Vol. 13 No. 8 (August 2003)

LAW AND DEMOCRACY by Tom Campbell and Adrienne Stone (editors).  The International Library of Essays in Law and Legal Theory, Second Series.  Tom D. Campbell, series editor.  Brookfield, VT: Ashgate Publishing Company, 2003.  546 pp. Cloth $195.00. ISBN 0-75462-214-2.

Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff@jsums.edu

As the products of the LAW & POLITICS BOOK REVIEW amply demonstrate, for the last fifteen years there has been an explosive interest in the intersections between a majoritarian democratic process and a constitutional legal system.  One process encourages innovation, participation, and public discourse. The second system values continuity, clearly articulated shared public values, and maintained procedures. Inevitably there will be conflict.  With the acceptance of democracy worldwide, the intersections of this conflict with indigenous political cultures create new permutations in both the discourse and the process.  As the years have passed, a new canon has slowly formed. The volumes in the International Library of Essays in Law and Legal Theory are created with a very clear, defining mission. Articles are selected because of their great theoretical importance to the development of legal theory; they are all previously published, are almost exclusively derived from law journal articles, and are reproduced with the font, layout, and pagination of the original publication.  As is usually the case, these strictures are the value of this particular volume, as well as the source for its primary limitations, especially for political scientists.

Campbell and Stone have selected essays that in their estimation provide insight “into an engaging and important debate that encompasses the most fundamental issues within both legal and political theory” (p.xii).  The foundation of this text is the belief that “the coming together of law and democracy is facilitated in theory by the ‘interpretative’ turn in legal philosophy that has seen a move away from attempting to understand the distinctive nature of law and legal systems to an emphasis on the understanding of the adjudicative activities of judiciaries in a way that has blurred the distinction between law-making and law application. Principally under the institutional impact of American constitutional law and its imitators, much legal theory has become a matter of justifying legal modes that seek to exercise powers of governance over an increasingly wide corpus of fundamental rights and of offering guidance as to how these powers ought to be exercised” (p.xi). This compilation documents the resulting discussion.

Campbell and Stone have amassed an impressive collection of authors who represent aspects of these debates:  Frank Michelman, Ronald Dworkin, Robin West, Cass Sunstein, Justice Antonin Scalia, Kathryn Abrams, Jürgen Habermas, and Jeremy Waldron, to name a few.  The most impressive aspect of this volume is found in the inclusion of such ground-breaking essays as Samuel Freeman’s “Constitutional Democracy and the Legitimacy of Judicial Review,” accompanied by “Freeman’s Defense of Judicial Review” written by Jeremy Waldron.  These pairings allow the reader to follow the development of the dialogue in an easily assessable manner.  Unfortunately, the lack of a substantive introduction by the editors weakens the utility of this resource considerably.  This is more a collection of seminal essays than a contribution to the discussion surrounding the conflicts and problems inherent in the contemporary tension between law and democracy.

The framing of the volume is intriguing; the editors decided to see how classic questions of political philosophy, such as liberalism, republicanism, and the nature of democracy, are fairing in our current jurisprudence-oriented culture.  While it is impossible for a book review to qualitatively discuss the nineteen separate essays in this volume, its structure is worthy of evaluation. The volume begins with a discussion of what the editors call “General” questions. These essays by Mortimer Sellers, K.D. Ewing, Michelman, and Waldron hold in common queries regarding the meaning of western democracy, the tension between liberalism and republicanism, the lack of reconciliation between procedural and substantive rights, and the role that a written constitution can play in a democracy. While these are hardly new questions, the authors attempt to respond to other scholars’ work on these issues—many of these works (often foundational to the discussion of the question of law and western constitutional democracy) are not included in this volume.

The next section of the book, entitled “Liberal Legalism,” specifically looks at the debate between liberals and republicans. Dworkin and West disagree on the role that courts can reasonably play in assuring the continuation of key liberal values in a democracy.  But West’s essay is the only one in the volume that explicitly examines the role that non-western democratic theory can play in elucidating the problems and limitations in western democratic thought.  Her application of Czechoslovak President Vaclav Havel’s liberal philosophy to American constitutional law is intriguing.  Moving to the section on “Republicanism,” Sunstein, Abrams, and Philip Pettit are grouped together with their shared questions regarding the protection of representative rights in a society with common democratic values.  Sunstein is, as usual, very clear in his analysis of the relative strengths and weaknesses of the republican tradition; the pairing of Abrams’ analysis of Sunstein is useful.  It is less clear how Pettit’s article connects; it seems to be included more to provide a non-U.S. perspective on this issue, than to continue the previous discussion.

The fourth section of the book, “Deliberative Democracy,” is centered on the recent work of Habermas in BETWEEN FACTS AND NORMS (1996) in which traditional liberal understanding of democracy is challenged in favor of a “proceduralist understanding of law” (p.280).  In this understanding, political communication is essential for the citizens to “articulate their wants and needs, to give voice to their violated interests, and, above all, to clarify and settle contested standards and criteria….” (p.280). The accompanying essays by Michel Rosenfeld and Tom Campbell respond to the arguments of Habermas and the demands of a proceduralist democracy.

The last two sections of the collection move into the more pragmatic questions surrounding democratic governance—the power of the judiciary.  This section seems to be a bit disjointed from the first half of the book, because it explores issues of judicial decision-making and the ubiquitous question of the legitimacy of judicial review in a majoritarian democracy. The section entitled “Democratic Formalism” begins with Scalia’s 1989 article “The Rule of Law as a Law of Rules” in which Scalia attempts to identify formal rules for decision making. Sunstein’s review of Scalia’s 1997 A MATTER OF INTERPRETATION follows, as does an essay by Jeffrey Goldsworthy who asks what role originalism can play in interpreting the Australian constitution. This essay is especially valuable because it models the possibility of comparative legal studies.  The question he raises through the legal experiences of other countries, in the analysis of his own political context, is a model of the kind of explication needed in American judicial thought.  The final section of the book, “Judicial Review” features two debates:  Freeman and Waldron on the legitimacy of judicial review in the U.S. Constitution and John D. Whyte and Peter H. Russell on the constitutional justification for the Canadian notwithstanding clause (section 33 of the Charter provides for a legislative override).

As a political scientist, it is a bit disconcerting to observe how terms with explicit political and philosophical meanings, such as “liberalism” and “republicanism,” have been appropriated by legal scholars to advance new arguments about the rule of law. As Kathryn Abrams in her essay, “Law’s Republicanism,” notes, “we can rarely resist the urge to prowl the terrain of another discipline and haul its juiciest morsels back to our lair” (p.235). While all disciplines are most likely guilty of this charge, it takes a while to understand how these terms are being understood in the jargon of a different intellectual community.  Mortimer Sellers and other authors in the volume do note the ahistorical misuses of these terms (p.4), and once a political scientist accepts this appropriation, the larger questions raised by these selections are quite significant.  But it is this very significance that makes the opening essay so disappointing.

As should be obvious from this review, I had high hopes for the integrative essay.  It seems to me that the purpose of such a collection is to take the literature, some well-known and others more obscure, and explicate it in such a manner as to further the debate.  The introduction of this volume does not do this. It primarily lists books that are available to help the reader understand the nature of the debate and notes the relationship of the articles to each another.  The intellectual ground covered in this volume is vast and the editorial essay does not clearly note the reasoning of the editors in covering such a wide field.  Finally, the title of the book is misleading. These readings solely illuminate western constitutional democracy—the emphasis is clearly American with British, Canadian, German, and Australian essays thrown in for leavening.  While this is clearly acceptable, because in obvious ways these constitutional systems have the most in common, there is no articulation of the limited scope of the volume. The same void is true for any scholarship that has been critical of these debates from the margins—feminist theory, critical race theory, queer theory—it has not been mentioned. Again, all volumes have a defining focus, but an articulation by the editors as to the themes that guided their choices would have been valuable.

As a collection of seminal essays in the realm of western constitutional philosophy, this book is useful.  Its contribution to the lively and fervent debate surrounding these inherent tensions between liberty and equality, representation and fairness, majoritarianism and constitutional governance is less obvious. I wanted more than a collection of classics to grace my shelves; however, what I wanted may have been beyond the scope of this series.

REFERENCES:  

Habermas, Jürgen.  1996.  BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY. Cambridge, MA: MIT Press.

Scalia, Antonin.  1997.  A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW. Princeton, N.J., Princeton University Press.

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Copyright 2003 by the author, Michelle D. Deardorff.