Law in Contemporary Society

The Revolutionary Lawyer

-- By TaylorMcGowan - 26 Feb 2010

The Need for Revolutions

According to Thurman Arnold, altering organizations supported by a society’s prevailing myths requires either instituting changes that appear to fit the established paradigm or waiting for a revolution to provide a more amenable mythology. While Arnold believes that the latter is merely an extension of the former since both fill the vacuum left when older organizations cease to be sources of “inspiration and private action,” working within a mythology makes organizational change both highly dependant upon particular historical exigencies and constrained by the adopted folklore. For these reasons, lawyers who want to produce significant change in society without waiting on history will have to serve as catalysts for revolution by working to destroy the prevailing mythology.

An Important Degree of Difference

Although Arnold is correct in acknowledging the importance of historical conditions in changing social organizations, his belief that revolutions are more the product of historical happenstance than concerted action downplays the importance of actors in initiating social change. In order to usher in new ideas and organizations, revolutionaries have often chipped away at the established folklore that restrains change, thereby creating a new social order. While the difference between supplanting the prevailing mythology and making changes within it appears to be one of degree, that degree of difference determines the nature of the justice sought and the timeliness with which it is ultimately achieved. Comparing the ephemeral successes of politicking to the achievements of social movements utilizing civil disobedience helps to highlight this difference.

Example: Politics vs. Civil Disobedience

The politician, in the words of Arnold, “works within [the mythology] unscrupulously to get results.” While this strategy can be efficacious in producing change without conjuring up great resistance, it nonetheless has the effect of advancing whatever ends will successfully fit the established paradigm rather than those which are “broad or humanitarian.” This trade-off between expediency and results limits the pursuit of justice and ties progress to the historical circumstances that determine whether a given mythology will permit change. The New Deal reforms that Arnold cites as an example of this political strategy were successful in shaping organizations to aid working-class Americans, however, these changes were only possible because the prevailing mythology struggled heavily under the weight of the Great Depression. As America has become further removed from that era, much of the progress made by FDR’s administration has either been retarded, or in some cases reversed, because the mythology that places the capitalist at the top of the social pyramid still survives. (Deregulation of business, union busting, increasing wealth disparity, and the continual breakdown of the progressive tax system should all be seen as evidence of this proposition.) In choosing to work within that mythology, rather than destroy it, Roosevelt sacrificed an opportunity to significantly alter the economic landscape in America for generations to come, thereby failing to meet Arnold’s lofty expectations for his administration and putting true progress years behind where it might have been.

The actor engaged in civil disobedience, however, does not work with established myths but rather seeks to replace them. By drawing attention to injustices and refusing to abide by certain laws, these actors weaken the hold of a mythology that survives off conformity. (In his “Letter from a Birmingham Jail,” Martin Luther King notes that “[n]onviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue.”) The Civil Rights movement, which was driven by mass acts of civil disobedience, destroyed the mythology of de jure racial segregation. (Sadly, the mythology surrounding de facto racial segregation still exists.) As a result, what could have been potentially impotent court decisions became the settled law of the land and much of the progress achieved in the Civil Rights movement is firmly cemented in American jurisprudence. Although it took decades to achieve, leaders of the Civil Rights movement took history into their own hands and produced the type of social change that will last generations.

A Little More Gandhi, a Little Less Holmes

Lawyers who wish to create such lasting social change cannot practice law like politicians; they must instead emulate the leaders of social movements. Mythologies shape biases and, as Jerome Frank argues, those biases permeate our court system. Without somehow altering the overarching mythology, those biases will hinder the pursuit of a more just social order. While this will require lawyers to go beyond the traditional work of organizing facts and making legal arguments, lawyers committed to changing the status quo will find such activity within their job description. Admittedly, overturning a society’s myths and instituting new ideas is a daunting task; however, lawyers possess the skills necessary to produce such revolutionary change.

The Tools for Change

Armed with their analytical and observational faculties, lawyers can identify the tension between a society’s fidelity to a mythology and its underlying dissatisfaction with social organizations shaped by that mythology. This allows lawyers to strategize how to attack an established folklore while mitigating the resistance to such an attack. Specifically, they can assess which battles are winnable and which ones invariably end in defeat so as to maintain momentum behind organizational change and ensure that progress is continually made. Although it is impossible to win battles against myths through argumentation, lawyers can nonetheless use their persuasive abilities to achieve victory by rallying others in opposition to those myths and in support of new organizations. By exploiting this pre-existing tension, lawyers can exorcize harmful myths and establish new, and more serviceable, institutions.

Concluding Statements

While this is a grossly generalized account of how lawyers can reshape society, the advocacy skills developed in the legal profession undoubtedly enable lawyers to create lasting social change so long as they are willing to wield them more like Gandhi (a lawyer himself) than Oliver Wendell Holmes. Practicing law in an environment dominated by myths inimical to justice will only produce change that is, at most, temporary. The prospect of turning a lawyer into a social revolutionary may be an unsettling proposition to some, but turning the pursuit of justice into a rat race should be unsettling to everyone.

The use of the word "revolution" here is inconsistent, sometimes meaning more or less its conventional denotation, and sometimes denoting a change in the prevailing cultural patterns rather than social structure and order of power. For someone who believed in semiotic determinism, I suppose, the uses might be consistent, but for everyone else they are a powerful source of unclarity.

I think the basic point being made, if made simply, works well: some objectives lawyers might have would require the construction of social movements to achieve. In that case, a social movement might be both an instrument and a client. I recognize this configuration of practice. But I don't think Thurman Arnold is more than a secondary theorist for such a lawyer: the issue isn't the creeds of existing institutions, but the cultural paraphernalia that holds the social movement together. Its own creeds, in Arnold's terms, are the first matters in view.

In my own experience, it is the elaboration of the institutions permitting the organization of the movement that requires the primary ingenuity. This you do not spend the requisite attention on, being led astray by your own "revolutionary" rhetoric. Building a revolution means creating organizations, of however innovative a kind, and it is the work of creation, not the work of destruction, which induces success.

After contemplating how to edit my paper and getting nowhere doing so, I think I need some advice on how to proceed. Alternatively, I hope to elaborate on my argument.

I can see where my use of the term “revolution” can be confusing, however, I’m not sure I agree that it is a powerful source of unclarity. Doesn’t changing the prevailing cultural patterns invariably lead to change in social structure and order of power? As far as I understand him, Arnold appears to conflate these two denotations as well since his own use of the term “revolution” appears to refer to changing creeds and myths rather than mere political upheaval while nonetheless hinting that the former leads to the latter. But if my use of the term does indeed need clarification, should I merely explain my use of the term “revolution” and what I think it means in this context, or should I use the term “revolution” to only denote either its conventional meaning or the overthrow of established ideas that I primarily discuss?

With regard to my central argument, I want to state that I in no way intended to downplay the significance of creating organizations and ideas within social movements. In fact, I see the work of creation as the most important element in building a successful social movement and altering the status quo. That being said, while this creative work is a critical element, it is, by itself, insufficient to produce long-term change. That was the central thrust of my argument. Without removing the cultural paraphernalia that prevents change, social movements will find it difficult for the organizations they create to build their own mythology and embed themselves into the fabric of society. A good lawyer, rather than simply promoting a new organization/movement, will need to actively work against the institutions that he/she is trying to replace – hence, my example contrasting the work of politicians to those involved in civil disobedience. If I should focus on the creative aspects of social movements and how lawyers can be involved in it, I will certainly do that, but I feel that such changes will radically alter the thesis I was trying to advance.

Recommendations from anyone would be appreciated, however, I feel advice from Eben would be most helpful considering that his criticism of my paper is plastered in red text right below it.


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r6 - 13 Jan 2012 - 23:14:29 - IanSullivan
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