Producing the Product: A Case Study of Law and Its Absence
| DOI | http://doi.org/10.1111/jols.12051 |
| Author | Dave Cowan,Helen Carr,Alison Wallace |
| Published date | 01 October 2017 |
| Date | 01 October 2017 |
JOURNAL OF LAW AND SOCIETY
VOLUME 44, ISSUE S1, OCTOBER 2017
ISSN: 0263-323X, pp. S93±S110
Producing the Product: A Case Study of Law and Its
Absence
Helen Carr,* Dave Cowan,** and Alison Wallace***
In this article, we seek to develop socio-legal studies through a
rupturing of the ideas behind the social and the legal, ideas that are
most often presumed to exist and are used to explain that which is
already there. The ubiquity of law and the omniscience of society have
become givens. We use a product called shared ownership as a case
study, arguing that the product was given life by a legal document (the
lease) which itself represented the translation of a range of different
perspectives and audiences (albeit not the consumer), and which, itself,
has been translated, most notably in a 2008 High Court decision. That
decision counterintuitively found that the lease had created an assured
shorthold tenancy (albeit a long one) but, despite its threat to the
product, has been largely ignored. We discuss the processes of, and
reasons for, the translation through which that ignorance has been
induced.
S93
*Kent Law School, University of Kent, Canterbury, Kent CT2 7NZ, England
H.P.Carr@kent.ac.uk
** University of Bristol Law School, Wills Memorial Building, Queens Road,
Bristol BS8 1RJ, England
d.s.cowan@bristol.ac.uk
*** Centre for Housing Policy, University of York, Heslington, York YO10
5DD, England
alison.wallace@york.ac.uk
The research for this article was funded by the Leverhulme Trust (project grant RPG-
2013-255) and the archival research was funded by the University of Bristol Law School.
The authors are grateful to these sources and to their research participants, and also to Jir
ÏõÂ
Pr
ÏibaÂn
Ïand Dan Wincott for their assistance with an earlier draft.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
There are two fundamentally problematic, almost paradoxical, presumptions
at the heart of much socio-legal (or, in its American formulation, law and
society) research: the socio- and the legal.
1
The presumptions, sometimes
elevated to assumptions, are problematic because they serve to explain that
which is already there.
2
They assume one before, or separate from, the other;
from these foundational problems, we were struck by the critique by this
volume's editor that:
Despite methodological and theoretical diversity, socio-legal scholars continue
to use criticisms of black-letter law as their hallmark and starting point of
exploration s of law's socie tal operation s behind the `mas k' of legal
formalism.
3
The ubiquity of law and the omniscience of society have become givens.
Even the sleight of hand by which `law and society' becomes `law in
society' to highlight their mutually constitutive effects falls at the assump-
tion of lives in/outside the law.
4
In his elegant critique, Fitzpatrick argued
that
. . . whilst society depends on law for its possibility, law has to remain apart
from it, resisting reduction in terms of society. Law then also marks a point at
which society fails in its universal sweep and becomes impossible. So, despite
all the incantations about law being the product of society, about its having to
change when society changes, and so on, law retains in its relation to society a
resolute, `positive' autonomy that has at least the virtue of maintaining
academic efforts to reduce it to something social.
5
Even in some more enlightened and self-aware scholarship, legality is
everywhere such that it loses its essence and, again paradoxically, it is
S94
1 See, for example, the interesting and diverse takes on the label in D. Feenan (ed.),
Exploring the Socio- (2013) and D. Cowan and D. Wincott, Exploring the Legal
(2015). The separation of socio- and legal between these texts, with its suggestive
difference, only served to highlight the implausibility of their separation.
2 See, for example, B. Latour, Reassembling the Social: An Introduction to Actor-
Network-Theory (2005) ch. 1. By contrast, ```society'' has to be composed, made up,
constructed, established, maintained, and assembled. It is no longer to be taken as the
hidden source of causality which could be mobilized so as to account for the existence
and stability of some other action or behaviour': B. Latour, `When things strike back:
A possible contribution of ``science studies'' to the social sciences' (2000) 51 Brit. J.
of Sociology 107, at 113.
3 Jir
ÏõÂ Pr
ÏibaÂn
Ï, `A Sociology of Legal Distinctions', this volume, S5.
4 This is the point made by Kay Levene and Virginia Mellema, in their critique of P.
Ewick and S. Silbey's The Common Place of Law (1998), who point out that legal
consciousness work `. . . prioritize[s] law above other forces and institutions in
interpreting legal consciousness' so that, paradoxically, they adopt the same law-first
approach as they seek to critique: K. Levene and V. Mellema, `Strategizing the street:
How law matters in the lives of women in the street-level drug economy' (2001) 26
Law & Social Inquiry 169, at 171.
5 P. Fitzpatrick, `Being social in socio-legal studies' (1995) 22 J. of Law and Society
105, at 110±11.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
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