Consciousness and Ideology-1-250 PDF

Consciousness and Ideology
The International Library of Essays in Law and Society

Series Editor: Austin Sarat
Titles in the Series:
Law and Religion Law and Social Movements

Gad Barzilai Michael McCann
Police and Policing Law Colonial and Post-Colonial Law
Jeannine Bell Sally Merry
Law and Society Approaches to Cyberspace Social Science in Law
Paul Schiff Berman Elizabeth Mertz
Law and Families Sexuality and Identity
Susan B. Boyd and Helen Rhoades Leslie J Moran
Rhetoric of Law Law and Poverty

Marianne Constable and Felipe Gutterriez Frank Munger
Law in Social Theory Rights
Roger Cotterrell Laura Beth Nielsen
Ethnography and Law Governing Risks
Eve Darian-Smith Pat 0 'Malley
International Law and Society Lawyers and the Legal Profession, Volumes I and II
Laura Dickinson Tanina Rostain
Legal Lives of Private Organizations Capital Punishment, Volumes I and II
Lauren Edelman and Mark C. Suchman Austin Sarat
Courts and Judges Legality and Democracy
Lee Epstein Stuart A. Scheingold
Consciousness and Ideology The Law and Society Canon
Patricia Ewick Carroll Seron
Prosecutors and Prosecution Popular Culture and Law
Lisa Frohmann Richard K. Sherwin
Intellectual Property Law and Science
William T. Gallagher Susan Silbey
Human Rights, Law and Society Immigration
Lisa Hajjar Susan Sterett
Race, Law and Society Gender and Feminist Theory in Law and Society
Jan Haney Lopez Madhavi Sunder
The Jury System Procedural Justice, Volumes I and II
Valerie P Hans Tom R. Tyler
Regulation and Regulatory Processes Trials
Robert Kagan and Cary Coglianese Martha Merrill Umphrey
Crime and Criminal Justice
William T. Lyons, Jr.
Edited by
Patricia Ewicl<
Clark University, USA
First published 2006 by Ashgate Publishing
Published 2016 by Routledge

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British Library Cataloguing in Publication Data

Consciousness and ideology. - (The international library of
essays in law and society)
!.Sociological jurisprudence 2.Consciousness 3.Ideology
I. Ewick, Patricia
340.1'15
Library of Congress Control Number: 2006908731
ISBN 9780754624967 (hbk)

Contents
Acknowledgements VII
Series Preface IX
Introduction XI
PART I CONSCIOUSNESS AND IDEOLOGY IN SOCIO-LEGAL STUDIES
Alan Hunt (1985), 'The Ideology of Law: Advances and Problems in Recent
Applications of the Concept ofldeology to the Analysis of Law', Law and Society
Review, 19,pp.11-37. 3
PART II CONCEPTUAL PRACTICES OF IDEOLOGY AND CONSCIOUSNESS
2 Timothy Mitchell (1990), 'Everyday Metaphors of Power', Theory and Society,

19, pp. 545-77. 33
3 Jonathan Simon (1988), 'The Ideological Effects of Actuarial Practices', Law and
Society Review, 22, pp. 771-800. 67
4 Ronen Shamir (1996), 'Suspended in Space: Bedouins under the Law oflsrael',
Law and Society Review, 30, pp. 231-57. 97
PART III DISCURSIVE PRACTICES OF IDEOLOGY AND CONSCIOUSNESS
5 Martha Merrill Umphrey (1999), 'The Dialogics ofLegal Meaning: Spectacular

Trials, the Unwritten Law, and Narratives of Criminal Responsibility', Law and
Society Review, 33, pp. 393-423. 127
6 Brinkley Messick (1988), 'Kissing Hands and Knees: Hegemony and Hierarchy
in Shari'a Discourse', Law and Society Review, 22, pp. 637-59. 159
7 Mark Kessler (1993), 'Legal Discourse and Political Intolerance: The Ideology of
Clear and Present Danger', Law and Society Review, 27, pp. 559-97. 183
8 Sara Cobb and Janet Rifkin (1991), 'Practice and Paradox: Deconstructing
Neutrality in Mediation', Law and Social Inquiry, 16, pp. 35-62. 223
9 Sally Engle Merry (1990) 'The Discourses of Mediation and the Power of
Naming', Yale Journal ofLaw and the Humanities, 2, pp. 1-36. 251
vi Consciousness and Ideology
PART IV LEGAL CONSCIOUSNESS, RESISTANCE AND THE EVERYDAY
10 Laura Beth Nielsen (2000), 'Situating Legal Consciousness: Experiences and

Attitudes of Ordinary Citizens about Law and Street Harassment', Law and Society
Review, 34, pp. 1055-90. 289
11 Valerie Karno (2003), 'Remote Justice: Tuning in to Small Claims, Race, and the
Reinvigoration of Civic Judgment', Studies in Law, Politics and Society, 30,
pp.261-82. 325
12 Austin Sarat (1990), '" ... The Law Is All Over": Power, Resistance and the Legal
Consciousness of the Welfare Poor', Yale Journal ofLaw and Humanities, 2,
pp. 343-79. 347
13 Benjamin Fleury-Steiner (2002), 'Narratives of the Death Sentence: Toward a
Theory of Legal Narrativity', Law and Society Review, 36, pp. 549-76. 385
14 Patricia Ewick and Susan Silbey (2003), 'Narrating Social Structure: Stories of
Resistance to Legal Authority', American Journal of Sociology, 108, pp. 1328-72. 413
15 Kitty Calavita (2001), 'Blue Jeans, Rape, and the "De-Constitutive" Power of
Law', Law and Society Review, 35, pp. 89-115. 459
Name Index 487

Acknowledgements
The editor and publishers wish to thank the following for permission to use copyright
material.
Blackwell Publishing for the essays: Alan Hunt (1985), 'The Ideology of Law: Advances and
Problems in Recent Applications of the Concept ofldeology to the Analysis of Law', Law and
Society Review, 19, pp. 11-37; Jonathan Simon (1988), 'The Ideological Effects of Actuarial
Practices', Law and Society Review, 22, pp. 771-800; Ronen Shamir (1996), 'Suspended
in Space: Bedouins under the Law of Israel', Law and Society Review, 30, pp. 231-57;
Martha Merrill Umphrey (1999), 'The Dialogics of Legal Meaning: Spectacular Trials, the
Unwritten Law, and Narratives of Criminal Responsibility', Law and Society Review, 33, pp.
393-423; Brinkley Messick (1988), 'Kissing Hands and Knees: Hegemony and Hierarchy in
Shari'a Discourse', Law and Society Review, 22, pp. 637-59; Mark Kessler (1993), 'Legal
Discourse and Political Intolerance: The Ideology of Clear and Present Danger', Law and
Society Review, 27, pp. 559-97; Laura Beth Nielsen (2000), 'Situating Legal Consciousness:
Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment', Law and
Society Review, 34, pp. 1055-90; Benjamin Fleury-Steiner (2002), 'Narratives of the Death
Sentence: Toward a Theory of Legal Narrativity', Law and Society Review, 36, pp. 549-76;
Kitty Calavita (200 1), 'Blue Jeans, Rape, and the "De-Constitutive" Power of Law', Law and
Society Review, 35, pp. 89-115.
Elsevier for the essay: Valerie Karno (2003), 'Remote Justice: Tuning in to Small Claims,
Race, and the Reinvigoration of Civic Judgment', Studies in Law, Politics and Society, 30, pp.
261-82. Copyright© 2003 with permission form Elsevier.
Springer for the essay: Timothy Mitchell (1990), 'Everyday Metaphors of Power', Theory
and Society, 19, pp. 545-77.
The University of Chicago Press for the essay: Patricia Ewick and Susan Silbey (2003),
'Narrating Social Structure: Stories of Resistance to Legal Authority', American Journal
of Sociology, 108, pp. 1328-72. Copyright© 2003 The University of Chicago. All rights
reserved.
Every effort has been made to trace all the copyright holders, but if any have been inadvertently
overlooked the publishers will be pleased to make the necessary arrangement at the first
opportunity.
Q Taylor & Francis
~- Taylor & Francis Group
http://taylorandfra ncis.co m
Series Preface
The International Library ofEssays in Law and Society is designed to provide a broad overview
of this important field of interdisciplinary inquiry. Titles in the series will provide access to
the best existing scholarship on a wide variety of subjects integral to the understanding of
how legal institutions work in and through social arrangements. They collect and synthesize
research published in the leading journals of the law and society field. Taken together, these
volumes show the richness and complexity of inquiry into law's social life.
Each volume is edited by a recognized expert who has selected a range of scholarship
designed to illustrate the most important questions, theoretical approaches, and methods in
her/his area of expertise. Each has written an introductory essay which both outlines those
questions, approaches, and methods and provides a distinctive analysis of the scholarship
presented in the book. Each was asked to identify approximately 20 pieces of work for
inclusion in their volume. This has necessitated hard choices since law and society inquiry is
vibrant and flourishing.
The International Library of Essays in Law and Society brings together scholars representing
different disciplinary traditions and working in different cultural contexts. Since law and
society is itself an international field of inquiry it is appropriate that the editors of the volumes
in this series come from many different nations and academic contexts. The work of the
editors both charts a tradition and opens up new questions. It is my hope that this work will
provide a valuable resource for longtime practitioners of law and society scholarship and
newcomers to the field.
AUSTIN SARAT
William Nelson Cromwell Professor ofJurisprudence and Political Science
Amherst College
Q Taylor & Francis
Introduction
Most introductory essays on ideology and socio-legal studies begin by characterizing the
concept of ideology as unwieldy, highly contested, fraught with contradiction, elusive
and difficult to 'discipline' (see Amherst Collective 1988; Silbey 1993; McLellan 1986).
Complicating the situation further, hegemony, often with little explication, is used as either
a synonym for ideology or, when a distinction is drawn, as a superlative form of ideology,
seamless and invisible: ideology supersized. Inevitably, the essays move to grapple with
ideology/hegemony's conceptual 'other': consciousness. In regard to consciousness, there
does seem to be one point of near consensus and clarity: whatever it is, it is definitely not
'false'. Beyond that settled matter, there is disagreement over whether consciousness is, or
might be, 'authenticate', or counter-hegemonic.
Despite the elusiveness of these terms, they remain remarkably robust within socio-legal
studies. 'Ideology' the concept, much like its referent, has an openness, polyvalence, and
a scope that makes it profoundly useful when studying legality. Ideology, hegemony and
consciousness implicate correlative concepts such as power and meaning, concepts that lie at
the heart of the social study of law. As the essays in this volume vividly illustrate, the concepts
illuminate the ways in which law comes to act in the world. They clarify the processes through
which the 'social' and the 'legal' are constructed as a going concern. They help us understand
the persistence of inequality and privilege. They sharpen our sense of constraint and agency,
power and resistance. The empirical reach of these essays provides a panoramic view of how
and with what consequences power and meaning conspire to construct a world, legitimate
it, reify it, and, if only contingently, stabilize it so that it appears given and inevitable. In the
essays that follow, exactly how power and meaning operate in tandem is explored among
death penalty jurors, welfare recipients, Southeast Asian peasants, S'hariajudges, Judge Judy
and other Court TV jurists, Israeli courts, ordinary Americans, spectacular trials or statistical
graphs. Collectively, the essays enrich our understanding of ideology and consciousness
without diminishing their conceptual capaciousness. The essays do not attempt to discipline
the unruly, reconcile the contradictions, or definitionally restrict the empirical variety and
richness ofthe concepts. In that sense, they remain true to their subject.
A Brief History of Ideology, Hegemony and Consciousness
The starting point for most discussions of ideology and consciousness is the Marxist
formulation of these terms. In the German Ideology (1970), Marx and Engels characterize
ideology as a form of cognitive distortion, a false or illusory representation ofthe real. In this
rendering, ideology is equated with the realm of the ideal. Ideologies operate to explain history
according to philosophy and religious systems and in doing so, disguise the material interests
embedded in the operation of society. Ideology prevents men and women from perceiving
the real conditions of existence, or their own 'real' interests as they might find expression in
those conditions.
xii Consciousness and Ideology
As thus conceived in nineteenth-century social theory, consciousness and ideology were

opposed to one another. Whereas ideology represented the concealment of power, consciousness
entailed its unmasking. In this classical tradition, both concepts were ideational. Ideology
was associated with systems of beliefs that naturalized inequality. Consciousness, by contrast
was the awareness, held by individual subjects, that these beliefs were distorted, partial and
interested. So perfect was this opposition that the phrase 'false consciousness' came to be
synonymous with ideology, a conceptual inversion that created identity.
For Marx, overcoming the ideological required a 'study of actuality', or the empirical
examination of the practical relations of everyday life. Such a study would explode the
illusion of the ideal, revealing the embedded material interests that obscured the so-called
actual. From the point of view of historical subjects of such ideologies, this would lead to
class consciousness, or an appreciation and realization of these interests. Laboring under the
illusions offered by religion and philosophy was, by contrast to have false consciousness.
Thus consciousness either sustained (false) or penetrated (class) ideology.
Late-twentieth-century socio-legal scholars have largely rejected this version of ideology
as merely an epiphenomenal expression of underlying class domination, identifying a number
of problems with the concept. Perhaps most troublesome has been the Marxist legacy of
ideology as illusion or as a form of false consciousness (Hunt, Chapter 1, this volume).
The main reason for contemporary unease with the idea of false consciousness has been the
rejection or questioning of the existence of an underlying truth, in an Enlightenment sense of
an objective reality. Indeed, many of the dualities that characterized the ideological critiques of
the nineteenth and early twentieth centuries (science/ideology; real/ideal, subject/object) have
been disputed or rejected by contemporary scholars. Most significantly, they have rejected
the possibility of a system of ideas and symbolic forms that misrepresents a social reality that
exists prior to or independently from those ideas (Thompson, 1990).
A corollary of this criticism, insofar as it questions the notion of distortion or concealment,
is the charge that ideology as false consciousness misrepresents or underestimates the degree
to which subjects see through prevailing power relations. Subjects are instead reconceived of
as being conscious of the power relations that suffuse their everyday social interactions. This
insight has led socio-legal scholars to examine the consciousness of legal subjects as a terrain
of struggle, contestation, and inventiveness and resistance, rather than as a repository of
ideological representations received from above. Legal subjects are seen as actively engaged
in ideological processes of both reproduction and resistance. In interactions with legal
authorities as well as with one another, individuals invoke, comment upon, reject and revise
the symbolic meanings that comprise the ideological. In doing so, they creatively constitute
- sometimes knowingly and sometimes unknowingly - the situated power relations within
which they act.
One solution to the problems associated with the concept of ideology as epiphenomenal
illusion has been to abandon the notion of ideology as 'ruling idea', and to equate it with 'idea',
or more precisely, 'contested idea'. Ideology loses its pejorative connotation and assumes a
more neutral and descriptive bent. In this formulation, ideology becomes synonymous with
'system of ideas', 'system of symbols', or 'system of beliefs'. Ideology is seen as animating
social action, but it is not aligned with any particular type of action, political project or set
of interests. Ideology thus assumes a pluralist and democratic quality. What is achieved by
Consciousness and Ideology xiii
democratizing ideology is a recasting of subjects as conscious actors who are active in the
process of making sense of the world and their experiences.
While this move avoids some of the pitfalls associated with earlier uses of the ideology, it
falls headlong into a number of others. Most notably, this approach to ideology neutralizes the
term by severing its connection to power and subordination. Unfortunately, stripping ideology
of its negative aspects leaves unanswered many of the problems that it was initially formulated
to draw attention to, questions such as domination, inequality and social reproduction. For
instance, in her critique of this approach Silbey (1998) observes that focusing on the freely
choosing subjects fails to take into account the ways in which power and privilege are
embedded in institutions and language:
Unfortunately, the emphasis on the choosing subjects selecting from a tool kits of available symbols,
metaphors, and strategies elides the actions of collectivities seeking to privilege their vision of the
world as reality, and the efforts of others in turn to find the means to resist such attempts (282)
Adopting a definition of ideology that equates it with a 'system of beliefs' relieves many of
the tensions that inhere in the classical concept of ideology. But the solution comes at a high
price. Ideology loses most of its critical capacity and, thus, its usefulness as a social scientific
concept.
Yet, as the essays in this volume illustrate, it is possible to salvage the critical capacity of
the concept of ideology without abdicating its association with power. Many of these essays
retain the idea that ideologies legitimate and reproduce social inequality without making
any explicit assertion that 1) there is a real underlying truth that is being obscured; 2) that
subjects' consciousness is passively and automatically reflective of ruling ideologies; or
3) that ideologies are necessarily aligned with the interests of one class. By contrast, they
conceive of ideologies as operating not by concealing or masking the truth, but through the
artful production of truth.
As the concepts have developed during the twentieth century, ideology and consciousness
are no longer understood to be necessarily opposed to one another. As with so many other
conceptual couplets (for example, structure/agency, power/resistance), elements that were
initially conceived of as distinctive and opposed have been construed as internal components
of a larger process of social construction. For instance, while there is still much that is contested
about the nature and meaning of ideology, there is an emerging consensus over what it is not.
Few contemporary socio-legal scholars would claim that ideology is a grand set of ideas
that in its seamless coherence imposes belief. It is not, in other words, a system of ideas that
strictly determines what people think, that is, their consciousness, false or otherwise. In fact,
the most promising reformulations of ideology propose that it is not a body of abstracted ideas
at all, static, coherent or otherwise. Rather, ideology is a complex process 'by which meaning
is produced, challenged, reproduced, [and] transformed' (Barrett, 1980; see also Bahktin,
1987; Billig, 1991; Steinberg, 1991, 1999; Umphrey, Chapter 5, this volume). Construed as
a process, ideology shapes social life, not because it prevents thinking by programming or
deceiving people into a state of resignation or complacency, but because ideology actively
invites thinking. In order to remain viable, ideology has to be lived, worked out, and worked
on. It has to be expressed and applied and challenged. People have to use it to make sense of
their lives and the world around them. In order to be a source of meaning and sense making,
xiv Consciousness and Ideology
ideology must be polysemic, open, varied and complex. Without these qualities, it would be
useless and wither, or it would become a source of derision, fear or ridicule. It would, in short,
cease to be ideological.
Consciousness likewise figures prominently into this process of social construction. First,
it too has been expanded to denote more than ideas that individual knowers have about power
and inequality. Consciousness represents participation in the production of the very social
structures that generate the degree and types of inequality existing in a society (Ewick and
Silbey, Chapter 14, this volume). In this sense, legal consciousness entails both thinking and
acting: telling stories, complaining, lumping grievances, working, marrying, divorcing, suing
a neighbor or refusing to call the police. Through the circuitry of social practice, the boundary
between structure and agency is blurred. With this blurring, consciousness is dislodged from
the mind of an individual knower insofar as knowing always entails the invocation of cultural
schemas and deployment of differentially available resources. It, in other words, emerges out
of, even as it shapes, social structures.
Reformulating ideology in such a way as to recognize it as a creative and constitutive
process parallels Foucault's reconceptualization of power ( 1977). Whereas Foucault asks us
to consider power as a productive capacity, a similar claim has been made about ideology.
Rather than focus on it as a camera obscura, ideology is increasingly understood to be a
lens, providing not just a(n) (inverted) vision of the real but actually producing the real. This
claim grows out of the social constructivist or constitutive theory of social life. Within this
framework, consciousness and ideology are understood to be part of a reciprocal process
through which the meanings given by individuals to their world become patterned, stabilized,
and objectified. These meanings, once institutionalized, become part of the material and
discursive systems that limit and constrain future meaning making.
The concept of hegemony, initially outlined in Gramsci's Prison Notebooks, addressed
many of the limitations of more orthodox formulations of ideology such as its association
with the state, class interests, and its connotations of deception and passivity. Gram sci defined
hegemony as a condition of domination through consent, rather than coercion. The key to
understanding the basis of consent is what Gram sci called 'contradictory consciousness',
where the contradiction lies between the experience of everyday life in which people encounter
the conditions of work and lived social relations and official accounts of how things work.
Thus, rather than monolithic and singular and imposed from a centralized state, hegemony is
a product of contradiction and is expressed as contradiction.
Neither, for Gramsci, is hegemony an expression of class interests in the strict Marxist
sense. The interests served by the hegemonic are those which Gramsci called an 'historical
bloc': allied groups with cross-cutting interest, which may or may not be economic. A
contemporary example of such an historical bloc might be the conservative right in the US
- a coalition of Christian evangelicals, corporate multi-nationals, and economically fragile
middle-class workers facing job losses. Thus, Gramsci untethers hegemony from the state,
locating ideological processes in civil society, everyday life and social institutions, authorizing
a larger empirical scope for subsequent generations of scholars.
Finally, the concept of hegemony inflects the active involvement of individuals, rather than
the passive reception of ideas. The participation of individuals in producing the hegemonic is
conveyed in Gramsci's claim that the hegemonic is based on consent (consenso), rather than
deception.
Consciousness and Ideology XV
Gram sci's use of the word 'consenso' has generated considerable confusion in its own right.
Many scholars, relying on different translations, use the term 'consensus' rather than 'consent'
in discussing Gram sci's hegemony. It is constitutive of these institutions and practices. This
semantic replacement is not trivial in that it implies vastly different processes through which
power is secured. Consensus suggests a process in which information is exchanged, considered
and some degree of 'agreement' is reached among interacting parties. While such processes
certainly do occur (for example, voting, negotiations, deliberations, mediation), in every
interaction there is a prior, and largely unacknowledged, realm of meaning that grounds the
communicative and deliberative processes. This ground of meaning is what makes consensus,
and dissensus, possible. Charles Taylor elaborates on this realm ofintersubjective meaning:
[C]onvergence of belief or attitude or its absence presupposes a common language in which these
beliefs can be formulated, and in which these formulations can be opposed. Much of this common
language in any society is rooted in its institutions and practices. It is part of the intersubjective
meanings. To put the point another way, apart from the question of how much people's beliefs
converge is the question of how much they have a common language of social and political
reality in which these beliefs are expressed. This second question cannot be reduced to the first,
intersubjective meaning is not a matter of converging beliefs or values. When we speak of consensus
we speak of beliefs and values which could be the property of a single person, or many, or all; but
intersubjective meanings could not be the property of a single person because they are rooted in
social practice (Taylor, 1971, p. 28). 1
Gram sci's use of the word consenso refers to this non-reducible realm of meaning, rather than
to the consensus or dissensus that it enables. The point is that even in the case of contest,
consent may be present insofar as the conflict entails an acceptance of the fundamental
categories of thought that make the expression of dissensus possible.
It is clear that many of the contemporary reformulations of the concept of ideology that I
outlined earlier make the concept difficult to distinguish from hegemony. Indeed, I propose
that in rejecting various aspects of Marx's version of ideology (for example, state based,
class linked, top down deception) scholars were simultaneously embracing Gramsci's
concept ofhegemony. 2 As commonly used, both concepts refer to widely dispersed practices
(institutional and discursive) that have the effect of creating or reproducing asymmetries of
power and status without recourse to overt coercion. Ideology and hegemony both articulate
power insofar as they embody what Dorothy Smith has called procedures for 'not knowing'.
This conceptualization of ideology (I will hereafter use the single term) actually retains an
element of concealment. But, emerging out of a constitutive theory of law, this understanding
of ideology deftly avoids making any claims about a foundational truth that can be opposed to
Durkheim drew a similar distinction when he contrasted that which is 'general' (widely
reproduced in the minds of many persons) from that which is 'collective' (that which may be present in
the minds of many, or even all, persons, but is not reducible to any individual). He referred to the latter
as social facts.
Reflecting the semantic confusion that this convergence has produced, the authors in this
volume use both terms more or less interchangeably, although some prefer the term ideology and others
hegemony (in fact, a few use neither). My caution to the reader is that there does not seem to be any
non-arbitrary rule governing the adoption of one term over the other.
xvi Consciousness and Ideology
ideology. Ideology, I propose, inheres in the processes or form of concealment, rather than in
the content of that which is concealed.
This view of ideology recognizes that it does not simply operate alongside domination; it
is not merely a tool to be used to hide or create a distraction from the real. Rather the social
meanings that we define as ideological are constitutive of domination. We can thus define
ideology as 'the ways in which meaning serves, in particular circumstances, to establish and
sustain relations of power which are systematically asymmetrical' (Thompson, 1990).
It is important to emphasize that ideology is not defined by its content. It can only be
recognized within particular socio-historical contexts and, more specifically, by its operation
within those contexts. In short, ideologies are known in terms of their effects. A particular set
of meanings can only be said to be ideological insofar as it 'serves' power (Thompson, 1990,
p. 7). The emphasis is thus on the active verb serve, reminding us that ideological analysis
can only take place by examining the particular situational contexts in which struggles over
meaning occur and paying attention to how those struggles contingently stabilize power.
This reformulation of ideology has had significant empirical consequences and conceptual
ramifications. It has led to a body of socio-legal research that considers the 'ideological
effects' of certain forms, practices and discourses (Mitchell, Chapter 2, this volume; Simon,
Chapter 3, this volume). The phrase 'ideological effects' is a somewhat cumbersome locution,
but one which usefully emphasizes and makes explicit the contingent and transactional nature
of ideology. Moreover, a focus on ideological effects directs attention away from the content
of ideology toward a specification of techniques and forms through which meaning is made
and deployed in the service of power. Although the particular content of ideology cannot be
specified ahead of time, its effects will be to make that which is arbitrary appear inevitable
and natural. In this way, the contingency of power and hierarchy are stabilized through the
processes of 'not knowing', an essential part of the artful production of truth.
Plan of the Book
Law is, of course, an ideological discourse par excellent in that it is in the business of meaning
making. As many scholars have noted, the law shapes our lives in ways that are rarely
recognized. It invests us with identities and subjectivities; it shapes the physical and material
world we live in; and it establishes rules and practices of other institutions. Finally, law is
deliberately designed to operate as a 'terrain of struggle'. Much of the law- its organizations,
professional practices and rules of procedure - operate as an arena in which the dialogic
conflicts are fought. Most important, however, by presenting itself as a 'referee' in these
struggles, the legal system denies that it is an active or interested participant in the conflict.
Thus, legal decisions and meanings are ideological precisely because they appear to be non-
ideological.
Focusing on ideology as a process of meaning making- as opposed to a system of beliefs
- necessarily implicates an examination of the procedures, forms and discourses through
which meaning is produced and how it operates in social transactions. With that end in
mind, the essays in this volume are organized into four parts: Consciousness and Ideology
in Socio-Legal Studies, The Conceptual Practices of Ideology, Discursive Practices of
Ideology and Consciousness, and Legal Consciousness, Resistance and the Everyday. The
Consciousness and Ideology xvii
introductory essay by Alan Hunt that constitutes Part I lays out some of the general analytic
and definitional issues that need to be addressed by socio-legal scholars, including the issue
of class domination, false consciousness, and the production and effectivity of legal ideology.
This essay sets the groundwork for the following sections within which ideological effects are
empirically explored.
The Conceptual Practice of Ideology
Part II includes three essays that examine the conceptual practices of ideology. By this phrase,
I refer to the forms, procedures and practices that generate the intersubjective 'ground' on
which ideological struggles occur. In his essay, 'Everyday Metaphors of Power' (Chapter
2), Mitchell identifies the production of this ground as 'enframing', or the construction of
the distinction of the ideational from the material; the immediate, physical realm from the
unphysical, abstract, ahistorical realm. The apparent divide operates as a form of hegemony
insofar as it orders thought. The epistemological authority of the ahistorical, remote, fixed
reality, prevails over the mundane experiences of individuals, or 'the unreliable category of
personal experience'. The subversive potential of lived reality is quashed when placed in
relation to the abstract, unchanging, immutable realm.
The particular procedures that produce the apparent distinction in the case of the Sedaka
society include such things as the mechanization of production, the scheduling of irrigation,
and the use of a money economy; in short, a variety of modem practices that seemed to
remove agency from the world of on-going social interaction and displace it to a remote,
fixed, and permanent world beyond apprehension, intervention or critique.
Simon ('The Ideological Effects of Actuarial Practices', Chapter 3) writes of the ideological
effects of statistical representations whereby the collection of data and use of seemingly
neutral statistical techniques create categories of persons who then become the object of social
practice. Thus, women, by virtue of their longer life expectancy compared to men, become a
category for setting insurance premiums; high rate offenders give rise to a typical profile which
becomes the basis for criminal justice policy. Because these techniques create subpopulations
based on statistical features of a population, rather than on interactive communities, these
practices disable traditional forms of resistance and collective protest. Most significant, these
techniques are politically powerful, in part, because they seem to be unconnected to political
projects and are lodged squarely in rational analysis of data. Simon observes,
Actuarial techniques play a central role in a proliferating set of social practices. They are at the same
time a regime of truth, a way of exercising power, and a method of ordering social life. Actuarial
practices have not seemed very important nor attracted much interest from social observers in part
because they are already so familiar, and in part because they fit so unobtrusively into various
substantive projects (e.g. educating, hiring, premium setting) in which they are subordinated as a
means to an end. Yet this unobtrusiveness is precisely why they have become so important; they
make power more effective and efficient by diminishing its political and moral fallout.
In his analysis of Bedouins under the law of Israel, Shamir (Chapter 4), writes about the
dispossession of Bedouin lands by depriving them of a history and 'suspending' them in
space. By imposing a modern grid of time and space over the desert, 'expecting space to be
xviii Consciousness and Ideology
divided, parceled, registered, and bounded' and 'treating time as a series of distinct moments
and refusing any notions of unbounded continuity' the Israeli court literally and figuratively
'emptied' the desert. Shamir observes, 'The ordering of space, a derivative of intellectual
conceptualism, is an act of violence executed through aesthetic means'.
The various ideological forms examined in this section all, in one way or another, entail the
process of reification wherein an abstracted form supercedes the material and social reality
it represents. Reification always involves the denial of 'a social and historical character of
social-historical phenomena' (Thompson, I 990). Rather than perceive law and legality as a
constellation ofrelated actors and actions, objectified in particular material forms and enacted
by historical subjects, they are perceived as existing 'out of history', detached from human
action and consciousness. A reified world provides a dehumanized vision where law may find
expression in human action and intention; it may be 'expressed' or 'reflected' in a judge's
pronouncement, a surveyor's map, or a statistical graph, but it is only incidentally related
to such enactments. Reification is achieved through abstractions that aggregate concrete
historical actors and actions into a transcendent entity detached from the original. The
process is complete when the abstraction itself is concretized, endowed with the ontological
independence of a thing that exists separately from the empirical manifestations that gave
rise to it. The observable, discrete and particular world of human social interaction becomes
a vessel or container for the legal, which is understood to exist independently from these
forms.
What Shamir wrote generally of law and society research we might say oflaw and ideology:
'an important achievement of recent sociolegal scholarship on law ... is that it portrays the
form of law, rather than its specific content, as the deeper layer of its mode of operation' (in
original, Shamir, 1996: p. 235).
Discursive Practices of Ideology and Consciousness
Part Ill of the volume examines the discursive practice of ideology and consciousness where
discourse refers to 'the process and product of socially situated and institutionally ordered ways
people communicate their representations of lived and imagined realities' (Steinberg, I 999:
p. 743). When ideology is conceived of being generated through discourse, it is understood
to be interactive and embedded in particular social contexts (see Bakhtin, 1987; Umphrey,
Chapter 5, this volume). Being interactive suggests that the meanings produced through this
process are never singular or fixed, but are continually available for interpretive innovation or
deployment in new settings or for unanticipated purposes.
Umphrey's essay (Chapter 5), 'The Dialogics of Legal Meaning: Spectacular Trial, the
Unwritten Law, and Narratives of Criminal Responsibility', examines the Harry Thaw murder
trial as an example of how the criminal trial 'materializes' the dialogic process through which
legal meaning is constructed. Operating as a crucible for competing narratives, legal and extra-
legal definitions of criminal responsibility and broader cultural beliefs about gender, sexuality
and honor, spectacular trials produce legal meaning in all of its richness and instability.
In his essay, 'Kissing Hands and Knees' (Chapter 6), Messick finds the Shari'a legal texts
to contain multiple and contradictory ideas about hierarchy and equality. Rather than interpret
these contradictions as weakening the ideological message, he concludes that multiplicity and
contradiction constitute the ideological effect. Messick proposes that the 'hegemonic strength
Consciousness and Ideology xix
of discourse is its textual and lived heteroglossia'. The polyvocality of the texts served as an
impediment to resistance by standing ready to answer any critique. The exquisite irony is that
textual instability produces the ideological stability.
Being interactive, however, suggests that the possibilities for legal meaning making are,
while open, also constrained by social situations. In part, the constraints reflect past discursive
practices that have become institutionalized, what Umphrey refers to as 'the script'. Rules of
evidence and cross-examination and prevailing ideas of criminal culpability illustrate such
institutionalized constraints in the Thaw trial.
Constraints may also reflect the sedimentation of meaning that is imported into any given
setting. As Bakhtin observed, 'The living utterance, having taken meaning and shape at a
particular historical moment in a socially specific environment, cannot fail to brush up against
thousands of living dialogic threads. And not all words for just anyone submit equally easily
to appropriation ... many words stubbornly resist, others remain alien' (quoted in Steinberg,
1999).
The fact that some words resist appropriation, or remain alien, suggests that past struggles
over the word have privileged some meanings and suppressed others. Observing that discourse
is principally organized around practices of exclusion, Mills writes, 'Whilst what it is possible
to say seems self-evident and natural, this naturalness is a result of what has been excluded,
that which is almost unsayable' (1997: p. 12). In short, the possibilities of thought (Messick,
p. 657) or 'conditions of possibility' (Umphrey, Chapter 5, this volume) limit the terms of the
critique.
In the case ofYemen, Messick counts among such unsayables: the construct of the individual,
the general social form of the contract, the recognition of hierarchy and the egalitarian concern
for mismatches between statuses, and assumptions concerning the existence and the importance
of knowledge. 'This is the Shari'a as a societal discourse that saturates and is saturated by a
given reality, that articulates the nature of a particular world, that is the possibility ofthought
itself (Williams, 1977)' (Messick, Chapter 6, this volume). The Shari'a texts function as a
'way of not knowing', not by dictating narrow and rigid beliefs, but by creating a system of
conceptual and discursive forms that structurally excludes certain beliefs from thought.
Kessler's contribution to this volume (Chapter 7), also examines legal discourse, in his
case Supreme Court opinion on political expression in the aftermath of World War I. In these
court opinions, Kessler identifies two contradictory strands of legal discourse. On one hand,
individual expression is privileged and only limited in extreme circumstances of 'clear and
present danger'. Within these opinions, however, he also finds definitions of 'danger' that
associate it with un-American speakers (immigrants, advocates of labor unions, socialists).
'Danger' is thus contextualized in such a way as to appropriate extra-legal discourses that
prevailed at the time: nativism, xenophobia, and patriotism. Kessler's research reminds us
that legal hegemony is predicated on both the inconsistencies and multiplicity internal to legal
discourse as well as extra-legal discourses prevailing at this time.
Cobb and Rifkin's examination of mediation practices in Chapter 8, emphasizes that the
discursive exclusion that lies atthe heartofideology is achieved notonlythrough the multiplicity
of meanings attached to concepts such as 'neutrality', but also through the organization of the
communicative transaction. Meaning, in other words, does not simply inhere in words or
utterances but in the social situation in which communications occur. They found that the
structure of the mediation session enabled one story to set the semantic and moral grounds
XX Consciousness and Ideology
on which the discussion would take place. For instance, such factors as the order in which
stories are presented differentially 'positions' the actors in the unfolding narrative account
of the dispute and, ultimately, to the summaries that the mediators would fashion. Meaning,
they conclude, is never a property of the word but is constructed in use, in particular social
contexts, as part of particular practices, the social construction and management of meaning
is a political activity.
In her essay, Merry (Chapter 9), also studies the discourses of mediation to discover subtle
forms of ideology and power at work. Based on years of ethnographic observation, Merry
found three distinct discourses at play in most mediation sessions: the moral, the legal and
the therapeutic. The working class plaintiffs and the educated middle class mediators often
framed the disputes in competing discourses with the plaintiffs favoring legal constructions
and mediators moral or therapeutic interpretations. Merry emphasizes that what is at stake
in these contests over 'naming' is the power to shape solutions. Whether an abusive father
is understood to be cruel, an alcoholic, or a violent felon, will determine what interventions
will be taken. Moreover, she links the power to name to the class, education and institutional
authority of the contestants. In this way, discourse is aligned with institutional practice and
social structure to reproduce existing asymmetries of status.
Legal Consciousness, Resistance and the Everyday
Three conceptual moves surrounding ideology/hegemony have had profound consequences

for the theoretical and empirical significance accorded legal consciousness. First, the
reconceptualization of ideology as an emergent process of meaning making that is invested
with power relations transfigured consciousness as a theoretical construct. Whereas in more
classical formulations consciousness was merely epiphenomenal, it is now understood to be
internal to ideological processes. We have come to see both ideology and consciousness as
dynamic, cultural productions that have no virtual existence outside or apart from the words,
deeds, and interactions that constitute social life.
Second, the Gramscian move that located hegemonic processes outside of the state in
families, schools, workplaces and the media also shifted attention to the 'everyday' as a site
of ideology production and struggle. Sarat and Kearn made an explicit recommendation that
scholars broaden their empirical focus to encompass the everyday world where people live:
'In our view, scholarship on law in everyday life should abandon the law-first perspective and
should proceed, paradoxically, it with eye not on law, but on events or practices that seem on
the face of things, removed from law, or at least not dominated by law from the outset.' If
consciousness is internal to the production, reproduction and transformation of legal ideology,
then we must begin where people live, in their 'ordinary' lives where law seems absent or
remote.
Finally, the insight that ideology is an on-going process in which persons are active
participants underscored the possibility of intervention and resistance. In short, such processes
could be disrupted, subverted, challenged and transformed. This idea has generated intense
interest in everyday forms of resistance that previously had escaped the empirical gaze or
theoretical interest of scholars of ideology. Each of the essays in Part IV of the volume in one
way or another address issues that are generated by the focus on consciousness, resistance
and the everyday.
Consciousness and Ideology xxi
Nielsen's 'Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens

about Law and Street Harassment' (Chapter I 0), employs the concept of legal consciousness
to describe the construction, penetration and circulation of legality throughout social life.
Her research confirms that legality lives beyond the self-proclaimed boundaries of law by
showing that people actively interpret and use legal values, ideas, standards and concepts
in organizing and negotiating social interactions. Focusing on the fleeting hateful speech
encounters that occur in public spaces, Nielsen finds that consciousness regarding the legal
meaning of offensive public speech tends to be organized around one of four paradigms (first
amendment, autonomy, impracticality and distrust of authority) and that these paradigms are
aligned with the race and gender ofthe individual. She concludes that while consciousness is
clearly not determined or epiphenomenal, it is 'situated' in relation to social hierarchies and
the resulting experiences persons have with law.
Kamo's 'Remote Justice: Tuning in to Small Claims, Race and the Reinvigoration of Civic
Judgment' (Chapter 11), analyzes the genre of television programs known as court TV in her
investigation of law and the everyday. The shows are staged small claims cases presided over
by flamboyantly racialized (but often real) judges and viewed disproportionately by lower
class persons. Kamo notes the ways in which the judges deploy cultural notions of 'stupidity'
(attributed to one or both parties to the case) to perform a specie of 'commonsense' law.
Despite the apparent trivialization of law, Kamo proposes that, through the positioning of the
viewers, spectators are offered a source of legal subjectivity that is based on inclusion and
helps them imagine law as a 'necessary and inclusive component of everyday citizenship'.
Sarat's 'The Law Is All Over': Power, Resistance and the Legal Consciousness of the
Welfare Poor' (Chapter 12), is a classic in the new legal consciousness and resistance studies.
Based on interviews with welfare recipients, Sarat finds that his respondents were hardly
bamboozled by the legitimating symbols of law. They were acutely aware of the power
relations in which they were caught. They also developed ways of navigating and negotiating
these relations in order to get by. Sometimes this involved using 'lawyers' law' or manipulating
the very bureaucratic structures they were caught in to get what they needed. Yet, Sarat does
not forget power nor romanticize the efforts of the welfare poor. The ideological insights and
interventions of the welfare poor did not necessarily change the power relationships that they
challenged and resisted. Constrained by their dependency as well as the social organization
ofthe welfare bureaucracy, '[T]he welfare poor construct a consciousness of law on the basis
of their daily deprivation, their experience of unequal often demeaning treatment, and their
search for tools with which to cope with an often unresponsive welfare bureaucracy. Law
is, for the welfare poor, embodied in a particular set of lived conditions; theirs is a law of
practices, not promises; of material transactions not abstract ideals'.
In contemporary studies of resistance and consciousness, narrative has emerged as a central
construct and method. As Ewick and Silbey contend in their essay 'Narrating Social Structure:
Stories of Resistance to Legal Authority' (Chapter 14), people interpret and explain their
actions in stories. They draw upon culturally available plots, characters, and narrative devices
to impose meaning on inchoate experience. In this sense, stories enact and construct, as they
describe, the world as it is lived and understood by the story teller. It is, thus, not surprising
that soliciting and interpreting people's stories of law and legal experience has been a core
approach to studying legal consciousness.
xxii Consciousness and Ideology
According to Ewickand Silbey, it is the narrative form, as well as the content of any particular
story, through which narratives operate ideologically. First, the ideological effects of narrative
inhere in narratives' ability to colonize consciousness. Well-plotted stories cohere by relating
various (selectively appropriated) events and details into a temporally organized whole.
The coherent whole, the configuration of events and characters arranged in believable plots,
preempts alternative stories. The events seem to speak for themselves. Narratives also sustain
power relations to the extent that they conceal the social organization of their production and
plausibility. Narratives embody general understandings of the world that by their deployment
and repetition come to constitute and sustain the life world. Yet because narratives depict
specific persons existing in particular social, physical, and historical locations, those general
understandings often remain unacknowledged. By failing to make these manifest, narratives
draw on unexamined assumptions and causal claims without displaying these assumptions
and claims or laying them open to challenge or testing (Ewick and Silbey, 1993).
In 'Narratives ofthe Death Sentence: Toward a Theory of Legal Narrativity' Fleury-Steiner
examines the narrative strands that appear in the stories about their punishment decisions
told by jurors in death penalty cases (Chapter 13). In cases involving black defendants, white
jurors created cultural distance from the defendant through the stories that they fabricated.
Emplotting a number of hegemonic racialized discourses and personal experiences, jurors
distance themselves from the defendant. Black jurors also relied on stories to challenge what
they perceived to be racist judgments by their fellow jurors. Thus, Fleury-Steiner reveals the
role of narrative in the judging process and how 'stories give meaning to actor's identities
and in tum how such identities give meaning to law as a site for competing hegemonic and
subversive narratives' (embedded quotes removed).
The recent focus on law and everyday forms of resistance has provoked some criticism
from socio-legal scholars (see Handler, 1993). The critics have claimed that scholars overplay
the significance of such acts or, even worse, in studying acts of everyday resistance that they
are 'celebrating' what is, in reality, powerlessness. In responding to such criticism, Ewick
and Silbey suggest that stories of resistance- as opposed to the act of resistance- become a
means of extending temporally and socially the effects of such acts. By understanding social
action to be organized according to various structural conditions (for example, hierarchies,
roles, time, space), would-be resisters appropriate these selfsame conditions to destabilize
institutional authority. While their immediate efforts may have only minimal or limited
effects, the subsequent stories of resistance become part of a shared body of knowledge about
how social structure works. These stories are counter-hegemonic insofar as they expose that
unexamined 'ground' that structures the distribution of power, thus enabling challenge and
contest.
The volume ends with an essay about blue jeans, an appropriate subject for a discussion
of law and the everyday. Calavita writes about an Italian high court opinion that overturned
a rape conviction on grounds that the victim was wearing blue jeans, which, according to the
court, cannot be removed without the consent of the wearer. The Court's opinion enflamed
the nation, inviting protest, ridicule (including a 'National Blue Jean Day'), and serious
challenge from nearly everyone across the political and ideological spectrum. Calavita
offers this case and its aftermath as an example of law subverting itself, sabotaging its own
ideological principles. In offering this case for our consideration, Calavita seeks to remind us
that hegemony is not a foregone conclusion, but a contingent outcome. She underscores that
Consciousness and Ideology xxiii
law is not some epicenter of meaning and that it must confront other sources of meaning and
power, as it did in the Italian blue jean case. Finally, she illustrates that change is not always
external to social structure, but that structures often contain the seeds of their own subversion
and transformation. In making these points Calavita delivers a powerful caution to socio-legal
scholars. In our efforts to expose power, we must avoid reifying it. This caution makes such
rich empirical studies as contained in this volume all the more valuable and crucial to our
appreciation of law, consciousness, and ideology.
References
Amherst Collective ( 1989), 'From the Special Issue Editors: Special Issue on Law and Ideology', Law
and Society Review, 22(4), pp. 629-36.
M.M. Bahktin ( 1987), The Dialogic Imagination: Four Essay, University of Texas Press, Austin, TX.
M. Barrett (1980), Womens Oppression Today: Problems in Marxist Feminist Analysis, Verso,
London.
M. Billig ( 1991 ), Ideology and Opinions: Studies in Rhetorical Psychology, Sage Publications,
London.
E. Durkheim ( 1982), The Rules of the Sociological Method, edited by Steven Lukes, translated by W.H.
Halls, The Free Press, New York.
M. Foucault (1977), Discipline and Punish: The Birth of the Prison, Vintage, New York.
Joseph A. Buttigieg (ed), (1992), Adam Gramsci: Prison Notebooks, Volume I., tran. by Joseph A.
Buttigieg and Antonio Callari, Columbia University Press, New York.
J. Handler ( 1992), 'Postmodernism, Protest, and the New Social Movements', Law and Society Review,
26(4), pp. 697-731.
K. Marx and F. Engels (1970), The German Ideology, in C.J. Arthur (ed), London: Lawrence and
Wishart.
S. Silbey (1998), 'Ideology, Power, and Justice', in Bryant Garth and Austin Sarat (eds), Power and
Justice in Law and Society Research, eds., Northwestern University Press, pp. 272-308.
D. Smith (1987), The Everyday World as Problematic: A Feminist Sociology, Northeastern University
Press, Boston.
M. Steinberg (1991), '"Talkin" Class: Discourse, Ideology, and Their Roles in Class Conflicts', in Scott
G. McNall, Rhonda Levin, and Rick Fantasia (eds), Bringing Class Back In: Contemporary and
Historical Perspective, Westview Press, pp. 261-284.
Charles Taylor, ( 1971 ), 'Interpretation and the Science of Man', The Review of Metaphysics, xxv, pp.
351.
J. B. Thompson ( 1990), Ideology and Modern Culture, Stanford University Press, Stanford.
Q Taylor & Francis
Part I
in Socia-Legal Studies
Q Taylor & Francis
[1]
THE IDEOLOGY OF LAW: ADVANCES AND
PROBLEMS IN RECENT APPLICATIONS
OF THE CONCEPT OF IDEOLOGY TO
THE ANALYSIS OF LAW
ALAN HUNT*
In this paper I note the growth of analyses of law that focus upon
its ideological character and content, and I identify problems and
difficulties manifest in the ideological analysis in recent critical and
Marxist texts. The paper argues that work focusing upon the
ideological character of law realizes significant advances over that
produced by the more orthodox approaches within the sociology of
law and jurisprudence employing normative analysis. It is possible to
make ideological analysis more rigorous. The paper outlines the
elements of a theory of and methodology for the ideological analysis
of law.
I. INTRODUCTION
The application of the concept "ideology" to the analysis of
law has been one of the distinctive features of the strand of
critical legal studies that draws upon the Marxist tradition. My
objectives in this paper are:
i) to situate the "ideological analysis of law" within
contemporary Marxism, ·
ii) to locate its relevance to the current concerns of
the sociology of law and of critical legal studies,!
iii) to explore the substantive contribution of work
written under the imprint of "the ideological
analysis of law" and to identify its major variants,
iv) to show that theoretical and methodological
clarification of both the components and scope of
the ideological analysis of law is needed, and
v) to outline some elements of a theory of ideological
analysis.
• This paper was originally delivered as the George Lurcy lecture at

Amherst College, Amherst, Massachusetts, in September 1983. I would like to
thank Piers Beirne, Maureen Cain, Jeremy Cooper, Steve Redhead, David
Sugarman, and Ronnie Warrington for valuable comment and criticism.
1 For my present purpose I distinguish "critical legal studies" as a trend
of analysis that, while drawing significantly on the Marxist tradition, is
primarily identified by the political project of intervening in the scholarship
and practice of legal education.
4 Consciousness and Ideology
12 THE IDEOLOGY OF LAW
There is an extensive literature that refers variously to

"the ideology of law," the "ideological dimension of law," or
"legal ideology." Behind the apparent homogeneity of this
writing lie diverse conceptions of ideology and even. greater
diversity in the way these conceptions are used. Its effects are
regularly taken for granted when they should be treated as
problematic, and its heuristic potential for the analysis of law is
often thwarted by the vagueness and imprecision that one
encounters in probing apparently sophisticated
conceptualizations. "Ideology," like "dialectics," is all too often
invoked as an evasion rather than a solution. If the concept of
ideology is poorly used by many of those who write in the
Marxist tradition, it is hardly used at all by those who approach
the study of law from other perspectives. In the major texts on
the sociology of law, both old and new, the concept "ideology"
is noticeable by its absence. While no single concept provides a
magic key to the mysteries of law, the idea of ideology is
important in understanding legal life. There is no concept
within the sociology of law that plays the role that is given to
ideology within the Marxist tradition. Thus, the ideological
analysis of law is not only significant in its own right, but it
provides an instructive point of differentiation between Marxist
analyses of law and mainstream sociology of law.
Perhaps the closest alternatives to "ideology" within
mainstream sociology of law are the concepts "symbolic,"2 as
used by Gusfield (1963) and later by Carson (1974), and
"legitimation," as used within the Weberian ·tradition (Weber,
1966). Neither of these alternatives has, however, either the
breadth or the specificity provided by the concept "ideology." If
we aspire, as I do, to break what Trubek has aptly
characterized as "the stifling debate between instrumental
Marxism and liberal legalism" (Trubek, 1977: 553), we must
explore the potential utility of the Marxist concept "ideology,"
not to show the superiority of one tradition over another but to
advance the explanatory power of social theory in its
application to the analysis of law.
2 This paper does not discuss the concept of "symbolism" further. It is,
however, important to note the existence of important strands of work which,
drawing on the symbolic-instrumental dichotomy, have brought the focus on
the symbolic dimensions of law into increasingly close proximity with the
concerns of ideology analysis. Such an exploration would require an extended
discussion of such diverse authors as Foucault (1977), lgnatieff (1978), and
Habermas (1976).
Consciousness and Ideology 5
HUNT 13
II. MARXISM AND IDEOLOGY

We must, at the outset, recognize that a "correct
definition" of ideology cannot be discovered from a search of
Marx's texts. Marx used the concept in a variety of ways.
Sometimes ideology refers to all ideas, sometimes it refers only
to those ideas that are deemed unscientific ("false
consciousness"), and sometimes it refers to those ideas that
serve the interests of dominant classes, "class beliefs" (cf.
Williams, 1977: 66). Not only is the concept open in its texture,
but it is also multidimensional. Nevertheless, there are a
number of uses of the concept that must be eliminated because
they make a definitional assumption about the relationship
between "ideology" and "class."
My objective is to use the concept to explore the
connection between ideas, attitudes, and beliefs, on the one
hand, and economic and political interests, on the other. We
can thus ignore ideology as "Ideology," which refers only to a
systematic and totalized world view (Weltanschauung).
Consistent world views may exist, but they must be treated as
special or exceptional cases. Second, the idea that ideology
necessarily entails some sort of "false consciousness" should
also be discarded because it removes the empirically important
issue of the association between ideas and interests. For similar
reasons we should reject the view that ideology necessarily has
a class designation or derivation. For example, the idea that
"nationalism" is necessarily traceable to the interests of the
"petty bourgeoisie" is empirically problemat.ic and should be
replaced by an approach that sees such connections as raising
empirical rather than conceptual issues.
While the concept of ideology has often been misused in
the ways we describe above, there have been important
advances toward a theory of ideology in recent Marxist writing.
Our next step is to identify these advances and to relate them
to the analysis of law as ideology.3
The concept of "ideology" has played a key role for Marxist
theorists who make up the "Western Marxist" tradition that
3 To undertake this task systematically would require a thorough study

of the historical development of the Marxist theory of ideology. Much of this
work has already been undertaken with a greater or lesser degree of success;
of particular interest is the work of the Birmingham group (Centre for
Contemporary Cultural Studies, 1977), Ernesto Laclau (1977), and Larrain's
wide-ranging history of ideology (1979). The decisive intervention of Althusser
is to be found in his major texts (Althusser, 1969; 1971) and has been the
subject of critical analysis by Hirst (1979) and McLennan (McLennan et al.,
1977). The impact of semiology on the theory of ideology is investigated by
Coward and Ellis (1977) and Sumner (1979).
has sought to liberate Marxism from the ossification of

orthodox "Marxism-Leninism." Central to this project has
been the need to reformulate Marxist theory in a way that
avoids the related deficiencies of "economism" and
"reductionism." If social institutions and ideas are not a simple
reflex of economic or class interests and yet are linked to such
interests, a sophisticated concept of ideology is needed to
explore such linkages in a thorough, empirically grounded
manner.
It is thus no accident that the more recent development of
a Marxist theory of law, a subject that had previously received
little attention, should follow close on the heels of
developments in Marxist theories of ideology. Law is
interesting and important because it is both close to yet distinct
from the state and is, at the same time, the bearer of important
ideological values. Albrow characterizes the development
within Marxist theory as a movement "from a Gramscian
interest in politics to an Althusserian interest in ideology and
finding in law a bridge between the two" (Albrow, 1981: 127).
The main thrust of the renewed concern with ideology has
been directed towards elaborating a conception of ideology that
plays more than the epiphenomenal or marginal role attributed
to it within Marxism-Leninism. This goal reflects a political
agenda that sees the need to grapple with the persistence of
capitalism, while, at the same time, elaborating non-
insurrectionary political strategies for socialist transformation
within the advanced capitalist democracies. Theorists have
realized that to do this ideology needs to be understood in its
role of preserving and reproducing capitalist social and
economic relations. While much of the debate has often taken
an abstract and theoretical form, these real and pressing
political concerns are very much present.
As an example of the recent developments in the theory of
ideology, consider the use made of the concept of "relative
autonomy." The term "relative autonomy" refers to the partial
independence of different social elements, such as the legal,
political, and ideological, both from each other and, more
importantly, from the general interests of a dominant class.
This concept serves the interests of the new Marxism because it
acknowledges the fundamental importance of the economic
base (albeit "in the last instance") while allowing the
ideological realm to be treated as an arena of struggle that is
not simply the reflex of economic class conflict. This places a
heavy theoretical and political burden on the fragile shoulders
HUNT 15
of the concept, and despite the attractiveness of the idea of

"relative autonomy" difficult theoretical problems remain. The
primary problem is to achieve what Althusser (1969) described
as the necessity of holding on to ''both ends of the chain" at the
same time; that is, to encompass both the relative autonomy of
ideology (or law or state) and the determination of ideology (or
law or state), in the last instance by economic relations. There
are those within the Marxist tradition who argue that the
concept "relative autonomy" cannot overcome such theoretical
hurdles and that "there is no middle way" (Cutler et al., 1977: I,
172).
Nevertheless, some real and important advances have been
made during the course of the debate on ideology. These
achievements can best be illustrated if we look separately at
three major issues that Marxist scholars have explored with
the aid of the concept of ideology.
A. Ideology and Human Subjectivity

A major but insufficiently recognized thrust of the
Althusserian tradition was to develop a theory that could at
once accommodate the traditional socio-economic concerns of
Marxism and a concern for human subjectivity. While this
results in some of the most difficult and opaque discussion in
Marxist theory, one element is especially important for the
analysis of law. The human being according to the
Althusserian tradition has three "instances": as a biological
being, as a "subject," and as a participant in social relations.
For Althusser the "subject" is created by and through a range
of different discourses. For example, political discourse
produces the individual as "citizen," with its consequent images
of atomized but equal citizens existing in a common
relationship to the state. Legal discourse transforms both
human beings and social entities; for example, corporations
become "legal subjects." Legal subjects as the bearers of rights
and duties are the primary constituents of the "form of law,"
which will figure large in my subsequent discussion. The
creation of legal subjects involves the recognition of "the law"
as the active "subject" that calls them into being. It is by
transforming the human subject into a legal subject that law
influences the way in which participants experience and
perceive their relations with others. Thus, legal ideology
provides a constituent of what Althusser called the "lived
relation" of human actors (Althusser, 1969: 233). One
important implication is that we are encouraged to view law
not merely as an external mechanism of regulation but as a

constituent of the way in which social relations are lived and
experienced. This approach radically changes the role accorded
ideology in social life. Ideology is perceived not as a form of
consciousness, which is the conventional view, but as a
constituent of the unconscious in which social relations are
lived. Once this possibility is appreciated, we have in ideology a
new and powerful tool for exploring the relationship between
"the Law," legal subjects, and social relations.
B. The Determination of the Content of Ideology

Theorists have been concerned both with the generation of
specific elements of ideology and with the patterning or
structuring of these elements into more or less coherent and
integrated systems that make it possible to employ the concept
of "bourgeois legal ideology." Here my earlier rejection of the
view that every ideological element has a necessary class
designation is important. The class dimension of ideology is not
an intrinsic property of words or concepts, but instead arises
from the way in which ideological elements are combined and
interrelated. Ideologies are not to be treated "as if they were
political number plates worn by social classes on their backs"
(Poulantzas, 1975: 202). Therborn expresses this particularly
well:
[i]deologies actually operate in a state of disorder. . . .
ideologies operate, constantly being communicated,
competing, clashing, affecting, drowning, and silencing
one another in social processes of communication
(Therborn, 1980: 77, 103).
Thus, an ideology is not a unitary entity. It draws its power
from its ability to connect and combine diverse mental
elements (concepts, ideas, etc.) into combinations that influence
and structure the perception and cognition of social agents.
Colin Sumner (1979) expresses something of this approach with
his suggestion that ideologies act as grids which select, sort,
order, and reorder the elements of thought. This view of
ideology is particularly salutary in the field of legal analysis
since it counsels us not to assume the coherence and
consistency of legal discourse but to search out the resonances
of the social, economic, and political struggles that reside
behind the smooth surface of legal reasoning and judicial
utterance.
The general thrust of the concern with the determination
of ideology is the insistence that ideology is a social process that
HUNT 17
is realized in and through social relations. At the same time

ideologies have their own distinctive characteristics, the most
important of which are an internal discourse such that the
elements of an ideology are not reducible to a mere reflection
of economic or social relations. It is this internal dimension of
an ideology that semiotics seeks to grasp through the concept of
"sign" and its derivatives.
C Functions of Ideology
The third important issue within the theory of ideology
concerns the functions of ideology; attention is directed
towards the role of ideology as an essential element in the
process of legitimation and hence in the reproduction of the
prevailing social relations. This concern is particularly
pronounced in Poulantzas, who, building on Gramsci's
metaphor of ideology as the "cement" of society, proposes the
general thesis that: "Ideology, which slides into every level of
the social structure, has the particular function of cohesion"
(1975: 207). Poulantzas is of special significance with regard to
the ideology of law because his analysis leads him to the view
that juridico-political ideology is the "dominant region" within
the dominant ideology within capitalist modes of production.
From this he concludes that in capitalist societies law fulfills
"the key function of every dominant ideology: namely, that of
cementing together the social formation under the aegis of the
dominant class" (1978: 88). I do not subscribe to the view that
to speak of "function" is to lapse into functionalism; rather we
must distinguish between function and functionalism and reject
the latter. Functionalism assumes that there are necessary
functions that must be fulfilled and then proceeds to search for
the agency that realizes or fulfills each function. The
deficiency of functionalism is that functions are reified. Their
existence is assumed and all social practices and institutions
must be classified in terms of them. Poulantzas' cement
metaphor and his designation of the state as fulfilling "the
particular function of constituting the factor of cohesion
between the levels of a social formation" (1975: 44) come
perilously close to functionalism. This danger can be avoided if
we treat the metaphor as an hypothesis about the effectivity of
ideology. The concept effectivity seeks to draw attention to the
effects or results of ideology while at the same time leaving
open the issue of whether or the degree to which a possible
function of ideology is fulfilled. Thus, with respect to law, we
should abandon any a priori views about its integrative or
legitimating functions and treat them as open questions

relating to the specific effects or consequences of legal
regulation and legal ideology.
Distinguishing among these three different issues within

the theory of ideology allows us to identify the significant
advances that have been achieved in the recent debate. But
these advances have extracted their own price. The most
important price has been that in order to establish the
"specificity" (distinctive characteristics not reducible to the
economic base) of ideology, the Althusserian tradition posited
the existence of conceptually distinct "instances" of economic,
political, and ideological practices. So pervasive has this
tendency been that in many texts these conceptual distinctions
are assumed to represent real separations. But there is no
location inhabited by ideology; there is no realm of the
ideological (Jones, 1982). Nor are all social, political, and
economic institutions necessarily associated with specific
ideological practices. Much more helpful is Althusser's (1971)
suggestion of a distinction between "sites" that "produce"
ideology and those that "transmit" ideology. Certain
institutions such as the media and the university are identified
with the ideological realm because they both "produce" and
"transmit" ideology, whereas schools, the family, sports, and
the like are primarily transmitters of ideology. Applying this
distinction to legal systems, we can immediately identify both
the creation and dissemination of ideology and proceed to
investigate the extent to which these two activities are
separated.
A second deficiency within the theory of ideology is the
persistence of the reflection metaphor, by which I mean the
persistent assumption that there exists an objective social world
that is "reflected" in thought and in the process is to a greater
or lesser extent distorted. This metaphor is ubiquitous as a
means of asserting the determination of ideology by material
relations and of expressing the divergence between a "real
concrete"-that is, some objective ideology-free reality-and its
representation in ideology. This imports a dubious
epistemology derived from naive materialism. More
significantly, the metaphor has its own logic which leads to
notions of ideological "distortion" or, more seriously,
"inversion" of the real world. Thus, ideologies are discussed in
terms of their truth or falsity, which implies that there is a
social reality independent of consciousness and that thought
HUNT 19
simply corresponds to a greater or lesser extent to this given

reality. The dubious nature of the implication is never
confronted. While the idea of "reflection" raises the question
of how ideology is determined, it does not provide any
assistance in pursuing this line of inquiry. As Stuart Hall and
his colleagues comment:
As is often the case in those areas where Marxism is
not yet fully developed, the simple formulae are often
too simple, too reductive for our purposes. The idea
for example, that, broadly speaking, legal norms and
rules in a bourgeois society will reflect and support
bourgeois economic relations, . . . may . provide the
first, basic step in such a theory, but it remains, too
general, too abstract, too reductive, too sketchy (Hall et
al., 1978: 196).
The most important figure in the development of the
theory of ideology has been Antonio Gramsci. He has
profoundly influenced not only the questions asked but also the
general direction of contemporary Marxist discussions. In
particular, Gramsci's concern with "hegemony," the processes
through which the dominance of capitalist power is secured
within civil society, provides both the theoretical and political
framework for the ongoing Marxist debate. The issues raised
by the idea of "hegemony" go to the very heart of the problems
facing the Marxist analysis of law in that this concept poses as a
central issue the dialectic of coercion and consent.
The earliest Marxist writings on law, which I have
characterized as the "oppositional stage," sought to combat
conventional notions of the consensual character of law and
strove to demonstrate its repressive or coercive character
(Hunt, 1981a). In contrast, most contemporary Marxist
writings on law have sought to demonstrate and explore the
real significance and deep consequences of the dual character of
law as coercion and as consent. Not only is this attempt to
grasp and to integrate the elements of coercion and consent a
central leitmotif of Marxist legal theory but, as I have argued
elsewhere, its theorization presents major problems. Moreover,
if my argument is correct, the same difficulties are encountered
by the non-Marxist sociology of law (Hunt, 1981a).
III. THE IDEOLOGICAL DIMENSIONS OF LAW

A concern with the ideology of law is at the heart of all
recent Marxist treatments of law. In this section, I shall
examine some of this recent theoretical work in the light of the
preceding discussion. I hope to show how some of the ideas
advanced above have been fruitfully employed, and I shall

point to a number of unproductive features that remain. There
has, however, been such an explosion of Marxist, neo-Marxist,
and critical theory of law over the past few years that I am
forced to be selective. I will concentrate my attention
primarily on four recent texts.
These are The Politics of Law (Kairys, 1982a), which is
especially significant as the first collective presentation of the
Critical Legal Studies movement; Marxism and Law (Beirne
and Quinney, 1982), a collection that brings together some of
the more important of the previously published contributions
to Marxist debate on law; Reading Ideologies (Sumner, 1979),
which is the most closely related to my concerns because it
focuses on the applicability of the Marxist theory of ideology to
the analysis of law; and Marxism and Law (Collins, 1982),
which sets out to examine the total theoretical field and gives
the relationship between law and ideology a crucial role in the
attempt to set forth a general Marxist theory of law. As we
shall see, a number of the problems that arise are common to
all the texts, which in itself suggests the importance of the
issues under consideration.
A. Mystification, Distortion, and All That

The most general feature of ideological analysis is that it
starts from the proposition that there is no direct or necessary
correspondence between the realm of "knowledge" and that of
"the real." As I have already noted, the most pervasive
embodiment of the theory of ideology in Marxism is to be
found in the metaphor of "reflection." The merit of the
metaphor is that it succeeds in combining two central
propositions: (a) the known and the real are not identical, and
(b) the real is the "object" that produces or determines the
"image." The metaphor of reflection captures the most basic
feature of Marx's materialist dictum: "It is not the
consciousness of men that determines their being, but on the
contrary their social being that determines their consciousness"
(Marx, "1859 Preface"). It is thus not surprising that the
metaphor of "reflection" and its derivatives are frequently
invoked.
In all four of the texts under discussion a reflection theory
of ideology is a dominant motif. The linguistic variants are
many, but the most frequently employed are: "mirrors,"
"distorts," "illusion," "fantasy," "facade," "mystifies," and
"reifies." The problem that I wish to highlight is that these
HUNT 21
terms are used in such a way as to imply a theory about the

relationship between knowledge and its object, a taken-for-
granted "social reality.'' Propositions such as "law distorts" and
"law reflects" are used as if there were some pre-given
relationship between the real and its ideological representation.
The alternative I propose is that the nature of the relationship
between reality and its ideological representation should be
seen as "the problem," or object of analysis, without
prejudgment as to the way in which the relationship can be
captured or portrayed.
For an example of the limitations of reflection theory,
consider the essay in Kairys' collection by Nadine Taub and
Elizabeth Schneider (1982) on the role of law in the
subordination of women. Taub and Schneider argue that the
legal distinction between public and private reflects, in a
distorted fashion, an actual distinction between the
nondomestic and domestic social realms. In so doing the legal
distinction functions ideologically and "camouflages the
fundamental injustice of existing sexual relations" (1982: 124).
This readiness to attribute causality to the legal distinction
between public-private leads Taub and Schneider to ignore the
question of whether this distortion results from legal ideology
or from some other mechanism. For example, no consideration
is given to the role of other discourses concerning the family-
thus precluding, without discussion, the possibility that the law
is largely passive and merely gives effect to an ideological
separation between public-private that is produced elsewhere. 4
Now I do not hold any strong view about whether this is the
case, but I do wish to suggest that the metaphor of reflection
distracts attention from such "issues and for that reason should
not be invoked as if it were a conclusion.
In contrast, the essay by Peter Gabel on reification in
Beirne and Quinney examines the process of legal reasoning in
great detail and concludes that "reification" is a result
determined by the process rather than a pre-given necessity
(Gabel, 1982).5 In the course of this analysis Gabel makes the
important point that we need to distinguish between (a) the
processes that create the ideological characteristics embedded
4 For a stimulating discussion of the public-private dichotomy as it

relates to family law, see the article by Frances Olsen (1983), which has the
great merit, in contrast to "reflection" approaches, of isolating the complex
and shifting boundary between the public and the private and, consequently,
its tortuous history in legislation.
5 In the case of reprinted papers, which occur primarily in the Beirne
and Quinney collection, I cite the reprint rather than its original publication.
in the law and (b) those consequences flowing from law that
have a particular ideological content. With this in mind, we can
see a hitherto unrevealed distinction in the usages "mirrors,"
"distorts," etc., which are often used interchangeably. Some
terms (e.g., mirrors, reflects, reifies) have as their primary
referrent the process by which the "real" is transformed into
an ideological form (see, e.g., Gabel and Feinman, 1982) while
others (e.g., mystifies, illusion) focus on the results or
consequences of the ideological form (see, e.g., Kennedy, 1982).
Ideological analysis should separate, as distinct methodological
and expository stages, the analysis of the production of legal
ideology from the analysis of the effectivity of legal ideology.&
B. The Form of Law

It is generally agreed that the ideological character of law
can be identified at a number of different levels. I shall specify,
at least provisionally, three different levels for analysis since
this allows me to explore the interrelationship among them.
They are:
(a) the ideological content of concrete legal norms;
(b) the ideological content of what are conventionally
referred to, most explicitly by Dworkin (1978), as
"principles";
(c) the ideological content of the "form of law."
At the core of any attempt to understand ideology is the
question of its material determination. Distinguishing these
levels allows us to address the important question of whether
legal ideology is primarily the resultant of one of them. There
is an unexplored and perhaps unconscious polarization in the
texts under consideration. It is possible to identify two broadly
distinguishable positions.
The first I call Concrete Determination. This position
argues that the ideological content of law is largely manifest in
the content of specific laws, whether judicial rules or specific
legislative enactments. This position emphasizes the role of
"struggle" in the formation of legal ideology.
6 Note that the reflection theory of ideology is not the only one available
within the Marxist tradition. Another version is that derived from Marx's
application in Capital of the essence/appearance distinction. We should be
cautious about assuming a simple continuity between reflection theory and
essence/appearance theory. Frequently, these two approaches are conflated in
the texts under consideration. The further exploration of the ideological
dimension of law requires attention to the issue of Marxist epistemology and
the need to challenge the simple empiricist model of both reflection and
essence/appearance that characterizes much of the recent discussion of the
ideology of law (Hindess, 1977; Cutler et al., 1977).
HUNT 23
The second I call Form Determination. This perspective

sees in the form of law the key to law's ideological role. The
concrete level gives effect to the necessary and inescapably
general ideological content inscribed in the form of law.
Frequently, the position taken by an author arises
naturally from the object of analysis: where the object of
analysis is concrete, as with a specific statute or series of cases,
the discussion tends to focus on concrete determination
(Kairys, 1982b; Horwitz, 1982; Tushnet, 1982; Klare, 1982a;
Freeman, 1982). Where the interest is at a more general
theoretical level, form determination comes to the fore (Gabel
and Feinman, 1982; Picciotto, 1982; Poulantzas, 1978; Rifkin,
1982). But this is not a simple empirical versus theoretical
divide; some of the most powerful work operates at all three
levels (Klare, 1982b; Hay, 1982).
The distinction among the three levels of analysis not only
involves important theoretical questions, but it is also related to
political differences and debates. Marxists perennially argue
over the extent to which law can be harnessed and mobilized to
the advantage of subordinate classes or groups, a question that
Collins appropriately calls "the radical predicament" (Collins,
1982: Ch. 6). Those who give priority to form analysis typically
deny that the bourgeois form of law can contribute much, apart
from defense, to struggles against the capitalist order. As Mark
Tushnet puts it, the form of law "serves as an additional barrier
to the organisation of the under-dog to upset existing social
arrangements" (Tushnet, 1977: 102). On the other hand, those
who focus their attention on concrete determination tend to see
particular legal outcomes as the results of struggles that depend
on the balance of forces invoived. This issue is at the heart of
the important current controversies concerning the "politics of
law." There is significant disagreement among "progressives"
about the extent to which struggles over the creation and
enforcement of legal rights are politically significant and
potentially worthwhile. These questions are currently being
raised in the internal debates within the Conference on Critical
Legal Studies (Hutchinson and Monahan, 1984; Munger and
Seron, 1983; Sparer, 1984; Trubek, 1984), and they continue to
be debated in Britain under the insistent prodding of E.P.
Thompson (1975; 1980; see also Adlam, 1981; Hunt, 1981b).
Leaving aside these broader political questions, I want to
focus attention on questions concerning the form of law. An
emphasis on the form of law is attractive in that it provides an
escape route from the difficulties of instrumentalist versions of
Marxist theory, which focus on the law as an instrument of the

will of the dominant class. The form of law is seen not as a
manifestation of the will of a dominant class but as a necessary
and inevitable consequence of the very nature of capitalist
economic relations. Hugh Collins (1982) suggests that there
exist economistic and class instrumentalist versions of the
theory. In my view both the "economistic" and
"instrumentalist" trends are inherent within classical Marxism,
and they come to the fore with the ossification of orthodox
Marxism. The common problem of both variants is that of
"reductionism"; the difference is that class instrumentalism
merely adds another step in the reductive logic since class
relations are treated as directly derivable from and so reducible
to economic relations.
The discussion of the form of law in recent Marxist
literature is heavily influenced by the renewed interest in the
writing of the early Soviet jurist Evgeny Pashukanis (Beirne
and Sharlet, 1980). Pashukanis' influence has focused
discussion on the question of whether a single form of law is
characteristic of capitalist society (cf. Balbus, 1977; Redhead,
1978; Hirst, 1979; Cotterell, 1980; 1981; Warrington, 1981;
Picciotto, 1982). This discussion has typically proceeded at a
high level of abstraction, concerning itself with the general and
abstract capitalist mode of production rather than with the
situation in actual capitalist societies. Analysis at this level
views capitalism as a simple totality of exchange relations and
leads to the identification of a single form of law, the bourgeois
legal form.
If, however, the level of analysis is changed and we focus
our attention on concrete social formations (that is, historically
given societies), we need to identify more than a single form of
law. Capitalism has undergone massive changes and
development. It exists within widely different political and
state structures, and its internationalization has profoundly
affected the relations among nation states. While mainstream
sociology of law has for some time been concerned with the
phenomenon of legal pluralism (Galanter, 1981), Marxist
writers have only more recently paid serious attention to this
question (Fitzpatrick, 1983). As David Sugarman argues,
studies of the contribution of law to the development of
capitalism, from Weber (1966) through E.P. Thompson (1975),
Atiyah (1979}, Horwitz (1977), and others, can only lead to the
conclusion that
HUNT 25
there was no single "capitalist" form of law-whether

we call it contractual, commodity form or absolute
private property. It is more accurate to view each as
one of several forms of capitalist law which co-existed
over long periods, complementing and conflicting with
one another (Sugarman, 1983: 256).
What remains to be done is to identify systematically the
various forms of law and to study the general conditions
affecting their interaction.
However, the general trend in the texts we are treating as
representative of recent critical and Marxist scholarship is
either to assume a simple, single form of law or to slip between
the singular and plural. The apparently sophisticated concept
"the form of law" tends to be invoked as a rhetorical device
that points to some underlying uniformity of legal phenomena
that remains unexplored. When the form of law is identified, it
is by reference to general values or what Balbus calls "abstract
universals" (Balbus, 1977: 580). But in listing abstract
universals, the distinction between form and content becomes
blurred. If the concept of "legal form" or "forms of law" is to
advance our understanding of the relationship between law and
economy, there is an urgent need for conceptual clarification.
My proposals in this regard are modest. I suggest that
when we restrict the concept "form of law" at a high level of
abstraction to denote the logically necessary characteristics of a
legal order within a specified economic or political order, this
makes it possible and, indeed, necessary to address the co-
existence of forms of law when analyzing specific societies.
With regard to law in capitalist societies, the form of law is
characterized by (i) "reification" (separation of the juridico-
political realms from the economic), (ii) legal subjectivity
(separation of legal status from political or economic status),
and (iii) the legal subject (a human or organizational entity
vested with legal rights) (Hirst, 1979).
I also believe that the form of law has no necessary
ideological characteristic or content. Instead, certain ideological
values have, to borrow Weber's idea, an elective affinity or
homologous relationship to the legal form. Hence, values such
as individualism, equality, and private property become
universal and preponderant values under capitalism and come
to function as if they were the form of law itself. The close
association between the concept of law and these values means
that these values come to legitimate the existing forms of social
relationships. Thus, the legitimating potential of law is shared
or taken over by values the law only contingently embraces.
I have not included in my definition of "the form of law"

the much emphasized element of "formalism." I am uncertain
whether formalism inheres in the form of law or is an
ideological value preponderantly associated with law in
capitalist society. This uncertainty derives from my reflections
on Horwitz's work. What Horwitz brings out most powerfully
is the essentially contested character of formalism, a contest
between impersonal Weberian legal rationality and the class
facilitative character of the transformation of American law
(Horwitz, 1975; 1977).
Treating legal formalism as a problematic feature of the
legal form has the virtues of not universalizing the ideological
values most characteristic of law in capitalist society and of
directing attention to struggles that surround all ideological
elements. This approach reminds us that the most pervasive
values that may be subsumed under the label "ideological
forms of law" (universality, certainty, etc.) are subject to
contradiction and interact in complex ways in the course of
legal disputes. My approach alsc reflects reservations I have
about following the realist methodology of starting with legal
values and subsequently comparing them to "reality." The
viability of this position depends on the questionable
assumption that legal values have an existence independent of
the concrete legal rules in which they are embedded.
The foregoing analysis of the form of law throws into relief
an important problem which I wish to mention but do not have
the space here to pursue. The "discovery" of the ideological
dimension of law by the Marxist and critical traditions tends
towards a conceptualization of law itself as an ideological
phenomenon. The danger is obvious: the materiality of the
law-that is to say, law's real impact on real people and real
relations-tends to be ignored. In seeking to establish the
extent to which all social practices are suffused by ideology, we
must not lose sight; to paraphrase Marx, of "the dull
compulsion" of legal regulation, particularly in the spheres
where law operates relatively unproblematically to give effect
to the existing forms of social, economic, and political relations.
If we are to grapple with real world problems, we must not
retreat into idealistic theories of ideological determination.
C The Function and Effectivity of Legal Ideology

One of the most distinctive features of the contemporary
Marxist and critical trends is the powerful historical
scholarship which has been its most notable achievement to
HUNT 27
date. In Britain there has been the major impact of the project
that produced Whigs and Hunters and Albion's Fatal Tree
(Thompson, 1975; Hay et al., 1975) and Policing the Crisis, a
"contemporary history" study of the "mugging crisis" of 1972-73
(Hall et al., 1978). The latter work is of particular interest
because of its self-conscious attempt to integrate theoretical and
historical analysis. And in the United States there has been a
similar interest in revisionist legal history, spearheaded by
Morton Horwitz. These critical legal histories share a common
concern with the effectivity of legal ideology as it operates in
conjunction with the material and coercive instrumentality of
law. Douglas Hay's powerful analysis of the combined impact
of "justice," "terror," and "mercy" is a good example of work
that focuses on this conjunction (Hay, 1982).
The two most important strands present in this tradition
are best characterized by the distinction between "function"
and "effectivity." Attention to "function" yields formulations
of a general theoretical character about the role of legal
ideology at the level of either the abstract modes of production
(e.g., Althusser's "ideology secures the reproduction of the
social relations of production," 1971: 141) or, more concretely,
with respect to historical epochs (e.g., Poulantzas' "juridical
ideology written into law becomes the dominant area of
ideology in a mode of production in which ideology no longer
plays the dominant role," 1978: 88). A concern for "effectivity,"
on the other hand, leads to a focus on the causal role of legal
ideology in specific historical circumstances; e.g., Klare's
(1982a) study of the influence of judicial ideology on the
formation of labor relations in the U.S.A. before World War II.
The distinction between "function" and "effectivity" rarely
appears in pure form. Instead, we frequently find either an
oscillation between these foci of inquiry or a conflation of the
two levels. This is unfortunate. In the analysis of legal
ideology one must keep firmly in mind the different levels of
abstraction of these related but distinguishable perspectives.
Thus, it is perfectly proper to treat a possible function of legal
ideology as an hypothesis to be evaluated through concrete
historical investigation and discarded, amended, or qualified in
the movement from one level of abstraction to another. It is a
mistake, however, to treat a possible function of law as given or
proven and to use history to "reveal" the operation of this
essential or assumed function. It is equally unacceptable to
arrive through concrete historical analysis at a conclusion
concerning the effectivity of legal ideology and then to
pronounce this a "function" fulfilled by law during a particular

historical epoch.
As an illustration of the second of these questionable
procedures, consider E.P. Thompson's thesis that "the rule of
law itself, the imposing of effective inhibitions upon power and
the defence of the citizen from power's all-intrusive claims,
seems to me to be an unqualified human good" (Thompson,
1975: 266). Thompson arrives at this conclusion from his
compelling study of "The Black Act" of 1723. The Act itself
and its enforcement are interpreted as a conflict between the
"new" landowning Whig gentry and the customary rights of
farmers and forest-dwellers. Thompson demonstrates that in
the period after the 1688 constitutional "revolution," when the
structures and supports for the legal order were still weak, the
rule of law had a significant impact on the manner in which
this draconian legislation was enforced. But Thompson moves,
without further argument, from his historically specific study
to a generalization about the function of legal ideology in
modem capitalist society. 7 I have considerable sympathy with
Thompson's insistence on the contemporary significance of the
rule of law, but not with the means by which he arrives at it,
for Thompson ignores important differences in levels of
analysis.
Having clarified the different levels of analysis involved in
the distinction between "function" and "effectivity," we need to
consider the risks inherent in functionalist modes of analysis.
One such danger is the temptation to lapse into a naive
instrumentalism which posits a single dominating function
expressed, for example, in theses such as "law reproduces the
social relations of capitalist society" or "law legitimates
capitalist social relations." Such single function theses are
themselves attributable to the ideological reification of law. In
such theories law is presented as "the Law" and is discussed as
if it were a totally coherent and integrated process. A valuable
corrective against tendencies to see law in this way is found in
modern Marxist and critical legal theory: the idea of
"contradiction." This concept focuses attention on the limits of
7 The historical studies in the two collections of texts are peppered with
less serious and less controversial examples. Genovese in his otherwise very
convincing account of the role of law in the slave states asserts, as a given, the
hegemonic function of law (Genovese, 1982). In so doing he comes perilously
close to the functionalist circle of specifying a necessary function and then
showing it revealed in practice. Janet Rifkin (1982), in advancing an abstract,
necessary connection between law as hegemonic ideology and the ideology of
patriarchy, similarly builds an unnecessarily functionalist account of the rule
of law in perpetuating male dominance.
HUNT 29
doctrinal coherence and on the variable operation of different

legal procedures and institutions.
One of the most important contributions of radical legal
historiography has been to breathe life and substance into the
abstract category of "contradiction." At the outset this
enterprise involves distinguishing between internal and
external contradictions. The shift to a more empirical level of
analysis, one of the hallmarks of the Critical Legal Studies
movement, has allowed scholars to highlight the contradictory
character of legal development; and it has helped them to avoid
the pitfalls of instrumentalism. There is, however, a tendency
within critical legal studies to focus one-sidedly on either
internal or external contradictions. Thus, some work that
examines doctrinal development stresses its internal
incoherence while another strand emphasizes contradictions
arising from the interplay of classes, class fractions, and other
social and political forces as they struggle over the creation and
practice of law. Both strands of research could be improved if
they worked with a more systematic model of internal and
external contradictions.
This is not the place to develop such a model, but I want to
mention three considerations. First, with respect to both
internal and external contradictions different "levels" need to
be distinguished. Looking at internal contradictions, for
example, we can distinguish among: (a) juridical reasoning and
its ideological forms, (b) the ideologies embodied in the policy
aspects of legal doctrine, (c) different legal institutions (e.g.,
types of courts), and (d) the professional ideologies of different
kinds of legal actors. Such distinctions involve no profound
theoretical insights, but they do provide a checklist of the
sources and forces involved in the ideological determination of
law. Second, the internal and external dimensions of legal
ideology are not watertight compartments, and the interface
between the two is a significant location of contradiction.
Models of internal and external contradictions must take this
into account and allow for some permeability. Finally, I would
stress the practical significance for intervention in the politics
of law of a careful analysis of contradictions since these
pinpoint areas in which the subordinate classes have their
greatest potential for effecting change. This speaks to the
political importance of the model-building enterprise rather
than to how it should be done.
Thinking about contradictions highlights problems with
two widespread features of contemporary Marxist writings.
The first is a tendency to overemphasize the independence or

autonomy of the internal ideology of law. A clear example is
found in Karl Klare's conclusion from his study of the Wagner
Act that law-making because of the impersonal,
antiparticipatory, suprahistorical forms of thought and
procedures involved "is governed by the process of alienation"
(1982a: 168). This analysis does not give due weight to the
pressures and contradictions that constantly press upon the
judicial process and disrupt the calm of formal judicial logic in
ways that Klare's substantive analysis demonstrates. I also
question the conclusions that Klare draws from this line of
argument. His preferred alternative requires "a quest for
justice in each concrete historical setting" and the abolition of
the rule of law (1982a: 168). In my view the call for
individualized justice is not self-evidently a progressive
demand. I remain convinced that the most important lesson for
legal politics that may be drawn from our experience of "actual
socialism" in the Soviet Union and other states is the necessity
of retaining formalized and entrenched rights, the core of the
rule of law, to protect citizens and social institutions against
political usurpation by the state and the bureaucracy.
The second feature of the recent critical literature that my
analysis calls into question is what I see as an overemphasis on
the autonomy of the general ideological function of law,
variously expressed by the legitimating or hegemonic function.
Let me take as my example Colin Sumner. His analysis is in
many respects parallel to the position I have advanced, but I
believe he overstates the general function of legal ideology.
"The Law," he argues,
lies hidden beneath a heavy shroud of discourse, ritual
and magic which proclaim the Wisdom and Justice of
the Law. . . . Once this shroud is torn into tatters
that hegemonic bloc of classes and class fractions
which sustain the rule of capital is in trouble because
inequality and domination can only be justified
mystically and that is precisely the ideological function
of law (Sumner, 1979: 277; emphasis added).
Now if the ideology of "The Law" is as effective as Sumner
suggests, it is difficult to imagine how this shroud could ever be
"tom into tatters"; this is a case of pure verbal militancy. More
important is the contention that legal ideology provides the
primary justification for inequality and domination. This is, in
my view, quite simply wrong. Capitalist systems employ a wide
range of ideological justifications which are used
(a) differentially over time and (b) in different combinations.
HUNT 31
These include such important legitimating ideas as "economic

efficiency,'' "freedom,'' "democracy,'' and "national interest."
The significance of legal ideology lies in its articulation along
with other nonlegal ideological bases of legitimation. This
point is made by Sumner but then seemingly forgotten .
. . .The effectiveness of law as an ideological force, as
a means toward ruling class hegemony, depends upon
its ideological encapsulation of a consensus constructed
outside itself in other economic, political and cultural
practices (Sumner 1979: 264; emphasis added).
This point is nicely illustrated in Policing the Crisis (Hall
et al., 1978). The authors show that it was the combination of
legal ideology with other elements, including appeals to moral
consensus, the nation, and ethnicity, that made the shift to a
more authoritarian mode of governance possible. While it is
appropriate to stress the importance of legal ideology in
contemporary capitalism, we must avoid any tendency to think
that law is the only structure other than naked violence that
props up the capitalist social order. It follows that our analysis
of legal ideology, and its relationship to the production and
reproduction of hegemony, must pay close attention to the way
legal ideology is articulated in conjunction with economic,
political, and cultural ideologies.
IV. CONCLUSION
Martin Albrow in a perceptive but critical review of recent
Marxist texts on law expressed doubt as to whether "a general
critique of law as ideology can lead into the scientific study of
social relations underpinning and generating law, i.e., the
sociology of law" (Albrow, 1981: 127). I hope that the above
discussion has gone some way to demonstrate that Albrow is
both right and wrong. He is right in castigating a "general
critique of law as ideology"; but he is wrong in suggesting that
the investigation of legal ideology cannot contribute
substantially to the sociology of law.
Ideology is and will remain a difficult, slippery, and
ambiguous concept, and there is little to be gained by searching
for a "better" definition. Problems cannot be avoided, for
ideology involves issues that go to the heart of the puzzling
interrelationship between human subjectivity and social action.
Yet, handled with care, the concept "ideology" provides an
indispensable and irreplaceable tool of analysis.
If the potential utility of the concept is to be realized, it is
necessary that we attend closely to two separate but related
sets of distinctions. The first is between the concrete particular

and the concrete totality. The transition from one to the other
is not a movement from micro to macro levels. This can be
illustrated by taking, for example, the methodology involved in
the study of a piece of legislation. The concrete particular
focuses attention on the immediate or proximate influences, for
example, doctrinal developments in that area of law, the
particular "problem" addressed by the legislators, or the
internal dynamics of the commission or inquiry proposing
legislative action. The concrete totality retains the focus upon
the legislation itself but seeks to situate that process in the
context of wider economic, social, or political determinants.
Understanding the relationship between the particular and the
totality requires attention to the existence of distinct levels
within the legal framework. We need to distinguish, for
example, between the ideological elements present in the
substance of the legislation, the legal form in which legislation
is cast, and the way in which the form and substance of the law
relate to the dominant ideological features of the legal system.
These levels within the legal system are in turn related to the
different levels of social relations, which means that the next
step is to investigate the connections between "legal relations,"
on one hand, and "social relations," on the other. This involves
turning our attention from the specific sets of social relations
affected by the projected legislation to broader social forces
rooted in economic, political, and other practices and to
institutions that affect the creation and application of the
legislation.
The second set of distinctions that must be maintained is
between more abstract and more concrete conceptualizations.
The need to distinguish between levels of abstraction is a
theme found both in Marx's own methodological writings
(Carver, 1975) and in the recent methodological debate
(Echeverra, 1978; Sayer, 1979). What follows from this
distinction is that concepts must be appropriate to different
levels of abstraction. This implies that the unitary conceptions
of the "form of law" derived from an abstract conception of the
commodity relation are poorly suited to the analysis of the
"forms of law" within historically specific legal systems. More
generally, when the object of investigation is a specific legal
system, more concrete concepts are needed than those that can
be derived from an examination of the relationship among
economic, political, and ideological practices at the abstract
level of "the capitalist mode of production."
HUNT 33
The implications of these two sets of distinctions underline

one general theme of this paper: namely, that the ideological
analysis of law must be understood as operating at a number of
different levels, and that these different levels are both
conceptual and empirical.
Colin Sumner suggests a distinction between "ideology" as
basic or simple elements and "ideological formations" as
complex systematizations of ideologies (Sumner, 1979: 20). I
suggest that we can improve upon this scheme if we define
"ideological elements" as the constituents of any text or speech
act (for example, a legal norm or judicial pronouncement) but
depart from Sumner by insisting that these elements are far
from "basic" or "simple." Despite their apparent protean
quality they involve already complex determinations. Ideology
has no primary units or building blocks, for concepts do not
themselves have any necessary ideological content; this is only
acquired as they are employed in specific discourses. From this
it follows that no word, however sensitive and emotive its
connotations, has any necessary class content or implication;
"equality," "fairness,'' "democracy,'' and the other key verbal
labels only acquire ideological characteristics in their use.
I would retain Sumner's term "ideological formation" for
those phenomena that link different ideological elements. This
use allows for inconsistencies and tensions within legal
discourse but does not assume any necessary systematization.
In a legal system the degree of systematization is an issue for
empirical inquiry. Additionally, I suggest the term "ideological
form of law" to designate configurations of ideological elements
where there has been conscious systematization.
The distinctions that the three concepts defined above
allow have a significance with regard to legal phenomena which
we can illustrate by contrasting a simple conversation with the
judgment of an appellate court. While the former will consist
of "elements of ideology,'' the appellate judgment may either
involve an "ideological formation" linking discrete elements or
may achieve a more rigorous systematization as "an ideological
form of law." This makes the "reading" of legal ideology more
complex. In my view it restricts the applicability of semiotic
analysis, with its emphasis on discourses reducible to primary
units of "signs,'' because in judicial discourse there is already
present a more complex structure derived from the modes of
legal reasoning.
The second implication of my classification of legal
ideology is that we must be wary of assuming a single function
derived from an analysis of the form of law at a high level of

abstraction. This means that we should not uncritically accept
as proven conceptions of the legal order that seek to identify it
in essence as a locus of such phenomena as "mystification,"
"legitimation," or "alienation." Rather, it is likely that research
will disclose a considerable degree of variation in the function
and effectivity of different types of legal practice.
The advance of Marxist and critical analyses of law which
has been characterized by a special interest in ideological
analysis has had a dual impetus. On the one hand, there has
been a growing dissatisfaction with the methods and results of
traditional legal scholarship and education. On the other hand,
there has been a growing consciousness of the need to
overcome the limitations and weaknesses of instrumentalist
versions of Marxist theory. But the invocation of the concept
"ideology" has in its turn necessitated a deepening awareness of
both the pitfalls and potential of ideological analysis. This
essay has been directed to an exploration of some problems
posed by the use of this concept and to advancing some
suggestions for the further development of ideological analysis.
In it I have tried to stress the need for a greater theoretical
self-consciousness in employing the concept of ideology and at
the same time to underline the general shift in critical and
Marxist studies towards a more concrete historical and
empirical analysis of law.
Finally, to avoid any possible misunderstanding of the
nature of my current project, I should acknowledge the
importance of issues that I have not discussed. I have had
nothing to say about the important questions associated with
the investigation of the material or social determination of law
and legal relations. Nor have I concerned myself with the
other side of the same problem: the extent to which law and
legal regulation are themselves constitutive of social and
economic relations. The omission of these questions should not
be read as denying their importance in the analysis of law. The
issues involved in the harnessing of the concept "ideology" to
the analysis of law are themselves of sufficient importance to
merit the specific focus of this essay.
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Q Taylor & Francis
Part II
Conceptual Practices
of Ideology and Consciousness
Q Taylor & Francis
[2]
Everyday metaphors of power
TIMOTHY MITCHELL
Department of Politics, New York University
Across the different disciplines of social science, studies of power and

resistance continue to be dominated by a single, master metaphor: the
distinction between persuading and coercing. The metaphor seems as
clear as the difference between mind and body, to which of course it
corresponds. Power may operate at the level of ideas, persuading the
mind of its legitimacy, or it may work as a material force directly co-
ercing the body. Max Weber founded his sociology of domination on
this Cartesian and Kantian distinction, and the distinction colonized
other theoretical territory in which it had been originally placed in
question, including that of Marx. The metaphor survives today even in
the growing number of works that realize its limitations and formally
renounce it. 1 This essay offers a critique of the metaphor, as ·a mis-
leadingly narrow approach to understanding modern methods of domi-
nation; at the same time, by offering an alternative understanding of
those methods, it reveals the metaphor to be their unexamined pro-
duct.
There are at least two reasons for the metaphor's persistence. One
stems from the fact that it is indissociable from our everyday concep-
tion of the person. We tend to think of persons as unique self-constitut-
ed consciousneses living inside physically manufactured bodies. 2 As
something self-formed, this consciousness is the site of an original
autonomy. The notion of an internal autonomy of consciousness de-
fines the way we think of coercion. It obliges us to imagine the exercise
of power as an external process that can coerce the behavior of the
body without necessarily penetrating and controlling the mind. Power
must therefore be conceived as something two-fold, with both a physi-
cal and a mental mode of operation. This way of thinking of power in
relation to the political subject applies not only to individuals but to
any political agent, such as a group or class. Much of the recent theoret-
546
ical writing on resistance and power is intended to bring oppressed or

neglected groups to our intellectual and political attention. It does so
by revealing, beneath their appearance as anonymous masses, their
existence as genuine political subjects.3 This means they must be shown
to be self-formed, internally autonomous actors resisting an external
domination. The power to which they are subject, it follows, must
recognize their status as subjects by having the same two-fold charac-
ter.
A second reason for the metaphor's persistence is that even those who
have tried to go beyond these humanist assumptions about the political
subject, often in the footsteps of Michel Foucault, and see the
autonomous subject as itself the effect of distinctively modern forms of
power, have failed to consider something further: these forms of power
have also created a peculiar kind of world. Like the modern subject, the
world seems to be constituted as something divided from the beginning
into two neatly opposed realms, a material order on the one hand and a
separate sphere of meaning or culture on the other. No recent explora-
tion of power and resistance, even among those that question our
assumptions about human subjectivity, has managed to break with this
larger dualism. Nowhere is the dualism that opposes meaning to mate-
rial reality examined as the very effect of strategies of power, in a man-
ner that would bring to light the limits and the complicity of thinking of
domination in terms of an essential distinction between the material
and the ideological, between coercing and persuading.
The first of these two arguments, relating conceptions of power to con-

ceptions of personhood, can be illustrated by some of the recent con-
tributions to what has come to be called the "moral economy" view of
power and popular resistance. The name is taken from the work of E. P.
Thompson on the making of the English working class, both a passage
in his well-known book 4 and a subsequent article entitled "The Moral
Economy of the English Crowd in the Eighteenth Century," which
together argue that apparently spasmodic acts of popular resistance to
authority in eighteenth-century England were often in fact deliberate
responses to the violation of a social consensus that required the
authorities to maintain an adequate distribution of food in times of
scarcity, a consensus Thompson calls "the moral economy of the
poor."' The argument was taken up and extended into a general theory
of popular revolt in James Scott's influential study of peasant rebellions
in colonial Southeast Asia, The Moral Economy of the Peasant. 6 The
shared theme of these writings is that prior to the triumph of capitalism
547
common people shared an ethic based on reciprocal exchange of gifts

and services and redistribution in times of need, rather than individual
pursuit of self-interest, and that their consistent actions in defense of
this ethic, although seemingly random and unspectacular, entitle them
to "be taken as historical agents." 7
The more recent contributions to this approach are numerous and

diverse. They include for example, among anthropologists, Jean
Comaroff's Body of Power, Spirit of Resistance, a study of "implicit"
forms of resistance to the South African state among the Tshidi people
(where the distinction between physical power and mental resistance is
indicated even in the book's title); among historians, the studies of
popular resistance in colonial South Asia written by scholars associ-
ated with the series Subaltern Studies, published in New Delhi; and
among political scientists, a second and well-received study of South-
east Asia by James Scott, Weapons of the Weak: Everyday Forms of Pea-
sant Resistance.x Although these more recent studies have drawn on
ideas - including those of Gramsci, Foucault, and Bourdieu - that
undermine the "moral economy" view of power and resistance (and
indeed while continuing to invoke Thompson's work, they now avoid
his famous phrase), they continue to subscribe to it. The reason is that
they continue to examine forms of domination and resistance to bring
to light subordinate groups that can "be taken as historical agents."
In the following pages I offer a critical reading of one of these recent

studies, Scott's Weapons of the Weak. My purpose in focusing on this
book is neither to provide simply a review essay nor to suggest that it
represents a particularly egregious example of the problems I wish to
raise. Rather, I have two related aims: first, to explore through a case
study of Scott's book some fundamental weaknesses in the kind of dua-
listic language with which contemporary social science conceives of the
question of power and resistance, a language I relate critically to the
work of Bourdieu, Gramsci, Clifford Geertz, and other theorists of cul-
ture and ideology; second, to present an alternative approach to the
understanding of domination, one that not only avoids the dualism of
contemporary social scientific writing but, through an analysis of the
process I call "enframing," examines how domination works through
actually constructing a seemingly dualistic world. In a book entitled
Colonising Egypt (1988) I have developed many aspects of this argu-
ment at greater length, using historical material from the Middle East. I
do not repeat that material here, but show instead how arguments
developed from the colonial Middle East can be used to critique and
548
reinterpret the evidence gathered by Scott from a different period and

different part of the world. Moreover, by presenting this alternative
theory of domination through the critique of an influential recent work,
the relationship can be brought to light between the dualism of contem-
porary social analysis and the larger forms of dualism through which
domination is constructed.
My critique of Scott forms the first half of this article. The analysis first
draws out a contradiction in Weapons of the Weak between the argu-
ment that the exercise of power requires, or at least used to require,
what Scott calls a "symbolic" or "ideological" dimension and the argu-
ment that ideological domination never actually dominates. It then exa-
mines two ways in which the book overlooks this contradiction: by
invoking the unexpected figure of the rational peasant, and by relabel-
ing several forms of domination as something else. These forms of
domination, as a result, are excluded from the analysis of power and
resistance. I argue that both the contradiction and the resulting exclu-
sions are caused by the need to understand resistance in terms of the
problematic distinction between power as a material force and power
at the level of consciousness or culture. The second half of the article
draws on the critique of Scott to develop the two arguments introduced
above: that the problematic distinction between two dimensions of
power is required in order to grant to neglected political groups the sta-
tus of self-formed, autonomous actors; and that this distinction is espe-
cially problematic because an alternative approach to the analysis of
domination (which can be illustrated from Scott's account but is not
offered there) shows how its methods in fact create the apparently two-
dimensional world that our everyday metaphors of power take for
granted.
The two orders of domination
Weapons of the Weak is a study of power and resistance in a small rice-

growing village in northern Malaysia, which the author names "Seda-
ka." The book's declared intention is "to determine to what degree, and
in what ways, peasants actually accept the social order propagated by
elites." 9 In other words, it aims to discover whether power works by
persuading peasants' minds of its legitimacy or simply by coercing their
actions: it examines "the extent to which elites are able to impose their
own image of a just social order, not simply on the behavior of non-eli-
tes, but on their consciousness as well." 10 This distinction between
549
behavior and consciousness, body and mind, divides the two main
chapters on resistance (6 and 7) and runs throughout the book.
On the basis of a careful and richly detailed account of the life of

Sedaka, in particular the reactions of poorer families in the village to
radical transformations during the 1970s (first by new irrigation sche-
mes and seed varieties and subsequently by the introduction of combi-
ne-harvesters and the elimination of opportunities for wage-labor), the
book's answer to the question is that elites may control the outward
behavior of the poor, but not their minds. "Behind the fa~ade of sym-
bolic and ritual compliance," we are shown "innumerable acts of ideo-
logical resistance." 11 Although they do their best to drag their feet, pil-
fer and deceive, the poor find that the "realm of behavior" is where they
are "'most constrained;" it is "at the level of beliefs and interpretations"
that they are "least trammeled." 12 From this evidence it is argued that
the notion that domination operates at the level of ideology, in particu-
lar Gramsci's explanation of power in terms of "hegemony," is unhelp-
ful and indeed "likely to mislead us seriously in understanding class
conflict in most situations." The concept of hegemony ignores the abili-
ty of "most subordinate classes ... on the basis of their daily material
experience, to penetrate and demystify the prevailing ideology." u
This immediately raises a number of questions that need examining.

What is meant, first of all, by a "prevailing ideology" if there are doubts
about its ability to prevail? If subaltern classes are not persuaded by
hegemonic ideas, does power need to operate in this realm, and if so,
why? In an earlier section entitled "Material Base and Normative
Superstructure," the book argues that, "if it is to work at all," domi-
nation "requires" a normative dimension. 14 Thus there is at least a
potential contradiction between the claim that so-called hegemonic
ideologies are not hegemonic, in the sense that the poor see through
them, and the argument that normative superstructures are essential to
the functioning of authority. What is their power and in what sense are
they essential?
This part of Weapons of the Weak echoes the arguments made earlier in
The Moral Economy of the Peasant, although with an important differ-
ence. Scott's earlier book was very much a study of the "normative con-
text" of peasant life, a context said to be shaped by "the norm of reci-
procity" in the exchange of gifts and services and the "consequent elite
obligation (that is, peasant right) to guarantee- or at least not infringe
upon - the subsistence claims and arrangements of the peasantry."
550
When the peasant revolts it is because of a "violation of his rights." The

moral dimension of peasant life, in other words, was presented not as a
framework of ideological domination but as a mutually agreed system
of rights that establishes the peasant as a conscious historical agent.
"This emphasis on rights ... confers on him a history, a political cons-
ciousness, and a perception of the moral structure of his society." 15
Weapons of the Weak largely abandons this language of rights and re-
places it with the more fruitful notion of "euphemization," borrowed
from the work of Pierre Bourdieu. 16 Bourdieu's analysis of patterns of
exchange and generosity among Kabyle peasants in Algeria argues not
only that such acts of redistribution are constitutive of political authori-
ty in a pre-capitalist society (an argument previously made by people
like Karl Polanyi and Marshall Sahlins and always drawing, as James
Scott and E. P. Thompson draw, on the work of Malinowski); 17 he
further argues that to create lasting effects of domination these exchan-
ges must always disguise themselves as moral relations. Domination
cannot take place overtly. "In order to be socially recognized, it must
get itself misrecognized." To achieve this misrecognition, strategies of
social and economic subordination need to be transformed by means
of gift exchanges, marriages, feast giving, and other practices into rela-
tions of kinship, personal loyalty, piety, and generosity. "In a word, they
must be euphemized." 1x Weapons of the Weak demonstrates a similar
process at work in the village of Sedaka, showing how the dependence
of the rich on the labor of the poor has traditionally required them to
cultivate their loyalty with acts of generosity and the provision of sup-
port in times of need. "Where direct physical coercion is not possible
and where the pure indirect domination of the capitalist market is not
yet sufficient," Scott concludes, powerful local families depend upon "a
socially recognized form of domination'' achieved by the processes of
euphemization and "not simply imposed by force." 14 This, it would
seem, is the "normative dimension" necessary to the functioning of
political domination in the village. But how does this fit with the argu-
ment that power is essentially coercive since "most subordinate classes"
are in fact able "to penetrate and demystify the prevailing ideology"?
Bourdieu offers an approach to this sort of problem that Scott does not
follow. Instead of assuming an opposition between physical coercion
and the "voluntary" acceptance of an ideology. he invents one of his
wonderfully hybrid concepts, "symbolic violence." The term refers to
the contradictory or "double reality" of conduct that is "intrinsically
equivocal." It is intended to overcome the "dualistic representation of
551
the relationship between practice and ideology" by bringing to light the

ways in which, for a certain kind of society, sustained coercion "can
only take place" in the guise of a voluntary acceptance. 20 "Symbolic
violence," Bourdieu explains, is "the gentle, invisible form of violence,
which is never recognized as such, and is not so much undergone as
chosen, the violence of credit, confidence, obligation, personal loyalty,
hospitality, gifts, gratitude, piety." 21 He adds that "it would be a mistake
to see a contradiction in the fact that violence is here both more pres-
ent and more hidden. Because the pre-capitalist economy cannot count
on the implacable hidden violence of objective mechanisms, it resorts
simultaneously to forms of domination which may strike the modern
observer as more brutal, more primitive, more barbarous, or at the
same time, as gentler, more humane, more respectful of persons." 22
Weapons of the Weak handles this seeming contradiction by saying sim-

ply that although domination is not necessarily imposed by force, the
weaker party must acquiesce "if only publicly." 23 In other words it relies
on the distinction between a public (and behavioral) acquiescence and
a realm of private (and largely mental) autonomy. But if acquiescence
in the dominant ideology is feigned ("the poor ... hardly find it con-
vincing, let alone hegemonic"). what makes this ideological dimension
something essential to the exercise of power? The answer seems to be
that it no longer is essential, it only used to be. "The transition to more
capitalist forms of production" has rendered ideological domination
either ineffective or unnecessary. The book reports of the large farmers
that "the basis of their domination has been transformed. Their control,
which was once embedded in the primary dependencies of production
relations, is now based far more on law, property, coercion, market
forces, and political patronage," all of which are to be construed, pre-
sumably, as non-ideological. 24 Hence compared with their situation in
the past, the rich find themselves operating today in "something of an
ideological vacuum." They have to argue continually against "the his-
torically given, negotiated moral context of village life." 2 "
This way out of the contradiction between the necessity for ideology
and its apparent ineffectiveness leaves two kinds of problem. First of
all, the implication remains that before the "historical watershed" of the
1970s, the dominant ideology was accepted. 26 The book insists that in
the 1970s the village underwent perhaps the most far-reaching econo-
mic and social changes in its history. 27 To use evidence gathered during
fieldwork undertaken at the end of such a decade to make an argument,
not about the impact of this transformation but about the nature of
552
political domination in general, and to conclude on the basis of it that

"most subordinate classes" are able "to penetrate and demystify the
prevailing ideology" is far from convincing.
Second, even the evidence from the late 1970s, as Scott explains,
shows that an important shaping of village discourse is still at work.
Despite the changes that have occurred, the vocabulary of capitalism
remains unacceptable. Straightforward talk about property rights and
profit making "has no moral standing in village life." On the one hand
this places wealthy households at a "symbolic disadvantage," with
"material consequences," because it obliges them to choose between
their reputation in the village and the maximization of their profits.
Weapons of the Weak demonstrates the important point that hegemonic
ideologies always offer significant claims to those they are directed
against. "The desire to be thought well of, or at least not despised, is a
material force in the village made possible only by the symbolic mobili-
zation of the poor around certain customary values," a mobilization
that is strengthened, a footnote adds, by their subversive "threats of
violence and theft." 28 On the other hand the large landowners have
much more to gain from this joint mobilization around customary
values and the common avoidance of all talk of capitalism. Peasants, we
are told, rarely discuss "options that seem out of reach. The small-
holders of Sedaka, for example, do not talk about land reform," even
though they seem enthusiastic when the author raises the topic. "It was
not a subject that ever arose spontaneously." Nor is it raised by either of
the two major Malay political parties active in the countryside or by
state agricultural officials. Instead, the efforts of the poor are "more
realistically focused on the possibility of securing a reasonably tenancy
within the existing system of landownership." 29 Despite the radical
transformation of agricultural life, village politics continues to occur
"almost entirely within the normative framework of the older agrarian
system .... There is virtually no radical questioning of property rights
or of the state and its local officials, whose policies are designed to fur-
ther capitalist agriculture. Almost everything said by the poor fits easily
within the professed values- within the hegemony- of local elites." 30
Surely, then, there is clear evidence that political domination in Sedaka

still works through the shaping of what can be thought and said, by this
defining of what presents itself as "reasonable" and "realistic" and this
maintaining of an ethic of reciprocity and politeness. Even the one
attempt at organized resistance among the village poor, when the
women delayed planting rice for landowners who had introduced com-
553
bine-harvesters the previous season, was conducted obliquely, with an

almost embarrassed avoidance of direct confrontation, as demanded
by the ethics of hierarchy and dissimulation within the village, and the
challenge quickly collapsed. 31 To confine political practice and debate
within the deferential and dissimulating moral world of the village
appears even more limiting when one adds that the combine-harvesters
that now "eat the work" (and the wages) of the poor are owned by
powerful commercial syndicates in the towns, and that the scarce plots
of land that villagers rent are now mostly controlled by large owners
living outside the village. 32 In addition, even landowners within the vil-
lage are now supported by the coercive external forces of the state. The
"element of fear" that results, especially a fear of the "ever-present pos-
sibility of arrest at the whim of Bashir," a powerful landowner in the
village closely connected with the ruling party and its security ap-
paratus, "is present in the minds of many villagers .... It structures their
view of the options open to them." 33
Weapons of the Weak is aware of the importance of the ways in which

local views are structured by such hegemonic effects, and in fact their
detailed description is part of the richness of the work. Rather like a
villager in 'Sedaka, however, the book appears to move obliquely,
adopting a series of strategies to avoid confronting these effects di-
rectly. The strategies are of two sorts: to admit that these effects amount
to what is often meant by hegemony but then sidestepping them by
insisting on a much narrower field of meaning for the term, at the same
time presenting us outside this narrowed field with the unexpected
figure of the rational peasant; and to relabel and disguise hegemonic
effects under the heading of "givens," or "obstacles to resistance." I
illustrate each strategy, and then argue that what motivates these eva-
sions is the need to sustain a distinction between the two orders of
domination.
Evading hegemony
The concept of hegemony is repeatedly defined so as to be too narrow

to fit the evidence from Sedaka. First, it is confined to the sense of
domination at the level of ideas, which is not the way Gramsci uses the
term. Hegemony, in Gramsci's writings, refers to non-violent forms of
control exercised through the whole range of dominant cultural institu-
tions and social practices, from schooling, museums, and political par-
ties to religious practice, architectural forms, and the mass media. 34 In
554
his discussion of Gramsci, Scott admits that "hegemony, of course, may

be used to refer to the entire complex of social domination. The term is
used here, however, in its symbolic or idealist sense, since that is preci-
sely where Gramsci's major contribution to Marxist thought lies." 35 In
other words, the book emphasizes only one aspect of Gramsci's work
in order to make the notion of hegemony fit the terms of the question
opposing "behavior" to "consciousness." Next, this symbolic sense of
the term is further narrowed by equating it with the notion of consen-
sus. "Put bluntly," the book says, "the core assumption of the case for
hegemony and false consciousness ... is that, to the extent dominant
classes can persuade subordinate classes to adopt their self-serving
view of existing social relations, the result will be ideological consensus
and harmony." 36 Consensus, however, is significantly different from
Gramsci's term consenso, which refers primarily to the "consent" given
by exploited groups to their exploitation. 37 The consent reduces the
need for the use of violence against them, but may or may not produce
consensus in the sense of harmony. Narrowing the meaning of hegemo-
ny to refer to the production of such harmony, Weapons of the Weak
can show easily enough that in Sedaka it cannot be found. Subordinate
groups in the village use the vocabulary of the hegemonic discourse, for
example its notions of charity and mutual assistance, to make modest
but persistent claims against those who exploit them.
Elsewhere the possibility is considered that these observations might

support a "more modest view" of hegemony, as the power "to define
what is realistic." But the possibility is passed over with the comment
that hegemony would then no longer mean the power to create a con-
sensual view of what is just, but simply the ability to shape the villagers'
"more or less rational understanding" of what is practical.38 This pre-
sents two problems. On the one hand, the book has already made clear
that the "legally enforced system of private property," for example, is
accepted as a "natural" fact, something significantly different from a
"rational understanding" of the impracticability of changing such facts
(indeed the book admits - but only in a footnote - that this sort of
acceptance might amount to "false consciousness"). 39 On the other
hand, to avoid having to construe the power to define what is practical
as evidence of hegemony, there now appears the phrase "more or less
rational." The phrase rescues the political actors of Sedaka from any
hegemonic confinement by endowing them with a faculty of reason that
is not shaped by the possibilities of their political and social context,
but stands outside that context, "rationally" understanding - and then
consciously resigning itself to - its limits. So the argument for hegem-
555
ony is refuted by a final resort, "more or less," to the figure of the ratio-
nal peasant (indicating how much the moral economists share in com-
mon, for reasons we will explore, with some of their supposed oppo-
nents, such as Samuel Popkin).40 It hardly needs pointing out, however,
that resignation to the fact of private landownership is only "rational"
for a given community because of a certain configuration of historical
and political forces, and a certain assessment of those forces. Even
assuming that these villagers go through the strange process that capi-
talist societies call rational decision-making, with its constructions of
alternative artificial futures, its reduction of life's complexities to a
series of isolated variables, and its ideology of the sovereign individual,
the rational is never something calculated in a manner that is context-
free.41 The calculation will always depend on estimations and supposi-
tions that are the effect of a set of hegemonic relations.
To employ the figure of the rational peasant, Weapons of the Weak is

obliged not only to assume such a context-free rationality, but also to
provide some of these estimations. The argument that choosing petty
resistance rather than direct confrontation is the result of a rational
decision depends not only on an evaluation of the situation in Sedaka
but on a general historical estimate of where peasant interests lie. It is
quite possible to disagree with Scott's estimates and reinterpret his evi-
dence. Christine White, for example, points out that "the. tricks of
adding stones, straw, etc. to increase the weight of the landlord or the
tax collector's share of the harvest can perhaps give peasants the illu-
sion of having more power and manoeuverability than is actually the
case - that is, these ineffective but psychologically satisfying forms of
resistance could in fact contribute to false consciousness, blinding
people to the painful reality of the extent of their powerlessness and
exploitation." 42 Weapons of the Weak is able to disagree with such nega-
tive assessments of petty resistance (although it concedes- again, only
in a footnote - that to the extent that such resistance actually reinforces
the larger system of subordination, "the case for ideological hegemony
is strengthened") 43 in part because it begins with the assertion that the
alternative of large-scale revolt is "a mixed blessing for the peasantry,"
given the fact that a successful revolution "almost always creates a more
coercive and hegemonic state apparatus," which is "often able to batten
itself on the rural population like no other before it." 44 My point is not
so much that many peasant households in places such as Algeria, Cuba,
Egypt, and Nicaragua might disagree with this comparatively positive
assessment of the old social orders they helped overthrow, but that
assertions about what is practical and therefore rational in peasant
556
rebellion are always situated interpretations of historical and political

experience. 45
The book rejects the concept of hegemony, then, by arguing that the
term implies some consensual and "internal" acceptance of things,
whereas the peasants of Sedaka - and perhaps subordinate groups
everywhere - exhibit only an external, rational decision to conform
rather than rebel. "The conformity of subordinate classes rests pri-
marily on their knowledge that any other course is impractical, dange-
rous, or both." 46 Invoking this rational choice and the unproblematic
kind of knowledge on which it depends ascribes their failure to rebel
not to any hegemonic shaping of consciousness but to the direct reali-
ties of coercive force. "It is in the immediate interest of most poor villa-
gers to uphold the official realities in nearly all power-laden contexts,"
the book concludes.47 In other words, the narrowing of the definition of
hegemony combined with the device of the rational peasant transform
the rich details of hegemonic domination into evidence that the poor,
although they may lose their outward physical freedom, retain an inter-
nal mental autonomy.
The second strategy by which Weapons of the Weak deals with the evi-
dence of hegemony is by relabelling many of its effects. They are listed
under an intermediate category, neither coercion nor consciousness,
with a heading such as "givens" or "obstacles to resistance." These ex-
plain the limited nature of peasant resistance without expressly analy-
zing its limits as part of the play of power relations. The book describes
at least five such "major givens." The first is the isolating nature of the
changes that have taken place: on the one hand, they have consisted
mostly of piecemeal shifts in agricultural practice, confronting the
poorer villagers only individually or in small groups; on the other, they
have tended to remove the poor from the productive process rather
than increase their exploitation, so that sites of potential conflict - over
such things as rent payments or the distribution of the harvest - have
been simply eliminated.48 Second, there is the complexity of class con-
flict in the village, with no simple distinction to be found between the
landless and the landowners. Both rich and poor may rent in plots of
land, small landowners (or their children) may work other plots as
laborers, and these laborers may find it economical at the same time to
rent combine-harvesters for their own plots. The absence of "a decisive
single cleavage" along class lines militates against collective action. The
absence is complicated by other divisions and alliances that cut across
class, such as relations of "kinship, friendship, faction, patronage, and
557
ritual ties." Almost all of these, we are told, "operate to the advantage
of the richer farmers by creating a relationship of dependence that
restrains the prudent poor man or woman from acting in class terms"
(and, one could add, in gender terms). All this is even more true of
links beyond the village, where personal ties are formed by kinship
rather than by class.49 The third "obstacle to resistance" is that the most
readily available response to oppression and economic hardship is to
leave the village and look for work elsewhere. A few find permanent
jobs on rubber and oil palm plantations, in factories, on building sites,
or as domestic servants; the majority find only temporary work as con-
tract laborers and must leave their families behind in the village, de-
prived of the household head and marginalized in village politics. The
fourth "given" is "repression and the fear of repression." Attempts to
sabotage the combine-harvesters and boycott those who used them, for
example, occurred in "a climate of fear generated by local elites, by the
police, by the 'Special-Branch' internal security forces, by a pattern of
political arrests and intimidation." Fifth and finally, there is "the day-to-
day imperative of earning a living," the process of personal and house-
hold survival that Marx calls "the dull compulsion of economic re-
lations." Although not ruling out petty resistance, this economic com-
pulsion "sets limits that only the foolhardy would transgress." 5°
Listed in this fashion as "obstacles" to resistance, these five sets of fac-

tors are conceived as fixed limits rather than modes of domination.
This corresponds, of course, to the peasants' own experience of them.
Yet other factors experienced in this way, in particular the moral lan-
guage of the village, are carefully analyzed as part of the mechanism of
power. It would seem appropriate to do the same for these five.factors.
For example, when social cleavages between landowners and the land-
less are bridged by ties of kinship, this is no coincidence. Kinship is not
something "given" that happens to work as an obstacle to resistance,
but another of those strategies of euphemization by means of which
relations of dependence and exploitation disguise themselves, as they
must, in this case in the form of family ties. When the system of poverty
installed in the village forces families to send the household head in
search of casual employment in the cities, this too is not something
given but a mode of operation important to the success of large-scale
capitalist agriculture. When combine-harvesting eliminates the sites of
face-to-face political struggle this is not simply an inevitable side-effect
of mechanization but an answer to the urgent need for more efficient
and cost-effective forms of exploitation in the rural areas of the Third
World, an integral part of the combine's profitability. When the "dull
558
compulsion of economic relations" inhibits rebellion this is not a

restriction imposed by poverty or lack of opportunity but, as the phrase
implies, the careful effect of a determined set of relations. Their parti-
cular arrangement manufactures this compulsion, again not as a side-
effect but as an internal aspect of their functioning. Finally, when one
finds a "climate of fear" generated by the state security apparatus in
cooperation with the large landowners, this is not just an obstacle plac-
ing limits on "the range of available options." It is a disciplinary
mechanism so pervasive and yet largely so unseen that the ordinary
individual is persuaded to become involved in the continuous monitor-
ing of his own actions. As Foucault puts it, "he inscribes in himself the
power relation" and "becomes the principle of his own subjection." 51
If, as the book makes clear, the moral language of the village is not just
an obstacle to rebellion but a functioning part of the system of domi-
nation, then all these other "obstacles" surely deserve to be analyzed in
the same way. Why, in that case, are they treated differently in Weapons
of the Weak, as a collection of so many "givens"? The reason for this
second strategy, I think, is the same as the reason for the first (thenar-
rowing of the concept of hegemony and the positing of a rational peas-
ant), as well as for the original contradiction (between the need for
ideology and its apparent ineffectiveness), which both strategies are
attempting to evade. It lies in the fundamental question to which the
book is addressed. As we saw, the book's aim is to discover whether
domination is exercised in "the realm of behavior" alone, or "at the
level of beliefs and interpretations" as well and it takes for granted this
distinction between a behavioral and a mental realm. 52 The factors
listed and left aside as obstacles are effects of power that do not easily
fit such a distinction. Kinship strategies, for example, clearly belong to
the "realms" of both behavior and belief; a mode of domination that
operates by transforming relations of subordination into family ties
works upon the physical body, determining how people eat, sleep, work
for one another, and reproduce, and yet these practices are inseparable
from the shaping of ideas, being the source of identity, loyalty and
emotion. The obligation to leave the village in search of casual labor is
a coercion that shapes one's view of the world as much as one's place in
it. The "dull compulsion of economic relations" operates at the level of
such relations, which are equally practical and ideological. Even the
extreme case of direct repression fails to fit within the distinction be-
tween physical and mental modes of power: Weapons of the Weak
phrases its fundamental question by asking about "the relative weight
of consciousness, on the one hand, and repression (in fact, memory, or
559
potential) on the other" in a system of domination. 53 Consciousness,

the mental realm, is placed in opposition to modes of domination that
are not purely physical, it turns out, but include the "memory" of past
repression and an anticipation of "potential" repressions, both aspects
of consciousness. This is no accident of phrasing. Memory and antici-
pation are not something ancillary to the working of so-called direct
repression but part of its every operation. No matter how far one rea-
ches back, away from memory or consciousness or culture in the direc-
tion of a purely physical dimension of power, this physical realm will
turn out to consist of an inseparable mixture of what we insist on think-
ing of as the separable realms of behavior and consciousness.5 4
Meaning and reality?
A close reading of Weapons of the Weak has brought to light the limi-
tations of founding the analysis of modes of domination on the distinc-
tion between a realm of consciousness or culture and some purely
material or physical realm. But there is a larger argument to be devel-
oped. On the one hand, I want to show that this problematic mental/
physical dualism is the product of humanist assumptions about politi-
cal agency, which in turn it seeks to reproduce. On the other hand, I
argue, the dualism and the accompanying humanism seem natural to us
because they coincide with the apparently two-dimensional order of
the world itself. It is through the creation of what appears to us as the
larger binary order of meaning versus reality that the effectiveness of
modern forms of domination is to be understood.
The more simple mind/body dualism of the behavioral approach to

social analysis, which is still especially persistent in political science
and therefore in accounts of power and resistance, has of course been
criticized over the last two decades or more, in particular by the inter-
pretivist theories of social analysis put forward by scholars like Charles
Taylor and, most notably, Clifford Geertz. 55 My own arguments can
best be introduced by showing how interpretivist approaches - and a
similar critique could be made of other kinds of critical theory, inclu-
ding Marxist and post-Marxist writings 5 6 - ultimately fail to historicize
or even put in question the larger opposition between meaning and rea-
lity that seems so obvious to the modern world.
Interpretivist theories have argued against the view that sees culture or
political consciousness as a private, internal realm of meaning or belief,
560
opposed to a public world of observable behavior. Social interaction,

Taylor and Geertz point out, is itself meaningful, for it depends upon
the continuous interpretation of what others' actions mean. These mea-
nings are not something private, but publicly shared understandings
that constitute, in Geertz's words, "a multiplicity of complex conceptual
structures" or public "frames of meaning" in terms of which particular
actions are "produced, perceived and interpreted." Culture, it follows,
is "ideational" without existing "in someone's head" and "unphysical"
without being "an occult entity:' 57 The common metaphor used to
evoke the public and yet not-quite-physical nature of this realm of
meaning is to liken it to a written text. The best way to outline a critique
of this approach is to try and bring to light the problematic assumptions
about meaning versus reality or structure versus practice embodied in
this simple metaphor of the text. 5 s
One way Geertz explains what it means to think of culture or social

meaning as a text is by introducing, as a further metaphor, a special yet
"nicely illustrative sample of culture" - a Beethoven quartet. It is with
this further metaphor that we will have to begin. "No one
would ... identify [the quartetJ with its score," Geertz suggests,
"nor ... with a particular performance of it or with some mysterious
entity transcending material existence." Rather, the quartet is "a tem-
porally developed tonal structure, a coherent sequence of modeled
sound - in a word, music." 59 Such an understanding of music, I would
argue, is a peculiarly western one; and, unproblematic as the metaphor
may seem to us, in the end commits us to believing in something mys-
teriously transcendental.
It can be shown, as I have argued at length elsewhere,60 that to conceive

of music - or texts, or cultural/ideological forms in general - as an
abstract structure or model, endowed with a non-particular and un-
physical being, existing somehow beyond any "particular performance
of it," that is, beyond any particular practical or material occurrence, is
ultimately to take for granted a quite mysterious, elusive, and transcen-
dental effect. Its elusiveness begins to become apparent when one cea-
ses adding metaphor to metaphor and starts trying to pin down the
nature of this "unphysical" entity. It turns out to be an effect created
only out of particular performances, arrangements, and practices. The
distinctive nature of the modern "world-as-exhibition" in which we live
is that more and more of social life has been so arranged that we mis-
take these effects of certain coordinated practices for the existence of a
561
distinct metaphysical realm of structure or meaning that stands apart

from what we call material reality. 61
In the relatively simple case of western classical music, for example,

these would include a whole series of distinctive techniques - including
methods of musical notion, the cult of the composer, the apparatus of
criticism and musical scholarship, and the theatrics of performance -
that cumulatively conjure up the unphysical effect of the musical work.
By contrast, there are other musical traditions, those rooted in the
complex arts of improvisation, whose methods do not create this effect
of a composer and his "work," or of the work as a text-like structure
that can be considered to have an existence or nature apart from the
repeated and yet always differing performances. A similar argument
can be made regarding written texts. I have described elsewhere a lite-
rary tradition other than our own, that of the pre-colonial Arab world,
which did not share our naive conception of the text as an "unphysical"
entity that somehow exists apart from the "physical" process of its oral
or written repetition. In fact Arabic scholarship was preoccupied with
the arts of continuously recreating written works through repeated
recitations and copyings. The text existed and survived only in its
always differing performances.62
My argument, then, is that the conception of a people's culture or polit-

ical consciousness as a text employs a problematic and distinctively
modern notion. However much the cultural text ·is said to "find ar-
ticulation" in "particular performances," it is assumed to enjoy a sepa-
rate nature as an unphysical "structure" or "frame of meaning." The dis-
tinction between particular practices and their structure or frame is
problematic not simply because it may not be shared by non-western
traditions but because, as it is the purpose of this essay to argue, the
apparent existence of such unphysical frameworks or structures is pre-
cisely the effect introduced by modern mechanisms of power and it is
through this elusive yet powerful effect that modern systems of domi-
nation are maintained.
There is a second, related problem with the dualist understanding of

meaning or ideology illustrated by the metaphor of cultures as texts,
which must be addressed before considering further the question of
frameworks, namely the problem of agency. Just as the corresponding
western conception of music ties the work to the authority of a com-
poser with a proper name, whose intention supposedly governs all par-
562
ticular performances and yet survives apart from them, this view of cul-
ture or ideology as a text-like entity existing apart from a material base
implies a sovereign subject (individual or collective) whose intention is
the author of the cultural text. "Our formulations of other people's
symbol systems must be actor-oriented," Geertz writes. That is, they
must be "cast in terms of the construction we imagine [those people] to
place upon what they live through." 63 This constructed text can then be
construed as "a story they tell themselves about themselves." 64
Although the interpretive theory of culture rescues us from the closed
behavioralist world of private beliefs motivating public actions, its
notions of text and authorship keep us in a world of subjects who
always author their own collective narratives and whose cultural identi-
ties are thus unique and self-produced. Built into the theory, therefore,
is the latent notion of a subjectivity or selfhood that pre-exists and is
maintained against an objective, material world, and a corresponding
conception of power as an objective force that must somehow penetra-
te this non-material subjectivity.
This conception could be illustrated from almost any recent account of

power and resistance, whether the theoretical inspiration is behavioral-
ist, interpretivist, Gramscian, or any other. O'Hanlon's sympathetic but
critical reading of the Subaltern Studies work on resistance to colonial
rule in South Asia, for example, where the strongest theoretical influ-
ence is that of Gramsci, shows how assumptions of this sort have
tended to govern that research. 65 Here I illustrate the problem by re-
turning to Weapons of the Weak, and exploring how political agency is
constructed in terms of the distinction between a power that operates
at the level of objective behavior and power in the realm of individual
or collective consciousness.
In the first place, this distinction is linked with a series of other opposi-
tions: material versus ideological, actions versus words, observable
versus hidden, coerced versus free, base versus superstructure, body
versus spirit. Weapons of the Weak and much of the other recent litera-
ture on power and resistance construct their objects of study out of
these parallel tropes, each of which is dependent on all the others.
These correspond to a theory of domination that understands power as
something originally and essentially behavioral or material, which
seeks to extend itself and work more economically by producing effects
that are cultural or ideological. This way of thinking about power cor-
responds in turn to a certain conception of the human person. In fact it
563
is one demanded by the desire to make the discovery of a self-formed

and autonomous personhood the end point of the analysis.
The Moral Economy of the Peasant, James Scott's earlier study of pea-
sant resistance, ends with a paragraph that expresses this desire, which
Weapons of the Weak is to take up. "It is especially at the level of cultu-
re," the earlier book concludes,
that a defeated or intimidated peasantry may nurture its stubborn moral dis-
sent from an elite-created social order. This symbolic refuge is not simply a
source of solace in a precarious life, not simply an escape. It represents an
alternative moral universe in embryo - a dissident subculture, an existen-
tially true and just one, which helps unite its members as a human communi-
ty and as a community of values. In this sense, it is as much a beginning as an
end.60
Weapons of the Weak is an attempt to discover and describe such a real

place, an embryonic moral universe, a beginning or point of origin, a
site of originality, justice, and existential truth. The site is given the
name Sedaka, a Malay word of Arabic origin whose usage suggests
generosity or social justice- but whose original meaning, it so happens,
is "to speak the truth."
Having deliberately reduced, as we have seen, many of the more com-

plex modalities of power to the status of givens or "background;' and
shown how dominant groups control the villagers' visible, "onstage be-
havior" (the theatrical metaphor erects an apparent artificiality essen-
tial for creating a contrasting sense of something unproblematically
authentic), the book moves "behind the scenes" and records, "back-
stage where the mask can be lifted," a few lines of what it calls "the full
transcript" of peasant discourse.67 The author does not claim access to
this "unedited transcript of subordinate classes" in its entirety. He
admits, for example, that the village poor told him almost nothing
about religion, even though it appears that the major form of under-
ground political opposition among these Malaysian villagers takes the
shape of "shadowy" Islamic organizations with many thousands of
members, two of which were banned during the first year of the
author's stay in Sedaka.6 x (The implications of this silence are left unex-
plored, as of the fact, mentioned in passing, that the author was living
in the house of by far the largest and richest landowner in the village, a
position that must surely have shaped his discussions with the poor, no
matter how much they took him into their confidence.) 69 Nevertheless,
564
Scott clearly makes the claim that there is such a text, such an unedited
original, such an inner site of authenticity and truth - "that small social
sphere where the powerless may speak freely." 70
"Power-laden situations are nearly always inauthentic," the book ex-

plains. What it hopes to reveal in this "small social sphere" is a place
where the play of power does not penetrate, where discourse becomes
authentic. It seeks the voice of an "author" in the problematic, idealist
sense discussed above, a collective self that is the author of its own cul-
tural constructions and actions, constituting a "beginning" or point of
originality that is embryonic, initially autonomous, and genuine. In this
way it hopes to uncover a site of "existential truth." To reveal the nature
of power, it is assumed, one must oppose to it a pre-existent self and
truth, to which relations of power are wholly extemai.To do justice to
the victims of inequality and domination in the modem world one must
prove, in E. P. Thompson's words, that they can "be taken as historical
agents," and the means of establishing them as historical agents is to
discover their authenticity, their original autonomy. 71 The consequence
is an essentialized notion of the subaltern, of the subject in general and
its self-created mentality, and a theory of power that accepts without
question the dichotomy between the material and the ideological, a
power that coerces and places limits on people's options, rather than a
power that works, among other things, through creating truths and sub-
jects and sites of apparent autonomy.
Sedaka, one might say in summing up the argument so far, names a de-
sire for the authentic, and it is this desire that subverts the logic of
works like Weapons of the Weak. It is this desire that disguises power
r;elations as a list of givens, conjures up the figure of a rational peasant
who stands outside the field of hegemonic effects, and elides the impact
of historical transformation by developing general theories of power
and resistance from evidence gathered at the end of the most pro-
foundly dislocating decade in a people's history.
Unphysical frameworks
I now want to tum to look at this historical transformation more close-

ly, and to trace in it the appearance of those "unphysical frameworks"
first mentioned above in the discussion of Clifford Geertz. The appear-
ance of such frameworks, I argue, is the elusive yet powerful effect
through which modern systems of domination are maintained. This
565
argument was developed through a study of political and social trans-

formation in colonial Egypt, 72 but I want to show here how the same
analysis of modes of domination can be made through a reinterpreta-
tion of the material Scott presents on Southeast Asia.
Weapons of the Weak offers a very rich account of how large landow-
ners, with the intensification of large-scale capitalist agriculture in
Malaysia, are becoming increasingly dependent on what we call the state,
while their dependence on the labor and ideological acquiescence of
the poorer villagers decreases. The state itself, Scott argues, has never
needed the latter's ideological acquiescence, at least in the twentieth
century; not because its power relies solely on physical or economic
coercion, but because the majority of villagers are "irrelevant" to its
appropriation of surplus rice, given that three-quarters of the region's
marketed paddy is produced by the richest eleven percent of its cultiva-
tors. One can find several discrepancies in this line of argument. The
production figures, first of all, are from the late 1970s, after the intro-
duction of new seed varieties and a second growing season had increa-
sed yields of rice by more than fifty percent.73 State regulation,
moreover, has for a long time played a role in agricultural life, in parti-
cular through fixing low prices for rice so as to facilitate feeding and
pacifying the urban population - resulting in rural protests on more
than one occasion.74 Price controls affect not only the income the poor
receive for what little they sell, but the wages they get for planting and
harvesting the rice of the richer farmers. State regulation has also
played an active role in preventing villagers from switching to other,
more profitable crops, and in enforcing the grossly unequal distribution
of land, which ensures that the rich have surplus rice to market, leaving
the bulk of the rural population living below the poverty line. This un-
equal distribution can itself be seen as a state-enforced "appropriation."
Indeed the book explains at the beginning that "the state ... is now a
direct participant ... in nearly all aspects of paddy growing. Most of the
buffers between the state and rice farmers have fallen away." 75 So why
does the book subsequently insist on minimizing the relation between
the state and the peasantry?
It does so, I think, to make its central argument about the absence of
ideological hegemony more plausible. Weapons of the Weak needs to
show that an older authority negotiated within a shared moral world of
face-to-face encounters has given way to a kind of power that is essen-
tially impersonal, intractable, and remote - and thus in no particular
need of ideological support. Scott portrays the local experience of this
566
transformation in tremendous detail. I draw on these details to con-

struct an alternative account of the new forms of power. Far from being
less ideological, I argue, they operate by inventing the apparent distinc-
tion between material and ideological realms, in all its supposed sim-
plicity, that every modern theorist of power takes for granted.
The transformation in modes of power can be described, of course, in

economic, social, and political terms. It occurs in each of these spheres.
In every sphere, however, it involves what I have called elsewhere (bor-
rowing a term from Martin Heidegger), the process of "enframing." 76
By enframing I mean a variety of modern practices that seem to resolve
the world's shifting complexity into two simple and distinct dimensions.
Such practices - which I illustrate from the case of Sedaka - give rise to
the effect of a purely material world, opposed to and given order by
what now appears as a free-standing, non-material realm of meaning.
We name this realm "culture" (or the symbolic, or the ideological, or in
some contexts simply "the state") and believe it to exist, metaphysically,
as something apart from what we call the physical world. The new
modalities of power work, at least in part, by means of this binary
effect.
I should stress that in describing this world as two-dimensional, I am

not invoking the unity of some antecedent life where, as Bourdieu says
(following Weber}, the world was not yet "disenchanted"; where, as
Foucault says, words were not yet detached from things; or where, as
Marx says, the values of things were not yet detached from their uses.
Rather, it is the invention of this two-dimensionality that makes it pos-
sible to imagine such an antecedent unity, such enchantment, and such
attachment of meanings to their objects and of uses to things.
A first way of describing the transformation is that villagers find them-

selves subject to powers whose source seems .increasingly removed
from their own world. The terms of their agricultural life, Scott ex-
plains, "are now decisively set by social forces that originate far outside
the village sphere. Everything from the timing of water supply, and
hence the schedule of transplanting and harvesting, to the cost of fer-
tilizer and tractor services, the price of paddy, the cost of milling, the
conditions of credit, and the cost of labor is so much an artifact of state
policy and the larger economy that the sphere of local autonomy has
shrunk appreciably." 77 The local powers of dominant village house-
holds are not simply an autonomy being eliminated, however. They are
patterns of domination that, in typical fashion, are becoming the con-
567
duits of these· larger forces. Power relations continue to acquire their

hold over peasants' lives as something local and immediate, at work in
forms of landowning and employment, the supply of seeds and irriga-
tion water, or the demands of kinship and personal loyalty. The differ-
ence is that the articulation of these local powers into larger networks
now creates the effect of power as a system of demand that exists as
something external to ordinary life.
This articulation, moreover, takes several forms. The larger networks

are not only those of the state, but also large-scale commercial syn-
dicates and powerful landowning interests outside the village. Nor are
they encountered only in the form of persons or groups. The new com-
bine-harvesters, for example, are experienced as mechanisms of exter-
nal demand, which ignore the villagers' need for employment in the
name of an external capitalist accounting and transfer the money
previously paid as wages within the villages to the commercial consor-
tia from whom the machines are rented and the companies in Australia
and Japan who manufacture them. 78
In the second place, these new forces create an effect of fixity and per-
manence. The earlier, less coordinated forms of domination seemed
always unstable. To maintain them required the innumerable techni-
ques of euphemization, and the periodic acts of violence, by which rela-
tions of subordination were continuously created and recreated. The
new forms of domination, by contrast, appear fixed and enduring. The
negotiated and flexible modes of authority have given way to patterns
of power that seem to reproduce themselves. Weapons of the Weak
offers several illustrations of this.
The book shows, for example, how a series of relationships that were
the subject of negotiation have become determined and nonnegotiable.
Thus, the way land is rented has changed from a system of "paddy rent"
to one of cash rent. Previously tenants paid the landowner his rent at
the end of the season, after the harvest, in a quantity of the harvested
paddy (or its cash equivalent, according to its price that season). Now
most rents are required in cash in advance. So the rent can no longer be
bargained up or down on the threshing floor according to the number
of sacks of threshed paddy. The payment carries no reference to those
sacks- to the amount and value of what the land has produced. 79 The
site where competing economic needs were established and negotiated
season by season has been eliminated, replaced by a predetermined
and inflexible demand.
568
There are many similar transformations described. The price of paddy

is set by predetermined external forces, meaning government policy
and the international market, rather than by local or regional need. The
patterns of transplanting and harvesting no longer vary with the mon-
soon rains, as was mentioned, but are fixed according to an official irri-
gation schedule. The government control of milling, marketing, and the
distribution of fertilizer and credit are further aspects of this pervasive
programming of rural life. The local offices of the Agricultural Devel-
opment Authority have each spawned a Farmer's Association, through
which the larger farmers acquire a disproportionate share of credit.
Villagers are increasingly dependent on credit to purchase the large
amounts of fertilizer required for green-revolution agriculture. 8° Con-
trol of the land has become more rigid as the enormous profits of the
green revolution and combine-harvesting cause ownership to be con-
centrated among fewer families, leaving less available for rent or for
distributing as dowries to children. Marriage, as a result, has become
more difficult. 81
The fixed, self-reproducing power is also evident in a far greater con-

trol over dishonesty and delinquency, achieved with less surveillance
and supervision. Both cash rents and mechanical harvesting have con-
tributed to this more efficient exercise of power. Under the old system
of "paddy rents," Scott explains, the tenant could use a number of care-
ful ploys to decrease the owner's share of the crop, from quietly harves-
ting a little of the rice the night before the official harvest, to making
spurious claims of crop damage in order to bargain for a reduced rent,
or deliberately leaving unreaped paddy on the stalk to be collected
later when gleaning. 82 With rents for the land fixed and paid in advan-
ce, the landowner places all the risks of cultivation upon the tenant,
thus guaranteeing himself a larger profit at the same time as he frees
himself from the need to exercise any surveillance over the harvesting.
Similarly with the introduction of combine-harvesting, Scott points out,
the machine relieves the farmer of the task of recruiting laborers and
supervising them in the field. It also enables him to harvest and store
his entire crop in a single day, thus removing the opportunity for the
poor to steal an occasional sack of the harvested paddy left overnight in
the fields. 83 All such transformations in the agricultural life of the villa-
ge make its system of exploitation more effective, more economical,
more inflexible, and more permanent. Patterns of domination that
before had to be continuously established and re-established are now
built into the functioning of economic and social practices.
569
Outside the sphere of agricultural production there have been similar

increases in the efficiency of surveillance and control. A generation
ago, Scott reports, when the region was more sparsely sP.ttled and
included large areas of uncleared brush and forest, and its population
was more mobile and less actively policed, there were many groups
who escaped the surveillance and control of the large landowners and
the authorities, including bandits and rustlers now remembered as
popular heroes. Since then, the government-organized spread of irriga-
tion canals, agriculture, roads and police stations has eliminated the
places of refuge and opened up the countryside to permanent super-
vision. Today, says Scott, "all the land around Sedaka is flat and culti-
vated and the police ... are far more numerous, mobile, and well
armed."~ 4 So alongside the programming that tends to enfix rural life is
a pervasive and everyday policing. The area does not suffer from the
mass arrests and government death squads common elsewhere in
Southeast Asia or in places such as Central America. Instead there is
an Internal Security apparatus that prevents effective political organiz-
ing, and an efficient system of "everyday repression" maintained by
"diligent police work."~ 5 The result is not a system of terror but rather a
continuous effect of fear and insecurity that guarantees a relatively effi-
cient self-reproduction of authority.K 6
The frame of meaning
These various features of the new techniques I have described combine

to produce the common effect of enframing. The new modes of power,
by their permanence, their apparent origin outside local life, their in-
tangibility, their impersonal nature, seem to take on an aspect of differ-
ence, to stand outside actuality, outside events, outside time, outside
community, outside personhood. Hence they appear, not as something
given, as Scott would have it, but rather as something other, something
non-particular and unchanging - as a framework that enframes actual
occurrences. Although it is constituted, like the rest of the social world,
out of particular practices, this framework appears as somehow non-
particular and non-material, that is, as something ideal, and comes to
seem as though it were its own, transcendental dimension of reality.
Numerous examples can be found in Weapons of the Weak of this
novel, metaphysical effect.
Take, as the most straightforward illustration, the new system of rents

explained just above. One way the villagers express the difference that
570
comes with pre-paid rents is in terms of the "living" and the "dead."X 7
The old rents were carefully related to what was grown in the rented
fields, hence the name "live rents." The new rents, fixed in advance, are
"dead," no longer a part of what grows and fluctuates, but abstract,
non-living, arbitrary. This disconnection makes the rent into a scale
that stands apart, an absolute measure against which the success or fai-
lure of the harvest must now be measured. The measure is unaffected
by what it measures, like a container holding a certain contents. Rent
now appears to stand in relation to agricultural life as this inert contain-
er, this framework that is somehow of a different order from the sorts
of practice it enframes. Of course the fixing and paying of rents are
social practices like any other part of the life of the village. But the new
principle that governs them creates the effect of a life no longer made
up of interrelated practices, but rather consisting of a framework and
the practices it enframes, as though these were two different orders of
existence.
As the economy of Sedaka is converted to the use of cash, there are

several other ways in which money becomes an example of this kind of
intangible, inorganic measure of things. Scott explains that before the
economic transformation the measurement of a family's resources was
immediate and tangible. "The wealth of a paddy-growing family could
in the past have been inferred from the amount of paddy stored in the
granary." The tangibility of resources made it relatively easy for the
poor to importune their richer neighbors for loans, for which the tradi-
tional medium "was, fittingly, paddy or polished rice (beras), the basic
food staple" (not to mention the fact that by prying apart the boards of
a granary at night the poor could surreptitiously help themselves to
additional supplies). Now, however, "the widespread use of cash marks
a shift to a village in which wealth is more easily hidden." The resources
of the rich become transformed into something inaccessibly other,
something inorganic and non-material, outside the realm of what can
be borrowed, begged, or otherwise appropriated. Indeed "the poor
appear to believe that the sale of paddy for cash is, in part, an attempt
by the wealthy to avoid being importuned for loans."xx In such ways,
the surplus from the fields is converted into what seems an abstraction,
something that stands outside the play of personal relations and local
demand. Capital, which is no more than a practical set of relations,
creates the impression of a world now absolutely divided, between a
realm of the tangible and material and a realm of the abstract and
enduring.
571
When one is told that for the peasants of Sedaka, "the basic contours"
of the country's capitalist economy have become "for all practical pur-
poses a given," this should not be read, I would argue, as implying simply
an extension or redefinition of the boundaries of the natural landscape
of the village - as the word "given" implies.89 Economic forces now
appear as contours in a literal sense, like abstract lines on a map.
However much they may be taken for granted, the new economic prac-
tices create an order that seems to stand apart from the natural land-
scape, the way a map does, as a plan that gives the world a dimension of
order. Starting with strategies as everyday as the payment of rent in
advance or the selling of rice paddy for cash, the new social and politi-
cal practices all contribute to creating the effects of enframing.
These effects are not limited to the economic. "The very process of cul-
tivation," to repeat an example mentioned above, is now "largely deter-
mined by the schedule of water release fixed in advance." 90 The con-
trolling and distributing of irrigation waters are practices like any other
part of social life. But with their distance from local influence, their
regularity, and their repetitive uniformity, practices of this sort create
once again the effect of something that is not a part of social practice,
something that seems to exist outside the practical world as a program
governing particular practices. It is the effect, once again, of enframing.
Government plans and official policies, all the self-reproducing
methods of controlling and policing described above, all the new
effects of fixity, legal regulation, and structure, create this effect of the
program. The provision of what is labeled "infrastructure," such as
roads, electricity, piped water, clinics, schools, and mosques, a process
that has "touched virtually every village in the country," is a further
aspect of the pervasive process of enframing. 91
Working through the techniques of enframing, power will now appear

as something essentially law-like. It will seem to be external to practice,
as the fixed law that prescribes a code against which changing practices
are then measured. This transformation occurs, moreover, at precisely
the point when power in fact becomes most internal, most integral, and
continuously at work within social and economic practices. So it is not
simply that, as Foucault says, power inserts itself and, "arranges things
in such a way that the exercise of power is not added on from the out-
side, like a rigid, heavy constraint, to the functions it invests, but is so
subtly present in them as to increase their efficiency by itself increasing
its own points of contact."n It is that this occurs at precisely the same
moment when, and by precisely the same detailed methods as, power
572
presents itself for the first time as "law" or "the state," as though it were
somehow merely an external framework that keeps things and be-
haviors orderly.
None of this is to be understood as simply the superimposing of order

and regularity where previously there was disorder. The life of the vil-
lage and the countryside, needless to say, had its own complex methods
of order, some of which still endure. Nor is it to be understood simply
as the creation of structures or institutional frameworks where none
existed before, unless those terms cease to take for granted the prob-
lematic process of enframing, the technique that gives rise to the effect
of structure or institution - or state. What is new is not a set of struc-
tures, frameworks, or programs, but a set of practices that continuously
create the effect of structure, frame, or program, the effect of an un-
physical realm of order that stands apart from the world of practice.
This apparently separate realm seems to stand as the abstract opposed
to the concrete, the unchanging versus the changeable, the hidden ver-
sus the visible, and the ideal versus material. It follows that it appears at
the same time - like a text in relation to the real world, to reinvoke our
problematic metaphor- as a separate realm of "meaning" in relation to
"reality."
This final aspect of the transformation is perhaps the most profound,

and can be illustrated once again by particular innovations. The new
social practices include the building and running of government
schools and mosques, the provision of agricultural expertise, and the
ideological work of local party organizations. These innovations are
connected with the shrinking importance of a locally-produced imagi-
native life: village entertainments, small feasts, games, religious events,
and no doubt much else, are all becoming less frequent or disappearing
altogetherY 3 The replacement of these diverse creative and imaginative
practices by the modern techniques of education, organized religion,
government expertise, and official ideology is not simply a replacement
of local learning and cultural life with nationality regulated forms. The
new practices, unlike the old, are expressly concerned with program-
ming. Modern schooling, for example, opposes itself to life, offering a
kind of operating code or "instructions for use" to be mastered before
one takes up, so to speak, the thing itself; organized religion, official
expertise, and party ideology set themselves apart in similar ways, as
programs to govern life. Once again, like the life they program, these
methods of programming consist of nothing more than particular social
practices; but they are set up and regulated in such a way as to appear
573
to stand outside ordinary practice. They correspond to the methods of

enframing already described, all of which contribute to this impression
that life's meanings constitute a program or text that exists apart from
the practical world.
The binary world constructed by the new forms of power includes a

series of novel practices that appear to create outside the world itself a
separate realm of intentions, ideology, or meaning. The effects of ex-
ternality, fixity, and permanence achieved by the new modes of domi-
nation coincide, therefore, with the more general effect of the existence
of meaning as a distinct order of being, opposed to what it will now be
possible to call mere reality, a merely "material" world.
It can now be seen how the binary world of modern techniques of

order and domination, far from being brought to light by analyses like
Weapons of the Weak, works itself into the very vocabulary with which
we speak of power. Like most of the work of the moral economy sort,
and indeed virtually all contemporary literature on power and resist-
ance, Weapons of the Weak approaches the question of domination in
terms of an essential distinction between physical coercion and ideo-
logical persuasion. The approach is inevitably blind to the possibility,
argued in the preceding pages, that power now works through novel
methods of creating and recreating a world that seems reduced to this
simple, two-dimensional reality. It represents a way of writing in which
such two-dimensionality is merely reproduced.
As I argued in the first half of this essay, the complexities of domination

never quite fit the terms of the opposition between a physical and
mental form of power. Many forms of exploitation and control cannot
be reduced to this binary form. The attempts to make them fit seem to
arise from a desire to present certain political groups as self-formed
political subjects, meaning subjects who preserve against an essentially
physical coercion a space of mental autonomy. This binary and essen-
tializing view of the political subject is what connects the weaknesses of
prevailing approaches toward the study of power to the alternative
understanding of domination advanced in the second half of this essay.
This is because the opposition between a subject and an object-world
that this view implies depends on taking for granted the fundamental
distinction opposing an ideal realm of existence to a material realm.
The latter corresponds to the broader distinction we take for granted
between the realm of meaning and the real world. Rather than being
fundamental to the nature of power, this larger opposition turns out to
574
be a metaphor that imitates, but fails to see, the very distinction

through which modern effects of domination are produced.
Acknowledgments
Many people read and commented on an earlier draft of this arti-

cle. I am particularly grateful to Lila Abu-Lughod, Nathan Brown,
Wendy Brown, and Bertell Oilman. I would also like to thank Jim Scott
for his willingness to discuss my criticisms of his work, and for the
graciousness with which he did so.
Notes
I. For example, Jean Comaroffs study of power and resistance among the Tshidi of
southern Africa criticizes the acceptance of such "stubborn dichotomies" as the
distinction between "the symbolic and the instrumental," but her critique is limited
to showing the "interdependence" between these "two distinct orders of determina-
tion" rather than questioning the nature of the distinction. Jean Comaroff, Body of
Power, Spirit of Resistance: The Culture and History of a South African People
(Chicago: University of Chicago Press,l985), 3-4,262.
2. The political invention of the modern notion of mind or consciousness, and its rela-
tionship to modern theories of power as essentially coercive or repressive, are exa-
mined in the work of Michel Foucault, especially Discipline and Punish: The Birth
of the Prison (New York: Pantheon, 1977), and The History of Sexuality. Volume 1:
An Introduction (New York: Pantheon, 1978). I have explored this process in a
colonial context, and contrasted it with pre-modern theories of personhood, in
Timothy Mitchell, Colonising Egypt (Cambridge: Cambridge University Press,
1988). On the contrast with classical understandings of body and soul, see also
Richard Rorty, Philosophy and the Mirror of Nature (Princeton: Princeton Univer-
sity Press, 1979).
3. See Rosalind O'Hanlon's critique of studies of resistance to colonial rule in South
Asia, "Recovering the Subject: Subaltern Studies and Histories of Resistance in
Colonial South Asia," Modern Asian Studies 22/1 (1988), 189-224.
4. E. P. Thompson, The Making of the English Working Class (London: Gollancz,
1963), 59-68.
5. E. P. Thompson, "The Moral Economy of the English Crowd in the Eighteenth
Century," Past and Present 50 (1971), 79.
6. James C. Scott, The Moral Economy of the Peasant: Rebellion and Subsistence in
Southeast Asia (New Haven: Yale University Press, 1976).
7. Thompson, "Moral Economy of the English Crowd," 76.
8. Ranajit Guha, editor, Subaltern Studies: Writings on South Asian History and Soci-
ety (Delhi: Oxford University Press,1982-); James Scott, Weapons of the Weak:
Everyday Forms of Peasant Resistance (New Haven: Yale University Press, 1985).
9. Scott, Weapons of the Weak, 41.
10. Ibid., 38-9.
575
II. Ibid., 304.

12. Ibid., 322.
13. lbid.,317.
I4. Ibid., 307.
15. Scott, Moral Economy of the Peasant, 188-189.
16. Pierre Bourdieu, Outline of a Theory of Practice (Cambridge: Cambridge Univer-
sity Press, 1977).
17. Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1957 IJ944];
Marshall Sahlins, Stone Age Economics (Chicago: A1dine, 1972).
I 8. Bourdieu, Outline, I 9 I.
20. Bourdieu, Outline, I 79.
21. Ibid., I 92.
22. Ibid., I 91.
24. Ibid., 3I0-312.
25. Ibid., 184-I85.
26. Ibid., I47.
27. Ibid., 139.
28. Ibid., 234-235.
29. Ibid., 325-326.
30. Ibid., 336.
31. Ibid., 250-251.
32. See John R. Bowen, "The War of the Words: Agrarian Change in Southeast Asia,"
Peasant Studies I 4/1 ( 1986), 61.
34. See Christine Buci-Glucksmann, Gramsci and the State (London: Lawrence and
Wishart, 1980).
35. Scott, Weaponsofthe Weak,3I6.
36. Ibid., 335.
37. See Joseph Femia, "Hegemony and Consciousness in the Thought of Antonio
Gramsci," Political Studies 23/I (1975), 32-35.
39. Ibid., 49.
40. Samuel L. Popkin, The Rational Peasant: The Political Economy of Rural Society in
Vietnam (Berkeley: University of California Press, I 979).
41. On the relations between artificial futures and capitalist agricultural practices, see
Pierre Bourdieu, "The Disenchantment of the World," in Algeria 1960 (Cambridge:
Cambridge University Press, 1979).
42. Christine White, "Everyday Resistance, Socialist Revolution and Rural Develop-
ment: the Vietnamese Case," Journal of Peasant Studies 13/2 (I 986 ), 56.
43. Scott, Weapons of the Weak, 287-288.
44. Ibid., 29.
45. For Malaysian peasants, this experience might include memories of "strategic ham-
lets," "free-fire zones," and other innovations developed by an occupying British
army to suppress the long communist insurgency in post-war Malaya, innovations
that were subsequently transferred by British military advisers to South Vietnam.
Scott's assessment of Malaysians' propensity to rebel makes no mention of this his-
torical experience.
46. Scott, Weapons of the Weak. 320.
576
47. Ibid., 321.

48. Ibid., 242-243.
49. Ibid., 244-245.
50. Ibid., 246-24 7, citing Karl Marx, Capital, vol. I. (Harmondsworth: Penguin, 1970),
737.
51. Foucault, Discipline and Punish, 202-203.
53. Ibid., 40.
54. These ideas about violence are further developed in Timothy Mitchell, 'The Repre-
sentation of Violence in Writings on Political Development: The Case of Nasserist
Egypt," in Farhad Kazemi and John Waterbury, editors, Peasant Politics and
Violence in the Recent History of the Middle East (forthcoming).
55. Charles Taylor, "Interpretation and the Sciences of Man," The Review of Meta-
physics 251 I ( 1971 ), 3-51: Clifford Geertz, The Interpretation of Cultures: Selected
Essays (New York: Basic Books, 1973).
56. For example, Ernesto Laclau and Chantal Mouffe's Hegemony and Socialist Strate-
gy: Towards a Radical Democratic Politics (London: Verso, 1985) calls for a post-
Marxist abandoning of the "discursive/extra-discursive dichotomy" and the
"thought/reality opposition" ( 110). But like the work of Foucault on which they
draw. they fail to explain how and why the construction of what I have called "the
world-as-exhibition" has made these oppositions, despite their elusiveness, so
powerful and so seemingly obvious. See Timothy Mitchell, "The World as Exhibi-
tion," Comparative Studies in Society and History 31 (1989), 217-236.
57. Clifford Geertz, "Thick Description: Toward an Interpretive Theory of Culture," in
The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973), 7,
10, 28.
58. Recent criticisms of Geertz's work fault it for failing adequately to distinguish the
natives' cultural text from the interpretive text of the anthropologist (a difficulty
Geertz himself admitted from the beginning). They do not tend to question what is
meant by a text. See, for example, Vincent Crapanzano, "Hermes Dilemma: The
Masking of Subversion in Ethnographic Description," in James Clifford and
George E. Marcus, editors, Writing Culture The Poetics and Politics of Ethnography
(Berkeley: University of California, 1986) and Mark Schneider, "Culture-as-Text in
the Work of Clifford Geertz," Theory and Society 1616 (1987), 809-839.
59. Geertz, "Thick Description," 11-12.
60. Mitchell, Colonising Egypt.
61. See Mitchell, "The World as Exhibition."
62. Mitchell, Colonising Egypt, 142-154.
63. Geertz, 'Thick Description," 14-15.
64. Clifford Geertz, "Deep Play: Notes on the Balinese Cockfight," in The Interpreta-
tion of Cultures: Selected Essays (New York: Basic Books, 1973), 448.
65. Rosalind O'Hanlon, "Recovering the Subject."
66. Scott, Moral Economy of the Peasant, 240.
67. Scott, Weapons of the Weak, 48.287-288, 329.
68. Ibid., 288n, 334-335.
69. Ibid., 2.
70. Ibid., 330.
71. Cf. O'Hanlon, "Recovering the Subject."
72. Mitchell, Colonising Egypt; see also Timothy Mitchell, "The Effect of the State,"
577
paper presented at the SSRC workshop on State Creation and Transformation in

the Middle East, Istanbul, September 1989 (publication forthcoming).
73. Scott, Weapons of the Weak, 312-313.
74. Ibid .. 52, 56.
75. Ibid., 56.
76. Mitchell, Colonising Egypt, 44-48, 79, 92-94.
78. Ibid., 162.
79. Ibid., 72-73,151-153.
80. Ibid., 82-84.
81. Ibid., 237.
82. Ibid., 152-153.
83. Ibid., I 56, 269.
84. Ibid., 266.
85. Ibid., 274.
86. Ibid., 277.
87. Ibid., 104.
88. Ibid., 142-143,268.
89. Ibid., 48.
90. Ibid., 56.
91. Ibid., 54-55.
92. Foucault, Discipline and Punish, 206.
93. Scott, Weapons of the Weak. 149.
Q Taylor & Francis
[3]
THE IDEOLOGICAL EFFECfS OF
ACTUARIAL PRACTICES
JONATHAN SIMON
Over the last century there has been significant growth within
our society of practices that distribute costs and benefits to individu-
als based on statistical knowledge about the population. These actua-
rial practices like insurance premium setting and standardized testing
in educational admissions are successful largely because they allow
power to be exercised more effectively and at lower political cost. At
the same time they generate ideological effects which have the poten-
tial to transform the way individuals understand themselves and
their groups. In a 1977 case, Los Angeles Water and Power v. Man-
hart (435 U.S. 702), the United States Supreme Court considered a
challenge to the actuarial use of gender in setting employee benefits.
The case and the debates it generated illuminate the danger posed by
the ideological effects of actuarial practices to our political culture in
general, and to traditionally disempowered classes such as women in
particular. At the same time it illustrates the limitation of traditional
legal rights discourse as a means of resisting these dangers.
I. INTRODUCTION
Standardized testers ask us to blacken dots, insurance agents
ask for our zip codes and marital status, and pollsters inquire as to
which magazines we read and how many children we have. At the
heart of these circuits of testing and questioning, comparing and
ranking, are techniques that use statistics to represent the distri-
bution of variables in a population. I refer to these techniques as
actuarial, and the practices that rely on them as actuarial practices.
These practices are so familiar and banal that it is difficult to no-
tice them at all, let alone see them as central components of a new
regime of social ordering linked to myriad exercises of social con-
trol and power, e.g., hiring, admitting, campaigning, selling, sen-
tencing, and educating. Yet these practices are generating funda-
mental changes in our political culture.
I wish to thank the members of the Amherst Seminar on Legal Ideology

and Legal Process for their helpful substantive and editorial comments on my
paper. Patricia Ewick and Susan Silbey were particularly instrumental in
drawing some coherence out of my original draft. The ideas presented here
have been developed through conversations with many friends and teachers
including: Marianne Constable, Francois Ewald, Sheldon Messinger, Robert
Post, Paul Rabinow, and Kim Schepple. I owe a special debt to Susan Lehman
who forced me to refine my ideas and contributed some of her own.
772 IDEOLOGICAL EFFECTS OF ACTUARIAL PRACTICES
Through the lens of representations thrown off by these prac-

tices, individuals, once understood as moral or rational actors, are
increasingly understood as locations in actuarial tables of varia-
tions. This shift from moral agent to actuarial subject marks a
change in the way power is exercised on individuals by the state
and other large organizations. Where power once sought to manip-
ulate the choices of rational actors, it now seeks to predict behav-
ior and situate subjects according to the risk they pose. The effects
can be discerned on the way we understand ourselves, our commu-
nities, and our capacity for moral judgment and political action.
One's first response might be to point out that actuarial tech-
niques are forms of knowledge gathering; the actions that are
taken on the basis of this knowledge should not be blamed on
knowledge. But actuarial practices cannot be dismissed as merely
forms of knowing, when to be known is to be subjected to signifi-
cant alterations in life opportunities. The relationship between
knowledge and power is interactive. The statistical processing of
information allows the exercise of power to be targeted quite pre-
cisely. Experts in marketing products and managing populations
constantly give rise to new categories of people such as BUPies
(black urban professionals), DINKS (double income no kids), high
rate offenders, CHINS (children in need of service), and LDs
(learning disabled children). Placing people in an actuarially de-
fined category helps mark them as a new subpopulation that calls,
in time, for new forms of testing, comparing, and ranking. Thus,
school children may be placed in a particular track on the basis of
standardized testing, but the track itself becomes a subject for fur-
ther testing, comparison, and ranking.
Actuarial techniques play a central role in a proliferating set
of social practices. They are at the same time a regime of truth, a
way of exercising power, and a method of ordering social life. Ac-
tuarial practices have not seemed very important nor attracted
much interest from social observers in part because they are al-
ready so familiar, and in part because they fit so unobtrusively into
various substantive projects (e.g., educating, hiring, premium set-
ting) in which they are subordinated as a means to an end. 1 Yet
this unobtrusiveness is precisely why they have become so impor-
tant; they make power more effective and efficient by diminishing
its political and moral fallout.
Similarly, Foucault ascribed the rise of disciplinary practices
in the nineteenth century to their success in making the exercise
1 It is the particular usefulness of genealogical research as done by Niet-
sche and Foucault, that it seeks to analyze the political history of means (so-
cial technologies) as against the more familiar history of social ends. This can
lead, however, to the illusion that techniques somehow transmit themselves
apart from the strategic interest of subjects. Yet more traditional historiogra-
phy suffers from the opposite malady of ignoring the way in which means en-
dure beyond the ends for which they were deployed and often shape new situ-
ations within which strategic action takes place.
SIMON 773
of power less expensive and less politically volatile (1977).2 The

disciplines were composed of techniques of surveillance and train-
ing that combined a detailed knowledge of the individual with
methods of organizing minute individual actions. The disciplines
replaced techniques of violence and intimidation that were both
less precise and more troublesome in the political resistances they
generated. I believe a genealogical analysis of the technologies
through which power is exercised today would demonstrate that
over the past half century we have been moving away from the
disciplines and toward actuarial practices that are, in turn, more
efficient in the use of resources and less dangerous in the political
resistances they generate.
Disciplinary practices focus on the distribution of a behavior
within a limited population (a factory workforce, prison inmates,
school children, etc.). This distribution is around a norm, and
power operates with the goal of closing the gap, narrowing the
deviation, and moving subjects toward uniformity (workers are to
be made more efficient and reliable, prisoners more docile, school
children more attentive and respectful). Actuarial practices seek
instead to map out the distribution and arrange strategies to maxi-
mize the efficiency of the population as it stands. Rather than
seeking to change people ("normalize them," in Foucault's apt
phrase), an actuarial regime seeks to manage them in place.
Thus, the actuarial regime uses the distribution of behavior
(usually in a population much less spacially or institutionally de-
fined) to construct circumstances that accommodate variations but
nonetheless alter the consequences in the aggregate (for example,
a risk pool in insurance). While the disciplinary regime attempts
to alter individual behavior and motivation, the actuarial regime
alters the physical and social structures within. which individuals
behave. The movement from normalization (closing the gap be-
tween distribution and norm) to accommodation (responding to
variations in distributions) increases the efficiency of power be-
cause changing people is difficult and expensive. Actuarial prac-
tices are emerging as a dominant force because they further inten-
sify the effectiveness of power set into motion by the rise of the
disciplines.
It is not, however, simply a question of better technology. The
emergence of actuarial practices also marks change in the social
environment in which power must be exercised. As Foucault and
Marx described them the disciplines were defensive strategies.
They sought to fix and neutralize the mobile and dangerous ele-
ments of a population made uneasy through the breakdown of
traditional communities during the early phase of capitalism. The
2 Foucault's study (1977) aroused new interest in the subject of the disci-
plines but this was not a new topic. Marx (1970), Weber (1948a), and Durk-
heim (1961) had already recognized the essential role of disciplinary practices
in modern society.
effort of the disciplines to control the bodies of individual subjects

responded to the potential subversive power of those bodies when
they were allowed to operate in disordered swarms. The revolu-
tionary actions of the late eighteenth and early nineteenth centu-
ries in which regimes were threatened by barricades and street
crowds were an essential background to the insertion of discipli-
nary practices in prisons, asylums, and factory spaces (Foucault,
1977; Rothman, 1971). The disciplines sought to alleviate this
threat by directly organizing the bodies and spaces of the "danger-
ous classes" (Chevalier, 1958).
Beginning in the late nineteenth century new strategies of so-
cial control using actuarial techniques began to develop that oper-
ated on populations rather than bodies. Social insurance, worker's
compensation, income tax, and similar devices created forms of
management that did not need to rely on the cumbersome tech-
niques of individual discipline (Ewald, 1986). The present regime
of power that tests, compares, and situates us, while withdrawing
from a direct coercion of our bodies and pleasures, .Jlows deviation
(gaps from the norm) to survive because it can afford to do so.
The shift toward actuarial practices evidences the growth in the
stability and confidence of power. In part this is a testament to the
effectiveness of the disciplines in producing a population that is
more docile and manageable. At the same time, it corresponds to
changes in economic life that make the mobilization of labor
power less intensive than it is in a growing industrial society. In
our present social circumstances, it is cheaper to know and plan
around peoples' failings than to normalize them. 3
In addition to these instrumental consequences, the shift to-
ward actuarial practices alters the way we understand our status
as subjects, both individual and group. By placing people in groups
that have no experienced meaning for the members, and therefore
lack the capacity to realize common goals or purposes, actuarial
methods imply a particular view of individuals and their communi-
ties.4 As people come to understand themselves through these ac-
tuarial representations they may be stripped of a certain quality of
belongingness to others that has long played a role in our culture.
3 Nietzche writes in the second essay of his On the Genealogy of Morals
(1967):
It is possible to imagine a society flushed with such a sense of power
that it could afford to let its offenders go unpunished. What greater
luxury is there for a society to indulge in? "Why should I bother
about those parasites of mine?" such a society might ask. "Let them
take all they want. I have plenty."
Ironically the penal system seems to be one of the areas where we cling most
tightly to a disciplinary vision of exercising power.
4 The distinction I am trying to draw between association based on exper-
ienced meaning and that assigned by abstract processes such as statistics
shares some features with Habermas' distinction between interactive and tech-
nical relations (Habermas, 1971), or more recently, his analysis of lifeworld
and system (1987).
SIMON 775
Because actuarial practices have the capacity to affect how we

organize ourselves and our sense of belonging to others, they have
ideological meaning. By ideological I do not mean false represen-
tations that are used to control an otherwise autonomous subject.
Rather, I refer to the way our social practices reflect ourselves to
ourselves. It is through the network of significance offered to us
by our practical involvements that we arrive at our subjectness
(Heidegger, 1962; Gramsci, 1971; Althusser, 1971). This network
will, of course, reflect the structure of power that operates
through practical involvements.
The success of actuarial methods in shaping a new ideological
basis for the governance of social life will be marked by its ability
to colonize legal discourse with its representations. Law is one of
the primary ways in which a sustained effort is made to rationalize
choices about which solutions should be employed to manage social
problems. Laws do this by subjecting social practices to an inquisi-
tion that demands the manner of representation be justified and
generalized. Legal discourse spreads and reinforces the logic of
those representations that it affirms (of course it can also work on
occasion to delegitimize and dissolve representations).
In America, because of the central role of law in maintaining
ideological structures, struggles over the imposition of actuarial
practices are often fought out on a legal terrain. There have been
local resistances to actuarial practices, although we rarely under-
stand them as belonging to a critical struggle over who we are. In
1978 the Supreme Court decided a case that involved resistance to
actuarial practices. City of Los Angeles Department of Water and
Power v. Manhart (435 U.S. 702 (1978)) involved a challenge under
Title VII of the Civil Rights Act of 1964 to the retirement benefit
system of the Los Angeles Department of Water and Power. The
plaintiffs charged that the practice of requiring a higher contribu-
tion to the retirement plan from female employees, based on the
longer expected lifespan of females, violated Title VII's prohibition
on discrimination on the basis of sex in employment compensation.
Manhart provides an opportunity to view the clash between actua-
rial practices and the value our culture has traditionally placed on
the sovereign individual.
In this essay I want to take the Manhart decision, and the at-
tendant critical discourse out of the context of gender discrimina-
tion and read it as a text about the ideological difficulties created
by these new techniques of power. First, I will closely examine
the majority opinion and some of the critical response that ap-
peared in law review articles following the case. Second, I will ex-
plore the limitations of these legal discourses in coming to terms
with the ideological effects of actuarial practices. Finally, I will of-
fer a reinterpretation of what is at stake in the proliferation of
these practices and suggest how a different approach to antidis-
crimination law might provide a better tool for resistance than the
currently dominant rights jurisprudence.
II. ACfUARIAL PRACfiCES AND LEGAL DISCOURSE:

LOS ANGELES DEPARTMENT OF WATER AND
POWER v. MANHART
The proliferation of actuarial practices within our society has
not taken place without resistance. 5 While they provide a highly
efficient means of management, actuarial practices also conflict
with other powerful traditions in our cultural background. Be-
cause they operate on the basis of aggregate data, they conflict
with the strongly held value that people be considered primarily as
individuals. Because they operate in terms of predicted future out-
comes, they conflict with the related value that those aspects of a
person that reflect her intentional efforts be privileged over those
aspects that are involuntary. Finally, because they demoralize-
treat as morally neutral-differences that carry highly-charged
political and social significance (such as race and gender), they
threaten to obscure the historical effects of domination and con-
flict with modern efforts to remedy discrimination. 6
Law plays a central role in our political culture as the place
wherein the rationality of social practices can be discussed, and
thus it is not unexpected that resistance to actuarial practices has
found its way into legal discourse. Value conflicts are entailed in
the production of social policy whether it concerns the placement
of a highway or a mechanism for military conscription. These
choices are challenged, tested, and legitimized in the discourse pro-
duced by courts and lawyers (Brigham, 1987). Yet our legal dis-
course is itself a medium structured by historical practices and ide-
ologies. Certain effects of social practices will be seen as
important, while others remain obscure. As a result it shapes in
advance the way in which the policy debate can be articulated (Un-
ger, 1975).
With respect to actuarial practices, the first two forms of con-
flict, that express the importance of individual autonomy, are eas-
ily expressed within the usual categories of legal understanding.
The third conflict, which concerns the political meaning of social
5 Insurance pricing has set off a number of political struggles, especially

against the practice of redlining, i.e., excluding entire neighborhoods from in-
surance or consumer credit because of poverty and race. These struggles have
generated various legislative measures (cf. Austin, 1983). More recently AIDS
has led some insurers to seek the exclusion of people they suspect of belonging
to high risk groups. This has been strongly resisted and in some states such as
California has led to legislation forbidding AIDS testing for insurance pur-
poses.
6 The sense of repulsion we feel in being treated actuarially (for example,
buying auto insurance or applying to law school) is anything but trivial. It rep-
resents the call of something still very much alive in our sense of self (both
individual and collective) that is profoundly threatened by these practices.
SIMON 777
categories and their relevance for discrimination, is far more diffi-

cult to fit into a legal dispute. While it is undeniable that law has
grown through the pressure of social movements, the political real-
ity of these movements is generally covered up by these same
laws. The tendency of legal discourse is to express the hard won
gains of social movements as a priori universal rights-previously
existing, newly articulated or discovered rights-that have no con-
nection to the contingencies of historical struggle and change. In
addition, these rights are granted to individuals rather than
groups. Those examples of legal opinions that have come close to
acknowledging the social and political basis of law have been de-
nounced for precisely that reason. 7
The exclusion of this third dilemma from the legal debate
over actuarial practices forces us into a choice between individual
and group models of equity. This choice necessarily suppresses
what is most invidious about actuarial practices, i.e., the ideological
effects it has on group identity.
The leading case to consider actuarial practices arose in the
context of gender discrimination. In City of Los Angeles Depart-
ment of Power and Water v. Manhart (435 U.S. 702 (1978)), the
Supreme Court struck down the use of gender as an actuarial vari-
able in establishing the amount of employee contribution to a re-
tirement benefit plan as a violation of Title VII of the Civil Rights
Act of 1964.8 I want to examine the discourse of the Manhart deci-
sion and the intense debate that arose in several law reviews con-
cerning the propriety of the decision to illustrate tensions arising
in our culture from the expansion of actuarial practices.9 At the
same time these discourses illustrate the limitations placed on
resistance by the prevailing structure of legal rationality.
The benefit plan provided by Los Angeles Department of
Water and Power required higher contributions from female em-
ployees because statistically they live longer than men. Since it
disadvantaged women on its face, the plan seemed to violate Title
VII's proscription against discrimination in the terms or conditions
of employment on the basis of sex. As individuals, women were
disadvantaged by paying higher contributions to the plan while
7 Brown v. Board of Education, 347 U.S. 483 (1954) acknowledged that
historical changes in race relations and in the social role of education were sig-
nificant reasons for rejecting precedent and finding segregated education un-
constitutional. This aspect of the opinion was attacked in a line of argument
initiated by Herbert Wechsler's article entitled, "Toward Neutral Principles of
Constitutional Law," 73 Harvard Law Review 1 (1959).
s The Civil Rights Act of 1964, Title VII provides in part that:
It shall be an unlawful employment practice for an employer to fail
to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such individual's race,
color, religion, sex or national origin ...
9 See Kimball (1979); Brilmayer et al. (1980); Kimball (1980); Laycock
and Sullivan (1981); Benston (1982); Brilmayer et al. (1983); Benston (1983).
having no certainty that they would live the additional years re-
quired to reach parity. As an aggregate group, however, female
employees could expect to receive the same benefits as male em-
ployees. Indeed if, statistically, men die at a younger age than wo-
men, a plan requiring equal contributions and providing equal
payouts will tend to favor women. Because the Court took the
gender gap in longevity to be statistically accurate, its determina-
tion of whether or not Los Angeles Water and Power discrimi-
nated rested on the question of whether Title VII is really aimed
at groups or at individuals.
Furthermore, the facts in Manhart posed a distinction that
seemed without any discriminatory prejudice or stereotyping of
women. Justice Stevens's majority opinion assumed that longev-
ity--correctly or incorrectly asserted-is morally neutral, i.e., it is
unlikely to stigmatize those to which it is attributed. Since Man-
hart posed a classification that did not incorporate a disfavored so-
cial attribute (no one argues that longevity is bad), it strained the
traditional justifications for antidiscrimination law.
Stereotyping, or the imposition of assumptions about a group
on an individual, has been central to antidiscrimination law be-
cause of the prominence of individual autonomy as a juridical
value. Manhart stretches this conception in order to fit actuarial
representation into the mold of devaluing moral attributions
(blacks are violent, Mexicans are lazy, Jews are cheap, women live
longer). This strain, however, allows Manhart to articulate the
nascent cultural resistance we have to actuarial practices in the
traditional values of individual autonomy.
On the surface the opinion in Manhart has no problem accom-
modating traditional values. Justice Stevens argued that the use of
gender is unlawful where it negatively affects an individual for
whom the classification is inaccurate. Stevens argues that the indi-
vidual, rather than the group, is the appropriate subject of antidis-
crimination law (Manhart, 435 U.S. at 708):
The question ... is whether the existence or nonexis-
tence of "discrimination" is to be determined by compari-
son of class characteristics or individual characteris-
tics. . . .The statute's focus on the individual is
unambiguous. It precludes treatment of individuals as sim-
ply components of a racial, religious, sexual, or national
class. . . . Even a true generalization about the class is an
insufficient reason for disqualifying an individual to whom
the generalization does not apply.
Despite his acknowledgement that the actuarial classification
of women in terms of longevity differs from traditional prejudiced
classifications, Stevens manages to fit the case back into the tradi-
tional analysis of stereotypes. "Practices that classify employees in
terms of religion, race, or sex, tend to preserve traditional assump-
tions about groups rather than thoughtful scrutiny of individuals"
SIMON 779
(Manhart, 435 U.S. at 709). By focusing the legal analysis on

whether the statute is concerned with groups or individuals Ste-
vens's opinion covers up the ideological effects of the actuarial
practices at issue in Manhart.
Stevens's reading of Title VII, however, creates a number of
problems. First, it contradicts cases in which the Court has al-
lowed a Title VII violation to rest on a showing of group disparity
without evidence of a specific intent to discriminate against indi-
vidual members of that group (Griggs v. Duke Power Co., 401 U.S.
424 (1971)). 10 As Justice Powell has pointed out, insistence on a
rigid individualism concerning the aim of Title VII renders this
important "disparate impact" line of cases incoherent (Connecticut
v. Teal, 457 U.S. 440 (1982), 458-459, Powell, J., dissenting)). If Ti-
tle VII is exclusively aimed at protecting the individual it is diffi-
cult to see how a showing of disadvantaging on the aggregate
should have any bearing.
Second, Stevens's focus on the individual would seem to bar
remedial solutions that redress historical discrimination against
groups at the cost of treating individuals on the basis of their
group membership. Affirmative action plans justified on the basis
of past discrimination against a group would seem to violate Title
VII if they result in the disadvantaging of individuals on the basis
of their race, or other proscribed difference. Yet the Court upheld
just such a scheme in United Steel Workers v. Weber (443 U.S. 193
(1979)).
Manhart gave ris~ to a storm of controversy. One group of
writers, whom I shall refer to as insurance-oriented critics, at-
tacked the decision as destructive of the rational calculation of risk
on which "fair" insurance is based. More strongly, they expressed
a kind of shock that what appeared in their paradigm as a value-
free technical decision (to use gender in setting benefit premiums)
had been adjudged as discrimination. A second group of writers,
whom I call rights-oriented critics, defended the decision as a logi-
cal extension of the field of antidiscrimination law. These writers
celebrated the decision as a sign of the Court's willingness to look
beyond the authority claims of a technical elite to root out biased
treatment of women.
10 In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Court held that a
prima facie case of discrimination under the Civil Rights Act of 1964, Title VII
could be made out showing that a particular practice disadvantaged as an ag-
gregate a class of people protected by Title VII. In that case, the company re-
quired applicants for certain higher job categories to have a high school educa-
tion and a certain score on a standardized aptitude test. The district court
found that this negatively impacted blacks as a class. The Supreme Court held
that such a showing made out a prima facie case for violation of Title VII and
placed the burden on the employer to show that the requirements were di-
rectly related to work involved.
A. The Insurance-Oriented Critique of Manhart

For insurance-oriented thinkers, the Manhart decision is more
than wrongly decided, it is an assault on what they conceive of as
scientifically established reality. From their point of view, a neu-
tral, indeed beneficent, process of social policy has been unfairly
linked to the brutish tradition of racism and sexism. Justice Ste-
vens's opinion, from this perspective, is an attempt to impose polit-
ical power over truth (Kimball, 1979: 96):
It is quite beyond the capacity of Congress to com-
mand reality to correspond to its mandates. Within limits
Congress may order employers (or even insurers) to ignore
reality and to act in accordance with the fiction that men
and women do not differ. . . . [T]he question then is
whether the statute [Title VII] commands us to ignore that
reality.
The insurance-oriented critics deny there is any differential
treatment of individual women. From their perspective, actuarial
methods represent people in terms of risk, that is, in terms of the
contingent future. The object being exchanged in annuity plans is
not money at all, but assurance against a frightening uncertainty-
living beyond one's savings, i.e., poverty in old age. Thus the fact
that women pay more in contributions, or receive less per pay pe-
riod after retirement is not a fair measure of what they receive.
Because of differential longevity, the annuity plans provide an
equal assurance of an equal economic position through old age.
Yet the very fact of the lawsuit in Manhart suggests that the
employees do not share the formalized representation of them-
selves that is constructed by actuarial methods. Where the insur-
ance-oriented critics see in gender only a distinction with a techni-
cal bearing on longevity, the plaintiffs saw the political and moral
significance invested by a history of sexist domination. The blind-
ness of actuarial vision to the political and moral meaning of cer-
tain differences is manifest in the response of the insurance-ori-
ented critics to one of Justice Stevens's points. Stevens wrote
(Manhart, 435 U.S. at 710, footnotes omitted):
Treating different classes of risks as though they were
the same for purposes of group insurance is a common
practice that has never been considered inherently unfair.
To insure the flabby and the fit as though they were
equivalent risks may be more common than treating men
and women alike; but nothing more than habit makes one
"subsidy" seem less fair than the other.
The insurance-oriented critics reject this analysis. They argue
that since any subsidy would be unfair, the real question is what
subsidies can be feasibly eliminated in the context of group insur-
ance policies (Kimball, 1979: 107; Benston, 1982: 501-502). 11 The
11 But Justice Stevens is not speaking of "fairness" within an actuarial

logic. He is speaking of the sense of "fairness" in a culture that is still sensi-
SIMON 781
question of whether certain differences have a moral significance
does not show up in their discourse.
What the insurance-oriented critics offer is an actuarial con-
ception of "fair discrimination" that is stripped of the meanings
left by the history of gender domination. Kimball (1979: 103) ar-
gues that, historically, discrimination meant simply the act of di-
viding, separating, and distinguishing. It took on a negative tone
only when coupled with the cognate "against." The original mean-
ing has been lost in an expanding field of antidiscrimination law.
The insurance-oriented critics seek to revive the concept of "fair
discrimination" (Kimball, 1979: 105):
"Fair" discrimination has never been illegal; it was and
is not only permissible but also required as the essence of
good ratemaking techruques in insurance; the goal of the
ratemaking process is to discriminate fairly-to measure as
accurately as is practicable the burden shifted to the insur-
ance fund by the policy holder and to charge exactly for it,
no more and no less. To do so is "fair" discrimination in
the seventy year old tradition of insurance rate law and
the much older practice of the insurance business. Not to
do so is unfair discrimination.
On this basis, the insurance-oriented critics argue that there is
no unfair discrimination against women involved in the benefit
plan at issue in Manhart. Indeed on this account eliminating the
differential would constitute unfair discrimination against men
since they would be appraised under a scheme that was not as effi-
cient as possible.
B. The Legal-Rights-Oriented Defense of Manhart

Brilmayer, Hekeler, Laycock, and Sullivan, ·responded to Kim-
ball's article with a defense of the Manhart decision. Their de-
fense is constructed self-consciously within the legal rights dis-
course (Brilmayer et al., 1980: 508):
The question, therefore, is whether in this context Ti-
tle VII requires equality for individuals or equality for
groups. Or..e reason for the vigorous and so far unproduc-
tive disagreement about the answer may be that most of
the antagonists come from fundamentally different intel-
lectual traditions with respect to the individuals-versus-
groups issue. The insurance tradition analyzes risks, pre-
miums, and benefit schedules in terms of groups; most ac-
tuaries cannot think of individuals except as members of
groups. As we shall show, however, the main civil rights
tradition analyzes rights in terms of individuals. Its most
fundamental principle has been that no individual shall be
considered simply as part of a racial, sexual, religious, or
tive to historically invested meaning in particular distinctions including gen-

der.

ethnic group, or treated differently because of his member-
ship in such a group.
As does Justice Stevens, the rights-oriented critics view the is-
sue as one of treating individuals in terms of their group member-
ship. But they go further by rejecting what Stevens assumed; they
deny that the actuarial use of gender is either neutral or accurate.
For the rights-oriented critics, the statistical association between
longevity and gender ignores the point of antidiscrimination law.
They contend that Kimball's "expectation argument"-that men
and women paying different annuity premiums will receive equal
assurance against poverty in old age-assumes what is in question,
that gender can be used to calculate expectation in the first place.
This attack has two dimensions. First, the rights-oriented crit-
ics argue that any classification by gender in insurance benefits
suffers from all the evils of classification that antidiscrimination
law and the Civil Rights Act intended to eliminate. They summa-
rize the underlying purposes of the act as follows (Brilmayer et al.,
1980: 526-527):
Race, color, sex, religion, and national origin share
three characteristics that justify the restrictions on their
use. First, they are ascriptive and immutable. Second,
they have been widely misused throughout history. Third,
they are generally irrelevant to employment decisions.
Brilmayer emphasizes the strong resistance in our culture to
allocating significant costs and benefits on the basis of immutable
characteristics. Such distributions are faulty because they seem to
reward and punish people for what they are not responsible for,
and they create no incentive to make individual choices. Further-
more, immutable classifications make us suspicious of the presence
of discriminatory intent. Immutability means that those who may
be wielding the power to classify have no risk of being subjected to
their own strictures. This suspicion is reinforced in their argu-
ment by the history of discrimination in the insurance business
(Ibid., p. 529). Antidiscrimination law also reflects a strong cul-
tural assumption that immutable characteristics, and other rather
permanent ones like religion, are largely irrelevant for making so-
cial choices. The history of prejudice concerning certain differ-
ences such as race and gender (and the social disadvantaging that
has gone along with prejudice) make us suspect that what appear
to be effects of these differences are really effects of the disadvan-
tages.
Whereas Stevens viewed Manhart as posing an extension of
gender discrimination law beyond the settled questions of inaccu-
rate stereotypes, Brilmayer and her co-authors view the case as a
straightforward application of that law (1980: 510):
The association between sex and mortality is no different
from any other association between forbidden and permis-
sible criteria. American women as a group currently live
SIMON 783
longer than American men as a group, just as they are able
to lift less weight as a group. But some women will die at
a younger age than some men, just as some will be able to
lift more weight.
The second direction of attack is against the technical accu-
racy of gender differential. The rights-oriented critics argue that
gender is not the genuine "cause" of longevity differences. Other
measurable factors exist that could adequately reflect longevity for
insurance purposes, e.g., smoking and stress-related occupations.
The rights-oriented critics suggest that the difference between
men and women in longevity is an effect of the historic pattern of
opportunities for each gender. Here, however, the advantaging of
men has worked perversely to make them better candidates for
heart attacks and other stress and smoking-related diseases
(Brilmayer et al., 1980: 531-537). 12
While both sides view causation as an empirical and technical
question, their different valuations embody a normative difference.
Implicit in the legal rights-oriented critics' concern for causality is
the notion that things that happen to people should reflect some
sense of desert, i.e., of the individual's responsibility for her own
actions. If the fact that men die earlier reflects the fact that men
engage in behavior that leads to their death, then a moral choice is
being hidden by a statistical association.
The underlying moral dimension in the legal rights-oriented
writers' concern with causation is clear from their response to the
charge that men are unfairly treated by an equal contribution
scheme (Brilmayer et al., 1983: 226):
It is hard to understand why the use of merged-gender
mortality tables is unfair to men. It has a disparate impact
on men as a group because it disadvantages self-destruc-
tors, and more men than women are self-destructors. The
total annuity payout to ...500 hypothetical men would be
less than the total amount paid to the 500 women because
the total number of years the men would live would be
less. But are men, especially non-self-destructors, entitled
to cash in on the fact that many of their sex self-de-
struct....
Presumably if some class of people should be disadvantaged by
a group-based pension plan, it is "self-destructors," i.e., those
whose individual choices and actions have led to this end. The in-
12 The insurance-oriented critics argue that cause per se is not important.
Even if gender is a proxy for other factors it may be the most efficient proxy
available for otherwise difficult to measure characteristics. Then the signifi-
cant question is whether changing social patterns (e.g., more women smokers)
will render actuarial tables used now to assess contributions incorrect by the
time the employee cohort reaches retirement. Thus, Benston argues that cau-
sality is unlikely to detrimentally effect the actuarial scheme: "It is preferable
that the postulated relationship be grounded in a theory that efficiently
predicts the effect of changed circumstances on life expectancy. But this is not
necessary if past relationships have been stable and previous predictions accu-
rate." (1982: 514).
surance-oriented critics simply do not confront within their dis-

course the question of whether one distribution of risk is norma-
tively superior to another. The only real basis for distinction is the
efficiency of distribution. If a causal theory provides for more effi-
cient and reliable distribution it is superior, if not, it is irrelevant.
III. RE-INTERPRETING THE DANGER OF ACfUARIAL

PRACfiCES
A. Critique of the Insurance and Rights Discourses
Neither the insurance nor the rights discourse provides an ad-
equate basis for understanding the social policy choices really at
stake in Manhart. Both discourses provide points that resonate
with important traditions within our cultural practices, but both
do so at the cost of ignoring the force of the alternative tradition.
The insurance-oriented critics build their argument against
Manhart around the concept of "fair discrimination." Inherent in
the policy of measuring the "burden shifted by the policy holder,"
and "charg[ing] exactly for it" (Kimball, 1979: 105), is the notion
that each person should be assessed precisely in terms of the bur-
den of risk that she creates. Despite the appeal of this logic in a
market society, there is, in fact, no way to know precisely what
burden an individual will place on the insurance plan because indi-
vidual longevity is not knowable in advance. In practice the strat-
egy of internalizing costs involves choosing among various ways of
distributing the full cost among a group of employees. One could
imagine making blondes or right-handed people pay more, or one
could decide that the relevant group to share the costs is the group
of employees as a whole. All insurance schemes perform a func-
tion of risk spreading. Why should this spreading end with the
gender distinction? If women cannot change anything to affect the
burden they place on the pension scheme, and if, as individuals,
they are in no way responsible for the differential and may not get
to enjoy it, why should they absorb the cost?
The insurance-oriented critics defend themselves with micro-
economic cost internalization theory. On this account it is more ef-
ficient to link price as accurately as possible to risk because it al-
lows individuals to allocate their resources in a way that advances
their interests. To go from all people, to groups distinguished by
gender is, on this account, a step toward individualizing costs (Ben-
ston, 1982). A person likely to live a long time may find that the
high cost of an annuity reflects her own perception that the risk of
living beyond one's working years is quite high, and thus the need
for a pension great (Lautzenheiser, 1982: 38, cited in Benston, 1982:
518):
If a person knows he or she has a higher probability of
dying because of any of the elements-health, occupation,
family history, avocation-would he or she not be unwise
SIMON 785
to buy an annuity which pays only for long life, not short
life? In the case of an annuity, then, self selection is done
by the insured (annuitant) in advance for all the elements
except age and sex.
However, it is by no means obvious that this self-selection pro-
cess takes place. (How many of us who smoke or drink or the like
actually acknowledge that we will live a shorter life let alone
make concrete economic choices based on that fact?) The insur-
ance-oriented critics are vulnerable to the traditional counter-
thrust against price systems of allocation-that the potential for
consumer choice is overestimated. The gender difference is not
large or certain enough to affect the calculations of the average
person as to whether paying for the risk to be distributed is worth-
while.
Nonetheless, the rights-oriented position is also suspect.
Brilmayer and her co-authors accept Stevens's logic that Manhart
raises the question whether Title VII protects individuals or
groups and argue that it should be read to protect individuals. By
emphasizing individualism, the rights-oriented critics blind them-
selves to the importance that aggregation through actuarial tech-
niques plays in our social life. We live in a society where aggrega-
tions are increasingly important ways of exercising power;
strategies of resistance must also be able to operate at the level of
aggregates. By opting to enshrine the individual, the rights critics
renounce remedial strategies such as affirmative action that rely
on groups. 13
In addition, the link these critics make between costs and re-
sponsibility for choosing courses of action ultimately ignores the
dynamics of modern social practices and policies. Increasingly we
live in a world where costs are discontinuous with responsibility.
Highway accidents, air pollution, and economic dislocations, all
have causes in some sense, but practically they are social problems
that require social solutions. Indeed, it is the rising recognition of
the social bases of harms that has fueled the growth of actuarial
technologies as ways of socially managing risk (Ewald, 1986; Si-
mon, 1987).
It would be a mistake, however, to view the individualism of
rights discourse as the only reason it falters in the effort to grasp
the ideological effects of actuarial practices. The critique of liberal
rights jurisprudence produced by the Critical Legal Studies move-
ment provides a basis for analyzing the legal struggle around actu-
arial practices that avoids the errors of rights discourse, but that
also fails to grasp the ideological threat.
In a penetrating analysis of insurance classification controver-
sies, Regina Austin (1983) seeks to reintroduce the political dimen-
sion of actuarial practices excluded by liberal rights jurisprudence.
13 They would limit affirmative action to a narrow range of situations
under Title VII (Brilmayer et al., 1980: 525 n.95).
She argues that classification generates conflict because it repre-

sents and reinforces the current hierarchical ordering of status
groups in modern society through which both individuals and
groups are disadvantaged. The individual who seeks to move up-
ward in a stratified society is impeded by the prevalence of insur-
ance systems that impose costs on her on the basis of her existing
status group. The social group that shares bonds of internal soli-
darity is also hindered by classification procedures that strip their
communities of economic resources by excluding them from the
provision of insurance.
Austin suggests that litigation concerning classification has the
promise of being nascent form of class conflict. But the struggle
breaking out around insurance classification is rendered ineffective
by the hegemony of liberal modes of criticism. Liberal criticism
channels discontent in the directions of personal autonomy, or in-
terest group pluralism (1983: 580). The two appear to differ, but in
fact share a basic acceptance of the status quo distribution of
power and opportunity in society. In the insurance context resist-
ance is channeled toward either the unfairness of treating the indi-
vidual on the basis of group experiences, or toward bargaining for
a better position for one's group. Austin offers an alternative to
these liberal strategies embodied in the rights critics' position; she
urges the formation of real "voluntary groups or communities
whose members are engaged in economic and social tasks relevant
to the control of risks and the provision of support and resources
for victims of accidents and losses" (1983: 581). In effect, she is ar-
guing that risk decisions be democratized. This democraticization
requires the formation of sovereign communities capable of exer-
cising political power.
My analysis, however, suggests that the ideological effects of
actuarial practices, render more difficult the formation of precisely
the sort of communities Austin describes. While Austin suggests
that insurance classification practices reinforce status hierarchies,
I argue that they do so at the cost of undermining the forms of
shared significance that define a status group. Insurance, and
other actuarial practices, reinforce hierarchy; but they also trans-
form the hierarchy into one of aggregates rather than status
groups.
Austin recognizes this position when she says that actuarial
representations fragment the individual, but she fails to acknowl-
edge its significance for immobilizing social groups (1983: 547):
Insurance companies do not view any insured as a
whole person. Rather, every insured is compartmental-
ized. He is the sum of the many roles he plays as a result
of being a member of many status groups. To an insurance
company, the same individual may be an adult, a female, a
divorcee, a parent, a lover, an executive, a debtor, a home-
owner, a citizen, an urbanite, a commuter, a teetotaler, a
SIMON 787
lawbreaker, and a klutz. She is not a plenary, monolithic
person. The company does not know her; it knows only
the roles she plays. . . . Although the multiplicity of roles
may cause the individual to suffer normative conflict and
uncertainty, role or status inconsistency does not impede
insurers.
It is true that we live a multiplicity of roles, some of which
constitute status groups in the Weberian sense. But we also think
of ourselves as plenary. Although this may be an illusion, it is an
illusion sustained by the power of some group identities to give us
a way of interpreting our other roles. Actuarial representations
undercut this self-interpreting capacity. Austin's conception of a
just solution to insurance controversy envisions the transformation
of the present status group hierarchy toward egalitarian communi-
ties that combine internal solidarity with democratic political or-
gans. Yet the effect of actuarial practices is precisely to make it
more difficult for groups to intensify their solidarity or to exercise
political choice. As Austin herself points out, ". . .insurance cells
are artificial; they do not necessarily relate to real collectivities or
groups with which the cell occupants identity and in which they
participate." (1983: 547).
I want to argue that the representations produced by actuarial
practices, e.g., insurance cells, place us in a cultural space even
more alienating and disempowering than the disciplinary bureau-
cratic practices we have occupied for most of the last century. The
theoretical work of the Critical Legal Studies movement, which
Austin draws on, seems to miss the significance of the increasingly
visible shift in society from status and class groups to aggregations
(Unger, 1975; Frug, 1980; Kennedy, 1976). To these scholars, the
major ideological foe is liberalism, and the most important prac-
tices are bureaucracy and capitalism. While these forces remain
central to understanding our society, they are being altered by the
proliferation of actuarial practices and the ideological effects of
those practices.
B. The Cultural Logic of Actuarial Practices: Making and

Unmaking People
The rights- and insurance-oriented discourses provide inter-
pretive nets that seek to make sense of our social world; they in-
corporate the most powerful languages within which we find our-
selves debating public policy. One can think of other discourses,
religion or revolutionary rhetoric, for example, but these, for a va-
riety of reasons, have been less powerful in contemporary political
life. Nonetheless, neither rights or insurance talk seems to pro-
vide an interpretive net that adequately accounts for the diversity
that exists within our present social practices or our contemporary
notions about fairness. 14 I maintain that one must observe the

ways actuarial practices contribute to the construction of social
groups and persons to be able to appreciate and possibly imagine
our way beyond the limitations of these two discourses. The
proper place to begin is with our own sense of unease at how we
are represented in actuarial practices.
The predominant understanding of political action in our cul-
ture founds it in the sovereignty of the individual subject or in at-
tributing sovereign subjecthood to groups. Laws often treat groups
as if they were individual subjects capable of intentions, decisions,
and failings. This reflects certain historical and political agendas
(e.g., the protection of investors through the fiction of the corpora-
tion) but it also denotes a set of sociological conditions. The sub-
jecthood of groups has depended on the ability to include and ex-
clude people, sanction or reward them, mobilize or diffuse them.
These faculties are composed at the micro-level by shared dis-
courses, common means of understanding the situation, and the
ability to limit access to knowledge of what the group is doing.
Through these sorts of material features, groups are able to ascer-
tain sentiments, shape a controlling interpretation of the situation,
mobilize members for action, and deliver power. However, actua-
rial practices make it more and more difficult for group sub-
jecthood to develop (or reproduce itself) by undermining these ca-
pacities.
In the nineteenth and early twentieth centuries scholars fo-
cused on the shift in group character from status groups to collec-
tivities defined by their contractual position (classes). The former
are held together by internal bonds, while the latter tend to be de-
fined by external pressures. 15 While classes can develop internal
14 Rights-oriented discourse derives from the centuries long traditions of
common law, and western political theory, while the insurance/economic-ori-
ented discourse stems from the tradition of the social sciences. It is unlikely
that there is a logically derivative meta-language that would enable us to move
from one to the other. Nor is it likely that we can fashion a new, more com-
prehensive discourse out of thin air. Discourses are assembled, over time,
from elements that linger throughout culture. Far from being mere "carriers"
of self-generating discursive genotypes, humans are the skillful mechanics of
this ideological machinery. We work from the junk pile that history has left
us. We can never be sure if the machine we build will accomplish the ends we
have dreamt of, or what else it may accomplish. This does not mean, however,
an end to the useiulness of rational reflection on human practices. But it does
argue for the usefulness of interpretive methods that seek to illuminate ele-
ments that underlie the ways we talk and think about social problems. Work-
ing from the product of such interpretation, it is possible to suggest new com-
binations of elements. What results may be of only local usefulness within one
region of social life, or it may not be useful at all. Over time such local im-
provisation can lead to a broader framework.
15 Weber defines a status group as internally mobilized:
... a plurality of persons who, within a larger group, successfully
claim a special social esteem ... [they] may come into being; in the
first instance, by virtue of their own style of life, particularly the type
of vocation ... [In] the second instance, through hereditary charisma,
by virtue of successful claims to higher-ranking descent; hereditary
SIMON 789
bonds through the pressure of external forces (class consciousness)

the rise of class as a predominant form of identity in a society per-
manently diminishes the intensity of internal bonds. It is possible
to think of aggregates as a third kind of collectivity, one defined
neither by internal bonds, nor external experiences, but by loca-
tions on a statistical distribution.
The kind of groups whose formation is encouraged by actua-
rial practices are aggregates; conglomerations of people whose be-
longing together is unrelated to any significant traditions, dis-
courses, or action. Actuarial practices define as groups assemblies
of people which are singularly sterile in their capacity for political
empowerment. Where they locate divisions along dimensions of
traditionally recognized difference (e.g., gender) actuarial practices
tend to separate this difference from the political and moral signif-
icance that history has built up.
Aggregations are familiar in law in the form of class action
lawsuits. While a legal class may consist of status, classes, or inter-
est. groups, they commonly are made up of people with only a for-
mal attribute in common, e.g., all of those people who bought or
sold shares of a stock that was being manipulated by inside trad-
ing. Legal scholars have recognized the serious problems that
arise for the normal theory of legal representation by the absence
of any real solidarity or even objective interest on the part of class
members (Rhode, 1982). Bereft of shared traditions, discourses, or
of any real mechanism for exercising political power, legal classes
become the puppet of whomever is capable of manipulating the
flow of information, usually the lawyers. Just as the class action
threatens to outstrip the concept of a legal subject and renders
representation problematic, the rising importance of aggregates in
contemporary political life threatens our democratic traditions. 16
People understand themselves along the divisions that power
invests with significance. The more a particular dimension of so-
cially recognized difference marks an actual difference in life op-
portunities, the more powerfully does that dimension stand out as
a mark of identity and belonging. That is why, paradoxically, the
most intensely discriminated groups often develop the most power-
ful sense of group identity, e.g., the Jews and American blacksP
status groups, or through monopolistic appropriation of political or
hierocratic groups; political or hierocratic status groups. (Weber,
1968: 306).
16 The burden of my argument is that these are intertwined with the par-
allel rise of actuarial practices. By representing people in a certain way, as
members of aggregates defined by formal attributes, actuarial practices make
it possible for power to target individuals in terms of their location within a
population. Whatever instrumental effects this has, it also has ideological ef-
fects. It calls us forth as a specific kind of subject (cf. Louis Althusser 1971).
17 The substance and intensity of the identity produced for specific
dimensions of difference can be expected to vary tremendously. The play of
domination across differences creates very distinct sorts of group identities.
For example, while racism and sexism are both forms of domination through
Actuarial practices, however, construct groups along dimensions

that erode the basis of collective identity and action.
It is important to recognize that this disempowering effect
does not arise simply from the practice of classifying. Power has
been exercised over people through techniques of classification for
a long time now; actuarial practices produce a very particular kind
of classification. Hacking has studied the way that western socie-
ties since the beginning of the nineteenth century have been in-
creasingly obsessed with classifying the population, and identifying
people as types requiring more or less social control (1986:
223-224). These classification and counting practices have resulted
in what Hacking calls "making up" subjects underlying the per-
ceived conduct of individuals. In this way homosexuals, the men-
tally ill, and delinquents have been "constructed" since the begin-
ning of the nineteenth century. 18 These constructed identities
were the effects of specific exercises of power and knowledge, and
they came to constitute a target for further exercises of power as
the mentally ill were concentrated in asylums, delinquents in pris-
ons, and homosexuals in both.
Contemporary society goes on about the business of exercising
power on people based on classifications. But the sort of classifica-
tions developed by modern actuarial technologies are different.
They lack the subjectivity underlying the categories of earlier clas-
sification practices. That is, as forms of knowledge they do not as-
sume any particular subject; as strategies of power they do not tar-
get subjects.
Consider an example from the genealogy of delinquency.
Criminal policy has always been especially concerned with people
who commit many crimes, but there is an important shift between
the habitual offender (a ghost from the classification machine that
has haunted criminal justice policy since the nineteenth century)
and the latest target of criminological research, the high-rate of-
fender. The former classification focused on a presumed underly-
ing quality of the individual subject. Thus sociologist Ernest Bur-
gess, writing in the 1920s, says this about the habitual offender
(Bruce, Hams, Burgess, Landesco, 1968: 210):
The so-called habitual criminal type includes [such]
other groups besides [the] alcoholic, as the drug addict, the
gambler, the tramp, the ne'er do well. Individuals in these
groups require far more careful and specialized treatment
both within the penal and reformatory institutions and
outside under supervision than do the first and occasional
difference, the underlying subjects constituted have been quite different.
While this article focuses on the political importance of identity it must be
kept in mind that differences in the sort of identity can be expected to have
important political effects of their own.
18 A growing body of literature has developed arguing that the idea of
special deviant subjectivities underlying abnormal conduct is a relatively mod-
ern one (see Foucault, 1965, 1977; Weeks, 1977).
SIMON 791
offender. Parole officers dealing with habitual offenders

should be highly skilled social workers with knowledge of
all the resources in the community for the treatment nec-
essary in each individual case.
In contrast the recent category of high-rate offender partakes
of no particular view of the kind of subject, but is based on purely
statistical data. 19 Actuarial techniques can be used to identify peo-
ple who are more or less likely to be high-rate offenders, but these
variables are not integrated into a conception of the underlying
subject (Greenwood and Abrahamse 1982).20
Both forms of classification are social constructions, but they
have different ideological effects. Because they emphasized the
existence of an underlying identity, older forms of classification
created the possibility of classified subjects resisting the very exer-
cises of power that constituted them. The earlier regimes of classi-
fication and control in the penal system and the asylum system
greatly increased the power exercised over delinquents and the
mentally ill; but they also increased the power invested in the
identities of the underlying subjects. The more power was concen-
trated on these subjects, the more compelling their subjectivity be-
came for political and moral life of society. Eventually this gave
rise to social movements on behalf of these subjected populations.
The new actuarial technologies in the penal sphere reverse
this process. They are aimed at lessening the investment of power
by refining its exercise. The result of their success (which admit-
tedly has not progressed far at present as evidenced by increas-
ingly long prison sentences in most states) might be a welcome les-
sening of incarceration and of the distance between the convicted
criminal and the community. Yet by such a process the penal sys-
tem will become more invisible, and the criminal subject a less
19 Burgess was one of the first social scientists to urge the adoption of ac-
tuarial technologies in criminal justice. He produced statistical tables designed
to aid parole authorities in determining which prisoners might be safely re-
leased to the community. Yet Burgess's tables compared specific types of of-
fenders such as alcoholics or gamblers. These types (a hallmark of the Chi-
cago School of Sociology) embodied specific identities. The prediction tables
utilized by contemporary social scientists such as the Rand Corporation's Peter
Greenwood are organized around variables keyed to behavioral or status
markers (e.g., arrest before age sixteen, unemployed for two or more years).
The high-rate offender is defined through a statistical regression of these vari-
ables. While Burgess is a pioneer in the proliferation of actuarial techniques
the fully developed form with which this paper is concerned is reached only
when the subject is replaced by a field of statistically defined parameters.
20 Recent trends in market research seem to mark a return from the ex-
ternal aspects of people to the internal "values" (Atlas 1984). One highly suc-
cessful program is Stanford Research Institute's "Values And Lifestyles"
(VALS) program. Yet this move "beyond demographics" simply represents a
more sophisticated way of targeting segments of the population. VALS's nine
"types," such as "survivors," "achievers," or "socially conscious," do not choose
groups with any real identity, but offer a way of mapping consumption behav-
ior with more precision than traditional demographics such as income, age, or
marital status.
compelling public figure; in short the exercise of the power to pun-

ish will generate less moral and political friction in society (Cohen,
1985).
Another example is provided by the history of homosexuality.
The gay liberation movement presumes precisely the idea of a
common subjectivity underlying homosexual conduct that was first
assumed by the nineteenth century doctors and legislators who
classified the homosexual as a type of person to be controlled, dis-
ciplined, and normalized (Epstein, 1987). Foucault states (1978:
101):
There is no question that the appearance in nine-
teenth-century psychiatry, jurisprudence, and literature of
a whole series of discourses on the species and subspecies
of homosexuality, inversion, pederasty, and "psychic her-
maphrodism" made possible a strong advance of social con-
trols into these areas of "perversity"; but it also made pos-
sible the formation of a "reverse" discourse: homosex-
uality began to speak in its own behalf, to demand that its
legitimacy or "naturality" be acknowledged, often in the
same vocabulary, using the same categories by which it was
medically disqualified.
Older forms of exercising power through classification created
status groups with a latent but powerful potential for effective
political action. Unlike traditional status groups organized around
conceptions of honor, delinquents, the mentally ill, and homosexu-
als were forged around devalued and stigmatized identities. And
yet, in the end the existence of an identity, no matter how it is ar-
rived at, may be far more crucial for political empowerment than
the particular valence associated with that identity.
The forms of classification associated with actuarial practices
are less likely to lead to a dialectic of power/resistance because
they create different ideological effects. Earlier classification strat-
egies invested the subjectivity of individuals with significance as a
by-product of their very effort to control people. Social meaning
went hand in hand with social control. Actuarial classification,
with its de-centered subject, seems to eliminate, in advance, the
possibility of identity, of critical self-consciousness and of intersub-
jectivity (cf. Habermas, 1979). Rather than making people up, ac-
tuarial practices unmake them.
The examples we have discussed represent narrow segments
of society who have been made the subject of both power and
knowledge in a greater degree than normal people. Yet it is worth
imagining what these examples tell us about the kinds of effect
widespread actuarial power might have more broadly on the polit-
ical and moral life of society. Where power is exercised through
actuarial practices there is a decline in the capacity of groups to
SIMON 793
provide identity to members and in the kind of political struggle
that identity generates.21
We may experience this decline in identity as relaxation of
historic social antagonisms. A society composed of status groups
lends itself to uncompromising and bitter war, or else highly ritu-
alized forms of alliance. Intercommunal warfare such as that be-
ing waged in Beirut or Ulster is generated by the perception that
moral disagreement stands behind political dispute and moral sur-
vival behind political victory (Mauss, 1966; Weber, 1948b).
In the late nineteenth century scholars were already proclaim-
ing the death of status and birth of class society defined by con-
tractual position rather than ascribed identity. Societies where
classes or interest groups predominate downplay the role of moral
disagreement in politics. One struggles for power; honor is at best
a secondary concern. Hirschman has argued that this diffusion of
social tension was seen as a primary virtue of capitalism from the
eighteenth century on (1977). But the classes constituted by the
disciplinary processes of an industrial society remained potent
sources of identity and, of course, of political action.
Today's actuarial practices presage the development of a third
model of politics where neither status nor class provides the basis
for engagement. Indeed, we have no real models of what aggre-
gate politics look like, but extrapolating from current conditions
leads to a disturbing picture. Actuarial practices can mobilize seg-
ments of the population and form majorities that have no patterns
of shared experience or structures of association and no basis for
understanding themselves as motivated by a common cause. The
model of aggregated plaintiffs in class action lawsuits discussed
above suggests that such majorities would be politically neutered
and incapable of projecting a common wiU.22
Between the status group on the one hand, and the aggregate
on the other one can speak of an attenuation in the moral density
of social relations. I call this process de-moralization. I should be
clear that by moral I do not mean a system of ethical beliefs. To
say that status groups understand themselves morally means that
they provide a comprehensive interpretation of what it is to be
21 There is possibly a third and important consequence to the prolifera-

tion of actuarial practices: a shallowing of the interiority of the individual sub-
ject. The social practices that invest significance in the depths of subjectivity
(confession, introspection, exan1inations, psychoanalysis) have been replaced
by practices that invest attention and concern on the external features of lives
(standardized testing, new age psychologies like EST, credit checks).
22 An example of this process might be found in the depoliticization of
the American working classes since the 1930s. We tend to attribute this shift
to the rise of unions and the general increase in affluence. Yet throughout
this period we also find a rapid proliferation of actuarial practices throughout
the industrial employment situation: workers compensation, unemployment
insurance, social security, pension plans, expansion of consumer credit, etc.
human; in short they grant an identity. 23 Classes to the extent

that they are defined by external relations of production are al-
ready somewhat demoralized in this sense. Yet the possibility of
identity (or class-consciousness as it is sometimes called) remains
latent. It is possible that members of aggregate formations under-
stand themselves by the formal parameters that make up the ag-
gregate. But if so, this is a self understanding so privative that it
can only generate ethical or political beliefs by associating other
morally rich conceptions, and these invariably fail to describe the
full aggregate. Indeed, intrinsic to the logic of aggregates is a frag-
mentation of subjects into the numerous formal attributes that
could describe them.
It is the moral density of identity that constitutes both the
stigma of stereotypes and the empowerment of consciousness rais-
ing. To the extent that group differences created by historical
processes of domination are demoralized by actuarial representa-
tions (as they are for instance in insurance premium setting) it be-
comes more difficult for disadvantaged groups to generate political
power.
Insurance classifications differentiate people in ways that
would normally be considered offensive. The ideological power of
actuarial practices is their ability to neutralize the moral charge
carried by these forms of difference. As a consequence, the polit-
ical power of these forms of difference to generate identity and
thus mobilize constituencies for change is diminished while pat-
terns of domination remain.
Nancy Hartsock has recently argued that post-modernist theo-
ries of knowledge pose a threat to the struggle of traditionally op-
pressed groups (1988). While attacking the totalizing claims of the
dominant enlightenment rationality, Hartsock· argues that post-
modernism has the perverse effect of dismissing the sovereign sub-
ject and the political potential of knowledge at precisely the mo-
ment when oppressed groups are engaged in struggle for political
and epistemological change (1988).
Whatever disempowering effects post-modernist discourses
have on the intellectuals who engage in them, the de-centered sub-
ject they describe is being materially constructed by the actuarial
practices discussed here. Precisely at the point where oppressed
groups such as women are ready to begin challenging the construc-
tion of their identity by the dominant social forces, power is with-
drawing its charge from these contested identities. At a time when
feminism is striving to focus social attention on the moral and
political implications of gender in society, the actuarial use of gen-
der denies its importance as a moral or political issue. To achieve
political change feminism must mobilize women through their
23 This is not unrelated to ethics, for ethical systems presuppose some

conception of the good human life.
SIMON 795
identity as women.24 But the political charge of identity is depen-
dent on its continuing political and moral relevance in society at
large. Rather than reinforcing the perception of gender as a
charged distinction in society, the insurance usage casts it as a neu-
tral division.
C. Antidiscrimination Jurisprudence as a Weapon against the

Ideological Effects of Actuarial Practices
Brilmayer and her co-authors find it disturbing that an insur-
ance-oriented critic like Benston can see little problem in using an
actuarial justification for treating women differently in annuity
contributions when on the same logic (1983: 228):
...one could deny parole to a black while granting the
parole request of a similarly situated white, so long as it
could be shown that recidivism correlates with race. Col-
lege admissions officials could use ethnicity as a factor to
predict the grade point averages of applicants, if in fact the
two were shown to be correlated.
It is precisely because gender is treated as unproblematic that
it is offensive to them. They want to say that, just as race and
ethnicity cannot be used to make social allocation choices, even if
they are rational, gender is also out of bounds. But to make this
argument we must leave behind the focus on individualism and
discover the more radical justification for Manhart in the power of
antidiscrimination law to resist the de-moralization of difference.
Justice Stevens shares with the rights-oriented defenders of
Manhart the view that Title VII is primarily about individuals
rather than groups. A scheme such as the one in Manhart, which
treats individuals on the basis of a group classification, where that
group is one of several types targeted by Title VII, is presump-
tively invalid. Yet Stevens's antidiscrimination jurisprudence, as
laid out in both his statutory and constitutional opinions, suggests
that the social construction of group identity plays a significant
role in understanding the meaning of the law. Stevens has argued
that the law mandates intervention where important distinctions
are made between people on the basis of habit. This leads to the
view that the law is not merely a shield to protect individuals from
group-think, but a sword to alter the way we think about groups.
In Manhart, Stevens argues that group insurance, as the re-
tirement benefit plan at issue, always involves a spreading of loss
in the group. "Healthy persons subsidize medical benefits for the
24 Martha Minow has raised important questions concerning the dangers
of feminism disregarding differences among women, but this danger is a natu-
ral consequence of mobilizing a population for political action. Every effort to
reinforce one form of identity is a political act of power that has the effect of
reducing the significance of other bonds. When societies stress nationalism,
for example, they do so precisely to suppress the outbreak of other forms of
class, or ethnic struggle (see M. Minow (1977) "Forward: Justice Engendered"
101 Harvard Law Review 1, 10-95).
less healthy; unmarried workers subsidize the pensions of married

workers; persons who eat, drink, or smoke to excess may subsidize
pension benefits for persons whose habits are more temperate"
(Manhart, 435 U.S. at 710).
If gender is viewed as an appropriate basis for halting the loss
spreading in favor of a contradictory drive to internalize losses it is
"nothing more than habit [that] makes one 'subsidy' seem less fair
than the other" (Manhart, at 410, emphasis added, footnote omit-
ted). The habitual construction of difference rather than prejudice
per se invokes intervention by antidiscrimination law.
Justice Stevens defined habit more clearly in his dissent to
Mathews v. Lucas (427 U.S. 495, 520-521 (1976)):
Habit, rather than analysis, makes it seem acceptable
and natural to distinguish between male and female, alien
and citizen, legitimate and illegitimate; for too much of our
history there was the same inertia in distinguishing be-
tween black and white. But that sort of stereotyped reac-
tion may have no rational relationship--other than pure
prejudicial discrimination-to the stated purpose for which
the classification is being made.
The point is that practices, such as the one in Manhart that
treat the gender difference as unproblematic, make it more diffi-
cult for the uprooting of habituated gender assumptions to unfold.
This, and not hidden prejudice, makes the actuarial use of gender
for insurance purposes unacceptable. Antidiscrimination law, in
both its Equal Protection and Title VII forms, has the effect of sus-
pending the use of certain differences for social policy purposes.
The traditional justifications for this have been individualistic and
defensive; we need to protect individuals from stereotyped reac-
tions. The view suggested here is that this suspension has an af-
firmative and ideological aim. It seeks to maintain the highly-
charged character of certain differences in order that a process of
political struggle dependent on that charge be able to continue.
But for this to make sense we must give up the idea that it is only
the individual unfairly trapped in her group circumstances that is
the target of antidiscrimination law. The social movement seeking
to revolutionize the social circumstances surrounding a certain
form of difference is also an important target.
In this analysis, antidiscrimination law is concerned with iden-
tity. Identity needs to be protected against two kinds of dangers.
First, the value of identity as a means for change is frustrated by
the existence of negative stereotypes which so devalue people that
they cannot mobilize for change. Second, identity is challenged by
practices that treat it as having no underlying character. While we
are more used to the first type of challenge, the second may pose
the greater problem as explicit forms of racism and sexism give
way to silent structural inequalities that diminish the moral and
political tension of domination.
SIMON 797
Not too far in the future we may look back at Manhart and
see it as a case about actuarial practices. From that vantage it may
show up as one point in a growing line of resistance to the use of
actuarial techniques in exercising power over people. At present
these resistances are diffuse and more or less unconnected. Stan-
dardized testing, for example, has come under increasing criticism.
Proposals to use actuarial prediction in determining criminal
sentences has led to a large outcry. It remains, however, difficult
to recognize these resistances as related. In part this is because we
have grown up in a society that is constantly testing and compar-
ing us. In part it is because resistance is translated into discourses
such as legal rights that deemphasize the methods of power in
favor of its purposes.
It is not difficult to see why actuarial classifications would be-
come an important target for feminists. Benefit systems are a vital
part of the new property, and thus an obvious concern for those
seeking to empower women. 25 But the fact that these benefit sys-
tems are actuarially based is also important for ideological reasons.
To be effective as a social movement, feminist politics must seek to
mobilize women as a political community. This process is under-
mined by representations that define women as an aggregation.
Just as homosexuals have generated power for resistance from the
very social construction of identity that constituted their oppres-
sion, women must tap the power of identity invested by the history
of their domination by men (Kaplan, 1982).
IV. CONCLUSION
If I am right, the use of identity to produce political power is
becoming more difficult as actuarial practices are becoming more
important in our society. Cultural change is slow and subtle. It is
hard to describe what is going on without recourse to metaphors.
Lacking any imaginable regression coefficient that could prove the
effects of actuarial practices, we are left with only the possibility
of shared responses to the way these practices operate on us as
rituals. In this article I have sought to invoke and explore some of
these responses.
As the institutional fabric of society is colonized by actuarial
practices it becomes more difficult to invoke political and moral
responses in ourselves and others (this is what I have meant by
their ideological effect). It is not that we are silenced but increas-
ingly our appeals are lost among what the novelist Don Delillo
(1985) called the "white noise" of consumption. As the sense of
politically and morally charged differences is diminished, we un-
derstand ourselves most strongly in the shifting and listless collec-
25 A number of attacks on benefit plans have made it to the Supreme
Court on the issue of gender discrimination, see Geduldig v. Aiello, 417 U.S.
484 (1974), and General Electric Co. v. Gilbert, 429 U.S. 125 (1976).
tivities of lifestyle and consumption. The long-term result for soci-

ety is a reduction in the possibility of political change.
The disciplines were used in the nineteenth century to under-
mine the political potential of the urban "swarms" through tech-
nologies of surveillance, isolation, and normalization. Actuarial
practices are used today to further diminish the potential for
resistance by changing the representations through which we come
into ourselves as collective subjects. Rather than concentrating
power on particular "dangerous" subjects, actuarial technology
changes the social context to make it immune to those subjects
(who thus no longer need to be confined and controlled). Barri-
cades are useless against a power that operates in the abstract
space of statistical tables.
For most of our history, power has generated resistance by the
subjectivities it creates as a by-product in the very people on whom
it is exercised. Without any formal suspension of political rights
our institutions are becoming more immune from invoking polit-
ical engagement. Actuarial practices are gradually forming a sur-
face over institutions and social policy arrangements that make
them nonconductive of political and moral charge. This means
that they do not invoke the sense of political and moral identity in
the people that are represented through them.
To recognize this danger we must focus on the ideological ef-
fects of the seemingly mundane technical decisions we make con-
cerning how to implement social policies. Social policy is inevita-
bly ideological not only in its substantive goals, but in the
techniques through which it is realized; every way of organizing
and managing people produces representations of who they are.
But to represent does not automatically mean to constitute. The
effectiveness of a system of representations is open to contestation.
Law remains crucial in any such contest, not simply because it it-
self is one of the most potent ideological structures in society, but
because it contains ideological weapons that might be turned
against the representations that disempower us. The decision in
City of Los Angeles Department of Water and Power v. Manhart is
an example of such resistance.
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[4]
Suspended in Space: Bedouins under the Law of Israel
Ronen Shamir
This anicle demonstrates the legal consequences that flow from the con-
ceptualization of the Bedouin as rootless nomads and from the imposition of
certain legal categories of land ownership as means for solving disputes across
the indigenous/nonindigenous divide. I argue that the law works by imposing
conceptual grids on time and space and that this conceptual ordering, in tum,
gives rise to a series of binary oppositions that affirm the distinctions between
"us" (Progressive Westerners) and "them" (Chaotic Oriental nomads). Once
the Bedouin are placed on the side of nature, judicial practices tend, on the
one hand, to objectifY the denial of Bedouin claims of land ownership and, on
the other hand, to facilitate state policies of forcing the Bedouin into urban
settlements.
In the Negev we have to protect the desert, the non-settlement.
-D. Ben Gurian, The Problem of the Negev, 1955:107
We should transform the Bedouins into an urban proletariat-

in industry, services, construction, and agriculture. 88% of the
Israeli population are not farmers, let the Bedouins be like
them. Indeed, this will be a radical move which means that the
Bedouin would not live on his land with his herds, but would
become an urban person who comes home in the afternoon
and puts his slippers on. His children would be accustomed to
a father who wears trousers, does not carry a Shabaria [the
traditional Bedouin knife] and does not search for vermin in
public. The children would go to school with their hair prop-
erly combed. This would be a revolution, but it may be fixed
within two generations. Without coercion but with governmen-
tal direction . . . this phenomenon of the Bedouins will disap-
pear.
-Moshe Dayan, Ha'Aret% interview, 31 July 1963
I am grateful to Shlomo Deshen, Patricia Ewick, Emanuel Marx, Alexander Kedar,

and Menachem Mautner for their insightful and constructive reading of earlier drafts. I
also thank four reviewers of the Review for their excellent suggestions for revisions and
clarifications. The article is based on research supponed by the Israel Foundations Trust-
ees and the Israel Science Foundation. I also thank Nelly Elias, a research assistant, for
her invaluable help. Address correspondence to Ronen Shamir, Depanment of Sociol-
ogy/Anthropology, Tel Aviv University, Ramat Aviv, P.O. Box 39040, Tel Aviv, Israel. E-
mail yonit@spirit.tau.ac.il.
232 Bedouins Under the Law of Israel
The torts in the Ordinance are nets upon nets, imposed, one
upon the other, on a given set of facts. Some ofthe nets do not
"capture" a given set of facts. At times, a given set of facts is
captured by one net alone. At times, it is captured by a number
of nets, all according to the intensity of the warp and woof in
the various nets.
-Justice A. Barak, Civil Appeal 243/83, P.D. 39:1, 113, 126
The Argument: Theory
T h e purpo.e of thj,; article ;, to account f<>< way' in which

the storytelling techniques of the law objectify the gradual extinc-
tion of the indigenous Bedouin culture in the Israeli Negev (the
country's desert-like southern part). Two material practices are at
the forefront of Israeli policies concerning the Negev: mass trans-
fer of the Negev's indigenous Bedouin population to planned
townships and a corresponding registration of the Negev lands as
state property. 1 A cultural vision complements these practices:
The Negev is conceived as vacuum domicilum-an empty space
that is yet to be redeemed, and the Bedouin, in turn, are con-
ceived of as representing a defeated culture in its last stage of
total disappearance from Israel's historical scenery. As in other
colonial settings, a cultural vision complements the physical ex-
traction of land and the domestication of the local labor force
and, again not unlike other colonial settings, the law of the colo-
nizers creates an infrastructure for the advancement of such
goals. 2
Yet the law should not be treated as a mere arm of the state,
as an instrument at the service of interests external to it, or even
as a mere echo of the specific historical-cultural context in which
it is embedded. We should begin to speak about law as culture
1 The Bedouin population of the Negev has been estimated at 100,000 (Adva
Center 1996). The transfer of the Bedouin population, the resettlement, and the appro-
priation of land had taken place since the early 1950s in several stages. In 1953, all the
Bedouins were rounded up in an "enclosure zone." In 1975, an official policy of building
permanent settlements and moving the Bedouins into them had been initiated, accompa·
nied by aggressive implementation of zoning and building regulations that resulted in the
mass destruction of houses in areas other than the ones designated for permanent settle-
ment. All other Bedouin permanent settlements were labeled "spontaneous," in contrast
to "planned." Land appropriation had taken place throughout the period. For a fuller
account, see Brand et al. 1978. For a comprehensive bibliographical list on policy issues
see Meir & Ben David 1989.
2 On the view of the Bedouin as a defeated culture, shared by a host of policymak-
ers, planners, and scholars, see, e.g., Braslavski 1946; Shmueli 1980.Jewish ownership and
control of land is perhaps the single most important aspect of activist Zionism. From this
perspective, the "problem" of the Bedouin is the "problem" of all Arabs of Israel. In this
article, however, I emphasize the panicular meeting of Zionist culture with the nomadic
"other."
Shamir 233
rather than only about law as a mirror of culture (Cover 1983).

Law should be understood in terms of its own mode of opera-
tion: a mode that actively contributes, as a kind of a surplus
value, to the reproduction of law's own distinction. The basic
commitment of modem law to stability, certainty, and calculabil-
ity, already noted by Weber's (1978) analysis of law and capital-
ism, is the primary means by which modem law constitutes itself
as an autonomous normative universe of discourse. The modern
law of the West epitomizes what Dewey (1958) described as the
obsessive philosophical and cultural search for certainty and sta-
bility, and what Benhabib (1990) described as the Faustian-Carte-
sian dream of order. In his cultural criticism, Dewey (pp. 21-22)
talks about "intellectualism" as the sovereign method that privi-
leges knowledge based on schematization, isolation, and decon-
textualization over knowledge grounded in experience and con-
text. Benhabib (p. 1437) discusses the Cartesian metaphor of the
two cities: "the one traditional, old, obscure, chaotic, unclear,
lacking symmetry, overgrown; the other transparent, precise,
planned, symmetrical, organized, functional." The law, embed-
ded within these aspirations and dreams, is not a mere instru-
ment for their activation. It is a mode of action and cognition
that simultaneously validates and constitutes a modem identity
grounded in these terms and one that affirms its own specific
autonomous universe of order. The commitment to stability
through schematization and planning, in tum, is actively worked
out through what I refer to here as the law's "conceptualist"
mode of operation.
Conceptualism here is a mode of cognition based on the be-
lief that the most accurate and reliable way for knowing reality
(hence "truth") depends on the ability to single out the clearest
and most distinct elements that constitute a given phenomenon.
Conceptualism is a praxis of extracting and isolating elements
from the indeterminate and chaotic flow of events and bounding
them as fixed categories. Each concept must relate to only one
aspect of things, and the pure concept is simple and well demar-
cated, in contrast to vague and flexible images and sensory data.
Conceptualism, in short, works through isolation, division, sepa-
ration, and fixity, conceiving reality as a series of moments and
not as an ongoing process. 3
In this sense, conceptualism produces a distinct mode of nar-
ration. In their articulation of a sociology of narration, Ewick and
Silbey (1995) discuss the historic absence ofthe narrative form in
3 The attraction of conceptualism stretches back to the Platonic and Aristotelian
belief that fixity is a nobler and wonhier thing than change. In this ruling philosophical
tradition, reality is conceived to be single, unitary, and unalterable. Concepts, being
themselves fixities, agree best with this fixed nature of reality. They express the hope that
underneath all this flux there is an eternal world-a logic that is superior to the facts and
that can be revealed through conceptual thought.
legal scholarship as a self-conscious achievement designed to

ground such scholarly work in the realm of scientific authority.
Here, I extend their argument to law and the judicial discourse
itself. The narrative has been associated with particularity, ambi-
guity, and imprecision and as such has been resisted in the legal
format. Yet I suggest that this does not mean that judicial dis-
course does not produce narratives; rather, it is committed to the
production of narratives that are constructed and organized
within rigorous rules of conceptual order. This means that
judges do not necessarily deny the voice of narrators external to
the legal system (e.g., witnesses) by their mere silencing, but that
they typically reassemble such narratives in ways that assign them
a more orderly and methodical appearance. This reassembly, in
turn, sustains the powerlessness of the "original" narrator and
validates the moral and rational superiority of the powerful. In
other words, conceptualism marks a process whereby a given nar-
rative is deconstructed and then reconstructed as a novel one:
one which acquires the specificity of narrating itself in relation to
a rigid set of pregiven storytelling rules, and one which becomes
an act of fitting the details to already objectively existing frames
and matrices. Thus the law works by imposing a conceptual grid
on space-expecting space to be divided, parceled, registered,
and bounded. It imposes a conceptual grid on time-treating
time as a series of distinct moments and refusing any notions of
unbounded continuity. And it imposes a conceptual grid on
populations-treating them as clusters of autonomous individu-
als who should be readily identified and located in time and
space (also see Merry 1988:888, developing Foucault's notion of
modern capitalist law as a surveillance mechanism based on the
timetable, the cell, and the panopticon).
The conceptual ordering of reality, for example, underlies
what feminist jurisprudence currently identifies as the dominant
"separation thesis" in law: the legal construction of a physically
and psychologically bounded [male] individual who must be pro-
tected against the threat of penetration. Analyzing this deeper
layer of legal consciousness, feminists argue that the law is bound
to deny experiences that are grounded in a "connection thesis":
that which emphasizes an ethic of mutual responsibility and care
and which takes account of the shifting boundaries of the self
(West 1993). Feministjurisprudence, with its emphasis on con-
nection, provides a powerful critique of conceptualism thus de-
fined. Concepts are unable to express the most important fea-
tures of human coexistence, and their limitations are exposed
once we consider the multiplicity of continuities, heterogeneity,
and overlapping dimensions underlying the complex webs of so-
cial relations. 4
4 The limits and force of conceptualism are hard to reveal. The power of legal con-
cepts over women, writes Holtmaat (1989:482), "is extremely difficult to reveal because
Shamir 235
Likewise, the conceptualist culture of law has significant

ramifications at sites of conflict over the so-called indigenous/
nonindigenous divide. It seems to me that an important achieve-
ment of recent sociolegal scholarship on law and colonialism is
that it portrays the form of modern European law, rather than its
specific content, as the deeper layer of its mode of operation.
Looking at colonial law in different settings, sociolegal research
strongly indicates that the culture of law, analytically distinct
from the specific uses into which it is put, is first and foremost a
"culture of conceptual order" (Mertz 1988; Moore 1990; Merry
1991; Espeland 1994; Webber 1995). Consequently, it is to how
modern law understands the "nomad" through concepts of time
and space that we must look at in order to make sense of the
typical treatment of indigenous populations under the law's com-
mand. As the following account shows, the resistance of law to
elements that escape its conceptual grids results in the annihila-
tion of the actions, movements, and histories of people who do
not fit the frame.
The Argument: Praxis
Several accounts indicate the complexity of the relationship

between the Bedouin and the Negev's land. Historically,
Bedouins had their own legal mechanisms for deciding land
ownership disputes and for acquiring, leasing, selling, inheriting,
and marking a given area's boundaries. 5 The single most impor-
tant point in all these accounts is the strong role that land owner-
ship plays in constructing meaning and power 'in the lives of the
Bedouins. The land is said to contain the personality of its owner
and as such cannot be taken away even with changed circum-
stances or long periods of absence. Further, ownership of land is
a primary mechanism of stratification and distinction, relegating
Bedouins without land to an inferior position in their society. 6
The strong sense of ownership and belonging is only one as-
pect of an account that challenges the idea of the Bedouin as a
rootless nomad. Other accounts describe the Bedouins' quite ha-
bitual and fixed patterns of movement in space. The Bedouins
establish permanent places of summer and winter dwellings, and
pastoral activities are relatively fixed: Some members of the fam-
these concepts are part and parcel of our 'natural' world; they are entirely self-evident, as
invisible to us as the water of the ocean is to the fish who live in it."
5 On the legal mechanisms of Bedouins, see Halil Abu Rabia 1988; Lavie 1990.
6 Kersel et al. 1991. This fact helps explain the limited success of the government's
efforts to concentrate the Bedouins in designated planned townships. Only 40-45% of
the Bedouin indigenous population moved into townships (Ben David 1988; Hamaisi
1990). Bedouins who moved into townships and signed leasing agreements with the state
mainly belong to the category of nonowners. Bedouin owners, on the other I) and, refuse
to move to lands that they consider to be owned by other Bedouins (Marx 1974, 1988;
Halil Abu Rabia 1988; Ben David 1988).
ily head to grazing areas at some periods of the year while the
rest, including the head of the family, stay behind in the perma-
nent place of residence (Aref Abu Rabia 1988; Marx 1984). The
tent, perhaps the most visible symbol of nomadic life, also
emerges as a rigid structure that orders social life according to
strict spatial rules (Havakuk 1986). At present, there are more
than 150 permanent Bedouin settlements in the Negev, all la-
beled "spontaneous" by the authorities, a label which affirms
their [mis]treatment as "unrecognized" and "illegal" settlements
that are not entitled to basic social and public services. In fact,
one study concludes that the efforts of the Israeli government to
force the Bedouins into designated townships only encourage
the Bedouins to establish more permanent settlements as means
of protecting lands that they consider their own (Marx 1988).
Such accounts of the relationship between Bedouins and
land are almost entirely absent from Zionism's "official story." A
host of historians, geographers, reporters, engineers, policymak-
ers, and educators emphasize the rootless character of Bedouin
life and describe the Bedouin as lacking the fundamental and
constructive bond with the soil that marks the transition of
humans in nature to humans in society (hence, for example, the
distinction between "planned" and "spontaneous" settlements).
One aspect of this official story emphasizes the emptiness of the
Negev, while another aspect discovers the Bedouin nomads as
part of nature. Both aspects ultimately converge into a single tra-
jectory: an empty space that awaits Jewish liberation, and a no-
madic culture that awaits civilization. 7
The law plays a crucial role-through its distinct logic of or-
dering and its techniques of surveillance-in turning the Zionist
vision into a taken-for-granted objective reality. The overall result
of the treatment of the Bedouin under Israeli law is that a fixed
and rigid concept of nomadism is substituted for a historical view
of the Bedouin trajectory. Nomadism becomes an essentialist
ahistorical category that provides rational foundations for appro-
priating land on the one hand and for concentrating the
Bedouins in designated planned townships on the other hand.
Nomadism, associated with chaos and rootlessness, is the perfect
mirror image of modem law, which assumes and demands the
ordering of populations within definite spatial and temporal
boundaries. Nomadism becomes a deviance that modem law
7 Thus, Zionism appears as a savior of both people and land: "The Bedouins of the
Negev have always been the backward element among the Arabs ofEretz-Israel, and Israel
is the only country that implements a plan of binding them to the land.... [T]he effect
of law and order penetrates the Negev and the people of the desen become tillers of the
soil" (Shimony & Muzery 1955:101). For a more detailed account of the construction of
the state's practices as benevolent, see Goering (1979). The best critical account of this
vision and its distribution in texts appears in the fantastic essay ofl.avie, in which she, an
anthropologist, and her American husband, record a Bedouin "positioned as literary
critic of his Eurocentric textual representation" (The Hajj, Lavie, & Rouse 1992).
Shamir 237
cannot but attempt to correct. The basic sanction for nomadism

is exclusion from the social realm and the positioning of the no-
mad on the side of nature. Consequently, nomads acquire two
important properties: First, they become invisible to the law-a
property that allows the state to freely register lands as state-
owned and to deny counterclaims of ownership. 8 Second, they
become movable objects-a property that allows the state to
freely move them in space. Once the Bedouin is placed on the
side of nature, the results oflegal disputes between Bedouins and
the state become objectively inevitable and morally justified. Fur-
ther, when the nomad eventually reappears from the ensuing ob-
livion, that nomad becomes a trespasser, a lawbreaker or, at best,
a creature taking its first steps toward socialization.
Israeli law comes to life in judicial proceedings in which his-
tory, culture, misery, hopes, intentions, policies, and traditions
are encoded and reconstructed in ways that transform the com-
plex experience of the Bedouin into a one-dimensional truth.
Judges provide accounts that complement the Zionist commit-
ment to the Jewish control and redemption of land. Yet the law
contains its own constitutive technology. On the one hand, it or-
ders judges to order the story of the Bedouins-both in the sense
of issuing a command and arranging reality-according to objec-
tive categories, classifications, rules, and procedures. The carriers
of law are always busy validating the law's autonomous specific-
ity.9 On the other hand, the application of conceptualist law to
the Bedouin should not be exclusively explained in terms of Zi-
onism's thirst for Iand-in terms of external political interests
that impose themselves on courts of law, or in terms of a conver-
gence of material interests between the juridical and political ap-
paratuses of the state. Rather, the constitutive technology of Is-
raeli law-embedded as it is in the legacy that the Israeli legal
system willingly inherited from former colonial powers (England,
in particular)-performs the crucial task of asserting Zionism's
identity as a modem Western project that resists a backward-look-
ing and chaotic East.
This does not mean, of course, that conceptualism causally
explains the treatment of the Bedouin. Mter all, land owned by
Arabs had been appropriated on a mass basis in the early years of
the state with the aid of a complex web of legal rules specifically
B Consider an episodic example of Bedouin invisibility, even after being concen-
trated in state-sponsored townships: "Rahat [a Bedouin township] is so overlooked that it
doesn't even warrant a consciously thought out policy of benign neglect. If, for example,
you go to Beer Sheva's central bus station and ask for a ticket to Rahat, they'll sell you a
ticket to Shoval, a nearby Kibbutz. Rahat has twenty times the population of Shoval, and it
doesn't even rate a bus stop" (Chenok 1993).
9 Following Bourdieu (1991), specificity implies no essence but a typical fonn of
producing an identity for a given field of knowledge. The specificity of law, for example,
with its concern for rules, procedures, and categories, produces neutralization and
universalization effects (Bourdieu 1987).
designed for that end. It is highly probable that Israel would have
appropriated Bedouin land even at the absence of a legal con-
ceptual scheme of the type outlined here, although perhaps with
greater difficulties because the Bedouins, unlike the Arab popu-
lation, had not been considered a national enemy. The point of
this article is not that conceptualism has been the reason for de-
nying Bedouin ownership rights (although it certainly facilitated
the denial) but that it provided a powerful cultural framework
for celebrating it as a message of progress and benevolence. In
this respect, the law cannot be conceived merely as executing in-
terests external to it but as an active constitutive force through
which one culture establishes its modern identity by rendering
another culture unfit for its underlying conceptual structure.
Once we think of law as a distinct type of narration, a particular
literary genre that tells us who we are by telling the story of
others, the law's methods and points of view must be analyzed in
their own terms.
The Invisible Nomad

In 1984, ten years after appellants lost their case in a district
court, the Supreme Court oflsrael upheld the El-Huashlla [1974]
case. Appellants, 13 Bedouins, asked the court to recognize their
rights of ownership and possession over a number of plots, argu-
ing that their rights were established on the basis of antiquity,
rights stretching many generations into the past. The State of
Israel, defending an administrative decision to deny the Bedouin
claim, argued that the disputed plots were vacant and barren
lands that fell within the statutory category of Mawat (Mawat [lit-
erally "dead"] is one of several categories according to which Ot-
toman law-parts of which remained in effect in the Israeli legal
system until the late 1960s-classified lands and assigned differ-
ent relations of ownership and possessory rights to each). The
state then relied on a 1969 Israeli law that abolished the Mawat
category and stipulated that all such lands would be registered as
state property unless a formal legal title could be produced by a
claimant. The state also pointed out that the last opportunity to
obtain legal titles for Mawat lands was granted by the British
mandatory authorities in 1921, when holders with claims of pos-
session had to apply for formal registration.
Without legal titles at hand, the only legal remedy open to
appellants was to convince the court that said lands were not of
the Mawat type. The decision focused on this single issue, com-
pelling the 1980s court to analyze legal categories of the previous
century and, incidentally, to reveal the conceptual framework ap-
plied to Bedouins in general. In order to classify land as Mawat,
the state had to meet two requirements. The first was that the
land was so distant from any town or village that a person who
Shamir 239
used the loudest voice could not be heard there. This archaic
Ottoman definition was later adapted to mean (in Mandatory
law) that such land had to be a mile and a half away (i.e., space)
from any town or village, or, alternatively, within more than half
an hour's (i.e., time) walking distance from the nearest perma-
nent settlement. The second was that the land was barren and
was not held by anyone or set aside to anyone by the authorities.
The court found that the nearest town to the disputed plots was
roughly 20 miles away. Reminding itself that this town-a jewish
"development town"-did not exist before the establishment of
the state, the court ruled that the nearest town was in fact remote
Beer-Sheva-the ancient capital of the Negev-thus providing
an even more solid support to the state's position. The court also
dismissed the appellants' claim that an old settlement (Kurnov)
did exist near the disputed lands in earlier times and, further-
more, that a Bedouin village (Seer) existed near the lands until
the middle of the 19th century. As to Kurnov, the court found
that it had been more than a mile and a half from the disputed
lands and, further, that "Kurnov was not a settlement in the sense
of the relevant statutory provisions, since it only consisted of a
police station and an adjacent Bedouin tent-encampment." As to
Seer, "the court had before it a description of the area, as it had
been observed by those who toured the Negev in the middle of
the previous century. This description reveals that in the said
area there had been no village and no agriculture, and except
for a visible Bedouin tent-encampment and wild vegetation the
whole area was nothing but barren desert" (El-Huashlla pp.
148-49).
The court ruled that the state also met the requirement stipu-
lating that the desolate land had not been possessed by anyone.
It relied on a report of a 19th-century British traveler who
"toured the area and closely studied the Negev's condition." The
traveler, the court argued, "found desolation, ancient ruins, and
nomadic Bedouins, who did not particularly work the land, did
not plough it, and did not engage in agriculture at all" (p. 150).
The Bedouins, therefore, failed to establish their rights over said
lands.
This precise way of establishing facts, however, retains its ob-
jectivity only as long as it is not concretized and contextualized.
The use of the Mawat category as a means of establishing state
rights over the disputed lands is not a value-free application of a
legal rule to a factual reality. The expectation that the disputed
land will be no more than a mile and a half from a town or vil-
lage relies on a culturally and historically specific definition of
towns and villages, one that presupposes a living presence of agri-
cultural or urban social life as a matter of fact. The Ottoman rul-
ers of Palestine, as well as the British Mandatory regime that suc-
ceeded them in 1917, tended to refrain from interfering with the
Bedouin internal and autonomous regulation of land. It was only

after the establishment of Israel in 1948 that the old Ottoman
land categories became powerful means of appropriating the
lands of the Negev (Kersel, Ben-David, & Abu Rabia 1991). It is
only then that the law appears, or rather reappears, as a concep-
tual framework which fails to capture the Bedouin form of living.
The Bedouin tent, by definition, is conceived as a nonsettlement,
in fact, part of the "wild vegetation" surrounding it, and as such
guides the court's analysis and conclusion. 1o
In the same manner, the conceptual legal framework of "pos-
session" presupposes agricultural activity; the possible existence
of a pastoral economy is thus left out of civilized forms of living.
These are conclusions that emerge a posteriori by looking at
"facts" that conceptual law itself creates; yet facts are abstractions,
and we always establish facts by isolating "a certain limited aspect
of the concrete process of becoming, rejecting, at least provision-
ally, all its indefinite complexity" (Thomas 1966:271). Further,
our conception of social facts is embedded within the particular
trcgectory and experience of our own community. As such, the
facts constitute-rather than mirror-the Bedouins' culture as
part of nature, as if it is no more than another element-along-
side vegetation-in the wilderness. The Bedouin tent, in the
court's account, is in fact socially invisible for all practical pur-
poses.11
It is from the conceptual perspective that treats the Bedouin
as invisible that the Negev appears to the court as barren and
empty:
When we add to all this [scientific evidence] the nomadic char-
acter of the Bedouin tribes and the fact that the area lacks in
rain most of the year, the conclusion reached by the first in-
stance fits this reality and the objective situation that character-
izes the area.... Witnesses ... indicate the lack of water in the
Negev that prevented the inhabitants from reviving the lands
and led them to prefer nomadic life and pasturing over an or-
dered and profitable agriculture, hereby leaving the lands in
their desolation. For generations, this situation characterizes
the area. (El-HuashUa [1974]:150)
The opposition between society and nature and between order
and chaos are implicitly invoked and objectified, leaving the
Bedouins with no legal remedy. The rule of law becomes an inev-
to In the EI-/Uati [1981] case (pp. !129, !1!12), the court justified a denial of a request
for an injunction against moving a Bedouin tent by saying that the request "concerns a
Bedouin tent that in its nature is a mobile object designed for nomadic life and to an
ongoing transition from one place to another, and the [denial of the request] only means
that the applicant would have to move his tent, and maybe also his sheep-pen, which
also-according to testimonies heard in this case-has a very mobile and tentative char-
acter, from one place to another. There is no special difficulty here or a meaningful harm
to the applicant."
11 Thus, the tent is at best romanticized in museums and other bounded touristic
parks as a symbol of the noble savages who once inhabited the desert.
Shamir 241
itable succession of precedents from which the court quotes at

large: "[l)t is important to know how the law perceives the con-
cept of working and reviving the land. This concept means: seed-
ing, planting, ploughing, constructing, fencing and all types of
adaptations and improvements such as: clearing of stones and
other improvements performed on a dead land," and all this
should result in "a total, permanent, and persisting change in the
quality of the worked land" (ibid., p. 151). Pasture, in all this,
remains an unrecognized form of living. The court's decision
thus becomes an objective application of a clear legal rule. The
Bedouin claims of possession rely, at most, on "abstract posses-
sion" that cannot serve as sufficient ground for concluding that
the disputed lands are not Mawat. 12 In other words, such "ab-
stract possession," a term the court itself coins, becomes a power-
ful legal way of making the Bedouins invisible. "Abstract" posses-
sion is a working mode of conceptualism, in the sense that it
evaluates practices and experiences through decontextualization
and abstraction, namely, "outside the narratives that constitute
them" (Ewick & Silbey 1995:199), and juxtaposes this abstraction
with the "real" project of planting and fencing.
Finally, the demand for formal and documented proofs of
ownership and possession are also rendered problematic once
put in context. Indeed, Bedouins who are asked to produce
proofs of their ownership rights are at a loss as far as documenta-
tion is concerned. The Bedouins traditionally were suspicious of
attempts to force them into registering their lands. They consid-
ered such attempts as means of turning them into subjects of an
external authority and into tax-paying and army-serving citizens.
The Bedouin historical resistance to all forms of state control
made them reluctant to take any measures toward formal regis-
tration of their lands (Brand et al. 1978). Under Ottoman and
British rule, the absence of formal documentation did not
threaten the Bedouins' control of land because their de facto au-
tonomy had largely been respected. However, this situation ab-
ruptly changed with the establishment of Israel in 1948. From
then on, the formal legal demands for establishing ownership
through documentation and registration provided another ob-
jective and powerful reason for denying any such claims. 13 In all
12 On physical, observable, and communicable possession as the origin of property
rights in the common law, see Rose 1985. Rose's essay demonstrates the strong commit-
ment of modern law to stability and certainty premised on observable control of lands
and on public records. Both means are treated as a form of unambiguous and enduring
communication. Rose shows that "possession-as-text," in turn, is premised on the exist-
ence of an interpretive community that produces and reads such symbols in a shared
manner. She argues that possession-as-text explains why the claims of indigenous peo-
ples-who lack such a priori agreed-on symbols of control over land-cannot be recog-
nized by and satisfy the common law.
15 Bedouin rights of possession were recognized by the Supreme Court in one rare
case in which some Bedouins provided documents showing that they had been granted a
"Draught Compensation" by the Israeli authorities. See El-Ka/JJb [1989]:343. Although
this, the question whether the objective legal categories are sim-
ply inapplicable to the Bedouin culture is never raised by the
court. The judge qua conceptualist approaches the Bedouins
with strict notions of land ownership, commercial and agricultur-
ally based economy, and written and time-fixed categories.
Towns and villages, titles of ownership, and orderly plowing and
seeding assume the objective character of the only culture possi-
ble, in a taken-for-granted opposition to the "culture" of the un-
civilized and feckless Bedouin.l4
Salta Mortale: The Inversion of Time and Space
The ordering of time into well-defined and clearly bounded

units is brought into its most formal expression in modern law.
The way conflicts over space are transformed into a temporal dis-
pute is a crucial element in the storytelling techniques of the law.
In this transformation, the opposition between unbounded spon-
taneity on the one hand and fixity and permanence on the other
hand is established only in order to be rationally solved by af-
firming the modernist vision of orderly time. The law creates a
series of objective temporal signposts that determine when a
story begins and ends, what kind of historical narrative may be
listened to, and what are the necessary conditions for establish-
ing temporal truth. Memory per se becomes suspect. Expressions
that describe relations to land by referring to "time immemorial"
or to "generations-old succession" may be a good way to begin a
story but a poor way for providing real hard evidence. The law
speaks in terms of dates, signed and dated documents, approved
and established enactments, and time-honored written prece-
dents. History in law is a fixed succession of preestablished points
in time, not a continuous and fuzzy process in flux. And it is the
policing of time that the Bedouins confront as an insurmounta-
ble barrier in their legal struggles. Is
In the El-Huashlla [1974] case the court was asked to hear
"old witnesses" who recalled the time-immemorial use of the land
by appellants and the generations-old respect for their rights of
ownership. Yet these testimonies faded when contrasted with the
proofs of"expert witnesses." In the last instance, the court turned
decided in favor of appellants mainly on procedural grounds, this decision could have
served the court in a subsequent principled case in which it was asked to recognize the
rights of Bedouins on grounds of "state promise."
14 The Bedouins' grievances are denied not simply because the coun refuses to lis-
ten to the Bedouins but because the coun cannot hear them; it speaks a different lan-
guage from the one they are using and it can only relate to the Bedouin story in its own
legal-cultural terms. On the idea that injustice consists precisely in this incompatibility,
see Lyotard 1988.
15 For a comparative perspective, see Wilkinson (1987:5), who praises American
couns for "enforcing laws of another age in the face of compelling pragmatic arguments
that tribalism is anachronistic, antiegalitarian, and unworkable in the context of contem-
porary American society."
Shamir 243
to the 1921 British enactment and posted it as the crucial time

barrier beyond which all memory became amnesia. From this
time onward, one story ended and a new one began:
In 1921 the Land Ordinance [Mawat] was enacted and it pro-
vided a final opportunity to gain ownership rights on Mawat
land, that had been previously revived, by giving notice within
two months from the date the Ordinance came into effect. Civil
Appeal 518/61, mentioned above, explains that whoever
missed the time, cannot regain the right to secure Mawat land
through registration, even if he revived the land before 1921.
(El-Huashlla [1974]:147)
In the El-Wakili [1983] case, decided in 1983, a number of
Bedouins claimed ownership rights over various plots that had
already been registered as state property under a 1953 law. This
law-the Land Acquisition (Validation of Acts and Compensa-
tion) Law-stipulated that if a certain land was not in the posses-
sion of its owner in April 1952, and if this land had been desig-
nated for development purposes between May 1948 and April
1952 and was still required as such, and if the Minister of Agricul-
ture would issue a certificate stating that these said conditions
were present, then said land would become state property and
would be registered as such with the Land Registrar. This law,
extremely harsh in itself, created a particular hardship for
Bedouins who wished to establish their ownership rights, because
in 1952 many of them were not present on their original lands;
most of them, if not all, had been driven off their lands and forci-
bly concentrated in an area known as the "Enclosure Zone" for
the next 25 years (Jirys 1976; Goering 1979). This massive trans-
fer is treated in legal texts as a mere contingency-as a natural
event that coincides with the asocial attributes of the Bedouins-
that does not raise any particular problems when ownership and
possession rights are established. Further, the El-Wakili decision
repeated the legal ruling that the issuance of such certificate was
in itself conclusive evidence for its truthfulness and could not be
challenged on factual grounds. "The law," the court ruled, "a pri-
ori prevents any practical possibility of appealing or contra-
dicting the facts before the certificate comes into effect" (p. 179).
Nonetheless, the court acknowledged in passing the theoreti-
cal possibility of challenging the validity of the certificate after the
fact, but went on to create a complex series of other temporal
signposts that prevented the appellants from using this narrow
opening. The court ruled that the legal time barrier that appel-
lants faced was an Israeli 1969 Land Rights Settlement Ordi-
nance [New Version], which stipulated that the only way to chal-
lenge a decision to register land as state property was through an
appeal to a district court within a given period of time. Appel-
lants did not appeal on time and hence could not now be heard.
Finally, the court established another insurmountable time bar-
rier. According to the 1969 law the registration ofland with the
registrar automatically abolished any previous conflicting right
unless fraud or technical mistakes were proven. Thus the history
of the Bedouins comes to an end no later than 1969 when a new
legal history begins.16
In the Abu-Solh [1986] case, decided in 1989, Bedouins at-
tempted to take advantage of the "fraud" opening as means of
challenging their dispossession. Thirteen appellants argued for
ownership rights on certain plots which they claimed to have pos-
sessed and worked "for years." They asked the court to declare as
null and void the transfer of said lands to state ownership on the
basis of the 1969 Land Rights Settlement Ordinance [New Ver-
sion] on grounds that they had not been notified-as required
by law-that such proceedings were underway, and they entered
the fraud argument as a possible construction of this omission.
The state responded that appellants were "nomads who never re-
sided permanently in any place whatsoever and certainly not in
the said areas." Further, the court relied on a witness who argued
that "at said period there were no Bedouins in the southern
Negev because they were concentrated in the Enclosure Zone,
under military Rule .... [T]hroughout my period of work in the
southern Negev I met only one Bedouin in an overall area of
twelve and half million Dunams." 17 The empty desert vision ac-
quires a new force here: it is empty because the state emptied it.
Nonetheless, the court treats this argument as a natural fact and
moves to uphold the ruling of the lower judicial instance on dual
grounds: The definitive rule of the 1969 law excludes evidence to
the effect that Bedouins resided in the southern Negev in said
period; and the fact that the Bedouins were not aware of the new
registration proceedings is rendered irrelevant because a notice
had been published in (Jewish) towns that were the only settle-
ments in the area. The court summarizes: "There is no evidence
that at the time of registration appellants were present in the
southern Negev as residents of a 'settlement' in the meaning of
this term as it is defined in . . . the law. Evidence for the mere
presence of Bedouins in the southern Negev is irrelevant" (p.
522). The fraud argument, consequently, is flatly dismissed. A
double bind is completed: The lands were legally and justly regis-
tered as state property because the Bedouins did not hold the
lands in said period (they were rounded up and held elsewhere,
yet this is rendered irrelevant). Alternatively, Bedouins may have
been in said area but as invisible nomads who cannot prove any-
16 The court also added that the state must be protected from the reopening of 30-
year-old disputes. Compare this sense of historical time with the U.S case of County of
Oneida v. Oneida Indian Nation (1985), in which a 1795 agreement that transferred
100,000 acres to the State of New York was held invalid because it lacked federal approval.
In this case, the play of time did not work against the Indians. See Wilkinson 1987.
17 Four dunams = one acre.
Shamir 245
thing because the temporal signpost prevents them from doing

so. Is
In these legal cases, the events of the 1950s and the 1960s
become a remote prehistory that may be told as an inconsequen-
tial tale. This is the description which appears in the El-
Wakili[l983] case:
There is no dispute that appellants are Bedouin citizens of
Israel who held lands in the Lakiaa area since the establishment
of the state and until 1952 ... when they were transferred for
security purposes from the Lakiaa area to the Tel-Arad area.
Appellants were permitted to return to the Lakiaa area in 1975,
in exchange for the lands they held in the Tel-Arad area ....
The agreement entered in 13.3.75 between Israel Land Au-
thority and the Sheikh (Chief) of the El-Sanaa tribe to which
appellants belong stipulated that the tribe would move to
Lakiaa ... and that Israel Land Authority would lease it a 5000
Dunams area in return for leasing fees. . . .
Appellants claim ... that they and their predecessors held
and worked the land for many generations ... and have rights
of ownership in these lands ...... .
The facts reveal that appellants did know when they re-
turned from the Tel-Arad area that the lands . . . were not
theirs (or were not theirs any more), and therefore agreed to
lease them. (Pp. 176-82)
Curious inversions occur. Lands from which the Bedouins
were uprooted were registered as state property during the time
of their forced stay in another area. When they return, with per-
mission, or claim their original ownership rights, they enter into
a new spatial universe and a new temporal order. They cannot
challenge the change of ownership due to new legal time barri-
ers that have since been erected. At the same time, they return to
their original lands under the guise of newcomers. What once
was theirs is not theirs anymore, and their refusal to enter into
leasing agreements results in their criminalization as trespassers
(as indeed happens in a corresponding legal proceeding), while
their consent to enter into such leasing agreements serves as evi-
dence that the land had never been theirs. In the final instance,
these inversions are grounded in a dialectical scheme which puts
the law first and history later. It is this reordering that ultimately
allows the court to articulate a taken-for-granted narrative in
which the returning Bedouin is "transubstantiated" into a law-
breaking trespasser; a narrative that, as we shall see, also supports
other ways in which the court retells the Bedouin history.
18 On the legal consequences of the common law's concept of time in a colonial

setting, see Moore 1990. Moore shows that the common law's demand for fixed periods
of limitation on claiming and proving legal rights conflicted with an Mrican "indetermi-
nate time frame" for remembering a grievance, a title, or a debt, resulting in the former's
view of the latter as "defective."
Bedouin Townships: Nature Overcome
From 1975 onward, the Bedouins have been threatened with

the prospect of yet another mass transfer: this time, from their
scattered forms of "spontaneous settlements" into planned town-
ships where they would modernize, develop new habits, and be-
come accustomed to life in permanent houses. Yet the
Bedouins-suspecting that by moving into the townships they
waive their ownership rights over lands they consider as their
own-are more than reluctant to respond to these resettlement
plans. It is estimated that nearly half of the Bedouin population
of the Negev, after 20 years of the state's transfer attempts, still
resists their forced uprooting.
Consequently, a whole series of practices were developed in
order to make the lives of recalcitrant Bedouins as unbearable as
possible. In the 1980s, as the transfer of the Bedouins to the
emerging townships was still moving at a very slow pace, the gov-
ernment accepted the recommendation of an intergovernmental
committee and began to aggressively implement the 1965 Law of
Planning and Construction as means of preventing the Bedouins
from expanding and improving their "unrecognized" (i.e., le-
gally unseen) places of residence outside the townships. The
principle is remarkably simple: The Law of Planning and Con-
struction requires permits for constructing houses and for mak-
ing changes in existing constructions. It further provides for a
penal mechanism that includes administrative and legal demoli-
tions orders for violators of its regulatory provisions. By defini-
tion, the designated areas for the townships were declared as the
only lands on which Bedouins could legally asked for permits
and construct houses. All other areas-unregulated under the
state's planning law-are forbidden zones. Consequently, new
constructions cannot be legally built even if the Bedouins wish to
acquire permits, thousands of already existing dwelling units be-
come potential targets for demolition, and a massive number of
demolition orders are routinely issued to Bedouins all across the
Negev. 19
The Bedouins are trapped. From possible claimants in land
ownership disputes between them and the government they are
turned into criminal defendants under the provisions of the Law
19 Report of the Markovitz Committee (State of Israel Ministry of Interior 1986).
The report recommended the demolition of 6,601 Bedouin constructions in the Negev
and explicitly stated that "the enforcement of the Law of Planning and Construction in
the Bedouin sector is tightly connected to the policy of settlement in the urban existing
and planned towns" (p. 59). It is noteworthy that under the Law of Planning and Con-
struction the local population, through a network oflocal committees, takes responsibility
for developing construction guidelines. The Bedouins were invited to participate in
neither the discussions on the Negev's planning programs and nor on their own resettle-
ment policies. The Markovitz Committee did not hear or consult the Bedouins of the
south in its deliberations.
Shamir 247
of Planning and Construction. The original lands from which the

Bedouins were deponed have been appropriated, they are de-
nied the possibility of developing the lands on which they cur-
rently reside, and their refusal to cooperate with another forced
transfer turns them into lawbreaking citizens. Most important,
the strict and context-blind implementation of the Law of Plan-
ning and Construction allows the authorities to avoid having to
confront the Bedouins' claims of ownership. The original collec-
tive conflict over land is diffused and fragmented into an endless
series of minute and meticulous acts in which the Bedouins are
targeted as individuallawbreakers. 20
Demolition orders for illegal construction are a primary
source of litigation that brings Bedouins to court. In these pro-
ceedings, there are strong pressures against attempts to convince
judges that the formal application of the law to the Bedouins un-
justly ignores and, worse still, perpetuates historical injustice and
cultural oppression. First, the tendency of many lawyers for the
defendants is to look for that which makes the particular case an
exceptional one, hoping that special circumstances will ease pun-
ishment and result in a considerable postponement of the demo-
lition order. The tendency, in other words, is to individualize the
case and not to throw it into a collective pool. "I represent a per-
son, not an idea," one lawyer aptly puts it, acknowledging the
greater readiness of courts to hear arguments that particularize
and individualize the case rather than those which speak in the
name of a cause (Shamir & Chinski 1995). Second, both the
prosecution and the judges have on their side an impressive body
of precedents that denies the relevance of the past to the law-
breaking activities of the present. Even when the general context
and the particular history of the Bedouins is acknowledged,
judges tend to emphasize the prime and overriding importance
of the rule of law; that is, the necessity to demonstrate that courts
will severely punish those who show flagrant disrespect for the
formal provisions of the law.2 1
20 On the criminalization of nomads as a means of social control, compare Camp-

bell 1995.
21 See, e.g., District Committee v. El.Sanaa [1987]. In general, I fully agree with the
reviewer of this ankle that any discussion of Bedouin land claims needs at least to men-
tion the lawyers behind some recent assertions of Bedouin land rights, because law con-
sists not only of courts and litigants but also of lawyers who represent those litigants. The
issue of Bedouin representation by both public interest and private lawyers and the way
these patterns of representation affect the legal situation of the Bedouin population is
discussed at length in Shamir & Chinski ( 1995), reponing to a comparative "cause lawyer-
ing" project organized by Austin Sarat and Stuan Scheingold. In that paper, we create
links between the structure of the organization of the legal field, professional ideologies,
and resources available to lawyers, on the one hand, and the form and quality of Bedouin
representation at court on the other hand. Here I only refer to this issue in passing and
imply that lawyers for the Bedouin find it difficult to transcend common forms of argu-
mentation and to develop new concepts of collective historical rights. The few lawyers
who are committed to the Bedouin cause often tend to reproduce, rather than disturb,
The El-Sanaa [1987] case, decided at the District Court of

Beer-Sheva in 1987, is an extreme example of the reasoning that
the court applies when it acknowledges a gross injustice that had
been incurred in the particular case and yet wishes to distinguish
it from the general state policies regarding the Bedouins. In this
case, demolition orders had been issued to Bedouins who had
moved into a planned township but could not obtain construc-
tion permits because their designated plots were as yet unregu-
lated. Consequently, these Bedouins were fined and sentenced to
one year in prison for failing to comply with the demolition or-
der that the court issued. On appeal, the district court stated that
it could not approve of the invasion of state lands and the uncon-
trolled practice of building without permits in unregulated
zones, "especially in the Negev area with its vast open spaces,
which are difficult to inspect, and in which the phenomenon of
illegal construction on invaded state lands by Bedouins is obvi-
ous." Yet the court went on to observe that while "the Bedouins
must not be allowed to take over lands of the state," one must
distinguish one case from another. In this case, appellants were
Bedouins who took part in the process of moving from nomadic
life to permanent housing: "Appellants agreed to clear the area
in which they resided and were responsive to requests or de-
mands that were grounded in security and national interests of
the state. They did not move to another area that they freely
chose but to a designated area that was meant to serve as their
place of residence" (p. 402). Under such circumstances, the
court decided to uphold the fine, to condition the prison sen-
tence, and "to recommend the prosecution authorities to post-
pone the application of the demolition order."
The inversions in law have completed a full circle: the image
of the Bedouins as nomads who threaten the state-owned lands is
upheld and affirmed and yet individual Bedouins are singled out
for a more lenient treatment. This ruling allows the court to ap-
pear as a benevolent keeper of both justice and the rule of law.
Origins, history, and the roots of the conflict are set aside by the
court and replaced with the primordial factual existence of the
Negev as a state-owned open space. Entering an established legal
grid, the Bedouins can either become invaders and subversive
lawbreakers or, as in this case, nomads who wish to be civilized by
responding to "state requests." In the latter case, some legal rem-
edy is provided and yet one that individualizes the case in a man-
ner that turns the collective illegal practices of the Bedouins into
an objective fact.
So pervasive is the presumably objective framework that the
court applies to the Bedouins that even cases in which Bedouin
the legal system's systemic pressure toward diffusing the collective issue. This does not
mean, however, that novel forms of argumentation will not be developed in the future.
Shamir 249
culture seems to be protected rest on a foundation that robs

them of their own history and culture. In the Avitan [1988] case,
the court seemed to acknowledge the historic particularity of the
Bedouin collectivity, yet ended up revealing other reasons for af-
firming the permanent settlements plan. This case involved ape-
tition to Israel's High Court of Justice in which the Association
for Civil Rights in Israel represented a Jewish police officer who
asked the court to overturn an administrative decision that de-
nied him the right to lease land in a Bedouin township and
hence to benefit from the reduced leasing fees that Bedouin resi-
dents enjoyed. The court dismissed the petitioner's claim that
the special privileges enjoyed by the Bedouins amounted to un-
fair discrimination against Jews. The decision affirms the particu-
lar tribal culture and history of the Bedouins and yet unfolds a
complementary narrative that merits attention:
At stake are Bedouins that for many years lived as nomads and
their attempts to permanently settle in one place failed and fur-
ther involved law-breaking activities, until a state interest to
help them had been established, in order to achieve important
public goals. (P. 304)
The possibility of developing the Bedouins' own places of res-
idence never occurs to the court. The dozens of permanent set-
tlements in which the Bedouins are already residing permanently
are dismissed as failed, inappropriate, and illegal "concentra-
tions," in contrast to the carefully planned state-sponsored town-
ships. The court explains that a modern society must solve the
"problem of the nomads" and must facilitate the change in the
Bedouins' values and traditions. Further, in a magical inversion,
state law precedes the history of the Bedouins, and it is this
framework that provides the court with a conceptual scheme that
constructs the state's practices as intended for the Bedouins' own
well-being:
Therefore, a policy has been crystallized already in the 1960's
according to which there is a need to settle the Bedouins in
planned permanent settlements, in order to prevent illegal
construction and the capturing of state lands, and in order to
enable the supply of proper public services, such as education,
health, sanitary and other municipal services, something that
may only be done in planned permanent settlements. (P. 301)
Further, the court provides another important, perhaps deci-
sive, rationale for the relocation of Bedouins: "[T] he Bedouins
have claimed rights of land ownership concerning hundreds of
thousands of dunams in the Negev. The establishment of perma-
nent settlements would facilitate the ability to reach agreements
with the Bedouins in regard to the rights over the disputed
lands" (p. 301); "the state has thus a clear interest to encourage
Bedouin settlement ... and it is for this reason that the authori-
ties offer Bedouins who agree to permanently move into settle-
ments, state subsidized plots of land for considerably reduced

prices" (p. 303). Compelling state interests, rather than concern
for the well-being of Bedouin culture, thus underlie the court's
decision. 22
All the contradictory and yet persistent narratives converged
in this case: socializing nomadic Bedouins as an enlightened
measure, protecting the empty Negev from invasion, criminaliz-
ing Bedouin practices as lawbreaking activities, and setting the
stage for the final showdown on the Bedouins' claims of owner-
ship. The convergence has been further consolidated in the El-
Sanaa [1991] petition to the High Court ofjustice.
The El-Sanaa case was an attempt to develop a general claim
on behalf of the Bedouin population as a whole. The petition
detailed the history of the Bedouins under Israeli rule since the
establishment of the state and argued that the Bedouins in the
Enclosure Zone were at least implicitly promised by the authori-
ties that they would be able to construct their houses in the area
in exchange for the lands from which they were originally up-
rooted. On the basis of these claims, the petition asked the court
to order the authorities to suspend attempts to target Bedouin
constructions for demolition under the provisions of the 1965
Law of Planning and Construction. In short, the idea was to con-
vince the court that the application of planning regulations to
the Bedouin case served purposes foreign to the law's intent: the
forced concentration of Bedouins in designated townships or
means for forcing the Bedouins to give up their lands.
The El-Sanaa case was unsuccessful. Spread across four and a
half pages, the short decision of the court dismissed the petition-
ers' claims that historic injustice had been inflicted on them, that
they were promised by the government that they would be able
to freely settle in the Enclosure Zone, and that the Law of Plan-
ning and Construction had been abused by the authorities. 23 Jus-
tice Bach, who spoke for the court, outlined a historic and cul-
tural narrative that was fundamentally at odds with the Bedouin
version: The Bedouins of the Negev were nomads who resided in
temporary units of residence without any appropriate infrastruc-
22 According to one source, there are currently 3,200 pending claims of ownership
by Bedouins, involving I ,650,000 dunams. From 1976 to 1988, the state has negotiated
and settled claims for only 25,000 dunams. Most Bedouins refused to negotiate over the
proposed terms. Letter of Gideon Vitkon, Commissioner of Israel Land Authority, to M.P.
Haim Oron, 30 May 1989.
23 The Israeli coun ignored the attempt of petitioners to offer a legal construction
that drew on the approach of the U.S Supreme Coun. Petitioners argued that their rights
over the lands in the Enclosure Zone [to which they were transferred by force] had to be
secured on the basis of a governmental promise. By analogy, the U.S Supreme Coun held
that "the canon of construction applied over a century and a half by this Coun is that the
wording of treaties and statutes ratifying agreements with the Indians is not to be con-
strued to their prejudice.... The construction, instead of being strict, is liberal; doubtful
expressions, instead of being resolved in favor of the United States, are to be resolved in
favor of a weak and defenseless people, who are wards of the nation, and dependent
wholly upon its protection and good faith." Antoine vs. Washington 1975:199-200.
Shamir 251
ture and, as such, had a severe "dwelling problem" that Israel

tried to resolve by offering a "permanent solution to . . . the
Bedouin section." The current planning programs of the authori-
ties-settling the Bedouins in modem planned towns-now pro-
vided adequate housing alternatives for the Bedouins:
The [authorities] employed and employ numerous means in
order to ease the plight of the Bedouins and to facilitate their
transition from nomadic life to convenient permanent settle-
ments. These means include substantial incentives to every
Bedouin over the age of 21 who agrees to move to a permanent
settlement and a grant to any Bedouin who destroys the illegal
construction in which he resides. (P. 711)
As this judicial text illustrates, there is more than one way of
discerning facts out of reality. The Bedouins' claims of injustice
are answered with a completely different framework in mind.
The version that the court articulates sees virtue where the for-
mer speaks of evil, salvation and good intentions where the for-
mer emphasizes oppression, and progress, order, and moderni-
zation where the former complains of silencing and denial. The
authorities, in the court's account, both sympathize with the
Bedouins and seek ways to help them in their times of trouble.
The Bedouins are constructed as rootless nomads in search for
permanent solutions rather than as a people who wish to cling to
lands which they consider as their own and to habits they are
reluctant to give up. Their plight, in this account, is not a result
of state oppression but of primitive living conditions or, in other
words, a problem of disorder. The decision ends with a concilia-
tory tone:
Under the circumstances, and with an overall perspective of
the historical developments that the Bedouins in this area ex-
perience, it is difficult not to sympathize with these people and
to feel a desire to help them in their distress, and it seems that
this is also the sentiment of the authorities .... But this senti-
ment cannot drive us to allow the existence of constructions
that were illegally constructed or to order the authorities not to
implement the law. (P. 712)
The (hi)story of the Bedouins, in short, does not give ground to
any legal, moral, or political cause.24 Yet the rejection should not
be interpreted as an expression of flagrant injustice, and the ra-
tionale of the court must not be seen as a case of judicial ob-
liviouness. It is hard to believe that professional judges con-
24 Two points are in order here. First, an important "working assumption" had been
established in 1979 when the government, following imperatives resulting from the peace
treaty with Egypt, negotiated the resettlement of the Tel-Malchata Bedouins. Negotiations
took place as if the Bedouins had rights of possession over their lands (Marx 1988). Sec·
ond, and in contrast to the above principle, the government so far declined to consider
proposals to allow the Bedouins to establish agricultural settlements or "shepherds vil-
lages," more in line with their traditional ways of living than the urban settlements to
which they are currently being pushed (letter of G. Cohen on behalf of the Association
for the Protection of Bedouin Rights to Israel Land Authority, 3.7.91).
sciously avoid the grievances of the Bedouin population only

when one already holds a perspective which is sensitive to the
possibility of conflicting narratives. Yet as the El-sanaa [1991] de-
cision demonstrates, we are not dealing here with mere denials
of injustice but with bold assertions of the rational and graceful
problemsolving orientation of both the administrative and judi-
cial apparatuses of the state. Therefore, it is not the case that
judges cannot decide Bedouin cases differently or that their as-
sertions are a mere sham; rather, having a particular conceptual
model in mind, judges are in fact celebrating present policies as
bearing the traits of improvement and progress, hence prevent-
ing the development of a ·~urisprudence of regret" (Webber
1995). Working with the culturally and historically grounded
model of modern conceptualist law, the individual plight of any
particular Bedouin may still be acknowledged, but the validity of
a collective counternarrative is flatly denied.
Postscript
You must never flee in a straight line. Napoleon III, follow-

ing the example of the Savoys in Turin, had Paris disembow-
eled, then turned it into the network of boulevards we all ad-
mire today. A masterpiece of intelligent city planning. Except
that those broad, straight streets are also ideal for controlling
angry crowds. Where possible, even the side streets were made
broad and straight, like the Champs-Elysees. Where it wasn't
possible, in the little streets of the Latin Quarter, for example,
that's where May '68 was seen to its best advantage. When you
flee, head for alleys. No police force can guard them all, and
even the police is afraid to enter them in small numbers.
This brief on city planning-which Belbo lectures to Casaubon
in Umberto Eco's Foucault's Pendulum (1989:109)-is not only
about possibilities of resistance. It also speaks of the Gordian
knot that inseparably binds power and culture. The ordering of
space, a derivative of intellectual conceptualism, is an act of vio-
lence executed through aesthetic means.
It is the subtle critique of this violence, if not arrogance, that
underlies Peter Greenaway's film The Draughtsman's Contract
(1982): An artist is hired to draw 12 sketches of an estate. He
demands perfection and precision: No visible change must be al-
lowed from one day to the other. All must stand still, so he can
truly produce a true representation. An easel is positioned, a per-
spective is set, and a grid seems to capture the estate in all of its
fixed properties. But little changes creep in, challenging the de-
sire to freeze time and space: A window is left open, a ladder is
put against a wall, and the boundaries are repeatedly trans-
gressed.
Consciousness and Ideology I I9
Shamir 253
For the law, as for the draughtsman, the unhindered flow of

time and the undetected movement in space subvert and
threaten the order of things. The unplanned is the uncontrolled
and the unbounded is the untamed. The search for order, for a
Plan, for a Design, is more than means to an end. It is that which
constitutes the identity of the modem vis-a-vis the chaotic, the
evasive, the unsocial; it is that which constitutes one culture's
moral superiority over another; and it is that which allows the
closure-and hence the distinction-of the modem legal sys-
tem.
In this article I have tried to demonstrate the legal conse-
quences that flow from the conceptualization of Bedouins as
rootless nomads and from the imposition of certain legal catego-
ries as means of solving disputes across the indigenous/
nonindigenous divide. I tried to show that the law which applies
to the Bedouins shares the arrogance of the draughtsman and
the controlling cultural agenda of Napoleon III. It is this aspect
of the law, above and beyond any historically specific political
agenda, that renders it highly effective in denying counterclaims,
erasing alternative narratives, and objectifying the history and ex-
perience of one culture as the only sensible one. The strict appli-
cation of the rule of law permits judges to deny rights, history,
culture, and context to a constructed other. This application ex-
pects conquest: controlling space and ordering time; placing
people within definite spatial boundaries and holding histories
in check at temporal signposts. The protagonists, therefore, must
first be dispossessed of their own sense of time and place. They
must be told that one cannot establish ownership ofland by relat-
ing to one's ancestors. One must provide documents and estab-
lish dates. The Bedouins must be liberated from their history
before they can be entrapped in legal time capsules and within
spatial enclaves. At the same time, spatial and temporal practices
of Bedouins who resist must be framed as violations of the law
before punishment may be incurred.
But we are not dealing here with a mere silencing of a hostile
"other." Rather, the law has a cultural role to play. The constitu-
tion of nomadism as a conceptual toolbox that freezes Bedouins
in time and suspends them in space gives rise to a series of binary
oppositions that underlie the distinctions between "us" (Western
pilgrims) and "them" (Oriental nomads): society versus nature,
order versus chaos, progress versus backwardness, bounded time
versus unbounded time, individual rights versus collective tr~ec
tories, and a specially adapted version of formal versus substan-
tive law. Nomads, so the modernist story goes, head nowhere.
With no clear destination in mind, they are doomed to an eter-
nal roundabout in both space and time. A purposeless trip en-
sues. Unable to explain when to go where and where to go when,
the nomads are unlike us, the pilgrims, who calculate and syn-
chronize the movement, who never leave home without a map

and a watch and a pretty clear idea of why we are heading at our
planned destination. "They" trip, "we" make a journey, and the
law works within a framework of a journey that is premised on
the conceptual ordering of time, space, and identity.
There is an irony involved. Bauman (1989), in his Modernity
and the Holocaust, discusses the "conceptual jew" in European his-
tory. The conceptual Jew, separated from the living Jewish men
and women, represented the defiance of order and the specter
of chaos and devastation. As a concept, the wandering Jew em-
bodied "the horrifying consequences of boundary-transgression,
of not remaining fully in the fold" (p. 39). It is perhaps the play-
fulness of history that the new jew (i.e., the Zionist), escapes this
conceptual identity by an act of transference in which the
Bedouin inherits, in a different context, similar conceptual
properties.
In sum, the acceptance of nomadism as a chaotic state of na-
ture immediately produces its affirmative juxtaposition to a mod-
em model of order and progress. It is on the basis of this funda-
mental opposition that the legal genre obeys its own grammatical
rules. It must establish chaos if it wishes to order, it must establish
the priority of law to life if it wishes to subject the latter to the
former, it must reify the rule if it wishes to objectify its rule. It is
only then that the law may satisfy not only its surveillance and
controlling force over the subjected but its constitutive authority
over the identity of subjectors and subjected alike. Only then
does the story have meaning, and it is this fusion of force and
reason in the law, as I have tried to show, that licenses judicial
narratives to neutralize the process by which the Bedouins disap-
pear and the Negev-qua desert-is successfully redeemed.
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Israeli Court Decisions25

"Abu-Solb [1986]": Civil Appeal 518/86, Abu-Solb vs. Israel Land Authority,
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25 Israeli cases are referred to in text by the titles and years shown in quotation
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Sbamir 257
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County of Oneida v. Oneida Indian Nation, 105 S. Ct. 1245 (1985).
Q Taylor & Francis
Part III
Discursive Practices
of Ideology and Consciousness
Q Taylor & Francis
[5]
The Dialogics of Legal Meaning: Spectacular Trials, the
Unwritten Law, and Narratives of Criminal
Responsibility
Martha Merrill Umphrey
Drawing upon Mikhail Bakhtin's theory of the dialogic, this essay explores
the production oflegal meanings about criminal responsibility in the 19th and
early 20th centuries. In particular, it examines the honor-based defense of the
"unwritten law" as it was articulated in relation to the formal law of provocation
in the 19th century, and in the 1906 trial of Harry K. Thaw for the murder of
Stanford White. Meanings about criminal responsibility emerge, I argue, from
a process of discursive conflict and negotiation between the domains of legal
consciousness and formal law. At trial, competing narratiYes of indictment and
exoneration literally enact that dynamic process, so that trials may be said to be
the materialization of the dialogic production of "law" in its broadest sense.
I n llli clo&ng "'l!U'"ent to the jury in Hany Kendall Thaw'•

first trial for the 1906 murder of renowned New York architect
Stanford White, Thaw's attomey Delphin Delmas argued that his
client should be acquitted on the basis of what he called "demen-
tia americana," "that species of insanity which makes every home
sacred ... which makes a man believe that the honor of his wife
is sacred . . . which makes him believe that whoever invades the
sanctity of that home ... whoever stains the virtue of that wife has
forfeited the protection of human laws and must look to the eter-
nal justice and mercy of God." 1 At first glance Delmas's oxymo-
I owe great thanks to Karen Merrill, Lawrence Douglas, Jay Grossman, Nasser Hus-
sain, Austin Sarat, Susan Silbey, Alison Young, and several anonymous reviewers for their
insightful and helpful comments. Address correspondence to Martha Merrill Umphrey,
Dept. of Law,Jurisprudence & Social Thought, Box 2261, Amherst College, Amherst, MA
01002 (email <mmumphrey@amherst.edu>).
I New York Times, 10 April 1907; see also Langford (1962). A note on sources is in
order here. Quite surprisingly, after an extensive search I have been unable to locate the
official transcripts of Harry Thaw's two trials for Stanford White's murder in any of the
likely legal or historical archives. As a result I have relied instead on the extensive newspa-
per coverage of the trials and on two later trial summaries, F. A. Mackenzie (1928) and
Gerald Langford ( 1962). This is risky historical business, particularly given the fact that
the fever of yellow journalism was stoked by the fires of the Thaw scandal and that New
York newspapers staked out competing (and colorful) positions on the ethics of Thaw's
act in order to boost their circulation rates. Among these newspapers, though, the New
York TirMS stands out as one that attempted to remain relatively straightforward in its
coverage of the trials, consistently coupling its reporters' summaries of the day's events
394 The Dialogics of Legal Meaning
ronic appeal, one that couples competing medical and moral

conceptions of responsibility in an attempt to persuade the jury
to acquit Thaw of murder, appears to exemplify what historian
Lawrence Friedman (1993:398) has called, in describing Thaw's
trials, "a carnival of scandal mixed with psychiatric mumbo
jumbo." As the country's first "trial of the century," Thaw's pro-
ceedings were most certainly the "super-sensation" Friedman sug-
gests. They manifested in full all the show-trial trappings with
which we are now so familiar: the crowds and the cameras; the
scandalous revelations of unseemly private behavior, inevitably
made into fodder for moralists; the legal maneuvering and pos-
turing and the ensuing public skepticism of law's ability to do
justice. And yet to assimilate Delmas's oxymoronic claims to the
atmosphere of carnival surrounding such trials, and thus to dis-
miss those claims as just so much mumbo jumbo, is to detach
such trials from both "law" in its graver aspects and the serious
cultural anxieties that infect and inform trials. It is, in other
words, to deny any significance, legal or cultural, to the spectacu-
lar trial except insofar as it "provides the public with a vicarious
thrill" (Friedman 1993:398).
What would it mean to take such a show trial seriously as a
site of law? How might we begin to theorize such trials as spaces
in which, far from being irrelevant or evicted by the irrational
dynamics of spectacle, law is enacted in critical, if peculiar, ways?
In this essay I begin to answer that question through the lens of
Harry Thaw's trials by exploring the conditions of possibility that
produced Delphin Delmas's honor-based argument to the jury in
the first of Thaw's two trials for Stanford White's murder. The
proceedings ended with a hung jury in spite of what might be
construed as Delmas's appeal to nullify the law via a defense
known as the "unwritten law." The important question for my
purposes, however, is not why Delmas failed to gain Thaw's ac-
quittal, but rather how he was able to raise such a defense plausi-
bly in the first instance; that is, how we might understand his
argument not as "mumbo jumbo" but as marking a deep instabil-
ity in the law of criminal responsibility at the tum of the century.
In its attempt to map the terrain of that instability, this essay of-
fers a meditation on the role of narrative in law and, in particu-
lar, on the dynamics of narrative within the legal domain of the
trial.
The trial, I argue, is a distinctive domain for the production
of legal meaning. It is a liminal legal space, one situated be-
tween-and one that mediates the relation between-formal
with a transcription of testimony, even if that transcription tended to duplicate much of
the substance of the reporters' own writing. Thus, in this article I rely largely on the Times
transcriptions, which I have cross-referenced with other newspapers and with the two sub-
sequent trial summaries. Although specific phrasings may occasionally vary, I have not
included any material whose meaning is inconsistent among my sources.
Umphrey 395
legal rules and the unofficial world of norms, customs, common

sense, and social codes. In a slightly different context David En-
gel has proposed the spatial heuristic of the "domain" as a useful
way to conceptualize the mutually defining relationship between
law and everyday life (Engel 1993:126-28). Here I draw on his
heuristic as a means of framing my analysis of the trial as a medi-
ating legal space, a third term lying between the classic divide
that marks sociolegal work: the domain of the script (statutes,
treatises, case law) and the domain of legal consciousness (the
meanings attached to law in the everyday world of social rela-
tions). 2 When Delphin Delmas raised the unwritten law defense
before Thaw's jury, he appealed to its members' sense of justice
as particular kinds of citizens, citizens who might value an indi-
vidual's honor above and against the authority of the state. He
drew on powerful cultural codes, meanings developed over time
and in relation to formal legal rules prohibiting intentional mur-
der, to argue that the law that ought to govern Thaw's act,
though unwritten, had a status higher than positive law insofar as
it accorded with the jury's own sense of justice. In reply, prosecu-
tor William Travers Jerome asserted the primacy and justice of
positive law. The trial process not only marks the space in which
those competing claims were narrated; its procedural rules also
helped to constitute them by directing the ways in which stories
could be told.
If it can be said that both formal legal rules and norms gov-
erning everyday life are "law," however distinctive in their mani-
festations (see, e.g., Weisberg 1992), then trials might be said to
manifest yet a third kind of law-an unstable, distinctive law that
draws its substance from the clash between script and conscious-
ness. And yet I wish to make a different argument: not that trials
manifest a different kind of law but that they lay bare the
processes by which law may be said to be constituted in any do-
main; they are the materialization of a general process of legal
meaning making. In this essay I justify that broad claim by draw-
ing on the work of Mikhail Bakhtin (1895-1975), a philosopher
of language and culture whose writings have considerably influ-
enced literary and cultural studies but not, to date, sociolegal
studies. 3 I argue that Bakhtin's theories, particularly his concept
2 Legal consciousness, as defined by Ewick and Silbey (1998:45), is a "cultural prac-
tice" or "participation in the construction of legality," a broad domain of legal meanings
that extends beyond the boundaries of legal institutions. Legality, they argue, refers not
only to law within legal institutions but also to "the meanings, sources of authority, and
cultural practices that are commonly recognized as legal, regardless of who employs them
or for what ends. In this rendering, people may invoke and enact legality in ways neither
approved nor acknowledged by the law" (p. 22). On legal consciousness, see also Sarat &
Felstiner 1995; Engel & Munger 1996.
3 Bakhtin wrote his most significant texts between the two world wars, but has re-
ceived extensive critical attention only in recent decades, in part because of the vagaries
and hazards faced by intellectuals writing and publishing under Stalin's regime. Bakhtin
himself experienced exile in Kazakhstan in the 1930s, lost several manuscripts in the
of the "dialogic," can usefully gloss the claim that law is not only
constitutive of social relations (Gordon 1984) but is also consti-
tuted by them (Silbey 1992; Engel 1993).
On the most general level, Bakhtin argues that all language is
inescapably a social phenomenon, one that can be analyzed ef-
fectively not as a formal system but only on the level of particular
utterances (Bakhtin 1981). This argument mirrors an approach
to law that began in the early 20th century with Legal Realism:
the sense that law cannot be understood except as it is enacted in
the social world. But Bakhtin's work helps to bridge the divide
between "law" and "society" in ways recognizable to sociolegal
scholars. Linguistic meaning, he argues, emerges from the rela-
tion between the utterance and its context, or in the clash be-
tween various discourses, because every utterance is directed to-
ward an anticipated answer. In his terms language is dialogic;
that is to say, internally constituted by its orientation to an ad-
dressee or in contest with other languages, discourses, and texts. 4
Even language that aspires to the status of a command (that is, to
be monologic) can never be fully insulated from its relations with
other discourses, with its own history, and with the presumed au-
dience it is to govern. 5 In this sense, the domain of the script and
the domain of consciousness are mutually constitutive in that
they have and produce meaning via their inter-orientation. As I
argue below, the unwritten law cannot be conceived without ref-
erence to formal laws governing murder, even as formal law (as it
is articulated in cases and treatises) grapples with the unwritten
law by reconceptualizing the values embedded in the defense of
provocation. Harry Thaw's trial becomes the materialization of
that space in between the unwritten law and the law of homicide,
the place where the meeting of domains occurs and is enacted
through narrative.
political tumult of the era, and appears to have authored a number of texts under the
names of his intellectual associates (though this issue is a contested one among Bakhtin
scholars). In what follows I draw primarily on Bakhtin's late-1930s essay "Discourse in the
Novel," published in the United States in The Dialogic lmaginatitm: Four Essays (1981).
Other major translated texts include Rabelais and His World ( 1984a), Probkms ofDostoevsky's
Poetics (1984b), Speech Genres and Other Late Essays (1986a), Marxism and the Philosophy of
Language (1986b; published under the name ofV. N. Volosinov), and The Formal Method
in Literary Scholarship: A Critical Introduction to Sociological Poetics (1978, with P. N.
Medvedev).
4 "Forming itself in the atmosphere of the already..,poken, the work is at the same
time determined by that which has not yet been said but which is needed and in fact
anticipated by the answering word. All rhetorical forms, monologic in their compositional
structure, are oriented toward the listener and his answer" (Bakhtin 1981:280).
5 This point is similar to one made by Wrong (1979:10): "Power relations are asym-
metrical in that the power holder exercises greater control over the behaviour of the
power subject than the reverse, but reciprocity of influence-the defining criterion of the
social relation itself-is never entirely destroyed except in those forms of physical vio-
lence which, although directed against a human being, treat him as no more than a physi-
cal object."
Umphrey 397
Why narrative? In part because of the nature of trials them-

selves. Trials tum past events into texts by rendering them in lan-
guage. As Robert A Ferguson has argued, trials always function
"through a framework of storytelling" because they are shot
through with narratives; that is, with information organized and
mobilized into a relatively coherent and temporally logical form
by witnesses, attorneys, and judges, and directed at and con-
sumed by various audiences, including other attorneys, judges,
the jury, the press, and the public (Ferguson 1996:85; see also
Gewirtz 1996:7). That multiplicity, compounded by the adver-
sarial structure of the proceedings, makes the trial an unusually
vivid and complex venue in which to explore the dynamics of the
narrative transaction, which I will examine more specifically be-
low. In that sense, this essay is part of a by-now-familiar tum to
narrative in sociolegal scholarship. Scholars interested in ques-
tions of voice, oflegal rhetoric, and of the interplay between law,
culture, and power have used narrative analysis to explore the
ways in which law produces, structures, and suppresses particular
narratives, and conversely the ways in which narrative gives mean-
ing to law in various settings. 6 But I wish to make the further
argument that narrative may be found not just in trial settings, in
the self-conscious tales told by legal actors to legal deci-
sionmakers, but also that narratives are dialogically interpolated
within formal law itself, providing the ground on which the os-
tensibly nonnarrative domain of the script pronounces legal
rules.
In what follows I elaborate on and illustrate this analysis of
the dialogic nature of law. Mter briefly sketching the events lead-
ing up to Harry Thaw's first trial, I map the dialogic relation be-
tween the domains of script and consciousness on two levels.
First, I trace the history of the unwritten law as it was articulated
in relation to formal legal rules governing intentional murder
and provocation; that is, I explore the ways in which formal law is
itself dialogized, constituted in its conflict with social customs
that sanctioned honor-based killing. Second, I explore the ter-
rain on which Harry Thaw's trial may be seen as an enactment of
the struggle that constituted formal law itself. Over the course of
Thaw's first trial, Delphin Delmas argued that "responsibility"
ought to be adjudicated not just as a question of cognition and
intent (following the M'Naghten rule as it was articulated in New
York law, did Thaw understand the nature and illegality of the
act of shooting Stanford White?) but also as a question of honor
(was it wrong to rid the world of a libertine who had ruined
6 Narrative approaches to law are by now abundant, well developed, and too exten-
sive for a detailed enumeration here. My own analysis has been informed by, among
others, Brooks & Gewirtz (1996) and Ewick & Silbey (1995). On storytelling in courtroom
settings in particular, see Bennet & Feldman 1981; Jackson 1988; Ferguson 1994;
Korobkin 1995; Robertson 1996; and Ganz 1997.
Thaw's wife Evelyn Nesbit before her marriage?). However

camivalesque the juxtaposition of those two competing models
of responsibility-one relying on a denial of rationality and
agency, the other embracing and valorizing agency-may appear
to our eyes, it was a juxtaposition that had been offered and de-
fended in American courtrooms over the course of the second
half of the 19th century. Out of this clash between competing
conceptions of culpability emerged a "law" of criminal responsi-
bility that was, as articulated and adjudicated in trial settings,
both rich with meaning and highly unstable.
Violence/Vengeance
The 25th of june 1906 was a warm summer evening. A new

musical, Mamz.elle Champagne, had just opened in the rooftop the-
ater at New York's Madison Square Garden. Near the stage and
amid colored light strings hanging from arches of vines sat Stan-
ford White, the architect and designer of this new and marvelous
monument to the city's thriving culture ofleisure. Some distance
away from him and farther from the stage sat White's former par-
amour Evelyn Nesbit Thaw, once accustomed to stage life herself,
and her husband Harry Kendall Thaw. As Harry Short, a come-
dian, struck up the tune "I Could Love a Million Girls," one that
seemed an eerily apt description of both Thaw and White, the
Thaws and their guests rose to leave, apparently bored with the
show. Harry Thaw parted from the group, walked toward White's
table, and raised a revolver. His three shots, two to the shoulder,
one to the head, killed White immediately, burning his face be-
yond recognition. Captured at the scene by the police, Thaw was
escorted to the nearest station in the Tenderloin section of the
city. He identified himself as John Smith, a student, of 18 Lafay-
ette Square, Philadelphia; but his card named him otherwise.
Thaw was booked on the charge of murder and sent to his cell in
the New York's Tombs prison.
****
Born in Tarentum, Pennsylvania, on Christmas day, 1884,
Florence Evelyn Nesbit, the woman in the case, moved with her
mother and brother to New York late in the year 1900. The years
preceding that move had been difficult: Nesbit's father, an attor-
ney, died when she was very young, leaving her mother to sup-
port the children by taking in roomers and working as a dress-
maker. But Nesbit, forced to scrub floors, was a beautiful child;
and when her mother's attempts at a dressmaking career in New
York proved fruitless, she used letters of introduction from Phila-
delphia artists to work her way into a modeling career. At age 16
she began to appear in paintings by Carroll Beckwith, drawings
by Charles Dana Gibson, photographs by Gertrude Kasebier and
Umphrey 399
Rudolph Eickemeyer, sculptures by Augustus Saint-Gaudens. She

quickly became the favorite of advertisers, combining as she did
innocence and sensuality. But her heart was set on the stage.
The New York Evelyn wished to conquer was a showcase of
Stanford White's artistry. Throughout the city, his hand was rec-
ognizable not only in a number of fine residences and private
clubs (including the Players' Club, the Century Club, and the
Metropolitan Club) but also in monumental works: Washington
Square Arch, Judson Memorial Church, Madison Square Garden,
the Bronx campus of New York University. The streets she
wandered were streets he had touched; the company she desired
was the company he kept.
She soon found a place in the famous Floradora Sextette, a
chorus line whose members were constantly besieged by "Cham-
pagne Charlies" (a better class of "Stagedoor Johnnies"). It was a
small step from model to stage; but with it she stepped from pov-
erty into the ambit of millionaires and sporting men who, in an
era of loosening norms and burgeoning public amusements,
flocked beneath their social station to Broadway to entertain
such beautiful women with a lavishness and zest that raised the
ire of many a custodian of culture and values. The geography of
such a life was beguiling: extravagant dinners in opulent lobster
palaces-places to watch and be watched; infamous parties in the
private dining rooms maintained by those restaurants; secret ren-
dezvous in secluded chambers deep in the hearts of business dis-
tricts. The era's love of spectacle was such that it could transport
a beauty across class lines from cheap boardinghouse to high so-
ciety in an instant. Fine clothes, elegant jewels, rich food, ample
libation, bright company-Nesbit found all of these immediately.
Soon after her debut as a Floradora girl, Nesbit and a friend
were invited to Stanford White's lavish 24th Street apartment for
lunch. To enter it she passed behind the counter of a toy store-
FAD Schwartz-and watched amazed as doors opened automati-
cally to usher her into a lush set of rooms. Red velvet curtains
shut out the sun; indirect electric lights cast a soft glow. She had
her first glass of champagne, and after lunch she and the others
ascended to the next floor and entered a studio. Set in the ceil-
ing at one end of the room was a red velvet swing; she settled in,
was pushed from behind, higher and higher until her feet
pierced a paper umbrella, suspended above (Nesbit 1934:27).
White, then a married man in his early 50s, took her under his
wing, acting as both a paternal figure and a financial support for
Nesbit and her mother. But ever a lover of beauty, he also "took"
her, either by seduction or force, one night in his lavish pent-
house suite in the tower of the old Madison Square, afterward
making the 16-year-old his not-unwilling mistress for some period
of time.
Yet another millionaire courted Evelyn Nesbit in her early

days on the stage. As the Floradora show moved from the Casino
to the New York Theatre, flowers began to pour in from a Mr.
Munroe; soon one bouquet came wrapped in a $50, accompa-
nied with a card: "Mr. Munroe is waiting for an answer." Shere-
turned the money. Later, she met a man at a luncheon who she
described as "unattractive, even repellent. . . . His protruding
eyes held a wild look. He glared. There was some indefinable
quality about his whole personality that frightened and repulsed
me" (Nesbit 1934:6). This was Mr. Munroe, who announced him-
self as "Harry K. Thaw of Pittsburgh." Thaw, the prodigal playboy
son of a Pittsburgh railroad magnate, became obsessed with Nes-
bit. In 1903, Nesbit fell ill and was advised to travel, and Thaw
succeeded in persuading Nesbit and her mother to travel with
him to Europe. There he proposed to the 17-year-old, who re-
fused him, perhaps on the grounds that she had been involved
with White, perhaps because she wished to remain on the stage,
perhaps because of his evident eccentricities. Mter some time in
Paris, though, he renewed his proposal and proceeded to escort
her around Europe without her mother, holding her out as his
wife. Near the end of their trip Thaw took Nesbit to a castle, the
Schloss Katzenstein, in what was then the Austrian Tyrol (now
northern Italy); there his tenderness turned violent as he
whipped and abused her brutally during their two-week sojourn.
Nesbit returned without Thaw to New York, and on White's
advice swore an affidavit against Thaw. She took no further ac-
tion, though, and eventually Thaw and Nesbit reconciled. They
married in April1905. White remained on the scene only insofar
as they ran in similar New York social circles, but his presence,
along with Nesbit's story of her relationship with him, agitated
the obsessed Thaw for two years. Fifteen months later, Thaw pul-
led the gun from his overcoat pocket and fired. Thaw and his
family moved quickly to mobilize public opinion after the shoot-
ing. Three days later, and immediately after the coroner's in-
quest, Thaw telephoned the city's preeminent social purity advo-
cate, Anthony Comstock, who later told reporters that at Thaw's
urging, he had gathered a wealth of evidence against Stanford
White from nighttime espionage activity in the tower of Madison
Square Garden. But he had been frustrated by people of influ-
ence, Comstock said, in pursuing charges. Stories began to circu-
late through the burgeoning yellow press concerning White's
scandalous social life: of secret rendezvous in various apartments,
of elegant stag dinners enlivened by barely clad women.
The sensation-seeking press published a number of such sto-
ries, fueling the character-blackening campaign against White.
The Thaw family contributed heavily to this effort, hiring Benja-
Umphrey 401
min Atwell as a publicity specialist, 7 and financing a film and

three plays based on the case. One, which opened at the Am-
phion Theatre in Brooklyn on 24 September, extolled Thaw
(alias Harold Daw) as a hero, protected by the unwritten law
against any punishment in his killing of White (alias Stanford
Black). "No jury on earth will send me to the chair, no matter
what I have done or what I have been," cries Daw from his cell,
"for killing the man who defamed my wife. That is the unwritten
law made by men themselves, and upon its virtue I will stake my
life" (quoted in Langford 1962:50; from Atwell, The Unwritten
Law 1907b). Meanwhile, Harry Thaw waited in his cell on the
third floor of the Tombs prison-rather comfortably, all things
considered. The famed Delmonico's delivered his meals; his doc-
tor prescribed a bottle of champagne per day; he had all the
whiskey he wanted.
In spite of his public relations efforts, the press did not leave
Harry Thaw unscathed. On 14 July, for example, both the Trib-
une and the Times ran a story about a $20,000 suit against Thaw
brought by one Ethel Thomas in 1902. As she alleged in her affi-
davit, after lavishing attention and presents on Miss Thomas,
Thaw met her one day for an appointment at his apartment and,
along the way, stopped in a store to buy a dog whip. "I asked him
what that was for," she reported, "and he replied laughingly,
'That's for you, dear.' I thought he was joking, but no sooner
were we in his apartment and the door was locked than his entire
demeanor changed. A wild expression came into his eyes, and he
seized me and with his whip beat me until my clothes hung in
tatters" (New York Times, 14July 1906).
Other stories circulated: of Thaw's summary dismissal from
Harvard after having committed moral indiscretions that were
apparently unspeakable; of a scene with a young hotel boy, who,
accused of taking some money, was thrashed, then made to strip,
forced into a bathtub, and rubbed with salt; of Thaw's attempt to
ride a horse up the steps of the Union Club after being tumed
down for membership. Rumor also had it that he had scalded
and whipped a number of girls in a brothel. All such stories fed
the credibility of Nesbit's own story of Thaw's abuse (New York
Times, 6, 7, 10 July 1906). But still Nesbit visited Thaw daily in the
Tombs, stood bravely before a chuming press corps, prepared to
testify in her husband's defense.
In his opening argument, New York City's Assistant District
Attomey Garvan put the prosecution's version of events before
the jury in a direct manner. "The People claim that [Thaw's act]
was a cruel, deliberate, malicious, premeditated taking of human
life .... Mter proving that fact to you, we will ask you to find the
7 Atwell published two editions of his book, The Great Harry Thaw Case: Or, A W<>-
mans Sacrifice. The first, published in 1907 (Atwell 1907a), covers events leading up to the
murder and the first trial; the second (1908) also covers Thaw's second trial.
defendant guilty of the crime of murder in the first degree" (New

York Times, 5 Feb. 1907). He called nine witnesses to the stand;
after two hours, he rested his case. The prosecution's story was
straightforward: Thaw had publicly, deliberately, and without
provocation shot White three times, and was thus by definition a
murderer. New York at the time followed the 1842 English
M'Naghten rule, which held that culpability was based on whether
a criminal defendant knew the nature and quality of his actions
or knew that they were wrong. (On the M'Naghten rule, see Mo-
ran 1981.) If Thaw understood that he was shooting a gun at
Stanford White and knew that such an action was illegal, he
could be found guilty; if he did not understand cognitively either
on~ of those conditions, he would be excused from responsibility
as Insane.
That legal standard set the initial terms of the trial: Thaw's
defense opened with a plea of insanity. Quickly, though, lead at-
tomey Delmas, the silver-tongued "little Napoleon from Califor-
nia," began to construct a narrative based less clearly on insanity
than on honor, contesting the prosecution's definition of
"wrongfulness" with the defense of the unwritten law. If indeed
Thaw both knew what he was doing and knew it to be illegal,
Delmas argued, he nonetheless did not believe that his actions
were morally "wrong"; rather, he believed them to be "right," jus-
tifiable, and a judgment in which any man of worth would con-
cur. In other words, Delmas constructed a narrative that articu-
lated a different relationship between agency and malice than
that presumed by the formal law of homicide. Indeed he ex-
ploited an instability in the 19th-century law of homicide, which,
according to the era's leading authority on criminal law, Francis
Wharton, required malice; that is, "a generally wicked, depraved,
and malignant spirit, a heart regardless of social duty, and delib-
erately bent upon mischief' (Wharton 1855:33). The terms of
the unwritten law implicitly contested that interpretation of de-
liberate killing, removing the presumption that all acts of killing
are contrary to social duty. Thaw may have killed White, Delmas
argued, but he did so with the public good in mind: He elimi-
nated a dangerous libertine and removed a very real threat to the
young women of the city.s
Narrative Transactions, Cultural Codes
At its most basic, narrative is (as literary critic Barbara Herm-

stein Smith [1981:232] has so economically formulated it) some-
one telling someone else that something happened. That is to
8 Though he does not make the distinction, it is important to note that Delmas
relied on an objective, not a subjective, standard here. He did not contend that Thaw
thought he was doing good, an argument that would implicate Thaw's mental state; he
made the stronger claim that Thaw did good, as any upstanding juror would recognize.
Umphrey 403
say, narrative is a transactional phenomenon; as Ross Chambers

(1984) has argued, it mediates exchanges between teller and lis-
tener. This understanding of narrative highlights the significance
of both the production and reception of stories and suggests that
meaning emerges from a negotiation between teller and listener
over the import of a story. That negotiative process marks a fun-
damental instability in narrative: though a teller weaves a tale,
she cannot control the interpretation her audience places on it;
and though a listener in some sense becomes his own author,
creating meaning from the story he hears, he cannot be said to
produce that meaning out of whole cloth. By definition, then, no
story can be guaranteed to produce one unitary, coherent under-
standing of any event or action because no one can guarantee a
uniformity of reception. Moreover, when a story is told in court,
conditions of narrativity not only admit but require the produc-
tion of multiple, discontinuous, and discordant stories as wit-
nesses testify and are peppered with hostile questions, as attor-
neys attempt to form a mass of "facts" into coherent and
competing reconstructions of events and motivations, and as
both testimony and argument are received by the judge and jury,
the press, and the public. 9
Yet merely noting the multiple registers of trial narratives is
in itself insufficient. One must ask further, what makes any par-
ticular narrative persuasive? Quite apart from the issue of factual
"truth," how is it that narratives are constructed to draw in their
intended audiences? This is not precisely to ask why one narra-
tive "wins" while another "loses." 10 Though the outcome of any
particular trial is hardly irrelevant to an inquiry into the power of
particular narratives, it does not exhaust the potential of narra-
tive to provoke debates over the meanings that can be derived
from that trial (here, think of the continuing debates over the
meaning of the Simpson criminal trial in spite of, and indeed
because of, his legal acquittal). At the same time, though, trial
procedures define the boundaries of "proper" legal storytelling
(Ferguson 1996:85). Through the operation of various rules, law
attempts to regulate what is able to be narrated; that is, it at-
tempts to discipline both the form and substance of narrative in
9 The peculiar nature of the jury as audience makes difficult anything more than a
cursory analysis of the reception of stories within a courtroom, about which one has little,
if any, evidence, since deliberations are secret and verdicts flatten complex stories into a
"guilty/not-guilty" dichotomy (see Ferguson 1996:85). In the case of Thaw's trials, one, of
course, has access to a great deal of evidence about the wider public's reception of the
attomeys' arguments. Much of that evidence is contradictory, though to some extent one
can detect from the popular reportage itself a hint that middle<lass women tended to
sympathize with Thaw and Nesbit and to vilify White (on this point see Abramson 1990).
But that aspect of Thaw's trials goes beyond the scope of this essay; here I focus in the
main on the productive side of the narrative transaction.
10 I resist this win/lose model because it proposes an understanding of narrative
that is reductive insofar as it envisions the courtroom as a locus of dueling stories-of two,
and only two, opposed tales vying for the interpretive soul of the jury.
order to produce particular kinds of stories. Formal legal rules,

in other words, produce conditions of possibility for some kinds
of narratives while undercutting others.
Within that framework, to tell a story, claims Ross Chambers
(1984:50), is to exercise power; but the authority of storytelling is
relational, "the result of an act of authorization on the part of
those subject to power, and hence something to be earned." To
be persuasive, Delphin Delmas had to identify and articulate
those recognizable cultural codes that made Thaw's act justifi-
able to the jury and the public. But simply making the argument
would not be enough; to persuade his audiences, Delmas needed
to draw them into his tale, to entice them to defy the terms of
formal legal rules governing homicide. The terms of the prosecu-
tion had to be altered because an appeal to the unwritten law
required that the jury invert the object of judgment from at-
tacker to victim-in this case, from Thaw to White.
To gauge the power of particular narratives within the court-
room, however, we must first step back from the trial process in
order to tease out the salient cultural codes constituting the de-
fense's unwritten law narrative, because as Bakhtin argues, dis-
courses "cannot fail to be oriented toward the 'already uttered,'
the 'already known,' the 'common opinion,' and so forth" (Bakh-
tin 1981:279). As a question of representation, cultural codes are,
according to Roland Barthes (1974:82), constituted by repeti-
tion; they are made of the "already-seen, already-read, already-
done." A mixture of common opinions and received ideas, "vul-
garisms," they convert the contingent into the seemingly natural;
that is to say, in Barthes's terms, the ideological. The fact that
meaning is naturalized via repetition suggests that one way to un-
derstand the power and lure of a particular narrative is to ex-
amine it as it has been constituted and elaborated historically-a
history not necessarily relying on a dissection of particular events
so much as being a history of discourse, one tracing the received
opinions and imaginings about symbolic or emotionally compel-
ling conflicts or movements.
If one constructs such a discursive history of the unwritten
law, one finds a relation between a strongly articulated (if not
universally implemented) customary right to avenge sexual hu-
miliation and formal legal prohibitions against intentional kill-
ing-between the domain of consciousness and the domain of
the script. In what follows I sketch the history of this dialogic
relation by examining the ways formal legal rules governing
homicide are marked by their relation to the unwritten law; or,
in Bakhtinian terms, the ways in which formal legal rules were
constituted at least in part by their orientation to the "other" and
were thus internally divided. That internal division accounts for
the peculiar ways in which law was articulated in Harry Thaw's
trials and illuminates the dynamics of persuasion, a subject to
Umphrey 405
which I will return after sketching the relation between script

and consciousness in the 19th century.
A Dialogics of Script and Consciousness: The Unwritten

Law in the 19th Century
In 1906 (the year Harry Thaw killed Stanford White) the
southern jurist Thomas Kernan asked a question that was on the
minds of some of the nation's leading legal scholars: "Do not we
in America have, in reality, a jurisprudence, as it were, of lawless-
ness as well as a jurisprudence oflaw?" 11 Kernan's article, "AJu-
risprudence of Lawlessness," laid out a decalogue of nominally
illegal practices, from the duel to lynching, that over the course
of the previous century had been given such legitimation as to
constitute "a jurisprudence which has almost assumed the dignity
and symmetry of a system" (Kernan 1906:450}. 12 The "unwritten
law" that a man could kill his wife's lover was among these self-
help practices, emerging as an articulated legal defense in the
1850s (Ireland 1989:30}. 13 It played a part in a number of trials
II Speaking of jury nullification, the young professor Roscoe Pound wrote in 1907,
"it must be admitted that the law of the land has not the real hold upon the American
people which law should have .... When everyone out of his own private judgment is
wiser than the law, there is a condition in which the law is of no effect" (Pound
1907:607-8).
12 On the social history of the duel, see Dickson 1979; on vigilantism see Brown
1975.
IS Though the contours of the unwritten law are difficult. to sketch because of its
very nature as an extralegal defense designed to result in acquittal (leaving no written
legal record in the ordinary run of cases), some generalizations about the social land-
scape of unwritten law may be made. On the whole, men, and particularly husbands,
claimed it as a defense after killing rivals who, in seducing their wives, compromised their
sexual honor (Ireland 1989; Hartog 1997). Though it seems possible and even likely that
resort to the unwritten law was more common in the South and West, given the tendency
in those regions toward a greater reliance on private self-help (see Friedman 1993, partic-
ularly the chapter on "Lawful Law and Lawless Law: Forms of American Violence"; Brown
1975, 1991; Dickson 1979; Wyatt-Brown 1982), Ireland does not identify such regional
distinctions as salient, citing cases equally from the Northeast and the South and, to a
lesser extent, the Midwest. Other commentators have also sketched the geographical
spread of the unwritten law defense, as well as its continuing manifestation in the 20th
century. See, e.g., Yale Law Journal 1934. Indeed, I think that the symbolic weight of the
era's major cases is at least as important as the breadth of the unwritten law's use in
understanding the meaning it held in the late 19th century. As both Ireland and Hartog
suggest, the major unwritten law trials of the 19th century were public spectacles in which
defendants were acquitted to great (though not universal) approbation, at least among
those who made "public opinion" (Ireland 1989:37). Both Ireland and Hartog link this
embrace of the unwritten law to shifts in gender ideologies and configurations. Ireland
argues that the unwritten law materialized in a era of declining male authority and an
emergent ideology of female passionlessness. The conflict between a theory of the repub-
lican family as a space of virtue and purity and the reality of changing gender roles pro-
voked an anxiety, according to Ireland, that in tum justified the assertion of the unwrit-
ten law as a defense against domestic destabilization. Hartog elaborates on this point in
suggesting that the unwritten law was a conservative response to the profound disquiet
men felt about mid-19th<entury legal reform on behalf of women. To the extent that
these arguments are persuasive, they militate in favor of differentiating between killings
by men and by women. For a clear articulation of this distinction in the context of late
19th<entury "crimes of passion" in France, see Harris 1991; Berenson 1992.
in which high-profile defendants accused of murdering their

wives' lovers were acquitted outright, and the breadth of the me-
dia's coverage in each instance provoked widespread commen-
tary on the relationship between honor and homicide. 14 It was,
in other words, a notorious and ideologically freighted defense
that placed honor, a value emanating from the domain of
gendered social relations and customs of self-help, in direct con-
flict with formal legal principles of culpability. ·
"Any man who commits adultery," wrote Kernan
(1906:451-52), "may be put to death with impunity by the in-
jured husband, who shall have the right to determine the mode
of execution, be it never so cowardly." 15 Though this "legal" pro-
nouncement is tinged with irony, it nevertheless captures the
spirit of the unwritten law defense as it emerged mid-century. Yet
the unwritten law is perhaps best viewed not as a negation of pos-
itive law but as a moral claim running at an oblique angle to and
in dynamic tension with the formal law of homicide. As a defense
arising from the domain of consciousness, the "unwritten law"
dialogic on its very face insofar as it named itself as "unwritten"-
as not-script-in relation to the domain of the script; or, as it was
articulated in its originary cases, as a kind of supplementary or
transcendent law emerging out of a man's "natural right" to pro-
tect the chastity of his wife when formal law can or would not do
so. 16 In court, according to historian Robert Ireland, proponents
of the unwritten law justified self-help in cases of adultery, seduc-
tion, and sexual insult on two grounds, both of which signaled
the perceived inadequacies of formal laws governing domestic re-
lations. First, in those states that did not criminalize adultery or
seduction, they argued that a man's only recourse was to bring a
civil suit for criminal conversation or alienation of affection
against the marauder who had destroyed his domestic happiness.
Yet seeking money damages could never, in an honorific econ-
omy, compensate for the degradation of a polluted hearth (Ire-
land 1989:30; Hartog 1997:89). As Kernan (1906:459) put it,
"What consolation does such a remedy bring to outraged hus-
band or innocent girl victim, or her family, for a happy hearth-
stone desolated and a precious life blasted forever? 'The jingling
of the guinea' never did and never will 'help the hurt that honor
14 In this regard, the three trials cited above stand out: that of New York Congress-
man Daniel Sickles for the killing of U.S. District Attorney Philip Barton Key (1859); that
of General George W. Cole for the killing ofL. Harris Hiscock (1868); and that of Daniel
McFarland for the killing of the well-known Civil War correspondent Albert Richardson
(1872).
15 Though he does not discuss the unwritten law, in "Lawful Law and Lawless Law:
Forms of American Violence," Lawrence Friedman (1993) chronicles many of the same
practices detailed by Kernan.
16 This kind oflanguage figured prominently in the 1859 trial of Daniel Sickles for
the murder of Philip Barton Key and became a paradigmatic rhetorical device in unwrit-
ten law cases.
Umphrey 407
feels.'" Moreover, defense attorneys argued, a man who turned

to the law in response to deeply humiliating situations such as a
wife's sexual infidelity was perceived by his peers as unmanly and
effeminate (Ireland 1989:30). In such situations, men's actions
were governed by a "higher law" that allowed, even required, ven-
geance in spite of its formal legal prohibition as intentional mur-
der.
Thus characterized by its proponents, the unwritten law
emerged as a defense gendered in its very nature, its social legiti-
macy dependent on a powerful and ideologically charged cluster
of values defining proper masculine and feminine behavior (see
Ireland 1989; Hartog 1997). To the extent that those values pro-
vided the basis for legal acquittal, they demanded notice of the
formal law, and placed it under pressure to justify itself, instigat-
ing a dialogue between legal domains that in turn inscribed self-
help in the heart of positive law. We can trace the path of that
process of inscription by examining successive editions of Francis
Wharton's definitive treatise on the law of homicide. Wharton,
one of the 19th century's leading legal commentators, published
the first edition of A Treatise on the Law of Homicide in 1855 and
later amended it (the 1875 and 1907 editions being most rele-
vant to Thaw's case). 17 In all three, he defines "murder" as
"where a reasonable person of sound memory and discretion un-
lawfully kills any reasonable creature in being, in the peace of the
commonwealth, with malice prepense or aforethought, either ex-
press or implied." Each of these carefully crafted phrases has sig-
nificance, but the most relevant here is his emphasis on "malice."
To be convicted of murder, one must kill, having the capacity to
reason about one's actions, and one must act with, as Wharton
puts it in 1855, "a generally wicked, depraved, and malignant
spirit, a heart regardless of social duty, and deliberately bent
upon mischief' (p. 33). Put more succinctly, to act with malice is
to act with "evil intent" (ibid., p. 2).
According to Wharton, killing without evil intent constituted
the common law crime of manslaughter, "the unlawful killing of
another, without malice, on sudden quarrel or in a heat of pas-
sion." To mitigate murder to manslaughter, the defendant must
prove that he was provoked by his victim in a way that was both
sufficient and legally cognizable. The "classic" example of such
provocation is that of one man's hot-blooded, lethal response to
the nonlethal assault and battery of another in a fight. Yet the
defense was not limited to those confronted with physical assault,
and it is here that one begins to find the era's extralegal activities
putting pressure on the formal law of homicide. "[I]f a man be
greatly provoked by any gross indignity," wrote Wharton (p. 35),
"and immediately kills his aggressor ... the law kindly appreciat-
17 On Wharton himself, see Tighe 1983; Wharton 1891.
ing the infirmities of human nature, extenuates the offense com-

mitted, and mercifully hesitates to put on the same footing of
guilt, the cool deliberate act, and the result of hasty passion."
This statement is striking in its characterization of the rela-
tion between the law and the defendant. As both a convention of
writing and a paradigm, the defendant is figured as male, a sig-
nificant gesture that presages one of the law's primary fields of
regulation in this area: responses to sexual betrayal and dis-
honor. Ironically, even as law imagines its object of regulation to
be male, it portrays itself as the omnipotent and merciful sover-
eign, who by his grace alone recognizes the disruptive nature of
emotion in an otherwise rational man. To be a murderer is to act
with deliberation and intent, however maligned one's spirit; to
be convicted of manslaughter is to have lost stoic self-control, to
be overcome by emotion. It is, in other words, to be the impetu-
ous son, appealing to the father for pity after an adolescent out-
rage.
What will the law recognize as "gross indignity"? The classic
street battle case of provocation is relatively clear-cut and does
not detain Wharton long. More interestingly, even in the 1855
edition of his treatise Wharton spends a significant amount of
time wrestling with a more difficult question: To what extent
does an affront to a man's honor constitute provocation? Rather
weakly he says that words alone are never enough to satisfy the
legal test; that is, that verbal insult is not recognized as provoca-
tion sufficient to mitigate a charge of murder to manslaughter
(p. 169). Immediately, though, he recites in great detail a narra-
tive of provocation from an 1805 Massachusetts opinion-a text
within his text-in which a court of appeals allowed to stand a
jury acquittal of one Selfridge for shooting and killing a young
man who may or may not have threatened him with a cane.l 8
The jury appears to have acquitted Selfridge not because he was
in some physical danger but because the young man's threat con-
stituted a public insult to his reputation. Wharton adamantly
condemns the judgment but uses the case to explore the role of
honor in a provocation defense. "Whether a homicide commit-
ted by a man smarting under a sense of dishonour is murder or
manslaughter," Wharton concludes (p. 177), "depends upon the
question whether the killing was in the first transport of passion
or not." Evidently, then, in spite of the axiom that mere words
can never amount to legally adequate provocation, Wharton de-
clares reluctantly that the law will mitigate punishment when in-
jury is done to one's sense of self, as well as to one's body, if the
lethal response occurs immediately.
18 Interestingly, Wharton appends the opinion to the end of his treatise without
providing further citation, in effect enveloping it into the text of the treatise itself.
Umphrey 409
What specific kind of injury is imagined here? Curiously, in a

postacquittal apologia for his actions, Selfridge characterized his
injury as if it were bodily, in particularly gendered terms. "The
honor of a gentleman should be as sacred as the virtue of a wo-
man," he wrote, "but the female is authorized to take his life, who
would violate her honour. Why is not a man bound to maintain
his honour at the same hazard?" (quoted in Wharton, p. 174).
Selfridge uses the language of physical violation, of violence
done to a quality of self that is holy, sanctified. As he moves
across gender lines, his language slips significantly from violation
to maintenance, and from authorization to duty, suggesting that
for a man some outside force impels a response to an attempt at
dishonor. Those who have written on cultures of honor locate
that force in public opinion and, more specifically, in a commu-
nity's imposition of shame for behavior that is perceived as dis-
honorable, unmanly, or below one's social station.l9 The injury
felt after insult, then, is an injury causing humiliation, which
without response converts to disgrace in the mind of the public.
Just as a virtuous woman would no doubt rebuff a sexual affront,
an honorable man must rebuff an attack on his honor.
Selfridge's perhaps inexact analogy between rape and insult
nonetheless points to the direction the jurisprudence of provoca-
tion will take over the course of the century. By the time of his
1875 edition, Wharton has focused his discussion of honor and
provocation specifically on the problem of sexual insult and out-
rage. He (unlike Selfridge) still imagines his defendant to be
male, specifically stating that a husband, following a hot-blooded
killing of one committing adultery with his wife, is guilty of man-
slaughter only. This understanding of provocation seems plausi-
ble: the shock and injury one would feel at the unexpected sight
of one's wife in bed with another man would certainly seem to
rise above the level of "mere words." Yet as Wharton continues, it
becomes clear that the injury to be redressed is not necessarily
confined to that which causes personal sexual humiliation;
rather it expands to encompass a more diffuse sense of public
honor. "[W]here there is a legal right and a natural duty to pro-
tect," writes Wharton, "an assault on the chastity of the ward (us-
ing the term in its largest sense) will be a sufficient provocation
to make hot blood thus caused an element which will reduce the
grade to manslaughter." To clarifY this vague rule Wharton pro-
vides two examples: a father who kills after becoming incensed at
an "unnatural outrage" upon his son (Wharton elaborates no fur-
ther); and a father's or brother's indignation at a sexual outrage
attempted upon a daughter or sister. Presumably hot blood is
19 "Honor," writes William Ian Miller, "is above all the keen sensitivity to the experi-
ence of humiliation and shame ... that disposition which makes one act to shame others
who have shamed oneself, to humiliate others who have humiliated oneself" (1993:84-85;
see generally Wyatt-Brown 1982).
still a requirement; but in such situations the defendant exper-

ienced no direct insult. Rather, the injury seems to be a violation
of the defendant's sovereignty by harm done to a dependent.
Wharton justifies this extended conception of injury on prag-
matic grounds: "To impose a severer rule would be a departure
from the analogies of the law, and would bring the court in con-
flict not only with the jury, who under such circumstances would
never convict of murder, but with the common sense of the com-
munity" (Wharton 1875:412).
This statement is indeed remarkable, coming from a careful
taxonomist of formal law. Wharton does not clarify why this ex-
tension of the earlier principle is in fact justified by analogy-to
what?-but his acquiescence to jury sentiment and public "com-
mon sense" may be read as a response to a perceived rash of
unnamed instances when defendants have been convicted of
some charge less than murder, if indeed they have been con-
victed at all. The injury of sexual outrage is the moral space in
which script and consciousness must negotiate their competing
visions of responsibility and justification; that is, in this particular
area of provocation, formal law directs itself toward its antici-
pated nullification and is redefined by that dialogic orientation.
One can view Wharton's characterization of provocation as a way
to uphold the law in the face of a direct challenge; in expanding
circumstances of mitigation, positive law meets halfway juries that
would outright acquit. This stance, in its humble tone, departs
from Wharton's earlier rendering of law's "merciful hesitation"
at convicting a defendant of murder who acted in the heat of
passion; it is almost as if the law is asking for mercy from the jury
and the community who apply it. A crack has emerged in the
veneer of the formal law; this gesture of humility is Wharton's
attempt to shore up the law's legitimacy. And yet it simultane-
ously points to law's fragility, its dependence on community con-
sent, and the direction of force exerted on the law by the self-
help practices threatening to undermine it.
That threat is literally written into positive law by the time of
Wharton's third edition (edited by Frank H. Bowlby). By 1907,
particularly in southern states, courts and legislatures had ex-
panded the notion of provocation to cover a broad range of sex-
ual effrontery. Texas went furthest in this process, passing a stat-
ute that expanded the notion of provocation to cover oppro-
brious words or conduct directed at a female relative. 20 More-
over, the Texas statute not only mitigated punishment but out-
20 See Texas Penal Code Ann., sec. 1220 (1861). The rule states that "insulting
words or conduct of the person killed toward a female relative of the slayer is made, by
statute, adequate cause to reduce the offense if it takes place at the first meeting after
information concerning the insult" (Wharton 1907:279). The treatise is vague about the
geographical spread of this rule in the 19th century; in fact both New Mexico and Utah
passed versions of it, and Georgia partially adopted it by court decision. See New Mexico
Comp. Laws, sec. 1076 (1897); Utah Camp. Laws, sec. 1925 (1876); Biggs v. State (1860).
Umphrey 411
right excused the killing of an adulterer if the wronged husband

found his wife and her paramour in flagrante delicto, a rule that
went well beyond the classic common law approach to provoca-
tion.21 Though unusual in its official status, the Texas statute
crystallized in a relatively untempered form assumptions about
white masculinity and honor that were widespread in, but by no
means limited to, the South. 22 As historian Bertram Wyatt-Brown
(1982:364-65) has argued, honor was "a filter or medium
through which specific cases were often decided," and at least in
small communities, law tended to mold itself to local opinion,
"adjusting the penalties of shame to meet community demands."
One can see in the general expansion of the contours of provoca-
tion over time the ways in which formal legal rules contain within
them values, implicit and explicit, from other legal domains
(both social custom and trials, to the extent that Wharton's rules
are derived from court opinions) which in tum reconstitute the
substance of written law. Formal law enters the domain of the
trial in an already-dialogized state, constituted internally in rela-
tion to the domain it nominally governs, that of everyday life and
consciousness. But this relation is not simply one in which law
"mirrors" society; rather it is a relation of conflict, of struggle for
the power and authority to define criminal culpability and its
consequences.
The Dialogics of Legal Narrative: Harry Thaw's Trial
The substance of the unwritten law as it was articulated at

trial emerged from the defense's paradoxical origins: even as the
defense was raised in order to convince a jury to acquit, it had, in
and of itself, no formal legitimacy precisely because it did not
have the status of positive law. The very presence of unwritten law
claims in the courtroom, then, depended on the articulation of
two substantively different dialogic relationships: not only the re-
lationship between written and unwritten norms of provocation
and excuse {the terms of contest with the prosecution), but the
relationship, with regard to the law of criminal responsibility, be-
21 Wharton 1907:307: "So, an act of adultery with the wife of a man who kills the
adulterer therefor, provided the killing takes place before !he parties to the act of adul-
tery have separated, is made by statute in Texas not only a sufficient provocation to re-
duce the crime of killing to manslaughter, but a complete justification therefor." In the
usual course of events, the only killings for which a civilian (i.e., someone not working in
an official capacity for the state) may be fully justified or excused are those done in self-
defense, those done to prevent a heinous felony (murder, rape, arson, and so forth), and
those done while insane.
22 These assumptions informed not only justifications for the duel-the paradig-
matic example of honor-based violence-but other areas of formal law as well. Some
states, for example, eliminated the English common law rule that one has a duty to "re-
treat to the wall" before defending oneself against deadly force, substituting in its stead
what became known as the American "true man" doctrine that one need not fly in the
face of such a lhreat. See Brown 1991.
tween honor and insanity. Defense attorneys, in need of present-

ing some kind of "legitimate" defense that would allow a jury to
acquit their clients outright (rather than mitigation through a
provocation defense), offered insanity as a formal legal defense.
But the insanity plea was not purely an instrumental means of
sneaking the unwritten law into the proceedings. Theoretically,
the two defenses devolved in contradictory directions: the in-
sanity plea emphasized a lack of rationality and agency, while the
unwritten law privileged a manly response to sexual humiliation.
Yet they were also mutually dependent insofar as each partially
supplemented the other accounting for acts arising from sexual
humiliation. Indeed, the problem of interpreting rage and obses-
sion lies at the heart of the dialogic relation between the unwrit-
ten law and insanity pleas.
In narrative, if not in theory, righteous indignation can coex-
ist with irrational excess to create a powerful story of exoneration
that answers positive law's accusation of malice. Trials provide
the space within which such dialogic relations are, through nar-
rative, made material and put on display. Because of their adver-
sarial and polyvocal structure, trials literally stage clashes of
meaning as attorneys attempt to construct persuasive narratives
to sway decisionmakers. Adopting Bakhtinian terms, one might
say that the task of each opposing advocate is to mount an argu-
ment that takes on the air of an "authoritative discourse" (em-
bodying "authority as such, or the authoritativeness of tradition,
of generally acknowledged truths," and so on), and then to trans-
form that discourse into one that is "internally-persuasive,"
"tightly interwoven with 'one's own word"' (Bakhtin 1981:344-
45). What, then, makes a story persuasive? More specifically, what
narrative strategies did Delphin Delmas marshal in Harry Thaw's
first trial in the attempt to gain his acquittal?
Narrative theorists argue that particular narratives gain credi-
bility and persuasiveness through an act of seduction. "Seduction
as a narrative tactic," argues Ross Chambers (1984:215}, "takes
the form of recruiting the desires of the other in the interests of
maintaining narrative authority"; that is, the narrator maintains
his or her authority to narrate by exchanging something that the
listener wants for the listener's attention. This kind of seduction
is associated with authority because granting one's attention is at
least a contingent acknowledgment of a story's power; moreover,
because stories can partially construct their listeners' responses,
they in effect subjugate through seduction, implicating what
Brooks (1984:61) calls the "shaping power of desire." Thus "au-
thority and seduction are in a sense interchangeable" (Chambers
1984:218).
In Harry Thaw's trial, Delphin Delmas tried to gain authori-
zation for the unwritten law narrative in two distinct but related
ways: by drawing on the generic conventions of melodrama, and
Umphrey 413
by rhetorically interpolating jury members (and by extension the

general public) into the heroic roles of the melodrama he had
narrated. Both of these tactics had been used with success in ear-
lier major unwritten law trials.23 Melodrama, a mode of concep-
tion and expression characterized by emotional excess, height-
ened dramatization, and the symbolic confrontation between
starkly polarized, even hyperbolic characters signifying a mani-
chaean opposition between good and evil (Brooks 1976:ix-xiii,
11), was one of the 19th century's predominant representational
forms, particularly in the theater (Mason 1993:15). Melodrama
articulates moral conflict as a confrontation between good and
evil, hero and villain. To be narratively satisfying, the audience
must witness and endorse the expulsion of evil and the admira-
tion of virtue: the girl must be rescued from the railroad tracks
and the shady man in black banished. This structure sutures
neatly into the courtroom, a place in which opposing attomeys
tend to emphasize moral clarity over nuance as they argue their
cases, casting their side as heroic, the other as villainous. 24 The
dramatic tension in melodrama lies in the possibility that virtue
will be masked or misrecognized through misunderstanding, dis-
guise, or manipulation. Describing melodrama as a "drama of
recognition," Brooks argues that virtue's recovery depends upon
its public acknowledgment, often figured in a full-fledged trial
"where virtue's advocates deploy all arms to win the victory of
truth over appearance and to explain the deep meaning of enig-
matic and misleading signs" (Brooks 1976:27, 31). Delmas does
precisely this in raising the unwritten law defense, as he works to
characterize Stanford White in such a way that jurors would rec-
ognize Thaw's act as a triumph over evil, not an evil act itself.
Yet to introduce the melodramatic narrative that would jus-
tify an acquittal, Delmas had to overcome a significant proce-
dural hurdle: rules of relevance that prohibited any testimony
about either Stanford White's character or the relations he had
23 Take, as an example, the first of the 19th-century's well-known unwritten law tri-
als, the 1859 trial of New York Congressman Daniel Sickles for the killing of U.S. District
Attorney Philip Barton Key. Sickles, the day after receiving credible information that Key
was having an affair with Sickles's wife Teresa, confronted and shot Key three times. De-
fense attorney John Graham painted a picture of a villain justly eliminated by an honora-
ble defendant, and explicitly interpolated the jury into that narrative. Having entered a
plea of not guilty by reason of insanity, he instead argued to the jury that it alone could
"fix the price of the marriage bed" (Sickks-Key 1859:25); that the greatest provocation one
man can give another is to "pollute his wife" (ibid., p. 70); that in killing Key, Sickles had
done nothing more or less than "become a man • (ibid., p. 98). "That life, taken away as it
was," Graham argued, "may prove your and my gain. You know not how soon the wife or
daughter of some one of you would have been-in fact you know not but she had been-
marked by the same eyes that destroyed the marriage relations of the defendant" (ibid., p.
25). Sickles was acquitted, to great acclaim, as were a number of other defendants in the
era's spectacular unwritten law trials, on similar terms.
24 Ferguson ( 1996:87) makes the general point that genre is a crucial aspect of
courtroom narrative: "[A]dvocates ... know that jurors must first recognize the develoP'
ing contours of a story to accept it, and the perception makes them practical students of
preexisting narrative forms."
with Evelyn Nesbit. Without that evidence Delmas could not es-
tablish the social and sexual landscape necessary to narrate the
melodrama of the unwritten law. And yet here lay the strategic
value of the defense's dialogic constitution. Delmas drew on the
prerequisites of the insanity defense, carefully crafting Evelyn
Nesbit's testimony in the classic literary form of the framed tale:
she described her relations with White by describing the effect
her own, earlier telling of that story (a story of drugging and
rape) had on Thaw's mind. The truth of the story was not at issue
and could not be contested by the prosecution; only the truth of
the telling mattered, and there were no witnesses to that particu-
lar narrative transaction. The story's effects on Thaw, it appeared
from Nesbit's testimony, were powerful, almost overwhelming;
and in detailing those effects on the stand she told a parable
about the power of narrative.
Nesbit began her testimony by describing the night of the
murder; then Delmas took her back to a scene in Paris, in June
1903-the night Thaw first proposed to her. She testified that
she refused him because of a particular event in her life con-
nected with Stanford White, then described her conversation
with Thaw about that event. District Attorney William Travers Je-
rome objected to the admission of that evidence; but Nesbit
swore that she would recount only what she told Thaw of White's
behavior, which appears to have been a very long and detailed
story indeed. "He told me to tell him everything," she said, and
what she swore she confessed to Thaw, she also confessed to the
jury and the public. 25 She recounted her first meeting with White
in 1901, when she was 16, of first riding in his red velvet swing
and piercing his paper umbrella with her foot, and detailed his
later gifts and his parties. Finally, she described "occurrences"
that took place in one of White's many studios during a time
when her mother was out of town. They had eaten dinner alone,
she said, reconstructing what she told Thaw; then White took her
through several rooms she had not yet seen.
Mr. White asked me to come to see the back room, and he
went through some curtains, and the back room was a bed-
room, and I sat down at the table, a tiny little table. There was a
bottle of champagne, a small bottle, and one glass. Mr. White
picked up the bottle and poured the glass full of cham-
pagne.... I don't know whether it was a minute after or two
minutes after, but a pounding began in my ears, a something
and pounding, then the whole room seemed to go around.
Everything got very flat.
Then when I woke up, all my clothes were pulled off of me,
and I was in bed. I sat up in the bed, and started to scream. Mr.
25 Nesbit's testimony was considered so scandalous that it provoked nationwide calls
for censo111hip of the press, and President Theodore Roosevelt investigated the possibility
of prohibiting the circulation of the "full disgusting particula111" of the Thaw case through
the mails as obscene. New Yoril Times, 12 Feb. 1907.
Umphrey 415
White was there and got up and put on one of the kimonos.
The kimono was lying on a chair, and then I moved up and
pulled some covers over me and sat up, and there were mirrors
all around the bed. There were mirrors on the side of the wall
and on top. Then I screamed, and he came over and asked me
to please keep quiet, that I must not make so much noise. He
said, "It is all over, it is all over." Then I screamed, "Oh no!"
(New Yom Times, 7 Feb. 1907)
Thaw became very excited, Nesbit testified, after she told him
this story. "He would get up and walk up and down the room a
minute and then come and sit down and say, 'Oh God! Oh God!'
and bit his nails like that, and keep sobbing." Here the seductive
operations of narrative are clearly visible. Nesbit is testifYing to a
situation in which the audience of a particular story-Thaw-is
overcome with emotion to the point of hysteria. Her story has
carried him with her through her own seduction, drugging, and
rape-her victimization at the hands of a libertine-emplotted as
a classic melodrama. One can see in his exclamations and sobs a
deeply impassioned, even identificatory response to Nesbit's
story; her tragedy has become his own.
Moreover, the testimonial stance the law required her to take
(i.e., recounting facts in the form of a tale she told to Thaw)
enabled Nesbit and Delmas to displace the first audience-
Thaw-with the second-the jury and the public. Their narrative
tactic was metathetic: provoke the same emotional response in
the second audience as was provoked in the first; transpose one
listener for another. This gesture toward an implied audience,
interpolating juror for defendant, is Delmas's second tactic of se-
duction. Here, the plot of Nesbit's framed tale is designed to en-
tice the listener into its generic logic: innocence betrayed, injury
redressed, honor and order restored. This structure and lan-
guage bolster the tactic by provoking the intense emotionalism
associated with melodrama. Its rendering of womanhood fits
neatly with its conventional typological tendencies: in the version
Nesbit narrated at trial she is made into the guileless innocent,
seduced and despoiled by a manipulative villain. Yet melodrama,
far from offering only cardboard cutout of a morality tale,
presents "a drama of morality: it strives to find, to articulate, to
demonstrate, to 'prove' the existence of a moral universe"
(Brooks 1976:20); and to the extent that it makes those greater
claims on its audience, it does so by drawing them emotionally
into the conflict, by creating a narrative paradigm whose out-
come is already a predetermined "celebrat[ion of] the sign of the
right" (ibid., p. 43). It is precisely this kind of positioning of the
self in sympathy with moral good that Delmas claims as the basis
authorizing this, rather than the prosecution's, narrative of re-
sponsibility.
Men, judge your fellow man as you would be judged, and

in order to judge him, place yourself, as far as in your power
lies, in the spot where he stood, surround yourself with the cir-
cumstances that surrounded him, then, and then only, will you
be able to do him justice, which you under oath have promised
to do. (New York Times, 10 April 1907)
If Delmas were to have privileged an insanity-based interpreta-
tion of Nesbit's story, his appeal to the jury would have appealed
to its members' sympathies by emphasizing Thaw's alienation
from reason and cultural common sense. But with this interpola-
tive tactic one can see that Delmas wished to privilege an honor-
oriented interpretation of Nesbit's narrative and Thaw's shoot-
ing. Far from emphasizing Thaw's difference from the jurors,
Delmas tries to provoke identificatory responses in order to draw
them into the logic of his story.
And yet Thaw's response to Nesbit's story can be assimilated
to the discursive fields of both domains of honor and insanity.
Nesbit's story provides evidence for either framework, an ambi-
guity Delmas exploited by supplementing her testimony with that
of a number of medical experts. Those experts offered testimony
on the question of Thaw's state of mind to support the argu-
ment, made in other unwritten law cases as well, that Thaw suf-
fered from some sort of temporary insanity at the time of the
shooting (though, much to the chagrin of the public and the
medico-legal community more generally, the experts were un-
able to agree on a plausible diagnosis that would also satisfy the
M'Naghten standard). 26 This claim was not presented precisely
as an argument "in the alternative" to the honor defense; rather
it was meant to complement and color the substance of the de-
fense in suggesting that any man of honor would respond with
righteous rage to insult and humiliation at the hands of a sexual
rival. 27 That melding of theoretically contradictory claims-that
Nesbit's story provoked both moral outrage, resolved through in-
tentional and honorable violence, and a kind of mental instabil-
ity that could dissipate only when its symbolic provocateur disap-
peared-became the cornerstone of Delmas's most powerfully
stated closing argument:
26 Medical experts from both sides offered conflicting testimony on the nature and
extent of Thaw's insanity. Indeed, though initially arguing against the insanity defense,
the prosecution at one point in the first trial's proceedings demanded and received a
hearing in front of a "lunacy commission" to determine whether Thaw was competent to
advise counsel (he was declared competent). This move placed the defense in the awk-
ward, though not impossible, position of having to argue that Thaw suffered from a
mental disorder serious enough that it should excuse him from murder but that it had
ceased or receded by the time of his trial. Members of the medico-legal community felt
that their struggle for professional respectability had been marred by the Thaw trials'
"batde of the experts" (see Bell 1907; Hamilton 1907; Mcintyre 1907; Osborne 1907; Som-
erville 1907; Halsey 1908; Keedy 1911-12, 1915) in spite of Thaw's ultimate acquittal and
confinement in Matteawan Asylum.
27 This claim elaborated most fully in Sickles and McFarland, in the defense's recita-
tion of a biblical rassage: "jealousy is the rage of man."
Umphrey 417
The learned alienists have left the matter in an uncertain con-

dition, because they have not classified the insanity under
which the defendant was labouring at the time. Gentlemen, I
care not whether you give that insanity a name or not. It is a
species of insanity which, though it may be unknown to those
learned alienists, is perfectly familiar to every man who has a
family, and to the history of jurisprudence in these United
States. It is a species of insanity which has been recognized in
every Court, in every State in this Union, from the Canadian
border to the Gulf of Texas. It is that species of insanity which,
if you desire to give it a name, I will ask you to label it dementia
Americana. It is that species of insanity which makes every home
sacred. It is that species of insanity which makes a man believe
that the honour of his wife is sacred; it is that species of insanity
which makes him believe that whoever invades the sanctity of
that home, whoever brings pollution upon that daughter, who-
ever stains the virtue of that wife, has forfeited the protection of
human laws and must look to the eternal justice and mercy of
God. (New York Times, 10 April 1907)
And indeed, despite the internal contradictions of the unwritten
law defense, at least part of the broader public succumbed to it.
Journalists covering the trial replicated Delmas's melodramatic
language in their own coverage. "The worst has been told," wrote
journalist Ada Patterson.
Nothing else could ever approach the horror of that story of a
poor, beautiful, foolish, ignorant girl of sixteen pursued with
the wealth and ferocity of a panther, by a man old enough to
be her grandfather. How he marked her for his prey when he
first saw her ... how he stalked her down ... how he wooed her
to him with gifts; how he lulled her suspicions to rest, and how,
when she utterly trusted him and revered him like a god for
what she thought was his goodness to her, he turned upon her
and slayed all that was pure and innocent in her, made up a
recital that seemed to those who heard it to drip blood at every
word. (New York American, 8 Feb. 1907)
Patterson's narrative voice suggests that she herself witnessed
Nesbit's downfall, the indignant tone indicating that she under-
stood Nesbit's feelings and responses almost as if she herself had
felt them. Nesbit's narrative had moved her just as it had moved
Thaw.
The Dialogics of Legal Meaning: The Domain of the Trial

However successful Delmas was at using Nesbit's testimony to
win over certain parts of the press (see Abramson 1990), the au-
dience obviously most in need of wooing was Thaw's 12-manjury;
and with that problem we return to a more general consideration
of the trial as the domain in which processes of legal meaning
making are materialized. That is, we move from an analysis of the
dialogic nature of particular narratives to an analysis of the dia-
logic structure of the trial itself. On the most obvious level, trials
are dialogic because they provide a forum for contestation be-
tween highly stylized narratives of culpability and exculpation.
Jury verdicts in effect ratify (though perhaps only partially and
imperfectly) the authority of one particular version of events
over another or (as was the case in Thaw's first jury's hung ver-
dict) the authority of neither. Jury verdicts, because of their se-
crecy and terseness, almost never precisely demarcate the bases
upon which one story was rejected in favor of another. On a gen-
eral level, though, narrative theory can help in the articulation of
some grounds for assessing a jury's resistance to the seductive
power of any given story. 2s
Chambers (1984:8) claims that narrative authority in the end
depends on the production of shared meanings, an initial con-
tract or understanding between teller and listener as to the terms
and logic of the narrative. In legal terms, a contract can be de-
scribed as a "meeting of the minds." If, as Bakhtin argues, mean-
ing emerges in the relation between discourses, and between dis-
course and context (see also Chambers 1984:3), then Delmas's
ultimate inability to locate and consolidate a shared narrative ter-
rain stemmed from a perceived gap between his claims and the
social meanings the jury would ascribe to them. 29 The prosecu-
tor's narrative attempted to exploit that gap with a narrative of
debasement, one that disputed the unwritten law's high tone of
moral righteousness. Again and again in cross-examination, Dis-
trict Attorney Jerome undercut Nesbit's claim to innocence, forc-
ing her to admit that she had taken money from White after he
raped her, that she had traveled as Thaw's wife before they were
married, that she had lived a fast life both in New York and on
the Continent. "Dementia Americana doesn't for two years flaunt
an unfortunate girl as his mistress," Jerome argued in his closing
statement. "Gentlemen, this is no case of a Saint George rescuing
his maiden. This is a mere, common, sordid, vulgar, everyday
Tenderloin homicide, and you know it! ... The angel child that
Mr. Delmas would paint her to be, reared chastely and purely, as
she herself tells you, drugged and despoiled! Why, what non-
28 While any exploration of the complex and varied popular responses to Delmas's
melodrama lies beyond the scope of this essay, one can sense from letters to the editors of
major newspaper a tendency to condemn not just Stanford White for his libertinous be-
havior but also Evelyn Nesbit, Harry Thaw, and more generally New York's "sporting"
nightlife culture. Both Thaw and Nesbit clearly had their defenders, but one can specu-
late that they were more vulnerable to public critique in part because Nesbit was put on
the stand and subjected to cross-examination. In earlier unwritten law trials of some noto-
riety, the woman at the center of the case was generally denied the opportunity to testifY
based on a claim of spousal privilege-a tactic that generally protected the reputation of
the defendant who might otherwise have been show to be less than morally pure. In this
regard, see the trials of Sickles (1859) and McFarland (1870).
29 As Ferguson (1996:86) has argued, the most believable stories have some "con-
temporary understanding"; that is, some credible correlation with contemporaneous cul-
tural codes.
Umphrey 419
sense to come here and tell twelve men! She of the Florodora
chorus! She dragged into this den of vice and drugged!" (New
York Times, 10 April1907). Here jerome's language is, as Bakhtin
would describe it, double-voiced (Bakhtin 1981:324). In its ironic
repetition of Delmas's own words ("dementia americana," "angel
child"), the prosecutorial discourse serves two speakers at the
same time-a rhetorical stance that displays its own dialogic rela-
tion to the opposing discourse. 30 Jerome in this rebuttal empha-
sizes not only immorality (in order to counter Delmas's heroic
melodrama) but also agency ("flaunting"; the ironic reference to
Nesbit's claims of victimization) in response to the unwritten
law's partial reliance on a mental incapacity argument.
While it may seem as though I am belaboring the obvious in
indicating the ways in which jerome's argument depends on and
specifically responds to Delmas's argument (how else would we
expect courtroom advocates to behave?), my point is precisely
that there is a close relationship between legal disputation in the
courtroom and the ways in which (seen through a Bakhtinian
lens) legal meaning is produced more generally. Taken as a
whole, this struggle or clash between advocates becomes not just
a metaphor for, but an example of, the process by which legal
meanings are made and remade. What, then, can Thaw's first
trial's hung jury be said to signify? Within the scope of the narra-
tive transaction, a hung jury is one whose individual members
differentially refuse seduction. The jury's nonjudgment is really
an ambivalence: it cannot firmly decide guilt. or innocence be-
cause neither the prosecutor's nor the defense's narrative carries
enough authority to sway all its members. More than that,
though, Thaw's hung jury marked a moment of crisis in the law
of criminal responsibility; and its ambivalence was itself a legal
utterance, one that confirmed that-at least in the context of
these kinds of killings-"responsibility" was a term of uncertain
meaning, fully related neither to honor nor to malice nor to in-
sanity. (Thaw's second jury resolved that uncertainty in favor of
acquittal by insanity, but only after the defense purified its narra-
tive of reference to honor and fortified it with evidence of hered-
itary instability.) Thaw's spectacular trial placed that struggle
over the meaning of responsibility on display in the broadest pos-
sible way.
Ultimately, verdicts and substantive rulings feed back into
formal law via common law reasoning and treatise writing even as
spectacular trials become points of reference in a broad set of
conversations about social norms and relations, cultural codes
and nodes of resistance. Such trials circulate in and through both
formal law and everyday life, as potential material for the articu-
30 Bakhtin (1981:324) argues that double-voiced discourse is always internally dialo-
gized.
lation and elaboration of legal principle and procedure, and as a

cultural texts for public consumption (whether as moral lesson,
as object of parody, as site of social self-definition, or as entertain-
ment). In other words, these trials (if not trials in general) not
only constitute the legal domain mediating between script and
consciousness; they also partially instantiate the domains of script
and consciousness themselves. The very spectacularity of these
trials marks the space oflaw's performative identity, its "doing" as
and within culture; and emerging from a consideration of such
trials-a consideration informed by Bakhtin and other literary
theorists-is a vision of law as narrated, negotiated, internally
contested, and hence discursively unstable. Far from offering
mumbo jumbo to a public thrilled by the display oflaw's incoher-
ence, Harry Thaw's trial and others like it instead propose a new
way of conceiving a history of legal meaning: not the history of
formal law corrupted by spectacularity, but one of discursive in-
stability itself.
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Q Taylor & Francis
[6]
KISSING HANDS AND KNEES: HEGEMONY
AND HIERARCHY IN SHARI'A
DISCOURSE
BRINKLEY MESSICK
Two categories of Muslim legal texts are utilized in Yemen. In

the methodological literature I examine conceptions of common sense
and consensus, and the relation of knowledge and ignorance. In the
applied literature, I review egalitarian and hierarchical themes. The
hegemonic qualities of such texts derive from their appropriation of
ordinary wisdom and from the shifting polyvocality of the texts
themselves.
I. SHARI'A TEXTS 1
Only a few men must know the law, attend the funeral
service, perform the Jihad and respond to greeting, while
the others are exempt. So those who know the law, per-
form the Jihad, attend the funeral service, and respond to
greeting will be rewarded, while the others do not fall into
error since a sufficient number fulfill the collective duty
(al-Shafi'i [d. 820], 1961).
Knowledge is the understanding of that which is known as

it is in reality; ignorance is the imagining of a thing other
than as it is in reality (al-Juwayni [d. 1085], n.d.).
A man exercising a lowly profession is not a suitable match

· for the daughter of a man in a more distinguished profes-
sion. Thus a sweeper, a bloodletter, a watchman, a shep-
The development of my thinking about law has been stimulated by partic-
ipation in the Amherst Seminar. I have benefited from comments on an ear-
lier draft of this paper by Sally Merry and Barbara Yngvesson, and by Stefania
Pandolfo and Uday Mehta, and helpful comments at a later stage were pro-
vided by members of the seminar, especially Adelaide Villmoare and Christine
Harrington, and by two anonymous LSR reviewers.
1 The legal texts I refer to are mainly from the Shafi'i "school," one of
the four principal schools of Sunni Islam. These include a treatise by al-Shafi'i
(1961), a brief method manual by al-Juwayni (n.d.), a concise statement of
"positive" principles by Abu Shuja' (1859), which is also embedded in a
commentary by al-Ghazzi (1894); and a longer abridgement of similar material
by al-Nawawi (n.d.; 1882-4). I also refer to an important Shi'i manual of the
Zaydi school by al-Murtada (1972). For reasons of space I have not provided
full page citations to these works, and I provide only limited references to the
large secondary literature on Islamic law.
638 HEGEMONY AND HIERARCHY IN SHARI'A DISCOURSE

herd, or a bathhouse operator is not a suitable match for
the daughter of a tailor; and the tailor is not suited for the
daughter of a merchant or a cloth seller; nor they, like-
wise, for the daughter of a scholar or judge (al-Nawawi, [d.
1277], n.d.).
II. SKETCH: JUDGE AND CLAIMANT

It is September 1975, mid-afternoon, in the small highland
town of Ibb, Yemen Arab Republic. 2 A man from a rural village
makes his way along stone paved alleys and through the central
market street to the shari'a judge's house near the Great Mosque.
Formal court is held only in the mornings, but judges also receive
people in their residences after lunch. Arriving at the house, the
man pauses to greet two soldier-retainers lounging on benches just
inside the front entrance and then climbs the steps to the semi-
public, first floor sitting room. His loosely wrapped turban, soiled
and open shirt, bare feet, and rough, cracked hands indicate he is a
modest tiller of the soil, perhaps a tenant on terraces owned by an
Ibb landlord.
Inside the sitting room, the judge is relaxing after his meal.
He is dressed informally in a white skull cap and herringbone vest
over a long, pure white gown buttoned up to his neck. His dagger,
in an elaborate metal sheath and embroidered dagger belt, his
scholar's turban, and his long outer coat and shawl hang from
hooks on the wall. The fingers of the old judge's hands are long
and smooth, accustomed to the discipline of the pen.
Uttering an initial greeting at the door, the man enters and
advances across the room toward the seated judge, and then ab-
ruptly stoops to kiss the judge's hand and knee. In a nearly simul-
taneous gesture, the judge brushes off the kisses and raises the
man up to a seated position before him. Sitting back on his
haunches, the man says to the judge, "I am a weak country person.
I am in your hands."
III. A GRAMSCIAN PROJECT

An important advance in the study of what Marx called "rul-
ing ideas" has been to complement an understanding of the force-
ful imposition of such ideas with analyses foregrounding their con-
sensual acceptance. Gramsci was among the initiators of this
move, asserting (in the words of his biographer) that a "system's
real strength does not lie in the violence of the ruling class or the
coercive power of its state apparatus, but in the acceptance by the
ruled of a 'conception of the world' which belongs to the rulers"
2 Research in Yemen was funded by a Foreign Area Fellowship (1974-76)
and a Postdoctoral grant (1980), both from the Joint Committee on the Near
and Middle East of the Social Science Research Council and the American
Council of Learned Societies.
MESSICK 639
(Fiori, 1973: 238). One problem for Gramsci was understanding

how ideas originally articulated by an intellectual elite came to
constitute the quietly constraining, received wisdom of ordinary
people. "The philosophy of the ruling class passes through a whole
tissue of complex vulgarizations to emerge as 'common sense':
that is, the philosophy of the masses, who accept the morality, cus-
toms, the institutionalized rules of behavior of the society they live
in" (Ibid.).
In the meantime, Foucault (1980: 92-102) has advocated a dif-
fused notion of power that is located "everywhere," and that ema-
nates "from below," while Eco (1986: 248) has made light of the
simplistic old conception of dominance represented by "an evil
boss with a moustache who, at the keyboard of a maleficient com-
puter, taps out the perdition of the working class." Given these
sorts of decentered understandings of the locus of power relations,
what analytic place remains for authoritative, mandarin-produced
textual doctrines? In examining the hegemonic quality of law,
how do we now situate and reevaluate that classical source of ap-
parently ruling ideas, i.e., law on the books?
In considering the relation of elite and vernacular knowledge,
we must go beyond an emphasis on either "trickle-down" or
"trickle-up" effects (Gordon 1984: 121) and stress instead dialecti-
cal interconnections. Each type of knowledge should be thought of
as standing in a complex, constituting/constituted relation to the
other. In such an analysis, however, ordinary knowledge is likely
to be slighted, unless it can be provided substantial theoretical
weight. This can be accomplished, I suggest, by tying a developed
conception of common sense to a de-centered understanding of
hegemonic power.
What I am advocating is a refinement of an analytic shift from
culture to ideology already under way among anthropologists con-
cerned with the law (e.g., Merry, 1985; Yngvesson, 1985). The
thrust of the shift in progress has been to foreground the constitu-
tive power implications, the ideological qualities of shared cultural
understandings. The refinement I propose requires, as a first step,
the invocation of an essential theoretical substratum of the influ-
ential work by Geertz (1973; 1983) on the concept of culture,
namely, his conception of common sense. This taken-for-granted,
unself-conscious level of everyday social notions is precisely the
level of thought addressed as his interpretive method taps the "na-
tive's point of view." Anthropological accounts of this type actu-
ally represent interpretations of interpretations (1973: 15), inas-
much as the indigenous common sense on which an account is
based is itself already "an interpretation of the immediacies of ex-
perience" (1983: 76). Aside from the fact that such everyday un-
derstandings constitute the essential site of interpretive departure
for his method in general, Geertz (1983: 73-93) has also discussed
common sense as a special type of "cultural system." He treats
common sense "as a relatively organized body of considered

thought," despite the fact that it is "an inherent characteristic of
common-sense thought precisely to deny this and to affirm that its
tenets are immediate deliverances of experience, not deliberated
reflections upon it" (1983: 75). First among the other characteris-
tics he adduces for common sense is a decisive air of "naturalness"
imparted to what is, in fact, a highly particular, historically consti-
tuted rendering of reality; in turn, this ordinary wisdom takes the
givenness of the world it has constituted as its indisputable author-
ity.
The second step in my suggested refinement is to work toward
a linkage between common sense and the consensual power it em-
beds. The analytic move underway from culture to ideology can be
developed, in short, by a further move from common sense to he-
gemony. In my view, the overall task is to complement our under-
standings of centered, coercive, and explicitly elaborated forms of
power, by means of analyses of de-centered, consensual and im-
plicit ones. Hegemonic efficacy owes as much to what is held to be
ordinary wisdom as to what is held to be doctrine and depends on
the connection between the two.
The Gramscian project I want to undertake is concerned with
a particular conception of the world, located, in its most elaborated
version, in a corpus of legal texts, the jurisprudence of Islamic law.
Comprehensive in its sweep of subject matter, the shari'a contains
matters public and private, civil and criminal, and includes, among
other things, a full spectrum of ritual rules, a wide range of con-
tract forms, institutions of taxation and charity, and principles con-
cerning procedure and punishment; it is "sacred" in that it is de-
rived from the Quran (the Word of God) and the Sunna (sayings
and doings) of the Prophet Muhammad. Thus the shari'a com-
prises a detailed and authoritative image of the Muslim social or-
der.
As I focus mainly on texts, I make no claim to be fully imple-
menting the overall task outlined earlier. Approaching main-
stream works of the Muslim "discoursive tradition" (Asad, 1986), I
am concerned with the implicit foundations and unstated implica-
tions of explicit textual formulations. I am specifically interested
in textual strategies relevant to the construction and exercise of
hegemony in the social world. The body of the paper is divided
into two sections dealing with two levels of Muslim jurisprudential
texts, one methodological, the other applied. Referring to the
methodological branch of this literature, I examine the relation-
ship developed there between knowledge and ignorance, and asso-
ciated theories of received wisdom and consensus. Such texts
reach out powerfully to represent the common sense of the ordi-
nary person, legitimizing it on the one hand while characterizing it
as deficient on the other. At the same time, they assert an author-
MESSICK 641
itative claim to a more precise and restricted method of defining
the categories and contours of reality.
Referring to manuals of applied law, I consider the problem-
atic treatment of social hierarchy, which is also central to the en-
acted relations of the Yemeni social order. I argue that despite its
internal positivism and logical form the textual image presented of
Muslim society is deeply ambiguous, variously emphasizing contra-
dictory hierarchical and egalitarian doctrines. Subverting itself at
every doctrinal step, the textual discourse offers the 'means of its
own critique. And yet ultimately, in my interpretation, this
polyvocality works effectively to hamstring any penetrating or sus-
tained critical effort.
Since their respective provenances are far removed from
Yemen in both time and place, the shari'a texts in question might
appear to be of questionable relevance to contemporary society in
the town of Ibb. The conventional western scholarly wisdom con-
cerning the shari'a is, in fact, that it was largely irrelevant, princi-
pally because it has been understood by observers as set in place
and immutable from an early date (e.g., Anderson, 1959).
Although the texts I cite were (with one exception) written by
non-Yemeni jurists, men who lived between six and eleven centu-
ries ago in Egypt, Syria, and Iraq, until the late 1950s, when the
old style schools were closed in towns such as lbb, several of them
were committed to memory and interpreted, with the guidance of
teachers and the aid of an accompanying commentary literature.
The majority of Yemen's contemporary judiciary, including the lbb
judge in Part II were formed in this old instructional system.
The relevance of these texts further depends, however, on
their distinctive, but little appreciated qualities as texts. There
was no period of western colonial rule in Yemen, and there has
been no imposition of western law: officially the shari'a remains
the source of all laws. Until it began to undergo a fundamental
transformation in the process of being promulgated in a new, re-
stated, and abstract legislative form by the Republican state more
than a decade after the Revolution of 1962, the shari'a was not law
in the western sense. Likewise, this jurisprudence was located not
so much on the books, that is, in written form, as it was embodied
in men, transmitted in the old pedagogy from scholar to scholar in
exclusively oral-recitationallinks. This pedagogical style was part
of a wider, epistemological valuation of the spoken word and a de-
valuation of (despite heavy practical reliance on) written forms
(Messick, forthcoming). The text lives not only in its human em-
bodiers but in its i~terpretive articulations, that is, in social rela-
tions.
As a counterpart to this living, embodied and recitational qual-
ity, the texts are characterized by an insufficiency, because of their
extreme (and thus memorizable) concision and their implicitness,
which necessitated interpretation. If they were, in a sense, immu-
table, that is, conservatively preserved through generations of

teacher-to-student recitational links, their insufficiency amounted
to a mutable instability, a radical openness to the world, and a con-
tinuing requirement of commentary and interpretive intervention
(both by non-precedent setting formal judging and by unofficial
but authoritative opinion giving by jurisconsults known as muftis
(Messick, 1986)).
IV. THE TERRAIN OF KNOWLEDGE

From the perspective of the Muslim jurist/scholar, society is
divided into two general categories of individuals, the 'alim (pl.
'ulama'), the individual who has knowledge ('ilm), and the jahil
(pl. juhhal), the individual without knowledge, an "ignorant per-
son." The acquisition of knowledge, the centerpiece of which is
the shari'a itself, is an activity securely hedged about with socially
vested honor. A student, such as the lbb judge in his youth, who
began committing to memory the basic local shari'a manual au-
thored by al-Nawawi, soon encountered the statement that work-
ing to gain knowledge "is among the finest of pious deeds." The
opening words of the text are that an individual who becomes
knowledgeable in shari'a jurisprudence is one God "has shown
favor to and chosen among the believers." Numerous early Mus-
lim traditions, studiously collected, memorized, and repeated by
generations of jurists, articulate related ideas: that seeking knowl-
edge opens a road to Paradise; that knowledge accrues to individu-
als as a sign of divine grace, etc. 3 In the Quran there are related
statements: "God raises up by degrees [dar!Uat] those among you
who believe, and those who are given knowledge" (58: 11; cf. 39: 9);
and, "Say: My Lord, increase me in knowledge" (20: 114).
Scholars elaborated the opposing social categories of 'alim and
jahil and their characteristics, knowledge and ignorance, in a
methodological literature (in lbb, al-Juwayni, n.d.). Related collec-
tive social categories frequently used in scholarly discussions are
"the special people" (al-khawas) v. "the ordinary people" (al-
'awamm, or al-'amma; sing. 'ammi, an "ordinary person"), and
"the scholarly people" (ahl al-'ilm) versus "the people of the mun-
dane world" (ahl al-dunya). Yemeni scholars served not only as
judges but also as heads of state, local governors, and military com-
manders. Unlike most other historical societies in the Middle
East, where there was a marked division of labor between the
wielders of the pen and the sword, scholars in Yemen (like those
in contemporary Iran) have had combined intellectual and polit-
ical-military identities.
Within the categories of scholar and ignorant person there
were further subdivisions. Among scholars themselves, there were
long-standing debates and deep intellectual rifts concerning what
3 See Wensinck (1971), s.v., "knowledge"; Rosenthal (1970: 78ff).
MESSICK 643
properly constituted knowledge. Some, the mainstream individu-

als Hodgson (1974) has referred to as the "shari'a-minded," empha-
sized straight jurisprudence, although their ranks were subdivided
into several major and minor interpretive "schools." Others, such
as the Sufis, advocated various types and combinations of mysti-
cally oriented forms of knowledge and associated esoteric under-
standings of the Quran and the Traditions. In Ibb, however, the
basic shari'a manuals were the point of academic departure for the
scholarly of all intellectual bents. Aside from such vertical cleav-
ages within the elite, there were also horizontal or hierarchical
ones. Within the "shari'a-minded" jurist category, for example, a
range of attainment levels was identified, from individuals com-
plete in their knowledge to others who were deficient. Such dif-
ferences of intellectual status among shari'a jurists had a direct
bearing on qualification for, as well as social responsibilities result-
ing from, the crucial activity of legal interpretation.
At the base of the scholarly treatment of the category of jahil
and the condition of ignorance is an old understanding of human
nature. "A human is an essentially ignorant being [jahil] who ac-
quires knowledge," Ibn Khaldun (1968, vol. 2: 887) wrote in the
fourteenth century, summarizing an earlier Muslim (and Greek)
philosophical tradition. In the sphere of ignorance, some jurists
identified simple and complex versions. Relative ignorance was
also defined in terms of differing sorts of knowledge, the necessary
and the acquired. Acquired knowledge, the type marking the
scholar, is based on the learned skill of rational deduction. Neces-
sary knowledge, by contrast, characterized by the absence of any
capacity for or intervention of deduction is based on understanding
derived from the five senses, supplemented by what is known as
tawatur, the "knowledge of received wisdom."
Conveyed as uninterrupted tradition, tawatur knowledge can
be understood as an integral part of what Geertz refers to as the
common sense level of culture. According to the Muslim jurists,
this common wisdom is not necessarily mistaken, especially inas-
much as it represents an authoritative, if rudimentary, acknowl-
edgment of a given world. Two examples jurists give of the sound-
ness of such wisdom is, "the knowledge ('ilm) of the existence of
Mecca," site of the Muslim pilgrimage and scene of the earliest his-
torical events of the Islamic era, and also the recognition that
there was a Prophet named Muhammad. Some of the characteris-
tics of tawatur knowledge connect this Muslim conception to
Geertz's usage. As a type of necessary knowledge, the received
wisdom collectively held as tawatur is classified with knowledge
derived from sensory perceptions, which directly imposes itself on
the intellect without having been arrived at through reflection or
deduction. Also as are sensory perceptions, tawatur knowledge is
not subject to doubt as to its accuracy, but is taken instead as sim-
ply given in the order of things (cf. Zysow 1984 for further discus-
sion).
Tawatur knowledge, of course, represents a scholarly, concep-
tual rendering of the nature of common sense rather than the
sense itself. To this extent, Muslim jurists reflecting on tawatur
knowledge share an analytic posture with Geertz on common
sense. The object of tawatur theorizing is narrower however. The
Muslim scholars were exclusively concerned with an area of com-
mon sense containing kernels of historically significant received
wisdom or widely held ordinary knowledge of legitimizing rele-
vance. In the Muslim tradition, tawatur is a collective and popular
version of another related type of transmitted knowledge, known
as Traditions. With the Quran itself, Traditions are one of two ba-
sic sources of formal jurisprudential authority.
Creativity is at issue in the differentiation of necessary and ac-
quired types of knowledge: from the point of view of scholars, or-
dinary people are equipped, in a passive sense, for following or af-
firming known and established ways, but they are not properly
prepared for actively ascertaining correct courses of action in novel
circumstances. Such is the analogical reasoning-based interpretive
task of the trained scholar. The advanced manual by al-Juwayni
provides definitions of knowledge and ignorance that have been
cited at the outset. According to these definitions, the contrast of
'alim and jahil is one of disciplined reason v. undisciplined imagi-
nation, and what is at stake is an accurate and developed knowl-
edge of "reality" (al-waqi'). The link of this reality with Islam is
at least indicated by the scholarly efforts to pin down its precise
nature. As one commentator notes, "some say it [reality] is what .
God Almighty knows," while for others it is what is inscribed on
the celestial "Hidden Tablets." To acquire knowledge, then, is not
only to more completely realize human potential, but also is to
gain active access to an understanding of the world as constituted
by God. Such authoritative classificatory thought has powerful
consequences. A necessarily passive commonsensical wisdom of
the untutored is definitively represented as the characteristic
mentality of ordinary people (although, by definition, it must be
known to scholars as well). The condition of having this sort of
wisdom alone is then juxtaposed with a more complex, active, and
analytic wisdom of the scholarly, which is portrayed as providing
its practitioners with more secure and definitive access to a knowl-
edge of reality.
Language is a model for this knowledge and power relation-
ship. Arabic is subdivided by its speakers into a classical or liter-
ary language, called al-fusha, or simply "the language" (al-lugha),
and a purely spoken language known variously as al- 'ammiya ("or-
dinary language," i.e., pertaining to the 'ammi, the "ordinary per-
son"), al-darija (a word related to the d-r-j root, which is also used
to indicate a "degree" of status difference in the previously cited
MESSICK 645
Quranic text), or lahaja ("spoken dialect," a word carrying a literal

association with the tongue). There is an identification of scholars
with the classical written language and of the uneducated ordinary
people with the spoken dialects (although, again, scholars know di-
alects as well). The most perfect example of the language is the
Quran, "an Arabic Quran," as it describes itself. In the manuals
some words are first introduced in terms of their meaning in the
language, and this is followed by their meaning "in the shari'a."
Shari'a discourse represents a specialized subset of formal Arabic
usage in the same way that jurisprudence is a specialized subset of
all knowledge.
Grammar and the other language sciences pertain only to the
written language. It is not that dialects have no grammar, of
course, but that grammar, the recognized formal discipline, is asso-
ciated exclusively with what is defined as the language. Likewise,
to become articulate means to become so in the formal language,
while the important moral-educational transformation summa-
rized in the concept of adab, entails both a learning of appropriate,
restrained behavior and an acquisition of the literate skills. A
Yemeni scholar (al-Akwa' 1980: 11) writes that a particular
strength of the old instructional system, in which the Ibb judge
was formed, was that it allowed students the opportunity to "train
their tongues" with grammar. Aside from what this tells us about
the ideally disciplined nature of scholarly discourse, it also implies
that the speech of the uninstructed is as unruly as the individuals
are themselves irrational.
As a group, jurists came to exercise a decisive form of consen-
sual legitimation that was basic to the development of the shari'a.
"Consensus" (ijma'), departing from the two fundamental sources
(Quran and Traditions), and based on interpretive efforts under-
taken, was the final determinant of doctrine. As al-Juwayni says,
"consensus is the agreement of the scholars of an era on a matter."
This conception of the locus of the consensus-giving group is nar-
rower, however, than the idea attributed to the Prophet Muham-
mad in a well-known Tradition (quoted by al-Juwayni), which
serves as the textual authority for ijma'. The Tradition simply
states, "My community will never agree on error." This original
expression of the fundamental infallibility of the Muslim commu-
nity anchored the legitimacy of doctrinal elaborations in the con-
sensus of the collectivity.
This methodological literature, exemplified by the cited work
of al-Juwayni studied in Ibb, demonstrates a complex awareness of
the legitimizing potential of common sense and consensus. Com-
mon sense is both appreciated and appropriated for its authority-
giving qualities and also denigrated for its irrationality and vulgar-
ity of expression. Consensus is recognized as a decisive force, even
as its ground of determination shifted from the populace to the
scholarly elite. Exemplifying a strategic hegemonic sophistication,
this jurisprudence makes analytic distinctions among different

levels and sources of knowledge, and problematizes their interrela-
tions.
V. SHARI'A SOCIETY
At the base of the shari'a image of the world is a valued egali-
tarian ideal, contained in such frequently encountered constructs
as the notion of the umma, the "community of Muslims"; the
'ibad, the "believers"; al-muslimin, "the Muslims"; and the institu-
tion of the mosque, locus of collective prayer gathering. As its ba-
sic social feature, Islam launched a novel form of egalitarian com-
munity of the faithful, which stood opposed to both the tribal and
urban hierarchies of seventh century Arabia. This egalitarianism,
an "insistence that all men [are] on the same level before God"
(Hodgson, 1974, vol. 1: 281; cf. Rahman, 1968: 3, 19), is the funda-
mental presupposition running through the shari'a discourse and is
conventionally considered the hallmark of Islam itself.
The central predicament of the ideally egalitarian society is
that there is an inevitable degradation as the divine plan is hu-
manly grounded, an inevitable falling away from an initial approx-
imation of perfection (the ideal community of the Prophet's day).
As one element in a more general move from an original to its
supplement (Derrida, 1976), the predicament of Muslim social his-
tory is also analogous to the transit of knowledge from the singu-
lar, oral, divine, and perfect Quran, considered both the Word of
God and the ultimate source of the shari'a, to the plural, written,
humanly-constituted, flawed, and disputed version of this Truth,
which is the jurisprudence of the shari'a manuals. The relation,
and associated movement, of God to human is also that of the
Word to writing, and of equality to hierarchy. If the Word itself is
egalitarian, its interpretation is hierarchical; in being read the text
is hierarchized. In a fundamental act of power, Muslim interpreta-
tion has necessarily entailed both social-order inequalities and an
ingrained sense of progressive intellectual and moral decline in
history.
Another problem for an egalitarian society is associated with
the valuation of knowledge. This is the potential conclusion that,
as Rosenthal (1970: 2) has bluntly put it, " 'ilm [knowledge] is Is-
lam." Rosenthal observes, however, that scholars "have been hesi-
tant to accept the technical correctness of this equation." Their
hesitancy is based on more than philosophical grounds, however,
for the equation of knowledge and Islam, and thus of 'alim with
Muslim, entails exclusive and divisive hierarchical implications in
a society where knowledge has always been far from universally
accessible or socially distributed. Implicitly, however, the relation
of God to human is reproduced within the human sphere as that of
'alim to jahil.
MESSICK 647
If instruction is the avenue for acquiring the distinctive style

of intellectual discourse, the absence of such instruction means
that an individual remains, technically, in Ibn Khaldun's state of
ignorance. In lbb, children before the age of maturity and discern-
ment (both legal statuses) are known as juhhal (pl. of jahil}, liter-
ally, ignorant ones. Children are wild, animal like, not fully
human. For the scholarly, the achievement of maturity and dis-
cernment do not in and of themselves produce a change in jahil
status. Rural people, such as the claimant of the sketch, ordinary
townsmen (the 'amma), and women, all of whom did not usually
receive instruction, therefore remained, in the view of scholars, in
a quasi-childlike condition of ignorance. All are conceived of and
are still occasionally referred to as juhhal by older scholars, such
as the judge.
It is just these sorts of discerning but untutored adults who
pose the following societal contradictions: Is the community fun-
damentally egalitarian, stressing the cohesiveness of equals, or
rather, is it hierarchical, emphasizing differences, among them
levels of knowledge? Is simple faith a necessary, but insufficient
credential? Is there, in fact, an equation between knowledge and
Islam?
Addressing the problem of rural people who reportedly did
not carry out such Islamic "pillars" as prayer, fasting, and pilgrim-
age, the noted early nineteenth century Yemeni scholar/jurist
Muhammad al-Shawkani (1969: 39-40) states that such people have
the legal/moral status of people of the pre-Islamic age of igno-
rance, known as al-jahiliyya (from the word jahil). They were be-
yond the reach of both the state and the faith, and thus of the
shari'a. Townspeople, residents of state-controlled centers, repre-
sented a still more problematic category, however. While a nega-
tive conclusion concerning the imagined or actual non-Muslim con-
duct and status of populations entirely beyond the pale may have
come easily to scholars, a more troubling assessment was required
in connection with the more intimately known, uneducated urban
'am.ma, the ordinary populace. In Yemeni historical writing, which
is explicitly devoted to the lives of the "honorable ones," the
'am.ma figure only rarely as the faceless mob that rises up at junc-
tures of political disarray. According to Shawkani, these people
are mostly juhhal, and yet he notes that they are frequently obser-
vant, and willing to receive instruction (Ibid.). They are the ma-
jority, the backbone of the town-based Muslim community, and
yet, as Muslims, in the view of the scholars, they are marked by
their ignorance.
The association of knowledge and Islam also contributed to de-
fining the secondary status of all women. Beyond the well-known
shari'a-defined restrictions on women regarding such matters as
marriage and divorce, inheritance, and witnessing, there was a
more subtle social positioning that resulted from the fact that
knowledge and Islam were not only associated with each other, but
also with being male. Among Yemeni men it is commonly under-
stood that women are juhhal. In the Quran, the term daraja, al-
ready mentioned as meaning a "degree" of status difference based
on knowledge, also refers to a "degree" of difference based on be-
ing male as opposed to female.
An important articulation of the egalitarian/hierarchical con-
tradiction is contained in the principle of "collective duty" lfard
kifaya) elaborated by the early jurists. According to this doctrine,
the Muslim community as a whole is kept on a legitimate and ob-
serving basis as long as a sufficient number of individuals performs
the necessary collective duties imposed on the community by God.
Among these duties, succinctly summarized by Muhammad al-
Shafi'i (1961), are the undertaking of the funeral prayer and the
Holy War and being knowledgeable in the provisions of the shari'a.
While legitimizing a necessary form of social difference in passing,
al-Shafi'i nevertheless seeks and manages to foreground a higher
value: the identity, responsibility, and cohesiveness of the collec-
tivity. As a resolution in favor of an egalitarian principle the doc-
trine must be considered imperfect, however, in that it envisions
special status gained (or anticipated) through the mechanism of
unequally distributed ultimate reward (in the afterlife).
Shawkani (1969: 2) sought to refine the 'alim/jahil distinction.
In his discussion of what he refers to as the "two statuses" he
speaks of their respective "responsibilities." Despite the fact that
the 'alim, because of knowledge acquired, carries additional socie-
tal burdens that set him apart from the jahil, Shawkani argues
forcefully that in many important respects there are no differences
between the two categories of individuals. "The 'alim," Shawkani
writes, "is equivalent to the jahil as concerns legal and devotional
responsibilities" (Ibid.). Thus he endeavors to reassert fundamen-
tal equality, especially as regards basic Muslim obligations, while
at the same time recognizing and differentiating the "two sta-
tuses."
Witnessing4 is an example of a key doctrinal area in which a
predominant, egalitarian formula, namely, that all Muslims are by
definition persons whose legal testimony is admissible (al-mus-
limun 'udul), is subject to qualifications that open the door to the
concerns of a hierarchical society. In Nawawi's manual, there are
five general conditions listed for a witness: he (or she) must be a
Muslim, free (not slave), discerning, of "irreproachable character"
('adl), and serious. In a briefer manual by Abu Shuja' (1859) also
used in Ibb, these separate conditions are summarized in the single
requirement of 'adala (from 'adl), that is, "justness" or "probity,"
4 For recent anthropological discussions of Muslim witnessing see Rosen

(1979; 1980-81) and Geertz (1983: 190ff.); on the problematic status of written
documents as evidence, see Messick (forthcoming).
MESSICK 649
based on irreproachable character. The absence of any require-

ment bearing on knowledge or instruction is notable: the techni-
cally ignorant appear to be as good as any other witnesses. For a
potential judge, to be sure, there are knowledge requirements, but
in witnessing, the linchpin institution of legal processes, all (free,
sane) Muslims, regardless of intellectual attainments, are equally
eligible to give testimony.
Even the normative concern for what is to constitute irre-
proachable character is tempered by a sensitivity to acceptable dif-
ferences of person, time, and locale. Grave sins aside, respectable
character is actually considered contextually relative, being exhib-
ited in "one who models his conduct upon the respectable among
his contemporaries and fellow countrymen." In this Muslim ver-
sion of the doctrine of the "credible \\itness," the concern is not so
much with absolutes as with deviations from local societal or even
personal norms, which are taken as indicative of an instability of
character thought to bear on one's capacity as a truthful witness.
Discussing concrete behaviors that can put a reputation in ques-
tion, Nawawi gives a number of examples. While most of these
pertain to the common people, in one instance there is a specific
reference to jurists. This is the hypothetical case of a jurist ifaqih)
who wears a particular type of gown and raised turban, in a place
where these are not customary for jurists. Nawawi's other equally
culturally-specific examples of an individual lacking in the requi-
site seriousness are one: "who eats in public and walks there bare-
headed"; "who embraces his wife or his slave in the presence of
other persons"; "who is always telling funny stories"; or "who ha-
bitually plays chess or sings or listens to singing, or who dances for
an excessively long time." These examples are concluded, how-
ever, with the cautionary statement that "it is well to take into
consideration that these matters differ according to individuals,
circumstances and places."
Following the relatively egalitarian orientation of this initial
discussion of the qualifications of witnesses, N awawi then briefly
raises a further issue, and in doing so touches on hierarchical con-
cerns of a different order than have been discussed so far. The is-
sue in question is the occupation of the potential witness. "Base
occupations, such as blood-letting, sweeping, and tanning," Nawawi
writes, "practiced by one of high social position for whom it is un-
seemly," disqualify the individual as a witness. Although social
levels and conceptions of honor and dishonor are certainly in-
volved here, there is no crude assertion that those involved in the
"base" occupations are for that reason alone simply unqualified as
witnesses. It is rather the mismatch of social position and occupa-
tion, the lack of conformity of background with work activity that
cause a question to be posed about an individual's character. This
is clear from Nawawi's next statement: "if [such an occupation] is
customary for the person, and it had been the craft of his father,
then there is no disqualification." That truthfulness is thought to

pertain to individuals of differing statuses, insofar as they are en-
gaged in suitable activities and do not deviate from appropriate
and established personal norms, is part of a larger, distinctive con-
ception of justice as consisting of a balanced equilibrium of diver-
sity. "Injustice" (zulm), Mottahedeh (1980: 179) observes, citing
early Arabic dictionaries, is not so much oppression as "putting a
thing in a place not its own" or "transgressing the proper limit."
A. Wider Hierarchy: Further Problems of Mismatch

The brief reference to "base" occupations in the discussion on
the qualification of witnesses provides an opening to a wider field
of inequality. It is relevant to cite a Quranic text employing a ge-
neric notion of darajat, or "degrees" of ranked difference. God
says (Quran 43: 32), referring to the people of the world, "We have
apportioned among them their livelihood in the world, and we
have raised some of them above others by degrees, so that they
may take others in service." This general recognition of the social
fact of hierarchy in worldly circumstances and of God as its author
is immediately followed, however, by a powerful undercutting
qualification, which reaffirms an ultimate and countervailing egali-
tarian principle: "[But] the mercy of your Lord is better than that
which they amass."
Occupations figure importantly in textually established rules
concerning suitable marriage partners. Within the extensive dis-
cussion of marriage rules there is a subset concerned with kafa 'a,
or "equivalence" (cf. Ziadeh, 1957). Such rules about the status or
honor equivalence of marriage partners entail as their active con-
sequence a form of stratum endogamy. Profession is one of five
criteria to be taken into consideration in determining if a suitor is
an appropriate match. The other four are physical defects, free
status (as opposed to being a slave), character, and status according
to "descent" (nasab). This last criterion, descent, is dealt with in
numerous places in these shari'a manuals; it is an element of the
hierarchical context in which Islam emerged that was not fully re-
vised by communitarian principles. In this context, at the highest
level of generality, descent difference means that "a non-Arab is
not the equivalent of an Arab woman," but it can also mean that
an individual not of the Prophet Muhammad's extended "tribe" is
not appropriate for a woman of that tribe, or, more narrowly still,
that one not of the Prophet's immediate descent lines is not suited
for a woman of those lines. A variety of status honor is derived
from descent, and this is an issue in determining appropriate mar-
riages, both in general and with respect to the exemplary and spe-
cific case of individuals who were known as "descendants of the
Prophet" (sada). In Yemen and elsewhere in the Muslim world
these blood descendants of the Prophet typically have historically
MESSICK 651
represented the highest layer of society, the purest realization of

honor through lineage. In practice, in places such as lbb, strict en-
dogamy has been frequently violated among the sada themselves,
while endogamy has generally occurred on the level of the elite as
a whole considered in relation to the lower social ranks.
Occupation is a separate, but often in practice, related matter.
Nawawi's statement (quoted in Part I) on marriage equivalence ac-
cording to profession provides a concrete image of an entire
stepped hierarchy structured in occupational terms alone. Mar-
riage mismatches here involve a man of a lower rank seeking the
hand of a woman whose father's occupation places her on a higher
rung. The resultant social hierarchical steps run from a bottom oc-
cupational level (sweeper, bloodletter, watchman, shepherd, bath-
house operator) through the level of the tailors to the level of the
merchant and cloth seller, and finally to the highest level, that of
the scholar and judge.
Still another, analytically separable sort of ranking underpins
the Muslim philanthropic institutions, which are also treated in
the shari'a manuals. In this doctrinal area, there is a presumption
that the social world is composed of a spectrum of levels of wealth.
God differentially "apportions" to individuals their "livelihood in
the world." The chapters on paying the tithe concern one end of
the relation-those who have the property to be taxed or the
wealth to give as charity. Related chapters concerning philan-
thropic acts and implying wealth deal with such unilateral disposi-
tions as gifts and the creation of family foundations and charitable
trusts. And a separate chapter deals with the other end of the re-
lation, the legitimate recipients of such official distributions and
private charity. The poor and the indigent, separately defined sta-
tuses in this jurisprudence, are among the categories of individuals
earmarked for the appropriate receipt of alms.
While wealth and social honor are not coterminus in this sys-
tem (cf. Weber, 1946), as wealth alone is of ambiguous social value,
there is nevertheless a connection between wealth and other types
of status rankings. In the definition of the "poor," for example,
the concern with mismatches of status and occupation is restated,
with special reference to scholarly endeavors. "One may be legally
called poor," Nawawi states,
... even though [one is] able to gain a living by some work
not suitable for one. Thus a learned man may be called
poor though able, strictly speaking, to provide for his own
needs by exercising some trade that would prevent him
continuing his studies.
All the strands of rank discussed thus far-knowledge/igno-
rance, gender, marriage equivalence, descent, occupation, and
wealth-concern only the mainstream population of the legally-
imaged Muslim community. In addition there are two other, still
wider, social categorizations that entail further hierarchical impli-
cations and that may be combined with some of the already dis-
cussed ranking issues. These global categories are "free" as op-
posed to "slave" and "Muslim" as opposed to "non-Muslim"
statuses; both are covered in manual chapters. Slavery was not
highly developed in Yemen, but a large Jewish population made
the shari'a sections on the "non-Muslim" extremely relevant. As
is characteristic of all status systems (according to Weber, 1946),
there is detailed consciousness of all of these complexly interre-
lated hierarchical strands. Some individuals, depending upon their
divine allotments in life and their strands of identity, are "raised
up" by "degrees," and a layered quality of social levels, known as
tabaqat (e.g., in Ibn Khaldun, but also in Yemeni conceptions) is
the envisioned social product.
B. Egalitarian Crosscurrents
Aside from the general, and constant, reiteration of such po-
tent egalitarian categories as the believers, the Muslims, and the
community, not only in the first quarter of the manuals devoted to
Muslim ritual but throughout the other chapters as well, there are
particular doctrinal areas where egalitarian themes are further de-
veloped and seem to predominate. Perhaps the most important,
since it has implications for more than half of the shari'a's actual
contents, concerns the capacity to contract. If such features as
technical "ignorance" (jahil status), or "base" occupation, or non-
noble descent, or gender, etc., had been taken to constitute an im-
pediment in capacity to contract, social life would have been heav-
ily impaired, as significant blocks of individuals, including the
overwhelming majority of the population, would be unable to
make legal acts. In this dimension of the jurisprudence, however,
there is a strong egalitarian emphasis based on the central but
largely implicit construct of the individual. "Contractualism," ac-
cording to Hodgson (1974, vol. 2: 352), through which "ascriptive
status was minimized, at least in principle,"5 is considered the
characteristic thrust of the shari'a, and of Islamic society in gen-
eral.6
Being an adult and of sound mind (slavery is a special case)
are all that are required of an individual to enter into a binding
shari'a contract. The "mind" that enables the ordinary, sane adult,
male or female, to contract may not be fully rational in the devel-
oped, reasoning sense defining the status of the educated, but it is
taken to be rational enough for the routine conduct of affairs. As
a form of necessary knowledge, common sense may be an imper-
fect rendering of reality, but for the purposes of legal undertakings
5 Hodgson says elsewhere (1974: 348) that "there were traces of inequal-
ity both in shari'a and in custom" (emphasis added).
6 Contractual and related idioms (exchange, bargaining, negotiation) have
figured prominently in recent anthropological accounts concerned with Mo-
rocco (e.g., Geertz, 1979; Rosen, 1979; 1984).
MESSICK 653
it is considered sufficiently accurate. An egalitarian principle

slices through the structures of difference.
Another way this may be understood, of course, is that far
from serving to reduce or counteract hierarchical tendencies found
elsewhere in the jurisprudence, the egalitarian/individualistic prin-
ciples underpinning contractual capacity worked to mask, and indi-
rectly support, actual inequalities between the parties engaging in
the contract in much the same manner, for example, as similar as-
sumptions in the capitalist wage-labor contract.
The same sort of individualism is also behind unilateral dispo-
sitions in the shari'a. Thus making a will is an act radically open
to all, including non-Muslims (but not slaves). It is a capacity,
Nawawi states, "accorded by the shari'a to everyone, whether Mus-
lim or not, without distinction of sex, [in as much as the person is]
adult, sane, free." Unstated here is the fact that making a testa-
mentary disposition implies having an estate to dispose of: the cir-
cumstances that are assumed and addressed are those of the few, a
wealthy elite.
C Hierarchy Resisted, Hierarchy Affirmed: Court Procedure

Hierarchical mismatches in court drew particular attention
from the jurists. The manual sections on legal procedures before
the shari'a court judge represent both an acknowledgment of the
existence of social differences and a determined effort to reduce
their impact, at least in this specific institutional setting. The key
principle all manuals articulate is that in this forum the judge
must treat disputants equally. Immediately, within the same
phrase articulating the rule of "equality" (taswiya), however, a
major qualification is stated. Unequal, preferential treatment by
the judge is appropriate if the two disputants are a Muslim and a
dhimmi, a "protected" person of the Book, that is, a Jew or a
Christian. The Muslim can be legitimately raised above the dimmi
in the attentions of the judge.
One manual says that the required egalitarian treatment of
Muslim disputants is to be embodied in three things: space, word,
and regard. The disputants should be seated together, in the same
row before the judge; they should be addressed in an equivalent
manner and be given the same opportunity to speak and be heard;
and the judge should not look at one of the parties and not at the
other. Nawawi adds that the judge should treat the two parties
equally in such detailed matters as standing up (or not) when one
of them enters the court and in returning greetings. Judges are
specifically forbidden to favor one side by providing suggestions as
to how to make a claim or word testimony, or to formally hear one
party without the other being present.
A further, recommended practice for the judge is couched in
the language of "weak" (da 'if) and "strong" (qawi), a social vocab-
ulary used in Yemen and elsewhere to characterize not physical,

but rather status or honor differences between claimants. It is
thus suggested that the judge advance or give precedence to the
claim of the weaker of two individuals competing to be the initia-
tor of an adversarial proceeding. Directives sent to a judge in the
early centuries of Islam advocate similar measures. Both equal
treatment and advancing the cause of the weaker party are sum-
marized in one version: "Act impartially between people in your
audience-room and before you, so that the man of noble status
(sharif) be not greedy for your partiality and the man of inferior
status (da'if [lit. "weak"]) despair of justice from you." Another,
probably earlier letter says, "admit the man of inferior status
(da 'if) so that his tongue may be loosened and his heart embold-
ened" (Serjeant, 1984: 66, 69).
This idiom of weak and strong also figures in one of the manu-
als in connection with a discussion of the physical place where a
judge should hold court. This place should be in the center of the
town and well known, the jurist writes, so that both "the local per-
son and the outsider and the strong and the weak" will have ac-
cess. To facilitate this open access, the judge should post no guards
at the outside door to block or regulate entrance. To counterbal-
ance the gender-specific inequalities that might constrain the be-
havior of women seeking access to the judge, special rules are es-
tablished. In one manual it is said that the judge should give
priority to hearing women's cases, while another recommends that
the judge set aside a separate session for women's claims.
All such measures to reduce hierarchical influences focus on
the relationship between the parties in a dispute. It is in this rela-
tion that a mismatch of status is considered especially problematic
and where formal equality helps create the aura of judicial impar-
tiality that legitimizes judgments. Some of the apparent clarity of
the strategies to bring about the desired "equality" begins to dis-
solve, however, as one reads further in the more expansive com-
mentary literature. One commentator says, "the judge should seat
the two parties before him (lit., 'in his hands'), if they are
equivalent in honor (sharaf)." This ambiguous statement is only
partially resolved as the commentator goes on to give as an impor-
tant exception the case of a Muslim and a dhimmi appearing to-
gether as adversaries. A commentator in another manual follows
the rule of "equivalence between the two parties," with this note:
"except for the difference between the 'high' (raj"i', lit., 'raised up')
and the 'low' (wadi'), or between the believer and the sinner
ifasiq), due to his [the judge's] respect for Islam. The privileging
of the believer over the [Muslim] sinner is not what is at issue in
the principle of equivalence in the judicial session." Issues of high
and low status are simply reinserted in the discourse, while in sep-
arating the righteous from the sinners, difficult problems, similar
MESSICK 655
to those previously discussed in connection with identifying the

just witnesses, are raised.
If hierarchy in the relationship between the claimants seems
to subtly slip back in despite the strong egalitarian principle ad-
vanced to control it, another form of hierarchical relation in the
courtroom remains unexamined, unquestioned. This is the rela-
tionship between the judge and the claimants, evoked in the
sketch and then discussed as the relation of 'alim and jahil. One
manual recommends that the judge have other local scholars pres-
ent at his court and that he consult with them before arriving at a
decision. While the forum is to proceed on the basis of an egalita-
rian attitude regarding the claimants, a necessary but unstated
form of hierarchy is nevertheless essential to its overall organiza-
tion.
D. Kissing Hands and Knees

While recognizing the thoroughly Muslim, and at times and
places egalitarian character of Yemeni society, western students of
Yemeni social structure (e.g., Gerholm, 1977) have also debated
whether "caste" might be the appropriate designation for some of
the sorts of hierarchical relations found in the highlands. 7
Yemenis themselves have understood their own social order with
both communitarian and a diversity of "layer cake" type concep-
tions, the latter replete with elaborated social categories and asso-
ciated strata terminology. A modicum of social mobility has al-
ways been part of the system, however. Achieved status could be
attained through the acquisition of either knowledge or wealth.
Limited possibilities of advancement along both avenues serve, in
practice, to defuse some of the outward rigidity of the social ranks.
The social order is, in any case, far more flexible and complex
than the indigenous "layer cake" type of theory would have. For
example, while descent groups of descendants of the Prophet,
scholars, and tribal elites seem uniform and enduring, there has al-
ways been considerable variation among individuals, sloughing off
of unsuccessful segments, and long-term processes of rise and fall
among the "leading families."
On the level of interpersonal relations, status differences are
played out as in the posturing sketched in the encounter between
the judge and the self-described weak villager. The term haiba,
meaning "awe," "fear," or "respect," refers to the sensations
aroused in one individual by another, and to the social atmosphere
that is found in interactions between superiors and inferiors. Kiss-
ing the hand and knee is the correct gesture of status behavior
7 For reasons of space, I have not attempted here to discuss such ongoing
transformations as the new egalitarian category of the "citizen," or the dissolu-
tion of old status relations and the emergence of class relations. These are as-
sociated with the new legislated form of the shari'a and the new character of
the Yemeni state.
when a subordinate confronts the haiba not only of scholarly

judges, but also the differently constituted haibas of teachers,
imams, Sufi mystics, descendants of the Prophet, tribal shaykhs,
powerful landlords, and fathers. There are structural analogies
linking these several haibas, but in another sense each represents
a separate strand of hierarchical identity and a distinct type of en-
counter. A scholar's haiba is specific to his knowledge: it is the
haiba of the text the scholar embodies and interprets.
Scholars, such as judges, consciously strove to cultivate their
haiba by such means as their attire and demeanor, both of which
receive comment in the legal literature. A proverb, "a tribesman's
brain is in his eyes," was cited to me by a judge to explain why he
had to present himself in public as an imposingly attired figure.
Shawkani (1969: 29), speaking critically of abuses in the early nine-
teenth century, however, mentions the type of judge who wears a
"turban like a tower." But he nevertheless refers in admiration to
one of the noted judges of his era saying, "his haiba was great in
[people's] hearts" (1348 A.H.II: 333). Sternness and distance in
comportment, learned as part of a scholar's formative disciplining,
are also required. The haiba of a judge served positively to create
the properly serious atmosphere of the tribunal. But the haiba im-
balances of opposing claimants had to be counteracted to insure
that the "truth" would emerge. The "equalizing" procedures func-
tioned, in part, to reduce haiba effects. Thus the "weak" man's
claim should be given preferential treatment so that "his tongue
may be loosened and his heart emboldened."
A South Arabian proverb speaks, however, to the other side of
the haiba behavior of respectful kissing: "a kiss on the hand
means hatred of it." The basic gesture of respect comprises a si-
lent hostility. For those of subordinate status who live the ambi-
guity of inclusion and exclusion, of equality as members of the
community of Muslims and inequality with respect to the relations
of hierarchy among the same Muslims, an unvoiced resistance is
embedded in the very recognition of stature. While haiba behav-
iors underline the conscious, calculated and constructed quality of
status interaction in the view of the elite, they also illustrate the
ambivalent combination of rejection couched in acquiescence on
the part of the subordinate.
VI. THE GROUND OF RESISTANCE

Among the subordinate, the expected sorts of critiques are di-
rected at individuals and processes, at specific or stereotypical
judges or scholars, and at particular negative personal experiences
with the courts. To an important extent, however, the jurispru-
dence provides the terms of such critiques in its rules for how
things should be, including those (not referred to above) against
such frequently objected to practices as corruption, conniving, de-
MESSICK 657
laying, etc. What is significant is that all such critiques fall within
an area of the shari'a already open to questioning, even specifically
constituted for critique, while another, deeper level of the shari'a
lies beyond this, unquestioned, unquestionable. At this level,
where shari'a principle is virtually indistinguishable from consen-
sual and collectively held common knowledge, are located, for ex-
ample, the largely implicit construct of the individual, the general
social form of the contract, the recognition of hierarchy and the
egalitarian concern for mismatches, and assumptions concerning
the existence and the importance of knowledge. The position of
scholars and others of high status vis-a-vis the subordinate is im-
plicitly fused to the entire dialectic of the God to human relation,
especially as this relation is replicated within the social order and
throughout history. This is the shari'a as a societal discourse that
saturates and is saturated by a given reality, that articulates the
nature of a particular world, that is the possibility of thought itself
(Williams, 1977). As Gramsci said of bourgeois ideas in workers'
minds, this deeper level of the shari'a discourse is "waiting in am-
bush"8 for those who would attempt to carry out social critique
and reform.
What I have focused on in my reading of the applied manuals
concerns a further impediment to resistance: the polyvocality of
the texts themselves. The egalitarian/hierarchical theme I have
examined illustrates that, as an ideology, the shari'a is a kind of
moving target. Shifting and elusive in the social image it advo-
cates, it clouds its connections to the interests it might serve. As it
encompasses and provides an open space for intellectual debates
and rifts, it enters into the social fabric, taking on the diversity of
the scholarly individuals who have embodied, transmitted, and in-
terpreted it. The openness of the text is that of a hollow center
that swallows up diverse points of view. Despite its own internal
positivism, viz., a manual definition of an element of "text" (nass)
as "that which carries only one meaning," the further and un-
stated hegemonic strength of the discourse is its textual, and lived
heteroglossia (Bakhtin, 1981). Subverting and dissimulating itself
at every doctrinal turn, the discourse is effectively protected from
sustained critique.
From the perspective of the 'amma, the only discourse there is
appears mightily fortified with impenetrable defenses. Their ulti-
mate assent, despite ventings of resistance, is inevitable as the dis-
course created and carried by jurists is confused with and assimi-
lated to the divine plan and a naturalized "reality." But the
further problem of the ordinary populace, those who most directly
live the contradictions of the shari'a, is that their world is forcibly
embraced in the discourse, while at the same time, in the same
8 Quoted in Boggs (1984: 167).

process, it is silenced. 9 Representation is a fundamental act of

power as it acts to deprive those represented of their voices. Their
resistance, their ideological "fighting it out," does not touch the
representations themselves: the contours of reality are not easily
called into question. In the authoritative definition of the ordinary
characteristics of ignorance, common sense, dialect, etc., a decisive
level of hegemonic control is asserted. Constituted as objects, ordi-
nary people are excluded from the discourse in the very moment
of their incorporation. "Only a few men must know the law...."
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Q Taylor & Francis
[7]
Legal Discourse and Political Intolerance: The
Ideology of Clear and Present Danger
Mark Kessler
Using insights from pos!Slrucmralistliterary theories, writings on ideol-

ogy, and theories of practice, this article develops an imerprelive perspective
on polilical!olerance for nonconformity. Viewing Supreme Courl expression
doctrine as ideology, il suggests !hal legal discourse, in combination with
imersecling social, political, and scientific discourses, socially constructs
political difference and constilules a political spectrum. Research indicating
differences in tolerance between elites and !he public is interpreted as arising
from dual ideological strands within legal discourse !hal are appropriated
depending on one's location in social relations. The theoretical approach is
used lo situate law and legal insli!u!ions in American cuhure and extend pre-
vious work on legal doctrine as ideology emerging from the Critical Legal
Studies movement.
A publi< •<hool'• deci•ion in Poland, Maine, to prohibit

the recitation of a prayer at graduation ceremonies motivated
several community residents to write letters to the local news-
paper's editor. Although the tone of the letters varied and a few
expressed support for the decision, one in particular seemed to
capture the spirit of the opposition. Entitled, "Aliens Are Free
To Go Elsewhere" (Lewiston Sun-journal, 26June 199l:p. 5, col.
1), it voiced outrage that "95 percent of the US populational-
lows the other 5 percent to tell us how to interpret our Consti-
tution and live our lives." The letter proclaims that "this coun-
try was established by white, Anglo-Saxon, Protestant
Christians as a Christian nation" with a Constitution and Bill of
Rights intended "to protect the church from the state" rather
than "to protect the state from the church." The author's read-
ing of the Constitution's First Amendment suggests that "the
forbidding of prayers, Bible reading and the singing of Christ-
mas carols in the public schools is a violation of the First
Amendment." The letter closes by offering advice to those who
Address correspondence !o Mark Kessler, Department of Political Science, Bales Col-

lege, Lewistown, ME 04240.
560 Legal Discourse and Political Intolerance
disagree with this reading: "If the aliens in our midst are of-
fended by Christianity, they are free to go elsewhere."
Although perhaps stated in a more extreme and colorful
way than most of the letters in opposition to the school's deci-
sion, the sentiment that "aliens in our midst" who disagree
with majority views should be silenced or "go elsewhere" par-
allels the findings of a large body of social science attitude re-
search on political tolerance for nonconformity. Beginning
with the publication of Stouffer's (1955) study of public atti-
tudes toward communists, socialists, and atheists, this research
portrays a large segment of the American polity as unwilling to
permit those holding unpopular social and political views to ex-
press positions in public or fill various roles in society, espe-
cially as educators of the young (Prothro & Grigg 1960; Mc-
Closky 1964; Sullivan et al. 1982; McClosky & Brill 1983).
Much of this research also portrays the public's responses
to questions about civil liberties, questions that tap what the
researchers identify as "fundamental principles of democratic
politics" (Prothro & Grigg 1960) as inconsistent and contradic-
tory. The public demonstrates a broad consensus on abstract
formulations of democratic principles-such as the desirability
of majority rule and the necessity to protect minority rights.
But the consensus dissipates when questions are asked apply-
ing these abstract notions to specific nonconformist groups or
positions (Prothro & Grigg 1960; McClosky 1964; Sullivan et
al. 1982; McClosky & Brill 1983). These same studies find that
political elites, the most active and involved members of the
polity, are better able to apply abstract principles to concrete
situations (but see Sullivan et al. 1982; Gibson & Bingham
1985; Shamir 1991). Although some of the research (Davis
1975; Lawrence 1976; Nunn et al. 1978) suggests that the pub-
lic's tolerance for nonconformity has increased since Stouffer's
study, recent research continues to show differences in toler-
ance between citizens and political elites (McClosky & Brill
1983), with substantial numbers of the non-elite public expres-
sing intolerance toward groups with whom they disagree or dis-
like (Sullivan et al. 1982).
Appearing at about the same time as Stouffer's study of tol-
erance, research on the public's level of political knowledge
and involvement reported that large segments of the American
polity were uninvolved, alarmingly uninformed about politics
and public policy, and generally apathetic (e.g., Berelson et al.
1954). Combined with the emerging portrait of an intolerant
public, these findings produced efforts by students of American
politics to revise classical democratic theory (e.g., Dahl 1961;
Key 1961). Reflecting what Bachrach (1967) calls a "disen-
chantment with the common man," revisionist theory, or
"democratic elitism," no longer assumes that a healthy and sta-
Kessler 561
ble democracy requires general agreement among the public

on fundamental democratic principles and rules of the game.
Further, revisionist theory abandons the assumption that an ef-
fective democracy requires an active, involved, and engaged
citizenry. Indeed, some are reassured by the finding that the
segment of the public most likely to hold undemocratic views is
the segment least likely to vote or otherwise participate in poli-
tics (Prothro & Grigg 1960). As McClosky (1964:376) puts it:
"Democratic viability is, to begin with, saved by the fact that
those who are most confused about democratic ideas are also
likely to be politically apathetic and without significant influ-
ence. Their role in the nation's decision process is so small that
their 'misguided' opinions or non-opinions have little practical
consequence for stability."
According to this view, then, it is "the articulate classes
rather than the public who serve as the major repositories of
the public conscience and as the carrier of the Creed. Respon-
sibilities for keeping the system going, hence, falls most heavily
upon them" (ibid., p. 374). The "irony of democracy," as Dye
and Ziegler (1987) refer to it, is that "the subversion of demo-
cratic values by an antidemocratic public is prevented by elite
control of the government and by the apathy of the people"
(Nunn et al. 1978:155). 1
According to much of the tolerance research, differences
between non-elite and elite populations in tolerance are ex-
plained by varying life experiences, intellectual capabilities,
and skills. The public's cognitive inconsistency-an inability to
apply abstract principles to concrete situations-is a function of
individual deficiencies, especially in education, socialization,
and the capacity to learn libertarian norms. McClosky and Brill
(1983:243), for example, apply a "social learning model" to
their findings and argue that "however well-intentioned the av-
erage citizen may be, it is still necessary to learn libertarian prin-
ciples in order to embrace them. Learning libertarian norms, as
they apply to actual (and often puzzling) cases requires not
only motivation, but a measure of knowledge, enlightenment,
and openness to alternative modes of thought and conduct that
are not often found among the mass public." Elites, on the
other hand, "are better situated to learn libertarian norms."
According to McClosky and Brill, "compared with the mass
public," elites "are substantially better equipped. If they have
not worked their way through the arguments of the Supreme
Court justices and constitutional lawyers on questions of . . .
I In a recent study of political tolerance in Israel, Shamir (1991:1018) writes that
the "elitist theory of democracy is still the most common frame of reference in the
study of political tolerance .... Basically the picture obtained from the classical Ameri-
can survey studies in the I 950s and I 960s-the basis on which elitist theory was formu-
lated-is widely accepted, as are the conclusions drawn from it."
speech ... they have at least been exposed to the conclusions

drawn from these arguments. They are, in short, more likely to
know what the norms are even if they do not fully understand
the route by which the norms are arrived at."
This article develops an interpretive perspective on polit-
ical tolerance by examining the context of institutions, their
practices, and the discourses they develop (e.g., Silbey 1985;
Silbey & Sarat 1987; Rabinow & Sullivan 1987; Greenhouse
1988; Harrington & Yngvesson 1990). An interpretive ap-
proach differs in several fundamental ways from extant attitude
approaches to political tolerance, asking different questions
that are guided by different presuppositions. In the most gen-
eral sense, an interpretive perspective moves from an emphasis
on individual "attitudes"-attitudes that tolerance research
often views as "preferences" freely chosen-to an examination
of the cultural materials that constrain "preferences" and con-
struct expectations (Brigham 1990). Rather than treat the
"norms" discussed in "social learning models" of tolerance as
given, an interpretive perspective asks where norms originate,
how they are inscribed in the categorical distinctions character-
izing cultural materials, and if or how they are culturally signifi-
cant. In particular, this approach interprets the cultural signifi-
cance of norms embedded in social and linguistic constructions
of difference. Further, as Greenhouse (1988:688) explains,
"any interpretivist stance implies the importance of what an-
thropologists call 'difference.' This term refers to the social and
cultural processes by which things (genders, races, individuals,
nations, and so on) come to be recognizable as differentiable."
My focus is the language employed in the Supreme Court's
opinions on political expression in the aftermath of World War
I. Employing insights from poststructuralist literary theories,
writings on ideology, and theories of practice, I examine how
legal discourse regarding political expression, combined with
other, overlapping and intersecting discourses, structures per-
ceptions of the American political spectrum. Borrowing from
the work of scholars associated with the Critical Legal Studies
movement (for example, Kelman 1987; Fitzpatrick & Hunt
1987; Hutchinson 1989; Kairys 1990), my perspective empha-
sizes contradictions between two strands within First Amend-
ment discourse in Supreme Court opinions. The first strand of
legal discourse-manifested in the Supreme Court's "clear and
present danger" doctrine and its application in specific cases-
distinguishes between the value of individual freedom and a so-
cial interest in restricting freedom necessary to protect commu-
nal security. The Court seeks to accommodate these fundamen-
tally contradictory values by balancing them, protecting free
expression except when speech verges on dangerous action, a
circumstance assumed to be rare.
Kessler 563
This relatively libertarian approach to free expression is un-

dercut by a second strand oflegal discourse in which the Court
discusses the attribute of "dangerousness." By defining the
limits of protected speech in terms of the speaker's "danger-
ousness," the Court permits groups, individuals, and catego-
ries of expression constructed as "dangerous" in other social,
political, and scientific discourses to be considered in a similar
manner with respect to speech. Consequently, the intertextual
relations between distinctions in legal discourse and similar
distinctions emanating from other discourses--discourses cir-
culating simultaneously that sought to define the attributes of
an "American"-are interpreted by the Court to construct
political difference, constitute a spectrum of political speech,
and reinforce intolerance. The political spectrum thus consti-
tuted by the Supreme Court after World War I relegated ex-
pression that fell outside an "acceptable" mainstream to the
status of "foreign" or "un-American," paralleling the view ex-
pressed by the writer of the letter with which I began this arti-
cle that nonconformists are "aliens in our midst" who should
be silenced.
To illustrate how this theoretical framework may help us
move beyond work in Critical Legal Studies, I theorize why the
different strands of free speech doctrine are appropriated by
elite and non-elite populations-the key distinction in extant
tolerance research. For example, those who are located in dose
proximity to the means of coercive force--elites-may focus on
the libertarian strand in free speech discourse, knowing that
they control the resources necessary to eradicate any immedi-
ate threats. In contrast, those who are located furthest from the
means of coercive force, non-elites, focus on the second
strand-the strand portraying threats to community-and are
less tolerant of those deemed dangerous. Lacking control of
resources, non-elites perceive danger from ideas, individuals,
and groups posing an immediate threat to cherished values and
ways oflife.
Legal Ideology in Practice Theory

In recent years, a growing body of research and writing on
law examines the ideological effects of legal practices, institu-
tions, and doctrines. 2 Although the concept of ideology may be
understood in various ways (Geertz 1973; Sumner 1979; Hunt
2 This project has benefited from its interdisciplinary character, with major con-
tributions emerging from the work of historians (e.g., Thompson 1975; Hay et al. 1975;
Genovese 1976), social scientists (e.g., Legal Studies Forum 1985; Brigham 1987a,
1987b; Bumiller 1988; Law&: Society Review 1988; Merry 1990),legal scholars (e.g.,
Klare 1978; Hunt 1985; Fitzpatrick&: Hunt 1987; Hutchinson 1989; Kairys 1990), and
neo-Marxist scholars seeking to position law in broader theories of the state (e.g., Jes-
sop 1980; Beirne&: Quinney 1982; Collins 1982; Sugarman 1983).
1985), much of the most useful recent work derives from theo-
ries ofpractice (Bourdieu 1977; Ortner 1984; Coombe 1989).8
Practice theory focuses attention on relationships between the
action and interaction of"agents," "subjects," or "actors" and
the systemic or structural forces that disseminate social and
cultural material. A crucial assumption of practice theory is that
human agents' practices play an important role in producing
and reproducing the structural forces that comprise a social
system while simultaneously being shaped by these forces. 4
Marxist writings have influenced some strands of practice the-
ory by suggesting that the most significant forms of action and
interaction for purposes of study-those that contribute most
significantly to understanding a given society in a particular
historical moment-occur in asymmetrical social relations (Ort-
ner 1984:147).
Practice theory seeks to avoid the assumption from classical
Marxist accounts that ideology is "false consciousness"-a set
of ideas imposed by a dominant class and accepted by
subordinate classes whose "real" interests are compromised.
Ideology as false consciousness separates ideas from practice,
whereas practice theory views ideology as an integral part of all
social practices (Sumner 1979; Merry 1986). Indeed, ideologies
are viewed as constitutive of social relations and practices (e.g.,
Klare 1979; Gordon 1984; Hunt 1986; Brigham 1987a, 1987b;
Harrington & Merry 1988). As Merry (1986:254) argues, "ide-
ology is constitutive in that ideas about an event or relationship
define that activity, much as the rules about a game define a
move or a victory in the game."5
Legal discourse's potential to constitute social practices de-
pends on its ability to distance itself from the social relations
s Practice theory developed, in part, as a reaction to the formalism of structural·
ism in such disciplines as linguistics and anthropology. It seeks to transcend tensions
between structural and subjectivist strains in social theory (Giddens 1979; Coombe
1989).
4 As Ortner ( 1984: 146) suggests, many of those employing practice theory "share
a view that the 'system' does in fact have very powerful, even 'determining' effect upon
human action and the shape of events. This interest in the study of action and interac-
tion is thus not a matter of denying or minimizing this point, but expresses rather an
urgent need to understand where 'the system' comes from-how it is produced and
reproduced, and how it may have changed in the past or be changed in the future."
5 Law is but one of several relatively autonomous "fields" of cultural production
(Bourdieu 1977) that, within the constraints of material relations, constitutes social re-
lations and practices while simultaneously being shaped or created by social life. Law is
comprised of "structures of knowledges and reasonings" that are "a way of talking
about actions and relationships"-a way of talking that emphasizes some meanings and
silences others (Burton 8c Carlen 1979:8; Merry 1990:9). As such, law is a discourse in
the sense in which Foucault (1980) uses the term which, among other things, consti-
tutes understandings "about good and bad states of society" (Humphreys 1985). Such
discourses emerge from social institutions possessing considerable power, reflecting
social relations and the distribution of power. As Bove (1990:58) argues, discourses are
"functions of power: they distribute the effects of power. They are power's relays
throughout the modern social system."
Kessler 565
from which it emerges. Legal decisionmakers accomplish this

separation in part by employing in their discourse what Kairys
(1990) calls "the myth of legal reasoning." Although legal
cases often involve significant social, economic, and political
conflicts and decisions are determined, at least in part, by per-
sonal, political, and institutional factors, legal outcomes "are
expressed and justified and largely perceived by judges them-
selves, in terms of 'facts' that have been objectively determined
and 'law' that has been objectively and rationally 'found' and
'applied'" (ibid., p. 4).
Bourdieu (1987) suggests that legal discourse's power also
resides in the way that law codifies, formalizes, and rationalizes
social experience. Contingencies of specific situations are
treated in legal discourse as prototypes for later decisions, as
part of the rules that may be appropriated and appealed to in
justifying future results. These processes mystify law's power,
transforming the arbitrary and cultural features of social life
into that which is considered natural, inevitable, and perhaps
most important, universal-"the quintessential carrier of sym-
bolic effectiveness" (p. 845).
It is this transformation of the cultural to the natural and
universal that gives law and legal discourse its hegemonic qual-
ity. Hegemony, a concept developed by Gramsci (1971), refers
to processes by which dominant groups obtain or negotiate the
acquiescence of subordinates without the explicit use of force.
As Sarat and Silbey ( 1988: 139) explain, the concept of cultural
hegemony "emphasizes the notion of imposition and legitima-
tion of particular norms, that is, of political rule." Legal he-
gemony "implies routine acquiescence with norms and rules in
which the threat of organized force remains in the back-
ground." Hegemony obtains when "law is embedded in ...
relations and practices so much so that it is virtually invisible to
those involved. It is this invisibility, this taken-for-grantedness,
that makes legality and legal forms powerful."
Viewing law as discourse directs attention to the language
of law, legal reasoning, and the rules and doctrine created by
courts. This perspective recognizes that the concepts created,
employed, and elaborated by courts are crucial for understand-
ing law's political significance (Brigham 1978; O'Neill 1981;
Harris 1982; Goodrich 1986, 1987). Law as discourse empha-
sizes "how law institutes expectations of what is legitimate and
illegitimate behavior, what is acceptable and unacceptable,
what is criminal and legal, what is rational and irrational, what
is natural and unnatural" (Eisenstein 1988:43). As such, study-
ing legal discourse requires the interpretation of laws and lin-
guistic constructions "as they operate as symbols for what is
legal, honorable, natural, objective, and so on" (ibid.). Indeed,
courts are appropriately viewed as sites where opposing parties
with competing visions engage in what Connolly (1983) calls

"conceptual contests"-contests over the meaning of crucial
linguistic constructions. The result of these struggles not only
plays a large role in determining the eventual outcome of spe-
cific cases but also helps constitute social and politicallife.s
Legal discourse simplifies complex social situations and re-
lationships by focusing on a few of their characteristics and
comparing them with governing rules and precedents that may
apply (Minow 1990). It tends to cast all problems with which it
deals in stark "either/or" or "win/lose" terms. The defendant
is guilty or innocent; the law is constitutional or violates the
Constitution. In making these determinations, legal discourse
inevitably creates classifications, categories, and taxonomies,
and seeks to indicate the criteria to be employed (or that crite-
ria are indeed employed) in sorting persons, things, and situa-
tions into appropriate groupings. 7
Categories and the norms to which they are compared do
not arise naturally or randomly, but rather reflect social rela-
tions and power. Unstated norms, as Bourdieu (1987) suggests,
are consistent with the values, interests, and "mode of living"
shared by dominant groups. "Law consecrates the established
order," according to Bourdieu (1987:838), "by consecrating
the vision of that order which is held by the State. " 8 Dominant
norms-norms that "are produced by those with the power to
name and the power to treat themselves as the norm" (Minow
6 Connolly (1983: 180) writes that "the concepts of politics do not simply provide
a lens through which to observe a process that is independent of them .... [T]hey are
themselves part of political life-they help to constitute it, to·make it what it is."
7 Categories in legal discourse distinguish one thing from another-for example,
public from private spheres of social life (Taub & Schneider 1990), victims from
nonvictims of discrimination (Bumiller 1988), or mentally competent from incompe-
tent persons (Minow 1990). Such classifications in legal discourse, like those in other
discourses, "reconstruct the social field, catalyzing two previously latent groupings and
... establishing a border between them" (Lincoln 1989: 10). In other words, classifica-
tions and the borders they construct serve to create difference (Minow 1990). Sorting a
person, thing, or relationship into one category of a classification suggests that there is
an inherent difference between it and those items that are sorted into other categories.
Difference typically is described and discussed in legal discourse in terms of the person,
thing, or characteristic deemed to be "different," creating and then leaving unwritten
and unspoken the norm to which all such cases are compared (ibid., p. 56). Figurative
language, such as the metaphor, often plays a significant role in elaborating difference
constructed in discourse and structures the process by which agents interpret the world
(Geertz 1973; Lakoff &Johnson 1980; Lakoff 1987; McLaughlin 1990).
8 Bourdieu (1987) suggests that the ·~uridical field" is relatively autonomous
from the state and other fields of cultural production. Judicial elites, like authoritative
decisionmakers in other fields, engage in practices that are strongly shaped by "habi-
tus"-a system of internalized dispositions, traditions, and habits that mediate between
social structures and practices, while being shaped by structures and practices. Judicial
elites, according to Bourdieu (p. 842), have a "closeness of interests" and "parallelism
of habitus" with "the holders of worldly power, whether political or economic." The
shared habitus, "arising from similar family and educational backgrounds, foster kin-
dred world-views." As a result, "the choices which those in the legal realm must con-
stantly make between differing or antagonistic interests, values, and world views are
unlikely to disadvantage the dominant forces."
Kessler 567
1990: Ill )-are made to appear universal and natural by a dis-

course that seems rational and neutral. Conversely, legal dis-
course constructs deviance through the implicit comparison of
categories signifying difference to the unstated norm. Legal
discourse imposes "a representation of normalcy according to
which different practices tend to appear deviant, anomalous, in-
deed abnormal and pathological" (Bourdieu 1987:847).
This view gains support in the work of deconstructionist
theorists, like Derrida (1981), who see in Western thought the
proliferation of binary oppositions. Oppositional categories-
such as man/woman, good/evil, and self/other-impose a hier-
archical ranking, privileging one pole of the opposition over
the other. 9 According to Derrida (p. viii), "polar opposites do
not ... stand as independent and equal entities. The second
term in each pair is considered the negative, corrupt, undesir-
able version of the first, a fall away from it." Tracing the origin
of the word "category," Bourdieu (1985:729) echoes this
theme, noting that "it is no accident that the verb kategoresthai,
which gives us our 'categories' ... means to accuse publicly." 10
"Conceptual contests," then, are enormously important po-
litically. At stake are the terms under which social life is under-
stood and made meaningful. As Bourdieu (ibid.) puts it,
"knowledge of the social world and, more precisely, the catego-
ries that make it possible, are the stakes par excellence of political
struggle, the inextricably theoretical and practical struggle for
the power to conserve or transform the social world by con-
serving or transforming the categories through which it is per-
ceived." 11
9 On binary oppositions in discourse, also see Peller 1985, Schlag 1988, Cren-
shaw 1988, and Corlett 1989.
10 Crenshaw (1988:1373) illustrates the way in which racist ideology is based on a
series of ranked oppositions. Law and custom construct "races" from a broad range of
possible characteristics. Oppositions such as industrious/lazy, intelligent/ignorant,
moral/immoral, law-abiding/criminal, and responsible/shiftless are employed to dis-
tinguish between blacks and Caucasians. Discourse simplifies the social world, focuses
on a few characteristics that are expressed in oppositional terms, and applies the nega-
tive term of the pair to the subordinated group.
II Although the construction of difference in legal discourse may constitute social
practices by providing categories employed in understanding the social world, there
are important limitations on its effectiveness. For one thing, dominant discourses often
include multiple contradictory strains (Gramsci 1971; Femia 1975; Abercrombie et al.
1980). And work emerging from the Critical Legal Studies movement suggests that
contradictions often characterize legal discourse (e.g., Kelman 1987; Fitzpatrick 8c
Hunt 1987; Hutchinson 1989; Kairys 1990). Therefore, as Gramsci (1971:326) notes,
with hegemonic discourses, "various philosophies or conceptions of the world exist
and one always makes a choice between them." Since agents interpret and attach mean-
ing to elements of dominant discourses in ways that correspond to material experience,
one's location in social relations may affect the strains of dominant discourses that are
most salient. Indeed, Abercrombie et al. (1980) suggest that many elements of domi-
nant discourses are most likely to be internalized by dominant groups than by
subordinate groups and that these elements are most significant as sources of cohesion
among those in positions of power. Further, gaps between material experience and
elements of dominant discourses create space for resistance among subordinate groups
Critical study of legal discourse, then, attempts to bring to

light the norms implicit in doctrinal classifications and make
clear, and at the same time problematic, that which is taken for
granted. As important, it seeks to assess the ways in which cate-
gories, classifications, and oppositions are used by human
agents in making sense of the social world. Legal discourse
alone, however, may not consistently possess the visibility and
power to constitute social practices. It may operate simultane-
ously with related and frequently intersecting discourses em-
ploying similar classifications built on the same or similar nor-
mative foundations. In this way, legal discourse is but one
element in discursive formations that constitute social practices
and shape political consciousness. With this in mind, the fol-
lowing section discusses the context of Supreme Court deci-
sions in the area of political expression, paying particular atten-
tion to relevant social, political, and scientific discourses.
Discourses of Exclusion: The Context of Clear and

Present Danger
The United States Supreme Court had few opportunities
prior to World War I to discuss the applicability of the First
Amendment to political expression. In 1919, the Court issued
its first major opinions-opinions that would structure future
discussions on speech rights-seeking to define the permissible
scope of government restrictions on expression. These initial
cases involved defendants who had taken positions, either ver-
bally or in writing, opposing American involvement in the war.
That these cases arose during wartime undoubtedly af-
fected the Court's decisions and perhaps even the rules and
doctrine it established. But the potentially hegemonic quality
of the Court's discourse can be understood only in the context
of other discourses circulating prior to and during the time of
the decisions. In general, these discourses sought to define the
essential attributes of an "American." While debates over this
question had occurred with varying intensity since the begin-
ning of the Republic (Higham 1963; Walzer 1990; Heale 1990),
during the late 1800s and lasting through the war years, this
question became increasingly salient.
Discourses seeking to define the attributes of an American
during this period were fueled most directly by nativist im-
pulses. Nativist feeling at this time had varying sources
(Higham 1963), but a major impetus for the exclusionary dis-
courses circulating widely throughout the country came from
(Williams 1977; Scott 1985; Merry 1990; Sarat 1990; MacLeod 1991). The notion that
ideologies embedded in cultural texts may be interpreted in various ways by readers is
a central tenet of "reader-response" or "reception" approaches in literary theory. For
useful discussions, see Eagleton 1983 and Allen 1987.
Kessler 569
the continuing struggle of Anglo-Saxon immigrants to the

United States-immigrants who viewed themselves as "native
Americans"-to maintain their dominant position in American
society (Lawrence 1974; Heale 1990). Anglo-Saxon dominance
was threatened most seriously by dramatic increases in the
numbers of immigrants entering the country at the turn of the
century and from changes in the countries of origin of these
immigrants in comparison to previous waves. At this time,
smaller numbers of immigrants arrived from Germany, the
British Isles, Scandinavia, and the Low Countries, and vast
numbers arrived from southern and eastern Europe. The new
immigrants tended to have an "exotic look" compared to An-
glo-Saxons and previous immigrant groups, differing in skin
tone and complexion. Such differences, in time, came to be as-
sociated with differences in moral development and general
character (Higham 1963; Gossett 1965). 1 2
The new immigrants, along with many of the previous
groups, tended to settle in the growing urban areas of the
United States, where they increasingly gained political power.
Perhaps of greatest concern for "natives," this power at the lo-
cal level was translated with increasing frequency into power at
the national level, particularly in effective campaigns to block
proposed legislation to restrict further immigration and tighten
naturalization requirements (Preston 1963; Lawrence 1974;
Murphy 1979; Higham 1963).
The growth of the labor movement in the late 1800s and
early 1900s added significantly to the concerns and fears of
"native" American elites. The industrial violence surrounding
the activities of the Molly Maguires in the Pennsylvania coal
fields, the burning of boxcars in the railroad strikes of 1877,
the nationwide strike for an eight-hour day accompanied by an
exploding bomb in Chicago's Haymarket Square in 1886, the
armed conflict between steelworkers and private detectives in
Homestead, Pennsylvania, in 1892, the violence of the Pullman
strike two years later, and the growth and sustained activity of
the Industrial Workers of the World in the years leading up to
the war presented serious challenges to American capitalism
and those benefiting most directly from it.
Further, two political organizations advocating collective
property ownership-the national Socialist Party of America
(SPA) and the Non-Partisan League in the Midwest-gained
considerable strength and support in the early years of the 20th
century. Weinstein (1984:93-103) notes, for example, that in
1912 the SPA's presidential candidate, Eugene Debs, polled an
12 That skin tone and pigment were significant factors in nativist movements at
this time is reflected in the statement of Congressman Thomas Abercrombie of Ala-
bama. who warned that "the color of thousands of them differs materially from that of
the Anglo-Saxon" (Higham 1963:168).
impressive 6% of the vote, while party members held some

1,200 public offices in 340 municipalities, including 79 mayors
in 24 states. And in 1916, the Non-Partisan League, with its
platform calling for state ownership of grain elevators, flour
mills, and packing houses, won the governorship and lower
house elections in North Dakota and made impressive electoral
inroads in Minnesota (Goldstein 1978:99).
In the context of these important challenges to the status
quo, a variety of discourses raised serious questions about the
personality, character, and intentions of recent immigrant
groups and some sought to link these groups to radical labor
and party organizations. These intersecting discourses of ex-
clusion and intolerance contributed to the social construction
of difference along racial, ethnic, class, religious, and political
lines. Such discourses built on the long-standing notion that
the distinct character of the United States-specifically, its
commitment to personal freedom and democracy-was in large
measure attributable to the white, Anglo-Saxon, Protestant
people who colonized the country. "Native Americans," as
Higham (1963:10) documents, believed that the Anglo-Saxon
possessed a "gift for political freedom, ... a unique capacity
for self-government, and a special mission to spread its bless-
ings."
During the late 1800s and early 1900s, some xenophobic
discourses focused attention on Catholic immigrants. Although
Protestant fears of papal schemes to overthrow American insti-
tutions had a long history in the United States, in the late 1800s
native Americans braced themselves for an imminent revolt
(Higham 1963; Heale 1990). In 1893, for example, Detroit's
Patriotic American published a fraudulent encyclical allegedly ad-
dressed to American Catholics by Pope Leo XIII. This docu-
ment, according to the article, absolved American Catholics
from any oaths of loyalty to the United States and urged that
they "exterminate all heretics." In a book published in the
same year, The Coming American Civil War, Burton Ames Hunt-
ington suggested that several hundred thousand papal soldiers
had organized in American cities, ready to take revolutionary
action on command from Rome. In an argument reprinted
throughout the nativist press, Huntington urged a counterrev-
olution as a way of restoring "law and order" (Higham
1963:84-85). 13
13 In the early years of the 20th century, a variety of publications echoed these
themes. For example, Watson's Magazine published an article in 1914 underscoring the
imminent danger of a Catholic plot: "there is a foreign foe at our gates and that foe is
confidently expecting the spies within to unlock the portals. These domestic traitors
are the voracious Trusts, the Roman Catholic priesthood ... the Knights of Columbus"
(Higham, 1963: 179-80.) Labeling both Catholics and "the voracious trusts" as "for-
eign foes" and "domestic traitors" illustrates the Progressive roots of some anti-Catho-
lic sentiment at this time. On the relationship between Progressivism and Nativisim,
Kessler 571
At the turn of the century, Anglo-Saxonism also evolved

into a form of racial nativism. Developing initially in the South
and West, and then spreading throughout the country, racist
discourses sounded the alarm that increasing immigration
placed the purity of the Anglo-Saxon or "American" race and
the way oflife long associated with racial purity in serious jeop-
ardy. Political and economic elites throughout the country in-
creasingly expressed anxieties about Japanese immigrants,
Jews, Eastern Europeans, and groups arriving from the Medi-
terranean area. The general claim was that "America was losing
its racial superiority by allowing racially inferior immigrant
blood to mix with superior native blood" (Lawrence 1974:36).
The immigration problem was perceived as so ominous, writes
Higham (1963:139), that "everything fixed and sacred was
threatened with dissolution."
Scientific discourses emerging simultaneously reinforced
and clothed with the legitimacy of objective scientific inquiry
many of these general claims. European naturalists in the 17th
and 18th centuries had speculated about physical and cultural
differences among ethnic and racial groups and many had im-
plied the superiority of white races. But in the early 20th cen-
tury, American scientists and others employing a "scientific
method" wrote explicitly of the inferiority of nonwhite,
non-Anglo-Saxon groups (ibid., pp. 131-57, also see Gossett
1965). The geologist Nathaniel S. Shaler, for example, argued
that newly arriving "non-Arayan" immigrants "were wholly dif-
ferent from earlier immigrants and innately impossible to
Americanize" (ibid., p. 141). Henry Cabot Lodge published a
statistical study in 1891, seeking to demonstrate "the enor-
mous predominance of an English racial strain over every other
in contributing to the development of the United States"
(ibid.). The economist and president of the Massachusetts In-
stitute ofTechnology, Francis A. Walker, used Darwin's theory
of evolution to argue that the new immigrants "are beaten men
from beaten races; representing the worst failures in the strug-
gle for existence .... They have none of the ideas and aptitudes
which ... belong to those who are descended from the tribes
that met under the oak trees of old Germany to make laws and
choose chieftains" (ibid., p. 143).
Building on the work of Sir Francis Galton in England, the
eugenics movement emerged in the United States in the first
years of the 20th century. Devoted to improving the human
see Higham (1963) and Heale (1990). During this time, other publications, such as
Wilbur Phelps's The Menace, suggested that Rome directed subversive Italian immi-
grants to settle in America in order to replace the Irish, many of whom had developed
American lifestyles and modes of though (Higham 1963:180). The American Catholic
hierarchy itself contributed to the xenophobia of the times, raising questions. about the
divided loyalties of German immigrants who, some believed, resisted efforts at Ameri-
canization (ibid., p. 75; also see Heale, 1990).
species by controlling hereditary factors in mating, eugenics

supplied much of the scientific and philosophical rationale for
those seeking to restrict the immigration of groups constituting
a "degenerate breeding stock" (ibid., p. 151). Scientific and
political advocacy groups, such as the Immigration Restriction
League and the American Breeders Association, also drew on
work in anthropology which sought to identify the immutable
characteristics of the world's races. One book in particular,
Madison Grant's The Passing of the Great Race (1916), summa-
rized many of the arguments circulating in scientific communi-
ties. The laws of biology and genetics, according to Grant,
teach that "different races do not really blend." In this plea for
racial purity, Grant argued that the Anglo-Saxon, or "Nordic"
race, constituted the "white man par excellence." The waves of
Mediterranean, Alpine, and Jewish immigrants, argued Grant,
"threaten to extinguish the old stock unless it reasserts its class
and racial pride by shutting them out" (Higham 1963: 157).
These notions circulated widely, as concepts employed in the
new racial sciences "were simplified and popularized in news-
papers and periodicals so that laymen could understand at least
the basic ideas" (Lawrence 1974:36).
Ideas of white supremacy and racial distinctiveness not only
were employed in antiforeign, anti-alien, and anti-immigrant
discourses but also played an important role in explaining the
labor unrest of the period. These discourses built on and rein-
forced ideas about class that circulated during the initial stages
of American industrialization, particularly suggestions that la-
borers and the poor composed a "dangerous class" and consti-
tuted a major threat to social order (Heale 1990:22-23). Labor
agitation was portrayed as the product of alien immigrants who
lacked the moral and intellectual capacity to understand and
accept American institutions and values. For example, an arti-
cle appearing in The Age of Steel shortly after the Haymarket Af-
fair suggested that "anarchy is a blood disease from which the
English have never suffered. . . . [I]f the master race of this
continent is subordinated to or overrun with the communistic
and revolutionary races, it will be in great danger of social dis-
aster" (Higham 1963:138). The New York Herald, explaining the
violence associated with labor activity, remarked that foreign-
ers "have imported ideas and sentiments which have repeatedly
deluged France in blood .... The railroad riots ... were insti-
gated by men incapable of understanding our ideas and princi-
ples" (ibid., p. 31). The Reverend Mr. Theodore Munger ar-
gued that "anarchism, lawlessness ... labor strikes," and every
kind of labor agitation were "wholly of foreign origin," and, as
such, restricting immigration was imperative (ibid., p. 138). In
short, by the time of American entry into World War I, "a fate-
ful and erroneous identification of alien and radical was firmly
Kessler 573
implanted in the public mind" (Preston 1963:4). 14 These

themes appealed to the nativist susceptibilities of some seg-
ments of the American working class, who feared the competi-
tion and possible displacement represented by the new immi-
grants (Higham 1963:45-50, 183).
America's entry into the war and the political opposition
which this policy engendered provided "native Americans"
with the opportunity to move against those threatening their
privileged status. The political conflict over war policy, as Law-
rence (1974:156) argues, "p'rovided an impetus for the native
American-the 'real' American-to reassert himself and rid the
country of its foreign threat."
The campaign against the "foreign," "radical" war oppo-
nent was fought on a variety of fronts. Congress and the states
passed numerous laws, such as the Espionage Act of 1917, the
Sedition Act of 1918, and state criminal syndicalism laws, that
could be employed against dissenters and nonconformists. 15
And discourses circulating during the war years built on the
14 The association of "aliens" with subversion may be traced to the Alien and
Sedition Acts of 1798. When examined together, as Rogin (1987:57) suggests, these
laws imply that "aliens" are responsible for sedition. The continuous pattern in Ameri-
can history of what Rogin (1987) calls "demonization"-the stigmatization and dehu-
manization of an evil, alien, outsider-had its origins in European settlement of the
North American continent, especially in the violent conquest of native peoples. The
appropriation of native lands was justified by the construction of native peoples as "un-
civilized," "un-Christian," "wild," and "primitive" (Takaki 1979:11-15). According to
Rogin (1987:50), "the series of Red Scares that have swept the country since the 1870s
have roots in the original red scares. Later contersubversive movements attacked
aliens, but the people who originally assaulted reds were themselves aliens in the
land."
15 The Espionage Act permitted federal officials to punish overt expression op-
posing its war policies or even "individual casual or impulsive utterance" (Murphy
1979:79). This statute also made it a crime to "willfully make or convey false reports or
... statements with intent to interfere with the operation ... of the military ... or to
promote the success of its enemies," to "willfully cause or attempt to cause insubordi-
nation, disloyalty, mutiny, or refusal of duty in the military," or to "willfully obstruct
the recruiting or enlistment of the United States" (Murphy 1979:80).
The Sedition Act sought to make more explicit the provisions of the Espionage
Act, prohibiting among other things, "uttering, printing, writing, or publishing any
disloyal, profane, scurrilous, or abusive language intended to cause contempt, scorn,
contumely, or disrepute as regards the fonn of the government of the United States, or
the Constitution, or the flag" ... and "any language intended to promote the cause of
its enemies" (ibid., p. 83).Just prior to the end of the war in 1918, Congress passed the
Alien Act, a statute aimed at anarchists seeking to enter the country. This statute gave
the government authority to deport "any alien who, at any time after entering the
United States is found to have been at the time of entry, or to have become thereafter"
a member of an anarchist organization (ibid., p. 85).
State governments passed sedition statutes and criminal syndicalism laws, calling
for punishment of everything from overt disloyal expression to organizing or simply
joining an organization critical of the government or policies of the United States. Such
measures tended to be drawn imprecisely, giving local law enforcement officials enor-
mous discretion in their application (Gellhorn 1952; Goldstein 1978; Murphy 1979).
According to Goldstein (1978:113), more than 2,100 people were indicted under the
Espionage and Sedition acts. Over 1,000 were convicted, with more than 100 sen-
tenced to over 10 years in prison. None were convicted of actual espionage activity.
The total number of arrests and convictions under state sedition and criminal syndical-
ism laws is unknown, but estimates run in the thousands.
foundation provided by those that preceded them. Writers and

orators continued to emphasize the moral and intellectual in-
feriority and inherent dangerousness of aliens, but added dis-
loyalty to the list (Preston 1963; Murphy 1979; Higham 1963).
In a series of speeches during the war, President Wilson
branded all dissent as indicative of disloyalty, pointing an ac-
cusing finger at "hyphenated Americans," particularly those
from Germany. Wilson attacked "citizens of the United States
... born under other flags ... who have poured the poison of
disloyalty into the very arteries of our national life" (Rogin
1987:238). Speechmakers and writers coined the expression
" 100 percent Americanism" to signify appropriate beliefs and
actions of patriotic Americans. Higham (1963:204-12) shows
that this notion of patriotism demanded strict and universal
conformity with national purposes and policies, a conformity
that should be actively expressed with "evangelical fervor."
The Wilson Administration's Committee on Public Infor-
mation (CPI) carried the president's concerns about hyphen-
ated Americans and war protestors to the nation. Among other
things, the CPI wrote and distributed literature throughout the
country justifying Wilson's war policies and restrictions on civil
liberties. CPI pamphlets had a wide circulation, including ex-
tensive use in schools and universities, and many of them
echoed the nativist themes of the time. The CPI's Red, White,
and Blue series, for example, argued that America was being
"Germanized" by immigration, that pacifists had German sym-
pathies, and that German agents sought to subvert the Ameri-
can economy by provoking labor strikes prior to the war (Law-
rence 1974). In general, as Lawrence (p. 47) notes, "through
Committee literature, the great issues of the war became read-
ily understandable to the average man: conflicting interpreta-
tions of which country was responsible for beginning the war,
explanations for American involvement, and the causes of dis-
sent were all reduced to a conflict between Good and Evil." 16
16 A number of voluntary patriotic organizations. such as the American Protective
League (APL) and the American Defense Society (ADS). were organized by prominent
politicians and business leaders to monitor and take action against suspected "'subver-
sives"' and contribute to the propaganda effort. Both the APL and the ADS attacked
aliens, foreigners, and immigrants as "'radicals, reds, and socialists"' (Lawrence
1974:50). The ADS, organized and led by Theodore Roosevelt, echoed the theme of
"'100 percent Americanism" by suggesting that "members of certain groups and adher-
ents to certain beliefs-socialists, pro-Germans, pacifists, IWWs, and generally anyone
opposed to America's participation in the war-were not really American" (ibid., p.
54). Roosevelt proposed a military solution to the problem of radical labor activity,
arguing that "'every district where the I.W.W. starts rioting should be placed under
martial law, and cleaned up by military methods .... It is time to strike our enemies at
home heavily and quickly" (ibid., p. 55). The ADS's pamphlet, Awake! America, warned
its readers to beware of socialists, anarchists, and "'venomous IWWs" (ibid., p. 55).
Discourses emanating from the organized legal profession reinforced these anti-
radical, antiforeign themes (Auerbach 1976; Lawrence 1974). During the war, the con-
tent and tone of speeches given before meetings of the American Bar Association and
articles published in the American Bar Association journal harshly critized war protest,
Kessler 575
In sum, discourses gaining wide circulation and currency

both before and during the war portrayed the immigrant as,
among other things, alien, foreign, morally and intellectually
inferior, radical, violent, dangerous, unpatriotic, and disloyal,17
As significant, radical dissent came to be viewed as the product
of enemies of America, aliens and foreigners who lacked the
intelligence and breeding to appreciate and contribute to the
Anglo-Saxon way of life. 18 Oppositional categories in diverse
discourses compared recent immigrant groups to an implicit
white, Anglo-Saxon, Protestant norm along lines of ethnicity,
religion, race, and class. These implicit comparisons contrib-
uted in significant ways to the development of an "American"
identity. Oppositional categories, in other words, created a set
of attributes to be used for comparison, with the attributes of
"native Americans" serving as the unstated norm. These cate-
gories not only elevated the attributes of "native Americans" to
normative status but also constructed an enemy. As Heale
(1990:12) puts it, "American political culture seemed to re-
quire an enemy without as well as an enemy within, supplying
the inverse image of the American character." In a similar way,
raised questions about the loyalty of hyphenated Americans, and railed against the
threat of radicals and aliens. As Lawrence (p. 78) documents, "the]ourniJI dignified the
dogma of 100 percent Americanism, antisocialism, and antiradicalism, antipacifism,
and antiforeignism for members of the bench and bar." The American Bar Association
at this time was controlled primarily by corporate attorneys of Anglo-Saxon ancestry
who were engaged in efforts to "cleanse the bar" of immigrants by passing rules ex-
cluding aliens and enforcing admission standards that immigrant attorneys found diffi-
cult to meet (Auerbach 1976:103-29).
17 It is important in interpretive studies to examine all o( the attributes signifying
difference. As Greenhouse (1988:688) suggests, "when an interpretivist looks at differ-
ence, it is not at any particular distinction, but at the whole system of values and mean-
ings by which distinctions are drawn, symbolized, defended, reproduced, and modi-
fied."
18 These themes dominated public discourse through much of the 1920s andre-
surfaced in the post-World War II years in discourses about Communism and internal
security threats posed by domestic Communists. As Caughey (1958:29) notes, Euro-
pean political movements were defined and constructed ambiguously in the United
States so that "their exact meaning was often lost on Americans." Socialism, syndical-
ism, and anarchism tended to be "lumped together in popular thought and regarded as
not for America." In the 1940s and early 1950s, American politicians such as Joseph
McCarthy, the Federal Bureau of Investigation, and the House Committee on Un-
American Activities used the designation "red" or "Communist" as the "successor to
all these terms and a catch-all for their quite diverse meanings." In general, these dis-
courses portrayed those sympathetic to Communism as an external, un-American men-
ace, and "labored to establish a more effective and durable link in the public mind
between such individuals and some sort of international conspiracy" (Murphy
1979:272; also see Caughey 1958; Davis 1971; Murphy 1972; Goldstein 1978; Caute
1972; Gibson 1988). Rogin (1987) shows how the specific construction of "radicals"
changed during the Cold War from "aliens" with observable physical markings, a pri-
mary characteristic during the World War I period, to "invisible, internal Soviet
agents" (p. 239) who were indistinguishable from other "Americans." He suggests a
shift in emphasis from "the deranged subversive body" of the first quarter of the 20th
century to "the calculating alien mind" (p. 68). The relative invisibility of Communists
made them even more "dangerous" than previous "subversives" and, as Rogin sug-
gests, encouraged the rapid rise of a national security state that could infiltrate domes-
tic organizations to ferret out those with alien ideas.
576 Legal Discoune and Political Intolerance
Rogin (1987:284) writes that "the alien comes to birth as the

American's dark double, the imaginary twin who sustains his
(or her) brother's identity."
Legal Discourse and Political Intolerance

The United States Supreme Court delivered its first major
opinions on the expression rights of political dissenters in sev-
eral opinions from 1919 to 1927. 19 During this period, most of
the cases heard by the Court centered on the question of
whether state and federal governments could prohibit the ex-
pression of leaders and members of leftist political and union
organizations who spoke or wrote against American involve-
ment in the war. In case after case decided during this period,
the Court consistently affirmed convictions of socialists, anar-
chists, leaders of labor movements, and others opposing the
war. 20 However, this relative consistency in decisional out-
comes masks the dual ideological strands in the language used
in the opinions. In particular, doctrine developed by the Court,
its application to specific fact situations, its selection of facts to
emphasize and language employed in elaborating facts, and
dicta appearing in majority, concurring, and dissenting opin-
ions, project two broad ideological strands that are fundamen-
tally contradictory.
On one hand, running through many of the same decisions
that affirm convictions of those expressing political views is the
notion that free speech constitutes a crucial component of the
American political tradition. The primary doctrine developed
by the Court, announced for the first time by Justice Holmes in
Schenck v. United States (1919), asks "whether the words used are
used in such circumstances and are of such a nature as to create
a clear and present danger that they will bring about the sub-
stantive evils that Congress has a right to prevent" (p. 52).
19 The analysis in this text is drawn from a larger study of the role of First
Amendment jurisprudence in the development of the American state. The analysis
here is based on a close reading of the following decisions: Schenck v. United Stain
(1919); Frohwerk v. United States (1919); Debs v. United States (1919); Abrams v. United
States (1919); Schaeferv. United States (1920); Pin-ce v. United States (1920); Gilbert v. Minne-
sota (1920); Gitlow v. New York (1925); Whitney v. California (1927); Fiske v. Kansas (1927).
To develop a detailed interpretation, I have focused in this text on only a few of these
decisions.
20 The major exception is Fiske v. Kansas (1927), where the Court ruled that a
Kansas criminal syndicalism law was inappropriately applied in punishing an organizer
for the Industrial Workers of the World who, through verbal expression and written
pamphlets, solicited members for the union. This was the first indication that the Court
might find some actions of the IWW that could not be suppressed by the broadly ex-
pansive state criminal syndicalism laws. However, the overall significance of the case
should be viewed in the context of the IWW's decline by 1927. As Murphy (1972:87)
puts it, "such action could now be taken with some degree of judicial equanimity since,
with the exception of a few scattered pockets, the effective power of the I.W.W. had
been largely shattered and the organization itself largely decimated."
Kessler 577
Although the "clear and present danger doctrine," as it came

to be known, was used by the Court in Schenck to affirm an Espi-
onage Act conviction of the general secretary of the Socialist
Party of America for printing and circulating pamphlets oppos-
ing American involvement in the war, it may be legitimately
read to suggest that expression is so fundamental that only dan-
gerous expression may be proscribed by the state.
This interpretation, emphasizing the overwhelming signifi-
cance offree expression, also is evident in the Court's opinion
in Gitlow v. New York (1925). While affirming the conviction of a
member of the Socialist Party of America for publishing two
pamphlets-The Left Wing Manifesto and The Revolutionary Age-
the Court simultaneously incorporated the First Amendment's
expression provision and applied it against the actions of states
through the Fourteenth Amendment's due process clause. The
Court in Gitlow wrote that "freedom of speech and of the
press-which are protected by the First Amendment from
abridgement by Congress-are among the fundamental rights
and liberties protected by the due process clause of the 14th
Amendment from impairment by the states" (p. 666). The sig-
nificance of free expression is elaborated further in often men-
tioned and celebrated dissenting and concurring opinions by
Justice Holmes and Brandeis in such cases as Abrams v. United
States (1919), and Whitney v. California (1927). In Abrams, for ex-
ample, Justice Holmes developed the notion that ideas should
be free to circulate in a marketplace of sorts, writing in dissent
that "when men have realized that time has upset many fighting
faiths, they come to believe even more than they believe the
very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas-that the best
test of truth is the power of the thought to get itself accepted in
the competition of the market; and that truth is the only
ground upon which their wishes safely can be carried out" (p.
630).
Brandeis, seeking in an important concurring opinion in
Whitney to liberalize the clear and present danger doctrine,
wrote that speech may be suppressed only when "the incidence
of the evil apprehended is so imminent that it may befall before
there is an opportunity for full discussion" (p. 377). In stirring
prose, Brandeis linked free expression to individual self-fulfill-
ment and suggested that unencumbered debate would prevent
ideas threatening individual liberty from gaining popular ac-
ceptance. In Brandeis's words, "those who won our indepen-
dence believed that the final end of the state was to make men
free to develop their faculties .... They believed liberty to be
the secret of happiness and courage to be the secret ofliberty.
They believed that freedom to think as you will and speak as
you think are means indispensable to the discovery and spread
of political truth; that without free speech and assembly discus-

sion would be futile; that with them discussion affords ordina-
rily adequate protection against the disseminators of noxious
doctrine" (p. 375).
While elements of legal discourse in speech opinions writ-
ten during this period suggest that only the clearest cases of
harmful expression will be suppressed, a second ideological
strand offers a much wider legitimation of intolerance. This
second strand emerges from the implicit distinction embedded
in the clear and present danger doctrine between "acceptable"
and "unacceptable" expression-a distinction linked in the
doctrine to the attributes of safe/dangerous and good/evil.
"Acceptable" expression is safe, does not constitute a "dan-
ger," and is unrelated to any "evil that Congress has a right to
prevent"-it expresses values and ideas that are the antithesis
of evil. "Unacceptable" expression, on the other hand, is linked
to the attributes of "danger" and "eviJ."2 1
In determining what speech and which speakers were "un-
acceptable" by virtue of the "danger" or "evil" posed, the
Court relied on and supplemented the cultural construction of
difference in other discourses circulating during this period.
For example, the Court in Frohwerk v. United States (1919), af-
firmed the conviction of the publisher of the Missouri Staats
Zeitung, a German-language newspaper publishing articles criti-
cal of the war, a war whose purpose, it argued, was to "protect
the loans of Wall Street" (p. 207). Writing for a unanimous
Court, Holmes strongly implied that the paper's content and
those responsible for writing its articles were disloyal and un-
American. The paper, Holmes noted disapprovingly, "speaks
of the unconquerable spirit and undiminished strength of the
German nation" (ibid.). Holmes contrasted the paper's "com-
pliments to Germany" and its position that "the Central Pow-
ers are carrying on a defensive war," with the paper's criticism
ofEngland-"our sons, our taxes, and our sacrifices are only in
the interests of England" (p. 208). Holmes's reasoning placed
the expression and its author on the "unacceptable" side ofthe
boundary constructed in doctrine and justified this placement
due to the disloyalty of both.
The Court established a more direct association between
unacceptable, dangerous, disloyal, evil expression and the
"alien" and "foreign" disseminators of the expression in
Abrams v. United States (1919). In affirming the convictions of
21 The language and logic of the clear and present danger doctrine has been criti·
cized by liberals for, among other things, permitting only innocuous expression. See,
e.g., Meiklejohn 1960, Emerson 1966, and Graber 199!. Its application by the Court is
criticized by Mendelson 1952, 1953. Conservatives have criticized the general ap·
proach as too permissive. See, e.g., Berns 1965. For a defense of the general approach,
see Chafee 1941 and Shapiro 1966.
Kessler 579
five Russian Jews for publishing and circulating antiwar pam-

phlets written in English and Yiddish, the Court raised explic-
itly questions and concerns about the loyalty of those they de-
scribed as "defendant alien anarchists" (p. 623). Writing for
the majority, Justice Clarke underscored the fact that "all five
defendants were born in Russia." It was significant to Clarke
that "they had lived in the United States" for periods of time
"varying from five to ten years, but none of them had applied
for naturalization." Three of the defendants, Clarke wrote, tes-
tified that they were "rebels, revolutionists, and anarchists"
and that "they did not believe in government in any form ...
and had no interest whatever in the government of the United
States," a government they described as "capitalistic." A fourth
defendant, wrote Clarke, testified that he was a "socialist" (pp.
617-18). Clarke further sought to support the Court's conten-
tion that Abrams and his associates were disloyal by quoting
selectively from the pamphlets they produced. As Polenberg
(1987:234) shows, "Clarke quoted the most extreme language
in the leaflets, ignoring the most cautious statements which
were inconsistent with his interpretation. He did not mention,
for example, Samuel Lipman's postscript to the English leaflet
which began, 'It is absurd to call up pro-German .... ' "
Justice Holmes offered an important dissent in Abrams. Em-
ploying a more stringent reading of clear and present danger,
he argued that the prosecution failed to present sufficient evi-
dence for conviction. But in his defense of free speech, Holmes
contributed to the construction of political difference. He re-
fers to the pamphlets as "silly" (p. 628) and to the authors as
"poor and puny anonymities" (p. 629). Holmes's disagreement
with the majority is not based on a judgment that dissenters
may have something valuable to contribute to national debates,
but rather that the "creed of ignorance and immaturity" (ibid.)
espoused by the defendants did not "imminently threaten im-
mediate interference with the lawful and pressing purposes of
the law." Similarly, Brandeis, in the midst of his impassioned
defense of free speech in Whitney, portrayed dissident ideas as
"evil falsehoods," arguing that "if there be time to expose
through discussion the falsehoods and fallacies, to avert the
evil by processes of education, the remedy to be applied is
more speech, not enforced silence" (p. 377).
The majority in Whitney upheld the conviction of Charlotte
Anita Whitney-a founding member of the Communist Labor
Party-under California's Criminal Syndicalism Act for mem-
bership in an organization advocating "dangerous" ideas.
Whitney had not openly advocated violence and was associated
with a faction that sought to channel the party's efforts and ac-
tivities into established electoral arenas. But the Court argued
that membership in an organization whose platform declared
that "it was in full harmony with the revolutionary working par-
ties of all countries," whose purpose it was "to create a unified
revolutionary working class movement in America" by "or-
ganizing the workers as a class" (p. 363), and which might em-
ploy "criminal and unlawful methods" to further its goals, con-
stituted a "criminal conspiracy" (p. 327).22 Therefore, the
conviction of Whitney-a prominent philanthropist and social
worker, member of a distinguished California family, and niece
of Justice Stephen Field, one of American capitalism's
staunchest defenders-was sustained. What the Court's deci-
sion seems to signify is that the mere association with an organ-
ization espousing "dangerous" ideas that might be imple-
mented using "criminal and unlawful methods" is enough to
contaminate otherwise upstanding persons.
In several cases decided during this period, metaphors em-
ployed by the Court reinforce the construction of political dif-
ference in the clear and present danger doctrine. In Schenck, for
example, Holmes offered a vivid metaphor to symbolize the at-
tributes of unacceptable expression and those who utter it.
"The most stringent protection of free speech." Holmes wrote,
"would not protect a man in falsely shouting fire in a theater
and causing a panic" (p. 52). In affirming Schenck's conviction,
Holmes implied that a socialist publication opposing American
involvement in the war is the moral, legal, and political
equivalent of a malicious practical joke that may cause a panic
and possible injury in a theater. 23 The metaphor also suggests
that socialist and antiwar expression are falsehoods, unworthy
of constitutional protection. Those who espouse such views, in
22 Although not using the clear and present danger doctrine, the Court con-
structed labor unions and activities in similar ways during this period. For example, in
an effort to prohibit court injunctions in labor disputes, Congress in section 20 of the
Clayton Act of 1914 provided that "no restraining order or injunction shall be granted
by any court of the United States in any case between employer and employees ...
unless necessary to prevent irreparable injury to property, or to a property right." Sec-
tion 20 prohibited injunctions against "peaceful persuasion" of others to strike and
against primary boycotts. In American Steel Foundries v. Tri-City Central Trades Council
(l92l),the Court construed this provision narrowly, rejecting claims by a union that an
injunction against their peaceful picketing of an industrial plant violated section 20.
Chief Justice Taft, writing for the Court, suggested that picketing rarely could be
viewed as "peaceful." Discussing the facts of this case, he argued that "the numbers of
the pickets ... constituted intimidation. The name 'picket' indicated a militant purpose,
inconsistent with peaceable persuasion.... Persuasion or communication attempted in
such a presence and under such conditions was anything but peaceable and lawful" (p.
205). In Traux v. Comgan (1921), the Court goes further in its construction of unions as
"intimidating," potentially violent, and "militant" by overturning an Arizona law
modeled on section 20 of the Clayton Act. In this case, the Court decided that picket-
ing at a restaurant constituted "moral coercion by illegal annoyance and obstruction,"
and concluded that such activity "was plainly a conspiracy" (p. 320). Chief justice Taft,
again writing for the Court, suggests that the phrase "peaceful picketing" is "a contra-
diction in terms" (p. 340). On the construction of labor in legal discourse, see Avery
1988-89; Forbath 1991.
2S Dershowitz ( 1989) has noted the important differences between shouting fire
in a theater and expressing a political position.
Kessler 581
the context of the doctrine's language and the metaphor em-

ployed to illustrate its point, are implicitly labeled as irrespon-
sible, perhaps mentally unstable, and most certainly dangerous.
In Frohwerk, Holmes developed and employed another met-
aphor that connects antiwar articles written by a "foreigner"
with dangerous behavior, this time "the counseling of mur-
der." "We venture to believe," Holmes argued, "that neither
Hamilton nor Madison, nor any other competent person then
or later, ever supposed that to make criminal the counseling of
murder within the jurisdiction of Congress would be an uncon-
stitutional interference with free speech" (p. 206). In uphold-
ing the Espionage Act and its application in this case, Holmes
equates the nonviolent act of publishing antiwar articles with
advising one to take the life of another-the type of behavior
one can only expect from a murderous thug.
Finally, in several of its opinions, the Court draws parallels
between unacceptable expression and the destructive potential
of fire. In Frohwerk, for example, Holmes raised the possibility
that under certain circumstances, "a little breath" on the publi-
cations in question "would be enough to kindle a flame" (p.
209). And in Gitlow, the Court colorfully elaborated this meta-
phor, suggesting that "a single revolutionary spark may kindle
a fire that, smoldering for a time, may burst into a sweeping
and destructive conflagration" (p. 669).
In announcing the clear and present danger doctrine and
then applying it to punish those whose expression has some
perceived "bad tendency" (Downs 1989), the Court contrib-
uted to the political repression ofleftists during the World War
I "red scare" (Levin 1971; Goldstein 1978). 24 More signifi-
cantly, the Court's discourse socially constructs political differ-
ence and constitutes a political spectrum. The oppositional cat-
egories embedded in the Court's clear and present danger
doctrine sorts speech into an "acceptable," protected grouping
and an "unacceptable," unprotected grouping. These distinc-
tions between protected and unprotected expression-distinc-
tions embedded in but one of many available approaches to
questions of speech rights (Van Alstyne 1982; Graber 1991)-
focus on the danger posed by expression, and those who es-
pouse it. 25 The Court applied this doctrine in several cases and
suggested, at times explicitly, that antiwar expression, particu-
24 During other periods, of course, right-wing groups, such as the German-Amer-
ican Bund, suffered similar repression. See, e.g., Goldstein 1978.
25 Of course, free speech doctrines, with the exception of absolutist approaches,
must draw a line between protected and unprotected expression somewhere and in
some way. But the two strands oflegal discourse examined in this article work together
to permit the line to be drawn almost anywhere. Moreover, the emphasis on danger-
ousness encourages simple prejudice--inscribed in other cultural materials-to justify
intolerance rather than providing some measure of the real threat posed to social sta-
bility.
larly if associated with aliens, foreigners, socialists, anarchists,

and leaders of activist labor unions, was dangerous, false, irre-
sponsible, disloyal, and un-American. Such expression, along
with those who espouse it, were implicitly compared to un-
stated norms of acceptable expression. What constitutes "ac-
ceptable" or "normal" expression is "American" in nature,
and what is "American"-consistent with the premises of the
dominant discourses of the time-is "native," Anglo-Saxon,
loyal, responsible, safe, and accepting of the political and eco-
nomic status quo. The Court's discursive construction of polit-
ical difference, then, may be interpreted to constitute a political
spectrum composed of a norm or "mainstream" and "fringes"
considered as deviant, abnormal, and undesirable.26
The significance and consequences of the Court's expres-
sion doctrine may be fully appreciated only in the context of
other overlapping and intersecting discourses. The clear and
present danger doctrine responded to different political
problems and drew on different philosophical premises than
nativist and xenophobic political discourses and scientific dis-
courses based on notions of ethnic and racial superiority. As
Graber (1991) shows, the Court's doctrine emerged from prin-
ciples of pragmatism and sociological jurisprudence, principles
advocating that decisionmakers weigh and balance competing
26 At the height of the post-World War II "red scare," in Dennis v. United States
(1951), the Court constructed Communists in much the same way that it had con·
structed political dissenters from 1919 to 1927. In the case, the Court affirms the con-
victions of several leaders of the Communist Party of the United States of America
(CPUSA) for organizing the party and teaching Marxist-Leninist doctrine. Justice Vin-
son, writing for the Court, loosely interprets the clear and present danger doctrine,
arguing that it is unnecessary to show a close relationship between expression and
some "evil" action. Throughout the opinion, Vinson focuses on the threat of violence
in his reading of "Marxist-Leninist" doctrine. He implies that Dennis and his associ-
ates, along with all members of the CPUSA, are themselves prone to violence, closely
connected to the Soviet Union's Party apparatus, and, as such, are disloyal and, indeed,
constitute dangerous enemies of America. In justifying the convictions in this case,
Vinson portrays the CPUSA as a "highly organized conspiracy" with "rigidly disci-
plined members" and writes that the defendants were "at the very least ideologically
attuned" to countries with whom the United States has "touch-and-go relations" (p.
511).
After the hysteria accompanying the McCarthy period subsided, the Supreme
Court rendered decisions on political expression that were more consistent with the
libertarian discourse in some of its previous decisions. In Yates v. United States ( 1957)
and Brandenburg v. Ohio (1969), for example, the Court read the doctrine of clear and
present danger much more stringently than had any previous majority opinion, requir-
ing that unprotected expression be directly linked to "imminent lawless action." Con-
sequently, as Downs ( 1989:324) suggests, from the 1960s to the present, "the First
Amendment is the most liberal and individualistic of all areas of constitutional law."
These more permissive opinions emerging from the Court's current "liberal and
individualistic" approach, however, must be seen in the context of its construction in
doctrine of a band of "acceptable" expression. Although its expression decisions since
the 1950s have generally become more liberal, the test used by the Court continues to
distinguish between acceptable/unacceptable and normal/abnormal political expres-
sion. These distinctions should be viewed in the context of American culture, which
continuously "demonizes" various individuals, groups, and organizations. In this re-
gard, see Rogin 1987, especially chs. 2 and 8.
Kessler 583
social interests in the development of public policies and pro-

grams. The clear and present danger doctrine transformed the
constitutional defense of free speech from the legal and polit-
ical principles of what Graber calls "conservative libertarian-
ism"-a philosophy conceiving of speech as an individual right,
much like property rights, that could not be violated unless
closely linked to criminal activity-to a view that the constitu-
tion protected only a social interest in speech that must be bal-
anced against other interests that may conflict. This jurispru-
dential view was employed by progressive legal scholars in
another context to argue against judicial decisions protecting
an absolute "liberty of contract" and, more generally, for judi-
cial restraint and deference toward the social and economic
policies of legislatures. The Court's expression doctrine, then,
may be viewed as part of a philosophical and political move-
ment in the early part of this century that advocated an activist
government in social and economic realms unencumbered by
an activist judiciary.
The influence of pragmatism and sociological jurispru-
dence on the Court's expression doctrine illustrates legal dis-
course's relative autonomy from other fields of cultural produc-
tion. But focusing on the doctrine's autonomous origins and
philosophical sources masks the important ways in which the
multiple discourses of the time intersect to construct a political
"other."
The social construction of a political spectrum composed of
a "mainstream" and "fringes" constitutes an important in-
dependent contribution of legal discourse in this process. The
individuals and groups who reside on the "fringes," however,
are constructed in each of the discourses and, as important, in
their intersections. The idea that "fringe" expression espoused
by "fringe" individuals and groups is "dangerous," "irrespon-
sible," and "un-American," is inscribed in legal discourse. But
the signifers employed in legal discourse that describe the at-
tributes of "fringe" groups may evoke images of the racial,
class, ethnic, and religious groups constructed as "other" in
nativist, classist, xenophobic, and racist discourses of the time.
In other words, when the Court suggests that "socialists" or
"anarchists" are "dangerous" or "disloyal," these signifiers
may evoke images of other "dangerous" or "disloyal" groups
portrayed in other discourses, such as "hyphenated Ameri-
cans," the urban poor, blacks, Catholics, andjews. 27 And when
27 In a few of its decisions, the court protected immigrants and those deemed
"alien" from xenophobic persecution. For example, in Meyer v. Nebraska (1923), the
Court struck down a Nebraska law forbidding the teaching of any subject in public
schools in a language other than English. And in Pierce v. S~ty of Sisters (1925), the
Court overturned an Oregon law that sought to prohibit children from attending Cath-
olic and other parochial schools. And some of its decisions suppressing expression,
such as Whitney and Debs v. United States (1919), did not involve immigrant defendants
nativist discourses discuss the "danger" presented by "aliens"

or "hyphenated Americans," it may evoke the image of groups
residing on the political "fringe" constituted in legal dis-
course.28 Thus, while each of the multiple discourses circulat-
ing at the time contributes independently to the social con-
struction of the "other," it is in the intersection of the signifers
embedded in the multiple discourses that the discursive forma-
tion has full effect-the marginalization and exclusion of all
those constructed as "other."29
That connections are drawn between the "fringe" status
constituted in legal discourse and the racial, ethnic, and reli-
gious groups emphasized in other discourses may be illustrated
in a reading of an article written in 1920 by the prominent legal
scholar, John Wigmore.so Writing in the Illinois Law Review,
Wigmore provides an elaborate critique of Holmes's dissent in
Abrams, particularly Holmes's conclusion that the pamphlets
written and distributed by Abrams and his associates did not
constitute a clear and present danger. Throughout the article,
Wigmore develops the theme that Abrams and the other de-
or directly reinforce nativist feelings. My analysis does not suggest that the Court itself
sought to directly repress Catholics, "hyphenated Americans," and other marginal
groups in specific decisions. Indeed, such decisions may produce damaging criticisms
of the Court as acting "politically" to further the xenophobic cause. What I seek to
show in this analysis is how xenophobic feelings may be evoked by the Court's clear
and present danger doctrine, with the consequence of excluding certain expressions
from the political arena. The emphasis is on the intertextual connections between legal
doctrine and other discourses, not on the direction or specific fact situations of particu.
Jar Court decisions.
28 The clear and present danger doctrine may be viewed as an effort to buffer the
Court from nativist, xenophobic, and superpatriotic feelings circulating at the time
(see, e.g., Chafee 1941). Had the Court wished to directly and explicitly reinforce such
feelings, it could have invoked the traditional law of seditious libel, ruling that the Con-
stitution failed to protect disloyal speech (on seditious libel, see Levy 1960). My argu-
ment is not that the clear and present danger doctrine directly expresses nativist, xeno-
phobic, and superpatriotic feelings. Rather, the analysis suggests that intertextual
connections between legal doctrine and other discourses may indirectly reinforce and
help constitute such feelings through the social construction of a "mainstream" and
"fringes," with "dangerous aliens," the subject of many intersecting discourses at the
time, residing on an "un-American" fringe. But by refusing to specify in its doctrine
the "danger" or "evil" required to suppress speech, the Court creates a distance in its
doctrine from the cultural feelings surrounding its birth that permits future courts to
use the doctrine to protect marginal groups in specific cases.
29 The notion that multiple, intersecting discourses constitute social life has par-
allels in Santos's (1987) postmodem conception of law. Building on work in legal plu·
ralism-work that calls attention to the existence and circulation of networks of formal
and informal legal orders-Santos (pp. 297-98) develops the concept of "interlegal-
ity," or "the phenomenological counterpart oflegal pluralism." Interlegality suggests a
"conception of different legal spaces superimposed, interpenetrated, and mixed in our
minds as much as our actions, in occasions of qualitative leaps of sweeping crises in our
life trajectories as well as in the dull routine of eventless everyday life." It is through
"the intersection of different legal orders, that is, by interlegality," that "our legal life
is constituted."
liO Wigmore, a graduate of Harvard Law School and one of the founders of the
Harvard Law Review, was a law professor at Northwestern University. He is perhaps best
known as the author of the four-volume Treatise on Evidence. For a fuller description of
his background and views, see Polenberg 1987:248-56.
Kessler 585
fendants are "aliens" with "un-American" ideas who, as part of

an international conspiracy, pose a serious threat to American
institutions. The defendants, referred to by Wigmore as
"Abrams and his band of alien parasites" (Wigmore 1920:549},
are portrayed as imported revolutionaries whose major intent,
despite their having enjoyed the advantages of American life
for several years, is to "destroy that which nourished them" (p.
543).
Wigmore repeats the majority opinion's factual presenta-
tion that "the five defendants ... had lived in this country for
from five to ten years, without applying for naturalization" and
points out that they refer to themselves as "rebels," "revolu-
tionists," and "anarchists" (ibid.). Elaborating on the metaphor
employed in Frohwerk comparing "fringe" expression to the
"counseling of murder," Wigmore portrays the distribution of
pamphlets by Abrams and his associates as "organized thug-
gery." He asks, "does 'free trade in ideas' mean that those who
desire to gather and set in action a band of thugs and murder-
ers may freely go about publicly circularizing and orating upon
the attractions of loot, proposing a plan of action for organized
thuggery, and enlisting their converts, yet not be constitution-
ally interfered with until the gathered band of thugs actually
sets the torch and lifts the rifle?" (p. 552).
Wigmore calls attention to the race and religion of the Rus-
sian Jewish defendants by describing them as "alien agents,
who relied primarily on an appeal to the thousands of alien-
born and alien-parented of their own races earning a livelihood
in this country" (p. 543). In making appeals to those "of their
own races," Wigmore emphasizes that one set of pamphlets-
pamphlets whose content contained "nothing spontaneous,
nothing American" (ibid.) and which encouraged "treacherous
thuggery" (p. 560)-were written in a language used primarily
by immigrantjews. But Wigmore failed to mention that a sec-
ond set of pamphlets employed English: "So much for the per-
sonality of the men who up to August 27, 1918, published and
distributed some 5,000 of these circulars, printed in Yiddish"
(p. 543).
Discussion and Conclusions

This analysis of the dual ideological strands in free speech
discourse, combined with the examination of other overlapping
and intersecting discourses, permits us to see the cultural con-
tent that legal norms both constitute and absorb as people seek
to live by them. The Court's free speech discourse includes two
distinct strands, projecting two vastly inconsistent messages. A
libertarian strand emphasizes that free expression is a funda-
mental component of the American political tradition. Indeed,
speech is so fundamental that it must be protected and permit-

ted to circulate in a "marketplace of ideas," except in the most
marginal cases. A second strand suggests that "dangerous" ex-
pression may be punished, where "danger" is an extremely
malleable category whose content, in important respects, is cul-
turally determined. "Danger" becomes even more malleable
because the Supreme Court itself relies on the "otherness" of
speakers in determining what is "dangerous." In other words,
"danger" is not a narrow or precisely defined category but
rather sweeps in a variety of cultural materials defining the
"other." That the Court uses the category "danger" as it does
legitimates using cultural materials defining "otherness" as the
basis for defining "danger."
Although much empirical work remains to be done, social
science attitude research on tolerance for nonconformity may
be interpreted as reflecting in important ways the inscription in
popular consciousness of the multiple discourses examined in
this article. 31 For one thing, the finding in much of this work
that the public believes in free expression when stated as an
abstract principle, but encounters difficulty in applying the ab-
straction to concrete situations, parallels the Court's practice of
discussing free expression's fundamental nature in opinions
that restrict it for groups and individuals deemed "dangerous"
and "deviant"-for those, that is, who reside on the "fringe."
By and large, the "social learning model" of tolerance em-
ployed in much prior social science attitude research fails to see
or acknowledge the multiple and often contradictory messages
or "lessons" (or what this research often calls "system norms")
to which people are exposed. 32 An important example is pro-
vided by the Supreme Court's speech decisions in the 1920s.
The Court developed a test that balanced contradictory values
of individual freedom and communal security. The libertarian
strands in the Court's discourse were undercut by distinguish-
ing between "acceptable" and "unacceptable" expression in
terms of the speaker's or expression's "dangerousness." The
31 Like many of the interpretive scholars referred to in this article, I believe that
there are important limitations on what can be learned from responses to survey ques·
tions. Brigham (1991), for example, suggests that surveys measure abstract "feelings"
rather than practical knowledge rooted in everyday life experience. However, this does
not mean that survey responses are totally without meaning. What I seek to show is
how such "feelings" reported in tolerance research may be interpreted differently as a
consequence of the discourse analysis presented, combined with a sensitivity to the
potential significance of one's location in social relations.
32 McClosky and Brill (1983:242-43) do recognize that court decisions fail toes·
tablish absolute expression rights and "usually involve an intermingling ofliberties and
restraints." However, they view libertarian norms as overriding others and suggest that
the "contingencies and caveats, fine and subtle distinctions, exceptions and limita-
tions" and "specifications of the conditions under which a given liberty is to be pro-
tected or prohibited" found in legal decisions simply render libertarian norms "diffi-
cult to grasp" for "average individuals." The only explicit recognition of contradictory
norms that I have been able to locate in this literature is in Gibson 1988.
Kessler 587
Court thus developed limits of free speech that indirectly and

unintentionally reinforce other intersecting cultural discourses
that silenced certain groups, individuals, and voices. In light of
the contradictory nature oflegal discourse in this area, of which
the Supreme Court's doctrine is an example, it is difficult to
imagine how the public could be more "consistent" in their re-
sponses to questions about the appropriate level of tolerance
toward groups the public deems dangerous. 33
In the case of political tolerance, the public is exposed to
legal and other discourses that legitimate both abstract liberta-
rian norms and repression of those who appear to be danger-
ous. When confronted by concrete applications of libertarian
principles to "radical" groups, the choice by many in the public
to employ repressive strands of dominant discourses is consis-
tent with their subordinate position in social relations. 34 Lack-
ing control over the means of coercive force, the public focuses
on and responds to the portrayal of "fringe" groups as "evil"
and "alien, " 35 fearing that appropriate action may not be taken
if "fringe" groups gain support, momentum, or seek to gain
power by force.36
33 Gramsci (1971:326-27) suggests that political consciousness is often character-
ized by contradiction and inconsistency. And empirical studies suggest that such con-
tradictions describe many elements of the public's political worldview (e.g., Hill 1976;
Parkin 1972; Mann 1973; Willis 1977). These studies indicate that interpretations of
various strains of dominant discourses and contradictions and inconsistencies in beliefs
and actions are a function of material experience and one's location in social relations.
Femia (1975:46), summarizing much of this work, suggests that a member of a
subordinate group "tends to have two levels of normative reference-the abstract and
the situational. On the former plane, he expresses a great deal of agreement with the
dominant ideology; on the latter, he reveals not outright dissensus but nevertheless a
diminished level of commitment to the bourgeois ethos, because it is often inapposite
to the exigencies of his class position."
34 I employ the distinction found in tolerance research between elites and the
public (or "the masses," as the non-elite public is often referred to in these texts). This
distinction carries with it an impoverished vision of social relations, failing to capture
differences based on such things as class, race, gender, ethnicity, sexual orientation,
and religion. My purpose is using this distinction is to illustrate how tolerance research
may be viewed differently through an interpretive, practice theory lens.
35 Tolerance research suggests that the social construction of radicals may have
had a long-term effect on the public's feelings about leftist groups and organizations.
Sullivan et al. (1982), for example, asked respondents to identify their most disliked
groups and organizations. Nearly one-third of the respondents, the largest group in the
study, felt the greatest animosity toward Communists.
The attributes associated with radical dissent in the discourses discussed in this
article also are reflected in the findings of tolerance research. When Stouffer (1955),
for example, asked participants in his study to identify characteristics of a Communist,
the most frequently mentioned attribute was "foreign" (also see Sullivan et al.
1982:168). Sullivan et al., consistent with others (McClosky & Brill 1983), reported a
relationship between the perceived dangerousness of groups and intolerance toward
those groups. Communists constituted the group least tolerated by the study's partici·
pants. And when asked to rank various groups on a scale of good/evil, safe/dangerous,
and loyal/disloyal, participants tended to place Communists toward the evil, danger-
ous, and disloyal ends of the poles.
36 The discourse of clear and present danger also has affected groups seeking to
resist dominant discourses and practices. Brigham (1987b), for example, argues that
part of the feminist case against pornography seeks to persuade that pornography
The dominant position of elites in social relations, on the

other hand, makes it more likely that they will apply libertarian
strands of dominant discourses to concrete situations, even
when those situations include "fringe" groups and organiza-
tions. Because elites are by definition located in close proximity
to the means of coercive force, they need not fear that chal-
lenging groups will gain power without meeting stiff resistance
from state apparatuses that they control. Elites, in other words,
are able to focus on libertarian strands in dominant discourses
and thus respond by being more "consistently" tolerant to
"radical" groups, secure in the knowledge that as expression
turns to tangible threat, state action will be taken. In other
words, this interpretation suggests that elites are not "better
equipped" than the public to "learn" libertarian "norms," as
McClosky and Brill (1983:243) suggest, but rather are situated
differently in social relations. Although elites and non-elites re-
spond to "alien" political expression with different levels of
tolerance, they are equally "rational" and equally consistent
with a broad set of norms. Recent research suggests that sup-
port for free speech among political elites declines substantially
as the expression's content becomes more threatening to the
existing political-economic system (Gibson & Bingham 1982,
1985; Shamir 1991) and that political repression during the
McCarthy era was most likely initiated by and received its most
significant support from elites, rather than from the public
(Rogin 1967; Goldstein 1978; Gibson 1988). This study raises
additional questions about the basic premises of revisionist
democratic theory, a theory based on the problematic assump-
tion that the public's intolerance is a function of individual defi-
ciencies in socialization and learning (e.g., McClosky & Brill
1983) and, as a result, that they constitute the most serious
threat to fundamental democratic principles.37
This study also illustrates how multiple, intersecting dis-
courses of intolerance may contribute to what Schattschneider
(1960) calls a "mobilization of bias"-"a set of predominant
causes violence against women, constituting a clear and present danger which man-
dates suppression. But rather than employ an explicitly legal discourse, feminist dis-
course rejects law as the product of patriarchy. The practice of opposing law in the
antipornography movement, however, is itself constituted in important ways by the
"tacit recognition of the hegemony of a free expression ideology in the broader polit-
ical culture" (p. 321).
37 Brigham (1991:589) suggests that tolerance research's portrayal of the public
as holding "bad attitudes" has had the additional consequence of raising the prestige
of institutions, like courts, that are maximally insulated from popular opinion. Because
the public cannot be trusted to protect fundamental rights and liberties, courts and the
professional elite who staff them-rather than representative institutions-become the
preferred source of rights and liberties. Consequently, the meaning of democracy and
democratic institutions has shifted in important ways: "Contemporary attitude re-
searchers seem to have redefined the institutional correlates of democracy with the
characteristic democratic institutions becoming the courts and the paradigmatic demo-
cratic stance becoming resistance to popular will."
Kessler 589
values, beliefs, rituals, and institutional procedures ... that op-

erate systematically and consistently to the benefit of certain
persons and groups at the expense of others" (Bachrach &
Baratz 1970:43; also see Lukes 1974). The discursive formation
surrounding issues of immigration, free expression, and polit-
ical dissent in the 1920s exclude a variety of concerns and posi-
tions from the public agenda-particularly those that chal-
lenged the political and economic status quo. Free speech
discourse validated the conclusion that such ideas could be
considered "alien," incompatible with an "American" perspec-
tive, and thus, in legal terms, dangerous. Because the institu-
tion from which this discourse emanated, namely, the Supreme
Court, was held in such high regard-perceived as objective,
neutral, nonpartisan, and authoritative-it legitimated the ap-
propriation of social constructions of "otherness" in other cul-
tural texts to distinguish between "acceptable" and "unaccept-
able" political expression. The Court thus played an important
role in setting the terms of political debate by constructing, in
its doctrine and through intertextual relations to other dis-
courses, a political spectrum composed of a "mainstream" and
"fringes. " 58
The interpretive perspective developed in this article be-
gins to lay a foundation for a more dynamic, nuanced, and con-
textualized study of hegemonic legal discourse. The analysis
suggests that future work on legal discourse will benefit from a
more systematic consideration of its intersections with related
discourses. Equally important, the theoretical framework sug-
gests a research agenda that examines the way in which contra-
dictions in dominant discourses are interpreted and employed
based on varying locations in social relations, such as those as-
sociated with subject positions of class, race, gender, religion,
ethnicity, and sexual orientation.ll9
ss Brigham (1987a:216) emphasizes this type of relationship between courts and
the state, arguing that "through the symbols it fashions, the Court makes its greatest
contribution to the state, not by the threat of sanctions, but by confining the discourse
and action of politics along well-worn paths." In this sense, legal institutions are inti-
mately engaged in the political world in ways that reach far beyond the specific deci-
sions they render.
S9 Previous work on hegemonic legal discourse, much of it associated with the
Critical Legal Studies movement, focuses almost exclusively on identifYing ideologies
embedded in legal doctrine. As critics of this work have suggested, these studies typi-
cally assume without much analysis that legal discourse's content is inscribed in popu-
lar consciousness, guiding the way in which agents make sense of the world (Trubek
1984; Munger 8c Seron 1984; Trubek 8c Esser 1989). By and large, this body of work
fails to explore ways in which various strains of dominant discourses are interpreted or
the affect of one's location in social relations.
Some important implications of the approach taken in previous work in Critical
Legal Studies are developed by Crenshaw ( 1988) in her critique of critical scholarship
as it applies to race. Crenshaw persuasively challenges the assumption in much of the
critical literature on antidiscrimination law that dominant beliefs regarding the fairness
of American society and institutions are accepted by African Americans and constitute
a major constraint on effective mobilization for change. Crenshaw suggests that many
A fuller, richer, and more socially contextualized under-

standing of legal doctrine as ideology requires a shift in social
science research from an emphasis on "attitude" to an exami-
nation of"public knowledge" (Brigham 1990:593). Attitude re-
search, relying on structured survey questions for information
on "feelings," reduces material life to "preferences" presumed
to be freely chosen by individuals. It often fails to consider con-
nections between survey responses, the cultural materials that
may constrain choice, and the social and material conditions
within which people live. Public knowledge, on the other hand,
refers to the ways in which people make sense of the world and
is formed through the interaction of cultural materials and ma-
terial conditions.
With respect to political tolerance, such work might build
on the discourse analysis presented in this text by interpreting
the categories, norms, attributes of deviance, and varying ideo-
logical strands inscribed in other cultural materials, such as ed-
ucation, entertainment television, popular fiction, print and
electronic news media, film, pop music, and advertising (Chase
1986; Macaulay 1987). Some suggestive work along these lines
already exists. For example, Rogin (1987:236--71) concludes
from an examination of films produced during the Cold War
that they "depict the Communist threat as an invasive, invisi-
ble, deceptive, enslaving conspiracy" (p. 245). Many of the
films he analyzed depoliticize radical dissent by equating Com-
munism with crime. Rogin (p. 239) suggests that films during
the Cold War, the atomic spy trials of the 1940s, and investiga-
tions of domestic subversion by HUAC ''joined together as one
danger atomic spying, revelations of confidential government
proceedings, Communist Party membership, membership in
'Communist front' organizations, manipulation of mass opin-
ion, and subversive ideas." This intertextuality, or what Rogin
colorfully refers to as "guilt by free association," implies that
"subversive ideas" are "the source of atomic contamination."
Putting it in an equally colorful way, Rogin argues that "the
Red Scare made un-American ideas radioactive." Rogin's read-
ing of science fiction films produced during the Cold War is
particularly pertinent to this text's analysis. Much like the meta-
phor used by the Court in Gitlow of"dangerous" ideas as a rap-
idly spreading and destructive fire-"a single revolutionary
spark may kindle a fire that, smoldering for a time, may burst
into a sweeping and destructive conflagration"-he suggests
Mrican Americans recognize that American ideas are at variance with their material
conditions and that "the most significant aspect of Black oppression seems to be what
is believed about Black Americans, not what Black Americans believe" (p. 1358). What
is significant to Crenshaw, then, is that members of the dominant racial group internal-
ize aspects of dominant discourses that oppress members of the subordinated group.
African Americans, according to Crenshaw, "are boxed in largely because there is a
consensus among many whites that the oppression of Blacks is legitimate" (ibid.).
Kessler 591
that "aliens" signifying domestic Communists portrayed in

such films as The Thing ( 1951) and Invasion of the Body Snatchers
(1956) "multiply promiscuously" and "spread destruction" (p.
264). 40
A broader and more systematic examination of American
cultural texts should then be joined by efforts to assess any cor-
respondence between the categories and varying ideological
strands encoded in cultural materials and the ways in which
human agents understand and make sense of their world. Such
analyses will require readings and interpretations of public
knowledge as it is manifested in ordinary conversation, letters
to newspapers, or personal diaries. 41 This research agenda en-
courages work that assesses more systematically than existing
studies the contribution of law to culture. As such, it consti-
tutes part of a movement to redirect the traditional concern in
much sociolegal research from examining gaps between law's
promise and performance--its ineffectiveness-to an explora-
tion of law's effectiveness in constituting social reality (Sarat
1985). With greater sensitivity to varying strands of ideology
inscribed in doctrine, and the potential significance of one's lo-
cation in social relations, this project promises to improve our
understanding of law in society and law's relationship to the
state-how law and the ideologies it constructs and reflects le-
gitimate, reinforce, and challenge existing relations of domina-
tion.
40 Gitlin ( 1980), in a study of news coverage of Students for a Democratic Society

by the New York Times and CBS, argues that the news media played an important role in
the "unmaking" of the New Left by ignoring its political program. journalistic routines
and standard operating procedures led to coverage that focused primarily on violence
surrounding demonstrations, internal dissension in the movement, and the "abnor-
mal" language, age, dress, and personal appearance of movement activists. Such cover-
age, according to Gitlin, served to trivialize and marginalize the New Left.
A final example is the work of Schaub (1991) on American fiction during the Cold
War. He shows how many prominent liberal writers and literary critics sought to come
to terms with their past political sympathies toward socialism, communism, and the
Soviet Union by constructing a new "liberal narrative" that disparaged all political ide-
ologies. The retreat from ideology in some literary circles, according to Schaub (p. 23),
"was itself an ideology that served to reinforce the dominant Cold War polarities which
privileged American democracy, imagined as a fruitful tension of conflicting groups in
contrast with the monolithic repressiveness of the Soviet Union."
41 Ethnographic case studies, such as those conducted by Merry (1990), Sarat
(1990), and Ewick and Silbey (1992), provide opportunities to assess interactions be-
tween practical knowledge and one's location in social relations. Indeed, ethnographic
research encourages a richer, more nuanced conception of social relations than may be
obtained from surveys-a conception that takes account of everyday life and knowledge
that emerges from subject positions that vary by class, race, religion, gender, ethnicity,
sexual orientation, and so on. Such work, then, promises to move the study ofpolitica1
tolerance beyond the rather simple, abstractly categorical, and reductionist distinction
between elites and non-elites that is at the core of much tolerance research.
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Q Taylor & Francis
[8]
Practice and Paradox:
Deconstructing Neutrality
in Mediation
Sara Cobb and Janet Rifkin
Based on our research on the practice of neutrality in mediation, we decon-
struct the practice of neutrality in mediation by examining both the discourse
of neutrality operant in mediators' accounts of their practice and the dis-
course processes in mediation sessions. We identify three key terms-justice,
power, and ideology--as a system of terms central to the rhetoric of neutral-
ity. We challenge existing definitions of neutrality in and by analyzing the
discourse processes in mediation practice, which allows for an alternative de-
scription of neutrality as a practice in discourse.
INTRODUCTION
"Neutrality" is a concept central to the theory and practice of media·
tion; as the antidote against bias, neutrality functions to preserve a com·
munication context in which grievances can be voiced, claims to justice
made, and agreements mutually constructed. "Neutrality" appears as cen·
tral to the maintenance of any speaking context where the material conse·
quences that follow from speaking-restitution for damages, mandated
therapy, child support payments-may reduce the possibility that griev-
ances will be voiced and differences addressed. 1 Yet, central as it is, neu-
Sara Cobb is professor in the Department of Communication, University of

Connecticut. Ph.D. 1988, University of Massachusetts, Amherst. Janet Rifkin is a
professor in the Department of Legal Studies, University of Massachusetts. J.D. 1972, New
York University School of Law.
This research was supported by a grant from the Fund for Research on Dispute
Resolution. The opinions expressed herein do not necessarily reflect the position of the
Fund.
1. Elsewhere we have referred to neutrality as a "discourse of origin" for law as well as
36 LAW AND SOCIAL INQUIRY
trality remains undefined in the professional organizations (among them,

the Society for Professionals in Dispute Resolution-sPIDR) and under·
researched in scholarly circles; while the Ethical Code of SPIDR addresses
the mediators' responsibility to be neutral, the admonishment to be so
does not terminate in practical guidelines. 2
We argue here that the absence of practical guidelines for the practice
of neutrality is a function of the rhetoric of neutrality; we examine current
definitions of neutrality in the field of mediation and discuss the implica·
tions of these definitions for practice. From this critique, we offer an alter·
native definition of neutrality as a practice in discourse.
The Problem
Symptomatically, no empirical studies document the practice of neu·

trality in mediation sessions. Some studies attempt to document the pres-
ence or absence of neutrality by relying on mediator reports of their
intentions, 3 by measuring participant satisfaction, 4 or by evaluating media·
tor behavior5 and/or mediation outcome.6 Except for Kolb 7 and Great•
ADR. Sara Cobb & Janet Rifkin, "Neutrality as a Discursive Practice: The Construction
and Transformation of Narratives in Community Mediation," inS. Silbey & A. Sarat, eds.,
11 Snulies in Law, Politics and Society (Greenwich, Conn.: JAI Press, 1991) ("Cobb & Rifkin,
'Neutrality' "). Here we are using Foucault's archeological metaphor to make the point that
neutrality is a discourse which has legitimized the development of law and law-related prac·
tices by providing these practices with "objective" positions from which judgments can be
made or procedural guidelines enforced. Michel Foucault, The Archeology of Knowledge: Dis·
course on Language (New York: Pantheon Books, 1972). For a more thorough discussion on
the relationship between law and objectivism and the associated base of pluralism see David
Trubek, "Where the Action Is: Critical Legal Studies and Empiricism," 36 Stan. L Re11. 575
(1984); John Brigham & Christine Harrington, "Realism and Its Consequences," 17 Int'l ].
Soc. L 41 (1989); Christine Harrington, Shadow Justice: The Ideology and Institutionalization of
AltematitJeS to Court (Westport, Conn.: Greenwood Press, 1985) ("Harrington, Sluulow Jus·
tice"); Susan Silbey & Austin Sarat, "Dispute Processing in Law and Legal Scholarship:
From Institutional Critique to the Reconstitution of the Judicial Subject," 66 Denver U. L
Re11. 437 (1989); J. Forester, "Envisioning the Politics of Public Sector Dispute Resolution"
(presented to the Law & Society Association, Berkeley, Cal., 1990) ("Forester, 'Public Sec·
tor Dispute Resolution' ").
2. See Society for Professional Dispute Resolution, Ethical Standards of Professional Re·
sponsibility (Washington, D.C.: the Society, 1986) ("SPIDR, Ethical Standards").
3. Joel Handler, The Conditions of Discretion: Autonomy, Community and Bureaucracy
(New York: Russell Sage Foundation, 1986) ("Handler, Conditions of Discretion").
4. Peter Carnevale & R. Pegnetter, "The Selection of Mediator Tactics in Public Sec·
tor Disputes: A Contingency Analysis," 41 J. Soc. Issues 65 (1985).
5. Deborah Kolb, "To be a Mediator: Expressive Tactics in Mediation," 41 J, Soc.
Issues 11 (1985); D. Shapiro, R. Drieghe, & Jean Brett, "Mediator Behavior and the Out·
come of Mediation," 41 J. Soc. Issues 101 (1985); David Greatbatch & Robert Dingwall,
"Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce
Mediators," 23 Law & Soc':y Rw. 592 (1989) ("Greatbatch & Dingwall, 'Selective
Facilitation' ").
6. Nancy Thoennes & Jessica Pearson, "Predicting Outcomes in Divorce Mediation:
The Influence of People and Process," 41 J. Soc. Issues 115 (1985).
7. Kolb, 41 J. Soc. Issues (cited in note 5).
Practice and Paradox 37
batch and Dingwall, 8 whose research is based on empirical analysis of talk

in sessions, most of this work relies on subjective inference to document the
practice of neutrality; that is, these studies lean heavily on disputants' per·
ceptions of the mediator as "neutral."
The relative absence of any research on the practice of neutrality sug-
gests that neutrality functions like a folk concept, talked, practiced, and
researched on the basis of tacit and local understandings, contained in
(and by) a rhetoric about power and conflict. This rhetoric, in turn, con·
tributes to the reconfirmation of these same tacit understandings about
neutrality. Thus, like other folk concepts, neutrality is both "transparent"
and "opaque": transparent because it operates on the basis of widely held
assumptions about power and conflict, and opaque because it is exceed-
ingly difficult to raise questions about the nature and practice of neutrality
from within this consensus.
To make neutrality less opaque, we shall attempt to make it less trans·
parent by examining the consensus on which neutrality is based. This
examination is part of a larger research project on the practice of neutral-
ity in mediation. 9 We here offer a deconstruction of neutrality--examin·
ing the meaning of neutrality as emergent from a set of interrelated,
interdependent terms: justice, power, and ideology. 10 We offer a post·
structural perspective on the mediation process, 11 one that addresses the
8. Greatbatch & Dingwall, "Selective Facilitation" (cited in note 5).

9. We collected more than 30 mediation sessions from community mediation programs
in western Massachusetts. Using discourse analysis, we have examined neutrality as a discur·
sive practice, specifically as the management of stories. In addition to this data set, we
interviewed 15 mediators, bringing to the surface the definitions, metaphors, semantic
frames, and narrative content that are specific to the way mediators "talk" neutrality.
10. The interrelationship between these terms is consistent with Foucault's focus on
the "system of relations" in discourse. Michel Foucault, Power and Knowledge (New York:
Pantheon Books, 1977) ("Foucault, Power and Knowledge"). Write Dreyfus and Rabinow:
Whatever is meant by discourse "establishing" a "system of relations," it should be
clear that in Archeology the assertion that discourse is autonomous covers more than the
claim that discourse can be made intelligible in its own terms. It is rather the extreme
and interesting claim that discourse unifies a whole system of practices, and that it is
only in terms of this discursive unity that the various social, political, economic, tech·
nological, and pedagogical factors come together and function in a coherent way. This
claim is striking because one might have thought that the institutional practices would
have to be already coherent and unified in order for unified discursive practices to
develop, or at least, that there would have to be some common cultural practices under·
lying both the institutional and discursive practices in order for these sets of practices
to mesh with each other.
Hubert Dreyfus & Paul Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics 65
(Brighton, Eng.: Harvestor, 1982). We are claiming that neutrality is a discursive unity
made up of this constellation of terms.
11. By "poststructural" we refer to those approaches to social science that focus on the
discursive structures which organize and constrain the interpretation of any text and cut the
text loose from any intentions or instructions of the author. Paul Ricoeur, Hermeneutics and
the Human Sciences (New York: Cambridge University Press, 1981 ); Michael Shapiro, Lan·
guage and Politics (New York: New York University Press, 1984) ("Shapiro, Language"); id.,
The Politics of Representation; Writing Practices in Biography, Photography and Policy Analysis

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Consciousness and Ideology

The International Library of Essays in Law and Society

Titles in the Series:

Law and Religion Law and Social Movements

Rhetoric of Law Law and Poverty

Published 2016 by Routledge

Routledge is an imprint of the Taylor & Francis Group, an informa business

British Library Cataloguing in Publication Data

Library of Congress Control Number: 2006908731

ISBN 9780754624967 (hbk)

PART I CONSCIOUSNESS AND IDEOLOGY IN SOCIO-LEGAL STUDIES

PART II CONCEPTUAL PRACTICES OF IDEOLOGY AND CONSCIOUSNESS

2 Timothy Mitchell (1990), 'Everyday Metaphors of Power', Theory and Society,

PART III DISCURSIVE PRACTICES OF IDEOLOGY AND CONSCIOUSNESS

5 Martha Merrill Umphrey (1999), 'The Dialogics ofLegal Meaning: Spectacular

PART IV LEGAL CONSCIOUSNESS, RESISTANCE AND THE EVERYDAY

10 Laura Beth Nielsen (2000), 'Situating Legal Consciousness: Experiences and

Name Index 487

A Brief History of Ideology, Hegemony and Consciousness

As thus conceived in nineteenth-century social theory, consciousness and ideology were

Plan of the Book

The Conceptual Practice of Ideology

Discursive Practices of Ideology and Consciousness

Legal Consciousness, Resistance and the Everyday

Three conceptual moves surrounding ideology/hegemony have had profound consequences

Nielsen's 'Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens

• This paper was originally delivered as the George Lurcy lecture at

12 THE IDEOLOGY OF LAW

There is an extensive literature that refers variously to

II. MARXISM AND IDEOLOGY

3 To undertake this task systematically would require a thorough study

14 THE IDEOLOGY OF LAW

has sought to liberate Marxism from the ossification of

of the concept, and despite the attractiveness of the idea of

A. Ideology and Human Subjectivity

16 THE IDEOLOGY OF LAW

not merely as an external mechanism of regulation but as a

B. The Determination of the Content of Ideology

is realized in and through social relations. At the same time

18 THE IDEOLOGY OF LAW

legitimating functions and treat them as open questions

Distinguishing among these three different issues within

simply corresponds to a greater or lesser extent to this given

III. THE IDEOLOGICAL DIMENSIONS OF LAW

20 THE IDEOLOGY OF LAW

advanced above have been fruitfully employed, and I shall

A. Mystification, Distortion, and All That

terms are used in such a way as to imply a theory about the

4 For a stimulating discussion of the public-private dichotomy as it

22 THE IDEOLOGY OF LAW

B. The Form of Law

The second I call Form Determination. This perspective

24 THE IDEOLOGY OF LAW

Marxist theory, which focus on the law as an instrument of the

there was no single "capitalist" form of law-whether

26 THE IDEOLOGY OF LAW

I have not included in my definition of "the form of law"

C The Function and Effectivity of Legal Ideology

28 THE IDEOLOGY OF LAW

pronounce this a "function" fulfilled by law during a particular

doctrinal coherence and on the variable operation of different

30 THE IDEOLOGY OF LAW

The first is a tendency to overemphasize the independence or