## 1. Liberal Concepts of Ideology




What is ideology? The term was likely coined by the French thinker
Claude Destutt de Tracy at the turn of the nineteenth century, in his
study of the Enlightenment. For De Tracy, ideology was the science of
ideas and their origins. Ideology understands ideas to issue, not
haphazardly from mind or consciousness, but as the result of forces in
the material environment that shape what people think. De Tracy
believed his view of ideology could be put to progressive political
purposes, since understanding the source of ideas might enable efforts
on behalf of human progress (see Steger 2007, 24-32).




Ideology today is generally taken to mean not a science of ideas,
but the ideas themselves, and moreover ideas of a particular kind.
Ideologies are ideas whose purpose is not epistemic, but political.
Thus an ideology exists to confirm a certain political viewpoint, serve
the interests of certain people, or to perform a functional role in
relation to social, economic, political and legal institutions. Daniel
Bell (1960) dubbed ideology 'an action-oriented system of
beliefs,' and the fact that ideology is action-oriented indicates
its role is not to render reality transparent, but to motivate people
to do or not do certain things. Such a role may involve a process of
justification that requires the obfuscation of reality. Nonetheless,
Bell and other liberal sociologists do not assume any particular
relation between ideology and the status quo; some ideologies serve the
status quo, others call for its reform or overthrow.




On this view, ideology can shape law, but a variety of ideologies
might be vying for legal mastery; there is no necessary connection
between law and a particular ideology. Law need not be understood as
compromised, since law being ideological might just refer to the
institutions of popular sovereignty, where public policy reflects
citizens' principles and beliefs; ideology would in that case just be a
shorthand way of referring to the views of citizens that are
legitimately instantiated in the laws of the land. Nonetheless, Bell
argued that a postwar consensus on capitalism and liberal democracy
might spell the 'end of ideology.'


## 2. Radical Concepts of Ideology




A more critical understanding of law's relation to ideology, and the
role and purposes that ideology serves, is found in the writings of
Karl Marx and Friedrich Engels. Like De Tracy, Marx and Engels contend
that ideas are shaped by the material world, but as historical
materialists they understand the material to consist of relations of
production that undergo change and development. Moreover, for Marx and
Engels, it is the exploitative and alienating features of capitalist
economic relations that prompt ideas they dub 'ideology.'
Ideology only arises where there are social conditions such as those
produced by private property that are vulnerable to criticism and
protest; ideology exists to protect these social conditions from attack
by those who are disadvantaged by them. Capitalist ideologies give an
inverted explanation for market relations, for example, so that human
beings perceive their actions as the consequence of economic factors,
rather than the other way around, and moreover, thereby understand the
market to be natural and inevitable. Members of the Frankfurt School
such as Jurgen Habermas drew on the Marxist idea of ideology as a
distortion of reality to point to its role in communication, wherein
interlocutors find that power relations prevent the open, uncoerced
articulation of beliefs and values.




Thus ideology, far from being a science, as De Tracy contends, or
any set of action-oriented beliefs as Bell puts it, is rather
inherently conservative, quietist, and epistemically unreliable.
Ideology conserves by camouflaging flawed social conditions, giving an
illusory account of their rationale or function, in order to legitimate
and win acceptance of them. Indeed, on this view of the ideological
role of law, in a just society there would be no need for a mystifying
account of reality, and thus no need for law. The concept of law as
ideology is thus central to the Marxist view that law will wither away
with the full flowering of communism (Sypnowich 1990, ch. 1).




The negative view of ideology taken by Marxists might suggest a crude
conception where legal ideology is a tool cynically wielded by the
powerful to ensure submission by the powerless. However, it offends
the "conception of right," if "a code of law is the
blunt, unmitigated, unadulterated expression of the domination of a
class" (Engels, letter to C. Schmidt, October 27, 1890). And
because ideology such as law takes a formal and normative form, the
powerful are in its grips too, persuaded by an account of the
inevitable and just order from which they profit. Moreover, ideology
is no mere fiction; it is produced by real social conditions and
reflects them. Ideology thus must succeed in constituting a consensus
about capitalism, and it must do so by giving expression to
capitalism's recognizable features. Equality before the law, for
example, is both elicited by, and reflects, the reality of capitalist
economic relations, even if it is an equality that is formal and
incomplete. Consent will not be forthcoming if legal ideology bears no
relation whatsoever to the social conditions it seeks to justify. The
idea that ideology inverts reality is important here. In his camera
obscura metaphor in *The German Ideology*, Marx contends that
reality appears upside down in ideology, much like the photographic
process provides an inverted image. The inverted image is telling; it
is a recognisable depiction of reality, even if it is at the same time
a distorted one ((Marx and Engels [TGI], 25). Karl Mannheim (1936)
elaborated further on the idea of the complex relation between reality
and ideology by pointing to the human need for ideology. Ideologies
are neither true nor false but are a set of socially conditioned ideas
that provide a truth that people, both the advantaged and the
disadvantaged, want to hear.




In the 1920s, American jurisprudence came under the influence of
another version of the critical view of ideology and law. The school of
legal realism abandoned Marx's specifically historical materialist
explanation, but took up the idea that social forces outside the law
are central in determining what the law is (see Cohen 1935, 818-21). Realists opposed
traditional 'formalist' accounts of adjudication, where
judges are understood to rely on uniquely and distinctively legal
materials in rendering their judgments. Instead, the realists contended
that law is inherently indeterminate, and thus judicial decisions must
be explained by factors outside the law. Ideology emerges as one kind
of realist explanation, where judicial decisions are the effect of
political ideas, be they of the judge, the legal profession more
generally, societal elites, or majority public opinion. The realists
aligned their critique of law with a progressive politics. The
inevitable influence of factors external to the law meant that social
and political changes augured by the emerging welfare state were no
threat to the purity of law. Indeed, the expanding regulative power of
the administrative state would make it more likely that the influences
on the law were now those of popular sovereignty and social justice,
rather than the more nefarious influences of the past.




The view that law is a reflection of ideology was taken up again in
the 1970s and 80s, with the emergence of the Critical Legal Studies
movement. Critical Legal Studies was a radical school of thought
shaped by a number of influences: the Marxist and realist traditions;
the philosophical perspective of 'deconstruction;' and the
politics of issues such as feminism, environmentalism and anti-racism.
The movement takes up the realist idea that law is fundamentally
indeterminate, and echoes Marxist views about how the interests of the
powerful shape law. Exponents offer some astute observations about the
ways in which law is taught and practiced in order to give the
misleading impression of law's certainty and legitimacy. Particular
legal doctrines are targeted for papering over the inconsistent and
arbitrary features of legal decision-making; the rule of law, for
example, is criticized for a naive view of the form of law as
unaffected by law's content and the social context in which law
operates. The indeterminacy of law can produce a variety of results;
Duncan Kennedy, for example, points out the surprising ways in which
the ideology of formal legal reasoning can remedy injustice, even if
ideology often disables such remedies as well (Kennedy 1976). Thus the ideology view
can now be taken to reflect a consensus among radicals of all stripes
on the role of law as a dissembling force to safeguard the unjust
relations of the status quo.


## 3. Ideology and the Sources of Law




The well-known debate about the sources of law appears to be radically
undercut by a view of law as ideology. The sources debate has usually
been posed in terms of the extent to which morality is intrinsic to
the definition of law. Natural lawyers argue that what is law must
partly depend on moral criteria. Following Thomas Aquinas, the
traditional criteria have not strayed far from the teachings of the
Roman Catholic Church, but more recent natural law arguments, such as
those of Lon Fuller and Ronald Dworkin, have proffered secular
standards emanating from the procedural ideals of the rule of law or
the constitutionalism of American liberalism. All natural lawyers,
however, are agreed that what the law is must be determined, in some
sense, by what the law ought to be.




Positivists, in contrast, have argued that what is law is determined
only by the institutional facts internal to a legal system, facts that
may or may not meet moral standards. Early positivists, such as Thomas
Hobbes and John Austin, argued that even the legitimacy of law did not
depend on moral criteria; law must be obeyed, however much it falls
short of moral ideals. More recent exponents, such as H.L.A. Hart and
Joseph Raz, have argued that legal positivism is committed only to the
idea that because what is law is a factual question, law's legitimacy
can be determined by moral criteria outside the law that might
recommend disobedience. All positivists, however, are agreed that,
although law may meet moral criteria, what the law is and what it
ought to be should be kept distinct.




The natural law and legal positivist positions are united, however, in
the aim to provide a concept of the essence of law. This endeavour
supplies them with a common enemy in the view of law as ideology,
which finds trying to determine the essence of law as fundamentally
misconceived. After all, if law is inevitably shaped by ideas
emanating from power relations outside of the law, then it would seem
that law has no essence, be it moral or institutional. If law is
reduced to ideology, or seen as its mere effect, then legality looks
contingent and unprincipled, having no necessary content or
definition, no intrinsic character. If law both mirrors and distorts
the realities of power, it is power, not principles of legality, which
tells us what law is. Thus for most mainstream legal theorists, the
ideological is no necessary feature of the law, and law should
certainly not be defined according to the radical conception where
intrinsic to law is a mystification of reality, or an obfuscation of
social relations in order to exact compliance.




The picture is more complicated, however. The Marxist view of law as
ideology does, after all, have some affinities with rival views on the
sources of law. The Marxist view concedes to the positivist, for
example, that law emerges from the practices of society, though the
practices are extra-legal - political, economic and social - rather
than the practices of institutional facts internal to a legal
system. Social forces are ultimately determining of the content and
form of a legal system. Indeed, the Marxist Louis Althusser's idea of
ideological state apparatuses (Althusser 1971) has a positivist flavour in its
insistence that political reality can be exhaustively described by
reference to structures rather than norm-bearing agents. We might
expect that the radical exponent of ideology would resist the
combination of a positivist-ideology view. The radical would find in
the positivist emphasis on institutions a too uncritical attitude to
the ideological structures that shape those institutions. But it seems
possible that the positivist position could be interpreted to remove
any ascribing of legitimacy to the institutions that define law in
order to accommodate the critique of the radical ideology
position.




As for the natural law position, the Marxist view of law as ideology
concedes to the natural lawyer that law is normative. What is
ideology, after all, but a set of values and ideals? However, on the
Marxist view, the norms are defined in terms of the interests they
serve, rather than the justice they embody. Law is normative, but it
is certainly not moral, the Marxist insists against the natural
lawyer. The critical aspect of the radical ideology view suggests an
impasse between the natural lawyer and the ideology position that is
more difficult to overcome than in the positivist case.




Of course, natural lawyers and positivists could quite easily find
room for the liberal view of ideology as an action-oriented system of
beliefs as a supplement to their views about the sources of law, in the
sense that ideology is part of the sociological landscape to which
their concepts of law apply. Natural law can find popular expression in
a society's ideology, and positivist legal institutions might reflect
ideological beliefs.


## 4. Ideology and the Rule of Law




All this points to another and related tension. This is the tension
between the radical ideology view and the concept of the rule of law, the
centrepiece of a liberal legal order. At their most basic, the terms
the rule of law, due process, procedural justice, legal formality,
procedural rationality, justice as regularity, all refer to the idea
that law should meet certain procedural requirements so that the
individual is enabled to obey it. These requirements center on the
principle that the law be general, that it take the form of
*rules*. Law by definition should be directed to more than a
particular situation or individual; as Lon Fuller notes, the rule of
law also requires that law be relatively certain, clearly expressed,
open, prospective and adequately publicised.




The view of law as ideology, even in its radical variants, would not
deny the presence of the rule of law in the liberal legal order;
indeed, the rule of law is often invoked as a paradigmatic example of
legal ideology. This is because, however, the rule of law is
interpreted as a device that serves the interests of the powerful;
moreover, it is a device that dissembles itself. The rule of law, in
its restraint on the exercise of governmental and judicial power,
facilitates the aims of those with power of other kinds, particularly
economic power. This is not a surprising argument, if one considers how
right-wing thinkers like Frederick Hayek (1971, 57-9) have lauded the rule of law
for its essential role in buttressing the free market. Left wing and
right wing thinkers are agreed, then, on the capitalist function of the
rule of law.




For the left-wing theorist of ideology, however, the rule of law
also has ideological aspects that mean it serves capitalist purposes in
more sinister ways. For in its restraint on political and legal power,
the rule of law implies that these public forms of power are the only
forms of power that exist, or at least the only ones that matter.
Moreover, in assuring the subjects of the law that that law is applied
with generality and certainty, the rule of law also implies that formal
justice is the only relevant kind of justice; that equality before the
law is identical to equality per se.




These claims about the rule of law and ideology are complex and need
careful scrutiny. Does the rule of law necessarily involve manipulation
on behalf of the capitalist order? Given its formal virtues, and its
agnosticism on the content of law, the rule of law seems innocent of
charges of a capitalist bias, or a bias of any kind. As Raz puts it,
the rule of law's virtue is like the virtue of a sharp knife; it
enables the law to fulfill its function, whatever the function might
be (Raz 1979). Moreover, it is hard to see how the rule of law itself is engaged
in any project of deception. Generality in the law, for example, does
not necessarily entail any particular commitments on how the economy or
society should be organized; nor does it propagate falsity or error.
Nonetheless, it is true that the proceduralism of the rule of law can
be put to ideological purposes, to deflect social criticism and prevent
radical change. And if enthusiasts of the rule of law place enough
emphasis on procedural justice, this can reduce the likelihood that
more substantive conceptions of justice will have success.
Historically, societies governed by the rule of law have tended to be
structured by capitalist markets, suggesting an affinity between the
two sets of institutions. The rule of law can have an ideological
effect even if it is not ideological in its essence.


## 5. Ideology and Justice




The idea that law is ideological is an important contribution to legal
scholarship. First, it enables a more critical view of the law and its
role, and thereby demystifies a set of vital social
institutions. Second, it points to the importance of sociological and
political factors in our understanding of the law. Legality is shaped
and influenced by non-legal aspects of society, and law, in turn, has
an impact on society and social change, not just in the obvious
effects of particular judgments, but in the political culture that a
legal system helps produce.




The Marxist view of law as ideology risks, however, an unhelpful
reductionism. Conceiving of law as ideological above all else in the
Marxist sense can promote a crude and erroneous understanding of the
relation between power and legality, where law serves only the
interests of the powerful and where legal guarantees are mere
shams. Moreover, this can license a cynicism about the law that is
paradoxically contrary to the emancipatory aims of the radical
politics that was the impetus for the critique of law as ideology in
the first place. That is, radical critics risk dismissing altogether
the possibility of legal resources for remedying injustice.




Furthermore, the cynicism of some ideology views is in fact the fruits
of a kind of utopianism about law, for it counters the bleak portrait
of legal ideology manipulated on behalf of the powerful with an ideal
society without ideology or law, where human beings' relations to each
other and to reality are transparent and conflict-free. The 'end
of ideology' thesis, advanced by Bell in a triumphalist spirit on
behalf of liberal capitalism, but interestingly even more salient in
Marxist ideals of communism, might be wrong in its assumption that
human beings can transcend ideology. Indeed, the radical concept of
ideology ultimately casts doubt on the likelihood that individuals' beliefs can
ever provide an objective account of reality, untainted by distorted and
self-justifying processes of inquiry.




How then, can the concept of ideology be deployed in legal
scholarship? In fact, the more subtle critiques of ideology grasp the
extent to which both liberation and manipulation can be embodied in the
law. Recall the nuanced conception of Marx and Engels, where ideology
gives an inverted image of reality, but a recognizable image
nonetheless. This suggests that the ideals of legality are not a mere
charade but are instantiated in the law, if only in a partial and
incomplete form. The Marxist historian E.P. Thompson (1975, 265) made this point in
his argument for the universal value of the rule of law. Thompson
contended that in order for law to function as ideology it must
proffer some genuine moral value.




To illustrate, consider how someone's cruelty might be masked by
polite manners; this does not demonstrate that good manners have no
worth. Legal ideology, too, might paper over injustice in ways that
serve justice nonetheless. A functional argument about ideology, then,
must concede the value of the phenomenon that serves ideological aims.
Ideology cannot be devoid of emancipatory aspects altogether; if law
trumpets justice, equality and freedom, then it must succeed in
realizing these ideals, however imperfectly, in order for law to
function as ideology. We can thus appreciate legal guarantees of a
procedural kind for the genuine protection they offer the subjects of
the law, whilst at the same time conceding the quietist politics that
proceduralism might engender.


 The values of legal proceduralism have had considerable influence
on political philosophy, particularly liberalism. We saw that in his
critique of the welfare state, Hayek contended that law's
procedural rules dictated a laissez-faire economy in which the state
is expected only to provide a framework for private initiatives.
Left-wing liberals such as Rawls and Dworkin, in contrast, insist that
the state properly plays a role in remedying economic disadvantage.
Rawls was concerned that citizens enjoy the genuine
'worth' or 'fair value' of equal political
liberties (Rawls 2007, 148-9). Moreover, he also took the view
that both liberal democratic socialism and a property-owning democracy
were candidates for realizing his principles of justice. Articulating
this as an effort to find an 'alternative to capitalism'
(2001, 135-6), Rawls was picking up on the claim in his
political philosophy lectures that Marx's idea of 'freely
associated producers' involves a 'democratic economic
plan' (2007, 372).




Nonetheless, Rawls's political liberalism does not reject
Hayek's counsel altogether, retaining a preoccupation with
keeping the state at bay. In particular, Rawls contends that
'the basic institutions and public policies of justice'
should be understood as 'neutral with respect to comprehensive
doctrines and their associated conceptions of the good' (2001,
153n27). Rawls's 'neutrality of aim' (2001, 153n27)
reflects what Raz dubbed (1994, 46) an 'epistemic withdrawal
from the fray' which dictates that the scope of the political be
constrained by formal procedures: the decision process of the original
position; the tenets of public reason; or political liberalism's
explicit exclusion of considerations about the good life. Indeed,
Rawls's proceduralist ethic became especially prominent in his
later work, where the focus on constitutional questions over the
remedy of economic disadvantage attracted much critical comment (see
Barry 1995; Okin 1993; Williams 1993).




It should be noted that Rawls put much store by 'the good'
of a well-ordered political society (2001, 198-9) and admitted that
perfectionist views about valuable ways of living might play a role in
legislative decisions about 'suitably circumscribed
questions' such as the protection of wildlife habitat (2001,
152n26). However, he retained a traditional view of perfectionism as
in principle inegalitarian, involving the idea that 'some people
have special claims because their greater gifts enable them to engage
in the higher activities that realise perfectionist values'
(2001, 152). 'Egalitarian perfectionists' such as the
author of this entry, in contrast, argue it is human flourishing that
we should seek to make more equal in our theories of justice. On
this, doubtless controversial, view, the concern for impartiality in
the law should not be allowed to have 'imperialistic
designs' on all political questions (Sypnowich 2017, 85-7), so
that the community forfeits its responsibility to foster equal human
wellbeing.




Nevertheless, concerns about the ideological impact of proceduralism
do not call into question the valuable role that the rule of law
itself should play, even in the most ambitious egalitarian community.
The potential for a dismissive approach to law, perhaps, along with
the general decline of the influence of Marxism, accounts for why some
recent literature has avoided the term 'ideology' and
opted instead for terms like 'discourse' or
'narrative'. Such terms also suggest that law should be
understood in a political context, but they are less specific about
the nature of that context or its impact. This seems a loss.
Properly understood, the concept of ideology offers a nuanced and
illuminating approach to legality that gives a precise rendering of
the relation between law and politics that need not be nihilist or
reductionist. After all, a proper understanding of the ideological
role of law is compatible with other conceptions of how law is to be
defined or understood. This is particularly so if we recognize the
improbability of eliminating altogether ideological modes of
understanding. 




A conception of law as having a moral source, or a
source in a system's institutions, can be independent of a realistic
appraisal of law's ideological function, or the ideological process in
which laws are made. Indeed, radical critics of the 'war on
terror' waged by western governments have pointed to the value
of liberal legal ideals such as human rights and the rule of law at
the same time as they have noted the ideological purposes to which
such ideals are put. Both positivists and natural lawyers, so long as
they do not insist that their conceptions of law are exhaustive of
law's reality, can permit the influence of ideology, even in its more
radical interpretations. Law can be ideology as well as other moral or
institutional phenomena at the same time; indeed, law will probably
not succeed as ideology unless it is multi-dimensional in just this
way.