Legal Protection versus Legal Consciousness on Rights: The

Changing Perspective in Law and Society Research

Muhammad Helmy Hakim

, Noryamin Aini

, Khoiruddin Nasution

Faculty of Sharia, Antasari State Islamic University, Indonesia

Department of Legal Sciences, Syarif Hidayatullah State Islamic University, Indonesia

Islmic Family Law, Sunan Kalijaga State Islamic University, Indonesia

Keywords: Instrumental Law, Constitutive law, Legal Protection, Legal Consciousness, Rights, Litigation

Abstract: The changing Perspective in Law and Society Research: From Legal Protection into Legal Consciousness

Muhammad Helmy Hakim Abstract This article discusses the important role of historical, cultural, social, and

attitudinal aspects in the study of law. There has been a shift from instrumental law to constitutive law. While

instrumental law considers law beyond the social and cultural spheres, constitutive law integrally embraces

law, politics, ideology, and action. Legal consciousness is an important asset for marginalised people who are

at high risk of discriminative treatments in occupational and social life. Not only will they are legally aware

of their rights and obligations at works, they will have adequate knowledge of where and how to name, blame,

and claim in case mistreatment do occur. Legally proficient will allow them build legal protection which is

not adequately provided by the authorized bodies.

1 INTRODUCTION

Nowadays, many countries in the world have

established a complex system and structure of laws

and institutions to protect the interest of the people,

particularly the marginalised ones in the employment

sector. This legal protection model has a broader

significance and impact in legal theory. It also

initiates, reflects and structures assumptions in

dominant research paradigms in law and society.

Even this model and its critique have been applied to

other areas of law in wider coverages. (Bumiller,

1987)

From the legal protection model perspective, the

law is an authoritative and effective instrument that

offers victims with a tool to force perpetrators to

comply with legal rules. This model assumes that

those who have suffered injuries will recognize their

harms, and invoke the law through litigation or

reconciliation. In brief, they assume that those in the

protected class are able and convinced to bear these

burdens. (Bumiller, 1987) This kind of strategy is

called as litigious policies, (Burke, 2002) or

complaint-driven enforcement model,

((Organization), 2001) where the enforcement relies

on individuals bringing their rights of action.

However, strategies of equal protection may

inadequately deliver the burdens imposed on

marginalised people because they accept the

authoritative discourse of law rather than inquiring

the compatibility of legal rules with their legal

conception.

The proponents of legal consciousness argue that

litigation is only one of the many avenues that

disputants have in their catalogue of choices.

Although the judiciary is believed to monopolize the

enforcement of legal norms, it is not the only source

of normative messages and legal practices in society.

Courts are not even the prominent institutions that

handle the majority of legal conflicts and neither

occupies the centre of legal life. On the contrary, only

a minimal fraction of disputes that we can label as

legal has entered the judiciary. From that number, it

is really difficult to know how many are actually

resolved through litigatious judiciary process.

(Gomez, 2007) Over thirty years ago, Galanter et.al

pointed out that very few cases of dispute were

resolved through courts. (Bliss Cartwright, 1974)

(Galanter, 1975) This minimal resolution was even

smaller than the number of cases the court was

supposed to deal with, the fraction of which was

much smaller than the actual cases of dispute.

(Galanter, 1983) (Galanter, 1986) (Galanter, 1987)

As a matter of fact, it is now trite to recapitulate

that the modern justice system through aggressive

1012

Hakim, M., Aini, N. and Nasution, K.

Legal Protection versus Legal Consciousness on Rights: The Changing Perspective in Law and Society Research.

DOI: 10.5220/0009922110121018

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1012-1018

ISBN: 978-989-758-458-9

prosecution and legislation of punitive laws against

batterers, has failed to respond adequately to crime in

general, and to marginalised people in particular.

(Hagel, 1977) Many researches showed that a strong

legal protection really makes a difference, but they

also displayed that even in the United States of

America where legal protection is strong, the rights of

some victims are not afforded. (Report, 2001).

However, despite the widespread adoption and

adaptation of legal protection, the implementation of

such protection and its impact on victims have not

been widely studied. In other words, this kind of

research might be considered as the bottom-up

approach, which is commonly defined in sociology of

law literature as the study of critical legal

consciousness.

This study will provide a brief review of two

bodies of research concerning the interconnection and

intersection of law and social issues. First, this paper

reviews the changing perspective of law and society

research from an instrumental view of law to the view

of law as an integral part of society. This more

expansive view of the role of law in society has led to

the legal consciousness. Next, it reviews some of the

innovative work of legal consciousness scholarship in

the study of law and society. In a broader aim, this

paper will critically assess the adequacy of legal

theory to protect, serve and deliver the interest of

socially and economically disadvantaged people in

fighting for their right and fortunes.

2 INSTRUMENTAL AND

CONSTITUTIVE

PERSPECTIVES

There has been a shift in the law and society research

to comprehend the rule of law in post-modern epoch

from instrumental to constitutive perspective

especially in the United States in the last forty

decades. The former treats law as a separate entity

and thus autonomous from society and social life,

while the latter identifies and recognizes the existence

of different competing forces that contribute in

shaping social life and normative system.

Constitutive perspective puts law in the

interconnection to, and embeddedness in different

other fields to allow holistic consideration of law-

influencing cultural and social aspects.

Sarat and Kearns introduced these two different

instrumental and constitutive perspectives in this area

of socio-legal research. (Kearns, 1995) Although

these two perspectives are in similar way favouring

law in studying society, they hold opposing views by

which law affects society: whether by imposing

external sanctions or by shaping internal meanings.

However, subsequently, they are likely to fail to

notice the variety of ways in which society responds

to law, occasionally by ignoring, reconstructing, or

using it in unusual and unanticipated ways.

These two perspectives, that is, the instrumental

and constitutive, represent two basic views of the

dynamic relationship between law and society.

Instrumentalist scholars, which see law as different

from, and acting on society, focus on legal norms,

legal rules, and legal actors. This separation has been

an attempt to make out the power of law as an

engineering tool for creating or supporting social

change.

On the other hand, instrumentalist tries to “...

search for the conditions under which law is effective,

that is, when legislation or judicial decisions can be

counted on to guide behaviour or produce social

changes in desired and recommended ways.”

(Kearns, 1995) In short, the instrumentalism

emphasizes sharp distinction between legal standards

on the one hand, and non-legal human activities, on

the other. It then hypothesizes the effectiveness of the

legal standard upon society.

On the other hand, the constitutive perspective

assumes that social life is run and operates orderly

through with the rule of law. In other words, “law

shapes society from the inside out, by providing the

principal categories that make social life seem

natural, normal, cohesive, and coherent.” (Kearns,

1995)

3 SCHEINGOLD IS AGAINST

THE INSTRUMENTALISM

To begin with, beyond the deficiency and the

advantage of instrumentalism, many social scholars

contend against it. For instance, Scheingold argues

against the idea of instrumentalism which assumes

that legal standard with litigation and courts decisions

can result in an effective social change. (Scheingold,

2007) He proposes that declaration of rights from

courts has been the focus of a great number of law

reformers. Effective declaration realizes these rights

which lead to equivalently meaningful change. Put in

different words, “the myth of rights is directly related

to litigation, rights, and remedies with social change.”

(Scheingold, 2007) The underlying ideology is that

“the American political order indeed takes similar

Legal Protection versus Legal Consciousness on Rights: The Changing Perspective in Law and Society Research

1013

patterns of rights and obligations specified in the

Constitution.” (Scheingold, 2007)

Different from sholars supporting the idea of

instrumentalism in approaching law in practical

arena, Scheingold proposes the legal paradigm which

views human interaction largely about rules and

rights which dominates the ideology of the myth of

rights, and mischaracterizes the interplay of legal,

political and social forces. Surely these views have, at

least until lately, dominated the literature on law and

politics in the United States.

As a matter of fact, Scheingold rejects the myth of

rights and, he further proposes the constitutive

understanding of law and legal mobilization as he

moves from the myth of rights into his discussion of

the political significance of the ideology of rights. He

puts forward the concept of the politics of rights that

“the politics of rights implies a much more

comprehensive assessment which includes but

transcends the simple straight-line projection from

judicial decision to compliance.” (Scheingold, 2007)

Scheingold is likely sceptical of the emphasis on

litigation as a tool for redistributing power. He notes

the tendency of law and politics to reinforce the status

quo, embedded as they are in the existing power

structures. Nevertheless, he asserts that the ideology

of rights can play a significant role in mobilizing

action. “The myth of rights provides political ideals

[which] influence the behaviour of government and

private citizens. The politics of rights is, in short,

concerned with the interplay between ideology and

socio-political action in American politics.”

(Scheingold, 2007)

It is the recognition of the relationship between

law, politics, ideology and action that characterizes

the constitutive view of law and society. Sarat and

Kearns highlight that constitutive perspective of law

decline the instrumentalist picture of law as outside to

social practices. They attempt to draw the way legal

power and legal forms exist in social relations.

Constitutive perspective claims that instrumentalism

brings about a falsified impression of the role of law

in everyday life. By centering on law as a distinct

engineering tool or efforts of law to change

behaviour, instrumentalists diverts attention from the

deep, often invisible, but pervasive effects of legal

concepts on social practices. (Sarat, 1990).

4 BUMILLER REFUSES LEGAL

PROTECTION MODEL

In opposition to Scheingold, Bumiller shows the

seeming failure of anti-discrimination doctrine.

(Bumiller, 1988) She contradicts the instrumental

concept of law and on the contrary examines the

individual attitudes and behaviour which can serve to

oppose the apparent goal of civil rights legislation and

litigation. She states that the traditional model of legal

protection, which supposes law to be a powerful tool

to end discriminatory practices, is flawed. Why?

because it fails to take into account the way individual

actions and attitudes are influenced by law.

Bumiller takes a firm stand that the view the

primacy of the legal order produces the illusion that

law is a source of power and authority disconnected

from other power structures in society. In fact, the

deep logic of the law does not reflect the complex

social reality of discrimination in society, but rather

restricts and reshifts legal resolution to social

problems appropriate for litigation. (Bumiller, 1988)

Bumiller argues that the 1964 US Act of Civil

Rights, and the subsequent legislation generally have

failed to rectify earlier forms of discrimination,

injustice, and inequality for marginalized people. She

notes that the traditional wisdom generally attributes

these failures to inadequate resources, entrenched

cultural biases, and the slow progress in attaining real

economic and social gains. On the contrary, Bumiller

says that the model of legal protection that forms the

basis for civil rights law itself unfortunately

discourages social victims from helping and

emancipating themselves in oppressive conditions.

Bumiller even further argues that protective

legislation may serve to perpetuate patterns of

behaviour (among both victims and perpetrators) that

maintain discriminatory practices. Modern law is said

to embody and reproduce a socially constructed,

dehumanized victim. Bumiller further proposes that

there is a current proliferation of antidiscrimination

strategies. This proliferation is seen as a coherent

extension of the universalization of rights, which is

itself a by-product of the civil rights model of legal

protection. She concludes that “by including all

groups, it further dilutes the benefits received by the

historically most disadvantaged groups.” (Bumiller,

1988)

Bumiller refuses the traditional model of legal

protection. In contrast, he relies on stories and

experiences told by victims of discrimination to

explore the complications of anti-discrimination law.

In order to better understand the relationship between

law and social change, she proposes and creates a

ICRI 2018 - International Conference Recent Innovation

1014

paradigm for legal consciousness research by

opposing the perspectives and experiences of

individuals against the traditional instrumentalist

view of legal protection especially on civil rights.

Bumiller’s position on the role of law deduces from

Foucault’s explanation of law and social control. She

notes that Foucault’s conception of law and ideology

moves us away from the traditional view of anti-

discrimination law as a command which is directed at

its perpetrators to acknowledgement of the law as a

form of knowledge and power that shapes its subjects.

The Foucault’s stance on law brings up the inquiry of

how law practices its authority on victims and creates

victims views of themselves and their position in

conceptualizing the notion and entity of rights.

(Bumiller, 1988)

The essential claim of the constitutive approach as

proposed by Bumiller to the study of law is the

assertion that “law exercises its power by less obvious

means than can be discerned from formal and visible

decision making in court.” (Bumiller, 1988) In this

point, Bumiller detects evidence of the mutual and

dynamic nature of law as constitutive of social

relations and the importance of examining the gap

between legal doctrine and law in everyday life. She

indeed affirms the power of legal ideas and concepts

to influence social relationships even in the absence

of a legal claim. She points out that the introduction

of legal themes may shape behaviour at all stages of

the conflict –from its creation to its settlement. The

situation is gradually metamorphosed by formally the

introduction of law, even if the parties do not talk to

lawyers or take the case to a legal forum. (Comaroff,

1985)

The theoretical change from the instrumental view

of law to the constitutive view of law leads

scholarship toward an acknowledgement of the

importance of investigating and analysing the ways

that law comes out of, and is constituted by specific

historical, cultural, social situations and attitudes. The

emerging view of law from very sociological

perspective fertilizes the development of socio-legal

research of law in latest decades.

The change in the understanding of the meaning

of law needs a significant change in the way of the

study toward the dynamic relationship between law

and society, from an initial focus on institutions to

individuals; from the text of law to the law of text

(McVeigh, 1991) to better understand human legal

behaviour in everyday life. To be committed to this

perspective, Bumiller maintains the importance of

exploring and cultivating empirical data from

individual subjects about their thoughts and

experiences with law. “An important premise of her

perspective on this field of socio-leal research,

therefore, is that neither the potentialities nor the

troubles deriving from social conflict can be fully

understood outside the changes of an individual life.”

(Comaroff, 1985)

It is appropriately to note that constitutive studies

of law have extended to the understanding that law is

more than a set of rules and procedures which are

rigidly defined in the book of law. Rather, law

constitutes a belief system which is imbedded in, and

perpetuates a certain power structure. It is the study

of law as a set of beliefs, and the significances of

those beliefs that forms the basis of legal

consciousness research.

5 DISCOURSE OF LEGAL

CONSCIOUSNESS

Legal consciousness has been an important topic

in socio-legal research because it represents the

intersection of law as an institutional force and

individuals as legal agents. Traditionally, the

sociological notion of law has been related with the

social legitimacy of law which finally is rooted in

individuals' belief in and adoption of legal order. This

point brings the social basis into very important

account on law-making and law enforcement. (Unger,

1995) However, this initial traditional

conceptualization of legal consciousness which

emphasizes on the acceptance of official power by

individuals has later on moved away into the notions

of justice and rights that people convey in their minds

and practice in their every-day life. Hence, scholars

have begun to investigate whether and why people

invoke the law in disputes, (Merry, 1992) or in social

movements aimed at broader social change. (Merry,

1990)

Merry, a prominent legal anthropologist, defines

consciousness as people’s conception of the natural

and normal method of work accomplishment,

habitual patterns of talk and action, and common

sense in understanding of the world. (Merry, 1990)

Further she asserts that consciousness is not only the

realm of “deliberate, intentional action but also that

of habitual action and practice.” (Merry, 1990)

In line to Merry’s contention, Ewick and Silbey

define consciousness as the part of a reciprocal

process through the patterned, stabilized, and

objectified meanings given by individuals to their

world. In this frame, the already institutionalized

meaning becomes part of the material and discursive

systems to constitute, limit and constrain the making

Legal Protection versus Legal Consciousness on Rights: The Changing Perspective in Law and Society Research

1015

of new meanings in future time. (Silbey, 1998)

Nielsen puts the idea proposed by Ewick and Silbey

as the way by which law works in it logic and system.

(Nielsen, 1995) In other words, legal consciousness

refers to the way people think about, internalize,

interpret and bring the law into practice in everyday

activity. This includes the prevailing norms, day-by-

day practices, and commonly adopted and adapted

ways of legal problem solving. Put differently, this

end results directly from legally- and ideologically-

related experiences. (Nielsen, 1995)

In relation to the notion of consciousness, Max

Weber in his classical work, has introduced “the

subjective meaning-complex of action” which can be

implemented to the intersection of social agency and

legal consciousness. (Weber, 1946) Opposed to

Marx, Weber contends that in a mutual scheme,

culture can influence agency, while agency can

interchangeably influence culture. Weber describes

the subjective interpretation of action as an effect to

understand human behaviour in terms of “the

concepts of collective entities.” (Weber, 1946) This

suggests that for Weber, a dual character of

consciousness and action in which thoughts or

concepts “have a meaning in the minds of individual

persons, partly as of something actually existing,

partly as something with normative authority.”

(Weber, 1946)

It is important to note that consciousness is

subjective. It is the product of an interaction between

the observer and the observed. (Merry, 1990) Jean

Comaroff defines consciousness as “inherent in the

daily-life practical constitution and is integrated in the

process in which external social and cultural factors

have constituted the subject.” (Comaroff, 1985)

Consciousness may appear in subtle and different

ways of how people act and speak and what their

utterance contain. (Comaroff, 1991; Comaroff, 1991)

This becomes an integrated part of practical

knowledge to which people refer when doing things.

The construct of consciousness is in fact much

more dynamic and complicated than a mere social

entity. This “type of social practice” (Silbey, 1998)

assigns such meanings to social structures, which is

not an end. The assigned meaning will undergo

further refinement, reproduction, and development

along individual experience that occurs within the

social structures by which one’s live is defined. Of

equal importance, consciousness develops and

changes over times with contradictory experiences.

People question what they are doing and shift

directions if it appears that their way of acting either

is not working or contradicts what happens to them.

(Merry, 1990)

Time has played an important role in the process

of individual’s consciousness changes. One’s

consciousness is likely to change along with their

experience in social process. Such this change in

consciousness constitutes a great interaction of social

and structural entities. Comprehension about how

consciousness changes will help a systematic

discussion of legal consciousness. Nielsen asserts that

consciousness, is simultaneously created and

communicated; it is contingent, meaning that it

changes based on the knowledge and experiences of

individuals, as well as context. (Nielsen, 2009)

Legal consciousness refers to “how people

understand and use the law” and “participate in

legality construction process.” (Merry, 1990; Silbey,

1998) Recently many legal consciousness studies

have merely emphasized on law conceptualization

and its impacts on the individuals’ daily lives.

(Larson, 2004) They reveal the dynamic nature of

legal consciousness concept, while to considerable

extent paying less attention to social-cultural contexts

in structuring and framing socio-legal behaviour.

These studies argue that it is not the external

enforcement that counts in legal consciousness

establishment, but rather, it is an internally learned

process through which individuals gain their legal

consciousness.

They are in active engagement to form their

individual specific legal consciousness. First, social

consciousness becomes the foundation of individual

legal consciousness. Second, with legal experiences

and reactions they develop their legal consciousness.

The dynamic nature of legal consciousness construct

and its socially related process are manifested in

words or actions, a multifaceted, contradictory, and

variable legal consciousness.” (Silbey, 1995)

Establishment of legal consciousness especially at

the phase of law-making and law enforcement does

not stand alone. Different aspects play a typical and

distinctive role in the establishment of legal

consciousness. They are, among others, that is, the

perceptions of law-making bodies, the court system,

law enforcement and other “meanings, sources of

authority, and cultural practices commonly

recognized as legal.” (Silbey, 1998) As it is common

in other schemas, legality is not exclusively inherent

in individual's ideas and attitudes. To be always vital,

individuals and groups have to continually produce,

work, invoke, and deploy it.” (Silbey, 1998) As

suggested by some legal consciousness studies, legal

idea may be pushed and pulled, which implies the

texture of law in our everyday existence in order to

construct legality. (Barclay, 2003)

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1016

Law may be pulled to construct and restrict what

people may select, act and decide. The restriction is

elaborated into the fixedly elaborated regulations,

conduct-prohibition codes, and social norms. They

are all by choice designed to reserve the already

arranged power and order. Through their familiarity

with these codes, lay people will use them to adopt,

adapt, and obey the formal regulations. Such this

acceptance by the people has opened a way for the

law to shape the everyday life of the people and rule

some courses of action without which they would

have been taken otherwise. In this way, law has

created quasi natural, normal, cohesive, and coherent

society based on the principal categories.” (Kearns,

1995)

At the same time, law may be pushed by

individuals’ own readings of law.” This kind of

dynamic process has influenced and enriched the

variants of legality. In this perspective, law indeed

dynamically develops; evolves, and to be adapted.

Through legality context in daily life, ordinary people

contribute to shape and assign meaning to an

“abstract but binding form.” (Barclay, 2003) The

legality enacted every day in turn, will result in the

establishment of a theory for legal, institutional, and

social changes. Any decision that may have impacts

on the law will result in new meaning and a new legal

claim. Therefore, while it restricts what action

individuals may have taken, opportunities of

redefinition of and challenge against the restraints are

widely open. (Silbey, 1998)

With legality, individuals may also anticipate on

the vast resources of the state by mobilizing the law.

The accumulated of individual’s needs for legal

system is likely to result in great effects on other

people through the creation of new legal rights and

novel legal claims. (Zemans, n.d.) Thus, in spite of

the fact that law has colonized everyday existence

through oppression and inequality, legality provides

a means of resistance. (March, 1995; Kearns, 1995;

Merry, 1995; Merry, 1995) Legal consciousness

studies have revealed that the law provides schemes

and frames to construct the meaning of what people

have experienced. (Silbey, 1992; Merry, 1990)

Using the existing legal concepts and resources,

people assign and restructure such meaning to their

disputes with their neighbours, their family, even with

their experiences with street harassment. (Merry,

1990) Studies of legal consciousness deals with

“how, where, and with what effect law is produced

and reproduced in and through commonplace social

interactions within neighbourhoods, workplaces,

families, schools, community organizations, publics,

and the like.” (Silbey, 1998) This view of law is a

more recent idea that attempts to bring law into more

practical level at everyday life.

6 CONCLUDING REMARKS

Considering the important role of historical, cultural,

social, and attitudinal aspects in the study of law,

there has been a shift from instrumental law to

constitutive law. While instrumental law considers

law beyond the social and cultural spheres, on the

other hand, constitutive law integrally embraces and

put law, politics, ideology, and action into a dynamic

relationship.

Along the line of the notion discussed previously,

it is quite that legal consciousness is an important

asset for marginalised people who are at high risk of

discriminative treatments in social, political and

occupational life. Not only will they be legally aware

of their rights and obligations at works, they will have

adequate knowledge of where and how to name,

blame, and claim in case mistreatment do occur.

Being legally proficient will allow them build legal

protection which is not adequately provided by the

authorized bodies.

This shift of comprehending legal consciousness

has to be followed hand in hand by the political and

academic treatment of law in a more practical level.

The later point is in equal important to respond the

emerging sociological perspective of law that views

law socially constructed.

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