by Eduardo M. Peñalver and Sonia K. Katyal. New Haven: Yale University Press, 2009. 304pp. Paper. $45.00. ISBN: 9780300122954.
Reviewed by John Brigham, Department of Political Science, UMass, Amherst. Email: brigham [at] polsci.umass.edu.
Having just read a defense of a conservative foundation that pours millions into fighting unions and makes fun of attempts to broaden the ranks of those in power, the effort by Peñalver and Katyal to include outlaws among the law-makers is welcome and more strategic than surprising. We are a diverse and complex group.
I’m not sure if I’ve become jaded or simply less often surprised as the years have gone by. I was pleased with this book. Eager to review it and happy that it has been written. I like company in the world of off-center contributions to the theory of law. Sometimes it feels like a small world, though most of the time there are plenty of people who look beyond judges to understand more comprehensively where law comes from.
So, I’m not all that surprised by this book although it is offered as if we might or ought to be surprised. These are distinguished law faculty. They write with care and ample citation. They don’t only theorize, they give plenty of examples. They don’t just say, “crooks make law.” They are all over the topic and give new meaning to law breaking as law making.
Of course, law is being made when the horse thief is strung up or the ponzi schemer sent to prison for well beyond his natural life.
But it is the conception of all this as “in” or essential to the law of property that is a little unusual. And, in their conception it is those who flaunt the law as much as those who are caught or disobey civilly who contribute to law’s meaning. In this I am reminded of Aaron Lorenz’ treatment of lyrics in music as law (2007) and of various contributors to the law and society literature who saw law “all over.”
In addition, it is nice that Peñalver and Katyal write for such a broad audience. We are fortunate that this position on the social meaning of law has them for champions. I’m not sure they will make it more mainstream but they make it interesting, compelling and perhaps more comprehensible.
The book begins with civil rights protests that become documentary film and documentary film that is itself the stuff of appellate judgment. The sit-ins morph into digitized film distributed without adequate compensation. There are appellate judgments that affirm the meaning of protest and protests that give new meaning to appellate judgments.
Civil rights is the more familiar, the more fully developed area of law. Intellectual property is newer. Both are meant to be enhanced by the juxtaposition. I think this is very much [*596] the case. It’s a suggestive pairing. There is even a kind of social dynamic where the sensibilities of civil rights help to constitute the law of intellectual property here.
The book is comprehensive in its foundations. In that it has the feeling of a book that wants to develop a field. It begins with Saint Augustine and Thomas Aquinas and encompasses Martin Luther King and Ronald Dworkin. The authority of the big law schools is very much in evidence. Less so the Supreme Court, but it is there nonetheless.
Because this book is an inquiry into jurisprudential matters the angle on property is a bit oblique. It is not that one loses track of the attention to property but rather, one is brought back to the grounding of the book in property. The authors are very good at moving from one area to another and they add a great deal to our understanding of property, particularly its fuzzy, conflictual and very interesting edges. Like the intellectual property dimensions at the beginning of the book and 2006 predictions that internet file sharing would end the regime of copyright. (It hasn’t.)
One of the intellectual innovations in the book is the notion of “altlaws.” These are people who seem “outside” the law but for whom the law is unclear. That is action where it is difficult to say what the law is. The comparison is with the “expressive and acquisitive trajectories” that we are familiar with in the case of civil disobedience. Sometimes the term “altlaw” applies to file sharing. It often applies to interpretations of “fair use” in the academy. I like to think it applies to MY free use of copy-righted material in class.
The policy argument addresses the contributions of outlaws and altlaws and suggests that the value added to the law by lawbreakers should be considered when weighing sanctions and considering the need for changes in the law. The discussion of policy in the book is framed by a fear of “over deterrence.” The authors warn that some mechanical forms of deterrence, imagined and real, pose a threat to the historic evolution of the law and the ability of this complex social institution to take account of the need for change and to adjust.
The authors conclude with a discussion of equal marriage. This policy issue certainly has a “gap bridging” quality with regard to the policy framework explored in the book. Equal marriage is part civil right, part altlaw claim. And, though the marriage of same sex couples is not “altlaw” in the core sense, there is much that is interesting about the meaning of equal marriage in this regard. The movement is not, I believe, about not knowing the law. Rather the movement for equal marriage is based on reinterpreting the meaning of law in marriage and relationships in and outside the law.
One aspect of this is that by presenting gay life as for all intents and purposes amounting to marriage in many cases the campaign trades domesticity and traditional forms for legitimacy in the sense suggested by the altlaw framework. This is a potentially conservative framework. Yet this move is part of the message of the book and it is a dimension of equal marriage politics. Gay life is domesticated in [*597] order to fit into the law at the same time that it expands the reach of law. For some who oppose the normalization of gay life this is outrageous. For those who support the normalization of life for same sex couples it is quite exciting. Indeed, it seems like not a bad tradeoff.
But, for some, those who once celebrated the bohemian and critical dimensions of gay life, even perhaps appreciated the tensions around the closet that gave gay life unusual depth and special significance, celebration of marriage is a little disconcerting.
Lorenz, Aaron R. S. 2007. Lyrics and the Law: The Constitution of Law in Music. U.S.: Vandeplas Publishing.
© Copyright 2011 by the author, John Brigham.