Law and Social Control

-- By KhurramDara - 15 Feb 2012

Civil Rights and Behavior

One theme we’ve discussed in our class thus far has been the view of the law as a form of social control. Eben has said that law is a weak form of social control. I want to discuss two examples in which law does not seem to have a strong affect on behavior, and discuss what functionality the law has.

Consider the civil rights movement, particularly for blacks in America. What role has the law played? There have been a total of eight federal civil rights laws that were passed dating as far back as 1866 and as recently as 1991. State governments have passed their own versions of these civil rights acts. And there have been several Supreme Court cases that upheld these laws and struck down other laws that sought to racially discriminate.

The second federal civil rights act in 1871, known as the Ku Klux Klan act, prohibited ethnic violence towards blacks. Since the acts passage there were over 3,000 blacks lynched. So several other civil rights acts were passed subsequent to 1871. And after those acts were passed, we saw voter disenfranchisement based on race, along with segregation in schools and other public places. So more laws were passed and more court cases decided. Despite this, in 1991 Rodney King was beat nearly to death at the hands of the Los Angeles police.

It seems that what protects racial violence and discrimination is not our laws, it’s our collective mindset, a societal belief that we should not treat people differently because of their race. The American youth started to interact, study, and socialize with one another. They didn’t need a law or class to tell them that black people were no less deserving of rights than white people. They had lived with them, experienced life with them, and knew that in many respects, they shared a lot in common.

I don't know how you come to the historical conclusion that you come to. You don't show us: you merely tell the story leaving out the parts that might have resulted in a different conclusion. A summary of the history of the civil rights struggle that leaves out the Thirteenth, Fourteenth and Fifteenth Amendments, the 1876 election, the Civil Rights Cases, Plessy, Charles Hamilton Houston, Thurgood Marshall, the Second World War, Brown, Rosa Parks, Martin King, the Voting Rights Act, the Watts riots, Richard Nixon's "Southern Strategy," and so on and so on is probably not going to be complete enough to judge from.

White supremacy in America from about 1650 about 1968 was supported by de jure racial segregation. That makes the role of the law in maintaining and then weakening its grip a different question than the general one of whether law is a weak form of social control or (more pertinently) whether legal remedies are generally useful in abating social tensions across ethnic, class or religious divisions.

First Amendment Protections and Behavior

In the ten years since 9/11 I’ve watched organization after organization in the American Muslim community look to laws and the legal system to control social attitudes about Muslims in America. Thanks to the change our societal mindset that took place during the civil rights movement, the harassment and bigotry faced by American Muslims is not even remotely as severe as what other groups throughout American history have faced.

I don't think the measurement of "severity," is the most useful one. Social situations have historical and psychological contexts, as well as sociological and legal ones. What is happening to Muslims in the US is tied more deeply to what has happened, is happening and internally tends to happen within Christian and Islamic societies and people than to what has happened or is happening or internally tends to happen between black and white people in the Unites State.

This softer bigotry has taken various forms. For example, when Barack Obama was running for president in 2008, he was accused of being Muslim. He wasn’t accused of being linked to a radical or terrorist group, he accused simply of being Muslim, as if there were something inherently wrong with being a member of the Islamic faith.

He was accused of both. The opposing candidate publicly rejected efforts by voters to describe Obama as a Muslim in his hearing. But he made no effort to stop his running mate from repeatedly saying that Obama "palled around with terrorists." I'm not sure why this matters, but if it does we should be accurate about it.

A mosque construction site in Tennessee was set ablaze last year. In August a Manhattan taxi driver was stabbed, allegedly because he was Muslim.

We could find many more examples of this form of criminal violence directed against Muslims, qua Muslims. But burnings and other criminal desecrations of churches and synagogues also occur in the US, every year. And, unfortunately, there are very few ways, in a large, highly-armed and rather violent society to determine the social meaning of isolated acts of murder. So interpreting these facts as presented is not a particularly promising line of persuasion for any proposition.

The premier Muslim advocacy organization, the Council on American Islamic Relations, has filed lawsuit upon lawsuit for every incidence of harassment or violence. They point to the law, not a statute or common law principle, but a fundamental right in the First Amendment, which protects freedom of religion.

This would make sense as a strategy in the event of the passage of state laws that impeded Muslim freedom of worship or religious practice for non-secular reasons. But it isn't the legal response appropriate to mosque burnings or hate crimes. I think you're probably imprecisely characterizing the precise legal positions taken and actions brought in the specific situations described. That will confuse a reader with some legal knowledge but no specific knowledge about these matters.

As an American Muslim, I can see how law is not the most preferable form of social control. A far better approach for the Muslim community would be to mirror some of the factors that led to successful integration and reduced discrimination towards blacks in America. Building personal connections and social bonds with other Americans would probably be a stronger antidote to negative stereotypes. How likely is it for a man who has a positive working relationship with a Muslim, or even a friendship with one, to protest a Muslim’s ability to practice their faith freely? A societal change in mindset is need for actual change to take place.

Is this actually the historical and social lesson concerning the treatment of Muslims living in non-Islamic society? Is it how Indian society works? How Yugoslavia worked? How Russians and Caucasian Muslims or Turks and Greeks have interacted over centuries? Or is this a point about American society that draws an exception from the usual condition of Muslims in the Dar al-Harb?

Much like Arnold highlights the irrationality of politics, there's a certain irrationality in some of the fear that exists about Muslims in America. For example, fact that most would fear bearded men, wearing traditional Islamic garb with a Qur'an in hand at the airport, when in reality every single one of the hijackers on 9/11 was clean-shaven or with minimal facial hair, wearing jeans or khakis and button down shirts. Educating people about the flaws and inaccuracies of negative stereotypes would be the rational response, but of course, you can't reason with someone who can't reason himself.

Which is all of us. Because our rational processes are the secondary rather than primary forces in our minds. Secular people who have absorbed the ideas we call "Freud" know this. But the very idea of submission to the law of an external all-powerful God is another recognition of the same proposition, whether the God so described exists or not. No accurate psychology, religious or secular, would lead us to expect secondary processes to be all we need to concern ourselves with on such an inquiry, or to affect such a change in society as your description implies.

Social control succeeds by appealing to the non-rational, unconscious motives of the human animal. Law is weak because it does so weakly. The creation of fear of Muslims in American society was deliberate, careful, rational and purposive, intended to manipulate people to create irresistible power. It is slowly and intentionally turning the US from a free society into a technologically-enabled despotism. But it was also an unconscious process, spreading outward from hidden roots in an increasingly ill-educated Christian society losing its faith.

Utility of the Law as a Form of Social Control

If law is not a powerful form of social control, than why do we spend so much time and energy drafting penal codes, writing legislation, and interpreting the Constitution? Wouldn’t we be better off using some other form social control?

Not if the weakness of the form of control is part of its utility and importance.

Is the reason we don’t murder children or use crystal meth because of laws the tell us not to? If not, then why have laws at all? Some would probably say that the reason we have laws is for the few people that do engage in activities like murder and drug use. Deterrence is often argued, yet many felons, for example, are repeat offenders. A report from the Bureau of Justice statistics found that 61% of felony defendants had at least one prior conviction.

So it would make sense to ask the same question without limiting yourself to a view of human psychology that ignores everything below the surface.

While laws don’t appear to be a strong form of social control (in that it is unclear whether laws actually prevent crimes from being committed) it may have some utility. If one has the resources, short term relief can be granted. An injunction or a court order will meet an objective in the short term. But it must be met with other forms of social control. With a Muslim woman who wears a hijab (headscarf), for example, winning an employment discrimination lawsuit will help the individual who was discriminated against. But does it actually change the perceptions the employer has of Muslims? Social pressures (a friend who is Muslim, a neighbor who is Muslim) are likely to result in more lasting change.

This last point, I recognize, is for you—in the world of present politics—the reason all the rest of the analysis has been written. Because politics is about appealing to non-rational elements in the human mind, this is—as we have discussed before—an approach that it makes sense for you to take. But considered as a form of rational argument, as you present it here, it's completely unestablished. Events in Toulouse over the past several weeks, and their effects on French society at large, would give a different turn to the analysis. And the much more serious and complex laboratory constructed in India over the last quarter-millennium would yield different, more uncertain, more appalling and more fascinating propositions. Once again, it makes a good deal of difference whether this is an argument based on another form of "American exceptionalism," or a general social claim.