Wrong about Rights: Public Knowledge of Key Areas of Consumer, Housing and Employment Law in England and Wales

Publication Date01 September 2017
AuthorPascoe Pleasence,Catrina Denvir,Nigel J. Balmer
DOIhttp://doi.org/10.1111/1468-2230.12290
Date01 September 2017
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Wrong about Rights: Public Knowledge of Key Areas
of Consumer, Housing and Employment Law in
England and Wales
Pascoe Pleasence,Nigel J. Balmer,∗∗ and Catrina Denvir∗∗∗
Over many decades, processes of juridification have brought about huge growth in legal rights,
responsibilities and protections, yet citizens appear to poorly understand this ‘law thick’ world.
This impacts citizens’ capacity to ‘name, blame and claim’ in the legal domain at a time of retreat
from public funding of civil legal services. This article examines public knowledge of rights in
key areas relating to consumer,housing and employment law. Drawing on data fromthe 2010–
2012 English and Welsh Civil and Social Justice Survey, the article uses responses to a series of
hypothetical scenarios to explore public knowledge of rights and characteristics associated with
knowledge. Our findings highlight a substantial deficit in individuals’ understanding of legal
rights and responsibilities – even among those for whom particular rights and responsibilities
have specific bearing. We also consider what these findings mean for public legal education and
the efficiency, efficacy and legitimacy of the law.
INTRODUCTION
We live in a ‘law-thick’ world1in which our daily activities are played
out within a complex and extensive legal framework. Successive waves of
‘juridification’ – defined by Habermas as ‘the tendency towards an increase in
formal (or positive, written) law that can be observed in a modern society’2
– have seen law become ‘ubiquitous in social life’.3An increasing range of
legal rights, responsibilities and protections have come to apply in the spheres
of education, employment, children and families, health, housing, welfare
Professor Empirical Legal Studies, Faculty of Laws, University College London.
∗∗Reader in Law and Social Statistics, Faculty of Laws, University College London.
∗∗∗Director of the Centre for Legal Innovation, Ulster University. We are very grateful to the Legal
Education Foundation for funding this work and to the 3,911 respondents who gave their time to
take part in our survey.
1 G. K. Hadfield, ‘Higher Demand, Lower Supply? A Comparative Assessment of the Legal
Resource Landscape for Ordinary Americans’ (2010) 37 Fordham Urban Law Journal 129, 133.
2J.Habermas,The Theory of Communicative Action, Volume 2: Lifeworld and System (Cambridge:
Polity Press, 1987) 357. He then wenton to distinguish between ‘the expansion of law, that is the
legal regulation of new, hitherto informally regulated social matters, from the increasing density
of law, that is the specialised breakdown of global statements of the legally relevant facts into more
detailed statements.’ Habermas argued that there have been four epochs of juridification, with the
most recent accompanying the expansion of the welfare state. Veitch et al (2007) argue that we
are now in the midst of a fifth epoch, accompanying the decline of the welfare state,compr ising
‘the re-embedding of private law mechanisms – contract and property law in particular – within
formerly public, State-owned areas’ and the expansion of supranational law. See further,S. Veitch,
E. Christodoulidis and L. Farmer Jurisprudence: Themes and Concepts (Oxford: Routledge, 2012).
3 W. Twining, Blackstone’s Tower: The English Law School (London: Sweet and Maxwell, 1994) 16.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017) 80(5) MLR 836–859
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Pascoe Pleasence, Nigel J. Balmer and Catrina Denvir
benefits, consumer goods and services, and our environment.4Yet, it appear s
that, at least in some contexts, ‘the vast majority of the population systemati-
cally mispredicts . . . the content of the law’.5A steadily growing number of
studies of the public’s understanding of law point to a substantial knowledge
deficit.6
The deficit appears greater in some areas of law than others, in part a
function of salience.7After all, there is less reason for individuals to possess
knowledge with no clear bearing on their lives. So, for example, Casebourne et
al’s study of employee awareness of employment rights in the United Kingdom
demonstrated that those with dependent children were ‘understandably’ more
likely than others to know a lot or fair amount about the detail of the parental
right to request flexible working (40 per cent vs 27 per cent).8There is also
less reason for people to have a grasp of the intricacies of the law than broader
legal principles, and again this is reflected in findings to date.9
Furthermore, there is evidence of a lesser deficit for those with an interest
in or, more predictably, relevant experience of the law. So, Baker and Emery10
found that students just about to start a course on family law had slightly
4 See,forexample,G.Teubner,Juridification of Social Spheres: A Comparative Analysis in the Areas of
Labour, Corporate, Antitrust and Social Welfare Law (Berlin: Walter de Gruyter, 1987); G. Howells,
and S. Weatherill, Consumer Protection Law (Aldershot: Ashgate, 2nd ed, 2005); T. Goriely,
‘Making the Welfare State Work: Chang ing Conceptions of Legal Remedies within the British
Welfare State’ in F. Regan, A. Paterson, T. Goriely and D. Fleming (eds), The Transformation of
Legal Aid (Oxford: OUP, 1998); H. Gibson, ‘Home-School Agreements: explaining the growth
of “juridification” and contractualism in schools’ (2013) 39 Oxford Review of Education 780; K.
Veitch, ‘Juridification, Medicalisation, and the Impact of EU Law: Patient Mobility and the
Allocation of Scarce NHS Resources’ (2012) 20 Medical Law Review 362; Veitch, Christodoulidis
and Farmer, n 2 above.
5 K. Williams, Litigants in Person: A Literature Review, (London: Ministry of Justice, 2011).
6 See, for example, C. F. Cor tese, ‘A Study in Knowledge and Attitudes Towards the Law’ (1966)
2Rocky Mountain Social Science Journal 192; M. Williams and J. Hall, ‘Knowledge of the Law
in Texas: Socioeconomic and Ethnic Differences’ (1972) 7 Law and Society Review 99; L. V.
E. Saunders, ‘Collective Ignorance: Public Knowledge of Family Law’ (1975) 24 The Family
Coordinator 69; P. T. Kim, ‘Norms, Learning, and Law: Exploring the Influences on Workers’
Legal Knowledge’ (1999) 2 University of Illinois Law Review 447; J.M. Darley, C. A. Sanderson and
P. S. LaMantia, ‘Community Standards for Defining Attempt: Inconsistencies with the Model
Penal Code’ (1996) 39 American Behavioral Scientist 405; A. Barlow, S. Duncan, G. James and
A. Park, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century
(Oxford: Hart, 2005); M. Militello, D. Schimmel and H. J. Eberwein, ‘If They Knew, They
WouldChange’ (2009) 93 NASSP Bulletin 27; R. Panades, R. Corney, C. Ayles,J. Reynolds and
F. Hovsepian, Informing Unmarried Parents About their Legal Rights at Birth Registration (London:
One Plus One, 2007); L. J. Parle, Measuring young people’s legal capability (London: Independent
Academic Research Studies and PLEnet, 2009); P. Pleasence and N. J. Balmer, ‘Ignorance in
Bliss: Modeling Knowledge of Rights in Marriage and Cohabitation’ (2012) 46 Law and Society
Review 297; C. Denvir, N. J. Balmer, and P. Pleasence, ‘When legal rights are not a reality:
do individuals know their rights and how can we tell?’ (2013) 35 Journal of Social Welfare and
Family Law 139; L. A. Baker and R. E. Emery, ‘When Every Relationship is Above Average –
Perceptions and Expectations of Divorce at the Time of Marriage’ (1993) 17 Law and Human
Behavior 439.
7 See, for example, Saunders, ibid;J.Casebourne,J.Regan,F.NeatheyandS.Tuohy,Employment
Rights at Work: A Survey of Employees 2005 (London: Department of Trade and Industry, 2006);
Pleasence and Balmer ibid.
8 Casebourne et al, ibid.
9ibid.
10 Baker and Emory, n 6 above.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(5) MLR 836–859 837

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