Chapter 7  Far from the Madding Crowds Redefining the Field of Socio-legal Studies from Within

Politics, the Law, and Scholarship: Contemporary Interventions

In the history of the field of socio-legal studies, the role of the law in politics was construed rather narrowly during its formative stages. In contradistinction, there has emerged a critical mass of work that looks at the role of politics in the making and practice of the law during the later decades (Vago 2015; Nonet 2017). A brief review of the relevant literature since the early 1990s demonstrates the presence of a sustained interest in legality that has been largely concentrated on the analysis of the role of politics in the making of new laws, the initiation of social change, and of course, law as a tool for social control and disciplining and hence a tool for disciplinary and institutionalized forms of violence (de Sousa Santos and Rodríguez-Garavito 2005; Loughlin 2000; Tamanaha 2004). Unfortunately, this view also implies a questionable acceptance of the distinction between public and private spheres as a reasonable guide for the study of law. In contradistinction, a more interactive view of the law characterizes legal mobilization and the invoking of legal norms as a form of political action by which the citizenry or political subjects at large use public authority on their own behalves (Rajagopal 2003; Levitsky 2015; McCann 2017). This form of public and political power, although contingent, is widely dispersed and thus open to various forms of mobilization on a global scale as well (Baker-Cristales 2008).

For rejuvenating the “older” socio-legal studies as defined by critical legal studies dating back to the 1970s, a full consideration of the factors that influence legal mobilization is important not only for understanding who uses the law and to which ends but also for predicting reactions to the implementation of public policy and legal regulations at both domestic and international levels (Cotterrell 2008). There is no doubt that politics strongly influences the form and extent of the implementation of laws and, in particular, the allocation of power and authority via the state. However, we must also consider the reverse and pay attention to how law interacts with, frames, responds to, and influences politics, society, and economics. To this end, in this section, I present a subset of critical interventions operationalized by socio-legal studies scholarship that engages with the politics-and-law relationship from multiple angles and via unsettling questions. This is also the lens through which I trace the reinvention of the field from within rather than simply responding to what existed before or outside. My preoccupation is with the distance between the academic studies of law in the progressive context of socio-legal studies and the politics of everyday life, social change, and transformation. The most current genre of socio-legal studies scholarship, which includes literatures on legal ethnography, legal consciousness, and law and the city with an acute interest in everyday life, is very keen on claiming to have closed that gap (Starr and Goodale 2002; Silbey 2005; Valverde 2012; Darian-Smith 2016; Hertogh 2018; Doll and Walby 2019). In my view, there is still more to be thought about.

In particular, in the larger context of law’s dependency on both politics and society, the complex relationship between law and social movements is of great significance. Social movements use a wide variety of legal strategies in their programs—including litigation, lobbying, and administrative advocacy—to bring about social change. Law, particularly rights and rights claims, provides movements with political strategies and plays an important role in the cultural anatomy of a social movement. No doubt, law is a contested terrain for social movement struggles and movements that often rely on the rights discourse to frame their grievances, to generate and circulate collective identity claims, and to recruit and mobilize activists as well as to develop a system-level critique. Law and legal strategies can exert conservative or oppressive influences on social movements as well, sometimes channelling protests and more radical forms of action into the orbit of conventional political institutions. Overall, this complex interaction among social movements, politics, and the law constituted the key venue through which socio-legal studies scholarship redefined itself from within and with direct reference to everyday life.

A key example of this came from the Global South, where challenging government authoritarianism and enduring neocolonialism were important vectors of political struggles both within and beyond law schools. For instance, the impetus for a radical reform of the law school curriculum in the name of social relevance and critical awareness found one of its best expressions in the development of an interdisciplinary first-year foundation course on “Economic and Social Problems of East Africa” developed by the law faculty at Dar es Salaam, Ghana (Shivji 1986). In this regard, socio-legal studies had a direct link with the streets in the Global South more so than elsewhere: in geographies stretching from Brazil, Chile, Argentina, and Nicaragua to China, India, and Japan, from Mozambique, South Africa, and Zimbabwe to Sri Lanka, critical approaches to law were real platforms for social and political change throughout the last quarter of the past century. In other words, there are alternative histories in the Global South that link law and society movements and socio-legal studies scholarship with actual social movements and political struggles in real time (Dirlik 1994; Bayat 1997, 2000; Samaddar 2006; Mignolo 2010; Roy 2011). Whether that impetus has been sustained in the Global North and Western academia in general is a question yet to be answered.

There is a second conjuncture whereby we witness many interventions made to both established academic disciplines and everyday politics from the cohorts of socio-legal scholars. Issues of citizenship and immigration are critical for understanding ways that individuals, communities, and diasporas are created, sustained, excluded, exploited, and marginalized via the law and how they respond to their circumstances through politics. For socio-legal studies scholarship, this has been an area of growing interest and dedication, particularly in the Global North, where law defines, decides, divides, and excludes in very structured and formalized ways. Citizenship, broadly defined, includes legal status, membership rights, civic involvement, social participation, and political, economic, and cultural linkages to structures that delimit, transcend, and deconstruct the state. At the same time, it is essential to understand the discourses and practices that implicitly and explicitly define citizenship in particular contexts. Race, gender, national origin, religion, ethnicity, language, age, social class, and other markers of membership and exclusion determine the claiming or attribution of citizenship (Parmar 2015). Moreover, globalization, migration, and transnational processes constantly reshape both citizenship and, again, exclusion from it, positioning individuals and communities either within or outside of legal orders (Hyndman and Giles 2011; Hamlin 2012). In this context, legal management, governance, and control over immigration are clearly crucial concerns. Given the new realities emanating from the war on terrorism, the restructuring of immigration and refugee policies at a global level, and the resultant sharpening of inequalities, it is essential to examine how movements, rights, and statuses are being distributed or denied by legal orders (Malkki 1995; Lindley 2014).

Under the heading of migration, citizenship, and membership, there also emerged the category of “displaced/dispossessed peoples,” which includes all those forced to migrate internally and internationally as a result of political, natural, or man-made issues (Glick Schiller and Salazar 2013; Casas-Cortes et al. 2015; Darling 2017). From homeless people, trafficked persons, and Indigenous peoples to asylum seekers, refugees, unaccompanied minors, and stateless people, millions are fleeing from Africa, South America, Southeast Asia, the Middle East, and Europe. Indeed, the heightened impact of recent migrant crises across the Mediterranean, Central America, Southeast Asia, Europe, and the Middle East demands new collaborative approaches to the millennia-old challenge of protecting those, especially children and women in the Global South, seeking refuge either regionally or across the North–South divide (Lems 2016). Forced displacement resulting from violent conflict, human rights abuses, climate change, natural disasters, economic disparity, or induced development leads to novel forms of marginalization and vulnerability because few legal instruments apply to safeguarding the rights of people on the move (Saunders 2014). Furthermore, the social, political, and legal issues of wealthy states favouring the immigration of select groups and brain-draining resource-poor countries of their highly educated citizens lead to the perpetuation of neocolonial oppression (Chimni 2009; Scheel and Ratfisch 2014). Unjust processes of migration are buried deep within the promising facade of globalization and new development models. These issues have been aptly discussed in the socio-legal studies canon.

Overall, since the early 1990s, the area of international law and politics indeed brought together a large group of scholars, teachers, researchers, and practitioners working on issues related to the politics of international legal thought, practice, method, and history. Institutions and organizations across the world, both in the Global North and South, have been employing a wide variety of theoretical and empirical approaches drawn from the disciplines of international law, anthropology, political science, history, political economy, sociology, international relations, and cultural studies in order to examine some of the most pressing problems related to the current global (dis)order and its normative underpinnings (Parfitt 2013; Grabham 2016; Nicholson 2016). The work of this group manifests a diverse range of political convictions. Their concerns range from a foundational critique of the practices of human rights and judicial activism to the development of Marxian, post-colonial, feminist, and queer legal theory and from the heterodox regulation of international finance and trade to the critical potential of international legal historiography (Parmar 2008; Eslava and Pahuja 2011, 2012; Gathii 2011; Parfitt 2014; Sreejith 2017). The increasing visibility of the disciplinary nature of international law in existing global, national, and local legal orders has led to contestations and reconfigurations of the separation between the domestic and the international realms (Rasulov 2010, 2016; Eslava 2015).

I see furthering of this project of analyzing law from local to global and back in critical theories pertaining to gender identities, critical race theories, feminism, and of course, post-colonial studies as they have been increasingly included in the socio-legal studies curricula. Cognizant of the brittle criticism that the original wave of feminist legal theory essentialized the feminine and excluded racialized and marginalized voices, since the 1990s, feminist socio-legal scholarship has been striving to become an energizing force again in a number of interrelated areas best characterized by the term intersectionality. In this larger context, another theme of critical importance is socio-legal studies’ intent to broaden the conversation on sex work by bridging issues relating to sex with other labour contexts by examining their intersections (Jeffrey and Sullivan 2009; Hickle 2017). In addition to important theoretical work on intersectionality in general, conducting critical research on sex work with an emphasis on the regulation of sex(uality) in “mainstream” workplaces; facilitating comparisons among working conditions, labour standards, workers’ rights in sex work, and “mainstream” labour; reflecting on how regulatory frameworks governing sex(uality) in the workplace both help and hinder workers in diverse contexts; and locating cross-national and geographically specific regulatory discourses governing sexuality, sexualization, and sexual harassment and exploitation in the workplace is one of the most important contributions made by contemporary socio-legal scholarship in this area (Raguparan 2017). All the same, the criminalization of the sex industry and the marginalization of people working therein remains a pressing issue, albeit made more visible (Law 2015).

The shared interest in gender and equality as related to race, class, sexual orientation, and disability cuts across many fields and hence encourages the cross-pollination of feminist critiques with debates on law, legality, normalcy, and order (Ahmed and Seshu 2014; Ahmed 2014, 2015; Baratosy and Wendt 2017). In a similar vein, queer theory’s application to law focuses on disrupting established meanings while also questioning identity claims and disciplinary boundaries. Scholars and activists engaged in these fields are keen to shed light on the interconnectedness of patterns of domination engendered by legal technologies and narratives, in particular those initiated and sustained by biopolitics and the institutional governance of social life. Queering law, domestic or international, has become the means for examining and disrupting law’s (re)production of the status quo through processes of othering in media, policy-making, legislation, adjudication, and litigation. Queering law also includes activism that addresses bodies, identities, and subjectivities in order to undermine the dominant conceptions of power and sovereignty. More generally, this theoretical approach seeks to undo law’s boundaries and binaries that serve to uphold current structures of oppression that not only affect queer subjects but other gendered, racialized, classed, (dis)abled subjects. Furthermore, queer theory critically attends to legal technologies such as citizenship, immigration status, and similar determinations of capabilities through legal categories by exploring both the oppressive and emancipatory aspects of these practices of othering lying at the root of local, communal, and personal dimensions of politics. Whether this is socio-legal studies or queer theory focused on law is open to debate, though the former has its materials selected almost exclusively from the legal field.

Lastly, the body of work characterized by class analysis and the Marxist critique has been marked by genuine attempts to define what law is and what law does with visible emphases on politics and social change. In terms of their absorption by socio-legal studies scholarship, it is apt to suggest that Marxist socio-legal studies has been offering its own take on how to tackle the potent category of class (MacKinnon 1983; Pashukanis 2017). In a globalized late capitalist economy, there is a marked need for new approaches to the age-old challenge of protecting workers’ rights and improving labour standards as well as addressing the global phenomenon of precarity and non-status people. Current forms of globalization affect both the nature of work and the character of the employment relationship itself in unprecedented ways. Improving competitiveness through restructuring workforces and production across national borders has indeed led to the emergence of a whole new class, that of the precariat, a term that began to define an entire field of study during the past two decades (Neilson and Rossiter 2008; Goldring and Landolt 2013; Tappe and Nguyen 2019). States in the North look for ways to preserve existing levels of employment and production while those in the South struggle simultaneously to promote growth and investment and to keep the labouring classes under control. Changes in production processes, locations of mass production, the effects of global market forces on redefining work, and worker’s rights and conditions have no doubt led to variations on this theme in the North and South. In this context, exploring the role played by states, courts, and the legal establishment, as well as international and regional courts, unions, domestic non-governmental organizations, international non-governmental organizations, social and political movements, existing international institutions such as the International Labor Organization, social clauses in trade agreements, the World Bank and other international financial institutions, and globalized industries and transnational firms assumes paramount importance for scholarship on labour and law (Buchanan 2008). Similar lines of questioning mark scholarship on international and comparative analyses of laws governing global and national redefinitions of public health, covering areas concerning the management and erasure of health systems, social welfare policies, environmental health law and policy, warfare and public health, human rights law and policy, health disparities and inequities, subordination and law, and more (Purvis 1991; Trubek et al. 1993; Chimni 1999, 2004; Okafor 2008).

Methodological Openings

Many of the subfields of inquiry under the aegis of socio-legal studies have a distinct take on the “able-bodied individual,” the “good citizen,” and “the worthy member of society.” They strive to incorporate feminist, critical race, social epidemiological, and critical disability theoretical perspectives on the distribution and socio-legal responses to illness, impairment, and injury. Similarly, using a critical and global lens is essential in areas concerning repro-genetics, genetic discrimination law and policy, medical ethics and law, medical testimony and the role of science in courts, and the regulation of genetic engineering, torts and malpractice law, health care discrimination, public health systems and services, and health care reform, as well as health outcomes specific to vulnerable or subordinated populations (Fidler 2002; Gostin, Wiley, and Frieden 2015). In this regard, socio-legal studies has enabled conversations that pinpoint the interactive and mutually constitutive relationships among law, public health, and medicine and between law and individual well-being, the latter understood as being both a socio-legal status and an embodied political experience (Powers and Faden 2006; Krieger 2015). Methodologies for conceptualizing the relationship between law and health are robust—incorporating public health, critical legal studies, and a canopy of related debates, disciplines, and fields. However, certain areas remain underdeveloped, such as the full-scale recognition of social stratification and the complex influence of economic and political systems on life chances and opportunities of individuals, groups, communities, and societies, a dangerous gap that is recognized by emerging scholarship (Fahrenwald et al. 2007; Lang and Heasman 2015).

On the critical issue of methodologies, ethnographic inquiries of law have also maintained a historic and steady position within the field. They were notably present particularly during the foundational years of law and society scholarship (Redding 2014). In more recent decades, renewed interest has arisen in an ethnography/law connection for the purposes of revisiting the character and shape of ethnographic methods of socio-legal scholarship and exploring the benefits and boundaries of ethnographic research practices in the production of knowledge (Starr and Goodale 2016). This has been particularly observable in areas such as criminology and the prison system as a separate heading due to the distinct nature of punitive measures used during incarceration (Werth 2012; Moore and Hirai 2014; Opsal 2015). Socio-legal scholarship in this area seeks to understand the social, political, economic, and cultural underpinnings of punishment in all its guises, not limited to prisons and executions or community-based corrective facilities, but also in immigrant detention facilities, mental institutions, welfare offices, schools, and neighborhoods. Examining punishment across time and space, penal policies established at the organizational, state, and national levels render punishment a socio-political practice that is experienced, constructed, and contested around the world, throughout history (Levine 1990; Israel 2004; Martel, Hogeveen, and Woolford 2006; Swiffen and Nichols 2017).

Another key methodological concern is that of doing comparative work. For instance, although societies in Asia and the Americas have their particularities regarding their positionality in the global history of capitalism and state formation as well as distinct challenges for engaged scholarship, many of the states in these regions share similar historical and political experiences such as their colonial backgrounds, post-colonial state-making, experiences of dictatorships, revolutions, democratic mobilizations, mass social movements, and civil wars. These geographically diverse societies, although different in their current legal and political cultures, also share constitutional values and paradigms. In this age of late capitalist globalization, as economic ties between these regions are gaining strength and momentum, issues such as the rule of law and rights struggles increasingly come to the fore as common themes. Examining legal developments, constitutional law and legal cultures from an interdisciplinary perspective allows for developing new insights concerning how political and historical paths cross. As already mentioned, a similar development of global analysis has also taken place in the field of labor rights. In hindsight, the socio-legal studies framework on rights formalized the scholarly dedication to supporting, promoting, and providing feedback for rights struggles. Focusing on the economic, political, social, and moral obligations of states, institutions, corporations, and other legal actors with regards to individuals, communities, and global society as a whole, this new generation of rights scholarship also attends to implications of global finance projects, corporate social responsibility, crowd funding, shareholder derivative actions, the restructuring of international financial markets, governance obligations of corporate boards, the morality of markets, and neoliberal policies of globalization (de Sousa Santos and Rodríguez-Garavito 2005; Gathii 2011; Cotterrell 2015; Harrington and Manji 2017). As such, socio-legal studies brought together an interdisciplinary group of scholars from around the world working on economic and social rights, including the rights to education, health, decent work, human dignity, social protection, an adequate standard of living, and the right to global commons and a clean environment. Scholars and practitioners in the field have made significant gains in both conceptualizing these rights and offering political and sometimes policy-relevant solutions to structural problems (Berman 2003; Gleeson 2009, 2010, 2016; Paret and Gleeson 2016). Needless to say, this area of work is closely related to the work on human rights and poverty, human development, capabilities, equality, and non-antidiscrimination law. This broader area began to address previously marginalized rights and the rights of disadvantaged groups, highlighting the possibility of existing human rights frameworks and concepts that could be more interruptive, inclusive, and systemic as well as methodologies for measuring the impact of the erasure and negation of economic and social rights on the well-being of individuals and communities.

Overall, these fields of comparative analysis have close relations with the more conventional debates on legal pluralism, although the critical literature on law, corporations, and globalization is quite weary of the pluralist perspective in its original format. Legal pluralism and non-state law debates traditionally had participation from a variety of disciplines, including anthropology, political science, economics, comparative law, legal history, and sociology (Galanter 1974; Sharafi 2007, 2008). With a focus on theoretical and practical problems resulting from the interaction of different types of law—such as religious law, customary law, state law, and international and transnational law as well as contestations of state law—legal pluralism initially provided an intellectual meeting ground for understanding “law in context.” More recent examples of collaborative research on legal pluralism include studies of the comprehensive regulatory activities undertaken by government, civil society, and other legal actors in various fields of global capitalism; discourses on rights over land and natural resources that are both socially and politically contested; the increasing intertwining of human rights and development discourses on issues in legal pluralism; and the perplexing relationship among law, customs, and religion as competing sources of normative reasoning and social ordering in diverse societies. In these and other substantive areas, a key goal of what we may call the third generation of legal pluralism is to facilitate conversations among social scientists, lawyers, legal scholars, activists, and policy-makers (Shahar 2008; Nelson 2010; Tuori 2014).

On a related track of bridging activism and academia, the kind of scholarship that emerged under the roof of critical research on race and the law suggests an urgency in terms of expanding the socio-legal studies research agenda to include race and racial inequality in a much more pronounced and methodologically responsible fashion, reflecting the exciting work done in the legal academy over the past two decades under the critical race theory rubric (Cotterrell 1997, 2013; Delgado and Stefancic 2017). In this spirit, law and society scholars are increasingly drawing upon studies of race and ethnicity that incorporate cultural studies and/or critical theory (Freire 2000; Nelken 2004; Solórzano and Yosso 2002; Edelman, Smyth, and Rahim 2016; McElhattan, Nielsen, and Weinberg 2017).

As already mentioned briefly above, the interplay among the law, gender, and sexuality is an equally precarious one. On the one hand, the law and legal decision-making are rooted in a tradition of predictability, uniformity, consistency, and self-referentiality. On the other hand, gender and sexuality are identities that are increasingly understood as dynamic, non-discrete, and fluid. As gender- and sexuality-related issues are increasingly brought forward to be resolved in legislatures and the courtroom, the question of how to reconcile these seemingly competing paradigms has gained increasing relevance. While critically examining the law and its relationship to gender and sexual identities—that is, how the law constructs, constrains, and/or enables gender and sexual minorities at the municipal, state, and national level—socio-legal scholarship led the way for a comparative engagement with both domestic and international legal systems, identifying established and emergent patterns. This line of work also touches upon the problem-laden, public-private divide in legal theory. There is a continuing debate over the role of legal institutions and processes in shaping the public-private dichotomy for public policy and institutions as well as people’s private identities and lives (Mnookin 1981; Clunie and Psarras 2016). Demonstrating the critical impact of the law on how the public-private boundary is drawn is key in this regard.

Under this general heading of the politics of (international) law, two particular areas stand out almost as an outcry—namely, the jurisprudence of disasters and food management (Parks et al. 2015; Freeman 2014, 2015). Questions such as how the law contributes to the makings of catastrophic disasters related to weak land use regulation, public subsidies encouraging the population of dangerous places, construction in flood lands and plains, or whether law could facilitate or compel corrective measures in the realms of mitigation, preparation, response, and recovery are essential for determining the true nature of these disasters (Ballestero 2015; Ammons and Roy 2015; Chabay, Frick, and Helgeson 2015; Howe et al. 2016; Beuret and Brown 2016). These questions provide more than the thematic nexus as they encourage the application of perspectives and concerns such as those concerning civil rights and liberties as affected by disaster management, social and environmental justice, private rights and regulatory authority, the well-being of special-needs populations, equity and efficiency in resource allocation, the voluntary versus involuntary assumption of risk, and “soft law” versus “hard law” approaches to protecting the public good, public health, and safety. They also implicate topics such as law and scientific uncertainty, reciprocal obligation and moral community, and responses to climate change and risk (Burton 2002; Gauna 2008; Gottlieb 2009; Murray 2011; Pellow and Park 2002, 2011). In a similar vein, in the area of regulation of food, the legal scaffolding of modern food systems and the chain of activities that link food production, distribution, wholesale, retail, consumption, and disposal reveal a densely textured social and economic environment invoking law in multiple ways and across several jurisdictions and again hinging on issues of obligation, morality, commitment, and the public good as counterlogics to market mentality (Cross and Morales 2007; Morales 2010; Spalding et al. 2012).

The emerging field of biotechnology as an interdisciplinary discourse is also informed by these concerns. Socio-legal studies scholarship on issues related to bioethical and biotechnological disputes attempts to bridge the gap between biotechnology and its sister fields, bioethics and intellectual property, rather than casting them in disciplinary isolation. The result has been the critical examination of diverse issues underrepresented in conventional scholarship, including biopiracy, genetic determinism, human commoditization, genetic property, public health, and tort, property, and contract issues concerning the body. In addition, this body of work adds race, gender, socioeconomics, and public policy strategies to the analysis of biotechnology and bioethics, contemplating the nexus where law, politics, science, society, and medicine meet (Ayres 2005; Dolgin and Shepherd 2014; Rothman 2017). An extension of this work is found in the area of regulatory governance (Halliday and Shaffer 2015). The study of regulatory instruments, institutions, and actors, how law shapes and responds to economic activity, and how law informs privatization and globalization processes through regulatory and administrative institutions allows us to examine how traditional as well as emerging regulatory instruments operate in self-regulation, covenants, management systems, market-based regulation, and societal responses to market expansions. Here, particular attention has been paid to the increasing demands of accountability and legitimacy in both domestic and international settings.

On a final note, the processes through which international organizations and transnational networks create law and legal norms and concomitantly shape national and international social, political and economic arenas have led to increasing concern across the field. International organizations, transgovernmental networks, and the regular involvement of non-state actors at the global level, including corporations and non-governmental organizations, affect and govern public and private interactions more extensively and intensively than ever before. Examination of the role of actors and mechanisms in the creation of transnational law, norms, and legal orders and their impact on domestic law and practice through processes of transformation and resistance also constitute the grounds upon which law school and socio-legal studies curricula began to overlap. As new technologies stand poised to initiate a global paradigm shift concerning the workings of legal institutions, new tools for regulatory governance and law enforcement generate novel forms of knowledge that confront traditional notions of due process and reshape norms around harm, damage, risk, and accountability. For instance, inter alia, the use of technologies that attempt to control social and political actors, provide or prohibit access to legal institutions and the polity, change societal understandings and expectations of what law is and how it is experienced, and present novel ethical and normative questions around privacy, ownership, access, and compliance that have now become part and parcel of syllabi on public and administrative law as taught from a socio-legal studies perspective.

In this context, the meaning of the law for both the colonized and the colonizers is also changing. The presumption of colonial continuity is a double-edged sword. For instance, in examining the extent and nature of colonial influence on legal institutions and legal culture, are we not unduly privileging the colonial encounter? As the new forms of scholarship in the field attest to, developing a fuller understanding of the interaction between law and colonial and post-colonial processes requires that we update our very notion of what law is and what it does. The study of law and indigeneity in both domestic and global contexts is a case in point. The much-needed interaction and comparative inquiry between scholars began to allow for the discussion of the similarities and differences among colonial/post-colonial/neoimperial conditions with respect to native peoples, with the hope of expanding the discussion beyond the discourses of resistance and human rights and to foreground other ways that Indigenous peoples engage with and redefine the law (Inman 2014; Birrell 2016). By doing so, socio-legal scholars aim at promoting inquiries of the complex legal landscape that involves multiple layers and meanings of what constitutes law for Indigenous peoples. By stressing the multiple sites of knowledge production that inform issues of indigeneity and that contextualize the engagement of native peoples with formal and informal legal institutions, understanding legality in Indigenous societies also leads to acknowledgement of the law’s ever-present connections to national identity and state power (Hunt 2014; Johnson 2016).

Through these aforementioned interventions and many more that are not included in this brief synopsis, new generations of scholars engaged in socio-legal studies actively seek to facilitate broad interdisciplinary conversations, collaborations, and action, challenging preconceived notions of “the legal” and “theory” while examining their own roles and complicities in structures of both oppression and emancipation (Beare, Des Rosiers, and Deshman 2014; Arthurs 2017). Despite this promise of redefining the field from within, as each of these movements responds to challenges that emerged from within the field rather than being responsive to impositions from outside, there remain dangers concerning how one thinks about and deals with law in context. For this, in the next section, I will venture an invitation to further engage with the political, philosophical, and historical critiques of everyday life and its relationship to both power/hegemony and subversive/authentic acts, the law constituting a paramount example.

The Call of Everyday Life and the Law

The topics browsed through in the previous sections have one thing in common: they attempt to bring socio-legal studies scholarship out of the university onto the street and into the flow of everyday life. Everyday life is not an altogether new addition to the critical framework of Marxist and post-Marxist thought. Since it was introduced by the French theorist Henri Lefèbvre (Critique de la vie quotidienne I, 1947; The Critique of Everyday Life, 1991), the critique of everyday life gradually took the form of a steady response to the continuing endurance of late capitalism and the absorption of formerly radical elements of society within capitalism’s logic of containment. In this context, I will try to illuminate how some of the key developments in the field of socio-legal studies in effect emulated this strategy in their redefinition of the work to be done under the aegis of the study of law.

Before proceeding with this observation, however, I will first reintroduce the basic premises of a key intervention in this area: Agnes Heller’s work on everyday life. Heller’s writings illuminate the integrative tendencies of the all-encompassing systems of both capitalism and real socialism during the Cold War years (Canefe 1998). Though Heller’s contributions to social theory range across numerous disciplines, from sociology to literary theory and political philosophy, her use of the phrase “prism of alienation” specifically refers to the act of chronicling totalitarianism and grounded resistance to it. While Heller’s “The Marxist Theory of Revolution and the Revolution of Everyday Life” touches on numerous issues that confronted the radical political movements of the late 1960s, its most enduring aspect is the author’s focus on the phenomenology of personhood in the context of systemic alienation. Yearning for a radical restructuring of everyday life, the human subject of Heller’s critique is a particularistic person in that her subjectivity persists in abstraction from the totality of everyday life (Heller 2015). Heller further argues that the fetish character of everyday life is concomitant with the person’s incapacity to relate to herself in her uniqueness and thus feels alienation from her subjectivity. The result is a social agent geared exclusively toward self-preservation who seeks only what serves to propagate herself and her perceived needs. In contrast to this “particular” person, Heller offers us the possibility of a genuine individual who is characterized by the distance she is able to assume between herself and her particular needs, motives, and desires. By appropriating higher-level values within the constellation of her everyday life, the individual is then able to decipher, resist, and remake the demands placed upon her by the socio-political system that embraces her existence (2015). She thus strives to consciously choose what she does, a strategy that in turn leads to the defetishization of everyday life.

Crucially for Heller, individual self-consciousness and morality cannot emerge in isolation from the community. The individual is able to transcend her particularistic identification with conventions via her participation in the conscious construction of human relationships constituted around shared interests and norms. In other words, the political and economic transformation of society alone, Heller concludes, is insufficient to bring about the end of the existing society and its oppressive makeup. It must be accompanied by the revolution of everyday life, which in her view is inseparable from the praxis of authentic community formation. Suffice to say, social movements scholars, particularly those studying the decentralized and radical anarchistic elements of these movements, have long indicated the emergence of prefigurative politics to transcend law’s violent foundations. In this regard, Heller is accompanied by a long tradition of anarchist thought. Assessing new possibilities for the construction of radical alternatives within and against global capitalism, many elements of the “new” social movements have taken a turn away from a universalizing conception of social change that is characteristic of the hegemonic logic they developed within. Instead, these activist currents are driven by an “anarchist logic of affinity,” which is defined as the possibility of moving away from a politics of demand and response and into the territory of asking unanswerable questions if one remains within the system (Graber 2002).

In summary, according to Heller’s take on everyday life, the community is always present. The particularistic individual can live in a world of mediated relationships conceived as quasi-transcendent and at least partially cut off from the integrated totalities into which she was born. In contradistinction, the new individual has the capacity to defetishize the world. In this sense, Heller’s critique of everyday life transcends the concrete political agendas touted by many of the movements that were in force during the latter half of the twentieth century, at the time of her writing this particular treatise. Though the possibilities facing contemporary political movements differ significantly from those that Heller confronted, her insight into the structures of conformity retains its power and relevance well into the twenty-first century. Law is no exception in this regard. The professionalization, commodification, commercialization, and ideological uses of the law are supported by the general milieu of egoism, utility, and self-interest, the pillars defining Heller’s particular individual. Her reconstruction of the links between self-interest and social conformity gives a clear indication of the consequences engendered by the continued hegemony of our alienated system of values, including the law.

Heller’s critique of everyday life is both wide-ranging in scope and subtle in nuance. “The Marxist Theory of Revolution and the Revolution of Everyday Life” (Heller 1970) should indeed be regarded as an illuminating introduction for a substantive critique of the law. As I have discussed in the previous section, the overall critique offered by the socio-legal studies perspective focuses on the problems associated with the analytic separation of law and society, law and politics, law and history, and so on, attempting to bring the critical study of the law into each of these contexts. And yet, often resorting to an instrumentalist methodology, law, legality, and judicial systems have also been treated without a systematic consideration of the socio-economic underpinnings of the very definition of justice that is dominant in a given context. Furthermore, there remains a prevalent presence of the correctionalist impulse in studies on law leading to the prima facie interpretation of legal systems via hypostatization of the law, continuing to separate law from its actual socio-political context, a.k.a. Heller’s everyday life.

No doubt, socio-legal studies’ overall perspective on law embodies a heterogeneous, interdisciplinary approach. While sharing a keen interest in law as a socially constructed and politically sustained phenomenon, both shaping and being shaped by society, the field is keen on shedding light on law’s violence. However, I would argue that its drawing on different epistemological and methodological foundations has led to risk-laden divisions and bifurcations in the field as well as obstruction of the overall view of law in the history of making and remaking capitalism and its permeation in everyday life. We must never lose sight of the fact that the relationship between law and violence remains paradoxically structured: law is supposedly the opposite of violence, since legal forms of decision-making are intent on disrupting the spell of violence while generating more violence. At the same time, law itself is a kind of structural violence, since it imposes a judgment that determines the fate of its subjects and follows them like a curse. Socio-legal studies’ offerings of social and political inquiry provide a useful conceptual link between doctrinal methods and non-legal methodologies of analyzing, understanding, and contextualizing the law. Although most socio-legal studies work involves case-based, in-depth analyses of specific problems, the field is also highly sensitive and responsive to normative questions and power relationships rather than the focus being on finding immediate pragmatic solutions. Still, I would argue that for socio-legal scholarship to fulfill its full promise, it needs to stand closer to larger critiques of everyday life and violence as embodied in the work of thinkers such as Agnes Heller, among others (Sarat and Kearns 2009). In this regard, Heller’s take on everyday life could be read as a step forward toward bringing socio-legal studies scholarship into the centre of the sociality, historicity, and politics it declares to be a part of.

Conclusion

In his introductory essay “Ghosts of Law and Humanities,” Marett Leiboff (2012) teases out the ghosts of the law and humanities past to decipher the pattern of the relationship between these two fields. He cautiously asks whether it is the case that law has forgotten about its past and has created an imagined present for itself in order to manufacture a relationship with the humanities. If law attempted to do so while dissociating the “human” from humanities, the end result would no doubt be violent. The intersections and interdisciplinarity that constitute and shape the humanities in their broadest conceptions—of the human, of the civic, the politics, and the community—might end up missing from a law-and-humanities-combined future too keen on the legal side of things.

But there is another question that really remains baffling, despite all the riches offered by the rich traditions of socio-legal studies: Why do people believe that violence is acceptable if it is legal? Normative beliefs about the acceptability of violence to achieve social control and social change indicate that deliverance of procedural justice is strongly correlated with law’s legitimacy and that positive judgments about law’s legitimacy are associated with social justice (Jackson et al. 2013). However, legitimacy has an additional, hitherto unrecognized, empirical property—it is constitutive of the belief that the law monopolizes the rightful use of force in society. Certainty and uncertainty undoubtedly intersect in the case of challenges and injustices created or protected by the law. For instance, settler’s entitlement to Indigenous lands has been constructed in past colonial and current national laws, land policies, and ideologies as a certainty (Mackey 2014). Though one persistent characteristic of settler colonialism is settler certainty and entitlement, decolonization—especially in the area of jurisprudence—means embracing this certainty as uncertainty. Many of the examples discussed in the above pages concerning interdisciplinary interventions of socio-legal studies canon reveal something similar in nature: the creation of uncertainties where law and legality once stood as epitomes of certainty.

As a case in point, immigration judges of states with a British settler-colonial background (Canada, the United States, and Australia) regularly make consequential decisions that fundamentally affect the basic life chances of thousands of non-citizens and their family members every year. Yet until recently, we knew very little about how immigration judges make these decisions, including decisions about whether to release or detain non-citizens pending the completion of their immigration cases. Working on long-term immigrant detainees, socio-legal scholars began to analyze judicial decision-making in immigration bond hearings, and their findings reveal many an undercurrent gone unnoticed until then (Rehaag 2009; Ryo 2016). These reveal that there are wide variations in the average bond grant rates and bond amount decisions among judges. If so, where is the certainty of law? It appears that the detainees’ prior criminal history is the only significant legally relevant factor in both the grant/deny and bond amount decisions among other possible relevant factors. In other words, immigration courts might claim to be exercising crime control through administrative proceedings, which begs further questions about the cross-sectionality of administrative law, race, gender, class, and status. Law must be put in context again and again to make sense of this normalized set of aberrant decisions.

And yet, studying law in “social context” is never enough. The concept of embeddedness defined as such is imprecise and inadequate (Cotterrell 2013b). Socio-legal scholarship must also be apt in addressing the moral-political concerns that its methodologies reflect (McCann 2014). In this sense, now is a propitious time to renew the dialogue between socio-legal studies scholarship and other fields of analysis and work attending to politics, culture, society, economics, and history. Relational work has an enormous impact on the outcomes of rethinking the relationship between law and all other spheres of human sociality (Block 2013). Devotion to relationality must be reinvigorated. Overall, the socio-legal study of the law is an investigation into both a set of ideals in terms of treating law and legality as normative questions and a set of practices in terms of the rule of law being considered as praxis. Studying the law involves understanding the contingent nature of its ideals as well as investigating the actual work that lawyers, judges, state officials, aid workers, activists, advocacy groups, and others do in specific legal contexts. These overlapping layers of the study of the law provides socio-legal studies its distinct framework with tools for understanding how we experience institutional power and respond to or refute it. Indeed, reviewing research on the politics of law, law and social movements, law and inequality, and law and social change allows us to examine the conditions under which legal institutions could potentially promote inequality-reducing structural social change in late capitalism (Stryker 2007). Law induces social change through a combination of adaptation to legal structures, cultural-meaning making and institutional diffusion, and political mobilization and counter-mobilization. For instance, substantive and effects-oriented administrative, adjudicative, and organizational interpretations of welfare legislation maximize inequality reduction, whereas procedural interpretations do the opposite. These interpretations are most likely to be achieved through a combination of collective mobilization for strategic litigation in conjunction with sustained political mobilization from below and direct involvement in implementation and active monitoring of the law. This is not to negate law’s propensity to violence but to underline its potential uses to create forms of anti-systemic violence.

This chapter examined some of the more recent frames of analysis that socio-legal studies scholars use to understand the law in context. As discussed above, across the field, critical exploration of issues ranging from defining/redefining justice, ethics, law, truth-telling, and responsibility has been a common trend since the 1980s. These developments are significant in light of the violent foundational histories of the states and societies known today. Colonial and post-colonial quests for supremacy, racial purity, and accumulation of property have been facilitated by oppressive exercises of institutional power and its most pristine expression: the law. The trauma that has arisen from past oppressive exercises of legality being used as a shield for unjust practices and the manner in which legal positivism and formalist methodology attempt to maintain privilege at the expense of the multiple others of the polity clearly demonstrate the inherent tensions pertaining to law and its societal legitimacy. Socio-legal studies operates in the midst of ongoing injustices being committed against oppressed and marginalized groups. In this context, investigating the role that the law plays in facilitating and formalizing systemic violence against groups who are targeted as undesirable and the manner in which the past continues to permeate the present is of paramount importance. However, in order to do so, socio-legal studies must approach legal consciousness not just as a theoretical concept or topic of research but as an inherent aspect of legal hegemony, particularly in relation to how the law sustains its institutional power despite persistent gaps between the letter of the law and the law in action. In order to understand why people acquiesce to a legal system that, despite its promises of equal treatment, systematically reproduces inequality, we must take a closer look at the kind of critique advanced by Agnes Heller regarding the kind of politics of everyday life capitalism dictates and its alternative formulations. In this sense, recent studies in the field have both broadened and narrowed the enterprise’s overall reach. Rather than explaining how the different experiences of law become synthesized into systemic behavior, the literature often tracks what particular individuals, groups, or communities do in reaction to the law. As long as the relationship among legal consciousness, ideology, and hegemony remains unexplained, socio-legal studies runs the risk of falling short of developing into a wholesome area of sustained substantive critical interventions.

References