The Essential Concept of Law

Vol. 14 No. 6 (June 2004), pp.428-434

THE ESSENTIAL CONCEPT OF LAW, by James T. McHugh. New York: Peter Lang Publishing, 2002. 176 pp. Paper $22.95 / €24.20 /£16.00 ISBN: 0-8204-6180-6.

Reviewed by Verity Smith, Committee on Degrees in Social Studies, Harvard University, and Department of Political Science, University of California, San Diego. Email: vsmith@latte.harvard.edu.

THE ESSENTIAL CONCEPT OF LAW is Volume 33 in the “Teaching Texts in Law and Politics” series published by Peter Lang. While previous volumes have considered diverse issues relevant to law and politics, this book takes that mutually constitutive relationship itself as its topic. Its author, Professor James T. McHugh, is affiliated with both a Political Science Department and a Legal Studies program, and both of those disciplinary orientations are reflected in the book’s aims and approaches. The book provides an engaging introduction to the very concept of law itself through an ambitious synthesis of insights from scholarship in law and society, comparative politics, legal philosophy, and social theory. It is both conceptual and comparative in approach, aiming to engage “in a study in contrasts, beginning with very broad categorizations and narrowing toward more parochial, yet fundamental legal concepts” (p.6).

The book’s emphasis on the disparate institutional incarnations of legal concepts could make it especially useful as an introductory text for students of comparative politics or law and society, with one caveat. The book covers so much ground in such a short space that most courses are likely to focus on only some of its themes. Students may also require more concrete and in-depth analyses than those presented here—as the book is first and foremost a conceptual analysis, it might be a bit abstract for those students without a penchant for legal, political, or social theory. This is mitigated by the use of examples, but still, so much ground is covered conceptually that there simply isn’t space for the in-depth case studies that might render it better accessible to more empirically minded students. It appears, however, that the author foresaw this issue, as he published a book organized around case studies in the same series, in the same year (COMPARATIVE CONSTITUTIONAL TRADITIONS). Perhaps the two books were originally intended as companion volumes, which would account for an otherwise puzzling sentence early in THE ESSENTIAL CONCEPT OF LAW: “This book explores ideas that form the basis for all legal understanding, while the second part applies those ideas to actual constitutions of a variety of countries” (p.6). (There is no second part). In any case, THE ESSENTIAL CONCEPT OF LAW would be best taught in combination with a more empirical companion text or texts. Fortunately, the book is designed in a manner that facilitates piecemeal use. It is divided into thirteen concise chapters, almost all of which could stand alone as general introductory essays to what are in themselves very large and wide-ranging [*429] topic areas. Each chapter might thus provide an extremely helpful overview or theoretical framework for more case-based materials or otherwise concrete investigations of a given aspect of the law.

Chapter 1, “The Universal Idea of Law,” begins by emphasizing two of the recurring themes of the text: first, that law is an idea – one that is “derived from, and directed toward, the political community,” and second, that law thus belongs to all members, rather than to legal technocrats (p.2). McHugh stresses that “In a very real sense, law is not created by legal practitioners; it is created by a political people, within a political environment, for a purpose that is, definitively, political” (p.2). The mistaken notion that law is non-normative, or a kind of objective science, produces an image in which “law is the exclusive realm of the rigorously trained expert practitioner,” rather than belonging to all members of society (p.4). The author urges readers not to confuse legal “neutrality” (itself a value-laden category) with legal “objectivity” (which implies non-normativity). To understand law (and take it back from the technocrats), we must understand its “necessarily subjective foundation” (p.4).

This foundation is given by and through a people’s constitution, which reflects the beliefs and values of sovereign authority, and thus provides “a philosophical foundation for an entire political community” (p.4). Subsequent chapters thus turn to the historical and cultural sources of various constitutional traditions. Not only do constitutions reflect sovereignty, but “[s]overeign status ultimately can be demonstrated only through the production and enforcement of a legitimate constitutional tradition” (p.6). The relationship thus goes both ways, which is important in that a constitutional tradition provides resources for contesting abuses of sovereign authority, even as it can be used as a tool of sovereign control. This constitutive tension between sovereignty and constitutionalism is a continued focus of the book, and provides one of its most important insights.

Chapters Two and Three divide the legal world into Western and Eastern traditions. These chapters draw on scholarship in comparative religion and cultural anthropology to outline key elements of each heritage, such as conceptual divergences with respect to time and power (p.10). There is also continuity, in that law is an expression of political power in each tradition. But Eastern cultures treat power (and thus law) as a shared, or community phenomenon, rather than something to be wielded or exercised over other people, as in the Western hierarchical approach. These broad conceptual distinctions are then deployed to make sense of the more particular, substantive ideals of each tradition.

Chapter Two divides Western law into two broad traditions: natural law and positive law, describing the philosophical and political origins, essential principles, and historical development of each tradition. Chapter Three explicates the holistic, relational aspects of the Eastern approach to law by articulating the relationship of law to the philosophical traditions of Confucianism, Legalism, Taoism, and Hinduism. An especially interesting claim from the standpoint of [*430] interdisciplinary legal studies is the suggestion that the Western tendency to compartmentalize areas of experience often results in a cordoning off of law from other subjects and practices, while the holism of Eastern approaches means that “religion, politics, law, and philosophy do not appear to exist within exclusive categories but seem almost interchangeably, and intimately, interrelated” (p.10). This suggestion invites a reading of the book itself as an attempt to combine the insights of these traditions by illuminating connections between categories of scholarship (while retaining the categories even if only as analytic distinctions).

Chapter Four, “Ideology and Law,” returns to the theme of the non-objectivity of law. Here law is again treated as an idea – or, more precisely, as ideological expression. The chapter explores the medieval European economic antecedents of modern Western legal norms and values, and identifies the material/economic bases of the key principles of the ideological tradition of liberalism. The key claim in this chapter is that “modern Western law is as ideologically driven as any other political institution” (p.35), especially insofar that law has itself become “the most important means for transmitting the evolving ideology of liberal democracy” (p.42). The chapter also contains provocative sections on Marxism and law, classic conservatism and law, and feminism and law. This analysis is a welcome corrective to the tendency to call only some (non-liberal) traditions “ideological.” But it also begs the question of how to separate philosophical expressions of legal ideals from ideological ones. The chapter describes the emergence of modern ideologies as consequent to the rise of “modern society.” Ideologies provide conceptual justifications for economic and institutional arrangements. But if legal ideals also provide normative resources for contesting institutionalized authority, does that imply that law also has a non-ideological component? Or does it mean simply that legal forms of critique and contestation are always immanent, or internal to a given ideological tradition?

Chapters Five and Six provide a very helpful overview of the key differences between common law and civil law systems. Differences between the systems are important not only for comparisons of institutional structures and legal rules, but also in terms of “the assumptions about law and human nature that can be derived from them” (p.53). Of particular importance are divergences in the primary sources of law (precedent vs. code based), as well as in types of legal education prioritized or required in each system (experiential vs. formal and specialized). There is also an illuminating discussion of the bases of the popular understanding of common law systems as “accusatorial” or “contest” based, and civil law ones as “inquisitorial” or “truth” based (p.75). Chapters Five and Six also include engaging accounts of the historical circumstances and political and cultural goals that led to the development of each type of system, as well as examples from a variety of national contexts.

Chapter Seven provides a fascinating comparison of Western religious and secular law, with a particular focus on instances in which secular legal traditions contain structural parallels to religious traditions. The [*431] chapter contains sections on Catholicism and the canon law, Judaism and the Talmud, and Islam and Shari’a. But the most fundamental comparison is not between various religious legal traditions, but between religious law and secular law. Especially interesting are the continuities and parallels that underlie differences. For example, just as positive law “emphasizes structure and leaves content to the will of the sovereign,” so “[l]egal content is left to God and religious authority, but the structure for expressing it remains consistent, even though it is inspired by the same theological considerations” (p.94). The author’s commitment to the broadly comparative study of legal traditions seems quite radical when juxtaposed to his earlier description of the Western tendency to cordon areas of experience off from one another. The chapter’s comparison of religious and secular heritages of law in the Western tradition highlights the influence of religious practices and ideals on secular ones (including law), thus shedding light on less well understood aspects of the Western legal tradition. It also provides another example of the text’s overarching emphasis on the value and belief-laden foundations of all legal traditions.

Chapter Eight provides a quick exploration of tribal law, presented as a model providing a stark contrast to modern legal traditions, especially Western ones. Patterns of tribal legal relationships identified include the importance of kinship ties in dividing responsibility and determining leadership, the important role of consensus-based decision making, a reliance on customary law, and an emphasis on control (for distributive purposes) rather than ownership of property. Readers might object to the developmental hierarchy implied in distinguishing even contemporary tribal law as distinct from “modern” legal traditions, but this is arguably not as much an assumption of this particular text, but a more general and pervasive legacy of nineteenth century social theory and anthropology (which has had a remarkably long half-life). Indeed, the author’s stated objective in presenting this contrast is as a basis of evaluation of the weaknesses as much as the strengths of contemporary Western legal norms. He is careful to note that a tribe is not an ethnic or racial term, but an economic, political, and legal term. He also points to the potential simultaneity of identification with both a tribe and a broader “society.” As part of a wide-ranging, introductory text, the chapter must distill an enormously complex literature into a small space, and at this it succeeds to a remarkable degree. But the chapter might be profitably paired with materials that consider the interaction of colonial legal institutions with indigenous tribal law, so as to highlight the colonial context of the very development of a binary classificatory system that contrasts “modern” systems with alternatives that are variously [*432] understood as precursors, pre-modern, primitive, and so on.

Chapter Nine returns to questions of legal institutional differences. The chapter succinctly compares unitary, federal, and confederal systems as competing forms of the institutionalization (and location) of sovereign authority. The major conceptual distinction in this chapter is between single sovereignty and shared sovereignty (here sovereignty is understood as the final point of decision or authority). The advantages and drawbacks of unitary forms of government are usefully contrasted with those of federal and confederal systems by reference to particular cases (including Great Britain, the United States, and the European Union, respectively), with special attention to the significance of these differences with respect to expressions of national and constitutional identity.

Chapter Ten, “Crime, Injury, Punishment and the State,” deals broadly with the concepts of “the rule of law” and the state. The rule of law is treated primarily as an expression of the liberal democratic concept of the limited or self-constrained state. The constraint provided by rule of law runs two ways. First, such a state should protect fundamental values like liberty and individualism that may sometimes run afoul of the sovereign will of the electoral majority. Second, the rule of law is also meant to constrain an otherwise sovereign government so that it “interact[s] with society according to a commonly applicable set of regulations and legal principles” (p.115). The chapter briefly considers alternate images of the state as unlimited patriarch, and as a mediator or “neutral arbiter” for society. But McHugh concludes that the liberal democratic picture of a state limited by the rule of law has become the most persuasive description, at least in theory. The heart of the chapter is thus spent explicating the role of the state in upholding the rule of law, as well as the ways in which the concept of rule of law frames the various legal roles and responsibilities of the state in both the public and private (civil) legal arenas. Special attention is given to various justifications for the state’s power to punish – whether liberal, utilitarian, pragmatic, or otherwise. Interestingly, though, the chapter’s discussion of penology, particularly the abbreviated discussion of capital punishment, raises questions about the adequacy of the image of the limited state advanced earlier in the chapter. Here it would have been helpful if the chapter had more explicitly engaged social theoretic accounts (such as those of Weber, Durkheim, and Foucault) of the state, particularly with respect to the relationship of sovereignty to punishment. But still, the chapter already covers a tremendous amount of ground in a very short space.

Chapter Eleven is a (very) short examination of the elements of contract, and the modern refinement of this notion via the liberal conception of property. Because contract is arguably “the most basic of all legal institutions, throughout history,” the author notes that at least a preliminary understanding of contract and property is critical to the study of comparative law (p.125). The chapter explains common classifications of contracts, such as express, implied, “quasi-contracts,” bilateral and unilateral contracts. It explicates the four key elements usually thought necessary for a contract to exist: agreement (including offer and acceptance), consideration (including promise and performance), capacity (including standing, competence, relevance), and legality. Also reviewed are basic legal categories of property (real property, personal property, liquid assets, potential assets, and so on). This chapter is a bit compressed, but impressively clear in its presentation of these fundamental categories of sociolegal analysis. [*433]

Chapter Twelve, “Rights and Liberties,” emphasizes the necessary centrality of the concept of rights in any study of comparative law. But, the author warns, the very ubiquity of the concept may have led to “an ‘inflationary’ trend in the use of a language of rights” (p.134), characterized by confusion and misuse. After distinguishing rights from liberties, the chapter focuses on the two major types of rights: civil rights and human rights. It also includes a critical account of the idea of collective or group rights, holding that references to such rights are “often misidentifications of individual rights and liberties” (p.143). The chapter stresses both the ontological premises to which all claims to right are linked, and the necessarily political process by which rights are established, claimed, and recognized by sovereign authority. Civil rights may be understood as either inalienable or as consensual, but in either case, they are “grounded upon an ontological definition of citizenship and the liberal principle of ‘property,’” while human rights are “grounded upon an ontological analysis of the human condition” (p.140). Whether this ontological analysis is itself a political construction is a question that the author does not explicitly address. The chapter suggests, however, that human rights are universally based on some version of human autonomy, though the conditions and tools understood as necessary to arrive at autonomy vary according to philosophical tradition and cultural context. The chapter acknowledges the natural law roots of human rights but insists that “it also can be tied to the fundamental assumptions and orientations of all philosophical traditions, both Eastern and Western” (p.141).

This remaining tension - between the (potential) universality of the concept, and the variability in its adaptation and application across cases – is one that underlies the project of this textbook more generally. It is hard to say what the essential concept of law might be, given the variability of legal forms, and their cultural and political origins. However, this is a tension that lies at the heart of the very project of comparison. Extreme variability seems to undercut the notion of universality or even generalizability. Some common element must be assumed for concepts or institutions to be understood as comparable at all, rather than radically contingent or particular. At the same time, as the author notes, concepts and categories that are not devised to reflect the diversity of actual cases risk charges of legal imperialism or arbitrariness. Weber devised the analytic category of “ideal types” to address this problem, and while the text does not explicitly invoke Weber, there are affinities. Ultimately, though, THE ESSENTIAL CONCEPT OF LAW deals with this constitutive paradox by putting the relationship between law and politics at the center of all comparative legal inquiry. Law is essentially political. That is its common element. More specifically, public law reflects sovereign values, ideals, and will (p.148). The short concluding chapter, “The Moral Idea of Law,” thus reiterates that there is no “morally neutral” approach to legal interpretation (p.150). Rather, the book closes with a rousing injunction to students and other citizens to reclaim the right to define and interpret the law. They are otherwise abdicating sovereign power itself. [*434]

REFERENCES:

Durkheim, Emile. 1997. THE DIVISION OF LABOR IN SOCIETY, trans. W.D. Halls. New York: The Free Press.

Foucault, Michel. 1995. DISCIPLINE AND PUNISH, trans. Alan Sheridan. New York: Vintage Books.

McHugh, James T. 2002. COMPARATIVE CONSITUTIONAL TRADITIONS. New York: Peter Lang Publishing.

Weber, Max. 1976. ECONOMY AND SOCIETY. Berkeley: University of California.

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