Vol. 16 No. 12 (December 2006) pp.957-959
SEEKING CIVILITY: COMMON COURTESY AND THE COMMON LAW, by George W. Jarecke and Nancy K. Plant. Boston: Northeastern University Press, 2006. x + 220pp. Paper $19.95. ISBN: 1555536662. Cloth. $26.95. ISBN: 1555535763.
Reviewed by Robert Dingwall, Institute for the Study of Science and Society, University of Nottingham, UK. Email: Robert.Dingwall [at] nottingham.ac.uk.
SEEKING CIVILITY is a curious book, from which I derived a certain amount of enlightenment and not a little entertainment on a couple of train journeys. While it is not particularly targeted at an academic readership, it does engage an issue of wide interest, namely the degree to which law is an appropriate means of regulating everyday interactions between citizens. This has become a high profile matter in the UK under the present government with its self-styled ‘respect’ agenda and attempts to define and regulate anti-social behavior. The result has been the remarkable legal innovation of the ASBO (Anti-Social Behavior Order) which courts may grant on a civil standard of proof but whose breach attracts criminal penalties. Considerable numbers of truculent teenagers in poor and minority neighborhoods have now collected these trophies, along with a growing number of their parents, without making any obvious and demonstrable contribution to the improvement of civil order so much as shuffling the problem along to another housing project or inner city neighborhood, whose troubles are exported in return. In a parallel move, neighborhoods may also be subject to Dispersal Orders, authorizing the police to move on, under sanction of arrest, groups of teenagers who are hanging around on the streets doing the kinds of things that teenagers do to annoy upright citizens – wearing hoodies, swearing, jostling passers-by and looking intimidating.
Despite the enthusiasm of the United States for imprisoning its citizens, these ingenious legal devices have yet to cross the Atlantic. Indeed, I suspect that they might be considered rather unconstitutional in a country whose courts sometimes take a more robust view of the liberties of its citizens than does its government, or mine. In the absence of state action, irritated citizens must rely on their private initiatives through the civil law. George Jarecke and Nancy Plant survey the range of legal means that the ancient traditions of common law offer to resolve interpersonal friction. The chapters range over battery, trespass, nuisance, blasphemy and defamation, with an engaging selection of colorful cases that are well-explicated to demonstrate the authors’ arguments. The book is consistently well-written and clear in its exposition, although I do not have sufficient knowledge of US law to determine whether it is invariably correct.
Where I have more problem is in my uncertainty about the audience for whom the book is written and what its intended outcome might be. There seem to be several different agendas running through the chapters. [*958]
One is the extent to which the US is a particularly litigious society. This is a central topic for law and society scholarship, although my reading of the consensus is that it is not and that the really interesting questions now are trying to understand why people think that it is. If there is not a ‘compensation culture,’ whose interests are served by promoting that belief? Jarecke and Plant point to the antiquity of most torts and the precedents to which the common law refers. Citizens have been annoying each other since the thirteenth century and seeking remedies from the courts, which, in turn, have continually revived and respecified these historic concepts to take account of new social, economic and cultural environments. However, the authors also stress that the courts do not do this job particularly well and often fail to achieve closure on disputes, except in a temporary sense that a judgment is filed. Parties often fail to collect compensation or to enforce the court’s decision. Neighbor disputes, more often than not, are simply resolved by one of the parties giving up and relocating.
The second theme then is the inadequacy of the forum. Courts cannot make people behave more nicely to each other. Indeed, judges are so well aware of this that they are actually quite reluctant to get involved in cases of this kind, and their rulings consistently stress that citizens of the US are expected to put up with each other to a considerable degree before the courts will intervene. The constitutional liberties of citizens include the liberty to annoy each other quite a lot because this is regarded as preferable to the regulation of speech or encroachment on private property. Travelers on the New York subway experience technical battery every day, but the courts would reject without hesitation any suit that did not contain some element of exceptional aggravation: being jostled is a fact of life in the modern world and we must just get used to it. Jarecke and Plant rehearse the familiar arguments about the limits of the adversarial process – its costs, its tendency to deepen conflicts, and the degree to which lawyers become sucked into the emotional engagements of their clients rather than acting as rational counselors. The history of neighbor litigation, in particular, is riddled with suits whose costs are out of all proportion to the economic value of the issues at stake.
So far so good. But what can we do about all of this? Here the authors are much less convincing. There is a running argument with Stephen L. Carter, whose book CIVLITY I have not read. From Jarecke’s and Plant’s account, this seems to have argued that US citizens have become increasingly horrid to each other but that this could be solved if they all went to church more often. Jarecke and Plant reject the historical argument: Americans have always been horrid to each other, and this only seems to be more of a problem because there are more Americans around. This reminds me a little of the observation by the British criminologist. Geoff Pearson, that young people were always better behaved thirty years ago, whether the commentator is writing in 2006 or 1906. They also reject the remedy. A more diverse society cannot impose uniformity of religious belief [*959] and, in any case, the diversity of church affiliations seems to be as likely to cause community conflicts as it is to contribute to their resolution!
If we cannot rely on God, what about ADR? The authors are not very enthusiastic about mediation either, rightly pointing to the difficulty of finding affordable neutrals and motivating parties to make use of them. This only seems to be possible with a degree of compulsion from the courts that rather undercuts the feasibility of producing a mediated settlement from parties who are not only rancorous with each other but now have cause to be rancorous with the court that will not hear their case until it has been mediated.
Finally the authors turn to the new US panacea, the spirit of 9/11. This seems rapidly to be assuming the same iconic status as the Dunkirk spirit or the London Blitz in the UK, a time when we all pulled together as a community. Of course we didn’t – Londoners were as good at looting bombed-out buildings as they were at making tea for the homeless victims but we remember one and not the other. No doubt historians of the next generation will find numerous stories of cowardice, opportunist crime and selfish behavior associated with 9/11. In the meantime, though, it remains a good rhetorical peg on which to hang the authors’ aspirations for an America whose citizens tried to be nicer to each other, an aspiration that is recurrently undercut by their evidence of the deep historical streak of interpersonal nastiness that citizens can also display. Indeed, the authors themselves concede that their picture has an element of nostalgia for an historical moment before the present US administration squandered the goodwill of its people and allies in pursuit of its sectarian agenda.
On the whole, this is a book that has better questions than answers. It could be quite an entertaining text for a freshman class in pre-legal studies because the cases are a lot of fun and should provoke lively discussions, especially given the authors’ skepticism about many assumptions that incoming students are likely to take for granted. There are genuine questions about how diverse and multi-cultural societies promote civil order. This may not be cutting-edge law and political science, but the audience for material at that level is quite limited. SEEKING CIVILITY opens up serious issues in an intelligent and user-friendly way. Our legitimacy as scholars can always benefit from bridge-building of this kind.
Carter, Stephen L. 1999. CIVILITY. New York: Harper.
© Copyright 2006 by the author, Robert Dingwall.
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Seeking Civility: Common Courtesy and the Common Law