THE GLOBAL DECLINE OF THE MANDATORY DEATH PENALTY: CONSTITUTIONAL JURISPRUDENCE AND LEGISLATIVE REFORM IN AFRICA, ASIA, AND THE CARIBBEAN

Vol. 25 No. 2 (February 2015) pp. 31-35

THE GLOBAL DECLINE OF THE MANDATORY DEATH PENALTY: CONSTITUTIONAL JURISPRUDENCE AND LEGISLATIVE REFORM IN AFRICA, ASIA, AND THE CARIBBEAN by Andrew Novak. Burlington, VT: Ashgate Publishing Company. 2014. 182 pp. Cloth $113.95. ISBN: 9781472423252.

Reviewed by David T. Johnson, Professor of Sociology, University of Hawaii at Manoa. Email: davidjoh@hawaii.edu.

The historical trajectory of capital punishment is similar in many countries. Capital punishment once was used almost everywhere, targeted many kinds of offenses and offenders, and enjoyed unquestioned legitimacy, but in recent decades this institution has been undergoing a gradual process of “modification, diminution, and abolition” (Garland 2005 p. 355). The common features of decline include a reduced range of capital offenses and eligible offenders; the abolition of aggravated death sentences; the removal of executions from the public square; the adoption of technologies designed to speed death and reduce pain at the time of execution; the emergence of normative discourses challenging capital punishment; the appearance of divisions in public opinion about the propriety of capital punishment; the development of formal procedures and safeguards for administering the capital sanction; a sharp decrease in the frequency of executions; and in many but not all societies, a movement to partial and then complete abolition (Garland 2005; see also Garland 2010 ch.3-4). As of the end of 2013, about 70 percent of the world’s countries had abolished capital punishment, and only one country in nine carried out executions in that year.

Andrew Novak’s fine book on the global decline of mandatory capital punishment describes and explains another dimension of the death penalty’s diminution. In Africa, Asia, the Caribbean, and countries of the West, the death penalty used to be mandatory for murder and other serious crimes, but this punishment has been in rapid retreat since the 1970s. Novak focuses on the constitutional jurisprudence and legislative reform of mandatory capital punishment in the United States (chapter 2), India and Bangladesh (chapter 3), the countries of the Commonwealth Caribbean (chapter 4), Malaysia and Singapore (chapter 5), and man of the countries in Sub-Saharan and Southern Africa (chapters 6 and 7). In all, he analyzes mandatory death penalties in about 30 countries, making this work as broad as it is deep. One theme running through the book is how historical similarities in law in the former British colonies enabled human rights litigation brought by a small number of lawyers (including Saul Lehrfreund, Parvais Jabbar, and the late Bernard Simons at the Death Penalty Project in London) to challenge mandatory death penalties in wide variety of jurisdictions.

JUDICIAL DECISION-MAKING IN A GLOBALIZED WORLD: A COMPARATIVE ANALYSIS OF THE CHANGING PRACTICES OF WESTERN HIGHEST COURTS

Vol. 25 No. 2 (February 2015) pp. 27-30

JUDICIAL DECISION-MAKING IN A GLOBALISED WORLD: A COMPARATIVE ANALYSIS OF THE CHANGING PRACTICES OF WESTERN HIGHEST COURTS by Elaine Mak. Oxford, UK and Portland, OR: Hart Publishing. 2013. 290 pp. $90.00. ISBN: 978-1849465540

Reviewed by Martin M. Shapiro (emeritus), University of California Berkeley Law.

For a number of reasons, the title of this book is somewhat misleading. First of all, it might well have been something like: THE GLOBALIZATION OF LAW: REFERENCES TO FOREIGN AND TRANSITIONAL LEGAL MATERIALS IN THE WORK OF DOMESTIC COURTS, for that is what the book is really about. It is a very meticulous and welcome, but specialized, addition to the globalization of law literature pioneered by the INDIANA JOURNAL OF GLOBAL LEGAL STUDIES.

Secondly, the use of the “judicial decision-making” wording in the title is likely to be particularly misleading for political scientists specializing in the study of law and courts. In the American political science community that wording is particularly associated with the legal realism, judicial behavior, political jurisprudence, law and society intellectual tradition. This book does show a movement away from the traditional European legal scholarship that deals exclusively with statutory and constitutional texts and published judicial decisions and toward more American practices. It supplements traditional study with some statistical analysis where the very limited data will support it and extensive interviewing of judges. There is, however, no politics in this book. The law is presented as an autonomous discourse pursued by judges employing a craftsmanship of disinterested legal reasoning.

For a very long time lawyers commenting on the work of judges have been able to speak of “judicial interpretation” of statutory and constitutional texts. Most American lawyer scholars and political scientists have now become comfortable speaking of “judicial policy making” and some even of “judicial law making.” European lawyers writing about courts still are very uncomfortable with “judicial law making” wording. Indeed I have recently had the experiences of having to remove my contribution to a European symposium because my use of that expression so disturbed the German law professor in charge of the volume. I may have missed it, but I do not believe there is a single reference to “judicial law making” in this volume, although there are brief accounts of “judicial discretion.”

FROM HOUSE OF LORDS TO SUPREME COURT, JUDGES, JURISTS AND THE PROCESS OF JUDGING

Vol. 25 No. 2 (February 2015) pp. 22-26

FROM HOUSE OF LORDS TO SUPREME COURT, JUDGES, JURISTS AND THE PROCESS OF JUDGING by James Lee (ed.). Oxford and Portland, OR: Hart Publishing. 2011. 310 pp. $119.99. ISBN: 978-1849460811

Reviewed by H.G. Callaway, Philadelphia, PA.

The papers collected in the present volume arose from a 2009 seminar organized by the Soci-ety of Legal Scholars and the University of Birmingham, and convened at the Law Society’s Hall in Bristol, England. The seminar, “Judges and Jurists: Reflections on the House of Lords,” commemorated the centenary of the Society; and it chiefly focused on the transition from the House of Lords, as the U.K.’s court of final appeals, to the prospects of the newly instituted United Kingdom Supreme Court. “The aim of the volume,” according to the book-jacket description, “is to reflect upon the jurisprudence of the House of Lords and to consider the prospects for judging in the new Supreme Court.” Given the aims of the Society of Legal Scholars, consid¬er¬able focus is placed on the relationship between the work of judges and that of scholars of law and jurisprudence. The book pervasively highlights the continuing voice of the scholars. Though their writings have no legal authority, the volume’s editor remarks in his Introduction that in 2009, “in six out of the seven final decisions of the House, reference was made to academic literature” (p. 2).

The scholarly character of the volume is emphasized by prefacing a “Table of Cases” (pp. xi-xxvi) and a “Table of Legislation” (pp. xxvii-xxxi) along with the list of contributors and acknowledgements at the front of the book. Thereafter follow the editor’s summary overview in the Introduction (pp. 1-8), a baker’s dozen of very substantial and detailed scholarly papers (pp. 9-302)—the contributors being chiefly professors of law at British universities—and an index.

Reflecting in part the wide historical appellate jurisdiction of the House of Lords, the Table of Cases cited in the volume ranges over judgments from the United Kingdom, Australia and Canada, other Commonwealth counties, the European Court of Human Rights, the European Union, India and others, including cases from the United States. For example, among U.S. cases, the reader will find one as early as MARBURY V. MADISON (1803), and as recent as CITIZENS UNITED V. FEDERAL ELECTION COMMISSION (2010). But only 5 U.S. cases are listed, compared with 29 from the European Union and 14 from the European Court of Human Rights—among hundreds. The overwhelm¬ing majority of the cases cited, as one might expect, arose in the courts of the U.K.

PARLIAMENT AND THE LAW

Vol. 25 No. 2 (February 2015) pp. 17-21

PARLIAMENT AND THE LAW by Alexander Horne, Gavin Drewry, and Dawn Oliver (eds). Oxford, UK and Portland, OR: Hart Publishing. 2013. 404 pp. Cloth $110.00. ISBN: 978-1-84946-295-2.

Reviewed by Gerard W. Horgan, Department of Political Science, St. Thomas University. Email: gehorgan@stu.ca.

It takes considerable confidence in their material for a book’s editors, as opposed to its publishers, to claim that their edited collection will become “an invaluable and unique resource for constitutional lawyers, political scientists and practitioners” (p. ix). In this case, however, it seems the editors’ confidence is not misplaced.

The essays contained in PARLIAMENT AND THE LAW were written and edited by members of the UK’s Study of Parliament Group, the membership of which includes parliamentary officials, political scientists, and constitutional lawyers. The resulting collaborative work seeks to examine “issues that are at the heart of the current concerns and debates about parliamentary and constitutional reform” (p. vii). In this the book succeeds, and anyone at all familiar with British political controversies over recent years – MPs’ expenses, phone hacking, the right of prisoners to vote – will find here discussions of how these controversies have affected, and been affected by, the relationship between Parliament and the courts in the UK.

The book is composed of thirteen chapters, arranged in three sections: Privilege and Conduct; Parliament - Internal Arrangements; and Rights, the Constitution and the Legal System. Chapter one introduces the first section and sets the historical context for the privileges of Parliament. Readers unfamiliar with the idiosyncrasies of British government will immediately be made aware of the recondite nature of the world they are about to enter, when informed that some of these privileges “rest solely on the law and custom of Parliament” (quoted at p. 3). As part of the opening rituals at the start of each parliament, the Speaker lays claim, on behalf of the members of the House of Commons, “by humble petition to Her Majesty, to all their ancient and undoubted rights and privileges, especially to freedom of speech in debate, to freedom from arrest, and to free access to Her Majesty whenever occasion shall arise, and that the most favourable construction shall be put upon all their proceedings” (p. 6). Why are privileges maintained on this ancient basis? Because once a privilege has been defined by statute, it becomes a matter that it is justiciable. This fact provides the underlying theme for the remainder of this section of the book: the overriding concern for parliamentarians over time has been to avoid any move that might allow the courts further entrée into their affairs. As recently as July 2013, a Joint Committee of Parliament rejected any comprehensive codification of privilege, concluding that legislation regarding privilege should only be used when absolutely necessary (p. 33).

ADVANCED INTRODUCTION TO COMPARATIVE CONSTITUTIONAL LAW

Vol. 25 No. 1 (January 2015) pp. 14-16

ADVANCED INTRODUCTION TO COMPARATIVE CONSTITUTIONAL LAW by Mark Tushnet. Northampton, MA: Edward Elgar. 2014. 133 pp. Paper $23.75. ISBN: 9781783473519.

Reviewed by Miguel Schor, Professor of Law, Drake University School of Law. Email: miguel.schor@drake.edu.

The field of comparative constitutional law began its modern renaissance with the publication of the American Constitution. Shortly after its publication, Edmund Burke and Thomas Paine engaged in a famous transatlantic contretemps over the virtues and vices of the new political practice of writing constitutions. The worldwide success of the American innovation of writing constitutions meant that debates over how best to design institutions would continue to have important theoretical and practical implications around the globe (Billias 2009). Scholarly interest in comparative constitutionalism grew sharply, though, in the wake of the global spread of democracy in the 1980s as old questions over institutional design gained new currency. The field of comparative constitutional law has become sufficiently mature that a survey of the scholarship is sorely needed. Mark Tushnet’s ADVANCED INTRODUCTION TO COMPARATIVE CONSTITUTIONAL LAW does an admirable job of filling this gap in the literature by critically reviewing the scholarship in the field and signaling areas of inquiry that the author believes have not been adequately addressed.

The book addresses three principal themes: (1) chapter 2 discusses the constituent power; (2) chapters 3 and 4 discuss the role of constitutional courts; and (3) chapter 5 discusses the structure of government. These themes do not simply reflect contemporary intellectual concerns. The path undertaken by the American revolutionaries in writing and adopting a constitution that purposefully instituted a government and inadvertently empowered courts to construe constitutions continues to deeply color how scholars conceptualize the problématique of constitutionalism.

Tushnet (pp. 39, 13) addresses “some of the dragons that inhabit the case of constitution-making” by examining why a “people” might come to believe that they are bound by a “collectively imagined project that no one holds.” The framers were preoccupied by the problem of how political actors became bound by “parchment barriers” (Levinson 2011), as are contemporary constitutional theorists who face the problem of constitutions drafted for polities whose democratic institutions may have shallow roots. The process followed by the American revolutionaries that ignored the people in drafting the Constitution is unacceptable in the contemporary world (Colón-Ríos 2012). The Icelandic experiment (p. 20), which crowd sourced the writing process, shows promise as a means of facilitating citizen attachment to a constitution even though the task of “integrating” these recommendations into a coherent document “requires a fair degree of technical skill.” Language provides another means to deepen citizen attachment to constitutions. The project of a constitution is typically captured in preambles and other precatory language. Tushnet provocatively argues (pp. 116-119) that the very length of modern constitutions might undermine their sociological effectiveness and that short or “thin” constitutions are needed that lay out “broad statements of principles” that citizens can read and adhere to.

Courts loom large in the work of contemporary comparative theorists and Tushnet reprises this scholarship in Chapters 3 and 4 by examining (a) why judicial review became established around the globe, (b) the institutional forms that judicial review takes, and (c) how courts go about the business of construing rights.

MODERN CHINESE REAL ESTATE LAW: PROPERTY DEVELOPMENT IN AN EVOLVING LEGAL SYSTEM

Vol. 25 No. 1 (January 2015) pp. 11-13

MODERN CHINESE REAL ESTATE LAW: PROPERTY DEVELOPMENT IN AN EVOLVING LEGAL SYSTEM by Gregory Stein. Surrey, England: Ashgate Publishing Limited, 2012. 211pp. Hardcover $118.79, ISBN: 978-0-7546-7868-7.

Reviewed by Melissa L. English, Assistant Professor of Business Law in the College of Business, Western Carolina University. Email: mlenglish@email.wcu.edu.

In 1988 China amended its Constitution to allow the creation of transferable land use rights in the real property the Chinese government had spent decades nationalizing. This constitutional change, along with a handful of rudimentary implementing statutes, effectively opened the real estate development market in China and that market has exploded since, with Shanghai and Beijing among the most rapidly developing real estate markets in this, or any other, time.

In MODERN CHINESE REAL ESTATE LAW: PROPERTY DEVELOPMENT IN AN EVOLVING LEGAL SYSTEM, Professor Gregory Stein, from the University of Tennessee College of Law, attempts to unravel the conundrum at the heart of this break-neck development: how and why is the real estate market developing so quickly in China, when the law that permits it is still largely undefined and unsettled? Pointing to law and development theory that seems to require well-settled law and strong institutions as a pre-requisite for such rapid development, Stein embraces a theory of Chinese “exceptionalism” – against the odds the Chinese real estate market has exploded without either well settled law or strong legal institutions.

Stein’s field work on both of these points is compelling. Over a series of four visits to China beginning in 2003, Stein conducted more than fifty interviews with legal and non-legal professionals working within the real estate and related markets in Beijing and Shanghai– from lawyers, judges, and professors to real estate developers, real estate agents and bankers. The author is clear that he is not producing a rigorous statistical analysis or definitive legal hornbook; rather, his data is intended to be a “field survey of how the participants in a major surging and surging industry operate against a background of legal and policy ambiguity.”

It is in service of this purpose that the book makes its strongest contribution. Stein provides a complete picture of the Chinese real estate market, from the ins and outs of the process of acquiring the right to use land, to the legal and financing institutions that permit development, to the functioning of various real estate and leasing markets. Stein reminds the reader of the fundamental role that property rights, and the form in which property is regulated, plays in the structure of related industries and institutions, and the distribution of capital in a society. While perhaps not the author’s purpose, the broad sweep of the Chinese real estate and development industries laid out in MODERN CHINESE REAL ESTATE would make the book equally at home in a comparative politics or finance course, or as a handbook for various business and legal practitioners.

AN INTRODUCTION TO COMPARATIVE LAW THEORY AND METHOD

Vol. 25 No. 1 (January 2015) pp. 8-10

AN INTRODUCTION TO COMPARATIVE LAW THEORY AND METHOD by Geoffrey Samuel. Oxford: Hart Publishing, 2014. 210 pp. Paper $34.00, ISBN: 978-1849466431.

Reviewed by Allyson C. Yankle, Department of Political Science, University of Connecticut. Email: allyson.yankle@uconn.edu.

The purpose of this book, INTRODUCTION TO COMPARATIVE LAW THEORY AND METHOD, is to provide a roadmap for students and scholars for the methodology of comparative law. The content is evidently drawn from the experience of the author, Geoffrey Samuel, teaching the issues of methodology and theory of comparative law. The book does not reach a singular conclusion about a method regarding how comparative law research should be conducted, but rather suggests a series of dichotomies that researchers should consider when developing a framework for comparative law.

The first issue for Samuel is defining comparative law, recognizing that any definition of the subject should highlight the dual nature of the subject as having an epistemological and practical function (p. 8). Because of this dual function, questions of comparative law can span across issues of content, methodology, epistemology, and theory (p. 9). These questions can be answered through a framework that Samuel details in the book, but he specifically focuses on the issues of methodology and epistemology. The book’s framework is organized around the understanding of what “comparison” means and what “law” means.

Samuel starts with the question of “What is comparison?” By understanding what is being compared, a researcher can best choose a model, based around a methodology, while also keeping in mind the epistemology and ontology behind the decision of what to compare. He identifies four distinct types of comparison: macro and micro comparisons, differential comparison, genealogical and analogical comparisons, and internal and external perspectives. Within each type of comparison, there is a broad discussion that draws upon secondary literature to demonstrate what the comparison, as well as types of questions, can best address. While each type of comparison is discussed separately, Samuel acknowledges that they may not necessarily arise in a hierarchical nature nor will every project address all four different types of comparison. By establishing and understanding what type of comparison a project explores, a researcher may choose a proper or compelling method that is best suited for the project.

CARCERAL SPACES: MOBILITY AND AGENCY IN IMPRISONMENT AND MIGRANT DETENTION

Vol. 25 No. 1 (January 2015) pp. 6-7

CARCERAL SPACES: MOBILITY AND AGENCY IN IMPRISONMENT AND MIGRANT DETENTION by Dominique Moran, Nick Gill and Deirdre Conlon (eds.). Vermont: Ashgate Publishing, 2013. 250 pp. Hardback $110.86, ISBN: 978-1409442684.

Reviewed by Dagmar Soennecken, School of Public Policy and Administration, York University, Toronto, Canada. E-mail: dsoennec@yorku.ca.

CARCERAL SPACES is the product of a series of themed conference panels of the Association of American Geographers and the Royal Geographical Society with the Institute of British Geographers. It brings together migration scholars interested in deportation and detention with those studying imprisonment to examine both of these ‘carceral spaces’ through a highly interdisciplinary and innovative lens, mainly drawing from criminology and human geography.

In the introduction, the editors argue that we should view imprisonment and migrant detention not as separate, if related, practices but in fact as overlapping systems of “holding human beings without consent” through “spatial practices of confinement” (p. 1) that require interrogation and dialogue. Many chapters draw from governmentality theory or Agamben’s work on camps and ‘bare life,’ further emphasizing a common theoretical orientation. Moreover, the volume is divided into two main sections – “mobility” and “space and agency.” Each part is also framed by a separate introduction, written by a leading scholar. These two introductions add further, persuasive evidence to the meta argument of the volume– namely that we should consider rather disparate phenomena (examples to follow shortly) as instances of similar, problematic issues - from the ‘tactics’ at play between the powerful and the weak (p. 128) to the perpetual struggle to maintain one’s identify and selfhood (p. 129) in these carceral spaces. In addition, the last chapter functions as a conclusion to the volume, although this is not clear enough from the formal organization in the table of contents (the concluding chapter looks like it is just another contribution to part II).

While I appreciated this extra effort at positioning the volume well from a theoretical perspective, it would have been much more helpful if the individual authors had also been asked to position their contributions in line with the interdisciplinary “pitch” championed in the linking chapters. This would have increased the cohesiveness of the volume substantially. As it stands, the fit of individual chapters to the central message is quite inconsistent, in some cases tenuous.

CONSTITUTIONALISING SECESSION

Vol. 25 No. 1 (January 2015) pp. 1-5

CONSTITUTIONALISING SECESSION by David Haljan. Oxford, UK: Hart Publishing. 2014. 448 pp. Hardcover $130.00. ISBN: 9781849464376.

Reviewed by Sanford Levinson, W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School, and Professor of Government, University of Texas at Austin. Email: slevinson@law.utexas.edu.

David Haljan’s CONSTITUTIONALISING SECESSION is surprisingly timely as well as intellectually engaging. The September 18, 2014 referendum in Scotland, in which 45% of the relevant electorate—about which more will be said below—voted to undo the 307-year-old Treaty of Union establishing the United Kingdom in favor of Scotland’s becoming an independent country, simply underscored the extent to which secession, an issue of great theoretical interest, is also of equally great practical importance throughout the world. The NEW YORK TIMES put it in a headline “From Kurdistan to Texas, Scots Spur Separationists” (Behnold 2014).

Crimea has now been absorbed into Russia after a formal referendum, whatever one thinks of its provenance, demonstrated overwhelming support to withdraw from Ukraine (to which the peninsula had been “given” by Nikita Khrushchev only in 1954) and return to its historic linkage with Russia. Perhaps more ominously, eastern Ukranians who also seem to identify more with Russia than with Ukraine, may continue to pose a threat to the maintenance of what remains of Ukraine after Crimean withdrawal. Quite obviously, if one looks westward to other parts of Eastern Europe, one sees two separate countries that had once been united in Czechoslovakia prior to a peaceful separation, not to mention the far bloodier dissolution of Yugoslavia, including, of course, the seemingly successful establishment of an independent Kosovo out of what had been Serbia. Not at all coincidentally, Spain, unlike, say, the United States, has resolutely refused to recognize the legitimacy of Kosovo, just as one might suspect that Spain would have been more resistant to welcoming an independent Scotland into the European Union even than the remaining truncated United Kingdom would have been. The reason, of course, is Catalonian nationalism, whose proponents had demanded an opportunity to vote in an independence referendum. They ultimately backed down, but the issue certainly is not going to go away. What is going on in the Middle East represents the dissolution of the World War I “settlement,” including the Picot-Sykes agreement establishing Iraq. It is hard to believe that an independent Kurdistan is not in our future, even if the borders of that country are obviously uncertain given the adamant opposition of Turkey and Iran to any Kurdish country that would threaten their own territorial integrity. (Syria might have similar objections, but it’s not clear if those objections would actually be operative in a way that those of Turkey and Iran would almost undoubtedly be.)

Moving far closer to home in North America, although the secession of Quebec seems now to be relatively unlikely, it would be foolhardy to express any strong predictions about Canada’s future, especially given the existence of a decision by the Canadian Supreme Court suggesting that Canada would be duty-bound to negotiate very seriously with a Quebec that had clearly expressed its desire to leave the country. Not surprisingly, Haljan spends many pages assessing the Canadian situation and, more particularly, what he clearly views as the dubious decision by the Court that can indeed be read as “constitutionalizing secession.” And one might even note that Reuters reported, just after the Scottish referendum, that almost a quarter of persons it polled within the United States expressed sympathy for the prospect of their state withdrawing from the Union established in 1787 (or 1776) and maintained, of course, only [*1] after the deaths of 750,000 persons between 1861-1865 (Reuters 2014). Interestingly enough, Haljan, whose range of references is certainly impressive, basically ignores the United States, perhaps because he accepts the scholarly consensus that secession is simply not permissible under the United States Constitution, even if the TIMES headline suggested the presence in Texas of would-be secessionists.