Ideology and Law
Journal of Political Ideologies, Vol. 11, 2006
13 Pages Posted: 1 Mar 2006
This article sets out to consider the value ideology might have in illuminating an understanding of law through an examination of the different attitudes taken to ideology within a variety of theoretical perspectives on law. It also seeks to establish what implications would follow for the contribution law might make to our understanding of politics from the conclusion that ideology does have a role to play in a theory of law. In surveying both hospitable and hostile responses to ideology, the aim is to achieve a broader understanding of practice and to avoid the restrictions artificially imposed by a narrowly constructed theoretical understanding.
A perspective regarding ideology as conceptually redundant, taken by Tamanaha and Lucy, is rejected in favour of an understanding of a distinctive justificatory function for ideology, suggested by Morgan. This is seen to be premised on the existence of conflict between opposing political outlooks. Dworkin's perspective on banishing political conflict and ideology through the meeting of politics and law is considered to be artificially removed from the realities of political life. The legal positivist perspective, which may acknowledge political conflict and ideology but keeps both out of its core understanding of law, is considered to be artificially removed from the realities of legal practice.
In addition to examining the role of political ideology for law, the possibility of recognising an internal legal ideology is explored. This may take the form of a "guild ideology" among lawyers, as recognised by Bentham and Shklar, or of other commitments to peculiarly legal values, such as the Rule of Law. It is suggested that a kind of legal ideology can be discerned in a positivist theoretical perspective on law, notably in Raz's "detached" normative statements.
The welcome provided to ideology by a heterodox theoretical perspective on law is discussed in relation to both ideology critique and ideological struggle. Kennedy's adoption of ideological struggle to replace conventional understandings of law is contrasted with a more ambitious attempt to explain law through ideology, exemplified by Balkin. The latter approach harnesses the devices of totalizing ideology and reflexive ideology, which a closer examination reveals to be caught up in a contortion of language and incapable of delivering an ideology based account of law.
Finally, the harmonious relationship between politics and law presumed by a natural law perspective is shown to make the prevalent notion of ideology unnecessary. However, an alternative notion of ideology used to express the conceptual branch of a pure political science is considered to be an artificial theoretical construct, removed from the realities of enduring conflict between different political outlooks and a fractured relationship between politics and law. Within this setting there remains a distinctive job for law to perform in dealing with the conflicting demands of unfinished ideologies, and a place for ideology in working through the unfinished business of the law.
Keywords: ideology, tradition, ideology critique, ideological struggle, Kennedy, Balkin, totalizing ideology, reflexive ideology, law and politics, Dworkin, political theory, Raz, legal point of view, Bentham, Shklar, legal ideology, legal positivism, Aristotle, natural law
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