Farewell to an Idea? Ideology in Legal Theory

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. 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 soci- ety to share a fundamental legal culture. Thus J.M. Balkin, 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.