LEGALISMby Judith N. Shklar

LEGALISM by Judith N. ShklarReview by: Ann S. SheldonAdministrative Law Review, Vol. 20, No. 3 (APRIL, 1968), pp. 433-438Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/40708617 .

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LEGALISM. By Judith N. Shklar. Cambridge: Harvard University Press, 1964. Pp. ix, 246. $5.95.

Reviewed by Ann S. Sheldon*

Professor Shklar's thesis should deeply concern lawyers, judges, and legal and political theorists. She argues that legalism ("an ethical attitude, the content of which is that moral conduct is a matter of rule following") tends to become an ideology. (P. 1.) "A practicing lawyer might not rest with noting the difference between himself and others; he would insist that his way was simply the right and true view. That is the meaning of legalism as an ideology." (P. 10.) Her indictment is really twofold: legalism as such has an unpleasant content; moreover, those who are legalistic (both individuals and societies) are ideologically convinced that theirs is the total and solely adequate view. Legal- ism is further culpable because it is an ideology of "agreement" and fails thus to take account of the genuine and desirable diversity in modern mature societies. For it follows logically for Professor Shklar that, since legalists do not recognize that theirs is but one among many possible ideological choices, then the end or goal of legalism must be and is, in fact, "agreement." The consequence is that the ideology of legalism is inimical to the real bases of freedom in contemporary life: pluralism and tolerance of, nay, encouragement of, a "diversity of opinions and habits." Contrary to the goal of legalism "social diversity is the prevailing condition of modern nation-states and ought to be promoted." (P. 5.)

If Professor Shklar is correct, first that this is the essential nature of legalism, and secondly, that political freedom depends wholly upon recognizing legalism as but one among competing ideologies, then the indictment is serious indeed. The continued acceptance of legalism as a fundamental and aH-encompassing view, then, would be a dangerous distortion of reality which we dare not permit ourselves.

Professor Shklar has assumed the responsibility for looking at legalism from the outside, as one who is not committed by professional training or livelihood to law as the central fact of political life. Since most of what is written about law comes from those interested in maintaining both its central and fundamental character, and in perpetuating the

* Lecturer in Political Science, Claremont Men's College.

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434 SECTION OF ADMINISTRATIVE LAW

myth that only the initiated are competent to discuss the subject, the healthy skepticism of this essay is welcome indeed.

This book is written, it should be noted, only for those who are already familiar with legal theories and their persistent controversies. (The argument is infrequently interrupted by a name or a specific reference, except in the final, section in which she deals with politcal trials.) Frankly a polemic, the book is an attempt to begin a dialogue which would, among other benefits, significantly extend the traditional concerns of legal theory. The essay is divided into thirds: "Law and Ideology," "Law and Morals," "Law and Politics."

Part one of the essay explores the nature of legalism as ideology.l Legalists have ideologically assumed the "prevalence" of legalism and of law, and have made a sharp distinction between law and non-law, which leads to its total divorce from the social context, and often from history and experience as well. Professor Shklar further criticizes legalism for its belief that the rules are simply "there," for its strong "con- servatizing" bias, and for its fear of arbitrariness as the thing to be avoided.

Professor Shklar then turns to Tocqueville for support of her own fundamental rejection of legalism-as-an-ideology by quoting him on the legal ethic: "they [the lawyers] are less afraid of tyranny than arbi- trary power," and she tells us he wrote that lawyers represented aristocratic habits of thought. (Pp. 15-16.) She attributes to Tocqueville "suspicions" about the legal caste which were shown to be well founded during the Nazi era when the German legal profession initially ac- quiesced in Nazism. That is, Tocqueville, like herself, feared that "pro- cedurally 'correct' repression is perfectly compatible with legalism." (P. 17.)

However, she misreads Tocqueville. Far from being suspicious of the legal caste, Tocqueville regarded its influence in the United States as very desirable. Lawyers usefully represented an aristocratic principle in an otherwise democratic society. This meant that the legal mind and legal training, with the habits of order, the taste for formalities, and "a kind of instinctive regard for the regular connections of ideas," would

1 Ideology as she uses it means political preferences, which are "merely a matter of emotional reactions, both negative and positive, to direct social experiences and to the views of others." (P. 4.) Her own ideology is that of a "barbones" liberalism (without either a belief in progress or in any specific economic scheme), committed to tolerance as a primary virtue. (P. 5)



BOOK REVIEWS 435

act as a "security against the excesses of democracy.'^ It is significant that he discusses the legal profession under the heading, "Causes Which Mitigate the Tyranny of the Majority in the United States." Seeking ways to prod democracy toward a realization of its best potential instead of its worst, he pointed out, "without the admixture of lawyerlike sobriety with the democratic principle, I question whether democratic institutions could long be maintained."3 And can any of us say for certain that he was not right?

Professor Shklar's failure to see Tocqueville's positive attitude to law is further reflected in her remarks on analytical positivism and natural law. She seems to be criticizing those two opposing legal theories because they both "allow judges to believe that there is always a rule somewhere for them to follow." (P. 12.) This is consistent with her attack on legalista in general, that it sees rules as simply "there." But surely she does not advocate "unleashing" the judge. Is it not desirable that he feel himself constrained within a certain tradition, by his society's dominant values, by the ideology of his judicial office, or by the role he is expected to perform? And isn't this the true reason for preferring a government of laws and not of men; can it not objectively be defended (as distinguished from mere ideological preference)? On what other basis would Professor Shklar have judges claim the right to sit in judgment?

Professor Shklar gives two main reasons for writing her essay. First, in the face of the challenge from outside western European culture, at- tempts have been made to identify the Western political tradition. Many find that essence in the "predisposition to discover, construct, and follow rules": namely, legalism (or rationality in Max Weber's formula- tion). (P. 21.) She regards this as doing such violence to the total Western tradition that it demands a serious answer. For Professor Shklar the real question is "whether it is valid to extract a quintessence of 'the West' by subtracting from its history all that it shares in various degrees with the rest of mankind." (P. 22.)

Second, the growing formalism in philosophy and, more recently, in political theory, appears to be related to legalism, especially to that legal theorizing for which analytical positivism is responsible. In order to maintain ideological neutrality toward law, and to be a legal science, analytical positivism (or positivism), beginning with Austin, has elab-

2 Alexis de Tocqueville, Democracy in America, ed. Phillips Bradley (New York, 1961), I, 283.

3 Ibid., 286.




orated sets of rules and definitions seemingly divorced from political and moral preferences. The attempt to devise ways of thinking about law free from ideological taint has today resulted in rigidity, an emphasis on formal definitions, an insistence on the complete separation of law from morals, and removing law from its specific social and historical context. Philosophy itself is today dominated by a similar formalist pre- occupation with the meaning of words, language and definitions. Legal- ism thus seemed to Professor Shklar a good starting point for a general inquiry into formalism in social theory as such.

Professor Shklar's theme - the extent to which legalism represents but one set of political preferences among many and that ideological legalism flies in the face of desirable social diversity - is again mani- fest in her discussion of the impossibilty of separating law and morals. Positivist and natural law theories both wrongly posit a clean separation between law and morals. Although her own preferences would make her sympathetic to positivism (because it is liberal in inspiration and skeptical about ethics), she is fair in her account of the difficulties of both views. Some of the book's most enlightening passages show that positivism itself represents a choice among political values, in spite of its fundamental commitment to intellectual detachment. Further, the result of the obsession of natural law theorists and positivists with each others' views and with the ever going-on debate have narrowed the scope of legal theory almost to the point of irrelevance.

Professor Shklar categorizes the American legal realists (or "New Deal realists") as a variation of natural law theorists. Natural law theorists are at fault because they seek to impose unity, or to demonstrate that such unity already exists, by an appeal to a higher standard. In her analysis, the legal realists are really natural law theorists because they had a conception of a public interest or of a public good (in the form of the New Deal program). Although, as will be clear in a moment, the legal realists do many things she ought to approve, they are still found wanting. Her rejection of legal realism cannot be understood un- less one remembers that Professor Shklar's fundamental point concerns "agreement" - the fact that it does not and cannot exist, and the bad consequences of attempting to impose it.

Nevertheless, it ought to be remembered that, in any society where moral diversity exists, agreement-as-an-end-in-kself can only be achieved by totalitarian methods, and that from Calvin's Geneva to Nazi Germany and Soviet Russia the price of unity has been very high and the moral returns very low indeed. (P. 100.)



BOOK REVIEWS 437

Thus her discussion minimizes or overlooks the extent to which the legal realists concentrated on getting away from the legal system as a discrete entity, looked at effects instead of rules, and tried to understand law in the broadest possible context. This would seem to be precisely what Professor Shklar wants - including a skeptical attitude toward the assumption that the rules are simply "there," or "rule skepticism." Instead, she views "rule skepticism" as a kind of spurious concern on the part of the legal realists, explaining their views in psychological terms, just as Jerome Frank would have done.4

To be sure, all of the New Deal realists were united in one belief: the "basic myth" must go. The basic myth was that judges find the law "there" rather than make it. This was, of course, the judicial rationale for holding New Deal legislation unconstitutional, and that is why it was obnoxious. (P. 93.)

Since her primary concern is the defense of diversity at all costs, she depreciates even those improvements in legal theory which she seems to be calling for, when they are accompanied by the specter of agreement; in this case a concept of the public good.

In the final part of her essay Professor Shklar turns to the problem of law and politics. She has a penetrating discussion of political trials in modern times, their uses and their efficacy. Those she considers include both the Nuremberg and Tokyo War Crimes Trials, and the Dennis Case,5 the most recent domestic American political trial. Within the context of the Dennis Case, Professor Shklar wisely singles out the opinion of Justice Jackson, which is at the same time, the most disturbing and the most pointed of the opinions in that case. "His real service was ... in being the only one of the justices who made perfectly clear what political trials in the contemporary world mean." (P. 219.) Thus the problem of political trials leads us back to the opening theme of the book. The possibility of political trials is the possibility of the ultimate restriction of political freedom. Here is the source of Professor Shklar's concern with legalism-as-ideology and its implications: how do we preserve political freedom? Her answer was given in the following words:

Pluralism is thus treated as a social actuality that no contemporary political theory can ignore without losing its relevance, and also

4 Professor Shklar concentrates on Jerome Frank as the "legally most sophisti- cated" of these men. Apparently it is simpler to attack Frank's extreme psychological approach to the problem of law than it is to deal with the work of, for example, Karl Llewellyn, although both are equally legal realists.

5 Dennis et al v. U.S., 341 U.S. 494 (1951).




as something that any liberal should rejoice in and seek to promote because it is in diversity alone that freedom can be realized. (P. 5.)

Because of this commitment she attacks legalism and natural law theories among others, for they (she believes) aim to overcome diversity, and are both ideologies of agreement and therefore intolerable. It warps both legalism and natural law theory to characterize them pri- marily as the concern for "agreement-as-an-end-in-itself." (P. 100.) This is only a part of the picture, and a truer understanding of either demands a good deal more. When agreement is argued for it is only on behalf of certain basic, immensely valuable points (such as the agreement that it is preferable to settle differences peaceably), and agreement is never an end-in-itself .

This is not to leave the impression that those to whom the book is addressed can ignore Professor Shklar's criticisms. Many of them ought to be taken seriously by members of bench and bar, and by citizens of "legalistic" societies like the United States. She has brought to the problem a point of view which is badly needed; we must force ourselves constantly to try to see the legal system, the lawyers, and the law, as she sees them - with a healthy skepticism.



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LEGALISMby Judith N. Shklar