As the readings in Chapters 1 through 3 have made clear, states never succeed in establishing a legal monopoly despite their best efforts - not in Asia or in any country of the world.
When it comes to matters where the law might play a role, people always have their options. But how do they choose among them? What is it that leads people to use state law in some instances and reject it in others - or seek recourse in non-state legal alternatives? And in what situations do people “bargain in the shadow of the law” or simply “lump” their losses?
To explain how people selectively invoke the law, law and society scholars have increasingly turned to the concept of “legal consciousness.” Consciousness in this context refers not only to cognition but also to behavior - the practices of people who are involved with situations in which law could play a role.
Although legal consciousness research focuses on the subjective aspects of people's behavior in relation to the law, it is not just a study of attitudes or opinions; it is also a study of decision-making and behavior.Legal consciousness scholars explore the absence as much as the presence of law. They try to explain not only why people turn to the law but also why they reject it, misunderstand it, or have no knowledge of it at all. Law and society researchers have demonstrated that law holds different meanings for people in different situations. At times, the law may appear promising and even alluring, but at other times it may seem remote from everyday life, intrusive, or threatening. For most legal consciousness researchers, “law” or “legal” refers to the law of the state, and they have found that people tend to view state law as useful in facilitating certain kinds of transactions or claims but potentially destructive of relationships or of valued traditions in other circumstances, capable of turning cooperation into adversarialism and hostility.
For law and society scholars, legal consciousness research is not just the study of individuals; it entails the study of broader cultural phenomena and of the social and political currents that shape people's thoughts and actions.
Moreover, researchers have begun to extend their understanding of “consciousness” itself to include its relational aspects and not just its individual manifestations.Legal consciousness research in Asia has proliferated in recent years and has become one of the fastest growing areas of law and society research. Indeed, Asia-based studies of legal consciousness have led the way in raising new questions and proposing new frameworks for understanding the law-related thoughts and practices of individuals and groups. In this chapter, we trace the origins of legal consciousness research in Asia as well as the frontiers that are now being mapped by law and society researchers.
Legal consciousness research can be grouped into three schools: Identity, Hegemony, and Mobilization. They are described in Chua and Engel (2020:187-8):
The Identity school views legal consciousness as an ongoing process of constructing the self in relation to law and legal rights. Typically relying on biographical or autobiographical narratives, researchers examine how the relevance or irrelevance of law to a person's experience connects to the process by which that person's identity - or sense of self - takes shape, making legal norms and institutions appear naturally suited in some instances and inappropriate in others. Identities are fluid and people's relationship to law continually shifts and changes. [...]
The Hegemony school treats law as a pervasive and powerful tool of state control that can shape the categories, values, and assumptions of individuals even when it is not applied directly and instrumentally. Researchers using this framework aim to reveal the workings and the often invisible effects of law in the thoughts and actions of ordinary people. They trace the dominance of law and legal institutions in everyday life, and they also examine whether and how individuals resist law's power. According to the Hegemony school, however, even when individuals try to resist the law, they cannot overcome its inescapable
141 reach.
Their acts of resistance inevitably operate within law's logic and understandings, rather than outside its framework, and reinforce or leave intact law's superordinate power.The Mobilization school investigates how legal consciousness promotes - or fails to promote - the role of law and the efficacy of rights in transforming social conditions, particularly to achieve justice or protect disadvantaged populations. Mobilization researchers focus on the relationship between processes of social change and the experiences, perceptions, and actions of individuals who choose to use or avoid the law. Some Mobilization scholars study people's legal consciousness to gauge the extent of social change that has occurred, whereas others study it to explain how and why those people have turned to the law to transform their circumstances. In either case, studying legal consciousness helps Mobilization scholars to view social change through the lens of human agency, thereby augmenting the more typical research on social change that tends to adopt an aggregate and distanced perspective.
Law and society scholars of Asia have generally adopted either the Identity or the Mobilization approaches to legal consciousness research, giving relatively less attention to the Hegemony approach. This preference will be reflected in the readings presented in the remainder of this chapter.