Issue 2 (2006)
Law and the Humanities: An Uneasy RelationshipIn 1930, Judge Learned Hand, widely regarded as one of the most distinguished judges in our nation's history, spoke to the Juristic Society at the University of Pennsylvania Law School. In his address, "Sources of Tolerance," he told his listeners "I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon, and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject." Hand's remarks assume three points that form the central focus of this essay. The first is that the study of law is either part of or is strongly connected to the humanities. The second is that the lawyer or legal scholar called upon to discuss and analyze legal questions cannot do so by looking merely within the confines of traditional legal materials: cases, statutes, and "books which have been specifically written on the subject" of law. Instead, he or she needs assistance and edification from other sources. The third is that those external sources of knowledge are to be found not in the natural sciences or the social sciences, but in subjects that we customarily call "the humanities." Hand is not merely assuming these things. He also presents himself to us as a wise jurist who has been influenced by the "great books" he has selected for our attention. Because he is himself familiar with each of the writers he mentions, he enjoys membership in a "republic of letters," the sort of membership that is necessary for anyone who wishes to "live greatly in the law." There was nothing particularly unusual about these assumptions in the early twentieth century, particularly coming from an elite member of the legal profession like Hand. Moreover, membership in the American republics of law and letters had run both ways. Robert Ferguson's important book, Law and Letters in American Culture, discusses the many late-eighteenth- and early-nineteenth-century American writers who had been trained as lawyers (and in many instances, had actually practiced law), including Charles Brockden Brown, Hugh Henry Brackenridge, Washington Irving, William Bryant, and James Fenimore Cooper. One might also think of Hand's contemporary, the Harvard Law School-educated poet Archibald McLeish, or, closer to our own time, writers ranging from Louis Auchincloss to Scott Turow and John Grisham.
The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination DiscourseIn September 1977, hundreds of African American parents and students picketed the Amite County courthouse in Liberty, Mississippi. Holding banners that read "End Sex Discrimination," they launched a month-long boycott of area public schools. The African American community of Amite County was protesting a regime of sex segregation conceived in the immediate aftermath of Brown v. Board of Education and implemented fifteen years later, when the Supreme Court established school districts' "affirmative duty" to abolish dual school systems for black and white children. When whites in many parts of the South threatened to shut down public schools rather than desegregate, sex segregation had offered a promising antidote to fears of racial "amalgamation." Now, it was African American families fed up with sex separation who kept their children home. Their story, and the legal battles fought in their name, are the focus of this article.
Toward a Theory of a Right to Health: Capability and Incompletely Theorized AgreementsOne would be hard pressed to find a more controversial or nebulous human right than the "right to health"-a right that stems primarily, although not exclusively, from Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and requires governments to recognize "the right of everyone to the highest attainable standard of physical and mental health." While activists, nongovernmental organizations, and scholars have made significant progress in promoting a human rights approach to health and the field of health and human rights more generally, the question of a philosophical and conceptual foundation-a theory-for the right to health has fallen through the cracks that emerge from an interdisciplinary intersection of medical ethics, international relations, international human rights law, health policy, health law, and public health law. International human rights law scholars working in public health and health policy have typically focused on government's binding legal obligations to promote and protect both public health and human rights. They have drawn on human rights to address public health issues, especially the HIV/AIDS pandemic. Although scholars in this field have, in the words of one academic, "developed a sophisticated understanding of civil and political rights," they "have failed systematically to examine the meaning and enforcement of social and economic rights." And while General Comment No. 14, issued by the UN Committee on Economic, Social, and Cultural Rights (CESCR), provides the most reliable report on the right to health, it too, by necessity and purpose, lacks a systematic philosophical grounding for the right to health. The few international relations scholars and practitioners who do focus on health issues have provided primarily three dominant frameworks for international health cooperation: national and security interests; domestic and global economic development; and international human rights. Human rights approaches have filled a "moral gap" in the international global health discourse left primarily by economic and geo-political governance frameworks for international health issues. But the human rights strategy has been only moderately effective, for example in efforts to control and mitigate the HIV/AIDS epidemic and to implement the constitution of the World Health Organization (WHO). Furthermore, international relations as an academic discipline has not focused on providing a theory-based in moral and political philosophy - of a right to health.
Revisiting the Question of French and American DifferenceMitchel de S.-O.-L'E. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy. Oxford: Oxford University Press, 2004. Pp. 382. $99.00 (cloth). Mitchel de S.-O.-L'E. Lasser's Judicial Deliberations is an ambitious, important, and innovative book, which adds greatly to our understanding of particular legal systems, of the ways in which differing configurations of discourse and institutional practice promote core rule-of-law values, and of comparative methodology itself. Beautifully written and wideranging in scope, it is likely to become a classic in the field. Lasser pursues three different, but interrelated goals, which I address, in turn, below. First, he describes judicial discourse in the French and American legal systems (as well as in the European Court of Justice (ECJ)) and does so in a way that significantly challenges and reworks the paradigm long established among American comparative-law scholars. Second, he argues that each system's judicial discourse (along with its ideological and institutional commitments) leads it to pursue (and follows from) its own distinctive solution to fundamental problems in democratic governance, including ensuring judicial accountability and promoting meaningful deliberation. Third, he reflects on the nature of comparative methodology and argues for the need to overcome comparatists' tendency to identify themselves as proponents of either similarity or difference.