Challenging legal consciousness: Practice, institutions, and varieties of resistance

Even though the term never appears in the article, “The Oven Bird’s Song” is one of the foundational articles in studies of legal consciousness. Engel did not define the concept in “The Oven Bird’s Song,” even though we could reasonably say that the entire article is about what we have come to recognize as legal consciousness. In the article, Engel analyzes how individual members of a community think about law and legal institutions. The article is also about the things that people did - and didn’t do - to put those beliefs into practice. Engel demonstrated that the community’s value system (to which many individuals subscribed) shaped the way they thought about conflict and even about what an injury was. And in turn, this “mangle” of action and belief created a unique legal environment - what we now refer to as legality: “the meanings, sources of authority and cultural practices that are commonly recognized as legal, regardless of who employs them, or for what purposes.” Even as he laid a foundation for studies of legal consciousness, Engel also anticipated some of the significant debates in that tradition. By analyzing the legal significance of what ordinary people think and do, Engel demonstrated that law is a thread that runs through everyday life. In this chapter, I describe three debates in legal consciousness research and show how reading Engel’s study of Sander County offers a fresh perspective on those debates and poses challenges for those of us working in the field. First, I consider the significance of silence as the practice of legal consciousness, particularly when that silence is wielded by the powerful. Second, context is important. People develop legal consciousness through the institutions they navigate. Thus, legal consciousness is related to the different identities that people develop in different settings. Finally, while law is hegemonic, constructing systems for the powerful in ways that preserve their privilege, people nevertheless draw on legal concepts when trying to resist authority. Thus, I ask whether and what varieties of resistance are made possible through legal consciousness.