Psycholegal Scholarship's Contribution
to False Consciousness About Injustice

Article

The field of psychology and law began its organizational existence amidst late 1960s political protest. Opposing both an unjust war and longstanding inequities of race, class, and (eventually) gender, activists on the left appealed to, critiqued, and ultimately sought to alter sociopolitical institutions that not only had allowed oppressive conditions to continue but in many ways had helped to create them. Throughout that period, some social and other psychologists went beyond the earlier research on war and racial segregation that had strengthened psychology's reformist role in public policy decision making (Herman, 1995). Their increasingly critical stance added momentum to social psychology's methodological and epistemological "crisis of confidence" (Pancer, 1997) and accelerated empirical research on social justice, aggression, sex roles, prejudice, and other politically tinged topics. New specializations such as community and feminist psychology, seeking to "increase the personal and collective power of people who are powerless and, in so doing, to reduce domination" (Prilleltensky, 1997, p. 526), posed a broad-based attack on the larger societal status quo as well as on the field's own values, assumptions, and practices.

Institutionalized by the 1968 founding of the American Psychology-Law Society (APLS), "psychology and law" reflected a similar effort by "relevance-deprived . . . . psychologists" (Tapp & Levine, 1977a, p. 363) to "challenge and transform a prevailing 'judicial common sense' that had been used to keep the disenfranchised down so long" (Haney, 1993, p. 375). Earlier psycholegal research had been "comparatively trivial in terms of problem selection, contrived in terms of problem design, and often lacked a sound philosophical or psychological base" (Tapp & Levine, 1977c, p. 7). By the late sixties, however, the belief that "the ultimate purpose for uniting law and psychology is to promote justice and to assess the role of law in achieving a just social order" (Tapp & Levine, 1977c, p. 5) echoed those in other subdisciplines who assumed that a broader, politically aware applied psychology would lead to fundamental social change (Fox & Prilleltensky, 1997). Significantly, optimistic psycholegal pioneers cautiously dismissed early fears that psycholegal research "would be used by the 'enemy,' namely the purveyors of an ideology of repression rather than an ideology of expression" (Tapp & Levine, 1977c, p. 4).

Times change. In contrast to June Tapp and Felice Levine's "broad-gauged approach to inquiry" (1977c, p. 368) in the edited book Law, Justice, and the Individual in Society (1977b), by the mid-1980s psycholegal scholarship was again widely perceived as overly focused on a narrow range of topics (Kagehiro & Laufer, 1992; Roesch, 1995; Saks, 1986). Mainstream psycholegal scholars paid little attention to law's potential downside even as they examined discretionary factors in legal decision making and proposed relatively minor institutional reforms. Holding fast to traditional positivist assumptions and goals while avoiding the discourse and concerns of critical legal studies and feminist jurisprudence (Haney, 1993, 1997), today's psychologists of law are noticeably absent from multidisciplinary collections of radical and progressive legal perspectives (e.g., Caudill & Gold, 1995; Kairys, 1998). Our field's researchers have rarely posed certain kinds of significant questions: How does law ensure the maintenance of societal inequality and power imbalances? When does law provide the appearance of justice without the reality? Does the lack of consensus about how to define justice mean we cannot attack injustice? To what extent does reliance on law deflect attention from other solutions to societal problems? Craig Haney (1993) lamented: "I believe we are beginning to lose a sense of shared purpose in psychology and law. I speak about a sense of the waning of collective effort, a loss of common goals, and an abandoning of a sense of mission--the mission of legal change" (pp. 378-379). Gary Melton (1991) acknowledged he was "not sure that the field of psychology and law is going anywhere" and that "to a great extent, psychologists of law still have blinders on when they look at the law and the legal system" (p. 1).

Psycholegal research on eyewitness testimony, expert witnesses, jury behavior, and similar topics is oftentimes clever and sometimes helpful in aiding system participants or proposing minor reforms. But the endless body of research, pursued one minor variation after another, contributes to the same trivialization criticized in social psychology almost three decades ago. For a time, efforts to develop a psychological jurisprudence explicitly directed toward shaping law in a manner consistent with dignity and justice (Melton, 1988, 1990a, 1990b, 1992) raised hopes that the field would develop a critical edge. Yet these efforts have been short-circuited by a restricted vision of how much change is needed (Fox, 1993b) and eclipsed by a new therapeutic jurisprudence that risks turning psychology into a mere adjunct of state power, despite its proponents' intentions to the contrary (Fox, 1997b). A promising new focus on "commonsense justice" (Finkel, 1995) has already been subjected to a variety of criticisms (Finkel & Sales, 1997), many of them from scholars wedded so strongly to traditional methods that they fail to question their own assumptions (Finkel, 1997).

Justice, dignity, and other key values such as compassion and caring remain embedded in psychology and law. But insistence that theorizing about law should be based on "the values that make up the conventional knowledge of the community of scientific psychology" (Wiener, Watts, & Stolle, 1993, p. 93) and advice to therapeutic jurisprudence adherents to pursue efforts "that can at least potentially lead to legal change in line with their own and the society's strongly held normative values" (Winick, 1997, p. 200) dampen critical thinking more suspicious of received wisdom. Too few psycholegal scholars unambiguously consider that "the view of the world that is privileged in U. S. law has been based in large part on the perspective of White, middle-class men, whose visions of the good, true, and beautiful are--and will continue to be--increasingly called into question" (Haney, 1997, p. 316). Justice in 1990s psychology and law more often means providing the perception of fairness in formal legal proceedings than ending racism, sexism, and class inequality (Small, 1997); caring often means little more than supporting the bureaucratic welfare state. Even proposing discussion of issues such as these at psychology-law conferences requires a good deal of strategizing about how to get past reviewers accustomed to traditional forensic topics and traditional empirical methods.

The deradicalization of psychology and law parallels trends in other subdisciplines. Community psychologists today more often seek short-term amelioration of community problems than truly transformative change (Prilleltensky & Nelson, 1997). Similarly, although consciously political in origin, feminist psychology has been diluted into the less threatening "psychology of women" (Wilkinson, 1997). Importantly, "critical psychologies in general are constrained not simply by the political limitations of their adherents, but by the institutional power of mainstream psychology" (Wilkinson, 1997, p. 249). Despite social science's belated acknowledgment that there is no such thing as value-free research, gatekeepers often resist acknowledging the validity or even the existence of political and moral considerations. In the American Psychological Association's recent official histories, for example, "the shaping of psychology by social forces such as the Great Depression, racism, and anti-Semitism is nowhere to be seen. Even more striking is the invisibility of those psychologists who studied these forces and who contributed to social reforms such as the Brown vs. Board of Education Supreme Court decision" (Harris, 1997, p. 25). Silences such as this one, rather than being accidental, are often constructed for political purposes (Cohen, in preparation).

The remainder of this article considers a central phenomenon that should be a key concern of our field: false consciousness about law and injustice. We will never reach consensus about what social justice is or about how to end injustice (Simon, 1995); its definition remains cloudy, as in Ron Cohen's (1991) statement that "Justice is done when those who should have, do have; when each gets his or her due; when what people do have is appropriate to what they should have" (p. 240). Nor will we always agree about justice's relative priority among other core values such as self-determination and participation, caring and compassion, health, and human diversity (Prilleltensky & Fox, 1997). But despite our lack of consensus--and perhaps partly because of it--failing to challenge false assumptions about law inhibits efforts to bring about transformative change and makes the continued acceptance of injustice more likely.

Shifting our gaze from justice to injustice can make false consciousness easier to find. "One misses a great deal by looking only at justice," Shklar (1990) noted: "The sense of injustice, the difficulties of identifying the victims of injustice, and the many ways in which we all learn to live with each other's injustices tend to be ignored, as is the relation of private injustice to the public order" (p. 15). Simon (1995) insisted that "one can make invaluable judgments about injustice without having a full-blown positive theory of what justice is" (pp. 55-56) and offered several grounds for making injustice the priority. First, empirically, injustice appears before a theory of justice develops (see also Finkel: "Bluntly put, the victim's cry is first, heady commentary is the afterthought"--1998, p. 6). Second, "injustice causes anger, whereas justice has a more tenuous grip on the emotions" (Simon, 1995, p. 58). And third, "morality's core consists of the condemnation of suffering" (59). Simon considered Rawls' (1971) analysis of justice (based on the "veil of ignorance" that leaves system creators in the dark about their ultimate position in society) the opposite of the contextual outcomes-based approach needed to identify injustice. As an example from the procedural justice realm, institutionalizing majority rule as a neutral decision rule offers minorities the appearance of participation without actual mutual control (Azzi & Jost, 1997). Similarly, injustice is apparent when "the elaborate edifice of due process on which we pride ourselves and invest our national self-image is used most by those who need it least" (Haney, 1991, p. 184).

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False Consciousness

False consciousness has been defined as "the holding of false or inaccurate beliefs that are contrary to one's own social interest and which thereby contribute to the maintenance of the disadvantaged position of the self or the group" (Jost, 1995, p. 400). More pointedly, "People accept the status quo out of lack of awareness that viable alternatives exist and out of ignorance as to how their rulers are violating their professed interests or out of ignorance of how they themselves are being harmed by what they think are their interests" (Parenti, 1996, pp. 210-211). Related terms describe much the same concept. For example, Cohen (1989) defined fabrications of justice as "false beliefs held by those disadvantaged by an injustice that they are intentionally led to hold by those benefitting by the injustice" (p. 33). Adopting Paulo Freire's (1970, 1975) terminology of conscientization or consciousness-raising, community psychologist Isaac Prilleltensky (1994) noted that "unless individuals become reasonably aware of the ideological deception of which they are victims, it is unlikely that they will be able to engage in any process of social change" (p. 189).

Not surprisingly, mainstream social scientists typically avoid reference to false consciousness at least partly because the concept seems too entrenched in Marxist doctrine, too "political" (Jost, 1995; Parenti, 1996). More substantively, some maintain that "recourse to 'false consciousness,' besides its patronizing nature (we, with our true consciousness, know better than the brainwashed), can be used to 'explain' and derogate the ideas of anyone who differs from us on any subject" (Geis, 1998, p. --). This concern is worth noting. Superficial arguments and a disinclination to reassess our own assumptions are found all along the political spectrum. And not only can claims of false consciousness be inflated; at times they are simply misdirected, minimizing the long historical record of opposition to domination despite elite control of socializing institutions (Scott, 1990).

Yet despite these caveats, the concept deserves greater attention. According to social psychologist John Jost (1995), recent advances in Marxist theory have allowed greater empirical testing of false consciousness dynamics. Marxist analysis "makes explicit connections to sociological and psychological phenomena such as biased or heuristical thinking, defection in the prisoner's dilemma situation, and the expression of 'class consciousness'. . . providing a philosophical basis for the social-psychological study of false consciousness" (p. 399). Similarly, "feminist scholars have invoked false consciousness in order to understand theoretical and practical problems concerning the psychological effects of rape, incest, domestic violence, and pornography" (p. 399). The "merging of recent socialist and feminist viewpoints has resulted in renewed attention to the social-psychological aspects of oppression and domination" (p. 400). Rejecting criticisms of the false consciousness framework, Jost noted that psychologists routinely help individuals eliminate erroneous, unhealthy beliefs and develop more successful methods of functioning. "There is no a priori reason why psychology should aim to be any less useful to social and political life than to other areas of human existence" (p. 417).

Significantly, in his review of mainstream social and political psychology, Jost found "a considerable amount of evidence for the proposition that people will hold false beliefs which justify their own subordination, although this evidence is not ordinarily recognized as supportive of a false consciousness approach" (1995, p. 401). Jost elaborated distinct categories of false consciousness that psychologists usually examine in depoliticized fashion. These include the failure to perceive justice and disadvantage ("people frequently perceive situations to be fair or just, even when there are good reasons to suppose that such situations are not"--p. 402); fatalism (including the beliefs that protest is futile, embarrassing, or exhausting); the justification of social roles (as through person perception and stereotyping); false attribution of blame (including self-blame and false other blame); identification with the aggressor (including psychological dependence and preference for the outgroup); and resistance to change (taking into account both cognitive and behavioral conservatism).

Psycholegal scholars might consider the relevance of Jost's taxonomy to the inculcation of disadvantaging false beliefs about law. Several sorts of beliefs come to mind: the disproportionate attention directed to formal legal procedures and to a "sense of justice" rather than to distributive or other forms of substantive justice; the failure to challenge the legal system's underlying endorsement of capitalist distribution norms; and the insistence that despite every legal system's admitted flaws, law inherently is a good thing (Melton, 1992). It is worth keeping in mind that "popular views of legal issues and principles and law-related social realities are sometimes highly dependent on messages and lessons that are communicated from legal sources (and their proxies in the media) that serve as agents of legal socialization" (Haney, 1997, p. 305).

Procedure, Perception, and Legitimacy

Pointing out that "the tensions between procedure and substance reverberate throughout the legal system" (p. 92), Martha Minow (1998) noted the difficulty of assigning absolute priority to one or the other. Yet whereas social scientists in the past traditionally emphasized distributive justice (Röhl & Machura, 1997), legal theorists and psycholegal researchers alike have increasingly assumed that justice lies at the procedural level (Bell, 1992). Despite concerns about outcomes, it seems clear, people want to be treated fairly, with procedures that satisfy relational concerns such as neutrality, trustworthiness, and status recognition (Tyler, Boeckmann, Smith, & Huo, 1997). Perceptions of fair procedures are often more influential than negative substantive outcomes, a finding that challenges widespread cultural myths that people are only results-oriented, motivated primarily by instrumental rational calculation (Lind & Tyler, 1988; Röhl & Machura, 1997; Tyler et al., 1997; Vermunt & Törnblom, 1996). In general, procedural fairness helps resolve conflicts that are inevitable not just between people with differing statuses but also among those with similar goals, values, and access to power. Investigation of procedural justice can be useful, thus, in clarifying what sorts of procedural arrangements people find desirable and in proposing reforms to enhance procedural protections.

Despite these potential benefits, however, shifting the focus to procedural justice enhances false consciousness in several ways. First, procedures that appear to be fair are often not really fair; sometimes, for example, "fairness" is judged by narrow legal criteria rather than by broader intuitive or commonsense notions. Second, even when procedures are fair technically, the outcome is often predetermined. And third, empirically based assertions that procedures are more "important" than outcomes are sometimes transformed into normative prescriptions: People should care more about procedures, partly because substantive justice is just too hard to define and deliver. In this sense, fair procedures become not just necessary for justice, but sufficient. Unfortunately, when the procedurally correct application of law leads to unfair results, a procedural justice focus has little to offer beyond the generalization that people care more about procedures anyway and the suggestion that authorities should redirect public attention from the result to the method.

The common belief that authorities use fair procedures enhances system legitimacy even when that belief is untrue (Fox, 1993b, 1997a). "Legitimacy--the feeling of obligation to follow the decisions of group authorities and group rules--works to the benefit of group authorities" (Tyler et al., 1997, pp. 196-197). Legitimacy stems in part from a variety of "fetishizing" techniques (McBride, 1974), including the widely disseminated fiction that the law is "separate from--and 'above'--politics, economics, culture, and the values or preferences of judges or any person" (Kairys, 1998, p. 1). Contributing to this alleged separation are "a number of perceived attributes of the legal decision-making process, including judicial subservience to the Constitution, statutes, and precedent; the quasi-scientific, objective nature of legal analysis; and the technical expertise of judges and lawyers" (Kairys, 1998, p. 2). "In a very real sense," Haney (1991) emphasized in his critique of Supreme Court decision making, "the 'consent of the governed' depends upon such fictions" (p. 185).

Some of these attributes were noted by Daly and Tripp (1996), who found that people in organizations, in the absence of information about how decisions are made, are likely to base fairness judgments on outcomes rather than on procedures they cannot observe. They contrasted this finding with formal legal settings, where "due primarily to constitutional guarantees the decision-making procedures are typically visible to the parties involved and much information about how these processes work is made public" (p. 329). Similarly, although "pseudoparticipation" in hierarchical corporate settings can cause what might be termed a "true-consciousness" frustration effect (whereby system participants dismiss elite-dominated procedural protections as obviously biased), this effect is generally absent in legal settings, where decision makers are portrayed as neutral (Cohen, 1985). But when the information given the parties and the public is distorted, any faith in the system's "visible" and "neutral" procedures is equally distorted.

The possibility that procedures are corrupt or inadequate does receive periodic public attention. The media expose cruder miscarriages of justice--judges who accept bribes or sleep through a witness's testimony, lawyers who lie, cops who beat up suspects, bureaucrats who force subordinates to reach predetermined results. But the popular belief that the system can be improved by weeding out a few bad actors is itself a manifestation of false consciousness because it fails to take into account structural constraints on individual action. It also ignores the built-in discretion that allows legal authorities to pick and choose among available options without violating procedural rules, as in "criminal cases where [appellate] courts routinely overlook procedural and constitutional flaws when they think the defendant is in fact guilty" (Lempert & Sanders, 1986, p. 450). Directing attention to corruption ensures that disproportionate energy goes to endlessly cleaning up the system rather than to altering systemic flaws. Worse, every successful prosecution of a crooked judge strengthens official claims that the system works.

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When Procedures are Fair but the Law is Unjust

Even in the absence of overt corruption, legally mandated procedures can be a sham: They may provide no real input into the final decision even when the decision maker does a good job. It is relatively easy for the media and the public to identify dishonest and biased system players. It is harder to grasp that procedural rules enforced by an honest, neutral, justice-seeking decision maker are "written, interpreted, and enforced by people who themselves have substantive interests and purposes" (Minow, 1998, p. 93).

When procedural rules and substantive legal principles leave judges and bureaucrats little discretion, the mandated procedurally correct hearing is merely a pro forma preliminary to a predictable (but now more palatable) outcome. This age-old tactic of giving people a hearing before turning them down pacifies citizen outrage and satisfies reformist demands, reinforces complacency about substantive inequality (Haney, 1991), and makes the role of power invisible (Silbey, 1997). Although providing procedurally correct hearings and appeals may be expensive (and thus must be fought for rather than taken for granted), they are not nearly as expensive and disruptive as establishing a more just society. And as in the case of weeding out corrupt judges, the rare principled victory over institutional power encourages claimants to cling to unrealistic hopes, their lawyers to move on to the next client, and the public to believe that the system really does protect the rights of all. In a similar way, apparently fair procedures such as majority rule, "one person, one vote," and winner-take-all elections dampen support for alternatives that might provide more just outcomes to members of disenfranchised groups (Azzi & Jost, 1997). To the extent law in an unequal society succeeds in becoming status neutral, "it tends to mask the exercise of power and obscure the degree to which law is the servant of one class" (Lempert & Sanders, 1986, p. 439).

The possibility that authorities might use procedural pretense to mask unfair results has not gone unnoticed. Tom Tyler, for example, has often acknowledged that "the procedural justice focus can divert workers from issues which should be of concern to them, leading to a 'false consciousness,' or focus away from their objective interests" (Tyler, 1994, p. 368). Similarly, "the focus on procedure within the polity is also a potential cause for concern. To the extent those holding authority are interested in their own welfare to the detriment of people subject to their authority, a public focus on procedure facilitates the authorities' ability to beguile" (Tyler & Mitchell, 1994, p. 789). Because "government leaders may find it easier to create conditions of 'perceived fairness' than to solve problems or provide needed benefits" (Tyler, Rasinski, & Griffin, 1986, p. 976), "it appears that people's views about procedural justice are dysfunctional" (Tyler & McGraw, 1986, p. 126) and "nonrational" (p. 123). People "pay little attention to the extent to which they have actually influenced decisions" and "view . . . as fair procedures that do not benefit them" (p. 126).

Thus, Tyler is well aware that authorities can manipulate the public; he believes that substantive justice remains important; he acknowledges that "an important criticism of past procedural justice research is that it tends to accept the status quo, studying reactions within the context of existing institutions" (Tyler, 1994, p. 369); and he continues to discuss possible sources of false consciousness. Yet despite all this, he has increasingly deemphasized the prevalence and importance of false consciousness about law. Although in 1986 Tyler and McGraw referred to "objectively disadvantaged groups in American society" (p. 115), more recently Tyler has insisted that "the study of procedural justice is neutral about the quality of the existing legal system"(1990, p. 148): "It is beyond the scope of this book to evaluate whether those studied 'ought' to be more or less satisfied than they are with legal authorities" (1990, p. 148). Tyler et al. (1997) similarly rejected efforts by psychologists to determine which principles of distribution are just because, they asserted, this is "not a psychological question" (p. 58). More generally, because "procedural justice studies lack any way to evaluate the relationship between the subjective and the objective" (Tyler & Mitchell, 1994, p. 790), "it is not possible to determine whether the outcomes people received were unreasonable or undesirable. After all, a person may lose because her case is without merit. This would not be an example of a negative outcome that the person 'ought' to object to, or one that ought to trouble scholars" (p. 790).

Ought, Is, and Justice

Whether scholars "ought" to be troubled by particular results and whether repeated negative outcomes are "unreasonable or undesirable" are indeed normative questions. Not surprisingly, mainstream psycholegal scholars are often urged to avoid such questions, as in Grisso and Saks's (1991) argument that our goal in writing appellate briefs should merely be to push courts to clarify their values and premises, not to advocate particular substantive results. However, the effort to remain (or more often, to appear) neutral often leads to inconsistency. More troubling, it inevitably strengthens the status quo (Fox, 1993b).

Miller (1994) pointed out that Törnblom's (1992) review of the social psychology literature on distributive justice "quickly concludes that the task [of defining justice] is hopeless, that science has nothing to say about it, etc." (p. 168). Törnblom's ought-free conclusion, according to Miller, "is in many ways a source of strength, but it may lead, I conjecture, to a kind of collective mental block against the asking of questions that might threaten the basis of the whole enterprise" (p. 168). And because ridding psychology of normative and political questions is impossible as well as undesirable (Fox & Prilleltensky, 1996; Haney, 1993; Prilleltensky & Fox, 1997), "social scientific work on justice which is not explicitly normative must be examined critically for the value commitments it contains" (Cohen 1987, p. 31).

An example of inconsistency in maintaining scientific neutrality is provided in Tom Tyler's impressive body of work. Despite his insistence on remaining neutral about the quality of legal outcomes, as noted above, Tyler readily makes normative judgments in related contexts. Most troubling is his frequent call to use procedural justice to ensure system legitimacy. Thus, Tyler et al. (1997) approvingly noted that "procedures can act as a cushion of support, allowing authorities to deliver unpopular decisions without losing support in the eyes of the public" (p. 177). The fact that "people are less willing to trust political and legal authorities than in the past" results in "negative consequences, including less willingness to accept judicial decisions and less willingness to comply with the law" (Tyler et al., 1997, p. 85). Yet Tyler does not explain why it is legitimate for psychologists to advocate culturally specific policies that promote diversity, legal compliance, and a "superordinate identity" (Tyler et al., 1997, p. 255) but illegitimate to assess distributive justice or the true prevalence of false consciousness. Similarly, Tyler and Boeckmann (1997) proposed increased education to reduce public punitiveness toward rule-breakers--another normative position--but Tyler apparently makes no such call for education to reduce false consciousness about law, or even for research to demonstrate its existence. It is hard to avoid the conclusion that Tyler presumes the general benevolence of those authorities even as he notes examples to the contrary.

Jost's false consciousness taxonomy might be applied usefully to these issues. For example, if it is true that "people frequently perceive situations to be fair or just, even when there are good reasons to suppose that such situations are not" (Jost, 1995, p. 402), then psycholegal research might clarify what those good reasons might be in legally relevant contexts. Are beliefs in system legitimacy and identification with authorities little more than identification with the aggressor? How are the social roles of passive citizen and lawyer-directed disputant justified? How do fatalism ("you can't fight city hall") and resistance to change (perhaps because our system is "the best there is") affect acceptance of system decisions? Do people blame themselves or one another when they should be blaming system authorities?

Psycholegal researchers have not often addressed issues such as these with a commitment to uncover, expose, and counter false consciousness. That commitment is expressed somewhat more frequently in justice research outside psychology and law. Cohen's discussions of fabrications of justice (1989) and pseudoparticipation (1985) bluntly "focuse[d] on those who benefit from injustice and some of the strategies they use to maintain their unjust advantage" (1989, p. 31). The title of Deutsch and Steil's article "Awakening the Sense of Injustice" (1988) expressed similar priorities. Sampson (1994) called attention to postmodernist and feminist perspectives that demonstrate how "neutral" law embraces traditionally male rather than female viewpoints. Fortunately, these examples do have scattered parallels within our own field (see Fox, 1993b, 1996, 1997b). Haney (1991) criticized the Supreme Court's "let them eat due process" attitude. Melton (1990a) emphasized that psycholegal scholars "can expose myths that falsify . . . experience . . . and provide ruses for protection of a social order inconsistent with legal ideals" (p. 329). Roesch (1995) called upon the field to pay more attention to "the fundamental inequities in our society at large" (p. 329). But for the most part, the modern psycholegal mainstream avoids the broad social justice issues that motivated the field's pioneers.

This avoidance stems partly from lack of consensus about how to define and provide justice and how to determine which of the relevant factors should be preferred under which circumstances. What is the role of equality, equity, and need, for example, in assessments of distributive justice? How should we weigh liberty, equality, and the common good (Simon, 1995)? To what extent is justice captured by commonsense notions of justice and fairness (Finkel, 1995, 1998; Finkel & Sales, 1997)--or perhaps distorted by such notions (Haney, 1997)? Haney (1993) noted that "psychology and law has continued to operate without a shared conception of, or commitment to, justice. We have no clearly articulated theory of value and, therefore, no overarching vision with which to address and reform the legal system" (p. 379). Yet rather than abandoning the area, suggested Haney, our task is to devise "independent definitions [of justice that] . . . might 'make sense' from a psychological perspective" (p. 379). The huge multidisciplinary justice literature is relevant to this effort (Greenberg & Cohen, 1982; Lerner, 1987; Röhl & Machura, 1997; Scherer, 1992; Tapp & Levine, 1977b; Tyler et al., 1997). Especially important is the work of moral philosophers, "who have given the most thought to issues that we believe any student of the legal system, even one who approaches it as a social scientist, should consider" (Lempert & Sanders, 1986. pp. 283-284).

Assessing the moral implications of psychological discourse and action, Prilleltensky (1997) argued that "the consequences of operating without a lucid set of guiding principles can be grave. Numerous assumptions and practices inscribed in our professional mentality can lead to excesses or abuses of power" (p. 518). He added: "The objective is not to reach consensus among all psychologists, nor to foist on the public a particular conception of the good life and the good society. . . . The objective is to generate dialogue about the different conceptions of the good society and how to get there" (Prilleltensky, 1997, p. 518). What is needed is "an integrative model that (a) will require psychologists to articulate their values and (b) will place as much emphasis on moral philosophy as on practice" (p. 519).

Lerner and Torstrick (1994) made a similar point about "the position of the researcher within the research":

Reflexivity, the argument that researchers must take into account their own influence on the outcomes of their studies, has been widely accepted in some social science disciplines. Those social scientists who oppose it fear descent into a chaos where "facts" cease to exist and scientific neutrality is lost. Those who embrace it believe that abandoning the facade of scientific neutrality better allows the researcher to present the pragmatic reality of most social research--multiple, often conflicting, voices and interests, each struggling to present their vision of reality as the true one. Reflexive research requires that researchers interrogate their own position of power within such a struggle, in choosing which voices to hear and which to silence. (pp. 305-306)

Or, as Haney (1980) asserted, the "19th-century positivistic model of science in which we are supposed to be 'value-neutral' (whatever that means). . . . is not workable in psychology and law" (p. 380).

Distributive Justice and Capitalist Distribution

Overemphasizing procedure diverts attention from distributive justice in general and from law's protection of capitalism and class inequality in particular. Capitalist theory's "social-Darwinian ideology and institutional practices" (Lerner, 1982, p. 271) assume that human beings are inherently selfish and competitive (Albee, 1986; Cohen, 1987; Deutsch, 1985; Fox, 1985, 1996; Kohn, 1986, 1990; Lerner, 1982; Prilleltensky, 1994, 1997; Sampson, 1983; Sloan, 1996; Wachtel, 1983; Wexler, 1983). The law's fictitious reasonable person--a self-oriented, asocial individual motivated not at all by concern for others and unusually aware of the law's logic and assumptions--endorses an equally individualistic socioeconomic system marked by the centrality of the profit motive, the enshrinement of economic growth as necessary for individual well-being, the virtues of resource distribution by an equity norm rather than by equality and need, and the insistence that economic victims have only themselves to blame. "The powerful are stereotyped, even by the powerless, in such a way that their success is explained or justified; meanwhile, the powerless are stereotyped (and self-stereotyped) in such a way that their plight is well-deserved and similarly justified" (Jost & Banaji, 1994, p. 13). It is not at all surprising, thus, that false consciousness is central to Marxist critiques (Parenti, 1996).

Mainstream psychologists who do study distributive justice may be looking in the right direction, but they typically examine not justice but perceptions of justice (Törnblom, 1992). Implicit endorsement of capitalist assumptions or advice to political authorities about how to make capitalism more palatable "replicate the same individualistic philosophies that justify a state of social inequality" (Prilleltensky, 1997, p. 523). Indeed, perceived public satisfaction with capitalist distribution may "merely reflect the consequences of one way of organizing society" (Bell & Schokkaert, 1992, p. 248). Rather than taking such expressed satisfaction at face value, Cohen (1987) wondered whether perceptions of fairness should be "probed, for example, with a counterfactual methodology . . . , to imagine in a disciplined way what these understandings, beliefs, and preferences might be without the distortions created by current myths and distributions of power" (p. 31; see also Cohen, 1985, 1986).

The dialectic between procedural and distributive justice complicates any procedural focus. Thus, as Lerner and Torstrick (1994) asked in a related context,

What is the responsibility of the researcher who chooses to investigate employee perceptions of layoffs? Does [such research] provide the data that will allow corporate management to "fabricate justice" and get away with it? Or does such research benefit workers who will witness corporate layoffs anyway, but who may benefit psychologically by feeling they were fairly treated? Whose interests are to be considered: managers', workers', or both? If both, how are the different interests to be balanced? (p. 306)

Tyler (1996) noted that people are less likely to consider procedural fairness important when assessing decisions about welfare or taxes than in other areas because people already know their own class position--the outcome. In other words, poor people who see procedures as fair may consider such fairness relatively unimportant when the law itself allows consistently unsatisfactory outcomes. Yet instead of concluding that systematically unequal distribution makes this assessment reasonable, Tyler suggested that authorities should provide more information about the decision making process "before the outcomes of the decisions are known. . . . This enhances the ability of authorities to gain compliance with their policy decisions" (p. 323). Taking the perspective of the authorities rather than of those at the bottom transforms psychological research into a tool for manipulation.

Layoffs such as those that concerned Lerner and Torstrick (1994) frequently occur in the corporate settings that now dominate the world's economy and cultures (Bonsignore, 1994; Silbey, 1997). Lempert and Sanders (1986) argued that

the growth of corporate power threatens the viability of various institutional arrangements and movements that contribute to social justice [as defined by a Rawlsian perspective]. These include: (1) the efficiency of markets, (2) the participation rights of owners, (3) the association rights of workers, (4) the equal political liberty of unorganized members of society, (5) the equal distribution of welfare, and (6) the reallocation of welfare in accordance with the difference principle [which requires that inequalities can be justified only if they benefit those who are least well-off]. (p. 336)

Insufficient attention is given to evidence that, "when efficient work requires efficient cooperation, almost any movement toward a democratic, egalitarian, cooperative system and away from the more traditional authoritarian, hierarchical, adversarial system of work improves productivity and lessens worker alienation" (Deutsch, 1985, p. 249; see also Kohn, 1986). Experimental research on worker participation too often glosses over the fundamental conflict between workers and employers that leads not to meaningful mutual control but to a pretense of worker input (Cohen, 1985).

Believing reasonably that "corporate decisions which involve harmful consequences should be subject to the same empirical scrutiny as the decisions of individuals in society" (Monahan & Novaco, 1980, p. 18), researchers have examined how executives and managers make decisions, how workers carry them out, and how the public reacts (Hans, 1990; Monahan & Novaco, 1980; Tomkins, Victor, & Adler, 1992). They have also proposed methods to reduce risky and harmful decisions and enhance corporate ethics. These methods fall squarely within the liberal reform political tradition: trying to reduce capitalism's economic, cultural, environmental, and other harms through procedural regulation, incentive programs, and demands that corporate executives become socially responsible (Fox, 1996).

Unfortunately, efforts by researchers to "benefit the business and bureaucratic communities" (Tomkins, Victor, & Adler, 1992, p. 525) pose little challenge to corporate power. Neither does focusing on legally defined corporate crime rather than on broader harms such as environmental destruction and cultural homogenization (e.g., Geis, 1998; see Fox, 1996, 1998). Some justice researchers claim there is now "a clear consensus in our society, if not most of the world, concerning the value of maintaining a free market economy" (Lerner & Torstrick, 1994, p. 301), a view shared even by many who are critical of corporate size and power (Geis, 1998). Any such consensus, to the extent that it exists, would not be surprising after a century and a half of judicial and legislative activity that reversed earlier restrictions on corporate scope, longevity, rights, and functions--restrictions imposed by a citizenry more aware than our own that corporations chartered by the state would ultimately dominate society if allowed to expand at will. Rather than pointing out the obvious dangers and the psychological absurdity of treating huge conglomerates as legal persons, though, psychologists mostly look the other way (Fox, 1996, 1998) or adopt the law's own corporate-friendly criteria to determine what level of risk is "reasonable" (Monahan & Novaco, 1980). Inevitably, trying to turn the pure capitalist free-for-all into procedurally fair competition impedes efforts to create a society where forced competition is no longer legally and economically required.

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Can Law be Just?

Barrington Moore (1978) noted that popular criticism of oppressive systems most often targets individual elites who depart from approved standards. Next in frequency comes criticism of the entire class of elites. But "only the most radical forms of criticism have raised the question whether kings, capitalists, priests, generals, bureaucrats, etc., serve any useful social purpose at all" (Moore, 1978, p. 84). Applying Moore's analysis, legal reformers at the first level simply seek to rid the law of corruption and other abuses that violate the system's self-justifications. At the second level, "crudely instrumental" Marxist theorists (especially in the past) considered law a tool to be shaped by those who controlled it (Lempert & Sanders, 1986); in this view, although normally the law serves capitalist elites, eventually it might serve workers, or citizens in general.

At the third level, in contrast, anarchists and some others claim that law bureaucratizes relationships and creates injustice regardless of who controls it (Fox, 1993a). What counts in legal decision making are discrete provable facts relevant to logically derived abstract principles--not humane, individualized decisions. Indeed, the insistence on procedurally correct, context-free decisions by neutral, autonomous legal institutions, devoid of subjectivity and emotion, is commonly portrayed as one of law's strong points, distinguishing it from more "primitive" systems where individuals allegedly suffer at the whim of despotic or arbitrary rulers. Noting that human groups resolved disputes and maintained order without legal systems--and mostly without authoritarian brutality--for most of human history (Barclay, 1982; Clastres, 1974/1977; Orbell & Rutherford, 1973), anarchists attribute injustice and oppression not to a failure to achieve legal ideals but to the very rule of law. "A system of law, not of people" is the problem, not the solution.

As one example, Lempert and Sanders (1986) identified three general principles guiding judicial decision making under United States law: Intervention is reactive, generally limited to resolving actual cases or controversies rather than foreseeable issues; results are decided on narrow grounds divorced from the broader context; and courts "should declare a winner and a loser rather than impose some kind of compromise" (p. 201). Yet although principles such as these may at times be beneficial, imposing group-level categories and abstract principles regardless of individual circumstances inevitably causes unjust hardship. Powerlessness--in this case, the inability to use the law to end injustice and advance important values and interests--is brushed aside, transformed from a social problem into an annoying irrelevancy as the law applies its legally reasoned outcomes. As Lempert and Sanders pointed out, judicial formalism's focus on procedures, rules, and categories "poses problems for those who attempt to use the law as an instrument of social justice" (p. 416).

One of those problems is formal law's displacement of equity (Fox, 1993a; Newman, 1965). In theory, legal systems allow an equity-based decision to replace a legally required outcome when doing so is necessary to reach a just result in a specific case. This equity principle traditionally has been attributed to "a sense of justice which is innate in human nature, however diverse may be the explanation of its presence" (Newman, 1965, p. 410). (In this general fairness sense, thus, equity differs from social psychology's more specific equity norm, according to which distribution of resources is proportionate to input rather than based on equality or need.) Menkel-Meadow (1985) identified equity with a female, relationship-based response to harsher male-dominated law, paralleling Gilligan's (1982) distinction between female (caring-based) and male (rights-based) modes of moral judgment and Bakan's (1966) distinction between communion and agency.

Unlike the ideal rule of law, real people seeking equity take into account individual circumstances as well as "commonsense justice" (Finkel, 1995, 1997, 1998; Finkel & Sales, 1997). This process can lead to both positive and negative results. Appeals to commonsense justice may sometimes simply mask prejudice, and "there actually may be multiple versions [of justice] that have competing claims on both popular consciousness and legal authority" (Haney, 1997, p. 306). In general, though, for good and sometimes for bad, "attending to equities . . . implies a movement away from clear legal rules" (Lempert & Sanders, 1986, p. 257). According to Finkel, "the commonsense context is typically wider than the law's. . . . Whereas the law seems to freeze the frame at the moment of the act and then zoom in on a specific set of determinative variables, the commonsense context, like a motion picture, conveys actions before, during, and even after the moment of the act" (1995, p. 319). Equity principles abound in the movement to replace legalism and retribution with alternatives such as mediation and restorative justice, though the degree to which these methods can succeed without far-reaching changes in social structure remains unclear.

The equity principle is especially compatible with modern anarchist theory, which generally views the development of state legal systems as the forced imposition of centralized control over societies with long-standing local norms (Diamond, 1974). By identifying concerns at the intersection of individual autonomy, the nature of community, and state power, anarchism offers psychology much food for thought (Chomsky, 1973; Ehrlich, 1996; Fox, 1985, 1986, 1993a, 1993c; Fromm, 1955; Goodman, 1966/1979; Maslow, 1971; Sarason, 1976). Community psychologist Seymour Sarason (1976), for example, directed attention to the central anarchist insight: State power should be viewed suspiciously because the centralized state inhibits both individual autonomy and psychological sense of community. From an anarchist perspective, law's short- and long-term gains simultaneously create a greater dependency on legal authorities, reducing the ability to work together to solve problems and resolve conflicts. The anarchist emphasis on maximizing individual autonomy within a mutually supportive community has direct relevance to calls by psychologists for a better balance between autonomy and psychological sense of community (Fox, 1985, 1993a; Sarason, 1976), agency and communion (Bakan, 1966), equity and equality (Sampson, 1976), emancipation and communion (Prilleltensky, 1997), and male and female modes of moral judgment (Gilligan, 1982). Psycholegal examination of issues ranging from jury nullification and the necessity defense to the untapped potential of the U. S. Constitution's Ninth Amendment can all benefit from an anarchist, equity-focused framework (Fox, 1993a).

The tendency of law to drive out equity--or, using different terminology, the tendency of abstract justice principles and legally defined rights to drive out compassion and caring--makes even a genuinely justice-seeking legal system suspect. Thus, although Haney (1997) "believe[s] it is time to think much more systematically about how the legal system can facilitate the operation of commonsense justice and minimize the role played by common prejudice" (p. 309), it is not clear how this effort can withstand the law's narrowed scope. Any belief that unfair results must stand because "that's the law" directs attention away from injustice and justifies lack of caring. Judges who take circumstances into account and interpret cases with a sympathetic moral reading, as Melton (1990b) approvingly noted of Supreme Court Justice Harry Blackmun, are often criticized rather than emulated. As might be expected, thus, judges typically construe equity and related commonsense justice principles narrowly or ignore them entirely.

Inaccurate or superficial assumptions about human nature also enhance system legitimacy. According to Tapp (1974), the myth of humankind's lawlessness ignores the fact that "the search for rules and rule dependency appears early in human life and is visible across all activity from games to government and language to law" (p. 53). "In essence," she added, "no community is truly lawless," and adherence to the myth perpetuates a law-and-order mentality. Tapp also pointed to the legality myth, with its "crippling . . . assumption that legality and its correlates of justice, obligation, and responsibility reside only in the law. . . . If [this assumption] continues . . . then the emergence of an authoritarian repressive law is more likely" (p. 54).

Tapp's (1974) concerns have been echoed by others. Lerner noted that "all phases of our legal institutions designed to maintain social control and social integration serve to perpetuate the assumption that people need to be controlled, that otherwise they would do something harmful or at least undesirably selfish" (1982, p. 271). Shklar emphasized that "the real realm of injustice is not in an amoral and prelegal state of nature. . . . Most injustices occur continuously within the framework of an established polity with an operative system of law, in normal times" (1990, p. 19). Calling for more attention to the psychology of law rather than merely the use of psychology in law, Haney (1980) suggested that "psychology may be used to help explain the very origins and existence of law" (p. 156): "It may attempt to answer why, how, and under what circumstances 'law' comes into being. Here it would address the question of why people 'need' law (or feel that they do), primarily by examining the psychological functions law serves" (p. 156). Inevitably, the belief that people behave justly and responsibly only because the law requires it lowers our expectations for our own actions as well those of others, just as the belief that people are naturally selfish provides support for capitalism. The result--fed by inaccurate media reports of crime and other fear-inducing events--is the distortion of commonsense justice (Haney, 1997) and an increased demand for the kind of authoritarian law that Tapp (1974) warned us about.

Melton (1990b) argued that "human dignity [is] the actual primary goal of the law and the goal that the law should have" (p. 262). His optimism is not universally shared (Fox, 1993b, 1997b). According to Grant Gilmore's (1975),

The better the society, the less law there will be. In Heaven, there will be no law, and the lion will lie down with the lamb. An unjust society will reflect its values in an unjust law. The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed. (p. 1044)

After reading an earlier draft of this article, John Jost asked a reasonable question: "Why should anyone believe this? . . . . What about groups that are discriminated against? Do the lambs want to lie with the lions?" (personal communication, December 4, 1997). Indeed, anarchists have considered how ad hoc or community-based law-like institutions might inhibit abuse of power and other injustices through mutuality and collaborative decision making rather than centralized bureaucratic or authoritarian rule (Ehrlich, 1996, 1997; Ehrlich, Ehrlich, DeLeon, & Morris, 1996; Fox, 1985, 1993a; Holterman & van Maarseveen, 1984). In response to claims that law as we know it is necessary in modern society and to data suggesting that equity-based decisions require value consensus (Lempert & Sanders, 1986), that commonsense justice is distorted by media and other institutions (Haney, 1997), and that people tend to afford outsiders less justice than they do insiders (Boeckmann & Tyler, 1997), anarchists urge the experimental and imaginative creation of fundamentally different forms of social organization. Finished blueprints are not likely to prove useful. Yet according to social psychologist Howard Ehrlich, anarchism "has become much more serious, much more willing to address fundamental philosophical and practical political questions" (1996, p. viii).

The claim that law is based on justice may be made more frequently by politicians than by lawyers, and by trial judges thanking jurors than by appellate judges analyzing a case. But despite being off the mark, it is commonly accepted by the public as reflecting an ideal state of affairs. On the one hand, thus, the rule of law is defended as distinct from, and superior to, individualized justice; at the same time adherence to law is publicly portrayed as justice itself. This slippery double-edged message is ripe for psycholegal dissection.

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Conclusion

Tod Sloan (1997) claimed that "while the emancipatory interest is relatively inoperative in mainstream psychology, it is this interest that the general public expects the field . . . to serve" (p. 96). He added: "People do not need a set of universal principles or laws of behavior. Instead, people need to be invited by psychologists and other social scientists to participate in an ongoing process of reflection on our personal and collective problems in living meaningfully" (p. 97). As psychologists, we ourselves need to reflect on the possible forms of the good life and the good society (Prilleltensky & Fox, 1997). Because every approach to psychology incorporates its own values, assumptions, and practices as well as its own benefits and risks (Prilleltensky, 1997), it is all the more important to choose our approach consciously rather than find ourselves immersed in one by default.

How might psycholegal scholars proceed? Adopting a reflexive research stance (Lerner & Torstrick, 1994), we might pay more critical attention to the subjective experience of law and the development of legal consciousness, as advocated by adherents of a psychological jurisprudence seeking to direct law toward human dignity, personal autonomy, and social justice (Melton, 1988; Melton & Saks, 1986). Rather than gloss over bizarre legal fictions such as corporate personhood, assess abstract principles as more central than real people, and endorse individualistic legal rights to the exclusion of community interaction and collaboration, we might consider how such legal basics have led to unsatisfying lives in an unjust society. Adopting empowering and postmodern approaches that use "deconstructive methods to uncover oppressive messages inherent in social, cultural, and scientific discourses" (Prilleltensky, 1997, p. 528), we might "sensitize nonlegal audiences about the gaps between legal ideals and psychological realities" (Haney, 1980, p. 181), expose crucial legal fictions as fabrications of justice (Cohen, 1989), and break through the pluralistic ignorance that dampens protests by dissatisfied individuals who mistakenly believe their concerns are not widespread (Jost, 1995; Miller & McFarland, 1991). We can try to ensure that commonsense justice is not distorted by media excess (Finkel, 1997) and by law's bureaucratically rational maintenance of long-standing inequities. Throughout, we can address

the political context of domination and subordination which surrounds most of our thinking and behaving in the social world. The phenomenon of false consciousness provides just such an opportunity. Affective and cognitive bases of human error are now well understood; virtually no attention, however, has been given to social and political circumstances (such as status, power, inequality, injustice, exploitation, and abuse) that foster negative illusions." (Jost, 1995, p. 413).

Exposing false consciousness and seeking to end injustice would be true to our field's roots. Felice Levine's (1994) comments upon the death of June Louin Tapp are instructive. Levine placed Tapp's contributions to the founding of the American Psychology-Law Society in the context of a lifetime as a "justice seeker, a social scientist with a social conscience":

There is probably no theme more consistent throughout June's work than her aim to understand and explain "justice" as a social phenomenon . . . . Her pioneering efforts in legal socialization and all of her subsequent work in psychology and law had justice at the core. This interest impelled her to understand and explain the nature of legality and to ferret out the social policy implications of just and unjust social exchange.

For June, justice was a dynamic concept, embedded in the lives of people in their social contexts. In the early 1960s, this led her to work with Saul Alinsky and study African American men in Woodlawn (one of the most impoverished communities in Chicago); in the 1970s, this led her to work with a team of graduate students on the Wounded Knee Trial (as advisor and researcher-scholar). Also, it led her to articulate ethical principles for the conduct of research on diverse cultures and on prisoner and other dependent populations, which remain as standards today. (p. 965)

Perhaps comprehensive social change seemed more possible in the midst of sixties protest. On the other hand, perhaps today we settle for too little. Aiming too high at least clarified how far we really need to go, regardless of how difficult and controversial the effort. Today psychology and law aims too low, partly because its practitioners see themselves as insiders within the legal system (Haney, 1980; Melton, 1990a), just as psychologists are insiders in other policy institutions (Herman, 1995). This insider orientation allows psychologists to propose, implement, and assess minor reforms of societal institutions and even occasionally to expose oppressive practices. But a depoliticized, insider psychology and law raises the danger of co-optation (Haney, 1980) and provides tools used for repression rather than for liberation (Fox, 1993b).

Efforts "to rekindle the vision and commitment of those early years" (Haney, 1993, p. 392) may be inspired by the frustration of trying to end systemic injustice one limited reform at a time, with the resolution of one issue complicating others while bringing about unpredicted and unintended side effects (Fox, 1985, 1991). They may stem from applying to law the action-oriented "strategies and tactics of community psychology" (Roesch, 1995, p. 331) or insights from other strands of critical psychology (Fox & Prilleltensky, 1997; Sloan, 1998), or from explicitly radical philosophies (Caudill & Gold, 1995) such as Marxism (Belliotti, 1995), feminism (Smith, 1993), anarchism (Fox, 1993a; Holterman & van Maarseveen, 1984), critical legal studies (Kairys, 1998), or a still-developing "emancipatory communitarianism" (Prilleltensky, 1997). Or they may be motivated by concerns such as the increasing "racialization of punishment" (Haney, 1997, p. 312). Whatever the motivation, the insistence on system-wide change holds the most promise for effective solutions.

Although the system creates people "whose minds work to preserve the status quo at all costs" (Jost & Banaji, 1994, p. 15), "the sensitivity to injustice can be increased by providing social support for its acknowledgment and viable options for its remedy" (Deutsch, 1985, p. 321). We may not have consensus about ultimate goals. We may not yet understand how and where to institutionalize alternative dispute resolution techniques in modern societies lacking common values and cultural understandings (Lempert &Sanders, 1986); or what to do when commonsense notions of justice and fairness are distorted by cultural myths (Haney, 1997); or which sociopolitical and community changes will best counter the isolation that leads to derogation of outsiders (e.g., Boeckmann & Tyler, 1997). But despite all that we do not know, we do know "a great deal about psychological processes that lead to oppression" (Prilleltensky, 1997, p. 530). Using this knowledge, it is time to "challenge the common sense through which we interpret the world" (Montero, 1997, p. 243) and demonstrate that alternative arrangements are both imaginable and reachable (Cohen, 1987).

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Related Material

Book Chapters

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Articles

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Book

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Presentations & Unpublished Papers

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Courses

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Organization

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