Law And Everyday Life Research Paper

The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habit and tastes of the judicial magistrate. (de Tocqueville 1959, pp. 2–20).

During the twentieth century, the boundary separating law from everyday life has become increasingly blurred. With the blurring of this boundary, the presumed direction of effect from law (‘the schools and courts of justice’) downward to ‘society’ has likewise been challenged. Increasingly, sociolegal scholars understand law and everyday life to be mutually constituted in a dynamic and emergent process wherein law is produced and applied in the everyday domain of social action. At the same time, the practices, relationships and meanings that make up the everyday are themselves, at least in part, constructed by law, or legality.

1. Legal Realism: The Everyday Life Of The Law

In the early twentieth century, a perspective called legal realism rejected the prevailing formalist perspective on law. Whereas legal formalism saw the law as having an internal logic that led to determinate outcomes, legal realism posited that law is more than the rules and pronouncements contained in judicial decisions or statutes. Legal realists understood that legal rules were not simply and mechanically applied by judges, lawyers, police and regulators. They proposed to account for the gap between ‘law on the books’ and ‘law in action’; that is, between the law as envisioned by its makers, and law as it is actually enforced on a daily basis.

Legal realism taught us that, in entering the realm of lived experience, legal rules are articulated within particular social and historical contexts that shape law’s effects. This proposition authorized an examination of those contexts and constraints, thus creating an opening to the everyday in the study of law.

1.1 Law First Perspective

Legal realism—even while it acknowledged the life, and not merely the spirit, of the law—assiduously maintained the boundary between the law and everyday life, retaining what has been called a ‘law first’ orientation (Sarat and Kearns 1993). Karl Llewellyn and E. Adamson Hoebel, in their classic book The Cheyenne Way (Llewellyn and Hoebel 1941), proposed that law performed a dual function in ordering everyday life. Frequently, the law’s prescriptions operated beneath the level of notice or consciousness ‘to make [people] go round in more or less clear ways.’ In this regulative function, the law created routines and norms that structured people’s practices and expectations. At times, however, the so-called drift of everyday life produced divergent interests, expectations, and norms that upset the orderliness of social life. Llewellyn and Hoebel referred to these instances as ‘trouble cases’ and proposed that a central function of the law is to process these cases to restore social order. ‘Law,’ they wrote, ‘exists for the breach of law and has a major portion of its essence in the doing of something about such a breach’ (1941, p. 20). How law responds to such breaches—how it selects cases of trouble, in what way it redresses these situations and with what consequences—ultimately comes to comprise the law. Accordingly, Llewellyn and Hoebel recommended empirically examining the selection, processing, and resolution of trouble cases as a way of elucidating and understanding the law. Research in this tradition focused on the everyday work of legal professionals, examining such processes as judicial decision-making, prosecutorial discretion, or police arrest practice within specific organizational and political contexts.

When the everyday world was examined within this tradition, it was only at the boundary that separated law from society, in those settings where citizens brought their disputes, claims and grievances to the attention of legal professionals. Social scientific re- search examined, for instance, the sorts of claims and awards made in small claims courts (Yngvesson and Hennessey 1975), or the advice given in lawyer’s offices (Sarat and Felstiner 1995). In short, the everyday was included in these analyses of law only in those instances when its familiar routines broke down to the point the law was mobilized to restore order, to redress an injury or to protect a right.

2. Everyday Life vs. The Law

This ‘law first’ perspective shifted somewhat as scholars began to consider the social processes and institutions that preceded law. Whereas Llewellyn and Hoebel depicted the law as intervening in social life to create and restore order, Paul Bohannon (1968) presented law as emerging out of social life. He claimed that law resulted from a double institutionalization of customary practices. This process of formalization granted to custom a force and legitimacy that eventually led to law having a life and dynamic of its own. Hence, according to Bohannon, law did more than simply reflect the everyday; it interacted with social institutions. These interactions were a source of social change.

The law first perspective was also displaced in research that examined citizens’ decisions to turn to the law. Studying the daily enforcement practices of legal agents revealed the extent to which most Western legal systems are reactive; that is, they rely on citizens to mobilize the law. Obviously, this is true in the case of civil law, where citizens seek legal remedies for private disputes. It is also true in regard to criminal law, however. In a classic study of police arrest decisions, for instance, Donald Black (1971) found that approximately 87 percent of all police–citizen encounters were initiated by citizens, either in the role of victims or witnesses. The crucial role of citizens in mobilizing both civil and criminal law directed attention to how citizens interpret situations and make the decision to turn to law.

Felstiner et al. (1980) developed a model of the interpretive process that leads up to a citizen’s decision to seek legal remedies. To begin, problems and situations (potential ‘trouble cases’) are not self-evidently injurious or legal. Therefore, Felstiner et al. refer to the first stage in this process as ‘naming,’ or defining a situation or event as injurious. ‘Blaming’ refers to the identification of a party who is responsible for the problem. Finally, ‘claiming’ entails bringing the grievance or complaint to a third party (which may or may not be a legal body) to obtain a remedy. Although the model postulates an individual decision maker, it stimulated interest in the cultural meanings and values that might compete with interpretations favoring legal action at any point in the process. In considering these matters, sociolegal research extended its analyses to the communities and cultures that exist beyond the legal arena.

Researchers were particularly interested in those instances where the law was rejected and legal protection or remedy was not sought. For instance, in a classic article entitled ‘Non-contractual Relations in Business: A Preliminary Study’ (Stewart Macaulay 1963), found that law suits for breach of contract are relatively rare between businessmen. The paramount reason for this included the availability of effective non-legal sanctions that operated within the business community such as gossip, and the giving or withholding of advice or expertise. In general, the businessmen’s reluctance to use the law in lieu of these alternatives was due to the mutual desirability of maintaining ongoing relationships, and the sense that invoking the formal law would interfere with that goal. More recently, Robert Ellickson (1991) found that neighboring cattle ranchers in California rarely invoke the law in disputes involving trespass. Like Macaulay’s businessmen, the ranchers, according to Ellickson do not want, or necessarily need, the law to achieve order.

Carol Greenhouse (1986) studied a very different community and found a similar pattern of law avoidance. She conducted an in-depth ethnography of a small Baptist community in Georgia and found that the religious commitments of the members of this community tended to suppress disputes and steer members away from secular legal processes in the event that disputes did occur. Robert Kidder (1990) studied other ‘law-avoiding’ societies, including the Amish and the Japanese, and similarly discovered in each case an incompatibility between the community’s ideological or spiritual commitments and law. The research on law avoidance thus served to correct the sense that law was paramount in ordering relationships in modern societies. By proposing that law is only one of variously competing normative orders available to citizens for achieving orderly relationships, this research further underscored the need for a serious consideration of everyday lives, relationships, and beliefs of citizens.

Although this research abandoned an exclusive or primary focus on formal law—considering informal community norms and practices as well—it maintained a sense that law and everyday life are distinct and relatively autonomous from one another. Indeed, by focusing on law avoidance, the relationship between the formal law and the informal norms of everyday life was depicted as not merely distinct but oppositional. Subsequent research and theory has challenged the idea that law and everyday life are autonomous or oppositional, suggesting instead that the two are integrated.

3. Law In Everyday Life

Since the 1980s, sociolegal scholars have begun to examine everyday life not simply as an object of legal action or a reservoir of potential legal cases, but as a domain in which law circulates, is appropriated, invoked, and produced. This view of the law rejects the notion of law as a mere instrument to be used or avoided by citizens for achieving social or private ends. Law and the everyday are seen as mutually constitutive; that is, literally ‘making up’ each other in an ongoing dynamic process.

For instance, Barbara Yngvesson (1989) has argued that the invention of law is not a one-way process. Law, she argues, is invented by citizens in local struggles over the meaning of fundamental cultural symbols such as ‘community,’ ‘neighborhood,’ or ‘rights.’ As citizens act on their understandings, law ‘emerges in the exchanges and the struggles of every- day people, in neighborhood fights and lovers’ quarrels, in the framing of claims and complaints to the police, the court, neighborhood justice and other agencies, and in the response to these agencies to such claims (p. 1709).

Citizens do not, in other words, simply mobilize the police or go to court with their preconstituted legal cases. Before the formal legal apparatus has been invoked, the cases have been fashioned out of the popular legal culture circulating in everyday life. The results of that fashioning come to constitute which cases are processed, decided, and contested in formal legal settings. Rather than imagining law as existing apart from social relations, or conceiving of it as produced solely by groups of powerful law ‘makers’ (such as legislatures), in this constitutive view, law is understood as emerging from the ‘bottom up’ as a continuing production of practical reason and action. As David Engel (1993a) writes,

Law, despite its apparent claim to ‘‘self-totalization,’’ is dependent on everyday life to give meaning to its central concepts (what is ‘‘reasonable,’’ ‘‘customary,’’ ‘‘excessive,’’ or ‘‘appropriate’’?), to root its abstract rules and principles in human understanding, and to produce implementation, compliance, and judgment. It is misleading to regard law as capable of existence apart from or in opposition to everyday life. (p. 125)

Of course, everyday life is fundamentally dependent upon law as well. Even when we act in situations that seem devoid of legal meaning, or that involve a self-conscious avoidance of law, we do not escape the constitutive power of law. The law creates roles, relationships, and obligations. It ‘names the world.’ To routinely enact the roles of wife, doctor, or consumer, or any social role, one tacitly implicates the law. In fact, the appearance of routine is in no small measure a consequence of those unspoken legal meanings.

This view of law and everyday life would take issue with the conclusions of research such as Macaulay’s and Ellickson’s. This research, in demonstrating the absence of law in the ongoing relationship between businessmen or cattle ranchers, fails to note that the very roles and relationships in which their subjects act are legal creations. Moreover, the concepts of private property or profit, for instance, draw upon legally produced and sanctioned meanings. They also fail to take into account the effect of both parties’ knowing that the law exists as an alternative if extra-legal sanctions fail. As Sarat and Kearns (1993) have written, ‘one is apt to catch more than a fleeting glimpse of law’s presence in the putatively valegal responses’ (p. 47).

Attempting to catch such a fleeting glimpse of law has led to a broadening of subjects and sites of research. One example of research that has systematically explored the presence of law in everyday life is Hendrik Hartog’s analysis (Hartog 1993) of the eighteenth-century diary of Abigail Bailey. Hartog’s reading of Abigail Bailey’s diary reveals how this woman, over the course of many years, struggled to make sense of her marriage, her husband’s sexual abuse of their daughter, and their separation and eventual divorce, as well as her own religious beliefs regarding her duties as a wife and mother.

Recently, the recognition that law and everyday life are mutually constitutive has led to an interest in legal consciousness, ideology, and resistance. The study of these topics is animated by an interest in how citizens imagine and use law. This would include how and when citizens mobilize formal law, but also how they may invoke, interpret, avoid, and deploy law and legal concepts in daily interactions even when no formal or official actors or rules are involved.

For example, David Engel’s work on the intersection of law and everyday life reflects this interest in legal consciousness, ideology, and resistance. In his study of the Education for All Handicapped Children Act of 1975 (Engel 1993b), he rejects a traditional analysis that would have traced the ways in which this legislation unilaterally constrained or defined the educational experiences of children, the meaning of their physical conditions, or the interactions that occurred between parents and educators. Instead, he examines how this legislation and everyday life within this community are interdependent and mutually shaped this social domain. At times, Engel notes, the law reinscribed ‘commonsense’ images of disability and difference, constituting the meaning and content of those social categories as they operated within the community.

In examining the interpenetration of law and everyday life, Ewick and Silbey (1998) have suggested that the concept of legality be used to augment the concept of formal law. By legality they refer to the meanings, sources of authority and cultural practices that are commonly recognized as legal, regardless of who employs them, or for what ends. In this rendering, people may invoke and enact legality in ways neither approved nor acknowledged by the law. Legality operates as both an interpretative framework and a set of resources with which and through which the social world (including that part known as the law) is constituted. In sum, they conceive of legality as an emergent structure of social life that manifests itself in diverse places, including both formal institutional settings and the everyday lives of groups and communities.

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