A common understanding of “law” suggests a fixed and immutable set of guidelines that differentiates right from wrong, and the institution of penalties upon
“breaking the law.” However, much like concepts of race (Omi and Winant 1994) and sexualities (Chauncey 1993), law is both durable and malleable. It is a social
construction and fluid in its boundaries (Schauer 2006). Berger and Luckman (1966) argue that all of social order and social life is a social construction. In regards to law, Berger and Luckman give an example of the death penalty. They write that the,
“institution of the law posits that heads shall be chopped off in specific ways under specific circumstances and that specific types of individuals shall do the chopping (executioners, say, or members of an impure caste, or virgins under a certain age, or
the U.S. House Subcommittee on Population and the Census at the time and Arthur Fleming who was Chair of the U.S. Commission on Civil Rights.
those who have been designated by an oracle).” Law shapes how people make meaning in their lives at both the structural and individual levels, intersecting with institutions such as the state, religion, and family, among a few (Engel and Munger 2003; Ewick and Silbey 1998; Merry 1990; Sarat and Kearns 1993; Nielsen 2000). In these intersections, people fight to recreate or to affirm the law in their everyday life. For instance polygamy has been outlawed in the United States since 1862 with the Morrill Anti-Polygamy Act;
however, polygamy is practiced in the some states such as Utah, Arizona, and Texas (Dobson 2006).25
Although law is malleable and durable, Max Weber (1947) writes about “the subjective meaning-complex of action” which can be applied to the intersection of social agency and legal consciousness. Unlike Marx, Weber suggests that culture can influence agency while agency can influence culture. Weber describes the subjective interpretation of action as an effect to understand human behavior in terms of “the concepts of
collective entities” (Weber 1947: 102). This suggests that for Weber a dual character of action/consciousness in which thoughts or concepts “have a meaning in the minds of individual persons, partly as of something actually existing, partly as something with normative authority” (Weber 1947: 101-102).
Because Weber suggests a dual character of action and consciousness in which concepts have meanings in people’s everyday life, Merry extends by suggesting the concept of legal consciousness. Merry (1995: 5) defines legal consciousness as “the ways people understand and use law” and as “the way people conceive of the ‘natural’
25 In 2001, the state of Utah convicted Thomas Green of criminal non-support and four counts of bigamy for having 5 serially monogamous marriages, while living with previous legally divorced wives.
and normal way of doing things, their habitual patterns of talk and action and their commonsense understanding of the world.” For instance, a person is in a car accident. It is the other persons fault, but the insurance company will not issue a loaner car. The person in the accident responds by saying that if the insurance company does not provide a loaner car then she will lose her job and have to sue the person who caused the
accident. In this example, the person invokes legal consciousness in suggesting that she will have to sue the person who caused the accident. Legal consciousness is in the practical knowledge in which people do things (Bourdieu 1977). Scholarship about legal consciousness has demonstrated how law shapes the everyday lives of people (Ewick and Silbey 1992, 1998; Hartog 1995; Nielsen 2000; Sarat 1990; Sarat and Kearns 1995;
White 1990). Many empirical studies of legal consciousness exist about the white working class and middle class people (Greenhouse 1986; Merry 1990; Engel 1983;
Engel 1984; Merry and Silbey 1984; Yngvesson 1988), while other studies have uncovered legal consciousness by focusing more on people of color rather than socioeconomic status (Bumiller 1988; Sarat 1990; Friedman 1985; Tyler 1990; White 1990).
Extending Merry’s definition, Ewick and Silbey (1998) argue that legal consciousness develops through individual experience and changes with contradictory experiences. People will shift what they are doing if it is not working or contradicts what happens to them. Swidler (1986) calls this “strategies of action.” “Strategies of action”
are the normative rules and values and the familiar, repeated ways of practices. Swidler (1986: 273) suggests that culture can be understood as “a ‘tool-kit’ of symbols, stories,
rituals, and world-views, which people may use in varying configurations to solve different kinds of problems.” Individuals develop particular “strategies of action” which are based on repeated practices that are linked together over time. Culture consists of repertoires of skills, styles, habits, and techniques which explain patterns of action.
Individuals consistently learn new repertoires and competencies, especially when the existing ones prove to be inadequate or inconsistent or when new ways of examining culture become available. When one experiences contradictions in one’s life, Swidler suggests that individuals and groups will tend to abandon familiar repertoires for new ones.
In Ewick and Silbey’s book, The Common Place of Law (1998), they found that people often abandon familiar repertoires for new ones. Most people would not have considered the legal system as an avenue toward a solution to their problems. However, many in their study began using the legal system as a solution to their problems. Ewick and Silbey find three orientations to law: before the law; with the law; and against the law. Those respondents who were “before the law” saw the legal system as a trap, something standing in the way of their everyday life. Those respondents who were seen as “with the law” engaged the legal system, using it to work for them. Those respondents who were “against the law” were people who viewed the legal system as a trap and supporting systems of oppression, or they resisted the legal system. Many (Merry 1995;
McCann 1994; Thompson 1975) argue that those who use the legal system as a tool of resistance have legal consciousness.
Another study about legal consciousness examines public speech. Nielsen (2000) finds variations in how legal consciousness is applied to public speech by gender, class, and race. She finds four paradigms to the law: the freedom of speech paradigm, the
“autonomy” paradigm, the “impracticality” paradigm, and the distrust of
authority/cynicism about law paradigm. Those respondents who argued the freedom of speech paradigm used a “slippery slope” argument, that is, if one form of speech is restricted then what is to stop other forms of speech from being restricted (Nielsen 2000:
1074). In the “autonomy” paradigm, respondents downplayed public harassment and did not want to be perceived as victims. Respondents who were in the “impracticality”
paradigm suggested that it was impractical to catch, try, and punish individuals who violated public harassment laws, if the laws existed. Finally, respondents who were categorized as having a distrust of authority or cynicism about the law argued that the laws would not be enforced because of a lack of authority. African American
respondents specifically were more likely to argue that public speech could not be legally enforced because of their lack of belief in authority. One African American respondent even compared the idea to affirmative action saying “They’re never going to enforce laws like that anyway. Look at affirmative action – it’s all going away anyhow”
(Nielsen 2000: 1084-1085). Nielsen’s findings indicate that social groups experience and define legal consciousness differently based predominately on social hierarchies.
In another study, Anna-Maria Marshall (2005: 2) extends the concept of legal consciousness in everyday life and asserts the concept of “legal consciousness of injustice.” She defines legal consciousness of injustice as “represent[ing] an effort to
understand the relationship between law and social change from the bottom up, where changing social, political, and cultural values create conflict in everyday life” (Marshall 2005: 2). She argues that people do not necessarily need to understand the exact
interpretation of the law. In her study of sexual harassment, many of the women applied more stringent rules to define an event as sexual harassment than what is stated in the written policy, but were aware of sexual harassment occurring in the workplace. Many of the respondents were aware of the sexual harassment; however, they did not seek legal assistance because they felt that it was pointless, that is, the law would not be enforced. I turn now to a discussion of Sewell’s argument and the concept of statistical consciousness.