reviews - Wiley Online Library

2 downloads 0 Views 107KB Size Report
Christine Gray, International Law and the Use of Force, Oxford: Oxford ... that of overthrowing the government or to seize the territory of the 'victim' state. .... provisions in order to achieve consensus ('lowest common denominator' p 257). ..... license to attack, say, astrology: he thinks that such cases are a special exception, a.
REVIEWS Christine Gray, International Law and the Use of Force, Oxford: Oxford University Press 2001, 243 pp, hb £45.00. A state’s use of military force on the territory of another is one of those issues of perennial debate in public international law. The informed reader will know that the question of the legality, under international law, of a state using force against another sovereign state has been a constituent of the very discipline of public international law. The subject provokes a series of complex legal dilemmas. The issues dealt with in the use of force debate gives credence to claims that public international law remains a field of law dominated by the rights and duties of sovereign states. The role played by other actors on the international law scene – such as private individuals (or private juristic persons) and international organisations – is still of a secondary nature. The importance of sentiments fostered by current academic trends, and the spectacle surrounding them, indicating the opposite should not be overestimated. This inaugural volume of OUP’s new Foundations of Public International Law series contains a comprehensive exposition of mainstream views of the law of the use of force. It is as a formidable demonstration of the potency of ‘classical’ public international law discourse. Christine Gray takes the reader on a tour through the different doctrinal questions posed in traditional use of force law. Thus, Chapter 2 (‘The prohibition of the use of force’) identifies the law of Article 2(4) of the UN Charter, the starting-point of any inquiry into the state of the use of force in international law. The provision, expressing a peremptory rule of international law, prohibits in rather ambiguous terms the use of force or threat of use of force by stating that ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. There is profound disagreement among international lawyers in government agencies, academia, and elsewhere on the exact content of the provision. Unsurprisingly, views are inconsistently upheld, and vary according to the practical needs and political considerations pertaining to the actual conflict at hand. The book cuts through the maze of disagreement, and offers a guide to the traditional ways of understanding the prohibitive nature of the provision as viewed against a background of current international conflicts. It is often said that use of force is only allowed in cases of self-defence and when initiated by the United Nations. This is not wholly true. For instance, the question of whether Article 2(4) prohibits every forcible intervention of one state of another’s territory, is discussed in length in Chapter 2. A narrow interpretation of the provision, which is often advocated by liberal states and opposed by non-liberal states, entails tolerance of a certain degree of forcible intervention as long as the purpose of it is not that of overthrowing the government or to seize the territory of the ‘victim’ state. The question of the lawfulness of intervention of another state’s territory for the protection of fundamental human rights (humanitarian intervention) forms an important part of this discussion (pp 26–42). Here, the author outlines the legal justification of the NATO military action in Kosovo 1999 – the debate over which is ß The Modern Law Review Limited 2002 (MLR 65:4, July). Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.

629

The Modern Law Review

[Vol. 65

a milestone in humanitarian intervention law. Similar issues of using force for achieving (from a liberal point of view) benevolent aims include claims of the legality of pro-democratic intervention and its corollary theme of the legality of forcible means for self-determination of peoples. These issues, whose legal force are dubious, are considered with a certain detachment and brevity (pp 42–50). Chapter 3 (‘Invitation and intervention: civil wars and the use of force’) is devoted to the question of the legality of the use of force by foreign states in intra-state conflicts. As the author correctly observes, Article 2(4) refers in prohibitive terms to the use of force in conflicts between states (‘international relations’) only. The author makes it clear that forcible intervention in civil war is nevertheless prohibited under customary international law (as confirmed by the ICJ in the Nicaragua case (United States v Nicaragua)). The issue remains, however, problematic insofar as states have historically disagreed on how this rule should be interpreted and applied in practice. The book manages to convey, in fathomable terms, the complications involved when the law on military intervention has been applied in conflicts such as in Zaı¨re/The Democratic Republic of Congo (1997–99) and in Sri Lanka during the 1987 Indian intervention. As Article 51 of the UN Charter states, the law on the use of force does not disallow the right to individual self-defence of sovereign states against armed attack from other states. The right to individual self-defence is, however, qualified, and the identification of its scope remains controversial to this day. The theme is treated in Chapter 3 (‘Self defence’). The author outlines the law according to a traditional pattern. Thus, the functions of the Security Council in a conflict in which the right to self-defence is adhered to are dealt with at length (pp 88–96). Moreover, the content of self-defence buzzwords such as ‘armed attack’ (pp 96–105), ‘necessity and proportionality’ (pp 105–108), and ‘anticipatory self-defence’ (pp 111–115) are displayed in full. Chapter 3 further discusses reliance on self-defence doctrine in the fight against terrorism (pp 115–119). The law exposed here provides a good foundation for placing in context certain aspects of international law post 11 September 2001. The last three chapters of the book all deal with different forms of collective use of military force. Chapter 5 (‘Collective self-defence’) addresses the law governing instances in which one or more states are introduced on foreign territory in assisting a state who is victim of the armed attack of another state. Chapter 6 (‘The UN and the Use of Force’) deals with the use of force under international law when authorised by the UN Security Council (cf. UN Charter Chapter VII, especially Article 41). This in essence involves use of military force under the UN umbrella for the sake of international peacekeeping and peace enforcement. Finally, Chapter 7 (‘Regional peacekeeping and enforcement action’) contains a discussion of the right of regional inter-state organisations to enact military operations similar to that of the direct UN initiated scheme, a procedure which is governed by UN Charter Articles 52–54. All these arrangements are well known subjects of use of force law. They comprise the world community’s prima facie belief in collective and orderly treatment and solution of inter-state or intra-state conflicts. The author gives an updated version on the law of collective use of force, as illustrated by path-breaking actions in the early 1990s such as that of Operation Desert Storm against Iraq, the UNPROFOR presence in former Yugoslavia, the UNOSOM operations in Somalia, and the UNAMIR action in Rwanda. The picture presented in these chapters is not a bleak one, but it is one of various degrees of success and reason in applying international law to insoluble conflicts. The law of the use of force is centred on the acts and opinions of sovereign states, and to a certain extent international organisations such as the United Nations.

630

ß The Modern Law Review Limited 2002

July 2002]

Reviews

Because of the various opinions as to the content of the subject advanced by numerous states on various occasions – some of them merely instrumental for the protection of the interests of the state in question – the use of force problem is highly unsettled. In essence, the question of the use of force in international law, or rather, the principal starting point which prohibits any use of force between sovereign states, involves the inevitable question of the effectiveness of international norms. Mention of the debate over effectiveness is made in Chapter 1 (pp 19–21), a theme whose importance ideally would have deserved some more pages of general introduction. Indeed, the subject is an underlying consideration of all discussions presented in the book. Naturally, this book is not the only academic work written on the law of the use of force, neither will it remain the newest account for long. The events of 11 September 2001 and its aftermath have shown that classical topics of public international law are facing rejuvenation, reassessment and new interest. Writing a monograph on this subject is, therefore, a task for the Sisyphuses among us. The book jacket states that the aim of the book is to ‘cover the whole of the large and controversial subject of the use of force in international law’. These are huge promises for a book whose text covers only 237 pages. However, the book is comprehensive, and many stones have been turned in the process of writing it. It is a definitive account of the question of the use of force in public international law as seen from the perspective of traditional public international law. It clearly guides the reader to the foundations of the use of force law both in books and action. This is a laudable achievement for a book in a field entrenched by post-modern currents. This, however, brings me to my criticism of the book: it is not sufficiently declaratory in its introduction as to the scope and purpose of the analyses contained in it. The book reveals no detailed clarifications as to what exactly confines the topic under review. Nor does it clearly state its purpose. The introduction in Chapter 1 (‘Law and force’) is an exposition of current problems. To be sure, a main strength of the book is its contemporary appeal: it deals extensively with recent conflicts in international relations, in which legal discussions related to the prohibition of the use of force have played a prominent part. The Kosovo and Iraq crises are well treated, and the account of recent crises, as seen in the context of the dogma being analysed, brings the discussion of the use of force up-to-date. The author makes a point of updating the subject, and that might even be said to be the book’s real objective. But it is not an objective that – without further explanation and grounding of the topic – provides food for thought for newcomers to this very complex field. The book is naturally aimed at a professional audience, well acquainted with the intricacies of current public international law. However, as the book professes to be a definitive, but not too daunting (when measured in number of pages) introductory account of one important chunk of public international law doctrine, it is surely also aimed at a broader audience. The format of the book makes it suitable for novices in the field, such as students, who need a comprehensive treatise on the law of the use of force. And so Chapter 1 disappoints in its direct approach to the most difficult aspects of the law in question without any preliminary introduction. Not that this should lead newcomers to public international law to refrain from reading International Law and the Use of Force. For it is an enjoyable read, written by an individual whose command of the subject is impressive. Marius Emberland* * Lincoln College, University of Oxford. ß The Modern Law Review Limited 2002

631

The Modern Law Review

[Vol. 65

Phoebe Okowa, State Responsibility for Transboundary Air Pollution in International Law, Oxford: Oxford University Press, 2000, xxvii + 285 pp, hb £65.00. This book considers the extent to which international treaty law and customary law addressed state responsibility for transboundary air pollution. State responsibility for environmental harm is an aspiration that governments have often proclaimed but usually resisted defining. Acknowledging this unsatisfactory position, for instance, Principle 13 of the 1992 Rio Declaration on Environment and Development uttered: ‘States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage. . .’. One major reason why states are reluctant to elaborate clear international rules of responsibility for environmental harms is because they wish to avoid being sued. Okowa’s in-depth analysis of the legal regime of the regulation of transboundary air pollution reveals that beneath the surface there is an emerging corpus of rules in treaty and international custom that can assist in assigning responsibility for international environmental harms. Her book does not cover all forms of air pollution, choosing to focus on pollutants from industrial activities (eg, sulphur and nitrogen emissions) and radioactive contamination, but avoids discussion of global climate change and depletion of the ozone layer, subjects which warrant sizeable tomes in their own right. The first chapter discusses the major transboundary pollutants, including their environmental effects, with some focus on the notorious Chernobyl accident. The second chapter canvasses in detail the main treaty regimes, notably the 1979 ECC Convention on Long-range Transboundary Air Pollution and its ancillary Protocols on sulphur, nitrogen oxides and volatile organic compounds. These instruments primarily address the prevention of pollution and the monitoring of emissions rather than responsibilities for the effects of pollution. Following a detailed discussion of relevant international jurisprudence and state practice, canvassing in particular the Trail Smelter case and the Nuclear Test cases, Okowa concludes that states have clear obligations under customary international law to exercise due diligence to ensure that activities under their control do not cause transboundary harm. In relation to radioactive pollution, the author finds evidence of a stricter regime of controls inconclusive. Okowa then explores the procedural obligations states might be subject to in treaty or customary law. This includes whether there is a legal requirement to undertake an environmental impact assessment of potentially polluting activities, and obligations to exchange information and to consult in advance of new projects. She correctly concludes that most of these procedural obligations have not yet crystallised into firm rules of customary international law and that the treaty-based controls are largely imperfect. Only a duty to warn in emergency situations – an obligation accentuated after the Chernobyl disaster – appears to be well established in international environmental law. Regarding the determination of state responsibility, the author examines important questions of thresholds of environmental damage, causation, proof and joint and several liability. She also deals with judicial remedies, including the question of the standing of states to enforce compliance with multilateral treaties and erga omnes norms where there is no express right to sue. The chapter also canvasses some nonjudicial means of supervision and enforcement, for instance the treaty-based measures under the ECE Convention and its Protocols, and the scope for self-help and counter-measures.

632

ß The Modern Law Review Limited 2002

July 2002]

Reviews

Overall, Okowa pursues a conventional lawyer’s approach to the subject matter. State responsibility and liability are the traditional legal responses to breach of international obligations. Her methodical study of the international rules applicable to transboundary and long-distance air pollution leads to the conclusion that the existing norms of general international law provide a sufficient footing for assigning liability to states behaving contrary to those rules. Yet why, she enquires in conclusion, ‘have states failed to rely on the regime of state responsibility for their enforcement?’ (p 257). Okowa suggests that the explanation resides in the dilution of the rigour of treaty provisions in order to achieve consensus (‘lowest common denominator’ p 257). She also argues that a ‘distinctive feature of long-range transboundary air pollution is the general inability to trace the precise sources of pollutants that eventually cause damage’ (p 10). The numerous potential pollution sources in different states and the synergistic effects of pollutants make, claims Okowa, ‘the determination of a cause/ effect relationship . . . in most cases elusive’ (p 11). Perhaps the main reason for the under-utilisation of mechanisms to impose state responsibility is the unwillingness of parties to apply what is basically an adversarial instrument to collective obligations in multi-party disputes, the nature of most contemporary international air pollution situations unlike the rather atypical bilateral dispute involved in the 1941 Trail Smelter case. One must seriously doubt the continuing relevance of traditional methods of adjudication in the international environmental field. In the penultimate chapter, Okowa begins to come to grips with where the future of effective international regulation of pollution arguably resides. Having earlier surveyed the limitations of judicial processes and remedies for assigning responsibility for transboundary pollution, Okowa explores the role of emerging transnational institutional networks of monitoring, reporting and soft supervision. This is an area of the book that could have been fruitfully developed further. Other studies, such as by Edith Brown Weiss and Harold K. Jacobson, have observed that traditional legal techniques and norms of enforcement have played at best a peripheral role in the implementation of many modern environmental conventions. Instead, there is reliance on alternative methods of promoting treaty compliance, including use of economic incentives and enhanced reporting and other transparency measures. International environmental law and policy is primarily concerned with promoting cooperation for environmental management and protection. Using private law type models to assign ex post facto responsibility for environmental harm can perhaps never be a major element of international environmental law. Problems of global warming and ozone layer depletion, for example, are now being addressed through preventative measures (eg controls on polluting emissions), as it is clear that the costs of delaying responses until after damage materialises will likely be much more expensive (and the harm could be irreversible). Okowa does consider ‘whether or not there is a case for the development of new principles’ (p 90) given the potentially unsatisfactory retrospective character of customary international law responses, and the arguable ‘fundamental importance of environmental interests’ that may demand ‘new norms that have a higher status than those traditionally used to reconcile conflicting claims to sovereign rights’ (p 90). Such an approach underscores the growing status of the ‘precautionary principle’. The principle has been acknowledged in several international declarations and treaties (eg 1996 UNCLOS Agreement on Straddling and Highly Migratory Fish Stocks) and it posits that governments should take preventative measures for potentially irreparable environmental harms even if the risk is uncertain or remote. Okowa, however, believes that ‘at the present time there is little evidence to support the thesis that the precautionary principle embodies distinct normative principles; it ß The Modern Law Review Limited 2002

633

The Modern Law Review

[Vol. 65

is no more than a non-binding guiding precept’ (p 93). In doing so, Okowa cites Birnie and Boyle as authority, yet reference is made to a ten year-old source, ignoring many salient developments in international environmental law since. At best, Okowa sees the salience of the precautionary principle as residing ‘in determining the content of the due diligence obligations of states’ (p 85). This could require, for instance, the execution of environmental impact assessments before undertaking an environmentally risky activity, although not necessarily an obligation to refrain from pursuing a project that carries some environmental risk. Okowa canvasses, and largely dismisses, a number of other emerging norms in international environmental law that could assist in managing transboundary environmental harms, such as notions of environmental rights and intergenerational equities. Unfortunately, there is no discussion here of the important concept of ‘common but differentiated responsibilities’, although she did earlier acknowledge that international obligations should sometimes be qualified ‘to take into account the different economic circumstances of states’ (p 7). Notions of differentiated legal responsibilities between developed and developing nations have received recognition in mainstream treaty law, notably the Climate Change Convention (1992) and the Biodiversity Convention (1992). The principle of common but differentiated responsibilities conveys that whilst all nations share responsibilities for environmental protection, the rich industrialised nations must take the lead role because of their disproportionate historical contribution to environmental problems and their superior financial and technological resources available to respond. The principle may offer a radically different approach to managing global environmental problems than reliance on private law-type models of state responsibility. Aside from the paucity of engagement with some of the newer, alternative paradigms for organising state responsibility for environmental problems, the book remains a very useful contribution to the international environmental law literature, offering a well-researched and lucid analysis of the international treaty and customary-based rules governing traditional approaches to state environmental responsibility. By analysing transboundary air pollution within the framework of public international law, and providing a comprehensive treatment of case law, the author is able to connect environmental law with the broader issues of general international law. Benjamin J. Richardson*

Brian Leiter (ed), Objectivity in Law and Morals, Cambridge: Cambridge University Press, 2001, xi + 354 pp, hb £42.50. Legal philosophy since the 1960s has been gradually moving away from discussion of the foundations of doctrinal areas and in the direction of general philosophy. This volume epitomizes this trend. It focuses on a traditional metaphysical problem: for any given domain, are claims within it objective? For any such domain, furthermore, what is the test of objectivity? This volume addresses these questions in two domains, law and morality. That these two domains should have been chosen is explicable on two grounds. First, if, as some philosophers believe, the content of the law is dependent on morality, then legal judgment cannot be deemed objective unless it can * University of Manchester.

634

ß The Modern Law Review Limited 2002

July 2002]

Reviews

be shown that the morality in which law is grounded is objective. Secondly, law and morals must confront the same kind of sceptic: that is, the sceptical arguments that trade on the claim that morality depends on human responses or practices can be adapted to apply also to law. If such dependence makes morality ineligible for objectivity, then law must likewise be ineligible. The contributions to this collection are diverse and of high quality. David Brink grants that the law is composed of materials that express decisions such as statutes and cases; he then asks whether the interpretation of such materials can be objective. Brian Leiter discusses the question of naturalism about morality: can we defend morality’s objectivity simply by appealing to the fact that moral claims are susceptible to reasons, or must we also find for them a foundation in the natural world, such as that provided by science? Gerry Postema argues that judgments in an objective domain must possess, among other things, the possibility of invariance across subjects, and claims that a public procedure of justification capable of leading to consensus is among the marks of objectivity. Sigrun Svavarsdottir critically discusses Thomas Nagel’s defence of the objectivity of value, which, she says, postulates that the issue is not whether values are part of the fabric of the world, but rather whether values are visible from a standpoint that is sufficiently detached from the personal perspective. Joseph Raz develops and defends the objectivity of practical reason against a number of difficulties, including the observation that some concepts that figure in practical reasoning are ‘parochial’, ie their content depends on social facts. Philip Pettit’s essay develops a defence of objectivity of value which concedes that evaluative properties are dependent on human responses, just as are secondary qualities such as colour. David Sosa, by contrast, argues that objectivity is sensible only for primary, non-response dependent properties. The essays are all important to specialists, and several may prove valuable for graduates and advanced undergraduates. Here I focus on only two of them – Brink’s and Leiter’s. Each of these address important issues discussed in recent literature in legal philosophy. Brink begins by saying that the law is objective where it determines a uniquely correct outcome for a hypothetical or real case. In fact, his discussion of objectivity proceeds in terms of fallibility (ie, scope for error), which is perhaps a more helpful conception of objectivity, since it allows us to connect objectivity in law with objectivity in other domains. Consider, for example, physics as an objective domain: what makes it objective, on the error-based conception, is that there is conceptual space between what we take to be the case about the physical world, and what the case is. This space – between judgment and what is – is the space for error. The fact that our judgments may be fallible makes the domain objective. Brink focuses on fallibility of judicial judgment. Those who think that the law is what judges say it is – the American Legal Realists typify this position – in effect hold judges infallible. In doing so they regard the law as thoroughly indeterminate. We can try to predict what the judge will do, but for the judge there is no fact of the matter about what the law is and so whichever way he decides is perfectly legal. Those who think that judges are at least some of the time fallible think that the law is at least partially determinate. Hart fits into this niche, since he famously thought that in ‘easy’ cases there is a standard that governs judicial behaviour, by reference to which decisions, even if final, can be distinguished as correct or incorrect. That is a specifically legal standard that determines judicial duties, not just any old standard such as moral, prudential or stylistic. By contrast, Hart thought that in ‘hard’ cases there is no fact of the matter as to what the law is, which is to say that there is no such standard governing judicial behaviour; and so for a judge there is no legal mistake to make, whichever way he decides. Finally, those who think that there is always a fact ß The Modern Law Review Limited 2002

635

The Modern Law Review

[Vol. 65

of the matter as to what the law is believe that judges can always get the law wrong: a court might fail to discern the right answer, for example, in producing its decision. This last position is one which we might associate with Ronald Dworkin, and Brink is tempted in that direction – although he wants to rely not on Dworkin, but on arguments from the philosophy of language instead. Hart believed that when lawyers disagree about the applicability of a general term in the canonical formulation of a legal rule – in his famous example, when lawyers cannot agree as to whether something is a vehicle – there is no fact of the matter about what the law is. Dworkin’s critique of that view is, according to Brink, this: the law includes not only rules but also principles, and so in hard cases, where the rules may well be silent or lead to an absurd outcome, principles come into play and fill in the gaps. For Brink, however, this critique will not do, since principles are more grist for Hart’s mill: that is, principles are expressed in language, including open-textured general terms. If the application of rules is partially indeterminate as a result of the open texture of the terms in which they are expressed, the application of principles will be just as indeterminate, except if we suppose, implausibly, that every case that is hard in respect of the relevant rules is an easy one in respect of the relevant principles. To resist Hart’s thesis, Brink claims, we must engage with his semantic argument for indeterminacy. This argument involves two assumptions: first, that the meaning of an expression consists in the identifying descriptions which users associate with it; secondly, that meaning determines reference, in the sense that the expression correctly applies to something just in case it satisfies the descriptions. Brink argues, plausibly, that we should not accept either assumption. Taking his cue from Donellan, Kripke and Putnam, he argues that any semantics must disengage the meaning and/or reference of expressions from beliefs of users about the range of application of those expressions, and must accept that identifying the reference of an expression typically involves theoretical considerations that go beyond what ordinary users know. Brink was among the first to see the relevance of the arguments made by Kripke et al. to debates in legal philosophy. If we accept Brink’s arguments, as I think we should, we must reject Hart’s semantic argument concerning indeterminacy. But is this all we need to say? Is it true, in other words, that the question of objectivity in law is identical to the question how canonically formulated rules apply to cases? Brink says that such semantic issues do not exhaust legal interpretation. Whichever way we answer the question concerning what counts as a vehicle, hard cases persist. Police cars are vehicles, but this does not settle the question whether a police car that enters the park in an emergency has violated the relevant prohibition. Legal rules are human artifacts, says Brink, and as such are essentially tied to their rationales. Legal interpretation has to resolve not only the problem of applying the constituent expressions of a rule’s formulation, but also the problem of applying the rule in line with its rationale. To address the problem Brink develops a view that is, as he points out, Dworkinian in spirit, if not in detail: interpreters must assign a rationale that best justifies the rule, and it is in light of the rationale that the rule must be applied. Since Brink ends up pretty much where Dworkin does, it seems pertinent to ask whether he was right to reject Dworkin’s argument from principles. Evidently Brink thinks that Dworkin’s argument from principles is meant to refute Hart’s indeterminacy thesis, granted that the law is a matter of what words mean in a set of canonically formulated norms. And if that were Dworkin’s point about principles, it would have the weaknesses Brink attributes to it: the argument from the philosophy of language would supplant, not reinforce or work in tandem with that from principles. Indeed, that is the reading of the argument from principles that positivists

636

ß The Modern Law Review Limited 2002

July 2002]

Reviews

favour. For the legal positivist, we first of all have legal norms and then consider what they have to say for the dispute in hand. That is a state of affairs which minimizes the significance of principles since, even once we have agreed that some principles figure among our legal norms – once we have settled the positivist’s question of validity – we must still resolve problems about how the terms in which those norms are expressed are to be applied (much like Hart’s rule about vehicles in the park) and about how to balance principles that pull in opposite directions – we must further settle the question of the norms’ impact on our rights and duties. Of course, principles are not norms that are formulated in a canonical way and cleverly hidden in the library’s philosophy shelves where lawyers rarely look. Rather, to evoke Dworkinian imagery, they figure in a story that justifies settled law. A principle that justifies resolving a case in a certain way is a legal principle just in case it justifies resolving other cases in the way in which they have been resolved: what makes a principle legal is its justificatory power in other cases, the fact that it figures in the rationale of settled law. What makes it relevant to the case in hand is the fact that it decides the case in a particular way, not that it is within the ballpark of decisive factors. And so the notional further problem of application evaporates. Dworkin’s principles are, then, the very same thing that Brink urges us to look for in order to decide hard cases: rationales or ‘points’ or ‘purposes’. Brink’s misinterpretation of Dworkin’s argument would be inconsequential if it were merely a matter of how to interpret Dworkin. But in fact it is evidence of some deeper flaw. Brink accepts, in effect, the positivists’ claim that the law consists of a set of norms, whose identity is fixed in some way or other, and which we must apply to the facts of cases in order to resolve disputes. This is the reason, I suspect, why he thinks that Dworkin’s point about principles must be understood as a point about how many legal norms there are, norms whose legality is a distinct matter from their specific bearing on cases. And that is also the reason, I believe, why he thinks that his new semantics, supplemented by attribution of rationales, is helpful in the context of legal interpretation alone, not in order to work out, more fundamentally, what the law is in the metaphysical sense (ie what its nature is). Extending interpretivism to the question of the nature of law would take us to a different conclusion about the state of play in jurisprudence. Brink’s conclusion focuses on what he takes to be the strongest case for positivism: that a law can be part of the system even if it is bad. Brink concludes that, since working out what the law says is an interpretive matter, values play a role in identifying the least bad interpretation of bad laws, and so positivism does not win outright. By contrast, the line of argument that takes up the question of the nature of law itself ends up at a different place. According to this line, the right view about the nature of law is the one that best justifies legal practice as a whole, ie which assigns to law a rationale such that its various attributes are shown to be justified in the best possible way. It follows that, not only must we use constructive interpretation in order to identify the content of statutes, and so must justify them so far as possible, but we must also use constructive interpretation to determine the legality of statutes. Bad statutes might turn out to be part of the law because it is good that they should be, in which case positivism loses. Leiter takes on Dworkin’s anti-Archimedean arguments, and finds them deeply flawed. According to Dworkin, what the law requires follows from the best justification of political history. But this makes the law’s standing hostage to evaluation’s standing. To justify the history, after all, we must rely on certain values, and if the latter are a matter of projection or are otherwise not objective, what the law requires cannot be an objective matter. ß The Modern Law Review Limited 2002

637

The Modern Law Review

[Vol. 65

It seems, then, that Dworkin needs to defend his conception of law at some metaevaluative level. But Dworkin famously argues that there is no such level: all the defence we can offer, and all that is necessary for our evaluative claims, is, according to Dworkin, internal to the evaluative domain. To defend the claim that slavery is wrong is to point out all the values that it violates, not to offer some kind of special, metaphysical defence that is austere (relies on no value) and neutral (has no implications at the first-order evaluative level). And, since we have plenty of such first-order defences for the proposition that slavery is wrong, we need not worry at all; our evaluative claims are secure. Leiter is not convinced. He thinks that there exists an external standpoint from which to mount scepticism, and therefore that there exists a distinct, external defensive task for friends of the objectivity of value. Not external to everything of course: there is no timeless Archimedean point external to all that we believe in and from which to inspect and remedy all our problems at once. He does think, however, that there exists some point which is sufficiently Archimedean for evaluation and other suspect practices: that is the point occupied by the sciences, a point which is external to, and so permits global, wholesale attacks on many domains, and in fact is as external to evaluation as it is to superstition, witchcraft, or astrology. Leiter’s paper raises many issues, and I will only discuss one: can there be external scepticism? Leiter claims that the argument to the effect that there cannot is either trivial or incoherent. The crucial argument is really an argument about the logic of criticism: the sceptic must suppose that his claims engage and compete with the claims made in the domain that is the target of his criticism. What makes it the case that a claim is competing with another is a substantive matter, and it is typically part of the sceptic’s task to show that his target’s claims are indeed competing with his own, and that his own claims are stronger. The argument from internality summarizes a common feature of all sceptical attacks: namely that they include or entail a claim about competition. The point goes back to the structure of agreement, disagreement and error. It has been pointed out, time and again, that you cannot disagree with someone unless there is something you disagree about. Since something or other must serve as the locus of the disagreement, the sceptic and his target must, inevitably, share something – a subject matter. What one says is internal to what the other says. Leiter misconceives the reason the internality argument is consistent with science’s license to attack, say, astrology: he thinks that such cases are a special exception, a concession to the effect that, where causal claims are involved, the internality argument does not apply. The truth is precisely the other way around: the fact that astrology receives no immunity illustrates the general operation of the internality argument, rather than restrict it to non-causal domains. If the internality argument does not aim to confer immunity to particular domains, how can it help defend morality? It does so in at least two ways. First, it does so by helping show that the scientist and the moralist are not in fact competing with each other and that we need not think of science as a source of moral scepticism. Secondly, it helps defend morality against those who are not convinced and think that science is in fact competing with morality: for example those who think that there exists a causal account which fully explains morality, whatever that means, and so, as it turns out, competes with it. Given that scepticism is always internal, so the defence goes, it follows that the challenge, if successful, should displace its target. That is what happens in the case of astrology. To be convinced by the sceptic is to give up the belief that one should avoid momentous decisions when the stars are out of line. The tricky point with most versions of moral scepticism is that the sceptic will not do that,

638

ß The Modern Law Review Limited 2002

July 2002]

Reviews

and this is why such scepticism is very different from the kind which Leiter champions. The typical moral sceptic wants to tell us both that something is very wrong with morality and that we should not torture babies for fun, even when no one is looking. He is like someone who says that, though it is not really objectively true, influenza is indeed the influence of bad spirits. The internality argument then poses a dilemma for him. If he is right about the first part, he must be wrong about the second. Or vice versa. And of course he likes neither of these options. Now, for an argument as small as the internality argument, that is a pretty neat trick. So, pace Leiter, the argument seems coherent and important. Perhaps there is something wrong with it, but Leiter has not put his finger on it. Although I have focused on only two of the essays in this collection, I should reiterate that all of the contributions discuss topics that are important and difficult, and do so at a very high level of clarity and sophistication. I would strongly recommend Objectivity in Law and Morals to anyone who is working in legal and moral philosophy. Nicos Stavropoulos*

Robert Wintemute and Mads Andenas (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law, Oxford and Portland, Oregon: Hart Publishing, 2001, 790 pp, pb £48.00. If a 19th century lawyer had a crystal ball that could predict developments in family law at the beginning of the 21st century, the fact that the nature of marriage had changed would be a completely shocking revelation. The requirement that the parties to a marriage should be one man and one woman no longer holds true due to medical advances and societal evolution. For example, a person can now surgically alter his or her birth sex. Transsexuals may marry in their surgically altered sex in many European jurisdictions, and the marriage will be considered valid. Likewise, there has been a worldwide movement for homosexuals to enter into marriage. While many countries have already enacted a registered partnership, the Netherlands was the first to open up marriage to same-sex couples on 1 April 2001. Indeed, the crystal ballgazing lawyer from a different century may wonder whether the sky has fallen, and would be amazed to discover that many modern day academics, jurists and practitioners actively endorse these new forms of partnerships. This book is the result of an international conference held at King’s College, London in July 1999. Delegates from around the world convened to debate two issues. First, should a form of partnership or full marriage should be open to same-sex partners? Secondly, to what extent should legal rights and duties be given to such unions under the respective national laws? The 47 contributors have provided a ground-breaking text which flows seamlessly through four sections. Part I introduces the reader to theoretical perspectives on same-sex partnerships. Part II is an extensive survey of the partnership laws and developments worldwide. Part III relates the development of same-sex partnership laws in the European Community, and the implications of the recent implementation of the European Convention on Human Rights. Finally, Part IV examines same-sex relationships under the United Nations human rights system. Exceptionally handy for the reader are the three appendices included at the the end of the book that refer to national legislation. * University Lecturer in Legal Theory, University of Oxford; Fellow, Mansfield College, Oxford. ß The Modern Law Review Limited 2002

639

The Modern Law Review

[Vol. 65

This collection of essays should be of interest to all academics and socio-legal scholars alike. It also serves as a benchmark of how far the law has progressed in the global fight for the right to marry for all lesbian, gay, bisexual and transgendered people. However, what is painfully obvious from this book is that the United Kingdom, with its Victorian definition of marriage, still lags far behind the rest of Europe. In this day and age, the exclusion, and therefore, the refusal to extend what should be considered a fundamental human right is completely unwarranted, particularly in a developed legal system. While many of our academics and practitioners have long advocated same-sex partnerships, the time is now ripe for Parliament (which is currently considering the Civil Partnerships Bill) to be bold. Yvette Tan*

Gillian Douglas, An Introduction to Family Law, Oxford: Oxford University Press, 2001, xxvi + 210 pp, pb £14.99. This book goes considerably further in many ways than its title suggests. While it is an introductory text in the sense that it is a relatively slim, concise work that avoids detailed analysis of statute and case law, its scope is broader than some, more traditional, texts on family law. As the author says in the preface, it sets out to highlight the main policy issues affecting the law, exploring how the law shapes and is shaped by thinking about the family. In doing so, the book touches on cultural, historical, social and political influences on the law. Using a structure based on what she terms a ‘family life cycle’ approach, Douglas examines the formation of family relationships and their legal implications, followed by an exploration of the termination of such relationships and the attendant legal consequences. As she points out, there is little in the way of principle that can be discerned in family law. Instead, throughout the book, she seeks to draw out what she identifies as the main themes that underpin developments in the field. These themes are set out in the first chapter and encompass the constructed nature of the legal ‘family’, the shift from the family to the individual, the notion of equality, the tension between discretion and rule-making, the existence of the public/private divide, the move to informal dispute resolution and the increased importance attributed to the voice of the child. The chapter on the formation of family relationships starts from the premise that demographics and social attitudes are beginning to force the law to recognise increasingly diverse family forms. Although marriage is still the primary determinant of family status, greater emphasis is being placed on the parent/child bond and cohabitation, or more specifically marriage-like heterosexual cohabitation, has been accorded a degree of legal recognition. This dichotomy between what Douglas calls the ‘old’ and ‘new’ foundations of legal recognition is, she argues, exemplified by the existence of two different fundamental human rights in the European Convention of Human Rights: Art 12 links the family with the right to marry while Art 8 simply refers to a right to family life. The latter right, she suggests, carries the potential for widening the scope of legal recognition based on the content rather than the form of the relationship. The chapter therefore covers not only the rules governing the validity of marriage, but also the law applicable to heterosexual and same-sex * PhD Candidate, School of Law, University of Manchester.

640

ß The Modern Law Review Limited 2002

July 2002]

Reviews

cohabitation, the law on parenthood within and outside marriage and, in addition, some discussion of the law as it affects the extended family. Chapter 3 is entitled ‘Rights and Responsibilities within the Family’ and deals with the key incidents of marriage and parental responsibility. In the course of doing so, it traces the evolution of the position of women and children from that of subordination to the paterfamilias to the status of individual rights-bearers. Douglas discusses, in this context, the extent to which children and adults can function as autonomous actors. She draws our attention to the different conceptions of rights that are applied to children as opposed to adults, pointing out that children’s rights are conceived of as rights to welfare rather than autonomy rights. She also notes that the law treats adults differently depending on whether they are operating as spouses or parents. Parental responsibility allows adults, as parents, a significant measure of autonomy in raising their children. Yet, as a married couple, adults do not have the power to regulate contractually the content of their relationship. This concession to liberalism in the one case but not the other, she suggests, is hard to justify. It is the theme of equality that emerges most prominently in the chapter dealing with the family home. Douglas postulates two models of marriage, each implying a different view of equality. The first, a ‘partnership of equals’ model, assumes, but does not ensure, equality. The second, ‘a joint enterprise model’, conceives of marriage as a joint project in which the spouses may undertake equal but possibly different burdens and are equally entitled to the benefits of their efforts. Douglas characterises the model of marriage discernible in Lloyds Bank v Rosset as ‘a joint enterprise in terms of sharing a life together, but with no necessary assumption that the parties will be jointly entitled to the fruits of that shared life at its end’ (p 93). And she suggests that the way in which the law quantifies shares in the beneficial interest in the home reinforces ‘the partnership (though not necessarily an ‘‘equal’’ one) rather than the joint enterprise model’ (p 96). In this context, the significance of the two models becomes a little unclear. Nevertheless their usefulness as analytical tools becomes more apparent in her conclusion. She observes that, while the rules governing the ownership of family property fail to recognise a joint enterprise model, the law does view the family as a unit that must bear the burdens as well as the benefits of shared family life when, owing to commercial failure, the home is at risk. The theme of family privacy informs the discussion of domestic violence and the remedies available under the Family Law Act as well as the Protection from Harassment Act. Douglas endorses the need for state intervention in the family to protect vulnerable parties to unequal relationships. Privacy forms the backdrop also to the chapter on ‘Safeguarding Children’s Welfare’, where both private ordering and state intervention to protect children at risk are dealt with. That chapter gives a clear account of private law and public law, covering section 8 orders as well as the law on child protection. It includes explanations of the investigative powers vested in local authorities, emergency and investigative orders, care orders and supervision orders. Adoption and child abduction are also discussed briefly. In addition, there is an examination of the welfare principle. Besides describing the ways in which it has been and is currently constructed, Douglas also explores the role of child welfare science in shaping those constructions. The concluding chapter focuses on the end of relationships, whether through death or divorce. The history of divorce is addressed, the current grounds and procedure are explained and the demise of the Family Law Act 1996 is evaluated. The financial and property consequences of divorce as well as the child support scheme are considered. Again the analysis focuses on the issue of equality and Douglas suggests that there is a move towards recognition of the joint enterprise model on divorce. ß The Modern Law Review Limited 2002

641

The Modern Law Review

[Vol. 65

This is a lucid and manageable account of family law and policy incorporating all the major developments in the field. It does not purport to be comprehensive but it is remarkably informative in the areas that it covers. And although it is not intended to provide a sustained analysis of the various theoretical positions expounded in the literature, it succeeds in introducing the reader to some of the theoretical frameworks that are currently influencing academic thought. It offers a good grounding in domestic family law and, in the light of the Human Rights Act 1998, addresses the relevant law decided under the European Convention on Human Rights. It traces the evolution of significant trends and charts the changes in understandings of family life along with the law’s responses to those changes. This book will engage readers and encourage them to plunge deeper into what one writer has called ‘the normal chaos of family law’. Felicity Kaganas*

Sandra Fredman (ed), Discrimination and Human Rights: The Case of Racism, Oxford: Oxford University Press, 2001, xxi + 309 pp, hb £40.00. The principle of equality is central to modern democratic polities. It is enshrined in constitutional traditions and in public international law instruments. Yet, in theory, there is no broad consensus over the meaning of equality and, in practice, the principle of equality has failed to alleviate patterns of discrimination and prejudice, institutionalised practices of exclusion, racial hatred and violence. Why? Indeed, the central question underpinning this edited collection is the gap between the legal prohibition of racial discrimination and the concrete reality of racism, which, according to Fredman, operates along at least three axes; namely, stereotyping, hatred and violence, disadvantage in the distribution of resources and the negation of culture, religion or language. Discrimination and Human Rights is the product of lectures delivered at the Academy of European Law, European University Institute, and the quality of the contributions varies from fairly descriptive to very imaginative. Within the latter category Chalmers’, McCrudden’s and Petrova’s contributions stand out. But generally speaking, this is a very informative volume. It combines a good overview of contemporary debates over the meaning of equality with a lucid account of international human rights and European Community provisions, and raises important questions about the role (and the limits) of the law in the quest for equality. I found interesting the belief that sorting out the equality riddle or reconceptualising equality will somehow eradicate discrimination or help the effective realisation of equality, but I was also surprised by the lack of systematic attention to politics, relations of power and existing hierarchies. In addition, more attention should have been given to articulating opposition to racism as a value distinct from cultural recognition or equal respect for cultures. In the opening essay, Fredman shifts the focus of attention from the enforcement of equality to the concept of equality itself, thereby uncovering the polysemy of equality: formal equality or equality as consistency (equity) and its legal equivalent of direct discrimination; equality of results (ie the tackling socio-economic and * Brunel University.

642

ß The Modern Law Review Limited 2002

July 2002]

Reviews

political disparities), equality of opportunity (ie eliminating formal legal barriers of exclusion) and their amalgamation in the legal concepts of indirect discrimination and positive duties; a value driven approach consisting of human rights principles; and equality as auxiliary to substantive rights. Fredman argues that it is questionable whether traditional human rights adjudication can generate a rich conception of equality which affirms diversity while at the same time condemns inferior treatment on racial, religious, or ethnic grounds. This is because the individualised nature of human rights adjudication fails to take due account of a group dimension. However, this should not lead to an underestimation of the potential of certain provisions in ICERD, ICCPR, FCPNM based on positive duties to ensure equality. This conclusion is shared by Petrova who favours a mixed strategy for combating racism; namely, the acknowledgement of racism and its implications coupled with a human rights offensive based on the combination of the individualistic model of nondiscrimination with special rights for disadvantaged groups, such as self-government rights for national minorities, polyethnic rights and special representation rights designed to increase the political participation of disadvantaged groups. Drawing on Adorno and Cohen, Petrova examines the denial of racism at the individual psychological and state ideological levels. Denial manifests itself as denial of the suffering of the victims of racism, through the existence of attitudes in individuals and society, which make this suffering impossible, and the existence of practices of institutionalised racism. Although generalised awareness of the denial of racism is crucial, it must be accompanied by anti-discrimination laws and policies designed to provide legal redress to individual victims of discrimination, to tackle the structural causes of discrimination and to empower disadvantaged groups. By examining the analytical and empirical usefulness of the concept of groups rights and discussing the limitations of Kymlicka’s ‘enclave-multiculturalism’ in light of the struggle of the European Roma, Petrova concludes that despite the risks associated with the group paradigm (ie essentialism, false unity, reification of culture, suppressing intra-group differences and so on), the notion of group rights can nonetheless be a useful tool in the struggle against racial discrimination. Evidently, the struggle against racism and racial discrimination has still a long way to go. Controlling hate speech in cyberspace and hampering the formation of ‘electronic communities of hate’ is a new and difficult challenge. As Fernandez Esteban observes, the internet is a distinctive medium of mass communication and conventional anti-hate laws are difficult to apply to it. She contrasts USA’s nonregulatory approach to control internet hate speech with the European soft-regulatory mode centred on the exchange of information, clarification of the potential liability of Internet provides, encouragement of self-regulation among providers, filtering tools and hot lines. In addition, whereas in the USA online intermediaries are not held to be liable for information originating with a third-party user of a service, the EC Directive 2000/31 on E-Commerce states that host service providers could be held liable for damages if they were aware of facts and circumstances which render the illegal activity apparent, and did not act expeditiously to remove the illegal material. Securing the states’ active involvement in the struggle against racism is another familiar challenge. Boven argues that the enactment of comprehensive antidiscrimination legislation in the criminal, civil and administrative fields, the adoption of special measures to promote equality, the establishment national institutions, commissions or other appropriate bodies to promote equality and the provision of effective resource procedures to victims of racial discrimination all are effective means of combating racial discrimination. Although Boven’s account could be criticised for being overoptimistic about the willingness and capacity of the state ß The Modern Law Review Limited 2002

643

The Modern Law Review

[Vol. 65

to promote equality given its track record of sponsoring and/or shielding racist practices and attitudes, Boyle and Baldaccini rightly remind us that the international human rights regime has been built upon such contradictory foundations. International human rights approaches have struggled to persuade states to accept international supervision in the implementation of non-discrimination commitments, but they have, nevertheless, succeeded in establishing a clear prohibition on racism as state ideology and the practice of all forms of racial and ethnic discrimination. By so doing, they have contributed to the transformation of law into culture. An example as to how law can become culture or can foster ‘common multicultural cultures’ at the national level is provided by Chalmers. Chalmers offers a rich and sophisticated analysis of the context, scope, background pressures and the opposing visions of EC Directive 2000/43 on implementing the principle of equal treatment irrespective of racial or ethnic origin. The directive combines both the ‘liberal’ and ‘multicultural’ or group-oriented models. The influence of the multicultural model can be seen in: Article 5 of the Directive which allows the Member States to maintain general or specific measures to prevent or compensate for disadvantages linked to racial or ethnic grounds; the expansive material scope of the directive; the prohibition of indirect discrimination; the imposition of a wide range of duties upon the state for securing the principle of equal treatment; the broader locus standi and the partial reversal of the burden of proof in cases other than criminal procedures and those where the court has investigative powers. However, the co-existence of these two models within the directive creates tensions and ambiguity, and a crucial limitation of the directive is that it does not cover difference of treatment based on nationality and migration status. In an attempt to go beyond these models, Chalmers blends Parekh’s normative political theoretical insights with European integration theory, thereby arguing that the institutional peculiarities of the EU coupled with its deep pluralism make it an ideal site for intercultural evaluation. Intercultural evaluation requires cultural communities to evaluate and reconsider their own practices in light of the claims and practices the other culture(s). On this account, the European Union should not strive to create a multicultural common culture, but its role should be confined to policing the rules of the game for the process of intercultural evaluation played within national arenas. Chalmers’ vision of Directive 2000/43 does not concur with McCrudden’s assessment that the enforcement and remedial provisions of the directive demonstrate a strong preference for the individual justice model and generalised unease about the wholehearted acceptance of a group justice model or equality as participation in the racial equality context. McCrudden explores the link between the perceived aims of anti-discrimination law and the enforcement and remedial structures that are thought to be both appropriate and effective. These relate to three different conceptions of equality: the individual justice model, the group justice model and equality as participation. The individual justice model has a liberal pedigree, prioritises equality of opportunity and is confined to retribution for individual wrongs. The group justice model, on the other hand, seeks to address deep-seated structural inequalities, prohibits indirect discrimination that cannot be objectively justified and provides group-based remedies. Finally, equality as participation aims at mainstreaming equality in public policy and increasing ‘the voice’ of disadvantaged groups. Although the group justice and equality as participation models do not supplant, but they supplement, the individual justice model, participative approaches are almost entirely absent in international law. Using these models, McCrudden shifts his attention to international and European norms concerning enforcement structures and remedies, including the UN Basic Principles and Guidelines on the right to a remedy and reparation, adopted

644

ß The Modern Law Review Limited 2002

July 2002]

Reviews

in April 2000. He argues that there is a growing willingness to challenge the idea that rational remedies are appropriately left to national discretion and the international community is increasingly systematising the appropriate remedial armoury that needs to be made available for redressing human rights violations. But although there is a growing visibility of the group dimension, the individual justice model still predominates in these debates and the third model of equality, that is, equality as participation is largely ignored. Undoubtedly, equality is both an open-ended project and an essentially contested concept. Although broad consensus about the meaning of equality, the mechanisms for its effective realisation and the desirable model of equality that anti-discrimination law should implement will continue to be elusive, it is crucial that the conversation continues. To this end, Discrimination and Human Rights makes an important contribution. Theodora Kostakopoulou*

John Monahan et al, Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence, New York: Oxford University Press, 2001, 197 pp, hb £29.50. Rethinking Risk Assessment describes the findings of a major research project concerning connections between mental disorder and violence. The MacArthur study is set to become the gold standard for research in this area; indeed, the size of the study – 1,000 mental health inpatients followed up during their first year after discharge – and the care with which it was undertaken mean that it is unlikely to be replicated in the near future. The team involved in the study have already described their findings in detail in a number of published papers. This volume collates the most significant of these findings and relates them in an accessible fashion. The study might be thought of as rethinking risk assessment in two ways. First, it challenges a number of myths which surround the relationship between mental disorder and violence. Some of these are public myths – believed by the general public but not by those familiar with earlier research: an example is the finding that the mentally ill are no more likely to be violent than are members of the general population. It is no surprise that this finding is broadly confirmed by the MacArthur study. The level of detail of the project, nonetheless, enables the authors to paint this picture of symmetry with a little more nuance, highlighting the interrelation between mental disorder, substance abuse and environment. The sample of discharged patients who were not substance abusers was no more likely to be involved in a violent incident than were other individuals living in similar neighbourhoods. Overall, however, discharged patients were more likely to be substance abusers than were members of the general population, and this correlation appears to contribute to a slightly greater rate of violence among such patients. A finding in the previous literature which is probably less well known concerns the relationship between violence, mental disorder and gender. Surprisingly, it has emerged that rates of violence among those recently discharged from mental health treatment do not vary between men and women. Again, the MacArthur study broadly corroborates this while refining our understanding. Male/female rates of violence during the whole one * School of Law, University of Manchester. ß The Modern Law Review Limited 2002

645

The Modern Law Review

[Vol. 65

year follow up were similar, but men’s violent acts tended to be more serious and were more likely to involve strangers as opposed to intimates. Some of the myths challenged by the MacArthur study are probably held by the clinicians who make risk assessments as well as by the general public. One example is the belief that female dischargees are less of a risk than males. The study may also disabuse clinicians of the presumption that diagnosis of a major mental disorder is correlated with violence: the MacArthur study finds that it is not – those with ‘other’ disorders, such as personality disorder, have a greater propensity for violence, and schizophrenics are less likely to be violent than depressives. Nor do delusions appear to be a useful predictor of violence. As well as challenging myths, the work of Monahan and his co-authors rethinks risk assessment by developing a more rigorous actuarial model than has previous work in this area. The picture to emerge from the analysis of risk factors is one of complexity. As the authors put it – and this, they suggest, is a lesson which holds for violence generally, not just for that committed by the mentally disordered: Our data are most consistent with the view that the propensity for violence is the result of the accumulation of risk factors, no one of which is either necessary or sufficient for a person to behave aggressively towards others. People will be violent by virtue of the presence of different sets of risk factors. There is no single path in a person’s life that leads to an act of violence (p 142).

The authors therefore develop actuarial models based on iterative classification trees, which stress the interaction of different factors rather than treating them independently. Unimpressed by the predictive power of one such model, they construct a further nine different ones. Combined, these multiple models enable the classification of the individuals in the study into different levels of risk, varying between a one and 76 per cent probability of violence within 20 weeks of discharge. Against this picture of complexity, however, there is also a more positive message. In some cases, only a few risk factors need to be therapeutically managed for there to be a significant decrease in the risk of violence. There is no doubt that this is an impressive piece of research. But as well as rethinking risk assessment, will it also revolutionise it? The multiple model is complex, but the authors hope to develop software which will make it a practical tool for decision-makers. It must nevertheless be admitted that doctors are often suspicious of actuarial models, preferring to rely on clinical judgment. To support this preference for judgment over algorithm, it is often argued that statistics cannot tell us anything about the individual case, or that some individuals are so unique that they escape the reach of the data used to build the statistical model. These complaints are well known; it should also be well known that in most domains of medical decision-making, actuarial models out-perform clinical judgment. Monahan et al, doubtless aware of likely objections to any attempt to replace clinical with actuarial decision-making, are cautious about selling their model as a magic bullet for risk assessment. They suggest that the model is a tool to support clinical judgment, while urging further research on how and why clinicians feel it necessary to modify actuarial predictions. Presumably, too, it would be helpful to assess whether such modified predictions turn out to be more reliable than unmodified actuarial results. In the meantime, we can only hope that the impressive research reported in this book has the impact it deserves. Mike Redmayne* * London School of Economics.

646

ß The Modern Law Review Limited 2002

July 2002]

Reviews

Jenny Fleming and Ian Holland (eds), Motivating Ministers to Morality, Aldershot: Ashgate Press, 2001, xvi + 235 pp, hb £50.00. The title of this book calls to mind Harold Macmillan’s opinion that politicians should leave matters of morality to the bishops. Alliteration produces an attractive rubric for the volume, even if it does imply rather more than politicians are likely to deliver. The sixteen contributors to this book of essays, who are mainly based in Australian universities, seek to produce a ‘broader understanding of issues relating to political morality, ethical reform and scandal at the highest levels of government.’ All the essays were delivered as papers at the Australian Political Studies Association conference at the Australian National University in 2000. The chapters are grouped into five sections. Part one sets the scene, and includes an account by Lord Nolan of his work as the inaugural chairman of the Committee on Standards in Public Life. He notes that, even though that Committee is a typically British constitutional invention (it has no statutory basis and no legal powers), it has produced frameworks of behaviour for Ministers and others that have been implemented, on the whole, in the forms recommended by the Committee. That Committee, in my opinion, largely defused the crisis of confidence in the probity of politicians which reached its climax during the final years of the last Conservative Government, although the Labour Government’s associations with financial donors has again altered the public’s perceptions for the worse. Part two looks at the British Ministerial Code, and also has a valuable chapter by Mark Shephard on the Scottish Ministerial Code. He makes the vital point that both documents suffer from being too elastic, and thus leave too much to interpretation. It would be possible to make at least some parts of ministerial guidance more like legislation rather than codes of practice. It could be made clear, for example, what types of defined personal behaviour should lead to resignation. So much discretion is left to the Prime Minister in judging the conduct of colleagues against hortatory principles that doubts are cast over the determination of heads of government to obtain the highest standards. Diana Woodhouse’s typically engaging chapter in this Part rehearses instances of ministerial misbehaviour in a number of jurisdictions, and reinforces the point that I have just made. Unless Ministers actually break the law, she notes, there may be no sanction, especially after instances of financial impropriety. Her depressing conclusion is that Ministers are seldom motivated to comply with the morality of the constitution solely as the result of norms set in codes of conduct, rather than for reasons of political convenience. Part three has a chapter on the German Constitution and law on political parties, and one on Ministers’ personal advisers. The latter spells out many of the constitutional drawbacks inherent in the uneasy relationships between such advisers, civil servants, and Ministers, in which ethical questions will often arise. Perhaps those who argue for a new Civil Service Act (including the previous Secretary of the Cabinet, Sir Richard Wilson) need to concentrate rather less on permanent officials and rather more on a regulatory regime for non-permanent advisers. The chapters in Part four of the book evaluate various ethical watchdogs and investigatory bodies in Canada and Australia. None is considered to be entirely satisfactory, although the role of the media in publicising unethical behaviour of Ministers is praised. If Parliament does not adequately meet the challenge posed by such behaviour, the interests of journalists and of the public in rigorous investigatory journalism coincide. The final part of the book includes a chapter by Charles Sampford which shows how valuable can be advice from ethics counsellors or advisers in providing opinions before potential breaches of ethical codes occur. Such advice can prevent infractions ß The Modern Law Review Limited 2002

647

The Modern Law Review

[Vol. 65

from taking place, and can thus help to maintain or raise standards. It must be right that sole reliance on the possible exacting of political or even legal sanctions is not necessarily the most efficient way of enhancing ethics in government. I found this volume to be a useful source of comparative information and analysis. It is a pity that it includes no contributions from former Ministers or civil servants, for the experience of such constitutional actors has to be considered alongside the opinions of academics. That there is some overlap of coverage is unavoidable given the genesis of the work. The book has an excellent bibliography, but no tables of statutes or official papers. Rodney Brazier*

* School of Law, University of Manchester.

648

ß The Modern Law Review Limited 2002

Suggest Documents