The Antinomies of Poverty Law and a Theory of Dialogic Empowerment


Poverty in America is a tragedy of longstanding. Magnified by the cruel spread of hunger and homelessness, it is a tragedy gaining resonance in the daily lives of an increasing number of Americans. Recognizing this growing calamity, many poverty lawyers have redoubled their efforts. Others, given pause for reflection, have attempted to amplify traditionally unheard client voices. Still others have fallen silent, succumbing to resignation and abandoning the enterprise altogether.

I submit that the best of these responses are inadequate. While reflection, diversity, and heightened commitment are essential to combat poverty, without more these efforts are destined to fail. To prevail, even to progress, in the battle against poverty, lawyers must rethink their efforts. By rethinking, I do not mean simply a methodological inquiry concerning litigation tactics – individual versus class relief – and strategy – direct service versus law reform. That inquiry, though legitimate, patently illustrates the crisis in the definition of the subject of poverty law itself.

By definition, the subject of poverty law is the poor. It is the poor who experience the objective force of poverty and the deprivation of powerlessness. Yet, the poor are not empowered by the dominant traditions of poverty law, nor are they liberated from the desperate conditions of poverty. This historical quandary warrants a recasting of our conceptual and methodological understanding of poverty law. Recasting is an ideological project.

The crisis in poverty law therefore is at bottom ideological. It is a crisis of the legal imagination uprooted from history, an imagination blind to culture and society. Fundamentally, the crisis in poverty law lies in its politics. Bereft of social theory, it is a politics of historical entropy empowering neither individual transcendence nor collective solidarity.

By rethinking, therefore, I mean an ideological inquiry regarding the political object of poverty law and the strategic methods of achieving that goal. Ideological inquiry seeks to reveal the particular assumptions, expectations, and values concealed in dominant habits of perception and interpretation. Once these value-laden underpinnings are exposed, ideological inquiry seeks to ascertain the relation between dominant habits of mind and the maintenance and reproduction of dominant political and socio-economic power. At each stage of the inquiry, focus is placed on the nature of particular beliefs – covert and overt, conscious and unconscious – and their relation to particular formations of power.

The first purpose of this Article is to pursue an ideological inquiry with respect to the habits of perception and interpretation dominant in the practice of poverty law. As I hope to show, these habits reify and reproduce myths of legal efficacy, and inherent indigent isolation and passivity which sustain and reinforce relations of power oppressive to the poor. To explode those myths, I shall critique the dominant traditions of poverty law: direct service and law reform litigation. My thesis is that poverty cannot – indeed should not – be remedied by these traditions. Remedial litigation 12 should not be mounted, even where altruistic 13 relief is possible, without the activization of class consciousness among the poor, nor without the political organization and mobilization of the poor.

Implicit in this thesis is the view that the poor are historical actors waging a day-to-day class struggle to assert control over their lives and communities. The battle against poverty and oppressive welfare systems is their common historical struggle. By relying on direct service and law reform litigation, poverty lawyers negate the poor as an historical class engaged in political struggle, thereby decontextualizing, atomizing, and depoliticizing that struggle. Moreover, by reifying the dissociated category of ingrained indigent isolation and passivity, poverty lawyers reproduce isolation and passivity in the attorney/client relationship, thus inhibiting the potential for political struggle. Because these contradictions plague the practice of poverty law, the best hope for combating poverty lies not with lawyers, but with the poor themselves. It follows that empowering the poor should be the political object of poverty law.

Having established the goal of poverty law, I shall turn to my second purpose and endeavor to demonstrate that poverty can be soundly attacked only by applying an integrated theory of empowerment combining the elements of critical consciousness and discourse, the strategic methods of direct service and law reform litigation, and the collective force of clients acting together in local, state, and national political alliances. To begin the hard practice of theory, I counsel poverty lawyers to apply critical consciousness, engage in dialogue, and redirect their efforts towards client empowerment, i.e., the activization of liberating class consciousness and the organization and mobilization of grass roots client alliances in local, state, and national communities. My hope is that client and community empowerment may serve as a strategic weapon in the continuing war against poverty.

Suggested Reading

Luke Herrine∞ Abstract This article argues that, despite being the least discriminatory form of underwriting in history, consumer credit reporting can reinforce and deepen systemic inequalities. Credit reports can create two sorts of vicious cycles, which can contribute to cycles