A Critical Introduction To Law, Third Edition.

Vol. 14 No.12 (December 2004), pp.956-960

A CRITICAL INTRODUCTION TO LAW, THIRD EDITION, by Wade Mansell, Belinda Meteyard and Alan Thomson. London: Cavendish Publishing, 2004. 224pp. Paper £18.95 / $38.00. ISBN: 1-85941-892-9.

Reviewed by Trish Oberweis, Department of Sociology and Criminal Justice Studies, Southern Illinois University, Edwardsville. Email: toberwe@siue.edu .

In the “Acknowledgements” to their Third Edition, Wade Mansell, Belinda Meteyard and Alan Thomson write, “A review of the first edition stated, ‘A CRITICAL INTRODUCTION TO LAW will particularly appeal to the iconoclastic tendencies of many young people.’ We hope it still does” (p.ix). This reviewer agrees with the first and reiterates the appeal that this book will have to the younger readers who seek alternative perspectives to studying law. Although I did not have the good fortune of reading earlier editions of the text, and so cannot compare the third edition to earlier ones, I can say that the authors do a thoroughly engaging job of contextualizing Western practices of law and inviting an intellectually challenging discussion of legal practices in the particular but arbitrary Western way.

The book is not for a typical undergraduate audience. It is intended for the not-yet-indoctrinated beginning law student, and for that audience the book is particularly well-suited. The reader needs little or no academic experience with law; a simple cultural understanding is all that is necessary. Although the early law student would be an appropriate audience, I suspect the book will be selected more often for Law and Society, Socio-Legal, Sociology of Law, and similar graduate seminars. These will also provide excellent audiences for the book.

The authors’ intention with this book is to reveal the political element of law and to present the implications accompanying the recognition that law is neither culture-free nor politically neutral. The authors reveal that law, rather than existing as a neutral set of rules to create justice, “is, in reality artificial, historically and culturally contingent, and the embodiment of only a particular version of right, namely that of formal equality before the law” (p.161). This is accomplished in the first three chapters, where the authors use a variety of existing anthropological studies to assess the cultural component of law. A variety of different cultures’ dispute resolution frameworks are contrasted and compared (without explicit value judgment) to Western notions of court arbitration and legal proceedings. Each example drives home the crucial point: law is not separate from society. Rather, law only becomes meaningful within the parameters of a particular socio-cultural context.

In the first three chapters, the authors rely heavily on Berger’s and Luckmann’s classic work, THE SOCIAL CONSTRUCTION OF REALITY, and then provide a variety of examples from anthropological research to show how law and dispute resolution varies across time and space. What becomes clear is that there are culturally relevant principles that drive the [*957] organization of dispute resolution and therefore direct the construction of a system of rules/law, whether formal or informal. In Western societies, the organizing principle is the primacy of individuality. The emphasis on the individual in turn directs a particular construction—the Rule of Law—which mandates a formal system of rules that treats every individual the same way. Another culture may emphasize, for example, the collective good and so organize a dispute resolution system taking into account that collective good (e.g., emphasizes an outcome that involves repaired relationships among the parties), rather than the rights of individual parties to the dispute.

The consideration of non-Western cultures’ systems of dispute resolution initially avoids explicit value judgment. Given the authors’ stated intention to debunk the myth that law is apolitical, it would be a bit hypocritical for them to offer an allegedly neutral discussion of other legal systems. While the presentation of a variety of cultures is done without value comparisons, the authors do not disappoint, and eventually reveal their preferences for the primacy of collective or social good over the protection of individual rights.

One result of this preference to prioritize collective good over individual rights is a discussion of the Western construction of private property. The next two chapters (4-5) discuss how particular disputes are “translated” into a language of law, and how resolutions are delivered in that same language, often addressing some technical aspect of the translation rather than the heart of the conflict. Thus, instead of resolving the difference in viewpoint that created a legal dispute, it is often some legal technicality that determines the resolution. Property disputes serve as a good example, and these are compared again in anthropological context, with a variety of different cultures being offered in the mix. While in “Rule of Law” societies, all property owners are protected the same way by the same rules, law gives greater protection to property owners than to those without property, regardless of the common good. The authors thus understand Law to serve class interests, and they present a sustained neo-Marxist critique of the Rule of Law, beginning with the politics of the marriage contract.

Our cultural story of marriage is that it has historically been a mechanism for the protection of women and children. The authors argue instead that marriage incorporates men into a family structure. Although the mother of a child is readily known, this is not true in every case for the father. Marriage creates a legal kinship for men that may not otherwise exist. But the authors go on to trace the complexity of the legal arrangement from informal days of a simple promise to the days of a formal legal contract. This evolution, they argue, is linked to economic shifts and the commodification of labor. The labor of men and women is not alienable (that is, for sale) in the same way. Through law, women’s labor is controlled and regulated in ways that men’s labor is not. Aside from obvious examples, such as women’s historical inability to engage in contracts or accumulate capital, at least not after marriage, the authors use a framework of capital to discuss the regulation of women in certain fields, such as mining, which could endanger the next generation of labor. Capital [*958] relationships also figure into an examination of abortion regulation. They write, “In capitalist society, it [abortion law] depends on the demands for labor and the controllers of capital” (p.108), where greater demand equates to less control for women.

Ultimately, the subordination of women is related to the Rule of Law. In the previous century, where women’s labor (and capital, for that matter) were appropriated and became merely an extension of her husband’s labor, women “were also excluded from full participation in the market and this, in our view, explains their exclusion from the ideology of the Rule of Law” (p.103). The law need not extend equally to women because common sense told citizens that men and women were different and not entitled to the same sorts of protections under the law. Thus, such clear differential treatment of men and women did not compromise the Rule of Law, because women were never understood as subjects of law or the free market.

In more recent times, when the ideology of equal treatment has been extended to women but equality in any substantive material sense remains elusive, the authors suggest that the Rule of Law does little more than to treat unequal people equally. They write, “Arguably, the only way to achieve substantive equality would be to treat unequal people unequally, that is to say, to discriminate positively in favour of the less advantaged, or to find ways of reducing disadvantages. But, that is not the method of the Rule of Law” (p.95).

Thus, women’s historical exclusion from the Rule of Law appended them to their husbands, who were the recognizable subjects of law, while more current legal recognition of women allows, and even exacerbates, their substantive inequality to men. Rather than a vehicle for fairness and sameness, the Rule of Law in either case can be seen as one ideological tool for the continued gendered imbalance. Even as contemporary ideology leads us to view the Rule of Law as a key to fairness, the practical evidence of unfairness is right in front of us—in the form of working women’s double burden of job and home/childcare, continued pay disparity, the plight of part time workers, who are quite often female, and the channeling of men and women into separate and unequally rewarded career choices. An alternate legal organization might weed out those substantive inequalities rather than turn a blind eye and act as if all individuals are indeed equal.

From gender inequity, the authors turn to globalization. Their arguments are complex but extend from a similar logic to their discussion of gender. When Third World nations are recognized as legal entities, it is often because they have become borrowers of First World wealth. While such loans are made without much regard either to a nation’s ability to repay loans or to the likelihood that the loan will be misappropriated before reaching the citizens on whose behalf it was requested, that debtor nation’s citizenry will ultimately be held accountable. Thus, if a corrupt leader obtains a loan, the citizens are responsible for its repayment, even if the leader is subsequently deposed and even if the borrowed money never reached its intended purpose. [*959]

Such loans often come with strings attached; namely, the borrowing nation must avow democracy or at least the free market. Once a nation espousing free market principles gets into trouble with repayment, pressure can be placed on that nation to cut its domestic welfare benefits and increase exports to repay the loan. Increasing exports simply serves to reduce the price of exported goods, rendering more production from the indebted nation but less revenue to spend on improving domestic conditions. Thus, wealthy nations enhance their wealth while simultaneously making the poorest nations even poorer. Interestingly, the authors point out that free market principles can outweigh democracy in this equation. Even when the people themselves might vote to maintain or increase welfare spending, where creditor nations apply this pressure, the voters’ desires matter little in contrast to the pressure of the market to export to repay loans.

The authors offer a variety of interesting examples from Haiti, Nicaragua, and Iraq, to demonstrate the dynamic. The Rule of Law is again the ideological vehicle that enables disparate capital accumulation. Rather than being an instrument of fairness, the Rule of Law applies equally to those nations able to repay loans and those that never had a realistic chance (such as those with corrupt leadership, those lacking a realistic plan for payback, and even those who never received the money in the first place). Instead of examining the conditions under which such loans were given, the Rule of Law simply fixes upon the question of whether and how repayment can be made, and by isolating this aspect of a much larger problem, becomes an instrument for the subordination of one nation and its people to another. The Rule of Law is again revealed as a mechanism for empowering the “haves” over the “have nots.” By emphasizing the individual rights of the lending nation over the collective good of the borrowing nation (or even the world as a whole), the Rule of Law exacerbates the problem of wealth disparities.

The implication of the work is a call to examine the ideological assumptions that we take for granted in our legal system. Throughout, the authors make an argument about law. They discuss how the law translates a dispute so that the matter itself is not resolved, but instead, some technical legal issue is settled through the adjudicatory process. One thing that is largely absent, although it is a central implicit theme, is an explicit discussion of the divorce of law from justice. While the authors spend a brief few pages at the end of the text talking about “social justice,” they do little to define and detail the notion of “justice” despite such a thorough effort with other concepts. What is relevant to their discussion is the emphasis that the Rule of Law places on the primacy of individual rights—at the expense of justice. The whole book is about the replacement of justice with rule adherence, yet the concept of justice itself gets little explicit treatment anywhere in the text.

The authors acknowledge a problem of over-simplifying for the purpose of discussion, and this is indeed a weakness of the text in some places, though not a weakness that undermines the worthiness of the book. The authors argue that Rule of Law ideology leads to [*960] something like a false consciousness, although they do not use that term. They suggest that a dichotomy exists between ideology and reality and that some ways of knowing are more true (that is to say closer to Truth) than other ways of knowing. This is, of course, in conflict with a postmodern or poststructuralist worldview, which finds all perspectives equally truthful. They acknowledge postmodern/poststructural thinking, but reject those theoretical strands for their pluralism. This certainly oversimplifies a body of theoretical work that is quite often not impervious to questions of justice and rather tentative in settling upon a definitive meaning justice applicable to all places and at all times. Indeed, invoking a framework of social construction to demonstrate that law is contextually located only to dismiss one extension of that logic is somewhat disappointing.

What is somewhat more troubling is the authors’ dichotomization of potential actions, by oversimplifying postmodern/poststructuralist thought, particularly vis a vis Marxism. They extend their discussion of Berger’s and Luckmann’s social constructionism in the final chapter and at last articulate the problem of power and knowledge, using Foucault’s (1980) work. They write, “Most influentially, the French scholar Michel Foucault has argued, beyond social constructionism, that since knowledges constitute reality, if all forms of knowledge are also forms of power, then reality is always and everywhere an effect of power” (p.168). They grant that this perspective is “worrying,” given that one underpinning for their argument is “the belief that one can identify a form of knowledge which is not also a form of power” (p.168). Although the authors are explicit about this dilemma, they resolve it in a fashion that I ultimately found problematic, arguing that either one must believe in some knowledge that is outside of power, and therefore free of ideology (at least relatively), or else one can not help but espouse market dynamics—even market dynamics of knowledge. I find this dichotomy problematic and overly simple. However, although the authors and I may disagree over the value of postmodern versus Marxist thought, the critique of Rule of Law ideology is quite a valuable undertaking. The book would surely be thought provoking to nearly any social science scholar of law and would make a potentially eye-opening early text for law students. The ideas set forth are sure to generate discussion, whether among the iconoclastic youthful audience or their more established yet still critical counterparts.

REFERENCES:

Berger, Peter L., and Thomas Luckmann. 1980. THE SOCIAL CONSTRUCTION OF REALITY: A TREATISE IN THE SOCIOLOGY OF KNOWLEDGE. New York: Irvington Publishers.

Foucault, Michel. 1980. POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS, 1972-1977. New York: Pantheon.

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