Legal consciousness: some observations

An important article by Dave Cowen (2004) outlining the latest thinking on legal consciousness. A fascinating study of unsuccessful homeless applicants reveals very mixed perceptions of the law.

Cowan’s study of unsuccessful welfare applicants under homelessness legislation provides a useful insight into legal consciousness. The study was designed to assess why people do, and do not challenge welfare decisions. Interviewees were invited to discuss their approach to and feelings about the legal process of their applications, as well as their decision whether or not to challenge the bureaucratic assessment.

Read the article Legal consciousness: some observations (260 KB)

The data suggests that homeless applicants perceive the law in a number of ways. Some applicants saw the law as a barrier to be surmounted; others regarded it as authoritative, inflexible, and final. Some saw the law as just, others regarded it as unequal. Some applicants saw it as empowering, others as oppressive and while some felt they understood the legal rules of entitlement, many found them bewildering.

The data was interpreted around three themes – dignity, the making sense of decisions, and the ‘spaces of production’ of legal consciousness. The notion of space is used to develop the argument that legal consciousness can be situated within the particularity of a relationship.

Interviewees felt that their dignity was undermined by the failure of the bureaucracy to involve them in the decision-making process, as well as the time it took to handle the application. Cowan argues that these values are what the interviewees want from law – it is about their aspirations for law and legal values.

In an earlier study, Cowan noted how the legislation, rather than empowering homeless people, requires the ‘oppression of the homeless by making moral judgments, not about their housing needs, but about why the homeless become homeless in the first place’. This is reflected in the way the interviewees perceive the process – their felt need is an irrelevance, what matters is somebody else’s judgement about their needs.

The study looked at how the interviewees where able to make sense of decisions. Some applicants regarded themselves as marginal to the decision, some looked at how others were treated and some saw the law being applied in a neutral fashion. The focus was on the official law – not necessarily as it appears in the books, but as the interviewees received and perceived it.

Accessing a lawyer to help them against the decision was viewed as an assertion of power/resistance to the bureaucracy, as well as recognition of their own powerlessness. Cowan comments that this however created an additional intermediary layer and emphasised the advice-seekers lack of resources.

Finally the study looked to two particular ‘spaces’ in which legal consciousness was produced. Cowen introduces what he calls ‘interaction perspective’ – the theory that legal consciousness takes places during the interactions between the welfare applicant and the bureaucrat. He suggests that this interaction can influence the applicant’s view of the nature of the process, and the value of challenging the decision. The two main ‘spaces of production’ were interview styles and decision-letters. These contributed to how the interviewees saw the law working.

Interview styles operated to depersonalise the application process, which in turn created a sense of not being treated with dignity and respect. Decision letters were also depersonalised and were often misread, ‘partly because of the way in which they were written’ and partly because they were formulated not for the applicant, but for their legal adviser. They were also always written in English.

Government has suggested that applicants have the relevant law at the forefront of their minds when they are applying for housing. This study of legal consciousness challenges these assertions.

Note on legal consciousness studies

There have been relatively few socio-legal studies on legal consciousness in the UK compared to the US. Two of the leading thinkers in the US are Ewick and Silbey. An early model of legal consciousness – ‘before the law’ – was a ‘dehumanising vision of legality’ in which the law is separated off from society and exists independently. This was later developed into the notion of legal consciousness being a cultural practice – produced and revealed by what people do as well as what they say.

‘After Legal Consciousness’ by Susan Silbey was published in 2005. Ms Silbey questions why people acquiesce to a legal system that, despite its promises of equal treatment, systematically reproduces inequality? Ms Silbey holds that legal consciousness should not be understood in relation to external power and internal will, but in relation to the material inequality in our social life and the cultural terms of our understanding. ‘Law is a basic, constitutive attribute of our social consciousness. It is a particular way of organising meaning and force, and it is out of this that both law in action and law on the books proceed.

Published: 24 January 2017

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