Vol. 7 No. 5 (May 1997) pp. 240-242.

THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS by John Brigham. New York: New York University Press, 1996. 224 pp. Cloth $37.50.

Reviewed by J.D. Droddy, Department of Government, Western Kentucky University.

The word "constitute" means to set up or establish; to provide form or structure. John Brigham notes that we use a derivative form of "constitute" in referring to the fundamental law of the land — the Constitution. To him, law is more than instrumental — a mere tool for guiding behavior. It is more than rules and commands from the sovereign, as Jeremy Bentham or H.L.A. Hart might suggest. Law is constitutive. It serves as the structure around which much of life is organized. That certainly is true regarding movement politics. Law provides the structure in which various movements pursue their particular interests. It is law that provides the stage, the language, and even the boundaries within which political movements exist. Brigham illustrates the point by setting forth in great detail the historical development of four different political movements. Each of these movements was characterized by a different feature — collectively the four "Rs": Rights, Realism, Remedies, and Rage.

Brigham points to the "Gay Rights" movement as an example of a "rights-based" interest movement defined and structured by law. More specifically, the author addresses the AIDS crisis and suggests that "the impact of AIDS on group identity was mediated by legal forms." "Rights," he argues, "are a way of doing things." He emphasizes rights as praxis; customs or ways of doing things that originate in society itself, not merely some legislative enactments.

Early in the AIDS crisis, many gay-rights activists appealed to claimed rights associated with "sexual freedom" to resist the closing of the gay bathhouses in San Francisco, where unprotected sexual activity was rampant. Some entrepreneurs asserted rights associated with "free enterprise." But other citizens challenged these rights claims in the interest of public health.

Ultimately, the public health interest prevailed and the bathhouses were closed down. Throughout the controversy, however, the debate was structured by law and the language of law. Words such as "claims," "immunities," "powers," and "liberties" are part an parcel of the language of rights. These words are used to define societal relationships, but are different in kind from other words that also define societal relationships, such as love, friendship, respect, or envy. The language of rights is about enforceable entitlements. Rights are interests constituted by law and enforceable by governments. Love, friendship, etc. are not constituted by law; rather they emanate from the individual — "and we don’t look to governments to enforce them."

Next, Brigham discusses the "Legal Realism" movement and two of its oft’-feuding descendants — "Critical Legal Studies" (CLS) and "Law and Economics". He ties Legal Realism to his theme of "law as constitutive" by noting that

a lawyer knows the law as ideal and the nuances of the moment as reality. He still may expect the citizen to respect the authority of courts, but his sense of the real leads him to be far less reverent to the forms of law as applied to himself. These ideas about law are part of the institutional practice. They are law that constitutes. Legal power in America with its institutional hierarchies is reinforced by the fact of a shared way of proceeding, the most important part of which is agreement on the importance of what is real. Brigham compares and contrasts the CLS and Law and Economics movements. Despite their great differences, however, the two movements are both progeny of Legal Realism. Although Legal Realism is somewhat cynical about what law is and downplays the power of legal texts, it leaves intact the notion of the institutional and professional structure and power of the legal system. Law is what the judges say it is. According to Brigham, the legal realist’s notion of law is a common-sense one. Law is more constitutive than instrumental. It sets the stage and defines the boundaries in which interests compete in the legal arena. The outcome of the competition is not always determined by societal- or legislative-based "rights"; it may be more determined by considerations of policy preferences, efficiencies, prejudices, or whatever. Still, in the legal realists’ conception, the institutions and general structure of law remains.

The third "R" discussed by Brigham — "Remedies" — features the ideology of "Informalism" or "Alternative Dispute Resolution" (ADR). ADR is akin in some respects to Legal Realism. Like Legal Realism, it de-emphasizes "rights". It takes advantage of the fact that law offers a cover for politics. In effect, it proposes a solution to private disputes that closely resembles politics — bargaining and compromise. The form is quite different from the rights asserted by gays in the San Francisco bathhouse controversy. In ADR, disputants seek remedies for their problems instead of vindication of their rights. Nevertheless, the remedies are framed in relation to law. Indeed, both the language and institutions of law provide the setting for ADR. Thus, ADR, which purports to replace (or at least augment) formal law, is itself constituted by law. Moreover, Brigham observes, "[w]hen informalism sits in the place traditionally left for law in theories of public authority we say of this social practice that it constitutes a community in law."

The final "R" stands for "Rage." The featured players are Andrea Dworkin, Catharine MacKinnon, and other radical feminists who waged an impassioned assault against pornography. Radicalism is contra-legal. Brigham notes that it "attacks the same instruments of government appealed to by gay activists — the courts, the judges, and the doctrines of law." To radicals, the law is oppressive; it is associated not with hope but with despair; it represents the "inequitable status quo." But, despite this contra-legal attitude, the movement was defined and structured by law.

What started out as an expression of rage eventually evolved into a debate as opposition to these radical ideas emerged. Among those opposing the position of the antipornography feminists were those interested in maintaining a rights-based, expansive interpretation of the First Amendment. Hence, the debate eventually turned to subjects such as what constitutes pornography and the limits of free speech. Over time, the radicals moved toward reliance on the state rather than solely expressing opposition to it. The law was looked to as an instrument of change. According to Brigham, however, the history of the movement cannot be explained simply in terms of a move from contra-law attitudes to a reliance on law. "From its inception, the antipornography movement has been influenced by law. It has operated in a sphere audiences generally associate with legality, illegality, and the Constitution."

In my view, THE CONSTITUTION OF INTERESTS has a few weaknesses and many strengths. The primary weaknesses is that the author tends to go off on tangents from time to time, although he usually (but not always) makes some attempt to tie his tangential discussion to the main theme — the constitutive nature of law.

For example, he devotes about nine pages to explaining the differences between the positions of the Critical Legal Studies movement and the Law and Economics movement. A couple of pages of explanation about their respective beliefs would have sufficed. Instead, we are led through an essay on the shortcomings and strengths of each and some speculation as to why Law and Economics seems to be winning the battle for the hearts and souls of the legal community. Not totally irrelevant to the topic perhaps, but a bit overdone. The same is true for the historical accounts of all the movements. Condensing those discussions a bit would have made the book much more readable.

Another example of an unnecessary tangent is his impassioned (and repeated) defense of Catharine MacKinnon, which seems to have little relevance to the theme. Brigham does more than defend MacKinnon, he vehemently attacks her critics. He even serves up some gratuitous sexism in describing a review by Carlin Ramano as one that "victimized and dehumanized MacKinnon in a way that only a male reviewer could."

Although I do not personally consider it a flaw, some political scientists might be put off by the fact that Brigham eschews the distinction between "facts" and "values." He proudly announces that he avoids the word "empirical" and makes no apologies for his failure to distinguish between "facts" and "values." He notes that some of his colleagues "are still wedded to the notion that the world is divided between facts and values," a condition he describes as the "problem" of "recalcitrant, lingering positivism."

The strengths of the book are many. The theme is well conceived and well argued. It is thought-provoking and informative. The author has done his homework. The literature has apparently been scoured for every tidbit of material that might contribute to this work. Despite the occasional tangent to which I alluded above, Brigham does a good job of weaving the theme thread from chapter to chapter.

One parting caveat regarding the intended audience. The author informs us that his intended audience consists of "professional political scientists and students of law, some of whom might be legal academics." He notes that his primary audience will not be legal intellectuals but those with a broader interest in the field we call Law and Society. I would add that this is not a book designed for the average undergraduate. It is somewhat esoteric and makes sophisticated arguments. Paradoxically, it makes for both interesting and tedious reading. It is intended for a well-read audience. I highly recommend it for political science and law professors, as well as graduate students in political science. It would also be appropriate for law students (although probably not of much interest to most).

Copyright 1997