Most lawyers on the left have a pessimistic view of their own political role in bringing about fundamental social change. Some think that the law is simply a tool used by the ruling class to protect its own economic interests, a view which by definition means that no important gains can be won in the legal arena. Those who believe this tend to relegate themselves to the role of protecting oppressed people against the worst abuses of an unjust system while awaiting the development of a revolutionary movement “at the base.” Others graduate from law school believing that meaningful reforms can be won through legislative and judicial action, and often devote several years of hard work for little pay to the goal of getting people more rights. But they then discover that the expansion of legal rights has only a limited impact on people’s real lives, and that even these limited gains can be wiped out by a change in the political climate. The consequence is that by their mid-thirties many lawyers have either lost their early idealism or have had their original cynicism confirmed. And even the most committed find themselves at a loss as to how to integrate their politics with their everyday work as lawyers.
In this Article we present a more optimistic approach to radical law practice that is based on a view of the legal system different from those described above. We reject both the orthodox Marxist view that the law is simply a “tool of the ruling class”‘ and the liberal-legalist view that power less groups in society can gradually improve their position by getting more rights. Instead we argue that the legal system is an important public arena through which the State attempts-through manipulation of symbols, images, and ideas to legitimize a social order that most people find alienating and inhumane. Our objective is to show the way that the legal system works at many different levels to shape popular consciousness toward accepting the political legitimacy of the status quo, and to outline the ways that lawyers can effectively resist these efforts in building a movement for fundamental social change. Our basic claim is that the very public and political character of the legal arena gives lawyers, acting together with clients and fellow legal workers, an important opportunity to reshape the way that people understand the existing social order and their place within it.
Our perspective on the nature of the legal system has been strongly influenced by the work of the Conference on Critical Legal Studies, which over the last five years has been developing a new critical analysis of the role of law and legal institutions in maintaining the status quo. The actual legal strategies that we propose, however, have emerged principally from the efforts of practitioners within the National Lawyers Guild who have struggled to discover new forms of legal practice that would go beyond a purely defensive or reformist stance. This Article is a first attempt to link the theoretical advances made by the Conference with the accumulated practical experience of creative Guild attorneys, and in so doing to outline a new theory of practice that can be of value to lawyers who often lack the time or opportunity to situate their work within a broad political context.
The work of the Critical Legal Studies Conference is closely allied with the neo-Marxist social theory that has gained increasing influence in the United States and Western Europe since the rise of the New Left in the 1960’s. A central feature of this strand of radical thought has been a shift of focus away from the tendency of classical Marxism to explain all aspects of social life as resulting from “underlying” economic factors, such as ownership and control of the means of production. While not disregarding the importance of economic factors, neo-Marxist theory places much greater emphasis on the role of social alienation in shaping the contours of social life and argues for a theory of politics that makes the overcoming of alienation a central political objective. s The source of alienation in capitalist societies (although by no means only capitalist societies)0 is to be found in the prevalence of hierarchy as the dominant form of social organization. The nature of this alienation is best described as the inability of people to achieve the genuine power and freedom that can only come from the sustained experience of authentic and egalitarian social connection. The predominance of hierarchy in both public and private life leads to a profound loss of this sense of social connection because it breaks down any possibility of real community, and forces people into a life-long series of isolating roles and routines within which they are unable to fully recognize one another in an empowering and mutually confirming way. Instead, people come to experience one another as powerless and passive in relation to the hierarchies within which they live and work, and, because this collective powerlessness is manifested throughout the social order, individuals internalize this powerlessness in the formation of themselves. Alienation and powerlessness therefore become a self-generating source of social repression that leads to the reproduction of class, race and sex hierarchies from generation to generation.
The principal role of the legal system within these societies is to create a political culture that can persuade people to accept both the legitimacy and the apparent inevitability of the existing hierarchical arrangement. The need for this legitimation arises because people will not accede to the subjugation of their souls through the deployment of force alone. They must be persuaded, even if it is only a “pseudo-persuasion,” that the existing order is both just and fair, and that they themselves desire it. In particular, there must be a way of managing the intense interpersonal and intrapsychic conflict that a social order founded upon alienation and collective powerlessness repeatedly produces. “Democratic consent” to an inhumane social order can be fashioned only by finding ways to keep people in a state of passive compliance with the status quo, and this requires both the pacification of conflict and the provision of fantasy images of community that can compensate for the lack of real community that people experience in their everyday lives.
The legal system accomplishes this legitimation in two main ways. First, all forms of serious social conflict are channeled into public settings that are heavily laden with ritual and authoritarian symbolism. Each discrete conflict is treated as an isolated “case”; the participants are brought before a judge in a black robe who sits elevated from the rest, near a flag to which everyone in the room has pledged allegiance each day as a child; the architecture of the courtroom is awesome in its severity and in its evocation of historical tradition; the language spoken is highly technical and intelligible only to the select few who have been “admitted to the Bar.” This spectacle of symbols is both frightening and perversely exciting. It signifies to people that those in power deserve to be there by virtue of their very majesty and vast learning. When disseminated throughout the culture (through, for example, the schools and the media), these symbols help to generate a belief not only in the authority of the law, but in authority in general. They lead people simultaneously to feel that they are legitimately “underneath” those who occupy the positions of power, and to admire and identify with these figures in their fantasy lives. Taken as a whole, this display of legal symbolism lays the deep psychological foundation for a political culture that substitutes identification with authority for real democratic participation and that substitutes fantasies of patriotic community for an actual community founded upon love and mutual respect.
Supporting this tableau of authoritarian symbols is legal reasoning itself, an ideological form of thought whose distinctive legitimizing characteristic is that it presupposes both the existence of and the legitimacy of existing hierarchical institutions. In a genuinely humane social order, the law would express provisional forms of moral consensus about all aspects of social life, arrived at through a genuinely participatory process. In our current system, such discussion is foreclosed by virtue of the abstract or removed character of the political process. Instead, the legality of hierarchy is frozen in ahistorical rules which assume that the social relations expressed through the existing institutions of property, contract, and the modern corporation are extensions of human freedom. Thus landlord-tenant law allows one to argue for increasing tenants’ rights, but not to challenge the very existence of landlords and tenants because it has already been decided (by “founding fathers”) that freedom requires the protection of private property in its current form. Labor law allows workers to unionize in order to improve their bargaining power relative to owners of capital, but not to challenge the division of people into laborers and capital-owners that generates antagonistic social relations based upon bargaining power. Blacks can demand legal equality with whites, but they cannot demand the elimination of the societal conditions that produce institutional racism.
In other words, the conservative power of legal thought is not to be found in legal outcomes which resolve conflicts in favor of dominant groups, but in the reification of the very categories through which the nature of social conflict is defined. Since these categories are themselves justified by the utopian imagery of political democracy, the legal system can assert that the era of freedom and equality has already arrived, and that the status quo is the consequence of genuine popular choice. It is through the association of this legitimizing political imagery with the spectacle of authoritarian ritual that the legal system acquires its mass-psychological power. Like religion in previous historical periods, the law becomes an object of belief which shapes popular consciousness toward a passive acquiescence or obedience to the status quo.
And yet precisely because the hierarchies of the legal system are sustained only by people’s belief in them, legal conflicts of every type can become opportunities to crack the facade of legitimacy that these hierarchies project. The State’s strategy of legitimation dictates a counter-strategy of delegitimation, or what Gramsci called “counter-hegemonic struggle. The idea here is to find a way of working in the legal arena that consistently challenges the State’s control over the way that we are to both feel and think about the nature of social reality. The remainder of this Article is directed toward developing such a strategy.
First, we discuss the difference between a rights-oriented and a power-oriented approach to law practice and argue that the latter approach is essential to a delegitimation strategy. Second, we attempt to show what a power-oriented approach to law practice might look like. We do so primarily through the use of actual case histories which reveal the possibilities of exerting “counter-pressure” against the system in cases with high visibility political content (major political trials or nationally significant Supreme Court cases), low-visibility political content (an important criminal trial in a local community), and cases with only implicit political content (a divorce or landlord-tenant case). Our basic aim is to present an approach to law practice that can overcome the split most radical lawyers currently feel between their politics and their legal work, and to give concrete examples of such an approach in a variety of legal settings.
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