept women co-workers, such as police departments, fire departments, mines, construction sites (e.g., CALDWELL v. HODGEMAN 1981; and JENSON v. EVELETH TACONITE 1993, settled Jan.4, 1999 and topic of the 2005 movie, “North Country”).

So the two forms of sexual harassment legal concepts, “quid pro quo” and “hostile environment” were both born in judicial precedents and in EEOC briefs before the 1979 publication date of the MacKinnon book. But the book and the social movement of which the book was both a stimulus and a part certainly nurtured them. They came to maturation via scandal, especially the Anita Hill-Clarence Thomas hearings of 1991, and also the Jones-Lewinsky-Clinton scandal. The massive publicity given to the Hill-Thomas hearings caused a surge in sexual harassment filings with the EEOC. They nearly doubled from 6,127 in 1991 to 10,532 in 1992, peaking with 15,889 in 1997, the year before the Supreme Court authorized Paula Jones’ lawsuit against President Clinton (p.72).

Much of this story and more is told in the Zippel volume. She briefly alludes to but skimps on the racial civil rights cases background, but there is enough here to guide the reader interested in doing more detailed research. She does mention the role of Congress in drawing attention to sexual harassment in four days of committee hearings in 1979 and 1980, where among others, Eleanor Holmes Norton, EEOC chair under President Carter, gave testimony. The first of these hearings predated and presumably encouraged the 1980 issuance of the EEOC Guidelines on sexual harassment that warned employers about both quid pro quo and hostile environment types of harassment (pp.57-59).

Zippel’s own emphasis is on attempting to find linkages between the feminist social movement and the revolution in sexual harassment policy via judicial policy-making. Her book is stronger on the role of European activists and feminist government officials in [*636] diffusing the anti-sexual-harassment norms that they picked up from visits to the US or from attendance at international conferences where they had conversations with US attorneys, scholars, activists, or officials.

Except for the UK and Ireland (where something closer to the US approach but with much more modest damage awards developed, pp.102; 107-8; 177-9), the sexual harassment policy adopted in European countries tended to avoid policy-making via litigation and to emphasize union-management agreements on anti-mobbing rules for the workplace. Many Europeans were put off by what they viewed as Americans’ silly Puritanical views against flirtatious fraternization in the workplace. So they emphasized the hostile workplace side of the concept by forbidding “mobbing” as a violation of the human dignity of workers. “Mobbing” is the European term for “systematic workplace hostility of long duration” imposed on someone with “the goal of marginalizing and getting rid of him or her” (pp.2, 9). It is unfortunate that Zippel did not bring out more fully the racial- and nationality-grounded background of the US sexual harassment cases, because that would have highlighted for the reader the parallels to the European anti-mobbing approach. The attractiveness of the anti-mobbing approach in Europe is understandable as tensions over immigration intensify there, creating situations with certain parallels to the period of the US civil rights movement. Also, the European emphasis on dignitary harms (as distinguished from equality of treatment) would have been rendered more understandable for the reader had she pointed out the central role of human dignity as a primary constitutional right in the German Constitution and in several other European Constitutions and in the European Charter of Fundamental Rights (Baer 2004, at 589.)

The European story Zippel tells begins in the European Community in 1983 (which became the European Union with the Maastricht Treaty of 1993) and ends before the ten new nations joined the EU in 2004. In 1983, the same year that a tribunal in Northern Ireland ruled sexual harassment unlawful, but well before a court in Ireland did so in 1985, and before the US Supreme Court did in 1986, EC level officials began to push anti-sexual-harassment policies as part of their mandate under the 1976 Directive on Equal Treatment of men and women in employment (pp.18, Table 1.1; 87; 93-96, including Table 3.1; 100, Table 3.2; MERITOR SAVINGS v. VINSON 1986). At first these took the form of “soft” measures, such as a demand for action expressed in the European Parliament in 1983, a 1984 Council of Ministers recommendation to member states that they act on the problem, and a 1986 resolution from the European Parliament recommending that the European Commission (the EC’s administrative arm) take action (pp.93-96).

Why did these European level officials act? Feminist activists in Europe read books by US authors like Catharine MacKinnon (1979), knew of coverage of the issue in US media like REDBOOK, knew of the 1980 EEOC guidelines on sexual harassment in the US, had their [*637] own sexual harassment scandals to deal with, and started agitating for action in the early 1980s (pp.86-90). There is no doubt that the concept crossed the Atlantic from the US, but once in Europe it became transformed to fit European institutional traditions; hence the “mobbing” label. Both feminists and feminist-sympathetic labor union activists worked in tandem in a transnational advocacy network (TAN), which is an alliance of interest group lobbyists, sympathetic officials and scientific experts roughly similar to the concept of “issue network” used in American politics research, except that an issue network includes a variety of points of view, while members of a transnational advocacy network all work on the same side. The TAN that opposed sexual harassment in Europe had much greater success at EC/EU levels at first than at national levels, where male-dominated unions had entrenched control over labor policy. Zippel finds it surprising that the EU moved more quickly than the governments of the member-states did, but this is not such a surprise when one reflects that EU institutions are far less directly accountable to electoral majorities than national governments are. Thus elites in the EU, once committed to change, had more flexibility in which to act. Once the EU started promoting sexual harassment, not only by soft directives, but most importantly by gathering and publishing data that proved that sexual harassment was a serious impediment to equal job opportunity in Europe (Rubenstein 1987), these actions strengthened and emboldened activists at national levels to push for tougher policies. EU measures legitimized the issue as genuinely European rather than merely an American obsession. Zippel describes the political interaction as a kind of ping-pong process, since the lobbyists bounced from supranational level to national level and back, as opportunities opened or closed. She distinguishes it from the “boomerang effect” described by Keck and Sikkink (1998), but never explains to the reader what the boomerang effect is. Gradually, and very incrementally, the EU toughened its stance. It gave the member states more than ample time to adjust their policies under the non-binding directive of 1994, and finally issued a binding directive in 2002 insisting on legislation in every member-state by the end of 2005 that would treat sex-based harassment as sex discrimination in employment and would have enforceable teeth in it. For American readers, the account of how limited Germany’s response has been to these EC/EU pressures will be sobering, not to say depressing. Women victimized by truly vicious levels of sexual harassment even in supposedly “advanced” countries like Germany have very little recourse, to date.

This book offers a treasure trove of information on the anti-sexual-harassment movement in Europe and on its origins in the US. It also offers a sobering account of how difficult it is for EU institutions to move national governments, particularly when those national governments contain entrenched power structures opposed to change. Finally, what stood out to me in her account was the important role played by individual feminists who happened at one moment or another to hold an [*638] important position in EU or member-state officialdom. The importance of having feminist women in positions of power is quietly underlined in her account by her description of several who significantly advanced the development of policies condemning sexual harassment. And explicitly underlined is the pivotal role played by women who occupy the state women’s agencies that were created under EU mandate (i.e., those she dubs “femocrats”).

The book is not perfect; she does not pick up (pp.67, 207) that the US Supreme Court (in HARRIS v. FORKLIFT 1993) has rejected the “reasonable woman’s standard” test endorsed in the ELLISON v. BRADY (1991) US circuit court of appeals judgment that sexual harassment should be evaluated as to its offensiveness or intimidating qualities by the perspective of a typical member of the victim group (generally women), rather than some abstract supposedly objective standard of the imaginary “reasonable person” (see, e.g., Larson 2004, at 137). But on the whole the book is thoughtful, extremely informative, and a fascinating read.

REFERENCES:
Baer, Susan. 2004. “Dignity or Equality? Responses to Workplace Harassment in European, German and US Law,” pp. 582-601 in MacKinnon and Siegel.

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

Goldstein, Leslie F. 1988. THE CONSTITUTIONAL RIGHT OF WOMEN (2d ed). Madison: University of Wisconsin Press.
Keck, Margaret, and Kathryn Sikkink. 1998. ACTIVISTS BEYOND BORDERS: ADVOCACY NETWRKS IN INTERNATIONAL POLITICS. Ithaca: Cornell University Press.

Larson, Jane. 2004. “Sexual Labor” pp.129-137 in Mackinnon and Siegel.

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

MacKinnon, Catharine A., and Reva Siegel. 2004. DIRECTIONS IN SEXUAL HARASSMENT LAW. New Haven: Yale.

Rubenstein, Michael. 1987. THE DIGNITY OF WOMEN AT WORK: A REPORT ON THE PROBLEM OF SEXUAL HARASSMENT IN THE MEMBER STATES OF THE EUROPEAN COMMUNITIES. Brussels: Office for Official Publications of the European Communities.

CASE REFERENCES:
BARNES v. COSTLE. 1977. 561 F.2d 983.

CALDWELL v. HODGEMAN. 1981. 25 F.E.P Cas. (BNA) 1647.

CORNE v. BAUSCH & LOMB. 1975. 390 F.Supp. 161. [*639]

ELLISON v. BRADY. 1991. 924 F. 2d 872.

HARRIS v. FORKLIFT. 1993. 510 U.S. 17.

JENSON v. EVELETH TACONITE. 1993. 824 F.Supp. 847.

MASSEY v. ILLINOIS RANGE CO. 1973. 358 F.Supp. 1271.

MERITOR SAVINGS v. VINSON. 1986. 477 U.S. 57.

MUNFORD v. BARNES. 1977. 441 F. Supp. 459.

ROGERS v. EEOC. 1972. 454 F.2d 234.

SWANN v. CHARLOTTE-MECKLENBURG. 1971. 402 U.S. 1.

WILLIAMS v. SAXBE. 1976. 413 F.Supp. 654.

© Copyright 2006 by the author, Leslie F. Goldstein.

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AWLESS WORLD: AMERICA AND THE MAKING AND BREAKING OF GLOBAL RULES FROM FDR’S ATLANTIC CHARTER TO GEORGE W. BUSH’S ILLEGAL WAR

by Philippe Sands. New York: Viking Penguin, 2005. 320pp. Hardcover. $25.95. ISBN: 0670034525. Paperback (2006). 352pp. $16.00/£8.99. ISBN: 9780143037828

Reviewed by Donald W. Jackson, Texas Christian University. E-mail: d.w.jackson [at] tcu.edu.

pp.628-632

Within the past two years there has been a plethora of books about President George W. Bush’s national security strategy and the consequent retreat from our previous obligations under international law and institutions; several of them are listed in the references to this review. Many of the steps in the US retreat from international legal obligations relate to the ongoing “War on Terrorism” that threatens to have no demonstrable conclusion. Many writers have been highly critical of the Bush II administration, but others, for example, Joseph A. Klein (2005), not only defend the administration, but vigorously go further to attack the United Nations and its subsidiary and related institutions. This is not to suggest that books such as Klein’s rest on sound research or objective analysis. Instead, his contending viewpoint chiefly is ideological, for he and others of like persuasion seem to be engaged in “no holds barred” political combat.

LAWLESS WORLD, by Philippe Sands, clearly is one of the books critical of U.S. policy, and it contains most of the usual topics, such as Guantanamo, torture and interrogation; the questionable legality of our intervention in Iraq; terrorism and civil liberties. Yet, a key virtue of the book is that it transcends those discussions which, while no doubt of continuing importance, rest on arguments that already are commonplace to many. Sands’ book also includes consideration of the international law respecting global warming, international trade, and the international protection of investments. These are not commonplace topics. Broadly speaking, Sands’ book is essential reading for those whose work in public law usually does not include the post-World War II emergence of customary and treaty-based international law. His chapters on dispute resolution processes, through the Appellate Review Body of the World Trade Organization and the World Bank’s International Centre for the Settlement of Investment Disputes, are especially likely to provide new and useful information for most readers. The remaining chapters are not as likely to provide entirely new information, although they are equally well-presented.

Sands’ fifth chapter is devoted to the Dispute Resolution Understanding (DSU), one of the processes established by the creation of the World Trade Organization (WTO) in 1994. In its first decade (1995-2005), the United States filed 81 petitions, and was the respondent to 90 petitions before the DSU. These 171 cases represented 51 per cent of the 335 cases filed with the [*629] DSU in that decade. The Appellate Review Body created by the DSU is a powerful institution with authority to declare violations of the WTO by member states and to authorize retaliatory measures against WTO violators. Critics of the DSU focus on its low visibility and accountability (Hertz, 2003, especially pp.93 et seq.). Hertz probably has a point of view as ideological as Klein [above], but from the opposite end of the political spectrum. The DSU clearly deserves greater attention by scholars. The gateway to DSU cases can be found online at http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm .

Sands’ sixth chapter reviews the International Centre for Settlement of Investment Disputes (ICSID) of the World Bank that was established under the Convention on the Settlement of Disputes between States and Nationals of Other States and came into force in 1966. The ICSID website [www.worldbank.org/icsid/cases/] reports 106 concluded cases (three of them involving the United States as respondent) and 104 pending cases (none against the United States). Under NAFTA rules investor claims may be filed at the Additional Facility of ICSID. ICSID has seen even less attention by scholars than the DSU of the WTO.

Sands’ chapters on the DSU of the WTO and on ICSID of the World Bank raise the interesting and perplexing question of why the United States is among the strongest supporters of these important and authoritative international institutions while remaining among the strongest opponents of the International Criminal Court. More on that at the end of this review.

Philippe Sands has the useful perspective of having been an actual participant in several of the cases and issues he reviews. For example, he was an advocate in the Pinochet case in London, part of the negotiations that led to the adoption of the Rome Statute for the International Criminal Court, and a legal adviser to the delegation of St. Lucia at the 1990 Geneva World Climate Conference.

In his chapter on the Pinochet case, Sands concludes that the precedent may mean that heads of state may be held accountable, if the political will exists to enforce extant principles of international law, while noting that “foreign courts, located at a great distance from the place of the crime are not well placed to consider evidence and witnesses.” Yet he also notes that this “supranational conception of justice” has “not been plucked out of thin air by judges and lawyers,” but flows from commitments such as the 1984 Convention against Torture, which, in principle, binds the United States and majority of the world’s nation states (p.44).

The new International Criminal Court (ICC) now binds more than 100 nation states, but not the United States, Russia or China. The absence of the United States is ironic, for it was one of the strongest early advocates of such a court. Indeed the commitment of the United States to the international prosecution of war criminals dates from President Wilson’s policy of indicting Kaiser [*630] Wilhelm II for waging war (p.49). But the ICC that was once favored by the United States was an institution that could be controlled by the permanent members of the UN Security Council, for the US plan was that cases would be sent to the ICC solely by the Security Council. When the proposal for the ICC evolved toward an independent prosecutor who could bring cases under his/her own authority (propio motu), the United States balked. While President Clinton signed the Rome Statute for the ICC near his last days in office, the signature was withdrawn by the Bush II administration, which has consistently worked against the ICC, at least as its jurisdiction might apply to the US. It is only fair to note that Clinton’s signature served chiefly to keep the United States within the negotiation over the details of the ICC. Even so, the United States under Clinton was the principal advocate against the prospects of the Rome Statute for the ICC at the 1998 Rome Conference (and one of only seven countries eventually voting against it). Despite several safeguards against politically-motivated prosecution of US military personnel the US has worked consistently against the ICC since 1998.

In his seventh chapter, Sands describes Guantanamo as a “Legal Black Hole,” and he wrote it well before the Supreme Court’s decision in HAMDAN v. RUMSFELD in June 2006, although he does review the June 2004 decision in RASUL et al v. BUSH. Probably more has been written recently on Guantanamo than on any of the topics in this book, but the congressional response to the HAMDAN majority is yet to be determined.

Sands also concludes that the war in Iraq is both illegal and illegitimate, citing (among others) Anne-Marie Slaughter (2004). His conclusion is sustained by the deputy legal counsel of the UK Foreign Office, who resigned in March 2003, following the UK Attorney General’s efforts to justify his country’s use of force when responding to a parliamentary question: “I regret that I cannot agree that it is lawful to use force without a second Security Council resolution” (p.189). When the details of the Foreign Office’s advice to the prime minister were published in April 2005, the advice included the warning that a “‘court of law might well conclude’ that the use of force against Iraq without a second UN resolution would be illegal” (p.197).

In his ninth chapter on “Terrorists and Torturers,” Sands reviews the work of John Yoo, whose views on presidential power are now set out in a recent book (2005). Sands finds Yoo’s work to be “replete with basic errors of law” (p.213) and writes that Yoo’s assessment of international law is “plain wrong” (p.215). Sands concludes with the following:

Over time a great deal more information will emerge. But even at this stage it seems pretty clear that the legal minds which created Bush’s doctrine of preemption in the use of force and established the procedures at the Guantanamo detention camp led directly to an environment in which the monstrous images from Abu Ghraib could be created. Disdain for global rules underpins the whole enterprise. (p. 222) [*631]

At the end of his book, Sands reviews the justifications offered for the policies of the Bush II administration for redrawing the map of “global rules:” 1) that current international law is inadequate to deal with global terrorism, especially the problems involving dealing with non-state actors; 2) that the obligations of the President of the United States to protect US interests ought to prevail over international law, especially given the democratic deficit of most rules of international law; and 3) that military and economic power simply trump international law, and allow the United States to pursue its perceived interests despite actual or prospective conflicts with such laws. Of course, even if the first point has some merit, no lawyer committed to the emergent international legal order can endorse the second or third points Sands concludes that, “The rules of international law will turn out to be more robust than the policies of the Bush administration. Tough guys are not enough in international relations. In the twenty-first century you need rules, and proper lawyers too” (p.239). We shall see whether he may be too optimistic.

Ultimately, the paradox between US participation in the binding provisions of the Dispute Settlement Understanding of the WTO or the World Bank’s ICSID process, on the one hand, and the Bush II administration’s efforts to constrain seriously any international limitations on its foreign policy and war making power, on the other, is perplexing. The only explanation that emerges from surveying the topography of recent US policy is that the Bush II administration – and transnational US corporations – have confidence that their combined economic power ultimately will dominate global trade and finance, while global opposition to the unilateral use of military power by the United States will ultimately diminish. The prospect of an international legal order that might constrain that power – and possibly punish those who violate international criminal law as set out in the Rome Statute of the ICC – are so threatening that they must be opposed on every front.

REFERENCES:
Daalder, Ivo H. and James M. Lindsey. 2003. AMERICA UNBOUND: THE BUSH REVOLUTION IN FOREIGN POLICY. Washington: Brookings Institution Press.

Hertz, Noreena. 2003. THE SILENT TAKEOVER: GLOBAL CAPITALISM AND THE DEATH OF DEMOCRACY. New York: Harper Business.

Irons, Peter. 2005. WAR POWERS: HOW THE IMPERIAL PRESIDENCY HIJACKED THE CONSTITUTION. New York: Metropolitan Books.

Klein, Joseph A. 2005. GLOBAL DECEPTION: THE UN’s STEALTH ASSAULT ON AMERICA’S FREEDOM. Los Angeles: World Ahead Publishing.

Slaughter, Anne-Marie. 2004. AMERICAN SOCIETY FOR INTERNATIONAL LAW NEWSLETTER. March-April, 1. [*632]

Yoo, John. 2005. THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11. Chicago: University of Chicago Press.

CASE REFERENCES:
HAMDAN v. RUMSFELD, 548 U.S. ___, 126 S.Ct. 2749 (2006).

RASUL v. BUSH, 542 U.S. 466 (2004).

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

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MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM

by William M. Sage and Rogan Kersh (eds). New York: Cambridge University Press, 2006. 406pp. Hardback. $75.00/£48.00. ISBN: 0521849322. Paperback. $29.99/£19.99. ISBN: 0521614112.

Reviewed by Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director of the Intellectual Property Law Concentration, Suffolk University Law School, Boston. Email: profrustad [at] aol.com.

pp.622-627

What do we know and still do not know about the medical malpractice liability system? This collection is a new audit that provides the best available data to answer this question, and it highlights policy studies from a Who’s Who of health policy researchers and scholars. Most of the essays offer practical reforms based upon empirical data calculated to improve the functioning of the medical liability system. William Sage is a lawyer as well as a doctor on the faculty at Columbia Law School. His co-editor, Roger Kersh, has a Ph.D from Yale and currently teaches at Syracuse. The contributors include prominent tort and insurance scholars, such as NYU’s Jennifer Arlen and Connecticut’s Tom Baker. Outstanding health policy scholars, such as Randall R. Bovbjerg, Troyen A. Brennan, and David Studdert, also have interesting pieces in this volume.

Any medical liability reform must begin with granite-tough empirical research rather than anecdote or urban legends. The debate over medical liability reform during the past two decades has depended too much on passion rather than empirical studies. This volume represents the best available empirical research by top researchers but it does not by any stretch of the imagination give us the data necessary to resolve the medical liability conflict.

How can we improve the medical liability system if there is no central repository of claims, verdicts, and payouts? No reliable data exist on the number of malpractice claims, let alone the number of settlements, verdicts, and post-verdict adjustments by year. Studies are needed on how professional liability insurance reflects claims and actual payouts. Social scientists are in no position to address these issues without better data. There is a poverty of empirical work on the systematic problems that lead to medical liability in the first place.

The editors deliver on their goal of shedding light rather than heat, but it is extremely difficult to be truly neutral and objective given the self-interested sources of funding and the national debate which is beginning to take on the same divide as the blue and red states. One of the domain assumptions underlying many of the selections is that there is truly a litigation crisis. In Sage’s and Kersh’s introduction, they assert that, “malpractice premiums continue to rise” (p.1). My Suffolk University Law School colleague Marc Rodwin and his collaborators have examined the best available data on malpractice premiums, [*623] the American Medical Association (AMA) surveys of self-employed physicians from 1970 to 2000. The Rodwin study (2006) concluded “that premiums rose until 1986, then declined until 1996, rose thereafter, but were lower in 2000 than in 1986.” The Rodwin study of medical insurance premiums concludes that other items accounted for “a much greater share of total practice expenses in 1970 yet increased rapidly until 1996 and moderately thereafter, while spending on premiums fell during 1986-2000.” The Rodwin, et al. study also controls for high-risk specialties and examines fields such as obstetrics/gynecology, surgery, and anesthesiology across the United States. Mark Pauly’s article addresses the question of “Who Pays When Malpractice Premiums Rise?” But Pauly, like the editors, assumes that premiums have been rising. Hopefully, the editors and some of the contributors will respond to the Rodwin study in the next edition.

Each of the essays in this collection states hypotheses that would be testable if we had better claims and payout data. Texas required greater disclosure by insurers as a predicate for its 1995 tort reforms. Nonetheless, even in Texas reliable data on settlements and claims paid is not available in an accessible format. If average data on payouts are unavailable, it is all but impossible to have an informed debate on tort reform. The supporters and opponents of medical liability reform have no choice but to base competing claims on fragmented information. Academics can only stand by and ask for better data.

Mello’s and Studdert’s chapter describing the medical malpractice system (Chapter One) is a good descriptive account of the litigation process and lays out an excellent research design for assessing the performance of the liability system. The authors describe how insurance arrangements work. Physicians who are targeted by malpractice claims tend to be in high-risk specialties. The hospital, clinic, or other health care provider is vicariously liable for claims if it can be proven that malpractice resulted from the acts of employees. The authors acknowledge how difficult it is even to describe the liability system without a “centralized repository of information on all filed claims” (p.13).

Mello’s and Studdert’s essay is a model of excellence in its description of how insurance works. If better data were available, we would likely uncover risk factors that could result in fewer malpractice claims. The authors provide a compelling argument that compensation falls short of the mark when it comes to optimal liability. The best available data on compensation indicate that approximately 1 in 10 victims of medical malpractice file suit.

The authors cite Patricia Danzon’s path breaking California medical liability study that finds that only 40% of these claims resulted in a payment. “In other words, in this [California] sample, a physician who committed an error leading to injury had only a 4 percent chance of having to compensate the patient” (p.16). The highly publicized Harvard Medical Practice Study in the mid-1980s followed the Danzon [*624] publication (p.16), and these studies have been replicated by empirical investigations in Utah and Colorado. The authors conclude that “the system does not perform well either in compensating eligible patients or in avoiding claims by those who are not eligible” (p.17), and they also report a low correlation between likelihood of being sued for malpractice and deterrence.

Perhaps, a different methodology would unveil a more complicated multi-factorial explanation for the disjuncture between claims and deterrence. Tom Koenig and I studied punitive and non-economic damages in medical malpractice cases going to verdict (1963-1993). We interviewed plaintiffs’ counsel as well as defense counsel who tried these cases about what remedial steps were taken in the wake of awards and post-verdict settlements (Koenig and Rustad 2001). Although deterrence was not the focus of our study, we found it noteworthy that many hospitals, clinics, and even individual physicians implemented safety and protocol improvements after awards. A study of specific deterrence would minimally study what safety steps, disciplinary actions, or other remedial measures were taken after a verdict or settlement. The weak relationship between specific deterrence and claiming may be the result of a methodology that does not accurately measure the dependent variable.

General deterrence is all but impossible to measure although publicity in medical journals is an unobtrusive measure that the signal of litigation is heard by medical providers other than the defendant. Sponge and instrument counts, for example, were instituted in hospitals across the country after high-profile malpractice cases. It is unknown, or perhaps even unknowable, whether a claim sends a signal more generally that changes inadequate protocols or procedures. The authors conclude that corrective justice is the one area of the medical liability system that appears to be working well (p.22), and they do a remarkable job in explaining physicians’ responses to liability.

The entire concept of defensive medicine is slippery, like trying to nail Jell-O to a wall. Defensive medicine, the authors explain, consists of both goods news and bad news. A physician receiving the signal of deterrence may take preventive steps, but it is difficult to determine whether they take inefficient measures. One of the most corrosive effects of medical liability is what the authors term “bristling behaviors” that interfere with the physician/doctor relationship (p.25). They also describe cloaking behavior that results in underreporting of possible malpractice, and they conclude that the plaintiffs’ view of medical liability and patient safety clash with a non-punitive, cooperative-based approach to patient safety. In Sweden, for example, doctors frequently cooperate with an injured claimant in helping them obtain compensation. However, this cooperative-based approach would only work in a system of universal health care, as in the Scandinavian countries.

Co-Editor William Sage’s magisterial essay on malpractice reform contends that policy debates are clouded by [*625] professional rivalries. Malpractice, he writes, has been “a defining issue for the American medical profession in its relationship with lawyers over nearly two centuries” (p.30). President Bush has mentioned the need for liability reform in his last three State of the Union addresses, which confirms Sage’s conclusion that medical liability has indeed drawn closer to national partisan politics. Sage notes that tort reform has taken a myopic view of caps on noneconomic damages without looking at ways to improve the medical liability system. All Americans should share the policy goal of keeping patients safe, improving legal process, and requiring liability insurance to pay where appropriate (p.31).

Sage explains that the only good thing about a “malpractice crisis” is that it spurs research (p.32). Real liability reform would help injured victims obtain redress for adverse claims. One of the difficulties for physicians is that the standard of care continues to rise as a function of technological development (p.34). Brain-damaged babies, who would have died with earlier technologies, now survive for many decades. Sage notes that lifetime care can result in $100 million dollar judgments. True medical malpractice reform will need to refine and even rethink the standard of care where technologies make it possible to tackle hopeless cases. At present, the occasional $100 million judgment may have a chilling effect on innovation. This is a topic that requires further empirical research. His chapter covers big policy questions such as the possibility of a “no-trial” dispute resolution system (p.39). The chapter does a good job of going beyond the tort reform debates to discuss major issues.

The essays in this collection provide a treasure trove of the best available data on medical liability. Maxwell J. Mehlman of Case Western University School of Law’s Law-Medicine Center, (Chapter 8) authored an excellent summary of the research on noneconomic damages. Catherine Struve’s insightful essay describes how a growing number of states are requiring plaintiffs’ lawyers to sign certificate-of-merit provisions, a tort reform measure calculated to preclude the possibility of frivolous claims. Massachusetts has gone even further, requiring a record review by a doctor, lawyer, and judge before a complaint may be filed. These measures bring common sense to the common law. Struve’s well-argued audit of jury performance points to a system that works rather well. She notes that juries do fairly well assessing expert evidence on the standard of care and the causal connection between malpractice and injury. She points out that case management coupled with good jury instructions, jury note taking, and better jury education can also improve jury performance, although she acknowledges that no single measure can fix the malpractice system. (Chapter 10).

Catherine M. Sharkey’s convincing chapter on “Caps and the Construction of Damages in Medical Malpractice Cases” is a policy study backed by data and provides the best available audit on the effectiveness of capping award size (Chapter Nine). Her report card on [*626] effectiveness will be of interest to policymakers as well as academics. One major finding is that there is no statistical effect of caps on the overall judgment. Further research using different methodologies will be necessary before we conclude that caps have no disparate effect. Sharkey, like many of the other contributors, provides legislators as well as policymakers with a careful and meticulous roadmap of what we know about the impact of caps on medical liability. Policymakers need to base further medical liability reforms on data, rather than anecdote.

Tom Baker’s path breaking piece on enterprise insurance explains that the medical liability problem requires insurance reform, not tort reform. His dazzling book, THE MEDICAL MALPRACTICE MYTH (2005), systematically dismantles a number of other myths about the so-called medical malpractice crisis. Baker provides a convincing argument that the medical liability crisis arises from defective medicine rather than too many medical malpractice cases. In this volume (Chapter 14), he cogently explains that the volatility of the underwriting cycle has a far greater effect on insurers’ losses than medical liability claims (p.272). Smoothing out the underwriting cycle would go a long way toward stabilizing premiums. Placing barriers to patient malpractice recovery in the form of tort reforms is not likely to improve the functioning of the liability system and creates distortions in the pricing of premiums.

Baker systematically dismantled many of the myths surrounding the medical liability crisis. The best available empirical data finds no causal connection between large medical liability claims and premium pricing. California’s $250,000 cap on noneconomic damages, for example had an insignificant impact on premiums until that state enacted insurance reforms. He calls for even broader insurance reforms that have the potential of stabilizing premiums in all states. Another key component to Baker’s reform package is to key underwriting decisions into patient safety measures. Prevention should be the watchword of health care providers. He proposes “enterprise insurance” that would cover all liabilities arising out of provided medical services (p.268). Baker concludes by responding to potential objections to his enterprise insurance plan. His clarion call for insurance reform, not tort reform, is based on convincing empirically-based policy analysis.

Each contributor to this book is a national expert, and each provides a useful review of the empirical data. The book is highly recommended for all law libraries, and it would be an ideal reader for a course on health policy or a specialized seminar on medical malpractice. A future volume is needed based upon information from a central repository of data on claims, settlements, and verdicts. Any effort to improve our medical liability system must be predicated upon accurate data, rather than policy conjecture. [*627]

REFERENCES:
Baker, Tom. 2005. THE MEDICAL MALPRACTICE MYTH. Chicago: University of Chicago Press.

Rodwin, Marc A., Hak J. Chang, and Jeffrey Clausen. 2006. “Medical Premiums and Physicians’ Income: Perception of a Crisis Conflict with Empirical Evidence.” 25 HEALTH AFFAIRS 750-758.

Koenig, Thomas H., and Michael L. Rustad. 2001. IN DEFENSE OF TORT LAW. New York: New York University Press.

© Copyright 2006 by the author, Michael L. Rustad.

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SECESSION: INTERNATIONAL LAW PERSPECTIVES

by Marcelo G. Kohen (ed). Cambridge and New York: Cambridge University Press, 2006. 546pp. Hardback £70.00/$120.00. ISBN: 0521849284. E-book format. $96.00. ISBN: 0511159307.

Reviewed by Lee P. Ruddin (LL.B: Liverpool); (MRes: London) and (PgCert: Sheffield). Email: leetherudster [at] aol.com.

pp.617-621

While not practical to thrash out a treatise of all the essays “autonomously” (a pertinent utterance when reviewing a text deciphering such a theme) in this collection devoted to international law perspectives on SECESSION, edited by Marcelo Kohn, one does strive to appraise the full volume. The study offers a compilation of fourteen essays which unveils the pre-eminence of existing scholarship on secession examining “The Foundations of International Law” and “Their Impact on Secession and International and Domestic Practice.”

Contained within the first of the two pillars of this book (“encompassing a theoretical analysis”: p.x), individual chapters informatively introduce the theses of: secession and self-determination; terrorism and the right of self-determination; the question surrounding external intervention in secessionist causes; State “recognition” and the interesting (often disregarded) issue of secession and succession. The second column of the volume is region-specific (and state-centric: p.x) scholarly dissecting the history and law(s) governing secession in the locales of Africa, Asia and Pacific regions, Europe, Latin America, Canada, and Switzerland.

The corollary to the demise of the U.S.S.R witnessed embryonic secessionist aspirations in tandem with the re-awakening of existing (though quiescent) separatist claims. The construction of a novel autonomous entity by way of separation from a territory (especially those “allergic” to the concept of secession: p.3) does raise grave difficulties challenging the very foundations of international law (pp.1, 3, for definition). The swell in UN membership from 51 in 1945 to 149 in 1984 (the corollary of colonialism) and then, from 151 in 1990 to 191 at present, explains an historical phenomenon, broadly termed secession (p.2) (as Daniel Moynihan predicted). This volume’s clear thesis unearths the role of law and politics in secession.

The State’s obligation from the international law perspective is to ensure democratic participation in public affairs to all its citizens within its internal structures. From the political viewpoint, nevertheless, a negative posture of a central government to addressing the issue [secession] democratically raised by parts of its population can have an important impact in the perception of this situation by third States (p.18).

Georg Nolte (Chapter Three) cites the dictum in the case of NATIONALITY DECREES IN TUNIS AND MOROCCO, whereby “The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relevant question; it [*618] depends on the development of international relations” (p.72). “Politics” cannot be overstated in “Secessionist” discussion (for recently, “international relations have generally placed emphasis on the respect for the territorial integrity [for example] of the Russian Federation” (p.370). For instance, in relation to “recognition,” Dugard and Raic (Chapter Four) state that, “it is essential to appreciate that political considerations do influence the decision and may prompt a state to recognize an entity prematurely or to refuse to grant it recognition” (p.98). This may be for the reason stated by Patrick Dumberry (Chapter Thirteen) that “legal arguments are neither completely decisive of the question nor totally irrelevant” (p.450) with “legal consequences flow[ing] from political facts” (p.437). Moreover, Photini Pazartzis (Chapter Eleven) underscores the timely need of reviewing a text of this nature for the LAW AND POLITICS BOOK REVIEW, writing that “Secession is often viewed more as a problem of politics than one of law” (p.355).

The reader from the outset is made to comprehend the paradox of territorial integrity of the state with the right of self–determination. Such a contradiction is a problem with which the contributors struggle throughout the volume (p.6). “We affirm the equal rights of peoples and their right to self–determination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States” (pp.105, 310, 356).

The first chapter, by Christian Tomuschat, is a valid introduction to “Secession and self–determination.” Tomuschat opens with the enlargement ratione personae of the principle of self-determination for all peoples in the international community (though, “primarily designed to foster the decolonization process”: p.23). Tomuschat scholarly employs mini case-studies illustrating a battery of historical insight, for instance, highlighting the ground-breaking resolution adopted by the Organization of African Unity (OAU) in 1964 (p.27) with the later Security Council Resolution of 1244 (displaying recognition of a human community within a sovereign state enjoying a right to self-determination: p.34). Covering a vast repertoire of material, the chapter, is a lucid, educational and jargon-free opening, pulling no punches and intermittently criticizing the UN’s (deficient) role.

The second chapter, according to the title and introduction, offers a most urgent essay on secessionist combatants and chiefly an examination of the “recent judgments concerning the banning of certain organizations as terrorist organizations in the United Kingdom” (p.54). The chapter’s opening is an illustrative baptism of fire whereby Andrew Clapham highlights the anti-Western ambivalence of Arab states (referencing both the Convention of the Organization of the Islamic Conference on Combating International Terrorism and the Arab Convention on the Suppression of Terrorism) in regard to permissible armed attacks aimed at liberation – though these provisions do not apply to acts prejudicing the [*619] territorial integrity of any Arab state (p.47). Conversely, Clapham’s later pages suffer for being concerned too much with the “[in]compatibility” of UK domestic law with that of its international counterpart (p.55). Such a dogmatic view allied with a perpetual focus on compatibility leads to a repertoire of omissions on the effectiveness of UK banning orders leading the author to renounce (though not explicitly) the UK’s non-sheepish alignment with international treaties – regardless of the corollary of their static definition of “terrorism” in a post–9/11 and 7/7 world (p.61).

Secessionist efforts and the provocation of external intervention is the focus of the third chapter (p.65). The historically-based essay succinctly examines the role of the UN and armed intervention by third states. Georg Nolte makes clear from the outset that, the “UN Charter was not written with secession conflicts in mind” (p.66). Accordingly, one must read into this that the powers of the UN apply equally to all situations concerning international peace and security – for there is no “special category as per UN law” (p.66).

In light of the International Court of Justice’s (ICJ) dictum and precedent of Northern Cyprus and Sri Lanka creating a “strong prima facie case that external armed interventions . . . are legal when carried out at the invitation of a government” (p.78), Nolte is correct in highlighting the question of permissibility of interventions by foreign forces at the invitation of the government. He later argues that “a government which is challenged by a force that has obtained the control of at least some part of the territory of the State has lost the necessary representativeness to act in the name of the State” (p.79).

“Recognition” is the theme of the fourth chapter. John Dugard and David Raic present a gripping addition to the volume; highlighting the implication(s) of “recognition” which serves “as an instrument for the validation of claims to statehood on the part of new entities” (p.94). The ethos of their treatise is provided by way of Hersch Lauterpacht, who famously described recognition of an entity as a State while others are denied such acknowledgement as a “grotesque spectacle” (p.97). The authors explicitly note the fact that “States do not regard themselves under a legal duty to recognize entities as States once they comply with the requirements of statehood” (p.98). Tackling such a predicament, Dugard and Raic consider both the “declaratory” and “constitutivist” schools of thought in developing their thesis (p.100). The UN procedure is seen in a favourable light (collective recognition of States through the UN) remedying the (arbitrary) “constitutivist” weakness, and thus rendering Lauterpacht’s “spectacle” (and the doctrine of non–recognition: ex injuria jus non oritur) “no longer a practical possibility” (p.100).

Chapters Five, Eight, Nine and Fourteen are written in French (provided only with the most infinitesimal of English translation) on a repertoire of topics, including the State as a primary fact, the gap of international secession law, African secession with a new right of the [*620] African Union to intervene within a member State to restore peace and stability: p.257), and the history of secession of the Canton of Jura in Switzerland. An additional region-specific essay addresses secession and international law, Latin American style. In Chapter Twelve, Frida Armies Pfirter and Silvina Gonzalez Napolitano take an historical perspective dating from the 16th century “viceroyalty” onwards (p.378). This chapter in particular, presents an unparalleled lawful interpretation of this region’s history.

Antonello Tancredi’s essay on the “due process” of secession practice – despite the bustling activity in the footnotes and intermittent insertion of French sentences (pp.173, 183), is less successful.

Andreas Zimmerman’s installment covers the beguiling problems of secession and succession, analyzing what rules of State succession apply in regard to treaties. At the outset Zimmerman asserts that, traditionally “seceding States have . . . claimed not to be automatically bound by treaties concluded by their respective predecessor States” (p.213). As a result, readers may be forgiven for concluding that, “such successor States did not automatically inherit the contractual obligations” (of the former colonial power) (p.214). However, Zimmerman stipulates that, State practice post-1990 confirms (referencing ICJ judgment in 1997) that the customary treaty law ensures a corollary that treaties attach to the territory – running with the land so to speak – “automatically devolving upon the successor State” (p.214). The historical correlation of statements ensures this chapter is a serious page-turner.

The tenth essay in is supplied by Li–Ann Thio. Her contribution successfully wraps up secession in the Asia Pacific region. Despite separatist initiatives that threaten regional order, Thio elucidates how the international community is increasingly prone to recognize the “realities of secessionist attempts as a remedy where the government of the predecessor State committed . . . human right violations against the seceding unit” (p.300). Thio supports this statement with the example of Bangladesh, where “the UN did not immediately recognize Bangladesh but expressed concern for the gross human rights violations committed” (pp.305, 336). She later catalogues the configuration of territorial units by colonial powers and the construction of multi-ethnic States (in India, Indonesia and Sri Lanka) with the “attendant problems promoting co-existence.” Thio correctly interprets this as “partly a legacy of European colonialism” (p.312). The litany of complaints (from postcolonial States) is not all laid at the door of imperialism, for Thio only attaches part responsibility. She concludes her contribution, unequivocally stating that, “while one might hope that international law on secession is morally progressive, a minimal realism is warranted, given States” preoccupation with internal security and regional stability” (p.350). The most unambiguous example one could attach to Thio’s remarks is the equilibrium relating the US-China-Taiwan Triangle. (During Chinese [*621] President Hu Jintao’s visit to the United States on 20th April 2006, President George W. Bush reaffirmed to the world that he supports the U.S. “one China” policy.). Thio is incredibly conscious of the “potency of nationalism-related . . . issues of State fragmentation in the Asia Pacific . . . led by oppressed ethno-cultural minority groups within post-colonial States,” the corollary of which will “spark fears of political balkanization” (p.353). Thio’s writing (cross–disciplinary) is of the highest order and most comprehensible, utilizing a vast repertoire of sources (though one feels that Benjamin (2003, at 8–10) would have supplied valued added material).

The most superior chapter in the volume is the eleventh. Undergirded by unsurpassed (European) historical analysis this essay should be read first. Photini Pazartzis discusses the imposition of conditions (of both popular will and respect for human rights) providing the scaffold that is “internal self–determination,” the perquisite to external self–determination (pp.369, 372) – a most clear and scholarly exposition.

In conclusion, the contributors coherently instruct their intended audience that it would be erroneous to proclaim that secession violates the principle of State territorial integrity, for this term applies only in international relations. However, as the reader will rapidly become aware, politically–speaking, forcible attempts at secession are increasingly condemned as a threat to international security. Such condemnation in turn, undermines the effectiveness of a secessionist entity claiming statehood. Crucially though, this reviewer interprets “law” as little more than a scarecrow on the international landscape, and its logical function is, appropriately, that of a straw man.

Finally, Kohen’s edited volume is plainly written and more than satisfactorily organized. This tome is of huge significance to an audience of law and politics students and practitioners in their respective fields.

REFERENCE:
Barber, Benjamin. 2003. JIHAD VS. MCWORLD: HOW GLOBALISM AND TRIBALISM ARE RESHAPING THE WORLD. New York: Ballentine.

CASE REFERENCE:
NATIONALITY DECREES IN TUNIS AND MOROCCO, 1923, PCIJ, Series B, No. 4, p.24.
© Copyright 2006 by the author, Lee P. Ruddin.

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THE EXECUTIVE AND PUBLIC LAW: POWER AND ACCOUNTABILITY IN COMPARATIVE PERSPECTIVE

by Paul Craig and Adam Tomkins (eds). New York and Oxford: Oxford University Press, 2006. 384pp. Hardback. £50.00/$95.00. ISBN: 0199285594.

Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: podehnel [at] augustana.edu.

pp.612-616

THE EXECUTIVE AND PUBLIC LAW, edited by Paul Craig and Adam Tomkins, is a collection of eleven essays by legal scholars on executive power as viewed from the perspective of public law. Nine of the essays are nation studies, written by law faculty from the respective countries, including Britain, USA, three British Commonwealth nations (Australia, Canada and New Zealand) and four western European nations (France, Germany, Italy and Spain). One essay focuses on a sub-national executive (Scotland) and the final essay addresses executive authority in the European Union. The book is a rich source of information about particular aspects of executive power, though the points of emphasis are different from most American treatments of the subject. Perhaps the greatest strength of the volume is the way it develops the connections between administrative policy making and the public law of executive power.

Unlike many collections, the individual articles are consistent in structure and analysis, remarkably so considering the international scope of the volume. As Craig and Tomkins explain in their introduction, each author was asked to address “three sets of questions concerning, respectively, the definition, delimitation and accountability of executive power” (p.3). In most of the essays the first two questions are treated together. The authors avoided the temptation to write thematic or specialized essays and instead produced general overviews of these questions for each country. All of the authors consider political factors when analyzing the scope and accountability of executive power, but the discussion of politics serves mainly as a context for the legal analysis which is the main emphasis of the volume. The essays analyze written constitutions, constitutional conventions, statutory law, case law, and, where appropriate, the law of the European Union. That is not to say that the authors are legal determinists. Legal concepts and structures are depicted as contested and pragmatically flexible, and one is left wondering (as usual) just how much the law matters. As the editors note in the introduction, “Both executive functions and institutions have undergone considerable change in recent years and constitutional law has often labored to keep up” (p.5).

The book seems to have been written for a primarily European audience. The chapters vary somewhat in how user-friendly they are for readers not familiar with a given country’s institutions. In his article on Britain, Adam Tomkins is careful enough about defining terms to satisfy the needs of an advanced [*613] undergraduate, but some of the other chapters assume familiarity with institutions and events. Most of the articles also assume some fluency in legal terminology or, in a few cases, the technical language of public administration. The book is not a page turner, and potential readers might want to start with the Introduction and choose from the nation studies according to their interests.

The subtitle of the collection touts a “comparative perspective,” but that is lacking from most of the chapters. Beyond the excellent but short Introduction, the comparative analysis is left in the hands of the readers. Because of their parallel structure, the individual nation studies contain a great deal of potentially comparative material. It is a shame that the individual authors did not have a chance to read each other’s pieces before revising their own. Because the book lacks a conclusion, I found it quite helpful to re-read the Introduction after plowing through the case studies.

I will not attempt to summarize the substantive chapters but will note some of the major themes identified in the Introduction, adding a few comments of my own. The editors begin with the observation that constitutions (written as well as unwritten) generally fail to provide a definition of executive power. This is true despite the fact that separation of powers is an important public law concept in the various systems studied in the book, including the parliamentary systems that make up most of the cases. The delegation of legislative power and the assignment of quasi-judicial tasks to executive officials are widespread phenomena that have been handled in various ways. Although mechanisms of accountability sometimes encroach on executive power, the authors find more evidence of expansion of executive authority than intrusion on it. The intrusions are mainly reactions to the growth and diversification of executive power.

When it comes to defining the limits of executive power, Craig and Tomkins identify four broad approaches (p. 6-7). None of the jurisdictions, they point out, use an enumeration strategy. Constitutional grants of particular powers, where they can be found, are not exhaustive. What the editors call the “subordinate” approach is also unpopular. Here the executive is seen as the agent of the legislature, authorized to carry out legislation but endowed with no independent authority. (Several of the chapters posit this as an idealized integration of the rule of law with democratic legitimacy in a parliamentary system.) The subordination of executive to legislative authority generally fails, if it is tried at all. The widespread recognition of extra powers – variously called prerogative, inherent, or residual – reflects a general rejection, in practice, of the subordinate model. Despite this pattern, it is true as a practical matter that much of what the modern executive does is based on legislation. This reality lies at the center of what the editors call the “bits and pieces” approach. In lieu of a systematic theory, various executive powers evolve as the legislature responds, or fails to respond, to changing conditions. Finally, a “residual” approach defines executive power negatively as governmental authority [*614] that is neither legislative nor judicial. This model provides flexibility for the executive (perhaps too much) while allowing for doctrines that define, and perhaps protect the integrity of, legislative and judicial powers. Neither the “bits and pieces” nor the “residual” approach is easy to reconcile with the rule of law, but this problem may be ameliorated by the recent emergence in many jurisdictions of judicially enforceable bills of rights.

The analysis of the accountability of executive power is based on a fundamental distinction between political and legal accountability. Political scientists will find the discussions of political accountability to be superficial, and comparative analysis is limited by the fact that the United States is the only case of a pure presidential system. These discussions are nonetheless helpful in providing a context for the more extensive treatment of legal accountability. One example of this is the issue of ministerial responsibility. In some systems, cabinet ministers are responsible for maladministration in the bureaucracy under their supervision. This convention is counterbalanced by a tendency to see the executive as a unitary entity held directly to account by the people in national elections. In general, this debate raises important questions for the relations between political executives and the permanent bureaucracy. This relationship is in turn a significant contextual factor for the legal accountability of administrative action.

The role of sub-national governments is potentially important for both the political and legal control of executive power. The book contains an interesting variety of cases ranging from full blown federalism to recent experiments with devolution of power within formally unitary systems. Power sharing constrains national executives who must depend on politically independent regional officials for the administration of public policy. On the other hand, the superior fundraising capacities of national governments and the need for coordination where responsibilities overlap create opportunities for executive influence. The chapter by Paul Craig introduces a further layer of vertical integration brought about by the emergence of the European Union (EU). The structure of the Union provides several new, and unique, venues for executive politics. Unfortunately, I found this chapter to be confusing, though experts on Europe probably will not.

For me, the book’s greatest strength is its analysis of legal accountability. Delegation of legislative authority is a fact of life in the modern state, and this challenge to the democratically accountable rule of law has provoked vigorous, if diverse, responses. Judicial review of executive action is significant in all the systems studied, and it has recently expanded in several of them. These developments are unfolding in a context of growing significance of constitutional courts and rights-based jurisprudence.

The discussion of legal accountability is most fully developed in relation to administrative law. Some nations follow the lead of the US and have a general [*615] statute on administrative procedures; for others, procedures vary by policy area. The judicial response to the exercise of administrative discretion is a prominent topic in the book, and most of the chapters go into some detail on judicial review of rule making and other administrative action. In general, review centers on the legal authority for an action, adherence to procedural norms, and, to some extent, the substantive correctness of an action. There is considerable variation with respect to all of these, especially the latter. While judicial deference as to findings of fact is common, it is not universal. Substantive standards of review like rationality, proportionality, and equality recur in various jurisdictions. As the editors point out, one must go behind the doctrines to gage the degree of deference given to administrative actors (p.9). What several authors refer to as the “intensity” of judicial review is an intriguing concept, worthy of further comparative research.

The chapter on the US, by Ernest Young of the University of Texas Law School, is somewhat out of synch with the other chapters. To some extent this is inevitable given that most of the cases are parliamentary systems. Young’s chapter is brief on judicial review of administrative agencies, a subject covered in some detail elsewhere in the book. On the other hand, he emphasizes war powers and detention of terror suspects, topics barely mentioned elsewhere. Of course, the actions of the American President in these areas are of worldwide concern.

Young concludes with a rather strained argument about the effectiveness of constitutional structures that distribute governmental powers to various institutions. He distinguishes between a “separated powers” strategy that relies on textual enumeration of powers – with judicial enforcement – and a “checks and balances” approach that creates countervailing centers of power and institutional mechanisms that give each branch some supervisory authority over the others. He then contends that the domination of American federalism by the national government reveals the weakness of the separated powers strategy, while the continued existence of a “meaningful balance” between the branches of the national government shows the effectiveness of checks and balances. Young then argues that the Supreme Court has been relatively aggressive in constraining executive power in relation to the detention of terror suspects to compensate for the lack of legislative checks and balances in this area. On the other hand, the Court has been deferential with respect to War Powers because Congress has adequate checks.

This argument is not entirely persuasive. The fact that an enumerated powers scheme drafted in 1787 came into crisis in the 20th Century is hardly a sign of failure. The purpose of the original enumeration of powers in Article I, section 8, was to reconcile the framers’ wish to create an effective national government with the political reality that the states were not willing to share all of their powers. It was a success, and the essays in this volume show that more recent federal constitutions have adopted [*616] versions of the strategy of enumeration. Of course, “parchment barriers,” standing alone, are not sufficient to contain power (Madison, 1961). Enumeration, by its nature, assumes the existence of “countervailing centers of power.” Whether these centers of power must have some supervisory authority over each other in order to maintain a meaningful balance is an interesting question, but difficult to answer on the basis of the examples given. Fisher (2004) argues persuasively that in the area of war powers the balance between Congress and the President has swung decisively away from that envisioned by the framers. With respect to the detention of terror suspects, is not the Supreme Court a “countervailing power” seeking to defend its “supervisory authority” over the detention of prisoners?

Overall, THE EXECUTIVE AND PUBLIC LAW is a high quality collection that contains a great deal of information about legal responses to executive power around the world. The volume is particularly strong on the topic of executive-judicial relations. The material on the legal structure and accountability of administrative decision making should stimulate further comparative research. I do not expect that this book will have a wide American audience, but it is a good source for those who want the benefit of a comparative perspective on executive power.

REFERENCES:
Fisher, Louis. PRESIDENTIAL WAR POWER, Second Edition, Revised. Lawrence, Kansas: University Press of Kansas, 2004.

Madison, James. 1961. #48 from Alexander Hamilton, James Madison, and John Jay. THE FEDERALIST PAPERS. Clinton Rossiter, ed. New York: New American Library.

© Copyright 2006 by the author, David Dehnel.

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THE GIFT OF SCIENCE: LEIBNIZ AND THE MODERN LEGAL TRADITION

by Roger Berkowitz. Cambridge: Harvard University Press, 2005. 234pp. Hardcover. $49.95/£32.95/€46.10. ISBN: 0-674-01873-7.

Reviewed by Keith J. Bybee, Department of Political Science, The Maxwell School of Citizenship and Public Affairs, Syracuse University. Email: kjbybee [at] maxwell.syr.edu

pp.608-611

In his highly erudite new book, Roger Berkowitz identifies a fundamental problem at the heart of the modern legal order: we no longer connect law with justice in a meaningful way. Berkowitz argues that justice, historically understood as “an individual’s moving beyond himself to a higher realm” (p.x), has been almost entirely divorced from law. Rather than seeing law as linked to “an ethical project larger than themselves” (p.xii), modern individuals generally understand law to be a kind of game where rules are used to advance a wide variety of interests. In the context of this legal game, “justice” has been reduced to a matter of ensuring that the interests pursued by different individuals are balanced in a fair and efficient manner. Berkowitz devotes his argument to accounting for how the disjuncture between law and transcendent justice arose and to explaining what this disjuncture means.

Berkowitz’s book is a blend of law, history, and philosophy. This interdisciplinary approach makes for a complex book — but there are additional sources of complexity present as well.

Berkowitz notes that the separation between law and transcendent justice is largely unacknowledged. “We are not shocked,” he writes, “because we are in denial. We have not yet stared in the face the hard truth that the pale word ‘justice’ has lost its fire” (p.ix). As a result, Berkowitz must argue that the problems associated with the separation between law and transcendent justice have been hiding in plain view (this kind of argument is especially difficult to make given the voluminous body of writing on law and justice in the scholarly literature). Berkowitz’s argument is also complex because he finds that the English language lacks the necessary terms to capture law’s turn away from transcendent justice. He thus relies on Latin, German, and French equivalents throughout the book in an effort to express the difference between “law as justice, where justice is understood as an insight into a transcendent unity” and “law as justice, where justice has come under the sway of science [and] therefore [is understood as] the calculated outcome of a rule” (p.xviii). Finally, Berkowitz’s argument is complex because he claims that the fundamental-yet-unacknowledged estrangement between law and justice is the unanticipated result of work by Leibniz, Savigny, and others. As consequence, Berkowitz must explain the difference between what such figures intended their work to accomplish and what their work actually accomplished. It is a testament to the strength of Berkowitz’s book that he manages to [*609] produce a persuasive argument in spite of such complexities.

Berkowitz traces the origin of the disjuncture between law and transcendent justice to the European legal codification movement — a movement that established an understanding of law as a set of willed rules in need of reasoned justification. According to Berkowitz, it is because this view of law has largely replaced views connected to insight and tradition that we now conceptualize law without bothering about higher realms.

His discussion of legal codification begins with an analysis of Leibniz. Over the course of three chapters, Berkowitz tracks Leibniz’s efforts to develop an absolutely certain understanding of law based on what Leibniz took to be the first principle of science: “nothing is without a reason” (p.15). Following Leibniz as he applies this principle of “sufficient reason,” Berkowitz engages in a careful reading that frequently places him at odds with leading interpreters of Leibniz. Berkowitz argues that many commentators have misconstrued Leibniz’s commitment to legal science and, as a result, have mistakenly taken Leibniz to be an apostle of natural law or a theorist of justice. Berkowitz concedes that Leibniz thought “man exists for the sake of the best of all possible worlds willed by God” (p.53). But it is also true, Berkowitz argues, that Leibniz’s scientific jurisprudence placed an emphasis on reason that led law away from God in a way that Leibniz did not foresee. “Since nothing exists without a reason, nothing exists unless reasons are given for it,” Berkowitz writes. “All things, therefore, only exist insofar as they have a reason. Similarly, law must have a reason posited for it to exist. . . . As law retreats behind reasons and grounds, it loses its natural connection to any ideas of truth and justice except those that are given as its justification. Law threatens to become a means to any rational ends that legislators posit” (pp.51-52).

In the next four chapters, Berkowitz painstakingly demonstrates how subsequent codifiers advanced Leibniz’s scientific jurisprudence further down the road toward reasoned justification and away from insight, tradition, and God. For Svarez, the architect of the Prussian code of 1794, the justification for law’s authority was to be found in the fully rationalized will of the king. Savigny (a figure that Berkowitz connects with the German Civil Code of 1900) subsequently left behind the rational will of the sovereign and located the justification for law’s authority in a science of history. In turn, Savigny’s work prepared the ground on which the potential at the heart of Leibnizian legal science was fully realized by Jhering: “Divorced from any and all connection to an ethical reason or deeper ground, law emerges in its modern form as positive law; namely, as pure technical means for the pursuit of social, economic, and ultimately political ends” (p.141). Thus law eventually came to be “nothing in itself” (p.160).

The range and difficulty of the material that Berkowitz examines in his account of codification is extraordinary. He engages a large body of secondary [*610] literature. He provides careful readings of primary texts both famous and obscure, supporting his conclusions with his own translations from the original Latin, German, and French texts. The display of learning and the detailed analyses make for an impressive package.

Even so, there are several points in his argument where Berkowitz appears to pull up short. Early in the book, for example, Berkowitz enunciates one of his central claims: “Once law seeks to reassert its rightful authority through scientific guarantees of its certainty, the technique of law comes to overwhelm its morality. As a product of science, law is severed from its natural authority so that law itself ceases to make a claim on us; instead, law’s authority comes to depend on the purposes and ends for which it exists” (pp.6-7). Berkowitz reiterates this claim many times. Yet, in the end, he states the claim cannot be fully grasped “without a prolonged meditation on Heidegger’s texts from which it flows” (p.167; see also p.171, footnote 16). In my view, Berkowitz’s argument would be stronger if he attempted to explain himself in full, rather than assuring readers that understanding will emerge from what sounds like a mystical encounter with Heidegger’s work.

Berkowitz also could have devoted more time to examining the transcendent justice which modern law has left behind. Greater attention to the all-but-lost ideal of justice is warranted in part because it would help justify Berkowitz’s overall sense of loss. Berkowitz does not wish to return to a pre-modern time, but he clearly laments the position in which we find ourselves where law is pervaded by instrumentalism. Berkowitz’s lament should be weighed directly against the inaccessible nature of insight-based law. Many of the codifiers were, as Berkowitz notes, motivated to systematize not only by a desire to give the law scientific authority, but also by a desire to make the law more readily understandable to a larger group of people. The codifiers often failed, but their efforts to make the law more democratically accessible would seem to be worthy of praise. Yet Berkowitz appears to have doubts about democratic accessibility. He writes with regret that “the human will to clarify and to know has very nearly succeeded in severing law from its traditional and necessary connection to the ineffable” (p.xvi). It would have been helpful if Berkowitz had directly confronted the codifiers’ desire to open law to the citizenry and explained why it is necessary that law remain beyond the grasp of the individuals who comprise our heterogenous modern societies.

More attention to the vanishing ideal of justice also seems warranted because Berkowitz’s one extended discussion of transcendent justice seems to be in tension with his general description of the idea. As I have noted, Berkowitz links transcendent justice to the inexpressible and the unknowable. Yet, when Berkowitz tries to give a more specific sense of what justice looks like beyond realm of legal science, he points to sportsmanship and neighborliness. This is a curious comparison since what it means to be either a good sport or an upright neighbor does not appear to be [*611] beyond knowing or saying. It would have helped to clarify his argument had Berkowitz worked through his analogies in greater detail.

My critical remarks should not, of course, be allowed to detract from Berkowitz’s achievement. He has written a very fine book. Legal historians and legal theorists alike will find much of interest and value in his work.

© Copyright 2006 by the author, Keith J. Bybee.

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JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR & THE POLITICS OF PRECEDENT ON THE U.S. SUPREME COURT

(left) by Lawrence Baum. Princeton: Princeton University Press, 2006. 256pp. Cloth. $29.95 / £18.95. ISBN: 0691124930. (right) by Thomas G. Hansford and James F. Spriggs II. Princeton: Princeton University Press, 2006. 176pp. Cloth. $29.95 / £18.95. ISBN: 0691123543.

Reviewed by Stefanie A. Lindquist, Department of Political Science, Vanderbilt University. Email: stefanie.lindquist [at] Vanderbilt.Edu.

pp.603-607

Two new books from Princeton University Press deserve careful attention from scholars of judicial behavior. Although to differing degrees, both direct our attention to influences on judicial behavior that have been largely overlooked by researchers focused on theories of judicial decision making premised on the attitudinal model. In THE POLITICS OF PRECEDENT ON THE U.S. SUPREME COURT, Thomas Hansford and James Spriggs create a nuanced model of the Court’s interpretation of precedent that accounts for the justices’ need to legitimize their policies to the implementing population and to the public. In JUDGES AND THEIR AUDIENCES, Lawrence Baum similarly directs our attention to judges’ need for approval from various actors within and outside the courts on which they serve, including other judges, policy elites, law faculty, the public and the media. Thus both books expand the scope of our gaze beyond the narrow view of judges laboring in relative isolation to promote their personal policy agendas, to one in which judges are embedded in a larger system of law making and interpretation affected by multiple actors inside and outside the judicial hierarchy.

JUDGES AND THEIR AUDIENCES constitutes an impressive scholarly achievement in its expansive analysis of the existing literature and thoughtful presentation of evidence in support of its thesis. Baum argues that judges, like most human beings, are often sensitive to and seek the approbation of others within their social and professional milieu. This impulse to please and impress others has both a personal and instrumental dimension—but it is the personal dimension that interests Baum most. Certainly we would expect that elected judges consider the preferences of their constituencies for instrumental reasons related to reelection (Hall 1992), or that appointed judges on collegial courts might account for the preferences of their colleagues on the bench in order to garner a majority in support of their [*604] opinions (Maltzman, Spriggs and Wahlbeck 2000). These judicial considerations are clearly instrumental, in that they shape judges’ long term and short term strategies in pursuit of legal or policy goals. On the other hand, judges also may be influenced by their audiences on a more personal level and in a non-instrumental fashion. Thus judges on the U.S. Supreme Court may be sensitive to the media’s or the legal community’s evaluation of their opinions, as in the case of Justice Blackmun. Or they may seek to build their reputations by appealing to certain elites or interest groups, as in the cases of Justices Scalia and Thomas. In both these situations, it is hard to identify any strategic dimension to these behaviors even though the effort to satisfy or appeal to certain audiences may influence these justices’ actions on the bench. As Baum points out, Justice O’Connor was keenly aware of the impact of her pronouncements on the public and of public opinion regarding issues before the Court. Her abortion rulings explicitly attest to this sensitivity—perhaps stemming from her experience as a state legislator.

These examples are but a few of the more obvious cases in which judges’ personal, as opposed to instrumental motivations for approval from various audiences may be traced to the content of their judicial decisions. Baum’s book moves far beyond such anecdotes to sift carefully through the existing social scientific evidence on judicial behavior in support of his thesis. As in his previous work, Baum displays a mastery of the literature that is, in short, astounding; the bibliography is encyclopedic. Baum explores research in sociology, psychology, economics, law and political science in his discussion of audience influences on judges’ behavior. Concluding that judges in most circumstances have neither the time nor the inclination to engage in strategic action and that judges’ quest for good policy is probably not as paramount as currently depicted, Baum suggests that the dominant models of judicial behavior do not fully account for the range of observed behaviors on courts. As for policy objectives, Baum suggests that judges may receive more proximate or tangible benefits from audience approval than from policy successes. For example, Baum observes that “judges want colleagues [on the bench] to perceive them as cooperative, as good team players. Because judges gain nothing tangible from the content of their court’s decisions as legal policy, they may find it easy to yield some benefit of getting the decisions they most prefer for enhanced esteem from their colleagues” (p.57). Surely this interest in collegiality accounts, at least in part, for the low dissent rate in federal courts of appeals.

Of course, the rubber meets the road when it comes to testing Baum’s theories systematically. Baum provides ample anecdotal evidence that judges have a personal interest in pleasing some audiences, as well as some interesting systematic evidence that Supreme Court justices who move to Washington, D.C. seem more affected by the liberalizing “Georgetown elite” than do D.C.-based justices such as Warren Burger. Yet clearly the challenge lies in evaluating these theories empirically across multiple judges. Instrumental interests, such as whether judges anticipate and take into account the reaction of legislators, are easier to test. More personalized influences are harder to evaluate simply because they may be more idiosyncratic. As Baum points out, however, that a theory is difficult to test does not render it unworthy of evaluation. It simply requires more creativity. Baum’s book points us in the right direction: now it is up to the [*605] community of scholars to heed the call and attempt to consider these influences in their empirical models.

One more instrumental influence that Baum discusses involves judges’ attention to institutional legitimacy. Very early in the study of judicial behavior, Martin Shapiro (1981) brought this concern to light in his analysis of triadic decision making. Among judges’ tools to enhance institutional legitimacy is their rationalization of decisions using normative justifications. Hansford and Spriggs focus our attention on those normative justifications as a mechanism to promote the legitimacy of the Supreme Court’s policy judgments. In their brilliantly executed study of the treatment of Supreme Court precedent, the authors construct and test an elegant model of subsequent interpretations of those precedents by the Court itself and by lower federal courts. One theme runs throughout the empirical chapters: the vitality of a given precedent has an important effect on the manner in which later courts use that precedent to justify legal outcomes. That is, the justices and lower court judges recognize that vital precedent is a more effective tool for purposes of legitimating policy pronouncements.

The bulk of THE POLITICS OF PRECEDENT focuses on the Court’s own interpretations of existing precedent. Of central importance to the authors’ thesis is the relationship between the current, interpreting Court’s ideological distance from the existing precedent and the precedent’s vitality, operationalized as the difference between previous positive and negative interpretations of the precedent. Where the number is positive and large, the precedent retains greater vitality. That vitality is hypothesized to condition the influence of ideological distance between the precedent and the current Court. For example, even where a substantial difference exists between the ideological predispositions of the interpreting Court and the existing precedent, a vital precedent is still more likely to be cited positively in support of a legal proposition. On the other hand, where a precedent is ideologically proximate to the interpreting court, its citation is more likely to be treated negatively where the precedent is less vital. The story this theory tells is one in which the justices’ attitudinal responses to existing precedent are significantly conditioned by precedent vitality. In short, it is not all about attitudes. It is about attitudes in combination with the justices’ sensitivity to the manner in which they justify their decisions to the implementing audience and to the public.

Using a comprehensive database of all later Court citations to precedent decided between 1946 and 1999, the authors test their hypotheses in several well specified models. The variables of central theoretical importance are (1) precedent vitality, (2) ideological distance between the current Court and the existing precedent, and (3) a multiplicative term of the two. Where this multiplicative term is statistically significant, it reflects the conditional relationship between precedent vitality and ideological distance described above. The models also include more conventional control variables, such as the size of the [*606] coalition that decided a given precedent and the media coverage of that precedent. In most of the models tested, the authors find the conditional relationship originally hypothesized. This relationship holds true in models of positive and negative interpretations of precedent (and especially in the case of positive interpretations), as well as in models evaluating the likelihood that a precedent will be overruled.

The authors also test the impact of precedent vitality on lower court application of Supreme Court precedent. In the model of lower court positive and negative treatments of those precedents, the authors find that appeals court judges are most sensitive to the Supreme Court’s prior positive interpretations of its own precedents. Thus, precedent vitality is of significant import to lower court judges, especially to the extent that those judges positively cite existing precedent. And perhaps most interesting, their models indicate that, once precedent vitality is controlled, the vote margin of a given precedent is not related to lower court judges’ positive or negative interpretation of Supreme Court decisions. This is an important finding that contradicts the existing conventional wisdom that divided decisions reduce lower court compliance.

Hansford and Spriggs conclude that their study supports the notion that precedent operates as both an opportunity and as a constraint. The opportunity lies in the justices’ ability to interpret existing precedent negatively or positively so as to conform that precedent to their own ideological preferences. The constraint lies in their need to use more vital precedents to legitimize and rationalize their decisions as they create new precedent. In reference to the debate between the legal and attitudinal models, the authors argue that “[l]aw and policy are not irreconcilable features of the judicial arena, they are both important considerations that are inextricably linked to one another as the justices interpret and shape the law” (p.130).

Reading these books in tandem produces some useful “lessons” for members of the scholarly community. First, shifting the dependent variable to something other than liberal and conservative voting behavior can yield significant insights into judicial behavior. Baum makes this point explicitly when he encourages “[u]se of dependent variables that are not defined in ideological terms” to test the impact of judges’ audiences on their behavior (p.174). Second, these books both emphasize the notion that judges’ behavior is not purely policy driven, but rather must be evaluated in the light of other institutional and personal factors that may shape behavior beyond attitudes. In the case of THE POLITICS OF PRECEDENT, the influence of institutional factors (in the form of the importance of institutional legitimacy) has an instrumental or even strategic component: the justices recognize that to render their policy pronouncements most effective, they must cite vital precedent. Baum directs out attention beyond such instrumental effects to the more personal nature of judges’ very human desire for respect. In both instances, these are lessons well taken.

REFERENCES: [*607]
Hall, Melinda G. 1992. “Electoral Politics and Strategic Voting in State Supreme Courts.” 54 JOURNAL OF POLITICS 427-46.

Maltzman, Forrest, James F. Spriggs II, and Paul J. Wahlbeck. 2000. CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. New York: Cambridge University Press.

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

© Copyright 2006 by the author, Stefanie A. Lindquist.

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FREEDOM OF RELIGION: UN AND EUROPEAN HUMAN RIGHTS LAW AND PRACTICE

by Paul M. Taylor. New York: Cambridge University Press, 2005. 436pp. Hardback. $95.00/£55.00. ISBN: 0521856493. Paperback. $45.00/£24.99. ISBN: 0521672465. e-book format. $36.00. ISBN: 0511134088.

Reviewed by Stephen McDougal, Department of Political Science/Public Administration, University of Wisconsin-La Crosse. E-Mail: mcdougal.step [at] uwlax.edu.

pp.597-602

Whether Paul Taylor’s work is useful or mundane – indeed, whether it is good or bad – will (I fear) depend entirely on the commitments and perspectives of the individual scholarly reader. This is not because it focuses on “freedom of religion,” which is of greater importance than many U.S. academics might admit. No, my difficulty in labeling Taylor’s work stems from the somewhat balkanized manner in which socio-legal scholarship is practiced today.

In its content, the book is the product of a skilled and experienced international human rights barrister, written primarily for human rights lawyers. It dwells entirely within a standard Anglo-American tradition of common law legal reasoning, employing both the case method and the iconography of authorial intent in quite familiar ways. Thus, to US scholars of religious liberty, for instance, Taylor’s work might be of value as a positivist summary and analysis of UN and European law and legal doctrine, against which to compare similar issues in US jurisprudence.

But, I would guess that most non-positivist readers will instinctively re-interpret Taylor’s analysis into their own – law & society reformist, legal theory deconstructionist, critical race theorist, skeptical postmodernist – whatever! As an exercise in comparing European and International legal struggles in religious liberty, Taylor’s book is worth reading. But, it was a struggle for me – who (candidly) does not see much value in limiting one’s approach to a positivist paradigm – to see the larger politics of doctrinal development at work. The elements of such a political analysis are sprinkled throughout the three main chapters and especially in the footnotes, but the work cannot be described as a work of judicial politics.

Most readers will easily recognize a traditional form of scholarly legal narrative:

First, there are the authoritative texts – Article 18 of the Universal Declaration of Human Rights (1948), Article 9 of the European Convention on Human Rights (1950, and subsequent Protocols), Article 18 of the International Covenant on Civil and Political Rights (1976), and the Declaration on the Elimination of all Forms of Intolerance and Discrimination Based on Religion or Belief (1981) in its entirety. Taylor notes how these various documents have conflicting provisions. Yet, their existence as a source of an on-going politics of religious liberty is not within the scope of Taylor’s project. Nonetheless, Taylor never hesitates to criticize a decision addressing these conflicts when it deviates from his analysis and understandings. [*598]

Second, there are the debates of the international organizations responsible for creating those texts. Taylor treats the debates as the primary foundation for his arguments about their scope and application – and subsequently, for his criticisms of the rulings of the European Court. Taylor’s use of these debates is rather like “the Intent of the Framers” is used in US legal circles: a problem with the texts, having been identified in a case, is usefully resolvable by selective resort to the formal debates, thus creating certainties as to their meaning and application; thus resolved, we should just move on! (More on this point below.)

Third, there are the authoritative interpretations of those texts – i.e., primarily formal rulings of the Human Rights Committee and the European Court of Human Rights – further clarifying the application of the “constitutional” texts. Rulings create precedents, precedents create doctrine, and so on. Relying on scholarly arguments, his own logical formulations, and the precedents of the European Court, European Commission and the Human Rights Committee, Taylor lays out the formal legal landscape as he sees it. (More on this point below, too.)

One of Taylor’s recurrent criticisms is how the European Court has “deviated” from the trajectory of the Human Rights Committee’s rulings over the years. His analysis and arguments are quite good. Although he is not cited by Taylor (such would not be appropriate to Taylor’s project), H.L.A. Hart’s notions of “open texture” and prescriptions for the conscientious judge seem to underlie Taylor’s arguments. Whether this is a strength or a weakness, I will leave (per above) to the individual. I feel it limits Taylor’s usefulness for me, but not for all.

Taylor’s goal is reformist within a positivist tradition. He hopes that his analysis and evaluation “of apparent discrepancies within particular themes will help to expose the significant points of divergence...[and]...achieve better consistency between the United Nations and European Institutions” (p.6). These conceptual trends are then laid out, issue by issue, as read from the texts, and presented within a larger structure distinguishing claims arising from (a) religion conceived of as a personal commitment (the forum internum) and also (b) religion conceived of as a manifestation in individual or communal behavior (the forum externum).

Let me use one theme of the forum internum to illustrate. The ICCPR, Article 18 provides for “freedom to have or to adopt a religion of belief of [one’s] choice” (section 1); that no one “shall be subject to coercion which would impair his freedom of religion” (section 2); and further that manifestations of religion “may be subject only to such limitations as are prescribed by law and are necessary to protect...[among other things]...the fundamental rights and freedom of others” (section 3). The European Convention, Article 9(1), also provides that “this right includes freedom to change his religion” with the remainder essentially the same.

Taylor analyzes the issue of whether religious proselytism is protected by [*599] these provisions, or whether States can legislatively prohibit and punish proselytism. Relying on the ICCPR debates, he presents in summary form the arguments of “certain States” against giving proselytism full protection: some religious traditions treat a change of religion as apostasy; a change of religion might make one abandon obligations under a particular tradition’s religious law; maintenance of religion is essential to the “moral condition of the individual” in that being induced to change might be from personal weakness or credulity, not “legitimate intellectual or moral reasons” (Taylor quoting the Saudi delegate). He also quotes the Afghani delegate at length:

If an individual who had freely accepted a certain religion was told that he was free to change it, the idea was put into his head that he was believing in something which he could change if given the right to do so. Doubt would be instilled and his belief damaged. That would be tantamount to interference with his freedom of thought and conscience. (pp.44-45)

So, the debates diverged into notions of “proper” and “improper” proselytism, which (Taylor rightly notes) were never spelled out in any detail (pp.27, 66-67). The European Court’s decisions under the European Convention, which replicated the good-bad notion without more, are subjected to extended criticism by Taylor: “Unfortunately, the European Court paid lip-service to the right to manifest religion through proselytism, referring to it in the narrowest possible terms and in a way that did not adequately confront the true purpose of the [State] legislation” (p.69).

In passing, Taylor notes the historical roots, especially in non-Western nations, of the suspicion of proselytizing Christian missionaries. But, he merely discounts the reality of the problem, and attributes a lot to self-interested efforts by States to protect an official State Church, or to instill nationalism through shared religious sentiments. He reviews the debates on the matter quite well. But, the conclusion he draws is that the fears of non-Western delegates were overblown or exaggerated, again without anything more! More to my point that this is not a work of legal politics, Taylor notes how this issue of proselytism was part of the debates of each and every one of the international documents upon which he relies.

Here, then, is exactly the kind of problem of religious liberty that I can only view as politics – not law, and as requiring a political – not legal, solution. Taylor made his judgments as to the “problem” of proselytism. Supporting those choices from the debates, he is satisfied as how the matter ought to be adjudicated. He praises the Human Rights Committee and the Special Rapporteur – whose judgments are technically advisory – while reproaching the European Court for being “slow in giving acknowledgment to the complete range of manifestations of religion or belief that have long been recognized at United Nations level” (p.235), and for failing to “take into account...the different courses and guises of intolerance” (p.7). Consequently, in Taylor’s view, “the absolute, unimpugnable and fundamental nature of the forum internum has been undermined by European institutions through [*600] persistent avoidance of principles that permit the forum internum rights to be asserted” (p.202).

This pattern of analysis repeats throughout the larger part of the book: Text explained in light of Logic and the Debates, creating Meaning which has (or has not) been actually implemented by the various interpretive institutions. The specific matters considered by Taylor include mandatory automobile insurance, paying income taxes to support military activities, compulsory military service, compulsory pension laws, circulating anti-militarist literature at a military base, prisoners’ access to religious materials, State land use and registration regulations, misuse of priestly garb, state-controlled access to food and articles of religious ritual significance, along with lots of others. In most every instance, Taylor shows how the decisions of European institutions have shortcomings, engage in mischaracterizations of appellants’ actual legal claims, and so on – in other words, the politics of it all. In Taylor’s view, the Human Rights Committee seems far more generous and inclusive in its approach (p.221).

In all this, I found a standard, perhaps mundane, struggle for legal uniformity. Although presented as a comparative analysis, most of Taylor’s commentary is evaluative around an implicit hierarchy of value choices necessitated by the conflicts possible among the authoritative texts. This is not nit-picking on Taylor’s part, however; rather, it is his traditional professional task. But, without some attention to the politics, it is all too easy to read Taylor’s analysis as reflecting his value choices; and, even as I share those value choices, they are not acknowledged adequately as such by Taylor. Also somewhat traditionally, Taylor makes maddening use of passive verb forms wherever he articulates such a value choice, rather masking it linguistically as a choice.

Given the scope of Taylor’s professional project, my only real criticisms of this book lie in something beyond the author’s stated goals. How justified is that? Not much, normally. It is far too easy to throw stones at someone standing someplace else on the canonical landscape of socio-legal studies; “you didn’t study this like I study this” gets us nowhere, really.

On the other hand, I must share the two aspects of Taylor’s book that I feel severely limits its usefulness. The first I have discussed: the lack of much sensitivity within the narrative to the politics of his topic, issues and cases. The underlying – indeed, recurrent – problems of State control of religious commitments and practices are only mentioned. Yet, the political incentives for totalitarian regimes to control religious sentiments as an alternative source of loyalty, for authoritarian regimes to use religious fervor and/or hatred as a technique of political control – even in democratic nations, for fundamentalist religious groups to demand that the law of the State replicate some narrow, religiously-based view of reality (some would find an example in the United States with the current conflict over same-sex marriage) – these forces are not going away. Nor, will they be countered merely by the [*601] rulings of a committee of international experts or a panel of judges. Personally, I share in Taylor’s implicit hope for the efficacy of the Rule of Law, but as only one facet of the tremendously complex human problem.

My second extrinsic criticism is that, as I read it, Taylor’s view of religion is – well – hopelessly liberal. But, then again, so are the authoritative texts. Therein, the social phenomenon of religion is conceived as arising entirely from the choices and commitments of individuals; religious organizations are, then, the product of voluntary communities; everyone can claim to have “the true religion” and the State stays strictly neutral.

However compelling as an ideological vision (one which I share), this is not the only way religion is, in fact, manifested across cultures and societies, wherein the causalities are reversed: religion as a characteristic of a community into which the individual is socialized, moralized and thereby made competent. In this vision, maintenance of the community rests (ideologically, at least) in the maintenance of its religious traditions. In this view, therefore, proselytism can easily be interpreted as coercion, and its suppression can easily be justified as protecting “the fundamental rights and freedoms of others.” Taylor uses the debates to characterize this viewpoint fairly well. Yet, he never engages it, since perhaps he did not have to, given the tight analytical focus of his work. Nevertheless, this communitarian take on religion is far older and far more pervasive, in fact, than the modern liberal view.

These divergent perspectives on religion do not reflect any East-West or Christian-Muslim divide. They are inherent in the very phenomenon of religion (see, generally, Pals 1996). They lie at the core of the of religious politics in the United States (e.g., Fowler, Hertzke, and Olson 1999; Tanner 1992); “fundamentalism,” as an extreme form of the communitarian approach, is potential in most any religious tradition (Marty and Appleby 1994; cf. Rouner 1986); and claiming to hold “the truth,” fundamentalism does not compromise well with others. The politics, therefore, is more powerful than the law.

All together for me, therefore, Taylor’s work, although many readers will find it to be quite valuable, only examines the mountain tops of a cultural divide of tectonic proportions.

REFERENCES:
Fowler, Robert Booth, Allen D. Hertzke, and Laura R. Olson. 1999. RELIGION AND POLITICS IN AMERICA: FAITH, CULTURE AND STRATEGIC CHOICES (2nd ed). Boulder: Westview Press.

Rouner, Leroy S. (ed). 1986. CIVIL RELIGION AND POLITICAL THEOLOGY. Notre Dame, IN: University of Notre Dame Press.

Tanner, Kathryn. 1992. THE POLITICS OF GOD: CHRISTIAN THEOLOGIES AND SOCIAL JUSTICE. Minneapolis: Augsburg Fortress Press.

Marty, Martin, and R. Scott Appleby (eds). 1994. ACCOUNTING FOR [*602] FUNDAMANTALISMS: THE DYNAMIC CHARACTER OF MOVEMENTS. Chicago: University of Chicago Press.

Pals, Daniel L. 1996. SEVEN THEORIES OF RELIGION. New York: Oxford University Press.

© Copyright 2006 by the author, Stephen McDougal.

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NATURAL LAW IN JURISPRUDENCE AND POLITICS

by Mark C. Murphy. Cambridge: Cambridge University Press, 2006. 204pp. Hardback $75.00/£45.00. ISBN: 0521859301.

Reviewed by Walter J. Kendall lll, Professor of Law, John Marshall Law School, Chicago, Illinois. 7kendall@jmls.edu

pp.592-596

Nature law theory is like Twain, not yet dead; rather the growth in the number of books on the subject published over the last 50 years indicates it is quite alive and well: 282 in the 1950s, 486 in the 1960s, 493 in the 1970s, 557 in the 1980s and 694 in the 1990s. (Kainz 2004).

NATURAL LAW IN JURISPRUDENCE AND POLITICS, by Mark Murphy, is the third title on the growing Cambridge Studies in Philosophy and Law list. Additionally, he has contributed at least a dozen articles.

Do we really need another such book? Yes, and I both fear and hope many more. Yes, because there is a continuing need to understand the values, sources, and limits of political authority in the form of law. The fear is that too many of the books and articles are distractions, adding nothing of value to this quest. The hope is that there is another Occam to help us cut through the mounds of material to uncover just what these values, sources and limits are. Murphy’s book, while not for neophyte, does help cut through the fog on several important questions.

While there are many, too many understandings of natural law, in the words of Francis Oakley the “central intuition of the natural law tradition [is] that human beings through the diligent use of their reason do have access to norms of justice that are in some profound sense natural and universal” (Oakley 2005).

Murphy, in this book of analytic philosophy, defends two claims – one of natural law jurisprudence that “it is of the essence of law to bind in reason,” and another of natural law political philosophy, that “what makes law bind is its role with respect to the common good of the political community” (0.1).

In his earlier book, NATURAL LAW AND PRACTICAL RATIONALITY (2001), Murphy made a case for a “naturalist, objectivist, cognitivist, welfarist, anti-particularist, anti-consequentialist” view of natural reason. Naturalist in that the fundamental reasons for action (the basic human goods) are grounded in (human) nature; objectivist in that well-being is not fundamentally a matter of the person’s attitude; cognitive in that the basic goods are knowable; welfarist in that reasons for action are about the “well-being” of the actor; anti-particularistic in that the reason for action can be generalized; and anti-consequentialist in that the basic goods are incommensurable. To complete this briefest description of his earlier project, Murphy considers the basic human goods to be ten: life, knowledge, aesthetic experience, [*593] excellence in play and work, excellence in agency, inner peace, friendship and community, religion, and happiness. “Each of these is a fundamental reason for action, and together they exhaust all of the fundamental reasons for action” (p.96).

In NATURAL LAW IN JURISPRUDENCE AND POLITICS, however, he makes no claims about the specific character or content of the principles of practical reason or of the common good. He goes so far as to say “one could affirm a natural law jurisprudence or a natural law political philosophy while rejecting a natural law account of practical rationality.”

Unfortunately, in assuming familiarity with the case made in the earlier book, this book becomes quite abstract in many places, even to the extent that several arguments are presented in part in symbolic form (see eg. 5.3 – “let A and B be minimally acceptable, incompatible determinations of P, and let Φ-ing be the act dictated in A and Ψ-ing the act dictated in B. Suppose that one renders A as the determination of P, yet Ψ-s instead of Φ-ing. How could the agent have violated P by Ψ-ing, since Ψ-ing is the act dictated by B, which is ex hypothesis a minimally acceptable determination of P?”). Nonetheless the book is worth reading.

NATURAL LAW JURISPRUDENCE - The first two chapters are concerned with the validity or “lawness” of a law, which lacks a decisive reason for action of an “internal” or “of the essence” nature. A reason for action is decisive if and only if that reason renders doing a particular act reasonable and not doing that act unreasonable (0.1)

Murphy rejects what he calls the “moral reading” of the natural law thesis – that a law is not a law and there is no moral obligation to obey it if it is totally lacking in (moral) reason. He rejects this view for two reasons. One, it is a claim of moral philosophy, not analytic jurisprudence, and two because it is “excruciatingly uninteresting” in that everyone accepts it!

Rather he discusses “the strong” reading of the natural law thesis and rejects it for “the weak” reading. The strong reading finds a norm not backed by a decisive reason as lacking legal validity. The weak reading accepts such a norm as valid, but defective. As he puts it, “the strong reading says of the law what one would say of a two sided triangle; it’s not a triangle. The weak reading says of the laws what one would say of a duck that was not a skillful swimmer; the duck is a “defective duck” (1.1).

Murphy discusses three “routes” to the weak natural law thesis: a “legal point of view” offered by John Finnis; a “law as functional kind” argument described by Michael Moore; and a “law as illocutionary act” argument. Murphy finds Finnis’ view “too much like the uninteresting moral reading” (2.2). He however, finds both the functional approach and the speech act approach “successful” (2.3, 2.4).

Murphy concludes his discussion of natural law jurisprudence by “conced[ing] to the positivist the separation thesis and reject[ing] the [*594] stronger of the two jurisprudential natural law thesis” (2.6). In this rejection of the strong reading and defense of the weak reading Murphy briefly discusses the views of Brian Bix, Michael Thompson, Norman Kretzmann, Philip Soper, David Lyons, Peter van Inwagen, Brian Leiter, and of course Austin, Hart, and Fuller. This direct engagement with other jurisprudes and philosophers continues throughout the book and is perhaps its most valuable feature.

Murphy, at this point in his argument, has concluded that laws lacking in an internal decisive reason for acting (the natural law approach to practical rationality of his earlier book provides those reasons) are nonetheless law; defective, but still law.

NATURAL LAW POLITICAL PHILOSOPHY - Since “most of what we encounter in developed legal systems seems to be a contingent setting of norms. . . . Something made by folks (of limited intelligence and less than complete virtue the question becomes) how is it possible for (such) law . . . to be binding, to be the sort of norm backed by decisive reasons for compliance?” (2.7). This is a complex question that has generated an enormous literature. (Edmundson 2004).

To answer that question is “the agenda for natural law political philosophy.” In the next chapters Murphy defends an aggregative conception of the common good, shows how this concept of the common good provides the reason-giving force needed to make law binding, and sets forth a “consent theory” that provides needed help to contemporary natural law theories.

Murphy considers three conceptions of the common good: the instrumentalist, the distinctive good, and the aggregative. “On the instrumentalist view the common good consists of the presence of those conditions that are necessary or helpful means for members of that community to realize their own worthwhile ends. On the distinctive good view the common good consists in the obtaining of some intrinsically good state of affairs that is literally the good of the community as a whole (as opposed to simply the goods of the members of that community). On the aggregative view, the common good consists in the realization of some set of individual intrinsic good, characteristically the goods of all (and only) those persons that are members of the political community in question” (3.1).

Finnis has argued against an aggregative conception of the common good because it seems to support paternalism (using political authority to prevent a competent person from acting unreasonably) and to reject the principle of subsidiary (political authority is not to take over the provision of goods that lower-level associates are able to provide for themselves) (3.3). Murphy rejects this, basically because it appears to him “the wrong way around.” In his view, the basic or intrinsic goods determine the goodness, so to speak, of the instruments.

Murphy challenges Finnis and others holding his limited view of the common [*595] good with two questions. One, “aren’t some self-regarding actions so evil or debasing that they are the appropriate object of state action, even apart from their effects on specific other regarding obligations or on the moral environment more generally”? Two, “are there not other goods – perhaps goods of community – that are instantiated or at least fostered by placing citizens in the same boat as it were”?

Murphy rejects the distinctive good view of the common good as adding “nothing.” He argues that if it is something that makes a person well-off it is part of the individual’s good and thus part of the common good of the community considered in the aggregate. Further to the extent the distinctive good view “distances itself from the good of persons its normative hold…is loosened” (3.4)

Regardless of the understanding of the common good, the natural law account of the law’s authority holds that a failure to do as the law directs is a failure to do one’s fair share with respect to the common good. What is not settled is why the law gets to determine both the common good and my fair share. Why can’t I do so myself for instance? (3.6). The answer that has become “standard” among natural law theorist is the “salient coordinator account;” that is, practical reasoning persons recognize the need for an authority to coordinate action for the common good and that the law is the most salient candidate to do so (4.6).

Murphy defends Finnis’ presentation of this argument against Yves Simon and Joseph Raz (4.6) yet ultimately rejects it for the reason that desirability, even need, does not create authority. Thus, there is still a “gap” in the argument for the bindingnes of law. (4.7) Murphy offers a “non-standard consent” account to close the gap (5.5) but confesses that, while it explains to a significant extent the authority of law over citizens, it ultimately fails to establish that we are required to obey the laws of our political communities (5.7).

Murphy has a chapter on punishment and briefly comments on the question of the reach of the law if its bindingness is the common good: should family and friends receive priority; and how should people beyond the usual jurisdiction of a political entity be treated (the cosmopolitanism problem)?

So where are we at the end? The jurisprudential claim, that law not backed by decisive reasons is defective, is sound. Yet, there is something in the common sense of law that is over and above, or beyond, positive law. Certainly the international debate about torture, rendition, pre-emptive strikes, and other matters starkly present the question of whether there is anything “good governments” ought not to do. The argument that any norm relied on to justify such actions has to be backed by a decisive reason grounded in natural practical reason strongly suggests that the answer is yes, there are some things good governments ought not to do. Similarly, despite describing his effort as a failure, Murphy’s quest for an understanding of the common good, that in turn has sufficient normative status to be the decisive reason for compliance with law, succeeds in presenting a [*596] compelling if not conclusive case that, for most people most of the time, the laws will be viewed as such. In extraordinary situations the law with the common good principle, while defective, is strong enough “that the failure to honor it requires justification.” And justification and the resulting transparency are not insignificant forces pressing decision makers towards practical rationality.

All in all NATURAL LAW IN JURISPRUDENCE AND POLITICS is a worthwhile exploration of key issues in jurisprudence and political theory. One can look forward to Murphy’s future offerings.

REFERENCES:
Edmundson, William A. 2004. “State of the Art: The Duty to Obey the Law.” 10 LEGAL THEORY 215-249.

Kainz, Howard P. 2004. NATURAL LAW: AN INTRODUCTION AND RE-EXAMINATION. La Salle, IL: Open Court Publising.

Murphy, Mark C. 2001. NATURAL LAW AND PRACTICAL RATIONALITY. Cambridge: Cambridge University Press.

Oakley, Francis. 2005. NATURAL LAW, LAWS OF NATURE, NATURAL RIGHTS: CONTINUITY AND DISCONTINUITY IN THE HISTORY OF IDEAS. London: Continuum International.

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

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FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT

by Martti Koskenniemi. (Reissue with New Epilogue). Cambridge and New York: Cambridge University Press, 2006. 704pp. Hardback. £60.00/$110.00 ISBN: 0521838061. Paper. £27.99/$50.00 ISBN: 0521546966. E-book format. $40.00. ISBN: 0511138008.

Reviewed by Akbar Rasulov, School of Law, University of Glasgow, United Kingdom. Email: a.rasulov [at] law.gla.ac.uk

pp.583-591

GENERAL REMARKS
I should confess I do not know many books published by Lakimiesliiton Kustannus, but I am sure I know which was their biggest all-time success. It was a dark-blue paperback of about 600 pages, with no pictures on the front cover and no succession of eye-catching endorsement blurbs on the back – a very simple design – published just before the end of the Cold War. I know it because every serious international law library in the world has probably tried to get a copy of it, and because the new Cambridge University Press volume that lies on my desk today – an attempt, finally, to meet that demand – is not a second edition, but “only” a reissue with a new epilogue, and I know no other reissues that have been awaited in international law in recent years with as much eagerness as this one.

The original edition of FROM APOLOGY TO UTOPIA (FATU), by Martti Koskenniemi, was published in 1989. I do not know what was going through the minds of the Lakimiesliiton Kustannus directors when they signed the contract for it, but I am glad they did it. International law has been a more interesting field in which to work and international law thinking a more interesting job to do because of that book.

None of them, probably, had expected it to become that big in the end – within a decade of its release, FATU turned into one of the most talked about books on international law, a compulsory point of reference for everyone writing about the nature of the international legal order, an obligatory item on every serious international lawyer’s reading list, and the most famous CLS piece about the international law discourse ever – but they still must have been quite excited about it when they saw it for the first time. In hindsight, it probably had all the signs of a potential instant classic about it already then: a simple but ingenious thesis, a sufficiently innovative (but not too esoteric to become inaccessible to the uninitiated reader) approach, a finely balanced combination of the traditional doctrinal material and a provocative polemic, a catchy title, an easy to remember set of metaphors, a remarkably confident tone.

But the timing of its release, of course, was still far from ideal. The USSR had just withdrawn from Afghanistan. The Berlin Wall was about to come down. The Cold War was over. Fukuyama’s history started to end, and with it, inevitably, most of the truths international lawyers had learned to take for granted over the previous three [*584] decades. The discipline was entering a period of accelerated crisis. Schools and doctrines emerged and disappeared in a matter of months. Traditions that only a few years earlier had looked completely unassailable disintegrated before the eyes of their followers quicker than they knew how to reinvent themselves. The tide of history moved fast, and many good pieces of scholarship got drowned in it. FATU survived, and I can think of very few international law books that deserve this outcome as unquestionably.

I can also think of very few international law books that have been so frequently misread, denounced, or even defamed. Perhaps that says something about the degree of the passionate response FATU evoked in its audiences or the state of international law’s collective unconscious and the ideological content of its professional mythology.

Whether its author planned it or not, FATU managed to hit a very raw nerve in the international law profession. The “end of history” international lawyers did not take to its message easily. Contrary to the common (mis)perception, however, that message was not that international law was an entirely hopeless enterprise. FATU never said that international law did not exist or that it was only a self-enclosed illusion. It is not a work in postmodern deconstruction, let alone a manifesto of professional nihilism (there is far more Frankfurt School and Lévi-Strauss behind it than there is Lyotard or Derrida). What it did say was that the international law profession cannot be expected to perform a lot of those functions which, in the traditional view, it is normally expected to perform. International law is a structure of argument patterns, it said. Knowing how to put together an argument is not a substitute for knowing what to put in it, or, indeed, for knowing what is the right thing to say in the first place.

A good-faith gift from a practising international lawyer to his profession, FATU was never supposed to become a grand statement of legal philosophy. It was, and still is, “only” an amazingly candid – and equally insightful – attempt to understand the basic challenges facing the international law community in its day-to-day practice; to identify the roots of its pervasive sense of alienation; to show that the constant anxieties it faces in its professional life are not a sign of some unique curse or blessing, but part and parcel of the universal human predicament. Certainly, if the intensity with which its message was rejected by its addressees should be seen as a proof that its original intention had somehow misfired (which is not, of course, at all a foregone conclusion), then it probably was not a perfect attempt. But it still became one of the most significant contributions to international legal thought since the first wave of decolonization hit the shores of the UN-led world order, if not earlier.

Every 600-page narrative can be shown to have its flaws. FATU is not an exception in this regard. Despite the breadth of its object of investigation, it has some very noticeable lacunae, the international law of armed conflict and international human rights law being the two prime examples (and Koskenniemi will certainly be the first person to [*585] recognize that, p.14). (It is not clear what exactly would have changed in FATU’s argument if these lacunae had been covered, but, as some commentators have suggested, perhaps, there would have been less conviction in the certainty of its tone (Kennedy 1990, at 391). But when all is said and done, it is still one of the most important monuments of modern international law scholarship and C.U.P. must be sincerely commended for its decision to republish it. Few books have served its audiences as well as FATU.


FATU’S ARGUMENT
The key to understanding the structure of modern international law discourse, explains Koskenniemi, lies in the methodological separation effected by the international law profession between two hypostatized entities called “doctrine” and “theory” and its ideological relevance for the construction of international law’s professional identity. To put it simply: in the traditional view, good international lawyers do doctrine; bad international lawyers wallow in theory. “Doctrine” is something that is functional, concrete, sensible, and definite. “Theory” is something that is vague, highfalutin, abstract, and indeterminate. For every natural law theory, there is a positivist rival; for every “law is a social contract” thesis, there is a “law is the will of the dominant group” counterpart, and so on and so forth. International law, meanwhile, is a through-and-through practical discourse aiming to be objectively different from both the self-serving spin of power politics and the transcendental nonsense of the moral discourse (pp.24-28). Consequently, the traditional view concludes, beyond “doctrine,” there is no space for the international law project. To protect their basic professional identity, international lawyers must, thus, at all costs stay away from theory.

In a nutshell, this is the summary of the traditional strategy for international law’s professional self-determination, says Koskenniemi. The problem with it, unfortunately, is that it does not really work. First, there is the problem of (explaining) compliance. On the one hand, in the absence of a centralized political order, States and other members of the international community quite frequently tend to ignore existing international legal regimes. On the other hand, when they do not do so, it still often seems to be the case that what motivates them to comply is more a consideration of political expediency than a sense of legal obligation. A question immediately arises: how can one tell a juridically-compelled behaviour from a politically-compelled behaviour? However one goes about this, one must, it seems, at some point turn to a theoretical argument; but is that not exactly what one is never supposed to do as a good lawyer? Quite separately from that, there is also the problem of the doctrine’s inherent indeterminacy. No one who has practised international law at sufficient length, observes Koskenniemi, will fail to recognize that “most doctrinal outcomes remain controversial” (p.3) and not simply because “different people tend to mean different things even when they use the same language” (p.62). The reason is far more profound than that. Every valid [*586] doctrinal argument seems capable of being opposed with an equally valid counterargument. For every pacta sunt servanda principle there is a rebus sic stantibus counter-principle, for every “effective control” test there is a “legitimacy of government” counter-test, for every “non-retroactivity of intertemporal law” rule there is a “living law” doctrine, and thus ad infinitum.

In the absence of a single locus of sovereignty, the only plausible way in which international lawyers can resolve such conflicts in an objective manner would seem to be by invoking a higher-level principle: “the constitutional framework of the world order,” “the general principles of international law,” “the base values of human dignity,” and so on. The problem with that solution, however, explains Koskenniemi, is that for every higher-level principle a competent lawyer can also find an equally valid counter-principle. The spectre of the vicious circle quickly starts to emerge (as does that of Zeno’s paradox), and so a question eventually arises: why is international law so ubiquitously plagued by this vicious-circularity?

Koskenniemi’s answer to that is: mainly and in the first place because international law is essentially liberal in its origins. The traditional themes addressed by the modern international law project, from the self-determination of peoples to the rule of law in international affairs, are all liberal themes (p.5). Liberal themes tend to bring with them liberal problematics. The theoretical problematics of liberalism, however, as Roberto Unger has shown, are all fundamentally self-contradictory. Having borrowed its metaphysical apparatus from liberalism, the modern international law project, thus, “from the very start” was doomed to stumble into an endless sequence of vicious circles.

What makes the situation even more aggravated, however, is the fact that liberalism “does not accept for itself the status of a grand political theory. It claims to be unpolitical and is even hostile to politics” (p.5). Locked in a state of permanent denial, the international law tradition is constantly precluded from even being able to recognize its contradictions. As Marcuse would say, however, without an awareness of one’s servitude, how could one ever start planning one’s liberation?

The traditional way of thinking about international law “is singularly useless” for addressing the challenges raised by the practical experiences of the international law profession. A new frame of reference needs to be established, a new mode of analysis needs to be found, and Koskenniemi’s own preferences on that front are rather unequivocal.

The two main instruments which FATU suggests international lawyers should adopt in their self-reflective practices are what Koskenniemi calls “regressive analysis” (which is essentially another name for internal critique) and “native-speaker competence reconstruction.” Side by side with the classical critical project of searching for the latent doxic assumptions that enable the constitution of the modern international law [*587] discourse, one thus finds in FATU a very perceptible trace of the structuralist linguistic tradition (p.11).

The international law project, as portrayed in FATU, is essentially an argument-constructing apparatus governed by a langue-like structure. The structure in itself is completely historical – “[i]t has neither descended from heaven to determine what we can see in international life, nor emerged as an aprioristic construction of an autonomous individual” – but its social function is profoundly ideological. On the one hand, it has imposed on the international law profession a very particular frame of thinking about the life of the international society, replete with its blind spots and black holes. On the other hand, it has served to deny the essentially political nature of the international law project, strengthen the sense of international law’s objective identity (which it shapes in the likeness of the liberal ideal of legal formality), and, because it is inherently self-contradictory, furnish the means whereby every valid legal argument can be always criticized as political and subjective. The way in which the latter condition is produced is then what forms the immediate object of reference for the bulk of FATU’s narrative.

“There are two ways of arguing about order and obligation in international affairs,” observes Koskenniemi (p.59). There are also two ways of criticizing the international law doctrine (p.23). The arguments and the criticisms are as inseparable as the two sides of the same coin. The ultimate reason for this lies in liberalism’s schizophrenic insistence that international law must be both grounded in the free-willed consent of sovereign States (ascending pattern of justification) and binding on every individual State despite its immediate will (descending pattern of justification). If it fails on the former front, it will become a form of natural morality. If it fails on the latter front, it will turn into a mere front for power politics. The problem with this requirement, of course, is that there is no way, in the end, to satisfy it (pp.59-69).

From the ascending perspective, every trace of the descending pattern of justification is a sign of a utopian subjectivism because it rests on an aprioristic assumption about what is right, disconnected from the concrete reality of positive lawmaking. From the descending perspective, every ascending argument is likewise a sign of subjectivism (apology) because it privileges State will (i.e. subjective interests) over the objective normative code. Because the system sanctions the use of both perspectives, every proposed solution can be validly criticized as either utopian or apologist. Having undermined their opponents’ argument, however, the critics, once forced to defend themselves, can fare no better than those they criticized (p.65). As a result, the only way in which the discourse of international law can survive as a whole is by constantly oscillating between the two ends, moving “from emphasizing concreteness to emphasizing normativity and vice versa without being able to establish itself permanently in either position” (65). (Establishing some form of a majoritarian decision-making scheme could seem at the first sight a generally [*588] satisfactory solution to this problem. According to Koskenniemi, however, it would not survive the attack of an ascending critic (pp.63-64.))

In practical terms, however, what this means is that international law is intrinsically incapable of providing fully convincing substantive solutions to those problems with which it deals. At best, it can furnish a structure for making viable arguments, but never for producing foolproof conclusions. If international lawyers and their friends should then wish for such conclusions to be made, it follows, they must accept that the final act of resolution will always be an act of extralegal choice.

A different way of putting this is to say: international lawyers and their friends must stop hiding behind the façade of the legal argument and learn to take political stances, because, in fact, that is already what they have always been doing. It is just so, for their politics has been mostly brushed under the carpet and pathologically pretended away. But every time the international legal argument runs into an irresolvable contradiction between apology and utopia, it immediately comes out. The lawyers frown on it, push it into the shadows, and painstakingly paper over it, but it still keeps coming back in a myriad of little symptoms, as every act of judgment gets its sense of closure and substantiation from an unreflective recourse to contextual equity and an undefined sense of justice (pp.554-561). The only candid and professional thing to do, concludes Koskenniemi against this background, is then to face up to this ineradicable fact, accept it, and learn to live with it while steering clear of any sweeping politicization of the legal process (p.555).

This last suggestion is, probably, the weakest point in an otherwise very cogent argument. If politicization of legal argument is as inevitable as FATU claims it to be, why should international lawyers refrain from “big” political acts and stick to small-scale “contextual justice”? There seems to be no immediately logical reason for that conclusion, especially given that it does not guarantee “an open (uncoerced) discussion” (p.545; cf. Hale 1943). Or, for that matter, for the suggestion that “uncertainty and choice are an ineradicable part of [international lawyer’s] practice” “may be less a cause for despair than for hope” (p.515). Antinomianism, after all, has been traditionally associated not only with the bliss of epiphany but also with “fear and trembling” (Kennedy 2001, at 1158-1168).


WHERE TO FROM HERE? A CRITICAL OPENING
Predictably, the FATU argument was not well received in some circles. Some international lawyers saw in it an advance symptom of the postmodern nihilist corrosion. Others treated its commitment to rigor and coherence as a sign of wicked sabotage parading as false naïveté. In reality, the situation is probably far less dramatic, though, admittedly, not as simple as Koskenniemi’s language at times might suggest. For all his present insistence that his critics may have bent the stick too far – and a lot of them certainly did [*589] – by misreading his indeterminacy argument as a simple variation of the semantic truism that meaning is always constructed (pp.590-591), there is also a certain sense that he, too, may have bent the stick a touch too strongly.

Take, for instance, the point about interpretation. In the conviction appeal decision in the TADIC case, the Yugoslav tribunal opted for the broader interpretation of the concept of crimes against humanity, citing the guidance of the humanitarian considerations enshrined in its statute, instead of following the more traditional principle of criminal law in dubio pro reo, in which case it would have had to settle for a narrower meaning probably allowing the defendant not to be convicted on that count. “Again, the point is not,” explains Koskenniemi reflecting on the decision, “that this was ‘wrong’ or ‘political’ – the opposite interpretation would have been no less so – but that interpretative choices remain just that – choices” (p.585). In other words, here as elsewhere, the structure of the international legal argument allowed either option to be taken and thus, by implication, it supported neither of them.

But, stepping back from the aridity of the logical sequence, one may ask: was this really what happened in the dialectical fabric of the TADIC argument? Of course, in purely formal terms, both interpretative decisions – humanitarian considerations v. in dubio pro reo – could be described as “choices.” But then so could also the signing of a contract under duress or a full capitulation at the end of a war. The mere presence of an ontological possibility of choice is not in itself dispositive of the course of legal practice (Hale 1943).

To be sure, the point here is not to dispute FATU’s basic proposition that the logic of the international legal argument is essentially dual. It very obviously is. But – and, as his post-FATU works show, Koskenniemi will be the first to recognize this (p.610) – it is certainly not all that dual (or only dual), and this fact deserves to be acknowledged too, and not just under the rubric of “bias” (pp.606-607).

Given the state of modern international legal thought at the time of its original appearance, FATU’s implicit metaphor that the international legal argument was essentially like a coin (there is always another side to a coin and neither side is any more “privileged” than the other) was certainly immensely progressive. It helped reopen the blocked avenues of stagnating dogma, demystify a plethora of conventional wisdoms, and launch a series of new tremendously productive investigations. No one will be able to deny that. But every metaphor has a limited service area. Perhaps, it is time now to begin acknowledging – in order to sponsor even more critical legal inquiries – that the international legal argument almost never works like a coin; that it acts more like a buttered toast: released in a free fall, it may flip over several times, but it will almost always land the same side down. (And the question must then become: why?) Any suggestion that ‘that is just what toasts do’ would give toasts “way too much credit” (Kennedy 2001, at 1185). [*590]

Had the Yugoslav tribunal chosen the in dubio pro reo argument, it seems safe to predict, there would have been a great deal less discontent in the ranks of the legal profession. Of course, there would have still been a few voices here and there to point out the availability of the humanitarian considerations option and bemoan the court’s excessive traditionalism/formalism/conservatism, but the majority of the profession would have probably found the court’s choice significantly more acceptable, not least because it would have been in line with their expectations about the “buttered toast.”

Would recognizing this general probability in any way undo the court’s interpretative decision as an act of “politics” or “choice”? Obviously not. But it would certainly highlight the state of internal differentiation within those two instances which Koskenniemi marks with these words, and which on the surface of FATU’s argument sometimes appear as essentially homogeneous and thus outside the ambit of structural analysis.

Not all politics are the same. Not all choices are equally “choiceful.” Not all legal arguments come across as professionally competent or valid as their counter-arguments. It does not make much sense today for a critical structuralist to continue suspending this fact in a Husserlian epoche, even though, probably, it may have been indispensable when the langue of international law had to be mapped for the first time. But if we should really understand the structure of the international legal argument in its plenitude – if we are, that is, to fulfill the critical promise of FATU and its brand of archaeological inquiry – it seems, we must begin now to address the latent logic responsible for these differences as structuralists, for none of them are purely contingent or “only” a product of “ideological” or “institutional bias,” and their underlying mechanics is also an integral part of the international legal argument and, thus, a necessary object of the structuralist analysis.

None of this at the end of the day, however, should be taken as a sign that FATU’s progressive significance in the context of modern international legal thought is diminishing, only an indication that the shoulders of giants are always there to be climbed on, not just looked at. And one could certainly do far worse than choose FATU as that shoulder or thank Martti Koskenniemi for supplying it.

REFERENCES:
Fukuyama, Francis. 1992. END OF HISTORY AND THE LAST MAN. New York: Free Press.

Hale, Robert L. 1943. “Bargaining, Duress, and Economic Liberty.” 43 COLUMBIA LAW REVIEW 603-628.

Kennedy, David. 1990. “Book Review.” 31 HARVARD INTERNATIONAL LAW JOURNAL 385.

Kennedy, Duncan. 2001. “A Semiotics of Critique.” 22 CARDOZO LAW REVIEW 1147-1189. [*591]

CASE REFERENCE:
PROSECUTOR v. TADIC (Appeal against Conviction), Case IT-94-1-A, reprinted in International Law Reports, Vol. 124 (2003), p. 176.

© Copyright 2006 by the author, Akbar Rasulov.

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INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY

by Jeffrey Goldsworthy (ed). New York and Oxford: Oxford University Press, 2006. 384pp. Hardback. £50.00/$90.00. ISBN: 0199274134.

Reviewed by Mariah Zeisberg, Department of Political Science, University of Michigan. Email: zeisberg [at] umich.edu.

pp.576-582

The field of comparative constitutional law is now routinely heralded as emerging and cutting-edge. And, although claims that researchers need help orienting themselves are sometimes overblown (for, with the help of Jackson and Tushnet 2002, 2006; Jacob, et al. 1996; Koopmans 2003; the works published elsewhere by the contributors themselves; and the Internet, English-speaking researchers have access to almost all of the information treated in this volume), it is still the case that we are lacking a systematic source of academic commentary that links basic explanations of constitutional history and structure together with discussions about interpretive questions faced by high-court judges in different countries. The field of comparative constitutionalism still needs textbooks for researchers.

To that end, INTERPRETING CONSTITUTIONS offers essays describing the contours of constitutional interpretation by high court judges in six countries: the United States, Canada, Australia, Germany, India, and South Africa. The authors are prominent scholars of constitutionalism. Each country is discussed in relation to a common set of questions, and the analysis offered is highly descriptive, not evaluative or argumentative. The book focuses on judicial constitutional interpretation, but the political institutions of each country are treated in broad strokes, as is the political history of its judiciary. The decision to provide these background constitutional materials makes the book useful not only to public lawyers, but also to researchers of comparative constitutionalism as well as political scientists. Anyone who needs a basic understanding of constitutional structure and dominant interpretive issues in these countries will find the book useful – although, with the (very) high cost of the book, your only access to it might be through the library.

Each chapter examines the same set of issues. These include: the main contours of the constitution in question, with emphasis on its allocation of powers and its amendment procedures; the high court’s history and structure; the national legal culture; and main interpretive problems and methodologies, including overviews of significant constitutional decisions rendered by the constitutional court. Although some of the essays are lively, none are show-stoppers. The book does not offer large conceptual shifts, provocative new analysis, or newly-generated empirical evidence. The book’s highly descriptive orientation, and most especially the rhythmic hum created by its movement from constitutional history to political organization, to judicial structure, to interpretive dilemmas, repeated six times over, can contribute to a somnolent [*577] reading experience. But the organizational parallelism does allow for easy identification of main points of contact between the countries included, and it is true that the occasional excitement from noticing an unexpected congruence or line of possibilities is not only useful but also enlivening. This is a textbook for academic and legal researchers, and as a textbook, it succeeds.

The chapters are organized according to length of experience with the constitution under scrutiny—so the US, with the oldest Constitution, is first and South Africa is last. This organization works well, permitting the reader to see how constitutional experience in some countries affected ratifying debates and, later, interpretive practices in other countries.

The first essay, on the United States, may have the highest bar to clear, as it covers a country with which readers are perhaps already highly familiar. Given this familiarity, I am not sure how useful the inclusion of the US is for the stated purpose of the book. But the essay Mark Tushnet provides is a relatively engaging overview of the basic structure of the US Constitution, the institutional allocation of powers, and dominant modes of judicial interpretation, including a discussion of the countermajoritarian difficulty. He emphasizes the highly pragmatic and precedential reasoning of Supreme Court decisions.

One of the best elements of his essay is his emphasis on the replication of certain founding dilemmas throughout American interpretive practice, with special light focused on Clarence Thomas’ view of states rights (p.10). Some of these conflicts Tushnet does not treat as genuine dilemmas – for example, he mentions the framers’ “discomfort with direct participation by the people in making fundamental law,” but then drops the point (p.9). Given the emphasis on democratic participation in the constitutions of the other countries treated in the volume, the conflict between the framers’ “discomfort” and the democratic authority of the Constitution could be usefully developed.

In one (brief) part of his essay, Tushnet offers a highly contestable reading of Madisonian theory on separation of powers. With regard to separated powers, Tushnet believes that Madison offered a theory of political interaction, not interpretation, such that the Constitution can be said to ‘mandate’ whatever it is that the branches do. Political actors do not need to interpret their powers so much as exercise them, and the resulting pattern of interaction is the Constitution’s meaning on separated powers. This leads Tushnet to invoke Madison on behalf of the radical proposition that “political accommodations reached by the president and Congress simply are what the Constitution means with respect to war powers,” a proposition which Tushnet himself criticizes, because politicians will defend their conceptions of the powers they are accorded by referring to the Constitution’s independent language (p.21). In fact, Madison was not ignorant of this. He was well aware that elected political officials would elaborate the [*578] Constitution’s meaning, and that they would use the Constitution’s rhetorical resources to do so; as an elected official himself, he offered contestable understandings of the proper scope of the powers of various agencies. He did this in order to protect the Constitution’s division of powers. But Tushnet’s incomplete account of Madison’s thought is still useful, for it helps us compare Madison’s relatively amoralistic conception of interbranch dynamics with the highly normative conceptions of inter-institutional dialogue that are apparently present in the Canadian, German, and South African political experiences (pp.100-102, 204-206, 214, 275-278).

The essay on Canada by Peter Hogg emphasizes the role of the British Privy Council in establishing the groundwork for Canadian interpretive efforts (especially the Council’s obtuse treatment of federalism questions); the political and interpretive significance of several distinctive clauses of Canada’s constitution, including the ‘notwithstanding’ and the ‘limitation’ clauses; the dilemmas associated with the confusing Canadian strategy for dividing legislative powers between federal and national legislatures; and the strong powers of the modern Canadian Supreme Court. Hogg also offers important insights on the Canadian conception of constitutional dialogue, and the role this concept plays in augmenting not only judicial, but also regional power. It is clear that if judicial rulings are viewed as the beginning of a ‘dialogue,’ the Court may find itself more empowered to issue strong rulings; this is one reason for some to resist the idea of a Court as a ‘conversation-partner.’ But one compelling element of Hogg’s account is his discussion of how Canadian commitments to mutual consultation have strengthened regional powers in at least one crucial instance, the Secession Reference, which mandated that any separation between Quebec and the rest of Canada be conducted through a series of fair negotiations (pp.99-100).

Jeffrey Goldsworthy emphasizes the highly legalistic and formalistic cast to Australian jurisprudence. Not wishing to hamper the government too much in its efforts to settle Australia, constitutional framers there avoided protecting abstract rights, and so interpretive questions are primarily about structural questions. It also seems that Australian jurisprudence is confusing; Goldsworthy mentions that the opinions of the High Court are often very long, and rarely unanimous, making it “sometimes difficult to discern what, if any, general principle has been authoritatively decided” (p.114). This may place special burdens on his essay. Good organization may be one of the most important elements of a strong textbook, and the organizational scheme of this particular essay is weak. The discussion of history, constitutional structure, and complicated interpretive disputes are pulled together in ways that are sometimes baffling, and occasionally Goldsworthy makes claims about judicial interpretation without offering citations to the relevant cases (pp.115, 133).

I found quite useful Goldsworthy’s discussion of the role of foreign legal experience in Australian interpretive [*579] practice. Although the Australian constitution does not explicitly contemplate the use of foreign legal sources, Goldsworthy highlights how framers and, later, interpreters have made use of the constitutional experience of other nations, especially Canada’s experience of the Privy Council, American and Canadian understandings of separated powers, and British and American conceptions of rights. Goldsworthy especially relies on a tension between British and American interpretive traditions to frame his discussion of Australian interpretive practice. It is an interesting avenue, although it would be useful to have more discussion about the main contours of what Australian jurists believe those traditions to be, other than contrasting British ‘formalism’ with American ‘creativity’ (p.115). Because some Australian interpreters deny the difference between the two traditions, and because Goldsworthy believes some judges to have mistaken understandings of what those traditions actually require, the discussion around this point quickly becomes unnecessarily complex. That said, this essay offers two of the best stories in the volume, including a fantastic episode of judicial bungling brought on by judges who were confused about their own earlier interpretive positions (p.126), as well as an intriguing example of how formalism can disable judges from protecting constitutional institutions from creative statutory writing (p.138). These stories are teaching goldmines.

Don Kommers’ essay on Germany is organized, rich, and thematically engaging. Although he offers his own assessments, the essay provides enough space for readers to draw independent conclusions, and he provides the raw materials for scholars to rethink a number of public law intuitions. Most significantly, Kommers’ essay undermines the idea that highly aspirational constitutions place greater interpretive burdens on judges and political actors. This seems to be a great strength of the German experience with constitutional amendment. It is oriented towards maintaining strong normative aspirations in the legal order, but also towards ensuring that those aspirations are codified and expressed through positive law. The Germans’ commitment to rule by (written and particular) law does not seem to conflict with their equal commitment to the legal expression of highly abstract theories of right. Kommers’ discussion of Germany also undermines the distinction between formalistic and purposive interpretation – the German constitutional tradition seems to be heavily both. This work complicates our understanding of the meaning of the efforts of Australia, among others, to eschew normativity on behalf of formalism.

Kommers distinguishes between the German constitutional experience and that of other nations, especially through his discussion of the explicit German commitment to internationalism. He uses a comparison between American and German styles of judicial interpretation to distinguish between various ways of being legally ‘creative’ (p.179) and offers a highly engaging discussion of the German understanding of positive rights, a discussion which complicates the received understanding of any [*580] necessarily zero-sum relationship between the two (pp.183, 184). (Heinz Klug picks up the point in his essay on South Africa, whose positive rights jurisprudence is also quite sophisticated (p.309).) Kommers also offers citations to material that may be useful to researchers, including the provision of a list of leading German law journals (p.193).

S.P. Sathe authored a very substantive piece exploring what seems to be a highly energetic Indian constitutional practice. The Indian constitutional system is complex, both in terms of government structure and in terms of the rights that are protected. Sathe’s essay discusses this detailed, specific, and elaborate system of rights in relation to the need to protect social relationships of pluralism—so, for example, while freedom of speech and religious liberty are protected, the Constitution allows for the punishment of both hate speech and acts meant to ‘outrage’ the religious feelings of a class (pp.219-220). In the drafting stage, judicial empowerment was connected to a concern for preventing the ruling supremacy of religious majorities (p.228). The essay hence focuses a question that is in the background of all the essays about the relationship between pluralism and rights protection. Some recent work argues that judicial empowerment is related, not to the need to protect social pluralism and minority rights, but rather to the desire of dominant economic classes to protect their hegemonic interests (see Hirschl 2004). Yet the Indian Supreme Court has used its capacity to act legislatively through directives to address a wide range of human rights issues affecting minority groups (p.258). The empowered Indian Supreme Court has also been willing to involve itself politically to achieve results that it believes are constitutionally required, in one instance even arranging loans in order to dissolve a contentious legal dispute between riksha owners and riksha pullers (p.259). Does judicial empowerment mean, per se, that dominant political classes are protected? Or is such protection rather the function of legalism, from which courts may occasionally depart? Sathe’s description of the Indian Supreme Court calls out for more nuanced work about the role of empowered judiciaries in protecting minority groups.

Sathe’s contribution also reminds us that debates which may seem esoteric are, in some places, highly relevant political problems. For example, the constituent power controversy surfaces in India as a question about whether the Supreme Court has the power to hold constitutional amendments unconstitutional (pp.242-245). The relevance of this question is conditioned by the fact that Indian barriers to amendment are not only low, but also, in many cases, entirely possessed by the normal legislative assembly (p.221). Also, the increasingly tedious debate about whether judges ‘make’ or ‘apply’ law emerges as a fresh question through the Indian Supreme Court’s ruling that an unconstitutional constitutional amendment can nonetheless be prospectively affirmed for the sake of law and order (p.224). The episode is similar to one that Peter Hogg discusses regarding a Canadian judicial ‘fiat’ of holding a statute unconstitutional yet [*581] nonetheless valid (pp.97-98). Both episodes raise profound questions about the meaning of constitutional law in a way that simple disagreement about the merits of various judicial decisions does not.

Heinz Klug’s essay on South Africa offers a powerful rendition of the momentous constitutional history of that nation. Beyond the inherently compelling story of South Africa’s constitutional transition, of special interest is Klug’s development of themes raised in other chapters in the volume. For example, the South African Constitutional Court, like the Indian Supreme Court, may well be empowered to overturn constitutional amendments; Klug highlights the Constitutional Court’s explicit reference to Indian jurisprudence (p.300). Klug also discusses South Africa’s dialogic conception of constitutionalism. The South African Constitution designates principles of interaction between the national, provincial, and local spheres of government, requiring “co-operative governance” and “interregional compromises through political negotiation.” Klug relates this concept of dialogue to the need for a “culture of justification,” which he explicitly links to the German constitutional experience (pp.275-277). These three countries hence seem to provide promising territory for investigating the constitutional significance of inter-institutional dialogue and mutual justification. Is the dialogic, reason-giving view of constitutionalism only a theoretical pretext for strong judicial power? Canada, Germany, and South Africa all seem to have the most developed conception of dialogic powers, and these nations also have very strong judicial institutions. But in some cases, court-ordered ‘dialogue’ strengthens non-court institutions. South Africa’s Constitutional Court has held, for example, that different political organs have a constitutional duty to avoid legal proceedings against one another and to settle disputes through political means (p.298).

Jeffrey Goldsworthy’s final essay focuses on questions of judicial activism, restraint, creativity, and legalism; summarizes some of the main points of each of the essays; and considers different explanations for various interpretive philosophies courts have adopted. The reader will surely draw independent conclusions about the critical questions posed by the book; it is a strength of the volume that it provides enough information for readers to move in many different directions. For example, in considering the making of the constitution along with interpretive issues, the volume expresses the significance of the drafting process for establishing lines of interpretive difficulty later. Almost all of the essays help us think about both the difficulty and the necessity of referring to framers’ intentions, most notably Goldsworthy (p.126) and Klug (p.286). The book also creates a context for exploring how structures of constitutional representation relate to the nature of the high court’s involvement in resolving conflicts between levels and branches of government.

According to the right set of criteria, the book is a success. The essays are largely [*582] coherent in both structure and vocabulary; the authors manage to insert distinctive perspectives while keeping to their organizational discipline; and the essays support readers in generating ideas for new research directions. Although the book focuses on questions of constitutional interpretation, the comparative orientation and the scope of constitutional questions that each essay addresses will make it a valuable reference for political scientists and political theorists, not just lawyers. The book will prove especially useful to graduate students or researchers contemplating a shift in their primary research direction. We must only hope that similar books will emerge, at a lower cost, to expand the scope of the countries treated.

REFERENCES:
Jackson, Vicki C., and Mark Tushnet (eds.). 2006. COMPARATIVE CONSTITUTIONAL LAW, 2nd ed. New York: Foundation Press.

Jackson, Vicki C., and Mark Tushnet (eds.). 2002. DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW. Westport, Connecticut: Praeger.

Jacob, Herbert, Erhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, Joseph Sanders. 1996. COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE. New Haven: Yale University Press.

Hirschl, Ran. 2004. TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge, MA: Harvard University Press.

Hogg, Peter. 1997. CONSTITUTIONAL LAW OF CANADA. 4th ed. Toronto, Canada: Carswell Legal Publications.

Klug, Heinz. 2000. CONSTITUTING DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA’S POLITICAL RECONSTRUCTION. Cambridge, UK: Cambridge University Press.

Kommers, Donald P. 1997. THE CONSTITUTIONAL JURISPUDENCE OF THE FEDERAL REPUBLIC OF GERMANY. 2nd ed. Durham NC: Duke University Press.

Koopmans, Tim. 2003. COURTS AND POLITICAL INSTITUTIONS: A COMPARATIVE VIEW. Cambridge: Cambridge University Press.

Sathe, S.P. 2002. JUDICIAL ACTIVISM IN INDIA: TRANSGRESSING BORDERS AND ENFORCING LIMITS. New Delhi: Oxford University Press.

© Copyright 2006 by the author, Mariah Zeisberg.

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THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM

by Yochai Benkler. New Haven and London: Yale University Press, 2006. 528pp. Hardcover. $40.00. ISBN: 0-300-11056-1.

Reviewed by Debora Halbert, Department of History and Political Science, Otterbein College. Email: Dhalbert [at] otterbein.edu.

pp.572-575

My initial thought on seeing the title for Benkler’s book was that an update for Adam Smith’s THE WEALTH OF NATIONS was long overdue. It is no revelation that the networked world we now inhabit is substantially different from the world for which Smith argued claims that the “invisible hand” of the marketplace would create a public good by allowing self-interest to drive economic forces. That we should rethink the tenets of liberalism in terms of an information economy seems obvious, especially the role of self-interest and the concept of the public good.

Modern political economy, according to Yochai Benkler, must take into consideration the transformative impact of new communication technology, especially the Internet, on how we produce knowledge. Benkler’s liberalism describes a richer understanding of the public good created not as the by-product of self-interested individuals, but by what Benkler calls “social production” – where networks of individuals use technology to create a more democratic and free society. The crux of the book’s argument is that heightened individual autonomy and access to political and economic forces are possible because of the power of networks. While he does not ignore community (in fact, he suggests that liberalism has a difficult time dealing conceptually with it), the reasons for why a networked world is superior stem from Benkler’s desire to see the emergence of more markets and politics based upon individual effort and creativity.

Although he is generally pro-technology, especially regarding the Internet, Benkler is not a techno-utopianist. He argues that techno-utopianists who see the Internet as a perfect public platform are incorrect, but so are the technophobes who believe the Internet simply leads to increasing fragmentation and alienation. He seeks to strike a middle ground, arguing that the industrial media model of central control over mass communication fits nicely with authoritarian structures (p.197) and that the Internet allows for improvements in the public sphere specific to political communication that were simply not available prior to the existence of a network. While the open society made possible by the Internet is an improvement and should provide better access to knowledge, Benkler does not ignore the deep “digital divide” that exists between the global north and south. He dedicates a short chapter to the problems of development and access (Chapter Nine), though I think this issue needs more attention than what is covered here.

Benkler’s writing is at its best when he provides specific examples that enrich [*573] his argument about the power of an open form of social production. When making the argument that the public sphere is enriched by an open network, his story regarding the emergence of the Deibold electronic voter scandal from Internet margin to political mainstream is an excellent example of both the power of the network and the ways in which new voices are able to insert themselves into the public discourse in a manner never before possible (pp.225-233). The new public sphere, is not, however, an equal platform for all. Instead, Benkler nicely clarifies that hierarchy persists, with some voices being heard more than others. However, as Benkler argues, the network is more democratic than the model it is replacing, it offers new opportunities and should be judged not against some utopian claim regarding equal access for all, but rather against the mass-mediated model it will (hopefully) replace (p.247).

The book is divided into three parts. The first deals with economic issues related to what Benkler calls the “rise of social production” (p.122). In this section, he claims that social production is superior to the paradigm of private production. Benkler argues that the Internet allows for a type of decentralization not possible under the past mass communication model (pp.54-56). The model of social production is pitted against the protection of information by copyrights and patents. The “rise” of social production will, if allowed, replace the old proprietary intellectual property based model.

In Chapter Four, Benkler claims that social production is perfectly consistent with our current economic models and that we do not have to change our assumptions about human nature to understand the changes taking place in a networked economy (pp.91-92). To the non-economist, it is unclear why such great effort needs to be taken to preserve traditional economic theory. Perhaps these theories are simply wrong if they cannot account for social networks, gifts, altruism, the value of community, and all the other aspects of a social system where the individual is not the only unit of analysis.

Benkler is correct when he points out that social production is not “new” (p.48); after all, Peter Kropotin talked about social production using the term “mutual aid” in the nineteenth century. People spend a good deal of time outside markets creating networks of meaning and community (despite the incursion of markets into every aspect of American life). Benkler could have turned to work done by women as an example of social production. Liberal feminists have often argued that, if women were paid for their domestic work, it would amount to untold billions of dollars. Markets, in other words, are the thin gloss on top of a world ripe with “social production” – a world of gifts and networks. What the Internet has done is simply expand these networks beyond geographically defined areas and provide a more efficient method for communication and building what humans seem to do naturally – make social connections. What is not clear is why Benkler finds it necessary to justify social production within mainstream economic theory instead of simply arguing that these theories are flawed. Despite the placement of the [*574] argument in terms of conceptual systems, I agree with Benkler’s outcome – that the most democratic and free form of collaboration, knowledge production, and creative processes, emerge not from proprietary markets but from a world of social production where mutual aid is the norm.

Part Two looks at political economy and suggests that a cultural shift is underway that demassifies culture and places the possibility of creating into the hands of the many (pp.134-135). It is now possible to live a more “self-authored life” because of the Internet than it was in previous societies (p.139). This section makes a compelling argument for the value of the Internet to political freedom and individual autonomy and, as already noted, claims that while these new technologies are not a panacea, they are substantially better than the status quo.

While it is essential to take up issues of culture, development and distributive justice (which Benkler does), these are not the central focus of the book, and as a result the chapters tend to be short and less well developed than the argument about political economy. I would like to see the cultural and development issues taken up at greater length. Despite his ties to liberal theory, his work could be enriched by using the critical theorists and their critique of mass culture. Given the depth of the argument and attention to detail in the rest of the book, the chapters on culture and development fall a bit short.

Part Three illustrates the problems facing social production and the methods used to capture the wealth of social production and privatize it. He concludes the book by asking the reader to understand their role in creating a more open and democratic culture. Benkler sees the transformation that can be wrought by networks as essential for democracy, but not inevitable. The information economy could produce a more free and democratic future (p.471), but only if appropriate choices are made. Unfortunately, it seems that the choices that would lead us towards a more free and democratic world are not the most compelling to those who benefit from the status quo. Benkler convincingly argues that the possibilities of greater freedom and democracy are at this very moment losing out to a system of privatization and proprietary networks. In fact, as Chapter Eleven outlines in great detail, the battle is being lost on virtually every front. Industries seeking protection are using government to close off the opportunity for open innovation in favor of their privileged position within the economy.

While his examples are galling, perhaps the most flagrant violation of the public interest includes the passage of state laws prohibiting the creation of municiple wi-fi networks at affordable prices for all residents of a city area (in other words, the creation of an open public network). Thus, city residents in Texas cannot create local high-speed public networks because the Texas legislature at the request of Southwestern Bell (SBC) prohibited such networks (p.407). Similar laws exist around the country, prohibiting local areas from providing what would be a very valuable service to citizens [*575] and, of course, ensuring that the only available alternative is a for-profit monopoly. Other examples abound at all layers of the information infrastructure, which, Benkler notes, includes the physical, logical, and content layers (p.392). Thus, while Benkler lays out a compelling argument for the value of an open technological infrastructure and a cultural environment set free from the restraints of copyright law, his conclusion suggests that the forces seeking a more open network are losing. Suddenly, I want to believe that the forces of history will sweep in and move us towards greater freedom, since otherwise it is difficult to see who will do the moving.

Benkler suggests that a “free culture” social movement is developing (p.455). He argues that “there is a widespread, global culture of ignoring exclusive rights” (p.456), where even the most oppressive of proprietary systems will not totally squash free culture. However, given the political and legal control those seeking proprietary systems exert, I wonder if perhaps the forces of resistance might need to be stronger.

THE WEALTH OF NETWORKS details the emergence of a networked society that if allowed to flourish will produce more value than does a proprietary system. The evidence demonstrates that networks allowing free exchange absent intellectual property barriers are superior to those that cordon off knowledge with patents and copyrights. His argument is well developed and thoroughly supported. I have read work by Benkler in the past and have always admired the clarity with which he writes and the power of his ideas. This book deserves to be read beyond the scope of the few scholars interested in intellectual property issues. While it appears the book owes its intellectual debt as much to Kropotkin as to Adam Smith, Benkler’s unwavering support for modern liberalism is sure to appeal to those who make policy and reap benefits from the status quo. Despite its cautious nature on the theoretical front (Benkler is not arguing a radical point of view), the book is sure to spark controversy and discussion. Given the imminent threat to the openness of the Internet and all the benefits that come with that openness, one can hope that many people read this book and begin, as Benkler suggests that they do, to “understand the normative stakes of what we are doing” (p.473).

© Copyright 2006 by the author, Debora Halbert.

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