Autonomous legality and the liberal legalism into which it habitually elides represent more than a method, a way of proceeding or a set of techniques. Instead, they have to them an imaginative dimension that establishes a distinctive mentality, which through social reinforcement comes to seem mere common sense. It is this quality of liberal legalism that inspires its potency and its manifestation in subtly different guises, whether those of the common law mind, rights-based legalism or constitutionalism. In the image of the judge, also capable of deployment in the cause of a more repressive alternative, autonomous legality, and its sibling liberal legalism, finds persuasive expression.

The limits of liberal legalism

‘A pathology of the legal order’

In a study of the California Industrial Accident Commission (IAC) published in 1969, sociologist Philippe Nonet turned his attention to a government agency with significant dispute-resolution and rights-determining functions. Its remit was the administration of workers’ compensation laws in California, which since 1910 had governed the liability of employers for injuries to employees at work. The story Nonet had to tell was one of ‘the transformation of a welfare agency into a court of law’, of how an administrative authority with wide discretion and a mandate for social action had during the course of 50 years ‘lost most of its early sense of initiative and public mission’, instead acquiring the ‘outlook of a passive arbitrator, responsible only to those private interests of labor and industry it was originally meant to regulate’ (Nonet, 1969: 1). The story was, in other words, one of ‘legalization’, whereby the IAC became a ‘highly self-conscious judicial body, largely removed from the concrete problems of welfare policy and governed by exacting standards of procedure’ (Nonet, 1969: 1).

A significant aspect of the process of transition identified by Nonet was what he described as the gradual shift from ‘pattern orientation’ to ‘claims orientation’. In its early days, the IAC had little interest in the adjudication of individual claims. Instead, its chief concern was to create or foster appropriate practices in the management of claims and the provision of medical care, with interventions limited in purpose to educational and corrective action. In that context, the IAC’s residual adjudicative functions were merely a ‘safety valve’ for the small minority of cases that did not resolve themselves.