by Melissa Schwartzberg. Cambridge: Cambridge University Press, 2007. 240pp. Cloth $80.00/£45.00. ISBN: 9780521866521. eBook format. $64.00. ISBN: 9780511282874.
Reviewed by Magdalena Zolkos, Department of Political Science, University of Alberta. Email: zolkoska [at] ualberta.ca.
In DEMOCRACY AND LEGAL CHANGE, Melissa Schwartzberg takes up the question of (un)democratic consequences of law entrenchment. More broadly, this book is positioned within the terrain of normative complexities involved in the relationship of constitutionalism and democracy. This book makes an argument for the practice of flexible law and against legal entrenchment, as entrenchment is claimed to undermine such crucial democratic principles as innovativeness, legislative activity, recognition of human fallibility and deliberation and engagement in political life.
DEMOCRACY AND LEGAL CHANGE combines the methods of an in-depth historical analysis with a construction of largely a-contextual position on the close and mutually supportive relationship between democracy and flexibility and mutability of law, regardless of the cultural and historical circumstances. Schwartzberg is rather successful at linking the objectives of historical analysis, on the one hand, and of making a statement about the democratically problematic implications of legal entrenchment on the other. Nevertheless, it would have strengthened the methodological position of the book if she had justified at greater length her strategies of (selective) engagement with history for the purpose of ultimately making a general and non-contextual argument.
In the introduction, Schwartzberg situates the concept of legal entrenchment vis-à-vis other notions of legal change (statutory, interpretative, constitutional and revolutionary), and provides a helpful and informative typology of legal entrenchment. She differentiates between formal and time-unlimited entrenchment (pp.8-11), formal and time-limited entrenchment (pp.11-12), de facto entrenchment (pp.12-13) and implicit entrenchment (pp.13-16), and provides thorough explanation and exemplification of each of these types. She also outlines the foundations of her nexus of legal mutability and democracy drawing on such theorists of law as Bruce Ackerman and Jürgen Habermas. Unfortunately, the book does not include a particularly in-depth theoretical engagement with Ackerman’s WE THE PEOPLE or Habermas’ BETWEEN FACTS AND NORMS on the issue of legal (im)mutability. Likely, this would have made this book more attractive from the perspective of constitutional theory and democratic.
The subsequent chapters cover four historical cases of practicing a form of legal entrenchment: Athens in the fifth and fourth century BC; England in the seventeenth century, America in the [*801] eighteenth century and Germany after World War II. Each historical case centers on a particular lesson that can be drawn about the practice of democracy and legal (im)mutability. As regards ancient Athens, for instance, Schwartzberg emphasizes the connection between legal change and innovativeness (the willingness not only to adapt to changeability and challenges of life, but also to create or start anew). The “ideology of pragmatic innovation” (p.31, passim) is regarded in the book as one of the central characteristics of the ancient Athenian notions of democracy and civic identity, as well as an expression of a philosophy of political life as inescapably contingent and unpredictable. However, the Athenian “ability to confront the unexpected with modified rules and institutional novelty” had been also criticized for its alleged effects on the inefficiencies of governance, or instability in alliance forming. In this context, Schwartzberg makes the point that the Athenian counter-example, Sparta, derived its stability of rule and military efficiency from its conservative laws. Schwartzberg provides a detailed and fascinating account of how legal entrenchment was introduced in the fifth and fourth century Athens “primarily as a means of reassuring anxious allies” in moments of political and constitutional crisis (p.71). Consequently, the lesson that Schwartzberg intends her readers to remember from that historical analysis is that “[e]ntrenchment . . . stifles public learning about the entrenched norms themselves” because “in the absence of the capacity to reopen debate on these laws . . . a [critical] disposition will be difficult to cultivate” (pp.195, 196). While the author recognizes the possibility that “the desire to innovate and thereby to learn might entice us to change laws for the worse, rather than for the better” (p.197), she concludes that democratic life embraces uncertainty of decision and responsibility for the consequences for those decisions.
In Chapter 3, Schwartzberg moves her discussion to seventeenth century England. She emphasizes in particular the fact that early modern English legal tradition referred to the ancient constitution in a seemingly paradoxical way – i.e. as concurrently “an unalterable body of law [and as] undergoing constant and imperceptible change [through interpretation and adaptation by trained judges and secondarily through parliamentary means via statute]” (p.71). The latter point is important because it connects to the principle of “artificial reason,” which gave the primary interpretative power of the common law to trained lawyers (p.78). Schwartzberg convincingly demonstrates that the political argument about legal inflexibility meant in fact conflict about the mode, extent and agency of legal change. Hence, both the English parliament and kings James I and Charles I asserted affirmative positions of the immutability of law, and directed at each other charges of being “sinister innovators” (p.83). The main argument is that the English Civil Wars provided background for struggle between the democratizing parliament (as well as such proto-democratic movements as the Levellers), which asserted its right to deliberate and change laws, and the conservative legal forces, which aimed to hold to their adaptive and interpretative legal powers, and hence endorsed the solution of legal entrenchment. The lesson drawn from [*802] that historical example is that there exists an important connection between the constitution of law and democratic deliberation, which “rests on the claim that ultimately the people have authority to modify the constitution if their considered judgment is that the court’s interpretation of the constitution is misguided” (p.200).
In Chapter 4, Schwartzberg considers the eighteenth century American context of legal entrenchment, and the democratic opposition against it. She includes two famous cases from Article Five of the United States Constitution: the time-limited entrenchment that prohibited constitutional amendment of the law on slave trade (which expired in 1808) and the time-unlimited entrenchment that “no state, without its consent, shall be deprived of its equal suffrage in the Senate” (quoted on p.116). In what is probably the most fascinating discussion in DEMOCRACY AND LEGAL CHANGE, Schwartzberg links the democratic defense of legal change in the US constitution (namely advocacy of the inclusion of an amendment clause) to the debate on human fallibility. However, it would have been a great advantage of the book, if the very meaning of the notion of human fallibility and its relation to legal and constitutional theory were discussed in greater depth. The final historical case concerns the post-World War II German Basic Law, which includes an entrenched legal clause regarding the protection of human dignity. Schwartzberg argues against that clause, and links the German practice of legal entrenchment to some of the legal theorists in the Weimar Republic, as well as to Germany’s limited democratic autonomy following the early post-war years.
In her conclusions, Schwartzberg reformulates her observations regarding legal entrenchment in the four specific historical cases into four different aspects of the interconnection between democracy and constitutionalism. Chapter 6 suggests therefore that there is a positive and mutually reinforcing relationship between the practices of legal changeability on the one hand and democratic innovativeness, deliberation, concept of human frailty and human dignity on the other. It concludes, in a persuasive and rather compelling argument, that while a democracy has “capacity . . . to sustain itself” (p.205) and hence does not need constitutional entrenchment for the reasons of self-preservation, democratic life entails living with uncertainty and risk. This is because only under the conditions of unpredictability of democratic decision-making can responsibility for one’s political actions exist as a meaningful public practice.
Overall, this is a very informative and interesting book, which will appeal to legal historians and scholars of constitutionalism. It is also likely to appeal to political and legal theorists, even though the theoretical discussions in the book have remained rather underdeveloped. The combination of a detailed and comprehensive historical analysis, well-structured conceptual framework, normative democratic argument, and an accessible style of writing will make this book an enjoyable and useful read for a wide scholarly audience, including undergraduate students of law and political science, as well as more advanced graduate students [*803] and researchers specializing in the issues of constitutionalism and democratization.
Ackerman, Bruce. 1993. WE THE PEOPLE , VOLUME 1, FOUNDATIONS. Cambridge, MA: Belknap Press.
Ackerman, Bruce. 2000. WE THE PEOPLE , VOLUME 2, TRANSFORMATIONS. Cambridge, MA: Belknap Press.
Habermas, Jeurgen. 1996. BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY. Cambridge, MA: MIT Press.
© Copyright 2007 by the author, Magdalena Zolkos.