Legalism and Legality

Abstract

How does the world view expressed in the Antigone show itself in practice? Some have argued that such a stance and ideology is very common among members of the legal profession and thus in the practice of law and law itself. I deal in this chapter with rationality in law and in our response to law. Autonomy in morality seems to us to be fundamental to moral agency, and from that point of view it seems that we confront positive law as something extraneous to the individual will. Is the fate of the law-abiding citizen then that of a heteronomous being, bound by an extraneous will? What does that mean for the society under law? This chapter attempts to show what it means for society to live that sort of world view. What is that world that we here describe? It is best characterised as that of legalism, seeing the law merely as a heteronomous system of rules. This world demands the complete opposition of law and love (see chapter 2). But since my aim is to deny these binary oppositions, I will end the chapter by suggesting that living the life of law does not necessarily demand the world view of legalism as we have described it; that there is a moral stance contained therein that one could autonomously adopt, freely taking the positive law as one’s guide to conduct so far as it goes.

A version of this chapter appeared as ‘Legality without Legalism’ which I wrote jointly with Neil MacCormick for a Festschrift for Aulis Aarnio, ‘The Reasonable as Rational’, edited by W Krawietz, R Summers, O Weinberger, G von Wright 2000. I wish to thank Duncker and Humblot, the publishers and Neil MacCormick for allowing me to use it.