Ten Good Reads (Vol. 27: 1)

By the time this issue comes out, it will be more like Easter reading recommendations than Christmas ones. But as is now our custom,  I list 10 of the books I read during the last year which stood out and which I do not hesitate to recommend to our readers. The law books – six in all – are actually all relatively recent. Sebald’s essay and the novels span a century, a pick of some of the best I happened to read during the year. The 10 books are listed in no particular order. Enjoy!

Michaela Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism (Oxford University Press, 2015)

A mature and very readable book (not always the case with German scholarship) by a young scholar, constituting a nice balance between synthesis and analysis of ‘German Constitutionalism’, with a focus on the German Constitutional Court.  Foreshadowed by her 2014 article in I•CON the book is laudably ambitious, providing a history and historiography of court, state, society and the constitutional order. Some of the terrain was covered some years ago by Ulrich Haltern’s striking doctoral dissertation, but the treatment is fresh and her fertile concept of ‘value formalism’ – a kind of Hegelian synthesis of, say,  Mautner’s formalism to values analysis of the Israeli Supreme Court – captures a mood noticeable in other jurisdictions. Hailbronner swims confidently in constitutional (and political) theory, and is both contextual and comparative. The book is Hegelian in another sense – formally beautiful in the construct it sets up and, yes, idealistic in its values. It is German ‘legal science’ in the best sense of the word, which also helps explain the worldwide impact that the German Constitutional Court and its jurisprudence have had, an impact greater than any other such court in continental Europe. That might be its weakness too: the construct a bit too tidy for my taste, the values a bit too much of a legal Heile Welt – but such does not detract from a formidable achievement.

Vittoria Barsotti, Paolo Carozza, Marta Cartabia and Andrea Simoncini,  Italian Constitutional Justice in Global Context (Oxford University Press, 2015)

This is a very different book – a combination in the best sense of a law book and a book about the law – learned and erudite in its descriptive parts, insightful in its analytical part. It is important because so many out there will simply be unaware of Italian constitutionalism, its history, institutions and not least its jurisprudence. I might say, tongue in cheek, that if you read it coupled with Sabino Cassese’s Diary which I recommend below, you will not need to read much more.

Sabino Cassese, Dentro La Corte. Diario di un giudice costituzionale (Il Mulino, 2015)

It doesn’t have the novelistic momentum of The Brethren, but in its authenticity, refined and acute insight into both cases and the functioning of the Court, and in its unflinching exposure of the inner workings of the Court this book has, to my knowledge, no parallel. Cassese served as a judge on the Constitutional Court of Italy for the statutory nine years from 2005 through 2014. He kept a diary which has now been published in book form. It keeps the diary format, measured in tone, factual and yet it keeps your interest. At times you wonder what his brethren would think of all of this; for instance, his biting comment, including a letter sent to his colleagues, on the peculiar praxis of presidential elections within the Court. The diary is interspersed with pithy observations not only on the immediate agenda before him but on just about every issue one discusses as regards this function and every question that one would want to ask a judge of a Supreme or Constitutional court. I would be surprised if it were not translated into other languages, though it would then need some additional material to contextualize the cases and the politics for non-Italians.

Moshe Hirsch, Invitation to the Sociology of International Law (Oxford University Press, 2015)

Perhaps the word ‘the’ in the title promises a tad too much to the readers of this truly valuable book. More accurate would be ‘Major Themes in International Law – A Sociological Approach’. With this caveat the book delivers – whether you are interested in trade agreements, compliance pull, investment, or any of the other themes picked up  (a particularly interesting chapter on collective memory) you will learn, become wiser in relation to each. What more can one ask?

Jürgen Kurtz, The WTO and International Investment Law: Converging Systems  (Cambridge University Press, 2016)

It used to be that the only connection between the WTO and investment law was that often times the same persons taught and occasionally practised both. In fact it was common, and it is still the case, to point out the huge differences between the two systems, in telos, ethos, machinery, dispute settlement, and much more. Chapter 11 of the NAFTA underscored this approach. It was drafted, for the most part, separately and feels like a stepbrother  – more advanced in offering relief to individual (rich) plaintiffs and retarded, scandalously so in some ways, in its disregard for the kind of countervailing values in the trade part as  represented by Article XX of the GATT. The NAFTA seemed to indicate that either you had a trade dispute or you had an investment dispute.

It is surprising how long it took for practitioners to see the temptation, for precisely the reasons mentioned above, of framing trade disputes as investment disputes. Suddenly the boundaries became blurred and now we have disputes arising from the same set of facts winding their way through the parallel systems.

Kurtz is not the first to explore the connections, Ari Afilalo, Tomer Broude and many others are   generously acknowledged in the text and the rich bibliography. But this to my knowledge is the first systematic, comprehensive treatment – remarkable for the richness of its approach, covering both black letter law and doctrine as well as the conceptual and historical context of the converging, overlapping and still diverging systems – which makes for a book valuable even to those outside the immediate fields treated.

Dorte Sindbjerg Martinsen, An Ever More Powerful Court? The Political Constraints of Legal Integration in the European Union (Oxford University Press, 2015)

Another book on the European Court of Justice? Another exploration of the interaction between law and politics, the Court and the political Institutions in the European Union? Yes, and a remarkable book at that. The great strength of this book is its empirical dimension, its subject matter specificity, and its institutional specificity in examining the relationship between the jurisprudence of the Court and the political branches of the Union. Make no mistake, the research is firmly situated in a conceptual and theoretical foundation, but the main achievement is in the differentiated results of the empirical exploration, which lead to a final nuanced and sophisticated new understanding of the relationship.

W.G. Sebald, On the Natural History of Destruction (Modern Library, 1999)

In describing Sebald’s novels and poetry the words  ‘mesmerizing’ and  ‘sublime’ are often used, and rightly so. They are also quite unique in form and structure in a way that few other authors are. Vertigo, Austerlitz, The Rings of Saturn, The Emigrants, to mention the most famous, are at once so personal and yet so universal and timeless. Their mood is melancholic but in the way late autumn is. The kind of book you read slowly, hoping it will never end.  You can go back to them again and again.  For many years I resisted reading his book-length essay, On the Natural History of Destruction, which describes the terrible destruction of German cities by Allied bombing. It does more, it reflects on the silence, especially among Germans, regarding this dreadful toll. I did not want the image of an author I practically revere tarred in even the slightest way by any hint of revisionism. Of course, that reluctance on my part was a manifestation of the very phenomenon –  pathology –  which Sebald set out to explore. And of course I should not have hesitated at all for the book is compelling and Sebald’s transcendent humanity and integrity, as well as his most refined plumbing of the human condition, are unequalled here too.

Pio Baroja, El Arbol de la Ciencia (first published 1911)

The novel tells the story of Andrés Hurtado, taking us through his years of studying medicine in Madrid and his subsequent practice. It is Baroja’s most famous book and is still in print. It is contemplative, philosophical (in good measure) and the character study, the study of family, and the study of Spanish society at the turn of the last century are woven into a story that draws you in. The reason I include it here is because large parts of it are situated in the university and the profession which  the protagonist loathes.  What is striking is how little has changed, especially in the world of European continental universities. 1900? So much of it could be 2000, by which I mean in the sociality of these institutions. Still, some things have changed. The occasional, matter of fact, unself-conscious anti-Semitic comment is a tell-tale sign of the time it was published.

Patti Smith, M Train (Alfred A. Knopf, 2015)

You do not have to be a particular fan of Patti Smith as a singer  (I am not) to derive enormous satisfaction from this autobiographical  book. But what you do have to do is to read first her wonderful 2010 Just Kids which describes her down and out early years with Robert Mapplethorpe in the Village, when truly there were days when tomorrow’s lunch was not certain.  M Train brings us up to date: rich and famous, with houses here and there, globe-trotting and jet setting, and all that. And yet the charm and sincerity are still all there, a beautiful effortless style, and above all a sense of loneliness and lingering sadness, a mourning that apparently has never deserted her following the early death of her husband, Sonic Smith. If you pick up Just Kids you will not put it down. And having done that you will feel both compelled and rewarded to read M Train.

Miguel de Unamuno, San Manuel Bueno, mártir (first published 1930)

Unamuno (1864-1936) was a polymath – philosopher, essayist, classical scholar. Appointed at the age of 36 as Rector of the University of Salamanca, he was a major intellectual figure in his time. Google him. But you can do better: read his short(ish) novella – San Manuel Bueno, mártir. Superficially the story of a clergyman in a small Spanish village, this is in fact a compelling narrative of the simultaneous growth and demise of faith – delicate and sympathetic to his protagonists, extraordinary in its human sensitivity and sensibility and extremely moving without being sentimental or lachrymose – though it is hard to imagine anyone who would not have tears in their eyes when reaching the final pages.