The Politics of Rights : Lawyers, Public Policy, and Political Change

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Summary: legal realists
Review: When legal realists, such as Stuart Scheingold, debunk the "myth of rights," they do so under the fundamentally mistaken assumption that, when evaluating the law, there are only two possible judgments to arrive at. As a case in point, many of their common arguments (for example, the "Constitution means what nine judges say it means") assume that the law is either perfectly objective or entirely political. It has been said that "he who frames the question wins the argument," and it could be added that he who provides extreme "alternatives" such as those impels certain choices. Thus, extravagant assertions such as "law is reason, justice, and stability" almost beg for the contrary response. Only by phrasing their argument in this particularly tricky way, are the legal realists able to make their point. In this essay, I shall attempt to critique the strategy of such arguments and propose an alternative way to view the concept of legal rights. Concerning the ! "myth of rights," Scheingold writes that "the ideological existence of the law takes shape and is a reflection of and a reaction to the law's more palpable presence" (Scheingold, 1974, 203). In this regard, he is at least partially correct, but I would take issue with the way that he, and other legal realists, characterize the word "myth." In particular, the fact that a majority of American operate under it is admitted, but only in support of their argument. They essentially argue that since having such a myth drives Americans to seek nonrealistic legal assistance, we would all be better off if we were aware of "the truth." However, I will argue that a "sudden dose of the truth" is a rather extreme remedy for the problem. We Americans certainly do have a myth, but the effects of that myth are not altogether negative and thus a "myth adjustment" is all that is called for. A sociology professor's exam policy provides a good illustration for my argument. Professor Mauss ! provides his undergraduate students with a list of five pos! sible examination questions, three weeks before the actual test date. He promises that if a student prepares a typed response to all five questions (two weeks in advance), he will read and review them, providing useful criticisms and suggestions. While in his office, the thought crossed my mind that if all the students were to take him up on his promise, he would not be able to keep it. When asked about that, he replied that "in over twenty years of teaching, I've not had more than 10 ~ 15 students [per semester] take advantage of this offer." And although that possibility certainly existed, he preferred to leave the offer wide open to all his students. His reason: the simple existence of the offer made things "feel fair" and somehow produced a attitude of confidence in his grading system. In other words, the myth that "all students could receive his help" had certain psychological benefits, which were difficult for him to measure and quantify. In the same way, it is! profoundly difficult to quantify the psychological benefits of the "rights myth" -- legal realists thus seem to assume there are none. Allow me illustrate with one further example. Samuel Walker, in Sense and Nonsense about Crime, demonstrates from actual experiments, that adding more police will not reduce serious crime (Walker, 1989, 128). Thus, we might say that he has done us the great service of debunking the "police protection myth." But I would argue that he has been overly "scientific" in his work. Although added police presence may not necessarily reduce crime, it may well reduce the fear of crime, thereby creating a certain feeling that has a value, in and of itself. Yet just because the notion of fear is not externally "measurable," he neglects to consider it. Thus, by arguing that people are not actually "safer" with additional police, Walker inherently nullifies "safety" as a subjective feeling, worthy of consideration. In a similar way, the legal reali! sts fail to perceive the emotional value to be found in the! myth of rights. In fact, with the legal realists, the aversion towards "social feelings" goes beyond mere objectivity -- it can be seen as a refusal to break from an old tradition of dogmatism. As Marx asserts, "we shall not even take the trouble to enlighten our philosophers by explaining to them that liberation is a historical and not a mental act" (Marx, 1978, 169, emphasis added). For Marx, to subjectively "feel free" and to objectively "be free" were two entirely different things. Since the social structure supposedly determines a man's conscience, conscious meanings are unimportant for Marx. As Herbert Blumer observes, "If one declares that the given kinds of behavior are the results of particular factors regarded as producing them, there is no need to concern oneself with the meaning of things toward which humans act" (Blumer, 1969, 3). In fact, Marx and all his legal-realist offshoots have never really explained their own emancipation's from their "bourgeois! ie conditions of existence" and why their meanings are therefore "trustworthy." In particular, their conception of the law is seriously political; it has to do with judges, lawyers, courtrooms, law books, decision management, implementation procedures, and branch relations -- which does not even come close to the social essence of the law as it exists in the hearts and minds of the people. As Max Weber would argue, "to suggest that ideas [about the law] originate as a reflection of the economic situation, would not only be oversimplifying matters, it would be patent nonsense" (Weber, 1958, 75). In contrast to such a limited vision, I would argue that human beings will always act towards the law (and each towards each other) on the basis of the subjective meanings they hold for it. And since we Americans live in a "culture of the law" our everyday behaviors will be formed and shaped by the impressions we carry; likewise, (since legislators and judges are people to) the imp! ressions we have of the law will form and shape the law its! elf. As Tocqueville observed of the United States Supreme Court,

Its power is immense but it is a power springing from opinion. [It] is all powerful so long as the people consent to obey the law; [it] can do nothing when they scorn it. [But] of all powers, that of opinion is hardest to use, for it is impossible to say exactly where its limits come (Tocqueville, 1988, 150).