Law, Community, and Everyday Life: Yngvesson's Virtuous Citizens and Disruptive Subjects

Law, Community, and Everyday Life: Yngvesson’s Virtuous Citizens and Disruptive Subjects

Alan Hunt

BARBARA YNGVESSON. Virtuous Citizens, Disruptive Subjects: Order and Complaint in u New England Court. New York: Routledge, Chapman 6r Hall, 1993. Pp. xii+168. $49.95 cloth; $16.95 paper.

I. THE SHIFT TO COMMUNITY

One of the most distinctive recent shifts in sociologically informed studies of law has been toward a focus on “law and community.”’ Barbara Yngvesson’s Virtuous Citizens, Disruptive Subjects is a significant landmark in bringing this project to maturity. Insofar as it exhibits most, if not all, of the characteristics of the trend, this essay will treat Yngvesson’s book as the representative text of this shift of focus.

Alan Hunt is a professor in the Departments of Law and Sociology at Carleton University, Ottawa, Canada. He thanks Valerie Howe for discussions on law and community and for comments on an earlier draft.

1. For this recent revival of anthropological and sociological studies of legal culture and legal consciousness, in addition to the works discussed below, see Anthony Chase, “Toward a Legal Theory of Popular CuIture,” 1986 Wis. L. Rev. 527-69 (1986); John M. Conley & William O’Barr, Rules versus Relationships: The Ethnograpghy of Legal Discourse (Chicago: Uni- versity of Chicago Press, 1990); David M. Engel, “Law in the Domain of Everyday Life: The Construction of Community and Difference,” in Austin Sarat & Thomas Keams, eds., Law in Everyday Life 123-70 (Ann Arbor: University of Michigan Press, 1993); Patricia Ewick & Susan S. Silbey, “Conformity, Contestation, and Resistance: An Account of Legal Conscious- ness,” 26 New Eng. L. Rev. 73 1 (1992); Stewart Macaulay, “Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sport,” 21 Law Ej, Soc’y Rev. 185 (1987); Robert Post, ed., Law and the Order of Culture (Berkeley: University of California Press, 1991); Steve Redhead, Unpopular Cuhres: The Btth of Law and Popular Cuhre (Manchester: Manchester University Press, 1995); Margaret R. Somers, “Citizensip and the Place of the Public Sphere: Law, Community, and Political Culture in the Transition to De- mocracy,” 58 Am. SOC. Rev. 587 (1993); Barbara Yngvesson, “Inventing Law in Local Set- tings: Rethinking Popular Legal Culture,” 98 Yale L.]. 1689 (1989).

0 1996 American Bar Foundation. 0897-654619612 101-01 73$01 .CQ 173

174 LAW AND SOCIAL INQUIRY

The revival of anthropologically rooted studies of law is itself significant in a period in which the disciplinary boundaries within the social sci- ences are in considerable flux, if not dissolution. What marks them as “anthropological” is both methodological and substantive. They commonly deploy versions of extended ethnographic observation of interactions within selected social and legal locations, often stemming from graduate fieldwork undertaken while the researcher is residing in the selected towns or neigh- borhoods that are provisionally designated as “communities.”2

More significant is the substantive concern of contemporary law and community work with the part played by law in everyday life-with the way in which legal elements are imbricated in the practices and discourses of social life. However, this does not necessarily mark a separation between institutional and noninstitutional settings. Thus Yngvesson’s work, for example, is very much concerned with what goes on inside local courts and with the interaction between formal and informal practices and discourses within such institutional settings. One way of capturing the location of law and community work is to suggest that it is concerned with what takes place on the steps of the courthouse and in its corridors and waitingrooms as much as, if not more than, what takes place in the courtroom itself.

Law and community studies involve a significant, if albeit, implied critique of the tendency for the sociology of law to concern itself with institutional practices or, rather, to be concerned with the visible face of law, as institutional practices located at (or near) the level of the state which act on citizens. In many, but again not all, of its manifestations, law is a set of processes that acts from above, impacting downward on legal subjects. I t is important to stress the absence of any neat or tidy line between the sociology of law and the anthropology of law. Indeed, an important strand in the motivation of sociological work on law has long been the attempt to break with the top-down formalism of orthodox legal scholarship. In the current period it has been the anthropologists who have been most active in pro- moting the view from below and eschewing any hint of legal positivism. Perhaps the most distinctive motif of contemporary legal anthropology is the concern with legal consciousness, with the attitudes and perceptions of lay actors distant from the formal arenas of law but for whom, as Sarat and Kearns put it, “law helps shape experiences, interpretations, and under- standings of social life, and how legal rules are used in daily life.”3 The

2. It may not be entirely cynical to say that determining whether research involves the ethonographic presence of the observer may be the only thing left that distinguishes “anthropological” from “sociological” research.

3. Austin Sarat & Thomas Keams, eds., Law in Everyday Life 2 (Ann Arbor: University of Michigan Press, 1993) (“Sarat & Keams, “Everyday Life”). I would take issue with this formulation that “legal rules are used in daily life” since it treats rules as already existing entities that are used or, for that matter, not used in daily life. We might more fruitfully employ the idea of legal elements that do not have their source in the productivity of legisla- tures or the pronouncements of judges: elements that are combined in ways that breach the

Law, Community, and Everyday Life

strong implication is that legal consciousness has an existence outside of courts and enters into the way people lead their lives. Thus, as Ellickson shows when farmers and ranchers dispute over the damage done by cattle, the outcome of their bargaining cannot be explained as being determined by formal legal rules, although contested forms of legal consciousness enter into their dealings.4 Or, as Carol Greenhouse demonstrates, when the residents of “Hopewell” (a strongly Baptist community in Georgia) dispute, even though there is a strong commitment to “avoidance” of resort to law, they deploy conceptions of rights in dispute resoluti~n.~

One of the reasons for the inherent attractiveness of the shift to community is that it carries forward the best of the Legal Realist tradition. It promises to tell us about “law in action,” what really happens rather than what is supposed to happen. Yngvesson captures the way in which lower court functionaries, unconstrained by much concern with the technicalities as to whether a criminal offense has been committed, deliver moral homilies to feuding families about the need to keep children under control and the virtues of neighborliness. Without ever having set foot in the Massachu- setts towns she studied, I read her account and it rings true because it captures a familiar sense in which people, without lapsing into contradiction, experience law as both imposition and as a resource to be made use of under appropriate circumstances. I can follow her plot line and get an emphatic sense of the differential dynamics of the way in which law gets invoked in the three communities she worked in. This link with the Realist tradition remains vibrant; it provides an intuitively attractive critique of the formalism of orthodox legal studies with their narrow focus on rules, procedures, appellate courts, and with the “law in books.”

Yngvesson is not, however, influenced by the orthodox Realist concern to contrast the “law in books” with “law in action.” Yet she does draw on the Legal Realists’ happy collaboration with anthropology that gave birth to the “trouble case” method employed by Llewellyn and HoebeL6 Delightfully simple in conception (if not always in execution), the method urges US to

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idea of law as a closed discursive formation, mixed with elements gleaned from popular justice, religious precepts and ethical sentiments.

4. Robert C. Ellickson, Order without Law: How Neighbors Settle Dzswtes (Cambridge: Harvard University Press, 1991).

5. Carol J. Greenhouse, Praying for Justice: Faith Order and Community in an American Town (Ithaca, N.Y.: Cornell University Press, 1986) (‘‘Greenhouse, Praying for Justice”). Simi- lar themes about the role of legal consciousness not reducible to formal legal rules are found in Carol J. Greenhouse, Barbara Yngvesson, & David M. Engel, Law and Community in Three American Towns (Ithaca, N.Y.: Cornell University Press, 1994) (“Greenhouse et al., Law and Community”); Mindie Lazarus-Black & Susan F. Hirsch, eds., Contested States: Law, Hegemony and Resistance (New York: Routledge, 1994); Sally E. Merry, Getting Justice and Getting Ewen: Legal Consciousness among Working-Class Americans (Chicago: University of Chicago Press, 1990).

6. Karl N. Llewellyn & Adamson E. Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941 ).


start with everyday problems and conflicts and to track how they are handled, how institutions, rules, processes, and the like become imbricated with forms of consciousness, ideology, and practices. To this attractive starting point Yngvesson adds new layers of sophisticated analysis that I will explore after sketching her account of troubles reaching local courthouses in three Massachusetts communities.

11. EVERYDAY TROUBLES IN THREE COMMUNITIES

Yngvesson explores neighbor conflicts that take the form of legal complaints in three contrasting communities. It should be noted that her ver- sion of the “trouble case” method only involves those troubles that generate distinctively “legal” complaints. I t largely falls outside her terms of reference to consider the differential tendencies involved in the transformation of “neighbor conflicts” into “legal complaints.” The bulk of her attention is focused on two communities separated by only three miles but with contrasting social characteristics. Greenfield, once a prosperous industrial center, now struggling with the impact of industrial decline, remains a community with a large middle class and significant numbers of skilled factory workers. Its economic vulnerability makes Greenfield residents divide over the desire to attract new business and the fear that newcomers may trans- form the town in ways uncongenial to a well-settled population.

Three miles up the road is Turners Falls, a now depressed mill town populated by large numbers of unemployed and welfare recipients living in tenements once occupied by factory workers. From the vantage point of nearby Greenfield, the “undesirables” of Turners Falls are a metaphor for social chaos and the disintegration of community. Interestingly, we don’t learn very much about how the residents of Turners Falls view the more affluent community of Greenfield.

To these proximate communities Yngvesson adds a third, rather different and contrasting study, drawn from her own home town of Leverett. Here she traces a dispute in which local residents engage in a protracted legalistic dispute that reaches the appellate level. The conflict pitted property-owning residents with professional and academic jobs against wealthy incomers over the preservation of an abutting hill that is a significant scenic and recreational amenity. It is an interesting episode and the story is well told, but the dissimilarities between this case and the problems brought to the court by the residents of Greenfield and Turners Falls makes its inclu- sion somewhat problematic. Yngvesson does address this issue and makes a virtue of these differences as a means of providing a contrasting context. This is a reasonable point, although in practice I found that it rather dis- rupted my concentration on the main body of her research findings.


There is another structural feature that somewhat disrupts the central focus of the study. A central focus of the handling of complaints is on the role of the court clerks in the Massachusetts criminal justice system. These officials occupy an interstitial position between complaints and the court system. They weed out and handle “trivial” complaints from those that become designated as “criminal” matters and move onward and upward within the system. The analysis of the role of these clerks lies at the very heart of the study. It is thus somewhat disturbing to find that Yngvesson’s analysis deals in any substantive detail not only with the relationship between the clerks and the residents of Greenfield and Turners Falls but also draws heav- ily on material gathered at the District Court of Essex located at Salem in the east of the state. This is somewhat odd because, while we are introduced to the residents of Greenfield and Turners Falls, both within the Franklin County jurisdiction, we learn nothing of the people living in Salem. While the material drawn from Salem is interesting, it draws attention away from the more significant comparison between the distinct but proximate communities of Greenfield and Turners Falls. The shift of attention from the contrast between the court clerks in the Essex and Franklin courthouses almost entirely squeezes out any consideration of the potentially significant contrasts in the way in which the Franklin County court processes complaints arising in “respectable” Greenfield and “uncivilized” Turners Falls.

This lack of symmetry in the presentation of the research may explain the tendency in the text to shift between explanatory levels. In the comparison between Greenfield and Essex County we are given interesting ac- counts of differences in the “styles” employed by individual court officials; one is self-consciously informal, invoking moral homilies rather than legal rules, and making use of his local knowledge of the community, while another sustains his separation from the complaints with a more formal and legalistic style. However, this textural richness tends to fit uncomfortably with the general theoretical project which can be described as the concern to explore the relationship between community and the deployment of rights within the “field of law,” in that only occasionally do we get a glimpse of the tactics and styles by means of which complaints deploy their situa- tional sense of law. There is a disarming account of one court regular who successfully mobilizes his acquired ability to play the game by the legal rules to extract himself from an unpromising situation. A more focused attention to contrasting the strategies of court officials with those employed by complainants could have been rewarding.

These structural and organizational problems with the presentation of the research findings detract from their impact but do not undermine the overall significance of the book. The book’s strength derives from the finely tuned integration of perceptive ethnographic reporting that is located within a sophisticated theoretical framework, to which I now turn.

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111. CONSTITUTIVE THEORY IN ACTION

Yngvesson mobilizes a range of theoretical resources to grapple with the way in which everyday troubles are handled at the margins of the legal system. The focus on the work of the lowly court clerks enshrines another positive feature of the Realist tradition. The early Realists secured a major polemical strike with their attack on the “upper court myth,” even though they were persistently drawn back into the traditional legal scholar’s fasci- nation with the appellate courts and particularly with the Supreme Court.7 Yngvesson in contrast remains entirely faithful to the Realist dictum that the real world of law is located in the everyday interactions between citizens and their dealings with the lower-level courts.

However, Yngvesson takes an important step beyond the Realist tradition, which had focused on the unidirectional impact of legal practices. The Realists had typically examined the impact of legal officials on those who, usually unwillingly, had become involved in legal processes; the everyday outsiders have continued to be treated as the barely present Other, whether as client, defendant, or witness. Thus, for example, in Abraham Blumberg’s classic study of lawyers, representing the marriage of Realism and sociolegal studies, lawyers are revealed as serving the interests of the court system to the disadvantage of the clients whom they are supposed to represent.* Although not generally thought of as a “Realist,” Talcott Parsons provided a major Realist thesis with his functional analysis of the role of lawyers as “cooling out” their client^.^ In these and numerous other studies, citizens, complainants, defendants, and others caught up in legal process have no active role; they are merely the unpaid extras in law’s multiple dramas.

Yngvesson exemplifies a common theme of contemporary anthropology/sociology of law which seeks to make explicit a more dynamic or interactive relationship between bureaucratic court systems and the citizens who become involved with them. This dynamic relation is the hallmark of “constitutive theory,” which finds its most concentrated expression in work ema- nating from the Amherst Seminar.10 Its hallmark is the contention that

7. Karl N. Llewellyn, The Brambk Bush: O n OUT Law and Its Study (New York: Oceana Publications, 1930).

8. Abraham Blumberg, “The Practice of Law as a Confidence Game,” 1 Law d Soc’y Rev. 15 (1967).

9. Talcott Parsons, “A Sociologist Looks at the Legal Profession,” in T. Parsons, Essays in Sociolog~cal Theory (Glencoe, Ill.: Free Press, 1954).

10. The Amherst Seminar has been a far from cohesive trend. Starting from a concern with law as ideology, this body of work has increasingly redefined its focus toward popular legal consciousness (Christine Harrington, Shadow Justice: The Ideology and Institutionalization of Alternatives to COUT~S (Westport, Conn.: Greenwood Press, 1985); Alan Hunt, “The Ideol- ogy of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law,” 19 Law d Soc’y Rev. 101 (1985); Sally E. Merry, “Culture, Power, and the Discourse of Law,” 37 N.Y.L. School L. Rev. 209 (1992); Boaventura de Sousa Santos, “On Modes of Production of Law and Social Power,” 13 Int’l J. SOC. L. 299 (1985); Sarat &a Keams,


legal life and everyday social life are mutually conditioning and constraining and that elements of legal consciousness play an active part in popular consciousness and practices. Law enters into the way that life is imagined, discussed, argued about, and fought over; this imagining, talking, arguing, and fighting shapes the law. For example, legal conceptions are constitutive of widely dispersed views about property and trespass, about debts and con- tracts. These conceptions are not simply the incorporation of dominant ideologies within popular consciousness but also play a key role in the articulation and application of the specifically legal conceptions of property, debt, and contract.”

Constitutive theory is given strongly grounded expression in Yngves- son’s work through a focus on the way in which complainants coming before local courts are in an important sense “using” the legal environment to articulate their problems by deploying conceptions of rights, duties, and justice. These in turn impact on the court officials in that they constrain the discourses they employ and influence outcomes. Yngvesson does not perhaps make as much as she could of something which stood out for me from the interactions she recounted, namely, that the degree of legalism in the informal hearings was significantly determined by the approach taken by the complainants. When a complainant presented the issue in terms of everyday troubles about “keeping the kids in line,” then the court clerks often responded in kind, delivering moral lectures about the responsibilities of parenting. When, on the other hand, the complainant started in with talk of crime, offense, and injury, this, as much as if not more than the personal “style” of the clerk, resulted in a more legalistic stamp being placed on the whole proceedings. This reading of the cases provides exemplifica- tion of Yngvesson’s important contention that complainants are not passive participants but rather are able to make “use” (but not, of course, always successfully) of the clerks and the institutional setting.

The exploration of the interactive relationship between officials and complainants offers fertile possibilities for the analysis of those encounters in which rights are invoked. I was struck by a number of incidents described where there was an interesting interplay in which complainants and officials both invoked the discourses of rights. Complainants made use of a broad extralegal “rights talk” in the form of a normative justification of their conduct while officials spoke in the narrower language of legal rights.

Everyday Lfe; Susan Silbey & Austin Sarat, “Critical Traditions in Law and Society Re- search,” 21 Law 6’ Soc’y Rev. 165 (1987); Colin Sumner, Reading Ideologies: An Investigation into the Marxist Theory of Ideology and Law (London: Academic Press, 1979)). Trubek and Esser en in in posing a homogeneity on this body of work in advancing criticisms that are more pertinent to the wider law and society movement (David Trubek &John Esser, “ ‘Criti- cal Empiricism’ in American Legal Studies: Paradox, Program or Pandora’s Box,” 14 Law €4 SOC. Inquiry 3 (1989)).

11. Stewart Macaulay, “Images of Law in Everyday Life: The Lessons of School, En- tertainment, and Spectator Sport,” 21 Law 6’ Soc’y Rev. 185 (1987).

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Yngvesson’s analysis does not always provide sufficient detail to confirm a reading which suggests that the clerks sometimes did not succeed in stamp ing a narrower rights construction on the proceedings, but conceded a certain legitimacy to a broader and more popular rights talk.

I will now make explicit an issue about which Yngvesson has something to say but which she does not pose directly, namely, the conception of power she employs. Today we are all Foucauldians, at least insofar as we attempt to conceive of power as a relation rather than as something that is possessed and, further, accept that where there is power there is resistance. This is an enormous step forward over those conceptions of power as something controlled by one side and thereby denied to the other. The problem about power can be posed in the following terms: If power is relational, is there anything theoretically that can be said about the general dynamics of power within social relations? Or is power simply a matter for empirical investigation in each unique instance? In the case of Yngvesson’s inquiry into the interactive relations between clerks and complainants, it is clear that these interactions do not take place on a “level playing field.” She shows that complainants have an impact in determining aspects of the dynamics of complaint procedure; the courthouse cannot be understood simply as the social territory of officials. The question, in its simplest form is: How much impact do complainants have?’Z What can be said about the respective extent that law officers and citizens shape the law?

One now conventional response, which owes much to Foucault, is to speak of officials having power while those that come before them resist. Foucault’s thesis that where there is power there is resistance has serious limitations.13 This oft-repeated thesis provides us with a nudge to look for resistance.14 But resistance is always and forever merely reactive, it is the pain that follows the needle; “resistance” thus conceived can never be com- mensurate with “power.”15 In setting up the juxtaposition of power/resistance, Foucault succeeded in deluding himself that he had made a sharper

12. In order to present the problem of the distribution of power as sharply as possible I leave aside the important objection that to talk about “how much” power may already a retreat toward a zero sum conception of power. 1 have tried to address this difficulty else- where, avoiding any quantification of power, by focusing on the “condensation” or “concentration” of power. Alan Hunt, “Foucault’s Expulsion of Law: Toward a Retrieval,” 17 Luw B SOC. Inquiry 1 (1992).

13. Michel Foucault, The History ofSexuality: Vol.1, An Introduction 95 (New York: Pan- theon Books, 1978).

14. James Scott has gone a long way to flesh the abstract reactive concept of resistance in the discourses and practices of subordinate classes, but it remains trapped within the power/ resistance dichotomy. See James C. Scott, The Weapons ofthe Weak: Everyday Forms of Peasant Resistance (New Haven, Conn.: Yale University Press, 1985); id., Domination and the Arts of Resistance: Hidden Transcripts (New Haven, Conn.: Yale University Press, 1990).

15. Except in the limit condition of “revolution” where an existing power is overturned and the power is thereby transferred to the previuously subordinate category.


break with Marx than he in fact achieved; rather he bequeathed to us the continuing problem of how to conduct the analysis of power.

Yngvesson’s way of handling this problem is a fruitful application of a strong dose of Bourdieu, in particular his idea of social relations, including law, as being located within “a field.” The significance of this conceptual- ization is that it gets us away from any necessarily hierarchic conception of power. *6 Thus in the case of Yngvesson’s focus on the relations between court clerks and complainants, she is able to demonstrate that within the “Iegal field” lower-class complainants are able to secure an opportunity within which they “challenged and reaffirmed the order of the court by creating a space for the enactment of community ideologies within its boundaries” (at 96). This approach makes use of Bourdieu’s idea of “sym. bolic power,” but I want to suggest that there is further scope offered by Bourdieu, in particular, his attempt to specify with greater conceptual differentiation the interaction of different forms of “capital.” Of special relevance is his attempt to bring into play the interaction of economic and cultural capital. I am attracted to the recent attempt by Mariana Valverde to make a further distinction by exploring “moral capital” as a distinctive form of cultural capital.17 What this suggests to me are the questions: What forms of “capital” are brought into play through law? Is there merit in thinking through the possibility of a distinguishable form of “legal capital”?

I shrink from pursuing this line of inquiry much further, not only because to do so would take me well beyond the boundaries of this essay and of Barbara Yngvesson’s text, but also because whilst I find this line of thought attractive, I have some reservations about the risks inherent in stretching too far the metaphorical use of “capital” by introducing ideas of “accumula- tion” and “profit,” which is where the metaphor leads, and may make the metaphor overdetermining. Yet I do want to hang onto the fundamental point that Bourdieu’s work needs to be pressed further into service because it holds out the prospect of providing a framework within which it makes sense to ask how much power particular actors are able to mobilize and to consider circumstances in which forms of cultural capital may secure pre- dominance over the more orthodox forms of power such as economic and political power.

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IV. THE PROBLEM OF COMMUNITY

The concept “community” plays a key role, not only in Yngvesson’s book, but in the wider concerns of contemporary legal anthropology. This

16. Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field,” 38

17. Mariana Valverde, “Moral Capital,” 9 Cadian 1.L. d Soc’y 213 (1994). Hastings L.J. 805 (1987).


concept is central in her work, but it remains unelaborated.18 “Community” provides a framework which offers an alternative to conventional legalist modes of thought in which the law is conceived as an external mechanism which imposes rules and procedures by reference to which social life is framed. In other words, contemporary use of “community” is struggling, not always consciously, to escape from one of the most persistent intellectual grids within which modem social theory has operated, captured in the cele- brated distinction between Gemeinschaft and Gessellschaft. For the sociology of law, this dichotomy confronts in the form of a binary divide between exterior “rules” and the spontaneity of “cornm~nity.”’~ The recent shift to community exemplifies the ongoing breach between the law and society movement and orthodox legal positivism. The reality of “community” is all too often treated as a taken-for-granted aspect of social reality; its presence is positively valued, while its absence or weakness implies a negative evaluation of that reality.20 This tendency, the myth of community, the positive evaluation of spontaneous, preconstructed sociality, has been a marked trait of American social and political thought.2’ Yngvesson avoids this trap by treating “community” as a discursive construction; she speaks variously of tales of community, visions of community, and the ethic of community.

In Law and Community in Three American Towns Yngvesson and her collaborators reflect on the “paradox of community.”22 This they repre- sented as a persistent tension between an egalitarian conception in which all residents of 6 spatially conceived community are taken to participate and are deserving of mutual acceptance, assistance, and toleration and a hierar- chical dimension that divides residents into the worthy and the unworthy. In what they describe as the “renunciatory dimension of community,” a di-

18. I will assume that this absence of elaboration is because of the extensive discussion of the “paradox of community” in the parallel collaborative book (Greenhouse et al., Law and Community) and that her position is as set out there.

19. This binarism has received a variety of different treatments. For example, Cover distinguished between a “paideic legal order” which espouses the “jurisgenerative” or lawmak- ing capacity of autonomous communities and an “imperial” legal order that is “jurispathic” concerned to maintain a unitary order. Robert Cover, “Nomos and Narrative,” 97 Haw. L. Rev. 4, 4 (1983). In somewhat different terms this same idea is captured by Roger Cotterrell who contrasts two competing images of “society” that manifest themselves in law: one “impe- rium” is top-down model of legitimate authority governing subjects, while “community” stresses shared values, normative consensus. Roger Cotterrell, Law’s Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995) (“Cotterrell, Law’s Community”).

20. Bruno Latour provides a rigorous exploration of this ambivalence toward modernity, the nostalgic quest for community, with the contention of his title that “we have never been modem.” Bruno Latour, We Have Never Been Modern (Hemel-Hempstead, Eng.: Harvester- Wheatsheaf, 1993).

21. In Britain, in contrast, the concept of “community” plays a much less significant role in legal discourses (Cotterrell, Law’s Community). I suggest that this is because “community” is conceived much less holistically, not as a shared normative order but rather as a what I term “fragmented community,” as an expression of social boundaries within popu!ations, in which class, as well as ethnic, religious, and other differentiations, mark out those differences.

22. Greenhouse et al., Law and Community (cited in note 5).


vision is drawn between those who exhibit selflessness and restraint and those who fail to exhibit these virtues.23 What is missing from this treatment but is entirely compatible with Yngvesson’s own treatment is the sense of community as an essentially contested concept in which what is at play in discourses, both inside and outside the courthouse, are alternative con- structions of community.

It is far from clear that what is at stake can best be captured as a “paradox of community.” It may be more fruitful to focus on the role of practices of social closure or of dividing practices as persistent features of social relations. “Community” always involves the drawing of boundaries of exclusions insofar as the very concept involves the differentiation between us/them, insiderloutsiders. When community is conceived in one of its common forms as an inclusive residential territory, it is only those outside the spatial boundaries who unproblematically fall outside the community; and this of course is the common American vision of the settlement community which continues to play a powerful mythological role in the imaginary of the self- regulating town meeting. The process is more complex when other dividing practices, such as religion, ethnicity, moral worth, class, and the other mechanisms of social closure, produce conceptions of community which re- main powerful points of identity even when their boundaries lose a simple spatial reference. It is here that the extrapolation of Benedict Anderson’s concept of “imagined community”24 has such purchase. Confronted with the reality of the multiplicity of communities, the idea of the imagined community provides the means of thinking of both the forms of identity and separation of what may be called the real world of community. This reality of fragmented and fractured communities makes it possible to explore the dynamics of such relations while abandoning the mythology of the unitary community.

One potentially fruitful way of thinking about community is from the perspective of a sociology of governance. “Community” is no longer a sociological description of some types of social relations, but rather it identifies the discursive content of those social practices that constitute closures, boundaries, and divisions. This is what I found submerged in what I described above as a certain unevenness of the presentation of Yngvesson’s research data. We gain valuable insight into the alternative conceptions of community of court officials and complainants, but only in the rather different case of the conflict over land use in Leverett do we get a sense of rival projects of community held by complainants and their adversaries.

This partial absence of attention to rival projects of community would not be worth commenting on were it not for the fact that this feature tends

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23. Id. at 174 24. Benedict Anderson, Imagmed Communities. Reflections on the Ongm and Spread of

Nationalism (London: Verso, 1983).


to be absent in other contemporary “law and community” studies which, like Yngvesson’s, trace the relations between court officials and one or more local “c~mrnunities.”~~ This is worth drawing attention to because it makes it possible to sharpen a feature that I think is a valuable element in the constitutive theory that I share with scholars working in this field. To start, methodologically, from different projects of community facilitates attending to the differential ways in which discourses of community become articu- lated and acted on by courts and court officials and become instantiated in legal dispositions. To do so makes it possible to keep at the center of attention the way in which law, in its multiple guises, becomes implicated or, to use E. P. Thompson’s suggestive phrase, the way law becomes “imbricated” within social relations. It is this focus which I regard as lying at the heart of constitutive theory.

In terms of Yngvesson’s text, the feature whose richness and depth most fascinated me was the parallel, but distinctively divergent, trajectories of the two proximate communities of Turners Falls and Greenfield. What for me did not emerge because of the way the research data was deployed was any sustained attention to the way those differences worked themselves out in the complaints that came before the local court. This lack, which I readily concede may attest to nothing more than my own idiosyncratic reading, in no way detracts from the more important conclusion that this work is evidence that “law and community” scholarship has come to maturity and holds out enormous prospects for further elaboration as a major strand of the wider law and society movement, attesting to its continuing vitality.

25. This absence is not present in all law and community studies; for example, David Engel focuses on insiders and outsiders, while Carol Greenhouse’s explicit concern is with with “difference.” David Engel, “The Oven Bird’s Song: Insiders, Outsiders, and Personal Injuries in an American Community,” 18 Law E3 Soc’y Rev. 551 (1984); Greenhouse, Praying fur Justice (cited in note 5 ) .

Law, Community, and Everyday Life: Yngvesson's Virtuous Citizens and Disruptive Subjects

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