88 Pages Posted: 11 May 2007
Progressive legal scholars today exhibit contrasting views on the scope of legal actors' agency in making "choices" about how to lead their lives. Feminist legal scholar Joan C. Williams, for example, challenges claims that women who leave the paid workforce to stay home with children have made a voluntary choice to take this path. Critical race scholar Ian Haney López, on the other hand, argues that the social construction of racial identity occurs precisely through the many voluntary choices members of both subordinated and dominant racial groups make about matters that implicate racial meanings. Williams contests the idea of voluntary choice; Haney López embraces it. These different viewpoints highlight the need for further work in legal theory on how to theorize human agency that is, the power of persons, at the individual or collective levels, to develop and achieve creative goals and to act effectively or bring about change within their the social environments in light of those goals. As a number of progressive legal scholars have point out, neither of two leading paradigms which I will term liberal individualism and post-structuralism are fully adequate to this task of theorizing agency within social constraints. I argue that the reason that neither classical liberalism nor post-modernism will fully do stems from the inadequacies inherent in both paradigms' strongly divergent theories of the self. Strong forms of liberal individualism see the self as existing prior to its social surroundings and thus as capable of robust agency in making choices about life goals and how to achieve them, but this perspective arguably does not sufficiently account for the thoroughly socially constructed nature of human values and aspirations. Strong forms of post-structuralism, on the other hand, view the individual as a mere fictiona construction embedded in the structure of language that masks the thoroughly constitutive priority of the social. But this approach, many critics argue, comes close to denying the capacity for human agency altogether. Many scholars are today at work on new ways of theorizing agency that avoid the pitfalls of liberal individualist and post-structuralist approaches. These scholars include Haney López, as we have just seen, argues that social constructs such as race, having been created by human action, are subject to reconstruction through purposive human action; Devon Carboda and Mitu Gulati, who examine the agency of members of outsider identity groups in combating employment discrimination; feminist theorist Kathryn Abrams, who investigates new ways of theorizing "partial agency" in a revised liberal tradition; and post-structuralist queer theorist Judith Butler, who has written about the importance of preserving space for individual and collective agency in theorizing about the social construction of gender identity.
In this Article, I seek to make a modest but important intervention in this discourse about how to theorize agency within a social constructivist framework. I do so by hailing the classical pragmatists' theory of the self as an important but currently overlooked theoretical resource for this work. As revised for use in an early twenty-first century context, classical pragmatism can enrich the discourse on agency within the legal academy because it both acknowledges the thoroughly socially constructed nature of the self yet also recognizes a robust capacity for human agency at the individual and collective levels. The classical pragmatists' theory of the self does not depend on implausible notions that actors possess the ability to "choose" their identities or destinies; it instead embraces the social constructivist insight that actors in a legal system are thoroughly constituted, in their identities, values, desires and goals, by their social context. At the same time, the classical pragmatist conception of social identity construction differs from the subject formation theories of the post-structuralists because, to the classical pragmatists, selves in interaction with each other constantly reconstruct the social environment, just as this social environment, itself composed of selves in interaction, constantly constructs, or gives social identity to, these selves. Classical pragmatism, in other words, conceives of the relationship between selves and the social environment as an interaction with multiple directions, whereas liberal individualists and post-structuralists both tend to overemphasize a single directionality in what we should envision as a more complicated process. Individualists can too greatly emphasize the individual's priority in relation to his or her social surroundings; post-structuralists, revealing their origins in classic structuralism, can overemphasize the overwhelming force of the social on the subject. Classical pragmatism offers a greater emphasis on the multidimensional nature of the interaction among organism and environment, as well as among internalized, often inconsistent, dispositions of the organism and conflicting dimensions of the environment. The self is a multitude of interactions, not a static inside substance (mind) or a location in an external context (structure).
I develop my argument as follows: In Part I, I sketch the contrast between liberal individualist and post-structuralist approaches to the self, drawing for purposes of my brief overview on a several diverse scholars who have received wide attention among American legal academics. In Part II, I present my reading of the interactionist theory of the self the classical pragmatists developed, focusing especially on the work of John Dewey and George Herbert Mead. I show briefly how contemporary scholars in a number of disciplines--though not yet law, surprisingly--have drawn on Dewey and Mead to develop new theories of an agenic self responsive to the challenges of early twenty-first century social theory. These scholars have also begun to trace parallels between Dewey's concept of habit as the flexible mediating link between individuals and their social surroundings and Bourdieu's concept of habitus, derived from continental phenomenology a parallel that deserves greater attention in legal theory today. In Part III, I make the case that the classical pragmatists' theory of the self offers an important intervention in the current discourse among progressive legal scholars about the scope of legal actors' agency. In Part III-A, I summarize key points of comparison between classical pragmatism and post-structuralism. I argue in Part III-B that the classical pragmatists' emphasis on the creativity of human agency offers an important feature missing from post-structuralism. In turn, classical pragmatism can be updated for use in an early twenty-first century context by incorporating into its basic framework the greater contemporary awareness of the pull of the unconscious and entrenched force fields of power, all without negating its emphasis on the potential efficaciousness of deliberative action. In Part III-C, I suggest some of the ways in which a classical pragmatist orientation to theorizing the self solves the difficulties of liberal individualist and post-structuralist approaches and outline some of the tenets of a classical pragmatist approach to the self and human agency as so revised. Finally, in Part III-D, I explore several examples drawn from recent historical debates among legal scholars that demonstrate more concretely the potential applications of such an updated classical pragmatist approach.
Keywords: legal theory, agency, ethics, social change, political activism
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