Judith Shklar’s Critique of Legalism

Abstract

The origins, social function, and the legitimacy of law were life-long pre-occupations for Judith Shklar. She was one of the first political philosophers of the post-WWII period in the Anglo-American tradition to devote intense attention to the role of law in liberal-democratic societies. In this respect, her work is more in line with European thinkers such as Max Weber, Franz Neumann and Harold Laski, and of course, her adviser, Carl Friedrich, who was the first to recommend to her that she consider the topic of legalism. From her 1964 book on Legalism to her 1987 essay on “Political Theory and the Rule of Law”, Shklar develops a contextualist analysis of law that situates it within socio-historical and cultural conditions, while seeking to avoid the normative scepticism to which such contextualism might lead. This tension between the socio-historical function of law and its normative content are the two poles around which her reflections vacillate, without quite reaching an equilibrium. In her work, “the facticity” and “the validity” of the law face each other as unreconciled dimensions. In this chapter we first consider Shklar’s early book on Legalism in which she distinguishes among aspects of legalism as ideology, creative policy, and an ethos of the law. Shklar’s critique of international criminal law, to which the second half of Legalism is devoted, is being revived today by those who share her scepticism. But this revival misrepresents the subtleties of her position and needs to be balanced against her full-throated defence of the legitimacy of the Nuremberg Trials, which, we will argue, merits consideration along with Hannah Arendt’s Eichmann in Jerusalem. Over the years, Shklar sought to differentiate more precisely between ‘the rule of law’, which she continued to defend rigorously and ‘legalism’ as a mistaken theory and practice of it. The scepticism of her early work was tempered by her more nuanced analysis of the rule of law in later writings. We turn to an elaboration of this distinction in the latter half of this essay.