Vol. 14 No. 5 (May 2004), pp.328-330
STUDIES IN LAW, POLITICS AND SOCIETY, Volume 29, by Austin Sarat and Patricia Ewick (eds.). New York: JAI Elsevier Science, 2003. 166pp. Hardbound. $90.00. €90.00. ISBN: 0-7623-1032-4.
Reviewed by Kate Greene, Department of Political Science, University of Southern Mississippi. Email: kate.greene@usm.edu
According to the publisher’s description, “[t]his volume of Studies in Law, Politics and Society presents a diverse array of articles by an interdisciplinary group of scholars… [whose] work spans the social sciences, humanities, and law, and examine law and culture, the complex interactions of law and policy, and the place of religious values in legal life.” The collection is indeed diverse, so diverse that there is no discernible overall theme beyond the broad claim that its articles present interdisciplinary discussions of law, politics and society. It is possible to see and to make some cursory connections among the articles, but it would be wrong to say that the pieces have any significant relationship to each other. It is also an uneven work, with some articles being of substantially higher quality than others.
The editors valiantly attempt to give this “diverse” volume some coherence by dividing it into three sections, “Law and Cultural Life,” “Law in Domains of Policy,” and “The Place of Religious Values in Legal Life.” The first section includes two articles, Debora Halbert’s “Theorizing the Public Domain: Copyright and the Development of a Cultural Commons,” and Lara D. Nielsen’s “The Law and the Anomaly of Performance: Baseball as Cultural Policy.” Halbert’s contemplations on theorizing the public domain as a means to address developing contemporary issues surrounding intellectual property in a technological age is by far the strongest article in the book. It is well-written and well-argued and addresses a current issue (I am listening to my legally downloaded Apple iTunes music library as I write this). Having never even thought about the public domain, I found the theoretical and historical introduction to the topic quite useful, and to create a good basis for a strong case for expansion of the public domain with an “energized public sphere and by extension a democratic system” (p.3). The second article, on the other hand, is probably the weakest in the collection. It is an attempt to explain the exemption of baseball from the Sherman Anti-Trust Act by the Supreme Court in 1922 by examining the corporate, artistic and popular cultural entertainment aspects of baseball, but it simply fails. Indeed, it is the first “So What?” article in the book.
The second section, “Law in Domains of Policy,” consists of three chapters dealing with capital punishment, welfare reform and prostitution, respectively. Judith Randle’s “Capital Punishment and Elite Politics: Dissensus and the Death Penalty in America” utilizes Teles’s theory of “dissensus politics” to argue that the continued use of capital punishment in the United States rests not on any public consensus, but on the political elites’ ability to control discourse about the issue. According to [*329] Randle, the public tend to hold moderate views on capital punishment, incorporating practical as well as moral and political values into their reasoning; while elites cling solely to moral and political arguments that require a particular “ideological purity” (p.70). She seems to conclude that this opinion context favors those seeking to retain the death penalty over those who would abolish it. This is a strong, well-written article which presents an interesting rhetorical analysis of the death penalty debate.
The second chapter in this section is Kevin Olson’s “Welfare, Democracy and the Reflexive Legitimacy of the Law,” an assessment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRA) which transformed welfare policy in the United States. Olson’s thesis is that a law should be judged within the structure of law itself. That is, if a law is to be considered legitimate in a liberal, democratic society, all citizens must have the ability to participate in its creation. Since political participation is linked to social, educational and economic status, a democratic system requires welfare in order to legitimate the entire legal system—i.e., all citizens must be able to participate, and welfare is essential to facilitate participation among the poor. Yet, as Olson argues, the PRA is illegitimate because its means-tests, time limits and work requirements do not encourage political engagement among the poor; rather it coerces them into an economic situation that actually discourages participation. This is a good article, but Olson’s discussion misses some sound theoretical foundations that would significantly improve the analysis. For example, it lacks a feminist analysis of responsibility rhetoric such as Baer’s OUR LIVES BEFORE THE LAW (1999) and Mink’s WELFARE’S END (2002). Indeed, it is interesting that it is still possible in legal studies to discuss welfare without reference to these significant feminist works.
The third article in this section, Maureen Norton-Hawk’s “Social Class, Drugs, Gender and the Limitations of the Law: Contrasting the Elite Prostitute with the Street Prostitute,” produced a second “So What?” response. It concludes that elite prostitutes use different drugs than street prostitutes and are less likely to encounter the criminal justice system. There is nothing new or interesting here.
The last section, “The Place of Religious Values in Legal Life,” includes only one article, “The Case for Insincerity,” by John M. Kang. This piece is not about the place of religious values in legal life as much as it is a case for insincerity in political discourse. While starting from the premise that liberal theory requires secular reasons for supporting legislation, Kang attempts to make the case that liberal politics may in fact require insincerity. Kang argues that insincerity may in fact diffuse “tense and volatile situations” and allows cooperation and coexistence among citizens with incompatible world views. His discussion of insincerity as a democratic value is unique and is a good contribution to the literature.
Drawing connections among these articles is actually a rather difficult task. The first two chapters share little more than a short discussion of copyright law and a focus on cultural productions. The two pieces that seem to intersect are [*330] Randle’s article on capital punishment and Kang’s chapter on insincerity. Unfortunately, however, Randle’s analysis in effect undercuts Kang’s central position. That is, while Kang claims that insincerity allows for discussions that might otherwise be impossible, Randle observes that abolitionists are insincere when they argue against capital punishment because it is procedurally racist, sexist and classist (since elite rhetoric requires ideological purity, abolitionists must not deviate from their moral stance), creating an opening for attack by the retentionists. Thus, insincerity may permit discussion, but it may also expose the insincere to criticism. The only other connection among the articles is that they all discuss law, politics and society.
The major issue for me about this collection, beyond the uneven quality of articles, is its intended audience. It would seem to have little attraction for any except those deeply engaged in critical legal theory. That said, I would still be uncertain in determining to whom to recommend this book. Its subject matter and methodologies are simply too diverse. I would be more inclined to recommend individual articles rather than the entire volume. It contains some interesting and unique analyses but is not a cohesive or thematic collection.
REFERENCES:
Baer, Judith A. 1999. OUR LIVES BEFORE THE LAW: CONSTRUCTING A FEMINIST JURISPRUDENCE. Princeton, NJ: Princeton University Press.
Mink, Gwendolyn. 2002. WELFARE’S END. Ithaca, NY: Cornell University Press.
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Copyright 2004 by the author, Kate Greene.