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Law Against Social Change

Dennis R. Fox

1991

Paper presented at the annual convention of the American Psychological Association, San Francisco

A much revised version of this paper, which examines how law inhibits social change, formed part of the longer article Psychological Jurisprudence and Radical Social Change, some of which is developed further in Psychology and Law: Justice Diverted.

What follows the abstract is a summary of part of the full paper.





 

Abstract

Well-meaning efforts by liberal psychologists to reform the law in keeping with values such as dignity, privacy, justice, and equality are often misguided because law exists to serve the status quo. Law inhibits the systemic, radical social change necessary for psychological and societal well-being. It does so through coercive power, substantive assumptions about human nature, the ideology of law's legitimacy, a preoccupation with procedure rather than substance, a focus on rational technicality rather than equity, and encouragement for limited, self-defeating legal solutions. Psycholegal scholars should arouse public dissatisfaction with law and assist social movements seeking to overcome legal impediments to social change.


Summary

[This is a summary of part of the paper that I prepared for a class.]

Psychologists often advocate legal reform because they believe that psychology and law have similar values and, consequently, that the two can be partners in efforts to improve society. Not all of us, however, are comfortable with such close ties to the status quo. A large literature within psychology presents an alternative view: that we should instead break our mainstream bonds and seek radical social change in order to create a humane, egalitarian, just society.

Since I share this alternative view, I evaluate the law differently from my liberal peers. Instead of compatibility between law and psychology, I see conflict. Instead of minor reform as reasonable, I see it too often as a hindrance to social transformation. And instead of law being a useful tool, I see it as an inevitable weapon against radical activism. Law, in short, is an an opponent rather than an ally of those seeking fundamental change.

Much psycholegal work is already relevant to the maintenance function of law. What is needed is a reexamination of this function from the perspective of an outsider rather than an insider. In my limited time today, I want to comment on six related ways that law prevents social change.


1. Heavy Handed Use of Coercive Power

The first way that law presents social change is obvious: Coercion. As Lawrence Friedman put it,

Law has its hidden persuaders--its moral basis, its legitimacy--but in the last analysis it has force, too, to back it up. Law carries a powerful stick: the threat of force. This is the fist inside its velvet glove.

Law is used directly and indirectly to hinder both legal and illegal social change efforts. Electoral challenges, for example, are deflected by state legislatures, which devise unreasonable deadlines, excessive petition requirements, and other hassles to keep third parties off the ballot. As an old anarchist slogan put it, if voting could change the system, it would be illegal.

Activists fare little better in court. Given litigation delays, costs, procedural pitfalls, and judges' backgrounds, radicals are rarely successful. The doctrines of standing, governmental immunity, and political questions, the substance of conservative legal principles, and the likelihood of reversal upon appeal limit how much even a sympathetic judge can allow activists to win. Since law is created by the powerful rather than the weak, dissident concerns are often simply dismissed as frivolous.

When activists demonstrate peacefully, they often find the law against them. Although it is no longer legitimate to arrest those who advocate change, the benign view of our "First Amendment freedoms" has a fairly short history, and has never been as absolute as many think. In the wake of the Persian Gulf War, and remembering the recent treatment given flag burners, any confidence that the public supports truly free speech is unwarranted. Surveillance, infliltration, and repression of legal activist groups continue.

Harassment of activists doesn't come just from government. Corporations often file libel and other lawsuits against people who use letters to newspapers, public statements, and similar methods to criticize corporate projects such as toxic waste dumps. More than 1000 of these "Strategic Lawsuits Against Public Participation" have been filed within the past decade. Although most of these suits are legally "unsuccessful" in that free speech rights are upheld and the activist pays no damages, the suits serve their purposes of transforming political debates into private disputes and, more significantly, tieing up activist's time and resources, bankrupting the activist, often causing the abandonment of public advocacy.

When activists move on to direct action and civil disobedience, law's coercive force is clearest. Police infiltration and instigation of violent activities, selective prosecution, and preventive detention add to the likelihood of guilty verdicts and disproportionate sentences. Judges usually prevent defendants from presenting a necessity defense based on their motivations for breaking the law. When the jury is told the incident is a "simple trespassing case," for example, rather than a political act, the primary concern of the activist is dismissed as irrelevant. Similarly, judges in most states do not tell juries about jury nullification, which allows jurors to acquit despite the evidence. The result in both cases is that activists are likely to be convicted even if the jury is sympathetic.

In response to legal coercion, psychologists have helped defend political defendants, and this help should be expanded. Despite the value of these efforts, though, their limitations should be kept in mind. Tools devised for radical purposes cannot be restricted to those ends; any useful methods will be adopted by more powerful forces. For example, scientific jury selection, developed to help the Harrisburg Seven defend themselves against Vietnam-era conspiracy charges, is mostly used today not by activists but by large corporations paying high fees to Litigation Sciences and similar companies.

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2. Substantive Assumptions About Human Nature

The second way law opposes social change is through its assumptions about human behavior. Psychologists seek to identify these, but more attention should be paid to two underlying assumptions discussed by June Tapp. "The myth of humankind's inherent lawlessness," according to Tapp, 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." "In essence," she added, "no community is truly lawless," and adherence to the myth perpetuates a law-and-order mentality.

The flip side of the lawlessness myth is the legality myth. As Tapp noted,

The crippling aspect of the legality myth is the assumption that legality and its correlates of justice, obligation, and responsibility reside only in the law. . . . If [this] continues . . . then the emergence of an authoritarian repressive law is more likely.

Both myths, I suggest, lead us to see calls for social change as dangerous rather than liberating.

 


3. The Ideology of Law's Legitimacy

The third way law inhibits social change is through the central myth that the law is "legitimate," that obedience to law is appropriate because legal authorities have the right to make demands. This belief, according to Friedman, "prevents anarchy and induces people to obey orders and commands without the use of force." Legitimacy is necessary for the political system to continue in its current form, since (as Haney put it) "in a very real sense, the 'consent of the governed' depends upon such fictions," including the fiction that law is sacred (McBride).

Psycholegal scholars who assume law's legitimacy should consider the degree to which their own views are shaped by the legitimacy ideology. Isaac Prilleltensky recently noted that "At best, [psychology's conforming message] may be preventing changes that could enhance the well-being of the population. At worst, it may be silently endorsing unjust social practices," reinforcing dominant values through

so-called value-free scientific statements that provide an asocial image of the human being . . . essentially independent from sociohistorical circumstances. [This leads people] to underestimate the impact of adverse social conditions on their lives, thereby reducing the likelihood of engaging in activities in defiance of the status quo.

 


4. Preoccupation With Procedure Rather Than Substance

The fourth way law opposes social change is in blunting appeals for substantive justice by focusing instead on procedural justice. As Tom Tyler noted, research such as his on procedural justice poses a potential danger when it identifies the degree to which legal procedures are seen as satisfying or fair, because "Government leaders may find it easier to create conditions of 'perceived fairness' than to solve problems or provide needed benefits." Although Tyler minimized the possibility of this false consciousness, Haney saw this as the Supreme Court's "let them eat due process approach." Rather than remaining neutral and dispassionate, exposing false consciousness should be one of our central concerns.

 


5. Focus on Rational Technicality Rather Than Equity

The fifth way law stands against social change is the insistence that "the rule of law" is superior to nonlaw, that the United States is a "government of law, not of men." Related to the lawlessness and legality myths is the assumption that problems should be resolved through law--seen as objective, rational, and hardnosed--rather than through nonlegal means--seen as subjective, ruthless, and unpredictable. Law is better, it is said, even if the application of general principle to a particular case brings an unfair result, because the only alternative to law is chaos.

The opposite of legal technicality, however, is not chaos, but equity. Under equity principles, legal technicalities can be set aside to prevent injustice. As might be expected, although equity's use as a discretionary corrective is accepted in theory in most legal systems, in practice judges often dismiss it precisely because equity implies that the law is inadequate. Consequently, equity has been limited to narrow areas of law and to relatively ineffective remedies. As already noted, judges resist application of equity-like doctrines such as jury nullification and the necessity defense.

 


6. The Self-Defeating Character of Legal Solutions

The final way law opposes social change has to do with the self-defeating character of legal solutions, despite their seductive appeal. There are three points I want to make. First, reform is seductive because it assumes that law can be transformed so significantly that it will operate at a "higher principled level," as Tapp put it. This is doubtful, though, because the reasons for which law exists conflict with principled levels of reasoning and ethics. Law exists to maintain rather than change the status quo, to protect some at the expense of others, to control rather than liberate.

Second, reform efforts may succeed, but at the cost of unpredicted "side-effects" that complicate other problems or lead to long-term failure. A systems perspective must acknowledge that social problems are interconnected rather than isolated.

Third, and most important, the very success of legal solutions makes things worse, because legal solutions reduce people's ability and motivation to work together with others on community solutions to social problems. Legal reforms may work, but only by forcing complex human interactions into an artificial framework, creating dependency on legal authorities. Black noted that "in theory, law makes trustworthiness unnecessary, even obsolete. When law is fully in command, morality itself loses relevance. Right and wrong become a specialty of professionals such as lawyers, police, and judges." McBride argued that law "has an alienating or even a repressive effect . . . , especially on those who occupy subordinate social roles." And Lerner pointed out that law teaches us that we are not capable of being good unless we are forced to be good.

 


Conclusion

Relying on law to transform people's behavior is always risky and often short-sighted. Instead of a technologial quick fix, we should radically transform social structures so that beneficial behavior develops naturally under the circumstances rather than because of legal threats or the mystification of legitimacy.

As psychologists, we should become more familiar with the literatures on value change and empowerment, social movement participation, and utopian communities. We should be advocates for radical perspectives defensible on both psychological and political grounds, in keeping with values such as dignity, autonomy, equality, and justice.

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