Marc Hertogh: Nobody's Law: Legal Consciousness and Legal Alienation in Everyday Life
| Published date | 01 December 2019 |
| DOI | http://doi.org/10.1111/jols.12195 |
| Date | 01 December 2019 |
| Author | Emily Rose |
NOBODY'S LAW: LEGAL CONSCIOUSNESS AND LEGAL ALIENATION
IN EVERYDAY LIFE by MARC HERTOGH
(London: Palgrave Macmillan, 2018, 215 + xv pp., £49.99)
In this new addition to the substantial literature on legal consciousness, Marc
Hertogh seeks to chart out an alternative approach to the dominant course set
by Ewick and Silbey in their seminal work, The Common Place of Law,
1
and
subsequently in Silbey's article `After Legal Consciousness'.
2
Hertogh
proposes a `secular' approach to legal consciousness that contrasts in several
important respects from what he refers to as the dominant `critical' approach.
The overall aim of this `secular approach' is to understand `why people ±
because of their strong criticism about the justice system ± turn their back to
law' (p. 6).
The crux of Hertogh's argument is as follows. Law and society scholars
should not assume the salience of law in everyday life. While `critical' legal
consciousness scholars treat law's importance as a given or constant, the
`secular' approach focuses on if law matters and how it may do so. Drawing
on quantitative data Hertogh contends that many Dutch citizens hold a
`sullen tolerance' of judges and the court system. Through the use of three
case-studies, he also seeks to demonstrate that certain groups hold their own
ideas about law ± a `living law'
3
that contrasts with state law ± which guides
their sense of right and wrong and the actions they undertake. Hertogh
claims that the divergence from and discontent with state law and the justice
system signals a process of legal alienation. He then seeks to develop a
framework of legal alienation by which to better understand this public
dissatisfaction with law.
Chapter 1 sets out Hertogh's critiques of the `critical' legal consciousness
approach. Underpinning these is the notion of legal hegemony, which he
notes refers to the dominance of law in people's lives, as it is infused into
conceptual thinking and the structuring of our social actions, yet largely
unnoticed and uncontested. Hertogh views the use of this concept by
`critical' scholars as deeply problematic. He claims it gives rise to an
empirical flaw; that is, the mistaken starting point of the `critical' scholars
that law continues to retain support from the people. He claims it also gives
rise to methodological flaws. The `critical' scholars' goal of creating an
account of hegemonic legality focus on how law dominates as opposed to if
law dominates everyday life. Finally, he claims it gives rise to conceptual
flaws as the focus of enquiry remains solely on state law, albeit outside of the
state institutions in the form of legality, at the cost of missing non-state law
678
1 P. Ewick and S. Silbey The Common Place of Law: Stories from Everyday Life
(1998).
2 S. Silbey, `After Legal Consciousness' (2005) 1 Annual Rev. of Law and Social
Sciences 323.
3 E. Ehrlich, Fundamental Principles of the Sociology of Law (1936).
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
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