by Anthony Walsh and Craig Hemmens. New York: Oxford University Press, 2007. 416pp. Paper $39.95. ISBN: 9780195334081.
Reviewed by Andreas Broscheid, Department of Political Science, James Madison University. Email: broschax [at] jmu.edu.
This review is somewhat unusual for the LPBR – it is comparatively short and rather harsh. But LAW, JUSTICE, AND SOCIETY by Anthony Walsh and Craig Hemmens is somewhat unusual: a textbook from a reputable publisher that unfortunately has so many errors that instructors should take care when considering it for classroom use. That is a pity: We could use more overviews of law and justice from a multidisciplinary perspective that do not primarily target prelaw students. But the book under review here will not do, at least not in the current version: On too many important points it is either misleading or plain wrong; referencing at times falls short of expectations; and there are too many typos and other misprints. My first focus will be on explaining and exemplifying the weaknesses and errors of the book. Following this, I explain why I believe that these weaknesses and errors undermine the book’s use in the classroom. Finally, I note why I think that the book has potential and should be corrected, revised, and republished.
Some of the problematic points in the book under review are justifiable arguments that get simplified to such an extent that they become misleading. For example, discussing Aristotle’s view of law, Walsh and Hemmens state on page 12 that “Aristotle’s ideas were given impetus by British philosopher and lawyer Jeremy Bentham, who popularized the ‘greatest happiness for the greatest number’ principle in England in the early nineteenth century” – a fair point, considering the fact that happiness was a central concept for both Aristotle and the utilitarians, although it overlooks the differences between Aristotle and Bentham about the nature of happiness. However, 11 pages on, in the chapter summary, the authors compress this point into the following statement: “For Aristotle, the most important goal of the legislature was to provide for ‘the greatest happiness of the greatest number’ in society” (p.23). Suddenly, Aristotle becomes a utilitarian and the famous quote is attributed to him, a suggestion that will mislead many students.
Other examples of misleading passages deal with the role of juries, the ratification of the US Constitution, and the application of the Bill of Rights to the states. On page 97: “the common law system from the beginning has been one in which matters of law were the domain of the judge while matters of fact were the domain of juries.” According to Friedman’s HISTORY OF AMERICAN LAW (1985, at 155-156), the role of the jury as fact-finder evolved in America only in the early 19th century – not a direct contradiction to Walsh and Hemmens (it all depends on what “from the beginning” and “domain” mean), but students will take away the point that [*704] juries have always decided only the facts of a case – definitely a wrong conclusion. As to constitutional ratification, the authors state on page 61: “With the addition of these ten amendments [i.e. the Bill of Rights], the Constitution was ratified by the original thirteen states in 1791.” This gives the impression that the states put the constitutional ratification on hold until Congress had added the Bill of Rights, and I am sure that many students would adopt this erroneous conclusion. In Chapter 3, the authors seem to suggest that Frankfurter’s Fundamental Liberties approach to incorporation was part of, or an example of (that is not clear), the Total Incorporation Plus approach (p.76). This makes no sense. Is there a missing subsection heading, leading to the impression that the authors subsumed Fundamental Liberties under Total Incorporation Plus when in fact they had intended to place it in a separate subsection? The suspicion is supported by the fact that the heading formatting in Chapter 3 is inconsistent – maybe the entire formatting of the chapter is messed up, distorting what the authors intended to say. But on the other hand there is no “Fundamental Liberties” section in Table 3.1 (p.77), which summarizes the different incorporation theories.
More important are perhaps several clear-cut errors. On page 89: “All Supreme Court decisions are precedents that bind all lower federal and state courts. Only future Supreme Court decisions or a constitutional amendment can overturn a Supreme Court decision, although the Court usually respects its own precedents.” Of course, not all Supreme Court decisions bind all state courts – but that is a minor quibble compared to the implicit suggestion that all Supreme Court decisions test the constitutionality of laws. On page 346: The European Court of Human Rights “is the court of final appeals among the nations of the European Union.” Here the authors either confuse the European Court of Human Rights with the European Court of Justice, or the European Union with the Council of Europe.
I could name more examples. Part of the problem is suboptimal referencing. The statement about the European Court of Human Rights is not supported by any sources; had the authors cited an appropriate source, they would have probably caught the error. The statement about the role of judges and juries in the common law refers to an article by Barbara Shapiro (2002) on the relationship between the legal and scientific concepts of fact in the 17th century. While Shapiro does mention the roles of judges and juries in common law courts, this is only a minor issue that she addresses in a few sentences. Had the authors sought out a source that centrally deals with the history of juries, their summary probably would have been more precise. Overall, the use of references in the text is of mixed quality. Chapters that deal with the authors’ central areas of expertise are well sourced, while the chapters more removed from their research rely more on textbooks, popular sources, and occasionally on no source at all (see the European Court of Human Rights example, among others).
The most peculiar aspect of the book is the fairly large number of typos and printing errors. I already mentioned the inconsistent subsection heading formats [*705] in Chapter 3. Additionally, there is an unusually large number of errors that should have been caught by the copy editors, including typos that are normally corrected by spell-checking programs (for example, “onsent” instead of “consent”, p.64). Did Oxford University Press mistakenly print an early draft?
The question, of course, is whether these errors warrant the conclusion that the book should not be used in the classroom. After all, most textbooks contain minor errors or passages that can be misinterpreted; these may in fact provide an educational opportunity for students who are still developing their critical reading skills. Also, the occasional citation of popular sources may show students that not all material they deal with is difficult and dry to read.
To answer this question, I think that the combination of errors and weaknesses is crucial. First, a textbook has to have credibility for students to read it. An occasional error does not destroy this credibility, but a combination of errors, typos, and misprints undermines it: Students will stop reading the text. Second, a textbook should provide students with a model of how they can use and document sources and how they can summarize their own research. This involves questions about what constitutes credible sources in the social sciences, what facts have to be supported by references, and what facts can be assumed to be common knowledge. Several of the chapters in the Walsh and Hemmens book provide guidance that is not helpful to students in this regard. Third, I require my students to spell-check and proofread their writing assignments; books that we require them to read should be relatively free of spelling and grammatical errors.
As I note above, all of this is a pity, because the text is promising: The overall framework used by the authors – law as part of social control institutions and agent in the process of social change – is very useful to introduce non-prelaw students to the study of law. The book provides more detailed discussions of criminal law, juvenile justice, different legal systems, and women and the law (the latter contributed by Mary K. Stohr) than many judicial process textbooks. Finally, the writing is generally brisk and accessible, and the price of the book is lower than that of comparable texts. As a result, I can only encourage the authors and the publisher to revise the text and publish a cleaned-up version.
Friedman, Lawrence M. 1985. A HISTORY OF AMERICAN LAW. 2nd ed. New York: Simon and Schuster.
Shapiro, Barbara J. 2002. Testimony in Seventeenth-Century English Natural Philosophy: Legal Origins and Early Development. 33 STUDIES IN HISTORY AND PHILOSOPHY OF SCIENCE 243-263.
© Copyright 2008 by the author, Andreas Broscheid.