by Edward L. Rubin. Princeton, NJ: Princeton University Press, 2005. 496pp. Cloth. $45.00 / £29.95. ISBN: 0-691-11808-6.
Reviewed by Brian Z. Tamanaha, St. John’s University School of Law. Email: tamanahb [at] stjohns.edu.
pp.841-844
Imagine that an alien anthropologist from another planet lands in the United States to study our political-legal system (admittedly a stretch, but the point will be apparent in a moment). The anthropologist, Dr. Observer, will see that we constantly invoke the term “democracy” to describe our political system. However, beyond noting that votes are tallied in a variety of circumstances in connection with governmental personnel and actions, Dr. Observer will have great difficulty specifying democracy’s precise characteristics. It cannot be about majority rule, since a President can be elected without a majority of votes cast, and the allocation of representation in the Senate thwarts majority rule. It is not a prerequisite for the enactment of legally binding rules, since the vast bulk of government-issued regulations are not subject to a vote by elected representatives, and a great deal of legislation is the product of backroom deals between a few well-placed individuals. Dr. Observer will also be puzzled by another often-repeated notion – the separation of powers – the idea that the legislative branch makes law, the executive branch executes or enforces law, and the judicial branch interprets and applies law in particular cases. It would seem evident to Dr. Observer that the judicial branch makes a lot of law, both in the context of the common law and in the context of interpreting legislation, regulations, and the Constitution. Moreover, the executive branch generates reams of legally binding orders and regulations, and it also makes judicial determinations (in the administrative context). Dr. Observer would be bewildered about the apparently central notion that people have “rights.” Democracy and the separation of powers are manifested in concrete forms – elections and physically separate institutions, respectively – but “rights” have an ephemeral existence, most commonly invoked to lend weight to an assertion or claim of some kind, for example, in a political discussion or a court case.
Additional examples can be given, but the point should be clear. Whichever way Dr. Observer begins – by locating our core political and legal concepts and ideas, then comparing them with the actual structure and actions of government; or by first looking at the actual structure and actions of our government, then examining the concepts and ideas we use to describe government – there will be a starkly evident mismatch between our concepts and the actual form and functioning of our governmental apparatus.
Edward Rubin’s BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE explains these mismatches and identifies their [*842] harmful consequences. Rubin’s thesis is that many of our most fundamental political and legal theories and concepts are medieval inheritances which no longer serve our interests. “The contention in this book,” Rubin writes, “is that our continued use of pre-modern concepts for modern government embodies the thought processes of a prior era, its way of conceiving the world, of creating categories, and of determining the relative significance of different issues. As such, these concepts are an impediment to understanding, and control our current thinking in ways that are genuinely counterproductive” (p.7).
Rubin faces a major hurdle in persuading others of his thesis: the perceptions of readers of the book will be shaped by the very same concepts and categories he contends are misleading. To make a plausible case, Rubin must somehow get readers to step outside of, temporarily suspend, or entirely set aside, many of our taken-for-granted political and legal concepts. This is not a simple feat. My invocation of an alien anthropologist, Dr. Observer, was intended to engender this effect by asking the reader to imagine what things would look like from the standpoint of a naïve observer free of our most basic assumptions.
Rubin’s approach consists of two basic moves. He first asks the reader to “bracket” or “hold in abeyance” our existing concepts (p.8). With respect to each political or legal concept he addresses, Rubin attempts to persuade the reader that such bracketing is appropriate and necessary by exposing its pre-modern origins, showing that it took root or acquired its meaning in circumstances significantly different from today. Rubin then articulates and applies an entirely different conceptual scheme – an “alternative imagery” – with which to frame, describe, and understand a particular aspect of the political-legal arena. To supplant the notion of three separate branches of government, for example, Rubin offers the model of a “network;” he suggests that “legal rights” are better understood in terms of “causes of action;” “human rights” are better understood as “moral demands on government;” “property” is better understood in terms of “market allocations,” and so forth.
Although his analysis is presented in an integrated fashion, it can be disaggregated at various levels. One may be convinced that certain concepts he identifies have indeed exhausted their usefulness or carry debilitating limitations, while others still work well for various purposes; one may find certain of his alternative conceptualizations immediately convincing, while others are less so. Rubin is open to a critical reading of this sort, modestly presenting the book as “an extended thought experiment,” and encouraging readers to render their own evaluation.
Rubin posits that “the government’s purpose is to benefit its citizens” (p.14). “We want the government to be effective in achieving its goals, we want it to do so efficiently, which means with the lowest possible expenditure of resources, and we want it to do so fairly, which means that benefits are reasonably distributed, and limits are placed on the sacrifices individuals are required to [*843] undergo”(p.15). Rubin also posits his methodological approach, asserting that “microanalysis” offers the most illuminating way to study the government. “[I]t begins with individuals, identifying their specific actions that are relevant to the subject under study. It describes these actions in terms of the individuals’ actual positions in the institution—their assigned tasks, the scope of their authority, the forces acting upon them, the information that is available to them, and the consequences of their action” (p.18). Rubin proceeds to tackle one basic political or legal concept after another, showing their limitations, and presenting his proposed replacement. In each case, he concretely identifies the ways in which his proposed alternative allows us to perceive the actual functioning of the government more acutely, thereby helping us improve the government’s performance of its purpose.
To describe Rubin’s argument in this summary form, unfortunately, is to betray the design of the book. The only way to know what the book is about is to read it. This requires a commitment, as it consists of 350 pages of dense – though clearly and smoothly written – text, and more than 100 pages of endnotes (for the truly dedicated). But the reward is worth the effort. Rubin’s bracketing analysis effectively dissolves one standard concept after another, to the extent that one may wonder how the standard understanding has remained so resilient in the face of such contrary facts. His alternative conceptual schemes time-and-again create a novel perspective that produces new angles and insights. To offer just one example, Rubin details a number of ways in which the routine notions that the President is the titular head of the administrative branch of government and that the legislature passes laws and delegates tasks to administrative agencies are misleading. Network analysis instead portrays the President as merely a single individual with a small number of selective relationships through which communication occurs, which then wends its way through agencies via other strings of relationships, often losing something or meeting resistance in the process; Congress consists of individuals and their staffs who send various signals – from laws to letters to statements at hearings – to administrative agencies, constituting complex lines of continuous interaction at multiple levels. The network approach generates a number of policy implications that Rubin identifies.
The alternative conceptualizations elaborated by Rubin draw from existing literature in various fields, so his discussions are not entirely unfamiliar, although he incorporates ideas from an array of subjects that few scholars can match, including philosophy, political science, political theory, legal theory, history, organization theory, sociology, economic analysis, administrative law and theory, and much more. For this reason, the book defies categorization. It is at once a work in sociology, political theory, legal theory, government, and administrative law, but it also takes up rights and property and markets, among other subjects, at a high level of sophistication.
This broad scope lends the impression that the ultimate ambition of the book is [*844] to produce a comprehensive framework for understanding modern law-government. But one major omission bears comment. The book contains just a few isolated references to criminal law matters, with no real analysis of the subject. This is not a criticism, as its depth and breadth of coverage are impressive. But it raises interesting questions, which Rubin does not explore. It might be that the traditional conceptual categories of criminal law still work reasonably well, so Rubin’s thesis does not apply to this area. If this is correct, it would be interesting to learn why criminal law concepts escaped the obsolescence suffered by other fundamental legal and political concepts. There is another intriguing possible explanation for this omission. That a fairly exhaustive book on modern government can be written without an extensive discussion of criminal law – which has traditionally been a central focus of legal theory, as indicated by the commonplace characterization of law as the coercive enforcement of social order – suggests that in the contemporary period the emphases and uses of law have shifted away from what was an earlier primary focus. To put the point another way: law itself, through its instrumental capacity, has become internally differentiated, acquiring a chameleon-like quality, which is on display as Rubin analyzes one context after another. Law has become a mechanism for doing things, just about anything, and that it how it is being utilized today.
Upon completing the book, at least for the readers who are persuaded by Rubin’s analysis, the government, democracy, law, rights, property, and more, all will appear in a different light, at a stripped down, context-based, functioning level that focuses on the interactions between individuals and their consequences. Having this dramatic effect – changing someone’s perception about fundamental matters of law and government in so thoroughgoing a manner – is quite an achievement, one that few books accomplish, much less attempt.
As powerful as the book is, however, the task of persuading people to discard and replace centuries-old entrenched conceptual frameworks is perhaps impossible. Immediately after one sets down the book and reengages in the existing discourse, the old concepts and categories inevitably reassert their dominance. Everyone thinks within, uses, and relies upon these concepts; they structure shared perceptions and understandings at such a deep level that they cannot be dislodged absent an unimaginable, wholesale conversion. Rubin understands this, and he does not, in the end, advocate that our familiar old concepts be abandoned. Instead, he urges that anyone whose job requires taking a clear-eyed, detached view of government and law – social scientists, policy analysts, political and legal theorists, and judges – would benefit from utilizing the alternative conceptual approaches he elaborates. Rubin is correct in this claim. Anyone who desires to understand modern government should read BEYOND CAMELOT.
by Glenn Bullock
