ABSTRACT
Two diametrically opposed views of law have competed since the beginnings of legal sociology. Émile Durkheim asserted that ‘moral ideas are the soul of law’ and tried to justify that claim sociologically, showing precisely where modern law’s ‘soul’ had to be found. By contrast, Max Weber saw modern law as having entirely lost its ‘metaphysical dignity’; with the collapse of natural law theories it had become no more than a technical means of compromising conflicting interests. This tension between moral-expressive and instrumental-technical images of law runs through all modern legal thought. This chapter examines and reflects on some striking illustrations of the tension. It comments on recent debates about the dangers of legal instrumentalism, on human rights ‘talk’ as moral expression in law, and on an implicit morality often unrecognised but indispensable in everyday legal analysis. Ultimately, the chapter argues, using specific examples, that any law that is insufficiently ‘soulful’ in Durkheim’s sense can become incoherent, paralysed, directionless, or incomprehensible. Legal instrumentalism is inevitable and necessary, but beyond a certain point it becomes self-defeating.
