My son is eight years old. So I think about law a lot. My thoughts about law, in this context, revolve around these questions: “how do I make him obey authority?” and “if it isn’t a pre-agreed-upon rule, what is the basis for that command’s legitimacy?” and “how can I make it easier for my son to understand why it is important for him to follow these rules, even when he doesn’t respect the authority of the person who made them?”
I also teach in, and direct, an undergraduate, interdisciplinary, legal studies program, called Law, Politics, and Society at Drake University. We have more than 170 majors, many of whom are considering going to law school—and others who will enter the business world, politics, governance, and the classroom.
So, again, I think about law a lot. In this case, my questions about law are more likely to be: “how can I get my students to question authority?” and “how can I help them see the context that makes particular commands of the state legitimate, or illegitimate?” and “how can I show them the way that rules structure and inform the maintenance of the status quo, and contribute to particular people holding particular forms of privilege?”
In other words, I’m of two minds.
In the first case, I want my 8-year-old to do what he’s told—and not just because it is easier for his dad and me when he does. I want him to do what he’s told because I recognize that doing so will make life easier for him. But lately he’s been pushing back at authority in school. He has a substitute teacher whose authority he’s not respecting, and I simply want him to comply with her commands, and mine, and his dad’s, to help keep order in the classroom and create a welcoming learning environment for all the kids.
But I also bring to my parenting the mindset about law that I hold as central to my professional self, as a college teacher grounded in the liberal arts. In that case, I want the 18-year-olds in my classroom to question authority. I want them to ask why we have a reproductive law and politics that has been forged on the backs of women of color and the poor, why we have a security state that is obsessed with aggregating consumer information and listening to phone calls, and why we have a politicized discourse about judicial activism and restraint in the United States that conflates the former with progressive politics and the later with conservatism even in the face of good evidence that it isn’t that simple.
Central to my understanding of law and authority is that they are contingent, not absolute—that law has indeterminate power, and that the legitimacy of authority is tied to the politics within which it is created and enacted—and therefore legitimacy is open to question. I agree with Thomas Paine, not just about the right to revolt, but—perhaps even more centrally—the obligation of citizens and patriots to civil disobedience in the face of unjust or harmful laws.
And then, I write this all, too, in a context of a government shutdown that makes me so apoplectically angry that I can’t speak about it in polite company. A shutdown that members of the Tea Party are painting as civil disobedience in response to an unjust and harmful law; and a shutdown that I understand as hostage-taking extremism that has no place in a democracy of laws. Whose right to revolt? Whose obligation to civil disobedience?
At my kid’s All School Picnic a week or two ago, at a great park in our fine city, I sat at a table with two other moms while our sons and daughters were participating in some anarchy. This wasn’t Tea Party government shutdown anarchy, nor was it April 26 1992 rioting anarchy. Nope, it was the joyful anarchy of running around with no discernable goal, no teams, no narrative, just kinetic movement and laughter. We moms talked about the differences between my son and his friend Justin. Justin is often at our house, and he often complains to me “that’s not fair.”
Justin has a very specific definition of “fair”—as I said to his mom, “he’s a proceduralist—he cares more about procedural justice than substantive.” She agreed, and nodded when I added, “Wyatt, on the other hand, is all about the substance—and to heck with procedure.” (Yes, moms who are also lawyers and legal studies professors do talk like this.)
And, it’s true. Justin cares to know that the process by which we came to decisions was and is fair. He likes to know what the rules are so he can follow them (or not). Wyatt wants to know that the decision we came to, the outcome of the process, is fair. He likes to know what the outcome will be, almost in order that he can figure out a different way to get there. If you show Wyatt the quickest route to a good destination, he’ll try to figure out five other ways to get the same place, and then decide which one to take based on what he values most that day: the one with the good view, the one that takes the longest, the one that has a water stop along the way. Sometimes, we ride our bikes up an enormous hill instead of cutting across a diagonal street that runs nice and flat just to have a paper cup of the free water that some kind homeowners put out every day except Sunday.
Wyatt cares much more about substance than process, and he’s not able to follow a rule just “because it’s a rule.” This is largely a result of the fact that we do not practice authoritarian nor authoritative parenting. Rather, we stress natural consequences via unconditional parenting. We trust him to figure out the best strategies to be kind and successful day to day. Indeed, the only times I’ve ever uttered the words “because I said so” in response to him asking “why do I have to do that?” we’ve both dissolved into laughter.
This means, too, that Wyatt is—for better or worse—incapable of following a rule that he thinks is wrong, and he finds it really hard to ignore injustice (perceived or real) in his classroom.
This worries me and makes me sad, because the parent in me knows that this view of law and authority will complicate his life, and that he’s not mature enough, yet, to use it constructively. But, more than that, it gives me hope and makes me happy, too, because I firmly believe that we need more citizens willing to think critically about the actions of the state we live within, to care more vehemently about the implications for justice of the decisions that we allow authority to make in our name, and to think creatively about processes to get out of the binds we find ourselves in, in this tenuous and precious democracy.
Certainly, I love The Onion’s parody, where they imagine an emergency team of Civics Teachers getting sent to Washington DC in order to solve the budget crisis. But I think I might love, even more, the idea of sending a bunch of substantive justice minded 8- and 9-years-olds to DC to ask about the justice implications of continued gridlock and defunding of vital social programs. After a little lesson in substantive justice, I’d be happy to send Justin in to teach our lawmakers some processes by which to figure this out, and even, yes, to enforce some rules.
Renee Ann Cramer is a Professor in and Director of the Program in Law, Politics, and Society at Drake University.