Original text: Law and Ideology
Summarized: 2 minute read
1. Liberal Concepts of Ideology
Ideology is a science of ideas that understands ideas to issue not haphazardly from mind or consciousness, but as the result of forces in the material environment that shape what people think. Ideologies are ideas whose purpose is not epistemic, but political.
On this view, ideology can shape law, but there is no necessary connection between law and a particular ideology. Law may just reflect citizens’ principles and beliefs.
2. Radical Concepts of Ideology
Marx and Engels argue that ideology is shaped by the material world, and that it is the exploitative and alienating features of capitalist economic relations that prompt ideas. Ideology exists to protect these social conditions from attack by those who are disadvantaged by them.
Ideology is inherently conservative, quietist, and epistemically unreliable. It camouflages flawed social conditions, giving an illusory account of their rationale or function, in order to legitimate and win acceptance of them.
Marxists believe that legal ideology is a tool cynically wielded by the powerful to ensure submission by the powerless. However, Mannheim points out that legal ideology is neither true nor false, but a set of socially conditioned ideas that provide a truth that people want to hear.
In the 1920s, American jurisprudence came under the influence of another version of the critical view of ideology and law, which argued that law is inherently indeterminate and that judicial decisions are the effect of political ideas.
The Critical Legal Studies movement criticized the way law is taught and practiced to give the misleading impression of law’s certainty and legitimacy. The ideology of formal legal reasoning can remedy injustice, even if ideology often disables such remedies as well.
3. Ideology and the Sources of Law
Positivists argue that law is determined by institutional facts, not moral standards, and that the legitimacy of law can be determined by moral criteria outside the law that might recommend disobedience.
The natural law and legal positivist positions are united in the aim to provide a concept of the essence of law. However, the view of law as ideology finds trying to determine the essence of law as fundamentally misconceived.
The Marxist view of law as ideology has some affinities with rival views on the sources of law, and the Marxist view concedes that law emerges from the practices of society, though these practices are extra-legal – political, economic and social – rather than the practices of institutional facts internal to a legal system.
The Marxist view of law as ideology concedes that law is normative, but insists that law is defined in terms of the interests they serve, rather than the justice they embody. This suggests an impasse between the natural lawyer and the ideology position.
4. Ideology and the Rule of Law
The rule of law is the centrepiece of a liberal legal order. The view of law as ideology would not deny the presence of the rule of law in the liberal legal order, but it is interpreted as a device that serves the interests of the powerful.
For the left-wing theorist of ideology, the rule of law serves capitalist purposes in more sinister ways, because it implies that formal justice is the only relevant kind of justice.
The rule of law is not necessarily a capitalist ideology, and its formal virtues and agnosticism on the content of law make it immune to charges of a capitalist bias. Nevertheless, the proceduralism of the rule of law can be used to deflect social criticism and prevent radical change.
5. Ideology and Justice
The idea that law is ideological is an important contribution to legal scholarship. However, the Marxist view of law as ideology risks an unhelpful reductionism, and a cynicism about the law that is paradoxically contrary to the radical politics that inspired the critique of law as ideology.
The cynicism of some ideology views is actually a utopian view of law, since it counters the bleak portrait of legal ideology manipulated on behalf of the powerful with an ideal society without ideology or law.
Ideology must have emancipatory aspects in order to function as ideology. Legal guarantees of a procedural kind offer genuine protection to the subjects of the law, whilst conceding the quietist politics that proceduralism might engender.
Legal proceduralism has had considerable influence on political philosophy, particularly liberalism. Rawls argued that the basic institutions and public policies of justice should be understood as neutral with respect to comprehensive doctrines and their associated conceptions of the good, but retained a preoccupation with keeping the state at bay.
Rawls put much store by ‘the good’ of a well-ordered political society, but he retained the traditional view that perfectionist views are inegalitarian. Egalitarian perfectionists argue that we should seek to make human flourishing more equal in our theories of justice.
The ideological impact of proceduralism is not a reason to dismiss the rule of law, even in the most ambitious egalitarian community. Instead, the concept of ideology offers a nuanced and illuminating approach to legality that need not be nihilist or reductionist.
A conception of law as having a moral source, or a source in a system’s institutions, can be independent of a realistic appraisal of law’s ideological function, or the ideological process in which laws are made.