Book Reviews : The Tempting Of America: The Political Seduction Of The Law by Robert H. Bork. The Free Press, 1990. 432 pp. cloth

• Author: Theodore N. Ferdinand
• DOI: 10.1177/088740349000400306
• Published date: 01 October 1990
• Date: 01 October 1990
• Published By: Sage Publications, Inc.

278

Book

Reviews

The

Tempting

Of America:

The

Political

Seduction

Of

The

Law

by

Robert

H.

Bork.

The

Free

Press,

1990. 432

pp.

cloth.

Whatever

else

he

may

be,

Robert

Bork

is

a

bold

and

original

legal

thinker.

In

The

Tempting

of America

he

sets

forth

his

provocative

analysis

of

legal

reform

in

democratic

society.

When

tempers

have

cooled,

his

ideas

may

well

have

sparked

a

reassessment

of

judicially

sponsored

legal

reform

-

though

probably

not

in

the

direction

he

proposes.

His

conclusion

that

in

most

circumstances

legislative

reform

is

preferable

to

judicial

reform

hinges

on

the

distinctions

he

draws

between

judicial

and

legislative

reform.

Enduring

legal

reform

by

a

judiciary

in

the

common

law

tradition

is

formed

upon

either

(1)

a

constitutional

foundation,

or

(2)

legal

precedent

that

in

turn

rests

on

a

constitutional

foundation.

New

law

acquires

the

legitimacy

and

compulsion

of

the

Constitution

and

established

precedent.

For

Bork

there

is

little

room

for

judicial

maneuvering,

because

the

force

of

law

comes

from

its

objective

neutrality

and

its

links

with

tradition.

Judicial

idiosyncrasy

gives

it

a

troublesome

particularism.

Further,

its

continued

legitimacy

in

succeeding

generations

depends

upon

a

faithful

preservation

of

its

meaning

in

future

formulations,

because

it

is

this

meaning

and

only

this

meaning

that

has

been

ratified

through

democratic

process.

Doctrine

that

has

drifted

over

the

years

from

original

intention

suffers

accordingly.

Legislative

reform

of

the

law

is

more

convenient

and

more

authoritative

in

most

novel

situations

demanding

new

law.

The

legislature

may

review

any

issue

whether

it

is

based

on

legal

precedent

or

not.

Anyone

can

be

invited

to

testify

whether

the

evidence

is

based

on

hearsay,

science,

or

personal

experience.

Most

key

groups

will

insure

through

lobbying

that

their

voices

are

heard

so

that

any

piece

of

crucial

legislation

will

be

shaped

not

simply

by

the

wishes

of

those

who

hope

to

benefit

but

also

by

the

fears

of

those

who

stand

to

lose.

If

a

legislature

somehow

begins

to

pursue

an

unpopular

course,

it

is

not

difficult

to

elect

a

more

representative

one

and

correct

its

flawed

legislation.

Legislation

is

more

flexible,

more

easily

corrected,

more

representative,

and

more

effective

than

judge-made

law.

In

most

cases

it

is

the

preferred

method

of

reforming

the

law

from

Bork’s

standpoint.

But

legislatures

suffer

some

serious

limitations,

unacknowledged

by

Bork.

Legislatures

including

the

Congress

are

most

effective

in

dealing

with

concrete

disputes

in

which

the

issues

are

clear

and

specific.

When

dealing

with

abstract

legal

doctrine,

legislatures

are

usually

governed

by

popular

ideologies,

as

well

they

should

be.

As

a

result

legislatures

are

skeptical

and

conservative

regarding

new

legal

doctrine

(see

Bork’s

confirmation

fight

with

the

Senate).

They

are

unlikely

to

be

persuaded

by

insightful

argument

alone,

and

minority

opinion,

even

if

basically

sound,

frequently

receives

short

shrift.