'Conspiracy! Or, when bad things happen to good litigants...' by Kate Leader in (2024) 44(3) Legal Studies 498-518 comments
This paper considers the relationship between litigants in person (LiPs) and conspiracy theories and seeks to answer two questions: how, and why, do some LiPs become conspiracy theorists? The majority of LiPs, of course, do not become conspiracy theorists. There is also no evidence that LiPs are more likely than anyone else in legal proceedings to be conspiracy theorists, only, perhaps, that it is more obvious when they are. But there continue to be individuals who use conspiracy theories to explain the difficulties or failures they experience throughout legal proceedings. And while it is widely held that some LiPs hold eccentric beliefs about the law, there has been little attempt to understand how and why LiPs may come to acquire or articulate these beliefs. This is presumably because it has not been considered important to interrogate the views of people already often assumed to be ‘difficult’. This paper contends, however, that trying to understand how and why these beliefs are acquired matters very much. This is because conspiracy theories can give us insight into how negative experiences of litigation can result in a loss of faith or trust in legal institutions.
I advance this argument through three key claims: first, that legal professionals and legal scholars tend to pathologise both those who believe in conspiracy theories and LiPs in an unhelpful way, by focusing on their individual competence or psychology. Whilst there is no direct research on LiPs and conspiracy theories, work that has touched on litigants and repeat litigation shares a traditional conception of LiPs as difficult, litigious or paranoid individuals. Consequently, the presumption in such cases has been that these are pathological individuals who happen to be involved in legal proceedings; their experience as litigants is less, or not, relevant. I argue instead that this is symptomatic of how laypersons are treated in the civil justice system and demonstrates how we can fail to take seriously LiP claims about their experiences.
Secondly, I argue that examining how and when belief in conspiracy theories arises can provide insight into the legal consciousness of LiPs and how this is affected by repeated, negative experiences of litigation. Far from confirming litigant paranoia, this paper contends that these behaviours and beliefs are affected, reproduced and at times created by contact with legal proceedings. So, while the malign authority that conspiracy theorists may invoke to explain their experiences is fictive, what leads to these beliefs – a perception of deliberately unfair treatment – is rooted in genuine and systemic experiences of exclusion, and these exclusions happen to all LiPs to differing extents in the civil justice system.
Finally, this paper argues that too often we make a distinction between ‘worthy’ and ‘unworthy’ LiPs, whereby we bracket off those we perceive as problematic actors, such as those who express conspiracy theories, from those individuals we implicitly frame as non-problematic, and therefore having a right to pursue or defend actions. I suggest instead that such a distinction is unhelpful and unsustainable. Belief in conspiracy theories is best understood as existing along a continuum rather than being a binary. Doing this allows us to move away from thinking in terms of ‘us and them’, and instead consider that how individuals perceive their treatment by legal actors and the courts may play a constitutive role in their faith in these institutions. What tips LiPs into believing in conspiracy theories? And what can this tell us about how we tend to characterise LiPs? Ultimately, I argue that the development of belief in conspiracy theories on the part of some LiPs can best be understood as at least partly the result of a crisis of faith that arises when idealised litigant perceptions of law give way to the mundane and distressing reality of legal proceedings. As I conclude, if some LiPs are ‘crazy’, we ought to consider the possibility that going to law has made them this way.
