Annual Review of Law and Social Science (2007 Vol 3)

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Annu. Rev. Law. Soc. Sci. 2007.3:1-20. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/07/07. For personal use only. ANRV327-LS03-01 ARI 24 October 2007 11:1

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Annu. Rev. Law. Soc. Sci. 2007.3:1-20. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/07/07. For personal use only.

Immigration Law, Race, and Identity Kitty Calavita Department of Criminology, Law & Society, School of Social Ecology, University of California, Irvine, California 92697-7080; email: [email protected]

Annu. Rev. Law Soc. Sci. 2007. 3:1–20

Key Words

The Annual Review of Law and Social Science is online at http://lawsocsci.annualreviews.org

ethnicity, naturalization, exclusion, Hurricane Katrina

This article’s doi: 10.1146/annurev.lawsocsci.3.081806.112745

Abstract

c 2007 by Annual Reviews. Copyright All rights reserved 1550-3585/07/1201-0001$20.00

This review examines the scholarship at the intersection of immigration law, race, and identity. Historically, much of the literature has focused on the ways immigration law has constructed, and been constructed by, racial categories. I argue that African American racialization has been a central component of immigrant exclusion and that immigrant racialization has paradoxically hardened images of blackness. Whereas this literature emphasizes the role of law in this process, much of the more recent literature decenters law. This scholarship privileges issues of identity construction, with the fluidity and contingency of racial identity taking center stage. Despite this decentering, law clearly still matters. Examining the reference to Hurricane Katrina victims as “refugees” and the vehement reaction against that reference, we can see the complexities of the connection between racial construction and immigration and the implications for future scholarship.

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INTRODUCTION


The aftermath of Hurricane Katrina saw the displacement of tens of thousands of New Orleans and Gulf Coast residents, particularly the mostly poor, African American population living in low-lying areas. Their pictures filled the news media for days, accompanied by wrenching accounts of the travails of those whom the media came to call “refugees” (USA Today 2005, p. A1). The refugee label provoked a rapid and vociferous response that argued that such a designation connotes outsiderhood and is implicitly racist (Daunt & Abcarian 2005, p. A12). This review examines the social science literature at the intersection of immigration law and race scholarship and traces some of its prominent themes. Some work in this area has focused on the social construction of race via immigration law, and some has examined the dilemmas faced by the courts and by enforcement officers charged with sorting people into effectively arbitrary, but often rigid, racial categories. More recently, the scholarship has shifted somewhat to explore the question of how contemporary immigration law is implicated in shaping identity—that of the host society and that of the immigrants themselves. To some extent, law has been decentered in this latter literature, which is more concerned with the dynamics of identity than with the details of legal process. In this regard, the shift parallels a move in much contemporary law and society work in which the emphasis is increasingly on the agentive, the everyday, and consciousness, and less on formal and informal legal processes. In a concluding section of this review, I argue that these immigration studies remind us once again of the oppressive quality of law and its long reach, and they offer a sober warning against any wholesale “expulsion of law” (Hunt 1992). Finally, I propose that a different kind of decentering may shed light on the dual othering process implicit in the refugee-as-epithet incident described above.

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IMMIGRATION LAW, RACIAL CONSTRUCTION, AND THE CHALLENGE OF BOUNDARY MAINTENANCE Race and the Shaping of U.S. Immigration and Naturalization Law A long tradition of social science scholarship highlights the role that U.S. immigration and naturalization laws historically have played in the development of racial categories and, conversely, the role of racism in shaping these laws over time. Most notably, scholars often point out that one of the young nation’s first decrees and its first statute regulating citizenship declared in 1790 that naturalization was to be limited to “free white persons” (1 Stat. 103) (Omi & Winant 1994, p. 81; Haney ´ Lopez 1996; Minow 1997, p. 59; Delgado & Stefancic 2001, p. 77; Goldberg 2001). The statute aimed to bar the naturalization of both immigrants deemed nonwhite and the Africans who had been subject to forced migration. The limiting of eligibility for naturalization to those who qualified as white was lifted only on an ad hoc basis until the midtwentieth century. The Naturalization Act of 1870 (16 Stat. 254) extended the possibility of naturalization to persons of “African nativity and African descent” following the Civil War and enactment of the Fourteenth Amendment; the bar against Chinese naturalization was lifted in 1943; Filipino and Indian naturalization was permitted in 1946, despite the fact that all these groups had been declared nonwhite by the courts. But the racial basis for naturalization was not formally removed until the McCarran-Walter Act of 1952 (66 Stat. 239). Beyond this foundational element of racism in U.S. naturalization law, numerous scholars have documented its role in excluding particular nationalities from immigration to the United States and in so doing elaborating racial theories and shoring up racial boundaries. The Quota Laws of 1921 and 1924, the


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first time that U.S. immigration lawmakers set out to restrict significantly the number of people entering the United States, were more specifically aimed at limiting immigration from southern and eastern Europe. The Emergency Quota Law of 1921 (42 Stat. 5) restricted annual immigration from each country (the Western Hemisphere was excluded) to 3% of the numbers of that nationality resident in the United States in 1910. The Quota Law of 1924 (43 Stat. 153) went further in an explicit attempt to reduce the more recent southern and eastern European immigration, limiting the numbers of each nationality to 2% of those resident in the United States as of 1890, and, for the first time, the law excluded anyone not eligible for citizenship— i.e., those designated nonwhite. In his now classic treatise, Strangers in the Land, Higham (1977; see also Calavita 1984, Fuchs 1990, Reimers 1998, Ngai 2004) argues that these laws were the product of racial nativism that functioned as a powerful lightning rod onto which were transferred the disparate electrical currents of the period (for example, the Red Scare and disillusionment over the ravages of World War I). Higham (1977, p. 271) singles out Grant’s (1916) The Passing of the Great Race as the “central inspiration” for postwar racism and the quota laws in which it culminated. Outlining a hierarchy within the white race, including Mediterraneans, Alpines, and Nordics—with true Americans being cast as Nordics—Grant warned of the “mongrelization” that would result from “true Americans” mixing with inferior types of whites. Higham documents the influence of Grant and others, such as eugenicist Harry Laughlin and his follower Lothrop Stoddard, author of The Rising Tide of Color (1920), on congressional proceedings. Kenneth Roberts, a Saturday Evening Post journalist, had written that an invasion of Alpine, Mediterranean, and Semitic immigrants would result in “a hybrid race of people as worthless and futile as the goodfor-nothing mongrels of Central America and Southeastern Europe” (Roberts 1922, p. 22);

he was said to have “practically camped in the [immigration] committee’s offices” (Higham 1977, p. 313). Bredbenner (1998) discusses the implications of this early-twentieth-century xenophobia for women. While the Naturalization Act of 1855 had conferred citizenship on foreign women who married U.S. citizens (unless the woman in question was “racially ineligible for naturalization” [Kelly v. Owen (1868), quoted in Bredbenner (1998), p. 22; see also below], the Expatriation Act of 1907 (34 Stat. 1228) revoked the citizenship of any American woman who married a foreigner. Suffragists had exploited the anti-immigrant hysteria of the period by arguing that if naturalized men could vote, then women certainly should be able to vote. The Expatriation Act was a stark warning of the costs of suffragists’ anti-immigrant strategy. While the 1920s quota laws and surrounding debates are often referenced as a focal point in the history of racism and U.S. immigration laws, a growing scholarship on the Chinese exclusion laws demonstrates the importance of these earlier restrictions in establishing racism as a central protagonist in immigration lawmaking. The first Chinese Exclusion Law was passed in 1882 (22 Stat. 58), barring all Chinese laborers from entry into the United States, thus becoming the first immigration law to exclude people based on their nationality. It should be noted here that few Africans migrated to the United States in the late nineteenth century following their long ordeal with the forced migration of slavery, whereas Chinese immigration increased dramatically—a fact that no doubt explains this early selective bar on the immigration of the latter and not the former, despite continuing and intense racism against those of African descent. Extensions and amendments were added frequently to the Chinese exclusion laws over the next 61 years, until their repeal in 1943 when exclusion proved to be a foreign relations embarrassment given the U.S. alliance with China in World War II. www.annualreviews.org • Immigration Law, Race, and Identity

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Salyer’s (1995) Laws Harsh as Tigers is a tour de force, focusing primarily on the judicial and administrative enforcement of these exclusion laws and Chinese strategies of resistance. She sets the context for the first exclusion statute in 1882, arguing that the anti-Chinese racism on which it was based was in large part the product of economics. Noting that 90% of the labor force of the Central Pacific Railroad was Chinese immigrants and that trade with China was a highly lucrative enterprise, Salyer points out that until the 1870s, antiChinese sentiment was effectively countered by a highly influential pro-Chinese immigration lobby. With the railroad complete and a serious depression shaking the California economy in the mid-1870s, the anger that organized labor directed at their Chinese immigrant competition resonated powerfully throughout California and across the nation. Salyer (1995, p. 10) quotes the San Francisco Chronicle from 1879: “When the coolie arrives here he is as rigidly under the control of the contractor who brought him as ever an African slave was under his master in South Carolina or Louisiana.” The furor took a decidedly racist cast, as trumped-up results of cranial studies and other pseudoscientific findings depicted the Chinese as biologically incapable of democracy and a threat to America’s bloodstream. In this context, Salyer argues, “[i]ncreasingly, Chinese became the scapegoat for the workers’ problems” (p. 12). Her analysis of anti-Chinese sentiment in California and in the legislative debates leading to the Exclusion Law of 1882 reveals the potent combustion of economics and racism. Gyory (1998) takes a somewhat contrarian stance, arguing that although historians (e.g., Sandmeyer 1939, Saxton 1971, Mink 1986, Roediger 1999) have generally emphasized the role that racism in the labor movement played in the enactment of the 1882 Exclusion Law, in fact members of Congress themselves strategically fueled the racism for political gain and then noisily came to labor’s rescue. Displacing perceived economic com-


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petition as the primary source of anti-Chinese racism, Gyory thus puts on center stage the politics of the exclusion law and discusses antiChinese racism as merely the political vehicle that drove it. Lee (2003) adds another important dimension to our understanding of Chinese exclusion laws, noting that they established a trend in U.S. immigration law that lasted well into the twentieth century and in some respects persists today. She argues that “the Chinese exclusion era beginning in the 1870s and 1880s is in fact the critical starting point . . . . [I]t changed the ways Americans viewed and thought about race, immigration, and the United States’ identity as a nation made by immigration” (pp. 9–10). According to Lee (2003, p. 24), the Exclusion Law of 1882 was a watershed in that it set the stage for the gatekeeper state, with its bureaucracies of control and identity documentation so central to the enterprise of exclusion. As discussed below, this gatekeeping function of the state coincided with the racial gatekeeping that determined who would be allowed into the categorical territory of whiteness. The gatekeeper state described by Lee flourished and expanded its exclusionary reach subsequent to Chinese exclusion. As Ngai (2004, p. 39) and others argue, the economic and geopolitical power of imperialist Japan in the early twentieth century thwarted anti-Japanese forces in the United States from imposing an outright exclusion on Japanese immigrants comparable to that for Chinese. Nonetheless, in the short term they accomplished the same result through executive orders and bilateral agreements. In 1907, President Theodore Roosevelt used his executive powers to restrict immigration to the mainland from Hawaii, which had the intended effect of indirectly limiting Japanese immigration. That same year, the United States entered into an agreement with Japan (the so-called Gentlemen’s Agreement) whereby Japan would cease issuing travel papers to Japanese laborers, thus achieving the equivalent of exclusion while minimizing the


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diplomatic embarrassment. Because Korea was under Japanese control at the time, the agreement applied to the small number of Korean immigrants as well. California restrictionists tightened the noose further by making everyday life difficult. Thus, the California Alien Land Law of 1913 made it illegal for anyone ineligible for citizenship to own agricultural land—a thinly veiled attack on Japanese who were often landowners. According to Ngai (2004), the antiJapanese racism behind these measures was more complex and less unequivocal than that directed at the Chinese. After all, she argues, “With Japan competing with Western nations on modern, imperialist terms, nativists could hardly say Japanese were the same as the backward Chinese” (p. 40). Indeed, she suggests that, in the case of the Japanese, “nativists shunned allegations of racial inferiority” (p. 40). Ngai’s definition of what constitutes “allegations of racial inferiority” is curiously narrow, given her description of the ridicule, segregation, and exclusion from citizenship to which the Japanese in the United States were subjected. Glenn (2002, pp. 190–235) describes the racialization of Japanese laborers in Hawaii at this time, linking their racialization to their labor function, underscoring both the contingency of race and the flimsy defense against racialization that Japan’s global power provided its most vulnerable subjects. The Immigration Act of 1917 (39 Stat. 874) established the Asiatic Barred Zone that barred anyone from a geographical area that included India, Burma, Siam, the Malay States, the East Indian Islands, Polynesia, and parts of Russia, Arabia, and Afghanistan— although most scholars argue that the main target was Asian Indians (Salyer 1995, p. 133; Reimers 1998, p. 14). The Philippines (a U.S. possession by then) and Japan (for the moment still benefiting from their position as a global power, and in any case effectively constrained by the 1907 Gentlemen’s Agreement) were conspicuously carved out of the twisting and unwieldy parameters of

this geographical zone.1 When the Quota Law of 1924 barred those ineligible for citizenship, Japanese joined those excluded by statute. As Ngai (2004, p. 37) notes, this “completed Asiatic exclusion, thereby constituting ‘Asian’ as a peculiarly American racial category . . . [and] codified the principle of racial exclusion into the main body of American immigration and naturalization law.” As U.S. policymakers debated excluding Filipinos in the late 1920s, U.S. Attorney General Webb (quoted in Ngai 2004, p. 117) was explicit in his support of racial exclusion, explaining, “This Government as founded . . . was then a Government of and for the white race, and it was, I think, with the thought and hope of its founders that it would continue to be the Government of the whites . . . . [W]e want to be protected in our enjoyment of it.” In 1934, with the Philippines now in transition to independence, a nominal annual quota of 50 was placed on Filipino immigration (Tydings-McDuffie Act, 48 Stat. 456). The law that forms the backbone of U.S. immigration policy—the McCarran-Walter Act of 1952 (66 Stat. 163)—was passed at the height of Cold War paranoia, with Senator Pat McCarran (quoted in Ngai 2004, p. 237) admonishing, “If this oasis of the world shall be overrun, perverted, contaminated, or destroyed, then the last flickering light of humanity will be extinguished.” The McCarranWalter Act, drafted as protection against such “perversion” and “contamination,” preserved the national origins system laid out in the

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The 1917 Act went out of its way not to name the barred nationalities, but instead specified boundaries, making for this peculiar text: “The following classes of aliens shall be excluded from admission to the U.S. . . . persons who are natives of islands not possessed by the United States adjacent to the Continent of Asia, situated south of the 20th parallel latitude north, west of the 160th meridian of longitude east from Greenwich, and north of the 10th parallel of latitude south, or who are natives of any country, province, or dependency situated on the Continent of Asia west of the 110th meridian of longitude east from Greenwich and south of the 50th parallel of latitude north” (39 Stat. 874, Sec. 3).

www.annualreviews.org • Immigration Law, Race, and Identity

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1920s quota laws but did away with the racial basis for citizenship and dismantled the Asiatic Barred Zone. But as Lowe (1996, p. 193, footnote 53) points out, the barred zone was replaced with a strict quota of 2000 immigrants per year from what was now called the AsiaPacific triangle, including a limit of 100 ethnic Chinese regardless of their actual country of origin, thereby continuing to racialize Asians. So potent was this racialization of Asian Americans that 60 years after repeal of the Chinese exclusion laws, Alba & Nee (2003, p. 70) declared, “[S]ome might argue that the legacy of racism experienced by these nonwhite immigrant groups—and the Asian phenotype—rules out the full scope of assimilation [experienced by European immigrants]. Thus, even though the descendants of the early Chinese and Japanese immigration may be third-, fourth-, and even fifthgeneration Americans, they continue to be seen and treated as other, as perpetual foreigners.” In Forever Foreigners or Honorary Whites?, Tuan (1998, p. 167) describes the lasting effects of the racism inscribed in exclusion laws and the ongoing struggle of Asian Americans to belong, concluding hopefully that “Asian ethnics [might be] entering that ‘twilight’ period of their ethnicity.” The national origins system was abolished with the passage of the Hart-Cellar Act of 1965 (79 Stat. 911), as was the Asia-Pacific triangle restriction. Replacing them was an annual allotment of 20,000 visas each for countries not in the Western Hemisphere and, for the first time, a 120,000 persons total limit on Western Hemisphere immigration. Johnson (2002) argues that the 1965 law, which is often regarded as a triumph for civil rights, was in fact motivated in part by anti-Latino sentiments. He quotes members of the immigration commission whose recommendations culminated in the 1965 law, as they observed ruefully that ceding something to anti-Latino lobbies in the form of restrictions on Western Hemisphere immigration was the “price to be paid for abolishing the national origins system” ( Johnson 2002, p. 192). Tracing these


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links between race and contemporary immigration law, Johnson contends that the link is not “just a historical artifact” but a defining feature of contemporary debates (p. 192). Summarizing the pattern of racial exclusion in U.S. immigration and naturalization policy, grounded in “race-based assessment[s] of the capacity of different racial groups to assimilate,” Trucios-Haynes (1997, p. 373) observes, “[i]mmigration law and policy historically has used race as a proxy for determining membership in U.S. society, reinforcing this hierarchy of race.”

The Socio-Legal Construction of Race Some of the early scholarship on the history of racism and law itself appears to reify ´ racial categories. Haney Lopez (1996, p. 11), for example, contends that Higginbotham’s (1978) study of the role of law in subordinating Africans in colonial America assumes an a priori category of blackness. Similarly, in Bell’s (1973) early casebook on Race, Racism, and American Law, “‘Black’ and ‘White’ are ´ treated as natural categories” (Haney Lopez 1996, p. 11). In contrast, much of the current literature on the implementation of, and resistance to, immigration law focuses specifically on how racial categories are constructed, deconstructed, and reconstructed through law. Merry (2003), for example, traces the many links between and among citizenship status, immigration regulation, and labor needs in her analysis of the constitution of racial identity in nineteenth- and twentieth-century Hawai’i. Focusing on the plantation system and the material and legal practices that assigned racial identities to people of various nationalities and secured a rigid racial and labor hierarchy, Merry (2003, p. 209) underscores the importance of both local and global processes in constructing the “pervasive racialized hierarchy of the plantation.” Although “whites [were] virtually always on top” (p. 209) and Asian laborers at the bottom, “endless struggle [was] required to create the marks


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of difference and to hold them firm as populations themselves blend[ed] and chang[ed]” (p. 203). Among the most important of these “mark[er]s of difference” were immigration and naturalization laws, many copied from the U.S. context, that precluded Asians from naturalizing and restricted their entry, thereby reinscribing their racial difference. Similarly, Ngai (2004) argues that the quota laws in the United States were not only a consequence of racial nativism, but had their own formational effect on race as well, as categories that were codified in law were hardened and solidified. She observes that southern European immigrants were treated as white (although not the vaunted Nordic), and that “[i]n the construction of that whiteness, the legal boundaries of both white and nonwhite acquired sharper definition” (p. 25). As these boundaries were drawn, Americanness itself was constituted as white. Fuchs (1990, p. 60) quotes the immigration commissioner the year after the 1924 Quota Law was implemented, as he proudly proclaimed that now most immigrants “looked exactly like Americans.” As Goldberg (2001, p. 181) puts it, during this period “[w]hiteness became not just a racial but the national identity.” Immigration and naturalization law was a principal protagonist in defining what white actually meant. According to Goldberg (2001), not until the second half of the nineteenth century and the collapse of slavery in the United States and struggles against colonialism in other parts of the world was the concept of whiteness significantly challenged. In the context of these challenges, “Whiteness . . . needed to be renegotiated, reaffirmed, projected anew . . . . From this point on . . . whiteness explicitly and selfconsciously becomes a state project” (p. 181). A significant part of this project was the definition of whiteness for purposes of naturalization law. Beginning in 1878, the courts were repeatedly called on to decide naturalization cases, to determine who was and was not included in the category of white, and on what grounds.

´ As Haney Lopez (1996) demonstrates, the courts “had to explain the basis on which they drew the boundaries of whiteness. The courts had to establish by law whether, for example, a petitioner’s race was to be measured by skin color, facial features, national origin, language, ancestry, the speculations of scientists, popular opinion, or some combination of these factors . . . . In short, the courts were responsible for deciding not only who was White, but why someone was White” (pp. 2–3, emphasis in original). ´ Haney Lopez (1996) examines these prerequisite cases brought by alien petitioners who claimed a white identity for the purposes of naturalization to U.S. citizenship and reveals that the content of racial categories as well as the criteria by which those categories were circumscribed were unstable and contingent. He shows, for example, that in the landmark case of In re Ah Yup in 1878 in which citizenship was denied to the Chinese petitioner on the grounds that he was not white, the federal district court in California appealed simultaneously to common knowledge and scientific evidence (pp. 5–6). Over the next ´ several decades, Haney Lopez (1996, p. 6) reports, “a schism appeared,” with some courts privileging a common knowledge approach and others favoring scientific evidence. However, by the early twentieth century, as scientific findings began to contradict conventional racial categories (particularly regarding the nonwhite status of Syrians and Asian Indians), the courts simply discounted science. With science unable to validate popular prejudice and slippage and contradictions abounding, ´ Haney Lopez concludes ruefully that “common knowledge emerged as the only workable racial test.” Minow (1997, p. 60) observes ´ of Haney Lopez’s examination of these cases, “This history illustrates not only the uncertainty and mutability of the racial category [of whiteness], but also the law’s apparent need for clear, bounded categories.” ´ Haney Lopez (1996) provides a fascinating, comprehensive list of these prerequisite cases in a six-page appendix, including www.annualreviews.org • Immigration Law, Race, and Identity

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the various and tortuous decisions made by the courts. Thus, “Chinese are not White,” “Persons half White and half Native American are not White,” “Hawaiians are not White,” “Burmese are not White,” “Japanese are not White,” “Mexicans are White,” “Native Americans are not White,” “Persons half White, one-quarter Japanese, and one-quarter Chinese are not White,” “Asian Indians are probably not White,” “Syrians are White,” “Armenians are White,” “Syrians are not White,” “Filipinos are not White,” etc. The self-contradictions and inconsistencies involved in establishing racial boundaries were no accident. Instead, just as the nature of these inconsistencies reveal the arbitrary nature of the boundaries, they reveal too the often pragmatic and instrumental concerns driving them and shifting over time. The economic interests linking slavery and racism against Africans are obvious and scarcely need repeating here, as is the self-interest of American founding fathers who were as convinced of their manifest destiny to expand westward as they were of the racial inferiority of the American Indians they exterminated in the process. Horsman (1981, pp. 300–301) summarizes this bond between racist ideology and self-interest in early America: “By the late 1830s pro-Indian and antislavery spokesmen were drawn almost exclusively from areas in which there were few blacks and fewer Indians. . . . When basic interests were involved, intellectuals thought hard to discover why blacks should be enslaved or Indians dispossessed.” Similarly, economic and foreign policy interests were often central to determinations of whiteness and help to explain some of their vertiginous reversals and incoherences. Thus, in 1897 Mexicans were declared white in In re Rodriguez (1897) for the purpose of naturalization because of the constraints of prior treaties required by U.S. expansion into the Southwest, despite the judge’s obvious ambivalence in the matter— an ambivalence that continued to characterize Mexican American racial identity well into


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´ the twentieth century (Haney Lopez 1996, ´ p. 61; Gomez 2005, pp. 9–10). As Ngai (2004, p. 50) puts it, “[P]aradoxically, conquest facilitated the racialization of Mexicans in the United States as ‘white’,” since the 1848 Treaty of Guadalupe Hidalgo, which annexed large parts of Mexico, had naturalized en masse thousands of Mexicans in these territories and thus implicitly recognized them as white for the purposes of naturalization law. Economic and political interests intersected in the racial definition of the Chinese as well. Salyer (1995, pp. 8–9) describes the proChinese stance of industrialists interested in cheap Chinese labor prior to the completion of the Central Pacific Railroad and argues that the silence of this powerful lobby after the railroad’s completion paved the way for Chinese exclusion from both immigration and citizenship. As described above, with organized labor concerned about economic competition during a recession, and Congress primed to exploit the issue, classification of the Chinese as an inferior race was given free rein. Glenn (2002) addresses the economic interests underlying immigrant racialization from a slightly different angle, arguing that immigrants’ racialized labor was foundational to the U.S. economy. “Of all wealthy countries,” she says, “the United States is the only one to have substantially relied, for its economic development, on the labor of peoples from all three nonwhite areas of the globe: Africa, Latin America, and Asia. Thus a central feature of the U.S. economy has been its reliance on racialized and gendered systems of control, including coercion” (p. 5).2 While Glenn does not go so far as to argue intent,

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A different reading would suggest that, at least with regard to the contemporary scene, the United States is not unique in exploiting cheap labor from all three of these continents and in racializing this immigrant labor by virtue of its economic function. My own research in contemporary Italy and Spain (Calavita 2005) reveals that immigrants from Africa, Asia, and Latin America in these new countries of immigration are both tolerated as a cheap labor supply and disdained as such, with racialization being the common denominator.


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she reveals the powerful economic benefits of a racialized (and gendered) workforce and the myriad ways that immigration and citizenship policies have been implicated in their construction.3 Carter et al. (1996, p. 135) conduct a comparative study of government discourse surrounding immigration restrictions in the United States and Britain in the periods 1900– 1917 and 1948–1971, respectively, and argue that “debates over immigration and citizenship policy . . . are key moments in the ‘race making’ process and the construction of national identities.” Noting that these periods were marked by “social change [that] profoundly challenged older versions of national identity,” the authors reveal that the racialized conceptions of new immigrants performed double duty. Not only did they help reconstitute the flagging national identity, but they racialized immigrant labor and thereby provided a pool of essentially “unfree wage labourers” (p. 137, emphasis in original). Side-byside with this instrumental view of immigrant racialization, Carter et al. (1996) remind us that the “race project” is never complete, that racial boundaries shift with historical circumstances, and that closure and coherence are bound to be elusive (as they were in the prerequisite cases described above). If the courts had difficulty fixing what white was for the purpose of naturalization, racialization sometimes complicated immigration enforcement as well. My own work (Calavita 2000, 2001, 2006) on the implementation of the Chinese exclusion laws reveals that these laws raised “vexatious

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One might argue further that labor function itself triggers racialization. If a particular immigrant group is willing to— or condemned by illegal status to—perform low-wage work under precarious conditions, that group ipso facto may get racialized as nonwhite regardless of skin color, as Ignatiev (1995) shows in How the Irish Became White. This helps explain the continuing ambivalence regarding Mexican racial identity in the United States despite their official designation as white. It explains too the racialization of cheap Italian labor in northern Europe in the 1960s, long after they had been assimilated as white in America.

and perplexing questions” for the customs collectors responsible for enforcement (San Francisco Customs Official 1883). The task of these hapless officials was to bar Chinese laborers (who had been deemed racially inferior) and admit without undue delay or humiliation Chinese merchants (whose superior class was thought to trump their race). Ironically, congressional lawmakers, in their reluctance to see upper-class merchants as members of the “Chinese race” (a reluctance in part based on the lucrative nature of trade with China), implicitly acknowledged the social character of race despite repeated references in the restriction debates to blood and cranial development. While Congress was apparently oblivious to its own contradictions in logic, enforcement officials confronted on a daily basis the practical dilemmas associated with these conflations of race and class and the facile assumption that both could be discerned by observing a person’s physiology, dress, and manners. The difficulties these enforcement officials had in implementing the exclusion laws reveal the incoherences within the legal categories themselves. As Minow (1997, p. 42) has said in another context, “Ambiguous boundaries around racial, gender, and other identity categories expose their instability.”

Foreigners and the “Other” Within A rich body of scholarship addresses the immigrant as racialized other and the role this othering plays in shoring up national identity. Echoing a point made by Carter et al. (1996), Behdad (1997, p. 155) argues that in the United States immigration is “both a necessary mechanism of social control in the formation of the state apparatus and an essential cultural contribution to the formation of national identity.” Honig (2001) similarly shows how the foreignness of outsiders has been used historically to define and shape the national community. While this literature makes an important contribution to our understanding of the immigrant “stranger” www.annualreviews.org • Immigration Law, Race, and Identity

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(Simmel 1950), it tends to overlook the ways that immigrant racialization has contributed to and been shaped by the ongoing racialization of African Americans and thus problematizes the concept of national identity. For if immigration law has been central to definitions of whiteness, it has also drawn from and been indirectly complicit in shaping images of blackness, further undermining any uniform “imagined community” (Anderson 1983). It is often argued that the black/white binary is the primary template of race relations in the United States and that African Americans are the prototype of otherness against which other people of color— including racialized immigrants—are juxtaposed and compared (Kim 1999; De Genova & Ramos-Zayas 2003, p. 12; see also Bean ´ & Stevens 2003, Ong 2003, Gomez 2005). Thus, Ong (1999, 2003) discusses the disadvantage of Cambodian refugees in the Asian American race hierarchy of the latetwentieth-century United States and argues that they are positioned as black Asians. She writes, “The ideological formation of whiteness as a symbol of ideal legal and moral citizenship today continues to depend upon the ‘blackening’ of less desirable immigrants” (Ong 1999, p. 272).4 Similarly, Kim (1999) draws a metaphorical triangle in which African Americans anchor the apex and other people of color are positioned relative to them. There is little doubt that antagonism toward African Americans has historically informed U.S. immigration policy and the racialization of immigrants. Roediger (1999) argues that the white working class in America was subjectively shaped by its distancing from blacks and their association with a disdained preindustrial past. As unskilled, dependent labor was identified with the slave labor of


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˜ (2001, p. 179) describes the reverse proSalazar Parrenas cess of racial differentiation among Filipina domestic workers in Rome and Los Angeles, in which Filipinas are advantaged relative to domestic workers of other racialized nationalities.

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blacks, recent immigrant groups who were destined to do such labor were written off as “White niggers” (p. 145). The Chinese, for example, were often lumped together with African Americans, “with the former group being cast as nonwhites, as ‘slaves’ and even as Black” (p. 179). The congressional debates over Chinese exclusion in the 1880s were replete with references to African Americans and slavery in this postbellum period. Some invoked positive images of the Chinese relative to blacks. Contesting a clause making the Chinese ineligible for citizenship, one Republican member of Congress declared incredulously, “We have struck the word ‘white’ out of the naturalization laws so far as it applies [sic] to the Hottentot, to the pagan of Africa . . . . Now is it proposed to deny the right of naturalization to the Chinaman, who is infinitely above the African in intelligence, in manhood, and in every respect?” (quoted in Gyory 1998, p. 51). Proponents of exclusion, however, argued that they had learned a hard lesson from their previous mistakes on the race question. Thus, some said simply, “We have one race problem already unsettled in this country” (Congressional Record 1882, p. 1519), and “Because we have one evil, shall we fly to another?” (Congressional Record 1882, p. 1645). Senator Jones of Nevada asked rhetorically, “Does anybody suppose for an instant that if the African were not in this country to-day we should be anxious to welcome him? Does any reflecting man believe that he is an advantage to this country?” (quoted in Gyory 1998, p. 228). Other exclusionists feared the effect the Chinese would have on allegedly impressionable blacks. A Democrat from Texas warned, “The colored man is naturally superstitious, and how far he might be carried away from the Christian civilization after the Joss god of the Chinaman no one can tell. That he would be liable to fall into his vicious habits is greatly to be feared. Do not let these colored men be brought in contact with these Chinese people . . . . We are trying


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to build them up” (Congressional Record 1882, pp. 1583–84). Johnson (2002, pp. 188–89) contends that the venom with which immigrants to the United States have been racialized and at times excluded is largely the product of transference, i.e., “the displacement of frustration from domestic minorities to immigrants of color.” The frequency with which African Americans were referenced in the exclusion debates is certainly consistent with this interpretation. More to the point here, however, such references—whether from advocates or opponents of exclusion—are building blocks in the social construction of race, both that of African Americans and that of the immigrants to whom they are often juxtaposed and compared. It is beyond the scope of this article to enter into the debate in Critical Race Theory over the intellectual and political advantages of the black/white paradigm of American race relations, a debate that has been insightfully engaged elsewhere (Espinoza & Harris 1997, Perea 1997, Trucios-Haynes 1997, Carbado 2002, Matsuda 2002, Bean & Stevens 2003). It bears noting, however, that the very complexities of that debate and its political nuances highlight the degree to which immigrant racialization and African American racialization have been integrally connected. If immigrants’ minority status has been defined in part by the dominant template of African American racialization, it is also the case that the racialization of immigrants through immigration and naturalization laws, by calling on images of blackness, has played a part in hardening those images.5

CONTEMPORARY IMMIGRATION AND THE SHIFT TO IDENTITY CONSTRUCTION While the work discussed above primarily documents the central role of immigration law in racialization historically, much of the scholarship on contemporary immigration puts subjective identity issues on center stage and only implicitly or indirectly addresses formal legal processes. This shift is consistent with the broader trend in law and society scholarship that decenters law and focuses instead on legality as it permeates the everyday and subjective legal consciousness. The fact that U.S. immigration law has become less explicitly racist since 1965 and that civil rights laws have made overt domestic racial discrimination illegal may also have contributed to this greater focus on the dynamics of subjective belonging and racial self-identity. Tilly (2006) conceptualizes a classification of reasons we give for human events in his evocatively entitled book, Why? According to Tilly, there are four basic categories of reasons we deploy to explain things, two of which are technical accounts and stories. Law and society theories arguably conform to a comparable schema. Thus, scholarship that focuses its explanatory lens on law as it shapes and is shaped by racial formation writ large, as discussed above, resembles technical accounts that emphasize causal relationships, abstract reasoning, and institutional structures; the scholarship we turn to now focuses instead on the fabric of people’s lives stitched together by self-narratives and reveals the power of story.

Immigrant Self-Positioning ` Vis-a-Vis “Others” 5

Matsuda (2002, p. 395) underscores the links between American racism against blacks and anti-immigrant sentiment and speaks poignantly to its contemporary legacy: “When the Los Angeles Police Department gunned down a Korean American traffic violator; when police in Northern California murdered an unarmed Chinese American man who was drunk on his own front lawn; when a Louisiana jury acquitted a Louisiana homeowner who had shot a Japanese teenager who came to the door to ask for

One dominant theme in this scholarship relates to the identity dilemmas of immigrants of color and their subjective positioning

directions—these are real instances, not metaphors, of fear of blackness killing somebody.” www.annualreviews.org • Immigration Law, Race, and Identity

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vis-á-vis African Americans. Fouron (2003) and Fouron & Schiller (2001), for example, discuss how Haitian transmigrants (e.g., those who identify home as both Haiti and the United States) distance themselves from American blacks in an effort to escape the social exclusion attendant to that status. Fouron (2003) introduces his essay with an overview of the impact of globalization, Haitian political upheaval, and U.S. laws that have challenged Jim Crow era racism yet have been unsuccessful in eliminating the color line. He argues that within this context Haitian migrants both identify with and attempt to distinguish themselves from U.S. blacks: “While they celebrate the common ancestry they share with the African-Americans, believe in the same dreams, partake in their aspirations, and bemoan their common adversities, in general they maintain a safe social distance between themselves and the African-American populations” (Fouron 2003, p. 216). In her detailed analysis of black identities among West Indian immigrants in the United States, Waters (1999, see also Vickerman 2001) draws out the irony of a situation in which the more that black immigrants become Americanized or assimilated, and identify and present themselves as such, the less likely they are to be upwardly mobile. Morsy (1996, p. 189) reports a similar “opportunistic detachment” from African Americans on the part of some Egyptian immigrants: “[N]ew immigrants who want to succeed in racially stratified U.S. society may well try to distance themselves from socially debased categories” (p. 189). Morsy even quotes one Egyptian immigrant expressing hostility to the African American community that, he says, tries “to steal our heritage” by claiming the achievements of ancient Egypt as their own and thereby “overcom[e] its ‘slavery complex’” (p. 189). Morsy (1996) is careful to present the enormous diversity of subjective identity among Egyptian immigrants in the United States, some of whom shun an African identity while others embrace it. He tells the story of


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Mostafa Hefny, a naturalized U.S. citizen of Egyptian origin, who contested the Immigration Service classification of him as white. As Mostafa Hefny explained his concern (quoted in Morsy 1996, p. 176), “Classification as it is done by the United States government provides Whites with legal ground to claim Egypt as a White civilization . . . . We are fools if we allow them to take this legacy from us.” Morsy elaborates that “Hefny’s ‘racial’ identity, irrelevant to him and others in their dealings with the Egyptian bureaucracy, now gains prominence in the social context of his new homeland,” once again affirming the mutable and socially contingent nature of racial identity.6 Echoing these themes and consistent with Portes & Rumbaut’s (2001) “segmented assimilation” theory, Rodr´ıguez (1996) describes the variation of Puerto Rican identity in New York City, with three interview subjects respectively expressing a multiracial identity, resistance to a multiracial identity, and identification with U.S. blacks. In the latter case, the immigrant told Rodr´ıguez when she asked him why he saw himself as black, “Because, when I was jumped by whites I was not called a ‘spic’, but I was called a ‘nigger’” (quoted in Rodr´ıguez 1996, p. 141). Summing up the myriad internal and external pressures that come to bear on racial identity and the conflicts between internal cultural identity and racial appearance, Rodr´ıguez’s essay reminds us that while some immigrants of color may find it opportunistic to distance themselves from American blacks and others in contrast may embrace racial solidarity with them, neither represents an abstract choice. Instead, Rodr´ıguez argues (coming dangerously close to denying agency altogether),

6

While Egyptians were classified by the U.S government as white, Egyptian students in the southern U.S. in the 1950s and 1960s discovered a different everyday reality. Morsy (1996, p. 185) tells of his own experience as a student in Florida in the early 1960s when civil rights groups were engaging in lunch counter sit-ins: “For the first time some of us were refused service in restaurants, often after long consultations among waitresses who were audibly debating our racial identity.”


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they illustrate “the range of choices people are forced to make” (pp. 141–42). In a different twist, and further revealing the complexities and contingencies of the racial identity formation of immigrants of color vis-á-vis African Americans, De Genova & Ramos-Zayas (2003) speak to the development of a sense of “Latinidad” among Mexicans and Puerto Ricans in Chicago and the centrality of their distancing from American blacks in this bonding. In contrast to the “opportunistic detachment” that Morsy, Fouron, Glick Schiller, and Waters write of that is predicated on a desire to distinguish oneself from the underprivileged, De Genova’s Mexican and Puerto Rican interviewees consistently describe American blacks as overprivileged and lazy, while they depict Latinos as a people who are used to—and valorize—hard work. Some Mexican respondents distance themselves not just from African Americans but from Puerto Ricans as well, whose privileged citizenship status is contrasted to the often illegal status of Mexican immigrants and their related willingness to sacrifice and to work hard. A Mexican interviewee (quoted in De Genova & Ramos-Zayas 2003, p. 33) declared, “Mexicans don’t go on welfare; welfare is for Blacks, Americans, and Puerto Ricans because they are lazy.” In other words, these Mexican immigrants, who are proud of their ability to work hard, set themselves apart from American blacks not because the latter are seen as socially debased but precisely because they are seen as privileged by U.S. citizenship and hence lazy.7 Smith (2006) similarly portrays the ambiguities of identity of first- and secondgeneration Mexican transnationals in New York City, underscoring their simultaneous 7

In a chapter entitled “We Don’t Sleep Around Like White Girls Do,” Le Espiritu (2003, p. 157) reveals the subjective disassociation by some immigrant groups from whites as well. She reports the words of a second-generation Filipino daughter: “I found that a lot of the Asian American friends of mine, we don’t date like white girls date. We don’t sleep around like white girls do.”

distancing from and solidarity with Puerto Ricans. Smith explains, “They fear the Puerto Rican present will become their Mexican future” (p. 31). As a result, while they “tend to value the help of their Puerto Rican friends,” these Mexican transnationals “posit a racialized difference between themselves and Puerto Ricans” (p. 34). And, as with the Caribbean transmigrants described by Fouron, Glick Schiller, and Waters, the fact that the Mexican immigrants in Smith’s ethnography subjectively and literally reside in two different national contexts complicates considerably their racial self-identity and exposes its contingency.

The Fluidity of Identity and “Reactive Ethnicity” A second theme in this literature, which is threaded throughout many of the works cited above, is that of the fluidity and “motility” (Stoler 1997) of racial and national identity. Portes & Rumbaut (2001) give us a detailed portrait of the immigrant second generation in the United States with an emphasis on the complex processes and dynamics of assimilation. While much of their work is demographic and macrosociological in nature, Portes & Rumbaut (2001) also present numerous first-person accounts of second-generation immigrants as they engage in the “forging of a reactive ethnicity” (p. 148). These accounts underscore the nonlinear nature of assimilation and identity formation and the ways in which these secondgeneration immigrants are affected by intermittent external events that remind them of their racialized rejection by the host society. One young Mexican American woman in southern California told Portes & Rumbaut (quoted on p. 148) that her “Mexican ethnic identity was ‘thickened’” when the antiimmigrant Proposition 187 passed by a wide margin in California in 1994. Similarly, Korean Americans in Los Angeles were so alarmed by the burning of more than 2000 Korean-owned stores in 1992 that “many www.annualreviews.org • Immigration Law, Race, and Identity

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young Koreans born or raised in the United States [became] self-conscious about their common fate and distinctiveness as Koreans” (Portes & Rumbaut 2001, pp. 148–49).8 Also illustrative of the multiple and reactive nature of identity, Melossi (2000a,b), Dal Lago (1999), and Colombo (1997) describe the process by which some recent immigrants in Italy adjust their self-identity to concur with the racialized stereotypes thrust upon them. They argue that immigrant men, particularly but not exclusively North Africans, have been criminalized in the public mind and through the criminal justice system and that some respond to this racialization by modifying their performative identity. Colombo (1997) collected oral histories of young Algerian men in Milan who were engaged in a variety of petty crimes. The story of one of these men reveals the links among racial stereotypes, legal status, criminal activity and identity, and the contingency and sometimes reactive nature of the latter (quoted in Colombo 1997, p. 17):


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One day, towards evening, a police patrol arrived in order to make a search [of our house], thinking they were going to find drugs, which of course they didn’t . . . . [O]ne of these cops, who I’ll never forget, and who I’ve seen several times since, took me aside . . . and said, ‘You have your residence permit?’ [I said] ‘Yeah,’ [He said] ‘Well, you can stick that permit up your ass.’ And saying that, he tore up the

8

“Reactive ethnicity” itself is multidimensional and does not always result in a “thickening” of ethnic distinction. Yin (2005) reviews Chinese American literature of the early twentieth century, in particular memoirs and autobiographies, and reveals the various adaptations made by the authors who came of age during the Chinese exclusion era. Focusing on Pardee Lowe’s Father and Glorious Descendant and Jade Snow Wong’s Fifth Chinese Daughter, Yin explains Lowe’s distancing from Chinese culture and Wong’s assumption of a “model minority” identity as different responses to “the social and historical contexts of their time” (Yin 2005, p. 235).

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paper right in front of me . . . . From that moment I said: ‘OK. You want me to be illegal? You don’t want me to have a residence permit? OK, that’s the way it will be.’ And from that moment on I began stealing for real!

Suárez-Navaz’s (2006) thick description of the newly constructed identity of Andalusians as Europeans is the mirror image of immigrants’ “reactive ethnicity.” Suárez-Navaz explains that poor Andalusians in this agricultural region of southern Spain now identify as citizens of the European Union and disdain the North African migrant farmworkers with whom they had previously bonded in class solidarity. With the passage of Spain’s first immigration laws in the 1980s and its entrance into the European Union, these Andalusians have come to see the immigrants with whom they had worked in the fields for decades as “others” with intolerable cultural and racial differences and dangerous proclivities, in contrast to which they have reconstructed their own social and racial identity as white Europeans. These illustrations from the European context suggest that the dynamics of othering and the often reactive nature of identity construction are not particular to the United States. Whereas the origins of the groups differentially subject to racialization may vary across national contexts—signaling once again the social nature of race—its processes and mechanisms appear to be much less variable (Hage 2000, Balibar 2002, Calavita 2005).

White Consciousness A small but growing body of literature explores white consciousness more generally as it relates to immigration. In White Nation, Hage (2000) deconstructs the pro- and antiimmigrant graffiti on the campus of the University of Western Sydney in Australia and argues that whatever the ideological differences between the white authors of these graffiti, they share a view of themselves as the “masters of national space.” Citing Edward Said’s


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concept of “Orientalism,” Hage (2000, p. 17, emphasis in original) describes the common conception of ethnics in Australia (i.e., largely the Aboriginal and immigrants) “as people one can make decisions about: objects to be governed.”9 In contrast, whites see themselves as “enactors of the Law” and “‘governors’ of the nation,” and assume that it is “up to them to direct the traffic” (pp. 16–17). Related to the notion of whites as “masters of national space” is the assumption that whites are the standard in comparison to which blacks and/or immigrants are differentiated (hence the view that whites are not ethnics). Frankenberg (1996, p. 62) conducted a series of interviews with white, U.S. women to explore “the social construction of whiteness.” Her findings suggest that even among these women, who consider themselves enlightened on issues of race, “whiteness and Americanness both come to stand as normative and exclusive categories, in relation to which other cultures are identified and marginalized.” Thus, when they speak generically of “people,” these interview subjects are almost invariably referring to white Americans, such that “‘White’ . . . is implicitly equivalent to self, norm, and nation” (p. 69). Illustrative of this notion of nonwhites as deviants from the normative white standard, one woman referred to her Jamaican, Rastafarian daughter-in-law, “She really comes with diversity” (quoted on p. 69, emphasis in original).

DISCUSSION As we have seen, the literature on immigration law and race ranges broadly and includes works that place naturalization and immigration law as central components in the drawing of racial boundaries, explore the mutability of racial categories, trace the legal difficulties

9

Constable (1993, p. 260) makes a similar point when she argues, with regard to undocumented immigrants, that they come to be seen as “the regulatable resources of the territory more than its self-determining subjects.”

of deciphering and maintaining racial boundaries, and examine issues of subjective identity. In this final section, I make two observations about this literature and then offer a suggestion for future research, drawing on the Katrina incident with which I began. The first observation relates to the continued naturalization of race throughout much of this scholarship despite repeated declarations of its social constructedness. In unguarded moments the authors refer unproblematically to “whites,” “nonwhites,” “blacks,” “ethnics,” and other racial categories. I too lapse into this reification of race when I speak about “immigrants of color” as if this were a naturally occurring category, the boundaries and content of which are clear and fixed, presumably by skin color. This is perhaps an inevitable, if ironic, feature of social constructions: Try as you will, you cannot get outside of them. Fitzpatrick (1998, p. 191) critiques social constructionism as a theoretical paradigm, noting that constructionism requires an assumption that the analytical observer can somehow remove herself from the constructed universe of her analysis. I argue that this observation does not condemn the approach as unworkable— after all, the authors referred to above often brilliantly expose the infrastructure of these constructions. Instead, the difficulty of conversing about race without reifying it merely underscores the solidity of the edifice and its continued relevance. The second observation is that even in recent works that decenter law, it is clear that law still matters. Many of these authors reveal the degree to which racial identity is reactive (Portes & Rumbaut 2001), with law being an important catalyst in the reaction. Morsy (1996) brings to us the words of an Egyptian immigrant who embraces his African ancestry in angry response to the Immigration and Naturalization Service classification of him as white. Portes & Rumbaut (2001) quote a Mexican American teenager as she describes her thickening Mexican identity after Proposition 187. And Colombo (1997) writes of Algerian immigrants in Italy who respond to www.annualreviews.org • Immigration Law, Race, and Identity

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the racialized stereotypes of the criminal justice system by performing the part. White identity, too, is constructed here in tandem with legal processes. Suárez-Navaz (2006) shows us the evolving self-identity of Andalusians following the enactment of Spain’s first immigration laws in the 1980s and its official entrance into the European Union. And Hage’s (2000, p. 16) analysis highlights the self-identity of Australian whites as “enactors of the Law.” Although it is true that law has been decentered in these works on contemporary identity construction, collectively they remind us once again of law’s long reach, the theoretical rewards of tracing its grasp, and the potential losses of any wholesale “expulsion of law” from our analyses (Hunt 1992). This brings me back to the refugee-asepithet incident in the aftermath of Hurricane Katrina. The debate over the media use of the term “refugees” to refer to the mostly African American population displaced by Katrina reveals a great deal about the persistence of racialized inequality in this post– civil rights period, the use of code words to signal race, and the foreigner as other against whom native blacks position as insiders. Thus, reference to New Orleans blacks as refugees implies that they are essentially Third World outsiders in a normative white society. As revealing, and less remarked upon, is the vociferous reaction the reference triggered, underscoring the racialized dehumanization of the real refugee and the need to distinguish ourselves from such a lowly, alien figure. The incident in one stroke exposes the ongoing racism against impoverished African Americans, the othering of the immigrant/refugee, and the jockeying for position that such dual exclusion provokes. In her analysis of conflicts between African Americans and Korean Americans, Ikemoto (1993, p. 1583) argues that the “master narrative of white supremacy” pits African Americans and Korean Americans against each other in a “tale of relative nonwhiteness.” She observes, “The first-in-time principle describes Korean Americans not only


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as immigrants and therefore later in time, but also as foreigners and therefore less American . . . . When African Americans made nativist charges, they positioned themselves as whites relative to Asians . . . . The implication that Blacks are real Americans strikes an odd note in this context since the norm-making dominant society has usually defined the real American as white” (pp. 1588–89). Law is a central protagonist here. Just as immigration law has increasingly criminalized undocumented immigration but not reduced the flow, so have civil rights laws pushed racism underground but not diminished it. In the process, Third World immigrants and native blacks continue to be racialized, but now in ways that are more difficult to access and thus to confront and that complicate considerably the interracial interactions of the African Americans displaced by Hurricane Katrina and the immigrants daily arriving in New Orleans to take the jobs Katrina created. In this post–civil rights era, the connections between law, immigration, and racism are not always direct or explicit, as employer preferences for immigrants over native blacks get encoded as a natural proclivity for those with a strong work ethic (Carbado 2002, Waldinger & Lichter 2003) and illegal status is a de facto passport into some job markets. Another kind of decentering, or more precisely decoupling, may be called for here. Just as there is no inherent reason to make formal law the primary factor in our analysis of immigration and race, neither should immigration law necessarily be the prime suspect. Civil rights laws that have failed substantively but that have had a profound impact on race relations, on the use of code words to signal race, and on the politics of identity in the United States may be key to our understanding of the encrypted dehumanization of refugees. So too may economic laws and policies associated with deindustrialization and globalization and the intensified “race to the bottom” that they trigger (Carbado 2002). Indeed, it may be that issues of immigration, race, and identity are largely affected by laws and policies not

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explicitly related to them, especially in this contemporary period when race has been expelled from official discourse. If we are to understand the full complexity of the connections between immigration and race it be-

hooves us to broaden our lens—as some of the authors cited here have done—to recognize the interconnections of policy arenas and the long, sometimes circuitous, reach of law.

DISCLOSURE STATEMENT


The author is not aware of any biases that might be perceived as affecting the objectivity of this review.

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Le Espiritu Y. 2003. Home Bound: Filipino American Lives across Cultures, Communities, and Countries. Berkeley: Univ. Calif. Press Lee E. 2003. At America’s Gates: Chinese Immigration During the Exclusion Era, 1882–1943. Chapel Hill: Univ. N. C. Press Lowe L. 1996. Immigrant Acts: On Asian American Cultural Politics. Durham, NC: Duke Univ. Press Matsuda M. 2002. Beyond, and not beyond, black and white: deconstruction has a politics. In Crossroads, Directions, and a New Critical Race Theory, ed. F Valdes, JM Culp, AP Harris, pp. 393–98. Philadelphia, PA: Temple Univ. Press Melossi D. 2000a. Alla ricerca di una ‘vita tranquilla’: immigrazione, criminalitá e Italian way of life. Quad. di Cittá Sicure 1:17–69 Melossi D. 2000b. The other in the new Europe: migrations, deviance, social control. In Criminal Policy in Transition, ed. P Green, A Rutherford, pp. 151–66. Oxford: Hart Merry SE. 2003. Christian conversion and ‘racial’ labor capacities: constructing racialized identities in Hawai’i. In Globalization under Construction: Governmentality, Law, and Identity, ed. RW Perry, B Maurer, pp. 203–38. Minneapolis: Univ. Minn. Press Mink G. 1986. Old Labor and New Immigrants in American Political Development: Union, Party, and State, 1875–1920. Ithaca, NY: Cornell Univ. Press Minow M. 1997. Not Only for Myself: Identity, Politics & the Law. New York: New Press Morsy SA. 1996. Beyond the honorary ‘White’ classification of Egyptians: societal identity in historical context. See Gregory & Sanjek 1996, pp. 175–98 Ngai MM. 2004. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, NJ: Princeton Univ. Press Omi M, Winant H. 1994. Racial Formation in the United States. New York: Routledge Ong A. 1999. Cultural citizenship as subject making: immigrants negotiate racial and cultural ´ boundaries in the United States. In Race, Identity, and Citizenship, ed. RD Torres, LF Miron, JX Inda, pp. 262–93. Malden, MA: Blackwell Ong A. 2003. Buddha is Hiding. Berkeley: Univ. Calif. Press Perea JF. 1997. The black/white binary paradigm of race: the ‘normal science’ of American racial thought. Calif. Law Rev. 85:1213–58 Portes A, Rumbaut RG. 2001. Legacies: The Story of the Immigrant Second Generation. Berkeley: Univ. Calif. Press Reimers DM. 1998. Unwelcome Strangers: American Identity and the Turn against Immigration. New York: Columbia Univ. Press Roberts K. 1922. Why Europe Leaves Home. London: T. Fisher Unwin Rodr´ıguez CE. 1996. Challenging racial hegemony: Puerto Ricans in the United States. See Gregory & Sanjek 1996, pp. 131–45 Roediger DR. 1999. The Wages of Whiteness: Race and the Making of the American Working Class. London: Verso ˜ R. 2001. Servants of Globalization: Women, Migration and Domestic Work. Salazar Parrenas Stanford, CA: Stanford Univ. Press Salyer LE. 1995. Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law. Chapel Hill: Univ. N. C. Press Sandmeyer EC. 1939. The Anti-Chinese Movement in California. Urbana: Univ. Ill. Press San Francisco Customs Official. 1883. Letter to Secretary of the Treasury. National Archives, Record Group 85, Entry 134, Box 2. Washington, DC Saxton A. 1971. The Indispensable Enemy: Labor and the Anti-Chinese Movement in California. Berkeley: Univ. Calif. Press www.annualreviews.org • Immigration Law, Race, and Identity

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Simmel G. 1950. The Sociology of Georg Simmel. New York: Free Press Smith RC. 2006. Mexican New York: Transnational Lives of New Immigrants. Berkeley: Univ. Calif. Press Stoddard L. 1920. The Rising Tide of Color against White World-Supremacy. London: Chapman & Hale Stoler AL. 1997. Racial histories and their regimes of truth. In Political Power and Social Theory, ed. D Davis, 11:183–206. Ann Arbor, MI: JAI Suárez-Navaz L. 2006. Rebordering the Mediterranean: Boundaries and Citizenship in Southern Europe. New York: Berghahn Books Tilly C. 2006. Why? Princeton, NJ: Princeton Univ. Press Trucios-Haynes E. 1997. The legacy of racially restrictive immigration laws and policies and the construction of the American national identity. Oregon Law Rev. 76:369–424 Tuan M. 1998. Forever Foreigners or Honorary Whites? The Asian Ethnic Experience Today. New Brunswick, NJ: Rutgers Univ. Press. USA Today. 2005. Americans Open Doors to Katrina Refugees. USA Today. Sept. 5, p. A1 Vickerman M. 2001. Tweaking a monolith: the West Indian immigrant encounter with ‘Blackness’. In Islands in the City: West Indian Migration to New York, ed. N Foner, pp. 237–56. Berkeley: Univ. Calif. Press Waldinger R, Lichter MI. 2003. How the Other Half Works: Immigration and the Social Organization of Labor. Berkeley: Univ. Calif. Press Waters MC. 1999. Black Identities: West Indian Immigrant Dreams and American Realities. Cambridge, MA: Harvard Univ. Press Yin XH. 2005. Writing a place in American life: the sensibilities of American-born Chinese as reflected in life stories from the exclusion era. In Chinese American Transnationalism, ed. S Chan, pp. 211–36. Philadelphia, PA: Temple Univ. Press


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Accountability, Quantification, and Law Wendy Nelson Espeland and Berit Irene Vannebo Department of Sociology, Northwestern University, Evanston, Illinois 60208; email: [email protected], [email protected]


Key Words

First published online as a Review in Advance on June 21, 2007

quantitative authority, professional discretion, sentencing guidelines, regulatory impact assessment, law school rankings

The Annual Review of Law and Social Science is online at http://lawsocsci.annualreviews.org This article’s doi: 10.1146/annurev.lawsocsci.2.081805.105908 c 2007 by Annual Reviews. Copyright All rights reserved 1550-3585/07/1201-0021$20.00

Abstract Accountability can mean many things, but increasingly it is linked to quantification. This is true in many fields, including law. This review considers how the recent emphasis on quantitative accountability has influenced law and legal practices. Rather than offering a broad survey of quantitative techniques deployed in law, the article examines three legal contexts in which quantification has shaped how actors are held accountable: sentencing guidelines, cost-benefit analysis in regulation, and law school rankings. The conditions that promote rigorous quantification, its effects on professional discretion, relations of authority, and resistance are examined. The article suggests fruitful questions and strategies for analyzing more broadly the effects of quantification in law.

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INTRODUCTION


Accountability is an old idea. As von Dornum (1997, p. 1483) argues, the ancient Greeks were “obsessed with keeping their officials legally accountable for their actions in office,” and as early as the eighth century BCE, long before the emergence of classical Athenian democracy, there was an important archaic ideology of accountability emphasizing rectitude, visibility, and participation that regulated official conduct. The meaning of accountability has changed historically, but it has often been associated with governance, in which those with political power must somehow justify their actions to those subject to their power. The idea of accountability, broadly construed, is fundamental to much law. Law is a site for interpreting accountability, a vehicle for establishing it, and sometimes its target. Accountability in law is conceptualized differently, but a great deal of law is intended to hold people and institutions responsible for their actions and accessible to their constituents. Law creates the infrastructure for political accountability and representation in government. Public international law plays a parallel role at the global level, creating rules of conduct for states and international organizations. Tort law creates and enforces the concept of liability. In the United States, the standard of the “reasonable person” helps define situations in which people are responsible for harm done resulting from their actions. Law of fiduciaries describes the duties of trustees who act on behalf of individuals or institutions. Contracts hold people and organizations responsible for doing what they say they will. Accountability is also central to criminal law, which determines the conditions under which people are held responsible for the crimes they commit. If someone is acting in self-defense, if their actions are unintended, or if they are mentally incompetent, their accountability is mediated. Law provides a rich and diverse language of accountability.

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Understood as creating responsible people and accessible, responsive institutions, accountability is obviously a desirable goal. But the terms of accountability are dynamic and contested, and accountability can take on a more ominous tone. “Technologies of audit and accountability” create “new forms of governance and power” (Shore & Wright 2000, p. 57) and can consume vast resources; they produce unintended and sometimes harmful consequences; and they can transform the institutions and the self-conceptions of the people they target, sometimes in undesirable ways. Because accountability is such a sweeping idea, we offer a highly selective treatment. We begin by describing three related trends. First, interest in accountability, especially in the past two decades or so, has increased dramatically. Second, its meaning is generalized beyond governance narrowly construed and is now associated with monitoring the performances of actors in many institutions. Third, accountability has become more closely associated with quantification and measurement. After briefly describing the first two trends, this article focus on the third, considering how the recent emphasis on the construction of accountability as forms of measurement has influenced law and legal practices. Rather than offering a broad survey of the various quantitative techniques deployed in law, we offer examples of how quantification has shaped how legal actors are held accountable in three different contexts, sentencing guidelines, the use of cost-benefit analysis (CBA) in regulation, and media rankings of law schools, focusing more closely on the first. Our examples are intended to be suggestive; by highlighting important dimensions and effects of quantification in these legal practices, we hope that other scholars will investigate similar or divergent patterns in other contexts. We conclude by identifying some conditions that mediate the flow of quantitative authority in law and suggest some fruitful questions that scholars might pursue.

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Figure 1 Graph based on Library of Congress records, created by counting legislation with “accountability” and “act” in the title from 1989–2006. Acts introduced in both the House and Senate are counted only once.

TRENDS IN ACCOUNTABILITY Accountability has become a term to reckon with. For Williams (1976), a word or expression becomes a keyword when it dominates an issue or area, synthesizes or symbolizes a world view, or serves as a site of struggle over the meaning of goals or practices.1 Accountability is a keyword in politics and policy. Demands for greater accountability are routine features of media, scholarship, and legislation. Efforts to promote a wide range of desired characteristics including excellence, productivity, efficiency, transparency, and justice are now often framed in terms of accountability. Accountability, it seems, has become an allpurpose solution to many problems. The emergence of this trend varies by field. In U.S. education, Ohmann (2000) sees the 1970s as a pivotal moment for rising interest in accountability. Many scholars note a mounting concern with accountability since the mid-1980s. Power (1997, p. 3) points to an explosion in the term “audit” in the UK in the 1980s and 1990s, with more people subject to formalized styles of checking that involve creating verifiable accounts of behavior. For 1

Emanuel & Emanuel (1996, p. 229) make this point about accountability in health care. Shore & Wright (1999, p. 558) describe audit as a keyword.

Strathern (1996, p. 1), “Audit and assessment seem the ubiquitous tools of accountability,” and many see this audit explosion as reflecting and fostering the spread of a global “audit culture” (Strathern 2000, Shore & Wright 1999). In the United States, this increasing concern with accountability is reflected in legislation. Figure 1 shows a steady increase in the number of acts with accountability in the title introduced in Congress since 1989. The range of these bills is impressive, from the Federal Reserve Accountability Act to the Bounty Hunter Accountability and Quality Assistance Act. Because bills may be introduced for purely symbolic reasons, the introduction of legislation is an imprecise indicator; yet it seems significant that sponsors reframed legislation in terms of accountability. Accountability is often associated with responsive political leaders and governmental institutions, but interest in accountability encompasses many different institutional domains. Few organizations and professionals are now exempt from pressure to demonstrate accountability, and law often mediates the terms of accountability. Laboratory scientists, for example, recently entered into complex negotiations with regulators about how to comply with environmental laws, the

www.annualreviews.org • Accountability, Quantification, and Law

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results of which may introduce “audit culture into the heart of modern science” (Silbey 2003, p. 3). Human rights advocates are under pressure to create indicators to hold states accountable (Rosga & Satterthwaite 2003). In 2005, 11 NGOs signed the International Non-Governmental Organisations Accountability Charter to demonstrate their commitment to transparency and accountability. Corporate and accounting scandals at firms such as Enron, WorldCom, and Tyco prompted Congress to pass the Sarbanes-Oxley Act in 2002 to improve financial disclosure and corporate governance. Beginning in New York in 1994, states began issuing public scorecards for physicians and hospitals performing coronary artery bypass surgery or angioplasty. Evidence about the scorecards’ effects is mixed (Epstein 2006), but one study finds that they influence clinical decision making; 79% of the New York cardiologists reported that their decision to perform angioplasty or to intervene in critically ill patients was influenced by scorecards (Narins et al. 2005). As these examples suggest, the stakes of accountability are often high. Accountability is a variable social and ethical relationship, and its terms are often ambiguous, hotly debated, and linked to diverse practices. Accountability can be informal or formalized, grounded in discretion, expertise, or standardized routines. It has been associated with voting, responding to constituents, and informing consumers; it is enacted with guidelines, inspections, certification, and public forums or even by carefully listening to clients. But, increasingly, pressures for accountability are linked to formalized quantitative measures that are designed to evaluate performances, facilitate decision making, or constrain discretion. Measures like costbenefit ratios, performance indicators, rankings, benchmarks, scorecards, and standardized tests are used to evaluate behavior and explain decisions of many different organizational actors. Numbers circulate easily and make possible “government at a distance” (Miller & Rose 1990, p. 9).


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CBA, for example, was first widely adopted by the Army Corp of Engineers and the Bureau of Reclamation (cf. Porter 1995, pp. 148–89). When disputes between these rival federal agencies generated embarrassing differences in the calculations of benefits for the same water project, with each agency’s benefits reflecting their specialty, Congress responded with the Flood Control Act of 1936. This law required agencies to show that the benefits of proposed plans for federal water development exceeded their costs, which led to a dramatic expansion of benefits attributed to water development. It took decades for methods for conducting CBA to become more standardized, but now CBA is so naturalized that it has become the dominant logic of government. The spread of quantitative measures is especially pronounced in health care. Physician scorecards are one example of this trend. The introduction of managed health care plans in the United States in the 1970s increased demands for information about the quality and affordability of health care plans. For example, in 1995, the Foundation for Accountability was created to evaluate performance measures for health care plans and to lobby for more accountable health care. If, as Hoffer (2000, p. 529) suggests, accountability is understood as providing reasons for policies, schools have always been accountable in some fashion. But accountability in education has become more formalized in the past 20 years with the growing use of measurable outcomes, increasingly defined by scores on standardized tests. In the 1950s, standardized tests were used mainly to characterize and place students; however, this changed dramatically after the 1983 report A Nation at Risk (Natl. Comm. Excellence Educ. 1983) portrayed failing schools as threatening economic viability and pushed for more standardized assessments (Hoffer 2000, p. 533). Standardized testing was increasingly linked to teaching practices, which supporters refer to as measurement-driven instruction and critics call teaching to the test. Tests


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are now used to evaluate schools and school systems, as well as students, shifting attention from individuals to institutions. The No Child Left Behind Act of 2001 amplified these trends. What explains this proliferation of quantitative measures? Why has accountability become so aligned with measurement? Reasons for quantitative accountability vary across fields, but explanations often emphasize several conditions. For Porter (1995), the spread of quantification in decision making reflects pressures for “mechanical objectivity,” forms of standardized knowledge that constrain the local, subjective, and personal. Rigorous quantitative methods entail highly structured rules for manipulating numbers, numbers that require enormous labor, coordination, and discipline to produce. Mechanical objectivity both shapes and reflects particular administrative and political cultures. Pressure for mechanical objectivity arises when decisions are subject to public scrutiny, especially from powerful outsiders, when there is conflict, when elites or experts are distrusted, or when communities must coordinate across social or geographical distances. Mechanical objectivity confers a robust, defensible authority because it makes the biases or personal characteristics of those making decisions less relevant. The loss of autonomy explains why mechanical objectivity is usually imposed on decision makers who cannot defend their authority, groups Porter characterizes as weak elites. Under these conditions, trust in persons is replaced by trust in numbers. Others also see trust as mediating demands for accountability. Power (1997, pp. 134–35) views the emergence of the “audit society” as responding to a desire for the reassurance that ritualized monitoring provides. Auditing, which relies heavily on quantitative assessments, replaces trust in particular people with trust in auditing organizations, a shift comparable to Porter’s. Ranson (2003, p. 460) suggests that different methods for ensuring accountability represent different ways of “securing trust in the public sphere.”

Other scholars emphasize neo-liberal politics as an impetus for accountability and quantification (Power 2003, p. 191). Neoliberalism is both a source of distrust and a set of strategies for securing it. Shore & Wright (1999) trace the audit explosion in Britain to the conservative Thatcher regime and its efforts to shrink the welfare state. Proponents assumed that market controls were superior to bureaucratic ones. After privatizing a broad array of public services, the shrunken public sector was subjected to techniques of accountability that characterized the private sector. Accountancy and audits became vehicles for inserting the practices and norms of the private sector into the public realm. Building on Foucault, Shore & Wright (2000, p. 61) describe this regulation as “neoliberal governmentality” in which demands for accountability are manifest as “political technologies” and market norms organize the economy, the state, and even “the conduct of individuals.”2 The paradoxical effect of this was an extraordinary expansion of governmental regulation. International financial institutions such as the World Bank and the International Monetary Fund, in pressuring member countries for transparency and accountability, have also contributed to the proliferation of quantitative measures. Having described reasons for the proliferation of quantitative accountability, we now turn to its implementation in law.

FEDERAL SENTENCING GUIDELINES Sentencing guidelines are one area where quantification has deeply affected legal practices. Guidelines are a vivid example of efforts to create quantitative accountability. Creating more uniform sentences for those committing similar crimes was a central goal for

2

Rose et al. (2006) see affinities between neo-liberalism and some techniques of governmentality but caution that the broad category of neo-liberalism obscures the specificity and vibrancy of governmentality.


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sentencing guidelines. A key strategy for doing so was to limit the discretion of judges in sentencing people convicted of crimes. Although the language of accountability was not used to promote sentencing guidelines, the motives for guidelines are similar to the goals for accountability as it is commonly discussed today: Guidelines were intended to improve sentencing performance, provide oversight, make sentencing a more visible and reviewable process, and create uniformity (supporters eventually did adopt the language of accountability and transparency to defend them). Quantification is fundamental in federal sentencing guidelines as a technique for simplifying and classifying the characteristics of offender’s and their crimes and as a means of restricting the range of sentences. Policy makers have tried to constrain discretion in different jurisdictions with laws requiring mandatory minimum sentences, standardizing parole practices, and abolishing parole, but federal sentencing guidelines have been the most transformative and controversial pieces of sentencing policy. Federal sentencing guidelines are a product of the Sentencing Reform Act (SRA) that was part of the Comprehensive Control of Crime Act of 1984 (many states have imposed sentencing guidelines, but we focus on federal sentencing guidelines). The SRA abolished parole, made the sentences issued by district court judges reviewable by appellate courts, and created a new, independent administrative agency in the judicial branch, the U.S. Sentencing Commission (SC). The SC was charged with creating and implementing sentencing guidelines. The guidelines established by the SC in 1987 were mandatory until the Supreme Court ruled them unconstitutional in United States v. Booker (2005), which made the guidelines advisory. Guidelines were ruled unconstitutional for violating the Sixth Amendment right to trial by jury because they allowed judges to include facts in sentencing decisions that had not been presented to a jury. Both critics and supporters agree that


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sentencing guidelines have had a profound influence on the practice of federal criminal law. For Stith & Cabranes (1998, p. xi), they initiated a “revolutionary new system for punishment of federal crimes”; Bowman (1996, p. 680) contends that “[o]ne can hardly overstate the significance of the Guidelines, not merely for judges and judging, but for every aspect of federal criminal practice.” For most of the twentieth century, U.S. sentencing policies were informed by a penal philosophy emphasizing rehabilitation rather than retribution. Rehabilitation required that sentences be individualized to reflect the characteristics of the offender and the crime that was committed. Sentences were indeterminate in several senses. Sentences could be unpredictable because judges had broad discretion in issuing sentences. As long as they remained within statutory limits, there were almost no constraints on judges in sentencing. Furthermore, discretionary sentencing, was made more uncertain by parole officers’ modifications of prison sentences. Beginning around the mid-1960s, indeterminate sentencing came under fire from critics who objected to what they saw as disparate and irrational sentences that judges imposed on offenders committing similar crimes [Koh (1992), Bowman (1996), Stith & Cabranes (1998), and Nagel (1990) give useful summaries of the sentencing reform movement and the legislative history of the SRA]. Supporters of sentencing reform included a broad assortment of people, including academics, politicians, law enforcement, and even some judges, most notably Marvin Frankel (1973). On the left were those who believed that the sentence disparity reflected discrimination based on race or poverty, who advocated prisoner’s rights, and who believed judges were too punitive and too reliant on prison as punishment. On the right were those who considered judges and parole boards too lenient, who thought sentences were too uncertain, and who saw the rising crime rate as evidence of a failing criminal justice system. A strong consensus emerged that rehabilitation


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was not working and that discretion, especially judicial discretion, should be curtailed. Passing the SRA was the major achievement of the sentencing reform movement. Senator Ted Kennedy, its original sponsor, had introduced multiple versions of the bill since 1974. After important modifications, the SRA enjoyed strong bipartisan support. President Reagan signed the law in 1984 and appointed the first sentencing commissioners. Part of the law’s appeal was in demonstrating toughness on crime when crime control was deeply politicized. One of the main goals for the law was to “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” [18 U.S.C. §3553 (a)(6)]. The legislative record makes clear that constraining judicial discretion was seen as vital to this goal. The SC took this position to heart in issuing its guidelines.

How Sentencing Works Under the Guidelines Sentencing under the guidelines culminated in the Sentencing Table, which defines for district court judges the range of sentences for offenders (U.S. Sentencing Commission 2006, p. 381; all examples are from this edition). The vertical axis of the grid measures the seriousness of an offender’s current crime based on 43 offense levels. The horizontal axis measures an offender’s criminal record based on a scale of 1–6. The intersection of these two points determines the guidelines range for the sentence, expressed as months of prison. Judges decide within that range how long a sentence to impose. The SRA restricts the guideline range so endpoints cannot vary by more than 6 months or 25%. Along both axes, bigger numbers mean longer imprisonments. At first blush, the one-page Sentencing Table seems straightforward. That impression is incompatible with using the table. Identifying the boundaries among the 258 boxes that comprise the grid is a daunting challenge. This is borne out by the enormous Sentenc-

ing Guidelines Manual that provides the instructions for how to calculate the offense level and the criminal history (the 2006 Guidelines Manual, including the appendices, supplements, and index, exceeds 1800 pages; the 2005 paperback edition weighs more than 5 pounds). Offense level is determined by three factors: the base offense level, the specific offense characteristics, and adjustments (Bowman 2005, p. 1325). Offense conduct is divided into 18 categories of offense, which are subdivided into 53 additional categories. For each category of crime, the guidelines identify a number that constitutes the base offense level, a ranking that represents the seriousness of the statutory crime of conviction. Depending on the specific offense characteristics, the baseline number is adjusted, usually upward, according to the number of points assigned to that offense characteristic. For example, the base offense level for aggravated assault is 14 (§2A2.2). There are six offense characteristics for aggravated assault. If the assault involved more than minimum planning, two levels are added. If a victim sustained bodily injury, three levels are added; if the injury is permanent or life threatening, seven levels are added. The horizontal axis quantifies a defendant’s criminal history. The six levels of criminal history are determined by the criminal history points a defendant is assessed for prior convictions. A defendant gets 3 points for each prior prison sentence that exceeds 13 months, or 2 points for sentences of more than 60 days but less 13 months (§3E 1.1). Adjustments are modifications of the offense level that reflect characteristics that may apply to many kinds of offenses (§3.2). Adjustments are based on characteristics of the victim (e.g., a government official), the role a defendant played in committing the offense (e.g., a leader), or whether the defendant was obstructing justice or was convicted of multiple counts for the same crime. The most common adjustment is to decrease the level of offense by one or two levels for defendants who accept responsibility for their crimes (e.g.,


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plead guilty), but most other adjustments increase offense levels. The guidelines also describe the limited circumstances that permit a judge to depart from the proscribed sentence. Departures are generally discouraged by the guidelines (Stith & Cabranes 1998, pp. 72–77); for example, aggrieved parties can appeal departures but not sentences within guidelines ranges, which makes district judges cautious. Factors that previously informed sentencing are forbidden under the guidelines. A defendant’s age, charitable work, health, military service, family responsibilities, or employment history cannot be the basis for departures. If an offender provides substantial assistance to law enforcement, prosecutors may recommend a downward departure. The guidelines also permit departures if the criminal history category does not accurately represent someone’s criminal history; however, downward departures are more restricted than upward departures. Since Booker, departures are less scrutinized. This brief overview makes clear two features of guidelines. First, extraordinary effort and resources were required to promote and create uniform sentencing. The political desire for uniform sentences was the product of a broad social movement. Locating and excising sources of unwarranted discretion involved the sustained involvement of Congress and the Department of Justice and the creation of a new, well-staffed, and well-funded bureaucracy. Second, quantification is central to guidelines. As Stith & Cabranes (1998, pp. 68–69) put it, “The most common offense characteristic found in the Sentencing Guidelines is quantity . . . . [T]he severity of a sentence is heavily dependent on quantifiable factors such as the amount of drugs. . ., the amount of money stolen. . ., or the number of unlawful aliens.” Quantification, with its long, complex association with bureaucratic authority, was the master strategy the SC used to contain discretion and rationalize criminal law. Quantification integrated disparate and often piecemeal federal criminal law by mak-


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ing commensurate the crimes and criminal histories of all convicted defendants and the harm done to victims. This quantification demanded radical simplification of the context of criminality and the people involved, simplification that was hardly simple to create because it was sustained by an elaborate edifice of definitions, classifications, commentary, and rulemaking. But sentencing uniformity is a moving target, requiring constant vigilance. As new crimes, new laws, and new characteristics of people become germane, categories must be expanded and articulated. The length of the guidelines has more than tripled since they were first issued. The dynamism of criminality along with a Congress devoted to conspicuous if not always effective displays of law and order continually threaten to overwhelm aspirations for comprehensive classification. The pursuit of a “gapless” formal rationality in sentencing, to use Weber’s terminology, turned out to be a frustratingly elusive and costly aim.

The Guidelines in Practice The challenge of interpreting the guidelines parallels the complexity of creating them. Judges across the political spectrum complained bitterly about how difficult it was to use the guidelines. In 1994, Stephen Trott (reprinted in Trott 1995) wrote a rather desperate letter to Richard Conaboy, chairman of the SC. As associate attorney general under Reagan, Trott was a strong proponent of guidelines and helped design them. Six years after serving as an appellate judge, he describes the guidelines as “impossible and unnecessarily complicated,” a “cure that is worse than the disease.” Trott concludes, “[W]e have to give more latitude to sentencing judges, and then within reason trust their judgment” (emphasis in original). Margolick (1992, p. 1) summarized judges’ reactions: “They complain that the new approach has taken the judging out of judging and replaced it with an oppressively mechanistic regime, one with the abstruseness of the Internal Revenue Code


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and overtones of Franz Kafka, George Orwell and Rube Goldberg.” Judges were not the only group to condemn the guidelines. After nearly 20 years of experience with the guidelines, observers and practitioners express strong consensus that as practiced they are a resounding failure. Most see the reform movement as addressing serious problems, and many agree that the SRA “brought law and due process” to sentencing (Bowman 2005, p. 1327). Even the harshest critics believe that appellate review of sentencing decisions has improved accountability in sentencing (Stith & Cabranes 1998, pp. 170– 72). But now even former supporters conclude that the guidelines require fundamental reform (Bowman 2005). Notable exceptions to this consensus include top officials in the Department of Justice, conservative members of Congress, and SC members (Tonry 1996). Diagnoses of guidelines failure vary, but most commentators agree that the guidelines are too mechanistic and often produce unfair, incoherent sentences. Most commentators think that for structured sentencing to work the system must seem legitimate to those who execute it. Because judges pronounce sentences for particular persons rather than abstract classes of criminals, their greater knowledge of offenders’ lives and crimes means they are often more concerned with the distributive effects of sentencing than those more remote from defendants (i.e., appellate judges, the SC, the Justice Department, or Congress). If sentencing judges (and prosecutors) feel that the sentences dictated by the guidelines are unfair, they may try to circumvent them to produce more appropriate outcomes (cf. Freed 1992, Koh 1992, Tonry 2005, Bowman & Heise 2001). Others suggest that the political influence of Congress and the Justice Department over the SC undermined the autonomy that the SC needed to monitor the guidelines and make corrections (Bowman 2005, Tonry 2005). Critics point to severe drug sentences as one example in which politics prevented necessary amendments. Some blame the sen-

tencing guidelines, characterizing them as an unaccountable bureaucracy (Stith & Cabranes 1998); problems at the SC include commissioners’ efforts to curry political favor to advance their careers (Tonry 2005), ignoring some SRA directives while going beyond others (Miller 2004), and failing to justify their decisions (Koh 1992). Others see even more fundamental problems with the guidelines. Stith & Cabranes (1998, p. 172) reject the core premise of the guidelines that disparity reflects systemic judicial biases and that efforts to produce a “mechanical” uniformity across judges promotes fairness or justice. Even if the diagnoses of guidelines failure are still debated, many of their effects are not. Everyone agrees that the rehabilitative model has been discarded and that the guidelines have sharply curtailed judicial discretion. Judges’ formal discretion is relegated to the range within categories defined by the grid. As Bowman (2005, p. 1333) points out, the more complicated the grid, the more severely judicial discretion is constrained because more boxes create finer distinctions in sentencing ranges. It is also indisputable that guidelines have propelled the explosion of prison populations in the United States. Under the guidelines regime, more defendants are incarcerated, they are issued longer sentences, and they serve longer portions of their sentences. Blumstein & Beck’s (1999, p. 17) analysis of the growth of prison populations concludes that the “dominant contributor to current growth for all offenses is time served.” Scholars and practitioners also agree that the guidelines have not eliminated discretion in sentencing but have merely shifted its location and form. Prosecutors can now largely determine sentencing because they control which and how many charges to file; prosecutors also largely determine which facts about a defendant’s crime and criminal history are relevant to sentencing, resulting in fact bargaining; and prosecutors control whether to file a substantial assistance motion that permits downward departures. As Miller (2004, p. 1252) puts it, “The overwhelming and


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dominant fact of the federal sentencing system. . .is the absolute power the system has given prosecutors over federal prosecution and sentencing. There is a lot of evidence to support this claim but it can be demonstrated with one simple and awesome fact: Everyone pleads guilty.” The role of defense attorneys and probation officers has also changed since the guidelines. Instead of offering guidance to judges, probation officers now prepare the presentence reports that the guidelines require. These reports help establish the facts of the case and include the sentence as calculated by the officer on the basis of those facts. Because parole officers typically have no formal legal training (most are social workers), some see this independent fact-finding as inappropriate (Stith & Cabranes 1998, pp. 85–91). Defenders now warn clients not to speak with probation officers for fear that their disclosures may influence their sentence. Because defendants are rewarded for accepting responsibility, which is broadly defined as pleading guilty, they must now choose between a vigorous defense and the promise of a shorter sentence, which diminishes the role of defense attorneys and can potentially subvert a defendant’s right to counsel (Etienne 2004). Scholars disagree about other consequences of guidelines, including their impact on sentencing disparity. An SC study (U.S. Sentencing Commission 2004) finds that guidelines have reduced some disparity among judges and between regions for most types of crime and that, although some gender disparity remains, there is little evidence of racial or ethnic disparity. Other studies find that the guidelines appear to have reduced sentencing disparity within districts but that disparity among judges in different districts and regions remains, especially in drug sentences (Anderson et al. 1999, Hofer et al. 1999, Bowman & Heise 2001). Albonetti (1997) and Mustard (2001) find that characteristics of offenders still matter in federal sentencing (but see Blackwell et al. 2003).


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In making guidelines advisory, the Booker (2005) decision has created enormous uncertainty in sentencing. It is too soon to know how this will affect sentencing, but early evidence suggests that both sentencing judges and appellate judges still use guidelines to determine and review sentences. Regardless of Booker’s eventual impact, it is useful to ask why these legal actors were the target of mechanical objectivity. Does their position support or contradict Porter’s (1995) claims about the conditions that propel quantification in decision making? The reactions of federal judges support Porter’s basic point that mechanical objectivity is typically imposed on rather than embraced by actors. Although some judges, Frankel (1973) most prominently, supported sentencing guidelines, most were skeptical, and their objections increased with experience. Yet we do not typically think of federal judges as the weak elites that Porter characterizes as the targets of mechanical objectivity. How do we reconcile their status with their vulnerability? One response involves examining the distinctive role of federal judges. Judges are not supposed to act like politicians, and most refrain from direct engagement in politics. Also, during 12 years of Republican presidents (1981–1993), many judges supporting judicial restraint were appointed, a philosophy that is hard to reconcile with conflict over congressional directives. Consequently, judges are typically constrained in their pronouncements about legal issues. Few judges testified about the proposed guidelines during hearings for the SRA. Their more circumspect politics was poorly suited for the macho one-upsmanship of “tough on crime” politics. Furthermore, it was too easy to portray judges’ objections in an unflattering light: as fearing change, resenting their loss of discretion, and protecting their self-interest. Of course, judges are not immune to politics. Lifetime tenure is intended to buffer federal judges from the sway of partisan politics, but ambitious judges are mindful of the political


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ramifications of their decisions. The same holds true for members of the SC and the Department of Justice. The political predispositions and the political savvy of these actors help explain the trajectory of amendments toward harsher sentences and tighter control, which clearly reflected the wishes of Congress and the Department of Justice (Stith & Cabranes 1998, pp. 49–66; Tonry 2005). The political appeal of sentencing reform was another important factor in judges’ vulnerability to guidelines. Crime is highly publicized and politicized in the United States, a standard trope in popular culture and the object of much academic research. High-profile crimes attract broad media attention, and public conflict over the rights of victims and defendants is common. Crime politics plays to media strengths and public fears, which can be manipulated. Being perceived as tough on crime is politically expedient while being weak on crime is disastrous, especially for Democrats. Also, sentencing reform is an issue that spans many cleavages. Conservative Republicans and liberal academics supported the SRA. Each constituency could, in the abstract, project onto the SRA the outcomes it most desired. When comparing sentencing decisions with less visible legal practices, it is less surprising that they were a site for intervention.

Quantification in the Guidelines Approach Why was quantification so central to the guidelines? The influence of two founding commissioners helps explain some of the sway of quantification. Paul H. Robinson is probably the commissioner most responsible for the eventual structure of the guidelines. Although Robinson was the lone dissenter in the final guidelines adopted, their structure nonetheless responded to his vision. A law professor with a utilitarian and retributional philosophy of sentencing, Robinson argued that every increment of harm caused by a crime should

correspond to an increment of punishment. This stipulation required an overarching sentencing calculus of harm and punishment in which each mediating factor is prescribed some quantitative weight. Michael Block, a professor of economics, argued that efficiency should be the goal of sentencing, balancing the social costs and benefits of sentencing. Neither could convince their colleagues to adopt their sentencing philosophy as the guiding principle of the guidelines, but their commitment to quantification as the medium for expressing variation in both harm and mediating circumstances was adopted (Nagel 1990; Stith & Cabranes 1998, pp. 51–59). Other factors also enhanced the appeal of rigorous quantification. The broad authority we grant to numbers is surely relevant. We tend to see numbers as more objective than other forms of information, perhaps because of their association with the rigors of mathematics and science. We believe that rules for deriving numbers are more constraining, less easy to manipulate, than are rules for other forms of expression. Organizational scholars know that, as information circulates, the assumptions, biases, and uncertainties that inevitably inform its production are obscured; the further that information travels from those who make it, the more certain and robust it appears. Judges who calculate sentences using the guidelines are deeply aware of their arbitrariness, but to congressmen or citizens the resulting sentences seem appropriate and considered. In Weberian terms, the legitimacy of guidelines is a by-product of standardization and impersonality that is the hallmark of bureaucratic practice. One great virtue of mechanical objectivity, as Porter notes, is that its logic is easily reproduced, which makes hard decisions easier to defend. Another reason for the emphasis on quantification in sentencing guidelines is that once it is generally endorsed, it privileges things that are easy to measure. Consequently, the amount of money, the weight of drug, or the number of past criminal events weigh so


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heavily under guidelines. Despite the absurdities of a drug sentence in which the medium on which a drug is sold—sugar cube or tablet— can mean the difference in years of prison, measures beget measures. The guidelines profoundly affected relations of authority in criminal justice. Judges lost autonomy in relation to prosecutors and parole officers, but there are other important actors to consider. First, the SC itself had wide latitude in implementing the guidelines, especially the founding members. Congress set constraints on their discretion, but they gained control over the terms and structure of sentencing. The SC was responsive to the directives of Congress, which had formal oversight, and to the Justice Department, which had an official advisory role and was a nonvoting member, but the SC also clearly gained power over judges. The guidelines provided Congress with a useful vehicle for expressing its concern with crime because it must approve amendments to the guidelines annually (Bowman 2005). Furthermore, the statistics the SC produced provided a new kind of scrutiny for Congress, one that made it easy for Congress to assess the performance of judges by monitoring their use of the guidelines, the rate of departures, and so forth. And the executive branch via the Justice Department could easily make its interests known through its advisory role. Although curtailing judicial discretion was a goal of sentencing reform, the increased power of prosecutors and probation officers and the diminished roles of defense attorneys were unintended consequences. One important aspect of these shifts is that they disperse discretion, making it less visible than in the past (Stith & Cabranes 1998, p. 127). Plea bargaining, fact bargaining, pressure to plead guilty, and the production of presentencing reports are practices that are harder to scrutinize than the sentencing decisions judges render publicly. If, prior to guidelines, judges had “unfettered discretion,” at least one advantage of this is that it was clearer who was responsible for the sentence.


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The example of guidelines also suggests that we should be critical of the transparency of numbers. As the hefty guidelines manuals show, the numbers that are the end product of guidelines do not reveal the hundreds of decisions and elaborate work involved in deriving that number. The context in which numbers are produced often results in numbers that are far murkier than they appear. Quantification depends on sturdy definitions of what something is and how it should be treated, and definitions generally proliferate, as the guidelines did, when new circumstances or challenges arise. Efforts to create an encompassing system of quantification require an exacting discipline, elaborate coordination, and vast resources and, given the dynamism of human agency, can never be fully exhaustive. Many critics decried the mechanistic quality of guidelines sentencing. Instead of permitting judges to consider all the relevant factors in a particular case, judges could attend to the restricted range of guideline factors, and only in a narrowly prescribed fashion. This changed both the locus and the framework of responsibility. As Heimer & Staffen (1998) show, responsibility is an organizational as well as an individual accomplishment. Judges’ investment in a sentencing decision inevitably changes if they feel their hands are tied (Koh 1992). Responsibility shifts from judges to guidelines, from persons to numbers, becoming less contingent and more bureaucratic. Detailed knowledge of a case means that judges pronounce sentences on real persons. The connection judges feel between their decisions and the punishment meted on offenders is diminished to the extent that they feel they are not really making the decision. Discerning the effect of this is difficult, but judges may feel that they ultimately bear less responsibility for the outcome (Stith & Cabranes 1998, pp. 84, 169) Guidelines also illustrate a distinctive feature of law: Judicial decisions are subject to appeal. Law possesses a fundamental alternative to quantitative accountability because

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knowing that decisions will be scrutinized and potentially overturned by other judges encourages prudence. Critics and supporters agree that making sentencing subject to appellate review provided an important constraint on judicial discretion. Judicial review could accomplish the goals of reform without the machinery of guidelines.

COST-BENEFIT ANALYSIS AND REGULATION Regulation is another part of law that has been profoundly affected by efforts to construct quantitative accountability. Since the Kennedy administration, the executive branch has tried various strategies to curb the discretion of federal agencies, limit regulation, and force agencies to be more accountable for their decisions. Most strategies involved requiring agencies to conduct some version of CBA of proposed regulations. These regulatory impact analyses (RIA) were supposed to discourage agencies from excessive regulation and encourage more transparent, rational, and accountable rulemaking. Most scholars agree that RIA has not accomplished those goals, but after decades of debate they still disagree about its potential to do so. The Flood Control Act launched CBA in federal agencies, but the practice of CBA did not spread much beyond the water development agencies until the 1960s, when Robert McNamara initiated the Planning Programming Budgeting System (PPBS) in the Defense Department. PPBS was a tool for comparing the costs and benefits of alternative plans. President Johnson, impressed by the success of PPBS in the Defense Department, soon required all executive agencies to use it. This directive failed, mainly due to strong opposition from agencies, but the idea that CBA could rationalize decision making remained alluring to policy analysts (Fuchs & Anderson 1987, p. 25). The 1960s and 1970s were a boom time for new regulation, much of which was aimed at protecting consumers, workers, and

the environment.3 Over time, businesses expressed their objections with increasing force. The Reagan administration’s enthusiasm for deregulation prompted the most sweeping change. The administration believed that agencies had been captured by special interest groups and partisan bureaucrats favoring costly regulation and that their influence needed to be checked (Bagley & Revesz 2006). To do so, Reagan issued two executive orders, EO12291 and EO12498. The first requires all executive agencies to perform CBA to justify all major regulations and to prove that the benefits of proposed regulations exceeded their costs. EO12291 also authorized the Office of Management and Budget (OMB) to review these analyses, delay suspect regulations, and establish guidelines for conducting these analyses. No executive agency could publish notice of proposed rulemaking before OMB reviews were complete and agencies had responded to OMB’s concerns. The second order, EO12498, required agencies to prepare a regulatory agenda that must be approved prior to proposing new rules. These reviews were performed by the Office of Information and Regulatory Affairs (OIRA), a new branch of OMB, and represented an unprecedented extension of OMB’s power as well as “cradle-tograve presidential control over the rulemaking process” (Light 1988, p. 1012). Reagan’s executive orders had the desired effect, resulting in an increased number of proposed regulations that were returned to agencies to be revised or withdrawn. For example, more than 40% of OSHA’s proposed regulations were not approved by OIRA (Weidenbaum 1997). Critics complained about the deregulation biases of OIRA and about how its reviews slowed an already cumbersome rulemaking process. Many agencies resented the new control OMB wielded over their regulatory powers, but the political mood of

3

The Environmental Protection Agency (EPA) was created in 1970, the Office of Safety and Health Administration (OSHA) in 1971, and the Consumer Products Safety Commission in 1972.


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Washington was unsympathetic (McGarity 1991, pp. 271–72). Reagan’s order prevailed for more than a decade until Clinton rescinded it. Scholars were surprised when Clinton’s 1993 EO12866 left in place the core of Reagan’s reforms. The Clinton directive emphasizes accountability and public participation in rulemaking, and, as the centralized reviewer of agency plans, OIRA retains its role as gatekeeper for new regulation. EO12866 requires agencies to identify clearly the problem any proposed regulation addresses; to analyze a range of alternative proposals, including not regulating; and, for rules costing more than $100 million, to perform CBA for each alternative, selecting only regulations with benefits outweighing costs. It also encourages risk analysis and performance-based standards. Agencies are required to consult with local governments, avoid interagency redundancies, and consider the cumulative burdens of proposed regulations. Clinton’s directive remains in effect today. The combined impact of the regulatory reforms of executive orders has been a profound reorientation of regulation, amounting to what some scholars term a “cost-benefit” state, with OMB emerging as a powerful arbiter of regulation (Sunstein 1996). Despite Clinton’s interventions, a strong antiregulatory bias still shapes OIRA reviews. As Bagley & Revesz (2006) explain, OIRA reviews CBA only to assure that costs do not exceed benefits; it rarely reviews deregulation; it does not review agencies’ failure to act; it delays regulations; because the Administrative Procedures Act does not apply to OMB, courts do not review its decisions; and ORIA need not disclose justifications for its actions. Supporters of CBA see it as a tool for improving decision making by making agencies more rational, accountable, and democratic (Hahn & Sunstein 2002, Donohue 1999, Bagley & Revesz 2006). RIA can correct cognitive biases, stimulating innovation by encouraging the development of alternative plans and simplifying complex decisions that


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otherwise would be difficult to grasp (Sunstein 2000). Others see it as an important means of disciplining agencies (Posner 2002). Yet CBA shares some of the same biases as sentencing guidelines. In forcing value to be expressed as price, CBA favors things for which prices are readily available and naturalized (Ackerman & Heinzerling 2002). Although a range of techniques for nonmarket valuation have been devised, they remain controversial. Because it is easier to measure short-term costs than to project the value of long-term benefits, CBA often underestimates the value of environmental regulation or discounts the future. It also precludes expressing some values at all; for example, when something is valued precisely because it is not subject to market relations or when values are expressed as incommensurability, CBA cannot express these values except by subverting them (Espeland 1998). And CBA presumes a sharp distinction between means and ends, evaluating only means; to the extent that it becomes the focus of attention, it shifts attention from the ends of regulation and does nothing to help reconcile conflict over goals or account for the moral dimensions of decisions (Heinzerling 2000). Like sentencing guidelines, RIA was designed to curtail the discretion of agencies and did so with a combination of quantification and review. The threat of review was a potent deterrent to new regulation, and, as the centralized arbiter of regulation, OIRA clearly gained power over agencies. In forcing agencies to submit their proposals and policy agendas to OIRA for approval, agencies are less autonomous, more accountable, and more cautious regulators. Agencies have hired more economists in response to RIA, and economists’ influences may diminish that of other disciplines. RIA, in changing how power was exercised, changed resistance. Because OMB played such a key and opaque role in mediating regulation, OMB Watch, a nonprofit advocacy organization, was created in 1983 to monitor and publicize OMB practices. Its


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expressed purpose is to “increase government transparency and accountability” to a “powerful and secretive agency.” Because CBA is now the dominant language of regulation, objections are often framed as methodological critiques rather than disputes over values, a turn favoring those with professional expertise. But by invoking the authority of science, OMB must comply with the norms of science, which leads to its own vulnerabilities. For example, when OMB submitted proposed guidelines for a standardized method for conducting risk assessment for all agencies for peer review, the National Academy of Science soundly rejected them, saying that uniform assessments were scientifically inappropriate and that OMB had overstepped its authority (Natl. Res. Counc. 2007). The language of accountability and transparency has been used on all sides of the debates about CBA and OMB’s role in reviewing agency rulemaking. As with much quantification, numbers that appear transparent on the surface can obscure the assumptions, values, uncertainty, politics, and constraints that shaped their production. With CBA, much depends on how nonmarket values are constructed, the periodization of evaluation, or how future interest rates are calculated. For example, economists have used different methods to estimate the value of preventing lead poisoning in their children. Because lead poisoning damages children’s brains, the EPA estimates the benefits of presenting this damage in terms of diminished future earnings, calculating the value as $9000 per IQ point. But another study (Lutter 2000) measures the benefits as ranging from $1100– $1900 per IQ point (these examples are from Ackerman & Heinzerling 2002). These estimates are derived from data based on parents’ willingness to pay for chelation treatment for lead poisoning. Lutter argues that this estimate is superior because it is based on observable data and that the government significantly overestimates benefits of regulating lead poisoning. However, his study does not address that chelation is an unproven treat-

ment for ameliorating lead poisoning or that the problem disproportionately affects poor families. Furthermore, neither study includes the extra cost to the state of educating children with neurological damage. If the goals of enhancing accountability were implicit in sentencing guidelines and explicit in RIA, it is revealing to consider an example in which accountability was an unintentional consequence.

LAW SCHOOL RANKINGS Legal education offers a unique venue for examining the effects of quantification on law.4 In addition to providing training, socialization, and networks, law schools are gatekeepers of the profession and key arbiters of professional status. Like most bureaucracies, numbers, whether in the form of test scores, grades, tuition, budgets, or accreditation statistics, play a pivotal role in decisions made in law schools. But in the past 15 years or so, a new number has become important to law schools: U.S. News and World Report (USN) rankings. USN began publishing its annual rankings of law schools in 1990 as part of its issue devoted to graduate school rankings. Initially, rankings did not generate much attention. A few deans denounced rankings, but most ignored them, believing they were too silly to take seriously. When deans realized that their applicants and alumni were taking rankings seriously, they were forced to as well. Deans’ first response was to fight them. Some deans unsuccessfully tried to organize a boycott of the information USN requested. Some deans lobbied USN to abandon its rankings. Others urged USN to rank only the top programs, to measure factors differently, or to include other qualities. Eventually, in 1998 law schools, through their professional organizations, commissioned a study debunking

4

This example draws on Sauder & Espeland (2006) and work done collaboratively with Michael Sauder.


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ranking’s methodology, wrote a letter sent to all students taking the law school admissions test (LSAT) to be wary of rankings, and held press conferences disparaging rankings. It was too late. Rankings found their market. Over time, the constituencies for rankings grew as new groups discovered new uses for them. Along with harried applicants who used them to decide where to apply and attend law school, many found rankings convenient and accessible markers of standing. Employers used school rankings to evaluate job candidates; faculty use them to evaluate job opportunities; central administrators use them to compare units across the university, track progress over time, or distribute resources; law schools, alumni, and law students use them for bragging rights or to assess professional status; law review editors use them to help sort submissions; and administrators, even some who criticized the rankings, use them to market their schools or lay claim on resources. The appeal of rankings seems straightforward: They provide useful information about complicated organizations to busy people. But this value belies the dramatic effects rankings have had on law schools. Rankings have affected many aspects of legal education, including admissions, budgets, program development, and employment. Few decisions are made without considering potential ramifications on rankings. As one law dean commented, “Rankings come up all the time. We’re embarrassed to admit that but it’s true. They are there lurking behind pretty much every issue” (fieldnotes, 2007). At a recent professional meeting, when a ballroom full of law professors and administrators were asked whether at their institutions most decisions included a discussion of potential ranking impacts, most raised a hand. Status is the coin of the realm in legal education, and law schools have always been stratified in ways that defined careers. There has long been agreement about the elite schools, but the relative status of most schools was ambiguous, the stuff of partisan arguments.


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In formalizing and publicizing the reputations of law schools, USN changed both the terms and the stakes of status for law schools. Rankings deconstruct status as discreet components rendered commensurate. The end product is that the status of each school is expressed as a precise number on a shared metric that creates a specific relationship to every other law school. This reconfiguration of the status of law schools has encouraged law schools to think and act differently. One way rankings have affected law schools is by providing strong incentives to change admissions policies. LSAT scores are an important factor in the selectivity component of rankings, and schools have used LSAT scores in admissions decisions for years. However, admissions directors report that they now weigh test scores more heavily, for fear of jeopardizing their rank. They offer merit scholarships to applicants with high scores, place lower-scoring students in part-time or evening programs where their scores do not count toward the school’s rankings, and solicit high-performing transfer students from local law schools in their second year for the same reasons. Rankings also affect how law schools allocate resources. In addition to spending money on merit scholarships, a big shift from prior practices, deans now spend much more money on marketing that is directed toward trying to influence the reputational surveys that USN sends out. Although most deans suspect this is a huge waste of money, they continue to send vast numbers of glossy brochures in an effort to boost their rank. To do so, they divert revenue from other areas, including need-based scholarships, hiring, or developing new programs. Work practices inside law schools have also changed in response to rankings. In career services, what it means to be employed has shifted. Instead of tracking how students fare in obtaining jobs in law, now any job counts. Because USN does not restrict its definitions, a school that uses a more meaningful definition will be punished in the rankings.


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Personnel also divert time from counseling students and contacting employers to tracking down graduates who fail to return employment surveys because USN assumes that three-fourths of nonresponders are unemployed. Because it is hard to verify employment statistics, the temptation to fudge the placement statistics is high. The suspicious numbers submitted by some schools suggest that not all have resisted this temptation. Consequently, there is much distrust and gossip surrounding these statistics. Rankings also shape how law school communities think about themselves because organizational status envelopes its members. Students, alumni, and faculty all feel empowered or diminished by their rank, and a downward slide is often accompanied by reactions described as “hysteria” and “demoralization.” Collective action and overt hostility have diminished over time as rankings have become normal features of law schools. Rankings are now so well institutionalized that legal educators no longer harbor hopes they will disappear. But they can still dream. As one dean quipped, “I wish Al Queda would make USN their next target.” Law schools experience many of the same effects of quantification that judges and regulators do. Rankings simplify complex organizations so that the whole field of American legal education is reduced to several pages. By necessity, rankings neglect important information. They rely on quantitative proxies for complex attributes: Student ability is captured by test scores and grade averages, good teaching by faculty-student ratios, reputation by survey responses, libraries by the number of books. Rankings exclude attributes that are hard to measure, such as the depth of community, commitment to public service, or accessibility of faculty. Rankings subvert traditional forms of professional authority. As an unwelcome intrusion foisted on schools by outsiders, and despite spirited resistance, rankings powerfully control professional status. A magazine now defines the meaning and expression of ex-

cellence in legal education. Because rankings are universalistic and based on elite standards, schools with distinctive missions are penalized in rankings that do not attend to that mission. So USN influences not only the terms of excellence and evaluation but also what a particular law school is for. Law schools are now accountable to new audiences in new ways. Rankings have succeeded in making information about law schools more accessible. Rankings circulate broadly, so distant people can easily scrutinize the performance of law schools over time and compared with each other. Deans describe how even a small downward change in rank generates enormous anxiety and demands for explanations. Applicants, law students, and alumni now feel free to challenge deans to explain their numbers, something that rarely happened before. And trustees and presidents relish having a handy disinterested measure of performance. Like sentencing tables or cost-benefit ratios, rankings look simple enough. They seem clear, reasonable, and objective, and they make visible some aspects of an organization that outsiders might otherwise have trouble seeing. But this apparent transparency is the culmination of long, complex processes of accumulating, culling, and transforming that reflects the assumptions and practices of the institutions and people who created them. This requires enormous work and coordination among large bureaucracies, including the colleges that generate the GPAs, the Law School Admissions Council that develops and administers the LSAT, and the American Bar Association that accredits law schools. The elaborate processes behind rankings are largely invisible to those who use rankings. Few students bother to examine USN’s methodology. Rankings also illustrate the moral stakes of quantification. One reason why they remain controversial is their influence over the distribution of scarce resources: access to legal education, budgets, and employment opportunities. Even more fundamentally, rankings may also subtly subvert the missions of some


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law schools or challenge broad professional values, as they punish schools who cater to disadvantaged students or schools committed to diversity or public service. In addition to these familiar effects of quantification, there are distinctive features of the accountability that rankings impose. Most importantly, rankings are relative, so the rise of one school may affect the position of many schools. This relativity is deeply fateful for schools and helps explain why rankings generated so much controversy, change, and distrust. If one school benefits by devising a new strategy to game the rankings, any school that fails to follow suit could be jeopardizing their ranking. The prisoner’s dilemma quality to rankings generates enormous pressure to scrutinize the rankings, scrutinize the schools with similar rankings, and be innovative and expansive in generating organizational statistics. It also makes collective action harder to accomplish. The media play a crucial role by amplifying the effects of rankings, often by reinforcing their tendency to become selffulfilling prophecies. As media products, rankings started with broad circulation and then expanded further as they became news reported by other media. The more visible rankings become, the more their legitimacy and influence grow. Sentencing guidelines, RIA, and rankings are three locations where quantification has dramatically changed law. But it is also important to consider, if only briefly, how law sometimes precludes quantitative practices. Supreme Court rulings on the use of racial preferences in university admissions are a good example. The 1978 Regents v. Bakke decision struck down University of California’s “inflexible quota systems” in admissions. Powell’s controlling opinion held that schools could consider race in admission decisions as one of many factors in an individualized review of applicants in order to create a diverse student body but that using quotas was unconstitutional. Race and ethnicity are “suspect classes” under the Equal Protection


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Clause of the Fourteenth Amendment, meriting the standard of “strict scrutiny” in judicial review. The government may use these categories only in “narrowly tailored” ways to achieve a “compelling government interest.” Educational diversity may be a compelling interest, and race can be considered as one of many factors in admissions, Powell concludes; however, a quota is not “narrowly tailored,” does not treat applicants as individuals, is discriminatory, and violates a person’s individual rights. Powell’s distinction between preferences and quotas was upheld in 2003 in two pivotal cases involving the University of Michigan’s admission policies. The university assigned additional points to minority students applying to their undergraduate program. In Gratz v. Bollinger (2003), the Supreme Court struck down the university’s point system, arguing that their policies were not “narrowly tailored.” The law school, in contrast, evaluated individual applicants in order to create an unspecified “critical mass” of minority students. In Grutter v. Bollinger (2003), the court upheld this program as flexible enough to assure that race or ethnicity were not the defining features of admissions. These cases suggest that the explicit, mechanical use of numbers precludes treating applicants as individuals who could be compared to all applicants and violates their equal protection under the law. Even if “flexible” admissions policies generate outcomes similar to those achieved by more mechanical practices, the discretion of admissions staff, it seems, preserves the constitutionality of affirmative action.

CONCLUSION Accountability is a term to reckon with, one that is easy to invoke and hard to oppose. Accountability can mean many things, but increasingly we link accountability to quantification. This is true in many fields, including law. We trust that numbers will be more transparent and objective than other forms of knowledge because we believe that numbers


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are impersonal; that the rules for producing them are clear, shared, and constraining; that their validity can be checked by others; and that their meanings are broadly interpretable. But quantification is rarely the neutral intervention that we might wish for, nor does it always produce disinterested knowledge. Cohen’s (1984, pp. 207, 225) advice in her pivotal book on American numeracy still merits heeding: Each instance of quantification has a particular history; the meanings of systems of classification that permit quantification are relative; numerical precision and accuracy are not the same thing; quantification possesses its own distinctive biases; and “statistics were political before they were quantitative.” Because quantification disturbs power relations, because it transforms and shifts discretion, its effects can reverberate within institutions. Quantitative accountability is often appealing precisely because we wish to curtail the authority of some parties. The legitimacy of quantitative authority depends on procedures, on methodology, rather than on the discretion of particular persons or the expertise of trained professionals. But as our examples suggest, the locus and shape of discretion may change, but it does not disappear, sometimes moving to locations that make it harder to observe. Tracking discretion can be difficult, as assumptions, uncertainty, and ambiguity are buried in layers of small decisions, the traces of which are hard to recover. In such situations, responsibility becomes more diffuse and abstract than when it is exercised by known individuals or groups whose decisions must be defended publicly. It may be harder to indict procedure than persons. Changes in authority relations are one reason why quantification is transformative. Another reason is that quantification powerfully shapes our cognition. As Hutchins (1995) shows, cognition is socially and temporally situated, and quantification can disrupt cognition systems. As a strategy for reducing and integrating information, quantification directs attention in particular ways; like a spotlight that illuminates part of the stage, it shapes

what we notice and ignore. Focusing attention can improve performances. The creation of the Apgar score for measuring the health of newborns, for example, has dramatically improved mortality rates by forcing doctors to attend to babies, when previously they had focused more on the mother. But diverted attention—from goals, context, or distributive effects—can also produce poor outcomes. What counts as a relevant instance or fact is dictated by the rules that govern how and what we aggregate. The transparency of numbers stems from their capacity to highlight processes that had formerly been obscure. Some decisions are obscure because they are made by dispersed people within bureaucracies that are hard to penetrate. Complexity is also a source of obscurity. Numbers are valuable partly because they can summarize complex information and make it accessible and easy to circulate. But simplification in one form can mask complexity by making other forms of knowledge harder to retrieve. Quantification is designed to be transgressive. Numbers make things easy to compare by expressing difference as intervals on a shared metric. Commensuration usurps other forms of classification (Espeland & Stevens 1998). Other ways of marking difference are made irrelevant. As Strathern (1996) argues, measurement is a moral issue. With sentencing guidelines, quantification mediates the distribution and meaning of punishment, such that justice is rendered to abstract categories of persons rather than particular individuals. In regulation, quantification defines efficiency, which is a moral value. And quantification now largely defines excellence and access in American legal education. Because of the potential for quantification to initiate dramatic changes in institutions, both positive and negative, and because it is often costly to produce, it is important to study its effects empirically. Our examples suggest that legal scholars should analyze how the authority we ascribe to numbers interacts with other forms of authority, including the


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formal rational authority of law. Following Weber’s example, this entails understanding authority as a relational concept. In law, for example, formalizing and interpreting rules is a different process than designing methods for quantifying, and reasoning based on cases, precedent, and intentions is different from statistical or scientific reasoning or mechanical objectivity. Understanding the varying effects of how different forms of authority impinge upon one another is an important question for legal scholars. If quantification changes relations of authority, what people notice, and how they make sense of situations, it is not surprising that it changes how people resist. Debate often focuses on methods, on how qualified someone is to make or interpret quantitative findings, or on how instances are not covered by the rules for quantifying. Efforts to game the numbers, or interpret rules in creative ways, or create alternative rankings are ways of reclaiming some more narrow forms of discretion. But these are different strategies than making more direct claims about decisions or performance. Which parts of law are immune to quantification or able to resist it and which are not? What makes certain legal sites, actors, and practices vulnerable to the imposition of quantitative accountability? Is this vulnerability a function of status, a particular kind of visibility, a political weakness, or a disposition to certain forms of conflict? When can claims to individualized treatment be sustained? Both sentencing guidelines and RIA were an effort to check discretion and impose accountability, but accountability was an unintended consequence of rankings. Legal scholars pay close attention to the intentions of legislators when interpreting law, but as Miller (2004) suggests, we must broaden our focus to understand the unintended effects of quantification. Although Porter emphasizes status, conflict, and the need to communicate across cultures and distance as conditions fostering the spread of quantification, the media can also forcefully shape vulnerability to an


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imposed accountability. Federal judges with lifetime tenure do not seem particularly vulnerable, but because the sentences they impose are public and because crime is a highly politicized issue, Congress was able to impose guidelines. We also do not think of law school deans as particularly weak. But because rankings are media products, they were widely disseminated from the beginning, which permitted them to acquire constituencies independently of legal educators. The media can be enlisted in ways that make even influential constituencies vulnerable. And numbers, because we believe their meanings are selfevident to the numerate, can circumvent gatekeepers. Understanding how techniques for quantitative accountability accumulate powerful constituencies is another crucial question to examine. Lastly, what are the effects of institutionalizing quantitative accountability in law? The conditions that gave rise to quantification may change as it becomes more broadly used and legitimated. If accountability becomes closely associated with quantification, it becomes routine rather than deliberative. Once quantification is understood as “the way things are done,” other forms of accountability are harder to sustain and validate, which encourages a broad conformity among organizations. Sometimes this conformity may be superficial or decoupled from the real business of organizations, as a symbolic bid for legitimacy, or it may produce significant changes within organizations. Institutionalization also mediates the effects of quantification. Law schools now view rankings as a permanent if unwelcome part of the landscape, and resistance has shifted from trying to stop them to constructing more credible rankings. And although the effects of Booker are unfolding, it is not surprising that after two decades of experience with guidelines, many judges still use them in sentencing and reviews. Understanding how the causes and effects of technologies of accountability in law change over time and as they spread is another key dimension to examine.

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Pressure for accountability will likely continue and its link to quantification grow. Efforts to collaborate internationally, to link economies and governments, and to develop international law all broaden the demand for accountability. And quantification seems a universal language. But understanding where quantification intrudes, where it

is resisted, how it reconfigures power, and how context is invoked in interpreting it require nuanced research attentive to variation. We have investigated how just three examples of quantitative accountability have influenced parts of American law. Clearly, a more global and comparative perspective is needed.


DISCLOSURE STATEMENT The authors are not aware of any biases that might be perceived as affecting the objectivity of this review.

ACKNOWLEDGMENTS Both authors contributed equally to this review. We thank Abeer Alwan, Tom Durkin, Marwa Elshakry, Gabrielle Ferrales, Carol Heimer, Faisa Mushtaq, Michael Sauder, Peter Siegelman, Susan Silbey, Christine Stansell, and Mitchell Stevens for helpful suggestions, and Sophia Wang, Kathleen Pakuszewski, and especially Cassandra Malik for expert research assistance. The first author gratefully acknowledges the Radcliffe Institute for Advanced Study at Harvard University for its support.

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Epstein AJ. 2006. Do cardiac surgery report cards reduce mortality? Assessing the evidence. Med. Care Res. Rev. 63(4):403–26 Espeland WN. 1998. The Struggle for Water: Politics, Rationality and Identity in the American Southwest. Chicago: Univ. Chicago Press Espeland WN, Stevens ML. 1998. Commensuration as a social process. Annu. Rev. Sociol. 24:313–43 Etienne M. 2004. The declining utility of the right to counsel in federal criminal courts: an empirical study on the diminished role of defense attorney advocacy under the sentencing guidelines. Calif. Law Rev. 92:427–85 Frankel ME. 1973. Criminal Sentences: Law Without Order. New York: Hill & Wang Freed DJ. 1992. Federal sentencing in the wake of guidelines: unacceptable limits on the discretion of sentencers. Yale Law J. 101(8):1681–754 Fuchs EP, Anderson JE. 1987. The institutionalization of cost-benefit analysis. Public Product. Rev. 10(4):25–33 Gratz v. Bollinger, 539 U.S. 244 (2003) Grutter v. Bollinger, 539 U.S. 306 (2003) Hahn RW, Sunstein CR. 2002. A new executive order for improving federal regulation? Deeper and wider cost-benefit analysis. Univ. Penn. Law Rev. 150(5):1489–552 Heimer CA, Staffen LR. 1998. For the Sake of the Children. The Social Organization of Responsibility in the Hospital and the Home. Chicago: Univ. Chicago Press Heinzerling L. 2000. The rights of statistical people. Harvard Environ. Law Rev. 24(1):189–207 Hofer PJ, Blackwell KR, Ruback RB. 1999. The effect of the Federal Sentencing Guidelines on inter-judge sentencing disparity. J. Crim. Law Criminol. 90(1):239–322 Hoffer TB. 2000. Accountability in education. In Handbook of the Sociology of Education, ed. MT Hallinan, pp. 529–43. New York: Kluwer Acad./Plenum Hutchins E. 1995. Cognition in the Wild. Boston: MIT Press Koh SY. 1992. Reestablishing the federal judge’s role in sentencing. Yale Law J. 101(5):1109–34 Light P. 1988. Reagan’s regulatory reform. Pub. Administ. Rev. 48(6):1012–13 Lutter R. 2000. Valuing children’s health: a reassessment of the benefits of lower lead levels. Work. Pap. No. 00–2, AEI Brookings Joint Cent. Regul. Stud. Margolick D. 1992. Justice by the numbers: a special report. NY Times, April 12. Sect. 1, Part 1, p. 1 McGarity TO. 1991. Reinventing Rationality. The Role of Regulatory Analysis in the Federal Bureaucracy. New York: Cambridge Univ. Press Miller ML. 2004. Domination and dissatisfaction: prosecutors as sentencers. Stanford Law Rev. 56(5):1211–69 Miller P, Rose N. 1990. Governing economic life. Econ. Soc. 19(1):1–31 Mustard DB. 2001. Racial, ethnic, and gender disparities in sentencing: evidence from the U.S. Federal Courts. J. Law Econ. 44(1):285–314 Nagel IH. 1990. Foreword: structuring sentencing discretion: the new Federal Sentencing Guidelines. J. Crim. Law Criminol. 80(4):883–943 Narins CR, Dozier AM, Ling FS, Zareba W. 2005. The influence of public reporting of outcome data on medical decision making by physicians. Arch. Internal Med. 165(1):83–87 Natl. Comm. Excellence Educ. 1983. A Nation at Risk: The Imperative for Educational Reform. Washington, DC: USGPO Natl. Res. Counc. Comm. Rev. OMB Risk Assess. Bull. 2007. Scientific Review of the Proposed Risk Assessment Bulletin from the Office of Management and Budget, Executive Summary. Washington, DC: Natl. Acad. Press


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Ohmann R. 2000. Historical reflections on accountability. Academe 86(1):24–29 Porter TM. 1995. Trust in Numbers: The Pursuit of Objectivity in Science and Public Life. Princeton, NJ: Princeton Univ. Press Posner EA. 2002. Using net benefit accounts to discipline agencies: a thought experiment. Univ. Penn. Law Rev. 150(5):1473–88 Power M. 1997. The Audit Society: Rituals of Verification. Oxford: Oxford Univ. Press Power M. 2003. Evaluating the audit explosion. Law Policy 25(3):185–202 Ranson S. 2003. Public accountability in the age of neo-liberal governance. J. Educ. Policy 18(5):459–80 Regents of the University of California v. Bakke, 438 U.S. 265 (1978) Rose N, O’Malley P, Valverde M. 2006. Governmentality. Annu. Rev. Law Soc. Sci. 2:83–104 Rosga A, Satterthwaite M. 2003. Trust in indicators: trying to measure human rights. Presented at Annu. Law Soc. Assoc. Meet., Pittsburgh, June 5–8 Sauder M, Espeland WN. 2006. Strength in numbers? The advantages of multiple rankings. Indiana Law J. 81:205–27 Shore C, Wright S. 1999. Audit culture and anthropology: neo-liberalism in British higher education. J. R. Anthropol. Inst. 5(4):557–75 Shore C, Wright S. 2000. Coercive accountability: the rise of audit culture in higher education. See Strathern 2000, pp. 57–89 Silbey S. 2003. Governing green laboratories: differential responses to legal regulation. Presented at Annu. Law Soc. Assoc. Meet., Pittsburgh, June 5–8 Stith K, Cabranes JA. 1998. Fear of Judging: Sentencing Guidelines in the Federal Courts. Chicago: Univ. Chicago Press Strathern M. 1996. From improvement to enhancement: an anthropological comment on the audit culture. Cambridge Anthropol. 19(3):1–21 Strathern M, ed. 2000. Audit Cultures. Anthropological Studies in Accountability, Ethics and the Academy. London: Routledge Sunstein CR. 1996. Congress, constitutional moments, and the cost-benefit state. Stanford Law Rev. 48(2):247–309 Sunstein CR. 2000. Cognition and cost-benefit analysis. J. Legal Stud. 29(2):1059–103 Tonry M. 1996. Sentencing Matters. Oxford: Oxford Univ. Press Tonry M. 2005. The functions of sentencing and sentencing reform. Stanford Law Rev. 58(1):37– 66 Trott S. 1995. Letter to Richard Conaboy, Chairman of the U.S. Sentencing Commission, November 9, 1994. Fed. Sentencing Report. 8(3):199 U.S. Sentencing Commission. 2006. Guidelines Manual, §3E1.1 (Nov.). Washington, DC: U.S. Sentencing Commission. http://www.ussc.gov/2006guid/gl2006.pdf U.S. Sentencing Commission. 2004. Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform. Washington, DC: U.S. Sentencing Commission. http://www.ussc.gov/15 year/15 year study full.pdf United States v. Booker, 543 U.S. 220 (2005) Von Dornum DD. 1997. The straight and the crooked: legal accountability in ancient Greece. Columbia Law Rev. 97(5):1483–518 Weidenbaum M. 1997. Regulatory process reform: from Ford to Clinton. Regulation 20(1):20– 26 Williams R. 1976. Keywords: A Vocabulary of Culture and Society. New York: Oxford Univ. Press


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How Autonomous Is Law? Annu. Rev. Law. Soc. Sci. 2007.3:45-68. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/10/07. For personal use only.

Christopher Tomlins American Bar Foundation, Chicago, Illinois 60611; email: [email protected]


Key Words


relationality, Marxism, theory, history, justice


Abstract Socio-legal scholars forever debate whether law is the product of internally constructed rules, procedures, and rationales or an effect of external social forces and interests. Traditionally, the debate pitted formalists who defended law’s actual autonomy against instrumentalists who claimed law was a creature of exogenous circumstance. The debate was transformed in the later twentieth century, first by fundamental refinements in Marxist theory that produced structuralist accounts of law’s relative autonomy, then by poststructural innovations in critical theory which held that all discourses (including law) were epistemically autonomous. Parallel formulations claimed not only that law was autonomous but also that law was in fact constitutive of the very social circumstances once held to determine its development. This article reviews the highlights of the debate while adopting a perspective outside it. It treats the autonomy question as relational—if law is autonomous it must still be autonomous in relation to something—and asks in relation to what? All sides in the debate assume the answer is society, so the article asks how the social became law’s relational other and what other relationalities might be brought into play.

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HOW AUTONOMOUS IS LAW?


To treat the extent of law’s autonomy as a question of scholarly significance is to identify law (whether doctrine, rule bundle, or institution; discipline or expertise; discourse, knowledge practice, or communicative system) as a relational phenomenon. That is, the autonomy question presumes that in whatever form law is made manifest, it necessarily subsists (a) in relation to some other phenomenon or phenomena, from which (b) it is to some determinable degree (which may vary from completely to hardly at all) distinguishable. Although relationality does not foreclose any particular quantum of distinction, even the position that law is wholly autonomous (most closely associated with formalist jurisprudential traditions generated within the legal system) remains relational.1 Autonomy is not solipsism (Cotterrell 1993, p. 175). Law cannot erase (or be erased by) the world. Nor does relationality as such presume any particular other. That said, the meaning and character we ascribe to law will necessarily vary according to the relations we identify as relevant, the others that we recognize, and our ways of characterizing them. Since the late nineteenth century, in modern Western scholarship, law’s conventional other has been society and its cognates: the economy, politics (see, e.g., Jhering 1913; Pound 1923, pp. 10–11). Collectively, society-polity-economy identifies an ordered or formed realm of human action (the social) in relation to which law stands and in which law participates. By the 1960s, scholarly inquiry into law across numerous academic disciplines—jurisprudence, the social sciences, history—had congealed to form a field of study, law and society, predicated on this convention and dedicated to a dense ex-

1

For a recent account of law’s autonomy that locates the question in its traditional jurisprudential realm (parsing modalities of legal reasoning and procedure across the course of the twentieth century), see Bix 2003.

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amination, empirical and theoretical, of the terms of law’s standing vis-à-vis the social. Exponents of socio-legal studies expected their work to produce formulations of law’s overall meaning in relation to social organization and hence to determine law’s significance for modern society. Over time, and in successive iterations and variations, their efforts produced two pairs of statements of law’s standing that may be summarized as follows: first, the proposition that law’s intellectual and systemic development proceeds according to a logic, procedure, and rationale of its own (law is autonomous of the social world in relation to which it stands), versus the contrary proposition that law reflects, is determined by, or can be reduced to the social order or formation in relation to which it stands (law is not autonomous); second, the proposition that law’s standing in relation to the social is characterized by a gap (a nonspecific quantum of difference) between self-expressed law (law in books) and socially expressed law (law in action) and that this gap is socially dysfunctional, versus the contrary proposition that in signifying law’s standing for itself in relation to society the gap or quantum of difference between books and action is not dysfunctional but, rather, legitimating (Silbey 2005 is helpful general background to all these points). Each pair of opposed statements can be restated from a diversity of political-theoretical standpoints. A liberal or pluralist theory of law, for example, might translate oppositions between autonomy and reflexivity and between imputed dysfunctionality and functionality into statements about conditions for law’s effectiveness; it might proceed to canvass the desirability or possibility of gap closing, the relative merits of different gap-closing strategies, and so forth. A socialist or Marxist theory of law might translate the same oppositions into the proposition that in each case observable outcomes might be expressed as constants signifying a structural position [such as the relative autonomy of law (see below)] or function [such as the propagation of hegemony (see, e.g., Hay 1975; Genovese 1972,


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pp. 25–49)] that both determines and explains law’s overall social role. Much of the scholarship identified with the early law and society field approached both law and the social as observable phenomena produced and reproduced in the ceaseless play of human intention and activity (Teubner 1989, pp. 730–32; Levine 1990, pp. 73–75; Tomlins 2000, pp. 946–59). Law’s autonomy question, hence, was initially conceived of in institutional or behavioral terms. Innovation in social theory (structuralism, poststructuralism, critical theory, autopoiesis) has produced other representations of both law and the social—as components of a complex whole, as discourses, as knowledge practices, as communication systems—that have reconceived the autonomy question in ideological and, latterly, epistemic terms. The most uncompromising of these innovations, autopoiesis, renders law a closed (self-referential, autoreproductive) system. Epistemological innovation has not, however, disposed of relationality, nor even of the social as such. Even in the case of autopoiesis, exponents are reluctant to surrender the impulse to locate law in relation to exogenous circumstance (Teubner 1989, pp. 746–52; Nelken 2006a, p. 599). This review traces law’s autonomy question across time, highlighting the socio-legal debates, particularly in the sociology and history of law, that I consider most important to the autonomy question’s conceptual evolution. The review also considers the utility of the autonomy question itself. The latter discussion has two aspects. One aspect considers whether formulation of the question as one of autonomy misstates law’s relationality. An autonomy paradigm parses relationships between the social and the legal as if they were discrete objects, but numbers of scholars have increasingly attended to the ways in which the social and the legal penetrate and constitute each other. The legal is as much social as the social is legal. We encounter, that is, a move away from an autonomy paradigm of law’s relationality toward a mutuality paradigm: Law and society simul-

taneously contextualize, absorb, and are absorbed into each other (see, e.g., Silbey 2005, pp. 358–61; Riles 2006). The second aspect considers the significance and meaning of this move. Here again there are two possible directions to follow. One might examine the move abstractly, as an innovation in socio-legal theory, and ask what its restatement of relationality is likely to achieve. Now that much leading sociolegal scholarship has adopted the mutuality paradigm, how will our explanation of the relationality of law and the social alter? Or, avoiding abstraction, one might pursue significance and meaning in a rather different inflection. The intellectual move, from autonomy to mutuality, actually acknowledges and expresses a temporal move, from one historically located modality of social-legal relationality (separation) to another (penetration). That is, rather than a changed way of thinking—a rethinking of a familiar, if knotty, conceptual problem—the emergence of the mutuality paradigm is a conceptual consequence of a material change in the terms of social-legal relationality that has rendered the current historical expression of relationality distinct from the previous one. A conjunctural shift has occurred. Legal actions have become more visibly and directly instrumental to the achievement of specific outcomes. As a result, our thinking about them changes. Once we add temporality, we can consider still further dimensions of relationality. For example, instead of treating the social as if it were law’s constant relational other, we might ask how it became so, when, and what it displaced in so becoming. We can ask whether it might cease to be. We can ask what other relationalities (or expressions of relationality) might be useful to us and how we might investigate them. We can ask, for example, whether law is autonomous of justice, or of memory.

LAW’S AUTONOMY QUESTION Were one to seek a convenient point of entry into the law and society field’s discussion www.annualreviews.org • How Autonomous Is Law?

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of the autonomy question, the scholarship of the early 1970s would be the place to start—not because that scholarship first posed the question but because, after a hiatus, it raised the question anew. In the wake of realism, twentieth-century law had attempted to reinvent itself as “a practical science” more interested in “working assumptions” and “tractable” matters than “fundamental questions about the social, political, and economic functions of the legal order” (Trubek 1972b, p. 1; Trubek 1990, pp. 21–22). It had bred a liberal ideology of legalism— pragmatic and professional management of social change by legal elites and institutions wielding a kit of techniques in the name of powerful but vague ideals of “freedom” and “equality” (Trubek 1990, pp. 8–9; see also Posner 1987, pp. 763–66). But if, in the Warren Court’s United States, legalism had expressed an expansive optimism about the ease with which law might be pressed into reformist service, by the end of the 1960s law was in crisis. The problems that legalism had addressed had proven intractable; legalism’s working assumptions did not work. After all, it seemed, law knew little of society, and what it did know did not help (Mazor 1972). An early law and society metaphor— law as dependent variable “acted upon by other social forces more often than acting upon them” (Hurst 1950, p. 4)—suggested one explanation of law’s problems (law’s normative promise drowned in an ocean of contending interests) but offered no scientific means to assess (or repair) its shortcomings. Some scholarship turned to systematic empirical investigation—“impact, compliance, legal effectiveness . . . the effects of law on society at large” (Feeley 1976, p. 497). In other words, gap analysis. Others identified the field’s task differently, as requiring the formulation of “a social theory of law” that would meet the demands of the age by “fram[ing] explicit and concise questions on the relationship between law and social life” (Trubek 1972b, p. 1). A sense of flux and competition for direc-


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tion in socio-legal studies characterized the decade.2 Trubek’s social theory of law recovered themes from late-nineteenth-century thought about law that, he argued, had since lain largely neglected. At its center was Max Weber. Weber’s great achievement, Trubek argued, was his comparative sociology of the emergence of modern industrial capitalism (but cf. Cotterrell 1993, p. 183), a project that had required him to identify the particular conditions that favored capitalism’s first emergence and success in Europe rather than elsewhere. Law bulked large. Although he shunned reflexive accounts of the relationship between legal phenomena and economic forces, Weber nonetheless recognized the pivotal contribution that European legal systems had made to an environment conducive to the rise of capitalism. His account of those legal systems stressed their self-determination. As Trubek (1972a, p. 724) summarizes, “The European state separated law from other aspects of political activity. Specialized professional or ‘status’ groups of lawyers existed. Legal rules were consciously fashioned and rulemaking was relatively free of direct interference from religious influences and from other sources of traditional values. Concrete decisions were based on the application of universal rules, and decisionmaking was not subject to constant political intervention.” In the very formality and rationality of European law, however, lay its stimulus to capitalist development. Uniquely among world economic systems, capitalism—with its dependence on a densely transactional market economy— required a predictable legal environment to succeed. European law coerced compliance with the formal-rational legal order it had 2

See, e.g., Feeley (1976, p. 501), contending that “[law] does not capture a constant, identifiable activity, process or set of relationships, around which basic social theory is likely to be formed” (see also Trubek 1977, p. 529; Nonet 1976). Competition for direction in 1970s socio-legal studies extends to how the decade should be remembered; compare Levine (1990), Trubek (1990).


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constructed and perfected, ensuring a predictable transactional environment. Formality and rationality, meanwhile, preserved European law’s institutions and rules of conduct at a clear remove from the distribution of benefits and costs consequent upon enforcement of the legal order. Formality and rationality thus expressed law’s self-determining autonomy, its existence at a remove from selfinterested political and/or economic interests; autonomy produced the predictability conducive to capitalist development. A Weberian social theory of law thus arrives at a statement of modern Western law’s autonomy through the pursuit of two complementary inquiries. First, law’s legitimacy inheres in law’s self-directedness (formal legal rationality), the absence of obeisance to other elements of the social order. Second, law’s selfdirectedness is a condition of the continued stability of that social order. Each is a relational statement: The object of inquiry is the macrostructural relationship of the rise of law to the rise of capitalism. This seems obvious. Weber’s stress on law’s autonomy was not an attempt to deny a relationship between the two phenomena but to expound it. But the point was not obvious to scholars who considered autonomy and relationality as necessarily antithetical. Thus, virtually at the same moment that Trubek was setting out his prolegomenon to a Weberian social theory of law, Lawrence Friedman embraced the proposition that nothing about law was autonomous. All legal phenomena were determined according to the demands of “economy and society”—external interests and needs. Law should be understood “not as a kingdom unto itself, not as a set of rules and concepts, not as the province of lawyers alone, but as a mirror of society.” The legal system “works like a blind, insensate machine” that “does the bidding of those whose hands are on the controls” (Friedman 1973, pp. 10, 14). Throughout his career, Friedman’s skepticism of the law’s autonomy remained basic to his conception of how socio-legal studies should approach law.

In 2005, cataloging the shared assumptions of socio-legal scholars, he maintained that most were of the opinion that the legal system was “basically not autonomous,” possessed at most of only “a little bit of autonomy.” An autonomous system was one “that operates under its own rules, that grows, changes, and develops according to its own inner program,” but law was obviously imprinted by “the society in which it is imbedded”; that is by “culture, the economy, politics, tradition, and social norms” (Friedman 2005, p. 6).3 One might respond, like Weber, that the selfreferential and professionalized structure of “rules, codes, procedures, and decisions” that characterizes modern Western law—its institutional separation from politics, domination by professional elites, rule-boundedness, and so forth—is precisely one that shows the imprint of the particular genus of society (modern, Western) in which it is embedded. Friedman, however, treated the autonomy question as if to describe modern Western law’s distinguishing characteristics was simultaneously to deny any relationship between law and the social.

RELATIVE AUTONOMY These early socio-legal disquisitions upon the autonomy question—Trubek’s, Friedman’s— were scene setting: In their essentials, the positions espoused have tended to hang around, at least in the U.S. field. A further disquisition that has also hung around (see, e.g., Silbey 2005, pp. 341–44) issued in 1975 from the English social historian Edward (E.P.) Thompson. Thompson’s intervention was in its way no less notorious than Friedman’s determined advocacy for law’s

3

See also Galanter & Edwards (1997, p. 376), holding that “law and society”—along with “other schools and movements of legal thought” that had sprung up in the interim— was marked by “a consensus” that legal activity was not an autonomous realm but “to be explained and understood as the product of exogenous forces.”

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epiphenomenality, though quite distinct both in substance and context. Essentially, having completed a book (Whigs and Hunters: The Origin of the Black Act) that quite unambiguously cohered in its empirical detail with the general contention that legal phenomena were determined relative to economy and society, Thompson became disturbed by the implication and added a conclusion that tacked so violently away from his book’s substance as virtually to disown it. Thompson’s change of mind arose not from a last-minute anxiety that his own “sour” account of the eighteenth century’s legal system was wrong and required qualification—he did not repudiate what he had written—but from concern that his book might be read as lending support to those within the broad range of European Marxist thought against whom he aligned himself, practitioners of “a sophisticated, but (ultimately) highly schematic Marxism”— Althusserian structuralism—that, as he (mistakenly) understood it, treated law as no more than an expression of infrastructural productive forces and relations; that is, that treated law as “an instrument of the de facto ruling class” that defines and defends “rulers’ claims upon resources and labor-power” and mediates class relations in such a way as to “confirm and consolidate existing class power” (Thompson 1975, pp. 16, 259). Of course, in the body of Whigs and Hunters Thompson had just described in considerable detail the rise of an oligarchy that had indeed “employed the law, both instrumentally and ideologically, very much as a modern structural Marxist should expect it to” (Thompson 1975, pp. 260–61).4 But, Thompson insisted, the law as such transcended its uses. Certainly, courts, judges, and lawyers might fight to assimilate law to particular class interests; certainly, in the form of “particular rules and sanctions” (ideology, to Thompson) law stood “in a definite and active relationship” to the social. But


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Or rather, as Thompson imagined a modern structural Marxist would expect. The difference is not unimportant.

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in a distinct instantiation that Thompson denoted “simply . . . law,” which he expounded definitionally as “its own logic, rules and procedures,” the law could not be assimilated to particular interests, nor did it appear to stand in any detectable relation to the social. In this instantiation “simply . . . law” was possessed of “its own characteristics, its own independent history and logic of evolution.” It stood on its own as the rule of law—“a genuine forum” within which social and class conflicts might be fought (Thompson 1975, p. 260, 265). “Simply . . . law,” then, was law’s essence, transcendently autonomous. And as such, it was also, transcendently, “an unqualified human good” (Thompson 1975, pp. 265–66). Like Friedman, but in the opposite direction, Thompson (“simply” . . . “unqualified”) had staked out an extreme. More or less at the same time as the American liberal identified the rule of law as naked instrumentalism, at the mercy of interests, the English Marxist took flight to a rather romantic formalism. (For critiques of Thompson’s formalism and romanticism, see Merritt 1980, Anderson 1980; see also Horwitz 1977. For a historical critique of the implications of Thompson’s general representation of eighteenth-century law and alternative formulations, see Tomlins 1995.) Such was Thompson’s zeal to bag structural Marxism that he ended up caricaturing the target the better to hit it. The European Marxists in opposition to whose structuralism Thompson wrote—theorists such as Louis Althusser and Nicos Poulantzas—were (simply) not the reductionists that Thompson made them out to be. The position that Althusserian structuralism developed was that of law’s relative autonomy: relative, that is, to demands emanating from the social. Althusser’s project completely retheorized orthodox (Third International) Marxist understandings of economic “base” (infrastructure) and superstructure in a fashion that was decisively noninstrumental. As Jessop summarizes it, Althusserian structuralism held that a mode of production (a society) was “a


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complex structured whole” comprising “several relatively autonomous regions” (the economic, the juridico-political, the ideological) that conditioned each other. Thus, in the Althusserian project the economic was determinative only to the extent that society’s infrastructure comprises relations of production that must somehow be reproduced if the structured whole is to continue overall. How those relations were actually reproduced at any given moment depended upon practices within the several different regions, none of them per se dominant, and on the relationships persisting among them. Thus, “the Althusserian approach tends to be perfunctory in its treatment of economic determination . . . and to focus on the specific properties of the several regions as if they were autonomous” ( Jessop 1980, pp. 341–42). In terminology no doubt alien to Thompson’s English ear,5 Althusser theorized superstructure as an assemblage of diverse state apparatuses, some repressive (police, courts, prisons, army) that functioned in the last instance by violence, others ideological (schools, churches, trade unions, media, the law) that functioned by persuasion. Althusser’s ideological state apparatuses were dispersed and differentiated; they did not secure particular class interests but rather were sites of struggle between classes for control. In Althusserian terms, courts could be repressive, but as an ideological state apparatus law itself was relatively autonomous of the demands of infrastructural productive relations and forces, an apparatus for control of which the ruling class constantly fought. The implications of the Althusserian approach for law were further clarified, Jessop (1980, pp. 342, 351–61) notes, in the work of Nicos Poulantzas, whose focus was “the autonomization and effectivity of law and the dominance of juridical ideology in bourgeois soci-

eties.” Indeed, it was Poulantzas (1973, 1978) more than any other Althusserian theorist who developed most fully the relative autonomy critique of reductionist Marxist theories of the state. These were the theorists that Thompson represented as incapable of distinguishing between “arbitrary power and the rule of law” (Thompson 1975, p. 266). In fact, Thompson’s polemic (perhaps this was its purpose) obscured how closely, on certain points, his own formulations reproduced Althusserian formulations. Thompson claimed as his own the insight that “the rules and categories of law penetrate every level of society,” that law contributes to selfdefinition and identity. “Productive relations themselves” he observed “are, in part, only meaningful in terms of their definitions at law” (Thompson 1975, p. 267; 1978, p. 96). But this departs in no real particular from Poulantzas’s insistence upon understanding the specific place and function of law in the reproduction of specific modes of production, his Althusserian identification of ideology as an autonomous region in which relations of production were reproduced and in which law interpellated agents of production in isolation, on its own terms, forming their social relations ( Jessop 1980, p. 352).6 Thompson rejected structuralist theory as “a desperate error of intellectual abstraction,” but his alternative was imprecise—in the sentence quoted above, for example, what exactly is the measure of “in part”?—and contradictory. For although Thompson posed as impassioned defender of empirical history, when his own history showed (“again and again,” as he noted) that “the actuality of the law’s operation in class-divided societies” belied its rhetoric, he rejected that too. Having lambasted relative autonomy as reductionism in disguise, the only place he had left to himself was normative romance—the rule of

5

6

One encounters in Thompson’s smug ridicule of Althusser (see, e.g., Thompson 1978, pp. 90–103) a signal instance of what Teubner (1989, p. 1) calls the “Jabberwocky” technique.

That is, law addresses itself, peremptorily, to a subject to whom, in the act of interpellation, it ascribes certain powers and capacities, thus producing and reproducing the subject as an effect of itself. www.annualreviews.org • How Autonomous Is Law?

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law as unqualified good (Thompson, 1975, pp. 266, 267).7 In 1977, about the same time Thompson was flailing at Althusser, a distinct strain of relative autonomy analysis briefly won more thoughtful attention in U.S. socio-legal circles. The occasion was an exchange between David Trubek and Isaac Balbus over the latter’s Dialectics of Legal Repression (Balbus 1973). Dialectics was an attempt at a Marxist analysis of the behavior of the U.S. criminal justice system during the ghetto riots of the late 1960s and more generally of the role of law in capitalist society. Noting that, despite the pressures induced by the riots, due process norms and procedures were not sacrificed to an exclusive concentration on repressive order maintenance, Balbus hypothesized that formal legal rationality—which he defined as compliance with norms and procedures—was no less important to capitalist society’s viability than the brute suppression of disorder, in that adherence to legality maintained the legitimacy of the general political and economic system. Trubek (1977) responded that Balbus had in effect applied Weber’s concept of formal legal rationality to empirically specific instances of law in action without realizing that formal legal rationality expressed a general condition (legal autonomy) that was incompatible, at least in Trubek’s view, with a Marxist analysis of law in capitalist society. Challenged by Trubek to explain the relationship between legal form (governance according to the rule of law) and capitalism in specifically Marxist terms, Balbus de-


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One should not leave this account assuming I think Althusserian structuralism is beyond criticism. I do not. It tends both to the static and the abstract, as indeed Thompson (1978) argued in The Poverty of Theory. In Althusser’s own hands, at least, it is not as hostile to historical work as Thompson claimed, although it is certainly hostile to historicism, of which Thompson’s own work was by no means free. Unfortunately, virtually everything that might otherwise be useful in The Poverty of Theory has to be absorbed while trying to ignore an unusually tiresome dose of Thompsonian vituperation and self-indulgence. For far more appropriate appraisal and critique of Althusser, see Callinicos (2004), Elliott (1987). 52

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veloped a restatement of relative autonomy (Balbus 1977) that hewed closely to the (nonAlthusserian) capital logic school of Marxist theory. The goal of capital logic Marxism “is to derive the form of the capitalist state from the nature of capital” and to examine “the complex system of mediations” whereby state activity creates the prerequisites for capitalist accumulation ( Jessop 1980, p. 343, emphasis in original). In its application to law, capital logic theory owes most to the pre–World War II Soviet jurist Evgeny [Eugen] Pashukanis, who, as Jessop recounts, “tried to derive the specific historical form of bourgeois law and its associated state from the essential qualities of commodity circulation under capitalism” (on Pashukanis, see also Cotterrell 1993, pp. 181–82). Pashukanis’s starting point, Jessop (1980, pp. 343–44) continues, is Marx’s observation in [Das Kapital] that commodities cannot themselves go to market and perform exchanges in their own right: they must be committed to circulation through the intervention of subjects who enter into voluntary contractual relations in their capacities as owners of those commodities. Thus Marx concludes that the economic relation between commodities must be complemented by a juridical relation between willful subjects [reference omitted]. Pashukanis likewise traces the emergence of the legal subject as the bearer of rights to the emergence of the commodity as a bearer of exchange value and argues that the logic of juridical concepts corresponds to the logic of the social relations of commodityproducing society . . . . Thus, while the precapitalist legal subject was a concrete individual with specific customary privileges, the legal subject of bourgeois society is the universal abstract bearer of all manner of claims. The kernel of the legal subject is the commodity owner but the formal attributes of freedom and equality rooted in the economic sphere are readily generalized to other areas of civil society and the state.


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Balbus’s (1977) essay “Commodity Form and Legal Form” followed the road Pashukanis had taken a half century earlier. Its most significant achievement, perhaps, was to restate Pashukanis in terms that established a point of contact, and hence terms of distinction, between Marxist theories of the legal form and orthodox U.S. debates (see Bix 2003) that had traditionally canvassed the opposition between law’s self-determination (formalism) and other-determination (instrumentalism). Instrumentalists and formalists, Balbus argued, embraced the same logic: For both, analysis of law’s relation to society under capitalism could be advanced by empirical inquiry into whether or not law was a creature (instrument) of the will of powerful social actors. Instrumentalist hypotheses would be satisfied by evidence of law’s responsiveness to the will of the socially powerful; formalist hypotheses would be satisfied by evidence of law’s lack of responsiveness, its exhibition of tendencies to develop in response to its own internal dynamics. If one accepted the instrumentalist-formalist continuum, the scholar’s only option was to approach the autonomy question as a broker, establishing some empirically determinable point of compromise or balance between formalist autonomy and instrumentalist nonautonomy (that is, the point where law, in Friedman’s terms, exhibited its “little bit” of autonomy). But law’s autonomy from the preferences of particular social actors could never establish law’s systemic autonomy.

Balbus proposed that the latter possibility was demonstrable once one transcended the “common conceptual terrain” of the instrumentalist-formalist continuum for the “wholly different theoretical terrain” of capital logic Marxism’s version of relative autonomy (Balbus 1977, p. 572–73).8 Following Pashukanis, Balbus argued that the relationship between law and capitalism was conceptually systemic: The very form of law (exchange of people) was homologous— correspondent—with the form of capitalism (exchange of commodities). The homology of legal form and commodity form lay in their reproduction of the same logic of equivalence: “[I]n a capitalist mode of production, products take on the form of individual commodities”; in the legal form that corresponds to a capitalist mode of production, human beings “take on the form of individual citizens” (Balbus 1977, p. 575). Commodities and citizens obeyed the same productive logic: In each case, they had been abstracted from specific, real substances (products, persons) and rendered what, in fact, they could not be—equals. In each case, the attribution of equality rendered the commodity, the citizen, exchangeable with its equivalents—other commodities, other citizens—through the operation of dedicated transactional media: markets and law. Balbus expressed the homology of capitalist society’s transactional media (law, markets) in the capital logic school’s terminology of prerequisites for accumulation. In Balbus’s rendition, then, relative autonomy was not structuralist, in the Althusserian

The formulation that to the degree that the law does not respond directly to the demands of powerful social actors it is autonomous, in the sense that it functions and develops according to its own internal dynamics omits the possibility that the law is not autonomous from, but rather articulates with and must be explained by, the systemic requirements of capitalism precisely because it does not respond directly to the demands of these actors (Balbus 1977, p. 572, emphasis in original).

8

It is worth noting that orthodox jurisprudential discourse has picked up and uses the terminology of relative autonomy, but in ways that have no relationship to Althusserian or capital logic Marxism. For example, when Bix (2003, p. 985) finds that “a relatively autonomous discipline of law may be defensible” (emphasis in original), he means a discipline that is “somewhat” autonomous, that treats legal reasoning as distinctive but not absolutely distinct—“a particular application of moral and political reasoning, rather than entirely abstracted from such reasoning.” It is important to distinguish this conventional vocabulary from the structural or logical precision essayed in the original Marxist theorization. www.annualreviews.org • How Autonomous Is Law?

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sense, but essentialist—an expression of correspondent logics of capital and law. The homology between the legal form and


the commodity form guarantees both that the legal form, like the commodity form, functions and develops autonomously from the preferences of social actors and that it does not function and develop autonomously from the system in which these social actors participate. Stated otherwise, the autonomy of the Law from the preferences of even the most powerful social actors (the members of the capitalist class) is not an obstacle to, but rather a prerequisite for, the capacity of the Law to contribute to the reproduction of the overall conditions that make capitalism possible, and thus its capacity to serve the interests of capital as a class (Balbus 1977, p. 585, emphasis in original).

Balbus’s theorization of law’s relative autonomy was not intended as a substitute for empirical investigation. His goal, he insisted, was reunification of structure with history. In this light, he noted, self-critically, that his theorization was if anything already outdated: The historical moment of competitive capitalism that informed it was over, creating conditions for a new and different homology and requiring investigation of the transition from one to the next.9 (I return to this question later in the review.) Yet because it was theorized precisely as a transcendent relationship, capital logic’s relative autonomy was difficult to realize in empirical work. More immediately, Marxist theories of law, never particularly influential in the United States, would be further marginalized in the rise of Critical Legal Studies (CLS) (see, e.g., Gordon 1982). For both reasons, though elegant, Balbus’s formulation did not prove particularly influential. 9

For a similar but more urgent depiction and analysis of a crisis of familiar concepts arising at a moment of radical historical decomposition, see Santos (1985, pp. 299–302).

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REFINING AND REJECTING RELATIVE AUTONOMY (EUROPE) Outside the United States, socio-legal investigation of the autonomy question continued to occur in conceptual and methodological terms suggested by, or at least extrapolated from, debates within European Marxism. One important innovation that built on Poulantzas’s (1973, 1978) constitutive analysis of law, for example, was undertaken during the 1980s by scholars like Anthony Woodiwiss, whose objective was to theorize relative autonomy in a manner that rendered it decisively open to empirical work, deployable in attempts to answer “specific historical questions” (Woodiwiss 1990a, p. 7). Starting from Marxist theory’s convergence upon relative autonomy as descriptive of a broadly structural relationship between law and capitalist society, Woodiwiss attempted a further and more rigorous specification of autonomy’s relativity at any given moment by turning to Foucault. Relative autonomy, he argued, inhered not in the structural relationship between law and society but in the particularities of legal discourse. For Woodiwiss, what was law at any given moment was determined by legal discourse’s own rules of formation. Law’s relationship to economy, as to any social process, was hence decisively mediated by the particularities and anomalies of its own process of creation. Intrinsic to that process and the basis of law’s autonomy, Woodiwiss (1990a, p. 10) argued, was a foundational and constitutive impulse to “consistency.” Consistency was legal discourse’s guiding sign, it was “the prime discursively produced object of law” (Woodiwiss 1985, p. 68). It was the foundation upon which was built law’s potent “background ideology-effect” of legitimation in relation to the social formation of which it is part. Precisely to enjoy social authority as a modality of rule, however, legal discourse had also to remain consistent with “the principles structuring the dominant or hegemonic discourses” abroad in society


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at large. This was “the most important criterion against which its consistency . . . is judged” (Woodiwiss 1990a, p. 11). Here, that is, lay the relativity of law’s autonomy. Understanding law as a compound of discourses and their practices, Woodiwiss argued, enabled one to investigate with some precision how law produces its effects, both foreground (specific outcomes) and background (ideology). Recalling Poulantzas, law “interpellates the subjects it addresses in such a way that they will be law-abiding” (Woodiwiss 1985, p. 72). It positions subjects relative to one another as its discourses prescribe. Subject positions “are constituted by the rights and duties that define them and therefore determine the relations that can or should exist between them”—husband/wife, employer/employee, and so forth. Subject positions are also simultaneously and independently constituted in other discourses with which law seeks consistency, but which may also interpellate subjects differently. When disciplinary equilibria achieved in one discourse, or among discourses, break down, they become the object of reinforcement in others. In law, reinforcement is performed by transpositioning—changing the position of the subject (from wife to civil respondent, for example; from employee to criminal defendant)—potentially effecting “a transformation of rights, duties and therefore relations” (Woodiwiss 1985, p. 73). As a medium of transpositioning, law enjoys autonomy— its transpositional capacities are not exercised functionally, according to the needs of capital, but according to the dictates of its own intrinsic technology as a discourse (its particular tactics, its power effects); nor is law necessarily the transpositioning discourse: One can imagine many other discourses with transpositional capacities. However, “conditions appropriate to the securing of capitalist production and exchange may strongly suggest an affinity with legalistic forms” (Woodiwiss 1985, p. 73). Moreover, in that affinity lies an ultimate (and restated) relationality. “In the same way that a particular legal system as an

ideological and political element represents a condition of the existence of the economy, then so too economic, as well as other political and ideological elements represent the conditions of existence of the legal system. For this reason one has to look beyond the law if one wishes to understand fully such juridical signifiers as constitutions, statutes, juristic arguments, and such disciplinary effects as decisions to proceed or not, degrees of enforcement and even judgments themselves” (Woodiwiss 1985, p. 75; see also Woodiwiss 1990b, p. 120; on transpositioning, see also Hunt 1992, p. 31). Woodiwiss’s resort to discourse analysis restated relative autonomy in poststructuralist terms, but it did not abandon socio-legal studies’ traditional commitment to look outside. Niklas Luhmann, in contrast, pressed the Foucauldian episteme to an entirely selfreferential conclusion. Law was one among a proliferation of self-contained epistemic subsystems into which modern society had fragmented, each of which “recursively produce their own elements from the network of their elements” (Teubner 1989, p. 736). Law’s complete autonomy (autopoiesis) was simply “fateful necessity” (see Nelken 2006a, p. 599). Even then the question remained to what extent and in what fashion distinct selfreferential subsystems might interact (couple): In what form did (could) knowledge flow from one to another? Divorced completely from a social conceptualized as observable and real—for each epistemic subsystem constructed its own social reality as an effect of discourse—autopoietic autonomous law still remained relational insofar as it enjoyed cognitive contact with other epistemic subsystems. “The simultaneous dependence on and independence from other social discourses is the reason why modern law is permanently oscillating between positions of cognitive autonomy and heteronomy” (Teubner 1989, p. 730). Permanent oscillation is far from relative autonomy but still expresses a desire to establish cross-border terms for a relationship between law and a social other—whether that www.annualreviews.org • How Autonomous Is Law?

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other is material or discursive (Nelken, 2006a, p. 599).10

REFINING AND REJECTING RELATIVE AUTONOMY (UNITED STATES)


In the United States, law’s autonomy question followed a somewhat distinct trajectory.11 One may summarize its arc by reference to Forbath’s (1991) prefatory discussion of the theoretical position informing his Law and the Shaping of the American Labor Movement. Forbath’s stated concern should by now be familiar: to determine “how far the legal order has had an autonomous role in social and political development.” It was posed as a challenge to the view (also by now familiar) that law was derivative, an epiphenomenon reflective of a more fundamental social and economic reality. We have seen that European theorists from Althusser onward had already proposed innumerable challenges to the concept of law as epiphenomenon. Nevertheless, Forbath argued to his largely American audience that

10 Marianna Valverde has responded skeptically to autopoiesis in terms that in fact extend to the entirety of the autonomy question. The hard divisions among epistemic subsystems that autopoiesis proposes are not reproduced in the way knowledge actually is used by lawyers and judges. As an attempt to theorize law’s borders, autopoiesis, like Bourdieu’s theorization of the legal field, like the different varieties of Marxist relative autonomy theory, is static. Borders can be mapped pragmatically, but mapping should always be dynamic: One should resist “structures [that] exist only in the imagination of researchers who cannot cope with the flux of life” (Valverde 2006b, p. 593). Valverde instead embraces “problematization”—that is, rather than approach law holistically (e.g., as a determinable field), one should concentrate on the diversity of strategies, practices, and objectives that emerge at specific conjunctures and attempt to determine the problematics—that is, the modes of problematization or relations of power and knowledge— that, at those conjunctures, inspire and produce this or that strategy and objective. As an instance of problematization put into effect, see Valverde (2006a). 11 Alternatively, one might say that the autonomy question followed the same trajectory but employed a distinct conceptual apparatus, one characteristic of which was largely failure to engage, or even to recognize affinities or debates, with European theorizing. An important exception is Heller (1984).

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the epiphenomenal understanding of law remained ascendant in modern social thought and was characteristic of socio-legal scholarship, which he held was inattentive to law’s “relatively independent power to shape social life” (Forbath 1991, pp. ix–x; Forbath managed this by treating epiphenomenal and superstructural as synonyms). What relative independence meant—whether it was intended to convey a conceptual inflection distinct from relative autonomy—was unclear: Forbath did not locate relative independence vis-à-vis any extant body of theory, structural or otherwise. But that was not his purpose. His book, rather, explored the idea, which he credited to CLS scholarship, that law was “constitutive” of the social (Forbath 1991, p. x). In Forbath’s argument, law was constitutive in two aspects. First, law (courts, the judges who presided over them, the law they made) created the material order of constraints and inducements that shaped all social action. Second, law set the ideological and cultural context in which actors encountered, comprehended, and reacted to those material constraints and inducements. “The language of the law, along with other discourses of the powerful, lays down the very terms within which subordinate groups are able to experience the world and articulate their aspirations” (Forbath 1991, pp. xi, 170). Both aspects identified law as the key agency of domination. Law, not “deeper forces,” shaped social action and social movements. Yet in law’s constitutive capacities, Forbath detected a certain double-edgedness. The instantiations of law’s autonomy—its language and meanings—were open-ended and mutable. Common law “ambiguities” and the U.S. Constitution’s “recessive radical strains” rendered American law sufficiently indeterminate as to grant even those whom law most thoroughly subordinated opportunities to seize and convert it to their own uses (Forbath 1991, p. 172). Both because it was a shaper of social movements and because it might be seized by them and itself reshaped, law became a decisive terrain for social


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struggle. There is a whiff of Thompsonian romance here, but only a whiff: Opportunity was located in indeterminacy, not in some exalted higher meaning one day to become manifest. As Forbath noted, in their U.S. articulation the arguments for law’s constitutive character—and for its indeterminacy—had been developed principally under the banner of CLS. An outgrowth of the law and society movement, CLS scholarship represented a critique of law and society’s instrumentalist tendencies (see, e.g., Tushnet 1977) but was also a law school–based reaction to law and society’s core research practices, notably the ascription of objective meaning through positivist social scientific inquiry. “The method Critical scholars employ stresses the study of appellate cases and other indicia of legal doctrine, but overlooks ‘empirical’ evidence of the social ‘impact’ of law or the behavior of legal actors” (Trubek 1984, p. 576). In the CLS project, law’s virtual autonomy as institutional formation, profession, discipline, and discourse became the point of departure; internal critique was the chosen strategy. Arguments for law’s constitutive capacities were shaped accordingly. One will encounter CLS’s version of both the constitutive and indeterminacy arguments in sophisticated and accessible expression in the work of Robert W. Gordon, notably in his justly famous and influential Stanford Law Review essay “Critical Legal Histories” (Gordon 1984).12 “Critical Legal Histories” is some-

12 Forbath (1991, p. x) identifies Gordon as a leading U.S. critic of the superstructural view of law, but this is, I think, a little misleading in that Gordon (1984, p. 4) actually disavows any intention to engage with “the interesting controversies among Marxist historians and theorists.” Doing so would require “introduction to a lot of specialized concepts and jargon,” for which an American audience would (as Teubner 1989 would also note) have neither use nor patience. Gordon remarks that U.S. debates occur in a kind of magnificently indifferent parallel universe: “[T]hese controversies have counterparts in the literature of American legal scholarship [, but] they are almost never referred to in that literature.” Having disclaimed any intention to engage with Marxist theorizing, Gordon does in fact offer occasional generalized and largely dismissive snapshot characterizations of various Marxisms throughout “Critical Legal

thing of a tour de force. Gordon assimilates the totality of prior socio-legal theorizing (from the mid-nineteenth century onward) to a single template or orthodoxy; rejects the template; and offers in its place a completely transcendent critical constitutive alternative. Gordon christens the template “evolutionary functionalism.” Evolutionary functionalism is the dominant and enduring account of the relationship between legal and social change embraced in one form or another in enlightened opinion since the early nineteenth century. It is distinguished by five signature propositions: (1) Law and society are separate social categories that can be described without recourse to each other but are related by a variety of causal mechanisms; (2) societies have needs; (3) there is an objective, determined, progressive social evolutionary path; (4) legal systems should be described and explained in terms of their functional responsiveness to social needs; (5) the legal system adapts to changing social needs (Gordon 1984, pp. 59–65). The essay, inevitably, demolishes evolutionary functionalism and hence all prior socio-legal theorizing; then it demolishes prior “partial” critiques of evolutionary functionalism, which retain too much loyalty to the essentials of the template to avoid its taint; and finally it erects CLS’s constitutive alternative on the newly vacant lot. The autonomy question is, obviously, deeply implicated in this exercise. Gordon takes law’s autonomy—“long-run structural characteristics that make legal practices outlast short-term swings in political pressure”— very seriously (Gordon 1984, p. 89; see also Gordon & Nelson 1988).13 In fact, it is precisely the obstinate historical evidence of “the autonomy problem”—that is, “the fact that legal norms and practices aren’t completely

Histories.” Collectively, these justify the conclusion that in Gordon’s world, as in Forbath’s, superstructure is indeed just another word for epiphenomenon. 13 Taking law’s autonomy seriously was an equally prominent component in Tushnet’s (1977) critique of Friedman.


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plastic and don’t alter every time another set of interests gets its paws on them because they do have some resilience, some long- or mediumterm continuity of inner structure” (Gordon 1984, p. 88)—that undermines both evolutionary functionalism and the partial critiques of it that Gordon catalogs. Among those partial critiques is a version of relative autonomy argumentation that Gordon tells us has informed CLS historiography: “[R]elative autonomy means that [legal forms and practices] can’t be explained completely by reference to external political/social/economic factors. To some extent they are independent variables in social experience and therefore they require study elaborating their peculiar internal structures with the aim of finding out how those structures feed back upon social life” (Gordon 1984, p. 101). But the statement seems far too brief and its expression too imprecise to serve any purpose other than prelude to its own rejection, which is in fact what comes next. CLS’s total critique of the dominant tradition (evolutionary functionalism) requires a complete transcendence of the tradition’s “division of the world into social and legal spheres” (Gordon 1984, p. 102). Gordon represents this as a blurring of the law/society distinction (Gordon 1984, p. 102), but as outlined it is more a reversal of the dominant tradition’s causal polarities: In the dominant tradition and its partial spin-offs, “the fundamental operations of th[e] world originate before law and go forward independently of it; they fashion in general outline (if not in tiny detail) the agendas and limits of legal systems and are beyond the power of law to alter” (Gordon 1984, p. 103, emphasis in original). Total critique produces the opposite: “the notion of the fundamentally constitutive character of legal relations on social life” (Gordon 1984, pp. 104, emphasis added). Indeed, it produces the claim that law is constitutive not merely of social life but of all life. For law is constitutive of consciousness itself—human imagination. If, as Roberto Unger (1987, p. 1) has put it, society “is made and imagined,” law lies behind both making and imagining, for it is, as


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Gordon states elsewhere, a “system of meaning” that “has the effect of making the social world as it is come to seem natural and inevitable” (Gordon 1982, p. 288; 1984, p. 109). What of the other claim, law’s indeterminacy? CLS’s strategy of “total critique and transcendence” had its greatest impact on the terrain—legal doctrine, “paradigm structures of [legal] thought”—most familiar to its largely law school–based proponents (Gordon 1984, p. 58, n.3; p. 116). Aware that their stress on law’s absolute autonomy and constitutive capacities had the appearance of simply switching from one kind of determinism (say, economic or material) to another (legal), CLS’s proponents simultaneously developed the indeterminacy thesis, which proposed “the a priori impossibility of consistency in [legal] signification” (Woodiwiss 1990a, p. 8). That is, critical analysis of doctrine exposed, at least to its own satisfaction, not only the absence of any determining relationship between law (particular rules and processes) and society (particular social practices, structures, or other discourses), but also the absence of any determinate meaning attributable to the rule considered on its own terms, stemming from its own internal contradictions. As a system of meaning, law might make a given world seem natural and inevitable by creating and reinforcing regularities in social practice, but that was a far cry from legal forms actually having lasting determinate effects. Admittedly, there were “plenty of shortand medium-run stable regularities in social life, including regularities in the interpretation and application, in given contexts, of legal rules.” But eventually regularities always decomposed, for law was indeterminate “at its core, in its inception” (Gordon 1984, p. 114). For CLS purposes, the indeterminacy thesis was satisfied by producing for every claim of a necessary relationship between a legal rule and a social practice an example of a distinct or inverse relationship. In the last instance, social life did not depend on a particular regime of rules, nor were its regularities the “necessary consequences” of that regime. No rule system


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could foreclose the possibility of outcomes other than those the rule system seemed to envisage, precisely because the rule system could, at will, be employed to generate any outcome (Gordon 1984, pp. 114–16, 125, emphasis in original).14 What would determine whether or not such sudden shifts in direction occurred? Politics (Gordon 1984, pp. 118, 125). The answer was intended to be enabling (Gordon 1982, pp. 291–92), but to the extent that relocating contests over rules in politics rather than in law was more than the tactical shift between interchangeable discourses suggested by the CLS mantra that “LAW IS POLITICS” (Schlegel 1984, pp 410–11), it reintroduced the tendency to legal determinacy that CLS arguments about doctrine had been designed to avoid. Paradigm structures of legal thought that did not determine any particular set of social consequences nevertheless did “‘determine’ . . . the categories of thought and discourse” for political conflicts (Gordon 1984, p. 118). We have already noted Gordon’s reference to the “long-run structural characteristics that make legal practices outlast shortterm swings in political pressure” (Gordon 1984, p. 84, emphasis added). If politics becomes the arena where conflicts occur over the production of rules intended to have social consequences, we must still ask what rules (discursive or otherwise) set the terms for conflicts over the production of rules. The answer, it appears, is law’s rules (see Dezalay & Garth

14 One might ask, pragmatically, how much law’s imputed indeterminacy actually matters in any given instance, given Gordon’s (1984, p. 125) readiness to acknowledge “predictable causal relations” between legal forms and social life in the (undefined) short and medium run. Is law indeterminate only in the last instance? If so, it is interesting to compare CLS’s emphases with the much more famous (and quite different) example of last instance reasoning, Althusserian relative autonomy. We have already seen, as Jessop (1980, pp. 341–42) commented, that “the Althusserian approach tends to be perfunctory” in its treatment of the last instance, focusing on “specific properties.” Despite its own admitted specifics of actual regularities and predictable causal relations, on the other hand, CLS chose to be anything but perfunctory when it came to ultimate indeterminacy.

2002, pp. 306, 307, 311; see generally Tomlins 1993, 2000, 2004).

THE SOCIAL: ORIGIN To this point, I have not given much critical attention to the virtually ubiquitous acceptance of the social as law’s relational other. CLS did not deviate: Even as its emphasis upon law’s constitutive capacities reversed the polarity implied in prior theorizations of the law-society relationship, it still identified itself as a genre of inquiry into the relationship of law with the social (Gordon 1984, pp. 124–25). Autopoietic theory declared law radically self-referential, yet as Nelken (2006a) has observed, the lure of the social exerted a strong pull on even its most faithful exponents in the legal field. Teubner, he argues, “prefers to treat the autopoiesis of the legal system as a matter of degree” and concedes “that law does in some way ‘respond’ to external influences” (Nelken 2006a, p. 599; see also King 1993). Generally, in the realm of law and society, the drive to sociologize law, to situate it in “an empirical social world,” continues apace, converging with modernist commitments to positive law and creating a socio-legal positivism so overwhelming that, Constable (2005, p. 9) muses, “one wonders what else law could possibly be.” One manifestation of failure to wonder what else law might be was the rise of the of/by slogan, which married the constitutive conclusions of critical theory with the externalism of sociologized approaches to produce a kind of all-purpose default statement: that law was at one and the same time constitutive of and constituted by society. On its face, one might take this to be nothing more than a somewhat awkward restatement of structuralist relative autonomy that expressed little of the latter’s attempt at least to specify rigorously what its terms actually meant, what relationality was actually implied. There is indeed something to this: In the socio-legal field, the of/by statement often serves more as a preliminary incantation than as a conceptual position that www.annualreviews.org • How Autonomous Is Law?

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actually informs analysis. But there is more to it than this. The of/by answer to the autonomy question actually has roots in a venerable and distinctly homespun U.S. research tradition that dates to the early-twentieth-century beginnings of sociological jurisprudence and to the original and foundational distinction that Roscoe Pound then drew between law in books and law in action (Pound 1910, p. 22; Parker 2006, p. 517). This is the tradition that did most in the United States to create the social as law’s other and the gap beloved of socio-legal studies. It continues to exert enormous influence on the U.S. socio-legal field a full century later. Divergence between the law in the books and the law in action, Pound had argued, was not of itself a novel phenomenon. “Law has always been and no doubt will always continue to be, ‘in a process of becoming’,” always in effect running behind action, or social life (Pound 1910, p. 22). The particular problem as Pound formulated it was that after years of lively innovation across the first threequarters of the nineteenth century, American juristic thought had ceased to stay abreast of the times: It had settled instead into a condition of stasis—stability—in which it was “incapable of solving new problems or of meeting new situations of vital importance to presentday life” (Pound 1910, p. 22). Pound blamed the divergence on the dominant historical school of American juristic thought, which he argued was rigidly committed to an outdated approach to law “as existing solely to secure liberty,” arrived at a priori and applied mechanically. This was “out of accord with current social, economic and philosophical thinking” (Pound 1910, pp. 24, 25–30). Whereas “kindred branches of learning”—philosophy, political science, economics, sociology—had grounded themselves more and more on “the economic and social interpretation” of life, in law the historical school’s obtuse “settled habits” had left legal science adrift on the tides of nineteenth-century philosophical idealism. Law, increasingly self-referential, was no longer catching up to action. It was irre-


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trievably dead, committed to ideas and patterns of thought that had long “ceased to be vital in other departments of learning” (Pound 1910, p. 25). The result was a yawning chasm between (dead) legal justice and the (living) justice of social life (Pound 1910, pp. 25, 30; on these themes, see also Parker 2006). What conclusion did Pound draw? Let us look the facts of human conduct in the face. Let us look to economics and sociology and philosophy, and cease to assume that jurisprudence is self-sufficient. It is the work of lawyers to make the law in action conform to the law in the books, not by futile thunderings against popular lawlessness, nor eloquent exhortations to obedience of the written law, but by making the law in the books such that the law in action can conform to it, and providing a speedy, cheap and efficient legal mode of applying it. On no other terms can the two be reconciled. In a conflict between the law in books and the national will there can be but one result (Pound 1910, pp. 35–36).

Pound’s conclusion stressed reconciliation with the national will as the means to recover law’s legitimacy. This Savigny-esque observation was no great innovation per se (on the German historical school and American jurisprudence, see Tomlins 2004, pp. 352– 65; the best account of the historical school of American jurisprudence to date is Parker 2006). Notwithstanding Pound’s claims of its obtuse self-sufficiency, late-nineteenthcentury American historical jurisprudence had identified a perfectly appropriate context for understanding law, namely custom. As Parker (2006) has argued, custom embodied life—it expressed commonalities of human action and belief in advance of law. In relation to custom, law was always “a little ‘behind,’ a little ‘dead’,” always reforming in an attempt to capture life in law’s crystalline form (Parker 2006, p. 486). In comparison with historical jurisprudence, Pound’s innovation actually lay in greatly sharpening the differentiation


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of the legal from its context in the process of recreating both as realms of specialized expertise or particular knowledge practices—on the one hand, law (revealing the facts of legal conduct); and on the other hand, those “kindred branches of learning”—philosophy, political science, economics, sociology (revealing the facts of human conduct). As itself a long-established legal category, custom had supplied a context for law formed out of law itself. It was this that Pound dismissed in 1910 as merely a priori (subjecting James Coolidge Carter to a somewhat tortured reading in order to do so: compare Pound 1910, p. 28, with Parker 2006, pp. 505– 8). Pound would later allow that custom as an invocation of life was in effect a way station to the social (Pound 1923, p. 68; Parker 2006, pp. 484–85). But historical jurisprudence’s fatal error remained that “it assumed progress as something for which a basis could be found within itself” (Pound 1923, p. 19). Pound’s sociological jurisprudence, in contrast, contextualized law by counterposing it to something other than itself, the social, an exterior human world wherein the “basis for progress” really lay (Wigdor 1974; Willrich 2003, pp. 104–15). Thus, in Pound’s project, studying law meant studying courts, their rules and their decisions, the sphere of the juridical, in light of the social conditions that summoned their attention, and the social consequences of those decisions. But how was this exterior social world to be apprehended? Unlike custom, the social was apprehended by resort to specific professional discourses, or expertises. As Pound says, when one wishes to “look the facts of human conduct in the face,” one actually does so by “look[ing] to economics and sociology and philosophy.” That is, one does not actually “look the facts of human conduct in the face” at all; one looks past them, to the expertises that tell one what they are and what they mean. Having made the social rather than custom the repository of life (human action) and having sharpened action’s differentiation from books by rendering each sphere the preserve

of distinct expertises, sociological jurisprudence then proceeded to the terms of reconciliation of the juridical with the social, books with action. Constituting them as separate spheres, sociological jurisprudence granted each a distinct reason for being. The juridical existed to react to and regulate “the facts of human conduct.” Having discovered those facts by resort to the expertises that revealed the social, the juridical acted by resort to law, its own expertise. Reconciliation hence meant the creation of discursive consistency, but in the case of law this was work that only lawyers could do—“to make the law in action conform to the law in the books . . . by making the law in the books such that the law in action can conform to it” (Pound 1910, p. 36). Reconciliation itself was conditioned on separation. Pound might contrast the tradition of the nineteenth century, when “we studied law from within,” with modern jurists who studied law “from without” (Pound 1921, p. 212). But sociological jurisprudence did not blur the object of study. Indeed, Pound’s entire career was dedicated to maintaining and defending the legitimacy and inviolability—the autonomy— of the juridical sphere in its relations with the social (Tomlins 2004, pp. 372–75).

THE SOCIAL: DEMISE? Here in Pound’s nutshell we encounter what, half a century later, would serve as the initiating template for the field of socio-legal studies in the United States: the legal, the social, and the gap between them (Feeley 1976).15 We have seen how social theories of law—whether

15 We do not at this point encounter much commentary on Pound’s disquisition upon expertises, with its suggestion that the social is knowable only by expertises (autonomous knowledge systems), and which also may be read to imply that the social only exists in the operations of expertises. In the intervening period, the social had hardened into measurable reality (as demonstrated and cataloged by Galanter & Edwards 1997). It would not be until the 1980s and later, as we have already seen, that poststructuralist sociology of knowledge would return the socio-legal field to a position from which it might inspect the possible implications of Pound’s observations.


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Weberian, or Marxist, or generically critical— struggled thereafter to produce formulations of the relations among these three objects of study. It will have been evident from my account that I think Marxist theory has considerable importance in this matter—more, certainly, than many U.S. socio-legal scholars have been willing to acknowledge. Hence the attention given it here. There remains the question of what these various efforts achieved and where matters stand at present. Marxist responses to the autonomy question—at least those issuing from capital logic theorists—tended to ground representations of law’s relative autonomy on conditions prevalent during the historical moment of competitive capitalism. The transactional correspondence (homology) between legal form and commodity form that Balbus (1977) explored assumed the supremacy of markets. But as we noted, Balbus himself affirmed that in the later twentieth century the historical moment of classic competitive capitalism was long past, and with it the idea of a logical (or for that matter structural) constant: “[T]he development of State-regulated monopoly capitalism has . . . witnessed an erosion of the rule of Law and the emergence of less formalistic, more instrumentalist and technocratic modes of social and political control; the Law as universal political equivalent gradually gives way to a series of relatively ad hoc techniques which, by their very nature, recognize specific interests and specific social origins” (Balbus 1977, p. 586, emphasis in original). What is important here is not the specific invocation of state monopoly capitalism as the foundation for a possible new era of analysis; “stamocap” (as Jessop quite delightfully abbreviates it; see Jessup 1980, p. 340) has not offered a particularly subtle Marxist perspective on law. What is important, rather, is the sensitivity underlying Balbus’s conclusion to the possibility that a move in time from one historically located modality of observable social-legal relationality to another (from, say, a transactional modality to a probabilistic or actuarial modality) will render the-


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ory appropriate to the first of limited applicability when it comes to explaining the second. The point is simple. Theory exists in a conjuncture. To the extent that it purports to explain its environment, theory is limited by that conjuncture [as Valverde (2006b) underscores in her withering excoriation of sociology’s propensity to produce “static models of social change”]. Although temporal conjunctures may be stable over long stretches, transhistorical statements about what law is should be treated with great caution. Balbus (1977, p. 587) recognizes the importance of reuniting structure and history. One may examine CLS’s emphasis on blurring the law/society distinction in the same manner. Blurring is offered as a historically transcendent alternative to evolutionary functionalism’s similarly transcendent separation of the legal and the social. The argument gathered strength, however, precisely because it was made in an era of blurring, in which law’s constitutive capacities—as discourse, profession, expertise, technique—were increasingly on display, nationally and internationally, penetrating the social to an extent unparalleled in previous eras (see generally Kagan et al. 2002, Dezalay & Garth 2002).16 We have already seen, from the brief account of the emergence of sociological jurisprudence, how the distinction between the legal and the social was constituted in a juridical theory precisely at a moment when a separation of the social from the legal was rendered observable in the aggressive theoretical constitution of the social as distinct (Pound 1910, pp. 30–31; Tomlins 2000, pp. 922–23, 925– 26). Currently, we observe the erosion of that distinction in contemporary practice and theory. Both evolutionary functionalism and the critical response to it purported to make 16 In Tomlins 2000, I have argued that asserting authority over rule production in the face of rival claims and expertises (sometimes defensively, sometimes aggressively, always with substantive variation in the techniques and discourses of assertion) is a cyclical phenomenon that repeats throughout modern U.S. legal history. See also Tomlins (2004).


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transhistorical relational statements in answer to law’s autonomy question, but law is not, per se, a phenomenon with constant attributes the nature of which place it and the contexts in which it is located in a constant relationship—instrumental-functional, relatively autonomous of, constitutive of, constituted by. Each relational statement is worthy of serious examination; each may be more or less appropriate at a given moment or to describe a given situation. Approached historically, however, law’s relationality is not susceptible to a single theorization (Tomlins 1993, pp. xiii–xiv, 28–34).17 Current scholarship, both empirical and theoretical, appears to be responding both to the resurgence of the legal that, I have argued, marks the current (post-1970s) conjuncture, and to its expression—not the routines of underlying forces but the specificities of the manner in which the legal and the social penetrate, form, plunge into each other. New Legal Realism (Erlanger et al. 2005, Gulati & Nielsen 2006, Garth 2006) represents a “postmodern” socio-legal studies, which recognizes that “the reciprocal, recursive nature of the interaction between law, experience and culture makes it impervious to analysis by any particular theory” and attempts a kinship of the dynamic and the structural through situated, context-sensitive em-

17 Of course, merely placing law in historical time does not really get one much further as long as historical time is conceived of as homogenous and continuous—as modern history seems inclined to think of it. We should instead consider historical time as a diversity of distinct temporalities whose conjunctions are problematic. For example, Althusser argues that different levels of the complex social whole have entirely different historical temporalities. “We have to assign to each level a peculiar time, relatively autonomous and hence relatively independent, even in its dependence, of the ‘times’ of the other levels” (Althusser & Balibar 1979, p. 99 and generally pp. 91–118). Benjamin treats “the continuum of history” as the creation of bourgeois historicism, which “contents itself with establishing a causal connection between various moments in history . . . telling the sequence of events like the beads of a rosary.” To this he contrasts historical materialism’s “constellation” of past and present (Benjamin 1968 [1940], pp. 261–63). I explore these ideas in Tomlins (2008).

pirical research (McEvoy 2005, p. 437). Of some considerable significance is New Legal Realism’s denial of transcendent explanatory ambition, its explicit situation of itself in “the character of our experience at this historical moment,” and its characterization of other explanatory traditions in the field in like terms (McEvoy 2005, p. 448, and see pp. 434, 443). New Police Science (Dubber & Valverde 2006) is a genre of research distinct in substance—to the extent that its object of study can be stated simply, “governance” or “rule” is as good as any—but not in its judicious apprehension of the limits of theory (science) and its emphasis on situated empirical inquiry. New Police Science approaches police on the broadest governmental-legal terrain, local and international, “in terms of the circumstances in which it [police] is produced, the actions that signify its presence, the locales in which it occurs, and the modalities by which it rules” (Tomlins 2006, p. 254). New work in the tradition of Bourdieuvian sociology that examines the role of law and lawyers in the production of postwar Europe stresses “the blurriness and fuzziness of law and politics” as conventional domains of analysis and chooses instead to reconstruct lawyers’ and jurists’ strategies with such specificity as to be virtually an exercise in the prosopography of particular historical-geographic conjunctures (Cohen et al. 2007; for a distinct example, see Dezalay & Garth 2008). Valverde’s emphasis on dynamic problematization is distinct in that she rejects all static (structural) models of motion (including Bourdieu’s) and their “underlying social forces” in favor of “surfaces and the means by which law achieves its ‘truth effects’” (Valverde 2006b, p. 592, 593; Nelken 2006b, p. 572). But as discussed above, socio-legal studies itself appears to be shifting its attention from “deeper social forces” to the instance. Hunt’s (1992) mobilization of “transpositioning” and “structural coupling” is distinct again, but represents yet another response to the same conjunctural interpenetration of law and the social. It is a means to approach linkages and interdependencies www.annualreviews.org • How Autonomous Is Law?

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of law and the social that is relatively indifferent to older questions of general directionality and causality—the autonomy question— favoring instead investigation of particular uses and representations of law (as discourse, profession, expertise, technique) at particular conjunctures. “We should not assume either that law dominates or incorporates other discursive and institutional practices, or, conversely, that law is subsumed by other disciplinary discourses or practices. Directionality and causality must always be questions of specific historical and contextual investigation” (Hunt 1992, p. 31).


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CONCLUSION: A HISTORICAL SPECULATION All this notwithstanding, the conjunctures that current and recent socio-legal research explore remain to a considerable extent relationally fixated on the social as other. As Constable (1994, p. 588 and, generally, pp. 572–90) remarks, for philosophers and researchers, for those who accept sociological knowledge as the truth about law and for those who live in a society that accepts such truths, law becomes what sociology knows it to be: the norms (in their double sense) of a population; the management of risks and interests; the policies enforced by officials in the context of belief in the justice of state violence or, in other words, positive law. Sociology— whether as science or as interpretation, as law or as philosophy—speaks the truths of positive law in the language of belief and appearance, the language of “legitimacy,” “values,” “norms,” “distribution,” and “policy.”

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cease to be law’s designated relational other, whether there are other relationalities that are worth investigating. I suggest two: justice and memory. As befits the moment, they inflect (plunge into) each other. Justice is, of course, a familiar if elusive relational other to law. It is what law is supposed to pursue. In a tradition earlier than ours, Constable (2005, p. 14) notes, “law issued from justice.” In the early twentieth century, justice became restated in the terms of sociology as social justice and contrasted to an effete legal justice that could reconstitute itself as just only to the extent that it became socially (that is sociologically) effective (Pound 1910, and see generally Willrich 2003). The possibility of its recovery in different form is the point made in Constable’s most recent work, which teaches two lessons. First, when it comes to characterizing modern law, the socio-legal positivism (sociologized law) that Pound pioneered makes perfect sense. It is a way of conceiving law that indeed reveals modern law. Unfortunately, it cannot conceive of law, or reveal it, on any other terms (although for the outline of a suggestion, see Nonet 1976). So although socio-legal positivism indubitably identifies the kind of law that contemporary law is, other ways of conceiving law are necessary if we are to reveal the other kinds of law that contemporary law might also be (Constable 2005). For her part, Constable suggests that approaching modern law’s silences rather than its effects identifies and holds open the ways that law might also be justice. Constable (2005, p. 12) proceeds historically, invoking memory, “recall[ing] to modern law possibilities that already will have been.” Throughout this review, I have shown that history furnishes standpoints on law’s relationality. Here at the end, however, we encounter a practice of history that departs significantly from the practices with which we have become familiar, for these—“history as practiced by modern historians” (Gordon 1997, p. 1024)—express a contained past, an


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empirically social, sociologized world, temporally severed from the present, deeply vulnerable as such to Valverde’s critique of social science in that they too create “static models of motion” from which historians construct narratives that parse and reparse an always contained and severed past (as on display, for example, in modern historians’ obsession with organizing historical time into periods). A historical practice that purposefully recalls into the present what already will have been breaches both containment and severance. It implies nonmodernist conclusions about the extent and limits of historical time in which, for example, that which already will have been continues to be present to us as a specter (Derrida 1994); or incognito, until recognized by one who will recall it (Constable 2005); or dormant, until its eruption into the present insists upon our recognition (Benjamin 1968 [1940], p. 255). In history, the essential relationality is that of past and present. Memory is their connective tissue. Modernity has (quite literally) disciplined memory. It produces and reproduces the past as inert by giving it over to an expertise—professional historical practice— to study at will but always to reproduce as severed from the present in much the same fashion as Pound severed law from custom and gave it over to a new sociological expertise. These disciplinary developments oc-

curred at the same time and were driven by the same processes for the same reasons. They overlapped. But the conjuncture that produced them has decomposed, and with it recognition of the terms of their boundedness—that is, of socio-legality’s autonomy question on the one hand and of history’s severance of past and present on the other—has dawned. Hence, the opportunity exists to which Constable adverts: to discover in law’s interstices a new relationality for law, a nonsociologized (live) justice. Hence also, the opportunity exists to discover, for the present, a nonsociologized (live) past. Their connection? As Marx reminds us, the creation of our modern social formation entailed forgetting: “[T]he memory of use-value . . . become[s] entirely extinguished in th[e] incarnation of exchange value”; the recreation of individuals as equal citizens entails forgetting all the ways in which they are qualitatively distinct: “the qualitatively different contents of the needs of subjects as well as the qualitatively different activities and structures of social relationships in which they participate” (Balbus 1977, pp. 574, 576, emphasis in original; for other explorations of the connection, see Valverde 1999, Tomlins 2007). Memory conditions the possibilities for retrieval of a nonsociologized justice. Here are relationalities for law that free spirits might choose to explore.

DISCLOSURE STATEMENT The author is not aware of any biases that might be perceived as affecting the objectivity of this review.

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Horwitz MJ. 1977. The rule of law: an unqualified human good? Yale Law J. 86:561–66 Hunt A. 1992. Foucault’s expulsion of law: toward a retrieval. Law Soc. Inq. 17:1–38 Hurst JW. 1950. The Growth of American Law: The Law Makers. Boston: Little, Brown Jessop B. 1980. On recent Marxist theories of law, the state, and juridico-political ideology. Int. J. Sociol. Law 8:339–68 Jhering R. 1913. Law as a Means to an End. Boston: Boston Book Kagan RA, Garth B, Sarat A. 2002. Facilitating and domesticating change: democracy, capitalism, and law’s double role in the twentieth century. In Looking Back at Law’s Century, ed. A Sarat, B Garth, RA Kagan, pp. 1–31. Ithaca/London: Cornell Univ. Press King M. 1993. The “truth” about autopoiesis. J. Law Soc. 20:218–36 Levine FJ. 1990. “His” and “her” story: the life and future of the law and society movement. Fla. State Univ. Law Rev. 18:69–90 Mazor L. 1972. The crisis of liberal legalism. Yale Law J. 81:1032–53 McEvoy AF. 2005. A new realism for legal studies. Wis. Law Rev. 2005:433–54 Merritt A. 1980. The nature and function of law: a criticism of E.P. Thompson’s “Whigs and Hunters.” Br. J. Law Soc. 7:194–214 Nelken D. 2006a. Getting at law’s boundaries. Soc. Leg. Stud. 15:598–604 Nelken D. 2006b. Law and knowledge/law as knowledge. Soc. Leg. Stud. 15:570–73 Nonet P. 1976. For jurisprudential sociology. Law Soc. Rev. 10:525–45 Parker KM. 2006. Context in history and law: a study of the late nineteenth-century American jurisprudence of custom. Law Hist. Rev. 24:473–518 Posner RA. 1987. The decline of law as an autonomous discipline. Harvard Law Rev. 100:761– 80 Poulantzas N. 1973. Political Power and Social Classes. London: New Left Books Poulantzas N. 1978. State, Power, Socialism. London: New Left Books Pound R. 1910. Law in books and law in action. Am. Law Rev. 44:12–36 Pound R. 1921. The Spirit of the Common Law. Boston: Marshall Jones Pound R. 1923. Interpretations of Legal History. New York: Macmillan Riles A. 2006. Anthropology, human rights, and legal knowledge: culture in the iron cage. Am. Anthropol. 108:52–65 Santos BS. 1985. On modes of production of law and social power. Int. J. Sociol. Law 13:299–336 Schlegel JH. 1984. Notes toward an intimate, opinionated and affectionate history of the conference on critical legal studies. Stanford Law Rev. 36:391–411 Silbey SS. 2005. After legal consciousness. Annu. Rev. Law Soc. Sci. 1:323–68 Teubner G. 1989. How the law thinks: toward a constructivist epistemology of law. Law Soc. Rev. 23:727–58 Thompson EP. 1975. Whigs and Hunters: The Origin of the Black Act. Harmondsworth: Penguin Books Thompson EP. 1978. The Poverty of Theory & Other Essays. New York/London: Mon. Rev. Press Tomlins CL. 1993. Law, Labor and Ideology in the Early American Republic. Cambridge, UK/ New York: Cambridge Univ. Press Tomlins CL. 1995. Subordination, authority, law: subjects in labor history. Int. Labor WorkingClass Hist. 47:56–90 Tomlins CL. 2000. Framing the field of law’s disciplinary encounters: a historical narrative. Law Soc. Rev. 34:911–72 Tomlins CL. 2004. History in the American juridical field: narrative, justification, and explanation. Yale J. Law Humanit. 16:323–98 Tomlins CL. 2006. Framing the fragments. Police: genealogies, discourses, locales, principles. See Dubber & Valverde 2006, pp. 248–94 www.annualreviews.org • How Autonomous Is Law?

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Tomlins CL. 2007. The threepenny constitution (and the question of justice). Ala. Law Rev. 58:979–1008 Tomlins CL. 2008. Constellations of class in early North America and the Atlantic world. In Class Matters: Early North America and the Atlantic World, ed. BG Smith, S Middleton. Philadelphia: Univ. Penn. Press. In press Trubek DM. 1972a. Max Weber on law and the rise of capitalism. Wis. Law Rev. 1972:720–53 Trubek DM. 1972b. Toward a social theory of law: an essay on the study of law and development. Yale Law J. 82:1–50 Trubek DM. 1977. Complexity and contradiction in the legal order: Balbus and the challenge of critical social thought about law. Law Soc. Rev. 11:529–69 Trubek DM. 1984. Where the action is: critical legal studies and empiricism. Stanford Law Rev. 36:575–622 Trubek DM. 1990. Back to the future: the short, happy life of the law and society movement. Fla. State Univ. Law Rev. 18:4–55 Tushnet M. 1977. Perspectives on the development of American law: a critical review of Friedman’s “A History of American Law.” Wis. Law Rev. 1977:81–109 Unger R. 1987. Social Theory: Its Situation and Task. Cambridge, UK/New York: Cambridge Univ. Press Valverde M. 1999. Derrida’s justice and Foucault’s freedom: ethics, history, and social movements. Law Soc. Inq. 24:655–76 Valverde M. 2006a. “Peace, order and good government”: policelike powers in postcolonial perspective. See Dubber & Valverde 2006, pp. 73–106 Valverde M. 2006b. The sociology of law as a “means against struggle itself.” Soc. Leg. Stud. 15:591–97 Wigdor D. 1974. Roscoe Pound, Philosopher of Law. Westport, CT: Greenwood Willrich M. 2003. City of Courts: Socializing Justice in Progressive Era Chicago. Cambridge, UK/New York: Cambridge Univ. Press Woodiwiss A. 1985. A theoretical prologue to a socialist historiography of labour law: discourse and transpositioning. Int. J. Sociol. Law 13:61–78 Woodiwiss A. 1990a. Rights v. Conspiracy: A Sociological Essay on the History of Labour Law in the United States. New York/Oxford/Munich: Berg Woodiwiss A. 1990b. Social Theory After Postmodernism: Rethinking Production, Law and Class. London: Pluto


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Half Empty, Half Full, or Neither: Law, Inequality, and Social Change in Capitalist Democracies Robin Stryker Department of Sociology and Law School, University of Minnesota, Minneapolis, Minnesota 54555; email: [email protected]


Key Words

First published online as a Review in Advance on August 6, 2007

discrimination, economy, institutionalism, politics, rights


Abstract Reviewing research on organizational compliance, the politics of law, law and social movements, law and inequality, and law and social change, this article examines conditions under which legal institutions have more or less capacity to promote inequality-reducing social change in democratic capitalism. Law produces social change through a combination of rational adaptation to legal incentive structures, cultural meaning making and institutional diffusion, and political mobilization and counter-mobilization. Substantive effectsoriented administrative, adjudicative, and organizational interpretations of welfare-oriented legislation maximizes inequality reduction. These interpretations are most likely to be achieved through a combination of collective mobilization for strategic litigation in conjunction with sustained political mobilization from below both in society and in organizations, accompanied by the influence in implementation and also active monitoring by law and social science–savvy reformers representing the interests of disadvantaged classes and groups.

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INTRODUCTION


Founded in the United States in 1964, the Law & Society Association (LSA) began life coterminous with Johnson’s War on Poverty, expansion of legal services to the poor, and enactment of landmark civil rights legislation. A few years later, I majored in sociology in college and learned not only about institutionalized racism, but also, consistent with McCann’s (1994, p. 288) assessment of the “relatively optimistic” tenor of law and society scholarship at the time, that formal law could change behavior, although it probably could not change people’s attitudes. However, as McCann (1994, p. 288) notes, for law and social scientists, it was not long before “hope gave way to frustration as scores of studies detailed the institutional and ideological limitations of legal strategies for advancing social change.” The changing tenor of scholarship is highlighted by such works as “Why the ‘Haves’ Come Out Ahead” (Galanter 1974), The Politics of Rights (Scheingold 1974), and The Hollow Hope (Rosenberg 1991). Supported by claims that plural, contradictory forms of legal consciousness exhibited in everyday life provide powerful support for the status quo (Ewick & Silbey 1998), the pessimist might argue: “Don’t be naive! Everything you do will end up reproducing capitalism, patriarchy, institutional racism, and Western hegemony.” Forty plus years after the LSA’s founding, there is substantial scholarship suggesting how law creates, extends, reinforces, or at best leaves intact class, race, gender, and other inequalities. But there also is much literature specifying how and under what conditions law can mitigate or undermine such inequalities, contributing to progressive social change. Juxtaposing the two suggests that boundless pessimism is as unwarranted as boundless optimism. There clearly are limits to law as a force for mitigating inequality. But there also may be limits to those limits. This article reviews extant literature, assessing the cumulative import of what we

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know and identifying where we might usefully go from here. It first lays out general parameters of the more pessimistic versus optimistic approaches, using labor law to show why law’s capacity to reduce inequality can be seen as a glass half empty or half full. The review then discusses foundational studies and recent research. Given space constraints, the review is confined to the prodigious literature on law, inequality, and social change in democratic capitalism.

GENERAL PARAMETERS Study of law, inequality, and social change in democratic capitalism begins with more general approaches to law and political economy (Trevino 1996, Sutton 2001, Edelman & Stryker 2005). On the one hand, “liberal legal philosophy holds that western legal systems are neutral, impartial as between the parties and autonomous from the rest of society, such that law is indifferent to economic, political and social inequalities among litigants” (Stryker 2006, p. 348). On the other hand, inequality was foundational to the classical social science of law. Both Karl Marx and Max Weber focused on whether and how law helped construct, reproduce, and transform systems of inequality. In Marx’s historical materialism, law, with the polity, was superstructure, reflecting and reinforcing class inequalities built into relations of production. For Marx, law could become a battleground or object of class struggle, but law was not a major causal force in history (Edelman & Stryker 2005). Despite this foundation for the total absence of hope in law’s capacity to reduce class inequality, Marx himself sometimes acted as if law mattered for progressive social change by engaging in legal critique (Stryker 2006). Weber complicated things by positing a reciprocal, two-way street between law and other social institutions. Emphasizing the conjoint, mutually reinforcing rise of formalrational law and of capitalism in Western


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Europe, Weber argued that formal-rational law provided legal rights and guarantees to parties in economic exchange. These rights and guarantees increased predictability and certainty in contractual relations that, in turn, enhanced the likelihood that promises were kept, promoting market exchange. Market exchange then promoted further change in business and contract law (Trevino 1996, Stryker 2003). Law, polity, and economy intertwined in the concept of legal personhood. With other key concepts, including agency and negotiable instruments, legal personhood facilitated high degrees of calculability, predictability, and systematization in the economy and capital and economic power concentration in large-scale business corporations (see also Commons 1924). Legal personhood, making business organizations bearers of universal rights entitling them to formal equal treatment under law, also “bridges between development of ‘rule of law’ institutions and belief in legality in the polity, and the construction and reproduction of capitalist economic ideologies,” firms, and markets (Stryker 2003, p. 339). Indeed, there is a large empirical literature showing how economic law in capitalism facilitated trade, development, and economic growth, while promoting concentration and centralization of capital and shaping models of competition and cultures of control (Dobbin & Dowd 2000, Fligstein 1990, Fligstein & Stone Sweet 2002, Sklar 1988, Roy 1990, Traxler et al. 2001). Most such studies do not focus on law and inequality per se, but they show the association between capitalist law and a social change trajectory tending toward increasing inequalities of wealth and power. Law and social science research focused directly on law, inequality, and social change inhabits terrain configured by confronting Marx’s assumptions against those of Weber. Within this terrain, all presume that legal action and institutions are embedded in social action and institutions, such that the idea of legal autonomy presented by liberal legal philosophy is false (Edelman & Stryker

2005, Ewick & Silbey 1998). Marx and Weber presumed that dominant classes and groups seek to perpetuate their dominance. Research based on this assumption specifies how wealth, status, and economic and social power provide resource advantages to shape legislation in polities constituted on the formally egalitarian “one person, one vote” principle (Lempert & Sanders 1986, Stryker 2003, Edelman & Stryker 2005). Elites try and often succeed in enacting economic and social stratification systems into law (Stryker 2006). Blatant examples are voting restrictions based on property and gender prior to adult universal suffrage in the United States and Western Europe, Jim Crow laws perpetuating second-class citizenship for blacks in the U.S. South after Reconstruction, South African race laws under apartheid, and property and family laws reinforcing women’s subordination in North Africa and South Asia (McIntyre 1994, Frederickson 1981, Agarwal 1995, Charrad 2001). Nonetheless, if history convinces that economically determinist readings of Marx must give way to Weber’s image of intersecting, reciprocally constructed domains for legal and other social institutions, then law must have some autonomy. If so, there is room for law to mitigate inequality. It is no accident that neoMarxists were pushed to invent theories of the capitalist state and law featuring the concept of relative autonomy, to assimilate the advent of social welfare and regulatory legislation including minimum wage, maximum hour, and occupational safety and health laws; labor laws promoting collective bargaining; antidiscrimination laws protecting women and racial, ethnic, and religious minorities; and pensions, unemployment assistance, accident insurance, and public assistance (Miliband 1969, Poulantzas 1973, Balbus 1977, Skocpol 1980, Stone 1985). Lempert & Sanders (1986) help situate current debates. Expanding on Weber’s (1978) distinction between formal-rational and substantive-rational law to clarify when legislative and adjudicative law is more or www.annualreviews.org • Law, Inequality, and Social Change

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less autonomous from dominant politicaleconomic actors and interests in democratic capitalism, the authors specify the arena most likely to lead to law-induced, equalitypromoting social change. Noting that legislation can be differentiated according to whether it is “on [its] face status neutral” or “take[s] explicit account of social or economic position,” Lempert & Sanders (1986, pp. 431, 436) suggest that, because purposive statutes “openly seek to advance specific subsets of social interests,” they are on their face “distributivelyoriented.” Meanwhile, because status-neutral laws “attribute meaning to behavior based on the legal categories into which the behavior fits and not on the meaning it may have in the larger society . . . [such laws] give the same rights and duties to all who fit the category created.” Because they “do not on their face mandate actions imposing special costs on a preexisting class of organization or individuals or give special benefits to another such class,” status-neutral laws “are well suited to judicial formalism,” and “have the appearance of distributive neutrality” (Lempert & Sanders 1986, pp. 431, 436). Nonetheless, status-neutral legislation has distributive consequences, “determined by the actions of individuals and organizations and the way these parties choose to invoke the law . . . . [I]mplications of formally neutral law for social justice depend crucially on the distribution of power in nonlegal spheres” (Lempert & Sanders 1986, pp. 431, 437). Moreover, “if the law does not recognize the way that individuals are unequally situated, it can neither compensate for inequalities nor develop programs to obliterate them” (Lempert & Sanders 1986, p. 437). In short, status-neutral law only appears autonomous from dominant class interests. Appearing autonomous legitimates it, but its formal egalitarianism masks, legitimates, and often exacerbates substantive inequality (Lempert & Sanders 1986, p. 439; Balbus 1977). This restates in more general terms Marx’s argument that formally egalitarian political rights deny


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the importance of class while ensuring that class determines people’s lives (Sutton 2001, p. 75). Although status-neutral legislation is not distributively neutral, its impact is more equivocal than the impact of legislation that is, on its face, distributively oriented. Within the latter, Lempert & Sanders (1986, p. 431) distinguish between legislation providing classoriented endowments that benefit dominant classes and groups and welfare-oriented endowments that benefit subordinate classes and groups. The former are an especially “powerful force for the preservation or extension of existing inequalities, since [they] reinstitutionalize the power of the dominant class in the legal arena.” The latter are “potentially a means to increased social justice” (Lempert & Sanders 1986, p. 433). For legislative law to reduce social and economic inequality, it may be necessary, but not sufficient, for law to be substantively oriented to provide benefits to the disadvantaged (Pedriana & Stryker 2004). At the same time and following Weber (1978), legislation can be interpreted in ways that are more substantive than formal (Lempert & Sanders 1986, pp. 444, 451; Sutton 2001). When courts use substantive standards for interpreting law to realize the same “extralegal norms and values” that motivated a legislature to enact welfare-oriented legislation, this is likely to maximize equalizing social impact (Pedriana & Stryker 2004; Lempert & Sanders 1986, pp. 444–45). Debate between relative optimists and pessimists revolves around whether, how, and how much administrative and court enforcement combined with organizational compliance behavior in response to enforcement of welfareoriented statutes reduces wealth, status, and power disparities originating outside the formal legal system or, conversely, co-opts subordinate groups through symbolic displays leaving elite wealth, status, and power in society intact. Although the correlation is imperfect, relative pessimism also tends to be associated with emphasizing law’s constitutive rather than

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instrumental resource value (Paris 2006). As Stryker (2006, p. 342) notes, [W]hen actors use law strategically to get what they want—whether money, power,


social status or self esteem—legal rules operate as cultural resources that are mobilized instrumentally. When legal rules provide interpretive scripts to help actors define and understand and/or evaluate themselves, others and their situations, they are resources operating—often unselfconsciously—in constitutive or normative fashion.

Thus, law shapes social action and institutions through cognitive or constitutive, normative and instrumental social mechanisms (Stryker 2003). These in turn are building blocks of two intersecting processes—political resource mobilization and counter-mobilization and cultural meaning making and institutional diffusion—through which legal and economic institutions, interests, actors, and norms are mutually endogenous (Edelman & Stryker 2005, Stryker 2003). Whereas Lempert & Sanders (1986) emphasize especially a concept of law as strategic resource mobilized in conflicts of interest and power among contending groups, today’s “theoretical conception of law and its relationships to culture and politics . . . is more often characterized as ‘constitutive,’ but perhaps is best called ‘culturalist,’ viewing law as seamlessly part of the social construction of identities, understandings, problem definitions and the like” (Paris 2006, p. 1015). For example, Steinberg (2003) showed how eighteenthand early nineteenth-century labor relations in England were constituted in part by interpretations of master-servant law by local courts that employers mobilized for help controlling workers. Master-servant law and associated workplace cognitive and behavioral repertoires did not stem from control relations somehow pre-established in the economy, but rather formed a general sphere of legality that helped constitute and legitimate changing workplace relations. Law’s consti-

tutive power here is antithetical to politicaleconomic equality. Meanwhile, examining the relationship between American labor law and the collective identity of the American labor movement, Forbath (1991) showed the complexity of political and cultural change mechanisms operating to make law and society mutually endogenous in ways that simultaneously mitigate and reinforce inequality. In totality, labor law research is a perfect fit to the glass half-full/half-empty image of law’s capacity to reduce inequality.

LABOR LAW AS PARADIGMATIC EXAMPLE Focusing on the late nineteenth–early twentieth centuries, Forbath (1991) showed that U.S. judicial review contrasted with continental code law and also with common law in Britain, in which judicial review’s absence meant that Parliament’s decisions reigned supreme. As state repression and the aborted revolutions of 1830, 1848, and 1870 in France illustrate, negative incentives confronted working-class action in Europe as well as in the United States. But there were greater rewards to radical working-class politics, offsetting costs, where legislative law could not be nullified by courts, than where legislation had to pass court scrutiny for constitutionality. U.S. courts in the nineteenth century routinely invoked common law criminal conspiracy doctrines to repress unionizing or striking workers. As this strategy waned, employers mobilized courts to extend notions of property and issue injunctions against employees’ workplace collective action (Hattam 1993, Forbath 1991, McCammon 1993a,b). Quantitative analyses by McCammon (1993b) show that, from the early 1880s to early 1930s, labor injunctions ended strikes specifically enjoined and also lessened other workers’ willingness to strike. Judges issued injunctions especially to limit strikes over workplace control and broad-based sympathy strikes and boycotts (McCammon 1993b, Forbath 1991). Courts also vitiated amendments to the Sherman www.annualreviews.org • Law, Inequality, and Social Change

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Antitrust Act designed to eliminate labor injunctions, permitting injunctions to continue. As European labor movements achieved legislative rewards for political mobilization, American unions likewise campaigned successfully for state-level legislation setting minimum wages, maximum hours, and improved working conditions. But American judges repeatedly used judicial review to invalidate gains as unconstitutional violations of freedom of contract (McCammon 1993b, Forbath 1991). This exceptional lose-lose combination of legal incentives contributed strongly to the evolving character of the American labor movement, deradicalizing it and moving it away from broad-based political action toward the voluntarist, relatively narrow, and economistic trade unionism associated with the American Federation of Labor (AFL) (Stryker 2003). Injunctions on labor’s workplace collective action combined with invalidating labor-friendly legislation to transform AFL leaders’ strategic calculi and reconstitute labor’s collective identity. Court language casting striking workers as outlaws prompted union leaders to partially internalize this negative identity even as they resisted the labor injunction. Over time, AFL leaders saw that mobilizing “recessive” and “radical” possibilities in U.S. rights discourse to gain collective action rights was essential, while pursuing political-economic reform through legislation was futile (Forbath 1991, p. 135). “The negative antistatist goal of ‘industrial liberty’ became labor’s watchword, but success in obtaining the right to unionize would come at the cost of abandoning a broad-based and political class unionism with its ‘more radical ways of describing and criticizing the nation’s political economy’” (Stryker 2003, p. 351, quoting Forbath 1991). Labor “entered a discourse in which the legitimacy of corporations’ power over economic life was not ‘dangerously questioned’” (Forbath 1991, p. 135, citations omitted). At the same time, labor mobilized “recessive, radical strains and possibilities” in the courts’ constitutional


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rhetoric of private rights, reinforcing the economic and legal power of a rights discourse that “ratified many of industry’s asymmetries of power” (Forbath 1991, p. 135). The Norris LaGuardia anti-injunction bill of 1933 and the National Labor Relations Act of 1935 (NLRA) helped U.S. workers organize. From 1935 to 1947, the NLRA made the federal government an affirmative promoter of unions and collective bargaining, helping to increase workers’ wages (Stryker 1989). In 1938, the Supreme Court declared the NLRA constitutional, and federal legislation established a minimum wage. In short, as Stryker (2003, p. 351) noted, for the American labor movement, “mobilizing law worked in contradictory fashion. It helped improve labor’s economic well-being, but it also helped keep labor in a subordinate role in an increasingly taken-for-granted business-hegemonic political economy” (see also Tomlins 1985, 1993). Research on later time periods also shows law’s contradictory impact on U.S. labor’s economic well-being and power. NLRA promotion of unionization and collective bargaining prompted strong employer backlash. In 1947, Congress enacted the Labor Management Relations Act (LMRA) (Stryker 1989). Weakening protection for workers’ rights to strike and unionize and setting out union unfair labor practices to balance those for employers, the LMRA dramatically reshaped employerunion relations from what they were in 1935– 1947. The original NLRA effectively undermined key antiunion strategies mobilized by early twentieth-century American employers (Griffin et al. 1986, Stryker 1989). Similarly, time series analyses by Rubin et al. (1983) show that during the NLRA, but at no other time, increased labor militancy—measured by strikes—and increased unionization were mutually reinforcing. In contrast, Rogers (1990) suggests that LMRA implementation intensified U.S. unions’ weakness and fragmentation relative to strong, centralized, or more political unions in Western Europe. McCammon (1990, 1994) emphasizes that, although the NLRA gave


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workers the right to strike, the LMRA and its interpretations restricted strikes that seriously challenged workplace authority. When strikes were allowed, the LMRA permitted employers to hire replacements for striking workers. The right to strike became more symbolic than real, and to the extent exercised, it focused on bread and butter issues of wages and working conditions rather than on transforming workplace power relations (see also Rogers 1990). Not fully repressive, the LMRA was a contradictory regime of “integrative prevention,” permitting worker collective organization but limiting labor militancy (McCammon 1993a). In addition to illustrating that a halfempty/half-full assessment of law’s inequalityreducing capacity is appropriate, research on law and the U.S. labor movement shows that concepts and measures of such capacity must be multidimensional. We must care about both short- and long-term material benefits, restructuring power relations, and transforming personal and collective identity (Crenshaw 1988, McCann 1994, Kostiner 2003). Considering this multiplicity of measures, labor law research shows how and why scholars often argue that law’s constitutive power trumps its instrumental power. Similarly, pessimism often trumps optimism in law and society research on law, inequality, and social change (e.g., Sarat 1990, Ewick & Silbey 1998, Edelman & Suchman 1999). Labor law research is not unique for the contradictions it elucidates. Rather, these are replicated elsewhere.

GALANTER AND SCHEINGOLD: LITIGATION, INEQUALITY, AND SOCIAL CHANGE Galanter’s “Why the ‘Haves’ Come Out Ahead” (1974) and Scheingold’s The Politics of Rights (1974) are two of the most influential law and society writings. Commemorating the 25th anniversary of Galanter’s article, the Law & Society Review published an issue reexamining his hypotheses (Grossman et al.

1999). In 2004, Scheingold published a second edition of The Politics of Rights, unchanged but for an updated preface reflecting on legacies of the original work. Where Galanter (1974) focused on inequalities generated within formal-legal institutions, Scheingold (1974) investigated the law-polity interface as it shaped and limited attorneys seeking to promote progressive change through litigation. Distinguishing between “one shot players who have only occasional recourse to the courts . . . and repeat players who are engaged in many similar litigations over time” (p. 97), Galanter (1974) suggested that the two kinds of players typically have different goals in going to court and find it strategic to “play the litigation game” differently. An accused criminal in court on a first offense or a person who files for divorce from a (first) spouse are examples of the paradigmatic one-shot player. State prosecutors, insurance companies, and major corporations dealing with the same specialized matters repeatedly in court are examples of the paradigmatic repeat player. Outlining likely strategies, Galanter (1974) argued that one-shot players typically concern themselves with outcomes of their particular cases, caring about general rules only to the extent that they relate to getting preferred outcomes. Divorcing parents fighting over child custody care about whether or not they get custody, not about general rules of child custody cases. Meanwhile, Galanter (1974) hypothesized that repeat players, e.g., insurance companies litigating to establish liability, can and will pick and choose strategically among cases. Repeat players allocate more resources where more is at stake in terms of financial interest and legal precedent, choosing to settle cases likely to produce unfavorable legal rulings. In civil cases, a one-shot player may prefer to gain certain monetary compensation by accepting a proffered settlement, even though, on balance, she might win more by assuming the time and monetary costs of taking the case to trial. In a criminal case, a www.annualreviews.org • Law, Inequality, and Social Change

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one-shot player may accept a plea bargain to avoid maximum penalties such as death or lifetime incarceration. Repeat players have prior experience and familiarity with courts and judges, resources not available to one-shot players. Repeat players also find it rational to invest in developing expertise, including ready access to specialist attorneys and other experts. For any specific litigation, “repeat players already know a great deal about the relevant legal precedents, increasing their capacity to pursue strategically [those] cases likely to produce maximally favorable legal rules. The upshot is that, other things equal, being a repeat player gives the actor mobilizing the courts more litigation relevant resources. The body of legal precedent produced by litigation between one-shot players and repeat players is likely to be skewed systematically in favor of the repeat players” (Stryker 2006, p. 349). Precedent’s import is not just a taken-for-granted assumption of doctrinal legal scholars. McCammon & Kane (1997) investigated American labor’s post–World War II mobilization of law to prohibit employer unfair labor practices, such as employers’ interference with union elections, running company unions, discriminating against union workers, and refusing to bargain collectively in good faith. Their time series analysis examined when this mobilization of law was more or less successful and found that prior precedentsetting court decisions favoring employers significantly reduced labor’s success in later litigation. Lawyers are a special type of repeat player, so access to lawyers is important for all litigants (Galanter 1974). Large companies that are repeat players typically have in-house counsel as well as enduring relationships with outside firms specializing in litigation, which amplifies their advantage. One-shot players who are represented by specialized attorneys benefit from a more balanced arena. Where fee-for-legal-service markets prevail, retaining lawyers usually is expensive, so that havenots may find themselves without attorneys or


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with lesser-quality counsel (Galanter 1974). Increasing the prevalence of contingencyfee arrangements and pro bono work helps lessen this disadvantage, as do reforms increasing availability of legal services to the poor (Galanter 1974, Lempert & Sanders 1986). Advantages accruing to parties with lawyers are not confined to the United States. In a study of litigation involving 328 Russian companies during the transition to a market economy, Hendley et al. (1999) showed that those companies represented by counsel were more likely to undertake litigation to protect or advance their economic interests, controlling for diverse other factors. Finally, Galanter (1974) also hypothesized that overloaded criminal and civil court dockets increase advantages of the haves because financially well-off civil defendants can use delaying tactics to their advantage, and overstressed public defenders in the criminal justice system lack time to gain detailed knowledge of their clients’ cases. In an informative essay, Paris (2006, p. 1006) credited Scheingold for being “first to develop a systematic argument for the proposition that litigation and court decisions could be used as part of a broader strategy to organize and mobilize political action. Things legal could be a vital part of political processes resulting in a redistribution of political power. In turn, the redistribution of political power could bring about changes in policies and behaviors.” Yet Scheingold (1974) was no unbridled optimist. He wrote a cautionary tale about reform lawyers who, blinded by rights discourse, misread possibilities as a done deal. Addressing his topic from the havenots’ vantage point, Scheingold (1974) asked whether litigation could play a role in changing public policy to the benefit of the disadvantaged. The answer was yes, but only if lawyers were willing to “abandon the conventional legal perspective and replace it with a political approach to law and change” (Scheingold 2004, p. 4). Conventional perspectives, embodying a “myth of rights” were

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ineffective, but a “politics of rights” was promising: Legal frames of reference tunnel the vision of both activists and analysts leading to an


oversimplified approach . . . that grossly exaggerates the role that lawyers and litigation can play in a strategy for change. The assumption is that litigation can evoke a declaration of rights from courts; that it can, further, be used to assure the realization of these rights; and finally, that realization is tantamount to meaningful change. The myth of rights is, in other words, premised on a direct linking of litigation, rights, and remedies with social change (Scheingold 2004, p. 5).

American law disproportionately embodies profound faith in markets, opposition to government regulation, and individualism. Rights claims are limited to those that lawyers envision as at least possibly successful, given such doctrine. Steeped in legalism, reform lawyers tend to view change strategies exclusively in terms of litigation, distrusting political protest and grossly overestimating the political impact of court rulings. Strategies of exclusive litigation have substantial opportunity costs, leaving “change agents . . . dependent on the will, powers, and technical capacities of the courts” (Paris 2006, p. 1005). Victory in court “might provide only symbolic reassurance without changing much of anything on the ground” (Paris 2006, p. 1005). In short, new legal rights do not, in themselves, transform power-asymmetric social relations (Scheingold 1974, cf. McIntrye 1994). At the same time, the glass was not empty for Scheingold (2004, pp. 6–7), as long as “judicially asserted rights” were thought of not “as accomplished social facts or moral imperatives” but rather as “authoritatively articulated goals of public policy [that serve] as political resources of unknown value in the hands of those who want to alter the course of public policy.” Rather than thinking of law as distinct from politics, reform

lawyers should see law as part of a broader political process. Key questions involved the optimal relationship between mobilization in formal-legal institutions and more general political mobilization. Described by Paris (2006, p. 1006), Scheingold’s (1974) bottom line is that success is not guaranteed, but “litigation and court decisions [can] be catalysts for the political organization and mobilization of relatively powerless groups . . . . [L]egal challenges might help activate citizens, cue expectations about the possibility of winning, and help bring new groups and coalitions into being.” If attorneys and movements were savvier about both limits and opportunities, they could mobilize legal institutions to promote real, inequality-reducing social change (Paris 2006). Scheingold (1974) suggested that “traditional activists,” such as ACLU and NAACP lawyers, comprised the greatest portion of the reform-oriented bar and also were the biggest believers in the myth of rights. “Radical activist” lawyers, such as those who defended black liberationists or worked for the National Lawyers Guild, operated on the strongest version of critical ideology, equating law with repression and trying to defend their marginal clients from the worst of it. Figures such as Ralph Nader were potential harbingers of how litigation could be part of reform-producing political activism. The greatest chance of success lay in seeing that “law and politics are inextricably intertwined and in this combination politics is the senior partner” (Scheingold 2004, pp. 203–4). Paris (2006, p. 1007) read Scheingold as “very clearly put[ting] the accent on [law’s] limitations,” but “also argu[ing] that, in many contexts, it could be a fatal mistake to forego the opportunity side of a politics of rights.” In fact, Scheingold (1974) is a key progenitor of the half-empty/half-full image of law’s capacity to mitigate inequality. On the basis of Galanter and Scheingold, we see why formal-legal rule change alone may penetrate society minimally. At the same time, Scheingold argued that strategic litigation within a broader social movement also relying www.annualreviews.org • Law, Inequality, and Social Change

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on political protest could help produce social change.

OPPORTUNITIES AND LIMITS: FURTHER SPECIFICATION AND FINDINGS


Research that examines empirically law’s opportunities and limits is multifaceted. It includes work building directly on Galanter and Scheingold, but also research on law and organizations and on the politics of law enforcement. Exploiting case-oriented comparisons to identify institutional factors likely to increase or decrease courts’ impact, Rosenberg (1991) highlighted that court orders benefiting havenots are not self-enforcing. When court decisions are unpopular, only the state’s political branches have the money and power to send federal troops to enforce them. Only the political branches have money and power to provide financial incentives to recalcitrant noncompliers (Chesler et al. 1988, Sutton 2001). The position of economic elites likewise is central. When such elites are united strongly against making good on a courtenunciated right, political branches more likely will refrain from aggressive enforcement (Rosenberg 1991). Given constraints under which courts operate, landmark court decisions and legislation on education, employment, and voting rights in the 1950s and 1960s represented mostly a hollow hope, because courts alone lack capacity to coerce or inspire others to provide the disadvantaged with real benefits. In research on school desegregation litigation, Chesler et al. (1988) emphasized that judges are trained in legal doctrine rather than in understanding social relations. Professional socialization and training tend judges toward a hands-off approach to implementation, rather than encouraging day-to-day monitoring and social-relational adjustments required to translate court decrees into organizational change. Most judges were disinclined—or even if inclined, ill prepared—to interfere in 78

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crucial day-to-day activities of school boards and parent groups. These difficulties were exacerbated as the legal horizon moved from de jure to de facto segregation. With inequalities in education, employment, income, and wealth entrenched across generations in cycles of cumulative disadvantage, sociologists argue that cumulative disadvantage often is “cumulative discrimination” (Blank et al. 2004) that neither courts nor legislatures are inclined or prepared to confront. Whereas Rosenberg (1991) illuminated courts’ impact under various configurations and degrees of support or opposition by economic and political elites, Handler (1978) found that legal victories for progressive reform might be isolated and dismantled in the absence of an organized social movement sustaining change efforts. McCann (1994) added much to our knowledge by emphasizing a complex relational dynamic among actors from above and below in an evolving politicalinstitutional field.

Law, Politics, and Rights at Work In the early 1980s, gender pay equity was at the forefront of U.S. feminist reformers’ agenda. Examining how law and politics combined in four successive phases of the movement for gender pay equity, McCann (1994, p. 279) found that the “most obvious positive contribution of legal tactics was in the initial movement building phases” when “progressive lawyers” schooled in battles over workplace affirmative action and equal treatment adapted and built on legal victories and discursive resources developed and institutionalized in these battles to devise an argument for “equal pay for work of comparable worth.” Jobs done disproportionately by females tended to pay less than jobs done disproportionately by males, and activists wanted to equalize pay for such jobs, as long as the disproportionately female and disproportionately male jobs could be shown to be of equal worth in terms of such underlying dimensions as skill, effort, responsibility, and working

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conditions (Nelson & Bridges 1999, McCann 1994): From the start, [progressive lawyers] aimed to use litigation to dramatize the wage


discrimination issue and to build an actively supportive constituency among working women and their allies. That endeavor proved quite effective. A handful of successful trial and appellate cases generated hopes and focused attention among many leading feminists and union activists around the country. These leaders in turn used both landmark decisions and local legal challenges as resources for mobilizing grassroots support among workers, feminists and community groups in multiple venues throughout the nation (McCann 1994, p. 279).

Highlighting that actors mobilizing law were activists, not judges, and that their goal was recruiting and energizing movement members and beneficiaries, McCann’s (1994) study demonstrated a key theme of social movement research more generally: that pre-existing organizations and networks matter (Pedriana 2004, 2006). “Activist elites and organizations” could mobilize resources effectively because of prior connections to “potential constituents.” On the basis of these connections, the movement gained “financial and organizational support from allies in government, community groups and the public at large—which sustained defiant action for new rights even as initial judicial support faded” (McCann 1994, p. 280). In the remaining three movement phases identified by McCann, formal-legal institutions made important contributions only in the first, early stages of “maneuvering [by reform activists] to compel formal policy concessions” (McCann 1994, p. 280). Here, “parading lawyers” and threatening and undertaking litigation “provided leverage for negotiations in official policy forums . . . . [L]itigation provided the movement one of its most consistently potent leveraging resources in negotiations for over a decade, even though

the courts were unreliable allies” (McCann 1994, p. 280). Consistent with research on implementing affirmative action, public sector employers were especially vulnerable to this leveraging effect because they were especially vulnerable to bad publicity and to the threat of financial costs and administrative uncertainty (see Stryker 2001 for factors increasing the likelihood that affirmative action plans will be implemented and produce real gains for the disadvantaged). But threat diminished as the courts became more unfriendly and employers learned how to reduce litigation risks and raise fears about possible adverse consequences of reform. In the late 1980s, pay equity activists tried circumventing negative court rulings by amending federal civil rights legislation in ways that could reinstate litigation as a credible threat. They failed, but legislation and collective bargaining at the local and state levels achieved much. Activists almost never achieved pure gender pay equity, but gender wage gaps “were significantly narrowed” (McCann 1994, p. 281). Pay equity reform in Iowa shows how political realities converged to result in pay augmentation for all public sector jobs, especially for jobs done disproportionately by women and shown through job evaluation to be undervalued. Thus, Iowa’s comparable worth legislation significantly increased gender pay equity for Iowa public sector employees, although it would have increased gender equity still more had jobs done predominantly by males and shown to be overvalued been subjected to a pay cut, which was politically unpalatable to the state and to public sector unions (Orazem & Mattila 1989). In an imaginary world in which we need not take into account what is or is not objectively possible, Iowa could have implemented reform in ways that would have been more gender equalizing, while costing less. But given that McCann’s (1994) findings suggest that solidarity and leadership commitment among diverse movement allies increased social gains to pay equity activism, perhaps Iowa’s implementation gauged things about right. www.annualreviews.org • Law, Inequality, and Social Change

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Characterizing the movement’s final phase as its legacy for later struggles, McCann (1994, p. 281) found that “political advances in many contexts matched or exceeded wage gains. One important advance was at the level of rights consciousness, [such that] legal rights . . . became increasingly meaningful both as a general moral discourse and as a strategic discourse for ongoing challenges to status quo power relations.” Although the pay equity movement was contained, it strengthened organizational ties among women workers and allies, spurring other successful battles for workplace reform and thus demonstrating “a variable but broadly significant pattern of political empowerment among many working women” (McCann 1994, p. 292). In sum, McCann’s (1994) work showed that, as long as there are early judicial wins to recruit and galvanize movement beneficiaries and allies, spur resistance, and leverage political negotiations, court decisions need not be so consistent, nor victories as long-term and permanent as might have been thought. Although litigation lacked power to produce social change directly, it had important indirect empowering effects, changing women’s sense of who they were and what was possible, as well as their propensity to engage in further struggle. Knee-jerk responses denigrating economic, political, and cultural reform short of dismantling capitalism itself were unwarranted. Consistent with McCann, much research has shown that rights discourse from below involves active reinterpretation, not passive acceptance of prevailing elite views (Forbath 1991, Tomlins 1993, Pedriana & Stryker 1997). Rights discourse is powerful because it resonates with elites and subordinates alike (Crenshaw 1988, Pedriana & Stryker 1997, McCann 1994, Forbath 1991). Small-scale, issue-based resistance mobilizing rights discourse is not necessarily “a co-opted alternative to transformative politics. Rather [it] often provide[s] rehearsals of opposition that prepare the way for bolder challenges in more propitious moments” (McCann 1994, p. 307).


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At the same time, political and legal mobilization of rights discourse from below shapes rights interpretation by economic and political elites, legal scholars, and judges. Pedriana & Stryker (1997) showed how early proponents of affirmative action converted into opportunity the apparent constraints placed on them by the individualistic, intent-oriented meanings of equal opportunity previously institutionalized into law. They did so by reinterpreting equal opportunity so that achieving it required proactive, group- and resultsoriented measures to compensate for past discrimination against African Americans. Courts enacted transformed meaning into formal law, promoting diffusion of affirmative action offices and policies broadly in the U.S. economy (Pedriana & Stryker 1997, 2004; Stryker 2001; Dobbin & Sutton 1998; Edelman 1992). Likewise, Pedriana (2004) showed how the women’s movement was both recipient and creator of legal opportunity structures. Skrentny (2006) noted that decisions of those in power always play a role in shaping social movements’ impact. Thus, elite perceptions of movements from below, especially those about what defines a potential beneficiary group, its moral deservingness, and the threat it poses, shape the impact of mobilization of rights discourse from below. Although perceived moral worthiness of a disadvantaged group is important, perceived threat can trump ambivalent or negative evaluations of worthiness at least in the short term (Skrentny 2006). McCann’s (1994) work suggests a minimum of three key strands of follow-up research. First, we need research at the intersection of social movements and legal mobilization that examines conditions under which small reforms produce satisfaction and complacency as opposed to those under which small reforms whet appetites and accumulate resources for further mobilization and conflict. As previously discussed, much research focuses on empowering versus limiting aspects of rights discourse (e.g., Hull


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2001; Bernstein 2001; Pedriana 2004, 2006). Zippel’s (2006) recent multi-level politicalinstitutional account of the origin and implementation of policies against sexual harassment in the United States, Germany, and the European Union is especially interesting. Whereas the United States relied on a rightsoriented law enforcement route to defining and combating harassment, Germany relied on a more flexible corporatist path, expecting unions and employers to negotiate sensible policies at the workplace. Zippel (2006) suggested that a combined approach that strengthens rights but also relies on corporatism to help implement rights would empower women most. Beyond examining complexities of rights discourse, we need studies showing which specific conditions are more or less likely to generate combinations of formal law and social movement activism that McCann (1994, pp. 307–8) terms “expansionist” in achieving both short-term benefits and “significant new resources, opportunities and aspirations for continued counter-hegemonic struggle.” At minimum, such expansionist reforms “sustain the momentum for change,” and at maximum, these reforms “snowball into ever more comprehensive demands and conflicts” (McCann 1994, p. 308; see also McCann 1998). Surveying prior literature on the civil rights, women’s rights, and mental health rights movements as well as liberal public interest groups, McCann (1994) suggested that when litigation competes with and diverts energy from grassroots political activity, it tends to be disempowering, consuming rather than producing more material and power resources. Second, although court wins are not sufficient to produce inequality-reducing social change, and consistent, sustained wins may not even be necessary, some wins usually are required to extend movements across multiple locales. Thus, we need research on conditions under which the relatively disadvantaged are more or less likely to win in court. Third, we need research on the politics of implementing legislation that provides

welfare-oriented endowments, that is, rights and benefits to the disadvantaged.

Who Wins in Court and How Do They Do It? Writing about inequalities produced in and by the U.S. court- and litigation-centered legal system, Galanter (1974) was clear that there can be low-status, impoverished repeat players—stereotypical underclass street criminals come to mind—and also wealthy, highstatus, one-shot players—O.J. Simpson was just such a player when tried, then acquitted of his wife’s murder. But Galanter and his interpreters tended to draw implications of the one-shot/repeat player distinction with examples and research confounding it with differences in pre-existing economic and social position (Lempert 1999). Many studies examined relative litigation success of diverse types of litigants. Wheeler et al. (1987) examined win rates on appeal in 16 state supreme courts, 1870–1970. Analyzing both published and unpublished decisions, Songer & Sheehan (1992) investigated whether upperdogs routinely beat underdogs in three federal circuit courts in 1986. Songer et al. (1999) took a random sample of cases from the U.S. Courts of Appeals Data Base, 1925–1988, to examine success rates by time period. They estimated a multivariate logistic regression equation assessing the impact of appellant and respondent strength on the likelihood of success in published decisions, controlling for the court’s ideological makeup and whether or not the appeal involved criminal law or procedures. Sheehan et al. (1992) looked at success rates of diverse party types in the U.S. Supreme Court, 1953–1988. Similar studies have been done for other countries (e.g., McCormick 1993, for Canada; Haynie et al. 1994, for South Africa, India, and the Philippines). All studies save for those on the Supreme Courts of Canada and the Philippines show that haves disproportionately win in court. But research design and coding do not allow us www.annualreviews.org • Law, Inequality, and Social Change

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to attribute this to Galanter’s original hypothesis. Studies typically differentiate between litigants who are individuals or organizations, and among organizations, between those that are businesses or state or federal governments. Studies sometimes distinguish between large and small businesses and among local, state, and federal governments (Songer et al. 1999, p. 815). Paradigmatic resources distinguishing one-shot from repeat players may be driving some of what we observe. But money and power stemming from actors’ positions outside the legal system probably drive much of it, especially because, as studies suggest, government is especially advantaged in litigation (Songer et al. 1999, p. 815; Lempert 1999; Farole 1999). As Lempert (1999, pp. 1103, 1007) put it:


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It is clear from what we know about criminal cases that a pure repeat player effect does not generally exist. At the most, there seems to be an interaction effect, such that those who have power and are repeat players do better than those who are not powerful, whether or not the latter are repeat players. We cannot be sure from the empirical work that there is even an interaction effect because we are missing the crucial comparison between powerful parties who are repeat players and those who are not . . . . [W]e need research that looks at the importance of repeat playing when litigants are equally situated with regard to other attributes of power. [But] most research that seeks to evaluate the importance of repeat playing . . . focuses on litigation between unequals [so] we cannot specify the degree of advantage uniquely associated with actual or contemplated repeat playing.

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into legal outcomes, the better we can specify how to disrupt these mechanisms. Whether government litigation success is attributable to repeat player status, state actor status, or a combination, the consistent relative success of government in litigation suggests that aggressive state enforcement of welfare-oriented legislation will help maximize law’s capacity to produce equality-enhancing social change. Bridging general studies of court outcomes and of enforcement politics are studies examining who wins when enforcement of legislation benefiting the disadvantaged proceeds through litigation. Scholars emphasize difficulties facing individuals who are victims of discrimination when they—rather than government enforcers—must vindicate their rights (Bumiller 1988, Edelman 1992, Albiston 1999). Discrimination victims may not perceive that their rights have been violated, and if they do, they may fear retaliation, lack financial resources or social validation and support, or for myriad other reasons fail to invoke law (Edelman & Stryker 2005). One recent study found that less than 1% of blacks who felt they had experienced discrimination filed a complaint with the Equal Employment Opportunity Commission (EEOC) (Nielson & Nelson 2005, p. 704). Much research shows that collective mobilization strategies for litigation produce more positive outcomes than does litigation by individuals. Burstein (1989) analyzed the content of 675 published appellate sex discrimination cases between 1963 and 1985, decided under Title VII of the Civil Rights Act of 1964 or the Equal Pay Act of 1963. Counting all plaintiff wins, including those that did not represent final outcomes as well as those that did, and those in which women got all or part of what they sought, Burstein (1989) found that women won over half the appeals. About 17% of the cases involved government as a party, and 42% of them were class actions, aggregating similarly situated aggrieved plaintiffs into one suit. Class action plaintiffs were 15% more likely to win than plaintiffs who sued as individuals, and plaintiffs also were more


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likely to win when the federal government was involved as a party or by contributing an amicus brief. With respect to direct social impact, Burstein (1989) found that only 27% of appeals resulted in final decisions with awards favoring plaintiffs. Two-thirds of these required monetary compensation alone. The remaining one-third required some change in organizational practice, most in conjunction with requiring financial compensation. Investigating final outcomes in all equal employment appellate litigation between 1963 and 1985, Burstein (1991a) found a substantial, statistically significant, positive effect on employeeplaintiffs’ chances of winning when government was a party in the case. He also found that class actions were significantly and positively associated with plaintiff victory. The most common form of collective action in litigation was the class action, with government as a party a distant second, and federal government or other organizations writing amicus briefs an even more distant third. In short, collective mobilization of legal, financial, and technical resources for litigation matters. What then of counter-movements to progressive reform that also mobilize the courts? Investigating court decisions in reverse discrimination employment cases between 1965 and 1985, Burstein (1991b) found that there were few reverse discrimination suits, reverse discrimination plaintiffs typically were not collectively organized, and they usually lost. But just like other equal employment plaintiffs, reverse discrimination plaintiffs did better when collectively organized than when not. McCammon (2001) conducted time series regressions for 1948–1978 and found that as union representation elections increased, so did labor’s filing of unfair labor practice charges. Investigating when labor’s post– World War II legal mobilization was more or less successful, McCammon & Kane (1997) found that the more unfair labor practice charges filed against employers, the more likely it was that courts ruled in favor of workers. But this effect weakened when employer

associations also were mobilized. Although heightened strike levels did not affect court rulings, prior precedent-setting judicial decisions favoring employers significantly reduced labor’s successes in later cases. In contrast to doctrinal legal scholars’ presumption that law’s path dependence on legal precedent is oblivious to the identity of litigating parties, cases offering prolabor precedent did not significantly influence later judges’ decisions. McCammon & Kane (1997) suggest that perhaps judges disproportionately use precedent in labor law cases to rule against workers and unions, while tending to rely on individual fact situations when they rule in favor of workers and unions. This hypothesis should be tested directly for labor law and welfare-oriented law more generally. If judicial rulings are systematically unequal in resource value as precedents for later cases depending on the winner’s wealth, status, and power outside the legal system, this is another route by which haves come out ahead in court and proequality reforms can be blunted. Albiston (1999) studied the first five years of published judicial opinions enforcing the Family Medical Leave Act (FMLA), requiring employers to give up to 12 weeks of unpaid leave to care for newborns or seriously ill family members. Employees can seek redress in court if they perceive they have been illegally deprived of this employment benefit or have been subject to demotion, termination, etc., because they used the benefit. Albiston highlights how the procedural posture of the sequence of judicial decision points in civil litigation gives employer-defendants more opportunity to prevail on published final outcomes, independent of any other explanatory factor. The vast majority of published opinions interpreting the FMLA in its early years involved motions for summary judgment and motions to dismiss. Success on these by the moving party ends the case. Because employers alone can file motions to dismiss, they have strategic control of this decision point. Employers who filed motions to dismiss www.annualreviews.org • Law, Inequality, and Social Change

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won twice as many of these as did employees (Albiston 1999). Both parties can file motions for summary judgment in their favor, and when both did so, employers won only half the time. Employees won the rest of these cases, but only in a little more than 25% did they win on their own motion, thus constituting a final decision. The rest of the time they won by defeating the employer’s summary judgment motion, permitting the case to proceed to trial. There were many more cases in which only the employer moved for summary judgment than cases that required courts to address cross motions. Overall, by far the largest group of published opinions was judicial grants of employer motions for summary judgment (Albiston 1999). Given her findings, Albiston (1999) argued that plaintiffs and defendants do not have the same opportunities to win lawsuits through published court rulings that serve as legal precedent. Numbers of published bench trial and appellate decisions increase with the life of legislation. But the percentage of such cases relative to those stemming from summary judgment and motions to dismiss is likely to remain small (Albiston 1999). On the one hand, then, studies of published opinions will substantially understate tangible benefits that employees receive when they win through unpublished settlements or jury trials, or by leveraging law in negotiating benefits with employers, or when employers comply voluntarily with law (see also Donohue & Siegelman 1991). On the other hand, the paradox of these kinds of wins is that they are legally invisible and so cannot promote positive feedbacks in an endogenous system of communicated, authoritative rules. What is visible to employers and employees—and to the general public through media reports on published cases—is likely to dampen later rights mobilization by employees. Likewise, sustained negative rulings can convince the public that the problem the right was enacted to solve no longer exists. Over time, the moral force the right communicated erodes, and its impact is blunted (Albiston 1999, pp. 902–5).


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Albiston (1999) sets up a plausible, deeply pessimistic scenario that must be examined empirically. Involving a complex dynamic with intermediate mechanisms and feedbacks, multiple causal factors, and a series of selection points, the scenario presents challenges for operationalization. But research examining hypothesized causal relationships forming subsets of the total argument can be designed readily and should be done. Those mathematically inclined could model and simulate the scenario as a whole, to locate the most strategic points for interventionist reform.

Politics of Enforcement Research on the politics of enforcing welfareoriented legislation highlights additional leverage points shaping variable impact (see Stryker 2000a, Huber & Stephens 2005 for general reviews of the comparative politics of redistributive and regulatory law). Whether enforcement occurs through adjudicative or administrative rulemaking by government agencies and/or courts, institutionalized understandings of property rights, legal liability based on pinpointing individual responsibility, and a more general culture of faith in markets predispose enforcers away from aggressive enforcement of welfareoriented legislation (Nelson & Bridges 1999, Yeager 1990). Corporate organizational forms themselves encourage leniency and negotiated compliance (Stone 1975, Yeager 1990). Organizational haves find that market defenses to liability and arguments that stringent enforcement interferes with economic viability are potent resources for blunting social impact (Melnick 1983, Yeager 1990, Nelson & Bridges 1999). Similar to McCann (1994), Nelson & Bridges (1999) found that politics—in their case politics within the large public and private sector organizations they studied seeking causes of gender pay inequalities in litigated cases—matters in shaping impact. In contrast, the overall picture Nelson & Bridges (1999) painted, in which federal courts quickly closed the window of legal


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opportunity opened by the 1981 Supreme Court decision in the Gunther case, shows how the courts legalized between-job gender pay inequalities by accepting and institutionalizing market defenses for inequalities produced through organizational processes that did not and could not follow market logic. Limited social impact also results from agency procedures tilted in favor of large organizations with greater technical and financial resources. Melnick (1983) showed how narrow adversarial enforcement for U.S. pollution control led courts to extend the scope of Environmental Protection Agency (EPA) programs, while also lessening EPA resources to achieve program goals. Yeager (1990) showed that formally neutral EPA sanctioning decisions reproduced private sector inequality— and with it the water pollution generated disproportionately by big business—by favoring large firms over small in enforcement. Using regression to highlight both direct and indirect mechanisms of advantage, Yeager (1990) found that, because large firms were financially and technically advantaged relative to small firms, they were better able to mobilize EPA administrative hearings to negotiate and appeal charges. Firm economic strength was negatively related to the number and severity of sanctions because large firms were more likely to invoke administrative hearings, and invoking a hearing then reduced the likelihood of violations and/or of sanctions for law violation. A counterpoint comes from Harris’s (1999) demonstration that when interests of havenots are represented throughout administrative processes implementing court decrees in favor of the disadvantaged, more is achieved in terms of real benefits. Comparing conditions for more and less successful implementation of court decrees stemming from three major “right to home” class action lawsuits, Harris (1999) identified strategic trade offs and a conjunction of factors most likely to maximize benefits for the disadvantaged. Showing how and why poverty lawyers were critical to developing and defending “new redistribu-

tive programs for the ‘have-nots,’” Harris emphasized the positive causal import of judicial oversight, combined with an appropriate strategy of organizational politics pursued by poverty lawyers themselves within implementation. Where prior research showed how agency bureaucracy could impede implementation of redistributive court decisions challenging agency goals, Harris’s research (1999, p. 933) echoes Heimer’s (1996) suggestion that previously existing organizational routines are more likely to be modified when “legal actors who are empowered to enforce the new reforms are present.” Because judicial oversight allowed previously outsider poverty lawyers to become insiders to state implementation, judicial oversight was a necessary, albeit not sufficient condition for maximizing “on the ground” housing and other antipoverty benefits to have-nots. To ensure success, poverty lawyers negotiating implementation with agency officials had to “mobilize intra-agency support for reform by convincing the administrative leadership that the new programs would enhance the reputation of the agency within its political environment and provide the staff with adequate resources to carry out their responsibilities” (Harris 1999, p. 934; see also Skrentny 1996, Pedriana & Stryker 2004). Finally, although “even well functioning program(s) could be vulnerable to funding cuts . . . in political environments in which the legislative leadership was retreating from previous commitments to maintaining a safety net for poor people,” when “a diverse set of constituencies” (including some economic haves) “were mobilized on behalf of the program during implementation,” then “the program was more likely to be able to withstand political pressures for elimination,” even when very costly (Harris 1999, p. 934). Harris (1999) also cautioned that, to maximize gains for the disadvantaged, reform lawyers must work to mobilize support for reform and influence program rules during implementation, but they should not assume administrative roles. Doing the latter made www.annualreviews.org • Law, Inequality, and Social Change

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them “program constituents with their own set of interests as rule enforcers . . . and threatened the legitimacy of the Legal Aid Society among its own staff ” (Harris 1999, p. 934). With much litigation settled outside judicial purview, the role played by judicial oversight in providing Harris’s (1999) poverty lawyers with essential symbolic resources for negotiating implementation has potentially far-reaching import. In the early stages of design and data collection, a study of antidiscrimination consent decrees undertaken by the Institute for Women’s Policy Research and The Wage Project follows up on the import of judicial oversight, given court antidiscrimination consent decrees of variable content, duration, and provisions for monitoring. Supportive constituencies are needed for state enforcement of legislative law benefiting the disadvantaged just as they are for public and private organizations responding to welfare-oriented judicial mandates. Sabatier (1975) showed how environmental agencies lacking social movement constituencies pressuring them toward aggressive enforcement could work proactively to create them, increasing technical and monitoring capacity, as well as communication and helpful publicity. This in turn dramatically reduced the likelihood of the agency being captured by the powerful economic interests it regulated. Examining how an initially weak EEOC expanded its capacity to enforce Title VII of the 1964 Civil Rights Act, Pedriana & Stryker (2004) signaled the import of overt, sustained movement pressure from below to maximize benefits to the disadvantaged. Both Title VII on the books and the newly established EEOC were weak, but in 1965– 1971, civil rights advocacy groups pressured the EEOC relentlessly and combined forces with EEOC staff to convert weakness into strength. They accomplished this by coupling victories in procedural battles expanding real access to the courts with winning an uphill battle for a substantive effects-oriented Supreme Court interpretation of Title VII (Pedriana & Stryker 2004). The authors


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empirically supported a causal chain in which sustained social movement pressure from below increases the likelihood that legislative law designed to benefit the disadvantaged is given a broad, effects-oriented interpretation that, in turn, maximizes state capacity to provide benefits. As Pedriana & Stryker (2004) showed, substantive effects-oriented methods of establishing liability for discrimination were possible but not favored by extant doctrine. Recessive possibilities had to be actively constructed when most incentives, including the threat of adverse decisions in the federal courts, worked in the opposite direction. Despite all this, social movement pressure promoted EEOC adoption of an effects-oriented method of proving discrimination (disparate impact). EEOC adoption of this method facilitated the Supreme Court’s endorsement of disparate impact in the 1971 Griggs case, reversing contrary decisions in the lower federal courts. Pedriana & Stryker (2004) examined expansion of state capacity in equal employment law, not the law’s social impact. But Donohue & Heckman’s (1991) careful review of equal employment law’s impact on black-white inequalities found that federal antidiscrimination efforts in employment, in conjunction with those in voting rights and education, improved blacks’ economic status in 1965–1975, approximately the same period as that for which Pedriana & Stryker (2004) suggested that expansionist legal interpretations increased state capacity to reduce inequality. Social impact diminished in later periods, coincident with legal retrenchment (Stryker 2001, Pedriana 2004). In sum, research findings are consistent with Lempert & Sanders (1986) in highlighting the import of substantive orientations to adjudicative enforcement of legislation that itself is welfare-oriented. In employment discrimination litigation, proving that an employer has discriminatory motive or intent often is difficult. Disparate impact liability does not require this, instead requiring


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plaintiffs to show that business practices have disproportionate negative impact on minority group members and are not required by business necessity. Although plaintiffs’ proof of adverse effects does not automatically resolve the case in their favor, it does shift proof burdens to make it harder for employers ultimately to prevail (Stryker 2001). Burstein & Pitchford (1990) found that employees succeeded in proving disparate impact in 17 of 21 education cases and 54 of 66 testing cases in 1971–1985. Relative to win rates for equal employment cases more generally, employees fared especially well and employers fared especially poorly in education and testing cases. (The last figures are given for disparate impact and treatment education and testing cases combined, but most of these claimed disparate impact.) Focusing on indirect as well as direct effects, substantial evidence from diverse enforcement arenas supports claims that substantive, relative to formal, and effects-oriented, relative to intent-oriented, interpretations of welfare-oriented legislation are more likely to reduce inequality (Lempert & Sanders 1986, Chesler et al. 1988, Stryker 2001, Sutton 2001, Pedriana & Stryker 2004). In totality, the research suggests that, when substantive effects-oriented methods of proving liability are coupled with substantive effects-oriented remedies (such as affirmative action interpreted not just to permit, but to require workplace results benefiting minorities and women), then inequality reduction will reach its maximum. It will do so through a combination of direct and indirect effects, including media coverage in more general venues and the business press, perceived litigation threat, and associated voluntary and pre-emptive compliance (Donohue & Heckman 1991, Stryker 2001, Pedriana & Stryker 2004). These mechanisms can work even if the total number of effects-oriented litigations among published opinions is small (Stryker 2001). According to Stryker (2001, p. 30), the middle course that courts steered in formal versus substantive interpretations

of liability and remedy in equal employment law, combined with typical employer compliance strategies, gave rise to positive effects on labor market outcomes “sufficient to attribute effectiveness to EEO law, but . . . too modest to warrant any inference of pervasive preferential treatment.” Noting how courts in the late 1970s and 1980s retreated from effects-oriented Title VII jurisprudence, Pedriana & Stryker (2004) suggested that state legal capacity to promote equality reduction is a moving target, expanding and contracting over time. This is so at least in part because the breadth, intensity, and content of social movement pressures from below and counter-pressures from above vary over time (Sabatier 1975, Stryker 1989, Pedriana & Stryker 2004). Many enforcement studies of welfareoriented legislation show a political dynamic in which, over time, mobilization from below begets counter-mobilization from above. Often, counter-mobilization from above succeeds in retrenching enforcement (and sometimes legislation itself) in ways that blunt its social impact—with both the level of retrenchment and its timing and duration relative to the next potentially expansionist cycle dependent on multiple factors outside formallegal institutions (Stryker 1989, Yeager 1990; see reviews in Stryker 2000a, Edelman & Stryker 2005 for further specification). Because effects-oriented enforcement is so important, it is likewise important that enforcers have high-quality social science expertise. As Stryker (1989) showed, when the politics of retrenchment permanently deprived the National Labor Relations Board from employing economic analysts, government capacity to empower labor was likewise diminished. Indeed, because quality scientific and technical expertise is essential for devising sensible and effective effects-oriented perspectives on liability and remedy (Chesler et al. 1988; Stryker 1989, 1994), law and social science research on law, inequality, and social change is itself a resource shaping social impact. www.annualreviews.org • Law, Inequality, and Social Change

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Orientation to effects in litigation also leads us back to class actions. Large class action lawsuits against leading companies (such as the sex discrimination class actions underway against Wal-Mart and Costco) create large financial threats for employers while also raising risks of widespread adverse publicity. Class actions increase chances of winning in court, with resulting settlements or judicial rulings affecting many people (Burstein 1991a). Communicating successes in such landmark cases should promote egalitarian change through positive feedbacks (cf. Albiston 1999). Class actions winning effects-oriented remedies should be especially effective. Overall, maximizing real world inequality reduction through law requires combining a number of factors or conditions. Law interpretation and enforcement must be subject to sustained social movement pressure from below through a combination of litigation and mass political mobilization. Such pressure from below must be accompanied by political entrepreneurship among law enforcers within the state and/or by the participation of technically savvy and ideologically committed representatives of the have-nots in law implementation efforts. And such within-the-state and within implementation entrepreneurship must be mobilized for effects-oriented interpretation and enforcement of welfareoriented legislation.


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Organizational Legalization and Mediation Although Harris (1999) studied implementation of court decisions by government agencies, her study has implications for compliance undertaken by organizations, both public and private, in response to welfare-oriented legislation and administrative and adjudicative rules interpreting that legislation. This area has received substantial attention, with much work exploring the processes and import of legalization of the workplace (e.g., Dobbin et al. 1993; Sutton et al. 1994; Dobbin & Sutton 88

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1998; Edelman 1992; Edelman et al. 1999, 2001; Kelly & Dobbin 1999). Inspired by Selznick (1969), Sutton et al. (1994) used longitudinal data on almost 300 American employers, 1955–1985, to detail patterns of adoption of disciplinary hearings and grievance procedures for nonunion hourly and salaried employees. Such due process governance procedures diffused widely in the U.S. workplace, with rates of adoption that increased with expanded political and legal pressures of the 1970s (see also Edelman 1990, Dobbin et al. 1993). Similarly, Dobbin & Sutton (1998) suggested that the formalized business procedures and policies they documented as transforming the U.S. workplace were the “institutionalized embodiment of broader conceptions of legality diffusing through the economy as an interpretive response to change in occupational safety and health and pension legislation as well as to change in equal employment law” (Stryker 2003, p. 356). On the basis of data from a nationwide survey of 346 organizations, Edelman (1992) found that cumulative risk of creating equal employment opportunity–affirmative action offices and policies increased over time. By 1989, sixsevenths of the organizations had created affirmative action policies, so that firms without them risked being seen by government regulators and their peers as lacking commitment to a new economic, as well as legal, norm. Some scholars emphasize that workplace legalization restrains elites from exercising arbitrary workplace power, enhancing democratic egalitarianism. But others emphasize how such legalization may blunt egalitarian social impact. Edelman & Suchman (1999, p. 976) argued that “organizations acting as private legal systems gain increased control over the construction, implementation and impact of law, not only within their own boundaries but also throughout their organizational fields . . . . [This] truly cements organizational power, both to regulate social behavior and to constitute social reality.”


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Indeed, Edelman (1992) and her colleagues (Edelman et al. 1999, 2001) proposed a managerialist perspective, in which managerial elites, who decide what laws mean when taking steps to comply, interpret ambiguous antidiscrimination laws. Engaged in a normative organizational mediation process, human resource professionals and managers interpret welfare-oriented law in ways consistent with what they already see as good business practice (Edelman 1992, p. 1531). Title VII and Executive Order 11246, mandating affirmative action for government contractors, become subsumed into managerial logics highlighting how due process governance and formalized rules improve productivity and smooth business operations. Operationalizing this logic, managers create formal structures, including affirmative action offices and policies, providing “visible symbols of compliance” to employees and government regulators (Edelman 1992, p. 1531; see also Edelman et al. 1999, Sutton et al. 1994.) Doubtful that such symbols translate into major social impact, Edelman et al. (1999) argued that “as symbolic compliance strategies diffuse broadly, courts will adopt ideas of compliance institutionalized in the economy without inquiring deeply into whether or not these compliance strategies are effective. Formal law itself will become . . . endogenous to economic practice in ways that undercut tough enforcement and lessen the law’s impact” (Stryker 2006, p. 348). Edelman et al.’s (2006, p. 1006) preliminary findings from quantitative content analysis of 1024 federal civil rights cases, 1965–1999, supported this hypothesis. Carefully ensuring reliability of coding documenting court reference to a panoply of due process governance structures, other structures and policies expressing symbolic commitment to compliance, Edelman et al. (2006) examined how often judicial opinions consider these structures and policies relevant to finding discrimination or nondiscrimination. Likewise, they examined how often judges formalistically defer to the presence of a structure they deem relevant versus en-

gaging in more substantive review of whether the structure is adequate. They found that the incidence of perceived relevance of business structures emphasized by workplace legalization studies was relatively high during the whole period. The incidence of deference to these structures by district and circuit courts increased gradually over time. Because deference appeared in district courts—whose job it is as trial courts to find facts—a decade earlier than in the courts of appeal, the authors argued that “it is in the lower courts—where employers’ arguments about the facts of the case are given the most play—where judges are most likely to accept the symbolism of structures as compliance, without scrutinizing the adequacy of those structures” (Edelman et al. 2006, p. 24). Deference processes outlined by Edelman et al. (2006) provide a powerful route through which elites shape the meaning of employment discrimination law in ways that condition its impact. Analogous studies of organizational mediation and endogeneity of law should be designed and conducted for court enforcement of other types of legislation to benefit the disadvantaged. Given the import of organizational mediation, it is imperative to know whether and which organizational structures and policies adopted to pursue or demonstrate compliance do in fact reduce inequality. Ongoing research addresses these questions for key white-minority and malefemale workplace inequalities by combining annual EEOC data on workplace demographics with a survey of more than 800 private firms covered by the EEOC data (Kalev et al. 2006). The survey gathered further information on employer practices and experiences with Title VII lawsuits and Executive Branch affirmative action compliance reviews. Examining the impact of seven organizational affirmative action and diversity strategies on the percentage of top managers who were women and minorities, Kalev et al. (2006) suggested that these strategies fit into three broad approaches: establishing organizational responsibility, lessening managers’ www.annualreviews.org • Law, Inequality, and Social Change

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bias through training and evaluation, and counteracting social isolation through mentoring and networking. Using fixed effect time series analyses for 708 firms, 1971–2002, and controlling for other relevant explanatory factors, the authors found that affirmative action plans, diversity committees and task forces, and diversity managers and departments—all strategies for enhancing organizational responsibility and accountability—were most effective in increasing the proportion of white women, black men, and black women in the private sector. Diversity training and diversity evaluations were ineffective or counter-productive. Networking and mentoring showed very small positive effects. Some of the other programs did become a bit more effective for one or another group when combined with programs assigning organizational responsibility for change. Some strategies were more effective for federal contractors because these employers, subject to Executive Order affirmative action requirements, “typically assign responsibility for compliance to a manager” (Kalev et al. 2006, p. 589). Using the same data set and time period, Kalev & Dobbin (2006) examined the independent impact of lawsuits and federal government administrative compliance reviews on change in the proportion of white and black men and women in top management. By creating incentives not to discriminate, lawsuits increased managerial diversity, but compliance reviews had “stronger and more lasting effects” (Kalev & Dobbin 2006, p. 855). Moreover, lawsuits required repetition for continued efficacy, whereas initial compliance reviews had sustained effects, suggesting to the authors that government interventions promoting change in organizational routines have the most lasting and substantial impact on workforce diversity. Emphasizing that civil rights enforcement has not been “merely symbolic,” Kalev & Dobbin (2006, p. 892) nonetheless pointed out that the social impact of lawsuits is not always what we might anticipate. White women benefited more than blacks from lawsuits, and black men and


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women benefited only from repeated lawsuits. Finally, consistent with the Reagan administration’s deregulatory approach, the efficacy of 1980s compliance reviews was substantially less than the efficacy of the more aggressive reviews of the 1970s. These findings suggest trade offs such that, as long as administrative approaches fix responsibility for and monitor organizational routines, they will be more effective than court enforcement. However, administrative approaches are vulnerable to political pressures that can blunt their impact in a direct, immediate way, whereas court enforcement is not (see also Sutton 2001). In sum, to increase their social impact, courts too should focus on remedies that fix responsibility for and monitor changing organizational routines and their impact. Courts can and should monitor change in organizational routines for their adequacy. However, especially given research suggesting that courts do not do such monitoring (Edelman et al. 2006), scholars must know which changes in organizational structure and routine are more or less effective. Law and social scientists then can promote more effective changes at the organizational level, where multiple contending expert groups seek to persuade management of the utility of diverse compliance strategies (Dobbin & Kelly 2007, Stryker 2000b). Research by Kalev et al. (2006) is a promising step in this direction. Also promising is Sturm’s (2001) caseintensive exploratory research, in which she used data on three major companies to identify strategies increasing organizations’ institutional capacity for finding and preventing, as well as remedying, discrimination. Whereas more small-N, case-oriented comparative studies are needed to examine complex conjunctures of factors enhancing or diminishing inequality-reducing social impact, more large-N, hypothesis-testing research is needed to increase confidence that we have identified what works relative to what does not. Complementing our expanding knowledge base is another promising development: An increased number of venues


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now exist in which reform lawyers and social scientists can pool information and expertise regarding which organizational changes— and which combination of political, legal, and institutional strategies—work to reduce inequality (see, e.g., websites of the Center for Work-Life Law, founded by Joan Williams, at http://www.uchastings.edu/?pid=3624; The Impact Fund, founded by Brad Seligman, at http://www.impactfund.org; and the Institute for Women’s Policy Research, President Heidi Hartmann, at http://www. iwpr.org).

CONCLUSION Paradigmatically illustrated by research findings on labor law and rights discourse, half empty/half full is an appropriate approximate image of law’s capacity to reduce inequality in democratic capitalism. However, if democratic capitalism is the glass, and we broaden our gaze to the full range of situations encompassed by Lempert & Sanders’s (1986) typology, we would find the glass more than half empty. Conversely, confining our gaze to welfare-oriented legislation, we can progressively add additional conditions until research findings on factors shaping impact justify viewing the glass as more than half full. Whether one tends toward optimism or pessimism, however, perhaps a more appropriate image comes from thinking about the shape of the glass itself. Given accumulated reforms, and notwithstanding inevitable retrenchments, advanced, monopoly, or welfare capitalism is a different glass than competitive capitalism. Both are asymmetric glasses, tilted toward haves. But depending on the dimension of inequality and the time frame and locale or institutional level we choose, inequality may be increasing or decreasing for reasons that may or may not involve law. As for law’s impact on social inequality, research identifies multiple leverage points and feedbacks shaping direct and indirect effects of litigation and legislation across

multiple measures of impact, including concrete material benefits, power relations, and the transformation of individual and collective identities. Understanding how and under what conditions law undermines, reinforces, or extends social inequality requires examining multiple change mechanisms, from cost-benefit calculi in response to legal incentive structures, to cultural meaning making and institutional diffusion, to political mobilization and counter-mobilization. The greatest inequality reduction likely comes from substantive effects-oriented interpretation of welfare-oriented legislation, including both effects-oriented strategies of liability and effects-oriented remedies. But research also suggests that both achieving these and converting them into maximal social impact requires combining litigation with sustained political mobilization from below, both in society at large and in the public and private agencies and organizations that mediate between formal law and its social impact. Internalizing legal and political pressures from below into day-to-day organizational life can help thwart the dark side of legalization and endogeneity, ensuring that victories won in legislatures and courts through political mobilization from below in the broader societal arena are not confined to symbols alone. Ensuring that have-nots are represented in on-the-ground implementation and monitoring of welfare-oriented legislative and court mandates, whether implementation requires further policy design by government agencies or by business organizations or both, helps ensure benefits to the disadvantaged. Mobilizing communication networks, media coverage, and sustained publicity helps convert shortterm wins for have-nots, whether in court or within organizations, into longer-term improvements in have-nots’ material well being and power. Meanwhile, collective mobilization of have-nots for litigation, through government enforcement and class actions, helps the disadvantaged win in court. Given the importance of class actions and of legal services to www.annualreviews.org • Law, Inequality, and Social Change

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the poor, it is telling that these have been retrenching rather than expanding. Procedural rules pertaining to other legal incentives, including assessment of attorneys’ fees to diverse parties, jury versus bench trials, damage caps, and availability of punitive and compensatory damages, likewise are variable and changing across arenas. Their impact must be researched. Law and social scientists are beginning to identify what organizational policies, structures, and practices work best to decrease workplace inequalities. This research must be expanded. Actively publicizing research among lawyers and human resource and other professionals who shape organizations’ compliance can help spur more, rather than less, effective change in organizational routines, especially if this is complemented by strategies that promote within-organization influence of have-nots. At minimum, this converts the exercise of covert power into overt organizational and institutional politics.


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Finally, strategic opportunities for social movements from below to ally with segments of elites in the broader political arena and within public and private organizations designing and implementing compliance can be developed and exploited. That buy-in for inequality-reducing change is needed from at least some members of advantaged classes and groups typically will limit the types and extent of change. But there is substantial room to maneuver, especially because research shows that movements from below often can convert apparent constraints into opportunities. As well, inequality reductions that seem relatively small in the aggregate often are very large and meaningful from the vantage point of daily life. By definition, the disadvantaged and their advocates are not number one in democratic capitalism. Thus, they must try actively and try harder to ensure inequality reduction through law. Research suggests that the effort is well worth it.


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Sklar M. 1988. The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, The Law and Politics. Cambridge, UK: Cambridge Univ. Press Skocpol T. 1980. Political response to capitalist crisis: neo-Marxist theories of the state and the case of the New Deal. Polit. Soc. 10:155–201 Skrentny JD. 1996. The Ironies of Affirmative Action: Politics, Culture and Justice in America. Chicago: Univ. Chicago Press Skrentny JD. 2006. Policy elite perceptions and social movement success: understanding variations in group inclusion in affirmative action. Am. J. Sociol. 111:1762–815 Songer DR, Sheehan RS. 1992. Who wins on appeal? Upperdogs and underdogs in the United States Courts of Appeals. Am. J. Polit. Sci. 36:235–38 Songer DR, Sheehan RS, Haire SB. 1999. Do the “haves” come out ahead over time? Applying Galanter’s framework to decisions of the U.S. Courts of Appeals, 1925–1988. Law Soc. Rev. 33:811–32 Steinberg MW. 2003. Capitalist development, the labor process and the law. Am. J. Sociol. 109:445–95 Stone A. 1985. The place of law in the Marxian structure-superstructure archetype. Law Soc. Rev. 19:39–67 Stone C. 1975. Where the Law Ends: The Social Control of Corporate Behavior. New York: Harper & Row Stryker R. 1989. Limits on technocratization of the law: the elimination of the National Labor Relations Board’s Division of Economic Research. 1935–40. Am. Sociol. Rev. 54:341–58 Stryker R. 1994. Rules, resources and legitimacy processes: some implications for order, conflict and change. Am. J. Sociol. 99:847–910 Stryker R. 2000a. Government regulation. In Encyclopedia of Sociology, ed. EF Borgatta, RJV Montgomery, 2:1089–111. New York: Macmillan. 2nd ed. Stryker R. 2000b. Legitimacy processes as institutional politics: implications for theory and research in the sociology of organizations. Res. Sociol. Organ. 17:179–223 Stryker R. 2001. Disparate impact and the quota debates: law, labor market sociology and equal employment policies. Sociol. Q. 42:13–46 Stryker R. 2003. Mind the gap: law, institutional analysis and socio-economics. Socio- Econ. Rev. 1:335–67 Stryker R. 2006. Sociology of law. In 21st Century Sociology Reference Handbook, ed. CD Bryant, DL Peck, pp. 339–52, 662–66. Thousand Oaks, CA: Sage Sturm S. 2001. Second generation employment discrimination: a structural approach. Columbia Law Rev. 101:458–568 Sutton JR. 2001. Law/Society: Origins, Interactions, and Change. Thousand Oaks, CA: Pine Forge Sutton JR, Dobbin F, Meyer JW, Scott WR. 1994. Legalization of the workplace. Am. J. Sociol. 99:944–71 Tomlins C. 1985. The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America 1880–1960. Cambridge, UK: Cambridge Univ. Press Tomlins C. 1993. Law, Labor and Ideology in the Early American Republic. Cambridge, UK: Cambridge Univ. Press Traxler F, Blaschke S, Kittel B. 2001. A Comparative Study of Institutions, Change and Performance. Oxford: Oxford Univ. Press Trevino AJ. 1996. The Sociology of Law: Classical and Contemporary Perspectives. New York: St. Martin’s Yeager PC. 1990. The Limits of Law: The Public Regulation of Private Pollution. Cambridge, UK: Cambridge Univ. Press


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Weber M. 1978. Economy and Society: An Outline of Interpretive Sociology, ed. G Roth, C Wittich, transl. E Fischoff. Berkeley/Los Angeles: Univ. Calif. Press Wheeler S, Cartwright B, Kagan R, Freidman L. 1987. Do the “haves” come out ahead? Winning and losing in state supreme courts, 1870–1970. Law Soc. Rev. 21:403–45 Zippel K. 2006. The Politics of Sexual Harassment: A Comparative Study of the US, European Union and Germany. Cambridge, UK: Cambridge Univ. Press

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The Rule of Law Annu. Rev. Law. Soc. Sci. 2007.3:99-114. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/07/07. For personal use only.

John K.M. Ohnesorge University of Wisconsin Law School, Madison, Wisconsin 53706; email: [email protected]


Key Words


jurisprudence, law and development, comparative law, judicialization, East Asia


Abstract Rule of Law rhetoric is increasingly common, both in U.S. legal literature and in the realm of international governance. In the field of law and economic development, the Rule of Law revival is lead by the international financial institutions (IFIs). Rule of Law discourse has also come to play an important role in the fields of comparative politics and comparative law, particularly with respect to East Asia. This review begins with a discussion of Rule of Law rhetoric in the AngloAmerican tradition. It then discusses the international Rule of Law renaissance, focusing on the roles that Rule of Law rhetoric plays in the development activities of the IFIs. Because the claim is that the Rule of Law is key to economic development, this review explores the extent to which Northeast Asia’s outstanding economic development conformed to the Rule of Law. An exploration follows of how the Rule of Law–economic development literature has evolved over time, in line with changing ideas about economics and about development itself. Finally, this review explores how Rule of Law is used in the literatures of comparative politics and comparative law.

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INTRODUCTION1


In 1989, one of America’s premier scholars of constitutional law could write, “the Rule of Law . . . has precious few sophisticated defenders these days” (Tribe 1989). But Professor Tribe’s pronouncement did not dissuade American legal scholars and philosophers from undertaking a broad resurrection of the Rule of Law in American legal discourse during the 1990s, putting the term to use in a range of jurisprudential and governance debates (Cass 2001, Fallon 1997, Frank 2007, Komesar 2001, Maravall & Przeworski 2003, Radin 1989, Scalia 1989, Shapiro 1994, Tamanaha 2004, Whitford 2000). At roughly the same time as the Rule of Law was making its comeback in domestic American discourse, a parallel revival was occurring on the international plane. The renewed popularity of the term here far outstrips its previous popularity, in part because of Rule of Law’s newly widespread application, by scholars, policy makers, government agencies, and nongovernmental organizations (NGOs), to previously unrelated social science disciplines. In the field of law and economic development, for example, the Rule of Law revival has been lead by the international financial institutions (IFIs)—the World Bank, the International Monetary Fund (IMF), the Asian Development Bank, etc.—by the aid and development arms of the U.S. government and the European Union, and to a lesser extent by NGOs (Carothers 1998, 2006; Dezalay & Garth 2002; Domingo & Sieder 2001; Ohnesorge 2003b; Upham 2002; U.S. General Accounting Office 1999). In this context, the Rule of Law is understood as being related to economic development and the workings of a market economy, rather than as a set of normative political commitments (Ohnesorge 2003b). At the same time, and not unrelated to the economic development sphere, Rule of Law discourse has come to

1

This review draws on the author’s earlier essay, Ohnesorge (2003a).

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play an important role in the fields of comparative politics and comparative law, particularly with respect to China and East Asia. The diversification of Rule of Law’s applicability across a wider range of academic disciplines has led to an explosion of literature either debating the role of Rule of Law or employing it as a variable in economic and political development models (Hendley 2006, Jensen & Heller 2003). An informal survey shows that articles, books, and other scholarly publications that employ Rule of Law as described above increased at an average rate of approximately 25% annually between 1998 and 2006.2 This review therefore examines in broad terms the role Rule of Law rhetoric plays in various practical applications, rather than tracing minute definitional shifts in this ever-expanding field. This review begins with a short discussion of Rule of Law rhetoric in Anglo-American law and politics, stressing the political uses to which the term has been put, rather than refining the content of the concept itself. It then discusses the international Rule of Law renaissance, focusing on the particular roles that Rule of Law rhetoric plays in the economic development activities of the IFIs and in the academic literature associated those activities. Because the guiding principle is that the Rule of Law is key to economic development, this review includes an exploration of the extent to which the outstanding economic development that occurred in Northeast Asia actually conformed to the Rule of Law claims of this new Law and Development literature. This is followed by an exploration of how the Rule of Law rhetoric of international development has evolved over the past several years, in line with changing ideas about economics and about development itself. Finally, this review explores how Rule of Law is used in the literatures of comparative politics and comparative law, which are often related to the

2

Survey performed through electronic search engines. Figures on file with author.

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economic development literature yet are also distinct.


RULE OF LAW RHETORIC IN THE ANGLO-AMERICAN TRADITION For an American legal academic observing the IFIs from the outside, it becomes clear that they and their academic supporters define the Rule of Law in very particular ways, often quite differently from how the term has been used by legal thinkers, and that they attempt to use the concept for broader social theorizing, also in contrast to traditional legal scholarship (Ohnesorge 2003b). To highlight these particularities, it will be helpful to explore briefly the Rule of Law rhetoric in mainstream Anglo-American legal scholarship. Three points should be made in this regard. First, at least in the United States, the Rule of Law has been invoked more often for political than for analytical purposes and should not be understood as a legal term of art. Thus, “[w]hen an American writes or speaks on [the rule of law] he usually begins with a confident assumption that everybody knows what the rule of law is and then devotes the rest of his time to a bold and eloquent statement in favor of it” ( Jones 1958). Our tradition has produced no agreed definition of the Rule of Law, and there is no important tradition of academic analysis and explication of the term, as there is with the German Rechtsstaat ideal ¨ ¨ (Bockenf orde 1991). Few American law students study jurisprudence (legal philosophy), and it is safe to say that the overwhelming majority of American law students never address the Rule of Law concept in any systematic way. Moreover, in modern American legal scholarship it is far more damning to demonstrate that a legal rule has negative social effects or that a judicial decision cannot be reconciled with the governing statute or existing precedent than to demonstrate that a rule or decision violates some vision of the Rule of Law. Given this environment, scholars have

received little tangible reward for developing and refining the Rule of Law as concept, and the most persuasive attempts to define the term treat it as shorthand for a group of loosely related aspirations addressing various aspects of a legal system (Solum 1994). Definitions of the Rule of Law typically address the formal characteristics of the materials of the legal system, emphasizing the value of rules rather than discretionary standards, and calling for clarity, specificity, and publicity. In Hayek’s (1944) famous formulation, for example, the Rule of Law means that Stripped of all technicalities, the government in all actions is bound by rules fixed and announced before-hand—rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.

Definitions often also address the role of the adjudicator, typically emphasizing neutrality as between the parties, independence from other arms of the government, an open mind with respect to any particular case, and fidelity to the law rather than to personal political or social goals. Definitions of the Rule of Law generally address as well certain due process or natural justice rights of citizens confronting the legal system, such as rights to know the legal basis for state action against them, to present evidence and to contest evidence used against them, and to receive reasoned explanations of legal actions affecting them. The following example stresses many of these concerns: The rule of law is a tradition of decision, a tradition embodying at least three indispensable elements: first, that every person whose interests will be affected by a judicial or administrative decision has the right to a meaningful ‘day in court’; second, that deciding officers shall be independent in the full sense, free from external direction by political and administrative superiors in the www.annualreviews.org • The Rule of Law

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disposition of individual cases and inwardly free from the influence of personal gain and partisan or popular bias; and third, that dayto-day decisions shall be reasoned, rationally justified, in terms that take due account both of the demands of general principle and the demands of the particular situation ( Jones 1958).


Visions of the Rule of Law that emphasize form and procedure, rather than demanding any particular set of substantive rights or norms, are sometimes referred to as formal, minimalist, or thin theories of the Rule of Law (Hendley 2006, Peerenboom 2003, Raz 1977, Stromseth et al. 2006, Tamanaha 2004). By contrast, theories of the Rule of Law that go beyond such positive aspects of a legal order, to include references to democracy and core human rights, are often referred to as substantive, maximalist, or thick theories (Hendley 2006, Peerenboom 2003, Raz 1977, Stromseth et al. 2006, Tamanaha 2004). Although legal scholarship elaborating the Rule of Law concept is growing, Rule of Law rhetoric is more typically invoked when a commentator wishes to criticize a particular legal rule or judicial decision, and there has been little effort, until recently, to use the Rule of Law as an element of broader social theorizing. A second fact about the Rule of Law as a concept in Anglo-American jurisprudence is that it has often been used to champion our way of doing things over someone else’s. A famous early example of this was the English legal scholar Dicey’s use of the Rule of Law in his argument for the superiority of English common law over French droit administratif (Dicey 1885), which later scholars suggested he did not understand beyond the most basic level (Hayek 1960, Jennings 1943, Wade 1945). Dicey claimed that England’s unwritten constitution was characterized by fidelity to the Rule of Law, which he defined in such a way as to rule out administrative law (droit administratif ) in the Continental sense. The English legal system as it actually existed did 102

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not meet Dicey’s own definition of the Rule of Law in important respects, however, leading critics to view his ostensibly scholarly enterprise as an attempt to privilege his Whig political views against the rising tide of social legislation already remaking English governance at the time ( Jennings 1943). This was an early example of Rule of Law rhetoric employing a particular definition of the term in an effort to delegitimate interventionist government, a use to which the term was put again in later eras. Rule of Law rhetoric was put to similar use during the Cold War, when Western politicians and lawyers were actively searching for principled distinctions between Western and communist legal systems, whether Soviet or Chinese (Berman 1950; Hayek 1944, 1960; Int. Assoc. Legal Sci. 1957; Int. Comm. Jurists 1959; Michael 1962). Communist legal systems were in many ways similar to those of the West in that they contained rules and standards creating rights and obligations, and they were operated by people called judges, prosecutors, and lawyers (Hendley 2006). The Rule of Law concept became a vehicle used by Western scholars to explain how this all differed in some fundamental way from legality in the West (Berman 1992). Although the collapse of the socialist world made this enterprise largely moot, Rule of Law rhetoric is still used in this way with respect to the legal system of the People’s Republic of China (Corne 1997). The Cold War context also provided the backdrop for Hayek’s invocation of the Rule of Law, which, like Dicey’s, was designed as a rhetorical weapon in the battle against interventionist government (Hayek 1944, 1960). Rule of Law rhetoric revived for a similar purpose during the Asian financial crisis that began in 1997, as a way to distinguish Western capitalism from the “crony capitalism” practiced by Asians (Greenspan 1998). This had the effect of locating the source of the financial crisis in Asia itself, rather than, to cite one possibility, in flows of “hot money” resulting from Western demands that Asian countries open


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their financial markets to global capital flows (Stiglitz 2002). In retrospect, Malaysia’s decision to restrict such capital flows in the face of the crisis appears to have been a good idea (Stiglitz 2002), whereas the subsequent collapses of Enron, Arthur Andersen, and other pillars of corporate America have shown that crony capitalism can thrive in what is often described as an overly legalized society. A final point concerns the use of Rule of Law rhetoric to mask profound political differences in foreign affairs. For example, the Clinton administration made extensive use of this tactic to blunt opposition from American progressives and human rights activists to China joining the World Trade Organization (WTO), even launching a “U.S.-China Rule of Law Initiative” (Gewirtz 2003). The argument went essentially as follows: WTO membership will force China to become a more legalized society in areas affecting international trade and economic governance, and this Rule of Law in trade and commerce will spill over into the realms of politics and individual rights (Barshefsky 2000, Ma 2007, Ohnesorge 2003b, Orts 2001). Americans should therefore all unite under the slogan that what China needs is the Rule of Law, and stop worrying about giving up the threat of trade sanctions as a tool for pressuring China on human rights issues. Capitalist development in China will take care of everything. The accuracy of this prediction, with its resemblance to the “all good things go together” aspects of 1950s and 1960s modernization theory, remains in doubt (Ma 2007).

RULE OF LAW AND DEVELOPMENT ASSISTANCE Rule of Law rhetoric in international development dates roughly from the fall of the Berlin Wall and likely grew out of a combination of circumstances. Since their creation in the years after World War II, the charters of the IFIs have contained general restrictions on political interference in the affairs of borrower countries. In a suddenly unipolar world,

in which developing and transition countries had nowhere to turn for help but to the West, these restrictions apparently became a hindrance to the IFIs and the governments they serve. As a consequence, although these provisions in the constitutions of the IFIs were never removed, they were strategically reinterpreted so as not to rule out IFI demands for specific changes to the legal systems of bor˜ rower countries (Danino 2007, Effros 2001, Upham 1994). Theoretical justification for this expansion of IFI activities has been provided by the rise of New Institutionalism in economics, which argues that legal rules and institutions can profoundly affect economic performance (Coase 1998; North 1990, 1992). Although this is clearly true, and often just a restatement of Max Weber’s ideas of a century ago (Trubek 1972), the economic importance of legal rules and institutions does not render them nonpolitical. The discovery that legal systems matter for economic performance is, however, the official IFI explanation for their newfound willingness to insist on changes in the legal systems of their borrowers (Dakolias 1999, Hassan 1999). The process by which the IFIs strategically reinterpreted their charters, clearly driven by changes in the wider geopolitical context in which they operate, used to be kept relatively quiet by the institutions themselves. Now, however, one finds in print an IMF lawyer publicly praising the World Bank’s General Counsel for this bit of creative lawyering, without seeming to recognize the irony of all this from those who would preach the Rule of Law (Effros 2001).

The IFIs and the Neoliberal Rule of Law of the 1990s As for the Rule of Law vision put forth by the IFIs during the 1990s, the basic approach can be summarized as follows. Although the Rule of Law rhetoric of the IFIs echoed to some extent traditional definitions of the Rule of Law, emphasizing form, procedure, and process, the substantive core of the IFI law reform www.annualreviews.org • The Rule of Law

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efforts was to convince borrower countries to adopt sets of rules that would enshrine the policy prescriptions of the Washington Consensus in their legal systems (Trubek & Santos 2006). Deregulation, privatization, tight restrictions on bureaucratic discretion, stringent property rights protections, especially for intellectual property, enhanced protections for minority shareholders, and aggressive antitrust regulation provided the substantive core of many Rule of Law efforts (Ohnesorge 2003b). The vision of law was simultaneously positivist and formalist: positivist in the sense that law consists of a set of rules created by the state and applied to particular cases, and formalist in the sense that this set of rules, applied in the technically correct way, will provide one correct answer in the vast majority of cases. Although sophisticated students of jurisprudence may contest positivist accounts of law and formalist accounts of law application, both phenomena are probably inherent in efforts, like those of the IFIs, to fundamentally remake societies through instrumentalist use of law. In any case, this was all presented as a package of technical changes necessary for economic development, perhaps out of a sense that there were still some limits on what the IFIs could demand in terms of political change in borrower nations. There were always problems with aspects of the IFI Rule of Law agenda, however, a few of which are discussed here. To take one example, with respect to the role of courts, the rhetoric faced at least three identifiable problems: one of public relations, one logical, and one empirical. The public relations problem was (and is) that the IFIs want courts to “just enforce the rules,” to function as courts do in Weber’s ideal type of formal, legal rationality. To call this the Rule of Law, however, is to strip away nearly all normative appeal the concept may have. People care about the Rule of Law primarily because they believe it will protect them from the state, and where the state is democratic this sometimes means protection from the will of the democratic majority. Simple “law and order,” a “dictatorship of


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law” in Russia’s President Putin’s terms, may be sufficient to protect them from their fellow citizens in the course of their daily lives, but it is too thin to be normatively satisfying. Thus, for the Rule of Law to have normative appeal it must be somewhat thick, including some substantive content that courts can draw upon to shape and limit the law enacted by other state organs, whether this substantive content is conceived of in terms of universal human rights norms, natural law, or natural justice. In a legal order in which courts lacked this authority, the Rule of Law could be consistent with the worst sorts of state-imposed totalitarianism, but where courts do have authority to locate and invoke legal norms beyond the positive law, they cannot be limited to mechanistic enforcement of the rules. The reason that Law and Economics scholars in the U.S. context are often considered hostile to the Rule of Law is that they champion neither formalist rule application nor traditional rights-centered analysis by judges, but instead champion judicial activism to reshape the rule structure toward economically efficient outcomes (Tribe 1989). This may help explain the relative absence of these scholars from the IFI Rule of Law initiatives, despite their basic agreement with the free market, antiregulatory agenda of the IFIs. One could argue that they are intellectually more consistent than the IFI Rule of Law advocates, who are engaged in a fundamentally instrumentalist use of law but who still want to don the Rule of Law mantle. If pressed, perhaps those who mastermind IFI Rule of Law initiatives would admit that they believe law can be changed instrumentally until it reflects their preferred set of norms and functions but can then be somehow insulated from further instrumental manipulation. This type of thinking is not new in the history of legal aid to the developing world, but the lessons of history are not encouraging (Trubek & Galanter 1974, Trubek & Santos 2006). Legal instrumentalism is not a tool that is limited to the service of any particular ends.


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The logical problem arises out of the mechanistic role assigned to courts in the IFI Rule of Law literature, which would, in the IFI view, maximize the ability of private actors to understand the legal rules and to understand how the rules would be applied to their economic activities, thus maximizing predictability. In a good number of cases, however, a court’s blindly formalist rule application, like the blind enforcement of contract language, would not in fact result in a predictable outcome because such application would cut against common sense, or the common sense of the particular industry or business community whose dispute is before the court. This problem can be avoided by saying that courts should enforce rules against the basic background context of a market economy, but such a statement opens up the empirical problem, discussed below, that in fact market economies display great diversity in terms of legal rules and legal system performance. The empirical problem is that the judiciaries in Northeast Asia, particularly during the high-growth decades of the 1960s, 1970s, and 1980s, did not perform as the Rule of Law rhetoric imagines (Ohnesorge 2003b, 2007a). To paint with a broad brush, Northeast Asia’s judiciaries were surrounded by procedural rules and incentive structures that made civil litigation comparatively unattractive to plaintiffs, they were slow in adjudicating the cases that were brought, they were staffed by judges with little or no practical training in legal practice or in business, and at least in South Korea and Taiwan judicial corruption was a serious problem. Whether cultural factors also contributed to low rates of civil litigation is not addressed here, but these objective factors certainly contributed to a low propensity to litigate. Did the fact that Northeast Asia’s judiciaries operated in this way negatively affect economic growth? We do not really know. We do know, however, that American industry used to view the nonlitigiousness of Northeast Asia as providing Asian manufacturers with a competitive advantage, and it may also be the case that a user-unfriendly judicial system

encourages the settlement of commercial disputes that would end in wasteful litigation in a system more receptive to litigation. This hypothesis at least resonates with our own critiques of American litigiousness and is more plausible than the counterfactual—that East Asia would have grown even faster had its courts been more receptive to litigation. In theory there should be some ideal level of judicial receptivity to litigation, yielding the optimal balance between litigation and settlement. In fact, we have no clear idea where this point would lie and no real idea how to get there given the numerous legal and nonlegal factors that affect decisions to litigate or to settle. What we know, however, is that high-growth Northeast Asia’s judiciaries did not conform to the IFI Rule of Law model, and that Northeast Asia’s economic regulation likewise did not conform to the model with respect to corporate governance, administrative law, intellectual property law, financial market regulation, the regulation of foreign investments, and a host of other areas (Ohnesorge 2003b, 2007a). The 1997 financial crisis certainly exposed weaknesses in Northeast Asia’s economies that had not been widely acknowledged previously, but to say that the 1997 crisis requires that Northeast Asia abandon what it had been doing to adopt the Washington Consensus would be simply ideology. One could just as well argue that the collapse of Enron and the bursting of the stock market bubble of the 1990s requires the adoption of the Northeast Asian model here.

The Ever-Expanding Rule of Law: From the Washington Consensus to Comprehensive Development As of the late 1990s, the IFI vision of the Rule of Law seemed very narrow, essentially an image of a functioning legal infrastructure that would enforce the substantive rules corresponding to the neoliberal orthodoxy. This meant a legal system that would strictly enforce contract and property rights, especially intellectual property rights and www.annualreviews.org • The Rule of Law

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creditors’ rights, and strictly limit the discretionary authority of bureaucratic officials (Ohnesorge 2003b). Although this is still true to a point, the Rule of Law rhetoric of the IFIs has clearly changed with the times. In 1999, World Bank President James Wolfensohn proposed a new Comprehensive Development Framework, which addressed legal reform issues in the following terms:


Without the protection of human and property rights, and a comprehensive framework of laws, no equitable development is possible. A government must ensure that it has an effective system of property, contract, la-

(1) the government itself is bound by the law; (2) all in society are treated equally under

bor, bankruptcy, commercial codes, personal rights laws and other elements of a com-

the law; (3) the government authorities, including the judiciary, protect the human dignity of its citizens; and (4) justice is accessible for its citizens. The rule of law requires transparent legislation, fair laws, predictable enforcement, and accountable governments to maintain order, promote private sector

prehensive legal system that is effectively, impartially and cleanly administered by a well-functioning, impartial and honest judicial and legal system (Wolfensohn 1999, p. 10–11, emphasis added).

This reflects both a broadened definition of what development is, exemplified in the work of Amartya Sen (see Sen 1999), as well as a growing questioning of the neoliberal orthodoxy associated with the Washington Consensus. Former World Bank Chief Economist Joseph Stiglitz has both a Nobel Prize and a popular book entitled Globalization and Its Discontents (Stiglitz 2002), a book that is highly critical of rigid adherence to the Washington Consensus, particularly by the IMF. Perhaps reflecting the changing climate in the field of development, the IMF felt that it had to demonstrate that it cared about the world’s poor as much as Stiglitz, so it posted on its website an extraordinary open letter to Stiglitz from one of its economists, attempting to refute Stiglitz’s charges of rigid adherence to neoliberal orthodoxy (see the 2002 letter from Kenneth Rogoff at http://www.imf.org/external/np/vc/2002/ 070202.htm). Corresponding to this changing climate, the recent tendency has been for IFI Rule of Law rhetoric to become dramatically more 106

thick, to expand to the point where it becomes a term to express just about everything one might associate with fair and just governance. Democracy, justice, human rights, and clean government are now layered on top of thin Rule of Law attributes such as clarity and predictability, the enforcement of property and contract rights, and the control of bureaucratic discretion. Reflecting this trend, the World Bank’s 2002 Initiatives in Legal and Judicial Reform defined the Rule of Law as a condition that prevails when

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growth, fight poverty, and have legitimacy. Legal and judicial reform is a means to promote the rule of law (World Bank 2002, p. 3, emphasis added).

What we see now, at least from the World Bank, perhaps represents the revenge of the strategy that inspired the use of the term Rule of Law to describe neoliberal legal changes in the first place. By expanding the definition to include things dear to democracy and human rights activists and the international NGO community, things like human dignity, fighting poverty, and legitimacy, the IFI Rule of Law has become a banner under which all right-minded internationalists can march. The IFI Rule of Law has truly become, in the words of legal philosopher Raz (1977), the Rule of Good Law, which represents a natural extension of the logic of New Institutionalist economics. If all aspects of a country’s legal system are relevant for economic development, and thus within the legitimate scope of IFI scrutiny, then there is no reason why the narrow neoliberal emphases on privatization, deregulation, property rights protection, and


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controlled bureaucracy cannot be augmented by demands for human rights protections, a social safety net, and other elements of social ˜ democracy (Danino 2007). What is lacking, however, is a sense that, despite their ability to reinterpret their own charters, the IFIs should really not be in the role of micromanaging national political and social systems. To make such an argument, however, puts one in the position of defending the principle of national sovereignty, which has fallen dramatically out of favor. At this point, then, the IFI Rule of Law seems to represent a consensus among both the NGO Left and Washington Consensus Right that they should be able to use the power of the IFIs, which is of course based on the often dire economic needs of borrowing countries, to impose their policy preferences. Empirically, too, the claim that this new Comprehensive Development Rule of Law is necessary for economic development is proven false by an examination of the economic development history of Northeast Asia. Although it remains true that Northeast Asia in the high-growth decades violated many tenets of the Washington Consensus Rule of Law, it violated even more tenets of the 2002 Comprehensive Development Rule of Law. Human rights protections, especially in areas such as labor organization, workplace safety, and the environment, were minimal at best, and social safety nets were thin or nonexistent. For those who care about these things, these failings may be an unattractive truth to confront, but in the interest of clear thinking about the Rule of Law, international governance, and the role of the IFIs, a bit of skepticism may be in order.

Rule of Law in the Economic Development Literature The Rule of Law initiatives of the IFIs have supported, and been supported by, a rapidly growing academic literature that uses the Rule of Law concept in theorizing about legal systems and economic growth (Carothers

2006, Gillespie 2006, Hendley 2006, Jensen & Heller 2003). This literature and scholarship has grown largely out of a link between definitions of the Rule of Law and two economic concerns: defining and enforcing private property rights and reducing bureaucratic discretion in economic governance. The first, enforcement of property rights, is understood to be a linchpin of free market economies; thus the integration of Rule of Law and economic development builds in an assumption about economic values in developing countries that is often left unexamined. The second Rule of Law–economic development concern is with the limitation of bureaucratic discretion, supporting efforts to bind official action within the strictures of the law and the machinery of justice. In this sense, it tends to overlap with contemporaneous discussions of transparency, anticorruption, and good governance. It also harkens back to Hayek’s original Rule of Law definition and its concern with promoting predictability for private economic actors. A useful way to think about the Rule of Law as used in this literature is to think of the classic gap of law and society scholarship: the gap between law on the books and law in action. If one thinks about the efforts of the early 1990s to transform Russia into a market economy, those early efforts focused primarily on the creation of private property through rapid, mass privatization. If one is guided only by the thinking of neoclassical economics, which tends to proceed on the assumption that property and contractual rights are clear and enforceable (Coase 1998, North 1992), there is little need to focus on the legal system, beyond putting good laws in place. Simply creating private property and putting in place the laws of a market economy did not prove sufficient, however, introducing the would-be reformers of the Russian economy to the gap problem on a dramatic scale (Hendley 2001, Sachs & Pistor 1997). This realization likely helped drive the turn by 1990s law and development practice to North and New Institutional www.annualreviews.org • The Rule of Law

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Economics, which at least recognizes that attention must be paid to the entire institutional setting within which legal rules operate. But what if seemingly reformed legal institutions themselves do not solve the gap problem? Or, put another way, what is lacking in a legal system that has good law and seemingly reformed institutions, but that still does not produce the desired result? In much of the literature, the Rule of Law concept seems to provide the answer to this gap problem, serving either as the magic something that animates the rules and institutions of a well-functioning legal system, or as the X factor that is missing in legal systems in which good law and seemingly adequate formal institutions nevertheless resist reform. Describing the problem in terms of the Rule of Law does not solve it, of course.


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Rule of Law in Postconflict Nation Building In the past few years, the Rule of Law has been invoked in a new arena even more contested than the field of economic development: the realm of nation building in the wake of military intervention (Stromseth et al. 2006). The prolonged U.S. military presence in Iraq and Afghanistan following the ousting of the governments in those nations has created an extraordinarily urgent need to develop legal nation building expertise. Secretary of State Colin Powell’s insight that “if you break it, you own it” continues to resonate. The United States and its allies displaced existing legal and political orders in Iraq and Afghanistan, and now that they are seeking to reestablish such orders, they have turned to the Rule of Law as a concept to structure and to legitimate their efforts. This need for legal nation building mirrors efforts in other postconflict societies around the world, from East Timor to Somalia to Kosovo (Stromseth et al. 2006). In societies such as Iraq and Afghanistan, which are under the military control of the United States and its allies, the U.S. mili108

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tary has taken on much of this role, and the military, too, has decided to invoke the Rule of Law as the overarching theme to describe what has fallen under the rubric of civil affairs activities (Gordon 2006). The military has organized a series of Rule of Law conferences, such as the September 2006 conference “Implementing the Rule of Law and Human Rights in Stability Operations,” jointly sponsored by the U.S. Army Judge Advocate General’s Legal Center and School and Harvard University’s Carr Center for Human Rights Policy (Gordon 2006). The fact that these legal nation building efforts are taking place in Muslim countries means that Islamic law will have to be accommodated within a liberal, secular Rule of Law ideology, which is going to be no easy task, so leading U.S. scholars of Islamic law are being invited to participate as well (Gordon 2006). Like others who have made the move to Rule of Law rhetoric, these postconflict nation builders invoke the term liberally, while simultaneously struggling to define what it actually means (Gordon 2006). Thus, Stromseth et al. (2006) devote an entire chapter of their book, Can Might Make Rights? to explicating the Rule of Law as a concept, while at the same time using the term Rule of Law in the titles to two separate chapters. In practice, the Rule of Law here is used to cover most aspects of a justice system; for example the job description in a recent State Department effort to recruit military personnel to serve as Rule of Law advisors in Iraq included “judiciary and prosecutorial development, law enforcement, corrections and detention, anticorruption, court administration, crime lab trainers and legislation promulgations” (U.S. Dep. State 2007). This mirrors the integration of various legal system attributes into the Rule of Law variable in the social science literature, discussed above, which can serve a public relations purpose. For example, the Rule of Law variable used in the influential study by Knack & Keefer (1995) on institutions and economic performance was originally termed “law and order tradition” by the International Country

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Risk Guide. While law and order may in fact be a more accurate description of what the variable is supposed to capture, it clearly does not carry the legitimating cachet of the Rule of Law.


RULE OF LAW IN COMPARATIVE LAW AND POLITICS The Rule of Law concept is also closely related to the judicialization thesis—the idea that societies in many parts of the world are relying more and more on their judiciaries, and the adjudication process, in governance (Hertogh & Halliday 2004, Hirschl 2004, Ohnesorge 2007b, Shapiro & Stone Sweet 2002, Tate & Vallinder 1995). In the words of Hertogh & Halliday (2004, p. 277), “[i]n many countries, judicial review has become immensely popular as a treatment for the pains of modern government.” Judicialization discussions often focus on the judicialization of politics, which results most obviously when a Supreme Court, or often a special constitutional court, establishes its authority to effectively review acts of the legislative and executive branches (Ginsburg 2003, Gloppen et al. 2004). But even the judicialization of politics is not limited to the constitutional plane, as invigorating administrative law to facilitate judicial review of administrative action also results in judicialization of governance (Hertogh & Halliday 2004, Shapiro & Stone Sweet 2002). Furthermore, judicialization is being extended to governance in areas that are not directly political, such as corporate law, where private shareholder litigation is promoted as a tool for governing corporate owners and managers (Ohnesorge 2007b). In this judicialization discourse, Rule of Law is often used to describe legal systems characterized by a high degree of judicialization. Although judicialization can be a good thing, an association of judicialization with the Rule of Law has a somewhat pre–Legal Realist, American tinge to it in the sense that it assumes that judges are more law-bound (less political)

in their decision making than are actors in the other branches, and thus a country more ruled by judges is more ruled by law (and less by politics). Although judiciaries obviously operate according to different principles than those governing policymaking by the other branches of government, to the extent that Rule of Law rhetoric suggests that judicialization means an escape from politics, it is bound to disappoint. Although much of the judicialization literature is comparative, the Rule of Law concept plays an even more expansive role in the comparative law scholarship on East Asia and China. In trying to explain this, one should probably consider three distinct contributing causes. The first cause is China’s legal modernization efforts, which spawned a great deal of discussion within China concerning the difference between rule of law and rule by law and concerning which combination of Chinese characters accurately conveys which concept (Orts 2001, Peerenboom 2003). The Chinese government has committed itself to one of these concepts, so although one might be tempted to dismiss the of/by debate as arid scholasticism, it is clearly about something very important. Rule by law can be considered a formal or thin Rule of Law, whereas Rule of Law for many conveys a sense of something thicker, imbued with substantive values such as democracy or human rights. The Chinese government is clearly much more tolerant of legal theory debates than of debates over fundamental political reform, so of/by debates seem to serve as a proxy forum for debating things that really do matter. As a result, leading Chinese legal scholars treat the Rule of Law concept with a seriousness that more skeptical Americans might find surprising (Chen 2006, Zhang 2002). This domestic Chinese discourse is paralleled in the work of U.S. legal scholar Randall Peerenboom, who invokes the thick versus thin Rule of Law paradigm in many of his writings on Chinese law (Peerenboom 1999, 2002, 2003). Peerenboom trained in philosophy before studying law (Peerenboom 1993), and www.annualreviews.org • The Rule of Law

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his writings display a pronounced willingness to engage conceptualist jurisprudence. However, as with the Chinese scholars engaged in their of/by debates, Peerenboom’s elaboration of concepts is related to underlying political concerns, in his case an argument that the Chinese government has made substantial progress toward the establishment of a Rule of Law, albeit on the thin side, and should be given more credit for this internationally. His argument draws on observed correlations between the Rule of Law and levels of economic development, particularly in East Asia, from which he derives the idea that it is unfair and perhaps counterproductive to criticize a government such as China’s as long as its Rule of Law performance is appropriate to its level of economic development. Peerenboom, however, is hardly the only foreign commentator on Chinese law to be drawn to Rule of Law rhetoric. In environmental law, and many other areas, saying that China lacks the Rule of Law provides an easy shorthand to describe the enormous gap between the law on the books, which often appears adequate, and the subpar functioning of the legal system (Ferris & Zhang 2003, Turner-Gottschang et al. 2000). At the same time that Rule of Law conceptualism was being revived in scholarship on Chinese law, the term was also rising in importance in discussion of law in Japan. Since the 1990s, Japan has been engaged in a major restructuring of its civil justice system (Rokumoto 2007, Taylor 2005), and the Rule of Law concept plays an important part, at least rhetorically, in that restructuring (Haley & Taylor 2004, Hamano 2007). Courts have played a comparatively limited role in Japanese governance, particularly with respect to reviewing administrative action, and those who would like to remedy this situation can refer to a lack of a Rule of Law to describe this situation (Oda 1996). The restructuring in which Japan is now engaged involves a significant degree of judicialization (Ohnesorge 2007b), with the promise that Japan will finally become a Rule of Law


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society. That this restructuring draws support throughout Japanese society testifies to the seductiveness of Rule of Law ideology, as Japan already appears to be among the world’s best governed societies, not one in which judicialization offers obvious governance advantages.

CONCLUSION Over a relatively short period of time, the Rule of Law concept has experienced a dramatic rehabilitation. Although this rehabilitation is reflected to some extent in mainstream legal scholarship, where the Rule of Law is discussed mainly as a set of normative concerns, it is in the international governance sphere, and in supporting disciplines such as economics and political science, that the rehabilitation is having the most real world impact. At this international governance level, which extends from economic development assistance by the IFIs to the policing activities of the U.S. military in Iraq, the Rule of Law has become a fixture of the discourse, rivaling democracy in its potency. Ironically, it is in these high-stakes arenas that the actual meaning of the Rule of Law matters less; rather, what matters is how the Rule of Law can be used. For the social scientists interested in law in development and transition, the Rule of Law is a variable that often seems to fill the infamous gap of law and society scholarship. How do we describe societies in which the gap between law on the books and law in action is comparatively small? As Rule of Law societies. What do we need to do to fix legal systems in which the gap is large, in which the law and institutions that we have helped put on the books do not function the way we would like them to? Help them develop the Rule of Law, of course. Likewise for the actors in international governance, clarifying the meaning of the Rule of Law probably serves no particular purpose and might even prove a hindrance to the pragmatic, instrumentalist uses of law that their preferred governance reforms require.

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ACKNOWLEDGMENT Special thanks to Leah Larson-Rabin for help in preparing this review.


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Islamic Constitutionalism Annu. Rev. Law. Soc. Sci. 2007.3:115-140. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/10/07. For personal use only.

Sa¨ıd Amir Arjomand Department of Sociology, State University of New York, Stony Brook, New York 117946-4356; email: [email protected]


Key Words


comparative constitutionalism, Islamic law, ideology, legal change


Abstract As the first survey of the topic, this review covers Islamic constitutionalism since its emergence a century ago, showing a significant range of historical variation. The first two phases of Islamic constitutionalism are separated by a watershed, the late coming of the age of ideology, which began with the creation of Pakistan in 1947, thus predating the contemporary resurgence of Islam by some two decades. In the first phase, Islam appeared as a limitation to government and legislation, without any presumption that it should be the basis of the constitution itself. In the second phase, Islam came to be considered the basis of the constitution and the state. In the incipient third phase of postideological Islamic constitutionalism, we witness a return to the idea of limited government—this time as the rule of law according to a constitution that is not based on but is inclusive of the principles of Islam as the established religion.

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INTRODUCTION


Islamic constitutionalism emerged in the late nineteenth and early twentieth centuries with the reception of Western constitutionalism in the Muslim world. It was elaborated and reformulated with successive waves of constitutional and political ideas. These waves gave rise to an early phase of liberal constitutionalism in the Muslim world, followed by an era of ideological constitution-making (Arjomand 1992, 2007c), and finally the current return to the rule of law and postideological constitutionalism. The conception of the place of the shari‘a (Islamic law) in the constitutional order is crucial for the definition of Islamic constitutionalism, but it was not a constant and has in fact varied considerably from one period to the next. For empirical support in this analysis, I selectively focus on the constitutional experience of the leading countries in each phase of the development of Islamic constitutionalism. This survey treats Islamic constitutionalism as a legal doctrine and does not deal with the constitutions and constitutional law of the Muslim world, except indirectly and through the impact of that doctrine. Prototypically, Islamic constitutionalism appears with the advent of modern constitutionalism from the West in the writings of a group of Islamic modernists among the reformist bureaucrats, notably Khayr alDin Pasha in Tunisia and Namik Kemal in Turkey, who participated in the drafting of the Tunisian Constitution of 1861 and Ottoman Constitution of 1876, respectively. These reformers argued that representative, constitutional government captured the spirit of Islam. This argument was also forcefully made by the Iranian diplomat, Yusof Khan Mostashar al-Dawla, in a short tract published in 1871, Yak kalama (One Word). The Tunisian Constitution itself has been fairly described as “an attempt to develop a system that is Islamic but not democratic” by introducing accountability of the ruler to the shari‘a and to an elite as the guardian of

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the public interest (Brown & Sherif 2004, p. 58). Ahmad ibn Abi Diy¯af [1872 (2005), esp. p. 75], another Tunisian bureaucrat and drafter of its constitution but writing a decade after the constitution’s promulgation, based his constitutionalist reading of Islamic history on his remarkable intuition that the shari‘a imposed a limitation upon autocratic monarchy. In his words, “monarchy limited by law (k¯anun)” was indeed the normative form of government in Islam after the pristine caliphate. It was violated in some historical periods but was restored by the great Ottoman dynasty. Similar assertions were made by the proponents of constitutionalism during the first decade of the twentieth century in Iran, albeit in a more facile and less scholarly fashion. One pamphleteer asserted that constitutional government had been founded by Prophet Muhammad and was first demanded from the rulers of Europe by the returning crusaders who discovered it as the secret of the Muslims’ success; and a leading journalist claimed it as the pristine form of government in Islam that had subsequently been forgot¯ ten by Muslims (cited in Ajud¯ ani 2003–2004, pp. 367–68, 371–72). This early constitutionalism, which could be considered implicitly Islamic or protoIslamic, found its major embodiment in the Ottoman Fundamental Law (k¯anun-e es¯asi) promulgated on December 23, 1876. It was fully compatible with Islam as institutionalized in the Ottoman Empire, but it would have seemed absurd to designate it explicitly as Islamic for that very reason. It declared the person of the sultan as sacrosanct and not answerable to parliament and entrusted him with “the enforcement of the ordinances of the shari‘a and the state law (k¯anun).” The council of ministers under the grand vizier included the highest religious official of the empire, the Shaykh al-Islam, and the judiciary power consisted of the religious or shar‘i and civil or state law systems. Although the sultan suspended the Ottoman Constitution in February 1878, when the parliamentary deputies insisted on

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ministerial responsibility to parliament, it was regularly reprinted in the imperial yearbook until its restoration in 1908 during the “second constitutional (‘Young Turk’) period” (Lewis 1966, pp. 11–14).


THE EMERGENCE OF ISLAMIC CONSTITUTIONALISM IN IRAN The emergence of Islamic constitutionalism proper, however, dates from the Iranian Constitutional Revolution (1906–1911). It was the result of the first serious constitutional debates about Islam occasioned by the prominence of the Shi‘ite jurists in that revolution as the national leaders against the Shah and autocracy. All the major issues and problems concerning the place of Islam in a modern constitutional order surfaced in the process of constitution-making and judicial reforms and dominated the public debate in the lively free press. The illusion of the identity of Islam and constitutionalism was badly shaken as the secularizing implications of constitutional law and parliamentary legislation became clear in this process, but it was never given up and was in fact made more robust by being transformed into the proposal for “shar‘i” or “shari‘a-permissible” constitutionalism (mashruta mashru‘a). Although few of these problems were definitively or satisfactorily resolved by it, the idea of shar‘i constitutionalism became clearly defined and elaborated. As distinct from secular constitutionalism, this form of Islamic constitutionalism considered the shari‘a a firm limitation on government and legislation. The peculiarity of Iran as the only Muslim country where Shi‘ism was the established religion left an indelible mark on the character of Islamic constitutionalism as it developed during this first decade of the twentieth century. What distinguished the Shi‘ite from the Sunni (mainstream) branch of Islam by the nineteenth century was its firmly institutionalized clericalism and the existence of a powerful Shi‘ite hierocracy independent of the state. Unlike the Ottoman constitutionalists who

needed to persuade the sultan directly, the Iranian constitutionalist also had the option of turning to the Shi‘ite hierocracy. As a result of this conscious strategy by the constitutionalist movement to draw in the leaders of the Shi‘ite hierocracy in order to pressure the Shah into granting Iran a constitution, the aims of the movement were presented as fully consistent with Islam and implicitly with the interest of the hierocracy to limit the power of the autocratic state. As one clerical constitutionalist affirmed, Iranian constitutionalism was not to imitate foreign constitutionalism and “does not wish any (reprehensible) innovation ¯ (bed‘at) to occur in religion” (cited in Ajud¯ ani 2003–2004, p. 205). This assertion of the identity of constitutionalism and Islam often involved crude and misleading reductionism. The conflation was seriously aggravated by a double entendre with the traditional and modern meanings of mellat as religious community and as the nation. This double meaning made the leaders of the Shi‘ite community appear as the leaders of the Iranian nation as well. The double entendre was useful for securing the support for the constitutionalist movement of the clerics who thought they were promoting the interests of Islam and of the hierocracy against the state and incidentally allowing the representation of Christian, Jewish, and Zoroastrian minorities as independent constituencies in the newly established Iranian Parliament (Majles) ( just as with the Ottoman millet system). However, it also caused serious confusion as the same expression, for example “rights of the mellat/melli rights,” could be read as national (i.e., constitutional) rights by the one side and religious rights (i.e., as specified by the shari‘a) by the other, and it unintentionally inscribed the religious leaders into the constitutionalist movement and ¯ the constitutional order (Ajud¯ ani 2003–2004). The emergence of Islamic constitutionalism in this Shi‘ite form is covered in Hairi’s (1977) Shi‘ism and Constitutionalism in Iran. It was, in the first instance, elaborated in 1907 by Shaykh Fazl All¯ah Nuri (d. 1909). Nuri, one of the three highest ranking Shi‘ite jurists who www.annualreviews.org • Islamic Constitutionalism

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had supported the demand for a constitution in 1905–1906, was alarmed by the secular implications of constitutional government and split from the constitutionalist camp when the discussion of the draft supplement to the Fundamental Law began in 1907. His determined opposition forced all parties in the constitutional debate to scrutinize the principles of order that underlay the Western constitutional models, while he himself launched an Islamic traditionalist movement that eventually rejected parliamentary government altogether and advocated a return to traditional autocracy. In 1907, however, he cogently formulated the idea of shar‘i constitutionalism that gained considerable currency even among the clerics who remained in the constitutionalist camp (Hairi 1977). The core idea of shar‘i constitutionalism was embodied in Article 2 of the 1907 Supplement to the Fundamental Law, which declared: “At no time must any legal enactments of the National Consultative Assembly . . . be at variance with the sacred principles of Islam . . . .” Furthermore, a committee of no less than five religious jurists (mojtaheds) was given the power to “reject, repudiate, wholly or in part, any proposal that is at variance with the sacred laws of Islam.” The most elaborate and influential justification of constitutionalism in terms of Shi‘ite jurisprudence was written in Iraq in the same period and, despite the fact that its author was in the constitutionalist camp, followed Nuri in insisting on the observance of the shari‘a as a limitation on parliamentary legislation. Tanbih al-umma wa tanzih al-milla (Admonishment of the Umma and the Purification of the Nation/Religious Community) by Mirz¯a Mohammad Hosayn Gharavi N¯a’ini (d. 1936) was published in Baghdad in 1909. N¯a’ini adopted the dichotomy of despotic and constitutional governments from the contemporary Arab thinker ‘Abd al-Rahm¯an alKaw¯akibi, modifying it into two forms of government called proprietary or patrimonial (tamallokiyya) and custodial (velay¯atiyya). He then put forward a new reconciliation of constitutional government and the Shi‘ite theory


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of the Imamate, beginning with the Shi‘ite belief that the truly legitimate government belongs to the twelfth Imam who will remain in occultation until the end of time. According to this new Shi‘ite constitutional theory, it was necessary to change a despotic regime to a constitutional one because the former consisted of three sets of usurpations and wrongdoings: (a) It was a usurpation of the authority of God and an injustice (zolm) to Him, (b) it was usurpation of the Hidden Imam’s authority and injustice to the Imam, and (c) it involved injustice to or oppression of the people. By contrast, constitutional government was only injustice to the Hidden Imam because his authority was usurped. Thus, a constitutional regime reduced the three sets of injustices to one and was therefore preferable to despotism as the lesser evil. With one condition, this qualified legitimacy of constitutional government could become categorical: If the constitutional ruler in his exercise of custodial authority “gains the approval of the ulema [as deputies of the Hidden Imam], then there will remain no usurpation and no injustice to the Imam” (Hairi 1977, pp. 193–94, translation slightly modified). Furthermore, N¯a’ini was careful to impose all the same limitations on parliamentary legislation as other Shi‘ite jurists, who had supported constitutionalism but had modified the wording of the crucial equal protection Article 8 of the 1907 Supplement to the Fundamental Law to read: “The people of the kingdom of Iran will have equal rights before the state law” (emphasis added). (The intention was to exclude from equal protection of the law the inequalities between Muslims and non-Muslims, men and women, free persons and slaves as prescribed in the shari‘a.) N¯a’ini accordingly accommodated the substance of the idea of shar‘i constitutionalism regarding the restriction of parliamentary legislation to secular or customary (‘orfi) affairs and explicitly restricted equality before the law to man-made or positive laws (qav¯anin mawzu‘a) on the assumption that they cannot override the shari‘a (Hairi 1977, p. 225).


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This describes the theory of Islamic constitutionalism as it was formulated in relation to Shi‘ite jurisprudence in Iran in the first decade of the twentieth century. The practice was very different. The committee of five mojtaheds was never formed because the great majority of Shi‘ite jurists selected by the Second Majles (1909–1911) in several rounds considered it beneath their dignity to accept, and the majority of clerical supporters of the Majles withdrew from politics in disillusionment. Only two politically ambitious clerics in the Majles, Sayyed Hasan Modarres and H¯ajj Mirz¯a Yahy¯a, the Im¯am Jom‘ah of Khoi, did perform the supervisory role of insuring consistency of legislation with the shari‘a in a fashion, without formally instituting a committee (Arjomand 1993b). A generation later, however, as is discussed below, some of the Shi‘ite jurists inspired by it partially fulfilled the promise of Islamic constitutionalism by codifying many of the substantive norms of the shari‘a in the Iranian Civil Code. In the first phase of Islamic constitutionalism surveyed in this section, shari‘a appeared as a limitation to government and legislation. There was never a presumption that it should be the basis of the constitution itself. In this period, Islam was considered a part of the larger issue of constitutional governance and not as the basis of the constitution. The impact of Islam on constitutionalism with the late coming of the age of ideology in the Middle East was radically different from the first, and far more destructive. In this wave of ideological constitution-making,1 Islam increasingly appears as the basis of the constitution 1

The defining characteristics of the ideal type that I have called “ideological constitution,” as originally developed in the Soviet Constitution of 1918, are (a) the conception of constitution primarily as an instrument of social transformation and only secondarily as the foundation of the political order, and (b) the nullification of civil and human rights when found inconsistent with the ideological principles underlying the constitution. The interwar period is considered the highpoint of the age of ideology in Europe, with communism and fascism pushing liberal democracy into a defensive corner intellectually. The age of ideology shifted to the emerging Third World after expiring in Western Europe in 1945 (Arjomand 1992, 2007c). Developmental-

and the state rather than as a limitation to them.

PAKISTAN AND ISLAMIC CONSTITUTIONALISM The next phase of Islamic constitutionalism began after the creation of Pakistan in 1947 and continues to the present; its distinctive feature has been the ideological treatment both of Islam and of the constitution. After the partition of India, with which occurred much communal violence, the citizens of the new nation of Pakistan, including many refugees, embarked on setting up a constitutional state for the Muslims of India. Despite the declaration of Pakistan’s founder in favor of a secular state, a consensus soon emerged that this new state was to be based on Islam. The fundamentalists, led by Mawlana ` Abu’l-a` la’ Mawdudi (d. 1979), founder of the Jamaat-i Islami, who had opposed the idea of Pakistan as a secular state, now launched the movement for an Islamic constitution, calling for an ideological state that was endorsed by a convention of Sunni and Shi‘ite ulema (Maududi 1960, pp. 154–56, 354; Binder 1961). This ideological state was to be distinct from other postcolonial new states of the era because the struggle to liberate Muslim territories from foreign imperial rule had no basis in Islam. What Islam required was not a war of national liberation but the establishment of the sovereignty of Allah through jih¯ad (Ahmed 1987, p. 95). Mawdudi called his Islamic ideological state “theo-democracy” and characterized it as “the very antithesis of secular Western democracy.” It repudiated national sovereignty or sovereignty of the people, replacing it with “the sovereignty of God and vicegerency (Khilafat) of man” (Maududi 1960, pp. 147–48). This popular vicegerency, derived from the Qur’anic verse, “He will surely make you vicegerents/successors in ism and nationalism, usually claiming to be socialist, were the typical Third World ideologies. The Muslim world in addition produced a supranational Islamic ideology. www.annualreviews.org • Islamic Constitutionalism

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the land” (Q.24.54), according to Mawdudi means that “everyone is a caliph of God and an equal participant in this caliphate.” It “is the real foundation of democracy in Islam” where the ruler “is answerable to God on the one hand and on the other to his fellow ‘caliphs’ who have delegated their authority to him” (Maududi 1960, pp. 158–60). Mawdudi had written in his early writings about the Islamic revolution and considered jih¯ad as Islamic revolutionary struggle the means for achieving it. Later, however, he was a beneficiary of the rule of law and due process when his death sentence for instigating anti-Ahmadi agitation in 1954 was quashed and he was released from jail; he then reaffirmed his Islamic constitutionalism, without, however, giving up his novel idea of Islam as an ideology (Nasr 1996). In sharp contrast to the two constitutional revolutions of the first decade of the twentieth century in Iran and the Ottoman Empire (the Young Turks Revolution of 1908), the Islam that entered the constitutional debate in Pakistan was not an Islam embedded in the traditional political order under autocracy, but an abstraction set against the background of a century of the British Raj. Mawdudi (1960, pp. 226–27) thus turned not to any consideration of the institutions of the Mughal empire or of any other Muslim state, but rather to a juxtaposition of the Western constitutional blueprints, from which he extracted nine basic points, and the scriptural sources of Islam, in which he found answers to each point. The Pakistani constitutionmakers did the same on a few key issues, albeit implicitly. The result was the “comic” transfer of political sovereignty to God, first in the Objectives Resolution of 1949 and then in the 1956 Constitution (Rahman 1970, p. 277). Only in the absence of an actual Muslim sovereign monarch could the notion of national sovereignty evoke, in the minds of the Islamic ideologues such as Mawdudi, the superiority of God over the nation and result in the declaration of His sovereignty in the 1956 Constitution of the Islamic Republic of Pakistan, the first state to be so designated


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in history. The legal consequences became apparent in the Asma Jilani case in 1972, when the Supreme Court, drawing on Kelsen’s pure theory of law, considered the Objectives Resolution and the Almighty Allah’s “legal sovereignty over the entire universe” as the “Grundnorm” of the constitutional order in Pakistan (Choudhry 1988, pp. 7–12). With this confusion of theological and legal categories, ideological elements were grafted upon Pakistan’s liberal, Westminster constitutional model and grew to deform its character when the declaration of the sovereignty of God in the Objectives Resolution was finally made justiciable as Article 2-A of the restored Constitution of 1985, interestingly by President Muhammad Zia ul-Haq’s executive fiat. This development, and the Islamicization of the Pakistani state and judiciary by General Zia, a member of Mawdudi’s Jamaat-i Islami who came to power with a military coup in 1977, can thus be considered the “much-delayed outcome of the country’s foundation in 1947” (Taylor 1983, p. 181). At the time, when the Pakistani founding elite was not challenged in its cozy interpretation of Islam, Binder’s (1961) assertion that the Objectives Resolution, drafted by the secular Prime Minister Liaqat ‘Ali Khan, was a perfect compromise (because it satisfied everyone by declaring that sovereignty resided not only God but also in the people of Pakistan and in the state of Pakistan) seemed reasonable. As the subsequent history has shown, however, once that interpretation was challenged by the Islamic fundamentalists and by the ulema, God had no difficulty trumping the other putative sovereigns! There is much less justification, half a century later, for Feldman (2003, p. 57) to take the sovereignty of God as the connotation of the very word Islam and find the same divine sovereignty implicit in the American Declaration of Independence!2 This ignores the ideological character of the 2

Like the contemporary Iranian reformists Sorush and Kh¯atami considered below, Feldman puts forwards the idea


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notion and its confusion of legal and theological categories. The declaration of God’s sovereignty was in fact the cornerstone for the construction of an ideological constitution purporting to be based on the Qur’an and the Islamic shari‘a. This declaration ushered in a wave of ideological constitution-making in the Muslim world, with Islam increasingly as the basis of the constitution and the state, making current constitutional problems especially intractable. The debate on the idea of an ideological state based on Islam marked the late transfer of the age of ideology from the First and Second to the emerging Third World. The constitutional debates during the long making of the 1956 Constitution of the Islamic Republic of Pakistan are covered by Binder (1961) in Religion and Politics in Pakistan. The ideological character of this debate, which stimulated various and contradictory elaborations of the idea of sovereignty of God in relation to the popular will during the three decades following the foundation of the state of Pakistan, is clearly brought out by Ahmed (1987, pp. 18– 24, 202–4), who analyzes the function of this ideology in the framework of modernization theory. I have also argued that there was a curious convergence between the fundamentalism of Mawdudi and the “Orientalism” of Gibb (Said 1978) in this period, which stems from a shared textualism (Arjomand 1996). Gibb (1955) focused on a set of eleventh-century texts in political theory, giving little systematic attention to cultural and historical context, inferring that in Islam “[t]he community exists to bear witness to God amid the darkness of this world, and the function of its government is essentially to act as the executive of the Law [meaning the shari‘a]” (Gibb 1970, p. 11). This statement is typical of the period (Khadduri 1951). The historical pic-

that constitutionalism naturally reflects the religious beliefs of the society in which it takes shape, not allowing for any development of legal institutional structure independent of religion.

ture of the normative principles of government, however, bears no resemblance to this Islamic state that is a modern ideological construction or myth (Arjomand 2007a). The ancient Middle Eastern idea of justice as the core of political ethics and a basic norm of statecraft was integrated with Islamic concepts of governance in the medieval period, often conceived as a circle of justice encompassing the ruler and the ruled through the just organization of government and the army resulting in economic prosperity of the realm (Darling 2007). The function of government, conceived as monarchy, was the maintenance of this just order so that the subjects could attain salvation through the guidance and the shari‘a of the prophets as divine messengers (Arjomand 2007a). The convergence of Orientalism and fundamentalism finds a striking proof in the most cogent formulation of Islamic constitutionalism in Pakistan in this period: Principles of State and Government in Islam by Muhammad Asad (1961) (d. 1992), who, born Leopold Weiss in Austria and converted from Judaism to Islam in Saudi Arabia, can be considered an Orientalist and an Islamic fundamentalist in one. Asad had moved to India to become an editor of an academic journal, the Islamic Culture, and had been interned by the British in India as a citizen of Austria during World War II. He moved to Pakistan after the partition to become the director of the Government of Punjab’s Department of Islamic Reconstruction and publish an essay on “Islamic Constitution-Making” under its auspices in 1948, which was later revised as the book under discussion. The historic challenge to be met by the people of the new state of Pakistan, according to Asad (1961, p. 1), was to create an Islamic state by incorporating “the sociopolitical tenets of Islam . . . in the basic constitution of the country.” Just as for the Orientalist Gibb, for Asad the first guiding principle of the Islamic state is the following: “The foremost duty of such a state consists in enforcing the ordinances of the shari‘ah in the territories under its www.annualreviews.org • Islamic Constitutionalism

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jurisdiction” (Asad 1961, p. 34). This is because “the real source of all sovereignty is the will of God as manifested in the ordinances of the shari‘ah” (Asad 1961, p. 39). The implication is that, “if the government fulfills the requirements imposed by the shari‘ah, its claim to the allegiance of the citizens is absolute.” And further, “So long as the state conforms in its principles and methods to the demands of the shari‘ah, a Muslim citizen’s duty of obedience to the government is a religious obligation” (Asad 1961, pp. 69, 75). Each generation should undertake its own independent endeavor (ijtih¯ad) in law-finding and legislation in the area where there are no firm ordinances of the shari‘a, although it could also learn from the endeavors of the earlier generations of Muslims, and here political difference should be tolerated as they are a divine mercy. Within the framework, the fourth and lowest principle of the Islamic state is popular consent, embodied in the principle of consultation (shur¯a) and to be institutionalized as parliaments. This Islamic state need not correspond to any historical precedent (Asad 1961, p. 17)! And because it is an ideological state similar to the communist states, “as in Islam, an ideology is placed over and above the people’s freedom to legislate for themselves” (Asad 1961, p. 20). The qualification of the Republic of Pakistan as Islamic also created a serious constitutional problem, as had Israel’s as the Jewish state. The constitutional proposals by Mawdudi and Asad to treat religious minorities as “the protected people” (dhimmis) according to the shari‘a would have made nonsense of the constitutional guarantee of equality before the law. The Pakistani Constitutions of 1956 and 1962 categorically recognized the principle of equality before the law, but without eliminating legal pluralism completely.3 There were good


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reasons for considering the provisions of the shari‘a concerning the dhimmis inapplicable to the public law of Pakistan. Commenting on the first address of the founder of Pakistan to the Constituent Assembly on August 11, 1947, Chauduri Muhammad ‘Ali, who had served as prime minister in the 1950s, stressed the point that “Pakistan came into being not by conquest but as the result of a negotiated agreement between the representatives of the Hindu and Muslim communities,” and therefore the “life, property and religious beliefs” of all citizens were guaranteed full and equal protection by the state (cited in Rahman 1978, p. 169). A former chief justice of Pakistan, Rahman (1978, pp. 2–3) similarly stated that the relationship between the Muslim and non-Muslim citizens of Pakistan was a contractual one, and the provisions of the shari‘a concerning the dhimmis did not apply to the latter whose “position is assimilable to that of mu‘ahids—the beneficiaries of a binding pact.” President Zia ul-Haqq’s 1984 Ordinance No. XX, on un-Islamic activities, which lent considerable momentum to a series of laws that have become known as blasphemy laws, ignored these legal arguments, and these laws have been enforced by the Shariat benches (introduced in 1978) and the Federal Shariat Court (set up in May 1980). The constitutionality of Ordinance No. XX of April 26, 1984, especially notorious for making the Ahmadis liable to prosecution for engaging in activities associated with Islam, was confirmed by the Supreme Court of Pakistan in 1993 (Zaheeruddin v. State) (Arjomand 1996). The nonideological core idea of Islamic constitutionalism, namely the idea of shari‘a as a limitation to legislation, was embodied in the so-called “repugnancy clause”4 [Article 205 (1)] of the 1956 Constitution of Pakistan that stated that “no law shall be enacted which is repugnant to the Injunctions of Islam as laid down in the Holy Qur’an and the Sunnah,”

3

The Constitution of 1973 finally ended this element of pluralism in personal law for the Muslim citizens of Pakistan de jure (Rahman 1974, p. 40). This was reversed in General Zia’s Islamicization measures, however.

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The term comes from the British colonial policy of recognition of native, customary law so long as it was not “repugnant” to constitutional and statutory law.


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without, however, giving any organ the authority for constitutional review. It is interesting to note that the Pakistani ulema’s amendment, reiterated by Mawdudi, that added “and the Qur’an and Sunnah be the chief source of the law of the land” failed to carry (Maududi 1960, p. 367; Arjomand 1993b). Since 1980, the Federal Shariat Court, whose judges held office at the discretion of the president, has assumed jurisdiction over determination of the conformity of laws with the Qur’an and the Sunnah. The Shariah Bill of 1991 gave the judiciary power to interpret the shari‘a irrespective of constitutional and statutory law, thus exacerbating the chaos of legal pluralism and severely limiting the protection of constitutionally entrenched rights (Newberg 1995, p. 242). Moving beyond Pakistan, one must admit more generally that in the religiously designated states of the Middle East, the issue of equal protection of law for those citizens who do not wish their primary identity to be religious has not been worked out in constitutional theory or practice (Mallat 2007, ch. 3).

THE SHARI‘A IN CODIFICATION AND IDEOLOGY The short-lived Syrian Constitution of 1950 grafted a novel ideological element destined to become a staple in Islamic constitutionmaking by declaring the shari‘a the main source of legislation (Brown & Sherif 2004, p. 63, n. 19). The Kuwaiti Constitution of 1962 (its second) adopted much of the Ottoman Constitution of 1876, but it also followed the example of Syria and declared the principles of the shari‘a “a main source of legislation” (Article 2). Egypt eagerly followed this method of preemptive appropriation of fundamentalist ideological notions by Muslim authoritarian regimes and incorporated the phrase into Article 2 of its Constitution of 1971, thus adding Islam to the syncretic socialist-liberal-nationalist ideological foundations. In 1978, al-Azhar Islamic University in Cairo published a “Proposal for the

Islamic Constitution” whose Article 1(b) specified the shari‘a as the sources of all legislation (cited in An-Na’im 1990, p. 96). In 1980, the Egyptian government once more preemptively amended the same Article 2, changing “a” to “the” to read in translation “the principles of the Islamic shari‘a are the chief source of legislation”5 (Brown 2002, pp. 30, 56, 82– 84). The gambit was followed by one country after another, and by 2000, constitutions of some 24 Muslim states had declared the shari‘a (or its principles) “a” or “the” source of legislation.6 And the new millennium opened with the stampede of the 12 northern federal states of Nigeria declaring shari‘a the state law. The turning of shari‘a from a source of legislation into a slogan was the consequence of the spread of politicized Islamic fundamentalism generally referred to as political Islam or Islamism. It was built on the myth of the Islamic state whose primary function is the execution of the shari‘a—whatever the meaning of execution with respect to a law without codes that Weber called a jurists’ law and that includes rules for acts of worship, ritual, diet, and cleanliness. It seemed oblivious to the undeniable historical fact that, with the exception of Turkey after the adoption of the Swiss family law, the shari‘a is a major source of the most important acts of legislation, namely the Civil Code of Iran, which was enacted in 1928 and 1935, and that of Egypt, which was enacted in 1948 and served as the model for those of many other Arab countries. During the decade just preceding the drafting of the Ottoman Constitution, 1869–1876, 16 books of the Mecelle—or, to give its full title, the Books of Judicial 5

The word for legislation itself is derived from shari‘a in Arabic, unlike the Persian word that stems from q¯anun, so the Arabic text reads: mab¯adi al-shari‘a al-islamiyya almasdar al-ra’si li’l-tashri’.

6 Meanwhile, shari‘a began to trump positive law sporadically. In November 1983, for instance, the Supreme Federal Court of the United Arab Emirates decided in a case of drunkenness that the shari‘a is the supreme law of the federation and therefore its penalty should be applied over and above that prescribed by a 1976 law of the Emirate of Abu Dhabi (Mallat 2007, ch. 4).

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Enactments (ahk¯am ‘adliyya)—had created the first shari‘a-based modern code of law and set the pattern for all future codifications of the shari‘a. Muhammad Qadri Pasha published a similar civil code in Egypt in the last years of the nineteenth century, which was taken to have demonstrated the “translatability of the Islamic jurisprudence into legislation” (q¯abiliyat al-fiqh al-isl¯ami li’l-taqnin). In the meantime, the famous movement for Islamic reform (isl¯ah) had been launched (Kerr 1966). Its leader, Muhammad ‘Abduh (d. 1905), the chief mufti of Egypt, endorsed the methodology (taught in the school for the training of judges established by Sa’d Zaghlul in 1907) of selecting among the opinions of the jurists of the four schools (Botiveau 1993, pp. 265– 66). ‘Abduh’s successor, Muhammad Rashid Rid¯a (d. 1935), stated that the recovery of the pristine Islam of the pious ancestors (salaf ) was the goal of the reform movement, which was thus increasingly called Salafi. He also interpreted the concept of maslaha, a previously somewhat marginal category in Islamic jurisprudence, as public interest and made it the guiding political and policy principle in Islamic reform. The legal methodology of ‘Abduh’s followers in Egypt was the same as that of the Ottoman Mecelle, except that it was not restricted to the opinions of the Hanafi schools but was expanded to include all the four orthodox schools. Meanwhile, during the second constitutional period, the codification of those areas of the shari‘a was resumed, with its methodology expanded beyond the jurisprudence of the Hanafi school to include European secular law as well as Jewish and Christian religious laws. The result was the Ottoman Family Law of 1917 (Berkes 1964, p. 417). Although the Ottoman Family Law of 1917 remained in force in some of the Arab provinces after the disintegration of the empire, in Turkey itself it was replaced, in February 1926, by a new civil code based on the Swiss Civil Code of 1912. The Egyptian family law of 1929 (Règlement des Mehkemehs Nr. 25) followed this method. It was followed in 1931 by the Règlement des


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Mehkemehs Nr. 78 that greatly restricted the shar‘i rules of process and evidence, while giving primary importance to documentary and circumstantial evidence (Schacht 1932, pp. 231–33). The process culminated in the construction of the Egyptian Civil Code of 1948 under the direction of ‘Abd al-Razz¯aq Ahmad al-Sanhuri (d. 1971) (Hill 1987). With a curious combination of Islamist sentimentalism and postmodern despair, Hallaq (2004) disparages this major legal achievement of a generation of Muslim jurists of the era of liberal constitutionalism by juxtaposing it to his idealized version of a perfect, traditional, Islamic legal system, only to arrive at the conclusion that it is impossible to restore the shari‘a as the basis of the legal system of a modern nation-state. I reached the same conclusion by simply examining the attempt at such restoration in the Islamic Republic of Iran (Arjomand 2007b), without the nostalgia for the imagined Islamic legal tradition and without ridiculing the highly successful codification of important legal sections of the Shi‘ite shari‘a by Iranian clerical jurists who saw their effort as the consolidation of the constitutionalist achievements of the 1906– 1911 period (Arjomand 2007a). The pathos of the situation consists not in the impossibility of restoration of the shari‘a, as Hallaq implies, but in the willful amnesia of the earlier generation’s reasonable solution of the problem of the place of Islam and Islamic law in a modern constitutional order and the consequent Islamist urge to reinvent the wheel.7 In contrast to this blindness, the great merit

7

Article 1 of the Egyptian Civil Code provides for residual resort to Islamic jurisprudence in the absence of a statutory provision or an applicable custom. Afghanistan under monarchy followed a similar method of codification based on Islamic jurisprudence in Iran and Egypt, and its Constitution of 1964 (Article 69) allowed residual resort to Hanafi jurisprudence in the absence of statutory law. The corresponding article in the 2004 Constitution of the Islamic Republic of Afghanistan confirms this (Article 130), while the subsequent Article 131 recognizes similar residual use of Shi‘ite jurisprudence. Strange as it may seem, the position of the Shi‘ite jurisprudence in the theocratic Islamic Republic of Iran is no different (Arjomand 2007b).


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of the Egyptian constitutionalist writings of the 1990s, as we shall see, is to acknowledge this great synthetic effort in legal modernization as what T¯ariq al-Bishri (1996, pp. 47– 49) terms “independence in law-making” (al-istiql¯al al-tashri‘i), accepting Sanhuri’s extensive legal borrowing from European sources as “Egyptianization” (tamsir). Be that as it may, the Islamic revolution of 1979 in Iran happened at the end of the era of ideological constitutions outside of the Middle East—an era that had begun with the Mexican Constitution of 1917 and the Soviet Constitution of 1918. The neologism of “Islamic government” (hokumat-e esl¯ami) had been the key slogan of Ayatollah Ruhall¯ah Khomeini’s revolutionary movement, and he ordered its translation into constitutional law after the overthrow of monarchy [as far as I know, the source of the neologism is Mawdudi’s h¯akimiyya[t], via the Arabic translation (Arjomand 2000, pp. 301–32)]. Islam was simply put in the place of the dominant ideology and was explicitly referred to as such in the constitutional documents and in the Preamble to the Fundamental Law of 1979. The shari‘a thus came back with a vengeance and swallowed the modernized state and its constitution. An appendix consisting of a number of traditions (hadiths) pertaining to its most important articles demonstrates that the 1979 Constitution of the Islamic Republic of Iran is partially derived from the shari‘a; its Article 4 declares all laws found inconsistent with the shari‘a null and void, including the constitution itself. The critical function of nullification of all proposed and existing laws found inconsistent with the shari‘a is given to the six clerical jurists of the Council of Guardians. The Council of Guardians, it should be noted, was a modification of the committee of five mojtaheds, provided for in the Supplement to the Fundamental Law of 1907 in response to the demands of the Islamic constitutionalists but never implemented (Arjomand 1993a). It corresponded to the proposal for a “supreme tribunal” to act as “the guardian of the constitution” with

veto power over legislation proposed by Asad (1961, pp. 66–67), who quite probably knew about the 1907 committee (Asad’s proposal, however, extended the tribunal’s veto power to administrative acts as well). It is interesting to note that the clerical elite of the new Islamic regime found very little indeed in the civil and other codes of the 1930s un-Islamic and in need of changing and could only fulfill their ideological commitment by enacting the penal code of the shari‘a that had historically been in abeyance in Iran as in most of the rest of the Islamic world. Here as elsewhere, the punitive urge behind the outcry for the imposition of the shari‘a was the execution of its atavistic and cruel hudud punishments, most notably the stoning of women for adultery.

SHI‘ITE CONSTITUTIONALISM AND ITS POSTIDEOLOGICAL TRANSFORMATION Khomeini had been living in exile in Iraq for well over a decade before his triumphal return to Iran on the crest of the Islamic revolutionary wave. Despite Saddam Hossein’s fierce repression, the Najaf Khomeini left in 1978 had been the center of a movement for Islamic renewal, and especially the renewal of Islamic law that Mallat (1993) has aptly termed the “Shi‘i international.” The methodology of the movement for Islamic reform relied on the category of maslaha that had been marginal in traditional Islamic jurisprudence but was now made central as “public interest” in the constitutional field (Kerr 1966). It has been severely criticized (Hallaq 1997, ch. 6) and had no constitutional impact, although the reformist syncretic legal methodology, as was pointed out, did influence the codification of Middle Eastern law. The Shi‘ite reform movement in the 1960s and 1970s, by contrast, made two previously underdeveloped areas of Islamic jurisprudence the core of its renewal of Shi‘ite law: “the constitutional part of public law, and the large field opened up by modern economics: labor law, land www.annualreviews.org • Islamic Constitutionalism

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law . . . and banking” (Mallat 1993, p. 4). As a consequence, Islamic law suddenly gained ground “in disciplines which had seemed only a few decades ago beyond the pale: constitution, economics and banking” (Mallat 1993, p. 189). The chief architect of this renewal of Shi‘ite law was Mohammad Baqer as-Sadr, who was executed with his sister by Saddam’s order in April 1980. Sadr’s first major work, Falsafatun¯a (Our Philosophy), had been written in 1959 in reaction to the growing appeal of communism among disenfranchised Iraqi Shi‘a, and in his endeavor to modernize the Islamic legal tradition Sadr took on Marxism as the most seductive rival ideological system. He thus swallowed the Marxist esprit de système and the Marxist notion of ideology, just as Mawdudi had done, and his modernized Islamic system unsuspectedly was conditioned by its antithesis. This is clear in Sadr’s economics, expounded in Iqtis¯adun¯a (Our Economics), where he seeks the principles of the Islamic economic system in point-by-point contrast to capitalism and socialism conceived as systems. This approach enables Sadr to include a good deal of derivative materials, for instance on social security, while requiring the introduction of novel categories and a few neologisms. Although Sadr proposes an interesting Lockean-like justification of private property as the fruit of labor, and a sharp distinction between worked land and dead land, public ownership tends to occupy the predominant position in his economics, and with it goes a dirigiste attitude toward exploitation of natural resources and implementation of largescale economic projects for the benefit of the entire society. Similarly, in his writings on Islamic interest-free banking, Sadr displays a clearly dirigiste attitude toward state control of banking, while typically replacing the forbidden category of usury (rib¯a) with modified uses of other permissible categories of Islamic law. In Sadr’s political theory, the unsuspected conditioning by the Marxist antithesis is notable in his characterization of the traditional


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Shi‘ite marja‘iyya(t) (authoritative source of imitation) as “ideological leadership,” and of the jurist holding this position as “the supreme representative of the Islamic ideology” (cited in Mallat 1993, p. 66). This marks a break with his early writing by placing a specifically Shi‘ite institution, the highest rank in the hierocracy, at the center of the Islamic political system. The search for the principles of this Islamic political system prompted Sadr to embark on an endeavor to develop Islamic constitutional law toward the end of his life, an endeavor that assumed historical significance with the Islamic revolution in Iran. In Iqtis¯adun¯a, Sadr had conceived of a discretionary area subject to the (legislative) authority of the ruler, stating that Islam allowed the wali al-amr (an undefined term Mallat reasonably translates as the ruler) to exercise ijtih¯ad according to the needs and interests of society (Mallat 1993, p. 119). In 1976, in a novel division of the rules of the shari‘a into four categories, Sadr offered as the last of these the category of rules pertaining to public conduct, which covers the conduct of the wali al-amr according to the principles of the wil¯ayat al-‘¯amma (general mandate) (Mallat 1993, p. 14). Sadr deftly avoids the thorny discussion of the referent of the term wali al-amr (the person invested with authority); we are left to guess whether the wali al-amr is the ruler (sult¯an) of the medieval jurists or Khomeini’s theocratic faqih. In a note proposing a constitution for an Islamic republic in Iran, written a week before the final collapse of the monarchy, he put the general vicegerency (al-niy¯abat al-‘¯amma) that pertains to the supreme jurist (al-mujtahid almutlaq) in place of the wil¯ayat al-‘¯amma as the mandate to rule, and the supreme jurist as marja‘ in place of the ruler (wali al-amr) of his earlier writings, thus offering a legal formulation of the wil¯ayat al-faqih as the Mandate of the Jurist (to rule) (Mallat 1993, pp. 70– 71). Sadr’s formulation was much more precise than the vague statement put forward by Khomeini a decade earlier in his lectures on the Mandate of the Jurist. The term (wali-ye


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amr) is in fact used in the section embodying the Mandate of the Jurist in the 1979 Constitution, although the official designation of the supreme jurist is the leader of the Islamic Republic of Iran. In the 1990s, after the death of Khomeini, however, new constitutionalist writings in Iran took a firmly anti-ideological turn in their opposition to the theocratic regime whose chief organ of constitutional review became overburdened with an unexpected function of political control (mainly by using its power of supervising elections to disqualify candidates) and failed to generate any constitutional jurisprudence. In daring attempts to find an alternative to the official theocracy enshrined in the Constitution of the Islamic Republic of Iran, a number of dissident clerics have been striving for a different kind of constitutional democracy consistent with the shari‘a. Politically the most consequential of these was the radical modification of the Mandate of the Jurist into a purely supervisory one by one of its chief architects in the Assembly of Experts, Ayatollah Hasan-‘Ali Montazeri, Khomeini’s successordesignate until 1988, who had published a treatise on Islamic jurisprudence justifying the Mandate of the Jurist (Montazeri 1988). The young jurist who followed Montazeri’s hint and developed a full-fledged critique of Khomeini’s constitutionally enshrined theory of Mandate of the Jurist was one of his students, Hojjat al-Islam Mohsen Kadivar. This critique unfolded in two stages. The first was implicit and consisted of the relativization of Khomeini’s theory by presenting it as one among many recognized Shi‘ite views of the state. Kadivar’s (1997) Nazariya-ha-ye dawlat dar f iqh-e Shi‘a (Theses on the state in Shi‘ite jurisprudence) takes this step and is valuable for its departure from the official position that Khomeini’s thesis was the Shi‘ite view of government. Although dutifully tracing its genealogy, Kadivar separates Khomeini’s earlier and later views on theocratic government into two theses and puts them alongside seven other theses

that were presented as equally plausible. Khomeini’s earlier view, incorporated into the Fundamental Law of 1979, was characterized as “the general appointive mandate of the collectivity of jurists,” and the later view, acknowledged in the Amended Fundamental Law of 1989, as the “absolute appointive mandate of the jurists” (vel¯ayat-ei motlaqa-ye faqih¯an). Kadivar (1997, p. 80) points out that the difference between the two positions is relatively minor and consists of the extent of governmental authority. The latter thesis gives the supreme jurist absolute authority by making his ordinances, which are referred to as governmental ordinances (singular, hokm-e hokumati), superior to those of the shari‘a. The orders of the supreme jurists, according to this thesis, must not only be obeyed as a religious duty but also prevail, in cases of contradiction, upon the state law and the sacred law alike (Kadivar 1997, pp. 108–9). Kadivar intermittently points out (1997, pp. 18, 36–37, 78–79) that the idea of theocratic government was rejected by some prominent jurists from Shaykh Murtaz¯a Ans¯ari (d. 1864) to the present. Rather than taking the Mandate of the Jurist as a constitutionalized principle, Kadivar simply discusses both its weaker and stronger versions as Khomeini’s juristic theses alongside seven others presented as equally authoritative. Historically, the most significant of these is the legitimation of monarchy in what I have called the theory of the two powers. Kadivar presents this view as the first Shi‘ite thesis on government and supports it by citations from the seventeenth and eighteenth centuries as well as the early constitutional periods. The second historically significant thesis is N¯a’ini’s abovementioned justification of constitutional government in 1909. The remaining theses belong to the era of the Islamic Republic of Iran but diverge from its official constitutional interpretation. The later view of Sayyed Mohammad Baqer al-Sadr (d. 1980) is typified as “Caliphate of the people with the supervision of the ‘sources of imitation’” (khel¯afat-e mardum ba nez¯arat-e www.annualreviews.org • Islamic Constitutionalism

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marja‘iyyat), while his earlier views, alongside those of the Lebanese jurists, Shaykh Muhammad Javad Mughnia and Shaykh Muhammad Mahdi Shams al-Din, are presented as the thesis on “elective Islamic government.” Coming close to this view, according to Kadivar, is the theory of Mahdi H¯a’iri-Yazdi, presented in Hekmat va hokumat (Wisdom and government, published in 1995), which assimilates parliamentary representation to grant of power of attorney by the people as the joint owners of the country and constitutes Kadivar’s thesis on “representation through deputation by joint property-owners” (vel¯ayat-e malek¯ane shakhsi-ye mosh¯a’)! Last but not least, we have the thesis on the “elective and conditional mandate of the jurists,” which represents the views of Ayatollah Montazeri and of Shaykh Ne‘matoll¯ah S¯alehi-Najaf¯ab¯adi. This class of contemporary Islamic constitutionalist writings represents modernist attempts to create various legal fictions, drawn from Shi‘ite jurisprudence, for the justification of a modern Islamic constitutional state. S¯alehiNajaf¯ab¯adi attempts to reconcile sovereignty of God with representative government in a subordinate position through the idea of an Islamic social contract. Though perhaps more liberal, they have been weaker than Mawdudi’s theo-democracy and Asad’s Islamic state in their derivation of constitutional principles from Islam (Akhavi 2007). H¯a’iri-Yazdi comes a little closer to Western social contract theories on the basis of the implicit recognition of the natural law in the Qur’an, buttressed by ad hoc reinterpretation or extension of categories of joint ownership and legal representation in Islamic jurisprudence. Though recognizably Islamic, it is not deemed convincing in the derivation of the social contract from Islam (Akhavi 2007). Kadivar (1998) took the second and final step a year later with the publication of Hokumat-e vel¯a’i (Mandate-based government), or government based on the “absolute appointive mandate of the jurists.” He now offered an explicit critique of Khomeini’s theory


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and a refutation of the legal arguments for the validity of the official doctrine of theocratic government (Kadivar 1998, p. 13). The book consists of two roughly equal parts; the first traces the progressive extension of the authority of the jurists from judiciary competence to the right to rule, and from authority over special categories of persons such as the insane and orphans, as specified by the hisba rules of the shari‘a, to authority over the people in general (Kadivar 1998, pp. 102–3, 124, 132– 33). This is followed by an interesting account of the politics of the incorporation of the theory into the Fundamental Law of 1979. The second part of the book is the painstaking, and often abstruse, refutation of the “traditional” and “rational” bases of the official doctrine in terms of traditional Shi‘ite jurisprudence. Kadivar’s theory remains strictly within the bounds of Shi‘ite jurisprudence and offers no hermeneutic questioning of the Shi‘ite jurisprudence itself as a historically contingent discipline (the clerical establishment felt threatened by Kadivar and sentenced him to 18 months in prison by the Special Court for Clerics in April 1999). The most radical epistemic break with Khomeini’s theocratic theory, however, was put forward in a series of lectures and articles that were later published as two books by Mojtahed-Shabestari, a Shi‘ite cleric who had been the director of the Islamic Center in Hamburg and had been elected to the first Islamic Majles in 1980. Undermining the premises of the constitution and official ideology of the Islamic Republic of Iran, MojtahedShabestari (1996, pp. 46–66) forcefully argues that no political regime was founded on the basis of the science of Islamic jurisprudence in the past or can be so founded in the future. Rather, the science of jurisprudence can only offer answers to certain questions that arise within the institutional framework of existing political regimes. Furthermore, MojtahedShabestari (2000, p. 12) explicitly refutes the two cardinal tenets of the official clericalist reading of Islam, namely that “Islam as a religion has political, economic and legal


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regimes based on the science of jurisprudence” suitable for all ages and that “the function of government among the Muslims is the execution of the commandments of Islam.” Mojtahed-Shabestari’s ideas were very influential in the reform movement under President Mohammad Kh¯atami (1997–2005), who propounded the idea of religious democracy together with the leading reformist intellectual, ‘Abdol-Karim Sorush. Sorush had denounced the characterization of Islam as an ideology in the 1990s and moved on to argue that Islam was essentially secular and consistent with democratic forms of government that a fortiori are also secular. However, as democracy is majoritarian and the majority of Iranians are religious, for Sorush as for Kh¯atami, democracy in Iran would naturally assume the form of a religious democracy. Sorush (2000a, pp. 215, 220) juxtaposed this underspecified idea of religious democracy with the view of the ruling clerical elite as “the fascist reading of religion” and spoke of them as the “bearers of religious despotism,” affirming that “the new generation that has now arisen in Iran does not see the jewel of religion in jurisprudence and ideology.” Last but not least, in a major departure from his earlier purely instrumental, managerial view of democracy as a rational method of management of society, Sorush (2000a, pp. 376–77) now offers a normative definition of democracy as resting on three pillars: rationality, pluralism, and human rights.

ISLAMIC CONSTITUTIONALISM IN EGYPT AND POSTIDEOLOGICAL CONSTITUTION-MAKING IN SUNNI ISLAM Turning to (Sunni) Islamic constitutionalism in the Arab Middle East, we find it inseparable from the organizational and ideological evolution of the Muslim Brotherhood, founded by Hasan al-Bann¯a’ in Egypt in 1928

to translate the Salafi idea of Islamic reform into a modern sociopolitical movement. It established branches in all major Arab countries, and its offshoots have come to power in the Sudan and Palestine (the present HAMAS government), shared power in the Jordanian government, and constitute the official opposition in Kuwait, although the main branch was outlawed in Egypt itself in 1954 and has remained officially unrecognized despite forming the largest opposition bloc in the present parliament. The fascist and communist ideological influences on the Muslim Brothers in the 1930s and 1940s must have been considerable and were especially reflected in its secret armed organization for revolutionary takeover. Voll (1991) claims that even in this period the Muslim Brothers were influenced by the prevalent liberal constitutionalism. Even if so, an Islamic revolutionary ideology was cogently formulated in prison by Sayyid Qutb in response to repression by President Nasser (Haddad 1980). Qutb was executed in 1966, but his ideology spread clandestinely to become the dominant ideology in the Muslim Brotherhood in the 1960s (Ramadan 1993). The Muslim Brotherhood’s turn to Islamic constitutionalism must be dated from the composition in 1969 of Du¯at la qud¯at (Missionaries not judges) by the movement’s imprisoned leaders, which was not published until 1977. They sought to distance themselves from Qutb’s position. There was an Islamic constitutionalist trend, inspired or directly expressed by the Muslim Brothers in the 1950s and 1960s, but there is little to distinguish it from Mawdudi’s idea of the Islamic state in Pakistan. Mawdudi’s works were in fact translated into Arabic and influenced Qutb and others. In one of the earliest usages of the term fiqh al-dusturi [constitutional (Islamic) jurisprudence] in 1962, Ahmad Kam¯al Abu’lMajd compared the shari‘a to natural law in the American constitutional tradition and inferred the need for creation of independent judicial institutions to constrain the legislative branch of the state and assure the conformity www.annualreviews.org • Islamic Constitutionalism

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of its laws with the principles of the shari‘a8 (Rutherford 2006, pp. 712–14). Abu’l-Majd, however, set the trend in Islamic constitutionalism that developed fully in the 1990s, representing a postideological return to Abu Diy¯af ’s nineteenth-century idea of the shari‘a as a constraint and limitation on government. If the ruler violates the shari‘a, the citizens can disobey his orders and even remove him from office under certain conditions (Rutherford 2006, p. 712). Although the appearance of Du¯at la qud¯at in 1977 indicated the will to political accommodation with the authoritarian state, the true epistemic break with ideology came with the abandonment of the idea of the Islamic state for democracy by a group of writers and publicists who have been described as “Islamic liberals” (Binder 1988) and “New Islamists” (Baker 2003). The acceptance of political pluralism and a multiparty system, in short, of democracy by the postideological Islamic constitutionalists as “the form of government that is closest to Islam” (Yusuf al-Qarad¯awi as cited in Rutherford 2006, p. 716) means abandoning the utopia of the Islamic state executing the Law of God and guarding a total ideology based on the Qur’an and the Sunna. Furthermore, the idea of the shari‘a as a constitutional limitation on legislation is often softened by considering it as the reference point (marja‘) rather than the source of law. The Sunni idea of social contract is made easier by the absence of institutionalized clericalism comparable to Shi‘ite Islam, and like Mawdudi, the Egyptian Islamic constitutionalists rest it on the human beings’ collective caliphate or vicegerency of God (Akhavi 2003, pp. 41, 43). The reductionism and conflation that marred the early twentieth century and to a lesser extent the postideological Shi‘ite constitutionalism in Iran are not entirely absent from the new Egyptian


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This requirement is consistent with Asad’s proposal for an organ of judicial review in the Islamic state in Pakistan at the same time and with the Council of Guardians set up in the Islamic Republic of Iran two decades later.

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attempts to formulate a theory of Islamic social contract. In al-Isl¯am wa’l-dimqr¯atiyya (Islam and democracy, published in 1993), Fahmi Huwaydi, for instance, claims that Islamic and Western political thought share the concept of political pact (‘aqd siy¯asi) between the community and the ruler, that human rights are guaranteed by God in Islam and by man in the West, and that the idea of consensus (ijm¯a’) in Islamic jurisprudence anticipates Rousseau’s general will by centuries (cited in Akhavi 2003, p. 42). Reductionism and conflation are minimized, however, by acknowledging that Islamic religion does not require any distinctive form of government and by the consequent recognition of the heterogeneity of Islam and democracy. On the illiberal side, the Egyptian Islamic constitutionalists share the idea that the constitutional democratic state should enjoin good and forbid evil. It is thus an intrusive state obliged to create pious citizens by using schools and courts (Rutherford 2006). The acceptance of democracy and rejection of the conception of Islam as a total ideology are shared features of postideological Islamic constitutionalism in Iran and Egypt. Egyptian Islamic constitutionalism has two remarkable additional features. First, it has a stronger legalistic dimension that rests on the endorsement of the early twentieth-century Islamic reform movement and the codification of the Egyptian law inspired by it (Bishri 1996). In other words, it returns to the preideological Islamic constitutionalist idea of government limited by law—this time, a law inclusive of certain principles and substantive norms of the shari‘a but extending far beyond it to include democratic constitutional law. Second, in this legal dimension, Qur’anic and Sunnah textualism, which implies the immutable eternity of the shari‘a as the divine law, is severely restricted and replaced, at least in the writings of its leading figure T¯ariq al-Bishri, by a historical perspective with a pioneering sketch of the Islamic legal system. This distinctive legal realism is not accidental but deeply rooted in contemporary Egyptian


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constitutional politics. Not only is Tariq al-Bishri a high ranking judge who narrowly missed the presidency of the Egyptian Council of State (majlis al-dawlah) because of his political views, but Islamic constitutionalism has been fully endorsed in the political program of the Muslim Brothers in 2004 and 2005. This development can in turn be partly attributed to the expansion of judicial power under the Egyptian authoritarian regime and to the assertiveness of the Supreme Constitutional Court (SCC) of Egypt as well as the Council of State. When the age of ideology spread from Europe to the Middle East, a number of ideological constitutions appeared with it—most notably the Turkish constitutional amendment of 1928, the Egyptian Constitution of 1971, and the 1979 Constitution of the Islamic Republic of Iran. Furthermore, with the global transplantation of legal institutions, constitutional courts were set up in Egypt in 1979 and Turkey in 1961 (reorganized in 1982), whereas the Iranian Constitution of 1979 set up a Council of Guardians modeled on the French Conseil Constitutionnel, with more extensive powers. A recent study by Shambayati (2007) uncovers a surprising similarity in the judicial politics of Turkey and Iran, where the organs of constitutional review have acted as the institutional mechanism for protecting the opposite ideological foundations of the respective regimes, Kemalism and Islam. The surprising convergence in two regimes with opposite ideological foundations invites a comparison with the SCC of Egypt in interpreting Egypt’s equally ideological Constitution of 1971, and especially its notable jurisprudence of the above-mentioned amended Article 2 of the Egyptian Constitution and its ideological declaration that “the principles of the Islamic shari‘a are the chief source of legislation.” The damage control from this preemptive and seemingly unnecessary declaration was left to the new but assertive SCC. Having refused to hear a large number of cases demanding unconstitutionality of laws according to

Article 2 between 1987 and 1991, in its landmark ruling of May 15, 1993, the SCC basically invested the state with the right to determine compatibility of laws with the shari‘a. The most important part of this ruling, however, was declaring Article 2 nonretroactive and thus preserving the major achievement of the preideological age, namely the Egyptian Civil Code, and making it immune to the Islamist onslaught (Mallat 2007, ch. 4). In sharp contrast to the Iranian Council of Guardians, which soon degenerated into the gatekeeper of entry for elected offices, stopped giving reasons for its legislative vetoes, and thus developed no Islamic constitutional jurisprudence, the constitutional jurisprudence of the Egyptian SCC has been remarkable. In procedural and formal terms, its constitutional interpretation of Article 2 over the first two decades of its existence amounted to a consistent jurisprudence resting on three principles: the coherence of the Constitution of 1971 as a “unified organic unit” of which Article 2 was one element, the nonretroactivity of Article 2’s requirement of adherence to the shari‘a by the legislature, and lastly a distinction between the definite and the indefinite norms of the shari‘a to be determined by the SCC justices themselves (Brown & Sherif 2004, p. 68). Furthermore, the SCC sought to institutionalize the principle of public interest (maslaha) by arguing that the indefinite norms of the shari‘a can be left to the discretionary power of the ruler through ijtih¯ad. “If the ruler misuses this power or selects an ijtih¯ad that is not consistent with the public interest . . . , his legislation becomes a violation with Islamic shari‘a” (Brown & Sherif 2004, p. 74). The Egyptian SCC’s Article 2 jurisprudence thus required it to “be understood in the context of other commandments enshrined in the constitution” and thus represents the “peaceful integration of Islamic principles in the constitutional order” (Brown & Sherif 2004, p. 75). On the substantive impact of Islamism on the decisions of the Egyptian SCC, however, the scholarly opinion is divided. Botiveau (1993) and Brown (1997a; 2002, pp. 180–84), www.annualreviews.org • Islamic Constitutionalism

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basing their sanguine opinions mainly on the earlier decisions of the SCC, argue that the SCC tends to meet the Article 2 challenges to laws by upholding them on the grounds of the discretionary power of the state. Lombardi (1998–1999) and especially Vogel (1999), on the other hand, present a more disturbing picture. It appears from these accounts together that, although Egypt’s SCC at first responded vigorously to the major change in the international politico-legal culture by largely demolishing the socialist ideological foundation of Egypt’s constitution and by moderating authoritarian statism, it has more recently been increasingly responsive to the popular pressure and has tended to bring to life the Islamic ideological principles of their syncretic constitution to trump civil rights and women’s rights. Comparing the Egyptian and Iranian organs of constitutional review, we can say that, whereas the Iranian Council of Guardians is primarily the guardian of the shari‘a against the constitution as well as legislation, the Egyptian SCC is primarily the guardian of the constitution. The Egyptian Constitution of 1971 recognizes no guardian for the shari‘a. Indeed, for a quarter of a century, the Egyptian SCC has considered Article 2 as primarily addressed to the legislature or the ruler (Brown 2002, p. 183). As the Islamist pressure mounted in the 1990s, however, it has also come to consider itself the interpreter of the “principles of the Islamic shari‘a” to the horror of its official guardians—the ulema of alAzhar. In what may turn out to be a historical turning point for Islamic constitutionalism in Egypt, in December 2005 the Muslim Brotherhood recognized the exclusive competence of the SCC to determine the constitutionality of all laws, including their conformity with Article 2 (Rutherford 2006, p. 722) The global expansion of judicial power reached Egypt in the last quarter of the twentieth century, creating an important political space in Egypt’s authoritarian regime for oppositional “legal mobilization” (ElGhobashy 2006). The Supreme Court was


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transformed into the SCC of Egypt with a self-appointive bench in 1979, and the Council of State at the apex of Egypt’s administrative courts was granted similar self-appointive independence in 1984 (Hill 1993). Perhaps the most eloquent testimony to the empowerment of judges, citizens, and human rights nongovernmental organizations (NGOs) in Egypt through this legal mobilization is the sharp rise in the recourse to administrative courts (El-Ghobashy 2006, pp. 103–4) and the SCC (Moustafa 2003, p. 884). Legal mobilization through resort to courts and by capitalizing on Egypt’s international human rights obligations indeed appears as “an alternative path to democratization” (El-Ghobashy 2006, p. 153). Meanwhile, there was a generation turnover in the Muslim Brotherhood in the 1990s that was definitively marked by the death of the octogenarian general guide, Ma’mun al-Hudaybi in 2004 (El-Ghobashy 2005). Against the background of rising tension between the SCC and the authoritarian state over the formation of political parties, the electoral law, and especially the judicial supervision of the elections of 2000 and 2005, the Association of Judges was advocating a plan for increasing judicial independence and reform of democracy (Bishri 2006, pp. 91–96). In April and May 2005, Egypt’s authoritarian government attempted to roll back the two-decade expansion of judicial power into politics. The government passed a law that restricted the activities of NGOs and transferred authority over them from the judiciary to the Ministry of Social Affairs (Elkhalil 2006, p. 602). The imprisonment of the opposition’s presidential candidate and the disciplining of two senior judges who had publicly charged electoral fraud provoked a major confrontation between the government and the judges, backed by the main opposition, the Muslim Brotherhood, and by massive demonstrations in the streets of Cairo in favor of judiciary independence that were suppressed heavy-handedly. The Muslim Brotherhood, which includes some


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prominent judges among its members and won 88 seats in the People’s Assembly in 2005 despite widespread electoral fraud, assumed the championship of constitutionalist contention by protesting against the state of emergency law and pressing for constitutional reform according to their 2005 electoral platform. At the time of this writing (March 2007), President Mubarak struck back by rushing through the People’s Assembly and an immediate referendum a set of 34 illiberal constitutional amendments that not only replaced the state of emergency law in effect since 1981 by the constitutionally retrenched suspension of civil rights (Article 179), but also removed the judicial oversight of the elections, which was given to a state-appointed elections commission (Article 88). The key feature of the Egyptian Islamic constitutionalism is the inclusion of other constitutional principles beside those of the shari‘a to determine the constitutionality of laws and the acceptance of the extension of the shari‘a in modern legal codes. This key feature was fully anticipated in the felicitous and liberal formulation of the repugnancy clause in Article 64 of the Afghan Constitution of 1964 [“No laws can be in contradiction (mun¯aqez) to the principles of the sacred religion of Islam and the other values contained in this Constitution”], which I had hoped would be retained and reinforced by a modern constitutional court competent to reconcile the principles of Islam and other constitutional principles within a unified and coherent framework (Arjomand 2003). The formula survived into the published draft constitution put before the Constituent Loya Jirga but was unfortunately changed behind the scenes and without public discussion and does not appear in the constitution promulgated in January 2004.9 The 2005 Constitution of the

9

Because of its religious pluralism, Iraq offered an opportunity, under ideal circumstances, for the liberal updating of N¯a’ini’s Shi‘ite constitutionalism of 1909, which is presumably acceptable to Ayatollah ‘Ali al-Sist¯ani.

predominantly Shi‘ite Iraq also significantly broadens the repugnancy clause, requiring in its Article 2 that no laws can contradict (a) the undisputed ordinances of Islam, (b) principles of democracy, or (c) basic rights and freedoms. Unfortunately, however, the breakneck speed imposed upon the constitution-making process by the American occupying power, among other factors, prevented a spelling out and institutional translation of this formulation in an otherwise deliberately vague and unsatisfactory constitutional document. I must briefly mention at least two other instances of nonideological constitutionmaking to indicate the range of variation in constitutionalism in the Muslim world. Whereas the Ottoman Sultanate was abolished in 1924, traditional monarchy in Morocco survived French colonialism and into the present. The late King Hasan II (r. 1961–1999), who had been trained in law, had a hand in drafting several constitutions that took the institutionally embodied Islam for granted and were entirely immune from the Islamic ideology and its myth of the Islamic state. The final constitution promulgated by him in 1992 could thus declare the principle of national sovereignty without any apprehension that it might impinge on God’s cosmic majesty (Article 2). It was marked by “the relative paucity of Islamic trappings” (Mayer 2002, p. 209) and yet remained true to the traditional dualism of the Muslim monarchies in emphasizing the king’s role as the guarantor of both the temporal and the religious legal orders. As in the Ottoman case, the person of the Moroccan king is inviolable and sacrosanct (Article 23), and as the commander of the faithful, he “ensures the observance of Islam and the Constitution” (Article 19). However, the Moroccan Constitution of 1992 also included a number of liberal features, and its preamble reaffirms the kingdom’s subscription to “human rights as they are universally recognized” (Mayer 2002, pp. 209–13). A more interesting and clearly postideological pattern of constitutional reform can be found in Indonesia’s current transition www.annualreviews.org • Islamic Constitutionalism

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to democracy. The two massive Islamic organizations in Indonesia, which between them can claim more than 60 million members, the Nahdlatul Ulama and the Muhammadiyya, had demanded the establishment of an Islamic state during the constitutional debates of the 1960s but subsequently changed their orientation toward civil society and democracy. Their respective leaders, Abdurrahman Wahid and Amien Rais, played key roles in the post-Suharto transition to democracy. Wahid served as president in 1999–2000. As the speaker of the Indonesia Parliament, Rais was responsible for the enactment, between 1999 and 2002, of four extensive amendments to the Indonesian Constitution of 1945, which were followed by an act establishing the Constitutional Court of the Republic of Indonesia in 2003. The amendments, notably the bill of rights in 10 additional articles (28A–28J) included in the amendment of August 18, 2000, transformed Indonesia into a constitutional democracy. This acceptance of democratic constitutionalism by the leaders of the two massive Islamic organizations in Indonesia who resisted the demands for any special Islamic provisions is even more remarkable than the Egyptian liberalization of Islamic constitutionalism.


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THE IMPOSITION OF THE SHARI’A IN THE INCONCLUSIVE SUDANESE CONSTITUTIONAL EXPERIENCE When Sudan achieved colonial independence, a constitutional debate naturally ensued about a legal system to replace the common law system established by the British. Sheikh Hasan Muddathir, the Grand Kadi of the Sudan, wrote a “memorandum for the enactment of a Sudanese Constitution devised from the principles of Islam” for the committee charged with drafting a permanent constitution in 1957, whose work was aborted by the 1958 coup. The so-called October 134

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Civil Revolution of 1964 set up a “law revision committee for the purpose of proposing new laws consistent with our tradition” (in the National Charter as cited in Lutfi 1967, p. 220), but an Islamic draft constitution was shelved by the coup of 1969 by Colonel Ja’far Numeiri, who advocated socialism at first but later turned Islamic. In September 1983, he abruptly imposed the shari‘a law over the whole of the Sudan by presidential decrees in violation of the Addis Ababa agreement of 1972 that had ended the civil war with the non-Muslim Southern Sudanese and was entrenched in the permanent Constitution of 1973. It is important to see this ideological turnabout in historical perspective. Until Numeiri himself promulgated a new civil code in 1971 in fulfillment of his earlier commitment to pan-Arabism and socialism, the shari‘a courts had been functioning for nearly seven decades since the British Mohammedan Law Courts Ordinance of 1902 and had been procedurally modernized only two years earlier with the Shari’a Courts Act of 1967 (Khalil 1971). The shari‘a courts administered personal status and family law but did not have and never claimed criminal jurisdiction. And that was really the point of Numeiri’s imposition of the shari‘a. It wrought havoc with the Sudanese judiciary system but satisfied the Islamists’ punitive urge by amputating the limbs of the poor thieves, some of whom had already served prison sentences, and flogging poor women who had made their living by selling intoxicating beverages (An-Na’im 1990, pp. 219–20, n. 91– 92). Shortly before being overthrown in April 1985, Numeiri executed Mahmud Muhammad Taha, an advocate of radical reform of Islamic law who had published a short pamphlet criticizing the Islamicization program on the charge of apostasy (An-Na’im 1985). In developing Taha’s idea of Islamic reformation and his constitutional proposals (AnNa’im 1990, pp. 57–70, 97–100), his student Abdullahi Ahmad An-Na’im (1990, 1996) analyzed the contradictions between the shari‘a and modern constitutionalism, human rights,


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international law, and other legal fields in exhaustive detail in Toward an Islamic Reformation (An-Na’im 1990). This work deserves much praise as an important corrective to the evasive vagueness of facile assertions by most advocates of Islamic constitutionalism such as those of the leader of the Muslim Brothers (later the National Islamic Front) in the Sudan, Hasan al-Turabi (1983), which are liable to create intolerable abuse and corruption because of their hopeless underspecification. This was indeed the case after the coup of 1989 by the military wing of his National Islamic Front, when Turabi became the chief advisor to General Omar El-Bashir until his fall from the general’s favor in 2000 (El-Affendi 1991). It is remarkable that during the 11 years before his fall, Turabi made no lasting contribution to the development of Islamic constitutionalism beyond the application of the shari‘a, which only prolonged the civil war resumed after its imposition in 1983. The failure of Islamic constitutionalism to accommodate religious minorities, already noted in the case of Pakistan, becomes more glaring in a country with a much more substantial non-Muslim population such as the Sudan, where the multi-party system was formally restored under the Constitution of 1998. An-Na’im’s (2006) most recent African Constitutionalism and the Role of Islam, though confirming the incompatibility of the enforcement of the shari‘a with constitutionalism and his earlier emphasis that the shari‘a has no mechanism for limiting the power and assuring the accountability of the ruler through the separation of powers, does not measure up to the same standard. An-Na’im avoids the term Islamic constitutionalism, opting instead for African constitutionalism in which the role of Islam does and should vary. Demonstrating that the role of Islam in constitutional developments in different countries has been contingent, he infers that Islam should therefore be treated as a variable in legal and constitutional theory as applied to different postcolonial African states. That the

best constitution is the best only for a specific country and that the same should apply to the place of Islam in the constitutional order are cogent and unobjectionable Aristotelian positions. But the work lacks the specificity and richness of legal detail that distinguishes An-Na’im’s first book.

CONSTITUTIONAL TREATMENT OF HUMAN RIGHTS Although I have chosen to structure this survey as a case-by-case study of selected countries that have led different trends in Islamic constitutionalism in different periods, at least one subject has to be treated thematically rather than case by case: human rights. Ann Mayer’s numerous publications, most generally Islam and Human Rights (1999), offer a comprehensive treatment of Islam and human rights. Advocates of Islamic constitutionalism have typically sought an alternative to universal human rights. The document best embodying this Islamic alternative is the 1990 Cairo Declaration on Human Rights in Islam. As is to be expected in an imitative document, much of the legal terminology of the international human rights conventions is swallowed, while quite a number of rights are in substance nullified. The Cairo Declaration offers no guarantee of religious freedom. It prohibits any form of compulsion or exploitation of poverty and ignorance to convert anyone to atheism or a religion other than Islam (Article 10). Article 22 of the Declaration bars “the exploitation or misuse of information ‘in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt, or harm society or weaken its faith.’” It is interesting to note that, in flat contradiction to the historical experience and the public law of virtually all the signatory countries, Article 19 of the Cairo Declaration provides that “[t]here shall be no crime or punishment except as provided for in the Shari‘ah.” Article 25 further declares that the shari‘a is the only source for explanation www.annualreviews.org • Islamic Constitutionalism

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and clarification of the articles of the declaration (Mayer 1994). The human rights provisions of constitutions of Muslim countries are usually set forth in explicit or implied relationship to Islam. This always results in making them qualified rather than categorical, with qualifications on human rights ranging from the general principles of Islam to the specific provisions of the shari‘a. This results in considerable tension that remains unresolved as constitutional texts have not yet devised clear and coherent constitutional principles defining the relationship between human rights and Islam (Mayer 2007).


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CONCLUSION Democracy is a Greek political concept, and its reception in Christianity and Islam has varied through different historical eras and with divisions within each world religion. Current discussions of Islam and democracy are usually couched in essentialist terms and are therefore hopelessly ideological and ahistorical. What this survey shows is that the relation between Islam and constitutionalism is variable, as are forms of Islamic constitutionalism in different historical periods. There are significant differences in the demarcation and overlap of the sacred and the temporal, the religious and the political in the two world religions, but these are translatable to varying inflections of democratic constitutionalism rather than to their possibility or impossibility. Perhaps the greatest pertinent difference between Christianity and Islam is not doctrinal but institutional. As Weber noted, the canon law of Western Christendom was unique among sacred laws in its type of legal rationalization that was due to the bureaucratic organization of the Catholic Church, whereas Jewish and Islamic sacred laws remained “jurists’ laws” (Arjomand 1993b). As a consequence, constitutionalism in Western Europe did not clash with canon law but, on the contrary, had some roots in it. The later reception of 136

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constitutionalism in the Islamic Middle East, by contrast, resulted in a direct clash with the shari‘a as a jurists’ law (Arjomand 1993a). This clash was in principle overcome in the first phase of Islamic constitutionalism by turning the shari‘a into a theoretical limitation on government and legislation. This resolution was, however, rejected in the post World War II wave of ideological constitution-making and political Islam or Islamism, which required that Islam and the shari‘a be made the basis of the constitution of an Islamic state with complete disregard for the historical evolution of public law in the Muslim world. This creates a serious problem, making the compatibility of the ideological reading of Islam and constitutionalism questionable. In this survey I have tried to demonstrate that the intractability of the new problems and their ultimate incompatibility with constitutionalism should be attributed to the ideological character of the constitutional model now taken over by the first Islamic ideologues of the Indian subcontinent and passed on to the subsequent generations of Islamists throughout the world rather than to Islam per se. The vision of the Islamic ideological state whose primary function was the execution of Divine Law was implemented directly by Khomeini in Iran and by Generals Zia ul-Haq and Omar El-Bashir as the ideological disciples of Mawdudi and Turabi in Pakistan and the Sudan, respectively. Few would uphold the Islamicization of Pakistan as a shining example of success, whereas the Sudanese general has reverted to a multiparty pluralistic constitution. The Shi‘ite theocracy with a subordinate elected president and Majles flourishes in Iran, but a vigorous postideological Islamic constitutionalism has grown in opposition to it. More striking is the development of postideological Islamic constitutionalism taking place in Egypt. This latest variant of Islamic constitutionalism disowns the myth of the Islamic state and accepts democracy and the legal modernization of the mid-twentieth century, thereby


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making the principles of the shari‘a not the source of all constitutional and ordinary legislation but one constitutional principle that should act as a limitation to government and legislation, as with the first generation of Islamic constitutionalists, but this time alongside other constitutional principles. This allimportant nuance makes government limited by law much less restricted, as the law can expand significantly beyond the confines of the shari‘a. The future of that Islamic constitutionalism in the face of the Islamic resurgence,

on the one hand, and the persistence of authoritarian regimes, on the other, cannot be predicted. What is certain, however, is that in its latest form it offers a consistent model of Islamic constitutional democracy that would allow for the emergence of Islamic democratic parties similar to the Christian democratic parties in Western Europe and elsewhere, and to the Nahdlatul Ulama and the Muhammadiyya in Indonesia and the Justice and Development Party currently in power in Turkey.

LITERATURE CITED Ahmad ibn Abi Diy¯af. 1872 (2005). Consult Them in the Matter. A Nineteenth-Century Islamic Argument for Constitutional Government. Transl. LC Brown. Fayetteville: Univ. Ark. Press Ahmed I. 1987. The Concept of an Islamic State. An Analysis of the Ideological Controversy in Pakistan. New York: St. Martin’s ¯ Ajud¯ ani M. 2003–2004 (1382). Mashruta-ye ir¯ani (Iranian Constitutionalism). Tehran: Akhtar¯an Akhavi S. 2003. Sunni modernist theories of social contract in contemporary Egypt. Int. J. Middle East Stud. 35:23–49 Akhavi S. 2007. Shi‘ite theories of social contract. In Shari’a: Islamic Law in the Contemporary Context, ed. F Griffel, A Amanat. Stanford, CA: Stanford Univ. Press. In press An-Na’im A. 1985. The elusive Islamic constitution: the Sudanese experience. Orient 26(3):329–40 An-Na’im A. 1990. Toward an Islamic Reformation. Syracuse, NY: Syracuse Univ. Press An-Na’im A. 1996. Islamic foundations of religious human rights. In Religious Human Rights in Global Perspective, Vol. 2: Legal Perspectives, ed. J van der Vyver, J Witte, pp. 337–60. Amsterdam: M. Nijhoff An-Na’im A. 2006. African Constitutionalism and the Role of Islam. Philadelphia: Univ. Penn. Press Arjomand SA. 1992. Constitutions and the struggle for political order: a study in the modernization of political traditions. Arch. Eur. Sociol./Eur. J. Sociol. 33(4):39–82 Arjomand SA. 1993a. Religion and constitutionalism in Western history and modern Iran and Pakistan. In The Political Dimensions of Religion, ed. SA Arjomand, pp. 77–82. Albany: SUNY Press Arjomand SA. 1993b. Shi‘ite jurisprudence and constitution-making in the Islamic Republic of Iran. In Fundamentalisms and the State. Remaking Polities, Economies, and Militance, ed. M Marty, RS Appleby, pp. 88–109. Chicago: Univ. Chicago Press Arjomand SA. 1996. Religious human rights and the principle of legal pluralism in the Middle East. In Religious Human Rights in Global Perspective, Vol. 2: Legal Perspectives, ed. J van der Vyver, J Witte, pp. 321–36. Amsterdam: M. Nijhoff Arjomand SA. 2000. Authority in Shi‘ism and constitutional developments in the Islamic Republic of Iran. In The Twelver Shia in Modern Times: Religious Culture & Political History, ed. W Ende, R Brunner, pp. 301–32. Leiden: Brill Arjomand SA. 2003. The role of religion and the Hanafi and Ja‘fari jurisprudence in the new Constitution of Afghanistan. In Afghanistan: Towards a New Constitution, pp. 18–22. New York: N. Y. Univ., Cent. Int. Coop. www.annualreviews.org • Islamic Constitutionalism

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Arjomand SA. 2007a. Islam and constitutionalism since the nineteenth century: the significance and peculiarities of Iran. In Constitutional Politics in the Middle East (with Special Reference to Turkey, Iraq, Iran and Afghanistan), ed. SA Arjomand, pp. 33–62. London: Hart Arjomand SA. 2007b. Shari’a and constitution in Iran: a historical perspective. In Shari’a and Constitution, ed. A Amanat, F Griffel. Stanford, CA: Stanford Univ. Press. In press Arjomand SA. 2007c. Constitutional development and political reconstruction from nationbuilding to new constitutionalism. In Constitutionalism and Political Reconstruction, ed. SA Arjomand, pp. 1–43. Leiden: Brill Asad M. 1961. Principles of State and Government in Islam. Berkeley: Univ. Calif. Press Baker RW. 2003. Islam Without Fear: Egypt and the New Islamists. Cambridge, MA: Harvard Univ. Press Berkes N. 1964. Development of Secularism in Turkey. Montreal: McGill Univ. Press Binder L. 1961. Religion and Politics in Pakistan. Berkeley/Los Angeles: Univ. Calif. Press Binder L. 1988. Islamic Liberalism: A Critique of Development Ideologies. Chicago: Univ. Chicago Press al-Bishri T. 1996. al-Wad’ al-q¯anuni al-mu’¯asir bayn’l-shari‘ah al-Isl¯amiyah wa-al-q¯anun al-wad’i. Cairo: Maktabat al-Shuruq al-Bishri T. 2006. al-Qad¯a’ al-Misri bayn’l-istiql¯al wa-al-ihtiw¯a’. Cairo: Maktabat al-Shuruq Botiveau B. 1993. Contemporary reinterpretations of Islamic law: the case of Egypt. In Islam and Public Law: Classical and Contemporary Studies, ed. C Mallat, pp. 261–77. London: Graham & Trotman Brown NJ. 1997a. Shari’a and the state in the modern Middle East. Int. J. Middle East Stud. 29.3:359–76 Brown NJ. 1997b. The Rule of Law in the Arab World: Courts in Egypt and the Gulf. Cambridge, UK: Cambridge Univ. Press Brown NJ. 2002. Constitutions in a Nonconstitutional World. Arab Basic Laws and the Prospects for Accountable Government. Albany: SUNY Press Brown NJ, Sherif AO. 2004. Inscribing the Islamic shari‘a in Arab constitutional law. In Islamic Law and the Challenge of Modernity, ed. YY Haddad, BF Stowasser, pp. 55–80. Walnut Creek, CA: AltaMira Choudhry SA. 1988. Constitutional History of Pakistan (1909–1972). Lahore: P.L.D. Publ. Darling LT. 2007. Islamic empires, the Ottoman Empire, and the circle of justice. See Arjomand 2007a El-Affendi A. 1991. Turabi’s Revolution: Islam and Power in Sudan. London: Grey Seal El-Ghobashy M. 2005. The metamorphosis of the Egyptian Muslim Brothers. Int. J. Middle East Stud. 37.3:373–95 El-Ghobashy M. 2006. Taming the Leviathan: Constitutionalist Contention in Contemporary Egypt. PhD diss. Columbia Univ. Elkhalil HH. 2006. Egypt. In Middle Eastern Law, J Phipps et al. Int. Lawyer 40.2:597–626 Feldman N. 2003. After Jihad: America and the Struggle for Islamic Democracy. New York: Farrar, Straus & Giroux Gibb HAR. 1955. Constitutional organization. In Law in the Middle East, ed. M Khadduri, HR Liebesny, pp. 3–27. Washington, DC: Middle East. Inst. Gibb HAR. 1970. The heritage of Islam in the modern world (I). Int. J. Middle East Stud. 1:3–17 Haddad YY. 1980. The Quranic justification for an Islamic revolution: the view of Sayyid Qutb. Middle East J. 37.1:14–29 Hairi AH. 1977. Shi‘ism and Constitutionalism in Iran. Leiden: Brill Hallaq WB. 1997. A History of Islamic Legal Theories. Cambridge, UK: Cambridge Univ. Press


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Shambayati H. 2007. The guardian of the regime: the Turkish Constitutional Court in comparative perspective. See Arjomand 2007a Sorush A-K. 2000 (1379). Siy¯asat-n¯amah. Tehran: Ser¯at Taylor D. 1983. Politics of Islam and Islamization in Pakistan. In Islam in the Political Process, ed. JP Piscatori, p. 181. Cambridge, UK: Cambridge Univ. Press Turabi H. 1983. The Islamic state. In Voices of Resurgent Islam, ed. J Esposito, pp. 241–51. New York: Oxford Univ. Press Vogel FE. 1999. Conformity with Islamic shari‘a and constitutionality under Article 2: some issues of theory, practice, and comparison. In Democracy, the Rule of Law and Islam, ed. E Cotran, AO Sherif, pp. 525–44. London: Kluwer Voll JO. 1991. Fundamentalism in the Sunni Arab world: Egypt and the Sudan. In Fundamentalisms Observed, ed. M Marty, RS Appleby, pp. 345–402. Chicago: Univ. Chicago Press


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The Emergence, Content, and Institutionalization of Hate Crime Law: How a Diverse Policy Community Produced a Modern Legal Fact Valerie Jenness Department of Criminology, Law & Society, Department of Sociology, University of California, Irvine, California 92697-7080; email: [email protected]


Key Words

First published online as a Review in Advance on July 13, 2007

bias crime, lawmaking, public policy, legal reform, civil rights


Abstract This review provides an overview of the emergence, content, and institutionalization of hate crime law as a unique form of criminal and civil rights law originating in the United States and increasingly finding a home in other countries. From the introduction and politicization of the term hate crime in the late 1970s to the increased enforcement of hate crime law at the beginning of the twenty-first century, social movements have constructed the problem of hatemotivated violence; politicians at the federal and state levels have passed legislation defining the parameters of hate crime; appellate court judges have decided the constitutionality of hate crime law; and law enforcement officials have classified, reported, investigated, and prosecuted incidents as hate crime. At the same time, media attention to hate crime has increased, defining the concept for the masses while leading to and reflecting growing acceptance of the idea that criminal conduct is different when it involves an act motivated by (some types of ) bigotry, hatred, or bias and manifested as discrimination against (some types of ) minorities. An examination of these changes suggests that lawmaking transcends the moment at which a statute is adopted; it is best understood as a larger process of policy domain formation that is enabled and constrained by a policy community intimately connected to extralegal political processes and the workings of loosely coupled bureaucratic structures comprising the criminal justice system.

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INTRODUCTION


In the United States, the use of the term hate crime is now commonplace in settings as diverse as the evening news and community newsletters, academic conferences and the nonprofit sector more generally, legislative bodies at every level of government, and presidential debates and proclamations, as well as among citizens and law enforcement officials. It is used so frequently and without contemplation that it is easy to forget that hate crime is, in the first instance, a modern legal invention that signals a shift in how we think about and respond to historically familiar conduct. Although the kinds of behaviors hate crime has come to signify—biasmotivated violence against minorities marked by race, religion, national origin, sexual orientation, and the like—are about as old as humankind (Bensinger 1992, Levin 1992, Petrosino 1999), before the 1970s the term did not circulate among the public or in the criminal justice system. In other words, the term itself is relatively new, and, more importantly, the criminal categories it represents and the attendant criminal justice practices it invokes are recent developments in the history of lawmaking and the criminal justice system. Although it remains an empirical question whether the United States is experiencing greater levels of bias-motivated conduct than in the past (see Jacobs & Henry 1996; cf. Levin & McDevitt 1993, Levin & Rabrenovic 2004), it is beyond dispute that the concept of hate crime has found a home in the social and legal lexicon in the United States and abroad ( Jenness 2003). The idea that bigotry is criminal and that criminal conduct is somehow different when it involves an act motivated by (some types of ) hatred or bias and manifested as discrimination against (some) minorities is increasingly accepted among the citizenry and by those charged with implementing criminal justice policy (Cogan 2002; Craig & Waldo 1996; Hart-Teeter Res. Co. 1999a,b; Lyons 2006; Newhall et al. 2002; Steen & Cohen 2004). Moreover, the in-

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creased criminalization of violence that contains elements of bias or discrimination has authorized the state to allocate more severe punishment to those who perpetrate such violence; this, in turn, is increasingly taken for granted rather than greeted with contestation (Cogan 2002, Jenness & Grattet 2001, Steen & Cohen 2004). But, why now? Where did the concept of hate crime come from? How has it been institutionalized as part of both popular discourse and criminal justice practice? What are the consequences of such changes in law? And finally, what do answers to these questions reveal about the nature of lawmaking and law enforcement more generally? This article addresses these questions by focusing on the emergence, content, and institutionalization of hate crime law as a unique form of criminal and civil rights law originating in the United States and increasingly finding a home in other countries. From the introduction and politicization of the term hate crime (and its synonym bias crime) in the late 1970s to the increasing enforcement of hate crime law at the beginning of the twenty-first century, modern social movements—what some would call new social movements—have constructed the problem of bias-motivated violence in particular ways ( Jenness 1995a,b, 1999; Jenness & Broad 1997; Maroney 1998). Furthermore, politicians at both the federal and state levels have made legislation that defines the parameters of hate crime (Earl & Soule 2001, Grattet et al. 1998, Haider-Markel & Meier 1996, Jenness & Grattet 2001, Soule & Earl 2001). Judicial decision makers have elaborated and enriched the meaning of hate crime as they grappled with questions about the constitutionality of hate crime as a legal concept (Gellman & Lawrence 2004, Phillips & Grattet 2000). And law enforcement officials continue to investigate, classify, and prosecute bias-motivated incidents that may or may not be deemed hate crime (Bell 2002; Boyd et al. 1996; Haider-Markel 1998; Jenness & Grattet 2005; Martin 1995, 1996; McPhail & Jenness


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2006; Van Dyke et al. 2001). An examination of these activities and the institutional spheres in which they occur suggests that lawmaking transcends the moment at which a statute is adopted; instead, it is best understood as a larger process of policy domain formation (Burstein 1991) in which ideas, politics, and public policy are intimately infused (Campbell 2002). In the case of hate crime law, this process has been enabled and constrained by extralegal political processes intersecting the workings of loosely coupled bureaucratic structures comprising the criminal justice system (Hagan et al. 1979). Detailing how this has occurred and with what consequences is the central objective of this review. Acknowledging that a very impressive review of the literature on the causes, manifestations, and consequences of hate crime has already been published in the Annual Review of Sociology (Green et al. 2001),1 here I bypass the issue of perpetration. Instead, I focus empirical and theoretical attention on how hate crime law has been created, institutionalized, and implemented over the past 30 years, such that what does and does not constitute a hate crime has been discerned by social movements, codified in law, affirmed by the courts, reconstituted at the level of law enforcement policy and practice, and made publicly available by the media. The empirical goal is to document the origins, content, and workings of hate crime law. The theoretical goal is to use the history, content, and variably constructed nature of hate crime law as a case study to promote a view of lawmaking that—instead of being exclusively focused on the antecedents of law or the moment at which a law is adopted by a legislative body—is focused on how criminal law is made and remade as it traverses diverse contexts inside and outside the criminal justice system. In accordance with Ismaili’s 1

In addition, other work has inventoried sociological findings about the causes and manifestations of hate crime as conduct (Baird & Rosenbaum 1992, Levin & McDevitt 1993, Levin & Rabrenovic 2004) and the social psychological findings about hate crime perpetration and its consequences (Barnes & Ephross 1994, Craig 2002).

(2006) recent call to understand criminal justice policy by “Contextualizing the Criminal Justice Policy-Making Process,” the goal is to understand how a diverse policy community shaped the development of hate crime law and the law enforcement practices that surround it.

INVENTING HATE CRIME AND DEVELOPING AN ANTI–HATE CRIME MOVEMENT What is now commonly referred to as biasor hate-motivated violence is not a new phenomenon; rather, it is a feature of human societies throughout history and across the globe (Petrosino 1999, Sheffield 1992). Scholars from many disciplines have documented that human history is punctuated with intergroup conflict and attendant bias-motivated violence. In Racial and Religious Violence in America: A Chronology, for example, Newton & Newton (1991, p. ix) document “a time line of atrocity, acts of mayhem, murder, and intimidation perpetrated on the grounds of racial or religious prejudice, from the discovery of North America to modern times.” They conclude that “bloodshed based on race or creed is interwoven with the fabric of our culture from the first arrival of explorers to the present day.” Likewise, in their path-breaking work on the social construction of hate crime, Jacobs & Potter (1998, p. 391) recognize that “clearly, violence motivated by racism, xenophobia, anti-Semitism and other biases is not new,” and Sheffield (1992) has pointed out that historically such violence often has been undertaken by the state rather than addressed by the state. To get to the current state of affairs— which includes the criminalization of biasmotivated violence to enable the state to punish with enhanced penalties those engaged in such conduct—requires first understanding the context in which the term hate crime was invented and promoted to signify particular forms of violence and discriminatory conduct. The term hate crime emerged in the second www.annualreviews.org • Hate Crime Law

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half of the twentieth century and initially took form in the 1980s as the result of an anti–hate crime movement. As Maroney (1998) documents in detail, the anti–hate crime movement in the United States emerged on the coattails of previously institutionalized movements and is itself the product of a confluence of several social movement discourses, most notably the black civil rights movement, the modern women’s movement, the gay and lesbian movement, the disabilities rights movement, and the crime victims’ movement (see also, Gaumer 1994, Jenness 1995a, Jenness & Grattet 2001). Each of these preexisting social movements sustained an institutionalized commitment to publicizing and combating violence directed at minorities because of their minority status. For example, the modern civil rights movement politicized violence against racial minorities, including lynching and police brutality against blacks; the women’s movement politicized violence against women, such as rape and domestic violence; the gay and lesbian movement politicized violence against homosexuals, especially gay bashing; and the disabilities movement politicized violence against persons with disabilities, including mercy killings against those deemed unfit to live meaningful lives. Equally important, themes emerging from the crime victims’ movement contributed greatly to the development of an anti–hate crime movement. Typically deemed a conservative movement (Weed 1995), the crime victims’ movement emerged in the late 1960s, took form in the 1970s, and was institutionalized by the 1990s with a basic grievance: Victims of crime, especially violent crime, not only need, but are entitled to special assistance, support, and rights as crime victims. As Weed (1995, p. 21) explains, this grievance emerged because “the criminal justice system was not perceived as providing certainty of justice for the criminal or the victim.” Thus, advocates for victims’ rights argue that legal and extralegal mechanisms are needed to recognize and serve those injured by crime, especially violent crime.


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In the 1980s, the anti–hate crime movement in the United States emerged through a fusion of the strategies, discourses, and goals of preexisting rights movements on both the political right and left. This new movement, the anti–hate crime movement, united heretofore seemingly disparate social movements, creating what Maroney (1998) has called an “unlikely combination” and others have called “strange bedfellows” ( Jenness & Broad 1997). As liberal, progressive movements, the civil rights, women’s, disabilities, and gay and lesbian movements “called attention to the personal costs of minority groups’ political victimization,” while the more conservative crime victims’ movement “called attention to the political context of personal victimization” (Maroney 1998, p. 579). Combined, these preexisting movements laid the foundation for a new movement to question, and make publicly debatable, issues of rights and harm as they relate to a variety of constituencies (Maroney 1998), even as they have taken opposing positions on a number of other criminal justice issues (e.g., the death penalty, the war on drugs, and the federal sentencing guidelines). As Maroney (1998, p. 568) detailed in an early account of this merger, “these movements created collective beliefs, structural resources, and political opportunities that facilitated the emergence of a social movement organized around hate crime and its victims.” Composed of diverse organizations,2 the anti–hate crime movement effectively discovered hate crime in the modern era, 2

The leadership for the anti–hate crime movement derived from previously established civil rights groups (e.g., the Anti-Defamation League of B’nai B’rith, the National Association for the Advancement of Colored People, the Southern Poverty Law Center’s Klanwatch Project, the Center for Democratic Renewal, the National Asian Pacific American Legal Consortium, the National Gay and Lesbian Task Force, the Puerto Rican Legal Defense and Education Fund, and the Center for Constitutional Rights) as well as new grassroots groups emerging with hate crimes as their exclusive focus (e.g., the New York City Gay and Lesbian Anti-Violence Project, the Committee Against Anti-Asian Violence) (Fernandez 1991, Jenness & Broad 1997, Maroney 1998).


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rendered the category of behavior at issue empirically credible by documenting an epidemic of bias-motivated violence, and demanded that policy measures be enacted to remedy the inequalities reflected in hate crime perpetration (Gaumer 1994, Jenness & Broad 1997, Maroney 1998). Early on, the anti–hate crime movement promoted the concept of hate crime without the official backing of the state; that is, hate crime was popularly used by activists and the media alike even before state and federal lawmakers bestowed the term with legal authority via the adoption of statutes. As is described in the next section, however, throughout the 1980s and 1990s rapid legal reform resulted in the term hate crime achieving legal status such that it has come to signify a particular type of criminal conduct.

PASSING HATE CRIME LAWS AND CRIMINALIZING BIAS-MOTIVATED VIOLENCE With a newfound awareness of the parameters of discriminatory violence in hand, in the last quarter of the twentieth century lawmakers in the United States began to respond to what they perceived to be an escalation of violence directed at minorities by “making hate a crime” ( Jenness & Grattet 2001). As Maroney (1998, p. 589) has shown, “the concept of a comprehensive legislative response to bias crime came into vogue in 1981 after the ADL [Anti-Defamation League] released a model hate crime statute ‘intended to assist state and local governments which would like to enact hate crime laws’” (see also Anti-Defamation League 1990, 1994, 1997; Gaumer 1994). Around this time, legislators embraced legal reform that further criminalized discriminatory violence and, in some cases, also articulated a cause for civil action for biasmotivated violence. As a result, by the turn of the century, almost every state in the United States had adopted a statute recognized as a hate crime law, and the federal government adopted four acts recognizable as hate crime law.

At the state level, a plethora of hate crime laws have been adopted (Earl & Soule 2001, Grattet et al. 1998, Haider-Markel 1998, Haider-Markel & Meier 1996, Jenness & Grattet 2001, Soule & Earl 2001, Uhrich 1999). These laws, which have simultaneously recognized, defined, and responded to discriminatory violence, have taken many forms throughout the United States, including statutes delineating criminal penalties for civil rights violations, specific ethnic intimidation and malicious harassment statutes, and provisions in previously enacted statutes for enhanced penalties if an extant crime is committed for bias or prejudicial reasons. These laws specify provisions for discriminatory violence that is directed at people because of their race, religion, color, ethnicity, ancestry, national origin, sexual orientation, gender, age, disability, creed, marital status, political affiliation, involvement in civil or human rights, and military service. In addition, some states have adopted statutes that (a) require authorities to collect data on hate- or biasmotivated crimes, (b) mandate law enforcement training, (c) prohibit the undertaking of paramilitary training by non-military personnel, (d ) specify parental liability for the perpetrator’s actions, and (e) provide for victim compensation. Lastly, many states have statutes that prohibit institutional vandalism and the desecration or the defacement of religious objects, the interference with or disturbance of religious worship, and crossburning [for an updated inventory of statelevel hate crime law, see the Anti-Defamation League’s map of state law at http://www.adl. org/learn/hate crimes laws/map.html (last accessed January 3, 2007)]. Well over half of the so-called penalty enhancement laws for crimes motivated by certain biases were based on a model developed and disseminated by the Anti-Defamation League (1990, 1994, 1997). The U.S. Congress has passed four laws specifically designed to address biasmotivated violence. In 1990, President George H.W. Bush signed the Hate Crimes www.annualreviews.org • Hate Crime Law

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Statistics Act (HCSA). The HCSA originally required the U.S. attorney general to collect statistical data on “crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder; nonnegligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property” (Public Law No. 101–275). The HCSA was amended by the Violent Crime Control and Law Enforcement Act of 1994 to include crimes motivated by a bias against persons with disabilities and was amended by the Church Arson Prevention Act in 1996, which removed the sunset clause in the original act and permanently extended the data collection mandate. As a data collection law, the HCSA requires the attorney general to gather and make available to the public data on biasmotivated crime every year. Summarized in Table 1, the result has been a national inventory of officially reported hate crime in the United States based on voluntary reporting by law enforcement agencies across the country. Since 1991, law enforcement participation in the data collection has steadily increased even as the total number of hate crimes reported in the United States has not (Table 1). By the turn of the century, 50 states were participating in this data collection effort, representing over 12,000 law enforcement agencies covering more than 85% of the population (Table 1).3 However, more than 80% of the reporting agencies routinely report zero hate crimes (Nolan et al.


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In his article subtitled “Race, Institutions, and Complying with Hate Crime Law,” King (2007) demonstrates that compliance with the HCSA is less likely in places with larger black populations and that this finding is contingent upon region. With regard to the latter, a positive correlation in the Northeast contrasts with an inverse association in the South. Finally, King also demonstrates that organizational facets of law enforcement affect compliance with the HCSA, with a commitment to community policing positively affecting compliance.

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2002; see also Grattet & Jenness 2007, King 2007).4 The rationale for the HCSA was to mandate the collection of empirical data necessary to develop effective policy. Those supporting the HCSA argued that involving the police in identifying and counting hate crimes could help law enforcement officials measure trends, fashion effective responses, design prevention strategies, and develop sensitivity to the particular needs of victims of hate crimes. At the same time, early analyses of the law anticipated obstacles to enforcement of the HCSA (for early assessments of hate crime legislation, see Fernandez 1991, Uhrich 1999; for a more recent empirical assessment of data generated by the HCSA, see Nolan et al. 2002). Notably, the HCSA does not, in any way, stipulate new penalties for bias-motivated crimes, nor does it provide legal recourse for victims of bias-motivated crime. In 1994 Congress passed the Hate Crimes Sentencing Enhancement Act (HCSEA), which identifies eight predicate crimes— murder; nonnegligent manslaughter; forcible rape; aggravated assault; simple assault; intimidation; arson; and destruction, damage, or vandalism of property—for which judges are allowed to enhance penalties of “not less than three offense levels for offenses that finder of fact at trial determines beyond a reasonable doubt are hate crimes” (Public Law No. 103-322). For the purposes of this law, hate crime is defined as criminal conduct in which “the defendant intentionally selected any victim or property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person” (Public Law No. 103-322). Although broad in form, this law addresses only those hate crimes 4

For alternative data sources on official hate crime reporting, see reports based on the National Incident Based Reporting System (NIBRS), which is part of the Uniform Crime Reports, and the National Crime Victimization Survey (NCVS) sponsored by the Bureau of Justice Statistics, U.S. Department of Justice.

10

Anti-Islamic

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147 n/a

343

498

51

42

6181

8075

–

–

–

–

3

13

928

–

–

944

1

14

77

17

29

18

1084

1240

Source: U.S. Department of Justice, Washington, DC.

% of U.S. population represented

32

2771

# of participating agencies

# of states, including DC

4755

–

Multiple bias

TOTAL

–

Anti-bisexual –

Anti-heterosexual

Anti-mental

Anti-homosexual

Anti-physical

Anti-female homosexual

–

1

– 421 3

–

Anti-male homosexual

Disability

425

4

Sexual orientation

Anti-atheism/agnosticism/etc.

5

26

Anti-Protestant

11

23

Anti-Catholic

Anti-multi-religious group

792

Anti-Jewish

Anti-other religious group

208 917

Religion

242

Anti-Hispanic

841

198

275

31

2884

58

47

6551

7969

–

–

–

–

1

28

111

113

665

938

3

11

58

13

25

31

1104

1245

287

414

701

190

274

36

2985

1600

5085

1993

58

44

7356

7144

–

–

–

–

7

16

77

119

561

780

3

14

72

16

30

17

1080

1232

338

407

745

173

267

26

2668

1253

4387

1994

75

46

9584

9895

23

–

–

–

18

19

125

189

915

1266

1

25

122

39

47

35

1145

1414

342

680

1022

311

484

59

3805

1511

6170

1995

84

50

11354

10706

20

–

–

–

12

38

94

185

927

1256

2

27

139

33

80

37

1182

1500

453

710

1163

318

527

69

4469

1384

6767

1996

83

49

11211

9861

10

3

9

12

10

14

210

229

912

1375

3

26

173

31

59

32

1159

1483

447

636

1083

312

437

44

3838

1267

5898

1997

80

47

10730

9235

15

13

14

27

19

13

170

265

972

1439

2

45

138

22

61

62

1145

1475

324

595

919

373

359

66

3573

989

5360

1998

85

49

12122

9301

10

10

11

21

25

16

205

216

1025

1487

5

35

170

34

49

41

1198

1532

435

576

1011

316

363

49

3542

970

5240

1999

86

49

11690

9430

17

16

20

36

20

22

210

211

1023

1486

6

46

187

33

62

61

1161

1556

429

735

1164

333

317

62

3409

1050

5171

2000

85

50

11987

11451

21

25

12

37

17

20

207

245

1103

1592

5

51

211

546

36

38

1117

2004

1752

755

2507

283

349

95

3529

1034

5290

2001

86

50

12073

8832

7

27

20

47

15

26

259

207

957

1464

3

32

217

170

57

58

1039

1576

744

601

1345

202

268

68

2967

888

4393

2002

83

50

11909

8715

9

10

30

40

9

15

305

220

881

1430

13

25

118

155

50

78

987

1426

707

529

1236

213

277

83

3032

969

4574

2003

87

50

12711

9035

14

48

23

71

18

35

297

201

855

1406

7

37

140

193

43

57

1003

1480

590

611

1201

235

252

97

3281

998

4863

2004

82

50

12417

7163

3

32

21

53

25

21

195

155

621

1017

4

39

93

128

57

58

848

1227

422

522

944

183

199

97

2630

828

3919

2005

24 October 2007

Anti-other ethnicity/national origin

450

88

287

Ethnicity/national origin

Anti-multiracial group

Anti-Asian/Pacific Islander

11

1689

Anti-black

1664

5050

1992

ARI

Anti-American Indian/Alaskan Native

888

2963

Anti-white

1991

Race

Bias-motivated offenses reported by the Uniform Crime Reports, 1991–2005

Type of bias motivation

Table 1

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that take place on federal lands and properties. It was not until eight years after the passage of the HCSEA that it was invoked for prosecutorial purposes.5 Also passed in 1994, the Violence Against Women Act (VAWA) specifies that “all persons within the United States shall have the right to be free from crimes of violence motivated by gender” (Public Law No. 103-322). The VAWA allocated over $1.6 billion for education, rape crisis hotlines, training of justice personnel, victim services (especially shelters for victims of battery), and special units of police and prosecutors to deal with crimes against women. The heart of the legislation, Title III, provides a civil remedy for gender crimes. Title III entitles victims to compensatory and punitive damages through the federal courts for a crime of violence if it is motivated, at least in part, by animus toward the victim’s gender. This allowance implicitly acknowledges that some, if not most, violence against women is not gender neutral; accordingly, it establishes the possibility that violence motivated by gender animus is a proper subject for civil rights action. In so doing, it affixed the term hate crime to “a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to animus based on the victim’s gender” (Public Law No. 103-322). Although this law was ruled unconstitutional on the grounds that it exceeded the constitutional reach of the Congress into the purview of the states (United States v. Morrison 2000), it received national attention and was predicated upon and promoted the inclusion of gender in the concept of a hate crime (Angelari 1994). Finally, in 2005 President George W. Bush signed the Local Law Enforcement Hate Crimes Prevention Act. As Title X of the


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In 2002, Attorney General Ashcroft announced the indictment of Darrell David Rice on homicide charges for stalking and murdering two lesbians camping in the Shenandoah National Park. In 2004, the charges were withdrawn “without prejudice,” thus leaving the door open for Rice to be charged anew at a later date.

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Children’s Safety Act of 2005, this law expands the definition of hate crimes to include offenses that are motivated by the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability” of the victim (Children’s Safety Act of 2005). In addition, the act provides federal grants to law enforcement agencies to help defray the cost of prosecuting hate crimes and allows for the assistance of federal personnel as needed in cases involving hate-motivated violence or attempted violence. In essence, this law broadens the reach of the HCSEA and provides funding to law enforcement agencies and officials to pursue bias-motivated violence as a particular type of crime. This rapid legal reform at both the state and federal levels has been accompanied by a plethora of publications by civil rights workers, state officials, and law professors committed to promoting the protection of civil rights through the development and implementation of hate crime law. Early in the history of hate crime lawmaking, for example, Lee & Fernandez (1990) pursued a normative agenda in an article published in the Harvard Civil Rights-Civil Liberties Law Review in which they provide a comprehensive inventory of hate crime law to date, an assessment of the parameters of state and federal hate crime law, a detailed analysis of the Massachusetts Civil Rights Act of 1979 (one of the first formulations of a hate crime law), and a justification for the adoption of comprehensive legislation that includes criminal penalties and civil remedies. As they write, “the purpose of this article is to assist state legislators in enacting a statute designed to combat hate-motivated violence” (Lee & Fernandez 1990, p. 287). Following suit, throughout the final decade of the twentieth century a cottage industry developed around how to formulate, defend, institutionalize, and implement hate crime law as well as detect, report, and prosecute hate crime (see, for example, Anti-Defamation League 1990, 1994, 1997; Cent. Democr. Renew. 1992; Dillof 1997; Fernandez


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1991; Harel & Parchomovsky 1999; Levin 1992). Breaking ranks with those embracing a decidedly normative agenda, social scientists interested in the behavior of law and the development of public policy more generally have analyzed the emergence and content of hate crime law. In one of the first published sociological studies of hate crime law adoption, Jenness & Grattet (1996) demonstrate that structural and political determinants of criminalization posited by contemporary theoretical arguments are, in and of themselves, insufficient to explain the recent criminalization of bias-motivated behavior. Therefore, in a subsequent publication, they rely on event history analyses to reveal that the timing of the adoption of statutes, the internal composition of the state, and the innovativeness of the policy culture of a state affect the diffusion of hate crime laws across the United States (Grattet et al. 1998). In related work, others have explored the intrastate and interstate factors that predict the enactment of state hate crime law (Soule & Earle 2001); the factors that predict the differential inclusion of status provisions, such as sexual orientation, gender, and disability, in hate crime law (Earl & Soule 2001, Haider-Markel & Meier 1996, Jenness 1999); the historical links between modern hate crime law and previous generations of law designed to protect minorities from bias violence (Levin 2002, Maroney 1998); the relationship between southern lynching and contemporary law enforcement responses to hate crime in the United States (King et al. 2006); and the relationship between collective memories of hate and cultural traumas and the particularities of law and law enforcement in the United States and abroad (Savelsberg & King 2005). Reading across this work reveals that the development of hate crime law has historical antecedents that continue to shape its content (King et al. 2006, Savelsberg & King 2005), and, over time, the domain and complexity of the content of hate crime law has expanded ( Jenness 1995b, Jenness & Grattet 2001, Phillips & Grattet 2000).

DEBATING THE CONSTITUTIONALITY OF HATE CRIME AND SETTLING ON THE PARAMETERS OF LAW As quickly as hate crime laws were proposed, adopted, and analyzed, constitutional concerns about the validity, and thus legal viability, of hate crime law emerged. In the 1990s, legal scholars debated the constitutionality of hate crime law, often in ways that aligned with larger debates about the regulation of hate speech (Gould 2005, Jones 1992, Lawrence 1993) and the reach of federalism (Chorba 2001, Lawrence 1999, Lee & Fernandez 1990, Uhrich 1999). Some compellingly argued that hate crime laws are “inherently unfair” (Goldberger 2004) and infringe on constitutionally guaranteed rights to free speech, equal protection, and due process (a detailed, comprehensive inventory and analysis of these arguments is beyond the scope of this review; for an informative overview, see Phillips & Grattet 2000). For example, the year after the passage of the HCSA, Gellman (1991) published an important—and now classic— challenge to hate crime law in the UCLA Law Review, aptly subtitled “Constitutional and Policy Dilemmas of Ethnic Intimidation Laws.” In an equally important counter to this article, as well as a series of other published critiques of hate crime law, Lawrence’s (1999) book Punishing Hate: Bias Crimes Under American Law provided a persuasive argument affirming the constitutionality of hate crime law. Tellingly, by 2004, Gellman & Lawrence (2004) coauthored an article called “Agreeing to Agree: A Proponent and Opponent of Hate Crime Laws Reach Common Ground” in which they propose a model bias crime statute that adopts a “thoughtful approach to the twin concerns of punishing the infliction of special harms and protecting freedom of speech” (Gellman & Lawrence 2004, p. 421). In many ways, this dialogue and attendant resolution between two major players in the debate over the constitutionality of hate crime law map onto the history of judicial

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decision making on the issue precisely because “the central constitutional issues regarding speech, due process and equal protection presented perplexing questions upon which reasonable people could, and did, disagree. Yet such questions have now been largely resolved [by the courts]” (Phillips & Grattet 2000, p. 575). As legal scholars debated the constitutionality of hate crime laws during the 1990s, by the turn of the century U.S. appellate courts heard no fewer than 38 cases dealing with hate crime legislation in at least 17 states that tested the constitutionality of hate crime law (Philips & Grattet 2000). Most notably, in 1992 and 1993 the U.S. Supreme Court decided two cases that addressed the constitutionality of statutes directed at bias-motivated intimidation and violence—R. A. V. v. City of St. Paul (1992) and Wisconsin v. Mitchell (1993)—and, in the process, substantially set the parameters for hate crime law in the United States. Descriptions of these cases, the basis for the Court’s decisions, and the implications for future law can be found in numerous publications (see, for example, Brooks 1994, Jones 1992, Kagan 1993, Maroney 1998, Philips & Grattet 2000, Uhrich 1999). Beginning with the first hate crime case to make it to the U.S. Supreme Court, R. A. V. v. City of St. Paul, the Supreme Court evaluated a free speech challenge to a hate crime statute. The case involved a defendant who was convicted of burning a cross inside the fenced yard of a black family who lived across the street from the house where the defendant was staying. As interpreted by the Minnesota Supreme Court, the ordinance before the U.S. Supreme Court criminalized fighting words, which are words that “one knows or has reasonable grounds to know arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” Minnesota argued that because all fighting words are outside First Amendment protection, race-based fighting words could be criminalized, but the U.S. Supreme Court disagreed and struck down the statute. The U.S. Supreme Court decided


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that Minnesota had not in fact criminalized all fighting words, that the statute isolated certain words based on their content or viewpoint, and that therefore the statute violated the First Amendment. As Maroney (1998, p. 592) concluded, “R. A. V. sounded the death knell for hate crime laws directly targeting free speech and cast the constitutionality of all hate crime laws into doubt.” In contrast, the second Supreme Court case, Wisconsin v. Mitchell, affirmed the viability of hate crime law. In this case, the U.S. Supreme Court unanimously upheld a Wisconsin statute that provides for an enhanced penalty in situations in which the defendant “intentionally selects the person against whom the crime [is committed] because of the race, religion, disability, sexual orientation, national origin or ancestry of that person.” This case involved a defendant who incited a group of young black men who had just finished watching the movie Mississippi Burning to assault a young white man by asking, “Do you all feel hyped up to move on some white people,” and by calling out, “You all want to fuck somebody up? There goes a white boy; go get him.” In the ruling on this case, the U.S. Supreme Court rejected the defendant’s contention that the penalty enhancement statute penalized thought, arguing instead that the statute was directed at the defendant’s conduct—committing a crime—and that because the bias motivation would have to be connected with a specific act, there was little risk that the statute would chill protected bigoted speech. In other words, the U.S. Supreme Court reasoned, the statute focused not on the defendant’s bigoted ideas, but rather on his actions based on those ideas. After Mitchell, challenges to penalty enhancement statutes on the basis of the First Amendment appear to be largely foreclosed (Anti-Defamation League 1997, Philips & Grattet 2000). Comparisons between R. A. V. and Mitchell lead legal analysts to draw conclusion about the workings and future of hate crime law. With regard to the former, for example,


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Maroney (1998, p. 608) was not alone when she observed that “hate crime committed against whites may be regarded as both more serious and more transgressive than hate crimes against people of color. One could argue that because Mitchell’s victim was white, the case was sufficiently important to become the vehicle for validating hate crime laws.” The racial implications of these cases aside, Mitchell was read as a decision that affirmed judicial approval for a particular form of hate crime law—the so-called penalty enhancement model (Anti-Defamation League 1994, 1997; Grattet et al. 1998). Moving beyond a legal analysis of these two very important, high-profile cases, Phillips & Grattet (2000) empirically examined the evolution of judicial decision making surrounding 38 hate crime–related cases that came before appellate courts between 1984 and 1999. Their analysis of the arguments, counterarguments, and judicial decisions in these cases suggests two processes fueling the institutionalization of hate crime law. As they explain: First, the judicial conception of hate crime has become more elaborate and complex than a handful of signifiers contained within the statutes would seem to imply. In other words, today one would not be able to understand what exactly hate crime laws cover by looking at the statutes alone. Additional layers of meaning have been added as judges have worked to spell out the precise legal definition of hate crime and delineate the boundaries of what is included in the concept and what is not. This activity is crucial to justifying and defending the concept from challenges. Second, and perhaps more surprising, courts have recently expanded the scope of what they recognize as hate crime. Thus, once the core of the concept was largely secured from challenges, courts began to apply the concept to novel circumstances (Phillips & Grattet 2000, p. 585).

Both of these processes, which they call “construct elaboration” and “domain expan-

sion,” indicate that hate crime (as a legal concept) is gaining acceptance, or, to use their term, “settling” (Phillips & Grattet 2000). Over time, the courts have reached agreement on the parameters of a constitutionally valid hate crime law, and the constitutionality of hate crime law has become institutionalized.

TRANSLATING SYMBOLIC LAW INTO LAW ENFORCEMENT PRACTICE As the courts reached agreement on what forms of hate crime statutes would survive constitutional tests, law enforcement officials on the ground grappled with how to operationalize and implement hate crime law. As others have documented, the mandate to enforce hate crime law brings with it definitional ambiguities related to the parameters of hate crime in general and motive in particular (Bell 2002; Boyd et al. 1996; Franklin 2002; Martin 1995, 1996); political controversies surrounding hate crime and its relationship to political correctness in both law enforcement agencies and communities (Bell 2002; Boyd et al. 1996; Cogan 2002; Nolan & Akiyama 1999, 2002); and organizational dilemmas connected to agency structures, resource allocation decisions, and workplace culture (Bell 2002; Balboni & McDevitt 2001; Haider-Markel 2004; Nolan & Akiyama 1999, 2002; Martin 1995, 1996; Walker & Katz 1995; Wexler & Marx 1986). As a result, the enforcement of hate crime law often has been delayed and, when it is forthcoming, is quite variable (Franklin 2002). Despite these difficulties, however, hate crime law nonetheless is being enforced. Police officers are being trained to enforce hate crime law, incidents of hate crime are being officially recorded, perpetrators are being arrested, and prosecutors are—on rare occasion—successfully prosecuting hate crime. These organizational outcomes suggest that the implementation of hate crime law and attendant policy is, at least to some degree, under way (cf. Franklin 2002). What www.annualreviews.org • Hate Crime Law

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is known about the operationalization and implementation of hate crime law comes from a growing number of published studies that shed light on how the organization and practice of law enforcement shape whether, when, and how hate crime law gets enforced. The literature on the enforcement of hate crime law is anchored in the study of policing (cf. King 2007). As late as 1998, Maroney (1998, p. 607) reported that “no empirical research has been done to support or refute the premise of selective prosecution.” With the exception of an early article on “unconscious racism in the prosecution of raciallymotivated violence” (Hernández 1990), only recently have essays on the relationship between hate crime law and prosecutorial practices (Franklin 2002, Goldberger 2004) and a few studies of the prosecution of hate crime (King et al. 2006, McPhail & Jenness 2006, Phillips 2006) emerged. In one of the first studies published on the policing of hate crime, Wexler & Marx (1986) examined the Boston Police Department’s efforts to respond to race- and ethnicity-based violence by implementing a department-wide policy and creating a specialized policing unit that was effective in uncovering incidents that, under traditional reporting methods, appeared commonplace. In 1978, the Boston police commissioner established written guidelines that “were to alter dramatically” (Wexler & Marx 1986, p. 210) how bias crimes would be handled. The guidelines inspired a number of new police practices related to biasmotivated crime (e.g., intensive investigation after an incident, covert surveillance, victim decoys, and cover tests). One of the major empirical findings presented in this work is how law enforcement guidelines and policy prompt change in police practices (Wexler & Marx 1986). More recently, Grattet & Jenness (2007) relied on data from hundreds of California law enforcement agencies and hierarchical linear modeling to reveal that policies do, indeed, increase the rate of official hate crime reporting; moreover, the degree to which law enforcement agencies are inte-


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grated into the communities in which they reside and to which they respond amplifies the effect policies have on official reporting. In the mid-1990s, a series of published studies documented the institutional, organizational, community, and individual factors that shape the policing of hate crime. For example, Walker & Katz’s (1995) work examined the creation of bias crime units as a significant new feature of American law enforcement. Based on a study of 16 agencies that reported having a bias crime unit, this work reveals two important findings. First, personnel in these units use discretion to define their mission more broadly than do other law enforcement personnel by addressing the more general problem of racial and ethnic conflict. Second, the most important factor related to the effective administration of a bias crime unit is how much a department is committed to responding to the general problem of bias crime. This commitment is reflected in the existence of training procedures, special policies, and formal statements made by high-ranking law enforcement officials (see also Grattet & Jenness 2005, 2007; Jenness & Grattet 2005). Five years after the publication of this work, the 2000 Law Enforcement Management Administrative Statistics survey of police departments conducted by the U.S. Bureau of Justice Statistics revealed that the implementation of hate crime law enforcement—as measured by the development of special policies, the assignment of personnel, and the installment of special units designed to enforce hate crime law—is, in some ways, faring well when compared with other policing pursuits, such as victim assistance, domestic violence, gangs, and community policing (Figure 1). Taking an in-depth look at multiple agencies in different states, Martin (1995, 1996) published a comparative case study examining how two jurisdictions, New York City and Baltimore County, Maryland, respond to hate crime. Treating these two jurisdictions as “leaders in the movement to emphasize biasmotivated incidents,” she found that these


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“agencies follow very similar procedures for identifying such offenses but employ different practices for investigating and verifying hate crimes” (Martin 1996, p. 459). Bringing analytic attention to the communities and organizational structures in which these practices emerged, Martin (1996, p. 471) concluded that “hate crimes, like other types of crimes, ultimately emerge through police definitions and situations and interpretations of laws and policies.” This work emphasizes the multitude of interpretive processes that demarcate whether criminal incidents get labeled as hate crime. Getting even closer to what law enforcement officers on the ground actually do to enforce hate crime law, Boyd et al.’s (1996) ethnography of a large urban police department’s response to the passage of state hate crime law examines the processes whereby statutory requirements are implemented at the level of front-line personnel. They conclude, “[F]undamental to the various decision-making processes are the various institutional arrangements of the divisions, for it is in and through the organizational structure of the division and the department that particular decisions are produced” (Boyd et al. 1996, p. 846). This work underscores the role officer discretion plays in categorizing criminal incidents as hate crime. Most recently, Nolan & Akiyama’s (1999, 2002) work on the reporting requirements of hate crime law also suggests that officers vary immensely in terms of their willingness and ability to determine if and when an incident reaches the level of a hate crime and that many of these differences can be attributed to organizational factors. They identify more than 60 variables that act as encouragers (i.e., driving forces for police participation) or discouragers (i.e., restraining forces inhibiting police participation) (Nolan & Akiyama 1999). Not surprisingly, one of the encouragers is supportive organizational policies, which references “the degree to which the organization’s policies support hate crime reporting, including formal and informal

systems for recognition and rewards” (Nolan & Akiyama 1999, 2002). Corroborating this view, Balboni & McDevitt’s (2001) research on factors affecting hate crime reporting among law enforcement personnel and across law enforcement agencies lead them to conclude that “although individual officers may have differing opinions about the nature of the crime, if there is a policy about how to proceed with a hate crime investigation, officers will respect that policy” (Balboni & McDevitt 2001, p. 15; see also Grattet & Jenness 2007). Many of the empirical findings presented thus far are corroborated in the only published book on the enforcement of hate crime. In Policing Hatred, Bell (2002) relies upon ethnographic observations, interviews, police records, and media accounts to examine how a specialized detective unit, the Anti-Bias Task Force (ABTF) in Center City (an anonymous U.S. city), enforces hate crime law. In the process, she documents how the organizational history and structure of the ABTF, as well as the community in which it resides, determined the range of possibilities for the development of hate crime policy and the enforcement of hate crime law. More than any other published work, Policing Hatred explains how hate crime comes into being at the hands of those working the front lines of the criminal justice system in the context of a highly charged institutional environment, organizational structure, and community context. To understand how police departments throughout a particular polity develop and implement hate crime policy at the local level, Jenness & Grattet (2005) focused on California as a case study to examine the differential development of hate crime policy across hundreds of city police and county sheriff departments [see also Wilson & Ruback’s (2003) work on law enforcement throughout Pennsylvania]. Jenness & Grattet (2005) draw on original data collected to examine the characteristics of law enforcement agencies and community structures that best predict why some local police and county sheriff agencies have adopted hate crime www.annualreviews.org • Hate Crime Law

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policies and others have not done so more than 20 years after the State of California adopted a criminal hate crime law. They present logistic regression models that suggest that “organizational perviousness”—by which they mean law enforcement agencies’ susceptibility to environmental influence and organizational alignment with the innovation (i.e., policy)—is the strongest predictor of crime control policy adoption at the law enforcement agency level. In a follow-up article, they present an empirical “genealogy of law” that explains variation in the content of hate crime policy across hundreds of law enforcement agencies in California with reference to large processes of institutionalization (Grattet & Jenness 2005). In sum, studies of the enforcement of hate crime law paint an empirical portrait of how hate crime law is being enforced in distinct contexts across the United States. They demonstrate that officers use discretion when defining what does and does not qualify as a hate crime; that the social organization of policing as well as the structural composition of the communities in which hate crime law is enforced are consequential for how officers enforce hate crime law; and, most importantly, that there are significant differences in how the policing of hate crime unfolds across types of police personnel, policing units, jurisdictions, and polities (see also Haider-Markel 2004, Wilson & Ruback 2003). With regard to the latter, for example, McVeigh and colleagues (2003, 2006) used variation in countylevel hate crime reporting across the United States as a measure of social movement success across the United States, thus moving the study of hate crime policing beyond the study of criminal justice.


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DISCUSSION AND CONCLUSION Despite humanity’s well-documented, lengthy history of violence directed at minorities, only in the late 1970s and during the 1980s and 1990s in the United States did 154

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multiple social movements begin to identify and address the problem of discriminatory violence directed at minorities. Federal, state, and local governments instituted task forces and commissions to analyze the issue; legislative campaigns sprang up at every level of government; new sentencing rules and categories of criminal behavior were established in law; prosecutors and law enforcement developed special training policies and specialized enforcement units; scholarly commentary and social science research exploded on the topic; appellate courts, including the U.S. Supreme Court, weighed in with analyses of the laws; and the media disseminated images of hate crime in the United States with newfound frequency. As a consequence, criminal conduct that was once undistinguished from ordinary crime has been parsed out, redefined, and condemned more harshly than before. To quote Maroney (1998, p. 564–56), “An extraordinary amount of police, legislative, judicial, scholarly, and community activity around hate crime in such a short period of time—less than two decades—is the result of an emerging social movement against hate crime.” As a result of this movement, “violence that once was tolerated increasingly was viewed as extraordinary, aberrant, and intolerable” (Maroney 1998, p. 568). Now, hate crime has secured a place in the American social, political, and legal landscape as an anti–hate crime social movement that has infiltrated multiple policy and institutional arenas with discernable consequences for the operation of the criminal justice system. A plethora of state and federal laws and the pursuit of some types of criminal incidents as hate crime reflect many advocates’, politicians’, and state officials’ commitment to using the law, law enforcement, and the criminal justice system as a vehicle to enhance the status and welfare of minority constituencies deemed differentially vulnerable to violence motivated by bigotry. Despite variation in their wording and content, criminal, civil, and regulatory hate crime laws


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(further) sanction activities motivated by bias toward individuals or groups because of their real or imagined characteristics. Indeed, the laws and law enforcement practices described in this review derive from a successful anti– hate crime movement. The laws are best seen as a new state policy action, by either creating a new criminal category or civil cause of action, altering an existing criminal or civil law, or enhancing penalties for select extant crimes when they are committed for bias reasons. As such, they provide the criminal justice system, especially law enforcement agents and prosecutors, with a mandate to pursue bias-motivated violence in a new way. That mandate, while unevenly pursued, nonetheless has been revealed in the adoption of law enforcement policy, the establishment of special training for law enforcement officers, the identification and recording of hate crime, and, on rare occasions the successful prosecution of hate crime in the United States. The United States is not alone in experiencing this shift.6 Hate crime has diffused across international borders as various Western countries, especially those sharing a predominantly English speaking culture, appropriate and deploy the concept to reference bias-motivated conduct in their respective legal and cultural milieu. Britain, for example, has passed a series of laws designed to curb racial-ethnic violence, including in 1994 a clause in the penal code that allows for stiffer sentences if a crime is committed against a person as a result of the person’s race, color, national or ethnic origins, religious beliefs, or some other similar circumstance (Ross 2006). Australia has outlawed at the federal, state, and territory levels words and images that incite

6

Quite apart from the U.S. context and certainly prior to the types of socio-political and institutional changes detailed in this review, other countries have lengthy histories of using law to combat bigotry, especially racial and antiSemitic hatred. For example, going back as far as 1948, Swedish law has contained provisions designed to curb incitement of racial and anti-Semitic hatred in spoken or ¨ 2000). Likewise, Germany written communication (Lo¨ ow criminalized incitement to racial hatred in 1960.

hatred toward particular groups of people. Relying on discrimination law, Australian legislators have outlawed conduct that constitutes “vilification” or “racial hatred” (Cunneen et al. 1997, Hennessy & Smith 1994). Right next door, New Zealand’s Human Rights Act of 1993 identifies “inciting racial disharmony” as an offense; specifically, it states that an offense is committed when words are publicly said or written “with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the color, race, or ethnic origins of that group” (Ross 2006, p. 31). As a final example, Germany has passed laws that forbid “public incitement” and “instigation of racial hatred,” including the distribution of Nazi propaganda or literature liable to corrupt the youth. Unlike the United States, other countries have adopted a fairly limited view of hate crime, focusing primarily on racial, ethnic, and religious violence, and still other countries— mostly in the non-Western world—have not adopted the term to reference racial, ethnic, religious, or any other forms of intergroup conflict. As both a legal and social concept, hate crime has traversed diverse institutional domains as it has found a home in the United States and abroad. Activists and social movement actors, legislators and other policy makers, judges and the judiciary more generally, law enforcement agencies and agents, and the media alike have put an imprint on hate crime as anti-hate measures have been institutionalized during the latter part of the twentieth century. How these measures are deployed and the conditions under which they evoke and produce discernable consequences within and outside the criminal justice system is the outgrowth of a lengthy process that begins with the invention of the term, includes the social construction of meaning surrounding the term in various institutional contexts, and ends with the invocation of state authority to enhance punishment for those who manifest bigotry as criminal behavior in general www.annualreviews.org • Hate Crime Law

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and a violation of civil rights more particularly. Seen in these terms, the study of hate crime proper is less about specific types of human conduct and is more about a uniquely modern social and legal invention that is shaped by modern politics of victimization and the varying contexts in which hate crime law has

been envisioned, constituted, operationalized, and deployed. To quote Cogan (2002, p. 173), hate crime signifies “a crime category worthy of policy attention,” one that represents a profound shift in how America responds to crime connected to historic and contemporary inequalities.

DISCLOSURE STATEMENT Annu. Rev. Law. Soc. Sci. 2007.3:141-160. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/10/07. For personal use only.

The author is not aware of any biases that might be perceived as affecting the objectivity of this review.

ACKNOWLEDGMENTS I wrote this review while in residence as a visiting scholar at the Center for the Study of Law and Society at the University of California, Berkeley. Thus, I thank the center for providing a hospitable and intellectually rich environment in which to write. I also thank Lynn Pazzani for research assistance with this review and Ryken Grattet for collaborating with me on work on hate crime law for more than a decade—a collaboration that greatly informs this article.

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Restorative Justice: What Is It and Does It Work? Carrie Menkel-Meadow Georgetown University Law Center, Washington, DC 20001; email: [email protected]


Key Words


reconciliation, reintegration, community, victims, offenders, criminal law, crime and punishment, human rights, reparations, international law


Abstract This article reviews the now extensive literature on the varied arenas in which restorative justice is theorized and practiced—criminal violations, community ruptures and disputes, civil wars, regime change, human rights violations, and international law. It also reviews—by examining empirical studies of the processes in different settings— how restorative justice has been criticized, what its limitations and achievements might be, and how it might be understood. I explore the foundational concepts of reintegrative shaming, acknowledgment and responsibility, restitution, truth and reconciliation, and sentencing or healing circles for their transformative and theoretical potentials and for their actual practices in a variety of locations— family abuse, juvenile delinquency, criminal violations, problemsolving courts, indigenous-colonial-national disputes, ethnic and religious conflicts, civil wars, and liberation struggles. Restorative justice, which began as an alternative model of criminal justice, seeking healing and reconciliation for offenders, victims, and the communities in which they are embedded, has moved into larger national and international arenas of reintegration in political and ethnic conflicts. This review suggests that there are important and serious questions about whether restorative justice should be supplemental or substitutional of more conventional legal processes and about how its innovations suggest potentially transformative and challenging ideas and “moves” for dealing with both individual and group transgressive conduct, seeking peace as well as justice.

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INTRODUCTION: CONCEPTS, DEFINITIONS, AND PURPOSES OF RESTORATIVE JUSTICE


To its conceptual and practical founders (John Braithwaite, Howard Zehr, and Mark Umbreit, among others), the field of restorative justice is an effort to transform the way we think of punishment for wrongful acts. When a crime or serious bad act (which may include more classes of activity than those legally labeled criminal) occurs, it affects the victims, offenders, interested bystanders (such as family members, employees, or citizens), and the larger community in which it is embedded. To paraphrase one of the field’s founders (Zehr 2002, Zehr & Mika 1998), these bad acts or ruptures in human interaction create needs and responsibilities for the direct participants in the act, as well as for the larger society in which their act(s) occur. Restorative justice is the name given to a variety of different practices, including apologies, restitution, and acknowledgments of harm and injury, as well as to other efforts to provide healing and reintegration of offenders into their communities, with or without additional punishment. Restorative justice usually involves direct communication, often with a facilitator, of victims and offenders, often with some or full representation of the relevant affected community,1 to provide a setting for acknowledgment of fault by the offender, restitution of some sort to the victim, including both affective apologies and material exchanges or payments, and often new mutual understandings, forgiveness, and agreed-to new undertakings for improved behaviors. In its most idealized form, there are four Rs of restorative justice: repair, restore, reconcile, and reintegrate the offenders and victims to each other and to their shared community. Restorative justice raises deep philosophical, sociological, and empirical issues. The philosophical literature focuses on the pur-

1

The notion of what the community is in restorative justice is one of some controversy (Weisberg 2003).

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poses and nature of wrongdoing and punishment (Gabbay 2005, Blumenson 2006) and is only briefly reviewed here. At both the philosophical and sociological level, restorative justice raises important questions about who should have power, control, and possession over crime, acts of wrongdoing, punishment, restitution, reconciliation, and community interests (Christie 1977, Menkel-Meadow 1995, Von Hirsh 2003). When an act of wrongdoing is committed, who has an interest in its rectification: the victim, the community, the offender, those affected by the act, or the larger society? Who decides what justice is: the victim (who might want vengeance or restitution), the state (who will want to deter future crimes and acts of wrongdoing, set precedents for others, and establish social control), or the community in which the wrongdoing is embedded (where motivations may vary from revenge to the desire to reclaim every community member)? Who has the power to forgive and accept restitution or reconciliation: the victim, the victim’s family, the community in which the wrong occurred, or the state? What if acts of wrongdoing affect both individuals and a larger community, such as hate crimes or genocides? If crime or other acts of wrongdoing are a collective hurt or tear in the social fabric, can individuals forgive on behalf of anyone besides themselves? Are crime victims adequate proxies for the rest of a society that may define justice differently (more harshly, less harshly)? How are we to know what the proper unit of analysis is for measuring appropriate forms of punishment or restitution? What is the proper balance between victim-offender reconciliation, community peace, and social order or justice? (Similar issues have been raised in the civil sphere of dispute processing; see Menkel-Meadow 1995, 2006.) How should we integrate both the public and private aspects of crime and wrongdoing? Should right-making of wrongdoing be backward facing (punishment and legal justice) or future facing (reconciliation, restoration, and social justice)?


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Whatever one’s views on these important philosophical and criminological issues, the question remains: Does restorative justice work? Does it meet its own claims of reduced recidivism, restored communities, and reintegrated offenders? Is restorative justice more efficient (less costly, more deterrent, more restitutionary) than more conventional forms of punishment? Is it more fair or just (as perceived by participants or as analyzed by external, objective, and professional measures of these illusive concepts)? This article reviews the extant findings, which do demonstrate some support for restorative justice claims, while also raising questions about the (limited) conditions under which restorative justice may be most effective. The next major issue of evaluation in the field is whether even successful victim-offender restorative justice can be scaled up to national levels of political and civic reconciliation, either through truth and reconciliation–like processes or through reparations (Bradford 2005, Brooks 1999, Brophy 2006). Restorative justice as a social practice and movement began, in its modern incarnation, in the 1970s as a response to what was considered to be an overly harsh criminal justice system that neither effectively deterred crime nor successfully rehabilitated offenders. Championed by social workers, progressive criminal treatment professionals (including police officers and prison reformers), some lawyers and judges, psychologists, and community and peace activists, restorative justice was practiced first (Lerman 1999), and theorized later, most eloquently by John Braithwaite (1989, 1995, 1999, 2002, 2003, 2006). Restorative justice proponents suggested that by providing structured environments in which offenders and victims met and explained their injuries and hurts to each other, offenders could acknowledge and explain their bad acts, apologize, and make restitution to victims who could forgive and feel safe again. With family members or community representatives present, there would be public accountability, an inquiry into root causes of criminal

or wrongful acts, and, at its best, suggestions for creative, tailored solutions. Restitutionary possibilities would emerge from facilitated dialogue. Through structured shaming (Kahan 1996, 2006; cf. Markel 2007), responsibility taking, and acknowledgment of injury done, offenders might be effectively reintegrated into their communities, and victims would no longer be frightened or traumatized by what had happened to them. From the beginning, restorative justice practices were intended to heal at both the individual and group or social level. Attention in both practice and theory was placed on healing those directly affected by a crime or bad act and on institutional and social reform. At its most aspirational or utopian, restorative justice has been seen as a potentially transformative social practice that could, under the right conditions, obviate the need for harsh criminal punishment and incarceration. In this conception, restorative justice was linked as a social movement to community organizing, criminal justice and prison reform, the civil alternative dispute resolution (ADR) movement (Menkel-Meadow et al. 2005), and the peace movement in that it sought alternative processes for different and more humane and tailored outcomes. In its more grounded and practical institutionalized forms, restorative justice was often supplemental, not substitutive, to conventional criminal proceedings. In an early core definition of restorative justice, it is a “process that brings together all the parties affected by an incident of wrongdoing to collectively decide how to deal with the aftermath of the incident and its implications for the future” (Marshall 1998, Roche 2004). Although some think restorative justice is most appropriate in the context of small, interpersonal wrongful acts, such as petty thefts, simple assaults, drug- or alcoholrelated crimes, and family abuse, restorative justice has been adapted for cases involving murder, rape, genocide, and other serious transgressions against large groups or even a whole society (Umbreit et al. 2005, Wellikoff 2004). It has also been used effectively as

www.annualreviews.org • Restorative Justice: What Is It and Does It Work?

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a model for pre- or nonlegal disputes in schools, organizational and corporate conflict management, neighborhoods, communities, and families (Llewellyn & Howse 1998). What began as a domestic social reform movement (simultaneously developed in Australia, New Zealand, Canada, the United States, the Netherlands, Austria, and others), restorative justice and its basic principles became a process of international interest when Desmond Tutu (1999) led a truth and reconciliation process to transform and heal South African society’s transition from apartheid to a just, multiracial society. Variations on indigenous [such as Rwandan gacaca (Honeyman 2004, Bolocan 2004, Raper 2005) and Ugandan mato oput (Blumenson 2006)] and newly minted restorative processes (Avruch & Vejarano 2001) have now been used in more than 25 national efforts to move more peacefully through political, racial, ethnic, and civil wars and transitions to more peaceful, democratic, and just states. Restorative justice principles thus helped form a new field of international law and political structure: transitional justice (Teitel 2000). Restorative justice has several foundational concepts that have now been elaborated and extended to many arenas of social and political interaction:


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Personalized and direct participation in a process of speaking and listening of both a wrongdoer (offender) and a victim of an act of wrongdoing; Narration of what an act of wrongdoing consisted of and the harm or injury it caused to those affected (including both direct victims and often others, including bystanders and the larger community); Explanation by the offender of what was done and why; Acknowledgment and acceptance of fault for the wrong committed by the offender with recognition of the harm caused (with apology, if not coerced); Opportunity for appreciation or understanding of why the wrong occurred

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(root causes) and, in some cases, forgiveness of the individual, without forgetfulness of the act; Consideration of appropriate outcomes or restitution to those wronged by all participants, including victim, offender, family members, and/or larger community, often with expert facilitation; Reintegration of the wrongdoer into the larger community, through apology, restitution, and/or support and social services provided (alone or in conjunction with formal punishment as well); Reconciliation of wronged and wrongdoer, within a renewed commitment to shared social norms (often reconstituted within the restorative process); An orientation to the wrongdoer that treats the act separate from the person so that the person may be redeemed as the victim/community is repaired; An orientation to the future, to the extent possible, to make right what was wrong and to rebuild new relationships and new communities.

These foundational concepts come from a belief that conventional legal processes (criminal, international tribunals, and even civil processes) are often ineffective in their bureaucratic separation of offender from the actual consequences of acts, in the timing of any remedial actions (delayed incarcerations or other punishments), and in the inattention to the personal nature of the wrong (both for rehabilitation of the offender and restitution of the particular harm suffered by the victim), not to mention in their failure to deter or reduce crime. Restorative justice hopes to harness the commission of wrongful acts to the making of new opportunities for personal, communal, and societal growth and transformation through empowerment of both victims and offenders in direct and authentic dialogue and recognition. It also hopes practically to reduce recidivism and reintegrate wrongdoers into more positive roles and relationships.


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At the theoretical level, most proponents of restorative justice claim that such processes reclaim the property of the crimes or conflicts from their ownership and mismanagement by the state (Christie 1977) and return them to the victims and offenders whose lives are most affected. As with the civil ADR movement, restorative justice proponents claim that outcomes can be creatively tailored to meet the requirements and needs of the situations and the parties. Thus, there will be higher rates of compliance and greater satisfaction with the process itself, encouraging belief in its legitimacy and its ability to rectify wrongs and repair broken or harmed social relationships. Restorative justice is designed to remove negative stigmatization of the individual and replace it with recognition of the wrongfulness of an act, with shaming of the act, and with reintegration of the person (Braithwaite 2002; Strang 2001, 2004). As an ideology and as a practice, restorative justice often appeals across the political spectrum, with liberals seeking criminal justice reform through personalized treatment, compassion, and understanding for socially disadvantaged offenders, and conservatives approving of offender accountability, responsibility, and restitutionary payments to victims (Barnett 1977). When it works most effectively, restorative justice enhances participatory and deliberative democracy and can promote community building, political legitimacy, and the development of new social and legal norms. Progressive theorists and practitioners see in restorative justice another form of participatory deliberative democracy; conservative theorists see devolved and localized governance for crime control. Although there are many contested theoretical and practical issues in the uses of restorative justice at its different levels (personalistic wrongs, less serious crimes, serious crimes, state crimes, crimes or wrongs against humanity) that are reviewed below, recent scholarship (Strang 2004, Johnstone 2003, Roche 2004, Strang & Braithwaite 2000, Minow 1998) on these issues has en-

abled a relatively coherent set of issues, research questions, and objections to be developed across levels of analysis and uses of restorative processes. Such issues include: 1. Whether restorative justice processes are effective in meeting their own claimed advantages, such as reduced recidivism rates; increased rates of reintegration to a nonoffender life; movement toward reconciled, postconflict societies; 2. Whether victims feel coerced or blackmailed to participate, forgive, forget, and forego (desires for revenge or other retributivist goals) (Acorn 2004, Brown 1994); 3. Whether offenders feel coerced to confess, apologize, and waive the rights of the criminally accused (Dolinko 2003, Delgado 2000, Brown 1994); 4. Whether restorative processes—like other alternative processes that focus on direct, but informal, narrative— privilege some (the articulate, the verbal) and disadvantage others [the less verbal; the racially, gendered, or class-based disadvantaged (Young 1990, 2000; Daly 2002, 2005; Cahn 2006)]; 5. Whether certain classes of wrongdoing should never be submitted to restorative processes, e.g., serious crimes such as murder, rape, or wrongdoing in which society as a whole, not just individuals, is affected, such as genocide or hate crimes (Robinson 2006, Rugge & Cormier 2005); 6. Whether particular wrongdoers or offenders (or victims) should be excluded from restorative processes, e.g., repeat offenders, the mentally impaired, those who are remorseless; 7. Whether psychological or socially based communication technologies at the individual level are effective for macro institutional, national, and larger social problems; 8. Whether restorative justice can or should substitute entirely for state and


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formal criminal sanctions and punishments or whether it should be a totally informal and voluntary supplementary process; Whether restorative justice is more economically and criminologically efficient (less costly, more deterrent) than conventional criminal justice methods; Whether a focus on future remediation or right-making diminishes important concerns about blame for past wrongs (Menkel-Meadow 2004, Grillo 1991); Whether individualized forms of restorative justice can meet the requirements of equity-based justice or equality when similarly situated offenders are provided with differential outcomes (Robinson 2006); Whether privatization of justice in the criminal context (whether individual or at larger state levels) deprives us of the public function of courts, tribunals, punishments, and precedentsetting (Luban 1995); Whether private criminal justice can operate within the shadow of the law, with both the potential coercion of the state as a threatened alternative, or as a weak substitute where there is no formal law enforcement (international criminal law); Whether participation in restorative justice procedures enhances both individual and communitarian sensibilities for empowerment, fairness, legitimacy, satisfaction, and social justice; Whether restorative justice is a spiritual, utopian project, with a faith in human ability to be transformed, at both individual (Katz 1990) or group levels (Gibson 2004a), and whether it can be harnessed to practical, institutional, large-scale social and legal change.

This article reviews the claims made for restorative justice and the difficult and compelling issues raised by its use and offered by its critics to discount its achievements and possibilities. I begin by recounting some of 166

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the history of restorative justice in its various forms, with its differentiated claims. I then explore some of the most trenchant critiques that have been made of restorative justice at philosophical, social, political, jurisprudential, and practical levels. Next, I report on what we know to date about how restorative justice actually works from a variety of empirical sources, including several meta-analyses performed by others. Finally, I suggest what issues and challenges lie ahead for both the use and assessment of restorative justice efforts in individual, community, national, and international efforts to deal effectively with humaninflicted harm.

FORMS AND MODELS OF RESTORATIVE JUSTICE Although in one sense restorative or restitutionary justice is as old at least as the earliest forms of classical justice in Greek, Arab, and Roman legal culture (Braithwaite 2002), modern restorative justice traces its origins to objections to both retributivist and failed rehabilitative models of criminal law and punishment. Victim control of the prosecution of wrongful acts was a common practice before the modernization of the criminal justice system in the late Middle Ages in Europe (Langbein 2003) relocated the management of crime from private citizens to the state. State control of crime developed to provide revenue for the state (in fines and punishments) and more order and control (and equity) in the treatment of offenders. State control of criminal acts was also a product of the fear of vigilante or vengeance motives on the part of victims, which actually perpetuated violence, as needs for less bloodthirsty and more orderly outcomes were required, not only as religious, social, and humanitarian values evolved, but also to provide some predictability for the growing commercial society and increasingly centralized political order (Thompson 1976). Although fines and jail terms began to substitute for blood feuds in postmedieval Europe, elements of violent


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retributivist and vengeance-seeking systems of justice continued to coexist with local restorative forms of community moots or mediation in many cultures. The history of criminal justice and punishment is one of increasing state control and surveillance (Foucault 1979), with concomitant increased costs of public institutions and public responsibility, with little demonstrated reduction of crime, violence, or antisocial acts (cf. Zimring 2006). The twentieth century was certainly the most violent of all centuries at nation-state, group, and individual levels, even with the modern criminal and penological apparatus that had developed by then. Aside from Anglo and middle European criminal justice models of punishment (incapacitation, incarceration, retribution, rehabilitation), other legal cultures have long focused on restorative, reparative, or restitutionary forms of justice, including community moots, wise elder mediation, religious forms of repentance and reparation, and various forms of communal conferencing (nanante, ubuntu, gacaca) in the Middle East, Africa, and Asia and peace circles in indigenous American (both North and South) cultures. All these forms of justice or dispute resolution involve some narration before victims, offenders, family members, supporters, community members, and leaders, with communally arrived at outcomes (fines of animals, crops, other goods, or money; reparative work; and often ritual ceremonies of healing and forgiveness, including the sharing of common food and drink, as well as dances, songs, and other expressive activities). Most reparative forms of justice were scaled to smaller communities where mobility for both offenders and the community was limited and continuing face-to-face contacts with community members were the norm. As state control embraced more social control of criminal offenders, both through formal legal processes and therapeutic intervention models, reformers began to experiment with new forms of handling (I never say managing) wrongdoing. In the early 1970s, both in Canada and the United States, contem-

poraneously with similar movements in civil and family law toward mediation, experimental programs in victim-offender reconciliation programs (VORP) or victim-offender mediation (VOM) (Umbreit 1994) were established alongside or within progressive court systems, some as diversionary programs for minor crimes, others as independent processes. By the mid-1990s, there were hundreds of programs in many states and provinces of the United States and Canada. These early programs focused on facilitated conversations of wrongdoers, victims, and family members both as supporters and as possible disciplinarians or enforcers. These programs sometimes served as alternatives to state prosecutions (dismissals if victims agreed and were otherwise made whole). VORP and VOM were often founded by social reformers, progressive criminal law professionals (including police, probation and parole officers, and social workers and some lawyers and judges), and, notably, by religious groups, such as the Mennonites, who brought their reparative philosophy to bear on all forms of conflict resolution (Zehr 1990, Lederach 1997). Some of the developments in the 1970s were sparked by First Nation practices in Canada (Stuart 2001) for “peace or sentencing or family circles” used both for internal wrongs committed within tribes and then later expanded to First Nation land and other disputes with the larger nation-state (Bradford 2005). These practices enlarged the notion of who was a proper participant or stakeholder in conflicts involving harm to other members of the community. A more flexible, tailored, and communitarian sense of justice or fairness, including group responsibility for bringing individuals back into the community, characterized many of these programs. “Healing or peace circles” of a variety of North American native groups, including the Navajo (Yazzie & Zion 1996), brought native practices to the attention of conventional court systems. Processes including “talking sticks” that rotate among participants and equalize who will talk (especially in leaderless groups) are radically


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different from legalistic and adversarial confrontations. The purpose of such conferences is often not to assess fault or guilt (with factfinding), although there is narration of what happened and why, because usually fault or guilt is admitted. The purpose of the circle or conference is to consider the best ways to make the victim whole or compensated and to consider various forms of treatment or reintegration of the wrongdoer. With the emphasis on remedial approaches (for both victims and offenders), considered from a collectivity (the community, tribe, family, or other representatives), power is not located in a single judge, and the norms that are referenced may be negotiated and interpreted for particular cases, with less emphasis on formal rules and standards. These processes have many variations, including referral back to courts if wrongdoers do not admit fault or victims are not satisfied with apologies or restitutionary offers when laws have been violated. In other cases, the state may defer to some other form of authority (Indian tribes, local law enforcement, etc.), provided there is full participant consent or other legal authorization. Perhaps the greatest and deepest impact of these new processes was seen in New Zealand, where family conferencing modeled on both traditional Maori and modern practices developed into a mandatory model for juvenile justice (Maxwell & Morris 1993). Here the movement represents collaboration among mainstream conservative and social democratic political parties, Christian profamily groups, and Maori philosophy and participation (Braithwaite 2002). In such family conferences, alternative structures to conventional adversary adjudication involve the juvenile offender, teachers, social workers, family members, victims, and others who jointly develop a package of restitutionary payments or service, apologies, and plans for future behavior, often in lieu of incarceration. In sentencing circles, a community group helps develop programs and proposals for compensating victims and preparing behavioral plans for amelioration of the conduct of the offender. Such pro-


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grams, of course, have their critics (see below), both for coercing compliance and also for reduction of criminal defendant rights in nations with strong civil liberties protections (Delgado 2000). There is also some evidence that, when used in smaller, homogeneous communities (which are felt to be more oppressive to some adolescents than the cold state), there is an increased risk of flight from the community (Marshall 1998). In the United States, the states making most use of these programs are Minnesota, Vermont, Wisconsin, Maine, New Mexico, Pennsylvania, and Montana, which employ various forms of victim-offender programs for juveniles and for postconviction, probation, parole, and “creative” sentencing. Less use is made currently at the federal criminal level because of determinate sentencing laws (Beale 2003), although in earlier periods, the federal courts varied by region in how they delivered tailored justice to particular offenders, with contrasting retributivist and rehabilitative goals (Utz 1978). A new development includes “problem-solving courts” (Kaye 1997, Berman et al. 2005) in which restorative and rehabilitative principles have made their way into the formal justice system, as specialized courts in drug offenses, vice, abuse, neglect, and other family issues have developed more reparative sentences, including personalized treatment programs, some elements of restorative shaming, and some structured encounter with victims, as well as regular reporting and accountability (e.g., drug tests) to the court itself (Dorf & Sabel 2000). Restorative justice programs are intended, in ideology, to be purely voluntary, but aspects of restorative justice have been co-opted into mandatory diversionary and formal court programs, raising questions of philosophical purity and efficacy and challenging efforts to measure the impact of these programs. Some models of restorative justice have been used in prisons, concurrent with and adjunct to formal punishment, and observers fear that some offenders may pay twice with formal criminal sanctions and demands for less formal


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restitutionary or shaming rituals that reduce their human dignity (Nussbaum 2004). Restorative justice processes can also be used following release, as conditions of parole or probation, connecting the offender to agreements with victims or the community for social service, compensation, or accountability for behavioral change. Although restorative justice is motivated by those seeking humanistic integration, it is easy to see how some restorative justice forms can appear oppressive, reducing freedom of action and individual agency and requiring intrusive surveillance and accountability that can devolve into counterproductive resentment. Restorative justice has, in recent years, informed a variety of other legal and political processes. John Braithwaite argues for its effectiveness as responsive regulation in matters of corporate and public policy regulation. When state regulators engage in negotiated conversations with managers of corporations and industries (such as nursing homes, trade groups, commercial enterprises), Braithwaite (2002) argues, compliance is greater and dialogues allow more realistic, flexible, and contingent enforcement of important legal standards (see also Hawkins 1984). Dispute resolution theorists and practitioners have argued that public and deliberative encounters in regulatory, civil, and criminal matters can be seen as a new form of governance, promoting healthy democratic deliberation that is more participatory, legitimate, and flexible in its legal and social problem solving when matters are openly negotiated with many stakeholders and when multiple issues and multiple parties are involved in the deliberations (Menkel-Meadow 2004, Elster 1995, Bohman 1996). In the 1990s, restorative justice practices moved outward from individual acts of wrongdoing to the systematic wrongdoing of civil and ethnic wars (by both intra- and international state and nonstate actors) and illegitimate regimes such as apartheid. The use of TRCs and similar public panels of encounters of victims and offenders and the

larger nation-state and international community has given rise to whole new institutions of justice (Avruch & Vejarano 2001, Minow 1998, Stromseth et al. 2006). These truth commissions are intended to provide a new national narrative as victims seek answers and information about their individual family members [what happened to the disappeared (Argentina, Chile), the murdered, or the incarcerated (Guatemala, Rwanda, South Africa)], as well as the truth about statesanctioned violence and harm (Sierra Leone, East Timor). As discussed more fully below, the challenge for these various and quite diverse TRCs has been to ensure participation by both victims and perpetrators, which in many cases is not a direct encounter as in more conventional criminal restorative justice practices, in settings where there is mostly talk or testimony and not real punishment or restitutionary relief. At the national or institutional level of restorative justice, the goals may be quite different than in more individualized acts of wrongdoing. The commissions are designed to heal the nation-state or civil community by allowing many narratives of hurt and harm to be told and by creating new collective narratives of the truth so that a society can begin anew with transformative understandings of both its past and its future. Like the use of restorative justice in more individual settings, the efficacy and effectiveness of these processes have been debated and questioned (see below), but these processes are clearly evolving and offer great promise of adapting to different political, cultural, and historical contexts and may ultimately transform our conceptions of international justice. As is more fully explored below, as scholars and political activists assess and debate their effectiveness, there are particularly rich encounters between the international human rights community (with rights-based conceptions of justice) and the international conflict resolution and peacekeeping communities (with more realist and pragmatic conceptions of postconflict regimes). Differences of theoretical


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paradigms, of assumptions about human behavior, of philosophies, and of commitments (such as to the rule of law or to pragmatic, informal actions of nongovernmental organizations) and practices may themselves have to be mediated to make these new forms of justice meet their aspirational goals, either alongside conventional legal structures (with conventional international or national prosecutions of the most serious atrocities) or as substitutes for them (in less serious cases in which redemption, reassimilation, or even co-optation of past aggressors may be possible or desirable for security and continuity of regimes). The newer forms of truth and reconciliation practices combine tiered systems of prosecution (for most serious crimes) and confession and restorative justice for less serious offenses (Honeyman 2004, Hayner 2001). Whether these alternative institutions are public or private is also a crucial issue. The South African TRC proceedings were televised to the whole nation, but virtually all of the Latin American commission proceedings (Argentina, Chile, and Guatemala) were privately conducted (even with publication of formal reports).


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CRITIQUES OF RESTORATIVE JUSTICE Most proponents of restorative justice appeal in visionary, optimistic, and aspirational terms for a new human sensibility to emerge from the transformative effects of dialogue, conversation, empowerment, and understanding, from individual juvenile offender advocates to architects of the most complex truth and reconciliation governmental processes or formal state institutions, such as problem-solving courts. The claims made on behalf of restorative justice are simultaneously instrumental, incremental, and grand:

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Restorative justice enhances understanding of the root causes of crime and conflict; Outcomes reached in restorative justice are more likely to be complied with;

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Restorative justice processes reduce recidivism rates; Restorative justice offers the possibility of reclaiming, repairing, and transforming individual wrongdoers and reintegrating them into productive activity; Participants in restorative justice processes are more likely to develop fellow-feeling, empathy, and a sense of moral responsibility, mutuality, and reciprocity; Restorative justice processes enhance community building, community norm development, and democratic participation by increasing the number of stakeholders who are involved in its deliberations; Restorative justice permits more real, less formal, less stylized or legal human communication and interaction, producing more authentic understanding; Restorative justice processes are richer at expressing a variety of often competing justice values simultaneously— acknowledgment of fault, recognition of consequences that flow from wrongful activity (punishment, remorse), compensation to victims, social learning and healing, mercy, as well as moral judgment—and are thus more creative and flexible and represent a form of responsive justice (Nonet & Selznick 1978) that is humanely civilized and not as brittle as formal adversarial justice structures; Processes using restorative justice values are more likely to engage individuals in voluntary commitments for undertakings to others and self and to encourage self-empowerment and self-esteem; The underlying values of restorative justice promote a positive redemptionist and ameliorative view of human behavior, with a positive hope that even the worst among us can be transformed to consider the common good and the best for other human beings;


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Outcomes produced by participatory restorative justice processes are more tailored to the specific needs of individuals, groups, communities, and nations; they can be bargained for with more nuance, detail, and accountability than those produced by formal and overbooked systems of justice;

Restorative justice is potentially less costly and more efficient both in monetary and deterrent effects than conventional penological practices;

If the principles of restorative justice were to gain ascendancy, the criminal justice system would be radically transformed (less punitive and more responsive), if not eliminated.

Since the practices of restorative justice in all of the forms described above have been developing and attempting to express these aspirational values, a core of critiques of restorative justice has emerged at different levels and from the perspectives of different disciplines. There are empirical claims that restorative justice does not meet its own claims (see next section) (Braithwaite 2002, Daly 2002, Van Ness 1993); philosophical and sociological claims that humans continue to carry base retributivist and vengeful motivations that are impervious to so-called transformative processes (Acorn 2004); legalistic claims that restorative justice unfairly coerces and manipulates its participants to forgive (victims) or confess and accept harsher terms (offenders) than legal rights and rules would permit in formal justice institutions and that restorative justice does not deliver equitable or equal justice (Dolinko 2003, Delgado 2000); anthropological critiques that concepts in restorative justice ideology are culturally specific and not universal (Avruch & Vejarano 2001) and that notions of community are social constructs and can be manipulated for bad ends (Weisberg 2003); and political claims that restorative justice processes will be manipulated, corrupted, co-opted, and deformed to produce oppression, more state surveillance

and discipline, and more inappropriate social control (Abel 1982, Levrant et al. 1999). In addition to these critiques, specific critics have suggested that, like civil ADR, restorative justice privatizes that which should be public (Luban 1995), prevents precedents and rule generation for community norm development, and hides its outcomes from measurement and evaluation. The location of restorative justice (whether in or alongside courts or as private conferencing sessions) problematizes the relation of the state to law enforcement and shared governance with private entities (a larger issue that clearly implicates more than restorative reforms in this age of public-private partnerships). Criminologists worry that restorative justice will lead to subjective, nonobjective, and nonrational assessments of harm and need and will produce great inequities for both victims and offenders. What is extremely painful to one victim may be tolerable for another. Whether victims receive recompense and restitution will depend not on the quality of the offense, but on the resources of the offender. Philosophers such as Nussbaum (2004) decry the potential degradation and loss of humanity that can come from compelled shaming. Acorn (2004) argues similarly about the effects of coerced compassion on the part of victims, who have been seriously harmed and are made to feel ashamed about their desires for punishment, vengeance, and retribution. In these claims, we see that the very promise of restorative justice to be more authentic has the potential to be less authentic than other forms of structured and rule-based discourse because of its compelled or expected narratives. When the harm is not only personal but social, how can the offender satisfy the needs of the community for rectification and safety with a simple (even if authentic) apology (Robinson 2003, 2006)? Within the restorative justice movement itself, practitioners and theorists have their own worries (Braithwaite 2002, pp. 137– 68) that offenders may be stigmatized in a different, but harmful, way than they are


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stigmatized in formal court proceedings; that victims can feel revictimized in their retelling of pain or injury suffered [comparable to the rape victim’s dilemmas in the formal adjudication system (Matoesian 1993)]; that oppressive or false communities in societies that are actually heterogeneous will attempt to impose their own values on participants in the process; or that even with community homogeneity more conservative or majoritarian values may gain ascendancy and dampen individual freedoms (Weisberg 2003). Although conceived as a part of a progressive movement for social justice, the appeal of restorative justice to the Christian Fundamentalist Right in the United States has caused some to be concerned about whether restorative processes will be used for antiprogressive ends (imposing conservative, antiliberationist, narrowly religious, or monocultural values). Or, with less conservative ends, governments may simply co-opt such processes to achieve their ends (diversionary programs, docket clearing, more social control and surveillance devolved to nonstate actors) and thus routinize and make less authentic the human encounter and engagement contemplated by restorative justice proponents. Like civil forms of ADR in such processes as consensus building, collaborative governance, negotiated rulemaking, and multi-agency mediation, some worry that the separation of powers and accountability in constitutional governments will be obscured and made difficult to monitor. Lawyers, in particular, worry about how informal processes, while serving some ends of responsive and flexible justice, can erode other important values—individual civil rights, standards for convictions, rights of appeals, written opinions, and accountability of decision makers. Feminists have been strong critics (and proponents in other contexts) of restorative justice models that decriminalize violence against woman and seek lesser punishments and no incarceration for wrongful acts that have only recently achieved some form of legal recognition (Daly 2005, Stubbs 1995). Practitioners worry that processes that are struc-


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tured around dialogue and narrative (Young 2000) may privilege the verbal and well educated and disempower those without education or other resources. And others worry that restitution commodifies crime and wrongdoing by allowing offenders to buy their way out if they can (Kahan 2006). Imprisonment, at least in theory, is a great equalizer in incapacitation. Finally, restorative justice requires wellintentioned, nonmanipulative participants and sufficient resources to allow authentic encounters and dialogue to occur. Thus, even for some proponents of restorative justice, there is a fear that restorative justice can only work with large commitments of time, resources, and skilled individuals and must necessarily be deformed and watered down to ritualized imperfections if it is assimilated, aggregated, and institutionalized without sufficient care and resources.

EMPIRICAL ASSESSMENTS OF RESTORATIVE JUSTICE: DOES IT WORK? There are many challenges in assessing the claims of both proponents and critics of restorative justice at the conceptual and methodological levels. Most importantly, as in assessments of all comparative forms of justice or legal case processing, including civil dispute resolution, it is virtually impossible to conduct controlled experiments or treatments of submitting the same matter to different treatment conditions for comparison. In both criminal justice matters and larger conflicts, ordinarily there is only one treatment of the matter or, if several treatments are used, the treatments are used for different purposes or at different times [such as use of VOM for remedy but not guilt assessment, triaging, or grading of crimes against humanity that are assigned to formal prosecution or more restorative processes, such as gacaca in Rwanda (Bolocan 2004)]. So, although a few controlled studies are emerging in which there is random assignment of cases


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to either restorative justice or more conventional models of process, the bulk of empirical evaluations of restorative justice efforts focus on aggregate comparison data, with attempts at matched cases or data sets of different forms of treatment or intervention. Examples include efforts to assess (a) comparative compliance rates with agreements or judgments; (b) satisfaction rates for victims, offenders, professionals, and the larger community with different processes and outcome possibilities; (c) reoffender or recidivism rates; (d ) reduction of violence generally [community measures beyond those of participants in the process (Zimring 2006)]; and (e) in the case of TRCs, whether postconflict societies build efficacious systems of governance with legitimacy, compared with societies that have not used such processes (Stromseth et al. 2006). The second challenge is to define and operationalize the meaning of variables assessed. As several new meta-analyses have shown, over the course of many years of study, such variables as reoffense rates vary enormously from study to study, thereby greatly confounding analysis. In some studies reoffense is measured in short time intervals (six months), in others longer (up to two years or more). Some studies cut finely and look at degrees of severity of offense (simple and single property offenses, simple to repeated assaults), and others look only at whether there is a subsequent conviction or, quite differently, simply another arrest. Because it is easiest to measure, with exit interviews or follow-up methods, the most common factor studied is a crude measure of satisfaction with the process (and/or outcome), tracking the now rich and robust findings of procedural justice attitudes (MacCoun 2005, Thibault & Walker 1975). These findings demonstrate that the processes generally favored are informal processes that give participants voice and that have some cathartic effect in response to the dispute or act of wrongdoing. And these informal processes are favored even when parties lose (or do not gain much) in outcomes. Here

again, the comparisons are analogical, rather than experimental. Aggregate studies compare satisfaction rates of those who have used the conventional justice system with those who have attended some alternative process (Kakalik et al. 1996, Lind et al. 1989), but it is virtually impossible for the same participant to compare treatment in the two types of processes in the same case, leaving open the possibilities that case factors and other variables may account for process satisfaction. For example, in one of the most rigorously designed tests of comparative civil case processing, LaFree & Rack (1996) found that race and ethnic matching of thirdparty neutrals (whether mediators or judges) with participants (Anglo-white, Hispanic, or African American) accounted for some of the comparative satisfaction rates of disputants (and also explained some of the variance in outcomes in the two processes, mediation or adjudication). At the level of assessing the more ambitious truth and reconciliation or societal restorative processes, measurements are even more complex and difficult to assess. Should individuals be polled about satisfaction (those who have participated and those who have not)? Is it possible, as some political scientists have attempted, to compare rates of internal conflict and civil wars over time and between nation-states and also to measure aggregate levels of international conflict (Stein 1993) when different conflict resolution processes are used? As the growing literature on TRCs and postconflict interventions indicates, there are great variations in the purposes, structures (direct or indirect encounters and testimonies, amnesties or punishment, types of matters subject to informal processes, publicity and accessibility of such processes, location, type of third-party interventions or facilitations), and functioning of these innovations in justice. Comparisons across widely different political, social, and cultural contexts may be quite difficult. Despite these methodological problems, the emerging data often provide not only


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confirming or disconfirming information about the claims and hypotheses about restorative processes, but also, in some cases, information about new and perhaps unintended effects of such processes, such as Gibson’s (2004a,b) findings on the development of human rights consciousness among those who viewed (on national television) the South African Truth and Reconciliation process, even if they did not participate directly (see below). Here I present an overview of what studies to date have revealed about how restorative justice is working or is perceived to be working, in a variety of locations, with great variations in purpose, structure, and use. The greatest claims for restorative justice, in its most conventional forms in criminal justice—that it creates greater compliance with agreements or judgments, reduces imprisonment (and therefore costs to the system), provides greater satisfaction for both victims and offenders, and reduces recidivism rates—have all been substantiated in a variety of different studies on at least three continents (North America, Australia and New Zealand, and Europe), despite methodological difficulties in almost all settings. Comparisons between systems (restorative and conventional-retributivist) are difficult when the participants do not engage in both types [and satisfaction rates with informal processes tend to be high, whether in civil cases (mediation, arbitration, or other forms of ADR) or criminal cases (see Lind et al. 1989, Kakalik et al. 1996)]. Some studies focus on participation rates, noting that even when referred by courts (in less than voluntary settings) many offenders choose to admit guilt and attend mediation with their victims. (In virtually all court programs, defendants who do not admit guilt and instead seek trial are not referred to VOM. Thus, how voluntary a guilt admission is remains a worrisome issue.) Participation rates for victims range from 40% to 60% of those referred. Interestingly, participation rates for victims go up when more time elapses be-


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tween referral and participation in cases involving personal injury (assault), but decrease when more time elapses in cases involving property (theft, vandalism) (Umbreit et al. 2005). There is a curvilinear relationship for participation rates of victims and the seriousness of the offense, with participation rates lowest for less serious offenses (“I can’t be bothered”) and for the most serious (fear of the offender or reliving the trauma in serious bodily harm cases) (Coates & Gehm 1985, Wyrick & Costanzo 1999). Many studies have demonstrated high satisfaction rates on the part of both offenders and victims who feel they were treated better in restorative justice processes than in the criminal justice system (Poulson 2003, reviewing 7 selected studies out of 100 on psychological outcomes of restorative justice), often with satisfaction rates greater by a factor of 3 to 4. Studies in such diverse locations as Bethlehem, Pennsylvania (McCold & Wachtel 1998); Brooklyn, New York (Davis et al. 1980); Canberra, Australia (Strang et al. 1999, Strang 2001); Israel (Umbreit & Ritter 2006); a multi-state U.S. study (Umbreit & Coates 1992, Umbreit et al. 2001); Canada (Umbreit 1995); and the United Kingdom (Umbreit & Roberts 1996, Marshall & Merry 1990); along with meta-analysis of multiple studies (Latimer et al. 2001), with diverse sets of victims (female, young, old, low and middle socioeconomic classes) and offenders (most, but not all of the studies focus on juvenile offenders, with increasing attention to adult offender programs as restorative justice practices expand) all find that victims have satisfaction rates higher than what they had expected to gain from a process following injury and harm. Offenders are much more likely to feel they have been treated fairly. Offender satisfaction rates with restorative justice compared with court processes tend to be higher than victims’ satisfaction (typically because, in minor offenses, participation in restorative justice proceedings may eliminate other forms of punishment, including incarceration, although in some programs offenders might


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have had their cases totally dismissed in a more conventional setting). Both victims and offenders report satisfaction with their ability to narrate and explain more fully both the harm and injury that wrongdoing caused in particular circumstances and the reasons for committing bad acts. On the victim side, there is a slightly lower perception that their opinions were taken more seriously in restorative justice than in court, compared with offenders (Poulson 2003). And, in an important and rigorous analysis in Australia, victims whose restorative justice proceedings were badly handled or did not take place were the least satisfied [less satisfied than court users and participants in more successful restorative justice proceedings (Strang 2001)]. Thus, the quality of the restorative justice process may be especially important when there are high expectations about what it can accomplish. Participants generally expressed satisfaction with the fairness of mediators or third-party facilitators over judges [by a factor of 2.3 for victims and 6.0 for offenders (Poulson 2003)]. Victims have been satisfied with what they perceive to be greater accountability in restorative justice (Poulson 2003), and, not surprisingly, victims were more likely to forgive the offender in restorative justice processes than in court proceedings, probably because offenders are much more likely to apologize [6.9 times more likely according to Poulson’s (2003) meta-analysis] than in court proceedings. Since the beginning of the 1990s, researchers have attempted to track compliance rates with reparation and compensation agreements. Although many argue that restorative justice does not require an agreement but rather seeks understanding and dialogue, studies document that agreements for some sort of restitution are highly likely to occur [more than 90% in VOM programs in which there is face-to-face contact, with some form of restitutionary agreement being reached in the vast majority of cases (Umbreit et al. 2005, Umbreit 2001, Umbreit & Coates

1992)]. Compliance rates range from a high of 100% to usually no lower than about 75%, in comparison with control groups with diversionary or other sentences from courts (see, e.g., Haley & Neugebauer 1992, Marshall 1998, Kuhn 1987, McCold & Wachtel 1998). Latimer et al.’s (2001) meta-analysis of eight studies with a control group found that restitutionary compliance was 33% higher in restorative justice cases than in the control cases (in court). Other studies in the United States have found comparisons of compliance of 81% completion rates in restorative justice with 58% completion in court cases (Umbreit et al. 2005). And in a randomly assigned treatment evaluation of six different programs, 89% completion was found in restorative justice, compared with 75% completion in courts (Ervin & Schneider 1990). Satisfaction rates for victims are often attributed to the nonmaterial or human aspects of the process—the ability to explain in regular language (not court-stylized admissible evidence) what the harm caused has meant for the individual, to learn facts relating to the wrongdoing, and to learn a little bit about why an offender does bad things. In his meta-analysis of seven studies, Poulson (2003) found that victims who participated in restorative justice proceedings were half as likely to feel upset about the crime afterwards than were victims who went to court. In the places where restorative justice is used in very serious crimes, such as murder or serious felonies, the effects of restorative justice are often only in this nonmaterial realm— accountability and apology by the wrongdoer and some relief in the form of closure or forgiveness for the survivors (Umbreit et al. 2003), because in very serious cases (murder, rape, and serious assault) restorative justice is ancillary or supplemental, not substitutionary, to formal adjudication. In its most spiritual forms, restorative justice is experienced as a cathartic event, both for victims and offenders. As one participant described it, “Today I have observed and taken part in justice administered with love” (Braithwaite 2002, p. 53).


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Indeed, some have asked whether an apology from a murderer might provide greater psychological closure (at least for some) than the death penalty (Hirsch 2006). Perhaps the greatest empirical effort has been expended on examining what concrete and measurable effects restorative justice has had on recidivism rates. In a meta-analysis of 19 studies with 9307 offenders ( juveniles), Nugent et al. (2003) found that VOM participants were 33% less likely to reoffend within six months than those who had not participated in VOM. This rigorous metaanalysis recognizes important categorical and coding issues—different studies define reoffense differently (arrest, conviction, any new contact with the criminal justice system), and the time period in which an offender is followed can have important effects on the findings. Generally speaking, over longer periods of time (as the offender moves further and further away from the VOM event), recidivism rates move closer together for restorative and conventional criminal justice participants (Nugent et al. 2003). These data must be compared with the general rates of decline in juvenile delinquency with the ordinary life course (which some estimate at as much as 50% who no longer offend when they grow older; see McCord 2000). Victimless crimes (like some forms of drunk-driving and some drug offenses) may be less subject to restorative justice–court differences as the encounter with a victim is minimal (with a state official standing in for the harm the crime caused) (Strang 2001). And comparisons of recidivism rates are subject to great selection biases, with the more minor crimes or those committed by juveniles more likely to be assigned to restorative, not conventional adjudicative, treatment conditions (Braithwaite 2002, Bazemore & Walgrave 1999, Bradshaw et al. 2006, Pfeiffer 1998). Finally, empirical studies, with rare exception, tend to homogenize offenders and do not capture the offender who commits crime “for the thrill of it” and may not be deterred by either restorative justice or conventional criminal processes (Katz 1990).


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John Braithwaite and other researchers studying regulatory enforcement have documented that compliance with regulations is often higher (and rates of repeated noncompliance lower) when regulated industries and corporate actors are actively engaged in discussions of compliance and allowed to talk with their regulators (Braithwaite 2002, Hawkins 1984). Inspections of mine safety (in the United States and the United Kingdom) that involved exit conferences with dialogues and plans for reparation were much more likely to lead to compliance with rules and increased safety standards. Braithwaite found that persuasion worked much more effectively in the corporate compliance context than did punitive measures. Similar results have been noted in nursing home regulation, special education (Handler 1986), and nuclear power regulation in a field now internationally called “communitarian regulation” (Rees 1988, 1994) [not unlike American reg-neg (negotiated rulemaking); see Harter 1982]. Uses of restorative justice in controversial arenas such as domestic abuse have met with criticism by feminists and some child advocates, but in fact many studies do report some success with nonrecidivism in some forms of family conferencing and other forms of restorative justice (Burford & Pennell 1998). There has been less rigorous demonstration of successful uses of school peer mediation or antibullying to reduce school violence (Braithwaite 2002, pp. 59–61), although such efforts continue, especially in the wake of recent violent school shootings. Most of the United States was treated to its first public display of restorative justice when the Amish families who lost children in a school shooting in Pennsylvania forgave the wrongdoer, prayed with his widow, and created an image of freedom as “the freedom from vengeance, which is forgiveness” (Fleming 2006, Arendt 1998). Although not a restorative justice process with the actual offender (those who prayed together were all families of either the murderer or his victims and were, thus, all survivors), this demonstration of


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religious forgiveness was quite contrary to the images presented of more vengeful parents in other school shootings (such as Columbine, Colorado). With the expansion of restorative justice to specialized reparative courts, like drug courts, vice courts, and unified family courts, researchers have just begun to explore rigorously whether new treatment models with less punishment reduce recidivism, increase employment, or have other ameliorative effects for both individuals and the larger community. Dorf & Sabel (2000), for example, have studied drug courts’ effectiveness and have argued that these experiments in local social control should be allowed to flourish and vary as evaluators seek to discover what works (such as ongoing relations with social workers and accountability to judges and other court personnel) in which contexts [big cities with larger budgets and more resources or smaller communities with more gemeinshaft or surveillance (depending on whether one has a Weberian or Foucaldian perspective)]. Courts that treat defendants as members of a community have been documented as being perceived to be more fair than conventional courts (Frazer 2006), and perceptions of fairness are linked to increased compliance (Tyler & Huo 2002). These efforts to evaluate problem-solving courts are controversial, especially among those who see restorative justice institutions as formally abrogating legal rights in the name of remedial creativity (Thompson 2002). With restorative justice’s analogue in the debate about use of bargaining processes for negotiated rulemaking in administrative regulation and civil law (Harter 1982, Coglianese 1997, Freeman 1997), critics fear that softer processes will undermine legal formality, separation of powers, formal legal accountability, and enforcement, as well as ordered norm and rule creation. Evaluation of restorative justice’s rehabilitative potential recapitulates the historical dialectic of all judicial reform. Nineteenthcentury reformers created juvenile courts to be a more responsive, less punitive, pater-

nalistic institution for wayward youths. Civil libertarian litigation in the 1960s produced, among other cases, In re Gault (1967), which infused juvenile criminal proceedings with legal rights, such as the right to legal counsel and, some would argue, more punitive outcomes. Restorative justice, like its analogues in civil justice, is a reaction to an overrigidified, bureaucratized, punitive, and ineffective (at crime reduction) criminal law system, which now has its own critics for drawing different lines around individual and collective, formal and informal, material and spiritual, rights-based and interest-based values. Where restorative processes are supplemental, not substitutional, of the conventional legal process, they are more likely to be accepted. Yet some would prefer other reforms of the criminal justice system to remedy its problems. Some argue for less plea bargaining and faster, more responsive trials to allow defendants and victims to come to formal justice faster. Others argue for less draconian sentencing, both in length of time and severity, to return to earlier reform efforts at more rehabilitative notions of criminal remediation. Still others argue for decriminalization of certain offenses (minor property crimes, drug offenses) or more localization of criminal law enforcement, whereas more conservative forces argue for harsher sentences and criminalization of more offenses. In the political standoffs surrounding criminal justice policy, restorative justice appears to be one reform that appeals to both sides of the political spectrum, if for different reasons. Beyond the conventional criminal justice system, efforts to expand restorative and reparative processes to larger acts of wrongdoing (Elster 2006) [state violence, genocide, civil wars, ethnic conflicts, international human rights violations, and past wrongs such as slavery and internment (Brophy 2006)] have also pitted restorative reformers against more formal rights-based reformers. The activity of nongovernmental organizations, the United Nations, and other organizations in enunciating and enforcing human rights


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standards has created whole new institutions of formal prosecution at the international level [the International Criminal Tribunal for the Former Yugoslavia (Hagan 2003) and for Rwanda and the International Criminal Court, among others]. Proponents of enforcement of international human rights argue for strict criminal prosecution, whereas others argue that some forms of reparative justice [whether individualized (Godobo-Madikizela 2003) or more collective (Keller 2007)] are more likely to lead to healed and functioning postconflict societies, replicating timeless philosophical debates about the relative efficacy of principle, adjudication, and rights versus interest- or needs-based bargaining (Elster 1995; Menkel-Meadow 1984, 2003). The rapid execution of Saddam Hussein after prosecution in a state (not international) tribunal, cutting off further testimony, information, and maybe public remorse, has reignited debates about how justice is delivered in such contexts. Whereas some tribunals have been international and other TRCs are nation-state based, other efforts have experimented with more mixed combinations of international and state-based institutions (Sierra Leone, East Timor). Meanwhile, complex legal issues of whether international bodies, such as the International Criminal Court, should bend to national policies of amnesty or forgiveness remain unresolved (Blumenson 2006). Attempts to study the aftereffects of TRCs and more local, indigenous restorative processes, such as gacaca in Rwanda, now abound, with heated debate and controversy (Borer 2006, Henkin 2002, Rotberg & Thompson 2000, Kritz 1995, Avruch & Vejarano 2001, Hayner 2001) as many nations have filed formal truth reports with a variety of reparative conditions (Guatemala, Argentina, Chile, El Salvador, South Africa, Sierra Leone, East Timor). Questions of whether international or local principles of justice should govern are now being raised as well (for their effects on postconflict legitimacy of the legal processes used and the creation of new postconflict national identities, see Ivković & Hagan 2006).


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International tribunals are often viewed as aligned with one side in ethnic conflict, as some have argued has occurred in the International Criminal Tribunal for the former Yugoslavia, thus prolonging hostility and promoting continuing desires for vengeance. Some decry the lack of participation by important perpetrators, such as Dyzanhaus’s (2003) exposure of the absence in the South African TRC of apartheid-era judges, who failed even to narrate and acknowledge their crimes against humanity in upholding the legality of the apartheid regime. Others more forcefully critique the absence of any real punishment, accountability, or reparative compensation (Andrews & Ellmann 2002, Abel 1995) for horrific wrongs, not to mention the failure to confront more long-lasting harms— not only discrimination, wrongful murders and incarceration, and removal of civil liberties, but also continuing gross economic injustice, with little effort to ameliorate, even with well-written and democratically approved constitutions, the continuing conditions of inequality, poverty, and increasing crime among the have-nots. Some fear that having written a report and formally repented as a government, instead of “nunca mas!” (never again), Argentina and Chile, among others, could just as easily fall again into the clutches of brutal dictators (especially as Pinochet successfully avoided full accountability for his crimes). Whether postconflict or postdictatorship societies can put aside their past hostilities and sharp divisions and seek more moderate third ways or alternative strategies without fully coming to terms with the past remains to be seen. Democratically elected regimes are certainly fragile in the former Soviet Union and parts of Eastern Europe, whereas Latin America appears, as of this writing, to have turned a democratic corner, even while left and right cleavages remain strong in many countries. Optimistic citizens hope that past atrocities of military dictatorships have inoculated civil societies against ever again permitting them to exist, but history cautions against definitive conclusions,


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especially when economies are so volatile and inequality remains so pervasive, if not worse than in earlier decades. In the United States, arguments are made for truly restorative justice, not only in the nonmaterial form of apologies for slavery, Japanese American internment, and Native American genocide and property expropriation (Bradford 2005), but for material reparations to be paid to descendants of the victims of these social and political crimes (Brophy 2006, Ogletree 2002). Indigenous groups throughout the world have begun to make similar claims and to file national civil and international claims and lawsuits, seeking a variety of forms of justice, including land claims, monetary compensation, and self-determination and self-governance. Nevertheless, as the debate between the past and future continues in the practices of truth and reconciliation panels or other forms of transitional justice and in the pages of scholarly reports, some rigorous empirical analysis has suggested that, as with the law of unintended consequences, other effects may be generated by such alternative justice systems. Gibson’s (2004a,b) recent study of post-TRC South Africa demonstrates powerfully that those who viewed at least some of the televised Truth and Reconciliation proceedings were much more likely to adopt a human rights consciousness than were those who did not view any of the proceedings. Even in a setting with racially differentiated beliefs in the efficacy of the rule of law, exposure to the wrongful acts of apartheid and their public condemnation increased some perceptions of the need for political and racial tolerance and respect for minorities within a majoritarian rule of law conception. Thus, the transformative, educational effects of such processes may have benefits for those outside of the victim-offender dyad (and are why so many restorative justice projects seek to include community representation and some form of publicity or transparency). These processes are not only for the active participants or victims of the specific act of wrongdoing or harm. To the extent that formal justice systems are about

providing public norms and accountability and remedying harm to the larger community, public restorative justice processes have been empirically demonstrated to provide educative, participatory, democracy-enhancing potential, through radically different formats and with potentially wider reaching effects.

THE FUTURE OF RESTORATIVE JUSTICE: CHALLENGES AND OPPORTUNITIES Restorative justice is more of an idea, philosophy, set of values, or sensibility than a single concrete and uniform set of practices or processes. In some settings, there is direct communication, confrontation, and reconciliation of victims and offenders; in others, there is more indirect restorative justice (Tickell & Akester 2004, Utah Law Review 2003, Marquette Law Review 2005), using procedures similar to caucusing or separate meetings, as in civil mediation, especially when direct communication between offenders and victims might make things worse or too painful (as in some murder, rape, and other serious crimes). In some settings, restorative justice is only for the victim and offender, promising safety, confidentiality, and tailored, individualized, reparative, and conciliatory outcomes. In other settings, more public participation is crucial [by those affected by the wrongful conduct, family members, supporters, treating or representative professionals, the larger community, and, in its most public forms such as TRCs, the larger society (O’Hear 2004, 2006)].2 What began as an idea to reduce the punitive nature of conventional criminal punishment (especially for juvenile offenders and victimless crimes) and to improve the outcomes of criminal justice has developed into 2

Restorative justice processes have been demonstrated in documentary films, focused on the actual operation of a variety of processes, or actually televised for an entire society, as with the South African TRC. More recently, restorative justice was depicted in a 2006 British film, Breaking and Entering by Anthony Minghella, which concludes with a juvenile criminal family conference in London.


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a social and political movement seeking to use restorative or reparative sensibilities to heal not only single acts of misconduct, but civil wars, genocides, and international, multiethnic, political, and religious conflict. Restorative justice as a social movement has been both constituted by and works in collaboration with other political movements—peace studies, nonviolence advocates and practitioners, civil ADR and conflict resolution process proponents, international human rights activists, participatory and deliberative democracy theorists and practitioners (Menkel-Meadow 2005), and those who believe in responsive or dialogic regulation and justice (Pavlich 1996, 2005). What these movements have in common is a belief that more flexible, humane, dialogic, conversational, and authentic human engagement can end a cycle of misconduct, punishment, retribution, vengeance, and more bad acts and violence by both individualized and systematized processes of turning the other cheek, including authentic responsibility taking, accountability, and restitutionary outcomes leading to forgiveness, reconciliation, and reintegration. These are large, aspirational, almost utopian ideas and goals, informed by a basic optimism about humans’ ability to engage in social learning and behavior modification at both individual and large group levels. Efforts to operationalize such grand notions at so many different levels are still experimental, evolving, and fragile. As social scientists and political leaders try to assess whether notions of reconciliation and reintegration can substitute for more punitive and retributivist institutions, they will have to confront a variety of challenges to these processes, including:


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Whether processes that may work on smaller scales ( juvenile criminal offenders, community sentencing circles) can be scaled up to national and international conflict settings without compromising the basic ideas of restorative justice;

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Whether restorative justice requires shared values at the community, nationstate, or international level to be effective, or whether something less than unanimity or consensus can be appealed to in seeking human reconciliation after acts of wrongdoing; Whether the informality, confidentiality, and flexibility of restorative justice threatens important human and legal rights (publicity, representation, due process, anticonfessional rules, equity and proportionality in punishment) or whether human rights and human problem-solving processes can be reconciled; Whether informality, confidentiality, and flexibility in the sanctioning of wrongdoing compromises needs for public processes, public norm generation and enforcement, and transparency and equity; Whether restorative justice processes should be supplemental or substitutionary to more conventional processes of punishment and prosecution; Whether restorative justice processes themselves privilege some over others (the verbal, well resourced, represented, willing, clever, or manipulative); Whether authentic participation in restorative processes and rituals is possible in any mass, multi-valued, and diversely constituted community or society and whether participation in more micro, specific case situations can transform individuals and societies on a macro level to engage in more deliberative and responsive solutions to bad situations; Whether the basic philosophy of separating bad acts from bad people can be an effective notion for dealing with modern, group, and mass-level harmful acts.

These challenges are many and profound. Not listed above are the more practical challenges of structuring, supervising, and


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monitoring the operation and effectiveness of restorative justice programs. As restorative justice ideas are propelled from one domain to another, both ideas and institutionalized practices are themselves transformed to meet the needs of particular communities. There is always the danger of co-optation, both by the larger system and by individuals who learn to work the system with insincere apologies, offers of restitution or reparation, or other inauthentic performances. How insincere participation can and should be discovered and disciplined (in a nonfact-finding environment) remains a serious conundrum for restorative justice advocates. Whether rules, standards, and best practices can or should be generated to assure quality of process or some uniformity across or within domains remains an important policy issue in this field. Yet, with all these challenges, we know that restorative justice has reduced recidivism and reoffense rates in many programs (with both juveniles and adults); that restorative justice processes, with more direct and responsive

communication and negotiation, can generate new norms that are more reflective of changed circumstances or enhanced human understanding; and that even merely observing a restorative justice process or ritual can have social learning and transformative effects on how human beings conceive of their rights and responsibilities in a modern and diverse world. As social scientists develop rigorous evaluations of how these programs work in different settings, at different levels, with different purposes and structures, and with comparisons to relevant conventional processes, we will learn more about how restorative and reparative philosophies and practices may transform punitive forms of social control with more optimistic ideas about human empowerment, understanding, problem solving, and reconciliation after events of individual and group fissures. If, as the saying goes, you can get more bees with honey than with vinegar, perhaps we can get more social progress, peace, and justice with healing than with punishment.


LITERATURE CITED Abel R. 1982. The contradictions of informal justice. In The Politics of Informal Justice: Vol. 1. The American Experience, ed. RL Abel, pp. 267–320. New York: Academic Abel R. 1995. Politics by Other Means (After the Law). London/New York: Routledge Acorn A. 2004. Compulsory Compassion: A Critique of Restorative Justice. Vancouver: Univ. B.C. Press Andrews P, Ellmann S. 2002. The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law. Johannesburg, So. Afr: Witwatersrand Univ. Press Arendt H. 1998. The Human Condition. Chicago: Univ. Chicago Press. 2nd ed. Avruch K, Vejarano B. 2001. Truth and reconciliation commissions: a review essay and annotated bibliography. Soc. Justice: Anthropol. Peace Hum. Rights 2(1–2):47–108 Barnett R. 1977. Restitution: a new paradigm of criminal justice? Ethics 87:279–301 Bazemore G, Walgrave L, eds. 1999. Restorative Juvenile Justice: Repairing the Harm of Youth Crime. Monsey, NY: Crim. Justice Press Beale SS. 2003. Still tough on crime? Prospects for restorative justice in the United States. Utah Law Rev. 2003:413–37 www.annualreviews.org • Restorative Justice: What Is It and Does It Work?

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Law and Collective Memory Annu. Rev. Law. Soc. Sci. 2007.3:189-211. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/18/07. For personal use only.

Joachim J. Savelsberg1 and Ryan D. King2 1

Department of Sociology, University of Minnesota, Minneapolis, Minnesota 55455; email: [email protected]

2

Department of Sociology, University at Albany, SUNY, Albany, New York 12222; email: [email protected]


Key Words


cultural trauma, atrocities, human rights, international law, transitional justice


Abstract Law and collective memory are reciprocally associated. Law steers collective memory, directly but selectively, as trials produce images of the past through the production and presentation of evidence in ritual practices and public discourse. Law affects collective memory indirectly by regulating the production, accessibility, and dissemination of information about the past. Simultaneously, collective memory is preserved and activated by carrier groups to inform lawmaking and law enforcement; and memories of past atrocities serve as analogical devices that, under certain conditions, influence law. Such institutionalization of collective memory as law partly results from applied commemorations, lawmaking situations that invoke the past. The relevance of the reciprocal relationship between law and collective memory is highlighted by the international community’s responses to recent atrocities and regime transitions and by its new openness to intervention in national affairs. This article reviews past research and discusses avenues for future work on law and collective memory.

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INTRODUCTION Collective memory: knowledge about that past that is shared, mutually acknowledged, and reinforced by collectivities such as small informal groups, formal organizations, or nation states and global communities Transitional justice: legal proceedings and decisions in the transition between regimes, typically from authoritarian to democratic, especially as they address repression by the previous regime Institutionalization of collective memory as law: the transformation of collective memories into legal norms and enforcement practices, for example through applied commemorations

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The reciprocal relationship between law and collective memory is the theme of this review. To what extent does law influence how collectivities remember the past and, in turn, how do collective memories of the past inform the creation and enforcement of law? Our focus on collective memory is distinct from the well-established psychological literature on individual memory and law (see Monahan & Loftus 1982 for review), as illustrated in research on topics such as eyewitness testimony (Wells 1993, Loftus & Doyle 1997) or recovery after victimization (Herman 1992). Relative to that scholarship, the social nature of memory and its relationship to law are less frequently the subject of socio-legal inquiry. A recent upsurge in this line of scholarship and pressures toward legal intervention following massive human rights violations warrant a review of the current state of this research. The importance of understanding the impact of law on collective memory is recognized by practitioners and scholars alike. Landsman (2005, pp. 6f ) quotes Robert Jackson, head of the U.S. prosecutorial team during the Nuremberg Criminal Tribunal against leading Nazi figures, who argued, “Unless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. We must establish incredible events by credible evidence.” Jackson’s words find renewed relevance in light of recent atrocities in Rwanda, East Timor, and Sudan’s Darfur region and in the former Yugoslavia and Iraq, and also following the end of dictatorial or autocratic regimes in East Central Europe, Asia, Africa, and Latin America. Law is central to new attempts at “breaking cycles of violence” (Minow 1998, 2002) and at providing transitional justice during shifts from authoritarian regimes to democracy (Kritz 1995, Teitel 2000), and collective memory can be a central mediating force (Meierhenrich 2006).

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King

Law is an especially powerful institution for the creation of collective memory because it involves highly effective rituals (Durkheim 1984 [1893], Borneman 1997, Nino 1996) and its enforcement is backed by the coercive apparatus of states, churches, or other organized groups (Weber 1976). At the same time, law is subject to a particular set of institutional rules, such as those on the admission of evidence, that color the collective memory produced in legal institutions and through legal processes in ways that differ distinctly from memories produced by historians or in the worlds of politics, art, and religion (Alexander 2004, pp. 16f; Osiel 1997). Whereas legal proceedings construct images of the past directly, law affects collective memory indirectly when it regulates what information can be collected or accessed and what can be said about the past. In some cases, information that could influence the memory of past events is restricted (Markovits 2001), and in other cases libel laws (Rose 1968, Smolla 1983) and criminal codes regulate the expression of opinions about the past, evidenced by the prohibition of Holocaust denial in many countries. In reverse, we must consider collective memory if we seek to successfully understand and explain law on the books and law in action. Collective memories are activated in legislative and legal decision making, which Savelsberg & King (2005) refer to as the “institutionalization of collective memory as law.” In addition, collective memories also affect law enforcement practices (King 2005). We suggest in this review that the connection between collective memory and law represents a promising area of socio-legal inquiry. At the same time, research in this vein is dispersed across multiple disciplines and specialty fields, including anthropology, criminology, history, jurisprudence, political science, social psychology, and sociology, that employ various theories and methodologies. We seek to identify common organizing concepts in this body of research and propose new

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directions for future research at the intersection of memory and law.


COLLECTIVE MEMORY AND CULTURAL TRAUMA— CENTRAL CONCEPTS Collective memory, a term coined in the classic work of French sociologist Maurice Halbwachs (1992), refers to knowledge about that past that is shared, mutually acknowledged, and reinforced by a collectivity—from small informal groups to formal organizations to nation states and global communities (for a review, see Olick & Robbins 1998). Halbwachs’s approach was novel in at least two respects. First, his work challenged the empiricist conception of the past associated with David Hume, according to which we, as enlightened subjects, have immediate access to the world and history. Second, it goes beyond Kantian apriorism, which posits that humans understand the world through a set of universally given categories. Instead, Halbwachs was inspired by Durkheim’s (2001 [1912]) insight that the categories through which we see the world are themselves social constructions. More specifically though, Halbwachs maintained and sought to show that our understanding of the past is influenced by present-day interests, a perspective that Schwartz (1982) has labeled the “presentist approach.” Scholarly engagement of this theme has recently intensified. A search in Sociological Abstracts shows 183 publications with both the terms collective and memory in the titles; 72 of these appeared from 2000 through 2005. Some of this research supports Halbwachs’s presentist claim. Fine (2001), for example, shows that the memory of past presidents and other famous and infamous people is affected by the position and interest of present-day “reputational entrepreneurs.” This finding is in line with the insight that collective memory is always contested and subject to mnemonic struggles (Zerubavel 2004). Collective memory is reflected and activated in the minds

of individuals and always in flux (Olick 2005, Schwartz & Schuman 2005). Collective memory is also dependent on previous ways of remembering history. Examining a series of commemorations of May 8, the day of German capitulation after World War II, Olick (1999) finds that today’s commemorative speeches have to take yesterday’s commemorations into account, at considerable cost to those speakers who fail to do so. They run the risk of breaking taboos and suffering reputational and political damage. Olick thus speaks of the “path dependency” of collective memory. More recently, Savelsberg & King (2005) expanded this idea with the concept of “applied commemorations,” that is, commemorations not for the explicit sake of addressing historical events, but commemorations in the context of decision-making debates that involve historic events, for example legislative sessions on hate crime and restrictions on free speech. Cultural trauma is a closely related term, defined by Smelser (2004, p. 44) as “a memory accepted and publicly given credence by a relevant membership group and evoking an event or situation that is a) laden with negative affect, b) represented as indelible, and c) regarded as threatening a society’s existence or violating one or more of its cultural presuppositions” (for applications, see Alexander et al. 2004). Cultural trauma is a new concept anchored in Durkheim’s (2001 [1912]) classical idea of “religious imagination”—an imagination that forms “inchoate experiences, through association, condensation, and aesthetic creation, into some specific shape” (Alexander 2004, p. 9). Alexander (2004) spells out basic elements of a theory of cultural trauma, drawing from different sociological traditions. The construction of cultural trauma, he argues, is a process that involves (a) claims-making by agents; (b) carrier groups of the trauma process (with material and ideal interests); (c) speech acts by carrier groups, who address an audience in a specific situation, seeking to project the trauma claim to the audience; www.annualreviews.org • Law and Memory

Applied commemorations: implicit or explicit commemorations in the context of decision-making situations such as legislative sessions or legal proceedings Cultural trauma: memory of an event or situation that is laden with negative affect, represented as indelible, and seen as threatening to a society’s existence or violating its cultural presuppositions (Smelser 2004) Carrier groups: groups that maintain or promote types of knowledge, here an image of history, often with the goal of controlling memory or advancing a cause

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and (d ) cultural classifications regarding the nature of the pain, the nature of the victim, the relation of the trauma victim to the wider audience, and the attribution of responsibility. Importantly in this context, Alexander observes that linguistic action, through which the master narrative of social suffering is created, is mediated by the nature of institutional arenas that contribute to it. It is in this sense that we examine the literature for insights on how institutional features of law, for example law’s focus on individuals as responsible actors, affect the construction of collective memory compared with other institutional fields, while also being mindful that the varying shapes of law in cross-national and historical comparison warrant further specification of any generalization about the relationship between law and knowledge (Savelsberg 1994), including collective memory. As we discuss the link between law and collective memory, we take a road that is not well traveled and on which many street signs are missing. When we enter collective, memory, and law as search terms, Sociological Abstracts shows only two entries for titles and thirteen for article abstracts.1 Although the road that connects law and collective memory is not crowded, much literature is not captured through such a narrow search. Other work has not yet appeared in print at the time of our writing (e.g., Karstedt 20072 ). We set out to review available publications that connect these themes while also pointing to avenues


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1 A search in CAS Worldwide Political Science Abstracts, using collective, memory, and law as combined search terms, results in zero hits for titles and eleven for abstracts. A Criminal Justice Abstracts search showed zero entries for titles and two for abstracts.

not yet taken. Traveling the road in one direction reveals scholarship on law’s influence on collective memory. In the other direction we find research on how collective memory affects the content and enforcement of law.

HOW LAW SHAPES COLLECTIVE MEMORIES Direct Effects: Shaping History in Courts of Law Civil, administrative, and criminal law proceedings (Landsman 2005, Osiel 1997) as well as administrative alternatives, such as truth and reconciliation commissions (TRCs) (Wilson 2003), contribute to the shaping of collective memory.3 Although law’s explicit principles do not traditionally include this purpose, sociologists have long looked beyond philosophical goals to examine conditions and functions of criminal punishment. Their insights align with a law and collective memory perspective. Garfinkel (1956), for example, interprets courtroom events as “degradation ceremonies,” leading to the ritual destruction of the persons on trial. Following the fall of a dictatorial regime that allowed or committed massive human rights violations, the ritual destruction of former political leaders, possibly charismatic figures, through trial is likely to result in a revision of collective memories of the role those leaders played in history. Mead (1918) points to the emotional aspects of trials that contribute simultaneously to “respect for the law” and “hatred for the criminal aggressor” and Durkheim (1984 [1893]) sees trials as ritual practices through which social sentiments maintain their force and

2

Susanne Karstedt, editor of this forthcoming volume of conference proceedings, generously made her introduction available to the authors after the text of this article was drafted. Chapters cover the time span from World War II to the present. They include case studies on South Africa, Australia, South Korea, Norway, Poland, Czechoslovakia, and Germany and diverse mechanisms from criminal justice to lustration, truth and reconciliation commissions, constitutions, civil liberties, and property rights. A focus is on transitional justice.

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Another quasi-legal response is lustration, the exclusion from particular types of occupations of categories of people involved in previous regimes [see the special issue of Law and Social Inquiry (Siegelman 1995)]. For a brief comparative review of institutional responses such as trials, TRCs, lustration, compensation, naming and shaming, criminalizing denial of the past, commemoration and memorialization, reconciliation, and reconstruction as methods against denial, see Cohen (2001, pp. 222–48).


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vitality. Reconfirming respect for law challenges the practices of a past lawless regime, and reconfirming social sentiments that might have conflicted with a past regime’s practices similarly strengthens a critical view of recent history. In addition to law’s facilitation of such emotionally colored reinterpretations of history and its actors, legal trials also serve as bookkeepers of history. President Franklin Roosevelt’s eventual support for the Nuremberg Tribunal was clearly motivated by this understanding, as Landsman (2005, p. 6) shows when he quotes a report by Judge Samuel Rosenman, Roosevelt’s confidant: “He was determined that the question of Hitler’s guilt—and the guilt of his gangsters— must not be left open to future debate. The whole nauseating matter should be spread out on a permanent record under oath by witnesses and with all the written documents” (see also quotation of Justice Robert Jackson, above). Roosevelt had come to believe that revisionist interpretations of World War I, challenging the doctrine of Germany’s primary guilt, had contributed to isolationist tendencies in the United States, tendencies that Roosevelt strongly opposed (Landsman 2005, p. 6). His interest in documenting the Nazi regime’s aggression and atrocities through court proceedings was political and strategic, exemplifying Halbwachs’s (1992) claim of presentist orientations in the construction of collective memory. Recent work addresses these affective and cognitive functions of trials and their contribution to law’s unconscious or conscious role in the construction of collective memory. Arguing from a Durkheimian perspective, Carlos Santiago Nino (1996), an Argentinean ´ jurist, former advisor to President Raul Alfons´ın, and strong proponent of criminal trials, argues that the prosecution of generals of the Argentinean military junta was necessary to impress on the collective conscience that the law is the ultimate force in society. Legal anthropologist Borneman (1997) takes a similar position regarding the treat-

ment of members of the former East European elites after the 1989 overthrow of communist regimes. Borneman considers trials as ritual performances of symbolic sacrifice. They engage in a process of internal cleansing and thus prepare the ground for a functioning democracy, the legitimacy of which depends on a system of accountability that is guaranteed only through the principles of the rule of law. Osiel (1997), writing about the role of law in the construction of collective memories of mass atrocities, both supports and challenges the positions taken by such Durkheimian protagonists of criminal trials (see also Osiel 1995). He stresses the importance of trials as places in which the poetics of storytelling bear out, with defense attorneys telling the story as a tragedy and prosecutors as a morality play. The courtroom drama is then recast “in terms of the ‘theater of ideas,’ where large questions of collective memory and even national identity are engaged” (Osiel 1997, p. 3). Osiel suggests that “liberal show trials” are conducted by “moral entrepreneurs” and, quoting the Bulgarian philosopher Todorov (1996), by “activists of memory.” Yet, Osiel claims, Durkheimians expect too much from criminal law and overlook the limits of Durkheim’s approach: Durkheim underestimated the role of reason and of the rational expression of dissenting opinions (i.e., conflict) in court trials, and he underestimated how the strengthening of the public’s feeling may result in conflicting public sentiments and violence rather than social consensus. Osiel (1997, p. 35) suggests that Durkheim learned important lessons, but falsely generalized, from his experience of the Dreyfus trial (see also Coser 1971, pp. 158–59). Osiel offers an alternative understanding of trials that, he argues, overcomes limits of the traditional Durkheimian approach. Instead of establishing mechanical or organic solidarity, legal proceedings manage to produce “discursive solidarity” (Osiel 1997, p. 51) by providing a civil arena in which dissenting actors can tell their stories and have to www.annualreviews.org • Law and Memory

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Institutional logic of law: the distinct set of rules and scripts in legal proceedings concerning the presentation of evidence, the establishment of truth, and decision making

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listen to each other, thus contributing to solidarity through civil dissensus. In line with ideas developed by Simmel (1950) and later elaborated by Coser (1956), Osiel stresses the sociating consequences of conflict, including trials as arenas in which conflicts can be engaged (see also Garland 1990). He understands trials, more specifically, as institutional arenas for the practice of communicative action (Habermas 1987), and he quotes John Dewey’s dictum that “democracy begins in conversation” (Osiel 1997, p. 45; for an excellent review and critique, see Power 1998). Although both Durkheimian and Habermasian perspectives thus speak to the strength of law as a contributor to collective memory, literature also explores selectivities and limits of law. Selectivities in law’s construction of history. Trials follow particular institutional rules of law (Weber 1976) or, if translated through the habitus of the judicial field into practice, the particular logic of the legal field (Bourdieu 1987). Legal proceedings are bound by evidentiary rules that differ, for example, from those used in other institutional spheres such as science or religion. Further, they target individuals (collectivities only if these can be conceived of as artificial actors), not groups, social processes, or structures. Actions they address are limited by legal classification systems. Trials also focus on defendants, with victims as tools in the pursuit of justice (for the Demjanjuk trial, see Landsman 2005, pp. 110–72). Finally, following the binary logic of criminal law, the defendant is guilty or not guilty, a gross simplification compared with social scientific standards (Schumann 1989). A budding literature has begun to explore the consequences for collective memory. Considering the individualizing effects of criminal law, Giesen (2004) writes about how Germans in the postwar era coped with the trauma of perpetrators. He argues that German criminal trials against for-

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mer Nazis served a decoupling function: “In the narrative of individual criminal guilt, the German people . . . take the position of the third party . . . . The law court was the institutional arena in which the demarcation of individual guilt was staged, ritually reconstructed, and reaffirmed” (Giesen 2004, p. 121). As individual perpetrators were ritually expelled, the majority of Germans were offered a chance to avoid acceptance of collective guilt. Osiel (1997, pp. 101f ) extends this insight to France, where, in line with President Charles De Gaulle’s urging, post– World War II trials were directed against a few top elite actors of the Vichy regime. Again, decoupling succeeded. By attaching guilt to some individuals through legal rituals, memory could be cleansed of the collaboration of many, and attention could be redirected from questions about their past to the reconstruction of France following war and occupation. Accordingly, criminal trials focusing on a few elite actors contribute to removing from collective memory those larger social mechanisms that involve broader segments of the population in the establishment and execution of dictatorial regimes and their atrocities. Although literature discusses implications of the individualizing nature of criminal law on collective memory, effects of the other aspects of law’s institutional logic warrant major research efforts, including limits set by particular evidentiary rules, legal classification systems, the focus on defendants, and criminal law’s binary logic. In addition, comparative work is needed on the shape of collective memories constructed through trials against human rights offenders and war criminals by diverse types of courts: domestic courts under successor regimes (e.g., Argentina, Chile, Iraq) versus international courts (e.g., The Hague); courts in countries that represent victims (e.g., the Eichmann trial in Jerusalem) versus countries representing offenders (e.g., French courts against Nazi collaborators) versus neutral countries; or by victors’ military tribunals (e.g., Nuremberg) versus courts


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run by third parties or international organizations. Such research can draw inspiration from disagreements such as Hannah Arendt’s (1963) critique of the “particularistic nature” of the Jerusalem trial against Adolf Eichmann and her related plea for international criminal courts. That viewpoint challenged Prime Minister David Ben-Gurion, who sought to tell of the suffering and struggle of the victims to a new generation and also to correct the Nuremberg Tribunal’s focus on warrelated crimes at the expense of the history of the anti-Jewish genocide (Douglas 2001, Landsman 2005). It evoked a heated debate and criticism by scholars such as Bell (1980), who recognized law’s embeddedness in social life and challenged Arendt’s universalistic demands. Further, legal logic is historically variable. Evidentiary rules may change, and the individualizing and decoupling consequences of contemporary law are not eternal. Meierhenrich (2006) demonstrates how the individualizing consequences of law are the product of a rationalist response to a romanticist identification of the individual with collectivities. This rationalist response was manifested, for example, in the Nuremberg prosecutors’ failure to reach convictions of various Nazi organizations. Only individuals were found guilty. In response, Meierhenrich pleads for a cautious rehabilitation of the concept of collective guilt because, he argues, the practice of collective guilt, its attribution, acceptance, and rejection are social facts, at times even reflected in legal practice (e.g., U.S. conspiracy law). Most importantly, collective guilt is argued to interact in a dynamic relationship with collective memory and collective violence; disregarding it would deprive us of the ability to effectively interrupt what Minow calls “cycles of violence.” Finally, although some literature demonstrates the selective contribution of trials to collective memory, other work shows that legal logic must not be overrated. First, legal trials initiate the collection of evidence, not all of which may be admitted in the court of

law, but evidence that will, nevertheless, be available for future historians or that may be directly communicated to the public through mass media. Hagan (2003) and Hagan & Levi (2005) document the diversity of extralegal expertise of forensic scientists, victim workers, journalists, and social scientists mobilized by the International Criminal Tribunal for the former Yugoslavia (ICTY) to uncover forensic and interview-based empirical evidence of the atrocities committed during the Yugoslav wars. Evidence such as recently opened mass graves reach a broad public through journalistic reports, independently of the success of translating these materials into legal evidence in the ICTY’s legal proceedings. Investigatory evidence may also be used in future historical documentations, independently of its legal status at the trial (Bass 2000, p. 302). Second, both legal proceedings and investigatory work may be guided by nonlegal rationales, especially political and ethical ones, in a substantivized type of law (Savelsberg 1992, Weber 1976). A substantive focus is particularly likely where legal institutions are not fully developed (see Hagan 2003 for the ICTY) and in cases of “victor’s tribunals” (as distinct from neutral international courts), as discussed by Landsman (2005, pp. 7, 9) for the Nuremberg Tribunal. (For tensions between legal rules and practices and consequences for the construction of a genderized memory of atrocities in the Bosnian case, see Campbell 2002.) In addition, law enforcers’ actions may stray from legal logic when they act under political pressure. Landsman (2005, pp. 111ff ) describes the problematic work of the U.S. Office of Special Investigation (OSI) in the case against Ivan Demjanjuk, a man formerly of Ukraine who was suspected of being the infamous Ivan the Terrible from the Treblinka concentration and extermination camp. Landsman (2005, p. 123) quotes the OSI’s deputy director: “The verdicts in our case went beyond the guilt or innocence of a particular defendant, each one helped to complete the historical record on what America had done [after the early years of www.annualreviews.org • Law and Memory

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inaction] in response to the Holocaust.” Landsman interprets the politicization and resulting missteps of the OSI in the context of a dramatic shift in American public opinion. Americans increasingly challenged how the United States treated the question of Nazi genocide as a “matter of foreign countries” (Landsman 2005, p. 111), an opinion shift that had motivated the foundation of the OSI in 1979 in the first place. Law’s interaction with other social institutions: dependency, competition, and conflict. Law sometimes competes or conflicts with other fields, and law’s impact may depend on other institutions. Hagan (2003) documents the intense competition between the legal and diplomatic fields in the Yugoslav case. In addition, criminal courts are incapable of reaching large audiences directly (for the exception of strong states such as the People’s Republic of China, see Trevaskes 2004). Trials in democratic societies are open to the public, but the audience is small. No matter the ritual force of trials, courts depend on other institutions to communicate their proceedings and decisions to a broader public. Hagan (2003), in his simultaneous account of the atrocities committed in the Yugoslav wars and the building of the ICTY, describes how the charisma of the head prosecutors depends on mass media: “Even at Nuremberg, Justice Jackson needed . . . the cultivation of an initially unengaged press corps to play his charismatic role in the prosecution of Hermann Goering and his colleagues . . . . By the time of Ted Turner and CNN’s globalization of the news, the creation and consequences of charisma were even more important parts of international criminal practice” (Hagan 2003, p. 7). News media not only disseminate the court’s accounts of history; they also report selectively, in general (Gans 1979), and in the coverage of trials specifically (Wright et al. 1995). Kahn’s (2000) account of a Canadian Holocaust denial case illustrates how courts and media interact. Using a rebuttal strategy, 196

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prosecutors tried to disprove the defendant’s statements by calling experts and survivors to the stand. This strategy caused considerable public controversies and misleading newspaper headlines, some of which focused on any element of doubt about selective pieces of evidence. After a conviction was overturned on procedural grounds, a second set of prosecutors used an unmasking strategy, seeking to show that the defendant, as a Nazi, had an interest in denying the Holocaust, a strategy not to give deniers the appearance of seriousness by seeking to rebut their claims (Lipstadt 1993). This second trial, void of the presentation of historical evidence, provoked neither public controversy nor problematic publicity for deniers, illustrating how prosecutorial strategies, combined with media responses, matter even within a given legal institution. They may affect what narratives of history prevail and are communicated to a broader public. Complementary or alternative mechanisms such as truth commissions. Some 20 truth commissions (TCs) or TRCs have been at work since 1974, used primarily as alternatives or complements to criminal trials (Landsman 2005, p. 265). Such commissions are perceived as advantageous in light of the limits and selectivities of trials, spelled out above, especially when perpetrators and victims represent two distinct groups in society that must coexist in the post-atrocity era (Hayner 1994, Kritz 1995, Roche 2005; see also U.S. Inst. Peace 2006). Yet, the work of TRCs, like all construction of historical memory, is selective. Critics stress that TRCs are more concerned with collective well-being than with the fate of individuals. Wilson (2003) cites Plato, for whom the interest of the state is the ultimate standard, placing reconciliation proponents such as legal scholar Martha Minow (1998, 2002) and activist Desmond Tutu in this tradition. Especially where old power holders maintain positions of authority (e.g., Pinochet in Chile, de Klerk in South Africa), amnesties


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are seen as a potentially necessary but problematic political compromise, at times paired with TRCs. Wilson (2003, p. 369) argues for the South African TRC that “[a] culture of human rights was constructed upon the quicksand of a culture of impunity.” Wilson identifies several discursive features of TRCs: the construction of a new notion of the national self; an organic model of nation; metaphors of illness and health; and a common good that excludes retribution and stresses reconciliation. Accordingly, Bozzoli (1998) characterizes the South African TRC as “‘the sequestration of experience’ when individual narratives were subordinated to community histories and new national narratives on the experience of apartheid,” exemplified in Tutu’s dictum that “[s]ocial harmony is for us . . . the greatest good” (quoted in Wilson 2003, p. 370). Wilson finds the latter position anchored in intellectual communities of lawyers, political scientists, moral philosophers, and cultural anthropologists (e.g., Hayner 2001, Ignatieff 2001, Minow 1998). In addition to the superordination of collective over individual concerns, specific mechanisms of narrating the truth about past atrocities color the collective memory to which they contribute, as discussed by ethnographic researchers for the South African TRC. The TRC’s Information Management System (Infocomm), for example, favors quantifiable forensic evidence: “In Infocomm’s view the only knowledge that matters is that which can be counted and measured” (Wilson 2003, p. 375). Relatedly, Buur’s (2000) work inside the TRC provokes an examination of the TRC’s bureaucratic mentality (Wilson 2003, p. 376). Wilson’s (2001) own work on the TRC in South Africa critiques the favoring of forensic truth over narrative truth. Statements were coded to be broken down to 48 recognized categories of violation, “called ‘the controlled vocabulary’, or the ‘Bible’ by data processors” (p. 377)— at the expense of subjectivities. Ethnographic researchers thus argue that the specific mech-

anisms of the South African TRC privileged the memory of offenses that can be subsumed under bureaucratic categories at the expense of memories of victims as they experienced and gave meaning to their suffering. Despite such critiques, the South African TRC attracted widespread attention in the South African population, and it gained trust especially among blacks, as documented in extensive survey research by James Gibson (2004). In his examination of the TRC’s effect on collective memory, Gibson further diagnoses that, while many aspects of the apartheid past are still contested, the TRC seems to have had “some influence on creating a South African collective memory,” especially as it helped to “moderate views of the past” (Gibson 2004, p. 115). In short, while TRCs are meant to overcome institutional constraints of criminal courts, including their selective construction of history, TRCs themselves produce selective, albeit effective, accounts of history. And, while they avoid some shortcomings of legal trials, they are themselves burdened by unintended and counterproductive consequences. Importantly, in practice, trials and TCs are not necessarily mutually exclusive. Where they interact, post-transition countries often show significantly better human rights records than countries with neither institutional response, at least in Latin America (Sikkink & Booth Walling 2007). The causality of this relationship and the mediating role of collective memory in these processes warrant further investigation.

Indirect Effects: The Regulation of Mnemonic Content by Law In addition to literature on law’s direct role in the production of collective memory, other research examines how law affects collective memory indirectly by regulating what information can be produced, accessed, disseminated (and to whom), revealed, or kept secret. How and to what degree law interferes in the production and dissemination of www.annualreviews.org • Law and Memory

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knowledge, thereby influencing knowledge of the past, vary with the legal environment and especially with the political regime in which law is embedded.


Structuring historical memories by controlling access to archival information. Not only do legal decisions and institutions, such as practices of Internal Review Boards (Feeley 2007) or legislative allocations to science budgets (Heydebrand 1990, Savelsberg et al. 2004), affect the construction of knowledge, including, potentially, knowledge about the past; law also regulates the maintenance of and access to archives in which a nation’s history is documented (see Cassin 2001, pp. 16–18 on France). Markovits (2001) examines the history of such laws for Germany, reaching back to the 1934 Decree on Court Files (Aktenordnung), which established a hierarchy of durability where the majority of court documents must be destroyed after 30 years, with the exception of court decisions. Markovits sees in this hierarchy a “silencing of the voices of ordinary people” (p. 527). Later, the 1977 Federal Data Protection Act (Bundesdatenschutzgesetz), the “most perfectionist system of data privacy in the world” (p. 523), in combination with a 1993 decision by the Constitutional Court (Bundesverfassungsgericht) establishing a right to “informational self-determination,” assured that court files would not be publicly accessible (except with permit); these actions thus constitute a further road block to data access. Subsequently, the 1988 Federal Law on Archives (Bundesarchievgesetz) determined that files relating to “natural persons” can be viewed only 30 years after the person’s death. Public critique that such a law would protect former Nazis from legal claims resulted in an exemption of files relating to “office holders in the exercise of their duties.” Most recently, with the 1990 unification of two German states, the historical legacy of the German Democratic Republic (DDR) in the East posed new challenges. The 1992 establishment of state archives with all DDR 198

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party records was exempted from the 30year grace period, except where “unimportant” people are concerned. In the case of the Gauck archives with six million files of the former secret police (Stasi), research was restricted by allowing access to event-related files but not to person-related files (with the exception of alleged perpetrators and victims themselves). Markovits’s empirical account feeds informed speculation about the causes and consequences of archival laws. Especially with regard to postunification rules, she sees interests at work that shape laws to selectively restrict access to information with the intent and effect of advancing elite-serving collective memories. Markovits suggests that two forms of memory are favored. First, the focus on event-centered files advances an institutional approach to legal history, the central theme of which is the DDR judiciary’s lack of independence; this approach comes at the neglect of considering local actors who may have obstructed the smooth functioning of repressive law. Such interpretation may be in the interest of elites of the new unified Germany who seek to challenge the legitimacy of DDR justice. Second, the preferred access of victims to archival records may advance “history as victims’ stories.” Such history, Markovits argues, results in historical accounts that are mixed with emotions and lose sight of the complexities of surrounding situations. Again, this selectivity would strengthen illegitimacy claims against the DDR justice systems, in line with the interests of elites of the new unified Germany. Markovits’s theoretical speculation raises additional questions for future research regarding the conditions and consequences of restrictive record maintenance and access laws. No research empirically assesses the extent to which concealing versus revealing secrets of the past actually influences collective memory. There is also little work examining how laws that regulate knowledge of historical events, which Cohen (1995, p. 47) sees as a ripe subject for the study

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of social control, vary across socio-political context. The dissemination of knowledge. The construction of collective memories is further affected by laws that regulate the use of available information. Justifications for such laws are typically based on concerns for the dignity of individuals or vulnerable groups (for the imposition of enforced silence about a past tyranny as part of an amnesty and for the sake of securing inner peace in ancient Athens, see Cassin 2001, pp. 10–12). The German criminal code, for example, prohibits the dissemination of symbols of political parties proclaimed unconstitutional (paragraph 86a) and the production, dissemination, exhibition, or making available to persons below the age of 18 writings that incite race hatred (paragraph 131). German law also dictates that insult or slander, if directed against a person who was persecuted during the Nazi regime, or against a deceased person who lost his or her life as a victim of the Nazi regime, can be prosecuted without petition by the victim (as opposed to insult and slander generally; paragraph 194). The latter norm is directed against the spreading of the “Auschwitz Lie”; that is, public denial of the existence of extermination camps during the Nazi era. American law, by contrast, has traditionally stressed civil liberties more strongly than the protection of individuals or groups from offensive speech, and much printed neo-Nazi propaganda currently distributed in Germany is produced in the United States (Savelsberg & King 2005). Libel law, meant to protect a person’s reputation, is a private law mechanism to control speech, including interpretations of a person’s involvement in historic events. Comparative work highlights variations of the use of libel law to control interpretations of the past, as illustrated by work on libel suits by then Israeli Defense Minister Ariel Sharon against an American and an Israeli paper (Adler 1986, Dan 1987, McCormack 1985). In 1983, Time magazine published a report

about Sharon’s role in the massacres committed during the 1982 Lebanon war by the Phalangists, a Christian militia group, in the Palestinian communities of Sabra and Shatila, both of which had a history of training terrorist groups. Under political pressure, the Israeli government set up a commission to investigate the charges, staffed with prominent members of Israel’s judiciary that included Yitzhak Kahan, chief justice of the Supreme Court, in addition to a retired general (Kahan Commission). The commission report was critical of Sharon and recommended his resignation. Time magazine’s story, based on the Kahan Commission report, however, intensified that critique, its cover reading “Verdict on the Massacre” and the story’s headline “The Verdict is Guilty.” Sharon sued the magazine for damages of $50 million. Although the American jury was critical of Time’s reporting, it denied the charge of libel in light of American law’s strong focus on First Amendment rights, requiring that malicious intent be shown. In a similar trial in Tel Aviv against the daily newspaper Ha’aeretz, Sharon fared better. The Israeli court, like its European counterparts less focused on free speech rights, decided that Sharon had indeed been libeled. Past research has not systematically explored the comparative effects of libel law on the construction of collective memory. The example of the Sharon case illustrates, however, that such work is needed. Both criminal and civil law entail institutional mechanisms to steer information indirectly and thereby affect the construction of collective memory. Such research could be fruitfully guided by Simmel’s (1950) observations on the role of secrecy in society, as have been applied to “legal secrets” in private law by Scheppele (1988). Secrecy’s (and its challengers’) roles in the protection of individual rights, groups’ survival, the stability of transitional democratic regimes, issues of government control over the interpretation of history, and actor-specific access to information are at stake. www.annualreviews.org • Law and Memory

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HOW COLLECTIVE MEMORIES SHAPE LAW Historical consciousness: awareness and discourse about the past in relation to the present, particularly as concerned with causes and consequences of historical eras or events Analogical device: a past event, typically one in which there exists a unified memory and a clear symbolic meaning, used for drawing a parallel to a current event to legitimate action or intervention

Law is not only fertile terrain for constructing collective memory. Memory, in turn, influences the creation and behavior of law and legal institutions. Memory of past injustice, for instance, can influence our expectation of what constitutes justice (Rosenblum 2002, p. 5). Booth (2001, p. 779) observes that “[a trial] is a venue for seeking the victory of the memory of justice over the will to forget,” and he discusses various ways in which collective memory and law are intertwined. Memory can spur feelings of retribution, when law is called upon to dispense criminal punishment. Memories of past atrocity can also inspire related legal and quasi-legal institutions. TCs are created to recognize and publicize memories of wrongdoing, and amnesties are formalized to foster “civil forgetting” (Booth 2001, p. 778; Minow 1998).4 Others suggest that laws, themselves, are carriers of the past into the present (Schudson 1997), as laws represent memorials dedicated to past wrongs (Macklem 2005). Yet, collective memory does not automatically beget legal recourse. Some perpetrators of mass atrocity are prosecuted, while others evade. Justice is sometimes dispensed rather quickly following atrocity (Nuremberg), whereas in other cases “righting old wrongs” is delayed (Galanter 2002). In some cases, “collective amnesia” limits the likelihood of legal redress for past injustice altogether (Balfour 2003). Such variability in the memory-law nexus raises questions of interest to socio-legal scholarship. In particular, how and under what conditions does collective memory influence law? Research germane to that question suggests multiple channels linking memory with the development, implementation, and enforcement of law. We organize this section 4

Booth (2001) speaks to the connection between memory and justice at a more philosophical level. Arguing that memory serves as “a face of justice itself” (p. 777), he discusses the role, and limits, of collective memory as related to retribution, truth preservation, and amnesty.

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around three mechanisms that bridge these concepts, mindful that they are neither exhaustive nor mutually exclusive of one another: (a) analogical narratives, (b) historical consciousness, and (c) carriers of memory.

Collective Memory as Analogical Device Collective memory and cultural trauma may first influence law via analogy between contemporary social problems with past traumatic events. Research on analogical references to past atrocity in relation to legal institutions represents a nascent and developing line of scholarship, and to date research in this vein has largely focused on the legacy of the Holocaust. A working thesis derived from multiple theoretical lineages is that symbolic depictions of certain atrocities provide a cognitive and moral framework that can impel legal action. This notion is grounded in the sentiment that symbols stand for larger ideas and “evoke an attitude, a set of impressions, or a pattern of events associated . . . with the symbol” (Edelman 1985, p. 6; see also Geertz 1973). The Holocaust has arguably been constructed as the universal symbol of evil in the Western world (Alexander 2002). It thus entails “metaphorical power” (Levy & Sznaider 2006, p. 5) that can inform national and international legal institutions. Alexander’s (2002) work, in particular, links law with memory of past atrocity. In presenting his theory of collective trauma, Alexander expounds in detail the construction of the Holocaust narrative in the post–World War II era, when the Holocaust ultimately became a universal symbol of evil in the Western world. That moral universal, along with the linguistic and visual symbols thereof, are capable of propelling legal and other (e.g., military) action through analogical reference (see also Levy & Sznaider 2004, 2006). For example, Alexander illustrates how memory of the Holocaust was used to propel American and European intervention in the conflict involving Serbian atrocities in Bosnia and


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Herzogovina in the early 1990s. The Balkan conflict coincided with a reinvigorated Holocaust discourse, exemplified by the construction of the Holocaust Museum in Washington, DC, and the release of the Spielberg film Schindler’s List (Levy & Sznaider 2004, Novick 1999). The choice to intervene in Bosnia was contested, and politicians were not uniform in their resolutions. Some politicians made symbolic analogies between the Holocaust and the Balkan conflict to both motivate and justify intervention, which ultimately took form in a peace settlement that included obligations for all parties under international law.5 As Alexander (2002, p. 47) notes, “Senator Joseph Lieberman told reporters that ‘we hear echoes of conflicts in Europe little more than 50 years ago,’ and presidential nominee Bill Clinton added that ‘history has shown us that you can’t allow the mass extermination of people and just sit by and watch it happen.’” European politicians made similar pleas. Margaret Thatcher averred, “How many more echoes of horror do Western societies need to hear? Sealed train cars . . . ethnic cleansing . . . concentration camps. Genocidal aggression and callous indifference did not end with the Nazis. The plague has risen with Serbia’s devastation of defenseless Bosnia” (NY Times 1992). Such political claims were accompanied and buttressed by pictures and descriptions of prisoners that served a similar analogic purpose. One infamous reference depicted an emaciated prisoner named Fikret Alic reaching through barbed wire to shake hands with reporters. “With his rib-cage behind the barbed wire of Trnopolje, Fikret Alic had become the symbolic figure of the war, on every magazine cover and television screen in the world” (Alterman 1997). That picture 5

A part of the general framework of the agreement states that “[t]he parties agree to cooperate fully with all entities, including those authorized by the United Nations Security Council, in implementing the peace settlement and investigating and prosecuting war crimes and other violations of international humanitarian law” (Off. Spokesm., US State Dep. 1995, emphasis added).

conjured up images of Nazi concentration camps, and analogies were made between the Balkan conflict and the years preceding the Holocaust to help mobilize international law. The Holocaust narrative not only impelled legal intervention in the Balkans. The Holocaust as analogical device also spurred a new vocabulary for human rights law. Although the memory of the atrocities perpetrated during World War II immediately brought about the Universal Declaration of Human Rights, more recent human rights mandates are also products of Holocaust memory. The end of the Cold War removed an obstacle to the lessons of the Holocaust, as Holocaust memory moved from a particular act against those who were victimized to a universal symbol that referenced inhumanity more broadly (Levy & Sznaider 2004). That change in discourse paralleled renewed calls for international law to address human rights violations. As Alexander (2002, p. 49) remarks, “Representatives of various organizations, both governmental and nongovernmental, have made sporadic but persistent efforts to formulate specific, morally binding codes, and eventually international laws, to institutionalize the moral judgments triggered by metonymic and analogic association with the engorged symbol of evil.” The Holocaust as analogical device informs other efforts to reform law as well. The 1970s and 1980s witnessed a new discourse on Japanese internment during World War II, in which internment camps became concentration camps. Parallels between the Holocaust and the treatment of Japanese within the United States yielded formal apologies along with legal recourse in the form of monetary reparations (Alexander 2002, p. 46; see also Yamamoto 2002). With respect to reparations, Torpey (2001, pp. 337–38) further suggests that late-twentieth-century calls for monetary reparations for past injustices “share the common characteristic that the Holocaust is regarded as a standard for judging the seriousness of past injustices and [serves] as a template for claiming compensation for them.” www.annualreviews.org • Law and Memory

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Research on contemporary U.S. hate crime law also appears consistent with the thesis that analogies to the Holocaust can effectively buttress calls for legislation. Consider the testimony of Kevin Berrill of the National Gay and Lesbian Task Force, who drew an analogy with the Holocaust to underscore his support for the pending hate crime law (cited in Jenness & Grattet 2001, p. 55): Annu. Rev. Law. Soc. Sci. 2007.3:189-211. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/18/07. For personal use only.

I would like to point out that many of the witnesses at this hearing will be wearing a pink triangle, which was the badge that identified homosexual inmates of Nazi concentration camps. Although it is an often overlooked fact, tens of thousands of gay persons were herded into the camps, and, along with the Jews, gypsies, and others, were gassed and incinerated. We wear the triangle to remember them and to remind people of the terrible cost.

In sum, an evolving body of scholarship suggests that symbols of past evil can serve as analogical references that bolster calls for legal (and other) intervention in conflict. Research to date largely relies on case studies to advance that argument. However, little work investigates negative cases, such as those in which the Holocaust was used as an analogical device to no significant end. The counterfactual is also difficult to estimate. That is, would international law respond to contemporary violent conflict in the absence of analogical links to the Holocaust? And to what end can other past atrocities be drawn upon to generate support for current law and justice? These represent a sampling of unresolved questions that bear on the association between collective memory, analogies to past atrocity, and law.

Collective Memory, Historical Consciousness, and Law The institutionalization of collective memory as law is further mediated by historical consciousness. By this we mean a society’s exploration and evaluation of the past in light of the present (Balfour 2003) that, different 202

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from collective memory, does not imply a shared vision of the past. Law and law enforcement, from a Durkheimian perspective, become tools to confront the past, reestablish moral boundaries, and provide an institution through which the public can express sentiments concerning right and wrong (Mistzal 2003), similar to monuments and memorials as tangible representations of collective memories (Schwartz 1982, Vinitzky-Seroussi 2002, Wagner-Pacifici & Schwartz 1991). Writing on Durkheim’s contributions to memory and law, Misztal (2003, p. 132) suggests that “liberal law realizes its potential to construct solidaristic collective memory. The past endures in the present in legislation.” Building on this Durkheimian framework, King (2005) investigates whether U.S. law enforcement responses to hate crime covary with differences in visible collective memories of bigotry. This thesis does not proffer that physical commemorations such as monuments and memorials, themselves, directly cause legal action. Rather, the cultural sentiments that give rise to symbolic commemorations of past atrocities designate a greater awareness, or historical consciousness, of the manifestations and consequences of hatred. In line with work on the cultural representation of collective memories (Schwartz 1982), commemorations of past atrocity are indicative of a culture that is receptive and responsive to issues of hatred and violence. Three axioms are germane to that thesis. First, commemorations are imbued with meaning. They give tangible form to latent emotions and represent moral consciences, as symbolic commemorations of the past reflect contemporary culture (Schwartz 1982). Second, legacies of the past enable and constrain government decision making. That idea draws on Olick & Levy’s (1997) research on collective memory and German political culture; they show that German politicians and prominent members of civil society are constrained in their public discussions and positions on Israeli and Jewish affairs. The past penetrates the social and political sphere, encouraging


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new voices and begetting recognition and demands for justice (Vinitzky-Seroussi 2002). In line with these arguments, legacies of past atrocities may enable and constrain not only political claims-making (Olick & Levy 1997), but also law and its implementation. Third, the role of collective memory and cultural trauma in contemporary life varies across social context (Mannheim 1952, Schuman & Scott 1989, Scott & Zac 1993, Weil 1987). Memorials of Martin Luther King, Jr., for instance, vary by region and correlate with the socio-political terrain (Alderman 2000). Building on these characteristics of collective memory, King’s (2005) investigation into variations in hate crime law enforcement finds that Holocaust commemoration is predictive of hate crime law enforcement. Objective commemoration of a traumatic and hate-laden past, such as the Holocaust, is correlated with legal responses to crimes motivated by bigotry. Law, it appears, can legitimize and institutionalize collectively held sentiments about the past. Although an association exists between Holocaust commemoration and hate crime law enforcement, a less robust correlation is found when commemorations of the U.S. civil rights era and hate crime law enforcement are assessed (King 2005). One interpretation of that duplicity is that commemorations of foreign evil are channeled differently than remembrance of domestic wrongdoing (Savelsberg & King 2005). That argument is consistent with work on remembrance and collective memory in the American context. Kammen (1991) suggests an American tendency to depoliticize the past. That observation aligns with Balfour’s (2003) theoretical work on historical consciousness and legal redress concerning U.S. slavery. Balfour draws heavily on the writings of W.E.B. Du Bois to suggest that a “willful national amnesia prevented black citizens from enjoying in fact the freedom and equality they were guaranteed by law” (Balfour 2003, p. 33). Synthesizing a wealth of Du Bois’s scholarship, Balfour

rearticulates Du Bois’s thesis that the suppression of an overt and critical reflection on slavery in the nation’s collective memory serves as an impediment to legal redress (e.g., reparations) for the legacy of slavery. To that end, such “unwillingness to confront the past is connected to the failures of formal equality as an antidote to the poison of racial injustice” (p. 33). Balfour illustrates how consciousness of the past parallels legal and policy debates concerning equality and civil rights. The argument for reparations, she suggests, implicates “a structure of memory and critique” (pp. 39–40) whereby legal redress for slavery via reparations is “centrally a story of memory’s suppression” (p. 40). In short, how a nation’s collective memory is constructed can limit possibilities for legal change. The distinction between commemoration of foreign and domestic evil with respect to law and law enforcement is further highlighted in recent comparative work on collective memory and law. In their work on German and American laws concerning hateinspired crime and violence, Savelsberg & King (2005) suggest that American memorials rarely focus on domestic evil, but instead on great presidents and military accomplishments in combating foreign evil. In contrast, national collective memories of hatred and domestic atrocity (e.g., the Holocaust) are “deeply historicized” (p. 599) in German commemorations. That distinction maps onto nation-specific differences in hate crime law and law enforcement. U.S. federal hate crime law, for instance, avoids references to domestic history in such legislation, although references to foreign atrocity were mobilized by interest groups in the hate crime law movement ( Jenness & Grattet 2001). The German equivalent of hate crime law, as evidenced in the Basic Law and criminal code, instead acknowledges Germany’s Nazi past and the Holocaust and explicates categories of victims. Moreover, reflecting interpretations of the demise of the Weimar Republic, German law is simultaneously and overtly concerned with protecting the democratic state. www.annualreviews.org • Law and Memory

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Polletta’s (1998) research on commemoration of Martin Luther King, Jr., in the halls of the U.S. Congress raises additional questions about the context in which collective memories are implicated in the lawmaking process and to what extent references to the domestic past, such as the civil rights era, are efficacious in promoting legislation or related legal action. On the one hand, Polletta acknowledges that King’s name can be used to bolster calls for legislative action. References to King often surfaced in discussions of legislation to address intergroup conflict, such as federal legislation to assist with church arsons, or in calls for affirmative action (Polletta 1998, p. 486). King is invoked as a moral leader, and references to his teachings are used to legitimate legislation. Yet, the manner in which King’s legacy can be employed is constrained, and the meaning of his legacy is contested. African Americans who invoke the memory of Martin Luther King, Jr., to call for redistributive policies sometimes conflict with white speakers who emphasize progress that has already been made (Polletta 1998, pp. 490–91). African American elected officials, in particular, must balance their desire to legitimate themselves as champions of black interest via the lawmaking process with the limits of what they can say to a sometimes unsympathetic audience. In sum, collective memories both inform and reflect a historical consciousness that is objectified in legal institutions. Savelsberg & King (2005) refer to applied commemorations—commemoration in the context of judicial, legislative, or executive decision-making situations—as opposed to commemorations for their own sake as one crucial mechanism through which such objectification occurs. However, not all collective memories of wrongdoing generate consensus, and contested memories are less likely reflected in law. The role of Holocaust commemoration is markedly different from collective memories of U.S. slavery or civil rights abuses. The context of memory is thus consequential for law.


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Carriers of Collective Memory A line of neo-Weberian scholarship emphasizes the role of carrier groups as intervening in the memory-law nexus. Carrier groups represent bearers of social action (Weber 1976) that maintain a discourse on ideas and promote social values (Kalberg 1994, pp. 58–62). Interest groups, for instance, can act as carrier groups by evoking collective memories to legitimate claims for legal change. The specific collective memories of the past that groups recall, however, differ depending on which social groups are recalling events (Schuman & Scott 1989). Socio-legal research identifies similar tendencies in the realm of criminal law. Savelsberg & King (2005) suggest that in Germany the state is the primary carrier of collective memory, whereas disparate groups in civil society largely act as carrier groups in the United States. That difference, in conjunction with nation-specific collective memories and political institutions, partly accounts for variation in the framing of each nation’s respective laws concerning hatred. The protection of the democratic state as a pronounced theme in Germany contrasts with American law’s emphasis on the protection of vulnerable groups. Where the state has been the prominent carrier of collective memory (Germany), laws dealing with hatred and extremism have more directly institutionalized collective memory and protected groups that were victimized by the Holocaust. Differences are also apparent at the level of law enforcement. German law enforcement, in line with the state as carrier of collective memory, is embedded in the context of state protection units (Staatsschutzdezernate). By contrast, U.S. prosecutors’ working knowledge of hate crime maps onto their exposure to localized interest groups. Other work cites specific representatives of carrier groups, moral entrepreneurs, as mobilizing collective memory for purposes of lawmaking. Moral entrepreneurs occupy a central place in classic studies of social problems,


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and scholars of collective memory employ the related concept of “reputational entrepreneurs” (Fine 2001), actors who frame and deploy images of society and history consonant with a specific agenda in efforts to partly determine or control the memory of individuals. In his discussion of “righting old wrongs,” Galanter (2002) bridges the ideas of moral entrepreneurs, collective memory, and law. He claims that a “proliferation of efforts to reform the past” (p. 108) has characterized recent decades, particularly with respect to prejudicial and often violent injustices in the United States and abroad (see also Torpey 2001). Legal initiatives to right old wrongs include reparations, formal government apologies, and pardons.6 This apparent spike in redress for injustices that occurred decades or centuries ago raises numerous questions. Why, for instance, does such action arise at particular times and places? Why are some injustices redressed while others are not? For Galanter (2002), multiple characteristics of modern society account for such institutionalization of collective memory in law, including “the general extension of empathy in the late twentiethcentury society” (p. 120), criticism of government power, and optimism about the efficacy of institutions. Still, states formally address some memories of injustice while remaining reticent on others. Galanter suggests that injustices against ascriptive groups are more apt to be recognized through law or other government acts, such as formal apologies. Past wrongs based on ascriptive characteristics (caste, tribe, ethnicity, religion), he suggests, tend to inspire moral entrepreneurs, “organizers who devote themselves to investigating, publicizing and campaigning about old wrongs” (p. 122; see Diner 2000, e.g., p. 233, and Torpey 2001, p. 339, for related

6

Galanter (2002) cites numerous examples, such as the Vatican’s pardoning of Galileo in 1984, Wisconsin’s formal apology in 1989 for the 1932 Bad Axe Massacre, or the 1974 class action lawsuit that compensated participants of the 1930s Tuskegee syphilis study.

propositions). Memories of injustice against those with “primordial identities” (Galanter 2002, p. 122) are more easily mobilized for legal and other purposes. Other work suggests that carriers of collective memory are influential when they are representatives of the aggrieved group. For example, Izumi (2005) suggests that collective memory of the Japanese American internment influenced public support for the repeal of the McCarran Internal Security Act of 1950 that limited due process rights concerning detention during a national emergency. Collective memory of internment, in concert with the presence of previously interned Japanese protesters, effectively added credence to the protest movement. Another body of research suggests that collective memory can inspire micromobilization—interactions among actors in which meanings of past events and identities are formed—which in turn motivates activism. Harris (2002), for instance, examines how collective memories are used as catalysts for an individual’s involvement in collective action. Stories of triumph and tragedy by elders who had witnessed civil rights abuses, such as the murder of Emmett Till, can motivate political participation among younger cohorts. As Dawson (1994, p. 51, cited in Harris 2002, p. 157) articulates, “the collective memory of the African American community continued to transmit from generation to generation a sense that race was the defining interest in individuals’ lives and that the well-being of blacks individually and as a group could be secured only by continued political and social agitation.” For Harris, collective memories of past injustice are used to cement loyalties to a movement, provide inspiration through stories of past successes, and ultimately foster activism. That activism, in turn, can potentially lead to legal change. The narrative of Emmett Till’s slaying reinvigorated a commitment to racial justice and ultimately inspired political activism among some African Americans. Collective memories of traumatic events can thus serve www.annualreviews.org • Law and Memory

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as catalysts for articulating grievances for purposes of political action and legal change.

BRIEF CONCLUSIONS AND FUTURE DIRECTIONS


A new and growing body of literature on the reciprocal relationship between law and collective memory speaks to direct and indirect ways in which law and collective memory mutually affect and constitute each other. Legal trials evoke collective sentiments, and they may impress memories of past atrocities on groups and peoples. They do so selectively though, given the institutional constraints of law, and they depend on mass media that impose further selectivities, while simultaneously competing with other fields of memory production. A new body of literature also discusses the institutionalization of collective memory as law, specifically how collective memories affect the making and enforcement of law. Although case studies already dominate the field, more such studies are warranted, for cases of atrocities but also regarding other substantive terrain. One example is the cumulative effect of trials of everyday crimes on the collective representation of evil and of large cases in other areas such as corporate crime. Comparative research is also potentially fruitful, particularly studies that systematically analyze the conditions of trials and their conse-

quences relative to their alternatives on collective memories as expressed in mass media, political speeches on memorial days and in decision-making situations, memorial sites, history textbooks, works of art, and public opinion polls over time. The systematic collection of such data would also enhance future work on the effects of collective memories on law and its enforcement, through the use of recognized past evils as analogical devices, via historical consciousness, and through the presence of carrier groups. Future research should also empirically assess how different types of legal proceedings employed to confront the past—TCs, amnesties, trials, and types of punishments dispensed—influence attitudes and behaviors. That question has been the subject of prior research on what should occur following a conflict (Minow 1998, Wilson 2003). Yet, there is less explanatory work on the impact of legal proceedings, and collective memories articulated therein, on subsequent outcomes such as intergroup violence or respect for attitudes toward law (save Gibson 2004, on South Africa). Especially needed is comparative research to assess how TCs, in comparison with trials, lustration procedures, or outright amnesties, affect attitudes concerning intergroup violence and retaliation and what the consequences are for future escalation or de-escalation of violence.

SUMMARY POINTS 1. Law, through its ritual force, is an effective tool in the construction of collective memory. 2. Law, through its particular logic, contributes to the construction of narratives distinct from those produced in other institutional realms such as diplomacy, politics, religion, or social science. Narratives constructed through legal proceedings tend to focus on individual offenders at the neglect of historical trajectories, larger social and cultural forces, and collective responsibilities. 3. Narratives constructed through legal proceedings are typically mediated by other institutions such as scholarship and mass media before they affect collective memories. 4. Law may affect collective memory indirectly as it regulates the production of, access to, and dissemination of information about the past.

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5. Collective memory may become institutionalized as law through diverse mechanisms such as applied commemorations. 6. Carrier groups of collective memory are crucial contributors to lawmaking. 7. Participants in lawmaking processes make use of analogical devices and historical consciousness to affect their outcome.


FUTURE ISSUES 1. More case studies are needed to explore the consequences of different types of legal proceedings and their alternatives for collective memory. 2. Research is needed, including systematic comparative research, to examine the construction of narratives created by different legal forms and alternative responses to atrocities. 3. Research is needed, including systematic comparative research, to examine the interaction of legal narratives with other social and cultural forces in the construction of collective memories. 4. The role of law-induced collective memories as alternatives and contributors to classic functions of criminal law such as deterrence, retribution, rehabilitation, and compensation warrants future investigation.


ACKNOWLEDGMENT Work toward this article was supported by the 2006 David Cooperman Summer Institute, Department of Sociology, University of Minnesota.

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Schwartz B. 1982. The social context of commemoration: a study in collective memory. Soc. Forces 61:374–402 Schwartz B, Schuman H. 2005. History, commemoration, and belief: Abraham Lincoln in American memory, 1945–2001. Am. Sociol. Rev. 70:183–203 Scott J, Zac L. 1993. Collective memories in Britain and the United States. Public Opin. Q. 57:315–31 Siegelman P, ed. 1995. Special issue: law and lustration: righting the wrongs of the past. Law Soc. Inq. Vol. 20(1). 338 pp. Sikkink K, Booth Walling C. 2007. The impact of human rights trials in Latin America. J. Peace Res. 44:427–45 Simmel G. 1950. The secret and secret society. In The Sociology of Georg Simmel, ed. KH Wolf, pp. 300–78. New York: Free Press Smelser NJ. 2004. Psychological trauma and cultural trauma. See Alexander et al. 2004, pp. 31–59 Smolla RA. 1983. Let the author beware: the rejuvenation of the American law of libel. Univ. Penn. Law Rev. 132:1–94 Teitel RG. 2000. Transitional Justice. Oxford: Oxford Univ. Press Todorov T. 1996. The abuses of memory. Common Knowl. 5:6–26 Torpey J. 2001. “Making whole what has been smashed”: reflections on reparations. J. Mod. Hist. 73:333–58 Trevaskes S. 2004. Propaganda work in Chinese courts: public trials and sentencing rallies as sites of expressive punishment and public education in the People’s Republic of China. Punishm. Soc. 6:5–22 U.S. Inst. Peace. 2006. Truth commissions digital collection. http://www.usip.org/library/ truth.htm Vinitzky-Seroussi V. 2002. Commemorating a difficult past: Yitzhak Rabin’s memorials. Am. Sociol. Rev. 67:30–51 Wagner-Pacifici R, Schwartz B. 1991. The Vietnam Veterans’ Memorial: commemorating a difficult past. Am. J. Sociol. 97:376–420 Weber M. 1976. Economy and Society. Berkeley: Univ. Calif. Press Weil F. 1987. Cohorts, regimes, and the legitimization of democracy: West Germany since 1945. Am. Sociol. Rev. 52:308–24 Wells G. 1993. What do we know about eyewitness identification? Am. Psychol. 48:553–71 Wilson RA. 2001. The Politics of the Truth and Reconciliation Commission in South Africa: Legitimizing the Post-Apartheid State. Cambridge, UK: Cambridge Univ. Press Wilson RA. 2003. Anthropological studies of national reconciliation processes. Anthropol. Theory 3:367–87 Wright JP, Cullen FT, Blankenship MB. 1995. Chained factory workers exist: media coverage and a corporate crime that killed 25 workers. Crime Delinq. 41:20–36 Yamamoto EK. 2002. Reluctant redress: the U.S. kidnapping and internment of Japanese Latin Americans. See Minow 2002, pp. 132–39 Zerubavel E. 2004. Time Maps: Collective Memory and the Shape of the Past. Chicago: Univ. Chicago Press

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Law and Lawyers Preparing the Holocaust Michael Stolleis Professor Emeritus, Johann Wolfgang Goethe-Universität Frankfurt, 60325 Frankfurt ¨ europäische Rechtsgeschichte, am Main, Germany; and Max-Planck-Institute fur D-60489 Frankfurt am Main, Germany; email: [email protected]


Key Words

The Annual Review of Law and Social Science is online at http://lawsocsci.annualreviews.org

Weimar Republic, National Socialism, Germany, dictatorship, legal system, persecution of minorities, criminal law, civil law, administrative law, labor law, social security, judicial system, Nazi law

This article’s doi: 10.1146/annurev.lawsocsci.3.081806.112815 c 2007 by Annual Reviews. Copyright All rights reserved 1550-3585/07/1201-0213$20.00

Abstract After an introduction into the paradoxes of the coexistence of a traditional legal order, oppression, and persecution of opponents and minorities under the National Socialist government in Germany (1933–1945), the article explains how deep the National Socialist ideology penetrated several fields (constitutional and administrative law, penal law, tax law, etc.). I conclude with a short reflection concerning the problem of historicizing Nazi law.

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INTRODUCTION


Defining justice and unjustness under the Swastika has been an irritating challenge in Germany and all over the world for almost two generations. During the regime of the National Socialists from 1933 to 1945, the legal system of the Deutsches Reich was largely sound at first, although illegal camps and a variety of breaches of law had already arisen during the first weeks. Whereas some were able to defend their rights quite normally, others had to flee or forfeit their citizenship. One moderate nationalist minister of justice of the Weimarer Republik, Franz ¨ Gurtner, remained in office until his death in 1941 and guaranteed normality, symbolically at least. Because of the existence of the Geheime Staatspolizei (Gestapo) and the SS, a legal black hole was formed and extended continuously. Law and despotism coexisted for more than 12 years—with an ever increasing part of lawless spaces or of law interpreted in terms of the so-called National Socialist “Weltanschauung” (world view).

LAW AND DESPOTISM It may seem paradoxical to speak of law and despotism in the same breath, for to do so raises the dilemma of the existence of law in a system that is on the whole unlawful and unjust or that at least commits many unlawful acts. Using terminology familiar since Aristotle, we can phrase the statement as a question: How is it possible at all to speak of law under tyranny? There are at least three possible answers. First, no tyranny exercises power with perfect consistency. Even the worst regime has niches of order, remnants of law, islands of calm. There are always individuals who refuse to be completely compromised, who resist political pressure, and who behave “correctly,” not only in their private affairs but also, and especially, in their official capacities. There are always areas of law in which procedures continue to be just and lawful. To be sure, the 214

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number of such areas will shrink the longer a despotic regime is in power and dissolves all norms, but some will remain, at least for a while. This answer presupposes two things: a concept of law that is material and substantive in content, and a system of values as the underpinning of that concept, whether or not it calls itself natural law. In this case, law is either close to morality or merges with it. Only a norm of good content acquires the quality of law. A person who kills a tyrant acts in accord with morality, and the deed is therefore not unlawful. Second, tyranny dispenses with a substantive distinction between law and nonlaw and describes as law anything that meets certain formal criteria. These criteria are determined by a given constitution. If the constitution has ¨ been reduced to the principle that the Fuhrer’s will is law and determines what is right and wrong, any expression of the state’s will that is made with a claim to validity is law to the extent that it conforms to that will. This conception of the law is value-neutral and allembracing. It excludes only those acts that fail to meet even formal criteria, essentially only outright terror and arbitrary violence. Whatever else presents itself in the guise of a legal norm—possibly even the rules governing a concentration camp—is law. Consequently, a person who attempts to kill the tyrant is acting unlawfully, and if the attempt fails, he or she is lawfully sentenced and executed by the system. The fact that the individual acted in accord with morality, has a clear conscience, and is revered by posterity as a martyr is a second (moral) level that must be distinguished from the law. Third, one might deny that any acts of state that occurred in Germany between 1933 and 1945 had the quality of law. This position could be justified on the basis of natural law by maintaining that the regime was from the very outset incapable of rendering law and justice; it was, in the words of Augustine, a “gang of criminals.” Alternatively, it could be justified on the basis of legal positivism, in which case it would have to start from the Enabling Act


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of March 24, 1933, arguing that, because this act was invalid, all law that followed was invalid, too. Both arguments run into problems because the acts of state in question were, at least in part, voluntarily recognized as legal acts at home and abroad. In that sense, effective law was rendered in all areas of the law. Obvious difficulties work against a stance of detached observation in dealing with National Socialism and the law that was in force in Germany between January 30, 1933, and May 8, 1945. I am German; I grew up after 1945 in a peaceful and prosperous society and was neither directly nor indirectly a victim of that system. While I, like most people of my generation, do not have a sense of personal guilt, I do feel a sense of shared responsibility for that period and its crimes. Finally, I am a lawyer and thus have been shaped also by my study and practice of the prevailing system of law, a system to whose values I feel a strong personal attachment. These are the forces that have shaped my writing. Of course, my methodological conscience demands that I do whatever I can to neutralize their normative influences, to avoid perceiving or depicting the past in a distorted manner. If we ask whether the first two answers sketched above can be found in the corpus of National Socialist law, we encounter a complex situation. To begin with, there were important areas of the law that remained seemingly unchanged on the outside and functioned normally, just as they had during the Weimar Republic. We know that the National Socialist regime took a strong interest in preserving the impression of normality. Its rule was based essentially on its ability to gain the cooperation of the bourgeois economic elites and, above all, the civil servants and judges who were discontent with the Weimar Republic. Those elites were largely nationalistic and antiparliamentarian in their thinking, but they also had a strong dislike of open terror. Before they could come to terms with the Nazi regime, they needed to be reassured that a national Rechtsstaat (state based on the rule of law) would be established, that

everything would be done in accordance with the law, and that excesses would not be tolerated [the debate about the principle of rule of law (Rechtsstaat) after 1933 is documented in Stolleis 2004]. This deceptive facade was completed by the ruling party’s endorsement of a positive Christianity (point 24 of the party program). As far as the legal system was concerned, the initial strategy of the National Socialists was therefore to change only those elements that were indispensable to securing power and demarcating the main ideological positions. All other wishes for reform, it was said, could be fulfilled at some future time, after the final victory. This was the approach the National Socialists took with respect to civil and criminal law: They preserved the facade of the civil Rechtsstaat, did not overburden their own apparatus with overly ambitious reform plans, and in this way avoided scaring away the bourgeois elites. In the Academy for German Law, these elites were given a platform where discussion could take place without pressure to translate anything into politics. In this way, the landscape of National Socialist law presented a very diverse picture. The statutory law that was in force during the Weimar Republic was, in principle, taken over en bloc and continued to be valid unless it was superseded by new legislation. As far as legislation is concerned, we should rather speak of islands of injustice interspersed within a system that, on the whole, still functioned as law. However, it is well known that this applies at most only to the initial years of the regime. As the regime’s output of laws continued, the Reichsgesetzblatt (the journal that published new laws) grew ever larger, and the ratio of traditional law to new law was progressively reversed and slowly changed to the detriment of the old order. The more secure the regime felt, the more openly it could jettison elements of the civil Rechtsstaat. This development also changed the relationship between the normative state (Normenstaat) and the prerogative state (Maßnahmestaat), first described in 1940 by Ernst Fraenkel in his book Der Doppelstaat (The Dual

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State) (the first German edition was published in 1974; see now Fraenkel 1999). Fraenkel underscored the fact that normality and terror existed side by side, and he saw in this a structural principle of the National Socialist state. Whether the Nazi system would have had to retain a minimum of regularity in order to survive, or whether, failing that, it would have sunk into a chaos of rival power centers and become ungovernable even without the war are not questions we can answer. But there is much to suggest that the relationship between norm and prerogative (law and injustice) would not have remained stable. Instead, it would have continued to shift in one direction or another, and not necessarily in a selfdestructive one. Authoritarian regimes, too, can develop forces that stabilize the system and generate a surprisingly long life span, as we now know from both Franco’s Spain and the Soviet Union. However, it is also characteristic of National Socialist law that the changes were only in part changes in legislation. While it is true that the legislator—a disparate conglomeration of lawmakers working side by side, including Hitler and the Reich Chancellery, ministries, the Party Chancellery, the SS, plenipotentiaries, and Gauleiter—produced a wealth of norms, the existing positive law was developed further on a day-to-day basis through a million individual decisions in the administration and the judicial system. What judges and administrative officials thought was right prevailed with the help of these decisions. Scholars have long since recognized that administrators and judges sometimes had no law to go on, sometimes gave a broad interpretation to the law (which was always in need of interpretation), and sometimes, in fact, overtook the law or raced ahead of it. ¨ Bernd Ruthers’s [1968 (1997)] book Die unbegrenzte Auslegung (The Unrestrained Interpretation of the Law) called attention to this activity by the judges. More than two decades after the war, his work also refuted what the judiciary had long clung to as an exonerating thesis: namely, that the judicial system had, to


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a certain extent, become a victim of National Socialist laws because of the legal positivism so deeply ingrained in its representatives as a result of their legal training (Rottleuthner 1983). Today, it is widely held that the legal system that operated between 1933 and 1945 and claimed validity was a complex mix involving a judiciary and a bureaucracy that reacted quickly and legislative activity that progressed slowly. It is also clear that the various fields of the law and branches of the court system, in which the regime took varying degrees of interest, showed differing rates of change. However, it is a myth that some areas remained entirely untouched by the political claims of the system. Neither the frequently cited land register law, nor the social security or tax laws, nor the law concerning debts, property, family, and inheritance was in any way immune. Of course, there were gradations of change. Areas that were highly technical and thoroughly standardized, and whose ability to function the regime was unable or unwilling to interfere with, were subjected to much less pressure.

DIFFERENT MEANINGS OF NATIONAL SOCIALIST LAW The following can be described as National Socialist law: 1. In the narrow sense, the law that was strongly influenced by National Socialist ideology (racial laws, marriage and family laws, the Hereditary Farm Law, labor law); 2. all the statutory and case law that was newly created under National Socialist rule and superseded the older legal order; 3. the entire legal order that was in force, practiced, and taught between 1933 and 1945. This threefold distinction was important to the legal regulations passed by the Allies to “liberate the German people from National


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Socialism and militarism” (Etzel 1992), to the process of denazification, to the continuing validity of law from the time before the convening of the Bundestag (Article 123 of the Basic Law), and to the rendering of legal decisions on the continuing validity of norms and legal relations from that time (BVerfGE 3, 58; 4, 115; 6, 132; 23, 98).1 It also describes the stages of scholarly study of Nazi law. At first, as one would expect, the focus was on the injustice and enormous suffering perpetrated by the system and on the legal norms that violated “fundamental principles of justice” (BVerfGE 23, 98, 106). Subsequently, the field of inquiry slowly broadened to include the remaining legislation, public administration, and the administration of justice, as well as the legal doctrine of National Socialism. Only very recently, in view of the continuing validity of norms taken over from the imperial period and the Weimar Republic, have scholars come to modify the overly simplistic epochal boundaries of 1933 and 1945, especially those scholars who take a subtler approach to questions concerning the continuity of the legal order of the Weimar Republic. The goals, methodological principles, and style of the scholarly study of National Socialist law have also changed over time. The first years were dominated by eyewitness accounts,2 bewildered helplessness and affirmations of support for democracy and natural law (Schelauske 1968). Questions such as “How could this happen?” and “What now?” were intended not so much to enhance scholarly understanding as to shape a political program (von Hippel 1946, Bader 1947, Coing 1947, Schmidt 1947). Advocates of natural law fought legal positivism as the main culprit, in the process often overlooking the fact that they were using the same arguments with which National Socialism itself had opposed

positivism, though now under a different political banner. Similarly, some took methodological approaches that had been embarked upon after 1933: They propagated a new order of political values and recommended that these be implemented via the “breach points” (Einbruchstellen) of the general clauses.3 During the first years of the Federal Republic of Germany, the scholarly study of National Socialist law was overshadowed by other, more pressing tasks. Almost without exception, the law faculties and their legal historians shied away from the topic. The first surveys of the legal changes under National Socialism were still clearly subordinated to nonhistorical purposes that were pedagogical, apologetic, or political in nature, and they were of limited value. The perspective of “those who had been there” was narrowed down to a pattern of explanation that encompassed their own experiences. It took shape in the climate of a general “coming to terms with the past” (Vergangenheitsbewältigung) and involved a mixture of (a little) self-recrimination and (a lot of ) self-justification, with the two motivations often difficult to tell apart. From both perspectives, the National Socialist framework of power, together with its law, appeared to be a system of monolithic consistency, overpowering for victims and fellow travelers alike. The political situation of the Cold War also changed the way the past was perceived. Anti-Bolshevism proved a thread of continuity between National Socialism and the young Federal Republic. All this has been exhaustively discussed in the controversy over the various theories of totalitarianism and fascism (Wippermann 1997). The domestic political consensus in the Federal Republic began to crack with the end of the Adenauer era. National Socialism was one of the controversial issues that were igniting a generational conflict. The German

1

Decisions of the German Constitutional Court (Bundesverfassungsgericht) are designated as BVerfGE in parentheses.

2

The most important document of this early era seems to be Kogon [1946 (1974)].

3

For example, BVerfGE 7, 198, the most important decision for the enforcement to bring fundamental rights to validity into the new legal order. See Henne & Riedlinger (2005).


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Democratic Republic (DDR) sought to capitalize on this for propaganda. Its Brown Book and Gray Book were distributed at universities in former West Germany and widely read (Braunbuch 1968, Graubuch 1967). Beginning in 1965, in response to student initiatives, interdisciplinary lecture courses on National Socialism were organized at various universities.4 They also made important contributions to the history of National Socialist law. Above all, however, they broke the taboo of a public discussion of the topic and gave impulse for further research. A growing stream of specialized studies of National Socialist law appeared in their wake. The pioneer studies are Mommsen (1966), Jäger [1967 (1982)], ¨ Ruthers [1968 (1997)], Broszat [1969 (2000)], Kiesewetter [1974 (1995)], Stolleis (1974). Most recently, the topic has also been addressed in university histories (see, for example, on Freiburg, Hollerbach 1991; Berlin, Loesch 1999; Straßburg, Schäfer 1999; ¨ ¨ Munchen, Bohm 1995; Bonn, Schmoeckel 2004; Heidelberg, Eckart et al. 2006). Although these first publications were obviously connected with changes in domestic politics after 1965–1968, the growing number of sources and the increasing depth and subtlety of historical analysis developed a dynamic all their own. The professional standards applied to the quality of the scholarship rose; overly simplistic explanations and the political premises that had been dominant in the beginning lost their persuasive power. [However, that was true only in the Federal Republic. Corresponding scholarly work in the DDR lagged far behind in volume, despite the propaganda against the Federal Republic mentioned earlier; above all, it was to the very


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4

¨ In Munchen, “Die deutsche Universität im Dritten Re¨ ich,” organized in 1966; in Tubingen, Andreas Flitner offered “Deutsches Geistesleben und Nationalsozialismus” in 1965; in Berlin, “Nationalsozialismus und Deutsche Universität,” was organized in 1966; in Gießen, “Kritische Justiz” was organized in 1968–1969. A second series of lecture courses began 20 years later, for example in ¨ ¨ Munster (1985), Frankfurt (1988), Gottingen (1989), and Kiel (1992).

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end strictly tied to political purposes and thus also qualitatively of limited value. The only official textbook for the training of legal history in the DDR did not mention Nazi law (see Tschernilowski 1980).] In this way, the gaps in scholarship were slowly beginning to be filled in. It was now possible to present large syntheses of criminal law—which was particularly important in shaping National Socialist law—and the law of discrimination against minorities, which had attracted attention from the beginning (Majer 1981, Werle 1989). Scholars looked at areas of the law that might seem somewhat remote, such as agrarian law (von Kruedener 1974), tax law and economic law (Voss 1995),5 labor law, and social law (Mason 1977; see also Stolleis 2003 and references therein). Some researchers reconstructed the activities of the National Socialist Lawyers’ Association (NSRechtswahrerbund) and of the Academy for German Law (Sunnus 1990, Pichinot 1981), whereas others wrote monumental studies analyzing individual courts and institutions and, in particular, judicial policy from the perspective of the Reich Ministry of Justice (Gruchmann 1987, Kohl 1991). A collection of essays casts sidelights on “everyday justice” (Diestelkamp & Stolleis 1988). The legal decisions of the Oberlandesgericht (appellate court) in Celle received thorough scrutiny ¨ (Schroder 1988), as did the Special Court in Bremen (Wrobel 1991–1994) and the handling of Nazi crimes in terms of criminal law after 1945 (Oppitz 1979). Eventually, even attorneys themselves drew the attention of historians (Krach 1991, Douma 1998).

SEVERAL FIELDS Today, after three decades of wide-ranging scholarship, we are able to describe the most important fields of National Socialist law with

5

From the Max-Planck-Institute for European Legal History (Frankfurt/Main) project on “Europe under Dictatorship,” see the following volumes: Bähr & Banken (2006), Bender et al. (2006), Kahn (2006).

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much greater precision. We can underpin such a description with a few basic characteristics of the legal situation at the time.


Constitutional Law After January 30, 1933, Germany witnessed a transition from a parliamentary system (or what was left of it) to a dictatorship in just a few months. The parties were dissolved6 through barely legalized terror7 and political pressure, and the National Socialist German Workers’ Party (NSDAP) was made the state party [Matthias & Morsey 1960]. Intermediary powers and controls were abolished when the party staffed the most important executive posts (police power) with party functionaries, created a network of horizontal ties between the party and the state apparatus,8 and refashioned the professional civil service into one that was cleansed of political enemies and victims of racial persecution and was duty-bound to the new state.9 At the same time, however, these developments created the basis for new power struggles that continued to the end of the regime. The coordination (Gleichschaltung)10 of the states (Länder) put an end to federalism, in violation of the constitution. The Reichsrat was abolished11 as the organ of the states in the legislative process. It had become as superfluous when, after the suppression of the KPD (Communist Party) and against the opposi-

6

Gesetz gegen die Neubildung von Parteien vom 14. Juli 1933, Reichsgesetzblatt I, 479.

7 Verordnung des Reichspräsidenten zum Schutz von Volk und Staat vom 28. Februar 1933, Reichsgesetzblatt 1933 I, 83.

tion of the SPD (Social Democratic Party), the Reichstag had acquiesced in its own emasculation through the Enabling Act.12 Thereafter, the Reichstag existed only as an organ of acclamation that could provide plebiscitary legitimacy and as a sounding board for declarations in foreign policy.13 After the death of President Hindenburg, Hitler united in his person the offices of Reich President and Reich Chancellor.14 The principle of the separation of powers and the distinction between public and private law—including the liberty-securing guarantees of the liberal Rechtsstaat—were abolished, in part openly and in part tacitly. Accordingly, the forms of free social organization— unions, professional organizations, associations, politically significant clubs—were either done away with or “coordinated.” Only the churches were able to resist that development in the so-called Kirchenkampf (struggle between church and state), although they suffered heavy losses in charitable work and in the collection of donations. The process of formulating political objectives was progressively put under the control of the government, and the Reich Ministry for Public Enlightenment and Propaganda, set up in March 1933 and headed by Joseph Goebbels, took over the centralized regulation of language. The free press was eliminated15 in accordance with Hitler’s belief that freedom of the press was “objective lunacy” [Hitler 1938 (1993)]. Official supervision and control of art through the Reich Chamber of Culture was along much the same lines, if the remaining artistic activity that had not emigrated or been suppressed can be called art.

8

Gesetz zur Sicherung der Einheit von Partei und Staat vom 1. Dezember 1933, Reichsgesetzblatt 1933 I, 1016.

9

Gesetz zur Wiederherstellung des Berufsbeamtentums vom 7. April 1933, Reichsgesetzblatt 1933 I, 175; Deutsches Beamtengesetz vom 26. Januar 1937, Reichsgesetzblatt 1937 I, 39.

12 The famous “Ermächtigungsgesetz,” Gesetz zur Behebung der Not von Volk und Reich vom 24. März 1933, Reichsgesetzblatt 1933 I, 141. 13 ¨ Gesetz uber Volksabstimmung vom 14. Juli 1933, Reichsgesetzblatt 1933 I, 479.

10 ¨ Gesetz uber den Neuaufbau des Reichs vom 30. January 1934, Reichsgesetzblatt 1934 I, 75.

14

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15 Schriftleitergesetz vom Reichsgesetzblatt 1933 I, 713.

¨ Gesetz uber die Aufhebung des Reichsrats vom 14. Februar 1934, Reichsgesetzblatt 1934 I, 89.

¨ Gesetz uber das Staatsoberhaupt des Deutschen Reichs vom 1. August 1934, Reichsgesetzblatt 1934 I, 747. 4.

Oktober

1933,


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The result was a militarized and authoritarian centralized state that sought to gloss over the clash of competing interests with strident propaganda about a “communal way of thinking” (Gemeinschaftsdenken). Numerous power centers competed against one another within that state, although to the end they did so without posing a serious threat to the dom¨ ¨ inant position of the Fuhrer (Huttenberger 1976). A constitution in the usual sense no longer existed, even if the Weimar Constitution of the Reich was not formally abrogated. National Socialist legal literature did try to combine a few so-called “basic laws” into a constitution (Huber 1939), but this normative framework was not intended to impose any sort of self-restraint on the exercise of power. Rather, a lack of rules and a hostility to the law increasingly dominated the scene. Alongside the law there were “arbitrary measures” (Maß¨ nahmen) and “Fuhrer’s orders,” some of which were no longer even published. Areas in which the application of the law was “normal” stood alongside arbitrary terror. The move to make the remaining normative guarantees of the law dependent on the concept of the “welfare of the national community,” which could be defined however one wanted, was deliberately used by the regime as a way of generating fear. Step by step the “dual state” (Fraenkel 1999) was turned into the “SS state” [Kogon 1946 (1974)]. Acts of state bound by the law were replaced by a militaristic or pseudomilitaristic dynamism, which was driven by vague imperialistic goals and accompanied by increasing problems of self-regulation. Constitutional scholars reacted in various ways to these developments (for details, see Stolleis 2004, note 2, 249 ss). Some fled (H. Kelsen, H. Heller, G. Leibholz, E. Kaufmann, H. Nawiasky), and the older gen¨ R. Thoma, H. eration withdrew (G. Anschutz, Triepel, R. Smend). A few established scholars (C. Schmitt, O. Koellreutter, E. TatarinTarnheyden, H. Gerber) and a whole series of younger university teachers (E. Forsthoff, ¨ E.R. Huber, G.A. Walz, Th. Maunz, R. Hohn, ¨ E. Kuchenhoff, P. Ritterbusch) declared


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themselves in favor of National Socialism— whatever that may have meant concretely. No significant works were published on the theory of the state or constitutional law comparable to those of the 1920s, with the possible exception of Huber’s (1939) summarizing and synthesizing book, Verfassungsrecht des Großdeutschen Reiches (Constitutional Law of the Greater German Reich). In the end, the voices that spoke about constitutional law fell silent. Those authors who did not stop publishing altogether chose innocuous topics in legal history, international law, and administrative law.

Fundamental Violations of Equality Closely linked to constitutional law were fundamental violations of the principle of equality through the disenfranchisement of minorities. This began when the regime revoked the citizenship of its opponents.16 Soon after came the first discriminatory and persecutory measures against German (later also European) Jews, as well as against other political, religious, or racial minorities.17 These measures intensified from a series of cunning and insidious acts of disenfranchisement and humiliation (confiscation of property, compulsory levies, “Aryanization” of businesses, forced adoption of the first names “Israel” and “Sarah” for Jews, wearing of the yellow star, and so forth) to a state-organized pogrom in 1938 (Kristallnacht) and the murder of millions in the extermination camps (Friedlaender 1998, 2006). Until the gruesome final phase, in which disguise seemed superfluous, all discriminatory and disenfranchising measures were enacted within the

16

¨ ¨ Gesetz uber den Widerruf von Einburgerungen und die ¨ Aberkennung der deutschen Staatsangehorigkeit vom 14. Juli 1933, Reichsgesetzblatt 1933 I, 480. 17 I have room here only for a brief mention of the Nurem¨ berg Laws concerning race: Reichsburgergesetz vom 15. September 1935, Reichsgesetzblatt 1935 I, 1146; Gesetz zum Schutze des deutschen Blutes und der deutschen Ehre vom 15. September 1935, Reichsgesetzblatt 1935 I, 1146.

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forms of the law; they were published and commented on by jurists. The reasons hitherto given to explain at least the judiciary’s role in the injustice—the anti-Semitism that pervaded bourgeois circles, the coming together of legal positivism and the “subservient German spirit,” as well as the latent and common readiness of majorities to oppress minorities—shed only a partial light on the phenomenon.

The judicial system was the target of the first concrete actions, which were aimed at personnel policy and at providing guidance for the “cleansed” judges by educating them ideologically through “governing principles” (Schmitt 1933). The principles laid down by the Reichsjuristenfuhrer ¨ (leader of the jurists of the Reich), Hans Frank, on January 14, 1936, were the official line: “The basis for the interpretation of all legal sources is the National Socialist ideology, particularly as expressed ¨ in the party program and the Fuhrer’s statements. When it comes to those decisions by ¨ the Fuhrer that are couched in the form of a law or a decree, a judge has no right of judicial review. A judge is also bound by other ¨ decisions of the Fuhrer, insofar as they give

unequivocal expression to the desire to establish a law.”19 Both during the period of the seizure of power and during the war, interpreting the older law under the guidance of National Socialist ideology proved to be superior to legislating new law. It was faster and more flexible, and in individual cases it could be more easily criticized and invalidated (these interesting documents, called “Richterbriefe,” are printed in Boberach 1975). The regime evidently accepted the fact that the vague nature of National Socialist ideology in turn created some maneuvering room, which was used in various ways. Actual laws, by contrast, had to be measured against National Socialism’s own claims. They also developed a certain binding effect that was bothersome to the new rulers. Thus, the move of turning the legal system into an instrument serving the goals set by the leadership ran on two tracks. Alongside hectic legislative activity that pushed “prerogative laws” increasingly to the foreground, above all, “unrestrained interpretation,” to ¨ use Ruthers’s [1968 (1997)] phrase, changed the previous state of the law. The National Socialists, too, realized that it was to their advantage initially to take over the older legal system “en bloc, in order to wrench it out of the framework of the Rechtsstaat through decreed maxims of interpretation and general clauses” (Ridder 1958). Disregard of original legislative intent by ideologically guided judges became far more significant in the everyday legal life of National Socialism than injustice directly commanded by the lawmaker. And that is why the thesis disseminated in the 1950s—that the judiciary, because of its positivist orientation, had been helpless in the face of a legislator liberated from all constraints—contained only part of the truth, and why as a sweeping explanation it is downright misleading (one of the most influential

18 Reichserbhofgesetz vom 29. September 1933, Reichsge¨ setzblatt 1933 I, 685; Gesetz uber den vorläufigen Aufbau des Reichsnährstandes vom 13. September 1933, Reichsgesetzblatt 1933 I, 626.

19 Leitsätze, in Deutsche Rechtswissenschaft, Vol. 1 (1936) 123 et seqq., and in Deutsche Juristenzeitung, Vol. 41 (1936) 179 et seqq.

Agrarian Policy In most of the traditional areas of the law, the National Socialists were initially confronted with the problem of having to govern with the existing law and judicial apparatus without any mature concepts of their own. One exception was the field of agrarian policy. Drawing on older theoreticians (G. Ruhland), they had already worked out a concept of state guidance with a corporative structure, price controls, and market guarantees.18

Judicial System


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contributions in the debate was Franssen 1969). Already during the Weimar Republic, wide segments of the judiciary had chosen to oppose the democratically legitimized ¨ legislative body (Kubler 1963). That is why the Nazis’ call to “overcome narrow normatism” through legal interpretation—using the slogans “concrete thinking about order and ¨ organization,” “the Fuhrer’s will,” “needs of the Volk community,” “common weal,” “loyalty and faith,” “immorality,” or “healthy popular sentiment”—no longer posed any problems of method (see Stolleis 1974, with further references). Little research has yet been done on the degree to which such an “ethnic-national natural law” was translated into practice, on the affinity of various branches of the judiciary for taking this step or their relative immunity to it, or on the tension between rhetorical effort and practical results (and here one can also find many highly praiseworthy cases of quiet and courageous resistance). And even though we now know much more about judicial policy on a ministerial level—thanks, above all, to Lothar Gruchmann’s (1987) monumental study—it is on the whole still true, as Dieter Simon (1975, p. 54) wrote three decades ago, that “we don’t even have the basic outlines of a critical legal history of the Third Reich.”


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Administration and Administrative Law The constitutional coordination of the states turned all existing administration into Reich administration. In 1939, the remnants of autonomous decision making that the German Municipal Statute (Deutsche Gemeinde Ordnung) of January 30, 1935, had preserved for the municipalities were done away with (Matzerath 1970). However, federalism and the decentralization of administration returned in the rivalries of the Gauleiter and in the constant friction between the state and ¨ the party (Huttenberger 1969, Diehl-Thiele 1969). The overall picture is still unclear because a good deal of source material has 222

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been lost, and the material that still exists has been little studied. How local administrative practice developed, where the safeguards of a Rechtsstaat were preserved, and where the party’s will abolished them are questions we can answer only for geographically and functionally circumscribed areas. Administrative law under National Socialism was characterized by (a) the end of the distinction developed by the Rechtsstaat between law, regulation, and individual act; (b) the functional transformation of the norm from a barrier to administrative action to the given goal; (c) the displacement of the notion of legality, now vilified as liberal or positivist, by a material and ideologically charged concept of rightfulness; (d ) the curtailing of judicial review of acts of political leadership and discretionary political decisions; (e) the elimination of personal right in public law and its replacement by the obligation of duty that was open to every kind of intervention and manipulation; ( f ) the use of the notion of the common weal to abolish normative barriers and adapt the older administrative law to the necessities of state. The fate of administrative jurisdiction was closely tied to these dogmatic shifts. The administrative courts remained intact until after the beginning of the war. However, because they were considered reactionary, in the sense of being part of the Rechtsstaat, they were progressively displaced from supervising administrative conduct (Kirchberg 1982). This development began when the political police were exempted from supervision by the administrative courts (§ 7 of the Prussian Gestapo law of February 10, 1936, merely affirmed court decisions after 1933) and culminated when the competence of the courts was decisively curtailed during the war. The establishment of a Reich Administrative Court on April 4, 1941, by a de¨ cree of the Fuhrer made no difference to the eventual irrelevance of administrative jurisdiction (Kohl 1991). While the administration of justice differed a good deal among the various courts, the more important Higher

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Courts (the Oberverwaltungsgericht [Higher Administrative Court] of Prussia, Saxony, and Thuringia and the Verwaltungsgerichtshof [Ad¨ ministrative Court] of Baden, Wurttemberg, and Bavaria) were able to preserve most of the constitutional foundations in the traditional areas of special administrative law (building law, trade and employment law, road law, energy and water law) (Stolleis 1985, pp. 57–80; 1998).

Civil Law In civil law, which largely retained its normative core, the balance shifted primarily through the administration of justice and jurisprudence (as a source of a highly convinced National Socialist, see Lange 1941; see also the retrospective of Wieacker 1967). The general clauses (paragraphs 138, 157, 226, and 826 of the Civil Code), against which the conservative professor Hedemann had warned just in the last months of 1932 (see Hedemann 1933), were now recommended as entry points for National Socialist ideology. Emphasis on communal thinking, the scaling back of rights in favor of duties (Wieacker 1976/1977), the infusion of morality into the law, and its vulgarization all led to the loss of doctrinal rationality and legal certainty, as well as to the formation of new doctrinal forms. From 1937 on, the Nazis talked about dismantling the Civil Code into individual laws and abolishing the general section (Reich Justice Ministry), and after 1939 they discussed the creation of a Volksgesetzbuch (people’s law code), which reached the stage of a draft (see Stolleis 1993, with further references). Marriage law, family law, and hereditary health law underwent a special development that was, once again, driven by the legislator. The National Socialist state established its public interest in the policy of procreation through changes in the law of adoption, in the procedure of contesting legitimacy, in government loans to young married couples, and in child support. It pursued this further through

(a) the Law for the Prevention of Genetically Diseased Offspring of July 14, 1933; (b) the socalled Blood Protection Law of September 15, 1935, that forbid marriage and sexual relations between Jews and non-Jews on the grounds that this constituted “racial pollution,” outlawing the employment of non-Jewish domestic help by Jews, and barring Jews from flying the national colors; and (c) the Marriage Law of July 27, 1938 [Hitler (1938 [1993], p. 275) proclaimed in Mein Kampf that the breeding and conservation of the species and race was the main political goal].

Labor Law Continuing an older, though now massively politicized, trend, labor law also drifted further away from the Civil Code. Following the breakup of the unions, the establishment of the German Labor Front, and the abolition of collective bargaining (replaced by “trustees of labor”), labor law was given a legal framework in the Law on the Organization of National Labor, promulgated on January 20, 1934, and modeled after the Italian Carta del lavoro. This law was flanked by the Law on Homeworking (Heimarbeitsgesetz) in 1934, the Law on State Labor Service (Reich sarbeitsdienstgesetz) in 1935, the Labor Organization (Arbeitsordnung) in 1934 and 1938, and the Law for the Protection of Young People ( Jugendschutzgesetz) in 1938. Orienting employees and employers toward the “common benefit of the people and the state,” interpreting the employer-employee relationship as a “communal relationship” infused with ethical meaning (Schwerdtner 1970, Hientzsch 1970), outlawing strikes, freezing wages, and abolishing the right to freely choose one’s job during the war were all steps that came de facto at the expense of workers and employees. However, a propagandistic appreciation of workers, “Kraft durch Freude” (strength through joy) events, and improved social security benefits compensated somewhat for these losses, at least on the subjective side; together with the overall system of centralized


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guidance, they prevented the outbreak of domestic unrest (Mason 1977). Parallel to strengthening the position of ¨ employers in labor law (the “Fuhrer principle”), the new leadership broadened the powers of management in business law. In the area of stock law, this led to an increase in the authority of the board20 and the state’s right of intervention. In cartel law, as well, the state’s abilities to intervene and direct developments were broadened.21 The cartel court was abolished in 1938, and the cartels gradually turned into self-administering organs of the war economy working closely with ¨ 1994, with further referthe state (see Norr ences). In addition, the state took over the setting of price policy, at first gradually and then decisively with the outbreak of the war. It regulated foreign currency laws and used the foreign currency criminal laws as a variant of political criminal law (as the DDR did later). The other areas of business law and war economy law were also safeguarded through special penal laws.22


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Social Security Law Social law, too, was affected by long-term structural changes and ideological influences (Stolleis 2003). Public welfare on the whole was shunted aside as much as possible, except for areas that could be used for propaganda and that were looked after by the party’s organizations. In 1935, the German Labor Front explained, “Until now, excessive amounts of money from the funds of the social administration and general welfare work have been spent on people who were hopelessly sick and unquestionably inferior.” Accordingly, the Nazis tried to rid themselves of

“useless” social welfare recipients through socalled “euthanasia actions” and deportations to concentration camps. The economic upswing made it possible initially to restore the financial health of social security. By 1939, the number of insurance carriers had been reduced by 2838 to 4841. Various improved benefits were granted,23 the pool of eligible recipients grew,24 and in the area of accident insurance the state switched in 1942 from insuring businesses to insuring persons. However, the picture is complete only if we include the following facts: the destruction of self-government and the introduction ¨ of the Fuhrer principle; the partial dismantling of social benefits; the retention of an increase in contributions during hard times; and the use of social security assets to finance the war.25

Tax Law Tax law is an exemplary case of what I described above as the ambivalent relationship between the seemingly apolitical, technical nature of an area of the law and its regulation through a superimposed general clause (see the comprehensive account in Voss 1995). The first paragraph of the Tax Amending Law of October 16, 1934, prescribed that the norms of tax law be interpreted in accord with National Socialist ideology (which was soon taken as the general principle of legal interpretation). This led to great difficulties for organizations the Nazis disliked ( Jewish clubs of all kinds, hospitals, old age homes, ecclesiastical foundations, religious orders, and other ideologically colored institutions), most often through the denial of tax-exempt status. In

23 20

Aktiengesetz vom 30. Januar 1937, Reichsgesetzblatt 1937 I, 107.

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¨ Gesetz uber den Ausbau der Rentenversicherung vom 21. Dezember 1937, Reichsgesetzblatt 1937 I, 1393.

24

21

¨ Gesetz uber die Errichtung von Zwangskartellen vom 15. Juli 1933, Reichsgesetzblatt 1933 I, 488.

¨ ¨ das Deutsche Gesetz uber die Altersversorgung fur Handwerk vom 21. Dezember 1938, Reichsgesetzblatt 1938 I, 1900.

22 Gesetz gegen Wirtschaftssabotage vom 1. Dezember 1936, Reichsgesetzblatt 1936 I, 999. See also Werner (1991).

25 ¨ ¨ Verordnung uber die Anlegung des Vermogens der Träger der Reichsversicherung vom 14. April 1938, Reichsgesetzblatt 1938 I, 398.

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addition, tax evasion was stylized into “treason against the national community.” The decisions handed down by the Reich Fiscal Court (Reichsfinanzhof ) played an important part in tightening the criteria of what constituted a tax offense and in actively interfering with Jewish clubs and the churches, in particular. This runs counter to a widely disseminated legend that the administration of tax law was purely professional.

Criminal Law From the outset, the National Socialists recognized the eminently political function of criminal law and acted accordingly. They used criminal law to intimidate opponents and suppress groups, to create fear even among their own supporters, and to create an attachment to the national community by criminalizing some visible victims (the so-called “November criminals,” communists, Jews). Moreover, the Nazis had promised peace and order and “a ruthless battle against those who, by their activities, injure the general good” (point 18 of the party program). A reform program for criminal law did not exist in 1933, but there was a basic antiliberal and anti-individualistic attitude, which was shared in part by the legal literature on criminal law (Marxen 1975, Werle 1989; see also Telp 1999, Hartl 2000, Vogel 2004). Beginning with the police raids in the wake of the Reichstag Fire Decree of February 28, 1933, the Nazis erected on these foundations a system of penal control and oppression in which traditional criminal and trial law, gradually reshaped, played an important but not exclusive role. It was flanked by an expansive special criminal law,26 by po-

lice law, and by the special powers granted to the party and the SS. A “special law” was in force in the conquered territories of the East, the sole purpose of which was the suppression of any hint of opposition (see the classical study from Broszat 1961). To a large extent the Nazis did without a legal basis for their actions. The jurisdiction of regular and military courts over penal offenses committed by the civilian population was curtailed. Police courts-martial, SS courts, and executive acts without a legal foundation and based on “the necessities of state prevailing in the incorporated eastern territories” took the place of traditional justice (Wagner 1968). Overall, criminal law and punishment “not only surrounded the dictatorial system with a protective wall by consistently pursuing the racial idea and the related destruction of supposedly inferior person, . . . it also caused incredible bloodshed” (Peters 1965). Even if the Nazis implemented some points of the reform discussion that had taken place during the Weimar Republic,27 the primary trend was a movement away from the direction of reform initiated by Franz von Liszt and the elimination of the trial guarantees developed after the Enlightenment. After 1933, several developments dominated the practice of criminal law and the writing about it. A crime was no longer seen as the violation of a legally protected interest but as a breach of duty, while punishment was meted out not to an offense but to a perpetrator’s willingness to commit it. The strict typology of offenses was loosened through the introduction of new concepts that still needed to be fleshed out. The prohibition against the use of analogy was abolished, alternative punishment was permitted,28 and

26

¨ Gesetz uber Verhängung und Vollzug der Todesstrafe (“Lex van der Lubbe”) vom 29. März 1933, Reichsgeset¨ zblatt 1933 I, 151; Gesetz gegen heimtuckische Angriffe auf Staat und Partei . . . vom 20. Dezember 1934, Reichsgesetzblatt 1934 I, 1269; Kriegssonderstrafrechtsverordnung vom 17. August 1938, Reichsgesetzblatt 1938 I, 1455; Verordnung gegen Volksschädlinge vom 5. September 1939, Reichsgesetzblatt 1939 I, 1679.

27 For example, in 1933 they introduced the “Maßregeln der Sicherung und Besserung,” and in 1943 they differentiated punishment for adults and young offenders and differentiated guilt in cases of murder and manslaughter and several involved persons (see Werle 1988, pp. 2865–67). 28 ¨ Gesetz zur Anderung des Strafgesetzbuchs vom 28. Juni

1935, Reichsgesetzblatt 1935 I, 839.


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retroactive force was introduced.29 The range and severity of punishment were expanded, and the idea of deterrence and protection of the nation took precedence over rehabilitation. The procedural position of the prosecutor was strengthened, and the rights of defending lawyers were curtailed. The appeal process was shortened. Special courts were introduced, especially the so-called People’s Court (Volksgerichtshof ) (Wagner 1974). The powers of the police and the Gestapo were broadened. Finally, the principle of legality was formally abrogated.30 The Nazis implemented these changes in part by passing specific laws and in part by guiding the interpretation of existing law. Attempts to reform and codify substantive criminal law and trial law went no further than the draft stage primarily, it seems, because the leadership wanted to avoid committing itself in any way. A topic unto itself is the controversial administration of justice by the Wehrmacht. Although no definitive verdict is possible at this time, the picture we get is at odds with the one painted by former military judges (Schweling & Schwinge 1977; against this highly apologetical work, see Messerschmidt 2005).


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Legal Doctrine, Legal History A survey of developments in the various areas of National Socialist law makes plain why there can be no real “legal doctrine” (legal philosophy, legal theory) of National Socialism. What prevailed from the whole range of legal philosophy before 1933 was chiefly conservative Hegelianism ( J. Binder, K. Larenz, E.R. Huber) and other variants of a neo-idealism

29 Gesetz gegen erpresserischen Kindesraub (kidnapping) vom 22. Juni 1936, Reichsgesetzblatt 1936 I, 493; Gesetz gegen Straßenraub mittels Autofallen vom 22. Juni 1938, Reichsgesetzblatt 1938 I, 651; Verordnung gegen Gewaltverbrecher vom 5. Dezember 1939, Reichsgesetzblatt 1939 I, 2378. 30 Verordnung zur weiteren Anpassung der Strafrechtspflege an die Erfordernisse des totalen Krieges vom 13. Dezember 1944, Reichsgesetzblatt 1944 I, 339.

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that also picked up the threads of Johann Fichte and Friedrich Schelling. Although “concrete thinking about order and organization” (C. Schmitt), the “jurisprudence of racial laws” (H. Nicolai), and “ethnic-national natural law” (H.H. Dietze) did not progress beyond vague sketches, by elevating brutal reality philosophically they rendered no small ¨ service to the system of power (Anderbrugge 1978, Rottleuthner 1983). Just as there was no separate National Socialist historiography (see the pathbreaking Werner 1967, Heiber 1966, Graus 1969, Iggers 1971), a genuine National Socialist legal history was not able to develop either ¨ (Simon & Stolleis 1988, Ruckert & Willoweit 1997). To be sure, a few legal historians professed their decided loyalty to National Socialism. However, it is more important to note the existence of a broad and very widespread affinity between the basic idealistic foundation of legal scholarship and the best face that National Socialist rule presented. The search for the working of ideas in historical material, the attribution of specific ideas to specific peoples (such as community, honor, and true freedom to the Germans, self-interest and false freedom to the English, the Jews, and so on), notions about the decay and revival of such ideas, and the quest for the “eternal German spirit” that manifested itself in diverse forms all were easy to integrate into the pattern of National Socialist propaganda. Basic ideas of National Socialism and idealism above all set the Germanic branch of legal history on a voluntary or involuntary parallel track with Nazi ideology. After 1945, these interconnections were largely suppressed or denied. The branch of legal history that dealt with Roman law—because of its material, its international connections, and the fact that eminent scholars of the field were forced into emigration— proved much less susceptible to the influence of Nazi ideology (Simon 1988, note 90). Point 19 of the NSDAP party program—“We demand that Roman law, which serves a materialist world order, be replaced by German common law”—remained relatively insignificant

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(Landau 1989, note 90). At best it reinforced the crisis that Paul Koschaker had diagnosed in that field of study (Koschaker 1938; 1947, chapter XVII).


CONCLUSION If we return, following this cursory overview, to the history of scholarship, we note that the basic methodological problems were not really solved, and in all likelihood could not be solved. The stirring postwar questions, “How could it happen?” and “How can we prevent something similar from happening again?” continued to be unsettling because “jurists as such” were—and are—unable to answer them. Once the recommendations of natural law of the postwar period had lost their persuasive force and the modern theory of science had conveyed a basic awareness of methodology, the only thing left was recourse to a value-bound private morality, civic virtues, and democratic consciousness, and an appeal to the legal profession’s sense of ¨ political responsibility (Ruthers 1988). Ingo ¨ Muller’s popularly written book Furchtbare

Juristen [Terrible Jurists, a title borrowed from playwright Rolf Hochhuth (the U.S. edition was published under the title Hitler’s Justice)] was published in 1987 and became a bestseller ¨ (Muller 1991). The simultaneous and unexpected eruption of the so-called Historikerstreit (historians’ quarrel) revealed how much the scholarly landscape had changed (the most important texts in the volume Historikerstreit; see also Wehler 1988). This controversy revolved less around questions of fact than around issues of interpretation and evaluation. The most contentious issue was whether the historicization of the events of the Nazi era— which is no doubt an inevitable process— also entails strategies to relativize them and make them less burdensome. The Historikerstreit was essentially a moralistic-semantic debate. At the same time, however, it was also a struggle against the reappearance of nationalistic and apologetic positions. Twenty years later we can see that National Socialism and its crimes are a never-fading past. The moral and intellectual restlessness caused by the Shoah are an important legacy for the next generation of historians.


LITERATURE CITED ¨ Anderbrugge K. 1978. Völkisches Rechtsdenken. Zur Rechtslehre in der Zeit des Nationalsozialismus. Berlin: Duncker & Humblot ¨ Bader KS. 1947. Die deutschen Juristen. Tubingen: Mohr Bähr J, Banken R, eds. 2006. Wirtschaftssteuerung durch Recht im Nationalsozialismus. Frankfurt am Main: Klostermann Bender G, Kiesow RM, Simon D, eds. 2006. Die andere Seite des Wirtschaftsrechts. Steuerung in den Diktaturen des 20. Jahrhunderts. Frankfurt am Main: Klostermann Boberach H, ed. 1975. Richterbriefe: Dokumente zur Beeinflussung der deutschen Rechtsprechung 1942–1944. Boppard: Boldt ¨ Bohm H. 1995. Von der Selbstverwaltung zum Fuhrerprinzip. ¨ Die Universität Munchen ¨ in den ersten Jahren des Dritten Reiches (1933–1936). Berlin: Duncker & Humblot Braunbuch. 1968. Kriegs- und Naziverbrecher in der Bundesrepublik und in Westberlin. Berlin (Ost): Staatsverlag DDR. 3rd ed. www.annualreviews.org • Law and Lawyers Preparing the Holocaust

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Broszat M. 1961. Nationalsozialistische Polenpolitik. Stuttgart: Deutsche Verlagsanstalt ¨ DTV. 15th ed. Broszat M. 1969 (2000). Der Staat Hitlers. Munchen: Coing H. 1947. Die Obersten Grundsätze des Rechts. Ein Versuch zur Neubegrundung ¨ des Naturrechts. Heidelberg: Schneider ¨ Beck Diehl-Thiele P. 1969. Partei und Staat im Dritten Reich. Munchen: Diestelkamp B, Stolleis M, eds. 1988. Alltag der Justiz im Dritten Reich. Frankfurt am Main: Fischer Douma E. 1998. Anwälte zwischen Demokratie und Diktatur. Frankfurt am Main: Fischer Eckart WU, Sellin V, Wolgast E, eds. 2006. Die Universität Heidelberg im Nationalsozialismus. Heidelberg: Springer-Verlag Etzel M. 1992. Die Aufhebung von nationalsozialistischen Gesetzen durch den Alliierten Kontrollrat ¨ (1945–1948). Tubingen: Mohr Siebeck ¨ Baden-Baden: Nomos Fraenkel E. 1999. Gesammelte Schriften, Vol. 2, ed. A von Brunneck. Verlag Franssen E. 1969. Positivismus als juristische Strategie. Juristenzeitung 24:766–75 Friedlaender S. 1998. Das Dritte Reich und die Juden. Die Jahre der Verfolgung 1933–1939. ¨ Munchen: Beck Friedlaender S. 2006. Das Dritte Reich und die Juden. Die Jahre der Vernichtung 1939–1945. ¨ Munchen: Beck Graubuch. 1967. Expansionspolitik und Neonazismus in Westdeutschland. Berlin (Ost): Staatsverlag DDR. 2nd ed. Graus F. 1969. Geschichtsschreibung und Nationalsozialismus. Vierteljahreshefte fur ¨ Zeitgeschichte 17:87–95 Gruchmann L. 1987. Justiz im Dritten Reich, 1933–1940: Anpassung und Unterwerfung in der ¨ Gurtner. ¨ Ara ¨ Munchen: Oldenbourg Hartl B. 2000. Das Nationalsozialistische Willensstrafrecht. Berlin: Weißensee-Verlag ¨ Hedemann JW. 1933. Die Flucht in die Generalklauseln. Tubingen: Mohr Heiber H. 1966. Walter Frank und sein Reichsinstitut fur ¨ Geschichte des neuen Deutschlands. Stuttgart: Deutsche Verlagsanstalt Henne T, Riedlinger A, eds. 2005. Das Luth-Urteil ¨ aus (rechts-) historischer Sicht. Berlin: Weißensee-Verlag Hientzsch U. 1970. Arbeitsrechtslehren im Dritten Reich und ihre historische Vorbereitung. Dissertation. Univ. Marburg, Germany ¨ Hitler A. 1938 (1993). Mein Kampf. Munchen: Verlag Franz Eher Nachfolger Hollerbach A. 1991. Juristische Lehre und Forschung in Freiburg in der Zeit des Nationalsozialismus. In Die Freiburger Universität in der Zeit des Nationalsozialismus, ed. E John, et al., pp. 91–113. Freiburg: Ploetz Huber ER. 1939. Verfassungsrecht des Großdeutschen Reiches. Hamburg: Hanseatische Verlagsanstalt. 55 pp. ¨ Huttenberger P. 1969. Die Gauleiter. Studie zum Wandel des Machtgefuges ¨ in der NSDAP. Stuttgart: Deutsche Verlagsanstalt ¨ Huttenberger P. 1976. Nationalsozialistische Polykratie. Gesch. Ges. 2:417–42 Iggers GG. 1971. The German Conception of History: The National Tradition of Historical Thought from Herder to the Present. Middletown, CT: Wesleyan Univ. Press Jäger H. 1967 (1982). Verbrechen unter totalitärer Herrschaft. Studien zur nationalsozialistischen Gewaltkriminalität. Freiburg: Walter-Verlag Olten Kahn D. 2006. Die Steuerung der Wirtschaft durch Recht im nationalsozialistischen Deutschland. Frankfurt am Main: Klostermann


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Kiesewetter H. 1974 (1995). Von Hegel zu Hitler. Frankfurt am Main: Lang. 2nd ed. Kirchberg C. 1982. Der Badische Verwaltungsgerichtshof im Dritten Reich. Berlin: Duncker & Humblot ¨ Kogon E. 1946 (1974). Der SS-Staat. Das System der deutschen Konzentrationslager. Munchen: Alber Verlag ¨ Kohl W. 1991. Das Reichsverwaltungsgericht. Tubingen: Mohr Siebeck Koschaker P. 1938. Die Krise des römischen Rechts und die romanistische Rechtswissenschaft. ¨ Munchen: Beck ¨ Koschaker P. 1947. Europa und das römische Recht. Munchen: Biederstein Verlag Krach T. 1991. Judische ¨ Rechtsanwälte in Preußen. Bedeutung und Zerstörung der freien Advokatur. ¨ Munchen: Beck ¨ Kubler FK. 1963. Der deutsche Richter und das demokratische Gesetz. Arch. Civ. Prax. 162:104–28 ¨ Landau P. 1989. Romisches Recht und deutsches Gemeinrecht. Zur rechtspolitischen Zielsetzung im nationalsozialistischen Parteiprogramm. See Simon & Stolleis 1988, pp. 11–24 ¨ Lange H. 1941. Die Entwicklung der Wissenschaft vom burgerlichen ¨ Recht seit 1933. Tubingen: Mohr Siebeck ¨ Mohr Siebeck Loesch AM. 1999. Der nackte Geist. Tubingen: ¨ Majer D. 1981. Fremdvolkische. Dritten Reich. Boppard: Boldt Marxen K. 1975. Der Kampf gegen das liberale Strafrecht. Eine Studie zum Antiliberalismus in der Strafrechtswissenschaft der 20er und 30er Jahre. Berlin: Duncker & Humblot Mason TW. 1977. Sozialpolitik im Dritten Reich: Arbeiterklasse und Volksgemeinschaft. Opladen: Westdeutscher Verlag ¨ Matthias E, Morsey R, eds. 1960. Das Ende der Parteien 1933. Dusseldorf: Droste Verlag Matzerath H. 1970. Nationalsozialismus und kommunale Selbstverwaltung. Stuttgart: Deutsche Verlagsanstalt ¨ Messerschmidt M. 2005. Die Wehrmachtjustiz 1933–1945. Paderborn: Schoningh Mommsen H. 1966. Beamtentum im Dritten Reich. Stuttgart: Deutsche Verlagsanstalt ¨ Muller I. 1991. Hitler’s Justice. The Courts of the Third Reich. Cambridge, MA: Harvard Univ. Press ¨ KW. 1994. Leiden des Privatrechts. Tubingen: ¨ Norr Mohr Siebeck Oppitz U-D. 1979. Strafverfahren und Strafvollstreckung bei NS-Gewaltverbrechen. Dargestellt an Hand von 319 rechtskräftigen Urteilen deutscher Gerichte aus der Zeit von 1946–1965. Ulm Peters K. 1965. Die Umgestaltung des Strafgesetzes in den Jahren 1933–1945. In Deutsches ¨ Geistesleben und Nationalsozialismus, ed. A Flitner. Tubingen: Wunderlich Pichinot H-R. 1981. Die Akademie fur ¨ Deutsches Recht. Dissertation. Kiel Ridder H. 1958. Vom Grund des Grundgesetzes. Juristenzeitung 13:323 Rottleuthner H, ed. 1983. Recht, Rechtsphilosophie und Nationalsozialismus, Beiheft zum Archiv fur ¨ Rechts und Sozialphilosophie 18. Wiesbaden: Franz Steiner Verlag ¨ ¨ Ruckert J, Willoweit D, eds. 1997. Die Deutsche Rechtsgeschichte in der NS-Zeit. Tubingen: Mohr Siebeck ¨ ¨ Ruthers B. 1988. Entartetes Recht: Rechtslehren und Kronjuristen im Dritten Reich. Munchen: Beck ¨ ¨ Ruthers B. 1968 (1997). Die unbegrenzte Auslegung. Heidelberg: Muller. 5th ed. Schäfer H. 1999. Juristische Lehre und Forschung an der Reichsuniversität Straßburg 1941–1944. ¨ Tubingen: Mohr Siebeck Schelauske H-D. 1968. Naturrechtsdiskussion in Deutschland. Ein Ueberblick uber ¨ zwei Jahrzehte: ¨ Bachem 1945–1965. Koln: Schmidt E. 1947. Justitia Fundamentum Regnorum. Funf ¨ Vorträge uber ¨ Macht und Recht, Staat und Justiz. Heidelberg: Winter www.annualreviews.org • Law and Lawyers Preparing the Holocaust

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¨ die Rechtspraxis. Jurist. Wochenschr. 62:2793–94 Schmitt C. 1933. Neue Leitsätze fur ¨ Schmoeckel M. 2004. Die Juristen der Universität Bonn im “Dritten Reich.” Koln/Weimar/Wien: ¨ Bohlau ¨ Schroder R. 1988. “ . . . aber im Zivilrecht sind die Richter standhaft geblieben!” Die Urteile des OLG Celle aus dem Dritten Reich. Baden-Baden: Nomos Verlag Schweling OP, Schwinge E. 1977. Die deutsche Militärjustiz in der Zeit des Nationalsozialismus. Marburg: Elwert Schwerdtner P. 1970. Fursorgetheorie ¨ und Entgelttheorie im Recht der Arbeitsbedingungen. Heidelberg: Verl. Recht u. Wirtschaft Simon D. 1975. Die Unabhängigkeit des Richters. Darmstadt: Wissenschaftlich Buchgesellschaft ¨ Simon D. 1988. Die deutsche Wissenschaft vom romischen Recht nach 1933. See Simon & Stolleis 1988, pp. 161–76 ¨ Mohr Siebeck Simon D, Stolleis M, eds. 1988. Rechtsgeschichte im Nationalsozialismus. Tubingen: Stolleis M. 1974. Gemeinwohlformeln im nationalsozialistischen Recht. Berlin: J. Schweitzer Stolleis M. 1985. Die Verwaltungsgerichtsbarkeit im Nationalsozialismus. In Festschrift fur ¨ ¨ Heymanns Christian Friedrich Menger, pp. 57–80. Koln: Stolleis M. 1993. Volksgesetzbuch. In Handwörterbuch zur Deutschen Rechtsgeschichte, ed. A Erler, E Kaufmann, V:990–92. Berlin: E. Schmidt Stolleis M. 1998. Law Under the Swastika. Chicago: Chicago Univ. Press Stolleis M. 2003. Geschichte des Sozialrechts in Deutschland. Stuttgart: Lucius & Lucius Stolleis M. 2004. A History of Public Law in Germany, 1914–1945. Transl. T Dunlap. New York: Oxford Univ. Press Sunnus M. 1990. Der NS-Rechtswahrerbund (1928–1945). Frankfurt am Main: Lang Telp J. 1999. Ausmerzung und Verrat. Zur Diskussion um Strafzwecke und Verbrechensbegriffe im Dritten Reich. Berlin: Lang Tschernilowski SM. 1980. Allgemeine Staats- und Rechtsgeschichte. Von der Entstehung des Staates bis zum Kapitalismus. Berlin: Staatsverl. der DDR Vogel J. 2004. Einflusse ¨ des Nationalsozialismus auf das Strafrecht. Berlin: Weißensee-Verlag von Hippel F. 1946. Die nationalsozialistische Herrschaftsordnung als Warnung und Lehre. ¨ Tubingen: Mohr von Kruedener J. 1974. Zielkonflikte in der nationalsozialistischen Agrarpolitik. Z. Wirtsch. Soz. 94:335–61 Voss R. 1995. Steuern im Dritten Reich: Vom Recht zum Unrecht unter der Herrschaft des Nation¨ alsozialismus. Munchen: Beck Wagner A. 1968. Die Umgestaltung der Gerichtsverfassung und des Verfahrens- und Richterrechts im nationalsozialistischen Staat. Stuttgart: Deutsche Verlagsanstalt Wagner W. 1974. Der Volksgerichtshof im nationalsozialistischen Staat. Stuttgart: Deutsche Verlagsanstalt Wehler H-U. 1988. Entsorgung der deutschen Vergangenheit? Ein polemischer Essay zum “Historik¨ erstreit.” Munchen: Beck Werle G. 1988. Zur Reform des Strafrechts in der NS-Zeit: Der Entwurf eines Deutschen Strafgesetzbuchs 1936. Neue Jurist. Wochenschr. 1988:2865–67 Werle G. 1989. Justiz-Strafrecht und polizeiliche Verbrechensbekämpfung im Dritten Reich. Berlin/New York: de Gruyter Werner KF. 1967. Das nationalsozialistische Geschichtsbild und die deutsche Geschichtswissenschaft. Stuttgart: Deutsche Verlagsanstalt Werner S. 1991. Wirtschaftsordnung und Wirtschaftsstrafrecht im Nationalsozialismus. Frankfurt: Lang


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¨ Wieacker F. 1967. Privatrechtsgeschichte der Neuzeit. Gottingen: Vandenhoek & Ruprecht. 2nd ed. Wieacker F. 1976/1977. “Wandlungen der Eigentumsverfassung” revisited. Quad. Fiorent. 5– 6:703–21 Wippermann W. 1997. Totalitarismustheorien. Darmstadt: Primus Verlag Wrobel H. 1991–1994. Strafjustiz im totalen Krieg. Aus den Akten des Sondergerichts Bremen 1940–1945. 3 Vols. Bremen: Verlags Buchhandelsgesellschaft


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The Death of Socialist Law? Annu. Rev. Law. Soc. Sci. 2007.3:233-253. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/12/07. For personal use only.

Inga Markovits University of Texas School of Law, Austin, Texas 78705; email: [email protected]


Key Words


parental law, social rights, material guarantees, dual state, constitutional courts


Abstract Before the collapse of socialism, Western comparative lawyers more or less agreed that socialist law was different from the law of capitalist legal systems. But was it different enough no longer to have a place in the new democracies of Eastern Europe? This review looks at the socialist features of pre-1989 East European law and suggests that Marxist law never existed in the first place; that the Stalinist aspects of socialist law, while not extinct, were not confined to the law of Eastern Europe and thus not necessarily socialist; and that the parental qualities of law in the former Soviet Bloc correspond well not only with the needs of unsettled and impoverished populations in Eastern Europe, but with the modern welfare state in general.

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There is a question mark in the title of this review. It was provided by the editors of this volume and stands for more problems than I am able to address. Are we quite sure that socialism itself is dead? What about possibly surviving relatives in Latin America or Asia? And even if those systems are so far removed from the traditional model of socialism as no longer to fit the term, does it make sense to speak of socialist law as if it existed only in a single strand? To make my topic manageable, socialist law in this review refers to the law of the countries of the former Soviet Bloc that, since its collapse, have, with varying success, moved toward the creation of a rule of law. Even with this geographical limitation, however, the term cannot be used in a single meaning. To decide whether socialist law has died, we have to determine the identity of the deceased we have in mind.


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DID MARXISM EVER BELIEVE IN LAW? One possible candidate for burial might be socialist law as envisaged by the Marxist classics. But to them, socialist law never was alive. Marx and his ideological successors saw socialism and law as contradictions in terms. The human freedom Marx was searching for could not be achieved by so formal, rigid, and calculating a medium as law. All law was necessarily class law, cementing the power of the ruling class and repressing all others. Human rights were “nothing but the rights . . . of egotistic man . . . , who is separated from other men and from the community” (Marx 1994, p. 44). Legal rules, measuring individual entitlements “in terms of a common standard” (Marx 1996, p. 214), could not do justice to the factual differences between people and so, by definition, could not recognize their individual humanity. “To avoid these faults, rights would have to be unequal instead of equal” (Marx 1996, p. 214). Marxism therefore hoped for a society in which goods would be distributed not in exchange for their equivalent value measured in 234

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terms of money, labor, or deserts but, as in a family, in response to each recipient’s individual needs. As in a family, interactions would be governed not by formal rules, designed and applied by professionals, but by informal, ad hoc, fact-specific decisions among comrades. Under communism, law would die out, together with its source, the repressive state. Evgenii Pashukanis, the most brilliant legal theorist of socialism, explained law as the alter ego of the bourgeois market: a mechanism that was needed to coordinate, if only for the fleeting moment of the deal, the interests of unconnected and self-serving capitalists (Pashukanis 1951). To Pashukanis and his contemporaries, with the establishment of socialism, the market (and thus law) in the Soviet Union would be driven out by the Economic Plan, formal rules would be replaced with technical specifications, the due process needed to resolve the conflicts of opponents would be superseded by the “unity of purpose” (Pashukanis 1951, p. 137) of comrades bent over a common task. “Such are the perspectives of the boundless future” (Pashukanis 1951, p. 179). Initially, the Russian revolutionists expected that boundless future to be more or less around the corner. Marx had predicted that, with the abolition of private property and its inherent irrationalities and conflicts, “the springs of cooperative wealth would flow more abundantly” and that society would soon produce enough to give “to each according to his needs” and so be able to “transcend the limited horizon of bourgeois law” (Marx 1996, p. 215). The Bolsheviks did what they could to hasten the process. Within a month of seizing power, they replaced tsarist courts with informal, lay tribunals deciding conflicts based on the judges’ “revolutionary conscience” (Hazard 1960). The Second Decree on Courts of November 1918 forbade all reference to tsarist law. New revolutionary legislation hacked away at the cornerstones of bourgeois law: private property in land and the means of production, inheritance, religious marriage. Commodity exchange was


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increasingly replaced by direct distribution. “We are approaching the complete abolition of money,” the chairman of the Comintern, Grigory Zinoviev, said in 1920 (Berman 1948, p. 155). The euphoria did not last long. When economic failure, civil war, and famine plunged the country into chaos, Lenin called a halt to its rapid transformation and, with the New Economic Policy (NEP) of 1922, invited private property and entrepreneurship back in to help restore social order and prosperity. A mass of new legislation was enacted in record time: a civil code, a land code, a criminal code, codes of civil and criminal procedure. But the NEP was a strategic, not a philosophical retreat. Indeed, the speed of legislation betrayed the socialist contempt for law. The new codes were blithely copied from Western law, with a few socialist safety rules thrown in to ensure that the new/old law would not be used to undermine the goals of socialism. Plans for the deconstruction of bourgeois legality continued, such as the speculations over a new Soviet criminal code that, instead of a marketstyle price list of the penalties for each offense, would contain only a few examples of the types of crimes against which the judge, guided by proletarian insight, should defend society (Sharlet 1984). Law was still seen as an essentially bourgeois phenomenon. With the first Five-Year Plan of 1928 and its push toward total planning, the hopes for the imminent withering of law and state revived. The NEP codes largely fell into disuse and were not replaced (Sharlet 1984). The second Five-Year Plan of 1933 was to achieve the establishment of socialism and with it a classless society that (without class conflict, private property, or a market) would have no further need of law. One can see why the legal speculations of Pashukanis and his followers could be of no use to a dictator bent on the industrial and social transformation of the Soviet Union. Already in 1920, Lenin had defined communism as “Soviet power plus electrification.” Stalin pushed this definition to its limits. He wanted to create a world of total human and tech-

nical control in which “nature was no longer the condition but the product of collective action” (Sabrow 2005, p. 113), and he needed powerful tools to pursue his goal. Moreover, a new world war was on the horizon. The mixture of nihilism and apocalypticism (Berman 1948, p. 155) that defined the early 1930s had delegitimized government authority, corroded social institutions, and undermined the strength and resolution of the state both to transform and, if necessary, to defend itself. Stalin needed a strong state and effective laws. 1936, the year of the new Stalinist constitution, was the turning point. It marked the official rehabilitation of the state and law in socialist ideology. “We need stability of laws now more than ever,” Stalin said, reporting on the draft (Berman 1950, p. 53). Legal nihilism became treachery. Pashukanis was denounced as an enemy of the people, demoted in 1937, and executed in 1938 (Sharlet & Beirne 1984). His place as the leading theorist of socialist law was taken by his ideological competitor and enemy Andreii Vyshinsky, procurator general since 1934, who stayed in the good graces of the system for two more decades and, in the end (as chief delegate of the Soviet Union to the United Nations), was allowed to die a natural death. The ideological justification for the resurrection of state and law was Stalin’s new doctrine of “socialism in one country.” Now that socialism had been established, this doctrine taught, class war had been abolished in the Soviet Union; workers and peasants cooperated as friendly classes; their law was neither bourgeois nor repressive, but a new form of law “raised to the highest level of development” (Berman 1950, p. 54). Just a few weeks after Pashukanis’s disappearance, economic law (which had been taught as a flexible alternative to law in the early 1930s) was dropped from the university curriculum and replaced by conventional classes in civil law (Sharlet & Beirne 1984). The NEP codes were revived as useful guidelines for judicial decision making. In the years that followed, Soviet law largely restored the institutions that had once been condemned as www.annualreviews.org • The Death of Socialist Law?

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bourgeois: property, contracts, torts, formal court procedures. Utopia had been replaced by legal orthodoxy. Not socialist law, but the hopes for a lawless world, had died.

STALINIST LAW


We usually do not think of Stalin as a savior of legality. The beginning of his uncontested rule coincided with the Great Purge and the bloodthirsty paranoia of those years: their phobia of conspiracies, their panicky campaigns of vigilance, their epidemic denunciations, their show trials in which loyal and lifelong comrades signed absurd confessions of political betrayal, their murderous annihilation of all imagined enemies of the state (Solomon 1987). It is difficult to reconcile Vyshinsky the procurator during the Great Terror with Vyshinsky the legal academic who only one year later proclaimed the independence of Soviet courts (Vyshinsky 1948, p. 514). But Stalin wanted law to stabilize and discipline the country. That required the protection of cooperative citizens. In Vyshinsky’s words, “The reduction of law to politics would signify the ignoring of those tasks standing before law such as the tasks of legal protection of personal, property, family, testamentary and other rights and interests” (Berman 1963, p. 55). Hence, the essentially conservative constitution of 1936 and the restoration of many bourgeois legal institutions that followed in its wake. Students of Russian history disagree about the assessment of Stalinism as a historical phenomenon. Orthodox historians define Stalinism by its ruthless use of terror that in their view gave “the historical period as a whole an especially peculiar, exotic, bizarre and menacing quality” (Andrle 1992, p. 32). Revisionist, especially social, historians do not deny the horror of the purges (how could one?) but draw attention to the fact that ordinary life went on side by side with bloodshed and that it preserved features of humdrum, daily normalcy despite the totalitarian character of Soviet rule (Fitzpatrick 1999). That 236

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description applies even to the years of the Great Terror, when feverish campaigns of political vigilance spread from the inner circles of the Party to ordinary grassroots government [nearly half of all procurators and judges in the USSR, for instance, in these years lost their jobs or were imprisoned (Solomon 1987, p. 400)] and when a person’s slightest misstep could result in charges of sabotage or wrecking. Still, 1938 was also the year of the new Judiciary Act that introduced greater formality in court proceedings. “Judicial activity requires the deepest trust in the court,” Vyshinsky said that year. “The judge must fight for that trust” (Berman 1948, p. 160). If the realms of law and terror seemed largely to overlap in the worst purge years, they moved increasingly apart in the later years of Stalin’s rule. Like elsewhere in the world, law helped to coordinate the social interactions of everyday life. There was less property to own for ordinary citizens, but what they owned they still could use and dispose of. Contracts were still made up of offer and acceptance. Even the state-owned economy used contracts to arrange the flow of goods among producers and consumers. Inheritance rights were less burdened by taxation than they are in many Western countries. Most court decisions would not have seemed outrageous to a Western observer (Feifer 1964). “How can law and force exist side by side?” Harold Berman asked and answered: “It was the Soviet thesis that they can” (Berman 1963, p. 57). At least as far as law is concerned, the revisionist interpreters of Stalinism have the more convincing evidence. Their claim that law and order can survive even under the most criminal of governments applied not only to Stalin’s Soviet Union. Ernst Fraenkel (1941) has described another totalitarian “Dual State”—Hitler’s Germany—in which law and terror (or, in Fraenkel’s terms, the “normative” and the “prerogative” state), like ying and yang complemented each other. Throughout both Hitler’s Reich and Stalin’s Soviet Union, the line dividing law and terror wavered to accommodate the Communist or


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the Nazi Party’s changing needs or fears. But wherever the line was drawn, the area assigned to law, even under totalitarian rule, even under Stalin, was marked by increasing orderliness, regularity, and, if not respect, at least tolerance of individual interests. What follows from the duality of law and terror for our initial question about the survival of socialist law? One could argue that the separation between law and terror, even if we accept it, was never watertight; that even the socialist law (as opposed to the socialist terror) that had outlived the horror of the Stalin years was marked by the shadow of the purges and thus contaminated; that that contamination never cleared; and that, whatever was left of law after the fall of the Soviet Union, therefore would have to expire with it. It is true that Soviet law, until its last days, still seemed to carry the eggshells of the system from which it hatched. Some particularly egregious theories born during the Great Terror—for instance, Vyshinsky’s claim that in political trials the accused’s confession provided the preferred and most reliable evidence (Solomon 1996, p. 362)—were jettisoned after the purge years. Some legal policies such as the use of analogy in criminal proceedings (advocated pre-Stalin by the legal nihilists) were repudiated during Stalin’s lifetime (Solomon 1996, p. 407). But many rules born in the Stalin years that we would associate with the totalitarian state survived long after Stalin’s death and far beyond the borders of the Soviet Union. The procedural separation of political and ordinary crimes, for instance, initiated under Stalin, was practiced throughout Eastern Europe and meant that political offenders were investigated not by the ordinary police but by the secret police, were tried by special court panels, and were defended by attorneys specially vetted and certified to participate in political trials. The Soviet criminalization of work evasion that had been initiated in the Red Army during the Civil War and that was driven to extremes by Stalinist legislation in 1938 and 1940 (severely punishing tardiness, truancy, and the unauthorized change

of jobs) (Solomon 1996, p. 302) also survived the death of the dictator. It was revived by Khrushchev’s antiparasitism campaign of 1961 and until the very end of socialism lived on in East European criminal provisions sanctioning an antisocial or parasitic way of life. The obsessive secrecy of socialist law survived, with much legislation published “for internal use only” (Loeber 1970) and distributed on a need-to-know basis (if at all), with sensitive trials conducted behind closed doors and with meager court statistics and few reliable figures on crime rates (Markovits 2006, p. 229). Stalin’s “equation ‘doubt = treason’” (Lewin 1984, p. 69) lingered on even as East European faith in socialism began to fade and disappear. These are the features that have shaped our Western view of socialist law. For us, the term evokes the legal system of an evil empire: state-serving and contemptuous of individual rights, ignorant of due process, ranking collective over personal interest, subservient to the Party, and administered by a distrusted and pliable judiciary. No wonder one might wish for such a system’s death. Too many nasty associations come to mind [Darkness at Noon (Koestler 1941); Securitate, KGB, and Stasi; “telephone law”] and not just for Westerners. Memories of this kind of law informed the writing of postsocialist codes and their attempts to create a rule of law. Kim Scheppele has called the new constitutions of Eastern Europe “not-like-that” constitutions: intended to do away, once and for all, with legal structures that allowed the state to use the law to repress and manipulate its citizens. But as we saw, the law “like that” was, in a way, two laws: the law of political repression and that of ordinary daily life. Although even the ordinary daily law of a society insistent on collective unity might strike us as repressive, it is not necessarily Stalinist. Stalinist law, on the other hand, is not necessarily socialist. Ernst Fraenkel’s Dual State, after all, was modeled after the Third Reich. We get a better grip on the question of whether socialist law has really died if we distinguish between its two components of www.annualreviews.org • The Death of Socialist Law?

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law and terror. The distinction is not always clear-cut and obvious. The East European criminalization of parasitism, for example, that under Stalin amounted to a calculated use of criminal law to increase labor productivity in times of war and national crisis, could also be interpreted as an attempt to reintegrate socially weak and drifting outsiders into the mainstream of society. The same piece of legislation might be applied ruthlessly to repress outsiders and political dissenters (as in the case of Joseph Brodsky, for example) (Burford 1974) or with didactic condescension to reeducate slackers and resocialize people incapable of labor discipline (Markovits 2006). Because even those countries of the Soviet Bloc with an ostensible multi-party system were, in fact, one-party states, that all-powerful Party was equally in a position to bend the law to persecute its enemies and to use it as an engineering tool in the pursuit of social welfare. The fact that the Party could choose whether to use the law for benign or repressive purposes made the normative state vulnerable to attacks from its prerogative counterpart. We have not yet addressed the questions whether (Marx aside) the ordinary, everyday law of socialist societies was actually socialist or, more modestly, whether some ideological and conceptual coherence pulled it together and marked it as a legal system set apart from others, and which of those typically socialist characteristics did indeed survive. That is the task of the remaining part of this review. In this section, I argue that at least the totalitarian misuses of those legal systems, their Stalinist side, are not confined to legal systems that have their origins in the teachings of the Marxist classics. Stalin (and Hitler) drove the terrorist deformation of supposed legal rules to extremes that (one hopes) will not be revived in human history. But that does not mean that judicial or prosecutorial terror is dead. They will continue to exist as long as violent and law-defying governments exist. Even democratic states will experience episodes in which the law is pushed aside to make room for the


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misuses of state authority to achieve political ends. The prerogative bacillus lives in the political bloodstream even of states that define themselves as governed by the law. The postsocialist countries of Eastern Europe vary in their resistance to the strain. Boris Yeltsin closed down the Russian Constitutional Court when it interfered too much with his political maneuvers. Bulgaria’s government tried to keep its Constitutional Court on a short leash by keeping judicial salaries miserably low and closing down the courthouse’s only elevator (Ganev 1997). Belarus President Lukashenko brought his country’s Constitutional Court under his control by changing the justices’ appointment procedures with the help of what was probably a fraudulent referendum (Constitution Watch 1996). Both the Russian and the Bulgarian courts in the end survived the attacks. The Belarus Constitutional Court is struggling. But Hamdan v. Rumsfeld (2006) suggests that even leaders of countries that did not recently emerge from the shadow of a totalitarian regime may be tempted to deal with political opponents outside the reach of the rule of law. Government lawlessness is a matter of degrees. Like evil empires, it is unlikely to die out.

THE LAW OF POST-STALINIST EASTERN EUROPE What about the lawful side of socialist law? How many of the institutions, rules, and practices that structured everyday life in Eastern Europe managed to outlive the collapse of the political systems that gave birth to them? And if parts of the pre-1989 law of formerly socialist countries continue to exist today, can we therefore conclude that socialist law is not yet dead? In the 1960s and 1970s, when the Berlin Wall seemed as immovable as the Alps, comparative lawyers spent quite a bit of energy on the question of whether the legal systems of the world could be grouped by conceptual affinities and, if so, whether the laws of the countries of the Soviet Bloc formed a common group. René David, for instance,


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distinguished six families of law characterized by their different ideologies and reasoning techniques of which (besides the occidental, the common law, and the Muslim, Jewish, and Hindu legal systems) the “family of socialist laws” was one (David & Brierley 1978). Zweigert (1961) used the device of style to assign a country’s law to a particular cluster of legal systems (Rechtskreis), with style understood, almost in a literary sense, as the signature techniques and idiosyncrasies that mark a text as the work of a specific author. One of the indications of a legal style, Zweigert suggested, is the amount of surprise and puzzlement one of its legal institutions can evoke in a comparativist coming from another legal system (Zweigert 1961). In their Introduction to Comparative Law, Zweigert & ¨ (1977), accordingly, discerned eight leKotz gal families, the socialist legal family being one of them. Hazard (1969), in his Communists and Their Law, found a “common core” of all socialist legal systems in their state-owned economies, their “unchallengeable leadership of the Party,” and their “mobilization for total social involvement” of new socialist men (pp. 523–24). And Berman (1950, p. 288), earlier than any of these authors, characterized socialist law by its parental quality: as a legal system that “treats the individual as a child or youth, as a dependent member who needs to be trained and guided in the interest of the whole as conceived by the state.” So which legal features common to the countries of the former Soviet Bloc can be called representative of socialism? To lawyers from the United States or Western Europe, quite a few of the pre-1989 East European legal institutions provoke that sense of amazement or surprise that Zweigert took to be the litmus test of an authentically other legal culture. In surveying some of these institutions, I will not talk about the Party’s dominance over all issues of law and legality. For the time being, the Party has not survived in Eastern Europe, at least not as the one and only “vanguard of the people,” and it will not, one hopes, be resurrected under another name or

shape. Socialist law contained enough other legal features whose style deviated considerably from the familiar style of Western law that are of interest in our context. I list only some of the most striking ones.

Property The hierarchy of property forms, for instance, was one of those surprising peculiarities of a Soviet-style legal system. State property (sometimes called people’s property) was considered the highest form. Social property (of collective farms and other cooperatives) came next, followed by personal property held by ordinary citizens for their individual use. Private property (to the extent that it was allowed to exist at all) ranked last and least and was defined as property held by private entrepreneurs for productive purposes that involved the employment of workers hired (and by definition, thus exploited) for the owners’ gains. Did this grading of property have legal (as distinct from political) significance? Socialist state-owned enterprises supposedly did not own their funds and equipment (because they were owned by the entire people), but the operative administration of their assets that they held instead looked very much like (highly regulated) state ownership. Socialist criminal law tended to punish theft of social property (which included state and collective property) more harshly than theft of personal property, thus signaling its preference for collective over individual interests. But this differentiation of sanctions eroded over time. The legal rights of all owners (possession, use, and the right to dispose of an item within the limits of the law) were essentially the same regardless of who owned what. And although socialist law practically restricted ownership of productive property to the state and reduced private property to the property of craftsmen employing a few hands, theses limitations reflected a socialist policy of state control over all economic activity rather than a different legal understanding of what it meant to own a thing. Capitalist www.annualreviews.org • The Death of Socialist Law?

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law, too, does not treat all owners alike. Depending on the economic policies of a particular state, tax or subvention rules will favor one set of owners (farmers, for instance) over other sets of owners. Personal property might be favored (such as homesteads) or disfavored (such as with tax exemptions for non-profitmaking enterprises). Many capitalist states today prefer private over public ownership. But the wave of capitalist privatizations of public services like telecommunication or railroads is fairly recent and could conceivably be reversed. No, the socialist scaling of property rights was not sufficiently distinct to see its disappearance as evidence for the death of an entire mode of legal regulation.


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Contracts Does far-reaching central planning qualify as different enough from Western practice to color all legal instruments encountered in its course as socialist? Take the socialist use of contracts. Economic planning in the Soviet Bloc had it ups and downs, with periods of tight centralist control often followed by economic failure, which in turn would lead to the loosening of controls, new disappointments, and the inevitable recentralization of an economic system uncomfortable with local and individual autonomy. Still, it needed a legal mechanism to coordinate the interactions of its economic units. Although an enterprise’s production targets were determined by the plan, its exchange relationships with other enterprises were structured by way of contracts—planned contracts, that is, agreements whose essential contents were largely predetermined by the plan and which the parties were obligated to conclude. If one party refused to do so, the other could bring a precontract dispute in economic courts called Arbitrazh—half judicial tribunals, half administrative clearinghouses—that would confer with planning authorities and the parties, look for a flexible solution to problems often caused by conflicts between the plan targets of the participants, mediate disagreements between 240

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all concerned, and order the formation of the contract. There was very little entrepreneurial volition left in these arrangements. Does that mean that planned contracts were sufficiently socialist to have become extinct? Of course not. We know enough examples of mandatory contracts in Western law to realize that not all of our contracts are celebrations of individual autonomy. Often, especially when public interests are involved, they simply serve as a device for coordinating and affirming the respective rights and obligations of parties with little choice in their arrangements. Car owners have to carry mandatory insurance for their cars (although they can still pick their insurance carrier), public utility companies have to offer their services to everyone who wants them, and mandatory arbitration in public employment in cases in which state employees are denied the right to strike resembles the precontract dispute resolution of socialist Arbitrazh courts that coordinated the interests of state enterprises hemmed in by the Economic Plan (Rau et al. 2006, p. 931). Especially in times of scarcity or war and in matters affecting public welfare, what the Germans call Kontrahierungszwang—that is, the stateimposed duty to conclude contracts—is well known to market economies.

The Procuracy If the use of contracts in a planned economy was not sufficiently alien to Western practices to qualify for extinction after the collapse of socialism, how about the institution of the Soviet procuracy? All countries in the Soviet Bloc used the highly centralized office of the public prosecutor not only to represent the state in criminal proceedings but also as a public watchman over the universal application of the law. In his function of general supervision, the prosecutor (or “procurator”) general monitored compliance of public agencies and state-owned enterprises with the law, carried out audits and spot checks to uncover violations, followed up on suspicions or complaints of illegalities, and prosecuted the offenders.


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For ordinary citizens, the prosecutor’s office was one of the first places to turn if one wanted to complain of the violation of one’s rights. Because of their undisputed identification with the state and its laws and their farreaching powers, prosecutors had higher status than other lawyers under socialism. While socialist judges dressed in street clothes to demonstrate their comradeship with ordinary people, Soviet prosecutors wore (faintly naval looking) uniforms. They were representatives of the power and authority of socialist law, creatures of Lenin’s conviction that only universal legal discipline could hold the state together (Lenin 1965), embodiments of a legal system caring more about public order than about individual rights. So should they have disappeared? We do not even have to look for similar auditing or monitoring agencies in the West to determine whether the prosecutor’s role of legal watchdog of the nation was socialist enough to have become extinct: It has, in fact, survived. Russia, Bulgaria, and Hungary, for instance, have kept in their constitutions both the prosecutor’s role in criminal investigations and her task of ensuring everybody’s (thus article 52 of the Hungarian Constitution) compliance with the law. Article 203 of the Polish Constitution uses a different term to achieve the same result by introducing a Supreme Chamber of Control that shall audit “the legality, economic prudence, efficacy and diligence” of central and communal government bodies and of state legal persons. Western observers were initially worried that a centralized and top-down institution focusing on the general observance of legality might be at odds with the rule of law’s democratic model, emphasizing the individual pursuit of rights through litigation (Smith 1997). But in a 1997 meeting between representatives of the Council of Europe and high-level Russian prosecutors, the Russians, at least, seem to have persuaded their Western critics that a central monitoring office that is “convenient, simple, accessible and free” to ordinary citizens (Sukharev 1998, p. 54) might serve

the protection of their individual interests at least as well as formal court procedures. Postsocialist citizens are used to complaining to the authorities. Complaints might lack the self-assertion and civic glamour of an individual citizen’s lawsuit against the state: They are about needs, not rights; they cast a citizen in the role of supplicant rather than enforcer of entitlements; and they have no legal bite. But informal complaint procedures, such as lodging a petition with the prosecutor’s office, require no attorney and fit the circumstances and abilities of people with more patience and persistence than aggressiveness and money. The Russian citizens, who in 1996 submitted roughly one million complaints to the prosecutor’s office (of which 210,000 uncovered violations of the law) (Sukharev 1998, p. 50), must be glad that the institution has survived.

Constitutional Law There is another place where legal features looking socialist to us survived the collapse of the ideological system that gave rise to them: East European constitutional law. This seems surprising since we think of constitutions as foundational documents that express a country’s values in more undiluted form than statutes concerned with solving everyday practical problems whose solutions are dictated by the subject matter at hand. Sovietstyle constitutions struck us as cynical proclamations of states that did not allow their citizens to function as autonomous adults: full of boasts about the past, empty promises for the future, rights that could not be enforced against the state, and government structures that did not reveal the omnipresence of the Party. Eastern Europe’s conversion to the rule of law, one might have thought, would have to express itself in constitutions totally different from the ones inherited from discredited regimes. It is true that the new East European constitutions introduced the features necessary to allow citizens to use their constitutions www.annualreviews.org • The Death of Socialist Law?

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as we think constitutions should be used: as weapons against the state. All East European constitutions protect freedom of speech and assembly, establish independent judiciaries, and create constitutional courts to defend these rights. But they also contain decidedly socialist-looking elements. As in old Sovietstyle constitutions, there are aspirational provisions or state goals, looking to the future, such as promises to safeguard a country’s national heritage or to protect the natural environment. All post-1989 constitutions proclaim the protection of pre-1989 social rights like the right to work, to housing, to health care, or to leisure. Some of these constitutions are quite reckless in their promises, such as the Armenian Constitution of 1995, that, in its article 31, announces: “Every citizen is entitled to an adequate standard of living . . . , to adequate housing, as well as to the improvement of living conditions. The state shall provide the essential means to enable the exercise of these rights.” Others are more cautious, such as the Polish Constitution of 1997, whose article 75 states that “public authorities shall pursue policies conductive to satisfying the housing needs of citizens . . . .” But all East European constitutions found it necessary to include these rights, and, as another sign of holding on to concepts from the days of socialism, all claim to protect those rights (just as the new Polish Constitution does) by what in the old days was called material guarantees—that is, not by promising a citizen personal entitlements that as subjective rights can be enforced by her in court but as objective rights, calling for state policies that shall result in their vindication. A good historical example of material guarantees was article 50 of the USSR Constitution of 1977, which promised to ensure freedom of speech by “making available public buildings, streets and squares to the working people . . . and by [providing] the opportunity to make use of press, television and radio.” We can see that those material guarantees must have been useless to protect a Soviet speaker’s right to criticize the Party. Material guaran-


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tees were much more helpful to protect rights that socialist governments actually approved of, such as the right to housing or health care, which usually were spelled out in greater detail by the rules of ordinary law. Unlike our procedural guarantees of rights that enable a right-holder to wield his right in court and with it vanquish an opponent, material guarantees do not increase a right-holder’s autonomy but rather his dependence on the goodwill and the generosity of the state that may or may not enact the legislation carrying out the constitution’s promises. Have the drafters of these constitutions not learned from their history? They still seem to view the state not as an opponent but as a collective of which all are part. Their past taught them to be suspicious: Post-1989 constitutions tend to contain rules on the fundamental importance of human life and dignity, the prohibition of torture, the protection of privacy (and its modern sibling: data privacy), and on citizens’ right to be informed of the activities of public authorities. And of course all establish judicial review of administrative decisions and, as superguardians of the constitution, constitutional courts. But while they manifest the recognition that the rule of law needs watching over with a wary eye, the new East European constitutions do not see the relationship between citizen and state as antithetical. They want their citizens involved and their state to care: Most contain rules on grassroots participation through national referenda or popular initiatives, and most provide for ombudsmen for civil rights to assist those citizens too weak or too marginal to enforce their rights through litigation. Like their pre-1989 predecessors, all post-1989 East European constitutions proclaim not only civic rights but also civic duties either in mixed chapters on Fundamental Rights and Duties (as in Hungary) or in separate sections on Obligations (as in Poland). Post-Soviet constitutions in the countries at a greater distance to central Europe may phrase what under socialist rule was called “the dialectical unity of rights


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and duties” in quite unreconstructed fashion, such as article 72 of the Azerbaijan Constitution of 1995, for instance, which reads: “Everyone has obligations to the state and society directly resulting from his/her rights and liberties.” But the conviction that rights entail duties toward others is shared by all. None of the new postsocialist constitutions is very concerned about safeguarding the public/private distinction. All see the constitutional texts not primarily as a way to delineate and safeguard areas of individual versus state authority but as a blueprint for the kind of society a nation wants to be.

PARENTAL LAW What are we to make of this? Is socialist law not dead? Many Western observers, who at close range advised and commented on the drafting of the new constitutional documents, were worried about their similarities to socialist precursors. They feared that the new constitutions’ aspirational provisions and their proclamations of social rights would create false hopes in citizens whose impoverished governments would be unable to fulfill expensive promises for housing, health care, job protection, or a cleaner environment. They disliked the constitutions’ policy pronouncements meant to back up those rights and predicted that, at best, they would be unrealizable (Cross 2001) and, at worst, would dull citizens’ perceptions of rights as promises to be kept and, in the process, would devalue the rule of law, encourage courts to meddle in issues that were properly for legislatures to decide, blur the public/private distinction, and undermine the fragile market economies that the new constitutions should help to stabilize (Sunstein 1993). Critics also thought it likely that constitutional promises of social rights would reaffirm the dependence on the nanny state that socialism fostered and that East European citizens now needed to unlearn (Sunstein 1993). “This is communism pure and simple,” wrote Sajo (1996) when the Hungarian Constitutional Court, in a series

of decisions in 1995, attempted to give meaning to the constitution’s promise of social security by blocking roughly half of the belttightening provisions of an austerity program by which the government, in the court’s view, had cut pension and welfare benefits without sufficient notice and without regard to constitutional values such as equality and legal certainty. Sunstein (2000), invited to comment on the draft of the new Ukrainian Constitution of 1996, warned against the inclusion of positive rights such as the right to rest and leisure: “They appear to apply to the private sphere as well as the government—a genuine disaster” (Sunstein 2000, p. 181). He also objected to the notion of constitutional duties and singled out the planned article 75 on property rights—“Ownership is socially oriented and must serve the interests of society”—for particular criticism: “A good candidate for deletion” (Sunstein 2000, p. 181). The article survived in seemingly more legalistic form, although the drafters decided to hold on to the idea of owners being indebted to “the interests of society.”1 What Sunstein did not mention at the time is that the proposed provision was identical, almost verbatim, not only with the property provision of the first East German Constitution of 1949 but also with those of the German Grundgesetz (Basic Law) of the same year and of the Weimar Constitution of 1919. As the Grundgesetz puts it: “Ownership obligates. Its use should also serve the social weal.” The similarities between constitutional texts of very different ideological provenance suggest that we cannot characterize the notion of social obligations attaching to property as “a holdover from Soviet constitutionalism” (Sunstein 2000, p. 180). Nor are the many social rights listed in the new East European constitutions exclusively socialist (Daintith 2004). A right to work can be found 1

Article 41-VII of the Ukrainian Constitution of 1996 reads: “The use of property shall not cause harm to the rights, freedom and dignity of citizens, the interests of society, or aggravate the ecological situation and the natural qualities of land.” www.annualreviews.org • The Death of Socialist Law?

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as early as 1814 in the Norwegian Constitution (Glendon 1992, p. 524); provisions obligating governments to support public education were routinely included in American state constitutions of the nineteenth century; the Italian Constitution of 1948 contains a whole range of work-related rights, including rights to adequate remuneration, holidays, and unemployment benefits; and the Japanese Constitution of 1947 promises that “all people shall have the right to maintain the minimum standards of wholesome and cultured living.” The proclamation of state tasks and aspirations [equally frowned upon by Sunstein (2000, p. 180) because they may be impossible to reach and thus “turn the constitution into something worthless”] goes back to European constitutional thought of the late eighteenth century (Casper 1989) and has found concrete expression in many post-1945 continental constitutions. Environmental protection as a constitutional goal, for instance, came to Switzerland in 1971, to Greece in 1975, to Portugal in 1978, and to Germany as late as 1994 only because of a very German philosophical debate over whether an anthropocentric or an ecocentric approach to the issue would be more desirable (Stein & Frank 2004, p. 172). How can we explain the similarities between socialist, postsocialist, and frankly capitalist legal systems if not by genetic traits passed on directly by a legal culture to its heirs? In his path-breaking 1950 book Justice in Russia, in which he described the parental character of Russian law as its essential quality, Berman (1950, p. 91) also wrote: “Pure capitalism and pure socialism are myths. Nowhere does either exist.” He added in the second edition of the book published in 1963: “It is the author’s intention to stress these ‘parental’ elements as characteristic not only of Soviet law but also, increasingly in the twentieth century, of other legal systems” (Berman 1963, p. 368). Law that educates, protects, guides, and directs its citizens, Berman argued, is the mark not just of socialist states but of highly complex industrial societies in general. Mod-


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ern man is too dependent on services that he cannot provide himself (education, health care, transportation, etc.), too enmeshed in a worldwide web of trade and communication that he does not control, too vulnerable to disasters not of his own making to be able to do without the state’s assistance. All modern states, at least to some degree, must be parental. The drafters of the new East European constitutions knew from experience how much they needed a protective state. Emerging from the tutelage of socialism, they longed for freedom, but they also had no illusions about their ability to make it entirely on their own. They wanted the rule of law and the welfare state. Hence the combination of civic and social rights in the new constitutions. The documents make clear that their creators realized that social rights, unlike traditional defensive rights, cannot function as individual weapons against the state but only as objective guidelines for state policies and that legislatures need wide margins of appreciation to design those policies. Sometimes the constitutions’ hope for welfare policies sounds like no more than a pious wish, as in article 35 on the Azerbaijani Constitution’s right to work: “The state will do its best to liquidate unemployment.” Many promises of social rights sound noncommittal, such as article 40 from the Russian Constitution: “State bodies and organs of local self-government shall encourage home construction and create conditions for the realization of the right to a home.” But all constitutions wanted their aspirational provisions and social rights to have real legal weight even if the drafters at the time may not have been quite sure how weight could be attached to policies that had yet to be designed by the respective legislatures. The Russian Constitution tried to achieve this goal in a way that recalls the German Constitutional Court’s case law on the third-party impact (Drittwirkung) of constitutional rights—that is, as guidelines for the interpretation of all law. Article 18 of the Russian Constitution reads: “The rights and liberties of man and


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citizen shall have direct effect. They shall determine the meaning, content and application of the laws . . . and shall be secured by the judiciary.” The Hungarian Constitution states in article 70K: “Claims arising from infringement on fundamental rights and objections to the decisions of public authorities regarding the fulfillment of duties may be brought before a court of law.” In the event, East European constitutional courts not only have used the welfare rights and aspirational provisions of their constitutions to strike down legislation that severely limited unemployment benefits (such as the Russian Constitutional Court in a 1997 decision) or social insurance benefits (such as the Hungarian Constitutional Court curtailing the enforcement of the Economic Stabilization Act of 1995) (Scheppele 2004), but also have suggested that, in connection with the rights to life and dignity, these provisions, under extraordinary circumstances, might give a citizen an individual claim against the state. Although the constitutional promise of social security usually is not read as providing a justiciable claim to individual benefits, the Hungarian Court held in 2000 that “in borderline cases,” it might entitle a homeless person to the most basic shelter needed “to offer protection from a danger directly threatening human life” (Hollo & Erdai 2005, p. 276). In a 1994 decision, the court interpreted the Hungarian Constitution’s “right to a healthy environment” (again, in combination with the right to life) as a promise that an individual plaintiff could enforce by challenging a privatization law that would have led to the desecration of areas under natural protection (Solyom & Brunner 2000, p. 298). The right to life and dignity has also led postrepression constitutional courts in other parts of the world to allow, in situations of great need, the individual judicial enforcement of social rights that ordinarily should be enforced objectively—that is, through welfare policies designed by the legislature. In 2000, the South African Constitutional Court in its famous Grootboom case relied on “human

dignity” and the “right to have access to adequate housing” to grant the suit of squatters evicted from their miserable shacks on private land and ordered the state to devise and implement a program to provide “relief for people who have no access to land, no roofs over their heads, and who are living in intolerable conditions or crisis situations” ( Jackson & Tushnet 2006, p. 1683). The Indian Supreme Court ruled that the right to life of article 21 of the Indian Constitution of 1950 implied the right to live with human dignity and thus “includes necessities such as adequate nutrition, clothing and shelter” (Francis Coralie v. Union Territory of Delhi 1981). What interests me in these cases is not their different use of doctrine but the fact that courts in countries that emerged from authoritarian rule (postsocialism, postapartheid, postcolonialism) combined the notions of state responsibility for the weak with the right to life to fashion a jurisprudence of a caring (or parental) state that owes its citizens the help they need to achieve individual autonomy. None of these courts was particularly worried that its decisions might illegitimately interfere with the prerogatives of their legislatures. They simply wanted to enforce the moral values of their constitutions. Justice Albie Sachs of South Africa wrote at the time Grootboom was pending before his court: “When it comes to matters of deep principle, our lack of accountability actually becomes a virtue. We are not running for office . . . . We defend deep core values which are part of world jurisprudence and part of the evolving constitutional traditions of our country” (Sachs 2000, p. 1388). In this view, a constitution is not primarily a compact to allocate competing rights and obligations between the different branches of government and its citizens, but (like the old socialist constitutions) a political manifesto and (unlike the old socialist constitutions) the conscience of a nation. Probably the best example of this type of constitution is the German Grundgesetz of 1949, yet another post-totalitarian constitution that greatly influenced both www.annualreviews.org • The Death of Socialist Law?

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the South African Constitution of 1996 and the postsocialist constitutions of Eastern Europe. The Grundgesetz contains a list of basic rights conventionally phrased as rights against the state, mentions no social rights, and only in its article 20 describes the Federal Republic as a social state, a definition that was barely debated in the Parliamentary Council at the time the constitution was drawn up (Kommers 1997, p. 242). But the new German Constitutional Court fairly quickly developed that jurisprudence of the Kantian welfare state that contains the same surprising mix of liberal and parental elements that makes the new East European constitutions look as if they had only partially emerged from their socialist past. Basic rights, the court holds, not only serve as individual weapons against the state but also color the interpretation of all ordinary law (7 BVerfGE 198 1958)—a view that blurs the public/private distinction so important to some Western lawyers. Rights are inseparable from the obligations they entail (39 BVerfGE 1 1975). The social state owes “care and solicitude to individuals and social groups who because of their personal circumstances and social disadvantages are limited in their individual and social development” (45 BVerfGE 376 1978). Although the legislature has wide leeway in designing its social policies, it may not deny its citizens that “existential minimum” of goods and services that is necessary to allow each to live a life of human dignity (110 BVerfGE 412 2004). A constitution is not simply a depository of unrelated basic rules but a gestalt-like value order that should inform and guide not only all exercise of public authority but also the interactions in civil society (Kommers 1991, p. 858). Occasionally, the phrasing of the court’s decisions reveals how much its case law is driven by parental concern for citizens who cannot always be relied on to safeguard their own interests. Rejecting the complaint that Germany’s new mandatory insurance scheme to protect against the costs of old-age nursing care violated the right to individual freedom guaranteed in article 2 of the Basic


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Law, the court basically said: Look, we can’t trust citizens to properly prepare for their old age. “The population lacks the necessary awareness of the risks” (103 BVerfGE 195, 223 2001). The duty of the state is to step in and care for them if the need arises. Germany is not the only country whose legal system tries to combine the protection of individual autonomy and welfare, of human rights and needs, through rules and court decisions that increasingly seem to blur the boundaries between public and private law. Even in the United States—whose legal culture is profoundly suspicious of the state, believes fiercely in the self-made man and woman, and therefore by temperament prefers the private resolution of problems over their public management—law is becoming increasingly parental. American judges who would reject the German doctrine of Drittwirkung (that interprets even private law relationships in the light of basic constitutional rights) as running afoul of the public/private distinction nevertheless have achieved similar results by imputing state actions to private entities carrying out public functions in a discriminatory manner. American state constitutional courts have enforced their constitutions’ promises of “an efficient system of public free schools” (such as, for instance, the Texas Constitution) not by way of the equal protection or due process clauses but as constitutional obligations of the state to provide acceptable education to their citizens (Hubsch 1992). American judges were willing to recognize private rights of action against state welfare agencies’ failing to live up to their statutory obligations (see, e.g., Lynch v. King 1982, aff’d sub nom. Lynch v. Dukakis 1983) until the Supreme Court (in this matter at odds even with Congress) intervened (Suter v. Artist M. 1992). American procedure is losing some of its adversarial features (which leave the manner in which a legal conflict is defined and argued to the parties’ own devices) and makes increasing use of inquisitorial techniques to advance the search for truth. It is no accident that these changes have been propelled by


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new forms of complex litigation—especially class action suits of the Civil Rights era dealing with issues such as school integration or prisoners’ rights—that led to the emergence of court-appointed special masters to manage (pretrial) the collection of evidence and (posttrial) the implementation of consent decrees (Kessler 2005). These suits are products of a modern mass society, brought to enforce reforms that legislatures and executives seem incapable of realizing on their own. Their very undertaking blurs the distinction between private rights and public welfare. The “managerial judges” (Resnik 1986) presiding over them are also parental judges, trying to improve the life chances of their charges. In Chayes’s (1976, p. 1316) words, their efforts are legitimated by their “responding [to], indeed [by] stirring the deep and durable demand for justice in our society.” American individual litigation, too, is beginning to deviate from that telegenic image of a dramatic joust between two opponents so typical of adversarial procedure. Juries are in decline (Damaˇska 1997), bench trials are increasing (Schulhofer 1984), and in specialized administrative courts the facts are tried by public officials rather than by jurors. With the number of pro se litigants rising in the United States, federal courts are becoming more parental in helping inexperienced parties with their cases (Marcus 2005). In England (another common law country traditionally preferring bottom-up to top-down approaches to the law), the new Civil Procedure Rules adopted in 1998 have greatly increased the inquisitorial (and thus the parental) powers of the judge (Zuckerman 2006)—that is, have lessened the need for parties to rely on their own fighting spirit or on that of highpowered and expensive attorneys. The change was driven by the European Court of Human Rights’ insistence on cheaper access to justice and on the more timely resolution of disputes (Zuckerman 2006, p. 50). These examples show that the preservation of seemingly socialist elements in the new laws of Eastern Europe need not be due to

the survival of a by now (one hopes) discredited ideology. They simply may reflect the shared experiences of citizens aware of their dependence on the state. We still have difficulty seeing socialism as part of worldwide legal developments. For a long time, we used to think of the Soviet Bloc as indeed a block: a massive, immovable, immutable object, profoundly foreign, there to stay, surrounded by an iron curtain that divided the world into a free and an unfree part. Even if it attempted change, the legal system of this empire had to be forever different from our own. Now that the Wall has fallen, we can see that socialism was not eternal, that there were times before and after it, and that continuous change connects our worlds.

CHANGE COMES GRADUALLY For some years after 1989, the big-bang approach of capitalist economists advising radical privatization and instant markets in the former Soviet Bloc still suggested that social change can be immediate and total. Meanwhile, we have come to realize that it is difficult, ambiguous, gradual, and slow. Socialism began to crumble before the miraculous year 1989. Cautious attempts to use market mechanisms for organizing the economy were made far earlier (Izdebski 1989). Take competition law: Yugoslavia introduced an Act on Suppression of Unfair Competition and Monopolistic Agreements in 1974; Hungary passed its Act on the Prohibition of Unfair Economic Activities in 1984; and Poland followed with an Act on Countering Monopolistic Practices in the National Economy in 1987 (Varady 1999). Attempts to domesticate state power with the help of law preceded the collapse: The Soviet Union announced the judicial review of administrative decisions in its new Constitution of 1977 and enacted a law to that effect in 1987; Poland established administrative courts in 1980 and a Constitutional Tribunal in 1985 (Brzezinski & Garlicki 1995); and the East German Democratic Republic (DDR) passed its Law on the www.annualreviews.org • The Death of Socialist Law?

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Authority and the Procedure of Courts to Review Administrative Decisions in December 1988. The right to life was of concern to socialist governments before they toppled: The DDR abolished the death penalty in 1987; in Hungary, executions were greatly reduced in the 1980s and suspended in 1988 (Uitz 2004). On the other side of the watershed of 1989, socialist legal features of the past have continued into the present. As we have seen, aspirational provisions, welfare rights, objective guarantees for the enforcement of those rights and the concept of an interdependence of rights and duties made their way into the new ruleof-law constitutions of Eastern Europe. The procurator general’s task to watch over the general observance of the laws still serves to help postsocialist citizens with the enforcement of their rights. The language and conceptual vocabulary of socialist law will not so quickly disappear from legal conversations in the new democracies ( Jakab & Hollan 2005). East European judges, used to respecting the authority of the law-giving state, will likely re¨ main positivists for many years to come (Kuhn 2004). The legal institutions that were most successful in straddling the historical divide of 1989 were those that acknowledged both a citizen’s insistence on his rights and his inability to fight for them all by himself. The ombudsman for civil rights is such an institution: a personal representative of the rule of law, with far more clout than a citizen could ever call his own, easily accessible, and ready to push for those too weak or timid to challenge powerful opponents. The office of the ombudsman, introduced in Poland in 1987, was hugely successful in defending individual rights against the socialist state and, after the collapse of socialism, was quickly exported throughout Eastern Europe (Elcock 1996). But then again, ombudsmen were not a socialist invention. Originally of Scandinavian origin, the institution first came to the United States in 1969 (Hill 2002) and could be found in Western Europe in many instances in which individuals in tightly hierarchical set-


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tings (such as the military) or in situations intimidating to ordinary people (such as being part of an immigrant or minority community) needed assistance to enforce their rights. In other words, the office of an ombudsman— like that of the procuracy, like social rights, like the objective guarantees for their protection that allow constitutional courts to guide their countries’ legislatures toward the realization of constitutional goals—is an essentially parental institution. Its checkered history can also demonstrate that legal change is not confined by national borders and does not necessarily follow a narrow, one-directional trajectory from past to present. The ombudsman traveled from Scandinavia to Moscow by way of Hawaii and Warsaw. Although pre-1989 East European competition law prepared the ground for postsocialist antitrust legislation, the conceptual models for that legislation, when it was passed to structure the new markets, did not rely on national experiences but were imported from the West. The post-Soviet resurrection of the Russian jury (Thaman 1995) owes less to its tsarist predecessor of 1864 than to the persuasiveness of American advisors in the 1990s, pushing for the U.S. model. Some legal innovations may be spurred on “by chance and prestige” (Adjani 1995): The German influence on the Hungarian Constitution, for instance, was surely helped along by the fact that four justices of the Hungarian Constitutional Court spent time as Humboldt Fellows in the Federal Republic, that two others had studied at German universities, and that many spoke German (Dupré 2003). Sometimes, inspirations for reform may come from far away: The “right to minimum standards of wholesome living,” for example, found its way into the Japanese Constitution of 1947 owing to the encouragement of the New Dealers among the American advisors who assisted the Supreme Commander of the Allied Powers with the preparation of the draft (Osuka 1990). There are many ways— some straight, some circuitous—in which legal institutions may travel around the globe.


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Some legal changes may zig-zag back and forth, with similar developments popping up in countries of very different ideological persuasion and at different times. Consider family law. Today, the family law of all modern industrial societies looks fairly similar in its important outlines. It did so even before the collapse of socialism. American and Soviet family law of the 1980s largely agreed on many basic issues: the equality of husbands and wives, both spouses’ obligation to support their children, de facto unilateral divorce based on one partner’s assertion that the marriage had broken down, at best minimal and short-lived alimony after divorce, the abolition of illegitimacy, and the growing assimilation of formal marriage and informal cohabitation. Both systems had learned to care less about the marriage bond itself and more about its consequences for society. Given socialism’s and capitalism’s profoundly diverging views on individual autonomy, on religion, on property rights, on privacy, on the significance of legal formality—to say nothing of capitalism’s “feminine mystique” (Friedan 1963) and socialism’s ideal of women as producers fully integrated at the workplace—one would have expected their family laws also to be profoundly different from one another. And so they were, originally. With patron saints like Friedrich Engels (1972) and August Bebel (1920), socialist lawmakers were far ahead of their bourgeois colleagues when they privatized marriage and socialized the family (Markovits 1990). The Russian Decree on the Introduction of Divorce of December 1917, the Russian Marriage Code of October 1918, and the RSFSR Family Code of 1926 together introduced the legal equality of husband and wife, permitted unilateral divorce, put informal de facto marriages on the same legal footing as formally registered marriages, abolished illegitimacy, gave the court discretion on how to divide a couple’s community property after divorce, and allowed the spouses to retain separate residences and to choose their marital name. At that time, marriage in the United States still was a highly

formalized, male-dominated, contractual relationship, with the spouses’ property rights determined by title, divorce based on fault, and unmarried relationships and their offspring deprived of any rights. The radical family policy of early socialist legislatures was founded on an ideological dream: of a society of abundance, in which distinctions of wealth would be abolished, men and women would work alongside each other in factories and government offices, state institutions would take over child care and household production, and marriage would cease to be a social relationship and become a personal union, legitimated only by the mutual affection of the spouses. The dream was short-lived. Economic chaos, civil war, and famine soon made it obvious that the Soviet state could not yet do without traditional legal institutions to hold society together. Under Stalin, Soviet family law, like other areas of law, looked for conservative solutions to social problems: It restored familial gender differentiations and full parental responsibility for children, greatly restricted divorce (and that other means of achieving women’s independence: abortion), and, by outlawing paternity suits, reinstituted illegitimacy. Socialist and capitalist family law became increasingly alike. But as time went on, both Soviet and American conservatism began to be at odds with the family relationships and lifestyles of their citizens. In the Soviet Union, restrictions on abortions and divorces were eased after Stalin’s death; in the United States, divorce based on fault was tacitly transformed into a collusive system of negotiated breakup. With the sexual revolution, women’s liberation, and the pill, conventional marriage made increasingly less sense. More and more women worked outside their homes, marriage rates declined, cohabitation became respectable, extramarital births (first of minority children, then of Anglo children, and today, regardless of race, even of children of the middle classes) are on the rise. Like Russian family politicians of the 1920s, capitalist family politicians became less concerned about the www.annualreviews.org • The Death of Socialist Law?

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formal legal institution marriage than about its factual consequences: the children, their support and custody, the integration of divorced homemakers into the workforce, the impact of single parenthood on children’s welfare, the functioning of reconstituted families, child abuse and neglect. In other words, the welfare state took over. For a while, American family law was still divided into one law for the wealthy and another for the poor, with private law dealing with the rights and obligations of family members capable of self-support, and public law (in particular, social security and welfare law) addressing the family problems of the needy. Jacobus tenBroek, who in 1964 first drew attention to this dual system (tenBroek 1963/1964), described the two contrasting approaches of the law as modes of regulation that, in our context, could be called capitalist and socialist. The private family law for the well-to-do dealt with family conflicts in terms of legal formalities, parental rights and responsibilities, personal property, and contracts and aimed for the vindication of individual rights. The public family law for the poor focused not on rights but needs, on facts more than on legal forms (for instance, even without a couple’s marriage, the “man in the house” was responsible for the support of a woman’s children), saw families as collectives rather than as unions of individuals, and aimed for the efficient and thrifty expenditure of public funds. In the (almost) half century since tenBroek’s analysis, this dual system has moved toward greater uniformity. Some issues of private family law are still reserved almost exclusively to the wealthy, such as premarital agreements and significant property divisions. But on the whole, American family law has adopted what one might call a public law approach to family law disputes. TenBroek


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himself predicted two reasons for this development: the growing insistence on constitutional rights (which can protect the poor against arbitrary decisions by welfare authorities) and American family policy’s new and primary focus on the welfare of children (which puts individual rights of adults second to the needs of the most vulnerable members of the family). Today, divorce courts work in managerial fashion, with judges not so much vindicating individual entitlements as rearranging lives shaken by personal crises. State supervision over parental child care has increased. Judges cede more and more authority to social workers. Needs trump rights even in disputes not involving children, such as the division of marital property, which hinges less on legal arguments involving title, input, contract, or legitimate expectations and more on the spouses’ likely employability or rehabilitation after divorce. As in the Soviet Union of the 1920s, it matters little to American courts and less to American child protection and welfare authorities whether a separating couple was ever married or not. But unlike in the Soviet Union of the 1920s, the modern state is more or less able to live up to its parental obligations. And its citizens have learned to expect its help. This review started out by asking whether socialist law had died. As the discussion of family law illustrates, it was alive (if not as well as one might wish) in the United States even before socialism itself expired. If we exchange the word socialist for the word parental, there is no need to be surprised by the result. What has changed with the collapse of socialism, however, is the law’s pedagogic thrust. With individual rights now enforceable against the sovereign, the welfare state in Eastern Europe and elsewhere, one hopes, has become a parent who wants and encourages her children to grow up.

DISCLOSURE STATEMENT The author is not aware of any biases that might be perceived as affecting the objectivity of this review. 250

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Hollo A, Erdei A, eds. 2005. Selected Decisions of the Constitutional Court of Hungary (1998–2001). Budapest: Akademiai Kiado. 447 pp. Hubsch AW. 1992. The emerging right to education under state constitutional law. Temple Law Rev. 65:1325–48 Izdebski H. 1989. The revival of commercial law in the Soviet Union and other East European countries. Rev. Social. Law 15:365–91 Jackson VC, Tushnet M, 2006. Comparative Constitutional Law. New York: Foundation. 2nd. ed. 1776 pp. Jakab A, Hellau M. 2005. Die dogmatische Hinterlassenschaft des Sozialismus im heutigen Recht: Das Beispiel Ungarn. Jahrb. Ostr. 46(1):11–40 Kessler AD. 2005. Our inquisitorial tradition: equity procedure, due process, and the search for an alternative to the adversarial. Cornell Law Rev. 90:1181–275 Koestler A. 1941. Darkness at Noon. New York: Macmillan. 267 pp. Kommers DP. 1991. German constitutionalism: a prolegomenon. Emory Law J. 40:837–73 Kommers DP. 1997. The Constitutional Jurisprudence of the Federal Republic of Germany. Durham, NC: Duke Univ. Press. 2nd ed. 620 pp. ¨ Kuhn Z. 2004. Worlds apart: Western and Central European culture at the onset of the European enlargement. Am. J. Comp. Law 52:531–67 Lenin VI. 1965. “Dual” subordination and legality. To Comrade Stalin for the Political Bureau. Collected Works, 33:363–67. Moscow: Progress. 2nd English ed. Lewin M. 1984. Society, state and ideology during the first five-year plan. In Cultural Revolution in Russia, 1928–31, ed. S Fitzpatrick, pp. 41–77. Bloomington: Indiana Univ. Press Loeber DA. 1970. Legal rules “for internal use only.” Int. Comp. Law Q. 19:70–98 Lynch v. Dukakis, 719 F.2d 504 (1st Cir. 1983) Lynch v. King, 550 F. Supp. 325 (D. Mass. 1982) Marcus R. 2005. Putting American procedural exceptionalism into a globalized context. Am. J. Comp. Law 53:709–40 Markovits I. 1990. Family traits. Michigan Law Rev. 88:1734–58 ¨ Markovits I. 2006. Gerechtigkeit in Luritz. ¨ Eine ostdeutsche Rechtsgeschichte. Munchen: C.H. Beck. 304 pp. Marx K. 1994. On the Jewish question. In Early Political Writings, ed. J O’Malley, with RA Davis, pp. 28–56. Cambridge, UK: Cambridge Univ. Press. 194 pp. Marx K. 1996. Critique of the Gotha Programme. In Later Political Writings, ed. T Carver, pp. 208–26. Cambridge, UK: Cambridge Univ. Press. 260 pp. Osuka A. 1990. Welfare rights. Law Contemp. Probl. 53:13–28 Pashukanis EB. 1951. The general theory of law and Marxism. In Soviet Legal Philosophy, transl. HW Babb, pp. 111–225. Cambridge, MA: Harvard Univ. Press. 465 pp. Rau AS, Sherman EF, Peppet SR. 2006. Processes of Dispute Resolution: The Role of Lawyers. New York: Foundation. 4th ed. 1112 pp. Resnik J. 1986. Managerial judges. Harvard Law Rev. 96:374–448 Sabrow M. 2005. Gab es eine stalinistische DDR? In ZeitRäume. Potsdamer Almanach des Zentrums fur ¨ Zeithistorische Forschung, ed. M. Sabrow, pp. 131–41. Berlin: Transit Buchverlag Sachs A. 2000. Social and economic rights: Can they be made justiciable? SMU Law Rev. 53:1381–91 Sajo A. 1996. How the rule of law killed the welfare reform. East Eur. Const. Rev. 5(1):31–41 Scheppele K. 2004. A realpolitik defense of social rights. Texas Law Rev. 82:1921–61 Schulhofer S. 1984. Is plea bargaining inevitable? Harvard Law Rev. 97:1037–107


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Sharlet R. 1984. Pashukanis and the withering away of law in the USSR. In Cultural Revolution in Russia, 1928–31, ed. S Fitzpatrick, pp. 169–88. Bloomington: Indiana Univ. Press. 309 pp. Sharlet R, Beirne P. 1984. In search of Vyshinsky: the paradox of law and terror. Int. J. Sociol. Law 12:153–77 Smith GB. 1997. The struggle over the procuracy. In Reforming Justice in Russia, 1864–1996, ed. P Solomon, pp. 348–73. Armonk, NY: M.E. Sharpe Solomon PH Jr. 1987. Soviet criminal justice and the Great Terror. Slavic Rev. 46(3/4):391–413 Solomon PH Jr. 1996. Soviet Criminal Justice Under Stalin. Cambridge, UK: Cambridge Univ. Press. 494 pp. Solyom L, Brunner G, eds. 2000. Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court. Ann Arbor: Univ. Mich. Press. 417 pp. ¨ Mohr Siebeck. 19th ed. 500 pp. Stein E, Frank G. 2004. Staatsrecht. Tubingen: Sukharev A. 1998. The role of the prokuratura in strengthening legality and safeguarding human rights. In The Prokuratura in a State Governed by the Rule of Law, Multilateral Meeting Organized by the Council of Europe in Conjunction with the General Prosecutor’s Office in the Russian Federation, Moscow, 8–9 January 1997, ed. Council of Europe, pp. 49–54. Strasbourg: Counc. Eur. Publ. 168 pp. Sunstein C. 1993. Against positive rights. East Eur. Const. Rev. 2(1):35–38 Sunstein C. 2000. American advice and new constitutions. Chicago J. Int. Law 1:173–83 Suter v. Artist M., 503 U.S. 347 (1992) tenBroek J. 1963/1964. California’s dual system of family law: its origin, development, and present status. Stanford Law Rev. 16:257–317, 900–81; 17:614–82 Thaman SC. 1995. The resurrection of trial by jury in Russia. Stanford J. Int. Law 31:61–274 Uitz R. 2004. Lessons from the abolition of capital punishment in Hungary: a fortuitous constellation amidst and beyond democratic transition. Acta Juridica Hungarica 45/1-2:67– 99 Varady T. 1999. The emergence of competition law in (former) Socialist countries. Am. J. Comp. Law. 47:229–75 Vyshinsky AY. 1948. The Law of the Soviet State. Westport: Greenwood. 749 pp. Zuckerman A. 2006. Civil Procedure. Principles of Practice. London: Sweet & Maxwell. 2nd ed. 1179 pp. Zweigert K. 1961. Zur Lehre von den Rechtskreisen. In XXth Century Comparative and Conflicts Law. Legal Essays in Honor of Hessel E. Yntema, ed. K Nadelmann, AT von Mehren, JN Hazard, pp. 42–55. Leyden: Sythoff ¨ H. 1977. An Introduction to Comparative Law. Vol. I: The Framework. AmsZweigert K, Kotz terdam: No. Holland. 385 pp.

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Legal Innovation and the Control of Gang Behavior Eva Rosen1 and Sudhir Venkatesh2 1

Department of Sociology, Harvard University, Cambridge, Massachusetts 02138; email: [email protected]

2

Department of Sociology, Columbia University, New York, New York 10027; email: [email protected]


Key Words


law, crime, street gang, youth, disorder, order maintenance


Abstract This review considers one of the most prominent methods of combating gang activity in the second half of the last century, namely the deployment of legal strategies to prevent gang formation and intervene in existing gang structures. These include highly formalized strategies, such as the enactment of legislative decrees such as injunctions that limit the association of gang members in public space, as well as informal procedures in which communities create an indigenous and localized set of norms and juridical procedures to fight gang activity. Research on legal tactics and gang control in the past few decades has shown that the formative understanding of the city as a social ecology of distinct and separate communities, in which social institutions and residents are largely attuned to activity occurring within their boundaries, remains at the heart of social policy formulation with respect to youth delinquency. The review addresses these major legal innovations and the debates surrounding them.

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INTRODUCTION


Crime rates have been falling nationally. Yet American social science, the popular media, and law enforcement organizations continue to expend considerable time and energy on understanding the causes and consequences of criminal behavior. In particular, there has been sustained interest in the behavior of street gangs (see Coughlin & Venkatesh 2003). The role of street gangs as organized entities perpetuating criminal activity is not a new phenomenon. However, each particular historical period bears witness to different types of gang delinquency and correlatively unique strategies for gang abatement strategies. This article considers one of the most prominent methods of combating gang activity that arose in the past three decades, namely the deployment of legal strategies to prevent gang formation and intervene in existing gang structures. These include highly formalized strategies, such as the enactment of legislative decrees that limit the association of gang members in public space, as well as informal procedures in which communities create an indigenous and localized set of norms and juridical procedures to fight gang activity. Note that this article focuses its attention on urban gang activity. Many of the legal strategies occur in suburban and exurban areas as well; however, in most cases, they have been developed in the context of metropolitan areas and then exported outward. Thus, the focus on urban gangs has relevance for wider explorations. The article also focuses on the U.S. case.

HISTORY: GANGS AND THE URBAN ECOLOGY Efforts to combat street gangs are at least a century old. Some of the earliest works on American urban gangs arose as a part of the Chicago School of sociology. This perspective on the city was developed by social sci-

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entists at the University of Chicago in the early twentieth century and had considerable influence on how Americans (in and out of the academy) looked at, and responded to, patterns of human behavior in the emerging metropolis. Thrasher’s [1963 (1927)] seminal work, The Gang, examined 1313 street gangs in Chicago neighborhoods. Thrasher’s comprehensive view of the city’s gangs was not intended to combat gang activity. Nevertheless, it was motivated in the spirit of sociology at that time, whereby theorization was inextricably linked to the pragmatic need to spur action and reform. Thrasher developed a systematic portrait of gang formation and reproduction in the city, and, in this research initiative, he paid particular attention to the institutions that played a role in curbing juvenile delinquency. Like his peers at the University of Chicago, where much of the leading research on delinquency was taking place, Thrasher tried to combine scientific reasoning with pragmatism. The early twentieth century Chicago School writings culminated in the influential “social disorganization” theory (Shaw & McKay 1942). Clifford Shaw and Henry McKay portrayed juvenile delinquency as an “ecological” problem: Communities with high rates of gang activity were those in which local residents, groups, organizations, etc., either failed to transmit values to young people or failed to exercise adequate social control. These authors stayed true to the reigning human ecology model of the city by focusing their efforts on local communities—these were the areas where delinquency had its etiology, and hence where the solutions must be targeted. The human ecology framework for understanding urban structure and process posited that the city is a composite of discrete and distinct natural areas (Venkatesh 2001). People experienced much of their daily lives within their neighborhoods, so early scholars thought, and the view of urban gangs reflected this sentiment: Politicians employed the gang to bring out the vote; gangs protected


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turf, which meant they stayed within the boundaries of a specified natural area; gang members could be an indigenous security force for neighborhood residents; and so on (Venkatesh 1999, Suttles 1968). The social disorganization perspective was deeply influential for much of the twentieth century. Gang activity was thought to be an ecological (local) problem, and, as the welfare state grew in the twentieth century, antigang initiatives were in fact joint efforts in which government (at various levels) funded social workers, who then combed streets, parks, and alleys to find wayward youth. In line with the ecological perspective, the objective was to reintegrate young people into youth centers, schools, employment agencies, worksites, and other so-called mainstream social institutions that would control their behavior and transmit proper values to the youth— what Spergel (1995) has called the social work approach to fighting gangs. Because street gangs were largely comprised of adolescents, this approach tended to be effective: Social workers focused their energies on individuals who were naturally aging out of the gang and in need of work and income for their families. This crime fighting tactic also worked because of a thriving urban industrial economy that offered employment for youth. This so-called social work approach to gang intervention changed radically after the 1960s. The reasons driving the shifts are complex, but they include the retrenchment of the welfare state; the concomitant lack of support of the American public for government-based programs that helped poor and needy communities (Rieder 1985); the changing profile of street gangs from adolescent peer groups to assemblies of teenagers as well as young adults; and the move away from penal welfarism toward a punitive model of policing that placed “less emphasis on the social contexts of crime and measures of state protection and more on prescriptions of individual/family/community responsibility and accountability” (Muncie 2007, p. 20). In ma-

jor urban areas, one saw that enforcement agencies—e.g., police, FBI, specialized tactical units dedicated to narcotics trafficking— took the lead in targeting gangs where once social workers, public health officials, and the clergy worked the streets. Along with these historical shifts, after the 1960s one saw a profound increase in street gang membership and gang-related violence (this history is presented in greater detail in Coughlin & Venkatesh 2003). It would be easy to argue that the change in gang activity necessitated novel approaches. Klein (1995) argues that street gangs’ primary activity was inactivity, but more recently, in Chicago (which was not dissimilar to other major urban areas in the Northeast, Midwest, and select western municipalities such as Los Angeles), gang-related homicides increased five times from 1987 to 1994 (see Block et al. 1996 for more background). The rate of street gang crime in the two most dangerous parts of the city was 76 times that of the two safest areas. Part of the increase in crime occurred because, as recent studies have argued, street gangs became more entrepreneurial. Furthermore, many of the most developed street gangs were in minority inner-city communities. In these areas, the gangs attempted to control underground economies that included drug trafficking, prostitution, and extortion of legitimate businesses (Collins 1979, Hagedorn 1991, Jankowski 1991, Padilla 1992, Spergel 1995, Sullivan 1989, Taylor 1990, Venkatesh 2000). As many scholars have pointed out, perhaps the most important catalyst for this change in gang organizations was the trade of crack cocaine, which altered fundamentally the urban street gang and its modus operandi (see Venkatesh & Levitt 2000, Levitt & Venkatesh 2000). With their shift in orientation toward business (and away from petty delinquency and the protection of neighborhood turf), the gang’s primary goal was to control geographic areas to solidify their drug sales. This led to an increase in violence both

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within and between gangs. And, as a consequence, law enforcement shifted its approach. For example, beginning in Chicago (Padilla 1992), municipal police departments began to merge their gang and narcotics divisions to respond more effectively to the conflation of gangs and organized criminal entrepreneurship.


GANGS AND THE LAW In considering the past three decades of legal tactics to combat gangs, we can detect patterns of change and continuity. We should begin by noting that there have been several reconceptualizations of the city that have sought to move mainstream social science and public policy away from the human ecology paradigm (Zukin 1980). However, the most influential paradigm for understanding how cities work—and correlatively, how social behavior like gang activity operates within urban areas—remains the ecological paradigm. It is no surprise, therefore, that the strategies reviewed here share with their predecessors the need to work within the rich matrix of institutional and personal relationships at the community level. We refer to this, in the context of the law, as “localism” (Schragger 2001). To elaborate, the new legal tactics that are being used to combat gangs are overwhelmingly directed at empowering local entities that might already have some established capacity to exercise social control over young people. In this sense, they resemble the earlier social work approach, but the key difference is that the funds and leadership arise through legislation and the agencies (e.g., prosecutors, judges, police) that carry out the law. The key in this approach is to decentralize criminal justice interventions to deploy a greater share of resources (and accountability) to persons, groups, and institutions operating at the community level—i.e., to those stakeholders (including police, block clubs, storeowners, clergy, etc.) whose boundaries are in a particular geographically bounded community. One can contrast this to the highly centralized 258

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modality of antidelinquency in Europe—e.g., The Netherlands, Germany, and France.1 These legally driven initiatives have been motivated by a belief that gangs and drug trafficking (and drug-related violence) are synonymous: The popular catchphrase that arose in the early 1980s is the “gang and drug problem.” This perspective is not without some justification, as noted above (Skolnick 1994). The proliferation of drug sales among urban (and in some cases, suburban, exurban, and rural) gangs was cited by inner-city residents as often as were poverty and poor educational systems as a cause of the swell in gang violence. Perhaps the most common use of the law as a gang-fighting tool lies in the creation of legislative decrees, called injunctions, to limit the free association of street gangs in the public theaters of the neighborhood.2 These

1

Perhaps the most recognizable of the U.S. variants is the so-called community policing strategy in which law enforcement officials, residents, and neighborhood associations work collectively to identify problems and devise anticrime initiatives. The birth of community policing in major U.S. urban areas may be viewed in part as a willingness of municipal government to support residents’ desire to take back control of streets from street gangs (see Skogan 1986). For a review of community policing, see Muncie 2007, who explains that young people were increasingly governed “through the motifs of ‘crime and disorder’ (Simon & Burns 1997) in which an obsession with regulation—whether the regulation occurs through families, schools, or training programmes—encourages a generalised mistrust and fear of young people.” The essay also reviews use of informal social control activities, wherein residents acted outside the police, as well as use of community courts, which were additional measures developed by locally based constituencies to combat gangs (Fagan 1993, Venkatesh 2006, Venkatesh & Murphy 2007).

2

These injunctions are based on the declaration of the gang as a public nuisance. A public nuisance, according to California Civil Code Section 4379, is anything that is “injurious to health. . .or is indecent or offensive to the senses, or an obstruction to the free use of property, or unlawfully obstructs the free passage or use, in the customary manner, or any. . .public park, square, street, or highway.” A prosecutor may apply for an injunction after first showing that a gang is a public nuisance. There are three steps that are usually followed in obtaining an injunction: (a) a temporary restraining order, in which the prosecutor makes a request directly to a judge and must prove that the gang is a public nuisance (typically the prosecuting officer produces statements made by the police and community members);


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include park areas, streets and streetcorners, playgrounds (in and outside of schools), alleyways, beachfronts, boardwalks, and so on. The State of California has been at the vanguard in this area, and many other states have attempted to replicate its policing strategies. In the 1980s, various California municipalities began to experiment with public nuisance laws as a means of combating the street gang. The objective was to combat gang crime by banishing gang members from public space. In 1987, for example, the City of Los Angeles passed the first gang injunction against the Playboy Gangster Crips. The injunction was seen as a creative method of providing the community with the tools to effectively combat gang crime locally. The media and police agencies represented the tactic as a success—e.g., they cited drops in major felonies and gang-related crime (Yoo 1994, p. 218). San Jose, Norwalk, Long Beach, San Francisco, and San Diego also put in place or attempted measures to ban gangs from public space. In 1988, the California legislature enacted the Street Terrorism Enforcement and Prevention Act (STEP) to prevent gang crime. Those individuals understood by law enforcement to be known and active gang members were prohibited from associating with other active gang members when the gathering was for purposes of carrying out a crime. STEP sought to disrupt patterns of gang association and activity at the root of gang crime, stating that “[a]ny person who actively participates in any criminal street gang with the knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists, in any felonious conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year.” It is worth noting that to bring about an indictment the act requires more than mere

(b) a preliminary injunction, in which the framework for the permanent injunction is established and put into play until the end of the trial; (c) the permanent injunction, which is the result of a trial in which the prosecution is successful.

association: Law enforcement must also prove knowledge of criminal activity and active participation. Subsequent attempts to limit free association of street gangs followed. From 1992 to 1994 there were seven injunctions obtained in California: People ex rel. Gallo v. Carlos Acuna, People ex rel. City Attorney v. Avalos, People ex rel. Fletcher v. Acosta, People v. Blythe Street Gang, People ex rel. Jones v. Amaya, City of Norwalk v. Orange Street Locos, and People v. “B” Street Boys. Several behaviors were specifically prohibited, including association with other gang members, forced entry (in many cases gang members demanded or forced entry into residents’ homes to elude arrest), wearing and using gang signs and clothing, use of cell phones and beepers (to promote gang business), local movement (to prevent members from eluding arrest), and harassment of residents, and some cities also instituted adult curfews. Astvasadoorian (1998) claims a significant impact for neighborhoods with antigang injunctions: “[C]rime has consistently decreased where these injunctions have been issued” (see Astvasadoorian 1998 for statistics and cities). But others claim that this effect is temporary and comes at the expense of civil liberties (Stewart 1998, Werdegar 1999). Chicago and the State of Illinois were also at the forefront of the development of legal strategies aimed at combating gangs (as noted, Chicago had already merged its narcotics and gang divisions, an act that laid the groundwork for cooperation between police and federal officials interested in breaking up the street gang as an organized criminal unit). Toward the end of the 1980s, Chicago’s inner-city communities— many of which were disproportionately poor and African American—became deleteriously affected by gang violence, including drive-by shootings, open-air drug dealing, extortion, and fighting (see Venkatesh & Levitt 2000). Neighborhood groups pressed the city council to come up with effective legislation that could curb gang activity. www.annualreviews.org • Gangs and the Law

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Negotiations between block clubs, churches, youth centers, schools, etc., and the mayor and city council officials eventually led to the 1992 Chicago’s Gangs Congregation Ordinance. The purpose of the ordinance was to prevent gang members from congregating in public areas before they moved on to more serious crimes (as a result of their association in public). As Schragger (2001) points out, Chicago police did not exercise surveillance over the entire city looking for gang members, but instead they targeted particular areas (blocks, parks, etc.) that they felt were saturated with dangerous street gang activity—i.e., they created “no-gang loitering areas.” Police would first warn the suspected individual gang members; if the group did not leave the area in question, law enforcement would proceed to make an arrest. The Supreme Court struck down the ordinance in City of Chicago v. Morales (1999) (hereafter referred to as Morales). There is much disagreement about the effectiveness of Chicago’s antigang strategy, and a study of the key debates (along with efforts in California at the same time) points to the central issues that arise when the law is used to combat gangs (cf. Smith 2000). Critics of Chicago’s use of this antiloitering or quality-of-life measure suggested that police officers would target African Americans disproportionately because the information regarding known gang members was highly incomplete; in their efforts to target known areas of gang activity, law enforcement was disproportionately moving into minority areas when the statistics did not necessarily provide justification for them to do so (Stewart 1998, Boga 1993). Supporters, in contrast, believed that law enforcement finally had a tool to combat gang activity; they also pointed out that the ordinance was different from previous antiloitering ordinances owing to the limits placed on police discretion (Astvasadoorian 1998, Kennedy 1997; see also Livingston 1999). Other important legal tools arose in the 1980s and 1990s, such as increased criminal


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penalties for gang activity (including heightened penalties for gang activity occurring near schools), sweeps,3 juvenile curfews (see Harvard Law Review 1994), relaxed standards for admission of evidence of gang membership, tougher defense tactics in search and seizure situations such as the “no-knock narcotics search warrant” (see Allegro 1989), and public nuisance laws. However, measures such as these had minimal impact on gang activity unless they worked in conjunction with the enjoining of gangs through public nuisance laws, which was by far the most widespread measure. Attacking gangs via protecting public space was innovative in part because nuisance and quality-of-life statutes called on provisions in civil procedure instead of criminal law (this had several important consequences for defendants; for example, there was no need to prove guilt beyond a reasonable doubt and no requirement for either a trial jury or for defense counsel). Municipal law enforcement tended to be at the forefront of efforts to prevent gangs from occupying public space. When federal agencies intervened, they too turned to the law for antigang prevention efforts, but they sought to apply federal racketeering statutes that approached the street gang as an organized criminal enterprise. In its original intent, the RICO (Racketeer Influenced and Corrupt Organizations) statute was meant to address

3

In 1994, the Chicago Housing Authority (CHA) created the Operation Clean Sweep program. This antigang and crime control strategy rested on the use of surprise searches of public housing apartments. The use of so-called sweeps received attention because law enforcement officials did not obtain warrants before searching individual homes for contraband. To avoid potential legal issues surrounding violation of Miranda protections, the CHA used its own private police force—instead of public law enforcement officers— to carry out the constitutionally questionable strategy. The procedure brought about immediate criticism from civil rights advocates who argued that the constitutional rights of the poor were being trampled upon. Five thousand residents signed a petition that they supported the use of the sweeps to enforce law and order. In April 1994, a federal district court in northern Illinois issued a ruling that the sweeps were unconstitutional and so banned the use of sweeps.


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legitimate businesses that had been infiltrated by criminality (Atkinson 1978). However, in the past few decades it has been used to address organized crime and gang activity (for detailed discussion, see Lynch 1987, Ploscowe 1963, Bonney 1993). Decker et al. (1998) have investigated to what extent the street gang is becoming part of organized crime, with results that vary according to the gang and geographic location. To invoke the RICO statutes, prosecutors must demonstrate that the gang is a collective enterprise intent on promoting economic gain and that there is criminal activity furthered by this enterprise. The problems with this method include determining who is a gang member and defining precisely the nature and mission of gang activity (see Needle & Stapleton 1983). Also, the preventative benefits seem to arise after the gang has attained a fairly substantial degree of organization—i.e., the legislation does not provide tremendous support for small-scale gangs even if they are oriented toward commercial pursuits (Goldstein 1990, Sheldon et al. 1997, Skolnick 1994, Walker 1994). It is the so-called “broken windows” perspective that provides the theoretical background for antigang injunctions (Wilson & Kelling 1982, Kelling & Coles 1996). In 1982, James Wilson and George Kelling published an article in Atlantic Monthly that offered a new set of explanations for the causes of neighborhood crime. Wilson & Kelling divide urban residents into “law-abiding citizens” and “disreputables,” a position similar to contemporary arguments by Kennedy (1997) and Anderson (1999), who distinguish between “street” and “decent” families. Wilson & Kelling tied social disorder together with physical disorder; the simple version is that a window left broken and unrepaired sends a signal of diminished collective care for the neighborhood, which makes the area a petri dish for criminals who believe that few locals will stop them in their efforts. The patterns are cyclical in that “untended behavior leads to the breakdown of social controls” (Wilson & Kelling 1982), which then leads to increased

atomization of community members. In the end, the community becomes “vulnerable to criminal invasion” (Wilson & Kelling 1982). An example of this thesis may be found in Glazer’s (1997) discussion of graffiti. Glazer writes that “the proliferation of graffiti, even when not obscene, confronts the subway rider with the inescapable knowledge that the environment he must endure for an hour or more a day is uncontrolled and uncontrollable, and that anyone can invade it to do whatever damage and mischief the mind suggests.”4 The initial empirical results supported the broken windows theory. In one systematic study based on 40 urban neighborhoods, Skogan (1990, pp. 18–20) found a causal link between disorder and crime. He writes, “Disorder not only sparks concern and fear of crime among neighborhood residents; it may actually increase the level of serious crime. Disorder erodes what control neighborhood residents can maintain over local events and conditions. It drives out those for whom stable community life is important, and discourages people with similar values from moving in. It threatens house prices and discourages investment. In short, disorder is an instrument of destabilization and decline” (Skogan 1990, p. 3).5,6 4

As a solution to increased neighborhood crime and disorder, Wilson & Kelling (1982) advocate such tactics as police foot patrol to increase contact and trust at the neighborhood level, which would thereby promote a sense of safety. The authors find that placement of police on foot patrol increased the perception of safety among residents. The crime rate (violent crime) did not decrease, but people felt safer. The authors argue that they were in fact safer, even though the crime rate did not decline.

5 More recent work by Sampson and colleagues (1997) has questioned the links of social and physical disorder, emphasizing instead the shared levels of trust and willingness to help one another that exist in a neighborhood—i.e., collective efficacy. In a 1995 survey in Chicago, Sampson demonstrated that this collective efficacy, defined as “social cohesion among neighbors combined with their willingness to intervene on behalf of the common good,” is linked to reduced violence (Sampson et al. 1997). The authors recognize the link between public disorder and small crime with the larger issue of violent crime; however, rather than emphasizing this causal link, Sampson posits at the center of the equation the community’s capacity to respond to low-order public disorder.

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The broken windows perspective was cited by critics as providing theoretical support for the use of gang abatement strategies that involve enjoining the street gang (Astvasadoorian 1998, Kennedy 1997, Wilson & Kelling 1982). According to this perspective, small signs of social disorder that are not directly of harm may nevertheless have a contributing impact on crime (see Schragger 2001 for a review). Thus, even seemingly insignificant incidents of disorderliness must be criminalized because this will create the perception of order and safety, which will then lead to decreases in the likelihood of criminal activity. To create this order, society must criminalize “disreputable” behavior (Wilson & Kelling 1982). As noted here, the most common tool of criminalization has been the enjoining of gangs by policing public space. The broken windows theory runs a fine line between encouraging more community social control and infringing upon civil liberties of gang members. Some critics have charged that the injunction gives police too much discretion in determining what behavior or people are disreputable (Stewart 1998). Wilson & Kelling (1982) have countered this criticism by suggesting that it is possible to train police in proper procedure, but this argument is not developed in any meaningful way. They write that the criminalization of such behavior “exist[s] not because society wants judges to punish vagrants or drunks, but because it wants an officer to have the legal tools to remove undesirable persons from a neighborhood when informal efforts to preserve order in the streets have failed” (Wilson & Kelling 1982). We can point to other theoretical justifications for the use of civil injunctions as a means to curb gang activity (Kahan 1998). Economic analyses of criminal behavior must take into account the values of individuals


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A study conducted by Harcourt (1998) reviews the work of Skogan and Sampson and finds that Harcourt’s own data in New York City do not support Skogan’s claim that reducing disorder deters more serious crime.

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and communities that produce the behavior. In other words, one must understand the social meaning that individuals attach to gang membership, whether they are affiliated with the gang or simply tolerate their presence in the neighborhood. By looking at differential levels of interest in gang membership and willingness to accept high gang activity, this perspective attempts to understand why some communities have much more gang crime than others (Horowitz 1987; Kahan 1998, p. 613). This theory moves us away from strategies like so-called crackdowns in which heightened policing is used to break up the gang organization—the use of tactical units, for example, is not favored because it reinforces the attraction of gang membership for young people and adds strength to the meaning of gang behavior for youth (Kahan 1998, p. 614). Instead, the key to combating gang activity lies in the eradication of the avenues through which gangs disseminate information about themselves and attract other youth. One method is to curb gang interaction through gang loitering laws and youth curfews that limit the public behavior of street gangs. These interventions act on the principle that gangs impart much of their power through how they are perceived by community members. A related perspective on social meaning puts into relief the difference between the community’s norms and shared understandings of crime and social order and those of the wider society (Meares & Kahan 1998b). In this view, a representative body of residents and organizations may legitimately suspend certain protected privileges, allow greater police discretion than is publicly accepted, and otherwise act in contradistinction to prevailing social norms. Here, the primary debate has been around the issue of rights: Do communities have the capacity to define social rights based on their own norms, when these rights may contradict those protected by the general laws of the land (Alschuler & Schulhofer 1998, Meares & Kahan 1998a)? There is extensive research documenting the existence of

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differential norms regarding law and order, particularly among disadvantaged and/or minority communities (Anderson 1999, Meares 1998, Muncie 2007, Jankowski 1991, Pattillo 1999, Suttles 1968, Venkatesh & Murphy 2007, Venkatesh 2000). However, these studies have not informed the debate on the need to bend the law in order to adhere to local norms for conduct.

Debating Injunctions There has been some legal support for the use of antigang injunctions, such as those that prohibit association of gang members in public space. This view is primarily illustrated by the 1997 California Supreme Court decision in People ex rel. Gallo v. Carlos Acuna upholding the constitutionality of the public nuisance laws enjoining gangs. The court (hereafter “Acuna court”) ruled that “acts or conduct which qualify as public nuisances are enjoinable as civil wrongs or prosecutable as criminal misdemeanors” (Astvasadoorian 1998). In the original complaint, the City of San Jose declared that the gang was a public nuisance and injurious to residents’ health and senses (Acuna 1997, 14 Cal.4th at 1103). The California Court of Appeal struck down 15 of the 24 provisions owing to their unconstitutionally overbroad or vague nature that could allow for infringement on defendants’ First Amendment rights; however, the city appealed parts of this decision. In response, the Acuna court ruled that the injunction neither violated the First Amendment rights of the gang members nor was unconstitutionally overbroad or unduly vague. The Acuna court reviewed the history of antigang injunctions in California and ruled that such injunctions did not violate First Amendment freedom of association and were not vague or overbroad. According to the Acuna court, the injunction did not violate First Amendment rights because the relationships in question were not of an intimate or intrinsic nature and therefore are not protected by the First Amendment. Furthermore, the court ruled that the injunc-

tion was not overbroad as it applied only to the 38 gang members in question. Nor was it found to be overbroad in curbing the defendants’ right to association; the injunction only applied to a small area in Rocksprings, not to anywhere outside this location. Finally, as the First Amendment does not protect violence— a primary activity attributed to the gang members in Rocksprings—the court did not find the injunction to be overbroad in prohibiting activities of the gang members. Defendants argued that they could not be prohibited from associating with each other, particularly if there is no clear intent to perpetrate illegal acts. However, owing to the consistent— even daily—nature of the illegal and violent acts, the Acuna court deemed it unnecessary to demonstrate specific intent to commit a crime. The broken windows perspective played an important role in the arguments of those defending the Acuna decision. The notion that public association was sui generis a threat could be traced to the idea that reducing the attractiveness of the physical landscape— gangs made areas unsafe for public traffic— leads to greater crime (Astvasadoorian 1998). Once again, the ecological view of communities was brought into the legal terrain to defend a particular program of action to combat gangs. Critics responded to the Acuna decision with various arguments, most of which centered on the notion that such injunctions curbed free association as protected by the Constitution (Werdegar 1999, p. 411; Stewart 1998). For Werdegar and others (Poulos 1995, Boga 1993) there are both legal and practical reasons for ensuring that injunctions are not used to enjoin gang members, including the high margin of error in these injunctions. Specifically, it is simply too difficult to identify with any sufficient degree of certainty the gang membership status of individual occupants of a public space (Werdegar 1999, p. 416). Community members and police officers—especially those police who are not assigned to a regular beat and are therefore www.annualreviews.org • Gangs and the Law

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unfamiliar with the neighborhood and the locals—may not know which of the gang members is responsible for making the noise, causing the disturbance, or committing a certain crime. They may not always recognize the youth in question with a high level of assuredness. In other words, the injunction is potentially vague. This constitutional vagueness challenge is based on the right to due process in the Fifth and Fourteenth Amendments—the Fifth Amendment requires sufficient and clear warning of any prohibited behavior, and the Fourteenth Amendment requires that the law be enforced justly and equitably, avoiding arbitrariness and discrimination. In 1972, Papachristou v. City of Jacksonville struck down a vagrancy ordinance with the vagueness doctrine, setting a precedent that removed vagrancy ordinances from the books all across the country. A primary supporter of the Acuna decision, Deputy City Attorney of Los Angeles Raffy Astvasadoorian, challenged the critics who charge that such injunctions infringe upon First Amendment rights: “No rational person would assert that a group of people who conjointly and consistently violate the law have a constitutionally protected right to do so. In the context of crime prevention, and gang crime and violence in particular, this type of reasoning is utter nonsense” (Astvasadoorian 1998). Like Wilson & Kelling (1982), Astvasadoorian asserts that the nature of gang crime—in that it involves a group of people— renders it in a class of its own meriting special legal treatment. Another critique of public nuisance laws as a gang abatement strategy suggests that there is no need to develop entirely new legal tactics to combat gang crime. The search for innovation hides the fact that the solution lies in improved implementation of existing provisions. Boga (1993), for example, argues that existing law offers ample ammunition to combat gang crime, with no further need to invoke injunctions. “Nuisance abatement orders preventing gang members from congre-


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gating publicly operate on this [. . .] faulty principle. Rather than apply existing laws to punish illicit activities, they seek to criminalize all meetings by gang members regardless of their motivation” (Boga 1993, p. 11). Judge Lee Sarokin (1996, p. 381), a retired judge on the U.S. Circuit Court of Appeal, extended this position to develop the so-called brussels sprouts analogy: What did you do as a kid if you had brussels sprouts on the plate? You moved them around, spread them around to make it look as if there were less, but they were still there and someone in authority usually required you to deal with them. If you will forgive me for abusing this metaphor, we have three choices as I see it: (1) we can dump the brussels sprouts in the garbage, which is really what we have been doing all of these years; (2) we can spread them around, hide them under the mashed potatoes, and make it look like we are really dealing with the problem; or (3) we can deal with them, absorb them into ourselves and society, and make us all healthier.

Sarokin does not advocate the unbridled use of antiloitering initiatives, but he does believe that the basic proposition of broken windows theory is correct—i.e., that low-level crime and disorder foster more violent crime. He advocates rehabilitation of individuals, which harkens back to the social work strategy that was in vogue in the mid-twentieth century. Boga (1993) considers three acceptable methods of legally combating gang crime without resorting to the injunction based on the public nuisance law. The first is the use of California’s STEP Act, which creates the substantive offense of participation in a criminal street gang (see Boga 1993, p. 6). Secondly, for states that do not have such legislation, Boga cites the acceptable use of drug loitering ordinances. These laws only target such “gatherings that directly injure public health and safety” rather than the general prohibition of public congregation in abatement injunctions


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(Boga 1993, p. 6). Finally, Boga suggests using probation and parole systems to achieve the same goal as the public nuisance laws, which can be more unfair and unreliable. For Boga, the use of public nuisance laws is more of an effort to banish street gangs from public space than to combat crime. He writes that “by means of this civil remedy, cities are effectively banishing street gangs from the realm of public space” (Boga 1993, p. 7). Some have suggested that not only do antigang injunctions violate First Amendment rights, but they are also racist in their effects. Stewart (1998, p. 2251) draws explicit links between vagrancy laws and their use in controlling undesirable peoples, and the more recent use of public nuisance laws. In the Papachristou v. City of Jacksonville (1972) decision, vagrancy laws were said to perpetuate arbitrary enforcement of the law, which led to discrimination against certain unpopular groups. This decision was a landmark case for striking down vagrancy laws all over the country that unfairly targeted racialized/ethnic minority groups (Stewart 1998, p. 2258; also see Stuntz 1992). Stewart claims that antigang injunctions target minority groups in a similarly unfair fashion. Finally, the use of injunctions has been criticized because it allows police to exercise great discretion. In 1999, the Illinois Supreme Court (in the Morales decision) deemed Chicago’s gang loitering ordinance unconstitutional. In Justice Stevens’s opinion, the law was impermissibly vague in authorizing police to disperse gang members found loitering in public spaces (Morales 119 S.Ct. at 1861–62). A coalition of scholars, community groups, and law enforcement felt betrayed by this decision to invalidate the ordinance (see Roberts 1999). They did not believe that the police discretion was too great, and they felt that the ruling took away a powerful tool of communities to combat crime—the so-called realist interpretation is one in which practical considerations regarding crime control supersede abstract considerations regarding civil rights (cf. Meares & Kahan 1998b). Some

portrayed the use of antiloitering ordinances as tame compared with more punitive measures that result in mass incarceration of minorities (Rosenthal 2000). In contrast, others argued that the ordinance would lead to arbitrary and discriminatory police action and represented a breach of constitutional rights (cf. Werdegar 1999, Stewart 1998). Both supporters and critics in Illinois had hoped that the Morales decision would help them make sense of the host of laws and ordinances—at the city and state level—that had been passed regarding the scope of police discretion and the protection of civil liberties. In this respect, Morales offered little help.

Alternatives to Legal Tactics Researchers suggest that legal tactics and sanctions will be only minimally useful because they fail to take into account the role of the street gang in the lives of youth. Boga calls for the need to provide alternative communal associations, so that youth do not believe the gang to be the only game in town. Researchers have suggested that gangs provide emotional and social supports and services, which could be provided more effectively by communitybased organizations (Brotherton & Barrios 2003; Jankowsi 1991; Pattillo 1998; Spergel 1990, 1995). Some of these researchers argue for increased funding of local organizations that outreach to troubled youth [ Jankowski (1991) revives the need for social worker indoctrination, in which trained case workers intervene in the lives of gang members and reconnect them with mainstream institutions]. Mayer (1993) argues that current antigang initiatives are driven by fear and are not appropriate responses to gang violence and crimes. He cites a faulty definition of youth gangs as the root of the misdirected efforts. For example, many define a criminal street gang as an organization, association, or group engaging in criminal acts such as assault, robbery, homicide, and/or drug trafficking. Other characteristics include a common name or identifying symbol and a sense of group identity. www.annualreviews.org • Gangs and the Law

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However, counter to this well-accepted definition, youth gangs are not necessarily characterized by a convergence of strong social ties, criminal purpose, and outward manifestations of gang consciousness. Mayer (1993) argues that incorporation of these fallacies into current antigang initiatives undermines their effectiveness and leads to abuse of their power. Others have suggested that the contemporary street gang is really a commercial enterprise (cf. Bourgois 1996; Jankowski 1991; Padilla 1992; Venkatesh 1997, 2000). These researchers seek to add greater historical specificity to the popular conception of the gang as a group of petty delinquent teenagers. In this framework, prevention and intervention efforts would have to include provisions for individual members to earn income outside the street gang—and, of course, preferably in the legitimate mainstream economic market. This could take several forms: e.g., a jobs program could target older adults who remain in gangs to supplement income by offering them other meaningful employment; a community-based vocational training program could increase the human capital of individuals. Meares (1998) moves in a different direction by suggesting that social scientists return to social disorganization theory when constructing interventions. An individual’s propensity to commit a crime is mediated by the community structures in which they live, she suggests, and less by individual factors such as unemployment and poverty. A focus on individual incentive to break the law should be replaced with a focus on the characteristics of communities that help support criminal activity. Meares emphasizes the evolution from Shaw & McKay’s (1942) disorganizational theory to modern-day theorists’ “differential organizational theory” (Meares 1998, p. 195). For Meares, the “(loitering) ordinances that empower police officers to assist residents directly in community guardianship are an example of law enforcement strategies that could improve community social organization” (p. 223). Like Livingston, Meares ar-


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gues that ordinances are a feasible alternative to other, stigmatizing legal options: “[U]nlike the reverse sting procedure, curfews and loitering laws do not have redistributive properties that directly contribute to the perception of poor minorities that the criminal justice scales are being ‘righted.’ They focus instead on all in poor communities, regardless of race. They remove signs of disorder, making room for the community leaders to establish order” (Meares 1998, p. 223).

CONCLUSION This article has reviewed a recent development in social organization of street gang activity, namely a shift in the societal strategies to combat neighborhood gangs. Unlike earlier historical periods, in the past three decades law enforcement officials, in conjunction with community stakeholders, have turned to legal tactics as a mechanism for gang prevention and intervention. Two assumptions lie at the core of these strategies: First, effective antigang strategies should be local (cf. Hanson 1970, Frug 1993). That is, individuals, groups, and community associations can play an important role in legal tactics to fight gangs, whereas in the past these local entities were largely relegated to the sphere of counseling, social work, and nonpunitive initiatives. Second, gangs need to operate in public to survive; take away their freedom of association and one dramatically reduces the likelihood that gangs will be able to function. These two premises have resulted in varying forms of social intervention. The most widespread tactic has been to utilize legal injunctions to deter a gang presence in public areas of a neighborhood—e.g., street corners, parks, school playgrounds. City and state governments in particular have sought to prohibit street gang members from meeting with each other, with the assumption that the ostensible purpose of such convenings is to plan and carry out the gang’s criminal activities. These injunctions have had varying


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success, and to date there is no systematic social science research that has evaluated the impact of antiloitering and related injunctions on gang-related crime. Instead, the effects of the injunctions have been to raise wider issues concerning the rights of poor people to control how their neighborhoods are protected and how laws are enforced. As important, these injunctions have not always survived constitutional challenges—the Morales decision in Chicago presents the clearest case of a court rescinding injunctions on the basis of violations of rights to freedom of association (in addition to related issues such as vagueness, limited checks on police discretion, and differential impact on minority groups). The so-called philosophy of “localism” (Schragger 2001) that undergirds these legal tactics has led to the development of other antigang initiatives, but research is similarly equivocal. Community policing, which began forcefully in Chicago, has been replicated throughout American cities, but there is no definitive assessment to date on the effectiveness of this enforcement strategy for the prevention of gang activity. Vigils and other take-back-the-night strategies, in which residents harass gang members and attempt to make them uncomfortable occupying public spaces, are similarly ineffective for crime prevention, although they may have secondary effects such as promoting feelings of solidar-

ity among community residents. And informal social control strategies, whether vigilante justice movements (Venkatesh 2006) or statesanctioned community courts, have not been subjected to any systematic evaluation [see Fagan & Malkin (2003) for a study on a community justice center in Red Hook, Brooklyn; Merry (1993) has reviewed the literature on community mediation in the United States]. One thing is certain: The formative understanding of the city as a social ecology of distinct and separate communities, in which social institutions and residents are largely attuned to activity occurring within their boundaries, remains at the heart of social policy formulation with respect to youth delinquency. Broken windows theory is one of the more recent manifestations of the notion that highly localized tactics (e.g., fighting graffiti and vandalism, reappropriating public space) are preferred in controlling antisocial youth behavior. Despite the effectiveness of federally driven initiatives that have dismantled the gang, such as the use of RICO-based strategies, the preference among law enforcement, policy makers, and the general public is to allow residents and collective actors at the community level, such as police and block club presidents, to take a greater role in gang intervention. More research will be needed to determine whether these new efforts have attained their objectives in keeping families and communities safer.


LITERATURE CITED Allegro DB. 1989. Police tactics, drug trafficking, and gang violence: why the no-knock warrant is an idea whose time has come. Notre Dame Law Rev. 64:552–70 Alschuler AW, Schulhofer SJ. 1998. Antiquated procedures or bedrock rights? A response to Professors Meares and Kahan. Univ. Chicago Leg. Forum 1998:215–44 Anderson E. 1999. Code of the Street: Decency, Violence, and the Moral Life of the Inner City. New York: Norton. 352 pp. www.annualreviews.org • Gangs and the Law

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Astvasadoorian R. 1998. California’s two-prong attack against gang crime and violence: the Street Terrorism Enforcement and Prevention Act and anti-gang injunctions. J. Juvenile Law 19:272–300 Atkinson J. 1978. “Racketeer Influenced and Corrupt Organizations,” 18 U.S.C. §§ 1961–68: broadest of the federal criminal statutes. J. Crim. Law Criminol. 69(1):1–18 Block CR, Christakos A, Jacob A, Przybylski R. 1996. Street Gangs and Crime: Patterns and Trends in Chicago. Research Bulletin. Chicago: Ill. Crim. Justice Inf. Auth. Boga TR. 1993. Turf wars: street gangs, local governments, and the battle for public space. Harvard Civil Rights-Civil Lib. Law Rev. 29:477–504 Bonney LS. 1993. The prosecution of sophisticated urban street gangs: a proper application of RICO. Catholic Univ. Law Rev. 42:579–614 Bourgois P. 1996. In Search of Respect: Selling Crack in El Barrio. New York: Cambridge Univ. Press. 407 pp. Brotherton D, Barrios L. 2003. Between Black and Gold: The Street Politics of the Almighty Latin King and Queen Nation. New York: Columbia Univ. Press City of Chicago v. Morales et al., 527 U.S. 41 (1999) Collins HC. 1979. Street Gangs: Profiles for Police. New York: NY City Police Dep. Coughlin BC, Venkatesh SA. 2003. The urban street gang after 1970. Annu. Rev. Sociol. 29:41– 64 Decker SH, Bynum T, Weisel D. 1998. A tale of two cities: gangs as organized community groups. Justice Q. 15:395–426 Fagan J. 1993. The political economy of drug dealing among urban gangs. In Drugs and the Community: Involving Community Residents in Combatting the Sale of Illegal Drugs, ed. RC Davis, AJ Lurigio, SP Rosenbaum, pp. 19–54. Springfield, IL: Thomas Fagan J, Malkin V. 2003. Theorizing community justice through community courts. Fordham Urban Law J. 30:857–953 Frug J. 1993. Decentering decentralization. Univ. Chicago Law Rev. 60:253 Glazer N. 1997. Unsolved mysteries. New Republic. June 23, p. 29 Goldstein H. 1990. Problem-Oriented Policing. New York: McGraw Hill. 206 pp. Hagedorn JM. 1991. Gangs, neighborhoods, and public policy. Soc. Probl. 38(4):529–42 Hanson R. 1970. Toward a new urban democracy: metropolitan consolidation and decentralization. Georgia Law J. 58:863 Harcourt BE. 1998. Reflecting on the subject: a critique of the social influence conception of deterrence, the broken windows theory, and order-maintenance policing New York style. Mich. Law Rev. 97(2):291–389 Harvard Law Review. 1994. Juvenile curfews and gang violence: exiled on Main Street. Harvard Law Rev. 107(7):1693–710 Horowitz R. 1987. Community tolerance of gang violence. Soc. Probl. 34(5):437–50 Jankowski MS. 1991. Islands in the Street: Gangs and American Urban Society. Berkeley: Univ. Calif. Press. 382 pp. Kahan DM. 1998. Social meaning and the economic analysis of crime. J. Leg. Stud. 27(2):609– 22 Kelling GL, Coles CM. 1996. Fixing Broken Windows: Restoring Order and Reducing Crime in our Communities. New York: Free Press. 319 pp. Kennedy R. 1997. Race, Crime, and the Law. New York: Pantheon Books. 538 pp. Klein MW. 1995. The American Street Gang, Its Nature, Prevalence, and Control. New York: Oxford Univ. Press. 270 pp. Levitt SD, Venkatesh SA. 2000. An economic analysis of a drug selling gang’s finances. Q. J. Econ. 115(3):755–89


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Livingston D. 1999. Gang loitering, the court, and some realism about police patrol. Supreme Court Rev. 1999:141–202 Lynch GE. 1987. RICO: the crime of being a criminal, Parts I & II. Columbia Law Rev. 87:661– 764 Mayer JJ. 1993. Individual moral responsibility. Wake Forest Law Rev. 28(4):943–86 Meares TL. 1998. Social organization and drug law enforcement. Am. Crim. Law Rev. 35(2):191–228 Meares TL, Kahan DM. 1998a. Black, white, and gray: a response to Alschuler and Schulhofer. Univ. Chicago Leg. Forum 1998:245–60 Meares TL, Kahan DM. 1998b. The wages of antiquated procedural thinking: a critique of Chicago v. Morales. Univ. Chicago Leg. Forum 1998:197 Merry S. 1993. Sorting out popular justice. In The Possibility of Popular Justice: A Case Study of Community Mediation in the United States, ed. SE Merry, N Milner, pp. 31–66. Ann Arbor: Univ. Mich. Press Muncie J. 2007. Youth justice and the governance of young people: global, international, national, and local contexts. In Youth, Globalization, and the Law, ed. SA Venkatesh, R Kassimir, pp. 17–60. Stanford, CA: Stanford Univ. Press. 352 pp. Needle J, Stapleton WV. 1983. Handling of Youth Gangs. Reports of the National Juvenile Justice Assessment Centers. Washington, DC: US Dep. Justice Padilla F. 1992. The Gang as an American Enterprise. New Brunswick, NJ: Rutgers Univ. Press Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) Pattillo ME. 1998. Sweet mothers and gangbangers: managing crime in a black middle-class neighborhood. Soc. Forces 76(3):747–74 Pattillo ME. 1999. Black Picket Fences: Privilege and Peril among the Black Middle Class. Chicago: Chicago Univ. Press. 283 pp. People ex rel. Gallo v. Carlos Acuna et al., 14 Cal.4th 1090 (1997) Ploscowe M. 1963. New approaches to the control of organized crime. Ann. Am. Acad. Polit. Soc. Sci. 347:74–81 Poulos P. 1995. Chicago’s ban on gang loitering: making sense of vagueness and overbreadth in loitering laws. Calif. Law Rev. 83(1):379–418 Rieder J. 1985. Canarsie. Cambridge, MA: Harvard Univ. Press. 290 pp. Roberts DE. 1999. Race, vagueness, and the social meaning of order-maintenance policing. J. Crim. Law Criminol. 89(3):775–836 Rosenthal L. 2000. Gang loitering and race. J. Crim. Law Criminol. 91(1):99–160 Sampson R, Raudenbush SW, Earls F. 1997. Neighborhoods and violent crime: a multilevel study of collective efficacy. Science 277:918–24 Sarokin HL. 1996. Civil rights or nuisance: How should the judge-citizen view a vagrant’s behavior? Mich. Law Policy Rev. 1:379–82 Schragger RC. 2001. The limits of localism: gang anti-loitering law and local government. Mich. Law Rev. 100(2):371–472 Shaw C, McKay H. 1942. Juvenile Delinquency and Urban Areas. Chicago: Univ. Chicago Press Sheldon RG, Tracy SK, Brown WB. 1997. Youth Gangs in American Society. Belmont, CA: Wadsworth. 360 pp. Skogan W. 1986. Fear of crime and neighborhood change. Crime Justice 8:203–39 Skogan W. 1990. Disorder and Decline: Crime and the Spiral Decay in American Neighborhoods. New York: Free Press. 218 pp. Skolnick JH. 1994. Justice Without Trial: Law Enforcement in Democratic Society. New York: Macmillan. 312 pp. www.annualreviews.org • Gangs and the Law

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Simon D, Burns E. 1997. The Corner: A Year in the Life of an Inner City Neighborhood. New York: Broadway Books. 560 pp. Smith S. 2000. Civil banishment of gang members. Univ. Chicago Law Rev. 67:1461 Spergel IA. 1990. Youth gangs: continuity and change. Crime Justice 12:171–276 Spergel IA. 1995. The Youth Gang Problem: A Community Approach. New York: Oxford Univ. Press. 346 pp. Stewart G. 1998. Black codes and broken windows. Yale Law J. 107(7):2249–80 Stuntz WJ. 1992. Implicit bargains, government power, and the Fourth Amendment. Stanford Law Rev. 44(3):553–91 Sullivan M. 1989. “Getting Paid”: Youth, Crime, and Work in the Inner City. Ithaca, NY: Cornell Univ. Press. 275 pp. Suttles GD. 1968. Social Order of the Slum: Ethnicity and Territory in the Inner City. Chicago: Univ. Chicago Press. 243 pp. Taylor CS. 1990. Dangerous Society. East Lansing: Mich. State Univ. Press Thrasher FM. 1963 (1927). The Gang: A Study of 1313 Gangs in Chicago. Chicago: Univ. Chicago Press. 388 pp. Venkatesh SA. 1997. The social organization of street gang activity. Am. J. Sociol. 103(1):82–111 Venkatesh SA. 1999. Community-based interventions into street gang activity. J. Community Psychol. 27(5):551–67 Venkatesh SA. 2000. American Project: The Rise and Fall of a Modern Ghetto. Cambridge, MA: Harvard Univ. Press. 360 pp. Venkatesh SA. 2001. Chicago’s pragmatic planners: American sociology and the myth of community. Soc. Sci. Hist. 25(2):275–317 Venkatesh SA. 2006. Off the Books. Cambridge, MA: Harvard Univ. Press. 426 pp. Venkatesh SA, Levitt SD. 2000. Are we a family or a business? Theory Soc. 29(4):427–62 Venkatesh SA, Murphy AK. 2007. Policing ourselves: law and order in the American ghetto. In Youth, Globalization, and the Law, ed. SA Venkatesh, R Kassimir, pp. 124–62. Stanford, CA: Stanford University Press. 352 pp. Walker S. 1994. Sense and Nonsense about Crime and Drugs. Belmont, CA: Wadsworth. 320 pp. Werdegar MM. 1999. Enjoining the constitution. Stanford Law Rev. 51(2):409–45 Wilson JQ, Kelling GL. 1982. Broken windows. Atlantic Mon. 249(3):29–38 Yoo CS. 1994. The constitutionality of enjoining street gangs as public nuisances. Northwest. Univ. Law Rev. 89:212–67 Zukin S. 1980. A decade of new urban sociology. Theory Soc. 9:575–601


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Punishment Beyond the Legal Offender Megan Comfort Center for AIDS Prevention Studies, University of California, San Francisco, California 94105; email: [email protected]


Key Words


family, incarceration, public health, social welfare, unintended consequences


Abstract In the United States, lawbreakers are treated as social isolates, and the sentences imposed upon them are conceived of as affecting a discrete individual. However, people who commit or are suspected of committing crimes are generally embedded in kinship webs and social networks that draw others into the ambit of the state’s punishment apparatus. Through their association with someone convicted of a crime, legally innocent people have firsthand and often intense contact with criminal justice authorities and correctional facilities, they experience variants of the direct and indirect consequences of incarceration, and they are confronted by the paradox of a penal state that has become the primary distributor of social services for the poor in the United States. Collectively, studies investigating punishment beyond the offender contribute to the understanding of the wide and multi-faceted impact of punitive sanctions and spotlight the importance of considering this full range of repercussions when evaluating the scope of the nation’s policing, judicial, and correctional policies.

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INTRODUCTION


Throughout the processes of arrest, conviction, sentencing, and sanction, the criminal justice system in the United States and many Western countries is narrowly focused on the accused as a free-standing actor and target for reprisal. Indeed, standard means of modernday punishment, such as probation, parole, and incarceration, are broadly conceived of as state measures imposed on an individual offender. Recently, however, researchers in law, sociology, public policy, public health, and other disciplines have begun to document the profound transformative effects that penalties ostensibly meted out to individuals have on families, intimates, and neighbors. These studies are mapping out the terrain of punishment beyond the offender, the ways in which legally innocent people are made to alter their behavior, reorient their expectations, suffer changes in their health, and otherwise experience the social and economic repercussions of punitive surveillance, confinement, and control. Ten years ago, a review of academic publications on punishment beyond the legal offender could have comfortably encompassed the near totality of work available in English. Although exploratory literature on family members of inmates dates to the 1960s (with scattered working papers and theses appearing a few decades earlier; see for example Bloodgood 1928, Sacks 1938), publications remained scarce and largely underdeveloped theoretically until the turn of the century. One would have expected a more robust beginning given the thoroughness of the groundbreaking text in the field, Morris’s Prisoners and Their Families (1965). This policy-oriented study based on interviews with 588 wives of male inmates in Great Britain examined how family responses to incarceration fluctuate according to an array of interpersonal, cultural, economic, and offense-related factors. Using these variables, Morris constructed a typology with eight situations predicting whether

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marital relationships would be strained or strengthened by a husband’s imprisonment, and she made specific recommendations for the “treatment of family problems as a whole” by prison and social services (Morris 1965, p. 10). Yet rather than inspiring derived studies, development of her analytical framework, or implementation of her suggested policy reforms, Morris’s substantial contribution lay essentially untouched by the sparse and conceptually isolated publications of the next three decades, which appeared chiefly in psychology, social work, criminology, and corrections (see, for example, Gibbs 1971, Sack et al. 1976, Bakker et al. 1978, Daniel & Barrett 1981, Goetting 1982, Hinds 1982, Hannon et al. 1984, Lowenstein 1986). A more integrated and theory-driven body of literature arose only as the U.S. carceral population neared the two-million mark at the end of the 1990s. The national incarceration rate, which previously had hovered around a stable mean of 150 inmates per 100,000 U.S. residents for half a century, began a spectacular and now infamous upward surge in the mid-1970s. By 2000, 702 of every 100,000 U.S. residents were behind bars, a rate six to twelve times higher than that of western European countries (Tonry 2001). Dramatic differences in the prevalence of incarceration among ethnic groups were prominent at the dawn of the new millennium: 13.1% of non-Hispanic black males between the ages of 25 and 29 were in prison or jail in 2000, compared with 4.1% of Hispanic males and 1.7% of white males in the same age group (Beck & Karberg 2001). Education levels further influenced one’s likelihood of incarceration: Pettit & Western (2004, pp. 160–61) found that nearly 60% of African American men born between 1965 and 1969 who did not finish high school had been to prison at least once by 1999, compared with 18% of those with a highschool diploma or GED and with 5% of those


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with a college education (see also Western 2006).1 The massive expansion of the penal state and the concentration of its impact on specific populations saw a concurrent expansion of research in areas related to this new incarnation of American exceptionalism. Often prohibited by correctional administrators from undertaking studies of life inside jails and prisons or hampered in such attempts by institutional review boards (Wacquant 2002, Haggerty 2004), scholars turned their lenses to the multitude of deleterious effects of incarceration on the employment prospects (Western et al. 2002), health status (Hammett et al. 2002), housing options (Rubinstein & Mukamal 2002), and other critical life-chance indicators for people with a criminal record. As they did so, the social and kinship networks of inmates, probationers, and parolees came into focus: No longer simply characterized as lone wolves in orange jumpsuits, the seven million people under correctional control at any given point each year were discovered to come home to mothers, conceive children with partners, pool resources with friends, and mingle with neighbors. Furthermore, regardless of their own legal status, the lives of these relatives, intimates, and acquaintances were penetrated by the criminal justice system as they witnessed arrests, offered material and moral support to inmates, or received ex-convicts into their homes and onto their streets. In this review, I chart the scope of the recent influx of interdisciplinary research conducted in the United States in this developing field, with the aim of enriching the reader’s conception of the manifold ways people who are not the main targets of the criminal jus-

1

It is important to draw the distinction here between prison and jail: People who are sentenced to more than one year of incarceration typically are sent to prison to serve their time, whereas jails hold people awaiting sentencing and those sentenced to less than one year of detention. Pettit & Western’s (2004) calculation does not include men’s jail experience; therefore, the prevalence of incarceration, as opposed to imprisonment, among this group would be expected to be even higher.

tice system nonetheless experience the effects of its disciplinary actions. Although it is common for social institutions and processes to have a secondary impact on those one step removed from their clientele (for example, a gravely ill person’s family is deeply affected by a hospital’s routines, policies, and personnel), the criminal justice system stands out for its general disregard of the likelihood of such reverberations occurring and its near total lack of infrastructure for responding to them when they do arise. Furthermore, the criminal justice system is distinct in that it is charged with exacting control and distributing punishment, and hence a spillover effect is inherently more corrosive to bystanders than that of an institutional process concerned with providing a social good, such as medical treatment or education. To elucidate the breadth of the repercussions experienced beyond the offender and to stimulate new approaches to thinking about them, I use an organizational framework for this review that differs from the block categories of “impact on children and families” and “impact on communities” that have begun to typify the literature (Mauer & ChesneyLind 2002, Travis & Waul 2003, Pattillo et al. 2004). I begin by considering the punitive effects felt by the family, friends, and neighbors of lawbreakers through their experiences of direct contact with criminal justice authorities and correctional facilities. Next, I examine how the unintended consequences of incarceration stretch beyond the inmate, affecting the health, economic opportunities, and social capital of surrounding kin and residents. And finally, I discuss the paradoxical effects that transpire when the criminal justice system becomes the most powerful social institution consistently available to poor Americans and by default assumes myriad functions previously handled by the social wing of the state. By seeking to untangle and clarify these three types of consequences, this approach emphasizes the wide range of obvious, subtle, and counterintuitive ways that state mechanisms organized to punish offenders profoundly www.annualreviews.org • Punishment Beyond the Legal Offender

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influence the lives of people legally outside of their purview.2

CONTEXTUALIZING THE LITERATURE


I offer a few brief points to add context to this body of literature. First, the usual caveats and cautions apply regarding generalizability, attribution of causality, and the risk of selection effects. In this relatively young field, longitudinal survey research designed to study the relatives, social intimates, or neighbors of offenders is scarce, rendering it difficult to isolate causal relationships between variables. Similarly, qualitative studies often draw their samples of participants after the loved one’s arrest, complicating recollections of life before the criminal justice system’s intervention. In all forms of research, the marginalized socioeconomic status of the majority of people whose kin and associates are surveilled by the punitive wing of the state makes these populations especially vulnerable and thus subject to heightened concerns over the sensitivity of methods for eliciting personal information, particularly reports of illegal or stigmatized behavior. Next, it is instructive to assemble an overview of the number of people concerned by this phenomenon. Nationwide in 2005, law enforcement authorities carried out an estimated 14 million arrests for all offenses except traffic violations (FBI 2005: note that data are not available on the total number 2

By necessity, this review does not aim or claim to encompass all conceivable aspects of punishment beyond the legal offender. One area in particular not addressed here is the ramifications of incarceration on the political process through denial of eligibility to vote or hold office. For an exploration of how the disenfranchisement of ex-felons affects political representation and electoral outcomes, see Manza & Uggen (2006) and Hull (2006); Foster & Hagan (2007) provide a discussion of the impact of paternal incarceration on young adults’ political participation. Also outside the scope of this review are families of serious offenders’ experiences of feeling punished by social condemnation (see Condry 2007) and the resultant construction of an identity as the “other victims of crime” (Howarth & Rock 2000).

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of unique individuals arrested). That same year, there were 4.16 million probationers and 784,000 parolees under active supervision in the United States, as well as 2.18 million people confined in the country’s jails and prisons (Glaze & Bonczar 2006, Harrison & Beck 2006; this count excludes those held in juvenile facilities and police lockups). Males constituted 77% of those on probation, 88% of those on parole, 87% of jail detainees, and 93% of state and federal prisoners (Glaze & Bonczar 2006, Harrison & Beck 2006); females constituted the remaining percentage in each of these populations, with transgender people rarely if ever being accounted for in the data. An estimated 1.1 million jail and prison inmates in the United States are parents to 2.3 million children; 90% of these parents are fathers (Parke & Clarke-Stewart 2003, p. 191). In interviews for the 1997 Survey of Inmates in State and Federal Correctional Facilities, 46% of imprisoned parents reported living with their minor children prior to their arrest, with mothers being more likely than fathers to report having been a residential parent (64% compared with 44% for state prisoners and 84% compared with 55% for federal prisoners) (Mumola 2000; similar figures are not available for parents detained in jail). Analyzing data from two birth cohorts, Wildeman (2007) estimates that 1 in 5 black children and 1 in 40 white children born in 1990 experienced the imprisonment of a parent by age nine, meaning that “racial disparities in the risk of parental imprisonment are larger than racial disparities in imprisonment rates and the lifetime risk of imprisonment.” Wildeman also estimates that 43% of black children born in 1990 who had a parent who did not complete high school experienced parental imprisonment by their ninth birthday, underlining the emergence of parental imprisonment as “a historically novel form of childhood disadvantage for black children of low-education parents.” The 1997 Survey of Inmates in State and Federal Correctional Facilities documents that


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20% of prisoners are married (Mumola 2000), but considering that nearly three times that many male state prisoners report having minor children, it appears that marriage status is not a reliable indicator of the full scope of inmates’ romantic and sexual ties. Indeed, although marriage rates are particularly low among prisoners (Lopoo & Western 2005), various smaller-scale studies have found that upwards of 50% of men entering penitentiaries consider themselves to be in heterosexual relationships ( Jorgensen et al. 1986, Carlson & Cervera 1991b, Grinstead et al. 1999), with less being known about the relationship status of women, jail detainees, or inmates with same-sex partners. Altogether, although data are not systematically collected on the family relations, romantic ties, or close friendships of arrestees, probationers, parolees, and inmates, the existing figures indicate that at least several million and possibly tens of millions of people each year experience the intervention of the criminal justice system in their lives via close kin or associates.

DIRECT CONTACT WITH CRIMINAL JUSTICE AUTHORITIES AND CORRECTIONAL FACILITIES The direct actions and purposes of criminal justice authorities and institutions are centered on identifying, managing, confining, and disciplining wrongdoers. Police handcuff suspects and read them their Miranda rights. Correctional officers observe and regulate the behavior of inmates. Parole officers administer drug tests to and verify information about those in their caseload. Yet often the family, friends, or neighbors of lawbreakers are present when these activities occur, and the authorities then extend their surveillance and control to the other occupants of the supervised environment, whether they are a suspect’s housemates, a jail inmate’s visitors, a parolee’s car passengers, or residents of a patrolled neighborhood. In these instances, people who have no warrant out for their own

arrest, face no criminal charges, and receive no sentence for confinement or mandate of postrelease supervision undergo conditions very similar to those of people charged with or convicted of a criminal offense. Although the duration of the incident may be shorter or the legal repercussions less severe, these experiences can have a profound impact.

Direct Contact in Homes and Neighborhoods One example is the witnessing of an arrest. Given that an arrest can be a particularly dramatic event (especially if unanticipated or if the suspect resists being taken into custody), it is surprising how little research focuses on the numbers and responses of people who watch this pivotal moment unfold. Brief discussions of this event tend to be found in literature on children with incarcerated parents, for whom exposure to a vivid scene of police force and parental disempowerment is an early link in a chain of ensuing psychological trauma ( Johnston 1995c, Parke & ClarkeStewart 2003). Braman (2004, pp. 1–2), who conducted field research with families of prisoners in the Washington, DC, area, provides a harrowing description of a child’s recollection of her father’s treatment by the police: [The police] chased him in the house, and I was sitting there screaming, like, “Daddy! Daddy!” . . . The police came, and they pushed him down on the floor. He got up and pushed them off and ran through the front door, so I ran behind him . . . . [T]hey came and pulled my father from under the car and started beating him. And I was standing there looking at them beating my father with night sticks, and they dragged him through the alley and put him in the paddy wagon.

As this excerpt indicates, the capture of a suspect is the top priority during these procedures, with bystanders being either ignored or ordered to sit or lie in view of police officers www.annualreviews.org • Punishment Beyond the Legal Offender

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while the arrest takes place. If the police are attempting to catch a suspect off guard, an arrest will begin suddenly, often at an hour when people are likely to be asleep, and will be announced by verbal aggression, a display of weaponry, and possibly a show of force such as the kicking down of a door. The process of being taken into custody can incite high emotion, including fear and confusion, and in some cases results in asthma or heart attacks or other stress-related health crises among suspects (Ross 1998). Virtually no research has been conducted on the physiological response of witnesses to an arrest (Koehler et al. 2003), but one would surmise that similar panic reactions could be provoked. During the arrest, the family or friends of a suspect may hear or see their loved one engage in violent struggle, and they may watch the police ransack their residence in the search for evidence (LeBlanc 2003). Children who are present for an arrest at the very least experience the abrupt removal of their parent, most likely with no explanation beyond a general assertion that their mother or father has done something wrong. They also may be left unattended if the arrested parent is the sole caretaker and the police are not aware of them (for example, when children hide and the parent, fearing the loss of custody, does not alert the officers to their presence). Alternatively, they may be taken to the police station before being handed over to Child Protective Services if no substitute caretaker is available (Smith & Elstein 1994, Johnston 1995a, Norman 1995). The overall lack of coordination between the child welfare system and the criminal justice system has been criticized for routinely leaving children without immediate care, recourse for reunification, or mental health services following a parent’s arrest (Bloom 1995b, Hairston 1998, Phillips et al. 2004). Although an arrest is a powerful event, it is also limited in its frequency. People with close ties to those who have warrants out for their arrest experience more sustained forms of punitive control and surveillance. Goffman’s (2006) ethnographic study of young men “on


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the run” in West Philadelphia offers an illuminating portrait of the intense strains these warrants place on family and social life. Sometimes issued for serious illegal activities, but often only for minor infractions or failure to meet probation or parole conditions, warrants effectively become a barricade between the men and anyone known by the police to have ties to them because officers use the latter as indicators of where to find the former. Fearful of being taken into custody, the pursued men avoid showing up for the births of their children, family celebrations, and other occasions they would be expected—by both relatives and police—to attend. The primary way the police learn of these occasions is through information yielded by family members and social intimates, at times obtained by threatening people with legal repercussions, conducting disruptive and destructive searches of residences, or cajoling those seeking revenge for a personal affront. Indeed, as long as the police are unable to find the person for whom they have the warrant, they are guaranteed to spend more time monitoring and questioning those who are able to circulate legally and freely. This situation, combined with the warrantees’ evasion of key gatherings, sows distrust, anger, and alienation into relationships while keeping family members and friends in more regular contact with criminal justice authorities than with the hunted young men. Likewise, the U.S. Department of Housing and Urban Development’s “One Strike and You’re Out” eviction policy for public housing tenants brings surveillance and accusation into the homes of people who themselves are free of criminal charges. Under this policy, which was created through the AntiDrug Abuse Act of 1988 and the Housing Opportunity Extension Act of 1996, local public housing authorities are required to administer leases that deem as grounds for eviction any criminal activity (with special emphasis on drug-related offenses) committed on or off the premises by the tenant or “any member of the tenant’s household, or any guest or other person under the tenant’s control” (Mele 2005,


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p. 125). In a discussion of this policy, Mele (2005) skillfully dissects the peculiarity of a penalty that makes law-abiding tenants civilly liable for the alleged criminal conduct of others, regardless of whether this conduct takes place under their own roofs or whether the tenants even have any knowledge about the illegal activities—not to mention whether the culprit is actually convicted of the suspected crime. Importantly, the requirements for evidence in civil law are less exigent than for criminal law (for example, permitting hearsay testimony). As a result, this policy wraps low-income people in a web of distrust toward their neighbors (who may make claims of crimes) and their cohabitants (who may actually commit a crime). Public housing residents therefore find themselves in the double role of monitor and monitoree in an incessant struggle to avoid the calamity of eviction. Similar circumstances affect those residing with people who are on probation or parole. Probation and parole conditions vary among jurisdictions, but they typically mandate check-ins between the supervisee and the assigned officer that include verifications of residential and employment status, plus the avoidance of all criminal activity and the compliance with any instructions given by the supervising officer. Special conditions may apply depending on the nature of the offense, for example, drug testing for actual or suspected substance users or restraining orders for those convicted of domestic violence (Petersilia 2003, p. 82). Although all supervision activities can occur in a local office, probationers and parolees are denied their Fourth Amendment right to privacy and must permit the search of their person, place, and property without a warrant by the police or a probation/parole officer (and, in many states, any accompanying law enforcement official). When they reside with other people, all areas of the living quarters fall under these search conditions unless a coresident can expressly prove that the supervised person is unable to access a specific area. In addition to weapons, alcohol, and illegal

drugs, some common articles—such as knives exceeding certain lengths, and various household tools—are forbidden to those under supervision, meaning that their coresidents are also prohibited from having these items on the premises. In addition, like arrests, residential searches may be unannounced and typically are conducted at odd hours in an effort either to verify that the supervisee is complying with a curfew or residential order or to try to catch people unawares. In a study of female partners of inmates at northern California’s San Quentin State Prison (Comfort 2007, p. 190), one woman describes her frustration over the patrolling of her domicile once her spouse returned home: We could be just getting done . . . having our little intimate time, and here comes somebody knocking at the door at seven o’clock in the morning . . . . They have a key to our gate at the bottom of the [stairs], cuz it’s like there’s a gate and then there’s the upstairs where you can come in, so [the parole officer] has the key, so he comes and he knocks on our door, and so by then I’m like, man! You feel so violated, you just feel like God! I can’t even have no privacy!

Thus, coresidents are de facto subjected to the same processes and regulations as the supervisee, inspiring feelings of being intruded upon, monitored, and controlled as if they, too, were officially sanctioned.

Direct Contact in Jails and Prisons Arrests, warrants, and probation or parole supervision draw the families and associates of offenders into contact with the criminal justice authorities while they are in their homes or neighborhoods, demonstrating the invasion of personal or communal space by disciplinary forces. A reverse dynamic transpires when people penetrate the highly regulated environs of correctional facilities to visit their incarcerated loved ones, a situation that confers the status of “quasi-inmate” upon the www.annualreviews.org • Punishment Beyond the Legal Offender

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outsider (Comfort 2003). Processes for visiting jail detainees and prisoners vary according to each institution’s requirements, but the standard procedures for entering a correctional institution entail presentation of official identification, a visual review of one’s attire, and passage through a metal detector. They also may include the interdiction of personal belongings (such as purses and cell phones), compliance with a dress code, a physical search, and extensive periods of waiting (Schafer 1991, Bandele 1999). Once inside the facility, visitors are subjected to the same scrutiny, general withholding of information, required obedience of institutional rules, and periodic reminders of their subordinate status as are inmates. In her study of wives of prisoners at California’s Soledad State Prison, Girshick (1996)—herself the spouse of an inmate at the time of her fieldwork—details the many tribulations and humiliations she and her participants endure as they cross the penitentiary border. Of particular note are physical searches in which women must expose the lining of their undergarments for inspection, after which they are sometimes required to submit to a full strip search before being permitted entry to the institution (pp. 82–87). Girshick also illustrates how punitive measures are routinely exercised over free people owing to their association with prisoners even when they are not in the convict’s presence:


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One of the more insulting procedures for visitors is going through a car search. They are unannounced; when you drive onto the prison grounds, the normal route is blocked, so they cannot be avoided . . . . Car searches take a long time, usually hours, cutting into precious visiting hours. During a car search, everything is removed from your car, guards search all the compartments of your car and under seats, while dogs jump in every area to sniff for drugs (p. 84).

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sors when confined in an environment that diminishes their incarcerated parent’s authority while simultaneously placing strict regulations on the child’s behavior ( Johnston 1995b). Correctional visiting rooms are notoriously ill-suited to children’s needs, with few if any toys or games and with adult-sized institutional furniture, abundant restricted areas, and prohibitions on running, jumping, or otherwise moving energetically (Hairston 1998). Inmates and visitors are charged with controlling their children, the difficulty of which is exacerbated by the fact that young ones become bored quickly and are not allowed to wander from their parents (and therefore are barred from playing with other children). Meanwhile, adults are caught between having conversations with each other—the visit may be the only opportunity to have important discussions without the censorship to which mail and phone calls are subjected—and worrying that a correctional officer will sanction them for their children’s behavior (Nurse 2002, pp. 42–48). The resultant tension and frustration are at loggerheads with family quality time and other intended benefits of visitation and have thus led to recommendations for significant change in visiting policies (Hairston 1996) and for enhanced parenting programs that support inmates’ efforts to interact positively with their children (see Loper & Tuerk 2006 for a comprehensive review). Other forms of staying in touch with people on the inside also bring nonoffenders into contact with criminal justice authorities. At most facilities, correspondence sent to and from inmates is subject to being read and censored by correctional officers, a process that degrades the letter writers and recipients and serves to reinforce awareness of their inferior status (Goffman 1961, p. 31). Likewise, phone calls between inmates and outsiders are usually monitored by correctional officers, who listen to all or a portion of the conversation and have the power to abruptly terminate the call if they deem the content to be offensive or suspicious (Fishman 1988b; Girshick 1996, pp. 62–63). For people who are intent on


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remaining connected to an incarcerated loved one (or loved ones, as is increasingly the case in families with multiple members behind bars), the acts of visiting, writing letters, and having phone calls are not singular experiences, but rather substantial elements in the fabric of everyday life. Therefore, these kin and kith are repeatedly exposed over sustained periods of time to the penal regulation of their comportment, language, and daily schedule— even while in their own homes—as well as their food intake, appearance, and physical environment when at the jail or prison. This state of being intermittently monitored and controlled by correctional authorities results in the “secondary prisonization” (Comfort 2007) of the family and friends of inmates, a form of socialization to carceral norms similar to that observed among prisoners by Clemmer [1958 (1940)] and further theorized by Sykes (1958). By producing changes and disruption in the personal, domestic, and social worlds of people who are not themselves sentenced to confinement, secondary prisonization ultimately extends the reach and intensity of the transformative effects of the correctional facility.

these transformations (for instance, a fine will diminish a family’s financial resources), they also may stem from what have come to be known as “collateral civil penalties,” or the secondary “sanctions on certain types of employment, housing, education, welfare eligibility, parental rights, and protections from deportation” (Mele & Miller 2005, p. 1) applied to people with criminal records. A developing literature explores these factors and their effects under the rubric of the “unintended consequences of incarceration” that decrease the chances of former jail and prison inmates being able to establish financially solvent, physically healthy, socially and civically integrated lives (Petersilia 2003, Travis 2005, Western 2006). In a meticulous overview, Hagan & Dinovitzer (1999; see also Foster & Hagan 2007) expand this purview by elaborating the thesis that family members and close associates also experience these unintended or collateral effects of incarceration, articulating the argument at the core of a nascent body of edited volumes published early in this decade (Mauer & Chesney-Lind 2002, Harris & Miller 2003, Travis & Waul 2003, Pattillo et al. 2004).

UNINTENDED CONSEQUENCES: EFFECTS ON HEALTH, ECONOMIC OPPORTUNITIES, AND SOCIAL CAPITAL

Mental and Physical Health

We have seen a range of ways in which having contact with a suspected or actual lawbreaker can result in people without legal entanglements of their own being scrutinized and castigated by the authorities and institutions that exist to manage offenders. Yet the punitive effects of correction levied upon another person are not only experienced directly at the hands of the state; the imposition of punishment also can reverberate through kinship and social networks by triggering psychological or physical changes, reducing economic opportunities, and altering social relations. Although the sentence itself may propel

One cornerstone of the unintended consequences literature is the impact of parental arrest and incarceration on the mental health of children. Having an inmate parent has been correlated with emotional and behavioral disturbances such as depression, anxiety, and aggressiveness among children (Sack et al. 1976, Fritsch & Burkhead 1981, Gabel 1992). Although results of many studies must be interpreted cautiously against a backdrop of broader socioeconomic disadvantage, some children’s disorders clearly relate to a parent’s involvement with the criminal justice system. For example, Kampfner (1995, p. 95) reports that children of incarcerated mothers exhibit symptoms of post-traumatic stress disorder that include audio hallucinations of hearing their mother’s voice and “flashbacks www.annualreviews.org • Punishment Beyond the Legal Offender

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about their mothers’ crimes or arrests.” Likewise, Hairston’s (1998, 1999, 2003) extensive work on issues related to maintaining contact with parents behind bars provides a substantial contribution to the understanding of children’s mixed emotions of bereavement, guilt, anger at the authorities, and resentment toward the parent that unfold in the aftermath of a criminal conviction. Not surprisingly, children whose parent is taken into custody due to violence toward the remaining parent, another family member, or the children themselves have been found to suffer a complex interplay of such emotions, further intensified by conflicts of allegiance and profound feelings of betrayal (Kaplan et al. 1994). Care and custody arrangements during a parent’s absence play an obvious role in children’s mental health. In the majority of cases, children continue to live with their kin after a parent’s arraignment, although those with incarcerated mothers are much more likely than those with incarcerated fathers to reside with nonparent family members. Using data from the 1997 Survey of Inmates in State and Federal Correctional Facilities, Johnson & Waldfogel (2004, pp. 110–11; see also Mumola 2000) find that 78% of children with an incarcerated father live with their mother and 15% live with a grandparent or other relative, whereas among children with an incarcerated mother, 65% live with a grandparent or other relative, and only 17% reside with their father. The fact that mothers are more likely than fathers to be residing with their children before arrest (Mumola 2000) and the probability that their detention will result in their children’s care being transferred to extended kin have drawn special attention to the plight of children with incarcerated mothers despite their low numbers compared with children with incarcerated fathers (Bloom 1995a). The disruption in children’s residential and care situations upon their mother’s removal from the home leaves them prone to being placed into foster care. Indeed, Swann & Sylvester (2006) find that changes in the female incarceration rate explain 40% of the


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increase of foster care caseloads, which more than doubled from 1985–2000. Although substantial numbers of all children with incarcerated parents suffer from multiple factors adversely affecting growth and development, “as the number of risk factors rises, children are increasingly likely to be residing with someone other than a parent and are particularly likely to be living in foster or agency care” ( Johnson & Waldfogel 2004, p. 121). This finding is highly consequential with regard to the Adoption and Safe Families Act (ASFA), a federal law enacted in 1997 that has become a case in point of the collateral punitions suffered by convicts and their kin and “an example of the creation of negative social capital in communities that desperately need social resources to meet the needs of their families” (Hagan & Coleman 2001, p. 359). Under ASFA, if a child has been in foster care for 15 of the previous 22 months, the state must file for a termination of parental rights. Ostensibly, the child welfare system, including foster care and adoption, is designed to protect children from abusive or neglectful parents (for a powerful and penetrating critique of this system, see Roberts 2002). However, children may enter the foster care system not because of harm posed to them by their parents, “but simply because [the parents] are unable to care for their children due to the fact of their incarceration” (Barry et al. 1995, p. 147). For these children, ASFA significantly jeopardizes the possibility of postincarceration reunification with their parent: In 1997, incarcerated fathers expected to serve an average of 82 months for state prisoners and 105 months for federal prisoners, whereas incarcerated mothers expected to serve an average of 49 and 55 months, respectively (Mumola 2000). This effectively guarantees that parents whose children are placed in foster care at the beginning of their sentence will have their rights terminated years before their release from custody. When there is no history of abuse or neglect and children already have experienced the upheaval of parental imprisonment followed by


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placement in foster care, being permanently removed from the custody of their parent exacerbates children’s trauma, thereby adding to their disadvantage and increasingly the probability that they eventually will engage in illegal behaviors and wind up in juvenile detention themselves (Roberts 2002, pp. 200–20). The strong concern for the suffering of society’s most vulnerable members has had an unintended consequence of its own: With children absorbing the bulk of recent research attention in a fledgling field, adults who experience a loved one’s incarceration have been left largely unstudied. A handful of scholars have addressed parents of offenders who commit grievous crimes (Beck et al. 2007, Condry 2007, Sharp 2005); the work of Green et al. (2006) uses longitudinal data to examine the effect of sons’ incarceration on their mothers’ psychological distress, finding a significant association between having a son who has been recently incarcerated and having poor psychological well-being. Given that the majority of inmates are male and were not the sole or primary caretakers of their children prior to arrest, it is curious that women with incarcerated partners have not attracted more notice, even if only in their capacity as mothers of inmates’ children. This was not the case several decades ago, when early studies drew on theories of marital conflict, separation or divorce, and widowhood to explore the mental health issues affecting prisoners’ wives (e.g., Kemp et al. 1982, Jorgensen et al. 1986). Using a standardized scale of grief, Daniel & Barrett (1981, p. 320) found that “in comparison with wives of prisoners of war and servicemen missing in action, more [wives of inmates] experienced emotional symptoms typical of grief.” Similarly, Carlson & Cervera (1991a, p. 279) applied family crisis theory to the separation of husbands and wives due to men’s incarceration, concluding that “the dual aspects of dismemberment and demoralization make imprisonment one of the most severe family crises.” Qualitative studies of wives of prisoners also have documented depression and anxiety among participants, with higher levels

persisting among those who feel shame regarding their husband’s legal status or who experience disapproval of their relationship owing to the man’s lawbreaking and confinement (Fishman 1988a, Girshick 1996, Braman 2004). The kin and associates of inmates not only experience their own reactions to the loved one’s incarceration; they also are affected by the psychological impact of confinement on the offender. In an astute analysis, Haney (2003) notes that the increasing length of penal sentences in the United States has led to people spending longer periods of time in correctional facilities that simultaneously have become more dangerous because of overcrowding and become less oriented toward rehabilitation. This has intensified the institutionalization of prisoners—that is, people’s “normal reactions to a set of pathological conditions” that result in “habits of thinking and acting that are extremely dysfunctional outside the prison walls” (Haney 2003, pp. 37– 38; see also Rhodes 2005). Haney argues that many ex-prisoners show signs of dependence on external constraints to regulate their behavior, as well as signs of hypervigilance, suspicion, psychological distancing, the inclination to exploit others, diminished self-worth, and post-traumatic stress disorder (pp. 40– 46), all of which make it difficult for them to form or reform supportive and trusting personal relationships. Nurse (2002) supplies empirical evidence of these troubles through her remarkably comprehensive study of juvenile fathers in the California Youth Authority system. Her observations of the impact of the correctional environment on inmates’ means of disciplining their offspring are a salient example of the literal transmission of punishment from the offender to his kin: In prison, rule infractions are dealt with swiftly and often harshly. The punishments employed are frequently arbitrary and have little relationship to the infraction committed . . . . The relationship between prison staff and inmates provides a potent model to www.annualreviews.org • Punishment Beyond the Legal Offender

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undermine or enhance the parent/child relationship . . . . The young men are exposed to a model of control maintained through fear and monitoring. As a result, the prison is, in effect, teaching men to use punishment as a way to manage their children (p. 52).


Thus, the mental health consequences of incarceration, one may argue, extend far beyond the sentenced individual, permeating the daily life of relatives, friends, and even people with no firsthand knowledge of the inmate (for instance, in the case of an infant too young to yearn for a father behind bars, but who still suffers from the imprisonment if the caretaking mother becomes clinically depressed). Typically, it is precisely in the neighborhoods where affordable mental health services are least accessible that incarceration is most prevalent (Cadora et al. 2003), creating a feedback loop of psychological disturbances fueled by corrections. The related question of how incarceration affects the physical health of the broader community has been raised by medical and public health scholars with increasing urgency over the past decade. Inmates have a disproportionately heavy burden of certain infectious diseases such as tuberculosis (TB), human immunodeficiency virus (HIV) and hepatitis C (HCV), compared with the general population (Macalino et al. 2004, MacNeil et al. 2005, Maruschak 2006). Recent studies have attempted to determine whether correctional facilities themselves play a significant role in disease transmission, or whether this is primarily due to the overlap in both behaviors that place people at risk for illness and that are criminalized (e.g., substance use, sex work) and certain factors associated with poor health and illegal activity (e.g., poverty), which leads to individuals who are likely to be exposed to disease also being likely to be confined in a correctional facility. The gathering of evidence and debates on this issue are ongoing (Hammett 2006, Johnson & Raphael 2006, Taussig et al. 2006). In either case, the prevalence of infectious diseases in jails and pris282

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ons is indisputably high, with estimates that 25% of all people in the United States who are HIV-positive, 33% of those who are infected with HCV, and more than 40% of those who have TB will be confined in a correctional facility at some point in a given year (Hammett et al. 2002). In addition, incarcerated populations suffer disproportionately from numerous other health-jeopardizing conditions including substance use, exposure to violence, high-stress environments, and undiagnosed chronic disease (Conklin et al. 2000, Freudenberg 2001). Correctional facilities may assemble a concentration of people with compromised health, but they do not permanently contain the majority of them. Each year, approximately 719,000 inmates are released from state and federal prisons, and more than seven million individuals exit the country’s jails (Hammett et al. 2002, Harrison & Beck 2006). Freudenberg et al. (2005, p. 1725; see also Iguchi et al. 2005) have argued that the continual removal and reinsertion of people experiencing health problems “contribute to the disparities in health that distinguish low-income, urban communities with high incarceration rates and high proportions of Blacks . . . and Latinos from communities with lower incarceration rates and higher incomes.” Much of the epidemiological and behavioral research needed to explain fully this dynamic is still in early stages, although several important indications have emerged that people who leave correctional institutions with undiagnosed or untreated illnesses present a health risk to those welcoming them upon their return, particularly their sexual partners. Studies show high levels of unprotected intercourse among male ex-offenders and their female partners shortly after the man’s release from custody (Morales et al. 1995; Grinstead et al. 2001b, 2005), a behavior that may be prompted by the desire to reestablish intimacy, display trust, or conceive children after a long period of enforced sexual separation (Comfort et al. 2005). Auerswald et al. (2006) determined that partner incarceration mediated gender


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differences in rates of sexually transmitted infections (STIs) among African American youth, supporting their hypothesis that adolescent females had higher rates of STIs compared with adolescent males, not due to greater sexual risk behaviors, but rather due to their involvement with partners who had spent time behind bars. In addition, the incarceration of a partner is also associated with greater prevalence of concurrent sexual relationships (that is, relationships that overlap in time), which facilitate a more rapid spread of STIs, including HIV (see Adimora et al. 2003). Former inmates with untreated illnesses can unintentionally jeopardize the health of people with whom they do not have sexual contact as well. A study of more than 30,000 ex-convicts found the first two weeks of release from prison to be a particularly vulnerable time for participants, who had a mortality rate during that period 13 times higher than that of the general population, in large part due to narcotic overdoses (Binswanger et al. 2007). Among people who use illegal substances, sharing needles with released offenders and joining them as they resume their noncustody levels of substance use can place all involved at risk of overdose or of HIV or HCV infection (Ochoa et al. 2005). Meanwhile, the origins of multiple outbreaks of TB in nonincarcerated populations (a rarity in an era when TB has been virtually eradicated in the United States) have been traced to local jails in which some patients previously were detained, and low treatment completion rates for inmates with TB contribute to the development of drug-resistant strains of the disease that then may be carried into the general society (Farmer 2002, MacNeil et al. 2005).

Economic Opportunities and Social Capital Another unintended consequence that has benefited from careful study of late is the diminishment of economic opportunities and resources for former inmates and their fam-

ilies. Principal among these is the stigmatization associated with a criminal record when obtaining employment, as documented by Pager’s (2003) study that used an experimental audit approach in which matched pairs of men applied for entry-level jobs. All individuals presented roughly identical credentials; in one pair the members were African American and in the other they were white; and in each pair one member was randomly assigned to state that he had a criminal record related to a drug conviction for the first week of applications, with the pair thereafter rotating this identification on a weekly basis. Her results showed that having a criminal record decreased callback for an employment opportunity by half for white applicants and by two-thirds for black applicants. Even more striking, blacks without a criminal record were called back 14% of the time compared with 34% of the time for whites without a criminal record and 17% for whites with a criminal record. Blacks with a criminal record were called back a mere 5% of the time. Pager’s results coincide with the findings of Western (2006) who, in a series of detailed analyses, describes the very bleak picture of employment opportunities for men, and particularly African American men, with a history of incarceration. More likely than not, these men already had few marketable skills and limited experience in the legal labor market prior to incarceration. However, incarceration is “a key life event that triggers a cumulative spiral of disadvantage” by reducing the level of wages, slowing the growth of wages over the life course, and “restrict[ing] the kinds of jobs that former inmates might find.” As a result, “[m]en tangled in the justice system become permanent labor market outsiders, finding only temporary or unreliable jobs that offer little economic stability” (Western 2006, p. 109; see also Western 2002). Clearly, the scarce employment opportunities and the meager wages available to former inmates will affect kin or intimates who rely on—or would like to rely on— an ex-convict for financial support. The www.annualreviews.org • Punishment Beyond the Legal Offender

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demographic profile of the average inmate indicates he was unlikely to be employed or to be receiving substantial wages prior to his arrest (Petersilia 2003, Kling 2006), although in poor families any contribution to domestic income or goods may make a critical difference. However, at the time of release from custody, parole officers, family members, and the lawbreaker himself often raise high expectations for turning over a new leaf of gainful legitimate employment and solid financial contribution to the household. The man’s subsequent inability to obtain a steady post and his relegation to piecemeal jobs with substandard pay can have both a deeply demoralizing and an impoverishing impact on those in his inner circle because, with an additional adult in the household to feed and clothe, parents or partners of former inmates may find that their finances are stretched even further than they were when their loved one was behind bars (Davis 1992, Cooke 2005). This is not to say that incarceration itself is cheap for the families and friends of inmates. Most jail detainees and prisoners are unable to receive incoming phone calls, and they make their own calls by phoning collect. Collect calls under any circumstances cost more than direct-dialed ones, but those originating from correctional facilities carry an even higher toll because it has become standard practice for telecommunications companies to levy surcharges on inmate-initiated calls and to bill them at rates upwards of three times— and in some instances five to ten times—the cost of a regular phone call (Hairston 1998, p. 626; Zoellner 2000). These contracts render a commission of up to 65% of the revenue from inmates’ calls to the county for jails or to the Department of Corrections for prisons (McCosh 2001) and represent a heavy burden for low-income families. In addition, sending packages of food, clothing, tobacco products, and other supplies or depositing money in an inmate’s institutional spending account can drain a family’s financial resources (McDermott & King 1992). Further expenses during incarceration accrue


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from visiting someone in jail or prison, which entails financial outlays for local or longdistance travel at a minimum, and often lodging, child care, refreshments during the visit, and income forgone if the visit occurs during work hours (Davis 1992). The combined costs of each of these forms of staying in touch can be significant: Grinstead et al. (2001a) found that poor women visiting a northern California prison spent an average of onequarter of their income maintaining contact with a loved one during his incarceration. Given the tremendous rate of incarceration in the United States and its concentration within certain populations, scholars have been able to document broad effects on the social capital of residents of impoverished neighborhoods resulting from the continual removal and return of convicted offenders. In a series of papers, Rose & Clear (1998, 2003, 2004) propose a theory of “coercive mobility” to elucidate high-incarceration neighborhoods’ heightened instability and vulnerability to crime. Drawing on social disorganization theory, which argues that “in areas where residents are highly outwardly mobile, crime will flourish, because those locations will lack the stable infrastructure that is required as a foundation of informal social control” (Clear 2002, p. 182), Rose & Clear describe how the perpetual incarceration and reentry of significant portions of the adult population foster residential turnover and disrupt social networks. The upshot is increased socioeconomic disadvantage as levels of crime rise, feelings of community solidarity drop, and residents’ quality of life is diminished. Lynch & Sabol (2004) find more ambiguous results using survey data to model the relationships between incarceration and community processes (e.g., participation in voluntary organizations). In their analyses, “residents were more willing to engage in informal social control as incarceration increased, but on the other hand, they exhibited weaker feelings of attachment to their neighborhoods, and they were not influenced to change either their levels of involvement in voluntary


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associations or their neighboring activities” (Lynch & Sabol 2004, pp. 157–58). With the caveat that more research must be conducted to verify the generalizability of their results, Lynch & Sabol (2004) posit that their findings “substantially complicate our view of how incarceration affects communities” (p. 158) and reflect on ways in which studies of the impact of processes of coercion on neighborhood residents could be further developed and improved upon (see also Wacquant 2000). Several domains of future study require attention as researchers refine our understanding of the neighborhood-level consequences of high-density incarceration. One example is the case of children whose own parents have never been incarcerated but who live in areas where the majority of their peers contend with this experience. Coping with friends, neighbors, and classmates who act out their pain or rage in the public spaces of schools and streets is liable to profoundly mark these youngsters’ development, even if their personal family unit remains intact. Indeed, the issues of schools filled with children of prisoners and parolees merit specific notice, as teachers and administrators are forced to spend more time managing the behavior of traumatized youth than providing academic instruction. Likewise, the increased policing of school environments exposes children who are not directly involved with the law to the questioning and apprehending of their classmates, and it subjects them to metal detectors, armed patrols, and other elements more commonly associated with detention centers (Devine 1997). More broadly, there exists a need to concretely assess the outcomes of the diversion of public resources from social institutions providing education, child care, food, and housing for primarily inner-city poor women and children to penal institutions that confine primarily inner-city poor men (Wacquant 2007). Investigations into these and other areas are likely to illuminate a wide-ranging spectrum of unintended consequences of incarceration that further com-

pound Western’s (2006, p. 8) diagnosis that “the penal system has emerged as a novel institution in a uniquely American system of social inequality.”

PARADOXICAL EFFECTS: JAILS AND PRISONS AS SUBSTITUTE SOCIAL SERVICES The previous two sections establish the myriad direct and indirect ways sanctions aimed at individuals also punish surrounding family, friends, and neighbors. To balance this discussion, it is important to acknowledge the role correctional institutions have come to play in a society that has seen a significant retrenchment of social welfare services concomitant with the massive expansion of its carceral population (Currie 1998, Sidel 1998). Increasingly called upon to house the country’s destitute who are mentally ill, physically sick, and homeless, jails and prisons are turning into the nation’s primary delivery system of public goods for those at the bottom of the class structure, a situation that has a paradoxical impact on the kin and loved ones left behind.

Correctional Facilities and the Distribution of Social Welfare The provision of health care provides the clearest example of this curious arrangement. Under the Eighth Amendment, inmates have a constitutionally guaranteed right to medical care. Although the treatment incarcerated people receive might be substandard to the point of gross violation of medical ethics and codes—as has been repeatedly found to be the case in an array of investigations and lawsuits (Finkelstein 2001, Jafari 2004, Sterngold 2005, Fleury-Steiner & Crowder 2008)—it still may represent an improvement over the nonexistent or seriously compromised services they encounter when they are not behind bars (see Abraham 1993). Cognizant of this fact and of the high prevalence of HIV, HCV, TB, and other preventable and/or treatable www.annualreviews.org • Punishment Beyond the Legal Offender

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illnesses among people confined in jails and prisons, scholars have identified correctional health care as a distinctive “public health opportunity” that should play a pivotal role in the administration of medical services to the poor (Glaser & Greifinger 1993; see also Hammett 2006). Indeed, as Freudenberg (2001) notes, correctional facilities are well positioned to provide screening for segments of the population at high risk for infectious diseases, monitor the regimens of those found to have treatable illnesses, deliver primary health care and medications to people who otherwise have no access to services, and diagnose and provide support regarding the management of chronic conditions such as hypertension or diabetes. In addition, the large numbers of inmates suffering from substance addictions and mental illness and the current political climate that essentially prevents these people from being diverted to noncarceral treatment programs [although see Carey et al. (2006) for an evaluation of California drug courts and Moore & Hiday (2006) on mental health courts] make penal institutions logical sites for the provision of drug treatment, therapeutic counseling, and psychotropic medications (Freudenberg 2001, pp. 224–27). A similar state of affairs exists regarding other basic human needs and social benefits. Jails and prisons are notoriously dirty, physically uncomfortable, dangerous environments (see, for example, Irwin 1985), yet with scarce aid for affordable housing and inadequate services, they have become an important source of shelter for the poor (Wacquant 2007). Likewise, the quality of food in correctional facilities has been the subject of controversy and even lawsuits (Herel 2005, Paschenko 2006, Zernike 2006), but at the bare minimum inmates are unlikely to perish from starvation, a protection not afforded to those struggling for survival in the streets. Less dramatically, recent years have seen cutbacks in educational and life skill classes (such as literacy, GED preparation, parenting, and anger management) for detainees and prisoners, but some


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institutions do offer these types of programs, and people who are able to take advantage of them show measurable benefits after release from custody (Adams et al. 1994, Gerber & Fritsch 1995, Bourke & Van Hasselt 2001). Thus, in the absence of social policies and assistance providing medical care, psychiatric treatment, housing, sustenance, education, and support services for America’s poor in free society, correctional facilities have become the central hubs for the distribution of public (but now carceralized) aid. These peculiar circumstances are attested to by the counterintuitive observation by scholars of the urban poor that people frequently look healthier and better cared for when they have just exited jail or prison than they did prior to confinement (e.g., Bourgois 1995, p. 109). The provision of services by correctional institutions also affects the family, friends, and neighbors of inmates. For those who grapple directly with the untreated substance addiction or mental illness of a loved one, incarceration can bring a sense of relief—both because of the respite from the daily turmoil caused by the person’s difficulties and because of the hope that the inmate may finally receive some degree of care, however partial or inadequate, for troubles that are no longer addressed through conventional forms of social assistance. A study of women visiting their imprisoned partners in California (Comfort 2007) found that among many economically impoverished couples, the incarceration period represents a time of increased stability in the relationship because the penitentiary becomes responsible for managing men in significant need of psychological counseling, substance-abuse treatment, and job placement who otherwise seriously disrupt and sometimes jeopardize women’s lives. Women describe receiving letters and phone calls from prisoners and spending time with them in the confines of the penitentiary as contrasting favorably with the chaos wrought on their household


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by men wrestling on the outside with drug addictions, connections to gangs, propensities toward domestic abuse, and involvement in the illegal economy. Fed, sheltered, medicated, and heavily patrolled for signs of drugs and violence, prisoners become motivated and able to focus on cultivating emotional ties to their partners, atoning for past behavior, and planning for the future of the relationship (see also Fishman 1990, pp. 162–72). A woman who previously had been battered by her partner and is now married to a different man who is serving a 20-year sentence reflects on this phenomenon:

tion as a turning point and an opportunity to redirect one’s life for those fathers whose lives have become so out of control (usually because of alcohol or drug addiction) that they need a powerful shock or a highly structured environment, like prison, to break their downward spiral.” Rather than seeing their incarceration as a rupture in their relationships with their families, the men in Edin’s study who had this “turning point” experience used imprisonment as a “time out” that helped them reenter their children’s lives as more committed, attentive fathers (see also Nurse 2002, pp. 61–71).

We have a lot of men that’s very immature that don’t know how to treat a woman. For mine’s, I know that his head was hard! And he didn’t listen. So, this is his punishment . . . .

Repercussive Effects of Carceralized Aid

It’s a lot of good men behind walls! You know, it’s just that it took them to be behind the walls to want to get theirself in order. And that’s sad (Comfort 2007, pp. 173–74).

Clark (1995, 1996), herself serving a life sentence in a New York federal prison, documents similar transformations in incarcerated women’s relationships with their children. The mothers in her study articulate that they were “saved” by imprisonment from brutal lives of addiction and violence, and that it was only once they were behind bars that they were able to discover a deep, albeit poignant, connection to their children: “Here then is the tragic paradox of imprisonment, which tears women from their children and their mothering roles, yet bringing some sense of relief in its terrible wake. Deprived of their children’s daily presence, but also free of much of what distracted them, the mothers can finally think first about their children” (Clark 1996, p. 35; see Gonnerman 2004 for a contrast with mothers who were more stable prior to arrest). In a study examining the influences of fatherhood and incarceration in men’s criminal careers, Edin et al. (2004, p. 69) make a parallel assertion, proposing that “prison may func-

The many iterations, long-term consequences, and broader impact of the correctional facility as curious social service remain largely unexplored, but a range of outcomes and complicating factors can be conjectured. In some instances, it is possible that a period of incarceration could enable someone to obtain a targeted form of aid, which would result in a positive change in that person’s life. Such is the reasoning assumed by advocates of educational, parenting, anger management, substance treatment, and other forms of rehabilitative programs behind bars: Equipping an inmate with a GED, an improved relationship with a relative, or an entry to Alcoholics Anonymous will provide a foundation for the desistance of criminal behavior and the (re)integration into law-abiding society. Of course, the creation and implementation of these types of programs are greatly impeded by political barriers to supplying services to convicts that the nonincarcerated general population does not freely receive (Page 2004). Yet in cases in which such programs exist and are successful, one would expect that everyone living with or near the released inmate would likely experience a ripple effect of the correctional services received, whether through more rewarding family relationships,

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increased household resources, or enhanced neighborhood safety. However, a more common scenario is that any treatment imparted during incarceration has little lasting impact. One reason for this, forcefully argued by Carlen & Tombs (2006, p. 340), is that “a prison is a prison,” that is, the “essence of a prison is its carceral logic, which inevitably erodes all in-prison reform attempts.” Being fundamentally punitive institutions, when correctional facilities do offer ostensible services, these services are inherently degraded by their organization around disciplinary rules, hierarchies, and timetables; by the possibility that the people administering them are incompetent and unable to obtain employment in a more prestigious setting [for example, as is often the case with prison doctors, who are allowed to work in penal settings when they have been barred from general practice (see Reiterman 2004)]; and by the very fact that they are being provided in an environment traditionally designed to intimidate, dehumanize, and control its occupants. Carlen & Tombs contend that this intrinsic conflict between the primary premise of carceral institutions (to confine offenders against their will) and any secondary goals of rehabilitation is insurmountable and should serve as the basis for relocating social services (and the people who commit crimes primarily out of need for social services) to noncustodial settings (see also McCorkel 2003). A further reason for the fleeting influence of correctional treatment is that access to these programs or services typically stops at the gate of the facility, whereas the socioeconomic context of inmates’ home neighborhoods remains unchanged. People released from jail or prison therefore find that, rather than at least having their basic needs met and perhaps being able to participate in educational classes, employment training, or substance-use counseling, they are returned to the daily fight for food, shelter, and medical care in an environment of scarce economic opportunity and abundant hazards to


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their physical and psychological well-being. Moreover, at the first signs that someone is in increased need of help (a positive drug test, a missed appointment with a parole officer), the threat of reincarceration is announced— and if a warrant is issued, people will reenter the cycle of dodging arrest by avoiding the people and places that might otherwise provide a support structure, such as teachers or medical providers (Goffman 2006). Concern for the public health implications of this situation has spawned efforts to provide postrelease case management for former inmates with specific health-related issues, such as HIV infection (Rich et al. 2001) or substance addiction (Richie et al. 2001). However, without widespread political support, these programs remain isolated examples, and the majority of ex-offenders are confronted with the loss of the modicum of support or treatment they may have been able to access while incarcerated, as social welfare services for the nation’s noncarceral poor are downsized or flat-out terminated (Wacquant 2007). The delivery of compromised services by institutions of punishment and the abrupt termination of these services once someone leaves the carceral walls can create a predictable series of interactions between inmates and their loved ones. As described above, when people living in poverty—and especially those who have unaddressed health or mental health conditions—are incarcerated, they and their kin or intimates may experience a period of renewal in their relationships as the correctional facility treats (or merely patches over) outstanding difficulties and, as a result, belief in a better future seems possible. When inmates return home and the temporary support of the carceral apparatus is removed, dashed hopes compound the preexisting problems. Nurse (2004, pp. 85–86) deftly captures this sequence of events among juvenile fathers, who ardently want to frame their incarceration as a time of positive change both out of earnest optimism and out of the desire to convince the mothers of their children to


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remain in romantic relationships with them. Yet once they are outside with little postrelease assistance to realize their commitments to household breadwinning and paternal involvement, the young men cannot but default on their promises, leaving their children and their children’s mothers to cope with bitter disillusionment and frustration in addition to the barriers to smooth family functioning they faced before and during the father’s incarceration. For people who are repeatedly subjected to these cycles of raised expectations and inevitable letdowns, the incarceration of a partner, parent, or other intimate risks acquiring positive associations at a time when apologies can be offered, dialogues resumed, and futures planned. Some may be painfully aware that this periodic and perplexing improvement in relationships relies heavily on the penal institution’s intervention in separating inmates from outside stressors and distractions, meeting their most outstanding needs for basic social assistance, and temporarily absolving them of responsibility to find legal employment or be financial providers, all of which permit them to focus on repairing kinship and social ties. In this instance, an acceptance of or even reliance on the correctional facility as a moderator of personal relationships may arise as it assumes the status of the most powerful and prominent social institution available to the nation’s poorest citizens (Comfort 2007). Others, however, may take the view adroitly documented by Lynch (2001) among parole officers, who frame the failure of former inmates to find gainful employment, abstain from substance use, and otherwise succeed in society as a matter of personal choice and individual agency and not as depending on situational factors. An ex-offender’s persistent return to old habits and inability to become a member of the sober, law-abiding workforce

despite the apparent advances he made while incarcerated may cause the people around him to believe that, as one parole officer asserted, “this man loves prison” (Lynch 2001, p. 54), and that efforts to supply emotional or practical support outside of the penitentiary’s walls are wasted. Completing the cycle, the image of the incorrigible, institutionalized lawbreaker who has alienated his own family and demolished his social network is then used to justify further cutbacks in funding for postrelease services, deepening the marginality of ex-offenders.

CONCLUSION This review has argued that various forms of discipline that are legally imposed on an individual lawbreaker in reality reverberate far beyond this narrow target, affecting kin, friends, and neighbors of the suspected or sentenced person. Elucidating how these legal bystanders experience direct contact with criminal justice authorities and institutions, the unintended consequences of incarceration, and the paradoxical effects of prisons and jails as substitute social services for the most downtrodden members of society crystallizes the importance of reflecting on who is situated within the ambit of a given punishment and what impact that penalty has on them. There is a pressing need for social science inquiry to nourish legal debates in this relatively new field, with a particular emphasis on systematic and integrated studies from sociology, anthropology, economics, psychology, and public health of the full impact of penal sanctions that cease to treat the legal offender as a social isolate. Any attempt to measure the full scope of the transformation of American society by the nation’s policing and sentencing policies will be incomplete without such contributions.

DISCLOSURE STATEMENT The author is not aware of any biases that might be perceived as affecting the objectivity of this review. www.annualreviews.org • Punishment Beyond the Legal Offender

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ACKNOWLEDGMENTS I wish to thank Pat Carlen, Ursula Castellano, Alice Goffman, John Hagan, Paul Rock, Lo¨ıc Wacquant, and Christopher Wildeman for their helpful comments on various versions of this paper.

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Sterngold J. 2005. Grim reality of prison health care: doctors, nurses and inmates suffer inside broken system. San Francisco Chronicle, Oct. 16, pp. A15 Swann C, Sylvester MS. 2006. The foster care crisis: What caused caseloads to grow? Demography 43(2):309–35 Sykes G. 1958. The Society of Captives: A Study of a Maximum Security Prison. Princeton, NJ: Princeton Univ. Press Taussig J, Shouse R, LaMarre M, Fitzpatrick L, McElroy P, et al. 2006. HIV transmission among male inmates in a state prison system: Georgia 1992–2005. MMWR Cent. Dis. Control 55(15):421–26 Tonry M. 2001. Punishment policies and patterns in Western countries. In Sentencing and Sanctions in Western Countries, ed. M Tonry, RS Frase, pp. 3–28. New York: Oxford Travis J. 2005. But They All Come Back: Facing the Challenges of Prisoner Reentry. Washington, DC: Urban Inst. Press Travis J, Waul M, eds. 2003. Prisoners Once Removed: The Impact of Incarceration and Reentry on Children, Families, and Communities. Washington, DC: Urban Inst. Press Wacquant L. 2000. Deadly symbiosis: when ghetto and prison meet and mesh. Punishm. Soc. 3(1):95–134 Wacquant L. 2002. The curious eclipse of prison ethnography in the age of mass incarceration. Ethnography 3(4):371–97 Wacquant L. 2007. Punishing the Poor: The New Government of Social Insecurity. Durham, NC: Duke Univ. Press Western B. 2002. The impact of incarceration on wage mobility and inequality. Am. Sociol. Rev. 67:526–546 Western B. 2006. Punishment and Inequality in America. New York: Russell Sage Found. Western B, Pettit B, Guetzkow J. 2002. Black economic progress in the era of mass imprisonment. See Mauer & Chesney-Lind 2002, pp. 165–80 Wildeman C. 2007. Paternal incarceration, the prison boom, and the concentration of childhood disadvantage. Presented at Annu. Meet. Popul. Assoc. Am., New York, March 29–31 Zernike K. 2006. Report faults prisons bureau on chemicals. NY Times, April 5, p. 14 Zoellner T. 2000. Phone woes take toll on inmates: meltdown leads to costly calls from S.F. County jail. San Francisco Chronicle, July 31, p. A17


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The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews Mark W. Lipsey1 and Francis T. Cullen2 1

Institute for Public Policy Studies, Vanderbilt University, Nashville, Tennessee 37212; email: [email protected]

2

Division of Criminal Justice, University of Cincinnati, Cincinnati, Ohio 45226-0389; email: [email protected]


Key Words


treatment, deterrence, sanctions, offenders, meta-analysis


Abstract The effects of correctional interventions on recidivism have important public safety implications when offenders are released from probation or prison. Hundreds of studies have been conducted on those effects, some investigating punitive approaches and some investigating rehabilitation treatments. Systematic reviews (meta-analyses) of those studies, while varying greatly in coverage and technique, display remarkable consistency in their overall findings. Supervision and sanctions, at best, show modest mean reductions in recidivism and, in some instances, have the opposite effect and increase reoffense rates. The mean recidivism effects found in studies of rehabilitation treatment, by comparison, are consistently positive and relatively large. There is, however, considerable variability in those effects associated with the type of treatment, how well it is implemented, and the nature of the offenders to whom it is applied. The specific sources of that variability have not been well explored, but some principles for effective treatment have emerged. The rehabilitation treatments generally found effective in research do not characterize current correctional practice, and bridging the gap between research and practice remains a significant challenge.

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INTRODUCTION


On any given day in the United States, over 7 million offenders are under some form of correctional supervision (1 of every 32 adults), with approximately one-third incarcerated and the remainder on probation or parole (Glaze & Bonczar 2006). Of those incarcerated, approximately 600,000 return to the community each year (Hughes & Wilson 2002, Travis 2005). These numbers reflect an unprecedented increase during recent decades (Mauer 1999, Patillo et al. 2004). In the early 1970s, state and federal prisons housed fewer than 200,000 inmates, and the rate of incarceration had remained relatively stable for the previous half-century (Blumstein & Cohen 1973, Tonry 2004). Since then the imprisonment rates in other Western industrial nations have varied—some creeping upward, others showing slippage—but the expansion in the United States has left it with a rate that is now 5 times higher than for any other Western country and 7 to 12 times higher than most (Tonry 2004, Tonry & Farrington 2005). There are complex reasons for the growth of the corrections population, but a contributing factor was, to use Tonry’s (2004) term, a changing “sensibility” about crime and what to do about it. During the late 1960s, crime became highly politicized with conservative officials proposing to restore law and order through punitive get-tough policies. This embrace of punishment as a solution to the crime problem represented a direct attack on the view that the correctional system should rehabilitate offenders (Cullen & Gilbert 1982), an ideal with a long history as the dominant correctional paradigm. The hegemony of this perspective is embodied in the very word corrections, which implies that the purpose of state intervention is to correct or reform offenders. A key moment in this general critique on rehabilitation was Lipton et al.’s (1975) study that reviewed 231 evaluations of rehabilitation programs. In Martinson’s (1974, p. 25) advance summary, he reported that, “[w]ith

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few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.” Martinson (1974, p. 48) was bold enough to ask, “Does nothing work?” The implied answer was no. Soon thereafter, this study was widely interpreted as meaning that nothing works to rehabilitate offenders (Cullen & Gendreau 2000, Cullen & Gilbert 1982). Since this time, the legitimacy of correctional treatment has hinged precariously on the question of its effectiveness; after all, if rehabilitation programs do not work, the justification for their continued use evaporates. The rehabilitation perspective embodies an assumption that the correctional system is expected to do more than exact just deserts from those who have harmed others—it is expected to reduce crime and foster public safety. To achieve this goal, correctional programs must reduce the potential for the offenders under their charge to reoffend when they are released from supervision or custody. Arguably, punitive correctional techniques might be more effective at dissuading offenders from further criminal behavior than rehabilitation treatment is for reforming them. Whether sanctions or treatment, or some combination, has the greatest effect on reoffense rates is fundamentally an empirical question. Treating it as such offers the potential for an evidence-based perspective on corrections in which offender interventions are evaluated and adopted only if they prove to inhibit criminal behavior (Cullen & Gendreau 2000, MacKenzie 2001, 2006). At present, much of what is done within corrections is not based on sound evidence but, rather, on custom, bureaucratic convenience, and political ideology with results that Latessa et al. (2002) have called “correctional quackery.”

Reviewing the Research on the Effectiveness of Correctional Interventions The purpose of this review is to assess what is known about the effects of correctional


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interventions on the recidivism of the offenders exposed to them. Those effects are not easy to ascertain. Simple recidivism rates are largely a function of the input characteristics of the respective offenders, especially risk characteristics such as prior offense history, age, and gender. The only scientifically credible method for assessing intervention effects is a research design that compares recidivism rates for offenders exposed to the intervention with those for a substantially similar control group with no exposure to it. The strongest designs assign relatively large numbers of offenders randomly to intervention and control conditions, maintain high fidelity to the intervention plan, and have little attrition from the assigned conditions or the data collection on the recidivism measures. Such true experiments can be difficult to implement for correctional interventions, and much of the available research comes from quasi-experiments with nonrandomized control groups, modest sample sizes, and varying completion and attrition rates. Hundreds of experimental and quasiexperimental studies of correctional interventions have been conducted in recent decades. Collectively they provide a large body of relevant evidence, one so large that it is not easy to summarize the patterns in their findings. A particularly comprehensive and discriminating technique for this purpose is metaanalysis, a systematic quantitative form of research synthesis that revolves around statistical effect sizes constructed to represent the differences in outcomes between intervention and control groups across multiple studies (Cooper 1998). For the recidivism outcomes of correctional interventions, the most commonly used effect size statistic is the phi coefficient—the familiar productmoment correlation coefficient applied to the relationship between a binary group variable (intervention versus control) and a binary outcome (did or did not recidivate). Metaanalysis proceeds by examining the distribution of effect sizes across studies (e.g., their

mean and variance) and their relationships with different characteristics of the studies (e.g., the type of intervention and the characteristics of the offenders). Dozens of meta-analyses have been conducted on different and sometimes overlapping subsets of the hundreds of correctional intervention studies. It is upon these metaanalyses that we mainly rely in summarizing the available evidence about the effects of correctional interventions on recidivism (see also McGuire 2002). Given the dominant influence of punitive approaches in corrections, we first consider the effects of sanctions and supervision. We then move to a more extended assessment of the effects of rehabilitation treatment.

THE EFFECTS OF SANCTIONS AND SUPERVISION ON RECIDIVISM The existence of a criminal justice system that threatens wrongdoers with arrest and punishment almost certainly causes many people to refrain from crime who, without any risk of detection and penalty, would break the law (Doob & Webster 2003, Levitt 2002). Our focus here, however, is not on the nature and effects of that general deterrent effect but, rather, on what is often called specific deterrence—whether the punishment offenders receive is effective in reducing their subsequent criminal behavior. Two types of research are particularly relevant to this question: evaluations of deterrence-oriented corrections programs and assessments of the effects of prison-term length. It is instructive that both literatures support the conclusion that punishment has little or no effect on recidivism (Akers & Sellers 2004, Cullen et al. 2002). First, a number of deterrence-oriented correctional interventions aimed at increasing the punishment or control experienced by offenders have been evaluated. Perhaps the most instructive is the research on

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intensive supervision programs (ISPs) in which parolees or probationers are placed in small caseloads, face regular and unannounced visits by supervising officers, and are threatened with revocation and incarceration if they misbehave. In a now-classic study, Petersilia & Turner (1993) examined ISPs across 14 sites using random-assignment experimental designs. They found no reductions in recidivism at any of the 14 sites, and in fact, the overall one-year recidivism rate for offenders in the ISPs was higher than for those in the probation-as-usual control groups (37% versus 33%). Several meta-analyses have examined studies of the effects of increased supervision or other intermediate sanctions on recidivism in comparison to lesser or no supervision or sanctions. Table 1 summarizes their results. To facilitate comparison, we have converted the reported mean effect sizes to phi coefficients when some other effect size statistic was used by the analyst, with negative values indicating a reduction in recidivism relative to control conditions. To make the magnitude of the recidivism effects more interpretable, we also present a standardized index that shows the corresponding percentage change in recidivism. That index assumes a 0.50 recidivism rate in the average control group and converts the phi coefficient to the equivalent proportionate reduction in that rate for the average intervention group. A phi coefficient of −0.10, for instance, corresponds to a reduction from a 0.50 to a 0.40 recidivism rate, a 20% decrease (0.10/0.50). As Table 1 indicates, the meta-analyses that have focused on the effects of probation and parole supervision compared with no supervision, or more intensive supervision compared with regular supervision, have found modest favorable effects, ranging from 2% to 8% reductions in recidivism. Pearson et al.’s (1997) meta-analysis, which reported the largest effect, however, also included group homes in their analysis. More metaanalyses have reported on various groupings of intermediate sanctions that may include


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supervision but also encompass fines, restitution contracts, prison visitation, and other such specific deterrence-oriented interventions. Their findings for mean effects on recidivism range widely, from 8% reductions to 26% increases. In general, these findings do not provide consistent support for the view that correctional supervision or intermediate sanctions are especially effective in reducing the recidivism of the offenders to whom they are applied. Similarly, an interesting and popular deterrence-type program covered in the meta-analyses summarized in Table 1 is one that attempts to reform offenders, especially juveniles, through a tough love approach. The main examples are prison visitation programs and boot camps. Petrosino et al.’s (2003, p. 41) meta-analysis of Scared Straight and similar programs revealed that “the intervention on average is more harmful to juveniles than doing nothing.” That meta-analysis and another by Aos et al. (2001) found that the increases in recidivism produced by these programs were substantial. Similarly, MacKenzie et al.’s (2001) meta-analysis of boot-camp programs for juveniles and adults reported that these interventions had no overall effect on recidivism. For juveniles, Aos et al. (2001) found a mean increase in recidivism. A second area of research has examined the impact of prison sentences on recidivism. As Levitt (2002, p. 443) noted, “it is critical to the deterrence hypothesis that longer prison sentences be associated with reductions in crime.” However, the results are not supportive of the view that incarceration dissuades offenders from reoffending after they are released. Sampson & Laub’s (1993) longitudinal study using the Gluecks’ Boston-area data showed that imprisonment increased recidivism by weakening social bonds (e.g., decreased job stability). Using a matched sample of felony offenders in California, Petersilia et al. (1986) found that those sent to prison had higher recidivism rates than those placed on probation. More recently, Spohn & Holleran (2002) found a similar result for

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Table 1

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Meta-analyses of the effects of sanctions and supervision on recidivism

Meta-analysis report

Type of intervention

Mean effect sizea (N)

Change in recidivismb


Supervision Pearson et al. 1997

Community supervision (adults): ordinary probation and parole, intensive supervision probation and parole, group homes

–0.04 (52)

–8%

Lipsey & Wilson 1998

Ordinary probation and parole, intensive supervision probation and parole, restitution (juveniles)

–0.04c (22)

–8%

Aos et al. 2001

Intensive probation or parole supervision (juveniles)

–0.02c (20)

–4%

Aos et al. 2001

Intensive probation or parole supervision (adults)

–0.01c (22)

–2%

Andrews et al. 1990

Criminal sanctions (juveniles and adults): regular processing versus diversion, more versus less severe dispositions, restitution contracts

+0.07 (16)

+14%

Petrosino 1997

Deterrence (juveniles and adults): intensive supervision versus traditional parole or probation, arrest versus police mediation

0.00 (23)

0%

Cleland et al. 1997

Criminal sanctions (juveniles): variations in supervision intensity, fines, criminal justice processing, or other specific deterrents

–0.04 (61)

–8%

Cleland et al. 1997

Criminal sanctions (adults): variations in supervision intensity, fines, criminal justice processing, or other specific deterrents

–0.02 (83)

–4%

Smith et al. 2002

Intermediate sanctions (juveniles and adults): intensive supervision, arrest, fines, restitution, boot camps, Scared Straight, drug testing, electronic monitoring

–0.01 (74)

–2%


Prison visitation, shock incarceration (juveniles)

+0.01c (6)

+2%

Aos et al. 2001

Prison visitation, Scared Straight (juveniles)

+0.06c (8)

+12%

Petrosino et al. 2003

Prison visitation, Scared Straight (juveniles)

+0.13 (9)

+26%

Pearson et al. 1997

Incarceration and punishment (adults): mostly prison or jail sentences

+0.02 (26)

+4%

Smith et al. 2002

Longer versus shorter prison sentences (juveniles and adults)

+0.03 (26)

+6%

Smith et al. 2002

Incarceration versus community supervision (juveniles and adults)

+0.07 (31)

+14%

Villettaz et al. 2006

Custodial versus noncustodial sentences (juveniles and adults)

+0.02 (5)

+4%

MacKenzie et al. 2001

Boot camps (juveniles and adults)

Aos et al. 2001

Boot camps (juveniles)

Aos et al. 2001

Boot camps (adults)

Intermediate sanctions

Confinement

0.00 (44)

0%

+0.05c (10)

+10%

0.00c (22)

0%

a

Phi coefficient; unweighted mean when available. A negative sign means less recidivism for the intervention condition. Cohen’s d effect sizes √ converted to phi as phi = d / 4 + d 2 ; odds ratios converted to d as d = Log(OR)/2, then d converted to phi (this gives the phi that occurs with a 0.50 control recidivism and the given odds ratio). b Difference between the recidivism rate for the intervention and a control recidivism rate assumed to be 0.50 that corresponds to the given effect size. c Weighed or adjusted for methodological quality. www.annualreviews.org • Correctional Rehabilitation

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a sample from Jackson County, Missouri. Studies from Canada (Smith 2006) and the Netherlands (Nieuwbeerta et al. 2006) also show a criminogenic effect of imprisonment. As might be anticipated, none of the metaanalyses of studies of this sort (summarized in Table 1) found mean recidivism reductions for correctional confinement. The two meta-analyses that found essentially zero effects focused on boot camps, which feature relatively short-term custodial care. Those summarizing studies of incarceration compared with community supervision, or longer prison terms compared with shorter ones, all found that the average effect was increased recidivism. Methodologically rigorous studies of the effects of incarceration are especially difficult to conduct—random assignment of convicted offenders to either prison or a nonprison alternative is not generally viewed as an acceptable sentencing procedure. The quasi-experimental studies that address this issue, however, use varied methods with different strengths and weaknesses. It is notable that no systematic synthesis of that research finds generally favorable effects on recidivism. In sum, research does not show that the aversive experience of receiving correctional sanctions greatly inhibits subsequent criminal behavior. Moreover, a significant portion of the evidence points in the opposite direction—such sanctions may increase the likelihood of recidivism. The theory of specific deterrence inherent in the politically popular and intuitively appealing view that harsher treatment of offenders dissuades them from further criminal behavior is thus not consistent with the preponderance of available evidence. If, among their other purposes, correctional interventions are expected to have a net positive effect on public safety by reducing the reoffense rates of convicted offenders, reliance on punitive approaches does not appear to be sufficient for the task.


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THE EFFECTS OF REHABILITATION TREATMENT ON RECIDIVISM Rehabilitation treatment is distinguished from correctional sanctions by the centrality of interactions with the offenders aimed at motivating, guiding, and supporting constructive change in whatever characteristics or circumstances engender their criminal behavior or subvert their prosocial behavior. It is typically provided in conjunction with some form of sanction (e.g., incarceration or probation) but is not defined by that sanction and, in principle, could be delivered without any accompanying sanction. Cognitivebehavioral therapy, for instance, involves exercises and instruction designed to alter the dysfunctional thinking patterns exhibited by many offenders [e.g., a focus on dominance in interpersonal relationships, feelings of entitlement, self-justification, displacement of blame, and unrealistic expectations about the consequences of antisocial behavior (Walters 1990)]. Hundreds of studies of the effects of various rehabilitation treatments on recidivism have been conducted with both juvenile and adult offenders in community-based and residential correctional programs. The findings of those studies, in turn, have been examined in numerous meta-analyses. Some of these overlap in the studies they cover, and some researchers have contributed more than one meta-analysis. At the same time, there is considerable diversity in the meta-analytic approaches and techniques used and the potential for different meta-analyses to reach different conclusions. Our purpose here is to take a broad overview of virtually all the existing meta-analyses on rehabilitation treatments as a way to appraise the current state of evidence about their effectiveness for reducing recidivism. The most general result available from these meta-analyses is an estimate of the overall mean effect size across diverse samples of studies of different rehabilitation treatments

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Table 2

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Meta-analyses of the effects of rehabilitation treatment generally on recidivism



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Age of offenders

Treatment setting



Garrett 1985

Juveniles

Residential

–0.05c (19)

–10%

Whitehead & Lab 1989

Juveniles

Community and residential

–0.12d (50)

–24%

Andrews et al. 1990

Juveniles and adults Juveniles Adults Juveniles and adults Juveniles and adults

Community and residential Community and residential Community and residential Community Residential

–0.10 (88) –0.10 (70) –0.11 (18) –0.11 (68) –0.07 (20)

–20% –20% –22% –22% –14%

Petrosino 1997

Juveniles and adults Juveniles Adults

Community and residential Community and residential Community and residential

–0.10e (115) –0.12e (55) –0.07e (53)

–20% –24% –14%

Cleland et al. 1997



–0.08 (515) –0.08 (288) –0.07 (227)

–16% –16% –14%


Juveniles Juveniles

Community Residential

–0.13f (117) –0.07f (83)

–26% –14%

Illescas et al. 2001



–0.17g (22) –0.19g (13) –0.10g (15)

–34% –38% –20%

Latimer et al. 2003

Juveniles

Community and residential

–0.09 (156)

–18%

a

Phi coefficient; unweighted mean when available. A negative sign means less recidivism for the intervention condition. Cohen’s d effect sizes √ converted to phi as phi = d / 4 + d 2 ; odds ratios converted to d as d = Log(OR)/2, then d converted to phi (this gives the phi that occurs with a 0.50 control recidivism and the given odds ratio). b Difference between the recidivism rate for the intervention and a control recidivism rate assumed to be 0.50 that corresponds to the given effect size. c Subset with random or matched designs and recidivism outcomes. d Computed from Table 1. e Randomized studies only. f Unweighted means computed from original data. g European studies; subset with controls.

applied to general offender samples. Table 2 summarizes the major meta-analyses that focus on recidivism outcomes for adjudicated offenders. As shown in Table 2, every one of these meta-analyses found mean effect sizes1 favorable to treatment, and none found less than a 10% average reduction in recidivism.

1

For statistical analysis, effect sizes are often weighted by a term reflecting the size of the sample on which they are based. For rehabilitation studies, however, sample size is often correlated with other study characteristics, e.g., methodological quality and how well the treatment was implemented. To avoid adjusting inappropriately for these other characteristics, we report the unweighted effect size means in Table 1 whenever available.

Most of their mean effect sizes represent recidivism reductions in the 20% range, varying upward to nearly 40%. It is especially notable that there is no overlap in the range of mean effect sizes found in meta-analysis of rehabilitation treatment and that found for meta-analyses of the effects of sanctions and supervision (Table 1). The smallest mean recidivism effect size found in any metaanalysis of a general collection of rehabilitation studies is bigger than the largest one found in any meta-analysis of the effects of sanctions. More meta-analysis has been completed on treatment for juveniles than for adults, www.annualreviews.org • Correctional Rehabilitation

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making it difficult to assess whether the effects are comparable. Three of the four broad meta-analyses that cover both (Cleland et al. 1997, Illescas et al. 2001, Petrosino 1997) found larger effects for juveniles, although the differences are slight in two cases. None of the three, however, explored differences in the nature and quality of the treatments provided to juveniles in comparison to adult offenders or, conversely, the differential responsiveness of juveniles and adults to similar treatments. On balance, therefore, we have less synthesis of rehabilitation research for adult offenders and, correspondingly, less ability to examine the robustness of the findings across multiple analyses. Table 2 also differentiates, where possible, the average findings for community-based treatment for offenders under probation or parole supervision and treatment in residential settings for incarcerated offenders. This distinction also has not been explored fully. Favorable effects from treatment are found in both settings, but in the two meta-analyses that break out separate results (Andrews et al. 1990, Lipsey & Wilson 1998), the mean effect sizes for community-based treatment are larger than those for residential treatment. Neither addresses the question of whether this difference is associated with differences in the nature or quality of the treatment, the characteristics of the offenders treated in these different settings, or the influence of these quite different contexts on the treatment effects. Skeptics might question whether the broadly positive average effects of rehabilitation treatments found in the studies included in these meta-analyses actually reflect the benefits of treatment or some equally broad and pervasive upward bias in the effect estimates generated by those studies. One such possible bias that is well known to meta-analysts is the tendency for published studies to show larger effects than unpublished ones, presumably because of the selection processes associated with the development, submission, and review of manuscripts for journal publica-


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tion (Rothstein et al. 2005). Mean effect sizes from meta-analyses that include only published studies, or which greatly overrepresent them, may thus be inflated. This is an unlikely explanation for the findings in Table 2, however. Most of the meta-analyses in Table 2 include unpublished studies, which, even if underrepresented, should diminish the influence of publication bias on their results. In addition, direct comparisons between the mean effect sizes for published and unpublished studies appear in some meta-analyses of specific treatments (we discuss these more fully below). A few of these do find larger effects reported in published studies (Gallagher et al. 1999, Landenberger & Lipsey 2005, Reitzel & Carbonell 2006), but others find the reverse (Illescas et al. 2001, Wilson et al. 2006) or differences going both ways (Mitchell et al. 2006). In all cases, however, the unpublished studies also show mean positive effects, and the differences between published and unpublished studies are not large enough to account for the generally positive overall effects. This is perhaps not surprising in a research area in which, historically, finding and reporting no difference have not been viewed as uninteresting, and indeed, at one time were almost normative. Another possible source of broad bias in the findings of rehabilitation studies relates to the quality of the research designs, in particular whether the treatment and control groups are created through random assignment in a true experimental design. Random assignment is not always feasible in criminal justice settings, and many studies use weaker quasi-experimental designs in which control groups are selected from convenient groups of untreated offenders, usually with some attempt to match relevant background characteristics. Quasi-experimental studies are not automatically biased, but they are vulnerable to bias stemming from initial uncontrolled differences between the comparison groups that then carry forward to produce differences on the outcome measures that mimic treatment effects. If such bias occurs


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and, furthermore, tends to be in the same direction across different quasi-experimental studies, the mean effects found in those studies would accordingly underestimate or overestimate the actual treatment effects. Weisburd et al. (2001), for instance, examined the studies in the Maryland report on what works in crime prevention (Sherman et al. 1997) and found that studies with weaker designs were more likely to report favorable intervention effects than those with stronger designs. If the large number of quasi-experimental studies of rehabilitation effects is similarly biased, this might account for the generally positive effects summarized in Table 2 (see also Farabee 2006). Table 3

Many meta-analyses of rehabilitation have investigated this source of possible bias by looking at the relationship between effect sizes and the methodological quality of the studies that generated them, especially with regard to the use of randomized or nonrandomized designs. Table 3 summarizes their findings, indicating whether larger effect estimates were found for the studies with stronger designs, weaker designs, or neither (phi coefficients equal to within ± 0.01). In some cases there were fairly large differences, in others relatively small, but overall there was little indication of a consistent bias. In particular, the mean effect sizes from nonrandomized studies, or those judged to have

Meta-analyses that compare effects from weaker and stronger research designs

Meta-analysis report (intervention)

Mean effect size for weaker

Mean effect size for stronger

designsa (N)

designsa (N)

Favors

(42b )

–0.10 (38b )

Neither

Andrews et al. 1990 (mixed)

–0.11

Dowden et al. 2003 (relapse prevention)

–0.13 (18b )

–0.21 (6b )

Stronger

Feder & Wilson 2005 (batterers)

+0.07 (4)

–0.13 (7)

Stronger

Gallagher et al. 1999 (sex offenders)

–0.22 (23)

–0.44 (3)

Stronger

Hanson et al. 2002 (sex offenders)

–0.12 (17)

+0.01 (3)

Weaker

Latimer 2001 (family)

–0.18 (19b )

–0.10 (16b )

Weaker

¨ & Schmucker 2005 (sex offenders) Losel

–0.15 (23)

–0.10 (6)

Weaker

MacKenzie et al. 2001 (boot camps)

–0.01 (39)

+0.07 (5)

Weaker

Mitchell et al. 2006 (counseling)

–0.11 (23)

–0.02 (2)

Weaker

Mitchell et al. 2006 (drug relapse)

–0.04 (18)

–0.22 (2)

Stronger

Mitchell et al. 2006 (therapeutic community)

–0.07 (28)

–0.16 (2)

Stronger

Pearson et al. 2002 (behavioral)

–0.10 (61)

–0.21 (7)

Stronger

Illescas et al. 2001 (mixed)

–0.17 (19)

–0.02 (3)

Weaker

Wilson & Lipsey 2000 (challenge programs)

–0.10c (13)

–0.09c (9)

Neither

Wilson et al. 2000 (vocational)

–0.11 (50)

–0.10 (3)

Neither

Wilson et al. 2005b (boot camps)

–0.01 (39)

+0.02 (4)

Weaker

Wilson et al. 2006 (drug courts)

–0.12 (49)

–0.13 (5)

Neither

Correlations and regression coefficients Cleland et al. 1997 (mixed)

Regression coefficient for random = −0.025

Weaker

Dowden & Andrews 1999 (female offenders)

Partial correlation for random = –0.10

Weaker

Landenberger & Lipsey 2005 (cognitive-behavioral)

Correlation for random = 0.04

Stronger

√ Phi coefficient; a negative sign means less recidivism for the intervention condition. Cohen’s d effect sizes converted to phi as phi = d / 4 + d 2 ; odds ratios converted to d as d = Log(OR)/2, then d converted to phi. b Estimated. c Computed from table 7 in Wilson & Lipsey (2000). a

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weaker designs, were sometimes found to be larger, sometimes smaller, and sometimes substantially the same as those from randomized studies. The high proportion of quasiexperimental studies among those investigating rehabilitation effects, therefore, surely adds variability to the effect estimates but, overall, does not appear to bias them in one direction or the other. In this regard, the systematic difference in the mean outcomes of the studies of sanctions and treatments mentioned above (Tables 1 and 2) is informative. Studies of sanctions, especially regular and intensive supervision and intermediate sanctions such as restitution and boot camps, use a mix of experimental and quasi-experimental designs similar to those used to study treatment. Any pervasive bias associated with the inclusion of studies with weaker research designs in metaanalyses of treatment studies should similarly bias the meta-analysis results for sanctions. The dramatically larger effect sizes found for treatment under these circumstances are thus difficult to attribute entirely to methodological bias. Similarly, many of the meta-analyses of sanctions and treatment include comparable mixes of published and unpublished studies. Indeed, in some cases the results for these different interventions are breakouts from the same overarching meta-analyses and thus involve similar literature search strategies and inclusion criteria. Whatever publication bias is present, therefore, should affect both sets of studies and cannot by itself explain the substantially larger effects found for treatment. The global question of whether rehabilitation treatment works is thus answered affirmatively by the favorable mean effects on recidivism found by every meta-analyst who has conducted a systematic synthesis of a broad sample of the available experimental and quasi-experimental research. No general bias in the findings of that research or the meta-analyses that summarize them has yet been demonstrated which is sufficient to negate the overall positive findings. It is the


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case, however, that the available research is unevenly distributed and synthesized. Treatment effects for juvenile offenders have been more thoroughly analyzed and documented than for adult offenders, and possible differential effects of treatment in community and residential settings have not been well explored. These are matters of practical importance to the juvenile and criminal justice system policy makers responsible for rehabilitation programs, and they warrant more attention from researchers.

The Importance of the Large Variability in Rehabilitation Effects Knowing the average effects of rehabilitation treatment has little specific practical or theoretical value unless all treatments produce essentially that average effect. That is most decidedly not what has been found for rehabilitation treatments. One of the most general and striking findings of research on this topic is the great variability of the recidivism effects across different treatments and different studies. Within any broad sample of studies, one finds many near-zero and even negative effect sizes at one end of the effect size distribution, whereas the other end extends to impressively large effects representing reductions in recidivism of 50% and higher. A certain amount of that variability, of course, reflects only statistical noise and unsystematic differences in study methods and procedures. However, much of it is related to substantive characteristics of the treatments and the offender samples to which they are applied (Wilson & Lipsey 2001). The most important challenge for contemporary rehabilitation research is to identify the factors that most influence the likelihood of positive treatment effects. Such knowledge is needed to support the design of optimally effective treatment in practice settings and to guide theory toward a better understanding of the change mechanisms through which offender behavior can be altered. Research to date has been dominated by issues of whether anything works, with

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relatively little attention to questions of what works best, for whom, under what circumstances, and why. In the sections that follow, we review the limited insight that current research provides into such matters. Type of treatment and the magic bullet hypothesis. In some human service areas, different treatment approaches within the broad mainstream of practice seem to produce relatively similar effects. For instance, relatively modest differences have been found between the effects of different intervention modalities for school-violence prevention programs (Wilson et al. 2003a). Rehabilitation programs for offenders, in contrast, show marked differentiation in the effects of different types of treatment. Table 4 summarizes the meta-analysis research on the effects of relatively specific treatments and treatment approaches. It is sequenced to keep results for the same or similar interventions together while ordering them roughly from the largest mean effect sizes to the smallest. These mean effect sizes range from a near-zero recidivism reduction (with one showing an increase in recidivism) to values representing more than 50% reductions. Focusing on specific treatments means that many of these findings are based on a small number of studies and thus are not stable, but even allowing for that, the range of mean effect sizes is quite remarkable. One thing to note about the findings in Table 4, incidentally, is the further support they give to the positive effects of rehabilitation treatment. Despite many differences between studies, when the results of those investigating any given therapeutically oriented treatment are averaged together, the results are positive in the vast majority of cases. The only instances of treatment showing zero effects on recidivism, or recidivism increases, are for small sets of studies classified by Garrett (1985) as involving behavioral or psychodynamic treatment. Two later meta-analyses that used a behavioral classification both found positive effects on

recidivism (Gottshalk et al. 1987, Pearson et al. 2002) in contrast to the negative effect Garrett reported. There is thus little indication of treatment ineffectiveness in these results and a near universal indication that most of the rehabilitation treatments with sufficient research to be included in a metaanalysis are effective. Moreover, those treatments that show the largest average effects tend to be those based on better developed theory and research about their approach to bringing about change—for example, multidimensional treatment foster care, multisystemic therapy, family therapy, treatment for sex offenses, and cognitive-behavioral therapy. Although the type of treatment clearly matters in relation to recidivism effects, it is not clear what accounts for those effects in the different treatment types. Rehabilitation treatments of a given type do not generally follow a common well-defined treatment protocol. Research-based manualized programs, such as multisystemic therapy and functional family therapy, have that character, but they are not typical of the programs represented in the research literature. Much of the available research involves more generic treatment types, such as family counseling or vocational training, which vary from provider to provider. Moreover, treatment elements are often mixed and combined in varied ways (e.g., drug-education classes combined with individual counseling and vocational training). Most revealing, perhaps, is that even for a relatively well-defined program type, different studies of different program implementations show variable effects. Virtually all the meta-analyses summarized in Table 4 that examined the variation in effect sizes across studies found significant heterogeneity. Programs that, on average, show relatively large effects nonetheless produce small effects in some instances, and generally weaker programs sometimes show large effects. Factors other than the type of treatment, therefore, must be influencing the effects actually www.annualreviews.org • Correctional Rehabilitation

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Treatment



Andrews et al. 1990

Appropriate: behavioral and social-learning treatment addressing risk and needs (juveniles and adults)

–0.30 (39)

–60%


Interpersonal skills (juveniles)

–0.18c (6)

–36%

Aos et al. 2001

Multidimensional treatment foster care (juveniles)

–0.18c (2)

–36%

Curtis et al. 2004

Multisystemic therapy (juveniles)

–0.24 (7)

–46%

Aos et al. 2001


–0.15c (3)

–30%

Littell et al. 2005


–0.08 (5)

–16%


Multimodal (juveniles)

–0.14c (23)

–28%


Teaching family home (juveniles)

–0.16c (6)

–32%

Woolfenden et al. 2002

Family and parenting (juveniles)

–0.27 (5)

–52%

Latimer 2001

Family intervention (juveniles)

–0.15 (35)

–30%


Family counseling (juveniles)

–0.13c (8)

–26%

Aos et al. 2001

Family therapy (juveniles)

–0.10c (13)

–20%


Individual counseling (juveniles)

–0.16c

–32%

Garrett 1985

Life skills (juveniles)

–0.15 (3)

–30%

Dowden & Andrews 1999

Programs for females (juveniles and adults)

–0.14 (26)

–28%

Reitzel & Carbonell 2006

Programs for sex offenders (juveniles)

–0.24 (9)

–46%

Gallagher et al. 1999

Programs for sex offenders (juveniles and adults)

–0.18 (26)

–36%

Hanson et al. 2002


–0.14 (31)

–28%

¨ & Schmucker 2005 Losel


–0.13 (49)

–26%

Hall 1995


–0.12 (12)

–24%

Aos et al. 2001

Programs for sex offenders (juveniles)

–0.06c (5)

–12%

Aos et al. 2001

Cognitive-behavioral therapy for sex offender (adults)

–0.05c (7)

–10%

Wilson et al. 2005a

Cognitive-behavioral therapy (juveniles and adults)

–0.16 (11)

–32%

Dowden et al. 2003

Relapse prevention (juveniles and adults)

–0.15 (24)

–30%

Pearson et al. 2002


–0.14 (44)

–28%

Landenberger & Lipsey 2005


–0.11 (58)

–22%

Aos et al. 2001

Aggression replacement training (juveniles)

–0.09c (4)

–18%

Aos et al. 2001

Cognitive-behavioral therapy (adults)

–0.04c

–8%

Tong & Farrington 2006

Reasoning and rehabilitation cognitive-behavioral therapy (juveniles and adults)

–0.04 (15)

–8%

¨ 1995 Losel

Social-therapeutic prisons (adults)

–0.12 (11)

–24%

Pearson et al. 1997

Milieu therapy (adults)

–0.12 (16)

–24%

(16)

(14)

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Treatment



Milieu therapy (juveniles)

–0.06c

(3)

–12%

Pearson et al. 1998

Challenge programs (juveniles and adults)

–0.15 (12)

–30%

Wilson & Lipsey 2000

Challenge programs (juveniles)

–0.09 (22)

–18%


Challenge programs (juveniles)

–0.05c (9)

–10%

Nugent et al. 2003

Victim-offender mediation (juveniles)

–0.09 (15)

–18%

Wilson et al. 2006

Drug courts (juveniles and adults)

–0.12 (50)

–24%

Lowenkamp et al. 2005

Drug courts (juveniles and adults)

–0.07 (22)

–14%

Aos et al. 2001

Drug courts (adults)

–0.04c (27)

–8%

Pearson et al. 1997

Drug and alcohol treatment (adults)

–0.10 (41)

–20%

Mitchell et al. 2006

Drug treatment (juveniles and adults)

–0.08 (52)

–16%

Pearson & Lipton 1999b

Programs for drug abusers (juveniles and adults)

–0.07 (20)

–14%


Drug treatment (juveniles)

–0.05c (5)

–10%

Aos et al. 2001

Therapeutic community (adults)

–0.03c (16)

–6%

Aos et al. 2001

Drug treatment (adults)

–0.02c (27)

–4%


Behavioral programs (juveniles)

–0.20c (9)

–40%

Pearson et al. 2002

Behavioral and incentive programs (juveniles and adults)

–0.07 (23)

–14%

Gottshalk et al. 1987


–0.06 (14)

–12%

Garrett 1985


0.04 (6)

+8%


Social casework (juveniles)

–0.07c (6)

–14%

Feder & Wilson 2005

Programs for batterers (adults)

–0.06 (9)

–12%

Pearson et al. 1997

Group counseling (adults)

–0.06 (17)

–12%


Group counseling, guided group (juveniles)

–0.04c

Wilson et al. 2000

Educational, vocational, and work programs (adults)

–0.10 (53)

–20%

Pearson & Lipton 1999a

Educational and vocational programs (juveniles and adults)

–0.05 (72)

–10%

Aos et al. 2001

Education, vocational, and employment programs (adults)

–0.03c (16)

–6%

Visher et al. 2005

Employment programs (adults)

–0.01 (10)

–2%


Vocational and employment programs (juveniles)

0.00c (10)

0%

Garrett 1985

Psychodynamic treatment (juveniles)

0.00 (10)

0%

(25)

–8%

a

Phi coefficient; unweighted mean when available. A negative sign means less recidivism for the intervention condition. Cohen’s d effect sizes √ converted to phi as phi = d / 4 + d 2 ; odds ratios converted to d as d = Log(OR)/2, then d converted to phi (this gives the phi that occurs with a 0.50 control recidivism and the given odds ratio). b Difference between the recidivism rate for the intervention and a control recidivism rate assumed to be 0.50 that corresponds to the given effect size. c Weighted or adjusted for methodological quality.

achieved; no programs or program types have been identified that consistently produce positive effects. The main implication of this situation is that effective programs cannot be defined adequately in terms of the type of

treatment they represent. It follows that the widespread model-program lists and rankings of named programs and program types that identify them this way can, at best, provide only general guidance for effective programs. www.annualreviews.org • Correctional Rehabilitation

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It is simply not consistent with the research evidence to view rehabilitation programs as well-defined magic bullets, the right one of which, if found, will have a big impact on recidivism. An alternative perspective more consistent with the nature of the variability found in treatment effects is to characterize more and less effective programs in terms of treatment principles. From this perspective, we ask not what program packages are most effective, but what characteristics are common to effective programs. Unfortunately, neither current research nor meta-analysis of that research is sufficiently differentiated to provide good empirical guides to effective program principles. Moreover, whatever theory underlies the different treatment approaches is also not generally well developed enough to support much conceptual analysis of similarities and differences. Andrews and his colleagues have gone the furthest in attempting to delineate the principles that characterize effective rehabilitation treatments (Andrews 1995, Andrews et al. 1990, Gendreau 1996). With regard to the nature of the treatment provided, they describe a need principle and a responsivity principle that are associated with the likelihood of positive effects (they also advanced a risk principle, which we address below). According to the need principle, treatment has larger effects if it addresses the criminogenic needs of the offender—those dynamic risk factors predictive of subsequent criminal conduct. Criminogenic needs include antisocial attitudes and peer associations, lack of selfcontrol and self-management skills, drug dependencies, and other such malleable characteristics associated with criminal offense rates. The responsivity principle, in turn, identifies effective treatment as that which is generally capable of actually bringing about change in the targeted criminogenic needs and which is specifically matched to the learning styles and characteristics of the offenders treated. This principle skates on the edge of circularity— effective treatment is that which is capable


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of affecting risk factors for recidivism; treatment that changes those risk factors is effective. Andrews et al. escape this circularity by drawing on a large body of research and theory about behavioral change to define responsive treatments as those that use the cognitive-behavioral and social-learning approaches shown to be generally effective in influencing a variety of behaviors. Fundamentally, then, the responsivity principle claims that there are larger effects from treatments that provide learning and skill-building experiences aimed at changing specific problem behaviors through such techniques as practice, role playing, modeling, feedback, verbal guidance, and reinforcement. In a series of meta-analyses, Andrews et al. have shown that studies of interventions they judge as conforming to their need and responsivity principles do indeed show considerably larger effects on recidivism than those that do not (Andrews et al. 1990, Andrews & Bonta 2006, Gendreau et al. 2006). In one recent meta-analysis, for instance, they showed that programs that departed from the need, responsivity, and risk principles had a mean effect size in the vicinity of zero, whereas those that embodied those principles achieved an effect size of phi = 0.26, equivalent to a recidivism reduction of approximately 50% (Andrews & Bonta 2006, p. 335). Few other primary researchers or meta-analysts have explored these treatment principles or proposed any alternatives [Cleland et al. (1997) are an exception among the meta-analysts]. The general notion that rehabilitation treatment is effective to the extent that it targets malleable risk factors for recidivism and uses techniques that, in fact, induce positive change in those risk factors is plausible and consistent with the evidence on effective treatments. It has many testable implications for the variables that should mediate recidivism reductions (criminogenic risk factors), the matching of treatment with offender characteristics according to their particular risk factors, and the differential effectiveness of different approaches.


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The critical importance of treatment implementation and integrity. A major source of variability in the treatment effects on the offenders’ recidivism relates to how well the treatment program is implemented. Implementation has several facets. One is simply whether the treatment delivered is the treatment intended, a matter of treatment integrity or fidelity. Therapists may, for instance, substitute their own preferred treatment techniques for those prescribed by the rehabilitation program. Or, a poor quality version of the treatment may be delivered by poorly trained or unmotivated providers. Another facet of implementation is dosage—the amount of treatment offered and received. The strength of an otherwise effective treatment may be diminished if too little is offered (e.g., five sessions are provided when ten are required to have good effects). It may also be undermined by the lack of participation by the offenders being served if they are present but not engaged, have poor attendance at treatment events, or drop out before completing treatment. It is a truism that a treatment that is not delivered cannot have effects. What is not so obvious is how frequently treatments are poorly implemented, even in research studies, and how readily that compromises program effects. Unfortunately, the degree and quality of implementation are not well documented in most treatment-effectiveness studies. For a research synthesis to examine these factors, one must use very approximate variables to represent the nature of the implementation in each study (e.g., crude treatment completion rates, indications of any monitoring of service delivery, the number of sessions or duration, miscellaneous reports of implementation problems). Despite their coarseness, the meta-analyses that include such indicators universally find that they are strongly related to the size of the effects on recidivism (e.g., Andrews & Dowden 2005, Landenberger & Lipsey 2005, Latimer 2001, ¨ Lipsey & Wilson 1998, Losel & Schmucker 2005).

Andrews & Dowden (2005) conducted the most extensive analysis of the relationship between indicators of the integrity of treatment implementation and recidivism effect sizes. They found correlations ranging from 0.06 to 0.39, with especially revealing relationships appearing for such indicators as having a treatment manual (r = 0.24), staff trained in the treatment (r = 0.26), and clinical supervision of treatment delivery (r = 0.20). These correlations, however, are mainly based on simple indications in the research reports about whether these elements were present. It is not clear how often such information goes unreported or how much difference the extent or quality of such implementation characteristics makes to treatment effectiveness. As Gendreau et al. (1999) observed, program implementation seems to be a forgotten issue in rehabilitation research. Characteristics of the offenders. Another aspect of rehabilitation treatment that research has not explored well is the potential for differential effects for different offenders. The available research has touched on several relevant types of offender characteristics. One category relates to familiar demographic distinctions: age, gender, and ethnicity. Another has to do with the level of risk for subsequent offending—characteristics of offenders such as prior offense histories and associations with criminal peers that are predictive of the probability of recidivism. The third concerns the treatment needs of different offenders—the particular problems and circumstances that most strongly propel their criminal behavior, for example, drug addiction, poor impulse control, and unemployment. As noted earlier, few meta-analyses have directly compared the effects of treatment on juveniles versus adults, and none has done so while attempting to hold other factors constant. Those that have made age comparisons most often find at least slightly larger mean effects for juveniles (e.g., Dowden & Andrews 2000, Illescas et al. 2001, Landenberger ¨ & Lipsey 2005, Losel & Schmucker 2005, www.annualreviews.org • Correctional Rehabilitation

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Petrosino 1997), although the reverse has been found in some meta-analyses of drug treatments (Mitchell et al. 2006, Wilson et al. 2006). Gender differences have been examined even less often, in part because most treatment studies use all male or nearly all male samples. Dowden & Andrews (1999) examined a small set of studies with female samples and found a mean recidivism effect size comparable to those found elsewhere for male samples. They also showed that Andrews et al.’s (1990) principles of effective treatment (risk, need, and responsivity) were associated with better outcomes for female offenders, as had been found with predominately male samples. Racial and ethnic differences have hardly been examined at all, although for juvenile offenders Wilson et al. (2003b) showed that mainstream treatments without cultural tailoring were as effective for minority youth as for white youth. The most fully documented relationship between an offender characteristic and treatment effects is for the characteristic of reoffense risk. Among their principles of effective treatment, Andrews et al. (1990) argued that larger effects should be found for higher-risk offenders (their risk principle). Higher-risk offenders have a greater need for treatment and also have more room for improvement from effective treatment. Andrews and his colleagues have shown that there are indeed larger treatment effects for higher-risk cases for violent offenders (Dowden & Andrews 2000) and female offenders (Dowden & Andrews 1999). Similar differences have been shown in meta-analyses of community-based treatment for juveniles (Lipsey & Wilson 1998), treatment for sex offenders (Hall 1995, Reitzel & Carbonell 2006), and specific treatment types, such as cognitive-behavioral therapy (Landenberger & Lipsey 2005, Tong & Farrington 2006) and drug treatment (Lowenkamp et al. 2005). In one especially revealing research synthesis, Lowenkamp et al. (2006) analyzed recidivism effects for 97 correctional programs in Ohio that involved matched comparison


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groups and detailed risk assessments for the participating offenders. They found larger effects for treatment groups with greater overall proportions of high-risk participants and for programs that provided more units of service or longer service to those among the participants who were at higher risk. Specific treatment needs of offenders, such as substance-abuse problems, can also be conceptualized as risk factors. These represent dynamic risk factors—that is, malleable risk factors that, in principle, can be changed by effective treatment but that are predictive of subsequent offending (Andrews et al. 1990). As such, they contrast with the static risk factors that dominate most risk-assessment instruments and are not susceptible to change (e.g., characteristics of the offender’s prior offense history). They also contrast with other treatment needs offenders may have that are not related to the likelihood of subsequent offending (not criminogenic), such as selfesteem. The need principle of Andrews et al. (1990) posits that treatment that addresses these criminogenic needs or dynamic risk factors has larger effects on recidivism. In several meta-analyses, Andrews and his colleagues have categorized treatments as targeting such needs or not and have shown that this distinction is related to recidivism effects (Dowden & Andrews 1999, 2000). As noted earlier, they have also shown that “appropriate” treatment that reflects all three of their effective-treatment principles (need, risk, and responsivity) produces much larger effects than treatments judged not appropriate by these principles (Andrews & Bonta 2006, Andrews et al. 1990, Cleland et al. 1997). Somewhat analogous analyses have shown the effectiveness of targeted treatment for offenders with specific problems, such as substance abusers and sex offenders (see Table 4). Most research on rehabilitation treatments, however, is not specific about the needs the treatment is intended to address and rarely involves any explicit matching of treatment to needs. The judgments Andrews and colleagues must make to identify treatments that


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meet their need principle are thus necessarily rather broad. Moreover, for most of the relevant needs of offenders, limited research is available to indicate which treatments are most effective in addressing any specific need or frequent combinations of such needs. For diagnostic purposes, needsassessment instruments are generally less well developed than risk-assessment instruments and less widely used. The research currently available suggests generally that identifying criminogenic needs and addressing them with treatments especially effective for those needs produce relatively favorable recidivism outcomes. However, the research directly testing this proposition in all its ramifications is not sufficient for differentiating the needs most important to target or the treatments with the greatest impact on them. The next generation of research. As the discussion above indicates, there are many questions about the sources of variability in the effects of rehabilitation treatments that have not been adequately addressed by the research available to date. What research is available now firmly establishes the general point that rehabilitation works. The most important task for the next generation of research is to address the questions of when, why, and for whom it works best. The outlines for the corresponding research agenda are relatively clear. We need research that provides more detailed descriptions of the nature of the treatment and treatment components provided, and the characteristics of the offenders who receive that treatment. The critical tasks for such research are determining what aspects of treatment most facilitate positive effects and what needs, risk factors, demographic profiles, and the like relate to differential responsiveness to treatment. There is particular utility for systematic information about the differential responsiveness of females and racial minorities and the relative benefits of treatments specially tailored for them (e.g., culturally sensitive). Also important is the identification of the pathways

through which treatment has its effects—for example, the mediating changes in needs, risk factors, cognitions, and motivation that bridge between treatment and recidivism effects. With such research should come better developed theories of change that can help explain the effects of current interventions and guide efforts to create better ones. In addition, we need to know more about the dimensions of effective treatment implementation. There are strong indications in the extant research that the quality with which treatments are implemented is nearly as important as what treatments are implemented. Better information is needed, however, about the relative contributions of factors such as provider training, clinical supervision, and the monitoring of client participation to effective implementation. Research is also needed to clarify how best to conceptualize and measure treatment dosage (amount) and fidelity and their relationship to outcomes. Stated in research-design terms, the greatest need is not for more research on the main effects of treatment but, rather, for research on moderator and mediator relationships aimed at explaining differential effects.

CONCLUSION: CORRECTIONAL INTERVENTION AND PUBLIC SAFETY This review of the research evidence about the effects of correctional interventions on offender reoffense rates, as with virtually every other such review in the past 30 years, falls under the long shadow of Lipton et al.’s (1975) review and Martinson’s (1974) disparaging interpretation of the research evidence available at the time. During the intervening decades, hundreds of additional studies have been conducted, and techniques for systematically summarizing and analyzing the findings of intervention studies have advanced greatly. In particular, meta-analysis has developed as a way to conduct research reviews that makes the criteria for including and excluding studies explicit, represents study characteristics www.annualreviews.org • Correctional Rehabilitation

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systematically, captures the direction and magnitude of the empirical findings in a differentiated quantitative form, and allows for analysis of the distribution of those findings across studies with regard to the overall average and the factors related to their differences. In this review we attempt to catalog every meta-analysis conducted on studies of correctional interventions and summarize the most general and robust of their collective findings. Some of these meta-analyses have broad scope, whereas others are narrow. Some are elaborate and some are relatively simple. Some are well done and a few are rather inept. Across this diversity, however, there is striking consistency on two key points. First, every meta-analysis of studies that compare recidivism outcomes for offenders receiving greater versus lesser or no sanctions has found, at best, modest mean recidivism reductions for the greater sanctions and, at worst, increased recidivism for that condition. Second, every meta-analysis of large samples of studies comparing offenders who receive rehabilitation treatment with those who do not has found lower mean recidivism for those in the treatment conditions. Moreover, the least of those mean reductions is greater than the largest mean reductions reported by any meta-analysis of sanctions. In addition, nearly all the metaanalyses of studies of specific rehabilitation treatments or approaches show mean recidivism reductions, and the great majority of those are greater than the largest reductions found in any meta-analysis of sanctions. There are deficiencies in the underlying studies and the meta-analyses of those studies that could upwardly bias the statistical effect sizes that are at the heart of these findings. The main candidates are inflated effect estimates from poorly controlled quasi-experiments and overrepresentation of published studies, which often report larger effects than unpublished ones. Neither of these, however, is sufficient to account for the generally positive effects observed for rehabilitation treatment. Subsets of better


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controlled studies also show positive effects, and the average differences between the findings of methodologically stronger and weaker studies do not consistently favor the weaker studies. Regarding publication bias, many meta-analyses include a large proportion of unpublished studies and, when separated out, the mean effect sizes for published studies are not consistently larger than for unpublished studies. In addition, any general bias of this sort would be expected to apply to studies of sanctions as well as to rehabilitation treatment and thus cannot easily account for the dramatic difference in their findings. The preponderance of research evidence, therefore, supports the general conclusion that rehabilitation treatment is capable of reducing the reoffense rates of convicted offenders and that it has greater capability for doing so than correctional sanctions. The volume of research and the consistency of the findings of the systematic reviews make this a sufficiently sound general conclusion, bordering on beyond a reasonable doubt, to provide a basis for correctional practice and policy. The gap between this body of research and current practice and policy, however, is large and not easily bridged.

Research and Practice The research reviewed here demonstrates that there are rehabilitation treatments with the potential to substantially reduce the recidivism of offenders in the correctional system and, in that way, reduce crime and enhance public safety. That does not mean, however, that the rehabilitation programs currently being used in correctional practice actually have those salutary effects. The increased punitive emphasis of recent decades has led to less rehabilitation programming, resulting in many offenders not being exposed to any significant treatment at all (Tewksbury et al. 2000). Moreover, the types of programs used in correctional practice are not the same mix represented in the research literature. Educational and vocational programs, for instance,


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are common in correctional settings, with the latter often being no more than work assignments in a custodial setting. The treatments on which we have research, however, are more likely to have been developed from theory and prior research and to focus more directly on criminal behavior. The rehabilitation treatments on which the available research is based also differ from correctional practice in another important way. Many of the research studies involve treatments that were developed by the researcher or delivered by the researcher, for example, with the researcher or developer selecting and training the personnel and monitoring the quality of service. Treatments provided in the context of such research and demonstration projects are not necessarily representative of typical correctional practice. Nor are their results representative—the recidivism effects for treatments in which the researcher is involved are larger than those for similar treatments without such involvement (Petrosino & Soydan 2005). In one meta-analytic comparison (Lipsey 1999), the mean effect size for research and demonstration programs was twice as large as that found in evaluations of routine practice programs in which the researcher had no role in design or implementation. In short, the research on rehabilitation treatment reviewed here provides an encouraging indication of the relatively large effects that might be attainable in actual practice, but cannot be interpreted as evidence that current practice has such effects or, indeed, that it has any positive effects at all. We have too little systematic research on the nature of the rehabilitation programs that are actually in use in correctional practice to fully appraise the gap between research and practice, but there is every reason to believe it is enormous. The greatest obstacle to using rehabilitation treatment effectively to reduce criminal behavior is not a nothing-works research literature with nothing to offer but, rather, a correctional system that does not use the research available and has no history of doing so.

There are many aspects of rehabilitation treatment that are poorly understood and in need of additional research, as we note throughout this review, but the greatest challenge is the problem of technology transfer (Cullen & Gendreau 2000). This challenge is not unique to corrections. Even in the field of medicine, in which there are strong professional norms to base treatment on research evidence, the difficulty of influencing medical practice with the latest scientific knowledge has proven formidable. Nonetheless, the credibility of calls for effective correctional intervention depends on making concerted efforts to use evidence-based treatments (Cullen & Gendreau 2000, MacKenzie 2006). There is much to be done on the research side of that exchange. We need a better understanding of how to package findings about effective treatment in ways that facilitate their dissemination and application in correctional settings. We especially need a better understanding of the constraints inherent in the organizational context of correctional programs and how to tailor evidence-based treatment to those contexts in ways that make them easy to adopt and, most especially, to implement well and sustain. On the other side of the exchange, it is essential that correctional systems attend to research evidence when making decisions about how much emphasis to place on rehabilitation treatment, which programs to implement, and how to implement them in ways that ensure they are effective. That will not happen spontaneously; it will require political and legislative action, such as the recent spate of state laws mandating the use of evidence-based practice (e.g., Washington, Oregon, North Carolina). With regard to the potential for supportive political action, it is important to note that the American public is not antagonistic to offender rehabilitation. There is a widespread myth that the public harbors exclusively punitive sentiments in the domain of crime control. This view draws legitimacy from opinion polls showing that Americans endorse capital punishment, the use of “harsher courts,” and www.annualreviews.org • Correctional Rehabilitation

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prison sentences for many offenses (Cullen et al. 2000). But this is only half the story. Survey evidence across three decades reveals that Americans also embrace efforts to intervene constructively with adult offenders and, in particular, with at-risk children and juvenile delinquents (Cullen 2006; Cullen et al. 2000, 2007). This research shows that upward of 8 in 10 Americans believe that rehabilitation is an important goal of adult corrections (Cullen et al. 2000). Support for treating youngsters is nearly universal; in one study, 97% stated that rehabilitation was an important goal of juvenile prisons (Cullen et al. 2007). Furthermore, in several stud-


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ies in which respondents were asked whether the crime problem should be addressed by spending tax dollars on “early intervention programs” or on “building more prisons,” over three-fourths preferred expanded prevention efforts over the option of increasing imprisonment (Cullen et al. 2000, 2007). Taken together, these findings suggest that the American public favors a balanced approach to corrections that not only punishes but also tries to save the wayward. Indeed, clearly there is ample ideological room to implement rehabilitation programs that can be shown to improve the lives of offenders and, in so doing, enhance public safety.


LITERATURE CITED Akers RL, Sellers CS. 2004. Criminological Theories: Introduction, Evaluation, and Application. Los Angeles: Roxbury. 4th ed. Andrews DA. 1995. The psychology of criminal conduct and effective treatment. In What Works: Reducing Reoffending—Guidelines from Research and Practice, ed. J McGuire, pp. 35– 62. New York: Wiley Andrews DA, Bonta J. 2006. The Psychology of Criminal Conduct. Newark, NJ: Lexis/Nexis. 4th ed. Andrews DA, Dowden C. 2005. Managing correctional treatment for reduced recidivism: a meta-analytic review of programme integrity. Br. Psychol. Soc. 10:173–87 Andrews DA, Zinger I, Hoge RD, Bonta J, Gendreau P, Cullen FT. 1990. Does correctional treatment work? A clinically relevant and psychologically informed meta-analysis. Criminology 28:369–404 Aos S, Phipps P, Barnoski R, Lieb R. 2001. The Comparative Costs and Benefits of Programs to Reduce Crime. Olympia: Wash. State Inst. Public Policy Blumstein A, Cohen J. 1973. A theory of the stability of punishment. J. Crim. Law Criminol. 64:198–206 Cleland CM, Pearson FS, Lipton DS, Yee D. 1997. Does age make a difference? A meta-analytic approach to reductions in criminal offending for juveniles and adults. Presented at Annu. Meet. Am. Soc. Criminol., San Diego Cooper HM. 1998. Synthesizing Research: A Guide for Literature Reviews. Thousand Oaks, CA: Sage. 3rd ed. Cullen FT. 2006. It’s time to reaffirm rehabilitation: reaction essay. Criminol. Public Policy 5:665–72 Cullen FT, Fisher BS, Applegate BK. 2000. Public opinion about punishment and corrections. In Crime and Justice: A Review of Research, ed. M. Tonry, pp. 1–79. Chicago: Univ. Chicago Press 316

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Cullen FT, Gendreau P. 2000. Assessing correctional rehabilitation: policy, practice, and prospects. In Criminal Justice 2000: Policies, Processes, and Decisions of the Criminal Justice System, ed. J Horney, 3:109–75. Washington, DC: U.S. Dept. Justice, Natl. Inst. Justice Cullen FT, Gilbert KE. 1982. Reaffirming Rehabilitation. Cincinnati: Anderson Cullen FT, Pratt TC, Micelli SL, Moon MM. 2002. Dangerous liaison? Rational choice theory as the basis for correctional intervention. In Rational Choice and Criminal Behavior: Recent Research and Future Challenges, ed. AR Piquero, SG Tibbetts, pp. 279–96. New York: Routledge Cullen FT, Vose BA, Jonson CL, Unnever JD. 2007. Public support for early intervention: Is child saving a “habit of the heart?” Victims Offenders 2:1–16 Curtis NM, Ronan KR, Borduin CM. 2004. Multisystemic treatment: a meta-analysis of outcome studies. J. Fam. Psychol. 18:411–19 Doob AN, Webster CM. 2003. Sentence severity and crime: accepting the null hypothesis. In Crime and Justice: A Review of Research, ed. M Tonry, 30:143–95. Chicago: Univ. Chicago Press Dowden C, Andrews DA. 1999. What works for female offenders: a meta-analytic review. Crime Delinq. 45:438–52 Dowden C, Andrews DA. 2000. Effective correctional treatment and violent reoffending: a meta-analysis. Can. J. Criminol. 42:449–67 Dowden C, Antonowicz D, Andrews DA. 2003. The effectiveness of relapse prevention with offenders: a meta-analysis. Int. J. Offender Ther. Comp. Criminol. 47:516–28 Farabee D. 2006. Why the expansion of offender programs is premature. J. Community Correct. 16:9–10 Feder L, Wilson DB. 2005. A meta-analytic review of court-mandated batterer intervention programs: Can courts affect abusers’ behavior? J. Exp. Criminol. 1:239–62 Gallagher CA, Wilson DB, Hirschfield P, Coggeshall MB, MacKenzie DL. 1999. A quantitative review of the effects of sex offender treatment on sexual reoffending. Correct. Manag. Q. 3:19–29 Garrett CJ. 1985. Effects of residential treatment on adjudicated delinquents: a meta-analysis. J. Res. Crime Delinq. 22:287–308 Gendreau P. 1996. The principles of effective intervention with offenders. In Choosing Correctional Interventions That Work: Defining the Demand and Evaluating the Supply, ed. AT Harland, pp. 117–30. Newbury Park, CA: Sage Gendreau P, Goggin C, Smith P. 1999. The forgotten issue in effective correctional treatment: program implementation. Int. J. Offender Ther. Comp. Criminol. 43:180–87 Gendreau P, Smith P, French SA. 2006. The theory of effective correctional intervention: empirical status and future directions. In Taking Stock: The Status of Criminological Theory— Advances in Criminological Theory, ed. FT Cullen, JP Wright, KR Blevins, 15:419–46. New Brunswick, NJ: Transaction Glaze LE, Bonczar TP. 2006. Probation and Parole in the United States, 2005. Washington, DC: Bureau Justice Stat., U.S. Dept. Justice Gottshalk R, Davidson WS II, Mayer J, Gensheimer GK. 1987. Behavioral approaches with juvenile offenders: a meta-analysis of long-term treatment efficacy. In Behavioral Approaches to Crime and Delinquency: A Handbook of Application, Research, and Concepts, ed. EK Morris, CJ Braukmann, 15:389–422. New York: Plenum Hall GCN. 1995. Sexual offender recidivism revisited: a meta-analysis of recent treatment studies. J. Clin. Consult. Psychol. 63:802–9 www.annualreviews.org • Correctional Rehabilitation

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Hanson RK, Gordon A, Harris AJR, Marques JK, Murphy W, et al. 2002. First report of the collaborative outcome data project on the effectiveness of psychological treatment for sex offenders. Sexual Abuse 14:169–94 Hughes T, Wilson DJ. 2002. Reentry Trends in the United States. Washington, DC: Bureau Justice Stat., U.S. Dept. Justice Illescas SR, Sanchez-Meca JS, Genovés VG. 2001. Treatment of offenders and recidivism: assessment of the effectiveness of programmes applied in Europe. Psychol. Spain 5:47–62 Landenberger NA, Lipsey MW. 2005. The positive effects of cognitive-behavioral programs for offenders: a meta-analysis of factors associated with effective treatment. J. Exp. Criminol. 1:451–76 Latessa EJ, Cullen FT, Gendreau P. 2002. Beyond correctional quackery: professionalism and the possibility of effective treatment. Fed. Probat. 66(2):43–49 Latimer J. 2001. A meta-analytic examination of youth delinquency, family treatment, and recidivism. Can. J. Criminol. 43:237–53 Latimer J, Dowden C, Morton-Bourgon KE. 2003. Treating youth in conflict with the law: a new meta-analysis. Rep. RR03YJ-3e. Ottawa, Can.: Dept. Justice Levitt SD. 2002. Deterrence. In Crime: Public Policies for Crime Control, ed. JQ Wilson, J Petersilia, pp. 435–50. Oakland, CA: ICS Press Lipsey MW. 1999. Can rehabilitative programs reduce the recidivism of juvenile offenders? An inquiry into the effectiveness of practical programs. Va. J. Soc. Policy Law 6:611–41 Lipsey MW, Wilson DB. 1998. Effective intervention for serious juvenile offenders. In Serious and Violent Juvenile Offenders: Risk Factors and Successful Interventions, ed. R Loeber, DP Farrington, 13:313–45. Thousand Oaks, CA: Sage Lipton D, Martinson R, Wilks J. 1975. The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies. New York: Praeger Littell JH, Popa M, Forsythe B. 2005. Multisystemic Therapy for Social, Emotional, and Behavioral Problems in Youth Aged 10–17. Campbell Collab. Libr. http://www. campbellcollaboration.org/frontend.asp ¨ Losel F. 1995. The efficacy of correctional treatment: a review and synthesis of metaevaluations. In What Works: Reducing Reoffending, Guidelines from Research and Practice, ed. J McGuire, 4:79–111. New York: Wiley ¨ Losel F, Schmucker M. 2005. The effectiveness of treatment for sexual offenders: a comprehensive meta-analysis. J. Exp. Criminol. 1:117–46 Lowenkamp CT, Holsinger AM, Latessa EJ. 2005. Are drug courts effective: a meta-analytic review. J. Community Correct. 28:5–10 Lowenkamp CT, Latessa EJ, Holsinger AM. 2006. The risk principle in action: What have we learned from 13676 offenders and 97 correctional programs? Crime Delinq. 52:77–93 MacKenzie DL. 2001. Evidence-based corrections: identifying what works. Crime Delinq. 4:457–71 MacKenzie DL. 2006. What Works in Corrections? Reducing the Criminal Activities of Offenders and Delinquents. New York: Cambridge Univ. Press MacKenzie DL, Wilson DB, Kider SB. 2001. Effects of correctional boot camps on offending. Ann. Am. Acad. Polit. Soc. Sci. 578:126–43 Martinson R. 1974. What works? Questions and answers about prison reform. Public Interest 35:22–54 Mauer M. 1999. Race to Incarcerate. New York: New Press McGuire J. 2002. Integrating findings from research reviews. In Offender Rehabilitation and Treatment: Effective Programmes and Policies to Reduce Re-Offending, ed. J. McGuire, pp. 3–38. West Sussex, UK: Wiley


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Mitchell O, Wilson DB, MacKenzie DL. 2006. The Effectiveness of Incarceration-Based Drug Treatment on Criminal Behavior. Campbell Collab. Libr. http://www. campbellcollaboration.org/frontend.asp Nieuwbeerta P, Nagin DS, Blokland AAJ. 2006. The relationship between first imprisonment and criminal career development: a matched samples comparison. Presented at 2nd Annu. Workshop Criminol. Econ., Queenstown, Maryland Nugent WR, Williams M, Umbreit MS. 2003. Participation in victim-offender mediation and the prevalence of subsequent delinquent behavior: a meta-analysis. Utah Law Rev. 137:137–66 Patillo M, Weiman D, Western B, eds. 2004. Imprisoning America: The Social Effects of Mass Incarceration. New York: Russell Sage Found. Pearson FS, Lipton DS. 1999a. The effectiveness of educational and vocational programs: CDATE meta-analyses. Presented at Annu. Meet. Am. Soc. Criminol., Toronto Pearson FS, Lipton DS. 1999b. A meta-analytic review of the effectiveness of corrections-based treatments for drug abuse. Prison J. 79:384–410 Pearson FS, Lipton DS, Cleland CM. 1997. Rehabilitative programs in adult corrections: CDATE meta-analysis. Presented at Annu. Meet. Am. Soc. Criminol., San Diego Pearson FS, Lipton DS, Cleland CM, Yee DS. 1998. A review and meta-analysis of the effects of experiential challenge programs on recidivism. Pres. Annu. Meet. Am. Soc. Criminol., Washington DC Pearson FS, Lipton DS, Cleland CM, Yee DS. 2002. The effects of behavioral/cognitivebehavioral programs on recidivism. Crime Delinq. 48:476–96 Petersilia J, Turner S. 1993. Intensive probation and parole. In Crime and Justice: A Review of Research, ed. M Tonry, 17:281–335. Chicago: Univ. Chicago Press Petersilia J, Turner S, Peterson J. 1986. Prison versus Probation in California: Implications for Crime and Offender Recidivism. Santa Monica, CA: RAND Petrosino A. 1997. ‘What works?’ revisited again: a meta-analysis of randomized field experiments in rehabilitation, deterrence, and prevention. PhD diss. Rutgers, State Univ. New Jersey, Newark Petrosino A, Soydan H. 2005. The impact of program developers as evaluators on criminal recidivism: results from meta-analyses of experimental and quasi-experimental research. J. Exp. Criminol. 1:435–50 Petrosino A, Turpin-Petrosino C, Buehler J. 2003. Scared straight and other juvenile awareness programs for preventing juvenile delinquency: a systematic review of the randomized experimental evidence. Ann. Am. Acad. Polit. Soc. Sci. 589:41–62 Reitzel LR, Carbonell JL. 2006. The effectiveness of sexual offender treatment for juveniles as measured by recidivism: a meta-analysis. Sex Abuse 18:401–21 Rothstein H, Sutton AJ, Borenstein M, eds. 2005. Publication Bias in Meta-Analysis: Prevention, Assessment and Adjustments. New York: Wiley Sampson RJ, Laub JH. 1993. Crime in the Making: Pathways and Turning Points Through Life. Cambridge, MA: Harvard Univ. Press Sherman LW, Gottfredson DC, MacKenzie DL, Eck JE, Reuter P, Bushway SD. 1997. Preventing Crime: What Works, What Doesn’t, What’s Promising. Washington, DC: U.S. Dept. Justice, Natl. Inst. Justice Smith P. 2006. The effects of incarceration on recidivism: a longitudinal examination of program participation and institutional adjustment in federally sentenced adult male offenders. PhD thesis. Univ. New Brunswick. 121 pp. Smith P, Goggin C, Gendreau P. 2002. The effects of prison sentences and intermediate sanctions on recidivism: general effects and individual differences. Rep. JS42–103/2002. Ottawa, Can.: Solicitor Gen. www.annualreviews.org • Correctional Rehabilitation

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Spohn C, Holleran D. 2002. The effect of imprisonment on recidivism rates of felony offenders: a focus on drug offenders. Criminology 40:329–57 Tewksbury R, Erickson DJ, Taylor JM. 2000. Opportunities lost: the consequences of eliminating Pell grant eligibility for correctional education students. J. Offender Rehab. 31:43–56 Tong LSJ, Farrington DP. 2006. How effective is the “Reasoning and Rehabilitation” programme in reducing reoffending? A meta-analysis of evaluations in four countries. Psychol. Crime Law 12:3–24 Tonry M. 2004. Thinking About Crime: Sense and Sensibility in American Penal Culture. New York: Oxford Univ. Press Tonry M, Farrington DP, eds. 2005. Crime and Punishment in Western Countries, 1980–1999— Crime and Justice: A Review of Research, Vol. 33. Chicago: Univ. Chicago Press Travis J. 2005. But They All Come Back: Facing the Challenges of Prisoner Reentry. Washington, DC: Urban Inst. Press Villettaz P, Killias M, Zoder I. 2006. The effects of custodial vs noncustodial sentences on reoffending. A systematic review of the state of knowledge. Campbell Collab. Libr. http://www.campbellcollaboration.org/frontend.asp Visher CA, Winterfield L, Coggeshall MB. 2005. Ex-offender employment programs and recidivism: a meta-analysis. J. Exp. Criminol. 1:295–315 Walters GD. 1990. The Criminal Lifestyle: Patterns of Serious Criminal Conduct. Thousand Oaks, CA: Sage Weisburd D, Lum CM, Petrosino A. 2001. Does research design affect study outcomes in criminal justice? Ann. Am. Acad. Polit. Soc. Sci. 578:50–70 Whitehead JT, Lab SP. 1989. A meta-analysis of juvenile correctional treatment. J. Res. Crime Delinq. 26:276–95 Wilson DB, Bouffard LA, MacKenzie DL. 2005a. A quantitative review of structured, grouporiented, cognitive-behavioral programs for offenders. Crim. Justice Behav. 32:172–204 Wilson DB, Gallagher CS, MacKenzie DL. 2000. A meta-analysis of corrections-based education, vocation, and work programs for adult offenders. J. Res. Crime Delinq. 37:347–68 Wilson DB, Lipsey MW. 2001. The role of method in treatment effectiveness research: evidence from meta-analysis. Psychol. Methods 6:413–29 Wilson DB, MacKenzie DL, Mitchell FG. 2005b. Effects of correctional boot camps on offending. Campbell Collab. Libr. http://www.campbellcollaboration.org/frontend.asp Wilson DB, Mitchell O, MacKenzie DL. 2006. A systematic review of drug court effects on recidivism. J. Exp. Criminol. 2:459–87 Wilson SJ, Lipsey MW. 2000. Wilderness challenge programs for delinquent youth: a metaanalysis of outcome evaluations. Eval. Prog. Plan. 23:1–12 Wilson SJ, Lipsey MW, Derzon JH. 2003a. The effects of school-based intervention programs on aggressive and disruptive behavior: a meta-analysis. J. Consult. Clin. Psychol. 71:136–49 Wilson SJ, Lipsey MW, Soydan H. 2003b. Are mainstream programs for juvenile delinquency less effective with minority youth than majority youth? A meta-analysis of outcomes research. Res. Soc. Work Pract. 13:3–26 Woolfenden SR, Williams K, Peat J. 2002. Family and Parenting Interventions in Children and Adolescents with Conduct Disorder and Delinquency Aged 10–17. Cochrane Libr. http://www3.interscience.wiley.com/cgi-bin/mrwhome/106568753/HOME


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The Socio-Legal Implications of the New Biotechnologies Alain Pottage Law Department, London School of Economics, London WC2A 2AE, United Kingdom; email: [email protected]


Key Words


instrumentality, legal form, biopower, subjectivity


Abstract This review explores a number of legal-theoretical studies of the encounter between law and biotechnology. Rather than attempt an extensive compilation of scholarship, the review focuses on those studies that have addressed the effects that biotechnologies (understood in the broadest sense) have had on the composition of legal form. Although the relation between law and biotechnology is often seen as being one in which law is applied to biotechnology as a kind of prohibitory limit or regulatory force, this review explores some of the ways in which biotechnological programs have challenged and eroded the conceptual form of law. The hypothesis is that there is an antagonistic relation between law and biotechnology and that this antagonism is brought out in scholarship relating to the key areas in which the encounter between law and biotechnology is played out: intellectual property, governance and regulation, and those domains of law that have incorporated technologies of DNA fingerprinting.

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INTRODUCTION


Biotechnologies evade definition. As composites of scientific knowledge, laboratory technique, economic strategy, legal form, and political engagement, they resist identification in terms of any singular technique or effect. For example, to reduce biotechnologies to the basic technique of recombinant DNA technology as it was developed in 1973 would be to miss out on the complexities that matter to theoretical analysis. Since its invention, gene splicing has been expanded into a generalized figure of technological mastery. Technically, or practically, recombinant DNA technology has become the instrument of applications that have dissolved boundaries between private and public science and that have evolved new institutional and economic contexts for the life sciences. The enhancement and expansion of gene splicing technology is attributable in part to the development of complementary technologies such as polymerase chain reaction (Rabinow 1996), which have rendered molecular text even more tractable. More recently, however, the very composition of molecular text has been transformed by the shift from in vitro manipulation to in silico modeling. Biotechnologies are increasingly becoming information sciences. As digital code becomes the common medium of a host of overlapping and coevolving fields—for example, bioinformatics, pharmacogenomics, population genetics, forensic science, and synthetic biology—theoretical analysis has to negotiate the complexity of a situation in which a singular phenomenon—the gene—is diffracted into multiple existences (for philo¨ sophical commentary, see Muller-Wille & Rheinberger 2004). As part of this process of expansion, gene splicing has become a uniquely compelling cultural metaphor. The technical ability to cut and paste molecular texts has been extensively represented in diverse social commentaries on technological authorship, and these representations have interesting feedback effects on the technical or instrumental compe-

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tences embodied in biotechnologies. Technical competences are conditioned by the forms of knowledge in which they are reflected: “Biotechnology has become an arena in which society speaks back and in which the public takes an interest in experts’ agendas, including their research agendas. Of course, scientists are not the only experts in the field; biotechnology is making us into people who listen to ethicists and philosophers and lawyers as well” (Strathern 2006, pp. 17–18). Law and biotechnology are linked by a feedback loop of this sort. So although there have been various legal or administrative definitions of biotechnology—which are typically attached to specific modes of recombinant DNA technology or specific conceptions of the gene (see, notably, European Union 2001, Annex 1 A)—these definitions are themselves immersed in the economic, scientific, or political strategies that constitute biotechnologies. From a legal-theoretical perspective, formal legal categorizations are themselves unstable symptoms of complexity. Although socialization by means of cultural commentary is essential to what biotechnologies are, the difference between technique and commentary becomes problematic in cases in which biotechnology becomes fiction science, namely, a projected application that is considered to be scientifically plausible and technologically feasible when subjected to further research and investment (Baldi 2001, p. 2). These fictions are often made real by the momentum of economic process; speculative biotechnological projects are embodied in corporate forms that serve as vehicles for the attraction of venture capital and as legal enclosures for such proprietary technologies as might eventuate from research. The role of law—and patent law in particular— in reinforcing these fictions has itself become a productive theme in research (see Waldby 2002, Waldby & Mitchell 2006). This kind of fiction science (particularly in the case of biomedicine) is driven by a mode of speculative determinism; scientists imagine that they already have a functional specification of the


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biological entity or process they are trying to find; their doubts are as to the means of attaining it. But there is another species of fiction science that arises when technique is overdetermined by commentary. For example, in the case of Dolly the sheep, the first successful attempt to clone a mammal by means of nuclear transfer technology marked the emergence of society into what the sheep’s engineers called the age of biological control (see, generally, Franklin 2007). In commentary, this single technique was abstracted into a spectrum of potential applications, ranging from the use of animals as living pharmaceutical factories to variations on the theme of human cloning. Different modes of analysis fix the potentialities of the technology in different ways; are some of these interpretations more realistic than others? The multiple and diffracted character of biotechnologies is reflected in the breadth of legal-theoretical commentary. To some extent, these diverse approaches are contained by established lines of disciplinary division; scholars address the implications of biotechnologies for the particular subdisciplines of evidence and proof, family law, intellectual property, governance and regulation, or international trade. But biotechnologies have had interesting and generalized effects on the schematic composition of all these legaltheoretical approaches. Because the legal interpretation of biotechnology is just one of many interlinked representations, legal scholarship has been drawn into conversation with unfamiliar theoretical perspectives such as science studies and into renewed dialogue with established conversation partners such as philosophy, anthropology, and economic history. For example, scholars in the fields of science studies and legal theory exchange concepts and methods in their respective treatments of the question of intellectual property rights in biotechnology (see Hilgartner 1998; Pottage 2004, 2006b), the regulation of laboratory work (Gottweis 1998), or the role of forensic science in the courtroom (Lynch 2003). At the same time, law’s encounter with biotech-

nology has attracted the interest of anthropologists, who have been engaged by the cultural tropes that are elicited by the tension between legal form and biotechnological agency (see, notably, Strathern 1999, 2006). Similarly, the peculiar configuration of technical, legal, medical, and philosophical knowledge that composes bioethics has renewed normative legal theory (see Beyleveld & Brownsword 2004). How should these diverse theoretical perspectives on law and biotechnology be compiled? Rather than attempt an extensive catalog of legal-theoretical perspectives on biotechnology, it might be more productive to begin with a premise that is common to the most innovative and interesting scholarship in the field: How do biotechnologies problematize the structure of legal form? In what sense do biotechnological instrumentalities undo legal categories? According to Habermas, the cardinal vice of biotechnologies is that they collapse the traditional, categorical distinction between the made and the grown, or between “what is manufactured and what has come to be by nature” (Habermas 2003, p. 46). Although the genetic constitution of domesticated species has been profoundly modified by centuries of artificial selection, these methods of breeding consisted in an essentially therapeutic mode of intervention, premised on “a clinical mode of adjustment to the inherent dynamic of nature” (Habermas 2003, p. 46). Breeders merely inflected the natural process of growth and evolution, but biotechnologies reduce living tissues and organisms to inert components that can be engineered and programmed: “[W]hat hitherto was ‘given’ as organic nature, and could at most be ‘bred’, now shifts to the realm of artifacts and their production” (Habermas 2003, p. 12). And although the objectifying, mechanistic vision of the world is as old as the program of modern science, biotechnologies no longer encounter the organic world as an opaque, resistant medium governed by immutable rules. When everything can be made or remade, there is no world of external

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regularities at all, only a world that exists through human action or in default of human action. Habermas’s ethical rendering of biotechnologies is highly reductive, but philosophical abstraction has a virtue. It gets at a question that haunts many legal-theoretical approaches to biotechnology: “Do we still want to understand ourselves as normative creatures— indeed, what role should morality and law play in the regulation of social interaction that could as well get rearranged in normfree functionalist terms?” (Habermas 2003, p. 15). Biotechnology might be construed as a strange correlate or double of law. By extending the reach of human manufactures into the texture of life itself, biotechnologies do more than loosen the ontological consistency of the grown; they also reveal the sense in which the grown was produced and stabilized by legal norms and institutions. Historically, the very categories that biotechnologies render contingent—means/ends, persons/things, manufactures/organisms—were produced by the layering into law of enduring cultural conceptions of human life and human action. Although it would be an exaggeration to say that these figures of the grown were legal artifacts, it is certainly true that legal form was thoroughly implicated in the texture of human nature. Understandings of genealogical relationship, bodily integrity, and human life span were all closely informed by legal science (for a historical analysis, see Cayla & Thomas 2002). By making these aspects of human nature seem contingent and revisable, biotechnologies directly challenge law’s historical claim to be the sovereign creator of nature. In that sense, the distinction between the grown and the made articulates a tension between two ways of making nature, or between two forms of instrumentality. Ironically, and precisely because they threaten to instrumentalize the world so thoroughly, biotechnologies challenge the instrumentalist understanding of law as a means to an end (on this understanding, see especially Riles 2005). There are two bases to this chal-


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lenge. First, if biotechnology is (as Habermas proposes) a figure of radical instrumentality, then it is so radically instrumental that it deconstructs the logical form of instrumentality. If anything and everything can be instrumentalized so that nothing has an irreducible nature, then all existences are conditional on intervention and ultimately on the perception or observation that informs (potential) intervention. And in a world in which there is no common or irreducible ontology, there are as many informing perspectives as there are observers (see Luhmann 1995). Patterns of causation or instrumentality are referable to observational perspective, so that both means and ends become effects of observation. Second, biotechnologies problematize instrumental logic because, even as they seek to reduce living processes to programmable units, they encounter the fact that biological processes are not themselves ordered by a linear causal logic; rather, they are emergent, epigenetic, or self-organizing (see Pottage 2004). In one sense there is too much instrumentality in biotechnology; in another there is too little. The effects are felt in the architecture of the legal distinctions between persons and things, intention and materiality, or knowledge and object. By deconstructing these traditional distinctions, biotechnology undoes the instrumentalist logic that they articulate. One way of surveying legaltheoretical studies of law and biotechnology is to explore how this corrosion of legal form is reflected in scholarship in the fields of intellectual property, governance and regulation, and family and identity.

PROPERTY The distinction between the made and the grown structures the conceptual architecture of the modern patent system. The doctrinal concept of invention as it has evolved since the early nineteenth century is thoroughly infused with the logic of making or manufacturing. Indeed, nowhere in legal doctrine is that logic more systematically developed


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than in the figure of the invention. The essential characteristics of patentable ingenuity express an implicit theory of making: Ingenuity is original—or originating—in the sense that it entirely controls the form, structure, and articulation of the artifacts in which it is embodied; ingenuity can be reduced to textual form without losing any of its genetic potency (see Biagioli 2006); ingenuity forms a design whose exemplars can be reproduced in multiple copies by means of a process of industrial manufacture. From the early twentieth century onwards, this figure of invention was confronted with biological inventions, which could not be described, explained, or reproduced in the same manner as machines or mechanically reproduced artifacts. In a number cases, judges drew on the distinction between discovery and invention, or between products of nature and manufactures, in an attempt to draw the distinction between the made and the grown. These unsystematic attempts were finally, and somewhat abruptly, brought to an end by the decision of the U.S. Supreme Court in Diamond v. Chakrabarty (1980), which cleared the way for the routine patenting of biotechnological inventions by holding that invention could encompass the grown as well as the made. In Chakrabarty, the essential doctrinal question was whether a genetically engineered microorganism could qualify as a manufacture in the sense of the U.S. patent statute. The answer—that “anything under the sun that is novel and made by man is patentable”—affirmed the novelty of an invention, rather than its mode of origination or reproduction, as the essential qualification for patentability. A new organism was every bit as novel as a new machine. In U.S. patent law, this maneuver effectively closed off fundamental doctrinal questions about the patentability of biological and biotechnological inventions. Indeed, the broader effect of the decision in Chakrabarty was “to normalize genetic engineering by providing forms and methods of discourse that made the applications of the technique seem amenable to control” ( Jasanoff 1995,

p. 140). In Europe, by contrast, legal form did not have these effects of normalization or domestication. Given a quite different configuration of political interest and institutional structures, legal form became the medium or expression of competing normative interpretations of biotechnology. Political campaigns against the patenting of genetic inventions were able to exploit provisions in the European Patent Convention that allow parties other than claimants to inventorship to oppose the granting of a patent on the grounds of morality or ordre public. This form of opposition procedure allowed political parties and nongovernmental organizations to turn the texture of patent law doctrine into a matter of sustained political interest. And the extensive debate surrounding the European Biotechnology Directive of 1998 meant that the texture of doctrine became even more thoroughly permeable to legislative debate, national plebiscites, and expert evaluation (see, generally, European Union 1998). Unsurprisingly, legal-theoretical scholarship is sensitive to these variations in the mode of acculturation of biotechnologies, so that different political and institutional landscapes are reflected in styles of commentary. Scholarship in the United States has tended to approach the decision in Chakrabarty from the perspective of a critique of economic power (see, generally, Thackeray 1998). Patent doctrine, as interpreted and developed by judges, is theorized as a more or less responsive instrument of the economic interest. The refusal of the Supreme Court in Chakrabarty to the deploy the distinction between discovery and invention as a limit on patentability is seen as the outcome of strategies that had been pursued by the life science industries since well before the era of biotechnological invention (see Kevles 1998). This form of economic critique is not exclusive to the United States (see, notably, Dutfield 2003, Drahos & Braithwaite 2002), but the mode of politicization of biotechnologies in Europe has given rise to a style of scholarship that


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is rare in the United States. Because the European Patent Convention treats morality as an effective criterion of patentability, certain strands of scholarship in Europe address the tension between discovery and invention not as an index to economic power but as a symptom of controversy as to the meaning of morality in the age of biotechnology. In one approach, the question is referred to practical reasoning: What normative content should be ascribed to the notion of morality as it is deployed in the context of patent law (see, for example, Beyleveld & Brownsword 2004)? Other perspectives are more self-consciously interventionist. For example, in France legal theory has become a resource for political opposition to what are seen as the socially corrosive effects of biotechnology (see FabreMagnan & Moullier 2004, Supiot 2007). Although these interventionist arguments often resemble political critique more than theoretical analysis, they are interesting because they shift attention to the form of patent law rather than its instrumental uses. The argument emerges from the doctrinal distinction between discovery and invention. One of the more persistent arguments against the moral validity of biotechnology patents is that they illegitimately treat natural products as man-made artifacts, thereby undoing the prestige of the grown and sanctioning the appropriation of resources that should remain common or uncommodified. When the invention in question is a human gene sequence, the emphasis of the argument shifts to human dignity: To grant a private monopoly over a component of the human body is to subvert the peculiar form of dignity that post-Enlightenment philosophy attributed to human beings as ends in themselves (see Beyleveld & Brownsword 1998, Edelman 1999). The theoretical import of these objections becomes clearer if they are rephrased in more abstract terms; in effect, the argument is that law should not be treated as an instrument of instrumentalization. This last phrase is not an empty tautology. Rather than ask the first-order question of what


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ends patent law should serve—which biotechnological techniques or artifacts should be patented and which should not?—these critiques ask a second-order question: Is law really just a means to an end? They argue that to treat law as a mere means, as an instrument for the execution of any manner of end, and more precisely as a mute medium for the deployment of biotechnological projects, would be to denature legal form. Supiot (2007) argues that law, and more precisely the legal form of the person, is both the condition and the expression of a particular kind of rational or normative architecture. This is an effect of historical momentum rather than natural law. As a repository of sedimented traditions, legal form has acquired the anthropological function of conditioning and delimiting individual existences; legal institutions inscribe each individual into a logic of kinship, sexual division, and chronology in such a way as to deny fantasies of individual self-creation or self-sovereignty. These are precisely the institutional coordinates that biotechnology threatens to dissolve. In a sense, it is already too late for this mode of critique; the valorization of legal tradition is now necessarily “a political act of selfreferential moral action” (Habermas 2003, p. 26), and a tradition that is self-consciously deployed rather than silently effective is no longer a tradition. But Supiot’s argument exposes a question that is usually overlooked in analyses of biotechnological invention; it reveals (in polemical terms) the terms of a more general corrosion of legal form. Precisely because it is the purest doctrinal discourse of instrumentality, patent law expresses the double bind described in the introduction to this review. On one hand, patent law is programmed to construe technological interventions in instrumentalist terms, which makes it seem the ideal servant of biotechnology. On the other hand, because it construes technology in instrumental terms (inventive ideas imprint or inscribe useful human designs in matter), patent law is vulnerable to the deconstruction of instrumentalist logic by biological


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process. Again, there is at once too much instrumentality and too little. This might be conceived as a point at which patent law itself becomes especially interesting as a technology that reproduces the made (invention) and the grown (nature) (Strathern 2001). But returning to the theme of legal form, patent law still works with a theory of instrumentality that is premised on the distinction between the grown and the made. Political critique responds to the dissolution of those terms by reviving them as tradition, whereas theoretical critique exposes the inability of patent law to fabricate coherent patent rights in relation to emergent biological process. Both modes of critique reveal a crisis of legal form; what would be required is not just cognitive adjustment on the part of patent doctrine, but rather a reinvention of the tradition of patent law in such a way as to enfranchise it from its commitment to the notion that there are two kinds of kind in the world: the grown and the made. Two widely publicized Canadian cases illustrate the point. In Harvard v. Commissioner of Patents (2002) before the Canadian Supreme Court, the question was almost exactly that addressed by the U.S. Supreme Court in Chakrabarty: Was a genetically engineered organism—in this case a mouse—a manufacture or a composition of matter? Unlike its counterpart in the United States, the Canadian court started with the distinction between the made and the grown and held that because representatives of the patented variety of mouse were both made and grown the new variety could not count as an invention. Although the inventor had invented and manufactured the gene construct that was inserted into each mouse embryo, the ultimate products (adult mice bearing the trait conferred by the construct) were grown through natural metabolic and ontogenetic processes. The mouse as a whole could not be a manufacture because its material form was not entirely structured or programmed by the patented idea. Only two years later, deciding the celebrated case of Monsanto v. Schmeiser (2004), a majority in the Canadian Supreme Court held

that to reproduce knowingly a plant containing a patented gene construct was to infringe the patent. Although the patent encompassed only the gene construct rather than the whole plant, by reproducing plants containing the gene construct the defendant had made unauthorized use of the patented invention: “[I]f an infringing use were alleged in building a structure with patented Lego blocks, it would be no bar to a finding of infringement that only the blocks were patented and not the entire structure” (Monsanto v. Schmeiser 2004, at paragraph 42). What the Harvard and Schmeiser decisions leave unresolved is how or where to draw the line between the grown and the made. Unlike the Chakrabarty decision, the two Canadian decisions open the question of whether an organism can be a manufacture or composition of matter into the broader question of the normative principles that (should) inform the structure of patent law and that might condition its instrumental uses. Both decisions deal with inventions that are hybrid in the sense that they belong simultaneously to two distinct orders of being, or to two kinds of kind. The distinction between these two orders of being is made according to their respective genetic principles, biological heredity in one case and inventive design in the other. Only the latter accords with the instrumentalist logic of patent law, which expects that inventive ideas should be entirely reducible to writing. In both Harvard and Schmeiser, the court reduced a difference to a relation of proportionality, or of parts to a whole. The analogy between a gene construct and a block of Lego not only collapses the difference between the grown and the made, but it does so by the distinction between tangible and intangible things, or between form and matter. The proper object of intellectual property is the idea or design that informs and structures each exemplar or embodiment of an invention, and it is at the level of design that the tension arises. Again, the problem here is that patent law’s commitment to the distinction between the grown and the made


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prevents it from exploring other modes of existence. The expansion of transnational intellectual property regimes has recently become a central focus of theoretical and historical scholarship (see Drahos & Braithwaite 2002, Maskus & Reichman 2005, Sell 2003). There is a sense in which the emergence and functioning of many of these regimes are attributable to the global expansion of the biotechnology industry. According to the most succinct definition, transnational law is “law that is neither supranational nor international, but which is made by the parties themselves” (Delmas-Marty 2003, p. 27). These parties— global corporations, nongovernmental organizations, agencies of international organizations, academic institutions, novel forms of tribunal or arbitration panel—are collectively fabricating a form of intellectual property law that is quite different from the international regimes of the late nineteenth and early twentieth centuries. Whereas the great intellectual property conventions of the nineteenth and twentieth centuries were conceived by formally equal state actors with shared paradigms of scientific and technical knowledge, broadly similar understandings of creativity, and common political justifications of intellectual property, transnational intellectual property is not produced by the replication of homogenous doctrine. Transnational discourses of intellectual property are addressed to new and expanded constituencies, they negotiate diverse conceptions of authorship or creativity, and they articulate novel configurations of law, politics, economics, and science (see Coombe 2003). Global intellectual property is now diffracted into a multiplicity of interpenetrating regimes, each of which links intellectual property into the discourses of economics, development, human rights, culture, and biomedicine, respectively (see Helfer 2004). Biotechnology has played a significant role in creating these discursive networks. In two particular areas, the discourse of molecular information has drawn diverse actors and per-


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spectives into a common horizon so as to complicate homogenous doctrine. In one case, that of global health within the framework of the TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement (see Abbott 2005), the economic or industrial understanding of biotechnology enters into a tension with the therapeutic promise of biotechnology. From an economic perspective, biotechnology is an industry like any other, and biotechnological innovation falls squarely within the remit of the so-called patent bargain. There are variations on the theme of the patent bargain (see Mazzoleni & Nelson 1998), with the most essential justification that patent rights work prospectively as incentives to encourage innovation and retrospectively as rewards for increasing the fund of public knowledge. Against this, the biomedical interpretation of biotechnology emphasizes its potential for tackling global health issues and suggests that pharmaceuticals should be available as a human right rather than as a public contractual benefit. Indeed, one might say that the controversy surrounding the interpretation of the Doha Declaration (Médecins sans Frontières 2004) is not so much a dispute between interested actors as a conflict between two discursive rationalities: economics and human rights (see Fischer-Lescano & Teubner 2004). Whereas, in the case of global health, intellectual property doctrine is challenged by a political or moral interpretation of technological potential, in the case of bioprospecting heterogeneous interests are brought together by the industrial program of natural products research. Natural products research is premised on the observation that many of the most familiar and successful pharmaceutical agents have been based on compounds found in nature. In the latter part of the twentieth century, pharmaceutical corporations began to undertake various kinds of bioprospecting activity in an attempt to exploit these natural genetic variations. Since then, commercial and academic participants have taken differing views on the viability of screening natural compounds for


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pharmaceutical activity, and many biotechnology corporations now favor rational drug design rather than bioprospecting as an approach to drug discovery. Those corporations that engage in bioprospecting are ultimately interested in molecules with interesting therapeutic or industrial properties, but access to these molecules is often mediated by local ethnobotanical knowledge: The most interesting pharmaceutical candidates are often plants that are recognized in traditional medicine (see Jaszi & Woodmansee 2003). Ever since 1992, when the parties to the Convention on Biological Diversity affirmed that genetic resources were not the common heritage of humankind but rather the resources of sovereign states, access to plants and the knowledge associated with them have involved extensive legal and political negotiation. Pharmaceutical corporations now enter into complex bioprospecting contracts that include not only agencies representing the authors or providers of the resource, but also a broad set of intermediaries such as academic institutions, governmental agencies, and corporate subsidiaries. The form of these contracts reflects the purpose of the convention as “an instrument to promote the equitable exchange of access to genetic resources and associated knowledge for finance, technology and participation in research” (Convention on Biological Diversity 1996, paragraph 1.1). Bioprospecting has become the focus of some of the most innovative scholarship in the field of intellectual property. The question of how property rights are indexed to the fluid character of molecular information and cultural authorships is addressed by a number of anthropological studies. Hayden (2003a,b) starts from the premise that bioprospecting contracts draw on too many idioms of entitlement: “In what idiom—territoriality, nationalism, cosmopolitanism, authorship— will biological collections be attached to social relations, interests, and claims?” (Hayden 2003a, p. 368). As a result, given that there are inevitably too many grounds for claiming or justifying ownership of genetic re-

sources, the attribution of property rights becomes a transparently constructive operation: “[P]rospecting agreements do not merely direct the traffic in resources but rather help generate their constituent subjects and objects” (Hayden 2003b, p. 127). In related studies, Brush (1999) surveys the complex relations between cosmopolitan plants and the diverse groups that were historically responsible for their cultivation and conservation, whereas Greene (2004) explores how indigenous peoples resolve themselves into political agents so as to stake prospective ownership claims to genetic resources. Coombe (2003) addresses the nature of the global process in which novel intellectual property concepts and institutions emerge from bioprospecting practices. The analysis focuses partly on the paradigm of solidarity that is fostered by the idiom of bioprospecting, which “asks ‘us’ to embrace impoverished others as subjects on whom ‘we’ are or might at some future point be dependent [for genetic resources]” (Coombe 2003, p. 280) and partly on the expansion of the conception of authorship beyond the narrowly economic interpretation of Western intellectual property law and into discourses of human rights and cultural distinction. Against the background of these discussions of biotechnology and intellectual property forms, the specter of Terminator technology emerges as a strangely conservative figure. The technology itself is highly innovative, but political and normative responses have turned it into an expression of familiar modes of appropriation and familiar logics of property. Terminator technologies first emerged in 1998 in a U.S. patent that claimed an array of gene sequences that, when activated, would express a toxic protein, preventing further development of the cells that composed the seed tissues of the maturing plant. The invention was designed to prevent proprietary plants from developing seeds that could be saved by farmers and used to reproduce the genetic property of agricultural biotechnology corporations. By programming the maturing plant to act as a kind of proprietary automaton,


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Terminator technologies sought to turn living organisms into enclosures of genetic information. But this technology is an instance of fiction science in that it exemplifies “the way in which innovative designs take account of prospective interests in, uses of, and resistances to alternative material arrangements” ( Jordan & Lynch 1998, p. 776). Ever since the first Terminator patent was granted, various studies have made the point that it was an ongoing research program rather than a finished product. And since 1998 this research program has been characterized in different terms, some of which have been reflected back into the form of the technology. For example, in response to complaints about unnatural effects of Terminator technologies on the reproductive cycles of plants, the biotechnology laboratories proposed a version in which proprietary traits would become optional extras; plant seeds engineered to carry a premium trait would be reproducible naturally, access to the proprietary trait being conditional on payment of a fee or royalty for the appropriate chemical-inducing agent. In yet another guise, Terminator technology evolved from an intellectual property mechanism into an instrument of environmental protection; Terminator sequences could be used to excise transgenes from plant tissues to prevent their accidental dispersal through genetic drift (Keenan & Stemmer 2002). Legal commentaries have addressed Terminator technologies as a means of restoring a logic of ownership that is eroded by the global expansion of agrobiotechnology. For example, Swanson & Goeschl (2005) suggest that the evolution of Terminator technologies can be seen as a rational response to the problems of enforcing intellectual property rights in certain jurisdictions; biological property is just an alternative means of realizing institutional property. Another line of argument emphasizes the sense in which Terminator technologies reinforce corporate power by turning biotechnologies into “strange life sciences that conspire against the marvelous property of living things to reproduce them-


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selves and multiply in farmers’ fields so that capital can reproduce and multiply in investors’ bank accounts” (Berlan & Lewontin 1998). The maneuver of folding biological property back into familiar logics of appropriation can also be seen in doctrinal legal discussions of the nature of plants as objects of property. In broad terms, the ability to turn plant genomes into programmable text— which is exactly what Terminator technology seems to do—is taken to represent a profound transformation in the legal existence of plants; plants now become “genetic datasets” ( Janis & Smith 2006), or embodiments of digitally archived information. The notion that recombinant DNA technology now resembles digital information processing is specifically applied to Terminator technologies, which are seen as examples of “the instantiation of a proprietary rule in genetic code” (Burk 2002, p. 114). Ultimately, the more dramatically researchers can reduce the complexity of biological organisms, the better they can turn these organisms into instrumentalizable media and simultaneously reduce the difficulties (and the interest) of the encounter between biotechnologies and patent law.

GOVERNANCE Biotechnologies have not only generated new challenges for legal governance; they have also elicited new idioms and referents for governance and regulation. The challenges arise principally from the commercialization of genetically modified organisms (GMOs), the introduction of various modes of genetic testing and identification, and the emergence of a global market in genetic information. Regimes of legal governance seek to adapt the languages of regulation, liability, compensation, and insurance to the specific potentialities (risks and opportunities) of transactions in biotechnology. As a result, these new governmental norms are structurally coupled to the evolving character of biotechnological knowledge and to the complexities of molecular information. This mode of coupling is multiple


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and reflexive. For example, in debates concerning the risks of biotechnology, scientific practices and representations are mobilized as resources for political argument, and this politicization of the technical is amplified by the role of politics in framing research agendas and securing budgets (for a case study, see Lassen et al. 2002). But the translation of biotechnological knowledge into governmental policy is creative in other ways; it generates new artifacts of governance, either in the sense that genetic information becomes the object of governmental interventions or in the sense that molecules themselves become agents or media of normative regulation. The most innovative scholarship in this area explores these interpenetrations of governmental schemes and biotechnological knowledge. The broader approach treats biotechnological knowledge as a novel variation on the familiar themes of biopower (Rose 2006) and governmentality [for the original specifications of the theory, see Foucault (1978), and for commentary, see Rose (1999), Rose et al. (2006)]. At another order of scale, scholars undertake more specific investigations into the molecularization of normative form (Gottweis 1998, Lezaun 2006). Biopower (see, generally, Foucault 1978) has long been a familiar theme in legaltheoretical scholarship, and it has recently been revivified by the critical studies of Agamben (1998) and Hardt & Negri (2000). One of the key insights of Foucault’s presentation of biopower was the proposition that “the action of norms replaces the juridical system of law as the code and language of power” (Ewald 1990, p. 159). Norms were articulated by the set of practices, policies, and pastoral exhortations that shaped the expression of individual sexuality and that articulated a governmental interest in fertility. These normative (self-) descriptions might or might not have been channeled through legal rules and institutions; the point was that they were productive rather than repressive. They were directed to the enhancement of life and to increasing the productivity and value of indi-

vidualized and collective biological existence. Recent studies have described the emergence of governmental strategies designed to enhance the molecular potentiality of the body rather than rates of fertility; life is “imagined, investigated, explained, and intervened upon at a molecular level—in terms of the molecular structure of bodily components, the molecular processes of life functions, and the molecular properties of pharmaceutical products” (Novas & Rose 2000, p. 487). The proposition is not that molecular information has replaced or eclipsed other resources for (self-) identification, nor do scholars suggest that no sources and techniques of biological citizenship exist (Rose & Novas 2003) that are not directly derived from the molecular gaze. Nevertheless, some do argue that biotechnology informs an entirely new theme of governance that colonizes legal form just as effectively as earlier modes of biopower. As in the classical model of biopower, which distinguished the life of the population from that of the individual, there are two interlinked dimensions to the molecular gaze (Rose 2006). In one register, molecular potentiality is a concern of governmental institutions, which seek to maximize the value of the genetic variations represented in their populations and to modulate the economic and social costs of disease. For example, genome mapping has generated the figure of the single nucleotide polymorphism (SNP), which has been absorbed into governmental discourses as an index to variations within populations: “[T]he science itself, and the recognition of the variability of the human genome at the level of the single nucleotide, immediately open up a new way of conceptualizing population differences—in terms of geography and ancestry—at the molecular level” (Rabinow & Rose 2006, p. 207). Molecular cartographies have various governmental uses. One such use is premised on genetic testing in areas such as employment, education, parenting, criminal law, and insurance (Rose 2006, chapter 4). In another kind of strategy, molecular cartographies are the basis for the exploitation


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of an emerging form of biological capital; governments, often in alliance with private corporations, have turned genetic information into a marketable resource for consumption in commercial biomedicine (Waldby & Mitchell 2006). Extending this governmental logic, categories of race are appropriated and reshaped in patent specifications as ways of extending the period of time for which certain pharmaceutical inventions remain under patent (Kahn 2006). In these various ways, “a modified biopolitical rationality in relation to health is taking shape, in which knowledge, power and subjectivity are entering into new configurations, some visible, some potential” (Rabinow & Rose 2006, p. 213). In another register, molecular potentiality is the medium in which individuals sculpt their own selves in the light of information about their susceptibilities to disease or their reproductive potential. Information gathered from genetic testing becomes a resource for the constitution of somatic individuality (Novas & Rose 2000); in an alternative formulation, discourses and information drawn from biotechnological knowledge are said to extend and reinforce existing projects of bioindividuation (Memmi 2003). Already, the first participants in assisted reproduction were moral pioneers (Rapp 2000) in the sense that they experimented with new normative idioms, and this mode of bio-individuation is increasingly linked to governmental expertise by a relation of reciprocal constitution: In the context of medical care, the individual becomes “skilled, prudent and active, an ally of the doctor, a proto-professional” (Novas & Rose 2000, p. 489). Indeed, developing the Foucauldian model of biopower, Memmi (2003) argues that the biopolitical regulation of life is increasingly delegated to the individual, in forms that are “encouraged, guaranteed, and supported by the state itself” (p. 292). Biopower is individualized and incarnated in an operation of bioreflexivity. Biopolitical strategies now include private corporate research programs in genetic diagnostics, targeted therapy, and pharmacoge-


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nomics; indeed, one might say that this mode of research is one of the essential characterizing features of contemporary biopower. More precisely, it reveals a particular variation on the theme of governance as risk management. As with the classical forms of biopower studied by Foucault, research programs in genetic medicine have interdependent cognitive and normative effects. Biomedicine is an epistemic project in the sense that it construes the world according to a particular set of diagrams, categories, and traces, but this epistemic horizon also conditions the (self-) formation of subjects across an increasingly broad range of social discourses. One effect of the rise of biomedicine has been the parallel expansion of the domain of the therapeutic. Sunder Rajan (2006) argues that aspects of human existence are increasingly characterized as conditions or illnesses that are susceptible to diagnosis and treatment by molecularized therapies, with the effect that individuals increasingly become the site of calculations as to research risks and market risks: “genomic information that configures individual subjectivities as those of patients-in-waiting by foretelling future possible illnesses also very much configures their subjectivities as consumersin-waiting for drug development companies looking to increase their market” (Sunder Rajan 2006, pp. 143–44). Two points are essential here. The first is that bioreflexivity is premised on a calculus of risk rather than a tension between the normal and the pathological, the effect being “a reconfiguration of subject categories away from normality and pathology toward variability and risk, thereby placing every individual within a probability calculus as a potential target for therapeutic intervention” (Sunder Rajan 2006, p. 167). The second is that this risk calculus simultaneously mobilizes and defers the risks inherent in biotechnologies. Precisely because it tries to instrumentalize complex and emergent biological processes, biomedical research is necessarily a speculative activity, but the core strategy of biomedicine is to make this mode


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of speculation economically productive by drawing investors and consumers into parallel modes of orientation to the future, both of which treat research risk as capital. Investors are invited to gamble on the stock market prospects of profitable research programs, while consumers are invited to incorporate the promise of effective diagnosis and personalized therapy into their own modes of bio-individuation. These two modes of speculation link up at the point where individuals as patients-in-waiting also constitute themselves as consumers-in-waiting; on one hand, these potential consumers form the market that guarantees (in the mode of futurity) investors’ stakes, while on the other hand increased investments extend and refine the range of diagnostic and therapeutic options with which individuals have to reckon in their capacity as patients-in-waiting. The outcome—the standing imperative for a wide range of actors “constantly to calculate their futures precisely because of the difficulty of calculating them” (Sunder Rajan 2006, p. 177)—is a specific variation on the predicament of individuality as it is described in Foucault’s discussions of biopower. This scholarship reveals one facet of bioreflexivity as a normatively productive operation that constitutes and holds together diverse forms of biopolitical entities. Other forms of scholarship reveal another, equally significant, mode of bioreflexivity, in which uncertainty is not capitalized as a resource but accentuated and dramatized as a political predicament. This mode of reflexivity is nicely brought out in studies of the so-called precautionary principle (Godard 1997, Noiville 2003, Sunstein 2005). The essential premise of the precautionary principle is that technologies that have the potential to cause massive and irreversible harm should be subject to regulation even in the absence of clear evidence of the likelihood of harm, with the burden of proof placed on proponents of the technology. Given the importance of technological innovation to economic development, the precautionary principle effectively becomes

the basis for a very specific mode of balancing technological evolution against potential social harm. The global reach of the precautionary principle was negotiated in the debate surrounding the adoption by the World Trade Organization of the Cartagena Protocol on Biosafety (2000), which addressed the marketing of GMOs. The final text was a compromise between the precautionary principle and the science-based approach favored by the United States; it gave some recognition to the notion of precaution by recognizing that nations were not obliged to justify trade restrictions on the importation of GMOs on the basis of specific scientific evidence (which was the approach pressed by the United States as a principal global exporter of GMOs), but the precautionary principle was not named as such in the text of the Protocol, nor were its normative premises developed to any extent. So the precautionary principle represents only one approach to the problem of governing the risks of biotechnology, and it has been widely criticized as a conceptually incoherent formula that is at best a cause of economic paralysis and at worst a generator of increased social risk (Sunstein 2005). Nevertheless, the principle serves as an interesting case study in the mobilization of bioreflexivity in the construction of normative form. Ewald (2002) situates the precautionary principle in a genealogical diagram of different governmental and legal strategies for managing risks and accidents: legal liability, social solidarity, and precaution. This diagram traces the transformation within governmental or regulatory logic of a set of terms that are each essential to the theme of instrumentality: causation, prediction, and compensation. The classic liberal-legal regime of liability was based on the principle of prudence in the sense of moral self-mastery and selfrestraint. It was left to each (legal) person to apprehend and engage with causal processes according to their own volition, and a failure of prudence automatically entailed the attribution of liability: “[I]t is I who was unable to take a particular element into account; it is I


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who did not understand the laws of nature or was unable to use them. In any case, and always without exception, it is my fault” (Ewald 2002, p. 275). The obverse of liability was the legal right to damages; in cases in which there was loss without liability, the legal regime made no provision for pure victims. Regimes of solidarity corrected this failing by shifting from a principle of prudence to a principle of insurance. Just as regimes of biopower apprehended death as a permanent social fact rather than an individualized event (Foucault 1997, p. 217), so in regimes of solidarity responsibility “is no longer the attribute of a subject, but rather a consequence of a social fact” (Ewald 2002, p. 280). Obligations to make compensation did fall on individual subjects, but only in terms of a social-contractual calculus of fairness and ability to pay. Although social facts and laws exceed the cognitive capacities of individuals, there is a sense in which the logic of insurance-based solidarity assumes that contingencies can be assessed and accounted for from some superior vantage point. In other words, the regime of solidarity does not entirely give up on causal analysis. By contrast, the regime of precaution entirely abandons any pretension to master social contingencies. In one sense, this inability to master social contingencies arises because the stance of precaution corrodes the available grounds of predictive knowledge and risk assessment. It thoroughly relativizes scientific knowledge by deconstructing the social and cognitive architecture of scientific paradigms. First, it extends the time frame for catastrophe into a future that extends well beyond the usual span of plausibility of scientific theories, thereby undermining knowledge by confronting it with its future obsolescence. Second, it turns scientific disciplines into incoherent and internally contested bodies of knowledge by giving particular weight to fringe positions that are usually externalized by the process of scientific paradigm formation. Moreover, by emphasizing the catastrophic and irreversible nature of potential harm, the idiom of precaution disqualifies the use of insurance as an effec-


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tive means of compensation. Ultimately, the regime of precaution is predicated on suspicion rather than risk analysis. Decisions have to be made, but they are made “not in a context of certainty, nor even of available knowledge, but of doubt, suspicion, premonition, foreboding, challenge, mistrust, fear, and anxiety” (Ewald 2002, p. 294). Ewald presents the precautionary principle as one of many instruments of “reflexive modernization” (Ewald 2002, p. 295) and more precisely as a response to a situation in which scientific knowledge— rather like society itself—encounters its own limits. Arguably, this understates the persistence of reflexivity. One might say that the reason the paradigm of solidarity and insurance falls away is that the representation of the social as whole aggregate becomes untenable; the basic condition for the emergence of the precautionary principle is the disaggregation of society into a number of differentiated discourses, each of which evaluates risks to society as a whole in terms of its own cognitive schemata and normative objectives (see, generally, Luhmann 1989). To the extent that there are systematized forms of probability calculus or actuarial reckoning, the meaning of these analyses is reconstructed in accordance with the specific logic of each discursive rationality. In what sense does the precautionary principle link this general predicament of risk, reflexivity, and social differentiation to the contingencies of biotechnology in such a way as to constitute a specific mode of bioreflexive governance? One might begin with the proposition that the principle of precaution is premised on a particular characterization of risk. The political theme of “sanitary vigilance [vigilance sanitaire]” (Memmi 2003, p. 282) represents risk as a physical or corporeal phenomenon: Risks are apprehended not as indices of potential economic loss but as traces of a prospective danger to the integrity of the human body or of the environmental networks in which bodies are (still) immersed. The body is again mobilized as a biopolitical device. And regulatory attention to GMOs is


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motivated by concerns about just this sort of corporeal risk: To what extent might transgenes be incorporated into wild species by means of genetic drift, and what might be the ecological impact of genetic drift? To what extent does the intensive use of antibiotic agents in plant modification put consumers’ health at risk? To what extent might metabolites formed from transgenic organisms be passed up the food chain, and with what toxicological risks? From this perspective, the precautionary principle as it has evolved in European politics articulates a particular kind of biopolitical strategy. In the theme of sanitary vigilance as it is deployed by a new constituency of political actors (Memmi 2003, p. 283), the bodyat-risk materializes and warrants the kind of suspicion that sustains the precautionary principle. The body-at-risk becomes an emblem of political commitment and a motive for the “doubt, suspicion, premonition, foreboding, challenge, mistrust, fear, and anxiety” (Ewald 2002, p. 294) that make the precautionary principle so corrosive of scientific knowledge. This mode of bioreflexivity is the obverse of bioreflexivity as it is mobilized in the making of commercial biomedicine. Commercial programs in genetic diagnostics and pharmacogenomics exploit one variation on the theme of corporeal risk; speculative research programs are sustained by replicating bodily risk into the two complementary figures of the patient-in-waiting and the consumer-inwaiting (Sunder Rajan 2006, chapter 4). Both figures are produced from within the medium of corporeal risk. The political program of health vigilance recruits corporeal risks in an entirely opposite way; it does not share the assumption that risks can be addressed and mobilized within reflexive processes of individuation; instead, it constantly accentuates and dramatizes risk in order to promote a particular political program. Corporeal risk becomes a kind of surplus value of social differentiation, which is drawn upon by political critique as resource for argumentation. The reach of this political critique is such that it even draws Ewald’s own genealogical theory

of the precautionary principle into responding to the politics of sanitary vigilance (see Ewald 2004a,b). With reference to the organizing rubric of this review—how do biotechnologies engage legal form?—the significance of the precautionary principle is that it reveals a species of normative form that is structured— or continually restructured—by tensions between the diverse social rationalities that compose biotechnologies: politics, economics, science.

REFERENCE The shift from the grown to the made might be represented as a shift from selection to instruction, or as the outcome of a process in which, through “molecular biological writing,” human beings have “gained access to the texture—and hence the calculation, instruction, and legislation—of the human individual’s organic existence—that is, to a script that until now it has been the privilege of evolution to write, rewrite and alter” (Rheinberger 1995, p. 252). This understanding of instruction is usually interpreted in terms of engineering competence or as a cipher for the ability of biotechnologies to manipulate or instrumentalize biological components by reducing them to a set of permutable or combinable elements. This notion of life as text or mechanism—the two variations are conjoined in the implicit metaphor of genetic code as moveable type (Pottage 2006a)—is represented in debates over human cloning, in which the mastery of genetic script is seen as a condition for the success of reproductive or therapeutic cloning. The technology itself may be somewhat more complex than that (see Franklin 2007), but the general representation of clones as genetic copies trades on the logic of instruction. The questions that biotechnological instruction poses for law and legal theory are understood to be essentially questions of regulation: Should the parents of a child with an otherwise untreatable genetic condition be allowed to design their next child as a kind of resource to ensure treatment for


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the first? To what extent should therapeutic cloning be encouraged as an effective means of realizing biomedical objectives? These approaches construe law in instrumental terms, as a means of articulating and imposing the norms that define the human, but what might be more interesting is a focus on the effects that the fantasy of instruction has had on the structure of legal concepts and institutions rather than on the uses of instruction as a mode of creating new objects of legal attention. Consistent with the theme of this review, the question is what effect technologies of molecular writing have had on the making of legal institutions. In what sense does apprehension of biological facts at a dramatically enhanced order of resolution disturb the architecture of legal institutions? More precisely, what effects has the use of DNA fingerprinting had in the institutions of family law and criminal law? How do biotechnologies (re)constitute the referential relation between legal categories and biological facts? Classically, legal institutions deal in evidence of biological states or events rather than biology itself. The difference between the two registers is nicely expressed by Austin (1962, p. 115): One has “evidence for the statement that some animal is a pig [when] the beast itself is not actually on view, but I can see plenty of pig-like marks on the ground outside its retreat, [but] if the animal then emerges and stands there plainly in view, there is no longer any question of collecting evidence; its coming into view doesn’t provide me with more evidence that it’s a pig, I can now just see that it is, the question is settled.” Evidence points beyond itself to the object it represents, but there is always an essential distance or discrepancy between object and representation. The ultimate fact is incorporated in the evidential trace, but only and always in the mode of deferral or anticipation. And because the state of biological knowledge did not allow this moment of deferral to be collapsed completely, there was considerable room for maneuver in constructing institutional schemes—principally forms


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of genealogical relationship—that performed certain kinds of contingent legal operation in the name of biology. The effect of biotechnology on this mode of evidential knowledge is illustrated in studies of how courts have addressed the possibility of being certain about biological relationships. Since the 1980s, DNA testing has been able to be used to establish or verify paternity with certainty. Dolgin (2000) tracks the shift from a form of paternity that was premised on the logic of presumptions to a form of paternity that takes into account the scientific certainty of DNA testing. In most jurisdictions, a child born within a marriage is presumed to be the child of the husband, with the burden on the husband to adduce persuasive evidence that he is not the father, or, more precisely, to prove that he had no opportunity or capacity to be the father by virtue of nonaccess, impotence, or sterility. In one sense, the structure of the presumption was an attempt to second-guess the biological facts. In another sense, it was a fiction sustained on the basis of evidence rather than knowledge of the facts themselves. And the difference between evidence and the facts themselves was crucial to the institutional logic of family law. The institution of paternity was ostensibly predicated on biological facts; it was an autonomous construct within which certain institutional effects were triggered by biological events, but the institution itself was not a direct translation of biology into law. It followed that the presumption of paternity was not simply an evidentiary technique; it was also a device that structured disputes in such a way as to regulate the effect of corrosive information on family relations that were already established and that stabilized broader legal and social expectations as to the proper location and transmission of responsibility, authority, and property. The availability of accurate DNA fingerprinting has complicated the functioning of this institution by shifting the register of institutional knowledge from evidence to the thing itself. Dolgin (2000) explores the effects of this shift by reference to jurisprudence concerning


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the admissibility of DNA evidence. In one case (discussed in Dolgin 2000, pp. 530–32), a court in the United States refused to admit DNA evidence proving that a man was not the father of a child born while he was married to his former wife. The court reasoned that the presumption of paternity continued to apply because the paternal relationship had been formed well before the DNA test was made, and that this relationship continued to characterize both the father and the child. The presumption was deployed as fiction sustained in plain contradiction to the facts. The reason is obvious: The appellate court was concerned not only to address the particular case before it but also to establish a precedent that would regulate the admissibility of DNA evidence in future cases. According to the court’s conception of healthy family relationships, fathers should be dissuaded from asserting scientific certainties against a family member whose relation to them was established by other means. DNA evidence was construed as a means of verifying relationships that were established by social and affective expectations rather than scientific truth. Strathern’s analyses of the cultural power of biological information (see Strathern 1999, chapter 4) offer a theoretical approach to this mode of judicial verification. Biological information is often effective as constitutive information: “[K]inspersons who find things out about their ancestry acquire identity by that very discovery. Parentage implies relatedness; facts about birth imply parentage. EuroAmericans cannot ignore these connections” (Strathern 1999, p. 68). Given the immediacy with which constitutive information takes effect, the real question for doubting fathers or adoptive children in search of their real parents is the second-order question of whether or not to seek access to constitutive information. And as the issue of paternity testing makes clear, the question is not only or necessarily theirs to decide. Courts and other regulatory agencies have assumed the role of regulating the risks of constitutive information in the interests of the different individuals who

might be vulnerable to its effects. In the case of the institution of paternity, this regulatory relation is what constitutes the institution. The maneuver is not one in which a logic of evidence or presumptive certainty is exchanged for a logic of scientific certainty, but one in which the institution holds together both orders of knowledge. Again, Strathern’s observations are instructive here: “Knowledge that comes from [DNA] testing gives a modern way (genetic identification) of being certain about a traditional category of parentage (biological fatherhood); but it is also a traditional way (establishing biological connection) of defining a thoroughly modern kind of parentage (scientifically certain fatherhood)” (Strathern 1996, p. 48). The regulatory approach to biological information shifts between the two forms of knowledge, sustaining the traditional form of the institution at the same time that it incorporates modern certainties. Obviously, an institution such as paternity is not made through adjudication alone, but we have “more tradition and more modernity at the same time” (Strathern 1996, p. 45). This notion of a recombinant relation between tradition and modernity has some interesting implications for the thesis that biotechnologies are dissolving the distinction between the grown and the made by thoroughly instrumentalizing society. As the title of one of Strathern’s reflections on Euro-American kinship—After Nature (Strathern 1992)— suggests, biotechnologies are after nature both in the sense that they undo and supplant natural ways of making kinship relations and in the sense that the relations they fabricate are modeled after nature, as factitious ways of remaking nature where nature fails, or as techniques for enhancing natural ways of being. So even if biotechnologies instrumentalize the world, they may do so by remaking the grown in alternative ways. The other, and perhaps more contentious, use of DNA fingerprinting is as evidence in criminal trials. A number of issues arise from the incorporation of DNA evidence into trial


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procedure: the relation between legal judgment and scientific expertise ( Jasanoff 1998); the socio-technological bases for the emergence and perfecting of the procedure ( Jordan & Lynch 1998, Lynch 2003); and the expansion of DNA databases as resources for crime detection. One might say that, as with paternity testing, the effect of DNA evidence has been to transform the basis of institutional references to biological fact. Again, although evidence in criminal trials pointed beyond itself to the event itself, the reality was that the facts were iterated and produced by various modes of institutional inscription and narration, so that the facts themselves were literally (re)materialized in the trial process (Scheffer 2004). To the extent that the essential logic of identification in criminal trials was a logic of discernible uniqueness, according to which “two indistinguishable marks must have been produced by a single object” (Saks & Koehler 2005, p. 892), then the arrival of DNA fingerprinting promised to collapse evidence of uniqueness into proof of uniqueness. Indeed, DNA evidence was initially presented as a more perfect analogue of fingerprint evidence. Just as the evaluation of a fingerprint was based on quantifying the number of matches between a print from the scene and an archived print, so were the bands of DNA drawn from two samples compared according to the number of points at which they matched: In both cases, prints and bands were “visually identified as elements in a holistic comparison” (Lynch 2003, p. 95). However, there is a significant difference between the institutional acculturation of DNA evidence in the contexts of paternity disputes and criminal trials. Whereas paternity disputes incorporate DNA evidence by means of discursive techniques that take effect only once the evidence has been delivered and the question of admissibility arises, criminal procedure has been much more active in constituting the scientific practice of DNA testing. At the outset, DNA evidence seemed unreliable and inherently contestable; doubts were raised about the rigor of the sci-


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ences involved, the integrity of sample collection procedures (Lander & Budowle 1994), the foundation of calculations as to the probability of matches, and the presentation of evidence in the courtroom ( Jasanoff 1998). Since then, with the evolution of the so-called multiplex short tandem repeat (STR) system, which evaluates matches not on the basis of a comparison of two traces but on a comparison of multiple DNA traces drawn from a number of different chromosomal sites, DNA evidence has become the gold standard (Lynch 2003) in forensic evidence: “Trust is invested in a combination of automated systems, impressive numbers, graphic outputs, and bureaucratic procedures” (Lynch 2003, p. 96). The process by which DNA evidence became trustworthy reveals how legal and scientific practices joined in the production of a specific form of referential relation. Returning to the observation that “innovative designs take account of prospective interests in, uses of, and resistances to alternative material arrangements” ( Jordan & Lynch 1998, p. 776), one might say that the scientific form of the DNA fingerprint is just such a material arrangement; it is a form that incorporates the outcome of debates about the nature of forensic DNA evidence. Doubts and criticisms made by lawyers were factored into the organization and design of procedures for collecting, archiving, and presenting DNA evidence, with the result that the test itself became a kind of coconstituted artifact of law and science. In this case, the referential relation is not simply a relation between a word and a thing; the relation is traced and maintained by a chain of reference that conditions, articulates, and materializes a particular way of seeing the world. As a process, reference is itself a particular kind of technological artifact. A variation on this theme of legalscientific reference technologies is found in Lezaun’s (2006) account of the emergence in the European Union of the regulatory category of the transformation event. Regulatory agencies in the United States treat GMOs


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as substantially equivalent to natural organisms, so that GMOs become the objects of regulatory intervention only in cases in which there is specific evidence that a given organism poses a hazard, whereas legislation in the European Union starts from the premise that there is a fundamental difference in kind between natural and artificial biological organisms. The theory is that GMOs should be rigorously distinguished from natural organisms at all stages of production and marketing, partly to allow regulatory authorities to intervene to remove any hazardous products from the market, and partly to allow consumers to make an informed choice as to whether or not to consume the products of biotechnology. But what is a GMO? Before 2003, GMOs were characterized by the detection of the most obvious traces of genetic intervention. The modification of plant cells usually involves the insertion of highly recognizable and effectively standardized regulatory gene sequences, which control the expression of the core transgenic trait, and it is relatively easy to distinguish natural organisms from artificial organisms by testing for one or other of these standard regulatory sequences. But although this mode of testing sufficed to distinguish artificial organisms from natural organisms, it could not distinguish between artificial organisms. In 2003, the European regulations shifted to a new mode of testing based on the detection of transformation events. The object is to identify GMOs by reference to the unique molecular pattern that is produced at “the junction areas, the two regions where the transgenic DNA is ‘welded’ to the genome of the host organism” (Lezaun 2006, p. 511). Laboratories are required to record the creation and marketing of new transformation events rather than new organisms. And because transgenic modification is a highly random operation, in which transgenic DNA is inserted into the host genome at unpredictable points, the point of welding will be unique to each act of transformation, even when the act manipulates copies of a single gene construct and exemplars of the same

plant variety. A transformation event is potentially specific to each individual product of genetic modification. In broad terms, the regulatory objective was “to constitute a new bio-legal entity and make it real in the world of biological organisms and food production” (Lezaun 2006, p. 521). What is emphasized in Lezaun’s analysis is the regulatory reach of this new artifact, the purpose of which is to channel the processes of manufacturing and marketing GMOs into clearly identifiable spatial domains; the new technology has “the capacity to fix things in specific places, to draw visible limits in organisms and along the networks through which they move” (Lezaun 2006, p. 521). This mode of fabricating reference is interesting for two related reasons. First, the index of the transformation event identifies organisms without reference to any of the taxonomies or categories that were traditionally used to actualize biological form. Organisms are not apprehended as genealogically produced entities, but are identified by reference to a temporal and spatial order that is entirely generated by the regulatory institution itself. Not only does the institution fabricate its own referents; in so doing it enfranchises the regulatory scheme from the distinction between natural and artificial organisms and from the distinction between the grown and the made. The transformation event is, quite literally, a new kind of kind. Second, the axis of reference is internal to the regulatory institution. Lezaun describes the production of a material artifact, a form of referent that is made to answer to a particular regulatory concept, but the materiality of the referent is just a moment in a process of self-observation. In constructing a means of tracing the movement of GMOs, the discourse of regulation divides a conceptual form into a category and its referent, and this materialized referent becomes a way of observing, testing, and enhancing the knowledge that is invested in the category. The form of transformation event is sufficiently generalized to function not only as a technique for governing or disciplining the


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production of GMOs, but also as a cognitive form that is ideally suited to the accumulation of information that can be fed back into the assumptions and expectations that structure regulatory action. The transformation event would be an ultracontemporary variation on the theme of the biopolitical norm as an instrument that actualizes the world to which it refers (see, generally, Canguilhem 1991). Annu. Rev. Law. Soc. Sci. 2007.3:321-344. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/18/07. For personal use only.

CONCLUSION With instrumentalities in mind, two opposing trends seem to be noticed in studies of the legal acculturation of biotechnologies. The first emphasizes the increasing capacity of biotechnologies to instrumentalize the world. In the guise of nanotechnology and synthetic biology, and through modes of miniaturization and synthesis, biotechnologies seem to be relentlessly pursuing the program of making every element of the world programmable or susceptible to engineering. The second trend reveals the counterinstrumental effects of biotechnology. Here, the logics of linear causation, or of indexical relations between genes

and diseases, are dissolved into the new regime of epigenetics, which calls into question many of the premises of biomedical research and of theoretical studies of biomedicine and molecular biopolitics. The conjunction of these two trends creates a very particular context for law and legal scholarship, and how that context will evolve is unclear. Indeed, one may conclude that the evolution of biotechnologies will not only generate new themes or objects of theoretical research, but also generate new modes or vocations of scholarship. For example, one of the responses to the emergence of nanotechnology and synthetic biology has been a specific inflection of participant observation in which scholarship tries to get in at the beginning of a new technological program and to build social science into technological networks (see, for example, Rabinow 2004, Macnaghten et al. 2005). For the first time, the emergence of new and significant modes of technology can be framed by science studies and anthropology; in the light of these evolutions of biotechnology, legal-theoretical scholarship may develop its own innovations in interdisciplinary theory.


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¨ Muller-Wille S, Rheinberger H-J. 2004. Gene. In The Stanford Encyclopedia of Philosophy, ed. EN Zalta. Stanford, CA: Metaphys. Res. Lab, CSLI, Stanford Univ. http:// plato.stanford.edu/entries/gene/ Noiville C. 2003. Du Bon Gouvernement des Risques. Paris: Presses Univ. France Novas C, Rose N. 2000. Genetic risk and the birth of the somatic individual. Econ. Soc. 29:485– 513 Pottage A. 2004. Our original inheritance. In Law, Anthropology, and the Constitution of the Social, ed. A Pottage, M Mundy, pp. 249–85. Cambridge, UK: Cambridge Univ. Press Pottage A. 2006a. Materialities in life and law: informatic technologies and industrial property. Paragrana 15:81–99 Pottage A. 2006b. Too much ownership: bioprospecting in the age of synthetic biology. Biosocieties 1:137–58 Rabinow P. 1996. Making PCR. A Story of Biotechnology. Chicago: Chicago Univ. Press Rabinow P. 2004. Assembling ethics in an ecology of ignorance. Presented at First Conf. Synth. Biol., MIT, Cambridge, MA, June 10–12. http://openwetware.org/images/ 7/7a/SB1.0 Rabinow.pdf Rabinow P, Rose N. 2006. Biopower today. Biosocieties 1:195–218 Rapp R. 2000. Testing Women, Testing the Fetus: The Social Impact of Amniocentesis in America. New York: Routledge Rheinberger H-J. 1995. Beyond nature and culture: a note on medicine in the age of molecular biology. Sci. Context 8:249–63 Riles A. 2005. A new agenda for the cultural study of law: taking on the technicalities. Buffalo Law Rev. 53:973–1033 Rose N. 1999. The Powers of Freedom: Reframing Political Thought. Cambridge, UK: Cambridge Univ. Press Rose N. 2006. The Politics of Life Itself: Biomedicine, Power, and Subjectivity in the Twenty-First Century. Princeton, NJ: Princeton Univ. Press Rose N, Novas C. 2003. Biological citizenship. In Global Assemblages: Technology, Politics and Ethics as Anthropological Problems, ed. S Collier, A Ong, pp. 439–63. Oxford: Blackwell Rose N, O’Malley P, Valverde M. 2006. Governmentality. Annu. Rev. Law Soc. Sci. 2:83–104 Saks MJ, Koehler JJ. 2005. The coming paradigm shift in forensic identification science. Science 308:892–95 Scheffer T. 2004. Materialities of legal proceedings. Int. J. Semiot. Law 17:356–89 Sell S. 2003. Private Power, Public Law. Cambridge, UK: Cambridge Univ. Press Strathern M. 1992. After Nature: English Kinship in the Late Twentieth Century. Cambridge, UK: Cambridge Univ. Press Strathern M. 1996. Enabling identity? Biology, choice and the new reproductive technologies. In Questions of Cultural Identity, ed. S Hall, P du Gay, pp. 37–52. London: Routledge Strathern M. 1999. Property, Substance & Effect. Anthropological Essays on Persons and Things. London: Athlone Strathern M. 2001. The patent and the malanggan. Theory Cult. Soc. 18:1–26 Strathern M. 2006. Kinship, Law and the Unexpected: Relatives Are Always a Surprise. Cambridge, UK: Cambridge Univ. Press Sunder Rajan K. 2006. Biocapital: The Constitution of Postgenomic Life. Durham, NC: Duke Univ. Press Sunstein C. 2005. The Laws of Fear: Beyond the Precautionary Principle. Cambridge, UK: Cambridge Univ. Press Supiot A. 2007. Homo Juridicus: On the Anthropological Function of the Law. London: Verso www.annualreviews.org • Socio-Legal Implications of New Biotechnologies

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Swanson T, Goeschl T. 2005. Diffusion and distribution: the impacts on poor countries of technological enforcement within the biotechnology sector. See Maskus & Reichman 2005, pp. 669–94 Thackeray A, ed. 1998. Private Science. Biotechnology and the Rise of the Molecular Sciences. Philadelphia: Penn. Univ. Press Waldby C. 2002. Stem cells, tissue cultures and the production of biovalue. Health 6:305–23 Waldby C, Mitchell R. 2006. Tissue Economies: Blood, Organs and Cell Lines in Late Capitalism. Durham, NC: Duke Univ. Press

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The Frontiers of Intellectual Property: Expanded Protection versus New Models of Open Science Diana Rhoten1 and Walter W. Powell2 1

Social Science Research Council, New York, NY 10019; email: [email protected]

2

School of Education, Stanford University, Stanford, California 94305; email: [email protected]


Key Words


knowledge production, open source, commercialization of science, innovation, organizational change


Abstract The growing salience of intellectual property (IP) rights has reconfigured U.S. science, shifting it from the formerly separate realms of university and commercial science to an increasingly interconnected field of public and proprietary science. We assess both the magnitude and consequences of these developments, first describing the primary tools of IP and the changing nature of their influence on science, and then examining the effects of IP on the roles, rules, and relations of the scientific enterprise. We also consider the emergence of new models of scientific practice that blend both public and private. We debate whether current changes represent a transition or transformation in the relations between science and property. Finally, we argue that just as the public and private spheres of science may be converging, so must future scholarship if we are to answer harder questions about the appropriate balance between traditional logics of open science and the more recent regimes of proprietary science.

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Humanity needs practical men, who get the most out of their work, and, without forgetting the general good, safeguard their own interests. But humanity also needs dreamers, for whom the disinterested development of an enterprise is so captivating that it becomes impossible for them to devote their care to their own material profit . . . . [A] well-organized society should assure to such workers the efficient means of accomplishing their


task, in a life freed from material care and freely consecrated to research. Marie Curie (1946)

INTRODUCTION Long gone are the days when the investigator working in his or her lab could embark on a curiosity-driven process of discovery, “in a life freed from material care and freely consecrated to research.” As a young scientist who serendipitously discovered radium and polonium in the course of her doctoral research, Marie Curie argued against the idea that scientists should be motivated by the protection and profit that patents often afford. Following 20 years of freely giving away radium for cancer treatments and openly sharing information about the extraction process, Curie found herself forced to rethink her antipatent bias as the financial requirements of maintaining first-class research on radioactivity became burdensome. Although in the end she received financial support and collaboration from industrial patrons such as the Standard Chemical Company, she never accepted ownership of the radium that President Harding deeded her, nor did she patent any processing methods or potential medical applications (Macklis 2002). With its unfettered model of publication, science has traditionally promoted both disclosure and discovery via the creation of a common corpus of science, bestowing peer recognition and acclaim on those who make significant contributions to public knowledge (Merton 1988, Stephan 1996, Collins 1998). More recently, as ideas and mechanisms of 346

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property have been introduced, science has pursued proprietary solutions, viewing research results as entities to be owned and controlled by their creators or licensed for others’ use (Powell & Owen-Smith 1998). These cross-currents form the basis of the separate streams of public (often academic and/or basic) and proprietary (often industrial and/or applied) science by creating and maintaining distinctions about what forms of knowledge are produced and used, where, how, and by whom (Merton 1973; Dasgupta & David 1987, 1994). Since the days of Curie, science has become more restless, transcending the former structural divides between public and proprietary science and spilling across their organizational cultures. Concerns over ownership have flowed into the university at the same time that priorities of discovery have migrated to commercial enterprises (Powell et al. 1996, Kleinman & Vallas 2001). As these previously separate realms of scientific practice and production intermingle with greater frequency, a growing consensus exists that not only are the distinctions between public and proprietary science in flux, particularly at leading research universities and innovative, technology-based firms, but so too are their fundamental definitions (Callon & Foray 1994, Kennedy 2003, Geiger 2004). Although much has been written on the privatization and commercialization of public science, we see this transformation toward proprietization of science as marked more by complicated bidirectional currents. We posit that science is moving from a binary system of public versus proprietary science to more hybridized arrangements that combine elements of both public and private. These changes are driven in part by the very forces that once threatened Curie’s own belief in the openness of public science—the ever-growing need for funding. But we also underscore the powerful effects of novel research techniques and agendas, as well as alternative organizational settings and new professional incentives that are shaping twenty-first century science.


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The growing interdependencies between public and proprietary science, and the amalgamation of their respective institutional rules of the game, pose challenges for the immediate conduct of research as well as the long-term character of science (Gieryn 1983, Shapin 1994). Immediate ramifications are manifest, for example, in far-reaching claims to IP rights and the pursuit of income from licensing; the growth of partnerships and contracts between universities and industry; the proliferation of new boundary institutions, such as free-standing quasi-academic research centers; and the emergence of open source and open access models of scientific production and dissemination as both an extension of and a reaction to expanding IP rights. On the horizon, potential long-term implications of these institutional shifts include changes in the financial strategies and fiscal arrangements of universities; the research priorities of academic and industrial science sponsors and practitioners; the institutional relations between producers of scientific research and technological application; the professional practices and career paths of scientists; and the accessibility and availability of results to other potential users of scientific knowledge. Moreover, because these ripple effects undulate differently across research fields (e.g., life sciences, materials science, environmental science) as well as organizational types (e.g., public universities, private universities, for-profit industries), they threaten to fracture the scientific enterprise at the same time that they promise to transform it. Some analysts view this transformation critically, believing that the integration of academic and industry logics threatens to upset the collegial norms of scientific practice (e.g., Washburn 2005). Others suggest that such views are based on rather mythical historical accounts of science (Vallas & Kleinman 2007), thus biasing our ability to assess objectively the structural and cultural changes associated with a broader transition to a knowledge economy (e.g., Powell & Snellman 2004). The ensuing debates over transformation versus

transition have generated much interest in the causes and consequences of evolving IP rights in science.

IP Rights and Science Robert Merton (1973) characterized science as a social project and a public enterprise guided by the ideals of communalism, universalism, disinterestedness, originality, and skepticism (CUDOS). These aspirations reflected the belief that science depended not on individual advances alone but also on the sharing and elaborating of information, ideas, and research (Barber 1953, Eisenberg 1987, Rai 1999). The goal is to generate new, fundamental knowledge that is widely available, but not necessarily immediately practical or profitable (Merton 1988). This model of public scientific production is based on the concept and provision of public goods, which are understood in the economic sense to be free and nonrival (Olson 1967) and premised on the assumption that producers of scientific knowledge will voluntarily relinquish control of the ideas they have developed and contribute them unconditionally to the “scientific commons” (Eisenberg & Nelson 2002, Nelson 2004). The values associated with the conduct of science are neither inherent nor intrinsic; such motivations evolve from the institutional context in which inquiry is undertaken. Thus, although Merton’s norms of CUDOS may reflect the shared historical view of many working scientists, particularly those in universities and government laboratories, they are not embraced as the guiding principles in commercial and industrial contexts. For scientists in the latter venue, science is a private endeavor, where practice has a stronger orientation toward short-term, applied outcomes and a greater focus on proprietary solutions, with rewards concentrated in financial returns and ownership rights (Heller & Eisenberg 1998). The proprietary science model operates on the normative belief that scientific production and innovation are best www.annualreviews.org • The Frontiers of Intellectual Property

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leveraged by the incentive of financial profit and protection from free riders (Demsetz 1967, Teece 1986). This incentive-based view assumes that scientists are motivated by the opportunity to retain exclusive control of their ideas, enabling them to reap returns from their research investments (Arrow 1962). IP rights have traditionally represented the line of demarcation between the realms of communal and commercial research (Sampat 2003, David 2004). But recently this boundary has shifted and in many cases blurred. Stokes (1997) suggested that research in some fields has always had a more simultaneous dual use character, reflecting both scientific discovery and application. In response, Ziman (2000) argued that although, in theory, basic research may be produced in tandem with applied research, science today has a stronger orientation toward short-term, applied outcomes and a greater concern for commercial confidentiality and secrecy requirements. Even with the more “knowledge-plus” orientation of some disciplines and many U.S. universities, an approach firmly ensconced ever since the founding of the land-grant universities in the 1860s, many analysts believe that the contemporary scientific enterprise is undergoing a pronounced shift in which the norms of CUDOS must now coexist with the principles of PLACE—proprietary, local, authoritarian, commissioned, and expert science (Ziman 2000). This recent joining of science and property is neither inevitable nor necessarily optimal. Only a few decades ago, the very idea of merging these concepts would have been considered unnatural. Numerous challenges and possibilities are prompted by this recombination. On the one hand, science-driven markets have been created, and thousands of companies are contributing to the scientific corpus at little cost to the taxpayer. Projects such as the Human Genome have been completed at record pace, and new job opportunities have enabled students and scientists alike to escape a discouraging academic labor market. On the other hand, the marketization of science has


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accelerated problems of conflict of interest, patent litigation, and IP disputes (Kennedy 2001, Jaffe & Lerner 2004). Our task in this review is to gauge the structure and consequences of these changes, as heightened concerns surrounding IP ramify through public and proprietary science and reorganize their institutional relations. To accomplish this goal, we first describe the primary tools of IP rights as they have been introduced in the context of U.S. science. We then discuss the effects of these tools and accompanying changes in the definition of ownership on the reordering of relations between government, universities, and industry in the production of scientific knowledge. We review contemporary research on the consequences of a strong regime of IP, and suggest how the tools of IP influence the process of innovation.

THEORIES AND TOOLS OF INTELLECTUAL PROPERTY Early objects of property were physical assets, such as land and cattle. The advent of publishing drove the origins of a knowledge economy and the rise of intangible forms of property, including creative and intellectual works. As the production of knowledge generated increasing value, in both social and economic terms, questions arose as to the appropriability of such works and the benefits derived from them. In Western societies, these questions were addressed through the attribution of IP rights (Carruthers & Ariovich 2004, Tuomi 2004). Legal scholars use the term property in various ways depending on context. For example, definitions include “property interest as cognizable market advantage, property rule rather than liability rule, property privileges that include market alienability and sole dominion . . . ” (Boyle 2003, p. 30). From these definitions, a bundle of property rights emerges that may include rights to sell, lend, and bequeath. We use the phrase property to refer primarily to the right of owners to exclude nonowners and the right to extract


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payment as protections against unwanted trespassing on and/or use of one’s goods. Intellectual rights became known as intellectual property rights in the late seventeenth and eighteenth centuries, when legal mechanisms were first being considered in an effort to break up London booksellers’ monopolies over authored works and to ensure the future circulation of knowledge. Locke (1690) was one of the earliest writers to argue that ideas should be appropriated by those who originally produced them and thereafter protected for a period of time under the principle of natural law for the benefit of the public. He identified the trade-off between private ownership and the public domain, setting the stage for the enduring tension subsequently taken up by scholars concerned with the balance between individual incentive and collective benefit associated with the production and consumption of a shared resource (Hardin 1968; Rose 1993, 2003). By the nineteenth century, the idea that a creator possessed natural rights to the products of his or her labor began to mesh with economic arguments about fairness, which maintained that the creators of intellectual works should be compensated by society with exclusive rights to exploit their creation for a limited period of time. The view that state protection was necessary has a long lineage. Hobbes [1651 (1968)], predating Locke (1690), had argued that there was nothing natural about a right. He believed that property rights should not be appropriated and negotiated by individuals through ad hoc institutions, but rather should be determined and monitored by a state body. Bentham (1839) went further, arguing that it was the state’s duty not only to protect the inventor through formal means of appropriation, but also to create mechanisms to reward the inventor when others exploited his or her ideas. Bentham contended that it would be immoral to let society freely use the work of inventors without either the latter’s consent or compensation (Andersen 2004, Ramello 2005).

These protean philosophical debates laid the foundation for economic and legal debates over how to promote and protect knowledge production. A cornerstone argument was built on the assumption that knowledge is nonrival, nonexcludable, and, most importantly, an indivisible public good. Consequently, inventors will not invest in the creation of new ideas—particularly risky knowledge— without the promise of individual profit and control, even when such investment would yield social benefit and progress (Nelson 1959, Arrow 1962, Nordhaus 1969, North 1981). This concern with market failure underscored a persistent problem in encouraging a socially optimal level of investment in the production of novel science. Historically, governments have employed policies to ameliorate the impacts of market failure, including public patronage and property rights. The enduring challenge is how to minimize an innovation’s social costs (e.g., tax dollars, transaction costs, information asymmetries, deadweight losses) while maximizing its social benefits (Wright 1983, David 1993). Nelson (1992) argues that scientific knowledge is a latent public good rather than a pure public good, as its public and private aspects are largely determined by government regulation. As such, the efficacy of IP turns on the question of balance: Too little protection can dwarf incentives for creation, and too much control can increase social costs associated with limited dissemination and restricted use (Sampat 2003, Frischmann & Lemley 2007). We turn now to a review of the principal tools of IP—from patents and copyrights to trademarks and trade secrets—and their associated rights. These legal mechanisms for establishing ownership are at the core of debates over the evolving relationship between science and property. These tools may vary in terms of subject matter protected, exclusivity of rights granted, attribution criteria used, and incentives conferred, but they share the critical function of granting the inventor rights over the exploitation of an idea and a certain amount of market control as owner. www.annualreviews.org • The Frontiers of Intellectual Property

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Our discussion is largely limited to the United States, and we focus on patents, which have most profoundly influenced the changing nature of knowledge production and shifting patterns of organization in U.S. science.

Patents


In the United States, patent rights are implicit in the federal Constitution, which empowers Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Article I, Section 8). As established in the patent law of 1793, Section 101 of the U.S. patent code originally limited patent eligibility to “inventions” of a “new and useful process, machine, manufacture, or composition of matter” that has been created, changed, or altered by humans (35 USC § 101).1 These are the subjects of utility patents, the most common type of patent. The U.S. Patent and Trademark Office (USPTO) gradually extended patent law over the course of the nineteenth and twentieth centuries to cover an increasingly wide array of inventions and discoveries that were previously considered unpatentable. This expansion resulted in the codification of two other primary patent types: design patents and plant patents.2 To acquire a patent in any of these three basic categories, inventors must submit an application demonstrating three statutory criteria: (a) usefulness, which mandates that the invention have some application and not be simply an end in and of itself (35 USC § 101);

(b) novelty, which calls for evidence that the invention represents an advancement beyond existing ideas (35 USC § 102); and (c) nonobviousness, which requires that any advancement be significant and nontrivial (35 USC § 103). These criteria were intended to ensure that society only bears the social costs of patents for inventions that represent significant technical or scientific departures from existing entities in the public domain (Walterscheid 1998, Barton 2003). Upon application, inventors are required by U.S. patent law to disclose sufficient technical information enabling skilled practitioners to recreate the invention. The application of that information to new products may be restricted during the patent term to varying extents. Unlike most countries, the United States does not provide research exceptions to patent rights that would allow scientists to further advance knowledge about a patented invention (Samuelson 2003). In exchange for the creation and disclosure of a new idea, successful applicants gain the right to exclude others from commercially exploiting their idea for a specified period of time. When first introduced into law, patents had a life cycle of only seven years. By 1994, in compliance with the Trade-Related Aspects of Intellectual Property (TRIPS) agreement,3 the United States adopted the longest statutory period allowed: 20 years for utility and plant patents (an extension of three years from the previous patent term of 17 years) and 14 years for design patents. For these specified periods, a patent holder enjoys exclusivity, preventing others from making, using, selling, offering for sale, or importing his/her invention

1

The North American patenting system hinges on the concept of utility, which can be applied either to invention or to discovery. By contrast, the European system of patenting is based on the distinction between invention and discovery, allowing only the former to be subject to patentability [Article 52 (2), European Patent Convention].

2

In 1842, Congress extended the reach of patent statute to cover “new, original, and ornamental design for an article of manufacture” (design patents) (35 USC § 171). The Plant Patent Act of 1930 extended patent protection to “new varieties of asexually reproducing plants” (35 USC § 161– 164). 350

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3

TRIPS was created in 1994 as part of the Uruguay Round of GATT (General Agreement on Tariffs and Trade), with the goal of harmonizing national laws on IP rights. Under TRIPS, 130 signatories to GATT have agreed to enact national laws that establish minimum substantive standards of IP rights protection. The TRIPS agreement covers copyright and related rights as well as trademarks, industrial designs, patents (including the protection of pharmaceutical products, plant varieties, and computer programs), and undisclosed information including trade secrets and test data.


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without paying what often amount to hefty rents (35 USC § 133). Only when a patent expires does the idea join the public domain where others can freely use the idea. In addition to extensions in the period of exclusivity, the past 200 years have also witnessed consequential shifts in the nature of material patents protect. Based on the original intent of Section 101, a number of categories—including facts or pure ideas, natural laws, printed matter, pure mathematical algorithms, formulae or equations, and business methods—were all excluded from the realm of patentability on the grounds that they are objects of natural phenomena, not human productivity. Because these elements of nature were already in the public domain, allowing their commodification through property rights was not considered socially useful. The commitment to ensuring that they remained freely available was sustained in several landmark court cases in the late nineteenth and early twentieth centuries. O’Reilly v. Morse (1853) ruled against granting broad rights to a law of nature (the use of power of electric or galvanic current) beyond an immediate and particular application (the telegraph). In Funk Brothers v. Kalo Inoculant (1948), the Supreme Court held that a synergistic combination of bacteria for enriching farm soil was a nonpatentable phenomenon of nature. Brenner v. Manson (1966) determined that only end products are patentable, arguing that other inventions or innovations—such as chemical processing methods—should stay in the public domain. Gottschalk v. Benson (1972) concluded that converting numerical data into binary code in any type of general-purpose digital computer was unpatentable because it was “so abstract and sweeping” that it represented a fundamental idea rather than an inventive process (Dreyfuss 2004, Andrews et al. 2006). These cases emphasized a clear distinction between downstream products as patent eligible and upstream principles and processes of nature, raw materials, and basic ideas of research belonging to the public domain.

More recent cases, however, have overturned these once conventional views, extending patentability to previously disallowed areas, including “non-naturally occurring non-human multicellular living organisms, including animals” (USPTO 1987) (e.g., the oncomouse at Harvard), as well as mathematical algorithms and methods underlying even the most basic software programs and Internet applications in computer sciences. In 1980, in Diamond v. Chakrabarty, the Supreme Court distinguished between a product of nature and a patentable genetically modified bacterium cell that did not exist in nature, ruling that live, human-made, or genetically modified microorganisms are in fact patentable (Eisenberg 1987, Jaenischen 1995). In Diamond v. Diehr and Diamond v. Bradley, both decided in 1981, the Supreme Court allowed the patenting of software algorithms (Merges 1999). In the 1998 case of State Street Bank v. Signature Financial Group, a federal court approved the patent on Signature’s software system for evaluating and managing mutual funds, thus allowing the patentability of business processes. This ruling laid the foundation for patents on such business methods as Amazon.com’s one-click and Priceline.com’s reverse auction (Graham & Mowery 2005). Taken together, these decisions represent not only a shift in the parameters of what qualifies as patentable subject matter, but also a step up the ladder in terms of when patentability is allowed in the innovation chain. By affording the patenting of raw materials and basic tools, core features of the basic research enterprise became subject to ownership claims (Rai 2001, Kesselheim & Avorn 2005). The increase in patenting activity led to legislative and judicial steps to respond to growing IP claims. In 1982, Congress created the Court of Appeals for the Federal Circuit (CAFC), with nationwide jurisdiction for a variety of subject areas, including appeals on cases involving patent infringement and validity. As a unified judicial authority, CAFC was intended to bring uniformity and expertise to patent decisions. In reality, www.annualreviews.org • The Frontiers of Intellectual Property

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CAFC is widely recognized as having turned out to be a propatent apparatus, bolstering, rather than monitoring, the intensification of patenting (Merges 1992, Henderson et al. 1998, Jaffe & Lerner 2004). Among the many changes CAFC introduced was a new and extended interpretation of the “doctrine of equivalents,” which provided patent holders with stronger protection by broadening their prohibitory rights ( Jaffe 2000). Above all, according to most observers, CAFC eased the “nonobviousness” criterion, leaving many patent attorneys to declare the obviousness defense dead (Krastiner 1991).4 Following on the heels of the 1980 Diamond v. Chakrabarty decision and the 1987 USPTO ruling that opened up the domain of patentability to any biological material that required human intervention, the regulatory environment of CAFC created fertile ground for patents on discoveries in genetics and biotechnology, including patents on basic research tools and genes. This expansion consolidated the U.S. view of an equivalency between discovery and invention as the non-natural aspect of such inventions stemmed from their human-made attributes, even when the properties they reveal are natural ones (Coriat & Orsi 2002). Many scientists and analysts worry that such potentially broad property claims could stymie future scientific production as well as stifle technological innovation.


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Copyrights Similar to patents, copyright is meant to stimulate innovation by guaranteeing creators the opportunity to exploit the expression of their ideas in the marketplace. Under the Copyright Act (1976), copyright law applies to works of authorship—including literary, 4 In a recent unanimous decision in the case of KSR Int’l Co. v. Teleflex Inc. (April 30, 2007), the Supreme Court overturned the CAFC’s “teaching-suggestion-motivation” (TSM) test for finding a claimed invention obvious. The Court’s decision calls into question the validity of hundreds of thousands of claims in issued patents and will likely lead to a dramatic tightening of the nonobviousness clause.

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dramatic, musical, artistic, and certain other intellectual works (17 USC § 101). Copyright grants exclusive rights to the author to reproduce the work, as well as some form of exclusive right to modify, disseminate, and publicly perform or display the work (17 USC § 106). Unlike patents, copyright protection kicks in spontaneously, without application or examination but upon fixation of the authored work in a tangible medium (17 USC § 101). Because protection is extended on the basis of a “minimal originality” criterion, copyright only shelters the original expression found in the work at the time of fixation (17 USC § 902). This means that, in contrast to patent law, copyright law is designed to deter direct copying of the author’s initial and particular articulation of any set of ideas or significant fragment thereof. Thus, copyright theoretically allows the underlying individual ideas themselves to be freely reused in other forms or representations even during the period of protection. The only exception is that authors retain exclusive rights to prepare derivative works based upon the copyrighted work (17 USC § 106). By allowing appropriation of the foundational ideas and functional attributes of a work, copyright law grants fewer powers of control to the author over his/her ideas than patent law extends to the inventor. Copyright law does offer longer—and ever expanding— periods of protection than patents do, however. The duration of copyright protection in the United States was originally scheduled as a 14-year term, but it expanded incrementally to 28 years and potentially to well over 100 years (Lessig 2001). The 1998 Sonny Bono Copyright Term Extension Act extended copyright periods to life of the author plus 70 years, and for work-for-hire to 95 years postpublication (these terms apply to works fixed after December 31, 1977) (Samuelson 2003). Although copyright law is not the primary IP arrangement operating in science and technology, copyright presides over three critical spheres of activity. First, although


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software development has traditionally been the purview of copyright law, patent law has permeated this arena over the past two decades (Nalley 2000). The merging of these two regimes has added both complication and complementarity to the protection and, consequently, the application of software innovations as tools of scientific research (Graham & Mowery 2005, Menell & Scotchmer 2007). Second, copyright law has always covered scientific texts (i.e., reports, articles). In the era of digital infrastructure and a culture of electronic publishing, however, new questions of information management and ownership are testing old copyright rules governing access to, as well as free and fair use of, the growing array of electronic journals used by scientists in their daily work. Most notable here is the 1998 Digital Millennium Copyright Act, which updated the Copyright Act (17 USC) to meet the demands of the global digital era and to conform U.S. law to the requirements of the World Intellectual Property Organization (1996). Among its many provisions, the act imposes rules prohibiting the circumvention of technological measures to protect copyright, heightens the penalties for copyright infringement on the Internet, and provides an update of the rules and procedures regarding archival preservation. Prior to 1998, copyright law made clear exceptions in “fair use” and the right of “first sale” for educational purposes (Lessig 2003). Lastly, given the burgeoning role of collaborative, synthetic, and cyber-based science (Rhoten & Parker 2004, Rhoten & Pfirman 2007), copyright law offers some weak—but strengthening—protection to the creation, compilation, and dissemination of databases. Although discreet data within a database are generally considered to represent unprotectable facts, the selection and arrangement of those data—in essence, the authorship of the database—may be copyrightable when their assemblage is not dictated by their structure or other technical constraints (Burk 2007). Laws such as the 1996 European Union Directive on the legal protection of databases

(Directive 96/9/EC) are significant in this regard. In addition to harmonizing EU member state rules about copyright protection for the selection and arrangement of data in databases, the EU Directive also establishes new rules of IP protection. Not only do database creators in the EU now have 15 years of exclusive rights to control the extraction and reuse of data from their databases, any further investments warrant renewed periods of protection. Such provisions seemingly allow database makers and publishers to enjoy perpetual protection as long as they update or maintain databases. Several bills to provide similar EU-style database protection have been introduced but not yet passed in the U.S. Congress (Reichman & Uhlir 1999, Samuelson 2003). Thus, like patent law, copyright law has expanded considerably in the past century, reaching across new territories and further upstream.

Trade Secrets and Trademarks Whereas a trade secret is “a formula, pattern, compilation, program device, method, technique, or process” that derives independent economic value from being generally not known (UTSA, §1(4) 1979), a trademark is “any word, name, symbol or device, or any combination thereof” that an inventor uses to identify and distinguish his or her goods or services (15 USC § 1127). Like other IP rights mechanisms, trade secrets and trademarks can also be seen as legal instruments designed to promote innovation, albeit more indirectly than the others. In lieu of granting exclusive ownership over an invention for a limited period of time, trade secrets offer potentially ongoing concealment of the information or know-how pertaining to the production of that invention. Similarly, trademarks indefinitely uphold the reputation and integrity of the invention in the marketplace (Landes & Posner 1987, Menell 1999). In contrast to the often excessive lead time and considerable expense required to secure patents, the theoretically permanent www.annualreviews.org • The Frontiers of Intellectual Property

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protection that trade secrets and trademarks offer can prompt some inventors to prefer these rights. Moreover, in contrast to patents, wherein technical information must be disclosed to secure protection, trade secret law carries a nondisclosure clause that helps avoid potential spillover effects by preventing appropriation of underlying knowledge (Bhattacharya & Guriev 2006). Trade secrecy’s advantages, however, carry certain risks. Although legal steps can be taken to guard against acts of malfeasance such as industrial espionage or breach of contract, the holder of a trade secret cannot exclude anyone from using his/her knowledge if it is independently discovered or legally acquired through either accidental disclosure or reverse engineering (Friedman et al. 1991). Similarly, trademark law provides an innovator with legally enforceable rights against others’ adoption of similar identifying marks, but it confers no privileges to him or her over the underlying innovation, which remains free for anyone to copy and/or sell under a different trademark. In many scientific, technological, and cultural fields, particularly those in which product innovation is both rapid and cumulative and/or in which inventors are able to conceal their innovation from accidental disclosure and reverse engineering, trade secrets are the primary means of IP protection (Levin et al. 1987, Bulut & Moschini 2006). In highvelocity industries patent protection is of little value, as the speed of the product cycle laps that of the patent office. Similarly, by increasing customer recognition, the licensing of trademarks has become a major profit lever for many scientific firms as well as publishers (Ramello 2006). For example, the publishers Thomson, Reed Elsevier, and Wolters Kluwer now trademark the brand names of all journals in their catalogs. By successfully using trademarks to establish a strong brand identity for their product lines, these big three have also subsequently achieved a high level of control over the international journal market.


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Summary Patents require novelty, copyrights necessitate originality, trade secrets mandate confidentiality, and trademarks compel identity. Over time, the changes in IP protection reflect a pattern: new objects and subjects of property, a shifting locus of enforcement, and longer terms of protection. The implications of this trend bear considerably on the course of science, both positively and negatively. First, expanded IP rights continue to serve utilitarian logics, benefiting both science and society through principles of appropriation, exclusivity, and incentive. Moreover, with the exception of trade secrets, the tools of IP continue to encourage, or require, a certain level of information disclosure, ensuring some dissemination even while sheltering the invention or innovation. Finally, although statutory periods of protection have been lengthened over the past two centuries, U.S. IP (again, trade secrets excepted) sustains traditional values of unrestricted access and sharing of knowledge by maintaining that restrictions on proprietary control be repealed at the end of specified periods. On the debit side, however, the focus of IP rights has moved further and further upstream over the past century, to the point of now protecting living organisms, basic research tools, and procedural methods as well as mathematical algorithms, databases, and journal articles. Not only were all these items once considered outside the purview of IP, they also represent areas that encompass the most important scientific discoveries of recent decades, as well as some of the most essential raw materials necessary to scientific practice in future years. This incursion may have suboptimal consequences for science from a societal perspective. For example, difficulties in bargaining between upstream and downstream researchers could result in delays in research, a deceleration of innovation, and the delivery of fewer and more costly products to the market (Rai 1999, Shapiro 2001, Boyle 2003). Consequently, although incentives for IP protection

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are firmly in place and dangers of free riding mitigated, there are new threats to innovation caused by the proliferation of ownership claims and, consequentially, the proprietization of science. We turn now to research on the effects of this new expanded IP regime on the structure and culture of U.S. science.

THE EFFECTS OF EXPANDING IP RIGHTS ON THE LANDSCAPE OF U.S. SCIENCE The spheres of public and proprietary science, representing the stocks and flows of ideas, have long existed in tension with one another, in a state of fragile equilibrium. Dasgupta & David (1994) made the powerful point that what separated these two realms was neither the law nor the organization of science but the differing normative orientations of these two realms. Rosenberg & Nelson (1994) noted that science in the United States has always had a more practical character than its European counterparts, thus opening the door for proprietary interests to comingle with the public goals of research and development. But after decades of relative stability, former divisions between public and proprietary science have given way to greater intersections between the two spheres and prompted the emergence of practices and organizational arrangements that blend the two domains. In the aftermath of World War II, U.S. science policy recognized the critical role of the physical and social sciences in the war effort and embraced strong public support for research: “[W]e are entering a period when science needs and deserves increased support from public funds . . . . As long as [colleges, universities, and research centers] are vigorous and healthy and their scientists are free to pursue the truth wherever it may lead, there will be a flow of new scientific knowledge to those who can apply it” (Bush 1945, p. 12). Science in this era enjoyed government patronage in return for the priority of discovery and the disclosure of results—an institutional ar-

rangement between the government and universities referred to as America’s “social contract for science.” This institutional arrangement was fueled by federal grants from agencies such as the National Institutes of Health or the National Science Foundation, awarded on the basis of peer review, which helped separate personal and financial interests from scientific considerations (Guston 2000). During this halcyon era of “big science” (Gallison & Hevly 1994), the federal government’s share of funding for all U.S. research and development never fell below 50% (Natl. Sci. Board 2006, their table 4.5).5 Moreover, the government generally opted to place the results of publicly funded scientific research in the public domain and make them freely available to academic researchers or other parties, without requiring licensing rights. The combination of ample funding and open access was consistent with the Mertonian view of communal public science. This era came to a crashing halt in the 1980s, however.

Commercializing Public Science: New Partnerships between University and Industry The theme of declining U.S. competitiveness, particularly in high-tech markets, echoed throughout the 1980s. Although many reasons were proffered, two common rationales were the failure to move ideas from the lab bench into production, and, paradoxically, the ease of access to U.S. research by foreign firms (Dertouzos et al. 1989, Nelson & Wright 1994). A series of new government policies pursued a shift from a model of science based on the philosophy of the public domain to one leaning toward notions of proprietary ownership and control. These policies represented a deliberate intention to alter the landscape of scientific production and innovation.

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It was not until 1979 that the federal share of R&D funding in the United States first fell below 50%, where it has since remained, reaching as low as 24.9% in 2000 and climbing to 39.9% in 2004 (Natl. Sci. Board 2006).

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A key institutional reconfiguration involved new partnerships between industry and universities. Federal policies such as the Bayh-Dole Act of 1980, the StevensonWydler Technology Innovation Act of 1980, and the Economic Recovery Tax Act of 1981 altered university-industry relations by allowing universities to retain the property rights from innovations arising from federally funded research projects and mandating higher education’s participation in technology transfer. Empowered with new patenting capabilities, universities were assigned a new role in the capital accumulation process. Simultaneously, several other factors accelerated partnerships between science and industry, notably retrenchment in financial support for higher education (Slaughter & Rhoades 1996), dramatic technological breakthroughs that fostered the emergence of new industries in the biomedical and computer science fields, and the growth of the venture capital industry (Gompers & Lerner 1999). Debates remain about the degree to which these changes represent a fundamental shift in the institutional norms and logics of university science, away from discovery-oriented research and toward market-driven applications. Additionally, the extent of the influence of policy initiatives and technological innovation remains unclear. Regardless, university patents began to mushroom (Mowery et al. 2004). Before 1980, U.S. universities generated fewer than 250 patents per year. By 1991, that number exceeded 1000, and reached 2500 in 1998 before leveling off. To be sure, the lion’s share of this patenting activity came from a very select group of universities (Mowery et al. 1999, Powell et al. 2007). Empirical evidence suggests that as rewards from these universities’ involvement in proprietary science feed back and enable further investments, this pattern of patent concentration intensifies an already strong stratification system among research institutions and disciplines and in scientific careers (Owen-Smith 2003). Beyond altering the academic land-


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scape, some authors also contend, the patent upsurge resulted in an overall decline in their quality, i.e., declining impact measured by citations (Henderson et al. 1998). Others argue that, over time, universities have learned to patent more effectively and build productive relations with industrial partners (Mowery et al. 2002, Owen-Smith & Powell 2003). As new relations were forged between research universities and technology-based firms, individual scientists began to act as amphibious creatures, moving back and forth as consultants and advisors and as founders of university spin-off firms. Studies have demonstrated that by the late 1980s more than half of the life sciences faculty in the United States had consulted for industry and that approximately 7% held equity in a company that was performing work related to their research (Blumenthal 2003). Moreover, as individuals from a select number of universities traverse the former divides between university and industry science, they often receive both federal research support and industry funding (Blumenthal et al. 1996). These trends have had a notable impact on the allocation of professional rewards and the structure of scientific careers, creating a new fault line for stratification (Whittington & Smith-Doerr 2005, Stuart & Ding 2006).

Proprietary-Public Science: New Models of Corporate Science As the relations between public and proprietary science shifted, the nature of industrial R&D was also changing. Beginning in the 1980s, many of the defining characteristics of most large twentieth century corporations, including job security, a hierarchical division of labor, and geographical stability, began to unravel (Powell 2001). Driven by an increased desire for flexibility in manufacturing, the challenges of inexpensive foreign labor, and pressures from Wall Street to meet demands for quarterly profits and growth, companies


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began to shrink their work forces and make employment much more contingent and flexible. Broadly speaking, these efforts took two routes. The common low road of sweating labor through outsourcing, offshoring production, and lower wages has had limited impact, thus far, on the world of science and technology. The higher road of more porous organizational boundaries, greater reliance on external sources of R&D, and new collaborative forms of production has, in contrast, introduced a “network logic of production” into a range of technologically sophisticated industries, from biotechnology to semiconductors, design and apparel, and telecommunications (Powell 1990). This new logic of production involved a transformation in the standard recipes for jobs, organizations, and industries. The change was simultaneously structural and cultural. The structural features included (a) shorter product cycles, (b) markets in which end users become deeply integrated into the production process, and (c) fast-paced learning races with both competitors and collaborators. These developments led participants to turn to new modes of production, just-intime delivery, and extensive use of alliances to access information and resources. These changes were mutually reinforcing, as reducing internal hierarchy while relying on external sources of expertise pushed organizations to revamp their communication systems and reward structures. These developments were most pronounced in industrial settings where knowledge was developing rapidly and its sources were widely distributed (Powell et al. 1996). In these fields, turning to cheap outsourcing or hollowing out internal capability proved fatal. Instead, companies learned to adjust to sharing information with competitors (von Hippel 1988), developing tools and routines for “studied trust,” that is, learning how to work with other parties while carefully monitoring such efforts (Sabel 1994), and deepening their “absorptive capacity” (Cohen

& Levinthal 1990). Put differently, to understand the news, companies have to have a hand in making it. These structural changes, in turn, have pronounced relational and cultural effects. In leading-edge industries, scientists in private sector firms now make significant contributions to the corpus of public science (Evans & Powell 2007). These firms are also tightly coupled with university researchers, government labs, and nonprofit research institutes (Mowery 1999, Merrill & Cooper 1999). Culturally, the accompanying organizational arrangements transform the workplace by altering discourse around what is considered public and private, as well as principles of exchange. In a select but growing number of companies, from Genentech to Google to Nokia, the corporate workplace has become the new home, no longer a place severed from private life, but a place where work and play and even community become intertwined. These changes are important as they recast definitions of exchange and reciprocity, private property and public goods, and forms of production. Indeed, some question how the old-fashioned research university will continue to attract the best research minds in the face of employment options in these more relational corporate settings (Kleinman & Vallas 2001). These new industrial settings are both enhanced and sustained by the growing interdisciplinarity of work (Gibbons et al. 1994), and a focus on multiple skills deployed in a world of fast-changing, short-term projects (Grabher 2002). Computing and telecommunications networks facilitate mobility across topics and projects, which in turn enable more rapid information decentralization and dissemination. Benkler (2004, p. 1110; 2006, p. 63) dubs this new form of information access and sharing “commons-based production.” Below, we explore how these forms of work are possibly transcending the older distinction between public science and private science.


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Public-Proprietary Science: Efforts to Recover Openness


As IP rights have expanded and strengthened, a number of analysts have asked whether the cumulative consequences are straining the efficiency and effectiveness of the scientific enterprise (Natl. Res. Counc. 1997, 1999, 2004). Some fear that enhanced IP rights, particularly at early stages of research, may be hindering the circulation of scientific knowledge and thus multiplying the social costs of innovation (Heller & Eisenberg 1998, Rai & Eisenberg 2003, Reichman & Uhlir 2003). Efforts to reverse the trend toward proprietization have generated initiatives to restore, preserve, and/or extend historically communal values of public science. These efforts have ranged from rigorous examinations of IP law to the formation of new paradigms of operation, and have been variably identified under the motives of “defending the public domain” (Lange 1981, Litman 1990) and “creating a new commons” (Benkler 2002). Although these terms vary in their theoretical specifications, they share the common goal of representing the “opposite of property” or the “instantiation of intellectual property’s ‘outside’” (Boyle 2003, p. 64). Within these efforts, the open source and open access movements are of particular interest, as both actively resist the extension of monopoly and control through an emphasis on sharing information. Often originating outside of formal organizations, open source initiatives have facilitated the development of new models of production and innovation (Feller et al. 2005, von Hippel 2005, Benkler 2006). Simultaneously, the public and nonprofit sectors have called for alternative approaches dedicated to public knowledge redistribution and dissemination (Esanu & Uhlir 2004, Willinsky 2006). Whereas the first group of activities is more economically motivated, often seeking to circumvent current bottlenecks and overcome obstacles to technological progress, the second can be considered more political in its motivations,

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working to reduce barriers to entry and democratize knowledge. The open source movement is based on two innovations: one legal, the other organizational. The first innovation, originally rooted in the free software movement and which much of the open source software movement has adopted, is known as the GNU General Public License (GPL).6 Essentially, GPL practices allow anyone possessing a copy of free (or open) software the right to use that software, access and alter its source code, and distribute modified or unmodified versions at no cost, provided that subsequent versions comply with the terms of the GPL (see the GNU Library General Public License, available at http:// www.gnu.org/copyleft/library.txt). Not all open source licenses go as far as the GPL “copyleft” model, limiting requirements on users and modifiers to practices of proper attribution. The second innovation is steeped in a logic of strength in numbers and the wisdom of crowds. Open source software has primarily depended on the distributed work of thousands of volunteer developers, testers, and users. These volunteers have no proprietary claim but are motivated by a strong personal stake in the ideas, processes, and innovations (Lee & Cole 2003, Lakhani & von Hippel 2003). Open source software communities have shown that implementing norms of sharing and disclosure in a distributed peer-to-peer setting can result in the creation of complex technological products that approach, and sometimes rival, the scope and quality of similar products produced by proprietary efforts (Feller et al. 2005, Lakhani et al. 2007). Open source software alternatives have achieved a significant or greater market share 6

Free and open software have similar licensing practices but differ philosophically in that open source emphasizes the practical benefits, whereas free software focuses on a moral commitment to the practices GPL allows (von Hippel & von Krogh 2003).


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than proprietary software in a number of areas. The often cited example is the Linux Apache web server versus Microsoft’s Internet Information Services (IIS), with market shares in March 2007 of 59% and 31%, respectively (Netcraft 2007). The diffusion of open source projects has been attributed to development speed and to the reliability, portability, and scalability of the resulting software. In turn, these characteristics are driven by both open inspection and contributions of numerous interested individuals (Raymond 2001, Weber 2004, MacCormack et al. 2006). Whether this model is limited to software or could be exported to other fields of scientific production and technological innovation is an open question (Lerner & Tirole 2002, David 2004). Academic analogs to open source models are cropping up in scientific encyclopedias (Giles 2005) and in various biological fields (Rai 2005). As computing and biology converge, there are signs that “in the same way programmers find bugs and write patches, biologists look for proteins (‘targets’) and select chemicals (‘drug candidates’) that bind to them and affect their behavior in desirable ways” (Maurer et al. 2004). Moreover, open source biology users can own the patents to their creations that emerge but are not able to hinder others from using the original shared information to develop similar products. Evidence of successful open source biology is appearing in initiatives such as Ensemble Genome Browser, the National Center for Biotechnology Information, the Synaptic Leap, and the Tropical Disease Initiative (Kepler et al. 2006). Open source represents a sharply different approach to IP, but viewing it strictly from a business perspective elides recognition of open source’s close connections to longstanding traditions of open science and the associated rewards of peer recognition and acclaim (Raymond 2001). Von Hippel & von Krogh (2003, p. 209) argue that the open source phenomenon demonstrates an “exemplar of a compound of ‘private-collective’

model of innovation” that contains elements of both proprietary and public models of knowledge production, which may offer society the best of both worlds under many conditions. But such acclaim aside, it is important to recognize that open source models depend heavily on social authority, whereby particular individuals exert substantial direction over production by dent of their charisma and/or skills (Weber 2004). But the expression and execution of this authority are more ex post than ex ante project development (Lakhani & Wolf 2005). The sociologically intriguing feature of the open source community is the viability of a gift economy based on multiple currencies of reward and multiple status orders. Alongside open source, there has also been a revival of the image of the knowledge commons by contemporary open access social movements. Most commonly associated with publications, open access science has focused on making peer-reviewed, online research and scholarship freely accessible to a broader population. A number of publishers have now begun to allow authors to contribute their published work to open institutional repositories or eprint archives at their institutions. Some journals make their contents available after a period of months or years. Moreover, large archives such as High Wire Press provide free access to back issues, and approximately 2000 or so open access journals (5% of current peerreviewed titles) make their content immediately available at no charge (Willinsky 2005). Despite growth in the number of research papers available, it is estimated that only approximately 20% of papers published annually are open access, principally through author selfarchiving in institutional archives. Research indicates, however, that open access papers are cited more often than password protected articles, even when controlling for other predictive factors (Eysenbach 2006). Although the phenomenon has not been studied widely, social networks that emphasize the virtues of respecting a permanent commons in human and plant genetic material are becoming more vocal (e.g., the “no www.annualreviews.org • The Frontiers of Intellectual Property

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patents on life” movement). The open access movement has been extended to research data and influenced a range of important scientific initiatives, from the Human Genome Project to more recent decisions by private industry (such as Novartis, which made its results of a genomic analysis of type 2 diabetes freely available on the Internet) (Pincock 2007). The willingness of some private firms in the patent-oriented industries of biotechnology and biomedicine to contribute to the public domain provides further evidence that even commercial entities are concerned that a stringent property rights regime may create barriers to subsequent research and product development (Rai & Eisenberg 2003). The identified need for a viable public domain in the area of commercial agricultural research also motivated the negotiation of the International Treaty on Plant Genetic Resources (2001), which created an agricultural commons and a protected public domain in 35 of the world’s most important crop and forage plants. Although the modern state continues to be the primary locus of property enforcement, the pressure for enhanced property rights has expanded from the national to the supranational level in the wake of global markets (Carruthers & Ariovich 2004). The relationship between IP and international trade has emerged as one of the most controversial issues in global negotiations, with the debate focusing primarily on the implications of the TRIPS agreement for the global economy in general and for developing countries in particular (Srinivasan 1998, Maskus & Reichman 2004). The TRIPS agreement was premised on the goal of harmonizing global IP rights laws. By establishing high minimum standards from the outset (with some flexibility in their application), TRIPS has progressed toward global IP norms. In terms of efficiency, this standardization represents a considerable accomplishment (Sherwood 1993). With respect to global justice, the adoption of U.S.-style intellectual property laws is viewed as disadvantageous for developing countries,


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particularly where patents and exclusive licenses apply to both basic and applied research (Hamilton 1997, Sell 2002). For developing countries, a key consequence in adopting TRIPS is an increased restriction on access to essential medicines, including AIDS drugs and other patented pharmaceuticals and products. Prior to TRIPS, developing countries could create generic drugs (or other products) using technologies and discoveries now covered by patents. Under TRIPS, however, they are limited by the agreement’s 20-year patent term. The potential impacts are enormous, as access to patented medicines comes at a very high price. For example, Bristol-Myers Squibb sold the patented antiretroviral drug, d4T, for more than $1600 per patient per year in South Africa, while the generic form of this drug was sold for $55 per patient per year.7 In February 2003, the United Nations Development Program (UNDP) released a report that was highly critical of the agreement and urged developing countries to “explore alternative mechanisms for protecting intellectual property rights” (UNDP 2003, p. 11). Increasingly broad and vocal consortiums of nongovernmental actors are challenging the legitimacy of TRIPS, focusing primarily on provisions of the treaty that affect public health, human rights, biodiversity, and plant genetic resources (Helfer 2004). Under this flag, global open access movements to recognize and safeguard those traditionally excluded from

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Developing countries were able to negotiate certain exceptions. Article 31 permits any World Trade Organizations (WTO) member country to license patents to domestic businesses in order to allow countries to manufacture low-cost generic drugs in the face of national health crises or in response to other national emergencies. However, this compulsory licensing exception is limited to the manufacture of generic products for domestic use, thereby imposing hardship on member countries lacking the infrastructure to manufacture generics and also disallowing member countries from exporting generic drugs to another country in need. In 2003, the WTO General Council added flexibility to Article 31, enabling member countries to export pharmaceutical products manufactured under a compulsory license to WTO member countries that do not have the capacity to manufacture the drugs (Lieberwitz 2005).


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or disadvantaged by current IP regimes have pushed the question of proprietization of scientific knowledge into the broader realm of international policymaking and fundamental questions of human rights, environmental sustainability, and societal development. The line between public and proprietary science is just as porous in open source and open access initiatives as it is with new corporate models of science. Consequently, these new organizational forms’ place in the older dichotomy of public domain and IP remains unclear. In both instances, the once separate norms and practices of public versus proprietary science are giving way to a single, increasingly interconnected field of publicproprietary science—in Stark’s (2001) terms, a heterarchy—marked by multiple anomalies, tensions, and ironies. Just as IP law can be viewed as an impoverishment of the public domain, openness and access can dampen incentives that allow innovations to be created and incorporated into the public domain (Samuelson 2003). Somehow, balance needs to be struck between traditional logics of public science and more recent regimes of proprietary science if new hybrid models are to flourish. We examine this balance in the next section.

CURRENT RESEARCH ON CONSEQUENCES FOR SCIENCE OF A STRONG IP RIGHTS REGIME The predominant lines of research on the consequences of expanding IP rights for contemporary science draw on three themes: (a) policy frameworks (Cole 1993, Cohen & Noll 1994, Leyesdorff & Etzkowitz 1996); (b) academic capitalism (Slaughter & Leslie 1997, Kleinman & Vallas 2001); and (c) academic entrepreneurship (Zucker et al. 1998, Shane 2004). Each of these rubrics provides useful, albeit partial, accounts of the relationship between IP and the transformation of science. Policy-focused work attends to government-industry relations,

whereas academic capitalism arguments contend federal policies have promoted an embrace between university and industry, and the entrepreneurship literature highlights innovative faculty, institutions, and start-up firms. We take up each strand of work in turn, considering its contributions and limitations.

Policy Frameworks The past two decades have witnessed an ongoing debate in the United States over the effect of federal policies, such as the Bayh-Dole Act, on the incursion of patenting in science. At the heart of the debate are two interrelated questions: (a) whether the expansion of a patenting culture undermines the norms of open science, and (b) whether the intensification of patenting has accelerated or retarded the development of basic and commercial research. Proponents of Bayh-Dole argue that the act was necessary because prior to 1980 many federally funded discoveries were not commercialized and the act provided an impetus for federal technology transfer (Cole 1993, Economist 2002). Proponents of a “triple helix” between government, industry, and universities argued for a new set of relationships that would catalyze opportunities for both proprietary and public science. The Bayh-Dole legislation authorized universities to pursue technology transfer and enabled active involvement in patenting university research. University technology transfer offices popped up like mushrooms after a good rain, patenting and licensing increased, and considerable revenues were generated. Nonetheless, most technology licensing offices barely break even, fewer than 20 universities garner significant returns to licensing, and only a handful of licenses on any campus generate more than $1 million (Trune & Goslin 1998, Powell et al. 2007). Critics of Bayh-Dole also question the theoretical and empirical assumptions on which the act was based and argue that the use of patents in such areas as basic biological www.annualreviews.org • The Frontiers of Intellectual Property

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research frustrate information sharing in the research community (Eisenberg 1996). Former Stanford University president and editor of Science, Donald Kennedy (2005, p. 1375), observed: “To those who had worried about technology transfer, it’s a huge success. To others, who expressed concern about university/corporate relations or mourn the enclosure of the scientific ‘knowledge commons,’ it looks more like a bad deal.” Leaf & Burke (2005), in a much-discussed Fortune article, argue that the strong property orientation ushered in by Bayh-Dole has hindered productive university-industry relations. Sampat (2003) forcefully argues that evidence in support of the view that patenting promotes innovation is weaker than conventionally believed. As universities and firms make IP claims to partial or fragmented knowledge and to early stage inventions, patents can increase the costs of R&D and slow innovation. Much of the research as well as the claims of pundits and proponents of Bayh-Dole start from an unexamined premise that university involvement in patenting would not have occurred absent legislation (Zacks 2000). Mowery and colleagues have shown, however, that a handful of highly engaged U.S. universities were successfully commercializing university research well before legislation was passed (Mowery & Sampat 2001, Mowery et al. 2004). At Stanford University, three of the most lucrative patents in the history of technology transfer at any university were filed in the 1970s, and arguments with federal agencies were negotiated individually with ease (Nelson 2005, Powell et al. 2007). Thus, despite a growing proprietary imprint on university science, many of the current analyses conflate the source of this trend and assign outcomes as a result of this early legislation. Consequently, although studies in this genre have demonstrated that universities are more active in claiming IP rights, they often fail to identify how institutional policies produced these outcomes, either in chronological time or regulatory effect (Boettiger & Bennett


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2006). The detailed review by Phan & Siegel (2006) is a useful first step at assessing the factors that determine the effectiveness of technology transfer practices. Still, little research distinguishes how new, commercially oriented policies interact with traditional, communally based practices of different scientific fields and institutions. One notable exception is work on impediments to sharing biomedical research materials. Walsh et al. (2007) find that academic patenting may not hinder knowledge flow nearly as much as commercial incentives associated with starting spin-off companies and greater secrecy among researchers. Such practical excludability, in their view, presently trumps legal excludability.

Academic Capitalism and Marketization As proprietary rights have expanded across the scientific enterprise, new financial arrangements between universities and industry have gained currency, extending the reach of private firms into university science. The analytic challenge is to examine how such relationships reshape the character and conduct of science. Critics point to the presence of such new partnerships as evidence of the commercialization and privatization of university-based scientific research and identify the relationships themselves as a profound and deliberate incursion of IP concerns into the university (Rudy et al. 2007). Academic capitalism arguments explain the rise of new university-industry collaborations by highlighting the economic and political pressures on educational institutions to compete in the research marketplace through protecting and profiting from their investments (Slaughter & Rhoades 1996, 2004; Etzkowitz & Stevens 1998). To be sure, financial pressures are quite considerable, especially at public universities. But few of these arguments regarding fiscal reasons for entry into the research marketplace reconcile the fact that the most prestigious and wellfunded universities, such as MIT, Stanford,


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and UCSF, were the first to commercialize basic research, often far in advance of any legislation. Moreover, the primary reference point for many investigations centers on cases involving the exchange of funding and research results between a corporation and a university, ignoring numerous other forms of academicindustry linkages and their implications for science, training, and research funding. Although notable cases of university-industry partnerships receive considerable press attention (Washburn 2005), overall funding by the private sector for university research has not grown markedly and has even declined in recent years (Rapoport 2006). This line of work emphasizes that universities took steps in the direction of marketization as a means to offset reductions in government funding. Such market-based calculations have indeed spread throughout many universities, so that managing universities like a business has become commonplace. Although we see this trend apparent in admissions efforts and intercollegiate sports (Bok 2003), evidence that the research enterprise has become more like a business is much less clear. Vallas & Kleinman (2007) are a notable exception, as they document the use of business metrics to evaluate research units within universities as part of the asymmetric convergence between business and the academy. Slaughter & Leslie (1997) voice the concern that universities have lost a privileged position in society as neutral sites of moral authority and are more frequently seen as self-interested actors, clearly a claim that bears merit. Arguments that the reward structure of universities has changed, so that fields located closer to the market are more valued, are more difficult to assess, as disciplines and professional schools in the practical arts have held the favor of campus administrators since the late nineteenth century (Nelson & Rosenberg 1994). Nonetheless, those faculty involved with industry are now rewarded to a significant degree as a result of current commercialization trends (Whittington & Smith-Doerr 2005, Colyvas & Powell 2007).

Academic Entrepreneurship Another line of work examines the spread of entrepreneurial efforts by faculty and universities, seeking to account for why particular faculty, departments, and universities actively patent and form spin-off companies based on university discoveries (Zucker et al. 1998, Thursby & Thursby 2002). This literature tends to view such entrepreneurial efforts positively, noting that both university science and local economic growth are enhanced in the process. These benefits may come with new structural risks, however. Researchers have identified key attributes, such as research productivity, career stage, and prior experience with collaborative work, which influence whether or not university scientists are drawn into the world of commerce (Shane 2004, Stuart & Ding 2006). Specifically, Whittington & Smith-Doerr (2005) and Stuart & Ding (2006) find that academic patenting has created a new frontier for gender stratification, with male faculty greatly outpacing women. In the entrepreneurship literature, admiration exists for the successful cases, such as Stanford and MIT, and the propitious relationships these universities have with their surrounding communities. Whether the reference point is Silicon Valley or Kendall Square, efforts at emulating high-status models are now commonplace in the United States and abroad, as politicians, university presidents, and business leaders aim to promote regional economic growth. Such efforts at emulation are challenging, as research has shown that the factors that explain why some disciplines and particular universities have been more conducive to faculty entrepreneurship are highly contingent and tied to local organizational practices (Siegel et al. 2003, Bercovitz & Feldman 2007). Research emphasizes the importance of a wider university culture and supportive administration, a technology transfer office oriented to building relationships rather than bargaining and legal negotiations, and the presence of a


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research-oriented medical center (Etzkowitz & Stevens 1998, Owen-Smith & Powell 2003, DiGregorio & Shane 2003). The academic entrepreneurship literature tends to view individual attributes and university incentives as inputs to the process (Lach & Schankerman 2004) and often does not consider the extent to which faculty engagement is the outcome of a larger transformation on university campuses. Careful archival research reveals that basic concepts such as invention and inventor were initially highly contested and unfamiliar and took years to become settled and taken for granted, even on the most entrepreneurial of campuses (Colyvas & Powell 2006, Colyvas 2007). Contemporary ethnographic research, likewise, documents the important role technology licensing officers play in disseminating such concepts and in managing the tensions and conflicts that stem from new actors, relationships, and meanings inherent in academic entrepreneurship (Owen-Smith 2005). More broadly, scant research has addressed how universities are actually sustaining technical advance. Instead, research focuses on indicators—number of patents, number of spin-off companies, revenues generated, etc.—and equates these as proxies for success, despite the numerous limitations associated with these metrics. In an analysis of the evolution of the Boston biotechnology cluster, Owen-Smith & Powell (2004) showed that this productive region was anchored by public research organizations, including universities and research hospitals, and that commercial entities built on key relationships with open science institutions. In this exemplary case, universities and hospitals played an essential role in the creation and expansion of biotechnology precisely because they acted like the traditional university, an open institution where knowledge readily spilled over into the surrounding community. The new era of university-industry relations raises numerous questions about stratification, access, and scientific careers. We raise these important issues only briefly, suggesting pertinent areas where research is most


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needed. Little work has considered the ramifications of industry-based scientists becoming simultaneously more active in basic applied research collaborations and publications, both at the corporation and on campus. When commercially based scientists contribute to the corpus of open science, do their contributions have the same impact as university publications? An earlier survey rating research institutions by citation impact in the physical sciences between 1981–1991 reveals that private corporations ranked second, third, and seventh in the top ten (Brown 1995). Research has yet to address how transferable and durable these efforts are or whether publishing is more likely in the early stages of a start-up company’s development. In areas where research is easily transferred from basic to applied, does the merger of public and private science transform the criteria by which scientific careers are judged and managed? How will a reconceptualization of professional identity influence scientific career paths, and how will universities reconstruct their teaching and research faculties and priorities? Many universities are already placing bigger and bigger bets in areas with the greatest potential for commercial—as well as reputational—payoffs (Brint 2005). The changes underway in contemporary science have very divergent outcomes across disciplines, organizations, and geographies (Owen-Smith et al. 2002). For example, poor communities—both within and between countries—may be challenged by the privatization and commercialization of science, as knowledge may become restricted and/or unaffordable and the tools and technologies necessary to use and exploit such knowledge may become less freely available. Although some attention is directed toward the role of industry investments and entrepreneurial ventures in highly patentable areas of research (e.g., the life sciences, material sciences, and engineering), less is understood about these trends in areas with low commercial potential but high social value (e.g., infectious diseases, malaria, clean water, renewable energy).


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Traditionally, university settings explored arenas that industry did not pursue. But in the absence of market incentives, it is not obvious where knowledge generation for the public interest and social good may emerge in areas such as vaccines or low-cost technologies. In some circumstances, new models of public and proprietary science have fostered the development of first-to-the-world medicines and affordable communications technologies, but in other realms, such as renewable energy, widely available breakthroughs have not been forthcoming. A key challenge in understanding the nexus of industry-government-university funding is the historical contingency of different models of research funding. Early in the twentieth century, many institutions rejected federal funds on the basis that they were tainted, and in the 1960s and 1970s defense-related research was highly controversial. Today, the formerly disinterested nature of federal support for research seems to be becoming a historical relic. Increasingly, the government itself is behaving like industry, desiring more influence and control over research topics and outcomes. The embrace of philanthropic donations, gifts, and partnerships from enviable high-tech companies, while currently in vogue, may also prove fleeting.

DIRECTIONS FOR FUTURE RESEARCH Current research has mapped the shifting boundaries of science and property and begun to track the ramifications of these movements. To date, most studies have separated rather than synthesized potential streams of analysis. Thus, with some significant exceptions, our understanding of the effects of IP on science and our ability to assess these effects as a transformation versus a transition are built on discrete and disconnected bodies of research. The current literature ranges widely, from accounts of the commercialization of university research, to the economic studies of patents, incentives, and innovation,

to the growing—and predominantly legal— literature on the value of cultural and scientific commons, to sociological research on fiscal and informational resource flows within scientific cultures. But this expanding body of work is presently fragmented and poorly integrated. As a result, numerous studies are concerned with the effects of IP on universitybased science but do not consider the possibility of reciprocal effects on industry-driven research. Some high-profile meetings on different models of openness and their relationship to existing features of IP law and institutionalized scientific practice have taken place. To date, however, legal, sociological, and economic research on these efforts has largely proceeded in parallel rather than in tandem. Moreover, little is known about how changes in scientific rules, roles, and relations will ultimately trickle down to problem choice, data/information sharing, knowledge values, and professional identity across different social, intellectual, and epistemic contexts in the future. Thus, a full understanding of the causes and consequences of the new publicprivate system will require analysts to look both vertically and horizontally across scientific fields. A next step, then, is to tackle the harder questions about where and/or when the IP rights line should be drawn, particularly in instances in which public and private interests collude and where they collide. Research is needed to assess which of the different IP tools can best solve incentive and appropriability problems under different conditions, especially when emerging alternatives exist. The need to clarify the objectives, operations, and effects of the IP rights system is due in part to the arrival of new types of science and technologies, and the changing ways in which IP rights govern and are governed within multisectoral and interjurisdictional systems as both products and processes of science. Consequently, comparisons of different models of open and proprietary scientific practice are only partial, rendering it www.annualreviews.org • The Frontiers of Intellectual Property

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difficult to assess fully where the risks and opportunities lie for knowledge production and dissemination under different conditions. Where will the shifts of contemporary science take us, with what costs and benefits, and for whom? What are the long-term distributional

consequences of private investment models of scientific innovation versus those of the public domain model or newer versions of open source collaboration? These are fundamental questions that require interdisciplinary analysis.

ACKNOWLEDGMENT


We are grateful to James Boyle, Karim Lakhani, Rick Lempert, Larry Lessig, Robert Merges, Andrew Nelson, Richard Nelson, Jason Owen-Smith, Megan Tompkins, and John Walsh for comments on an earlier draft.

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Srinivasan TN. 1998. Developing Countries and the Multilateral Trading System: GATT, 1947 to Uruguay Round and Beyond. Boulder, CO: Westview Stark D. 2001. Ambiguous assets for uncertain environments: heterarchy in postsocialist firms. In The Twentieth Century Firm: Changing Economic Organization in International Perspective, ed. P DiMaggio, pp. 69–104. Princeton, NJ: Princeton Univ. Press State Street Bank v. Signature Financial Group, 149 F.3d 1368 (1998) Stephan P. 1996. The economics of science. J. Econ. Lit. 34:1199–235 Stokes D. 1997. Pasteur’s Quadrant: Basic Science and Technological Innovation. Washington, DC: Brookings Inst. Press Stuart T, Ding W. 2006. When do scientists become entrepreneurs? The social structural antecedents of commercial activity in the academic life sciences. Am. J. Sociol. 112:97–144 Teece DJ. 1986. Profiting from technological innovation. Res. Policy 15:285–306 Thursby JG, Thursby MC. 2002. Who is selling the ivory tower? Sources of growth in university licensing. Manag. Sci. 48:90–104 Trune D, Goslin L. 1998. University technology transfer programmes: a profit/loss analysis. Technol. Forecast. Soc. Change 57(3):197–204 Tuomi I. 2004. Knowledge sharing and the idea of public domain. In UNESCO 21st Century Dialogues: “Building World Knowledge Societies,” pp. 119–35. Seoul: UNESCO UNDP. 2003. Making Global Trade Work for People. New York: U.N. Dev. Prog. http:// www.undp.org/dpa/publications/globaltrade.pdf USPTO. 1987. Notice: animals—patentability. 1077 Off. Gaz. U.S. Pat. Trademark Off. 8 (April 21) Vallas SP, Kleinman DL. 2007. Contradiction, convergence and the knowledge economy: the confluence of academic and commercial biotechnology. Socio-Econ. Rev. In press von Hippel E. 1988. The Sources of Innovation. New York: Oxford Univ. Press von Hippel E. 2005. Democratizing Innovation. Cambridge, MA: MIT Press von Hippel E, von Krogh G. 2003. Open source software and the “private-collective” innovation model: Issues for organization science. Organ. Sci. 14:209–23 Walsh J, Cho C, Cohen WM. 2007. Where excludability matters: material v. intellectual property in academic biomedical research. Res. Policy. In press Walterscheid EC. 1998. To Promote the Progress of Useful Arts: American Patent Law and Administration, 1787–1836. Littleton, CO: Rothman Washburn J. 2005. University Inc.: The Corporate Corruption of Higher Education. New York: Basic Books Weber S. 2004. The Success of Open Source. Cambridge, MA: Harvard Univ. Press Whittington KB, Smith-Doerr L. 2005. Women and commercial science: women’s patenting in the life sciences. J. Technol. Transf. 30:355–70 Willinsky J. 2005. The unacknowledged convergence of open source, open access, and open science. First Monday 10(8). http://www.firstmonday.org/issues/issue10 8/ willinsky/index.html Willinsky J. 2006. The Access Principle: The Case for Open Access to Research and Scholarship. Cambridge, MA: MIT Press Wright BD. 1983. The economics of invention incentives: patents, prizes and research contracts. Am. Econ. Rev. 73:691–707 Zacks R. 2000. The Technology Review university research scorecard 2000. Technol. Rev. 103:88–90 Ziman J. 2000. Real Science. Cambridge, UK: Cambridge Univ. Press Zucker LG, Darby MR, Brewer MB. 1998. Intellectual human capital and the birth of U.S. biotechnology enterprises. Am. Econ. Rev. 88:290–306 www.annualreviews.org • The Frontiers of Intellectual Property

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Personal Information, Borders, and the New Surveillance Studies Gary T. Marx1 and Glenn W. Muschert2 1

Massachusetts Institute of Technology, Cambridge, Massachusetts 02139; Scottsdale and Bainbridge Island Bike and Kayak Club, Bainbridge Island, Washington 98110; email: [email protected]

2

Department of Sociology and Gerontology, Miami University, Oxford, Ohio 45056; email: [email protected]


Key Words


surveillance, social norms, privacy, communication technology, sociology of information


Abstract This article reviews and critiques recent scholarship on surveillance and communication technology that involves the crossing of personal information borders. A Sociology of Information framework focusing on the normative elements is proposed as a way to integrate this variegated field. Empirical analysis is particularly needed to test the claims of surveillance scholars, and we suggest some hypotheses. The article concludes with a consideration of conflicting values and empirical trends that make this such a challenging field and suggests some “moral mandates” to guide research in the crossing of personal informational borders, whether this involves individual privacy and accountability or broader social concerns.

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STRANDS OF RESEARCH

rity issues, even as these security concerns accelerated developments within the other areas. For better and worse, social inquiry is partly driven by contemporary social issues and newsworthy events. The presence or absence of barriers to information and the technologies that facilitate or block access are central to modern life and, thus, should be core elements in the study of contemporary society. We can track scholarship on the new technologies by searching “surveillance” and “privacy” as key words in journals. Table 1 illustrates key word searches of three academic databases for sociology, law, and communications journals and reveals a sharp increase in such research, especially in the past two decades. The increase in research coincides with the increased use of electronic communications technologies and computers since the 1970s. There is a vibrant and growing international network of scholars interested in surveillance questions (Monahan 2006). Frequent conferences, new research groups (such as the Surveillance Project at Queens University in Canada and various groups supported by the European Community such as the Urban Eye Project), and new journals such as Surveillance and Society; Ethics and Information Technology; The Information Society; Information, Communication and Society; The Journal of


The intersection of new technologies, borders, and personal information offers law and society scholars a way to approach information technology questions. New surveillance and communication technologies such as the Internet, data mining, video camera, biometric analysis, radio frequency identification (RFID) chips, and the ubiquitous, manyfaceted cell phone raise issues at the very core of our understanding of society and the search for the good society. The topic involves fundamental social processes of rulemaking and breaking, differentiation and integration, and conflict and cooperation. Much of human history can be read as a struggle involving borders, both spatial and metaphorical, and the access to and symbolism of borders. In the United States, where surveillance technology is controversial, contention arises from the crossing of or failure to cross a personal border. Since the 1980s, there has been a boom in social science and legal scholarship related to surveillance, privacy, and technology. The surge in surveillance writing is particularly noticeable since 9/11 (e.g., Ball & Webster 2003, Heymann 2003, Lyon 2003a, Parenti 2003, Cate 2004, Rosen 2004, Wood & DuPont 2006), but the breadth and depth of this interest preceded, and goes far beyond, secu-

Table 1

Academic use of “surveillance” and “privacy” as article key words, 1950–present Sociological Abstractsa

Time Period

Communication and Mass Media Completec

Legal Collectionb

Surveillance

Privacy

Surveillance

Privacy

Surveillance

Privacy

2000s

519

341

61

324

124

272

1990s

563

612

21

155

40

196

1980s

151

452

3

58

14

110

1970s

79

334

5

33

9

39

1960s

6

74

2

12

4

18

1950s

n/a

n/a

n/a

n/a

1

6

a

Search of Sociological Abstracts was limited to refereed journals published 1963–2005. Search of Legal Collection was limited to refereed journals and covers the period 1965–2005. c Search of Communication and Mass Media Complete was limited to refereed journals 1950–2005. b

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Information, Communication and Ethics in Society; Communications, Law, and Policy; New Media and Society; I/S: A Journal of Law and Policy for the Information Age; and International Political Sociology), and special issues of traditional journals (e.g., Block 1992; Jermier 1998; Mack 2001; Marx 2002; Thiessen 2002; Margulis 2003; van Harten & van Est 2003; Hillyard 2004, 2007; Maxwell 2005b; Jenness et al. 2007; Judge 2006) further illustrate this trend. In 2005–2006 alone, five significant edited sociological books were published with scores of contributors (Zureik & Salter 2005, Lace 2005, Haggerty & Ericson 2006, Lyon 2006, Monahan 2006), one so far in 2007 (Hier & Greenberg 2007), and many more monographs and edited volumes are on the way. Major public policy commission reports appeared in Britain and the United States (Wood 2006, National Research Council 2007) along with a comprehensive overview (Lyon 2007), an encyclopedia of privacy (Staples 2007), and a textbook (Goold 2007). Universities increasingly offer courses in surveillance studies. There are numerous strands of research in geographically and academically diverse areas, yet a boom in research does not necessarily mean an equivalent boon for broad understanding. Indeed, it can instead be overwhelming and involve endless rediscovery. There is a lack of integration among literatures, and studies do not sufficiently build upon each other. Work tends to be either unduly theoretical or empirical. There are relatively few middle-range approaches involving systematic empirical inquiry guided by an effort to assess ideas. Somewhere between the retreat to a divisive, noncommunicative disciplinarity and a bland, homogenizing universality there is salvation.

CLASSIFYING THE FIELD There is no commonly held view of how to classify this research. One broad approach is to consider the researcher’s discipline. Represented fields include law, sociology,

criminology, communications, cultural studies, science and technology studies, information systems, geography, planning, political science/international relations, military studies, psychology, anthropology, history, economics, organization and management studies, and business and philosophy. Perhaps the largest single category of surveillance research involves public health, in which surveillance is viewed as necessary and positive for tracking and combating disease. Although much of this is biologically focused, social and legal elements are also involved in the spread of disease and in control efforts mandating testing and quarantine. Foucault in a number of places wrote about control efforts with respect to the plague and other forms of illness (see Elden 2003). For law, the emphasis is on constitutional, legislative, and regulatory questions. A sampling of the voluminous literature with social science implications includes Froomkin (2000), Sharpe (2000), Slobogin (2002), Turkington & Allen (2002), Solove et al. (2006), Bharucha et al. (2006), Harcourt (2007), Mair (2006). With respect to the privacy component, this work stands on foundations suggested by Warren & Brandeis (1890), Dash et al. (1959), Prosser (1960), Westin (1967), Fried (1968), Miller (1971), Bloustein (1979), and Gavison (1980). Illustrative books in a sociological tradition but with a view to historical developments and change include Rule (1974), Cohen (1985), Beniger (1986), Dandeker (1990), Giddens (1990), Bauman (1992), Nock (1993), Lyon (1994), Bogard (1996), Ericson & Haggerty (1997), Brin (1998), Glassner (1999), Staples (2000), and Garland (2001). Classic studies such as Ellul (1964) and Mumford (1934) help ground the role of technology in society and society in technology. Central topics for economics are the implications of information asymmetry for markets, new kinds of intellectual property, and regulation (Stigler 1980, Noam 1997, Hermalin & Katz 2004). For geography, new virtual space issues are prominent, as www.annualreviews.org • Borders and Personal Information

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are new means of tracking and displaying data (Holmes 2001, Graham & Marvin 1996, Curry 1997, Monmonier 2004). In communications studies, researchers often focus on the increasingly mass-mediated nature of social interactions and on the meanings of this cultural shift (e.g., Loader & Dutton 2005), the asymmetrical nature of much supposedly interactive communications technology (Andrejevic 2007), the cultural construction and marketing of fear and risk, with surveillance offered as the solution (Altheide 2006). Increased use of mediarelated techniques in policing practices, such as phone taps and data mining, has also been a focus in communications research (e.g., Fitsinakis 2003, Wise 2004). Studies can also be classified according to their level of attention to the presumed utopic promises or dystopic dangers of the technology and according to whether, when a problem is identified, it involves using or failing to use the technology. In the background is literary work by Anthony Burgess, Aldous Huxley, Thomas More, George Orwell, and Yevgeny Zamyatin. Engineers, computer scientists, and business scholars are more likely to reflect optimism (e.g., Rushkoff 1999, Negroponte 1995, De Kerckhove 1997, Mitchell 2003), whereas social scientists and artists, pessimism. Inquiries can also be organized according to their substantive topics. A frequently studied topic is individual privacy (Bok 1978, 1982; Schoenman 1984; DeCew 1997; Barendt 2001; Nissenbaum 1999; Nissenbaum & Price 2004). But as the social fallout from unrestrained computerization has become clearer, studies considering implications for social stratification, consumption, discrimination, democracy, citizenship, identity, representation, and society more broadly have appeared (Gandy 1993, Agre & Rotenberg 1997, Gilliom 2001, Lyon 2003b, Regan 1995, Alpert 2003, Monahan 2006, Phillips 2006). Research can be categorized based on particular techniques, such as biometrics (Nelkin & Tancredi 1994), RFID chips (Garfinkle


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2000), or cultural expression in art, film, drama, music, and landscape architecture (Marx 1996, Groombridge 2002, Pecora 2002, McGrath 2003, Gold & Revill 2003). The field can also be organized around institutional areas beyond public health, such as work (Sewell & Wilkinson 1992, Jermier 1998, Maxwell 2005a, Weckert 2005), consumption (Gandy 1993, Lace 2005), criminal justice (Brodeur & Leman-Langlois 2006, Elden 2003, Goold 2004), libraries (Minow & Lipinski 2003), military (Donahue 2006, Haggerty & Gazso 2005), education (Webb et al. 2004), health (Nelkin & Tancredi 1994, Ghosh 2005), spatial design (Curry 1997, Flusty 2001, Monmonier 2004), and domestic and international security (Della Porta & Reiter 1998, Cunningham 2004, Varon 2004, Davenport et al. 2005, Boykoff 2006, Bigo 2006, Cate 2004, Lyon 2003a, Monahan 2006). There is also work on particular subgroups, such as children (Penna 2005, Mirabal 2006), the elderly (Kinney et al. 2003, Kinney & Kart 2006), and the ill (Timmermans & Gabe 2002, Stephens 2005). And what is the primary goal of the scholar? Is it to advance basic knowledge (and then to document, explain, or both), evaluate impacts, or analyze legal and regulatory issues for public policy purposes? Such research contrasts with the generally descriptive, nonanalytic work of most journalists (e.g., Davis 1990, Sykes 1999, O’Harrow 2005, Garfinkle 2000, Parenti 2003). Within the basic research category, we can often separate conceptual and theoretical efforts from those that involve systematic (or unsystematic) empirical research. Much of the empirical research is of the case study variety, relying on observation, interviews, and the analysis of documents (McCahill 2002; Tunnell 2004; Gilliom 1994, 2001). There is also a small quantitative evaluation literature on closed circuit television (CCTV) use (particularly in the UK—e.g., Norris et al. 1998, Newburn & Hayman 2002, Goold 2004, ¨ Hempel & Topfer 2004, Welsh & Farrington 2004). However, relative to the ubiquity of,


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and vast expenditures on, CCTV, there has been very little evaluation, particularly in the United States. The same holds for the paucity of independent studies of the impact of drug testing. Ball & Haggerty (2005) edited a volume considering some methodological issues unique to surveillance research, which so often relies on data from the shadows. The methodological issues vary depending on the kind of society studied. For example, contrast the conditions for Samatras’s (2004) research in Greece, with its legacy of authoritarian surveillance, with conditions for research in the United States or Britain. Observing the watchers and the watched can be an inherently political act, and skepticism may be required of the data’s meaning and treatment (e.g., is it really destroyed when policies call for this?). With respect to more theoretical, or at least conceptual, efforts, the field has offered an abundance of similar concepts that seek to label the essence and/or account for the arrival of the new surveillance. Much of this work is in essay form and broadly in the tradition of Bentham and Foucault, as well as Taylor, Weber, Durkheim, Nietzsche, Marx, Hobbes, and Machiavelli.

SURVEYING THE NEEDS OF THE FIELD Most surveillance essays illustrate their claims by reference to historical examples, newsworthy events, and secondary empirical data. In an effort to be inclusive, they generally sweep across technologies and contexts in offering macrotheoretical accounts. There is generally a failure to deal with variation or to indicate just what is being explained beyond an implicit contrast between the earlier and new forms. In most cases, we are offered little guidance as to how the ideas might be assessed or contrasted with alternative approaches. More operationalized approaches are needed that permit finer-grained contrasts and that seek to explain diverse organizational and institutional settings, goals, technolo-

gies, and varied national and cross-cultural responses. As well, we need to go beyond static structural approaches to studies of process, interaction, implementation, and diffusion and (sometimes) contraction in the careers of surveillance activities. We even lack an adequate English term conveying the full meanings of surveillance. The Latin roots are sur = super, vidre = to look, and vigilare = to keep watch. Superwatching conveys an important strand, but it is awkward. For those uncomfortable with to surveil, the best we have is the English term to survey, which can involve either a general overview or a critical inspection. One can also play with prepositions—viewing and contrasting surveillance as looking over, under, above, below, beyond, back, out, and for, as these apply to both agents and subjects and to position, time, and goals. In an interesting reversal, Mann et al. (2003) labels his use of video cameras to record the behavior of the more powerful “soussurveillance.” He adopts this term not only because this sous-surveillance is conducted from the point of view of one who is under surveillance, but also because probing underneath may reveal taken-for-granted social worlds. Without offering a broad definition, a number of terms have been suggested to capture modern and contemporary aspects of surveillance, such as the gaze and bio-power (Foucault 1977, 1980); surveillance society or the new surveillance and maximum security society (Marx 1985, 2004); dossier society (Laudon 1986); dataveillance (Clarke 1988); superpanopticon (Poster 1990); l’anamorphose de l’état-nation (Palidda 1992); panoptic sort (Gandy 1993); minimum security society (Blomberg et al. 1993); synopticon (Mathiesen 1997); securitization (Wæver 1995); telematic society (Bogard 1996); techno-policing (Nogala 1995); information empire (Hardt & Negri 2000); surveillant assemblage (Haggerty & Ericson 2000); postpanopticon (Boyne 2000); glass cage (Gabriel 2004); ban-opticon (Bigo 2006); www.annualreviews.org • Borders and Personal Information

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high policing (Brodeur & Leman-Langlois 2006); ubiquitous computing (Greenfield 2006); ambient intelligence (Wright et al. 2007); and safe society (Lyon 2007). The creation of these concepts and the writing of theoretical essays are necessary first steps. Yet too often they fail to disentangle the multiple dimensions that make up the ideal types or to explore their distributions, correlations, and interrelations. Consider, for example, Torpey’s (2007) differentiation of thin from thick surveillance. The former monitors movement and transactions (e.g., as with cell phones or credit cards) generally without constraining mobility, whereas the latter refers to confinement to delineated and frequently fortified spaces. Although thin surveillance is universal, the thicker forms disproportionately affect lower-status and marginal groups, such as the institutionalized. This increasingly involves the piling on and mutual reinforcement of surveillance forms, which can accelerate preexisting restrictions and involve increased collection/manipulation of data and secondary deviance (Lyon 2003b, Newburn & Hayman 2002, Patillo et al. 2004, Neyland 2006). This thin/thick distinction usefully captures some aspects of the interaction and social distribution of these two forms of surveillance. The initial data, such as negative credit ratings or criminal justice records, can become central to the life chances of the surveilled. The tightening of stigmatic social control tentacles is taken to new heights or lows, depending on one’s perspective. This is particularly the case in total institutions, with spillover into the broader society as a result of remote electronic monitors and functional enclosures. Technologies that cross the informational borders of the person (whether physical or temporal) can have major implications for social stratification. They may reenforce traditional patterns (for example, denying housing or employment to those with bad credit or prison records or the continuous electronic monitoring of those on parole). Yet in being easy to use and widely available, they have an


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egalitarian potential—note the videotaping of cases of police abuse or sexual harassment. (Marx 2005b, 2007a). Yet the distinction between thin and thick surveillance also collapses dimensions that should be separately studied, such as types of access (e.g., physical mobility involving combinations of entering and leaving versus opportunities for communication or service) and the scale or comprehensiveness of surveillance (e.g., the intensity and extensity as seen in the number of areas of life considered and the degree of probing and the integration of data). Related variables are suggested by Rule’s (1974) work, which contrasts the power of different surveillance systems with respect to file size, degree of centralization, and communication speed. Both explanatory and evaluative conclusions require identifying the dimensions by which the richness of the empirical world can be disaggregated. To be sure, we need broad ideal types, but we also need to identify specific dimensions in order to take systematic account of the variation whose causes, processes, and consequences need to be understood. Marx (2004), for example, suggests 27 dimensions for contrasting any surveillance means. Among the most salient of the dimensions of the new surveillance are its extension of the senses, low visibility, and lower costs. It tends to be involuntary, remote, strategic, integrated, and automated and to involve multiple forms and sources of data such as numbers, audio, video, and narratives. It provides real-time data flows with attention to systems, networks, and individuals; routinizes surveillance into everyday life; creates immediate links between data collection and action; and emphasizes predicting the future and preventing some forms of it. When not hidden altogether, the new information gathering also seeks to be soft and relatively noninvasive and to avoid direct coercion (Marx 2006). Another area requiring analytical differentiation is the examination of the stated or implied goals behind surveillance practices


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in different contexts. One approach considers variation in surveillance means and goals as they relate to different types of institutions. The interaction between surveillance means and goals and the extent to which they independently or reciprocally change have been little studied. There is of course rarely only one goal. Marx (2007b) outlines 12 major goals associated with surveillance practices, including compliance, documentation, management/coordination, discovery, publicity, symbolism, and curiosity. And the presumed rationality of goals must also be analyzed. Tunnell (2004), for example, argues that the emergence of urine drug tests had more to do with the behaviors of moral entrepreneurs than with any rational evidence that drug use was increasing in its prevalence and consequences. Nor is the continuance of the practice related to convincing evidence of its effectiveness or superiority to other means.

A SOCIOLOGY OF INFORMATION FRAMEWORK An emphasis on the rules about information in general and personal information in particular constitutes one part of a broader field of the sociology of information.

Defining the Framework Central questions broadly within such a normative approach include, What are the rules governing the protection and revelation of information? How are they created, what are their consequences, and how should they be judged? Who has access to personal information and under what conditions? How do factors such as the type of physical, temporal, and cultural border, the type of relationship among actors, the roles played, the type of information involved, the form of its presentation, the characteristics of the means used and the goals sought affect rules about information and the distribution of various surveillance forms?

What factors condition varying connections between the rules and actual behavior? How do normatively sanctioned and coercively supported data extractions (or data protections) differ from softer, seemingly voluntary (and often seductively elicited) revelations (or protections—e.g., industry favoring self-regulation)? How is information treated once it has been gathered (e.g., security, repurposing, alteration, retention, and destruction)? What types of sanctions with what consequences are attached to rules about information? What does surveillance focus on: individuals, groups, organizations, or environments? And, once focused, what does it look for (e.g., rule compliance, eligibility, wanted persons, purity, networks, location) and what actions, if any, flow from the activity? How are results assessed, where are the lines drawn, how valid are the instruments used, both in general and as applied in a given context? Borders are central factors for understanding surveillance. They of course may include or exclude as they facilitate or restrict the flow of information, persons, goods, resources, and opportunities (Zureik & Salter 2005, Andreas & Nadelmann 2006). The literal and symbolic roles of border surveillants as guardians, gate keepers, spotters, cullers, and sorters need to be better understood, as do subjects’ responses. The ability of the new technologies to pierce previously impenetrable physical borders and create new borders offers a rich field for studying the emergence of new prescriptive and proscriptive norms. The directionality of personal border crossings can also be considered. Most attention is on taking information from the person. But this needs to be contrasted with impositions upon the person—whether sound, images, smells, or unwanted messages (e.g., much telemarketing and spam). These impositions, of course, may be joined, as with Orwell’s telescreen or, in current terms, when the monitoring of Internet behavior leads to spam. Note also forms such as TiVo® that transmit data to the viewer and also www.annualreviews.org • Borders and Personal Information

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Elements of a sociology of information

1) Operationally defines and keeps distinct (yet notes relations among) a family of concepts encompassing personal information—e.g., privacy and publicity, public and private, personal and impersonal data, surveillance and surveillance neutralization, secrecy, confidentiality, anonymity, pseudoanonymity, identifiability, and confessions 2) Identifies the characteristics of the data-gathering technique—both those inherent and socially determined by policy and practices 3) Identifies the stated goals and latent consequences


4) Identifies norms, role relationships, and other social structural aspects including types of borders and directional flows and content of information and information accessibility (reciprocity and symmetry) 5) Identifies spatial and locational aspects 6) Identifies the type of personal information involved 7) Identifies the form of the data 8) Identifies cultural themes and symbols that provide meaning and direction in telling us why surveillance is needed, or is itself the problem, and how we should experience it as both watcher and watched 9) Identifies the social process aspects

receive data on the viewer and that blur the communication-surveillance distinction. Privacy and publicity form polar ends of a continuum involving rules about withholding and disclosing, and about seeking or not seeking, information. Depending on the context, social roles, and culture, individuals or groups may be required, find it optional, or be prohibited from engaging in these activities, whether as subjects or agents of surveillance and communication. Rules are at the heart of publicity and privacy. When the rules specify that information is not to be available to others (whether the restriction is on the surveillance agent not to discover or, less often, on the subject not to reveal or on the means) we can speak of privacy norms. When the rules specify that the information must be revealed by the subject or sought by the agent and that particular means are to be used, we can speak of publicity norms. A sociology of information approach emphasizing norms permits joining freedom of information and right to know issues with the right to control personal information, a logic reflected in some European and Canadian privacy commissions (Flaherty 1989, Bennett & 382

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Raab 2006). Table 2 outlines our proposed sociology of information approach. Let us additionally illustrate some social structural and process aspects. Regarding structures and roles, we can note the surveillance agent (watcher, observer, seeker, surveyor) is distinct from the person about whom information is sought, the surveillance subject. The activity may be agentinitiated or subject-initiated. Contexts of cooperation may exist in which goals overlap or are shared, as opposed to those in which agents and subjects are in conflict. Surveillance can be analyzed according to whether it is nonreciprocal or reciprocal. Surveillance that is reciprocal may be asymmetrical or symmetrical. Organizational surveillance is distinct from the nonorganizational surveillance done by individuals. The internal constituency surveillance found in organizations contrasts with external constituency surveillance present when those who are watched have some patterned contact with the organization (e.g., as customers) or are otherwise of interest to it, either as clients or competitors. With respect to personal surveillance, we can differentiate role relationship surveillance, as with family members, from nonrole


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relationship surveillance, as with the voyeur whose watching is unconnected to a legitimate role. The surveillance function may be central or peripheral and can involve those who are a party to the generation and collection of data (direct participants) or who are third parties. Rather than being static and fixed at one point in time, surveillance needs to be viewed as a fluid, ongoing, dynamic process involving interaction and strategic calculations over time. Among surveillance processes are efforts to create the myth of surveillance, surveillance creep, and surveillance commodification. Behavioral techniques of neutralization— strategic moves by which subjects of surveillance seek to subvert the collection—include direct refusal, discovery, avoidance, switching, distorting, counter-surveillance, cooperation, blocking, and masking (Marx 2003). Martin (2006) notes methods such as coverup, devaluation of subjects, and intimidation and bribery by which agents of political surveillance may seek to overcome opposition. Yet with these comes the risk of backfire. The responses and counter-responses to being watched involve what Simon (2005) calls the “chain of social and material intermediaries” in which surveillance power connects with subjects. An important and little-studied aspect involves a life history of surveillance events in which we analyze a variety of outcomes between the development of a tactic and the way it is implemented (if it is) and applied, as well as patterns of diffusion and contraction across institutions, goals, and societies. A more micro issue is the link between the allocation of surveillance resources, the collection of the information, and the subsequent action in individual cases. The dynamic nature of the topic calls for case studies of interaction, beyond the formal content of law and policies or correlations devoid of context. This is the location for studying surveillance and equity, with respect not only to the allocation of the tools, but also to outcomes. The political economy of the environment is central for such questions, and we must attend to power

and negotiation. Phillips (2006) calls attention to the surveillance infrastructure within which actors use rhetoric, technology, and economic and legal resources to pursue their goals. He suggests a processual model involving identification, tracking, monitoring, analysis, and response. The production and use of knowledge hardly ushers forth from a virgin spring of technique. Rather different outcomes will depend on interaction among technical, social, and cultural factors. Law (1992), for example, calls attention to a dynamic socio-technical network involving actors, agents, artifacts, institutions, and beliefs within which technologies are understood and applied through interaction.

Applying the Framework Once concepts are defined and variables identified, the next step is to generate hypotheses and specify conditions under which they apply. As noted, the field has lagged here. Table 3 offers a sampling of tested (or testable) hypotheses for democratic societies. Broader hypotheses from other areas such as political economy regarding workers’ rights and management practices or the sociology of law and social control can no doubt also be adopted to fit the specific case of surveillance (which, of course, can itself be broken down into various components). In the case of social control, for example, the greater the scale and heterogeneity of a social setting the more we might expect not only formal law (Black 1976) but accompanying surveillance to discover compliance, locate infractions, and monitor penalties and subsequent behavior.

EMERGENT VALUE CONFLICTS Too much of the work in this field reflects a misguided either/or fallacy. Such didactic thinking is elicited by the search for simplicity, disciplinary socialization and specialization, and fashion. It receives a boost from the binary logic of computerization that is central www.annualreviews.org • Borders and Personal Information

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Illustrative hypotheses

In contexts in which monitors have local knowledge, individual rather than categorical targeting is more likely than in contexts in which such knowledge is lacking (McCahill 2002). Individuals are most likely to feel the collection of personal information is wrong when it occurs involuntarily and without consent and when it crosses a border—whether personal, social, temporal, or spatial—that is presumed to be protective of information (Marx 1999). In employment contexts, perceptions of inappropriate personal border crossings will be related to tactics that probe mind and body, communicate distrust, and question validity (Stone-Romero et al. 2003).


As surveillance practices become widespread, information displaces evidence in adjudication processes (Sharpe 2000). The more generous a system of exchange (information in return for something the individual wants), the more likely it is to be tolerated (Gilliom 2001). Surveillance practices that bring new goals are more likely to be questioned than those merely involving new means to meet established goals (Newburn & Hayman 2002). The greater the restrictions on overt means of interrogation and search, the greater the use of soft and covert means (Marx 1988). As the competitiveness of an environment and/or the perception of risk increase, mandatory flows of information from subordinates to superordinants increase, and flows of data in the other direction decrease. The development of means for non–labor intensive surveillance is likely to lead to an increase (not a decrease) in employment in the surveillance sector of the economy. New means of identifying unique individuals (e.g., by DNA, face, or walk) will lead to the creation of new databases covering entire populations such that the distinctive individual can be found by name and likely location. In the United States relative to Europe with respect to regulation, greater emphasis is placed on the specific characteristics of a technology and the risks and rewards the subject is willing to assume. In Europe greater emphasis is given to broad principles regarding the dignity of the person, apart from the characteristics of the technique and the will of the subject. In the United States, there is greater concern over government than private sector surveillance and there is greater opposition to providing personal information to government than to the private sector, whereas in Europe this is reversed. In the United States relative to Europe, there is a greater expectation of data flows from government to citizens, and this is reversed in Europe. Nations with adversarial systems and strong judicial review will be more tolerant of invasive surveillance than nations without these.

to so much surveillance but that can distort the richness of social understanding. F. Scott Fitzgerald suggests that “the test of a first rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.” In an unacknowledged borrowing, George Orwell called the malignant version of that intelligence “doublethink.” But when complex and complicated topics are involved, it is well, as Whitehead admonished, not to look for clar384

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ity and consistency at the cost of “overlooking the subtleties of truth.” We need to transcend rigid dichotomies in social analysis, allowing us to identify the ambiguities in meaning and the paradoxical conditions that permit social forces to move in opposite directions. Thus, we can see when (or better, how) opposed ideas can be appropriately held, even as experience, ambivalence, illogic, or lack of empirical support may lead to the rejection of a moral or empirical claim.


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Understanding requires the capacity to see both (and more) sides of an issue and to note dialectical processes. Unlike beauty, truth isn’t quite in the eye of the beholder, but it is powerfully conditioned by where, when, and what one looks with and for. Thus, in surveillance studies, we must go beyond receptivity to competing or contradictory methods and rather attend to opposing tendencies in the world. Sometimes the best answer is both, or yes and no. The key then is to specify the conditions likely associated with different outcomes. Below, we consider this with respect to conflicts in both values and empirical patterns. Enduring value conflicts and ironic, conflicting needs, goals, and consequences make taking broad and consistent positions regarding surveillance, borders, and personal information difficult. We value both the individual and the community. We want both liberty and order. Consider the folk claim that “those who have nothing to hide have nothing to fear” in light of the rival claim in the Bill of Rights that there must be reasons before personal borders are crossed in a search. The broad universalistic treatment citizens expect may conflict with the specific treatment made possible by fine-honed personal surveillance data (although perhaps the more data that is gathered the more room there is for errors). The expectation that one should be judged as an individual and in context may conflict with the greater rationality and predictive success believed to be found in responding to aggregates. Individuals expect to be treated accurately and yet to have privacy respected. Depending on their role and social location, individuals and groups will differ in the relative importance given to privacy versus accuracy. We seek privacy and often anonymity, but we also know that secrecy can hide dastardly deeds and that visibility can bring accountability. But too much visibility may inhibit experimentation, creativity, and risk taking. And although we value disclosure, we also believe in redemption and new beginnings after indi-

viduals have been sanctioned for misdeeds or overcome limitations. In our media-saturated, impressionmanagement societies, we also want to be seen and to see (even as we also sometimes want to be left alone). Consider the desire to reveal as seen in popular talk shows and celebrity tell-all books and public relations activities. We value freedom of expression and a free press but do not wish to see individuals defamed, harassed, or unduly self-humiliated. We desire honesty in communication and also civility and diplomacy. We value the right to know, but also the right to control personal information [note the high degree of expressed concern over privacy invasions (if not always behavior consistent with this) revealed by public opinion polls]. We desire systems that are user-friendly, fast, easy to use, and inexpensive. The value of a network is maximized when it is widely available. Yet these goals can conflict with the needs for security and privacy. Many discussions between those who look optimistically at information technology as the solution and those who view it as the problem reflect the tale from India about blind persons and the elephant, in which each observer offers a plausible identification for one part of the elephant (e.g., the tail as rope). A legitimate goal or social trend is identified, but other confounding ones are ignored or denied. An important contradictory empirical pattern is technology that can simultaneously be value neutral and reflect partisan interests. On the one hand, there is a democratizing element to surveillance in that it can capture whatever is available to be captured (e.g., video cameras are indifferent to gender and race). On the other hand, the location and use of any camera is socially and personally, rather than randomly, patterned. Information invasive technologies are (and can be) neutral, yet their actual use must be considered apart from their potential use. Part of the neutrality or equality-of-technology argument is equivalent to Anatole France’s observation that the www.annualreviews.org • Borders and Personal Information

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rich and the poor are both forbidden to sleep under bridges or steal a loaf of bread. Certainly, the camera, audio recorder, or motion detector will capture whatever is encountered, but this egalitarian potential of the new technology does not mean that all persons and settings have an equivalent chance of being surveilled. Nor are the resources (whether cultural or physical) to defend, resist, and challenge equally distributed in stratified settings and societies. The notion of accountability and deterrence through visibility is a major justification for crossing personal information borders (Etzioni 1999, Allen 2003). In the New Testament we read, “Everyone who does evil hates the light, and will not come into the light for fear that his deeds will be exposed. But whoever lives by the truth comes into the light, so that it may be seen plainly that what he has done has been done through God” ( John 3:20–21). Here, surveillance both rewards and prevents (or at least leads to hiding). Yet for others differently motivated, surveillance may fail not only in the sense of not deterring, but in actually helping the violator. If surveillance is to deter, potential violators must be told of the threat. Beyond this functional aspect, fair information practices require notice. This can be exploited. Those highly motivated to infraction may adjust their behavior accordingly. In the case of video surveillance, for example, this can involve displacement to areas without cameras. Others may seek notoriety and sanctioning (whether exhibitionists, attention seekers, or would-be martyrs). In that sense, visibility may have an opposite effect. The heterogeneity in motives among subjects of surveillance requires study.


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CONFLICTING EMPIRICAL TRENDS AND PROCESSES Although much contemporary surveillance is partly defined by its ability to root out the unseen and unknown, it also paradoxically may reveal itself through electrical, chemical, and other forms of data. That which silently gath386

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ers the emanations of others, if not exactly a mirror image, nonetheless emanates itself, offering discovery possibilities and means of neutralization to technically competent adversaries. The watchers may also be watched by the same means they apply to others. Operational conflicts can be seen in such diverse goals as apprehension and deterrence. The need for concealment supports apprehension (caught in the act), whereas visibility may support temporary prevention but lead to displacement [see Norris & Armstrong (1999) or Sewell & Barker (2006) on the protective and caring aspects of organizational surveillance]. Tension manifests between trying to regulate risky tactics and ignoring them in the hope that the absence of legitimation will curtail their use. A legalistic or bureaucratic codification may restrict them, but it also serves to sanctify them, if under limited and reviewable circumstances. The absence of a formal mandate may inhibit the use of a tactic. A technology’s characteristics and social and cultural factors need to be appreciated as independent, as well as interdependent, causes. The ability to collect personal data offered by miniaturized, sense-extending devices capable of remote transmission creates a potential for surveillance apart from the awareness or consent of the subject. Yet the technology is found in a social setting in which prior social and cultural factors determined the technology’s development and condition the way it is used. Contrast the extensiveness of undercover police and drug testing in the United States with their minimal (if expanding) use in Europe, or the much greater use of video cameras in Britain than elsewhere (although again a difference that appears to be lessening) (Marx 1995). Or consider the Supreme Court’s ruling in Kyllo v. United States (2001) that found that a thermal search that so easily and passively took information radiated from the interior of a house was nonetheless a search falling within the Fourth Amendment for constitutional purposes.


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The either/or debate between strong versions of technological and social determinism is misplaced. Rather, we need to specify conditions under which these are independent or causally linked. Legal changes may spark technical innovations as well as the reverse. For example, constitutional and legislative limits on searches and interrogation stimulated federal funding for noninvasive ways of discovering personal information, just as technical developments in wiretapping and hidden recording led to laws limiting these, but also created markets for new counter-technologies. Given the vastness of the field and variety of relevant variables, more often than not it is a monumental challenge to order these in a temporal fashion and control for the multiplicity of causal influences. There is a significant expansion in the ways and categories for measuring and classifying individuals and contexts, both retrospectively and prospectively. We increasingly see the integration of life activities with the generation of personal data. More and more, we live in ways that automatically provide personal information as part of the activity— i.e., using credit cards or communication or transportation systems. Wright et al. (2007) presents some imaginative (yet science- and technology-based) dark scenarios regarding what might go wrong given this reliance on technology. There is a blurring of lines between public and private places, making personal information more available. Note the privatization of places traditionally seen as public such as shopping malls and industrial parks (with legal means of collecting personal information) and the blurring of the lines between home and work (Shearing & Stenning 1986; Nippert-Eng 1996; Marx 2001, 2005a). Note also the parallel restrictions and (for some) opportunities found with new forms of electronic-digital enclosures (Boyle 2003, Andrejevic 2007). Here, users transparently generate data regarding the transaction itself (e.g., who, where, when, path taken, and content), and this often goes to un-

known agents using it for we know not what. Simultaneously and not unrelated to the above, there have been major developments in technologies that enhance the borders that protect information. With encryption and audit trails, for example, there is the potential for a degree of confidentiality in communication and for enhanced accountability and data protection never before seen. Technologies and services for protecting personal information are increasingly available, from shredders, to home security systems, to various software and privacy protection services. We see new normative protections and awareness as well. A significant expansion of laws, policies, and manners limit and regulate the collection of personal information and its subsequent treatment. Bennett & Raab (2006) note this worldwide trend. Further, the frequently revised list of laws published by Privacy Journal (Smith 2002) has grown extensively over recent decades. Some growth has occurred in choice and opt-in systems and greater awareness that fair information practices can be good for business. This also ties to the broader twentieth-century expansions of civil liberties and civil rights, as well as to particular crises. Whether these go far enough and are effective as well as how they compare across institutions and cultures are important research questions. Another type of conflict can be seen in the rival empirical claims of proponents and opponents of particular technologies, uses, and rules about enabling, controlling, or prohibiting these technologies. For example, does drug testing deter drug use, push it to new drugs not detected by the test, or lead to neutralization means that permit deceiving the test? Do burgeoning interactive communications media extend democratic participation (e.g., of consumers relative to producers) or asymmetric manipulation? The value conflicts and opposing trends noted here work against sweeping generalizations (beyond this one against sweeping generalizations). Considered together, some www.annualreviews.org • Borders and Personal Information

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of the developments described here are ironic and contradictory; we take this as a sign of reality’s ability to overflow our either/or categories and of the need to avoid simplistic theorizing, as well as of the need for empirical research. These enduring tensions do not lend themselves to glib imperatives (unless it is the imperative of rejecting imperatives), and they are more challenging, if less provocative, than the gathering herds of one-trick ponies, as a result.


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CONCLUDING MORAL MANDATES Over the past decades, we have observed the rapid development of technologies of surveillance and communication. The changes these have sparked related to borders of personal information have been of great interest to scholars in a variety of fields. In an attempt to unify and direct the field, we have proposed suggestions for a sociology of information framework (Table 2) and illustrative testable hypotheses (Table 3). Given the frequent link within this topic between social control and normative direction, we conclude with an Annual Reviews tradition of moral mandates for scholars of surveillance (for an example of the tradition, see Marx & Wood 1975, pp. 415–17). The field would be stronger and future literature reviewers better able to engage in more reviewing, summarizing, and building and less question raising, concept defining, and critiquing than we have done here to the extent that these mandates are followed:

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Disaggregate and then aggregate! We need to break the world down into manageable analytic and empirically measurable bites, but it also must be put back together. There must be greater emphasis on integrating knowledge from the many strands of surveillance inquiry. Adopt a systems approach. Rather than restricting attention to either superordinates or subordinates (a factor often

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determined by the politics and support of the analyst), view both as part of a broader system. Study both the subjects and the agents of surveillance and their interaction. Be alert for unsullied literal independent variables, but also to feedback and reciprocal influences. Avoid simplistic determinism/reductionism. Recognize that things change but also stay the same. Start by locating the broad constants found in any surveillance information context and, within these, the major areas where variation and reoccurring forms and processes can be identified. Study surveillance practices as an interaction process. Research too must be continually in process, responding to changes in the game and moves of the players. The effort to understand atrophy, entropy, neutralization, escalation, evolution, devolution, contraction, displacement, and border changes must be central to inquiry. Naming names is not enough! Disentangle the multiple dimensions frequently found with ideal types and suggest ways of measuring these so their distribution and interrelations can be empirically documented and assessed. Validate empirical findings from surveillance technologies, particularly when life chances are involved, and do not assume that meaning is self-evident. Correlation does not necessarily represent causality or guilt. A correlation may be invalid because of weak measures or incompetent application of strong measures. Even when valid, inferences from a correlation or a match may be spurious. The facts do not speak for themselves. Never underestimate the significance of street-level applicators in defining what results mean (Paik 2006). Don’t assume that the reasons publicly offered for a given behavior are necessarily the real reasons. It is important to consider expressed motives in

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understanding behavior, and we show respect for those studied by listening to their accounts. Yet causes can be found at many levels beyond the rhetoric of actors, even when they are being truthful within the limits of their understanding. Don’t confuse probabilistic (aggregate) predictions/statistics about groups with predictions about any given individual or event. This can involve conflict between efficiency and order for the group as against fairness or liberty for the individual. Actions that are rational in the aggregate on a statistical basis may be unjust for the individual (what Robinson in 1950, anticipating profiling errors, called the ecological fallacy). The days of judgment are here now! Offer the reader logical and empirical criteria by which arguments and results can be evaluated. This necessitates clear definitions and, when appropriate, specification of independent and dependent variables. We need to develop more systematic empirical and logical ways of assessing normative issues of equality, ethics, and law as they involve personal informational borders.

Marx (2005a) suggests 20 questions to be asked when evaluating any surveillance technology. In a democratic society, soft, manipulative, and non- or quasi-consensual forms that transcend the unaided senses are of particular interest. Much research focuses on the conditions surrounding the data collection. Greater attention should be given to the actual use, particularly where this involves asymmetrical border sites with implications for social stratification and fairness. Neither a pessimist nor an optimist be, in the absence of good data! Don’t let fears and hopes confound your analysis of the empirical record. Keep distinct statements about the world as it now is from predictions or descriptions of what might happen. But don’t ignore the latter. Maintain truth in scholarship (and activism). What team are you on? What game are you playing? Try to separate statements of fact from those of value, even as we appreciate how interwoven these may be, given the importance of values and passion in social inquiry.


ACKNOWLEDGMENTS The authors wish to acknowledge the research assistance of Leah Janssen and Anne Johnston.

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Marx GT. 2006. Varieties of personal information as influences on attitudes toward surveillance. See Haggerty & Ericson 2006, pp. 79–110 Marx GT. 2007a. Privacy and equality. In Encyclopedia of Privacy, ed. W Staples, pp. 421–27. Westport, CT: Greenwood Marx GT. 2007b. Windows into the Soul: Surveillance and Society in the Age of High Technology. Chicago: Univ. Chicago Press. In press Marx GT, Wood J. 1975. Strands of theory and research in collective behavior. Annu. Rev. Sociol. 1:363–428 Mathiesen T. 1997. The viewer society. Theor. Criminol. 1:215–34 Maxwell R. 2005a. Surveillance: work, myth, and policy. Soc. Text 23(2):1–19 Maxwell R, ed. 2005b. Surveillance Issue. Soc. Text. Vol. 23(2). 153 pp. McCahill M. 2002. The Surveillance Web. Devon, UK: Willan McGrath J. 2003. Loving Big Brother. Oxford: Routledge Miller A. 1971. The Assault on Privacy. Ann Arbor, MI: Univ. Mich. Press Minow M, Lipinski T. 2003. Library’s Legal Answer Book. Chicago: Am. Libr. Assoc. Mirabal B. 2006. Homicides among children and young adults—Puerto Rico, 1999–2003. JAMA 296(5):510–11 Mitchell W. 2003. Me2+ : The Cyborg Self and the Networked City. Cambridge, MA: MIT Press Monahan T, ed. 2006. Surveillance and Security. New York: Routledge Monmonier M. 2004. Spying with Maps. Chicago: Univ. Chicago Press Mumford L. 1934. Technics and Civilization. New York: Harcourt & Brace National Research Council. 2007. Engaging Privacy and Information Technology in a Digital Age. Washington, DC: Natl. Acad. Press Negroponte N. 1995. Being Digital. New York: Knopf Nelkin D, Tancredi L. 1994. The Social Power of Biological Information. Chicago: Univ. Chicago Press Newburn T, Hayman S. 2002. Policing, Surveillance and Social Control. Portland: Willan Neyland D. 2006. Privacy, Surveillance, and Public Trust. New York: Palgrave Macmillan Nippert-Eng C. 1996. Home and Work: Negotiating Boundaries through Everyday Life. Chicago: Univ. Chicago Press Nissenbaum H. 1999. The meaning of anonymity in an information age. Inf. Soc. 15:141–44 Nissenbaum H, Price M, eds. 2004. Academy & the Internet. New York: Peter Lang Noam EM. 1997. Privacy and self-regulation: markets for electronic privacy. http://www.ntia.doc. gov/reports/privacy/selfreg1.htm#lB. Accessed Jan. 12, 2007 Nock S. 1993. The Costs of Privacy Surveillance: Surveillance and Reputation in America. New York: Aldine de Gruyter Nogala D. 1995. The future role of technology in policing. In Comparisons in Policing: An International Perspective, eds. JP Brodeur, pp. 191–210. Avebury, UK: Aldershot Norris C, Armstrong G. 1999. Maximum Surveillance Society. New York: Berg Norris C, Moran J, Armstrong G. 1998. Surveillance, Closed Circuit Television, and Social Control. Aldershot, UK: Ashgate O’Harrow R. 2005. No Place to Hide. New York: Free Press Paik L. 2006. Organizational interpretations of drug test results. Law Soc. Rev. 40(4):931–62 Palidda S. 1992. L’amamorphose de l’etat-nation. Cah. Int. Sociol. 43:269–98 Parenti C. 2003. The Soft Cage. New York: Basic Patillo M, Weiman D, Western B, ed. 2004. Imprisoning America: The Social Effects of Mass Incarceration. New York: Russell Sage Found. Pecora V. 2002. The culture of surveillance. Qual. Sociol. 25(3):345–58 www.annualreviews.org • Borders and Personal Information

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Penna S. 2005. The Children Act 2004: child protection and social surveillance. J. Soc. Welf. 27(2):143–57 Phillips D. 2006. Cyberstudies and the politics of visibility. In Critical Cyberculture Studies, ed. D Silver, A Massanari, pp. 216–27. New York: N. Y. Univ. Press Poster M. 1990. The Mode of Information. Chicago: Univ. Chicago Press Prosser W. 1960. Privacy. Calif. Law J. 48(2):383–423 Regan P. 1995. Legislating Privacy. Chapel Hill: Univ. N. C. Press Robinson WS. 1950. Ecological correlations and the behavior of individuals. Am. Sociol. Rev. 15(3):351–57 Rosen J. 2004. The Naked Crowd: Reclaiming Security and Freedom. New York: Random House Rule J. 1974. Private Lives and Public Surveillance. London: Allen Lane Rushkoff D. 1999. Playing the Future: What We Can Learn from Digital Kids. New York: Riverhead Samatras M. 2004. Surveillance in Greece: From Anticommunist to Consumer Surveillance. New York: Pella Schoenman F, ed. 1984. Philosophical Dimensions of Privacy. Cambridge, UK: Cambridge Univ. Press Sewell G, Barker J. 2006. Coercion vs care: using irony to make sense of organizational surveillance. Acad. Manag. Rev. 31(4):934–61 Sewell G, Wilkinson B. 1992. Someone to watch over me. Sociology 26:271–89 Sharpe S. 2000. Search and Surveillance. Aldershot, UK: Ashgate Shearing CD, Stenning PC, ed. 1986. Private Policing. Beverly Hills, CA: Sage Simon B. 2005. The return of the panopticon: supervision, subjection and the new surveillance. Surveill. Soc. 3(1):1–20 Slobogin C. 2002. Public privacy: camera surveillance of public places and the right to anonymity. Miss. Law J. 72:213–98 Smith RE. 2002. Compilation of State and Federal Privacy Laws. Providence, RI: Privacy Journal Solove D, Rotenberg M, Schwartz P. 2006. Privacy, Information, and Technology. New York: Aspen Staples W. 2000. Everyday Surveillance. Lanham, MD: Rowan & Littlefield Staples W, ed. 2007. Encyclopedia of Privacy. Westport, CT: Greenwood Stephens M. 2005. Surveillance through care and control: the case of the mentally ill in Madison and Britain. Internet J. Criminol. Accessed Feb. 6, 2007. http://www. internetjournalofcriminology.com/Stephens—SurveillanceThroughCareandControl. pdf Stigler G. 1980. Introduction to privacy in economics and politics. J. Leg. Stud. 9(4):623–44 Stone Romero E, Stone D, Hyatt D. 2003. Personnel selection procedures and invasions of privacy. J. Soc. Issues 59(2):343–68 Sykes C. 1999. The End of Privacy. New York: St. Martin’s Thiessen T, ed. 2002. Magazine Issue: Privacy. Denver Univ. Law Rev. Vol. 79(4) Timmermans S, Gabe J. 2002. Introduction: connecting criminology and sociology of health and illness. Soc. Health Illn. 24(5):501–16 Torpey J. 2007. Through thick and thin: surveillance after 9/11. Contemp. Sociol. 35(2): 116–19 Tunnell K. 2004. Pissing on Demand. New York: N. Y. Univ. Press Turkington R, Allen A. 2002. Privacy Law. St. Paul, MN: West Group. 2nd ed. van Harten D, vanEst R. 2003. Privacy in an information society. J. Conting. Crisis Manag. 11(1):1 Varon J. 2004. Bringing the War Home: The Weather Underground, the Red Army Faction, and Revolutionary Violence in the Sixties and Seventies. Berkeley: Univ. Calif. Press


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Wæver O. 1995. Securitization and desecuritization. In On Security, ed. R. Lipschultz, pp. 46–86. New York: Columbia Univ. Press Warren S, Brandeis L. 1890. The right to privacy. Harvard Law Rev. 4(5):193–220 Webb L, McCaughtray N, MacDonald D. 2004. Surveillance as a technique of power in physical education. Sport Educ. Soc. 9(2):207–22 Weckert J, ed. 2005. Electronic Monitoring in the Workplace: Controversies and Solutions. Hershey, PA: Idea Group Welsh BC, Farrington DP. 2004. Surveillance for crime prevention in public space: results and policy choices in Britain and America. Criminol. Public Policy 3(3):497–525 Westin A. 1967. Privacy and Freedom. New York: Columbia Univ. Press Wise JM. 2004. An immense and unexpected field of action. Cult. Stud. 18(2/3):424–42 Wood D, ed. 2006. A Report on the Surveillance Society. UK: Surveill. Stud. Netw. Wood J, DuPont B, ed. 2006. Democracy, Society and the Governance of Security. New York: Cambridge Univ. Press Wright D, Gutwirth S, Friedewald M, Vildjiounaite E, Punie Y. 2007. Safeguards in a World of Ambient Intelligence. Berlin: Springer Zureik E, Salter M, ed. 2005. Global Surveillance and Policing. Portland: Willan

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Institutional Perspectives on Law, Work, and Family Catherine Albiston Jurisprudence and Social Policy Program, Boalt Hall School of Law, University of California, Berkeley, California 94720; email: [email protected]


Key Words


gender, organizations, family leave, social change, motherhood


Abstract Work and family scholarship increasingly focuses on how institutions constrain the choices of families struggling to balance market work with care work. Recent legal reforms, including the Family and Medical Leave Act, also focus on institutional reform to alleviate work/family conflict. This article reviews important empirical questions raised by this institutional turn in both law and social science. How have changes in the institutions of family and work contributed to work/family conflict? Have legal reforms produced more egalitarian sharing of care work between men and women? How do work organizations respond to these legal mandates? How have organizational and cultural institutions hindered or given support to laws that attempt to reform the relationship between work and family? Empirical research indicates that legal reforms have brought about important changes but that entrenched work practices and cultural norms around work, family, and gender continue to generate institutional resistance to social change.

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INTRODUCTION


In the past few decades, the conflict between work and family, and the government’s role in managing that conflict, moved from marginal concern to center stage. This emerging focus reflects monumental shifts in women’s workplace participation, family structure, and cultural ideologies concerning gender, work, and family. Changes in labor markets and work organizations are also part of the story. For many families, these converging factors feel like a train wreck of clashing demands. New government policies seem like obvious solutions, yet the conflict between work and family implicates longstanding social structures that may be difficult to dislodge. Demographic changes in families and in women’s workplace participation map on to, and in some instances conflict with, much deeper, institutionalized social practices and normative commitments around work, family, and the relationship between them. These institutions define the meaning of work and give meaning to gender and family. For these reasons, understanding how institutions shape work/family conflict is a central question for social scientists who seek to theorize potential solutions and to document the unintended consequences of legal reforms. The growing focus on institutions reflects the social constructivist turn in social science generally, and in gender theory, organizational theory, and feminist legal theory in particular (Berger & Luckman 1967, Giddens 1984). For example, gender theory has moved away from viewing gender as an individual trait or a socialized identity toward understanding gender as the product of microinteractions and institutionally constrained actions that (re)produce gendered social structure (Ferree 1990, Ridgeway & Smith-Lovin 1999, Risman 1998, West & Zimmerman 1987). In the organizational literature, social constructivist perspectives gave rise to neo-institutional theories about how organizational practices become institutionalized through normative, mimetic, or coer-

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cive pressures from organizational environments rather than from economic or production imperatives (DiMaggio & Powell 1983). From this perspective, work organizations that grapple with work/family issues do not just rationally respond to competitive pressures, but also respond to, and recreate, social meanings in response to their organizational environments. Social constructivist ideas also found their way into debates in feminist legal theory about the meaning of equality when it comes to combining work, pregnancy, and family responsibilities (Finley 1986, Kay 1985, Littleton 1987, Minow 1987, Williams 1984/1985). Feminist legal theorists documented how socially constructed gender norms permeate the workplace and how work institutions recreate inequality by channeling women into marginal jobs and traditional family roles (Abrams 1989, Krieger & Cooney 1983, MacKinnon 1989, Siegel 1985). The institutional turn in all these areas of scholarship suggests that a new perspective is emerging in which work and family scholars think of work as more than a neutral set of economically rational organizational practices that are separate from other arenas of social life. Instead, scholars in diverse disciplines have begun to view work as a social institution that shapes not only experiences within work organizations, but also the division of labor within families and the meaning of gender itself. In this view, work practices and norms are tied to deeply engrained normative commitments that help recreate and reinforce the social meaning of both work and gendered family arrangements. This perspective frames new questions about law’s role in work/family conflict, including how legal reforms interact with the norms and practices embodied in the institutions of work and family. This review examines how institutional processes shape the conflict between work and family and affect legal reforms directed toward easing that conflict. It considers how changing demographic and social arrangements have eroded standard work practices


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and traditional family structure as mutually constitutive institutions. It also considers the degree to which institutional processes hinder or give support to legal mandates for reforming the relationship between work and family. As the empirical research reviewed here demonstrates, these organizational and cultural institutional processes are critical for evaluating whether legislative change is likely to bring about meaningful social change. Together, the institutions of work and family encompass most of social life, and so it should not be surprising that the literature in this area is wide-ranging, interdisciplinary, and somewhat unwieldy to summarize. As a result, this article does not comprehensively address several important areas, including comparative research on work/family policies and research regarding the division of labor within the family. Excellent summaries of comparative research (Gornick & Meyers 2003, Kelly 2006) and work within the family (Bianchi et al. 2006) can be found elsewhere. Instead, this review develops its institutional theme by first examining how major social shifts have undermined the symbiotic relationship between standard work practices and traditional family arrangements. Second, the article considers the relationship between legal reforms and (a) workers’ choices and behavior, (b) organizational adoption of work/ family policies, and (c) institutional resistance to work/family policies. The review concludes by examining recent proposals for reform in this area, asking how institutional insights into the work/family conflict might better inform these policy choices.

UNDERSTANDING THE PROBLEM Describing the problem as the “conflict between work and family” is somewhat of a misnomer because of course not all family forms conflict with work schedules and demands. Families structured around a (male) breadwinner and a (female) homemaker are compatible with, and complement, the traditional

structure of paid employment on a full-time, year-round schedule. Conflict between work and family reflects substantial changes to both families and work that make these institutions less compatible and symbiotic. Indeed, much recent theorizing about work and family issues focuses on naming and analyzing the institutional dependence between the male breadwinner model and traditional work structures, including how these two institutions are mutually constitutive and reinforcing, even in the face of substantial social change undermining both sides of the dyad. And, as I explore in greater detail below, legal solutions interact with institutional arrangements in complex ways that make policy solutions difficult to formulate. So, the problem can be understood not so much in terms of static conflict, but instead in terms of dynamic social change that produces both adaptation and retrenchment in institutional arrangements. Part of that social change has been a steep rise in the proportion of women who work. In the latter half of the twentieth century, women’s labor force participation increased dramatically. In 1996, the labor force participation rate of women with children under six was 62.7%, compared with 45.1% in 1980, 30.3% in 1970, and only 18.6% in 1960 (U.S. Dep. Commerce 1997). Similar patterns emerged for women’s participation rate in general (Hayghe 1997). To be sure, although most married women with children under six are employed, only about a third of employed mothers work full time (Cohen & Bianchi 1999, Kelly 2005a). In contrast, 96% of fathers with children under six were employed in 1997, and most of those men work full time (Kelly 2005a). Nevertheless, even though women may not always work the same schedules as men, many more women work now compared with 30 years ago. Not surprisingly, given women’s growing labor force participation, the proportion of families that fit the traditional breadwinner model also declined during this period, although the traditional model was never universal, particularly among economically and www.annualreviews.org • Law, Work, and Family

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racially marginalized populations (KesslerHarris 1982). Approximately 70% of families in 1940 fit the traditional breadwinner model, but by 1988, traditional families accounted for only about 20% of all families (Hayghe 1990). Dual-income families did not become the new norm, however. Although dual-income families make up a growing proportion of families, single-parent families are also on the rise owing to increasing divorce rates and more never-married parents (Fields & Casper 2001, Hayghe 1990). As a result, there is no longer a typical or dominant family form. This change in the composition of American families presents particular challenges for crafting legal responses to work and family issues, as no one policy will fit all families. Women’s increasing workforce participation can be seen as reflecting changing norms about the acceptability of women (particularly women with children) engaging in paid employment. Indeed, this increase coincided with the women’s movement in the 1970s and legislation such as the Civil Rights Act of 1964 that prohibited workplace discrimination on the basis of sex (Ferree & Hess 1994). The increase also can be seen as a response to structural changes in the labor market such as stagnating wages and increasing instability of employment for many American workers. Many mothers entered the work force in part because one income was no longer sufficient to support their families (Martin & Kats 2003, White & Rogers 2000). In addition, patterns of hours worked have changed in the past three decades. Many highly skilled workers experienced an increase in hours worked ( Jacobs & Gerson 2001, 2004; Schor 1992). At the same time, other workers have experienced increasing instability and contingency around work ( Jacobs & Gerson 2001, 2004), which sometimes has required that either one parent hold down two jobs or both parents work. Some theorists point out that this changing institutional environment not only produced major structural changes in the labor force, but also generated deep contradictions be-


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tween cultural norms associated with market work and those associated with care work (Gerson 2002, Hays 1996). Working women in particular find themselves in a catch-22 between suboptimal choices, as they cannot meet both good worker standards, which require full-time, uninterrupted employment, and good mother standards, which require intense, time-consuming, and personal care (Hays 1996, Williams 2000). As Gerson (2002, p. 12) puts it, social change creates ambiguity that gives rise to serious socially structured moral dilemmas because “institutional and cultural contexts make it difficult or impossible for individuals to make a socially sanctioned choice. . . . [A]ll options invite disapproval but action is nevertheless required.” However, such social contradictions often create opportunities for innovative responses to change that can both undermine and rework the institutions that constrain choice around work and family (Albiston 2005a, Gerson 2002, Ridgeway & SmithLovin 1999, Sewell 1992). Both federal and state governments have adopted legal reforms to respond to the stress on social institutions created by these changes. For example, Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of gender in the terms and conditions of employment (42 U.S.C. § 2000e et seq.). The Pregnancy Discrimination Act requires employers to treat pregnant women the same as other employees who are similar in their ability or inability to work (42 U.S.C. § 2000e(k)). The Equal Pay Act requires that men and women who perform the same jobs receive the same pay (29 U.S.C. § 206(d)). The Family and Medical Leave Act (FMLA) requires covered employers to grant eligible workers up to 12 weeks of unpaid, job-protected leave each year for a variety of family and medical reasons, including maternity leave and leave to bond with a new child in the family (29 U.S.C. § 2611 et seq.). In addition, several states have adopted more extensive leave statutes, including paid leave in California and time off for ordinary events in caring for families such as


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attending doctors’ appointments or caring for mildly ill children who are nevertheless too sick to attend school (Albiston 2005c, Han & Waldfogel 2003). All these developments respond, in part, to the growing proportion of women, especially mothers, who now work outside the home, and the pressure on workers to balance work responsibilities with family caregiving needs. Extensive as these reforms are, they lag far behind family policy provisions in most other industrialized countries (Gornick & Meyers 2003). Although early legal reforms generally focused on prohibiting discrimination on the basis of gender, recent legislation has moved away from an antidiscrimination model and toward requiring substantive changes in institutionalized work practices (Burstein et al. 1995). The FMLA, state leave statutes, and laws mandating “sick days for sick kids” all reflect this trend, which tracks the reasonable accommodation approach taken by the Americans with Disabilities Act (ADA). This trend reflects a major theoretical shift in approaches to work/family issues. It acknowledges that not only overt discrimination, but also the very nature of institutions themselves drive the conflict between work and family. These reforms recognize that substantive change requires reworking institutions directly and attempt to use law to do just that. Below, I take up the question of whether institutional processes have helped or hindered these legal reforms.

GENERAL IMPACT OF LEAVE LEGISLATION If choice and agency to manage work and family are institutionally constrained, legally mandated changes in institutional arrangements should, theoretically, produce different choices and behavior. Accordingly, one important empirical question is how legislative changes to institutionalized work requirements affect parents’ and employers’ responses to work/family conflict. This section discusses research about how leave legislation

(primarily the FMLA) has affected both gender equity and the work/family conflict. The primary research questions here include: How has leave legislation affected leave coverage? Do more workers now have access to family leave? Has the legislation promoted egalitarian sharing of caretaking responsibilities, or do gendered patterns of leave taking persist? How have legal mandates for leave affected the employment and the wages of women?

Leave Coverage Before Congress enacted the FMLA, leave benefits in the United States were far from universal and were primarily available to highly paid, high-status workers (Kamerman et al. 1983, Vogel 1993). Some scholars suggested that the FMLA, which applies only to large employers, would do little to improve the availability of leave because it covers less than half of private sector workers and because covered workers are disproportionately likely to have had access to leave even before the FMLA came into effect (Ruhm 1997, Waldfogel 1999b, 2001). Empirical evidence indicates, however, that the FMLA has significantly increased the percentage of workers with access to family leave. For example, Han & Waldfogel (2003) found that legal entitlements to parental leave substantially increased unpaid leave coverage in the 1990s. The largest jump in coverage occurred around the enactment of the FMLA in 1993, suggesting that legal mandates produced this increase (Han & Waldfogel 2003). In addition, the post-FMLA increase in coverage was sharpest among workers covered by the act, indicating that the law affected coverage independent of other contemporaneous social changes that may have encouraged employers to provide leave (Waldfogel 1999a, 2001). Moreover, increased coverage estimates do not account for expansion in benefits among employers who offered leave before the FMLA became effective. For example, two-thirds of employers reported altering their leave policy to comply with the FMLA, including www.annualreviews.org • Law, Work, and Family

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providing longer leaves (66%), permitting leaves for male workers (69%), or providing job protection for leaves (55%) (Commission on Leave 1996). Class differences in coverage among workers persist, however. Lower-wage workers are less likely to be covered because they tend to work for smaller employers that are not covered by the act (Cantor et al. 2001, Gornick & Meyers 2003). Annu. Rev. Law. Soc. Sci. 2007.3:397-426. Downloaded from arjournals.annualreviews.org by Neyer Zapata on 11/18/07. For personal use only.

Patterns in Leave Use Has leave legislation promoted a more egalitarian division of caretaking responsibilities between men and women? To answer this question, several scholars have investigated the relationship between gender and patterns of leave taking post-FMLA. Although the FMLA was intended to promote gender neutrality in family leave use (Schroeder 1988), critics note that unpaid FMLA leave tends to reinforce gendered patterns of care work. They contend that because women generally make less than men, families incur smaller opportunity costs if the mother, rather than the father, takes unpaid leave (Dowd 1989a, Kittay 1995).1 In addition, unpaid leave violates cultural norms about men as family breadwinners, which may cause employers to resist allowing men to take leave. I explore the question of employer attitudes in more detail below in the section on organizational resistance to leave. Empirical studies consistently find gendered differences in leave-taking behavior. Women generally take family leave more often than men, and women generally take longer family leaves than men (Armenia &

1

This critique assumes, however, that there are two parents in the family, rather than a single parent who needs jobprotected leave to hold on to a job. Also, in the United States leave entitlements are personal, rather than family, benefits, in the sense that the FMLA allows each parent to take up to 12 weeks of unpaid, job-protected leave for the arrival of a new child. This arrangement creates an incentive for fathers to take leave to maximize parental time with the new child because the father’s leave time is a “use it or lose it” benefit that cannot be transferred to the mother.

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Gerstel 2006, Gerstel & McGonagle 1999). Although men do take family leave, these leaves tend to be of relatively short duration, from a few days to one week (Armenia & Gerstel 2006, Bond et al. 1991, Pleck 1993), compared with approximately 9 to 12 weeks for women, particularly for maternity disability leave (Commission on Leave 1996, Hyde et al. 1996). Armenia & Gerstel (2006) found that leave taking varied with the reason for taking leave as well as with gender: Men are almost as likely as women to take leaves for seriously ill children and parents, but men are much less likely to take leaves to care for and bond with a newborn child. Most men report that they want the opportunity to take family leave (Hyde et al. 1993, Pleck 1993), so these patterns in leave-taking behavior may reflect pressure from exogenous expectations about when it is appropriate for men to take time off from work for family reasons more than endogenous gendered preferences about leave. Armenia & Gerstel (2006) found interesting racial differences in these gendered leave-taking patterns: White men, but not men of color, are less likely than women to take family leave. The researchers suggest that the interaction between race and gender may reflect cultural factors in that children and kinship may be more central among certain racial communities. They also note that the wage gap between spouses is greater for white couples than for African American couples, and this gap may encourage less egalitarian leave taking among whites (Armenia & Gerstel 2006). Future research should investigate variations in cultural norms across multiple racial and ethnic communities, as different cultures may take different approaches to solving the work/family conflict. Indeed, Armenia & Gerstel’s findings underscore how the diversity of families produces different responses to legislation, and how this diversity complicates the task of developing a comprehensive work/family policy. Their findings also show how work features external to the family, such as the gender


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wage gap, shape choices about taking family leave. Empirical research also indicates race and class disparities in the need for and use of leaves provided by the FMLA. Gerstel & McGonagle (1999) found that although women, parents, low-income individuals, and African Americans were particularly likely to perceive a need for job leaves, married women and whites were more likely to actually take leave. In addition, workers who meet the criteria for coverage under the FMLA tend to be relatively affluent. The authors argue that the FMLA is structured to benefit primarily white, middle-class, married individuals with significant financial and familial resources, particularly given the unpaid nature of leave and the relatively narrow definition of family in the statute. They also note that those with less income are especially vulnerable to workplace pressures not to use family leave: Workers with less income were significantly more likely to report pressure to return to work and significantly more likely to report being denied time off to attend to family medical concerns (Gerstel & McGonagle 1999). Thus, not only social inequalities based on gender, but also those based on race and class may be reinforced by the current structure of family leave legislation. Most empirical findings regarding gendered patterns of leave use come from crosssectional, rather than longitudinal studies. Accordingly, they do not speak to how leavetaking patterns may have changed in response to leave legislation, although they do document that gendered patterns of leave taking persist post-FMLA. There are, however, a few studies that analyze longitudinal data to determine whether the FMLA has increased leave usage over time. On this question, the evidence is mixed, with some studies showing that usage increased post-FMLA (Waldfogel 1999b, 2001), and others producing little evidence that the FMLA increased men’s leave taking and only mixed evidence for increases in women’s leave taking (Han & Waldfogel 2003). These findings may differ because Han

& Waldfogel studied only unpaid leave, and, as they suggest, unpaid leave may do little to encourage increased leave taking, especially among men. Indeed, comparative research suggests that fathers’ use of leave is greater in countries with paid parental leave mandates, although it is difficult to disentangle the effects of leave legislation from variation in cultural factors (Gornick & Meyers 2003).

Effects on Women’s Wages and Employment Finally, a few studies address the common concern among economic scholars that the FMLA’s institutional reforms may have unintended negative effects on women’s employment and wages. Although the act is gender neutral, only women use pregnancy-related disability leave. In addition, employers may perceive women to be more likely to use other forms of leave because women traditionally do more care work than men. As Waldfogel (1999b) notes, theory on mandated benefits suggests that if employers perceive women to be more costly employees than men owing to leave mandates, they may pass the costs of FMLA leaves along to women as a group. This cost shifting could take the form of lower employment (if employers shift away from hiring women to attempt to save the costs associated with leave), and/or the form of lower wages (if employers pass along the costs of the benefit to women) (Waldfogel 1999b). Countervailing pressures may mitigate or offset this potential cost shifting, however. For example, Title VII and Phillips v. Martin Marietta Corporation (1971) (which held that an employer’s refusal to employ women, but not men, who had preschool-age children could violate Title VII) prohibit employers from basing decisions about wages and employment on gendered assumptions about care responsibilities. Although legal claims can be difficult to prove, antidiscrimination law may have some normative or deterrent effect that mitigates potential employer cost shifting. In addition, cost shifting might be offset by an www.annualreviews.org • Law, Work, and Family

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increase in women’s labor force attachment if women use job-protected leave to stay in the same position, retain their seniority, and avoid a break in employment (Waldfogel 1999b). Empirical studies generally have found little or no negative effect of leave legislation on women’s wages and employment (Baum 2003; Klerman & Leibowitz 1997; Ruhm 1997, 1998; Waldfogel 1999b).2 For example, both Waldfogel (1999b) and Baum (2003) found that the leave benefits mandated by the FMLA had no significant negative effects on women’s employment or wages. Waldfogel also shows in other work that women who had leave coverage (paid or unpaid) and returned to work after childbirth received a wage premium that offset the family gap or wage penalty for having children (Waldfogel 1997a, 1998). This finding suggests that leave legislation improves women’s work outcomes by ensuring continuity in the same job and reducing long breaks in employment. Along these lines, family leave policies, especially those that mandate job-protected leave, are associated with a more rapid return to work after leave and with returning to the same employer after childbirth (Berger & Waldfogel 2004, Hofferth & Curtin 2006, Lyness et al. 1999, Smith et al. 2001, Waldfogel 1998, Waldfogel et al. 1999). One recent longitudinal study found that women who took leave returned to work significantly sooner after the passage of the FMLA than before it, and the proportion of women who returned to the same job was higher post-FMLA than before it (Hofferth & Curtin 2006). Hofferth & Curtin (2006) also found, however, that mothers’ hourly postpartum wages were lower post-FMLA than before, except for mothers who returned to the same employer, which the authors suggest indicates a trade-off between flexibility and compensation postpartum.


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Although women as a group do not appear to have suffered detriment as a result of legislation, research suggests that individual workers who take leave are penalized in terms of wages and other benefits ( Judiesch & Lyness 1999, Jacobsen & Levin 1995).

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The premise behind the mandated benefits dilemma may also be faulty, as this theory assumes that there are, in fact, costs to providing family leave. There is contrary evidence that providing unpaid leave costs less than allowing employees to quit and hiring replacements (Trzcinski & Alpert 1990). Costs are minimal because employers do not have to pay workers on unpaid leave, and employers typically shift the work of absent workers to other employees, rather than hiring temporary replacements (Bond et al. 1991). In addition, several studies indicate that access to family friendly policies reduces turnover, which can be very expensive for employers (Aryee et al. 1998, Batt & Valcour 2003, Glass & Riley 1998, Holtzman & Glass 1999, Scandura & Lankau 1997). Although research suggests that the FMLA produced little or no negative effect on employment and wages, comparative research suggests that the effects of leave legislation may vary with the length of leave taken (Gornick & Meyers 2003, Ruhm 1998). In a study of maternity leave provisions across 16 European countries, Ruhm (1998) found that short mandated leaves (three months paid leave) increased women’s employment and had no wage effects, whereas longer mandated leaves (approximately nine months leave or more) increased employment but had a negative effect on wages. Ruhm notes that the positive employment effect may be because some countries count individuals on leave as employed, whereas workers who left employment after the birth of a child count as unemployed, although this does not explain the entire positive impact on employment. Ruhm also notes that long mandated leaves may cause aggregate wages to go down not only because employers (illegally) shift leave costs to female employees, but also because the female labor supply goes up as women who otherwise would not work (and who may have fewer skills and less experience) enter the labor market to qualify for paid leaves. Perhaps this explains why evidence regarding mandated leave benefits in the United States, virtually all of


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which are unpaid, finds few negative effects on either employment or wages for women. Nevertheless, short, unpaid leaves impose other costs. Workers who need leave often do not take it because it is unpaid (Cantor et al. 2001), and they may suffer financial hardships because of the loss of pay if they do take leave. Also, longer maternity leaves are associated with better outcomes for both mothers and children (Clark et al. 1997, Gornick & Meyers 2003, Hyde et al. 1995, Ruhm 2000). In contrast to the near consensus that leave mandates do not negatively affect the employment and wages of women generally, ample research makes clear that there is a significant wage penalty for motherhood (Kelly 2005a). Mothers earn less than men, whether or not those men have children; mothers also earn less than women who do not have children. For example, Waldfogel (1997b) found that in 1991, mothers’ hourly wages were 81% of nonmother female workers’ wages and 73% of men’s wages. Other studies based on survey data document similar penalties (Anderson et al. 2003, Budig & England 2001, Waldfogel 1997a). What causes these penalties is in dispute, with some scholars attributing wage differences to productivity and skill differences between mothers and nonmothers, and other scholars pointing to discrimination as the explanation. Supporting the discrimination explanation, most studies indicate that wage penalties remain even after controlling for factors that might differentiate mothers and nonmothers, such as human capital investments, part-time employment, the mother-friendly characteristics of jobs held by mothers, and other important differences in the characteristics, skills, and behaviors of mothers and nonmothers (Anderson et al. 2003, Budig & England 2001, Waldfogel 1997a). Experimental research that holds constant worker characteristics such as qualifications and productivity confirms that wage differentials likely result from employer discrimination against mothers, rather than from differences between mothers and other workers (Correll et al. 2007, Cuddy et al. 2004, Fuegen

et al. 2004). For example, Cuddy et al. (2004) found that when working women become mothers, they trade evaluations of perceived competence for warmth: They are perceived to be warmer but less competent than working women without children. In contrast, when men become fathers, they make no such tradeoff; instead they gain in perceived warmth and maintain perceived competence relative to working men without children. Cuddy et al. (2004) also found that evaluators reported less interest in hiring, promoting, and educating working mothers relative to working fathers and childless employees. Correll et al. (2007) found that subjects who evaluated applications from equally qualified job candidates penalized mothers relative to other workers on factors such as perceived competence, suitability for management training, and recommended starting salary. Mothers were also held to a higher performance standard than nonmothers in terms of attendance and punctuality at work (Correll et al. 2007). With regard to attendance criteria, as discussed in more detail below, some studies also show that behavior that signals care responsibilities, such as taking leave, is associated with lower performance evaluations, less likelihood of promotion, and lower salaries (Allen & Russell 1999, Glass 2004, Judiesch & Lyness 1999, Wayne & Cordeiro 2003). Legal reforms such as prohibiting parental status discrimination and requiring job-protected leave may help mitigate these effects. Institutional theories suggest that over time, normative, as well as economically rational, motivations may affect employers’ behavior so that both cost shifting (to the extent it exists) and penalties for leave taking become less common (Davis & Kalleberg 2006, Kelly & Dobbin 1999, Meyer & Rowan 1977). Leave legislation is a relatively new phenomenon. As more organizations adopt family friendly policies, these policies may come to be seen as appropriate and legitimate organizational practices. As a result, employers may no longer see penalizing potential leave takers as an available strategy, www.annualreviews.org • Law, Work, and Family

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but instead see providing leave as a legitimate requirement of operating a going concern. Also, as more men begin to take leave, leave taking may eventually cease to be salient as a gendered behavior, which in turn creates less of an incentive to shift costs to women as a group. Some scholars have suggested, however, that it is also possible that the penalty for parenthood may remain but simply cease to be a gendered phenomenon (Hunt & Hunt 1990). In other words, the relevant categories may become parents and nonparents, rather than women and men, without any substantial change in institutional arrangements at work that penalize care responsibilities.


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INSTITUTIONAL PROCESSES AND ORGANIZATIONAL ADOPTION OF FAMILY POLICIES Neo-institutional developments in organizational theory suggest that social meaning and organizational environment are as important as competitive pressures in determining how organizations respond to legal mandates. These perspectives posit that organizational practices become institutionalized—that is, legitimate, taken for granted, standard, and expected—through environmental pressures that feed mimetic, coercive, and normative isomorphic processes (DiMaggio & Powell 1983). For example, organizations may respond to legal mandates by adopting new policies and practices (coercive isomorphism). Organizations do this not only from fear of legal sanction but also from the need to appear to be legitimately responding to legal mandates; indeed, this form of compliance may be largely symbolic and ceremonial (DiMaggio & Powell 1983, Edelman 1992). Organizations may also copy the compliance behavior of other organizations in their organizational field (mimetic isomorphism), or adopt policies recommended by human resources professionals attuned to the norms in their field (normative isomorphism) (DiMaggio & Powell 1983). In these ways, 406

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neo-institutional theories show how an organization’s environment as a whole, rather than just formal legal mandates or competitive pressures, drives compliance behavior and shapes what form institutionalized compliance with law will take (DiMaggio & Powell 1983; Edelman 1990, 1992, 1999; Edelman et al. 1993, 1999; Edelman & Suchman 1997; Sutton et al. 1994). There is no question that more organizations have adopted work/family policies in recent years, but there are competing theories as to what drives this process. In their excellent and comprehensive article, Kelly & Dobbin (1999) examine three competing theories, and their analysis provides a useful framework for discussing this question here. The researchers first discuss explanations centered on the feminization of the workplace, which contend that organizations adopt work/family policies as a means to compete for women workers as more women enter the workforce (Davis & Kalleberg 2006, Glass & Fujimoto 1995, Goodstein 1994, Guthrie & Roth 1999, Osterman 1995). In contrast, explanations that focus on legal regulation contend that work/family policies are primarily a rational response to legislative mandates. These approaches generally treat organizations as rational actors that adopt policies in response to the threat, and relative likelihood, of legal sanction (see Kelly & Dobbin 1999). Taking a third approach, some neo-institutionalist scholars argue that work organizations adopt work/family benefits in response to environmental pressures including not only law, but also normative pressures from other organizations in their organizational field and from professionals’ recommendations about how to translate ambiguous legal mandates into corporate policy (Edelman 1990, 1992; Ingram & Simons 1995; Kelly & Dobbin 1999; Milliken et al. 1998). Here, the process is driven in part by the organization’s need both to signal compliance with the law and to seek legitimacy within its organizational field (DiMaggio & Powell 1983). Thus, as Davis & Kalleberg (2006, p. 199) note, “organizations


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may adopt family friendly benefits because they regard them as accepted and legitimate practices, whether [or not] they actually enhance recruitment and retention, increase efficiency, or lower costs.” Kelly & Dobbin’s (1999) study evaluated these competing theories by examining organizational adoption of maternity leave policies between 1955 and 1985, prior to enactment of the FMLA. They found little evidence for the feminization thesis; neither sex composition of the workplace nor increasing feminization over time was significantly related to organizational adoption of leave policies. They also conclude that organizations were not responding to the threat of direct legal sanction, as relatively weak and legally embattled administrative rules were better predictors of maternity leave adoption than were the stronger statutory mandates enacted later. Instead, the researchers argue, organizations “behaved as social actors, copying the behavior of others, rather than as rational calculators, making objective assessments of the risks associated with noncompliance” (Kelly & Dobbin 1999, p. 486). To support this conclusion, they point to the fact that the presence of benefits professionals (who presumably track emerging norms in the organizational field) and media coverage of challenges to Equal Employment Opportunity Commission regulations on maternity leave best predicted adoption of maternity leave policies. One might quibble that perhaps media coverage of challenges to the regulations did not so much communicate norms as increase the salience of legal sanctions, but the researchers also found that other measures of sanction salience, such as the number of enforcement actions under maternity leave laws, did not predict adoption of maternity policies. Other studies provide additional evidence to support neo-institutional explanations for organizations adopting work/family policies in response to legal mandates (Davis & Kalleberg 2006, Guthrie & Roth 1999). Davis & Kalleberg (2006) distinguish among coercive, normative, and mimetic institutional

processes. They found evidence that mimetic (imitating other organizations) and coercive (in response to legal mandates and surveillance) institutional processes lead to organizations adopting work/family policies, but they found no evidence that normative institutional processes driven by human resources professionals are at work. Guthrie & Roth (1999) found that organizations in federal judicial circuits that have more expansive interpretations of antidiscrimination legislation are more likely to offer paid maternity leave. Their cross-sectional data, however, make it difficult to determine the causal mechanism operating here. These organizations may not be responding to their legal environment, but instead may simply be in progressive jurisdictions where both the courts and the business communities embrace family friendly policies. Alternatively, the circuit courts might be responding to, and institutionalizing, progressive business practices rather than the other way around (Edelman et al. 1999). The growing evidence for how institutional processes affect organizational adoption of work/family policies raises some interesting empirical questions. First, as Edelman (1992) has pointed out, formal policies do not necessarily translate into actual compliance on the ground. Do institutional processes lead to significant progress toward family friendly workplaces, or do they merely produce symbolic compliance in the form of paper policies that organizational actors largely ignore or subvert? Second, if in fact organizations respond to normative institutional pressures in addition to the threat of legal sanction, at least theoretically it should be possible to harness institutional processes to produce family friendly benefits that go far beyond legal requirements. In other words, if leading organizations in certain organizational fields adopt family friendly best practices such as paid leave that go beyond legal requirements, mimetic or normative pressures should cause other organizations to do so as well, even in the absence of coercive pressures from law. If this is the case, then www.annualreviews.org • Law, Work, and Family

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promoting family friendly best practices to human resources professionals and other diffusion agents would help promote change alongside more coercive legislative reforms (Kelly 2003, Williams & Segal 2003). Finally, institutional processes may also lead to undercompliance with legal mandates. In recent work, Kelly (2005b) found that at least one-quarter of workplaces covered by the FMLA failed to comply with the parental leave provisions of this federal statute. In her analysis of data from a survey of organizations covered by the FMLA, she found that noncompliance took a particular, gendered form: Organizations with illegally short maternity leaves were more common than those that lacked maternity leave, whereas the pattern was reversed for paternity leaves. Note that although the FMLA is gender neutral, these patterns of noncompliance track the older legal environment that required pregnancy disability to be treated the same as other disabilities and did not require parental leave for either parent. Kelly argues that noncompliance results from the failed deinstitutionalization of older policies, such as short pregnancy disability leaves often required by the Pregnancy Discrimination Act, and the common practice of allowing no time off or only a few days of vacation for fathers (see Malin 1993/1994). Thus, “noncompliance may occur when organizations hold on to existing policies and practices (and the beliefs and expectations that support those practices), rather than changing their policies and practices to match the new legal environment” (Kelly 2005b). Kelly’s work confirms that noncompliance, like compliance, does not always follow from rational calculations of costs and benefits, but instead can be influenced by institutionalized practices, even those that were institutionalized in response to prior legal mandates.


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INSTITUTIONAL RESISTANCE TO WORK/FAMILY POLICIES In addition to explaining why organizations adopt family friendly policies, institutional 408

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processes also play a role in organizational resistance to legal mandates. For example, organizations that offer work/family policies may adopt these policies primarily for their symbolic value in signaling that the organization is responsive to legal mandates and to normative concerns about work/family conflict (Meyer & Rowan 1977). In practice, these policies may remain largely decoupled from the actual functioning of the organization and may therefore produce little substantive change in managerial behavior (Edelman 1992, Edelman et al. 1999). In some instances, managers adapt workplace policies to be responsive to managerial concerns by implementing work/family accommodations as merely discretionary benefits rather than legal mandates (Albiston 2005a, Kelly & Kalev 2006), or by treating disputes as personality conflicts or managerial failures rather than potential legal violations (Albiston 2005a,b; Edelman et al. 1993). In addition, leave policies for men can be hidden by incorporating them into existing leave of absence policies, and, as a result, many fathers may be unaware that legally mandated parental leave benefits are available to them (Malin 1993/1994). Does organizational adoption of work/ family policies in response to law translate into actual change on the ground? Several scholars suggest that established work practices, and the normative beliefs associated with them, are likely to create resistance to work/family policies. These practices include norms around time, such as face time, constant availability, and total commitment to the job, all of which are common in professional settings (Abrams 1989, Acker 1990, Epstein et al. 1998, Perlow 1995, Schor 1992, Williams 2000). Institutional resistance, particularly to men taking family leave, may also come from gendered cultural norms about men as workers and women as caretakers (Albiston 2005a, 2006; Malin 1993/1994; Pleck 1993). Considerable empirical evidence details how institutional processes within organizations can undermine work/family policies.


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In some instances, internal organizational cultures discourage workers from making use of these policies. For example, Thompson et al. (1999) found that perceptions of an unsupportive work/family culture were associated with less utilization of work/family benefits and were positively related not only to work/family conflict but also to workers’ intentions to leave the organization. Ethnographic studies conducted before the FMLA came into effect show that workers often choose not to use their employers’ family friendly policies because they fear negative consequences for their status and advancement at work (Fried 1998, Hays 1998, Hochschild 1997). These fears are wellfounded given evidence that taking leave is associated with lower wages and other penalties at work ( Jacobsen & Levin 1995, Judiesch & Lyness 1999). Qualitative research conducted after the FMLA became effective documents that penalties for taking leave persist despite legal entitlements to leave, and that antileave norms are not limited to one or two idiosyncratic workplaces (Albiston 2005a,b, 2006). Indeed, a post-FMLA survey found that 32% of eligible leave takers chose not to do so because they feared they might lose their job, and 43% chose not to take leave because they believed their job advancement might be hurt if they did (Cantor et al. 2001; see also Finkel et al. 1994). Intraorganizational social context also can affect leave use. For example, workers who belong to work groups with organizational clout are more likely to use family friendly policies than those that have less power, even after individual-level factors such as gender or caretaking responsibilities are controlled (Blair-Loy & Wharton 2002). Interestingly, however, the effects of work group power are much stronger for flexibility policies, which are not legally mandated, than for family care policies, which are now legal entitlements for many employees (Blair-Loy & Wharton 2002). Legislative mandates may make family care policies less ambiguous, contested, and perhaps discretionary than flexibility poli-

cies, and thus help reduce the impact of a worker’s personal (or work group) organizational clout. Nevertheless, these findings indicate that workers’ power within the organization continues to affect their ability to use family friendly policies despite legal reforms. Cultural institutions also interact with organizational processes to create gendered variation in patterns of leave use. Work is a social institution built around cultural expectations and practices regarding how men and women combine paid employment and family obligations. Full-time, uninterrupted work schedules implicitly assume that workers have no caretaking responsibilities and that someone else (traditionally an unemployed wife) will see to those needs (Fraser & Gordon 1994, Pateman 1988, Williams 2000). Expectations that women will care for family and men will take on the breadwinner role do not vanish overnight when new legislation passes or organizations adopt family friendly policies. Also, workplace practices built around these gendered assumptions persist, and these practices can create resistance to legal rights to leave. Although federal and state leave laws are gender neutral, organizations may implement these mandates through a filter of gendered expectations about work and family. For example, Albiston (2005b) found that men and women who experienced conflict over FMLA leave received different reactions to their attempts to mobilize their entitlements to family leave. Men were encouraged not to use their entitlement to leave in the first place, whereas women experienced fewer problems taking leave but encountered resistance to returning to work or penalties at work if they did return (Albiston 2005a). Organizational resistance to fathers taking parental leave is common. Malin (1993/1994) reports that in surveys conducted before the FMLA became effective, 63% of larger employers considered it unreasonable for a man to take any parental leave and another 17% considered parental leave reasonable only if limited to two weeks or less. Legal mandates may www.annualreviews.org • Law, Work, and Family

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eventually change these norms, but even in Sweden, where parental leave mandates are well established, employer resistance to fathers’ taking leave persists. For example, Haas & Hwang (1995) found that although most Swedish companies were aware of family leave laws, few had changed their corporate policy to make the work environment supportive of fathers. Swedish men made only modest use of leave time, typically taking a few days of paid time off immediately following the birth of a child, and not otherwise reducing their work schedule or taking longer leaves (Haas & Hwang 1995). A few experimental studies also document these cultural responses to leave. Because experimental studies hold postleave performance constant, they isolate the effect of normative expectations attributable to gendered stereotypes from the effect of variations in actual performance. Experimental research indicates that decision makers evaluate leave taking by men more negatively than that of women, and more negatively still than how they evaluate men who do not take leave. For example, Wayne & Cordeiro (2003) asked subjects to evaluate identical personnel files for employees who took legally protected FMLA leaves. Their subjects rated men who took parental leave as less likely to help their coworkers, be punctual, work overtime, or have good attendance than men who did not take parental leave and than women regardless of leave-taking behavior. In another experimental study, Allen & Russell (1999) found that men who took a leave of absence for parental reasons were less likely to be recommended for rewards than were men who had not taken leave (Allen & Russell 1999). Other studies have not found similar effects for women who took leave compared with women who did not (Wayne & Cordeiro 2003). There is some evidence, however, that in general male evaluators perceive women to be less likely than men to work overtime, be punctual, and to have good attendance (Wayne & Cordeiro 2003).


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These studies suggest that deeply entrenched expectations about work and gender affect how leave rights play out for men and women. These expectations, however, present complicated dynamics around the interaction between gender and caretaking behavior. On this point, Ridgeway & Correll (2004) theorize that motherhood is a status characteristic quite apart from the hierarchical status characteristic of gender, and as a result workers who signal that they are primary caretakers (by, for example, taking family leave) are likely to be disadvantaged in the workplace. But they note that gender matters, too: When men take leave, it may be that “a man’s lower status as a [primary caregiver] will combine with his somewhat higher status as a man, so that he will not suffer quite as much in terms of lowered performance expectations as would an otherwise similar woman who is a mother” (Ridgeway & Correll 2004, p. 696). Alternatively, the interaction between gender expectations and expectations regarding caregivers could also mean that “since being a mother is more gender inappropriate for men than women, men identified as primary caregivers will suffer a backlash in the workplace that overwhelms any status advantage that they have as males” (Ridgeway & Correll 2004, p. 696). The empirical studies discussed above suggest that men who take leave do incur a status disadvantage that overwhelms male privilege, as men seem to suffer greater penalties for taking leave than do women. Indeed, men who make use of leave entitlements violate gendered expectations that men are breadwinners and women are caretakers, and those who violate expected gender roles are penalized (Lobel & Clair 1992, Lovell et al. 1999). As a result, managers may evaluate the work performance of male leave takers less favorably than that of men who conformed to gendered expectations by not taking time off. It is also possible that managers may automatically evaluate women as if they are primary caretakers whether or not they take leave; this stereotyping would explain why taking leave


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seems to affect the performance evaluations of men more than those of women. Taken together, these studies suggest that institutions, in the form of organizational processes and cultural norms, reduce the likelihood that men will take parental leave and contribute to the pattern that men take shorter parental leaves than women. These patterns may be not so much the product of hardwired gendered preferences about parenting—indeed, most men report that they want the opportunity to take family leave or spend more time with their family (Gornick & Meyers 2003, Hyde et al. 1993, Pleck 1993)—but instead the result of institutionalized constraints that discourage men from using leave. The unfortunate consequence is to encourage gendered patterns of leave taking, which are already reinforced by labor market differentials in pay between men and women and the unpaid nature of FMLA leave. As a result, these cultural institutions undermine the FMLA’s ability to reduce gender stratification in pay and employment and to encourage more egalitarian caretaking arrangements in the family. In this way, organizational and cultural institutions help reinforce and maintain the mutually constitutive relationship between standard work practices and the traditional breadwinner/caretaker division of labor in the family. They also put enormous pressure on single-parent families and other family forms that do not mesh well with the existing structure of work. And, because institutional constraints help channel workers’ choices into gender-differentiated behavior, they also reinforce the social meaning of gender itself (Ridgeway & Smith-Lovin 1999). Resistance to family friendly policies may also come from workplace practices that appear gender neutral but that have their roots in the historical institutionalization of full-time wage labor as the male breadwinner norm (Fraser & Gordon 1994). For example, empirical work documents time norms that frame full-time workers as more valuable, dedicated, and committed than part-time workers

(Epstein et al. 1998, Hochschild 1997). Parttime workers also reap proportionately fewer benefits from work than do full-time workers (Epstein et al. 1998, Ferber & Waldfogel 1998, Gornick & Meyers 2003, Kalleberg 1995, Smith 2002). For example, Gornick & Meyers (2003, pp. 62–63) found that after controlling for differences in human capital between part- and full-time workers, “women in the United States who work part time earn about 21% less an hour, on average, than their full-time counterparts,” a larger differential than in other industrialized countries. Other research indicates that employers tend to devalue the performance of workers who violate time norms by taking time off, even when presented with objective indicators of continued good performance (Albiston 2005a, Allen & Russell 1999, Hochschild 1997, Wayne & Cordeiro 2003). Because antidiscrimination laws focus on discriminatory intent and defer to legitimate business practices and business necessity as defenses to discrimination claims, it is difficult to challenge penalties for workers whose schedules do not fit the institutional norm. Laws mandating structural changes to work schedules, such as the FMLA, may provide better options for institutional change. Of course, whether devaluing part-time workers is perceived as a legitimate business practice is itself socially constructed. Courts generally do not inquire, for example, whether such a practice is in fact economically rational. When courts allow employers to treat part-time workers, who are disproportionately women, poorly, they help institutionalize the mutually constitutive relationship between work and the implicit family wage norm that women are not breadwinners but instead work only for “pin money.” Nevertheless, the disadvantages of time norms increasingly apply to both men and women as the labor market polarizes into highly skilled, full-time work on the one hand and less-skilled, contingent, and part-time work on the other ( Jacobs & Gerson 2001, 2004; Kalleberg et al. 2000; Tilly 1991). www.annualreviews.org • Law, Work, and Family

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Finally, additional evidence for neoinstitutional arguments can be found in the fact that employer resistance to leave taking does not seem to be based on difficult experiences with unpaid FMLA leave. Surveys of employers conducted since the law was enacted show that nearly 90% of employers report little or no impact of leaves on productivity, profitability, or growth, and that most employers have found the act relatively easy to administer (Cantor et al. 2001, Waldfogel 2001). In addition, research on disability and medical leave shows that employers resist changes in schedules more than structural changes to the workplace, even though from a rational cost-benefit perspective the latter can be much more expensive (Harlan & Robert 1998). Employer resistance seems to be associated not with rational calculations related to efficiency concerns or operating problems, but instead with deeply entrenched expectations around work time, employer control of schedules, and gendered norms around caretaking and work. These attitudes may change over time as more workers, particularly men, begin to take leave, thus changing the social interactions that help to construct the meanings of work and gender (Ridgeway & SmithLovin 1999). Indeed, survey data collected after the FMLA was enacted indicate a cohort effect in which younger men are more likely than older men to take leaves (Sandberg 1999). Legal entitlements can play an important role in this transformation by creating both a gender-neutral right to leave and a normative discourse that leave taking is legitimate (Albiston 2005a,b, 2006).


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to family leave mandates. Nevertheless, empirical research can add new insights to feminist legal scholars’ theoretical debates about how best to tackle work/family issues. Conflict between work and family, and issues of accommodation around pregnancy in particular, have long presented conundrums for feminist legal theory and for finding practical solutions to the work/family problem. These issues were central in the debates about the meaning of equality and the best method of achieving it that dominated feminist legal theory in the late twentieth century. One school of thought, often called liberal feminism, focused on formal equality; these theorists sought to obtain for women the same rights and privileges as men, including access to employment free from stereotypical assumptions about women’s abilities. A second school of thought, sometimes labeled difference feminism, argued that inequality stemmed from undervaluation of or disregard for women’s interests and failure to accommodate their differences from men. From this perspective, the goal was to obtain pregnancy and maternity leaves from paid employment to accommodate, rather than penalize, the ways women differed from men (Finley 1986, Minow 1987, Williams 1984/1985; see also Kay 1985). These two schools of thought seemed, at first blush, to be fundamentally incompatible. Liberal feminists criticized the goal of accommodation as encouraging protectionist policies that historically had marginalized women in the labor market and limited their choices. From this perspective, asking for special treatment encouraged stereotypes of women as less able than men and reduced all women to the biological function of reproduction, whether or not they chose to become mothers. Difference feminists countered that formal equality theories failed to provide essential accommodations that women needed to balance work and family and succeed in the workplace (Becker 2001). In a variation that attempts to harmonize accommodations with formal equality, Kay (1985) argued that


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the law should treat women differently than men only during the limited, episodic period of pregnancy to avoid penalizing women for exercising their reproductive capacity. These debates only intensified as the Supreme Court considered what equal treatment meant in the context of pregnancy and maternity leave, particularly because the Court concluded that gender discrimination did not include pregnancy discrimination, and that Title VII permitted states to require special treatment for pregnant women in the form of maternity leave (Finley 1986, Krieger & Cooney 1983, Williams 1984/1985). Some scholars resolved the equal treatment/special treatment conundrum by recognizing that institutions like work embody gendered inequality and power. From this perspective, work is not a natural or economically determined set of social relations, but instead is a social institution that implicitly privileges a (male) breadwinner norm (Abrams 1989, Acker 1990, Finley 1986, MacKinnon 1987, Williams 2000). For example, MacKinnon (1987, p. 34) points out that “[c]oncealed [in the sameness/difference debate] is the substantive way in which man has become the measure of all things.” She notes that “virtually every quality that distinguishes men from women is already affirmatively compensated in society [including the fact that] [m]en’s . . . socially designed biographies define workplace expectations and successful career patterns” (MacKinnon 1987, p. 36). This insight moved feminist legal theory beyond the question of how women could be fairly incorporated into existing work structures. Instead, institutionally focused theories revealed how gendered work practices constrained workers’ choices for meeting their family responsibilities in ways that reproduced gender inequality. Other scholars extended this insight by recognizing how workplaces are typically structured around an always-available ideal worker who enjoys significant support from a stay-at-home spouse, traditionally a wife (Abrams 1989, Okin 1989, Pateman 1988,

Williams 2000). From this perspective, standard work practices presume not only a male biography, but also a certain (gendered) division of labor within the family. As a possible reform, Abrams (1989) proposes that Title VII should prohibit employers from applying this ideal worker standard because it is based on the experience of a single, dominant group within the workplace, not the objective requirements of good performance. The debate over work/family policies touches on a classic dilemma at the heart of feminist legal theory: Should feminists seek to enact laws that adapt to the circumstances women find themselves in now and, as a consequence, reinforce those social arrangements? Or should feminists promote laws that create incentives for more equitable sharing of family responsibilities between men and women and risk disadvantaging those women who continue to shoulder the majority of family responsibilities? The institutional approach suggests a different understanding of this dilemma, one that does not foreclose radically restructuring both work and family to allow more creative, varied solutions. From this perspective, the problem is not simply an unequal division of caretaking labor between men and women. Instead, work/family conflict results in part from capitalist work organization and the symbiotic relationship between standard work arrangements and traditional family structures. In this view, legal solutions to work/family conflict require more than just antidiscrimination measures, which tend to take as given gendered work practices built around male norms. Instead, institutional redesign is also necessary. Title VII, the primary federal law prohibiting gender discrimination, has proven to be a poor tool for institutional redesign. For one thing, disparate treatment theories under Title VII defer to facially neutral business practices even when they generate genderdifferentiated outcomes. As a result, courts allow standard business practices with gendered histories to justify treating men and women differently because these practices www.annualreviews.org • Law, Work, and Family

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involve institutional, rather than intentional, discrimination (Abrams 1989). In contrast, disparate impact theories allow workers to challenge workplace practices that disproportionately affect protected groups, and these theories require no proof of discriminatory intent. Consequently, these theories seem to be better vehicles for institutional redesign. However, courts have been reluctant to allow disparate impact challenges to institutionalized practices such as inflexible, full-time work schedules or no-leave policies, even when presented with evidence that these practices have a disparate impact on women ( Jolls 2001). In addition, the Supreme Court undermined disparate impact theories by repeatedly expanding the business necessity defense (Abrams 1989), although Congress reversed this trend somewhat with the Civil Rights Act of 1991 ( Jolls 2001). In short, work practices such as full-time schedules and no-leave policies have become so taken for granted that courts have difficulty imagining productive activities organized in other ways and therefore conclude that existing practices are necessary to doing business. As a result, institutionalized work practices remain largely insulated from Title VII challenges because these practices appear to be natural and normal aspects of productive processes, rather than gendered forms of social organization. Institutional perspectives suggest that feminist legal theorists may have focused too much on how work institutions are gendered. Doing so tends to take gender and gendered characteristics as given and thus merely moves the reification of gender back one step from challenges to overt gender stereotypes. The empirical research suggests that reformers might productively focus on changing institutions directly as a way both to reform material practices and to change norms and attitudes about gender, work, and the relationship between them. This approach invokes a social constructivist strategy directed toward disrupting the institutional processes that construct gender and sustain the mutually constitutive relationship between stan-


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dard work practices and traditional family forms. How much do recent proposals for reform track this social constructivist strategy for change? Recent practical responses to the work/family conflict include three major approaches to reform. One approach would expand antidiscrimination theories to encompass “family responsibilities discrimination” (Williams & Cooper 2004). This approach relies, in part, on an expansive understanding of causes of action already available in existing law, including Title VII, the ADA, the FMLA, and the U.S. Constitution (Williams & Cooper 2004). In addition, Williams (Williams & Cooper 2004, Williams & Segal 2003) has proposed a new statute that would prohibit discrimination on the basis of family responsibilities, regardless of who performs these tasks. The statute would prohibit employers from applying different performance standards to workers who work modified schedules, take parental leave, or otherwise attend to family responsibilities. This approach would have the advantage of decoupling gender from family responsibilities in the applicable legal theories, which would help expand legal protections not only for mothers, but also for fathers and other family members who participate in care work. Scholars have expressed concern about antidiscrimination approaches such as this because, they argue, these proposals primarily help women who can meet standard work requirements but whose employers assume they are less able or committed simply because they are mothers (Becker 2001, Chamallas 1999, Dowd 1989b, Kessler 2001). These critics worry that antidiscrimination theories only protect workers who are able to meet standard work requirements against blanket assumptions that workers with family responsibilities are inferior. As a result, these theories may be less useful to workers who actually need reduced schedules or other adjustments to accommodate standard work practices to their family responsibilities.


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A second approach would be to require standard work practices to accommodate family responsibilities, and several legal reforms seem to be moving in this direction (Burstein et al. 1995, Edwards 1996). Along these lines, Jolls (2001) makes the theoretical argument that legal distinctions between antidiscrimination and accommodation are not defensible because all antidiscrimination mandates require some adjustment to existing workplace practices. Logically, this implies that current antidiscrimination provisions may be sufficient to support family responsibilities accommodations. Other scholars argue explicitly for family responsibilities accommodations that are patterned after existing legally required accommodations for workers’ religious beliefs and disabilities (Kessler 2001, Smith 2001). Such accommodations might include (longer) parental leaves and paid family leave. The accommodation solution to work/ family conflict is still a full-commodification strategy because it continues to commodify both women’s labor and the provision of most care work through market-based child care (Williams 2000). This strategy generally attempts to accommodate family responsibilities within the standard work schedule, with only minor adjustments. As a result, standard, institutionalized work practices remain largely unchanged. Some feminist legal theorists find this proposal troubling because it continues to presume, with only minor exceptions, that workers do not have ongoing caretaking responsibilities at home (Albiston 2005c, Williams & Segal 2003). In addition, delegating care work to the market does little to promote more egalitarian sharing of family responsibilities between fathers and mothers (Glenn 1992). Instead, it merely frees both parents to pursue work structured around the male norm and delegates care work to less economically advantaged women, who are also often racial minorities or recent immigrants (Albiston 2005c, Glenn 1992, Mattingly 2001, ˜ 2000). Perrenas Another flaw in this approach is that market provision of care work is regressive; less

economically advantaged women generally cannot afford to purchase child care at the market rate (Glenn 1992). As a result, women employed to perform care work often must rely on substandard care for their own children because their own labor is so poorly paid. Alternatively, care workers rely on unpaid assistance from female family members whose unpaid labor is thus appropriated to support the market labor of more privileged women (Mattingly 2001). Accordingly, fullcommodification strategies help replicate race and class inequality, fail to encourage an egalitarian division of labor in the home, and do little to change work practices that strain families. Instead, they leave the mutually constitutive relationship between standard work practices and traditional family arrangements intact and merely allow well-to-do women to delegate their traditional family roles to other, less-privileged women. Accommodationist approaches also highlight parents and caregivers as different by defining them as a protected class with special accommodation needs. To be sure, defining the protected class in terms of caretaking behavior rather than gender does help avoid reifying care as a gendered characteristic. Nevertheless, this strategy still makes caregiving a salient status difference in the workplace, which empirical research suggests risks opening the door to discriminatory evaluation (Ridgeway & Correll 2004). As Ridgeway & Correll (2004, p. 685) point out, “salient status characteristics [such as caretaker status] shape the implicit expectations actors form for one person’s performance in the situation compared to others.” Because caretaker status is already a devalued status characteristic (Correll et al. 2007, Ridgeway & Correll 2004), laws protecting and highlighting this status could have the unintended effect of promoting negative evaluations of workers who take leave. Of course, this does not necessarily mean that such reforms should not be enacted. Instead, this dynamic suggests that any such laws should also include strong provisions prohibiting differential treatment of or www.annualreviews.org • Law, Work, and Family

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retaliation against workers who make use of leave. A third set of proposals attempts to restructure the institution of work itself. The most common proposals are to shorten the work week to about 30 hours and to give workers more flexibility and control over their time by prohibiting mandatory overtime and allowing intermittent time off to meet family responsibilities (Gornick & Meyers 2003; Jacobs & Gerson 1998, 2004; Schultz 2000; Fraser 1994). Often these proposals are combined with other policies, such as allowing both parents to work part time during the first year of a child’s life, allowing longer family leaves, and providing more state support for child care to improve the quality of care and the salaries of care workers. For example, Gornick & Meyers’s (2003) proposal includes providing paid family leave of a moderate duration (about one year) in conjunction with state initiatives to regulate work hours and to support public provision of child care. The primary critique of proposals to restructure work practices directly is that these policies are politically infeasible in the United States at this time (Williams & Cooper 2004). Indeed, it may be, as Williams & Cooper (2004) have argued, that intermediary measures such as prohibiting family responsibilities discrimination will need to be implemented first. Nevertheless, from an institutional perspective, proposals to restructure work show promise for changing the deeply entrenched normative and practical constraints that now restrict parents’ choices around work and family. These proposals take on the institution of work directly. They do not focus on gendered identities as the basis for entitlements to protection and thus avoid reifying gender as a social category in legal doctrine. Also, unlike antidiscrimination theories under Title VII, these approaches are agnostic about whether work practices must be changed because they are, in some sense, gendered. By restructuring work directly, these legal reforms avoid taking on the difficult intermediary doctrinal questions of what


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constitutes equality and what constitutes gender discrimination. And, because institutional theories teach that work and traditional family arrangements are mutually constitutive, these legal reforms show promise for restructuring the division of labor in the family as well. To be sure, these legal theories may not be sufficient alone to overcome gendered patterns of work that are deeply engrained in cultural norms. At the very least, however, these reforms would loosen the constraints that shape parents’ choices and allow workers to choose work/family patterns other than an always-available worker and a stay-at-home spouse. Reducing the standard work week would also bolster wages and promote employment because fewer hours worked by each worker theoretically will generate more employment opportunities for all. In fact, such an experiment has already been done in the United States. In Kellogg’s Six-Hour Day, Hunnicutt (1996) documents the Kellogg Corporation’s decision in 1930 to adopt four six-hour shifts rather than three eight-hour shifts while largely maintaining wages for its workers. Kellogg adopted this shift change to promote employment during the Great Depression, but, as Hunnicutt documents in interviews with Kellogg’s former workers, the new shift revealed the joie de vivre of a life more evenly shared between work and other pursuits. With a brief hiatus for wartime production during World War II, Kellogg retained this arrangement until 1985, when it finally abandoned this schedule because, it claimed, workers wanted to work more hours. In fact, faced with growing fixed costs per worker, Kellogg threatened to move its facility elsewhere unless the union agreed to eliminated the remaining six-hour shifts, and in response the last six-hour holdouts finally gave in. Two other influences brought about the demise of the six-hour day at Kellogg. First, the social meaning of the six-hour shift changed in response to both macroeconomic pressures and changes in management approaches. When unemployment


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threatened—during the Depression and as soldiers returned from World War II—sixhour shifts were seen as sharing work, as not being a “work hog,” and as a way to ensure that everyone could earn a living. But after the war, as unemployment threats eased, working six hours came to mean shirking rather than sharing. Along these lines, Hunnicutt also documents how management ideology moved away from a “Liberation Capitalism” philosophy of turning productivity gains into more leisure for all workers (rather than unemployment for some) and toward making work, rather than community or family, the center of life. Thus, his analysis underscores that not only the structure of work but also its social meaning contribute to decisions about organizing productive activities. Second, Hunnicutt (1996) unearths a fascinating relationship between gender and time that foreshadows the second-class status of primarily female part-time workers today. Gender norms in the broader culture, which still largely hewed to the eight-hour standard day, pushed men to “work a full week” of 40 hours to meet the family breadwinner norm. For example, after World War II, economic and ideological factors worked in tandem as family wage ideology helped push working women back into the home as soldiers seeking work returned from overseas (Murray 2002). Tellingly, at the end of the sixhour era, it was primarily female workers at Kellogg who still worked six-hour shifts and who wished to maintain this schedule. Male workers, in contrast, compared themselves to eight-hour shift workers at other employers and contended that a six-hour shift was insufficient to “feed the family” and “put bread on the table” (Hunnicutt 1996). Six-hour shifts became feminized, characterized by both male workers and management as for women who were not family breadwinners, who needed the extra time to attend to house and home, or who “were not up to full-time work.” Simultaneously, time outside work was feminized, and pursuits such as family and community activities were trivialized in comparison

to work (Hunnicutt 1996). Like Schor (1992), Hunnicutt interprets the demise of Kellogg’s six-hour day as reflecting the American drive for consumption, but clearly gendered ideology plays a role here as well. One might also ask whether in a different organizational environment in which men at other workplaces also worked a six-hour shift such a feminization and rejection of shorter hours would have been as easy to accomplish. Hunnicutt’s (1996) historical analysis reveals that the 40-hour work week is not the only way to organize productive processes in a capitalist economy. Hunnicutt’s analysis also shows, however, how institutionalizing the eight-hour day—in the Fair Labor Standards Act as well as in common work practices in other firms—undermined Kellogg’s experiment, suggesting that changes in work culture require widespread institutional reform rather than piecemeal voluntary change. His study teaches that making different trade-offs between time and money will likely require developing a counter-ideology to the idea that work is an all-important relative to family and community pursuits. Finally, Hunnicutt’s analysis shows how institutionalized cultural norms that men should be breadwinners and women should be caretakers operate in tandem with work ideology. Indeed, empirical evidence suggests that the family wage ideal continues to affect how employers evaluate the competence and potential of workers and even how workers understand their options in the workplace (Albiston 2005a, Correll et al. 2007). Comparative research also suggests that these cultural norms may limit how much policy reforms can promote egalitarian sharing of family responsibilities. For example, Gornick & Meyers (2003) found that mean daily hours of child care spent in the home by men and women remained largely static across various policy regimes, even though more generous family policies were associated with other desirable outcomes for families. These data suggest that legal reforms that take into account cultural institutions, such as the family wage norm, may be www.annualreviews.org • Law, Work, and Family

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more successful than those that do not. Moving toward men’s equal participation in child care may require ensuring paid leave at a high rate of wage replacement so that men can both provide care and fulfill the breadwinner role. In addition, leave entitlements that are personal, rather than family, entitlements (and therefore use it or lose it in nature) may be more likely to encourage men to participate in caregiving (Gornick & Meyers 2003). All the same, both work norms and gender norms are changing. Men are more engaged in care work, and increasingly they are expected to be more engaged. At the same time, critics are challenging the all-consuming nature of work (Hochschild 1997; Hunnicutt 1988, 1996; Schor 1992). Although empirical research makes clear that institutions help to maintain old patterns of work and family organization, reformers should not discount law’s normative force in encouraging and legitimating changes in both work and family. As more men take leave, as working women continue to return to work after having a baby, and as family responsibilities become more visible at work, treating workers poorly because they attend to family responsibilities may come to be seen as inappropriate and wrong. Legal policies can either enable or constrain this process of change. Successful reform requires careful attention to these institutional processes so that work/family policies can complement, rather than hinder, the social change that is already underway.


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CONCLUSION The social science research about law, work, and family offers both encouragement and a cautionary tale. On the one hand, legal mandates for family friendly policies appear to have produced many positive effects. More workers have access to leave. More organizations are adopting family friendly policies in response to legal mandates and to growing normative pressure from their organizational environments. Employers report that leave mandates are relatively costless, and em418

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ployers do not seem to be shifting the cost of leave mandates to women in the form of lower wages or less employment. From a policy perspective, these are all desirable outcomes. On the other hand, from a more sociological perspective that focuses on social processes and institutions, a cautionary tale emerges. When one looks within organizations, power still matters. More powerful workers have more options for managing work and family and are more likely to use the options they have, although legal protections seem to mitigate this dynamic. Institutionalized work practices also matter; workers who violate time norms by taking leave pay a price in terms of lower wages or poor performance evaluations. In addition, cultural norms about gender, work, and family still matter. Despite gender-neutral legal reforms, men are generally less likely to take leave than women. Employers continue to expect gendered leavetaking behavior among their employees. Experimental studies show that workers who violate those gendered expectations are penalized, independent of their actual performance. In short, formal legal reform does not necessarily produce meaningful change on the ground. Institutional processes create resistance to legal reforms, and legal rights have difficulty penetrating deeply entrenched practices and assumptions around work, gender, and family. It is tempting to write off such social and cultural institutions as beyond the reach of law and simply accept as inevitable the limitations these institutions place on reform. An alternative interpretation is that these findings demand future research to investigate variation in these effects and the conditions under which they hold true. One important question is whether policies that take into account cultural norms and organizational practices are less subject to resistance than those that do not. For example, paid family leave may be more likely than unpaid leave to encourage men to take leave because paid leave does not force men to choose between caring for family members and being the family


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breadwinner. Rather than treating resistance to reforms as invariable and static, researchers should focus on the conditions under which institutional processes hinder or bolster legal reforms. From a policy perspective, the social science research raises important caveats about how legal institutions should address the work/family conflict. For example, empirical evidence about organizations’ response to law indicate that courts should be deeply skeptical of how organizations implement work/family policies. Rather than focusing only on formal policy statements, courts should consider patterns of actual use of leave and ask how organizations respond to workers who request and use family leave. In addition, the social psychological research indicates that courts should adopt a more sophisticated understanding of discrimination, one that takes into account the dual contributions of gender and caretaker characteristics to workplace dynamics. This approach extends existing theories of discrimination based on stereotyping

and may encourage a more social constructivist understanding of discriminatory decision making (Krieger 2004). This may very well be a transitional moment for the institutions of work and family. As institutional foundations erode, social change is possible, but current institutional arrangements will also affect what direction that change takes. Just as gendered ideologies contributed to the organization of capitalist production during the transition to modernity, gendered conceptions of work and family are likely to shape the institutional forms to come. Law will also help construct these new social forms. Legislation can open up new choices regarding work and family, but the research reviewed here suggests that laws can also have unintended consequences that reinforce gender inequality if institutions are not taken into account. Understanding the other institutional processes at work will help make law’s contribution more relevant to and effective in the sociological processes that shape work and family.


ACKNOWLEDGMENTS I wish to thank Kathryn Abrams, Shelley Correll, Lauren Edelman, Herma Hill Kay, Erin Kelly, Kristin Luker, Melissa Murray, and Joan Williams for our terrific conversations about work/family research and their helpful comments on drafts of this article. I also wish to thank Marc Melnick for his support and encouragement while I wrote this review. Finally, many thanks to Lisa Montague for her able research assistance on this project.

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Lovell SE, Kahn AS, Anton J, Davidson A, Dowling E, et al. 1999. Does gender affect the link between organizational citizenship behavior and performance evaluation? Sex Roles 41:469–78 Lyness KS, Thompson CA, Francesco AM, Judiesch MK. 1999. Work and pregnancy: individual and organizational factors influencing organization commitment, timing of maternity leave, and return to work. Sex Roles 41:485–508 MacKinnon C. 1987. Feminism Unmodified: Discourses on Life and Law. Cambridge, MA: Harvard Univ. Press. 332 pp. MacKinnon CA. 1989. Toward a Feminist Theory of the State. Cambridge, MA: Harvard Univ. Press. 330 pp. Malin MH. 1993/1994. Fathers and parental leave. Texas Law Rev. 72:1047–95 Martin G, Kats V. 2003. Families and work in transition in 12 countries, 1980–2001. Mon. Labor Rev. 126:3–31 Mattingly DJ. 2001. The home and the world: domestic service and international networks of caring labor. Ann. Assoc. Am. Geogr. 91:370–86 Meyer JW, Rowan B. 1977. Institutionalized organizations: formal structure as myth and ceremony. Am. J. Sociol. 83:340–63 Milliken FJ, Martins LL, Morgan H. 1998. Explaining organizational responsiveness to workfamily issues: the role of human resource executives as issue interpreters. Acad. Manag. J. 41:580–92 Minow M. 1987. The Supreme Court 1986 term, foreword: justice engendered. Harvard Law Rev. 101:10–95 Murray M. 2002. Whatever happened to G.I. Jane: citizenship, gender and social policy in the postwar era. Mich. J. Gender Law 9:91–129 Okin SM. 1989. Justice, Gender and the Family. New York: Basic Books. 216 pp. Osterman P. 1995. Work/family programs and the employment relationship. Adm. Sci. Q. 40:681–700 Pateman C. 1988. The Sexual Contract. Stanford, CA: Stanford Univ. Press. 276 pp. Perlow LA. 1995. Putting the work back into work/family. Group Organ. Manag. 20:227– 39 ˜ RS. 2000. Migrant Filipina domestic workers and the international division of reproPerrenas ductive labor. Gender Soc. 14:560–80 Pleck JH. 1993. Are “family-supportive” employer policies relevant to men? In Men, Work, and Family, ed. JC Hood, pp. 217–37. London: Sage Phillips v. Martin Marietta Corporation, 400 U.S. 542 (1971) Ridgeway CL, Correll SJ. 2004. Motherhood as a status characteristic. J. Soc. Issues 60:683– 700 Ridgeway CL, Smith-Lovin L. 1999. The gender system and interaction. Annu. Rev. Sociol. 25:191–216 Risman BJ. 1998. Gender Vertigo. New Haven, CT: Yale Univ. Press. 208 pp. Ruhm CJ. 1997. Policy watch: the Family and Medical Leave Act. J. Econ. Perspect. 11:175–86 Ruhm CJ. 1998. The economic consequences of parental leave mandates: lessons from Europe. Q. J. Econ. 113:285–317 Ruhm CJ. 2000. Parental leave and child health. J. Health Econ. 19:931–60 Sandberg JC. 1999. The effects of family obligations and workplace resources on men’s and women’s use of family leaves. Res. Sociol. Work 7:261–81 Scandura TA, Lankau MJ. 1997. Relationships of gender, family responsibility, and flexible work hours to organizational commitment and job satisfaction. J. Organ. Behav. 18:377– 91


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Williams JC, Cooper HC. 2004. The public policy of motherhood. J. Soc. Issues 60:849–65 Williams JC, Segal N. 2003. Beyond the maternal wall: relief for family caregivers who are discriminated against on the job. Harvard Women’s Law J. 26:77–162 Williams WW. 1984/1985. Equality’s riddle: pregnancy and the equal treatment/special treatment debate. N. Y. Univ. Rev. Law Soc. Change 13:325–80

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Implicit Social Cognition and Law Kristin A. Lane,1,2 Jerry Kang,3 and Mahzarin R. Banaji2 1

Department of Psychology, Bard College, Annandale-on-Hudson, New York 12504; email: [email protected]

2

Department of Psychology, Harvard University, Cambridge, Massachusetts 02138; email: mahzarin [email protected]

3

School of Law, University of California, Los Angeles, California 90095; email: [email protected]


Key Words

First published online as a Review in Advance on September 7, 2007

psychology and law, unconscious cognition, implicit bias, intent, discrimination, behavioral realism, equal protection, Title VII


Abstract Experimental psychology has provided substantial evidence that the human mind can operate in automatic, uncontrollable fashion as well as without conscious awareness of its workings and the sources of influence on it. With methods available to measure implicit or less conscious aspects of social cognition, especially group-specific attitudes and stereotypes, several aspects of the nature of implicit social cognition are now regarded as well established. Such results primarily include the pervasive and robust implicit favoritism for one’s own groups and socially dominant groups, the dissociation between implicit and explicit social cognition, the ability of both to predict behavior, the greater impact of the former on certain discriminatory behaviors, and the sensitivity of seemingly implicit thoughts, feelings, and behaviors to change in response to situational features and experience. Legal scholarship and judicial opinions are beginning to consider how the law can and should adapt to such findings, in particular how they call into question existing assumptions regarding the notion of intent, and their relevance for antidiscrimination law.

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[T]o be as intelligent as we can is a moral obligation—that intelligence is one of the talents for the use of which we shall be called to account—that if we haven’t exhausted every opportunity to know whether what we are doing is right, it will be no excuse for us to say that we meant well. John Erskine, American Character and Other Essays, 1915


In the early years of the twentieth century, John Erskine, American educator and author, worried about a lack of faith in intelligence as a virtue, and contrasted it specifically with the elevated status accorded to goodness as a virtue. To be sure, Erskine was not using the term intelligence to mean a narrowly specified mental faculty of the sort that nineteenth, and even twentieth, century psychologists called intelligence. Rather he was referring to a broad set of competencies, skills, and knowledge. The research reviewed here is offered in an Erskinian spirit because, more now than ever, the mind sciences suggest unappealing truths about the nature of the brain and mind that originate from its bounded rationality and largely unconscious operation. Despite the commonly held belief that the opposite is true (i.e., that humans are savage rationalists and that consciousness is the default mental state), we have incontrovertible evidence that thoughts, feelings, and actions are shaped by factors residing largely outside conscious awareness, control, and intention (see Carney & Banaji 2007). Such evidence and their implications for human nature and human experience urge that we be newly intelligent about various matters of law. Experiments from social cognition—a field concerned with the content and mechanisms of beliefs and preferences about oneself, other social beings, and social groups—are this review’s mainstay, with a focus on ordinary beliefs and preferences that operate without conscious intention, awareness, or control. We present the evidence first, urging readers to heed Erskine’s message 428

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when the data reveal unappealing reflections of human behavior, including our own.

THE SCIENCE Imagine sitting at a computer. Your job appears simple: As words such as happy and angry appear sequentially on the screen, indicate whether each is good (happy is good) or bad (angry is bad) by pressing marked keys on a keyboard. But more than the words appear on the screen. In fact, each word to be judged as good or bad is preceded by a black or white face (i.e., individuals with origins in Africa or Europe) that you see but do not respond to. You merely ignore the face and respond to the words. First presented in a psychology lab over a dozen years ago, this task represents the basic method of sequential or repetition priming, designed to measure indirectly less conscious racial attitudes (Fazio et al. 1995). The computer records the time taken to offer the easy answer that happy represents a positive or good concept and that angry represents a negative or bad concept. To the psychologists who performed this study, the data of interest were the speed to respond (with some attention to accuracy of responses) to each word. Data were sorted into four separate types: Trials in which good words like happy were preceded by (a) a white face, (b) a black face; and trials in which bad words like angry were preceded by (c) a white face, (d ) a black face. From the many studies that have used this procedure, we know that speed to judge that happy is good is noticeably faster when that word is preceded by the mere flash of a white (rather than a black) face. Likewise, it is mentally easier to respond that angry is bad when it is preceded by the brief presence of a black rather than white face. This differential ease of pairing white+good and black+bad is taken as an indirect measure of the strength of automatic relative preference for the two social groups. If the interest is in knowing a person’s racial attitude, why use such an odd measure? Why not merely ask for reports of


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feelings toward black and white Americans? The simple answer is that decades of research on the nature of perception, attention, memory, and decision making demonstrate that indirect measures that bypass the mind’s access to conscious cognition tell us something interesting about mental states and the behaviors they spawn. Specifically, the virtue of such methods is that they tell us something different from self-reported survey-type responses. Moreover, they may potentially predict meaningful behaviors of the sort that are central to any system of law, e.g., behaviors that help and harm. For instance, the strength of black+bad and white+good associations in white subjects predicted the quality of their interaction with black experimenters (Fazio et al. 1995). Participants with stronger antiblack bias on the computerized test were less likely to be friendly toward the black experimenter than those with more positive scores. Moreover, such participants were more likely to report that blacks, compared with whites, had greater responsibility for the civil unrest, riots, and violence in Los Angeles following the 1992 acquittal of police officers in the case involving Rodney King. Interestingly, the same participants’ selfreported attitudes toward the groups on a traditional survey were uncorrelated with their friendliness; in other words, these traditionally measured expressions of attitude were not as predictive of behavior. This experiment set the stage for the subsequent explosion of work on implicit social cognition—the main results of Fazio and colleagues (1995) would be replicated many times with differing measures of implicit attitudes and stereotypes. This body of research captured the essence of a new generation of discoveries about automatic, nonconscious, or implicit preferences and beliefs, primarily that they (a) are both pervasive (large numbers of individuals show evidence of them) and large, statistically speaking; (b) diverge from the consciously reported preferences and beliefs of the same individual; (c) appear to predict behavior, even consequential behavior such as doctors’ treatment

of patients (Green et al. 2007); and (d ) despite their seemingly uncontrollable nature, are malleable. Two concepts, attitude (or preference) and stereotype (or belief ), are central to the study of implicit social cognition and its application to the law. “Implicit attitudes are introspectively unidentified (or inaccurately identified) traces of past experience that mediate favorable or unfavorable feeling, thought, or action toward social objects” (Greenwald & Banaji 1995, p. 8). For example, an object is likely to be preferred as a result of prior exposure to it, even without awareness that such exposure causes the increase in preference (Zajonc 1980). Likewise, “Implicit stereotypes are the introspectively unidentified (or inaccurately identified) traces of past experience that mediate attributions of qualities to members of a social category” (Greenwald & Banaji 1995, p. 15). An implicit stereotype would be the (mistaken) identification that Dave Sebastian is famous, but Diane Sebastian is not (Banaji & Greenwald 1995), based on the belief (a correct belief, in this case) that men are more likely to be famous than women. Such preferences (attitudes) as well as the ascription of specific qualities (stereotypes) are jointly referred to here as implicit social cognitions (ISCs), and the biases observed in studying them are referred to as implicit biases. As an example of how the science of implicit social cognition provides an alternate lens for viewing human behavior, consider two police shootings in the outer boroughs of New York City. Both Amadou Diallo (in 1999) and Michael Bell (in 2006) were unarmed black men, mistakenly shot and killed by police officers. Of central relevance is the probability of the occurrence of such a response had the victims been white rather than black. In the earlier case, officers reported mistaking Diallo’s reach into his pocket as an attempt to get a gun. During the opening statements in the criminal trial of the four police officers— who were all acquitted—the prosecution argued that “when they got out of the car in www.annualreviews.org • Implicit Social Cognition and Law

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front of Amadou Diallo’s home in the early morning of February 4, they made the conscious decision to shoot him.” Data and theory from implicit social cognition provide a different interpretation of these incidents, namely that the officers acted without conscious racial animus but were still influenced by the victims’ race. No satisfactory understanding of the role of implicit bias in the police officers’ behavior can be obtained by analyzing single lethal events, for we cannot know whether the same officers in an identical universe but for the victim’s race would have acted differently. The laboratory offers a way to replicate the essential conditions of such situations and to examine patterns of behavior that arise in systematic ways. Several laboratories created controlled environments analogous to the police officers’ situation. In one such study, black and white men appeared one at a time on a computer screen, holding either a gun or a harmless object (e.g., a soda can) (Correll et al. 2002). If the target held a gun, participants were instructed to press one key to shoot; if it was a harmless object, they were told to press another key for don’t shoot. The data revealed systematic racial bias in shooting, with faster and more accurate responses to unarmed white targets and armed black targets compared with armed white targets and unarmed black targets. Neither participants’ endorsement of racial stereotypes nor their reports of feelings toward blacks predicted shooter bias. Knowledge of cultural stereotypes, however, did predict shooter bias: Those with greater awareness of the stereotype of African Americans as hostile were more likely to mistakenly shoot unarmed black suspects and not shoot armed white suspects (see Greenwald et al. 2003b, Payne 2001, Plant & Peruche 2005 for similar results). In light of these data, the New York City shootings can be explained without reliance on explicit bias. Simple exposure to the stereotype that blacks are hostile, even without endorsement of that stereotype, may be sufficient to create bias that alters split-second


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decisions and does so without conscious awareness. Among the criticisms of such studies is that they reflect a reality far from that of the professionals who rely on their gut to make the right decisions in their real jobs—college students, after all, don’t spend their hours in target practice. To test a different group of professionals, those who take an oath to serve the sick whether rich or poor, we studied the behavior of physicians making assessments of patients. Green and colleagues (2007) measured implicit bias among emergency room physicians. Physicians recommended treatment based on vignettes that depicted patients with myocardial infarction who differed solely on race. Although doctors’ reports of racial attitudes and beliefs did not predict their proposed treatment, their ISCs did: Physicians with stronger implicit antiblack attitudes and stereotypes were less likely to prescribe thrombolysis (a blood-thinning procedure) for African Americans compared with white Americans with identical medical profiles. Explicit race attitudes, held with complete sincerity and showing no race bias, did not predict medical recommendations. Consciously held attitudes and stereotypes are also important predictors of behavior. They are simply not the only ones to contend with as we understand human behavior and its vicissitudes. We can study ISCs with physiological techniques that measure cardiovascular responses (e.g., Blascovich et al. 2001) or micro facial movements (e.g., Vanman et al. 2004), neuroimaging techniques that measure brain activation (e.g., Mitchell et al. 2006, Phelps et al. 2000), and those based on response time, such as the priming task described earlier (Perdue et al. 1990), to measure automatic attitudes and beliefs. This last class has thus far been the most reliable and widely used for measuring individual differences in ISCs and, consequently, represents the bulk of the work reviewed here. The logic underlying such measures is relatively straightforward. First, a very simple definition of an attitude is assumed:


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“Essentially, then, an attitude can be viewed as an association between a given object and a given evaluative category” (Fazio et al. 1982, p. 341). Second, response speed to varying stimuli measures the association’s strength. In the priming task described earlier, those with antiblack feelings were presumed to have a relatively stronger association between the social category black and the evaluative category bad (compared with the categories white and good). The difference in this response time is presumed to reflect a person’s attitude toward blacks (see Wittenbrink 2007 for further information on the priming task). Other measures involve similar logic but differ in implementation. The Implicit Association Test (IAT; Greenwald et al. 1998), for example, requires participants to rapidly classify individual stimuli into one of four distinct categories using only two responses. As with priming, the assumption is that responses will be facilitated—and thus faster and more accurate—when categories that are closely associated are paired than when they are not paired (see Lane et al. 2007, Nosek et al. 2006 for further information on the IAT). For example, a person with a negative implicit attitude toward blacks would be expected to go more quickly when black and bad share one key and white and good the other than when the pairings of good and bad are switched (readers may try an IAT at http://www.projectimplicit.com). These measures—priming and the IAT—are the most commonly used tasks to measure ISCs and are emphasized in our review, although newer tasks, such as the Go/No-Go Association Task (Nosek & Banaji 2001), the Evaluative Movement Assessment (Brendl et al. 2005), the extrinsic affective Simon task (De Houwer 2003), and the affect misattribution procedure (Payne et al. 2005), have been used, and likely more will be developed. Other tasks measure ISCs without measuring response speed or physiological response. Completion of word fragments may reveal mentally active stereotypes [e.g., OOR might be “POOR” when social class is on one’s

mind, but “DOOR” if it is not (e.g., Sinclair & Kunda, 1999)]. Additionally, the extent to which behaviors completed by black actors are described in abstract terms (von Hippel et al. 1997) or to which stereotypeinconsistent behaviors are explained rather than just described (Sekaquaptewa et al. 2003) is used as a measure of implicit stereotypes. This report draws four key conclusions about the current state of knowledge of ISCs: (a) Measures that assess ISCs provide distinct assessments from self-reported or explicit versions; (b) preferences for ingroups as well as socially valued groups are widespread; (c) ISCs relate systematically to behavior; and (d ) ISCs are flexible and respond to experience and environmental cues. The practical and ethical implications of such findings have already been explored in preliminary ways in various domains [Banaji et al. 2003, Banaji & Bhaskar 2000, Bazerman et al. 2005; see also the 2006 California Law Review symposium on behavioral realism (Bayern 2006)]. In this review, we focus on how these scientific findings have influenced legal scholarship and judicial opinions thus far.

Implicit Social Cognition is Distinct from Explicit Social Cognition ISCs often reveal different levels of intensity and patterns of attitudes and stereotypes than those provided by explicit, self-report measures. Evidence suggests that implicit and explicit measures provide distinct, although sometimes related, assessments of biases. For example, although people tend to report only slight preference for white Americans over black Americans, implicit measures show a quite different tendency: On several implicit measures, strong and consistent preferences emerge for white Americans relative to black Americans (e.g., Nosek et al. 2002, 2007). Such data, in conjunction with small correlations between explicit and implicit measures of the same attitude or stereotype, www.annualreviews.org • Implicit Social Cognition and Law

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support the idea that the two systems of implicit and explicit social cognition exist as separate mental spheres with communication channels that are present but don’t always work. Relationships between implicit and explicit measures vary across study, target group, and participant characteristics (Bosson et al. 2000, de Jong et al. 2003, Egloff & Schmukle 2002, Greenwald et al. 1998, Karpinski & Hilton 2001, Ottaway et al. 2001, Rudman & Kilianski 2000). A meta-analysis—a comprehensive quantitative analysis of experiments on a particular topic allowing more general conclusions than any single study—of 126 correlations between implicit (assessed with the IAT) and explicit attitudes revealed considerable variability in the strength of the relationship between implicit and explicit cognitions, although on average they were related to one another, mean population r = 0.24 (Hofmann et al. 2005). Statistical analyses of responses to both measures further support the idea that implicit and explicit measures tap separate processes. A construct represents an abstract concept that, although measurable, cannot be directly observed, such as self-esteem, IQ, or in this case implicit and explicit social cognitions. Do implicit and explicit measures provide assessments of a single or multiple constructs? A statistical procedure, confirmatory factor analysis (CFA), tests whether measures tap the same underlying construct (in which case they would, in CFA’s language, load onto a single factor) or multiple constructs (in which case they would load onto multiple factors). Consistent with the notion that implicit and explicit attitudes are distinct (Greenwald & Banaji 1995, Wilson et al. 2000), implicit and explicit attitudes are best fit as separate factors, even when they are correlated. For example, implicit self-esteem and gender identity each loaded onto a separate factor than their explicit counterparts (Greenwald & Farnham 2000). Implicit racial attitudes (measured by the IAT and priming) also represented a separate construct from explicit racial attitudes


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(Cunningham et al. 2001). This pattern is more general: Implicit and explicit attitudes were best represented by two factors for 56 out of 57 different attitude objects (Nosek 2005). Evidence from the neural basis of social cognition converges with that from behavioral tests. The focus has been on subcortical and cortical structures, with the loose assumption that implicit evaluations that are less controllable should map onto activations in the former and processes that rely on deliberative thought should engage the latter. The amygdala is a subcortical brain structure known to be reliably engaged in processing emotional (especially fear-relevant) and novel stimuli (Phelps 2006). When faces were presented so rapidly as to be under the limen or subliminal threshold (30 milliseconds, or 3/100th second), black faces elicited greater amygdala activation than did white faces. When faces were exposed long enough to be visible to participants (525 milliseconds) no such difference in amygdala activation was observed, and instead greater activation was seen in regions assumed to be associated with regulating thoughts and exerting control (the right ventrolateral prefrontal cortex, right dorsolateral prefrontal cortex, and anterior cingulate). Moreover, amygdala activation correlated with the IAT measure of racial attitudes when the faces were presented subliminally, but not so when presented supraliminally, indicating that the IAT reflects more automatic rather than controlled reactions to social groups (Cunningham et al. 2004a). Most experts (these authors included) do not believe that measures of implicit social cognition reflect the “true” attitude any more than do measures of explicit social cognition such as questionnaire responses (Fazio & Olson 2003, Lane et al. 2007). Implicit and explicit measures appear to tap separate constructs that operate differently: They both predict behavior (which one predicts better appears to depend on the person and situation). Privileging one over the other would be scientifically misguided.

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Implicit Social Cognitions are Robust and Pervasive One of the most consistent findings from the large literature on intergroup relations is the fact of ingroup favoritism (Tajfel & Turner 1986). This tendency is so strong that people report liking ingroups even when they are randomly assigned to them (Cadinu & Rothbart 1996, Gaertner et al. 1989, Tajfel et al. 1971). This pattern also emerges on implicit measures: After random assignment to the group “Quan” or “Xanthie,” participants demonstrated implicit preference for their assigned group (Ashburn-Nardo et al. 2001). It is mirrored on measures of implicit preference for known social groups. For example, both Japanese Americans and Korean Americans preferred their own ethnic group relative to the other (Greenwald et al. 1998), as ¨ did East and West Germans (Kuhnen et al. 2001). Positive implicit attitudes toward and stereotypes about members of socially privileged groups are also pervasive. At the website mentioned above (http://www. projectimplicit.com), visitors try one (or more) IATs and receive feedback about the magnitude and direction of their implicit attitude or stereotype. With over 5 million tests completed, this is the largest repository of data available to look at variability and frequency of ISCs (see Nosek et al. 2007 for a review). Of course, visits to the website are optional, and thus the data do not reflect a representative sample of the population. Even with this caveat, the data provide a unique look at ISCs and allow comparisons across self-reported demographic characteristics (e.g., age, gender, race/ethnicity, region, political orientation). Table 1 depicts results from 17 IATs available at the website (Nosek et al. 2007). Two features of the data are readily apparent. First, implicit preferences in either direction, away from the neutral position of no bias, were typical. On average, participants preferred socially privileged groups (young over old, white over

black, light-skinned people over dark-skinned people, other people over Arab Muslim, abled people over disabled people, thin people over obese people, and straight people over gay people). Implicit stereotypes were also consistent with widespread cultural beliefs. For example, most participants (72%) associated the concepts male with science and female with humanities. Similarly, participants found it easier to categorize white, rather than Asian or Native American, faces with American, reflecting an implicit stereotype that “American equals white” (Devos & Banaji 2005; T. Devos, B.A. Nosek & M.R. Banaji, unpublished manuscript). Additionally, participants exhibited stereotypes reflecting associations between blacks and weapons (compared with whites and harmless objects), and between the social group male and career (compared with female and family). Explicit reports of ingroup preference and stereotypes were smaller in magnitude in white Americans than those observed on implicit measures. Second, the standard deviations shown in Table 1 reveal that despite the prevalence of implicit bias, there was substantial variability in the extent to which people showed such bias—some people were much higher than the average (reflecting strong bias), but others were lower than the average (reflecting minimal bias or even biases in the opposite direction than the majority of test takers). For example, although 68% of test takers implicitly preferred white compared with black, a nontrivial group—14%—showed the opposite, and preferred black over white, and 18% showed no preference. Such variability suggests that additional factors may moderate an individual’s level of implicit bias. Group membership attenuated implicit bias. Although people of European, Asian, and Hispanic descent implicitly preferred white over black, black participants did not, on average, show ingroup preference; equal numbers of black participants preferred the outgroup white as preferred the ingroup black. The pattern of stronger ingroup preference among members of socially privileged groups is predicted www.annualreviews.org • Implicit Social Cognition and Law

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.79

.22

1.23

1.40 −.05

1.14

.98

.85

.56

1.05

−.11

−.27

−.16

.88

.74

1.07

−.39

.40

.87

.88

1.00

1.25

Black Hispanic White

Implicit

By Ethnicity

1.06

.88

.51

.16

.86

−.25

−.37

−.27

.76

.66

.98

−.30

.19

.40

.49

.56

1.17

Racial

Multi-

1.03

.93

.61

.30

.89

−.25

−.39

−.24

.79

.70

.93

−.36

.00

.64

.66

.70

1.25

Other

from Tables 1, 2, 3, and 4 of Nosek et al. (2007). scores are mean D scores (Greenwald et al. 2003a). d = Cohen’s d effect size, which is a standardized measure of the magnitude of an effect; the following guidelines indicate the size of the effect: small d = 0.2, medium

.39

.37

.41

.50

.37

−.16

−.27

−.15

.83

.74

1.05

−.34

.33

.73

.73

.86

1.23

d

Implicit

By Gender

d = 0.5, large d = 0.8 (Cohen, 1988). comparison category for George Bush varied (Clinton, Reagan, Nixon, Kennedy, FDR, Lincoln, Jefferson, or a collection of recent presidents).

b IAT

a Adapted

.23

White American/+American/ Native American/Foreign

AmericanNative .26

.37

White+Harmless Objects/Black+Weapons

RaceWeapons

Stereotypes

.56

Election 2000

−.09

Election 2004

George Bush+Good/ Al Gore+Bad

Bush+Good/Other President+Badc

Presidential

.47

.43

.51

Thin+Good/Obese+Bad

Weight

.35

.45

−.14

Straight People+Good/Gay People+Bad

Sexuality

.44

George Bush+Good/ John Kerry+Bad

Abled+Good/Disabled+Bad

Disability

−.15

.42

.45

.45

Other Religions + Good/Jewish+Bad

Religion

.14

.33

.42

Other Peoples+Good/Arab Muslims+Bad

ArabMuslim

.41

.43

.39

.35

White+Good/Black+Bad

Child-race

.30

.37

.49

SD

−.07

Light Skin+Good/Dark Skin+Bad

White+Good/Black+Bad

Race

M

Explicit

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Young+Good/Old+Bad

Age

Attitude

stronger associations between

Overall

ARI

Higher numbers represent

Implicitb

Attitudes and stereotypes for 17 topics among visitors to a public website: overall sample (implicit and explicit attitudes and stereotypes), by gender (implicit), and by

ethnicity (implicit)a

Table 1

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by system justification theory ( Jost & Banaji 1994), which suggests that the tendency to maintain the status quo will lead to reduced ingroup preference among members of disadvantaged groups (see Jost et al. 2004 for a review of system-justifying tendencies on implicit and explicit measures). Although the tendency toward ingroup liking appears strong, lab studies also demonstrate that a group’s status moderates the magnitude of implicit ingroup preference. Predominant cultural evaluations attenuate this tendency toward ingroup preference (see Jost et al. 2004 for a review). As in the web data summarized in Table 1, although most white Americans showed strong preference for white over black on the IAT, black Americans, on average, did not prefer either group (Ashburn-Nardo et al. 2003, Livingston 2002, Nosek et al. 2007). Similarly, weight and socioeconomic status (Rudman et al. 2002), as well as university ( Jost et al. 2002) and college dorm status (Lane et al. 2005) moderated the strength of ingroup liking, such that people from higherstatus groups were more likely to exhibit implicit ingroup preference. In other words, the elderly, the poor, and those associated with less prestigious institutions all showed weaker preference for their own group on implicit measures. Although the tendency toward ingroup preference is robust, a group’s status in the larger social hierarchy is a decisive influence on the implicit biases that are observed. Members of privileged groups overwhelmingly show ingroup preference (70% and up is not a rare finding), whereas this tendency is subdued among members of socially derogated groups who internalize the broader cultural evaluation of their group. The elderly, for example, show no ingroup-favoring implicit attitudes; gays and lesbians show weaker ingroup preference than do heterosexual participants (Nosek et al. 2007); and blacks in the United States and in South Africa show substantially weaker ingroup preference than do whites in those nations (Shutts et al. 2007).

A claim has been made that ISCs, in particular preferences for social groups, reflect not a person’s own attitude but rather knowledge that the person has acquired about the attitude present in the larger culture (Karpinski & Hilton 2001). Of many possible responses to this claim, we offer three observations that suggest that ISCs do reflect the state of an individual’s mind. First, implicit preferences emerge even without cultural knowledge about the group: Simply being told you are a Quan is sufficient to generate implicit preference for Quans (Ashburn-Nardo et al. 2001). If implicit biases solely reflect knowledge of cultural hierarchies and stereotypes that exist separately from individual social cognition, preferences favoring these nominal groups should not appear. Second, as reviewed more extensively below, the magnitude of implicit bias predicts behavior (Poehlman et al. 2007); if implicit biases reflect disjointed cultural knowledge, they should not be linked to a specific individual’s discriminatory behavior. Finally, we note that it is often explicit, rather than implicit, attitudes that systematically relate to reports of cultural knowledge (Nosek & Hansen 2007). The culture and the person are intricately intertwined, and it would be a mistake to assume that signals of ingroup-favoring attitudes, because their content may have its origins in culturally shared knowledge, are hence not a part of the individual (Banaji 2001). Just as it would make little sense to ask what makes a rectangle a rectangle, its length or its width, so too would disambiguating person from culture in any simplistic way be nonsensical.

Implicit Social Cognitions Predict Behavior The nature of ISCs should be of interest to the law to the extent that they predict behavior. Before such an exercise is initiated, it is important to know if implicit measures differentiate groups known to differ a priori. Indeed, in several domains, the IAT detects expected group differences. Several known-groups www.annualreviews.org • Implicit Social Cognition and Law

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validations exist from the clinical and social domains. Although both criminals high and low in psychopathy [characterized by “grandiosity, callousness, manipulation, lack of empathy, and lack of guilt or remorse” (Snowden et al. 2004, p. 621)] implicitly preferred the concept “peaceful” compared with “violent,” this preference was muted among murderers diagnosed as psychopathic (Gray et al. 2003, Snowden et al. 2004); that is, they exhibited lower implicit dislike for violence than did nonpsychopathic murderers. Likewise, clinically identified pedophile criminals implicitly associated images of children with sex, whereas nonpedophile criminals associated adult images with sex; 78% of pedophiles in this study were correctly classified by the task (Gray et al. 2005). An implicit measure clearly distinguished between subjects who had phobias associated with either snakes or spiders (Teachman & Woody 2003) and between subjects who were smokers and nonsmokers (Swanson et al. 2001). The IAT also detected stronger self+injury associations in self-injurers, as well as suicide ideation in those who are at risk (Nock & Banaji 2007a, Nock & Banaji 2007b). It also efficiently demarcates social groups. Men and women are distinguishable with near-100% accuracy on a gender identity measure. Other tests also detect group differences such as Japanese versus Korean, black versus white, and gay versus straight, among others (Nosek et al. 2007). Importantly, implicit bias also predicts individual discriminatory behaviors. In addition to predicting medical interns’ treatment decisions (Green et al. 2007), people with greater implicit negativity toward blacks were less likely to anticipate befriending an African American and tended to sit further away from an African American partner. Those who more strongly associated black with the concept “physical” (compared with the concept “mental”) were also more likely to predict that an African American partner would perform poorly on a joint academic task and rate an individual African American partner in more stereotypic fashion (Amodio & Devine 2006).


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A priming measure assessing attitudes toward the overweight also predicted how far participants placed their chair from an overweight woman (Bessenoff & Sherman 2000). Strikingly, white students’ implicit attitudes toward blacks, measured at the beginning of the semester, predicted the longevity of their relationship with a randomly assigned black roommate. Those who showed the most implicit negativity toward blacks at the school year’s start were more likely not to be living with their black roommate at the academic year’s end (Towles-Schwen & Fazio 2003). These results sit in line with laboratory findings that people with more negative implicit racial attitudes were viewed as less friendly by confederates or observers unaware of their racial attitudes (Dovidio et al. 2002, Fazio et al. 1995, McConnell & Leibold 2001). Nonverbal behaviors such as facial expressions, eye contact, and body posture have been shown to leak implicit attitudes. Those who possess stronger negative attitudes toward a stigmatized group tend to exhibit more negative behaviors (e.g., blinking) and less positive behaviors (e.g., smiling) when interacting with a member of that group (Lemm 2006, McConnell & Leibold 2001). Further, ISCs relate to judgments of identical actions or objective states, depending on the target’s group membership. People with higher implicit bias judged ambiguous actions by a black (Rudman & Lee 2002) or Turkish (Gawronski et al. 2003) target more negatively. Even the same facial expression appeared different depending on implicit bias. More negative implicit racial attitudes were related to a lowered threshold for detecting hostility on black, but not white, faces (Hugenberg & Bodenhausen 2003). Other lines of research demonstrate the relationship between ISCs and lower-level behaviors that are not immediately observable, such as cognitive processing or neurological responses. Implicit racial attitudes assessed by the IAT were linked to greater amygdala activation when viewing unfamiliar black (versus white) faces (Cunningham et al. 2003, Phelps


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et al. 2000). Additionally, white participants with stronger antiblack bias performed poorly on a measure of cognitive control after interacting with a black partner, suggesting that those with stronger bias used more cognitive resources during the interaction (Richeson & Shelton 2003). In another study, participants viewed unfamiliar black faces while activation in key brain regions was assessed. Those with stronger antiblack bias exhibited more activation in brain regions associated with cognitive control, suggesting they were engaging in attempts to control automatic reactions to the faces. Activation in one of these regions— the dorsolateral medial prefrontal cortex— mediated, or accounted for, the relationship between implicit bias and amount of cognitive interference on a task that followed an interaction with a black individual (Richeson & Shelton 2003). These data suggest that the depletion of cognitive resources while interacting with a black partner was due to an attempt to exercise control over one’s biases. The most systematic exploration of the connection between implicit bias and behavior is a meta-analysis of studies that included the IAT and participant behaviors (Poehlman et al. 2007). Across studies, ISCs predicted a range of criterion variables, including nonverbal behavior, social judgments, physiological responses, and social action. Both implicit (average r = 0.27) and explicit (average r = 0.34) measures were significantly related to behavior across topics. In the domain of stereotyping and prejudice, ISCs better predicted criterion behavior (average r = 0.22) than explicit cognitions (average r = 0.12). Moderators of the bias-behavior relationship. Implicit bias does not inevitably lead to behavior. With the relationship between bias and behavior fairly well established, research is turning to when and how implicit bias is likely to be linked to action. In particular, motivation may moderate the link between ISCs and behavior. The MODE (Motivation and Opportunity as DEterminants of behavior) model of the relationship between attitude

and behavior (Fazio & Towles-Schwen 1999) suggests that both motivation to be egalitarian and the opportunity to control one’s behavior affect whether implicit bias is manifested behaviorally. Consider two people with identical negative implicit outgroup attitudes. If person A is motivated to be nonbiased and able to control the influence of his bias, then the MODE model suggests that the ISC-behavior link will be disrupted. Alternatively, if person B lacks such motivation, her ISCs are more likely to influence behavior. Data support this idea. Among participants low in motivation to control bias, implicit bias (measured via priming) predicted trait ratings of black targets, relative to whites. Those highly motivated to control bias showed the reverse pattern, indicating they may have been overcorrecting for their implicit bias (Olson & Fazio 2004). Similarly, for white participants low in motivation to control prejudicial responses, implicit bias predicted anticipated comfort level during an unscripted interaction with a black partner. However, it was not predictive for those strongly motivated to control prejudice (Towles-Schwen & Fazio 2003). Implicit bias toward gay people predicted nonverbal behavior during an interaction with a gay partner only for participants low in motivation and in the tendency to control their behavior (Dasgupta & Rivera 2006). The path from implicit bias to negative behavior does not appear immutable. At least under certain conditions, when people are motivated to behave in a nonprejudiced manner, they may be able to override the effects of implicit bias on behavior. People are most likely to be able to perform this correction when they can recognize the potential for social group membership to influence their behavior and to control the behavior itself.

Implicit Social Cognitions are Malleable Despite their prevalence and magnitude, ISCs are not impervious to change. Like their explicit counterparts, the immediate situation’s www.annualreviews.org • Implicit Social Cognition and Law

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demands and a person’s personality affect the strength of ISCs. Situational features affect implicit biases, either by altering some feature of the target social group or by changing the participant’s momentary goals or motivations (see Blair 2002 for a review). Implicit bias not only changes as a function of the social situation but also varies with personal characteristics. Implicit biases are sensitive to features of the local situation. Exposure to counterstereotypical outgroup members often reduces implicit bias. For example, implicit race bias was reduced both immediately and 24 hours following exposure to well-liked African Americans and disliked white Americans (Dasgupta & Greenwald 2001), whereas imagining a female leader reduced implicit gender stereotyping (Blair et al. 2001). Additionally, when the group “black” was represented by well-liked African Americans such as Michael Jordan, implicit attitudes toward blacks became more positive (Mitchell et al. 2003). Benefits of exposure to (or thoughts about) counterstereotypical individuals extend beyond the lab: Dasgupta & Asgari (2004) measured implicit gender stereotypes (male+leader) among female students at a coeducational and an all-women’s college. Although women at both schools held similar implicit beliefs at the start of college, after one year women at the single-sex college did not display any implicit bias, whereas women at the coeducational school had, on average, stronger implicit stereotypes of male+leader. Greater exposure to female teachers at the single-sex school was responsible for the decrease in bias. Presumably, observing and interacting with female professors strengthened the association of female+leader. Conscious exertion to be unbiased may— at least temporarily—reduce implicit bias. In one study, participants responded “no” when they saw a social group (skinheads) paired with a stereotypic trait, and “yes” when they saw the group paired with a counterstereotypic trait. After 480 trials of saying “no” to stereo-


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types or “yes” to counterstereotypes, implicit stereotyping was eliminated (Kawakami et al. 2000). Similarly, repeated pairings of black faces with positive words during an ostensibly unrelated exercise resulted in more egalitarian implicit racial attitudes, even though participants were unaware of any systematic pairing between positive words and black faces. This reduction persisted for two days following exposure to the black-positive pairing (Olson & Fazio 2006). Racial shooting bias in a police simulation was decreased after repeated exposure to pairs of stimuli in which ethnicity was unrelated to criminality (Plant et al. 2005). Besides these interventions, other techniques have capitalized on the extent to which implicit bias depends on salient social categories. Michael Jordan, like mere mortals, belongs to multiple social categories: gender (male), occupation (athlete), and race (African American). Classifying prominent black athletes and white politicians according to their occupation reduced antiblack implicit bias compared with classification by race (Mitchell et al. 2003; see Barden et al. 2004 for a similar result). In a striking example of how multiple identities can shape performance, a subtle reminder of Asian women’s gender or ethnicity lowered or raised their performance, respectively, on a math task, compared with a control condition (Shih et al. 1999). Even abilities expected to be stable and impervious to such minor suggestions are affected by factors not easily identifiable. Goals vary by situation, and immediate goals help to determine ISCs. Implicit stereotypes were reduced after receiving positive feedback from a black manager (presumably increasing motivation to value him) but increased after receiving negative feedback (presumably increasing motivation to derogate him) (Sinclair & Kunda 1999). Desire to affiliate with others lowers bias: Implicit racial bias was lower after interacting with a black superior than with a black subordinate (Richeson & Ambady 2001) or after interacting with an experimenter who wore a shirt that said “Eracism” (implying egalitarian beliefs) when


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the experimenter was well liked (Sinclair et al. 2005). Motivation, of course, is not solely situational: Some people are more dispositionally motivated to be nonprejudiced, a tendency that moderates ISCs. People motivated to be nonprejudiced for personal (or internal) reasons, but not social (or external) reasons showed reduced implicit racial bias on a physiological measure (Amodio et al. 2003) and a reaction-time task (Devine et al. 2002; see Vanman et al. 2004 for a case in which motivation was related to a reaction time, but not to a physiological, measure of bias). Implicit bias is also related to more general cognitive styles, such that people with highly rigid thinking styles or strongly right-wing ideologies exhibit stronger implicit bias (Cunningham et al. 2004b). Personal and situational factors do not exist in a vacuum, and the individual traits that a person brings to a situation often interact with the immediate context. Social dominance orientation (SDO), an attitudinal system referring to whether people prefer hierarchically organized groups, was related to implicit ingroup preference only when the students’ university was threatened. Without social threat, SDO was unrelated to preference for a generic ingroup. Under a condition of group threat, participants who preferred hierarchical arrangements of social groups (high-SDO) showed much larger implicit ingroup preference than did low-SDO students (Pratto & Shih 2000). Peruche & Plant (2006) found that training participants not to associate race with athleticism (by repeated exposure to pairings of black and white faces with athletic or nonathletic objects, in which race and athletic features were independent) was particularly successful in reducing this race-athlete stereotype among participants highly motivated for personal reasons to be nonbiased.

THE LAW Implicit biases appear to be widespread, to be discrepant from self-reported bias, to in-

fluence behavior, and to be sensitive to intervention. What are the legal implications? Broadly framed, this question is not novel. Legal scholars have long analyzed the significance of various states of mind, including ones that are not entirely purposeful; the topic of unconscious prejudice has been discussed for decades (Lawrence 1987). Recent findings in implicit social cognition sharpen the question because it is now supported by replicable evidence from numerous laboratories rather than by anecdote, hunch, or psychoanalytic theory. Indeed, assuming that the scientific research continues along its current trajectory, implicit social cognition has the potential to influence the understanding of intent in all bodies of law. For instance, constitutional and statutory law governing civil rights and the equal treatment of individuals is clearly subject to revision because implicit social cognition destabilizes conventional understandings of disparate treatment, disparate impact, hostile environments, and color or gender consciousness. Observed disparities between social groups will likely be examined for connection to implicit bias as an aggravating factor. In criminal law, the data are relevant in debating policies and laws surrounding racial profiling, self-defense, community policing, jury selection, and penalty setting. Finally, the various media that transmit and sustain our culture will increasingly become a source for investigation of implicit bias because they are the obvious source of what we see and hear. Already, such matters have begun to be examined in law reviews and cases.

Legal Literature The modern history of legal scholarly engagement with implicit social cognition began in the mid-1990s. In 1995 and 1998, Krieger wrote the seminal articles applying cognitive psychology to questions of, first, employment discrimination and, next, affirmative action. She argued that employment discrimination may be caused not by racist villains who www.annualreviews.org • Implicit Social Cognition and Law

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relish inflicting harm on minorities; rather, it may be a natural byproduct of banal cognitive sorting (Krieger 1995). Affirmative action may exacerbate negative stereotypes of minority beneficiaries. However, a strategy of colorblindness is cognitively naive (Krieger 1998). Written largely before the empirical focus on individual differences in ISCs, these articles relied on the antecedent psychological literature on bounded rationality and emphasized the role of schematic thinking. Nonetheless, they created the foundation for subsequent legal analyses. Other significant contributions drawing on similar science include Pollard’s (1999) call for an evidentiary privilege for employers who test for unconscious bias and Armour’s (1995) call to break the prejudice habit. By 2002, legal scholars began focused engagement with implicit social cognition science, including the IAT, which by then had gained scientific prominence. That year, Blasi (2002) described various psychological theories with substantial attention to automatic categorization, motivated cognition, and implicit bias, and analyzed why advocacy based on folk theories of prejudice would fail. In particular, he rejected traditional advocacy strategies that understood stereotypes as either empirical mistakes to be corrected or moral failures to be redeemed. In 2003, Saujani provided extensive discussion of the IAT and suggested that it could play a useful role in adjudicating equal protection claims. In Washington v. Davis (1976), the Supreme Court clarified that an equal protection violation required a finding of discriminatory intent, not mere disparate impact. Because such intent may have to be established through circumstantial evidence, the Court identified various relevant factors in a subsequent case, Village of Arlington Heights v. Metropolitan Housing Development Authority (1977). Saujani (2003) suggested that legislators should take the IAT and have those results admitted as relevant evidence in this search for discriminatory intent. Although such a recommendation far exceeds what the lead-


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ing scientists of the IAT, including its creators, view as responsible use, Saujani raised thoughtful, provocative questions. In 2005, Kang provided arguably the first systematic synthesis in the law reviews of the implicit bias research, in support of a model of racial mechanics. In addition to providing this synthesis, Kang (2005) questioned the Federal Communications Commission’s strong preference for local news as the way that broadcasters should satisfy the Communication Act’s public interest standard. Given the violent crime stories disproportionately featured on local news, he queried whether news programs functioned as Trojan horse viruses that increased implicit bias against minorities. He also suggested a broad legal research agenda and was the first to encourage a behavioral realist incorporation of the science of implicit social cognition. In 2006, the California Law Review published a special symposium volume on behavioral realism (Bayern 2006). In simplified terms, behavioral realism involves a three-step process. First, identify advances in the mind and behavioral sciences that provide a more accurate model of human cognition and behavior. Second, compare that new model with the latent theories of human behavior and decision making embedded within the law. These latent theories typically reflect common sense based on naive psychological theories. Third, when the new model and the latent theories are discrepant, ask lawmakers and legal institutions to account for this disparity. An accounting requires either altering the law to comport with more accurate models of thinking and behavior or providing a transparent explanation of “the prudential, economic, political, or religious reasons for retaining a less accurate and outdated view” (Kang & Banaji 2006, p. 1065). The extent of the pressure to be more behaviorally realistic depends on numerous factors, such as the strength of the scientific consensus regarding the emergent model, the size of the gap between the new model and old assumptions, and the consequences of both action


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and omission. This call for behavioral realism is consistent with the increased attention to behavioral economics in legal discourse and calls for a more comprehensive and situationsensitive psychological portrait of human action, e.g., Hanson’s “critical realism” (Hanson & Yosifon 2003). Within the symposium, Greenwald & Krieger (2006) succinctly summarized the science underlying implicit bias. Krieger & Fiske (2006) discussed how disparate treatment doctrine under Title VII of the 1964 Civil Rights Act might be made more behaviorally realistic, specifically by challenging the “honest belief” rule (that an employer should escape liability if it honestly believed in the nondiscriminatory reasons it provided) and the “same actor” inference (that if the person who fired an employee was also the person who had hired that employee, there would be an inference of no discrimination). Kang & Banaji (2006) revised various affirmative action arguments into new “fair measures.” In particular, they reframed certain affirmative action programs, not as reparations for the past or ways to achieve general future social benefits, but as specific techniques to counter present implicit bias. One such technique would be to deploy “debiasing agents” who are specifically selected for their countertypical attributes that decrease implicit bias instead of standard “role models,” which have a dubious constitutional and Title VII status. Blasi & Jost (2006) provided the first systematic law review introduction to system justification theory, which analyzes the motivation to defend and justify the extant social order, and examined its implications for effective legal and social justice advocacy. Jolls & Sunstein (2006) supplied a theoretical description of ways that the law might respond to implicit bias, for example through alternative methods of debiasing. Finally, Banks et al. (2006) turned to criminal law and examined issues of profiling, sentencing, and shooting in light of implicit bias to expose the lack of consensus on what racial equality actually entails.

The aforementioned works provide a sound introduction to the emergent legal literature on implicit bias and the law. In addition, dozens of articles have referred to the idea of implicit bias generally and the IAT in particular. Most make only passing reference, but some have engaged more substantially with the science and its legal implications. Noteworthy examples include discussions of petit (Page 2005) and grand jury (Teshima 2006) selection, implicit bias of capital defense attorneys (Eisenberg & Johnson 2004), health-care delivery (Shin 2002), and employment discrimination (Bagenstos 2006, Poirier 2003). The articles mentioned so far largely embrace the implicit bias research as credible, reliable, and illuminating. Others have been more skeptical. For instance, Rachlinski and colleagues (2007) question whether laboratory findings of implicit bias predict behaviors in the real world that surpass some minimum threshold of moral or legal significance. Judges completed an IAT measure of racial attitudes and then sentenced fictional defendants based on a paper profile. In this study, judges’ ISCs were uncorrelated with their judgments. Null results such as this one can appear for two reasons—either because no effect of implicit bias predicting behavior actually exists or because such an effect exists but fails to be detected because of an underpowered or otherwise flawed test (the latter is referred to as a Type 2 error in statistics). The relatively small sample of judges (N = 70) suggests that their null result may be a Type 2 error, as does the diverse nature of their sample (37 white, 30 black, and 3 Latino), the different distributions of bias among black and white Americans, and subjects’ different priming conditions, which could have added systematic variability that masked a bias-behavior relationship. The Poehlman et al. (2007) meta-analysis provides the best response to this predictive validity concern. Rachlinski et al. (2007) are correct in noting that the Poehlman paper defined behavior expansively as “any measure of www.annualreviews.org • Implicit Social Cognition and Law

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a physical action, judgment, decision or physiological reaction.” Awkward body language is hardly in and of itself actionable. That said, such intermediate behaviors should not be dismissed as unimportant, for they can contribute to the final decision-making process and influence marginal cases. Summed over large populations engaged in daily interactions and evaluations, the aggregate impact on individuals and groups may be substantial. Additionally, studies in the meta-analysis specifically measured final or ultimate decisions, including hiring recommendations (Rudman & Glick 2001) and doctors’ treatment recommendations (Green et al. 2007). Finally, other studies have provided further support in additional contexts, such as job evaluations (Ziegert & Hanges 2005). Of course, further research will help clarify the behavioral consequences of implicit bias. In contrast to Rachlinski’s reasonable calls for caution, Mitchell & Tetlock (2007) label the large body of work on implicit bias to be pseudoscience created by ideologues in order to warp public policy. In our own work ( J. Kang, K.A. Lane & M.R. Banaji, manuscript in preparation), we suggest that this accusation of junk science should be understood as predictable political backlash, regrettably laced with ad hominem and strawperson excess. Indeed, Bagenstos (2007) characterized their appraisal as “based not on any ‘scientific’ ground, but on normative assumptions . . . rest[ed] on a very narrow view, based on notions of individual fault, that the law should prohibit only discrimination that results from irrational animus.”


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opinions make some mention of unconscious or implicit bias that it would be impossible to try to list them all. In both concurring and dissenting opinions, the Supreme Court has acknowledged the potential for implicit bias to impede justice. For example, in her dissent in Adarand Constructors, Inc. v. Pena ˜ (1995), Justice Ginsburg noted that “[b]ias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country’s law and practice.” She echoed these sentiments in the University of Michigan affirmative action cases, quoting these precise words in her dissent in Gratz v. Bollinger (2003), and writing in her concurring opinion in Grutter v. Bollinger (2003), that “[i]t is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals.” More specifically, the Court has speculated that implicit bias may affect the perceptions of participants in the legal system: In Batson v. Kentucky (1989), Justice Marshall suggested in his concurring opinion that “[a] prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically.” Justice O’Connor voiced a similar concern in her dissent in Georgia v. McCollum (1992), noting “[i]t is by now clear that conscious and unconscious racism can affect the way white jurors perceive minority defendants and the facts presented at their trials, perhaps determining the verdict of guilt or innocence.” She then offered a possible remedy, suggesting that “[u]sing peremptory challenges to secure minority representation on the jury may help to overcome such racial bias, for there is substantial reason to believe that the distorting influence of race is minimized on a racially mixed jury.”


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In Price Waterhouse v. Hopkins (1989), Justice Brennan, writing for the plurality, suggested that lack of awareness of bias does not excuse the bias or outcomes resulting from it: “unwitting or ingrained bias is no less injurious or worthy of eradication than blatant or calculated discrimination”; “the fact that some or all of the partners at Price Waterhouse may have been unaware of that motivation, even within themselves, neither alters the fact of its existence nor excuses it.” Among appellate court opinions that address implicit or unconscious bias, the most interesting ones consider whether Title VII can account for such cognitive processes. Take, for example, Thomas v. Eastman Kodak Co. (1999), which clarified that “[t]he ultimate question is whether the employee has been treated disparately ‘because of race.’ This is so regardless of whether the employer consciously intended to base the evaluations on race, or simply did so because of unthinking stereotypes or bias.” If we raise the threshold of relevance and discuss only those cases that directly rely on implicit social cognition research for a factual finding or legal conclusion, few cases warrant mention. Two cases discuss implicit bias research specifically, but in dicta and toward opposite conclusions about its significance. In Chinn v. Runnels (2004), a habeas corpus petitioner challenged the San Francisco Superior Court’s grand jury selection process for never having selected a foreperson of Chinese, Filipino, or Latino descent for 36 years. Given the very deferential standard of review, the federal court accepted the California appellate court’s ruling that the government had successfully rebutted the prima facie case of discrimination. However, in the conclusion, the federal court wrote extensively to explain why under a de novo standard of review there could have been a different result. The court specifically cited a “growing body of social science [that] recognizes the pervasiveness of unconscious racial and ethnic stereotyping and group bias.” Although many of the citations to the

academic literature were to early, important critical race theory literature (e.g., Lawrence 1987), other references were made to the more social cognitive literature (citations made to Bargh 1989, Krieger 1995). United States v. Taveras (2006), provides dicta that go the other way—minimizing the significance of implicit bias. At issue was the admissibility of potentially prejudicial evidence in the penalty phase of a murder conviction. In dictum, Judge Jack Weinstein opined that Judges, who are often exposed to the nastier elements of human behavior on a regular basis, are likely to be better able than laypersons to control the effects of prejudicial information on their decisions. cf. Jeffrey J. Rachlinski, et al. Does Unconscious Bias Affect Trial Judges? (2006) (unpublished manuscript, on file with court) (empirical study of implicit associations suggests that judges, while still susceptible to unconscious biases, are able to set them aside when rendering judgment even when primed with information designed to elicit negative reactions).

The Rachlinski article cited above cautioned about predictive validity. From the lack of correlation between judges’ ISCs and sentencing decisions, Judge Weinstein inferred a certain judicial objectivity, driven by prior and regular exposure to the “nastier elements of human behavior.” As anybody who works with correlational data knows, it is dangerous to interpret a null result as showing a lack of relationship, especially given the large demand characteristics cueing the judges as to how they should respond on the sentencing exercise and given the low statistical power to detect an effect. This null result should be read in light of the Poehlman et al. (2007) meta-analysis showing a systematic relationship between implicit bias and behavior. Of course, Judge Weinstein did not follow such a reading in Taveras. It is noteworthy, and perhaps not entirely surprising, that one of the first references to the literature in a published www.annualreviews.org • Implicit Social Cognition and Law

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judicial opinion proposed that judges are immune to implicit bias. Finally, in Farrakhan v. Gregoire (2006) implicit bias expert testimony apparently influenced an important judicial finding of discrimination—although that finding was nevertheless insufficient for plaintiff’s victory. The case addressed a §2 Voting Rights Act (VRA) challenge to Washington state’s felon disenfranchisement statute. Surprisingly, the court found “compelling evidence of racial discrimination and bias in Washington’s criminal justice system.” This finding was not based “solely on statistics” that showed racial disparities in criminal law enforcement. Instead, it was based on expert testimony that included substantial discussion of both structural/institutional factors and, more important to this discussion, the potential impact of implicit bias. One of the two principal expert reports relied upon by the court contained an extensive discussion of implicit bias. In addition, another source described as helping to “bolster the Court’s conclusion” included the expert testimony of Anthony Greenwald, inventor of the IAT, who attached a draft of his submission to the Behavioral Realism symposium. This finding of racial discrimination was, however, insufficient to find a VRA violation under a “totality of circumstances” test. The court heavily emphasized that the state of Washington did not have any history of official discrimination that undermined minority voting rights. Emphasizing this factor seems to miss the point of how implicit bias functions. Nonetheless, Farrakhan demonstrates how implicit social cognitive explanations can produce judicial findings of discrimination that probably would not have been found by statistical dispari-


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ties alone. As of this writing, the case is on appeal.

CONCLUSION In a recent commentary, Banaji (2007) wrote that “[t]o be intelligent means many things of course . . . . [I]ntelligence is knowing how to weigh the evidence that flies in the face of steadfast assumptions. It means to know when causality can be inferred and not, to know when the weight of correlational evidence must be taken seriously, to know that a replication is worth much more than a single demonstration, to know that when new methods divulge strange truths about us and our brethren, it may be the theory that has to go. The moral obligation to be intelligent requires that we keep abreast of discoveries that require old views to be bagged and put out on the curb for recycling—every week.” The eager engagement of legal scholars and lawyers in the discoveries about implicit social cognition comes from the challenge they pose to existing assumptions about human nature that currently reside in the law. It is not for this review to take a position on how such evidence should inform the law. However, this review should reveal the robustness of the evidence that much of human cognition can and does occur without introspective access, that such processes nevertheless influence and guide decision making, that the costs incurred by individuals and social groups are less at the hands of the malign and more likely to come from the unaware and uncontrolled mental acts of ordinary people. The law will need to include these discoveries about how the mind (really) works to be true to Erksine’s idea that intelligence about such matters, not just meaning well, is the virtue.

DISCLOSURE STATEMENT Mahzarin R. Banaji is an officeholder in Project Implicit, a nonprofit organization that seeks to disseminate and educate about the science of implicit social cognition.

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ACKNOWLEDGMENTS We thank the National Institutes of Health, the Mind Science Institute, the Third Millennium Foundation, Harvard University, UCLA School of Law, and the UCLA Asian American Studies Center for their support of this work, and Tiffany Meites, Christopher Dial, Megan Magleby, and Leigh Rich for help in the preparation of the manuscript.


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Contents

Annual Review of Law and Social Science Volume 3, 2007

Frontispiece Kitty Calavita p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p x Immigration Law, Race, and Identity Kitty Calavita p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p1 Accountability, Quantification, and Law Wendy Nelson Espeland and Berit Irene Vannebo p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 21 How Autonomous Is Law? Christopher Tomlins p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 45 Half Empty, Half Full, or Neither: Law, Inequality, and Social Change in Capitalist Democracies Robin Stryker p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 69 The Rule of Law John K.M. Ohnesorge p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 99 Islamic Constitutionalism Saïd Amir Arjomand p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p115 The Emergence, Content, and Institutionalization of Hate Crime Law: How a Diverse Policy Community Produced a Modern Legal Fact Valerie Jenness p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p141 Restorative Justice: What Is It and Does It Work? Carrie Menkel-Meadow p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p161 Law and Collective Memory Joachim J. Savelsberg and Ryan D. King p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p189 Law and Lawyers Preparing the Holocaust Michael Stolleis p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p213 The Death of Socialist Law? Inga Markovits p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p233 Legal Innovation and the Control of Gang Behavior Eva Rosen and Sudhir Venkatesh p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p255 v

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Punishment Beyond the Legal Offender Megan Comfort p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p271 The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews Mark W. Lipsey and Francis T. Cullen p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p297 The Socio-Legal Implications of the New Biotechnologies Alain Pottage p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p321


The Frontiers of Intellectual Property: Expanded Protection versus New Models of Open Science Diana Rhoten and Walter W. Powell p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p345 Personal Information, Borders, and the New Surveillance Studies Gary T. Marx and Glenn W. Muschert p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p375 Institutional Perspectives on Law, Work, and Family Catherine Albiston p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p397 Implicit Social Cognition and Law Kristin A. Lane, Jerry Kang, and Mahzarin R. Banaji p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p427 Indexes Cumulative Index of Contributing Authors, Volumes 1–3 p p p p p p p p p p p p p p p p p p p p p p p p p p p453 Cumulative Index of Chapter Titles, Volumes 1–3 p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p455 Errata An online log of corrections to Annual Review of Law and Social Science articles may be found at http://lawsocsci.annualreviews.org

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Contents

Annual Review of Law and Social Science (2007 Vol 3)

Annual Review of Law and Social Science, Vol. 1, 2005

Annual Review of Psychology Vol 58 2007

Annual Review of Clinical Psychology 2007, Volume 3

Detail Annual (vol. 3)

Biotechnology Annual Review, Vol 13

Annual Review of Psychology, vol 52 2001

Biotechnology Annual Review, Volume 3

Annual Review of Psychology, vol 53 2002

Annual Review of Psychology, vol 55 2004

Annual Review of Psychology, vol 50 1999

Annual Review of Psychology Vol 57, 2006

Annual Review of Political Science (2003, Vol 6)

Annual Review of Political Science (2004, Vol 7)

Annual Review of Political Science (2005, Vol 8)

Annual Review of Psychology, Vol 56 2005

Annual Review of Psychology, vol 54 2003

Annual Review of Psychology, vol 51 2000

Annual Review of Psychology vol 60, 2009

Annual Review of Nano Research, Volume 3

Annual Review of Immunology Volume 3 1985

Annual Review of South Asian Languages and Linguistics: 2007

Seduction Science Vol 3

Annual Review of Genomics, 2003

Annual Review of Scalable Computing

Annual review of nano research

Annual Review of Gerontology and Geriatrics, Volume 3, 1982: Clinical, Behavioral and Social Issues

Annual Review of Pharmacology and Toxicology: 2003

Annual Review of Pharmacology and Toxicology Volume 45, 2005 (Annual Review of Pharmacology and Toxicology)

Oceanography and Marine Biology: An Annual Review, Vol. 36

Encyclopedia of Law Enforcement (3 Vol Set)

Annual Review of Law and Social Science (2007 Vol 3)

Annual Review of Law and Social Science, Vol. 1, 2005

Annual Review of Psychology Vol 58 2007

Annual Review of Clinical Psychology 2007, Volume 3

Detail Annual (vol. 3)

Biotechnology Annual Review, Vol 13

Annual Review of Psychology, vol 52 2001

Biotechnology Annual Review, Volume 3

Annual Review of Psychology, vol 53 2002

Annual Review of Psychology, vol 55 2004

Annual Review of Psychology, vol 50 1999

Annual Review of Psychology Vol 57, 2006

Annual Review of Political Science (2003, Vol 6)

Annual Review of Political Science (2004, Vol 7)

Annual Review of Political Science (2005, Vol 8)

Annual Review of Psychology, Vol 56 2005

Annual Review of Psychology, vol 54 2003

Annual Review of Psychology, vol 51 2000

Annual Review of Psychology vol 60, 2009

Annual Review of Nano Research, Volume 3

Annual Review of Immunology Volume 3 1985

Annual Review of South Asian Languages and Linguistics: 2007

Seduction Science Vol 3

Annual Review of Genomics, 2003

Annual Review of Scalable Computing

Annual review of nano research

Annual Review of Gerontology and Geriatrics, Volume 3, 1982: Clinical, Behavioral and Social Issues

Annual Review of Pharmacology and Toxicology: 2003

Annual Review of Pharmacology and Toxicology Volume 45, 2005 (Annual Review of Pharmacology and Toxicology)

Oceanography and Marine Biology: An Annual Review, Vol. 36

Encyclopedia of Law Enforcement (3 Vol Set)

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