David Sugarman 256 comparative record shows that there are no tasks that it is inevitable or necessarv for lawyers to undertake.As Gordon demonstrates, the notion that capitalism required and generated specific legal regimes is untenable.'^' If we abandon the conception of a single, sovereign source of regulation, that power is the state and law is its voice, then the separation of “state” from“society”, “public” from“private”, “rational” from “irrational”, the distinctively “legal” from the “extra-legal” become problems rather than solutions.*^- Other fundamental changes in approach arc required if the insights of this body of work is to be taken seriously. For example, most theorists share the assumption that “ideology operates like a social cement, binding members of society together by providing them with collectively shared values and norms.Is this what ideology in fact does? Thompson observes that the slender evidence available tends to suggest, on the contrary, that the “stability” of Western societies is based less on consensus than on “the lack of consistent commitment and the propagation of social divisions. It is not so much unification and homogenization, but rather fragmentation and differentiation, which may be responsible for the social cohesion that exists in Western liberal democracies.”'^'* The subtle links between law, ideology and social cc)ntrol are more likely to escape the confines of more traditional analyses if we take seriously the notion that the power of ideology may derive simultaneously from its ability to secure consensus and to fragment consciousness. For example, religion was both an important counterpart of middle class culture and the source of major divisions within the classes. Like language, ideology is a site of refraction, mediation and displacement. Questioning the traditional conceptualisation of “ideology” and its empirical basis parallels a wider confrontation: namely, the challenging of reflective theories of knowledge. Now the traditional binary conceptualisations questioned in this essay have, in part, sustained and have been sustained by, reflectract”, Wisconsin Law Review, 1985, pp. 465-82; R. W. Gordon, “Macaulay, Macneil, and the Discovery of Solidarity and Power in Contract Law”, Wisconsin Law Review, 1985, pp. 565-79; B. Yngvesson, “Re-examining Continuing Relations and the Law”, Wisconsin Law Review, 1985, pp. 623-46; D.Kennedy, “Toward an Historical Understanding of Legal Consciousness”, in S. Spitzer, (ed.). Research in Law and Society, vol. 3., (Greenwood: JAI Press); R. Unger, Knowledge and Politics, (NewYork: The Free Press, 1975), and “The Critical Legal Studies Movement”, Harvard Law Review, 96, 1982, pp. 563-675. See Gordon, “Critical Legal Histories”, op cit., pp. 63-37, 100-125. Ibid. See, also, Sugarman, Law, Economy and the State in England, 1750-1914”, op. cit., passim, and Sugarman and Rubin, op. cit ... passim. For a helpful critique of the public/private divide as it has been used in recent literature on lawand the family, see N. Rose’s paper on the public/private distinction inJournal of Lawand Society, 14, 1967. J. B. Thompson, Studies in the Theory of Ideology, (Oxford: Polity Press, 1984), p. 33. Thompson, ibid. See, also, A. Abercrombie, S. Hill and B. S. Turner, The Dominant Ideologv Thesis (London: Allen and Unwin, 1980). 170
RkJQdWJsaXNoZXIy MjYyNDk=