FRAMING EQUAL OPPORTUNITY Law and the Politics of School Finance Reform
By Michael Paris
Stanford University Press Copyright © 2010 Board of Trustees of the Leland Stanford Junior University
All right reserved. ISBN: 978-0-8047-6354-7
LEGAL MOBILIZATION THEORY AND LEGAL TRANSLATION: OLD TERRITORY AND NEW FRONTIERS
In the early 1970s, Stuart Scheingold set out to understand "the part that lawyers and litigation could play in altering the course of public policy" in favor of relatively disadvantaged groups. Gaining insight into this topic, he argued, depended on "abandon[ing] the conventional legal perspective and replac[ing] it with a political approach to law and change." He called the conventional perspective "the myth of rights," and the political perspective "the politics of rights."
Scheingold's effort marked an important break from mainstream political science work on law and courts. Whereas mainstream approaches placed judges and courts at the center of analysis, Scheingold focused on the mindset and strategic thinking of would-be change agents. And whereas mainstream work adopted what purported to be a normatively disinterested stance, Scheingold acknowledged his practical interests in social change and his desire for engagement with his research subjects. He wanted better to understand the dynamics of law, politics, and change because better understanding might foster more informed and effective action in the world.
The Politics of Rights thus staked out a new territory of inquiry. This territory has been for the most part populated by scholars "on the left" interested in the relationship between things legal and social movements or reform projects. In this chapter, I tell the story of the origins and development of legal mobilization approaches to the study of law and the politics of change. Like all stories, this one is highly selective and told with specific purposes in mind-three purposes, to be exact. The first purpose is to trace the trajectory of research from Scheingold's initial departure to current theorizing about law and change; the second is to sift out of this research tradition an account of three ideological orientations toward law, politics, and change; and the third is to address a few theoretical and methodological issues specific to my narrative case study approach and subject matter.
THE ORIGINS AND DEVELOPMENT OF LEGAL MOBILIZATION THEORY
Scheingold described and criticized a broad ideological view of law, politics, and change that he labeled "the myth of rights." What Scheingold called the myth of rights is what I will be calling "legalism." Scheingold's book explicated and sought to debunk legalism and to replace it with a "politics of rights" perspective, which, he argued, gave us a more accurate account of "how law and politics actually work." What Scheingold called the politics of rights is the view that I will be calling realism.
In his explication of the myth of rights, Scheingold relied on earlier work by political theorist Judith Shklar. Shklar had argued that legalism was an ideology that held that moral conduct was a matter of rule following. Legalists, she wrote, isolated law completely from its social contexts, treating it as "a single 'block' sealed off from general social history, from social theory, from politics and morality." Legalists believed "that law is not only separate from political life but a mode of social action superior to mere politics." They associated law with morality and high principle, and politics with mere self-interest and expediency.
Scheingold retained Shklar's view as part of what he meant by the myth of rights. However, his myth of rights was broader than Shklar's legalism. It included not only beliefs about morality and law, but also more specific beliefs about American constitutionalism, law and politics in the United States, American courts, and the causal dynamics of social change. "Ideologists" (or law professors) and "strategists" (or reform lawyers) of rights, as Scheingold called them, tended to see things legal as things apart from, and over and above, mere politics-as a morally superior "'block' sealed off," as Shklar put it.
Generally, the myth of rights began with reverence for the Constitution. On this view, the Constitution laid down timeless values to which wise judges could repair to restrain the erratic impulses of democracy. The long-noted American tendency to legalize conflicts, to turn political questions into judicial ones, made politics more coherent and rational. The myth of rights saw law as the realm of reason and courts as forums where reason could rule. Moreover, Scheingold argued, the myth of rights had tremendous cultural resonance in American politics and society. It provided a basic grammar for thinking about social organization and problem solving across a wide range of settings.
In the specific context of efforts to use law and courts to bring about social change, Scheingold described the myth of rights and its import as follows:
Legal frames of reference tunnel the vision of both activists and analysts leading to an oversimplified approach to a complex social process-an approach that grossly exaggerates the role that lawyers and litigation can play in a strategy for change. The assumption is that litigation can evoke a declaration of rights from courts; that it can, further, be used to assure the realization of these rights; and, finally, that realization is tantamount to meaningful change. The myth of rights is, in other words, premised on a direct linking of litigation, rights, and remedies with social change.
The myth of rights, then, was a distorted yet powerfully beguiling view of things legal and social change.
Why was the myth in fact myth? Scheingold gave four main reasons. First, the Constitution and laws embodied particular liberal values, such as individualism, faith in a market economy, and fear of state power. Causes posing challenges to these values would not easily be able to play the law game. Second, bench and bar were powerfully socialized to believe in the myth of rights. Even reform-oriented lawyers generally accepted the myth of rights as accurate description. They often distrusted democratic mobilization and protest, preferring instead to rely exclusively on litigation. Third, because the legal process was slow and costly, it could sap movements of energy and resources. Fourth, contrary to the myth, courts acting alone lacked the will, raw power, and/or technical capacity to produce the policy and social changes that reformers sought.
Therefore, Scheingold expressed "serious doubts about the capabilities of legal and constitutional processes for neutralizing power relationships." The "authoritative declaration of rights" was "usually only the beginning of a political process where power relationships loom rather large." However, even as his critique of the myth of rights implied pessimism about law and change, Scheingold's "politics of rights" perspective provided grounds for guarded optimism as well.
The politics of rights was "a term to describe the forms of political activity made possible by the presence of rights in American society." Turning to law and courts could help change agents legitimize grievances and catalyze organization among relatively powerless groups. The politics of rights would involve the instrumental use of rights claims and litigation to produce positive, indirect effects. If activists and lawyers became more aware of the limitations of legal strategies in isolation and the potential of the political approach, then things legal could be vital, if ancillary, weapons in struggles of change. This analysis "underscore[d] the crucial importance of thinking about legal tactics in combination with other modes of political action."
I want to note two central features of Scheingold's notion of the politics of rights. First, his implicit theory of social change held that certain forms of political action were more valuable and potent than other forms. This theory placed great faith in the transformative potential of democratic mobilization in political conflict. This is why, in his view, legal strategies are best conceptualized as ancillary weapons in broader, bottom-up struggles. Second, Scheingold's conception of law and politics was predominantly realistic. Its virtues notwithstanding, from our vantage point it is clear that one defect of realism is that it neglects the potential significance of legal arguments and legal doctrines. Thus, in The Politics of Rights, we find virtually no attention to the specific content of legal claims or judicial opinions. The notion that ideas in law might play a role in framing politics was outside Scheingold's realistic frame of reference.
Yet, there was a "culturalist" undercurrent in Scheingold's analysis. His essentially anthropological insights about cultural resonance and symbolic power of rights pointed toward a cultural analysis of law-toward the role that ideas in law might play in politics, and to the need to examine various actors' consciousness about law and politics.
Realism and Positivism/Culturalism and Interpretivism
The tension between legal realism and culturalism in Scheingold's analysis continued to mark research on the topic of law and social reform. Since the mid-1970s, these two conceptions of things legal and change have each been associated with two basic approaches to social inquiry and valid knowledge. Although there is no necessary relationship between these pairs, there is a strong affinity between realist conceptions of law and social-scientific positivism, on one hand, and culturalism and social-scientific interpretivism, on the other.
Positivism is an epistemological theory about how to obtain valid knowledge about the world, including the social world. Looking to the natural sciences for models, positivists "seek to explain social behavior through the formulation of causal laws ... which allow reliable, probabilistic prediction."
Realist analyses of law and policy change generally proceed through two steps. First, the realist observer provides an account of the legalistic story-the official version that sees law as a set of rules and commands that are to be obeyed simply because they are law. Second, the observer notes and investigates the frequent "gaps" between the official version and what really happened and why.
On the topic of social reform litigation specifically, realist inquiry has examined both the determinants of rule change and the political logic of implementation and impact. On these views, legal reformers use litigation, either alone or in conjunction with other strategies, to seek favorable court decisions and policy change. Courts may then direct others to enact new policies or change their behaviors. Others then change their behaviors, or they do not. These inquiries seek to give us some purchase on the causal forces influencing outcomes at various points in the legal and political process. Law is seen as an instrumental tool, and the devil lives in the details of the gap. This conception of law lends itself to the specification of variables and the building of general models. Exposing the gap is what has long given realist scholarship its critical edge.
Leading examples of this affinity between legal realism and social-scientific positivism include Joel Handler's still-useful Social Movements and the Legal System (1978) and Gerald Rosenberg's widely debated and now classic The Hollow Hope (1991). Both works marry a hyperrealist conception of law to a positivistic outlook on social inquiry. Handler also asked whether litigation and court decisions produce social change. He then constructed a model of five variables about litigation and its contexts, with each one varying from unfavorable to favorable to change. He argued that in many situations one variable-"the bureaucratic contingency"-was both crucial and unfavorable. Rosenberg asked whether landmark Supreme Court decisions like Brown and Roe actually produced the changes for which many in the legal world give them full credit. After closely investigating hypothesized causal links between the decisions and measurable indicators of change, Rosenberg reached the general conclusion that courts alone had little power to produce either direct or indirect positive effects. The real causal forces driving change lay elsewhere.
These analyses are useful for puncturing the oversimplifications of legalism. For example, if reformers who turn to courts are unmindful of the wide gap that separates rule change and bureaucratic rationalities of action (Handler's bureaucratic contingency), then Handler's work teaches a valuable lesson. Or, more broadly, if reformers think that courts are powerful change agents, then Rosenberg's argument will certainly make them rethink that view.
However, these realistic, positivistic approaches miss a great deal of relevant complexity by reading law simply as rules and policy commands. The commitment to social-scientific positivism means that the researcher is unconcerned with agents' practical consciousness. Therefore, this work does not tell us much about why people turn to litigation in the first place and what they expect to get out of it. Nor can it enlighten us about the content of legal arguments and their role in constructing the ideological terrain of conflict and social meanings. Understanding these important dimensions of law and politics requires a different approach.
An alternative approach-one that is interpretivist rather than positivist in its approach to social inquiry and culturalist rather than realist in its conception of law-emerged over the course of the 1980s and 1990s. It received its fullest elaboration in Michael McCann's work.
Interpretivism is the view that the social sciences are distinct from the natural sciences because the social sciences "focus on thinking, interpreting, meaningfully oriented subjects, subjects who construct the world through shared meanings, in contrast to the insensate objects of the natural sciences." Interpretive accounts of social phenomena often proceed "in consideration of the understandings of the participants involved." As such, they involve interpretations of interpretations, as Geertz put it. Interpretivists generally agree that social action and events are shot through with complexity and indeterminacy. They argue that "thicker," more nuanced interpretive accounts may teach us things that we cannot learn from positivist approaches and models. Over the past thirty years, there has been a general "interpretive turn" in inquiry across the social sciences. Interpretive legal mobilization theory reflects this broader trend.
Interpretive legal mobilization approaches drew on several strands of theory and research in the 1980s and 1990s. The critical legal studies movement in the legal academy focused new attention on law and legal discourses as potentially powerful (constitutive) sources of ideology and social meaning. The CLS critique of rights, in particular, gave rise to debates over the nature of rights and rights discourse, especially with respect to the claims and projects of subordinated groups. Around the same time, in law and society research, a focus on "disputes" and social processes of "naming, blaming, and claiming" pointed toward the cultural significance of legal language. In political science in the 1980s, several scholars built a bridge between realist and culturalist conceptions of law and social reform. Finally, in sociology, research on social movements turned from the rationalistic "resource mobilization approach" to a cognitive and political process approach centrally concerned with issue framing and symbolic dimensions of movement activity.
In Rights at Work (1994), McCann drew on all of these trends in developing a general legal mobilization framework. First, McCann begins by endorsing a "standpoint shift," from law and courts to would-be change agents who mobilize the law. As a research strategy, the observer seeks to occupy the point of view of a specified set of individual and group actors. The goal is to understand meaning and action from the vantage point of these actors, given their history, experiences, goals, and sense of their environment. Second, McCann embraced and further developed the culturalist conception of law, which he referred to as "law as social practice." This conception does not supplant realism but rather supplements and complicates it. Law is intertwined with politics, and things legal are nothing if not instrumental weapons. But things legal are not just that, for they embody and promote ideas and discourses that exist in complex relation with other cultural and political discourses.
Third, McCann's theory placed legal mobilization within broader social and political contexts. Of course, the interpretive observer's sense of "relevant contexts" is itself a matter of interpretation; potentially relevant contexts are almost limitless. McCann constructed the relevant contexts for legal mobilization in social movement efforts mainly by placing legal claims and activities within a broader, process-based account of social movement goals and actions. He examined how law and rights worked at distinct phases of social movement activity. In turn, he also constructed contexts for action by placing the social movements themselves within broader economic and political contexts.
McCann used this framework to study the role of legal mobilization in feminist/labor struggles for pay equity in the late 1970s and 1980s. He found that activists "derived substantial power from legal tactics despite only limited judicial support." Moreover, they were quite realistic about the potential utility and disutility of legal strategies. They understood and capitalized on litigation's "educating and mobilizing potential." From his culturalist perspective, then, McCann observed actors practicing a sophisticated, "politics of rights" approach.
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