The Common Place of Law
The law is a complex and dynamic social structure that is constantly produced by people's beliefs and actions. Ewick and Silbey have identified three different understandings of legality: "before the law", "with the law", and "against the law", which are based on cultural values and position people differently in relation to the law. Contradictions and opposing views exist within legal consciousness and sustain legality as hegemonic by mediating the real world with demands for legitimacy and consent. However, the dominant cultural meanings and legal categories often ignore the experiences and needs of marginalized groups. Recognizing power dynamics, telling stories, and recognizing connections between personal experience, local practices, institutions, and authority are important in generating resistance and understanding how power is constituted. Sharing stories has the potential to reveal the collective organization of power and legality, leading to social transformation.
Legality is defined as a constantly produced social structure in what people say and do. Legality in a social context is kind of a mystery. Legality operates in a social world but exists separate from it. Ewick and Silbey listened to people's stories about the law during conversational interviews. They identify three forms of consciousness:
- before the law;
- with the law;
- against the law.
Each of these understandings of legality draws on different cultural schemas, values, and positions the speaker differently in relation to the law. All three forms of legal consciousness can only be understood in relation to each other and should not be seen as opposed. The author also suggests that the conventional distinction between structure and consciousness must be re-conceptualized and that structure must encompass ideas and resources and should be seen as emerging from social interactions.
Ideology is a form of sense-making that is imbued with power. Ideology must be constantly invoked, applied, and challenged by people in order to make sense of their lives and produce not only their lives but also the structures and contests for power within which they exist. The dynamic nature of meaning and sense-making means that internal contradictions and opposition are not weaknesses, but are instead the basis for ideological engagement and its vitality. The contradictions of ideology exist on different levels, including between cultural schemas and within each schema.
The schema "before the law" encompasses the ideal of the rule of law and its material constraints, while the schema "with the law" includes a normative aspiration for justice. Contradictory views of legality exist, e.g. law as a protection of rights (“having enough to sue") and law as a game ("a lawyer would have cost me more"). Ideological contradictions are often expressed through such statements and they make such statements invulnerable to challenge.
The contradictions between the different forms of legal consciousness sustain legality as hegemonic by mediating the real world with the demands for legitimacy and consent required of social institutions, including the law. The multiple images of legality in the stories of "before" and "with the law" make legality both ideal and practice. This shows that legality is deeply ambiguous and contains contradictory hierarchical and egalitarian doctrines.
The law is seen as both a transcendent realm and a game-like aspect of social relations. Through these forms of consciousness, legality becomes an unrecognized power that sustains everyday life. The idea of ideological consistency or purity is unrealistic and would not be accepted. Instead, a general truth is constructed alongside particular practices, and connections between the particular and the general are hidden. Court clerks draw boundaries separating "not law" from the real "law", rendering legality irrelevant to the lives of citizens. A hegemonic legality is achieved by constructing the law as existing outside of everyday life while also being securely present within it. Law is seen as an aspect of social relations where one can use everyday life experiences to gain advantage. This dual effect, where the sacred breaks through to the profane, is achieved through the openness and generality of legal concepts.
Balbus argues that the tension between the general and particular in liberal law is what makes it hegemonic. He claims that the categories of liberal law, including its mechanism of equity, are what form the essential characteristics of capitalism and reproduce the "commodity form of law". Balbus believes that law is both general and particular, sacred and profane, which makes it hegemonic. He argues that resistance involves recognizing the connection between the particular and the general, which challenges the illusory opposition and the hegemonic power that maintains it. The conditions for generating counterhegemonic accounts of legality include: recognizing the duality of hegemonic legal consciousness, recognizing the relationship between personal experience, local practices, institutions, and authority, and appreciating the way these dual threads work and shape particular experiences.
The lack of correspondence between the dominant cultural meanings and the lives of powerless people can be seen in the problems they reported. Women, racial minorities, and other less powerful groups are more likely to experience problems that are not recognized as legal issues, such as neighbor noise, disputes with spouses, harassment at work, poor police protection, housing problems, etc. These issues often go unrepresented in the dominant legal narratives and structures, leading to a misalignment between the reality of these people's experiences and the legal categories and concepts that are imposed on them. This misalignment can result in these experiences being ignored or marginalized. In some cases, people who experience discrimination may not recognize it as such because their experiences do not fit the legal definition of discrimination. This can lead to a lack of understanding of the significance of the act, difficulty attributing motives to others, and calculating their injury.
Marginalized individuals may not always see their experiences and needs reflected in the law, or legal remedies are not always effective or available. This can lead to a loss of faith in the legal system and a reliance on other forms of resistance. Understanding power dynamics is important in recognizing opportunities for resistance, as well as recognizing how the world operates through invisible mechanisms and how power is constituted.
The third condition for generating resistance is the opportunity for storytelling and the connection between history and biography. People often tell stories that make claims and interpret events, not just relate them. Resistance stories are a way for individual experiences to become socially meaningful and potentially transformative. Social structures that define and organize social interaction can create a common opportunity for storytelling and common content to the narrative. Sharing stories has the potential to reveal the collective organization of power and legality, as seen in the consciousness-raising groups of the 1960s that led to the feminist movement. These groups, made up of isolated middle-class women, revealed the operation of politics in their daily lives through their shared stories and experiences. The structure of their oppression created the conditions for its own subversion.