parochialism, fatalism, neo-liberalism, and individualism. These four perspectives are defined by an oppressed community’s members’ aspirations for liberation (2728).
any community whose fundamental self-conception is as oppressed will not view liberation and thus life and justice monolithicly (2730).
A. DEFINING THE MODEL
Professor Robert Cover proposed that every insular community has its own normative universe in which it develops its own, insular legal tradition; this he called jurisgenesis (2730).
Jurisgenesis exists independently of states and takes place through an essentially cultural medium (2730).
Cover described a world in which states arise not to impose law where none existed but to suppress a plethora of competing legal traditions; he termed this the state’s “jurispathic tendency” (2730).
Cover’s state destroys legal traditions that aid daily func- tioning within our diverse communities (2730).
[in an oppressive community] The community’s heritage of oppression and its resulting pursuit of liberation reveal four perspectives on life which in turn guide its member’s conceptions of justice (2730).
The four perspectives-parochialism, fatalism, neo-liberalism, and individualism—each attempt to rebel against and destroy the oppressive order while simultaneously vying for survival in the oppressive environment (2730).
1. First, the community must decide whether to develop its own view of life, liberation, and justice or to simply accept the state’s (society’s) view (2731). 2. The members of the community must decide whether they are to conduct the liberative project themselves or whether abstract or noncommunity entities such as liberal society, God, truth, or individual effort will end their community’s oppressed condition (2731).
The empirical assessment behind parochialism holds the state solely responsible for the community’s oppression. Its normative vision considers the prospect of liberation to be dependent upon the outcome of a combative relationship between the community and the state. Life is unjust and justice can only be won through community unity and inter community conflict (2731) . . . . Parochialism demands violent revolt and autarky; accordingly, the ideology can be pessimistic and depressing (2732). • The controlling ethic of parochialists is material liberation of the insular community from the state (2731).
[Parochialism: insular, materialistic, broad analytic constructs]
Life, liberation, and justice all operate as functions of a higher order that governs the insular group. The community is oppressed for an abstract reason such as destiny or God’s will. Normatively, liberation will be found in “truth” or some after-life; there is no need to change the present world order. Fatalism’s conception of liberation is, nonetheless, still insular and maintains that the community and the state oppose each other (2732). • For fatalism the controlling ethic is higher truth (2732).
[Fatalism: insular, escapist, rejects analytic constructs]
The third view, neo-liberalism, rejects the pessimistic and insular outlooks of both material and visionary parochialism. It accepts that the we/they con- struction exists; however, its normative vision suggests that liberation will be achieved through the destruction of insular communities. For neo-liberals, the problem with life is not necessarily oppression itself but the existence of insular communities which manifest that oppression (2733). • It acquiesces to power; its universal morality risks embracing “might” over “right” (2734).
• In a jurispathic society, neo-liberalism facilitates assimilation because it tends to accept the prevailing social order as objectively “right” (2734).
[Neo-liberalism: individual, escapist, narrow analytic constructs]
The final view, individualism, is materialistic and personalized. Like parochialists, individualists characterize life as brutal and burdensome. However, they implicitly frame the battle, not as between the community and the state, but rather between individual community members and the oppressive society. . . . Community liberation for the individualist is only the aggregate of successful individual liberation (2734). • Each individualist creates an internal system for judging life and attaining liberation (2734).
• The individualist demands respect from all who will give it and respects only those individuals who demand respect (2734).
• this ethic of respect is brutal and violent in its operation (2734).
[Individualism: individual, materialistic, manipulates analytic constructs]
B. LEGAL TRADITION OF THE FOUR PERSPECTIVES
four cases: (1) “One of us did something to one of them”; (2) “One of them did something to one of us”; (3) “We did something to ourselves”; and (4) “They did something to themselves” (2735).
[four cases: (1) us versus them, (2) them versus us, (3) us versus us, (4), them versus them] [these four cases determine the JUST ACT, that is, an agent’s morally justifiable action]
1. Parochialism and the Just Act The parochialist is concerned with the community and its struggle against “them” (2736).
The hard case for parochialism arises when “One of us does something to another one of us.” Parochialists cannot decide to support either the actor or the victim because both are community members (2736).
Intracommunity violence is contrary to parochial liberation, but condemnation of the act of a community member would be contrary to parochialism’s community unity ethic (2736).
parochialism reserves judgment on the “us versus us” act, ignoring community members victimized by fellow community members (2737).
[identity and action important]
- Fatalism and the Just Act Ultimately, neither the differential views of acts and actors nor manipulable analytic constructs illuminate this perspective, which transcends the physical world of acts and judgment (2737).
Its assessment of acts is concerned primarily with the group members’ relationship to God and ignores the actions of other people (2737).
[identity important, actions unimportant]
- Neo-liberalism and the Just Act Neo-liberals envision a world where “all [people] are created equal.” An evil act occurs by definition whenever one person commits a violent act upon another person. To neo-liberals, the identities of the actor and victim are unimportant (2737-38).
The neo-liberal does not deny the existence of the we/they world. But the neo-liberal does assert that the we/they con- struction (oppression) exists because people are viewed and treated as victims and oppressors rather than equals (2738).
When “one of us does something to one of them,” we are evil because we inflicted harm upon another person (2738).
When individual autonomy is compromised, the actor is always wrong and evil. It does not matter if we commit acts upon “ourselves” or they upon “themselves” since neo-liberalism sees one collective humanity (2738).
[identity unimportant, actions important]
- Individualism and the Just Act Individualism’s materialism makes its concept of autonomy different from neo-liberalism’s by stressing personal success instead of humanity. Individualism emphasizes interpersonal relationships. It accepts that not all members of the group are concerned with the liberation of themselves or the community. It anticipates that some community members even reject the community and work against it. Individualism recognizes its own ethic: community members may aspire only for their own liberation, even at the expense of the community (2738).
Like the varying dogmas of fatalism, the subjective determination of individualism is essentially amoral (2739).
Individualism constructs a draconian, nihilistic world of “an eye for an eye” where the meek are trampled for their inability to assert dominion over themselves (2739).
[identity unimportant, actions unimportant]
C. THE FOUR PERSPECTIVES OF THE JURISPATHIC STATE
Parochialism, fatalism, and neo-liberalism cannot survive as independent, comprehensive jurisprudential constructs in the jurispathic state. Parochialism fights a war that, by definition, it cannot win, destroying the community in the process. Fatalism creates martyrs, destroying the community’s members physi- cally or psychologically.’ Neo-liberals, while not destroyed by the jurispathic state, provide no realizable alternative, ignoring the community’s problems. Thus, the community as a whole rejects neo-liberalism (2740).
Individualism, presupposing no just order, focuses on the material improvement and autonomy of individuals. This narrow materialistic prescription bolsters individualism in a materialistic, jurispathic state (2740).
While least capable of developing a moral order, individualism becomes the perspective most likely to survive because it accepts oppression and the state and attempts to prosper within that context. Since individualism is amoral, a state’s jurispathic tendencies tend to destroy structural morality in the oppressed community (2740).
[parochialism, fatalism, neoliberalism create moral structures; individualism does not] [parochialism, fatalism, neoliberalism are communal (insular, insular, universal respectively); individualism is not]
The jurispathic state effectively demands that an oppressed community overturn the state to develop a moral order that can thrive (2740).
The jurispathic state destroys, dismantles, and splinters the community, not only physically but also philosophically. The community’s strongest and most viable perspective makes it necessarily subordinate to and dependent on the moral construction of the state that oppresses it. The community’s only other alternative is to put forth inconsistent and contradictory combinations of views that, because of their inconsistencies, cannot resolve issues of relevance to the community satisfactorily (2740).
Escaping the Errors: One Route
employ what Gerald Torres has called “conversation ending moves,”’ stories in the first person (2744).
Narratives in the personal voice are inconsistent with parochialist and fatalist constructions. The use of the personal voice to express a parochial or fatalist view forces speakers to claim to speak for others when they very often have no authority to do so. This is because parochial and fatalist constructions minimize the significance of individuals’ opinions relative to group opinions. Conversely, individualism and neo-liberal- ism demand deference to the individual’s view (2745).
Paul Brest argues that scholars, lawyers, and judges, because of their class and education, have a tendency to agree with libertarian views much more than a sample of the mass public (2745-46).
It is the examination of the less abstract, that element which lies between the historical constructions and their ultimate conceptual conclusions (the four perspectives), that produces substantive answers to moral questions (2746).
The model simply categorizes reactions to oppression and suggests the form each reaction’s view of justice would take (2746).