LEGALITY AND DEMOCRACY

Vol. 17 No. 2 (February, 2007) pp.118-121

LEGALITY AND DEMOCRACY: CONTESTED AFFINITIES, by Stuart A. Scheingold (ed). London, UK and Burlington, VT: Ashgate Publishing, 2006. 716pp. Cloth $325.00/£165.00. ISBN: 075462580X.

Reviewed by Mark Kessler, Department of Politics, Bates College. Email: mkessler [at] bates.edu.

In this volume, a contribution to Ashgate’s INTERNATIONAL LIBRARY OF ESSAYS IN LAW AND SOCIETY, Stuart Scheingold assembles and creatively interprets a diverse and interdisciplinary group of theoretical essays and empirical studies that address in various ways the relationship between law, courts, rights and democracy. The volume is comprised of eighteen previously published articles plus a new introduction by Scheingold. The previously published articles, written by legal philosophers, law professors, political scientists, and sociologists, are drawn from an impressive range of law reviews, edited collections, and sociolegal journals. They include seminal works as well as selections that are perhaps less well known.

Scheingold’s introduction is written as an intellectual history of research and writing in a broad area of legal studies that examines the “contested affinities,” as the subtitle of this volume refers to it, of “legality” and “democracy.” The introduction provides a provocative reading of the diverse scholarly works comprising the volume. Although key concepts employed frequently throughout the introductory essay, such as “legality,” “legal accountability,” and “rights,” on one hand, and “electoral accountability” and “democracy,” on the other, might have been defined more precisely and distinguished from one another more thoroughly and clearly, Scheingold’s essay intelligently frames the articles that follow in the context of their relationship to premises in “classical political and legal theory,” theory which serves to constitute liberal forms of democracy. From this view, “legality,” “legal accountability,” and “rights” provide protection against the potentially egalitarian outcomes produced by democratic participation and majority rule. In addition, this view is characterized by a conceptual separation of law and politics.

Socio-legal scholarship, in Scheingold’s interpretation, reacted to this set of premises, by challenging the classical view that law and politics are distinct and by calling for and studying cases where law and rights have been clearly politicized. According to Scheingold, this type of sociolegal research is closely associated with a conception of rights serving egalitarian objectives, and it supports and encourages democratic practices that are more in the form of social democracy than liberal democracy. A second wave of sociolegal research criticizes these premises and opposes the politicization of law and rights on a variety of grounds. A third body of research rescues legal politicization as an effective and democratic set of practices. Thus, Scheingold interprets the works included in this volume in terms of their [*119] sympathy toward either liberal or social forms of democracy and the extent to which they advocate or critique an explicit politics of rights.

The volume is divided into six sections. The first section, “Rights, Legality and Democracy,” includes one selection, an entry on rights written by Michael McCann and Scheingold for the INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL AND BEHAVIORAL SCIENCES. Along with the introduction this entry assists in framing the articles that follow. Among other things, this essay shows how one formulation of rights, a negative form associated with classical versions of liberal democracy, suggests that rights are legitimately employed primarily to protect individuals from state infringements of such things as liberty, due process, and privacy. A second formulation of rights, associated with social democracy and embraced by some socio-legal research, suggests that rights may be employed positively by the state itself to promote economic and social equality in such areas as education, income, health care, and housing. In this formulation of rights, the classical separation of law and politics is explicitly opposed as rights are intentionally politicized and put to work to further redistributive projects.

To illustrate the view of classical versions of liberal democracy and some of the central questions debated among legal scholars within the classical canon, the next section “Classical Legality: Keeping Law Safe from Politics,” includes three articles that center on discussions between and among legal positivists and proponents of neo-natural law. A selection written by James C. Ketchen rehearses the debates between the legal positivist H.L.A. Hart and Lon Fuller, a proponent of neo-natural law. Lon Fuller’s seminal article “The Forms and Limits of Adjudication,” along with an article by Philip Selznick, “Sociology and Natural Law,” complete this section. Scheingold includes these articles in an effort to show the link between important strands of legal philosophy and “thin versions” of liberal democracy and to suggest that these theoretical formulations are not associated with egalitarian policy outcomes.

A third section, “Reconsidering the Classical Canon: Coping with Inequality,” reproduces sociolegal scholarship that challenged the premises of classical political and legal theories of liberal democracy. The seminal work of Marc Galanter on why the “haves” as “repeat players” come out ahead, and articles by Edgar and Jean Cahn on the legal services program of the War on Poverty, Michael McCann on “public interest liberalism,” and Scheingold on the politics of rights in the area of school desegregation illustrate how critical scholars exposed inequitable aspects of liberal democracy and moved toward a politicization of law and rights that could potentially produce redistributive outcomes more in line with versions of social democracy.

The section which follows, “The Case against ‘Adversarial Legalism’: Reaffirming the Classical Canon,” includes selections that criticize the politicization of rights and law along several dimensions. Alexander Bickel’s classic writing on “the passive virtues” [*120] places the criticism in the context of the role of courts in a democratic society and the countermajoritarian properties inherent in the exercise of judicial review. A selection by Donald Horowitz raises questions about the capacity of courts and judges to play a useful and effective role as policymakers. And, finally, Robert Kagan’s important critique of “adversarial legalism,” a trend in the United States toward legalistic modes of policy formulation and implementation that rely heavily on lawyers, courts, and judges, suggests that these practices produce distorted and misguided public policies and introduce severe tensions with democratic values and practices.

These criticisms of the politicization of rights and the intentional use of courts for purposes of egalitarian policy change are contrasted with research findings and arguments in articles reproduced in the next section, “In Defense of Politicization: ‘Adversarial Legalism’ Reconsidered.” Mark Graber’s article on “the passive-aggressive virtues” illustrates how judicial policymaking has a long history in the United States, beginning with major decisions of the Marshall Court. Abram Chayes writes about the legitimate role of the judge in public law litigation. In contrast to Horowitz, Chayes views the judge as quite capable of making coherent and effective public policy. Malcolm Feeley and Van Swearington show how lawyers, litigation, and courts produced prison reforms that were later validated by legislatures. Michael Paris and Douglas Reed, in separate empirical examinations, demonstrate how school finance litigation produced important redistributive results and how such results were actively supported in some cases by state legislative majorities. Thus, these works suggest that, at least in some areas, courts do indeed show the capacity to produce desired policy outcomes and that their decisions are sometimes arrived at with at least the tacit support of a majority of elected representatives. In Scheingold’s terms, this research “demonstrates that courts can intervene in the policy process in ways that are neither counterproductive nor countermajoritarian” (p.xxi).

A final section, “Legality, Equality and Democracy,” reproduces one article by David Nelken, a critical review of Robert Kagan’s arguments regarding “adversarial legalism.” Scheingold includes it because it broadens the debate by encouraging its readers to think about research on law’s relationship to democracy outside of the United States. There is, of course, a growing scholarly interest and literature on the comparative study of a closely related topic, the judicialization of politics, both in democratic and authoritarian societies (e.g., Tate and Vallinder 1995; Epp 1998; Shapiro and Sweet 2002; Moustafa 2003; Hirschl 2004; Ginsburg 2006). But this essay and this volume may well serve to stimulate more work along these lines.

In general, this volume brings together diverse scholarship from a variety of disciplines to raise fundamental questions for scholars interested in the role of law in democratic societies. Scheingold’s choice of articles to include in this volume, his imaginative interpretive essay, and the organization [*121] of the works included in the volume, demonstrate how sociolegal empirical scholarship has and should address broad issues derived from political and legal theory. As important, connecting different conceptions of rights to varying forms of democracy, liberal and social, helps to identify some of the ideological implications of claims made in sociolegal research on legal rights, their mobilization in courts, and their interpretation by judges.

This volume makes a useful contribution to studies of law, rights, and democratic practices. Together with other volumes in this series it helps to make sense of some important and diverse works on law and society published over the past fifty years or so and, as significant, suggests new scholarly directions. Ashgate and Austin Sarat, the series’ editor, deserve applause for making the volumes in this series available. If the publisher could find a way to make the volumes more affordable a standing ovation would be in order.

REFERENCES:

Epp, Charles R. 1998. THE RIGHTS REVOLUTION. Chicago: University of Chicago Press.

Ginsburg, Tom. 2006. JUDICIAL REVIEW IN NEW DEMOCRACIES. NY: Cambridge University Press.

Hirschl, Ran. 2004. TOWARD JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge: Harvard University Press.

Moustafa, Tamir. 2003. “Law versus the State: The Judicialization of Politics in Egypt. 28 LAW AND SOCIAL INQUIRY 883-930.

Shapiro, Martin, and Alec Stone Sweet. 2002. ON LAW, POLITICS AND JUDICIALIZATION. NY: Oxford University Press.

Tate, C. Neal, and Torbjorn Vallinder (eds). 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. NY: New York University Press.

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