STUDIES IN LAW, POLITICS, AND SOCIETY: VOL. 28

Vol. 14 No. 4 (April 2004) pp.267-271

STUDIES IN LAW, POLITICS, AND SOCIETY: VOL. 28, by Austin Sarat and Patricia Ewick (eds.). Amsterdam: JAI, 2003. 188 pp. Hardback. $90.00. €90.00. ISBN: 0-7623-1015-4.

Reviewed by Margaret Hrezo, Department of Political Science, Radford University. Email: mhrezo@radford.edu

STUDIES IN LAW, POLITICS, AND SOCIETY: VOL. 28, as was its predecessors, is a compendium of articles attempting to excavate the law through an interdisciplinary approach. The thread unifying this volume’s six articles is that all are grounded in some aspect of the postmodern aesthetic.

The book’s first section focuses on two problems of interpretation in democratic systems. In “Revisiting Constitutional Interpretation: A Comparative Perspective on the American Debates,” Michael Moore applies hermeneutics to the never-ending controversy over interpretivism and non-interpretivism. Both, he argues, are closed approaches to interpretation. They agree that “what makes a decision definitive is that it is legitimate, and what makes it legitimate is that it was arrived at by using the correct method. Implicit in these theories is the idea that the correct method of interpretation is self-justifying” (p.5). According to Moore, the use of such closed theories makes it difficult to see any other possible “solutions to the problems of democracy” (p.6). Thus he advocates the use of hermeneutically open theories. Moore suggests that both the Canadian and Australian legal systems fall somewhere in between interpretivism and non-interpretivism, although neither offers a consistent example of a hermeneutically open system. He then examines five “open” approaches exemplified by Stanley Fish and Dennis Patterson, Owen Fiss, Joel Bakan, Philip Bobbitt, and Joseph Singer. In all these theories “inevitable disagreements about principle can be overcome if there is sufficient cohesion around the other elements of collective life” (p.25). This article’s strength is to pull attention from the much overused and maligned terms interpretivism and non-interpretivism and provide an important and commonsense insight into a more fruitful line of inquiry. The article’s weaknesses are its penchant for hiding the commonsense in lots of fancy words and the comparative section. The examination of the Australian and Canadian systems is interesting but within this particular article serves as a nod to empirical study rather than as an integral part of the overall argument.

A second democratic problem explored in this section is that of majority-minority districts. Yasmin Dawood argues in “Minority Representation, The Supreme Court, and the Politics of Democracy” that “rival visions of democracy are often at the heart of the apparent incoherence that marks the Court’s adjudication of minority representation” (p.35). She refers to the competing versions of democracy as “Individualist Democracy” and “Democracy as Power.” Dawood argues that the majority in SHAW v. RENO adopted an individualist model that denies legitimacy to any specific recognition of racial groups in the districting process. Democracy in this model represents the interests of individuals. Paradoxically, [*268] however, the opinion also acknowledges the reality of minority vote dilution and allows for some group recognition within that context. The Court here considers the key element of “Democracy as Power”-the “imbalance in political power between the dominant (white) majority and a less powerful (black) minority” (p.36). In order to explore this paradox, the author develops a concept she calls “Symbolic Democracy.” This symbolism can work both ways. If a district is extremely bizarre in appearance, then the onus of proving its legitimacy is on those who drew it. They must prove either that it represents individuals rather than groups or that there is some compelling state interest in its being drawn the way it is. On the other hand, “a democratic process that hardly ever results in the election of an African American APPEARS illegitimate” (p.60) as well. Some accommodation must be made, and this, Dawood argues, explains the Court’s recognition of the Voting Rights Act. This act “symbolizes democratic inclusion and legitimacy” (p.64). Thus, although it allows for a consideration of race that on its face appears incompatible with the theory of “Individualist Democracy,” the Court cannot declare it unconstitutional without undermining “the legitimacy of the democratic system itself” (p.64).

This is a helpful argument that the author does not always present as clearly as she could. The author is at her best when reading the case law. She does an exemplary job of textual analysis and has pulled a great deal out of her reading that will assist those who study this area of the law. Also laudable is her assertion that legal discourse is a “rich, and often overlooked, source of political philosophy” (p.37). However, her political philosophy is not as good as her constitutional law. One needs look much further into the heritage of liberalism than John Rawls and Ronald Dworkin in order to build the description of “Individualist Democracy” that fits Dawood’s argument. Her discussion of “Democracy as Power” has the same problem. Here she relies on I. Young, A Phillips, and M.S. Williams, whom she identifies as Communitarians. Other Communitarians-e.g., Michael Sandel, Amitai Etzioni, and Jean Bethke Elshtain-are not likely to argue that “socially and historically disadvantaged groups should be ensured representation” (p.51). The author needs a much more thorough grounding in the two theories upon which she purports to rely.

The second section (“Missing Persons”) is more problematic. “Accounting for Absent Bodies: The Politics and Jurisprudence of the Missing Persons Act” returns us to the Vietnam War. It compares the Missing Persons Act of 1942 with The Missing Service Personnel Act of 1995. Thomas Hawley’s basic argument is that, rather than reflecting a genuine legal problem, the 1995 Act reflects America’s loss of faith in our government’s credibility. “As the material standard by way of which that explanation is secured, the recovered body becomes the unimpeachable evidence capable of adjudicating not merely all questions concerning the fate and the eventual whereabouts of missing service personnel but also the veracity of the government’s version of these events” (p.88). I couldn’t agree with him more; but this is not anything resembling a new insight, especially to those who lived through the war.

[*269] “Surviving Law: Death Community Culture” by Patrick Hanafin, on the other hand, is an interesting piece offering much to think about. In the end, though, his case is not particularly convincing. He goes too far in saying that the law “attempts to manage death…in order to give the illusion that nothing escapes its regulatory grasp” (p.98) and that “The Court in adjudicating on an issue like physician-assisted suicide is merely performing its part in the biopolitical management of the population” (p.102). That level of cynicism escapes me. The basic premise that survival is the meaning of life also escapes me. His analysis of WASHINGTON v. GLUCKSBERG does add to our understanding of physician-assisted suicide, especially his observation that the various opinions illuminate the many different strains of thought on this issue present in American society. However, his discussion of the overriding issue will make sense only to the truly nihilistic. In it, assisted suicide is the “absolute right without concomitant duty, which somehow escapes state power” (p.111). Thus, physician-assisted suicide is a threat to the politics of power and the need of the state (body politic) to survive. The denial of this right underscores “the individual’s lack of freedom” (p.109). Assisted suicide, for Hanafin, is symbolic of a new kind of politics, one not based on power-“one in which the individual bears the responsibility to decide for oneself” (p.110). One can find much more positive bases for a politics in which the individual bears responsibility for oneself-ones which do not reduce all law and politics to artful covers for brute force.

The final article in this section is Ellen S. Podgor’s “Extraterritorial Criminal Jurisdiction: Replacing ‘Objective Territoriality’ with ‘Defensive Territoriality.’” This is a low-key, well-argued piece of scholarly research. It is easily accessible in terms of its language and presentation, although it is a narrow topic that will be of most interest to specialists in the area. Podgor very convincingly presents the ethical and practical benefits of replacing the concept of objective territoriality (acts committed outside a jurisdiction, but intended to produce detrimental effects within it) with that of defensive territoriality (criminal conduct aimed at a government function) in cases involving individuals and corporations residing outside the United States. Defensive territoriality, she maintains, is “a methodology that is better attuned to globalization” (p.118). It allows the United States to prosecute where necessary, but respects other nations’ institutions and cultures and promotes the international cooperation necessary in a global society.

The book’s best piece is Jonathan Goldberg-Hiller’s “‘Subjectivity is a Citizen’: Representation, Recognition, and the Deconstruction of Civil Rights.” Not only is it a wonderful piece of work, it also gives the reader a much better understanding of what some of the other authors were striving to do. Emmanuel Levinas provides the framework for Goldberg-Hiller’s examination of same-sex marriage and Kanaka Maoli sovereignty in Hawai’i. Overall, his argument is that lesbians and gays were less successful than sovereignty advocates in Hawai’i in achieving their objectives because they did not phrase their arguments in a way that demanded self-critical reflection by the majority. Opponents of same-sex marriage used [*270] language to transform it from a human right into an attack on culturally valued institutions by a special interest group. In effect, opponents successfully flattened ethics and tradition in ways that allowed them to ignore the “Other” and his/her demand for justice.

On the other hand, opponents of the Anaka bill proceeded differently and were able to conduct discussion on their own terms. Kanaka Maoli rejected being described or “named” on the U.S. government’s terms. They insisted on their identity and so made a case that “Law should absorb autonomously-derived social identities, and not substitute for this process” (p.167). They would not be addressed as “Native Hawaiian,” a term they identified as being “incorporated as American Indians and to be forced to live with the nation-within-a-nation semi-sovereign status that such terminology implied” (p.167).

These two examples support well the article’s more general argument concerning civil rights in the contemporary United States. Contemporary opponents of civil rights frequently characterize them as “special” rights that victimize the majority to benefit those whose demands threaten the social order as exemplified by the concepts of family and nation. Those who demand civil rights are “excessive.” Levinas’ concept of the anonymous third inverts this construction to recognize the reality of the “Other” and the responsibility each of us has for her.

In conclusion, this is an uneven book. Although the authors’ creativity, thoroughness, and commitment to interdisciplinary scholarship are impressive, there were too many problems in the work as a whole. There is no attempt to provide either a unifying thesis for the articles or a framework that will assist the reader in analyzing them. Instead, the editors plunge readers, without any preparation or guidance, into a language and worldview with which they may be unfamiliar. The assumptions and perspectives of the authors are obvious. Nevertheless, they are not immediately accessible to everyone interested in and knowledgeable about the law. One of the potential strengths of a series such as LAW AND SOCIETY is its ability to acquaint us with new thinking and writing, new ways of interpreting old concepts. Several of the articles in this compendium are excellent and genuinely challenge the reader to rethink old positions. However, I wonder whether this book has limited its audience too much by not providing some overall discussion of the aesthetic that grounds these authors. Law rests on the possibility of common understandings and common language. The postmodern denies such commonality is possible. What the reader sometimes finds in this volume are the language games played by insiders, rather than a genuine attempt to enlighten and challenge.

Finally, as Richard Rorty has freely admitted, the postmodern is the antithesis of the political. If the postmodern is the anti-thesis of politics, it also is the anti-thesis of law. Law, as each of these authors implies, is a subset of politics. The authors in this book work hard to combine insights from political philosophy into their articles. But despite the use of theory, several of the articles display a distinct lack of theoretical understanding. The political challenge of [*271] ancient and medieval philosophy was how to construct a community of being that combined love of transcendent being with love of the world and the self. How can human beings combine Agape and Eros? Out of the wreckage of Christianity western modern political philosophy tried to find some sort of community based solely on love of self. This is the Eros of extreme individualism and of the nation state.

Ultimately, law is the substance of and language used to write society’s self-understanding in the face of its particular challenge. That has not changed in the 20^th and 21^st centuries. Law sets forth our communal understanding of order at all levels of being: the gods, other human beings, the cosmos, and society. The challenge of contemporary political philosophy is to figure out how to generate some communal understanding in a world Camus allegorized as under siege by forces of nihilism and organized murder. The contemporary world is one in which the Eros of self-love has grown so large that it is transformed into Thanatos (the passion for death). Its theme is man/woman against himself/herself, the clash of self and other (whether the other is another human being or some part of the self). These authors all are correct that law will express the consciousness inherent in whatever reality, whatever vision of politics and political community, human beings choose and live. What they have not considered is an important question, “What reality can law have in a society where the only politics possible is that of individual against individual or group against group?” If law is a subset of politics and politics is a subset of force, then law is essentially war. It is, as Carl von Clausewitz suggested, just another way to impose our will on an enemy.

REFERENCES:

Camus, Albert. 1962. “State of Siege,” in CALIGULA AND THREE OTHER PLAYS. Vintage Books.

Clausewitz, Carl von. 1976. ON WAR. Michael Howard and Peter Paret (trans. and eds.). Princeton: Princeton University Press.

Rorty, Richard. 1989. CONTINGENCY, IRONY, AND SOLIDARITY. Cambridge: Cambridge University Press.

CASE REFERENCES:

SHAW v. RENO, 509 US 630 (1993).

WASHINGTON v. GLUCKSBERG, 521 US 702 (1997).

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