The Side Effects of Ritual

Oscar Chase thoroughly and concisely spells out the ways in which ritual, particularly in the American trial, helps legitimize dispute resolution processes and reinforce social values. I'd like to build upon his discussion by considering a few other ways in which legal ritual can both serve and disserve a society.

To begin with, meaningful legal practices are sometimes rendered ritualistic by repetition, in that they become divorced from the ideas they are supposed to represent and take on hollow lives of their own. As far as I know, this has become true to some extent of Miranda warnings; their ubiquity seems to have swallowed their meaning. I recall a friend of mine mentioning that he read that arrestees in other countries sometimes demand, on the basis of American TV shows, that police officers read them their Miranda rights. Leaving aside what this says about the perception of American law among certain foreigners, it's obvious that these arrestees haven't really thought about the purpose or content of the Miranda ritual. One can't help but be amused at the implicit suggestion that police officers are granting suspects certain rights by speaking them into being. And one can't help but be troubled at the prospect that the understanding of the average American arrestee, recidivists excluded, is not much more accurate or sophisticated. After all, how many suspects "waive" their rights to silence and counsel by acting on their natural impulses to deny or explain their behavior? More to the point, how many could explain more or less what Miranda entitles them to after suddenly hearing the list of rights formulaically recited by an antagonist in a stressful situation? I know I was confused when I first heard a policeman (on TV) forcefully declare "You have the right to remain silent!" to an uncooperative suspect; curiously, it sounded like a command, and I wondered whether suspects would be inclined to talk back to the assertion of authority. My purpose is not to criticize the Miranda decision but rather to observe that ritually induced ordinariness, in leading people to take practices for granted, can lead them to misconstrue, or fail to construe, them. Sometimes this unconsciousness is essential to the power of a practice, as in the various devices for elevating and depersonalizing the American judge, but sometimes it undermines a practice's purpose. In such cases the difficulty is avoiding ritualization and the mere formalisms that it begets.

Similarly, consider how ritual can mask the full significance of a practice or at least divert attention from it. Sally Falk Moore provides an excellent example of this in her analysis of the broader social function of Chagga disputing and dispute resolution. She observes that the common practice of instigating and "settling" a series disputes stemming from one underlying incident creates, or rather entrenches, social "losers," who are eventually forced to relinquish their land, a very scarce resource in Chagga society. These losers tend to be individuals who were already in disadvantaged positions in the Chagga social structure and were thus prone to being cheated, manipulated, or simply dissatisfied. Naturally, such people are more disposed to envy, ill-will, and illegal activity, which further degrades their status and credibility. This makes them ideal targets for accusations and conflicts culminating in ostracism and land-grabbing. Of course, the Catch-22 of the Chagga underclass is not a recognized phenomenon. Moore writes: "It is important...to recognize that the long-term significance is not at issue when a hearing is under way. From the point of view of the elders, what they are doing is instance-by-stance settlement." Thus the ritual confinement of Chagga dispute resolution to the matter at hand serves to ensure that harsh realities remain unspoken and perhaps unseen. Furthermore, the practice of morally blaming the loser assuages the conscience of the prevailing party in these typically internecine conflicts. Surely there are those who are aware of these inequities, but they cannot give institutional voice to their concerns. The upshot is that reform is impeded. It is worth exploring the parallels, however general, between the deficiencies of the Chagga system and those of our official dispute resolution mechanisms. For example, fairly strict rules of evidence – particularly those designed to protect litigants from the shortcomings of juries – provide that many considerations are off-limits in court despite being de facto relevant and, if known, inevitably taken into account. The "case or controversy" requirement, along with other judicial canons, narrows, sometimes artificially, the scope of decisions and can make a constitutional question the elephant in the courtroom. As Chase argues, concerns along these lines are partially behind the modern rise of alternative dispute resolution in the U.S.

Lastly, I'll note that ritual can distance people from the law, particularly those who are already socially removed from the elites who generally shape and practice the law. For instance, the rhetoric and conventions of appellate argument and decision-making surely engender more confusion than reverence among many observers, litigants themselves not excepted. This is not to suggest that it's worth sacrificing sophistication for accessibility, just that there's a nontrivial trade-off. An esoteric and formal legal system makes many people feel as if the rule of law, a hallmark of democracy, is rule from on high – from a different world, in a different language, and with a different way of seeing things. There's something to Chase’s observation that "[u]nlike the Roman Catholic Church the American courts have yet to abandon Latin in their regular public discourse."