The Oldest Social Science? Configurations of Law and Modernity

By W. T. Murphy | Go to book overview

7
Legal Individualism and the Ethical Space

Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.1

The previous chapter addressed the problem of the idea of social integration through law and government and suggested general frameworks through which one could grasp how law still played a role in relation to the 'total social system' but not the overarching, encompassing role which had driven visions of society and social integration in the past and which some -- especially lawyers and political theorists -- continue to attribute to law in our world.

This Chapter sketches the basic features and domains of current and future legal operations -- what is going on 'inside' the modern legal system. For the purposes of this discussion, we can perhaps assume that the legal system is configured in part by a weight of traditional assumptions about the role, purpose, and nature of law, some of which are directly in contradiction with the displacement of law discussed above. From the viewpoint of the legal system, that is, an assumption of the durability of its encompassing role can survive when from a different, 'external' viewpoint this is not the case. The consequences of such perspectivism and the fluidity which this generates for the cognitive dissonance which then arises between law and other social systems are also

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1
Tocqueville, Democracy in America, 290. Cf. Jack and Jack, Moral Vision and Professional Decisions.

-186-

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