A Review of Western Legal Theory. By Augusto Zimmermann
When most people think of law, they think of various dos and don’ts which the states enforce. Speed limits, murder laws, and contract legislation may all come to mind when we contemplate legal issues. But law is not that simple, and there are in fact all sorts of legal theories, philosophies and ideologies which lie behind them.
Worldviews and presuppositions, in other words, generally underlie specific laws and legal policies. Therefore we have such things as Marxist legal theory, feminist law studies, and even queer legal theory. All these differing views will determine how law is done, how judges operate, what sort of laws are passed, and how societies operate in general.
Law is not just some neutral, objective thing floating in mid-air, but is far too often the subject of political and ideological squabbles. This is certainly true in Western law schools, where many law faculties, courses and classes are dominated by various radical and leftist ideological agendas.
Indeed, I am aware of one law faculty which is comprised almost entirely of homosexual and lesbian lecturers and professors. And this would not be a rare thing either. Thus most law students will be getting as much ideology as education when they study at many of these schools.
We need to be aware therefore about these various theories and ideologies which reign supreme throughout the West. And this volume by Perth law professor Augusto Zimmermann fits the bill nicely. It helps us sort through the various competing legal ideologies and theories, and enables us to get a better grasp of why the judiciary, courts, and lawmakers do what they do and say what they say.
As a textbook, this volume covers the usual topics in this field. Thus we have meaty chapters on various legal theories, such as legal positivism, postmodern jurisprudence, critical legal studies, Marxist legal theory, feminist jurisprudence, and so on.
But given the vast importance of such things as natural law theory and rule of law theory, Zimmermann gives these topics due attention. As to the former, he reminds us that “it is not possible to deny the relevance of natural law theory in the development of the rule of law in Western societies”.
It was not just great medieval Christian thinkers who developed this, but the great classical philosophers as well. Thus we have a line of great thinkers from Plato, Aristotle and Cicero, through Augustine and Aquinas, to Hooker, Blackstone and Finnis today advancing this concept.
And we still feel its impact today, with its principles enshrined in the English Magna Carta and Bill of Rights, as well as the US Declaration of Independence and the French Declaration of the Rights of Man and the Citizen. Most notably its presence was felt at the post-WWII Nuremberg trials, where Nazis who said they were just doing what they were ordered to do were met with the claim that there is ‘a law above the law’.
In marked contrast to many other theories of law, this long-standing view declares there to be objective ethical standards and principles which transcend humans and governments, which we all stand under, and which should help form the basis of actual state legislation.
Theories like legal positivism argue that a law is valid simply if it has gone through the correct practical procedures of the state. Questions of proper authority and the like, not moral considerations, are what mainly matter here. Thus we see modern states like that of the Nazis running with this concept.
Says Zimmermann, “When one looks at the German legal profession in the 1930s, leaving aside those who were fully committed to the Nazi ideology, it becomes apparent that legal positivism played a significant role in the failure of judges and lawyers to stand up against Nazi injustices.”
Again, the issue of worldview plays an important role here. One’s worldview determines one’s legal philosophy. Ideologies like national socialism, the philosophy of Nietzsche, and social Darwinism, all gave rise to the Nazi horror. Thus “the Nazi legal system cannot be isolated, like some sort of mere accident” from these supporting ideologies and worldviews.
What the Nazis and Marxist dictatorships lacked of course was the fundamental principle of Western democracies: the rule of law. Under the concept of rule of law, all public authorities and leaders are subject to the same legal rules and principles as everyone else.
Rule of law “is essentially concerned with protecting citizens from unpredictable and arbitrary interference with their vital interests”. As such, it “involves a delimitation of governmental functions, so that the power of the state is exercised in accordance with clear, stable and general rules of law”.
One can readily see how such legal thinking and practice makes things like the Nazi police state preventable and inoperable, at least in theory. Modern Western democracies operate on the overriding principle of the rule of law, but steps must always be taken to ensure this is not whittled away by judicial activism, political correctness, and activist minority groups.
Zimmermann helpfully notes how often some of these various legal theories overlap and/or influence one another. For example, he rightly explains how both Marxists and the Nazis shared common philosophical and political ideologies and practices. He writes, “the notion that Nazism and Communism are polar opposites on the political spectrum hides the fact that they are kindred spirits. There is a remarkable convergence of ideas between them”.
And Zimmermann nicely demonstrates how these totalitarian systems were so very heavily influenced by evolutionary legal theory. Indeed, “all the three greatest genocidal regimes of the last century – Nazi Germany, Soviet Russia and Communist China – were firmly grounded in the scientific materialism of Darwinism.”
Or consider feminist legal theory. While there are differing versions of feminism, such as liberal and radical, much of feminism has marched arm in arm with Marxist thought: “While a liberal feminism supposes equal rights and duties between all men and women, radical feminism, inspired by Marxist ideology and postmodern social analysis, is highly critical of these values. Indeed, Marxist theory overlays much of contemporary feminism.”
This broad-based yet detailed examination of various worldviews, ideologies, legal philosophies and theories is most helpful indeed, and Zimmermann has done an excellent job of pulling this off. Complex theories are explained in easy to follow language, and the entire gamut of some two and a half millennia of legal thought is nicely laid out here.
Anyone wishing to understand the modern workings of law and the judiciary needs to have this valuable resource to help explain the reigning legal ideas and theories which form their backgrounds. It is a very important contribution to some very complex and multilayered topics which we need to understand.