What is Peter D'Errico's claim regarding law and "terror?"

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THE LAW IS TERROR PUT INTO WORDS

By Peter d'Errico

We are living in a time of changing consciousness about the meaning and function of authority. Law, which is often taken to be the backbone of authority structures in society, has come increasingly under scrutiny, both for its role in maintaining oppressive social conditions and for the exceeding narrowness of legalism as a world view.

In a sense, we no longer believe in our system of legal rules the way we used to. We are beginning to see through the facade of a "government of laws" to the people who animate that system. And further, we are coming to understand that legalism is as much an obscuring veil as a clarifying lens for approaching social problems. Law and legal thinking are as frequently the cause of social trouble as the means of resolving it. Thus, as Addison Mueller has noted, in our "free enterprise" economy, "freedom of contract" is the consumer's losing card.

This growing skepticism and criticism about law is part of the decline of legalism in our culture. The decline, however, is not a simple matter. It is beset with resistance and contradiction. For example, even as the evidence becomes more and more clear that prison is a dysfunctional, self-defeating, self-perpetuating social

institution, the force of the state is called again and again into action against the victims of that institution. Likewise, even though crime is increasingly understood to be a product of social stratification, rather than a phenomenon of human nature against which society structures itself, the state spends ever more money to preserve the existing social structure and to thwart the forces of social change.

In an overall way, these contradictions are forcing us to realize that our justice system is only another social institution, subject to all the ills that befall any other institution: bureaucracy, preoccupation with its own maintenance and expansion, depersonalization of those whom it is supposed to serve, etc. Disenchantment with law as the basis for authority in social and personal life is now so pervasive that we are at a crisis in the history of law itself.

WE ARE AUTHORITY ADDICTS

Daily life under legalism is permeated in all its aspects by a belief in authority, and an accompanying tension between authoritative descriptions of the world and our own individual perceptions of life. We are authority addicts, hooked on rules. As Judith Shklar has noted, the institutional and personal levels of commitment to legalism form a social continuum: "At one end of the scale of legalistic values and institutions stand its most highly articulate and refined expressions, the courts of law and the rules they follow; at the other end is the personal morality of all those men and women who think of goodness as obedience to the rules that properly define their duties and rights."

At every moment, even to the level of how and when to eat, smile, sleep, talk, touch and move, and beyond this to the level of how and what we are supposed to

think, fantasy and dream, there are rules. Life for most people seems to be a project of obedience, of duty and responsibility to authority. Constantly there is the struggle to fit ourselves into someone else's dream, someone else's definition of reality. And with this struggle, as part of it and in turn perpetuating it, goes a fear of letting go of authority as well as attempts to impose our authority on others, preoccupation with what others think, feelings of isolation from others and the world, and fear that we will not exist if we do not define ourselves, label our relationships and categorize ourselves and each other.

David Cooper, studying such phenomena in The Death of the Family (1971), writes:

If, then, we wish to find the most basic level of understanding of repression in society, we have to see it as a collectively reinforced and institutionally formalized panic about going mad, about the invasion of the outer by the inner and of the inner by the outer, about the loss of the illusion of "self." The Law is terror put into words....

Under legalism, we are constantly trying to control ourselves and each other within limits laid down by authority, all the time not seeing any alternative to this positivistic world, accepting it as necessary and inevitable.

The concept of a person's "rights," for example, is basic to legalism. It is one of the most powerful formulations in gaining and sustaining popular support for the operation of the legal system.

The common understanding of this concept is that law takes the side of the people against governmental or other systematic injustice. This uncritical view is elaborated upon in law school and throughout the legal system. Actually, however,

once one understands that the central concern of legalism is with the maintenance of its own power system, one sees that the law only appears to take the side of the people. In fact, the real concern of legalism in its recognition of popular claims of right (civil rights, etc.) is to preserve the basic governmental framework in which the claims arise.

The concept of civil rights has meaning only in the context of an over arching system of legal power against which the civil rights are supposed to protect. Ending the system of power would also end the need for civil rights. But it is precisely here that one sees the impossibility of ending the oppression by means of civil rights law. In the end, this analysis points to the concept of personal "rights" as being a technique for depersonalizing people. We are taught to respect the rights of others, and in doing so we focus on the abstract bundle of rules and regulations which have been set up by judges and other officials to govern the behavior of people. In this focus, we miss the actual reality of the others as whole, real individuals. We end up, in short, respecting the law rather than people; and this, for legalism, is the essential aim.

Due process is another sacred cow become fair game. Legalism would have us regard this notion as the key to freedom under law, the means by which fairness and regularity are incorporated into legal decision making. In reality, due process is the attempt of the system to insure that claim and counterclaim, freedom and grievance, both occur only within the existing legal universe and in its terms.

Every due process decision is thus only a further elaboration of the pre existing legalist mazeway. People confront the claim of law to control social life, and the law responds; whatever the legal response to the confrontation, the law is

concerned with itself first and foremost. The basic due process problem, as far as legalism is concerned, is only to preserve the apparatus of official legal control, even when the framework of that control must bend to meet the demands and needs of the people whose lives the officials govern. In a critical view, due process is essentially a technique for co-opting social change forces that threaten, or appear to threaten, official control of society.

In my own experience in practicein an urban ghetto, on an Indian reservation, and in a middle class college communityI found again and again the people were able to see through law and legal processes in ways that I had been taught to close my eyes to. When their vision was rebuffed by law, it became the basis for a deep cynicism about legal process. I saw, moreover, that even when lawyers succeeded in legalism's own gamethe creation of a new rule, or the vindication of an old onethat we didn't really win anything, because legalism wasn't dealing with the roots of problems, but only with their surface appearances.

And it is not only "radical" law or legal services practice that generates such insight and skepticism. I found many traditional lawyers in conventional practices who were well aware that the law was not reaching their clients' real problems: economic, familial, psychological, and so on. These lawyers were sometimes deeply troubled by this awareness, and yet they remained unable even to articulate their experience. Locked into the mazeway of legalism in their education, and bereft of any critical viewpoint, they seemed resigned to a life of legal routine.

I have come to regard legalism as a defunct social ideology. Capable at one time of unleashing tremendous productive social forces, legalism is now only a source of confusion and contradiction. Far from uniting America into a coherent and just

society, traditional ideas of law foster division and give the stamp of approval to inequality.

ONE LEGACY OF LEGAL REALISM

If "authority" is needed for this iconoclastic view of legalism, one need only look back to the last major jurisprudential shakeup in American history, legal realism. Karl Llewellyn, one of the most profound thinkers and observers in the realist movement, commenting on "the place and treatment of concepts," wrote: "...categories and concepts, once formulated and once they have entered into thought processes, tend to take on an appearance of solidity, reality and inherent value which has no foundation in experience." In a time like the present, when belief in the central myths, or explanations of reality, around which our social life has been organized is increasingly breaking down, it becomes especially important to go beyond superficial exploration of social phenomena to an examination of concepts. The legal realist movement opened the door to new ways of thinking about the law, ways colored by non- or even anti-legalist perspectives.

The cry to go beyond legalism has come from other quarters, too. Brainerd Currie, writing about the materials of law study in the early and middle 1950's put forth an unmistakable critique:

Solutions to the problems of a changing social order are not implicit in the rules and principles which are formally elaborated on the basis of past decision, to be evoked by merely logical processes; and effective legal education cannot proceed in disregard of this fact. If men are to be trained for intelligent and effective participation in legal processes, and if law schools are to perform their function of contributing through research to the improvement of law administration, the formalism which confines the understanding and criticism of law

within limits fixed by history and authority must be abandoned, and every available resource of knowledge and judgment must be brought to the task.

A humanistic legal studies accepts this challenge in a context that is wider than Currie's concern for legal process and law administration. Dealing with the central themes of human social life in a problem oriented, question posing way, this mode of study is free to pick up on even the most radical and far reaching changes which are occurring in human consciousness. Legalism's continuous attempt to preserve old values by giving them new meaning can be replaced by an attempt to follow new meanings into a transvaluation of the central features of law and social life.