Editors' Introduction Rethinking the Law and Social Transformation Debate: Beyond the Correspondence Metaphor N.C. Sargent, Carleton University It seems appropriate to dedicate an issue of the Journal of Human Justice to the theme of law and social transformation, since this theme appears to be at the forefront of many of the contemporary debates within the field of sociology of law in Canada. These debates have acquired a particular importance in view of the enactment of the Charter of Rights and Freedoms in 1982, which gives new powers to the courts to become involved in mediating disputes over fundamental social policy issues. As a result, the role of law as an arena for social and political change, and particularly the potential of legal rights struggles as a form of political action, have increasingly climbed to the top of the intellectual agenda for m a n y sociologists of law and legal theorists alike. In this sense, Comack and Brickey (1991) argue that there has been a significant shift in the focus of inquiry within Canadian sociology of law in recent decades, which in turn reflects a shift in theoretical paradigms within sociology itself. Up until the end of the 1960s, the dominant theoretical paradigm within Canadian sociology of law was structural functionalism. The structural functionalism paradigm ascribes a particular role to law. Law is seen as an important integrative mechanism which functions to maintain the cohesiveness of social relations by reflecting a particular image of society and a dominant set of social values. Within this paradigm legal reforms tend to be viewed as reflecting changes in underlying social and political values, rather than as instigating them. Consequently, relatively little attention is given to theorizing the role of law as an instrument for social transformation (Comack and Brickey, 1991). During the past two decades, however, the dominant functionalist paradigm within Canadian sociology of law has been superseded by a new theoretical paradigm - - liberal pluralism (Comack and Brickey, 1991). Liberal pluralism ascribes a much more pro-active role to law as an agency for social transformation. Instead of seeing the relationship between law and society as essentially static and unchanging, the liberal pluralist paradigm within Canadian sociology of law places more emphasis on the need for a more historically and socially contextualized investigation into the relationship between law and society. Law does not just reflect society's "values" in any self-evident way. Social values are inherently political, and therefore are always contested and open to renegotiation, depending on the balance of social forces at any given time within any social formation. Law, therefore, also comes to be seen as political, as an arena or site of political power over which various groups or interests in society compete (Comack and Brickey, 1991).
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More recently, however, the liberal pluralism paradigm has itself been challenged by the emergence of strong Marxist and feminist critiques, which emphasize a more structural analysis of the origins of power and social conflict than appears within most liberal pluralist accounts of law. Critical theorists tend to emphasize not only the political character of the content and application of law, but more significantly the ideological dimensions of legal discourse and legal practices (Comack and Brickey, 1991). From this critical perspective, law is far more than a neutral tool for achieving social policy goals that are fought over by different groups within society. Law also functions ideologically to mystify and obscure the experience of social reality by projecting an idealized image of social relations within capitalist society; an image that stresses the formal equality of individual legal subjects, regardless of systemic inequalities based on class, race, gender or ethnicity (Glasbeek and Mandel, 1984; Turpel, 1991). The aim of much critical legal scholarship,therefore, is to demystify law by exposing the contradiction or lack of correspondence between law's image of social relations and the actual lived experience of social actors. As a result, many critical theorists are reluctant to place too much faith in law as an agency for achieving fundamental social or political change (Glasbeek and Mandel, 1984; Mandel, 1989; Fudge, 1990; Turpel, 1991; c.f. Brickey and Comack, 1987). My aim in this brief introduction is not to elaborate on the theoretical differences that separate these competing approaches to law among functionalist, liberal pluralist and critical theorists. Rather, the aim is to explore the underlying conceptual or metaphoric structure within which the contemporary debates over the relationship between law and social change are taking place. Briefly, the argument is that most of these theoretical debates over the role of law as an agency for social or political change occur within the parameters of a particular conceptual framework which imposes limits on the way in which the relationship between "law" and "society" can be articulated. I will refer to this conceptual framework as the "correspondence metaphor' (c.f. Santos, 1987). The correspondence metaphor is premised on the assumption that there is a 'real world' of social relations or social behaviour and values which exists outside of and prior to "law', which can therefore be relied on as an external reference point in studying law, or the effectivity of legal change. Both "law' and 'society" are therefore conceptualized within a spatial relationship, in which "law' occupies its own sphere outside of 'society', but without being viewed as a completely autonomous or dosed terrain (Nelken, 1986; Santos, 1987). The task of sociological inquiry, therefore, is directed towards investigating the nature of the relationship between these two spheres, in order to be able to answer theoretical and empirical questions about the extent to which "law" actually does correspond with 'real' social relations, or impacts upon social behaviour and values. By framing the essential relation between law and society in terms of
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the correspondence metaphor, the theoretical and empirical questions posed by sodologists of law tend to take on a particular form. Does law unconsciously reflect the social values of the community, as functionalist theorists claim? Or are these social values inherently contingent and political, as liberal pluralists claim? Is power relatively evenly distributed among various groups within society? Or does law reflect the interests of the dominant elites within any sodal formation? Does law always speak through the abstract language of legal individualism? Or is law open to a plurality of different "voices" which are capable of constructing very different images of social relations? While providing a very useful analytical tool, I want to suggest that relying on the correspondence metaphor as a framework for articulating the law/society relationship itself carries certain costs, which are not always immediately apparent or easily visible. Thus, it is easy to lose sight of the fact that the correspondence metaphor both relies on and at the same time produces a particular conception of qaw" as a unitary field of discourse and practice (Santos, 1987). There must be some essential characteristic of legal practice and legal discourse that justifies us in thinking of qaw" as existing somehow apart from, though connected with, "society'. But in a significant way, this conception of law as a coherent and unitary field of practice and discourse is actually produced as an effect of the correspondence metaphor. Without a unitary conception of law there would be no possibility of imagining any conceptual space between qaw" on the one hand and 'the social' or "society' on the other. And without this conceptual distance between law and society, the correspondence metaphor would collapse and lose all meaning as an explanatory or analytical tool. In much the same way, the correspondence metaphor also mandates a unitary conception of 'society" or 'social relations' which has a separate existence prior to law. Without this conception of society having a prior independent existence from law we would have no external fixed reference point from which to begin our inquiries about law. Both "law' and "society" therefore arrive upon the scene, so to speak, complete and ready made, already existing in relation to one another (Fitzpatrick, 1984; Sargent, 1991). In other words, instead of simply providing an analytical tool for explaining the relations between law and society, the correspondence metaphor actively constructs that which it sets out to describe. As a result, the types of theoretical and empirical questions we can ask about law and the role of law as an agent of social transformation are themselves constrained by the assumptions built into the correspondence metaphor. This can be seen very clearly in relation to the debate over law and social transformation among critical theorists. Indeed, the very formulation of this debate in terms of whether or not "law"is an appropriate agency for achieving "real" social change reveals the hidden influence of the correspondence metaphor at work. This debate tends to be framed in dichotomous terms, because the correspondence metaphor itself con-
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structs the essential relation between law and society in dichotomous terms. To put this another way, if law is no longer conceptualized as a unitary field of discourse and practice that exists in relation to a pre-constitutecl 'society', this m a y open up the intellectual space for a whole new set of questions about the relationship between law and social change that are at present foreclosed by the correspondence metaphor. This in turn m a y have very practical implications. If law is no longer viewed as existing somehow outside of and apart from 'society', then the argument that legal change can never achieve 'real" social change loses much of its force (c.f. Glasbeek and Mandel, 1984; Mandel, 1989). Indeed, it becomes not only impractical, but also impossible to give up on law as a site of social and political struggle, since law itself comes to be seen as a powerful discursive or representational field through which the social is constituted. Consequently, instead of asking whether legal reforms alone can result in fundamental social change, the more appropriate questions for critical theorists to ask may have to do with exploring the complex social processes through which legal discourses interact with ideological discourses produced within other representational fields such as the media, politics, science, sport or religion. And this in turn may provide a more useful theoretical starting point in examining what types of legal reform strategies are likely to result in progressive social or political change (c.f. Brickey and Comack, 1987; Bartholomew and Boyd, 1988). The articles in this issue of the Iournal of Human Iustice reflect a diversity of approaches to the correspondence metaphor and to the debate over law and social transformation. Wright adopts a very cautious stance towards the transformative potential of law, arguing that the attempts by radicals following the War of 1812 and the 1830 rebellion in Upper Canada to utilize their sedition trials as a platform for mobilizing popular political action met with only limited success. Wright observes that such struggles were at best rearguard actions, not to be confused with real political. struggles, which took place in the political arena, rather than in the courts. By contrast, the articles by Pickett and Sheptycki both take a less dichotomous stance towards the relations between law and other forms of discourse. Pickett explores the contemporary debate over law versus mediation in the area of child custody disputes and condudes that the way the debate has been framed is needlessly dichotomous. Instead of seeing these two modes of discourse as being radical alternatives, Pickett suggests that they should be seen as part of a continuum in which each exists in relation to the other, and both are implicated in reinforcing a familial ideology that disadvantages women. Sheptycki's article on the policing of family violence examines the discursive frameworks within which the police institutionally understand and respond to domestic violence complaints. Sheptycki argues that changes in police responses to family violence do not necessarily involve radical shifts in police organizational practices or understandings of
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"crime'. As a result, efforts by feminist activists to focus more attention on the needs of the female victims of domestic violence may be subordinated to traditional police organizational imperatives concerning "clear-up" rates and a focus on male offenders. The article by Boyd et al. on " D ~ g Use and Violence: Rethinking the Connections" involves an empirical study of the relationship between violent crime and drug use. The authors argue that the connection between drugs and violence in the popular imagination is partially informed b y arbitrary legal distinctions between legal and illegal drugs. Consequently, efforts to use criminal law to control violent crime or drug use are distorted by the fact that the criminal law itself is already implicated in the construction of the social problems that the law is then invoked to deal with. Hastings examines the role that 'crime prevention' plays in the rhetoric of crime control used by politicians and criminal justice experts. Despite the appeal of crime prevention as a rallying point in the war against crime or as a symbol for more community-oriented policing, Hastings observes that little has been done in practice to make crime prevention an operational goal of the criminal justice system. Consequently, crime prevention remains a rhetorical prop for the criminal justice system, which legitimizes the traditional reactive response to crime on the part of institutional actors within the criminal justice system, rather than a means of placing more control over crime into the hands of the community. This edition also includes a conference report on two recent conferences held in South Africa which addressed the complex relationship between sex and race discrimination in the ongoing struggle against the apartheid state in South Africa. Sheehy reports on the efforts of feminist activists both within and outside the ANC to incorporate women's concerns with sex discrimination into the drafting of a new constitution for a post-apartheid South Africa. Finally, Boyd discusses the impact of recent feminist and postmodernist challenges to totalizing concepts such as 'the state" in a review essay of recent books by Gelsthorpe and Morris, Feminist Perspectives in Criminology (1990) and Watson, Playing the State: Australian Feminist Interventions (1990).
REFERENCES Bartholomew, A. and S. Boyd "I'he Political Economy of Law." W. Clement and G. Williams (eds.), The New Canadian Political Economy, Kingston: McGiU-Queen's Press, 1988: 212-239. Brickey, S. and E. Comack "Fhe Role of Law in Social Transformation: Is a Jurisprudence of Insurgency Possible?" Canadian Journal of Law and Society 2, 1987: 97-119.
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Comack, E. and S. Brickey, "Theoretical Approaches in the Sociology of Law." Elizabeth Comack and Stephen Brickey (eds.), The Social Basis of Law, (2rid ed.) Toronto: Garamond, 1991: 15-32. Fitzpatrick, P. "Law and Societies" Osgoode Hall Law Journal 22, 1984: 115138. Fudge, J. "rhe Violence of Abstraction: What do we Mean by Law and Social Transformation?" Canadian Journal of Law and Society 5,1990: 47-69. Gelsthorpe, L. and A. Morris (eds.), Feminist Perspectives in Criminology, Milton Keynes: Open University Press, 1990. Glasbeek, H. and M. Mandel "I'he Legalization of Politics in Advanced Capitalism: The Canadian Charter o fRights and Freedoms" SociafistStudies 2, 1984: 84-109. Mandel, M. The Charter of Rights and the Legalization of Politics in Canada, Toronto: Wall and Thompson, 1989. Nelken, D. "Review Essay: Beyond the Study of 'q_aw and Society"? Henry's PrivateJusticeand O'Hagan's The End ofLaw?"American Bar Foundation Research Journal 2, 1986: 323-338. Santos, B. "Law: A Map of Misreading. Toward a Postmodern Conception of Law" Journal of Law and Society 14, 1987: 279-302. Sargent, N. "Labouring in the Shadow of the Law: A Canadian Perspective on the Possibilities and Perils of Legal Studies" Law in Context9 (2), 1991: 65-86. Turpel, M.E./ Aki Kwe "Aboriginal Peoples and the Canadian Charter of Rights and Freedoms: Contradictions and Challenges." Elizabeth Comack and Stephen Brickey (eds.), The Social Basis of Law, (2nd ed.) Toronto: Garamond, 1991: 223-237. Watson, S. (ed.), Playing the State:Austra lian Feminist Interventions, London: Verso, 1990.
