Where's the Proof
that Law is a Good Thing?

Dennis R. Fox

1993

Law and Human Behavior, 17, 257-258

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While working on Psychological Jurisprudence and Radical Social Change, Gary Melton delivered a talk titled "The Law is a Good Thing (Psychology is, too): Human Rights in Psychological Jurisprudence." It wasn't that hard to distill my longer papers's argument into a five-paragraph comment to submit when Gary's article finally appeared in print.

Gary directed the Law/Psychology Program at the University of Nebraska, where I did my post-doc. He has a sense of humor. In his response to my comment -- titled simply "Anarchy Ain't so Great"-- he found some ground to say something positive about my comment even though he made it clear that "Fox's premise strikes me as plainly in error." He had the last word, so I couldn't rebut his depiction of my "nostalgic yearning." So it goes.

I talk more about the Meltonian approach to psychological jurisprudence in my 1997 chapter Psychology and Law: Justice Diverted. It's a lot better than some of the alternatives.

Note: This version may not exactly match the published version!

Article

Gary Melton (1992) cannot be faulted for the humane direction in which he would like to push the law. He goes too far, however, when he asserts that "the most fundamental assumption in psychological jurisprudence, implicit in psycholegal scholars' continuing work to help the law to do its job better, is that law is intended to promote human welfare--or, . . . 'The Law Is a Good Thing'" (p. 383). Although he acknowledges that his assumption is "both normative and empirical" (p. 383), Melton provides little empirical support for the view that law is inherently good. Perhaps a legal system created by Melton and other adherents of psychological jurisprudence would indeed be a good thing. Law as it has existed historically, however, has rarely reached the lofty heights Melton envisions.

Melton rejects the critical legal studies perspective that "the law primarily serves the interests of the privileged and powerful" (p. 384). He insists instead that "law truly is a good thing that confirms the worth of humanity--that indeed gives official recognition to each citizen's unique personality--and that promotes a sense of community" (p. 384). Melton does acknowledge that "even when legal authorities have had benevolent intent, they sometimes have failed to appreciate the meaning of taking people seriously" (p. 387), but still he concludes "it is likely that courts in societies governed by the rule of law gradually move in a direction consistent with respect for human dignity" (p. 387).

Psycholegal scholars should examine more closely the degree to which law in fact has matched Melton's hopeful description. Has the invention of law over the past few thousand years really been an improvement over the much longer human experience in non-law societies? Do the historical and anthropological records provide evidence for Melton's benign view, or is it the critical legal studies perspective that better describes historical reality? Are the supposed benefits of law really part of all law, or do they stem only from law as defined and preferred by liberal humanists?

There is in fact empirical evidence that the grim Hobbesian view of life in pre-law stateless societies is incorrect. "Clearly, the anthropological record does not suport Hobbes in any way. Stateless societies seem less violent and brutish than those with the state" (Barclay, 1982, p. 28; see also the empirical investigation by Orbell & Rutherford, 1973). Although it is common to view law as an extension and improvement over harsh "primitive" custom, the development of state legal systems may alternatively be interpreted as the forced imposition of centralized control over societies with long-standing local norms (Diamond, 1974). And even if modern legal systems provide certain benefits to large portions of the population, dependence on state-enforced solutions brings a host of negative outcomes as well, often related to the inhibition of individual autonomy and psychological sense of community (Sarason, 1976; see also Fox, 1985, 1993-a, 1993-b).

An unquestioned belief that law is a good thing can deflect our attention from abundant evidence to the contrary and lead us down avenues that turn out to be blind alleys. Psycholegal work that helps law "work better" by making it more efficient or by enhancing its perceived legitimacy may backfire if in fact law's dominant tendency is oppressive rather than liberating (Fox,1993-b). Melton recognizes this danger, but underemphasizes it. Before the presumed benevolence of law is enshrined as psychological dogma, we should carefully reexamine this fundamental assumption.

References

Barclay, H. (1982). People without government: An anthropology of anarchism. London: Kahn & Averill.

Diamond, S. (1974). In search of the primitive. New Brunswick, NJ: Transaction Books.

Fox, D. R. (1985). Psychology, ideology, utopia, and the commons. American Psychologist, 40, 48-58.

Fox, D. R. (1993-a). The autonomy-community balance and the equity-law distinction. Behavioral Sciences and the Law.

Fox, D. R. (1993-b). Psychological jurisprudence and radical social change. American Psychologist.

Melton, G. B. (1992). The law is a good thing (Psychology is, too): Human rights in psychological jurisprudence. Law and Human Behavior, 16, 381-398.

Orbell, J. M., & Rutherford, B. (1973). Can Leviathan make the life of man less solitary, poor, nasty, brutish, and short? British Journal of Political Science, 3, 383-407.

Sarason, S.B. (1976). Community psychology and the anarchist insight. American Journal of Community Psychology, 4, 243-261.