Sociologia do Direito

The Force of Law Toward a Sociology of the Juridical Field by PlERRE BOURDIEU Translators Introduction byRICHARD TERDIMAN Pierre Bourdieu holds the Chair in Sociology at the prestigious College de France Paris He is Directeur dEtudes at lEcole des Hautes Etudes en Sciences Sociales where he is also Director of the Center for European Sociology and Editor of the influential journal Actes de la recherche en sciences sociales Professor Bourdieu is the author or coauthor of approximately twenty books A number of these have been published in English translation The Algerians 1962 Reproduction in Education Society and Culture with JeanClaude Passeron 1977 Out line of a Theory of Practice 1977 Algeria I960 1979 The Inheritors French Students and their Relations to Culture 1979 Distinction A Social Critique of the Judgment of Taste 1984 The essay below analyzes what Bourdieu terms the juridical field In Bourdieus conception a field is an area of structured socially patterned activity or practice in this case disciplinarily and professionally defined1 The field and its practices have special senses in Professor of Literature University of California Santa Cruz BA 1963 Amherst College PhD 1968 Yale University I am grateful to John Henry Merryman Sweitzer Professor of Law Stanford Law School for his generous assistance with terminological and conceptual issues which arose in connection with this translation 1 Bourdieus work has provided a series of analyses of different social fields See for example HOMO ACADEMICUS 1984 on the academic field Champ du pouvoir champ intellectuel et habitus de classe 1 SCOLIES 7 1971 on the intellectual field Genèse et structure du champ religieux 12 REVUE FRANCAISE DE SOCIOLOGIE 1971 on the religious field Le Marchè des biens symboliques 22 ANNEE SOCIOLOGIQUE 49 1973 on the market in symbolic goods LInvention de la vie dartiste ACTES DE LA RECHERCHE EN SCIENCES SOCIALES 67 1975 on the intersection of literature and power LOntologie politique de Martin Heidegger 56 ACTES DE LA RECHERCHE EN SCIENCES SOÇIALES 109 1975 on the intersection of 805 806 THE HASTINGS LAW JOURNAL Vol 38 Bourdieus usage They are broadly inclusive terms referring respectively to the structure and to the characteristic activities of an entire professional world If one wanted to understand the field metaphorically its analogue would be a magnet like a magnet a social field exerts a force upon all those who come within its range But those who experience these pulls are generally not aware of their source As is true with magnetism the power of a social field is inherently mysterious Bourdieus analysis seeks to explain this invisible but forceful influence of the field upon patterns of behaviorin this case behavior in the legal world Bourdieus examples in this essay come mostly though not exclusively from France but his perspective transcends the specificity of any individual legal system He intends his investigation to be a case study of a larger system and of a broad series of patterns in the juridical field in general Not surprisingly Bourdieu takes the law to be a constitutive force in modern liberal societies Thus many of his perceptions and conclusions concerning how the law functions within such societies apply as well to the United States as to France Bourdieus essay considers the world of the law from several related points of view the conceptions that professionals working within the legal world have of their own activity the mechanisms by which their conceptions of the law and those of others within their society are formed sustained and propagated and the objective social effects both within the field and outside of it of the professional work of lawyers and the law Bourdieus central claim is that the juridical field like any social field is organized around a body of internal protocols and assumptions characteristic behaviors and selfsustaining valueswhat we might informally term a legal culture The key to understanding it is to accept that this internal organization while it is surely not indifferent to the larger and grander social function of the law has its own incomplete but quite settled autonomy If we take the term politics in its broadest sense referring to the complex of factors economic cultural linguistic and so on that determine the forms of relation within a given social totality there is thus what might be termed an internal politics of the profession which exercises its own specific and pervasive influence on every aspect of the laws functioning outside the professional body itself philosophy and power Le Champ scientifique 2 ACTES DE LA RECHERCHE EN SCIENCES SOCIALES 88 1976 translated as The Specificity of the Scientific Field and the Social Conditions of the Progress of Reason14 SOCIAL SCIENCE INFORMATION 19 1975 on the scientific field July 1987 FORCE OF LAW 807 To experience the force of law the quasimagnetic pull of the legal field whether as a legal professional as a criminal defendant or as a civil litigant accepting the jurisdiction of a court for resolution of a dispute of course means accepting the rules of legislation regulation and judicial precedent by which legal decisions are ostensibly structured But in this essay Bourdieu claims that the specific codes of the juridical fieldthe shaping influence of the social economic psychological and linguistic practices which while never being explicitly recorded or acknowledged underlie the laws explicit functioninghave a determining power that must be considered if we are to comprehend how the law really functions in society According to Bourdieu such comprehension is possible because the practices within the legal universe are strongly patterned by tradition education and the daily experience of legal custom and professional usage They operate as learned yet deep structures of behavior within the juridical fieldas what Bourdieu terms habitus They are significantly unlike the practices of any other social universe And they are specific to the juridical field they do not derive in any substantial way from the practices which structure other social activities or realms Thus they cannot be understood as simple reflections of relations in these other realms They have a life and a profound influence of their own Central to that influence is the power to determine in part what and how the law will decide in any specific instance case or conflict As Bourdieu points out early in his essay neither of the two major strains of theoretical jurisprudence formalist and instrumentalist has any coherent way of talking about the formation or influence of these pervasive structures that organize the juridical field and thereby influence the decisions of the law2 Bourdieu agrees with instrumentalist theories of jurisprudence to the extent that he strongly believes the juridical field functions in close relation with the exercise of power in other social realms and through other mechanisms Principal among these are the manifold modalities of power controlled by the State But to Bourdieu the juridical field is not simply a cats paw of State power as instrumentalist theory at times tends to suggest Neither is the law just a reflection of these other modal 2 Formalist theories by their nature abstract the functioning of the law from any social determination such as that which is exercised by the juridical field as Bourdieu conceives it Instrumentalist theories accept a notion of determinism but attribute it to the power of socially or economically dominant groups outside the law Neither strain of jurisprudential speculation thus has any room for attributing such determination to the specific organization and practices of the legal world itself That however is precisely what Bourdieu claims here 808 THE HASTINGS LAW JOURNAL Vol 38 ities of state control On the contrary the law has its own complex specific and often antagonistic relation to the exercise of such power In this sense the law exhibits tendencies toward something which appears like the autonomy formalist theory attributes to the law But it does not do so on the same theoretical grounds In Bourdieus conception the law is not by nature and by theoretical definition independent of other social realms and practices as the formalists claim Instead it is closely tied to these But the nature of its relation is often one of intense resistance to the influence of competing forms of social practice or professional conduct for as Bourdieu argues such resistance is what sustains the self conception of the professionals within the juridical field Paradoxically this manner of what we might term negative connection to the extralegal realm is what gives the law the deceptive appearance of autonomy which formalist theory transforms into a theoretical postulate The intricate and problematical forms of relation between the juridical field and other loci of social power then become a central focus of The Force of Law In Bourdieus conception a social field is the site of struggle of competition for control Indeed the field defines what is to be controlled it locates the issues about which dispute is socially meaningful and thus those concerning which a victory is desirable This struggle for control leads to a hierarchical system within the fieldin the case of the juridical field to a structure of differential professional prestige and power attaching to legal subspecialities approaches and so on This system is never explicitly acknowledged as such In fact such an implicit hierarchy is often explicitly contrary to the doctrine of professional collegiality and the theoretical equality of all practicing members of the bar But this hierarchical if covert division of juridical labor structures the legal field in ways which Bourdieus essay endeavors to bring to light For example it pits sole practitioners against members of large firms or corporate attorneys against attorneys for disadvantaged groups or on another level the partisans of more scholarly approaches against those favoring more practical approaches to resolving particular legal issues Much of this structuring and competition happens in the strange linguistic symbolic and hermeneutic3 world in which the struggle for authorized or legitimized interpretation of the texts of the legal corpus and also the texts of legal practice takes place Bourdieu in common with many contemporary Continental social theorists uses an extended notion of the text which may be unfamiliar to many American readers 3 Referring to the science of interpretation July 1987 FORCE OF LAW 809 This conception encompasses not only the written record in the law for example legislation judicial decisions briefs and commentary but also the structured behaviors and customary procedures characteristic of the field which have much the same regularity and are the subjects of much the same interpretive competitions as the written texts themselves In turn and crucially in Bourdieus view professionals within the legal field are constantly engaged in a struggle with those outside the field to gain and sustain acceptance for their conception of the laws relation to the social whole and of the laws internal organization Bourdieu traces in detail the social and particularly the linguistic strategies by which the inhabitants of the legal universe pursue this effort to impose their internal norms on broader realms and to establish the legitimacy of interpretations favorable to the selfconception of the field to the ratification of its values and to the internal consistency and outward extension of its prerogatives and practices Bourdieus emphasis on linguistic and symbolic strategies is worth a further word here He bases his view implicitly on a strain within contemporary philosophy known as speech act theory4 Ordinarily we think of language as describing a fact or a state of affairs But in the concept of the performative the philosopher J L Austin sought to formalize a special linguistic capacity one which is particularly inherent in the law that makes things true simply by saying them5 This power is of course the attribute of judges and judicial decisions among others The texts of the law are thus quintessentially texts which produce their own effects Bourdieu devotes particular attention to this special linguistic and social power of the law to do things with words Essential to that capacityto the laws reproduction and continuation to its legitimation in the eyes of those under its jurisdictionis what Bourdieu terms the laws power of form This power inheres in the laws constitutive tendency to formalize and to codify everything which enters its field of vision Bourdieu connects this tendency with Max Webers speculations about formal rationality6 He argues that this formalization is 4 See J AUSTIN How TO Do THINGS WITH WORDS 1962 J SEARLE SPEECH ACTS AN ESSAY IN THE PHILOSOPHY OF LANGUAGE 1969 Bourdieu by no means accepts Austins and Searles theories without criticism Particularly Bourdieu has been at pains to argue that the force of performative utterances like those considered here is not intrinsic in the abstract speech situation or in language itself but derives also from the force of the social authority whose delegation to a particular individual a judge for example is ultimately sustained by the coercive power of the State 5 The example typically given is itself quasijudicial the monarchs power to ennoble commoners simply by dubbing them and proclaiming that they are now titled 6 See M WEBER ECONOMY AND SOCIETY I 86 passim G Roth C Wittich eds 1978 810 THE HASTINGS LAW JOURNAL Vol 38 a crucial element in the ability of the law to obtain and sustain general social consent for it is taken however illogically as a sign of the laws impartiality and neutrality hence of the intrinsic correctness of its determinations Bourdieu demonstrates the importance of the written formalization of legal texts and the codification of legal procedures to the maintenance and universalization of the tacit grant of faith in the juridical order and thus to the stability of the juridical field itself Like that of a number of his compatriots whose influence in the realm of cultural theory and scholarship has also been considerable Bourdieus writing can be perplexing for readers unaccustomed to the rhetoric of contemporary French research in the human or social sciences But despite frequent charges of abstraction and abstruseness made against writing in this vein it is largely its difference from our own rhetorical habits that can lead to impressions of difficulty In the American context the notion is widespread that research on a familiar subject by virtue of the subjects very familiarity ought to be easily accessible But much Continental work in social science challenges this idea at a fundamental level It asserts that the mysteries of social existence are densest not in the behavior of faroff exotic peoples but in our own everyday usages Here familiarity has bred an ignorance which arises not from the strangeness of the object of investigation but from its very transparency Living within it so thoroughly suffused with its assumptions that it is even hard to recall just when we adopted them we tend to lose the critical perspective which makes social science more than simply a recital of what everyone already knows The common sense of things the knowledge everyone is sure to have is precisely the starting point for the investigations of such a social science If the real meanings of our social practices were what we say and think about them every day then there would be no need for the kind of research that occupies social scientists to begin with Common sense rhetoric is an attractive ideal But many scholars writing in the tradition Bourdieu exemplifies would argue that such rhetoric can disguise as many truths as it reveals For inevitably it reproduces precisely the common assumptions and understandings what Bourdieu terms the doxa as I will discuss below whose misperceptions and inadequacies any indepth research seeks to uncover In putting this common sense to the test by challenging its fundamental assertions and presuppositions writing like Bourdieus also tests and challenges plain commonsense writing styles because they tacitly assume precisely what Bourdieu wants to call into question that reader and writer share a comfortable and unproblematical understanding of the meaning of words of categories July 1987 FORCE OF LAW 811 and of social practices themselves that we already know the truth about the very things which on the contrary Bourdieu claims need to be brought to light7 For Bourdieu it is precisely these meanings and categories these understandings and mechanisms of understanding which are under investigation and which need to be rethought most thoroughly Thus while constantly emphasizing the degree to which the law forms and determines the lives not only of its practitioners but of all citizens in modern social systemsso that we are all inside the juridical field in some senseBourdieu writes purposely and purposefully as an outsider Only by claiming his right to seek critical understanding of precisely what we are all certain we understand more or less naturally about the law can Bourdieu justify his perspective on these everyday realities which surround and so deeply influence our existence This means rediscovering and representing rhetorically the complications the paradoxes and contradictions which our commonsense conceptions complacently round off and simplify A certain asperity of writing style is one consequence of such an attempt The analysis here brings to bear on the world of the law concepts developed earlier in Bourdieus work and elucidated perhaps most systematically in his 1972 Outline of a Theory of Practice Among these concepts are the notions of habitus orthodoxy doxa symbolic capital principles of division symbolic violence and miscognition From Outline of a Theory of Practice Bourdieu draws the notion of habitus the habitual patterned ways of understanding judging and acting which arise from our particular position as members of one or several social fields and from our particular trajectory in the social structure eg whether our group is emerging or declining whether our own position within it is becoming stronger or weaker The notion asserts that different conditions of existencedifferent educational backgrounds social statuses professions and regionsall give rise to forms of habitus characterized by internal resemblance within the group indeed they are important factors which help it to know itself as a group and simultaneously by perceptible distinction from the habitus of differing groups Be 7 Of course I am not suggesting that Continental cultural theorists are alone in making such arguments Suspicion of the commonsensical is at the heart of much social and cultural theory For a refreshing and strikingly illuminating example of such suspicion within the Anglo American tradition see M THOMPSON RUBBISH THEORY THE CREATION AND DESTRUCTION OF VALUE 1979 especially chapter 7 and particularly p 146 812 THE HASTINGS LAW JOURNAL Vol 38 yond all the undoubted variations in the behaviors of individuals habitus is what gives the groups they compose consistency It is what tends to cause the groups practices and its sense of identity to remain stable over time It is a strong agent of the groups own selfrecognition and self reproduction In the Theory of Practice Bourdieu defines and distinguishes orthodoxy and doxa The former is defined as correct socially legitimized belief which is announced as a requirement to which everyone must conform Orthodoxy thus implies some degree of external control Doxa on the other hand implies the immediate agreement elicited by that which appears selfevident transparently normal Indeed doxa is a normalcy in which realization of the norm is so complete that the norm itself as coercion simply ceases to exist as such Symbolic capital for Bourdieu designates the wealth hence implicitly the productive capacity which an individual or group has accumulated not in the form of money or industrial machinery but in symbolic form Authority knowledge prestige reputation academic degrees debts of gratitude owed by those to whom we have given gifts or favors all these are forms of symbolic capital Such symbolic capital can be readily convertible into the more traditional form of economic capital The exchange value of symbolic capital while it cannot be stated to the penny is continuously being estimated and appraised by every individual possessing or coming into contact with it The relevance of a notion of symbolic capital to the study of an important professional field like the juridical is considerable From Distinction Bourdieu draws the notion of principles of division the structured ways different social groups differentiate between rich and poor elite and mass pure and vulgar insiders and outsiders ultimately between what they value positively and what negatively between the good and the bad Division distribution of societys rewards then proceeds along the lines of the principles established Symbolic violence implies the imposition of such principles of division and more generally of any symbolic representations languages conceptualizations portrayals on recipients who have little choice about whether to accept or reject them In Reproduction Bourdieu conceives the education function of the State as the quintessential form of symbolic violence This is because compulsory eductation and the force of pedagogical authority obliges students to conceive their own social situation like the material they study according to the interpretations of them inculcated by their schooling It is not that they must accept these interpretations although there are clear costs for not doing so but that July 1987 FORCE OF LAW 813 even contestation is played out in terms of the assertions implicitly or explicitly made by the authorities who are charged with teaching The term symbolic violence is meant to be provocative and is closely linked with the concept of miscognition Miscognition is the term8 by which Bourdieu designates induced misunderstanding the process by which power relations come to be perceived not for what they objectively are but in a form which renders them legitimate in the eyes of those subject to the power This induced misunderstanding is obtained not by conspiratorial but by structural means It implies the inherent advantage of the holders of power through their capacity to control not only the actions of those they dominate but also the language through which those subjected comprehend their domination Such miscognition is structurally necessary for the reproduction of the social order which would become intolerably conflicted without it It could be argued that such terms and conceptions are no more difficult to understand no more counterintuitive than some of the laws own central concepts The point is that some such specialized and often apparently hermetic language is a constant and invariable condition of the existence of any disciplinary or professional field Bourdieus Force of Law represents exemplifies and investigates the intersection of two such fields the sociological and the juridical Such an intersection or confrontation cannot evade the terminological and conceptual conflict the struggle for conceptual control which by its very nature is implicit in the existence of any field So here in a sense sociology pits itself against the lawnot in a spirit of hostility but in one of intimate critical investigation It seeks to utilize the privilege of external perspective to illuminate the juridical field in a way that for perfectly good and understandable reasons is hardly visible from within the field itself 8 In French the common word méconnaissance the term has also been translated as misrecognition Obviously neither of these coinages is fully satisfactory 814 THE HASTINGS LAW JOURNAL Vol 38 The Force of Law Toward a Sociology of the Juridical Field Da mihi factum dabo tibi jus9 A rigorous science of the law is distinguished from what is normally called jurisprudence in that the former takes the latter as its object of study In doing so it immediately frees itself from the dominant juris prudential debate concerning law between formalism which asserts the absolute autonomy of the juridical form in relation to the social world and instrumentalism which conceives of law as a reflection or a tool in the service of dominant groups As conceived by legal scholars notably those who identify the history of law with the history of the internal development of its concepts and methods formalist jurisprudence sees the law as an autonomous and closed system whose development can be understood solely in terms of its internal dynamic10 This insistence upon the absolute autonomy of legal thought and action results in the establishment of a specific mode of theoretical thinking entirely freed of any social determination Kelsens attempt to found a pure theory of law is only the final result of the effort of formalist thinkers to construct a body of doctrine and rules totally independent of social constraints and pressures one which finds its foundation entirely within itself11 This formalist ideology the professional ideology of legal scholars has become rigidified as a body of doctrine The contrary instrumentalist point of view tends to conceive law and jurisprudence as direct reflections of existing social power relations in which economic determinations and in particular the interests of dominant groups are expressed that is as an instrument of domination The theory of the Apparatus which Louis Althusser has revived exemplifies this instrumentalist perspective12 However Althusser and the 9 Give me the facts and Ill give you the law 10 See eg J BONNECASSE LA PENSEE JURIDIQUE FRANÇAISE DE 1804 A LHEURE PRESENTE LES VARIATIONS ET LES TRAITS ESSENTIELS 1933 11 Kelsens methodology postulated upon limiting investigation to specifying juridical norms and upon excluding historical psychological or social considerations along with any reference to the social functions that the operation of these norms may determine entirely parallels Saussures which founded a pure theory of language upon the distinction between internal and external linguistics that is upon the exclusion of any reference to the historical geographic and social conditions governing the functioning of language or its transformations 12 A general review of Marxist work in sociology of law and an excellent bibliography July 1987 FORCE OF LAW 815 structuralist Marxists are victims of a tradition that believes it has accounted for ideologies simply by identifying their function in society for example the opiate of the masses Paradoxically these structuralists ignore the structure of symbolic systems and in this particular case the specific form of juridical discourse Having ritually reaffirmed the relative autonomy of ideologies13 these thinkers neglect the social basis of that autonomythe historical conditions that emerge from struggles within the political field the field of powerwhich must exist for an autonomous social ie a legal universe to emerge and through the logic of its own specific functioning to produce and reproduce a juridical corpus relatively independent of exterior constraint But in the absence of clear understanding of the historical conditions that make that autonomy possible we cannot determine the specific contribution which based on its form the law makes to the carrying out of its supposed functions The architectural metaphor of base and superstructure usually underlies the notion of relative autonomy This metaphor continues to guide those who believe they are breaking with economism14 when in order to restore to the law its full historical efficacy they simply content themselves with asserting that it is deeply imbricated within the very basis of productive relations15 This concern with situating law at a deep level of historical forces once again makes it impossible to conceive concretely the specific social universe in which law is produced and in which it exercises its power In order to break with the formalist ideology which assumes the on the subject can be found in Spitzer Marxist Perspectives in the Sociology of Law 9 ANN REV Soc 103 1983 13 Bourdieu refers here to Althussers discussion of ideology and law in Ideology and Ideological State Apparatuses Notes Toward an Investigation in LENIN AND PHILOSOPHY 127 135 36 B Brewster trans 1971 Relative autonomy refers to the notion in certain versions of Marxist theory that although the economy the base determines social existence in the last instance certain aspects of social lifeie those taking place within the realm of what Marxism has traditionally termed the social superstructure the realm of politics the law and ideologyare relatively free of such determination by the economic base which tends to intervene and dominate only when a crisis of overt conflict occurs between the economy and other social levels Translators note 14 Economism refers to a tendency within Marxist political practice to emphasize economic determination so completely that other social elementsparticularly ideological and politicalare simply neglected as irrelevant Translators note 15 See eg EP THOMPSON WHIGS AND HUNTERS THE ORIGIN OF THE BLACK ACT 261 1975 Thompson is a widelyknown British Marxist historian author of the classic MAKING OF THE ENGLISH WORKING CLASS 1963 He has written an important attack on Althusserian theory THE POVERTY OF THEORY AND OTHER ESSAYS 1978 Translators note 816 THE HASTINGS LAW JOURNAL Vol 38 independence of the law and of legal professionals without simultaneously falling into the contrary instrumentalist conception it is necessary to realize that these two antagonistic perspectives one from within the other from outside the law together simply ignore the existence of an entire social universe what I will term the juridical field which is in practice relatively independent of external determinations and pressures But this universe cannot be neglected if we wish to understand the social significance of the law for it is within this universe that juridical authority is produced and exercised16 The social practices of the law are in fact the product of the functioning of a field17 whose specific logic is determined by two factors on the one hand by the specific power relations which give it its structure and which order the competitive struggles or more precisely the conflicts over competence that occur within it and on the other hand by the internal logic of juridical functioning which constantly constrains the range of possible actions and thereby limits the realm of specifically juridical solutions At this point we must consider what separates the notion of the juridical field as a social space from the notion of system developed for example in Niklas Luhmanns work18 Systems theory posits that legal structures are selfreferential This proposition confuses the symbolic structure the law properly so called with the social system which produces it To the extent that it presents under a new name the old formalist theory of the juridical system transforming itself according to its own laws systems theory provides an ideal framework for the formal and abstract representation of the juridical system However although a symbolic order of norms and doctrines contains objective possibilities of development indeed directions for change it does not contain within itself the principles of its own dynamic19 I propose to distinguish this symbolic order from the order of objective relations between actors and institutions in competition with each other for control of the right to determine the law For in the absence of such a distinction we will be unable to understand that while the juridical field derives the language in which its conflicts are expressed from the field of conceivable perspec 16 Concerning the notion of symbolic violence see the Translators Introduction supra Such authority is the quintessential form of the legitimized symbolic violence controlled by the State Of course such symbolic violence easily coexists with the physical force which the State also controls 17 See Translators Introduction supra 18 N LUHMANN SOZIALE SYSTEME GRUNDRISS ElNER ALLGEMEINEN THEORIE 1984 Luhmann Die Einheit des Rechtssystems 14 RECHTSTHEORIE129 1983 19 P NONET P SELZNIK LAW AND SOCIETY IN TRANSITION TOWARD RESPONSIVE LAW 1978 July 1987 FORCE OF LAW 817 tives the juridical field itself contains the principle of its own transformation in the struggles between the objective interests associated with these different perspectives The Division of Juridical Labor I The juridical field is the site of a competition for monopoly of the right to determine the law Within this field there occurs a confrontation among actors possessing a technical competence which is inevitably social and which consists essentially in the socially recognized capacity to interpret a corpus of texts sanctifying a correct or legitimized vision of the social world It is essential to recognize this in order to take account both of the relative autonomy of the law and of the properly symbolic effect of miscognition that results from the illusion of the laws absolute autonomy in relation to external pressures Competition for control of access to the legal resources inherited from the past contributes to establishing a social division between lay people and professionals by fostering a continual process of rationalization Such a process is ideal for constantly increasing the separation between judgments based upon the law and naive intuitions of fairness The result of this separation is that the system of juridical norms seems both to those who impose them and even to those upon whom they are imposed totally independent of the power relations which such a system sustains and legitimizes The history of social welfare law droit social20 clearly demonstrates that the body of law constantly registers a state of power relations It thus legitimizes victories over the dominated which are thereby converted into accepted facts This process has the effect of locking into the structure of power relations an ambiguity which contributes to the laws symbolic effectiveness For example as their power increased the legal status of American labor unions has evolved although at the beginning of the nineteenth century the collective action of workers was condemned as criminal conspiracy in the name of protecting the free market little by little unions achieved the full recognition of the law21 Within the juridical field itself there exists a division of labor which is established without any conscious planning It is determined instead 20 In France all law relating to social welfare is categorized as droit social literally social law Translators note 21 See Blumrosen Legal Process and Labor Law in LAW AND SOCIOLOGY 185225 WM Evans ed 1962 818 THE HASTINGS LAW JOURNAL Vol 38 through the structurally organized competition between the actors and the institutions within the juridical field This division of labor constitutes the true basis of a system of norms and practices which appears as if it were founded a priori in the equity of its principles in the coherence of its formulations and in the rigor of its application It appears to partake both of the positive logic of science and the normative logic of morality and thus to be capable of compelling universal acceptance through an inevitability which is simultaneously logical and ethical II Unlike literary or philosophical hermeneutics the practice of interpretation of legal texts is theoretically not an end in itself It is instead directly aimed at a practical object and is designed to determine practical effects It thus achieves its effectiveness at the cost of a limitation in its autonomy For this reason divergences between authorized interpreters are necesarily limited and the coexistence of a multitude of juridical norms in competition with each other is by definition excluded from the juridical order22 Reading is one way of appropriating the symbolic power which is potentially contained within the text Thus as with religious philosophical or literary texts control of the legal text is the prize to be won in interpretive struggles Even though jurists may argue with each other concerning texts whose meaning never imposes itself with absolute necessity they nevertheless function within a body strongly organized in hierarchical levels capable of resolving conflicts between interpreters and interpretations Furthermore competition between interpreters is limited by the fact that judicial decisions can be distinguished from naked exercises of power only to the extent that they can be presented as the necessary result of a principled interpretation of unanimously accepted texts Like the Church and the School Justice organizes according to a strict hierarchy not only the levels of the judiciary and their powers and thereby their decisions and the interpretations underlying them but also the norms and the sources which grant these decisions their authority23 Thus the juridical field tends to operate like an apparatus to the extent that the cohesion of the freely orchestrated habitus24 of legal inter 22 See AJ ARNAUD CRITIQUE DE LA RAISON JURIDIQUE 2829 1981 Scholz La raison juridique à loeuvre les krausistes espagnols in HISTORISCHE SOZIOLOGIE DER RECHTSWISSENSCHAFT 3777 E Volkmar Heyen ed 1986 23 Mastery of such norms can be recognized among other signs in the art of maintaining the order and style which have been recognized as proper in citing ones authorities See Scholz supra note 22 24 See the Translators Introduction supra for discussion of the concept of habitus July 1987 FORCE OF LAW 819 preters is strengthened by the discipline of a hierarchized body of professionals who employ a set of established procedures for the resolution of any conflicts between those whose profession is to resolve conflicts Legal scholars thus have an easy time convincing themselves that the law provides its own foundation that it is based on a fundamental norm a norm of norms such as the Constitution from which all lower ranked norms are in turn deduced The communis opinio doctorum the general opinion of professionals rooted in the social cohesion of the body of legal interpreters thus tends to confer the appearance of a transcendental basis on the historical forms of legal reason and on the belief in the ordered vision of the social whole that they produce25 The tendency to conceive of the shared vision of a specific historical community as the universal experience of a transcendental subject can be observed in every field of cultural production Such fields appear as sites in which universal reason actualizes itself owing nothing to the social conditions under which it is manifested In The Conflict of Faculties Kant noted that the higher disciplinestheology law and medicine are clearly entrusted with a social function In each of these disciplines a serious crisis must generally occur in the contract by which this function has been delegated before the question of its basis26 comes to seem a real problem of social practice This appears to be happening today27 III Juridical language reveals with complete clarity the appropriation effect inscribed in the logic of the juridical fields operation Such language combines elements taken directly from the common language and elements foreign to its system But it bears all the marks of a rhetoric of impersonality and of neutrality The majority of the linguistic proce 25 According to Andrew Fraser the civic morality of the body of judicial professionals was based not upon an explicit code of regulations but upon a traditional sense of honor that is to say upon a system in which what was essential in the acquisition of the skills associated with the exercise of the profession went without saying See Fraser Legal Amnesia Modernism vs the Republican Tradition in American Legal Thought 60 TELOS15 1984 26 Some writers such as Kelsen have raised this question albeit theoretically thus transposing into the legal realm a traditional problem of philosophy 27 The case of the lower disciplines is different With philosophy mathematics history etc the problem of the basis of scientific knowledge is raised in the reality of social existence itself as soon as the lower discipline finds itself established as such without any support except that of the judgment of authorities Those who refuse to accept as do Wittgenstein and Bachelard that the establishment of the authorities which is the historical structure of the scientific field constitutes the only possible foundation of scientific reason condemn themselves either to selffounding strategies or to nihilist challenges to science inspired by a persistent distinctly metaphysical nostalgia for a foundation which is the nondeconstructed principle of socalled deconstruction 820 THE HASTINGS LAW JOURNAL Vol 38 dures which characterize juridical language contribute to producing two major effects The neutralization effect is created by a set of syntactic traits such as the predominance of passive and impersonal constructions These are designed to mark the impersonality of normative utterances and to establish the speaker as universal subject at once impartial and objective The universalization effect is created by a group of convergent procedures systematic recourse to the indicative mood for the expression of norms28 the use of constative verbs in the present and past third person singular emphasizing expression of the factual which is characteristic of the rhetoric of official statements and reports for example accepts admits commits himself has stated the use of indefinites and of the intemporal present or the juridical future designed to express the generality or omnitemporality of the rule of law reference to transsubjective values presupposing the existence of an ethical consensus for example acting as a responsible parent and the recourse to fixed formulas and locutions which give little room for any individual variation29 Far from being a simple ideological mask such a rhetoric of autonomy neutrality and universality which may be the basis of a real autonomy of thought and practice is the expression of the whole operation of the juridical field and in particular of the work of rationalization to which the system of juridical norms is continually subordinated This has been true for centuries Indeed what we could call the juridical sense or the juridical faculty consists precisely in such a universalizing attitude This attitude constitutes the entry ticket into the juridical fieldaccompanied to be sure by a minimal mastery of the legal resources amassed by successive generations that is the canon of texts and modes of thinking of expression and of action in which such a canon is reproduced and which reproduce it This fundamental attitude claims to produce a specific form of judgment completely distinct from the often wavering intuitions of the ordinary sense of fairness because it is based upon rigorous deduction from a body of internally coherent rules It is also one of the bases of a uniformity which causes individual attitudes to converge and to sustain each other and which even in the competition 28 Philosophers within the natural law tradition subscribe to this longrecognized trait in order to claim that juridical texts are not normative but rather descriptive and that legislators simply identify what is not what ought to be that they utter what is just or justly distributed according to what is written as an objective property into things themselves The legislator prefers to describe legal institutions rather than establishing rules directly G KALINOWSKI INTRODUCTION A LA LOGIQUE JURIDIQUE 33 1964 29 SeeJ L SOURIAUX P LERATLE LANGUAGE DU DROIT 1975 July 1987 FORCE OF LAW 821 for the same professional assets unifies the body of those who live by the production and sale of legal goods and services IV The development of a body of rules and procedures with a claim to universality is the product of a division of labor resulting from the competition among different forms of competence at once hostile and complementary These different forms of competence operate as so many forms of specific capital associated with different positions within the juridical field The comparative history of law would no doubt sustain the view that given varying juridical traditions and varying moments within the same tradition the hierarchical ranking of the different classifications of legal actors and of the classifications themselves have varied considerably depending upon specific periods and national traditions and upon the areas of specialization they designatefor example public versus private law Structural hostility even in the most diverse systems sets the position of the theorist dedicated to pure doctrinal construction against the position of the practitioner concerned only with the realm of its application This hostility is at the origin of a permanent symbolic struggle in which different definitions of legal work as the authorized interpretation of canonical texts confront each other The different categories of authorized interpreters tend to array themselves at two opposite poles On the one hand are intepretations committed to the purely theoretical development of a doctrinethe monopoly of professors of law responsible for teaching the rules currently in force in normalized and formalized forms On the other hand are interpretations committed to the practical evaluation of a specific casethe responsibility of judges who carry out acts of jurisprudence and who are thereby able at least in certain instances to contribute to juridical construction In fact however the producers of laws rules and regulations must always take account of the reactions and sometimes of the resistances of the entire juridical body specifically of the practitioners Such experts can put their juridical competence in the service of the interests of certain categories of their clientele and add strength to the numerous tactics by which those clients may escape the effects of the law The practical meaning of the law is really only determined in the confrontation between different bodies eg judges lawyers solicitors moved by divergent specific interests Those bodies are themselves in turn divided into different groups moved by divergent indeed sometimes hostile interests depending upon their po 822 THE HASTINGS LAW JOURNAL Vol 38 sition in the internal hierarchy of the body which always corresponds rather closely to the position of their clients in the social hierarchy The result is that the comparative social history of juridical production and of juridical discourse on that production systematically specifies the relation between the positions taken in that symbolic struggle on the one hand and the positions occupied in the division of juridical labor on the other The tendency to accentuate the syntax of the law is rather characteristic of theoreticians and professors while attention to the pragmatic side is more likely in the case of judges But a social history should also consider the relation between the variations in the relative power of these two polar orientations concerning juridical work variations which depend upon place and historical moment and the variations in the relative power of the two groups within the power structure of the juridical field The form of the juridical corpus itself notably its degree of formali zation and normalization seems very dependent on the relative strength of theoreticians and practitioners of law professors and judges of exegetes and legal specialists within the power structure of the field at a particular point in time and upon their respective abilities to impose their vision of the law and of its interpretation Variations in the relative power of different groups to impose their particular vision of law might help to explain the systematic differences which separate national traditions particularly the major division between the socalled Romano Germanic and the AngloAmerican traditions In the German and French tradition the law particularly civil law seems to be a real law of the professors tied to the primacy of legal doctrine over procedure and over everything which concerns proof or the execution of judgments This dominance of doctrine reproduces and reinforces the domination of the high magistracy who are closely tied to the law faculties over judges who having passed through the University are more inclined to admit the legitimacy of the magistrates interpretations than those of lawyers whose training has been on the job In contrast in the AngloAmerican tradition the law is jurisprudential case law based almost exclusively on the decisions of courts and the rule of precedent It is only weakly codified Such a legal system gives primacy to procedures which must be fair fair trial Mastery is gained above all in practice or through pedagogical techniques which aim to imitate as much as possible the conditions of professional practice for example the case method used in AngloAmerican law schools Here a legal rule does not claim to be based upon moral theory or rational science but aims merely to provide a solution to a lawsuit placing July 1987 FORCE OF LAW 823 itself deliberately at the level of the debate concerning a specific application The status of such a rule becomes comprehensible when one realizes that in any particular case the significant jurist is the judge who has emerged from within the ranks of the practitioners The relative power of the different kinds of juridical capital within the different traditions is related to the general position of the juridical field within the broader field of power This position through the relative weight granted to the rule of law or to governmental regulation determines the limits of the power of strictly juridical action In France juridical action is today limited by the power that the State and the technocrats produced by the Ecole Nationale dAdministration National School of Administration exercise over large sectors of public and private administration In the United States on the other hand lawyers produced by the major law schools are able to occupy positions outside the limits of the juridical field itself in politics administration finance or industry The greater strength of the juridical field in the United States results in certain systematic differences which have often been mentioned since deTocqueville in the social role of the law and more precisely in the role attributed to legal recourse within the universe of possible actions particularly in the case of campaigns to right particular wrongs The hostility between the holders of different types of juridical capital who are committed to very divergent interests and worldviews in their particular work of interpretation does not preclude thé complementary exercise of their functions In fact such hostility serves as the basis for a subtle form of the division of the labor of symbolic domination in which adversaries objectively complicitous with each other fulfill mutual needs The juridical canon is like a reserve of authority providing the guarantee for individual juridical acts in the same way a central bank guarantees currency This guarantee explains the relatively weak tendency of the legal habitus to assume prophetic poses and postures and its inclination visible particularly among judges to prefer the role of lector or interpreter who takes refuge behind the appearance of a simple application of the law and who when he or she does in fact perform work of judicial creation tends to dissimulate this fact30 An economist no matter how directly involved in practical administration remains connected 30 R DAVID LES GRANDS COURANTS DU DROIT CONTEMPORAIN 12432 5th ed 1975 citing 5 TRAVAUX DE LASSOCIATION HENRI CAPITANT 7476 1949 824 THE HASTINGS LAW JOURNAL Vol 38 to the pure economic theorist who produces mathematical theorems more or less devoid of referents in the real economic world but who is nonetheless distinguished from the pure mathematician by the very recognition that the most impure economist gives to his theories Similarly the most lowly judge or to trace the relation to its final link even the police officer or prison guard is tied to the pure legal theorist and to the specialist in constitutional law by a chain of legitimation that removes his acts from the category of arbitrary violence31 It is indeed difficult not to see the operation of a dynamic functional complementarity in the permanent conflict between competing claims to the monopoly on the legitimate exercise of juridical power Legal scholars and other legal theorists tend to pull the law in the direction of pure theory ordered in an autonomous and selfsufficient system freed of all the uncertainties or lacunae arising in its practical origins through considerations of coherence and justice On the other hand ordinary judges and legal practitioners more concerned with the application of this system in specific instances orient it toward a sort of casuistry of concrete situations Rather than resorting to theoretical treatises of pure law they employ a set of professional tools developed in response to the requirements and the urgency of practiceform books digests dictionaries and now legal databases32 Judges who directly participate in the administration of conflicts and who confront a ceaselessly renewed juridical exigency preside over the adaptation to reality of a system which would risk closing itself into rigid rationalism if it were left to theorists alone Through the more or less extensive freedom of interpretation granted to them in the application of rules judges introduce the changes and innovations which are indispensable for the survival of the system The theorists then must integrate these changes into the system itself Legal scholars through the work of rationalization and formalization to which they expose the body of rules carry out the function of assimilation necessary to ensure the coherence and the permanence of a systematic set of principles and rules Once assimilated these rules and principles can never be reduced to the sometimes contradictory complex and finally 31 One finds a similar chain linking theoreticians and activists in political organizations or at least in those that traditionally claim a basis for their action in a political or economic theory 32 A good example of the process of codification which produces the juridical from the judicial would be the publication of the decisions of the French Cour de Cassation Supreme Court and the selection normalization and distribution which beginning with a body of decisions chosen by the presiding judges for their legal interest produces a body of rationalized and normalized rules See Serverin Une production communautaire de jurisprudence lédition juridique des arrèts 23 ANNALES DE VAUCRESSON 73 1985 July 1987 FORCE OF LAW 825 unmasterable series of successive acts of jurisprudence At the same time they offer to judges whose position and dispositions incline them to rely on their sense of justice alone the means of separating their judgments from the overt arbitrariness of a Kadijustiz33 The role of legal scholars at least in the socalled RomanoGermanic tradition is not to describe existing practices or the operative conditions of the rules which have been deemed appropriate but rather to formalize the principles and rules involved in these practices by developing a systematic body of rules based on rational principles and adapted for general application These scholars thus partake of two modes of thinking the theological in that they seek the revelation of what is just in the text of the law and the logical in that they claim to put deductive method into practice when applying the law to a particular case Their object is to establish a nom ological science a science of law and lawmaking that would state in scientific terms what ought to be As if they sought to unite the two separate meanings of natural law they practice an exegesis aimed at rationalizing positive law by the logical supervision necessary to guarantee the coherence of the juridical corpus and simultaneously to discover unforeseen consequences in the texts and in their interplay thereby filling the socalled gaps in the law We should not underestimate the historical effectiveness of the legal theorists work which by becoming part of its object becomes one of the principal factors in its transformation But neither should we be misled by the exalted representations of juridical activity which are offered by its own theoreticians34 For anyone who does not immediately accept the presuppositions upon which the legal fields operation is based it would be hard to believe that the pure constructions of legal scholars still less the decisions of ordinary judges comply with the deductive logic which 33SeeII M WEBER ECONOMY AND SOCIETY AN OUTLINE OF INTERPRETIVE SOCIOLOGY 97678 G Roth M Wittich eds 1978 In Islam the Kadi is a minor local magistrate Kadi Justice is Webers term for a legal system oriented not at fixed rules of a formally rational law but at the ethical religious political or otherwise expediential postulates of a substantively rational law See M WEBER ON LAW IN ECONOMY AND SOCIETY 213 n48 M Rheinstein ed 1954 Translators note 34 Motulsky for example seeks to demonstrate that jurisprudence is defined by a specific and specifically deductive treatment of givens by a juridical syllogism which allows subsumption of particular cases under a general rule H MOTULSKY PRINCIPES DUNE REALISATION METHODIQUE DU DROIT PRIVE LA THEORIE DES ELEMENTS GENERATEURS DE DROITS SUBJECTIFS 4748 Thesis University of Paris 1948 Like epistemologists who reconstruct ex post facto the actual practice of a researcher and produce an account of scholarly procedure as it ought to be Motulsky reconstructs what might or should be the proper method of production of the law He outlines a phase of research seeking a possible rulea sort of methodical exploration of the universe of rules of lawand distinguishes it from the application phase comprising the application of the rule directly to a particular case 826 THE HASTINGS LAW JOURNAL Vol 38 is the spiritual point of honor of all these professional jurists As the legal realists have demonstrated it is impossible to develop a perfectly rational juridical methodology in reality the application of a rule of law to a particular case is a confrontation of antagonistic rights between which a court must choose The rule drawn from a preceding case can never be purely and simply applied to a new case since there are never two completely identical cases and since the judge must determine if the rule applied in the first case can be extended in such a way as to include the second35 In short far from the judges being simply an executor whose role is to deduce from the law the conclusions directly applicable to an instant case he enjoys a partial autonomy that is no doubt the best measure of his position in the structure of distribution of juridical authoritys specific capital36 His decisions are based on a logic and a system of values very close to those of the texts which he must interpret and truly have the function of inventions While the existence of written rules doubtless tends to diminish the variability of behaviors and while the conduct of juridical actors can be referred and submitted more or less strictly to the requirements of the law while at the same time a proportion of arbitrariness remains in legal decisions and in the totality of the acts which precede and predetermine them such as the decisions of the police concerning an arrest This arbitrariness can be imputed to organizational variables such as the composition of the deciding body or the identities of the parties VI Interpretation causes a historicization of the norm by adapting 35 Cohen Transcendental Nonsense and the Functional Approach 35 COLUM L REV 809 80919 1935 36 The freedom granted to interpretation varies considerably between the Cour de Cassation see supra note 31 which has the power to annul the force of a law for example by proposing a strict interpretation of it and lower courts in which judges academic training and professional experience incline them to abdicate the freedom of interpretation which is theoretically theirs and to limit themselves to applying established interpretations comprising statements of the decisions basis in the law doctrine legal commentary and appellate court decisions Remi Lenoir offers the example of a court in a workingclass district of Paris in which every Friday morning the session is specially given over to identical lawsuits concerning breach of rental and sales contracts brought by a local firm specializing in the sale and rental of household appliances televisions and the like The decisions which are entirely predetermined are rendered with great rapidity the lawyers who are rarely even there do not speak If for any reason a lawyer is presentwhich would prove that even at this level the courts power of interpretation existssuch presence is perceived as a sign of esteem for the judge and the institution which as such is worthy of such respect since the law is not rigidly applied there It is also a sign of the importance attributed to the decision and an indication of the chances that an appeal of the decision might be made July 1987 FORCE OF LAW 827 sources to new circumstances by discovering new possibilities within them and by eliminating what has been superseded or become obsolete Given the extraordinary elasticity of texts which can go as far as complete indeterminacy or ambiguity the hermeneutic operation of the declaratio judgment benefits from considerable freedom It is not rare for the law as a docile adaptable supple instrument to be obliged to the ex post facto rationalization of decisions in which it had no part To varying degrees jurists and judges have at their disposal the power to exploit the polysemy or the ambiguity of legal formulas by appealing to such rhetorical devices as restrictio narrowing a procedure necessary to avoid applying a law which literally understood ought to be applied extensio broadening a procedure which allows application of a law which taken literally ought not to be applied and a whole series of techniques like analogy and the distinction of letter and spirit which tend to maximize the laws elasticity and even its contradictions ambiguities and lacunae37 In reality the interpretation of the law is never simply the solitary act of a judge concerned with providing a legal foundation for a decision which at least in its origin is unconnected to law and reason The judge acts neither as an interpreter meticulously and faithfully applying the rule as Gadamer believes nor as a logician bound by the deductive rigor of his method of realization as Motulsky claims The practical content of the law which emerges in the judgment is the product of a symbolic struggle between professionals possessing unequal technical skills and social influence They thus have unequal ability to marshall the available juridical resources through the exploration and exploitation of possible rules and to use them effectively as symbolic weapons to win their case The juridical effect of the ruleits real meaningcan be discovered in the specific power relation between professionals Assuming that the abstract equity of the contrary positions they represent is the same this power relation might be thought of as corresponding to the power relations between the parties in the case 37 Mario Sbriccoli has proposed a list of the procedures which allowed medieval Italian jurists lawyers magistrates political counsellors etc in the small communes of the time to manipulate the juridical corpus For example the declaratio could be based upon the legal category of the case the substance of the norm the usage and common meaning of the terms their etymologyand each of these elements could be subdivided again The declaratio could also play upon contradictions between the legal category and the text itself taking off from one of them to yield an understanding of the other or vice versa See M SBRICCOLI LlNTERPRETAZZIONE DELLO STATUTO CONTRIBUTO ALLO STUDIO DELLA FUNZIONE DEI GIURISTI NELLETA COMMUNALE 1969 Sbriccoli Politique et interprétation juridiques dans les villes italiennes du Moyenage 17ARCHIVES DE PHILOSOPHIE DU DROIT 99113 1972 828 THE HASTINGS LAW JOURNAL Vol 38 In granting the status of judgment to a legal decision which no doubt owes more to the ethical dispositions of the actors than to the pure norms of the law the rationalization process provides the decision with the symbolic effectiveness possessed by any action which assuming one ignores its arbitrariness is recognized as legitimate Such effectiveness depends at least in part on the fact that unless particular vigilance is exercized the impression of logical necessity suggested by the form tends to contaminate the content as well The rational or rationalizing formalism of rationalist law which has been distinguished by Weber and others from the magic formalism of ritual and of ancient procedures of judgment such as the individual or collective oath participates in the symbolic effectiveness of law at its most rational38 The ritual that is designed to intensify the authority of the act of interpretationfor example formal reading of the texts analysis and proclamation of the judgment which from Pascals time forward has always claimed the attention of analysts only adds to the collective work of sublimation designed to attest that the decision expresses not the will or the worldview of the judge but the will of the law or the legislature voluntas legis or legislatoris The Institution of Monopoly I In reality the institution of a judicial space implies the establishment of a borderline between actors It divides those qualified to participate in the game and those who though they may find themselves in the middle of it are in fact excluded by their inability to accomplish the conversion of mental spaceand particularly of linguistic stancewhich is presumed by entry into this social space The establishment of properly professional competence the technical mastery of a sophisticated body of knowledge that often runs contrary to the simple counsels of common sense entails the disqualification of the nonspecialists sense of fairness and the revocation of their naive understanding of the facts of their view of the case The difference between the vulgar vision of the person who is about to come under the jurisdiction of the court that is to say the client and the professional vision of the expert witness the judge the lawyer and other juridical actors is far from accidental Rather it is essential to a power relation upon which two systems of presuppositions two systems of expressive intentiontwo worldviews 38 SeeP BOURDIEU CE QUE PARLER VEUT DIRE 1982 The effects of formalization are discussed at 2021 the institutional effect at 26184 July 1987 FORCE OF LAW 829 are grounded This difference which is the basis for excluding the non specialist results from the establishment of a system of injunctions through the structure of the field and of the system of principles of vision and of division which are written into its fundamental law into its constitution At the heart of this system is the assumption of a special overall attitude visible particularly in relation to language While we may agree that like every specialized language philosophical language for example legal language consists of a particular use of ordinary language analysts have nonetheless had much difficulty in discovering the true principle of this mixture of dependence and independence39 It is not sufficient to refer to the effect of context or network in Wittgensteins sense which draws words and ordinary language away from their usual meanings The transmutation which affects all linguistic traits is tied to the assumption of a general attitude which is simply the incorporated form of a system of principles of vision and of division These principles constitute the field which is itself characterized by an independence achieved in and through dependence The speechact philosopher Austin was surprised that the question of why we call different things by the same name is never asked one might add that there is a question of why it causes no problem for us to do so If legal language can allow itself to use a word to name something completely different from what that word designates in ordinary usage it is because the two usages are connected by linguistic stances that are as radically exclusive as are perceptive and imaginary conscience according to phenomenology The result is that the homonymie collision or the misunderstanding which might result from the confrontation of two sig nifiers within the same space is extremely improbable The principle of the separation between the two signifiers which we usually attribute to the effect of context is nothing other than a duality of mental spaces dependent upon the different social spaces that sustain them This postural discordance is the structural basis of all the misunderstandings which may occur between the users of learned codes eg physicians judges and simple laypeople on the syntactic as well as on the lexicological level The most significant of such misunderstandings are those that occur when words from ordinary usage have been made to deviate from their usual meaning by learned usage and thus function for the layperson as false friends40 39 Vissert Hooft La philosophie du langage ordinaire et le droit 17 ARCHIVES DE PHILOSOPHIE DU DROIT 26184 1972 40 Such for example is the fact with the French word cause case lawsuit which in common usage has a meaning completely different from its meaning in law 830 THE HASTINGS LAW JOURNAL Vol 38 II The judicial situation operates like a neutral space that neutralizes the stakes in any conflict through the derealization and distancing implicit in the conversion of a direct struggle between parties into a dialogue between mediators As third parties without direct stakes in the conflict which is not the same thing as neutral and ready to comprehend the intense realities of the present by reference to ancient texts and timetried precedents the specialized agents of the law introduce a neutralizing distance without even willing or realizing it In the case of judges at least this is a kind of functional imperative but one which is inscribed at the deepest level of the habitus The ascetic and simultaneously aristocratic attitudes which are the internalized manifestation of the requirement of disengagement are constantly recalled and reinforced by a peer group quick to condemn and censure those who get too openly involved with financial dealings or political questions In short the transformation of irreconcilable conflicts of personal interest into rule bound exchanges of rational arguments between equal individuals is constitutive of the very existence of a specialized body independent of the social groups in conflict This body is responsible for organizing the public representation of social conflicts according to established forms and for finding solutions socially recognized as impartial The solutions are accepted as impartial because they have been defined according to the formal and logically coherent rules of a doctrine perceived as independent of the immediate antagonisms41 The selfrepresentation which describes the court as a separate and bounded space within which conflicts are transformed into specialist dialogues and the trial as an ordered progression toward the truth42 accurately evokes one of the dimensions of the symbolic effect of juridical activity as the free and rational application of a universally and scientifically recognized norm43 As a political compromise between irreconcilable demands presented as the logical synthesis of antagonistic theses a judgment contains within itself the 41 Recourse to the law in many cases implies recognition of a definition of the forms of grievance or of struggle which gives primacy to individual and legal conflicts over other forms of struggle 42 Thus the law is born in the trial which is a regulated dialogue whose method is dialectics M VILLEY PHILOSOPHIE DU DROIT 53 1979 43 Representations of juridical practice conceived as rational decisionmaking or as the deductive application of a rule of law and juridical doctrine itself which tends to conceive the social world as the simple sum of actions by rational equal and free legal subjects predisposed earlier legal scholars persuaded by Kant or by Gadamer to seek in Rational Action Theory the means for modernizing the traditional arguments for the law Again we see the eternal renewal of the same techniques for eternalizing July 1987 FORCE OF LAW 831 whole ambiguity of the juridical field It owes its effectiveness to its simultaneous participation in the logic of two separate fields the political characterized by the opposition between friends or allies and their enemies in which the tendency is to exclude the intervention of any third person as arbiter and the scientific which tends to grant practical primacy to the opposition between truth and error granting effective decisionmaking power to an agreement among specialists44 III The juridical field is a social space organized around the conversion of direct conflict between directly concerned parties into juridically regulated debate between professionals acting by proxy It is also the space in which such debate functions These professionals have in common their knowledge and their acceptance of the rules of the legal game that is the written and unwritten laws of the field itself even those required to achieve victory over the letter of the law thus in Kafkas The Trial the lawyer is as frightening as the judge From Aristotle to Kojève the jurist has most often been defined as a thirdperson mediator In this definition the essential idea is mediation not decision Mediation implies the absence of any direct and immediate adoption by the jurist of the case before him Thus a superior power appears before the litigants one which transcends the confrontation of private worldviews and which is nothing other than the structure and the socially instituted space in which such confrontations are allowed to occur Entry into the juridical field implies the tacit acceptance of the fields fundamental law an essential tautology which requires that within the field conflicts can only be resolved juridicallythat is according to the rules and conventions of the field itself For this reason such entry completely redefines ordinary experience and the whole situation at stake in any litigation As is true of any field the constitution of the juridical field is a principle of constitution of reality itself To join the game to agree to play the game to accept the law for the resolution of the conflict is tacitly to adopt a mode of expression and discussion implying the renunciation of physical violence and of elementary forms of symbolic violence such as insults It is above all to recognize the specific requirements of the juridical construction of the issue Since juridical facts are the products of juridical construction and not vice versa a 44 The philosophical tradition and particularly Aristotle in the Topics refers more or less explicitly to the formation of the social field which is the basis for the constitution of verbal exchange as heuristic discussion whose explicit orientation in contrast to the eristic debate is toward the discovery of propositions valid for a universal audience 832 THE HASTINGS LAW JOURNAL Vol 38 complete retranslation of all of the aspects of the controversy is necessary in order as the Romans said to ponere causam to put the case that is to institute the controversy as a lawsuit as a juridical problem that can become the object of juridically regulated debate Such a retranslation retains as part of the case everything that can be argued from the point of view of legal pertinence and only that only whatever can stand as a fact or as a favorable or unfavorable argument remains IV Among the requirements which are implicit provisions of the contract defining entry into the juridical field three need to be mentioned particularly in light of Austins work First is the need to come to a decisiona decision relatively black or white for the plaintiff or for the defendant guilty or not guilty liable or not liable Second is the requirement that the indictment and the pleadings must conform to one of the recognized procedural categories established in the history of the law These categories despite their number remain very limited and very stereotyped in comparison with the accusations and defenses found in daily life All sorts of conflicts and arguments might be said by reason of their triviality not to have attained the status of the legal to be outside the legal by reason of an exclusively moral appeal Third entry into the juridical field requires reference to and conformity with precedent a requirement which may entail the distortion of ordinary beliefs and expressions45 Stare decisis the rule which decrees the authority of prior legal decisions for any current action stands in relation to juridical thought as Durkheims precept explain the social by the social does to sociological thought it is but another way of asserting the autonomy and specificity of legal reasoning and legal judgments Reference to a body of precedents that are recognized as functioning as a space of possible solutions for the current case legitimizes the decision by making it seem the result of neutral and objective application of specifically juridical procedures though it may in fact be motivated by quite different considerations Precedents are used as tools to justify a certain result as well as serving as the determinants of a particular decision the same precedent 45 According to Austin from this set of requirements constitutive of the juridical worlds particular perspective emerges the fact that legal scholars do not give ordinary expressions their ordinary meaning and that even beyond inventing technical terms or technical senses for ordinary terms they have a special relation to the language which inclines them to unexpected extensions or restrictions of sense See J L AUSTIN PHILOSOPHICAL PAPERS 136 1961 July 1987 FORCE OF LAW 833 understood in different ways can be called upon to justify quite different results Moreover the legal tradition possesses a large diversity of precedents and of interpretations from which one can choose the one most suited to a particular result46 For these reasons the notion of stare decisis should certainly not be conceived of as a kind of rational postulate guaranteeing the consistency and predictability as well as the objectivity of legal decisions by acting as a limit imposed upon the arbitrariness of subjective determinations The predictability and calculability that Weber imputed to rational law doubtless arise more than anything else from the consistency and homogeneity of the legal habitus Shaped through legal studies and the practice of the legal profession on the basis of a kind of common familial experience the prevalent dispositions of the legal habitus operate like categories of perception and judgment that structure the perception and judgment of ordinary conflicts and orient the work which converts them into juridical confrontations47 Even if one does not fully accept its presuppositions the methodology of dispute theory may be useful for providing a description of the collective labor of categorization that tends to transform a perceived or even unperceived grievance into an explicitly attributable harm and thus convert a simple dispute into a lawsuit Nothing is less natural than the need for the law or to put it differently than the impression of an injustice which leads someone to appeal to the services of a professional Clearly the feeling of injustice or the ability to perceive an experience as unjust is not distributed in a uniform way it depends closely upon the position one occupies in the social space The conversion of an unperceived harm into one that is perceived named and specifically attributed presupposes a labor of construction of social reality which falls largely to professionals The discovery of injustice as such depends upon the feeling that one has rights entitlement Hence the specific power of legal professionals consists in revealing rightsand revealing injustices by the same processor on the contrary in vetoing feelings of injustice based on a sense of fairness alone and thereby in discouraging the legal defense of subjective rights In short the power of the professionals is to manipulate legal aspirationsto create them in certain cases to amplify 46 See Kayris Legal Reasoning in THE POLITICS OF LAW 1117 D Kayris ed 1982 47 Certain legal realists who deny that rules have any specific power have gone as far as equating the law with a simple statistical regularity that guarantees the predictability of functioning of legal tribunals 834 THE HASTINGS LAW JOURNAL Vol 38 them or discourage them in others48 The professionals create the need for their own services by redefining problems expressed in ordinary language as legal problems translating them into the language of the law and proposing a prospective evaluation of the chances for success of different strategies There is no doubt that they are guided in their work of constructing disputes by their financial interest but they are also guided by their ethical or political inclinations which form the basis of their social affinities with their clients Above all they are guided by their most specific interests those which are defined by their objective relations with other professionals These interests are manifested for example in the courtroom itself giving rise to explicit or implicit negotiations The functioning of the juridical field tends to impose the effect of closure visible in the tendency judicial insitutions to produce truly specific traditions in categories of perception and judgment which can never be completely translated into those of the nonprofessional Juridical institutions produce their own problems and their own solutions according to a hermetic logic unavailable to laypeople49 The alteration of mental space logically and practically contingent upon change in social space guarantees the mastery of the situation to those who possess legal qualifications They alone can adopt the attitudes which allow the constitution of situations according to the fundamental law of the field Those who tacitly abandon the direction of their conflict themselves by accepting entry into the juridical field giving up for example the resort to force or to an unofficial arbitrator or the direct effort to find an amicable solution are reduced to the status of client The field transforms their prejuridical interests into legal cases and transforms into social capital the professional qualifications that guarantees the mastery of the juridical resources required by the fields own logic VI The constitution of the juridical field is inseparable from the institu 48 One of the most significant powers of lawyers depends upon the work of expansion or amplification of disputes This function which is fundamentally political consists in transforming accepted definitions by transforming the words or labels that identify people or objects most frequently by using the categories of legal language in such a way as to include the relevant person action or relationship in a larger class On this labor of expansion see Mather Yngvesson Language Audience and the Transformation of Disputes 15 LAW SOCY REV 776 198081 49 On all these points see Coates Penrod Social Psychology and the Emergence of Disputes 15 LAW SOCY REV 654 198081 Felstiner Abel Sarat The Emergence and Transformation of Disputes Naming Blaming Claiming 15 LAW SOCY REV 631 198081 Mather Yngvesson supra note 48 July 1987 FORCE OF LAW 835 tion of a professional monopoly over the production and sale of the particular category of products legal services Legal qualifications comprise a specific power that allows control of entry into the juridical field by deciding which conflicts deserve entry and determining the specific form in which they must be clothed to be constituted as properly legal arguments Such qualifications alone can provide the necessary resources to accomplish the work of construction which through selection of the pertinent categories allows reality to be reduced to the useful fiction we term its juridical definition The body of professionals is defined by their monopoly of the tools necessary for legal construction This monopoly is itself an appropriation the size of the profits that the monopoly of the market guarantees to each professional depends upon the degree to which the monopoly can control the production of its members the training and above all the licensing of juridical actors authorized to sell legal services In this way the supply of legal services is regulated The best proof of these assertions can be found in the effects produced both in Europe and in the United States by a crisis in the traditional mode of entry into the legal profession and indeed into the body of physicians architects and other holders of the different varieties of cultural capital In this connection might be mentioned for example efforts to limit the supply of professional services by measures which increase the difficulty of entry into the profession as well as efforts to limit the effects of increased competition to supply professional services such as declining income On the other hand the professionals also make efforts to increase demand through quite varied means One such means is advertising more frequent in the United States than in Europe Another is the work of militant groups whose effect which does not mean whose object is to open new markets for legal services by supporting the rights of disfavored minorities or by encouraging minorities to press for their rights Similar efforts seek more broadly to convince public authorities to contribute directly or indirectly to sustaining what might be termed the juridical demand50 The recent evolution of the juridical field thus allows us to observe directly the process of appropriative constitutionaccompanied by the correlative exclusion of simple laypeoplewhich tends to create demand by bringing within the juridical order an area of social existence that previously had been conceded to prejuridical forms of conflict resolution For example in the case of disputes involving numerous types of labor contracts labor arbitration boards offered arbitration based on a sense of 50 On the effects of the growth in the lawyer population in the United States see Abel Toward a Political Economy of Lawyers 5 Wis L REV 1117 1981 836 THE HASTINGS LAW JOURNAL Vol 38 fairness according to simplified procedures and presided over by individuals with experience in the area of the dispute These disputes have slowly been annexed into the juridical realm51 Through an objective complicity between the besteducated union officials and certain jurists who owing to their generous concern for the interests of the least favored members of society have extended the market for their own services this enclave of juridical independence has been slowly integrated into the professional legal market More and more frequently members of labor arbitration boards are obliged to appeal to the legal system to arrive at and to justify their decisions particularly because complainants and respondents have increasingly tended to resort to the courts and to have recourse to the services of lawyers The multiplication of appeals has also obliged the labor arbitration boards to defer to decisions of the appeals courts As a consequence the professional legal periodicals and the lawyers more and more frequently consulted by management or the unions have profited considerably52 In short a process of circular reinforcement goes into action every step toward the juridicization of a dimension of practice creates new juridical needs and thus new juridical interests among those who possessing the specific qualifications necessary knowledge of labor law in this case find in these needs a new market Through their intervention such practitioners cause an increase in the formalism of legal procedures and thereby contribute to increasing the need for their own services and products to the practical exclu 51 See BonaféSchmitt Pour une sociologie du juge prudhomal 23 ANNALES DE VAUCRESSON27 1985 see also Cam Juges rouges et droit du travail 19 ACTES DE LA RECHERCHE EN SCIENCES SOCIALES 2 1978 P CAM LES PRUDHOMMES JUGESou ARBITRES 1981 52 See Dezalay De la médiation au droit pur pratiques et représentations savantes dans le champ du droit 21 ANNALES DE VAUCRESSON 118 1984 Although the spread of knowledge of labor law among union militants has produced a broad acquaintance with legal rules and procedures in a large number of nonprofessionals this circumstance paradoxically has not had the effect of causing a reappropriation of the law by concerned laypeople to the detriment of professional monopoly Rather the border between laypeople and professionals has moved The professionals have been driven by the logic of competition within the field to increase the technical complexity of their practice in order to keep control of the monopoly of legitimate interpretation and to escape the devaluation associated with a specialization occupying an inferior position in the juridical field See Dhoquois La Vulgarisation du droit du travail Réappropriation par les intéressés ou développement dun nouveau marché pour les professionnels 23 ANNALES DE VAUCRESSON15 1985 There are numerous other manifestations of this tension between the effort to extend the market by conquest of a sector previously left to lay resolution an effort which may be all the more efficacious as in the case of the labor arbitration boards to the extent that it is innocent or not intentionally manipulative and the reinforcement of professional autonomy that is to say the raising of the barrier between professionals and laypeople An example would be the resolution of jobclassification and workrule disputes within private firms July 1987 FORCE OF LAW 837 sion of laypeople Laypeople are obliged to have recourse to the advice of legal professionals who little by little will come to replace the complainants and defendants The latter in their turn become nothing more than a group of individuals who have fallen under the jurisdiction of the courts53 The distance from lay attitudes that defines membership in the field would be impaired by any toopassionate defense of a complainants interests The desire to carefully maintain this distance leads the semi professional mediators who function in the negotiation mechanism increasingly to participate in the process in a technical way in order to more strikingly signify their divorce from those whose interests they are defending They tend therefore to give an increasingly authoritative and neutral character to their arguments but they do so at the risk of undermining the very logic of the process of amicable negotiation to begin with54 The Power of Naming I A trial is a confrontation between individual points of view whose cognitive and evaluative aspects cannot be fully distinguished The confrontation is resolved by the solemnly pronounced judgment of an authority whose power is socially granted Thus the trial represents a paradigmatic staging of the symbolic struggle inherent in the social world a struggle in which differing indeed antagonistic worldviews confront each other Each with its individual authority seeks general recognition and thereby its own selfrealization What is at stake in this struggle is monopoly of the power to impose a universally recognized principle of knowledge of the social worlda principle of legitimized distribution55 In this struggle judicial power through judgments accompa 53 This is a typical example of one of the processes which even if we avoid conceiving of them in the naive language of cooptation tend to suggest the utility of what might be termed negative functionalism These processes urge us to think that any form of opposition to dominant interests fulfills a useful function for the perpetuation of the fundamental order of the social field that heresy tends to reinforce the very order which while it combats it simultaneously welcomes and absorbs it and emerges even stronger from the confrontation 54 See Dezalay Des affaires disciplinaires au droit disciplinaire la juridictionalisation des affaires disçiplinaires comme enjeu social et professionnel 23 ANNALES DE VAUCRESSON 51 1985 55 Nomos the Greek word for law or custom derives from nemo meaning to separate divide distribute In archaic times the rex king held the power to set boundaries regère fines to fix the rules to determine in the precise sense what is right droit See 2 E BENVENISTE LE VOCABULAIRE DES INSTITUTIONS INDOEUROPEENNES15 1969 838 THE HASTINGS LAW JOURNAL Vol 38 nied by penalties that can include acts of physical constraint such as the taking of life liberty or property demonstrates the special point of view transcending individual perspectivesthe sovereign vision of the State For the State alone holds the monopoly of legitimized symbolic violence The insult uttered by a private person as private speech engages only the speaker and hardly possesses symbolic efficacy In contrast the judgment of a court which decides conflicts or negotiations concerning persons or things by publicly proclaiming the truth about them belongs in the final analysis to the class of acts of naming or of instituting The judgment represents the quintessential form of authorized public official speech which is spoken in the name of and to everyone These performative utterances substantiveas opposed to proceduraldecisions publicly formulated by authorized agents acting on behalf of the collectivity are magical acts which succeed because they have the power to make themselves universally recognized56 They thus succeed in creating a situation in which no one can refuse or ignore the point of view the vision which they impose Law consecrates the established order by consecrating the vision of that order which is held by the State It grants to its actors a secure identity a status and above all a body of powers or competences that are socially recognized and therefore productive It does this through the distribution of the right to use those powers through degrees eg academic professional and certificates of professional specialization of illness of disability It also ratifies all processes related to the acquisition augmentation transfer or withdrawal of those powers The judgments by which law distributes differing amounts of different kinds of capital to the different actors or institutions in society conclude or at least limit struggle exchange or negotiation concerning the qualities of individuals or groups concerning the membership of individuals within groups concerning the correct attribution of names whether proper or common and titles concerning union or separationin short concerning the entire practical activity of worldmaking marriages divorces substitutions associations dissolutions which constitutes social units Law is the quintessential form of the symbolic power of naming that creates the things named and creates social groups in particular It confers upon the reality which arises from its classificatory operations the maximum permanence that any social entity has the power to confer upon another the permanence which we attribute to objects 56 These judgments are model acts of categorization katègoresthai in Greek meant to publicly accuse July 1987 FORCE OF LAW 839 The law is the quintessential form of active discourse able by its own operation to produce its effects It would not be excessive to say that it creates the social world but only if we remember that it is this world which first creates the law It is important to ascertain the social conditionsand the limitsof the laws quasimagical power if we are not to fall into a radical nominalism suggested in certain of Michel Fou caults analyses and posit that we produce the categories according to which we produce the social world and that these categories produce this world In reality the schémas of perception and judgment which are at the origin of our construction of the social world are produced by a collective historical labor yet are based on the structures of this world themselves These are structured structures historically constituted Our thought categories contribute to the production of the world but only within the limits of their correspondence with preexisting structures Symbolic acts of naming achieve their power of creative utterance to the extent and only to the extent that they propose principles of vision and division objectively adapted to the preexisting divisions of which they are the products By consecrating what is uttered such utterance carries its object to that fully attained higher existence which characterizes constituted institutions In other words the specific symbolic effect of the representations which are produced according to schémas adapted to the structures of the world which produce them is to confirm the established order A correct representation ratifies and sanctifies the doxic view of the divisions of the social world by representing this view with the perceived objectivity of orthodoxy Such an act is a veritable act of creation which by proclaiming orthodoxy in the name of and to everyone confers upon it the practical universality of that which is official II Symbolic power in its prophetic heretical antiinstitutional subversive mode must also be realistically adapted to the objective structures of the social world In science art or politics the creative power of representation never manifests itself more clearly than in periods of revolutionary crisis Nonetheless the will to transform the world by transforming the words for naming it by producing new categories of perception and judgment and by dictating a new vision of social divisions and distributions can only succeed if the resulting prophecies or creative evocations are also at least in part wellfounded previsions anticipatory descriptions These visions only call forth what they proclaimwhether new practices new mores or especially new social groupingsbecause they announce what is in the process of developing 840 THE HASTINGS LAW JOURNAL Vol 38 They are not so much the midwives as the recording secretaries of history By granting to historical realities or virtualities the recognition that is implicit in prophetic proclamation they offer them the real possibility of achieving full realityfully recognized official existencethrough the effect of legitimation indeed of consecration implied by publishing and officializing them Thus only a realist nominalism or one based in reality allows us to account for the magical effect of naming as the term has been used here and thus for the symbolic imposition of power which only succeeds because it is fully based in reality Juridical ratification is the canonical form of all this social magic It can function effectively only to the extent that the symbolic power of legitimation or more accurately of naturalization since what is natural need not even ask the question of its own legitimacy reproduces and heightens the immanent historical power which the authority and the authorization of naming reinforces or liberates Such analysis may seem quite distant from the reality of juridical practice But it is indispensable for accurately understanding the principle of symbolic power While the responsibility of sociology is to remind us that as Montesquieu put it society cannot be transformed by decree our awareness of the social conditions underlying the power of juridical acts should not lead us to ignore or to deny that which creates the specific efficacy of rules of regulations and of the law itself In explaining practices a healthy reaction against what might be termed abstract juridicism should lead us to restore the constitutive dispositions of the habitus to their proper place But this does not imply that one ought to forget the specific effect of an explicitly promulgated regulation especially when as is the case with legal regulations it is accompanied by sanctions There is no doubt that the law possesses a specific efficacy particularly attributable to the work of codification of formulation and formalization of neutralization and systematization which all professionals at symbolic work produce according to the laws of their own universe Nevertheless this efficacy defined by its opposition both to pure and simple impotence and to effectiveness based only on naked force is exercised only to the extent that the law is socially recognized and meets with agreement even if only tacit and partial because it corresponds at least apparently to real needs and interests57 57 The relation between the habitus and the rule or doctrine is the same in the case of religion where it is just as mistaken to impute practices to the effect of liturgy or dogma based on an overestimation of the efficacy of religious action which is the equivalent of juridicism as to neglect that effect by imputing such practices entirely to personal inclinations neglecting thereby the specific efficacy of the body of clerics July 1987 FORCE OF LAW 841 The Power of Form Like the practice of religion juridical practice defines itself in part through the relation between the juridical field and demand on the part of laypeople The juridical field is the the basis of the supply of legal services arising from professional competition demand is always partially conditioned by the effect of this supply There is constant tension between the available juridical norms which appear universal at least in their form and the necessarily diverse even conflicting and contradictory social demand This tension is objectively present in juridical practices themselves either positively or potentially in the form of avant garde ethical or political transgression or innovation In analyzing the legitimacy granted in practice to the law and its agents we must avoid two misunderstandings First legitimacy cannot be understood simply as the effect of general recognition granted by those who are subject to it to a jurisdiction which the professional ideology would have us believe is the expression of universal and eternal values transcending any individual interest On the other hand such legitimacy cannot be comprehended as the effect of consent that is automatically insured by nothing more than social mores or power relations or more accurately the interest of dominant groups58 We can no longer ask whether power comes from above or from below Nor can we ask if the development and the transformation of the law are products of an evolution of mores toward rules of collective practices toward juridical codification or inversely of juridical forms and formulations toward the practices which they inform Rather we must take account of the totality of objective relations between the juridical field and the field of power and through it the whole social field The means the ends and the specific effects particular to juridical action are defined within this universe of relations II To take account of what law is in its structure and in its social 58 The tendency to understand complex systems of relation in a unilateral way similar to the tendency of linguists who seek the principle of linguistic change solely in one or another sector of social space leads some in the name of sociology to simply invert the old idealist model of pure juridical creation Depending upon a series of struggles within the scholarly body this model has been simultaneously or successively identified with the actions of legislators or of legal scholars or in the case of the partisans of public or civil law with the decisions of courts The center of gravity of the development of the law in our period as at any time can be found neither in legislation nor in doctrine nor in jurisprudence but in society itself J CARBONNIERFLEXIBLE DROITTEXTES POUR UNE SOCIOLOGIE DU DROIT SANS RIGUEUR 21 5th ed 1983 842 THE HASTINGS LAW JOURNAL Vol 38 effects it is necessary to go beyond the state of present or potential social demand and the social conditions of possibility which such demand offers to juridical creation We need to recover the profound logic of juridical work in its most specific locus in the activity of formalization and in the interests of the formalizing agents as they are defined in the competition within the juridical field and in the relationship between this field and the larger field of power59 There is no doubt that the practice of those responsible for producing or applying the law owes a great deal to the similarities which link the holders of this quintessential form of symbolic power to the holders of worldly power in general whether political or economic60 This is so despite the jurisdictional conflicts which may set such holders of power in opposition to each other The closeness of interests and above all the parallelism of habitus arising from similar family and educational backgrounds fosters kindred worldviews Consequently the choices which those in the legal realm must constantly make between differing or antagonistic interests values and worldviews are unlikely to disadvantage the dominant forces For the ethos of legal practitioners which is at the origin of these choices and the immanent logic of the legal texts which are called upon to justify as well as to determine them are strongly in harmony with the interests values and worldviews of these dominant forces The membership of judges in the dominant class is universally noted In the small communities of medieval Italy possession of that particularly rare form of cultural capital that we term juridical capital was sufficient to guarantee a position of power61 Similarly in France under the Old Regime the noblesse de robe those holding noble titles by virtue of their positions as magistrates although they had less prestige than the military nobility were frequently members of the aristocracy by birth Sauvageots investigation of the social origins of magistrates who entered practice in France before 1959 shows that a very high proportion came from families in the legal profession and more 59 Max Weber considered the formal logical properties of rational law to be the real foundation of its efficacy based particularly upon its capacity for generalization seen as the source of its universal applicability He associated the development of a body of legal specialists and of juridical scholarship adapted to making the law an abstract and logically coherent discourse with the development of bureaucracies and of the impersonal social relations which they foster 60 These similarities have only grown stronger in France with the creation of the Ecole Nationale dAdministration which guarantees that high government functionaries and a substantial proportion of the directors of public and private companies receive at least a minimum level of legal training 61 See Sbriccoli supra note 37 July 1987 FORCE OF LAW 843 broadly from the bourgeoisie JeanPierre Mounier has demonstrated that at least until recently the wealth guaranteed by a privileged class background was a condition of the economic independence and even of the ethos of austerity which constitute what might be called the necessary attributes of this profession dedicated to the service of the State When combined with the specific effects of professional training such a background helps to explain that the magistracys declared neutrality and its haughty independence from politics by no means exclude a commitment to the established order62 The effects of such unanimous tacit complicity become most visible in the course of an economic and social crisis within the professional body itself Such a crisis arises for example in an alteration of the mode by which the holders of dominant positions are selected At such a moment professional complicity of the sort just discussed collapses Certain newcomers to the magistracy by virtue of their position or personal attitudes are not inclined to accept the traditional presuppositions defining the magistracy The struggles they undertake bring to light a largely repressed element at the heart of the groups foundation the nonaggression pact that links the magistracy to dominant power To this point the professional body is held together in and by a universally accepted hierarchy and consensus concerning its role But increasing internal differentiation leads to the bodys becoming a locus of struggle This causes some members to repudiate the professional pact and to openly attack those who continue to consider it the inviolable norm of their professional activity63 III The power of the law is special It extends beyond the circle of those who are already believers by virtue of the practical affinity uniting them with the interests and values fundamental to legal texts and to the 62 J P MOUNIER LA DEFINITION JUDICIAIRE DE LA POLITIQUE Doctoral Thesis University of Paris I 1975 A good index of the values of the magistracy as a body in France can be seen in the fact that magistrates despite their reluctance to intervene in political affairs were of all the legal professionals and particularly in comparison with lawyers the group which most frequently signed petitions against the liberalization of the law concerning abortion 63 The results of the most recent professional election in France held by mail ballot between May 12 and 21 1986 brought to light a marked political polarization within the body of magistrates Until the formation of the Syndicat de la Magistrature in 1968 all unionized magistrates were members of a single organization the Union Fédérale des Magistrats which later became the Union Syndicale des Magistrates In the recent election the moderate USM considerably declined in strength while the Syndicat de la Magistrature leftist in tendency gained and the new Association Professionnelle des Magistrats rightist made its existence felt by winning more than 10 of the vote 844 THE HASTINGS LAW JOURNAL Vol 38 ethical and political inclinations of those who have the responsibility of applying them The universalizing claims of legal doctrine and procedure which are manifested in the work of juridical formalization contribute to the establishment of their practical universality The specific property of symbolic power is that it can be exercised only through the complicity of those who are dominated by it This complicity is all the more certain because it is unconscious on the part of those who undergo its effectsor perhaps we should say it is more subtly extorted from them As the quintessential form of legitimized discourse the law can exercise its specific power only to the extent that it attains recognition that is to the extent that the element of arbitrariness at the heart of its functioning which may vary from case to case remains unrecognized The tacit grant of faith in the juridical order must be ceaselessly reproduced Thus one of the functions of the specifically juridical labor of formalizing and systematizing ethical representations and practices is to contribute to binding laypeople to the fundamental principle of the jurists professional ideologybelief in the neutrality and autonomy of the law and of jurists themselves64 The emergence of law Jacques Ellul writes occurs at the point at which the imperative formulated by one of the groups composing a whole society takes on the status of a universal value by the fact of its juridical formulation65 It is indeed necessary to relate universalization and the creation of forms and formulas The rule of law presupposes the coming together of commitment to common values which are marked at the level of custom by the presence of spontaneous and collective sanctions such as moral disapproval and of the existence of explicit rules and sanctions and normalized procedures This latter factor which cannot be separated from the emergence of writing plays a decisive role Writing adds the possibility of universalizing commentary which discovers universal rules and above all principles and writing adds the possibility of transmission Such transmission must be objectivedepending for its success upon a methodical apprenticeship It must also be generalizedable to reach beyond geographical territorial and temporal generational frontiers66 Although 64 Alain Bancaud and Yves Dezalay have demonstrated that even the most heretical of dissident legal scholars in France those who associate themselves with sociological or Marxist methodologies to advance the rights of specialists working in the most disadvantaged areas of the law such as social welfare law droit social nonetheless maintain their commitment to the science of jurisprudence See Bancaud Dezalay Léconomie du droit Impérialisme des économistes et résurgence dun juridisme 19 paper at the Colloque sur le Modèle Economique dans les Sciences Conférence on Economie Models in the Sciences Dec 1980 65 Ellul Le problème de lémergence du droit 1 ANNALES DE BORDEAUX 6 15 1976 66 See Ellul Deux problèmes préalables 2 ANNALES DE BORDEAUX 6170 1978 July 1987 FORCE OF LAW 845 oral tradition makes disciplined technical refinement impossible in that it is tied to the experience of a unique place and social setting written law fosters the process by which the text becomes autonomous It is commented upon it interposes itself between the commentaries and reality At that point what the inhabitants of the legal world call jurisprudence becomes possible that is a particular form of scholarly knowledge possessing its own norms and logic and able to produce all the outward signs of rational coherence of that formal rationality which Weber always carefully distinguished from substantive rationality which rather concerns the objects of the practices thus formally rationalized IV Juridical labor has multiple effects Its work of formalizing and systematizing removes norms from the contingency of a particular situation by establishing an exemplary judgment an appellate decision for example in a form designed to become a model for later decisions This form simultaneously authorizes and fosters the logic of precedent upon which specifically juridical thought and action are based It ties the present continuously to the past It provides the guarantee that in the absence of a revolution which would upset the very foundation of the juridical order the future will resemble what has gone before that necessary transformations and adaptations will be conceived and expressed in a language that conforms to the past Thus contained within a logic of conservation juridical labor serves as one of the major foundations of the maintenance of symbolic order through another of its functional traits67 That is through the systematization and rationalization which it imposes on juridical decisions and on the rules appealed to for grounding or justifying those decisions it gives the seal of universalitythe quintessential carrier of symbolic effectivenessto a view of the social world which as we have seen exhibits no striking divergences from the point of view of dominant power From this position juridical labor has the capacity to lead to what might be termed practical universalization that is to the generalization in practice of a mode of action and expression previously restricted to one region of the geographical or social space As Jacques Ellul indicates Laws at first foreign and applied from without by experience come slowly to be recognized as useful and over time become a part of the collectivitys own patrimony The collectivity has progressively been 67 Thus in France the relation between appointment in a law faculty and conservative political orientation which can be empirically demonstrated is not accidental See P BOURDIEUHOMO ACADEMICUS 9396 1984 846 THE HASTINGS LAW JOURNAL Vol 38 formed by law laws only become the law at the point when society agrees to be formed by them Even a set of rules applied under constraint for a time does not leave society as it was A certain number of legal or moral habits have been created68 It makes sense that in a complex society the universalization effect is one of the mechanisms and no doubt one of the most powerful producing symbolic domination or if one prefers to call it that the imposition of legitimacy in a social order When the legal norm makes the practical principles of the symbolically dominant style of living official in a formally coherent set of official and by definition social rules it tends authentically to inform the behavior of all social actors beyond any differences in status and lifestyle The universalization effect which one could also term the normalization effect functions to heighten the effect of social authority already exercized by the legitimate culture and by those who control it It thereby complements the practical power of legal constraint69 The juridical institution promotes an ontological glorification It does this by transmuting regularity that which is done regularly into rule that which must be done factual normalcy into legal normalcy simple familial fides trust which derives from a whole effort to sustain recognition and feeling into family law sustained by a whole arsenal of institutions and constraints In this way the juridical institution contrib 68 Ellul supra note 65 69 Among the specifically symbolic effects of the law particular attention must be paid to the effect of what might be termed officialization the public recognition of normality which makes it possible to speak about think about and admit conduct which has previously been tabooed For example such is the case with laws concerning homosexuality Similarly we need to consider the effect of symbolic imposition that can arise from an explicitly promulgated rule and from the possibilities it designates through broadening the space of possible conduct or even more simply in giving people ideas Thus in their long resistance to the French Civil Code peasants faithful to the tradition of primogeniture acquired the knowledge of the legal procedures made available to them by the juridical imagination although these were violently rejected by the courts A number of these measures often recorded in notarized agreements which historians of law frequently rely upon in reconstitutions of custom are completely devoid of realityfor example provisions refunding dowries in case of divorce at a time when divorce was in fact impossible Nonetheless the juridical supply side has significant real effects upon representation In the realm just discussed as elsewhere for example in labor law the representations that constitute what might be termed the law as it is lived owe a great deal to the more or less distorted effect of codified law The realm of possibilities which the latter brings into existence through the very labor which must be expended to neutralize them doubtless tends to prepare the minds of citizens for the apparently sudden changes that will occur when the conditions allowing for the realization of these theoretical possibilities come into existence We might posit that this is a general effect of juridical imagination which foreseeing every possible case of transgression of rules thanks to a kind of methodical pessimism actually contributes to bringing such transgressions into existence in a proportion of the social world July 1987 FORCE OF LAW 847 utes universally to the imposition of a representation of normalcy according to which different practices tend to appear deviant anomalous indeed abnormal and pathological particularly when medical institutions intervene to sustain the legal ones Family law has thus ratified and validated as universal norms family practices that developed slowly propelled by the efforts of the dominant classs moral avant garde within a set of social institutions selected to regulate the essential relations governing family unity particularly the relations between the generations As Remi Lenoir has demonstrated family law has contributed considerably to accelerating the generalization of a model of the family which in certain parts of the social and geographic world particularly among peasants and artisans collides with economic and social obstacles linked to small enterprises and their reproduction70 The tendency to universalize ones mode of living broadly experienced and recognized as exemplary is one of the effects of the ethnocentrism of dominant groups It is also the basis for belief in the universality of the law Such a tendency is equally at the heart of the ideology that tends to see the law as an instrument for the transformation of social relations The analyses offered earlier in this Essay allow us to understand that this ideology finds an apparent basis in reality For the behavioral principles or ethical grievances that jurists formalize and generalize do not arise just anywhere within the social world In the same way that the force truly responsible for the application of the law is not any random individual judge but the entire set of the laws agents often in competition with each other who accomplish the identification and the branding of the offender and of the offense so the authentic writer of the law is not the legislator but the entire set of social agents Conditioned by the specific interests and constraints associated with their positions within different social fields the juridical but also the religious political these agents formulate private desires or grievances transform them into social problems and organize the presentations newspaper articles books organizational or party platforms and the pressures demonstrations petitions delegations designed to push them forward Juridical labor thus sanctions a whole effort of construction and formulation of representations coupling it with the effects of generalization and universalization that are specific to the techniques of the law and with the means of coercion which these techniques are able to bring to bear The legal supply side the relatively autonomous creative capacity of the law which the existence of its specialized field of production 70 R LENOIRLA SECURITIE SOCIALE ET LEVOLUTION DES FORMES DE CODIFICATION DES STRUCTURES FAMILIALES Thesis Université de Paris 1985 848THE HASTINGS LAW JOURNALVol 38 makes possible thus results in a specific effect This effect sanctions the effort of dominant or rising groups to impose an official representation of the social world which sustains their own world view and favors their interests particularly in socially stressful or revolutionary situations71 It is surprising that analysis of the relations between the normal and the pathological take so little account of the specific effect of the law The law an intrinsically powerful discourse coupled with the physical means to impose compliance on others can be seen as a quintessential instrument of normalization As such given time it passes from the status of orthodoxy proper belief explicitly defining what ought to happen to the status of doxa the immediate agreement elicited by that which is selfevident and normal Indeed doxa is a normalcy in which realization of the norm is so complete that the norm itself as coercion simply ceases to exist as such One cannot take complete account of this effect of naturalization without extending the analysis to include the most specific effect of juridical formalization the vis formae the power of form of which the ancients spoke The shaping of practices through juridical formalization can succeed only to the extent that legal organization gives explicit form to a tendency already immanent within those practices The rules which 71 My analysis of the custom books and the records of communal deliberations for a number of communities in the Beam region of France Arudy Bescat Denguin Lacom mande Lasseube makes it possible to see how universal norms for collective decisionmaking such as majority votingtook over during the French Revolution replacing the old custom that required the unanimity of heads of households This change in procedures depended upon the authority conferred on the new norms by their very objectification As such they were well adapted for dissipating the old shadowy it goes without saying as enlightenment dissipates darkness One of the essential characteristics of customs in Kabylie as in Béarn and elsewhere is that the most fundamental principles are never spoken and that analysis must detect these unwritten laws via the enumeration of penalties which are associated with their practical transgression It seems clear that by an effect of allodoxia variation or reversal in opinion explicit written codified rules possessing the appearance of general assent by virtue of their general applicability slowly defeated resistance because they seemed the proper formulation though more concise and systematic of the principles which in practice had regulated conduct This occurred despite the fact that in practice the new principles negated these same earlier customs A principle like unanimity in decisionmaking tended to exclude institutional recognition of the possibility of any division especially a continuing one into hostile camps and more profoundly the possibility of delegating decisions to a body of selected representatives It is moreover striking that the institution of municipal councils was accompanied by the disappearance of participation on the part of the very people concerned with the decisions to be made and that throughout the nineteenth century the role of the representatives themselves was limited in practice to ratifying the proposals of nonelected Prefectural authorities July 1987 FORCE OF LAW 849 succeed are those which as we say regularize factual situations consonant with them Even so however the movement from statistical regularity to legal rule represents a true social modification By eliminating exceptions and the vagueness of uncertain groupings and by imposing clear discontinuities and strict borders in the continuum of statistical limits juridical formalization introduces into social relations a clarity and predictibility It thus institutes a rationality that can never be fully guaranteed by the practical principles of habitus or the sanctions of custom by which these unformulated principles are directly applied to particular cases Without accepting the notion of intrinsic force which philosophers have sometimes attributed to a true idea we must nonetheless grant social reality to the symbolic power that formally rational law to use Webers language owes to the specific effect of formalization itself By ordaining the patterns that govern behavior in practice prior to any legal discourse through the objectivity of a written rule or of an explicitly expressed regulation formalization establishes the operation of what might be termed a homologation effect12 The objectification of the practical code in the form of an explicit code permits different speakers to associate the same meaning with the same perceived sound and the same sound with the same conceived meaning Similarly the explicit statement of principles makes possible explicit verification of consensus concerning the principles of consensus or disagreement themselves Although this process cannot be completely identified with axiomatization because the law contains zones of obscurity which are the very basis for legal commentary homologation makes possible a form of rationalization comprehended in Webers terms as predictability and calculability Unlike two players who for lack of agreement upon the rules of their game are condemned to accuse each other of cheating every time their comprehension of the game diverges the actors involved in an undertaking governed by specific rules know that they may count on a coherent and inescapable norm They therefore may calculate and predict both the consequences of adherence to the rule and the effects of transgressing it But the powers of homologation are only fully available to those who have equal status in the regulated universe of juridical formalism The highly rationalized struggles which homologation sanctions are reserved to those who possess a high degree of juridical competence joined with the specific competence of professionals in legal combat experienced in the use of forms and formulas as weapons As for others 72 From homologein meaning to say the same thing or speak the same language 850 THE HASTINGS LAW JOURNAL Vol 38 they are condemned to submit to the power of form that is to the symbolic violence perpetrated by those who thanks to their knowledge of formalization and proper judicial manners are able to put the law on their side When they need to these are the people who can put the most skillful exercise of formal rigor summum jus to the service of the least innocent ends summa injuria The Effects of Homology I In order to take full account of the symbolic power of the law it is necessary to consider the effects of the adaptation of legal supply to legal demand This adaptation is less the result of conscious transactions than of structural mechanisms such as the homology between different classes of producers and sellers of legal services and different classes of clients Those who occupy inferior positions in the field as for example in social welfare law tend to work with a clientele composed of social inferiors who thereby increase the inferiority of these positions Thus their subversive efforts have less chance of overturning the power relations within the field than they do of contributing to the adaptation of the juridical corpus and thereby to the perpetuation of the structure of the field itself Given the determinant role it plays in social reproduction the juridical field has a smaller degree of autonomy than other fields like the artistic or literary or even the scientific fields that also contribute to the maintenance of the symbolic order and thereby to that of the social order itself External changes are more directly reflected in the juridical field and internal conflicts within the field are more directly decided by external forces Thus the hierarchy in the division of juridical labor visible in the hierarchy of professional specializations varies over time if only to a limited extent as the unchanging prestige of civil law bears witness This variation depends notably upon variations in power relations within the social field It is as if the positions of different specialists in the organization of power within the juridical field were determined by the place occupied in the political field by the group whose interests are most closely tied to the corresponding legal realm For example as the power of dominated groups increases in the social field and the power of their representatives parties or unions grows in the political field differentiation within the juridical field tends to increase This was illustrated in the second half of the nineteenth century by the development of commercial and labor law and more generally of social welfare law Struggles within the juridical field for example between the primacy July 1987 FORCE OF LAW 851 of private law and public law73 owe their ambiguity to the fact that in the name of private property and freedom of contract the privatists defend the autonomy of the law and of lawyers against any intrusion by politics or social or economic pressure groups and particularly against the growth of administrative law and any penal social commercial or labor law reform These struggles often have welldefined stakes within the juridical or academic field such as the control of curricula the creation of new topic divisions in learned periodicals or of new academic subdisciplines and new professorships teaching them Such struggles thus bear on the issue of control within the professional body and control over its reproduction By extension they concern all aspects of legal practice But such struggles are both overdetermined and ambiguous in that the privatist partisans of autonomy and of the law as abstract and transcendent entity find themselves defenders of an orthodoxy For the cult of the text the primacy of doctrine and of exegesis of theory and of the past are coupled with a refusal to recognize the slightest creative capacity in jurisprudence and thus with a virtual denial of social and economic reality and a repudiation of any scholarly grasp of that reality II We can therefore understand that according to the logic observable in all social fields members of dominated groups can find the bases of a critical argument for conceiving of the law as a science possessing its own methodology and rooted in historical reality only outside the juridical field in the scientific or political fields One source for such an argument is an analysis of jurisprudence itself In a division mirrored universally in theological philosophical or literary debates concerning the interpretation of sacred texts the partisans of change place themselves on the side of science of the historicization of meaning and of attention to jurisprudence that is to new problems and to the new forms of law which these problems have produced such as commercial labor and penal law Sociology which the guardians of public order tend to see as indivisible from socialism itself is conceived as the pernicious reconciler of science and social reality against which the pure exegeses of abstract theory becomes the best protection In this case paradoxically the autonomization of the legal field implies not the increasing withdrawal of a body devoted exclusively to the reading of sacred texts but rather a growing intensity in the confronta 73 In the civil law tradition private law is conceived as regulating conflicts between individual citizens and enforcing private rights public law involves relations between the state or other public entities and citizens Translators note 852 THE HASTINGS LAW JOURNAL Vol 38 tion of texts and procedures with the social realities that they are supposed to express or regulate The increasing differentiation and competition within the juridical field coupled with the increasing influence of dominated groups within it which parallels the increasing strength of their representatives in the social field itself helps to foster this return to social realities It is not by chance that the attitudes concerning exegesis and jurisprudence concerning the sanctity of doctrine on the one hand and its necessary adjustment to concrete realities on the other seem to correspond rather closely to the positions that their holders occupy within the field On one side of the debate today we find the adherents of private law and particularly of civil law which the neo liberal tradition basing itself on the economy has recently resurrected On the other we find disciplines such as public law or labor law which formed in opposition to civil law These disciplines are based upon the extension of bureaucracy and the strengthening of movements for political rights or social welfare law droit social defined by its defenders as the science which with the help of sociology allows adaptation of the law to social evolution III The fact that juridical production like other forms of cultural production occurs within a field is the basis of an ideological effect of miscognition that escapes the usual forms of analysis These analyses conceive of ideologies as directly referrable to collective functions even to individual intentions But the effects that are created within social fields are neither the purely arithmetical sum of random actions nor the integrated result of a concerted plan They are produced by competition occurring within a social space This space influences the general tendencies of the competition In turn these tendencies are tied to the assumptions which are written into the very structure of the game whose fundamental law they constitutein the case considered here for example the relationship between the juridical field and the field of power Like the function of reproducing the juridical field with its internal divisions and hierarchies and the principle of vision and division which is at its base the function of maintaining the symbolic order which the juridical field helps to implement is the result of innumerable actions which do not intend to implement that function and which may even be inspired by contrary objectives Thus for example the subversive efforts of those in the juridical avant garde in the end will contribute to the adaptation of the law and the juridical field to new states of social relations and thereby insure the legitimation of the established order of such relations July 1987 FORCE OF LAW 853 As demonstrated by such cases in which the results produced simply invert what had been consciously intended it is the structure of the game and not a simple effect of mechanical addition which produces transcendence of the objective and collective effect of accumulated actions Pierre Bourdieu sociólogo francês é reconhecido por sua influente obra que aborda de forma crítica a estrutura da sociedade e as dinâmicas de poder presentes nas relações sociais Um dos conceitos centrais em sua teoria é a noção de ilusão que desempenha um papel fundamental na compreensão da realidade social Lecionou em universidades como a de Argel e de Lille e quando voltou a Paris foi nomeado como diretor de estudos na École Pratique des Hautes Études e após diretor do Centre de Sociologie Européene período no qual publicou grandes obras na área da educação arte cultura e metodologia Grenfell 2018 O sociólogo argumenta que a sociedade opera por meio de códigos estruturas e mecanismos que conferem uma aparência de naturalidade e legitimidade às relações de poder existentes Essa ilusão da realidade social é mantida pela participação dos próprios indivíduos que tendem a aceitar e reproduzir as regras do jogo social sem questionálas Robbins 2018 explica que no entendimento do autor tudo aquilo que percebemos sobre o mundo é estabelecido como um resultado de atos de percepção individuais Todavia essas percepções possuem princípios que são pré concebidos e se encontram em evolução com base na lógica de diferenciação observada no mundo social Isto é tais princípios são valores que servem o status quo eou formas sociais emergentes Essa relação estrutural fenomenológica é um produto de condições estruturais do ambiente que oferecem regularidades objetivas para guiar o pensamento e a ação modos de fazer coisas Robbins 2018 p 69 A noção de ilusão em Bourdieu não se refere apenas a uma falsa consciência mas também à forma como as estruturas de poder são internalizadas e perpetuadas pelos próprios atores sociais Essa internalização da ilusão contribui para a reprodução das desigualdades e para a manutenção do status quoBourdieu 2001 A ilusão biográfica título do artigo de Pierre Bourdieu publicado em 1986 quando as histórias de vida ressurgiam nas Ciências Humanas e Sociais tornouse uma expressão emblemática da tensão entre tendências opostas a que lança um olhar de suspeição sobre o biográfico e a que defende sua legitimidade em pesquisa Passegg 2014 Para Bourdieu a superação da ilusão demanda uma postura crítica e reflexiva por parte dos indivíduos que devem questionar as estruturas de poder e buscar compreender as dinâmicas que moldam a realidade social Somente por meio desse processo é possível romper com a ilusão e promover transformações efetivas na sociedade A noção de ilusão representa não apenas uma análise das formas como o poder se manifesta e se perpetua mas também um convite à ação e à conscientização por parte dos indivíduos Ao compreender a natureza ilusória da realidade social os indivíduos podem se tornar agentes de mudança e contribuir para a construção de uma sociedade mais justa e igualitária Passegg 2014 Pierre Bourdieu renomado sociólogo francês desenvolveu uma abordagem teórica que enfatiza o papel do poder na reprodução das estruturas sociais Para Bourdieu a ilusão é um elemento fundamental na manutenção do status quo pois permite que as desigualdades sejam naturalizadas e perpetuadas sem questionamento por parte dos dominados A ilusão nesse sentido não se refere apenas a falsas percepções individuais mas sim a um conjunto de mecanismos sociais que moldam a visão de mundo das pessoas e as mantêm submissas às estruturas de poder O processo de codificação desempenha um papel crucial nessa dinâmica A codificação referese à maneira como determinados valores crenças e práticas são transformados em sistemas simbólicos reconhecidos e legitimados socialmente Esses sistemas simbólicos como a linguagem a arte a educação e a religião funcionam como instrumentos de poder permitindo que os grupos dominantes mantenham sua posição privilegiada na estrutura social Bordieu 2001 A linguagem por exemplo não é apenas um meio de comunicação mas também um veículo de transmissão e legitimação de ideologias dominantes Através da linguagem certos discursos e narrativas são naturalizados e difundidos reforçando as hierarquias sociais e restringindo as possibilidades de contestação Da mesma forma a arte a educação e a religião são espaços onde as visões de mundo dominantes são reproduzidas e internalizadas pelos indivíduos reforçando a lógica do status quo No entanto Bourdieu não vê a ilusão como um destino inevitável Pelo contrário ele argumenta que a conscientização sobre os mecanismos de reprodução simbólica pode levar à contestação e à transformação das estruturas sociais Ao compreender as formas como a ilusão opera na sociedade os indivíduos podem se tornar agentes de mudança questionando as narrativas dominantes e buscando construir novas formas de organização social Nesse sentido a noção de ilusão em Bourdieu não é apenas uma ferramenta analítica mas também um convite à ação Ao desvelar as estruturas simbólicas que sustentam o poder os indivíduos podem se engajar em práticas de resistência e subversão buscando criar novas formas de sociabilidade e relações de poder mais igualitárias A conscientização sobre a natureza ilusória da realidade social é portanto um passo fundamental para a construção de uma sociedade mais justa e democrática Bourdieu 2001 Para Bourdieu a luta contra a ilusão não é apenas uma questão teórica mas também uma questão prática Ele argumenta que a transformação social requer não apenas a crítica das estruturas simbólicas existentes mas também a construção de novos sistemas de significação e valorização Isso implica não apenas denunciar as ideologias dominantes mas também criar espaços e práticas que possibilitem novas formas de expressão e representação Bordieu 2001 Assim a noção de ilusão em Bourdieu representa não apenas uma análise das formas como o poder se manifesta e se perpetua mas também um convite à ação e à conscientização por parte dos indivíduos Ao compreender a natureza ilusória da realidade social os indivíduos podem se tornar agentes de mudança e contribuir para a construção de uma sociedade mais justa e igualitária A luta contra a ilusão é portanto uma luta por uma maior democratização das formas de produção simbólica e por uma maior participação na construção do sentido da realidade social Passegg 2014 A teoria sociológica de Pierre Bourdieu oferece importantes insights sobre a forma como a sociedade opera por meio de mecanismos de codificação que conferem uma aparência de naturalidade e inevitabilidade à vida social Segundo Bourdieu a superação dessa ilusão requer uma compreensão crítica dos processos de poder e das estruturas que sustentam a ordem social vigente A codificação social conforme proposta por Bourdieu estabelece uma lógica interna que organiza e regula a vida em sociedade Essa lógica é internalizada pelos indivíduos que passam a perceber e a agir de acordo com as regras e expectativas socialmente estabelecidas reforçando a ilusão da realidade Dessa forma a codificação contribui para a naturalização e legitimação das relações de poder perpetuando desigualdades e dominação Bordieu 1987 Para Bourdieu a compreensão crítica da codificação social requer o desvelamento dos processos que sustentam as relações de poder e desigualdade subjacentes à organização da sociedade Isso implica em questionar as aparências e buscar uma compreensão mais abrangente das dinâmicas de poder que moldam nossas vidas Em outras palavras a obra de Bourdieu convidanos a uma reflexão profunda sobre a natureza da realidade social desafiandonos a buscar uma transformação social mais justa e igualitária Bordieu 1987 Ao analisar a noção de ilusão na teoria de Bourdieu é possível compreender como a sociedade opera por meio de mecanismos que naturalizam e legitimam as relações de poder A ilusão da realidade resulta da internalização da lógica de codificação pelos indivíduos que passam a perceber as estruturas sociais como naturais e inevitáveis Essa ilusão contribui para a manutenção do status quo e para a reprodução das desigualdades Diante disso a teoria de Bourdieu nos convida a questionar as formas como a sociedade se organiza e a buscar uma compreensão mais crítica dos mecanismos que sustentam as relações de poder A superação da ilusão da realidade requer uma análise profunda das estruturas sociais e uma tomada de consciência sobre os processos de codificação que moldam nossas percepções e comportamentos Bourdieu dedica especial atenção a este poder linguístico e social especial da lei de fazer coisas com palavras Essencial para essa capacidade para a reprodução e continuação da lei para a sua legitimação aos olhos daqueles que estão sob sua jurisdição é o que Bourdieu chama de poder da forma da lei Bordieu 1987 A noção de ilusão e o processo de codificação são elementos centrais na teoria de Pierre Bourdieu pois revelam como a sociedade opera por meio de mecanismos que naturalizam e legitimam as relações de poder perpetuando desigualdades e dominação Compreender essa dinâmica é fundamental para buscar uma transformação social mais justa e igualitária Em síntese a obra de Bourdieu oferece subsídios teóricos valiosos para uma reflexão crítica sobre a natureza da realidade social e os mecanismos que sustentam as relações de poder Ao desvelar os processos de codificação e revelar as relações de dominação e desigualdade subjacentes à organização da sociedade Bourdieu nos convida a repensar as bases sobre as quais nossa sociedade está estruturada e a buscar caminhos para uma transformação social mais justa e igualitária Ainda o ensaio de Pierre Bourdieu intitulado A Força da Lei apresenta uma análise sociológica profunda e perspicaz do campo jurídico desvelando suas intricadas relações com outros campos sociais e sua estrutura interna Bourdieu sustenta a tese de que o campo jurídico possui uma relativa autonomia pautada por suas próprias regras hierarquias e disputas internas ainda que esteja intrinsecamente entrelaçado com o campo do poder e as dinâmicas de força na sociedade Bordieu 1987 Um dos pontos centrais de sua argumentação reside na divisão do trabalho jurídico que embora não premeditada confere a ilusão de um sistema normativo racional e imparcial A linguagem jurídica segundo Bourdieu desempenha um papel crucial nesse processo operando efeitos de neutralização e universalização que contribuem para a crença na autonomia e neutralidade do direito É crucial destacar o poder simbólico da lei o qual emana de sua capacidade de criar realidades pelo simples ato de nomeálas bem como da formalização jurídica conferindolhe uma aparência de necessidade lógica Nesse sentido o direito não apenas reflete a ordem social mas contribui ativamente para a sua reprodução ao consagrar a visão de mundo dos grupos dominantes Bourdieu ressalta que as mudanças no campo jurídico estão intrinsecamente relacionadas às transformações no campo do poder e nas dinâmicas de força entre os diferentes grupos sociais Sua análise revela a complexidade do campo jurídico evidenciando como sua aparente autonomia e neutralidade escondem intricadas relações de poder e mecanismos de dominação simbólica Bordieu 1987 Em última instância o ensaio de Bourdieu oferece uma perspectiva sociológica singular e provocativa contrapondose à concepção do direito como um sistema autônomo ou mero reflexo dos interesses dominantes Ao desvelar as entranhas do campo jurídico Bourdieu nos convida a repensar as relações entre direito poder e sociedade lançando luz sobre as complexas dinâmicas que permeiam a esfera jurídica REFERÊNCIAS ROBBINS Derek Teoria da prática InGRENFELL M org Pierre Bourdieu conceitos fundamentais tradução de Fábio Ribeiro PetrópolisRJ Vozes 2018 pp 4663 GRENFELL Michael Biografia In GRENFELL M org Pierre Bourdieu conceitos fundamentais organizado por Michael Grenfell tradução de Fábio Ribeiro PetrópolisRJ Vozes 2018 pp 2745 PASSEGG Maria da Conceição Pierre Bourdieu da ilusão à conversão autobiográfica Revista da FAAEBA Educação e Contemporaneidade online 2014 vol23 n41 pp223235 ISSN 01047043 BOURDIEU Pierre A Força da Lei Rumo a uma Sociologia do Campo Jurídico Tradução de Richard Terdiman The Hastings Law Journal v 38 p 805853 1987 BORDIEU Pierre Science de la science et réflexivité Paris Raisons dagir 2001