By Dr Zach Richards
In this blog post, Zach Richards reviews a new book by Marc Hertogh, Nobody’s Law: Legal Consciousness and Legal Alienation in Everyday Life (2018, Palgrave Socio-Legal Studies).
Marc Hertogh’s recent book Nobody’s Law makes a valuable contribution to socio-legal studies of administrative justice. The clear, well-written text published in the Palgrave MacMillan Pivot Series surveys socio-legal legal consciousness literature to compellingly argue that there has been something missing from decades of this research: namely, an acknowledgment of the remoteness of law from many people’s everyday lives. Where legal consciousness literature typically posits that people are either ‘before the law’ (marveling at its grandeur), ‘with the law’ (moving with it strategically for their own or altruistic purposes) or ‘against the law’ (rejecting it for its limitations to achieve a range of personal or social justice outcomes), Hertogh proposes that there is another phenomenon commonly at play that these studies overlook: that for many, the law and its relevance to everyday life simply does not compute. This is an important point and one that undoubtedly takes our understanding of the role of law in individuals’ lives further.
In his analysis, Hertogh takes what he refers to as a ‘secular’ approach to legal consciousness, where legal consciousness is used as an empirical lens rather than a tool for ideological debate. He argues that from this perspective, the law often plays a remote or secondary role in our everyday lives. He refers to a range of well-known studies such as those by Roger Cotterrell and David Engel and Jaruwan Engel that find respectively that ‘legal regulation seems to be more alien with citizens’ experience at the same time that it confronts the experience in more detailed and intimate ways’ and that ‘there has been a general decline of official law in the legal consciousness of ordinary people’. Hertogh takes these earlier studies and locates them in a broader literature and contemporary context to argue that through reviving the concept of alienation, which started to go out of fashion in the 1960s and ’70s, we can begin to understand recent developments in law and society that place law on the margins for many individuals.
Despite the important progress this overall ambition makes, at one point Hertogh’s description of his own project was a bit confused: he claims that where previous studies have focused on why people turn to law, Hertogh’s project is novel in its exploration of why they turn their back. In truth, previous studies consider the range of reasons why people are either before, with or against the law (including, of course, within that range of possibilities the notion that they are against and in this opposition have turned their back). The true novelty of Hertogh’s project lies in the possibilities inherent in recognising and exploring life outside the law altogether. It is not that individuals have turned their back, but that they don’t realise its significance, notice its contours, or have any opinion or ascribe any function to it – full stop. When articulated more clearly in this manner, this is indeed an exciting project and one that also provides enormous potential for future generations of socio-legal researchers to consider the scope, impacts and effects of life outside law (particularly for the oppressed and marginalised individuals who play no part in writing it). The early work begun in this book can open up a range of questions – particularly, for example, for minority groups and marginalised individuals; the very individuals legal consciousness and administrative justice studies had in mind from the beginning, who live life so peripherally to the justice system that they have no capacity, willingness, ability or access to question or consider the law and its institutions in the first place. Migrants, refugees, LGBTIQ minorities (especially transgender individuals) – are often so displaced and remote from society, for example, that the law is not something they can begin to comprehend in their daily quest for social survival.
Indeed, it is astute that Hertogh applies the concept of legal alienation to revive legal consciousness studies – and future studies might drill deeper into the details of where and when and how this legal alienation occurs and how it differs across different localities, as well as considering broader philosophical questions of causation such as how and why individuals come to dislocate from law or live their lives as legal aliens.
In all, this is a great read and undoubtedly a refreshing step forward for the field. It retains many of the initial concerns of legal consciousness and administrative justice studies but manages to say something distinctly new. It will be exciting to see what further research might develop in this area with the new path Hertogh has paved.
About the author:
Dr Zach Richards is a Law Lecturer and author and recipient of UKAJI’s 2017 New Voices award for contributions to administrative justice studies.
Marc Hertogh, Nobody’s Law: Legal Consciousness and Legal Alienation in Everyday Life (Palgrave Macmillan UK, 2018)