Contents

    Reviews

• Cooke, Elizabeth. The Modern Law of Estoppel. Review by Peter Linzer.
• Friedman, Andrea. Prurient Interests: Gender, Democracy, and Obscenity in New York City, 1909-1945. Review by Jay A. Gertzman.
• Ibbetson, David. A Historical Introduction to the Law of Obligations. Review by Peter Linzer.
• Macedo, Stephen. Diversity and Distrust: Civic Education in a Multicultural Democracy. Review by Linda C. McClain.
• Peters, Shawn Francis. Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Review by Thomas C. Berg.
• Shuman, Daniel W. & Alexander McCall Smith. Justice and the Prosecution of Old Crimes: Balancing Legal, Psychological, and Moral Concerns. Review by Christopher Slobogin.

    Reply Essay:

• Lucien Karpik & Terence Halliday reply to Richard Abel's review of Lawyers and the Rise of Western Political Liberalism (Oxford University Press, 1997).
• Talkback

The Time That It Happened Here
by Thomas C. Berg

Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution
Shawn Francis Peters
Lawrence, KS: University Press of Kansas, 2000
Cloth: $34.95
Pp. ix, 342
ISBN: 0700610081

Large-scale religious violence can happen here in America; indeed, it has happened. Our history has seen two examples of systematic persecution of religious groups through mob violence and government coercion. In the mid to late 1800s, the Mormons were forced out of one state after another by local rioters, were prosecuted by the federal government for practicing polygamy, and were on the verge of forfeiting all their church property to the government before they renounced the plural-marriage doctrine. Several decades later, the Jehovah's Witnesses suffered similar violence and coercion throughout the nation, a story vividly recounted in Professor Shawn Peters's Judging Jehovah's Witnesses.

The Witnesses, a millennial sect derived from Christianity, began seeking to save a large number of souls in the early 1900s, employing particularly aggressive forms of street-corner and door-to-door preaching. Their proselytizing, together with their refusal to salute the flag or serve in the armed forces, provoked anger and fear among many Americans. The Witnesses were fired from jobs, arrested by police, and beaten by mobs who sometimes inflicted even greater brutalities such as castration. The Witnesses' meeting halls were looted and burned; their children were expelled from school. At every turn, however, the sect members defended their rights in court, eventually bringing nearly 40 cases before the U.S. Supreme Court in the 1930s and 40s. The Court finally responded by protecting the Witnesses' rights to follow their conscience and evangelize peacefully, in a series of decisions that laid the foundation for the modern law of freedom of speech and conscience. The story has been told before (for example, in David Manwaring's Render Unto Caesar (1962)), but Peters makes it especially compelling and adds new details.

The most gripping part of the book, the early chapters, describes many of the hundreds of mob attacks on Jehovah's Witnesses during the early 1940s. It is important to be reminded in stark terms of just what the Witnesses endured for preaching their faith. In Maine, vigilantes surrounded a Witness meeting hall, and after the people inside had been removed by police, burned it almost to the ground. (76-80) In West Virginia, a sheriff's deputy bound two Witness preachers with rope in the mayor's office while other men poured 8-ounce bottles of castor oil down the Witnesses' throats. (91) In Nebraska, two men tricked a Jehovah's Witness out of his home, took him to a nearby wood, and cut off one of his testicles. (95) The estimates run between 800 and 2,000 acts of violence against Witnesses in the first half of the 1940s. To tell these stories, the book mines various sources, including the extensive reports and files that the ACLU compiled in 1941 and 1942 on the Witnesses' behalf.

There were also numerous campaigns of persecution against Witnesses short of violence. Hundreds of children were expelled from public schools for refusing to pledge allegiance to or salute the flag, gestures that the Witnesses regarded as worshiping a graven image. The expulsions finally ended when the Supreme Court, which had first upheld the compulsory salute in Minersville School District v. Gobitis (1940), reversed itself three years later in Board of Education v. Barnette (1943). When the parents then home-schooled their children or sent them to makeshift "Kingdom schools," some public school administrators still harassed the families. There was job discrimination: employees at a West Virginia factory refused to work for a Jehovah's Witness supervisor, a longtime employee, and he was fired along with six other Witnesses (the federal government eventually ordered them reinstated). (157) In Illinois, the wife of a disabled Witness preacher was refused her grocery allotment by the local relief administrator on the basis that she was supposedly "against the government;" the family went without benefits for months, and during the same time the father was fined for distributing literature and the son was expelled from school for refusing to salute the flag. (163-64)

These accounts bring home dramatically the conflict to which Witnesses repeatedly were put between their bedrock beliefs and the government's rules, and the narratives remind us of what constitutional rights mean to real individuals. But Peters also tells us about the Witnesses as people, not just as cardboard victims. The first chapter, for example, deals with Lilian Gobitas, the child plaintiff in Gobitis (the court captions misspelled her name), and her family: how she began public witnessing with her father at age eight, how her father tried to make their preaching trips more fun by packing a picnic lunch, how she was a popular and successful seventh-grade student when the flag controversy arose, how she agonized over whether her religion required her to violate a school rule, how her teacher and many classmates supported her but were overruled by a bitter and intolerant superintendent, and so on.

There were essentially two reasons why the Witnesses became the targets of such virulent persecution in the early 1940s. First, some of their beliefs touched particularly raw nerves among Americans at a time of anxiety over the threat of Nazism. The anti-Witness fever reached its peak in the spring of 1940, as the Germans were invading and overrunning France and most of the rest of Western Europe. The fear began to spread wildly that in America, just as in Europe, the Nazis had a "Fifth Column" of spies and sympathizers who were committing sabotage and setting the stage for a transatlantic attack. Peters cites a Fortune magazine survey in July 1940 showing that three-fourths of Americans believed in such a conspiracy. (72)

In this atmosphere, the Witnesses' refusals to salute the flag or serve in the armed forces were taken by many people as proof of treason. The most widespread anti-Witness violence came from the veterans and self-appointed patriots of the American Legion; one study estimates that Legionnaires participated in one-fifth of the more than 800 attacks on Witnesses in the early 1940s. In the West Virginia assault, the brutalized Witnesses were defaced with the painted phrases "Fifth Column" and "Hitler's spies." (92)

The war anxiety, Peters shows, infected the Supreme Court when it decided Gobitis on June 3, 1940, holding that Witness children could be forced to salute the flag. As is well known, Felix Frankfurter saw the flag-salute issue as a prime example of the need for national unifying symbols, and for courts to defer to legislative judgments on such matters. But Peters ties Frankfurter's concern for unity closely to the unsettling reports of Nazi successes that were coming in at the time (France surrendered within a few days). "[Frankfurter] is not really rational these days on the European situation," said Interior Secretary Harold Ickes, and Frankfurter admitted to President Roosevelt in late May that "hardly anything else has been on my mind." (54-55) The Supreme Court law clerks called Gobitis "Felix's Fall-of-France Opinion." (65)

Whatever the need for unity, the idea that the Witnesses were spies or saboteurs was ludicrous. They indeed preached that the "Kingdom of God" was at hand and would throw down sinful earthly governments; but as lawyer Hayden Covington pointed out, such a revolution "would be done [only] by the God of heaven," not by the Witness, who shunned politics. (133) Mainstream Christians also taught of a coming kingdom of Christ; they just set the date later than the Witnesses did. When an Indiana prosecutor decided in 1941 to accuse Witnesses with "criminal syndicalism" – conspiring to overthrow the government – he brought the charges against two elderly ladies who had distributed literature on the street.

The second reason the Witnesses were targeted was that they were aggressive and obnoxious, as even their defenders had to concede. As Peters details, they would sometimes send hundreds of proselytizers at once into a small town (like a Biblical "swarm of locusts," one Witness publication boasted (33)). Once there, they would not only distribute literature, but sometimes would crank up record players or sound trucks so that their messages could penetrate into residents' homes. They constantly badgered existing churches in town with charges such as "Religion is a racket" and "Preachers are crooks," and they reserved special vituperation for the "harlot" of Roman Catholicism. (Among the fullest examples of their attacks are found in the facts of Cantwell v. Connecticut (U.S. 1940).) Occasionally, they would refuse to leave private property after the homeowner asked them to do so. Any kind of resistance usually made them more determined: they believed that persecution, like that of early Christians, "confirm[ed] that theirs was the most righteous of causes." (2) Peters tells how after the small group of Witnesses was attacked in Indiana in spring 1941, they came back, seventy-five strong, on Palm Sunday morning and purposely began their vocal attacks as parishioners were emerging from various Christian church services. (138) Such habits certainly did not deserve mob violence, but they did help provoke it.

One of the most importance legacies of the campaign against the Witnesses, of course, was that the judiciary eventually stepped in to protect their rights of speech and conscience, thereby laying the foundation for the "rights revolution" of the last fifty years, with its focus on ideological and racial minorities. But in Gobitis, one of the earliest decisions, the Supreme Court made matters much worse for the Witnesses. Frankfurter had argued that limiting the Court's intervention would encourage elected officials themselves to strive toward a "self-protecting and tolerant democracy" (17), presumably giving the Witnesses' rights of conscience high regard. But as Peters shows, many people read Gobitis the opposite way: as a recognition by the nation's highest court that the Witnesses were disloyal and dangerous and merited suppression. The anti-Witness frenzy escalated to its highest point in the weeks after the Court's decision. The Maine riots came right on the heels of the ruling, and the New York Herald Tribune and other papers attributed such violence to "rustics [convinced] that it is their personal responsibility to see this decree carried out." (82) A reporter in the South watched a sheriff stand by calmly as a crowd threw bricks and other objects at a group of Witnesses; when asked what was happening, the sheriff said, "They're traitors; the Supreme Court says so." (84) Just how much Gobitis contributed to the violence is impossible to say, but it certainly did some.

The aftermath of Gobitis still stands as key evidence that the political majority cannot always be relied on to protect unpopular minorities. It also shows that the Frankfurter thesis of restraint – that not all liberties must be judicially declared, that one can have a moral right even if it is not in the Constitution – is too subtle for many people to grasp. Justices Black, Douglas, and Murphy changed their votes from Gobitis to Barnette based in part on the anti-Witness riots; in effect, they concluded that if a right is to be taken seriously in America, courts must stand ready to enforce it.

By the mid-1940s, the Court had laid down numerous decisions protecting the Witnesses' activities. In doing so, it had built much of the framework for modern First Amendment law: incorporating the religious freedom right against state laws (Cantwell (1940)); demanding clear evidence of harm and precision of regulation to justify speech restrictions (e.g. Schneider v. Irvington (1939)); protecting free speech against license taxes and other regulations that made speech unduly expensive even if they did not formally prohibit it (Martin v. Struthers (1943), Murdock v. Pennsylvania (1943)); and extending the state action doctrine to guard speech even on the streets of a company-owned town (Marsh v. Alabama (1946)). Peters discusses these decisions, but he typically does not offer extended analysis of their reasoning or their doctrinal implications. For example, whether the First Amendment guarantees a substantive right to pursue religious conscience in the face of unnecessary legal restrictions, or is merely a bar on intentional discrimination against unpopular faiths, was a disputed question in the Jehovah's Witness cases and remains so today. Peters does not say much about such matters, which is understandable. This is primarily a work of history rather than of legal theory.

The last chapter of the book traces what happened after the anti-Witness furor began to die down around 1946. Not only did the war end, the Witnesses themselves became "markedly less confrontational and provocative" in their evangelizing (291), moving closer to the mainstream (a bit like the Mormons before them). Ironically, however, in Peters's view, the group also became more internally authoritarian in these years, even as it was fighting for liberty in the broader society. (295-96)

Jehovah's Witnesses still sometimes face intolerance and discrimination in the community and the legal system. On Christmas morning 1986, Elaine Munn and her husband Ray James Munn, both Witnesses and both African-Americans, were injured when their car was hit by another driver, driving negligently, on a Mississippi road. Elaine suffered multiple injuries but would not accept a blood transfusion at the hospital because of the Witness's belief that accepting blood is against the Bible and will bring damnation. Elaine died on the operating table. Ray James sued for wrongful death on behalf of her estate and the couple's children. At trial, defense counsel was allowed to cross-examine Ray James at length about the Witnesses' beliefs, the same ones that had so offended people in the 1940s: that Christ had returned to earth in 1914, that all other religions were damned, and that Witnesses must not serve the country in wartime or salute the flag. The August 1989 trial came in the midst of an highly publicized, emotional national debate over the Supreme Court's Texas v. Johnson (1989) decision protecting flag-burning and a proposed constitutional amendment, introduced in Congress in July, to reverse such protection.

After hearing all about the Witnesses' unsympathetic beliefs, the Mississippi jury deliberated and concluded that Elaine Munn's refusal of a blood transfusion was "unreasonable," awarded no damages for her death, awarded only $20,000 for her injuries and for her eight hours of severe pain and suffering, and awarded Ray James only $240 for his own injuries although they caused him pain for several months. The court of appeals conceded the "utter irrelevance" of the evidence about the Witnesses' beliefs, but it nevertheless affirmed on the ground that the error "did not adversely influence the jury." Munn v. Algee (924 F.2d 565, 5th Cir. 1991). In dissent, Judge Alvin Rubin objected that to say the jury was unaffected "is contrary . . . to the human disposition to favor those we like and to discountenance those we disfavor." That perennial human failing is vividly captured in Peters's excellent account of the persecution of the Witnesses.

Thomas C. Berg is Professor of Law at Cumberland School of Law, Samford University. He is the author of The State and Religion in a Nutshell (West, 1998) and serves on religious liberty advisory boards for the National Council of Churches, DePaul University, and the Christian Legal Society. The author was one of the lawyers for Ray James Munn, the plaintiff in Munn v. Algee (mentioned in this review), in an unsuccessful certiorari petition to the U.S. Supreme Court. He also was a law clerk to Judge Alvin Rubin on the U.S. Court of Appeals for the Fifth Circuit.

Prurient Interests: Gender, Democracy, and Obscenity in New York City, 1909-1945
Andrea Friedman
New York, NY: Columbia University Press, 2000
Cloth: $40.00 / Paper: $17.50
pp. x, 290
ISBN: cloth 0231110669 / paper 0231110677

Prurient Interests carefully describes the ideology and methods of those who tried to contain the commercialization of sex in New York City during the first half of the 20^th Century. The most evident characteristic of anti-vice organizations such as the National Board of Censorship, the Catholic Theater Movement, the New York Society for the Suppression of Vice, or the National Organization for Decent Literature would seem to be a universally shared intransigence. Andrea Friedman reveals differences, however. She distinguishes between the older form of "moral absolutism" as a basis for regulating public, commercial displays of prurient-inducing interests and the "democratic moral authority" that was well developed by the 1940s and was nationally codified in the liberalizing decisions of the late 1950s and 1960s, forged by William Brennan when Earl Warren was Chief Justice.

We know the value of democratic moral authority from the Ulysses decision in 1934; this ruling dealt a powerful setback to Victorian England's rule, set out in Hicklin, of what kind of writing could be censored – that which might set the most susceptible or immature member of a community on the path to committing anti-social acts. In United States v. Roth (1957), the Supreme Court devised a "test" that gave national sanction to the democratic concept of the average intelligent adult. In order to interdict expressive material, the government had to prove that it was disturbingly prurient and devoid of literary, artistic, political or scientific value to an "average" community member. Otherwise, the public had a right to see it.

Democratic moral authority is a fragile concept, however – even today. We deny the responsibility of self-regulation to children and adolescents, for example. The two groups are not distinguished from each other – "for their own good," the moral absolutists would probably say. High-school journalists may not print what their principal feels would weaken an ability to conduct an orderly school. Congress recently focused on legislation that would deny funding to public libraries if they balk at installing filtering devices on their Internet software, even if the software blocks innocuous and valuable sites the students might use for their research papers. Last year, Senator Joseph Lieberman and Tipper Gore campaigned against the availability of "demoralizing" music and movies marketed at non-adults (although many adults enjoy this kind of entertainment), with the approval of Senators McCain and Ishtook, and of former Secretary of Education William J. Bennett, as well as many fundamentalists. These moral entrepreneurs feel the temptations are too dangerous, and the consumers they target too immature. They use the same language – "sewer," "garbage," "filth" – as did the proponents of moral absolutism whom Friedman analyses.

Prurient Interests is far too rich in scholarly detail to be a black-and-white story of the triumph of a benign form of moral regulation over a draconian one, a clear victory of freedom of thought and behavior over repression. Part I discusses three "moral panaceas," involving motion pictures of the "sex education" variety, burlesque shows, and stage plays that deal with "sexual inversion" (homosexuality). In only the first of these genres did democratic moral authority make much headway against the entrenched paternalism of the moral entrepreneurs. Even here, the effectiveness of the democratic-minded National Board of Censorship of Motion Pictures, which began in 1909 and was active for over a decade, was a result of their adherence to Progressive-Era assumptions that good citizenship meant "Americanized" thoughts and actions. The Board eschewed government fiat, but pressured film makers to depict the rewards of clean living, hard work, and contempt for the immediate gratifications of the libido. It avoided a tone of moral superiority, but was, after all, a collection of middle-class activists, using democratic moral authority for political and public-relations advantage over its adversaries, who called for governmental licensing of the movies. The Women's Municipal League was one of its critics. One of the most interesting of its charges was that the Board was supported by film-related businesses. The League felt that freedom of speech was less important than the freedom of children not to be diverted by licentious popular culture. Therefore, it disapproved of the "sex problem" film, which depicted white-slave traffic and touched on birth control and abortion. The Board supported a case-by-case evaluation, for it understood that inherent in the lurid drama of the subject were important implications about the causes of prostitution, including those related to the gendered double standard of the time. Several of these films, which were in fact declared obscene by local authorities, were "self-consciously feminist," according to Friedman. The Board had partial success in allowing people access to these films.

People who felt that their own identities eventually would be threatened by popular entertainment – people, that is, who felt that such entertainment could and did cause guilty fascination – were aghast at burlesque. Friedman's research is exemplary here. Critics hardly could protest that burlesque debauched children. Instead, they brought attention to the working classes, prostitutes, and loiterers whom burlesque brought with it as it spread during the Depression from the neighborhoods to the Times Square theaters in which stage plays could no longer make money. With arguments similar to those made by mayors from Koch to Guiliani, advocates of regulation (through non-renewal of a theater's license) succeeded by convincing people that the atmosphere of burlesque was responsible for rape and for the destruction of property that its patrons were suspected of committing. The New York Society for the Suppression of Vice had been saying for years that strip shows were a cause of sex crimes. Middle-class citizens and Times-Square businessmen had no trouble accepting these impressions, regardless of a lack of factual basis and regardless of stubborn refusal by the Commissioner of Licenses to observe obscenity law criteria. Instead, he refused to renew licenses if, in his opinion (which coincided with that of another man who knew vulgarity when he saw it, Fiorello LaGuardia), the show appealed to prurience. If it had not, no one would wish to see it. Movies, stage plays, and advertisements for many products appealed to prurience as well, for the same reasons, but The Little Flower had decided most of these amusements were "decent," unless they dealt with homosexuality. The burlesque industry had no choice but to present innocuous skits, avoiding the strip-tease. Paternalistic authority had used moral indignation to defeat any kind of democratically evaluative process for suppressing "vice." "There is no constitutional right to be immoral," said LaGuardia. In 1942, burlesque was outlawed because it was draining the energies of young men in the Service and, indirectly, causing venereal disease. The argument is a distant echo of that used until very recently to exclude gay men from military service.

A fascinating exchange of letters regarding burlesque in New York exists in the papers of Morris Ernst at the Humanities Research Center at Austin, Texas. Ernst was the most influential and politically powerful of the era's First Amendment advocates, and an important figure in the labor movement in the city as well. Although Friedman's use of primary sources is first-rate, it is surprising that Ernst and his brilliant colleague Harriet Pilpel are not mentioned in the book. They were certainly heroes of liberalization of the obscenity laws. Ernst's letters and speeches are also fine evidence of the limitations a legal analyst and activist of free speech would advocate, so that the culture he fought so hard to preserve would not degenerate into what he saw as anarchic self-indulgence. The limits that free-speech advocates place on democratic tolerance, indeed, is not a topic Friedman need consider and still keep her book focused. The awareness of defining limits, and of how fear of sexual anarchy influences social activism, does seep into her discussions.

Legitimate Broadway theater was not as susceptible as burlesque to the New York City government's fiats about what was proper and what was not. Democratic moral authority had been easier to establish here, due to its literate middle-class audience. In the 1920s, however, Broadway shows featured provocative singing and dancing, especially by fashionably dressed (i.e., scantily clad) males and, especially, females. Broadway producers could justify these presentations in a way burlesque could not, for the same stages also presented critically praised and thoughtful modernist dramas centered on the libido and its effects on mature behavior. Burlesque and drama, of course, were examples of the commercialization of sex that was a prime cultural phenomenon of urban life. Conservative moral entrepreneurs focused on the increasing number of plays in which lovemaking and its enticements, and also crude and violent behavior, predominated. Many citizens listened; and theater producers, fearing state-level censorship laws, accepted the concept of letting the jury decide. The assumption was that a jury, usually composed of professional people, had the bona fides to evaluate comedy and tragedy on the legitimate stage. This solution was democratic, in the only way feasible: the middle-class concept of high culture neutralized the moral conservatives' Comstockian preference for decency over highbrow art and science.

The remaining problem was the increasing number of dramas depicting homosexual, and particularly lesbian, desire. They could not be defended, and in 1927 The Wales Law resulted, outlawing "sex degeneracy or perversion" as a theme and allowing a theater to be padlocked if even the smallest segment of a play could be deemed obscene. The law was sponsored by Brooklyn and New York District Attorneys, and it gave them regulatory (and increased political) power. Plays were closed before conviction under the law, until the public furor over the closing of Trio in 1944 cowed even LaGuardia and those Catholic, Protestant, and Jewish clergy who applauded the Wales Law. Friedman shrewdly suggests that the patriotic fervor of the war years helped the triumph of democratic moral authority here, for New Yorkers saw the ugliness of state licensing very clearly after learning of the overseas powers of dictatorship.

The second half of Prurient Interests discusses the social status of individuals and groups that fought either for or against reticence in popular entertainment in New York: anti-vice organizations, women's groups in favor of purity legislation, and clergy of the three major faiths. (Especially interesting is the use of the Catholic boycott and the Jewish response to Asch's play The God of Vengeance and its lesbian characters.) The New York Society for the Suppression of Vice did not relax its attempts to prosecute purveyors of printed materials, as Friedman relates. Its secretary, John S. Sumner, harassed the prestigious Gotham Book Mart during the 1930s and 1940s. But after 1930, at which point bookmen and their lawyers had worked out legal arguments for the protection of materials with literary value, the Society focused on the distributors of comics, pamphlets, and salacious magazines and books sold at newsstands and neighborhood lending libraries. The audience for these was working class men and young women who left home to work in offices, as well as adolescents. These were the "victims" considered most vulnerable to "corrupting" influences: that is, books and magazines that might change the values and behavior they had been taught. Sumner's intransigency did hurt his reputation, but even in 1946 he was able to arrange for the successful prosecution of publishers and booksellers with regard to Edmund Wilson's Memoirs of Hecate County.

In her penultimate chapter, Friedman asserts that democratic moral authority was "gendered," and thus repressive of women, if in a different way than were the moral conservatives of the progressive era. The latter wanted to protect "decent" women, and to help them guard their children, by preventing dissemination of "obscene" materials about, for example, contraception and abortion. Liberals wished to develop legal precedents that made the tolerance of the "average person" the criterion for what could be considered enlightening and interesting, even if it might stimulate prurient interest. Friedman states that this meant the values of the average man, not the average woman. Her evidence is that advocates of liberalized censorship laws denigrated not only clergymen and the moralists of the anti-vice societies, but the club women who campaigned alongside them. Therefore, all were "feminized," and seen as both prudish and "maternal." But Friedman gives no specific examples of this rhetoric at work, explicitly or implicitly, in the statements of liberal jurists, politicians, or activists. Nor does she explain whether or not the other cornerstone of liberalization of obscenity law, the concept of literary value, worked to silence women. She acknowledges that some of the founding members of the National Council for Freedom from Censorship were female, and that such organizations espoused women's issues. She probably would acknowledge that women such as Margaret Anderson, Radclyffe Hall, Marie Stopes, Margaret Sanger, and Frances Steloff had good reason to be grateful to advocates of democratic moral authority. But far more significant is that "when women anticensorship activists assumed the mantle of the average person, they had to forsake their gender identity in a way men did not."

Furthermore, Friedman points out that commercial depictions of sex "set women's sexuality apart as other." True, although her discussion of burlesque is open to more nuanced conclusions about what the performers conveyed. She also says that popular entertainment "denigrate[d] female same-sex intimacy." Yes, but to what extent? The stage dramas about lesbians she discusses in Chapter 3 had cautionary endings, which were probably concessions to public taste. But the characters were often sympathetic, and those final scenes made people think. Many sex pulp novels of the 1930s angered conservatives because they depicted young urban women as independently choosing and testing the men in their lives. A body of paperback originals in the late 1940s was written by gay women using male pseudonyms. They were advertised salaciously, but some were honest and positive portrayals of lesbians. A case can be made for their being nascent celebrations of same-sex desire.

In her conclusion, Friedman considers Andrea Dworkin's appearance before Attorney General Meese's Commission on Pornography. Dworkin made common cause with religious fundamentalists and conservative politicians in requesting governmental regulations forbidding the lucrative sexually explicit materials that were allowed under the ideals of democratically-oriented moral authority. Dworkin felt that all of the reforms that had allowed the average person access to pictures, books, and films had degraded women, and that the strictest punitive legislation was needed. She spoke as a citizen on behalf of a group that had been excluded from its own democratic right to be protected from victimization, and in so doing made common cause with advocates of the child's right to be protected. These proponents of a stricter governmental control are sure they know what is and is not harmful, just as proponents of the Hicklin rule were sure. The later were equally sure that what might harm children (and women) should not be available to average citizens. It was these absolutes that democratic moral authority challenged. But what happens when advocates for children and women complain that their democratic rights are ignored, and when harm is specified as "patriarchal" commercialization of sex? Friedman ends by showing the fluid and unstable definitions to which the concept of average person and his/her needs can give rise, if "harm" is not so powerfully specified that there is a consensus on what it is. Is it possible to do so?

Jay A. Gertzman, professor emeritus of English at Mansfield University of Pennsylvania, is studying the book shops of the Times Square area during the time of transition (1945-70) between the era of the general-interest and the adult book store. He is author of Bookleggers and Smuthounds: The Trade in Erotica: 1920-1940.

A Historical Introduction to the Law of Obligations
David Ibbetson
New York, NY: Oxford University Press, 2000
Cloth: $60.00
Pp. 352
ISBN: 019876412X

The Modern Law of Estoppel
Elizabeth Cooke
New York, NY: Oxford University Press, 2000
Cloth: $74.00
Pp. 220
ISBN: 0198262221

From Britain come two books that look at civil liability without fitting every form into a pigeonhole. In the United States, we are aware that civil lawyers frequently speak of "the law of obligations" to cover all forms of non-criminal liability, but we rarely use that terminology here. Yet in these two books we find our common law ancestors, the English, doing just that.

David Ibbetson is a Lecturer in Law at Oxford who has written many articles on sales and contract law in the middle ages. Now, in just 302 pages he seeks to describe the law of obligations from a verbal insult case in the Wallingford Burghmote in 1232 to a 1998 Chancery case involving restitutionary damages for breach of contract. In fact, his forward cut-off date is April 25, 1999, and he discusses roots going back at least as far as Roman law in the 2^nd Century A.D. Happily, Mr. Ibbetson is a graceful writer and his book is always interesting. It has so much information on each page, however, that it is not a book to skim; I found I could only read a few pages at a time if I wanted fully to comprehend the material offered me.

Elizabeth Cooke, who endearingly signs the Preface to her The Modern Law of Estoppel "Lizzie Cooke," is a Lecturer in Law at the University of Reading. Her book is rather detailed for an American reader, but it also is well written. It carefully delineates the fine distinctions among the many kinds of English and Commonwealth estoppels. After having clarified the variants, she calls for their abolition in favor of a unified view that would eliminate the formal distinctions that are erratically made. Her book will be invaluable to anyone writing on or litigating estoppel based on English law. But where the Ibbetson book is really about our common heritage, Cooke is writing about the English version of a concept that has developed rather differently in the United States, and thus offers a survey with more detail than most American readers would need or want, interesting though it is.

In his Preface, Ibbetson writes that his book "is a history of legal categories, concepts and doctrines; the mechanisms used by lawyers to organize their thoughts." After a short "prehistory" of the English law of obligations, he devotes about 85 pages to that most incomprehensible subject, "form and substance in medieval law," and about 60 pages to "the triumph of trespass on the case," before attempting to cover "the modern law of tort and contract" in 110 pages and unjust enrichment in 20. Since his modern period begins somewhere in the 17^th Century (understandable in a medievalist), his actual discussion of contemporary law is quite sketchy. We can hardly expect Ibbetson to do in forty or fifty pages what Allan Farnsworth does in a thousand or Arthur Corbin in twelve volumes. But if his description of our destination is thin, the ride we take to get there is well worth the trip.

It is not necessary that a history paint a cohesive and structured picture of a subject. Life doesn't always develop according to rules; a history of chaos might properly be chaotic. The book is interesting for its own sake in describing legal matters from long ago, but Ibbetson also illuminates modern law by showing us ancient antecedents of ideas that still are controversial. Consider modern calls for a return to Lord Mansfield's 19^th Century use of merchant juries and the arguments for expert arbitration in medical malpractice cases. In 1329, a royal judge "expressed considerable reluctance to hold liable doctors or other 'men of occupation' – 'men of mystery' – accused of professional incompetence." Ibbetson speculates that this may have been because of distrust of lay juries, and shows that the problem could be sidestepped, at least in the local courts: "[i]n a case in Chester [in 1302], a jury of tailors was impaneled to say whether work had been properly done . . . . Alternatively, the parties might put themselves on the arbitration of appropriate professionals: . . . [in 1424] a panel of surgeons and barbers held that the patient's failure to respond to treatment was the patient's own fault or the result of the Moon's being in Aquarius . . . ." (64 & n. 40)

He also shows that some of our most basic modern issues have their origins in the early years of the law of obligations. An important example is the perennial debate over damages for repudiation of a purely executory contract. Consider this basic hypothetical: one day after making a contract with Pierre, Armand repudiates it. It is standard law that Pierre, who has in no way relied on Armand's promise, is entitled to his full expectation damages, though this seems like a windfall. Those who object argue that Pierre should get only his reliance damages, the amount he actually lost, not what he failed to gain. This dispute reflects the medieval distinction between the writ of debt, a basically proprietary right, and the writ of trespass, based on an injury directly done to the plaintiff. By the mid-13^th Century the new action of covenant took on aspects of both of these earlier writs, involving plaintiff's entitlement, but also the injury and shame done to plaintiff. As Ibbetson explains:

This ambiguity was never quite resolved. One pervasive theme of the next seven centuries of legal history was the friction on the boundaries of the action for breach of contract – on the one hand, between it and the action to give effect to a contractual entitlement, and on the other, between it and a straightforward action in tort. The scars are plainly visible in the Common law of the end of the twentieth century. (23)

The early covenant cases covered many forms of agreement: Ibbetson cites a case from 1226 apparently involving the construction or repair of a bell tower, and notes that the Statute of Wales, enacted in 1284, said "without any hint of awkwardness, that there were as many forms of writ of covenant as there were types of agreements." (22) But, in the early years of the next century, defendants began arguing that the writ should be available only for written and seal instruments, and by the mid-14^th Century this became the rule. This forced litigants suing on an "informal contract" – that is, one not under seal – to improvise, using several other writs. But each of these had drawbacks. For instance, the older writ of debt permitted defendants to "wage their law," that is, deny under oath that they owed the debt and proffer eleven "oath-helpers," who would support the denial, often perjuriously. No investigation was done as to the truth. The wager of law simply ended the case, and while it eventually lost favor, in the process, it undermined the writ of debt. Other writs were basically proprietary, and did not lend themselves to actions by disappointed buyers or those seeking payment rather than possession. All this led to a fragmentation of the remedies for informal contract.

The common law was much more concerned with forms of action than theories of general liability, and this had a great impact on contract. Ibbetson uses breach of warranty to illustrate this, pointing out that the issue of the quality of the goods could be raised in three different procedural postures: a trespassory action for breach of warranty, as a defense to an action for debt brought by the seller, or as the basis of a full fledged action for debt by the buyer, seeking return of the purchase price. "Unsurprisingly, it was a long time before the Common law could begin to generate any coherent theory about the nature of contractual terms." (36) While Littleton wrote his Tenures, an abstract treatise on real property, in the mid-15^th Century, it was three hundred more years before the first treatise on contract was attempted, and even a generation later there still appeared "Blackstone's apparently curious and incoherent treatment of the law of contract, uncomfortably split between the law of property and the law of wrongs." (28, 36, 218)

While informal contract had this fragmentation of remedies, redress for physical injuries primarily used the writ of trespass, an ancient writ that focused, as did the substantive medieval law of torts, "on invasive interferences with land, the person, and chattels." (96) As other forms of injury became more common, the writ of trespass on the case developed in the 1360s out of the older writ of trespass. From trespass on the case came both the action for negligence and that for assumpsit. Ibbetson traces this closely in the middle third of the book (95-187), and he shows that as late as the 1860s and 1870s, five hundred years after its beginnings, "[t]he action on the case straddled a whole range of claims, some of which were clearly contractual, some of which were clearly tortious, and some of which were clearly ambiguous." (170) At the same time, the increasing judicial supervision of juries led to the formalization into rules of many items that previously had been left to juries. (188, 233)

Ibbetson does not deal only with procedural matters. He delves deeply into issues such as the role of fault in tort (Chapter 8: "Trespass, Case, and the Moral Basis of Liability"), the requirement for and meaning of consideration in contract (202-206, 236-241), and the development in the 18^th Century of contract theory, which he shows to have been heavily influenced first by Hobbes's writing on social contract and then by continental natural lawyers, particularly Pufendorf (215-219). He devotes a chapter to the rise of the will theory in the 19^th Century (220-244), showing its great debt to Robert-Joseph Potier, whose 1761 Traité des obligations was translated into English in 1806, and concludes his discussion of the modern law of tort and contract with a chapter on the will theory's decline, subtitled "Legal Regulation and Contractual Fairness." (245-261) To be sure, others, such as Brian Simpson, James Gordley, and Patrick Atiyah, have written at great length on these matters, but Ibbetson gives them a good overview in not many pages. He concludes his discussion of substance with a short history of unjust enrichment (264-293), which I found very useful and which will be valuable to anyone who, without deep delving, wants some historical grounding in restitution.

One area that Ibbetson virtually ignores is estoppel. He has only four brief references, two of which deal with it on a more than generic level. Elizabeth Cooke, on the other hand, devotes an entire book to the subject. It is important at the outset to understand that the English and the British Commonwealth treat estoppel as a much more technical matter than we do. To begin with, there are many different types of estoppels, and yet it is an overriding and broad concept; Cooke asks whether estoppel is one concept or many. She endorses the great Lord Denning's words: "Estoppel . . . is a principle of justice and of equity. It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so." (2, quoting from Denning, M.R., in Moorgate Mercantile Co,, Ltd. v. Twitchings, [1976] 1 Q.B. 225, 241 (C.A.)) She also, however, quotes the same Lord Denning in a later case:

[T]here has been built up over the centuries in our law a big house with many rooms. It is the house called Estoppel. . . . . By our time we have so many rooms that we are apt to get confused between them. Estoppel per rem judicatem, issue estoppel, estoppel by deed, estoppel by representation, estoppel by conduct, estoppel by acquiescence, estoppel by election or waiver, estoppel by negligence, promissory estoppel, proprietary estoppel, and goodness knows what else. These rooms have this much in common: they are all under one roof. Someone is stopped from saying something or other, or doing something or other, or contesting something or other. But each room is used differently from the others. . . . (3-4, quoting from Denning, M.R., in McIlkenny v. Chief Constable of the West Midlands, [1980] 1 Q.B. 283, 317 (C.A.))

Cooke says that a key issue for the book is the tension between these two statements. She begins by categorizing the many types of estoppels, most of which sound unfamiliar to Americans (6-32), and then turns to the most famous and influential British estoppel case, Central London Property Trust Limited v. High Trees House Limited, [1947] K.B. 130, also by Lord Denning, when he was merely Denning, J., of the King's Bench. (Lord Denning, who recently died at 100, was probably the most influential English judge of the 20^th Century, perhaps since Lord Mansfield. He was influential as a barrister, as a trial level judge, and as a member of England's highest court, the House of Lords. But he had his greatest impact when he became Master of the Rolls – the head of the intermediate, but very important, appellate court, the Court of Appeal.)

High Trees, a relatively early decision by Lord Denning, is the most important English contract case of the century. Though technically a dictum, Lord Denning's speech adopted the concept of promissory estoppel as a defense in an action to recover rent that the landlord had agreed to reduce because of World War II. Nonetheless, in later cases Denning also established the rule that promissory estoppel could only be used defensively and not to support an affirmative claim (as in the famous American case of Hoffman v. Red Owl Stores, 133 N.W.2d 267 (Wis. 1965)). On the other hand, whatever reliance needed to be shown did not have to be detrimental; the mere fact that the tenant paid the lower rent was the detriment, even though it was obviously a benefit for it to pay less rent, "which [says Cooke in an understatement] seems strange." (38)

There is, however, another British term, "proprietary estoppel," as far as I can tell unknown to American law. Proprietary estoppel originally involved a landowner, A, leading or allowing B to believe he has an interest in land, and B relying on the belief to his detriment. In that circumstance, B is allowed to bring an affirmative action to enforce the interest he was led to believe he had. Proprietary estoppel differs from promissory estoppel, at least of the High Trees variety, in that it requires actual detriment in the reliance, but permits an affirmative claim rather than just a defense. In the United States, we would treat both cases as promissory estoppel, would generally allow an affirmative claim, and in most states would not worry much about the degree of detrimental reliance, though we probably would require some. In England, the distinction has often been crucial, but increasingly judges and writers have found the distinction unhelpful, and have called for a unified concept.

The remainder of Cooke's book consists of putting forth a new framework for estoppel, drawing from the substance of the various rubrics without regard to the name used. She also looks at Australia, where a unified estoppel has led to affirmative claims being allowed generally. She considers whether England should follow the American and Australian lead, but concludes that it won't happen soon, and does not seem terribly troubled by that conclusion.

Part of Cooke's reasoning is that in her words, that "[t]he home of estoppel, here, is with contract rather than tort. By contrast, estoppel in Australia is conceived as being much closer to tort." (167) That brings us back to Ibbetson, who in his last chapter muses on continuity and change in the law, the fact that the common law develops largely through litigants seizing on points of existing law to advance their own interests before courts that prefer not to admit that they are changing the law. Cooke's work is intelligently descriptive of how estoppel developed in specific cases involving specific litigants' needs, how the vagaries can be ironed out in the interest of rationality, and how estoppel can be modestly refined, but she seems to have little interest in more than that. Without meaning to be derogatory, her book reminded me of an excellent student note in a first-rate law review – taking a confused subject, straightening it out, but not really proposing much different, except terminology.

I must admit that I found much more interesting a short article by another English writer, John Wightman, of the University of Kent Law School in Canterbury, "Intimate Relationships, Relational Contract Theory, and the Reach of Contract," 8 Feminist Legal Studies 93 (2000). Wightman was discussing non-marital cohabitation cases, but it was his discussion of contract that seized my attention. He spent much of his article on an Australian case, W. v. G., [1996] 20 [Australian] Fam. L.R. 49, in which the New South Wales Supreme Court found an "equitable estoppel" requiring G, a woman who had been in a lesbian relationship, to pay child support for the two children her partner W had conceived by artificial insemination. The court found a promise to care for the children from the fact that G had taken part in the insemination process, at least to the extent of keeping the donor's semen warm by holding it near her body. At the time of the alleged promises, G had no great amount of money, but she came from a wealthy family and later inherited hundreds of thousands of Australian dollars. The court based the child support not on what W might have expected at the time of her reliance, but on G's current wealth, which, of course, was much greater. Wightman, who applauded the result, nonetheless pointed out the artificiality of the estoppel analysis, and instead proposed application of the relational contract theories of Ian Macneil. Cooke, who discussed several Australian cases (158-165), did not discuss W. v. G. More important, she never attempted an analysis that moved outside the rather tight box set up by the English and Commonwealth estoppel cases.

Perhaps I am being unfair to Cooke, who calls for flexibility and change as the essence of estoppel. That her book lacks the scope of Ibbetson's is no crime, given their different topics. That she does not make radical suggestions like Wightman is equally no sin. But the result is that her book is useful, while their works are exciting. Her book valuably sharpens the focus for anyone interested in English estoppel law. Ibbetson's expands the understanding of anyone interested in the law.

Peter Linzer is the Law Foundation Professor at the University of Houston Law Center and the editor of A Contracts Anthology (Anderson Publishing, 2^nd ed., 1995). His last piece in Books-on-Law was a commentary on a 1953 book review by the late Arthur Corbin of Yale Law School.

Diversity and Distrust: Civic Education in a Multicultural Democracy
Stephen Macedo
Cambridge, MA: Harvard University Press, 2000
Cloth: $45.00
Pp. 343
ISBN: 0674213114

How does a liberal constitutional democracy committed to free self-government ensure that its citizens develop the capacities, dispositions, and traits of character that make such self-government possible? If public schools are a primary means for doing so, what is the scope of their legitimate civic purposes? In a nation of tremendous diversity, and in which differences often seem to pit groups against each other, how may diverse persons develop mutual respect and unite around shared principles of political morality? And how, in a constitutional order that vouchsafes a sphere of individual liberty and freedom from governmental interference, might government act so that persons care about and attend to civic life?

A familiar answer to these questions is that liberalism lacks the resources to sustain free self-government because it requires government to be neutral concerning the question of what it means to live a good life and, therefore, cannot promote ideals, virtues, or values. This supposed commitment to neutrality results in an impoverished political philosophy that precludes liberalism from pursuing the sort of "formative project" that would be necessary to develop in citizens those capacities, dispositions, and virtues necessary for self-government. (See, e.g., Michael Sandel, Democracy's Discontent (1996).) This line of critique of liberalism, found in prominent civic republican and communitarian work, focuses especially on the political liberalism of John Rawls. (See John Rawls, Political Liberalism (1993).) Such critics find unsatisfactory political liberalism's argument that, in light of the fact of a diversity of reasonable comprehensive religious, philosophical, and moral doctrines, it is inappropriate for government to promote any comprehensive doctrine and that, instead, a basis for political stability and cooperation may be found in shared agreement upon political principles.

By now, an important body of liberal political theory has responded to this critique of liberalism's supposed impoverishment. Some of this work, such as that of William Galston and Joseph Raz, has done so by distinguishing itself from Rawls's political liberalism and by rejecting neutrality. (See William Galston, Liberal Purposes (1991) and Joseph Raz, The Morality of Freedom (1986).) But some liberals have, instead, chosen to work within the general framework of political liberalism. Among such theorists, perhaps none has defended liberalism as powerfully and persuasively as Stephen Macedo. In his splendid first book, Liberal Virtues (1990), Professor Macedo offered a robust account of liberal virtues, and carefully refuted communitarian charges that a commitment to a strong principle of toleration for diverse ways of life entailed governmental neutrality about the virtues that are important to a liberal constitutional order.

In his significant new book, Diversity and Distrust: Civic Education in a Multicultural Democracy, Macedo carries his project further by elaborating a "civic liberalism" that invites more explicit attention to what a liberal government may and should do to foster the virtues and skills necessary for self-government. His basic argument is that a focus on the liberal "foreground" of individual freedom (as reflected in the basic constitutional "negative" liberties), order, and prosperity tends to obscure the "background" of other liberal political values and virtues upon which good citizenship and a healthy civic life depends. His "civic liberalism" would bring that background closer to the foreground and call attention to "the ways in which public policies and institutions of different kinds shape and educate in direct and indirect ways." (10) He contends: "The success of the negative constitutional project of individual liberty depends on a more positive, transformative enterprise that aims to shape normative diversity in a basic way, to foster a civic life supportive of liberal citizenship." (10)

Diversity and Distrust illustrates that "transformative" liberal project by addressing how public schools, through pursuing civic education, may and should shape diversity to further legitimate civic aims. It rejects understandings of multiculturalism that are so expansive that they threaten the possibility of any shared civic life or allegiance to shared civic aims. At the same time, it attempts to "give both diversity and shared values their due" by defending a "reasonably confined but tough-minded liberalism." (12) That liberalism is "tough-minded" in insisting upon taking reasonable measures to inculcate "specifically political virtues," even though doing so will have non-neutral consequences for religious beliefs and ways of life. It is "confined" by not seeking to advance virtues that are "ideals of life as a whole," thus attempting to honor political liberalism's restraint from government taking sides on the question of the good life. (12) Within this guiding framework, it revisits familiar conflicts between schools and fundamentalist parents over curriculum aimed at encouraging such political values as respect for differing ways of life and the capacity for critical reflection, but perceived by such parents as threatening their beliefs and ways of life.

Professor Macedo's lucid and beautifully written book is a provocative and important contribution not only to liberal political and constitutional theory, but also to pressing public policy debates in the United States over education. No doubt, education is an issue at the forefront of current public discussion as well as political campaigns. Yet current talk about testing, school reform, and the merits of increased parental choice as to public versus private schools seems to miss the vital dimension of the civic aims of common schools. Macedo revisits the early history of the establishment of common public schools in the 19^th Century to argue that it was those civic aims – to forge out of a diverse group of children a respectful community of fellow citizens and to foster commitment to a shared public morality – that animated the common school idea. He further argues that an appreciation of that history, and the kind of objections made then to using schools to pursue those civic aims, may usefully inform contemporary debates over the civic agenda of public schools.

The appeal to the past confronts Macedo with two considerable challenges: addressing the mixed motives that attended the birth of the common schools and reckoning with the centrality of Bible reading to the civic educational mission of those schools. First, as he repeatedly acknowledges, the history of the common school idea reveals not only "legitimate" civic concern for shaping diversity, at a time of enormous immigration and ethnic and religious differences, and equipping children from such diverse backgrounds for citizenship. It also reveals a prominent role played by hostility, prejudice (especially anti-Catholic prejudice), and racialism among the white Protestant politicians and civic leaders at the forefront of the movement. (58-61)

Here, Macedo is in a tricky situation. He does not seek to offer an apology for "nineteenth century American nativism, anti-Catholic prejudice, or racism." (63) Yet, he wishes to affirm the "legitimate" civic aims of the common schooling movement and, indeed, contends that there were – and are still – some "genuine conflicts between some religious groups and the civic life of a liberal democracy." (42) The "civic anxieties" about diversity shared by the early proponents of the public schools were not unfounded, he contends, in light of "institutional Catholicism's hostility to free self-government," manifest, for example, in its "authoritarian institutional structure," its "insistence on close ties between church and state, its endorsement of censorship, and its rejection of individual rights to freedom of conscience and worship." (61) Indeed, Macedo credits the "Catholic encounter with America" as in part responsible for the subsequent decisive transformation of the doctrines of the Catholic Church, making it more supportive and sympathetic to liberal democracy. (87) Today, Macedo states, it is more likely to be fundamentalist Protestants, rather than Catholics, who complain about public schools. (87)

The second challenge facing Macedo's invocation of history is the fact that a centerpiece of the "civic" curriculum in the common schools was Bible reading. Macedo tells a fascinating story of how proponents defend such "nonsectarian" Bible reading as indispensable to shore up support for morality and, thus, democratic self-government. Because such schools required Bible reading alone, without aid of religious commentary or the interpretation of religious authorities (in contrast to Catholicism), this was perceived to be "nonsectarian." Of course, there was hardly consensus on this view, and many religious groups perceived this to be unfair, triggering the advent of many religious schools. Nonetheless, it puts Macedo, as a political liberal, in the delicate situation of arguing that, although within the 19^th Century historical context such reading of a religious text was plausibly nonsectarian, because proponents assumed that the moral education that would support democracy must have a religious foundation, it is neither necessary nor appropriate today for civic education to include such scriptural reading.

What Macedo wishes to rescue from this Bible reading curriculum is the idea of a "nonsectarian" core curriculum that can achieve broad-based consensus among persons of diverse religious faiths. But despite this bold rescue, contemporary proponents of Bible reading in the schools might draw quite different inferences from this history and view constitutional jurisprudence prohibiting such reading as especially pernicious. And a prominent theme in calls to renew civil society is that religious institutions should play a vital role in reminding the polity of central religious truths, which are said to undergird a shared political morality. (See Linda C. McClain & James E. Fleming, "Some Questions for Civil Society-Revivalists," 75 Chicago-Kent Law Review 301 (2000).)

The important question that Macedo's recourse to history brings to contemporary readers is what, today, should be the role of common schools and the content of the civic education they foster in order to support a "public moral order"? Macedo contends: "Common schools remain especially appropriate vehicles for inculcating the civic virtue of mutual respect for those who differ with us in their religious convictions or beliefs about the good life." (232) Revisiting the famous case of Mozert v. Hawkins (6th Cir., 1987), in which fundamentalist parents unsuccessfully attempted to secure an exclusion of their children from a curriculum that they regarded as threatening to their beliefs, he claims that what was at stake was a reasonable attempt to inculcate "core liberal values" of learning about religious differences that peacefully coexist among fellow citizens. (157-168)

But more than teaching tolerance and mutual respect is at stake: civic liberalism seeks to ensure that "all children . . . have an education that provides them with the ability to make informed and independent decisions about how they want to live their lives in our modern world." (207) Learning about "the ethnic, racial, and religious diversity that constitutes our society" is to help children think as citizens and "not live in a mental straitjacket at odds with freedom." (240) Just as in Liberal Virtues, Professor Macedo's new book gives center stage to the core liberal virtue of critical self-reflection. And just as there, so here that capacity has an unavoidable and salutary spillover into "all departments" of one's life and upon inherited notions about proper roles: "A basic aim of civic education should be to impart to all children the ability to reflect critically on their personal and public commitments for the sake of honoring our shared principles of liberal justice and equal rights for all." (239) Thus, "good liberal citizens will be alert to possible conflicts between their religious convictions and civic demands." (240) The justification for such an education rests in the "basic fact that children are independent persons-in-the-making with their own basic interests and their own lives to lead." (232) Here, Macedo counters the familiar constitutional principle that parents have a right to rear and direct the education of their children because children are not "mere creatures of the state" (Troxel v. Granville (2000); Pierce v. Society of Sisters (1925)) with the principle that neither are children "mere creatures of their parents." (243)

In stressing how deeply liberal virtues should shape citizens' lives, has Macedo fallen off the "tightrope" that he says civic liberals must walk "between emphasizing the great weight of shared political aims but, so far as possible, avoiding taking sides on the wider religious dimension of political matters and allowing that reasonable citizens may disagree about their religious and some of their basic philosophical views"? He makes a persuasive argument that critical reflection is vital to democratic self-government and good citizenship, but it is clear that his liberalism seeks to cultivate such reflection as a component of a good life. If he keeps his balance, it is by emphasizing that the reason to bring the capacity for critical reflection to bear upon "all departments" of one's life is for the purpose of honoring political principles and liberal justice.

Many questions abound. I, for one, would be interested to learn what civic liberalism would have to say about how liberal principles should inform family life. Especially relevant here would seem to be Macedo's exhortation of liberal citizens to be "alert to the possibility that religious imperatives, or even inherited notions of what it means to be a good parent, spouse, or lover, might in fact run afoul of guarantees of equal freedom." (239) Unfortunately, Macedo does not discuss the close association between religious fundamentalism, with a literal interpretation of scripture, and a system of family governance premised on traditional gender roles and male authority/female submission. Surely, this sort of household would seem to be in tension with public values of sex equality and anti-subordination. Liberal feminists such as Susan Moller Okin have urged greater attention to the problem of how families can serve as "schools for citizenship" if family governance structures are unequal and unjust. (See Susan Moller Okin, Justice, Gender, and the Family (1989), Okin, Is Multiculturalism Bad for Women? (1999).)

And yet, if such family commitments are inconsistent with liberal principles of justice and equal freedom, or if they might hinder children's development of the capacities for democratic and personal self-government, then is it enough simply to rely on civic education of children to encourage critical reflection? Given the constitutional commitments to parental autonomy, freedom of religion, and rights of intimate association and liberty, heavy-handed governmental intrusion into family governance seems unwise and at odds with liberal toleration. Government appropriately uses its coercive powers to regulate households to protect against violence, abuse, and other forms of domination. And if a commitment to a particular way of life sanctioned such behavior, toleration should not stay government's hand. But with respect to less extreme patterns of belief and action that still may be in tension with civic liberalism's commitments, it would be interesting to know whether Macedo would extend to families his general call for governmental use of "gentle" measures, short of coercion, to shape institutions better to support liberal principles and sustain civic virtue.

These are difficult questions to answer because they return to the basic tension between a governmental formative project that pursues legitimate civic aims and a project that intrudes too deeply into how persons live out what they view as a good life for them. In the end, Diversity and Distrust seems to live with, rather than to resolve, this tension. Thus, near the end of the book, Macedo states that "we should prize and preserve the tension between the shared civic values represented by public schools and the particular moral and religious values of families, churches, and other moral communities;" such pluralism is appropriate for an "extended republic" that fosters cross-cutting memberships and complex identities and guards against any one source of authority having final say. (250-251) And yet, if citizens are to assess those same memberships against liberal principles, and if civic liberalism is to pursue the transformative project that Macedo urges, it is likely that liberalism's civic values will have primacy, or, at least, be first among equals.

Linda C. McClain is Professor of Law at Hofstra University and is the author of a number of law review articles addressing civic republican, communitarian, and feminist critiques of liberal jurisprudence and political theory and advancing a liberal feminist approach. Currently, she is working on a book, Fostering the Capacities for Self-Government. Earlier this year, Professor McClain was a co-editor of a symposium on "Legal and Constitutional Implications of the Calls to Revive Civil Society," published in the Chicago-Kent Law Review, volume 75, to which Professor Macedo contributed an article. She recently was on a panel on civic virtue with Professor Macedo at a conference on "The Constitution and the Good Society," held at Fordham University School of Law.

Editors' Note: For a Books-on-Law review of related interest, see Lawrence E. Mitchell's review of Liberalism and the Limits of Justice (Cambridge University Press, 2^nd edition, 1998) by Michael J. Sandel. See also Anthony J. Sebok's review of The Problematics of Moral and Legal Theory (Harvard University Press, 1999) by Richard Posner; James M. O'Fallon's review of Taking the Constitution Away from the Courts (Princeton University Press, 1999) by Mark Tushnet; and Stephen Guest's review of Law and Legal Theory in England and America (Clarendon Press, 1996) by Richard Posner.

Justice and the Prosecution of Old Crimes: Balancing Legal, Psychological, and Moral Concerns
Daniel W. Shuman & Alexander McCall Smith
Washington, DC: American Psychological Press, 2000
Cloth: $39.95
Pp. xi, 142
ISBN: 1557986932

Because this book was published by the American Psychological Association, I initially thought it would focus on the repressed memory debate – the heated controversy over suits involving individuals who claim that, with the help of therapists, they have recently remembered sexual abuse from long ago. In part, the book is about that, and about unprosecuted sexual assault cases more generally. But in at least equal measure, the book examines an entirely different type of "old crimes:" crimes committed during war and other fractured periods that went uncharged, not because they were undiscovered but because justice was simply not available at the time.

Daniel Shuman, a law professor at Southern Methodist University Law School who specializes in mental health law, and Alexander Smith, a professor of law at Edinburgh University in Scotland whose expertise is international jurisprudence, claim that examining these two types of cases together helps "sort out which crimes should be left to the past and which should not." (ix) Their sophisticated, yet accessible, exploration of these two categories does, indeed, enrich our understanding of the factors that ought to be considered in deciding whether to prosecute old crimes. What is not as clear from the book is how to apply these factors in the "sorting out" process.

Chapter One recounts a number of fascinating stories about criminals who were never prosecuted, or only prosecuted long after their crimes. Some examples: Samuel Bowers, a Ku Klux Klan member who was known to have been involved in the deaths of 1960s civil rights activists, but who was not convicted for their murders until thirty years after they occurred; Rudolph Kos, a former Roman Catholic priest who in 1998 was sentenced to life in prison for sexual assaults of four boys occurring between 1981 and 1992; "D.L.D.," a man accused of abusing a pre-teen daughter who had waited twenty years before informing the police about her father's alleged depredations; Gerald Regan, a Canadian politician, acquitted on eight counts of sexual assault spanning back forty-two years; George Franklin, charged with the rape and murder of an eight-year-old girl, after being accused by a woman whose "repressed" memory of the event was triggered by looking at her own daughter; the "interrogators" of South African nationalist leader Steven Biko, found dead in his cell in 1977, who were identified in the 1990s and eventually granted amnesty in compliance with the new South African Constitution; John Demjanjuk, prosecuted in the 1990s for tortures and murders perpetrated by "Ivan the Terrible" in Nazi concentration camps, but ultimately discharged by the Israeli Supreme Court because of insufficient proof that he was Ivan; and the still unnamed perpetrators of numerous crimes committed in now democratic countries during periods when autocracy and paranoia prevailed.

The rest of the book looks at these types of scenarios through a number of lenses. Chapter Two analyzes old-crimes prosecutions from the perspective of the traditional purposes of punishment (retribution, denunciation, general and specific deterrence, incapacitation, and rehabilitation), and also explores potentially mitigating time-based factors such as change-of-identity claims and old age. Chapter Three describes the role of forgiveness, which arguably grows greater as time goes on. Chapters Four and Five look at formal legal responses to time lapses between crimes and their prosecution or punishment, including statutes of limitations, amnesty, and pardons. Chapter Six describes the difficulties of remembering and accurately reporting long-ago events (and includes thoughtful, if not particularly detailed, analysis of the repressed memory studies), and Chapter Seven describes the difficulties of determining when prosecution of such incidents is therapeutic for the victim and when, instead, it is unduly traumatizing. The concluding chapter tries to synthesize all of these concerns, and suggests that certain old crimes – war crimes, homicide, and perhaps sexual assaults – ought to be prosecuted, at least if within living memory, but that disposition of other long-ago crimes should be governed by statutes of limitations, albeit generous ones when the crimes are serious.

Crimes might not be prosecuted near the time they are committed for a number of reasons. First, of course, we may not discover the crime occurred until well after it happens. If we are to believe proponents of the repressed memory phenomenon, for instance, the victim may not remember the criminal event at all, at least by the time he or she is old enough to trigger some sort of legal action. Even if the crime is remembered, the victim may not report it due to an inability to do so, or fear of reprisal, or ignorance that it is a crime – all particular problems with young victims of sexual abuse. Second, we may know or strongly suspect a crime has been committed, but be unable to develop sufficient proof against the perpetrator until many years have passed, a scenario we are likely to see increasingly with the advent of DNA analysis of old-crime-scene specimens. Finally, even reported or known criminals might not be prosecuted, either because the state formally sanctions their crimes (as in Nazi Germany and other repressive regimes), or because most members of the relevant society believe that the crimes aren't within the purview of the criminal law (as might have been true with intra-familial assaults decades ago) or that they are somehow justified (perhaps true of some crimes against civil rights workers in the mid-60s South).

Assume, however, that we have identified the perpetrator of a long-ago crime and are willing to prosecute. Shuman and Smith point to a number of factors that militate against doing so. The outrage associated with the harm may have died, making forgiveness more palatable. The perpetrator may be very different now than he was then and, indeed, as in the recent case of General Pinochet, may be on the verge of death; these developments also can provoke empathy leading to forgiveness, and certainly undermine punishment on specific deterrence, incapacitation, or rehabilitation grounds. Stale evidence, faulty memories, and crowded dockets are more prosaic barriers to tardy prosecutions.

Moreover, delayed prosecution may be very harmful to some victims. Many of the survivors of the Holocaust were unwilling to testify against concentration-camp mastermind Adolph Eichmann, presumably because of the painful memories he engendered; and research on child victims indicates that testifying in court may exacerbate mental and emotional problems caused by abuse. Furthermore, a policy which encourages victims to hope for justice may lead instead to the nursing of old resentments that eventually fester into obsessions. For similar reasons, it can be healthier for society as a whole to forgive, if not forget, some sorts of crimes, a possibility illustrated by the experience of South Africa's Truth and Reconciliation Commission, which has granted amnesty to hundreds of those involved in maintaining apartheid on the condition that they fully confess to their transgressions.

These are powerful reasons to be hesitant about prosecuting an old crime. But, Shuman and Smith emphasize, there are many countervailing pressures. Foremost among them are the punishment goals of retribution, denunciation, and general deterrence, which push toward adjudicating even very old crimes, at least when they are serious ones like those described in Chapter One. The desire for retributive vindication is much less likely to dissipate for such crimes. Similarly, proponents of the expressive view of punishment would want the transgressors to be denounced vigorously as a means of reinforcing humanity's values; probably, these proponents also would insist that the denunciation occur through the criminal process, because criminal punishment is the only satisfactory mechanism for expressing communal opprobrium toward genocide, sexual assault of children, and like acts. Finally, a trenchant policy of prosecuting serious old crimes will ensure that would-be war criminals know they cannot hide behind the exigencies of strife, and that assault-prone parents realize they cannot elude the law simply by keeping their young victims quiet until majority.

As they did in collecting arguments against prosecution of old crimes, Shuman and Smith's development of the other side of the debate pays special attention to the needs of victims. The authors note that forgiving too early can denigrate the worth of the victim. And they describe the implications of both empowerment and equity theories, which suggest that victims (at least those who reach adulthood) are more likely to feel restored to full personhood if punishment wipes the smile off criminals' faces, however long that might take.

Shuman and Smith do such a good job laying out the opposing considerations that the reader might well be left with a feeling of ambivalence toward the prosecution of old crimes. Indeed, I got the sense that the authors were themselves ambivalent; in their effort to carry out the balancing referred to in their subtitle, they may have ended up in equipoise on many of the hard issues. For example, as noted above, they conclude that homicide and unspecified "war crimes" should be exempted from limitations periods, but then appear to endorse the amnesty process of the South African Truth and Reconciliation Commission, which has immunized murderers from prosecution. Although that endorsement is carefully limited to the "unique combination of factors" present in South Africa, including the African preference for communal dispute resolution and the need for South Africa to transform itself into a democracy (124), those factors hardly seem unique, given the number of fledgling Third World democracies struggling with the atrocities of former regimes (e.g., Guatemala and Rwanda). Similarly, they never make a concrete recommendation with respect to prosecutions of old sexual assaults, which they note may send a powerful message about a "wider problem" (125), but which they also point out are often based on flimsy evidence, especially in the repressed-memory cases. (95-96)

These last comments are not meant as criticisms. In fact, they emphasize the appropriately cautious nature of Shuman and Smith's work. Ironclad policy recommendations are probably not possible in this area. Given the complexity of their subject, Shuman and Smith understandably have chosen instead to provide copious food for thought to policymakers who have to face the hard decisions about whether to report, charge, adjudicate, pardon, or simply ignore old crimes. Although not directed to civil cases, their comments may also help deal with claims for damages in connection with old sexual assaults and like wrongs, and for reparations, such as those sought by Japanese interned during World War II and by the descendants of slaves. Despite some vagueness in prescription, and perhaps because of it, the book will promote much wiser, more contextual decisions in all of these cases.

Toward this end, a comment that is meant to be (mildly) critical is that, in their effort to be even-handed and avoid rigid positions, Shuman and Smith may have missed an opportunity to provide even more conceptual help to the policymaker. I would have preferred a more detailed typology of old-crimes cases, perhaps along the lines described in the previous section of this review. For instance, the influence of considerations such as forgiveness, denunciation, deterrence, and victim empowerment might differ significantly depending on whether the reason for delayed prosecution is a simple failure to report, memory repression, fear of reprisal, prosecutorial ineptness, new evaluation of old evidence (as with DNA analysis), or some sort of governmental or societal complicity in the failure to prosecute. Shuman and Smith allude to these and similar lines of inquiry, but never tease them out in a conspicuous way that could aid resolution of particular cases. I also would recognize, however, that there are so many considerations at work in these cases that this framework, or one like it, might add only minimally to the analysis.

One prescription that does derive from the book, albeit not one the authors suggest, is that we ought to make every effort to avoid the old-crimes conundrum in the first place. War crimes should be prosecuted as they occur, through mechanisms such as the International Criminal Court, not only to send a strong message to those who would perpetrate genocide and rape under the cover of war, but also to forestall smoldering hatreds like those that rack Northern Ireland, the Balkans, and Rwanda today. Abuse-reporting statutes, with all their flaws, are nonetheless praiseworthy because they create a powerful incentive to investigate sexual assault as it happens, and thus help obviate whatever difficulties repression and fear of reprisal create for efficient prosecution. The strongest legacy of Shuman and Smith's book is a significantly enhanced appreciation of the old-crimes problem. The next strongest legacy may well be campaigns to avoid the problem altogether.

Christopher Slobogin is Stephen C. O'Connell Professor of Law at the University of Florida Levin College of Law and the author or co-author of a number of books, including Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers, and Criminal Procedure: An Analysis of Cases and Concepts. He has appeared on panels with Professor Shuman, and wrote a chapter for one of his books.

Editors' Note: Professor Slobogin's last contribution to Books-on-Law was his review of The Right to Refuse Mental Health Treatment (American Psychological Association, 1997) by Bruce J. Winick.

Can Lawyers Be Committed to Political Liberalism?
by Lucien Karpik & Terence Halliday

Lately, we discovered Professor Richard Abel's review of our edited volume, Lawyers and the Rise of Western Political Liberalism (Oxford University Press, 1997). Our critic is critical, indeed, and that is his absolute right. Moreover, his judgment is all the more understandable since our book, by its insistence on politics and its socio-historical approach, is a deliberate attempt to escape the "market control theory" of which Professor Abel has been the main exponent, a theory that implies that lawyers are exclusively economic actors bent on extracting maximal monopolistic rents from legal markets. Lawyers and the Rise of Western Political Lberalism, by contrast, deals with the following central question: Can we link the developments and achievements of political liberalism with the involvement of lawyers? The answer is given by an international comparison of lawyers' action since the 18^th Century in Great Britain, France, Germany and the United States, each country treated by one historian and one sociologist.

Professor Abel's criticism is not global, and four out of the eight contributors to the volume receive some fine words. At least, there are as many reasons to read the book than to put it aside! His severity is concentrated on the essays by the two editors and the case studies of two contributors. We can, of course, live with Abel's criticism, but an answer is useful not only because we think that his aggressive criticism is without substance, but that it is also the expression of a hidden theoretical conflict that is useful to bring to light and that, by doing so, we advance the scholarly debate. Following Professor Abel, we will deal successively with the main criticisms leveled against some individual contributions and then against the general interpretation proposed in the Introduction and the Postscript.

First, Lucien Karpik's contribution on French lawyers. Our critic finds that the following sentence, "no economic, social or political cause seems to account for lawyers' active attachment to the liberal model of action," is a "mystification." Why? We don't know. Has Richard Abel discovered some of the causes that the author has been diligently seeking? We don't know. Why does he reject the interpretation which is finally given? We don't know that either. About the claim that "in a single movement, lawyers both constituted the public and claimed to be its representative," our critic writes that Karpik is "indulging in a typically French academic wordplay that I [Abel] find meaningless." Why is it meaningless? We don't know. But we do know that under the mantle of an easy national prejudice that is supposed to convince American readers, Professor Abel shows that he has not understood what was at stake. If the "public" is defined not as a concrete collectivity but as an abstract entity, such as people or nation, the sentence conveys exactly what has happened.

Let us ignore the other cases where Professor Abel follows the same practice of replacing arguments by pejorative words ("ideologic," "romantic nostalgia," "naivete," and so on) and deal with his central misunderstanding, which is formulated in a rhetorical question – "is it helpful to call a politics that represses and excludes workers (and women, and racial, religious and ethnic minorities) liberals?" Of course, Abel's formulation is rather extreme: in France, some lawyers were on the side of workers and later of the women, and the fact that the others did not take up the cause of workers does not mean that those lawyers repressed them. Moreover, religion was not an issue; and if some kind of racism appeared, it was rather late. With these reservations in mind, the answer to the question would be: "under certain conditions, yes, French lawyers were liberal." Abel may be indignant, but passion does not replace argument.

The reasoning is this. First, Professor Abel's or any contemporary definition of political liberalism is irrelevant; we deal only with the definitions of the actors of the time. Not to do so would be to commit the historical fallacy of appraising the past not in its own terms, but those of the present. Second, among those who have been involved actively in the struggles for political liberalism, French lawyers have defended a specific and restricted point of view. From the beginning of the 18^th Century, political liberalism has meant equality before the law, freedom of speech, personal security, property rights, due process of law, and so on – whatever was needed to define in a very central but narrow way the elements of political citizenship. While these freedoms may look limited by 20^th Century standards, at that time it was enough for lawyers advocating them to appear as radical opponents to absolutist monarchies, authoritarian regimes and dictatorships.

For instance, Professor Abel writes about the Paris bar that "for much of the 19^th Century it was little more than an organ of the state." As every social scientist of 19^th Century French knows, however, this proposition is factually wrong. It was during that period, through the creation of the Third Republic, that French lawyers publicly and strongly criticized the governments in a succession of great trials. It was in this period that there appeared the new figure of the "political lawyer" who "over-participated" in the revolutions through which the liberal and then the republican regimes were created. (See Lucien Karpik, French Lawyers: A Study in Collective Action, 1274 to 1994 (Oxford, England: Oxford University Press, 1999).) Richard Abel denies the right to call these actors "liberal;" yet, during that long period, not only did they consider themselves as liberal, and not only were large numbers of them (and the bar itself) directly or indirectly involved in political struggles on the liberal side, but they were considered as liberal by a large part of society. The Parisian bar was looked upon as the guardian of political freedoms, and it was that reputation that explained lawyers' victorious access to politics and their central political position during a large part of the Third Republic.

With time, of course – in France as in other western countries – liberalism has taken new meanings, encompassing economic, social and new civic rights. It is exactly for this reason that the Dreyfus affair was so important. It demonstrated publicly the beginning of the move through which lawyers would separate themselves slowly from the liberal public. They did not change, nor did their liberalism; others did, and they advanced a new definition of liberal claims. And thus, the intellectuals replaced lawyers. For Abel, the description and explanation of that process is "ideological" because "the evidence fails to support ideology." One doesn't see how evidence could support ideology, but one is still waiting for the arguments that will demonstrate that the evidence fails to support the proposed sociological interpretation.

Comparing Michael Burrage's study and Wesley Pue's study on Great Britain, Professor Abel indulges once again in extremism: ideology vs. science. Accordingly, Burrage's contribution, with which he disagrees, is based on ideology and Pue's, with which he agrees, is based on research. In fact, as editors, we were delighted to have such different points of view, since the goal of the book was to open the debate and to clarify opposing arguments. But, instead of using these cases to make clear the differences in reasoning, Abel takes sides within the debate by using his favorite tool: discrediting his adversaries by labeling one side as "ideological." Not only does such a practice replace any rational discussion, but its use is really simple: what displeases Richard Abel is ideological, and what pleases him is science. Of course, such a practice is not new, and we know what may happen when those in power use similar sleights of hand.

Professor Abel's habit of pushing any qualified argument to an unqualified extreme reveals itself again in his critique of the American studies. Here, he misses the point entirely, and garbles the argument. In their essay, "Making the Courts Safe for the Powerful: The Politics of Lawyers, Judges, and Bankers in the 1978 Rehabilitation of United States Bankruptcy Courts," Terence C. Halliday and Bruce G. Carruthers approached the question of judicial autonomy – a central element of political liberalism – from a different vantage-point. While they recognized that the American legal profession historically has pushed strongly for merit selection of judges, and various institutional reforms that would attenuate the relationship between courts and politics, they pointed to a new impetus towards independence of courts – this time from an alliance of some lawyers' and judges' organizations with large banking interests. In the federal bankruptcy reforms of 1978, this alliance successfully achieved a more sophisticated, independent, and efficient bankruptcy court system, and it ititdid so in the name of commerce. By taking an extreme position again – "these did not invariably advance liberal ideals" (of course not, who would ever make such a gross generalization?) – Abel misses completely the more intriguing question posed by the authors, and now being rehearsed in nation after nation around the world: does the creation of meritocratic, independent commercial courts potentially spill over into constitutional and civil courts and lead to greater judicial autonomy? Do independent commercial, civil, and criminal courts mutually support each other? The answer is not yet clear, but the question is highly salient wherever political liberalism is being constituted or reconstituted in the 21^st Century.

Professor Abel's critique of Michael Grossberg's argument on legal aid in the United States is cavalier and even pernicious. Professor Grossberg seeks to show carefully the tension between a kind of liberalism reflected in legal aid and the limits of that liberalism. However much Abel might bemoan the limits of that liberalism, to juxtapose the efforts of legal aid lawyers in the U.S., who sought to render legal aid "to those who appear worthy," with the Nazi "peace through law" movement is unfortunate, to put it mildly. His criticism is all the more ironic, since he attacks U.S. legal aid because it was created by a marginal group of lawyers and remained rather marginal, whereas he attacks the English legal profession in others of his writings for successfully building a powerful legal aid scheme, because he views this as a naked professional strategy of obtaining state moneys for professional pockets. Poor lawyers! As legal aid is either too little or too much, they are necessarily condemned to "illiberalism" on any count.

Through these and other examples, Abel's severe criticism of the general interpretation proposed by the editors – Halliday's and Karpik's Introduction and Postscript – can be plainly understood. First, says Abel, the editors have taken (of course) an "ideological position," although our critic adds deliciously: "this is hard to pin down." For example, he judges to be "ideological" the statement, "lawyers have been among the builders of the liberal state and society." Now, the proposition may be true or false, but why should it be ideological? Is the proposition – new to studies of legal professions – only to be taken seriously if there were no qualifier and we had asserted, incorrectly, that lawyers were the only builders of the liberal state, or equally incorrectly, were not at all builders of the liberal state? Should we formulate broad propositions, which take into account widely disparate times and places, without any qualification?

Second, Abel asks: "what is judicial autonomy?" According to the context of these studies, the answer in a large number of countries is straightforward: in "meaningful" political trials, to have autonomy meant to have judges ready to oppose the government in the defense of political freedoms and to have lawyers ready to go to extreme limits of legality (sometimes outside these limits) in order to deliver pleadings to defend their clients against the state's arbitrariness.

Third, he asks what "independence" meant for lawyers. For Abel, it can only be deregulation. That's a provocative joke. The comparison shows that the term in the different countries took two different meanings: the political fight against the state, the church, and other powers was based on the collective autonomy of the bar and/or the individual independence of lawyers acting even against a bar that was allied with other powers. In both cases, what was central was the value given to the capacity of having large margins of maneuver in making decisions and to use them for political action against external powers. To ignore so lightly the struggles that took place in Europe, and autonomy as a critical requirement for lawyers' involvement, is really to be blind to reality.

Fourth, our proposition that "the bid for autonomy may not exist or it may disappear" is for whatever reason considered by Abel as something that we had to "concede," because it would destroy our ideological position! In fact, it is an empirical observation that verifies the point that the autonomy of lawyers is neither inevitable nor eradicable, as several of the case

studies demonstrated. Fifth, we have never thought, much less written, that lawyers could be considered a "universal class." Abel is shadow-boxing.

By reading Professor Abel's presentation of these texts, the reader will have some difficulty in understanding what they are about. Let us emphasize two points. First, the international comparison shows that, in our terms, for a long period in these four countries, lawyers have mobilized on behalf of a political liberalism that variously includes (a) a concept of the moderate state, including judicial independence, (b) a set of civil rights, such as those of freedom of speech, freedom of movement, and the right to own property, and (c) a notion of civil society, with voluntary associations or publics who are constituted outside the state, including, most notably, lawyers' own associations. This global view expresses what is common to the lawyers' different strategies that we have identified. These strategies differed between themselves on two dimensions: on the one hand, the alternative between lawyers functioning as representative counsel or as interest groups; and on the other hand, the primacy given to the substance of rights vs. proceduralism. Although one should be careful not to identify each national legal profession over a long period in terms of only one specific configuration of action, it is nevertheless relevant to show two extremes – 18^th and 19^th Century French lawyers, with their emphasis on citizenship and their neglect of institutional construction; and German lawyers (during the second half of the 19^th Century and the beginning of the 20^th Century), with their emphasis on the Rechtsstaat, and their limited interest in citizen rights. The two other legal professions were variants, with the U.S. being more oriented toward proceduralism and interest groups than Great Britain.

Secondly, through these different practices (and, in fact, because of these different practices), we find persuasive evidence that lawyers, in part or in whole, have mobilized themselves, their allies, and their publics on behalf of a particular vision of political liberalism. They do not do so inexorably, invariably, or expansively. Not infrequently they have retreated ostensibly from liberal causes, even by their narrow definition of liberalism. But if lawyers are limited liberals, nevertheless we find convincing evidence in several countries over three centuries that the modern shape of political liberalism owes much to the agency of lawyers, in one form or another.

In his conclusion, Professor Abel writes that "most lawyers, most of the time, claim to be apolitical in their professional role and are collectively apathetic." As a result of reading our book in a fair-minded way, we would have expected that such a formulation would no longer be tenable, or at least that the formulation would have been construed more cautiously. As a general proposition, it is false. What Abel might have written more accurately, at least if he wanted to formulate a proposition that will be valid for the past and the present, and across nations, is that "depending on the countries and the period, lawyers will claim to be apolitical or political in their professional roles and are sometimes collectively apathetic and at other times are collectively mobilized." That, of course, would be only the beginning of the theoretical work. It is the process of qualification and the elaboration of contingencies and socio-historical conditions that is crucial. And that is where our book seeks to advance a fresh theory of lawyers' action.

Why is it that Professor Abel is so adamantly opposed to our empirically-based interpretation about the engagement of lawyers in the rise of political liberalism? The answer lies in the conflict between two theoretical approaches. Abel considers that "market control theory" is the only relevant and fruitful theory to explain lawyers' behavior. It means that always and everywhere lawyers' practices and institutions should be explained exclusively by the pursuit of material interests. But with Lawyers and the Rise of Western Political Liberalism, Abel is confronted with a theory that takes politics seriously, as did the actors when they committed themselves toward political goals. The conflict looks unavoidable. We should add that we do not deny the possibility that the market may be central for the profession in particular times and places, but that is only one possibility. We explicitly formulated a theoretical perspective that demands that the scholar must determine the conditions under which the market or politics will become the dominant principle of action of the profession. We believe that such a socio-historical perspective is more general and more fruitful than to simply postulate, despite evidence to the contrary, that material interest is the key that opens every door. On the legal professions, other scholars will explain why and how, in these and other countries, politics have prevailed over a market orientation, or vice-versa. It is rather clear that Professor Abel, whatever arguments or evidence may be to the contrary, will remain wedded to his unitary and universal model. But as this book and others demonstrate, to universalize the particular is not an ideological position: it is bad theory.

Lucien Karpik is Professor Sociology at the Ecoles des Mines, Paris, and writes widely on the legal profession, organizations, and economic sociology. He is the author of French Lawyers: A Study in Collective Action, 1274 to 1994 (Oxford, England: Oxford University Press,1999).

Terence Halliday is Senior Research Fellow, American Bar Foundation, and Adjunct Professor of Sociology, Northwestern University. He has written extensively on the comparative and historical sociology of legal and other professions,including Rescuing Business: The Making of Corporate Bankruptcy Law in England and the United States (Oxford University Press, 1998).

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© Ronald K.L. Collins and David Skover, 2001.