Vol. 15 No.4 (April 2005), pp.319-321

JUDGES IN CONTEMPORARY DEMOCRACY: AN INTERNATIONAL CONVERSATION, by Robert Badinter and Stephen Breyer (eds).  New York: New York University Press, 2004.  352pp.  Cloth $55.00.  ISBN: 0-8147-9926-4.

Reviewed by Sally J. Kenney, Humphrey Institute of Public Affairs, University of Minnesota.  Email: skenney@hhh.umn.edu.

In the summer of 2000, five distinguished judges met with legal philosopher Ronald Dworkin in Provence, France, to discuss the role of the judge.  Robert Badinter, former president of the Constitutional Council in France, Stephen Breyer, Justice of the Supreme Court of the United States, Antonio Cassese, the first president of the International Tribunal for the former Yugoslavia, Dieter Grimm, former vice president of the Constitutional Court of Germany, Gil Carlos Rodriguez, president of the Court of Justice of the European Union, and Ronald Dworkin, professor of philosophy and law at the New York University Law School, each presented a paper that the others then discussed  The volume includes their papers, their summaries for the discussion, and an edited transcript of the three to four hour discussion of each topic.  The six topics are judicial activism, the secular papacy, supervision of the political process, international criminal justice, justice and the media, and the judge confronts himself [sic] as a judge.  The unifying theme is the globalization of constitutional law.

The volume begins with a quotation from Michael Oakeshott: “learning is not a race in which the competitors jockey for the best place, it is not even an argument or a symposium; it is a conversation” (p.v).  Like a conversation, the transcripts have a breezy feel of topics landed on rather than arguments sustained.  The volume, however, is somehow betwixt and between.  The summaries duplicate the introductory papers and feel repetitive.  And although the comments are presented serially, the experience of reading, however easy and enjoyable, does not really feel like a conversation.  First, the element of listening to someone speak at a conference or seminar is missing, since we miss the nuances and emphases of the spoken word.  Second, one really does not get much sense of the back and forth, interruption or contradiction that makes such conversations interesting events.  The few issues on which the like-minded discussants disagree, such as whether hate speech merits constitutional protection, are respectfully raised rather than intensively debated.  And some of the entries are so long as to conjure up images of the endless three-hour graduate seminar monologue.

Who is the audience for this book?  The format suggests that one has been invited into a special, high-level conversation where we can glimpse the uncensored conversation of thoughtful and seasoned jurists.  The promise of a glimpse behind the curtain is not fulfilled (the closest one comes is reading the insightful chapter on international criminal justice).  As one might expect of experienced judges, their words are [*320] carefully chosen and no confidences shared in their tape-recorded sessions.  As one who is interested in a comparative analysis of the judicialization of politics, I enjoyed reading the book.  Again, however, I found the volume a little betwixt and between.  On the areas I knew the most about—the European Court of Justice and the U.S. Supreme Court—I wanted the discussants to delve deeper.  When it came to the area I knew least—the International Court of Justice—I felt as though I needed more information to understand the conversation fully.  Moreover, I sensed that some of the participants felt the same way, particularly Justice Breyer and Professor Dworkin when it came to the non-U.S. examples, and the others when Dworkin was drawing on examples from the U.S. experience.  While it may be true that none of us knows enough about each of the courts in question to participate fully in a conversation, the enterprise of linking them conceptually is a significant contribution.  What, for want of a better expression, the editors call globalization has rendered some of the traditional divisions in law and political science—international, comparative, constitutional law, and human rights—divisions in scholarship that are no longer productive.  I applaud the editors for, in effect, saying “Let the conversation begin.”

Alas, I am still stuck in my own silo, and therefore found the comments of President Rodriguez to be the most interesting.  I suspect other scholars will skim and flip through to find the courts, persons, or subjects that interest them most rather than engaging the whole project as we hope a new generation of comparative legal scholars will do.  Will those only interested in the U.S. Supreme Court find enough background to benefit?  I suspect not.

Scholars who have already had a steady dose of Dworkin will find much familiar in his remarks.  It does, however, make for interesting reading to watch him confront the contradictions in how judges talk about their work.  The conversation might have been yet more interesting if the judges were “off the record,” or if they argued with the professor more.

Whether the book has wider appeal to the public or to judges themselves, I leave to the marketing people of New York University Press.  Surely the editors names guarantee that libraries will purchase the volume.  But what about students?  Would the book be a useful supplement in a class on comparative law?  I cannot decide.  I read the book as I was teaching a new course in law and public policy for M.P.P. students and found it to be provocative.  Clearly, the participants take up the central themes of my course: what is the role of the judiciary in a democracy?  Should we expand international law?  What should the role be of judges in refereeing the political process?  Unfortunately, the conversation occurred before BUSH v. GORE shifted the landscape on the latter question and the election of Bush ended U.S. support for an International Criminal Court.  I would probably assign the entire book only for a course on comparative constitutionalism or the judiciary, and I would listen carefully to the feedback from the students.  I suspect it would be more effective to assign the scholarly writings of any one of these thinkers individually, containing [*321] a sustained argument, evidence, and examples that were fully referenced.  I would, however, consider using a particular chapter in a course—the secular papacy, the political process (Breyer’s paper), or international criminal justice, depending on the course.

I enjoyed the discussion of judicial activism, no doubt because the participants all agree with my position rejecting the idea of judicial imperialism and seeing the concept of judicial activism as largely unintelligible—Dworkin calls it “spongy” (p.60).  (The many vocal critics who think otherwise were not in Paris that spring.)  The commentators are thoughtful about how elected officials characterize them and understand the rise of unchecked centralized power and experience with totalitarianism as catalysts for judicial power, as Mauro Capelletti did years ago.  They recognize the dangers to democracy of judicial power as they recognize the shortcomings of current democracies as well as the public’s desire to give increased power to judges.  They reject legal formalism but are clearly thoughtful about the justification and legitimacy of judicial power.  They see the virtues of “the arena of principle.”  Cassese makes a passionate case for international criminal law, despite its shortcomings, and clearly understands the complex politics involved.  They speak with trepidation about judges’ grandstanding to the media.  They worry about the expansion of judicial power.

Predictably, as one who studies gender and judging, I must comment on the composition of the all-male group.  Women judges serve on all of these courts now; even the House of Lords in Britain has a female member, Lady Brenda Hale.  The editors do not tell us how this group came to be chosen or assembled, other than it resulted from a chance meeting of friends in “Paris in the spring” of 1999.

I must say, I find it tiresome in 2005 to have to be complaining about gender exclusive language.  Badinter refers to “men of my age” (p.9) as if the importance of courts in keeping the peace in Western Europe has escaped the notice of women.  He dubs a public servant a “public man” (p.173) while drawing our attention to the semantic distinction between judges and prosecutors. Men are those capable of justice (p.186).  Only a he can will the means (p.249).  Judges are always he (pp.11, 275), except for the enlightened Dworkin (p.87), and sometimes “fellows” (pp.152, 210).  Referring to the judiciary as the “secular papacy” does not anticipate the selection of a woman pope.  Too bad the many women thanked for their work producing the book, or Dworkin, did not catch the language.  But I suppose that is still how the participants talk and, I fear, think.

JUDGES IN CONTEMPORARY DEMOCRACY is an unusual book for this list, as it is a conversation rather than a scholarly argument.  Nevertheless, the speakers and the topics will interest many subscribers.


© Copyright 2005 by the author, Sally J. Kenney.