LAW IN EVERYDAY LIFE is the third volume in the Amherst Series in Law, Jurisprudence, and Social Thought. In the words
of the series' editors, the first two volumes "surveyed the majesty and monstrosity of law and speculated about its future and its
fate." (1). This collection of essays focuses on something more mundane, everyday life. The reason for this focus, however, is
anything but mundane. Editors Sarat and Kearns have an ambitious and daring purpose in mind -- challenging what they see as the
prevailing view of the nature of law and arguing for a new kind of empirical legal scholarship with everyday life at its theoretical
core. At its heart, theirs is an epistemological challenge to much of contemporary social science theory and research.
The book is a collection of seven rather different essays that may make some readers grumble and others cheer depending on the
reader's political perspective and methodological proclivities. Regardless, each piece should be read on at least two levels: first, in
terms of what they say about the connection between the everyday and law; and second, in terms of their styles of or approaches
to inquiry. So read, these essays will take the reader to the very edge of contemporary thinking on legal scholarship, challenging
him or her to think critically about matters usually taken for granted -- the nature of law itself and what constitutes an appropriate
mode of inquiry in legal studies.
The theoretical tone is set by the first, and most important, essay in the collection, written by Sarat and Kearns: "Beyond the Great
Divide: Forms of Legal Scholarship and Everyday Life." It is a critique of the predominant view of the nature of law found in
empirical legal studies and the two opposing approaches to studying legal phenomena -- the great divide. The predominant view of
law they call the "law-first perspective." Grounded in legal positivism, it presumes there is an entity out there called law which is a
product of the state and operates ON society. Underlying it "is the unargued postulate that law's story can be told in terms of the
effects of legal doctrine or practices on a relatively stable, placid, nonlegal 'other.'" (56).
The two opposing approaches to studying legal phenomena Sarat and Kearns call instrumentalism and "constitutivism." Both share
the law-first perspective, but here the agreement apparently ends for each sees law working in very different ways on society.
Accordingly, instrumentalism and constitutivism offer different logics for studying legal phenomena. Instrumentalism "posits a
relatively sharp distinction between legal standards, on the one hand, and nonlegal human activities, on the other. It then explores
the effects of the former on the later." (21-22).
In contrast, constitutivism says "social life is run through with law, so much so that the relevant category for the scholar is not the
external one of causality...but the internal one of meaning." (22) From this view, law shapes society from the inside out --
providing the
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categories making social life seem natural, normal, cohesive, and coherent (22). Law is ubiquitous, it has "colonized our souls." (29)
The question for legal scholarship, then, is how law influences meaning. In finding an answer constitutivism starts with "a law, a
body of laws, or a set of legal practices [and the] material itself is subjected to a kind of 'deep reading,' to adduce the underlying
structures and meanings these materials contain or imply for the persons whose lives they govern." (41)
Sarat and Kearns argue that only by bridging the great divide between these two approaches will we be able to capture the
richness and complexity of the interactions of the legal and the everyday world in which people live and act -- and where they
actually experience the legal. Successfully bridging the divide requires the abandonment of the law-first perspective. Instead, we
should think of law "as continuously shaped and reshaped by the ways it is used, even as law's constitutive power constrains
patterns of usage. Law in everyday life is, in this sense, both constitutive and instrumental." (55) So viewed, the nature of law is
contingent because it operates on and is experienced in settings that are not inert and that vary. Everyday life is a lively,
normatively resourceful arena; and while it is powerfully shaped by law, the law itself deeply depends on the normative resources
of this arena.
This alternative view of the nature of law requires its own approach to the study of legal phenomena, one that Sarat and Kearns
characterize as being paradoxical. They argue that "scholarship on law in everyday life should abandon the law-first perspective
and should proceed, paradoxically, with its eye not on law, but on events or practices that seem on the face of things, removed
from the law, or at least not dominated by law from the outset." (55). Here is their larger purpose, "to evoke a new kind of legal
scholarship, one that might finally abandon the limiting (and we think, distorting) perspectives of both the instrumental and
constitutive views." (57, fn.129). It would be empirical in character, "if by this one means [being] grounded in extensive
observations, rigorously assembled -- and imaginatively 'read,' of course." (57) In short, it will be more qualitative than quantitative,
involving the detailed observation of the practice of everyday life and law WITHIN it. Sarat and Kearns argue for "thickly
described" accounts of everyday life -- studies that are intensive rather than extensive. Contrary to most mainline social science,
generalization is not the goal; rather studies "must describe the world of the quotidian in its singularity rather than assimilating it to
general categories." (60)
Two of the remaining six essays fit comfortably within Sarat and Kearns' vision of a new legal scholarship and show its promise
and utility: Hendrik Hartog's "Abigail Bailey's Coverture: Law in a Married Woman's Consciousness" and David Engel's "Law in
the Domains of Everyday Life: The Construction of Community and Difference." Hartog's essay takes the idea of the everyday to
its most fundamental level -- a single person. It is a stunning and elegant analysis of the memoirs of Abigail Bailey, who lived
during the eighteenth century in New Hampshire. The bulk of the memoirs details Abigail's struggle to separate herself from a
violent husband after she learned that he had
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sexually abused one of their daughters. Hartog is interested in the role legal structures played in the life and identity of a married
woman living at this time. He uses the memoirs to see, first, how Abigail, a deeply religious and conservative woman, broke the
habit of wifely submission and freed herself from her husband; and, second, what law had to do with this process. (66)
Abigail's memoirs show that the law was not the central normative structure in her life; religion was -- eighteenth century
evangelical Christianity. While the nature of her consciousness was not determined by law, Hartog shows that she relied heavily
on the law because it provided tools she could use in her struggle. In freeing herself from her husband Abigail bargained in the
shadow of law, a law that "was a complex and contradictory structure: experienced as an external control and constraint,
reconstructed in conversations and arguments, intertwined in significant tension with religious beliefs and norms." (107) While
always present, Hartog concludes that law was "not the most important determinant of her moral situation." (107)
Engel's topic is quite different and more contemporary -- the interactions of children with disabilities and their families on the one
hand and the public school system on the other, and the role law may play in those interactions. The essay draws from a larger
study of children with physical disabilities involving "(a)pproximately 140 interviews with parents -- and in many cases with the
children themselves -- [that] took place over a fifteen-month period in urban, suburban, and rural settings in western New York."
(139, fn,34) Its importance for this volume, however, lies in Engel's discussion of a framework for actually doing the kind of
research Sarat and Kearns envision.
How do we locate the everyday? Engel offers the concept of the domain, which draws from the often used idea of the
semi-autonomous social field -- a social locale with the capacity to generate its own rules and induce compliance. (127) A domain
is an arena in which people's day-to-day interactions surrounding common issues take place. These interactions "necessitate the
formulation of a common language of ideas about the individual and the group, about time and place, about right and wrong." (127)
This common language creates a sense within people that they are in a distinctive social arena with its own version of common
sense. We study law by studying domains and the way law may help structure a domain as well as its use within the domain. To
demonstrate this Engel reports on some of his findings empha- sizing four aspects of domains: the actors, the sense of time and
place, the sense of community, and norms. Engel suggests that focusing on these aspects when studying domains offers the
opportunity for generalization about law across domains, thereby avoiding a pattern of analyses of the everyday and law always
ending in a mushy inconclusiveness. (166)
The other four essays in the volume present, in effect, fundamental challenges to Sarat and Kearns' theoretical argument.
Catherine MacKinnon's essay, "Reflections on Law in the Everyday Life of Women," offers a political challenge. It takes an
aggressively law-first perspective. She argues that law
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matters. It makes and maintains the everyday world in which women live, but law does little or nothing for them because they
have no say in its making or its application. Everyday life is not a lively, normatively resourceful arena that interacts with law.
Instead, it is an arena in which women are prisoners and victims of the law.
MacKinnon's essay is part of her larger argument for fundamental change in society, and she has a perverse confidence that law
can be an instrument of change if it is based on the reality of women's everyday lives. This will require women having the power
to make law, and this ultimately is her inter- est. Indeed, she has little patience with the controversy with which Sarat and Kearns
are concerned. She says bluntly: "there is a big controversy over whether law matters to life and whether those who care about
everyday life should care about law at all. Does life make law or does law make life, they wonder. When men make both, and you
are a woman, the distinction may not count for much" (121)
Patricia Williams essay "Law and Everyday Life" is a narrative written in the first person in which she shares her thoughts on
issues related to her interest in the control of women's minds and bodies by the criminal justice system and other social institutions.
It has a breezy, witty, but at times biting quality to it as she shares her thoughts on these issues while riding in cab through
Washington, D.C., passing through the grocery store check-out, traveling with a group of critical legal studies scholars in Eastern
Europe, and watching daytime televi- sion talk shows. She is not interested in doing the kind of rigorous, empirical research Sarat
and Kearns describe. Her interest, too, is political -- dissecting the images and ideas emerging from legal thinking regarding
women's bodies and minds. In her view law is not a contingent, perhaps marginal, phenomena varying from one locale or domain
to another. Rather, it is a powerful ideological force that shapes the way in which our culture conceptualizes women's bodies,
minds, and experiences. The everyday is just another word for the culture on which the law operates to imprison women. The
inclusion of Williams' personal narrative in this volume poses another challenge -- one asking what counts as scholarship in legal
studies and about the primacy of any kind of logic of inquiry. Ideological critique via personal reflection is a direct challenge to
social scientific logic, including the kind outlined by Sarat and Kearns. David Kennedy's essay "Autumn Weekends: An Essay on
Law and Everyday Life" raises this same challenge. It too is written as a first person narrative and traces his travels and thoughts
over two weekends that took him to two different meetings in Europe: the establishment of the International Jurists Platform on
East Timor in Lisbon and a meeting of the Academic Council of the Royal Complutense College in Madrid. An expert on
international law at Harvard, Kennedy was invited to the first meeting because of his expertise and to the second as a
representative of Harvard University which has a working relationship with the Royal College.
In-between reflections on his travels, Kennedy does talk about the intellectual concern over the relationship between the everyday
and law. In doing so, he makes a
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wicked theoretical challenge to the everyday using his two trips as allegories. The tone of this discussion runs from ambivalence to
cynicism. He says that thinking about the relationship between the everyday and law causes vertigo -- "an amusing delirium" (214)
that comes from continually going around and around the possible ways in which the everyday and law might be related and
finding there is no stable answer. The concern about the nature of this relationship is nothing new and Kennedy places it in the
context of a longstanding rebellion against the "clean separation of norm and fact" (214) He wonders if "(a)ssembling a book on
law and everyday life may be no more than a naive rotation through the standard modernist moves." (214)
Underlying the concern with the everyday, in Kennedy's view, is advocacy for social and political change. Implicit is a law-first
perspective and a vision of law as an instrument of change. He says that "the everyday still sounds the siren call of a new site for
legal scholarship: someplace hip, passionate, private, personal, the privilege of purple prose. Concern for the everyday remains a
sign for good liberal commitment to laws relevant to the everyman... And what's wrong if legal scholars want a shot of pragmatic
earnestness in their aging, but still humane, project to place law in the service of social change? A harmless little charge of
meaning in the old Warren Court dream, law gone to the everyday." (214-15) While harmless, Kennedy finds this activism and
pragmatic earnestness, this attempt to redeem law, tawdry and says so (225) A cynical description of his experiences at the
Lisbon conference and its call for legal activism in behest of East Timor is an allegory on the tawdriness. In contrast, the
description of his trip to Madrid is meant to represent a much more cosmopolitan or global perspective in which it makes no sense
to talk in terms of true, autonomous realms of an authentic everyday. Such realms no longer exist; all that exist are the
representations of such realms for tourist consumption (real and allegorical).
The volume's final essay leaves the avant-garde and presents a straightforward theoretical argument. George Marcus, in the
ominously titled "Mass Toxic Torts and the End of Everyday Life," argues, in effect, against the radical empiricism of Sarat and
Kearns and their idea of studying the literal world of the everyday. The reason is simple -- the "authenticity of dailiness" (60) is a
chimera. The autonomous, normatively lively everyday does not exist because the everyday is powerfully but indirectly shaped by
law and other expert systems of state and economy in the postmodern society. These expert systems have collapsed the global
and the local, obliterating the distinction between the two -- the end of everyday life and the social theories extolling it.
Given the demise of both the everyday and social theory, Marcus boldly asserts that legal scholarship in a postmodern society must
turn to the examination of law as a frontline dis- course and its changing constructions of the everyday. Here we will find an
account of the changing nature of society. Marcus uses mass toxic torts, the Agent Orange case in particular, as a demonstration
of his argument. Agent Orange tests the limits of tort law's traditional
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assumptions regarding the everyday. He says the case "obliter- ates the situated everyday grounds as the assumed 'scene' of tort
cases. It challenges the theorist of law and society to rethink the everyday as something other than a concrete, person-to-person
situation, and to see it as a MASS condition with a complex ecology of effects (as in the long-term and deep effects of toxicity, the
apocalyptic harm wrought by the complex processes of modernity). The routine, ordinary, and quotidian is to be understood as
much in global as in local terms." (261-62) Abandoning theory for the pragmatic discourse of law, scholarship should be a critique
of ideology -- "reading for quiet, but radical transformations in the understanding of social and cul- tural phenomena." (268-69)
Here LAW IN EVERYDAY LIFE ends, with no attempt to tame the unruly voices in these essays. The book takes the reader to
the very edge of contemporary, civilized thinking on legal studies -- some may say it goes over the edge. But perhaps we need to
take a walk on the wild side occasionally in order to look back at the research enterprise and its familiar assumptions with a more
critical eye.
