Good afternoon, and welcome
to the 48th annual James R.
Killian Jr Faculty
Achievement Award lecture.
My name is Rick Danheiser.
And as chair of the MIT faculty,
it is my honor and privilege
to introduce this year's Killian
Award lecturer, professor Susan
Silbey.
Before we begin, I ask that
you silence electronic devices.
The James R. Killian
Faculty Achievement Award
was established in
the spring of 1971
as a permanent tribute
to Dr. James R. Killian,
president of MIT
from 1948 to 1959
and chair of the MIT
corporation from 1959 to 1971.
The purpose of the Killian Award
is to recognize and celebrate
extraordinary achievement
by MIT faculty members
and to communicate their
accomplishments to members
of the Institute community.
The title of Killian
lecturer is the highest honor
that the MIT faculty may
bestow on a colleague.
It is our privilege
today to be addressed
by Susan Silbey, the
Leon and Anne Goldberg
professor of humanities
and professor of sociology
and anthropology in the School
of Humanities, Arts, and Social
Sciences, and also professor of
behavioral and policy sciences
in the Sloan School
of Management.
As noted by our colleagues on a
Killian award committee, which
was chaired by Professor
Anne McCants this year,
Professor Silbey is a world
renowned associate sociologist
of law, celebrated
for her groundbreaking
work on legal consciousness
and regulatory governance, most
recently in scientific contexts.
She explores how the
exercise of law or legality
is based in the routine
transactions and relationships
among ordinary people,
arguing that in order
to understand how the
rules of law operate,
we need to see how they
are interpreted, defended,
negotiated, and resisted by
people as they do their jobs
and go about their daily lives.
Toward this end,
Professor Silbey
has championed the
use of narrative,
the stories people
tell about themselves
and their experiences as
both an object of study
and as a method of
sociological inquiry.
In the Common Place of Law--
stories from everyday life, she
and co-author Patricia Ewick
explored the gap between
the letter of the law
and people's
perceptions of legality.
This study received
special recognition
from the American
Sociological Association.
Professor Silbey has a
tremendous record of service.
She served as chair
of the MIT faculty
from 2017 to 2019, a
role in which she helped
to guide the consultative
process that preceded
the announcement of the
College of Computing,
as well as the establishment
of faculty working groups
to provide input on the
structure, operation,
and vision of the college.
Professor Silbey previously
served as the secretary
of the faculty.
And from 2006 to
2014, she was head
of the anthropology section.
Outside of MIT, Professor
Silbey is currently
a member of the National
Academy of Sciences Committee
on science, technology,
and law, as well
as serving on the board of
trustees of the Law and Society
Association, and the
board of directors
of the Boston psychoanalytic
society and institute.
She previously has served
as president of the law
and society association.
This is just a small sample of
Professor Sylvie's leadership
and contributions, both within
and beyond the Institute.
She has received numerous
professional accolades,
including recognition
for her teaching
and mentoring at both the
undergraduate and graduate
levels from Wellesley College,
the American Sociological
Association, the Law
and Society Association,
and the MIT school
of humanities, arts,
and social sciences.
And in 2017, she received
a rookie advisor award
for outstanding first year
student advising at MIT.
All this but scratches the
surface of Professor Silbey's
significant accomplishments.
Susan, will you join me
at the lectern please?
[APPLAUSE]
Susan Silbey, it is my privilege
as chair of the faculty,
representing the faculty, to
honor you with the Killian--
James R. Killian Jr
Faculty Achievement
Award, recognizing your
insatiable curiosity,
your extraordinary record of
professional accomplishment,
your generous mentorship,
and last but not least,
your leadership-- your important
leadership contributions
at MIT.
Congratulations.
[APPLAUSE]
Thank you, Rick, for a
very gracious introduction.
And I also want to thank the
committee that selected me
and the colleagues
who nominated me.
Although I'm going to deliver
a torrent of words to you
in the time we have
together, I find
it very difficult to find
the exact words to express
how deeply and truly
honored I am by this award.
I thank you.
We're living in
rather hard times,
locally, nationally,
internationally,
and I hope by the
end of my remarks
that you will have a slightly
better intuition for how
a social scientist tries
to unravel and make
sense of challenges like these.
So let's start.
Some of my earliest and
fondest memories from childhood
are the times that I
accompanied my father
to his office in the New
York State Labor Department
in Foley Square in
downtown Manhattan.
You might recognize Foley Square
with the iconic courthouse that
is often on TV.
The state office
building is the one
to the left with the flat roof.
And I think my father's
office was perhaps
on the eighth floor.
He was a supervisor in
the State Labor Department
responsible for enforcing
the labor laws for Manhattan
and Brooklyn, a
lot of businesses
in Manhattan and Brooklyn.
Wages and hours, working
conditions, things like that.
I would play in the side of
the office with the machines.
I'd fill out the forms.
I'd put my name
on the stationery,
fantasizing for
myself a job, while he
would listen to his
investigators as they came in.
But the best part of the day
was when we went to lunch.
He would always take me to
lunch either in Chinatown, which
is right behind Foley
Square, or sometimes we'd
go a little further across
Canal Street to Little Italy.
But as we would
walk to lunch, he
would explain to
me what was going
on in each one of
the businesses.
This one here is
underpaying the workers.
This one over here
allows too much homework.
And this one over here is
a nice little business.
Nice little business was
one of his favorite phrases.
But as we would walk along the
street, it became clear to me
that not only did he
know the shopkeepers
and the restaurateurs,
but they knew him.
And it seemed very
special and important.
And it only dawned on
me a few years ago,
that I have spent my entire
career studying my father's
work, how the law coordinates
the work and lives
and businesses of
ordinary people.
One of the sociologists at
the University of Chicago,
where I studied, James
Coleman, said it this way.
The law is the profession
for which social organization
is the field of operations.
When we talk about law, what
are we actually talking about?
Oliver Wendell Holmes
thought that was not
the important question.
The important question was
how did the law really work?
Turns out these are
not easy questions
because the law is one
of the oldest lived
human institutions.
In its essential form as third
party adjudication of disputes,
it's quite the same in many
ways over these 4,000 years.
How is it possible
for an institution
to remain so much like
itself through so much
historical and political
and social change?
What explains this durability?
What is the law after all?
My research has asked
how the rule of law
coordinates social life?
How do we empirically
observe the rule of law?
The empirical question
might seem obvious.
After all, we all know
what the law is, right?
When I say rule of law,
what are you thinking about?
Is this what you're
thinking about--
statutes, local ordinances?
Are these the things
you've actually read?
All those footnotes and clauses?
I'm assuming you'll like most
people, and the answer is no.
So if very few people know this
stuff, this is the law, folks.
Take a look at it, OK?
How does it govern our actions?
How do these unfamiliar, dense,
wordy, obscure objects produce
the stability we understand
as the rule of law?
Now most of you know
this law, right?
Well, people think they know it.
They recognize it.
But as we have
recently seen, they
do not understand it
very well, right--
notoriously subject to debate.
OK, but maybe you don't
think about ordinances
and constitutions, maybe you
think about law stability
if you do at all, of course.
Maybe you think about
lawyers and trials and courts
like the picture
with which I began.
Maybe you think
about this, right?
If you don't
recognize it, that's
the Supreme Court of
the United States, OK?
But it turns out, just like
statutes, most people do not
know or experience the
courts, other than movies
and TV, which if you didn't
know, are not accurate.
OK, turns out that most
people don't go to court
nor work regularly with lawyers.
Now your experience as faculty
members and staff at MIT
might involve many more
lawyers than most people.
But as you know, you're
not like most people, OK?
But even jury duty does
not provide much experience
for people.
In any year, less than 1%
of the American population
will be called for jury duty.
Only 25% of those will show
up, and only 2% of the 1%
will serve, which means
that over your lifetime,
or over the lifetime of
any American, less than 30%
will ever have any
experience of being in court.
So if we think about law
as statutes, constitutions,
or even courtrooms and juries,
it cannot tell us what the law
means to most people.
These formal
instantiations of the law
are not evidence of how the law
is experienced by most of us.
And thus, they are not
evidence of the law's endurance
as an institution that
organizes our lives.
My scholarly contribution
and innovation, to the sense
it has been one, has
been to look elsewhere
for law's presence
and its force.
What I have done with my work
is to answer the question of how
law endures by looking
at how it is known,
how it is experienced, how
it is interpreted by people
in their everyday lives.
The law that I study
is all around us
in this classroom, our
corridors, on the streets
we navigate everyday.
We live in thoroughly
legally constructed spaces.
My contribution to legal
research and to sociology
has been to study law from
the ground up in the routines
and habits of everyday life.
This work is often described
as a cultural analysis of law,
showing that there are
elements of law embedded
in all sorts of activities.
The signs and symbols are
connected in often unseen ways,
but yet traceable ways, which
I hope to show you today.
I document the ways
in which we citizens
and social actors, not
lawyers, not police,
we participate in
the rule of law--
how we enable the law
to coordinate our lives.
Now you might think that
the law to be applied,
to be able to shape , events
requires enforcement agents.
Well, police, regulators,
courts, all the apparatus
of the compliance staff of
which I study here at MIT,
and it does to some extent.
But it turns out that most
of the time, most people
go along with the law without
anyone threatening force,
without compliance
agents, without dispute,
without opposition
or resistance.
And because most of the time,
most of the people go along
and legal violations
are actually quite rare,
we can speak of a rule of law.
So think about it this way.
I want to use an image now that
may be more familiar at MIT,
something other than this.
There is a wide distribution
of encounters with the law
as I've just shown you
in the construction
of physical spaces, in
the buildings and roads,
in food regulation, in radiation
control, and in baby carriages.
The consistency of the
practices with the written rules
varies we might think
along a normal curve.
So it turned out that
when people started
looking at how the
law actually works,
as people like Oliver Wendell
Holmes, or Brandeis, or Cardozo
urged at the beginning
of the 20th century,
what they observed was a giant
gap between what the law said
and how it was applied.
These men and their
cohort and colleagues
were called legal realists.
And from about the 1920s
on, empirical research
on the law flourished.
But as it turned out,
for the longest time,
scholars were looking
at only one tail
of what this distribution
of different kinds
of legal encounters were.
The gap that the legal
realists and social scientists
identified was about
law's failures,
when regulation is inconsistent
or fails altogether,
such as in the Boeing 737.
Or when the police arrest with
no intention of prosecuting,
or fail to arrest when
they observe a crime,
or when courts convict innocent
people as the recent wave
of exonerations has shown.
Now at the other
end of the curve,
we have events where law
is followed so strictly
that its purposes are lost.
And this is the
frustrating bureaucracy,
in which filling
out forms becomes
more important than the
action in which the forms are
meant to initiate.
In the enormous
variation of situations
in which the law
touches, some are
clearly closer to legal
expectations than are others.
And of course, it may turn
out to be not a normal curve.
But for sure, there
are smaller numbers
at either end of the curve.
So we asked ourselves,
how can the law in action
be so different from
its formal written rules
and still sustain so much
allegiance and legitimacy?
This question set
me on a new path.
When I realized
that we were looking
at the tails of
the distribution,
I began to use this
image to describe
the variations in
what we were studying
and knew about the law.
I set a new agenda for
sociolegal scholars.
This was our first innovation.
In the middle range, in
the hump of the curve,
we have a much larger
number of social action
where there is conformity
and consistency
with legal regulations.
And we realize that very
few scholars were actually
studying in the middle where
the rules and laws actually
organize behavior with minimal
contest or confrontation.
So this is what
our research did.
We shifted the focus from the
gap between practice and rule
to focus on conformity, asking
how the law was actually really
organizing social relations?
When did people turn to law?
And when did they not when
they might have been able to?
To do this, we made
methodological changes
to the way in which people had
been studying legal practices.
So for the longest time, there
were two kinds of research.
There were lots
and lots of surveys
of large national
samples which could be
generalized to the population.
These surveys were 15-20
minutes on the telephone.
And the results were
absolutely consistent.
Americans love the law.
But then the anthropologists
and sociologists
would go and live with
people in their communities
for long periods of time.
It would be a
community in Georgia,
another one in Illinois.
But these were
not generalizable.
And what did they find?
That people avoided the law.
They resisted it.
I truly had an aha moment.
There was the little
light bulb, truly went off
above my head when I realized
then these different methods
were producing different
results and these were not just
disciplinary competitions
talking past each other.
And so we made a second
methodological innovation
to combine these methods.
And we made a random
stratified sample
that could be
generalized to a state
with hundreds of
people-- it turned out
to be over 430 people.
And we would therefore
reproduce the generalizability
of the surveys, but we would
be like the anthropologists
and sociologists,
and we would not
be satisfied with a 15
or 20 minute phone call.
But we would have long,
slow conversations
with people in their
homes about their lives.
And in these conversations,
which lasted anywhere
from 1 and 1/2 to 5 hours, we
asked them not about the law--
we asked them about their lives.
We asked them to tell us
about events in their lives,
if they had ever been
bothered by a problem.
Have you ever been bothered by
traffic issues, parking issues,
shopping, tried to return a
product that wasn't returned?
Schools, government,
taxes, we asked
about 99 different prompts.
Did this ever happen to you
and did you have a problem?
And when people would say, well,
what do you mean by a problem--
we would say anything that was
not the way you wanted it to be
because we wanted
their definition,
not the law's or
somebody else's.
At the end, if we did not hear
about the law, about 2/3 or 3/4
of the way through,
we would specifically
ask them, have you ever
had a legal encounter?
And we would reproduce
the exact survey
that had been
distributed nationally.
So these 430 people
we interviewed
ranged from millionaire venture
capitalists, construction
workers, teachers, hairdressers,
painters, welfare recipients.
I don't have time today to
discuss the mode of analysis,
but you can register on one
of my classes if you like.
It took us three to four
years to analyze the data.
And from these
430 interviews, we
heard about over
5,900 separate events.
And from these we identified
three distinct narratives
of law we call before
the law, with the law,
and against the law.
Together they represent
the American legal culture,
how people talk, how people
interpret, understand,
and assess the law
and the legal system.
Others have now
confirmed our model
with follow up research in China
and Japan, Australia, South
America.
Apparently these stories
circulate globally
in popular culture
and in conversations.
They provide the
terms and practices
that symbolize the law as
a resilient institution.
Now it turns out the stories
as we have constructed
them have a specific
representational structure,
which I will fill
in on this matrix.
But before I do, I want
you to understand--
and this is essential,
that these stories are not
types of persons.
It is not that one person
tells a before story
and another person
tells a with story.
Black, white, old, young,
middle and working class
told us all pieces of these
stories with one exception
which you can ask me about.
When I share each of these
stories with you now,
I hope you will hear the
predictable narrative elements.
Each of the stories will have
a point, a message, a set
of normative claims or values.
Each will have mechanisms,
behavioral mechanisms,
capacities, and
constraints on action--
what in sociology we call
structure and agency.
And each one of these
stories locates the law
in different places and times.
And finally, each has a
different protagonist.
Each story positions the
speaker in relationship
to law and legality either
as a supplicant, a player,
or a resistor.
So one story we call
before the law, which
we borrow from
Kafka, legality is
imagined as an objective
realm of disinterested action,
removed and distant from
the lives of individuals.
In this story, the
law is majestic,
operating by known
and fixed rules
in carefully delimited spaces.
Here legality is
envisioned and enacted
as if it was a separate
sphere from everyday life,
distinctive, yet authoritative
and predictable--
rule bound, relatively
fixed, and impervious
to individual action.
Now obviously this is also
the law's story about itself
of its own awesome grandeur of
the rule of law and not of men
engraved in all those marble
pediments above courthouses
across the nation.
Something that transcends
by its history and its
processes the persons and
conflicts of the moment.
It is often regarded as
somewhere else, a place very
different from everyday life.
Objective rather
than subjective,
defined by its partiality.
So let me now quote and read
from an interview with a woman
we call Rita Michaels.
She is a white,
middle class, divorced
woman working as
an office manager
to support two sons in college.
She lives in a meticulously,
absolutely meticulously neat
and well maintained home in
a lower middle class area
in a much more affluent town.
After having been married for
17 years, during which time
her husband had been chronically
unemployed, eventually
refusing to work, Mrs. Michaels
decided to get a divorce.
Her decision, she said
was difficult and painful.
Her family were Roman
Catholic, and they did not
support her decision.
And her friends
and her neighbors
did not understand
the situation.
And now I'm going to quote.
The neighborhood was a
very nice neighborhood.
People knew me from when my kids
were little, knew my husband.
But no one-- no one
really knows what goes on
in someone else's house.
So when I was in the process
of doing this divorce,
a couple of my neighbors
really were very upset.
And my husband went
and told these people
that I was this terrible person,
and I was throwing him out.
Later in the interview,
Rita Michaels said,
and I quote again, the
neighbors, their acceptance
of the fact that I was doing
this terrible thing, that I
was a terrible person--
I don't know, I think maybe
that was the most painful.
Talking about her
relationship with her family
and her neighbors brings
Rita Michaels to a story
exactly about the law.
And Ms. Michaels said,
quote, the divorce
was a rather pleasant
experience, believe it or not.
The court experience,
what it felt
like to go to the courtroom,
and face the judge,
I don't mean that it
was really pleasant.
I just think that I was
pleasantly surprised
because the judge had
evidently read all of whatever
they have before time.
It was evident he had
done his homework.
I don't think I was
in that court more
than I would say 45 minutes,
and he awarded me the divorce.
He said there was
no reason for me
to have to live under
these conditions,
left me with such
a good feeling,
that I did do the right thing.
And he thought it
was right also.
Funny, because I remember
his exact words because it
left such a lasting impression.
In contrast to her
family and her neighbors,
the judge affirmed her
experience and her decision
to get a divorce.
She found validation
she had not expected.
Rejected and stigmatized
by her family and friends
and feeling outside the
moral universe they guarded,
Mrs. Michaels found
the law offered
an alternative moral order in
which she was neither wrong
nor morally deviant.
These legal values, these
rights and expectations
for marital duties were
less specific and partial
than the world of her
family and her friends.
Her husband had not
fulfilled his obligations
under these general, perhaps
even universal set of norms.
She took comfort in
the fact that she
could point to
these expectations
as legitimating her action.
Here Ms. Michaels is
articulating a very traditional
conception of the function
of legal ordering, protection
of the individual
against local norms.
A protection that
derives from the fact
that legality resides
outside of the local.
Whereas her neighbors
lacked information,
one never knows what goes
on at someone else's house,
and could be swayed by
the misrepresentations
of her husband that she
was a terrible person,
Rita saw the judge
as informed, having
read all, done his
homework, and impartial.
We also heard a second
story we call with the law.
Here legality is
described and played
as a game, a bounded arena in
which pre-existing rules can
be deployed and
new rules invented
to serve the widest range
of interests and values.
This is a terrain of tactical
encounters through which people
marshal resources to
achieve strategic goals.
Rather than existing
outside of daily life
as in the before
story, this one sees
law operating simultaneously
with commonplace events
and activities.
The boundaries thought to
separate law from everyday life
are understood to be
relatively porous.
In this second
story, respondents
display less concern about the
legitimacy of legal procedures
or the universal values
that may be announced.
Instead the story talks about
the value of self-interest
and the effectiveness
of legal rules
for satisfying those interests.
These stories describe a
world of legitimate and quite
respectable competition.
So let's consider the
comments of Raymond Johnson,
an African-American resident
of Camden, New Jersey.
After completing a degree at
one of the state colleges,
Mr. Johnson worked
as a purchasing agent
and as a data processor.
But his employment
had been sporadic,
and so he was supplementing
his unreliable income
by helping with the maintenance
and management of his building.
Mr. Johnson did not get
along well with his landlord.
He told us about an argument
that they had some years back,
and I quote again.
The lease was ending that month.
The landlord was really
very upset about it.
So I said, don't war
with an angry person.
You get nowhere.
All you do is just
perpetuate the conflict.
So I turned around, and I walked
out, waited a half an hour,
called him on the
phone and said that,
according to the lease here,
you cannot cancel the lease.
You have to give me
an option to renew.
Says so right here.
You don't have an
option not to renew.
You have to renew if
I choose to renew it.
Mr. Johnson described
his landlord
as a skilled and
experienced player
in this game of contracts,
entitlements, and interests.
Yet despite the landlord's
skill and reputation,
Raymond Johnson was prepared.
He described his
landlord, my quote again.
This guy was a leading
man in the community.
And he had ties in city hall.
He used to get people evicted
out of here in a week.
They didn't know any better.
He'd intimidate them.
He'd do whatever he
did with city hall,
and he'd get the
paperwork pushed through.
And they'd be gone.
So the landlord went
into this little song
and dance about what he was
going to do and so forth.
And yeah, I said yeah, no matter
how you look at it, if you want
me to persuade you that I have
the right to this apartment,
yeah, we could have
that discussion.
And we did over about a two
week period we talked about it.
Well I had no fear that it
wasn't going to work out.
He couldn't evict me.
The right to the apartment to
which Raymond Johnson alluded
was not a right grounded
in legal principle
or abstract theories of justice.
It was a right he had deduced
from the rules of the game,
the writing on the lease, the
city statutes about housing,
and the ways in which players
get to use the system.
Later in the
interview, Mr. Johnson
declared quite indignantly
and quite defiantly quote,
there is no justice.
You either win or you lose.
As long as you can accomplish
your objectives, you win.
I'm not concerned about justice.
End quote.
Viewing legality as a game
played by known rules which
you can also play to
change, respondents
understood that the skill
and capacity to play varied.
Most often the
capacity was dependent
on financial resources
or experience.
And they often described
law as a commodity
that can be purchased.
There is one aspect
of law however
about which virtually
everyone agreed.
One of the most crucially
consequential resources
that one can mobilize in a
legal encounter is a lawyer.
No matter how competent the
individual, no matter how much
experience citizens
acquire, they generally
acknowledge their amateur
status in relation to lawyers.
Lawyers are the
professional players.
Their skill, experience,
and stock of knowledge
is daunting when compared to
the episodic, uneven resources
of ordinary people.
One of our respondents,
a venture capitalist
we call Charles Reed,
boasted of his skill
as a consummate bargainer
and business man.
As Reed described himself,
and I quote again.
I always get my way.
I always go looking confident.
That's my business,
presentation of self.
I actually interviewed
this man and one
of the most magnificent
homes I've ever been in,
with the sun streaming
through the French doors
the silk drapes
blowing in the wind.
It was an extraordinary
interview.
Nonetheless, Mr.
Reed acknowledged
the determining role
of legal representation
in his business negotiations.
And he told me this story.
Now this guy knows I know
that my lawyer is getting paid
by the hour to sit with me.
And my lawyer is a good guy.
He works for the largest
firm in Philadelphia.
So he knows he's in
a real live law firm.
This is no small time operator.
He knows he's in a
major league ballpark.
And he knows this guy next
to him is now in trouble.
Lawyers are the major
players in the game of law.
As many of our interviewees
told us, having a lawyer
can be the difference
between winning and losing,
whether you're innocent or not.
Take for example,
another respondent
we call John Collier.
Oh, I didn't say all these
names are pseudonyms.
You realize that.
That's why I say we call them.
John Collier believed that
his refusal to hire a lawyer
was decisive in his inability to
defend himself against charges
of illegal dumping.
John vehemently
denied the charges
and appeared in criminal
court without a lawyer.
And during our
interview, he admitted
quite regretfully, he said,
I should have had a lawyer.
By the time of the
incident, I just
didn't think that it
was needed because I
wasn't guilty of a crime.
Well, John Collier's
original belief
that lawyers are necessary
only for the guilty
was undermined when
he went to court.
And I quote, they had pictures
of my truck and everything
in it.
When the lawyer asked
me, is that your truck?
I said yeah.
The prosecutor said I dumped
that stuff all over the ground.
But I actually didn't.
I should have never admitted
that that truck was mine.
If I had had a lawyer,
they would never
had had any evidence.
You know lawyers
are so much smarter
than the average person,
so they sucked me into it.
Although many of our
respondents would not
agree that lawyers are smarter
than the average person,
there was nonetheless
broad agreement
that lawyers are
more manipulative.
And for that reason, they
are dangerous game players.
Although our
interviewees recognized
that the law is enabled by
social resources, financial,
experiential, and
access to lawyers,
they also saw that legality
is not unconstrained.
Not all the rules
are up for grabs.
Because law is a
game, there are rules
that organize how
it is played, those
technicalities that
annoy most of us.
And one rule of all games is
the definition of the end.
60 minutes on the
clock, nine innings,
well, in law there must
be a decision, a verdict.
And respondents talked
about this ending
when they said they did
not want to go to law.
They just wanted the situation
to be over with, to end,
and the law could provide that.
But just as importantly, the
ending had to be indeterminate.
Because if you know the
outcome, you don't go.
And if you know the
outcome, the game is fixed.
OK, third narrative.
This one we call
against the law.
In this account,
law is represented
as a product of unequal power.
Rather than objective and
transcendent, rather than
a game with a set
of rules, legality
is understood to be
arbitrary and capricious.
Unwilling to stand
before the law
and unable to play
with the law, people
act against the law,
employing little ruses,
tricks, subterfuges to evade
and appropriate law's power.
In this account, people
reveal their sense
of being caught within the
law, being up against it,
up against its resources
and its processes,
which override their own
capacity to play by the rules
or keep it at bay.
Finding themselves
entangled this way,
people describe making
do, using whatever
the situation momentarily and
unpredictably makes available,
whether materially
or discursively.
They fashion solutions
that would not
be available otherwise.
How do they make do?
With little forms of resistance,
such as foot dragging,
omissions, ploys, small
deceits, humor, making scenes,
these are the tactics for
those up against the law.
Among the more
interesting tactics people
use is one we call masquerade.
They pretend to be
someone they're not
in order to obtain a service.
It could be from a legal
agent, such as the police,
or utilities, or
hospitals, or merchants.
For example, Jesus Cortez, a
Puerto Rican painter living
in Irvington, New
Jersey, could not
get the police to
respond to his calls
from rowdy teenagers
on his block.
He called repeatedly, and
the police didn't come.
One night, he was frustrated
by his unsuccessful efforts.
And he again called the police
to report teenagers vandalizing
his building.
But this time, he raised his
voice several octaves higher,
pretended to be a woman and
said that he was in danger.
And the police came.
Ada Marx, an
African-American woman
with some experience of
law and organizations,
having worked in the
civil rights movement
and having been active
in her community,
could not get the telephone
company to respond to her calls
for service.
Finally, she called the
headquarters of the company
and asked for the president by
name, said she was the maid.
She was put through immediately.
Relying on the
conventional perception
of working class black
women as domestic servants,
Mrs. Marx used her socially
subordinate position
to leapfrog over the barriers
and organizations established
to keep her kind out.
Other tactics working against
the law of forms of occupation,
literally occupying
space and paper.
Interviewees described
to us sitting in offices
until somebody pays
attention, making
a loud scene in a hospital
because the hospital prefers
quiet, threatening
violence even though they
have no intention of using it.
All to get the attention
that is being denied
by those with greater power.
In resisting, people
seek diverse goals.
For some, it's a sense
of dignity and honor.
For others, it is
to enact revenge.
And yet for others, the purpose
of these momentary resistance
or subterfuge is instrumental,
to avoid an unwanted result,
if only for that moment.
In each instance,
however, the person
recognizes themselves in a
relatively powerless position
against some more
legally, economically,
or socially endowed opponent.
They understand the
situation to be one of power.
And they draw on whatever
they can get, the bare minimum
of what they need.
The cases of resisting are very
importantly rarely cynical.
I'm sorry.
I made a mistake.
They are rarely illegal,
although some scholars talk
about some crime as resistance.
Most often, the resistance
are acts for which the rules
have not yet been written.
As such they are
organizationally
indecipherable, and they are
justified by a vision of law
as unfair, arbitrary,
overwhelming, and unreliable.
I want to emphasize
what I said earlier,
that they are rarely cynical.
They are more often undertaken
with a strong sense of justice,
but justice which is separate
and apart from the law.
Finally, these
acts of resistance
are recounted with
humor and with passion.
So that part of the resistance
lies in telling the story
and passing on the message
that legality can be opposed,
if only for a
moment or a little.
In other words, the
stories of resistance
seem to be to these people
as important as their acts
because the stories
build community and plant
a flag for the future.
So thank you for
listening to my stories.
Let me conclude by giving
you some observations
about the big picture,
explaining how these three
stories are related and how
their connections answer
the question with which I began.
What sustains the
institution of law?
I have just described
these stories
as three stories distinct
from one another,
but they can best be
understood only in relationship
to one another.
They require each other
to be intelligible.
They are not really separable.
Rather than understand
these three stories
as three different or
opposed narratives,
our theory of law's durability
appreciates how these three
stories are connected.
They are the warp
and woof of legality.
We need all three to
explain law's enduring
force and organizing presence.
Consider this.
If we insisted
that the law always
be perfectly fair, objective,
disinterested, impartial,
without exception,
any routine encounter
with the police with many
lawyers and some judges
would lead us to conclude in
the face of abundant evidence
that the law is not fair,
not just, not impartial.
If consent and loyalty relies
on the purity of such ideals,
it would soon evaporate.
But if law is merely a
game, it could also not
sustain its legitimacy over
these thousands of years.
So when legality is
challenged for being
a game or a gimmick of
strategy and unequal resources,
it can be rebutted by
invoking legality's
transcendent character, the
idealist account of justice,
universal principles,
and point to the times,
like Mrs. Michaels.
When the little guy wins, and
sometimes wins for all of us,
let's say in a rights claim
or in a class action suit,
and this works in
both directions.
When the law is
dismissed for being
just abstract, ideal, and
elite, inaccessible enterprise,
irrelevant to ordinary
people, outside of daily life,
it too can be rebutted by
invoking its game-like purposes
and availability.
At any moment the law is both
a transcendent idealized realm
and also a game.
And it turns out that
this is a institutionally
and ideologically
common, typical effect.
We have a general
ahistorical ideal
which is constructed
alongside and in relation
to particular local practices.
It's important to see that
the abstract ideal, the story
before the law is
actually concealing,
when it is articulated, the
social organization connecting
the ideal to the
material practices,
the pragmatic adaptations,
the resource constraints that
are represented in the
story with the law.
What is being concealed
in the formal account?
Well, the inequality of
resources, the mediating role
of lawyers, the gamesmanship,
the playing for rule changes,
that are also part and
parcel alongside the ideals
of equal justice.
The story before the law
obscures the connections
between the myriad
particular instantiations
and the general abstraction.
This is what the social
scientists contribute,
knowledge of what is left
behind, what is obscured,
what is ignored by the
idealized and formalized values
and descriptions.
The social scientist
traces the links
between what might otherwise
be unnoticed connections.
The details concealed
by the normative ideal
of equal justice
under law are treated
as irrelevant anecdotes,
picayune, petty outliers
on that normal curve.
What is concealed by the
engravings on the marble
pediments is the
firsthand evidence
and lived experience
of ordinary people
that might
potentially contradict
the generalized ideal.
Yet this is also what is
absolutely pragmatically
essential.
At the very same time that
legality is represented
and treated as outside
of everyday life,
as it is in the
idealized story, it
must be located securely
within to be powerful,
to be effective.
To be a rule of law, it must
be experienced as all over.
Not just in abstract
ideals, in marble pediments,
or in courtrooms and
law books, but it
must be experienced in property
relations, in market exchanges,
in contracts, in exit
signs and handicap walks,
in radiation protection, and in
chairs, holding parking spots,
and newly shoveled
snowy streets.
These two are evidence of law's
endurance in everyday life.
Thus one reason for
law's resilience
lies in joining the
universality of law
on the books and the
experiential local specific law
in practice.
The duality of intertwining
the two stories
appears to be part of what
makes the rule of law strong.
Now what about the third
story, against the law,
the resistance to law is power?
The third story is also critical
to law's enduring force.
The third story acknowledges
legality's contradictions,
that the law is both
transcendent rule bound
authority and a game available
to resourceful players.
This is at the heart of
resistance, the recognition
of contradictions that
create openings to avoid
the overwhelming power of law.
The third story against the
law is a safety valve and also
a source of social change.
So these three stories together
explain law's enduring force
and its legitimacy
for everyday people
as a system of constrained
decision making,
a game to be played for
interest and protection,
and something to fight
against for social change.
Thank you very much.
[APPLAUSE]
Professor Silbey will now
entertain any questions.
Please use the
microphones in each aisle.
While you're thinking
of your questions,
I want to acknowledge
the people who
have made this work, my
life and career possible.
For this work, Patty
Ewick, sociology department
and Clark University
was my co-author.
And for 20 years, my
research has been managed
by my collaborator [? Ann ?]
[? Covickie. ?] And there is
my wonderful family,
my sister Alma Marion,
and my magnificent and
amazing children, Anna Silbey,
Jeffrey Thompson,
Henry Thompson Silbey,
and Oliver Thompson Silbey,
and my other daughter Jessica
Silbey, Keith Dresser
Charlotte and Harper Dresser.
And of course, my
beloved late husband
Robert Silbey, who has always
been there for my entire life,
more than 50 years.
From the time we were
teenagers when he tutored me
in quantum mechanics,
until the end when
I was helping him edit his
last publications before he
died eight years ago.
And I'm amazed there were seven
papers came out after he died.
I thought it was
funny, and I thought
he would be amused that
I thought it was funny.
He is the reason that
I have been at MIT.
These years have been marvelous.
I used to say to him daily as we
would cross that bridge I have
never been happier in
my work than the years
I've been at MIT capped by
this most auspicious award.
And I thank you very much.
[APPLAUSE]
So you've thought of a question.
I'll start out.
How do you go from that
incredible number of interviews
and like 5,000 events
down to three stories?
OK.
You code, and you
code, and you code.
It took us, as I said,
three to four years.
There were two primary
authors, and then we
had two students
who worked with us.
And we coded each
interview three times
in case we would miss something.
And that was before
Atlas TI or Enviva.
So there is over
near the BU bridge--
I shouldn't say this-- in the
chemistry department's cage,
Bobby put all my data.
And it's there.
And it is paper.
And all the coding
is in paper so
that every code
represents a stack of all
the quotes for that code.
And so then you code.
And you code both
inductively and deductively.
That's the way I do it.
It's not pure grounded theory.
And the codes come from
what the people say.
That's the inductive--
their language.
And then the deductive
is we take concepts
from the literature, and we add
theories with which we began.
And we see.
And we just write
the words next to it.
And then, of course, we xeroxed
all those pieces of paper.
It's a crime, a real crime.
And then we sort them in piles.
And then you have
to have a question.
You must ask
something of the data?
What are you going
to do with all that?
And so the first question as
I teach in my methods class
that you always must ask, did
we find what the others found?
Can we reproduce the
previous research?
And then after you have
reproduced the previous,
if you've got a well-designed
study which we did,
you find something they did not?
And what we found is yes, we
found Americans love the law.
And we found that
they resisted the law.
But we also found that game
story which people hadn't.
And we had all three of them.
So it's coding and sorting and
coding and sorting and coding
and sorting, four years worth.
Thank you for the talk.
So this was all based in
the United States, right?
Yes.
And you said the
study method was
reproduced in other countries--
Yes, it has.
I'm guessing there
was some fraction
of these stories
that kind of fell
into each of those buckets.
And I'm curious to know how that
compares to other countries,
whether people are
always against the law
in certain countries or
with the law in others.
Well, it's very interesting.
I can't answer it that way
because I don't remember
a study like that because
most of the time studies
will put limits on it.
And so there is a game
in this small community
of scholars to see
if you can find
a fourth, a fifth, sixth story.
And so lots of times people
come out with outside the law.
Or I can't remember another one.
But the most recent one
was done in Britain,
and it was done only among
environmental activists.
So that's how the stories--
that's how the research
tries to separate itself,
by going to particular
populations.
And in that article,
I'm thinking
of the footnote at the
moment, I haven't got it.
Halliday and Morgan,
that they decided
that there was a fourth story.
And it was--
I can't remember the
name, but because they
were social movement
activists, I
think it was called
outside the law.
It's very hard on these things
to put quantitative numbers
on them because they're
long interviews.
And so you don't exactly have
the same probe for everybody,
and you don't have a
standard unit of analysis.
The numbers would
be not reliable.
OK, I wish I could
tell you better.
Thank you.
Hi, Susan.
Thank you very much for
that marvelous talk.
I used to teach Chinese
history here as you know.
Yes, I think so.
Legal history.
We looked at legal cases.
Hi, Peter, how are you?
We looked at legal cases
and not statistics.
But I guess my question
is how universal
and how generalizable are
your results from Americans
in the law?
And it's important
because we often
like to say that we
have the rule of law.
And other people don't.
Oh, yes they do.
China doesn't have it.
But I find everything
you say is to be
found in imperial China
and modern China today.
And so what does it mean to say
somebody has the rule of law
and somebody doesn't?
I think there are almost no
relatively peaceful continuing
social groups that do not.
That was my master's thesis.
Thank you for that.
It was the Islamic
empire from 750 to 1250
if you just wanted to know.
Nobody's ever read
it or they shouldn't.
Hi, Susan.
Thanks for a beautiful
talk and for everything
you've brought to this
community with such heart.
I want to ask you in
kind of simplistic terms
about your most recent endeavor
with the College of Computing.
And just sort of a simple
question, given this model
that you've provided
that I think
you've persuaded everyone-- you
should have persuaded everyone
should be persuaded that there's
an abstraction above the rules
and it's the abstraction
above the rules that matter.
No, I didn't say that was
the only thing that mattered.
All three matter.
Fair, yes.
But if you don't get those
abstractions above the rules,
you're missing
something essential.
That's right.
That's correct, yes.
So given that, what
should engineering
have to do with the
law in your view?
It's a simple question.
I think I'm already in
trouble with that one
because I had a faux
pas two weeks ago
and I'm not going to comment.
What should engineering
have to do with the law?
I think engineering-- I'm
going to get in trouble again.
I think I'm not
going to answer that.
Well, let me ask you
a less local question.
Let me point you to
four or five published
articles on engineering.
OK, I'll tell you the
name if I can remember.
One of our articles is called
the dialectical tension
between instrumental and
some other rationality
in engineering, that there is
a tension between adaptation
and rule in engineering.
And in that paper, which I
think is an engineering studies,
argues that--
I can say this because
it's published.
If I get in trouble, I've
published it already,
that engineering education has
suffered for 100 years or more
now with a desire to
embrace more indeterminacy.
And each time it
adds something new.
In order to find out
if they are successful,
it has to be measurable,
and then it confines.
So from the early
20th century, there
has been study after
study after study
that oh, we're
missing human factors.
Or we're missing organization.
Or we're missing business.
And so the curriculum is opened.
Well, then we have to
see if we're successful
so now we confine it to
a recipe to be measured.
And so it constantly has this.
That's my account of what
happens in engineering.
OK.
Hi Susan.
Ethan's next.
Oh, hi.
Let me take the
opportunity to thank you
for teaching us so much, both
here and in Sloan all the time
and for being such a
wonderful colleague.
You're making me nervous,
what's coming now?
So I'm just curious
about legal change
and how it fits into
the three stories.
And I can imagine the second
one was a little more explicit
that it's a game and we can
change city hall and maybe
codes on the books,
and then for first, I
can imagine the third
speaking to the first.
So in some systems,
so resistance
leads to social change
through legal change.
But I can also imagine a
majestic version where we,
oh, we need to change
the law so we go in.
That's rare.
That's rare.
The law changes under
pressure as you know.
It changes-- sometimes the
pressure comes from resistance.
We could see the
Civil Rights movement,
though they had the
law on their side,
it required the social
movement to get it implemented.
But there is a very famous paper
like an early law and society
paper by Marc Galanter, Why
the Haves Come Out Ahead.
And why the haves come out
ahead, and what he means by a
have is not
necessarily financial,
but they are repeat players.
Single shot don't, and
it's the repeat players
who play for the rule changes.
And that's why we have
the internet the way
it is because they set up those
rules over the last 20 years
to get us where we are now
with Facebook and everybody
else because little rule here,
a little rule here, change
the FCC here.
And all of a sudden,
it's out of control.
It's playing the game.
It's the game players.
So that's the bigger.
Hi Susan.
Oh hi, Ethan.
Thank you very
much for your talk.
So this is a very interesting
model of legal institutions,
but is there anything else
that you think this applies to?
Such a good question.
Thought of it on my own.
Well, truth is we think
it is a general theory.
And we have one
published paper on it
that nobody will ever read
[INAUDIBLE] Philip Selznick,
great sociologist at Berkeley.
And in that paper called
the Structure of Culture,
we show at the end, that
this model, probably,
we don't prove it--
it's a hypothesis--
could apply to lots of other
institutions like medicine.
Is medicine a calling of
people who devote their lives
to the service of others?
Or is it an occupation, a
rather well-paid occupation?
Does it rely on science or
does it rely on capital?
OK, you could apply the
same notion to sports.
Right, sports is
a shared ritual.
But it's also mass
consumption, right?
And is it all about skill
and talent or is it also
about capital?
And I won't say what,
you could probably
apply it to science as well.
OK, thank you for asking that.
Time for one last question.
One last one.
Sandy.
Thank you so much for your talk.
So is the relationship that
one has to the law type
typecast by this sort of?
No, no.
Absolutely not.
Is it permeable
because it seems--
Oh no.
People go across.
People tell bits of the stories.
All of them.
Do you want to know?
So we were pushed repeatedly
by our sociology colleagues
who said, well, this just
can't be just random.
We're sociologists
after all and everything
is allocated by demographic
and social positions.
There must be some pattern.
And so we went back, and we
looked, and we coded again.
And we found that
every demographic group
told all three stories except we
had no white upper middle class
men tell us a resistance story.
Now there's a problem.
There's a problem.
We were women interviewers.
I had a few graduate students
at Princeton who I hire.
But so I don't know if
maybe white middle class
men would have told
different stories
if I had a white middle
class interviewer.
But we had African-American
interviewers.
And we had Hispanic
interviewers.
But we did not have
any white middle class
men looking for a part
time job in the early 90s.
Thank you Sandy.
Thank you.
[APPLAUSE]
