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A Conversation Among Scholars of Legal Consciousness

Setting: The Mercury Café in Chicago. This café is extremely spacious, yet warm, and

hosts a number of art openings, poetry readings, and social events. They also serve fair-

trade and organic coffee, plus bakery and other food items from local producers. In other

words, it’s a perfect space for a small group to get together to discuss philosophy and

social issues.

Authors/Researchers Present: Patricia Ewick & Susan Silbey, Laura Beth Nielsen, Idit

Kostiner, Sally Engle Merry, Michael W. McCann & Tracey March, and Kristin

Bulmiller. All authors have done considerable research on legal consciousness among

everyday people, and have distinctive voices on the role of law in the lives of these

people. They’ve gathered to discuss how legal consciousness can help us understand

social activism. The social activism in this case is the fight for or against abortion rights,

particularly in light of the recent South Dakota bill.

Idit Kostiner (IK): So, South Dakota! What is going on there, my friends? Governor

Mike Rounds signed into law a bill outlawing all abortions, even those in the case of rape

or incest, with a provision only to save the life of the mother.

Patricia Ewick & Susan Silbey (PESS): Well it would seem superficially that the

people of South Dakota weren’t really thinking of the law, hey? They weren’t really

aware of what the laws were for abortion. They just went about their lives, not too aware

that the anti-abortion side were fighting for this bill to be passed. And then one day –

boom! – their rights were taken from them.

Michael W. McCann & Tracey March (MMTM): It’s really a case of ideology

trumping legal consciousness, isn’t it? I mean, it comes down to power here. Who has it

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and who doesn’t. Surely abortion rights activists and regular citizens alike were aware of

the way South Dakota was heading in its abortion laws.

Sally Engle Merry (SEM): Oh, I don’t think so! Sure, activists try to keep themselves

aware of the latest bills being proposed, fights being fought in the courts, and other issues

related to their area of activism, but with regular citizens, they often have very few

resources available to them to find out about such legal matters. And even if they are

vaguely aware of such a large political issue being contested in the courts, how are they

supposed to act on it?

Laura Beth Nielsen (LBN): Yeah, particularly a lot of working-class and minority

women just don’t feel empowered enough to fight against, or even speak out against

injustices they see. If a teenage girl becomes pregnant, they just deal with it, whether it

be through helping the girl get an abortion, helping her through pregnancy, putting the

child up for adoption, or helping the girl raise the child. Or they just try to brush the

issue under the carpet; ignore it. Most of these people just cannot see big picture. They

don’t think changing laws is really possible, nor do they even know how to go about

getting justice in their own community, really.

Kristin Bulmiller (KB): Let’s not paint a picture of the working-class as victims,

though. Historically, there have always been legally aware activists within the most

disadvantaged segments of society. They’ve worked hard to bring oppressed groups

together and enact social and legal change. Without them, women wouldn’t have the

vote, they’d have no control over their reproductive health, while all kinds of minorities

would still be legally able to be discriminated against in the workplace, at school, and in

other public institutions.

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IK: So, Kristin, you’re saying that you believe that everyday or working-class citizens

could use the political schema – uniting to organize and build grassroots power – to work

in South Dakota? But the bill has already been signed by the governor. It wasn’t enacted

on July 1st, as it was supposed to be because a group of activists collected over double the

amount of signatures required to postpone the bill coming into law. So the citizens of

South Dakota will find the issue on the ballot in November.

KB: Great! But of course everyday citizens need to unite, rally, hold meetings and

conferences, attract the press, and get the word out however they can! If people strongly

feel that abortion being illegal will affect them, their community, and their future

generations, they must speak up. They may have no money, they may have no friends

who feel the same way, but they need to start small. Start with a handwritten flyer and

post it somewhere. No doubt there are others who will agree with you and will help you

organize.

PESS: I don’t know. I don’t understand how a group of everyday people can work to

make sure this law doesn’t go into effect. I mean, it’s already been signed by the

governor. I bet a lot of people just feel helpless right now. They probably don’t know

the schemas of the legal system or even how to stage a protest. Some may wish they

knew someone in power – some politician or something – but I bet a lot of people in

South Dakota have just resigned themselves to this law taking effect.

SEM: But if people feel the issue is personal enough, they’ll do something about it. If

they feel strongly about it, they’ll say something to someone and the word will spread.

Sure, gathering a large group of people who will march up to the governor’s office may

not be in the minds of some working-class citizens, but they may find other ways to get

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their voice heard. These people will take the courts. Actually, I really believe that

women will take to the courts if this law is passed. If they don’t want a child, and want to

have an abortion, I’m sure women will file suit left and right. They’ll feel so helpless

that they’ll see no other way.

MMTM: Yeah, but you’re just talking about tactical resistance here. If these women

take to the court after this is enacted, they most likely will not win. They will have no

choice but to have their child. Don’t you think that they should be provided with more

resources in order to speak out against what they see as an unjust law, if they feel that

way?

LBN: I really think that if people are serious about overturning a law, or not letting a

certain law be passed, they need to know their legal rights. They need to see how it is

nationwide, or in other states. If they’re empowered with this knowledge, they’ll feel

more able to take risks in challenging the legal system.

IK: You’re touching on the political schema again, Laura! What about the role of the

cultural schema – working to change deeply held cultural and social beliefs – here? Can

the people of South Dakota use this if they would like to make sure this law is not

enacted?

KB: I’m not sure how possible it is to change people’s beliefs. If they think abortion is

wrong, in any circumstance, how do you change that? I mean, people still hold racist

beliefs against African-Americans, no matter how PC they appear to be on the surface.

And this is some 40+ years after the second Civil Rights Act was passed. Did the law

really get rid of racism?

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PESS: Well, it didn’t completely get rid of it, but it certainly made every citizen aware of

what racism is and what harm it can do. Being made aware of injustice is a really good

start, and with all major injustices, you need to start somewhere.

IK: Indeed. And on a more practical note, what about utilizing the instrumental schema?

MMTM: Yeah, I really think true resistance happens when people invoke the

instrumental schema. This is where you see the results of successful resistance. Even if

you just feed a homeless person today, you are seeing the results of acting against the

cultural hegemony, one that doesn’t provide social help to each and every citizen. I think

that if the people of South Dakota don’t want this law to be voted for by their fellow

South Dakotans, they better volunteer at clinics that provide abortions. They need to

reach out to underserved communities, to their women and show them that having a

choice when it comes to when, if, and how many children to have is up to her and her

only. They need to work on educating women and girls about their reproductive health.

They need to speak out continuously against the ruling ideology that sex is a dirty thing,

and is something only to be done between a heterosexual married couple.

IK: So you think that different groups of people could work together to make sure this

law is not enacted? People invoking different activist schemas could come together on

this?

PESS: Yes! Different classes of society working together using different activist

schemas to change or overturn laws. Sounds crazy, doesn’t it? But it can happen.

Indeed, these people can work “with the law!”

The End

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