Legal Consciousness: Some Observations
| Author | Dave Cowan |
| Date | 01 November 2004 |
| Published date | 01 November 2004 |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.00518.x |
Legal Consciousness: Some Observations
Dave Cowan
n
This article argues that US studies of ‘legal consciousness’ have much to o¡er UK socio-legal
studies. It is,perhaps, surprising that so little attention has been paid to this set of understandings.
I seek to rectify that imbalance in the transatlantic relationship by outlining legal consciousness
and its critiques. I then drawo n homelessness applicant interview data to di scuss their ‘legal con-
sciousness’, illustrating the importance of the value of dignity; how they make sense of their
decisions; a nd the spaces in which legal consciousness may be produced.The study is a limited
examination, but it enables us to questionthe ass ertionthat welfare applicants‘know the law’and
(ab-)use it.
‘. . .[T]he legal consciousness of the welfare poor is a consciousness of power and
domination, inwhich the keynote is enclosure and dependency,and a consciousness
of resistance, in which welfare recipients assert themselves and demand recognition
of their personal identities and their human needs.’
1
In this paper, I suggest that a study of legal consciousness would have plenty to
o¡er UK socio-legal studies.
2
Legal consciousness research represents a challenge
to law and society scholarship concerning the focus of socio-legal research.
3
In a
memorable sleight of hand,Ewick and Silbey refer to the shift in theoretical ques-
tions ‘away from tracking the causal and instrumental relationship between law
and society toward tracing the presence of law in society’.
4
The methodological
n
University of Bristol. It is with some di⁄dence that this article appears in my own name. Simon
Halliday was a crucial inspiration throughout the many months of its production; it was originally
intended as a joint article between us and some parts of the paper were worked through jointly.We
disagreed, howeverproductively, on the proper place of ‘law’in ‘legal consciousness’, and Simon gra-
ciouslychose to allow me to pursue myapproach.Weco-prese ntedthi s paperi n roughform at the Law
and Society Association meeting in Pittsburgh, June 2003. I would like to thank Ragini Shah, who
chaired our panel and suggested the notion of ‘dignity’. I am grateful to the Nu⁄eld Foundation,
which supported the research on which th is article was based. Additional thanks goto Davina Cooper,
who commented on an earlier draft of this paper; as well as the participants at a seminar given at the
Centre for Socio-Legal Studies, OxfordUniversity.
1 A. Sarat,‘‘‘Thelaw is all over’’:Power,Resistance,a nd the LegalCo nsciousness of theWelfarePoor’
(1990) 2 YaleJournal ofLaw and the Humanities 343,343^344.
2 To date therehave been just two explicit UK studies of legal consciousness: D.Cooper,‘Local gov-
ernment legal consciousness in the shadow of juridi¢cation’ (1995)22 JLS 506;L. Gies,‘Explaining
the absence of the media in stories of law and legal consciousness’(2003) 2 EntertainmentLaw 19.
3 A sample of this work is as follows: S. E. Merry, Getting Justice and Getting Even: Legal Consciousness
among Working-Class Americans (Chicago: Chicago UP, 1990); J. Comaro¡ and J. Comaro¡,
Ethnography and the Historical Imagination (Boulder: Westview, 1992); K. Bumiller, The Civil Rights
Society:The Social Construction of V|ctims (Baltimore: Johns Hopkins UP, 1988); P. Ewick and S.Silbey,
The Common Place of Law:Stories from Everyday Life (Chicago:University of Chicago Press,1998); A.
Sarat, n1 above, 343; L. B. Nielsen,‘Situating Legal Consciousness: Experiences and Attitudes of
Ordinary Citizens About Law and StreetHarassment’ (2000) 34 Law and Society Review 1055;D.M.
Engeland F.W. Munger,Rights of Inclusion:Law and Identity in the Life Stories of Americanswith Disabilities
(Chicago: ChicagoUP, 2003); E.A. Ho¡mann,‘Legal Consciousnessand Dispute Resolution: Dif-
ferentDisputing Behaviorat Two SimilarTaxicabCompanies’(2003) 28 Lawand Social Inquiry691.
4 Ewick and Silbey, ibid,35.
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(6) MLR 928^958
approach to socio-legal studies inherentin legal consciousness scholarship is a nat-
ural product of an interpretive approachto the social sciences and will be particu-
larly attractive to those whose interests tend towards the ‘socio’e nd of socio-legal
studies. The primary concern of legal consciousness scholarship is the study of
society, rather than the study of law per se ^ hence the critique of a ‘law-¢rst’
approach. Legal consciousness research seeks to understand people’s routine
experiences and perceptions of law in everyday life.
5
The focus above all, then, is
on subjective experiences, rather than on, for example, law and its e¡ects in
society. However, it can also o¡er insights which may resonate with the interests
of law-¢rst scholarship, and sobe attractive to those whose interests tend (at least
at times) tothe ‘legal’ end of socio-legal scholarship.
The challenge to socio-legal studies of a legal consciousness approach is that it
opens up a whole new arena of subjective experiences of law which is missed by
scholarship which puts formal ly legal phenomena at the heart of its methodol-
ogy.
6
The insight of the legal consciousness literature is that law is experienced
in everyday life outwith the terrain marked by formal legality (however gener-
ously de¢ned). Legal consciousness research consciously de-centres lawas a social
phenomenon.
This article applies this analytical approach to a study of (unsuccessful) welfare
applicants, under the homelessness legislation. In addition to opening up their
subjective experiences and perceptions of the housing applicationprocess, the ana-
lysis has allowed us to re£ect on and critique the common perception of appli-
cants held by government o⁄cials. In other words, this grounded study of the
legal consciousness of homeless applicants permits us to critique an ‘o⁄cial’ per-
ception of the applicants’legal consciousness and to expose itsshortcomings.
Applicants are often viewed as knowledgeable agents, conniving to screw the
system (which they understand well) by dishonestly providing information which
will compel the housi ng authority to o¡er housi ng (unless the d ishonesty can be
exposed).
7
Alternatively, teenagers are said to become pregnant in order to obtain
the bene¢tof council accommodation.
8
Or, it is said that ‘outsiders’ (asylum-seekers
and ‘illegal’ immigrants) have sought to abuse their status by seeking to gain access
to social housi ng through the homelessne ss route.
9
In this study it is suggested that
such a legal consciousness narrative is too simplistic. Instead, the data suggest that
5 See, for example,A. Sarat and T. Kearns,‘Beyond the Great Divide:Forms of Legal Scholarship and
Everyday Life’ in A. Sarat and T. Kearns (eds), Law in Everyday Life (Ann Arbor: University of
Michigan Press,1995)55.
6 Ewick and Si lbey, for example, crucially argue that the law-¢rst brand of socio-legal scholarship
means that ‘we exclude from observation that which needs yetto be explored and explained: how,
where and with what e¡ect law is produced in and through commonplace social interactions
within neighbourhoods, workplaces, families, schools, community organisations and the like’:
aboven 3,20.
7 See, for example, S. Halliday, ‘Institutional Racism in Bureaucratic Decision-Making: A Case
Study in the Administration of Homelessness Law’ (2000) 27 JLS 449, 464.
8 See, for example, DoE, Access to Local Authority and Housing AssociationTenancies (London: DoE,
1994); D. Cowan,‘Reforming the Homelessness Legislation’(1998)57 Crit Soc Pol 435.
9 This is re£ected in the regular alterations to homelessness law since the Asylum and Immigration
Appeals Act 1993; see also Tower Hamlets LBCvSecretary ofState for the Environment(199 3) 25 HLR
524.
Dave Cowan
929rThe Modern LawReview Limited 2004
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