Legal Struggles and Social Justice
ATTAINING SOCIAL JUSTICE by way of legal struggles is problematic. Weber's notion of the conflict between formal rationality and substantive rationality is a key. On the one hand, law provides the tools for challenge in a court of law—an opportunity to be heard, to be able to name an injury in words recognized in law, to introduce evidence, to cross-examine, and to have an enforceable decision applied to injustices. On the other hand, it often undermines grassroots mobilization by denying genuine expression of those in struggle, allowing legal constructions to represent otherwise complex issues. It often relegates the final word to specialists (lawyers) denying indigenous understandings and redirects oppositional energy into legal channels that may take many years to resolve, thus often cooling out dissent.
FOR SOCIAL JUSTICE
Under such doctrines as terra nullius, meaning supported in law, indigenous peoples have been repressed in law. In so-called Indian cases in the United States in the early to mid 1880s, higher justices provided further legal grounds for the repression of indigenous peoples. In addition, “Dred Scott cases” legitimized a second-class citizen status to African Americans.1 In Plessy v. Fergusson (1896), with its “separate but equal” standard established by the Supreme Court, legal repression of peoples continued.2 This doctrine was overturned in Brown v. Board of Education (1954), which decided that “separate but equal is inherently unequal.” This radical departure by the Supreme Court, lead to a movement away from focusing on conditions that fostered racism (i.e., employment, education, and medical care) and statistical disparities to focusing on perpetrators and requirements of proving individual intent. Some (Bell 1980) argued that Brown v. Board of Education was not based on enlightened thought but on concern with what the alternative might bring. More recently, gays, lesbians, and queer theorists have seen U.S. Supreme Court decisions restricting their aspirations for consensual sex as well as qualifiedly supporting them.
Perhaps one of the main confrontations the law has had with social science is the finding that racism has influenced imposition of the death penalty. In 1987