Human Rights: Group Defamation, Freedom of Expression and the Law of Nations: What International and Domestic Laws Can Teach the United States.

• Author: Mertus, Julie
• Position: Review

HUMAN RIGHTS: GROUP DEFAMATION, FREEDOM OF EXPRESSION AND THE LAW OF NATIONS: WHAT INTERNATIONAL AND DOMESTIC LAWS CAN TEACH THE UNITED STATES. By Thomas David Jones. Boston: Martinus Nijhoff, 1998. $115.00.

The field of international and comparative law has long been concerned with "transplants," that is the moving of law from here to there.(1) International bodies borrow laws from states' law and practice, and in the same vein states borrow laws from each other.(2) State-based projects, commonly termed "rule of law" endeavors,(3) attempt to transplant laws, and in some cases entire legal systems, from one place to another. The transfers are usually made from a country perceived as working properly to one deemed to be in great need. At times this process can be said to be utterly without coercion as states freely look outside their boundaries for guidance on law reform, using other states' laws wholesale, or more frequently, adapting the provisions that suit their own needs.(4) However, the legal transplant process is generally marked by some form of coercion or at least heavy political and economic incentives. Those states that adapt their laws to conform with the laws of politically powerful states are rewarded with economic assistance, advantageous trade arrangements, and other political plums; while those that do not are penalized.(5)

The first wave of legal transplant projects occurred after World War II when the victorious allies rewrote the constitutions of the vanquished to conform to their own ideologies.(6) The second wave occurred in the 1960s, a time optimistically labeled a "Decade for Development" by the United Nations.(7) During this period of decolonialism, "departing colonial powers hastily imposed carbon copies of their own documents [and laws], which evolved from different cultural and historical backgrounds."(8) At the same time, the law and development movement, crafted by American academics and private foundations, sent throes of American lawyers abroad. These American lawyers were mainly sent to Latin America and Africa to train problem-solving legal engineers(9) and to promote a modern vision of law as an instrument of development policy along capitalist and democratic lines.(10)

The law and development movement featured various models for transfer, including the following:

(1) direct transfer of legal institutions and instruments, (2) indirect transfer of legal concepts and models, (3) invited legal transfer, where the initiative and encouragement for the legal transfer process comes from the recipient legal culture, ... (4) imposed or uninvited legal transfer at the initiative of the "exporting" legal culture[,] ... (5) infused--"premeditated" or "planned"--processes of legal transfer, direct or indirect, wherein the initiative comes from the exporting legal culture, [and] (6) more occasional ad hoc borrowing.... (11) None of these models worked well to foster positive social change in Latin America. One of the major failings of the law and development movement was its failure to understand that multiple kinds of law can co-exist in society. Law reformers from the outside cannot begin to understand how unwritten community codes for behavior intersect with and influence formal law.(12) As a result, they cannot see how their proposed legal changes will be filtered through more powerful social networks and other social structures. Another failure of the law and development movement was the inability to appreciate that locals act according to their own self-interest. Local people are actors and not mere subjects; they "generally [turn] American legal assistance to their own ends."(13) For example, authoritarian forces in Latin America used the law and development movement to solidify power and control. Ultimately, the agenda backfired because instead of promoting democracy, the law and development movement served to strengthen the hold of antidemocratic elites.(14)

The fall of Soviet-dominated states in the late 1980s and early 1990s has ushered in a new wave of legal transplants(15) that repeats the techniques of earlier times. An example is sending in lawyers, mainly from the United States and also from Western European states, in an attempt to reconstruct the local legal system in a manner more compatible with U.S. and Western European interests.(16) The earlier focus on transporting U.S. methods of legal education has been retained, and a new and bolder emphasis on the wholesale rewriting of local law has been added.(17)

The transferor/transferee equation has been simplified in recent times. With few exceptions, it can be said that the actors from the United States and the politically powerful Western European countries are on the transferring end of the equation; that is lawyers and politicians from the United States and Western Europe are pushing for other states to change their laws.(18) Few expect that the other state will copy outsider laws, although that would be acceptable in many cases, but merely expect the other state to reform the provisions of its law that violate the most fundamental aspects of good law (U.S. or Western European law).(19) Actors from all other countries, but in particular those from politically and economically weak areas, find themselves on the transferee side of the equation.(20) Penalties are applied and rewards are given based on their willingness to engage in law reform in this one-directional process.(21) In the late 1980s and early 1990s, the transferring U.S. and Western European governments and international financial institutions pressured the governments of Eastern Europe to adopt laws consistent with a political democracy and a free market economy.(22) By complying formally, if not in practice, with these demands, the governments were rewarded with economic assistance(23)

Many U.S. and Western European scholars have been compliant with this dominant one-directional process, studying the ways in which constitutions and laws in Eastern Europe can, should, and have been reformed to adapt to U.S. and Western European standards.(24) As consultants, U.S. and Western European lawyers travel to eastern outposts to offer advice on changes that should be made to administrative, tax, corporate, criminal, and family laws, and to suggest improvements to the overall structure of legal systems, legal education, and law enforcement.(25) Many consultants are self-critical, questioning in particular the efficacy of their own work. Nonetheless, few critiques are made of the assumption that the U.S. and Western European models should or can be transplanted. As in earlier times, little recognition is made of the ways in which informal social networks and other mechanisms intersect with formal legal changes. Even fewer critiques are made of the notion that the other state is the one in need of reform and that as such it has little to offer American and Western European legal systems. While many Western European legal scholars, responding to pressures for European unification, examine how their own legal systems could adapt to the practice of other Western European states,(26) fewer U.S. scholars appear interested in how the U.S. legal system can learn from the experience of other states.(27)

Thomas David Jones is an exception to this general trend. He is a legal scholar committed to law reform in the United States, focusing in particular on issues pertaining to racism and economic and social rights. He is also a scholar of international human rights. While Jones, like many of his colleagues, is interested in the application of international human rights law in domestic courts,(28) he adds a unique dimension to law reform analysis. He engages in both a study of international law and a comparative analysis of domestic laws.(29) In the days of U.S. consultants going abroad and teaching others about American law, Jones is a rare reverse transplanter. He studies the legal practice in other states such as Nigeria, and gleans lessons that could be applied back home.(30) The originality of Human Rights: Group Defamation, Freedom of Expression and the Law of Nations(31) rests in his use of the tools of comparative and international law to propose narrowly tailored regulation of racial defamation in the United States.

Other commentators have focused on the international treatment of hate speech, speech that is "`abusive, insulting, intimidating, harassing and incites to violence, hatred or discrimination' against a group or a person based on race, religion, ethnicity or national origin."(32) The subject matter of Jones's study is much narrower. Instead of tackling the broad topic of hate speech, he examines a specific form of group defamation, "racial or ethnic defamation."(33) Throughout the book, the terms "group libel," "group defamation," and "ethnic defamation" are used synonymously.(34) At the start, group defamation laws are defined to "include defamatory utterances against groups based on race, nationality, ethnic origin, sex, and religion."(35)

The first chapter of Human Rights: Group Defamation, Freedom of Expression and the Law of Nations engages in an overview of the nature of international protection of human rights and its application to freedom of expression and group defamation. In a brief discussion about the origins of the idea of universal human rights, Jones underscores the governments' long-standing commitment to the principle of human rights and the rise of global concern for the concept in recent times.(36) He concludes with a flat rejection of cultural relativism.(37) warning that "[o]ne must not succumb to the position of those who would do injury to [the idea of universal human rights] in the furtherance of political expediency or for the purpose of justifying violations of fundamental human freedoms."(38) Quoting Louis Henkin, Jones accepts the premise that the concept of individual human rights finds support in all cultures:

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