THE RULE OF LAWS: A 4,000-YEAR QUEST TO ORDER THE WORLD

Vol. 34 No. 03 (May 2024) pp. 26-30

THE RULE OF LAWS: A 4,000-YEAR QUEST TO ORDER THE WORLD, Fernanda Pirie. New York: Basic Books, 2021. 570pp. Cloth $35.00. ISBN: 9781541617940. Ebook $19.99. ISBN 9781541617957.

Reviewed by Brian Z. Tamanaha. John S. Lehmann University Professor, Washington University in St. Louis. Email: btamanaha@wustl.edu.

The Rule of Laws is an impressive achievement. Oxford anthropology Professor Fernanda Pirie traces the historical trajectory of a number of great legal traditions of the world (mainly Mesopotamian law, Hindu law, Chinese law, Roman law, Jewish law, Islamic law, Civil law, Common law, and international law), while, along the way, providing detailed close-ups of many particular manifestations of law, including Irish law, Icelandic law, colonial law, Tibetan law, and more. Written in lively prose, Pirie treats readers to an unmatched historical tour of law around the globe over the past four millennia, drawing on a broad range of studies by historians, anthropologists, legal scholars, religious scholars, and other fields. No other work of world history covers law with such scope and depth. These qualities make The Rule of Law a commendable work of popular history that many readers will find informative and well-worth reading.

What is a terrific book for a popular audience, however, can be problematic for an academic audience. Popular audiences seek informative, entertaining, and readable treatments of a given subject. Academics demand that concepts be carefully defined and consistently applied, that empirical claims be backed by evidence, and that complex matters be treated with nuance. These respective objectives can be reconciled, but sometimes they clash. In several critical respects, it appears (to me) that academic concerns gave way to the demands of popular consumption.

The book is presented as a history of “law” and of “the rule of law.” In the Introduction, Pirie declares, “The rule of law [emphasis added] has a history, and we need to understand that history if we are to appreciate what law is [emphasis added], what it does, and how it can rule our world for better, as well as for worse” (p. 14). Her exploration purports to show that “law” and “the rule of law” emerged together in the distant past, gradually ascending and spreading over 4,000 years of human history. Although they coincide, law and the rule of law are not the same (Pirie emphasizes that China has had law for over two millennia, but not the rule of law). Thus, it is essential to understand each notion separately as well as how they relate to one another.

Scholars have long debated the meaning of “law” and have long debated the meaning of “the rule of law.” Pirie eschews these debates, giving readers no hint that each notion is the source of endless scholarly disagreement. Avoidance of theoretical complexity is a defensible strategy for a popular book,

THE EU AND CONSTITUTIONAL TIME: THE SIGNIFICANCE OF TIME IN CONSTITUTIONAL CHANGE

Vol. 34 No. 03 (May 2024) pp. 23-25

THE EU AND CONSTITUTIONAL TIME: THE SIGNIFICANCE OF TIME IN CONSTITUTIONAL CHANGE, Massimo Fichera. Edward Elgar Publishing, 2023. pp. 180. Cloth $115.00. ISBN: 9781789908992.

Reviewed by Nathan Griffith. Department of Political Science. Belmont University. Email: Nathan.Griffith@belmont.edu.

The EU and Constitutional Time is a normative and descriptive work, which is not a particularly felicitous combination. The book also suffers from a lack of clarity in organization and sometimes in substance, which makes it difficult to report on what exactly its thesis is, or how well the work supports it. This is especially problematic as normative rather than causal theory, since it makes it difficult to assess the reasoning (rather than evidence) that should support this vision of what should be over others.

The third chapter provides an excellent example to highlight both some of the excellent descriptive work and the visible seams in the organization. The title of the chapter is “The Rule of Law and Populism.” The first section of the chapter is “Recent Case Law on the Rule of Law/Democratic Backsliding and Comparison with the US Nullification Doctrine.” The six pages of that section give a clear, concise, and insightful account of the nullification dispute, from the Virginia and Kentucky Resolutions to Calhoun and Webster. Yet there is no definition of democratic backsliding, nor even an explicit use of the term until the penultimate sentence. There is no comparison of that constitutional debate (or even dispute) with recent EU case law or even recent events in the EU. Instead, the penultimate paragraph of the chapter begins with: “To a limited extent…some parallels can be drawn between the nullification crisis and the current state of affairs in the EU—as seen in Chapter 2” (p. 55). No parallels follow. The reference to the previous chapter does not help; that chapter was an abstract, theoretical discussion of how constitutions change through discursive constituent power. Nor is there a discussion of recent case law—though the section references cases involving Hungary and Poland, even the names of the cases appear only in the footnotes, and there is no further discussion of them or how they develop or illuminate case law.

The next section of the chapter is a discussion of populism. It is again in turns enlightening and disjointed or ineffective. The author presents a clear and concise summary of the critiques populism tends to make of liberal democracy, and relays (from Benjamin Arditi) perhaps the best metaphor for the role of populism in democracy, that of a drunken party guest who offends through both lack of manners and willingness to say what no one else will. But the author then repeats three more lists that mostly echo the first, without discussing how they relate or differ.

He claims that “none of the main tenets of populism are necessarily in contradiction with EU constitutionalism as such,” (p. 58) when the tenets involve the will of the people, where people is restricted to “authentic” people, whose sovereignty should not be circumscribed or circumvented. This rather stretches the meaning

THE GUN DILEMMA: HOW HISTORY IS AGAINST EXPANDED GUN RIGHTS

Vol. 34 No. 03 (May 2024) pp. 18-22

THE GUN DILEMMA: HOW HISTORY IS AGAINST EXPANDED GUN RIGHTS, Robert J. Spitzer. New York, NY: Oxford University Press, 2022. 200 pp. Hardcover. $32.99. ISBN: 978-0197643747.

Reviewed by Bruce Peabody, Department of Social Sciences and History, Fairleigh Dickinson University. Email: bpeabody@fdu.edu.

Robert Spitzer’s meticulously researched and engaging new book argues that many of today’s judges and Second Amendment activists have weaponized history. They deploy crabbed and incomplete accounts of our past to make the case that most gun laws depart from our civil liberties traditions, and are the innovative “product of modern American society” (p. 76). In six pithy chapters, Spitzer shows that the “opposite is true” (p. 76). From colonial times to the present, federal and state gun regulations emerged whenever new weapons or technology posed threats to public safety. Legislation restricting firearms is, therefore, popular, recurring, deeply rooted, and “as old as the country” (p. 19).

In Chapter One, the author makes the preliminary case that American history is replete with ongoing and substantively-varied gun regulations. In recent years, however, a new generation of ideologically-driven lawyers and judges have ignored this record and warped history to expand gun rights. Here Spitzer distinguishes “Gun Rights 1.0” (relatively modest efforts to establish an “individual right of citizens to own handguns for personal self-protection in the home”) from today’s “Gun Rights 2.0” (based on aggressive readings of the Second Amendment that challenge a wide range of existing gun laws and upset an established “equilibrium” between gun rights and safety)(pp. 2-3).

At the heart of Gun Rights 2.0 is the constitutional theory of originalism, which aspires to filter out judges’ “contemporary values and preferences” by identifying what the constitutional text meant at the time it was written. In the context of the Second Amendment, this entails “turning the clock back to an imaginary past” in which there were few legal gun restrictions and the individual right to bear arms was purportedly placed in an “exalted position” (p. 22). Spitzer identifies a number of “terminal flaws” (p. 22) associated with originalism, especially its reliance on “bad” history to cloak an ideological and “ends oriented” conservative jurisprudence (p. 20). Contrary to the claims of its adherents, originalism does not discipline its practitioners or constrain their activism, that is, their willingness to overturn existing legislation and disrupt established case law.

So far, these points will be mostly familiar to students of constitutional law and history. But the rest of The Gun Dilemma digs deeper,

RATIONING THE CONSTITUTION: HOW JUDICIAL CAPACITY SHAPES SUPREME COURT DECISION-MAKING

Vol. 34 No. 02 (March 2024) pp. 15-17

RATIONING THE CONSTITUTION: HOW JUDICIAL CAPACITY SHAPES SUPREME COURT DECISION-MAKING,Andrew Coan. Cambridge: Harvard University Press, 2019. pp. 265. Hardback $43.00. ISBN: 9780674986954.

Reviewed by Rachael Houston. Department of Political Science, Texas Christian University. Email: r.houston@tcu.edu.

In my undergraduate courses on Supreme Court judicial decision-making, I guide students through an in-depth exploration of the evolution of justices’ decision-making behavior. This educational journey commences with an introduction to the legal model, advances into the intricacies of the attitudinal model, and culminates with an in-depth examination of the strategic model. As we explore the strategic model, I underscore the pivotal role of external constraints, including the influence of public opinion and the pressures exerted by the Executive and Congress. I also shed light on internal constraints, illuminating the imperative for justices to secure support from their colleagues within the Court.

Andrew Coan's book smoothly becomes part of this academic exploration, intricately aligning with internal constraints, and simultaneously providing a constructive critique of our existing understanding of the strategic model. Coan introduces an innovative concept, “judicial capacity,” which highlights another layer of constraint that significantly influences how justices make decisions, thus shaping the outcomes of Court rulings. For undergraduate students, Coan’s book serves as an indispensable guide, presenting them with insightful case study scenarios, lucid explanations of judicial behavior models, historical and constitutional context, and real-world implications related to the concept of judicial capacity. It equips them with the essential tools to comprehend the motivations driving justices’ decision-making processes.

THE IMAGINED JUROR: HOW HYPOTHETICAL JURIES INFLUENCE FEDERAL PROSECUTORS

Vol. 34 No. 02 (March 2024) pp. 12-14

THE IMAGINED JUROR: HOW HYPOTHETICAL JURIES INFLUENCE FEDERAL PROSECUTORS, Anna Offitt. New York: New York University Press, 2022. 192pp. Cloth $89.00. ISBN: 978-1-4798-0853-3. Paper $30.00. ISBN: 978-1-4798-0854-0.

Reviewed by Anya Bernstein. University of Connecticut School of Law. Email: anya.bernstein@uconn.edu.

The right to a jury is enshrined in the United States Constitution, but these days juries are famously hard to find. A tiny fraction of lawsuits, whether civil or criminal, involve an actual jury (p. 28). Yet the idea of the jury continues to influence how lawsuits—even those that never get to a jury—proceed. Some of that influence is structural. For instance, a party seeking summary judgment in a civil lawsuit appeals to the abstract notion of a hypothetical jury: if a judge decides that no reasonable jury could find for the party’s adversary, there’s no point empaneling a jury at all. In that situation, the importance of the non-existent jury is, in some sense, written into legal standards, visible for all to see. But Anna Offit’s fascinating new study reveals that the idea of the jury plays an even more pervasive, less visible, role.

Offit, who is trained in both law and anthropology, conducted a long-term ethnography of federal prosecutors, putting in years as a participant observer in a U.S. Attorney’s office. Being socially embedded on an ongoing basis allowed her to observe the profession’s everyday: not just things she or her subjects already found notable, but the mundane interactions, the routine preparations, and the offhand comments that contribute to the flow of life on the job. Much of the evidence Offit brings to bear quotes from her many interviews and conversations, which clearly benefited from the familiarity she developed with her subjects and the trust they placed in her. Ethnography, as understood in anthropology, goes beyond short interactions into longer-term ongoing connections, creating social ties in which any given interview or conversation is embedded. The researcher continuously interacts with research subjects over time, taking part in their activities together. This double consciousness—as an insider participant but also as an outsider observer—can yield insights that are hard to achieve in other ways. It can give the researcher an intuitive, felt understanding of the logic behind her subjects’ practices, helping her see how particular choices or peculiar views make sense to those who enact them. Additionally, it can help the researcher notice patterns, practices, and conflicts that fly under even participants’ own radars (pp. 9-14). Offit returns throughout the book to discuss the ethnographic method and consider both its benefits and its limitations.