As discussed more extensively elsewhere on this blog, Mitchell Callan & Aaron Kay’s article makes a strong argument that ‘the law shapes social reality…by implicitly fostering the assumptions that people are self-interested, competitive and untrustworthy.’ Callan & Kay, understandably, spend relatively little time, within the article, examining why the law carries with it such associations. To the extent that they form hypotheses, they are primarily based on the adversarial system and its depictions in culture. A supplemental explanation, however, may also be found in the development of private law during the 19th century.
During this period, increasingly formal legal thinking developed an intricate theory based on the law’s creation of private spheres for each human actor. The law forbid behaviors that may infringe on the will of others, but it refused to create affirmative duties which would impose obligations on the private actions of individuals. For instance, in 1900, a person may see a piano falling out of a window towards an unaware victim walking below. A simple shout would save the victim below, but, if the person chose not to shout, the law would refuse to impose any criminal or civil liability. This version of the law matches, to some extent, Callan & Kay’s description of law as reinforcing a conception of individuals as ‘competitive’ and ‘self-interested.’ A full explication of the development of legal thought during the 19th century has been made in a variety of forms, including Morton Horowitz’s influential book: Transformations in American Law 1780-1860. A particularly influential version was made by Duncan Kennedy in his 1976 article, Form and Substance in Private Law Adjudication. A brief analysis of the interesting links between Callan & Kay’s thesis of legal socialization and Kennedy’s work follows below. Kennedy finds two dominant paradigms at work in the development of private law; individualism and altruism. The concept of individualism drove the development of law during the 19th century. Kennedy writes that a core conception and justification of individualism as a driving normative value in law’s development is ‘the relative inability of the legal system to alter human nature. Individualism argues that an attempt to legislate some form of morality will lead to tyranny, and therefore ‘immorality of law is therefore the necessary price for avoiding the greater immoralities that would result from trying to make the law moral.’ However, Callan & Kay’s research shows that the law, in a variety of subconscious forms, can alter a person’s behavior. Therefore law, constructed in the individualist image, can further reinforce values that an individualistic proponent would not actually advocate. As Kennedy continues ‘one can favor an individualist legal system while remaining opposed to the behavior that such a system permits or even encourages.’ Callan & Kay’s research provides quantitative support for the notion that an individualist legal system encourages behavior that those who constructed it would oppose.
For instance, a notable Contracts case is the traditional staple of Mills v. Wyman. Mills, an innkeeper, cared for Wyman’s adult son. After the death of Wyman’s son, Wyman promised to pay Mills the cost of the care. Subsequently, Wyman retracted his promise. The promise was ruled unenforceable by the Massachusetts court, which found that a moral obligation was not sufficient to make a promise legally binding. The decision is filled with rhetoric that morally condemns Mills behavior while refusing to legally require payment. Whatever the rhetoric may be, the decision itself reinforces a notion of individuals as untrustworthy, and the law as willing to condone (even as it rhetorically condemns) their actions. The decision reinforces the overall process of legal socialization and makes one wonder what the next innkeeper is to do when asked to care for a penniless person.
The combined force of Kennedy and Callan & Kay’s work raises questions about how the law may be changed to reflect a conception of the individual more in keeping with a dream of ourselves, rather than a nightmare. Legal socialization reinforces a set of norms created by the individualist legal formalism of the 19th century; together, these forces may act as a block on legal reform that postulates a different version of the law than that which we have created up to this point. If we don’t expect the law to encourage people to be altruistic, how effectively can we make changes in the law that advocate that behavior? Even for one inclined towards individualism, a cruel irony is created as the law perpetuates and encourages behavior and values which the individualist does not subscribe to. As Kennedy writes, elaborating Holmes’ conception of the ‘bad man’, ‘the essence of individualist certainty-through-rules is that because it identifies for the bad man the precise limits of toleration for his badness, it authorizes him to hew as close as he can to those limits.’ The potential tragedy that legal socialization exposes is that by defining the limits (and limitations) of the law’s restrictions on the ‘bad man’, the law encourages each of us to be a little more bad ourselves.