Vol. 11 No. 1 (January 2001) pp. 6-8.

JUDICIAL POWER, DEMOCRACY AND LEGAL POSITIVISM by Tom Campbell and Jeffrey Goldsworthy (Editors). Brookfield, VT: Ashgate Publishing Company, 2000. 435 pp. Cloth $129.95. IBSN: 0-7546-2961-1.

Reviewed by Albert P. Melone, Department of Political Science, Southern Illinois University Carbondale.

Scholars commonly observe that questions of constitutional and statutory interpretation often, if not usually, concern some other question. Thus, when U. S. Supreme Court justices are criticized for their activism in striking down acts of Congress, for instance, the subsequent critiques really are not about whether the justices interpreted their role properly vis-`a-vis other governmental institutions. Likewise, the question whether statutory rules should be interpreted by a plain-meaning rule and not by an investigation into the intentions of the statutory framers may be illuminated when the matter is placed in its political context. Although we should be careful to avoid unintended expressions of legal nihilism, one might extend this empirical observation to arguments submitted by legal philosophers. Arguments of legal positivists, natural law proponents, or legal realists, for example, may be viewed as elaborate post hoc arguments about decisions of courts thought unwise, unjust, or simply as bad public policy. Yet, I have no doubt that justification in all matters of argument is a necessary pre- condition for prescriptions of all sorts. Indeed, this carefully edited eighteen-chapter book contains the elements necessary to engage intellectual discourse at all levels of analysis. The essays contained in this volume are uniformly first rate and worthy of careful study. The relevance of the abstract arguments about the nature of law become crystal clear when one reads the last two essays in this book.

The judicial activism of the Australian Supreme Court during the 1980s and through the mid-1990s serves as an intellectual wake-up call for pundits and philosophers of all stripes to get to work. Without a bill of rights, the high court created judicially protected rights where there were none before, as its positivist critics argue it. Instead, the Australian justices relied on the examples from international law, courts of other constitutional systems including the United States, and on limitations stemming from Commonwealth power. Not too dissimilar from their American counterparts on the Taft, Hughes, and Warren Courts, the judges in Australia have been attacked. One writer summarized the negative view of the justices as a, "'pathetic.self-appointed [group of Kings and Queens'] a group of 'basketweavers' and even the purveyors of 'intellectual dishonesty'"(p. 413).

It is little wonder, then, that a group of Australian legal scholars and philosophers became interested in the reconsideration of the proper role of judges in political systems. To be sure, the world wide "judicialization of politics" as Neal Tate and Vallinder Torbjorn and others have pointed out, makes the issue of the proper role of judges a matter of concern for academics everywhere

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and not simply an issue pertinent to our colleagues down under.

The essays in this volume are the product of a workshop on "Judicial Activism and Judicial Review in Australian Democracy" held at the Australian National University during July 1998. The contributors are from the United States, England, Scotland, New Zealand as well as Australia. Part I of the text deals with the nature of law both from a descriptive and prescriptive perspective. Part II of the book contains essays on the role of legislatures and courts in the law making function of modern societies. The organizing theme of this book is an explanation, discussion, and debate centering on the book by Tom Campbell, THE LEGAL THEORY OF ETHICAL POSITIVISM (1996). His arguments found in the 1996 volume are further refined in the first essay of this workshop inspired volume published in 2000. I am impressed by the intellectual honesty manifest in each essay. Each writer carefully presents the views of Campbell and others with little if any distortion, and each of the contributors is modest in their own claims. Evidenced by the quality of this volume, the organizing conference must have been an intellectual feast enjoyed by all participants, one that readers of this volume happily are permitted to share.

Campbell argues forcefully for the view that judges should behave impartially through the subjugation of their own moral beliefs to the will of the people as revealed through legislative enactment. As a corollary, Campbell argues that legislation is a superior source of law to the creative acts of judges in discerning the common law. Although plainly derivative, his version of positivism is not based on the notion of a Hobbesian sovereign as the source of law. Rather, Campbell argues that positivism in the postmodern world can be regarded as a way to enhance democracy and is not in conflict with democratic values. However, the realist critique of the familiar and thoroughly worn if not discredited positivist idea that judges only find the law, they do not make it, remains a valid one. Positivists typically confuse a normative prescription for a factual description. To his credit, Campbell understands clearly the distinction. He proposes that judges must behave in ways that will better approximate the union between how they ought to behave with how they behave in fact. The clear articulation of rules by legislative authorities that are followed carefully by judges will create, he argues, greater political legitimacy for the system as a whole.

Although not their explicit goal, the authors of the eight essays that follow Campbell's opening explanation of his viewpoint is a fine primer on contemporary views about the nature of law. Readers are treated to extended discussions of the works of Hart, Dworkin, Habermas, and many classical thinkers, and to schools of jurisprudence including positivism, natural law, realism, critical legal studies and feminist theory. Several essays are written specifically from a critical legal studies and feminist viewpoint. The authors emphasize how relativism from an epistemological perspective questions seriously the positivist assumption about the neutrality of the framework of legal reasoning. I found with some surprise and much appreciation that each of these example-rich essays treats Campbell's perspective fairly and with an open mind. Campbell freely admits that the judges' framing of issues and the answers to them are culturally bounded, and that judges must be sensitive to this social fact which is another good reason to prefer legislative rules to judge made law. One might legitimately query whether Tom Campbell

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really prefers the continental civil code system with its deeply rooted notion of legislative supremacy to the judge made law system of the common law. He is not explicit about it, at least in this volume, but I cannot help believe that his argument may be extended that far.

This might be especially true if constitutional questions are clearly reserved to a constitutional court created explicitly for the purpose of interpreting the most basic law and protecting clearly articulated human rights.

Campbell's prescription that legal rules ought to be precise is cogently questioned in one essay that points to the inevitability of administrative discretion in the modern world. Legislatures grant broad latitude to administrative agencies in the exercise of their rule-making capacities because the complexity of modern life makes it difficult if not impossible for elected representatives to legislate for each situation that may arise. Campbell believes legislatures should grant little discretion to administrative agencies. Regrettably, this in-principle prescription does not help when in fact agencies abuse their discretion and ought to be held accountable. This task typically falls to the courts, but when they rein in agencies they run the risk of being accused of judicial activism.

The role of lawyer ethics in legal theory is a subject of growing concern. It is a matter that Campbell raises himself but is also brilliantly discussed by Tim Dare in a fine essay appearing in this volume. Dare points out that in pluralist societies, where there exist profoundly differing views on how people should lead their lives and what values ought to be enforced, the law should operate in a neutral manner with a goal of ensuring that procedural rules are followed. This permits everyone a fair opportunity to equal treatment under the law. In short, legal ethics should ensure that lawyers afford representation to all and that each client is entitled to zealous but not hyper-zealous representation. Thus, we find in this essay another way of arguing that democracy is about process and not necessarily ends.

The editors of this volume have produced a thoughtful index that will serve scholars well in their attempts to understand modern legal philosophies, arguments, and competing viewpoints. The only regrettable feature of this book is its retail price. For this reason it will be difficult to assign this book for seminar reading. Yet, it is a book that belongs on the shelves of university libraries and on the desks of serious scholars interested in modern legal philosophy and comparative judicial processes. This book deserves a careful read.

REFERENCE:

Campbell, Tom. 1996. The Legal Theory of Ethical Positivism. Brookfield, VT: Dartmouth Publishing. Co.