Review

Author(s): Martin Shapiro

Review by: Martin Shapiro
Source: The American Political Science Review, Vol. 91, No. 1 (Mar., 1997), pp. 216-217
Published by: American Political Science Association
Stable URL: http://www.jstor.org/stable/2952320
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March 1997

Book Reviews: COMPARATIVE POLITICS

the extent to which core constitutional norms may be deemed

universal, and evaluating the potential for transplantations of
constitutional arrangements from one country to another and
for their successful spread beyond the nation-state.
ConstitutionalPolicy and Change in Europe, a collection of
essays that originated at an international conference held at
the Center for European Studies, Nuffield College, Oxford, is
a welcome addition to the vast recent literature on contemporary constitutional developments and trends. Other collections also combine contributions by prominent legal and
political theorists, and other works focus more thoroughly on
broad theoretical issues or detailed historical narratives. The
present collection nevertheless deserves special praise for the
sharpness with which it zeroes in on the pressing and
troubling constitutional issues of the day. By concentrating
on the influence of Western European constitutional practices on Eastern and Central Europe, and on often less than
apparent parallels and points of contact between Eastern and
Western Europe, the collection affords a generally crisp
insight into the evolution and adaptability of constitutional
concepts and practices as well as into their suitability for
purposes of supranational, national, and regional integration.
The contributions in the collection variously address
changes in the conception of constitutionalism, the evolution
of different constitutional systems or traditions, the major
constitutional trends and shifts in significant Western and
Eastern European countries, and the conceptual and practical difficulties surrounding efforts to constitutionalize certain
relationships in the context of the European Union.
It is remarkable how little direct influence U.S. constitutionalism has had on recent developments in Europe. This is
due, in part, to European rejection of the liberal procedural
conception of constitutionalism prevalent in the United
States and, in part, to the contrast between the status and
functioning of common law judges and those of their civil law
counterparts. As clearly outlined in the essay by Donald
Kommer and W. J. Thompson, the liberal procedural conception of constitutionalism evinces a strong preference for
the state as guarantor of fundamental rights rather than as
principal engine for realization of the common good. Accordingly, one might expect the liberal tradition to predominate in
European countries bent on distancing themselves from an
authoritarian past. This has not occurred, however, for, as
Nevil Johnson stresses in his essay, Europeans embrace a
more teleological conception of constitutionalism owing to
their stronger commitment to community and deeper commitment to state-promoted welfare.
Yet, America's lack of influence regarding judicial review
is paradoxically ultimately attributable to a convergence
between common law and civil law adjudication rather than
the obvious divergences among them. This conclusion
emerges from various essays in the collection especially from
Cheryl Saunder's succinct and incisive account of the evolution of the British constitutional system. Indeed, although
mistrust of judges and lack of judicial independence run deep
in the traditions of many European countries, recent disenchantment with politicians and the emergence of strong,
specialized, and politically independent constitutional courts
have strongly boosted judicial enforcement of constitutional
norms. As a matter of fact, some European constitutional
courts, such as the German and the Hungarian, enjoy sweeping powers that go well beyond those of the U.S. Supreme
Court.
The various essays in the collection range from primarily
descriptive accounts of particular constitutional changes to
rather ambitious

explorations

of larger theoretical

issues.

Among the latter, two essays deserve special mention be-

cause of the breadth and depth of their insights. The first is

Ulrich Preuss's essay on constitutional evolution in Eastern
Europe, in which he successfully blends his consummate skills
as a constitutional lawyer and political theorist to pinpoint
the central issues arising out of the recent constitutional
journey undertaken in Eastern Europe and to draw out their
larger implications for constitutionalism in general. Preuss
uses those recent experiences to stress the close relation
between constitutional politics and the consolidation of national identity in multiethnic polities. He also provides an
illuminating account of certain East European countries'
resort to constitutionalization of particular conceptions of
citizenship to deprive certain ethnic groups within their
borders of full political membership.
The second essay noteworthy because of its theoretical
scope is that of Dieter Grimm on constitutional reform in
Germany. Grimm, a judge on Germany's Constitutional
Court, not only provides an acute analysis of the constitutional dimensions of German unification but also draws on
recent events in Germany to map out a persuasive account of
the relationship among constitutionalism, politics, and democracy. Furthermore, Grimm sheds interesting new light on
the prospects for the success of constitutionalism within the
ambit of the European Union, given the "democratic deficit"
associated with its current governing structure. Contrary to
the prevailing belief that the problem could be solved by a
shift in power toward the European Parliament, Grimm concludes that the union's lack of a common language-and hence
of a unified media capable of molding a commonly grounded
public opinion-makes it unlikely that it will reach a level of
democracy commensurate with genuine constitutionalism.
Two other essays, each in its own way, serve to complement
Grimm's. Dusan Hendrych describes the use of constitutional
means to dissolve Czechoslovakia into two separate constitutional republics and addresses issues arising out of such
dissolution. While his essay lacks Grimm's theoretical scope,
it makes for interesting comparisons between constitutional
integration and disaggregation. For its part, the essay by
Gunnar Folke Schuppert on the prospects for a European
constitution furnishes a useful summary of various positions
on the issue and thus further situates Grimm's views within
the ongoing debate.
The remaining essays are generally informative, but a
couple of them leave something to be desired. This is either
because of a failure to convey the import of the constitutional
changes discussed to a reader unfamiliar with the tradition
involved or because of an overly schematic narrative with
unclear theoretical implications. Moreover, although the
discussion of individual Eastern European countries, which
concentrates on former Czechoslovakia, Hungary, and Poland, is quite good, the collection undoubtedly could have
benefited from a discussion of other countries with quite
different constitutional problems, such as Russia, Bulgaria,
and Romania. In the last analysis, however, these shortcomings are relatively minor, and the collection should prove
useful to both legal scholars and political theorists.
Courts, Law, and Politics in Comparative Perspective. By
Herbert Jacob, Erhard Blankenburg, Herbert M. Kritzer,
Doris Marie Provine, and Joseph Sanders. New Haven and
London: Yale University Press, 1996. 408p. $45.00 cloth,
$20.00 paper.
Martin Shapiro, University of California, Berkeley
Published shortly before Herbert Jacob's death, this book
could well serve as a memorial to his enormous achieve-

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Vol. 91, No. 1

American Political Science Review

ments. It will allow those who have offered a general course

on U.S. courts based on Jacob's Justice in America (1992) or
comparable materials to add a comparative dimension or a
companion course. In this volume there is an introduction,
conclusion, and a chapter summarizing his own work and that
of others on U.S. Courts by Jacob. Chapters on England,
France, Germany, and Japan by well-known authorities do
not slight constitutional law and courts but also provide basic
coverage of criminal, public law, and private law litigation,
including careful considerations of legal professions and legal
cultures. Clearly, great efforts have been made to maintain a
parallelism across the several national presentations. The
approach is appropriate for either a straight political science
or a "law and society" course.
This book is basically a text but not a dumbed-down one. It
incorporates the latest research concerns. It wears its sophistication lightly, but it is not a series of mere static descriptions
of court organizations, personnel, and procedures. Both law
and politics are taken seriously. Courts and law are treated
neither as wholly autonomous phenomena nor as only the
creatures of broader political forces. In the current jargon,
law and courts are treated as both constituted and constituting. Teachers who want to use the book as a kind of
institutional database for their own analysis may do so, but it
can also be used as a relatively free-standing view of the
relations among law, courts, and politics.
Although excellent at the level of description and innovative in the range of subject matter considered, the book does
not offer many original insights, but there are some. Kritzer
provides a particularly sensitive treatment of the vexing
question of whether the British courts are becoming more
activist vis-a'-vis administrative agencies and tribunals. The
whole volume usefully spotlights judicial review of the lawfulness of administrative action alongside our traditional
concern for constitutional judicial review, treating both as
central to judicial policymaking. The heavy emphasis on
lawyers will help push political science in a useful direction,
although all the contributors are much better about viewing
lawyers in the criminal trial process than about assessing their
crucial functions in judicial policymaking. While valiantly
sticking to the parallel and essentially descriptive tasks of the
other chapters, Blankenburg cannot resist some of the generally social democratic critical perspectives on German law
and courts of which he is a past master and which are
particularlyrelevant in the context of reunification. Provine is
excellent at tracking both the pro- and antijudicial activism
themes that vie with one another in contemporary France.
The chapter on Japan is peculiar. Following the current
literature, which he fully commands, Sanders gets beyond the
simplism that the Japanese do not litigate because of a deep
cultural commitment to harmony and takes the position that
courts do little as a result of deliberately avoiding litigation
regarding government policies. Yet, ultimately the chapter is
"reorientalized" as a hymn to a Japanese culture and structure of compromise, consensus, trust, and stability. Like the
old community study of Tijuana that missed the whore
houses, Sanders gives us a low crime rate without the Yakusa,
a nonlitigational auto insurance claims processing system
without the cartelized insurance industry colluding to undercompensate, and industrial relations without the raw government-backed economic coercion of the dozen dominant
conglomerates. If this is a law and politics study, it is politics
without power. For once a touch of critical legal studies
would have done some good. Interesting things about Japanese law and politics will be written when we learn to begin

from the premisethat Japanis a rightist,corporatiststate.

The importanceof the EuropeanCourtof HumanRights

and the European Court of Justice is a leitmotif running

through all the European chapters. By hindsight we can see
that an additional chapter on those courts would have been a
good thing, and course instructors would be well advised to
construct one on their own. Indeed, because of the distinctive
post-World War II growth of national and transnational
constitutional judicial review in Western (and now Eastern)
Europe, law and courts and comparative politics teachers
ought to consider a comparative courts or comparative
constitutional law of Europe course as an alternative to one
with a worldwide scope. Besides this book, a number of
recent journal symposia, books, and book chapters have
recently appeared (and a number of others will appear in the
next couple of years) that, for the first time, allow for a richly
detailed and relatively integrated European course concentrating on constitutional and administrative judicial review.
In my view, all the contributors pay too much attention to
criminal law and too little to government regulation, but all
the chapters do restore regulation to a central place in
political science, a place that it surely should regain in an age
so fascinated with "free" (i.e., regulated) markets. The
volume's inclination to treat civil litigation essentially as
litigation by small parties, and then to lump together litigation in which either government or corporations or both are
parties, has its up and down sides. Instructors will have to pay
special attention to sorting out such issues as repeat versus
one-time players as well as the conventional European
boundaries between public and private law, which tend to be
obscured or confused by this kind of lumping. The absence of
a bibliography is no doubt due to cost cutting, but one is
awfully useful in a course text. The footnotes make up in part.
Gendering the Middle East: Emerging Perspectives. Edited
by Deniz Kandiyoti. Syracuse, NY: Syracuse University
Press, 1996. 177p. $39.95 cloth, $16.95 paper.
As'ad AbuKhalil, California State University,Stanislaus
In the products of the culture industry in the West, Middle
Eastern women remain passive, subservient, and changeless.
Their oppression and exclusion are assumed, not researched
or documented. They sometimes serve as a backdrop to the
stereotypical depiction of the region, but their voices, like
those of the Persian-speaking women of the movie Not
WithoutMy Daughter are considered irrelevant. Fortunately,
women of the Middle East are no longer invisible in the
scholarly production of the West, although their stories are
often told indirectly, mostly through the accounts of anthropologists who interpret their worlds and words to Western
readers. Many of the studies of Middle East gender issues
have been conducted ?by anthropologists, sociologists, and
historians. Political scientists of the Middle East, with the
notable exception of Mirvat Hatem of Howard University,
have ignored issues of gender, perhaps believing that their
field is too serious to tackle a subject which only recently has
been partially incorporated into political science curricula.
This book contains a variety of articles with only the issues
of Middle East gender in common. The book, however,
should be titled "English Language Gendering of Parts of the
Middle East," because the rich literature on gender in
Arabic, Persian, Turkish, French, and Hebrew is largely
ignored. That is the major weakness of this otherwise informative and useful book. Nowhere is this weakness more
apparent than in the fine introduction by the editor, an
anthropologist by training. Kandiyoti attempts to draw a
general and thematic picture of the state of gender in Middle
East studies but fails to incorporate the significant body of

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