Vol. 16 No.1 (January 2006), pp.23-25
THE RULE OF LAW AND THE SEPARATION OF POWERS, by Richard Bellamy (ed). Aldershot, Hampshire: Ashgate Publishing, 2005. 596pp. Hardback. $250.00/£130.00. ISBN: 0754624633.
Reviewed by David Wallace and Mark Welton, Department of Law, United States Military Academy, West Point, New York. Email: David.Wallace [at] usma.edu, and mark-welton [at] usma.edu
The number and variety of articles and books on the rule of law has increased substantially in recent years. It is evident from these works that the rule of law remains a multifaceted and contested concept that resists easy definition or description. The nature of rules, the problem of how to restrain judicial law-making while preserving an independent judiciary, the methods of limiting legislative and executive power, and more generally the relationship between the rule of law, constitutionalism, and democracy are all themes that continue to occupy legal scholars, political scientists, and others.
Richard Bellamy’s book, THE RULE OF LAW AND THE SEPARATION OF POWERS, is a welcome addition to the literature on this subject. Really three books in one, it is a substantial collection of seventeen articles by leading scholars that explores three important aspects of the rule of law: defining the rule of law, the proper scope of and limits on judicial decision-making in a democracy, and the separation of powers (including federalism) as a means of limiting governmental power. These articles, reproduced and paginated as they originally appeared in journals, are preceded by a lengthy introduction in which Bellamy not only summarizes the contributions of the authors contained in the book, but offers his own valuable insights into the rule of law.
In the introduction, Bellamy deftly outlines the primary arguments found in the essays and, in his own words, proposes a political view of the rule of law as arising from a balance of power between and within the legislative and judicial branches. Bellamy subdivides his introduction and the essays that follow into discrete sections. His methodology is logical and, therefore, easy to follow. In the first section of his introduction, Bellamy explores the nature of law and its relationship to political power. He persuasively contends that the notion of the rule of law must be distinguished from the rule of good law and rule by law. More specifically, he argues that the rule of law cannot simply be associated with a view of the good or just that lies outside the realm of politics or political or legal authority. Bellamy believes that rule by law is itself insufficient to limit the arbitrary abuse of power.
To quote Bellamy,
[B]oth court-centered and legislative-centered approaches must confront what I dub the Hobbesian challenge: namely, how can they avoid empowering either courts or legislatures as a sovereign power, above to act in an arbitrary way? The former seek to do so by offering what might be called a ‘third theory of [*24] law,’ lying midway between natural law and legal positivism. They have to show how the very nature of law implies certain norms that can guide in all cases, directing judicial discretion so that law can indeed rule and legal forms bind those governments committed to employing them. (p.xi)
Bellamy then provides the framework for the essays that he collected for Part I, “Defining the Rule of Law.” Joseph Raz’s now-classic essay, “The Rule of Law and its Virtue,” provides a foundation for a positivist, “narrow” approach to the rule of law that is complemented with essays by Matthew Kramer, Margaret Radin, and Paul Craig, emphasizing the importance of the morality of law through developing a more robust notion of legality. Jeremy Waldron’s essay, “Is the Rule of Law an Essentially Contested Concept (in Florida),” which places matters within the context of politics, rounds out this section of the book.
Bellamy’s introduction then prepares the reader for the essays in Part II, “The Rule of Law and Judicial Discretion,” consisting of essays by F.A. Hayek, Ronald Dworkin, J.L. Mackie, Cass Sunstein, and Marin Shapiro. As Bellamy notes, at least at a superficial level, Dworkin’s and Hayek’s views could not be more different. Although both theorists see the rule of law as the primary safeguard for individual freedoms in society, Hayek notes that the rule of law defends the market against retributive measures. By contrast, Dworkin believes the equitable distribution of resources is a condition of, rather than a restraint on liberty (p.xx). Of course, most would agree that Hayek is much more inclined toward a formal and rule-based model, whereas Dworkin’s approach is rooted in the concept of “principle.”
According to Bellamy, both Dworkin and Hayek distinguish law proper from ordinary legislation, which they view as tainted through being particularistic and goal-oriented. More specifically, Dworkin and Hayek view law as prioritizing the individual and ordinary legislation as prioritizing the collective. That being said, the primary function of the rule of law is to ensure that the one is never sacrificed to the other. Bellamy also notes that Dworkin and Hayek are in agreement on the notion that members of the judiciary can use law because it never runs out.
In the final portion of the introduction, Bellamy turns to a discussion of the separation of powers, parliamentarism and federalism, which are reflected in the articles in Parts III and IV of the book. The editor’s own article, “The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy,” sets out many of the key issues involved in this aspect of the rule of law. This is followed by articles by Eric Barendt, John Braithwaite, Geoffrey Brennan and Alan Hamlin, Robert E. Goodwin, and Bruce Ackerman. Together, these essays reinforce the significance of this “structural” aspect to an effective rule of law system and help establish the relationship between the rule of law and constitutionalism that is often overlooked or misunderstood in other works.
The book’s concluding article, Koen Lenaerts’ “Constitutionalism and the Many Faces of Federalism,” offers a particularly valuable comparative [*25] perspective on problems of federalism within the European Union and other countries (such as Canada). His analysis reminds the reader that the rule of law in all its conceptions was and remains a problem that attracts and perplexes all legal cultures. The articles in this volume, taken together, will contribute substantially to the reader’s understanding of this important idea.
© Copyright 2006 by the authors, David Wallace and Mark Welton.