LEGALITY AND COMMUNITY

Abstract

The ideology of legalism-the belief that there is special virtue in regulating social behaviour by law-is a hallmark of western culture. Its adherents think that law embodies justice, reason, and freedom. Even to a detached sociologist like Weber, it appears to stand in opposition to informal methods of social control which are both irrational and authoritarian: 'Judicial formalism enables the legal system to operate like a technically rational machine. Thus it guarantees to individuals and groups within the system a relative maximum of freedom, and greatly increases for them the possibility of predicting the legal consequences of their actions'.' But this self-image of law is one which many would now reject. Weber himself was notoriously ambivalent about the value of such rationality which he thought could easily trap us in the 'iron cage' of a meaningless existence. More recently, old sceptical doubts about legal rules have resurfaced to encourage the view that the outcome of disputes is nearly always under-determined by law and hence that the appearance of predictability is a delusion. Doubts about legalism are also expressed in another western tradition which rejects rather than welcomes the rule of law. The artificial bonds of legal right seem especially appropriate to a world of strangers in which social relations are opaque, where values are disputed, and where conflict of interest is rife. But even if this is a good account of the social circumstances of modern societies, there have been at various times and places communities which did not conform to its model, or which at least did not believe that they did. They could therefore coherently ask themselves, in a way that may seem absurd to us, whether law might be dispensable. This was certainly true of the early Christians, as shown in St. Paul's admonition against dragging each other through the pagan courts: 'Must brother go to law with brother-and before unbelievers? Indeed, you already fall below your standard in going to law with one another at all. Why not rather suffer injury ?'2 Another source of scepticism about the rule of law (without the idea that it is better to suffer wrong than to do it) lies in the Marxist notion that the end of class society will eliminate the social circumstances which give point to justice and to