CURRENT LEGAL PROBLEMS 1996 VOLUME 49 PART 2: COLLECTED PAPERS. M.D.A. Freeman, editor, with R. Halson, Assistant Editor. Oxford and New York: Oxford University Press. 1996. Pp. 420. 

Reviewed by Susan Sterett, Department of Political Science, University of Denver
 

From an American perspective, two purposes for reading in this British series are evident. First, we can read it as the authors would mean the articles to be read: as serious considerations of particular areas of law, largely within the British legal system. They are helpful for those who are concerned with either the particular legal system or with the conceptual issues the legal problems raise. Second, this series provides a statement of what leading British legal academics are thinking about. Those interested in tracking cultural concerns in law can read the essays as cultural artifacts. The volume is a collection of papers first delivered as public lectures under the auspices of the Faculty of Laws of University College London, designed to appeal to specialists as well as an interested educated public. The collection is eclectic and includes 15 different essays, ranging from a discussion of globalization and how that might transform legal theory, to one concerning approaches in child custody law that allow judges to refuse custody of children to gay and lesbian parents. Because of the rich diversity of the collection, I will only touch on some themes.

The primary news is how much Europe shapes the concerns of British legal life. Americans are accustomed to thinking of an Anglo-American tradition, encompassing the common law and opposed to the civil law approaches to law. From that shared tradition and shared language, Americans have believed that if, for example, the British are thinking about the possibility of a written constitution, it must draw from the American experience. But increasingly attention is on Europe, not on the United States. The European Union and the aggressiveness of the European Court of Justice as well as the significance of the European Convention of Human Rights in importing rights into an extremely resistant political system has made continental Europe the significant reference point for constitutionalism in Britain. Essays that draw explicitly on international themes include William Twining’s on globalization, John Dugard’s on international human rights law and the South African Constitution, David O’Keeffe’s on European Union citizenship, and Dominic McGoldrick’s on Yugoslavia.

This year’s collection of essays begins with William Twining’s discussion of the importance of the globalization of the world economy and the need to incorporate a recognition of that into scholarship about law. Twining’s essay in part turns on the international possibilities in the legal theory already taught in English jurisprudence courses. He briefly addresses the possibilities in Hart, Dworkin, Rawls and Bentham. He argues that even the seemingly most parochial of legal theorists, Ronald Dworkin, whose general theory of law focuses on the American obsession with justifying judicial decision making, offers possibilities for thinking about law cross-culturally. He also honors Karl Llewellyn, who more than any other legal theorist tried to move away from a focus on American concerns about appellate judicial decision making, defining "law jobs" broadly enough to invite attending to different cultural understandings of what is important in understanding ways of resolving disputes. Twining has purposely chosen canonical theorists to argue that we do not need wholly new theorists and wholly new ways of looking at law in order to analyze globalization.

Twining’s attention to globalization alongside his recognition of the difficulty of doing comparative work is inviting and respectful of significant themes in legal theory. And, indeed, some significant research on the European Court of Justice has taken on questions common to Anglo-American analysis about the values appellate judges bring to the law, whether judges follow the law, and in what sense they follow the law. These are often the questions at the heart of legal theory. The significance of the theme is illustrated in the next essay in the collection, the assessment by Lord Johan Steyn, a Law Lord (a judge in the House of Lords, a member of the highest court in Britain), of whether judges are caught in legal formalism or have found another way to approach legal issues. These concerns do not transform the questions that we want to ask, as Twining argues attention to globalization must. In looking to Hart and Dworkin, we do not invite rethinking concerns. Working through globalization should revise not the answers to questions we have asked, but the questions themselves.

The blurring of boundaries, so that the nation-state is not the only significant actor, is evident in John Dugard’s essay on South African constitutionalism. In South Africa, the Constitutional Court is explicitly instructed to attend to international human rights instruments; the interim Constitution even instructed the Court that it "MAY have regard to comparable foreign case law" (p. 315). In such a context, treating law as a distinctive expression of local culture simply misses the significance, which Dugard notes, of the spread of the language of human rights and its connected web of law, making international instruments concrete and applicable in courts.

Political theorists have noted this interweaving of international human rights norms and local law and have argued that it has made distinctions between citizens and non-citizens increasingly irrelevant. Debates over this question would be much better illuminated were scholars to attend more closely to the specifics of rights. David O’Keeffe, in his essay on European citizenship addresses rights of citizens of member states within the European Union as well as the rights of third-country national. Not surprisingly, the rights are more variable and specific than assertions about the relentless universality of human rights language would suggest. O’Keeffe addresses the question of the direct effectiveness of European Community law; without direct effect domestic institutions do not have an obligation to enforce the treaty obligations unless EU institutions tell them to do so (pp.366-367). The meaning of rights is much more ambiguous than broad scale discussions of international rights would suggest when answers to such crucial questions are uncertain.

Many of the essays in the volume address particular problems within British law but could be understood to be helpful in thinking through problems even for those not interested in the question of what the legal rules should be or what their implications are. The issues could be of interest to political theorists interested in thinking through questions of property (Nicholas Bamforth) or labor (Roger Rideout) or political corruption (Philip Schofield). The essays are too wide-ranging for me to address each in detail; I will close with a brief discussion of two essays on children in the law to illustrate the range of essays.

Helen Reece argues against the paramountcy principle in family law, which holds that the interests of children are paramount in family law disputes. She notes that since the justification is that children represent the future, the principle places the future always as of greater importance than the present (pp. 279-280). The argument could be broadened to address historical understandings of what it means to promote the general welfare; in the American context, the historian Linda Gordon has argued that the strategic political choice always to place children first, and to only argue for provision for women to the extent they were caring for children, has undermined support for the interests of women (Gordon 1995). Reece therefore provides an entry not only into questions of child custody law in Britain, but into thinking about welfare and family more generally.

However, her focus on the immediate issues in family law might promote some reification of the significance of a legal category as an independent causal force. She argues that the paramountcy principle has allowed judges to enact biases against gay and lesbian parents (pp.286-287), that it has allowed the placement of children’s needs above parental rights (pp.302-303). She argues that the paramountcy principle makes it impossible to attend to what other than children’s welfare should be taken into account in children’s cases (p. 297). While her point concerning the artificiality of claiming to place children above all others is powerful, I simply do not see it as necessary to say that the problem in the cases she lists are problems of making children’s interests paramount. She draws from cases to show how the courts have held against gay and lesbian parents. Courts have held that children in gay and lesbian households are more likely to be abused (without any evidence), that they will be subject to stigmatization by peers, and that they are more likely to become gay or lesbian themselves (pp. 288-290). Finally, the courts also argue that they must support nuclear families (pp. 290-299). These decisions are nothing more than the manifestation of homophobia and a commitment that is in the latter set of cases explicit that being gay or lesbian is simply wrong.

If judges and others interpreting child custody laws are committed to discriminating against gays and lesbians, it is difficult to see how a presumption stating that parents rights count too would help. Furthermore, to say that these rights count as a way of countering presumptions that children’s needs are paramount would concede far too much to those who think gays and lesbians should not be parents. It would, as I read Reece, demonstrate a willingness to concede, or at most to set aside, the question of whether it is bad for children to live in gay and lesbian households. Reece’s stated commitment is that gay and lesbian households have moral claims equal to those of straight households. But conceding to those who argue for the virtues of the straight nuclear family by way of arguing that the problem is that parents’ rights are not taken into account enough does not seem to stay with that commitment to gay and lesbian parents. If judges mean to be anti-gay and lesbian, they will be, and changing the weight accorded different interests will not change that.

Judith Masson addresses the representation of children in legal proceedings. She provides a nuanced discussion of what it means to treat children as though they have rights equivalent to those of adults. Masson argues that such a recognition does not require treating children as though they are identical with adults; they have different capabilities. She notes, however, that representation of children in legal proceedings is based wholly on assumptions about capabilities, needs, and how a child relates to his or her advocate. Masson’s article, in recognizing complexity, invites analysis rather than assumptions about how children experience the legal system. Arguing from capabilities allows a more subtle recognition of rights than those opposed to rights because they are too absolute believe is possible.

I hope I have suggested the range of essays included in this collection. They are in general contributions to ongoing legal debates, most of them not framed for the concerns of social scientists. The difficult problems that Twining raises of how to begin to make comparisons among legal systems, legal systems which are not wholly bounded and separate anyway, are not the topic for most of these essays. But if we are to move in a comparative and more global direction, struggling against the parochialism for which Twining rightly castigates most American social science about law, learning about how participants talk about their own legal system is not a bad place to start.
 

Linda Gordon, "Putting Children First." In Linda Kerber, Alice Kessler-Harris and Kathryn Kish-Sklar, eds. 1995. U.S. HISTORY AS WOMEN’S HISTORY. Chapel Hill, North Carolina: University of North Carolina Press,1995.