In remembrance of Professor Catharine Wells and her impact on BC Law and the broader legal community, the Law School hosted the second annual Catharine Wells Memorial Lecture in Jurisprudence on March 15. Susan Silbey, the Leon and Anne Goldberg Professor of Humanities, and Professor of Sociology and Anthropology at the Massachusetts Institute of Technology, delivered a lecture on the rule of law and other institutions, exploring universal aspirations and pragmatic adaptations—and in doing so honored Wells’ past work, highlighting in particular one of her early articles, “Situated Decisionmaking,” and her book on Oliver Wendell Holmes Jr.
In her lecture, Silbey explored two fundamental questions: What explains the longevity and durability of the rule of law, and what explains change in the law over time. To answer these enduring questions, Silbey looked at how law works from the perspective of ordinary citizens as captured in extensive fieldwork over a period of years. “My contribution is to study the law from the ground up,” Silbey said. “How do we enable the law to coordinate our lives?”
Her lecture focused on synthesizing this perspective of law into three stories of legality told by lay people: before the law, with the law, and against the law. Each story views the law through a different lens, as objective and broad principles, as a tool to be used as if in a game to be won or lost, and as a power play where legality is to be resisted, opposed, or circumvented. “These three stories are inescapably connected,” she explained, and through them legal stability as well as adaptive change occurs in society. Together, they explain the rule of law not as a jurisprudential concept but as the bottom-up outcome of the lived experiences of the subjects of the legal order.
This understanding came after years of research and interviews with regular citizens. Silbey studied the relationship between law on the books and law in action. She asked, “How can the law in practice be so different from what’s written and still have so much allegiance?” It wasn’t law in the extremes of anomie and over enforcement that drew Silbey’s attention, but rather the understudied middle, where the law is followed by ordinary people. Silbey sought to understand how these citizens actually viewed the law, particularly given their limited professional experience within it. “Only 14 percent of citizens bring cases to legal actors. Even jury duty doesn’t provide much experience,” Silbey said. “What are the laws actually doing?”
It was in this area that Silbey had a eureka moment. Rather than using the two most common research methods, over generalizing surveys and thick ethnographies, she decided to split the difference between both, conducting long conversational interviews that didn’t ask about the law outright. Instead, she asked about events in each interviewee’s life, from parking and consumer experiences, to schools and governments. “I study the way the law works in its presence and force in everyday life. I study how the law endures,” she said. After 433 interviews, over the course of three to four years, the three narratives emerged.
“The three stories are inseparable, a common ideological pattern. An ahistorical, generalized, abstract ideal [before the law] is brought to ground and made practical through its particular local practices [with the law],” Silbey concluded. “A third story [against the law] acknowledges contradictions, offers a safety valve, and promotes social change.”
According to Silbey, polyvocality and hybridity are part of what account for institutional longevity. The institution of law is an objective phenomena, not just moral or subjective, and the hegemony of law is sustained by the plurality of its representations. “To be powerful,” Silbey said, “the law must be experienced all over.”