The United States has become a legalistic society. It has always been more legalistic than some countries, for various reasons, but it’s become even more legalistic over time. Earlier last century, most problems weren’t dealt with through the legal system.
This is why it’s hard to compare present data to past data. A lot of criminal behavior never led people to the court system, much less prison. And even when people ended up in court, judges used to have more legal freedom to be lenient, unlike our present mandatory sentencing. This meant that there wasn’t much in the way of mass incarceration in the US until this past half century or so.
Take juvenile delinquents as a key example, far from a new problem. As urbanization took hold in the late 1800s and into the early Cold War, there was moral panic about teenagers being out of control, turning into criminals, and joining gangs. But most kids with problems didn’t end up facing a judge.
There were community institutions that figured out ways to deal with problems without recourse to legal punishment. Kids might get sent to family members who lived elsewhere, to a group home for delinquents, to reform school, etc. Or they might simply be made to do community service or pay restitution. But none of it would end up as a criminal record, likely not even getting reported in the local newspaper. It would have been dealt with quietly, informally, and privately.
There were cultural reasons at the time. It was assumed that kids weren’t fully responsible for their own behavior, as kids were treated as dependents of adults. The problems of kids was seen as the failure of parenting or social conditions. There was little tolerance for bad behavior in many ways at that time, but also society was much more forgiving. A kid would have to commit many major crimes before he would end up in a court and in jail.
The downside of this is that individuals had less rights, as people were seen more in social terms. It was easier to institutionalize people back then. Or if a girl got pregnant, her family would make sure she was sent somewhere else and not bring shame on the family. Juveniles were considered dependents until well into young adulthood. A 21 year old woman who was accused of prostitution, even if false, could find herself sent off to a group home for girls. Early 20th century childhood was highly protected and extended, although far different from present helicopter parenting.
Parents were considered legally and morally responsible for their kids, in a way that is not seen these days. Individual rights were still rather limited in the early 20th century. But there was also a sense of community responsibility for members of the community. It was accepted that social conditions shaped and influenced individuals. So, to change individual behavior, it was understood that social conditions needed to be changed for the individual.
In present American society, we see the past as socially oppressive and it was. We now put the individual before the community. We think it’s wrong to send juvenile delinquents off to reform schools, to separate the low IQ kids from other students, and to institutionalize the mentally ill. But this typically means we simply ignore problems.
The kid with severe autism in a normal classroom is not getting a good education or being prepared for adult life in any kind of way, although there is merit to his being socialized with his neurotypical peers. The mentally ill being homeless instead of in institutions is not exactly an improvement, even considering the problems of psychiatric institutions in the past. And the world is not a better place for our warehousing problematic people in prisons.
Our society has been pushed to an extreme. It would be nice to see more balance between rights of individuals and the responsibility of communities. But that isn’t possible if our main options are to either ignore problems or turn to the legal system. This is a difficult challenge, as increasing urbanization and industrialization have led to the breakdown of communities. There was a much stronger social fabric a century ago. It’s harder for us to turn to community solutions now since communities no longer function as they once did. And growing inequality has undermined the culture of trust that is necessary for well-functioning community.
Yet it’s obvious, according to polls, that most Americans realize that social problems require social solutions. But our political system hasn’t caught up with this social reality. Or rather the ruling class would rather not admit to it.
18 thoughts on “From Community to Legalism”
They are waging a war on youth. Actually this started with Gen X but has intensified dramatically.
Just don’t expect the Democrats to do anything about it.
Such things as the tough on crime, war on drugs, school to prison pipeline, mandatory sentencing, stop and frisk, and mass incarceration all either began with the arrival of GenX youth or was pushed to new extremes at that point. But there was a larger trend of worrying about children that began with the Lost Generation, the first generationional cohort that was majority urbanized, worked as child labor in factories and mines, and that participated in mass consumerism and modern pop culture.
Society at that time feared the Lost Generation even more than what was experienced later on with the paranoid fear-mongering and scapegoating of GenXers. It was a major motivation for creating universal and mandatory public education, as social control to babysit kids for working parents and to enculturate/indoctrinate/train the youth for mainstream society toward becoming worker-consumer-citizens.
Even organizations like the KKK weren’t divided only along racial lines but also ethnic and generational lines, since the early 20th century youth were largely either immigrants or children of immigrants, and the Klansmen who were mostly of an older generation didn’t like ethnic immigrants and what was called “hyphenated Americans”. This relates to why the KKK supported ending child labor and creating public schools, in order to force these troublesome youth off the streets and put under proper authority figures who would set them straight.
That is an interesting angle to consider. The KKK was one of the many civic institutions that formed the non-legal system of community norms and controls. Yet it was those Klansmen who pushed for a new legalistic society that, unknown to them, would make them obsolete. The Klan was a community organization, but lynchings and mob violence are unnecessary once a professional police force and mass incarceration is full established to enforce order.
Many civic institutions were straightforward community organizations. Even the Second Klan was mostly a volunteer organization that mostly raised funds for veterans, gave gifts to orphans, and helped old ladies across the road. A sort of racist Boy Scouts for older white Protestant men. These civic organizations were often tied to ethnicity, specific neighborhoods, churches, etc. They were a form of local self-governance, sometimes turning violent as with the KKK and Black Hand, but not in all or most cases. It was over time as these organizations stopped serving a community purpose that they increasingly turned to organized crime and political graft.
We have a society that destroys community and yet also idealizes community. GenXers were among the first to grow up when the last traces of old communities were disappearing. Many small towns had died during the previous generations or were in the process of dying as GenXers were growing up. The older generations not understanding how they had helped cause this destruction instead chose to blame the youth for the problems. But it seems unfair to blame those being raised as latchkey kids in stressful environments of worsening inequality, deindustrialization, etc along with toxic with heavy metals fucking up their brains. Older generations knew something had changed with growing urbanization and they needed a scapegoat.
Legalism, along with democratic proceduralism and liberal technocracy, is tied up with the whole issue of mass urbanization and WEIRD culture. It makes sense, considering US history. This country lacks much in the way of tradition. And what tradition has existed was quickly destroyed through the assimilationist model of nationalism. We lean so heavily on the legal system because we don’t have anything else to depend upon.
But this didn’t happen on accident. That legalistic tendency in this country was always dead set on destroying ethnic tradition and local community. Independent communities of people who have separate local identities and autonomous ability of self-governance are harder to control through a large, centralized government. This goes back to the pseudo-Federalist Constitution replacing the Anti-Federalist (AKA real Federalist) Articles of Confederation.
There are some specific examples of legalism having repurcussions on specific communities. Religious communities, many originally founded by ethnic immigrants, have often been the targets of oppressive laws. American individualism didn’t arise out of nowhere for it had to be legally enforced. A number of states have passed laws limiting the land that can be bought collectively, which makes it difficult for religious communities to do communal farming to support themselves. Also, a law was created that made it illegal for the celibate Shakers to adopt children and, since they depended on adoption to bring in a new generation, that law doomed their communities to slowly die out.
Legalism determines the winners and losers. That is often its intended purpose. Those who push specific laws are typically those who will benefit from them. It’s the reason why big biz ultimately loves big gov because they can lobby politicians to push laws that help big biz and in the process gain regulatory capture. Also, a legalistic society has high costs. Big biz and other wealthy interests have the advantage in being able to hire the best lawyers to navigate and manipulate the legal system, and to use that legal system to attack, punish, silence, or eliminate anyone who threatens and challenges their power.
Trump is the perfect case in point. For his entire life, he used the legal system to benefit himself and harm others (e.g., multiple bankruptcies to avoid paying people he owes money). Legalism makes possible a specific kind of entrenched plutocracy.
This isn’t to say that plutocracy wasn’t possible before. Obviously, plutocracy is quite old. But the nature of it has changed. Their used to be sense of noblesse oblige. That fascinates me about some of the American founders. There was corruption and abuse of power in the past as well, but those like George Washington took noblesse oblige extremely seriously and this attitude continued into the early 20th century with the two Roosevelt presidents. It was the idea that community was a balance of rights and responsibilities, specifically with power coming with not just privilege but also obligation.
Legalism changes all of this. In the past, issues of quo warranto were about tradition. Even law itself by way of common law was built on the tradition of centuries of precedent. But now law has become its own authority with no need of tradition whatsoever. For example, corporations are now considered legal persons because of the interpretation of a single court case about a century ago, defying all early American precedence and the entirety of Anglo-American tradition. The founding fathers are rolling over in their graves. No one fights a revolution for legalism. The American Revolution, if anything, was fighting against the legalism of British imperialism. All of the oppression American colonists experienced was perfectly legal, but it wasn’t traditional according to the rights of Englishmen. That was the conflict, between legalism and traditionalism.
Yet here we are. Americans have almost entirely forgotten the reason this country was founded.
IN other words, they’ve gone deeper into the hole so to speak.
Ironically, Europe and the “old world” have made a lot of social progress since the 1700s. Living standards in Western Europe, which many of the Americans have their background in and Nordic nations have outperformed the US. Even the UK, which although it has high inequality, still has its National Health Service, although it seems to be going down the dark path of the US.
I’ve often heard that Canada is the “control group” for the US – ex: what may have happened if the US had not separated violently from Britain. At the risk of offending the American people, the American Revolution may have been a mistake in the long run in that regard.
I’ve made that point about Canada and the American Revolution. The problem with revolutions is that they are massive gambles. When everything settles back into place, it’s rare that the best and most moral people gain power.
Shortly after the American Revolution, the Federalists had a coup that eliminated the revolutionary confederation and put the country on the near inevitable path of imperialism. It took a while for imperialism to take fully hold, but the bargain was already made when the Articles of Confederation were unconstitutionally and illegally overturned.
The Anti-Federalists attempted to constrain the new Constitution that reasserted centralized and concentrated power. Even so, they had mostly already lost the battle for control at that point. There was no way to put the genie back in the bottle. Local self-governance, as guaranteed by the Articles, had been eliminated or neutralized. The Federal government controlled both taxation and the military, removing all possibility of legal resistance.
The revolutionary spirit was still alive. Not that it took long when the Federalists brought their full force down upon it. The only reason the initial revolution succeeded was because it was being supported by the wealth, resources, and soldiers of the French, Dutch, etc. The remnants of revolution that followed no longer had any foreign assistance and so they were easily and quickly destroyed by the very government that took control of the post-revolutionary government.
It turns out, once that sad state of affairs took place, Americans would have been better off having remained in the British Empire. That said, non-Americans did benefit from the American Revolution. It forced the British Empire to commit to some democratic reforms out of fear of further revolution. And in other countries the people were inspired to overthrow oppressive monarchies and empires. It wasn’t a total loss, even if it ended up turning out badly as the US became yet another empire.
That is just the nature of revolutions. You win some and you lose some. And too often, even when you win you might still lose. Revolutions are never safe bets.
They are gambles.
But at some point the existing regime is just plain intolerable. Something had to happen and the ruling class was not going to give up power no matter what.
Trump really is a great example of legalism. What I mean by legalism isn’t only or even primarily about government. It’s more about the larger culture that shapes all aspects of a society, not just government. It used to be in countries like Japan (maybe it’s still the case) that business deals could be made based on the trust of a promise. Those involved gave their word and sealed it with a handshake (or maybe a bow in Japan). It was entirely informal in the legal sense. In most situations, courts and officials would never be directly involved.
It’s a culture of trust and a culture of honor. If someone failed to live up to their promise, they might not wait to be punished and instead would punish themselves, maybe through suicide. Or in other cultures of trust, punishment would be dealt with in private by beating the shit out of the transgressor or by their becoming a pariah in the community. But in the US, two businesses would make sure to have lawyers write up a detailed legal document. And someone like Trump will fuck over anyone to the degree he can get away with, which can be to a great degree with the highest paid lawyers in the world.
Neither trust nor honor is or ever can be a product of law, even as any well functioning legal system would require both trust and honor. Legalism is what results when a legal system lacks adequate trust and honor. The letter of the law snuffs out the spirit of the law. In a legalistic culture, there is no spirit of the law or spirit of anything else. It’s far from limited to government. I’d argue that the cause of this legalism originates outside of government. It’s just that we see the results most clearly in government because, with this kind of legalism, the worst elements of society gain control of the reins of power.
Here is another thought.
The legalism is rationalized because of a supposed need. The idea is people have to be controlled by laws and punished for failing to do so or else there will be chaos. But the fact of the matter is that the younger generations today have at least as low rates of violent crime, teen pregnancies, addiction, etc as my parents’ generation and far lower rates than my grandparents’ generation.
We are living in one of the most peaceful and orderly eras in world history. And research shows, for example, that such things as incarceration aren’t having any noticeable effect on crime rates. It appears that crime rates go up and down mostly for other reasons, such as lead toxicity and inequality, segregation and distrust (one research showed that segregation was a determining factor of whether diversity led to social problems or not).
The sad part is that the legalistic mindset can make things worse. By criminalizing drugs, drug use and drug addiction have increased. Just as happened with alcohol consumption and alcoholism under Prohibition. So, we demonize some group of people or an entire generation and, in doing so, we create the conditions that makes the problem worse. It becomes a self-fulfilling prophecy and that is used to further justify even an even greater legalistic response.
It probably will get worse.
The only question is, will it eventually reverse.
All of this points toward a theory about legalism. It’s the result and accomplice of increasingly expansive and centralized power.
That was the problem with the British Empire. It was becoming ever more legalistic. This is maybe inevitable once a country begins down the path of imperialism for there is a proliferation of issues involving distant occupied countries, colonies, territories etc along with conflicts and wars that are involved. The American colonists correctly complained that they were being treated as an occupied territory.
Interestingly, many Americans have begun complaining about authorities such as the police treating communities as occupied territories. What precisely has changed this past century is that the US has taken on the role of a global empire. We have more foreign entanglements than we can handle. Legalism is the attempt to do with these difficulties and complexities. Laws increase without ever decreasing. And in the process, the average citizen loses power and autonomy, rights and freedoms.
Americans have to finally decide whether or not they want to be subjects of an empire. Their American predecessors from centuries ago decided they didn’t want to be subjects of an empire. It’s a decision that has to be made again and again. If we accept imperialism, we are forced to also accept legalism that makes democracy impossible.
What exactly is this legalism? I was thinking that it probably isn’t the same as bureaucracy, although they would overlap. I could imagine legalistic societies that aren’t bureaucratic. But it’s true that the US has become more legalistic as it has become more bureaucratic.
Also, what is the relationship to community? I’m not sure that legalism is inevitably in opposition to community. The well functioning social democracies seem legalistic enough while avoiding imperialism and maintaining a stronger sense of community (e.g., culture of trust).
I’m not convinced that American legalism is normal. But it might be part of a specific tradition of legalism that was inherited from the British Empire. It would be useful to compare both imperialistic and non-imperialistic societies, with specific focus on legalism and related factors.
Oh and one more matter. The mainstream media is now attacking Jimmy Dore:
The CIA has had writers on the payroll and has infiltrated media going way back into the early Cold War. All of that is well documented. This is business as usual.
They don’t want anything but the “official” view after all.
The reality is that the US faces a far more serious problem than just Trump – it’s a legitimacy crisis.
Apparently even Bernie is getting frustrated right now with the Democrats.
The question is if he will take up Nick Brana’s offer to draft Bernie for a third party:
I think that we are at a point where there is no other opportunities for real change in the Democrats.
I don’t care about the Democratic Party at all. And I’m not sure I care all that much about Sanders either. I’d probably rather that he stay in the Democratic Party in order to push it as far left as it will go. That would then create the breathing room for actual leftist politics to operate. Or if he fails, maybe even allow for a third party challenger. Right now, he is offering a useful service in demonstrating the stark problems within the Democratic establishment and representing a threat to those in power. Shaking up the Democrats from within will help to weaken them, either to be taken over or to be defeated and maybe replaced
Sanders turning to a third party would only be useful in one possible way. He would have to be able to siphon off large numbers of supporters and voters. I’m not sure that can happen. He is more likely to find success by turning large numbers of partisans against the failed leadership, the kind of people who don’t want to leave the party no matter what. More than anything, I think the Democratic Party needs to be crippled, to such an extent that the political elite can no longer function and so they lose control. We first need to create instability and conflict. Then the corrupt professional politicians, in feeling ever more desperate, will turn on each other in a fight to remain relevant. Let them destroy themselves and then leftists can move in to finish off the wounded survivors.
We need to negate any hope for the Democratic establishment to make any claims for a moderate centrism. The conflict must be provoked so that they are forced to take sides or rather forced to show the side they’ve already taken. What needs to be emphasized is how on many issues the Clinton New Democrats have been as far right and sometimes further right than Republicans. We need to keep reminding people that Trump won largely because he pushed progressive populism using rhetoric often lifted straight from FDR’s New Deal, the very New Deal that was betrayed by the Clintons and their cronies.
Basically, Sanders needs to hold the line. He is an old guy. This might be his last major battle and he has to be willing to sacrifice his career for the greater cause.
He is dug into a well protected position within enemy territory. He needs to fortify that position and defeat the enemy through attrition. All he has to do is keep the enemy cornered so that they can’t escape or gain reinforcements. This will buy time for the political left to amass an army and organize.
Sanders must draw a line in the sand. And then not let anyone pass beyond. He must stand guard as the furthest right boundary of viable Democratic politics. On many major issues, he represents the actual moderate centrism of the majority of Americans across the political spectrum. Where he stands is the center. He must mark that center and hold it.
This is the fight. That boundary is the battleground. It’s a struggle for power between the majority public and the minority elite. It is the only fight that matters.
I thought of a different kind of example, although ideologically theoretical. Anarcho-capitalists have a particular brand of utopianism. For them, absolute dominance of legalism would be the ideal society. They’d love to see privatized courts, lawyers, and agreements replace all other forms of government, laws, police, democratic politics, community, etc. It would be pure legalism, dependent on nothing else and defining all else.
It’s one of the most utopian of ideologies ever imagined. I’m fairly sure that legalism pushed to its furthest extent would simply collapse in upon itself. Or else it would become something else. Either way, it couldn’t function for long, assuming it could be implemented even under the perfect conditions.
It’s strange that anyone thinks they’d want to live in such a society. It would be a highly oppressive society. Every aspect of one’s life would be determined and controlled by endless, detailed legal contracts. It would be such a convoluted society that one would constantly find oneself breaking something within one contract or another. You’d have to read through thousands of contracts before getting out of bed in the morning, just to make sure that some horrible consequence wouldn’t follow if you did the wrong thing in the wrong way or at the wrong time.
It would make people paranoid. It would be the ultimate culture of mistrust. By definition, absolute legalism would mean absolute lack of trust. Nothing could be taken on trust because legal contracts would supersede all else. One’s promises, friendship, reputation, and honor would mean nothing… unless it was detailed in a legal contract.