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.