Dragan Milovanovic* Jim Thomas

Criminal Justice Dept. Department of Sociology

Northeastern Ill. Univ. Northern Illinois University Chicago, IL 60625 DeKalb, IL 60115 (28 April, 1988)

*Authors are listed in alphabetical order.

Address all correspondence to Jim Thomas.

A version of this paper appeared in SOCIAL PROBLEMS. 1989.

36(February): 48-60.

When conditions of existence become unsatisfactory, people may either acquiesce or resist. One reform strategy that has come into vogue since the social activism of the 1960s has been the use of law. Are those who use law in attempts to change the conditions of social existence rebels, revolutionaries, or merely ineffective idealists? Drawing upon themes in existential literature as a heuristic guide, we address this question by looking at one category of active litigants, prison jailhouse lawyers (JHLs). Exiled and powerless, prisoners have relatively few ways to resist either the control or the conditions imposed upon them by their state keepers. JHLs, however, actively resist prison staff and authority, and variously have been perceived as sociopaths, opportunists, victims, predators, or rebellious heros. In this paper, we ask whether JHL activity constitutes a form of rebellion, or whether it instead reflects little more than individual catharsis of no substantive consequence. We conclude that jailhouse lawyers and, by implication, other activist-oriented litigants, may be something less than "revolutionaries," but deserve the title of primitive rebel.

What is a Rebel? A man who says no, but whose refusal does not imply a renunciation. He is also a man who says yes, from the moment he makes his first gesture of rebellion (Camus, 1956:13).

When conditions of existence become unsatisfactory, people may attempt to change them. Change occurs in many ways, including rebellion, revolution, or reform. One reform strategy that has come into vogue since the social activism of the 1960s has been the use of law. The efficacy of legal reform, polarized particularly by the debates between radicals and liberals, has centered on whether law is an effective means of attaining fundamental change, and whether those who engage in such activities are actually resisting oppressive conditions, or whether they are self-deluded. We focus on the second issue by suggesting that, even if legal reform does not engender profound social consequences, the acts of those so-engaged must still be recognized as a form of rebellion against an absurd environment.

Existential literature evokes a theoretical imagery of action-taking in which individuals confront their environment, even if the confrontation appears futile. Conventional social theory tends to look for "laws" or "processes," and too-often ignores the meanings by which the concepts underlying research are shaped and defined. When individuals confront conflict with counter-conflict, they may give meaning both to their existence and their actions by creating dissonance (Goodman, 1971: 843), regardless of whether they are successful in ultimately altering their conditions. The anti-anti-heros of existential literature typify this reaction to absurdity.

Goodman (1971) has argued that the "literature of the absurd" offers a set of heuristic concepts that provide new meanings into actions by recognizing them as a dialectic between freedom and constraint, passivity and resistance, and interactional and institutional forces:

Man, in this literature, is viewed as attempting to function in an environment continually steeped in contradiction from which there is no possible meaningful resolution. All that remains for him is the realization, that, the conscious ascertainment, that the final and definitive synthesis'the "good life"�is an impossibility. Choosing to act in the face of this realization, it is argued, becomes the determinant of man's freedom. In other words, man's choosing to act, with the definite understanding that his action will resolve nothing, is what determines his freedom (Goodman, 1971: 832; emphasis in the original).

The concept of absurd existence suggests that social life is inherently permeated with conditions for which there often seem no rationale solution. In the main, the dilemma of absurdity centers on the tension between freedom and constraint in a social world comprised of ambiguous rules, mysterious forces, and no immediately observable remedy. One absurd aspect of the human condition lies in acquiescing to conditions of existence that promote unnecessary social domination. We agree with Goodman's (1971) argument that confronting institutional absurdity may be a way of rejecting the status quo and transcending existing definitions of power and authority. Our discussion proceeds from the premise that social existence can be read like any other text, and that the concept of "the absurd" provides one useful exegetic tool for interpretation. Borrowing from Esslin (1961: xix), by absurd we mean a condition of existence out of harmony with reason, a set of circumstances devoid of ostensible purpose that makes behavioral choices futile. An absurd existence is one in which we are unable to discover the meaning and significance of our social world. Activity rooted in reflexivity, self-affirmation, collective development, and social praxis (or world transformative activity), are, as a consequence, impossible.

If social existence is absurd, then meaning and purpose in the social world of prisons are even more so:

The inmate is faced with certain dilemmas in his relation with those in positions of authority over him. He continues to exist in an atmosphere of subjection, at best paternalistic, at worst repressive and arbitrary. The best way for him to achieve is goal of getting out as soon as possible remains conformity and passiveness on his part toward the prison system. He is expected, however, to stress self-determination and individual responsibility as a rehabilitative goal (Fairchild, 1977: 313).

Prison life becomes an allegorical analogue to other forms of social existence in which the potential to act is obstructed and social actors remain powerless relative to their potential to engage and transcend their circumstances. Volitional behavior suppressed or pacified leads only to organizationally determined identities; one becomes what the environment dictates. Prisons

typify an absurd environment that smothers the psyche and the will to act meaningfully (by conventional standards). Even in rare occurances of willful productive behavior, the prison

labeling process may redefine behavior as something other than it is[1]. There, caprice reigns, rules have multiple and contradictory meanings, good acts may be punished, those

responsible for the rule of law violate it, and those who have violated the law may attempt to enforce it. Never mind the literal language or purpose of existing rules, which are not easily to be found, and if found, are often ignored by the enforcers[2].

Within a prison environment, however, there exist some ways to attempt to mediate absurdity with reason. In one of these, litigation, jailhouse lawyers (JHLs) find law an occasionally effective, but more often frustrating, way of restoring meaning and order to chaos. Litigation attempts to transcend the immediate structural configurations that seem randomly constructed or maliciously applied. The repressive configuration of forces is challenged, given verbalized expression, and progressively altered. Absurdity is made visible by the kept, which requires the guardians of the institutional machine to pause and take note that something is amiss. Although Milovanovic (1987a) has cautioned against romanticizing the JHL as a primitive rebel, he nonetheless clearly articulates the central concern that we take up here:

Is the jailhouse lawyer a "primitive rebel," or have many overly romanticized the phenomenon? Does he obtain liberation from the form of law itself? Or, are jailhouse lawyers inadvertent contributors to the production of the rule of law ideology. . . . A study of jailhouse lawyers and jailhouse lawyering may also tell us something about praxis within a tightly controlled environment which may in turn enlighten reform movements in the free world (Milovanovic, 1987a:

1).

To consider the possibility that those who use law, especially JHLs, are primitive rebels in no way imputes to them an existential consciousness, and does not suggest that they are striving toward authenticity as a coherent philosophical or political act. We are more concerned with the broader social meanings of litigants' actions independently of any intent or self-awareness, as a means of rethinking issues of social formation and conceptualization of the meaning of social action. In this paper we ask whether litigation resembles the futile labors of Sisyphus: Is the use of law to challenge prison conditions or policies a form of heroic rebellion or Quixotic delusion? At stake is not simply the meaning of JHLs' litigation, but of all those who use law as a means of social struggle.

Our data and observations come from our collective experiences in prison research and from our work with prisoner litigation since 1980. These include numerous interviews with jailhouse lawyers and other litigants, analysis of litigation trends, and examination of litigation's impact[3].

In the past two decades, state prisoners have increasingly turned to federal courts in attempts to resolve private troubles in public forums. This is called prisoner litigation. Critics of prisoner litigation contend that prisoners sue primarily because they are either unwilling to accept their conviction or because they wish only to hassle their keepers by "abusing the law."[4] However, those who challenge policies or conditions to which they object do so for a variety of reasons, many of them honorable (or at least no less so than their litigious civilian counterparts).

There are two types of litigants. First are those prisoners who file a single suit during their entire incarceration, and who generally require the assistance of others to do it[5].

The second are those who make a prison career out of law. These specialists are called jailhouse lawyers. We can further collapse JHLs' activity into two general types. The first, and least numerous, is comprised of prisoners who use law primarily as a means of obtaining rewards from other prisoners and who are concerned less with law and resistance and more with exploiting the ignorance and powerlessness of others. Sometimes, jailhouse lawyering is but one of their predatory skills. This type is universally criticized by the competent JHLs, because it not only makes their own tasks more difficult, but also tends to make "bad law" (Thomas, 1988a: 222-224).

The second type concerns us here. These are the prisoners who have a love for law and an intolerance both for the absurdity of prison life and the abuses of staff power that exacerbates it. They not only sue on their own behalf, but generally serve as the gatekeepers between prisoners and federal courts. Although often litigating on their own behalf, they more commonly help others by determining whether a complaint is adjudicable, identifying the relevant legal and substantive issues, and shaping the case narrative in what is judged to be the most persuasive story. The most talented JHLs attempt to link a particularistic issue that affects only a single inmate into one that may ultimatly affect broader prison policies[6].

A jailhouse lawyer, then, is a prisoner knowledgeable in law who helps other prisoners with their legal problems. These legal problems are diverse, and can include preincarceration problems (with landlords, employers), family problems (divorce, child custody) or postconviction complaints. However, perhaps the dominant area of help lies in assisting inmates with grievances against jailers[7].

The invisible is made visible; the "rational" is shown to be irrational; and publicly stated justice goals are rendered contradictory. Is it any wonder, then, why criminal justice personnel are so prone to perpetuate the myth of the "frivolous case" or the "abusive litigant?" What keepers cannot win in court, they attempt to win through their power of definition and demagogic appeals to public opinion (c.f., Thomas, 1988a, 1988b;

Thomas, Harris and Keeler, 1987).

Because we embed our analysis in a structural context, we are not so much interested in determining personal motives or in identifying why an individual may litigate as with the meanings of litigation as it reflects social resistance. Whatever the material consequences of their enterprise, litigation possesses symbolic meanings that signify deeper layers of involvement in social existence. It is these symbolic meanings that derive from the context of its enactment that impels us to view the JHL as a primitive rebel.

All too often and all too simply, the meaning of prisoners' reactions to their conditions of confinement is interpreted as little more than the episodic volatility of irrational outbursts. Some prisoners who react to the absurdity of their environment may fit this perception. However, most do not, and some of these react to their existential plight by challenging their keepers through law.

Explanations of behavior within a prison culture typically proceed from one of three general models. Conventional researchers have tended to examine prisoner behavior as the consequence of either a set of norms or values imported into the prison from the streets (the "importation model"), or as a reaction to the deprivation of prison conditions (the "functional" or "deprivation" model). Some Marxists'especially in the mid-1970s'tended to view prisoner activists as the vanguard of revolution. None of these views strike us as helpful. We find the importation model unsatisfactory in understanding the relationship between prison culture and litigation, because the tendency to litigate seems to emerge sui generis from the prison experience, and we see behavioral variation among prisoners differing by educational levels, racial composition, political sophistication, crimes committed, and world outlooks. Further, neither the legal skills nor the predeliction to litigate typify characteristics, skills, or values learned in the streets. Legal expertise is simply not a trait imported from the outside[8].

The deprivation model seems equally unsatisfactory. Granted, litigation is a response to debilitating conditions (Thomas, 1988a), and granted, new forms of debilitation may arise as old ones are eliminated. But, the choice to litigate instead of pursuing other "often less productive"forms of behavior cannot be explained by deprivation alone. There are numerous alternatives to litigation as a response to deprivation[9]. This view also glosses over the complexity of the culture by attributing more homogeneity than actually occurs (Thomas, forthcoming). While we recognize the role deprivation plays in shaping prison culture, we do not find it a particularly helpful concept in illuminating the meaning of litigation as a form of accommodation to prison existence.

The Marxian "revolutionary" view also lacks merit, because there is no evidence that JHLs, in the main, possess a "revolutionary consciousness." In fact, most suits are neither motivated by nor developed with any consistent or obvious political agenda (Thomas, 1988a: 117-119; Milovanovic, 1988a). The past decade has clearly belied the belief that prisoner activists have surpassed mere Dasein to become a "class for itself." This view does little more than romanticize prisoners without adding to our understanding of either the nature or meaning of litigation.

We suggest that prisoner litigation may reveal a deeper motive, one embedded in resistance to the absurd. This does not imply a conscious recognition by the prisoner of the motive. On the contrary, in many ways, prisoner litigants resemble the protagonists in existential literature "both the winners and losers"in that they are surrounded by mysterious forces that threaten to overwhelm them, yet do not readily acquiesce. Prisoner litigation, then, is a form of overcoming, of actively dealing with irrationality, of attempting to make sense of the senseless, and a yearning to be human in an inhumane environment. Take, for example, a guard commanding the inmate to obey an order that seems to have no legitimate basis in existing rules, such as standing in a given spot for the officer to return. The inmate asks, "Why?" The guard: "Because I said so!" After an hour, the inmate leaves to perform assigned tasks, and is later disciplined for not remaining. "Why was I disciplined?" asks the inmate. The guard: "Because you violated the rules." Then take a second example, one in which the inmate was told to wait for a guard to return. The inmate asks, "Why?" The guard: "Because I said so." The inmate waited, and when the guard returned after nearly an hour, he disciplined the inmate for not reporting to a work assignment. The guard reasoned that, considering the delay, the inmate should have realized that the guard would not return as planned[10].

This escalating merry-go-round of absurdity has one clear end: The inmate is given a disciplinary ticket and later unsuccessfully attempts to explain this absurdity to a disciplinary committee, and the explanation ("I was told to stay, but the guard never came back") ultimately indicates guilt, and punishment follows with a well documented explanation: "Rule infraction." The absurdity of both the situation and the consequences remain. For the JHL, however, the matter does not end. JHLs refuse to submit to absurdity, and herein lies our agreement with Hobsbawm that JHLs, like the social bandits he studied, resemble primitive rebels:

The point about social bandits is that they are peasant outlaws whom the lord and state regard as criminals, but who remain within the peasant society, and are considered by their people as heroes, as champions, as avengers, fighters for justice, perhaps even leaders of liberation, and in any case as men to be admired, helped and supported (Hobsbawm, 1969: 13).

Camus (1956: 13) has argued that any act of rebellion begins with the word "no." The tragedy of Joseph K., existentialism's ultimate victim in Franz Kafka's The Trial, lay both in his inability either to act or to say no[11]. This fatal flaw turned an otherwise common, law abiding, and middle class citizen into a pathetic victim whose demise creates hardly a ripple in the social setting in which he lived. Joseph K. objected to, yet accepted and continuously recreated, the social relations that ultimately destroyed him. The momentum of absurdity, once generated, runs its own course; those inserted within its coordinates have either to acquiesce in the process giving further sustenance to its continuance or to oppose and, by doing so, deny its logic.

Acts that bring with them fatal penalties, however, are not necessarily self-destructive acts. The irony of such mythic anti-heros as Sisyphus lies not in their ultimate punishments, but that the punishments symbolize a victory of self-affirmation:

A self affirmed through punishment, at least, is one answer to responding to absurdity. Would it be, they ask, more rational to resign one's self simply to melting into absurdity? Sisyphus, the liar, murderer, and thief, was judged guilty by the gods for refusing to accept the imposed social order and condemned to futile labor:

The gods had condemned Sisyphus to ceaselessly rolling a rock to the top of a mountain, whence the stone would fall back of its own weight. They had thought with some reason that there is no more dreadful punishment than futile and hopeless labor (Camus, 1955: 88).

His heroism lies not in the behaviors for which he was punished; who, after all, would romanticize predation? Rather, it lies in his subsequent rebellious spirit and opposition. Like some contemporary prisoners'both those formally incarcerated and others chained by bonds less visible, Sisyphus resisted, but at a price:

His scorn of the gods, his hatred of death, and his passion for life won him that unspeakable penalty in which the whole being is exerted toward accomplishing nothing (Camus, 1955: 89).

The efforts of the JHL often seem as futile as those of Sisyphus when their labor produces nothing of consequence, or when the pinnacle of success looms near, but disappears only to be sought anew. Some observers contend that this lack of consequence, combined with their social stigma, do not indicate existential rebellion at all. To these objections we next turn.

To judge JHLs (or other litigants seeking change through law) as primitive rebels, we must first overcome a number of arguments, many of which have merit and cannot easily be dismissed. The status of these arguments varies. Some come from radicals, who criticize prisoner litigation as little more than the subversion of democracy by the state (e.g., Mandel, 1986). Others come from conservatives who view litigation as a mockery of justice that promotes crime (e.g., Bator, 1963). Although diverse and not all compatible with each other, these views are held together by the premise that there is more to rebellion than "saying no."[12] Among the most prominent include the following.

It is clear that the appearance of prisoners' rights can be used, avoided, or manipulated by cynical staff in ways that simply perpetuate the problems under a cloak of "legal legitimacy." Neither a revolutionary nor a rebellious consciousness is encouraged by litigation, and in fact,

litigation may hinder reform (Brakel, 1987; Mandel, 1986). Hostility is blunted or channeled, prisoners are worn down, and a critical consciousness is perceived as "not worth the trouble."

This process occurs through a type of "psychological extortion" shaped by several factors. First, most JHLs begin as paid law clerks, hired by the institution. Obtaining and holding the job depend largely on the willingness of the JHL to "follow the program" and not be disruptive, and a JHL can be removed from the position or from adequate access to legal resources at a whim. This discourages many from becoming overly aggressive in challenging prison policies or actions. Second, by consenting to the JHLs and their practice, the state minimizes violence and hostility, largely because of the collusion of JHLs in trying to prevent disruption: Both highly controlled and chaotic institutions subvert their enterprise, and this contributes to cooptation by adhering to a form of "professional conservatism" that contributes to a preference for at least some aspects of the "status quo." The model of doing "good law" becomes increasingly like that of most civilian counterparts. Much like the disempowered in other settings, such as mental hospitals where the patients often make use of the keeper's elite discourse (psychoanalytic jargon) as a weapon to equalize social position, so, too, does the JHL seek to emulate the goals and juridic discourse of civilian practitioners. Finally, the JHL identity is tied to a view of professionalism which they view as stringent and honorable as civilian lawyers. This "professional identity" places them squarely within the camp of those who would maintain the status quo.

At best, prisoners are, in Marxian terminology, a "class in themselves," not a "class for themselves" as required to justify even the label of primitive rebel. Neither prisoners nor their suits possess any potential for linking the prison experience to broader social relations as a mediating weapon for legitimate class conflict. As a consequence, the sobriquet of "rebel" tends to romanticize the JHL and divert social struggle from more "politically correct" activity. There are few, if any, attempts at alliance with other groups (labor, women, gays), the concept of "political prisoner" is ignored, and JHLS simply do not struggle for broader social, political, or economic change. They are grounded in the immediacy of their existence, and fail to recognize or employ law as a mediating strategy, and, at best, their activity is pragmatic, not political.

Each of these criticisms raises critical questions not only about the ontological status of prisoner struggles, but about the practical utility of law as a weapon in social struggle. We agree that prisoners are a "class in themselves," that legal discourse and action is a repository of reified ideological control, and that debits of litigation should be added to the ledger balance. But, we also contend that litigation activity reflects a form of social activity that, at root, reflects legitimate rebellion.

The objections to viewing the JHL as a rebel, although sometimes cogent, tend to neglect the subtleties of the meaning of litigation as both a means of change and as a form of existential negation. In the following sections we will clarify our position in light of these critiques, and will argue that the JHL is, indeed, a primitive rebel.

Rebellion defines the relationship of an act to its context, not a consequence or a motive. It begins when one moves from passive acquiescence to active resistance against forces that threaten to dominate or overwhelm. Sometimes resistance is sophisticated, as occurs in social movements or in such individual acts of defiance, refusal to pay taxes or terrorism. Other times, rebellion is more subtle, as occurs when people reject the authority of the state by exceeding the speed limit or refusing to wear seat belts. A prison rebel is not a revolutionary:

"Revolutionary" action is defiant action that seeks to change the prison structure or its relation to the external environment in a fundamental way. The most important factor associated with revolutionary action is identification with defiant counter communities (Useem and Kimball, 1987: 106).

A primitive rebel, then, is one who has learned to say "no" and intentionally resists authority, but has not yet developed a consciousness capable of translating action into a consistent critical theory or systematic ideologically informed assault[20].

Several objections of those who find little rebelliousness in the JHL enterprise must be taken seriously[21]. First, one must be chary of romanticizing the legal practitioner, lest litigation behavior be falsely elevated to the archetype of political activism. Law, despite its utility, does not engender dramatic structural changes. Hence, the use of law in changing prison conditions is, at best, modest. Second, some critics correctly suggest that even reform occuring through litigation may increase coercive control by strengthening legitimate prior practices or by masking existing illicit ones under "color of law." Finally, the dual character of the rule of law means that, even if changes occur, the sanctity and authority of prison administrators is presevered, albeit in a different form or by a new discourse. However, one set of truths does not obviate others. Recognizing litigation as an act of existential rebellion allows understanding litigation as a dialectical process that creates and mediates the contradictions of prison power, culture, existence, and transcendance. The following reasons guide our judgment that the JHL is a primitive rebel.

4. Subversion of hierarchy. Critics correctly claim that prisoner litigation does little to challenge the fundamental structures of the prison power hierarchy. However, it does not follow that there has been no impact on the exercise of power in prisons. An act of rebellion begins with a refusal to accept the power one has over another. Among the meanings of prisoners' suits is a challenge to the power commissions or omissions of staff. When, for example, the staff at a federal facility in Chicago failed to furnish adequate lighting for cells, a suit led to installation of a totally new lighting system. When a women in a co-sex institution became pregnant by another inmate and was punished by loss of one year's goodtime while her male partner was not, a civil rights suit challenged the decision. When staff refused to properly deliver an inmate's legitimate mail, a law suit corrected the problem for that inmate.

Each of these examples seem relatively trivial in the scheme of things, but all typify the types of inmate civil rights complaints. They also symbolize acts of refusal to the power of officials to control existence. In such cases, law mediates the domination of staff power, and although it does little to rearrange or redistribute power, it imposes constraints on the ability of staff to exercise it. Resistance, then, may not often change the power hierarchy, but it does rearrange the use of power within it[27].

5. Do prisoners "win?" From the popular view that prisoners rarely win their cases follows the judgment that if prisoners are rebels, they are certainly not effective ones. We do not accept the argument that to be a legitimate rebel one must "win." Nor do we find convincing evidence that prisoners rarely win. Of course, what counts as a victory for one person may be perceived as a defeat by another. The conventional method of scorekeeping simply calculates the number of cases won and lost by prisoners, a method that, for several reasons, we find unsatisfactory.

First, if prisoners' suits reflect rebellion, the measure of success must be determined, at least in part, by whether the suit curtailed or corrected the objectionable behavior. A prisoner who sues staff for $1 million for an improper conviction in a disciplinary hearing may have the case dismissed on pleading, but may nonetheless have the improper conviction expunged from the record and any lost goodtime restored. A prisoner who is injured because of staff's recklessness may opt to settle for remedial action or token damage awards out of court. Official records record these as "victories" for state defendant's (Thomas, 1988b), but, in fact, the prisoner's challenge has resulted in a consequential form of resistance.

Second, although prisoners rarely win all that they request in a suit, we do not easily concede that they lose in the legal forum. In a study of 2,900 cases in one litigious federal district, Mika and Thomas (1988) found that while about 38 percent of prisoners' complaints are dismissed on pleading, about 62 percent of those surviving result in a "victory" of some kind. The outcomes, usually settled out of court, may result in token damage awards, but more often are in the form of rectification of the original problem, modification of prison policies, or simply discouraging staff from continuing the objectionable behavior toward the plaintiff[28].

Third, as one experienced JHL argued, "Just the doin' of it, we win!" In this view, litigation can provide a symbolic victory to the extent that, even if lost, it makes staff aware that they may be accountable for future actions[29]. As a consequence, we conclude that if we accept the argument that "resistance plus winning" defines a rebel, then JHLs have earned the label.

6. Subversion of "revolutionary praxis?" We agree that jailhouse law does not reflect a sophisticated form of rebellion, let alone "revolutionary activity." However, we fail to see the importance of this distinction to our position. Contrary to some of the radical writings both of academics and prisoners in the 1960s and early 1970s, prisoners, with rare exceptions, are simply not fertile breeding grounds for raising political consciousness[30]. The rhetoric, and even a rudimentary understanding, of a radical analysis may exist, but this does not translate into a "class for itself." Although some individual JHLs may possess considerable legal and theoretical sophistication, en masse most are oriented toward resolving the mundane problems of the prison world.

What, then, is the political value of jailhouse law? The answer to this question lies in how one views the role of law in social change. While conceding the lack of a consistent collective political consciousness, we at the same time conclude that, in the aggregate, prisoners' use of law has been a useful tool as social praxis to affirm the act of saying no. Even while reinforcing the ideology of the rule of law, prisoners simultaneously subvert existing power arrangements. The problem is not that law is ineffective, but that the effectiveness of law is misdirected. As Klare has written in defending "law-making as praxis:"

My argument is that we can conceive law-making as, in theory, a form of expressive social practice in which the community participates in shaping the moral, allocative, and adjudicatory texture of social life, but that in class society, this process is alienated. In history, law-making becomes a mode of domination, not freedom, because of its repressive function (Klare, 1979: 132 emphasis in the original).

As a consequence, the utility of jailhouse law is not unqualified, because both its content and its form of expression recreate and sustain the broader class and other power arrangements that lead to unnecessary social domination. As Klare (1979: 135) has suggested, the exercise tends to promote the instrumental pursuit of client or self interest at the expense of "political lawyering." But, this flaw should not lead us to dismiss the JHL, but instead to recognize litigation's limitations and overcome them.

We essentially agree with those who recognize that prisoners are not generally political conscious. By conceptualizing litigation as more of an existential than a political act, one that may be viewed as a continuum ranging from extreme individualism to sophisticated political action, we have attempted to reframe the meaning of activist law, and applied our analysis to one category of litigant. At one end, lie those who acquiesce. On the other stand those who resist: In prisons, these are jailhouse lawyers. But, the JHL is a "doer," not an ideologist; a reformer, not an articulater of system-generated repression; a person who has come to understand how to respond to absurdity with existing tools, without developing the broader political or social understanding to use those tools to address the meaning and embeddedness of existence. The efforts of the JHL lie somewhere between conscious and reflective behavior and what Kosik (1976) has called procuring, or mundane social activity:

The individual moves about in a ready made system of devices and implements, procures them as they in turn procure him,and has long ago "lost" any awareness of this world being a product of man. . . . . . .

Procuring is praxis in its phenomenally alienated form which does not point to the genesis of the human world (the world of people and of human culture, of a culture that humanizes nature) but rather expresses the praxis of everyday manipulation, with man employed in a system of ready made "things," i.e., implements. In this system of implements, man himself becomes an object of manipulation (Kosik, 1976: 39; emphasis in the original).

The JHL has gone beyond simple procuring, but does not yet act in a way consistent with a fully-aware political consciousness. It remains at the intermediate level of resisting institutional absurdity, but does not yet, and perhaps cannot, transcend it.

We began our discussion by suggesting an analogy between jailhouse lawyers and the anti-heros of existential literature as typifyed by Sisyphus. Like the classic rebels of mythology, the JHL first says no, and then affirms the negation with an act of power-challenging defiance. Like Sisyphus, JHLs often reach the mountain crest only to watch their labors fall for naught, and they, too, must begin anew. Like the classic rebels, they continue to say no, they continue to resist their absurd plight. As Sisyphus learned, there are both rewards and punishments for defiance. JHLs, too, accrue rewards for their defiance, but, they also stand marked as "troublemakers," and may be stigmatized or punished for tricking the gods or delivering forbidden resources to their exiled siblings. For every progressive change they engender, resistance and counter-responses may also occur. New and equally unacceptable control strategies may emerge, "trouble makers" may be shipped to other institutions, beaten, disciplined, or deprived of resources or release on parole.

As primitive rebels, JHLs are more like the "social bandits" described by Hobsbawm (1969: 19): Neither are they rebels nor revolutionaries; instead, they are individuals who refuse to summit. Like the social bandit: . . .They are activists and not ideologists or prophets, from whom novel visions or plans of social and political organization are to be expected (Hobsbawm, 1969: 20).

Jailhouse lawyering, much like Sisyphus's challenge to authority, symbolizes freedom. As a consequence, we suggest that the jailhouse lawyer does, in fact, deserve the title of primitive rebel, and that law becomes the weapon in renouncing unnecessary forms of social domination.

If Lukacs (1971: 199) was correct in his assertion that "Whether an action is functionally right or wrong is decided ultimately by the evolution of proletarian class consciousness," then prisoner litigation may be "politically incorrect." But this seems too uncharitable, because social change, as a historical process, occurs in many cases with successive acts of saying no. The barricades are not disproportionately populated by armchair philosophers, nor necessarily by those with a well articulated ideology. The recognition of an act as one of negation may arise before, during, or after its occurrence. Precisely when an act becomes transformed from mundane practice to rebellious praxis is an empirical question, and the effects of an act may not be visible until some future date[31].

Of itself, rebellion may not lead to fundamental social change but, in the dialectic of social struggle, neither do fundamental changes occur through the efforts of any single social group. Social change arises from social action, and a group "in itself" can contribute to the creation of circumstances where others can congeal to a group "for itself," as has occured with feminists, Blacks, gays, and others. Obviously, reforms are only a partial victory, but they function to exacerbate other conditions, and the dialect of struggle continues.

Several issues raised by this type of analysis direct us to further research. First, it suggests the need to reconceptualize the meaning of JHL activity in particular and the role of legal activists in general. Rather than view legal struggle by examining its consequences, we must also examine the meanings of the use of law in the context of "saying no." Second, existentially-oriented research affirms attention to the institutional and other social arrangements that constrain both behavior and consciousness. Especially in total institutions, the often contradictory structure promotes double-binds, no-win situations, and inconsistent practices that must be continually negotiated and managed. Third, consistent with Marxian and conflict theory, it reminds us, as Goodman (1976) has cogently argued, that people may seek dissonance as much as consonance. Dissonance offers not only an instrumental means of potential resistance, but provides as well a source of meaning to an otherwise meaningless existence. Fourth, given our contention that JHLs are primitive rebels, one crucial research task requires, as Fairchild (1977) suggested, identifying the relationship between the correctional experience and social and political empowerment. More simply what factors impel some prisoners to resist while others do not? Under what conditions does simple rebellion become transformed into explicit political action? Finally, it shifts attention from the alleged "pathological" or abusive motives of litigants to the sources that impel litigation. This suggests that litigation should be interpreted diagnostically as reflecting the pathology of the deeper institutional structures that impel resistance while simultaneously offering the means for challenge.

By refocusing attention on the existential conditions of resistance, we cautiously temper the contentions of some, such as Foucault (1979), who impute excessive unilateral power to those in charge of the monolithic panopticon. A position informed by the existentialist tradition recognizes the mediating, yet often ironic and futile, capacity of the human agent: It is essentially a struggle against great odds to allow the individual to realize his existential freedom and to feel his capacity to influence his future and to participate in the decisions which affect him (Fairchild, 1977: 316; emphasis in the original).

Those who use law to challenge an absurd existence sit on what Matza (1969) has called the "invitational edge" of an enterprise that, if nurtured, contains the potential for challenging policies and practices that have previously gone unchallenged. For this reason, we recognize the JHL as one example of a primitive rebel who illustrates the utility of law as social praxis.

[1] The disruption between intended and new meanings has been called looping, or a systematic disruption of the usual relationship between actors and their actions (Goffman, 1961: 35-37). In looping rituals, the responses of interactants are recoded in the context of the setting and are interpreted in ways that in other contexts would be taken at face value. The processes and consequences of looping add one more dimension to the problem of implementing meaningful social change by prisoners.

[2] We suggest here that in some loosely coupled organizations, rules may be less a reflection of formal rationality than they are embedded in substantive rationality (Thomas, 1984). Written rules may become informal means of attaining formal ends when rules' meanings and definitions are ambiguous or vague, when they are selectively enforced, or when meanings are either paradoxical or contradictory (Thomas, Aylward, Mika and Blakemore, 1988). For descriptive summaries of prison culture and existence, see Bowker (1977), Carroll (1974), Jacobs (1977), Marquart (1986), and Thomas (1984).

[3] For a detailed summary of our perspective, methods of data collection and background, see Milovanovic (1987a) and Thomas (1988a).

[4] For a summary of and response to the criticisms of prisoner litigation, see especially Doyle and Thomas (1987), Thomas (1988a), and Thomas, Harris and Keeler (1987).

[5] In the seven years between 1980-86, nearly three-quarters (71 percent) of all litigants filed only one suit, but they account for only half (49 percent) of all litigation (Thomas, 1988b). Milovanovic's (1988a) typology of jailhouse lawyers can be logically collapsed into the two categories that we develop here.

[6] To give an example from a jail setting, One JHL filed a civil rights class action suit in New York's Eastern District Federal court concerning alleged unconstitutional conditions of this particular overcrowded jail (72-C-1653, E.D. N.Y., 1980). He challenged the inadequate conditions of the law library, recreation facilities, sleeping arrangements, classification system, mail policies, and other perceived problems. Class action suits typically challenge conditions or practices endemic to an entire institution or prison system, and thus affect all inmates, but, in practice, class actions suits are rare. Further, many, perhaps most, of the class action suits in federal courts may arise because of judicial consolidation of similar cases, rather than from the intent of the litigants.

[7] These are customarily civil rights suits filed under 42 U.S.C. [Section] 1983. Civil rights suits filed by state prisoners currently comprise 20 percent of the federal docket, cost an estimated $85 million a year just to process, and between 1970-87 have increased by 170 percent (Thomas, 1988b).

[8] In Illinois, we can identify only one instance of an active JHL importing formal legal skills into an institution and using those skills to oppose conditions. Even this is misleading. Knowing that incarceration was inevitable, this person delayed trial long enough to obtain a law degree on the streets in order to pursue litigation while in prison. Other lawyers have been incarcerated, but these, to our knowledge, did little to challenge prison conditions, and utilized their skills, if at all, in fighting their own convictions or in exchanging services with other inmates in cases unrelated to civil rights actions.

[9] These include fighting, predatory behavior, drug use, gang activity, withdrawal to fantasy or incessant television viewing, obsessive confrontation with guards, body building, avaricious reading, or other activities, some highly productive, others not.

[10] These examples are drawn from prison disciplinary documents and interviews with "offenders." They typify the catch-22 situation of rule-following. To obey the rule and remain risks punishment for not being on, for example, a work assignment. To leave and avoid possible punishment for other rule violations risks punishment for "disobeying a direct order," which is a rule violation. For other examples of the double-binding dilemmas of prison rules, see Thomas, Aylward, Mika and Blakemore (1988).

[11] This theme echos through the works of Ionesco, Sartre, Brecht, Albee, Camus, Beckett, and others identified with the literature of the absurd.

[12] These critical perspectives derived from published sources and especially conference encounters. We, too, have occasionally (and inadvertently) provided either the logic or the data that could support some of these positions. Readers of some of our previous work have interpreted the data as implying an anti-rebel thesis. Here, we clarify our position by recognizing that the issue is complex, and by elaborating on the possible ambiguity of our earlier works that might, on cursory reading, be misinterpreted.

[13] See especially Milovanovic, 1986. By hegemony, we draw from Gramsci (1978), and mean the domination of a given population by a controlling agent(s) through direct domination (official state control apparatus) and indirect domination (civil society). Examples of direct domination include the legal apparatus, police, and prisons. Indirect domination includes cultural expectations, social values, and conceptions of legitimate forms of social struggle. Despite numerous mediating factors, law remains one significant form of control, both in its function as legitimizing state force, and in providing a corresponding ideology at the level of civil society. (See also Milovanovic's (1988c) discussion of Weber, Marx, and the semiotic approach in law).

[14] In another context, such as the non-prisoner activist lawyer defending political rebels before the court, Bannister and Milovanovic (1988) have suggested that not only does reification occur, but also alienation and estrangement from the product (the definition of "what happened" created by formal judicial procedures), self, and the client-rebel in the manner outlined by Marx (1964: 106-119).

[15] For an elaboration of this theme, see especially Milovanovic (1986) and Bannister and Milovanovic (1988). For a discussion of the discourse of prisoner suits as narratives, see Thomas (1988: 129-154).

[16] There, are of course, a few notable (and quite rare) exceptions. In Ruiz v. Estelle, 650 F.2d 555 (5^th Cir. 1981), a federal court ruled unconstitutional the entire Texas correctional system, especially use of inmates as guards. Holt v. Sarver, 300 F.Supp 825 (E.D. Ark. (1969) was a moderately successful suit prohibiting, among other things, physical torture of prisoners. Wolff v. McDonnell, 418 U.S. 539 (1974), although a mixed decision for the plaintiff, nonetheless established basic minimal standards of due process in prison disciplinary hearings. There are other decisions of significance, but they are the exception. In general, however, the "big case" is rare, and most of the cases are about equally (40 percent) either dismissed immediately or settled quietly and with little ostensible gain (Mika and Thomas, 1988).

[17] For a discussion of the relationship between structure and linguistic production of "liberty interests" protected by the Fourteenth Amendment's "due process" clause, see especially Milovanovic (1987b).

[18] For a summary of these and other arguments, see especially Thomas, Harris and Keeler, 1987).

[19] This argument rests on the assumption that most litigants sue for release, which is simply wrong. Release-oriented suits are generally filed as habeas corpus petitions, and these petitions currently comprise less than 30 percent of all prisoner actions. Further, the number of prisoners overturning their original convictions by appealing to federal courts is rare (Burt, 1985: 372; Justice, 1973: 708), which "teaches," if anything, that federal courts are not prone to intervene in state criminal matters.

[20] There are exceptions. Some JHLs possess exceptional political analysis and attempt when possible to link their legal actions to broader issues. However, they are not the norm, and their opportunities for action are few, thus limiting the range of available praxis.

[21] We reject out of hand the notion that litigation contributes to increased crime. Most litigation (about 70 percent) addresses conditions of confinement, and is not aimed at overturning a conviction. Hence, prisoner suits, even when won, do not send a message that "crime pays." In addition, as Thomas (1988a) and Alpert (1978) have argued, litigation may create a respect for, rather than disdain of, the legal system. Data gathered in a current study by Milovanovic (1988d) of incarcerated juveniles indicate that with increasing involvement with the law, juveniles become more positive about the law, lawyers, and judges, but less positively inclined toward police. Finally, prisoners may learn about crime in prisons, but not because of their legal enterprise or "learning proficiency." Rather, the coping characteristics (aggression, deceit, "conning," withdrawal) are precisely those not valued on the outside, and are reinforced by the conditions of an institution. If prisons are "schools for crime," it is because they are so-designed.

[22] In a related context, Black (1983) has suggested that crime may be conceptualized as grievance-expression. In an ironic twist, those who formerly expressed a grievance in ways defined as socially unacceptable now have developed new and acceptable means by which to express dissatisfaction.

[23] In moving through their career stages, JHLs seem to pass through a "save the world" phase in which they begin to feel that law is a means of changing prison conditions (Thomas, 1988a: 210-211). For a discussion of a similar issue among free-world lawyers, see Bannister and Milovanovic, 1988: n6. In this phase, the tendency is to aggressively say no.

[24] DiIulio (1987) has provided a powerful argument that there is no "prison crisis," but rather an "administration crisis. In DiIulio's view, problems impelling litigation, violence, fiscal crisis, recidivism, and other factors commonly associated with a "failing system" can be traced directly back to incompetent administrators, which he sees as the norm, not the exception. Although we do not agree that prisons' problems can be fully understood without analysis of broader social relations, we find much of merit in his argument.

[25] By "monologic discourse" we mean speech acts that "assert truth." By "dialogic discourse," we man speech acts that require reflexive interaction. These correspond to Aristotelian and Platonic modes of seeing and telling respectively. remove unsafe or undesireable conditions, or implement new policies or programs. For a discussion of monologic and dialogic discourse, see Blum (1974), who argues that each type patterns a particular rhetorical style that guides both cognition and action. For a similar argument from a Marxist perspective, see also Bakhtin (1981).

[26] For a summary of legal decisions affecting prisons, see especially Palmer (1984).

[27] However, some notable cases have, in fact, restructured the power hierarchy, especially in Texas and Arkansas.

[28] We must caution that, unless a complaint challenges a policy or specific conditions that affect others, the impact of most suits is discrete.

[29] In Milovanovic's (1988a) investigation, one objective indicator of the effectiveness of JHLs could be partly measured by how much legal "action" has been mobilized (See also Black, 1976). In this view, an inmate returning to court for redress, appeal, suppression hearings, or other action, can be seen as attaining some symbolic gain to the extent that they continue to keep their issue before the courts and, in civil rights cases, usually temporarily gain at least temporary respite from the objectionable action even prior to case termination.

[30] As Pallas and Barber (1980), Fitzgerald (1977), Jackson (1970), Wald (1980), and numerous others have argued, however, there was, among some prisoners in the 1970s, an inchoate revolutionary consciousness. Despite their visibility and theoretical sophistication, radical prisoners were a minority, and it is unclear how widespread their support was in the general prison populace. For a less sanguine and thoughtful variant of this position, see Fairchild (1977), who attempts to empirically examine the politicizing processes of prisons.

[31] An example of an apparently spontaneous act that symbolized a resistance movement occured when Rosa Parks refused to give up her bus seat to a white male in Montgomery, Alabama. Some have identified her refusal as the birth of the civil rights movement.

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