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8 - “Total Justice” and Political Conservatism

Published online by Cambridge University Press:  07 October 2011

By
Robert A. Kagan
Edited by
Robert W. Gordon  and
Morton J. Horwitz
Robert A. Kagan
Affiliation:
University of California, Berkeley
Robert W. Gordon
Affiliation:
Yale University, Connecticut
Morton J. Horwitz
Affiliation:
Harvard University, Massachusetts
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Summary

In Total Justice (1985), Lawrence M. Friedman describes a dramatic change in American legal culture. Friedman defines legal culture as ordinary people's views about what law is, should be, and should provide. Over the last century or so, he contends, American legal culture has come to include a widespread demand for “total justice.” In turn that demand has generated thoroughgoing change in the law and legal life of the country. One strand in the legal culture of total justice is “a general expectation of recompense” for arbitrarily inflicted devastating losses, particularly accidentally imposed personal injuries. A second strand is the “expectation of fair treatment.” Friedman argues that Americans increasingly expect nondiscriminatory treatment and some version of “due process of law” when institutions deny them some important benefit. They expect fair treatment not only in courts and government agencies but also “in all settings: in hospitals and prisons, in schools, on the job, in apartment buildings.”

In its focus on popular legal culture, Total Justice reiterates a theme that runs through the entire library of Friedman's books and articles: At least in the United States, developments in popular legal culture, much more than the theorizing of legal scholars and judges, are the primary drivers of legal change. In turn, the evolution of legal culture is driven primarily by social changes that affect the day-to-day texture of life. Thus the most powerful insights in the book concern the social changes that have engendered a popular legal culture attuned to total justice.

Type
Chapter
Information
Law, Society, and History
Themes in the Legal Sociology and Legal History of Lawrence M. Friedman
 , pp. 118 - 136
Publisher: Cambridge University Press
Print publication year: 2011

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