JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY by Austin Sarat and Thomas W. Kearns (Editors). Ann Arbor: The University of Michigan Press, 1996. 173 pp. Cloth $39.50.

Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University
 

The introduction to this collection of five essays identifies their shared purpose. The authors seek to "[embed] inquiry about justice in an examination of law's daily practices, its institutional arrangements, and its engagement with particular issues at particular moments in time" (p. 3.) If this description strikes the reader as extending to just about anything anyone wants to do, that impression is reinforced by the context from which this collection emerges. The seventh volume in the Amherst Series in Law, Jurisprudence, and Social Thought, it joins predecessors with titles like "Law's Violence," "The Fate of Law," and "Identities, Politics, and Rights." To describe this volume as "interdisciplinary," as the dust jacket does, is a considerable understatement: the collection includes more fields (nine) than authors and editors combined (seven.) None of the essays has been published elsewhere, nor did they emerge from a conference or panel. The topics addressed include police corruption, naturalization and marriage, pornography, judicial supremacy, and redressing injustice. Reading the essays confirms that their force is centrifugal rather than centripetal, a characteristic which Ira Strauber also found in his LPBR review of THE FATE OF LAW. This eclectic and diverse character represents both the strengths and weaknesses of the present volume.

As important as what the essays seek to accomplish is why this accomplishment is important. Why do we need examinations of concrete legal practices? The editors have an answer for this question, too. "From Plato to Derrida," discourse about law and justice has been conducted "in relentlessly abstract and general language," producing "elusive, if not illusory" notions of justice (p. 3). Well, yes, much ancient and modern jurisprudence has had this quality; the line from Plato to Derrida is a long one, including, but not limited to, contemporaries of both philosophers. But is this abstraction a universal or even general characteristic of legal philosophy? Today's theoretical "landscape" includes feminist jurisprudence, critical race theory, rational choice, and originalism in constitutional interpretation; the work of Martha Minow, Patricia Williams, Richard Posner, and Robert Bork comes to mind, to list only theorists whom these essays do not discuss. This collection rests on a premise which, if not false, is at best an incomplete and problematic construction of reality. But the essays so dubiously premised are, in general, worth reading.

The introduction's tendency toward the "straw person" technique of argument is not absent from the essays. In "Justice for All? Marriage and Deprivation of Citizenship in the United States," the historian Nancy Cott addresses "the partiality or falsity of any claim that marriage as an organization of 'private' life is exempt from any criteria of justice" (p. 79.) This attention to a claim that few are foolish enough to make these days does not prevent Cott from producing a valuable analysis of the interplay among patriarchy, racism, and xenophobia in immigration law. Joshua Cohen's "Freedom, Equality, Pornography" is less successful in overcoming the defects of its origins. The piece evolves from a reply to Catharine MacKinnon, whose critics tend to regard her as a "universal donor" of straw, into a refutation of the assertion that pornography's general function is to eroticize sexism: not all pornography, Cohen insists, does this. True; but he misses the difference between MacKinnon writing jurisprudence and MacKinnon drafting law. The model ordinance she wrote with Andrea Dworkin targets material which does degrade women.

Like Cohen, Frank Michelman addresses his essay, "Judicial Supremacy, the Concept of Law, and the Sanctity of Life," to a particular thesis: in his case, Ronald Dworkin's defense of judicial supremacy. But Michelman's rendering of what he criticizes is fair and accurate, if flippant: "We do have a significant lot of government by an independent judiciary," and it's "okay that we do" (p. 144.) Michelman's difficulty with this judicial government echoes Judge Gibson's dissent in EAKIN V. RAUB: judicial review becomes a substitute for "laying on the people at large their own responsibility for interpretive judgment" (p. 158.) The specific issue Michelman discusses in this passage is abortion, a context where responsibility for judgment is hard to distinguish from license to help make other people's lives miserable. Even If we resign ourselves to government by those with whom we disagree, a choice between a group of Antonin Scalias and a group of Rush Limbaughs (PACE Learned Hand) isn't even close. Nevertheless, Michelman makes a strong case for his position. It's not his fault that a generation of exposure to the activism-v.-restraint debate has left at least one debater with the cynical impression that to associate unrestrained and unaccountable power with the judiciary is to strain at gnats while swallowing camels.

Michael Taussig brings an anthropologist's perspective to the subject of police corruption. The prose style of "The Injustice of Policing: Prehistory and Rectitude" is off-putting: for example, "[Surely it is the living theater of kitsch where the mythology of the sacred, pure or evil, is suddenly evacuated from policing and the three stooges take over as in Kafka's trial in the always comic displacement of the tragic that is crime" (p. 34.) But buried in this word glop is a real contribution to scholarly discourse. Taussig redirects the debate, familiar in criminal justice, between explanations of police misconduct which stress individual psychopathology and those which emphasize professional socialization. He focuses instead on the contaminating effect of forced association with the contaminated. If Taussig's characterization of corruption as endemic in the clientele, structure and function of policing overdoes the cultural relativism and lets the police off too easily, he nevertheless provides a rough model for analyses of other professions.

Robert Gordon's "Undoing Historical Injustice" is the volume's most ambitious essay. Gordon addresses "legal responses of liberal polities to epochal injustices" (p. 35). He distinguishes between "agency" and "structural" approaches to injustice; the former emphasize "bad actors" or "bad groups," the latter "bad structures" (p. 36.) His analysis of the first and second American "Reconstructions" illuminates a consistent historical preference for agency over structure. In particular, "the framing of affirmative-action claims as corrective responses to undo, repair, or compensate for past discrimination helps maintain the perpetrator-victim (agency-based) focus of the public debate on affirmative action" (p. 55). This formulation is a sharp reverse image of Benjamin DeMott's critique of the pervasive notion that "friendship" is the cure for race antagonism; it also reveals yet another reason why the courts' rigidly even-handed approach to racial equality and insistence on framing questions of injustice in terms of intent constitute part of the problem, not part of the solution. Gordon asks "why must structural claims to be political acceptable adopt the vocabulary of legalism?" The converse question--"how and why did law embrace the vocabulary of agency?"--seems equally complex and important.

The articles in JUSTICE AND INJUSTICE IN LAW AND LEGAL THEORY comprise a fascinating and provocative hodgepodge, but a hodgepodge they remain. They vary so widely (even wildly) in subject, approach, style, and content that the reader remains unsure that they belong together. The purpose claimed for them by their editors does not lend coherence and cohesion. Each article, by itself, says something new about an important legal problem; this quality, however, does not a book make. This collection strikes the reviewer as destined for a long stay on library shelves.
 

EAKIN V. RAUB. 12 Sergeant & Rawle 330. (Pa. Sup. Ct. 1825.)

DeMott, Benjamin. THE TROUBLE WITH FRIENDSHIP: WHY AMERICANS CAN'T THINK STRAIGHT ABOUT RACE. New York: Atlantic Monthly Press, 1995.

Hand, Learned. THE BILL OF RIGHTS. New York: Atheneum, 1974.

Strauber, Ira. Review of THE FATE OF LAW by Austin Sarat and Thomas W. Kearns (Editors.) LAW AND POLITICS BOOK REVIEW, 1, #10 (December 1991), pp. 134-37.