The Limits of Law: Essays on Democratic Governance.

• Author: Krook, Mona Lena
• Position: Book Review

By Peter H. Schuck

Boulder: Westview Press, 2000, 492 pages

Law is a crucial element of democratic governance. It reduces the potential for arbitrary rule by codifying citizen rights, obligations and protections while drawing lines delimiting the scope for government action and decision-making. However, despite the general role of law in governance, legal regimes vary enormously over time and across national borders. In recent years legal codes have increased not only in volume but also in complexity, as new laws emerge to address new issue areas and update or resolve lingering ambiguities about existing laws. At the same time, legislators in different countries employ the law to quite different ends, minimizing government interference at one extreme and maximizing government intervention at the other.

Peter H. Schuck responds to these developments in his book, The Limits of Law: Essays on Democratic Governance, addressing potential obstacles to the effectiveness of law as legal measures become an increasingly pervasive force in society. Bringing together a series of essays published between 1981 and 2000, he organizes the volume into three sections. Part I explores theoretical questions of law and governance, including the causes and consequences of legal complexity; the relationship between science, law, and politics and issues of law and governance in light of federalism and devolution. The essays in Part II apply these concepts to existing court cases and legal developments in the United States, examining issues as diverse as social and economic regulation, federal administration, partisan gerrymandering and the evolution of mass tort litigation. Part III concludes with a previously unpublished essay integrating the insights of the preceding theoretical and empirical discussions.

Throughout the volume, Schuck focuses on various limits to law as a mechanism for governing society He begins by arguing that some limits inhere in the nature of law. Law can secure order and justice, resolve disputes, facilitate transactions, guide and restrain official power, articulate public values, shape incentives and goals and assure a degree of formal equality among citizens. Nonetheless, legal intervention may also be perceived as intrusive, ineffective and illegitimate. Because laws tend to suppress natural diversity by channeling it into narrow, artificial legal categories, they simplify reality in ways that may not reflect actual circumstances. An obvious example of this tendency in the United States is categorization based on race--a suspect category already, from a...