ISSN 1062-7421
Vol. 12 No. 4 (April 2002) pp. 208-211.

LEGALITY AND COMMUNITY: ON THE INTELLECTUAL LEGACY OF PHILIP SELZNICK
by Robert A. Kagan, Martin Krygier, and Kenneth Winston (Editors). New York: Rowman & Littlefield Publishers, 2002. 415 pp. Cloth $80.00 ISBN: 0-7425-1624-5. Paper $29.95 ISBN: 0-7425-1625-3.

Reviewed by Mark Kessler, Department of Political Science, Bates College.

In this valuable volume, twenty-three chapters written by prominent scholars in diverse fields, such as law, sociology, anthropology, political science, psychology, and philosophy, explore the intellectual legacy of Philip Selznick's interdisciplinary scholarship. Selznick's research and writings, beginning some sixty years ago and continuing to the present day, have contributed significantly to a variety of disciplines and interdisciplinary areas, including the political sociology of organizations,
e.g., TVA AND THE GRASSROOTS (1949), THE ORGANIZATIONAL WEAPON (1952), LEADERSHIP IN ADMINISTRATION (1957); industrial sociology, e.g., LAW, SOCIETY, AND INDUSTRIAL JUSTICE, (1969); law and society, e.g., LAW AND SOCIETY IN TRANSITION: TOWARD RESPONSIVE LAW, co-authored with Philippe Nonet, (1976); and moral and political philosophy, and jurisprudence, e.g., THE MORAL COMMONWEALTH (1992). Selections in this volume capture the overwhelming breadth, depth, and richness of Selznick's scholarship and demonstrate its enduring significance.

The book's title, LEGALITY AND COMMUNITY, expresses Selznick's quest to understand the relationship between the rule of law and community desires and
needs, often thought of as "the common good." Although selections in this volume approach the relationship between legality and community in diverse ways, most focus at least some attention on Selznick's concept of "responsive law," a concept at the center of a comparative and developmental framework he employs for understanding the evolution of the rule of law. Legal regimes differ in fundamental and identifiable ways, according to Selznick. They serve varied interests, values, and ends. In regimes characterized by "repressive law," law is intimately related to politics and power, furthering the interests of the politically powerful. In regimes characterized by "autonomous law," law and politics are separate, with law serving to constrain political power.

Authoritative decisionmakers, in such a regime, act and decide based on formal rules and precedents, disciplining the arbitrary and self-serving features of "repressive law" regimes. Consequently, this scheme provides a greater and more easily obtained legitimacy, but at the cost of losing sight of the substantive values, the ideals, that law may further. The tension, then, between the legal formalism of autonomous law and the desire for substantive justice produces a transformation, in some places at certain times, toward "responsive law," a regime characterized by actions and decisions

Page 209 begins here

guided by broad principles of public policy, principles seeking to further preferred values and ideals. A regime that decides important questions based on value choices, rather than clearly established precedential rules, runs the risk of reducing respect and authority for legal institutions. However, Selznick, influenced by legal realism, sociological jurisprudence, and the pragmatism of John Dewey, looks for conditions under which legal authority may develop the "moral competence" to accurately assess and reflect important societal needs and desires, to further the "common good," in ways that are socially and politically acceptable. To Selznick,
then, "responsive law" characterizes the desired relationship between legality and community.

The book opens with Martin Krygier's excellent introductory essay, a broad look at Selznick's many and varied intellectual contributions and the central themes than animate his work. Krygier sees this work as focusing on the fate of ideals in institutions, as he seeks to identify the conditions that assist and impede their realization. Much of Selznick's scholarship attends to the contribution of institutions and their ability to reflect, promote, and achieve these ideals. For Selznick, the rule of law is a most important arena in which such ideals, or values, get expressed. This can be seen not only in traditional legal institutions, such as courts and the decisions of judges, but also in every other type of public and private institution imaginable. Thus, Selznick writes extensively about the extent to which, and the conditions under which, law in legal institutions, political and governmental institutions, and private institutions may further important social values.

Four major sections follow the introductory essay. The first, "Basic Commitments," explores in greater detail one or more of the themes in Selznick's scholarship. A second section, "The Ideal of Legality," focuses on the relationship between the rule of law and the common good in his concept of "responsive law." These general theoretical ideas and issues are then applied to a variety of interesting case studies and institutional settings in a third section, "Legality in Particular Settings and the
Sociology of Institutions." Among other things, these selections look at employee participation in the governance of their workplace (Stephen M. Bainbridge, "Employee Involvement Postcollective Bargaining"), the factors that motivate people to follow corporate rules and policies (Tom R. Tyler, "Justice and Legitimacy in Work Organizations"), the role of law, courts, and nongovernmental organizations in regulating employment discrimination (Susan Sturm, "Remedying Organizational Discrimination"), efforts to reform police practices to bring them in closer proximity to democratic norms (Jerome H. Skolnick, "Democratic Policing and the Rule of Law"), and the role of corporate lawyers in distorting information about the impact of cigarette smoking on health (Martha Derthick, "The Lawyers Did It: The Cigarette Manufacturers' Policy toward Smoking and Health"). A final section, "The Search for Community," explores connections between Selznick's scholarly work and his commitment to a communitarian future and situates this scholarship in other work on law and community (e.g., Paul van Seters, "Law, Society, and
the Search for Community").


Not surprisingly, the diverse selections in this volume address Selznick's work in very different ways. Some examine central themes and assess their meanings and broader intellectual significance. Others discuss the authors' own published work and

Page 210 begins here

its intersection with themes articulated by Selznick. The chapters are consistently engaging, well conceived, and thought provoking. Together they demonstrate the great variety of questions, topics, and approaches that may be connected to the important body of scholarship they honor. For example, selections include an analysis of the relationship between bureaucracy and the rule of law (Lauren B. Edelman, "Legality and the Endogeneity of Law"), philosophical discussions of relations between law and substantive justice (Jeremy Waldron, "Does Law Promote Justice?"), consideration of the potential, as well as the dilemmas, faced by common law traditions in meeting community needs (David Lieberman, "Philip Selznick and the Common Law Tradition"), and intersections of Selznick's scholarship and the development of legal sociology in Japan (Kahei Rokumoto, "Philip Selznick's Conception of Law and Legal Sociology: A View from Japan").

Other intriguing chapters draw connections between Selznick's notion of "responsive law" and diverse studies conducted and previously published by the chapters' authors on politico-legal culture and judicial activity. For example, Robert A. Kagan ("On Responsive Law") explores some of the reasons why "responsive law" in the United States, compared to Western Europe, takes the form of "adversarial legalism," relying heavily on litigation, courts, and judges. Lawrence M. Friedman ("Legality and Its Discontents") looks historically at legality's evolution in the United States, focusing on its current manifestation in what he calls "total justice," a general expectation that all wrongs and injuries will be compensated through law. Patricia Ewick and Susan S. Silbey ("The Structure of Legality: The Cultural Contradictions of Social Institutions") extend Selznick's work on legality, developing a cultural, constitutive framework by which to examine "legal consciousness,"
the ways in which legality is understood and expressed by ordinary people as they use, avoid, and resist law. Malcolm Feeley and Edward Rubin ("Responsive Law and the Judicial Process: Implications for the Judicial Function") discuss the relation of judges' roles to "responsive" legal orders. Conceptions of judges' legitimate roles may shift from "discoverer of law' and "interpreter of law" to "moral educator" and "implementer of public policy" as legal institutions become more "responsive." In a regime of "responsive law" judges must show "moral competence," the capability to achieve purposes and further significant social values. The authors suggest
that judicial decisions they studied, ordering significant prison reforms, nicely illustrate the legitimacy of judges acting "responsively."

The influence of Selznick's distinctive and often innovative interdisciplinary scholarship shines through in both selections that focus on concepts he developed and those that apply and extend them to related areas. In his insistence that ideals are embedded in institutions and that social scientists should study the extent to which they are realized, he offers an early version of what has come to be known as the new institutionalism. In his insistence that law may be found in places other than legal institutions, he was among the first to focus attention on the ways that law emerges in diverse social settings and practices. Also, in his insistence that social
scientists consider ideals and values and ask broad theoretical and philosophical questions about the social world, he resisted the pull of positivist social science, encouraging scholarly work that promotes social justice in a way that some now call "postpositivist."

Page 211 begins here

The selections composing this volume offer excellent guidance through this important body of work. Many extend its insights in creative and significant ways. Taken together, this impressive interdisciplinary collection exhibits the very qualities in Selznick's scholarship underscored by Martin Krygier (p. 3), as "a distinctive combination of normative engagement, philosophical thoughtfulness, intimate familiarity with social theory, and sophisticated regard for data." Thus, this collection may be read in several ways--as a guide to Philip Selznick's scholarship; as an exploration of new and exciting research directions in such areas as comparative law and legal systems, legal culture, and legal philosophy; as an inspiration to those seeking to conduct politically engaged and significant research on the relation of law, institutions, and social change; and, finally, as a fitting tribute to a pathbreaking scholar.

**************************************************************************

Copyright 2002 by the author, Mark Kessler