Academic journal article The Yale Law Journal

Autonomy, Interdependence, and Responsibility

Academic journal article The Yale Law Journal

Autonomy, Interdependence, and Responsibility

Article excerpt

No man is an Iland, intire of it selfe; every man is a peece of the

Continent, a part of the maine . . . .(1)

If there isa cycle in jurisprudential fashions, then, after an era of Positivism, with intermittent bursts of Natural Law, it had to be time for Historicism. Historicists view law not as the product of conscious choice by a society's members, but as the outcome of a process of growth largely shaped and constrained by historical forces. As each group as its own language or dialect, each has its own unique law. Ubi societas, ibi jus. The law of each group should be allowed to grow, at its own pace and according to its own preordained genetic program, until it reaches the final stage of whatever it is supposed to be.(2) As for jurists, legislators, and erstwhile social do-gooders, Historicism has curt advice: look but don't touch.

Like other theories, Historicism has authentic insights that are indispensable to understanding law and society. In particular, by emphasizing the distinctiveness of a particular group's legal system, Historicism can reveal differences in perspective and behavior that other approaches might neglect. Weyrauch and Bell, in this fascinating and important study, have used Historicist jurisprudence to its best advantage. In examining the legal system of what they call an "autonomous group," they expose a dimension of law that Positivism handles awkwardly at best. The type of subject matter Weyrauch and Bell have selected is important and relevant. Studies of this type, far from being marginal or exotic "boutique" exercises, are central to understanding the phenomenon of law and to addressing certain urgent policy problems. I admire much of the design and execution of this article and, in particular, the moral argument for a tolerant, pluralisti democracy that animates it.

Like so many other theories, however, Historicism can overreach its insights by attempting to explain too much. Ultimately, I believe, Weyrauch and Bell collide with the inherent intellectual boundaries of the Historicist approach to law.

To those who cling to a belief in a unitary integrating society, the phenomenon of an apparently autonomous legal and political system--such as that of the Roma, the Amish, or Hasidic sects--seems like an exotic survival, or, to those prone to paranoia, like a quiescent virus within the body plitic. In fact, the phenomenon is not at all rare. Legal anthropologists, preeminently Leopold Pospisil of Yale, have demonstrated the prevalence, within the apparently unitary "nation-state," of groups with effective political and legal organizations that are independent of and substantively different from those of the state.(3) Pospisil has shown that these groups need not be proto-states nor aspire to a territorial control-sphere. Moreover, as is the case with gangs, they may work "against" the host society, even be parasitic on it.(4) While the totalitarian state seeks to delegitimize and supprerss all lesser groups, the liberal democratic state, with its commitment to maintaining a private sphere, permits ongoing consociation. Consociation, in turn, leads to the development of smaller, exclusive groups within the political boundaries of the state.

Weyrauch and Bell examine the enduring legal system of the Roma, popularly known as Gypsies. Specifically, they focus upon the Vlax Roma, the largest identifiable group of Gypsies in the United States and the subject of most of the literature on the Roma. The Romani system operates relatively invisibly to most members of the host society, but effectively shapes, holds, and polices the exclusive loyalties of the Roma, while ensuring both the group's collective survival and the transmission of its values from generation to generation.(5) Weyrauch and Bell synthesize the available body of social scientific data and supplement in with the more recent observations of Romani scholars in order to derive a picture of what they call "autonomous lawmaking" among the Roma. …

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