Editorial: In this issue; Guest Editorial: Islands and ocean: Public law and international legal ordering in Oceania; Ten good reads

In this issue

In his Guest Editorial, which readers will find directly after this section, Guy Fiti Sinclair, member of the ICON•S 2023 organizing committee, explores some of the themes of the forthcoming ICON•S conference on “Islands and Ocean: Public Law in a Plural World.”

Our annual Honor Roll of Reviewers lists the many colleagues who acted as peer reviewers for ICON in 2022. The Editorial Team is grateful to these colleagues who generously devoted their time and efforts to ensure the excellent scholarly standards of the Journal.

The Articles section includes five contributions. Virgilio Afonso da Silva investigates the role of the necessity test in applying the principle of proportionality. While it is often underestimated, the necessity test has strengths, especially as it relates to politics, knowledge from other areas, time, and technological development. Da Silva argues that shedding light on these strengths has important implications for several ongoing debates around proportionality.

Amichai Cohen and Yuval Shany focus on Israel’s High Court of Justice (HCJ) and its transition from occupation law to human rights law. They argue that this shift constitutes a potentially important step towards confronting the systematic discrimination against Palestinians, which the occupation law paradigm failed to prevent.

Stéphanie Hennette Vauchez analyzes the routinization of emergency powers, with specific reference to France. She shows that, rather than derogating from or suspending the legal order, contemporary emergency powers are intensely juridical, and their exercise is often supported by the claim that they are fully compatible with the rule of law. Precisely this justification, as well as the use of forms and language of the rule of law, make the contemporary exercise of emergency powers more dangerous as they subvert the model’s meaning and sense from the inside.

The article by Bell E. Yosef deals with dialogic judicial review. The author argues that, on the one hand, the dialectic interaction between supreme courts and legislatures regarding the constitutionality of legislation has much value from an institutional and instrumental point of view. On the other hand, however, constitutional dialogue can also have a negative influence on petitioners and similar groups, as their rights are being trampled under a “dialogic veil.” She concludes that constitutional dialogue can and sometimes must be restricted to avoid hindering human rights, and she sketches a doctrine designed to prevent impairing human rights in the name of dialogic interaction.

Finally, Timothy Endicott poses the question whether the law should prohibit all injustices and give recourse against them—he gives the name “the rule of justice” to the imaginary state of affairs in which it does so. Ultimately he argues that the justification for legal measures should instead be grounded in a political principle, i.e. that the law ought to make the political community a good one.

The Symposium section features a set of articles on Pluralizing Constitutional Interpretation, which aims to expand the analysis of constitutional interpretation beyond court rulings and legal materials to provide a more complete understanding of constitutional engagement between different institutions and actors. The symposium opens with an Introduction by Maartje De Visser and Jaclyn L. Neo, the symposium conveners. They discuss three directions for pluralizing constitutional interpretation: pluralization of actors; methodological and disciplinary pluralization; and pluralization of orientation, characterized by intersecting viewpoints and sites of interpretation.

The second article of the symposium, also authored by Maartje De Visser and Jaclyn L. Neo, addresses the question of what a pluralist institutional approach to constitutional interpretation should look like. They suggest an approach that goes beyond the court-centricity that characterized much of the earlier work on constitutional interpretation to include the role of other actors, including executives, agencies, and social actors, in constructing the meaning of the constitutional text.

Andrew Harding’s article then focuses on “practical interpretations”—that is, constitutional interpretations given by the executive or legislative branch. It does so principally in relation to constitutional conventions in Westminster-type systems, which are normally not subject to judicial review. He underscores that these practical interpretations are at least equally as important as judicial interpretations and that more scholarly attention should be devoted to understanding them.

Lynette J. Chua moves “out of the courts and onto the ground”: her article emphasizes the relevance of the study of legal consciousness, particularly that of ordinary people, to constitutional interpretation.

In the last article in this section, Kevin Y.L. Tan investigates the question of when and how historical facts are used in constitutional interpretation. He shows inter alia that history may be used to restrict rather than promote liberties and can be abused to introduce unwritten customary constitutional law.

The Critical Review of Governance section offers an article by Franz Xavier Barrios-Suvelza on the concept of coup d´état. Taking as a case study the resignation of Bolivian President Morales in 2019, the article proposes a new conceptualization of the coup d´état: a coup must not only be illegal but must also break the partial legal order. The author proposes this different notion of regime restoration for all those cases in which the partial legal order underlying the regime has already been broken by the overthrown ruler prior to her/his anomalous exit.

In our Critical Review of Jurisprudence section, Maurits Helmich addresses criticism targeting the United Kingdom Supreme Court’s legitimacy and its tendency to enter the domain of “politics.” Taking the 2019 Miller/Cherry “prorogation” judgment as a case study, he analyzes the tension underpinning this criticism. He concludes that attempts to distinguish the judicial domain from the domain of politics are themselves rooted in ideologically deeply colored definitions and acts of political stance-taking.

The ICON: Debate! section hosts an exchange between Antoine Vauchez and Frank Vibert on independence in Europe. Vauchez explains how the European Union has been a laboratory for the notion of independence. Indeed, it promoted a shift from a notion of independence as a negative institutional device (independence from) to that of a broad empowering technology of supranational government linked to notions of general interest, professional expertise, and discretionary powers (independence for). The objective is to frame a more robust and democratically open notion of independence to which European and national policymakers can be held accountable. Vibert’s reply to Vauchez deploys a constitutional perspective to analyze independence, and argues that far from being a benign “proxy” for Europe’s constitutional evolution, “independence” obscures the real issues and the costs to the EU of prioritizing functional objectives over democratization.

This issue includes six book reviews that examine books covering different jurisdictions and topics. Christoph Schönberger’s review of Authoritarian Liberalism and the Transformation of Modern Europe by Michael Wilkinson scrutinizes the transformation and reconfiguration of Europe after the Second World War. Ching-Fang Hsu analyzes the legal complex in Myanmar and its interaction with political elites in her review of Rule of Law Intermediaries by Kristina Simion. In his review of Key Ideas in Law by Jack Beatson, Brian Christopher Jones revisits some of the oldest yet unsolved puzzles in the realm of law. Kriszta Kovács and Gábor Attila Tóth advance a different viewpoint on the notion of democracy, among other things, in their review of Ruling by Cheating by András Sajó. Andrej Lang’s review of Local Meanings of Proportionality by Afroditi Marketou reveals that a contextual understanding is crucially important in understanding proportionality. Finally, in his review of The Gun, the Ship, and the Pen by Linda Colley, Yasuo Hasebe aptly points out that reverence for the Emperor is not an entrenched tradition in Japan but a new invention.

EM

Guest Editorial: Islands and ocean: Public law and international legal ordering in Oceania

We invited Guy Fiti Sinclair, member of the ICON•S 2023 organizing committee, to contribute a Guest Editorial.

This year’s annual conference of the International Society of Public Law (ICON•S) has the capacious theme of “Islands and Ocean: Public Law in a Plural World.” Hosted by Victoria University of Wellington and the New Zealand Centre for Public Law, it will be the first ICON•S conference held in Oceania.¹ Aside from Australia, this is a region that has received relatively little notice in the pages of this Journal.² Philipp Dann recently issued a welcome call for a Global South “turn” in comparative constitutional law.³ Extending that argument, this Guest Editorial argues that public law in the small island states and territories of the Pacific should be understood as deeply shaped by colonial, postcolonial, and neocolonial encounters, which continue to inform projects of international legal and political ordering both from without and from within the region.⁴ In doing so, it sketches some possibilities for greater scholarly engagement with public law issues, both domestic and international, in this often-overlooked part of the world.

1. (Post)colonial public laws in the Pacific

Some readers of I•CON may doubt whether any further attention to Pacific island states and territories is warranted, given their relatively small populations and economies, and thus presumptively marginal public law jurisprudences. Consider, however, that the Pacific Ocean covers roughly a third of the earth’s surface, encompassing untold natural resources, including islands that are home to approximately one-third of the world’s languages and cultures. These include legal cultures which have been objects of interest to European anthropologists from Malinowski onwards.⁵ Indeed, the great diversity of island states in Oceania—notwithstanding certain historical and cultural links across its expanse—and their varied encounters with European imperialism have resulted in a fascinating array of (ongoing) experiments and challenges in combining Indigenous customary law, judge-made law, statute, and international law.⁶ In the settler colonies of Aotearoa New Zealand and Australia, similarly, a number of innovative approaches have been attempted and proposed to enhance Indigenous rights and self-governance, with significant public law implications.⁷

Two excellent recent books suggest opportunities for further exploration of colonial legacies in public law in Oceania, from a range of perspectives. Writing in a comparative constitutional law idiom familiar to I•CON’s readership, Anna Dziedzic’s Foreign Judges in the Pacific examines the unusually heavy reliance on foreign judges in courts of constitutional jurisdiction in Pacific states.⁸ Skillfully deploying both socio-legal and doctrinal methods to analyze and evaluate this phenomenon in nine Pacific states, Dziedzic reveals some of the lasting impacts of colonialism in a region that experienced formal decolonization relatively late, and where a dozen or so territories remain de jure or de facto colonies. In doing so, she also demonstrates that “the constitutional experiences of the Pacific islands are worthy of close attention in and of themselves, as single country as well as regional comparative studies.”⁹ The timeliness of Dziedzic’s study became apparent last year, when the government of Kiribati suspended several foreign judges serving on its High Court and Court of Appeal.¹⁰

Cait Storr’s International Status in the Shadow of Empire approaches colonial legacies in Oceania through a critical history of Nauru’s changing status in public international law.¹¹ Consisting of a single island of 21 square kilometers, Nauru is the third smallest state in the world, though for a time it was one of the wealthiest due to phosphate mining. Storr traces the administrative practices involved in Nauru’s governance as a German protectorate to a League of Nations Mandate, a United Nations Trust Territory, and eventually to independence in 1968. Crucially, Storr also shows how Nauru’s shifting status relates to continuities in imperial exploitation of Nauru, its people and natural environment, up to and including the establishment on the island of an offshore immigration detention facility for the Australian government and a new deep-sea mining venture. Storr offers a compelling account of “Nauru as symptom” of the international legal order,¹² disclosing the lasting impacts of the latter on Nauru’s domestic legal and political system. Equally illuminating studies could be constructed from the experiences of other Pacific states, linking international and domestic public law through distinct experiences of colonialism, decolonization, and postcolonial state-making.

2. International ordering from without

As these examples indicate, Oceania—whether imagined as the “South Seas,” “South Pacific,” “Pacific islands,” or simply “the Pacific”—has long been shaped by projects of international ordering by external actors. Indeed, recent events confirm that Oceania remains a region of strategic importance for “great power” rivalries and activity. In April of 2022, when much of the world’s attention was fixed on Russia’s invasion of Ukraine, China signed a secret security agreement with the government of the Solomon Islands, a country of around 700,000 people and over 900 islands, positioned west of Papua New Guinea and northeast of Australia. A leaked draft of the agreement appeared to authorize China to make regular warship visits to the island nation and raised the possibility of it acquiring its first military base in Oceania.¹³ The following month, China’s Foreign Minister Wang Yi began an unprecedented tour of eight Pacific Island countries, with the aim of persuading these countries to sign up to a multilateral development and security agreement that would secure China’s position in the region.¹⁴

Though that overarching aim was not achieved immediately, China’s success in concluding bilateral agreements with ten Pacific Island states set alarm bells ringing in Washington, DC, Canberra, and the capitals of other states around the Pacific rim. These countries in turn launched new diplomatic initiatives to win back the allegiance of Pacific Island states. In July 2022, Vice President Kamala Harris addressed the Pacific Islands Forum via video link, pledging the United States’ renewed commitment to the region and announcing that new US embassies would be opened in two Pacific states, in addition to one in the Solomon Islands.¹⁵ Two months later, the Biden administration hosted the first US-Pacific Island Country Summit at the White House, issued a “Pacific Partnership Strategy” and a joint “Declaration on US-Pacific Partnership” with 14 Pacific Island nations—again including the Solomon Islands—and pledged over $810 million in new aid to the region.¹⁶

These events took place against the background of at least a decade of growing concerns about the rising influence of China, from the Obama administration’s “rebalance to Asia and the Pacific,” Australia’s “Pacific step up,” and New Zealand’s “Pacific re-set.” Since then, the geopolitical imaginary of the “Indo-Pacific” has been firmly established as a broad counter-strategy to China’s Belt and Road Initiative (BRI), largely displacing the earlier mental map of “Asia-Pacific.” The “Indo-Pacific” framework shapes policy statements produced by multiple states—the United States, Australia, Japan, South Korea, Canada, France, Germany, and the Netherlands, among others—as well as international organizations, such as the European Union (EU) and the Association of Southeast Asian Nations (ASEAN). It also informs security arrangements, such as the trilateral pact between Australia, the UK, and the US (AUKUS), the Quadrilateral Security Dialogue between Australia, India, Japan, and the US (the Quad), and even NATO.¹⁷

Despite comprising half of both terms, the Pacific remains as much a secondary player (or perhaps afterthought) in the “Indo-Pacific” as it was in the “Asia Pacific.” In the new Indo-Pacific strategies—the EU’s is a useful example here¹⁸—Oceania is largely objectified as a source of valuable natural resources, as a medium of international trade, or as an arena for strategic competition and, potentially, conflict. At best, it is depicted as a region in need of outside aid and assistance. In other words, Pacific peoples, governments, and intergovernmental organizations are granted very little agency in these new efforts to re-order the Pacific region. For all the talk of “partnership” that runs through such documents, they tend to contain only passing reference to Pacific regional organizations, scant acknowledgement of the efforts being made by Pacific states to address the issues that concern them, and certainly no mention of the role of Indigenous knowledge and practices in solving problems of global significance.¹⁹ Other “megaregional” arrangements, such as the Asia-Pacific Economic Cooperation (APEC), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), and the Regional Comprehensive Economic Partnership (RCEP), exclude Pacific states, other than Australia and New Zealand, almost completely.

3. International ordering from within

Yet students of public law in Oceania would be well advised not to ignore arrangements for regional international ordering of a more home-grown provenance. During the 1970s and 1980s, Pacific states worked together through regional bodies centered on the South Pacific Forum (renamed the Pacific Islands Forum (PIF) in 1999)—including the Forum Fisheries Agency and the Pacific Islands Development Program—to advance their shared priorities and vision for the region. Supported by a burgeoning civil society, the goals pursued through these agencies met with considerable success, even when these conflicted with the interests of powerful states: decolonization, development, a nuclear-free Pacific (including opposition to both French nuclear tests and Japanese dumping of nuclear waste), environmental protection (ending Japanese driftnet fishing and opposing US incineration of chemical weapons on Johnston Atoll), and establishing the archipelagic principle in the UN Law of the Sea.²⁰ The ongoing significance of these institutions was underscored last year when Pacific states insisted that China’s proposed multilateral security pact be considered by the Forum, as the region’s premier security body, which has traditionally operated by consensus.²¹

In the past decade or so, a more complex “patchwork” of overlapping and interacting institutions has sought to advance Pacific island states’ interests in Oceania and globally.²² In addition to the Forum-centered bodies described above, this patchwork incorporates reinvigorated subregional organizations, such as the Melanesian Spearhead Group, which successfully pushed for the reinscription of New Caledonia on the UN’s list of Non-Self-Governing Territories, and groupings such as the Parties to the Nauru Agreement, which has been very effective in securing higher incomes for tuna states.²³ It also includes agencies created to negotiate trade agreements on behalf of Pacific island states, such as the Office of the Chief Trade Adviser, which negotiated with Australia and New Zealand over PACER Plus, and the African, Caribbean and Pacific Group of States, which is attempting to negotiate a new post-Cotonou partnership with the EU. And it encompassed the creation of a new international organization, the Pacific Islands Development Forum (PIDF); the rise of the Pacific Small Island Developing States Group (PSIDS) at the UN; and greater involvement of Pacific states in Global South and non-aligned groupings.²⁴

The fortunes of these various forms of international legal ordering have been—and no doubt will continue to be—entangled with domestic law and politics, and fundamentally shaped by colonial, postcolonial, and neocolonial dynamics.²⁵ Some of the more assertive postures and practices associated with the “new Pacific diplomacy” thus emerge from the more activist foreign policy adopted by Fiji following its suspension from PIF, in the wake of a constitutional crisis in 2009.²⁶ Those events in turn can be traced back to a series of coups as Fijian law and politics have struggled to resolve ethnic divisions between Indigenous Fijians and a large Indo-Fijian population, descended from indentured laborers brought to the country to work on colonial sugar plantations.²⁷ On the other hand, PIF’s prestige was significantly damaged last year when Kiribati became the first member to withdraw from it. While the ostensible reason for Kiribati’s withdrawal was a dispute over the selection of PIF’s Secretary-General, domestic opposition forces have accused the government of bending to influence from China.²⁸

4. Climate change and the “Blue Continent”

One of the main drivers of the “new Pacific diplomacy” was a deep dissatisfaction with existing regional institutions which, dominated by Australia and New Zealand, were insufficiently responsive to Pacific island states’ concerns about climate change. Indeed, the interrelated threats of climate change, rising sea levels, and biodiversity loss have galvanized political and legal action in Oceania to a degree not witnessed since the heyday of the movement for a Nuclear Free and Independent Pacific. PIDF and the PSIDS grouping at the UN, in particular, became key catalysts and mouthpieces of Pacific states’ climate diplomacy. Other actions have been led by individual states, such as the Vanuatu-led campaign seeking an advisory opinion from the International Court of Justice on obligations of states in relation to climate change and environmental protection.²⁹ As in previous eras, new civil society groups, many of them led by young people, such as the Pacific Climate Warriors,³⁰ have coalesced around climate-related issues.

All this suggests the need for closer scholarly attention to international legal ordering “from below” in Oceania. As the Tongan anthropologist Epeli Hau‘ofa argued thirty years ago, the common (colonial, economistic) view of Oceania—as small and isolated islands, with tiny and impoverished populations—belittles its peoples and potentialities. To the contrary, the history of seafaring, exploration, and interaction across the vast Pacific ocean supports a more expansive, holistic, and empowering imaginary of pan-Oceanic solidarity, substituting “islands in a far sea” with “a sea of islands.”³¹ Inspired by a similar conception, Pacific regional organizations have adopted strategies that center on the “Blue Pacific Continent,”³² seek new models of “Green/Blue Pacific Economies,”³³ and are replacing the language of “small island states” with “large ocean states.”³⁴ Only time will tell whether these strategies are successful, what positive and negative effects they have, and to what extent they are taken up sincerely or coopted by other interests. In the meantime, surely they deserve our attention as scholars, if not our wholehearted support as citizens of the world. Given the Pacific Ocean’s importance to the future of human life on this planet, perhaps we all can aspire toward realizing Hau‘ofa’s vision:³⁵

Oceania is vast, Oceania is expanding, Oceania is hospitable and generous, Oceania is humanity rising from the depths of brine and fire deeper still, Oceania is us.

Guy Fiti Sinclair

Associate Professor and Associate Dean (Pasifika), Auckland Law School,

University of Auckland, New Zealand,

and Senior Research Fellow of the New Zealand Centre for Public Law (NZCPL), Victoria University of Wellington, New Zealand

Ten good reads

Here is my pick of “Good Reads” from the books I read in 2022. I want to remind you, as I do every year, that these are not “book reviews,” which also explains the relative paucity of law books or books about the law. Many excellent ones have come my way in 2022, as in previous years, but an excellent law book is not always, in fact rarely is, a “good read” in the sense intended here: curl up on the sofa and enjoy a very good read, maybe even as a respite from an excellent law book. I should also point out that some of these “good reads” are not necessarily literary masterpieces—and yet, still, they are very good reads.

Moshe Halbertal and Stephen Holmes, The Beginning of Politics: Power in the Biblical Book of Samuel (Princeton University Press, 2017)

Inspired by this wonderful volume, which analyzes the Book of Samuel, I recently gave a talk entitled “Politics, Power and Authority? Forget Machiavelli—It Is All in the Book of Samuel.” Alongside King David, Machiavelli’s Prince is a mere apprentice. Machiavelli taught “Never do an enemy a small injury.” David could have said (but was smart enough to keep this counsel to himself) “Never leave an enemy alive.” He was also smart enough to leave the killings to his lackeys and then wash his hands of it. (He did spare Saul’s life, caught with his pants, literally, down—a smart move by a smart political operator.)

From Halbertal and Holmes’ book you will learn (a lot), become wiser (a lot), and derive pleasure (a lot). The book is not only a profound study of the building blocks of politics, but also a masterly exercise in literary analysis. And without compromising its scholarly depth, it reads so well.

In fact, this recommendation is a “two for the price of one,” for after reading The Beginning of Politics you will not need my exhortation to go and read the Book(s) of Samuel. And for those who have read it before, you will read it with new eyes.

“Samuel?,” you may be thinking, “is it not just one of those turgid biblical repetitive narrations of that inimitable skill of the Israelites to frustrate the Almighty, generation after generation?” Think again. As story and drama it has it all: the tale of the House of Saul and the House of David has not only palace intrigues, bloody wars both internal and external with exquisite drama (think of David and Goliath as mere appetizer), there is also fratricide, murder, rape, incest. If Netflix were to ask me which Old Testament Book would make for the best series, it would have to be Samuel. It would leave Game of Thrones and its prequel in the dust. (I am not sure how much of a recommendation this is!)

Jean-Philippe Toussaint, La Salle de bain (Les éditions du minuit, 1985), The Bathroom (transl. Nancy Amphoux and Paul De Angelis, Dalkey Archive Press, 2008); L’appareil photo (Les éditions du minuit, 1989), Camera (transl. Matthew B. Smith, Dalkey Archive Press, 2008)

If Halbertal and Holmes made it to the top of the saggistica list, Toussaint makes it to the top of the Belles Lettres. Reading his first (1985) novel (La Salle de bain) and his second (1989) (L’appareil photo) I kept thinking with remorse—better late than never. For how could I have been oblivious to such genius for almost 40 years? And of course, since reading (and rereading) these two slim volumes I have been working my way through the remainder of his work. I consoled myself, in the self-deceiving manner of the aging and aged, that maybe it was an advantage to come to him later in life.

You can already sense that I am writing about Toussaint with the same enthusiasm I have towards, say, Sebald. And there are some parallels, parallels which go to style rather than content. There are very good novels. And then there are very good novels, which at the same time change the way we think about The Novel. A little bit like, say, those who pioneered a New School in painting. Toussaint belongs to this rare second category.

Prepare yourself for a little shock when beginning to read The Bathroom. But please, please do not be put off. It takes a little while to get the hang of it, but then it just sweeps you in. The books are short, but unlike, say, Von Schirach about whom I write below, not to be read in one gulp. For fun I read the Italian-, Spanish- and English-language editions (the choice of graphics for the covers amused me). The translations are, commendably, fine.

What are the books about? It is not the case here of not wanting to risk a spoiler. It is just so difficult actually to explain or even describe what they are “about.” You will understand when you read them. But here, too, do not be put off. Bear with it and you will be seduced. I will give you one teaser: L’appareil photo is possibly the most delicate love story I have ever read.

Tommaso Pavone, The Ghost Writers (Cambridge University Press, 2022)

My generation of European Law lawyers are hopelessly Court-centric. That’s what we know (or think we know). That is what interests us. European Law is about the Court of Justice of the European Union. Already years ago, Jo Shaw inveighed against this narrow view, which tends to leave out the main corpus of the law—legislation. She was right. You cannot write knowledgeably about the state of health of a country by simply visiting its hospitals. But there is another blind spot (more a black hole than a spot) in the Court-centric view of European law: the role of lawyers—in bringing cases, in arguing cases, in strategizing litigation, in virtually putting words in the mouth of the judges. Indeed, oftentimes the judgments we admire most are not the result of the genius of the judges but of the lawyers. I suppose the fundamental role of the Commission (and its Legal Service) has received attention, recognition (and critique), already going back to Eric Stein. But Pavone stretches his canvas far wider and he does so with verve and brilliance. The book has a thesis—almost conspiratorial in nature—which you might find at times overstated. I did, but this did not, and does not, detract from my high opinion of the book. For innovators, a modicum of exaggeration is a virtue, an indispensable virtue. Be that as it may, you are unlikely to think of Integration through Law in quite the same way as you did after reading this stimulating book. And by the nature of the enterprise, the book is attuned to the political and social context of European law, which has come to impact our lives in so many ways.

The underlying normativity of the book was not always clear to me, but that might be my own shortcoming and, in any event, even if I am right and it is not clear, here too, I regard this as a virtue. Last but not least, and this is what explains its appearance in this year’s list, it is a very good read.

Ferdinand von Schirach, The Collini Case (Penguin, 2013)

Von Schirach is a prominent German criminal law lawyer. He is also a best-selling author (translated into a million languages), several of whose books have been made into films. His life as a lawyer and some of the cases in which he acted provide the background (and at times much more) of his stories and novellas. For example, he recounts in Crime and Guilt (which I read years ago) his very first case—a harrowing tale of gang rape (the “gang” in question being a group of the most respectable citizens of a small town in Germany—in which he acted as defense attorney and in which he (and his fellow attorneys) got the culprits off the hook on a procedural technicality. It was, in his own words, the “loss of innocence” in his new profession. It will stick in your mind forever.

Although The Collini Case is one of his most famous, I got to it only this year. It is the epitome of a Good Read. Von Schirach is introspective and thoughtful, and getting the guilty acquitted is balanced by getting the wrongly accused acquitted. His conscience thus remains pure (I say this tongue in cheek). The stories and novellas are not truly profound, but are always thought-provoking. But what makes him such a good read and, justly, such a popular and best-selling author is his remarkable storytelling talent. You can intuit why he is such a successful lawyer, though the reverse relationship does not often work …

The Collini Case is a case in point. I want to avoid spoilers, but the manner in which he weaves his tale (based on a real-life prominent and notorious case) draws you ineluctably in. It is the kind of book, short, which you will read in one afternoon without putting it down. And even though the twist at the end is foreseeable early on, you will still not be able to put the book down. Von Schirach is, too, an acute social observer of contemporary Germany. Not great literature, a very good read.

Signe Rehling Larsen, The Constitutional Theory of the Federation and theEuropean Union (Oxford University Press, 2021)

I am sure that the title alone will evoke a yawn or grimace of the “not again” genre. Can we not put behind us the EU identity navel-gazing? So I thought. Then I heard a talk by the author at the ICON-S Annual Meeting in Wroclaw this year and decided I must take a look at the book. If you are an EU scholar, I think you should too. It’s not some blinding insight that will strike you, nor will you agree with everything. Well, how could you? Three European scholars means four opinions on “what the EU is.” Instead, it is not only refreshing to revisit the old debates (speaking as one of the General Editors and authors of Integration through Law—Europe and the American Federal Experience of ‘80s vintage). But Larsen is judicious and insightful in what she deals with, and manages to make the discourse relevant, very relevant to contemporary debates (and hand-wringing) about our beloved Union. And, crucially, it’s of very manageable proportions and a good read.

P.D. James, An Unsuitable Job for a Woman (Faber & Faber, 1972)

As a crime/detective writer, P.D. James is second to none. I think years back I must have read all her Adam Dalgliesh novels and watched the excellent BBC TV series—way before series became the preferred genre of the big studios. They are still available on YouTube. But somehow, I was oblivious to the Cordelia Gray novels. (And please don’t jump to facile conclusions.) An Unsuitable Job for a Woman is the first of these and having finally read it I discovered to my regret that she apparently only wrote one more. It is vintage P.D. James—a compelling page turner. But Cordelia Gray is not simply a female Adam Dalgliesh. He, experienced, poetry lover, melancholic at times, and almost at the point of burnout. She, young (22 years old), accidently takes a job with a failed (but very wise) private detective whose agency is at the point of bankruptcy and who commits suicide at the beginning of the tale (this is not a spoiler), leaving her to tackle on her own her first independent case. She did “read” (as they say in British university circles) English lit. at college, a fact that plays an important part in the story. Indeed, it is a very “Cambridge” tale. P.D. James not only tells a very good story, but is a keen observer of the human and social condition. It is a “one day, one gulp” book, but a satisfying read at that.

Bruno Schulz, Collected Stories (transl. Madeline G. Levine, Northwestern University Press, 2018)

If you read David Grossman’s first novel, See Under: Love, you will have come across Bruno Schulz in a fantasy chapter “dedicated” to him. The circumstances of his death are as harrowing as they are grotesque. When in Operation Barbarossa the Germans took over Drohobych (in the Lviv area) from the Soviets (who had occupied that part of Poland), a ghetto was established—a one-way road to the Belzec extermination camp. But Schulz, a resident of Drohobych, was a gifted painter as well as an extraordinary writer (he won the Polish Academy of Literature Golden Laurel award in 1938—at the very end of those twenty culturally golden years of post-WWI Polish independence) and was offered protection—as his “personal Jew”—by one Landau, a German Gestapo officer, in exchange for painting for him. In 1942 Schulz was shot in the street by another German Gestapo officer, one Guenther, as an act of revenge. Apparently, Landau had murdered Guenther’s “personal Jew,” so here was payback. Schulz was fifty years old at the time of his murder.

He was not prolific, and important parts of his writing did not survive. He is most famous for Sklepy Cynamonowe (1934), translated into English as The Street of Crocodiles. I read some Schulz when I was far too young, and it left no impression on me. But seeing that a new translation appeared (in 2018), I read it again this year. It is a masterpiece. It is a series of short stories relating to his local habitat. If you read it, you will understand why it so impressed the literary world then and now. It has one of the characteristics of a classic since it is at one and the same time minutely focused in space and time, and yet it is universal in space and is timeless. Even in translation (the Polish original defeated me, sigh), his descriptive powers as regards smell, colour, and the normal objects and goings on of daily life, not to mention his acute observation of his human subjects, are close to mesmerizing. Schulz (like Olga Tokarczuk) also gives lie to the usual well-meaning (and foul-meaning) descriptions of relations between Jews and Poles. In Schulz there are no Polish Jews, but Jewish Poles, and their relationship to their fellow Catholic Poles covers the whole gamut of sociality, as one would expect if one could rid oneself of the habitual stereotypes.

Schulz had a dark view of life in general, so do not expect cathartic moments. But you will find big words, an additional gloss on the human condition—where the universal can only be grasped through the local. Great writer—good read.

Benito Pérez Galdós, Trafalgar (Edición de José Andrés Álvaro Ocáriz) (Desiréediciones, 2017)

If you think Trafalgar, or for that matter Waterloo, and if you have grown up in the English-speaking world, you might normally think of the genius and bravery of Nelson and the strategic brilliance (and luck) of Wellington. You (or at least I) do not give much thought to the vanquished.

Trafalgar, first of Benito Pérez Galdós’ (1843–1920) nineteen Episodios Nacionales of Spanish history, is a classic correction to such. It is written in novelistic form, from the perspective of a young, inexperienced sailor (Gabriel), who joins the Spanish/French Armada on the eve of the famous battle. (In this he is reminiscent of the young Fabrice del Dongo, he of Stendhal’s La Chartreuse de Parme, who experiences Waterloo as a foot soldier and only catches a glimpse from the muddy field of Napoleon’s gown passing by on his horse.)

It is by no means a revisionist history, nor an apologetic account—though he does express his (historically justified) disgust at the French Admiral Villeneuve, who botched the battle for the Spanish–French alliance.

From a literary point of view, the book belongs to the nineteenth-century school of realism—and is really rather good as such—though by no means, in and of itself, is it a “great” novel. Its importance is that in the genre of fictionalized history, it is not a history of kings and heroes—an Upstairs tale—but gives the view from Downstairs. And that, of course, gives it a human touch, which is helped by a good dose of humour and irony and which never deteriorates to self-lacerating despair and cynicism, such as one finds in, say, that other true masterpiece of the vanquished All Quiet on the Western Front. But it shares with Remarque a revulsion to war. I suppose we must be grateful to authors of the vanquished for debunking the glorification of armed conflict.

If you are interested in the historicity of the battle as well as the novelistic, I recommend the Critical Edition of 2017 by José Andrés Álvaro Ocáriz, himself a gifted poet and author.

Fernando Aramburu, Los peces de la amargura (Tusquets Editores, 2009)

This is a collection of short stories by Aramburu (he of Patria fame). I think this is a perfect introduction to this gifted author, though written after some of the novels that made his name. It has become somewhat à la mode in certain Spanish circles to critique Aramburu as “not really deep” and similar such characterizations. Pay no attention. Pure jealousy, which is the usual lot of serious authors whose work gains a popular appeal, is made into movies, and the like.

I had not before this year read any short stories by him—I am not even sure if he has other short story collections. The transition from novel to short story is neither obvious nor always successful, as is the case with the transition from short story to novel. (Think Maupassant, with the possible exception of Bel Ami, or Cheever—masters of the short story, mediocre novelists.) Aramburu is as good a short story author as he is a novelist. The collection ends with a story in the form of a play, Después de las Llamas. It is a jewel. And I can say with some confidence that no matter your taste in Belles Lettres you will find this collection a very good read.

Alda Merini, Vuoto d’amore (Einaudi, 1991)

This anthology of Merini’s poetry was a present, which collected dust on my shelves since 2018, and finally it (and I) found redemption. Another “better late than never”—with a vengeance.

The poetry is essential, exquisite, and at times shattering. Merini had a difficult life, including a period of psychiatric hospitalization, reflected in her 1984 collection La Terra Santa—personal and intense, some of which is included in this volume. But let that not deter you. The pain is never lachrymose, the suffering never self-pitying. And in quite a few of the poems, love letters in the form of poems, there is a subtle and delicate humorous irony, including self-irony. It is, too, the poetry of a ferociously strong woman.

This is the poem that opens this anthology:

Lo sguardo del poeta

Se qualcuno cercasse de capire il tuo sguardo

Poeta difenditi con ferocia

il tuo sguardo son cento sguardi che ahimè ti hanno

guardato tremando

A short “theological” epilogue

Among my friends, my passion for literature is well known. “How do you find the time? What is your secret?,” I am so often asked. And yes, I believe that I am as busy an academic as the next one. We all know that the moment we are appointed to an academic position, we can wave goodbye to La Vita Contemplativa. It is a life of juggling teaching with research and writing and with the endless other commitments of academic citizenship. There is always a deadline looming, a paper for which you begged “…one more weekend please, Monday morning, no fail.”

It is a form of slavery to our work (the charitable view) or (the less charitable view) to our ambition.

What, then, is “my secret”?

In Mark 2:27 Jesus famously said, “The Sabbath was made for man, not man for the Sabbath.” ”Yes, but,” replies this Pharisaic Jew… (you expected this “Yes, but”). My view, for what it is worth, is that only if one accepts in the deepest sense that man was made, so to speak, for the Sabbath, will the Sabbath end up being made for man.

During the twenty-five hours of the Sabbath, there are no emails or WhatsApps, no computer or TV, no work-related activities (that Monday deadline notwithstanding), no shopping, no use of vehicles. It is a time out of time. And ritual commitments fulfilled, one can turn to other spiritual activities of which reading Belles Lettres surely is. Add to the Sabbaths the various Holy days (not holidays, I fear) and one ends up with quite a lot of time for non-work-related reading each year.

Two caveats are in order: first, if this reads like some form of Jewish evangelizing—“become a Jew and observe the Sabbath”—perish the thought. I would not wish such even on my enemies (well, maybe on one or two I would). But assigning to yourself a day a week that takes you out of the normal rhythms of daily life, of work, and ambition may be worth a thought.

Second, Judaism, alongside the other monotheistic religions, is notorious for some aspects of its attitude towards women, Sabbath observance being one such case. Partly in law, partly in custom, household chores and childcare are left to women, and thus the guys can have a rewarding spiritual time. There are, of course, egalitarian ways of sharing the burden and for some time now there have been vibrant forms of egalitarian Judaism trying to address among many other issues that too.

***

If you are interested in previous Good Reads recommendations, see here

JHHW

Footnotes