Ideology, Law And

Ideology is a set of ideas that reflect the social, political, and legal order of a given society; ideology also shapes society to some degree, including the content of its laws and legal institutions. Ideology can work with or against legitimacy in that ideology serves to justify and to realize—or to disqualify and to undermine—law and order. Neither in the past nor in the present has a universally accepted concept of ideology (and its relation to law) existed.

A preliminary formulation of an ideological conception is found in the theory of idols that Francis Bacon (1561–1626) developed in Novum Organum(1620: I, 49, 92). A person's will as well as affections affect human understanding; from it one derives the various sciences, which should be distinguished from the four classes of idols that beset one's mind. Bacon failed to connect these idols with law or jurisprudence, but he did mention the habit of jurists to be suspicious in all human affairs.

Antoine Destutt de Tracy (1754–1836) used the French term idéologie (from Greek eidos) publicly for the first time in a lecture in Paris in 1796. Influenced by John Locke (1632–1704) and the grand idéologisteÉtienne Condillac (1714–1780), Destutt de Tracy elaborated a systematic science of ideas as distinct from a people's prejudice; he published his fundamental Eléments d'idéologie in five volumes between 1801 and 1815.

Since Destutt de Tracy and his followers tried to use their liberal, antimonarchic, and anticlerical theories to shape official policy—especially in regard to the educational system of France—they clashed with Emperor Napoléon (1769–1821). The emperor called them phraseurs idéologues and ridiculed them as fanatics, players with empty ideas, and dangerous blabbers. Thomas Jefferson (1743–1826) and John Adams (1735–1826) were aware of the theories of Destutt de Tracy and of Napoléon's defamation against him.

Although these ideas of ideology are primarily of historical interest, the present debates within the field of legal theory link law with ideology as developed since the nineteenth century. The starting point here is the influence from the social philosophy of Karl Marx (1818–1883) and his colleague Friedrich Engels (1820–1895). Fully aware of Napoléon's contempt for the French ideologues, Marx used the German term Ideologie for the first time in his doctoral dissertation. In it he translated a badly handed down quote from Epicurus (342–270 BCE) as follows: “Our life needs neither ideology nor empty hypotheses in order that we may live without entanglement.” In attacking the situation then in existence, in which press freedom did not prevail, Marx urged in 1843 to take the world as it is and not to be ideologues.

Nevertheless, right from the beginning of Marx and Engels's elaborate process of materialistic and dialectic weltanschauung, the concept of ideology (including its relation to law) played an integral and ever developing [Page 726]part in the body of their work, without, however, comprising a self-contained theory. It is equally futile to look there for definitions. In Marx's introductory remarks on a group of several manuscripts (fully published only in 1932 in Berlin as Deutsche Ideologie), Marx claimed in 1845 that the producing of ideas and concepts in the language of politics, laws, ethics, religion, and metaphysics (as well as all the rest that makes up ideology) reflects real-life processes. Ideology is first of all an integral part within the material communications of human beings. It is a juridical illusion that law is based freely on will—divorced, as it were, from its real origin; law possesses just as little an independent history as religion does. Civil law thus develops simultaneously along with private property, and the state is the form in which individuals of a ruling class assert their common interests. Marx concluded that the “ideologists turn everything upside down” (Cain and Hunt 1979: 142).

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