Vol. 1, No. 1 (March 1991) pp. 16-19
RULES VERSUS RELATIONSHIPS: THE ETHNOGRAPHY OF LEGAL DISCOURSE by
John Conley and William O'Barr. Chicago: University of Chicago
Press, 1990.
Reviewed by Austin Sarat, Amherst College
Having one's "day in court" is a recurring and powerful
cultural trope--the titanic struggle in the adversarial arena,
the ultimate confrontation of good and evil, the moment when Law
speaks and Justice is done. For some, it means the chance to
prove a point, to win an argument, and to obtain vindication; for
others it is a chance to be heard, to tell one's side of the
story, and to have one's voice count. In his classic article
"The Forms and Limits of Adjudication," Lon Fuller
(1978:45) claims that the kind of participation afforded by
having one's day in court is central in giving adjudication its
meaning. As he puts it, "...the distinguishing
characteristic of adjudication lies in the fact that it confers
on the affected party a peculiar form of participation in the
decision, that of presenting proof and reasoned arguments for a
decision in his favor. Whatever heightens the significance of
this participation lifts adjudication toward its optimum
expression. Whatever destroys the meaning of that participation
destroys the integrity of adjudication itself."
If Fuller is right, the integrity of adjudication is in jeopardy
every day, in every courtroom in the country. For most people a
day in court is hardly a magisterial moment, an epiphany, or a
climatic encounter with Justice itself. Anyone who has ever been
in court--as litigant, juror or social science observer-- surely
knows that a day in court means endless waiting, bargaining,
trading and compromising in what are all-too-often dingy, noisy
corridors and hallways, or listening while lawyers talk to each
other and argue obscure points of law in whispered conferences
with the judge. It is thus often a frustrating and difficult
experience no matter what the result, an experience of passivity
and baffling incomprehension, an experience of being silent
rather than speaking, of being unnoticed rather than heard. Yet
if ever there was to be a place where having one's day in court
might fulfill our most grandiose cultural expectations, small
claims court would likely be the place. Here there are no
lawyers. Litigants speak for themselves, and they speak directly
to the judge; here legalistic formality is displaced, and equity
reigns. Here law vividly confronts daily annoyances and the
issues that turn those annoyances into matters of principle. Thus
research on small claim's courts may be particularly useful in
fleshing out the cultural meaning and significance of having
one's day in court.
Conley and O'Barr's, RULES VERSUS RELATIONSHIPS: THE ETHNOGRAPHY
OF LEGAL DISCOURSE, does just that. It provides a vivid and
lively picture of the discourses used, and roles played, by small
claims litigants and judges. It is an insightful ethnography of
the courtroom as a social stage, and a useful interpretive
account of the way people participate on that stage.
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In their Introduction, Conley and O' Barr describe their work as
a study of "...the ways in which ordinary people relate to
the American legal system,...how lay people identify and analyze
legal problems , how they decide when and in what form to bring a
problem to the legal system, and how they respond to the demands
that the system makes of them." (p. ix) These questions,
Conley and O'Barr claim, have been all-too-often neglected in
both traditional legal scholarship and sociolegal research. That
scholarship and research pays too much attention to the
experiences of some participants-- lawyers and judges--in the
legal process while ignoring others-- litigants; it confines
itself to the largely written discourse which lawyers and judges
produce and ignores "the verbal exchanges that constitute
the practical, everyday discourse of the law." (p. 2) RULES
VERSUS RELATIONSHIPS seeks to confront the moment when folk
culture meets legal culture, to privilege speech over writing,
and to give voice to those whose voices have been absent in most
scholarship about law. This is then a project of correction, of
righting-the-balance, of filling a gap.
Yet rhetorically and performatively there is more to Conley and
O'Barr's ambition than just a desire to make an incremental
contribution to the progress of normal science. Thus they frame
their work as an heroic struggle to unearth, record and listen to
"largely unheard voices" of lay people and legal
professionals in "the everyday world of the law...."
(p. 3) Their repeated references to the everyday suggest that
RULES VERSUS RELATIONSHIPS is a work which notices speech and
action that is ubiquitous and ordinary, and is largely unnoticed
precisely because it is both ubiquitous and ordinary.
To take up for a moment Conley and O'Barr's own rhetorical claim
and to direct it to their own work, I think that there are three
voices to be found in the pages of RULES VERSUS RELATIONSHIPS two
of which are acknowledged and embraced; the other, though quieter
and unacknowledged, is nonetheless powerfully present. These
voices co-exist uneasily in this book. Their uneasy co- existence
occasionally ruptures the flow of the arguments and leaves the
reader a bit uneasy trying to figure out who Conley and O'Barr
are addressing and what provides the central impetus to their
work. Yet their co-existence is itself instructive about the
state of contemporary sociolegal scholarship.
In their acknowledged voices, Conley and O'Barr present their
work as an ethnographic expose, a work of revelation, a
positivist project of discovery in which they first reveal the
biases of previous scholarship, and then courageously give voice
to the voiceless by making audible what has been previously been
silenced. Alternatively, Conley and O'Barr speak policy talk;
they imagine a policy audience and address themselves to it. They
want to improve the performance and operation of small claims
courts, and they claim the authority of science to make a
contribution to policy debate. In their scientific and policy
voices, their own compositional energy, their own editorial
choices and their own narrative strategies are themselves
silenced and displaced.
Page 18 follows
There is, though, another, less acknowledged voice in this book.
This is a voice filled with moral passion and energy, a voice
which speaks of more than simply of filling another gap in a
scholarly literature. This voice calls law itself to account for
being all too often unresponsive to the pains and struggles of
those who call for its help or who seek to defend themselves
against the claims of the socially powerful. RULES VERSUS
RELATIONSHIPS is surely a first class scientific project, yet
Conley and O'Barr's passion for fairness is palpably present on
almost every page. Theirs is a project well within the tradition
of legal anthropology, but their struggle to make that tradition
more open, more humane and more politically engaged enlivens
their writing and their arguments.
At the center of RULES VERSUS RELATIONSHIPS is a description of
two different discursive styles which animate the proceedings of
small claims courts and small claims litigation. The first is a
privileged style, a style embraced by 'repeat players' who use
the courts for debt collection. Such "rule oriented
litigants interpret disputes in terms of rules and principles
that apply irrespective of social status. They see law as a
system of precise rules for assessing responsibility, and reject
as irrelevant everything not circumscribed within these
rules." (pps. 58-59) A second discursive style focuses on
and emphasizes relationships. This so called
"relational" style is most often used by minority group
litigants as well as women and the poor. It emphasizes the
importance of the social networks in which disputes occur,
describes particular incidents as part of ongoing transactions,
and urges law to be responsive to human need rather than
precisely drawn legal obligations.
Conley and O'Barr demonstrate that despite the informality of
small claims courts, judges are still more responsive to rule
rather than relational styles. Here, however, they also carefully
document variations in the dispositions and roles of those
judges. They suggest that small claims judges can, through their
questioning and sympathetic interaction, identify the legally
relevant information in relational accounts, and, in so doing,
counteract the privilege of rule oriented litigants. They
critique, though mostly by indirection, those judges who support
and encourage that privilege by their own passivity, or those who
insist that the judicial role is limited and limiting.
For those interested in what it means to have one's day in court,
Conley and O'Barr note that it is the opportunity to tell one's
story that, for most litigants, is the most important part of
their experience in small claims court. Yet here Conley and
O'Barr position themselves as policy advisors to judges and court
administrators rather than as social critics; here their
admirable moral passion is displaced by a narrow policy concern.
Going to court is in this culture, despite its frustrations and
distressing realities, a ritual of high drama and carefully stage
managed performance; going to court is a rare opportunity, carved
out of the noise of
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social relations and the rush of daily life, for a narration, a
telling, a recreation of pain, grievance and trouble. Here
litigants can play a visible and active role in the construction
of 'official' accounts, and, in so doing, experience the
validation and vindication of rhetoric and gesture played out in
the privileged space of law. Where that telling is truncated,
Conley and O'Barr note, litigants end-up frustrated and angry;
where a sympathetic hearing is afforded, litigant satisfaction is
increased. Why litigant satisfaction is the focus of their
analysis, or whether it should be, is, however, never explained.
Nevertheless, the vocabulary of satisfaction lends itself quite
easily to policy advice presented in terms of efficiency and
cost-benefit calculations; "By paying attention to what
litigants say rather than acting on assumptions about their
objectives and concerns, the law may discover opportunities to
bring about material increases in litigant satisfaction in
exchange for minimal commitments of time and resources." (p.
131)
In the end, RULES VERSUS RELATIONSHIPS is a useful and
interesting book not just for what it tells us about the cultural
meaning of having one's day in court, but for what it displays of
the uncertainties and polyvocality of contemporary sociolegal
research. Understanding the co-existence of voices and discourses
in social science is no less important than understanding similar
plurality in legal settings. Just as the intelligent policy
advisor seeks to strengthen law by making room for less
privileged voices, so might a loyal participant in the sociolegal
enterprise urge receptivity to the voice of moral passion and
concern for the underprivileged as well as to the voices of
science and policy.
REFERENCES
Lon Fuller, "The Forms and Limits of Adjudication,"
American Courts Systems, Sheldon Goldman and Austin Sarat
(editors), San Francisco: W. H. Freeman, 1978.