The Current Legal Problems lecture series at UCL are known for bringing serious issues and preeminent lecturers, issues that a first year might find a bit daunting. For those reasons, it was with a bit of trepidation that I walked into the lecture hall for Dr. Simon Halliday‘s lecture on legal consciousness and legal hegemony.
I decided to engage the topic with the mental image of David walking into the arena to battle Goliath, and it was only when Dr. Halliday launched into his lecture that I realised I’d forgotten my sling at home and was unarmed. I spent the rest of the lecture holding on to whatever I could and screaming silently in my head. Joking aside, however, I did manage to lean into the wind and enjoy an interesting lecture that spoke well to one of the interests that set me onto the law, the interaction and understanding between the people and the law.
Dr. Halliday’s paper is co-authored by Dr. Bronwen Morgan, also a professor at the University of New South Wales in Australia, and the two use their paper to discuss both the merits and the gaps in understanding of the socio-legal understanding of legal hegemony as proposed by Ewick and Silbey’s The Common Place of Law.
It is worth mentioning that Dr. Halliday took pains in the lecture to be clear the paper does not so much disagree with Ewick and Silbey as propose that there are gaps, areas where their analysis can be taken further. This concept is explored through the application of cultural theory to the analysis of legal hegemony, which allow the breaking up of communities, no matter the size, into four categories of cultures, which can be overlaid with different legal consciousness narratives. Reading this briefly, it may seem to be a dry topic, but within those narratives one can find essentially all the ways in which a person can conceive of or engage with the law, vital understandings for anyone who wishes to take their legal education into an academic career.
The Narrative so far
Ewick and Silbey break up legal consciousness, which can be defined as the way in which the “story” of the law is understood and accepted by people, into three distinct groups. They label these groups into; Before the law, With the law, and Against the law. In order to understand the argument Doctors Halliday and Morgan are making regarding the gaps, a brief understanding of the original three legal consciousness narratives would help.
Before the law is a legal narrative that focuses on the law as a neutral realm, strictly confined and objective and separate from ordinary life. People that look to the law with this narrative in their mind see the law as something ideological, an impartial concept that looks at the law as something that ignores different strata or other categories of people.
With the law is a narrative that contrasts with that view by looking at the law as a “game”, something that can be used in ordinary life for gain. Individuals within this narrative seek to use their own resources in conjunction with the law for success in a strategic gaming method. As opposed to Before the law, this is a very realist approach to the law. It does not villify the law, but neither does it attribute to it glorious ideals. Rather, it is merely a tool in the arsenal for success.
Against the law is a different beast from either of the aforementioned. People in this narrative are hostile to the law, viewing it as a menacing power, alien to their existence and something they can have no fair interaction with. They may not attack it directly but will seek to subvert it and only view it as a tool for what they view as the elite, the oppressors.
Using these narratives, Ewick and Silbey argued a link between two of the narratives, Before the law and With the law. Many people will have both of these narratives in their understanding of the law and that understanding of the law for them will create the structure around which they will base their interaction with the law and their society.
Bridging the gap
Doctors Halliday and Morgan analysed the work by Ewick and Silbey, and found it to contain gaps in the analysis, considering in particular that the three narratives were missing one, a fourth narrative. In order to substantiate their claim, they graphed the narratives onto an analysis of cultural theory that creates four cultural groups in the quadrants. Those narratives end up being; Fatalism, Heirarchism, Individualism, and Egalitarianism.
Overlaying the legal narratives onto these cultural groups demonstrates the argument. These cultural narratives get fused to the legal narratives from Ewick and Silbey. Fatalism is overlaid with Against the law, Individualism gets With the law, and Heirarchism gets Before the law. The link between Before the law and With the law can be seen as a positive link in the narratives, but there is a narrative missing. There is no narrative under Ewick and Silbey for Egalitarianism, and this is where Doctor Halliday’s work steps in to fill in the empty space between their work and Ewick and Silbey.
Linking the chain together
This is where the links in the data come together to form the paper’s proposal, that by using this cultural theory, not only can it be seen that there is a positive link between the Heirarchism and Individualism, but there is also an interesting dilemma. What is the missing legal narrative? What part does it play in analysing this concept of how people look at the law, and most importantly, what does it say about an interesting fact, namely, that the law as seen in the positive link between Before the law and With the law seems to dominate the legal discussion. Why are the negative stories of the law buried?
Doctors Halliday and Morgan created the concept of a fourth legal narrative, called Dissenting Authority and containing elements of all the others. This narrative was created from analysing the interviews of fifty seven different interview sessions with members of radical action groups that was performed by Doctor Brian Doherty who authored Radical Participation: Activists’ Identities and Networks in Manchester, Oxford and North Wales.
Using the interviews, the two created Dissenting Authority to explain the facts that came out of the analysis, that these individuals, who appear to have a strong link to the legal narrative Against the law, also strangely showed tendencies of the other two narratives that looked upon the law favorably.
Who are these people? We know who the other narratives are. We know that people who subscribe to the Before the law narrative are those people for whom the law is an ideal, they see the law as the perfect beast, standing guard over all equally with a vigilant eye. We know that people who fill the narrative of With the law play the system, the type of individual who makes the law work for them, and we know that people Against the law see the law as a foreign entity, an enemy that serves no legitimate purpose for them. What the interviews showed was a hybrid, a legal narrative born of individuals who believe in the system, but only barely. This group looks at the law as an entity that can be used for legitimate purpose when used for antisocial behavior like crimes against the person, but also sees the law as a tool for the elite to maintain status, a game like system where the rules favor the upper class. As discussed before, this narrative grafts over the Egalitarian culture and the frustration these individuals feel can be seen from the definition of their culture group. They see the law as a fundamentally necessary, but dangerously unequal framework that binds unpleasantly to their life.
Taking it farther, it can be seen from the interviews that the determined and defiant comments from some of the activists turn melancholy and defeatist. Time and again the social activists demonstrated through their conversations that they were burning out, that their organisations were littered with people for whom the Fatalist cultural narrative had taken over from the Egalitarian. Using this data, Doctors Halliday and Morgan demonstrated that like the positive link between Individualism and Heirarchism, there was a negative link between Egalitarianism and Fatalism and the legal narrative within that, as these fiery social rebels railed against the system and invariably fell back, exhausted and embittered. It was this realisation from the data that finally answered the question of why the positive legal narratives seem to outweigh the negative commentary. Unable to maintain a cohesion, the cultural identity of the Dissenting Authority constantly bleeds members into the Against the law narrative, who by definition no longer participate in the discussion. Their isolation leaves the social activists at a two to one disadvantage when shaping the commentary of our legal hegemony, a disadvantage that so far has served to keep the general interpretation of the law on the positive side.
It would be great if there was a point soon…
And there is, an important one at that. We have all been exposed, as students, to the various methods and rationales for the evolving nature of jurisprudence. Some argue from a moralist stance, some from a practical, but all rational law makers seek to create law that works not only for their particular brand of belief, but also for their constituent cultural groups.
It’s not just good governing, but good sense to make laws that are accepted by those who buy into Heirarchism, that work for those Individualists who do battle in the system, and in a good system, to even attempt to slake the hunger of the Egalitarians for a legal system that balances and differentiates between antisocial law breaking and political statements. In order to craft that law, there needs to be more than just a need for the law, there needs to be an understanding of the people in play under the law, a methodology for the legal hegemony to interact with the people. The work being done by Doctors Halliday and Morgan, building on the work of Ewick and Silbey, give an insight into the tools anyone who seeks to understand more than just how to practice the law, but also yearns for a more complete understanding of what the law is, from a meta viewpoint.
This article does not do the lecture justice, and certainly can’t even break the surface of the full work that is upcoming. Anyone even remotely interested, and I hope most are, should find the full paper and read it when it comes out. It will be available in the Current Legal Problems journal, with advanced access likely in March. I’d also recommend the CLP lectures for anyone who wants to bite off more than they can chew and then see if they can swallow it. I did, and and it tasted fantastic.