System Alienation & the Capitol Riot

Written by Dr. Julie Macfarlane; originally published on Slaw, Canada’s online legal magazine.

As we watched scenes of violence, vandalism, and rioting at the US Capitol on January 6^th, there was an acute sense of loss of control, not only across the United States but throughout much of the world.

This was a brazen upending of the norms of respect and acceptance of institutional authority that lie, both symbolically and practically, at the heart of democracies around the world. The United States likes to call itself “the greatest democracy” but it is just one of many. Each is less than perfect, but a central article of faith is striving to honour public will at the same time as achieving stability and prosperity.

In every one of those other democracies, including Canada, we were all asking: could the same happen here? Or is it just those crazy Americans? (Begging your pardon, and full disclosure: I am married to one who is actually quite sane.)

I believe that some of the root causes of the riot at the Capitol – which will doubtlessly be pored over by historians, political scientists, and others for many years – are fully recognizable in our own country, and many others.

What was driving the rioters?

I am interested in what, not who. Donald Trump will soon be history, hopefully. But the conditions that made it possible for him to have so much power will not be.

Like others, I am painfully aware of the swing towards right-wing, anti-immigration, quasi-fascist political parties in parts of Europe and North America. The ideologies and individual ideologues this has spawned clearly provided the tinder for the spark here.

I am learning about the enormous impact of nutty conspiracy theories fanned by internet echo chambers, embraced by people who are compulsive, paranoid, and sometimes – as at the Capitol – willing to resort to violence.

But if, for a moment, we can put aside these disturbing and well-documented developments in political and social culture, what else can we extract from this event about motivations and grievances, albeit expressed in such an inchoate and aggressive way?

I am talking about the role of genuine loss of faith in a system – system alienation. This loss of faith in the “old” system is paired with a conviction that it has become the tool of elites and can no longer protect “ordinary folks.” This is much closer to home for us in Canada.

On the evening of the riot, I watched a news report from the BBC that contained a moment of footage that has haunted me ever since. In it, a man standing outside the Capitol wearing a Trump 2020 hat points toward the building and says, in a tone combining puzzlement and exasperation:

“The people who sit in that building are so separated – and many of them I think feel above us… If you look at the salaries of these people, and then you hear about all these millionaires who come out of that building… something ain’t right.” (BBC Newsnight, January 7, 2021)

Many or even most of those at the Capitol appear to hold much more extreme and dangerous beliefs than this man – but his comment struck me as relatable for a lot of people. How many people in Canada are there who share this feeling about political elites? My guess is that the numbers are large and that the feeling ranges across the political spectrum and across racial and ethnic groups. Of course, this does not and should never translate into violence. But the underlying sentiment expressed by this individual is not unknown to us in Canada.

How many feel the same sense of injustice and grievance about legal elites?

It’s not right and it feels bad

I know from my field studies, and from talking with, listening to, and hearing from thousands of Canadians who have found themselves obliged to go to court without a lawyer due to lack of funds, that this sense of injustice and grievance about the Canadian “justice” system is widespread. Sometimes this really scares me.

Not because these individuals are about to storm the Supreme Court of Canada with pitchforks. But because their experiences have left them with a deep sense of disappointment, disillusionment, and sometimes alienation.

Many, many self-represented litigants tell me that they look back on their original expectations – that a public legal system would offer them at least some assistance if they were unable to pay for full representation at $350 upwards an hour – as hopelessly naïve. That they have been shaken to their core to realize that the promise of “access to justice” is a hollow one.

Self-reps see “clubs” (of lawyers, of judges) that they don’t belong to and who are excluding them, intentionally or not, from their discussions about the “real” business of law. Exclusion has a lot of practical consequences. It means that self-reps see procedures unfolding that they do not understand and cannot meaningfully participate in; prejudicial and disrespectful treatment by club members (“…so separated…many of them I think feel above us”); and being on the losing side in an overwhelming number of cases where the other side has legal representation. It shakes their fundamental sense of trust in the justice of the system.

For some SRLs, their access to justice disillusionment and loss has a lasting impact on their mental health, family structures, and personal finances. Whatever “ain’t right” has a direct personal cost for them.

“My expectations? I can’t even remember my expectations anymore. My life just fell apart.” (2013 National SRL Study at p55)

Among the many differences between the Capitol rioters and SRLs (starting with their behaviour), is that the rioters have been egged on by misinformation, lies, and appeals to racism. SRLs’ system disillusionment is based on their own experiences and is a response to the reality of the legal system.

Alienation layered on top of prejudice

Failing faith in the legal system and lawyers is even worse for those who are shamefully, historically excluded from a white, cis, straight, male, able-bodied person’s system.

For Indigenous people, why would they ever imagine the settler system was going to treat them fairly? The same system that ignores their traditional laws and values? (As my colleague Professor Bev Jacobs says, “Indigenous people don’t call it a ‘justice’ system.”)

Why would Black and Brown people who walk down long hallways hung with portraits of white judges to reach a courtroom, and Black lawyers who are asked if they are the defendant each time they appear in court, feel confident that they are playing on a level playing field?

Why would people with disabilities, in particular those with invisible disabilities such as PTSD or brain injuries, believe that they will be accommodated in a way that enables their meaningful participation when the procedures are complex and opaque, and accommodations are often refused? “You look pretty good to me,” said one judge in response to an SRL with a brain injury asking if she could take notes for her future recall (2013 National SRL Study at p103).

I could go on (women, children, LGBTQ+ individuals, immigrants…), but you get the idea.

System alienation affects a lot of people who have used the legal system without counsel. Many SRLs are disillusioned and would say that they are resigned now to the reality of “access to justice.” Some are angry and frustrated. Others swing back and forth between these two states, sometimes for years after their legal matter has ended. They carry scars. They have lost their innocence, many tell me. They are now skeptics. They have lost faith.

“No matter how right your cause is, you do not get the justice you deserve because it is about your resources.” (2013 National SRL Study at p111)

Responding to system alienation

First, we must take this as seriously as it deserves to be. The possibility that our legal institutions and professionals may lose credibility with a significant sector of the population is a threat to stability and peace, as well as justice.

There is still time to do something to genuinely address the discontent and grievance of so many who expected to get access to justice, but did not. Over 20 years ago, legal sociologists Patricia Ewick and Susan Silbey developed a theory about the “reification” of law and legal institutions. “Reification” meant that that courts were widely regarded as authoritative “things,” on a separate conceptual level from particular actions or experiences. It meant that that law was seen as a system to which we give up power, excusing flaws because of the importance of accepting its authority. Despite some rough specific experiences, those using the courts saw judges and laws as transcending everyday life, the here and now, and imbued with a special higher status.

But it’s not the same now.

We need to listen to those who have been disappointed and wounded by the legal system and its officers. At NSRLP we have convened two moving and significant “Dialogue Events” where groups of 60 judges, lawyers, policymakers, and SRLs have spent two days talking to one another. We need many more such events, perhaps on a regional basis. (And to anyone who says, “we get it now, we don’t need more” – if you can claim this then you don’t, and even if you did, listening is still critical.)

We need more feedback projects of the type NSRLP is increasingly being asked to do to provide data to courts and government from system users. What would the system they want look like? How can we design it for the users, rather than continually reinforcing and shoring it up for those who work inside it?

We need to take some risks with innovation. Of course, we don’t know how some of the ideas proposed for modernising and simplifying the system will work. We have to try them first, collect data, and evaluate. We can’t keep saying (and members of provincial law societies, I am looking especially at you here), “we don’t think X or Y will increase access to justice,” when we have never actually tried X or Y. If there was one simple solution, we would have found it by now.

Finally, we need to rebuild trust between insiders and outsiders in the legal system. If we want a legal system that is respected and accepted – and its ongoing flaws accepted as we work without preconceptions to fix them – we need to do everything we can to commit to trust-building. This requires transparency, honesty about the problems, and an acknowledgement that for far too long the insiders have run the show, confident that they have all the power.

But if we assume that we are safe in our institutional superiority, our importance as lawyers and officers of a once “reified” court, we only play into the hands of those who would incite violent responses to grievances.