by John Brigham. Philadelphia: Temple University Press, 2009. 240pp. Cloth. $54.50. ISBN: 9781592139644. Electronic Book. $54.50. ISBN: 9781592139668.
Reviewed by Joseph Reisert, Department of Government, Colby College. Email: jrreiser [at] colby.edu.
In MATERIAL LAW, John Brigham aims to illustrate and develop the “constitutive” conception of law he introduced in his earlier work, THE CONSTITUTION OF INTERESTS. In contrast to the “instrumental” conception of law, which, in Brigham’s characterization, views law as the outcome or product of political processes, the constitutive conception holds that the law is not only a consequence, but also a cause of political and social action and even of individual and collective self-understandings. In nine wide-ranging and eclectic chapters, Brigham illustrates the ways in which law is “part of the process by which people construct all sorts of things” (p.viii). Rather than articulate a linear and tightly unified argument seeking to define the constitutive conception, the individual chapters develop the main theme episodically and discursively, offering various examples of “places and things [that] are fashioned by law” (p.viii). Although the contrast Brigham seeks to develop, between instrumental and constitutive conceptions of law, is tantalizingly suggestive, it was also frustratingly elusive.
MATERIAL LAW is divided into three parts, of three chapters each, although the unifying themes linking the chapters grouped together were sometimes difficult to perceive. The first part, “Theorizing Material Life,” is said to describe “the ways material life has been theorized, or examined” (p.xiv). The first chapter, “The Map and the Territory,” describes the intellectual journey which led Brigham to adopt his constitutive theory of law. Chapter Two, “The Public in the Womb,” argues that abortion law has “changed the meaning of human life in the United States” (p.24). Justice Blackmun’s opinion in ROE v. WADE “gave the fetus official recognition in public policy and law,” Brigham observes, and in the wake of ROE, pro-life activists brought the unborn from obscurity to “political prominence” as they sought measures to protect fetal life (p.27-28). In “Habeas Corpus at the Temple,” the third chapter, Brigham “explores mortality and individuality on the Supreme Court and the significance that bodily images of the justices have for law in general and the death penalty in particular” (p.49); in short, the chapter narrates the changing of the Court’s membership during the fifteen years from FURMAN v. GEORIGA (1972) to MCCLESKEY v. KEMP (1987) and the concomitant changes in its death penalty jurisprudence.
The chapters comprising Part Two, “Constituting Legal Spaces,” explore a number of sites where law “constitutes the terrain by setting the stage for conflict, for politics, and for social life” (p.75). “Law’s Neighborhoods” [*104] juxtaposes Robert Ellickson’s study of conflict and dispute resolution among ranchers in Shasta County, California, ORDER WITHOUT LAW, with the author’s own study of political conflict and decision-making in the Lower East Side of New York. Ellickson had found that the ranchers settle many of their disputes informally, without recourse to formal, legal institutions such as courts and the police. Brigham endorses Ellickson’s sociological approach, but objects to the idea that “the law” exists only or even characteristically in legal rules and the actions of public officials. Where Ellickson finds a limited role for the institutions of the law, Brigham contends that the informal norms that constitute the ranchers’ community are themselves law. Turning to his own work in the Lower East Side, Brigham finds that “law constitutes forums for politics, legal forms shape political claims, and law influences political positions” (p.88). Thus, in Brigham’s account, squatters “explicitly and consciously redefine the meaning of eminent domain,” while middle class homeowners invoked park rules against camping in their effort to have the homeless removed from Tompkins Square Park (p.94). After insinuating that the squatters’ bourgeois opponents invoked the law to mask the self-interestedness of their behavior, Brigham disclaims any intention to “uncover a true politics behind the mask of the law” (p.94). He aims, more modestly, “to understand the ways in which law, in the form of parks department rules, community boards, forms of housing, and claims of right determines the sort of politics that is possible” (p.94). But this aim seems too modest, for how could political actors make claims without reference to positive law and abstract norms?
Chapter Five, “De Facto Discrimination and the Double Standard” offers a sharply critical indictment of the Supreme Court’s treatment of racial discrimination, culminating in the accusation that the Roberts Court has “placed the constitution firmly on the side of the white resistance” (p.103). In Chapter Six, Brigham examines a series of “occupied territories” in the United States: 1960’s-era Harlem, Indian reservations, the Commonwealth of Puerto Rico, and the federally administered Hispanic land grants in New Mexico. In each case, he finds a disjunction between the formal, institutional legal system and the lived practices of the “occupied” peoples.
In Part Three, “Materializing Law,” Brigham depicts the “material forms law takes.” This description aptly characterizes the topic of Chapter Seven, which links the changes in the architectural design of courthouses, away from the grand and monumental towards the efficient and bureaucratic, to changes in the institutional practice of the law. Modern courts, he argues, “minimize claims on justice in favor of improved process” (p.167). “In place of the lawgiver and the blindfolded maiden holding the scales, we have computer systems frameworks and video monitors,” writes Brigham; the result is an “environment dominated by technical expertise with few links to the normative practices of the culture generally” (p.167). Correlation is not causality, of course, but the linkage Brigham draws is suggestive nonetheless. By contrast, Chapter Eight discusses “the commodity form as law” (p.169), and Chapter Nine, [*105] globalization and its relationship to the study of law.
Brigham admirably aims to situate his contribution within a larger critical tradition in law and within the law and society movement in particular. To that end, he adverts frequently to the work of other scholars working within these traditions, and he discusses autobiographically the effect his encounter with these ideas had upon his own life and intellectual development. To a reader already deeply immersed in the law and society literature, the allusions and biographical references may provide clarity and serve to orient them in the intellectual terrain Brigham inhabits. To this reader, however, many of the life details were intrusive and distracting – do we really need to know about the “chicken salad plate” served at the 1995 annual meeting of the Law and Society Association? (p.196) – and the numerous allusions to others’ contributions, more confusing than clarifying.
Brigham repeatedly invokes “liberal legalism,” legal realism, and behavioralism in political science as his dialectical opposites, though he does not so much use these as terms of analysis but as epithets; the views he would reject are not so much sketched as gestured towards. Apparently, the legal liberal takes an abstract, universalistic picture of how society ought to be, and enacts legislation or wins favorable court rulings to re-shape society according to that image. By contrast, Brigham’s “constitutive work in socio-legal scholarship looks at the way relations among people are formed by or with reference to law” (p.17). Some of the individual chapters, most notably Chapters Four and Six, effectively illustrate ways in which law can be seen as entering into the self-definitions of individuals and communities.
Nevertheless, it was difficult to perceive the larger, conceptual lessons Brigham aimed to draw from these case studies, in part because Brigham offered neither a sustained articulation of his own outlook nor provided a detailed and sympathetic critique of his intellectual adversaries. More fundamentally, it is not clear that the contrast between constitutive and instrumental conceptions of law is likely to yield any radically new insights into the nature of law, because each perspective entails the other. Law can only work as an instrument for the shaping of a society to the extent that its normative directives constitute the people it governs. Likewise, norms that constitute regular patterns of behavior are only intelligible in light of the ends or purposes at which they aim; whether a constitutive norm has emerged from the ground up, out of the practice of a community, or has been enacted through the agency of a single lawgiver, action-guiding norms always entail a picture of how society ought to be.
Readers already well versed in the law and society literature will find in MATERIAL LAW some provocative observations and piquant theoretical claims; readers from outside the subfield looking for a first taste of the law and society literature would best seek their nourishment elsewhere. [*106]
Brigham, John. 1966. THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS. New York: New York University Press.
Ellickson, Robert. 1994. ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES. Cambridge: Harvard University Press.
FURMAN v. GEORGIA 408 U.S. 238 (1972).
MCCLESKEY v. KEMP 481 U.S. 279 (1987).
ROE v. WADE 410 U.S. 113 (1973).
© Copyright 2010 by the author, Joseph Reisert.