The Crisis of the Western Legal Tradition

That the Western legal tradition, like Western civilization as a whole, is undergoing in the twentieth century a crisis greater than it has ever known before is not something that can be proved scientifically.

The crisis is being generated both from within Western experience and from without. From within, social and economic and political transformations of unprecedented magnitude have put a tremendous strain upon traditional legal institutions, legal values, and legal concepts in virtually all countries of the West. Yet in the past there have been periods of revolutionary upheaval which have also threatened to destroy basic elements of the Western legal tradition, and that tradition has nevertheless survived. What is new today is the challenge to the legal tradition as a whole, and not merely to particular elements or aspects of it; and this is manifested above all in the confrontation with nonWestern civilizations and non-Western philosophies. In the past, Western Man has confidently carried his law with him throughout the world. The world today, however, is suspicious-more suspicious than ever before-of Western "legalism." Eastern and Southern Man offer other alternatives. The West itself has come to doubt the universal valid­

-33-

ity of its traditional vision of law, especially its validity for non_Western cultures. Law that used to seem "natural" seems only "Western." And many are saying that it is obsolete even for the West.

The crisis is sometimes viewed in somewhat less apocalyptic terms as a challenge not to fundamental principles of legality as understood in the West for the past nine centuries but rather to the application of such principles to new circumstances of the twentieth century, or at most as a challenge to certain "liberal" or "bourgeois" variants of legality that have prevailed since the eighteenth century, or possibly since the seventeenth or even the sixteenth century. It is said that in all countries of the West, the law is moving away from the individualistic assumptions that accompanied the change from a "medieval" to a "modern" political, economic, and social order, and toward one or another kind of collectivism. From this point of view, the crisis of law in the twentieth century is comparable in scope to earlier crises in the Western legal tradition, such as that which took place after the French Revolution of 1789 or after the English Revolution of 1640, or after the German Revolution of 1517. Just as those revolutions, it is said, inaugurated a new era in which bourgeois or "capitalist" law replaced "feudal" law, so the Russian Revolution of 1917 inaugurated a new era in which "socialist" law is replacing bourgeois or capitalist law.

It is surely true that in the twentieth century virtually all nations of the West have experienced the introduction of pervasive governmental controls over most aspects of economic life. Many countries have nationalized industrial production and have introduced integrated state economic planning. Other countries have adopted some form of state capitalism in which immediate responsibility for production, distribution, and investment is in the hands of large-scale corporate enterprise, subject, however, to direct and indirect controls by state agencies. Lenin's statement of 1921 concerning the Soviet economy is increasingly applicable to other economies as well: "with us, what pertains to the economy is a matter of public law, not private law." In the United States, for example, fields of administrative law such as taxation, labormanagement relations, securities regulation, public housing, social security, environmental protection, and a dozen others, which hardly existed before the Great Depression of the early 1930s, have now achieved predominance.

In addition, what was previously conceived to be private law has also been transformed in the twentieth century by the radical centralization and bureaucratization of economic life, of which socialism in one form or another (including state-controlled capitalism) is an aspect or a consequence. Contract law, for example, which has traditionally been viewed in all Western legal systems as a body of rules for giving effect to voluntary agreements according to the intent of the parties, within limits set

34-

by broad public policies, has in the twentieth century struggled to adapt itself to a wholly new economic situation in which the detailed terms of the most important kinds of contracts are specifically required by legislation or else set forth in standard forms presented by large_scale business organizations on a take_it_or_leave_it basis. Similarly, in property law, governmental and large_scale corporate interests have intervened to remove from most private owners a very large share of their rights of possession, use, and disposition __ that is, of what would in the past have been considered their rights of ownership__________________________ while at the same time imposing upon them obligations that

are more to be explained in terms of administrative law than in terms of civil law. Throughout the West, corporate, commercial, and industrial property, including housing, is increasingly subject to administrative regulation, while the individual owner may hardly plant a tree or build an extension on his kitchen without governmental permission.

Similarly, tort law, which has traditionally been conceived primarily as a body of rules for compensating losses caused by intentional or negligent misconduct, has been transformed by the rapid spread of liability insurance for harm caused by innocent acts incidental to various forms of economic activity -- so-called absolute liability, the grounds for which, and therefore the limits of which, remain largely unclarified.

Fundamental changes have taken place throughout the West not only in what has traditionally been called public law and private law but also in what might be called social law, including family law as well as laws affecting race relations, class relations, and relations of the sexes and of the generations.

Marriage and divorce have increasingly become largely a consensual matter, while parental power over children has been

-35-

Substantially reduced. As the family has been left more and more to its own devices, social relations of race and class and sex have been more and more subjected to legal restraint, in order to prevent exploitation. These changes have also been associated partly with the socialist movement, although they are only indirectly related to governmental control of the economy.

Criminal law, also, has undergone drastic changes in virtually all countries of the West as a result of the integration and collectivization of the economy, urbanization, mass production, industrialization, and related phenomena. New types of crime have emerged: large-scale theft of corporate property, whether owned by the state or by large corporate enterprise; "white-collar" crime, including tax fraud, embezzlement, and antitrust violations; drug traffic and related urban street crime; and at the other end of the spectrum, political and ideological crimes, which have come to predominate over the "traditional" crimes of murder, rape, burglary, robbery, arson. Critical changes in the nature and incidence of crime have been accompanied by changes of comparable importance in theories of crime and punishment and in practices of law enforcement.

These and other changes in the legal systems of the countries of the West may be called revolutionary not only in the sense that they are fundamental changes that have occurred relatively rapidly but also in the sense that they are a response to a revolutionary political, economic, and social upheaval. In Russia and some other countries, that upheaval has taken the form of a classical type of revolution, in which one kind of political-economic-social order and belief system was violently replaced by another. In other countries the changes have taken the milder form of integration of national life, through technology and communications, through increasing organization into larger units, and through expanding governmental controls. Everywhere, however, this has been much more than a technological revolution; it has also been a political and ideological revolution.

The history of Western law is at a turning point as sharp and as crucial as that which was marked by the French Revolution of 1789, the English Revolution of 1640, and the German Revolution of 1517.

-36- freedom in the interest of society, expansion of liability for harm caused by entrepreneurial activity, a utilitarian rather than a moral attitude toward crime, and many other new basic postulates.These radical changes constitute a severe challenge to traditional Western legal institutions, procedures, values, concepts, rules, and ways of thought. They threaten the objectivity of law, since they make the state an invisible party to most legal proceedings between individuals or corporate entities __ the same state that enacted the applicable law and appointed the court. This invisible pressure is increased in Communist countries by virtue of strong central controls not only over economic life, but also over political, cultural, and ideological life; and in nonCommunist countries, too, such

central controls in the noneconomic sphere have increased, although they have usually been more in the hands of large bureaucratic organizations than of the state as such.To the extent that the present crisis is comparable to revolutionary crises that have struck the Western legal tradition in the past, the resources of that whole tradition may be summoned to overcome it, as those resources have been summoned to overcome previous revolutionary crises. However, the present crisis goes deeper. It is a crisis not only of individualism as it has developed since the eighteenth century, or of liberalism as it has developed since the seventeenth century, or of secularism as it has developed since the sixteenth century; it is a crisis also of the whole tradition as it has existed since the late eleventh century.Only four the first four of the ten basic characteristics of the Western legal tradition remain as basic

characteristics of law in the West.

1. Law is still relatively autonomous, in the sense that it remains differentiated from politics and religion as well as from other types of social institutions and other scholarly disciplines.

2. It is still entrusted to the cultivation of professional legal specialists, legislators, judges, lawyers, and legal scholars.

3. Legal training centers still flourish where legal institutions are conceptualized and to a certain extent systematized.

4. Such legal learning still constitutes a meta-law by which the legal institutions and rules are evaluated and explained.

It is important to stress the survival of these four characteristics of law, since in Russia during the first years of the revolution and again in the early 1930s strong attacks were made -- as had been the case in the previous great revolutions -- upon the autonomy of law, its professional character, and its character as a learned discipline and a science. In other countries of the West, as well, it was proposed from time to time in the 1920s and 1930s, partly under Marxist -- Leninist influence, that law and lawyers should be eliminated, or at least greatly restricted in importance, as unnecessary and harmful to society. In the 1960s and early

-37- 1970s the Chinese Revolution took up this cry with great seriousness: all the law schools were closed and almost all lawyers disappeared. Only since the late 1930s in the Soviet Union and the late 1970s in the Chinese People's Republic has "legal nihilism" been denounced.

All of the other six characteristics attributed to the Western legal tradition have been severely weakened in the latter part of the twentieth century, especially in the United States.

5. Law in the twentieth century, both in theory and in practice, has been treated less and less as a coherent whole, a body, a corpus juris, and more and more as a hodgepodge, a fragmented mass of ad hoc decisions and conflicting rules, united only by common "techniques." The old meta­law has broken down and been replaced by a kind of cynicism. Nineteenth­century categorizations by fields of law are increasingly viewed as obsolete. Still older structural elements of the law -- such as, in England and America, the forms of action by which the common law was once integrated and which Maitland in 1906 said still "rule us from the grave" -- are almost wholly forgotten. The sixteenth­century division of all law into public law and private law has had to yield to what Roscoe Pound in the mid-1930s called "the new feudalism." Yet it is a feudalism lacking the essential concept of a hierarchy of the sources of law by which a plurality of jurisdictions may be accommodated and conflicting legal rules may be harmonized. In the absence of new theories that would give order and consistency to the legal structure, a primitive pragmatism is invoked to justify individual rules and decisions.

6. The belief in the growth of law, its ongoing character over generations and centuries, has also been substantially weakened. The notion is widely held that the apparent development of law -- its apparent growth through reinterpretation of the past, whether the past is represented by precedent or by codification -­is only ideological. The law is presented as having no history of its own, and the history which it proclaims to present is treated as, at best, chronology, and at worst, mere illusion.

7. The changes which have taken place in law in the past, as well as the changes which are taking place in the present, are viewed not as responses to the internal logic of legal growth, and not as resolutions of the tensions between legal science and legal practice, but rather as responses to the pressure of outside forces.

8. The view that law transcends politics -- the view that at any given moment, or at least in its historical development, law is distinct from the state -- seems to have yielded increasingly to the view that law is at all times basically an instrument of the state, that is, a means of effectuating the will of those who exercise political authority.

9. The source of the supremacy of law in the plurality of legal jurisdictions and legal systems within the same legal order is threatened in the twentieth century by the tendency within each country to swallow

-38

up all the diverse jurisdictions and systems in a single central program of legislation and administrative regulation. The churches have long since ceased to constitute an effective legal counterweight to the secular authorities. The custom of mercantile and other autonomous communities or trades within the economic and social order has been overridden by legislative and administrative controls. International law has enlarged its theoretical claim to override national law, but in practice national law has either expressly incorporated international law or else has rendered it ineffectual as a recourse for individual citizens. In federal systems such as that of the United States, the opportunity to escape from one set of courts to another has radically diminished. Blackstone's concept of two centuries ago that we live under a considerable number of different legal systems has hardly any counterpart in contemporary legal thought.

10. The belief that the Western legal tradition transcends revolution, that it precedes and survives the great total upheavals that have periodically engulfed the nations of the West, is challenged by the opposing belief that the law is wholly subordinate to revolution. The overthrow of one set of political institutions and its replacement by another leads to a wholly new law. Even if the old forms are kept, they are filled, it is said, with new content, they serve new purposes, and they are not to be identified with the past.

The crisis of the Western legal tradition is not merely a crisis in legal philosophy but also a crisis in law itself. Legal philosophers have always debated, and presumably always will debate, whether law is founded in reason and morality or whether it is only the will of the political ruler. It is not necessary to resolve that debate in order to conclude that as a matter of historical fact the legal systems of all the nations that are heirs to the Western legal tradition have been rooted in certain beliefs or postulates: that is, the legal systems themselves have presupposed the validity of those beliefs. Today those beliefs or postulates -- such as the structural integrity of law, its ongoingness, its religious roots, its transcendent qualities -- are rapidly disappearing, not only from the minds of philosophers, not only from the minds of lawmakers, judges, lawyers, law teachers, and other members of the legal profession, but from the consciousness of the vast majority of citizens, the people as a whole; and more than that, they are disappearing from the law itself. The law is becoming more fragmented, more subjective, geared more to expediency and less to morality, concerned more with immediate consequences and less with consistency or continuity. Thus the historical soil of the Western legal tradition is being washed away in the twentieth century, and the tradition itself is threatened with collapse.

The breakdown of the Western legal tradition springs only in part from the socialist revolutions that were inaugurated in Russia in Oc- -39- tober 1917 and that have gradually spread throughout the West (and throughout other parts of the world as well), albeit often in relatively mild forms. It springs only in part from massive state intervention in the economy of the nation (the welfare state), and only in part from the massive

bureaucratization of social and economic life through huge centralized corporate entities (the corporate state). It springs much more from the crisis of Western civilization itself, commencing in 1914 with the outbreak of World War I. This was more than an economic and technological revolution, more even than a political revolution. If it had not been, Western society would be able to adapt its legal institutions to meet the new demands placed upon them, as it has done in revolutionary situations in the past. Western society would be able to accommodate socialism_______________________________________________________ of whatever

variety___ within its legal tradition. But the disintegration of the very foundations of that tradition

cannot be accommodated; and the greatest challenge to those foundations is the massive loss of confidence in the West itself, as a civilization, a community, and in the legal tradition which for nine centuries has helped to sustain it.

Almost all the nations of the West are threatened today by a cynicism about law, leading to a contempt for law, on the part of all classes of the population. The cities have become increasingly unsafe. The welfare system has almost broken down under unenforceable regulations. There is wholesale violation of the tax laws by the rich and the poor and those in between. There is hardly a profession that is not caught up in evasion of one or another form of governmental regulation. And the government itself, from bottom to top, is caught up in illegalities. But that is not the main point. The main point is that the only ones who seem to be conscience-stricken over this matter are those few whose crimes have been exposed.

Contempt for law and cynicism about law have been stimulated by the contemporary revolt against what is sometimes called legal formalism, which emphasizes the uniform application of general rules as the central element in legal reasoning and in the idea of justice. According to Roberto M. Unger, with the development of the welfare state, on the one hand, and of the corporate state, on the other, formalism is yielding to an emphasis on public policy both in legal reasoning and in the idea of justice. ³² Policy- oriented legal reasoning, Unger writes, is characterized by emphasis upon broad standards of fairness and of social responsibility. He connects this shift in "post-liberal" Western legal thought with a change in beliefs concerning language. "Language is no longer credited with the fixity of categories and the transparent representation of the world that would make formalism plausible in legal reasoning or in ideas about justice," he writes. ³³ Thus described, the revolt against legal formalism seems both inevitable and benign. Yet what is to prevent discretionary justice from being an instrument of repression and even a

-40-

pretext for barbarism and brutality, as it became in Nazi Germany? Unger argues that this is to be prevented by the development of a strong sense of community within the various groups that comprise a society. Unfortunately, however, the development of such group pluralism is itself frustrated by some of the same considerations that underlie the attack on legal formalism. Most communities o f' more than face_to_face size can hardly survive for long, much less interact with one another, without elaborate systems of rules, whether customary or enacted. To say this is not to deny that in the late nineteenth and early twentieth centuries, in many countries of the West, there was an excessive concern with logical consistency in the law, which still exists in some quarters; the reaction against it, however, loses its justification when it becomes an attack on rules per se, and on the Western tra dition of legality which strikes a balance among rule, precedent, policy, and equity all four.

The attack on any one of these four factors tends to diminish the others. In the name of antiformalism, "public policy" has come dangerously close to meaning the will of those who are currently in control: "social justice" and "substantive rationality" have become identified with pragmatism; "fairness" has lost its historical and philosophical roots and is blown about by every wind of fashionable doctrine. The language of law is viewed not only as necessarily complex, ambiguous, and rhetorical (which it is) but also wholly contingent, contemporary, and arbitrary (which it is not). These are harbingers not only of a "postliberal" age but also of a "post-Western" age.

Cynicism about the law, and lawlessness, will not be overcome by adhering to a so-called realism which denies the autonomy, the integrity, and the ongoingness of our legal tradition. In the words of Edmund Burke, those who do not look backward to their ancestry will not look forward to their posterity.

This certainly does not mean that the study of the past will save society. Society moves inevitably into the future. But it does so by walking backwards, so to speak, with its eyes on the past. Oliver Cromwell said, "Man never reaches so high an estate as when he knows not whither he is going." He understood the revolutionary significance of respect for tradition in a time of crisis.