After Hegemony: The Varieties of Legal Consciousness Research
| DOI | 10.1177/0964663919869739 |
| Author | Simon Halliday |
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| Subject Matter | Review Essay |
Review Essay
Social & Legal Studies
2019, Vol. 28(6) 859–878
After Hegemony: The
ª The Author(s) 2019
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Varieties of Legal
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DOI: 10.1177/0964663919869739
Consciousness Research
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Simon Halliday
University of York, UK
MARC HERTOGH, Nobody’s Law: Legal Consciousness and Legal Alienation in Everyday Life. London:
Palgrave Macmillan, 2018, pp. 215, ISBN 978-1-137-60396-8, £49.99 (hbk).
Introduction
In her 2005 essay ‘After Legal Consciousness’, reviewing the field of legal conscious-
ness research, Silbey proposed that ‘it might be time to move on’ from its study (Silbey,
2005: 323). The field, she felt, had lost its way and had drifted too far from its original
underlying purpose.
This was a striking suggestion, not least because, only 7 years previously, Silbey had
produced one of the most empirically and theoretically rich studies of legal conscious-
ness to date (Ewick and Silbey, 1998). Yet, despite Silbey’s stature in the field,1 and the
care with which she made her case, her advice has been roundly rejected. An examina-
tion of the literature from 2006 onwards reveals that, if anything, sociolegal scholarship
on legal consciousness has gathered pace.
The body of work has certainly expanded notably along the dimensions of space and
time. Legal consciousness research, having previously focused mainly on the United
States (e.g. Engel and Munger, 2003; Merry, 1990; Nielsen, 2000; Sarat, 1990) and the
United Kingdom (e.g. Cooper, 1995; Cowan, 2004), has since been undertaken in a
diverse set of new countries, including Australia (Richards, 2015), Bolivia (Ellison,
2017), Bulgaria (Hertogh and Kurkchiyan, 2016; Kurkchiyan, 2011), Canada (Rana-
singhe, 2010), China (e.g. Gallagher, 2006; Gallagher and Yang, 2011), Egypt (Kulk
and de Hart, 2013), Malaysia (Moustafa, 2013), Norway (Kurkchiyan, 2011), Poland
(Hertogh and Kurkchiyan, 2016; Kurkchiyan, 2011), Thailand (Engel and Engel,
2010), Uganda (Sandvick, 2009) and the Ukraine (Kubal, 2015). It has also looked
beyond the contemporary to include historical enquiry, examining legal consciousness
in medieval India (Davis and Nemec, 2016) and mid-20th century Romania (Serban,
2014).
Moreover, researchers are undertaking legal consciousness work in relation to an
increasingly eclectic set of issues: from abortion (Wilson, 2011), to begging (Rana-
singhe, 2010), to cock fighting (Young, 2014), to conservation (Pieraccini and Cardwell,
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2016), to fat acceptance (Kirkland, 2008), to housing occupation (Cowan et al., 2018), to
indigeneity (McMillan, 2011), to medicine (Halliday et al., 2014; Picton-Howell, 2018),
to migration (Abrego, 2008, 2011; Gehring, 2013; Schwenken, 2013), to ombudsmen
(Gill and Creutzfeldt, 2017), to sexualities (Harding, 2011; Hull, 2016; Knauer, 2012;
Oswald and Kuvalanka, 2008), to sex work (Boittin, 2013), to the sharing economy
(Morgan and Kuch, 2016).
The sociolegal community is not, it seems, for moving on. Why might this be so?
How might we explain the enduring appeal of legal consciousness despite the latter-day
scepticism of perhaps its most influential researcher?
The answer, it is suggested, is because Silbey’s disquiet about legal consciousness
research having lost its sense of the social and structural character of law (on which more
later) was based on a history of the research agenda that was partial. Her argument only
had purchase from the perspective of one particular theoretical orientation within socio-
legal studies: that of critical legal theory. The contention of this essay is that the research
agenda and the methodological perspectives surrounding legal consciousness have
always been more catholic than Silbey argued for. The concept, as we shall see, has
proved useful for a number of the core concerns and traditions of the law and society
movement (Engel, 1998), unfettered to the core project of critical legal theory.
Most legal consciousness scholars, then, in continuing to employ the concept to
pursue the basic research questions of the law and society movement, have simply
overlooked Silbey’s scepticism because of its failure to connect with their own con-
cerns. Others, however, have explicitly rejected the critical theoretical premise under-
pinning both Silbey’s original legal consciousness project and her subsequent call to
move on. Such is the approach taken by Marc Hertogh in his recent book, the subject
of this review essay. In rejecting Silbey’s critical convictions, Hertogh proposes an
alternative ‘secular’ approach to legal consciousness, one he believes is not blinkered
by what he sees as critical theory’s quasi-religious faith in the hegemonic force of the
liberal state’s legal system.
We shall critically examine Hertogh’s claims in due course. But first, we must sub-
stantiate the claim that Silbey has offered only one narrative in a more complex set of
stories about sociolegal engagement with the notion of legal consciousness.
Four Approaches to Legal Consciousness Research
The argument of this section is that legal consciousness has been a meaningful concept
for a broad range of sociolegal researchers from the diverse intellectual backgrounds that
together constitute the law and society field. This suggestion is illustrated by identifying
at least four broad approaches to sociolegal research for which the concept of legal
consciousness has been important: (1) a critical approach, (2) an interpretive approach,
(3) a comparative cultural approach and (4) a law-in-action approach.
A helpful way of sketching out the differences between these approaches is to analyse
the scholarship according to some basic methodological questions: Why should we study
legal consciousness? What is meant by legal consciousness? (What is the ‘legal’? And
what do we mean by ‘consciousness’?) Whose legal consciousness is being explored?
How should we study it? By asking these ‘why’, ‘what’, ‘who’ and ‘how’ questions, we
Halliday
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can more easily see the catholicity of the legal consciousness research agenda and the
particularity of Silbey’s account of it.
Before embarking on the analysis, however, let me offer an important caveat: The
sketch of these approaches should be interpreted lightly. I am not suggesting, for exam-
ple, that there is no overlap or dialogue between them. Rather, they are presented in the
manner of Weberian ideal types – ‘exaggerated or one-sided depictions that emphasise
particular aspects of what is obviously a richer and more complicated reality’, as Kron-
man puts it (1983: 7). The sketch is thus intended merely as an analytical device, a way
of illustrating diversity within the heritage of the law and society field and, in the light of
this, of explaining why legal consciousness has proved to be such a popular and enduring
research concept. Accordingly, I do not suggest that all individual projects or researchers
can be easily pigeonholed into one of the four approaches (though I do make reference to
published projects to illustrate particular points).
A Critical Approach
Why Study Legal Consciousness? According to Silbey, the principal motivation of a
critical focus on legal consciousness has been to solve the puzzle of state law’s
hegemonic force, a puzzle that has emerged from a long line of enquiry regarding
law, domination and ideology, one that ultimately can be traced back to the work of
Marx. As Hunt noted,
One of the most distinctive derivations from modern Marxism which characterizes critical
legal theory has been the shift of focus from economic relations to the focus upon political
and cultural relations. Central to this concern is ideology, conceived as a mechanism which
forms the consciousness of agents. Underlying this preoccupation with ideology is a con-
cern with the question: how is it that those who are systematically disadvantaged by the
existing order nevertheless accept the legitimacy of the institutions and values which per-
petuate their subordination? (1986: 11)
For earlier critical legal theorists, legal consciousness was the story which the legal
profession, particularly the courts, told about law (Hunt, 1986) – a story of justice and
equality under law that failed to match reality but which, in the telling, nonetheless
caused or permitted society to be largely blind to law’s failures and its role in the
subordination of the working class (Munger and Seron, 1984; Trubek, 1984).
However, within this critical tradition, legal consciousness operated as a theoretical
tool, largely in the absence of empirical enquiry. The dynamics of the relationship
between the story of law promulgated by the legal profession and the legal consciousness
of ordinary people were under-explored. The mechanisms for the faithful reception by
society of the false story of law – the hegemonic process – were not fully worked
through. Society’s legal consciousness was argued to be either the product of a psycho-
logical coping mechanism – a form of denial prompted by the need to deal with the
contradictions between rhetoric and reality (Trubek, 1984: 607) – or it was presumed to
be internalised without question by society, a kind of ‘transmission belt’ model of legal
hegemony (Trubek, 1984: 613). Thus, the notion of law possessing such hegemonic
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power operated more as a theoretical postulate than as an empirical puzzle within critical
theory (Sarat and Kearns, 1995; Trubek, 1984). It was this empirical hole in the theory of
hegemony that law...
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