Farewell to an idea? Ideology in legal theory.

• Date: 01 May 1999
• Author: Charny, David

CULTURAL SOFTWARE: A THEORY OF IDEOLOGY. By J.M. Balkin. New Haven: Yale University Press. 1998. Pp. xii, 335. $35.

In 1956, Morocco inaugurated a constitutional democratic polity on the Western model. Elections were to be held, and political parties formed, with voters to be registered by party. The Berbers, however, did not join the parties as individual voters. Each Berber clan joined their chosen party as a unit. To consecrate (or, perhaps, to accomplish) the clan's choice, a bullock was sacrificed.(1)

These sacrificial rites offer a useful parable about the relationship between law and culture. The social order imposed by law depends crucially on the "culture" of the participants in the system -- their habits, dispositions, views of the world and of themselves. A legal regime -- for elections, say -- will call forth very different modes of conduct in different cultures: here, the tribal and religious culture of Morocco contrasts to the more individualist and secular culture of Great Britain or the United States.

It is evident, then, that we need an understanding of the relationships between culture and the legal order. The formal stipulations of law have effects that are mediated through the cultural understandings in which they are embedded; indeed, even a basic understanding of those stipulations requires participants in the society to share a fundamental legal culture. Thus J.M. Balkin,(2) embarking on the task of constructing a theory of culture, enlists himself in a company that includes such venerable jurists and legal scholars as Vico, Montesquieu, Tocqueville, Weber, Gramsci, and Luhmann.

Yet this roster is also sufficient to remind us that the "theory" of culture preeminently reflects the culture -- and particularly, the political concerns -- of its time. Vico, for example, sought to vindicate the authority of the received Roman law -- against the revolutionary claims of social contract theorists -- by constructing a "rational civil theology of divine providence" through a theoretical account of linked cultural and legal transformations.(3) Although elements of his thought exerted a powerful influence among romantic and modernist theorists, the project itself -- a brilliant, albeit largely ignored intervention into the debates of the day -- is one that modern readers are unlikely to find seductive, or even comprehensible. Similarly, Montesquieu's meditations on the links between law and culture appear driven, in part, by his sympathy for a cautiously meliorist approach to the difficulties of the legal regime of the French monarchy(4) -- the approach that lost out to the more radical impulses embodied in the Jacobin revolutionary party. Of course, one could tell the same story about more contemporary figures; Weber's political polemics count among his most powerful writing,(5) and are indispensable to the interpretation of his more theoretical work.

The political impetus to Balkin's argument is evident. The aim is to reconstruct a conception of ideology as the basis for a critique of social, particularly legal, arrangements and conceptions. The fundamental notion is one of culture with the idea of cognitive tools -- "software" -- that individuals use to make sense of the world and of themselves. Software spreads from one individual to another: particularly, the units are of transmission "memes" -- the "smallest units of cultural skills or information `that can replicate themselves with reliability and fecundity.'"(6) "Ideology" is a particular type of memetic structure -- one that helps to sustain unjust social arrangements. Having developed this general conception, the book analyzes a series of structures by which persons organize information into coherent but potentially ideological systems of thought -- narrative analogy, nested opposition, and the privileging of selected attributes.

Balkin's book is a path-breaking effort to rethink legal critique using these biological and cybernetic models; the scope of its ambition and the subtlety of its execution are likely to make it a definitive work. For that reason, the book provides an important opportunity to assess the usefulness of these models for thinking about the law, and, indeed, about culture generally. My main tasks here are to situate Balkin's argument in modern legal thought, to display the structure of the argument, and to interpret its implications for current debates in legal theory and jurisprudence. Part I of this review locates Balkin's notion of "ideology" in the debates surrounding the term in legal sociology. Parts II and III take up the two notions central to Balkin's reconstruction of the concept of ideology: the memetic structure of culture and the transcendental foundations of the conception of justice. On the basis of this analysis, Part IV argues that Balkin's revisionary conception of ideology provides the groundwork for an understanding of the rhetorical structure of legal discourse.

1. IDEOLOGIES

   Balkin's use of the term "ideology" injects the work into a set of long-standing debates. In the development of ideas about culture, theories of ideology have served at least three purposes. The concept of "ideology" was first used in the late eighteenth and early nineteenth centuries to describe the ideas -- most specifically the normative judgments -- that supported a distinctive political program. The emphasis was on the partiality and schematic nature of the ideas; pejoratively, the label "ideology" suggested that political ideas were biased, rested on false factual claims or incoherent theories, or were distorted by their purveyors in order to further a political agenda. More extensively, "ideology" came to refer not only to consciously constructed or adopted programmatic notions, but also to systems of thought, judgment, or inclination -- "world views" -- that tended to support a particular social order. Definitive for this usage was The German Ideology.(7) The brilliance and polemical force of its argument came in the merger of the narrow, political, pejorative notion of "ideology" with the more extensive culturalist understanding of the term. All aspects of culture could be "ideological," with the connotation of partiality, bias, and distortion in the service of political ends. The Marxist usage maintained the polemic, accusatory thrust of the label "ideology," while developing a richer understanding of the ways in which ideas could have undetected social causes or unintended social effects. Ideas could evade the conscious, reflective self-understandings of their putative creators or advocates.

   In the end, however, the specific polemic force of the conception of "ideology" would dissipate precisely because of the range and ambition of the underlying Marxist theory. The theory soon lost itself in endless debates over the various relationships between the "base" (physical and economic forces) and the "superstructure" (ideas, or more generally, culture). In this guise, the notion of ideology -- or "false consciousness" -- played a particular role, not so much in Marxist polemics, but in the theory of history and consequent understanding of political action. The predominance of "ideology" would explain such puzzles as why the unregenerate working classes of the prosperous western democracies continued to support the bourgeois status quo, rather than rising up to move history onto its next, socialist stage: ideology had occluded the proper "class consciousness," which would have permitted the working classes to play their historically assigned role.(8)

   These arcane and intricate debates lose their meanings when the Marxist theory of historical progression is discarded. "Ideology" then comes simply to refer to a worldview, without any implicit claim about that view's wrongful partiality toward particular social arrangements, or about its role in distorting the progress of history and perverting the relations among the classes. Ultimately, the term "ideology" simply functions to emphasize the distinctive unity of such coherent, practice-supporting systems of ideas, valuations, and assumptions, but ceases to carry any significant critical implications.(9) The theory of "ideology" collapses into the general theory of ideas or cultural constructions. This emptying-out of the specific materialist and political content of the notion of ideology finds its counterpart in the movement of ideas among analysts who continued to work with a notion closer to the classical Marxist one. These theorists announced the "end of ideology" in a distinctively political sense. In the contemporary American polity, the theorists observed, the conditions for ideological conflict did not obtain; sharp class division, with a distinct working-class consciousness, had disappeared or had never arisen. A pluralist political regime managed to achieve rough accommodation among conflicting social interests.(10)

   Thus, one could choose between the demise of "ideology" in a conceptual and in a practical sense. On the one hand, the predominant modes of post-Realist legal scholarship pursued the practical project of constructing a constitutional and legal order that corresponded to, and as necessary supported, the pluralist, "post-ideological" political vision.(11) Of course, this accommodationist vision was perfectly capable of rationalizing sweeping gestures in the grand manner: "representation-reinforcing" judicial review might seek to topple educational apartheid, redesign state legislatures, or submit law enforcement to drastic new disciplines.(12) But these radical interventions were to be understood in a pluralist and inclusive spirit.

   On the other hand, the advocates of a critical or Marxisant variety of contemporary legal thought, which arose in explicit revolt against the "end-of-ideology" pluralism, found themselves wrestling with the conceptual quandaries that had baffled their forbearers. Legal analysis replicated the familiar...