Vol. 5 No. 3 (March, 1995) pp. 116-121
LAW IN EVERYDAY LIFE by Austin Sarat and Thomas R. Kearns
(Editors). Ann Arbor: University of Michigan Press, 1993. 285 pp.
Cloth $39.50
Reviewed by Stephen Daniels, American Bar Foundation, Chicago, IL
LAW IN EVERYDAY LIFE is the third volume in the Amherst Series in
Law, Jurisprudence, and Social Thought. In the words of the
series' editors, the first two volumes "surveyed the majesty
and monstrosity of law and speculated about its future and its
fate." (1). This collection of essays focuses on something
more mundane, everyday life. The reason for this focus, however,
is anything but mundane. Editors Sarat and Kearns have an
ambitious and daring purpose in mind -- challenging what they see
as the prevailing view of the nature of law and arguing for a new
kind of empirical legal scholarship with everyday life at its
theoretical core. At its heart, theirs is an epistemological
challenge to much of contemporary social science theory and
research.
The book is a collection of seven rather different essays that
may make some readers grumble and others cheer depending on the
reader's political perspective and methodological proclivities.
Regardless, each piece should be read on at least two levels:
first, in terms of what they say about the connection between the
everyday and law; and second, in terms of their styles of or
approaches to inquiry. So read, these essays will take the reader
to the very edge of contemporary thinking on legal scholarship,
challenging him or her to think critically about matters usually
taken for granted -- the nature of law itself and what
constitutes an appropriate mode of inquiry in legal studies.
The theoretical tone is set by the first, and most important,
essay in the collection, written by Sarat and Kearns:
"Beyond the Great Divide: Forms of Legal Scholarship and
Everyday Life." It is a critique of the predominant view of
the nature of law found in empirical legal studies and the two
opposing approaches to studying legal phenomena -- the great
divide. The predominant view of law they call the "law-first
perspective." Grounded in legal positivism, it presumes
there is an entity out there called law which is a product of the
state and operates ON society. Underlying it "is the
unargued postulate that law's story can be told in terms of the
effects of legal doctrine or practices on a relatively stable,
placid, nonlegal 'other.'" (56).
The two opposing approaches to studying legal phenomena Sarat and
Kearns call instrumentalism and "constitutivism." Both
share the law-first perspective, but here the agreement
apparently ends for each sees law working in very different ways
on society. Accordingly, instrumentalism and constitutivism offer
different logics for studying legal phenomena. Instrumentalism
"posits a relatively sharp distinction between legal
standards, on the one hand, and nonlegal human activities, on the
other. It then explores the effects of the former on the
later." (21-22).
In contrast, constitutivism says "social life is run through
with law, so much so that the relevant category for the scholar
is not the external one of causality...but the internal one of
meaning." (22) From this view, law shapes society from the
inside out -- providing the
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categories making social life seem natural, normal, cohesive, and
coherent (22). Law is ubiquitous, it has "colonized our
souls." (29) The question for legal scholarship, then, is
how law influences meaning. In finding an answer constitutivism
starts with "a law, a body of laws, or a set of legal
practices [and the] material itself is subjected to a kind of
'deep reading,' to adduce the underlying structures and meanings
these materials contain or imply for the persons whose lives they
govern." (41)
Sarat and Kearns argue that only by bridging the great divide
between these two approaches will we be able to capture the
richness and complexity of the interactions of the legal and the
everyday world in which people live and act -- and where they
actually experience the legal. Successfully bridging the divide
requires the abandonment of the law-first perspective. Instead,
we should think of law "as continuously shaped and reshaped
by the ways it is used, even as law's constitutive power
constrains patterns of usage. Law in everyday life is, in this
sense, both constitutive and instrumental." (55) So viewed,
the nature of law is contingent because it operates on and is
experienced in settings that are not inert and that vary.
Everyday life is a lively, normatively resourceful arena; and
while it is powerfully shaped by law, the law itself deeply
depends on the normative resources of this arena.
This alternative view of the nature of law requires its own
approach to the study of legal phenomena, one that Sarat and
Kearns characterize as being paradoxical. They argue that
"scholarship on law in everyday life should abandon the
law-first perspective and should proceed, paradoxically, with its
eye not on law, but on events or practices that seem on the face
of things, removed from the law, or at least not dominated by law
from the outset." (55). Here is their larger purpose,
"to evoke a new kind of legal scholarship, one that might
finally abandon the limiting (and we think, distorting)
perspectives of both the instrumental and constitutive
views." (57, fn.129). It would be empirical in character,
"if by this one means [being] grounded in extensive
observations, rigorously assembled -- and imaginatively 'read,'
of course." (57) In short, it will be more qualitative than
quantitative, involving the detailed observation of the practice
of everyday life and law WITHIN it. Sarat and Kearns argue for
"thickly described" accounts of everyday life --
studies that are intensive rather than extensive. Contrary to
most mainline social science, generalization is not the goal;
rather studies "must describe the world of the quotidian in
its singularity rather than assimilating it to general
categories." (60)
Two of the remaining six essays fit comfortably within Sarat and
Kearns' vision of a new legal scholarship and show its promise
and utility: Hendrik Hartog's "Abigail Bailey's Coverture:
Law in a Married Woman's Consciousness" and David Engel's
"Law in the Domains of Everyday Life: The Construction of
Community and Difference." Hartog's essay takes the idea of
the everyday to its most fundamental level -- a single person. It
is a stunning and elegant analysis of the memoirs of Abigail
Bailey, who lived during the eighteenth century in New Hampshire.
The bulk of the memoirs details Abigail's struggle to separate
herself from a violent husband after she learned that he had
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sexually abused one of their daughters. Hartog is interested in
the role legal structures played in the life and identity of a
married woman living at this time. He uses the memoirs to see,
first, how Abigail, a deeply religious and conservative woman,
broke the habit of wifely submission and freed herself from her
husband; and, second, what law had to do with this process. (66)
Abigail's memoirs show that the law was not the central normative
structure in her life; religion was -- eighteenth century
evangelical Christianity. While the nature of her consciousness
was not determined by law, Hartog shows that she relied heavily
on the law because it provided tools she could use in her
struggle. In freeing herself from her husband Abigail bargained
in the shadow of law, a law that "was a complex and
contradictory structure: experienced as an external control and
constraint, reconstructed in conversations and arguments,
intertwined in significant tension with religious beliefs and
norms." (107) While always present, Hartog concludes that
law was "not the most important determinant of her moral
situation." (107)
Engel's topic is quite different and more contemporary -- the
interactions of children with disabilities and their families on
the one hand and the public school system on the other, and the
role law may play in those interactions. The essay draws from a
larger study of children with physical disabilities involving
"(a)pproximately 140 interviews with parents -- and in many
cases with the children themselves -- [that] took place over a
fifteen-month period in urban, suburban, and rural settings in
western New York." (139, fn,34) Its importance for this
volume, however, lies in Engel's discussion of a framework for
actually doing the kind of research Sarat and Kearns envision.
How do we locate the everyday? Engel offers the concept of the
domain, which draws from the often used idea of the
semi-autonomous social field -- a social locale with the capacity
to generate its own rules and induce compliance. (127) A domain
is an arena in which people's day-to-day interactions surrounding
common issues take place. These interactions "necessitate
the formulation of a common language of ideas about the
individual and the group, about time and place, about right and
wrong." (127) This common language creates a sense within
people that they are in a distinctive social arena with its own
version of common sense. We study law by studying domains and the
way law may help structure a domain as well as its use within the
domain. To demonstrate this Engel reports on some of his findings
empha- sizing four aspects of domains: the actors, the sense of
time and place, the sense of community, and norms. Engel suggests
that focusing on these aspects when studying domains offers the
opportunity for generalization about law across domains, thereby
avoiding a pattern of analyses of the everyday and law always
ending in a mushy inconclusiveness. (166)
The other four essays in the volume present, in effect,
fundamental challenges to Sarat and Kearns' theoretical argument.
Catherine MacKinnon's essay, "Reflections on Law in the
Everyday Life of Women," offers a political challenge. It
takes an aggressively law-first perspective. She argues that law
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matters. It makes and maintains the everyday world in which women
live, but law does little or nothing for them because they have
no say in its making or its application. Everyday life is not a
lively, normatively resourceful arena that interacts with law.
Instead, it is an arena in which women are prisoners and victims
of the law.
MacKinnon's essay is part of her larger argument for fundamental
change in society, and she has a perverse confidence that law can
be an instrument of change if it is based on the reality of
women's everyday lives. This will require women having the power
to make law, and this ultimately is her inter- est. Indeed, she
has little patience with the controversy with which Sarat and
Kearns are concerned. She says bluntly: "there is a big
controversy over whether law matters to life and whether those
who care about everyday life should care about law at all. Does
life make law or does law make life, they wonder. When men make
both, and you are a woman, the distinction may not count for
much" (121)
Patricia Williams essay "Law and Everyday Life" is a
narrative written in the first person in which she shares her
thoughts on issues related to her interest in the control of
women's minds and bodies by the criminal justice system and other
social institutions. It has a breezy, witty, but at times biting
quality to it as she shares her thoughts on these issues while
riding in cab through Washington, D.C., passing through the
grocery store check-out, traveling with a group of critical legal
studies scholars in Eastern Europe, and watching daytime televi-
sion talk shows. She is not interested in doing the kind of
rigorous, empirical research Sarat and Kearns describe. Her
interest, too, is political -- dissecting the images and ideas
emerging from legal thinking regarding women's bodies and minds.
In her view law is not a contingent, perhaps marginal, phenomena
varying from one locale or domain to another. Rather, it is a
powerful ideological force that shapes the way in which our
culture conceptualizes women's bodies, minds, and experiences.
The everyday is just another word for the culture on which the
law operates to imprison women. The inclusion of Williams'
personal narrative in this volume poses another challenge -- one
asking what counts as scholarship in legal studies and about the
primacy of any kind of logic of inquiry. Ideological critique via
personal reflection is a direct challenge to social scientific
logic, including the kind outlined by Sarat and Kearns. David
Kennedy's essay "Autumn Weekends: An Essay on Law and
Everyday Life" raises this same challenge. It too is written
as a first person narrative and traces his travels and thoughts
over two weekends that took him to two different meetings in
Europe: the establishment of the International Jurists Platform
on East Timor in Lisbon and a meeting of the Academic Council of
the Royal Complutense College in Madrid. An expert on
international law at Harvard, Kennedy was invited to the first
meeting because of his expertise and to the second as a
representative of Harvard University which has a working
relationship with the Royal College.
In-between reflections on his travels, Kennedy does talk about
the intellectual concern over the relationship between the
everyday and law. In doing so, he makes a
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wicked theoretical challenge to the everyday using his two trips
as allegories. The tone of this discussion runs from ambivalence
to cynicism. He says that thinking about the relationship between
the everyday and law causes vertigo -- "an amusing
delirium" (214) that comes from continually going around and
around the possible ways in which the everyday and law might be
related and finding there is no stable answer. The concern about
the nature of this relationship is nothing new and Kennedy places
it in the context of a longstanding rebellion against the
"clean separation of norm and fact" (214) He wonders if
"(a)ssembling a book on law and everyday life may be no more
than a naive rotation through the standard modernist moves."
(214)
Underlying the concern with the everyday, in Kennedy's view, is
advocacy for social and political change. Implicit is a law-first
perspective and a vision of law as an instrument of change. He
says that "the everyday still sounds the siren call of a new
site for legal scholarship: someplace hip, passionate, private,
personal, the privilege of purple prose. Concern for the everyday
remains a sign for good liberal commitment to laws relevant to
the everyman... And what's wrong if legal scholars want a shot of
pragmatic earnestness in their aging, but still humane, project
to place law in the service of social change? A harmless little
charge of meaning in the old Warren Court dream, law gone to the
everyday." (214-15) While harmless, Kennedy finds this
activism and pragmatic earnestness, this attempt to redeem law,
tawdry and says so (225) A cynical description of his experiences
at the Lisbon conference and its call for legal activism in
behest of East Timor is an allegory on the tawdriness. In
contrast, the description of his trip to Madrid is meant to
represent a much more cosmopolitan or global perspective in which
it makes no sense to talk in terms of true, autonomous realms of
an authentic everyday. Such realms no longer exist; all that
exist are the representations of such realms for tourist
consumption (real and allegorical).
The volume's final essay leaves the avant-garde and presents a
straightforward theoretical argument. George Marcus, in the
ominously titled "Mass Toxic Torts and the End of Everyday
Life," argues, in effect, against the radical empiricism of
Sarat and Kearns and their idea of studying the literal world of
the everyday. The reason is simple -- the "authenticity of
dailiness" (60) is a chimera. The autonomous, normatively
lively everyday does not exist because the everyday is powerfully
but indirectly shaped by law and other expert systems of state
and economy in the postmodern society. These expert systems have
collapsed the global and the local, obliterating the distinction
between the two -- the end of everyday life and the social
theories extolling it.
Given the demise of both the everyday and social theory, Marcus
boldly asserts that legal scholarship in a postmodern society
must turn to the examination of law as a frontline dis- course
and its changing constructions of the everyday. Here we will find
an account of the changing nature of society. Marcus uses mass
toxic torts, the Agent Orange case in particular, as a
demonstration of his argument. Agent Orange tests the limits of
tort law's traditional
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assumptions regarding the everyday. He says the case
"obliter- ates the situated everyday grounds as the assumed
'scene' of tort cases. It challenges the theorist of law and
society to rethink the everyday as something other than a
concrete, person-to-person situation, and to see it as a MASS
condition with a complex ecology of effects (as in the long-term
and deep effects of toxicity, the apocalyptic harm wrought by the
complex processes of modernity). The routine, ordinary, and
quotidian is to be understood as much in global as in local
terms." (261-62) Abandoning theory for the pragmatic
discourse of law, scholarship should be a critique of ideology --
"reading for quiet, but radical transformations in the
understanding of social and cul- tural phenomena." (268-69)
Here LAW IN EVERYDAY LIFE ends, with no attempt to tame the
unruly voices in these essays. The book takes the reader to the
very edge of contemporary, civilized thinking on legal studies --
some may say it goes over the edge. But perhaps we need to take a
walk on the wild side occasionally in order to look back at the
research enterprise and its familiar assumptions with a more
critical eye.
Copyright 1995