Journal of Political Ideologies

ISSN: 1356-9317 (Print) 1469-9613 (Online) Journal homepage: http://www.tandfonline.com/loi/cjpi20

Ideology and law

Andrew Halpin

To cite this article: Andrew Halpin (2006) Ideology and law, Journal of Political Ideologies, 11:2,
153-168, DOI: 10.1080/13569310600687932

To link to this article: https://doi.org/10.1080/13569310600687932

Published online: 23 Jan 2007.

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Journal of Political Ideologies (June 2006),
11(2), 153–168

Ideology and law

ANDREW HALPIN

Swansea University

ABSTRACT A variety of theoretical perspectives on law are surveyed for their

attitudes towards ideology. In addition to political ideology, the possibility is
considered of recognising a ‘guild ideology’ among lawyers, or other forms of an
internal legal ideology. Efforts to extend the explanatory power of ideology
through the devices of totalizing ideology and reflexive ideology are rejected as
unfounded. The potential illumination provided by ideology to understanding the
practice of law is located in a ‘prevalent’ notion of ideology premised on enduring
conflict between opposing political outlooks, rather than a ‘pure’ notion of
ideology used to express the conceptual branch of political science. Within this
setting there remains a distinctive job for law to perform in dealing with the
conflicting demands of unfinished ideologies, and a place for ideology in working
through the unfinished business of the law.

Introductory remarks
Law is a practice. Within a particular society, we could all identify the lawyer who
practices law in not too different a fashion from the way we could identify the
baker who bakes bread. Apart from practising law one can theorise about law, and
in doing so theoretical constructs will invariably form part of the exercise. Some
theoretical constructs will help us to understand more about the practice of law;
others may be unhelpful, artificial constructs, building a theoretical picture of law
which bears no resemblance to the reality of its practice. One might even want to
dismiss a particular concept of law as an artificial theoretical construct. Where
there is not a full or agreed understanding of a practice, there is also likely to be
disagreement over which theoretical constructs are helpful in understanding that
practice further, and which are artificial and give a false understanding of it.
Austin’s concept of sovereignty, Kelsen’s concept of the Grundnorm, Hart’s
concept of the internal aspect of rules, are concepts which receive such attention.
What is ideology? One cannot practice ideology as one can practice law. We
might say of someone that he or she puts into practice a particular ideology, but in
looking at how people such as this lived their life, we would describe them as a

Correspondence Address: Andrew Halpin, School of Law, Swansea University, Swansea, SA2 8PP, UK.

ISSN 1356-9317 print; ISSN 1469-9613 online/06/020153–16 q 2006 Taylor & Francis
DOI: 10.1080/13569310600687932
ANDREW H alpin

liberal, a socialist, and so on, not as an ideologiser. The ideologist or ideologue

develops or promotes the ideas of a particular political outlook but is not advancing
or practising ideology. Ideology seems to come into the picture only when a theorist
seeks to illuminate some aspect or another of how the ideas of liberalism or
socialism, or political outlooks in general, are expounded and promoted as a
coherent body of thought. If, we adopt as a starting assumption that ideology is a
theoretical construct which has been developed primarily to illuminate the practice
of politics, then any study of the relationship between law and ideology will
necessarily also involve at least a background awareness of the relationship between
law and politics.
We could approach the study by exploring the growing extent to which ideology
as a theoretical construct is being used by legal theorists, to shed further light on
their understanding of law.1 The dangers with this approach are that by avoiding
the counter-examples of legal theorists who have rejected ideology we would be
building a picture of the practice of law that is distorted by a particular theoretical
perspective, and be restricting ourselves to developing a theory-led understanding
of practice.
I suggest that a more promising approach is to examine the reasons why
ideology has or has not been put into service by legal theorists. This allows for a
fuller account of the practice to emerge from the opposing theoretical
perspectives, and does not overlook the point that the relationship between theory
and practice can accommodate movement in either direction. Just as theoretical
reflection may bring illumination to practice, so too the wider observation of
practice may cause us to refine our theory—where, in particular, a theoretical
construct is seen to be artificially restricting our view of what we find is actually
going on in that practice. If from this investigation we conclude that ideology does
have a useful role to perform in a theory capable of illuminating the practice of
law, then we might equally expect that reflection on law might shed some light on
the nature of ideology and the political practice to which it refers.

Initial complications
Pursuing the study in this manner, we have to acknowledge from the outset the
complications that there do not exist within legal theory constant views on the
meaning and significance of ideology.2 This is hardly surprising, for neither is
there among legal theorists a constant view on the nature of law. Indeed, one of the
more parochial concerns that could be realised in undertaking a survey of the use
of ideology within legal theory is to see whether tracing different approaches to
ideology can sharpen our focus on the issues that divide conflicting theoretical
perspectives on law.
To some extent the inconsistency in approach replicates the standard opposition
found within general political or social theory between those using ideology with a
necessarily negative connotation, to convey the oppression of at least part, and
probably the greater part, of those who subscribe to an ideology together with the

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suppression of a more beneficial arrangement of social relationships for its

victims; and those using ideology in a neutral manner to convey a position on how
society should be organised, without which it would be impossible to engage in
any political speculation or activity. Another source of the inconsistency is a lack
of concern with the more technical features of ideology, broadening out to a
disinterest in differentiating anything that can be lumped together under the label
‘political’. So, whereas some legal theorists can be found arguing between
themselves on a fairly technical level as to what is understood by ideology, and
then how one understanding of ideology or another might be relevant to our
understanding of law; others can be found dismissing all talk of ideology on the
grounds that anything to which it might refer can more simply be captured as
politics. If an ideological position is synonymous with a political viewpoint or
vested political interests, then, it is thought, we would do better to deal with
politics proper and declare ideology conceptually redundant.
There is a further complication to heed in our preamble to the discussion of the
relationship between law and ideology, which echoes the aspersion just made
against lawyers, of a tendency to preoccupy themselves with the legal to the
exclusion of interests in other matters, but gives this tendency a stronger, more
positive form. It is not simply the case that lawyers can devote themselves to the
law and so become rather narrow in their outlook on life. Lawyers can become
devoted to the law, exaggerating the virtues and oblivious to the defects of the
object of their affections: all that is good resides within the law, and the law suffers
from no deficiency. Neil Duxbury’s recent study of Sir Frederick Pollock brings
out quite clearly Pollock’s devotion to ‘our lady the Common Law’.3 And
although Pollock’s vocabulary was Victorian and his mindset was primarily that of
a practitioner (as Duxbury makes clear), a similar devotion to the law can be
discerned in a theoretical preoccupation with capturing the distinctively legal
qualities of the law in a way which sets law apart from all else. The complication
here arises not through denial (or ignorance) of the significance of ideology; but,
through an insistence on the distinctive merits of law any claims that might be
made on behalf of ideology pale into insignificance.
The disdain found among lawyers towards ideology may have repercussions for
working out in an interdisciplinary forum what peculiarly legal contribution might
be made to a discussion of ideology. It might seem unlikely that the sharp witted
lawyers have spotted a superfluous line of inquiry, and more likely that a
preoccupation with lawyerly concerns has dulled their wits, so that they are
incapable of appreciating the particular insights that an ideological analysis can
bring. However, the stronger form of the disdain has a more interesting potential.
For in first being prepared to acknowledge the existence of ideology and then
relegating it to insignificance, the lawyers have (wittingly or unwittingly) adopted
a response to one of the most fiercely intractable problems confronted by students
of ideology. Once one accepts the importance of ideology, how does one know
when to stop pursuing the ideological? And if one doesn’t know when to stop,
what value does the study of ideology possess in helping to find solutions to
political (or, for that matter, legal) problems?

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Perspectives on ideology and law

The most basic issue to consider concerning the relationship between law and
ideology is whether ideology is an issue for law at all. This issue, as we have
already seen in the preliminary discussion of the weak and strong forms of
lawyers’ disdain for ideology, bifurcates between those arguments which espouse
the view that ideology doesn’t matter because ideology doesn’t matter at all, and
those which are prepared to take ideology seriously and still conclude that
ideology doesn’t matter to law.
A more rigorous unfolding of these positions reveals that there are in fact a
number of distinct perspectives possible, arranged around the questions whether
ideology is something worth distinguishing from politics in general, and whether
politics or ideology is something that needs to be taken into account when
theorising about law. There are several possible combinations of answers to these
questions, but for present purposes the discussion can be made less cumbersome
by recognising four as significant. The reduction to four can be made, first, because
once we accept that ideology specifically is going to assist us in constructing our
theory of law, we can hardly turn round and deny politics more generally a part to
play. Although we may have conceptually distinguished ideology from politics in
general, that is not to say that we can discuss, or make sense of our idea of ideology
in isolation from the political realm to which we have accepted it contributes.
Secondly, it again follows from the assumptions we have made about the
relationship between ideology and politics, that to reject the significance of
politics in its entirety for a theory of law would necessarily amount to rejecting the
significance of ideology: to reject the political realm involves rejecting any part
that ideology might play within it. It then follows that there is no significant
difference between rejecting both politics and a distinct concept of ideology, and
rejecting politics while denying a distinct concept of ideology, from the vantage
point of engaging in a theory of law. If politics in its entirety is ruled out for legal
theory, then any disagreement over whether ideology should be given distinctive
recognition within politics becomes a local squabble of no interest to law.
We are, accordingly, left with the four significant perspectives, which in short
can be expressed as follows:

no ideology matters;
nothing political matters to law;
ideology matters to law;
politics but not ideology matters to law.

The first perspective, no ideology matters, is the most vulnerable of these

perspectives, for it seeks to ban ideology as a useful device in understanding
politics, not merely, as the fourth of the remaining perspectives does, in
understanding law. This perspective has been supported by Brian Tamanaha4 and
William Lucy.5 A simple response to Lucy from Bronwen Morgan,6 points out
that the distinctive feature of ideology which sets it apart from politics in general is
that it provides justificatory force for the political interests that Lucy would

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otherwise reduce it to. To which we might add, the distinctive role of ideology
within the political realm is premised upon continuing controversy over the
political: the need to provide justification for a particular arrangement of political
interests only arises when a competing arrangement is in view.
We may then reject the first of the four remaining perspectives on the grounds
that ideology does have a distinctive role to play in our understanding of politics.
This makes the fourth more tantalising. What sort of politics, shorn of ideology,
could be of interest to legal theory? The clue to explicating this lies in the
recognition that the role for ideology within politics rests on an enduring
controversy between political viewpoints. From this it follows that politics without
ideology would amount to a cessation of hostilities between conflicting political
viewpoints. In the context of building a theory of law on this premise then, we
would be expecting something in the meeting of law with politics to be capable of
bringing political controversy to an end, yet (since politics itself matters to law)
still amount to an active engagement with politics.
Just these conditions prevail in Ronald Dworkin’s theory of law.7 Dworkin has
his ideal judge, Hercules, not simply well versed in the law but sufficiently
acquainted with the background political morality of his society so as to be capable
of constructing a political theory comprehensive enough to account for the
decisions of existing law and to provide determinate answers in those hard cases
which the established law in itself cannot determine. Yet there is no role for
ideology in Dworkin’s political theory.8 The hard cases are not ideologically
controversial but intellectually taxing. Hercules does not have to engage in
ideological arguments, but to possess a superhuman intellect so as to work out the
right answers which follow from the values which a particular society has adopted.
Putting to one side, Hercules’ superhuman intellect (Dworkin is prepared to
concede that he is an ideal figure to which mortal judges only approximate—but to
which they nevertheless aspire9), leaving out the credibility of Dworkin’s legal
and even logical arguments in support of his right answer thesis,10 the startling
feature of Dworkin’s theory for our present concerns is that the political
controversies that are an all too evident feature of modern western societies can be
circumvented by bringing politics into connection with law. Circumvented, rather
than resolved, for the technique employed by Dworkin is not to work through
controversy but to posit a state of affairs whereby the values of a particular society
are to be expounded in a manner in which controversy finds no place: ‘we want to
treat ourselves as an association of principle, as a community governed by a single
and coherent vision’.11 If the values of a modern western society can be dealt with
in this way, one has to ask the question why it is that it is necessary to use lawyers
in order to achieve it.
The more realistic assessment of the fourth perspective is that it fares no better
than the first, in banishing ideology from the political realm—merely through the
invocation of law.12 The outstanding difference between the two remaining
perspectives is not about driving out the ideological from the political, but about
how the combined ideological and political should be regarded as connected to
law (third perspective), or disconnected from law (second perspective).

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Dealing with the second perspective first, the key difference between this and
the fourth perspective which we have just been discussing, can be represented in
the following way. Where the fourth sought to banish ideology from the political
realm but to keep the relationship between the legal and political realms, the
second seeks to ban from the legal realm any representative of the political realm
(including ideology). There is to be a complete divide between the legal and the
political. The legal positivists provide the obvious example of this perspective, in
seeking to establish an understanding of law separated from all moral or political
controversy.
The intuitive appeal of legal positivism is captured effectively in the work of
Joseph Raz. Raz sees as the most important characteristic of law, its ability to
provide authoritative determination of social relations without recourse to further
moral argument. This characteristic would be threatened if a theory of law
provided an understanding of law which meant that what counted as law was
opened up to moral (or political) argument. Hence Raz does not permit within his
theory any consideration of the normative value of a purported law. What amounts
to a law must be identified by a purely descriptive test of its legal sources,
providing a social not a normative source for the law.13
The appeal of this perspective is considerable. It does not deny the existence of
ideological conflict in modern western societies, but provides for a cessation of
hostilities once the legal realm has been entered. This might be more plausible if
we could confidently draw clear boundaries around that realm: if the existing body
of law were clear in all respects. But just as ideological conflict is an undeniable
aspect of modern political life, so too is argument over the law an incontrovertible
feature of its practice. Raz himself is prepared to concede this, but seeks to keep
the legal realm intact by splitting off a theory of legal reasoning from his theory of
law.14 This repeats in a more sophisticated form the ploy used by Herbert Hart in
The Concept of Law. Hart separated the established body of law discovered
through a social test in the form of ‘a rule of recognition’, from the contestable
process of legal reasoning relegated into an inferior realm of judicial discretion.
Hart, however, was prepared to acknowledge in his posthumous Postscript that his
theory of law had been inadequate in its treatment of legal reasoning.15
It certainly appears artificial to construct a theory of law which expels from its
subject matter one of the most notable features of the practice of law: the
argumentative capacity of lawyers. In terms of our particular concerns, it is
interesting to note that here too there is an attempt to make some use of legal
reasoning in order to provide respite from ideological conflict. In this case, legal
reasoning is not harnessed to the political in order to avoid ideological conflict, as
with Dworkin, but legal reasoning regarded as open to the political and the
ideological is separated from the law proper, from which the poltical
and ideological can then be barred. Both perspectives seek to bring an end to
ideological conflict through law but go about it in very different ways.
No such reluctance to permit the ideological into an understanding of law is
shown by the third perspective, which is the final of the four remaining
perspectives to consider. This perspective can be identified with the Critical Legal

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Studies Movement,16 and in general with leftist or ‘critical’ approaches to law—

which, I shall conveniently label together as heterodox legal scholarship.17 The
exact nature of the welcome to ideology is far from straightforward, and will be
considered in detail within the following section.

Ideology in law
The discussion so far has taken for granted that the ideology of concern to us is
political ideology, but when we come to consider the role ideology might play
within law it is worth pausing to examine that assumption. In particular, might it
be possible to find within law an ideology that does not promote a political
viewpoint but one that promotes the law itself? William Twining has pointed out
to me that Jeremy Bentham’s scattered references in his writings to the tendency of
lawyers to promote a legal view of the world, which elevates the interests of its
practitioners over the communal (or political) interests that the law should serve,
produces a kind of guild ideology, pithily captured by Bentham as the interests of
Judge and Co.18 Twining considers19 that Bentham was developing an incipient
theory of ideology in his concern to reveal the false consciousness and oppressive
function of the ‘sinister’ interests20 which lay behind such a viewpoint. Bentham’s
remarks are a precursor of Judith Shklar’s denunciation of legalism as
‘professional ideology’ more than one hundred years later. 21
Such an ideology is not strictly political because it makes no attempt to embrace
the full array of concerns that a political outlook would need to contemplate, and
yet it certainly has a political impact (as Bentham himself was concerned to
demonstrate22) in that it is capable of obstructing political viewpoints that would
be incompatible with it.
The notion of an internal ideology for law can also be employed in considering
other instances of promoting values associated with the law itself, rather than
being directly linked to a particular political viewpoint. Lon Fuller’s efforts to
capture an internal (or procedural) morality for law,23 and widespread
promulgation of the Rule of Law,24 provide obvious examples. A less obvious
instance can be found in the views of legal positivists.25
Although the legal positivists insist on identifying law through a social rather
than a normative test,26 that does not mean that they are willing to give up on the
normativity of law. Raz seeks to capture this without falling back into moral or
political values by putting forward ‘a legal point of view’ which accounts for the
peculiar normativity of law.27 Normative statements made from the legal point of
view are ‘detached’ from the particular moral or political values that the law in
question might happen to be promoting. Raz’s argument for recognizing detached
normative statements in law is not compelling. It proceeds by analogy with cases
of detached normative statements made in other contexts, which are secondary to
committed normative statements. So, for example, I as a non-vegetarian can make
a detached normative statement in advising a vegetarian friend not to eat a
particular dish which I know to contain meat. In this case the normative force of
my statement is dependent on there being a committed normative position behind

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it in the outlook of my vegetarian friend. By contrast, the whole point of Raz’s

exercise is to keep legal norms from being dependent on a commitment to moral or
political values.
The legal point of view promoted by legal positivists can perhaps better be
regarded as a direct commitment to the law, rather than a detachment from other
commitments. Whether we want to see this as a guild ideology for a particular
group of legal theorists, or recognise it as a more common attitude within the
general population, it does raise again the possibility of there being an internal
ideology for law, impacting indirectly on political ideologies.
The principal concern of the perspective of heterodox legal scholarship,
introduced at the close of the previous section, has been to reveal the hidden
ideological assumptions of the law through rejecting the formal authority of
positive law. Initially this was presented as ‘ideology critique’: the apparently
objective requirements of legal doctrine in fact serve the dominant interests in
society which that doctrine protects, concealing the disadvantage to other
legitimate interests within society.28 At this stage the negative form of ideology is
predominant but subsequently there came a broader association of ideology in the
neutral sense with law. Law then became the venue for ideological struggle rather
than ideology critique.29
The slogans of ‘law is politics’ and ‘law is ideology’ associated with the
heterodox perspective threatened both the dominant political ideologies which had
become vested with the protection of the law, and any internal ideology which
might seek to promote the perceived values of the law itself. Both the laissez-faire
capitalism, or even the capitalism of a coordinated economy, that stood concealed
behind the doctrines of contract law,30 and the Rule of Law which cloaked the
whole of legal doctrine with a false legitimacy,31 were regarded as targets. Yet if
law is nothing but politics or ideology, it is not simply the established use of law
but the very existence of law as a distinct enterprise that is under attack. Alongside
the Rule of Law, anything which might be associated with some particular
advantage in taking a legal approach to the resolution of social conflict became
tainted: the protection of rights, the guidance of established precedent, the pursuit
of procedural fairness or justice, could all be deconstructed as the deceptive and
oppressive devices of the law.32
The reactions to this state of affairs have been diverse, encompassing hostile
rejection and mockery of the heterodox position,33 as well as attempts to engage
with its critical concerns in a reconstructive manner, so as to retain a distinctive
identity for law.34 The more extreme reactions within the heterodox camp can be
divided into two: (1) law is submerged within politics or ideology so let us
abandon the pretence of lawyerly skills and get stuck into the ideological struggle
of persuading others to promote our favoured vision of society; (2) law can no
longer be regarded as an external arbiter for political or ideological conflict, but
the role once falsely assumed by law can be brought off within ideology itself.
Reaction (1) effectively kills off any interest in a relationship between law and
ideology, since law has lost a distinctive role to perform.35 Reaction (2) keeps it

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obliquely alive by leaving open the question of whether ideology can supplant law.
What would it mean for the role of law to be performed by ideology?

Extending ideology
I suggested earlier that the distinctive contribution that might be expected from a
discussion of law and ideology was to shed some light on the conundrum of how to
resolve the controversy that ideology itself appeared to be premised on. Whether
we consider the emotive devotion to the Common Law of a lawyer like Pollock, or
the Herculean intellectual effort to harness the law’s resources suggested by
Dworkin, or the positivist concern illustrated by Raz to detach the pronouncements
of the law from moral or political conflict, or even the uncritiqued support from the
law for a dominant ideology presumed by the heterodox scholars—in all these
cases the law is regarded as making it possible to put forward a view of how
society should be organised that has become insulated from controversy.
If by letting external political ideology loose in the law each of these
comfortable havens has been destroyed, and consequently no respite from
ideological conflict can be offered by the law, how then can untrammelled
ideology itself bring about some sort of resolution of conflict so as to permit any
society to stabilise? Two ways of extending the understanding of ideology have
been suggested to meet this problem. One involves a totalizing ideology, the other
a reflexive ideology, though in specific suggestions there can be found
considerable overlap between the two.
Totalizing ideology takes the role of ideology within politics to be not simply
the way of expressing the justification for a particular political outlook but to be
the dominant force within it; and then takes that dominance beyond a particular
political outlook to become the common ground for all political outlooks; and
thence makes it both the venue and the instrument by which conflicts between
different political outlooks are resolved. Within legal theory a totalizing nudge has
been given to ideology by Duncan Kennedy36 but a harder push by Jack Balkin.
After initially portraying ideology as ‘the glue that binds the law together’,37
Balkin takes matters a stage further in suggesting ‘a third conception of ideology’
(beyond the negative and neutral conceptions) deploying ideology as ‘cultural
software’, which both ‘empowers and disempowers’ and ultimately ‘creates the
possibility of a critical engagement with itself’.38
These suggestive remarks of Balkin have been developed in a fuller account of
how ideology might operate in a totalizing role in his subsequent book.39 Balkin’s
use of ‘cultural memes’ (transmittable bits of cultural information) as the building
blocks of cultural software, and hence the standard currency of ideology, permits
him to set up an ideological exchange between what would otherwise be
incompatible political viewpoints. There is a strikingly similar approach displayed
by Patrick Glenn in his extensive treatment of the totalizing reach of legal
tradition.40 This is of interest here because the scope for portraying tradition as
ideology, and vice versa, is considerable.41 More than that, the problems
confronting a totalizing ambition for tradition and ideology over law are just the

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same. The conflicts between incompatible ideologies or traditions have to be

faced. Either this conflict is resolved by some external choice of one over the
other, in which case the influence of ideology (tradition) is not total;42 or,
somehow the incompatible positions have to be held together within the totality.
Glenn puts forward a fairly complicated argument involving positions against
incommensurability, and for multivalence, in order to support his vision of a
‘sustainable diversity in law’ based on tradition. However, his argument suffers at
the theoretical level from confusing comparability with commensurability, and a
multi-faceted approach with a multivalent approach; and in practical terms Glenn
fails to engage with any actual point of conflict at which both incompatible
traditions are present.43 Balkin does not technically deny incommensurability but
marginalises it so as to avoid actual points of conflict.44
Balkin points more particularly towards a reflexive ideology in suggesting as an
ultimate state for ideology a critical engagement with itself through ‘a notion of
reflexive and recursive reason, where software is applied to its own operations’.45
The device of a reflexive ideology takes the initial reflection that naturally
accompanies the decision to adopt a particular ideology, as best responding to the
question of how society should be organised, and then builds that process of
reflection into ideology itself. Ideology presents a perpetual opportunity to
reconsider the question to which an answer has been given.
The same device can be detected at the heart of Morgan’s attempt to articulate
a role for ideology as the basis for law in the form of a paradox,46 drawing on a
growing literature that seeks to ground law on some sort of essential
contradiction or paradox. Morgan sees the paradox as resting in the
irreconcilable: the claim of the law to provide a system of governance which
promotes the good of all, and the observation of particular individual interests
which are neglected through the promotion of that conception of the good. Since
the promotion of any conception of the good, which provides legitimacy to the
law, involves some neglect of individual interests, Morgan believes that there is a
paradox expressible in terms of ideology at the foundation of law. The ideology
of law simultaneously asserts ‘collective general values’ and denies it in
favouring ‘segmented interests’ at the expense of other individual interests.47 The
reflexive character of this basis for law is ensured by the paradox or essential
contradiction being a state which ‘perpetually defers convergence (or
“resolution”)’.48 This state in turn invites further ideological positions to cover
up, for a time, the paradox.49
I want to suggest that simple errors underlie these devices, errors which are
caught up in a contortion of language. The totalizing device depends upon two
incompatible positions both being given the same label, as ideologies, and then
from the common label a false inference is drawn that they share a common
quality or form part of the same totality: everything is ideology.
The reflexive device depends upon the interchangeability of one response to a
question for another. Since each answer in a sense provides a meaningful response
to the question, the process of replacing one answer with another appears not to
detract from the fact of having an answer to the question. So long as we can be sure

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of having an answer to the question, we have what we need. Hence, it is thought,

if we cannot be sure of the grounds for the current answer, the fact that we are able
to reflect further on the current answer and replace it if it is then considered
unsatisfactory in any way, permits us the double comfort of (a) not being
committed to accepting an answer whose grounds might be suspect, and (b) being
assured that we do have an answer to the question because a replacement is always
available.
With both devices the misrepresentation of language is to assume that the use of
a common term (‘ideology’, ‘answer’) implies equivalence for the purpose at
hand. It doesn’t. Ask two football supporters from Southampton and Portsmouth
who their favourite team is. Even if structurally the behaviour of each fan to his
own team can be shown to have a precise fit with the other’s, there is still no
equivalence of Portsmouth and Southampton as football teams to support, for
either fan.
In the case of the reflexive device, a further point can be made to demonstrate
the lack of equivalence, which relates specifically to the interrogative form of the
device. The point of asking a question is to obtain an answer, the point of
providing an answer is to move beyond the question: for example, to commence
what we now know we should do. The point is not to have the opportunity of
replacing the answer with another answer; ie, returning to the question. The
reflexive error proceeds as though the function required to be performed by one
answer can still be performed if we replace one answer with another, because both
answers perform the same function. In actual fact, the process of replacement
cannot perform the function of answering a question at all, which requires not that
we can replace the answer but that we can act on the answer. Until we have
reached that point we have not answered the question. Once we reach that point we
are in an incompatible position in relation to a different answer which we might
otherwise have adopted.
Nothing in the preceding discussion prevents us from acknowledging that
people do sometimes change their minds: answer a question one way one day, and
another way another day. Support Southampton one day and Portsmouth another
day—hypothetically, it is a possibility. Even so, that does not make it possible to
support Southampton and Portsmouth at the same time. Or to switch to more
appropriate illustrations, to discover that someone has changed from being a
socialist to a laissez-faire capitalist does not make the two ideologies equivalent or
mutually replaceable.50

Returning to ideology and law

There is one glaring omission from the major approaches to legal theory
mentioned above as taking up positions on the relationship between law and
ideology. No mention has been made of a natural law theory. It might be thought
that this can be bracketed together with Dworkin’s approach to legal theory (which
has been described as a secular form of Natural Law), in proposing a uniform set of

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values to overcome the possibility of political controversy. There is, however, a

significant difference concerning the relationship between law and politics.
Whereas Dworkin had to posit a complex relationship between law and politics in
order to produce a set of values capable of eradicating controversy and effectively
banishing ideology, Natural Law assumes a set of values that transcends the
difference between law and politics.
It is not that for Natural Law, law is politics, as heterodox legal scholarship
proclaims, but rather, Natural Law encompasses both law and politics.51 The role
of law here is not to discover social harmony, nor to avoid political controversy,
but to express the political harmony that is to be found within the values of Natural
Law. Quintessentially, Natural Law requires no lawyers. Judges may be required,
as administrators, to apply the precepts of Natural Law, but no lawyer’s skill is
needed in order to discover these precepts. That is the province not of the lawyer
but of the person possessing a mature capacity to reflect on the human condition—
Aristotle’s ho spoudaios.52 Significantly, for Aristotle a lack of experience of life
and conduct is a disqualification not from the study of law, but from the study of
political science;53 and when the written law runs out, Aristotle calls for human
reflection not the reasoning of a lawyer or judge.54
This would appear to make ideology in the sense we have been using it not so
much redundant as never required. In a pure and purely Natural Law context, if we
wished to render a use for ideology we would have to transform it from a
justificatory exposition of a particular political outlook premised upon continuing
controversy over the political, since the uniform values of Natural Law leave no
room for controversy. If ideology had any role left to perform, it would be to
express the conceptual branch of a pure political science—which may have been
the original aspiration for ideology at its inception in the writings of Antoine
Destutt de Tracy after the French Revolution.55 However, as Shklar points out,56
the context for natural law theorising is neither pure nor purely inhabited by
Natural Law. Natural law theory fragments into a variety of conflicting political
outlooks, and finds itself in competition with other opposing viewpoints. In these
circumstances, ideology in the former sense returns, both to express competing
perspectives within Natural Law and also to advance the natural law cause(s) in a
potentially hostile environment.
The final inclusion of Natural Law in our survey is revealing in a number of
respects. The projected union of law and politics within a uniform set of values
would take us beyond the prevalent notion of ideology we have been employing,
but the use of ideology to express the conceptual branch of a pure political science
can be regarded as a theoretical construct which is disconnected from the
experience we have of the practice of both politics and law. Yet in descending to
the prevalent notion of ideology as being more illuminating, the recognition of
controversy accompanying it has repercussions beyond acknowledging the
conflicting state of different political outlooks. It fractures the harmonious union
of politics and law.
Before considering this point further, it is worth pointing out how the contrast
between what I shall abbreviate to the ‘pure’ notion of ideology and the ‘prevalent’

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notion of ideology helps to account for the difference between negative and
neutral uses of ideology. From the perspective of a pure notion of ideology all
other uses of ideology would be false and negative. The problem is that a pure
notion of ideology is nothing but an artificial theoretical construct: it has
never emerged from political reflection so as to authoritatively banish all
pretenders. From the internal perspective of one ideological position, in the lesser
prevalent sense, it is still possible to reproduce the domination that has only been
theoretically conceived in the pure sense, if that internal perspective is regarded
as wholly sufficient and convincing. From an unconvinced external perspective
(possibly embracing a competing ideology) this is not a possibility for that
ideology. Indeed, if the prevalent notion is to bite, we have to reach a position of
some scepticism not only towards others’ ideological positions but also towards
our own (at the very least, in respect of their sufficiency). Otherwise, political debate
and dialogue would be impossible, with every position maintaining its own pure
scientific standing and decrying its opponents’ various alternatives as mere illusions.
The neutral use of ideology thus accepts that some further work is still required in
engaging with the conflicting political outlooks on how society should be
organised.57
In these circumstances the harmonious union of politics and law is fractured
primarily because politics itself enjoys no harmony that it can extend to law. One
role for law then becomes to resolve the questions of how society should be
organised without having recourse to a uniform set of political values, and without
there being a recognised sufficient ideology in even the prevalent sense that is seen
to be capable of providing all the answers required. If the law were to fully
discharge this role then a complete set of legal answers to all the questions would
be available, and this might even be hailed as a pure science of law where a pure
science of politics was found wanting—even, as an internal ideology of law in the
pure sense. But this, our deliberations have found, would be as much an artificial
theoretical construct as its political counterpart.
With a recognition of the limitations of both our political ideology and our law,
the usefulness of ideology for those seeking illumination of the practice of law is
to locate its role in terms of what law has had to deal with, and what law still needs
to deal with: the conflicting demands of unfinished ideologies. It makes the
practice of law of interest to those concerned with political ideologies, because the
existence of law as a discrete practice is evidence of the necessity of curtailing
ideological discussion, while the recognition of law as itself an unfinished practice
is evidence of there still being a need for the ideological discussion to go on.
Perhaps the final point of interest for students of both politics and law, is the
question of who it is that decides where and when the ideological discussion
should stop.
It may seem unadventurous to conclude that neither politics, nor law—not
even ideology itself—can provide all the answers we need in order to
understand how society should be organised. To conclude otherwise would,
I think, involve us as participants in another form of ideology, ideologising our
own intellectual efforts.

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Notes and References

1. The impact is not confined to domestic law. See Susan Marks, The Riddle of All Constitutions: International
Law, Democracy, and the Critique of Ideology (Oxford: Oxford University Press, 2000).
2. For an illuminating sample of views, see Brian Tamanaha, Realistic Socio-Legal Theory: Pragmatism and a
Social Theory of Law (Oxford: Oxford University Press, 1997), pp. 85 –89. See also the editorial concerns
over disparate meanings, and their implications for sociolegal studies, that prefaced a special issue on Law
and Ideology: Robert Kidder, ‘From the Editor’, Law and Society Review, 22, 1988, pp. 625 –627; ‘From the
Special Isssue Editors’, ibid., pp. 629– 636.
3. Neil Duxbury, Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press,
2004), pp. 153–154.
4. Tamanaha, op. cit., Ref. 2, pp. 89, 247.
5. William Lucy, ‘What is Wrong with Ideology?’, Oxford Journal of Legal Studies, 20, 2000, pp. 283 –300.
Also found in William Lucy, Understanding and Explaining Adjudication (Oxford: Oxford University Press,
1999), pp. 234–239.
6. Bronwen Morgan, ‘What is Right with Ideology?’, Oxford Journal of Legal Studies, 22, 2002, pp. 517 –538,
at p. 532.
7. See, in particular, Ronald Dworkin, Law’s Empire (London: Collins, 1986).
8. For Dworkin, ‘ideological convictions’ are located two removes from the political theory that encompasses a
general conception of law, through a connection to other parts of political morality, which themselves are
externally connected to a general conception of law (ibid., p. 101). Even here there is no room to consider
ideological controversy. When Dworkin acknowledges this in terms of competing philosophical visions
(ibid., pp. 408–409), these are not allowed to compete with each other but are subordinated to the ‘integrity’
which is ‘sovereign over law’ (ibid., p. 404).
9. For judicial backing on this, see L.H. Hoffman, Review of Simon Lee’s Judging Judges, Law Quarterly
Review, 105, 1989, pp. 140–145.
10. For a detailed critique of these arguments, see Andrew Halpin, Reasoning with Law (Oxford: Hart
Publishing, 2001), chapter 5.
11. Dworkin, op. cit., Ref. 7, p. 404.
12. For further discussion of Dworkin’s perspective, see Andrew Halpin, ‘The Methodology of Jurisprudence:
Thirty Years Off the Point’, Canadian Journal of Law and Jurisprudence, 19, 2006, pp. 67–105.
13. For the standard location of Raz on what he considers to be the essential characteristic of law, see his The
Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979), pp. 50–52.
14. See, e.g. Joseph Raz, ‘Postema on Law’s Autonomy and Public Practical Reasons: A Critical Comment’,
Legal Theory, 4, 1998, pp. 1–20. For detailed discussion of Raz’s methodology, see Halpin, op. cit., Ref 12.
15. H.L.A. Hart, The Concept of Law, 2nd edn, Penelope Bulloch and Joseph Raz (Eds) (Oxford: Clarendon
Press, 1994). For further discussion, see Halpin, op. cit., Ref. 12, Appendix (XII)(c).
16. For a helpful introduction, see Mark Kelman, A Guide to Critical Legal Studies (Cambridge, MA: Harvard
University Press, 1987), particularly chapter 9 on ‘ways in which legal thinking is prone to be an effective
justificatory ideology.’ The invitation to the initial meeting of the CLS Movement in 1977, quoted by
Kelman, ibid., p. 297, includes reference to an interest in ‘the ideological character of legal doctrine’.
The organizing committee included Unger and Kennedy, whose subsequent work is mentioned below
(nn. 34 & 35).
17. For general discussion of heterodox legal scholarship, see Andrew Halpin, ‘Criminal Law Going Critical’,
chapter 2 of Definition in the Criminal Law (Oxford: Hart Publishing, 2004)—also available at: http://ssrn.
com/abstract ¼ 564571.
18. John Bowring (Ed.), The Works of Jeremy Bentham (Edinburgh: William Tait, 1838–1843), vol. V, p. 369.
19. Personal communication.
20. See, in particular, Bowring, op. cit., Ref. 18, vol. V, pp. 3–8; vol. VII, pp. 201–14.
21. Judith Shklar, Legalism: Law, Morals, and Political Trials (Cambridge, MA: Harvard University Press,
1964), pp. 1 –25. Shklar’s use of ‘professional ideology’ (p. 12) follows Weber’s use of ‘internal professional
ideology’ (p. 16).
22. For a particularly acerbic example, see Jeremy Bentham, An Introduction to the Principles of Morals and
Legislation [1781], Burns and Hart (Eds) (London: Athlone Press, 1977), I:XIII n. Shklar, op. cit., Ref. 21,
makes a similar point, though is more ambivalent about treating ‘legal ideology’ (pp. 2–3) as ‘a full-blown
ideology’ (p. 10).
23. Lon Fuller, The Morality of Law (New Haven, CT; Yale University Press, 1964).
24. For the general picture, see Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge:
Cambridge University Press, 2004). A stimulating account of the Rule of Law in the EU context is provided

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by Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law
in Europe (Oxford: Oxford University Press, 2001).
25. I differ here from Shklar, op. cit., Ref. 21, pp. 8– 9, in suggesting a more distinctive internal legal ideology
for legal positivists than the general ideological assumption she suggests for ‘most legal theory, whether it be
analytical positivism or natural law theory’, based on the theoretician’s endorsement of a way of legal
thinking imbued with a professional ideological outlook.
26. See text at n. 13 above.
27. Joseph Raz, Practical Reason and Norms (London: Hutchinson, 1975), pp. 142– 144; op. cit., Ref. 13,
pp. 153 –157.
28. David Trubek, ‘Where the Action Is: Critical Legal Studies and Empiricism’, Stanford Law Review, 36,
1984, pp. 575– 622, at pp. 589–591.
29. Kelman, op. cit., Ref. 16, pp. 300–302.
30. Peter Gabel and Jay Feinman, ‘Contract Law as Ideology’, in David Kairys (Ed.), The Politics of Law, 3rd
edn (New York, NY: Basic Books, 1998).
31. See Shklar, op. cit., Ref. 21; Margaret Jane Radin, ‘Reconsidering the Rule of Law’, Boston University Law
Review, 69, 1989, pp. 781– 819.
32. Robin West, Re-Imagining Justice: Progressive Interpretations of Formal Equality, Rights, and the Rule of
Law (Aldershot: Ashgate, 2003), discusses the critical denunciation of the Rule of Law, Rights, and Formal
Equality, as elements of legal justice, but seeks to construct an alternative project for the law.
33. Owen Fiss, ‘The Death of the Law’, Cornell Law Review, 72, 1986, pp. 1 –16.
34. Neil MacCormick, ‘Reconstruction after Deconstruction: A Response to CLS’, Oxford Journal of Legal
Studies, 10, 1990, pp. 539– 558; Roberto Unger, What Should Legal Analysis Become? (London: Verso,
1996); West, op. cit., Ref. 32.
35. Duncan Kennedy, A Critique of Adjudication (Cambridge, MA: Harvard University Press, 1997), provides
the prime example of reaction (1). Once the pervasive presence of ideology within law is recognised
(chapter 6), the only significance remaining for the legal form is a marginal constraint on how far ideological
issues can be pursued (chapters 7 & 8).
36. Kennedy, ibid. Although he represents ideology as pervasive in law (see previous note), and considers that
there cannot be a critical position outside ideology (p. 57), Kennedy falls short of totalizing ideology. See, in
particular, his acknowledgment that it is possible to seek a deeper explanatory level than ideology can itself
provide (pp. 188 –191), and, in general, his principal concern with his own ideological outlook rather than
with a foundational view of ideology (e.g. pp. 57, 191). The same point can be made in relation to Kennedy’s
use of critique, which, if anything, he does more to represent as a totalizing device, but is ultimately
subordinated to his own preferred political outlook—for discussion, see Halpin, op. cit., Ref. 17, pp. 66–68.
37. J.M. Balkin, ‘Ideology as Constraint’, Stanford Law Review, 43, 1991, pp. 1133–1169, at p. 1151.
38. J.M. Balkin, ‘Ideology as Cultural Software’, Cardozo Law Review, 16, 1995, pp. 1221–1233, at
pp. 1232–1233.
39. J.M. Balkin, Cultural Software: A Theory of Ideology (New Haven, CT: Yale University Press, 1998).
40. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law, 2nd edn (Oxford: Oxford
University Press, 2004). The first edition was published two years after Balkin’s book, op. cit., Ref. 39.
Despite no apparent awareness of each other’s existence, the two authors have strikingly similar approaches
to core ideas (developed within their respective slants on tradition/ideology-culture); e.g. Glenn’s ‘bran-tub’
of traditional information (pp. 13–15) and Balkin’s ‘meme pool’ (p. 93)—Glenn himself refers to memes in
the pages cited.
41. The connection between tradition and ideology is explored further in Andrew Halpin, ‘Glenn’s Legal
Traditions of the World: Some Broader Philosophical Issues’, Journal of Comparative Law, 1, 2006,
pp. 116–122—also available at: http://ssrn.com/abstract ¼ 698021. Cp. Michael Freeden, Ideology: A Very
Short Introduction (Oxford: Oxford University Press, 2003), p. 32: ‘ideological belief systems. . .organized
around political traditions’; p. 76: ‘ideologies. . .constituted political traditions’.
42. Kennedy appears to take this route away from totalizing ideology in relying ultimately on personal
disposition to select a favoured political outlook. See n. 36 above.
43. For full discussion, see Halpin, op. cit., Ref. 41.
44. Balkin, op. cit., Ref. 39, p. 153, disposes of incommensurablity within a single paragraph without illustration.
45. Balkin, ibid., p. 139.
46. Morgan, op. cit., Ref. 6, pp. 534 –538.
47. Morgan, ibid., ref. 6, p. 535.
48. Morgan, ibid., p. 535. cp. ibid., p. 530: ‘ideological critique is a project of iterative redescription.’
49. Morgan, ibid., pp. 536–537.

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50. There are points in Balkin’s book, op. cit., Ref. 39, where he relinquishes his grip on the totalizing or
reflexive device. See his discussion of transcendence (chapter 7), and his recognition of factors outside
discourse (p. 168), and outside memetic evolution (p. 293). For the broader location of ideology within
discourse or a language community, see Balkin, ibid., p. 2; Halpin, op. cit., ref. 41.
51. Shklar, op. cit., Ref. 21, p. 67: ‘the greatest merit of natural law theory [is] that it assumes that law must be
examined in terms of a comprehensive political theory’.
52. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 30–34.
53. Aristotle, Nicomachean Ethics, I.iii.5–7.
54. Aristotle, Politics, III.xi.8—discussed in Halpin, op. cit., Ref. 10, p. 82.
55. See Freeden, op. cit., Ref. 42, pp. 4–5; Matthew Festenstein and Michael Kenny (Eds), Political Ideologies:
A Reader and Guide (Oxford: Oxford University Press, 2005), p. 7.
56. Shklar, op. cit., Ref. 21, pp. 64–68.
57. As is acknowledged by both Kennedy, op. cit., Ref. 35, and Balkin, op. cit., Ref. 39.

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