Law of Democratic Governance

Vol. 15 No.9 (September 2005), pp.817-820

LAW OF DEMOCRATIC GOVERNANCE (2 vols.), by Gregory Tardi. Toronto: Carswell, 2004. Vol. 1: PRINCIPLES, Softcover. 200pp. US$52.00/CDN$90.00. ISBN 0-459-24149-4. Vol. 2: JURISPRUDENCE, Softcover. 1221pp. US$68.00/CDN$120.00. ISBN 0-459-24150-8.

Reviewed by Yu Xingzhong, Department of Government and Public Administration, The Chinese University of Hong Kong. Email: xzyu [at] cuhk.edu.hk

This two-volume work, by Gregory Tardi, is an interdisciplinary and comparative study of authoritative decisions in Canada and other jurisdictions relating to issues of democratic governance. Tardi discusses the role of law in the democratic conduct of public affairs. The first volume, PRINCIPLES, discusses general principles derived from an examination of court judgments, rulings by the Speaker of the House of Commons, as well as other binding decisions dealing with matters of Governing. It also deals with the relationships among law, public administration and politics, focusing on the role of law in administering public affairs. The second volume, JURISPRUDENCE, contains case studies illustrating the principles developed in the first volume. The cases are mostly Canadian and some are from other democratic jurisdictions, such as Great Britain, France, the European Union and the United States. This is an effort not only aimed at exploring a new branch of law, but also employing a new style of writing. It is like a casebook with much fuller explanations.

The book covers an extensive array of issues including definition of the basic concepts of political law, relation of, and relative influence among, law, policy and politics, legal elements of democracy, sovereignty, legitimacy and governance, elections, parties, campaigning and political promises, choice of the appropriate instrument for governance, integrity of the legislative system, legality in government management, litigation of political law issues, and legal accountability to democracy.

According to Tardi, the basic concepts of political law include the most fundamental notions in democratic governance – law, policy and politics. Despite the innate ambiguities of these terms, Tardi employs them in their broadest but countable sense. Thus, law includes the supreme law, the constitution, the statutes, regulations and other statutory instruments. It also includes the decisions of courts, tribunals and other similar bodies. Policy designates a written instrument of public administration that is less than legal in nature and developed by the non-political or non-legal institutions of the state and intended to be binding on those institutions and officials. Policy encompasses a plethora of directives, guidelines, manuals and other such texts. Politics, another illusive term, has been given enumerable substance, including a number of political instruments of governance, such as the constitutions of political parties, party campaign platforms and manifestos, the Speech from the Throne or its equivalent in [*818] other jurisdictions, the Budget, and other such texts and pronouncements. The pith and substance of political law comprises the various interactions, linkages and mutual influences among these three families of instruments – the legal, the policy-based and the political. The study of political law examines these instruments at both the macro and micro levels, treating them as branches of the social sciences, as well as the basic types of instruments used in the conduct of government.

As Tardi made it clear elsewhere, “political law” is the interdisciplinary study dealing first with the interaction among law, public policy and administration, and politics, and second, with the influence of law on the other types of instruments of democratic governance. The approach taken in the study of political law incorporates the elements of constitutional and administrative law with public administration and political science. It goes beyond earlier treatments of “law and politics” by considering jointly all the disciplines relating to governance along a single continuum and by exploring how they interact to complement, or conflict, with each other.

An obvious question would be whether political law could justifiably be a branch of law that deserves serious and systematic study. Much of the substance that the study of political law purports to cover has been traditionally dealt with in constitutional and administrative law. If that is the case, why bother to have a separate discipline called political law to study the same substance? Although there is some substantive overlap among political, constitutional, and administrative law, some issues are pertinent primarily to political law and are difficult to be covered either by constitutional law or administrative law. For instance, organizational laws like that of political parties, campaign finance regulations, gift-giving to government officials, martial laws, election law, constituency law, legislative law, civil rights law, and so on. These laws are political by nature, but neither constitutional law nor administrative law can be a proper host for them under many regimes. Political relations are not always constitutional or administrative. In that sense, political law as a branch of law or a discipline of study is well justified. As democratic governance grows and the study of political law develops, there will surely emerge new political relations that may enrich such a discipline.

Another question, perhaps much more substantial, concerns how the venerable concept of the rule of law figures in the whole landscape of political law? As Tardi makes it clear, good governance not only involves law, but also policy and politics. Then, is there any priority among the three? Tardi’s answer is that the analysis of the influences on, and forces in, the conduct of public affairs means that political law is more concerned with the role of law than are traditional studies of the rule of law. The study of political law is a reflection of the increasing legalization of politics and public administration, especially in an era dominated by written constitutions. The use of political law is to demonstrate that in democracies, good governance involves respect not only for civil and political human rights, but also for its natural counterpart, the accountability of public institutions and officials. Thus, the study of political law [*819] neither devalues the rule of law nor substitutes for it.

In the field of political law, practice comes before theory. Long before a systematic theoretical exploration such as that offered by Tardi came into being, lawyers of various countries were engaged in the practice of political law, especially of laws regulating lobbying, financing of campaigns for public office, the passage of ballot measures, gifts to public officials, and almost any interaction between the private and public sectors. Political lawyers represent corporations, trade associations, initiative campaigns, candidates for public office, and officeholders before various regulatory agencies.

An historical argument can also be made in favor of the study of political law as an independent branch of legal study. In analyzing laws of mankind, Hugo Grotius classified positive laws into political, civil, and criminal law. Jean Jacques Rousseau thought that it was necessary to have political law for regulating problems of the sovereignty vis-à-vis the state. Charles de Montesquieu classified positive law into three categories: political law, civil law and international law. He held that there should be law governing the relationships between the ruler and the ruled—political law. The political law, as Tardi is eager to explore, is concerned with democratic governance, has more extensive scope, and is based on empirical study of real and authoritative cases.

There are those who believe that political law is necessarily artificial and imposed by the state and that ultimately it is incompatible with common law which grows naturally from the practice of private individuals from bottom up. Tardi is well aware of this tension and argues that the interdisciplinary focus of political law study is deliberately different from either a purely legal analysis of the relevant case law or an analysis exclusively grounded in political science or public administration. It takes both enacted instruments of governance and judicial cases seriously as the constituents of political law and merges the two into an integrative whole.

As the Honourable John M. Reid points out in his Forward, politicians, legislators, civil servants, lawyers and judges all alike would probably find this book helpful in their work relating to political law. For those interested in developing legal systems, LAW OF DEMOCRATIC GOVERNANCE presents an excellent reference. In such systems, many new social, legal and political relations are emerging, but without adequate legal regulation. Tardi’s work provides valuable reference for addressing these issues in a developing legal system.

REFERENCES:

Barry, Donald D. and Howard R. Whitcomb. 1981. THE LEGAL FOUNDATIONS OF PUBLIC ADMINISTRATION. St. Paul: West Publishing Co.

Dworkin, Ronald. 1986. LAW’S EMPIRE. Cambridge: Harvard University Press. [*820]

Dyzenhaus, David. 1999. RECRAFTING THE RULE OF LAW: THE LIMITS OF LEGAL ORDER. Oxford: Hart Publishing.

Ely, John Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge: Harvard University Press.

Finer, Samuel E. 1997. THE HISTORY OF GOVERNMENT FROM THE EARLIEST TIMES. Oxford: Oxford University Press.

Friedman, Lawrence M. 2002. AMERICAN LAW IN THE 20TH CENTURY. New Haven: Yale University Press.

Grotius, Hugo. 1814. ON THE LAW OF WAR AND PEACE. Translated by A. C. Campbell. London. Oxford Press.

Hayek, Friedrich A. 1979. LAW, LEGISLATION AND LIBERTY: VOL. III THE POLITICAL ORDER OF FREE PEOPLE. Chicago: The University of Chicago Press.

Montesquieu, Charles de. 1949. THE SPIRIT OF THE LAWS. New York: Hefner Press.

Posner, Richard A. 2003. LAW, PRAGMATISM AND DEMOCRACY. Cambridge: Harvard University Press.

Rousseau, Jean Jacques. 1997. THE SOCIAL CONTRACT AND OTHER LATER POLITICAL WRITINGS. Cambridge: Cambridge University Press.

Sunstein, Cass. 1993. THE PARTIAL CONSTITUTION. Cambridge: Harvard University Press.

Tardi, Gregory. 1992. THE LEGAL FRAMEWORK OF GOVERNMENT: A CANADIAN GUIDE. Aurora: Canada Law Book Company.

Tushnet, Mark. 2003. THE NEW CONSTITUTIONAL ORDER. Princeton and Oxford: Princeton University Press.

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