Legalism:Ideology And Political Liberalism

After the second world war, the international political trail which concerned about the main criminals has suffered an legal problem, named Evil Law is Legal, consequently, it arouse a debate which was about the relationship between German and France, and the debate was represented by Hart, representative of empirical analysis of law and Fuller, representative of natural law school. Judith N. Shklar created her work "Legalism:Law, Morals, and Political Trials" on reflection of this. In this book, she reveals that these theoretical problems have some kind of closely relationship with some potential ideology. The essence of the debate between these two law schools was an ideological confrontation, and behind this debate, there was a common ideology, that was legalism. She reveals the roots and limitations of these two law schools’ideologies respectively, and the limitation of the common ideology at the same time. The limitation were it believed the law was there objectively, and embraced "the law is supreme", besides, it emphasized "be loyal to the law" absolutely, which separated the connection between law and other social superstructures, and it could not offer reasonable argument to international political trial. With regard to this, Shklar did not turned against legalism, but put forward a new legal doctrine which revised traditional legalism. It is a kind of political liberal legalism. She stressed that "law is not above the political world, but just in it", that was to say, law services the politics, and she also emphasized to recognize the limitations of the traditional legal ideology, we should rightly understand the legalism as a ideological concept of "abide by the rules", it is not independent, detached, but exists in social continuum and coexists with other social political policies. And it can provide reasonable explanation for political trial only under the legal knowledge of political liberalism.In the "Legalism:Law, Morals, and Political Trials", Shklar began with ideology, revealed various of ideological mistakes and limitations of jurisprudence world at that time, and then put forward her own revised legal epistemology, showed her thought of political liberalism. Shklar’s ideology is a kind of potential and moderate ideology, which is different from that of the far-right and far-left, and widely exists in people’s ideology. She came up with the revised legal epistemology and her legal epistemology restored the traditional understanding about the relationship between law and moral, law and politic, which continued from Aristotle to Montesquieu, and only be changed and disrupted in the19th century when positivism rose. Shklar’s understanding about legal doctrine was political liberalism which pays special attention to the reality and stresses the protection of freedom of choice to diversity. As far as Shklar concerned, to safeguard individual freedom, we must guarantee the individualities’rights of choice, and respect and maintain the diversity of choice. Emphasis on diversity and tolerance is actually to emphasize the right of each different individuality, only in this way, the different individuality will not be deprived of his or her liberty under the oppression of single ideology of ignoring differences.