Wednesday, August 02, 2006

Legalism - Law and Ideology

Legalism is the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationship to consist of duties and rights determined by rules. Like all moral attitudes that are both strongly felt and widely shared it expresses itself not only in personal behavior but also in philosophical thought, in political ideologies, and in social institutions. It is in short, a complex of human qualities, not a quantity to be measured and labeled.

It is suggested here that one ought not to think of law as a discrete entity that is "there" but rather to regard it as part of a social continuum. At one end of the scale of legalistic values and institutions stand its most highly articulate and refined expressions, the courts of law and the rules they follow; at the other end is the personal morality of all those men and women who think of goodness as obedience to the rules that property define their duties and rights.

Legalism as an ideology does express itself in policies, in institutional structures, and in intellectual attitudes. As a social ethos which gives rise to the political climate in which judicial and other legal institutions flourish, legalism is beyond reproach. Legalism gives legal thinking its distinctive flavor on a vast variety of social occasions, in all kinds of discourse, and among men who may differ in every other ideological respect. Legalism is, above all, the operative outlook of the legal profession, both bench and bar.

The courts are expected to interpret the law, not to alter it. To seek rules, or at least a public consensus that can serve in place of a rule, must be the judge's constant preoccupation, and it affects his choices in ways that are unknown to less constrained political agents. To avoid the appearance of arbitrariness is a deep inner necessity for him. In the case where no basic social decision, whether made by court or legislation, can ever meet with unanimous approval in a heterogeneous society. Without consensus the appearance of neutrality evaporates.

Every offended party characteristically responds to a decision by accusing the judge of "legislating". It is not the law, which is clearly far from self-evident, but the judge, who is at fault, and an erring judge is a legislating judge, since the losing party begins its case by presenting its version of the true law.

As long as substantial interests and expectations are disappointed by judicial decisions, there can be no realization of legalistic hopes for a neutral judicial process.

Law exists to satisfy legally argued expectations, and the loser is sure to feel that the judge, not the law, has arbitrarily deprived him of "his own".

Modern legal theory would be incomprehensible if it were forgotten that its creators are themselves lawyers and that professional habits of mind exercise a real influence upon them as they strive to extract the formal essence of law from the confusion of its historical reality.

Abstract from J. SHKLAR; Legalism - Law and Ideology; 1964

1 comment:

Elmina Kenley said...

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