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FOREWORD
- University of Michigan Press
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FOREWORD Like much good social theory, the arguments in this volume were born in the crucible of pressing events of a particular time and place. The book was conceived at the University of Wisconsin in the late 1960s, when Scheingold was inside Bascom Hall lecturing on constitutional rights and liberties, while outside, on the mall, National Guard troops were dispensing tear gas to disperse chanting students demanding their rights. These students had not heard and would not have listened to Scheingold’s lectures about rights that had been realized by the Constitution and the Supreme Court. Increasingly his lectures fell on deaf ears, as his students chose to join those outside. Eventually, these distractions— National Guard troops, tear gas, student chants, and mounting skepticism—led Scheingold to rethink conventional understandings of legal rights and to explore the myths of rights and the politics of rights. He turned away from the words of the Constitution and the courts to explore what was in the minds of the chanting students. Thus was The Politics of Rights conceived. And by this move, Scheingold relocated the study of law in American political science. The book opens boldly: The law is real, but it is also a figment of our imaginations. Like all fundamental social institutions it casts a shadow of popular belief that may ultimately be more significant, albeit more difficult to comprehend, than the authorities, rules, and penalties that we ordinarily associate with law. What then follows is an extended essay elaborating on this insight, exploring that figment of our imaginations and the long shadow it casts. Divided into two parts, the book explores the myth of law, the symbolic, ideological, and rhetorical features of legal rights, and the politics of law, the law as resource and the appeal to rights as catalysts for political mobilization. This combination was—and remains—stunning. No one until then had formulated a robust cultural analysis of American law in such an eloquent and sustained manner. A number of earlier commentators had explored aspects of Scheingold’s complex argument before. Thurman Arnold’s brilliant and quirky book The Symbols of Government, initially published in 1935, touched on some of the themes developed more systematically by Scheingold. Murray Edelman, Scheingold’s colleague at Wisconsin, published The Symbolic Uses of Politics in 1964. It provides a penetrating analysis of how political language offers soothing condensation symbols that foster public quiescence. No doubt Scheingold was heavily influenced by this path-breaking book, though it differs substantially from Edelman’s analysis in that its focus is on the distinct and powerful appeal of “rights,” both as myth and as a political resource. Shortly after publication of The Politics of Rights, E. P. Thompson, in his great 1975 study, Whigs and Hunters, showed how the landed elite constructed the criminal in order to dominate the working class, but nevertheless concluded in something of a coda that this experience instilled a belief in the efficacy of the “rights of Englishmen” even as it was used to repress them. But before the Politics of Rights, no one, at least in American sociolegal scholarship, had offered such a thorough and deep analysis of law as ideology, law as myth, and law as politics. The closest work in this vein came later. The Critical Legal Studies Movement was founded several years after publication of The Politics of Rights. This movement could greatly have profited from careful consideration of Scheingold’s analysis, since he anchors his work in core concerns of political psychology and a deeply rooted sense of American history. In contrast, Critical Legal Studies began and remained largely a reaction to conventional doctrinal legal scholarship, and soon withered away xii FOREWORD as a distinct form of analysis once this conventional approach made some concessions to the Crits. A distinct and original book, the Politics of Rights draws on and synthesizes several quite different traditions. Indeed it was Scheingold’s luck and brilliance, and the reader’s good fortune, that he read so widely and so diversely. A small but marked tradition in political psychology appears to have influenced him, though perhaps by osmosis rather than any direct lineage. As already noted, his colleague Murray Edelman had begun his explorations of the symbolic uses of politics in the 1960s, and his 1964 book appears to have influenced Scheingold. But Edelman’s work is anchored in a tradition of political psychology that does not focus on law and especially rights. Similarly, Harold Lasswell’s and others’ pioneering...