Friday, March 01, 2024

Ida B. Wells: A Plea for Law and Society Canonization

Tom Ginsburg

The Law and Society movement, as one of its major figures has put it, is “the scholarly enterprise that explains or describes legal phenomena in social terms.” Intellectual histories of the movement, which formed in the 1960s, typically begin with the Legal Realists of the 1920s and 1930s, and their argument that the content of the law was less determinate than had been assumed by legal formalists. The realists in turn reached back to Oliver Wendell Holmes and his pragmatist critique of formalism. If law was nothing more than a prediction of what the courts would do, as Holmes famously put it, and if those courts were influenced by extra-legal factors, then it became important to understand how societal factors impacted law in a systematic way. (The deeper intellectual origins of this approach go back to Henry Sumner Maine’s Ancient Law of 1861, and Montesquieu before him.)   

Though famous for his call for empiricism, Holmes was not an empirical scholar himself, and so when we look for early studies that deploy the empirical approach, we see very few. It is only with the consolidation of social science disciplines in the first decades of the 20th century that we really see systematic exploration begin. The famous Brandeis brief appears around that time, in such cases as Muller v. Oregon (1908). 

 I want to make the case for Ida B. Wells, who died in Chicago 93 years ago this month, as a founding intellectual mother of this approach. Wells, famous as journalist and activist who battled sexism and racism, did more than any other individual to expose and investigate the practice of lynching in the United States. This work began with her newspaper, The Free Speech, which was destroyed by a mob in 1892 and led her to flee to Chicago. Here she continued her work and career, becoming a national figure and participating in the formation of the National Afro-American Council in 1898. The Anti-Lynching Bureau of this body, which she chaired for a time, undertook the systematic documentation of lynching. 

The key essay for my purpose is her 1900 speech, Lynch Law in America, which embodies many of the qualities that are later consolidated in the Law and Society approach. Wells begins by identifying mob justice as an “unwritten law” that bypasses the formal legal system. She traces the history of the practice as originating on the frontier, and refers to Judge Lynch, who is thought by some to have given the practice its name in summary trials of loyalists in the Revolutionary War. She then goes on to explain how the practice consolidated in the Jim Crow South. Wells’ short essay includes statistics, documenting the continuity of the practice over time, and taking 1892 as the year for focus. She identifies the number of lynchings by state, documenting the spread of the practice outside the South. She documents the accusation that prompted the lynching, with allegations of sexual assault and murder being the most common categories. There are some statistics by race—roughly 2/3 were Black. 

Wells' Lynch Law is an early example of a “gap study,” the systematic exploration of the deep division between the law on the books and the law in action. Critically, Wells does not stop with a demonstration of evidence. She goes on to make a normative argument for the application of the law: all that Black people want, she says “is justice–a fair and impartial trial in the courts of the country.” In the normative part of her argument, she documents the reparations paid to foreign governments for the victims of lynchings, which was required under international law. Appealing to self-interest and national pride, hers is a systematic call for reform. 

In this short work, we see all the hallmarks of later Law and Society scholarship. First, it is focused quite directly on the law in action, suggesting that the true functional law is Lynch’s rather than that of the United States. As Susan Silbey put it, “law and society scholars often locate themselves at the margins of traditional legal scholarship, looking at what law does rather than what law ought to do.” Second, it embodies Philip Selznick’s ideal of utilizing the tools of social science for normative ends. Selznick’s commitments were to a bounded positivism, in which social science was not value free. Values and ideals were both subject to inquiry but also informed by natural law ideas. Wells was not motivated to her inquiry for the sake of pure knowledge. Instead, positive social scientific data was used to make an argument in service of justice. 

In their teaching work, The Canon of American Legal Thought, David Kennedy and William Fisher provide a history of American legal reasoning, beginning, appropriately, with Holmes’ 1897 essay “The Path of the Law.” The contributions of the Law and Society movement begin with Stewart Macaulay’s 1963 essay “On-contractual relations in business: a preliminary study and move on to Marc Galanter’s 1974 “Why the 'haves' come out ahead : speculations on the limits of legal change.” The first essay points out that the law does not much matter to Wisconsin businessmen; the second provides a schematic account of why law so often fails in its aspiration and serves the interests of the powerful. (The only women in the collection are Catherine MacKinnon and Kimberle Crenshaw.) 

Surely when it comes to marshalling data about gaps between law in action and law on the books, gathering evidence in the service of justice, we ought to start our teaching with Wells as the forerunner of the Law and Society movement.


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