Philosophical Review

Legalism by Judith N. Shklar

Review by: H. A. Bedau
The Philosophical Review, Vol. 76, No. 1 (Jan., 1967), pp. 129-130
Published by: Duke University Press on behalf of Philosophical Review
Stable URL: http://www.jstor.org/stable/2182977 .
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BOOK REVIEWS
sort, plus being acquainted with him. To complete the equation one
would have to be able to say what things are the "right" things.
Dr. Chatterjee has a good deal to say about this.
The principal defect of this book is that too much is discussed too
hurriedly. Multitudes of philosophers are presented, briefly discussed,
and politely ignored, at the rate of one philosopher every four pages.
The treatment of controversial ideas and arguments is often even less
protracted. In spite of its defects, however, the book is of some value.
Dr. Chatterjee is a lucid writer, and her conception of our knowledge
of other selves is provocative. Students and laymen might well find
the rapid pace of the book stimulating and the wide range of its
content informative. In this respect, Dr. Chatterjee may rival Will
Durant.
KEITH LEHRER
University of Rochester
LEGALISM. By JUDITH N. SHKLAR. Cambridge, Harvard University
Press, i964.
PP.
246, ix. $5.95.
Legalism is "the political ideology of lawyers" (pp.
5,
8). Its social
outlook is "epitomized in courts" (p. 2); according to legalism all
political conflict should be thought of in terms of a lawsuit (p. I36).
Since its main thrust is toward the virtues of orderliness (p. I7), it is
essentially conservative in outlook, "a defense of the status quo" (p. I 35) .
Legalists are opposed to the politics of bargaining no less than to
politics by other means (p. I33), to anarchism as well as communism
(p. 2o). Right conduct, if legalism is to be believed, consists in "follow-
ing rules"
(pp.
87, I04), rules which are "there," every bit as much
as Plato's Forms were "there" (p. io). It is indifferent whether these
rules are arbitrary positive laws or eternal rational norms; hence both
the legal positivist (e.g., H. L. A. Hart) and the natural lawyer (e.g.,
Lon L. Fuller) are legalists (pp. i2, I23). Above all, legalism adopts
"the policy of justice" (pp. 8, I3, I9, I09 f.); indeed, legalism "is
justice" (p. I20). It would elevate justice, although it is only "a policy
among other policies," into the sole political virtue no matter what the
consequences (p. i22). The result is a disaster: every political fact and
institution is distorted, every actual social problem aggravated,
every workable remedy discredited.
Mrs. Shklar brings considerable scholarship and style to her task,
which is "not only to understand legalism but also to suggest other
ways of thinking about law" (p. 3) and "to stir up controversy by a
clear confrontation of incompatible positions" (p. viii). On occasion,
129
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BOOK REVIEWS
she does this by judging without first explaining, presumably because
the reader is supposed to have a textbook acquaintance with the
subject-for example, Kelsen's positivistic theory of law (pp. 40-41).
Here and there she explicitly asserts theses negatived by legalism: law
and morals (to which she devotes Part I of the book) are not isolated
"blocks" but are on a "continuum" (pp. 3, 62); there is and will
continue to be a "diversity" or "plurality" of values in our society,
despite the presumption of legalists to the contrary (pp. 5, 63, 86);
politics (which is discussed in Part II) is an activity not morally or
intellectually inferior to the work of the law courts (p. I43). But on
behalf of these alternatives she expends very little effort to explain and
justify them to the reader. How much worthwhile controversy Mrs.
Shklar is able to stir up depends on whether her readers are willing to
think out her own alternatives more assiduously than she has. Her
criticisms and her own viewpoint-"barebones liberalism" (p. 5)-she
admits are not those of a lawyer but of an "outsider" (p. vii). I think
it will be agreed that they are not, even on the most latitudinarian
construction, those of a philosopher, either.
Legalism, presumably because it is an "ideology," exists in a limbo
inaccessible to philosophical criticism. And the same immunity
carries over to Mrs. Shklar's account. Legalism has no standard
literary sources or acknowledged spokesmen; at least, Mrs. Shklar
cites none. Professors Fuller and Hart, who are occasionally used as
examples of legalist thought, are likely to feel they have been mis-
understood and caricatured; but then nothing essential to legalism (or
to Mrs. Shklar's analysis) hinges on whether such writers have been
correctly understood. Nor is legalism a theory. For all its deplorable
consequences, it apparently depends on no articulate presuppositions
or premises, and consists of no theses or hypotheses. The passages
quoted or paraphrased above, which fairly indicate what the book
says legalism is, show that it is no theory. Legalists, being ideologues,
are not at the mercy of logical analysis. In these respects, then, legalism
is like "essentialism," "historicism," "realism," "liberalism," "con-
servatism," "verbalism," "moralismin," and "one-worldism," all of
which are used by Mrs. Shklar to elucidate legalism itself. This may
be only an incident of her style, but the skeptical reader may be
excused if he wonders whether legalism is to be taken any differently
or more seriously than these other -isms-every one a surrogate for
thought and an obstacle to clarity.
H. A. BEDAU
Tufts University
130
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