Vol. 14 No. 1 (January 2004)
THE OXFORD HANDBOOK OF LEGAL STUDIES, edited by Peter
Cane and Mark Tushnet. Oxford, UK: Oxford University Press. 1071 pp. Hardbound $80.00. ISBN: 0-19-924816-8.
Reviewed by Albert P. Melone, Department of Political Science,
Southern Illinois University Carbondale. Email: melone@siu.edu
Those of us who focus on law, courts, and politics share
a common problem with scholars in most every other field. The rhetorical question-"Who
knows physics?"-applies equally well to political science and to law. The
answer is no one today knows the entirety of his or her field of study. Though
probably inevitable in this age of specialization, the lack of an overview
that comes with knowing fields of study is a serious impediment to theory
building regardless of academic discipline. Peter Cane and Mark Tushnet have edited a volume that helps
us to cope with this serious problem.
If one is trying to gain a conceptual overview of a wide
variety of contemporary legal fields, this massive volume is not only the
place to start but also it is the place to dwell, reflect and ponder. The
editors present 43 searching essays by legal scholars almost exclusively from
the common-law world of the United Kingdom, Australia, New Zealand, Canada
and the United States. Each essay lays out the dominant scholarly trends and
conceptual frameworks that express the concerns and debates in contemporary
legal scholarship at the beginning of the new century.
The editors of this lengthy but well-written volume by 48
contributors is divided into seven parts, not all of which will be of immediate
interest to political scientists. I suppose out of deference to the historical
preoccupation with private law in the common-law tradition, the editors position
"Property and Obligations" as Part I of the book. It contains chapters on
contracts, torts, restitution, property, and equity. Part II focuses on traditional subjects of public law. It is
titled, "Citizens and Government," and contains chapter essays on: the nature
and functions of the state, regulation, review of executive action, judicial
review of legislation, citizenship, discrimination, criminal law, criminology,
the international legal order, human rights, the European Union, and complex
polities. Most of the remaining parts of this book are not traditional legal
categories, although each is of contemporary interest. Part III is in five
chapters under the general title of "Wealth Redistribution and Welfare," featuring
chapters on taxation, the welfare state, families, health, and global development
and impoverishment. Part IV is devoted to "Business and Commerce." It contains
five chapters on corporations, competition, consumers, workers, and international
business and commerce. Part V is titled "Technology." This five-chapter section
focuses on intellectual property, the media, abortion and reproductive rights,
and the environment. "Processes," is the title of Part VI, and it contains five chapters
on legislation and rule-making, civil processes, criminal process, lawyers
and legal services, and international legal sanction processes. The last part
of the book is devoted to "Research and Researchers." These seven chapters
treat a transnational concept of law, historical research in law, empirical
research in law, legal education, the role of academics in the legal system,
a century of legal studies, and law as an autonomous discipline.
Those interested in comparative and international perspectives
will find this volume a welcomed addition to the literature. Though there
is precious little about family of laws other than the common law, most of
the authors engage in comparative analysis on the scholarship and legal practices
of nation-states besides their own. Hence, readers will find, for example,
many comparisons of the United Kingdom and the United States. Moreover, the
dramatic impact that the European Union (EU) is having on the laws of nations
is reflected in many of the essays, even though the EU may not be the central
subject under discussion. In brief, one cannot help but realize how globalization
is profoundly influencing developments in legal fields such as torts, contracts,
property law, legal processes, and traditional public law topics that were
once thought parochial subjects. As noted in one essay, "no legal scholar
can confine her attention to just one jurisdiction and by situation rather
than training, 'we are all comparatists now'" (p.921).
At the end of each chapter the authors provide a list of
references so that readers may further explore each topic. And while many
chapters are first-rate bibliographical essays, it is a mistake to regard
this book as only that. Some essays faithfully relate the state of the law
on a given subject- with all of the law's internal inconsistencies associated
with its often circuitous and tangled historical development. Also, readers may justifiably view other essays as treatments
of competing approaches or paradigms where authors take positions on where
legal scholarship ought to be heading. Though often subtle, the different
ways in which the essays are written add color and intellectual texture to
the overall effort, and this renders the reading task thoroughly engaging
and absorbing.
Unfortunately, space limitations permit brief mention of
only a few of the many fine essays appearing in the HANDBOOK that readers
of this review may find interesting. Mark Tushnet's essay on judicial review
is comparative in a way that helps us to understand the growing uses of what
he terms soft and hard versions of judicial review that are currently employed
around the world. This essay is theoretically focused, yet empirically oriented,
with referents to how the real world works. Sandra Freedman's chapter on discrimination
places in juxtaposition the liberal idea of individualism with the modern
notion of equality and along the way provides penetrating critiques of neo-liberalism,
modified liberalism, and finally critical legal theory. Not an inconsequential
achievement, Freedman in the span of only one chapter covers considerable
intellectual ground, allowing readers to wrap their minds around the vexing
problem in its various manifestations. Political
scientists interested in the connection between private and public law will
find John C. P. Goldberg's essay on tort law intriguing, as he describes the
tension between the traditional tort law as treating wrongdoing and making
injured persons whole again and regulatory law with its emphasis upon government
deterrence and compensation of accident victims. Peter Cane's chapter on executive
action contains in part an intellectually candid treatment of the differences
between U.S. and Commonwealth legal scholars as they approach the subject
matter of administrative law. He opines: ". . . American legal scholars as a group are
more 'fashion conscious' and more inclined to 'herd behavior' than Commonwealth
scholars. In a profession as large as the US legal academy, the adoption of
ideologically charged and intellectually polarized positions may be perceived
as the best way of marking a mark" (p.157).
While reading the text, my long-standing view was reinforced
about the lasting legacy of legal realism-a movement started in U.S. law schools
during the first third of the 20th century and manifested in the judicial
behavior movement in Political Science during the last half of that century.
Realism clearly had a great impact on legal scholarship in England, the United
States, and beyond. Not always acknowledged, it is the tradition that links
modern legal scholarship and Political Science, although when that linkage
is mentioned, it is generally referred to in the past tense. Consistent with
legal realism, the contributors to this volume seem to devalue the role of
scholarship that emphasizes the logic of legal argument and certainly pays
little attention to doctrine and legal rules as a central focus.
To their credit, most contributing authors are sensitive
to the political, social, and economic contexts in which law is developed.
They appreciate how each interacts with law to create public policy. Yet,
I was disappointed but not surprised to discover that the legal scholars writing
in this otherwise fine volume displayed little knowledge of the contributions
of U.S. political and other social scientists to understanding the law. There
is an appropriate acknowledgment of the law and society literature in the
United States and the premier journal of the same name. As a reader, however,
I gained the distinct impression that the U.S. literature on law and politics,
particularly research focusing on judicial decision-making, inter-institutional
conflict, and impact studies, is not well known; it certainly does not play
an important role in intellectual circles on the other side of the pond. Some
writers recognize the contribution of the socio-legal centers in Britain,
but that recognition is limited mainly to legal sociology.
Besides the need to continue to develop empirically testable
conditional universal propositions and consistent with the perestroika movement
within contemporary political science, one set of authors proclaim a cyclical
theme in social science and legal literatures. In their chapter on the role
of academics in legal systems they write, "If international legal scholarship
is going to advance humane values and not simply serve those in power, it
must supplement legal doctrine with international relations theory and political
philosophy. Otherwise, it will continue to be an exercise in futility" (p.947).
And to that I say, amen, amen.
THE OXFORD HANDBOOK OF LEGAL STUDIES is a valuable contribution to our collective knowledge that scholars of various backgrounds and interests need to read. While as a method I can attest that it is a very enriching experience, it is not the type of book that most scholars will read cover-to-cover. Rather, most will pick out those essays that they find pertinent to their immediate interests. Nonetheless, it is a volume belonging in university libraries and on the shelves of serious students of law and law-related subjects everywhere.
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Copyright 2004 by the author, Albert P. Melone.