Reviews
| Published date | 01 November 2001 |
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00362 |
| Date | 01 November 2001 |
REVIEWS
Martin Loughlin,Sword and Scales: An Examination of the Relationship
Between Law and Politics, Oxford: Hart Publishing, 2000, xi + 241pp, hb £27.50;
pb £12.00.
Much is being written about constitutionalism at the moment. What is refreshing
about the book under review is the author’s grasp of the history of ideas and the
recognition of the fact that there is little that is truly novel. The book is promoted as
an indispensable companion for any student or teacher interested in law or politics. It
certainly is essential reading for those willing to engage in critical thought on many
of the ideas which underpin law and politics. Loughlin has undertaken a difficult task
and produced a thought-provoking book. Although it primarily summarises the work
of others, Loughlin brings to this exercise a particular sensitivity to the twists and
turns of intellectual history. At a time when reductionism is popular, Loughlin
complicates the picture in a way which should encourage real engagement with the
history of legal and political thought. There are 15 chapters grouped under 5 main
themes: law and politics in the conversation of mankind; justice; the state;
constitutionalism; and conclusions. Each chapter offers a perspective on one of the
main themes.
Loughlin’s premise in the book is that little headway will be made if law is
presented in glowing terms while politics is portrayed negatively. Straightforward
one would think, but lawyers in particular are too often prone to sneer at the political.
Law, so the story goes, is the realm of security and stability while politics is messy
and chaotic. Law cuts through the mess of democratic politics to bring justice down
to earth and offers a moment of decision. Loughlin’s book is a straightforward
rejection of this form of simplistic thought. He is right to see modern debates as
secular versions of theology. In addition, he highlights the symbolic and rhetorical
importance of the imagery of law and politics. These themes run throughout the book.
Why focus so heavily on the history of ideas? He is opposed to those who say that
ideas simply do not matter. As he notes, these individuals are ruled by the thoughts of
others and in the worst cases do not even know the history of the ideas they are giving
practical expression to. In order to refute this approach, Loughlin treats the reader to
his perspective on a range of scholars, from Hobbes and Locke to Tocqueville and
Paine.
On modern legal scholarship he welcomes the trend of venturing beyond the
library to explore the impact of law, but argues that where this work goes wrong is in
the assumption that it has access to the real world. There is, as he argues, no such
thing as unmediated access and these scientific worlds are social constructions.
The exploration of justice (one of his main themes) again draws upon theological
terms, and here the influence of Carl Schmitt is obvious enough. Loughlin observes
how the judges take on the form of a modern priesthood who mediate between
heaven and earth. He notes that the iconography of justice involves intimidation in
the sense that judicial ceremony is intended to represent earthly authority. Much of
the iconography of law retains this foundation in other-worldly power. These insights
do not form the basis for the outright rejection of the judicial role in his work.
Loughlin notes that most people accept that this level of detachment is essential to the
political role of the judges. On the judicial role the issue for Loughlin is not the
ßThe Modern Law Review Limited 2001 (MLR 64:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 945
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