ABSTRACT
John Dewey's pragmatic theory of legal decision making, as indeed his approval of Oliver Wendell Holmes suggested, bore striking affinities with legal realism. Carl Schmitt's justification was entirely pragmatic. Adolf Hitler was the effective power in post-1933 Germany, and so it was to Hitler that political allegiance must be given, regardless of the perceived political morality of the regime. The suggestion that law is merely an expression of power was emphasised in Michel Foucault's lectures on ‘governmentality’ and liberalism. In The Crisis of Parliamentary Democracy, Schmitt refocused his attack upon the idea of democracy. Democracy, he suggested, is inherently impossible because it is premised on a homogenous society, cast in liberal ideology in terms of formal equality and freedom. The modern political economy needs an identifiably exploitable class. It needs failures, just as much as it needs success. Law and its associated ‘disciplinary processes’ play a crucial and active role in categorising society.
