The Republic of Choice: Law, Authority and Culture by Lawrence M. Friedman (review)

214 Canadian Review of American Studies Lawrence M. Friedman. The Republic of Choice: Law, Authority and Culture. Cambridge, MA: Harvard University Press, 1990. Pp. 239. If Lawrence M. Friedman has not yet earned the designation of grand old person-in achievement ifnot in years-of contemporary American legal studies, this most recent work will do much to propel him in that direction. The prolific Stanford professor, holder of the Marion Rice Kirkwood chair in law, has made his mark in divers substantive areas of legal academics, and can be said to be among the founders of, and greatest contributors to, the currently burgeoning interdisciplines oflegal sociology and legal history. With the publication of Total Justice (New York: Russell Sage Foundation, 1985) and now TheRepublic of Choice, he extends his considerable talents to a final frontier, the field of general social criticism, not quite philosophy but several cuts above polemic. Beginning with the (controversial) assumption, of which he is the foremost exponent, that law is fundamentally not autonomous, but closely reflects the society of which it is an integral part, Friedman poses the question: "What kind of a legal system, and what types of authority structures, does a society create when the ... glorification of free, open choice comes to dominate the culture ... "(3). He finds the "unspoken premise" of western culture is that law must facilitate a milieu for expressive individualism, a "republic of choice." One result is the recent and continuing explosion of law noted by many with reactions which range from unease to dismay, and frequently attributed to a lawyers' conspiracy. Friedman exculpates the lawyers, suggesting the growth is basically innocuous, more qualitative than quantitative: enhanced choice simply requires more "traffic rules;'' Along with these regulatory incursions into former "zones of immunity' (15) from legal process, law expands as it is used instrumentally to provide a safety net in the form of the welfare state; risk being antithetical to choice. Advances in technology having given us collectively the possibility of reducing individual life uncertainties, a cycle of citizen demand and governmental response has led to a legal culture in which the expectation of justice, subjectively defined as the right to choose one's life and define one's lifestyle, has become the catalyst. Extrapolating from Sir Henry Maine's famous status-to-contract thesis, Friedman takes the position that Western society has progressed from choicelessness to choice. Birth, ascription, the supernatural, tradition, and authority have given way to social atomization and self-actualization through law, consensual affiliation, and the cult of celebrity. The liberalism of the nineteenth century he depicts as but a way station in this post-Whiggish journey. Classical liberalism, with its emphasis on economic and political freedoms, was still trammelled by the internalized values of self-discipline and confonnity. As a case in point, modem religion, though currently BookReviews 215 experiencing a renaissance, is subtly but essentially different from that of our grandparents: "The mass of the faithful are no longer really faithful" (8). Religion todayis valued not for its truth but for what it can do for us-we must have personal choice even in matters spiritual. Our greatest taboos, Friedman argues, are no longer indulgence and intemperance , but immutability and irreversibility. In effect, the only choice that is illegitimate is that which denies others choice or one's own future choice. Selling oneself into slavery, for example, is against public policy-a telling indictment. Despite often overwhelming evidence to the contrary, the denizens of the Western worldtend to believe that people are, in general, the authors of their own fortune and misfortune, that merit and work will be rewarded, and that people create and worship celebrities as the manifest embodiment of this belief. Even the dispossessed clingto (some would say are coopted by) the illusion of choice and the concomitant discourse of rights. Totalitarians pay lip service to the ideology of choice while eradicating it in practice (one is reminded of the grandiose 'paper' rights provided byiron-curtain constitutions). Those who deny the reality of choice and the open society,such as Foucault and Marcuse, in effect pay homage to the ideal by so doing. Friedman recognizes that choice may be more apparent than...