In 2001, Prof. Dalia Tsuk of the University of Arizona wrote a paper entitled “THE NEW DEAL: ORIGINS OF AMERICAN LEGAL PLURALISM”, which I wish to summarize for purposes of legal research of the visitors of this blog.
Prof. Tsuk defines “pluralism” as “a commitment to devising a plural polity” and “ideology” as “the structure of ideas and beliefs—about right and wrong, about the meaning of democracy, about the goals of national policy—that influences an actor’s understanding of reality.”
She starts with the concept of “self-determination” by observing that “legal scholars and policymakers are today attempting to develop legal mechanisms that would accommodate the unique interests of particular groups, while also mediating and settling potential conflicts and tensions be¬tween individuals, groups, and peoples.”
The term “pluralism” is often associated with “process theories of democracy”, which seeks to create a conception of a “neutral political proc¬ess” in which different groups interact, com¬pete, or trade ends.
Theories of pluralism often recognized diversity not merely as an empirical fact, something that we must tolerate grudgingly or try to reduce, but as a “constitutive element of American democracy”. The extent to which laws and policies sought to accommo¬date and promote diverse group interests, beyond the sheer recogni¬tion of their existence, reflected a nation’s commitment to democratic values.
There are three models of pluralism: “socialist plural¬ism,” “systematic pluralism,” and “comparative pluralism.”
The author discussed the US federal Indian policy during the 1930s and 1940s, a period commonly labeled the “Indian New Deal.” The historical agent is Felix Solomon Cohen, who was the chief legal architect of federal Indian policy during the New Deal and who is also recognized today as one of the most important legal philosophers in the first half of the twentieth century.
Federal Indian policy at the turn of the twentieth century sought to break down tribal organization and force all Indians to assimilate, particularly through the distribution of communal lands to individ¬ual owners. The essence of the Indian New Deal was to stop allotment and assimilation by delegating to Indian tribes more authority over their economic, so¬cial, cultural, and political affairs.
Pluralism insists on the “plurality of things, as given in experience”, and on the “impossibility of a single law to traverse all the various domains of being”. A pluralist theory of knowledge insists on the “multiplicity (whether limited or infinite) of knowers in the world and various forms of knowledge or truth, none of which could claim epistemological primacy.” Plu¬ralism implies the existence of “a variety of competing ends, among which policymakers had to choose”.
Pluralism had much in common with pragmatism. Both ap¬proaches substitute empiricism, particularism, indeterminacy, and uncertainty for rationalism, universalism, determinacy, and cer¬tainty. Pragmatism emphasizes that the understanding of reality is mediated through experience. It was a theory of truth that sought to redefine reality according to experience. Pluralism focuses on the complex nature of reality. Not only is our conception of reality mediated through our individual experiences—as pragmatism suggested—but reality is also, for each one of us, one and many at the same time.
Pluralism’s focus on the “relationship between the one and the many” appealed to progressive thinkers. It offered a way out of the “tension between conservative individualism, on the one hand, and radical collectivism, on the other”.
Cultural pluralists seek legal mechanisms “that would accommodate the distinct heritages of diverse cultural groups”. Political pluralists strive “to empower distinct associations by recognizing their sovereignty, however limited”. Pluralism is “the midway between radical collectivism, on the one hand, and conservative individual¬ism, on the other”. Marching under the banner of “cultural self-determination” or that of “self-government,” advocates of pluralism pledge “a strong commitment to group autonomy”.
In the case of American Indians, the author stated that throughout the nineteenth and early twentieth centuries, Indian tribes were “at the outer boundaries of American society”. Until the mid-nineteenth century, white settlers sought mainly “to push Indian tribes westward and made no attempt to integrate the tribes into Anglo-American society”. Unlike other minority groups, Indian tribes were regarded as “distinct political communities” with limited sover¬eignty. Their efforts to maintain their tribal organization, however, often proved futile in the face of “military con¬quest, fraudulent or unfulfilled treaties, and the pressure of white settlement that forced them away from most of their lands”. Begin¬ning in the 1850s, Indians were “forced onto reservations”.
Beginning in the 1870s, government officials stressed the “need to assimilate all Indians into the mainstream of American life”. The General Allotment Act of 1887 (the Dawes Act), which articulated the “new policy of as¬similation”, targeted the tribes’ communal holding of property. The Act equated freedom with “individual possession of property”. It sought to force assimilation and the disintegration of tribal organization, particularly through the “distribution of commu¬nal lands to individual owners”. The Act was meant “to force Indians to cease their tribal ways, to be¬come individual farmers on small plots of lands, and thus to open the remainder of U.S. Indian reservations to non-Indian use.” The turn of the twentieth century thus witnessed the “reduction of many tribal governments from unalloyed internal sovereigns to virtual nonenti¬ties.”
A series of laws passed during the first decades of the century added insult to injury: they sought to enhance Indian assimilation, first by giving individual Indians their “pro rata share” of tribal funds and then by giving them “American” citizenship, e.g. the 1907 Lacey Act, the 1917 “Sells Declaration”, the 1919 Citizenship for World War I Veterans Act, the Snyder Act of 1921, the 1924 Indian Citizenship Act. To be citizens of the United States, Indians were pre¬sumably welcomed into the polity “but only as long as they relin¬quished their old ways.”
The author stated that the results were disastrous. The 1928 Meriam Report described “poverty, disease, suffering, and discontent” among Indians. Between 1887 and 1932 almost two-thirds of what remained of Indian lands were lost to white exploitation. Many Indians were theoretically in possession of considerable property, including land, but were, in reality, paupers. Few became successful farmers or ranchers, a fact that helped to deepen social and political divisions on the reservations. The distri¬bution of tribal lands also hastened the disintegration of many tribal governments or at least forced them to alter their traditional struc¬tures. Assimilation was never really even offered. The Indians were “given” citizenship but denied the rights of citizens, including the right to vote, access to local schools, and the right to serve on ju¬ries.
With the coming to power of the New Deal administration, federal Indian policy was ripe for change. Shortly after his appointment in the spring of 1933, John Collier—the new Commissioner of Indian Affairs—denounced land allotment as “a violation of tribal sovereignty and the vested rights that Indians had secured in previous treaties in return for much of their lands”. Collier pledged instead the moral and legal obligation of the government “to stop land allotment and to act upon the bilateral contractual relationship that it had created before 1871 with Indian tribes”.
Cohen suggested that the task of the new ad¬ministration was to stop the pressing of “capitalist individualism” on Indian tribes “through the allotment of tribal property to individual Indians and through the inculcation of the capitalist psychology,” and instead, to protect and encourage “a communal ceremony.”
Cohen be¬lieved that “with respect to Indian tribes, capitalism itself was op¬pressive”. He believed that “to leave Indian tribes to compete with business corpora¬tions in a supposedly noncoercive world, he asserted, was as encum¬bering as the control of their affairs by the bureaucracy”. Cohen argued: “We shall not add to the Indian’s freedom by accepting the shallow arguments of those who insist that the Indian will be free when he is given his own indi¬vidual property, [and] permitted to live under state laws and enjoy freedom of contract,” Cohen proclaimed… The termination of gov¬ernmental control would not inaugurate Indian free¬dom. It would only exchange the slavery of bureaucracy for the slav¬ery of poverty.”
What, then, was a solution that served Indian interests? Accord¬ing to Cohen, in order to protect the economic and political interests of Indian tribes, the Government had “to establish self-governing socialist communities on Indian reservations”. Cohen suggested that “through the mechanism of municipal and quasi-municipal charters issued by the Secretary of the Interior to Indian tribes and ratified by the Indians concerned,” Indian tribes would establish their self-government.
Cohen believed that the “incorporation” of Indian tribes would prevent future loss of Indian lands and allow the repurchase of res¬ervation lands already lost to non-Indians. He further maintained that the government should provide Indians with the credit facilities they needed to develop their own properties and should encourage communal holding of lands and other resources that could not be effi¬ciently used by individuals. Ultimately, the various political and economic powers, which were in 1934 invested in the Department of the Interior, were to be transferred to their true “owners”—the Indi¬ans. Through the establishment of “definite community ordinances” and community courts, as well as a special Federal Court of Indian Affairs, Cohen also expected an important shift toward legal stability and political advancement. When all that was secured, he pre¬dicted, the powers of the Government to govern tribal affairs could be entirely abolished. Genuine socialist communities would then flourish on Indian reservations.
Cohen’s program for reform “was informed by earlier theories of political pluralism, particularly Harold Laski’s, and by the legal realists’ view of law as an apology for political (social and economic) oppression”. He urged the “distribution of sovereignty to all associa¬tions, including labor unions, trade unions, industrial unions, con¬sumer organizations, farm organizations, semigovernmental corpora¬tions, and forms of associations that have not yet been invented.” Sovereignty was conditioned, however, upon a group’s “willingness to be democratically governed and, if possible, to adopt an economic structure premised on communal holding of property”. He envisioned “self-governing communities such as labor unions as the foundation of American democracy”.
The author stated that in 1937, Louis Jaffe argued that if groups were sovereign, they were also lawmaking entities and the state lost its absolute power as an exclusive producer of a singular system of national law. Cohen rejected it. As a socialist, he feared that “without centralized planning, free competition between corporations and labor unions would benefit the former at the expense of the lat¬ter”. Cohen’s approach was premised on a “strong commitment to governmental (socialist) planning”. He believed that “national plan¬ning was required not only to coordinate the plans of different self-governing associations, to balance production and consumption, and to distribute wealth and income, but also to protect fundamental in¬dividual rights.”
The establishment of modern governments, modeled after municipal and housing corporations and subject to the supervision of the Government, was the only alternative to assimilation. Cohen maintained that consulting the Indians was vital “to awaken sympathetic understanding among those most directly concerned with this policy.” Critical of earlier attempts to “impose capitalist individualism on Indian reservations”, Cohen failed to recognize that the structure he preferred “was a cultural product, too, and not necessarily suitable for the customs and tradi¬tions of Indian tribes”. Ironically, Cohen, who as an intellectual cele¬brated pluralism and as a Jewish American rejected assimilation. At any rate, he hoped to create “a single economic, if not also political, structure on Indian reservations”.
In general, the Government fell short of most of its political and economic aims. It stopped allotment, but since the transfer of lands from indi¬vidual to tribal ownership was voluntary, and as appropriations for land consolidation and purchases were restricted, I had a relatively limited degree of control over Indian eco¬nomic resources. Since a time limit was imposed, many Indians were rushed—maybe even coerced—into “a system of organization with which they were unfamiliar.” Others found their powers limited. Many felt that the Government had pressed the democratic philosophy not too far and that it had not pressed it far enough or skillfully enough.
One of the major drawbacks of the Government was its na¬ïveté with respect to Indian cultures, customs, and laws. Cohen, for one, came to the New Deal believing that racial and ethnic tensions would disappear once class conflict was resolved. His daily encoun¬ters with Indian tribes taught him oth¬erwise. As early as 1935, Cohen admitted that American law repre¬sented not only the force of the state utilized by a dominant capitalist class, but also the force of the state utilized for the hegemony of cul¬ture. He wrote that the multiple meanings of legal concepts were tools in the hands of powerful lawmaking agencies. They gave a con¬cept one meaning when applied to one interest group, and another when applied to a different group. Recognizing, with pluralists, the incompleteness of human knowledge, Cohen urged the under¬standing of legal reality and the definition of legal rules as re¬flecting interrelated particular and collective interests.
The recognition of a multiplicity of value systems raised impor¬tant questions about the resolution of conflicts that could transpire between such systems. Like earlier discussions of political pluralism, socialist plural¬ism was premised on a categorical de¬scription of conflict as “a struggle over limited economic resources: employers against employees, corporations against labor unions, producers against consumers, and Indians against non-Indians”. The solution was universal and “scientific”: redistribution. It seldom meant more than a repositioning of two sides to a conflict. It ne¬glected to notice that interests were embedded in distinct legal and political systems. Given the multiplicity of cultures, groups, and forms of knowledge, it was unfeasible to as¬sume that one could provide a universal solution for diverse con¬flicts. By the late 1930s, Cohen articu¬lated an ideal of systematic pluralism, or what he labeled systematic relativism, as a model for realizing diverse interests. It was, in Cohen’s view, a “principle of logical tolerance.”
Legal change required not only the un¬derstanding of legal reality as a variety of interrelated particular and collective experiences, but also the reconstitution of different legal systems as broader and more inclusive. If different philosophical sys¬tems could be increased in scope to maintain common content, then the distinction between the meaning given to abstract concepts within each of them was one of degree—of emotions and attitudes— not of kind.
Traditional morality, with its focus on individual life presupposes a metaphysical dogma, i.e., “the dogma that the individual is an ultimate unity and society an ultimate plurality.” So¬cial balance, particularly the redistribution of wealth, was “preor¬dained to be unjust”. Cohen’s alternative was a “socialized morality”. By admitting that adjustment and integration of diverse in¬terests were possible, socialized morality made the normative endorsement of cultural pluralism less threatening. Cohen believed that the possibility of “a social inte¬gration of conflicting interests” is substantiated by the “integration of conflicting interests in an individual life”.
The central point of Cohen’s socialized morality was the rejection of individualism because individualistic theories resisted pluralism. Cohen wanted to guarantee that law favored solutions that encouraged the “flourishing of diverse social ideas, be¬liefs, and values”. He wanted law to promote solutions that would sus¬tain the individual as a “modern social being in a pluralistic society”. Every law should be examined in light of its “ef¬fects on the enterprise of social integration”. His theory of systematic pluralism required a re-examination of “the legal relations that have served to bind to¬gether in common cause and common effort peoples of different races, different creeds, different social structures, and different ways of life”.
Cohen’s systematic pluralism was an attempt to articulate “a uni¬versal ideal (a common cause) that would include all particular sys¬tems of reference”. It accepted cultural pluralism, “but rejected separa¬tism, that is, the idea that different cultures were detached from each other”. It opposed the “forced assimilation of all cultural systems into one, but envisioned all systems becoming one”.
The heart of our democ¬ratic institutions is “an asserted right (of individuals and groups) to be immune from racial discrimination”. The “right to be immune from racial discrimination by governmental agencies” is an es¬sential part of the fabric of democratic government in the United States.
With the rise of totalitarianism in Europe, many liberals were moving toward “rights consciousness”. Cohen, who never disavowed his socialist convictions, adopted “a collective (or group), rather than an individualistic, conception of rights”. His systematic pluralism focused on the possibility that “any given value system could be ex¬panded to encompass other value systems”.
Human equality is grounded in the celebration of human differences. The state was not a neutral night-watchman but is charged with the “affirmative protection of group rights”.
Cohen focused on the expansion of systems and held that system¬atic pluralism was premised on the plausibility of “universal solu¬tions”. It admitted the particularity of different systems, but sug¬gested that “distinctions disappeared once all systems grew more in¬clusive, ultimately becoming one”.
Like his ideal of “systematic pluralism”, Cohen’s “comparative plu¬ralism” embraced the plurality of value systems, but rather than forc¬ing them into one encompassing mass, it focused on the possibility of “communication, dialogue, and translation between and among dis¬tinct systems”. Individuals should be allowed not only “to uncover the inarticulate value premises” of themselves and of others, but also “to understand the similarities and dissimi¬larities that exist between any two value perspectives,” and thus to become more tolerant of “cultural diversities.”
Later in his life, Cohen recognized that throughout American history, Indians were neither slaves nor vic¬tims; they were active agents, indeed sovereign peoples, with histo¬ries, traditions, and legal systems of their own, coexisting with the American system. They accepted the presence of non-Indians, they were capable of dealing with them, and they protected their own in¬terests. In Cohen’s opinion, the fact that Indians were able to deal with American settlers also suggested that dialogue and translation between different systems were possible—that comparative plural¬ism was feasible.
Interest group pluralism sought to evade the pluralist dilemma, that is, the need to determine the normative limits of a commitment to pluralism. On the one hand, to allow the state to exercise power over diverse groups risked imposing one’s own, concededly partial in¬terests and beliefs, in the name of a general, public good. On the other hand, the alternative of deferring to groups risked moral rela¬tivism, maybe even nihilism. Oliver Wendell Holmes challenged the description of law as a body of natural and neutral rules. Legal scholars have struggled with this dilemma. In the 1950s, interest group pluralism and the legal process school found refuge in creating conceptions of “neutral processes in which different groups supposedly interact, compete, and trade ends”. More recently, critical legal studies, the new institutional economics, and feminist legal theory have sought “to direct legal discourses toward substance and away from process”. The current resurgence of for¬malism keeps the debates alive.
