1 For this recent revival of anthropological and sociological studies of legal culture and legal consciousness, in addition to the works discussed below, see Chase, Anthony, “Toward a Legal Theory of Popular Culture,” 1986 Wis. L. Rev. 527–69 (1986); John M. Conley & William O'Barr, Rules versus Relationships: The Ethnograpghy of Legal Discourse (Chicago: University of Chicago Press, 1990); David M. Engel, “Law in the Domain of Everyday Life: The Construction of Community and Difference,” in Austin Sarat & Thomas Kearns, eds., Law in Everyday Life 123–70 (Ann Arbor: University of Michigan Press, 1993); Patricia Ewick & Susan S. Silbey, “Conformity, Contestation, and Resistance: An Account of Legal Consciousness,” 26 New Eng. L. Rev. 731 (1992); Stewart Macaulay, “Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sport,” 21 Law & Soc'y Rev. 185 (1987); Robert Post, ed., Law and the Order of Culture (Berkeley: University of California Press, 1991); Steve Redhead, Unpopular Cultures: The Birth of Law and Popular Culture (Manchester: Manchester University Press, 1995); Margaret R. Somers, “Citizensip and the Place of the Public Sphere: Law, Community, and Political Culture in the Transition to Democracy,” 58 Am. Soc. Rev. 587 (1993); Barbara Yngvesson, “Inventing Law in Local Settings: Rethinking Popular Legal Culture,” 98 Yale L. J. 1689 (1989).Google Scholar

2 It may not be entirely cynical to say that determining whether research involves the ethonographic presence of the observer may be the only thing left that distinguishes “anthropological” from “sociological” research.Google Scholar

3 Austin Sarat & Thomas Kearns, eds., Law in Everyday Life 2 (Ann Arbor: University of Michigan Press, 1993) (“Sarat & Kearns, “Everyday Life”). I would take issue with this formulation that “legal rules are used in daily life” since it treats rules as already existing entities that are used or, for that matter, not used in daily life. We might more fruitfully employ the idea of legal elements that do not have their source in the productivity of legislatures or the pronouncements of judges: elements that are combined in ways that breach the idea of law as a closed discursive formation, mixed with elements gleaned from popular justice, religious precepts and ethical sentiments.Google Scholar

4 Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge: Harvard University Press, 1991).Google Scholar

5 Carol J. Greenhouse, Praying for Justice: Faith Order and Community in an American Town (Ithaca, N. Y.: Cornell University Press, 1986) (“Greenhouse, Praying for Justice”). Similar themes about the role of legal consciousness not reducible to formal legal rules are found in Carol J. Greenhouse, Barbara Yngvesson, & David M. Engel, Law and Community in Three American Towns (Ithaca, N. Y.: Cornell University Press, 1994) (“Greenhouse et al., Law and Community”); Mindie Lazarus-Black & Susan F. Hirsch, eds., Contested States: Law, Hegemony and Resistance (New York: Routledge, 1994); Sally E. Merry, Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans (Chicago: University of Chicago Press, 1990).Google Scholar

6 Karl N. Llewellyn & Adamson E. Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941).Google Scholar

7 Karl N. Llewellyn, The Bramble Bush: On Out Law and Its Study (New York: Oceana Publications, 1930).Google Scholar

8 Abraham Blumberg, “The Practice of Law as a Confidence Game,” 1 Law & Soc'y Rev. 15 (1967).CrossRefGoogle Scholar

9 Talcott Parsons, “A Sociologist Looks at the Legal Profession,”in T. Parsons, Essays in Sociological Theory (Glencoe, Ill.: Free Press, 1954).Google Scholar

10 The Amherst Seminar has been a far from cohesive trend. Starting from a concern with law as ideology, this body of work has increasingly redefined its focus toward popular legal consciousness (Christine Harrington, Shadow Justice: The Ideology and Institutionalization of Alternatives to Courts (Westport, Conn.: Greenwood Press, 1985); Alan Hunt, “The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law,” 19 Law & Soc'y Rev. 101 (1985); Sally E. Merry, “Culture, Power, and the Discourse of Law,” 37 N. Y. L. School L. Rev. 209 (1992); Boaventura de Sousa Santos, “On Modes of Production of Law and Social Power,” 13 Int'l J. Soc. L. 299 (1985); Sarat & Kearns, Everyday Life; Susan Silbey & Austin Sarat, “Critical Traditions in Law and Society Research,” 21 Law & Soc'y Rev. 165 (1987); Colin Sumner, Reading Ideologies: An Investigation into the Marxist Theory of Ideology and Law (London: Academic Press, 1979)). Trubek and Esser err in in posing a homogeneity on this body of work in advancing criticisms that are more pertinent to the wider law and society movement (David Trubek & John Esser, “Critical Empiricism’ in American Legal Studies: Paradox, Program or Pandora's Box,” 14 Law & Soc. Inquiry 3 (1989)).Google Scholar

11 Stewart Macaulay, “Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sport,” 21 Law & Soc'y Rev. 185 (1987).Google Scholar

12 In order to present the problem of the distribution of power as sharply as possible I leave aside the important objection that to talk about “how much” power may already a retreat toward a zero sum conception of power. I have tried to address this difficulty elsewhere, avoiding any quantification of power, by focusing on the “condensation” or “concentration” of power. Alan Hunt, “Foucault's Expulsion of Law: Toward a Retrieval,” 17 Law & Soc. Inquiry 1 (1992).Google Scholar

13 Michel Foucault, The History of Sexuality: Vol. 1, An Introduction 95 (New York: Pantheon Books, 1978).Google Scholar

14 James Scott has gone a long way to flesh the abstract reactive concept of resistance in the discourses and practices of subordinate classes, but it remains trapped within the power/ resistance dichotomy. See Scott, James C., The Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven, Conn.: Yale University Press, 1985); id., Domination and the Arts of Resistance: Hidden Transcripts (New Haven, Conn.: Yale University Press, 1990).Google Scholar

15 Except in the limit condition of “revolution” where an existing power is overturned and the power is thereby transferred to the previuously subordinate category.Google Scholar

16 Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field,” 38 Hastings L. J. 805 (1987).Google Scholar

17 Mariana Valverde, “Moral Capital,” 9 Canadian J. L. & Soc'y 213 (1994).Google Scholar

18 I will assume that this absence of elaboration is because of the extensive discussion of the “paradox of community” in the parallel collaborative book (Greenhouse et al., Law and Community) and that her position is as set out there.Google Scholar

19 This binarism has received a variety of different treatments. For example, Cover distinguished between a “paideic legal order” which espouses the “jurisgenerative” or lawmaking capacity of autonomous communities and an “imperial” legal order that is “jurispathic” concerned to maintain a unitary order. Robert Cover, “Nomos and Narrative,” 97 Harv. L. Rev. 4, 4 (1983). In somewhat different terms this same idea is captured by Roger Cotterrell who contrasts two competing images of “society” that manifest themselves in law: one “imperium” is top-down model of legitimate authority governing subjects, while “community” stresses shared values, normative consensus. Roger Cotterrell, Law's Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995) (“Cotterrell, Law's Community”).Google Scholar

20 Bruno Latour provides a rigorous exploration of this ambivalence toward modernity, the nostalgic quest for community, with the contention of his title that “we have never been modern.” Bruno Latour, We Have Never Been Modern (Hemel-Hempstead, Eng.: Harvester-Wheatsheaf, 1993).Google Scholar

21 In Britain, in contrast, the concept of “community” plays a much less significant role in legal discourses (Cotterrell, Law's Community). I suggest that this is because “community” is conceived much less holistically, not as a shared normative order but rather as a what I term “fragmented community,” as an expression of social boundaries within populations, in which class, as well as ethnic, religious, and other differentiations, mark out those differences.Google Scholar

22 Greenhouse et al., Law and Community (cited in note 5).Google Scholar

23 Id. at 174.Google Scholar

24 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1983).Google Scholar

25 This absence is not present in all law and community studies; for example, David Engel focuses on insiders and outsiders, while Carol Greenhouse's explicit concern is with with “difference.” David Engel, “The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community,” 18 Law & Soc'y Rev. 551 (1984); Greenhouse, Praying for Justice (cited in note 5).Google Scholar