Douglas E. Edlin, Common Law Judging: Subjectivity, Impartiality and the Making of Law, Arbor: University of Michigan Press, 2016, 280pp, hb $75.00.

Published date01 May 2017
Date01 May 2017
AuthorMaksymilian Del Mar
Daniel Lee,Popular Sovereignty in Early Modern Constitutional Thought,
Oxford: Oxford University Press, 2016, 361pp, hb £60.00.
Sovereignty and asserting the power of the people were unusually prominent
themes in the news in 2016. While the title of Daniel Lee’s book suggests a
purely historical focus, the author is an assistant professor in political science and
makes references to important wider issues in political science at appropriate
points. Lee clearly wishes to address multiple audiences, and there is much
of value here for political scientists wishing to look beyond purely modern
literature, those interested in the interaction between law and political thought,
and intellectual history more generally. It would be a pity if this book were
read only by historical specialists.
The book covers a range of writers on the boundary of legal and political
thought, ranging from medieval civilians to Thomas Hobbes, in more or less
chronological order. Most of the writers are well-known in their fields. Lee
stresses the role of Roman law language, concepts and ideas in the ideas and
theories of sovereignty of these writers. Roman law shaped the terms of dis-
cussion (providing a ‘grammar’ as Lee puts it) in debates on sovereignty more
generally, through to the modern day. This is the theme running throughout
the book, with different sub-issues appearing in different chapters.
This is not an easy book, but it contains much good material worth mak-
ing the effort to find. Legal material and arguments der ived from it can be
complex. Lee navigates through the material well. There is some repetition
in explaining points of Roman law in different chapters, but readers without
much background in Roman law may find this helpful in reminding them of
key legal concepts at appropriate points.
Because the arguments of the various theorists were intricate and legalistic,
much of the book is not directly about popular sovereignty, but early-modern
sovereignty theory more generally, with popular sovereignty as a specific aspect
of that wider idea. I suspect that Lee recognised this issue; the beginning
of the discussion of Jean Bodin’s theory of popular sovereignty begins with
a telling observation that the chapter has ‘finally’ reached Bodin’s theory of
sovereignty in a popular state (217). This is not to say that the material about
sovereignty more broadly is unwelcome or unhelpful. Quite the contrary.
However, sometimes it only becomes clear how the wider discussion becomes
relevant to issues of popular sovereignty at a late stage. Readers will need to be
This need for patience reveals an important observation about ideas of
popular sovereignty in medieval and early-modern Europe. While popular
sovereignty is now largely taken for granted as essential in constituting political
authority, this was emphatically not the case several centuries ago. Sovereignty
itself was a contested idea, and popular sovereignty more contested still. Any
C2017The Author. The Modern Law Review C2017The Modern Law Review Limited. (2017) 80(3) MLR 540–567
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
claims as to its role had to be carefully justified. In a crucial respect, Lee’s book
is about charting the development of European thought from this contestation
to a more familiar (for modern readers) acceptance of popular sovereignty. By
the later seventeenth century the idea that ‘the people’ necessarily had some
sort of role in creating political authority was much more widely accepted,
perhaps even dominant.
The change is reflected by an important section in Chapter 9 (the final
substantive chapter). It is only here that a significant question for popular
sovereignty becomes a significant theme in the debate: who or what consti-
tuted ‘the people’ for popular sovereignty. Although Lee does not express this
observation, the late emergence of this issue seems to reflect the change in
acceptability of the idea of popular sovereignty itself. Chapter 9 is concerned
with ideas of popular sovereignty in the first half of the seventeenth century in
England. By this point, popular sovereignty was increasingly acceptable. Oppo-
nents increasingly challenged not the idea but the possibility of its application,
for example by querying whether it were ever possible for ‘the people’ to
exercise (or have exercised) that sovereignty.
Aside from the growing acceptance of popular sovereignty, there are two
particularly important lessons to take from this book. Both arise at various
points and are more observations on centuries of thinking and discussion than
conclusions. Both, however, provoke further questions. The first observation
is the possibility of separating the idea of popular sovereignty from democracy.
As Lee shows, in the discussion of popular sovereignty, and brought out with
characteristic clarity by Jean Bodin, sovereignty wasantecedent to the par ticular
constitutional model of a particular state. For Bodin, sovereignty was defini-
tional for a state, which could then choose from a range of possible models
of government, which could be monarchical, oligarchical or popular. While
Bodin did not insist upon sovereignty being popular, later theorists did, but
accepted Bodin’s insight about constitutional structure.
For these later theorists, the sovereign people could consequently establish
institutions of government which were not democratic. They could even exer-
cise their popular sovereignty to create a monarchy. In such a state all political
authority derived ultimately from the people, even if the people could not
themselves exercise political or governmental power. The people could, for
example, create a form of state in which the popular will (frequently an object
of terror to the early-modern elites, including many of the writers considered
in this volume) could be resisted. To move outside of the particular points
raised by the writers in the book, a sovereign people could, for example, create
a system in which the popular will as enacted through democratic legislation
might be blocked by an unelected legislative chamber or overturned by a court.
Such actions would not be democratic, but they would be grounded in popular
The second important observation is simply the importance of (Roman) law
in the history of ideas of sovereignty, and more specifically popular sovereignty.
The medieval and early-modern writers were happy mixing ideas from public
and private law, making this a complex set of texts. Lee is to be congratulated,
in particular, for engaging with the legal material on its own terms, unlike
C2017The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(3) MLR 540–567 541

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