Week 4: The Common Place of Law--Before, With, Against

In this book, Patricia Ewick and Susan S. Silbey craft a holistic conception of legality (law) and its relationship to society. Their conception is based on decades of prior research, and is situated around the three major conceptions of reality as held by normal people in everyday life. These conceptions are, essentially, that people either act before the law, with the law, or against the law.

I actually quite liked this analysis of how people view and deal with legality, despite the fact that if you think about it, it's a little obvious. People who act "before the law" view the law as remote, as a thing, as akin to the ubiquitous "they" who always seem to know everything. They invoke the law only occasionally, often "not wanting to bother" with it. The law is impartial and exists on another plane of reality, beyond time and space. This is essentially how I view the law, not due to choice or ignorance, but probably due to the fact that I don't encounter the law except on a very superficial level.

The second conception is that people act "with the law." These are people who have more experience with legality and the system in general; lawyers, upper-class people, the RPs that Galanter mentioned in his article. These are people who recognize legality as something fluid and changing, something that can be manipulated and used to one's advantage.

The third conception is that people act "against the law," and this isn't necessarily denoting people as anarchists or criminals. People have all kinds of small ways of rebelling against the law or the system. They are not necessarily out to change rules, change the system or maneuver within it, but are instead concerned with surviving. It's a defense mechanism as much as it is an outright rebellion against the system.

Ewick and Silbey argue that the majority of people use all three conceptions at some point in their lives, their best example being Millie Simpson, who covered all three in only one story. They also argue that law and legality are not a remote entity existing outside of time and space, with no context or history--rather, legality is a process of creating rules, affirming rules, acting on rules, breaking rules, and creating new ones. Everyone takes part in this process--it is not just old white guys in funny clothes writing up laws. We continue to create a law or a rule when we act upon it, no matter how we choose to act.

One other thing that struck me in this book came closer to the beginning, pages 40-41. Here the authors mention William Sewell and his concept of schemas. He says that schemas come into existence and then must be reinforced by the people in society; if it is not reinforced, the schema disappears. The authors go on to say that we can't think of legality as something removed from us, because we continue to create it day by day. While I was reading this, I was reminded of the Nature v. Nurture argument that once dominated many fields of study. This argument is the essence of dichotomy--things/people are either born/created that way, or they have been created that way due to their environment/context.

This seems to apply to previous studies of the ways that law and society interact (as the authors point out, even the term "law and society" indicates that the two are separated and dichotomous). Legality is either created/just happens, or it moves and changes given the context in which it exists (the authors cite seventeenth century responses to witches). I'm always surprised when this Nature v. Nurture argument crops up in any sort of legitimate field of study, because the argument has largely been abandoned by the scientific community. Who a person is and how they behave is determined by a combination of genetics and environment, just as legality is determined by who/what created the law and how it changes and shifts, and who does that changing and shifting. You can't possibly separate them, and it's ridiculous to try.