Vol. 13 No. 2 (February 2003)

Emblems of Pluralism: Cultural Differences and the State by Carol Weisbrod. Princeton: Princeton University Press, 2003. 232 pp. Cloth $45.00. ISBN: 0-691-08924-8. Paper $17.95. ISBN: 0-691-08925-6.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University. Email: kewhitt@princeton.edu .

This is the first entry in the new Cultural Lives of the Law series published by Princeton University Press and edited by Austin Sarat. Sarat is apparently an indefatigable advocate for and shepherd of cultural approaches to the study of the law, and this new book by Carol Weisbrod would seem to mark the successful launch of yet another book series under his direction.

Carol Weisbrod is the Ellen Ash Peters Professor of Law at the University of Connecticut and an expert in family law. She is also a veteran of a Sarat-edited series, having previously published Butterfly, the Bride in the Law, Meaning, and Violence series at the University of Michigan Press. EMBLEMS OF PLURALISM is based in part on articles previously published in various law reviews. The book consists of ten brief chapters, organized in two equal parts. The chapters explore some common themes, but each is essentially a stand-alone essay.

As Weisbrod aptly introduces the project, “This book consists of essays on the subjects of individuals, groups, and the state, focusing on the state’s response to cultural difference, a response that often takes the form of law” (p.1). It does so primarily through the consideration of episodes of intergroup conflict and negotiation in American history. The first part of the book focuses more on “state-centered hierarchical versions of the relationship between groups and the state” (p.7). This gives particular attention to federalism, both as a model for organizing center-periphery relations and as a particular legal structure. The second part of the book is oriented toward “a more horizontal relation between groups and the state, one in which groups are accorded more recognition and more autonomy but in which the state still has a role” (p.7). Both of these two models and normative ideals of pluralism have found some support in American traditions.

The first chapter discusses the 1824-1825 visit to America by Robert Owen, the utopian reformer and philanthropist. At the center of Weisbrod’s essay is the enthusiastic reception Owen received in the United States. As the historian Arthur Bestor has detailed, Owens was received by such luminaries as John Quincy Adams, James Monroe, John C. Calhoun, James Madison, and Thomas Jefferson. Owens was invited to deliver two addresses in the House chamber in Congress, where he announced his recent establishment of New Harmony on the border of Illinois and Indiana. He envisioned such communities multiplying and ultimately “standing in the same relation to their respective State Governments, that the States do now to the General Government” (p.27). Weisbrod observes, however, that Owen’s vision was communitarian but not particularly pluralistic, and that American federalists were ultimately more concerned with protecting and grappling with diversity than was Owen.

The second chapter extends the consideration of Owen with a discussion of some of his potential and actual interlocutors, including Calhoun, various New England individualists, and the Chickasaw and Choctaw Indian tribes, all of whom were more concerned with minorities and heterogeneity than was Owen. Quoting A.V. Dicey, Weisbrod observes that “federalism requires a special state of mind on the part of the inhabitants. ‘They must desire union, and must not desire unity’” (p.39). This ambivalent embrace of union can take place at multiple conflicting levels, from the individual to the state to the tribe to the “private” association.

Chapter Three considers the interactions of organized religion and the state, giving particular attention to the difficult relationship between the Church of Jesus Christ of Latter-day Saints (the Mormons) and the state and federal governments of the United States. Weisbrod distinguishes here between two kinds of responses from religious groups to the modern secular state, a strategy of attempting to gain influence over or co-opt the state versus a strategy of standing apart from the state and operating somewhat autonomously. The early Mormon history can be understood as one of attempted escape, which is analogous to the Pilgrims, as one Church representative recently testified before Congress. Since the settlement of Utah, the Mormons have employed a complicated mixture incorporating strategies of engagement and disengagement.

Chapter Four turns to the case of the Amish. Providing a brief background on Amish faith and practices, this chapter focuses on “Another Yoder Case” that highlights a different aspect of the potential tension between the state and the religion than does the better known 1972 U.S. Supreme Court decision in WISCONSIN v. YODER. The 1947 Ohio case of YODER v. HELMUTH is representative of a number of lawsuits over the Amish practice of shunning. In this case, Andrew Yoder sought an injunction and damages against his former church and its members, whose comprehensive boycott of Yoder had disrupted his business and familial relationships. Yoder won his suit, but other plaintiffs have been less successful in asserting individualist claims against strongly communal religions.

Chapter Five considers religious group identity in various contexts, from the evolving corporatism of the Mennonites in Germany, to the pariah status of Jews in czarist Russia, to the question of assimilation for Jewish immigrants in the United States. Here Weisbrod makes effective use not only of histories and legal cases but also of writings by such authors as Hilaire Belloc and Bernard Malamud to illuminate the cultural, legal and political dimensions of the “state-group problem.”

The sixth chapter considers the approaches of several “theoreticians” to the problems of pluralism and sovereignty. This chapter gives particular attention to the competing early twentieth-century perspectives of the German jurist Carl Schmitt, the Dutch anarchist Abraham Kuyper, and the American Jewish activist Alexander Pekelis.

The seventh chapter focuses on the “minority treaties” under the League of Nations, which were an early effort to secure international legal protections for minority populations within nation states. Weisbrod is less interested here in examining the perceived failure of these treaties to accomplish their aims than in unpacking the conceptual structure underlying these treaties and their approach to pluralism and minorities.

The eighth chapter looks at the potential conflicts between religion and the state in the context of primary and secondary education. Here Weisbrod briefly sets up three perspectives on the problem from former UNESCO director Julian Huxley, libertarian economist Ludwig von Mises, and Hannah Arendt (commenting on the Little Rock desegregation crisis). She concludes by placing the 1925 Supreme Court case of Pierce v. Society of Sisters against the treatment of education in the minority treaties of the same period.

The ninth chapter introduces several historical episodes of conflict over the authority and policy of the state in regards to children and the claims of religion. The difficulties and diverse approaches to this problem are highlighted through the consideration of a variety of child custody disputes ranging from the relatively exotic (e.g., removal of baptized children from Jewish homes, the potential reunification of adopted Dutch Jewish “orphans” and their Holocaust-surviving parents) to the relatively familiar (e.g., religious matching policies in adoption).

The final chapter considers the significance of the “multiplicity of the self” for pluralist theory. The diversity of roles assumed by individuals and the associated complexity of their self-identity disorders tries to make space within the polity for groups and the potentially conflicting demands on their members.

The chapters in EMBLEMS OF PLURALISM take more of the form of meditative essays sparked by the encounter with some particular case or fact than of systematic theoretical arguments or sustained empirical examinations. Weisbrod concludes one chapter thusly: “It is not a clear story either of the triumph of group interest or of state hierarchy. It is a story of interactions and interpretations” (p.45). This could be said of the book as a whole. It lays out stories of interactions and interpretations. In this rich and wide-ranging book the reader is likely to encounter some stories that are thought-provoking, some that were previously unfamiliar, and some that put old disputes in a new light.

CASE REFERENCES

Pierce v. Society of Sisters, 268 US 510 (1925).

WISCONSIN v. YODER, 406 US 208 (1972).

YODER v. HELMUTH, No. 35747 (Ohio C.P. Wayne County Nov. 7, 1947).

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Copyright 2003 by the author, Keith E. Whittington.