Herbert, Hercules and the Plural Society: A “Knot” in the Social Bond
| Date | 01 November 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb01494.x |
| Published date | 01 November 1978 |
HERBERT, HERCULES
AND
THE
PLURAL
SOCIETY: A
“KNOT”
IN
THE
SOCIAL BOND
“They are playing a game. They are playing
at
not
playing a
game.
If
I
show them
I
see they are,
I
shall break the rules and they will punish
me.
I
must play their game,
of
not seeing
I
see the
game.”
THE
writing, and reading, of yet another article on the judicial
process surely requires justification. After all, law
is
not merely
a
courtroom phenomenon. Have we not
for
too long ignored
or
trivialised the problems
of
“
impact,”
“
access,”
“
enforcement
”
and “response”? These are indeed priorities but it may yet
be
worthwhile to attempt to place the judicial
process
in
a
wider per-
spective, one which indudes more than court-room, chambers,
solicitor’s office or even neighbourhood law centre.
Of
course the twin paradoxes-of certainty and change and of
rules and people-have their awn intellectual fascination and
Pro-
fessor Ronald Dworkin’s
recent
contributions to the debate have
raised old questions in interestingly novel ways.a Notably he is
unwilling to accept simple
“
either/or
”
distinctions and he
has
given
new
prominence
to
the problem
of
controversy. Nevertheless
this article argues that controversy has not yet been sufficiently
emphasised in explanations
of
the judicial process. The image
of
law as an autonomous system
(“
caused by
”
or
“
reflecting
”
social
conditions
in
the more trendy accounts) has been too powerfully
attractive.
It
suggests
a
simple dichotomy:
on
the one hand society,
its conditions and demands; on the other, the law.’ Further, the
problem for the judge
is
reduced to either
“
which horse
do
I
ride?
”
or
“
how can
I
ride both at once?.”
In
either case there are two,
and only two,
separate
horses.
By contrast,
“
society
”
may
be
viewed, not
as
a
coherent unity,
but
as
fragmented and deeply divided.
On
this view the
appearance
of the law as relatively coherent, its ostensable consistency, is prob-
lematic, and no less
so
tban the inconsistencies that are the lawyer’s
more usual concern.
To
the extent that the law is
a
product
of,
and
largely reproductive
of,
a
particular social ordering, its autonomy
is less absolute than is often thought. Should not the simple dicho-
tomy be rejected
as
a
seriously misleading description which
is
1
R.
D.
Laing,
Knots
(1971),
p.
1.
2
They are now collected in Dworkin,
Taking Rights Seriously
(1977) (hereafter
“TRS”);
see
also Dworkin,
“NO
Right Answer?
”
in
Hacker and
Raz
(eds.),
Law,
Morality and Society
(1977), p.
58.
3
Raymond Williams,
Marxism
and
Literature
(1977) argues that many materialist
and idealist accounts share this tendency to naive dualism
(see
p. 59).
See
also
Campbell,
“
Legal Thought and Juristic Values
”
(1974)
1
British
Journal
of
Law
and Society
13
and Aubert;
“
Competition and Dissensus: Two Types
of
Conflict
and of Conflict Resolution (1963) VII Journal
of
Conpict Resolution
26 at p.
33
et
seq.
660
Nov.
19781
A
“KNOT”
IN
THE
SOCIAL
BOND
661
consequently unlikely to produce any worthwhile prescription for
contemporary adjudicators? Regrettably the more complex the
process the more difficult
it
is
to
understand and describe; never-
theless an explanation’s mere simplicity is ‘insufficient reason
for
postponing inquiry. The broad strategy here adopted is first to look
at some aspects
of
social controversy and conflict, then to look at
their implications for the fundamental
notion
of
legitimacy and
finally
to
focus
on
the role of the individual judge
in
the “hard
case,” the kind
of
case which overtly challenges the ostensible
consistency and autonomy
of
the law.
I.
A
SENSE
OF
CRISIS
In
the first
of
his 1978 Reith Lectures, Professor
A.
H.
Halsey
referred to
“
the oomprehensive proposition that British sosiety
faces imminent disaster.”
A
multitude
of
less comprehensive
perceptions contribute. Entry into the European Economic
Cm-
munities, the devolution debate and the Labour Government’s
accommodation with organised labour seem to threaten Parlia-
mentary sovereignty, a once inviolable symbol
of
the liberal ideal.
Party politics
are
seen to be unrepresentative and bankrupt,
bureaucracy to be vast, inefficient, sometimes oppressive, some-
times corrupt. Scientific and technological developments seem to
generate
new
problems
as
quickly
as
they solve old
ones.
The
economy cycles ever downwards.
In
frustration the politics
of
pressure groups and protest have grown rapidly and now involve the
respectable, articulate and influential as well as the ~nderprivileged.~
In
these politics obedience to the law is
no
longer axiomatic and
violent confrontations are not infrequent. Racial and religious
differences are significantly evident where tensions are greatest.
British society is nd unique
in
this respect; in one way
or
another
a
sense of crisis pervades the western world.
Our concern here is not with the accuracy
of
such perceptions.
For
our
purposes it matters only that they exist and are widely
felt.
In
sum
they amount to anxiety that the social bond is badly
frayed, that the foundations have cracked, that the whole house
of cards may
soon
collapse.
4
The Listener,
January
12, 1978,
p.
37.
5
See
Halsey, “The Rise of Party,”
The Listener,
February
2, 1978,
p.
144.
At
the Winchester
M.3
public inquiry, Mr. John Thorn, the headmaster of Winchester
College, was ejected
for
disorderly conduct;
sea
The Times,
hly
14,
1976.
In a
letter to that paper the previous day, he had said,
‘‘
It
is
the belief that all this is
not
democracy, is
not
justice,
is
not
free speech that has prompted the respectable
citizens of Winchester to behave with such uncharacteristic clamour.
It
is a dangerous
weapon they
use
and they know
it.”
Mr.
C.
D. Ellis, an old Wykehamist, replied on
July
16, 1976,
“The tradition
of
digni5ed restraint and civiliised rationality is one
which we must look increasingly
to
our
educational institutions
to
preserve;
if
they
cannot, who will?”
6
See Form,
The Death
of
the
Law
(1979,
Smith,
‘‘
Is there a Prima Facie
Obligation
to
Obey the Law?
”
(1973) 82
Yale
L.
J.
950,
Kadish and Kadish,
Discretion
to
Disobey
(1973),
Rawls,
A
Theory
of
Justice
(1972),
pp.
363-391,
Dworkin,
TRS,
pp.
206-222.
VOL.
41-(6)
2
To continue reading
Request your trial