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

Scheingold, Stuart A.

Softcover

ISBN 10: 0472030051 ISBN 13: 9780472030057

Publisher: University of Michigan Press, 2004

Synopsis

Stuart A. Scheingold's landmark work introduced a new understanding of the contribution of rights to progressive social movements, and thirty years later it still stands as a pioneering and provocative work, bridging political science and sociolegal studies. In the preface to this new edition, the author provides a cogent analysis of the burgeoning scholarship that has been built on the foundations laid in his original volume. A new foreword from Malcolm Feeley of Berkeley's Boalt Hall School of Law traces the intellectual roots of The Politics of Rights to the classic texts of social theory and sociolegal studies. "Scheingold presents a clear, thoughtful discussion of the ways in which rights can both empower and constrain those seeking change in American society. While much of the writing on rights is abstract and obscure, The Politics of Rights stands out as an accessible and engaging discussion." -Gerald N. Rosenberg, University of Chicago "This book has already exerted an enormous influence on two generations of scholars. It has had an enormous influence on political scientists, sociologists, and anthropologists, as well as historians and legal scholars. With this new edition, this influence is likely to continue for still more generations. The Politics of Rights has, I believe, become an American classic." -Malcolm Feeley, Boalt Hall School of Law, University of California, Berkeley, from the foreword Stuart A. Scheingold is Professor Emeritus of Political Science at the University of Washington.

About this title

About the Author

Stuart A. Scheingold is Professor Emeritus of Political Science at the University of Washington.

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THE POLITICS OF RIGHTS

Lawyers, Public Policy, and Political ChangeBy STUART A. SCHEINGOLD

THE UNIVERSITY OF MICHIGAN PRESS

Copyright © 2004University of Michigan
All right reserved.
ISBN: 978-0-472-03005-7

Contents

Foreword.............................................................................................xiPreface to the Second Edition........................................................................xviiPreface to the First Edition.........................................................................xlix1. Legal Rights and Political Action.................................................................32. Law as Ideology: An Introduction to the Myth of Rights............................................133. An Ideologist's Eye View of the Myth of Rights....................................................234. The Call of the Law: The Myth of Rights as Political Rhetoric.....................................395. The Political Resonance of the Myth of Rights.....................................................626. Rights as Resources...............................................................................837. Constitutional Values and Political Goals.........................................................978. The Implementation of Public Policy...............................................................1179. Legal Rights and Political Mobilization...........................................................13110. Legal Education and Professional Socialization: The Myth of Rights Revisited.....................15111. The Activist Bar: Programs and Prospects.........................................................17012. The Political Relevance of Legal Rights..........................................................203Index................................................................................................221

Chapter One

LEGAL RIGHTS AND POLITICAL ACTION

This is a book about the law. The law is real, but it is also a figment of our imaginations. Like all fundamental social institutions it casts a shadow of popular belief that may ultimately be more significant, albeit more difficult to comprehend, than the authorities, rules, and penalties that we ordinarily associate with law. What we believe reflects our values; it also colors our perceptions. What we believe about the law is related directly to the legitimacy of our political institutions.

Traditional views about the law in America see it as beneficent and tend to reinforce legitimacy and stabilize the polity. Surely these views have, at least until quite recently, dominated the literature on law and politics in the United States. But now a radical interpretation which equates law with repression has begun to gain support. Thus, myth and countermyth compete for our attention and acceptance.

The purpose of this study is not necessarily to choose between these competing visions, each of which seems to be flawed in significant ways. If, however, we can understand how the law lends itself to such dramatically contrasting interpretations, a more satisfactory appraisal of the relationship between law and change in America will surely be possible.

The specific aim of this book is to assess the part that lawyers and litigation can play in altering the course of public policy. While this problem has been considered in a number of previous studies, each of them has provided only a partial glimpse of the process. Their tendency has been to concentrate on a particular institution—most frequently the Supreme Court—or a single policy problem like civil rights. There has also been a pronounced inclination to separate theory (or jurisprudence) from empirical analysis. The result has been a proliferation of data and theories but no efforts at general synthesis. At a time when serious questions are being raised about the role of law in the United States, a systematic look at the total picture is surely in order.

The most important distinguishing feature of this study is that it abandons the conventional legal perspective and replaces it with a political approach to the problem of law and change. In the United States we have long been accustomed to associating lawyers (albeit a small minority of the bar) with programs to alter the status quo. The lawyers' basic tool has been litigation, and it has been used doggedly and inventively on behalf of goals like school desegregation, free speech, and the rights of defendants. The successes and failures of these efforts to influence public policy have provided the raw material for studies of law and change in the United States, and analysts have, for the most part, accepted the actors' legal frame of reference.

The Myth of Rights

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.

There are a number of difficulties with this myth of rights approach to change. Judges cannot necessarily be counted upon to formulate a right to fit all worthwhile social goals. Even when a right exists, it can hardly be taken for granted that a remedy is close behind. Activist attorneys and those who chronicle their work are ordinarily unwilling to face up to these problems. They prefer to believe that persistence and legal ingenuity will ultimately be rewarded. The result is an ad hoc search for targets of opportunity rather than a careful sorting out of priorities as they relate to long-range goals.

But even rather sophisticated strategies of litigation have been flawed in a fundamental way by the confining legal perspective. Rights-and-remedies is primarily a test of wills and resources between the parties to suits, and it is not directly assimilable to a program of social action. Legal approaches and the rules under which courts operate tend to reduce political conflicts to disputes between parties at a given time. While these encounters are often symptomatic of underlying social struggles and ordinarily reflect more general forces, success depends on establishing a personal entitlement and often turns on distinguishing one's cause from others with similiar claims. In thus driving a wedge between potential allies, litigative tactics can impose a heavy burden on the process of political organization. There are still other problems that flow from mistakenly identifying isolated courtroom victories with real progress. Confusion of the symbolic with the real diverts attention from the inertial forces which sustain the status quo. Lawyers are, moreover, reinforced in their natural inclinations to think of litigation apart from other political tactics rather than as part of a coordinated strategy.

The Politics of Rights

The simplicities and exaggerations of the myth of rights have led in the past to overrating the progressive capacities of the law. These days, it is fashionable to employ evidence and premises that are every bit as questionable to identify legal processes with reactionary forces in the society. Neither approach will do. So basic and pervasive a social institution as the law obviously merits careful and systematic scrutiny.

To this end, I propose a political approach to analyzing the utility of litigation. No framework is adequate if it fails to attach primary importance to the redistribution of power. If litigation can play a redistributive role, it can be useful as an agent of change. If not, its political utility must be heavily discounted. The political approach thus prompts us to approach rights as skeptics. Instead of thinking of judicially asserted rights as accomplished social facts or as moral imperatives, they must be thought of, on the one hand, as authoritatively articulated goals of public policy and, on the other, as political resources of unknown value in the hands of those who want to alter the course of public policy. The direct linking of rights, remedies, and change that characterizes the myth of rights must, in sum, be exchanged for a more complex framework, the politics of rights, which takes into account the contingent character of rights in the American system.

To think about rights as officially articulated goals of public policy leads directly to a more politically sensitive perspective. It is immediately clear that the courts are only one of a number of authoritative agencies that articulate goals for the polity. Formal recognition by the courts may therefore improve the bargaining position of those upon whom the judges look with favor. Judicial acceptance does not, however, mean that the goal will be embraced more generally nor that the social changes implied will be effected. If there is opposition elsewhere in the system, the judicial decision is more likely to engender than to resolve political conflict. In that conflict, a right is best treated as a resource of uncertain worth, but essentially like other political resources: money, numbers, status, and so forth. The value of a right will therefore depend in all likelihood on the circumstances and on the manner in which it is employed, and for the social scientist this boils down to a matter for careful empirical analysis.

If it is assumed that on important matters of public policy a political struggle will follow a judicial decision, then the task of the analyst is to determine how that struggle is affected by the articulation of rights, and in this way to develop a comprehensive understanding of the utility of litigation. The legal perspective encourages concentration on the implementation of judicial decrees alone. The courts are, however, only modestly endowed with coercive capabilities—adequate, perhaps, for dealing with recalcitrant individuals but probably insufficient for bringing large groups or powerful institutions into line. Moreover, the tendency of litigation to break political action down into a multiplicity of individual transactions stretches out the process of implementation to the point that it can become not only tedious but counterproductive—one step forward, two steps back. The politics of rights implies a much more comprehensive assessment which includes but transcends the simple straight-line projection from judicial decision to compliance.

The broader question is whether litigation can be useful for redistributing power and influence in the political arena. Such possibilities exist, and they deserve careful attention and investigation. Litigation can be useful for political mobilization and can in this way affect the balance of forces. Court decrees often articulate as a right that which has been traditionally withheld—like integrated schooling—or granted only as a favor—like an adequate income for welfare recipients. These judgments can therefore alter expectations and/or self conceptions and may be useful as well in creating a new sense of collective identity. Mobilization can surely not be taken for granted as the normal and necessary consequence of litigation. Nor should it be seen in isolation from other political tactics. Even the relationship between mobilization and more traditional compliance goals poses some interesting problems. The key point is, in any case, that there are implications of litigation suggesting that it may be useful in reshaping the political arena.

The politics of rights focuses on distinctive forms of political action which are closely associated with lawyers and litigation. Attention is directed to the articulation of public policy goals by courts and to the post-judgment political process. In investigating that process it is necessary to examine both the symbolic and the coercive capabilities which attach to rights and to consider tactics that can maximize these capabilities. The utility of litigation may be expected to vary from one policy arena to another. What is useful at one stage in a process of change may be worthless or even counterproductive at another stage. In the final analysis, success may well turn on how skillfully litigation is employed and especially on how well it is coordinated with other tactics. In practice, this may all depend on the political sensitivity of lawyers and on how well they are able to work with other activists.

* * *

The organizational plan of the book flows directly from this introductory analysis. Part One, comprised of four chapters, provides a detailed analysis of the myth of rights, which is treated as a political ideology. The purpose of this section is to indicate how deeply and with what effect the roots of the myth of rights extend into the mainstream of American political thinking.

Part Two, also comprised of four chapters, sets the myth of rights into the political perspective that is required for an understanding of the politics of rights. Starting from the premise of the opening section—that the myth of rights is most sensibly treated as a political ideology—a frame of reference is developed for investigating the interplay between the ideology of rights and political action. The main message of this section is that litigation is more useful in fomenting change when used as an agent of political mobilization than when it is employed in the more conventional manner—that is, for asserting and realizing rights.

The activist lawyers who are ordinarily associated with programs of litigation are the subject of the next two chapters, which make up Part Three. The inquiry begins with an investigation of the impact of the myth of rights on legal education and professional standards. AH American lawyers, including activists, are subjected to these influences—albeit in varying degrees. The focus narrows in the following chapter to the programs and prospects of the activist lawyers and, more specifically, to the ways in which their approach to litigation is shaped by ideology and socialization. These strategists of rights, it turns out, tend to distrust politics in general and mobilization in particular.

The concluding Epilogue assesses the contribution that rights can reasonably be expected to make to a strategy for change. Once the analysis is broadened so that litigation, rights, and mobilization are put in the context of American politics more generally, it becomes immediately clear that it is not realistic to think in terms of a strategy of rights as such. Legal tactics which capitalize on rights can, however, make an important ancillary contribution. Beyond simple utilitarian calculations, the ethical costs and benefits of relying on legal tactics and on political mobilization must also be considered. What I am undertaking then is a comprehensive and value-sensitive balance sheet.

Chapter Two

LAW AS IDEOLOGY: AN INTRODUCTION TO THE MYTH OF RIGHTS

The essential premises of this study are (i) that the law furnishes American politics with its most important symbols of legitimacy, and (2) that these symbols reflect values which are the building blocks of a political ideology. I refer to this ideology as the myth of rights.

At the core of the myth of rights is the legal paradigm—a social perspective which perceives and explains human interaction largely in terms of rules and of the rights and obligations inherent in rules. Lawyers are, naturally, most self-consciously caught up in the legal way of doing things. Most Americans, however, are responsive to legal symbols—owing, I think, to distinctive cultural predispositions that Alexis de Tocqueville noticed more than a century ago. These symbols fuse the law with our formal constitutional order. The result is to lend political coherence to a singularly legal approach to politics and social intercourse. There is a strong current of belief in rights—both constitutional rights and the generality of legal rights. We believe that politics is and should be conducted in accordance with patterns of rights and obligations established under law.

Its coherence and legitimacy impart to the myth of rights a popular resonance that justifies the characterization as a political ideology. As Clifford Geertz puts it, ideology provides "a symbolic framework in terms of which to formulate, think about, and react to political problems." "The function of ideology is to make an autonomous politics possible by providing the authoritative concepts that render it meaningful, the suasive images by means of which it can be sensibly grasped." What the myth of rights offers is an integrated set of assertions about the nature and workings of American politics, intimately linked to legal processes and firmly rooted in cherished values.

The principal institutional mechanism of the myth of rights is litigation, which we are encouraged to view as an effective means for obtaining declarations of rights from the courts, for assuring realization of those rights, and for building a more just social order. The focus of the myth of rights is preeminently on courts and on the maintenance of a stable system of rules. The "political" branches of the government are, in contrast, viewed with mistrust. Their intrinsic flaws—tendencies to steer an erratic course and to aggregate power—are seen as threats to a viable constitutional order.

This preoccupation with courts, rules, and litigation—with, in other words, the legal paradigm—stems from an elusive distinction between law and politics which is so much a part of myth of rights thinking. To the extent that this line of thought does tap cultural predispositions, the myth of rights, like other ideologies, elicits support, mobilizes energies, and coordinates the activities of its adherents. It has the power to confer legitimacy, to "bind ... both cognitively and affectively, providing a basis for discussion and action." The myth of rights furnishes explanations for the past, standards for evaluating the present, and programs for social action in the future.

(Continues...)

Excerpted from THE POLITICS OF RIGHTSby STUART A. SCHEINGOLD Copyright © 2004 by University of Michigan . Excerpted by permission of THE UNIVERSITY OF MICHIGAN PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Edition details

• Publisher: University of Michigan Press
• Publication date: 2004
• Language: English
• ISBN 10: 0472030051
• ISBN 13: 9780472030057
• Binding: Paperback
• Edition number: 2
• Number of pages: 280