Vol. 10 No. 6 (June 2000) pp. 383-385.

TO PROMOTE THE GENERAL WELFARE: A COMMUNITARIAN LEGAL READER by David E. Carney (Editor). Lanham, MD: Lexington Books, 1999. 324 pp. Cloth $65.00. ISBN: 0-7391-0032-7

Reviewed by Cynthia G. Hawkins-Leon, New England School of Law, Boston, MA. E-mail: cghleon@faculty.nesl.edu

As the title suggests, this book is a reader comprised of individually written essays that can be generally categorized within the law and social policy genre. The book is organized into four substantive sections offering a total of nine discreet essays: namely, communitarian jurisprudence (one essay), civil law (three essays), criminal law (two essays), and constitutional law (three essays).

The reader's Introduction, written by the editor, posits that the purpose of communitarian jurisprudence is to "assess [] the theoretical underpinnings of the law as well as the manifestations of legal theory in legal practice." As reiterated in a later chapter, the communitarian agenda seeks to advance commonly held social values without unduly compromising individual rights. This purpose allegedly stems from "the observation that 'the law should take as its most central question what kind of community we should be.'." As one would assume from the tenor of this rather broad statement, the remainder of the reader purports to elucidate this presumption.

Part I titled Communitarian Jurisprudence contains the article "Communitarian Jurisprudence" by Philip Selznick. As its placement indicates, Selznick's article provides the background and sets the tone for the anthology as a whole. Selnick proclaims that, "[a] communitarian ethos calls for integration, but also demands protection of diversity and reconciliation of interests. . if community is to flourish, a robust conception of justice would be required."

The article provides a detailed discussion of the tenets of communitarian theory and jurisprudence - illustrating the theory's links to positivism, natural law doctrine, and the Anglo-American common law tradition. As Selznick asserts, the Anglo-American common law has been "a strong supplement to political democracy." However, the link between the common law and community "comes into sharp and controversial focus in constitutional adjudication." This is because, unlike with judge-made common law rules, a judicial interpretation of a constitution can only be changed through an amendment to the effected constitutional provision. Selnick concludes that courts build a bridge between law and the community through constitutional interpretation.

Part II, titled Civil Law, contains the following articles: "Tort Law and Communitarianism" by Robert Ackerman; "Communitarianism and Corporate Law" by Michael DeBow; and "Contractual Community" by Milton Regan, Jr. After an introduction to existing tort law, Ackerman describes a communitarian tort regime as one which "mold[s] liability rules that

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impose costs on those who are most responsible for harm, without coddling those who are in the best position to look out for themselves . [and] promote[s] rules that emphasize the need for people to take greater responsibility for their own well-being." Ackerman's primary premise is that communitarianism is a rationale for limiting the so-called largess of the tort system rather than its expansion - with the goal of encouraging individual responsibility.

Regan endeavors to connect communitarianism and the laws of domestic relations through the application of economic analysis. Thus, for example, marriage is viewed as "a rational joint venture that involves bargaining over and implicit exchange of tangible and intangible things of value." The relationship between such economic analysis of domestic relations law and the tenets and ideals of communitarianism remain somewhat veiled: the reader is left to draw their own conclusions.

DeBow's article is unlike the other articles in Part Two of the reader. Because its ideals run expressly opposite to the traditional purposes of corporations and corporate law DeBow argues strenuously that there is no effective application of communitarian tenets within the area of American corporate law. In the reviewer's opinion, the editor showed both courage and creativity by including an article in the reader that takes and supports this contrary theory.

Part III, titled Criminal Law, contains the following articles: "In Search of a Communitarian Justice Alternative" by Gordon Bazemore; and "Community Justice, Equal Justice, and Jury Nullification" by George Harris. Although Bazemore opines that scant effort has been made to apply a communitarian theory to the American criminal justice system, he contends that the policy shift evidenced during the 20th century towards the universal application of a punitive paradigm warrants ideological scrutiny. Bazemore describes the term community justice as "a preference for neighborhood-based, more accessible, and less formal justice services that, to the greatest extent possible, shift the locus of justice intervention to those most effected by crime." The concomitant intervention is titled a "restorative community-justice paradigm" which seeks to "repair [] harm and build [] community capacity to respond to crime and conflict, rather than administering punishment or treatment." Through case study analysis, in an attempt to go beyond the so-called punishment/treatment duality, Bazemore analyzes the application of the communitarian paradigm to the problem of youth crime and the juvenile justice system. Interestingly, Bazemore concedes that a major obstacle to the adoption of the communitarian paradigm is that the United States currently lacks a culture of the level of forgiveness necessary for the reintegration of offenders -- a cornerstone tenet of the doctrine.

Harris illustrates how the power of jury nullification is an example of the implementation of communitarian principles through the American criminal justice system. Although providing a more than adequate definition and history of the power, including some noteworthy cases, Harris delineates a clearer and more straightforward application of the paradigm than described in the previous chapters of the reader. My only criticism of the article is Harris' unfortunate use of negative, race-based imagery (the problem is compounded by its reiteration by the editor in the reader's Introduction) when discussing so-called

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factional nullification - when juries utilize nullification as a check on prosecutorial discretion.

Part IV, titled Constitutional Law, contains the following articles: "Dependence, Emancipation, and the Harm That Law May Reach" by JoEllen Lind; "America's Military" by Akhil Amar and Alan Hirsch; and "Federalism and the Problem of Political Subcommunities" by James Gardner. Lind discusses John Stuart Mill's harm principle and its inter-relatedness with individual rights and communitarian principles. In an in-depth review, she provides both internal and external critiques of the relational theories as well as substantive application to pornography and hate speech.

Amar and Hirsch detail how through the drafting of the U. S. Constitution - whether intended or unintended -- the Framers instilled communitarian theory in the governmental and individual psyche. To illustrate their thesis, the authors dissect the Constitution by individual article, amendment and, in places, by section - to provide vivid historical and modern examples. Although well written and more than aptly argued, I found the lack of either introduction or conclusion and the overall organization of the article rather curious - a result perhaps of the editorial process for inclusion in the reader.

Gardner begins his essay with a forthright conclusion: "[s]ince the dawn of the era of the modern nation-state, we [i.e. Americans] have tended to think of a nation as a 'community' - that is, as a 'people' united by some group of distinctive interests that sets it apart from people of other nations." Gardner then dispels this misperception by a critique of so-called subcommunities within the American socio-political system. He applies Lockean, German Romantic and Sociological models as well as communitarian theory to explicate state communities within the federalism canon.

In summary, this legal reader provides a broad and in-depth introduction to the history, theories, tenets and applications of communitarian jurisprudence. The reader's strength lies in the depth and scope of the articles. The individual articles are well written and the reader is well organized. Although I would have liked to read articles more clearly discussing the intersection of race and gender within the communitarian rubric, the volume works well as is. David Carney's volume is recommended for non-specialists in communitarian jurisprudence seeking to learn more. In addition, the reader may well either enhance the knowledge or stimulate the curiosity of proponents of this self-described eclectic movement.