RECENT LAW REVIEW ARTICLES OF INTEREST: ABSTRACTS

Franck, Thomas M. "Is Personal Freedom a Western Value?" 91 American Journal of International Law, 593-627 (1997).

The passage of, and subsequent efforts to implement, the 1966 International Covenant on Civil and Political Rights (first called for in the U.N.-sponsored 1948 Universal Declaration of Human Rights) has exacerbated criticism of the moral and political ideals wrapped up in the concept of individual autonomy. In effect, the Covenant requires societies to abandon practices that have served to limit the personal autonomy of their citizens, even when those limitations are ostensibly designed for the purpose of enforcing local communitarian values. This international pressure favoring the expression of individuality at the expense of local traditions has moved a number of critics to argue that such emphasis on individual rights constitutes a form of cultural imperialism, foisted on non-Western cultures by the Western powers and a heavily westernized Japan.

Franck responds to this argument in two ways. First he examines the history of the evolution of legal and social respect for the ideal of personal autonomy in western liberal democracies, with a special emphasis on the development of the principles of free exercise and anti-establishment of religion as specific aspects of that ideal, and freedom of conscience as a more general one. On this score, Franck points out that, even in Western cultures, respect for personal autonomy is really quite novel and quite recent. Second, Franck examines the forces behind the spread of recognition of the principle of personal autonomy into non-Western cultures, and concludes that this development has far more to do with the global sociological phenomena of increased industrialization and urbanization, with their concomitant demands for more effective communication, transportation, and education, than it has to do with any particular form of cultural imperialism. Those kinds of internal forces, whether they're deliberate policy goals or self-sustaining economic momentum, prove to be more effectively implemented in societies which tolerate more individual autonomy rather than less.

Osofsky, Hari M. "Domesticating International Criminal Law: Bringing Human Rights Violators to Justice," 107 Yale Law Journal 191-226 (1997).

In 1948 the U.N. ratified its Universal Declaration of Human Rights as a hortatory document, intended as a recommended, but nonbinding, set of principles to guide the behavior of member states. Only decades later did the U.N. member states gradually agree to language in a series of putatively binding covenants spelling out the details of the obligations which governments should undertake to satisfy the ideals set forth in the Universal Declaration. One of these, the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment, inspired by the provision against torture in Article 5 of the Universal Declaration, was passed as a U.N. resolution in 1984, effective in 1987, and ratified in this country a decade after the initial resolution. As part of the U.S. effort to implement the Convention Against Torture, Congress enacted the 'Alien Tort Claims Act' (ACTA) and the 'Torture Victim Protection Act' (TVPA) in 1994, whereby victims of torture could file civil suits against alien oppressors in U.S. courts. Moreover, that same year Congress added a provision to the criminal code permitting any person physically located within the United States, citizen or not, resident or not, to be held criminally liable in domestic courts for torture committed anywhere against anyone. All this was in response to language in Article 5 of the Convention on Torture, which mandates national criminal jurisdiction to enforce the provisions of the Convention when offenses occur within a nation's territory, or when they are committed by or against a citizen or resident of that nation. Moreover, the Convention permits any additional jurisdiction allowed in these matters by internal law. This raises the question whether it is legitimate for a nation to enforce the provisions of the Convention against any offender anytime, anywhere. The author argues that this is a salutary development, and examines its implications for domestic U.S. law.

Rawls, John. "The Idea of Public Reason," 64 University of Chicago Law Review 765-807 (1997).

This is a revision of a lecture given in November, 1993, roughly contemporaneously with the appearance of Rawls's second book, Political Liberalism. It reiterates the confession that his first book, A Theory of Justice, overlooked the fact of reasonable pluralism-that reasonable people in a democratic society can be expected to embrace a plurality of reasonable but irreconcilable views about ultimate value-and consequently articulated a comprehensive liberal doctrine that can no more claim legitimate sovereignty than any other comprehensive doctrine, such as a religiously founded comprehensive view.

The necessary correction is to recast liberalism in terms of the idea of public reason, which restricts discourse on political issues to premises that all reasonable persons might freely accept. This raises the question of how, as to "constitutional essentials and matters of basic justice," citizens can have a duty to obey laws with which they disagree. Rawls suggests that compliance with the "criterion of reciprocity," requiring that citizens propose only reasonable terms of political cooperation to their fellows, is sufficient to assure that majority decisions enshrined in law morally bind all. Rawls here seems to repudiate the agnosticism about political obligation expressed in A Theory of Justice, but the sketchiness of the argument occasions doubt.

There is an extended effort to answer Susan Okin's charge that Rawls is evasive on the role of the family; and to answer the criticism that political liberalism amounts to a hegemonic secularism. He clarifies a number of detailed points, some of them in surprising ways. Tolerance of religiously motivated patriarchal families is not necessarily ruled out by political liberalism. Political liberalism is not necessarily pro-choice on abortion, nor is it necessarily hostile to school prayer or parochial school aid. These are matters for majority decision, with the proviso that the reasons invoked are public ones. No doubt some readers will wonder whether the "many" political liberalisms Rawls lets bloom are as worthy as the Enlightenment original that he now rejects.

Solan, Lawrence M. "Learning Our Limits: The Decline of Textualism in Statutory Cases," Wisconsin Law Review 235-283 (1997).

Solan provides a cogent and thorough critique of Antonin Scalia's brand of textualism in interpreting statutes. Scalia's position is that courts should not rely "on extra-statutory phenomena, such as the legislative history of the statute's enactment, subsequent legislative history, and efforts to ascertain the mischief that the statute seeks to redress." Instead, Scalia proposes that courts employ a close reading of the statute asking only what the terms mean to ordinary commonsense. Solan argues against this position by making good use of recent work in linguistics and cognitive psychology to show that Scalia's "methodology flies in the face of the most basic strategies we have for understanding natural language." What strong textualism does is to ignore the context of language use. Textualism creates an ideal speech situation much like economists construct ideal economic situations. But in the natural world ideal situations are not terribly useful as interpretive strategies for ascertaining what people actually do or say. While Scalia's method does eliminate a wide range of indeterminancies, it also often completely misunderstands what legislatures intended to do by passing various statutes. In fact, legislatures have so often had to reverse judicial interpretations of their statutes that Scalia's colleagues on the Supreme Court have begun to back away from his strict version of textualism. On both practical and theoretical linguistic grounds, "textualism" is suspect. Solan contends that the decline of "textualism" is all for the best. Because of this article's ample use of the work of Grice and other philosophers of language, the essay will be of interest to a wide variety of philosophers interested in meaning and the context of interpretation.

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