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Political Theory
The singular merit of this book is in Seidman’s insistence upon the political nature of judicial review decisions. Although now well understood, this question is not yet well established in the literature, and many still function with the conception of the judiciary as benign and neutral. However, Seidman argues that because this is not so, judicial review decisions should unsettle important political questions, else a political settlement will be imposed on many who may oppose it. A settlement, enshrining a partisan view, excludes, and the excluded may feel justified in not obeying that to which they have not consented and, therefore, consider not legitimate. Thus important questions should not be judicially settled so that the political process can produce a solution – which, by his standards, cannot be a settlement! This means that Seidman’s ideal society and constitution is one that is perpetually in the making, in flux and change. Incidentally, he is somewhat silent on whether the political process is settled or not.
Seidman uses three strategies. First, he assumes a very harsh, unchanging, set-in-stone view of any settlement, seen as a closed and fixed category, enshrining one exclusionary view, thus creating permanent losers. He contrasts this with the potential inclusiveness of an unsettled condition. But because any settlement would be exclusionary, permanent unsettlement, a continuing conversation in which politics looms very large, is the only desirable condition. The view that any settlement is always marked by periods of unsettlement and change does not get a look-in, although he is constrained to admit that individual cases must be decided and that there is need for some settlement if daily life is to continue. Second he confounds ‘fundamental’ and ‘policy’, the constitutional and the political, and makes quite unwarranted general assumptions (p. 34) that in effect create a bogus concept ready for demolition. Third he criticizes the two contemporary paradigms of liberal constitutionalism and democracy for their inadequacies but ends by accepting that they are relevant to and actually help create unsettlement. Such a volte face also characterizes his conception of unsettlement: his real fear – expressed at the end of the book – is that unsettlement may, after all, be a kind of settlement that many would reject!
‘Excluded middle’, confused concepts and ‘bad metaphysics’ plague this book. Lawyers are notoriously bad at constitutional theory: since Dicey we have suffered at their hands, but Siedman goes further. For him a constitution is not a pre-political and pre-legal matter such that the process of making one would be different from the processes that a constitution thus made engenders. Failing to grasp this leads Seidman to expect the legitimacy of the processes that a constitution engenders necessarily to flow from and correspond to the legitimacy of the processes whereby it was made. And because this is an impossible expectation, the legitimacy of the provisions of any constitution can be thrown into doubt if one disagrees with them.
Finally, Seidman adds to the already difficult problems of the reader by using a number of words and phrases interchangeably but without any adequate explanation: one is hard put to know what he means by constitution, constitutional law, constitutional theory, theory of the constitution etc., but above all constitutionalism. Another problem – amongst many more – is that his analogies are often irrelevant, even bizarre, but he applies them and draws inferences from them.
The Editors record our regrets that since submitting this review, Fred Nash has sadly died. He was a loyal reviewer and supporter of the journal.
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