Telling a Less Suspicious Story: Notes Toward a Non-Skeptical Approach to Legal/Cultural Analysis

Abstract

In the generation of law and society research that emerged with the formation of the Law and Society Association, sociolegal scholars, building on the Legal Realist attack on formalism, told a story primarily about the possibility of social progress through law. Over the past two decades, however, sociolegal scholars have become increasingly disenchanted with the reformist project. These writers, influenced by Michel Foucault and other postmodern theorists, have begun to see law not as an instrument for dispensing justice, but as a constitutive societal force shaping social relations, constructing meaning, and defining categories of behavior. As part of the move to view law as a constitutive force in social relations, many sociolegal scholars have chosen to go even further and emphasize law's role as a pervasive form of social control. Law is seen as inherently implicated in the maintenance of inequality rather than its amelioration. Accordingly, the focus of sociolegal scholarship often involves uncovering how law's coercive power is inscribed in all legal discourse and practice. Such a move reflects, perhaps, the increasing skepticism of postmodern scholarship more generally. This article suggests that sociolegal scholars might benefit from taking a less skeptical approach to the study of law and might instead try to envision law as a useful forum for discourse in a post-postmodern society. In a multicultural country where there are more and more available narratives and no one narrative necessarily holds a privileged position as "truth", we need a societal practice such as law that emphasizes multiple perspectives and multiple viewpoints. Accordingly, we can view legal discourse (at least in its ideal state) as a constructive terrain of engagement among diverse populations and therefore a vital part of building a civil society. Such a vision provides a potential answer both to right-leaning communitarians who claim that "law talk" is destroying American community and left-wing academics who tend to portray law only as a tool of elites or a form of hegemonic power.