Book Review: Epp’s Making Rights Real
Charles R. Epp, Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (University of Chicago Press; 2009), 368 pp.
It is impossible to read Charles Epp’s new book without putting it against the background of his earlier book, The Rights Revolution (1998). That book has a well-deserved place on the “must read” list for the emergence over recent decades of a rights-based society in which the higher judiciary plays an active role. Readers will recall his central thesis that the rights jurisprudence of national high courts is to be understood not as some kind of spontaneous top-down elitist interruption of politics-as-usual, but rather as one side of a broader phenomenon involving activist groups and grassroots organizations providing the pressure and the opportunities for judges to take action — that is to say, it is just as much a bottom-up, and therefore democratically defensible, exercise as anything else. Using this conceptual framework, he explored the recent high court activities of several countries (U.S., Canada, Britain and India) to unfold the way that different juxtapositions and combinations of these elements could explain the varying degrees of success that rights activism had enjoyed.
This second book pursues the same idea of a rights-based society, but it does so from quite a different angle — if there were a plot-line transition screen in between them, it would not say “what happened next” but rather “meanwhile, in another corner of the building….”. Where the first book talks about what rights look like at the grand level as articulated through high court decisions, the second considers what rights look like in practice as large professional bureaucracies interact with citizens on much more prosaic and everyday issues (such as children’s playgrounds).
The central theme of the book is the emergence of the phenomenon of “legalized accountability” (his recurrent label, which my Google search suggests that he invented) in a modern bureaucratic state. By this, Epp means to identify a basic model in the operationalization of rights. The first element of this model involves formal administrative policy statements stating a commitment to legal norms that identify particular rights (although these on their own can be simple window dressing with little practical impact). The second is training and communication procedures for bureaucratic personnel that embed these rights in routine procedures, and that do so in a way that responds to learned lessons and changing circumstances. The third is an effective system of reporting and supervision to identify problems in the policies and their regular application, dealing appropriately with the personnel or training problems that are so identified. This is a general form that has emerged in recent decades and that is becoming increasingly pervasive; it provides a conceptual check-list that can be applied to check progress in particular organizations or locations or policy fields, and the book follows through on some examples. Although it may not be clear from the sub-title of the book (which can be read two different ways), the “legalistic state” that emerges is for him a very positive development.
The major example, and the experience from which the model has been developed, deals with police practices in the United States, and specifically with the use of force. This account, which consumes five of the ten chapters and 126 of the 231 substantive pages, is used to demonstrate and document the model and the general reform trajectory which leads up to its adoption. In the first step, activists direct complaints that are deflected by the bureaucratic professionalism of the administrative structures, and go nowhere. In the second, activists develop organized strategies to use the courts to press liability claims against the police organizations, a process which matters less for the financial pressure exerted through damage awards (these are never large enough or frequent enough to create real budgetary problems) than for the fact that they draw embarrassingly critical media attention and, just as important, they allow the activists to change the frame of the debate from “a few bad apples” to “systemic and structural problems”. Third, reformist elements within the professional bureaucracy use the public embarrassment of the media responses to the liability campaign to implement bureaucratic procedures that embody the new ideas. And, fourth, activist groups and grassroots citizen organizations work (not always successfully) to keep the accomplishments real by making sure that the procedures involve real substance and not simply a very elaborate window-dressing behind which performance slides toward “business as usual.”
The model is then much more briefly applied to several other policy areas to demonstrate its generalizability. First, there is a chapter looking at the parallel process of police practices in the United Kingdom; then, there is a chapter looking at the development of sexual harassment policy in the United States; and finally, there is a chapter looking at the development of playground safety policies in the United States. This is something of a curious grab-bag of examples, but of course this is precisely the point. There are real differences between them and the core example (one deals with the quite different organization and culture of another country, another looks at a policy field that is largely populated by private corporations rather than government departments, and the third deals with an area in which the rights involved are much less dramatic and high profile); the very fact that the same “legal accountability” model can nonetheless be applied to them, and the elements of the trajectory usefully frame a discussion of real policy changes that have taken place within them, validates its basic value.
Is it possible to see this latest book as a continuation of the earlier one, as a sort of “volume two” that is part of a single broader project? The answer is, simultaneously, “no” and “yes.” To the extent that one saw his earlier book as fitting under the rubric of judicial power (as this reviewer confesses he always has), then it does not. If the theme of the first book was implicitly “high courts don’t matter as much as you might think”, the message of this second books is “courts don’t matter much at all,” being the least important of the trilogy of activist groups, judges, and bureaucratic professionals. It does seem to me that he downplays the role of the courts a little too much — even if the awards in liability cases are too modest to constitute a real problem in themselves for the bureaucracies, it is nonetheless the case that judges have to be awarding these damages in amounts large enough to draw ongoing media attention, they have to be buying into the activist frame for these law suits (not “a few bad apples” but systemic deficiencies), and they have to be treating the presence or absence of elements of the legal accountability “package” as speaking to liability. However, this qualifies rather than denies his “least important of the triad” argument, and it remains the case that this book is almost entirely about something other than judicial power in any simple sense.
However, to the extent that one saw his earlier book as playing up the civil society origins of the drive toward a rights based society, emphasizing the role of judicial activists and grass roots organizations, then this book is very much the other half of the story. It represents the “second face” of judicialization that Tate and Vallinder suggested in their 1995 Global Expansion of Judicial Power — if the first face is the expansion of judicial policy-making into realms previously dominated by majoritarian institutions, the second is the extension of legalistic and court-like rules and procedures into decision-making arenas not previously characterized by such procedures. And it continues to emphasize the rights-based society as an extension of civil society, not as some kind of elitist intrusion into it. In this sense, it is a continuation of his earlier argument; and in this context, the book is a useful and interesting contribution.
Peter McCormick is a professor of political science at University of Lethbridge in Lethbridge, Alberta.