Law, Democracy, and Domination: Law and Society Research as Critical Scholarship

By Nelson, Robert L. | Law & Society Review, January 1, 2001 | Go to article overview

Law, Democracy, and Domination: Law and Society Research as Critical Scholarship


Nelson, Robert L., Law & Society Review


It is an instructive irony that Frank Munger delivered his Presidential Address in Miami Beach. As someone who was there on Memorial Day weekend of 2000, I can report that at the time of the address there was more than the usual contrast between setting and substance. Munger issued his call for connecting law and society research to the real world of struggle and politics in the cool, windowless expanse of a plush convention-hotel ballroom. The response of the audience was polite, if not inspired. In sharp contrast, immediately outside the hotel, the hot and humid streets of South Beach buzzed and blared with a Hip Hop convention that had drawn masses of young people from around the country. This was an audience that really was turned on to the message of its leaders.

A more profound irony unfolded in Florida five months later, when the state became the focal point for the legal battle over the counting of presidential votes. When the conservative majority of the United States Supreme Court in Bush v. Gore (2000) swept aside its usual reverence for federalism to stop the recounting of ballots that might have jeopardized the election of the Republican candidate, it undercut the ideal of the autonomy of law in the American constitutional system. This is the very ideal (tacitly modeled on American courts) that Munger found had inspired law reform activists in Sri Lanka, India, and Japan.

What fraction of the American people could recognize the rather remarkable doctrinal reversal the majority undertook? The decision has drawn protest from hundreds of law professors and will be the target of withering attacks in the law reviews in coming months. But how many Americans will understand or care? Florida became a sobering lesson in the relationship among law, democracy, and domination. And it raises some deep questions about Munger's program for reintegrating activism and inquiry in law and society research.

Munger's speech in part is an individual existential statement. He talks about how he has derived personal meaning from his work and the example of others. How Munger finds personal meaning is not subject to debate. It must only be true for him. But in suggesting a collective project for law and society research, he necessarily makes claims that should be critically assessed. One of the great contributions of Munger's address is that it is global and eclectic. He usefully points out the significance of context for evaluating both law reform activity and sociolegal research. In some contexts the liberal legal project about which American scholars are suitably cynical is a potent vehicle for arguing against the arbitrary use of power and human rights abuses. The tragic assasination of Neelan Tiruchelvam vividly illustrates the political risks that scholars and activists face in some societies. It makes the political calculations that American law and society scholars engage in seem trivial. Moreover, Munger at least gestures toward the need to develop theories that connect context with broader structures, as when he offers a twist on Lawrence Friedman's famous phrase that "law is too important to be left to the lawyers" by suggesting that "governance is too important to leave to the bankers, regulators, investors, international lawyers, and political leaders of the world" (Munger 2001).

Although Munger's address is provocative and insightful, I worry that it offers an unrealistic view of law as a vehicle for achieving social justice and an unrealistic assessment of prospects for law and social science research to influence the direction of policy. Consider three recent trends involving the relationship between law and inequality in the American context.

First, consider new judicial restraints on affirmative action and equal employment opportunity. In a series of cases beginning in the mid-1980s, the Supreme Court narrowed the bases for voluntary affirmative action by public employers and contractors (see Wygant v. …

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