POWER, LAW AND SOCIETY by Edgar Bodenheimer


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The spectre of legal nihilism"" -- the rejection of ""law as a beneficial institution"" -- is haunting our land, and Bodenheimer, a professor of Comparative Law, has taken on the role of exorcist. Standing on a platform which he calls ""philosophical anthropology"" -- a shadowy discipline in which law, and the natural and the social sciences find a common interest -- he proclaims that human beings have a ""Will to Law"" -- the antithesis of Nietzsche's Will to (""naked"") Power -- which motivates a search for stability and precedent in an everchanging environment. To those who claim that the law is inherently conservative, he replies that it is Janus-faced, preserving past gains while progressively admitting the disadvantaged to equality. Bodenheimer sees the path of history as winding forever upwards -- healthy legal systems usually respond to pressures from disaffected groups which need not then resort to revolution. Bodenheimer's argument, however, strikes us as highly reductive -- the present choice is not an either/or situation (law-and-order vs. anarchy) -- but whether legal systems -- particularly the Anglo-American--are capable (or how they may be made capable) of responding to the basic and just needs of all members of society. For this conundrum Bodenheimer has no answer, except perhaps the antedated and misused liberal recourse to better ""social ethics.

Pub Date: Aug. 1st, 1973
Publisher: Crane, Russak