Conceptions of Law in the Civil Rights Movement

Abstract

This Article unfolds in three main Parts. In Part II, I begin my examination of the way law was conceptualized during the civil rights movement with a consideration of three efforts to sharpen the boundaries of the law. First, I look at the vision of law put forth by defenders of Jim Crow as they mobilized against federal civil rights intervention - a vision based on the assumption that law should reflect norms and customs that had evolved outside the law. I then consider the ways in which civil rights advocates in the lead-up to Brown v. Board of Education challenged the segregationist conception of the law by pressing the case for the capacity of law to undermine discriminatory behavior and attitudes. Third, I examine the efforts of the sit-in protesters to define themselves in opposition to lawyers and legal reform tactics. As these episodes demonstrate, the various demands of the civil rights movement created incentives to clarify the boundary around the law. In each of these instances, the essential characteristic of law was its perceived separateness from something else.

In Part III, I then examine two individuals who articulated an alternative approach to categorizing law, an approach that sought to break down the separateness of law and society. The civil rights leader Martin Luther King Jr. and Yale law professor Alexander Bickel both argued for a definition of law that was more capacious than one based on the formal pronouncements of recognized governmental institutions. Each in his own way sought to reconceptualize law so as to recognize processes of cultural change, social disorder, and political agitation as integral to the legal process. Their effort to break down the law-society division, like the efforts of those who sought to emphasize this same division, came in response to the pressures and demands of the civil rights movement.

Finally, in Part IV, I consider the possible implications of this account of the law-society divide in the civil rights movement for legal historians. One of the challenges in moving scholarship of the civil rights movement beyond a dichotomous law-and-society framework, I suggest, will be to remain attentive to the conceptions of law drawn upon by the historical actors themselves, including the value they often placed upon the differentiation of law from society.

Keywords: Constitutional Law, legal history, civil rights, Jim Crow, Brown v. Board of Education, sit-ins, Martin Luther King Jr., Alexander Bickel, law and society

JEL Classification: K10, K19, K30, K39