Vol. 1, No. 1 (March 1991) pp. 16-19

RULES VERSUS RELATIONSHIPS: THE ETHNOGRAPHY OF LEGAL DISCOURSE by John Conley and William O'Barr. Chicago: University of Chicago Press, 1990.

Reviewed by Austin Sarat, Amherst College

Having one's "day in court" is a recurring and powerful cultural trope--the titanic struggle in the adversarial arena, the ultimate confrontation of good and evil, the moment when Law speaks and Justice is done. For some, it means the chance to prove a point, to win an argument, and to obtain vindication; for others it is a chance to be heard, to tell one's side of the story, and to have one's voice count. In his classic article "The Forms and Limits of Adjudication," Lon Fuller (1978:45) claims that the kind of participation afforded by having one's day in court is central in giving adjudication its meaning. As he puts it, "...the distinguishing characteristic of adjudication lies in the fact that it confers on the affected party a peculiar form of participation in the decision, that of presenting proof and reasoned arguments for a decision in his favor. Whatever heightens the significance of this participation lifts adjudication toward its optimum expression. Whatever destroys the meaning of that participation destroys the integrity of adjudication itself."

If Fuller is right, the integrity of adjudication is in jeopardy every day, in every courtroom in the country. For most people a day in court is hardly a magisterial moment, an epiphany, or a climatic encounter with Justice itself. Anyone who has ever been in court--as litigant, juror or social science observer-- surely knows that a day in court means endless waiting, bargaining, trading and compromising in what are all-too-often dingy, noisy corridors and hallways, or listening while lawyers talk to each other and argue obscure points of law in whispered conferences with the judge. It is thus often a frustrating and difficult experience no matter what the result, an experience of passivity and baffling incomprehension, an experience of being silent rather than speaking, of being unnoticed rather than heard. Yet if ever there was to be a place where having one's day in court might fulfill our most grandiose cultural expectations, small claims court would likely be the place. Here there are no lawyers. Litigants speak for themselves, and they speak directly to the judge; here legalistic formality is displaced, and equity reigns. Here law vividly confronts daily annoyances and the issues that turn those annoyances into matters of principle. Thus research on small claim's courts may be particularly useful in fleshing out the cultural meaning and significance of having one's day in court.

Conley and O'Barr's, RULES VERSUS RELATIONSHIPS: THE ETHNOGRAPHY OF LEGAL DISCOURSE, does just that. It provides a vivid and lively picture of the discourses used, and roles played, by small claims litigants and judges. It is an insightful ethnography of the courtroom as a social stage, and a useful interpretive account of the way people participate on that stage.

Page 17 follows

In their Introduction, Conley and O' Barr describe their work as a study of "...the ways in which ordinary people relate to the American legal system,...how lay people identify and analyze legal problems , how they decide when and in what form to bring a problem to the legal system, and how they respond to the demands that the system makes of them." (p. ix) These questions, Conley and O'Barr claim, have been all-too-often neglected in both traditional legal scholarship and sociolegal research. That scholarship and research pays too much attention to the experiences of some participants-- lawyers and judges--in the legal process while ignoring others-- litigants; it confines itself to the largely written discourse which lawyers and judges produce and ignores "the verbal exchanges that constitute the practical, everyday discourse of the law." (p. 2) RULES VERSUS RELATIONSHIPS seeks to confront the moment when folk culture meets legal culture, to privilege speech over writing, and to give voice to those whose voices have been absent in most scholarship about law. This is then a project of correction, of righting-the-balance, of filling a gap.

Yet rhetorically and performatively there is more to Conley and O'Barr's ambition than just a desire to make an incremental contribution to the progress of normal science. Thus they frame their work as an heroic struggle to unearth, record and listen to "largely unheard voices" of lay people and legal professionals in "the everyday world of the law...." (p. 3) Their repeated references to the everyday suggest that RULES VERSUS RELATIONSHIPS is a work which notices speech and action that is ubiquitous and ordinary, and is largely unnoticed precisely because it is both ubiquitous and ordinary.

To take up for a moment Conley and O'Barr's own rhetorical claim and to direct it to their own work, I think that there are three voices to be found in the pages of RULES VERSUS RELATIONSHIPS two of which are acknowledged and embraced; the other, though quieter and unacknowledged, is nonetheless powerfully present. These voices co-exist uneasily in this book. Their uneasy co- existence occasionally ruptures the flow of the arguments and leaves the reader a bit uneasy trying to figure out who Conley and O'Barr are addressing and what provides the central impetus to their work. Yet their co-existence is itself instructive about the state of contemporary sociolegal scholarship.

In their acknowledged voices, Conley and O'Barr present their work as an ethnographic expose, a work of revelation, a positivist project of discovery in which they first reveal the biases of previous scholarship, and then courageously give voice to the voiceless by making audible what has been previously been silenced. Alternatively, Conley and O'Barr speak policy talk; they imagine a policy audience and address themselves to it. They want to improve the performance and operation of small claims courts, and they claim the authority of science to make a contribution to policy debate. In their scientific and policy voices, their own compositional energy, their own editorial choices and their own narrative strategies are themselves silenced and displaced.

Page 18 follows

There is, though, another, less acknowledged voice in this book. This is a voice filled with moral passion and energy, a voice which speaks of more than simply of filling another gap in a scholarly literature. This voice calls law itself to account for being all too often unresponsive to the pains and struggles of those who call for its help or who seek to defend themselves against the claims of the socially powerful. RULES VERSUS RELATIONSHIPS is surely a first class scientific project, yet Conley and O'Barr's passion for fairness is palpably present on almost every page. Theirs is a project well within the tradition of legal anthropology, but their struggle to make that tradition more open, more humane and more politically engaged enlivens their writing and their arguments.

At the center of RULES VERSUS RELATIONSHIPS is a description of two different discursive styles which animate the proceedings of small claims courts and small claims litigation. The first is a privileged style, a style embraced by 'repeat players' who use the courts for debt collection. Such "rule oriented litigants interpret disputes in terms of rules and principles that apply irrespective of social status. They see law as a system of precise rules for assessing responsibility, and reject as irrelevant everything not circumscribed within these rules." (pps. 58-59) A second discursive style focuses on and emphasizes relationships. This so called "relational" style is most often used by minority group litigants as well as women and the poor. It emphasizes the importance of the social networks in which disputes occur, describes particular incidents as part of ongoing transactions, and urges law to be responsive to human need rather than precisely drawn legal obligations.

Conley and O'Barr demonstrate that despite the informality of small claims courts, judges are still more responsive to rule rather than relational styles. Here, however, they also carefully document variations in the dispositions and roles of those judges. They suggest that small claims judges can, through their questioning and sympathetic interaction, identify the legally relevant information in relational accounts, and, in so doing, counteract the privilege of rule oriented litigants. They critique, though mostly by indirection, those judges who support and encourage that privilege by their own passivity, or those who insist that the judicial role is limited and limiting.

For those interested in what it means to have one's day in court, Conley and O'Barr note that it is the opportunity to tell one's story that, for most litigants, is the most important part of their experience in small claims court. Yet here Conley and O'Barr position themselves as policy advisors to judges and court administrators rather than as social critics; here their admirable moral passion is displaced by a narrow policy concern.

Going to court is in this culture, despite its frustrations and distressing realities, a ritual of high drama and carefully stage managed performance; going to court is a rare opportunity, carved out of the noise of

Page 19 follows

social relations and the rush of daily life, for a narration, a telling, a recreation of pain, grievance and trouble. Here litigants can play a visible and active role in the construction of 'official' accounts, and, in so doing, experience the validation and vindication of rhetoric and gesture played out in the privileged space of law. Where that telling is truncated, Conley and O'Barr note, litigants end-up frustrated and angry; where a sympathetic hearing is afforded, litigant satisfaction is increased. Why litigant satisfaction is the focus of their analysis, or whether it should be, is, however, never explained. Nevertheless, the vocabulary of satisfaction lends itself quite easily to policy advice presented in terms of efficiency and cost-benefit calculations; "By paying attention to what litigants say rather than acting on assumptions about their objectives and concerns, the law may discover opportunities to bring about material increases in litigant satisfaction in exchange for minimal commitments of time and resources." (p. 131)

In the end, RULES VERSUS RELATIONSHIPS is a useful and interesting book not just for what it tells us about the cultural meaning of having one's day in court, but for what it displays of the uncertainties and polyvocality of contemporary sociolegal research. Understanding the co-existence of voices and discourses in social science is no less important than understanding similar plurality in legal settings. Just as the intelligent policy advisor seeks to strengthen law by making room for less privileged voices, so might a loyal participant in the sociolegal enterprise urge receptivity to the voice of moral passion and concern for the underprivileged as well as to the voices of science and policy.

REFERENCES

Lon Fuller, "The Forms and Limits of Adjudication," American Courts Systems, Sheldon Goldman and Austin Sarat (editors), San Francisco: W. H. Freeman, 1978.

Copyright 1991