Over at the new Law & Mind Blog, several Harvard Law students have been blogging about a chapter (forthcoming inIdeology, Psychology, and Law, edited by Situationist Contributor Jon Hanson) by Mitchell Callan and Situationist Contributor Aaron Kay. In the second post on the topic (copied below), LLM candidate David Simon discusses legal socialization.
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Imagine you and your neighbor share a fence along a common border, part of which demarcates the boundary between both properties and “the wilderness.” The fence benefits both of you because it keeps out the livestock-killing coyotes. One day, a shared and critical part of the fence collapses onto your property, leaving your yard open to coyotes, who may eat your livestock. Without legal recourse, how might you resolve that dispute. Would you work with your neighbor to help reconstruct the fence? Would the solution be cooperative or adversarial? (For more on the resolution of land disputes without the aid of law, see Robert Ellickson, Order Without Law: How Neighbors Settle Disputes.)
Did Jack McCoy's role on Law & Order influence your perception of people as self-interested?
If we introduce law into the equation–say, by inventing a right that allowed you to sue your neighbor–how would the resolution of that dispute change? Might you claim that your neighbor ought to fix the fence herself, even if an unrepaired fence might harm you?
Mitchell J. Callan & Aaron Kay think that the answer to that last question may be “yes”: the law may in fact alter how we think about situations and how we interact (cooperatively or not) with others. This occurs, they argue, through a process called legal socialization: the process by which exposure to law can reinforce conceptions of individuals as self-interested and competitive. (This occurs, for example, by exposure to popular depictions of the legal system, such as those on Law & Order, as Beth describes in her post.) If you’re curious about how they reach this hypothesis, Becky’s blog post explains it for you. But the basic idea is this: if exposure to certain ideas influences how one thinks and acts, exposure to systems embedded with latent ideas might do the same. Because the U.S. legal system conceptualizes people as self-interested and competitive, exposure to it can reinforce notions of people as competitive and self-interested.
Identifying this phenomenon in everyday events is a bit more difficult than it sounds–largely because legal socialization seems to be gradual rather than punctuated. Nevertheless, there are instances where we can view the law as reinforcing certain conceptions of the individual.
Take, for example, Arizona’s recent enactment of SB-1070, one of the strictest immigration laws in recent history. Among other
Humor is one way to diffuse conceptions of people as self-interested and competitive.
things, the law criminalized both attempts by illegal immigrants to work, and attempts by others to solicit work from illegal immigrants (Sec. 13-2928). That provision alone seems to have “competitive” or “self-interest” overtones. In some ways, though, the law might be a product–rather than example–of legal socialization. I.e., the law represents how people perceive others are likely to act. In this case, the law conceptualizes an “outgroup” (immigrants) as a competitive threat, and seeks to neutralize that threat by preserving the “ingroup’s” (Arizona residents) interest. The law is both shaped by, and an embodiment of, visions of individuals as competitive and pursuing selfish aims.
What’s troubling is not so much the characterization of the individual, but the effect it has on social behavior and thinking. It may, for example, engender actual competitiveness where none existed before; that is, it may decompose social relations, rather than strengthen them. Interestingly, some groups have seemed to pick up on this dynamic already. When Arizona signed the law into law,
the Mexican American Legal Defense and Educational Fund . . . predict[ed] that the law would create “a spiral of pervasive fear, community distrust, increased crime and costly litigation, with nationwide repercussions.”
Though potentially exaggerated, those are the kinds of results we would expect given Callan & Kay’s findings. A law that reinforces stereotypes of the individual as competitive and self-interested will strengthen and propagate that stereotype. That, in turn, can have anti-social effects: less cooperation, more stratification, and enhanced hostility between “groups.”
School Board Meetings & the Open Access Law
For those unfamiliar with school board meetings, they can be nasty affairs. Disputes between the board and superintendents often are bitter–the board is an “outsider” to the superintendent, who “runs the school.” Disputes also can arise between the public–which wants to know what the board is discussing–and the board, which wants to run the meeting in a particular way.The latter dispute recently arose in a school board meeting in Oklahoma. The superintendent of schools in the district apparently has a knack for “poor behavior,” such as yelling. But beyond incivility, the author of the hyperlinked editorial is concerned with the law:
No one can force the grown-ups to act as such. But they can and should be compelled to follow the law.
Krushchev would have fit in well with some members of a recent Oklahoma school board meeting.
What law, you ask? Laws ensuring public access to meetings of public bodies–so called “open access laws.” The overarching purpose of such laws is to prevent secrecy among public bodies. Because public schools are accountable to, well, the public, most states have open access laws that govern their board meetings. In Illinois, for example, the Open Meetings Act requires most public school board meetings to be open to the public. When the board conducts closed or private meetings, it must videotape or record them.
Back to the author’s request: “follow the law.” Now, requiring people to follow the law is not an unreasonable request–and, indeed, it may be just the right thing to do. But notice how, in this case, the law itself is being used to quell what the author sees as the school board’s self-interested behavior. What, exactly, was that behavior? The author thinks it was a deliberate attempt to avoid disclosing issues to the public:
Much of the initial ruckus at the meeting involved three potential employees Barresi recommended for hire. But none of the names nor the positions they were to fill were listed on the agenda. Instead, the meeting’s posted agenda listed a “Report on Department personnel changes” as an item on the consent agenda.
I don’t know the board’s motives for issuing such a vague description. Maybe it was trying to be sneaky, or maybe it was just issuing a general topic to be discussed at the meeting. That’s not the point. What matters here is that the author’s sense of the activity (some kind of impropriety) is shaped by the law–more specifically, the author sees a person whose acts conform to the image the law projects.
Let’s see exactly how that is so. The law here is a mechanism to prevent the board from pursuing self-interested ends. Indeed, the law “sets up” this conclusion. The law assumes school boards and administrators as likely to meet in secret–as pursuing self-interest. By trying to prevent certain behavior, the law makes assumptions about how people will behave; in this case, it assumes they will behave in a self-interested fashion.
That assumption may or may not be accurate, but it certainly colors the author’s analysis of the issue. The author assumes–as does the law–that the board was providing vague descriptions because it had self-interested ends. Why? Because that is exactly what the law assumes. The author’s assessment may be correct, but the law’s conception of the individual certainly influences how one thinks about the situation. One might say, “Well, if the law says you have to do X because, if you don’t, your probably pursing self-interested aims, then you likely are pursing self-interested aims when you fail to do X.”
Pushing for people to follow “the law” may not be a bad thing, but when the law leads to perceptions about people’s nature, it can have unintended and potentially harmful consequences. The law presumes the school board will act in self-interested ways–and that may have socialized the author to view the board’s actions as violating the law (i.e., as self-interested) when they are not. Might the situation have been different if no law had existed? Would different norms have developed? Would the situation been viewed the same way?
Callan & Kay aren’t just concerned with cognition, though. Recall that they hypothesize that our conception of the law can actually influence our behavior. Maybe this is just such an instance. Instead of working with the board in a cooperative way, the author seeks legal recourse simply because the law leads the author to see the board’s behavior as self-interested.
I want to close with some thoughts on the legal socialization hypothesis, which I find interesting. I can’t help but wonder whether the law’s default preference in many cases is necessitated by actual self-interested or competitive behavior. Many times it’s difficult to separate what laws are merely socializing people to competitive and self-interest conceptions of human behavior from those that actually protect people from such behavior. Callan & Kay do note that the influence of the law on cognition and social relations is likely individual-relative–more research needs to be done. Even when controlling for such individual differences, though, I find the distinction a bit fuzzy. Do securities laws (false advertising laws, trademark laws, etc.), for example, protect people from actual (anti)competitive and self-interested behavior or merely reinforce such conceptions of human nature? The answer in that case is probably both, which is not particularly satisfying.