A Foreign Sound: Bourdieu, "The Force of Law: Toward a Sociology of the Juridicial Field"

[Jeffrey Rubard]

The Force of Law: Toward a Sociology of the
Juridical Field

Pierre Bourdieu

Da mihi factum, dabo tibi jus
A rigorous science of the law is distinguished from what is normally
called jurisprudence in that the former takes the latter as its object of
study. In doing so, it immediately frees itself from the dominant jurisprudential debate concerning law, between formalism, which asserts the
absolute autonomy of the juridical form in relation to the social world,
and instrumentalism, which conceives of law as a reflection, or a tool in
the service of dominant groups.
As conceived by legal scholars, notably those who identify the history
of law with the history of the internal development of its concepts and
methods, formalist jurisprudence sees the law as an autonomous and closed
system whose development can be understood solely in terms of its
"internal dynamic."10 This insistence upon the absolute autonomy of legal
thought and action results in the establishment of a specific mode of
theoretical thinking, entirely freed of any social determination. Kelsen's
attempt to found a "pure theory of law" is only the final result of the
effort of formalist thinkers to construct a body of doctrine and rules totally
independent of social constraints and pressures, one which finds its
foundation entirely within itself.11 This formalist ideology, the professional
ideology of legal scholars, has become rigidified as a body of "doctrine."
The contrary, instrumentalist point of view tends to conceive law
and jurisprudence as direct reflections of existing social power relations, in
which economic determinations and, in particular, the interests of
dominant groups are expressed: that is, as an instrument of domination.
The theory of the Apparatus, which Louis Althusser has revived,
exemplifies this instrumentalist perspective.12 However, Althusser and the
9. Give me the facts, and I'll give you the law.
10. See, e.g., J. BONNECASSE, LA PENSEE JURIDIQUE FRANÇAISE DE 1804 A L'HEURE PRESENTE, LES
VARIATIONS ET LES TRAITS ESSENTIELS (1933).
11. Kelsen's methodology, postulated upon limiting investigation to specifying juridical
norms and upon excluding historical, psychological, or social considerations, along with any
reference to the social functions that the operation of these norms may determine, entirely
parallels Saussure's, which founded a pure theory of language upon the distinction between
internal and external linguistics, that is, upon the exclusion of any reference to the historical,
geographic, and social conditions governing the functioning of language or its transformations.
12. A general review of Marxist work in sociology of law and an excellent bibliography

July 1987] FORCE OF LAW 815
structuralist Marxists are victims of a tradition that believes it has
accounted for "ideologies" simply by identifying their function in society
(for example, "the opiate of the masses"). Paradoxically, these
structuralists ignore the structure of symbolic systems and, in this
particular case, the specific form of juridical discourse. Having ritually
reaffirmed the "relative autonomy" of ideologies,13 these thinkers neglect
the social basis of that autonomy—the historical conditions that emerge
from struggles within the political field, the field of power—which must
exist for an autonomous social (i.e., a legal) universe to emerge and,
through the logic of its own specific functioning, to produce and reproduce
a juridical corpus relatively independent of exterior constraint. But in
the absence of clear understanding of the historical conditions that make
that autonomy possible, we cannot determine the specific contribution
which, based on its form, the law makes to the carrying out of its
supposed functions.
The architectural metaphor of base and superstructure usually
underlies the notion of relative autonomy. This metaphor continues to
guide those who believe they are breaking with economism14 when, in
order to restore to the law its full historical efficacy, they simply content
themselves with asserting that it is "deeply imbricated within the very
basis of productive relations."15 This concern with situating law at a
deep level of historical forces once again makes it impossible to conceive
concretely the specific social universe in which law is produced and in
which it exercises its power.
In order to break with the formalist ideology, which assumes the
on the subject can be found in Spitzer, Marxist Perspectives in the Sociology of Law, 9 ANN.
REV. Soc. 103 (1983).
13. Bourdieu refers here to Althusser's discussion of ideology and law in Ideology and
Ideological State Apparatuses (Notes Toward an Investigation), in LENIN AND PHILOSOPHY 127, 135-
36 (B. Brewster trans. 1971). "Relative autonomy" refers to the notion in certain versions of
Marxist theory that, although the economy (the "base") determines social existence "in the last
instance," certain aspects of social life—i.e., those taking place within the realm of what Marxism
has traditionally termed the social "superstructure," the realm of politics, the law, and
ideology—are relatively free of such determination by the economic "base," which tends to
intervene and dominate only when a crisis of overt conflict occurs between the economy and
other social levels. (Translator's note.)
14. "Economism" refers to a tendency within Marxist political practice to emphasize
economic determination so completely that other social elements—particularly ideological and
political—are simply neglected as irrelevant. (Translator's note).
15. See, e.g., E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT 261 (1975).
Thompson is a widely-known British Marxist historian, author of the classic MAKING OF THE
ENGLISH WORKING CLASS, 1963. He has written an important attack on Althusserian theory, THE
POVERTY OF THEORY AND OTHER ESSAYS (1978). (Translator's note).
816 THE HASTINGS LAW JOURNAL [Vol. 38
independence of the law and of legal professionals, without
simultaneously falling into the contrary instrumentalist conception, it is
necessary to realize that these two antagonistic perspectives, one from
within, the other from outside the law, together simply ignore the
existence of an entire social universe (what I will term the "juridical
field"), which is in practice relatively independent of external
determinations and pressures. But this universe cannot be neglected if we
wish to understand the social significance of the law, for it is within this
universe that juridical authority is produced and exercised.16 The social
practices of the law are in fact the product of the functioning of a "field"17
whose specific logic is determined by two factors: on the one hand, by the
specific power relations which give it its structure and which order the
competitive struggles (or, more precisely, the conflicts over competence)
that occur within it; and on the other hand, by the internal logic of
juridical functioning which constantly constrains the range of possible
actions and, thereby, limits the realm of specifically juridical solutions.
At this point, we must consider what separates the notion of the
juridical field as a social space from the notion of system, developed, for
example, in Niklas Luhmann's work.18 "Systems theory" posits that
"legal structures" are "self-referential." This proposition confuses the
symbolic structure, the law properly so called, with the social system
which produces it. To the extent that it presents under a new name the
old formalist theory of the juridical system transforming itself according to
its own laws, systems theory provides an ideal framework for the formal
and abstract representation of the juridical system. However, although a
symbolic order of norms and doctrines contains objective possibilities of
development, indeed directions for change, it does not contain within itself
the principles of its own dynamic.19 I propose to distinguish this symbolic
order from the order of objective relations between actors and institutions
in competition with each other for control of the right to determine the
law. For in the absence of such a distinction, we will be unable to
understand that, while the juridical field derives the language in which its
conflicts are expressed from the field of conceivable perspec16. Concerning the notion of "symbolic violence," see the Translator's Introduction,
supra. Such authority is the quintessential form of the legitimized symbolic violence controlled by
the State. (Of course such symbolic violence easily coexists with the physical force which the
State also controls.)
17. See Translator's Introduction, supra.
18. N. LUHMANN, SOZIALE SYSTEME: GRUNDRISS ElNER ALLGEMEINEN THEORIE
(1984); Luhmann, Die Einheit des Rechtssystems, 14 RECHTSTHEORIE129 (1983).
19. P. NONET& P. SELZNIK, LAW AND SOCIETY IN TRANSITION: TOWARD RESPONSIVE LAW (1978).

July 1987] FORCE OF LAW 817
tives, the juridical field itself contains the principle of its own transformation
in the struggles between the objective interests associated with these
different perspectives.
The Division of Juridical Labor
I
The juridical field is the site of a competition for monopoly of the
right to determine the law. Within this field there occurs a confrontation
among actors possessing a technical competence which is inevitably social
and which consists essentially in the socially recognized capacity to
interpret a corpus of texts sanctifying a correct or legitimized vision of
the social world. It is essential to recognize this in order to take account
both of the relative autonomy of the law and of the properly symbolic
effect of "miscognition" that results from the illusion of the law's absolute
autonomy in relation to external pressures.
Competition for control of access to the legal resources inherited
from the past contributes to establishing a social division between lay
people and professionals by fostering a continual process of rationalization.
Such a process is ideal for constantly increasing the separation between
judgments based upon the law and naive intuitions of fairness. The
result of this separation is that the system of juridical norms seems (both
to those who impose them and even to those upon whom they are
imposed) totally independent of the power relations which such a system
sustains and legitimizes.
The history of social welfare law (droit social)20 clearly
demonstrates that the body of law constantly registers a state of power
relations. It thus legitimizes victories over the dominated, which are
thereby converted into accepted facts. This process has the effect of
locking into the structure of power relations an ambiguity which
contributes to the law's symbolic effectiveness. For example, as their
power increased, the legal status of American labor unions has evolved:
although at the beginning of the nineteenth century the collective action of
workers was condemned as "criminal conspiracy" in the name of
protecting the free market, little by little unions achieved the full
recognition of the law.21
Within the juridical field itself, there exists a division of labor which is
established without any conscious planning. It is determined instead
20. In France, all law relating to social welfare is categorized as droit social, literally
"social law." (Translator's note.)
21. See Blumrosen, Legal Process and Labor Law, in LAW AND SOCIOLOGY 185-225 (W.M.
Evans ed. 1962).
818 THE HASTINGS LAW JOURNAL [Vol. 38
through the structurally organized competition between the actors and
the institutions within the juridical field. This division of labor constitutes
the true basis of a system of norms and practices which appears as if it were
founded a priori in the equity of its principles, in the coherence of its
formulations, and in the rigor of its application. It appears to partake both
of the positive logic of science and the normative logic of morality and
thus to be capable of compelling universal acceptance through an
inevitability which is simultaneously logical and ethical.
II
Unlike literary or philosophical hermeneutics, the practice of
interpretation of legal texts is theoretically not an end in itself. It is
instead directly aimed at a practical object and is designed to determine
practical effects. It thus achieves its effectiveness at the cost of a
limitation in its autonomy. For this reason divergences between
"authorized interpreters" are necesarily limited, and the coexistence of a
multitude of juridical norms in competition with each other is by definition
excluded from the juridical order.22 Reading is one way of appropriating
the symbolic power which is potentially contained within the text. Thus,
as with religious, philosophical, or literary texts, control of the legal text is
the prize to be won in interpretive struggles. Even though jurists may
argue with each other concerning texts whose meaning never imposes itself
with absolute necessity, they nevertheless function within a body strongly
organized in hierarchical levels capable of resolving conflicts between
interpreters and interpretations. Furthermore, competition between
interpreters is limited by the fact that judicial decisions can be
distinguished from naked exercises of power only to the extent that they can
be presented as the necessary result of a principled interpretation of
unanimously accepted texts. Like the Church and the School, Justice
organizes according to a strict hierarchy not only the levels of the judiciary
and their powers, and thereby their decisions and the interpretations
underlying them, but also the norms and the sources which grant these
decisions their authority.23
Thus, the juridical field tends to operate like an "apparatus" to the
extent that the cohesion of the freely orchestrated habitus24 of legal inter22. See A.J. ARNAUD, CRITIQUE DE LA RAISON JURIDIQUE 28-29 (1981); Scholz, La raison juridique à
l'oeuvre: les krausistes espagnols, in HISTORISCHE SOZIOLOGIE DER RECHT-SWISSENSCHAFT 37-77 (E.
Volkmar Heyen ed. 1986).
23. Mastery of such norms can be recognized, among other signs, in the art of maintaining
the order and style which have been recognized as proper in citing one's authorities. See
Scholz, supra note 22.
24. See the Translator's Introduction, supra, for discussion of the concept of habitus.

July 1987] FORCE OF LAW 819
preters is strengthened by the discipline of a hierarchized body of
professionals who employ a set of established procedures for the
resolution of any conflicts between those whose profession is to resolve
conflicts. Legal scholars thus have an easy time convincing themselves that
the law provides its own foundation, that it is based on a fundamental
norm, a "norm of norms" such as the Constitution, from which all lower
ranked norms are in turn deduced. The communis opinio doctorum (the
general opinion of professionals), rooted in the social cohesion of the
body of legal interpreters, thus tends to confer the appearance of a
transcendental basis on the historical forms of legal reason and on the
belief in the ordered vision of the social whole that they produce.25
The tendency to conceive of the shared vision of a specific historical
community as the universal experience of a transcendental subject can be
observed in every field of cultural production. Such fields appear as sites in
which universal reason actualizes itself, owing nothing to the social
conditions under which it is manifested. In The Conflict of Faculties,
Kant noted that the "higher disciplines"—theology, law, and medicine—
are clearly entrusted with a social function. In each of these disciplines, a
serious crisis must generally occur in the contract by which this function
has been delegated before the question of its basis26 comes to seem a real
problem of social practice. This appears to be happening today.27
III
Juridical language reveals with complete clarity the appropriation effect
inscribed in the logic of the juridical field's operation. Such language
combines elements taken directly from the common language and
elements foreign to its system. But it bears all the marks of a rhetoric of
impersonality and of neutrality. The majority of the linguistic proce25. According to Andrew Fraser, the civic morality of the body of judicial professionals was
based not upon an explicit code of regulations but upon a "traditional sense of honor," that is
to say, upon a system in which what was essential in the acquisition of the skills associated with
the exercise of the profession went without saying. See Fraser, Legal Amnesia: Modernism vs. the
Republican Tradition in American Legal Thought, 60 TELOS 15 (1984).
26. Some writers, such as Kelsen, have raised this question, albeit theoretically, thus
transposing into the legal realm a traditional problem of philosophy.
27. The case of the "lower disciplines" is different. With philosophy, mathematics, history,
etc., the problem of the basis of scientific knowledge is raised in the reality of social existence
itself, as soon as the "lower discipline" finds itself established as such, without any support
except that of the "judgment of authorities." Those who refuse to accept (as do Wittgenstein
and Bachelard) that the establishment of "the authorities," which is the historical structure of the
scientific field, constitutes the only possible foundation of scientific reason condemn
themselves either to self-founding strategies or to nihilist challenges to science inspired by a
persistent, distinctly metaphysical nostalgia for a "foundation," which is the
nondeconstructed principle of so-called deconstruction.
820 THE HASTINGS LAW JOURNAL [Vol. 38
dures which characterize juridical language contribute to producing two
major effects. The neutralization effect is created by a set of syntactic
traits such as the predominance of passive and impersonal constructions.
These are designed to mark the impersonality of normative utterances
and to establish the speaker as universal subject, at once impartial and
objective. The universalization effect is created by a group of convergent
procedures: systematic recourse to the indicative mood for the expression
of norms;28 the use of constative verbs in the present and past third person
singular, emphasizing expression of the factual, which is characteristic of
the rhetoric of official statements and reports (for example, "accepts,"
"admits," "commits himself," "has stated,"); the use of indefinites and of
the intemporal present (or the "juridical future") designed to express the
generality or omnitemporality of the rule of law; reference to
transsubjective values presupposing the existence of an ethical consensus
(for example, "acting as a responsible parent"); and the recourse to fixed
formulas and locutions, which give little room for any individual
variation.29
Far from being a simple ideological mask, such a rhetoric of
autonomy, neutrality, and universality, which may be the basis of a real
autonomy of thought and practice, is the expression of the whole operation
of the juridical field and, in particular, of the work of rationalization to
which the system of juridical norms is continually subordinated. This
has been true for centuries. Indeed, what we could call the "juridical
sense" or the "juridical faculty" consists precisely in such a universalizing
attitude. This attitude constitutes the entry ticket into the juridical
field—accompanied, to be sure, by a minimal mastery of the legal
resources amassed by successive generations, that is, the canon of texts and
modes of thinking, of expression, and of action in which such a canon is
reproduced and which reproduce it. This fundamental attitude claims to
produce a specific form of judgment, completely distinct from the often
wavering intuitions of the ordinary sense of fairness because it is based
upon rigorous deduction from a body of internally coherent rules. It is
also one of the bases of a uniformity which causes individual attitudes to
converge and to sustain each other, and which, even in the competition
28. Philosophers within the natural law tradition subscribe to this long-recognized trait in
order to claim that juridical texts are not normative but rather descriptive, and that legislators
simply identify what is, not what ought to be, that they utter what is just or justly distributed
according to what is written as an objective property into things themselves: "The legislator
prefers to describe legal institutions rather than establishing rules directly." G. KALINOWSKI,
INTRODUCTION A LA LOGIQUE JURIDIQUE 33 (1964).
29. SeeJ. L. SOURIAUX& P. LERAT,LE LANGUAGE DU DROIT (1975).
July 1987] FORCE OF LAW 821
for the same professional assets, unifies the body of those who live by the
production and sale of legal goods and services.
IV
The development of a body of rules and procedures with a claim to
universality is the product of a division of labor resulting from the
competition among different forms of competence, at once hostile and
complementary. These different forms of competence operate as so
many forms of specific capital associated with different positions within the
juridical field. The comparative history of law would no doubt sustain the
view that, given varying juridical traditions and varying moments within
the same tradition, the hierarchical ranking of the different classifications of
legal actors, and of the classifications themselves, have varied considerably,
depending upon specific periods and national traditions and upon the areas
of specialization they designate—for example, public versus private law.
Structural hostility, even in the most diverse systems, sets the position
of the "theorist" dedicated to pure doctrinal construction against the
position of the "practitioner" concerned only with the realm of its
application. This hostility is at the origin of a permanent symbolic struggle
in which different definitions of legal work as the authorized interpretation
of canonical texts confront each other. The different categories of
authorized interpreters tend to array themselves at two opposite poles. On
the one hand are intepretations committed to the purely theoretical
development of a doctrine—the monopoly of professors of law responsible
for teaching the rules currently in force in normalized and formalized
forms. On the other hand are interpretations committed to the practical
evaluation of a specific case—the responsibility of judges who carry out
acts of jurisprudence and who are thereby able, at least in certain
instances, to contribute to juridical construction. In fact, however, the
producers of laws, rules, and regulations must always take account of
the reactions, and sometimes of the resistances, of the entire juridical
body, specifically of the practitioners. Such experts can put their juridical
competence in the service of the interests of certain categories of their
clientele and add strength to the numerous tactics by which those clients
may escape the effects of the law. The practical meaning of the law is
really only determined in the confrontation between different bodies
(e.g. judges, lawyers, solicitors) moved by divergent specific interests.
Those bodies are themselves in turn divided into different groups,
moved by divergent (indeed, sometimes hostile) interests, depending upon
their po-
822 THE HASTINGS LAW JOURNAL [Vol. 38
sition in the internal hierarchy of the body, which always corresponds
rather closely to the position of their clients in the social hierarchy.
The result is that the comparative social history of juridical production
and of juridical discourse on that production systematically specifies the
relation between the positions taken in that symbolic struggle on the one
hand, and the positions occupied in the division of juridical labor on the
other. The tendency to accentuate the syntax of the law is rather
characteristic of theoreticians and professors, while attention to the
pragmatic side is more likely in the case of judges. But a social history
should also consider the relation between the variations in the relative
power of these two polar orientations concerning juridical work, variations
which depend upon place and historical moment, and the variations in the
relative power of the two groups within the power structure of the
juridical field.
The form of the juridical corpus itself, notably its degree of formalization and normalization, seems very dependent on the relative strength of
"theoreticians" and "practitioners," of law professors and judges, of
exegetes and legal specialists, within the power structure of the field at a
particular point in time, and upon their respective abilities to impose
their vision of the law and of its interpretation. Variations in the relative
power of different groups to impose their particular vision of law might
help to explain the systematic differences which separate national
traditions, particularly the major division between the so-called RomanoGer-manic and the Anglo-American traditions.
In the German and French tradition, the law, particularly civil law,
seems to be a real "law of the professors" tied to the primacy of legal
doctrine over procedure and over everything which concerns proof or the
execution of judgments. This dominance of doctrine reproduces and
reinforces the domination of the high magistracy, who are closely tied to
the law faculties, over judges who, having passed through the University,
are more inclined to admit the legitimacy of the magistrates'
interpretations than those of lawyers whose training has been "on the
job." In contrast, in the Anglo-American tradition, the law is
jurisprudential (case law), based almost exclusively on the decisions of
courts and the rule of precedent. It is only weakly codified. Such a legal
system gives primacy to procedures, which must be fair ("fair trial").
Mastery is gained above all in practice or through pedagogical techniques
which aim to imitate as much as possible the conditions of professional
practice: for example, the "case method," used in Anglo-American law
schools. Here, a legal rule does not claim to be based upon moral theory
or rational science but aims merely to provide a solution to a lawsuit,
placing

July 1987] FORCE OF LAW 823
itself deliberately at the level of the debate concerning a specific application.
The status of such a rule becomes comprehensible when one realizes that
in any particular case the significant jurist is the judge who has emerged
from within the ranks of the practitioners.
The relative power of the different kinds of juridical capital within
the different traditions is related to the general position of the juridical
field within the broader field of power. This position, through the relative
weight granted to "the rule of law" or to governmental regulation,
determines the limits of the power of strictly juridical action. In France,
juridical action is today limited by the power that the State and the
technocrats produced by the Ecole Nationale d'Administration (National
School of Administration) exercise over large sectors of public and private
administration. In the United States, on the other hand, lawyers produced
by the major law schools are able to occupy positions outside the limits of
the juridical field itself, in politics, administration, finance, or industry.
The greater strength of the juridical field in the United States results in
certain systematic differences, which have often been mentioned since
deTocqueville, in the social role of the law and, more precisely, in the
role attributed to legal recourse within the universe of possible actions,
particularly in the case of campaigns to right particular wrongs.
The hostility between the holders of different types of juridical capital,
who are committed to very divergent interests and world-views in their
particular work of interpretation, does not preclude thé complementary
exercise of their functions. In fact, such hostility serves as the basis for a
subtle form of the division of the labor of symbolic domination in which
adversaries, objectively complicitous with each other, fulfill mutual needs.
The juridical canon is like a reserve of authority providing the guarantee
for individual juridical acts in the same way a central bank guarantees
currency. This guarantee explains the relatively weak tendency of the
legal habitus to assume prophetic poses and postures and its inclination,
visible particularly among judges, to prefer the role of lector, or interpreter,
who takes refuge behind the appearance of a simple application of the law
and who, when he or she does in fact perform work of judicial creation,
tends to dissimulate this fact.30 An economist, no matter how directly
involved in practical administration, remains connected
30. R. DAVID, LES GRANDS COURANTS DU DROIT CONTEMPORAIN 124-32 (5th ed. 1975) (citing 5
TRAVAUX DE L'ASSOCIATION HENRI CAPITANT 74-76 (1949)).
824 THE HASTINGS LAW JOURNAL [Vol. 38
to the pure economic theorist who produces mathematical theorems
more or less devoid of referents in the real economic world, but who is
nonetheless distinguished from the pure mathematician by the very
recognition that the most impure economist gives to his theories.
Similarly, the most lowly judge (or, to trace the relation to its final link,
even the police officer or prison guard) is tied to the pure legal theorist and
to the specialist in constitutional law by a chain of legitimation that removes
his acts from the category of arbitrary violence.31
It is indeed difficult not to see the operation of a dynamic, functional
complementarity in the permanent conflict between competing claims to the
monopoly on the legitimate exercise of juridical power. Legal scholars and
other legal theorists tend to pull the law in the direction of pure theory,
ordered in an autonomous and self-sufficient system, freed of all the
uncertainties or lacunae arising in its practical origins through
considerations of coherence and justice. On the other hand, ordinary judges
and legal practitioners more concerned with the application of this system
in specific instances, orient it toward a sort of casuistry of concrete
situations. Rather than resorting to theoretical treatises of pure law, they
employ a set of professional tools developed in response to the
requirements and the urgency of practice—form books, digests, dictionaries,
and now legal databases.32 Judges, who directly participate in the
administration of conflicts and who confront a ceaselessly renewed juridical
exigency, preside over the adaptation to reality of a system which would
risk closing itself into rigid rationalism if it were left to theorists alone.
Through the more or less extensive freedom of interpretation granted to
them in the application of rules, judges introduce the changes and
innovations which are indispensable for the survival of the system. The
theorists then must integrate these changes into the system itself. Legal
scholars, through the work of rationalization and formalization to which
they expose the body of rules, carry out the function of assimilation
necessary to ensure the coherence and the permanence of a systematic set of
principles and rules. Once assimilated, these rules and principles can
never be reduced to the sometimes contradictory, complex, and, finally,
31. One finds a similar chain linking theoreticians and activists in political organizations, or at
least in those that traditionally claim a basis for their action in a political or economic theory.
32. A good example of the process of codification which produces the juridical from the
judicial would be the publication of the decisions of the French Cour de Cassation (Supreme
Court) and the selection, normalization, and distribution which, beginning with a body of
decisions chosen by the presiding judges for their "legal interest," produces a body of rationalized
and normalized rules. See Serverin, Une production communautaire de jurisprudence: l'édition
juridique des arrèts, 23 ANNALES DE VAUCRESSON 73 (1985).
July 1987] FORCE OF LAW 825
unmasterable series of successive acts of jurisprudence. At the same
time, they offer to judges, whose position and dispositions incline them to
rely on their sense of justice alone, the means of separating their
judgments from the overt arbitrariness of a Kadijustiz.33 The role of legal
scholars, at least in the so-called Romano-Germanic tradition, is not to
describe existing practices or the operative conditions of the rules which
have been deemed appropriate, but rather to formalize the principles and
rules involved in these practices by developing a systematic body of rules
based on rational principles and adapted for general application. These
scholars thus partake of two modes of thinking: the theological, in that
they seek the revelation of what is just in the text of the law; and the
logical, in that they claim to put deductive method into practice when
applying the law to a particular case. Their object is to establish a "nomological science," a science of law and law-making that would state in
scientific terms what ought to be. As if they sought to unite the two
separate meanings of "natural law," they practice an exegesis aimed at
rationalizing positive law by the logical supervision necessary to guarantee
the coherence of the juridical corpus, and, simultaneously, to discover
unforeseen consequences in the texts and in their interplay, thereby filling
the so-called gaps in the law.
We should not underestimate the historical effectiveness of the legal
theorist's work which, by becoming part of its object, becomes one of the
principal factors in its transformation. But neither should we be misled
by the exalted representations of juridical activity which are offered by its
own theoreticians.34 For anyone who does not immediately accept the
presuppositions upon which the legal field's operation is based, it would be
hard to believe that the pure constructions of legal scholars, still less the
decisions of ordinary judges, comply with the deductive logic which
33. See II M. WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 976-78 (G. Roth
& M. Wittich eds. 1978). In Islam, the Kadi is a minor local magistrate. "Kadi Justice" is
Weber's term for a legal system oriented "not at fixed rules of a formally rational law but at
the ethical, religious, political, or otherwise expediential postulates of a substantively rational law."
See M. WEBER ON LAW IN ECONOMY AND SOCIETY 213 & n.48 (M. Rheinstein ed. 1954).
(Translator's note).
34. Motulsky, for example, seeks to demonstrate that "jurisprudence" is defined by a
specific and specifically deductive treatment of givens, by a "juridical syllogism," which allows
subsumption of particular cases under a general rule. H. MOTULSKY, PRINCIPES D'UNE REALISATION
METHODIQUE DU DROIT PRIVE,LA THEORIE DES ELEMENTS GENERATEURS DE DROITS SUBJECTIFS 47-48 (Thesis,
University of Paris 1948). Like epistemologists who reconstruct ex post facto the actual practice of
a researcher and produce an account of scholarly procedure as it ought to be, Motulsky
reconstructs what might (or should) be the proper "method of production" of the law. He
outlines a phase of research seeking a "possible rule"—a sort of methodical exploration of the
universe of rules of law—and distinguishes it from the application phase, comprising the
application of the rule directly to a particular case.
826 THE HASTINGS LAW JOURNAL [Vol. 38
is the spiritual point of honor of all these professional jurists. As the
"legal realists" have demonstrated, it is impossible to develop a perfectly
rational juridical methodology: in reality, the application of a rule of law to
a particular case is a confrontation of antagonistic rights between which
a court must choose. The "rule" drawn from a preceding case can never be
purely and simply applied to a new case, since there are never two
completely identical cases and since the judge must determine if the rule
applied in the first case can be extended in such a way as to include the
second.35 In short, far from the judge's being simply an executor whose
role is to deduce from the law the conclusions directly applicable to an
instant case, he enjoys a partial autonomy that is no doubt the best
measure of his position in the structure of distribution of juridical
authority's specific capital.36 His decisions are based on a logic and a
system of values very close to those of the texts which he must interpret,
and truly have the function of inventions. While the existence of written
rules doubtless tends to diminish the variability of behaviors, and while
the conduct of juridical actors can be referred and submitted more or less
strictly to the requirements of the law, while at the same time a proportion
of arbitrariness remains in legal decisions and in the totality of the acts
which precede and predetermine them, such as the decisions of the police
concerning an arrest. This arbitrariness can be imputed to organizational
variables such as the composition of the deciding body or the identities
of the parties.
VI
Interpretation causes a historicization of the norm by adapting
35. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809,
809-19 (1935),
36. The freedom granted to interpretation varies considerably between the Cour de Cassation,
see supra note 31, which has the power to annul the force of a law (for example by proposing
a strict interpretation of it, and lower courts, in which judges' academic training and
professional experience incline them to abdicate the freedom of interpretation which is
theoretically theirs and to limit themselves to applying established interpretations (comprising
statements of the decision's basis in the law, doctrine, legal commentary, and appellate court
decisions). Remi Lenoir offers the example of a court in a working-class district of Paris in
which, every Friday morning, the session is specially given over to identical lawsuits concerning
breach of rental and sales contracts, brought by a local firm specializing in the sale and rental
of household appliances, televisions, and the like. The decisions, which are entirely
predetermined, are rendered with great rapidity; the lawyers, who are rarely even there, do not
speak. If for any reason a lawyer is present—which would prove that, even at this level, the
court's power of interpretation exists—such presence is perceived as a sign of esteem for the
judge and the institution which, as such, is worthy of such respect since the law is not rigidly
applied there. It is also a sign of the importance attributed to the decision and an indication of the
chances that an appeal of the decision might be made.

July 1987] FORCE OF LAW 827
sources to new circumstances, by discovering new possibilities within
them, and by eliminating what has been superseded or become obsolete.
Given the extraordinary elasticity of texts, which can go as far as
complete indeterminacy or ambiguity, the hermeneutic operation of the
declaratio (judgment) benefits from considerable freedom. It is not rare
for the law, as a docile, adaptable, supple instrument, to be obliged to the
ex post facto rationalization of decisions in which it had no part. To
varying degrees, jurists and judges have at their disposal the power to
exploit the polysemy or the ambiguity of legal formulas by appealing to
such rhetorical devices as restrictio (narrowing), a procedure necessary
to avoid applying a law which, literally understood, ought to be applied;
extensio (broadening), a procedure which allows application of a law
which, taken literally, ought not to be applied; and a whole series of
techniques like analogy and the distinction of letter and spirit, which tend
to maximize the law's elasticity, and even its contradictions, ambiguities,
and lacunae.37
In reality, the interpretation of the law is never simply the solitary
act of a judge concerned with providing a legal foundation for a decision
which, at least in its origin, is unconnected to law and reason. The judge
acts neither as an interpreter meticulously and faithfully applying the
rule (as Gadamer believes), nor as a logician bound by the deductive
rigor of his "method of realization" (as Motulsky claims). The practical
content of the law which emerges in the judgment is the product of a
symbolic struggle between professionals possessing unequal technical
skills and social influence. They thus have unequal ability to marshall the
available juridical resources through the exploration and exploitation of
"possible rules," and to use them effectively, as symbolic weapons, to win
their case. The juridical effect of the rule—its real meaning—can be
discovered in the specific power relation between professionals. Assuming
that the abstract equity of the contrary positions they represent is the same,
this power relation might be thought of as corresponding to the power
relations between the parties in the case.
37. Mario Sbriccoli has proposed a list of the procedures which allowed medieval Italian
jurists (lawyers, magistrates, political counsellors, etc.) in the small communes of the time to
"manipulate" the juridical corpus. For example, the declaratio could be based upon the legal
category of the case, the substance of the norm, the usage and common meaning of the terms,
their etymology—and each of these elements could be subdivided again. The declaratio could
also play upon contradictions between the legal category and the text itself, taking off from one of
them to yield an understanding of the other, or vice versa. See M. SBRICCOLI,
L'lNTERPRETAZZIONE DELLO STATUTO, CONTRIBUTO ALLO STUDIO DELLA FUNZIONE DEI
GIURISTI NELL'ETA COMMUNALE (1969); Sbriccoli, Politique et interprétation juridiques dans les villes
italiennes du Moyen-age, 17ARCHIVES DE PHILOSOPHIE DU DROIT, 99-113 (1972).

828 THE HASTINGS LAW JOURNAL [Vol. 38
In granting the status of judgment to a legal decision which no doubt
owes more to the ethical dispositions of the actors than to the pure norms
of the law, the rationalization process provides the decision with the
symbolic effectiveness possessed by any action which, assuming one
ignores its arbitrariness, is recognized as legitimate. Such effectiveness
depends at least in part on the fact that, unless particular vigilance is
exercized, the impression of logical necessity suggested by the form tends to
contaminate the content as well. The rational (or rationalizing)
formalism of rationalist law, which has been distinguished by Weber and
others from the magic formalism of ritual and of ancient procedures of
judgment (such as the individual or collective oath), participates in the
symbolic effectiveness of law at its most rational.38 The ritual that is
designed to intensify the authority of the act of interpretation—for example
formal reading of the texts, analysis and proclamation of the judgment—
which, from Pascal's time forward, has always claimed the attention of
analysts, only adds to the collective work of sublimation designed to
attest that the decision expresses not the will or the world-view of the
judge but the will of the law or the legislature (voluntas legis or legislatoris).