David M. Engel
Prologue: origin myths
Hopewell is perhaps not a typical community, but it is not unique either.
The formation of the county and its development to the present day are a continuous demonstration of the ways in which a small community can be molded by and participate in regional and national issues. Although the focus of the study is local, I found that my research was continually drawn outward to the state, region, and nation.
— Carol Greenhouse, Praying for Justice (1986, 27)
In the game of Telephone, a word or phrase is whispered down a line of people. By the time the last person in line repeats it, the expression usually bears little resemblance to the initial utterance. Sometimes people play the game in their own minds. They recount an incident to themselves so often that it is subtly changed with each repetition and, in the end, is fundamentally transformed.
I have often recalled the first time I met Carol Greenhouse. In my recollection, we served on a panel together at the first annual meeting of the Law & Society Association in Minneapolis in 1978. Carol, Barbara Yngvesson, and I each presented papers on our studies of courts and communities in three different American settings—Carol in suburban Georgia, Barbara in rural Massachusetts, and I in rural Illinois. Since we had not known one another previously, nor were we aware of one another’s research, we experienced a shock of recognition followed by a feeling of genuine excitement. Intense conversations followed and led eventually to a tri-authored monograph—Law and Community in Three American Towns (1994)—and a lifelong friendship.
It’s a great story and has felt somehow foundational to my relationship with Carol and, indeed, to my sense of myself as a scholar. But it turns out that the story is not exactly true. I recently discovered that, over the years, I have engaged in my own game of mental telephone. Studying old programs from the LSA annual meetings, I can find no evidence that Carol attended the 1978 meeting in Minneapolis. According to these records, it was not until the 1981 meeting in Amherst that Carol and I served on the same panel (“Legal Pluralism and Indigenous Law”), but then I was a discussant and did not present my Sander County study. And Barbara was not on the panel at all.
Facts can be bothersome. They can undermine efforts to construct the myths that are so important in people’s lives. The panel that I recall clearly as an intellectual and personal turning point did not, it appears, take place after all. I never sat there in wonderment as these two young anthropologists, Carol and Barbara, recounted ethnographic findings that resonated so perfectly with my own—all portraits of American towns in which conflict was shunned by those deemed “insiders.” Indeed, entire categories of litigation, such as personal injury lawsuits, were embraced only by so-called outsiders who failed to understand or accept historically rooted community norms and practices. All three of us had found that law, in the wrong hands, could become a sign of difference and even iniquity rather than civic virtue.
That mythic moment never took place as I have long pictured it in my mind, but I still embrace it. The myth has become truer than truth. Certainly, at some point the three of us did meet, talk, and join our ideas and our fortunes for a period of years. We did shape one another’s understanding of our three ethnographies. We did agree to continue our conversations, to convene in Ithaca, where Carol then lived, in my home of Buffalo, and even in the picturesque Finger Lake village of Cazenovia. We continued to write our individual publications, but we also wrote together, and eventually we published a rather unusual jointly authored monograph—not merely a collection of our separate studies, but an original meta-reflection on the three communities, which were different in many ways but surprisingly similar in their residents’ understanding of law’s place in American culture.
Our collaboration was partly the result of personal affection and intellectual affinity, but it was more than that. How did it happen that the three of us should have decided at roughly the same time to launch studies of law in small American communities? Although the idea of an American community ethnography was not new in itself, there was no tradition of researching law, litigation, or disputing in individual American towns. Since there were few precedents for such research, how did it happen that all three of us undertook similar projects at that particular historical moment? The answer lies partly in the state of the law and society field in the 1980s and partly in the state of the American state itself as it emerged battered and bruised from the travails of the 1960s and 1970s.
Launching a community-based legal ethnography in the US
In terms of the state of the field at the time, there was a strong sense of new questions taking shape from the cumulative work of field ethnographers all over the world, from regions at the cusp of independence where the status of “custom” was prominent as a high-stakes issue … We thought of U.S. research as inherently “relevant” but the content of that notion went unstated. Perhaps it is a sign of how very localized ethnographic practice was, how distant the state was from our ethnographic concerns, how ahistorical our questions were—or how naïve we (or I?)—might have been about the pervasive relevance of federal power, and local resistance to its expansion in the civil rights era.
— Simon Halliday & Patrick Schmidt, “Carol Greenhouse and Praying for Justice” (2009, 106–107)
In 1977, I began my research in a small Illinois community, which I named Sander County after a favorite and recently deceased uncle. Since I had spent most of the preceding decade either living in Thailand or studying Thailand’s law, culture, and society, the decision to conduct an ethnography of a small midwestern American community might seem surprising. As a college student I had majored in American studies, a field Harvard College called American History and Literature, but nothing in my undergraduate research on William James, Gertrude Stein, and Ernest Hemingway had prepared me to drive through the farmlands and small towns of northern Illinois to interview beauticians, tavern keepers, morticians, school administrators, ministers, farmers, and factory workers. Nor had three years of law school following my Peace Corps service encouraged me to supplement the study of black letter law with research into the everyday experiences of nonlegal actors who conducted their affairs far from the courthouse or the lawyer’s office. Some of my law school professors had warned me that inquiries into law’s broader social and political context were inappropriate for a legal scholar and looked suspiciously like political science or sociology.
Before I entered law school, however, my three years as a Peace Corps Volunteer in rural Thailand had taught me that it was always worth asking whether edicts from the center of political power had any effect at all on the lives of men and women who lived in the provinces, and, if they did, whether the impact was consistent with the purposes of state actors. I had acquired a strong skepticism about the reach of law into “upcountry” communities and a respect for the integrity and durability of nonstate systems of social ordering. Thus, as a law student reading opinions written by elite judges, I was perplexed by jurists’ reliance on what seemed to me to be untested assumptions about the behaviors and motives of ordinary Americans as well as a deep unfamiliarity with their lives. Returning to Thailand on an SSRC fellowship after law school, I was able for the first time to probe these two worlds—the world of the provincial court, where elite judges applied black letter law, and the “real” world of custom, culture, community, and religion, in which villagers and townspeople almost always preferred to conduct their affairs and resolve their conflicts at a safe distance from state law (Engel 1978).
It is not too surprising, then, that I should become intrigued by the idea of conducting an analogous study of court and community in an American provincial setting. I suspected that Americans, too, handled many kinds of social interactions without regard to legal principals and procedures. I was aware of Stewart Macaulay’s (1963) study of Wisconsin business people, whose contractual dealings resembled the reciprocities of Malinowski’s Trobriand Islanders more than the rational exchanges of law-minded citizens that were assumed by most contract law professors. But there is more to the story than that. My own intellectual trajectory from Thailand to the US does not explain why Carol and Barbara should have arrived at the same decision to study law in American communities at roughly the same time. To understand that apparent coincidence, it is necessary to recall the political turmoil and conflicts of the era.
State of the field and field of the State
For these citizens, the court is a crucial but ambiguous symbol of community. On the positive side, it is the very emblem of local autonomy and classical republicanism. On the negative side, the court symbolizes the reach of the state into the fabric of local society. Accordingly, in this book, we address the irony that, although courts and law are central to the ways some residents construct their sense of community, these same individuals disparage the courts as having been captured by the “wrong” people for the “wrong” kinds of cases.
— Greenhouse, Yngvesson, & Engel, Law and Community in Three American Towns (1994, 1–2)
Carol’s research in Hopewell began in 1973; I initiated my study of Sander County in 1977; Barbara began her fieldwork a few years later (see Yngvesson 1993). The years preceding our three studies had been tumultuous. The war in Vietnam had rapidly expanded, with a disastrous impact on Asian villagers and city dwellers and on military combatants on both sides. In America, opposition to US war policies grew in size and intensity, and American society became deeply polarized. Nixon’s 1968 presidential campaign claimed to speak for the “silent majority,” a politically expedient term which nonetheless professed to have legitimate sociological underpinnings. The “quiet voice” of America, according to Nixon’s 1968 acceptance speech at the Republican National Convention, “is the voice of the great majority of Americans, the forgotten Americans—the non-shouters; the non-demonstrators … They work in America’s factories. They run America’s business. They serve in government. They provide most of the soldiers who died to keep us free … They are good people, they are decent people; they work, and they save, and they pay their taxes, and they care” (Nixon 1968).
Like so many who opposed American policy at the time, I detested Nixon and his calculated exploitation of grievances in a sharply divided country. Nevertheless, some aspects of his twisted and self-interested sociology did ring true. In the early 1970s, as the war began to wind down, there was a growing interest in those whom Robert Coles (1971) called “The Middle Americans,” and some liberals thought it important not to concede this large and important segment of our country to the ambitions of Nixon and his team. Returning from my years in upcountry Thailand, I shared this fascination with peoples and cultures whose voices had been silenced by the noise and conflict of the past decade. It seemed entirely appropriate to listen respectfully to what they had to say after too many politicians and intellectuals had presumed to speak for them or about them.
Thus, the conflicted and uncertain state of the American state fed directly into my wish to obtain a view of my own society that might resemble in some ways the view I had been granted of life and culture in provincial Thailand. But there was another crucially important development that contributed to my decision to launch the Sander County study. In 1964, a small group of social scientists and law professors had founded the Law & Society Association, and in 1966 they began to publish a journal, The Law & Society Review, that became an outlet for some of the most important interdisciplinary scholarship on law in the years that followed. After an inaugural gathering in Buffalo in 1975, the LSA began to hold annual meetings in 1978—this was the Minneapolis meeting at which I had imagined encountering Carol and Barbara for the first time.
The influence of the LSA meetings and publications on my own intellectual development cannot be overstated. I would never have undertaken—or even conceived of—the Sander County study without the ideas, examples, theories, and encouragement of LSA colleagues and mentors. I suspect that Carol and Barbara may concur in this. Many of the LSA scholars whom I admired the most—Marc Galanter, Sally Falk Moore, Rick Abel, Stewart Macauley, Laura Nader, and others—had begun their careers working in other countries and cultures before returning home to write about American topics. They provided examples for me to emulate, and they legitimated the idea that findings concerning law, culture, conflict, and dispute resolution abroad could be reflected back onto American society. As American researchers generally began to come home and to look inward at their own mores and social practices, the emergence of the law and society field in the US encouraged many scholars to ask law-related questions about American communities and about the values and behavior of “ordinary people”—by which they meant those who were not necessarily official legal actors, litigants, or even activists. How researchers might best gain access to their thoughts and experiences became a common topic of discussion at LSA meetings. Carol, Barbara, and I came up with similar answers as we launched our three studies. We were ignorant of one another’s efforts, but we were responding to many of the same social and intellectual forces, and the similarities in our findings were not coincidental.
Citizenship in the era of rights
[T]he person’s embrace of citizenship as his or her own involves an entirely different set of issues—potentially not referring to administration and by no means necessarily limited to or contained by the nation-state. The citizen looks not so much up to the state, as inward, and outward, to other people. The image of the self as citizen makes the state integral to the constitution of the person and draws the idea of legality directly into the personal subjective realm—as desire, pleasure, pride, pragmatism, fear, shame, and terror (among other possibilities) in a host of public and private settings.
—Carol Greenhouse, The Paradox of Relevance (2011, 265)
Although our three studies may have resembled the anthropologist’s classic village study in their localized emphasis, one of the most important of our common findings was that local cultures were powerfully shaped both by a sense of history and by an ambivalent relationship with the state. The three histories were very different, but the importance of history was much the same in all three locales. The idea of a community that we encountered in our research, particularly when described by those considered “insiders,” was rooted in shared memories of conflict, triumph, and endurance in the face of adversity that shaped local understandings of citizenship, proper conduct, and belief.
But local perceptions of the upright citizen were also the product of a longstanding dialogue—real or imagined—between the community and the state. In this dialogue, law played a critically important role. As we concluded in our jointly authored monograph:
Unlike “community,” which is invoked exclusively as a positive force in the rhetoric of everyday people in our three locales and elsewhere, the invocation of law has more bivalent connotations. Law is both a force for order and a conduit for disorder; it is a symbol of local morality and the penetration of the local by the state, by the “outside,” and all that is locally interpreted as undermining “community.” By using law, “insiders” may succeed in enforcing norms central to their way of life; by talking disparagingly about law and about “all these people walking around with all these rights,” the same insiders define their community as a domain of mutual engagement in which the concept of “rights” (and, in some sense, of law itself) is out of place. (Greenhouse, Yngvesson, and Engel 1994, 186)
Carol, Barbara, and I may have initiated our studies with a highly localized focus on community, but we soon realized that the very concept of community could be understood only with reference to the state, and the ambivalent perception of law reflected a highly unsettled congeries of beliefs about the situations in which the state should be brought into the community and the situations in which it should be kept out. Much depended, of course, on who it was that issued the invitation.
All of us knew very well that we were the ideological children of the civil rights era. In fact, Carol later wrote a book (2011) on the often hidden connections between “the politics of rights,” to borrow the title of Scheingold’s (1974) classic study, and the ethnographies of American society conducted in the 1990s. The three of us did not necessarily set out to study rights in our three communities, but the suspicion of law that we encountered there, and the passionate defense of local institutions, norms, and practices, now strike me as very much a response to American civil rights activism in the 1960s and 1970s. Our “insider” spokespersons felt threatened by the potential loss of control that could result from “outsiders” asserting rights that were backed by the enforcement power of the state. The tension between the state and the locality found its most complete expression in talk about law—when it should be invoked and when it should be avoided. This seemingly inconsistent form of discourse about law and community in America was not new, nor was it confined to the three towns we chose to study. It can be found in the descriptions of American society by Crèvecoeur (2013 ) and Tocqueville (2000 )—and it has flourished in the era of Trump.
My own research after the Sander County study involved a more explicit engagement with the complex role that rights guaranteed by the state play in people’s lives and beliefs. For persons with disabilities, for example, rights represented the possibility of both inclusion and exclusion, both individual autonomy and dependence on state laws and institutions (Engel & Munger 2003). For villagers in northern Thailand, rights represented both a claim to social equality and citizenship and a risk of furthering the hegemony of the central Thai state over the outlying regions of the country (Engel 2015, 2016). My interest in the complexities of rights originated in my research in a rural Illinois community and, more importantly, in the extended discussion with Carol and Barbara that began—or not—with the panel on which the three of us may or may not have first met and shared our findings. For me, that was surely a lucky day, even if it never occurred at all.
David M. Engel’s research deals with law, culture, and society in American communities and in Thailand, where he has lived, worked, and taught for many years. He is SUNY Distinguished Service Professor of Law Emeritus at the State University of New York, Buffalo, and a visiting professor at the Chiang Mai University Law School. His monograph, Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand, coauthored with Jaruwan S. Engel, examines the effects of global transformations on Thailand’s legal culture. His most recent book, The Myth of the Litigious Society: Why We Don’t Sue, offers an empirically grounded explanation for the predominance of lumping among injury victims. A former President of the Law & Society Association, Engel has received the LSA’s Kalven Prize, the Legacy Award, the Article Prize, and – with Carol J. Greenhouse and Barbara Yngvesson – the Jacob Book Award.
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Crèvecoeur, J. Hector St. John de. 2013 . Letters from an American Farmer and Other Essays. Cambridge: Belknap Press.
Engel, David M. 1978. Code and Custom in a Thai Provincial Court: The Interaction of Formal and Informal Systems of Justice. Tucson: University of Arizona Press.
Engel, David M. 2015. “Rights as Wrongs: Legality and Sacrality in Thailand,” Asian Studies Review 39, no. 1 (December): 38–52.
Engel, David M. 2016. “Blood Curse and Belonging in Thailand: Law, Buddhism, and Legal Consciousness,” Asian Journal of Law and Society 3, no. 1 (February): 71–83.
Engel, David M. and Frank W. Munger. 2003. Rights of Inclusion: Life Stories of Identity, Disability, and Law. Chicago: University of Chicago Press.
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Greenhouse, Carol J. 2011. The Paradox of Relevance: Ethnography and Citizenship in the United States. Philadelphia: University of Pennsylvania Press.
Greenhouse, Carol J., Barbara Yngvesson, and David M. Engel. 1994. Law and Community in Three American Towns. Ithaca: Cornell University Press.
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