Total Justice

3. The Birth of a Modern Legal Culture

3 THE BIRTH OF A MODERN LEGAL CULTURE THE CENTRAL PROPOSITION of this book is that social change leads to changes in legal culture, which in turn produce legal change. What has happened, in the last century or so, to American legal culture? A few words should be said at the outset about modern society, which I will contrast with two other types of society. All three types are idealized constructs, exaggerated for purposes of argument. No human society is simple, although some are more complex than others. Societies are also, in a way, always both logical and illogical. Their features and behavior patterns are coherent and form definite cultures. But at the same time, all societies are illogical in many ways. They have not been deliberately and rationally designed; rather, they simply evolve, and not with an eye to fitting into little boxes social scientists contrive. Traditional society ranges from hunters and gatherers all the way to relatively sophisticated communities in medieval Europe. All these societies, however, have certain traits in common. Primary groups38 THE BIRTH OF A MODERN LEGAL CULTURE 39 people in face-to-face contact-dominate social existence. Tradition rules most areas of life, and governs much of a person's behavior. Most norms of conduct are unwritten; people learn them without going to school, and follow them without threat of the policeman's club. Public opinion is a powerful force, molding behavior and reinforcing the old ways of life. There has been much discussion of the role of law in traditional societies. Some societies have so little formal structure that it is hard to identify anything like a legal system. I Other traditional societies do have courts, judges, mediators, and even jails. 2 Traditional societies make heavy use of punishments that enlist public opinion; punishments that emphasize shame, for example. The pillory and the stocks of Puritan Massachusetts are famous instances. Traditional societies are tight and close-knit; they are extremely social. At the other end of the scale would be a society (if one could call it that) made up entirely of isolated individuals or families, completely self-sufficient, a law unto themselves. Man is a social animal, and in a pure form no "society" of absolute individuals can exist. It is not normal for people to live outside of communities, even in isolated family units. The American frontiersman, as conventionally pictured, was about as close as anyone could get to life in a society of isolates. There were some people who deliberately avoided cities and towns, living in log cabins in the wilderness, far from civilization. They grew or caught their own food; the women made clothing for the family out of homegrown materials; the family lived entirely on its own; husband and wife educated their children; they did not form part of a larger "society" in most senses of that word. Modern society, in some ways, falls between these two societal types. As in a traditional society, people live in communities and depend upon others. For the most part, people live in family groups or in close networks of friends. Their most important relationships are face-to-face, intense relationships with family, coworkers, and friends. Psychologically, however, many people look to the frontiersman (or their image of the frontiersman) as a model: the independent person, the radical individualist not beholden to anybody, the person who lives life as he or she sees fit, the free spirit, the nonconformist. Moreover, the country is big, the population is mobile, and it is easy to break loose from one's primary group, choose a new life and identity, and 40 TOTAL JUSTICE start over in a new place. This was almost impossible in traditional society. Modern man (or woman), then, can at least think about radical individualism, though few ever get as far as to act out that fantasy. Mostly this is because people cannot tolerate a truly isolated life. Few have the skills to make it on their own; most of us would not last a week, in a wilderness. The closest we can come is a more or less rootless, isolated life in the city; this too takes its toll. But quite apart from what isolation costs psychologically, the conditions of modern life foster dependence. The characteristic trait of modern society is enormous division of labor. Each person has his or her own tasks. People do not grow their own food...