Reconsidering Legalism

Abstract

This essay is in the spirit of a friendly amendment. I have found Shklar's central arguments to be more compelling every time I have reread this book over the last twenty years. Nevertheless, I want to argue in this essay that in spite of Legalism's strengths, Shklar's core anthropological claim about the profession – more often asserted, rather than argued, throughout the book – that legalism, the attitudinal glue that binds lawyers professionally, consists of a commitment to the morality of rule abidance – is flawed, not because it is wrong, but because it is underinclusive. While legalism consists of something like what she described, it is by no means only that . . . My second point, which I will take up very briefly toward the end of this essay, is that a fuller account of ideological legalism also casts the central normative question Shklar raised, regarding the appropriateness of legalism in international affairs, particularly in times and matters and questions of war, in a different light. If legalism consists of only a commitment to the morality of playing by the rules, then it does seem oddly inappropriate in the international arena.

Keywords: law, philosophy, law and ethics, lawyers, book review, legalism, positivism, fomalism, jurisprudence, legalism as conservatism, law and politics, legal profession

JEL Classification: K00