by Bogdan Iancu (ed). Utrecht, The Netherlands : Eleven International Publishing, 2009. 250pp. Hardcover. €65.00/$104.00. ISBN: 9789077596654.
Reviewed by Dorit Rubinstein Reiss, UC Hastings College of the Law. Email: reissd [at] uchastings.edu.
This book offers us a collection of essays addressing the interface between law and politics. It does not aim at defining law and politics or setting a clear distinction between them. Instead, the essays focus on “problem areas” – how do judges avoid being perceived as just another political actor while still subjecting politicians to the rule of law; how do judges handle corruption of other government actors; judicial impact on politically charged questions. Editor Bogdan Iancu describes as the common ground of the authors, the assumption that “. . . a blurring of the classical lines of division between law and politics in paradigmatic constitutional systems (constitutionalism in transformation) also affects systems’ transition to liberal democracy (transitional constitutionalism). This appears to impact negatively on the ‘civilizational capacity’ of liberal democratic Western constitutionalism” (p.11). However, even if all the authors share this approach and were brought together by it, that is not reflected in their chapters, whose subject matter varies substantially; nor do all the articles share the same methodology.
The common threads through the chapters are first and foremost the acknowledgement that the law/politics distinction is extremely blurry in today’s world. Second, is the focus on the border between the two – i.e., on areas where judges have to handle politically sensitive questions, where the distinction is even fuzzier. Third, all the articles focus on constitutional judicial review and constitutionalism. I was a bit surprised by that. In Iancu’s introduction, he attributes part of the blurring to the “rise of the regulatory state” and suggests that the law/politics distinction is especially problematic for judicial review of administrative action, where “none of the classical approaches seems to suffice” (p.7). In light of this language and the book’s title (emphasizing public law), I expected to see at least some discussion of how the law/politics distinction operates in the administrative sphere, but none of the articles focused on that more than in passing, and Iancu does not explain the omission. I would have liked to see more explanation of the scope of the topic, and possibly a change in the title to clarify that the book centrally addresses constitutional issues.
One of the book’s main strengths is the wealth and depth of information it includes, as will be seen from the discussion of the articles below. It covers different jurisdictions and different times, with the introduction starting from the 15th century. The reader will learn much. On the other hand, the book is more suitable for an [*34] informed audience. It assumes a high level of pre-existing knowledge. This allows examination of issues in depth in a relatively short (just over 200 pages) volume with nine full-length essays and two short responses. The price of that brevity, however, is that this book as a whole (as opposed to specific articles, for example Grimm’s chapter) will not be suitable for use in an undergraduate setting without extensive guidance. It would have been more accessible if it had included more background, and if steps had been taken to make the reading easier (for example, translating Latin phrases into English).
The individual articles are so dramatically different in methodology and content that I find it necessary to say a few things about each and refrain from any attempt—which could only be highly contrived and artificial—to create a thread that would connect them all.
Bogdan Iancu’s introductory essay establishes the ground for the rest of the book. Iancu highlights the tension between law and politics, emphasizing the role of law in constraining arbitrary use of political power but also the need to check and prevent the danger of arbitrary judicial power. He addresses several possible ways to solve that problem, including institutional separation and procedures, concluding they are insufficient. He calls for a substantive, though fuzzy and hard to apply, distinction between what is appropriate for judges to do and what is appropriate to politicians. The chapter then provides the reader with an overview of the rest of the book.
Dieter Grimm’s chapter on constitutional courts sets the ground for the following essays with a very rich and thoughtful discussion of the reasons for constitutional judicial review and the concerns inherent to it. The explosion of judicial review is placed in the historical context of the post-totalitarian European regime. Grimm carefully analyzes issues of judicial appointment, the need and the danger for judicial independence, and the effect of constitutional judicial review. His piece does not break new ground, but the analysis is extremely clever and sophisticated. It is also well written. This is a great essay to use as an overview of the pitfalls and strengths of constitutional judicial review, suitable both to experienced scholars and students.
Armand de Mestral and Jan A. Winter address how the Supreme Court of Canada and the European Court of Justice have handled politically sensitive questions. Neither court explicitly acknowledges a “political question” doctrine, but both take steps to avoid stepping into what they consider the province of the political branches, while they still work to constrain those branches to follow the rule of law and protect rights. The two authors support their argument through a case analysis, focusing almost exclusively on what the courts said. I found the approach more formalistic than I was comfortable with. The authors take the courts’ words extremely seriously and do not provide real analysis of the contexts of the different cases and potential political explanations for the courts’ behavior. For example, when discussing the Supreme Court of Canada’s decisions on the question of whether politically sensitive matters have enough legal [*35] questions to make them appropriate for judicial resolution (e.g. pp.43-44), at least some consideration of whether the court was acting to enlarge its power seems appropriate. The authors do not completely ignore politics – for example, they acknowledge that the extensiveness of proportionality review by the European Court of Justice depends at least in part on the extent of discretion accorded the member state in a given area (more discretion in agriculture leads to more lenient review). But even that seems formalistic and not sufficiently attuned to the realities of power. A more sophisticated political analysis would have made the piece richer.
Christian Joerges’ article examines how the appellate panel of the World Trade Organization (WTO) handled two sensitive issues on which the laws of the EU and the United States diverge – the administration of growth hormones to cattle and genetically modified products. In both cases the WTO found EU practices to violate the treaty, but Joerges found the panel’s approach much better in the Hormones case, using a “conflict of law” approach that would respect different entities’ choices in respect to the content of law while still imposing sufficient harmony to allow the system to operate. It is an extremely interesting analysis, although I would have liked a little more development of the way a conflict of laws approach to transnational disputes achieves that goal in practice, and as András Sajó mentions in his response, a little more development of the differences between the WTO panel and a court and whether those differences should matter to the approach. Sajó also emphasizes the problematic clash of values inherent in the panel’s decision.
Roderick Macdonald and Thomas McMorrow’s article criticizes the concept of “reasonable accommodation” used by the courts of Canada to offer cultural and ethnic minorities exemptions from legal and administrative practices. Macdonald and McMorrow see “reasonable accommodation” as reflecting an ethnocentric approach that treats the elite’s preferences as the standard, and the accommodations given cultural minorities as favors done from a position of power. They see the liberal approach to cultural and ethnic diversity – the non-discrimination paradigm – as placing someone (the elite member) in the middle and comparing the treatment of everyone else to the treatment of “the chosen one.” This is highly problematic because it does not afford groups real, meaningful equality. They suggest, instead, a legal pluralism approach that avoids one-dimensional distinctions and sees all groups and systems as equal. They see the report of the Bouchard-Taylor commission, which recommended mostly non-legal, inclusive, locally sensitive solutions, as reflecting the right approach. It is a thought-provoking argument, and the premise of respecting diverse influences on culture and not being ethnothentric is extremely appealing, and the authors make a compelling case. However, in relation to their practical and normative conclusions, I had several concerns. First, the cultural relativist approach embedded in the legal pluralist paradigm has some normative implications the authors do not sufficiently discuss. The approach is relatively problem-free when the question is the freedom to exhibit religious symbols, but it raises concerns in relation to other practices. The authors do not claim that all cultural norms are [*36] legitimate, but they say that the problematic ones (e.g. female circumcision, polygamy, child brides, stoning, chopping off hands of thieves – p.100) are prohibited by Canadian criminal law. Would keeping these prohibitions fit into a real pluralist approach that sees the norms of each group as equal? And if not, are the authors comfortable allowing the practice? And how to set the line? What about more subtle forms of discrimination not covered by the criminal law, are they legitimate?
Further, I share Iancu’s concern (p.15) about whether the approach, as described by Macdonald and McMorrow, gives guidance to judges faced with claims of non-discrimination and requests for accommodation. Should they simply reject such claims out of hand? Send the plaintiffs to a non-legal solution? The reaction to the Bouchard-Taylor commission’s report, from which the politicians distanced themselves, may suggest that the approach, even if normatively desirable (of which I am not sure), is politically unappealing and hard to apply. Finally, what about cases of discrimination pure and simple – hate speech, or just preferential treatment? I would have liked to see more discussion of how the legal pluralist approach interacts with non-discrimination principles and how it would work in practice.
Bernd Rüthers’ article addresses the place of law and lawyers in situations of social upheaval, focusing on the extreme transformations Europe underwent in the 20th century. He emphasizes, as a case study, the changes of regime in Germany, and especially East Germany. He structures the article around twelve hypotheses, and his main argument is that lawyers are closely connected to power. In times of upheaval and change of regime, lawyers go through a process of selection and “change of guard.” They also serve to promote zealously the arguments of the new regime through various legal tools – and sometimes the same lawyers do that for radically different regimes. It is a very insightful discussion, although a different structure might better preserve the flow of the argument.
Alexander Somek’s article criticizes the adjudication (and the general system) of the European Union institution. He sees the European Union as hiding its democratic deficit and the lack of influence of its citizens through a combination of three processes. The first is idealization – reformulating, in idealized form, existing institutions, rather than really reforming them. The second is de-politicization, i.e. not providing the citizens with meaningful political choices and a real influence on decision making, reserving that to European institutions that are not elected – the Commission and the Council of Ministers. Finally, through economic due process the European Court of Justice interprets rights and the treaty to promote unification and free market ideas, often at the expense of values dear to the member states, for example worker solidarity and equality. He demonstrates how the court weakened protections of workers through its interpretation of the treaty in a way that disallowed restrictions on wages, if these were the result of collective bargaining rather than minimum wage laws. He sees the ECJ’s behavior as unjustifiably eroding state autonomy and important values. [*37]
The last two articles focus on the transition of post-communist system and the role of judges in that process.
Adam Czarnota examines the way post-Communist systems dealt with their past, and demonstrates that, aside from occasional lustration (barring former communists from power) and few trials of former communists, the past is mostly ignored. He explains this by the transformation process being double faceted. On one hand, the institutions were often radically changed. On the other, some accommodation was usually reached with the previous ruling party (which was not, after all, ousted by force, except in Romania), and its continuing position of power deters “rocking the boat” by taking meaningful steps to deal with the past. He provides many examples from several post-Communist systems to support his fascinating analysis.
Iancu closes the collection with an article that examines the problems of constitutionalism in Romania. He highlights two problems. First, he notes the shallowness of the constitutional process in Romania –driven more by the desire to join the European Union than by any deep commitment to principles. He demonstrates this by comparing the constitutional transformation since the 1990s with the constitutional transformation in the beginning of the 20th century, in which there was such commitment. Second, he addresses the inability to seriously overhaul he judicial system because of the lack of independence and the depth of the corruption in it. The article offers much detail and many insightful observations. It is not, however, easy to read, and some of the issues could be better developed. For example, I would have liked an explanation of why the court became so suddenly politically active. Iancu hints that the court was acting to protect elites by guaranteeing the existence of criminal sanctions against defamation, but does not explicitly say so and does not develop who it is that the court is protecting.
© Copyright 2010 by the author, Dorit Rubinstein Reiss.