Scheingoldâs Argument
Scheingold described and criticized a broad ideological view of law, politics, and change that he labeled âthe myth of rights.â What Scheingold called the myth of rights is what I will be calling âlegalism.â Scheingoldâs book explicated and sought to debunk legalism and to replace it with a âpolitics of rightsâ perspective, which, he argued, gave us a more accurate account of âhow law and politics actually work.â What Scheingold called the politics of rights is the view that I will be calling realism.3
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 âa single âblockâ sealed off from general social history, from social theory, from politics and morality.â Legalists believed âthat law is not only separate from political life but a mode of social action superior to mere politics.â They associated law with morality and high principle, and politics with mere selfinterest and expediency.4
Scheingold retained Shklarâs view as part of what he meant by the myth of rights. However, his myth of rights was broader than Shklarâs 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. âIdeologistsâ (or law professors) and âstrategistsâ (or reform lawyers) of rights, as Scheingold called them, tended to see things legal as things apart from, and over and above, mere politicsâas a morally superior â âblockâ sealed off,â 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.5
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 processâan 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.6
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 âserious doubts about the capabilities of legal and constitutional processes for neutralizing power relationships.â The âauthoritative declaration of rightsâ was âusually only the beginning of a political process where power relationships loom rather large.â However, even as his critique of the myth of rights implied pessimism about law and change, Scheingoldâs âpolitics of rightsâ perspective provided grounds for guarded optimism as well.7
The politics of rights was âa term to describe the forms of political activity made possible by the presence of rights in American society.â 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 âunderscore[d] the crucial importance of thinking about legal tactics in combination with other modes of political action.â8
I want to note two central features of Scheingoldâs 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, Scheingoldâs 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 Scheingoldâs realistic frame of reference.9
Yet, there was a âculturalistâ undercurrent in Scheingoldâs analysis. His essentially anthropological insights about cultural resonance and symbolic power of rights pointed toward a cultural analysis of lawâtoward the role that ideas in law might play in politics, and to the need to examine various actorsâ consciousness about law and politics.10
Realism and Positivism/Culturalism and Interpretivism
The tension between legal realism and culturalism in Scheingoldâs 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 âseek to explain social behavior through the formulation of causal laws . . . which allow reliable, probabilistic prediction.â11
Realist analyses of law and policy change generally proceed through two steps. First, the realist observer provides an account of the legalistic storyâthe 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 âgapsâ between the official version and what really happened and why.12
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 Handlerâs still-useful Social Movements and the Legal System (1978) and Gerald Rosenbergâs 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 variableââthe bureaucratic contingencyââwas 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 (Handlerâs bureaucratic contingency), then Handlerâs work teaches a valuable lesson. Or, more broadly, if reformers think that courts are powerful change agents, then Rosenbergâs argument will certainly make them rethink that view.13
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 agentsâ 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 approachâone that is interpretivist rather than positivist in its approach to social inquiry and culturalist rather than realist in its conception of lawâemerged over the course of the 1980s and 1990s. It received its fullest elaboration in Michael McCannâs work.14
Interpretivism is the view that the social sciences are distinct from the natural sciences because the social sciences âfocus on thinking, interpreting, meaningfully oriented subjects, subjects who construct the world through shared meanings, in contrast to the insensate objects of the natural sciences.â Interpretive accounts of social phenomena often proceed âin consideration of the understandings of the participants involved.â 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 âthicker,â more nuanced interpretive accounts may teach us things that we cannot learn from positivist approaches and models.15 Over the past thirty years, there has been a general âinterpretive turnâ 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 âdisputesâ and social processes of ânaming, blaming, and claimingâ pointed toward the cultural significance of legal language. In political science in the 1980s, several scholars built a bridge between realist and culturalist concept...