The study of legal consciousness within socio-legal studies entails a focus on the ordinary, quotidian and, crucially, almost invisible life of law in society. To study legal consciousness is to study the taken-for-granted and not-immediately-noticeable: the background assumptions about legality which structure and inform everyday thoughts and actions. This article examines legal consciousness through the lens of the cultural theory of Mary Douglas. The application of her grid–group analysis offers important insights into the dimensions along which legal consciousness may vary. In doing so, it sheds light on an under-studied feature of the legal consciousness landscape: collective voices of dissent. We explore, via a secondary data analysis of radical environmental activists, a legal consciousness which expresses particularly clearly a collective rejection of the authority of state law. The analysis reveals a complex and multi-faceted legal consciousness where a rejection of state law may be coupled with a gaming approach towards it for collective aims, and can be fuelled by a faith in legality above or beyond state law. It also points to the organizational vulnerability of dissenting collectivism and a corresponding affinity between a legal consciousness of collective dissent and one of fatalism. Our analysis allows us to critique and refine Ewick and Silbey’s influential account of legal consciousness. These analytical and theoretical insights point towards a future research agenda, which maintains the legal consciousness tradition of focusing on the structural qualities of law while avoiding the pitfalls of a theory of general legal hegemony.
Much legal study, perhaps most of it, by its very nature concerns itself with the extraordinary. To focus on case law is, as we know, to focus on the unusual. Most disputes do not reach the stage of court judgments, let alone litigation. 1 Socio-legal research of the law in action, such as studies of the police or regulatory enforcement processes or the implementation of law in public agencies, represents an attempt to shift the scholarly focus from the extraordinary to the ordinary. These visible practices have been observed and documented by researchers for many years as a key element of the socio-legal enterprise. The study of legal consciousness within socio-legal studies, however, represents a shift even further into the ordinary, quotidian and, crucially, almost invisible life of law in society. To study legal consciousness is to study the taken-for-granted and not-immediately-noticeable: the background assumptions about legality which structure and inform everyday thoughts and actions.
The history and development of legal consciousness research within the law and society field has been recounted a number of times. 2 Although these histories vary in emphasis and tone, they are united in their description of it as having become an important focus of socio-legal research over the last 30 years or so. 3 Despite having its detractors, 4 the principal benefits of legal consciousness research which sustain its vitality within socio-legal studies are three-fold, it is suggested. First, as already noted, the study of legal consciousness offers an interesting and distinctive way of studying the role of law in society. Whereas much socio-legal research has placed a stress on law’s instrumental role within society, legal consciousness research places a stress on law’s so-called constitutive role within society. This distinction (not particularly helped by the terms used) relates to the different ways in which law is considered significant for social relations. Within an ‘instrumental’ view, law is framed primarily as acting upon society from an external position, existing in a separate sphere rather than being ‘an integral part of that which it regulates’. 5 Within the so-called ‘constitutive’ understanding of law, it is taken to shape actors’ understandings of social relations and provides some of the categories they use to give meaning to social life. These approaches should not be viewed as mutually exclusive, of course. The better view is that law works both instrumentally and in a ‘constitutive’ sense. 6 Nonetheless, we can see that legal consciousness research helps to sensitize the socio-legal field to the more subtle ways in which we may detect law-in-action. Drawing on the insights of Critical Legal Studies (CLS), the notion of legal consciousness reminds us that law is not only constructed by society but also itself structures society.
However, second, in contrast to the general thrust of CLS, for socio-legal scholars the notion of legal consciousness suggested an empirical research agenda. Within the CLS tradition, although legal consciousness was a description of law’s hegemonic role in sustaining domination, it operated as a theoretical tool largely in the absence of empirical enquiry. 7 The notion of law possessing hegemonic power was a theoretical postulate. 8 But for socio-legal scholars, the capacity of law to maintain the faith of society despite, at best, its failure to deliver on its many justice promises and, at worst, its oppression of many within society has been, in part at least, an empirical puzzle. How can we theorize about law’s hegemonic power until we find out exactly what society does think, feel, and do about law? It is this empirical gap to which law and society scholars have responded. 9
Third, legal consciousness research generally examines legality outwith the formal sites of law. Methodologically, legal consciousness studies, consistent with other aspects of socio-legal scholarship, 10 make an explicit and sustained effort to ‘de-centre’ official law, as the process is sometimes described. What is meant by this is that researchers emphasize the multiplicity of actors beyond formal legal officials who need to be incorporated into understandings of how law works. Consequently, legal consciousness studies typically take as a starting point not the formal institutions and actors of the legal system but people’s perceptions and experiences of law in various ordinary settings, such as welfare agencies, 11 workplaces 12 and, indeed, in everyday life generally. 13 Legal consciousness has also been used cross-nationally to compare collective understandings of and orientations towards legality, and to explore its role in social order. 14 The legal consciousness research field, then, helps to displace assumptions about the centrality of formal state law (although some scholars contest the degree to which this has been achieved). 15
Despite these benefits, however, one of the principal researchers in the field, Susan Silbey, not so long ago cast doubt on the continued usefulness of the concept. 16 Silbey had earlier proposed a view of legal consciousness as a ‘cultural practice’, which bridges structure and agency. 17 Legal consciousness, Ewick and Silbey argued, is not entirely individual or subjective but ‘an emergent structure of social life’, 18 a collective construction that ‘simultaneously expresses, uses and creates publicly exchanged understandings’. 19 It is:
part of a reciprocal process in which the meanings given by individuals to their world become patterned, stabilized and objectified. These meanings, once institutionalized, become part of the material and discursive systems that limit and constrain future meaning making … it is through the invocation or application of these schemas in particular settings and interactions that we actively make, ‘as we make sense’ of, the world. 20
Ewick and Silbey had proposed an influential scheme of three cultural narratives of legality—three separate characterizations of law in society which, they suggested, are drawn upon and reproduced in a routine fashion in commonplace lives. 21 They named these three narratives according to the characteristic orientation towards law implicit in the narrative: (i) ‘before the law’; (ii) ‘with the law’; and (iii) ‘against the law’. Each narrative had a double face, as it were, representing both a characteristic individual response to law and a cultural schema that made sense of law at a structural level. Standing ‘before the law’ captured an image of law as ensuring collective fairness, equality, and justice. Playing ‘with the law’ was a story where law is a morally neutral game that can be played to individuals’ advantage if they are clever enough and have the right resources. Being (up) ‘against the law’ told yet another story of law where it is the expression of brute power, exercised unpredictably and resisted by individuals where cracks in that power appear (though no attempt to alter the power structures themselves is made).
Although the ‘double face’ of these varied narratives permitted one to combine an appreciation of individual orientations towards law and policy with the way in which legality operates as a social structure, Silbey’s concern was that subsequent studies had failed to do this. Instead, she claimed, some legal consciousness work had ‘lost the social’ and had become merely ‘studies of individual psychology and its accommodation to pre-defined policy goals’. 22 She feared that the theoretical construct of legal consciousness was being replaced with the empirical measures of that construct: citizens’ experiences and discourse about law. 23 Perhaps, she noted, it was ‘time to move on’. 24
This article reconsiders the promise of legal consciousness for socio-legal research and argues that, contrary to Silbey’s suggestion, the time to abandon the concept has not yet come. Rather, we suggest that legal consciousness is an important concept that still has work to do in helping us understand law in society—work that reveals the ways in which legality structures thought and action and can at times disempower both those whom law disadvantages and those who would use law to reverse their disadvantage. We approach the topic of legal consciousness through the lens of the cultural theory of the British anthropologist Mary Douglas. The application of cultural theory sheds light on an under-studied feature of the legal consciousness landscape: the voices of dissenting collectives—a fourth ‘narrative’ of legal consciousness to supplement the three identified by Ewick and Silbey. Like Fritsvold, 25 on whose work we build, we explore in depth, via secondary data analysis, a legal consciousness which expresses a collective rejection of the authority of state law.
In addition to adding this fourth narrative, the use of cultural theory also permits us to add depth to Ewick and Silbey’s influential account of legal consciousness. Cultural theory stresses the dimensions along which legal consciousness varies and which thereby structure legal consciousness narratives. This reveals that elements of Ewick and Silbey’s narratives actually belong to more than one variant of legal consciousness. Our data demonstrate that, in addition to rejecting the legitimacy of official law, collective dissent harnesses the gaming potential of state law (which we would associate with Ewick and Silbey’s ‘with the law’ narrative) and is fuelled by a sense of a higher transcendent law above state law (which we would associate with Ewick and Silbey’s ‘before the law’ narrative). Cultural theory thus plays both a positive and a critical role here: positively, it draws our attention to the two key dimensions which structure the variations within society’s legal consciousness; critically, in so doing it opens up a way to refine Ewick and Silbey’s influential account. That refinement, which we argue maintains the legal consciousness tradition of focusing on the structural qualities of law while avoiding the pitfalls of a theory of general legal hegemony, provides fruitful directions for an ongoing research agenda.
Cultural Theory and Legal Consciousness
The cultural theory framework of Mary Douglas has been applied within the social sciences to a wide and disparate range of topics, from the social construction of nature 26 to responses to climate change, 27 from perceptions of risk and blame 28 to styles of public management, 29 and from models of administrative justice 30 to differences in regulatory character. 31 Although its theoretical framework is now well established, it is worth summarizing again for the purposes of our analysis. At the base of cultural theory is a focus on social organization—how do we organize ourselves, how should decisions be made, who gets to decide what (and why), and so forth?
The anthropological theory of culture starts from the distribution in a community of different attitudes to authority and fairness. Thus it directly addresses divergent ideas of justice and different allocations of blame … It postulates that in any community the holders of power will have a limited range of strategies for securing their positions, and dealing with criticism … The critics, rivals and other opponents will likewise have a limited range of strategies … [T]he life of a community depends on a normative debate about how it should conduct its affairs … [A]ny community, however small, has in embryo four cultural types, each in debate with the others, and each anchored in a particular relation to power and authority … Each type of culture is a bid for space, time and resources for a particular form of social organization. 32
Cultural theory, then, like much legal consciousness research, 33 stresses the social construction of reality and a plurality of cultural perspectives. And it reduces cultural variation to a more simplified scheme for analytical purposes. The four cultural types referred to in the quote above are the product of the combination of two dimensions—one horizontal, one vertical—along which cultures vary, both of which concern social organization. The first dimension—often referred to as the ‘grid’ dimension 34 —relates to the extent to which structured authority and differences of rank, position, and status are considered acceptable. At one end of the spectrum, there is a preference for authority exercised through traditional rules—a ‘system of organization by formal distinctions and delegations and divisions of responsibility’. 35 At the other end of the spectrum, there is distaste for hierarchy and difference in rank and status. Substantive equality is preferred. The second dimension along which cultures vary—often referred to as the ‘group dimension’—relates to the extent to which groups constrain individual action. At one end of the spectrum, there is a preference for the group, with the interests of the group and group decision-making being privileged over individual freedom and autonomy. At the other end of the spectrum, there is a preference for individual freedom and the capacity for individuals to negotiate their way through life, unconstrained by considerations of any group. When these two dimensions are combined, as Figure 1 illustrates, it produces what Douglas terms four ‘cultural biases’ 36 : (i) deferential collectivism (high grid/high group); (ii) dissenting collectivism (low grid/high group); (iii) individualism (low grid/low group); and (iv) isolation/fatalism (high grid/low group). 37
Cultural Theory Applied to Legal Consciousness
This notion of there being two basic dimensions which structure variations in cultural bias is, we suggest, the key tool of cultural theory which is useful for the study of legal consciousness. What meaning would these dimensions have when applied to the topic of legal consciousness?
The ‘Grid’ Dimension
Our suggestion is that the ‘grid’ dimension reflects variations in the extent to which the authority of formal state law is respected. At the high end of the grid dimension, state law commands respect by virtue of its formal status. Law is the product of superior decision-making. It is the lifeblood of the structured system of authority. In this way, it is powerful and attracts the compliance of its subjects. At the low end of the grid dimension, however, where there is distaste for hierarchy and status differences, state law does not, in and of itself, command respect. The ‘low-grid’ preference for equality of subjects means that state law must earn its respect. Compliance with and support for state law, then, is not automatically generated but is, rather, contingent on the terms of extra-legal normative schemes. Law is supported only to the extent that it coincides with substantive values and moral principles which come from outwith law and are used to assess and critique law. The subjects of law are not deferential and do not feel constrained by its authority. Rather, they feel the capacity to resist it and/or to take a gaming and instrumental approach to it where possible.
This notion of a spectrum of levels of respect for the authority of state law is, of course, a familiar feature of other sub-fields of socio-legal research. We see it reflected, for example, in Kagan, Gunningham, and Thornton’s typology of corporations with regard to environmental regulation. 38 The grid dimension underpins, we suggest, their depiction of a spectrum of increasing corporate commitment to compliance with regulation, producing ideal types of ‘laggards’, ‘reluctant compliers’, and ‘committed compliers’. Equally, it underpins Halliday’s analysis of public officials implementing welfare law, 39 where he describes a spectrum along which street-level bureaucrats vary in their commitment to complying with administrative law. The notion of taking a gaming approach to law is also central to McBarnet and Whelan’s analysis of corporate practices in relation to tax. 40 But the grid dimension should also be familiar to legal consciousness scholars. A gaming approach to state law is a key element of Ewick and Silbey’s ‘with the law’ legal consciousness narrative and is to be contrasted with the deferential subjects of the ‘before the law’ narrative. 41 The contrast between their ‘with the law’ and ‘before the law’ narratives, then, reflects (in part at least) the spectrum of respect for the authority of state law inherent in the ‘grid’ dimension.
The Group Dimension
In terms of the ‘group’ dimension, this straightforwardly reflects the extent to which individualized interests and senses of collectivism colour orientations towards legality. So, for example, when in the ‘low-grid’ zones, formal state law is being critiqued and resisted from some external vantage point, the group dimension helps us understand in whose name and for whose interests the critique is being made. To offer an extreme example, the individualistic anarchism of Robert Nozick 42 and the collective anarchism of Bankowski and Mungham 43 can be set at opposing ends of the group dimension. Equally, where a gaming approach to law is being taken, the group dimension helps us understand for whom the game is being played. The individualistic gaming discussed in Ewick and Silbey’s ‘with the law’ narrative 44 is exemplified by McBarnet and Whelan’s account of ‘creative compliance’ with corporation tax regimes, 45 for example, and can be contrasted with the gaming legal tactics of radical environmental activists which are, as discussed below, underpinned by a much more collectivist ethos.
At the ‘high-grid’ end of things, by way of contrast, where state law is deemed, in relative terms, to be more powerful and constraining, the group dimension helps us understand varying levels of acceptance of such constraint. At the ‘high-group’ end of the spectrum, relative deference of individuals towards the authority of state law is accepted as part of the proper order of things. State law is a necessary and beneficial feature of the management of collective interests. Such is reflected, we would argue, in Ewick and Silbey’s description of their ‘before the law’ narrative. 46 At the ‘low-group’ end of the spectrum, however, the relative powerlessness of individuals and the authority of law over them are perceived as more oppressive. State law is less a beneficial feature of the management of collective interests and more a form of brute power, only tenuously and unpredictably related to the individual’s interests. Individuals are more likely to feel powerless vis-à-vis the law. Such is reflected both in Sarat’s 47 and Cowan’s 48 discussion of the legal consciousness of welfare applicants, and in Ewick and Silbey’s ‘against the law’ narrative where law is depicted as capricious and a product of arbitrary power. 49 It is also reflected in the familiar image of fatalistic ‘lumpers’ in relation to dispute resolution. 50
Grid and Group Combined
Our argument here is that the four cultural biases of cultural theory, when applied to legal consciousness, emerge as four core cultural discourses about legality: deferential collectivism, dissenting collectivism, individualism, and fatalism/isolation. Much like the approach of Ewick and Silbey, 51 our suggestion is that these represent a repository of key ‘narratives’ or characterizations of legality that may be invoked in making sense of everyday life. They are a pre-packaged set of basic background assumptions about law, as it were, that are drawn upon in the routine sense-making of life and which thus inform everyday thought and action. Particularly in complex societies where individuals move in and out of many different settings in the course of daily life, attention must be paid to the particular context in which cultural biases are being expressed and invoked. We should not expect an individual to retain a coherent cultural bias across the domains of family, work, leisure, local community, political community, and so forth. 52 The unit of analysis here is the discourse, not the individual. 53
The reduction of social variation to four types (whether of ‘bias’, ‘discourse’, or ‘narrative’) is, of course, vulnerable to the familiar criticism that sociality is much too complex to be captured in such a simplified analytical scheme. However, it must be stressed that the purpose of the scheme (certainly in this article) is to enable us to sketch out some ideal type positions which enable comparison between legal consciousness discourses which are theoretically productive. The four characterizations of law are relative and not absolute positions. The use of a two-dimensional simplified scheme allows us to ‘zoom out’, as it were, and view some major landmarks on the legal consciousness map. Such an approach has serious limits that risk irking those who prefer to drill down to detail and who are sceptical of totalizing schemes. We acknowledge those limits and have sympathies with the irked. In the real world, we acknowledge that much will be found in the spaces between the ends of the dimensional spectrums. Consequently, the four ‘zones’ of legal consciousness that we derive from cultural theory represent abstracted images of a complex social reality. In the routine sense-making of everyday life, empirical reality will be much richer and more contradictory than these abstracted images. We should expect there to be considerable ‘slippage’ between types of legal consciousness.
But at the same time, we should not be shy about the benefits of our approach. Ideal types are analytical constructs-—combinations of dimensional extremes. Their job is not so much to describe, as to help us analyse a messier social reality. 54 As we will argue in due course, despite clear limitations, our approach is theoretically productive in that it highlights a gap in the research field and generates a focus for future research. That gap is the relative neglect of collective dissent and collective agency in the analysis of legal consciousness. Indeed, this gap can be seen most clearly in the influential work of Ewick and Silbey. 55 Our suggestion from the analysis above is that Ewick and Silbey’s narratives have clear affinities with only three of the four discourses about legality that we derive from cultural theory: ‘before the law’ with deferential collectivism; ‘with the law’ with individualism; and ‘against the law’ with isolation/fatalism. What is largely missing from their analysis is dissenting collectivism with its sense of collective agency to try and alter the structures of power in law. 56 This is a curious omission given the history of US law and society scholarship on social movements directed at legal and political change. 57 And, of course, Ewick and Silbey are well aware of this body of work. 58 However, rather than focusing on ‘more organized and collective challenges to power’, they choose instead to focus on the ‘mundane practices and secondary adjustments of powerless persons’. 59 This may, of course, simply be a reflection of their dataset. In a dataset of just over 100 interviews in New Jersey, exploring,
a range of situations and relationships, including consumer purchases and sales, housing, neighborhood and community matters, medical services, relations with educational and public institutions, and work and employment, as well as family and emotional connections … [.] 60
it may simply be that insights into a legal consciousness of dissenting collectivism did not emerge. Equally, it may be that Ewick and Silbey’s choice to focus largely on what we would term ‘disempowered resistance’ to the power of law reflects a fatalistic theoretical positioning on their part as regards the power of law in society. They note, for example, that transformations in the exercise of power in society, away from public and visible methods to ‘progressively finer channels’, makes power less vulnerable to collective forms of protest. 61 As Marshall has pointed out, 62 Ewick and Silbey do suggest at one point, albeit very briefly, that these everyday tactical forms of resistance may prefigure collective action that presents a broader challenge to oppression. This evokes a tantalizing sense of a link between everyday resistance and dissenting collectivism, where the potential for posing a broad challenge to oppression depends on the extent to which that resistance is prefigurative or disempowered. To explore this link further, we tested, through empirical analysis, our theoretical deduction that a fourth narrative regarding collective dissent should be included within the study of legal consciousness. As an extreme case study of ‘low-grid/high-group’ cultural bias, we selected an interview dataset regarding radical environmental activists and conducted a secondary analysis. It is to this dataset that we now turn. Our analysis reveals an interesting and reasonably complex orientation towards legality, one that portrays legality as having simultaneous facets of illegitimate villain, useful tactical collective tool, and higher ideal. But in addition to fleshing out this new fourth narrative, our case study of dissenting collectivism forces us to re-assess the cogency of Ewick and Silbey’s influential scheme. The case study reveals that cultural theory adds depth, context, and structure to Ewick and Silbey’s narrative scheme.
Radical Environmental Activism and Legal Consciousness
The data we analysed were accessed through the ESRC’s data archive. They were originally collected for a project conducted from 2000 to 2002 entitled Radical Participation: Activists’ Identities and Networks in Manchester, Oxford and North Wales.63 The empirical starting point for that project was the Earth First! network which during the 1990s had been the main initiator of environmental direct action in the UK. The areas of Manchester, Oxford, and North Wales were selected for study because they each had a history of local non-violent direct action groups from the 1970s onwards. A total of 57 semi-structured interviews were conducted. Interviewees included: the then core current activists in each area; current activists whose main involvements were not with Earth First! but who still had some ties with Earth First! ; and those who had been involved in anarchistic direct action in the locality prior to the 1990s and the emergence of Earth First! Interviews focused on individuals’ involvement in direct action, views on the activist community, trajectories into and out of activism, family and educational background, lifestyle, and views on social and political change.
As noted above, the selection of this dataset was theoretically driven. In contrast to many legal consciousness studies, we did not choose to explore the legal consciousness of a disparate group of research subjects. Instead, we selected a dataset which we associated with the theoretical depiction of dissenting collectivism set out in cultural theory. The presumption was that it would be there, if anywhere, that the missing fourth key legal consciousness narrative would be found. Nonetheless, the fact that this is a secondary analysis permitted us to follow the broad methodological trend within legal consciousness work of avoiding direct questioning about law and, instead, observing the characterizations of legality which emerge in the ways in which subjects discussed their lives and actions. Equally, our overall analysis is the product of a dialogue between theory and data: the selection of data was theoretically driven, but the empirical analysis prompted us to refine our theoretical insights, sometimes in ways that challenged the analytical neatness of the categories of cultural theory.
Our theoretical conclusion drawing on the resources of cultural theory led us to expect that evidence of dissenting communities’ legal consciousness would show considerable suspicion towards formal state law. This finding is supported by earlier work of Fritsvold 64 who also explored the topic of legal consciousness through qualitative interviews with radical environmental activists. Fritsvold’s analysis, like ours, suggested the importance of an additional narrative of legal consciousness that is not captured by Ewick and Silbey’s typology, to which he gave the name ‘under the law’. His work emphasized the fundamental illegitimacy of the legal system as a whole as being core to this orientation to legality. Our own data certainly confirm this. However, we argue that a considerably enriched and more multi-faceted understanding of dissenting collectives’ orientation to legality can be gleaned from our data. This flows in part from multiple threads within this orientation that are present in the data; and in part from the links back to cultural theory that can be made from the data. These illuminate larger questions of agency, values and sensibilities in relation to formal authority. They also illustrate the vulnerability of dissident collectivism’s legal consciousness.
Three Strands of the Legal Consciousness of Dissenting Collectivism
We suggest there are three principal strands to the legal consciousness of dissenting collectives visible in the data. The first is the understanding, already noted, of formal state law as fundamentally illegitimate, the second is an incipient sense of an alternative conception of law which emanates from somewhere other than the state and is more closely related to justice and ethics, and the third is a willingness to play games with formal state law despite (and perhaps because of) the sense of its illegitimacy. Significantly, however, and in contrast to the other ‘low-grid’ legal consciousness (individualism), all three of these strands are integrated by reference to a sense of strong collective identity and collective agency. These derive from an understanding that the collective represents groups systemically disadvantaged in the larger social system in which they live.
The Illegitimacy of State Law
By viewing the legal consciousness of radical environmental activists through the lens of cultural theory, we can see more clearly that the conception of state law as an oppressive imposition is directly related to collective values. As Interviewee 23 showed, the passionately-felt norms were a primary source of a sense of agency for them:
[the activist community] always has been [insular] and possibly by virtue of the way people get involved in it … [E]nvironmental activism is … often quite sort of highly motivated, sort of passion, personal passion, and that's quite, you can't give people personal passion, they have to find it and discover it.
It is precisely to the extent that law is imposed by the state and sits in tension with the values of dissenting collectives, that it will be treated as illegitimate. So Interviewee 33 portrayed law as a game in which the state writes the rules for its own benefit. State law, then, was morally bankrupt in itself and this justified direct action to disrupt it:
If you play the game by the rules you're literally going to lose because that's the way that the game is set up. So you've got to find ways of not playing football but bursting the ball, you know? That's what it’s all about.
One manifestation of refusing to accord any default legitimacy to state law was the concept of ‘political crime’ whereby breaches of the criminal law were conceived of as legitimate. For example, Interviewee 14 recalled a difficult exchange with her mother subsequent to her arrest for direct action:
when I got arrested … my mum was like, ‘how are you ever gonna find work?’ And I was like, ‘Mother, do you think I'd ever wanna work for someone that would not employ me because of this criminal record?’ And I was ‘it's a fucking political criminal record! There's a reason for it!’
Interviewees 5 and 15 similarly discussed the practice of shoplifting as legitimate direct action:
people will shoplift and not have a moral problem with it at all and that’s something that you develop politically as well. It’s like, y’know, shoplifting was a terrible sin, y’know, that sort of thing. And then suddenly after a while you realize shoplifting off somebody like Asda is just … it feels much better to shoplift than … to actually buy something from there because they’re such a shitty company. So, y’know, you’d rather take from them than give money to them …
… my ethics these days include shoplifting from supermarkets as much as I can. But once again I am trying to deal with logic and I don’t see that as a bad thing, I see that as a form of action.
Such legal consciousness is grounded in a rejection of ‘high-grid’ cultural framings. The criticism of a failure to distinguish between legitimate and illegitimate law is, in essence, a criticism of the deference to the authority of formal state law that is implicit to deferential collectivism. Interviewee 15, for example, contrasted his own approach to legality with deferential collectivism in the following way:
it's very upsetting to realize that a lot of people out there don't even believe … that it is possible to want to live in a world that is compassionate, so much that you might actually want to do something about it, and who believe that if something is illegal it must therefore be wrong, and if something is legal it must therefore be right, and therefore we must uphold those laws and obey them.
In a more affectionate way, Interviewee 11 similarly contrasted her own approach to law with the deferential consciousness of her father:
My dad's very ‘well, if the authorities have decided it should be that way, then that is the right thing and you should try and change things through the legal channels.’ Bless him.
An Alternative Conception of Law Beyond the State
The basis of these distinctions between legitimate and illegitimate state law, or between ‘real’ crime and political crime is related to the second important strand, which is the sense of a morality beyond or external to state law. This morality provides an alternative kind of legality and justifies a disregard of the substantive content of state legal provisions. Within the legal consciousness of dissenting collectivism, state law does not derive moral authority from its source in formal state processes of law-making (whether in the form of legislation or case law). However, it will be deemed legitimate if, in substantive terms, it is morally sound. In a fascinating parallel with jurisprudential debates, this was expressed by some in terms of a ‘higher’ law—a ‘law above the law’ as Interviewee 33 put it:
I don't think I've got a right to be violent but … I'm not bothered about me breaking laws because they're just man as far as I'm concerned. And I do believe in this kind of - sounds dead worrying, iffy - but this kind of high moral kind of law type of thing. I do believe in that although I find it difficult to articulate it.
Interviewer : Which is what?
Well, I do believe that when those women [who] were smashing up the Hawk Jets, that they were responding to a law above the law that says don't bash other people's property.
Interviewer : And that law is what?
Justice, ethics, morality … I've got no religious belief [but] J believes in God as an ethical morality, shared between people. She thinks that you could call that God. And I can see what she means. And, ok, so you're responding to something like that, some kind of thing about saying, y'know, ‘I'm damaging this thing because there's a better reason to do it … .’
Similarly, Interviewee 4 spoke of upholding ‘the law’ by breaking state law:
as I was saying before, Greenham, we were taking the lawful action to us. Even if it didn't break the letter of the law, the threat of weapons broke the spirit of the law. It's also raising awareness for other people, and it's also almost making it clear where you stand on this, that you're also speaking in solidarity, standing in solidarity with all the people who are feeling oppressed. It's saying … what peace and security if you've got people dying of uranium poisoning? I wouldn't feel that I was breaking the law. I'd feel I was upholding the law … .
This finding has an important implication for legal consciousness research: it suggests that legal pluralism—or what Merry calls ‘new legal pluralism’ 65 —is a key element of society’s legal consciousness. Insofar as dissenting collectivism is distrustful and sceptical towards structured systems of authority and rejects the inherent authority of formal state law in the name of an alternative and deeper legal and moral foundation, it has more than one sense of ‘law’. 66 Appeals to a law emanating from a source other than the formal state have a long and powerful pedigree in the history of revolutions, sometimes expressed as recovering a form of earlier legal truth that has been covered over by history, as in the English Civil War, sometimes articulating new rights claims that run against the grain of history, as in the American and French revolutions. In other contexts, what is at stake might be more of a clash between co-existing legal systems as has commonly been the case in colonial and post-colonial settings. Indeed, it is striking to note that legal consciousness approaches have rarely been used in research outside of the setting of the industrialized North. 67
A Gaming Approach to State Law
The third strand of the legal consciousness of dissenting collectivism relates to gaming. There were clear instances in which activists took a gaming and instrumental approach to state law, identifying opportunities to play the game of law for disruptive purposes, or purposes which benefited the dissenting collective’s interests or upheld their values. Much like the notion of throwing an opponent with his own weight, some activists, such as Interviewee 3, used state law against state power.
Interviewer : Do you think we can use the existing laws as well to achieve goals …?
Can the Master’s tools be used to destroy the Master’s house? Yes … you use tools that you have. Those tools also shape you and limit you and self awareness of those consequences is not immunity from those consequences. But it is a start … We use the system, we live within the system. We have no choice. That doesn't mean we water down our critique of the system …
Interviewee 2 similarly described using rights of way as a ‘stunt’—playing a law game against the state:
Fresh Air Now did its fortnight of stunts and so on. One of them was at the airport. And it was the Green Party that organized that one and it was really only to do with this footpath that the airport had illegally closed off last time. It had extended its runway and it was, again, a sort of awareness-raising thing. We weren't really going to jump over the fence and insist on our right to walk this footpath that still existed in the official records of footpaths (interruption) … Well, it only went actually past the end of the runway and what we were saying to the airport at the time and to the police was ‘We're going ahead with this demonstration and we insist on our right to use that footpath. But just to be nice we will accept having just two of our representatives set foot on it under police escort, no more than five metres inside the perimeter fence. Just to be nice, and an absolute guarantee that we won't run off and do anything silly, but just to assert … the fact that this was a public right of way illegally closed … .’
This pragmatic acceptance of the capacity to work with existing law as a game—albeit a game that was played in order to enhance collective counter-hegemonic values—was something that clearly imbued the participants with a sense of agency. There was a touch of parody in terms of a particular orientation to legality, as activists gamed the law in specific ways at the same time as aiming to subvert respect for the legal system at a more general level. Quite often this gaming had a fairly clear purpose of creating political space in order to express more clearly or safely their alternate moral universe. But sometimes a greater sense of the inherent power—even value—of law would spill through, as in the elaborate strategy recounted by a 39-year-old engineer. Throughout his interview, he displayed a powerful sense of agency, energy, and optimism about the possibility of continuously finding ways to keep going in direct action. He describes here a means of effectively sequestering activists’ assets from confiscation by the state, a legal ‘trick’, in effect, that he refers to as ‘mental capacity-building’ and which he links to feelings of safety, support, and mutual connection:
[Y]ou can basically … sell off your goods. One of the things that [Ailsa] did was she auctioned her goods to raise money for the campaign. But basically what people sign is a piece of paper that says ‘well, whilst [Ailsa’s] still alive, even though I own this toaster whatever it is, I allow [Ailsa] to use the toaster …’ And she's got a little folder of all these bits of paper. So when the bailiffs arrive and say, ‘We're taking the telly and we're taking this’, you say, ‘It's not mine.’ And the bailiffs say ‘Oh Christ’ … And it's about, you know, learning the lessons and transferring lessons - which doesn't always happen … And this is why I call it mental capacity building, because it makes people feel safer, more supportive. But it's a great campaign technique and the press love it. So we just hold hands … . And it also means you're being sensible, you don't run the risk all your assets. But also it means that you don't have to go ‘Oh, we can't do that because …’ So, it's a case of like being positive saying, ‘We want to do this. How do we find a way of doing it?’ So it's like the kind of thing of the lawyers saying ‘Don't tell what we can't do, tell me how we can do it.’ So, it's mental capacity building.
The Vulnerability of Dissenting Collectivism
The significance of the game discussed above leads us back to the link to cultural theory that we have emphasized as an important context for interpreting the various strands we are untangling in this cultural bias. The very need for ‘mental capacity-building’ noted in the interview extract above signals a key challenge for dissenting collectives: maintaining their energy and focus in the long run. There is, we suggest, a kind of axis between the isolation/fatalism zone and the dissenting collectivism zone which exerts a strongly attractive force. This is something that is claimed by cultural theory. In cultural theory terms, this axis represents what Douglas terms the ‘negative diagonal’. 68 It is ‘negative’ because both zones represent a lack of power and a rejection of or by the mainstream. As Douglas puts it, the axis between the two is a ‘diagonal of withdrawal or protest’. 69 Douglas argued that egalitarian groups were at risk of being dysfunctional or collapsing. Indeed, arguably, Douglas framed her argument in much stronger terms—that dissident egalitarian groups will inevitably fail, at least in the long term:
Characteristically, the dissident group is weakly organized, leadership is lacking, and it cannot tolerate distinctions of rank. From the beginning, the dissident group has to choose its goals carefully: anything requiring long-term and specialized organization will be inherently impossible … 70
Her argument was that, by virtue of their egalitarian ethos, leaders of groups (‘prime movers’ is the preferred term according to one of our interviewees) must disclaim authority and be careful about what kinds of impositions to place on group members. Charisma, accordingly, tends to rule. But charisma has its limits and can fade. Dissenting groups have fewer structures and resources to keep group members within the groups—fewer delegated responsibilities, no incentives for advancement through a hierarchical structure. Loss of membership, then, is a main preoccupation. Schisms and collapse are constant threats.
Although there is much in Douglas’ argument, it would be a mistake, we suggest, to write off dissenting groups as being inevitably subject to organizational failure. 71 As Philip Selznick pointed out in his study of Bolshevism, techniques of insulation and absorption, the sense of struggle and an enemy, and the threat of ostracism from the group, can, together, contribute to a powerful and enduring form of organization. 72 The better view is that dissident collectives are vulnerable to failure. This raises an important empirical question: why do some groups fail or become less effective, and why do some group members shift along the ‘negative diagonal’ between dissenting collectivism and fatalism? A number of our interviews illustrate this potential trajectory from protest to fatalism (or an oscillation between them):
On a very personal level now, I suppose, a personal level of the whole story is that I'm very pessimistic. I am a bit kind of worn out. (Interview 33)
I think it is a cyclical thing, the level of energy that there is in the city, to get a big wave of protest. Like RTS is at a pretty low ebb at the moment but a couple of years ago it was happening all the time. With each wave it picks up new people and spins off old people at the end of it. There are lots of people who pass through for a year or two and then go on to other things and get a job … (Interview 40) 73
We are not claiming that this sense of burn-out is the only type of vulnerability that might be relevant to dissenting collectives. 74 It is, however, the strongest thread emerging from this particular dataset. Nor was the sense of burn-out inevitable or permanent. Oscillation between the zones of dissent and fatalism is, perhaps, more common. Indeed, the agency that is so visible in the narrative of dissenting collectives seems, for some at least, to remain only dormant in the zone of fatalism and so is revivable. As Interviewee 36 put it,
I think ultimately the only way that any of it could possibly be resolved is either by us making ourselves extinct or by people individually reconnecting with the energy that makes everything alive.
However, when trajectories from dissenting collectivism to fatalism do occur, they may be linked in interesting ways to the nexus between law, property, and capital. Many of the activists dropped out of direct action networks when they married, bought houses and had children. These commitments tied them into the existing system and raised the stakes of challenging that system. The legal trick to ward off the bailiffs described earlier was deployed to protect activists from being exposed to such stakes, but much of the time it seems that exit (albeit sometimes temporary) from direct action was a more likely path. The link between legality and property rights is one that activists were prepared to explicitly challenge in their direct action—but only so long as it did not stray into ‘personal lives’. As Interviewee 28 said:
We don't think that violence to property is violence at all, because property isn't sacred. But we keep from personal properties, it's got to be property of the state or you know, something unpersonal.
When the personal property is that of the activists themselves, the law’s ability to claw back money or assets for years after direct action is a significant facet of the sense of systemic paralysis that seems to induce resignation and burn-out in dissenting collectives.
Our decision to study radical activism was guided by a desire to explore, for theoretical reasons, an extreme case study. Radical activists, by their nature, represent an extreme position relative to the mainstream and so are as close as one will get to an ‘ideal type’ position. The distrust of state authorities, the rejection of the authority of state law, and the intensity of group dynamics and interests evidenced in the data above represent relatively extreme positions along the dimensions of legal consciousness. In other areas of society, we can expect to see evidence of the legal consciousness of dissenting collectivism in less stark terms. Yet, even within our interviewees, there were contradictory elements within their accounts of legality that evoke the ambiguity of their conceptions of legality. In keeping with the nature of these different narratives or stories as cultural schema, they do not, as noted earlier, each neatly map onto particular individuals or groups of individuals. Thus there are many traces in the interviews where the activists, in contrast to their general dissenting stance, evince a more deferential orientation to formal state law that acknowledges its legitimacy. Interviewee 33 who, above, portrayed law as a game in which the state writes its own rules, implicitly endorsed certain aspects of state law when discussing his gratitude towards a prison officer who upheld his criminal procedural rights when police officers wanted to extract a confession out of him when in prison:
I was so grateful to a prison officer that day because during my initial trial … I had been stitched up … I'd had three statements made up which I hadn't made, didn't sign them 'cause they weren't there and then told in court that I refused to sign them after making them, blah di blah. This was before Birmingham Six or the Guildford Four and before the PACE Act … So nothing was taped, just all written down, allegedly contemporaneous. Didn't happen. They came, they interviewed me three times. They came with pen and paper only on the first time 'cause I didn't answer a question. I said, ‘I'm sorry I don't want to answer that’, or ‘no comment’ that's the only thing I said … So I was then taken back - this is after being arrested after being on the run - taken back to Sheffield. And then the original coppers that stitched me up wanted to re-interview me there. And there was a prison guard outside the cell and I heard the conversation. I was in the cell and they were saying, ‘I've come to interview [Int 33].’ And he said ‘Well, you'll have to apply to Armly 'cause that's where he's going.’ ‘Well, we'll do it now’ he said. ‘Well, look, this is a four year man. He's convicted. He's a four year man. You'll have to go …’ And the copper said to the prison guard, said, ‘Look, whose fucking side are you on mate?’ He said, ‘Look, I'm just following the rules. This is a convicted prisoner. Four year man. All you got to do is apply to the prison and you can have an interview with him.’ Which they did of course. But what would have happened to me if he'd have let them in?
Many of the interviews similarly refer to ways in which formal state law has been important in protecting them from arrest, from police maltreatment, from eviction, or enabling access to conscientious objection protection. Not all accord quite so much respect to that law as Interviewee 33, viewing those moments, rather, as momentary wins in an overall pattern of loss and harm from law. But there is an implicit recognition of the normative value inhering in a formal legality that is—if only sometimes and then unpredictably—holding to account the exercise of public power by public officials. Interviewee 24, for example, told of how the procedures of cross-examination along with a crucial photograph of him with orange hair in a direct action setting allowed a lawyer to expose the police as lying about what they had seen. He emphasized the impact this had on his family in terms of undermining their assumptions about the legitimacy of state actors. State law uncoupled, even if momentarily, from the actions of individual public officials, acquired legitimacy for this interviewee. Equally, Interviewee 5 drew an explicit distinction between legitimate and illegitimate state law. In discussing problems of mugging in her housing estate, she contrasted ‘anti-social’ crime with political crime:
it really makes you feel a bit shitty having to go to the police, 'cause you don't like them, don't trust them, you know? They're probably looking for half the people in the estate for various bits and pieces. They don't draw a distinction between crime like that - mugging, anti-social crime, basically - and sort of breaking the law either for political or for other, y'know, other survival reasons.
There was also a more implicit acceptance of certain forms of state law as valid, even if not legitimate—or at least as not rendered illegitimate directly by virtue of the moral content of the dissenting collective’s political commitments. This was especially noticeable, for example, in relation to a widespread acceptance of contractual mortgage obligations as illustrated by fairly frequent references to the fact that activists typically move on from direct action once acquiring a house. Of course, the bailiff story recounted above indicates this was not shared by all, but it was relatively rare to find quite as explicit a challenge as this to the nexus between law and property outside of the immediate context of direct action.
This ambiguity of law and legal institutions as a site for both consolidating and challenging power was nicely captured in the account of a 41-year-old Welsh activist (Interviewee 28) who had spent much of her life involved in direct action promoting the Welsh language. Her group had some quite explicit and worked-out views on the importance of going to court and ‘taking responsibility’ for breaking the law. In part, this was because they viewed the court as a crucial place for articulating an alternative moral, political, and social imaginary. Yet they also recognized that in so doing, they were effectively doomed to ‘talk past’ legal officials. The quote below captures this paradoxical mix of feeling empowered by the provision of a space for ‘dialogue’ even while simultaneously recognizing the irrelevance of that dialogue:
With meetings with officials you don't think you have gone very far. But with direct action, I suppose it is more blatant in the court case because you present your views, then whoever is on the other side, if they do appear, that's where the dialogue for me is … It is the follow-up as well. You've got [to] prepare because you have got to say why you did it. I find very often when you do that it gets to the very basics of your beliefs. Because you are saying I was doing it because the system is wrong. And all the system is going after is ‘whose fingerprints are those?’ ‘Who held this door?’ It is all superficial. [Our activist group] has taken the view that when you go to the court you don't plead guilty or [innocent], you don't plead because all that system is irrelevant. Although we don't say that we are anti-laws or you have to recognise that the laws are there, it is all irrelevant to what you are fighting for.
Because of profoundly disparate underlying systemic commitments, activists in court must necessarily talk past their legal interlocutors, making the court a kind of pulpit for preaching a vision of an alternative world, even while it continues to carry out the work of resolving conflict in the world as it is presently.
The contradiction inherent in the idea of a court being simultaneously a public pulpit for communicating the vision and values of dissenting collectives, and yet a place where law is ‘irrelevant to what you are fighting for’, is something that can be teased out in productive ways by placing legal consciousness research in the broader context of cultural theory. More specifically, the axis between dissenting collectivism and fatalism which we have identified as especially important captures discourses other than those of law, and exploring the disjunctures between legal and non-legal consciousness in this setting could be very productive. Thus even though a fatalistic cultural worldview provides no aspirational images of law, fatalism about the law’s potential for securing social change can co-exist with a strong sense of agency about the capacity to achieve change ‘outside’ the law. Symbolizing this, the Transition Towns movement, 75 which seeks to engage communities from the bottom-up in transforming their ways of life in their own and societal interests at a neighbourhood or town scale, invited Ed Miliband, then Minister for Climate Change, to attend as Keynote Listener at their 2010 annual UK conference. This symbolized the movement’s position that the formal structures of law and politics need to be bracketed—perhaps temporarily—rather than rejected and resisted, as the interviewees in our secondary data for this article suggested.
Of course, a more wholesale rejection of and resistance to legality makes sense for dissenting collectives when law so often secures and upholds arrangements of property and persons that dissenting collectives explicitly reject. That ‘ownership’ in various forms that is at the core of this is quite eloquently illustrated by Interviewee 22, a 30-year-old male who comes across as burnt out and deeply frustrated by the lack of organization in the groups with whom he has been involved. In a rare moment of verbal energy, he noted:
my thinking … now is … trying to rebuild our image of ourselves as campaigners - away from being that kind of campaigner that works with a single-issue campaign that rises and falls, more we are politically minded people who live in Manchester who react to different geographical spaces within Manchester in a political way. And yet we have no ownership of that space. There's nothing for us. And when I say ‘ownership’ I don't mean it in a kind of property-owning capitalist Conservative way. I mean ownership as in that space belongs to people and not to the State or to the corporations or to whoever … using our way of relating to place and politics as a way of actually creating a physical lasting change in that space … [I’m] trying to come up with a plan that we can implement as activists which changes, that we view ourselves as activists away from this single-issue stuff more towards being who we are in the space and therefore having more ownership of that space … [And] instead of seeing ourselves as an animal rights activist, you see yourself as a student who has a back garden, that works in the city and lives in this neighbourhood. And therefore using our way of relating to place and politics as a way of actually creating a physical lasting change in that space … [This] kind of recognises the importance in … campaigns but turns it on its head, if you like. So it takes … the emphasis away from the campaign itself and puts it in place. And in so doing it changes people here's relationship to the city and makes them wanna stay here rather than just be a single-issue campaigner anywhere in the world.
The complexity of law’s entanglement with property entails significant difficulties in envisaging such a reconfiguration of ownership, particularly at a generalized level. It is not surprising that in that context, the activist interviews betray ambiguities and even incoherence in their orientation towards law—for such qualities inhere in legality itself. But this passionate quote reminds us that there is a holistic, positive vision of social change embedded in the apparent negativity of direct action, one that searches for a different relationship to law and power.
This article has interrogated legal consciousness through the lens of cultural theory. Cultural theory’s dimensions of sociality, when applied to the topic of legal consciousness, offer, we have suggested, a helpful framework for analysing and comparing variations in how society conceives of and understands legality. In consequence of this, we identified a ‘missing narrative’ in the landscape of legal consciousness narratives—one grounded in the cultural bias characteristic of dissenting collectivism. Through this theoretical route, then, we have arrived at the same lacuna within Ewick and Silbey’s seminal account 76 which Fritsvold 77 had suggested through empirical enquiry alone. However, cultural theory has enabled us to go beyond this contribution and to refine further our understanding of Ewick and Silbey’s influential scheme. Our analysis reveals that Ewick and Silbey’s narratives (‘before’, ‘with’, and ‘against’ the law) need a greater sense of context for their interpretation. Their three narratives risk being misinterpreted and misunderstood if taken out of context—contexts which cultural theory can provide. For example, Ewick and Silbey’s treatment of the ‘with the law’ narrative largely associates a gaming approach to state law with the pursuit of individual gain. Cultural theory demonstrates that a gaming approach to state law should be associated with a ‘low-grid’ sensibility and can therefore be manifested in both individualism and dissident collectivism. Equally, Ewick and Silbey’s treatment of the ‘before the law’ narrative largely associates the notion of a transcendent realm with a deferential orientation to state law. Cultural theory suggests that a ‘low-grid’ distrust of state law can go hand in hand with a faith in a higher transcendent law which trumps and critiques state law.
This advance, in turn, permits us to reflect critically on the core theoretical argument advanced by Ewick and Silbey on the basis of their scheme of three narratives. Ewick and Silbey’s core concern was to develop an empirically-grounded theory of legal hegemony. Silbey framed the challenge as follows:
The developing corpus of law and society research demonstrated that, despite aspirations to due process and equality before the law, the ‘haves’ regularly and systematically ‘come out ahead’ … [I]n documenting a gap between the law on the books and the law in action, and in specifying how social organization and legal procedures reproduced structured inequalities rather than equal treatment, law and society research produced a significant critique of the justice possible through law … How [can] we explain … unrelenting faith in and support for legal institutions in the face of … consistent distinctions between ideal and reality … abstract formal equality and substantive, concrete material inequality? 78
There are, we suggest, some challenges in thinking about legal hegemony in empirical terms at such a general level. Thorny empirical issues such as data sufficiency and representativeness are compounded by theoretical challenges such as the problem of comparison (what should we compare liberal law against?). 79 A thorough treatment of such problems and their potential resolution are beyond the scope of this article. However, we may nonetheless use our analysis here to critique Ewick and Silbey’s proposed solution to the puzzle of general legal hegemony. Ewick and Silbey suggested that law draws its institutional support and the consent of those it systematically disadvantages as a result of the interplay between two of their three narratives of legality: ‘before the law’ and ‘with the law’. The fact that these opposing narratives may be invoked in different settings and at different times, permits legality, they suggest, to maintain its position of domination and to retain the faith of its subordinates despite its failures and injustices.
The forms of consciousness we call ‘before the law’ and ‘with the law’ … [w]hile ostensibly expressing vastly different and contradictory images of legality, together … constitute a hegemonic conception of law. At any moment, the law is both a reified transcendent realm, and yet a game … Challenges to legality for being only a game, or a gimmick, can be repulsed by invoking legality’s transcendent reified character. Similarly, dismissals of law for being irrelevant to daily life can be answered by invoking its gamelike purposes. Through these forms of consciousness (and the opposition between them), legality can be an uncontested and unrecognized power that sustains everyday life. 80
Our analysis complicates this explanation, however. Our study of the radical environmental activists demonstrated that the gaming potential of state law and a sense of a higher transcendent law above state law combined powerfully in a legal consciousness of dissenting collectivism. For these activists, far from promoting legality as an uncontested and unrecognized power, this combination fuelled their critique of state law and sustained their counter-hegemonic struggles.
In this questioning of Ewick and Silbey’s theory of general legal hegemony, we can see the seeds of a more fruitful set of questions for legal consciousness research. Our analysis points to the existence of a legal consciousness of dissenting collectivism where state law is critiqued as being oppressive to groups and, more significantly, is struggled against—not as an accommodation of power, but in a group-based attempt to alter the structures of power in society. But the key point here is that it is a struggle . And the struggle, as our data demonstrate, can be frustrating, short-lived and ultimately unsuccessful. We think that in this finding lies an especially promising direction for the future of legal consciousness research. Why, when individuals and groups actually recognize the role of law in disadvantaging them or causing them injustice—as many radical activists clearly do—do they sometimes challenge that particular status quo but sometimes not? The movement between dissenting collectivism and fatalism is central to the answer to this question. Moreover, exploring that movement offers, we suggest, a positive response to Susan Silbey’s suggestion, discussed at the outset of this article, that it is perhaps time to move on from the notion of legal consciousness. 81 That critique was centred on the tendency for current legal consciousness research to ‘lose the social’. 82 Exploring the high-group, low-grid zone of dissenting collectivism opens up a place where collective identity is particularly significant, yet state law to varying degrees is rejected. Such a place is a particularly fertile site for accessing ‘the social’. Further, the ambiguous potential of law along the fatalism-dissenting collectivism axis maintains our ability to expose the structural and systemic constraints and opportunities inherent in legality.
So, rather than examining legal consciousness in relation to a theory of general legal hegemony, our suggestion is that we should explore legal consciousness in light of what we might term local legal hegemonic puzzles. A theory of local legal hegemony connects with the fact that legal consciousness is not simply about what people think about law, but also about what they do . This is something Ewick and Silbey themselves have always stressed, 83 but has arguably been neglected in much recent legal consciousness scholarship, especially in the UK. One strand of scholarship in the USA on law and social change, for example the work of Michael McCann 84 and of Anna-Maria Marshall, 85 has explored very closely related issues, albeit embedded more in a literature on law and social movements than in legal consciousness. Looking at social movements that use litigation and rights-based discourses to challenge and remedy social injustice, from unequal pay to sexual harassment, the object of scholarly study here is clearly related to dissenting collectives and does highlight an active collective sense of agency in relation to law similar to that which we have identified in our data analysis. However, while legal consciousness literature and methods are integrated into these studies, their ultimate orientation is rather different from what we propose. These studies tend to focus on situations where law is an explicit focus, tool and hope of the reformers; in contrast, the interviewees we explored rejected law and only indirectly, sometimes even inconsistently, articulated any sense of law as a legitimate facet of the social order. With the USA an unusually ardent supporter of ‘legal adversarialism’ 86 as a standard repertoire of social action, and with the comparatively reduced constitutional role of the court in the UK, 87 it is perhaps not surprising that such ‘law and social change’ studies have been very rare in a UK context. Equally, those that are being conducted (mainly in the context of the EU but also in an emerging legal geography literature) seem not to have influenced UK-based legal consciousness scholarship. Moreover, the law and social change scholarship is often much more interested in the effectiveness of dissenting collectives or in their constructions of collective identity, and much less inclined to explore burn-out and trajectories to fatalism, or even the potential counter to burn-out: institutional solidification of their challenge to the mainstream.
In asking why people shift from a legal consciousness which is imbued with a sense of counter-hegemonic agency to a sense of fatalism, and vice versa, such studies would be sensitive to the multiplicity and plurality of legal consciousness narratives that animate any particular local setting, asking when and why resistance to state law can become more than symbolic accommodations of law’s power. This means more than just looking for narratives of ‘under the law’ as Fritsvold 88 puts it: it entails an appreciation of the role all four cultural bias stories play in the drama of legal consciousness. And in this drama, legality can simultaneously play various and conflicting roles. Future research must attend to the complex relationship between legal consciousness in relation to property and capital and environmental legal consciousness. This is a relationship which is sometimes conflictual and contradictory, but whose contradictions open up spaces to research orientations to formal state law and power that still enact the ethical commitments of dissenting collectives but are more positive than negative. Research must also be open to senses of ‘legality’ beyond formal state law and thus explicitly embrace legal pluralism.
Our proposed research agenda would build constructively on existing work that explores how images of higher law can inspire counter-hegemony, 89 and the significance of group solidarity or networks for counter-hegemonic struggles. 90 Viewed through the lens of cultural theory, legal consciousness research has more potential than is presently being pursued to explore collective senses of agency in response to disadvantage that is sustained or ignored by law. Placing these enquiries in concrete contexts of the history and trajectory of particular local settings will re-energize the original spirit of legal consciousness research, enabling scholars to explore the ways in which cultural narratives about legality constrain and/or enable social action. All of this is essential for our understanding of the role of law in society and in everyday lives.
In the writing of this lecture and article, we benefited a great deal from feedback from and discussions with a number of friends and colleagues. Thanks are due to TT Arvind, John Clarke, Dave Cowan, Sharon Cowan, Eve Darian-Smith, Gary Edmond, Ben Golder, Jeff King, Martin Krygier, Marina Kurkchiyan, Morag McDermont, and Maurice Sunkin. We also gained from its discussion at York Law School’s ‘Brown Bag’ seminar series and thanks are due to colleagues who took part.