Vol. 10 No. 1 (January 2000) pp. 24-26.
THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE by Patricia Ewick and Susan S. Silbey. Chicago: University of Chicago Press, 1998. 318 pp. Cloth $42.00. Paper $16.00.
Reviewed by Charles Epp, Department of Public Administration, University of Kansas.
Political science scholars of law should read this book. Our research tends to be institutionally focused, especially court focused. With courts, our research tends to focus on the attitudes and preferences of elite actors. As a consequence, we can lose sight of the many aspects of law not found in institutional settings, as well as the cognitive, as opposed to attitudinal, aspects of decision-making. THE COMMON PLACE OF LAW, by contrast, provides a rich cultural description and analysis of ordinary individuals' cognitive perceptions of law and legality, many of which are not directly tied to formal institutions. The book is well-researched, well-written, and theoretically sophisticated.
The authors, Patricia Ewick and Susan Silbey, focus their analysis on what they call "legality," which they define as "the meanings, sources of authority, and cultural practices that are commonly recognized as legal" (p. 22) - in other words, on legality in popular consciousness. The authors' research methods consisted of in-depth, open-ended interviews with a random sample of 430 adult residents of New Jersey (p. 23); of these, 141 interviews form the empirical basis for the analysis (p. 27). (The authors relied primarily on the smaller sample of 141 respondents because these respondents were interviewed directly by the authors rather than by their research assistants. The smaller sample matches in relevant characteristics the larger sample; see Appendix A, pp. 256-58). The interviews focused
particularly on stories because of the theoretical assumption that stories provide especially reliable and valid indicators of the cognitive "schemas," or perceptual frames, that organize and structure individuals' perceptions about the world. Thus, the interviewers encouraged respondents to tell stories about problems in their home, work, and community (pp. 25-26). This very open-ended interview format was used in order to avoid imposing a formal, legal definition on particular problems or concerns. Issues of law and legality were to emerge only if, and only as, brought out by the interview respondents (p. 26). The researchers supplemented these data with responses to close-ended questions at the end of the interviews that specifically focused on the respondents' legal experience and legal knowledge (pp. 26-27). The book is based on detailed analyses of the respondents' stories, with a particular focus on common themes.
The book's thesis is that cognitive perceptions about law and legality cluster into three general categories, which they label "before the law," "with the law," and "against the law." Significantly, these schemas are deeply in tension; yet, they are also mutually reinforcing. A chapter is devoted to each of the three schemas uncovered by this method. In each chapter,
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the authors analyze each of the schemas along several dimensions. A summary is contained in a table on p. 224 in the concluding analysis.
In the schema "before the law" (chap. 4), law appears as a neutral, objective, coherent, timeless, but also rigidly confining, realm that is largely separate from, and above, ordinary life. Stories in this schema describe legality as it is seen in liberal legal ideology: impartial as to race, class, and position.
In the schema "with the law" (chap. 5), by contrast, law appears as a game that is played within ordinary life, and with the weapons of ordinary life: experience, skill, knowledge, and material resources. Stories in this schema describe legality, as it is seen in realist sociology or political science, as a strategic game in which individuals seek their interests with the resources at their disposal.
In the schema "against the law" (chap. 6), law appears as a foreign, occupying power that is dangerous to oppose openly but which may be resisted subtly and tactically, particularly through feints that seem to be within the "rules" but which temporarily erode or reverse power relations. Stories in this schema describe law as subordinated classes see it. For them, law is a tool of the powerful that may be attacked only indirectly, in Scott's (1985) felicitous term, through "weapons of the weak."
The most fascinating and important part of Ewick and Silbey's analysis is contained in the two concluding chapters (chap. 7 and 8), where they develop two intriguing and theoretically significant points. The first is that legality has a significant place in contemporary American cognitive schemas in constituting both individual agency and structural constraint. Ewick and Silbey argue that individuals, through their participation in human communication and "meaning-making," create perceptual frameworks about law that then constrain those same individuals. At the same time, individuals' strategic and tactical choices in articulating these frameworks have the effect of changing those constraints, if only in subtle ways.
The authors' second theoretical conclusion is that two of the schemas (before the law and with the law), while clearly in great tension, are also mutually reinforcing. Ewick and Silbey argue that these two schemas are held and used by most individuals, sometimes within virtually the same breath. Thus, as Ewick and Silbey argue, any claim that law is neutral and impartial immediately calls out many counter-examples; but, similarly, any claim that law is merely a tool of power and individual interests is typically developed in reference to a higher aspiration of legal neutrality and impartiality. The two schemas "before the law" and "with the law," by
supplying the gap in each other, serve to lend vitality to the law and maintain its ideological life in our culture.
There is a tension in Ewick and Silbey's rich and provocative analysis. At key points they argue that the three schemas are universally, or nearly universally, held and used in our culture, and thus do not vary in relation to class, race, official position, legal experience, or institutional setting (see, e.g., pp. 49-52). Yet, at other points the authors seem to suggest that these schemas do vary in relation to some of these factors. In particular, the schema "against the law" seems to be held and used primarily by people in subordinate positions (pp. 234-44). Similarly, the key elements of the schema
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"before the law" are "achieved by greater degrees of formal organization" (p. 77), and are articulated especially clearly in relationship to bureaucratic structures. Thus, although the three schemas plausibly are part of the cognitive framework of many, or most, people, they also seem to be invoked differently or with varying vitality in particular contexts or by people with particular backgrounds. This tension, in my view, is not sufficiently explored by the authors.
Although I suspect that few political scientists are prepared to use the research methods employed by Ewick and Silbey (but see Gilliom 1997), or to focus on topics so removed from institutional settings, there is much to be learned from this book. In particular, our discipline's nearly exclusive focus on the attitudinal preferences of official actors -- judges, in particular -- would be well supplemented by research on their cognitive schemas. The story method may be a useful means for beginning such research.
Gilliom, John. 1997. "Everyday Surveillance, Everyday Resistance: Computer
Monitoring in the Lives of the Appalachian Poor." STUDIES IN LAW, POLITICS
AND SOCIETY. 16: 275-297. Greenwich, CT: JAI Press.
Scott, James C. 1985. WEAPONS OF THE WEAK. New Haven: Yale University Press.