How I Learned to Stop Worry and Accept that Law is a Weak Form of Social Control

-- By TomaLivshiz - 16 Feb 2012

“Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation…If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same place.” Justice Brown’s ignominious opinion in Plessy v. Ferguson — from which our society has thankfully retreated—does yield an important question. Do courts make change or do they reflect it? If we believe that they do both--how do we, as future lawyers, use that observation?

When Eben first asserted that “the law is a weak form of social control,” I was defensive. Maybe you were too. Maybe you wrote your personal statement promising you would use the law to be an agent of change, as a tool for social justice, or a similarly synonymous phrase. Maybe those promises now seem trite. While I resisted his idea at first, I realized that whether true or not, the statement can help us to strategize about how we will achieve our goals after law school, rather than undermine them altogether. This paper will examine how the iconic case Brown v. Board of Education, demonstrates how law might be a weak form of social control but might still be useful in achieving social change.

Judicial Decisions as a Lagging Indicator of Social Change

Coming to law school, I saw the Brown decision as something of a superheroic event. But scholars of the era describe a more complex context. “It was inevitable that the Negro’s new nationalized political power, his enhanced economic position, and the vast improvement of the ideological climate in the country would presently spill over into the courts,” claims historian Alfred Kelly.

In his view, Brown was the result of social change rather than its catalyst. Kelly provides an etiology of the decision: Roosevelt’s attempts to integrate the armed forces in World War II, “no discrimination” clauses written into war contacts, and the desegregation campaign organized by the NAACP. Meaning, it is not clear that the social change trailing Brown saw its genesis in the decision.

The Meaning of Legal Landmarks

To claim that Brown was entirely impotent in bringing about social progress would be needlessly iconoclastic. It is a landmark decision; it affirmed the path used by seekers of change, but was neither a starting point nor an end – it was a guidepost. Thus, while the social transformation subsequent to Brown has been profound, it is has also been slow, indirect and is ongoing. Gerald Rosenberg, a political scientist who examined segregation statistics in the South concluded that “for the ten years after Brown, virtually nothing happened.” Segregated school districts maintained the status quo through disingenuous desegregation plans – plans as stillborn as they were intended to be. It would be at least twenty years of litigation, political pressure, and activism to bring about the transformation contemplated by Brown, demonstrating that indeed the law is a weak form of social control.

Brown and Other Forces of Social Control

Perhaps the decision’s attenuated effects are best explained by an examination of the types of forces it unleashed. Though lacking the capacity of social control in and of itself, Brown was unquestionably a force of physical control—a force which has been historically validated as powerful.

By merging previously separated physical realms, Roosevelt’s executive orders had allowed more effectual social forces – war, friendship, fear, necessity – to remodel race relations throughout various segments of the military apparatus.

Likewise, Brown, by marshaling students into one physical space, allowed schools to become incubators for other forces, ones with stronger social control.

Alternatively, some historians take a more cynical view of the forces cascading from the decision. Michael Klarman claims that the decision, by fuelling violent resistance to integration in the South (which was subsequently transmitted by television nationwide), “aroused [Northern Whites] from their apathy, leading to demands for national civil rights legislations which the Kennedy and Johnson administrations no longer deemed politically expedient to resist.” In Klarman’s proposed narrative, activist contagion—on both sides of the issue—was a leading force of social control in that it exacerbated racism in the South, amplified liberal outrage in the North and generated new sources of political capital everywhere.

What Does This Mean For Us?

That the proximate effects of law or legal decisions can sometimes be anticlimactic, should not discourage us. The statement “law is a weak force of social control” presents a hurdle and not a barrier. Taking heed of Cohen’s prescription for Judges in Transcendental Nonsense, lawyers can use this statement as an operating constraint when considering their inputs and designing their desired outputs. Like activists before us, we can look to legal landmarks for direction, but we should consider how to utilize all forms of social control in our pursuit of social change.