Title: The paradox of extralegal activism: critical legal consciousness and transformative politics
Abstract: The limits of law in bringing about social change have long preoccupied thinkers. Recent schools of thought have built upon the critical understanding of these limits to produce a body of literature that privileges activism. These writings present alternatives to the path of reform, purporting to avoid the problems of cooptation and deradicalization that hindered earlier activism. Three focal points emerge in this literature: first, a move from professionalism to lay lawyering; second, a move from the arena to an autonomous sphere of action; and third, a departure from formal norms to softer, informal normativities. This Article demonstrates how these recent developments have drawn erroneous conclusions from critical understandings about the cooptive risks of strategies. In particular, proposed alternatives to reform strategies fail to recognize ways in which they are frequently subject to the same shortcomings they seek to avoid by opting out of the arena. Linking historical examples from the labor movement and the civil rights movement to contemporary social movement and public interest literature, the Article charts a nuanced map of cooptation critiques, which include distinct claims about resources and energy, framing and fragmentation, lawyering and professionalism, crowding-out effects, institutional limitations, and legitimation. The Article argues that the contemporary manifestation of a critical consciousness has eclipsed the origins of critical theory, which situates various forms of social action on more equal grounds. The new truism, which rejects reform as a transformative path for social change, consequently risks reinforcing the very account that it sets out to resist--namely, that the state is no longer able to ensure socially responsible practices in the twenty-first-century economy. I. INTRODUCTION The limits of the law as a means of effecting social change have been a key focus of thinkers over the past several decades. The aggregate impact of emerging schools of thought challenging the value of reform in producing social change has been the development of a contemporary critical consciousness--a conventional wisdom about the relative inefficacy of law. (1) Critical claims go further than simply expressing disappointment in the capacity of the system to achieve the desired goals of a social movement. An argument that has become increasingly prevalent in scholarship states that the law often brings more harm than good to social movements that rely on strategies to advance their goals. The law entices groups to choose strategies to advance their social goals but ultimately proves to be a detrimental path. The negative effect is generally understood as legal cooptation--a process by which the focus on reform narrows the causes, deradicalizes the agenda, legitimizes ongoing injustices, and diverts energies away from more effective and transformative alternatives. Consequently, the argument proceeds, the turn to the law actually reinforces existing institutions and ideologies. As they engage with the law, social reform groups become absorbed by the system even as they struggle against it. When examining closely the dominant set of assumptions underlying recent critical scholarship, one must face the question: what is uniquely about cooptation? This Article considers the claims of cooptation as they have been developed vis-a-vis former periods of social activism--primarily the New Deal labor movement and the 1960s civil rights movement--in relation to recent scholarship that purports to provide alternatives to cooptive processes. It traces the impact of critical understandings of the law to three strands of contemporary extralegal schools of thought that operate under a critical consciousness. The Article argues that the limits of social change are not confined to reform, but in fact are as likely (if not more so) to occur in the realm of activism. …
Publication Year: 2007
Publication Date: 2007-02-01
Language: en
Type: article
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Cited By Count: 46
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