The Common Place of Law Notes

The Common Place of Law

Everyday things represent often overlooked knowledge.
Commonplace experiences and images of the law vary, sometimes seen as a remote, transcendent force, and other times as a human arena.
Most of the time, people don’t think about the law.
Contracts, property, and traffic rules often seem natural and inevitable parts of social life.
The law generally sits on a distant horizon, often irrelevant to daily matters.
Occasionally, the law intrudes into the everyday world, redefining motives, relationships, obligations, and privileges within legal constructs.
Material forms of the law include courthouses, parking meters, certificates, weapons, and warning signs.
The law has a prominent cultural presence in popular media, providing content for news and entertainment.
The law is experienced as strange and familiar, episodic and constant, serious and humorous, irrelevant and centrally implicated in our lives.
Some critics see the variety of law as a sign of the erosion of the rule of law.
Others see it as a fragmentation of public culture.
The law incorporates varied and ambiguous rules, official actors, organizations, and institutionalized procedures.
The law appears to us in varied and sometimes contradictory ways.
Legality is an emergent feature of social relations, rather than an external apparatus acting upon social life.
Legality embodies the diversity of the situations out of which it emerges and that it helps structure.
Legality is sustained by formal law and relies on commonplace schemas of everyday life.
The multiple and contradictory character of law’s meanings is a crucial component of its power.
Law is distinguishable from that which is not law.
The boundary of law corresponds neatly to its formal institutional location.
Law is produced in and through commonplace social interactions.
Social roles, statuses, relationships, obligations, prerogatives, responsibilities, identities, and behaviors bear the imprint of law.
Legality operates through social life as persons and groups interpret and invoke law’s language, authority, and procedures to organize their lives and manage their relationships.
The commonplace operation of law in daily life makes us all legal agents, even when no formal legal agent is involved.
Scholars have begun to examine aspects of social life not conventionally included within traditional socio-legal studies.
This research has uncovered the operation of law in everyday life, as well as the operation of everyday life in law.
To discover the law outside of formal legal settings, we must tolerate a kind of conceptual murkiness.
Legality refers to the meanings, sources of authority, and cultural practices that are commonly recognized as legal, regardless of who employs them or for what ends.
People may invoke and enact legality in ways neither approved nor acknowledged by the law.
Law refers to aspects of legality as it is employed by or attributed to formal institutions and their actors.
Legality is an emergent structure of social life that manifests itself in diverse places, including but not limited to formal institutional settings.
Legality operates as both an interpretative framework and a set of resources with which and through which the social world is constituted.
Reconceptualizing legality as an internal and emergent feature of social life requires that we shift our empirical focus away from law to events and practices that seem on the face of things, removed from law, or at least not dominated by law from the outset.

A Methodological Sketch

430 people were interviewed for this study.
A broad representative sample was sought because the study was attempting to study everyday law.
There was substantial variation in the legal experiences of the respondents.
The interview was also designed to capture a picture of legality unmoored from official legal settings and actors.
The researchers conducted a survey rather than an ethnography of a community or organization due to its capacity to provide a range and variation.
Respondents were told the interview was about community, neighborhood, work, and family issues.
The initial part of the interview consisted of a series of questions concerning the respondents’ community and neighborhood.
Respondents set the boundaries of privacy and exposure.
This portion of the interview was followed by a series of open-ended questions that asked respondents about a wide range of events and practices that might have “troubled or bothered” them at some point.
The particular situations about which the researchers asked were intentionally varied and comprehensive.
This part of the interview was followed by a more in-depth conversational portion focusing on one event.
The questions were intended to elicit a narrative of the event, rather than to collect specific information regarding its occurrence.
A series of closed-ended questions were included at the end of the interview to allow comparisons with existing surveys regarding people's interpretations and perceptions of law.
The topic of law and legality was deliberately vague until the final questions, which moved law to the foreground.
Each of the interviews was tape-recorded in order to preserve a verbatim account of the interaction.
The transcriptions of 141 of these interviews serve as the empirical basis for this book.
The book is organized into eight chapters with seven somewhat longer accounts of distinct individuals.
Legal consciousness is variable, and individuals may express within their own lives and experiences the full range of variation.
In the final chapters, the researchers examine how the three stories or varieties of legal consciousness intersect and relate to one another, comprising the commonplace experience and power of legality.

Legal Consciousness

Before discussing our own interpretation of consciousness and the theoretical foundation on which it rests, we will review two alternative definitions of legal consciousness.

Legal Consciousness as Attitude

Some scholars conceptualize consciousness as the ideas and attitudes of individuals that, when taken together, determine the form and texture of social life.
According to the liberal ideology, desire, which remains unexplained, is “the moving, active, or primary part of the self . . . What distinguishes men from one another is not that they understand the world differently, but that they desire different things even when they share the same understanding.”
Relying on this “attitudinal” conception of legal consciousness, much American social science has attempted to document the variation in beliefs, attitudes, and actions among American citizens as a means of explaining the shape of American political and legal institutions.
People care about having neutral, honest authorities who allow them to state their views and who treat them with dignity and respect.
Despite the central focus on the capacity of individual desires, beliefs, and attitudes to shape the world, this research describes not individual variation but a deep, broad-based normative consensus.
While people express persistent skepticism about the fairness of legal institutions, they appear to be committed to both the desirability and possibility of realizing legal ideals of equal and fair treatment.

Legal Consciousness as Epiphenomenon

At the other end of a continuum of conceptualizations, some scholars regard consciousness as a by-product of the operations of social structures rather than the formative agent in shaping structures and history.
Similarly, some Marxist structuralism treats ideas, including cultural symbols and narratives, as a superstructural residue of material conditions that serves the interests of elites.
Thus, within these theoretical paradigms, individuals are the bearers rather than agents of social relations.
Consequently, social relations, not individuals, are the proper objects of analysis.
Following from this perspective, law and legal consciousness are epiphenomena because a particular social and economic structure is understood to produce a corresponding or appropriate legal order, including legal subjects.
Work in this tradition often describes how the needs of capitalist production and reproduction mold legal behavior and consciousness.
Studies focus on the production and practice of law, its accommodation to class interests, and the inequities that result.
To legitimize the inconsistencies and irrationalities born of the contradictions of the economy the legal order constitutes myths, creates institutions of repression and tries to harmonize exploitation with freedom, expropriation with choice, inherently unequal contractual agreements with an ideology of free will.
An alternative view within the structuralist tradition looks at legal consciousness as one of the ways in which social organizations produce the means of authorizing, sustaining, and reproducing themselves.
Balbus argues that certain features of liberal law serve to buttress and legitimate the inequality of the existing economic order.
Consciousness as Cultural Practice
In contrast to these perspectives, we develop a cultural analysis that integrates human action and structural constraint.
We identify and specify the mediating processes through which social interactions and local processes aggregate and condense into institutions and powerful structures.
People’s accounts connect with their lived experiences, including the constraints operating within those particular locations.
It provides a coherent report of the finite and limited range of options available to people in either fashioning their interpretations or choosing their behaviors.
The attitudinal and structural conceptualizations of consciousness share an analytic strategy that limits each model’s theoretical range.
By emphasizing alternative wings of a dualistic conception of human life and experience, each model is able to imagine only part of what, at least conditionally, might be imagined as a process of ongoing mutual causation.
The dualism illustrated by these two conceptualizations opposes idealist with materialist models of thought and action.
Sociological theory and research have been struggling to resolve what at different times has been referred to as the problem of free will and determinism, subject and object, individual and society, or agency and structure.
Voluntaristic theories see the individual subject’s ideas, intentions, and motivations as critical variables in shaping the world.
More deterministic, structural theories emphasize the power of society and material constraints in shaping the behavior and beliefs of persons.
Socio-legal scholars created their own particular duality between the law on the books and the law in action.
Research became preoccupied with dichotomies between law and state, equality and hierarchy, and its own version of agency and structure in debates about consent and coercion.

Schemas and Resources

We draw on a recent and growing body of literature in sociology that attempts to bridge these dualisms by redefining the relationship between the individual and social structure, reconfiguring what was understood to be an oppositional relationship as one that is mutually defining.
Within this framework, consciousness is understood to be part of a reciprocal process in which the meanings given by individuals to their world become patterned, stabilized, and objectified.
These meanings, once institutionalized, become part of the material and discursive systems that limit and constrain future meaning making.
In other words, through its organization, society provides us with specific opportunities for thought and action.
Through language, society furnishes images of what those opportunities and resources are: how the world works, what is possible and what is not.
These schemas include cultural codes, vocabularies of motive, logics, hierarchies of value, and conventions, as well as the binary oppositions that make up what he calls a society’s “fundamental tools for thought.”
Examples of schemas include the interactive rules of a criminal trial, the concepts of guilt or innocence, and the obligation born of a promise or a contract, in addition to the commonplace proverbs and aphorisms asserting such truths as “possession is nine-tenths of the law” or the insistence that “this is a free country.”
As cultural codes used for interpretations, schemas function as “generalizable procedures applied in the enactment/reproduction of social life.”
Schemas are transposable; they can be invoked in many settings.
In addition to providing these schemas, societies also produce and distribute resources, material assets, and human capacities used to maintain or enhance power.
Resources include such diverse objects and abilities as legal knowledge, capital, property, political “connections,” and even physical strength.
Of course, resources require cultural schemas in order to invest them with their power-generating capacity.
The modern trial as a cultural schema renders the verbal acuity, but not the physical strength, of a trial lawyer as a resource.
Schemas are equally dependent on resources in order to remain manifest and viable.
The differential distribution of resources, together with the differential access to schemas, underwrites variations in social power and agency.
The possibilities of invoking schemas in a wide variety of settings opens up the potential for generating new resources and thus the ability to challenge or revise cultural meanings and the distribution of resources.
Social structures, while they confront us as external and coercive, do not exist apart from our collective actions and thoughts as we apply schemas to make sense of the world and deploy resources to affect people and things.
Human agency and structure, far from being opposed, in fact presuppose each other.
Social practice involves borrowings as well as inventiveness and a measure of unpredictability, structures are more appropriately understood as ongoing processes rather than as sets of immutable constraints.
By describing the world as immutable, inevitable, or natural, schemas often deny the very openness they allow.
By obscuring the ongoing construction, structures appear to have an existence apart from their continuing production.
The appearance of objectivity is not an illusion.
The constructed world cannot be ignored.

Belief in Witches example:

Consider the general belief in witches that characterized European societies during the Renaissance.
From a twentieth-century point of view, this belief, along with the customs, bodies of expert knowledge, and practices that sustained it, was illusory.
We may seek to understand why Europeans at that time believed in and acted on their belief in the existence of witches.
But even in our efforts to explain that historical experience, most of us would reject the reality of the world constructed around the presence of witches, prickers, inquisitors, Satan, and hell.
Any person born into that world confronted a society that, among other things, believed in witches.

Legality as Social Structure

We claim that legality is a structural component of society.
That is, legality consists of cultural schemas and resources that operate to define and pattern social life.
At the same time that schemas and resources shape social relations, they must also be continually produced and worked on—invoked and deployed—by individual and group actors.
Legality is not inserted into situations; rather, through repeated invocations of the law and legal concepts and terminology, as well as through imaginative and unusual associations between legality and other social structures, legality is constituted through everyday actions and practices.

Example: David Engel’s work on the intersection of law and everyday life

Engel shows that this legislation and everyday life within this community are interdependent and mutually shaped this social domain and the Education for All Handicapped Children Act of 1975

Example: whale songs

Each rendition is shaped by the social structure that is the whale song.
Each individual has enough autonomy to add small variations and innovations to the main theme; the continuously produced whale song is a resource and medium through which each individual and unique whale can creatively reproduce the song.

Varieties of Legal Consciousness

With this conception of legality as a structural feature of society in place, we use the phrase “legal consciousness” to name participation in the process of constructing legality.
This formulation of consciousness as cultural practice and specifically as participation in the construction of social relations attempts to keep alive the tension between structure and agency, constraint and choice.
It seeks to capture peoples sense of purposes, stakes, and constraints within a broad ethnographic domain.
Each person’s participation sustains legality as an organizing structure of social relations.
Every time a person interprets some event in terms of legal concepts or terminology—whether to applaud or to criticize, whether to appropriate or to resist—legality is produced.
Consciousness is not an exclusively ideational, abstract, or decontextualized set of attitudes toward and about the law.
Legal consciousness is produced and revealed in what people do as well as what they say.
Legal consciousness is always a collective construction that simultaneously expresses, uses, and creates publicly exchanged understandings, what earlier we called schemas.
The enactment of collective understandings is variable, locally shaped and situated, involving improvisation and invention as well as appropriation and replication.
Consciousness is formed within and changed by social action.
Legal consciousness is emergent, complex, and moving, it nonetheless has shape and pattern.
The possible variations in legal consciousness are developed within historically defined contexts and encounters.
We have identified three predominant types of legal consciousness, three ways of participating in the construction of legality: conformity before the law, engagement with the law, and resistance against the law.
Each variety of consciousness invokes a particular cluster of cultural schemas and resources that position the law and the individual in relation to one another.
People describe their relationships to law as something before which they stand, with which they engage, and against which they struggle.

Before the Law

Legality is envisioned and enacted as if it were a separate sphere from ordinary social life: discontinuous, distinctive, yet authoritative and predictable.
The law is described as a formally ordered, rational, and hierarchical system of known rules and procedures.
Respondents conceive of legality as something relatively fixed and impervious to individual action.
It is often regarded as somewhere else, a place very different from everyday life. Objective rather than subjective, the law is defined by its impartiality.
Imagining the law as a realm removed from ordinary affairs by its objectivity, people turn to law only when they can imagine their personal problems as having general import, as affecting others as well as themselves.
Law is understood to be a serious and hallowed space in which the mundane world is refigured in importance and consequence.
Often in these situations people express loyalty and acceptance of legal constructions; they believe in the appropriateness and justness provided through formal legal procedures, although not always in the fairness of the outcomes.
Sometimes, however, finding themselves before the law, people express frustration, even anger, about what they perceive as their own powerlessness.
Those who find themselves before the law acknowledge and, through their actions and interpretations, defer to the law’s claim to autonomy.

With the Law

The law is described and “played” as a game, a bounded arena in which preexisting rules can be deployed and new rules invented to serve the widest range of interests and values.
It is an arena of competitive tactical maneuvering where the pursuit of self-interest is expected and the skillful and resourceful can make strategic gains. The boundaries thought to separate law from everyday life are understood to be relatively porous.
The law as game involves a bracketing of everyday life— different rules apply, different statuses and roles operate, different resources count—but it is a bracketing that can be abandoned if need be.
Rather than being discontinuous from everyday life and its concerns, the law is enframed by everyday life.
Respondents describe acceptance of formal legal constructions and procedures only for specified objectives and limited situations.
Respondents display less concern about the legitimacy of legal procedures than about their effectiveness for achieving desires.

Against the Law

People revealed their sense of being caught within the law, or being up against the law, its schemas and resources overriding their own capacity either to maintain its distance from their everyday lives or to play by its rules.
Finding themselves in such a position, people described their attempts at "making do," using what the situation momentarily and unpredictably makes available materially and discursively to fashion solutions they would not be able to achieve within conventionally recognized schemas and resources.
People exploit the interstices of conventional social practices to forge moments of respite from the power of law.
Foot-dragging, omissions, ploys, small deceits, humor, and making scenes are typical forms of resistance for those up against the law.
In resisting, people seek diverse goals.
These instances of resistance are recounted with humor and passion so that part of the resistance inheres in the telling of the story and passing on the message that legality can be opposed, if just a little.

Rita Michaels: Before the Law

Rita Michaels and her biography.
Rita sees herself as different from her neighbors because she is divorced and because she works long hours.
Her family did not support her action of divorce, and her friends and neighbors, Rita thought, did not understand her situation.
Her failed marriage undermined her sense of competency in her role as mother, as well as neighbor.
Her divorce was gratifying.
The judge affirmed her experience and her decision to seek a divorce.
Rita Michaels did not easily choose a divorce but turned to the law because she believed she had no alternatives and sought the only help she thought it could provide—release from her obligations to a husband who himself had failed in his marital obligations.
There existed, she found, a broader set of values, rights, and expectations, something less particular and partial than the world of her family and friends.
Her husband had not fulfilled his obligations under this larger, more general set of norms. She took comfort in the fact that she could point to these norms as grounding and legitimacy for her action.
Rita Michaels articulated a very traditional conception and function of legal ordering: protection of the individual against local group norms, a protection that derives from the fact that legality resides outside these local norms.
That distance between the public space of the court and her private world of friends and family represented, to Rita, the court’s authority for the service it provided.
Nonetheless, by going to court and getting divorced, she had crossed a barrier that excluded her from the networks that had up until the divorce defined her social position and identity.
Rita Michaels repeatedly traces this boundary between public and private; it often determines the interpretations she offers for her own and others’ actions.
The divorce had been difficult, not only because she was Catholic, but because she had gone outside her network of family and friends for what she believed was a private matter.
Normally, Rita Michaels avoids such action, she believes that private matters should be handled privately.
She never collected child support although the court ordered her husband to pay.
Rita Michaels expressed her view of the law as transcendent, impartial, and powerful in another story about a traffic case.
Her experience in the traffic court revealed to her the human or fallible side of law.
Rita Michaels also served as a juror, an experience she characterized as “interesting. ”
Serving on a jury, getting divorced, and her son’s traffic case were the only formal interactions Rita Michaels had with courts or legal agents.
Yet her life was clearly not unproblematic.
Rita experienced and characterized her difficulties with medical care, consumer issues, schools, and town services as part of everyday life to weather or endure as best she could.
In a world firmly divided between the personal and the public, Rita Michaels believes that the law belongs in a realm that is unsullied by everyday life.
Rita Michaels identifies with the police precisely because they do not attend to the messiness of everyday conflicts.

NIkos Stavros: With the Law

Nikos Stavros background.
Nikos Stavros is a consummate storyteller.
The numerous accounts he shared with us formed an overarching narrative of personal change and development that was characterized by a strong sense of legal and organizational efficacy.
Believing in the intelligibility of the law and in his own ability to eventually master its ways, Nikos presented himself as an able technician of bureaucratic procedure and an effective legal player.
In his accounts of his early experiences in the United States, Nikos described himself as compliant and naive in his relationship with others, often accepting or “lumping” what he saw as legitimate grievances.
Having taken a month's unpaid wages to court, Nikos attributed his defeat to his failure to document his claim and to act expeditiously.
Underwriting this skill was an emerging understanding of bureaucracy, an understanding that would instruct him in how to behave in relation to the world of American institutions.
To Nikos Stavros, bureaucracy—epitomized for him by the excessive rules and regulations of large organizations—is a pervasive and inevitable part of modern life.
Recognizing the futility of changing it, he accepts the necessity of learning how to survive while working with it.
Nikos came to understand that people who work in bureaucracies have very limited interests.
Nikos learned to use these operating concerns to achieve his own ends.
He learned that paramount among the skills necessary to deal successfully with this world of bureaucrats is maintaining documents.
The labyrinthine rules and regulations that define modern organizations are not obstacles to, but rather opportunities for, getting what one wants.
The law as both a space “within” which to operate and something “with” which to work.
Like any skillful and experienced gamesman, Nikos Stavros is acutely aware of the importance of his opponent’s abilities and material advantages.
While he acknowledges the truth or moral rectitude of a position or claim, he sees these qualities as being only contingently related to the outcome of any legal case.
People might be “right” and still lose if out-positioned by their opponents.
Chance and the variable skill and resources of opponents will always introduce uncertainty into legal contests.
Organizations as advantaged opponents, having greater resources, experience, and access to legal knowledge and advice.
A dispute he pursued with the IRS, Nikos maintained that scholarship money he received years before was not taxable, while the IRS claimed it was.
Accessing the records of his college, Nikos Stavros constructed documentary evidence regarding the scholarship income, evidence that he believed would provide crucially important leverage with which to rebut the IRS.
After repeatedly and unsuccessfully attempting to get a water leak in his Trooper repaired, Nikos concluded that he had been sold a “lemon” and requested that Isuzu refund the purchase price.
When they refused, Nikos, without a lawyer and arguing on his own behalf, sued the corporation.
Nikos understood that it was more than a matter of applying a rule or formula to the situation., the outcome would result from a contest, a process of argument and decision making.
He understood that, it was more than a matter of applying a rule or formula to the situation.
The tactics that he had learned earlier—the importance of documents and reliance on the resources made available by other organizations—were skillfully employed in constructing his case.
Recognizing the fragility of memory and the vulnerability of verbal recollections, Nikos took steps to establish the “facts” against what he anticipated to be an alternative set of facts likely to be presented by the defendants.
First, he took statements from friends of his who had been passengers in the car and who could testify that the car still leaked after each of the attempted repairs.
Second, in order to confirm the testimony of his friends, Nikos Stavros obtained meteorological information regarding the dates and times of rain in the area.
Nikos belittled his opponents for making what he clearly interpreted as a naive and costly gaffe. When asked by the judge whether a car would lose value because of a defect such as the one under dispute, the customer service representative said, “Well no, you don’t reveal that to the potential buyer. ”
The judge also reacted strongly to the Isuzu representative’s statement.
Nikos’s understanding of the law and how it operates in social life remained remarkably unchanged.
From the first incident involving the landlord and his eviction, Nikos Stavros expressed an understanding of the law as a game: a highly circumscribed and rule-bound arena of contest in which the players’ relative skill strongly determine the outcome.
As he acquired experience and skill, his willingness to engage the law increased.
Two years ago, Nikos encountered what he experienced as the capricious power of the law.
Throughout the long and varied litany of minor disputes and disagreements, claims, and counterclaims recounted in his interview, Nikos’s understanding of the law and how it operates in social life remained remarkably unchanged.

Bess Sherman: Against the Law

Bess Sherman lives at the top of two flights of stairs in a one-bedroom apartment.
Bess and friend look out for each other, it is safe.
Her job as superintendent, she performs a variety of jobs—taking out the garbage, sweeping the halls, and collecting the rents every month.
Bess and Agnes have an eleven-year-old “nephew” who lives with them. He is actually the son of Agnes’s cousin, and no kin of Bess.
Bess’s life has few, if any, problems and little experience with or use for the law.
The last time she had anything to do with the police was fifteen years earlier, when her apartment had been burglarized.
Neither has Bess seen or talked to a lawyer in twenty-five years, since the time when, visiting New York, she had fallen down a flight of stairs that “weren’t right. ”
Still, her life has not been totally problem free. A few years ago, Bess became ill and diagnosed with breast cancer.
She also applied for SSI.
Being without resources, Bess understood that she had little or no choice but to submit to the round of appointments, forms, diagnoses, and hearings.
During the seven-month period when this was going on, Bess dealt with her frustration and confusion by talking to people: friends, neighbors, fellow church members.
Bess Sherman clearly felt secure in the narrow compass of her life.
The significance of the apartment, as the central fact organizing her life and relations for the past twenty-six years, transformed what most people would see as a question of little consequence into one fraught with potential to disrupt that life.
One situation had to do with noisy neighbors, a version of an actual problem Bess described to us earlier in the interview. Whereas her actual response to noise in the neighborhood was to lump it (fearing retaliation and police nonresponsiveness) and rarely leave the apartment, her response to the hypothetical situation was emphatic:
There is a clear contradiction between Bess’s previously expressed resignation to problems and her realistic assessment of law’s inaccessibility (“People say, ‘Well, why don’t you go to a lawyer, Bess? Why don’t you go to Shelley Silverberg?’ Bess can’t go, because Bess don’t have no money”) and her eager, almost joyful, litigiousness in the context of the hypotheticals. In these hypothetical situations, without the constraints that routinely operate to limit her actions, Bess Sherman derived pleasure from imagining a very different relationship to law.
By hearing and sharing stories of law with friends, by comparing notes, giving advice, suggesting the names of lawyers, and generally “talking off the nerve part,” Bess Sherman testifies to law’s power to limit her participation.