We Americans turn over more of our society's disputes, decisions and concerns to courts and lawyers than does any other nation. Yet, in a society that places considerable value on democracy, courts would seem to have a peculiarly difficult problem justifying their power and maintaining their legitimacy. The judiciary is a non-majoritarian institution, whose guiding lights are neither popularly chosen nor even expected to express or implement the will of the people. Rather, its legitimacy rests on notions of honesty and fairness and, most importantly, on popular perceptions of the judicial decision-making process.

Basic to the popular perception of the judicial process is the notion of government by law, not people. Law is depicted as separate from - and above - politics, economics, culture or the values or preferences of judges. This separation is supposedly accomplished and ensured by a number of perceived attributes of the decision-making process, including judicial subservience to a Constitution, statutes and precedent; the quasi-scientific, objective nature of legal analysis, and the technical expertise of judges and lawyers.

Together, these attributes constitute a decision-making process in which 1) the law on a particular issue is pre-existing, clear, predictable and available to anyone with reasonable legal skills; 2) the facts relevant to disposition of a case are ascertained by objective hearing and evidentiary rules that reasonably ensure that the truth will emerge; 3) the result in a particular case is determined by a rather routine application of the law to the facts, and 4) except for the occasional bad judge, any reasonably competent and fair judge will reach the 'correct' decision.

Of course, there are significant segments of the Bar and trends in legal scholarship that repudiate this idealised model. The school of jurisprudence known as legal realism long ago exposed its falsity; and later jurisprudential developments, such as theories resting the legitimacy of law on the existence of widely shared values, at least implicitly recognise the social and political content of law. Moreover, concepts like public policy and social utility, while limited to certain notions of the public good, are generally acknowledged as appropriate considerations for judges, and it is commonly known that the particular judge assigned to a case has a significant bearing on the outcome.

But most of this thinking is either limited to law journals or compartmentalised, existing alongside and often presented as part of the idealised process. For example, balancing tests, where judges decide which of two or more conflicting policies or interests will predominate, are presented and applied as if there were objective and neutral answers, as if it were possible to perform such a balance independent of political, social and personal values which vary among our people and (to a lesser extent) among our judges.

Despite the various scholarly trends and the open consideration of social policy and utility, legal decisions are expressed and justified, and the courts (as well as their decisions) are depicted and discussed throughout society, in terms of the idealised process. The public perception - the crucial perception from the standpoint of legitimacy - is generally limited to the idealised model. One will often hear cynical views about the law, such as 'the system is fixed', but even such observations are usually meant to describe departures from, rather than characteristics of, the legal process. While this perception of the idealised model is not monolithic or static (at various times substantial segments of society have come to question the model), it has fairly consistently had more currency in the United States than in any other country.

Indeed, public debate over judicial decisions usually focuses on whether courts have deviated from the idealised model rather than on the substance of decisions or the nature and social significance of judicial power. Perceived deviations undermine the legitimacy and power of the courts, and are usually greeted with a variety of institutional and public challenges, including attacks by politicians and the press, proposals for statutory or constitutional change and, occasionally, threats or attempts to impeach judges.

While there is presently considerable dissatisfaction with the courts and their decisions from a variety of political perspectives, it is usually expressed in terms of this notion of deviation from the idealised model. Thus, the conservative criticism that the courts have over-stepped their bounds - going beyond or outside legal reasoning and the idealised process - is now commonplace, as is the accompanying plea for judicial restraint to allow our 'democratic processes' to function.

The authors of this book are also dissatisfied, but the content and implications of our critique are very different. At this early stage there appear to be four basic elements of our evolving legal theory.

First, we reject the idealised model and the notion that a distinctly legal mode of reasoning or analysis characterises the legal process or even exists. The problem is not that courts deviate from legal reasoning. There is no legal reasoning in the sense of a legal methodology or process for reaching particular, correct results. There is a distinctly legal and quite elaborate system of discourse and body of knowledge, replete with its own language and conventions of argumentation, logic and even manners, In some ways these aspects of the law are so distinct and all-embracing as to amount to a separate culture, and for many lawyers the courthouse, the law firm, the language, the style, become a way of life.

But in terms of a method or process for decision-making - for determining correct rules, facts or results - the law provides only a wide and conflicting variety of stylised rationalisations from which courts pick and choose. Social and political judgements about the substance, parties and context of a case guide such choices, even when they are not the explicit or conscious basis of decision.

Judges are the often unknowing objects, as well as among the staunchest supporters, of the myth of legal reasoning. Decisions are predicated upon a complex mixture of social, political, institutional, experiential and personal factors; however, they are expressed and justified, and largely perceived by judges themselves, in terms of 'facts' that have been objectively determined and 'law' that has been objectively and rationally found and applied. One result is a judicial schizophrenia which permeates decisions, arguments, and banter among lawyers.

Secondly, we place fundamental importance on democracy, by which we mean popular participation in the decisions that shape our society and affect our lives. While there is a very real sense of powerlessness that pervades contemporary society, to blame this solely or even principally on the courts misses the point.

Those democratic processes that the courts are supposedly invading in the conservative view consist essentially of the right to vote and freedom of speech and association. Our society allows no democracy outside this public sphere of our lives. For example, the economic decisions that most crucially shape our society and affect our lives, on basic social issues such as the use of our resources, investment, the energy problem, and the work of our people, are regarded as private and are not made democratically or even by the government officials elected in the public sphere. The public/private split ideologically legitimises private - mainly corporate - dominance, masks the lack of real participation or democracy, and personalises the powerlessness it breeds.

The law plays a crucial role in this: the idealised model, the notion of technical expertise, and the notion of the law as neutral, objective and quasi-scientific lend legitimacy to the judicial process, which in turn lends a broader legitimacy to the social and power relations and ideology that are reflected, articulated and enforced by the courts. However, existing democratic processes do not provide meaningful choices or constitute meaningful mechanisms for popular control or input, which is perhaps why half our people do not vote. These processes - and the law - provide a false legitimacy to existing social and power relations.

The current and seemingly endless debate over judicial restraint or activism also misses the point. There is no coherent framework or principled resolution of this debate within the legal system, just as and because there is no legal reasoning. Rather, with very few exceptions, the pleas for judicial restraint and activism, sometimes unintentionally or unconsciously, mask a political direction and are wholly dependent on the historical and social contexts. If one favoured social security and restriction of child labour over maximisation of profits during the New Deal, one was for judicial restraint; if one favoured racial equality and justice over maintenance of white privilege and the historical oppression of black people in the 1960s, one was for judicial activism; if one favoured prohibition of abortions by choice in the 1980s, one was for judicial restraint. There is afoot these days a conservative brand of 'democracy' using, in part, the fashionable label of judicial restraint, that allows little or no room for popular participation or scrutiny. In this view, powerful (largely corporate) interests, the patriarchal, authoritarian family and, in selected areas, government officials are not to be interfered with, by the courts or by the people.

Thirdly, we reject the common characterisation of the law and the state as neutral, value-free arbiters, independent of and unaffected by social and economic relations, political forces and cultural phenomena. Traditional jurisprudence largely ignores social and historical reality, and masks the existence of social conflict and oppression with ideological myths about objectivity and neutrality. The dominant system of values has been declared value free; it then follows that all others suffer from bias and can be thoughtlessly dismissed.

Left thinking about the law and the state has long recognised this political content and lack of neutrality. However, there has been a tendency to oversimplify with analyses that often seek to seek an almost mystical, linear, causal chain that translates economics into law. For example, a common orthodox Marxist explanation is that law is a superstructural phenomenon that is mysteriously governed and determined by an underlying base of economic relations and/or instrumentally controlled by the ruling elite or class. But the law is not simply an armed receptacle for values and priorities determined elsewhere; it is part of a complex social totality in which it constitutes as well as is constituted, shapes as well as is shaped. Moreover, such analyses lose sight of the fact that the law consists of people-made decisions and doctrines, and the thought processes and modes of reconciling conflicting considerations of these people (judges) are not mystical, inevitable or very different from the rest of us. It is often difficult to resist dehumanisation of one's opponents and a blanket rejection of all people and institutions which constitute and symbolise a system one deeply wishes to transform.

However, judges art not robots that are - or need to be - mysteriously or conspiratorially controlled. Rather, they, like the rest of us, form values and prioritise conflicting considerations based on their experience, socialisation, political perspectives, self-perceptions, hopes, fears and a variety of other factors. The results are not, however, random. Their particular backgrounds, socialisation and experiences- in which law schools and the practice of largely commercial firms of law play an important role - result in a patterning, a consistency, in the ways they categorise, approach and resolve social and political conflicts. This is the great source of the law's power; it enforces, reflects, constitutes and legitimises dominant social and power relations without a need for or the appearance of control from outside and by means of social actors who largely believe in their own neutrality and the myth of legal reasoning.

Fourthly, while the law has many important functions, the legitimation function is crucial to an understanding of its doctrines, rationalisations, results and social role. The law's ultimate mechanism for control and enforcement: is institutional violence, but it Protects the dominant system of social and power relations against political and ideological as well as physical challenges. The law is a major vehicle for the maintenance of existing social and power relations by the consent or acquiescence of the lower and middle classes. The law's perceived legitimacy confers a broader legitimacy on a social system and ideology that, despite their claims to kinship with nature, science or God, are most fairly characterised by domination by a very small, mainly corporatised elite. This perceived legitimacy of the law is primarily based on notions of technical expertise and objectivity and the idealised model of the legal process - in short, as described above, on the distorted notion of government by law, not people. But it is also greatly enhanced by the reality, often ignored in orthodox left thinking, that the law is, on some occasions, just and sometimes serves to restrain the exercise of power.

A realistic, understandable approach to the law that explains its operation and social role must acknowledge the fundamental conflicts in society; the class, race and sex base of these conflicts; and the dominance of an ideology that is not natural, scientifically determined, or objective. The discretionary nature of court decisions, the importance of social and political judgements, and the dominance of the ideology of advanced capitalism characterise our judicial process far better than any notions of objectivity, expertise or science.