The Autonomy-Community Balance
and the Equity-Law Distinction:
Anarchy's Task
for Psychological Jurisprudence
Dennis R. Fox

1993: Behavioral Sciences & the Law, 11, 97-109
1990: Original version presented at the Annual Meeting of the American Psychological Association, Boston

abstract
article
Psychological Jurisprudence and Political Ideology
The Autonomy-Community Balance
Law and the Anarchist Insight
The Equity-Law Distinction
Law, Equity, and Justice
Jury Nullification
The Ninth Amendment
A Task for Psychological Jurisprudence
references
related material
This paper reflects an extension of my earlier focus on anarchism's effort to balance autonomy and community into areas of the law. Not that I expect psychologists interested in law to become anarchists, but hey, that doesn't mean they shouldn't think about it.

Note: This version may not exactly match the published version!

--------------------------------------------------------------------------------

--------------------------------------------------------------------------------

--------------------------------------------------------------------------------

--------------------------------------------------------------------------------

Abstract

Anarchist political theory holds that efforts to achieve an optimal balance between individual autonomy and psychological sense of community are often hindered rather than helped by institutionalized legal principles and practices. Despite law's dominance, echoes of earlier forms of social organization more in keeping with optimal well-being may be identified in legal doctrine related to such topics as the distinction between law and equity, jury nullification, and the Ninth Amendment, all of which have been subject to much criticism. Adherents of psychological jurisprudence concerned with the subjective experience of law and with social justice should take seriously the anarchist position that radical social change is needed to help society progress in a direction more suited to basic human needs and values.

--------------------------------------------------------------------------------

Article

The development of a psychological jurisprudence (Melton, 1987, 1988, 1990, 1992; Melton & Saks, 1986) presents the possibility that psycholegal scholars will contribute to the kind of fundamental social change that is necessary if modern society is to become more conducive to fulfilling basic human needs and values (Albee, 1982; Fox, 1985, 1991, 1993; Haney, 1980; Prilleltensky, 1989, 1990a). Psychological jurisprudence is "a theory of legal action that is derived from an understanding of the law's subjective significance in our lives" (Melton, 1988, p. 894). Mere understanding, though, is not enough: "It is important not to stop with knowledge about an understanding of the law, but to continue until an effective response to it is acquired and maintained. We must use that knowledge to clarify the goals of legal policy" (Melton, 1988, p. 894).

Melton's (1988) call for action is consistent with organized psychology's increased advocacy role (Grisso, 1991; Roesch, Golding, Hans, & Reppucci, 1991). Unfortunately, although the logic of psychological jurisprudence is fully compatible with a radical perspective on legal and other policy issues (Fox, 1993), most adherents of psychological jurisprudence emphasize liberal reform rather than radical change (Melton, 1990, 1992). This mainstream emphasis no doubt stems from a variety of factors. Particularly relevant may be the questionable assumption that the values of law and the values of psychology are compatible (Melton, 1990; see Fox, 1993); the traditional role of psychology as a bulwark of the status quo (Fox, 1985; Prilleltensky, 1989, 1990a; Sarason, 1981); and the belief that "in many instances legal change is simply a poor vehicle for social change" (Haney, 1980, p. 174; see Fox, 1993).

Despite psychology's reformist focus, examining the potential relationship between psychological jurisprudence and more radical perspectives can be illuminating. In the present article, I speculate about the relevance for psychological jurisprudence of anarchism, a political theory with much to say about the social psychology of law, social organization, and the centralized state. If anarchist theorists are correct, then we must confront the possibility that law itself is an obstacle to psychological wellbeing and social justice. Whether this confrontation leads to redirected reform efforts or to more radical steps, examining the law through an anarchist lens can provide a context for interpreting a wide range of legal phenomena, including those discussed below: the distinction between law and equity, jury nullification, and the Ninth Amendment to the United States Constitution.

Psychological Jurisprudence and Political Ideology
According to psychological jurisprudence, psychology has basic principles that should serve as a normative framework for evaluating law: dignity, personhood, autonomy, privacy, justice, equality, psychological sense of community, and so on. The inclusion of justice, equality, and sense of community clarifies that more is necessary than the satisfaction of purely individualistic needs. Thus, once we move from the individual to the societal level of analysis, any theory of psychological needs raises "profound ideological and sociopolitical implications" (Prilleltensky, 1990b, p. 127). Personality theories, explicitly or implicitly, become inextricably linked to political theories, and "one's theory of psychology can act to define the limits of political change" (Haney, 1980, p. 157, ft. 20). Not surprisingly, this link inevitably leads to disputes among competing ideological camps.

The suggestion that psychologists should clearly tell judges and legislators that radical political and legal change would be best for human beings inevitably raises issues of values and politics that mainstream researchers generally seek to avoid. Such a suggestion also raises practical questions for social scientists seeking to gain a foothold in legal institutions suspicious of outside influences. Considering the law's traditional reluctance to openly take notice of extralegal inputs, scholarly hesitancy is understandable. On the other hand, if law itself is inherently value-laden, "a psychological phenomenon . . . primarily rooted in the intellectual, emotional, and spiritual life of the people in a community" (Berman, 1977, p. 75), then law should be particularly susceptible--and legitimately so--to reasoned value positions grounded in supportable psychological theory and available data.

To respond honestly to criticisms that suggestions for social change are ideological rather than "objective," we should make explicit the degree to which our notions of psychological wellbeing and societal functioning are linked to our own political ideology. Those links are inevitable, even when they are unacknowledged and perhaps especially when they are unrecognized. Clarifying that linkage might also remind us that legal actors with different agendas will not automatically act as we think they should simply because our research seems to support our politics (Fox, 1991).

up to top

The Autonomy-Community Balance
In my view, the central focus of psychological jurisprudence should be the degree to which law both reflects and affects the inherent tension between two competing values: individual autonomy and a psychological sense of community. These values subsume dignity, autonomy, equality, and other values proposed as fundamental. Primary importance, however, should not be placed on how any single value is fulfilled absolutely. Instead, what is crucial is how efforts to balance individual autonomy and a psychological sense of community are helped or hindered by particular legal and political structures, practices, and theories.

The tension between individual autonomy and psychological sense of community (or between similar values and needs with different labels) has been considered central by many psychologists concerned with both individual wellbeing and the relationship between the individual and the wider society (Fox, 1985). Efforts to balance our conflicting needs are basic to discussions of legal, political, and personality theory and to a variety of topics within social psychology (e.g., trust and cooperation, equity and equality, exchange and communal relationships, conformity and hierarchy). Much of this work follows Bakan (1966), who insisted upon the importance of balancing agency and communion for individual and societal well-being. Bakan noted the inevitable problems of a society such as the United States that is too agentic, where a primary concern for individual autonomy results in a dearth of communion or mutuality. Recent emphasis on psychological sense of community, often tied to a critique of a sole focus on individualism (e.g., Fox, 1985, 1986a; Prilleltensky, 1989, 1990b), owes much to Bakan as well as to more explicitly political psychologists such as Fromm (1955), Sampson (1977, 1988), and Sarason (1974, 1976/1982).

That balancing individual autonomy and psychological sense of community is a worthy goal may not be controversial in the abstract, at least among psychologists, but in practice people differ in the degree to which each is seen as necessary or desirable. For example, political and philosophical libertarians often emphasize autonomy over community; the American Civil Liberties Union's position on the First Amendment comes to mind, as does the Libertarian Party's underlying political philosophy. On the other hand, some conservatives and religious fundamentalists, as well as some feminists and political radicals, insist that individual rights of expression should be subordinated to community stability and solidarity, as in the debate over restrictions on pornography and hate speech. Of course, given the polarizing nature of winner-take-all court opinions and the adversarial ethic, it is not surprising that public issues are often framed in an either-or context. If the law is at least in part a forum for battle between competing values, then it makes sense to expect legal conflict to reflect that competition. Unfortunately, "because of the process by which it is created and enforced, law selectively expresses the values and prejudices, as well as the common sense, of the dominant group in any culture" (Haney, 1980, p. 191, ft. 87). As a consequence, and although there are undoubtedly exceptions, it becomes reasonable to hypothesize that law tends to hinder rather than help individuals in the difficult quest to attain the optimal autonomy-sense of community balance. Such at least is the anarchist position.

Law And The Anarchist Insight
To simultaneously achieve conflicting goals is inherently difficult. It may, in fact, be impossible in any state political system. This is the lesson taught by anarchist theorists, who claim that the centralized, hierarchical, coercive state inevitably destroys both individual autonomy and a psychological sense of community. Although it is common to dismiss anarchism on the grounds of impracticality or because of an assumption that anarchists throw bombs rather than ideas, anarchist philosophy has intrigued a number of social scientists and theorists, including such psychologists as Erich Fromm (1955), Paul Goodman (in Stoehr, 1979), Abraham Maslow (1971), Noam Chomsky (1973) and Seymour Sarason (1976/1982). What has attracted these psychologists? And what relevance does anarchism have for psycholegal scholars?

Although there is no single body of enshrined anarchist dogma, some generalizations about basic anarchist principles can be drawn (e.g., Bookchin, 1971, 1982; Ehrlich, Ehrlich, DeLeon, & Morris, 1979; Fox, 1985, 1986b; Holterman & van Maarseveen, 1984; Ritter, 1980; Taylor, 1982). Rather than a rejection of all social order, anarchists (at least those on the political left) seek to replace top-down state-mandated order with bottom-up, decentralized social organization, because "valuable behavior occurs only by the free and direct response of individuals or voluntary groups to the conditions presented by the historical environment" (Goodman, 1966/1979, p. 176). They seek to end hierarchy and domination and to enhance empowerment and self-management, recognizing that the centralized state, even a benevolent one, is inherently destructive of both individual autonomy and psychological sense of community--a phenomenon that Sarason (1976/1982) called the central anarchist insight. Anarchists oppose the selfishness, materialism, alienation, and social isolation identified with both capitalist and noncapitalist state systems. They favor spontaneity, creativity, mutual aid, and community life. They seek "communal individuality" (Ritter, 1980) in a "free community" (Bookchin, 1982), striving to "do their own thing" within the context of communal life and to create communities with social conditions that enhance the positive aspects of human behavior and discourage the negative ones. Anarchists seek, in short, to maximize the simultaneous achievement of both individual autonomy and psychological sense of community in societies organized without the state.

Centralized state solutions, of course, are typically law-focused solutions, so it is not surprising that anarchists and like-minded theorists have had much to say about law, often bluntly: "Law then is a robbery and involves the domination of the few over the many. As a way of organizing social life it is itself corrupting" (Bankowski, 1983, p. 272). Law is corrupt partly because under a system of law people become "overdependent" on legal solutions (Black, 1989), losing their ability to work together to resolve conflicts (Bankowski, 1983; Black, 1989; Bradney, 1985) as they learn that people are not capable of being good unless they are forced to be good (Lerner, 1982). "In theory, law makes trustworthiness unnecessary, even obsolete. When law is fully in command, morality itself loses relevance. Right and wrong become a specialty of professionals such as lawyers, police, and judges. Justice becomes an industry" (Black, 1989, p. 85; see also Bumiller, 1988; Fox, 1993; McBride, 1974; Merry, 1990). As Kropotkin put it a century ago, "we are so perverted by this existence under the ferrule of law . . . we shall lose all initiative, all habit of thinking for ourselves" (cited in Bradney, 1985, p. 143). Thus,

Many legal ways of trying to change society are unhelpful because they retain the domination of law. This confirms the power of experts who would know best how to run a society and so prevents any direct political action leading to the anarchist ideal of a self managed society. (Bankowski, 1983, p. 272)

Central to the anarchist position is a rejection of the widespread assumption that law is a sign of civilization's march up the evolutionary ladder. Given Hollywood's traditionally Hobbesian fictionalizations of so-called "primitive" societies, life without law becomes unimaginable. In stark contrast, however, is the anarchist view that law reflects the societal deterioration accompanying the displacement of workable long-standing customs by state legal systems (Diamond, 1974). As Black (1976) pointed out, "the earliest societies were anarchic" (p. 124) and "people have actually lived without law for nearly all of human history" (p. 74). In general, such non-law societies, "as Kropotkin predicted . . . do not reflect the coercive and divisive nature of written law" (Bradney, 1985, p. 144). Anarchist accounts of what is natural to the human species have abundant anthropological support (Barclay, 1982; Clastres, 1974/1977; Diamond, 1974). They echo Tapp's (1974) point that because "no community is truly lawless" (p. 53), the fiction of humankind's inherent lawlessness perpetuates an unnecessary law-and-order mentality. Not surprisingly, "anthropological evidence indicates that people have been hostile to law throughout most of human history" (Black, 1989, p. 82).

Despite the view of law as an oppressive creation of the political state, anarchist theory clearly does not reject social order. Much anarchist practice in the past century has aimed to create alternative forms of societal organization, frequently based on the establishment of decentralized, autonomous, voluntary communities (Ehrlich et al., 1979; Taylor, 1982, 1984). How that social order is to be created and maintained on a world-wide scale has not been sufficiently demonstrated. However, even when conceding that the solution might sometimes require some form of peer compulsion (as occurs in non-law societies), anarchists insist that a just society requires neither law nor the centralized state (see Holterman & van Meerseveen, 1984; Taylor, 1982).

Somewhat confusingly, even "law" is not totally rejected by a minority of self-described anarchists who define law broadly as "the norms concerning human behavior which in one way or another have an official status in society and which are formulated in such a way as to lay claim to a general validity" (van Maarseveen, 1984, p. 95). This definition is much vaguer than Black's (1976), who defined law as "governmental social control" (p. 2). Although some anarchist-approved norms might even resemble statutes (Descallar, 1984), any anarchist-approved law-like system would have to incorporate anarchist principles such as voluntariness, cooperative consensus-driven decisionmaking, equality rather than hierarchy, and decentralization (van Maarseveen, 1984). Such a system, even if called law, would be very different from law as we know it, both objectively and--of particular interest to psychological jurisprudence--subjectively.

up to top

The Equity-Law Distinction
To the degree that anarchism focuses our attention on the subjective experience of law, it is relevant to psychological jurisprudence. Looking at law through an anarchist lens can provide a context for interpreting a wide variety of phenomena. Of primary concern here is the anarchist assumption that, although law is dominant and efforts to achieve both individual autonomy and a psychological sense of community are everywhere hindered, the urge for communal individuality is so fundamental that the law has not been able to extinguish it. Thus, resistance to the rule of law is inevitable.

Also inevitable is widespread ambivalence stemming from the effort to meet conflicting needs in a society whose dominant institutions and ideology make that effort not only exceedingly difficult but somewhat suspect as well. If ambivalence about conflicting needs thus runs throughout our lives, it is not surprising that such ambivalence runs also through the law. The law, after all, must respond to human needs and aspirations, even if it seeks only to confine or smother them. Legal systems, thus, may contain remnants of earlier forms of social life that render legal control more palatable to the public. It may even be the case that legal elites "have certain scruples and are unable to eliminate justice from the law completely without the twinges of conscience" (Ellul, 1964, p. 295). Critical legal studies scholars have similarly argued that "legal doctrine contradicts itself because it rests upon competing views of human relations . . . . Individual autonomy and communal force, freedom and security, stand in constant opposition" (Beck, 1988, pp. 441-442).

To illustrate, I will speculate briefly about three areas where legal doctrine seems especially ambivalent from an anarchist perspective: (a) the distinction between law and equity, (b) jury nullification, and (c) the Ninth Amendment to the Constitution. These doctrines are ambivalent in the sense that they reflect conflict between opposing visions of the role that law should play in social life--or, as an anarchist might put it, conflict between law's domination and popular community resistance. All three are related to competing notions of justice, a common topic for psychologists interested in legal and political issues (e.g., Cohen, 1989; Cohen & Greenberg, 1982; Deutsch & Steil, 1988; Haney, 1991; Lerner, 1982; Prilleltensky, 1989; Tyler, 1990). They are also related more or less directly to the balance between individual autonomy and psychological sense of community.

Another thing these three doctrines have in common is that, to whatever extent they have been successful in countering law's dominance, they have been ridiculed as anachronistic, attacked as a burden on society, or simply ignored. These reactions are understandable from an anarchist perspective that interprets the doctrines as healthy (though ultimately failed) efforts by earlier generations to keep the law from going too far in the wrong direction. I don't mean to imply that these doctrines did in fact originate as self-conscious efforts to retain an anarchist component in the law. The historical origins and purposes of these principles are less relevant than the function they can serve today in organizing our thoughts on how best to approach psycholegal issues.

Law, Equity, and Justice
Psychologists are most likely to associate the term equity with the social psychological equity norm of distributive justice: the principle by which goods are distributed in proportion to inputs (of time, effort, money, etc.) in contrast to the competing principles of equality and need. An extensive literature examines the conditions under which each distributional norm is preferred and the relation of each norm to differing conceptions of justice (see Greenberg & Cohen, 1982). Although equity in the law has a different meaning, it is worth noting that our law generally endorses, and sometimes requires, distribution of goods by a capitalist version of the equity norm rather than by equality or need (often linked to socialism, communism, or anarchism).

Equity in the law retains the idea of justice or fairness, but in a less specific sense than its use in social psychology. It has several related meanings (Newman, 1965), defined generally by contrast to law. According to mainstream legal theory, law seeks to apply general rules or principles to particular cases. These rules or principles are assumed to be generally fair, resulting in reasonable outcomes in most cases. Occasionally, however, because of idiosyncratic case characteristics or other factors, application of the general rule results in an outcome that is clearly unfair. The strict view of the rule of law holds that these unfair results are merely the unfortunate price we pay for a system of law. Using equity principles common in a variety of legal systems, however, the legally required outcome can be set aside in order to arrive at a just outcome based on the individualized circumstances of the case. Thus, by acknowledging the legitimacy of equity, even if only grudgingly, the legal system incorporates within itself conflicting impulses toward rigid, formal technicalities on the one hand, and discretionary, substantive common sense on the other (E. P. Black, 1981; McDowell, 1982; Newman, 1965, 1967; Sampen, 1982).

This use of equity to counter law's rigidity is not a recent development. Historical treatments often begin with Aristotle. Based generally on conceptions of natural law,

the fundamental principles of equity in almost all legal systems exhibit a striking similarity. The most probable explanation of this phenomenon would seem to be that equity is founded on a sense of justice which is innate in human nature, however diverse may be the explanation of its presence. (Newman, 1965, p. 410)

To the degree that a legal system endorses equity, it recognizes the principle that community notions of fairness and discretionary justice may appropriately outweigh legal logic narrowly used in pursuit of other goals. As Newman (1965) noted, underlying equity is "the concept of human brotherhood from which arises the duty to observe scrupulous good faith in dealings between members of the social community, and the duty to share the burdens of unanticipated misfortune arising out of human relationships" (p. 411). Newman's view appears to coincide with the notion that equity represents the sense of community missing from a strict autonomy-based legal system. Similarly, Menkel-Meadow (1985) identified equity with a female relationship-based response to harsh male-created law; equity ultimately has less power, she speculated, in part because law is dominated by men.

For my purposes here, equity can usefully be characterized as the flexible balancing of autonomy and community. If equity stands for values such as individual and social justice, brotherhood, individualized consideration, flexibility, and reasonable accommodation to others' misfortune, then perhaps equity is the principle upon which to hang an anarchist-inspired rejection of legal domination. Such a view coincides with that of Hyde (1983), who distinguished between precise, rigid legal contracts that require details to be spelled out and adhered to within an adversarial system, and the more flexible "contracts of the heart" entered into by anarchists and others for whom coercive agreements are illegitimate.

It is not surprising--certainly not to an anarchist--that, despite occasional victories, the role of equity is constantly under attack. The common law long ago limited equity to particular remedies such as specific performance rather than the potentially more useful remedy of damages (Newman, 1965). The Nineteenth Century "transformation of American law" further eliminated equity principles not in keeping with commercial interests (Horwitz, 1977), and in 1937 the Federal Rules of Civil Procedure united law and equity despite predictions that control by law-focused judges would further erode equity principles (E. P. Black, 1981). Recent efforts to expand equity's reach to bring about social justice are frequently attacked. McDowell (1982), for example, sharply criticized the Warren Court for extending traditional equity principles beyond their restrictive common-law commercial base in order to mandate government action in civil rights cases. Perhaps equity's critics, generally supporters of a conservative status quo, understand that "Justice is not a thing to be grasped or fixed. If one pursues genuine justice . . . one never knows where one will end. A law created as a function of justice has something unpredictable in it which embarrasses the jurist" (Ellul, 1964, p. 292).

Jury Nullification
If equity represents a balancing of concerns for the individual and the community, then jury nullification represents one possible method of reaching an equitable balance. When jurors "nullify the law," they find a criminal defendant not guilty even when the facts, the law, and the judge's instructions clearly point to guilt. When they acquit a mercy killer, thus, they ignore the law, refusing to apply clear legal principles because of their sympathy for the defendant. Nullification is also common when jurors consider the penalty for a minor crime too severe, when they believe the law is wrong, or when, as in some political trials, they agree with the defendant's motives despite the judge's instructions that motives are irrelevant (Hans & Vidmar, 1986; Horowitz & Willging, 1991; Kamins, 1985). It is this last use that has been the most controversial, from the John Peter Zenger libel case in Colonial New York to the acquittal of anti-nuclear weapons protestors and other radical activists (e.g., Scott, 1989).

As the "conscience of the community," the jury can temper the harsh demands of the law with its assessment of community sentiment and concern for the individuals involved. It is in this sense that nullification is an equity-based corrective to the law. Not surprisingly, its use is unpopular with judges, who frequently say, and accurately understand, that nullification is a sign of anarchy. Thus, in most states judges intentionally limit nullification's potential by refusing to tell jurors they have the power to nullify.

It is true that nullification can lead to unjust outcomes, as in the American South when juries refused to convict Klan members for attacking blacks and Northern civil rights workers. Yet the power to nullify seems crucial to the jury's ability to go beyond the law in order to assess whether or not the defendant should be punished. Without the power to nullify, much of the jury's function (anarchist and otherwise) would be lost.

Further erosion in jury power would not be surprising. Judges already routinely lie by telling jurors they cannot let "sympathy" or "sentiment" interfere with following judicial instructions. In recent years, traditional rules requiring unanimous 12-person juries have been abandoned and "jury competence" is increasingly under attack (Hans & Vidmar, 1986; Horowitz & Willging, 1991). Although reversing these trends may not be possible, the consequences--especially a restricted role for community-based equity in political trials--should not be underestimated.

The Ninth Amendment
Although the Ninth Amendment to the Constitution is not generally spoken of as equity related, it does symbolize resistance to state control. The amendment holds that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." After being ignored for almost two centuries, the amendment was reborn when Justice Arthur Goldberg concluded that it guarantees a right to privacy that includes contraception (Griswold v. Connecticut, 1965). Since then, it has been cited in hundreds of cases and has received increasing scholarly consideration (Barnett, 1989). Legally, however, the amendment has been of little significance, having never been relied upon by a Supreme Court majority.

The Ninth Amendment originated in efforts to pass the Bill of Rights, which itself was required to mollify popular discontent with the Constitution (Barnett, 1989; M. N. Goodman, 1981; Patterson, 1955). It served to meet objections that listing specific rights in the Bill of Rights might imply that unlisted rights do not exist. Thus, the amendment ensured that particular rights not enumerated in the first eight amendments were still "retained by the people." It can be read broadly as a guarantee of certain fundamental rights self-evident under broad use of equity principles based on both natural rights, such as privacy (Patterson, 1955), and civil rights, in the sense of rights that come from being a member of society (M. N. Goodman, 1981).

This is not the only way the amendment can be read, as the legal debate makes clear (Barnett, 1989; Cooper, 1987; Silk, 1988; Wells, 1987). Although Goldberg and others would use it to reach particular ends justified by some form of natural rights theory, others argue that the amendment is meaningless, an ambiguous invitation to judicial activism and, of course, anarchy; Judge Robert Bork called it a "water blot" on the constitution (Silk, 1988, p. 37). Consequently, reliance on the amendment is typically shunned altogether, demonstrating perhaps an awareness of its vast potential for transforming the relationship of individuals to the state. As Patterson (1955) noted as part of his effort to resurrect the "forgotten" Ninth Amendment, "given its proper meaning and construction, [it] could be the most significant and forceful clause in the entire Constitution. . . . It is in fact the cornerstone of the Constitution," the clause "which makes a declaration of the sovereignty and dignity of the individual" (p. 1).

Since psychologists should be in the forefront of those who insist that the individual-state relationship should be transformed, they should claim their legitimate say in the debate over which rights should be recognized as crucial. An anarchist-influenced psychologist would insist that these rights include not only rights to individual autonomy (e.g., privacy) but also rights to a real community, perhaps including local control of community affairs and other rights dismissed by Patterson (1955) as "extreme socialism, such as the right to food, housing, medicine, etc." (p. 58).

A Task For Psychological Jurisprudence
Psychological jurisprudence can clarify how trends toward legalism, centralization, hierarchy, and authority are dangerous to human beings who would be better off in a vastly different society where needs for autonomy and a sense of community could be more easily met. We should demonstrate that looking to the law for justice is looking in the wrong place, because even though short-term victories may be obtained, as when appeals to equity are successful, in the long run the trend is in the other direction. Because law is not healthy for people, the psycholegal advocate can suggest that the law's "reasonable person" should reject the law's dominance over his or her life.

Psycholegal scholars who take anarchist theory as seriously as Sarason, Goodman, and others have urged will at least have to consider the degree to which law can be abolished rather than reformed. As Kropotkin put it, "No more laws! No more judges! Liberty, equality, and practical human sympathy are the only effectual barriers we can oppose to the anti-social instincts of certain among us" (Bradney, 1985, p. 141). The anarchist will recognize that law prevents social change through a variety of substantive, procedural, and ideological techniques in addition to the use of coercion (Fox, 1993). Only without the state can a restructured society based on decentralized autonomous communities allow the synthesis of individual autonomy and psychological sense of community. Thus, the pure anarchist will seek total abolition.

The less pure will seek less extensive legal change. For example, Black (1989) advocated "delegalization," which he acknowledged to be "a polite name for anarchism" (p. 81). The two differ, however, in that delegalization or "sociological anarchism is simply a self-conscious application of sociology to the reduction of law" (p. 81), a "gradualistic and cautiously experimental" (p. 82) attempt to selectively remove law from certain areas of life (such as victimless crimes) and to create alternatives based on mediation, arbitration, self-reliance, and mutual aid. Black's call parallels Goodman's (1966/1979) description of the "anarchist principle" as a "social-psychological hypothesis with obvious political implications" (p. 176).

In seeking alternatives to centralized state legal systems, psychological jurisprudence should pay special attention to the work of community psychologists whose emphasis on empowerment, decentralized solutions to community problems, and diversity (e.g., Heller, 1989; Rappaport, 1981, 1987) reflects Sarason's work on the psychological sense of community (1974) and the anarchist insight (1976/1982). We should also direct more attention to the way in which the legal system comes to be perceived as legitimate, particularly in terms of the creation of false consciousness, an incorrect belief that the law is fair despite "objectively poor outcomes" (Tyler, 1990, p. 111; see also Bumiller, 1988; Cohen, 1989; Deutsch & Steil, 1988; Fox, 1993; Haney, 1991; McBride, 1974; Prilleltensky, 1989, 1990a, 1990b).

The incorporation into psychological jurisprudence of the anarchist dual focus on individual autonomy and psychological sense of community can provide the field of psychology and law with a long-range ultimate goal, one to keep in mind even when we choose to lower our sights in the short term. The past president of the American Psychology-Law Society recently acknowledged that he is "not sure that the field of psychology and law is going anywhere" and that "to a great extent, psychologists of law still have blinders on when they look at law and the legal system" (Melton, 1991, p. 1). Although Melton did not propose anarchy as a solution, a critical anarchist perspective can be a valuable component of efforts to understand the subjective experience of law. Even more important, it can help our efforts to bring about social justice.

up to top

--------------------------------------------------------------------------------

References
Albee, G. W. (1982). Preventing psychopathology and promoting human potential. American Psychologist, 37, 1043-1050.

Bakan, D. (1966). The duality of human existence: An essay on psychology and religion. Chicago: Rand McNally.

Bankowski, Z. (1983). Anarchism, Marxism and the critique of law. In D. Sugarman (Ed.), Legality, ideology and the state (pp. 267-292). New York: Academic Press.

Barclay, H. (1982). People without government: An anthropology of anarchism. London: Kahn & Averill.

Barnett, R. E. (Ed.). (1989). The rights retained by the people: The history and meaning of the Ninth Amendment. Fairfax, VA: George Mason University.

Beck, R. (1988). The faith of the "Crits": Critical legal studies and human nature. Harvard Journal of Law & Public Policy, 11, 433-459.

Berman, H. J. (1974). The use of law to guide people to virtue: A comparison of Soviet and U.S. perspectives. In J. L. Tapp & F. J. Levine (Eds.), Law, justice, and the individual in society: Psychological and legal issues (pp. 75-84). New York: Holt, Rinehart.

Black, D. (1976). The behavior of law. New York: Academic Press.

Black, D. (1989). Sociological justice. New York: Oxford University Press.

Black, E. P. (1981, June). A brief for resurrection of equity jurisprudence. Michigan Bar Journal, pp. 381-389.

Bookchin, M. (1971). Post-scarcity anarchism. Palo Alto, CA: Ramparts Press.

Bookchin, M. (1982). The ecology of freedom. Palo Alto, CA: Ramparts Press.

Bradney, A. (1985). Taking law less seriously: An anarchist legal theory. Legal Studies, 5, 133-150.

Bumiller, K. (1988). The civil rights society: The social construction of victims. Baltimore: Johns Hopkins University.

Chomsky, N. (1973). For reasons of state. New York: Vintage.

Clastres, P. (1977). Society against the state: The leader as servant and the humane uses of power among the Indians of the Americas. (R. Hurley, Trans.). New York: Urizen Books. (Original work published 1974)

Cohen, R. L. (1989). Fabrications of justice. Social Justice Research, 3, 31-46.

Cohen, R. L., & Greenberg, J. (1982). The justice concept in social psychology. In J. Greenberg & R. L. Cohen (Eds.), Equity and justice in social behavior (pp. 1-41). New York: Academic Press.

Cooper, C. J. (1987). Limited government and individual liberty: The Ninth Amendment's forgotten lessons. Journal of Law and Politics, 4, 63-80.

Descallar, R. (1984). Anarchism and legal rules. In T. Holterman & H. van Maarseveen (Eds.), Law and anarchism (pp. 190-215). Montreal: Black Rose Books.

Deutsch, M., & Steil, J. M. (1988). Awakening the sense of injustice. Social Justice Research, 2, 3-23.

Diamond, S. (1974). In search of the primitive. New Brunswick, NJ: Transaction Books.

Ehrlich, H. J., Ehrlich, C., DeLeon, D., & Morris, G. (Eds.). (1979). Reinventing anarchy: What are anarchists thinking about these days? London: Routledge & Kegan Paul.

Ellul, J. (1964). The technological society. New York: Random House.

Fox, D. R. (1985). Psychology, ideology, utopia, and the commons. American Psychologist, 40, 48-58.

Fox, D. R. (1986a). Beyond individualism and centralization. American Psychologist, 41, 231-232.

Fox, D. R. (1986b). Four reasons for humanistic psychologists to advocate anarchism. Transformations, 2(1), 17-23.

Fox, D. R. (1991). Social science's limited role in resolving psycholegal social problems. Journal of Offender Rehabilitation, 17, 159-166.

Fox, D. R. (1993). Psychological jurisprudence and radical social change. American Psychologist.

Fromm, E. (1955). The sane society. New York: Holt, Rinehart.

Goodman, M. N. (1981). The Ninth Amendment: History, interpretation, and meaning. Smithtown, NY: Exposition Press.

Goodman, P. (1979). Reflections on the anarchist principle. In T. Stoehr (Ed.), Drawing the line: The political essays of Paul Goodman (pp. 176-177). New York: Dutton. (Original work published 1966)

Greenberg, J., & Cohen, R. L. (Eds.). (1982). Equity and justice in social behavior. New York: Academic Press.

Grisso, T. (1991). A developmental history of the American Psychology-Law Society. Law and Human Behavior, 15, 213-231.

Griswold v. Connecticut, 381 U.S. 479 (1965).

Haney, C. (1980). Psychological and legal change: On the limits of a factual jurisprudence. Law and Human Behavior, 4, 147-200.

Haney, C. (1991). The Fourteenth Amendment and symbolic legality: Let them eat due process. Law and Human Behavior, 15, 183-204.

Hans, V. P., & Vidmar, N. (1986). Judging the jury. New York: Plenum.

Heller, K. (1989). The return to community. American Journal of Community Psychology, 17, 1-15.

Holterman, T., & van Maarseveen, H. (Eds.). (1984). Law and anarchism. Montreal: Black Rose Books.

Horowitz, I. A., & Willging, T. E. (1991). Changing views of jury power: The nullification debate, 1787-1988. Law and Human Behavior, 15, 165-182.

Horwitz, M. (1977). The transformation of American law. Cambridge, MA: Harvard University Press.

Hyde, L. (1983). The gift: Imagination and the erotic life of property. New York: Vintage Books.

Kamins, B. (1985, August 20). Jury nullification: A rarity in criminal-law practice. New York Law Journal, pp. 1, 3.

Lerner, M. J. (1982). The justice motive in human relations and the economic model of man: A radical analysis of facts and fictions. In V. J. Derlega & J. Grzelak (Eds.), Cooperation and helping behavior: Theories and research (pp. 249-278). New York: Academic Press.

Maslow, A. H. (1971). The farther reaches of human nature. New York: Penguin.

McBride, W. L. (1974). An overview of future possibilities: Law unlimited? In J. R. Pennock & J. W. Chapman (Eds.), The limits of law: Nomos XV (pp. 28-38). New York: Lieber-Atherton.

McDowell, G. L. (1982). Equity and the constitution: The Supreme Court, equitable relief, and public policy. Chicago: University of Chicago Press.

Melton, G. B. (1987). Children, politics, and morality: The ethics of child advocacy. Journal of Clinical Child Psychology, 16, 357-367.

Melton, G. B. (1988). The significance of law in the everyday life of children and families. Georgia Law Review, 22, 851-895.

Melton, G. B. (1990). Law, science, and humanity: The normative foundation of social science in law. Law and Human Behavior, 14, 315-332.

Melton, G. B. (1991, Summer). President's column. American Psychology-Law Society News, pp. 1-3.

Melton, G. B. (1992). The law is a good thing (Psychology is, too): Human rights in psychological jurisprudence. Law and Human Behavior, 16, 381-398.

Melton, G. B., & Saks, M. J. (1986). The law as an instrument of socialization and social structure. In G. B. Melton (Ed.), The law as a behavioral instrument (pp. 235-277). Lincoln: University of Nebraska.

Menkel-Meadow, C. (1985). Portia in a different voice: Speculations on a women's lawyering process. Berkeley Women's Law Journal, 1, 39-63.

Newman, R. A. (1965). The place and function of pure equity in the structure of law. Hastings Law Journal, 16, 401-429.

Newman, R. A. (1967). The hidden equity: An analysis of the moral content of the principles of equity. Hastings Law Journal, 19, 147-

Patterson, B. B. (1955). The forgotten Ninth Amendment: A call for legislative and judicial recognition of rights under social conditions of today. Indianapolis: Bobbs-Merrill.

Prilleltensky, I. (1989). Psychology and the status quo. American Psychologist, 44, 795-802.

Prilleltensky, I. (1990a). Enhancing the social ethics of psychology: Toward a psychology at the service of social change. Canadian Psychology, 31(4), 310-319.

Prilleltensky, I. (1990b). On the social and political implications of cognitive psychology. Journal of Mind and Behavior, 11, 127-136.

Rappaport, J. (1981). In praise of paradox: A social policy of empowerment over protection. American Journal of Community Psychology, 9, 1-25.

Rappaport, J. (1987). Terms of empowerment/exemplars of prevention: Toward a theory of community psychology. American Journal of Community Psychology, 15, 121-144.

Ritter, A. (1980). Anarchism: A theoretical analysis. Cambridge, England: Allison & Busby.

Roesch, R., Golding, S. L., Hans, V. P., & Reppucci, N. D. (1991). Social science and the courts: the role of amicus curiae briefs. Law and Human Behavior, 15, 1-11.

Sampen, D. R. (1982, February). Law and equity, the right to a jury trial, and equal protection. Illinois Bar Journal, pp. 376-387.

Sampson, E. E. (1977). Psychology and the American ideal. Journal of Personality and Social Psychology, 35, 767-782.

Sampson, E. E. (1988). The debate on individualism: Indigenous psychologies of the individual and their role in personal and societal functioning. American Psychologist, 43, 15-22.

Sarason, S. B. (1974). The psychological sense of community: Prospects for a community psychology. San Francisco: Jossey-Bass.

Sarason, S. B. (1982). Community psychology and the anarchist insight. In S. B. Sarason, Psychology and social action: Selected papers (pp. 135-149). New York: Praeger. (Original work published 1976)

Scott, P. B. (1989). Jury nullification: An historical perspective on a modern debate. West Virginia Law Review, 91, 389-424.

Silk, R. H. (1988, January 18). Ninth Amendment: The key to the document as a charter of liberty. National Law Journal, p. 37.

Stoehr, T. (Ed.). (1979). Drawing the line: The political essays of Paul Goodman. New York: Dutton.

Tapp, J. L. (1974). The psychological limits of legality. In J. R. Pennock & J. W. Chapman (Eds.), The limits of law: Nomos XV (pp. 46-75). New York: Lieber-Atherton.

Taylor, M. J (1982). Community, anarchy, and liberty. Cambridge, England: Cambridge University Press.

Taylor, M. J. (1984). Social order without the state. In T. Holterman & H. van Maarseveen (Eds.), Law and anarchism (pp. 157-189). Montreal: Black Rose Books.

Toqueville, A. de (1973). Democracy in America. New York: Knopf. (Original work published 1831)

Tyler, T. R. (1990). Why people obey the law. New Haven: Yale University Press.

van Maarseveen, H. (1984). Anarchism and the theory of political law. In T. Holterman & H. van Maarseveen (Eds.), Law and anarchism (pp. 85-105). Montreal: Black Rose Books.

Wells, M. (1987). Means, ends and original intent: A response to Charles Cooper. Journal of Law and Politics, 4, 81-88.

Page updated January 6, 2002
fox.dennis@uis.edu
http://www.uis.edu/~fox/Welcome.html