Halliday, Simon; Morgan, Bronwen --- "I Fought the Law and the Law Won? Legal Consciousness and the Critical Imagination" [2013] UNSWLRS 85

Last Updated: 19 December 2013

I Fought the Law and the Law Won? Legal Consciousness and the Critical Imagination

Simon Halliday, University of York

Bronwen Morgan, University of New South Wales



This paper is available for download at Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2350262

Citation

This paper may be referenced as [2013] UNSWLRS 85.

Abstract

The study of legal consciousness within socio-legal studies entails a focus on the ordinary, quotidian and, crucially, almost invisible life of law in society. To study legal consciousness is to study the taken-for-granted and not-immediately-noticeable: the background assumptions about legality which structure and inform everyday thoughts and actions. This article examines legal consciousness through the lens of the cultural theory of Mary Douglas. The application of her grid-group analysis offers important insights into the dimensions along which legal consciousness may vary. In doing so, it sheds light on an under-studied feature of the legal consciousness landscape: collective voices of dissent. We explore, via a secondary data analysis of radical environmental activists, a legal consciousness which expresses particularly clearly a collective rejection of the authority of state law. The analysis reveals a complex and multi-faceted legal consciousness where a rejection of state law may be coupled with a gaming approach towards it for collective aims, and can be fueled by a faith in legality above or beyond state law. It also points to the organizational vulnerability of dissenting collectivism and a corresponding affinity between a legal consciousness of collective dissent and one of fatalism. Our analysis allows us to critique and refine Ewick and Silbey’s influential account of legal consciousness. These analytical and theoretical insights point towards a future research agenda which maintains the legal consciousness tradition of focusing on the structural qualities of law while avoiding the pitfalls of a theory of general legal hegemony.