Shapiro, Martin. Courts

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Review Author(s): Martin Shapiro Review by: Martin Shapiro Source: The American Political Science Review, Vol. 91, No. 1 (Mar., 1997), pp. 216-217Published by: American Political Science AssociationStable URL: http://www.jstor.org/stable/2952320Accessed: 20-08-2015 17:34 UTC

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Book Reviews: COMPARATIVE POLITICS March 1997

the extent to which core constitutional norms may be deemed universal, and evaluating the potential for transplantations of constitutional arrangements from one country to another and for their successful spread beyond the nation-state.

Constitutional Policy and Change in Europe, a collection of essays that originated at an international conference held at the Center for European Studies, Nuffield College, Oxford, is a welcome addition to the vast recent literature on contemporary constitutional developments and trends. Other collec- tions also combine contributions by prominent legal and political theorists, and other works focus more thoroughly on broad theoretical issues or detailed historical narratives. The present collection nevertheless deserves special praise for the sharpness with which it zeroes in on the pressing and troubling constitutional issues of the day. By concentrating on the influence of Western European constitutional practices on Eastern and Central Europe, and on often less than apparent parallels and points of contact between Eastern and Western Europe, the collection affords a generally crisp insight into the evolution and adaptability of constitutional concepts and practices as well as into their suitability for purposes of supranational, national, and regional integration.

The contributions in the collection variously address changes in the conception of constitutionalism, the evolution of different constitutional systems or traditions, the major constitutional trends and shifts in significant Western and Eastern European countries, and the conceptual and practi- cal difficulties surrounding efforts to constitutionalize certain relationships in the context of the European Union.

It is remarkable how little direct influence U.S. constitutionalism has had on recent developments in Europe. This is due, in part, to European rejection of the liberal procedural conception of constitutionalism prevalent in the United States and, in part, to the contrast between the status and functioning of common law judges and those of their civil law counterparts. As clearly outlined in the essay by Donald Kommer and W. J. Thompson, the liberal procedural conception of constitutionalism evinces a strong preference for the state as guarantor of fundamental rights rather than as principal engine for realization of the common good. Accord- ingly, one might expect the liberal tradition to predominate in European countries bent on distancing themselves from an authoritarian past. This has not occurred, however, for, as Nevil Johnson stresses in his essay, Europeans embrace a more teleological conception of constitutionalism owing to their stronger commitment to community and deeper commitment to state-promoted welfare.

Yet, America's lack of influence regarding judicial review is paradoxically ultimately attributable to a convergence between common law and civil law adjudication rather than the obvious divergences among them. This conclusion emerges from various essays in the collection especially from Cheryl Saunder's succinct and incisive account of the evolution of the British constitutional system. Indeed, although mistrust of judges and lack of judicial independence run deep in the traditions of many European countries, recent disen- chantment with politicians and the emergence of strong, specialized, and politically independent constitutional courts have strongly boosted judicial enforcement of constitutional norms. As a matter of fact, some European constitutional courts, such as the German and the Hungarian, enjoy sweep- ing powers that go well beyond those of the U.S. Supreme Court.

The various essays in the collection range from primarily descriptive accounts of particular constitutional changes to rather ambitious explorations of larger theoretical issues. Among the latter, two essays deserve special mention be-

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cause of the breadth and depth of their insights. The first is Ulrich Preuss's essay on constitutional evolution in Eastern Europe, in which he successfully blends his consummate skills as a constitutional lawyer and political theorist to pinpoint the central issues arising out of the recent constitutional journey undertaken in Eastern Europe and to draw out their larger implications for constitutionalism in general. Preuss uses those recent experiences to stress the close relation between constitutional politics and the consolidation of national identity in multiethnic polities. He also provides an illuminating account of certain East European countries' resort to constitutionalization of particular conceptions of citizenship to deprive certain ethnic groups within their borders of full political membership.

The second essay noteworthy because of its theoretical scope is that of Dieter Grimm on constitutional reform in Germany. Grimm, a judge on Germany's Constitutional Court, not only provides an acute analysis of the constitutional dimensions of German unification but also draws on recent events in Germany to map out a persuasive account of the relationship among constitutionalism, politics, and democracy. Furthermore, Grimm sheds interesting new light on the prospects for the success of constitutionalism within the ambit of the European Union, given the "democratic deficit" associated with its current governing structure. Contrary to the prevailing belief that the problem could be solved by a shift in power toward the European Parliament, Grimm con- cludes that the union's lack of a common language-and hence of a unified media capable of molding a commonly grounded public opinion-makes it unlikely that it will reach a level of democracy commensurate with genuine constitutionalism.

Two other essays, each in its own way, serve to complement Grimm's. Dusan Hendrych describes the use of constitutional means to dissolve Czechoslovakia into two separate constitutional republics and addresses issues arising out of such dissolution. While his essay lacks Grimm's theoretical scope, it makes for interesting comparisons between constitutional integration and disaggregation. For its part, the essay by Gunnar Folke Schuppert on the prospects for a European constitution furnishes a useful summary of various positions on the issue and thus further situates Grimm's views within the ongoing debate.

The remaining essays are generally informative, but a couple of them leave something to be desired. This is either because of a failure to convey the import of the constitutional changes discussed to a reader unfamiliar with the tradition involved or because of an overly schematic narrative with unclear theoretical implications. Moreover, although the discussion of individual Eastern European countries, which concentrates on former Czechoslovakia, Hungary, and Po- land, is quite good, the collection undoubtedly could have benefited from a discussion of other countries with quite different constitutional problems, such as Russia, Bulgaria, and Romania. In the last analysis, however, these shortcom- ings are relatively minor, and the collection should prove useful to both legal scholars and political theorists.

Courts, Law, and Politics in Comparative Perspective. By Herbert Jacob, Erhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, and Joseph Sanders. New Haven and London: Yale University Press, 1996. 408p. $45.00 cloth, $20.00 paper.

Martin Shapiro, University of California, Berkeley

Published shortly before Herbert Jacob's death, this book

could well serve as a memorial to his enormous achieve-



American Political Science Review Vol. 91, No. 1

ments. It will allow those who have offered a general course on U.S. courts based on Jacob's Justice in America (1992) or comparable materials to add a comparative dimension or a companion course. In this volume there is an introduction, conclusion, and a chapter summarizing his own work and that of others on U.S. Courts by Jacob. Chapters on England, France, Germany, and Japan by well-known authorities do not slight constitutional law and courts but also provide basic coverage of criminal, public law, and private law litigation, including careful considerations of legal professions and legal cultures. Clearly, great efforts have been made to maintain a parallelism across the several national presentations. The approach is appropriate for either a straight political science or a "law and society" course.

This book is basically a text but not a dumbed-down one. It incorporates the latest research concerns. It wears its sophis- tication lightly, but it is not a series of mere static descriptions of court organizations, personnel, and procedures. Both law and politics are taken seriously. Courts and law are treated neither as wholly autonomous phenomena nor as only the creatures of broader political forces. In the current jargon, law and courts are treated as both constituted and constitut- ing. Teachers who want to use the book as a kind of institutional database for their own analysis may do so, but it can also be used as a relatively free-standing view of the relations among law, courts, and politics.

Although excellent at the level of description and innova- tive in the range of subject matter considered, the book does not offer many original insights, but there are some. Kritzer provides a particularly sensitive treatment of the vexing question of whether the British courts are becoming more activist vis-a'-vis administrative agencies and tribunals. The whole volume usefully spotlights judicial review of the law- fulness of administrative action alongside our traditional concern for constitutional judicial review, treating both as central to judicial policymaking. The heavy emphasis on lawyers will help push political science in a useful direction, although all the contributors are much better about viewing lawyers in the criminal trial process than about assessing their crucial functions in judicial policymaking. While valiantly sticking to the parallel and essentially descriptive tasks of the other chapters, Blankenburg cannot resist some of the generally social democratic critical perspectives on German law and courts of which he is a past master and which are particularly relevant in the context of reunification. Provine is excellent at tracking both the pro- and antijudicial activism themes that vie with one another in contemporary France.

The chapter on Japan is peculiar. Following the current literature, which he fully commands, Sanders gets beyond the simplism that the Japanese do not litigate because of a deep cultural commitment to harmony and takes the position that courts do little as a result of deliberately avoiding litigation regarding government policies. Yet, ultimately the chapter is "reorientalized" as a hymn to a Japanese culture and structure of compromise, consensus, trust, and stability. Like the old community study of Tijuana that missed the whore houses, Sanders gives us a low crime rate without the Yakusa, a nonlitigational auto insurance claims processing system without the cartelized insurance industry colluding to under- compensate, and industrial relations without the raw government-backed economic coercion of the dozen dominant conglomerates. If this is a law and politics study, it is politics without power. For once a touch of critical legal studies would have done some good. Interesting things about Japa- nese law and politics will be written when we learn to begin from the premise that Japan is a rightist, corporatist state.

The importance of the European Court of Human Rights

and the European Court of Justice is a leitmotif running through all the European chapters. By hindsight we can see that an additional chapter on those courts would have been a good thing, and course instructors would be well advised to construct one on their own. Indeed, because of the distinctive post-World War II growth of national and transnational constitutional judicial review in Western (and now Eastern) Europe, law and courts and comparative politics teachers ought to consider a comparative courts or comparative constitutional law of Europe course as an alternative to one with a worldwide scope. Besides this book, a number of recent journal symposia, books, and book chapters have recently appeared (and a number of others will appear in the next couple of years) that, for the first time, allow for a richly detailed and relatively integrated European course concentrating on constitutional and administrative judicial review.

In my view, all the contributors pay too much attention to criminal law and too little to government regulation, but all the chapters do restore regulation to a central place in political science, a place that it surely should regain in an age so fascinated with "free" (i.e., regulated) markets. The volume's inclination to treat civil litigation essentially as litigation by small parties, and then to lump together litigation in which either government or corporations or both are parties, has its up and down sides. Instructors will have to pay special attention to sorting out such issues as repeat versus one-time players as well as the conventional European boundaries between public and private law, which tend to be obscured or confused by this kind of lumping. The absence of a bibliography is no doubt due to cost cutting, but one is awfully useful in a course text. The footnotes make up in part.

Gendering the Middle East: Emerging Perspectives. Edited by Deniz Kandiyoti. Syracuse, NY: Syracuse University Press, 1996. 177p. $39.95 cloth, $16.95 paper.

As'ad AbuKhalil, California State University, Stanislaus

In the products of the culture industry in the West, Middle Eastern women remain passive, subservient, and changeless. Their oppression and exclusion are assumed, not researched or documented. They sometimes serve as a backdrop to the stereotypical depiction of the region, but their voices, like those of the Persian-speaking women of the movie Not Without My Daughter are considered irrelevant. Fortunately, women of the Middle East are no longer invisible in the scholarly production of the West, although their stories are often told indirectly, mostly through the accounts of anthropologists who interpret their worlds and words to Western readers. Many of the studies of Middle East gender issues have been conducted ?by anthropologists, sociologists, and historians. Political scientists of the Middle East, with the notable exception of Mirvat Hatem of Howard University, have ignored issues of gender, perhaps believing that their field is too serious to tackle a subject which only recently has been partially incorporated into political science curricula.

This book contains a variety of articles with only the issues of Middle East gender in common. The book, however, should be titled "English Language Gendering of Parts of the Middle East," because the rich literature on gender in Arabic, Persian, Turkish, French, and Hebrew is largely ignored. That is the major weakness of this otherwise informative and useful book. Nowhere is this weakness more apparent than in the fine introduction by the editor, an anthropologist by training. Kandiyoti attempts to draw a general and thematic picture of the state of gender in Middle East studies but fails to incorporate the significant body of

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Shapiro, Martin. Courts