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Contents | Reviews | Talkback || Archive || Books-on-Law Home
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Contents
Special: Retrospective on David Simon's Homicide

Symposium on Jurisprudence

  • Balkin, J.M.  Cultural Software: A Theory of Ideology.   Reviewed by Margaret Chon.
  • Janoski, Thomas.  Citizenship and Civil Society: A Framework of Rights and Obligations in Liberal, Traditional, and Social Democratic Regimes.   Reviewed by Frank H. Wu.
  • Markovits, Richard S.  Matters of Principle: Legitimate Legal Argument and Constitutional InterpretationReviewed by Dennis Patterson.
  • Morton, Peter. An Institutional Theory of Law: Keeping Law in Its Place.   Reviewed by Dennis Patterson.
  • Sandel, Michael J. Liberalism and the Limits of Justice.   Reviewed by Lawrence E. Mitchell.
  • Stolleis, Michael. The Law under the Swastika: Studies on Legal History in Nazi GermanyReviewed by Richard Weisberg.
  • Talkback
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Special: Retrospective on David Simon's Homicide

Killing Miranda in Baltimore: Reflections on David Simon's Homicide
by Yale Kamisar

Homicide: A Year on the Killing Streets
David Simon
Boston, MA: Houghton Mifflin Co., 1991
Paper: $5.99
Pp. 599

In late 1987, David Simon, a Baltimore Sun reporter who had spent four years on the police beat, had grown unhappy with the typical coverage of local homicide cases.  He thought it too brief, too dry and too sanitized.  So he persuaded the Baltimore Police Department to grant him unlimited access to the city's homicide unit for a full year.   In 1988, he took a leave of absence from the Sun and followed one shift of detectives as they traveled from interrogations to autopsies and from crime scenes to hospital emergency rooms.  Mr. Simon's 1991 book, Homicide: A Year on the Killing Streets, was the result.  (The popular television series, loosely based on the book, followed.)

In an author's note, Simon tells us that Homicide is a "work of journalism" and that the events he has written about "occurred in the manner described."  Mr. Simon is too modest.  His book is a remarkable work of journalism -- one that is hard to put down.  As noted by Kevin Kerrane, one of a goodly number of people (including this reviewer) who have reprinted portions of Simon's book, "the reader travels through a homicide detective's daily routine accompanied by a narrator who is, in effect, the communal voice of the [homicide] unit rather than an overly detached reporter."  (Kevin Kerrane & Ben Yagoda, editors, The Art of Fact: A Historical Anthology of Literary Journalism (Scribner, 1997), p. 522.)

As his discussion of how Baltimore's homicide detectives cope with Miranda v. Arizona (1966) well illustrates, Simon is an insightful commentator and a talented writer.  He writes easily and crisply.  And his writing is blood-warm. Moreover, the story he tells has the ring of truth to it.  (This is why I find it so disturbing.)

Miranda's Fate in Baltimore

As every TV viewer and mystery book reader is well aware, Miranda requires that, before subjecting a custodial suspect to interrogation, the police must first advise him of his rights (such as the right to remain silent and the right to an attorney before and during questioning) and then obtain a valid waiver of these rights.  How, despite this seemingly formidable obstacle, do the Baltimore police manage to get so many suspects to incriminate themselves?

According to Simon, the following, or something close to it, commonly occurs:

(1) The detective produces an "Explanation of Rights" sheet, reads the warnings one at a time and when the suspect responds that he understands them, gets the suspect to initial each warning.

(2) Next, the detective gets the suspect to sign his name just below a sentence that reads: "I have read the explanation of my rights and fully understand it."

(3) At this point -- and before the suspect is asked whether he wants to waive his rights and talk about the case -- the detective assures the suspect that he will honor his rights if he invokes them, but in the next breath warns him that asserting his rights would make matters worse for him.  For it would prevent his friend, the detective, from writing up the case as manslaughter or perhaps even self-defense, rather than first degree murder.  The detective emphasizes that he is affording the suspect the opportunity to tell his side of the story (Did the man you stabbed come at you? Was it self-defense?), "but once you up and call for that lawyer, son, we can't do a damn thing for you . . . . [T]he next authority figure to scan your case will be a tie-wearing, three-piece bloodsucker -- a no-nonsense prosecutor from the Violent Crimes Unit [and] God help you then, son . . . . Now's the time to speak up . . . because once I walk out of this room any chance you have of telling your side of the story is gone."

(4) In a typical case, the detective also tells the suspect (falsely) that the evidence against him is overwhelming, and the only reason he is interested in hearing the suspect's version of what happened is "to make sure that there ain't nothing you can say for yourself before I write it all up" (as murder in the first degree).

(5) The suspect cautiously indicates a willingness to talk about the case or at least to consider talking about it.  The suspect also indicates that he likes the suggestion that the slain man had "come at him."  The detective smiles inwardly.  He has given the suspect "the Out" and the suspect has taken it.

(6) The suspect is now eager to tell his story, but the detective cuts him off.   Before proceeding any further, there is some "paperwork" to be completed -- to do this the right way the suspect must first sign a form stating that he is willing to answer police questions without having a lawyer present and that his decision to do so has been "free and voluntary" on his part.

(7) The suspect signs the form and the detective then encourages him to resume telling his story.  At the same time, the detective tells himself: "End of the road, pal.  It's over.  It's history."

It is not at all clear to me whether Mr. Simon (and the Baltimore detectives whose tactics he reports and whose attitudes he reflects) believes that Miranda is such a soft, porous, and schizophrenic decision that any resourceful interrogator can get around it without too much trouble, or whether he realizes the Baltimore detectives are plainly violating Miranda and are doing so in a most fundamental way.  There is reason to believe that Simon (and most members of the Baltimore homicide unit) think that the first alternative best describes and explains what the detectives are doing.  At one point in his narrative, for example, Mr. Simon observes that, forced to deal with Miranda (a decision that both he and the Baltimore police heavily criticize),

a detective does his job in the only possible way. He follows the requirements of the law to the letter -- or close enough so as not to jeopardize his case. Just as carefully, he ignores that law's spirit and intent. He becomes a salesman, a huckster as thieving and silver-tongued as any man who ever moved used cars or aluminum siding -- more so, in fact, when you consider that he's selling long prison terms to customers who have no genuine need for the product.

To be sure, if the admissibility of a statement obtained as a result of the methods described above were challenged by a defense lawyer, a Baltimore prosecutor would be in a strong position.  For she would be armed with a signed waiver of rights form (and a signed explanation of rights form as well).  But she would be in a strong position only if -- as would hardly be surprising -- the detective(s) involved in the case lied about, or conveniently failed to remember, how the suspect was induced to sign the waiver of rights form.  If all the facts were known -- if, for example, the entire transaction had been tape recorded -- no court could or would admit the statement unless it was prepared to overrule Miranda itself.

When Police Violate the Law

Despite Mr. Simon's comments to the contrary, the Baltimore police do not follow the requirements of Miranda closely enough to avoid jeopardizing their cases, nor do they merely ignore Miranda's spirit.  Indeed, it would be more accurate to say they flout the substance of that famous case.

One of the principal purposes of the warnings is, to quote from the Miranda opinion, "to make the individual more acutely aware that he is faced with a phase of the adversary system -- that he is not in the presence of persons acting solely in his interest."  But the Baltimore detectives seriously undermine this purpose by leading the suspect to believe that it is in his best interest to waive his rights and to talk to "your friends in the city homicide unit" about the case, and by pretending to be not only the suspect's friend but his protector (or at least a buffer) against the detectives' heartless superiors and the zealous prosecutor waiting outside the door, a prosecutor who has no compunctions about charging the suspect with first degree murder without bothering to hear his "side of the story."

Early in its Miranda opinion, the Warren Court vents its judicial ire at the interrogation manuals which instruct the police to "persuade, trick, or cajole" suspects out of exercising their constitutional rights.  Twenty pages later, the Court returns to this point: "[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.  The requirement of warnings and waiver of rights is a fundamental . . . and not simply a preliminary ritual to existing methods of interrogation."

Deception, Seduction & Trickery

Unfortunately, the very police conduct that Miranda tried to forbid seems to be occurring in Baltimore police stations.  The police are threatening the suspect: they are telling him that unless he talks to them about the homicide, they will write it up as first degree murder and turn him over to a "bloodsucking" assistant state's attorney.  They are tricking the suspect: they are leading him to believe that it is in his best interest to tell them his side of the story; indeed, they are pretending that this is the suspect's only chance to get the homicide charge reduced (or perhaps even dismissed).

To quote Mr. Simon, in a typical interrogation session a detective warns the suspect: "[O]nce I walk out of this room, any chance you have of telling your side of the story is gone and I gotta write it up the way it looks [and] it looks right now [like] first-degree murder."  And all along the way, the detectives are cajoling suspects into waiving their rights.

To quote the Miranda opinion again, transforming its requirement of warnings and waiver of rights into "simply a preliminary ritual to existing methods of interrogation" is also a pretty good description of what is taking place in Baltimore police stations.  Indeed, to put it somewhat differently, although the police are not supposed to subject a suspect to interrogation unless and until they obtain a waiver of his rights, what they are really doing in Baltimore (and who knows how many other places) is subjecting individuals to "interrogation" before they waive their rights.

At one point, Mr. Simon notes that "[t]he fraud that claims it is somehow in a suspect's interest to talk with police will forever be the catalyst in any criminal interrogation."  Exactly right.  This is why the methods used by the Baltimore police to get a suspect to waive his rights -- methods that simultaneously manipulate him into talking about the case and, eventually, incriminating himself -- should be classified as "interrogation."  Whatever deception, seduction and trickery a police interrogator may be able to utilize after the suspect effectively waives his rights and agrees to talk (and, more than 30 years after Miranda, what the interrogator may do at this stage is still far from clear), the police cannot resort to any of these techniques before the suspect waives his rights, and they cannot use any of these techniques to get him to waive his rights.

Once the police have taken a suspect into custody, there is no such thing (at least there is no lawful basis for any such thing) as a "pre-interview" or "pre-waiver" interrogation.  The waiver of rights transaction is supposed to take place as soon as the curtain goes up, not postponed until the second or third act.

Tape-Recording Police Interrogations

Mr. Simon's graphic description of how the Baltimore Homicide Unit (and who knows how many other police departments?) goes about getting custodial suspects to make incriminating statements underscores the need to record on video or audio tape the entire proceedings in the police station -- the reading of rights, the waiver transactions and any subsequent interrogation. 

Perhaps because it feared that requiring electronic recording of police questioning, whenever feasible, would have added fuel to the criticism that it was "legislating," the Miranda Court permitted the police to obtain waivers of a person's constitutional rights without the presence of any disinterested observer and without any objective recording of the proceedings.  Since Miranda, the great majority of state courts has held that the testimony of an officer that she complied with Miranda is sufficient and need not be corroborated.  Nevertheless, there is nothing new or startling about tape-recording police questioning.  Virtually all of the nation's leading criminal procedure commentators -- critics and defenders of Miranda alike -- favor the idea.  Why, then, is tape-recording not commonplace in American police stations today?

More than forty years ago, C.E. O'Hara, the author of a well-known police investigative manual, stated flatly: "Important interrogations [and presumably important "interviews" as well] and confessions should be recorded." (Fundamentals of Criminal Investigation (1956) p. 1)  More than twenty years ago, in order to aid the resolution of (and hopefully to avoid altogether) disputes about what the police said or did not say to the suspect, both the American Law Institute and the National Conference of Commissioners on Uniform State Laws proposed legislation requiring, whenever feasible, the sound-recording of police questioning.  Ten years ago, a British Code of Practice took effect that generally requires the police to tape record interviews with suspects.   And according to a recent study by the Royal Commission on Criminal Justice, most British police officers now approve of the mandatory recording requirement.

The only startling thing about this issue is that, after all these years, American law enforcement officials are still able to prevent objective recordation of all the facts of police "interviews" or "conversations" with a suspect and, of course, how the warnings are delivered and how the waiver of rights is obtained.  But if you were a member of the Baltimore homicide unit, would you favor tape-recording (and making available for public inspection) what really happens in the interrogation room?

Officers Are Human, Too

It is not because a police officer is more dishonest than the rest of us that we should demand an objective recording of the critical events in the station house.  Rather, it is because we are entitled to assume that an officer is no less human -- no less inclined to reconstruct and interpret past events in a light most favorable to himself -- that we should not allow him or her to be a judge of his or her own cause.

Unless tape-recording of police interrogations is required, it will be of no great moment whether Miranda is expanded or cut down or reshaped.  For absent such a requirement, sweet-talking police interrogators will be able to assail, maim, and all but kill Miranda (or, for that matter, any other confession rule).

Yale Kamisar is the Clarence Darrow Distinguished University Professor at the University of Michigan Law School.  He is the author of Police Interrogation & Confessions (University of Michigan Press, 1980), among other works.  Professor Kamisar is also on the Board of Editorial Consultants to Books-on-Law.

Editors' Note: For a new book of related interest, see Richard A. Leo & George C. Thomas, III, The Miranda Debate: Law, Justice, and Policing (Northeastern University Press, 1998).

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Exploring "Institutional Schizophrenia" in Baltimore:
Reflections on David Simon's Homicide

by Charles D. Weisselberg

A court opinion that . . . requires a detective -- the same detective working hard to dupe a suspect -- to stop abruptly and guarantee the man his right to end the process can only be called an act of institutional schizophrenia.  The Miranda warning is a little like a referee introducing a barroom brawl: The stern warnings to hit above the waist and take no cheap shots have nothing to do with the mayhem that follows.

Yet how could it be otherwise?

          -- David Simon, Homicide

David Simon spent a full year with the Baltimore Police Department's homicide unit.  In Homicide: A Year on the Killing Streets, his report of that year, Simon presents the detectives' view of Miranda v. Arizona (1966).  The book starkly reveals the disconnect between the holding and normative vision in Miranda and the way custodial interrogations are conducted in Baltimore.  Baltimore homicide detectives give Miranda warnings in a manner that undercuts their meaning.  And the detectives impermissibly soften up suspects before seeking Miranda's required waivers.  Perhaps agreeing with these tactics, Simon asks, "how could it be otherwise?"  Discussing Simon's rhetorical question, I conclude that it must be otherwise.

Unlike books about a single crime or investigation that usually portray a few officers working a case, Homicide affords us a close look at the lives and work of a shift of detectives, fully half of the homicide unit's entire complement of officers.   We hear the voices of eighteen men (and all of the detectives are men) who work the streets.  Weaving together their stories, Simon's account is at once engrossing, valuable, and disquieting.  It is engrossing because the detectives have fascinating cases and different investigation styles.  It is valuable because, by writing about a full shift of detectives and not a small sample of officers, Simon shows us how murders are investigated by an entire police department.  It is disquieting because homicide detectives in Baltimore sometimes skirt the law.  This is especially apparent in the book's description of police interrogations.

Homicide is absolutely first-rate; it is a great read, as well as an insightful study of police behavior.  Given my serious concerns with the Baltimore detectives' interrogation tactics, however, it is clear to me that Miranda is in difficulty in Baltimore.

Miranda & the Theory of Station House Interrogations

Baltimore homicide detectives have a theory about station house interrogations.   First, in every aspect of the interrogations, the detectives underscore their complete control of the suspects and the physical environment.  Second, they let the suspects know that their guilt is already established by other evidence, and they entice the suspects to speak by offering "the Out."  According to Simon, detectives "like to imagine their suspects imagining a small, open window at the top of the long wall" of the interrogation room.  The window is the escape hatch, "the Out."  The detectives artfully deceive the suspects into believing that, by answering questions a particular way, they can make it to that escape hatch.   Because few people confess to murder out of pure remorse, suspects "must be baited by detectives with something more tempting than penitence.  They must be made to believe that their crime is not really murder, that their excuse is both accepted and unique, that they will, with the help of the detective, be judged less evil than they really are."  At the conclusion of this choreographed performance, there may or may not be an incriminating statement, but there is no "Out."

The detectives' theory is consistent with the teachings of the nation's leading interrogation experts.  The most influential training manual on interrogations is Fred Inbau, John Reid & Joseph Buckley, Criminal Interrogation and Confessions (3rd edition, 1986).  According to the authors, interrogators should confront suspects and then develop a theme to induce them to talk.  Some themes include: sympathizing with the suspects by suggesting that anyone else might have done the same thing; minimizing the moral seriousness of their offenses; condemning others (such as accomplices); pointing out the futility of resisting further; and explaining that the truth can only be determined after hearing the suspects' own words.  The Inbau, Reid & Buckley manual goes on in more detail to present nine steps to a successful interrogation, but its psychological approach is consistent with the theory held by Baltimore detectives -- to reduce a suspect's resistance by emphasizing control and inevitability, and to increase the desire to talk by offering "the Out."

There is a fly in the ointment, however.  Simon claims that, in conducting their interrogations, Baltimore detectives follow "the requirements of the law to the letter."  Not so.  As Yale Kamisar explains above in his reflections on Homicide, Baltimore detectives flout Miranda by manipulating suspects into waiving their right to counsel or right to remain silent.  Simon's detectives often begin the interrogations by representing falsely that it is in a suspect's best interest to speak before seeking Miranda waivers.  As Professor Kamisar makes crystal clear, it is impermissible to initiate interrogations until after waivers have been obtained.   Moreover, Miranda flatly prohibits trickery in securing waivers.   Baltimore detectives perhaps may employ sophisticated tactics against people who have already waived the Fifth Amendment and decided to speak.  But they cannot soften up suspects before obtaining Miranda waivers.

Meaningless Symbol or Meaningful Requirement?

According to Simon, Miranda has become "a symbol and little more, a salve for a collective conscience that cannot reconcile libertarian ideals with what necessarily must occur in a police interrogation room." Miranda may be only a symbol in Baltimore.  But that is not what the Supreme Court intended; nor is it a necessary consequence of the decision.

In Miranda, the Court prescribed bright-line rules for the police and trial courts.  Before conducting custodial interrogations, officers must advise suspects of their right to counsel and right to remain silent, and obtain waivers of those rights.   If suspects indicate that they want counsel or want to remain silent, interrogations must cease.  These procedures, the justices held, are the minimum necessary to dispel the coercion that is inherent in custodial questioning.

The Court set out these rules largely because other attempts at curbing police abuse proved unworkable.  Long before Miranda, in Brown v. Mississippi (1936), the Supreme Court held that the Fourteenth Amendment prohibits the police from forcing statements from the accused.  But the justices found it difficult to define voluntariness with any real precision.  Cases came to the Court upon infinite variations of fact, and the Supreme Court's case-by-case approach was unsatisfactory.  In Escobedo v. Illinois (1964), the Court found a Sixth Amendment violation where the accused was denied the ability to consult with his retained attorney.  Escobedo, however, raised other nettlesome questions, such as whether indigent suspects are entitled to appointed counsel in the police station.

Though Miranda is couched as protecting the Fifth Amendment privilege against self-incrimination, officers who comply with Miranda will generally avoid transgressing the Fourteenth Amendment.  In addition to creating a "time out" so that suspects can decide whether to talk to the police, Miranda provides a way for them to end the questioning.  All that suspects have to do is to state clearly that they want to see a lawyer or remain silent.  Defendants who fail to take advantage of Miranda's protections will find it difficult to argue that their statements were involuntary, absent some other form of egregious police misconduct.

In harsh language, Simon calls Miranda a hypocritical compromise reached by lawyers "who still manage to keep their cuffs clean."  He is surely correct in terming Miranda a compromise.  The Court could have, as Simon points out, required the presence of lawyers in the police station, who would have curtailed virtually all confessions.  Yet Miranda's "compromise" fits with other aspects of our criminal justice system.  An accused who goes to court may waive a whole passel of rights, including the right to counsel, the right to a jury, the right not to testify, and even the right to go to trial.  While many might want suspects to have more information before deciding whether to waive the Fifth Amendment and submit to questioning, Miranda is consistent with a system that affords defendants autonomy to decide what rights to assert and when to assert them.  Miranda creates a minimum condition for the exercise of autonomy in the police station.

In characterizing Miranda as hypocrisy, Simon implies that the Court believed that the requirements of warnings and waiver would become meaningless rituals, put on for show to ease our consciences about interrogations that must inevitably occur.  But it is impossible to read Miranda and to come to this conclusion.  The majority opinion is a powerful expression of what we should expect from the police.  Moreover, the justices thought it entirely possible that, after Miranda, officers would lose the ability to obtain confessions.  The majority was prepared to accept this outcome; it firmly rejected the argument "that society's need for interrogation outweighs the privilege."  In dissent, Justice White called Miranda's rule "a deliberate calculus to prevent interrogations."  In a famous passage, he also claimed that "[i]n some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets . . . to repeat his crime whenever it pleases him."  White was overly dramatic and incorrect, but he was not insincere.

Miranda & Police Integrity

Finally, Simon contends that Miranda's compromise was reached "at little cost other than to the integrity of the police investigator."  He is wrong in asserting that Miranda necessarily undermines the integrity of the police.

Perhaps Simon means that Miranda complicates detectives' work. Miranda does place additional duties on police.  Investigators may question suspects in custody, but only after following Miranda's procedures.  There is nothing wrong with that.  The job of a homicide detective is not to investigate crimes by any means necessary; rather, it is to investigate crimes while acting within the bounds of the law.  Just as the Fourth Amendment forces detectives to get warrants before searching people's homes, Miranda prescribes procedures that must be followed before conducting interrogations.  If suspects assert their Fifth Amendment rights, detectives must rely upon other methods of investigation, just as rejected search warrant applications force detectives to look elsewhere for evidence.

If Simon means, however, that giving detectives the dual functions of administering Miranda and solving crimes compromises their integrity because officers must necessarily violate Miranda, then he raises a serious concern. Miranda is premised on the assumption that officers will faithfully carry out its commands.  Individual officers may, of course, occasionally yield to the temptation to circumvent Miranda.  Yale Kamisar writes, in his essay above, that police officers are only human, and that Homicide "underscores the need to record on video or audio tape the entire proceedings in the police station."  Kamisar is right, and taping would help lead officers to comply with Miranda.  In addition, in California and perhaps several other jurisdictions, some officers have been trained that it is permissible to question suspects over the assertion of their Fifth Amendment rights.  [See Charles Weisselberg, "Saving Miranda," 84 Cornell Law Review 109, 132-140 (1998).]  This training can and should be stopped.

Yet, despite these difficulties, we ought not to accept the cynical argument that police officers are inherently incapable of following Miranda.  Perhaps the best rebuttal to Simon is a Supreme Court brief filed in 1992.  Four police organizations and 51 former prosecutors asked the Court not to take Miranda claims out of federal habeas corpus, arguing that Miranda has led "to an increased professionalism within police and sheriff's departments throughout the country" and that "Miranda's bright-line rules have proved relatively easy to follow."   [Brief Amici Curiae of The Police Foundation et al. in Support of Respondent at 7, Withrow v. Williams, No. 91-1030 (Oct. Term, 1991)].  Surely this brief demonstrates that police officers can adhere to Miranda's rule.

In the quote at the start of this review, Simon calls Miranda "an act of institutional schizophrenia."  It is nothing of the sort. Miranda imposes certain obligations upon officers, but they are not fundamentally different from other restrictions on the power of the police.  Pointing to the difference between the Supreme Court's vision of Miranda and the way it is implemented by Baltimore homicide detectives, Simon asks "how could it be otherwise?"  If we are to have a rule of law in this country, it can and must be otherwise.

Charles Weisselberg is Professor of Law and Director of the Center for Clinical Education at the University of California at Berkeley School of Law (Boalt Hall).  His most recent publication is "Saving Miranda," 84 Cornell Law Review 109 (1998).  Professor Weisselberg and his students have participated in a number of cases involving deliberate violations of Miranda, including California Attorneys for Criminal Justice v. Butts, 922 F. Supp. 327 (C.D. Cal. 1996) (appeal pending) and People v. Peevy, 953 P.2d 1212 (Cal. 1998).
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Symposium on Jurisprudence

Reviews

Common Sense
by Lawrence E. Mitchell

Liberalism and the Limits of Justice
Michael J. Sandel
Cambridge: Cambridge University Press, 2nd Edition, 1998
Paper: $16.95
Pp. xvii, 231

It is, to say the least, rather humbling to be asked to review the second edition of Michael Sandel's now-classic work, Liberalism and the Limits of Justice.   The original, published in 1982, mounted a full frontal assault on John Rawls's monumental work, A Theory of Justice (1971), and was a major factor in launching the communitarian response to enlightenment-style liberalism (a fact that Sandel now notes with some chagrin).  My task is humbling not only because of the stunning insights which Sandel so deftly presented; humbling not only because the book has been reviewed by scores of philosophers, some themselves of daunting stature; but humbling, as well, because Sandel's book was perhaps the most significant early influence on my own work in corporate legal scholarship (as well as my later forays into jurisprudence and philosophy).   Nonetheless, I shall -- like any good law professor -- suspend humility, and get on with my assignment.

The Last Word?

The principal reason for the publication of the second edition of Liberalism (other than to make it more available to new generations of readers) seems to be to have permitted Sandel to respond to Rawls's modifications of his own arguments in the latter's 1993 book, Political Liberalism (which I reviewed in the 1993 Columbia Law Review.) 

Political Liberalism was itself a response by Rawls to his critics, and principally (although implicitly) Sandel.  In that book, Rawls clarified his theory of justice as one that was political in nature, and not a more wide-ranging theory of morality.  In so doing, he dealt, among other things, with criticisms raised by Sandel (and others) as to the nature of the persons for whom his theory was constructed (or whom his theory presumed to exist), persons described as Kantian in their detachment from their own ends and their prioritization of the right over the good.  Although Sandel's response to that work is interesting, this reader believes that Political Liberalism was itself a sufficient victory for Sandel; that while Rawls's arguments may still exhibit significant difficulties, the 1993 book conceded heavily to Sandel's critique.

Common Sense Communitarianism

In the second edition, Sandel targets Rawls's attempt to confine his theory of justice to a political theory, and argues that agreement on broad and practically necessary political principles neither substitutes for nor concludes debate about deeply held moral and religious values, and that political values rise to the same level.  In the Preface, Sandel disavows the strong communitarianism with which he has been associated, and attempts to lay out a more nuanced explanation of communitarianism and liberalism.   He joins the two by describing a form of communitarianism that accepts liberal concepts of right, but rights that are important because of the moral quality of their ends.

Implicit in this is a liberal approach to rights that parallels Sandel's depiction of the liberal person as detached and given, prior to his/her ends.  Rights, to Sandel, are not abstractions, as he illustrates in briefly discussing the importance of the rights to religious liberty and free speech.  He contrasts Martin Luther King Jr.'s right to march for civil rights as against the 1970s desire by neo-Nazis and klansmen to march in Skokie, Illinois (home to a large number of Holocaust survivors).  Sandel distinguishes the two asserted rights to march and to speak on moral grounds, saying: "Moral discriminations such as these are consistent with common sense but at odds with the version of liberalism that asserts the priority of the right over the good and the version of communitarianism that rests the case for rights on communal values alone."  Sandel's answer to Rawls rings through with a great deal of common sense.

Politics Matters

In the new final chapter to the book, "A Response to Rawls' Political Liberalism," Sandel describes Rawls's basic defensive move as detaching his theory of justice from the broader moral context in which most readers saw it and removing it purely to the political realm.  By itself, Sandel notes, this does not eliminate an implicit concept of the person, for such a conception is necessary to the construction of the original position in which we are asked by Rawls to deliberate about the principals of justice without regard to our ends.  But once Rawls has disavowed the Kantian conception of the person, we must separately address the question of why we should consider questions of justice without regard to our ends.  Why, instead, should we not focus our conception of justice on the ends it is to serve?

The answer Rawls gives is, in effect, to ask us to bifurcate ourselves into political persons and persons with other moral and religious attachments.  As such, we have public or civic personae in which we "bracket" our other attachments -- in effect, rule them out of order for purposes of debate -- and our private selves, who are free to follow our own other interests.  As Sandel suggests, Rawls effectively treats our political personae as necessity; we must carve out a sphere of political detachment and compromise in order to enable our pluralistic polity to survive.  Then again, our other attachments are nothing more than mere preferences, and as such severable (and necessarily so) from our political selves.

The key to Sandel's critique comes when he asks why we ought to adopt Rawls's political conception of the person to begin with?  After all, isn't that very choice a value judgment which is not self-evident?  It is from this point on that Sandel sees Rawls's argument as unraveling, and I think justifiably so.  While Rawls disavows a pragmatist affiliation, he argues instead that the principles of justice are endorsed from within the value structures of a person's private point of view -- the moral, religious, or affiliative backgrounds to which s/he is attached but which is bracketed off from his/her public persona.  While Sandel concedes that this move succeeds in "rescuing the priority of the right from controversies about the nature of the self," it does so "only at the cost of rendering it vulnerable on other grounds."

Sandel notes three objections to this political conception of justice: (1) bracketing moral and religious questions from political ones is not always reasonable; (2) there is no "'fact of reasonable pluralism' about morality and religion" that doesn't also apply to questions of justice; and (3) precluding citizens from employing moral and religious arguments in political discourse is an "unduly severe restriction" that "would impoverish political discourse and rule out important dimensions of public deliberation."

The Power of the Word

I will refrain from discussing each of these objections, which Sandel explores with the same careful analysis and clear insight that characterizes his original argument.   They are concise and accessible, and to rehearse them here would be superfluous.   The crux of Sandel's objections, as I see it, is his argument that Rawls's political argument presumes that we do not have the same disagreements about justice as we do about morality and religion.  For only if this assumption were to hold could we achieve the kind of stable political consensus that Rawls believes is accomplished by his principles of justice.

While it strikes me that Sandel is right, it seems equally clear to me that he understates the case.  Surely Sandel is right that privileging a political conception of justice carries its own implicit value structure, and that the reason why we should give priority to political values in the face of disagreement over other fundamental values is not at all apparent.  Even with this acknowledgment of the importance to persons of their commitments and attachments (including the political), he seems to treat religious and moral disagreement somewhat in the manner of a true American pluralist.   He recognizes that strongly-held beliefs can produce disagreement, but fails to notice (in the argument described in the previous paragraph) that religious and moral beliefs can themselves inform our conceptions of justice in a way that leads to an inevitable contingency of Rawls's principles.  We may not only disagree about the principles of justice; perhaps more dangerous is the fact that if we do agree with Rawls's principles, we may agree with them for different reasons, stemming perhaps from our religious or moral beliefs; and when the political principles conflict with our reasons for supporting them (which on the margin they easily might), we will abandon the political consensus for our more deeply held beliefs.  Revealed truth is hard to argue with.

The Silly Society?

Sandel too easily lets Rawls escape from his association with pragmatism.  (Richard Rorty embraces Rawls as a pragmatist, an affiliation Rawls disclaims.)  Though Rawls claims that his argument in Political Liberalism presents more than a pragmatist modus vivendi, ultimately it rests (as Sandel recognizes) on a concept of society that presumes reasonableness and toleration, and on an implicit recognition that the failure to embrace this concept is a conversation stopper (much as Rorty himself has argued).  But Sandel does argue that Rawls's idea of a political self has the potential to impoverish public discourse by robbing it of the arguments that are most important to us.   Sandel's strongest critique is focused on the way this arid discourse has the capacity to (and to some extent already has) encouraged fundamentalism, sensationalism, and just plain silliness.  A serious society, suggests Sandel, is a society that understands the importance to people of their fundamental values.  A serious society must be a society that is prepared to look fundamental disagreement in face and deal with it.

Lawrence E. Mitchell is the John Theodore Fey Research Professor of Law at George Washington University, and the founding Director of its Sloan Program for the Study of Business in Society.  He has written extensively about corporate law issues and jurisprudence, and his 1998 book, Stacked Deck: A Story of Selfishness in America, was nominated by Temple University Press for the Pulitzer Prize in General Nonfiction.

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Blade Runner Meets Superman:
Replicants, Truth, Justice and the American Way

by Margaret Chon

Cultural Software: A Theory of Ideology
J.M. Balkin
New Haven, CT: Yale University Press, 1998
Cloth: $35.00
Pp. xii, 335

He preached upon "breadth" till it argued him narrow,--
The broad are too broad to define;
And of "truth" until it proclaimed him a liar,--
The truth never flaunted a sign.

          -- Emily Dickinson

Perhaps it was inevitable that the interpretive turn in jurisprudence would swing towards mechanistic metaphors.  Master deconstructionists, such as Professors J.M. "Jack" Balkin (Yale Law) or Stanley Fish (who in the back cover blurb hails this book as "truly helpful"), have gleefully excelled at letting textual meanings loose from the cages of modernism.   Yet the resulting carnival of proliferating meanings can turn -- as Professor Pierre Schlag demonstrates ably in Laying Down the Law (New York University Press, 1996) -- into a normative void.

But I digress.  Although Balkin has kind words for Levi Strauss and even for Kant, this book is not about the reconstruction of fallen modernist heroes.  According to the Library of Congress, it is about "1. Ideology. 2. Culture. 3. Social Values. 4. Justice."  These grand concepts are approached through the unlikely metaphors of "software" and "memes."   Cultural software is "the knowhow that is part of every human being and that is shared by and transmitted between human beings through communication and social learning." (p. 5)  Memes are the cultural analogue to genes: "the building blocks of the cultural software that forms our apparatus of understanding." (p. 43)

Master Metaphors

Professor Balkin is preoccupied with explaining how cultural transmission contains simultaneously the ideological tools for oppression as well as liberation.  He is convinced that these metaphors of computer software and human genes are well-suited to his project of explaining ideology.  Throughout, he handles difficult deconstructionist jargon with elegant compactness and precision.  His book will attract not only its share of the usual "Balkinites" but also jurisprudential novitiates who demand a clear explanation of Derrida's concept of "diff駻ence" or Foucault’s theory of power/knowledge.   Moreover, those interested in cognitive theory will encounter a primer of the latest scientific thinking in this area.

Rather than viewing ideology as something above and apart from human beings, Professor Balkin locates it within the individual.  Rather than treating ideology pejoratively la Foucault, he characterizes ideology as "ambivalent."  Rather than describing ideology as fixed, he emphasizes its fluidity and reflexivity.  But his are not standard humanistic moves.  He parses ideology -- expressed through what he calls the master metaphor of cultural software -- into its component units, which he labels memes.   Memes include "skills, norms, ideas, beliefs, attitudes, values, and other forms of information" (p. 43)  (Think, for example, of the first four notes of Beethoven’s fifth symphony.)  But a meme can also be one of any number of cognitive tools that organize other memes, tools of human understanding such as "informational filters, heuristics, narratives, scripts, associations of meaning, and metaphoric and metonymic models." (p. 44)  Cultural information is transmitted through memes in much the same way as biological information is transmitted through genes.   Collectively, these units and tools of human understanding constitute ideology.

Cultural software is a "toolmaking tool." (p. 23)  Although Balkin focuses on micro-level explanations of ideology, his view of cultural transmission is devoid of the heroic figure who single-handedly and deliberately changes the course of history through some great idea or great act.  Instead people are simply vessels for the differential transmission of memes.  He takes an almost anti-humanist stance as he discusses how information is exchanged among individuals, and demonstrates how human understanding can be shaped unwittingly by the constraints of each tool.  On the cover of the book is a dark image entitled "The Bricoleur’s Daughter," by Mark Tansey.   A woman stands with her back turned to us, peering down at some unknown tool at her workbench.  If we stare closely, we can see the ambiguous outlines of brushes, goblets, cleavers and other implements of the kitchen or, perhaps, the studio.  To Balkin, cultural software is always an instantiation of bricolage, where "what the bricoleur creates in her jerry-built fashion she keeps with her to use in the next job, and the next.  The products of earlier bricolage become the new forms and methods of later bricolage." (p. 31)  The contents of the ideological toolkit do always expand, but in ways that are unexpected and for ends that cannot always be predicted.

Professor Balkin performs the considerable feat of using these mechanistic and arguably highly deterministic metaphors to highlight the fluidity and indeterminacy inherent in the cultural transmission of information.  He claims the metaphor of software is apt because computer software can be rewritten in response to different needs and circumstances, just as cultural software is modified and adapted to new social challenges.   And he further claims the metaphor of genes is apt because the differential survival of genes in response to environmental constraints is similar to the differential success of various memes in capturing human imagination and constructing human social reality.  While I kept reserving judgment about Balkin’s use of these metaphors, he shows that he understands their limits.  He carefully disclaims any complete correspondence between his object of study and the metaphors he uses to describe it, and astutely avoids a complete rapture with biological mechanisms of explanation, as was evident, for example, in Judge Richard Posner’s Sex and Reason (1995).

Curiously, however, Balkin has replaced the master narratives of modernism with what he unblushingly terms a master metaphor of ideology: cultural software.  While successful overall in demonstrating that he is not substituting positivism for indeterminacy, he nonetheless relies heavily, almost exclusively, on these two metaphors to the exclusion of others.  And that, as the folk tales tell us, is where the trouble begins.

Master Hand?

The metaphors of software and genes are inherently instrumental.  Software is a set of human-articulated directions toward some concrete end.  Rather than being simply a text that is written and rewritten, software is supposed to do Something.   In her "Manifesto Regarding the Legal Protection of Computer Programs" (Columbia Law Review, Dec. 1994), Professor Pamela Samuelson defines "[c]omputer programs a[s] machines whose medium of construction is text."   While Balkin is quite specific about how text is written and re-written, he is quite vague about the purpose of the resulting machine.  Clearly, human beings need cultural software in order to survive physically.  Thus, the meme for throwing a spear with the point first has an obvious purpose.  But after we get past the first level in the hierarchy of human needs, how do we make sense of or prioritize the specific ends to which cultural software is deployed?  Do we bounce balls, play music, or create laws?

Genetic metaphors pose the same issue.  The Selfish Gene has become a kind of metaphoric icon in the same way The Paradigm Shift has become an heuristic icon of the late twentieth century.  As with software, however, genetic transmission has a very convenient way of being explained by the need of the organism to adopt to particular environmental constraints.  In other words, genetic information or "text" is written and rewritten in order to ensure survival of the species (or, if one accepts Richard Dawkins's premise, of the genes themselves).  Thus, as with the metaphor of software, there is a discernible end towards which the biological process dedicates itself.

With ideology, there is no such overarching organizing goal.  As Balkin points out, ideologies can be dysfunctional and destructive to human beings.  For example, pernicious ideologies such as racism are replicated successfully.  Moreover, different cultures will have different, sometimes conflicting, priorities.  In part to solve this lack of instrumental focus, and in part to cope with the problem of cultural relativism, Balkin nominates a second goal for his theory of cultural software: "it is concerned with how these tools of understanding help create or sustain injustices in particular social contexts." (p. 104)  This normative component of cultural software ensures that Balkin’s theory does not end up being a purely mechanistic or relativistic metaphor of ideology.  His concept of injustice is left mostly undefined (p. 120), although he prefers that it be "the creation of unjust power or unjust social conditions." (p. 112).  Whatever justice is, it is a transcendent ideal.   That is, "[w]e must regard truth and justice as something that has claims on others besides ourselves." (p. 146)  Otherwise, individuals would have no way of evaluating cultural ideologies (not to mention simply getting along with other people).

But is this normative component enough?  Without more specific examples, it is impossible to ascertain whether Balkin succeeds at imbuing his mechanistic metaphors with an acceptable instrumental end.  Certainly, it is important to map how ideology is transmitted on an individual level rather than treating it as something "out there."  And it is also important to articulate transcendent, if not universal, norms of truth and justice, in order to evaluate ideologies.  But blurry notions of truth and justice, relativistic or otherwise, do very little to rank order different injustices, or to explain individual agency over cultural software.  Does the same "insatiable urge for justice" (p. 161) underlie both a child’s whine for the same toy as her brother and Mahatma Gandhi’s struggle for freedom on behalf of the Indian people?  How does an affluent person’s sense of justice permit her to demand a private abortion for her daughter but allow her to be against public funding of abortions for other peoples’ daughters?  The "truth" could be that child is demonstrating spirit and the mother generosity.  Thus, how are we to critique these acts on the basis of "truth" if we find them inconsistent with "just social conditions"?   Balkin leaves too much of this important analytical process to our imaginations.

Just as significant a flaw is Professor Balkin’s disregard of the reinforcing and reflexive nature of information within and among groups.  His description of ideological transmission, even by reference to normative measures such as justice or truth, effaces the interconnectedness of ideological effects.  To use his example, there is arguably no positive social goal that is associated with the ideology of anti-Semitism in Japan. (p. 106)  He alleges, however, that Japanese anti-Semitism is not problematic unless and until there is empirical demonstration that it has negative ideological effects, i.e., that it sustains unjust relations of power.  Only then do we need to pay attention.

Such a disinterested approach to the question of anti-Semitism might seem plausible, until one recalls the connections between anti-Semitism and other forms of racial injustice during this century.  During World War II, the U.S. fought "for" Jews and "against" Japanese.  But, was not the ideology sustaining the terrible anti-Semitism in Europe the same ideology that justified interning Japanese Americans in concentration camps?  Is not the same ideology that gives rise to anti-Semitism in Japan (which would affect very few if any actual Jews) also one that sustains current anti-Korean discrimination in Japan (which affects a substantial number of Koreans)?  Is the way Asian Americans currently are held up as an academic model minority by Professors Daniel Farber & Suzanna Sherry in Beyond All Reason (1998) (with the analogy to Jewish Americans who overcame anti-Semitism) part and parcel of the same ideological baggage?  And does not that false analogy affect Asian Americans who may have to struggle with poverty and lack of educational opportunity as members of an underclass?

Further, if we accept justice as a premise for evaluating ideologies (as I do, presumably for the same reason that Balkin does -- because we’re both lawyers), then what about distributional justice for the transmission and distribution of cultural software?  Balkin curiously disregards inequitable access to pervasive technologies of ideological transmission, such as television.  His focus is on the individual transactions to the exclusion of macro-level effects.  The master hand (if there is one here) is the invisible one, albeit modified in part by the cognitive apparatus and thirst for justice.

And finally, if we do not accept justice as a premise for evaluating ideologies, but focus rather on beauty or love as the instrumental end of human existence, then this book is radically incomplete.

Master of Narrative

Professor Balkin’s metaphors illuminate, but they also disguise in ways that he does not always recognize.  That, of course, is one of his points, which he calls the problem of self-reference.  Balkin is a master at the anti-narrative narrative, and this book embodies this considerable power, which, from another academic’s standpoint might seem somewhat unjust, but certainly not undeserved.

Margaret Chon is an associate professor of law at Seattle University School of Law.  She writes in the areas of intellectual property, digital technologies, and critical race theory.  Her most recent book review is entitled "Acting Upon Immigrant Acts: On Asian American Cultural Politics" (76 Oregon Law Review 765 (1997).

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German Jurisprudence & Its Response to Hitler
by Richard Weisberg

The Law Under the Swastika: Studies on Legal History in Nazi Germany
Michael Stolleis, translation by Thomas Dunlap
Foreword by Moshe Zimmermann
Chicago, IL: University of Chicago Press, 1998
Cloth: $29.95
Pp. xvi, 264

The decision of a fine American university press to publish Law Under the Swastika indicates the breadth of the historical community's interest these days in the details of Holocaust research.   Michael Stolleis examines here the "syndrome" of Nazi legalism, specifically the ways in which the Third Reich capitalized on already-existing patterns of German legal thinking to propound its own "revolutionary" programs and -- with equal attention from the author -- the manner in which post-war German law rejected (or, at times, adopted!) the developments of 1933-45.  Although the book often reaches into very specialized areas of German law to make its points, I am pleased that it now reaches the English-speaking scholar, because Stolleis has contributed a thought-provoking analysis that far surpasses any narrow range of insular interests.

Stolleis, one of the younger generations of Germans facing the Holocaust, examines the soil of pre-war academic and judicial thinking, and finds it sufficiently fertile to give the Nazis the legal changes they desired.  In so doing, Stolleis reiterates a point made elsewhere about legal systems under Nazi rule (Vichy provides another example): namely, that no ruler has power absolute enough to bring about radical evil without help on a massive scale from ordinary people, including lawyers. Hitler's understanding of power by 1933 led him to work with, rather than try to overturn, existing German legal institutions.  In so doing, even he had to compromise on some points of law (the Prussian Administrative High Court especially was protecting Jews and fighting the Gestapo -- at least within the limits of the Realpolitik -- until well into 1936, three years after the regime took power).

The Paradoxical Effect of Fascist Innovation

Furthermore, in what strikes me as the most provocative and comparatively striking theme of the book, Stolleis indicates that some Nazi "innovations" forced upon lawyers, particularly legal academicians, compromises that worked ultimately for the betterment of German jurisprudence.  Elaborated in the central chapters of the book (four through six), this suggestion will not shock non-German scholars of Holocaust legal developments.  Awash in both formalism and a somewhat dessicated kind of positivism, European law not only seemed receptive to even the most radically evil pronouncements of whoever passed for the "sovereign," but, just as interestingly, needed the creative impulses represented (in their worst form) by a leader like Hitler.

Think of it this way.  You have a system whose allegiance to authority and to formalism is already evident before the Third Reich was even conceivable as a power-structure.  Suppose that, instead of Hitler, a similarly non-formalistic variety of creative program had been introduced by a leader like Franklin Delano Roosevelt.  Trade Germany and the USA during the 1930s, and you have made the point urged by Stolleis.  Ground-breaking policy, always needful of judicial and legal help -- and often frustrated by legal conservatism -- may be judged by history as "good" or "evil" less because of its radical innovation per se than because of the nature of that innovation.

What this meant for post-war German thinking and German legal institutions was that some salutary outgrowths of the Nazi period could be extended without the risk of the absolute Nazi evil that had brought them about.  This observation, the generality of which will be more interesting for the American reader than the specific instantiations in German courts and universities, opens up two particular lines of thinking for the reader.   First, Stolleis pervasively proves that positivism was not the primary reason German lawyers went along with Hitler.  As I have argued in the case of Vichy France -- but for different reasons -- European legal systems under Hitler had to be ready on the level of deepest values to "buy into" most of the vicious new programs they were facing.  A mere positivism could not have brought about the level of harm we saw in France, Germany, and elsewhere, because the systems had to be largely left in place by the fascist leaders, however powerful, and because a real positivist thus had endless ways of prevaricating, undermining, and even rejecting the innovations.  True, in Germany (unlike Vichy), there was an active legislature under Hitler's complete control that could and did (in many areas, like race) write texts that positivists could surely not ignore.   But some of those texts were in response to anti-Hitler decisions by courts like the one in Prussia, or were still open to positivist interpretation.  What really counted was that most judges and (very sadly) most academicians adopted the "creative" personal vision of the Fuhrer virtually as their sole guideline.   And, to do this, they had to entertain beliefs prior to 1933 that were in line with those of their new leader; some of those beliefs had their roots in Hegel and Heidegger as much as in Mein Kampf.

Is There a Path to Justice after the Holocaust?

Second, Stolleis's superb work in the middle chapters indicates that neither postmodernist obliteration of all idealistic and referential systems (Critical Legal Studies, via Derrida, in the United States) nor positivistic recapturing of law (H.L.A. Hart or Hans Kelsen) is the "answer" to the excesses of European law during the Holocaust.  Rather, again, it is the necessity to infuse into the always potentially dessicated body of legal thinking a constant stream of value-orientation that rebels against Hitler substantively, but does not go so far as to yield to his example forever the very use of idealism, creative dynamism, or even natural law.

Each of these subtexts is exemplified in many areas of law by the author.  The problem precisely is that most American readers will not be terribly interested in the subject matter of German academia -- although here the discussions of Carl Schmitt contribute to the many recent efforts about that nebulous but still influential Nazi apologist -- or of German administrative law, or even of the fate of certain "neutral" or mildly collaborationist German judges and professors during the post-war period.  Nonetheless, the readership for this generally good translation should extend well beyond Holocaust legal historians such as myself.  Any lawyer or historian should read this book if interested in the way even an eventually absolute dictator must first succeed in attracting at least a handshake, if not a hug, from the authoritative individuals already situated in their relatively benign places when evil -- as it will from time to time -- fouls the environment.

Richard Weisberg is the Floersheimer Professor of Constitutional Law at the Benjamin Cardozo Law School at Yeshiva University.  His most recent book, Vichy Law and the Holocaust in France, has just appeared in French translation, per Editions des Archives in Paris.  He maintains a related website on Vichy law.

Editors' Note: For other readings on German jurisprudence under Hitler, see Ingo Muller, Hitler's Justice: The Courts of the Third Reich (Deborah L. Schneider, trans.) (Harvard University Press, 1991) and "Symposium: Nazis in the Courtroom: Lessons from the Conduct of Lawyers and Judges Under the Third Reich and Vichy France," 61 Brooklyn Law Review 1122-1164 (1997).

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Law as Practice and Institution
by Dennis Patterson

Matters of Principle: Legitimate Legal Argument and Constitutional Interpretation
Richard S. Markovits
New York, NY: New York University Press, 1998
Cloth: $50.00
Pp. 280

An Institutional Theory of Law: Keeping Law in Its Place
Peter Morton
New York, NY: Oxford University Press, 1998
Cloth: $93.50
Pp. 432

Legal theory is increasingly becoming more and less interesting.  Many are the approaches now making their way into the broadening theoretical discussion of law.   From economics to critical theory, law & society to cognitive studies, the offerings have never been richer.  Much of this work is quite good, some of it less so.  This is inevitable.  But there is so much that is good -- such as the two books under review – that one can even endure the ever-narrowing focus of the legal positivist discussion and the tiresome predictability of some forms of "radical" scholarship.

Law as Institution

But enough complaining.  Let me make a few stage-setting remarks, and then turn to the books under review.  Looked at from the point-of-view of analytic jurisprudence, the idea that law is best understood as a practice or institution has come to enjoy wide support.  For some time, the work of Neil MacCormick and Ota Weinberger in The Institutional Theory of Law (Oxford University Press, 1986) was about the only source of a deep discussion of law from an institutional point-of-view.  This is changing; for the better.

MacCormick and Weinberger’s work fits together well with people who, like myself, have been trying to think about law from the point-of-view of practice.  (I have in mind the work of Philip Bobbitt in constitutional law, as well.)  Eschewing the positivism/naturalism/third way (Ronald Dworkin) framework, practice theorists have rethought traditional questions or issues (e.g., truth, justification, legitimacy) from a fresh perspective.  It is a measure of the success and possible long-term implications of this perspective that the two books under review take the focus they do; for they confirm that practice theory is on to something.

University of Birmingham Professor Peter Morton looks at the practice of law from the vantage point of institutions.  For him, practice is primary.  He states that practice "is the most important of institutional forms for the purposes of understanding the legal world." (p. 38)   Practices are human activities or procedures, with normative practices distinguished by the fact that we have the power to "change the world" by changing our normative practices. (p. 39 ff)

In Morton’s account of practices, one hears echoes of much recent work in general philosophy, with emphases on brute vs. institutional facts (G.E.M. Anscombe) and the role of intentionality in norm creation (cf. John Searle).  Morton rejects the idea that law can be reduced to rules (p. 58); that would, at least initially, put him outside the legal positivist camp.  This does not mean that practices are not real -- in fact, Morton ascribes to legal practices the status of Popperian Third World Objects.

But what connects legal practices, legal institutions, and justice?  This is the large question in Morton’s book.  He answers it, in part, with a defense of legal justice -- the idea that decisions "under law" are both possible (rejecting radical indeterminacy) and desirable.  But Morton unpacks legal justice in terms of versimilitude between rule application and principles of justice.  His key principle is respect for persons (echoing Dworkin on "equal concern and respect").  He puts the matter simply and elegantly: "[I]n interpreting and applying the rules, the judges should be committed to showing the greatest respect for persons which the meaning of the established rules will allow." (p. 61)

In the balance of his book, Morton spells out the meaning of his general position for various departments of law.  These include criminal law, civil law and public law.   Along the way, the reader is treated to interesting discussions of, among other topics, the nature of legal rights, the structure of private law liability, and the role of public law in a constitutional democracy.  I would have liked to see more incorporation and expansion of the earlier discussion of practices, which looked quite promising.  But Morton favors description over explication. I hope he continues to work on the idea of practices, as this first effort at the topic is quite satisfying.

Law as Practice: Autonomy, Legitimacy and Morality

Of the two books under review, University of Texas Law Professor Richard Markovits’s is the more ambitious.  Markovits embraces Dworkin’s approach to legal theory, endorsing the notion of a deep connection between law and morality.   But Markovits is more open than Dworkin to the idea of law as an autonomous practice, albeit one that is not self-legitimating.

It is this last point, legitimacy, that is central to Markovits’s account of the nature of law.  In addition to Dworkin, Markovits takes up the constitutional theorizing of his colleague, Philip Bobbitt.  In Constitutional Fate (Oxford, 1982) and Constitutional Interpretation (Blackwell, 1991), Bobbitt argues that constitutional law is a practice, one composed of six forms (or "modalities") of legal argumentation: textual, doctrinal, historical, structural, prudential, and ethical.  It is with these forms that lawyers show (in the sense of the early Wittgensteinian showing/saying) the truth of legal propositions.  According to Bobbitt, there is nothing more (nor less) to constitutional argument than the use of the six modalities.

Owing to his account of constitutional practice, Bobbitt can see little point to contemporary debates about the "legitimacy" of constitutional law.  For him, a constitutional argument is legitimate if it is made in one or more of the modalities.  Justification -- either of a constitutional conclusion or of the practice of constitutional law itself -- is an exercise for the seminar room.   Constitutional law may be inefficient, unjust, or wicked. Bobbitt does not deny this.  What he does deny is that assertions about the state of constitutional law, when uttered in the vocabulary of non-legal discourses, fail to state legal truths.   In short, outside the modalities, there are no legal truths.

It is fair to say that much in Markovits's position is consistent with Bobbitt’s perspective.  Early in Matters of Principle, Markovits complains that, owing to their loss of faith, legal academics do not take legal argument seriously. (p. 8 ff)  What he means by this is that many law professors do not believe that the law "can generate internally-right answers."  Owing to their apostasy, legal academics turn to other disciplines, which they then use to talk about legal issues.   This leads, among other things, to a pedagogical and professional anomaly: "I am consistently dismayed at the inability of many if not most top graduates of elite law schools to recognize, much less articulate, the difference between legal-rights analysis and non-rights-oriented policy-analysis." (p. 9)

While taking much from Bobbitt, Markovits departs from his colleague in a number of significant ways, which is understandable in light of his Dworkinian commitments.   Interestingly, Markovits builds his philosophical position out of a series of what he terms "anthropological observations." (p. 1)  Significant among these is the claim that ours is a "rights-based culture," (p. 53) one in which arguments of principle are primary.  This observation underwrites Markovits’s claims regarding the legitimacy of legal argument.  Only legal argument consistent with the demands of moral principle can claim the mantle of legitimacy.

As I have said, Markovits builds his position out of elements taken from Bobbitt and Dworkin.  What is interesting about this is that Bobbitt and Dworkin are theoretical opposites.  Bobbitt is a conventionalist: he believes that practices like constitutional law do not need to be underwritten by or reducible to something else (e.g., truth-makers, basic moral propositions, moral reality).  By contrast, Dworkin claims that law is deeply connected to morality, and that legal argument is reducible to (or a form of) moral argument.  At some point, Markovits has to choose conventionalism or constructivism.

Markovits's sentiments are clearly constructivist, but his argument is conventionalist in nature.  He grounds the legitimacy of law in nothing more solid than the anthropological observation that ours is a rights-based culture.  Fine.  But we could be a rights-based culture just because we inherited this form of discourse.  To go from practice to foundation, Markovits has to make the case that legitimacy requires a certain form of legal practice.  It may be true that a rights-based culture requires a legal discourse like the one described by Bobbitt.  But that could be an entailment relation, not an exercise in legitimation.  To sustain his claim about legitimacy, Markovits needs to show that a rights-based culture is the only way to preserve more basic ethical values.  I am not convinced he has done this.

Nevertheless, Matters of Principle is a book which repays re-reading.   There is much of interest here for those working in both jurisprudence and constitutional theory.  This is a significant contribution to the literature.

Dennis Patterson is Distinguished Professor of Law, Rutgers University, School of Law(Camden).   He is the author of Introduction to The Philosophy of Law (Oxford, 1999), Law and Truth (Oxford, 1996) and Editor of the Blackwell Companion to Law and Legal Theory (Blackwell, 1996).

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New Beginnings for Citizenship Theory?
by Frank H. Wu

Citizenship and Civil Society:
A Framework of Rights and Obligations in Liberal, Traditional, and Social Democratic Regimes

Thomas Janoski
New York, NY: Cambridge University Press, 1998
Cloth: $59.95 / Paper: $19.95
Pp. 256

Citizenship matters.

Many thinkers engage in a tremendous debate over the proposition that citizenship matters.  Advocates declare for globalism, cosmopolitanism abstract and "rooted," nationalism, multiculturalism, the selfish gene, transnationalism, "Americanization" by program, communitarianism, free markets, natural law, and the ugly triumph of racial identity.  Yet, few writers bother to ask why citizenship matters and what it means.  Thomas Janoski (Duke University, Sociology) represents the rare type.  In Citizenship and Civil Society: A Framework of Rights & Obligations in Liberal, Traditional, and Social Democratic Regimes, the political philosopher attempts this ambitious task.  He seeks not only to address the content and use of citizenship, but also to do so comparatively and historically.  It is a worthwhile endeavor, well executed.

Citizenship Theory

Janoski's book applies the ideas of two major theorists in an exceptionally organized manner.  The two thinkers on whom he relies are Wesley Hohfeld and T.H. Marshall, neither of whom has ceased to be prominent, but both of whom have enjoyed recent revivals.   Using Hohfeld's categories and Marshall's inspiration, Janoski structures his book to concentrate on the balance of rights and obligations, the contrasting sets of rights within three types of regimes, and the changes to rights over time.  This is a successful combination of features.  It has the consequence of producing a daunting set of propositions, however.

In a set of articles before World War I, Hohfeld offered a formal system of "jural relationships," based on paired terms such as "right" and "duty," "privilege" and "no-right," "power" and liability," and "immunity" and "disability."  According to Hohfeld, any right is necessarily bundled with a duty.  Hohfeld sought to create his own language of analytic jurisprudence, which deviated somewhat from conventional usage -- his "privilege" might also be characterized as a "right" without a necessary "duty." 

The Hohfeld scheme gives Janoski a sophisticated means of explaining how rights and duties are related.  It is a considerable improvement over popular rhetoric offered by critics of the welfare state who wish to have only a few negative liberties in the Isaiah Berlin sense, coupled to many affirmative obligations of their own imposition.  In place of vague attacks on entitlements, Janoski employs Hohfeld's categories consistently.  For example, he characterizes a social right such as public education as depending on taxpayer support, rendering it as a "claim."  A claim "require[s] the positive and supportive action of other persons." (p. 43)  The definition helps set forth what citizenship entails: each claim is matched to its correlative.  Once the forms of exchange are elucidated, the complexity becomes apparent.

Across the Atlantic, Marshall's 1949 lectures on citizenship delineated its civil, political, and social facets.  Marshall began with the premise that "citizenship is a status bestowed on those who are full members of a community," and "all who possess the status are equal with respect to the rights and duties with which the status is endowed."  He argued that "citizenship requires a bond of a different kind [than kinship], a direct sense of community membership based on loyalty to a civilization which is a common possession."  He recognized that even though many forms of inherited privilege were declining in influence, educational credentials were increasing in importance; through it, "citizenship operates as an instrument of social stratification."  He also observed that "in the twentieth century citizenship and the capitalist system have been at war."

Janoski remedies the lack of quantitative elements in Marshall's essay.  Both his comparison of current conditions and his time-sequence are heavy on statistical data, such as tax rates and military conscription rates.  He agrees with Marshall that rights have been acquired in order: legal property rights leading to political and social rights, and proceeding finally to participational rights. (pp. 173-216)

A Foundational Effort

The major criticism of Janoski is barely critical.  His book is, more than anything else, an effort to create a typology, a comprehensive language for further inquiry.  It appears to be almost an introduction to a series of projects rather than a finished work in itself.  It is a foundational effort, true to its sub-title of "a framework."

Only a selective summary of the framework can be given here.  Janoski starts his inquiry with definitions such as "citizenship is passive and active membership of individuals in a nation-state with certain universalistic rights and obligations at a specified level of equality." (p. 9)  Like Michael Walzer, Janoski divides society into spheres: he introduces four overlapping spheres of state, public, market, and private. (p. 13)  Following others, Janoski divides citizenship rights into types, each of which is further subdivided: legal, which curiously includes "rights of aliens to immigrate and citizens to emigrate;" political; social; and participational. (p. 31)

Much of the book is devoted to the study of these rights in the various regimes.   Janoski compares social democratic regimes such as Sweden, traditional regimes such as Germany, and liberal regimes such as United States (and mixed regimes under which he includes the United Kingdom) on factors such as percentage of the electorate voting in major elections. (p. 34)  The remainder of the book is given to the study of the corresponding obligations in the same regimes, and the dynamic of rights and obligations.   Janoski remarks that "obligations have been ignored because they had become a taboo topic after the totalitarian regimes of the first half of the century."   Because rights must be accompanied by obligations and vice versa, Janoski argues that the latter must receive "renewed attention" with the purpose to "prevent [them] from going too far in a coercive direction." (p. 73)

He proposes six conclusions, working from the groupings of regimes: (1) rights and obligations are intimately related, not simply as a matter of formal logic but out of empirical observation; (2) rights and obligations are not always related in a "one-to-one contractual manner as in restricted exchange;" (3) personal obligations are limited and hence distinct from state obligations; (4) obligations must have "notching mechanisms" to limit their effect and mediate conflicts among them; (5) sanctions should accompany obligations -- and support rights; and (6) a balance should produce better than obedience to the state, participation, dissent, and multiculturalim within the state. (pp. 73-74) 

Janoski then refines the relationship among obligations.  He opens with a rejection of extremes.  He refuses to chose between "rational choice and more norm-oriented perspectives" that require actions be sorted out between the purely self-interested and the altogether altruistic.  He prefers to speak of restricted and generalized exchange. (p. 76)  "Restricted exchange exists most often in markets," he states, but can be single or multiple or at a group level.  The paradigmatic example he offers is "you may give one dollar to a baker and immediately expect a loaf of pumpernickel bread in return." (pp. 77-82)  Like restricted exchange, generalized exchange can operate within an open or closed society, with overlapping groups or mutually exclusive groups.  A generalized exchange, especially if it is more open and has overlapping groups, becomes tenuous as "the taxpayer" who has given a specific amount in advance "looks to more general repayments for the overall welfare of the group." (p. 83)

Predictions & Progressive Change

With rights and obligations interacting in these exchanges, Janoski predicts the course of regimes in a lengthy series of hypotheses.  For example, he believes that "liberal societies should rely more on restricted exchange in the construction of political and economic institutions, while social democratic and traditional societies will rely more on generalized exchange." (p. 123)  The problem, of course, is achieving the balance of rights and obligations in such a generalized exchange.

As should be apparent, Janoski's book has a broad scope.  He continues by looking at the extension of citizenship rights.  He describes four means of progressive change.  They include: (1) social movements from below; (2) elite changes from above; (3) "sacrifice extensions . . . from below caused by state mobilization for war dictated from above;" and (4) naturalization for foreigners. (p. 144).

The hypotheses are presented with caution.  They deserve to be tested more thoroughly.  Janoski argues, to take an example that confirms his attention to almost all aspects of national experience that alter rights and obligations, "countries with extensive occupation during wartime (i.e., being occupied or losing the war) will develop status leveling and strong social rights.  This process reverses when countries do all their fighting on foreign soil." (p. 193)

He also seeks to determine what generates the legitimacy of regimes, given certain levels of rights and obligations, and the type of exchange.  He notes that "the closure of nations by restricting immigration" is as much an end as a means, because it allows generalized exchange and encourages trust. (p. 141)  There are still free riders, but they can be subjected to cultural sanctions, and fewer outsiders who can become in turn free riders.

As a system, the Janoski book boasts internal consistency.  But its value as a system also obscures its flaws.  His use of three regimes, expressly setting aside "communitarianism and expansive democratic theory" as "hav[ing] fewer partisans and tend[ing] to chip away at liberal theories from the outside," for example, is a puzzling decision. (p. 18)  The data, despite the range of cited sources, are limited and they are explained in much less detail than might be expected.

Citizenship in the Abstract

Moreover, Janoski's approach suffers from its abstraction and its level of analysis.   Citizenship is taken for granted by those of us who enjoy it.  The conditions of the immigrant, the exile, or any individual who in fact lacks equality are treated by definition as aberrational rather than integral to the conception of community.  If equality is taken as a condition of citizenship, these problems are assumed out of existence, or at least diminished in proportion.  Janoski presents another list, accompanied with cursory explanation, of the holders of rights: citizens; stigmatized humans; impaired humans; potential humans; human-like non-humans; and, separately, groups, of which racial and ethnic groups are the primary concern.

Yet, as Rogers Smith has shown in his exhaustively researched Civic Ideals: Conflicting Visions of Citizenship in U.S. History (Yale University Press, 1997), our notions of membership -- and the problem is embedded in the very reference to "our notions" -- have been ascriptive all along.  They have created the hierarchies that, despite our myths, have been based on distinctions of race, national origin, gender, and religion.

To these problems Janoski brings context at a macro-level, but only at a macro-level (thus far in the work).  His synthesis is incomplete.  The study does not yet exist that brings together history, geography, culture, biology, psychology, sociology, political theory, international relations, and economics, all in an effort to understand citizenship.  In this respect, Janoski can no more be slighted than specialists in any academic discipline.

Thomas Janoski's Citizenship and Civil Society is highly recommended for any reader who cares about the multiple meanings of postmodern citizenship.  He has created a model for research.

Frank H. Wu is an associate professor at Howard University Law School. I n 1999, Basic Books will publish his Beyond Black and White: Asian Americans and Civil Rights in the Next Millenium.

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