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A Critical-Psychology Approach
to Law’s Legitimacy

Dennis R. Fox

Legal Studies Forum, 25, 519-538.

Earlier version 1997

False Consciousness About Law's Legitimacy

Translated into Spanish & published originally as Falsa conciencia sobre la legitimidad de la ley
in Psicología Política, 15, 39-57

After Critical Psychology: An Introduction came out, Adela Garzón, editor of the Spanish journal Psicología Política, asked me to expand on parts of my chapter Psychology and Law: Justice Diverted.

In response, I expanded my previous brief mentions of false consciousness, helped by John Jost's efforts to reinsert the concept into psychology. In the article I discuss several ways false consciousness about law is exacerbated by mainstream psychology's focus on procedural rather than substantive justice.

I later revised the article slightly for Legal Studies Forum and added a new introduction with more explicit concepts from critical psychology. This is the version presented here and now reprinted in the 2009 International Library of Medicine, Ethics and Law: Mental Illness, Medicine, and Law.

Note: This version does not exactly match either published version!


New approaches in critical psychology have the potential to focus psychologists’ attention on the underside of law, particularly issues relating to legitimacy and justice. For the legal system to retain its legitimacy, the public must believe that law differs from politics as usual. Psychologists of law can assess the role of myth in law’s legitimacy and counter false consciousness that masks injustices created or maintained by legal institutions. Primary components of false consciousness about law are the belief that procedural justice is more important than substantive justice, the acceptance of legal doctrines that support corporate capitalism, and the belief that the rule of law is superior to individualized justice. Anarchist political theory in particular focuses attention on the negative aspects of law.

Full Paper

When the field of psychology and law became institutionalized three decades ago with the birth of an organization and a journal, the central goal of pioneering psychologists of law was to promote justice. That goal paralleled the effort within critical legal studies to identify and oppose law's oppressive tendencies and reshape law as an agent of human freedom and equality. Unfortunately, early efforts to expose psychological mechanisms contributing to injustice have since declined. As a consequence, today's legal psychology mainstream too often limits expectations of, and demands for, justice both within law and outside the law (Fox, 1999).

The field's reduced justice focus can be seen in legal psychology textbooks that emphasize presumed differences between psychology and law while minimizing some troubling similarities. Law is doctrinal, the writers tell us, whereas psychology is empirical. Law is adversarial, while psychology seeks a single comprehensive truth. Law is emphatic, psychology tentative and cautious. At the same time, the texts generally underemphasize some shared traits: Both fields have been used for social control and the service of elite needs. Both emphasize individualism, generally attributing responsibility and guilt to persons rather than to relationships or institutions. And both rely on and strengthen ideological defenses of an unjust status quo.

In the field of psychology more broadly, critical psychologists increasingly call on their field to alter its own status quo and embrace more liberatory alternatives (Fox & Prilleltensky, 1997; Sloan, 2000). Although many differences exist among critical psychologists inspired by disparate traditions, several propositions (resembling those common among critical legal scholars) draw widespread support:

a. Psychology's values, assumptions, and practices have been culturally and historically determined, reflecting among other things the prevailing socioeconomic setting, political affinities, responses to external pressures, and battles over power, professionalism, and turf. In contrast, mainstream psychology generally portrays itself as progressing through objective, scientific, "value-free" progress....

b. Modern society is marked by widespread injustice, inequality, and systemic barriers to both survival and meaning. To explain the origins of the unacceptable status quo and to justify its continuation, dominant institutions inculcate a psychologized ideology and use the process of false consciousness to encourage widespread belief in unjustified assumptions about human nature. Societal elites may or may not believe the ideology they disseminate; in either case it narrows the range of institutional arrangements the society considers possible and desirable and encourages people to accept unjust outcomes. (A capitalist economic system is justified by the insistence that human beings are inherently selfish, competitive, and accumulative and that people who fall behind have only themselves to blame; people learn to expect the worst from others and from themselves. A legal and political system whose essential principles, procedures, and styles were created by white privileged men with substantial property is justified by the false claim that today everyone is treated equally; because the law is unconcerned with unjust outcomes so long as approved procedures are followed, substantive justice is displaced by the perception of procedural justice.)

c. In their everyday work, mainstream psychologists too often contribute to complacency at one extreme and oppression at the other. This is the case whether they are well-intentioned and avowedly apolitical helping professionals or, less commonly, conscious agents of social control. Mainstream psychologists typically overemphasize individualism, the narrow pursuit of personal goals, and either adapting to or bypassing societal norms and expectations; they de-emphasize mutuality beyond the family, justice, and the need for institutional change. Mainstream psychology and critical psychology differ, thus, in their level of analysis....

d. Critical psychology seeks to alter, and ultimately provide alternatives to, both mainstream psychology's norms and the societal institutions that those norms strengthen. Desired values such as social justice, self-determination and participation, caring and compassion, health, and human diversity must be advanced in a balanced way, with awareness that some of these culturally specific values have more potential for social transformation than others. Our ultimate goal is to respect and enhance both individuality and diversity within a mutually supportive just and equal society. (Fox, 2000, pp. 25-27)

These four propositions are directly relevant to how psychologists of law might approach legal theory and legal practice. Unfortunately, as in law, psychology's mainstream is uncritical of its own assumptions, and psychology lags behind law in the visibility of critical efforts.

Approaching Legitimacy

To modernized publics, the electoral ballot and the formal courtroom symbolize the superiority of a law-based civil society over authoritarian reliance on brute force. Given the degree to which dictatorial regimes resist the transition to representative democracy, this symbolism is understandable. Surely the opposition of dictators and oligarchies to the creation of autonomous legal institutions demonstrates that the use of law to maintain order and resolve disputes will benefit members of society at the expense of the old guard. The rush by Western legal experts to help authorities in the fragmented Soviet empire write new constitutions and devise independent judicial systems follows from the assumption that law is self-evidently a good thing for those seeking justice, equality, and freedom. As Susan Silbey (1997) noted, American legal practices--often mandated by the International Monetary Fund and the World Bank--circulate around the globe, as do public images of law based on American television.

Unfortunately, the perspective of Western mainstream psychologists parallels that of most citizens in the new democracies: Psychologists routinely endorse law as the guarantor of justice and human rights, believing that despite its shortcomings "law is a good thing" (Melton, 1990). Although relief at the downfall of authoritarian regimes makes sense, the broad endorsement of legal institutions in general, and of American legal institutions in particular, strikes me as a mistake. Silbey's (1997) caution about the globalization of American law is worth emphasizing: "I am worried about how local justice can be achieved within a supposedly universal, all-purpose, one-size-fits-all law" (p. 222).

Unlike scholars in some other fields, psychologists pay little attention to law's potential downside even as they examine discretionary factors in legal decision making and propose relatively minor reforms to smooth the workings of legal institutions. They rarely pose more significant questions that go to the heart of law's inherently political and often unjust nature: How might law actually make life worse for people? How does law ensure the maintenance of societal inequality and power imbalances? When does law provide the appearance of justice without the reality? To what extent does reliance on law deflect attention from other solutions to societal problems? More often, psychologists focus instead on less controversial topics that fail to challenge the legal status quo. Thus, system-challenging questions are typically "absent"--underemphasized, brushed aside--as are other important absences in political psychology and elsewhere (Montero, 1997). Crucially, the role of false consciousness in maintaining system legitimacy is not given enough attention by psychologists (Jost, 1995).

The widespread endorsement of law parallels mainstream psychology's more general endorsement of society's status quo (Fox & Prilleltensky, 1997). Psychologists typically see themselves as insiders within the legal system (Melton, 1990) just as they see themselves as insiders in society's other dominant policy institutions, particularly in the United States (Herman, 1995). This insider orientation allows psychologists to propose, implement, and assess minor reforms of societal institutions and even occasionally to expose oppressive practices. However, when important social problems persist because of conflicting values and competing interests rather than because the authorities lack accurate data (Fox, 1991), any belief that being inside will lead to social change is unrealistic.

Tellingly, a recent book on radical philosophies of law (Caudill & Gold, 1994) included contributions from law, political science, sociology, and other fields, but not from psychology. Even psychologists who are developing a psychological jurisprudence that seeks to redirect legal institutions typically mirror rather than challenge popular myths about law (Fox, 1993b, 1997). The notion 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) blocks the development of alternative approaches more suspicious of received wisdom and more amenable to fundamental societal change.

In this article I first consider law's legitimacy, taking into account the role of myth and the relevance of conflicting views about law. I then speculate about several components of false consciousness about law. I conclude by suggesting directions for future work by critical psychologists of law.

Legitimacy and Myth

Especially in representative democracies, the survival of state institutions depends on their perceived legitimacy (Kairys, 1990). According to legitimacy theorists, most people obey authorities not just to avoid punishment but because they believe those authorities have the right to make demands and because they feel that complying is the right thing to do. Whether apparently increasing political cynicism has undercut legitimacy is an open question, but to the extent that it exists, legitimacy remains a significant barrier to movements for social change that confront not just the state's power but the public's endorsement of that power (Lefcourt, 1971). The state, in other words, can leave its tanks hidden except during extraordinary system challenges. "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). For the most part, the public polices itself.

The law claims legitimacy on two distinct grounds. On one level, legal authorities are formally granted the power to carry out state mandates. In this way, the law as an agent of the state absorbs the state's legitimacy and has the power of the state to back it up with force when necessary. This form of legitimacy flows from the political state, and is secondary to it. It is the form most relevant to cruder depictions of legal dominance that see judicial power as merely subservient to the state rather than as autonomous.

At a more central level, law is legitimate in its own right, as something different from the state. Legal authorities often proclaim the law to be

separate from--and "above"--politics, economics, culture, and the values or preferences of judges. This separation is supposedly accomplished and ensured by a number of perceived attributes of the decision-making process, including judicial subservience to a Constitution, statutes, and precedent; the quasi scientific, objective nature of legal analysis; and the technical expertise of judges and lawyers. (Kairys, 1990, p. 1)

In this view, law is not really "part of" the government, as demonstrated when judges occasionally block governmental actions or demand that political authorities comply with the law. Unlike some of its regrettably flawed practitioners, and unlike political parties and social movements, the essence of law is neutral, rational, truthful, and autonomous.

Although law schools make it clear that the law is not a book of rules (especially in a common-law country such as the U.S.) and that conflicting principles and values can lead to a variety of legitimate ends, they teach the specialized artificial language that judges expect when lawyers try to demonstrate which single course of action is "correct" (Kennedy, 1990). Similarly, appellate judges overturn trial court decisions not by acknowledging they disagree or that they have different values, but by declaring the trial judge's actions objectively wrong. Logical connections between one case and the next are emphasized; the central role of judicial discretion is minimized; sometimes, with a deceptively straight face, it is even denied. Through these and other "fetishizing" techniques (McBride, 1974), the system enhances its legitimacy.

That legitimacy reaches mythical proportions is widely acknowledged, and even applauded, because it allows the authorities to act on behalf of a public that may not share the authorities' view of what is best: "Even if this idea of law above and beyond all politics is a myth, it is still a valuable way to appeal to people's inner voices, to motives higher than their crude self-interest" (Friedman, 1984, p. 275). "In a very real sense," Craig Haney (1991) emphasized in his critique of Supreme Court decision making, "the 'consent of the governed' depends upon such fictions" (p. 185). Countering these myths and fictions is not easy, as "once people believe in a myth, their skeptical sense vanishes, they accept it as fact, and--most importantly--the invented reality becomes reality itself, the only reality" (Nimmo & Combs, 1990, p. 18).

Inaccurate assumptions about human nature enhance the public's acceptance of the system's legitimacy. According to June 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 are widely shared, with good reason. The belief that people behave justly and responsibly only because the law requires it--that we cannot be good unless we are forced to be good (Lerner, 1982)--lowers our expectations for our own actions as well as for the actions of others.

Contested Terrain

Given the centrality of the fiction that law is objective, neutral, and consensual, members of the public are often troubled when judges disagree among themselves about how to interpret the law. In a complex society, it is comforting to rely on experts who have learned through specialized training what the law really is. When the experts cannot agree, the public's faith in legal and political authorities can be shaken.

Disagreement among judges echoes long-standing debates among legal scholars. One attack on the conventional view after another has made it clear that law is not an exercise in pure reason but a battle among contesting forces (Kairys, 1990). Although it is tempting to claim that those who agree with us are correctly objective and those who disagree wrongly misguided, many critiques of law have gone well beyond the merely cynical. More challenging to law's official view of itself have been attacks on the central fiction of logical decision making.

In the first third of this century, legal realists in the United States openly acknowledged the subjective nature of legal decision making. Lawyers and social scientists demonstrated how different judges reached very different conclusions given the same set of facts. Some judges talked about how their own political views, class position, religious beliefs, and personality affected their decisions even when they sought to remain neutral and objective. Although today such expressions of subjectivity are commonplace and unremarkable (at least outside the courtroom), in the 1920s and 30s verbalizing the notion that judges make decisions just like the rest of us was shocking. Even more shocking, the legal realists did not call upon judges to be less subjective. They recognized that subjectivity was inevitable, that judges (like prosecutors and police officers) have sometimes boundless discretion. They wanted judges to acknowledge that fact rather than hide it.

And they went even further: The realists maintained that judges, aware of the subjective nature of decision making, should intentionally shape the law guided by a clear sense of ultimate goals. No longer should judges seek to reach some imagined correct decision regardless of the decision's effects. "There was no such thing as an objective legal methodology behind which judges could hide in order to evade responsibility for the social consequences of legal decision making. Every decision they made was a moral and political choice" (Mensch, 1990, p. 22, emphasis in original). Consciously choosing among conflicting values would be better than letting unacknowledged class and other influences shape the decisions. The law could be wrong, after all. It could be unjust and immoral. Applying legal logic to oppressive assumptions had made slavery and women's subjugation and intolerable working conditions legal. It made the European appropriation of Third World lands legal and later made the Holocaust legal. Today, it allows the continuation of a status quo that fails to seek, let alone guarantee, fundamental justice. If the law can be so immoral, suggested the realists, judges should openly abandon the pretense and use their discretion to improve society instead.

Today, feminist, Marxist, communitarian, libertarian, and other movements offer competing jurisprudential theories that question law's underlying assumptions and the legal system's underlying justifications. Radical perspectives, clashing with dominant conservative and liberal ones (Lesnick, 1991), clarify how law's reality departs from the myth. From a critical perspective, it becomes clear that the purpose of the "rule of law" is not to ensure justice but to establish a rules-based social control system based on technicalities, categories, and abstract principles. Those who have the power to establish the basic assumptions and principles have the power to direct law's practice. At the policy level, judges and lawyers have the power to tell us which options are legally available, thus deflecting calls for social change--a particularly crucial role for lawyers that Tocqueville (1831/1973) long ago identified (and admired) in the United States as a substitute for the rejected European aristocracy.

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False Consciousness About Law and Justice

It is not uncommon to hear the law professor's response to the new student who exclaims "That's not fair!" upon hearing the unjust application of one legal rule or another. The apocryphal professor takes the student outside and points to the name of the building: Clearly it is "School of Law," not "School of Justice." Law and justice are two different things, a message brought home to most law students fairly quickly even without the walk outside. The general public, though, has not assimilated this message, partly because it is not often talked about outside law school and the relatively invisible realm of legal scholarship. In public, lawyers and judges continue to talk about their role in obtaining justice, as if that is law's purpose. There is widespread awareness that the public might question the legitimacy of any legal system that doesn't consider justice primary. In theory, if a democratic public decides the system is unjust, it can vote in a new system.

To get around this conceptual and political problem, mainstream legal scholars and authorities prefer to focus not on hard-to-define substantive justice but on procedural justice. In this view, the "rule of law" assumes the procedurally correct application of general principles is best even when it brings unfair results in particular cases. As emphasized repeatedly in empirical psychological research especially by Tom Tyler (Tyler, 1990; Tyler & McGraw, 1986; Tyler & Mitchell, 1994; Tyler et al., 1997), the common belief that authorities use fair procedures enhances system legitimacy. Because people want to be treated fairly, "procedures can act as a cushion of support, allowing authorities to deliver unpopular decisions without losing support in the eyes of the public" (Tyler et al., 1997, p. 177). Procedural rules thus can help resolve conflicts that are inevitable not just between people with conflicting interests but even among people with similar goals and values. On the other hand, as the naive law student in the above example understands until law school corrects the unspoiled intuition, correct procedures are not enough. "The national obsession with process has allowed us to ignore dramatic inequalities in substantive outcome" (Haney, 1991, p. 194). By directing attention to procedures rather than to results, legal authorities deflect justice-based demands for social change.

This deflection is an example of false consciousness, a concept long dismissed by mainstream social scientists as too entrenched in Marxist doctrine for scientific comfort (Parenti, 1996). Interestingly, John Jost (1995) recently demonstrated that social and political psychologists have actually examined a wide variety of false-consciousness phenomena without using the terminology. Defining false consciousness 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" (1995, p. 400), Jost found "a considerable amount of evidence for the proposition that people will hold false beliefs which justify their own subordination" (p. 401).

False consciousness is relevant to popular beliefs about law in at least three different ways, characterized here as the minimalist focus on reforming dishonest procedures; the strong reformist recognition that honest procedures can mask unjust law; and the anarchist critique of the rule of law's conflict with individualized justice.

The Minimalist Focus on Dishonest Procedures

Most obviously, as well as most superficially, legally mandated procedures themselves may be a sham, providing no real input into the final decision. False consciousness exists to the extent that people expect to get a fair hearing when no such fairness is likely. For example, we may be allowed to defend ourselves before judges or government bureaucrats who merely give the appearance of paying attention to the evidence when in fact they have already made up their minds and are simply waiting for us to have our say and move on. "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).

The media focus our attention on cruder miscarriages of justice--judges who accept bribes, lawyers who lie, brutal cops who beat up suspects, bureaucrats who are pressured by superiors to reach predetermined results. But they tend to ignore the more routine procedural misdirection. The popular belief that the system can be improved by weeding out a few bad actors is itself a manifestation of false consciousness that fails to take into account structural constraints on individual action. It ensures that a disproportionate amount of reformist energy goes to endlessly cleaning up the system rather than to changing the system.

The Strong Reformist Concern: Honest Procedures Mask Unjust Law

The media pay little attention to a second aspect of false consciousness more significant than the first: the belief that honest, conscientiously applied procedural protections can bring just decisions is false when legal doctrine itself is unjust. It is relatively easy to identify dishonest and biased system players. It is harder to conceptualize an honest system that enforces biased legal principles. It is a problem when judges accept bribes to rule in favor of a landlord rather than a tenant; it is a more serious problem when an honest judge rules the same way because the law was written by legislators who themselves are landlords and interpreted by appellate judges who believe they are merely applying neutral principles about the sanctity of contracts and private property. Craig Haney pointed out that "Even if all our due process dreams came true in psychology and law, and this mythical justice machine ground away with perfect procedural precision and accuracy, much substantive injustice would still remain" (1993, p. 381). As emphasized by a variety of challengers to mainstream legal thought, the law would be very different if its basic doctrines had been written by workers and poor people, by women, and by people of color.

When technically fair procedures are built on substantively unfair legal principles, unfair results seem legitimate because the gaze is focused in the wrong direction. The role of power becomes invisible, reducing demands for justice and social change (Silbey, 1997) as procedurally correct hearings delay, but do not alter, the ultimately unjust final decision. The rare victory maintains the belief that "the system works," encouraging claimants to cling to unrealistic hopes and their lawyers to move on to the next client. Providing these procedurally correct hearings and appeals may be expensive (and thus must be fought for), but formal hearings and appointed lawyers are not nearly as expensive and disruptive as establishing a more just society.

At the same time, of course, defining and providing substantive justice is not a simple task, as recognized by psychologists who have considered distributive and retributive justice (Tyler et al., 1997). Clearly there is no consensus. Culturally-derived definitions of justice vary over space, culture, and time as well as by political perspective. In the context of psychology and law in particular, it is not clear which "independent definitions [of justice] . . . might 'make sense' from a psychological perspective" (Haney, 1993, p. 379). Yet a task for political psychology in particular is to assess the relationship between different political systems and different conceptions of justice. Surely we can say that oppression, inequality, and racism, for example, cannot be part of any system seeking to attain social justice (Prilleltensky & Fox, 1997). In this regard, Tyler's own early belief that "people's views about procedural justice are dysfunctional" (Tyler & McGraw, 1986, p. 126) and "nonrational" (p. 123) had more reformist potential than his more recent rejection of efforts by psychologists to determine which principles of distribution are just on the grounds that this is "not a psychological question" (Tyler et al., 1997, p. 58).

We should be able to agree that psychologists might usefully critique the negative consequences of capitalism. As many psychologists have noted, capitalist theory is steeped in psychological assumptions about an essentially selfish human nature (Wachtel, 1983). Central to modern Western legal systems, and a central target of any effort to create social justice, is the role of the law in endorsing and protecting capitalism and class inequality. Yet psychologists of law generally ignore assumptions about the centrality of the profit motive, the relevance of economic growth to individual well-being, and the virtues of resource distribution according to social psychology's equity norm rather than by competing principles of equality and need (Fox, 1993a, 1996). There is little effort by psychologists to identify the false consciousness that helps prop up capitalism despite the huge literature on this topic in other fields.

An important example is seen in recent efforts to examine modern capitalism's expanding centerpiece, the business corporation. Researchers increasingly examine how executives and managers make decisions and how workers carry them out. They propose methods to reduce risky and harmful decisions and enhance corporate responsibility and ethics. These approaches fall squarely within the liberal reform tradition of trying to reduce capitalism's more blatant negative consequences by trying to make capitalism more fair. Unfortunately, as with efforts by industrial-organizational psychologists to maintain managerial control over workers (Prilleltensky, 1994), these efforts do nothing to challenge corporate dominance (Fox, 1996).

The law, in other words, has created institutions that now dominate the world economy and increasingly dominate and homogenize the world's cultures (Bonsignore, 1994; Silbey, 1997). It has done so over the past century and a half, as judges and legislators reversed earlier legal principles that restricted the scope, size, and function of corporate institutions. The public today believes that "business has rights, too," apparently accepting the law's adoption of a bizarre "group mind" theory as the basis of a legal doctrine that treats immense business organizations as if they were living individuals. Yet rather than pointing out the obvious dangers and the psychological absurdity of treating conglomerates as if they were individuals, psychologists mostly look the other way (Fox, 1996). This redirection adds to the unequally distributed negative consequences of corporate expansion around the globe that is "facilitated, organized, and protected through increasingly standard legal forms and processes" (Silbey, 1997, p. 223). Liberal reformers seeking to reduce capitalism's negative consequences without damaging its essence routinely seek procedural regulation rather than altered outcomes (Lesnick, 1991).

The Anarchist Critique of a System for Law, Not for People

A third form of false consciousness about law is harder to grasp than the false confidence in crooked judges and elite-dominated legal doctrine. Even with good judges, and even in the unlikely event that some future legal system is based on substantively just principles established by democratic participation, there remains the problem that the nature of law itself precludes humane, individualized decisions. As noted above, ideal law is based on the logical derivation and procedurally correct application of legal principles, devoid of subjectivity and emotion. What counts in legal decision making are discrete provable facts relevant to accepted abstract principles. General rules and principles designed for categories of people are applied to particular individuals regardless of individual circumstances. Simply put, law bureaucratizes relationships. This bureaucratization is actually portrayed as one of law's strong points, distinguishing it from more "primitive" systems where individuals allegedly suffer routinely at the whim of despotic or inconsistent rulers. The common boast that we live under "a system of law, not of people" misrepresents a historical and anthropological record that makes it clear that so-called "primitive" 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). Although the results of the rule of law are often justifiable, they inevitably cause unjust hardship in many specific cases. Under the strict rule of law, however, these unjust results are merely part of the price we pay for having a system of law whose supposed benefits outweigh any occasional drawbacks.

As I have noted elsewhere (Fox, 1993a), in contrast to law stand principles of equity, which exist in one form or another on the fringes of most legal systems. Decisions based on equity reject the legally required outcome when doing so is necessary to reach a fair outcome in a specific case. Equity has been a part of law since the earliest legal systems, and appears to be "founded on a sense of justice which is innate in human nature, however diverse may be the explanation of its presence" (Newman, 1965, p. 410). Menkel-Meadow (1985) identified equity with a female relationship-based response to harsher male-dominated law, paralleling Gilligan's (1982) distinction between traditionally male and female modes of moral judgment and Bakan's (1966) distinction between agency and communion. Of course, unlike the rule of law, real people take individual circumstances into account, leading to both positive and negative results shaped by structural constraints on the discretionary use of power as well as on other discoverable, and often politically manipulable, factors.

Equity-based notions are especially compatible with modern anarchist thought, which generally views the development of state legal systems not as an extension and improvement over harsh primitive custom but as the forced imposition of centralized control over societies with long-standing local norms (Diamond, 1974). Anarchists emphasize that even if modern legal systems provide certain benefits to portions of the population, dependence on state enforced solutions brings a host of negative outcomes as well. Community psychologist Seymour Sarason (1976) called attention to the central anarchist insight that state power should be viewed suspiciously because the centralized state inhibits both individual autonomy and a psychological sense of community. From an anarchist perspective, legal institutions may bring short-term gains, but only at the expense of a greater dependency on legal authorities that causes people to lose their ability to work together to resolve conflicts. "When law is fully in command, morality itself loses relevance. Right and wrong become a specialty of professionals such as lawyers, police, and judges. Justice becomes an industry" (Black, 1989, p. 85). Psychologists have many reasons to take anarchist theory seriously (Chomsky, 1973; Ehrlich, 1996; Fox, 1985, 1986, 1993a, 1993c; Fromm, 1955; Goodman, 1966/1979; Maslow, 1971; Sarason, 1976).

Unlike the popular image of anarchists as bomb-throwing terrorists, anarchism does not reject social order and most anarchists do not advocate violence. Anarchists have created alternative forms of societal organization, frequently based on decentralized, autonomous, voluntary communities (Ehrlich, 1996; Taylor, 1982, 1984). Even when conceding that effective communities might sometimes require some form of peer compulsion (as occurs in non-law societies), anarchists insist that a just society requires neither formal law nor the centralized state (Fox, 1985, 1993a; Holterman & van Meerseveen, 1984). Any anarchist-approved system would have to incorporate principles such as voluntariness, cooperative consensus-driven decision making, equality rather than hierarchy, and decentralization (van Maarseveen, 1984).

The tendency of law to drive out equity makes even a procedurally just legal system suspect, just as the belief that unfair results must stand because "that's the law" is a manifestation of false consciousness. As might be expected, judges typically construe equity principles narrowly or ignore them entirely (Fox, 1993a). Appeals to discretion to individualize justice are often dismissed on the grounds that bypassing the rule of law leads to anarchy.


Psychology's support of system legitimacy may not be as significant as that of institutions with more societal power, but it is a concern nonetheless. Paralleling other critiques of mainstream psychology offered by critical psychologists (Fox & Prilleltensky, 1997), Jost (1995) called for "politicizing" psychology by addressing

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. (p. 413).

Psychologists seeking to assess the presence and consequences of false consciousness in law could usefully begin with Jost's (1995) delineation of distinct categories of false consciousness, each examined (usually in depoliticized fashion) by mainstream psychologists. Categories 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 cognitive conservatism and behavioral conservatism). These categories offer a starting point for understanding the inculcation and acceptance of false beliefs about law.

Useful, too, is Tod Sloan's (1997) discussion of how personality theories "could play a very important role in the process of social transformation and human betterment, in particular by showing how personal concerns and social injustice are intertwined" (p. 97). Sloan pointed out 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).

What is there about law that such an ongoing process of reflection might encounter? As one example, the law frequently uses the fictional reasonable person as a standard for behavior the law expects. As psychologists of law have frequently pointed out, the law's view of what behavior is reasonable often conflicts with the behavior and beliefs of real human beings (Horowitz and Willging, 1984). In the context of economics and power relations, the law's fictitious reasonable person is purely rational: a self-oriented, asocial individual motivated not at all by concern for others and unusually aware of the law's logic and assumptions. It is not surprising that the law's warped view of human nature leads to legal support for an equally warped capitalist economic system. It would not be surprising to find as well that real human beings recoil from the legal fiction that purports to serve as a behavioral ideal.

Similarly, the belief that social problems are too complicated to resolve in other than piecemeal fashion leads to a lack of support for comprehensive social change. Dominant cultural assumptions fail to take into account the intertwined nature of seemingly different problems. Unfortunately, focusing only on narrow, "manageable" problems, often at the individual level, can cause the resolution of one policy issue to actually complicate others (Fox, 1991). Thus, even when mainstream proposals for legal and policy reform do sometimes succeed, they often bring unpredicted and unintended side effects because so many seemingly separate social problems are actually related. They also fail to achieve system-wide change because they aim too low.

Yet is the public potentially amenable to more fundamental change than is commonly thought? Psychologists might consider the possibility that widespread discontent with the current system is not so much nonexistent as it is hidden: perhaps the discontented adopt cynical silence or sullen grumbling because they fail to perceive that their discontent is widely shared. Is this the case? Is there more support for fundamental social change than the dominant culture assumes, demonstrating the existence of pluralistic ignorance (Jost, 1995)? Would the public oppose fundamental change if it thought that such change was indeed possible? These are the sorts of questions that political psychologists too rarely address (Montero, 1997).

Mainstream psychologists and other social scientists often reject the term false consciousness because it is associated with Marxism and other radical political perspectives (Jost, 1995; Parenti, 1996). Yet it is radical theory's insistence on system-wide change that holds the most promise for solutions that do more than merely skim the surface. Psychologists who confront the centrality of legitimacy in propping up support for the political, legal, and economic system must abandon mainstream assumptions if they are to expose the sources of power and enhance social justice. Because the system creates people "whose minds work to preserve the status quo at all costs" (Jost & Banaji, 1994, p. 15), it is time to "challenge the common sense through which we interpret the world" (Montero, 1997, p. 243).

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