Passing through the door: social movement literature and legal scholarship.

• Author: Rubin, Edward L.

During the past three decades, the study of social movements has become a major area of social science research in both America and Continental Europe. As is often true, a different approach has been adopted in these two places, so that, in effect, there are two separate literatures on the subject. But the gap between American and Continental social movement literature is now widely recognized by sociologists and political scientists within the field, and, having been so noted, is being overcome by scholars who recognize the value to be gained from incorporating differing perspectives in their own research. (1) The subject matter of this Article is another gap, one that has been much less widely noted and less often bridged. This is the gap between legal scholarship and the social movement literature as a whole. As discussed below in Part I, these two fields display considerable overlap in both their subject matter and their methodology; they study the same phenomena and draw on the same theoretical sources in doing so. Yet, they communicate only fitfully, if at all, with one another. The social movement literature, although it pays some attention to law, makes little use of legal scholarship. In turn, and of more direct concern for present purposes, legal scholars seem largely oblivious to the extensive social science literature on social movements. Apparently, the narrow university paths that separate law schools from social science buildings are harder to cross than the Atlantic Ocean; the language barrier between legal and social science discourse is higher than the one between English and French, German or Italian; and the sense of foreignness that afflicts legal scholars and social scientists who belong to the same university, share the same political views, and live in the same neighborhoods is greater than that which divides inhabitants of different continents.

Part of this divergence between legal and social movements scholarship can be attributed to methodology; while the two fields draw on the same sources, they make use of them in distinctly different ways. A more important source of the divergence, however, is subject matter. While social movement and legal scholars study essentially the same phenomena, they restrict themselves to different parts of these phenomena. In particular, and as Part I discusses, social movement scholars study the way these movements are formed, organized, and operated, while legal scholars study the movements' specific effect on the decisions of courts, legislatures, and administrative agencies. Each field has its own reasons for the emphasis that it adopts. In the case of legal scholarship, the reasons are its essentially prescriptive stance and, more importantly, its unity of discourse with the judiciary, which creates a mentality that tends to assimilate the style of legal analysis to arguments before a court. The result, as Part III discusses, is that legal scholarship observes and analyzes the influence and impact of social movements, but tends to ignore their origins. The theme of this Article, and this Symposium, is that legal scholars have much to gain from broadening their perspective and making contact with the social movements literature. They would be able to improve their descriptions of the legal system, and would perceive additional distinctions that would enhance their prescriptions as well. Part IV shows that they would acquire, in addition, a new approach for understanding the origin and meaning of basic legal concepts.

No effort will be made in this Article to define the term "social movement," any more than to define the term "law." The topic of the Article is not social movements as such, but the field of social movements scholarship. That field, being a self-conscious enterprise, effectively defines itself, just as legal scholarship defines itself without an agreed-upon definition of law. For purposes of clarification, however, the concept of a social movement can be demarcated by referring to the familiar idea that society consists of three spheres--the political, the economic, and the social. (2) Each is capable of generating programmatic initiatives of various sorts. The political sphere produces legislation, court decisions, and actions by administrative agencies. The economic sphere generates goods and services, typically through the modality of profit-making enterprises. The social sphere, also described as civil society, is the source of religious activity, fraternal organizations, and a variety of fads and fashions. Social movements belong to this third sphere of society. They can be regarded as coordinated, ideologically based efforts that originate within the social sphere or, in other words, as a self-conscious effort by previously unorganized individuals resulting in collective action. (3)

The prevailing view is that organizations or political parties are not the same as social movements. Rather, social movements are regarded as consisting of more diffuse agglomerations of individuals within civil society who are linked together by ideology, beliefs, or collective identities. Organizations may catalyze the creation of these agglomerations, or may be generated by them; in most cases, the relationship is probably co-causal. (4) On occasion, these agglomerations will even generate a political party, although they are more likely to ally themselves with an existing one. (5) The movement itself exists in the social sphere, however, while the organizations that created it or were created by it bridge the social and political spheres, translating the beliefs of the movement's participants into political action. Of course, the boundary between the spheres is entirely permeable, and it may be difficult to assign specific actions or events to one side or the other. The entire model is best treated as a heuristic, as a device for identifying and conceptualizing complex sociopolitical processes, rather than as a definitive explanation. (6)

1. OVERLAPS

   1. Subject Matter

      One event that catalyzed the modern social movement literature, in both the United States and Continental Europe, was the advent of environmentalism. (7) Here was a rapid shift in social attitudes, wide-spread in its appeal, sustained in its operation, and profound in its effects, that contradicted all existing theories on the causes of mass movements. It neither seemed to arise from social frustration, dislocation, or anomie, nor express itself as either a series of spontaneous popular uprisings or as a blind obedience to demagoguery, (8) nor constitute an emergent collective behavior resulting from individual reactions. (9) Indeed, the movement was remarkable for the diffuse and remote character of the concerns that animated its participants, for the lack of any particularized economic interests in its basic goals, and for the sophisticated organizational efforts that sustained it. For some reason, large numbers of people who were otherwise indistinguishable from the general population were moved to political action by incremental deterioration of the air that everybody breathed and the water everybody drank, the degradation of wilderness areas that they would never visit, and by the extinction in the wild of species that they would see only in zoos or picture books. By some mechanism, the environmental movement was able to generate stable, effective organizations and public demonstrations that were coordinated, well-managed, nonviolent affairs.

      The environmental movement was not unique in this respect. Simultaneously, or within a short period of time, the antinuclear and peace movements, (10) the animal rights movement, (11) the prisoners' rights movement, (12) the anti-abortion and pro-choice movements, (13) the direct action movement, (14) and the resurgent human rights movement (15) all displayed these same distinctive and unexpected characteristics. These anomalous phenomena, moreover, provided social scientists with a different perspective on other movements that had previously been understood in more conventional ways. The consumer movement, the welfare rights movement, the farm worker movement, the civil rights, women's rights, and gay rights movements could easily have all been regarded as expressions of direct self-interest, and as spontaneous, emotive uprisings. Having grappled with the ideological and well-organized character of environmentalism and its compatriots, however, social scientists were able to perceive the ideology and organization that motivated the members of these more familiar efforts. (16) Most simply, they recognized that the consumer and welfare rights movements were often spearheaded by middle-class individuals who were not the movements' principal beneficiaries, that the civil rights movement included many whites, the women's movement many men, and the gay rights movement many straights. At a deeper level, they perceived, and were willing to take seriously, the desire of these movements to effect larger social transformations that were more closely linked to their members' beliefs than to their interests or immediate dissatisfactions. (17)

      The overlap between the subject matter of this social movement literature and legal scholarship is immediately apparent, and was perceptively described in Joel Handler's 1978 book, Social Movements and the Legal System. (18) Handler discusses four major areas: environmentalism; consumer protection; civil rights; and social welfare. All these areas featured social movements that included, as a central aspect of their program, the creation of new laws or the reform of existing ones. These new laws and law revisions, moreover, had direct efFects on the legal academy. The laws that were direct creations of the environmental movement, for example, became the subject of a new, highly popular course, and of a burgeoning field of scholarship. (19) Handler's other areas of interest were also fecund sources of...