Vol. 4, No. 3 (March, 1994) pp. 30-32.
PRESSURE THROUGH LAW, by Carol Harlow and Richard Rawlings.
London and New York: Routledge, 1992. xxi+364 pp.
Reviewed by Herbert M. Kritzer, Department of Political Science,
University of Wisconsin-Madison.
Starting with various descriptions of cases brought by the NAACP
Legal Defense and Educational Fund (LDF), American political
scientists, historians, and legal scholars have documented and
analyzed the use of courts in the United States by interest
groups. In PRESSURE THROUGH LAW, Carol Harlow and Richard
Rawlings (both faculty members in the London School of Economic's
Law Department), seek to extend this type of analysis to
twentieth-century Britain. The result is a rich body of materials
that (1) adds to the growing skepticism over American
exceptionalism regarding the role of law, and (2) provides a
perspective on British politics typically overlooked by political
scientists.
Every political scientist who teaches and writes about law,
courts, and politics in the United States is familiar with Alexis
de Tocqueville's 19th century observation that "[s]carely
any political question arises in the United States that is not
resolved, sooner or later, into a judicial question." In
contrast, how many are aware that the end of slavery in England
was accomplished primarily through a court decision (pp. 12-17)?
While it was not until 1833 that the British Parliament acted to
end slavery throughout the British Empire, slavery in England was
effectively ended by the decision of Lord Mansfield in Somerset
v. Stewart, a decision handed down in 1772, four years before the
American colonies declared their independence. The Scottish
courts handed down a similar ruling six years later in Knight v.
Wedderburn.
PRESSURE THROUGH LAW opens with a chapter that traces early use
of court action by English pressure groups on several issues:
slavery, women's suffrage, civil liberties (e.g., against
compulsory vaccination, rights of public protest, etc.), animal
welfare, environmental issues (e.g., preservation of green
spaces, archeological sites, etc.), and public morals (campaigns
against prostitution, profanity, drunkenness, obscenity). These
early examples involved a mix of civil actions and criminal
prosecutions brought by private parties (prosecution in England
was, and technically still is, a private matter, albeit it is
usually handled today by the Crown Prosecution Service). While,
many of the early attempts to use the courts and legal action
were unsuccessful, that does not undercut the point that there is
a long history of such activities in England.
After the introduction to interest group litigation in England,
the authors take the United States as the paradigmatic case of
such action. They review the historical bases of such action in
the U.S. and discuss the recent significance of litigation in
U.S. for issues such as civil rights, civil liberties, criminal
justice, and abortion rights. Along the way the authors discuss
the key role played by prominent groups such as the LDF and the
ACLU, both as litigants and as third parties acting as amicus
curiae. There is also some discussion of the research literature
on courts and interest groups in the United States (e.g.,
Epstein's CONSERVATIVES IN COURT), but this does not form the
core of the chapter, nor does it serve to initiate a discussion
of a theoretical framework for what is to follow.
The four central chapters of the book examine British interest
group activity in the courts: one chapter on civil actions as a
primary mode of court use, one chapter on court action as an
ancillary activity to public campaigns and the lobbying of
Parliament and the bureaucracy, one chapter on the linkage
between interests and the criminal courts, and one chapter on
extra-national activities involving the European Convention on
Human Rights (including the European Court of Human Rights) and
the European Court of Justice (the court of the European Economic
Community). Each of these chapters discusses a variety of
examples, some successful and some unsuccessful, of interest
group use of the courts. Care is given to map institutional
factors that condition these actions: the English fee shifting
rules in civil
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litigation (i.e., the loser pays rule), the funding of court
action through legal aid, and the availability of private
prosecution in the criminal courts.
To the reader familiar with the courts and interest groups
literature from the United States, some of the examples discussed
in the chapter on civil litigation seem more like large scale,
noninterest group actions. For example, Harlow and Rawlings
include disaster litigation (e.g., vaccine damage) in the chapter
on "Group Action in the Civil Courts"; while this
discussion serves as a nice lead-in to the absence of
American-style class actions, it seems to have little to do with
interest groups as that concept is typically used by political
scientists. Other examples (e.g., the activities of the Freedom
Association) discussed sound very similar to interest group
litigation in the United States. Throughout the civil litigation
chapter, the authors consider how the institutional arrangements
(funding rules, cost rules, standing rules, the role of the
Attorney- General, etc.) serve to encourage or inhibit group
litigation.
In the chapter on "Courts, Campaigns, and Lobbyists,"
Harlow and Rawlings use a variety of examples to show how some
interests have succeeded in using the courts and litigation as a
part of a larger political program. Sometimes a group finds a way
to package a case (or set of cases) so that it fits nicely into
the perception of courts as having a limited role. For example,
the Anglers' Cooperative Association (ACA) assists landowners
(who happen to be fishing enthusiasts) to bring property actions
against upstream polluters; the success of these actions affects
all anglers who use the stream in question. The good fit here
reflects the English courts' traditional role as protectors of
property rights. While these instances of good fit are
noteworthy, most of the examples cited by the authors in this
chapter do not fit as neatly as the ACA actions. The range of
groups and campaigns discussed demonstrate both successful and
unsuccessful uses of the courts by British interest groups.
As noted previously, the role of private prosecution in Britain
opens up an avenue of group action that does not exist in the
United States. While interest groups in both countries may be
involved in lobbying public prosecutors for action in certain
types of cases (typically vice-related), in Britain some groups
organize to bring cases themselves. A good example is in the area
of animal rights and welfare, where the Royal Society for
Prevention of Cruelty to Animals investigates tens of thousands
of complaints a year, and successfully prosecutes about 2,000
cases a year. In Britain, it is common to include within the
criminal law areas which in the U.S. are largely (if not
exclusively) civil. Thus, as polluters become subject to criminal
sanctions, groups like the ACA have begun to institute private
prosecutions to curb pollution.
British interest groups are no longer limited to bringing cases
in the British courts. Increasingly, it has become possible for
these groups, perhaps working with similar groups in other
countries, to turn to the European Court of Justice (the court of
the European Community), or the European Commission (and Court)
on Human Rights (which investigates and rules on issues under the
European Convention on Human Rights). More generally, Britain's
international treaty obligations (whether to Europe or through
institutions such as the United Nations) create legal vehicles
which transcend any limits within the British courts. For
example, while Britain does not have a national equivalent of the
American Bill of Rights or the Canadian Charter of Rights and
Freedoms, the European Convention on Human Rights provides some
similar protections; the (British) National Council on Civil
Liberties has successfully brought a number of cases to the
European Court of Human Rights. Single-issue groups (e.g.,
Society of Teachers Opposed to Physical Punishment) have also had
a measure of success bringing cases under the terms of the
Convention.
Until the final chapter, Harlow and Rawlings' discussion is
largely descriptive, showing the various ways that interest
groups have sought to use the British (and European) courts to
exert influence on public issues. In the final chapter, the
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authors make some efforts to add theoretical insights to their
analysis. For example, they argue that British politics in the
post-War years moved in the direction of pluralism (a trend that
was accelerated by Thatcherism), and this spurred interest groups
to consider avenues of influence through the courts. They argue
that explanations of interest group success developed in the
American context are wanting in the British context, and they try
to develop more institutional explanations (e.g., group
personality, "good fit", etc.). Lastly, they try to
apply a set of metaphors to contrast the American
("freeway") and traditional British
("drainpipe" with the judge's hand on the stopcock)
approaches to access to the courts, and argue that changes in
Britain have moved away from the drainpipe toward a
"funnel" (i.e., more open at the top, but still
constrained at the output end).
Overall, this is a valuable book, less for the brief (and not
altogether satisfying) theorizing that seems a bit tacked on,
than for the extensive descriptive discussion. The range of cases
and groups considered in PRESSURE THROUGH LAW belies the view
that courts are an unimportant player in British politics albeit
the authors do not argue that the political role of courts is
equal to that of courts in the United States. While others have
argued that courts are an important part of the British polity
(see J.A.G. Griffith's THE POLITICS OF THE JUDICIARY), political
scientists specializing in British politics more broadly have yet
to devote significant attention to the courts. (While several
judicial scholars have looked at judicial process in Britain as
political scientists have looked at judicial process in the
United States, this work has not considered the courts more
broadly as part of a larger political system). Hopefully, the
wealth of material provided by Harlow and Rawlings will lead to
increased efforts to bring theories of governmental institutions
and political processes to bear on the study of courts in
Britain.
Copyright 1994