Book Review: The Philosophy of Customary Law

By Susan Gualtier

philsophyofcustomarylawJames Bernard Murphy, The Philosophy of Customary Law (Oxford University Press, 2014). 160 p. Hardcover $83.00.

As someone with more than a passing interest in customary law, I looked forward to reading The Philosophy of Customary Law, by James Bernard Murphy, Professor of Government at Dartmouth College.[i]  In this book, Murphy posits that custom must be analyzed in terms of “two more basic logical concepts: convention and habit.”[ii]  He then offers a historical overview of four philosophers who have examined the concept of custom (Aristotle, Suárez, Bentham, and James C. Carter), highlighting how each built upon or reacted to his predecessors’ work.  Murphy includes a brief epilogue at the end of the book, in which he offers a few of his own thoughts on customary law.  Unfortunately, although the premise of the book seemed promising, I was disappointed in the execution.  Murphy largely ignores the legal framework for understanding customary law, and is more interested in the theory of human behavior more generally. He reaches no useful conclusions regarding customary law, at least from a practical standpoint, and it is unclear what this book can contribute to the discussion of customary law.

Despite its title, The Philosophy of Customary Law deals relatively little with customary law as we know it.  Most of the discussion of contemporary customary law occurs in the book’s introduction, where Murphy entirely ignores tribal, indigenous, and other customary law systems, instead minimizing the importance of customary law to that of a “gap-filler” only occasional referenced by Western common law courts in situations where no written law applies.  International custom merits a single paragraph in the introduction.  Murphy waves away the need to describe or differentiate for the reader the specific ways in which custom can comprise or inform the law.[iii]  Similarly, he dismisses what most of us will recognize as a critical element of establishing customary law, whether international or domestic: the subjective requirement that states or individuals observe a custom because they believe or intend it to have the force of law (“Instead of distinguishing the objective usage from the subjective attitudes of participants, I propose to distinguish the habitual (individual) dimension of custom from the conventional (social) dimension of custom.”[iv]).

It is unclear whether, by so openly dismissing the basic framework of customary law analysis, Murphy intends to create a groundbreaking new way of thinking about customary law, or if he simply cares more about philosophizing than about the practicalities of legal analysis and application.  I hoped that the four main chapters of the book, each of which deal with a different philosopher and/or school of philosophical thought, might shed more light on his purpose and provoke me to think differently about customary law.  The first chapter focuses on Aristotle and his distinction between ethos, which might be characterized loosely as habit or second nature, and nomos, which might be characterized as either convention or law–and more specifically, according to Murphy’s etymological analysis, “convention stemm(ing) from an act of deliberate stipulation.”[v] Noting Aristotle’s identification of nomos with logos (reason), Murphy states, “As applied to custom, Aristotle’s close identification of nomos and logos seems odd. … Customs seem to arise from human conduct but not from any deliberate design.”[vi]  But is that the case?  Murphy seems to see “deliberate design” as a process limited in time – a transaction rather than an evolution.  It is arguably not very difficult to see the connection between ethos and logos if you consider the subjective requirement that participants in a customary law system believe that a custom constitutes a legal requirement or intend for it to do so.  It is Murphy who has severed the connection between reason and custom, and who then seems to take issue with Aristotle’s use of nomos to describe both social convention and law.  Murphy cites enough commentators that I (not being a student of philosophy myself) believe him when he states that Aristotle’s language is often unclear.  However, I was struck by what seemed to be a resistance to the idea that the development of custom could be intentional or rational, which seems to indicate a limited perception of, or perhaps a limited respect for, the richness and potential efficacy of customary law.

This resistance carries into the second chapter, which begins with the statement that “customs are not in general deliberately made.”[vii]  This chapter describes the work of Francisco Suárez, particularly in relation to that of his predecessor, Thomas Aquinas, and seems primarily to take issue with Suárez’s belief that law “expresses the will of the lawgiver.”[viii]  Again, however, much of the argument seems to originate with a limited view of customary law.  Murphy cannot reconcile Suárez’s definition of “law” with his understanding of custom, because he cannot see the individual participants as the lawmakers (“Only an author can form an intention to communicate and customs usually have no author”[ix]), and because he rejects the idea that the participants, either individually or as a group, can exercise reason, intent, or will (“Because customs are not designed or made by any one person, what kind of will or intention do they signify?  No one wills custom into being as a legislator might will a statute into being.  Customs simply arise will-nilly.”[x]).

The final two chapters offer more of the same, although Murphy seems to settle into a more traditional definition of customary law, including its subjective element, during his critique of Bentham.  Nonetheless, he returns to the ideas of “habit” and “convention” toward the end of the chapter in order to conclude that Bentham failed to adequately grasp the concept of custom (“What is largely missing in Bentham’s account is a description of how conventions become habitualized and how habits become conventionalized: the essential nature of custom never comes into focus … customs rest upon a real relation between individual habits and social conventions.  Hence, customs escape the net of Bentham’s logic.”[xi]).  The book ends with a brief epilogue, in which Murphy offers a few of his own reflections on the relationship between custom and law.  However, his primary argument here has little to do with customary law.  Instead, he concludes with the notion that written law should become a matter of custom (or, more specifically, “habit” – or second nature – if we are to use Murphy’s framework.)  In Murphy’s view, “it is better to conform to good laws by customary habit, than by constant recourse to lawyers.”[xii]  This is a fine statement, indeed, but one that, as a conclusion to a book on the topic of customary law, contributes little, if anything, to the field.

It is probable that I simply disagree with Murphy that custom can or should be analyzed through the concepts of habit and convention – or perhaps the book just does not explain how doing so adds to the discussion.  Rather than clarifying or broadening our understanding of customary law, the attempt to boil custom down to these two concepts would seem to limit our ability to work with custom as a legal concept or to form any useful framework for its analysis – an irony, since Murphy states in his epilogue that “[o]ur philosophers of law rightly understand that the puzzles about customary law arise mainly because of inadequate conceptions of custom.”[xiii] Murphy’s purpose appears to be disagreement with previous thinkers for the sake of disagreement (an approach which, incidentally, leads to most of my frustration with the field of philosophy in general).  It is also possible that this book was an academic exercise rather than a sincere attempt to contribute to the study or practice of customary law.

What has always interested me about customary law is how it operates “on the ground” – how it changes and evolves, how it differs based on geography and culture, and how external factors can assist with or complicate its application.  Given that my interest is practical rather than philosophical, I am clearly not the intended audience for Murphy’s book.  Those with a background in legal philosophy might find this book interesting, but it has little relevance to the practicalities of researching or practicing customary law.

[i] James Bernard Murphy, The Philosophy of Customary Law (2014).

[ii] Id. at xiii.

[iii] Id.

[iv] Id.

[v] Id. at 9.

[vi] Id. at 10.

[vii] Id. at 23.

[viii] Id. at 28.

[ix] Id. at 25.

[x] Id. at 41.

[xi] Id. at 87.

[xii] Id. at 124.

[xiii] Id. at 117.

Two New Books from Yale

By Dan Wade

The Yale Law Library sponsored two book talks for books published by Yale faculty dealing with Foreign and International Law.

Internationalists (002)Monday night’s talk, held at the Yale Book Store and filmed by C-Span, featured Oona Hathaway, a professor of International Law, and Scott Shapiro, a professor of Jurisprudence who teaches a course in Transnational Law.  The pair were quite entertaining in discussing their new history of international law and, particularly, the law of war: The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon & Schuster, 2017).  The work is not a sequential history, but rather takes historical vignettes to show how the law, especially the law of war, has evolved.  Their style is witty and they tell many excellent stories; it is almost the page-turner that Philippe Sands’ East West Street is. (Did you see the review of East West Street in the most current issue of AJIL, 111:2, April 2017?)  The Internationalists is fun to read and yet has a thesis about how to understand international law.  It begins with the 16th century and Grotius, who is deemed to formulate the law of the Old World Order, i.e. “Might Makes Right”; sees the Kellogg-Briand Pact of 1928 (though, the authors prefer calling it the the Paris Peace Pact because Secretary of State Frank Kellogg was so Trump-esque), where the nations of the world sat down and agreed to renounce wars as an instrument of national policy and effectively created a New World Order; and concludes with an assessment of the contemporary scene.  I’ll let the law professors debate whitmanbookthe validity of their interpretation, but I can certainly recommend the book at one level as a wonderful, “light” read.

I have not yet had the chance to read the book that featured in Wednesday’s book talk: James Q. Whitman’s Hitler’s American Model: The United States and the Making of Nazi Race Law (Princeton: Princeton University Press, 2017). Jim is a professor of Legal History and Comparative Law at Yale.  His thesis is that the Nazis based their race laws, the Nuremberg Laws of 1935, on American laws rising out of Jim Crow and state miscegenation laws. This is certainly an intriguing idea!

Happy Reading!

Announcement: FCIL-SIS (Informal) Book Discussion Group at AALL Annual Meeting

By Dan Wade

disarray_0The FCIL-SIS Book Discussion Group will meet at the Annual Meeting on Monday between 12:15 and 2:00p.m. We are gathering at the AALL Annual Meeting Registration Desk at 12:15p.m.

The book under discussion this year is A World in Disarray, by Richard Haass (New York: Penguin, 2017). Haass has been President of the Council of Foreign Relations since 2003. After graduating from Oberlin and receiving his M.Phil and D.Phil from Oxford, Haass worked for the Department of State and the Department of Defense. Between 2001 and 2003 he served the George W. Bush Administration by assuming the dual role of Director of Policy Planning at the State Department, where he became a close adviser to Secretary of State Colin Powell, and United States Special Envoy for Northern Ireland, for which he received the Department of State’s Distinguished Service Award. The book under discussion is Haass’ twelfth book, and it very much follows the line of thinking set out in probably his best known work, The Reluctant Sheriff,  in which he writes, “what will prove crucial is the ability of the United States to persuade others to adopt and abide by its preferences—and the will and ability of the United States to act as sheriff, to mobilize itself and others to insist on them when resistance emerges.” (p.44). In the present book he mellows some and invokes the principle of sovereign obligation, where a state works towards meeting the interests of other states. In the final chapter he addresses the issue of our country in disarray. (No, it is not about Donald Trump’s foreign policy.) Here he calls for more military spending. You can imagine how that analysis sits with this Connecticut Yankee and ordained minister (emeritus) of a historic peace church, e.g., Friends and Mennonites. The book does have value. I thought the discussion of R2P and United States debt were two of the high points.

I believe our group will be smaller this year, and if you are interested in foreign policy, world order, and international relations, please feel free to join us, even if you haven’t read the book. I will reserve a couple of extra places at the lunch table.

Recap: FCIL-SIS Book Group

By Jennifer Allison

ewstSpearheaded by Dan Wade of the Yale Law School Library, the FCIL-SIS Book Group met again this year at the AALL annual meeting. Of the two finalists, the book chosen by the participants was East West Street: On the Origins of “Genocide” and “Crimes Against Humanity”, by Philippe Sands (published in 2016 by Knopf, ISBN 978-0385350716).

The participants in the book group included:

  • Dan Wade, Yale
  • John Wilson, UCLA
  • Lyonette Louis-Jacques, University of Chicago
  • Loren Turner, University of Minnesota
  • Jennifer Allison, Harvard
  • Daniel Donahue, University of Houston
  • Marilyn Raisch, Georgetown
  • Evelyn Ma, Yale

After a bit of a location mix-up, the group settled on meeting at the conference hotel’s American Craft  Kitchen & Bar.  Over delicious food and drinks, the conversation about this interesting and unexpected book flowed.

Most of the group’s participants gave the book a thumbs-up, although there were definitely mixed reviews regarding the book’s somewhat unusual format.  Although it was a non-fiction account of the development of the crime of genocide, Sands wove this information into the stories of four people from an Eastern European city, that, throughout its history, has had a number of names, including Lemberg, Lwów, Lvov, and as it is known today, Lviv.

One of the four people whose story was told was Sands’ maternal grandfather, a Jew who left his hometown for Vienna in the early 20th century, and then fled Vienna for Paris in the late 1930s.  The book featured extensive descriptions of the grandfather’s early life, the fate of his family in what was, during the war, the Polish city of Lwów, and his later years in Paris, where the author spent time with him.

Sands also told the stories of two men who had studied at the law faculty of the University of Lwów:

  • Raphael Lemkin taught at Duke Law School and worked with the American lawyers who were involved in the Nuremberg trials. In his book Axis Rule in Occupied Europe, he offered the first definition of the word “genocide.”
  • Hersch Lauterpacht was an international lawyer who taught at the London School of Economics and Cambridge University. He worked with the Nuremberg Trials’ team of British lawyers.

The book’s fourth biographical figure was the German lawyer Hans Frank, who served the Nazi regime as both a lawyer and the Governor General of occupied Poland.  He was a defendant in the Nuremberg Trials, where he was convicted of the murder of Polish Jews.  He was sentenced to death and executed.

Although biographical information of these four figures was woven throughout the book, the main focus of its second half was the Nuremberg Trials, from the preparation (in which the allies’ legal teams debated whether to use the newly-introduced crime of “genocide” in their prosecution of the Nazi defendants), through the trial proceedings and the outcome.

Some of the members of the book group were not enamored of the book’s extensive use of biographical narrative, and would have preferred that the book focus merely on the earliest development of genocide of a legal norm that could be used by lawyers to prosecute war criminals.  In fact, a few people said that, if they were to read the book again, they would skip its first half entirely.  However, other members of the group felt that the inclusion of the biographical stories made the work more accessible to non-scholars; specifically, “it made it a serious book about genocide that I could recommend to my mom, or sister, one that they would actually read.”

There were other concerns about the book among the group.  As Dan Wade pointed out, “This book likely would not have passed a law school preemption check.”  Perhaps he is correct.  Ana Filipa Vrdoljak, a law professor at the University of Western Australia Faculty of Law, published an article that covered a remarkably similar topic in 2009: Human Rights and Genocide: The Word of Lauterpacht and Lemkin in Modern International Law (20 Eur. J. Int’l L. 1163 (2009)). The article tracked the life paths of these two figures, from their education at the University of Lwów Faculty of Law, through their lives and careers in the United States and England, to their participation in the Nuremberg Trials, in similar detail to Sands’ book.  Of course, Vrdoljak’s article discussed neither Sands’ grandfather nor Hans Frank in any detail, and the presence of the content of those two individuals added a level of narrative complexity and interest to the book that is not present in the article.  Still, Dan’s was a valid point.

Overall, it was a very successful and enjoyable book group meeting.  Hopefully this is a tradition that has been firmly established and will continue at AALL meetings into the future.

Book Review: Criminality and Criminal Justice in Contemporary Poland

ByCriminality and Criminal JusticeChristopher Galeczka

Konrad Buczkowski, et. al. Criminality and Criminal Justice in Contemporary Poland: Sociopolitical Perspectives (Ashgate Publishing, 2015). 208 p. Hardcover $112.46.

Criminality and Criminal Justice in Contemporary Poland is a collection of articles by professors, as well as one alumna, of the Institute for Law Studies at the Polish Academy of Sciences. The series of ten articles designated as chapters describe the philosophical views on crime and criminality of some of the authors, as well as other Polish authorities on the subject, and describe the historical and contemporary aspects of crime, the criminal justice system, and public perceptions of both in the country.

Poland is a country of significance to international and comparative legal scholars in being one of the largest countries in Central Europe, a region of nations characterized by long legacies of foreign rule, the more recent experience of a half-century of existence under Soviet-imposed Communism, and a still unfolding path of economic and political integration into pan-European institutions. As such, this work is of relevance not only to those interested in comparative criminal law, but also those interested in criminality across time and cultures, as well as the economic, social, political and cultural issues that arise in societies in transition from command to market economies and from authoritarian to liberal-democratic political systems.

Chapter 1, “Criminality Today and Tomorrow,” discusses historical and philosophical definitions of the concept of crime, as well as the ways in which crime is defined in the current Polish criminal code, with reference to defenses and mitigating circumstances (e.g., when certain acts are committed by juveniles or in self-defense), contained in the code.

Chapter 2, “The Status of Criminality in Poland since 1918”, narrates the history of Polish criminal legislation from independence through the communist era, to the present day, as well as describing rises and falls, and changed in criminal activity in the country with reference to available statistics, chiefly, the total number reported crimes and finalized convictions in a given period.

Chapter 3, “Social Change and Criminality: Mutual Relationships, Determinants, and Implications” treats the issue of social change and its effect on the level and nature of criminality. Kossowska describes the findings and conclusions of a number of criminologists concerning changes in criminal activity during several key periods of transition in 20th century Polish history, concluding with a discussion of the precipitous drop in ordinary criminal activity in many nations including in Poland, albeit delayed in comparison to elsewhere, and also with the advent of cybercrime and the unusual, un-marginalized nature of those who engage in it.

Chapter 4 examines the association between crime on one hand and socially excluded and economically marginalized groups on the other. Beginning with a discussion of the criminalization of the itinerant and unemployed in medieval Europe, the author examines how poverty and factors often accompanying poverty, such as feelings of alienation from society, alcoholism, family breakdown, living in marginalized areas often combine with opportunities to commit crime, leaving underprivileged people to be disproportionate perpetrators and victims of crime.  Chapter 5 continues by examining the difficulties faced by and failures of the Polish social welfare and public educational system in being able to effectively reduce social exclusion, and, by extension, criminal activity.

Chapter 6, “Justice and its Many Faces,” describes the views of many contemporary Polish writers on society’s proper response to those guilty of committing crimes.

Chapter 7 “Controlling Criminality” focuses on the Polish criminal justice system’s historical approaches to combating crime, with statistical data on numbers of crimes, convictions, and frequency with which various sanctions were imposed. Chapter 8 “Supervised Liberty,” focuses on one of the most frequently imposed of these sanctions, the suspended sentence, and comparing the philosophical justifications and practical success of this sanction with that of probation in the United States, United Kingdom, and similar systems elsewhere in Europe.

Chapters 9 “The Social Perception of Criminality,” and Chapter 10 “Criminality and the Media” combine to tell the story of public perception of crime and the role of the media in forming that perception, beginning with the late Communist era, typified by press censorship, and a relatively low level of certain criminal activity, and continuing on through the transition to democracy, characterized by a rise in criminal activity as well as the development of sensationalist media and a great rise in popular fear of crime. The story of a tabloid press fanning public fear of crime, as well as the sentiment of a criminal justice system that is ‘soft on crime’ despite its many punitive aspects would likely ring familiar to the ears of many American readers.

Many of the chapters of the book are written in a somewhat dense scholarly style. Citations are in APA format. The reader should note that citations to many of the graphical figures provided in the work are not provided with the figure, but rather are indicated within the text, where the particular figure is first mentioned. Sometimes chapters focus on providing numerous summaries of the opinions and findings of various other authors rather than rigorously promoting and supporting the authors own thesis.  The strength of these chapters, however, lie in providing a reader a good outline of Polish scholarship on crime and penology, and for this reason the book would fit well in an academic law library’s criminal law or comparative law collection.

AALL 2015 Recap: FCIL Book Group – A Reading and Discussion of Bill Hayton, The South China Sea: The Struggle for Power in Asia (New Haven: Yale University Press, 2014). xviii, 298 pages.

By Marylin Raisch

south china seaFor the second consecutive year, one of our most engaging and inspiring FCIL colleagues, Dan Wade, suggested that a group of SIS members get together informally to read and then discuss a book relevant to our field of librarianship, international law. He put forward the title above and several of us joined in on the read and discovered that doughnuts, coffee and other perks awaited us in our efforts. Hard work this, am I right? In any case, Dan put forward The South China Sea: The Struggle for Power in Asia, a “hot topic” book, as confirmed by the appearance just days before our meeting of an ASIL Insight essay: J. Ashley Roach, China’s Shifting Sands in the Spratlys, ASIL Insights (July 15, 2015), http://www.asil.org/insights/volume/19/issue/15/chinas-shifting-sands-spratlys.

On Tuesday, July 21, 2015 at 9:30 a.m., the group met at the at the Philadelphia Convention Center and embarked on a lively discussion, provoked by several of us remarking on the journalistic style of the book, in contrast to the monographs many of us buy, use, and recommend to students for research. Dan asked us what we thought of this approach. Responses were mixed; the clear and simpler style kept many of us more engaged with the recitals of colonial and post-colonial history that were crucial to understanding the nature of this international dispute. The narrative and maps presented effectively a narrative about tiny islands, coral and guano, that dot the “South China Sea.” (These quotations started to seem necessary after reading that this area of the sea goes by other names depending upon whether one’s perspective is Philippine, Vietnamese, etc.). After guano was harvested, rumors in more recent times have arisen to the effect that more valuable resources lie beneath some of the islands: oil and/or natural gas. So far, no discoveries have confirmed this.

South China Sea attendeesMany of us are familiar with the classical international law views of the sea as well as the more recent regime, made formal after the Second World War, articulated in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). One of our participants observed that the rumored oil and gas would likely fall within national boundaries and not in the disputed areas, given that the Exclusive Economic Zone (EEZ), an area not more than 200 nautical miles from a country’s coastal baseline (UNCLOS, art. 57). The 12-mile limit of a territorial sea is therefore much smaller and part of the sovereign territory. Our author described in detail the efforts of competing jurisdictions to build up tiny islands, install airstrips and the like, asserting evidence of control. Author Bill Hayton contrasted the “freedom of the seas” championed by Grotius in the 17th century with the more restrictive view of his contemporary John Selden, who believed some measure of restriction and control may be exercised by a coastal state. The compromise reflected in UNCLOS was put into an interesting light by Hayton, who describes a “mandala” view of power among southeast Asians at the beginning of the 19th century that contrasted with Europeans. A ruler’s power in their view diminished as one moved away from the center of a kingdom near the sovereign. The Westphalian view has been that rulers have the same degree of power throughout a territory and its limit is the boundary (Hayton, 46). Hayton seems to suggest that the western view is now one source of the tension and counterclaims in the South China Sea.

bagelAnother important question one of us posed to the group was to ask, what are the real current disputes and the role played by the hypothetical value of the resources there? The assertion of sovereignty by China PRC is the principal one of concern to the United States, even though claims and concerns have been asserted, over time, by Vietnam, the Philippines, and Taiwan. It was noted in our group that it was very unfortunate that this territorial dispute had become so fraught within China-U.S. relations. Just as in the days of Selden and Grotius, sovereignty disputes sometimes serve to promote social cohesion, and the audience for the dispute (from a government’s perspective) may be an internal one as well. In military terms, any future success in asserting control of the South China Sea by China could prevent mobilization of the U.S. military in the area. Closing the sea in that way to U.S. maneuvers could be a game-changer, since only trade and marine exploration are protected in the EEZ (Article 56 (1) (b), UNCLOS), although this is precisely where ambiguity has arisen. Participant John Wilson contributed his knowledge of some theories of international relations as well, and this enhanced our perspective on the issues as did Gabriela Femenia’s work with a faculty member who studies this dispute.

This group book discussion would make a great annual meeting activity going forward, and thanks from all to Dan Wade for once again inaugurating what may become a deeply valued tradition. Thanks to Gabriela, our Philly local, who thought globally but acted locally to bring us the super-special, amazing doughnuts from Federal Donuts with flavors like red velvet cake, curry (saw this one on the web site) and more. This is one international debate that ended with lots of sugar and smiles! The duty may fall to Lyo to find us doughnuts like this in Chicago. No pressure…. see you next year!

south china sea with donut

Book Review: Emerging Challenges in Privacy Law, Comparative Perspectives

By Christina GlonEmerging Challenges - cover page

Emerging Challenges in Privacy Law, Comparative Perspectives (Norman Witzleb, et al., eds, Cambridge University Press 2014). 477p. incl. index.  Hardcover $165.00

Emerging Challenges in Privacy Law, Comparative Perspectives is a collection of essays adapted from programs presented at the “Emerging Challenges to Privacy Law: Australasian and EU Perspectives” conference held in February 2012 at Monash University in Melbourne, Australia.  To accommodate for the fast-moving development of privacy issues, a few essays have also been specifically commissioned for inclusion in this collection to provide broader coverage of the big issues developing since early 2012.  While there is a decidedly heavier focus on European fundamentals, Australian history and/or advances in privacy protections are also discussed in several of the essays.

The collection is organized in six parts and provides a little bit of something for anyone interested in privacy and data protection around the globe.  Some topics covered are quite broad (Privacy and the Internet), while others are very narrow in focus (protecting the anonymity of young people in Anti-Social Behaviour Orders).  Additionally, the collection offers a nice balance of discussions on theory and the abstract (“[Convention 108] is the only global data protection treaty we are ever likely to see”) as well as detailed discussions about the nuances contained in some privacy arenas (the five categories of “intrusion on seclusion” violations).  Finally, several of the essays provide much-needed historical context for the development of privacy frameworks in many different areas of privacy law because it is truly impossible to understand where we are and where we should go with privacy law without first exploring where we have been and how we got to where we are today.

Part I of the collection provides an overview of both the Australian and European Union data protection frameworks from three different perspectives – that of Australian Privacy Commissioner (Timothy Pilgram), of the European Data Protection Supervisor (Peter Hustinx), and finally of an Australian privacy advocate (Nigel Waters, Principal, Pacific Privacy Consulting).  All three “agree on the challenges facing data privacy law reform” and the importance of enforcement of data protection laws, however, there is significant disagreement on successful expansion of those laws and enforcements over territorial / jurisdictional boundaries and consistently defining and protecting these rights on a global scale.

Part II provides the much needed fundamentals of the primary documents that have shaped privacy protections in the European Union.  Specifically, Chapter 5 examines the architecture of privacy protection in EU through the exploration of current privacy rights and the documents that granted and guarantee those rights (pre-2012 reform proposals).  Documents discussed include the well-known European Convention of Human Rights (ECHR) as well as the formal adoption of the more recent Charter of Fundamental Rights (2009).  Discussions also touch on “data protection” in conjunction with Convention 108 (1981), Directive 95/46/EC (1995), and continue up to the proposed reforms offered in January 2012.

Chapter 6 focuses on one particular document (Convention 108) and provides food-for-thought about how far privacy protections can really evolve globally.  Renowned author and scholar, Professor Graham Greenleaf proffers, “[Convention 108] is the only global data protection treaty we are ever likely to see” because no other organization (save the UN) has the capability nor the desire to draft such a global document and current efforts to update and globalize Convention 108 could eliminate the need for an additional global document.

Part III of this collection gets into the real nitty-gritty of some very specific privacy violations.  First, Chapter 7 addresses privacy beyond the unwanted dissemination of private information to that of “physical privacy.”  Professor Moreham explores the patchwork of legislative, criminal, and common law measures in England to prevent this “intrusion on seclusion” (including several “slippery slope” examples of each of the five categories of intrusion – unwanted listening and audio recordings; unwanted watching, following, photographing and/or filming; unwanted access to personal documents or files (hardcopy or electronic); unwanted access to home and personal belongings; and harassment).  In Chapter 8, Professor Michael Tilbury explores several alternative modes of protection from intrusion based in tort law and weighs the pros and cons of creating new causes of action in tort law and/or implementation of a “privacy rights-based model” to specifically enumerate privacy “wrongs.”

Part IV continues this in-depth analysis by examining surveillance frameworks in the United Kingdom, Australia, and the United States (Chapter 10) and the creation of Anti-Social Behaviour Orders (UK) and Prohibited Behaviour Orders (Australia) (Chapter 11) to prohibit “publication of anything that could identify that a young person has been involved in criminal proceedings” (page 229) in order to uphold the longstanding tradition of protecting the anonymity of young people.

Part V deals extensively with privacy issues and the Internet.  Chapter 12 dives deep into development of the Internet, “privacy-invasive and privacy-enhancing features” of the Internet, and the effects (if any) the proposed Data Protection Regulation may have on the future of the Internet.  Chapter 13 deals explicitly with the “right to be forgotten” in the EU data protection framework.  Chapter 14 compares and contrasts privacy models in the European Union, Australia, the United States, Malaysia, Singapore, and finally, Chapter 15 explores cloud computing in the European Union generally and in Germany, specifically.

Part VI circles back to the media and how the courts in the United Kingdom and Australia should balance the rights of the media and free speech with the rights of the public and witnesses to privacy.  It is unfortunate that these two chapters were moved to the end of the collection as they provide the perfect complement to Parts III and IV.  Chapter 16 explores the use of anonymity orders to protect (from media disclosure) those involved in judicial proceedings, while Chapter 17 deals explicitly with interlocutory orders in defamation actions.

This collection of essays offers a robust dialog of past, present and future successes and challenges of privacy protections around the globe.  It is an excellent collection for gaining a well-rounded understanding of the trailblazing European Union privacy frameworks and offers a mix of hope and cautionary tales to help us move forward in our united and global quest to find balance in privacy rights frameworks.