Roger Cotterrell

Anniversary Professor of Legal Theory, School of Law, Queen Mary, University of London

Law without a Soul?: Durkheimian Reflections on Law and Ultimate Values

Abstract:

Two diametrically opposed views of law have competed since the beginnings of legal sociology. Émile Durkheim asserted that ‘moral ideas are the soul of law’ and tried to justify that claim sociologically, showing precisely where modern law’s ‘soul’ had to be found. By contrast, Max Weber saw modern law as having entirely lost its ‘metaphysical dignity’; with the collapse of natural law it had become no more than a technical means of compromising conflicting interests. This tension between moral-expressive and instrumental-technical images of law runs through all modern legal thought. This paper reflects on some striking current illustrations of the tension. It comments on recent debates about the dangers of ‘legal instrumentalism’, on ‘human rights talk’ as practical moral expression in law, and on an implicit morality often unrecognised but indispensable in everyday legal analysis. Ultimately, the paper argues, examining topical illustrations, that law insufficiently ‘soulful’ in Durkheim’s sense can become incoherent, paralysed, directionless or incomprehensible. Legal instrumentalism is inevitable and necessary, but beyond a certain point it becomes self-defeating.

Bio:

Roger Cotterrell is Anniversary Professor of Legal Theory at Queen Mary University of London. His books include Living Law: Studies in Legal and Social Theory (2008), Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (2006) and The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (2^nd edn, 2003).

By: Laura Arnold
Last updated: Wednesday, 12 February 2014