Defining the ‘legal’: two conceptions of legal consciousness and legal alienation in administrative justice research

Aidinlis, Stergios

Abstract

In Nobody’s Law (2018), Marc Hertogh introduced the notion of legal alienation as part of a ‘secular’ approach to legal consciousness, i.e. one that does not assume law’s hegemonic power in everyday life. This approach has been criticised, with it being suggested that it does not refute claims about law’s hegemonic power but partly explains resistance to it. I argue here that critical discussion of legal alienation is hampered by the employment of different definitions of the ‘legal’ in legal consciousness studies: from legality as an ongoing social structure to positive/State law. Using the example of administrative justice studies, I demonstrate that this definitional divergence results in confusion about the role of law as a variable in legal consciousness research designs. Is the law what is to be explained, or does the law explain another outcome? In the interest of achieving meaningful and clear analytical constructions of the ‘legal’ in this context, I argue that legal consciousness and legal alienation are concepts that shall be conceived as embodying two different conceptions: ‘identification/non-identification’ and ‘relevance/irrelevance to behaviours, processes or outcomes’. Acknowledging this conceptual distinction is integral to bridging the theoretical and methodological divide between social-scientific and legal approaches to legal consciousness research.

Citation

Aidinlis, S. (2019). Defining the ‘legal’: two conceptions of legal consciousness and legal alienation in administrative justice research. Journal of Social Welfare and Family Law, 41(4), 495-513. https://doi.org/10.1080/09649069.2019.1663024

• Journal Article Type: Article
• Online Publication Date: Sep 10, 2019
• Publication Date: Oct 2, 2019
• Deposit Date: Oct 25, 2024
• Journal: Journal of Social Welfare and Family Law
• Print ISSN: 0964-9069
• Electronic ISSN: 1469-9621
• Publisher: Taylor and Francis Group
• Peer Reviewed: Peer Reviewed
• Volume: 41
• Issue: 4
• Pages: 495-513
• DOI: https://doi.org/10.1080/09649069.2019.1663024
• Public URL: https://durham-repository.worktribe.com/output/2983650