Critique of the Day: Ewick and Silbey, The Common Place of Law

Not sent to the class: this book kind of makes you want to never live in some parts of New Jersey (as does the movie Harold and Kumar Go to White Castle), but Frank Pasquale might tell me otherwise. Then again, who am I to talk. I once worked for a summer near South Central LA, am from boring Orange County, CA, and currently live in one of the few U.S. cities where the murder rate actually went up last year--but in the nice part.

Citation: Patricia Ewick and Susan Silbey, The Common Place of Law: Stories From Everyday Life. Chicago, Univ. of Chicago Press, 1998

Description/Critique:

This is an interesting empirical study of legal consciousness that is actually strong on theory. In fact, it seems to start from a theoretical, epistemological point: how is the law experienced? This is a different starting point than “what is the law,” but compellingly, for Ewick and Silbey that latter question (from which springs most of classic legal theory/jurisprudence) is a subset of the question of “how is the law experienced,” making this book a cornerstone of law and society inquiry, rather than the primary inquiry.

Law is thus not something that only exists and is studied, but is created by the process of inquiry and definition—this is a constitutive theory of law. E&S start this inquiry not through a textual analysis of philosophy, statute, or constitutional law, but rather by asking what is “the everyday” meaning of law as experienced by lay people in real-life situations. E&S’s methodology for this approach was to interview a random cluster sample of residents in New Jersey, achieving over 100 face-to-face in-depth interviews conducted mostly at the respondent’s home. E&S attempted to achieve diversity in racial composition, population density, and socioeconomic status by focusing on four New Jersey counties that would produce such variation. Interviews appear to be unscripted but semi-directed, with open ended questions intended to produce a more narrative-like response.

I am not entirely sure whether this was a theory-testing or theory-generating project. It appears to be theory-generating, although one critique I have of the book is that the interviewees’ responses might have been elicited in a way to corroborate the authors’ theories of legal consciousness. The book starts off by articulating its project to “illustrate the diversity of law’s uses and interpretations,” and “demonstrate that legality is an emergent feature of social relations rather than an external apparatus acting upon social life” (17). Thus, E&S’s definition of law goes beyond “formal” law as embodied by text, statute, Constitution, or even the traditional, formal constructions of law we know from political theory and philosophy.

The authors articulate three schemas of legal consciousness/experience/constitution:

1. Before the law: This is the most similar to traditional notions of law as being objective, neutral, and as an external apparatus operating on society and individuals. “The Rule of Law,” for example, or law as neutral principles (see, e.g. Herbert Weschler) or law as a buffer between the individual and his society (see, e.g., John Locke). This is the least law and society-like definition in the formal sense, but not as legal consciousness or experience: the interviewees often thought of themselves as coming “before the law,” and in an oppositional relationship in which they were at a great bureaucratic, definitional remove, with no ability to affect “the law,” nor ability to define its meaning, purpose, or ends.
2. With the law: This is closer to a law and society interactive model of legal consciousness. Here, interviewees’ stories supported the idea that an individual can work with the law, playing the rules to his/her advantage. This is a model that empowers the individual more, at least in the sense that the individual can manipulate rules. However, only those with resources can truly play “with the law.”
3. Against the law: this is a model of legal consciousness/experience that posits the individual in an adversarial relationship with the law, and this a site of resistance, successful or unsuccessful. This appears to be an extension of “with the law”—those who cannot work “with the law” occasionally act against it, by attempting to stymie the bureaucracy, subvert the goal of the legal bureaucracy by unnecessary delay (paying $10/month) or only technical compliance (doing community service at the same church at which one already volunteers). This doesn’t always work well, and in fact is often the recourse of the most powerless, who more often submit than resist.

E&S demonstrate a multivalenced definition of law as socially experienced rather than externally constructed by interweaving the interviews in their theoretical explanations of the schemas. The meaning of law is varied, and so are the interview responses. I quite like their approach, but it is often belabored and repetitive. Again, I am never quite sure whether the responses generated the theory (the above schemas) or whether the theory was tested and proved by the responses.

Moreover, the authors argue that the meaning of law is multivalenced and dynamic, and occasionally support this by exploring the ways in which law is largely invisible: automatic contracts (e.g. purchases à receipts), implied warranties, bureaucratic red tape, etc., but most of the interviews and hypothetical questions focus on criminal law (arrests, dangerous neighborhoods, etc.) or extreme torts (neighbor damaging property, etc.). If law is every day, then there should be more every day experiences—not to say that crime isn’t an everyday occurrence, but there is much more formal procedure attached to it, as opposed to a violation of an implied warranty. The definitions of law should be subtler and more shaded.