Ideology plays a central role in both law and legal theory. The most elemental human distinctions – right and left, red and blue – are popular shorthand for political creeds. Candidates for office are said to face two challenges: “rallying the base” and “reaching across the aisle.” The first requires the emphasis of deep ideological divisions; the second, the suggestion that a wise lawmaker can transcend them. Despite their apparent contradiction, both strategies accept the
political primacy of ideology.Judges, by contrast, often describe their role as uniquely free from ideology, because (they say) their legitimacy depends upon their neutrality. Chief Justice Roberts famously compared a good judge to a baseball umpire, anonymously striving to ensure that everyone knows and obeys the accepted rules. Most citizens endorse this model of judging, and describe controversial decisions – Roe v. Wade for some, Bush v. Gore for others – as a departure from it.
Most legal scholars, however, doubt the descriptive accuracy and normative plausibility of an account in which judges merely apply the self-sufficient law. Many scholars – and some judges – respond to the specter of an ideological judiciary by introducing norms from outside the law as an aid to umpiring. Meanwhile, critical theorists maintain that neither rights nor economic efficiency nor any other principle can be ideologically neutral yet practically decisive. At all levels of debate, ideology remains a central preoccupation in both the practice and the study of law.
Strikingly, since World War II, social scientists have paid no mind to ideology. They were convinced that the concept lacked coherence and stability. That view is now rapidly changing, as social psychologists and other mind scientists have begun to study the characteristics and situations of people drawn to different dogmas. Indeed, John Jost recently declared “the end of the end of ideology” for the field. The latest research suggests that ideology is more a manifestation of implicit processes, motives, and human needs than a product of careful reasoning and explicit choices. Ideology, the new evidence suggests, is one of the names we give to causal forces beyond our grasp. When we embrace an ideology or claim to rise above it – whether as citizens, judges or scholars – our efforts are motivated and often undermined by our social and psychological situations.
At the Second Conference on Law and Mind Sciences on March 8 2008, leading social scientists and law professors will present their research and discuss the implications of a psychological understanding of ideology for politics, law and legal theory. To register or to learn more details, go to the conference webpage.
We will post the tentative conference agenda later this week.
The Situationist 