★★★★★ 5
Much Better than its Title.
Format: Hardcover
The author, Professor of Comparative and Foreign Law at the Yale Law School, tells us in the Acknowledgments that Princeton U. Press received from some of its referees "suitably bilious responses", validating his decision to bypass commercial publishers. Still, James Q. Whitman assures us time and again that he has nothing nefarious in mind, that Hitler's extermination ideology was not made in the USA, as the title may suggest. Instead, he brings to light the keen scholarly interest nationalist and Nazi German jurists took in contemporary American race legislation and Jim Crow practices. By separating the racist dimension of the "American Legal Realism" of the 1930s from its larger liberal context, Whitman arrives at the true nexus with its German counterpart. The " 'realists' of both countries shared the same eagerness to smash the obstacles that 'formalistic' legal science put in the way of 'life' and politics - and 'life' in both New Deal America and Nazi Germany did not include only economic programs (...). 'Life' also involved racism." (p. 156) The author's familiarity with both, the German and American legal landscapes of the 1930s and 40s and his painstakingly sober analysis, assure this reader that the book is exactly NOT "spellbinding and haunting", as one dust-cover reviewer sees it.
The topic could be embedded in the larger history of the American eugenics movement, so carefully illuminated by Christine Rosen (Preaching Eugenics (Oxford, 2004) who cites this opinion of the great Oliver Wendell Holmes, abbreviated in our book: "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough." (p.150)
As contemporaries of the Trump era, we may want to stop and reflect on Whitman's somber conclusion "(...) To have a common-law system like that of America is to have a system in which the traditions of the law do indeed have litte power to ride herd on the demands of the politicians, and when the politics is bad, the law can be very bad indeed." (p.159) Professor Whitman summarizes his interpretation of recent literature that support his thesis as follows: "All of these works paint a darker picture of early twentieth-century American intellectual and political life than we might wish. So does this book." Makes it a timely one, doesn't it ?
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Reviewed in the United States on March 10, 2017
