Monday, January 31, 2011

Malone reviews Darian-Smith, "Religion, Race, Rights"

The Law & Politics Book Review (sponsored by the Law and Courts Section of the American Political Science Association) has just posted a review of Eve Darian-Smith, Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law (Oxford and Portland: Hart Publishing, 2010).

Here's a taste, from reviewer Christopher Malone (Department of Political Science, Pace University):
The chasm between the emancipatory assurances of Anglo-American law and its more ominous, less than noble history lies at the center of Eve Darian-Smith’s incredibly ambitious – and in some ways too ambitious – work, RELIGION, RACE RIGHTS: LANDMARKS IN THE HISTORY OF MODERN ANGLO-AMERICAN LAW. Professor Darian-Smith challenges the notion that western modern law is “the source of equal protection and enforceable rights for all” (p.18). Rather, she seeks to “underscore the sacred, irrational and ideological elements embodied in law” (p.2). Darian-Smith demonstrates “that today’s western understanding of the rule of law is historically grounded to the particularities of Christian morality, the institutional exploitation of minorities, and specific conceptions of state and individual rights” (p.2).The work selectively reaches back over five hundred years of Anglo-American law and events – from the emergence of Martin Luther and the onset of the Reformation, to the arrival of Sam Walton and the global capitalist expansion of his Walmart empire.

While Darian-Smith’s thesis is that modern western law is not nor ever has been rational, objective, and secular, she offers a persuasive counter-argument largely backed up through the evidence: the proper norm to view Anglo-American law over the last five centuries is through religious exclusion on the one hand and racial discrimination on the other (the latter of which has been fueled by capitalist exploitation). And while Darian-Smith does not frame the argument directly in this way, RELIGION, RACE, RIGHTS could also be read broadly as a meditation on the debate between the false promises of classical liberalism and the dangerous excesses of communitarianism. While [*15] the former begins with a “methodological individualism” which views societies through the lens of the abstracted individual whose “natural rights” are protected by the social contract, the latter counters that the “individual” cannot and does not exist outside of the groups which historically, culturally, and ideologically circumscribe one’s society. As much as we would like to believe in the existence of a society of free, equal individuals protected by the rule of law, we are consistently met with the reality of an in-group/out-group dynamic, mostly not of our choosing, that both initiates and is exacerbated by a constant power dynamic. At its worst, this dynamic leads to conflict, bloodshed, discrimination, and social upheaval.
Malone concludes by recommending the book to "anyone whose academic work even remotely touches on the issues of religion, race, and rights." He also suggests the book as a reference work "for any others interested in the last five hundred years of Anglo-American law."

You can read the full review here.

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