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Book Review
| M. N. S. Sellers, Republican Legal Theory: The History, Constitution, and Purposes of Law in a Free State, New York: Palgrave Macmillan, 2003. Pp. x + 200. $69.95 (ISBN 1-4039-1575-X).
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| Sellers's book is perhaps more of a handbook for those who wish to set up good governments than it is a history of "Republicanism," or a study of the interaction between "Republicanism" and the law. Nevertheless, it is a fine short summary of Republican governmental and legal theory and belongs on the shelf of legal historians or political scientists concerned about creating an alternative to the currently ascendant liberal bias of the media and the academy. "Republicanism" was all the rage in history departments and law schools a few years back, following upon the rediscovery by Gordon Wood, Caroline Robbins, Bernard Bailyn and J. G. A Pocock that the American Revolution and the United States Constitution were about more than John Locke and that English Republican or "Commonwealth" thinkers, notably Harrington, Sidney, Trenchard, and Gordon were profound influences on our framers. Morton Horwitz, Frank Michaelman, Cass Sunstein, and a few other intrepid law professors (me included) then sought to apply the insights of the Republican revival in the history departments to the study of legal and constitutional history. The result was a mixed bag, as Republicanism became a protean tool allowing legal scholars to promote whatever particular political philosophy they favored; for Cass Sunstein, Republicanism looked a lot like FDR's New Deal, and for me Republicanism bore more of a resemblance to the contemporary Federalist Society. |
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The raving over Republicanism subsided a bit after James T. Kloppenberg's brilliant article ("The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early America," Journal of American History 74 [1987]) reminded us that, at the time of the founding, Protestant Christianity and Lockean Liberalism were as important as were Republican theories. Still, because of the long tradition of Republicanism, its obvious appeal as an alternative to monarchy and aristocracy, and its availability to both socialist and capitalist societies, it remains a favorite topic of political discussion, particularly in America where "Republicans" have included everyone from Thomas Jefferson to George W. Bush. The great accomplishment of Sellers is to furnish the materials to figure out what "Republican" really means, and who qualifies as real Republicans. |
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For Jefferson "Republican" meant getting as close as possible to "democracy," while for Rousseau a "Republican" government was one that embraced the rule of law and implemented the general will. One could quote dozens more definitions, but Sellers nicely bridges the gap between Jefferson and Rousseau, provides a checklist for all the necessary features to make a government truly Republican, and shows that his key features were in place as early as the Roman Republic, and that Marcus Tullius Cicero must be recognized as the essential statesman. Sellers's "fundamental requirements of republican government" (viii) are (1) popular sovereignty, (2) the rule of law, (3) a deliberative Senate, (4) a democratic popular assembly, (5) elected executives, (6) an independent judiciary, and (7) "a general system of checks and balances, to protect public liberty against corruption and to safeguard the equal individual rights of all citizens against each other and against the state" (viii). Ciceronian Republican Rome possessed all of these in nascent form, at least, and, presumably, influenced by Montesquieu, they reached perfection in the United States Constitution of 1787, as explicated in the Federalist Papers. All of these "fundamental requirements" are necessary to ensure that a "Republican" government, defined as the Latin would require, as one that serves the "common good" (Res Publica) (1), does not decay into one that serves the interest of a clique, aristocracy, or monarch. |
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Bearing these requirements and this purpose in mind, Sellers has produced a picaresque tour of Republican states and theorists including not only Cicero, but also Plato, Aristotle, Polybius, Adams, Madison, Hamilton, and Jefferson and side trips to consider theorists who never quite seemed capable of grasping Republicanism, such as Thomas Hobbes, John Austin, or H. L. A. Hart. Sellers calls what he has done "fifteen discourses on republican legal theory" (1), and, in search of Republicanism, he ranges from Greece and Rome, through Italy, Holland, France, Britain, the United States, and even the United Nations. Not all of these fifteen discourses are equally riveting, and as fifteen relatively similar topics in government and jurisprudence ("Republican Legal Systems," "Republican Impartiality," "Republican Authority," "Republican Government in the United States of America," "Republican Principles in International Law," etc.) are reviewed, subjecting them to the matrix of Sellers's fundamental requirements, there is a bit of repetition and the occasional glazing over of eyes. Nevertheless, there is in Sellers's modest 148 pages of text and 55 pages of footnotes a profound defense of the rule of law and the liberty it brings and the materials for constructing a powerful critique of everything from the cacophony of our current political parties to the dubious machinations of the United Nations. And if this were not enough, one could recommend the book to one's fellows simply because Sellers claims that "Legal historians are heroes of social change because they preserve subversive and alien patterns of thought in the amber of their scholarship, to challenge the pieties of their time-bound contemporaries" and laments that right now "Law school, courts and lawyers are leviathans of complacent conformity in a sea of limited imagination" (105). Just so. |
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| Stephen Presser
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| Northwestern University |
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