Total Justice

Preface

PREFACE Total Justice was an attempt to explore and explain American legal culture. When I wrote this short book, the air was filled with shouts and complaints about how litigious we were in the United States. The same shouts and complaints can still be heard. I was then and am today skeptical about these claims. To be sure, law, lawyers, and legal institutions are central to American life. But I saw little hard evidence that people in this country were "litigious," in the sense of some sort of habit or addiction. Nonetheless, Americans do seem rightsconscious , on the whole; and American legal culture, in the contemporary period, has certain distinctive features that seem worthy of exploration. My aim in 1985 was not to praise or blame anybody; but to bore a hole into the core of our legal system and examine it as objectively as I could. What I found, or thought I found, made up the body of this book. The basic idea concerned a shift in legal culture-corresponding to a shift in general social norms-toward a culture of redress through law that I called the urge for "total justice." I tried to connect this urge with certain brute facts concerning the modern state and the social revolution that technology brought about. I became convinced that the trend toward "total justice," as I saw it, was in fact common to the whole Western world. It was not distinctively American, although perhaps it took a somewhat extreme form in the United States. Everything in the book depended on the simple but essential assumption that a living legal order is not "autonomous," or selfcontained . Rather, it is organic to whatever society it is located in, and it draws its vital juices from that society. Of course, some systems are better or more just than others; some are corrupt and inefficient, others less so. To understand a legal system, and what makes it tick, Vll Vlll PREFACE is not to excuse its shortcomings or to be complacent about the way it operates and what it does to people. But, in my view, unless we try to understand the social roots of the way things are, there is little hope of meaningful reform. I did not want my book to be thought of as right-wing or left-wing or any-wing, but as an honest search for the meaning of historical trends and events. Some people would consider such an aim naive or misguided. I do not. Since I wrote this book, nothing has changed in any essential regard . As I see it, the urge for total justice is a massive, powerful global force; and there are no signs that it can or will abate. Each generation defines freedom, liberty, the good life, in its own inimitable way. Total justice is one aspect of modern culture: most people are not aware of it on a conscious level. But it is a vital part of the actions and thoughts of countless men and women who use or aspire to use law. I hope this book has added, in some small way, to our understanding of the living legal order-or at least to the quality of the debate. LAWRENCE M. FRIEDMAN Stanford, California March 1994 ...