by Mauro Zamboni. Oxford: Hart Publishing, 2007. 222pp. Hardback. £45.00/$95.00. ISBN: 9781841137230.
Reviewed by Beau Breslin, Department of Government, Skidmore College, bbreslin [at] skidmore.edu.
Like so many areas of public law, the last ten years have witnessed an explosion of scholarship in legal theory. A quick (and admittedly unscientific) survey of the most recent volumes of the LAW AND POLITICS BOOK REVIEW reveals that close to two dozen books on legal philosophy have been reviewed in the last three years alone. In a sense, the intellectual giants in the field of legal philosophy – including, among others, Ronald Dworkin, H.L.A Hart, Hans Kelsen, Joseph Raz, and John Finnis – have given way to a new generation of contemporary legal theorists. Still, individuals like Jules Coleman, Trevor Allan, Jeffrey Goldsworthy, James Stoner, and David Dyzenhaus face a formidable challenge. To be taken seriously they must say something unique or different within a field of study that has been dominated for so long by relatively few intellectual figures. These scholars must find their way out of the enormous shadow cast by several intellectual giants, and they must do so by respecting the work of those who cast the shadow in the first place. The result is that fresh scholarship in the area of legal theory often feels as if it is reactionary; it has the distinct appearance of responding to the dominant jurisprudential voices. To be sure, all public law scholarship in some sense builds on the work of others; it just seems more acute or noticeable in the area of legal theory. The same names always seem to come up.
Lest I be mistaken, I do not believe that is a bad thing. There is a genuine and coherent order to the entire discipline of legal theory and jurisprudence. One can trace the development of the philosophy of law back to its intellectual roots, where there is a legitimate and meaningful grounding of fundamental ideas and first principles. Make no mistake, there is also legitimately interesting work coming from the pens of the newest generation of legal philosophers. The recent volume, COMMON LAW THEORY, edited by Douglas Edlin, typifies this reality.
Mauro Zamboni, a full-fledged member of the new fraternity of legal philosophers, is one who understands the tradition of his discipline. What is more, he fully respects that tradition. His short book, THE POLICY OF LAW: A LEGAL THEORETICAL FRAMEWORK, at once builds on the impressive scholarship of his intellectual forebears while at the same time offering new insight into a (surprisingly) understudied area of inquiry: the relationship between politics and law. He delivers a decent book – a good book, in fact – and thus manages to shore up an area of legal philosophy that needed greater attention. [*468]
Zamboni’s intellectual strategy in THE POLICY OF LAW will be familiar to those who study jurisprudence. It is in fact a very traditional approach to constructing a legal argument. He starts, in Chapter 1, by painting the scholarly landscape with sweeping, though not irresponsible, brushstrokes. In this case, he insists that there are three basic models of contemporary legal theory: the autonomous model, promoted by the writings of legal positivists and analytic jurisprudes like Hans Kelsen and H.L.A. Hart; the embedded model, sponsored by the principal scholars of the critical legal studies tradition, the law and economics proponents, and the natural lawyers; and the intersecting model, articulated most accurately by American and Scandinavian legal realists. The autonomous model, he notes, understands that the law is connected to political values articulated in the polity – or rather the law may reflect the political values in a given community – but that each phenomenon remains independent. In contrast, the embedded model suggests that a closer relationship exists between political interests and legal outcomes. Finally, the intersecting model insists that law and politics are forever intertwined. In short, he wants to ask the question “how much politics is there in law?” (p.11).
Once his general portrait is unveiled, Zamboni then settles into his principal task. Anticipating the intellectual direction in which he plans to take us, his general organization of the field is plausible because it derives from his perspective of the important link between law and politics. In other words, we are alerted, by his specific ordering of the field of legal theory, that he is primarily interested in that relationship between law and politics. Indeed, he claims that a critically important line of inquiry has been marginalized in most contemporary legal theory and that the result of such neglect has been only a partial picture of the nature and the study of the law. He understands that “the vast majority of contemporary legal theories recognize, in one way or another, that the legal and political phenomena have spaces where they touch upon each other” (p.62). And yet Zamboni insists that there is not as much self-conscious attention to the question of how much politics there is in law as the topic itself deserves. In a classic intellectual move, he has thus identified a niche, an intellectual space in which fellow jurisprudes have either refused to enter or, more accurately, treaded lightly to this point. That intellectual space is the intersection of law and politics, or, in his words, “the policy of law.”
Beginning in Chapter 2, Zamboni explores the relationship more fully. He chooses a metaphorical image – a “grey box’ – as his vehicle for detailing precisely how politics and law converge in each of the jusrisprudential models. He describes the convergence as a “transformational moment,” a “moment when the law-making and its actors transform the values expressed inside the political arena into legal categories and concepts” (p.63). According to Zamboni, contemporary legal theorists understand that the conversion of political values into law occurs in a “grey box,” not a “black box,” where there might be more clarity about that change. The metaphor of the “grey box” represents Zamboni’s subtle slap on the wrists of contemporary legal philosophers. “[L]egal scholars leave [*469] [the transformational] moment in a grey world, either as an underestimated or not adequately analyzed moment of the law-making processes” (p.64). That, he says, is a real problem.
The claim that contemporary legal theorists place the transformational moment at the “borders” rather than the interior of their scholarly work appears in various places throughout THE POLICY OF LAW. Yet in Chapter 3, Zamboni recalibrates the evaluation of the transformational moment, insisting now that legal scholars place the transformational moment “in a central position in their models of the law and of the working legal order” (p.120). All is not well, though; that abrupt recalibration does not mean that the critical thread of Zamboni’s volume is any less taught. He is not eager to let contemporary legal theorists off the hook. In the third chapter, Zamboni examines the way some of the most prominent political scientists – including Dahl, Lasswell, Easton, and Almond – think about politics and policy and pronounces them quite capable of understanding the relationship between politics and law. Turning to his own jurisprudential colleagues, he then highlights some of the “deficiencies” of legal theories when contemplating the complete picture of the policy of law. He claims that if one “accepts the political scientist’s definition of policy as a network of both processes and decisions with a conversional function of inputs and outputs” . . . what rises to the surface are the “deficiencies of the idea of policy as used by lawyers today; a legal perspective that limits the meaning of policy to only one part of the phenomenon as identified by political scientists, i.e. to only the final result (standards) in the form of political evaluations and decisions affecting the legal world” (p.120; emphasis in original).
Inspired by the work of these and other political scientists, Zamboni then “redesigns” the “theoretical frameworks of the transformational moment” so as to replicate as much as possible the admirable qualities of a policy-based approach presented in Chapter 3. The redesign takes place in Chapters 4 and 5. Here he finally lays out his “policy of law” theory, defined, in his words, as “the space in which values entrenched in political decisions are transformed into law, having an effect on the existing legal order,” or rather “as a web of conversional processes and decisions located inside the legal arena” (p.196). Zamboni is careful to distinguish his theory – the policy of law theory – from close relatives, the politics of law analysis and the sociology of law theory. He writes convincingly that his theory differs from these others. What is more, he is equally convincing that contemporary legal theorists can learn from important scholarship in political science.
There is much to recommend about THE POLICY OF LAW: Zamboni sheds light on an area of legal philosophy that is surprisingly understudied; he transcends disciplinary boundaries to borrow from the work of political science; and he offers an interesting and credible legal theory. The book is accessible to the sophisticated reader and will be particularly interesting to graduate students and advanced undergraduates who are curious about the ways in which different jurisprudential paradigms can be organized around political [*470] dimensions. On the negative side, the book is sometimes less clear than it should be; I found myself asking for a bit more detail during the portions of the volume devoted to descriptive analysis. The author is also repetitive – witness the fairly lengthy synopsis in Chapter 6 in which Zamboni uses almost verbatim language borrowed from the first five chapters of the text – and I am not at all sure that his attempt to apply the theory in more global contexts (in supranational and international dimensions) is as successful as his principal theoretical mission.
That said, it is still a fine book. Perhaps the volume’s greatest virtue is its ability to build upon and redefine some of the more familiar threads of legal philosophy. In seeking to narrow the scope of inquiry to just what the dominant legal theories have to say about the relationship between law and politics, Zamboni is broadening our understanding both of those foundational theories and of the connection between law and politics itself. As such, he has performed a real intellectual service for contemporary students of legal theory, all of whom should give this book a glance.
Edlin, Douglas E. 2007. COMMON LAW THEORY. New York, New York: Cambridge University Press, 2007.
© Copyright 2008 by the author, Beau Breslin.