Law, Laws, and Human Community

All I have is a voice
To undo the folded lie,
The Romantic lie in the brain
Of the sensual man-in-the-street
And the lie of Authority
Those buildings grope the sky:
There is no such thing as the State
And no one exists alone. . . . 

—W. H. Auden, September 1, 1939

The April 1989 Scientific American contains a report on the principal findings of a long-term study of the effects of adversity in early childhood on human development. The article recounts how an ambitious team of research psychologists undertook to study the entire group of children born in 1955 on the Hawaiian island of Kauai, beginning with prenatal histories taken from the mothers and following up on each child’s development at ages one, two, ten, eighteen, and again at thirty-one or thirty-two. The great interest of the study arises from the fact that, as the years went by, the researchers noticed that many of the children they had identified as “at high risk” (i.e., children subject to four or more serious disadvantages) were able to lead satisfying and socially productive lives as adults. Of the 698 children born on Kauai in 1955, 201 were in the high-risk category, exposed to various combinations of perinatal trauma, family discord, chronic poverty, and alcoholic, under-educated, or mentally disturbed parents. Yet one-third of these disadvantaged children “went on to develop healthy personalities, stable careers, and strong interpersonal relationships.”

Unlike the many studies that work backward through individual case histories to try to discover what caused or contributed to problems in adult life, the Kauai project sheds some light on what the researchers call “protective factors” that help children to thrive in spite of adverse early conditions. Not surprisingly, some of the factors that were found to assist children to become “survivors” are largely beyond the reach of law and public policy. For example, certain fortunate children possess, apparently even from infancy, qualities that enable them to elicit positive responses from others. And, as was already well known, children in general benefit from having at least one caretaker with whom they can establish a close bond, and from having structure and rules in the home environment.

What should be of interest to policy makers, however, is that several protective factors identified in the Kauai study are of a type that may be susceptible to social reinforcement. School, for example, played a crucial role in the lives of many of the survivor-children as “a home away from home, a refuge from a disordered household.” Many of the children also found opportunities for friendship, role models, mentors, and confidants in church groups, the YMCA or YWCA, 4-H groups, Boy and Girl Scouts, athletic groups, and the like. As the researchers put it, “With the help of these support networks, the resilient children developed a sense of meaning in their lives and a belief that they could control their fate.” Active participation in a church group was often a “critical turning point” in a child’s life.

By affirming the importance of surrounding and supporting communities to poor children and children whose home life is in disarray, the Kauai study challenges us to reflect on what might be done to shore up, or at least to avoid damaging, these structures. Significantly, the study found that neither formal social service agencies nor mental health professionals had contributed much to the development of survivor children. This led the researchers to suggest that “in many situations it might make better sense and be less costly as well to strengthen such available informal ties to kin and community than it would to introduce additional layers of bureaucracy into delivery of services.”

The Kauai children, like other Americans of their generation, were born just in time to experience the great demographic upheavals and the ambitious social programs of the 1960s. Although the relative isolation and the low geographic mobility of their island may have sheltered them somewhat from the winds of social change, the study shows that families on Kauai were experiencing the same stresses as American families generally. It was just in this period that, as Nathan Glazer put it in The Limits of Social Policy, we witnessed “the breakdown of traditional ways of handling distress,” ways that “are located in the family primarily, but also in the ethnic group, the neighborhood, the church.” Glazer, like many other observers, believes that in our mostly well-intentioned efforts to deal with the breakdown of these structures, “our social policies are weakening them further and making matters in some important respects worse.” Whatever the cause, it is undisputed today, over thirty years after the Kauai study began, that more American children are in poverty and in broken families than ever before.

This may well be so, a sympathetic lawmaker or policymaker might say, but how on earth does one strengthen family and community ties? When we begin to ponder this question, we encounter a scotoma, a kind of blind spot, in legal and political discourse. We have a highly developed apparatus for thinking about and dealing with the individual and the State, but we lack adequate concepts and even words for a legal-political approach to those intermediate institutions within which the personalities of men, women, and children are formed, and upon which human beings depend for support and self-realization. This deficiency is strikingly apparent in the Supreme Court’s church-state jurisprudence (where the landmark cases more often than not involve the family, children, and schools). Our legal system, and especially our constitutional law, tends to overlook informal communities of memory and mutual aid even though our society counts heavily on them to perform indispensable social functions.

II

Nothing is simpler than to point to deficiencies in the way our huge, increasingly heterogeneous nation grapples with the problem of delivering basic services to its needy members or to persons who, like so many of the Kauai children, are at serious risk. There is widespread disillusionment both with the characteristic reliance of liberals on government and of conservatives on the market to combat social ills. Charles Murray’s controversial manifesto, Losing Ground, fueled skepticism about ambitious public programs by documenting in some detail how poverty and other social problems have worsened over the period of greatest governmental attention to them.

But while Murray’s perception of the weaknesses of existing social-assistance programs is widely shared, his view that a “hands-off” policy is the best way to aid the disadvantaged is not. Thus, much reformist thinking tends to concentrate on how government programs might be made more effective. In this vein, Lisbeth and Daniel Schorr’s Within Our Reach describes a number of programs that have produced good results, tries to identify the features that made them work, and argues that we should try to replicate these scattered successes. The books by Murray and the Schorrs are fairly representative of the current state of the discussion, the first pointing to numerous program failures and suggesting the wastefulness and positive harm of government intervention overall; the second pointing to specific successes, and arguing for the necessity and feasibility of expanded government action building on them.

Largely ignored in the wrangling between liberals and conservatives over social programs are those structures of civil society that may be able to aid the disadvantaged more effectively in both economic and human terms than large-scale public or private bureaucracies. The debate has generally been framed as one between renewed commitment to government programs and additional spurs to individual self-reliance—a choice, that is, between faith in government and faith in the market. It may be, however, that both positions are partly correct—that we do need a renewed and increased commitment of our collective resources to relieve existing misery, but that, in the long run, we also need to empower people and communities to deal more effectively with their own problems. It does not follow, however, that governmental aid is best deployed by government agents or that the empowerment of individuals and communities is most effectively fostered by abandoning them to their own resources. If the welfare state needs individual citizens who can sustain a sense of obligation to strangers; if individuals, in order to develop a capacity for empathy and cooperation, need families; if families, in order to function effectively, need supporting communities of various sorts; and if communities are being eroded under present conditions, we may need to break out of the standard liberal and conservative frameworks. It may be that a long-range, ecological perspective is required in order to determine when and what kind of social intervention is required and when abstention or retreat is the better course to pursue.

The problem of inattention to communities of memory and mutual aid arises quite naturally from the fact that, for most of American history, there was no particular reason to pay special attention to them. They were just there, like gravity, on whose continued existence we rely, even though at some level of our consciousness we know that without it we would go flying off into space in all directions. In all likelihood, the Founders simply took for granted the dense texture of eighteenth-century American society with its economically interdependent families and its vital local townships. Whatever their own “enlightened” views on religion, our early leaders probably supposed that churches deeply embedded in community life would always be around, too. How could they have foreseen that family bonds would become increasingly fluid, detachable, and interchangeable as the family declined in importance as a determinant of individual standing and security? In their world, where four out of five (non-slave) men were self-employed, they could hardly have anticipated how many Americans one day would be dependent for their livelihood on large impersonal public and private organizations, or how much power these organizations would wield. Nor could they have imagined that religion would become for many an affair between a talking box and an individual alone in his room.

In referring to the Founders, I do not mean to visit the sins of the sons upon their fathers. The fact is that by the time stable families and communities could no longer be taken for granted in American society, the posture of law and government toward them had shifted from mere inattention to a more studied indifference. In our own time, by promoting individual rights at the expense of nearly every other social value in family law, labor law, and constitutional law, we have deprived families, churches, and other forms of fellowship of some of their mutually sustaining influences. Certain family-law and welfare reforms have been carried out, for example, with little regard for the ways in which they might appear to be discouraging personal responsibility. Urban renewal programs often carelessly wiped out entire neighborhoods and irreplaceable social networks. A “wall of separation,” erected between church and state, made it difficult for government to benefit from the experience and successes of religious communities in performing certain essential social functions.

Political factors, as Daniel Patrick Moynihan and Richard E. Morgan have pointed out, made it difficult to change course even when it became clear that something was amiss. Groups concerned, as Morgan put it, with “maximizing the provision of human services by the state (especially in education) and confining private sector institutions (especially the churches) to wholly private matters” gained in power and influence. The efforts of the education and welfare bureaucracies often seemed directed toward their own perpetuation more than toward meeting the needs of the populations they were created to serve.

Also contributing to an increasingly inhospitable climate for mediating structures have been the special characteristics of the technocrats who predominate in modern governments, political parties, corporations, and mass media. Operating at considerable remove from the life of the average citizen, such persons often lack strong ties to persons and places, religious beliefs, or tradition. Geographically mobile and deriving prestige, power, and satisfaction from their work, those who wield the most influence in modern societies are, as Robert Rodes has observed, often “very free in adopting measures that undermine the geographical stability and delicate communities on which others depend for practical and emotional support.” Much as Michael Dukakis during his 1988 presidential campaign wanted to dispel the stigma of the dreaded “L-word,” he could not bring himself to utter the “R” word. Thus, affirming his attachment to what he called “Old World values” to an audience at an ethnic festival in New Brunswick, New Jersey, he proclaimed, “Dedication to work, to family, to community, to neighborhood: Those are the values I believe in.” (So much for the old Democratic commitment to labor, family, church, and neighborhood.)

It is as though the principal actors in our legal system had put on special lenses that deprived them of the ability to see connections among various social systems and subsystems—all of them continually on the move. The writer of an unsigned article in The New Yorker, describing a feeling experienced at the funeral of a friend whose long and happy life had been spent as a wife and mother, caught it well:

What chilled me was a more general sense of the transformation of our society from one that strengthens the bonds between people to one that is, at best, indifferent to them; a sense of the inevitable fraying of the net of connections between people at many critical intersections, of which the marital knot is only one. Each fraying connection accelerates others. A break in one connection, such as attachment to a stable community, puts pressure on other connections: marriage, the relationship between parents and children, religious affiliation, a feeling of connection with the past, even citizenship, that sense of membership in a large community which grows best when it is grounded in membership in a small one.

So far as the legal system is concerned, its prevailing emphasis on “independent” individuality is disconcertingly at odds with the social reality of dependency and interdependence. The proportion of dependent persons in our society has hardly changed since the turn of the century. Even with the steady proliferation of various kinds of public assistance, services, and institutional care, families are still the major means though which society deals with persons who are not independent: the young, the aged, the sick, the severely disabled, and the needy. Caretaking itself begets more dependency, for the family members who perform caretaking services (mostly women) significantly impair their own ability to be self-sufficient in so doing.

What has changed in recent years, then, is not the proportion of the population that needs care-taking services, but the ability of families to deliver them. Our prevailing legal emphasis on the free, self-determining individual fits quite well with the series of economic and social changes that, by liberating so many of us from family and group ties, have dramatically affected the capacity of families to carry out all the tasks for which society continues to rely on them. Today’s two-earner and female-headed families have much more need for outside support systems than did the now-atypical homemaker-breadwinner household. The main burden still falls on women to raise children and to care for the sick and elderly, but most of these women are now also working outside the home at jobs where their pay, status, and security are inferior to those of most male workers. The position of these “dependent/caretakers” is doubly precarious: they have an insecure niche in the workplace and they are vulnerable to divorce at home. In this historically novel situation, no country in the world has devised a complete substitute for the voluntary provision of care, services, and income by family members.

Increasingly, then, families need help. But the same social changes that have attenuated family ties have also weakened traditional support systems outside the family. Despite much vague talk about “family policy” and “strengthening” the family, there is little reason to think we know whether and how law and government might be able to come to the aid of over-strained families. Debates framed in terms of a choice between intervention and nonintervention, however, do not seem particularly fruitful. They obscure the fact that modern governments cannot avoid influencing families, directly and indirectly, in countless ways. Conspicuously missing from political and legal discourse is the recognition that family members may need nurturing environments as much as they need direct aid, and that families themselves may need surrounding supportive communities in order to function in an optimal manner.

But are we not caught in a vicious cycle? With families and communities not only fraying at the edges but dissolving at their core, how can we not look to the State to take over some of the functions they once performed? But if individuals increasingly look to government for aid in distress, does this not further undermine families and other informal sources of support? At what stage are conditions in the primary groups of society so chaotic that they cease to produce men and women capable of cooperating in a collective enterprise and responding to the needs of strangers? At what point or points could one intervene in this cycle and attempt to reverse its direction?

III

The social sciences to which lawyers most frequently turn for enlightenment are economics and political science, the former reflecting our traditional deference to the operation of the market, and the latter our increasing preoccupation with the regulatory apparatus of the State. So far as most lawyers are concerned, the role of that branch of social science that deals specifically with civil society, sociology, is useful mainly for gathering statistical data. Yet there is a case to be made that law would benefit greatly from the insights of sociology, understood in its broad, European sense as the science of the basic phenomena and relationships of society in all its aspects.

This is not to suggest that sociology has a fund of knowledge that has hitherto gone untapped by arrogant social engineers. In fact, when social scientists contemplate the mutually conditioning relations among human development, family structures, law, commerce, and the overall culture, their situation is similar to that of natural scientists trying to make sense of such complex phenomena as the long-range weather or turbulence in fluids. Each contributing factor acts and is acted upon in such complicated ways or loses its own identity to such an extent that it is hard to assess the strength, or to predict the influence, of any particular element. Sometimes a minor disturbance at the margins of a system may have ramifications and manifest themselves only at distant times and places. “Chaos” scientists speak of this, half-jokingly, as the “butterfly effect,”the notion that a butterfly stirring the air today in Beijing may transform storm systems next month in New York.

Social science is similarly unable to tell us much about how to support, reinforce, or even avoid harm to ongoing, evolving, interacting families and communities. What it can offer to us, however, is an alternative way of thinking about the problem. Like Robert Bellah and his colleagues in Habits of the Heart, I find it helpful to use the term “ecological” in this connection, because it seems to me that the problems of protecting social environments are comparable in many ways to those of protecting natural environments.

Under contemporary American conditions, an ecological approach to social policy cannot be a simple laissez-faire policy. It would begin by taking communities of memory and mutual aid seriously. It would endeavor to identify and avoid activity that tends to undermine these social subsystems. Recognizing that we know little about what helps or hurts families and other communities, an ecological approach would proceed modestly, preferring local experiments to broad standardized programs. Its aim would be to establish conditions within which communities could flourish in their own way, rather than to attempt to direct the course of their development. Where possible, mediating structures should be preferred to large bureaucratic agencies for the delivery of social services. And, just as we have accepted the importance of monitoring and reporting on the impact of certain policies and activities on the balance of nature, we should try to do the same for endangered or fragile social environments.

Because we are not used to thinking this way, it may be worthwhile to spell out the basic elements of the case for more explicit attention to protecting social environments. Mediating groups are essential not only to the healthy development of individuals, but to the optimal functioning of a democratic political regime. They protect individual freedom by countervailing the power of large, impersonal public and private organizations, and by providing a buffer between them and the individual. They are also vital to the health of our collective political enterprise because, as Tocqueville pointed out, they serve as little “schools” where we acquire the habits of cooperation and self-restraint necessary for republican self-government. These habits are all the more necessary in modern societies where a high degree of interdependence among strangers co-exists with an economic system that emphasizes individual profit maximization and a political system vulnerable to interest-group activity. On a practical level, mediating structures can serve both individuals and the society at large by delivering many essential social services. As the Kauai study showed, they can be a mighty, present help to troubled individuals and families.

IV

There are many indications that we may be approaching an ecological turn in American social policy, especially so far as increased reliance on mediating structures for delivery of social services is concerned. Several of the federal social programs of the 1970s experimented with introducing important roles for local governments and non-governmental organizations as well as participation by the beneficiaries. An even more interesting experiment, however, was the 1981 Adolescent Family Life Act (AFLA) authorizing grants to public or nonprofit private organizations for services relating to adolescent sexuality and pregnancy. Known to its critics as “the Chastity Act,” the AFLA is actually more interesting for its method than its substance. Rather than adopting specific short-term approaches to problems of adolescent sexuality, Congress opted in this Act to authorize a series of grants for research and services directed to the discovery of fundamental causes and long-term remedial measures. Congress identified the following purposes: the promotion of “self-discipline and other prudent approaches to the problem of adolescent premarital sexual relations,” the promotion of adoption as an alternative for adolescent parents, the development of new approaches to the delivery of care to pregnant teenage girls, and the support of research and demonstration projects “concerning the societal causes and consequences of adolescent premarital sexual relations, contraceptive use, pregnancy, and child rearing.” Grants are not authorized for programs or projects that provide abortions or abortion counseling, or that actively promote abortion, nor for family planning services, unless such services are not otherwise available in the community.

Congress expressly endorsed the view that it was desirable to involve a wide variety of intermediate groups in the project, beginning with the family circle and extending outward to those associations that support families as well as individuals. Not only did the Senate Committee Report expressly acknowledge “the limitations of Government in dealing with a problem that has complex moral and social dimensions,” the Act itself affirmatively announced its intent to “emphasize” the role of family members, as well as religious, charitable, and other voluntary associations. Grant applicants are required to describe how families and “religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives” will be included in the proposed activities.

Funding under the AFLA went, as Congress intended, to a wide variety of recipients including state and local health agencies, private hospitals, community health associations, privately operated health care centers, and community and charitable organizations, many of them with ties to religious denominations.

In due course, a lawsuit challenging the constitutionality of the AFLA was brought on the ground that the inclusion of religious organizations among the participants violated the Establishment Clause. In a decision that is encouraging for the mediating-structures approach, the Supreme Court held (5-4) in Boiuen v. Kendrick that the AFLA is constitutional on its face, remanding the case to the District Court for consideration of whether it had been applied unconstitutionally in specific instances. By holding that the statute did not have an impermissible purpose, that its primary effect was not the advancement of religion, and that it did not require “excessive entanglement” between church and state, the Court sent a signal to the political branches that more creative uses of the structures of civil society (including churches) may now be permissible in the American welfare state.

According to Chief Justice Rehnquist, Congress’ 1981 decision to augment the role of religious and other organizations in tackling the social and economic problems caused by teenage pregnancy, sexuality, and parenthood reflected “the entirely appropriate aim of increasing broad-based community involvement . . . ” He went on to say, with respect to religious organizations in particular:

Nothing in our previous cases prevents Congress from . . . recognizing the important part that religion or religious organizations may play in resolving certain secular problems. Particularly when, as Congress found, “prevention of adolescent sexual activity and adolescent pregnancy depends primarily upon developing strong family values and close family ties,” it seems quite sensible for Congress to recognize that religious organizations can influence values and can have some influence on family life, including parents’ relations with their adolescent children.

Reviewing the Court’s checkered pattern of church-state decisions, the Chief Justice was able to pick out a few strands of practical reason. He pointed to the “long history of cooperation and interdependency between governments and charitable or religious organizations,” and to the fact that the provision of social services by religiously affiliated charitable groups has long taken place without controversy and with community support. He noted that “this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs.”

Justice Blackmun, writing for the dissenters, viewed the adolescent family-life program as involving an unacceptably high risk of “advancing religion at public expense.” Nevertheless, even he accepted that it is appropriate for government to support some social welfare services provided by religiously affiliated organizations, noting only that “there is a very real and important difference between running a soup kitchen or a hospital, and counseling pregnant teenagers on how to make the difficult decisions facing them.”

Another dissenter in the Kendrick case, Justice Brennan, has recently gone on record elsewhere as endorsing the importance of intermediate associations. In Bowen v. Gilliard, he criticized an AFDC regulation for its excessive intrusion on family relationships, saying:

In The Republic and in The Laws, Plato offered a vision of a unified society, where the needs of children are met not by parents but by the Government, and where no intermediate forms of association stand between the individual and the State. The vision is a brilliant one, but it is not our own.

And in Corporation of the Presiding Bishop v. Amos, Justice Brennan recognized that the law sometimes must attend to the conditions that communities require in order to flourish. Concurring in a decision upholding the right of a Mormon religious institution to discriminate in favor of its own members in making employment decisions, he said: “Solicitude for a church’s ability to [maintain its own definition of itself] reflects the idea that furtherance of the autonomy of religious organizations often furthers individual freedom as well.”

It thus seems that, even on our divided Supreme Court, a majority of judges (on both ends of the political spectrum) evince a growing appreciation of intermediate associations, including religious ones. But if there is some such consensus in the abstract, it can dissipate rapidly in specific cases. Though Justice Brennan waxed eloquent about intermediate associations in Bowen v. Gilliard, where the majority had given weight to “tradition” in preferring formal to informal family arrangements, he kept his enthusiasm well under wraps in the Adolescent Family Life Act case.

In the future, though, the Court may well reexamine the question of the extent to which church-related organizations may participate in government programs. In an ecological approach to the family and the institutions that support it, the school cases, especially, would benefit from reconsideration. The research of James S. Coleman and his colleagues confirms the finding of the Kauai group that, for a child whose family is weak or broken, a certain kind of school can make a remarkable difference. His most recent study, comparing 1,025 public and Catholic high schools, shows not only that the Catholic schools were more effective overall, but that they were especially beneficial to children from economically disadvantaged homes or where relationships between parents and children were disturbed. The study thus challenges the conventional wisdom that a more demanding school will improve the performance of students who are already performing well, but only at the cost of forcing out poor performers. Coleman’s explanation for the success of the Catholic schools with all categories of students is that the religious schools have “maintained their community” better than the public schools, providing both parents and students with “social capital.” He believes that these results hold for other religion-based schools as well.

With education and other social services, an ecological approach would favor local experiments, such as the pilot projects carried out in the 1960s with income maintenance. At this time there are simply too many unanswered questions to permit the adoption of standardized approaches. Would vouchers improve the ability of the educational system to respond to a broad spectrum of needs? Would they improve the ability of parents to control the education of their children (a right once said by the Supreme Court “to override the desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters”)? Would they have the side-effect of aggravating class differences or increasing racial segregation? Or the contrary? Would governmental conditions and supervision attached to government dollars undermine the very institutions they are meant to assist? Was John Stuart Mill right when he claimed that education is simply too important to be entrusted to government?

The Adolescent Family Life Act–whatever the merits of its underlying judgments about how to combat the problems associated with teen pregnancy–is an encouraging sign. Like the national labor relations legislation of the 1930s, it represents a significant Congressional effort to find a path between laissez-faire and direct state intervention into social relationships. It differs from the superficially similar “community-based” programs of the 1960s and ‘70s in significant ways. Like them, it looks to voluntary associations rather than government agencies to carry out a social purpose. But, while the community action programs of the Office of Economic Opportunity set out to “organize” communities, the AFLA contemplates implementation by functioning groups already (if precariously) in place. AFLA works from the bottom up, not the top down. Its express reference to religious organizations and families not only makes this clear, but indicates that a parallel aim, or at least an important by-product, of the legislation is the ecological one of protecting neighborhoods, churches, families, and other small-scale communities as such.

In assessing the legal prospects for mediating structures, I have mentioned the technique employed by Congress in the Adolescent Family Life Act, the receptiveness of the majority of the Supreme Court Justices in Bowen v. Kendrick toward that technique, and the openness even of the dissenting Justices to accord weight to the protection of intermediate associations as such under certain circumstances. It seems safe to say that the current Court may be a more hospitable forum for mediating structures than they have had in some time. Another promising sign is the fact that the current head of the executive branch paid eloquent tribute to voluntary associations in his speech accepting the 1988 Republican presidential nomination.

[W]e are a nation of communities, of thousands and tens of thousands of ethnic, religious, social, business, labor union, neighborhood, regional and other organizations–all of them varied, voluntary, and unique. This is America: the Knights of Columbus, the Grange, Hadassah, the Disabled American Veterans, the Order of AHEPA (American Hellenic Educational Progressive Association), the Business and Professional Women of America, the union hall, the Bible study group, LULAC (League of United Latin American Citizens), “Holy Name”—a brilliant diversity spread like stars, like a thousand points of light in a broad and peaceful sky.

It is indicative of the scotoma operating in our collective field of vision that many commentators on the acceptance speech professed themselves to be utterly baffled about what George Bush (or his speechwriter Peggy Noonan) could have meant by the “thousand points of light.” In the future, however, the speech may be seen as one element in a social turning point, a sign of the moment when our horizon expanded and when political discourse began to accord serious attention to communities of memory and mutual aid.

Perhaps this apparent increase in attention to families, churches, and other communities will amount to no more than a minor countercurrent in the Great American torrent of individualism and bureaucratization. But it is also possible that it may presage the development of an American third way between the harsh and unrealistic hands-off approach to social problems espoused by many conservatives, and the rigorously secular governmental programs favored by many liberals.

Consider, for example, how the problem of providing day care for preschool children might be approached in the future. At present in the United States, government has remained largely aloof. Thus we have a pretty good idea of what is yielded by the hands-off approach. Too much day care is being provided by persons for whom it is at best just another minimum-wage job, and too many children are simply left alone while the parent or parents work. Yet, if the only alternative is to turn pre-schoolers over to the same people who run the public schools, we seem to be caught between a rock and a hard place. Much more promising is the appearance here and there of day-care centers at the parents’ workplace, and day care provided by parishes and temples where it serves the triple purpose of providing meaningful work for members of the community (especially older people), meeting a pressing need of the community’s young couples, and beginning the religious education of the community’s children. This suggests a role for government, not as a provider, but as a supporter of the provision of day care by persons highly motivated to provide it. This role might be carried out not only by supporting the mediating institutions involved, but also, as in many European countries, by adopting measures that make it easier for a parent to remain at home for the first year or two after a child is born.

There is, of course, a formidable array of obstacles, pitfalls, and difficulties in the way of addressing social needs through expanded public attention and commitment to mediating structures. Some of these have appeared in the recent debates over day-care legislation. One bill would have permitted churches to receive public funds so long as they promised not to offer religious instruction as part of child-care programs. An alternative bill would not have exacted such a promise and would have proceeded through a voucher system. In this and other areas, it is to be expected that policymakers will find it hard to resist the temptation to tie government grants to governmental conditions. This entails the risk that the central mission of the recipients will be compromised, or appropriated for government purposes. Then, too, mediating structures, like other human institutions, are susceptible to corruption and abuse of power. There have been times and places where they became exceedingly powerful and oppressive. But under contemporary American circumstances, it is their very weakness that is a matter for concern.

V

In this essay I have argued for greater legal attention to the spontaneous institutions of civil society. I have noted instances of a dawning appreciation in the legislative, executive, and judicial branches of the social value and the unexplored potential of mediating structures. At the same time, however, I have called attention to the difficulty of trying to work out an “ecological” approach to social policy when we, like the chaos scientists, know so little about how to predict and influence long-term developments. It is much easier to experiment with delivery of basic social services by mediating groups than to discern what might be done to promote the health of such groups, or of smaller, primary groups that compose the “fine texture” of society.

So the basic problem is one of setting conditions, or to put it another way, of shifting probabilities. What little we know about how law affects and is affected by other social subsystems and the culture as a whole suggests that we should not hold exaggerated expectations of what law can accomplish on its own in this respect. But this is not to say that we should underestimate the potential of the law to influence, and sometimes to increase, the power of social trends. This observation, of course, brings us to the much-debated subject of the relation of law and morality and the conundrum of the common good in a pluralistic society. By accepting from Austin and Holmes an overly sharp distinction between law and morality, by largely abandoning the search for the common good, and by permitting individual liberty or equality to trump most other values, mainstream American law may have had a part in fostering a set of cultural conditions inhospitable to communities of memory and mutual aid. For law contributes in its own way to cultural schemes of meaning. This is what renders illusory and somewhat dangerous the notion that law can be completely neutral.

It may be that in a democratic, pluralistic nation, we must settle for what William Sullivan has called an “intermediate, political” conception of the common good as setting conditions for ongoing, potentially self-correcting, social discourse. A notion of the common good as fostering political dialogue and deliberation about the values for the sake of which we participate in civic life, in turn, would require attention to those groups within which we develop the capacity for such deliberation: families, neighborhoods, townships, workplace associations, and other communities of memory and mutual aid.

VI

This paper presents an approach to social and legal policy that would combine many concerns of both liberals and conservatives, that would work patiently toward long-range goals, that would embrace a dialogical notion of the common good, and that would seek to promote the general welfare by attending to the conditions under which individuals, families, and communities prosper. Like the analogous problems of protecting the air and water, this approach would require both a certain sense of the long run and a certain willingness to sacrifice, neither of which is easy to marshal in modern society. As in the case of natural ecological systems, the possibility exists that the task is beyond the capacity of law and government to affect for the better. If, in fact, our societies are producing too many individuals who are capable neither of effective participation in civic life nor of sustaining personal relationships, it is probably not within the power of law to reverse the process.

Nathan Glazer has recently written:

[There is much to be said both] for the insistence on a radical and egalitarian individualism, and for the defense of complex institutions and social bonds. . . . But if the first side wins out, as it is doing, the hope that social policy will assist in creating more harmonious social relations, better-working social institutions broadly accepted as the decent and right way to order society, cannot be realized.

It may be, however, that one reason that “radical and egalitarian individualism” often appears to be “winning out” is that it so thoroughly permeates that part of American law, constitutional law, where we tell the story about what kind of people we think we are. But as we have seen, the legal picture is becoming more nuanced. The legal system may, in fact, be in the process of correcting for an earlier over-emphasis on individual rights. It may also be the case that the individualism of our legal system is more thoroughgoing than that which exists in our culture. Though Robert Bellah and his coauthors found that the “first language” of Americans is the discourse of individualism, they also heard Americans across the country speaking communitarian “second languages,” languages of “tradition and commitment in communities of memory.” It is true that individuals in modern societies have been emancipated from group and family ties to an historically unprecedented degree, but it is also the case that most men and women still spend most of their lives in emotionally and economically interdependent households, and that government still depends largely on non-governmental organizations to care for the weak and dependent.

As mentioned earlier, unprecedented demographic changes beginning in the 1960s have put families, communities, and governments alike under great stress. The situation has been well summarized by the French demographer Louis Roussel:

It is rare in the history of populations that sudden changes appear simultaneously across the entire set of demographic indicators. More often, change appears first in one area and then with time, a general adjustment takes place, establishing a new equilibrium. Thus, for example, the decline of the death rate in the eighteenth century progressively entailed a general transformation of individual behavior and the relations between generations. What we have seen between 1965 and the present, among the billion or so people who inhabit the industrialized nations, is, by contrast, a general upheaval in the whole set of demographic indicators. In barely twenty years, the birth rate and the marriage rate have tumbled, while divorces and illegitimate births have increased rapidly. All these changes have been substantial, with increases or decreases of more than fifty percent. They have also been sudden, since the process of change has only lasted about fifteen years. And they have been general, because all industrialized countries have been affected beginning around 1965.

These demographic upheavals both reflected and promoted still more fundamental changes that have taken place in the meanings people attribute to personal and family relations, to work, and to life itself.

Writing of the intellectual turmoil and the breakdown of certainties that attend such a period of cultural crisis, the theologian Bernard Lonergan predicted:

There is bound to be formed a solid right that is determined to live in a world that no longer exists. There is bound to be formed a scattered left, captivated by now this, now that new development, exploring now this and now that new possibility. But what will count is a perhaps not numerous center, big enough to be at home in both the old and the new, painstaking enough to work out one by one the transitions to be made. . . .

This essay has noted many signs that the American center is making its voice heard. In the process of painstakingly working out the transitions from the old to the new, American heterogeneity may turn out to be a strength, rather than an impediment. Those very features that have made us different from other advanced welfare states, that have even made us seem “backward” at times–the variety of our racial and ethnic groups, the opportunities for creative innovation and experimentation inherent in our sort of federalism, our tradition of voluntarism, and even, within bounds, our attachment to a gambling, risk-taking, profit-making economy–may turn out to be conducive to the implementation of an ecological approach to social policy.

Mary Ann Glendon is a professor in the School of Law at Harvard University. This essay was first presented at a conference on “Christians, Jews, and the Free Exercise of Religion” sponsored by the Institute on Religion and Public Life in New York City.