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Yes, There is Such a Thing as Too Much Transparency

Ashley Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. St. L.J. 713 (2017).

In a world where secret meetings and resulting agreements seem particularly suspect, it might be tempting to think that the growing norm of transparency might keep the world a more harmonious place. Woodrow Wilson famously extolled the virtues of “open covenants of peace, openly arrived at….” Ashley Deeks, in her recent article, A (Qualified) Defense of Secret Agreements, asks us to think again of this norm and dictum. Her article is one I like a lot, and I hope others active in the study and shaping of international law and international relations do as well.

To be sure, secret agreements, Deeks reminds us, have done much to undermine international stability. The exposure of the Sykes-Picot Agreement—carving the Ottoman Empire into British and French spheres of influence with certain gains for Russia—remains good evidence among many in the Middle East that all past, current, and future interventions by US or European countries are driven by ulterior, territorial motives. Agreements between the Obama administration and regimes not particularly well-known for their strong human rights records have expanded the practice of extrajudicial killing through drones and other technologies. Additional contemporary examples might be the “Trump Tower meeting,” the “secret” US-Israeli agreement to broadly destabilize Iran, a covert agreement giving Russia free hand in Syria.

Yet Deeks also ably illustrates the usefulness and necessity of secrecy for the promotion of partnerships and policies that ultimately make the world safer. Her methodology centers around evaluating secret agreements’ objectives that are either consistent or inconsistent with the United Nations Charter as the U.S. has generally interpreted it. Arms control treaties are facilitated by the ability to disclose numbers and locations. Secret intelligence sharing arrangements are understandably so (and present less of a problem for democratic accountability) because they are built on already legally-sanctioned secrecy/classification laws in participating countries (the Five Eyes agreement among the United States, United Kingdom, Canada, Australia, and New Zealand plays a recurrent, illustrative role).

The most substantial contributions of the article are those of classification and analysis. Deeks identifies five major categories of secret agreements: intelligence cooperation, military cooperation, nuclear weapons issues, conventional-weapons-related use restrictions, and economic commitments. She assesses them for the discomfort they should or should not cause those ultimately concerned about the objectives of international institutions (taking the U.N. Charter as representative) and the necessity for cooperation and coordination in the international competitive states system.

Deeks is forthright about the methodological difficulties her project poses. Secret agreements are difficult to study because they are, well, secret. Yet it is because they are so obscure that Deeks’s contribution is so valuable. Disrupting what she concedes is an understandable stigma, she argues that it is possible to work through the circumstances under which secrecy is consistent with, rather than inconsistent with, democratic objectives and/or international stability. Deeks provides at the very least a hard-nosed effort at doing so with a payoff for scholars and policymakers alike.

Cite as: Sam F. Halabi, Yes, There is Such a Thing as Too Much Transparency, JOTWELL (February 15, 2018) (reviewing Ashley Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. St. L.J. 713 (2017)), https://intl.jotwell.com/yes-thing-much-transparency/.

Muslim China: Regulating Religious Resistance and Cooptation

In late October of 2017, China’s central leader Xi Jinping gave a speech in which he expressed a renewed campaign to “sinicize” religious practice under greater Party control. This call is part of a long history of ambivalence, repression and bureaucratization that has characterized the uneasy practice of religion under China’s formally atheist single-party state. But it this tactic of bureaucratization that most eludes outside understandings of the regulation of religion in China.

Into this relative void, Matthew Erie’s China and Islam: The Prophet, the Party, and Law presents a model of the contribution that legal ethnography can make to understanding not only the regulation of social life in contemporary China but also to a myriad of critical issues constituting the multi-faceted relationship of Islam to contemporary nation-states. As both a socio-legal and comparative inquiry, Erie’s ethnographic and scholarly investment over the better part of decade has produced a rich empirical account that speaks in a wide range of theoretical and disciplinary registers and offers value for an equally wide range of readers.

The focal point of Erie’s study is the city of Linxia located in the Hui Autonomous Prefecture of central China. Linxia has the distinction of being China’s only majority Muslim city, and has sat at the cross-road of Islamic engagement with China for centuries. Much of China and Islam gives life to the elusive concept of minjian (), which attempts to capture the myriad of informal legal norms and practices Hui citizens produce in iterative negotiations with the formal law of the state. At turns, minjian draws parallels to “civil society” or “customary law.” The lack of precise definition relates the constant and intertwined co-optation and resistance that characterizes Hui relationships to a formally hostile state. Erie shows the inter-relationship between competing concerns about ethics, morality and judgment as the Chinese Communist Party (CCP) attempts to manage Hui life through Muslim intermediaries who are often the products of state-run Islamic schools and employed as public servants. The complexity Erie reveals is one of “mutual access, information sharing, and suspicion.”

The tropes of opposition or assimilation that often define the limited global vocabulary regarding the political possibilities of Islam are shown by Erie to be insufficient for capturing either Hui views of the state or state views of the Hui. The Hui are the only ethnic group defined by religion in China, and the global diversity of Islamic legal practice is represented by their general association with the Sunni Hanafi school as they produce a variety of syncretic interpretations that Hui religious leaders invoke with the authority of formal religious law, or jiaofa ().

Erie pairs his sustained ethnographic engagement with life in Linxia with novel, and perhaps now singular, access to archival materials.1 In each chapter, he provides a historical backdrop for a particular aspect of the life of the law in Linxia. This approach allows Erie to show the contingency of state-society relations, but also the powerful legacy of the past. For example, he places the Bureau of Religious Affairs, one of the many governmental organs tasked with regulating religious practice, in the longer history of Chinese state practice of limited sovereignty granted to minority groups. The CCP’s creation of “autonomous” regions itself reflects this legacy, and explains the relative domination of the state in criminal law but its lighter presence in family law—as evident in the traditional Hui exemption from the one-child policy.

Each chapter of the book then explores the construction of minjian in a particular facet of Hui life. Erie’s background as a comparative property scholar is routinely on display as he grounds the relationships of different Hui and governmental actors in their contests over the ongoing development of Linxia’s public and private spaces. This architectural texture to Erie’s account expands to his discussion of parallel contests of clerical authority over proper ritual observation, a battleground that exhibits the dual demands put on Hui civil servants by a state that seeks to actively reduce heterodoxy.

China and Islam’s fourth chapter is particularly instructive for how the regulation of education is a decisive site for exploring the different priorities of state and civil society actors in Linxia. Traditional state-run schools teach standardized versions of Islamic legal theory and practice, and are now matched by privately funded institutions—many of which seek to improve Arabic fluency, not to improve religious piety but to produce graduates who can serve as effective commercial intermediaries on the China New Silk Road trade initiative. This chapter also gives great detail to Linxia’s place within transnational Islam, producing new interconnections with the larger world of Islamic practice, alongside disillusionment that foreign Muslims do not match the self-deprecating idealizations popular among some Hui.

Similarly, Erie’s chapter on marriage law gives logistical depth to the triangulated negotiations Hui women engage in with the state and the embedded patriarchy of Linxia’s minjian. The fluidity between Islamic and state courts as strategic forums for divorce litigation will be familiar to scholars of legal pluralism, as will the local specificity of views on bride price that technically violate both traditional Islamic and state law.

Scholars of private law are provided a chapter on the moral economics of Linxia, and its relationship to the burgeoning transnational practices of Islamic banking and finance. Pairing theories of gift giving with the incentive structures produced by tax law, Erie shows how a mutual desire for economic development gives rise to a culture of financial regulation that is “betwixt and between censor and celebration.”

A chapter on dispute resolution draws on the classic preoccupation of legal anthropology with varieties of adjudication as Erie maps the informal consultations that provide the pragmatic sinews of what he calls Linxia’s “matrix of interests and sources of law.” The notable character Old Dong, an illiterate but highly respected mediator, illuminates a system where formal law is dependent on social relationships but also renders legal decision-making often opaque to local citizens. China and Islam does not present any simple reifications of any of the actors analyzed, clearly showing how minjian can at turns be as oppressive as the state.

Erie achieves this remarkable act of mapping the reality of legal practice in Linxia while also recurrently placing it within the highly politicized discourse on Islam, as active within China as it is in many liberal nation-states. Erie is steadfast that the Islamic faith of the Hui does not produces irreconcilable antagonisms, but informs the pragmatic problem solving that always lies at the intersection of informal and formal law. That the Hui increasingly distance themselves from Uyghur Muslims both reflects the complexity of Hui identity within China and their inescapable embeddedness in what Erie calls the “global currents of fear” eagerly redeployed by the CCP. And it should be noted that much of the book was produced in a process that required very real risks by its informants.

There is also a trenchant challenge to many liberal critics of Islam never far from the surface of the book. The CCP engagement with the Hui actively questions presumptions about what authoritarianism means in China, and the political institutions in which Islam can thrive. But more so it provokes the thought that if the Chinese Communist Party can embrace the very same tropes of “terrorism” or “radical Islam” in service of its own interests that are used to justify the repression of Islam in democratic regimes, then this mirror image is truly an ugly one.

If there is any limitation to China and Islam, it is that few readers will likely posses all the fluencies required to delve fully into each aspect of Hui life Erie explores. The linguistic achievement of the book is no small feat in itself, drawing on data derived from sources and scholars working in Mandarin, English, Arabic, Persian and local dialects. It make use of an immense gamut of social theory throughout, and readers would be well served to engage first with those parts of the book that speak most directly to their interests. Though for anyone interested in how law operates in China, especially outside of its eastern urban corridors, China and Islam is simply a must read.

  1. There are a host of new concerns about renewed restrictions on ethnographic and archival sources for researchers in China. []
Cite as: Jedidiah Kroncke, Muslim China: Regulating Religious Resistance and Cooptation, JOTWELL (February 5, 2018) (reviewing Matthew Erie, China and Islam: The Prophet, the Party, and Law (2016)), https://intl.jotwell.com/muslim-china-regulating-religious-resistance-cooptation/.

A Newly Progressive Political Economy?

Sabeel Rahman, Democracy Against Domination (2016).

In Democracy Against Domination, Sabeel Rahman has written a book for our time: a serious intellectual effort to grapple with the problems posed by rising economic inequality and concentration of power, and the role of democratic ideas and processes in responding to these challenges. The book is wonderfully written, impressively broad as well as deep, and offers an original and interesting thesis—the idea that the concentration of economic power in the hands of a powerful few poses an existential threat to individual freedom, and that the solution to this problem lies not in elite-driven forms of “managerial government,” but rather in individual freedom itself. He argues, in other words, that the response to this increasing form of economic domination should be a call for new forms of economic policy and regulation driven and shaped by a highly popular, participatory form of democratic government which calls on the power of “the liberty of the ancients” (compare Stephen Breyer’s Active Liberty).

This puts the book firmly in the genre of what Jeremy Waldron has called, and Rahman himself labels, “political political theory.” Rahman links this theoretical or philosophical argument with a richly historical account of the role of populist movements responding to the “First Gilded Age” in the 1920 and 30s. He thus connects his call for a new form of progressive populism—or popular challenge to corporate power and privilege—to deep historical roots. In this way, his book is similar to another excellent recent book on a related topic, The Crisis of the Middle-Class Constitution (2017), by Ganesh Sitaraman. Together, one might in fact argue that Rahman, Sitaraman and others are contributing to developing a new—or at least renewed—form of historical-political political theory.

The book was on the top of my reading list in part because, like Rahman (and Sitaraman), I have been spending a significant amount of my time in recent months thinking about the challenge of rising economic inequality, and what it means for democracy and public law. Like other leading current progressive intellectuals, Rahman is right to point to the importance of corporate power as a threat to individual freedom, as well as individual equality. And I share Rahman’s view that we need to be attentive to the connection between economic power and democracy: economic inequality tends to undermine political equality and thus also democracy, and yet democratic processes are critical to our ability to combat the creation and misuse of certain kinds of market power. Looking outside elite-driven processes of democratic control and regulation thus seems one promising way to break this vicious circle. Rahman, in turn, points to this—and a concern to help build popular support for and trust in government intervention in the economy—as a key virtue to popular modes of democratic government in the economic sphere.

Unlike Rahman and Sitaraman, however, I am ultimately a ‘Chicago egalitarian’ (my first academic position was at the University of Chicago Law School). This means that I think I have more ingoing sympathy than he does for the role of managerial expertise, and markets, in responding to the problems he identifies. This also left me wanting to emphasize certain qualifications to the argument, as well as to ask several questions as I read the book … by happenstance on a recent flight from Chicago.

First, it seems important to emphasize that Rahman does not mean wholly to displace what he calls “managerial”—i.e. elite, evidence-driven—responses to today’s economic problems. Instead, he envisages a form of productive engagement between experts and democrats, which can motivate and push elite processes to respond to the problems of economic domination and inequality—but still retain many of the benefits of expertise and evidence-based policy. Thus, in chapter 6, he proposes a move toward more “structuralist” modes of regulation that do a better job than current practices of balancing normative, democratic, and expert elements. And similarly, chapter 7 talks about administrative procedural structures that could better balance these elements, for example by using participation in regulation alongside expertise, as Rahman suggests the Consumer Financial Protection Bureau did for much of its early operation. This may seem a quite obvious point to many readers, but in an age in which facts and expertise are increasingly being attacked by the populist right, for quite different reasons, it seems important to make this point clear.

Second, what is the scope in Rahman’s account for “managerial” government in times of crisis? Rahman averts to this issue in the introduction to the book but leaves its resolution for another day. But it seems one of the key areas where further debate is warranted, based on the intellectual structure and catalyst Rahman’s own account provides: Crisis, of course, is a potentially elastic and malleable category, and Rahman would surely not want a crisis-based exception to swallow his entire emphasis on democratically mediated and participatory approaches to economic governance. But—conceptually at least—there are also certain economic problems that call for an extremely rapid response to be effective. Think about the response of the Fed and US Treasury to the 2008 financial crisis: a delayed response to saving Lehman would have had no effect. Delaying fiscal stimulus or monetary measures designed to rally the economy would have meant that such interventions, when they did happen, were far less effective. Indeed, one of the key predictors of the success of stimulus in response to the 2008 crisis was the scale and timing of the response: economies that spent too little, too late, are still effectively in recession.https://wordpress.org/plugins/redirection/1 When Rahman points to the expansion of the technocratic capacity of the Fed as a problematic response to the crisis, I therefore wondered whether he might have done more to talk about the issue of timing – is this a problematic response if it is designed to increase the capacity of institutions to true crises, rather than ongoing economic management?

Third, and perhaps most important, when Rahman talks about “economic domination” does he have any limiting principle or case in mind? Clearly Rahman is right to go beyond contexts in which firms enjoy monopoly power in the product market when thinking about economic domination. Even competitive firms may have significant market power in the labor market, which thus gives them broad power to engage in ‘domination’—or what Rahman defines as the arbitrary interference with workers’ freedom. (P. 66.) But does this mean that all people employed subject to domination by their employers (including law professors, for example)? Does it matter how much human capital they have, or whether they are working in a competitive labor market?

Part of the answer may ultimately lie in whether, when he talks about “domination”, Rahman’s target is ultimately inequality, unfreedom, or a lack of basic human dignity: the three concepts are, of course, deeply interconnected but also distinct.2 If it is truly inequality we are concerned about, for example, domination will occur in almost all situations in which the marginal product of capital is higher than the marginal product of labor. In this context, domination may be less severe for high-skilled workers compared to low-skilled workers. But all workers will experience some degree of domination. (This was in fact the argument of many early 20th century economic progressives, whose thought Rahman so lucidly excavates.) The returns to capital have steadily increased, relative to returns to labor, during the 20th century,3, and thus it will be capital rather than labor that has the upper hand in modern employment negotiations.

If domination, in contrast, is a problem of arbitrary interference with individual freedom, not all workers are likely to experience this kind of interference: in a competitive labor market, employers who impose limits on worker freedom must pay a price for that interference. If they fail to compensate workers, many workers will simply leave and go to work for another employer. This also creates disincentives for employers to impose arbitrary limits on worker freedom—i.e. limits with no real value to the employer, or with benefits far outweighed by the costs to workers. For firms, only limits that have real economic value are worth paying for, and thus only those kinds of limits will be adopted in a competitive labor market. The same is simply not true, however, where the labor market is not fully competitive: firms can impose costs on workers in this kind of market, without being required to pay for it, and thus all workers will be susceptible to domination of this kind. This might also be one way of connecting the idea of domination to the longstanding emphasis of progressive economic thinkers on anti-trust law. But as Rahman notes in chapter 3, progressive-era thinkers also took a much broader view of the kinds of “structuralist” interventions that could be legitimate and appropriate as a means of combatting economic domination: they also emphasized the role of public utilities (or “stringent public oversight, requiring fair pricing and equal access” for firms producing social necessities (P. 119)), and forms of corporate governance that maintained a meaningful separation between corporate ownership and control.

Finally, domination could be understood in terms that combine a focus on autonomy and dignity. For many workers, for example, the imperatives of survival necessarily require that they engage in market labor. When individuals are working against a backdrop of economic coercion of this kind4, we might also take a much broader view of what counts as an arbitrary or unreasonable interference with their autonomy: any limit that undermines the capacity of individuals to enjoy full human dignity, or the capabilities identified by scholars such as

Martha Nussbaum and Amartya Sen (e.g. rest, play, privacy, emotional wellbeing, and control over their physical environment) would likely count as domination in this context. Rahman himself does not refer to the idea of human dignity, or capabilities approach, but he clearly has strong sympathies for it: the thick conception of agency and freedom he constructs from the ideas of Dewey and Brandeis, and then again in the closing section of chapter 8 on “Democratic Freedom,” has strong resonances with this kind of understanding. An understanding of this kind would also suggest that domination is extremely broad, but not universal, in the modern era: it occurs wherever employers impose limits on workers who are not wealthy, and those limits have the capacity to impinge on fundamental human dignity in the sense defined by scholars such as Nussbaum and Sen.

How one answers this question may also have some relevance for what we think the respective roles of different institutions are in responding to the problem: the great value of Democracy against Domination in this context, however, is that it causes us to look at these questions anew.

Rahman proposes both the creation of a new set of regulatory bodies capable of making the structuralist interventions we so urgently need today to address the 21st century version of economic domination and the kind of bottom-up democratic politics capable of generating and sustaining support for this kind of intervention. It is, in this sense, a work of both great pragmatism, as well as principle, and an important intellectual leap: in ways not seen since the progressive era, it helps bridge the gap between economic and democratic theory to propose a new—and exciting—form of (small and capital D) “democratic economics.”

  1. See e.g. Christina Romer and David Romer, What Ends Recessions?, 9 NBER Macroeconomics Annual 13 (1994). []
  2. See, e.g., John Rawls, Political Liberalism (1993). []
  3. See, e.g., Thomas Piketty, Capital in the Twenty-First Century (2013). []
  4. compare Robert L Hale, Coercion and Distribution in a Supposedly Non-coercive State, 38 Political Science Quarterly 470 (1923). []
Cite as: Rosalind Dixon, A Newly Progressive Political Economy?, JOTWELL (January 12, 2018) (reviewing Sabeel Rahman, Democracy Against Domination (2016)), https://intl.jotwell.com/newly-progressive-political-economy/.

Can Certification Marks Promote Health Related Goals?

Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health, in The New Intellectual Property of Health 257 (Alberto Alemanno and Enrico Bonadio eds, 2016), available at SSRN.

In the past months, there have been several interesting new books published on international and comparative intellectual property (IP). One of the books that has interested me the most is The New Intellectual Property of Health (Alberto Alemanno and Enrico Bonadio eds, 2016). This book tackles a series of important topics which relate to a variety of intersections between IP and public health. Its various chapters include topics related to plain packaging, investor-state dispute provisions, and the controversial notion of IP as investment. As an author of one of the chapters in the book, I am not providing a review of the book itself, but I would like to commend your attention to the chapter written by Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health. In this chapter, the authors focus on the possibility and the capacity of certification marks (marks that certify that products are made or embody a certain standard) to achieve health-related objectives by promoting healthy products. In particular, the authors analyse the role that certification marks play as carrier of certified information about the products and consider whether this information could be leveraged for health-related goals, by leading consumers to purchase specific products that could be considered “healthier” than others available in the market.

Leveraging Certification Marks for Public Health provides crucial and important guidance to scholars, who are engaged in the exercise of attempting to link distinctive signs (such as marks and geographical indications (GIs)) with public health (or other meritorious objectives). In my own chapter, I conclude that GIs do not necessarily promote the consumption of healthier products, although they can certainly increase the quantity and quality of information related to the products they identify. (GIs are often used to identify products which, when consumed beyond moderate quantities, can be quite harmful to health—such as wines, spirits, cheeses, and cured meats.) Chon and Fujiye, however, explore whether certification marks can be used as complementary, if not as alternative, to products’ mandatory disclosure and labelling requirements since these marks provide precise information to consumers related to the quality and other characteristics of the products.

The authors analyse some of the less explored channels of product regulation and quality control that relate to the governance of trademark law and products’ supply chain from inception to market, and observe how a system of Global Value Networks (GVNs) can be used to provide “smart” information to consumers through certification marks nationally and across multiple jurisdictions. In turn, if a system of GVNs can be used to promote smart information for products in general, it could then be leveraged to promote healthy products and health-related goals. In the chapter, the authors focus primarily on examples related to food, an area that has seen increasing attention in recent years, also due to several scandals, such as the sale of adulterated olive oil, fake eggs, and similar schemes.

Yet, while pointing out the promising effects of certification marks, the chapter also highlights the problems related to the current governance structure of certification marks, which includes to what extent consumers properly understand the information encapsulated in the certification marks, or whether this information can have a (positive) impact on consumer purchasing behaviours as a result. Moreover, as noted also by other scholars, most recently by Jeanne Fromer, The Unregulated Certification Mark(et), the chapter stresses the possible imperfection of the certification trademark system, in particular the lack of full transparency on certification standards and effective quality control of the products.

In particular, it is still not possible to fully rely on certification marks (nor on GIs) for a full disclosure of product ingredients, manufacturing steps, and even actual geographical origin of the products in their entirety. To the contrary, as in the example of the “organic” case study in the chapter, certification marks are at times based on unclear standards. Hence, they have become powerful marketing tools—consumers believe organic products are better and are willing to pay a premium price for them, even though the parameters for organic certification does not necessarily reflect much healthier regulations, and certainly the label “organic” do not always identify healthy food.

Still, unlike other scholars who have criticized certification marks as being subsidies and barriers to entry, while failing to be transparent or effective to promote the information that they are supposed to convey, Chon and Fujive conclude the chapter by emphasizing the potentials of these signs, when correctly leveraged, to promote health-related and other positive objectives. I fully agree with this position. More specifically, the answer to the fact that certification marks (as well as GIs) are today still imperfect tools to carry smart information as part as GVNs in the global supply chain does not makes these tools less valuable (and certainly these are no more subsidies or barriers to entry than other types of IP are). Instead, we should strive to perfect these tools, and make them more transparent and reliable for consumers. Again, this may not translate to consumers purchasing healthier food, but it can certainly translate to consumers having a larger set of accurate information about products in the market place—and I like that a lot.


Editor’s note: Professor Calboli contributed a chapter to The New Intellectual Property of Health, but was involved with neither the selection or editing of the chapter she discusses here.

Cite as: Irene Calboli, Can Certification Marks Promote Health Related Goals?, JOTWELL (November 3, 2017) (reviewing Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health, in The New Intellectual Property of Health 257 (Alberto Alemanno and Enrico Bonadio eds, 2016), available at SSRN), https://intl.jotwell.com/can-certification-marks-promote-health-related-goals/.

A Blueprint for the Global Microbial Commons

Legal battlegrounds have moved into the genetic realm. From genetically modified seeds to the altered gene sequence for strawberries, to the patent disputes over isolated DNA sequences and data mining of genetic information, and the associated data generated from germplasm. The Supreme Court rejected a farmer’s claim against Monsanto to the right of reusing genetically modified seeds in 2013. Former employees are in a dispute with UC-Davis over the altered gene sequence for strawberries. Gene editing technologies are subject to patents of contested ownership, but soon may be more readily available. Myriad loses some of its patent rights related to the BRCA1 gene and actively now seeks patents in data mining of genetic information. Data, genes, and law are in a predictable but perplexing confluence.

Professor Jerome Reichman is at the forefront of scholarship on this confluence with the publication of “Governing Digitally Integrated Genetic Resources, Data, and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons,” coauthored with Dr. Paul F. Uhlir of the National Academy of Sciences and Professor Tom Dedeurwaerdere. A humble jot cannot do justice to a 650-page tome, but as far as Things We Like Lots, this book is up there. It should be on the shelf of scholars and policymakers dedicated to genetic research and its legal regulation.

What is most appealing to me is the mix of law, fact, and policy. The authors identify a set of problems, engage with the relevant legal frameworks, and address several overarching policy challenges. Ever since the Supreme Court recognized the patentability of genetically altered organisms in 1980, patentable subject matter has expanded to include genetic materials broadly: gene sequences, methods of medical diagnoses, therapeutic techniques, and genetic testing. Gene patenting has made its mark on a range of practices from university research to medical practice. Congress has been largely inactive in regulating gene patenting although it has addressed some of the potential excesses through food and drug regulation, specifically in the domain of biologics. Courts, on the other hand, have addressed genetic patenting through numerous rulings raising the standard for patentability and proving infringement. These developments have been fruitful in shaping a policy of genetic patenting. But as Reichman and his coauthors show, these efforts are inadequate for two reasons.

First, judicial opinions and legislation are limited to the United States. They may serve as models for other jurisdictions, but they have little impact beyond that. A key problem is the sharing of genetic information across borders. Genetic research is an international phenomenon. Markets for gene therapies and diagnostics are global. A regulatory regime such as a commons has to function transnationally, and this requires treaties and international institutions. Some may argue that the World Trade Organization and the TRIPS Agreement are the desired institutions. But as these authors, as well as myriad other scholars, would point out, TRIPS is too protective of patents and leaves little room for variance across nation states. The Nagoya Protocol, however, provides a more appropriate framework for creating a global commons for genetic research and the sharing of data. Although developed in the context of plant biodiversity and agriculture, the Nagoya Protocol allows reuse of patented materials (for example through the protection of breeders and farmers using seeds), which is a rights regime that allows for sharing of other materials, such as germplasm or gene sequences.

Second, genetic research has changed significantly over the past decade. Initially, researchers were in the fields of biology and chemistry. Genes were chemicals; germplasms, organic matter. With advancements in computer and information technologies, gene research met big data with the laptop replacing the wet lab as the tool for research. Genomics, proteomics, and gene science involve the digitization of organic matter and chemicals. Matter as data allows for deeper analysis, identification of patterns, testing of alterations and mutations for designing more targeted diagnostics, therapies, and pharmaceuticals. The law is only now catching up with this transformation. While there is a jurisprudence on the intellectual property of genetic technologies and one on information and communications technology, scholars are only now examining in depth the merging of these two currents. How do the rules and policies combine especially when the pharma field has often supported protective patent rights and the software field has supported fewer rights. The intersection of genes and data creates a whole new field and new legal regime.

Reichman and his coauthors lay the foundation for this new regime. The book is divided into four parts. The first deals with the international regulation of genetic resources and the assault on scientific research. The second turns to the preservation of the public research function of genetic research after the Nagoya Protocol. The third considers the digitally integrated infrastructure for microbial data and information. Finally, the fourth presents a blueprint for a redesigned microbial research commons.

Two conceptual points stand out from this book; one is about rights, the other is about transactions. The creation of a microbial research commons demands a set of rigid intellectual property rights, which do not create barriers to those who want to use data for their own research purposes. This requires recognizing user protections under both patent and copyright laws. Genetic resources, whether in organic or data form, should be open to the public as naturally occurring substances. Genetic resources that have undergone inventive transformation may get some patent protection, but only enough to provide adequate rewards for the invention. Follow-on use and invention should not be foreclosed. Furthermore, in digital form, genetic resources are data and their arrangement, a database. Copyright law gives no protection to data and thin protection to databases. With digitized genetic materials, copyright and patent protection may exacerbate the problem of access by users. Limitations within these two areas of law, the authors note, should support the research commons as knowledge of gene sequences and their digitization should require more limited intellectual property rights.

Such a system of rights would facilitate the transfer and distribution of genetic materials in its varied forms. Whether as germplasm or as data, researchers, inventors, and users should have access to this information. Those who discover the genetic knowledge and those who transform it into databases, therapies, and diagnostics should not preclude others. Fair use, liability rules for infringement, and other protections will support the commons and the resulting communication and collaboration among research communities. Reichman and his coauthors present a detailed account of the path to the commons and what this ideal could look like in practice.

This book draws on the prior scholarship of the three co-authors. But the synthesis brings together these ideas in a fresh, coherent whole. Researchers, practitioners, and policymakers should read this book. Those interested in where the future of genetic research and big data lies will learn much from this well-written, if hefty, volume. Professor Reichman and his coauthors have opened up a new field for scholars to pursue and contribute to the knowledge commons.

Cite as: Shubha Ghosh, A Blueprint for the Global Microbial Commons, JOTWELL (September 29, 2017) (reviewing Jerome Reichman, Paul F. Uhlir, and Tom Dedeurwaerdere, Governing Digitally Integrated Genetic Resources, Data, and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons (2016)), https://intl.jotwell.com/a-blueprint-for-the-global-microbial-commons/.

Buddhism, Law and Comparative Law: the (Rebecca) French Connection 

Rebecca R. French, What is Buddhist Law? Opening Ideas, 64 Buffalo L. Rev. 833 (2015), available at SSRN.

Professor Rebecca Redwood French’s What is Buddhist Law? Opening Ideas is a major contribution to the nascent field of Buddhist legal studies and has the potential to advance our thinking about comparative law. In this review, I will highlight the article’s significance to these two areas of study.

Professor French notes that although there is significant writing on the legal dimensions of the Christian, Jewish, Islamic and Hindu religious traditions, little has been written on “legal concepts in the Buddhist tradition.” (P. 834.) Perhaps most significantly for readers of this blog, she points out that although some Buddhism scholars have written on “the Buddhist Law Code … very few have written on it from a legal vantage point.” (P. 834, note 3.) As the author of several important works in the field (including, On Buddhism and Natural Law  8 J. Comp. L. 141 (2013-2014)), as co-editor (with Professor Mark A. Nathan) of the collection entitled Buddhism and Law: An Introduction (2014) and as editor of the journal Buddhism, Law and Society, Professor French has done much to fill this gap.

The introductory chapter to Buddhism and Law: An Introduction provides a terminological distinction that can help orient our discussion. There, Professors French and Nathan contrast “Buddhist Law,” which refers to “monastic law codes,” with “Buddhism and Law,” which “alludes to the secular legal systems of countries that are Buddhist.” (Buddhism and Law, P. 4.) In this review, I subsume within the capacious term “Buddhist legal studies” legal academic writing on monastic legal codes and on the interactions between Buddhism and secular legal systems.

Professor French begins her article by setting out several reasons for developing this field of study. Consider first the reasons for better understanding Buddhist Law. According to Professor French, Buddhism has a detailed legal code and a long legal history that can be traced back to the founder (P. 835), and research by jurists can illuminate this aspect of the tradition. It is also important to study this legal code, Professor French argues, because the concept of law in Buddhism challenges the dominant modern understanding of law. According to her, the Buddhist concept does not focus on artifacts of positive law (“cases, rules, rights, judicial procedures, decisions and sanctions” (P. 835)). Instead, writes Professor French, the concept of law in Buddhism is “uniquely focused on the socialization of the individual to a set of rules that will help him or her operate within a community.” (P. 835.) This process of socialization affects the Buddhist practitioner’s day-to-day behavior, reduces conflict, diminishes the need for legal rules, and facilitates the pursuit of religious practices (meditation) and goals (enlightenment). (Pp. 835-36.)

Professor French adds to these arguments in favor of studying Buddhist Law several that justify scholarly attention to Buddhism and Law. She contends that scholarship on Buddhist cultures has largely ignored the legal texts of the relevant political states. This body of academic writing (which includes Buddhist Studies and Area Studies) has therefore neglected the influence of Buddhism on “the political and legal operations of these states.” (P. 838.) Professor French identifies pragmatic reasons for understanding this influence. She notes that many countries with significant Buddhist populations loom large in international relations and in the commercial and political interests of the United States. (P. 836.) There is, therefore, a strategic interest in understanding how Buddhism shapes the political and legal life of these states.

After identifying these reasons for undertaking Buddhist legal studies, Professor French undertakes a magisterial survey of relevant topics. In Part I of the article, she identifies the origins (Pp. 841-842) and objectives (Pp. 842-845) of Buddhist monastic codes, before distinguishing the relevant concept of Buddhist law from an overbroad definition advanced in the field of Buddhist Studies. The latter definition captures the whole of the Buddha’s teaching, including that which relates to “the nature of the universe, the position of human beings in it, reality, karma, nirvana and all of the other basic ideas of Buddhist philosophy.” (P. 845.) In Part II, Professor French identifies the number and types of Buddhist legal codes, and examines their organization and style. In Part III, she demonstrates that the legal codes do not exhaust the content of legal materials in the Buddhist canon. Professor French demonstrates that the Buddha’s observations on law can be found in “a wide variety of texts, proverbs, stories, sayings and homilies” (P. 866), and that other texts, including temple ordinances, royal proclamations and commentaries on the Buddhist canon also include discussions of legal norms. The article concludes with an overview of Buddhist Law and Buddhism and Law in South and Southeast Asia, East Asia, and North Asia and the Himalayan region.

It follows from the above discussion that Professor French’s article will be a cornerstone in the field of Buddhist legal studies, and is worthy of attention for that reason alone. The article is also important, in my view, because it advances the field of comparative law in three important ways. First, comparative scholarship on legal systems in Buddhist societies is necessarily incomplete if authors do not understand how Buddhism shapes those systems. Professor French’s survey of Buddhism and Law offers promising avenues for examining this influence.

Second, comparative law’s neglect of Buddhist legal codes results, in part, from a tendency in the legal traditions literature to caricature Buddhism. Professor French sees this tendency in the work of my esteemed late colleague, Patrick Glenn. According to Professor Glenn, Buddhism spread “in a non-political, non-institutional way, just telling people about the way of the world and achieving some kind of political consensus only in Tibet.” (P. 849, internal citations omitted.) Professor French’s article is an excellent corrective and a starting point for a more fruitful engagement with the Buddhist legal tradition.

Third, Professor French’s article has the potential to spark productive dialogues among comparative law scholars with a jurisprudential bent. As we have seen above, the concept of law in Buddhism contrasts with, and therefore contests, much of the modern positivist understanding of law. A similar challenge has been posed by some writers on Indigenous legal systems in Canada and elsewhere (see, e.g. John Borrows’ Freedom and Indigenous Constitutionalism). Indeed, in a wide range of contexts scholars are examining practices and concepts of law that do not rely upon the imprimatur of the state for their legitimacy or efficacy. As part of this flourishing body of scholarship, one can foresee productive comparative conversations between Indigenous law scholars and authors building on the firm foundations established by “What is Buddhist Law? Opening Ideas.” I, for one, intend to seek out such exchanges with enthusiasm and I anticipate drawing upon the abundant riches of Professor French’s article for years to come.

Cite as: Hoi Kong, Buddhism, Law and Comparative Law: the (Rebecca) French Connection , JOTWELL (September 6, 2017) (reviewing Rebecca R. French, What is Buddhist Law? Opening Ideas, 64 Buffalo L. Rev. 833 (2015), available at SSRN), https://intl.jotwell.com/buddhism-law-and-comparative-law-the-rebecca-french-connection/.

Private No More: Exposing the Praxis of Comparative Law for What It Is

I liked Privacy Revisited, not the least because Ronald Krotoszynski’s book – both explicitly and implicitly – lays bare and grapples with comparative law’s thorniest methodological problems. It is inspiring to see a colleague struggling so honestly and openly with these issues.

This might sound like curious praise. After all, this is a book about privacy law in a variety of jurisdictions and I have not said that what I most appreciate about Privacy Revisited is its masterful treatment of that confounding subject.  The reason for this is that Krotoszynski’s sweeping survey of privacy law in the United States, Canada, South Africa, the United Kingdom, and the European Court of Human Rights is as knotty as the subject itself.

For example, Krotoszynski chooses to largely frame the concept of privacy through its intersection with free speech rights – and not on independent theoretical terms. Privacy’s intersection with other liberties is an important facet of any broad engagement with privacy rights. And Krotoszynski’s book largely convinces me that the privacy-free speech constellation is a more-or-less universal problem for privacy law. (P. 183-84.) But the weight Krotoszynski gives this particular conflict expresses, at the book’s foundation, distinctly American values and priorities when it comes to thinking about privacy. Yet, Krotoszynski mostly requires the privacy regimes of the other jurisdictions in his study to portray their distinct approaches to privacy through that particular lens. What is more, Krotoszynski’s heightened interest in the conflict between privacy and freedom of speech – a conflict he ultimately resolves by fashioning the two liberty interests as the twin pillars of effective and just contemporary democracies – places him at some distance from the privacy concerns relevant to today’s IT-saturated, big-data age. (P. 181-83) I have argued1 that privacy advocates are ever-less concerned with the harmful publication of private information (and the resulting conflict with free speech rights) but are instead increasingly convinced that privacy interests are implicated merely when the state or private firms collect deeply revealing information about us – even in the absence of evidence that they have used that information to our detriment. Wholly independent of its use in a protected speech act (thereby setting up the clash that preoccupies Krotoszynski), privacy has shifted towards the concerns often associated with the “chilling effect” that results from the mere collection of personally-identifying information. In this paradigm privacy takes the form of protecting us from the collection of our personally-identifying information in the first place – not matter the use to which it is ultimately put. Are privacy rights and speech rights decoupling in ways that Krotoszynski’s study doesn’t consider?

The book’s emphasis on secretum sermonem cum nonetheless produces a rich but eclectic treatment of privacy law across five jurisdictions. The chapter on the United States treats quite a lot of the Supreme Court’s First Amendment cases with only passing references to the Fourth Amendment and Substantive Due Process. The chapter on Canada fuses privacy and human dignity into a single concept. The relationship – theoretical and practical – between these distinct bases for expressing human liberty is not fully resolved. This viewpoint carries over to the chapter on South Africa in which Krotoszynski mostly substitutes the Constitutional Court’s jurisprudence dealing with “dignity, equality, and freedom” for its more specific privacy jurisprudence. The chapter on the United Kingdom is an immensely insightful treatment of the nature of judicial power in English law, a survey made necessary by the apparent dearth of English privacy law, which the judiciary has been loath to champion. The chapter on the privacy jurisprudence of the European Court of Human Rights serves primarily as a vehicle for pointing out a surprising degree of consensus between the United States and Europe on the issue of privacy. This is the book’s most systematic and convincingly delivered chapter, but is it a direct critique of James Q. Whitman’s celebrated divergence thesis? Krotoszynski does not say.

The book’s diversified consideration of privacy leads me to what I view to be its greatest merit. I loved the book because it is such a smart and dynamic engagement with comparative law’s current malaise.2

It turns out that it is really hard to get a socio-legal construct – such as privacy – to hew coherently to a single conceptual framework when working across a number of different jurisdictions and societies. As I have written elsewhere: “There is no privacy. There are only privacies.”3 Krotoszynski agrees:

[W]e should reject totalizing and universalist ‘institutionist’ claims about privacy as both a legal and cultural phenomenon. Privacy law differs among and between legal systems because privacy, perhaps more so than most areas of law, invariable reflect very local cultural understandings, traditions, and beliefs. (P.183-84.)

And with that problem exposed, Krotoszynski thrusts us directly into one of the discipline’s most stubborn questions. Should comparatists pursue deep analyses of the law in its context in relatively few jurisdictions? Or should we fly above the clouds with the functionalists? Krotoszynski wants to know. He agonizes over this damnable choice. And heroically (or is it desperation) he does both.

On one hand, he tells us that the different terminology about privacy used in different jurisdictions “reflects deep socio-jurisprudential commitments, not mere accidents of legal drafting” and that the concept of privacy “retains tremendous cultural, legal, and political salience.” (P. 11.) In recognition of this fact Krotoszynski devotes the opening sections of each chapter to an admirable consideration of some facet of the context of privacy rights in each jurisdiction. It is a revelation, for example, that he urged us to see that privacy rights in the United States are conditioned by a “general distrust of government and government institutions.” (P. 22-29.) It is equally illuminating that he urged us to understand that privacy rights in South Africa are conditioned by the post-Apartheid system’s desire to “differentiate South Africa’s exclusionary past from its inclusive present (and, hopefully, future).” (P. 111.) And it is productively insightful that he urged us to see that the absence of a general privacy right in the United Kingdom is a product of English legal culture and the distinctly “limited sphere for judicial policymaking” it tolerates. (P. 135.) There is this and much, much more of what comparative lawyers call “contextualism” in Krotoszynski’s book.

On the other hand, he does not turn away from the functionalist ambition of using his comparative law survey to point toward a “comprehensive and effective transnational understanding of privacy.” (P. 3.) Krotoszynski claims to see striking transnational “consistency” if not the open pursuit of “convergence” in the Supreme Court of Canada’s privacy jurisprudence, which seems to “borrow freely” from German and European Human Rights law. (P. 70.) True to functionalist form, Krotoszynski argues that the convergence of global markets and increased international interaction will facilitate and, ultimately, require the emergence of a transnational consensus concerning privacy.

I genuinely admire Krotoszynski for this effort. In this wide-ranging work we see the challenges, shortcomings, and promise of these competing approaches to comparative law. Who among us hasn’t struggled with this, the comparatist’s fundamental dilemma? Too few of us are willing to live that struggle so openly and honestly as Krotoszynski. He has given us a compelling invitation to keep hammering away at that methodological and theoretical problem. Whatever we might mean by privacy, Krotoszynski isn’t going to let us mask our disciplinary challenges. I like that. I like that a lot.

  1. Russell A. Miller, A Pantomime of Privacy: Terror and Investigative Powers in German Constitutional Law, Wash. & Lee Pub. Legal Research Paper Series No. 2017-5 (2017), available at SSRN). []
  2. Mathias M. Siems, The End of Comparative Law, 2 Journal of Comparative Law 133 (2007). []
  3. Russell A. Miller, Introduction – Privacy and Power: A Transatlantic Dialogue in the Shadow of the NSA-Affair, in Privacy and Power 1, 4 (Russell A. Miller ed., 2016). []
Cite as: Russell Miller, Private No More: Exposing the Praxis of Comparative Law for What It Is, JOTWELL (July 21, 2017) (reviewing Ronald J. Krotoszynski, Jr., Privacy Revisited: A Global Perspective on the Right to Be Left Alone (2016)), https://intl.jotwell.com/private-no-more-exposing-the-praxis-of-comparative-law-for-what-it-is/.

Developing a Matrix for Intellectual Property as Subject of International Law

Intellectual property disputes implicating diverse and seemingly unrelated international legal regimes have become more frequent, acrimonious, and high-stakes. This trend has spawned an enormous academic literature endeavoring to rationalize the approach various interpretive authorities take to intellectual property disputes. Graeme Austin and Larry Helfer’s Human Rights and Intellectual Property offered a framework by which to resolve claims for or against intellectual property protection based on human rights arguments; Susy Frankel has extensively assessed the application of customary international rules of interpretation in furtherance of a rationalizing approach to complex IP conflicts; and Jerry Reichman, Paul Uhlir, and Tom Dedeurwaerdere have developed comprehensive approaches to questions arising at the intersection of international research efforts and potential IP-related obstacles. Edited volumes by Margo Bagley and Ruth OkedijiCarlos Correa and Xuan LiDaniel GervaisShubha Ghosh and Robin Paul MalloyChristopher May and Susan Sell, and Peter Yu similarly provide useful and targeted analyses of discrete IP-areas (e.g. patent and copyright) to particular contexts (e.g. development, disability, and innovation). The aforementioned works are by no means exhaustive but it is fair to say that none attempts to undertake the quite complex, more comprehensive question of intellectual property law as a fragmented part of the broader international legal order.

Enter Henning Grosse Ruse-Khan’s The Protection of Intellectual Property in International Law. Ruse-Khan, University Lecturer and Fellow at King’s College, Cambridge applies the broader theoretical elaboration of international law’s fragmentation to intellectual property disputes so as to provide a more comprehensive approach to issues raised by intellectual property’s overlap with discordant international legal regimes other scholars have tackled through narrower lenses. (P. 4.) This book is one I like a lot, and I hope others active in the study and shaping of international intellectual property law do as well. Intellectual property, Ruse-Khan reminds us, was a forerunner of the kind of fragmentation more systematically analyzed by the International Law Commission after 2006: “IP is . . . addressed, from diverse perspec­tives, in the United Nations Organization for Education, Science and Culture and the Food and Agriculture Organization of the United Nations as well as in the context of the Convention on Biological Diversity and the World Health Organization” even before trade and investment started playing their inevitably influential role. (P. 8.)

Ruse-Khan’s book is particularly timely in light of a recent spate of international intellectual property disputes. Last year, an arbitration panel issued a decision rejecting Philip Morris International’s claim against Uruguay for adopting tobacco packaging regulations that stripped its ability to use its trademarks to market more than one variety per brand family and required 80% of cigarette packages (along with their distinguishing logos and images) to be covered with graphic warnings. That dispute followed others involving pharmaceutical firms pitted against Brazil, India, and South Africa in both national and international dispute resolution fora, governments claiming insufficient levels of intellectual property protection and enforcement against one another; and, all around, new bilateral and multilateral agreements steepening international law’s influence into domestic intellectual property protection regimes. While multifaceted, these disputes may be particularly complex because they require application of rules drawn from ostensibly distinct and self-contained international legal regimes. The PMI-Uruguay panel, for example, used the World Health Organization’s Framework Convention on Tobacco Control as part of its analysis of a dispute that originated in a bilateral investment agreement between Switzerland and Uruguay.

In Chapter 3 of the book, the heart of Ruse-Khan’s contribution, he provides a framework for evaluating these high-profile disputes. There he argues that cohesive approaches to intellectual property disputes can be logically ordered from the systems analysis he provides in Chapter 2: “technical– legal tools can derive from the rules or rule- systems whose relationship is to be determined” so that many disputes will implicate specific provisions of applicable law “(eg a Berne Convention rule that regulates the possibility of inter- se agreements such as the WIPO Copyright Treaty . . . or a CBD norm that is made subject to the interna­tional rules on the protection of IP).” (Pp. 31-33.)  Where “alternative” or “other” systems bear upon IP disputes, more broadly applicable rules of international law like the Vienna Convention on the Law of Treaties’ bias in favor of harmonization or the WTO Appellate Body’s approach to defining conflict can effectively order the rules adopted from outside lex specialis circumstances i.e. where applicable treaties or rules do not by their terms resolve IP disputes.

Indeed, as another reviewer has noted, Ruse-Khan’s contribution might be better understood as a systematic analysis of conflict-of-law and conflict-of-norms principles developed and then applied to the subject of intellectual property under various, sometimes competing, international legal regimes. It is not clear, for example, that even applying the useful framework he invents (as he does in Chapters 4-12) results in the “protection” of intellectual property.  Yet what does result is a rational approach by which stakeholders, interpreters, and arbiters may manage – with cohesion and legitimacy –  the increasing number and severity of international disputes over intellectual property.  As those disputes continue to invite application of rule-systems not contemplated by their conscientious designers nor their passive interpreters, Ruse-Khan’s analysis will provide a premier and precise tool.

Cite as: Sam F. Halabi, Developing a Matrix for Intellectual Property as Subject of International Law, JOTWELL (June 27, 2017) (reviewing Henning Grosse Ruse-Khan, The Protection of Intellectual Property in International Law (2016)), https://intl.jotwell.com/developing-a-matrix-for-intellectual-property-as-subject-of-international-law/.

An Imperial Court in a Post-Colonial Context

In this age of Brexit and the existential threats facing the United Kingdom, I find myself drawn to literature addressing the legacy of the British Empire. And in their new article, Constitutional Comparisons by A Supranational Court in Flux: The Privy Council And Caribbean Bills of Rights, Tracy Robinson and Arif Bulkan analyze a vestigial British imperial court, the Judicial Committee of the Privy Council (JCPC), in a post-colonial context. Law professors at the University of the West Indies, the authors examine the JCPC’s approach to constitutional interpretation through detailed analysis of its cases addressing Caribbean bills of rights. The article succeeds in highlighting significant questions about the JCPC’s legitimacy and function and provides insight into the very serious challenges presented by judging from a distance in a changing jurisdictional landscape.

The Judicial Committee of the Privy Council is a relic of the British colonial empire. During the imperial period, it evolved into the final court of appeal for roughly one quarter of the world’s population. Now, it hears appeals from a tiny number of former colonies, current UK territories, and Crown dependencies. The Anglophone Caribbean is at the core of the JCPC’s workload: In addition to the six overseas territories in the region, eight of the twelve independent Caribbean states send appeals to the JCPC, having retained its services following decolonization. Yet, rather than acting as an individualized apex court to the numerous intermediate courts over which it has jurisdiction, the JCPC instead has developed into a transnational or supranational court; its binding precedent can be applied across national jurisdictions. Of the 500 or so “Privy Counsellors” (the British cabinet members, politicians, clergymen, etc.) that advise the Monarch as members of the Privy Council, the Judicial Committee is staffed by a judicial subset comprising justices of the UK Supreme Court as well as judges of the various courts of appeal in England and Wales, Scotland, and Northern Ireland. Judges from some Commonwealth countries are eligible to sit on the JCPC, but only a few Caribbean judges have been appointed as Privy Counsellors, and those who were appointed were rarely empaneled on JCPC Boards (the groups of three or five judges that hear cases).

As one can easily surmise from this snapshot description, questions about the legitimacy of this distant and disconnected court were bound to arise, and Robinson and Bulkan’s work certainly refreshes those concerns. But rather than engaging in theoretical discussions of independence and accountability, the authors provide a nuanced and fine-grained analysis of the JCPC by looking closely at its output. In detailing the process and content of judicial decision-making through case analysis, they demonstrate the JCPC’s penchant for judicial shortcuts and a “lassitude” (p. 411) that calls into question the court’s effectiveness. (Although they do not make any prescriptive suggestions, it is clear that they are skeptical about the future of the JCPC.)

The authors focus on the JCPC’s interpretation of Caribbean bills of rights—in particular, the role of the prefatory or introductory section to the bills of rights in many post-colonial constitutions. In these charters, a broadly written opening that guarantees many rights often is followed by more detailed provisions protecting specific aspects of those rights or allowing for certain exceptions. In addition, some constitutions include a redress clause, giving individuals the right to apply to court to remedy rights violations. These redress clauses vary in whether they expressly exclude or include violations of the rights referenced in the broad introductory section.

In evaluating the justiciability or the content of an introductory section to a constitution’s bill of rights, the JCPC looks to other bills of rights—comparing constitutions to derive meaning. The court relies on this comparative enterprise in lieu of other types of constitutional interpretation, such as reading the introductory section in light of other textual material within the same constitution. By comparing and classifying constitutions, the JCPC has systematized its approach to interpretation.

This shortcut comes at a cost, particularly when observed against the backdrop of the JCPC’s shrinking jurisdiction. For example, the authors describe how a category-creating precedent derived from one constitutional regime maintains its bite in other national contexts—even when the original regime is no longer subject to JCPC review and thus the precedent can never be revisited. This “fossilization of constitutional understandings” (p. 395) directly affects (and appears to stifle) the power and relevance of various rights provisions. In addition, the JCPC’s comparative endeavor has little methodological rigor, leading to obvious selection bias. And, most damning, the authors ultimately conclude that the systemization “reduces how much a judge needs to know to function” (p. 383), suggesting a certain judicial weariness with the entire endeavor.

The JCPC’s approach may make some pragmatic sense given that many of these “decolonization constitutions” were negotiated documents between colonial governments and the British government. But, as the authors point out, the constitutions’ legitimacy therefore derives “less from their founding and more from their stability and interpretation over time” (p. 388). And the JCPC’s comparative approach can undermine the vibrancy of the constitutional rights provisions. For example, in a case from Barbados, Boyce v. R. [2004] UKPC 32, the JCPC’s decision to evaluate “an older Caribbean bill of rights [Barbados’ 1966 Constitution] in light of newer ones inevitably generated a very restrictive interpretation of the former” (p. 391).

This article focuses welcome and deserved attention on a court and a region that are underrepresented in the comparative literature. The authors’ broader contribution comes through their careful attention to the court’s decisions: Robinson and Bulkan raise serious questions about the trade-off between judicial economy and judicial proficiency at the JCPC—a delicate calculation that is relevant to all courts.

Cite as: Erin F. Delaney, An Imperial Court in a Post-Colonial Context, JOTWELL (May 30, 2017) (reviewing Tracy Robinson & Arif Bulkan, Constitutional Comparisons by A Supranational Court in Flux: The Privy Council And Caribbean Bills of Rights, 80 Modern L. Rev. 379 (2017)), https://intl.jotwell.com/an-imperial-court-in-a-post-colonial-context/.

Dynamic Democratic Dialogue

In recent years, the cornucopia of academic commentary on dialogic constitutionalism (or cognate terms like democratic dialogue) has been one of the richest and most creative in constitutional theory and comparative constitutional law. The debate has benefited from celebrated contributions from some of the world’s best-known constitutional thinkers, as much as from fresh thinking by younger scholars. The current debate began as a response to the institutional innovation, and later as a theoretical discourse, within some Commonwealth countries that adopted parliamentary bills of rights, although arguably the embryo of the model has an older pedigree in the Commonwealth tradition (e.g., the “manner and form” provisions of s.5 of the Government of Ireland Act 1920 or s.29 of the Ceylon (Constitution) Order in Council 1946). The development of the dialogic model has since also engaged distinctive practical challenges of different global regions, from North and South America, to Europe, Africa, and Asia. Within its broad rubric therefore it has not only embraced both common law and civilian systems as well as the developed and developing worlds, but also found diverse theoretical articulations serving a wide range of quite different constitutional challenges and contexts. Professor Alison L. Young’s recent book, Democratic Dialogue and the Constitution, is the latest and one of the most rigorous contributions to this already highly sophisticated debate over dialogic constitutionalism.

For those for whom at least the more extreme claims of the two counterposed models of legal and political constitutionalism hold little attraction and practical utility, dialogic constitutionalism has an almost intuitive appeal as a modus vivendi. In forcing institutional parity and dialogue between the judiciary and the political branches—rather than the supremacy of one or the other—it seems to both meet the requirements of representative democracy and the protection of normative principles, when societies are confronted with legitimate and reasonable but deep disagreements over matters of constitutional significance. It empowers the judiciary adequately to make authoritative statements about the scope of constitutional rights, while simultaneously maintaining the role of legislatures as forums of democratic deliberation and decision-making. The dialogic model also enhances the scrutiny of elected executives, by demanding equal emphasis on parliamentary as well as judicial forms of accountability. In eschewing strong-form judicial review, it addresses the democratic deficit of legal constitutionalism (the counter-majoritarian difficulty), and in abjuring the untrammelled parliamentary supremacy of political constitutionalism, it accommodates liberalism’s counter-majoritarian principles in the protection of individuals and minorities. In short, it sets to work the ideal institutional model for the principled negotiation of constitutional disputes in democracies, whether over rights or questions of a more general nature.

Even though some of the initial excitement with the novelty of the model has receded with the realisation of its limitations over time, it continues to exert a powerful appeal on constitutional theorists and designers. This is so for a number of reasons, of which perhaps the most obvious is that dialogic constitutionalism allows us an escape from some of the more otiose abstract debates over the normative superiority of legal or political models, through an alternative model of constitutionalism that is not merely convenient but also highly normatively defensible.

But especially in the developing world and the international practice of post-conflict or post-authoritarian constitution-making since the end of the Cold War, after a lengthy period of doctrinal dominance of a very strong-form model of legal constitutionalism—and then increasing anguish over its many failures in application—democratic dialogue offers fresh avenues of thinking for constitutional design. Liberal legal constitutionalism’s underestimation of the power of local histories, politics, and cultures, explains at least in part the many miscarriages of radical attempted constitutional transfigurations in non-Western societies. The less prescriptive and more flexible model of dialogic constitutionalism, by giving equal attention to the political as to the legal, has the potential to better serve these societies by articulating a coherent theory which can inform rights protection and democratic deliberation, checks and balances, and help resolve the often-elusive question of the appropriate balance between constitutional rigidity and flexibility.

And at least for some who are skeptical of the aptness, and fearful of the consequences, of revolutionary constitutional transitions, the sense of balance, restraint, proportion, and deliberation that is implied by a dialogic mode of constitutional decision-making points to the great first-order virtue of constitutional politics that Edmund Burke, following Cicero’s idea of artifices officiorum, classically enunciated as ‘prudence.’ To simplify, the Burkean notion of prudence is essentially that constitutional questions are not only about legal principles, rights and duties, but equally importantly about political considerations of peace and order, and indeed contextually about the historical and cultural ethos of a society. In addressing the relation between (legal) idealism and (political) realism, Burke’s thought retains its crispness today because any sensible methodology of contemporary constitutional theorising must surely be equally and simultaneously attentive to both abstract norms as well as practical realities. By bringing the three branches of the state into dialogue rather than defiance, dialogic constitutionalism seems to promote prudence in defining, structuring, disciplining, and ultimately reconciling the relationship between law and politics.

Alison Young’s Democratic Dialogue and the Constitution begins with a deconstruction of some of the idler assumptions that serve the current debate, exposing the conceptual instability of existing theorizations of dialogic as well as legal and political models of constitutionalism. The central problem here is that it has become necessary to over-determine the distinction between legal and political models, so as to make space for the dialogic model in between. Her analysis demonstrates how this “runs the risk of either providing an artificial divide between extreme forms of legal and political constitutionalism, leaving a middle ground for democratic dialogue, or pushing all accounts of constitutionalism into the middle ground, subsumed into accounts of democratic dialogue.” (P. 32.) This suggests that “democratic dialogue is either ubiquitous or non-existent.” (P. 30.) The explanation for this, Young argues, is that we see the distinction between legal and political models as one of control: we seek to categorize a constitutional system as belonging to one or other model by looking to whether legal-judicial or political-legislative controls have the final say on constitutional issues.

Young rejects this misleading approach, asking instead the question whether dialogue is different because of its dynamic rather than static nature. That is, dialogue is distinctive because it draws upon the foundational assumptions and values of the other two models in a dynamic way, but accords either set of values an equal importance and neither a relative superiority. The critical distinguishing feature of the theory of democratic dialogue Young offers is that its starting premise is not control but institutional interaction. Assuming that institutional interaction rather than conflict is better able to protect both rights and democracy, Young’s account demonstrates how dialogue can draw on both legal and political models in determining when the relative power of the different values ought to prevail when institutions interact.

In establishing the advantages of democratic dialogue, Young elaborates two forms of ‘inter-institutional interactions’: ‘constitutional counter-balancing’ (guaranteeing roles for both judiciary and legislature in the settlement of constitutional issues while ensuring no override for either) and ‘constitutional collaboration’ (incentivizing judicial and legislative institutions to work together by drawing on their intrinsic strengths and weaknesses). The central merit of dialogic constitutional design is that constitutional counter-balancing facilitates constitutional collaboration between courts and parliaments, thus maximizing both rights-protection and democracy.

Perhaps the book’s forte is that it goes beyond the protection of constitutional rights (which has tended to dominate the existing literature) to discuss democratic dialogue as a general model of constitutionalism that serves such ends as participatory and deliberative democracy, checks and balances, and stability and evolution, providing as it does so an elaborate normative framework for democratic dialogue. Beyond the UK and European contexts that are then discussed in the last chapters of the book, it succeeds admirably – and with an impressive display of theoretical and empirical scholarship – in establishing democratic dialogue as: “a particular form of constitutional design; as a distinct method of protecting human rights; a theory which advocates a particular way in which institutions should exercise their powers when determining rights-issues; and as a means of providing an accurate description of constitutional reality.” (Pp. 33-34.)

Alison Young’s views are the product of many years of research, reflection, and writing on the major issues of constitutional theory and comparative constitutional law that are tackled in great length, depth, and texture in this book. Despite the clarity of her exposition, it is a work of huge complexity and nuance, which promises to reward a more unhurried reading than was the basis for this brief initial assessment. There is little doubt it will generate much erudite commentary in the future. It would certainly be too early to characterize the book as a culmination of her work, but this latest iteration is an extremely persuasive exposition of a very refined theory of democratic dialogue as a general and heuristic model of constitutionalism. As such it would likely become a much-cited and influential work, especially as the UK enters a period of major constitutional change if not upheaval surrounding Brexit. It remains to be seen, however, whether constitution-makers in the world beyond the West would have the imagination to engage with her important insights, and indeed, the mettle to jettison the depleted constitutional technology from the 1990s to which many are still wedded.

Cite as: Asanga Welikala, Dynamic Democratic Dialogue, JOTWELL (April 5, 2017) (reviewing Alison L. Young, Democratic Dialogue and the Constitution (2017)), https://intl.jotwell.com/dynamic-democratic-dialogue/.