The Devil is in the Definition – Definitions and their Limited Use in Legal Problem Solving

The lawyer’s usual attempt to catch the meaning of a thing by entangling it in a net of words is based on a common misapprehension of the way words work. The great minds of the ages have since time immemorial reminded us that words do not contain essences, that meanings are social constructs, and that the relation between words and meanings is slippery at best. Definitions presuppose that words have simple meanings attached to them in something like a one-to-one relationship, which is why the law can sometimes be so obtuse. It is the use of the law in a tribunal that provides the eventual understanding of how the law works. Decisions handed down in courts are embedded in a particular time and a particular set of circumstances and are the products of minds informed by a set of social experiences which other lawyers accept as qualifying those particular persons to pronounce on the law. Our legislature would do well when framing legislation to imitate those who drafted the Constitution of the Republic of South Africa, 1996 which is sufficiently specific, without the support of pages of definitions, to lead to very precise argument in the Constitutional Court, and yet sufficiently general to allow the law to develop with the flux of time.

The Spirit of Capitalism: Nationalism and Economic Growth. By Liah Greenfeld, Cambridge, MA: Harvard University Press, 2001. 541p. $45.00.

In this book Liah Greenfeld tackles the problem that preoccupied Max Weber in The Protestant Ethic and the Spirit of Capitalism (1930). Like many others, she disputes Weber's claim that modern capitalism emerged uniquely in Northwest Europe because of the attitudes and behavior promoted by Protestant Christianity, especially in its Calvinist variety: The “worldly asceticism” and peculiar form of economic rationality involved spawned an economic system that eventually helped change the world. Critical of this precise argument, Greenfeld is in the Weberian camp in centering the problem where he did and in stressing the differences between modern capitalism and age-old commercial profit making found virtually in all civilizations. Similarly sound is Weber's methodological posture that sees culture, that is, ideas, ideals, and values dramatically influencing the emergence, growth, and durability of economic systems. Those who, like the whole Marxist tradition, maintain that underlying “structural” factors such as technology and environment are the prime movers of history have succumbed to untenable deterministic philosophies. History and social structures, unlike the works of simple nature, are constructed by human agency, which itself is often provided by outstanding thinkers and doers.

Ideological Reconciliation in the Thought of Harold Laski and C. B. Macpherson

Both Harold Laski and C. B. Macpherson attempted to reconcile elements of liberalism and Marxism in their work. Macpherson offered a clearer and more precise argument about the ways in which capitalist market relations frustrate freedom, equality and the development of the individual. Laski provided a clearer and more consistent account of human nature, which is necessary to sustain such an argument. Macpherson, in turn, reformulated the distinction between negative and positive liberty, which had remained an unresolved problem in Laski's account of human nature. The respective strengths of Laski and Macpherson may be combined to provide a coherent and cogent ideological position.