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In the last chapter we focused on the meaning of legal autonomy and on the constituent elements of the ideal type. We noted two requisites for the autonomous application of law: judicial formalism and equal competence. But we also argued that the autonomous application of law does not guarantee that the law as applied will not perpetuate or advance socioeconomic differences. For applied law to be autonomous in this further sense, legal norms, in addition, must be status neutral, and the distribution of welfare in society must be such that the neutral norms do not disproportionately benefit some people. These latter requisites mean, in practice, that there must be substantial equality in the political, social, and economic structures external to the legal system. If there is not, the advantaged are likely to be able to use law to maintain or better their positions. The norms of property law, for example, will perpetuate existing class distinctions, and through contract law disparities associated with unequal bargaining power will penetrate the legal system.

The discussion of legal norms with which we concluded the previous chapter is a good bridge to this one. Here we are first concerned with the law creation process, the source of legal norms. In discussing law creation, our focus will be on the legislature rather than on the courts or the executive branch, although these latter actors can also make legal norms. We discuss at the outset the possibility of legislative autonomy and suggest that at one level a legislature can be partially autonomous but at another legislatures are inescapably oriented to the demands of nonlegal political, ethical, or social schemes. We next specify four types of law that vary with social equality and overt attention to status. Once we have specified the types of law, we consider how the law application process interacts with the legislative types to define styles oflaw that characterize legal relations in society. The basic concepts are developed at the level of ideal types, but approximations to the types can be found in the real world. Throughout this chapter issues of social justice are addressed, and in our conclusion we discuss the implication of this chapter and the preceding one for the realization of liberty and equality, the core components of justice from the Rawlsian perspective.


Reproduced with permission. Copyright 1986 University of Pennsylvania Press.