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Subjects in Spite of Themselves: Legal Consciousness among Working-Class New Englanders

Published online by Cambridge University Press:  27 December 2018

Susan F. Hirsch
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Type
Review Essay
Information
Law & Social Inquiry , Volume 17 , Issue 4 , Fall 1992 , pp. 839 - 857
Copyright
Copyright © American Bar Foundation, 1992 

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References

1 See Moore, Sally Falk, Social Facts and Fabrications: Customary Law on Kilimanjaro,1880-1980 (Cambridge: Cambridge University Press, 1986); Sally Engle Merry, “Legal Pluralism,” 22 Law & Soc'y Rev. 869 (1988); June Starr & Jane Collier, eds., History and Power in the Study of Law: New Directions in Legal Anthropology (Ithaca, N.Y.: Cornell University Press, 1988); Joan Vincent, Anthropology and Politics: Visions, Traditions, and Trends (Tucson: University of Arizona Press, 1990); Laura Nader, Harmony Ideology: Justice and Control in a Zapotec Mountain Village (Stanford, Cal.: Stanford University Press, 1990).Google Scholar

2 See, e.g., Foucault, Michel, Power/Knowledge: Selected Interviews and Other Writings 1972-1977 (New York: Pantheon, 1982) (“Foucault, Power/Knowledge”); Nancy Hartsock, Money, Sex and Power: Toward a Feminist Historical Materialism (New York: Longman, 1983);Nancy Fraser, Unruly Practices: Power, Discourse and Gender in Contemporary Social Theory (Minneapolis: University of Minnesota Press, 1989); Abu-Lughod, Lila, “The Romance of Resistance: Tracing the Transformation of Power through Bedouin Women,” 17 Am. Ethnologist (1990); Jean Comaroff & John Comaroff, Of Revelation and Revolution: Christianity, Colonialism, and Consciousness in South Africa (Chicago: University of Chicago Press, 1991)(“Comaroff & Comaroff, Of Revelationn and Revolution”;).Google Scholar

3 Foucault, Power/Knowledge, quoted in Merry at 202–3 n.1.Google Scholar

4 Herbert Dreyfuss & Paul Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics 184 (Chicago: University of Chicago Press, 1983) (“Dreyfuss & Rabinow, Foucault”;).CrossRefGoogle Scholar

5 See Scott, James, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven, Conn.: Yale University Press, 1985), as cited by Merry. See also more recent discussions in Comaroff & Comaroff, of Revelation and Revolution. Google Scholar

6 Michel Foucault, “The Subject and Power,” in Dreyfuss & Rabinow, Foucault 216.Google Scholar

7 See, e.g., Anzaldua, Gloria, Borderlands/La Frontera (San Francisco: Spinsters/Aunt Lute, 1989); Donna Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature (New York: Routledge, 1991); Gayatri Spivak, In Other Worlds: Essays in Cultural Politics (New York: Routledge, 1988); Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor 95 (Cambridge, Mass.: Harvard University Press, 1991). For other discussions of postmodern subjectivity see, e.g., Susan Bordo, “The Body and the Reproduction of Feminity: A Feminist Appropriation of Foucault,” in Jaggar, Alison M. & Susan Bordo, eds., Power/Body/Knowledge: Feminist Reconstructions of Being and Knowing (New Brunswick, N.J.: Rutgers University Press, 1989); Stuart Hall, “Cultural Identity and Diaspora,” in Jonathan Rutherford, ed., Identity: Community, Culture and Difference (London: Lawrence & Wishart, 1990).Google Scholar

8 See, e.g., Catharine MacKinnon, “Does Sexuality Have a History?”Rev, Michigan Q. 1 (Winter 1991); Jana Sawicki, Disciplining Foucault: Feminism, Power and the Body (New York: Routledge, 1991) (“Sawicki, Disciplining Foucault”;).Google Scholar

9 See, e.g., Irene Diamond & Lee Quinby, eds., Feminism and Foucault: Reflections on Resistance (Boston: Northeastern University Press, 1988); Sawicki, Disciplining Foucault. Google Scholar

10 Sawicki, Disciplining Foucault 26.Google Scholar

11 Several anthropologists have pursued these issues through ethnography, though in very different ways. See, e.g., Comaroff & Comaroff, Of Revelation and Revolution (cited in note 2); Smadar Lavie, The Poetics of Military Occupation: Mzeina Allegories of Bedouin Identity under Israeli and Egyptian Rule (Berkeley: University of California Press, 1991); Dorinne Kondo, Crafting Slues: Power Gender, and Discourses of Identity in a Japanese Workplace (Chicago: University of Chicago Press, 1990).Google Scholar

12 See, e.g., Riley, Denise, “Am I That Name?” Feminism and the Category of “Women” in History (Minneapolis: University of Minnesota Press, 1988).Google Scholar

13 See, e.g., Hicks, Emily, “Cultural Marxism: Nonsynchrony and Feminist Practice, “in Lydia Sargent, ed., Women and Revolution (Boston: South End Press, 1981); Gayatri Spivak with Ellen Rooney, “In a Word,” 1 Differences 124 (1988); Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990).Google Scholar

14 Merry's approach to consciousness draws on the work of John and Jean Comaroff. See Comaroff, Jean, Body of Power, Spirit of Resistance: Culture and History of a South African People (Chicago: University of Chicago Press, 1985); John Comaroff & Jean Comaroff, “The Madman and the Migrant: Work and Labor in the Historical Consciousness of a South African People,” 14 Am. Ethnologist 191 (1987).CrossRefGoogle Scholar

15 Merry notes that the data, from lower criminal courts (Salem and Cambridge),small claims courts (Cambridge), juvenile courts (Cambridge), and mediation programs (Salem and Cambridge), were collected through two research programs with the assistance of various colleagues and students.Google Scholar

16 For a discussion of the case as a unit of analysis in legal anthropology, see John Conley & William M. O'Barr, Rules versus Relationships: The Discourses of Law 29–30 (Chicago: University of Chicago Press, 1990) (“Conley & O'Barr, Rules versus Relationships”).Google Scholar

17 Merry's data indicate that in three Salem neighborhoods, each with about 1,000 residents, the number of cases and mediations annually was between 6 and 25 (at 66).Google Scholar

18 See also Barbara Yngvesson, “Making Law at the Doorway: The Clerk, the Court, and the Construction of Community in a New England Town,” 22 Law & Soc'y Rev. 410(1988).Google Scholar

19 The procedures common in the legal contexts Merry studied include, among others, numerous informal pre hearing discussions, required appearances before a third party, and complex penalties that become more severe if previous agreements are violated(at 34–36).Google Scholar

20 Foucault, Michel, Discipline and Punish: The Birth of the Prison 300, trans. Alan Sheridan (New York: Pantheon, 1979).Google Scholar

21 For a fuller discussion and critique of the concepts “hard-living” and “settled-living” as developed in studies of the American working class, see, as cited in Merry (at 60), Howell, Joseph T., Hard Living on Clay Street: Portrait of Blue-collar Families (Garden City, N.Y.: Anchor/Doubleday Press, 1973); Lillian Rubin, Worlds of Pain: Life in the Working Class Family (New York: Basic Books, 1976).Google Scholar

22 See, e.g., Sacks, Karen, “Toward a Unified Theory of Class, Race and Gender,” 16 Am. Ethnologist 534 (1989); Lynne Segal, Slow Motion: Changing Masculinities, Changing Men(New Brunswick, N.J.: Rutgers University Press, 1990).Google Scholar

23 For cross-cultural examples of women who turn to courts to alter oppressive domestic situations see, e.g., June Starr, “The Role of Turkish Secular Law in Changing the Lives of Rural Muslim Women, 1950–1970,” 23 Law & Soc'y Rev. 497 (1990); Lazarus-Black, Mindie, “Why Women Take Men to Magistrate's Court: Caribbean Kinship Ideology and Law,” 30 Ethnology 119 (1991); Hirsch, Susan F., “Gender and Disputing: Insurgent Voices in Coastal Kenyan Islamic Courts” (Ph.D. diss., Duke University, 1990); Susan Philips, “Tongan Agency in the Legal Gender Regime of Tonga: How Sisters Fare Better than Wives in the Tongan Magistrates' Court” (presented at American Anthropological Association Annual Meeting, Nov. 1991).Google Scholar

24 Legal discourse, generally elaborated by the courts, is about rights and evidence. The discourse of morality appeals to cultural understandings about proper behavior in families and communities, including the maintenance of relationships and the demonstration of respect. Therapeutic discourse, drawing on the language of the helping professions, emphasizes treatment and cure in addressing problems (at 111–16).Google Scholar

25 With respect to methods of discourse analysis and presentation, cf. J. Maxwell Atkinson & Paul Drew, Order in Court: The Organization of Verbal Interaction in Judicial Settings (Atlantic Highlands, N.J.: Humanities Press, 1979); Laurence Goldman, Talk Never Dies: The Language of Huli Disputes (London: Tavistock, 1983); Conley & O'Barr, Rules versus Relationships (cited in note 16); and see generally Donald Brenneis, “Language and Disputing,” 17 Ann. Rev. Anthropology 221 (1988).Google Scholar

26 See also Conley & O'Barr, Rules versus Relationships. Google Scholar

27 Merry's description of abused women who are turned away from court with the advice that they think about their problems morally rather than legally reminded me of Swahili Muslim women I encountered in my own research in Kenya. A Muslim judge told me that he would not treat claims of abuse “legally” until the woman returned to court three times, and other Muslim and secular judges appeared to concur in his approach.Google Scholar

28 Young, Iris, Justice and the Politics of Difference (Princeton, N.J.: Princeton University Press, 1990); see also Sawicki, Disciplining Foucault (cited in note 8); Chantal Mouffe, “Democratic Citizenship and the Political Community,” in Miami Theory Collective, ed., Community at Loose Ends (Minneapolis: University of Minnesota Press).Google Scholar