Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social Change
Kostiner, Idit, Law & Society Review
The role of law in social change has been a subject of many academic debates. However, not much attention has been given to the contradictory ways in which activists for social change justify or criticize the use of law. Drawing on in-depth interviews with 25 social justice activists, I analyze the ways in which activists evaluate the role of law in social change. I find that activists invoke three distinct schemas of evaluation: instrumental, political, and cultural. The instrumental schema emphasizes change in the allocation of concrete resources; the political schema views change as the empowerment of marginalized communities; and the cultural schema emphasizes the transformation of assumptions that are shared by all members of society. Each schema provides activists with a particular order of justification that enables them to justify or to criticize the role of law in social change. While the multiplicity of schemas sustains the commonsense notion of law as a means for social change, it also accounts for possible changes in this notion.
Does law matter for progressive social change? Can social movements use legal tactics to promote social justice? These questions have been of great concern for sociolegal scholars in the past decades. Some studies of the effects of law on social change have tended toward a critical view of law, arguing that legal tactics are usually futile in bringing about meaningful social reform (Rosenberg 1991). Reacting against this critical view of law, other studies have suggested broadening the definition of law to include the meanings that activists who participate in legal campaigns assign to legal norms. Based on this redefinition of law, scholars have argued that legal tactics may indirectly empower social movements and provide leverage for political mobilization (McCann 1994; Silverstein 1996). However, both perspectives on law and social change do not explore systematically the ways in which social justice activists conceptualize social change and the extent to which this conceptualization shapes their understanding of the role of law in social change. In other words, the current literature does not give us a good account of how culture works in the interaction between law and activism for social reform.
To study how the culture of law and activism works in action, I have conducted interviews with 25 social justice activists, all of whom work primarily on issues of educational justice. These interviews allow me to analyze the various ways in which social justice activists understand the relationships between law and activism. I find that activists express a variety of views about the role of law in promoting or preventing social change. At face value, these views seem chaotic. A closer analysis, however, reveals that ideas about the role of law in social change are justified based on three distinct cultural schemas: instrumental, political, and cultural. Each schema represents a different way of understanding activism for social change. The instrumental schema emphasizes the need of marginalized people to have concrete resources such as jobs, health care, and quality education. The political schema emphasizes the need of marginalized people to be empowered, united, and politically mobilized. The cultural schema emphasizes the need to transform the taken-for-granted assumptions that are shared by all members of society.
Each schema provides activists with a particular rhetoric, or "order of justification" (Boltanski & Thévenot 1991), which enables them to evaluate the role of law in social change. Under each schema, activists may praise or criticize the role of law, but their mode of justification is different in each schema. The various academic accounts on law and social change tend to ignore this complexity, and therefore, each of these accounts provides us with only a partial understanding of the relationships between law and social change. …