Social Meaning of Law

Social science provides a foundation for understanding the human side of law.

Scholarship in the Division of the Social Sciences is rooted in a fundamental desire to understand individuals, communities, and society as a whole. These paths of inquiry intersect across fields and across disciplines. In the first in a series of features on emerging areas and methods of interdisciplinary inquiry, this issue of Dialogo explores the intersections of law and social sciences.

Investigating legal processes and human behavior together can yield important insights into law, authority, and systems of rule — and the varied historical, cultural, and socio-political contexts in which law is interpreted and understood.

Justin Richland, Jane Dailey, and Kimberly Hoang are three social sciences faculty whose research interests explore these issues. To them -- and many others across the division -- important truths about the meaning and effect of law emerge when people, cultures, and communities are brought into the foreground.

“Law has always intellectually and theoretically rested at the bottom of social science inquiry,” says Richland, Associate Professor in the Department of Anthropology. 

Custom and Tradition

Justin Richland with fellow Hopi Appellate Court justices Patricia Sekaquaptewa and the late Emory Sekaquaptewa, her uncle and a founder of the court.

“Native American communities were largely invisible to me growing up as I did in West Los Angeles,” Richland says. That changed in law school, when he joined a clerkship program with the Appellate Court of the Hopi tribe in Arizona organized by a fellow student and Hopi tribe member, Patricia Sekaquaptewa. At the time, Richland says, “I was already getting interested in theoretical questions and questions about the social meaning of law.”

The Hopi court system was created in 1972 to replace the Code of Federal Regulations courts that were set up by the US Bureau of Indian Affairs earlier in the century, although Hopi also remain subject to federal and state law in certain criminal cases or disputes involving people from outside the tribe. But it was not until the 1990s that Hopi tradition became a central concern for the court. “The big issue at the time was, and remains, how should the Hopi courts think about customary law, about how their own norms, values, commitments, practices that emerge from their unique culture and language shape their contemporary jurisprudence,” Richland says.

In his clerkship and subsequent research for his doctorate in Linguistic Anthropology, Richland, who is also an Associate Member of the Law School, was invited by the court to study how individuals brought Hopi tradition and rhetoric into the courtroom. In addition to observing public and private deliberations, Richland was given access to an audio archive of the courts proceedings. Richland transcribed hundreds of recordings to analyze the language Hopi litigants were using to represent themselves.

People were coming to court and…invoking things like custom and tradition and the way Hopi does things,” Richland says. “And even though the court itself looks a lot like an Anglo style system, they are required under Hopi Law to treat as authoritative custom and tradition in the resolution of disputes there.

Richland’s current research goes beyond the courtroom to examine how expressions of tribal sovereignty are built into the way Hopi define their jurisdiction in specific disputes with the US government. Through observation of tribes’ encounters with federal agencies that are mandated to perform “meaningful tribal consultation” — the kind of consultation that was not pursued with the Standing Rock Sioux in the Dakota Access Pipeline dispute — Richland continues to discover that big ideas about identity and self-determination are articulated in quotidian legal contexts.

“As a linguist and a lawyer I became really interested in the ways in which sovereignty is an everyday accomplishment,” Richland says. “The way in which it gets done in the law, or in legal systems. What I found was that jurisdiction, which sounds like a routine regular process, actually is the place where a government, a legal institution, gets to say for itself what are the principles, what are the limits and lines of its authority."

Playing in the Gray

Kimberly Hoang presenting to graduate students and fellow faculty at the Money, Markets and Governance workshop on October 3, 2017.

Sociologist Kimberly Hoang also examines how legal systems vary and confront one another across cultures. Based in her training as a scholar of gender and globalization, her first book, Dealing in Desire: Asian Ascendancy, Western Decline, And the Hidden Currencies of Sex Work, began as an appraisal of the sex industry and sex workers in hostess bars in Ho Chi Minh City, Vietnam. But because her fieldwork coincided with the 2008 global financial crisis and the opening of new markets in Southeast Asia, she noticed the bars became an important space for deal making and assertions of economic power. “All of a sudden I start to realize that most of the men I was studying were involved in real estate deals and investments,” Hoang says.

Hoang refocused her research on understanding how business and social contracts were being formed, and how the behavior of men and women in the bars reflected and reinforced broader transformations in the global economy — which today sees some Southeast Asian economies growing at more than double the rate of more developed economies in the West. Investors from the United States and Europe face challenges entering emerging markets where personal relationships and local familiarity with the limits of law are paramount, but often problematic under laws like the Foreign Corrupt Practices Act.  

It’s a market that’s really interesting to me,” Hoang says, "because you have Korean and Taiwanese investors who can come in and do things in a very “Asian” way, if there is such a thing, or a very Vietnamese way, which is all about handshakes and relationships — and you have Western and Japanese investors who really believe in rule of law and contract, and try to develop a relationship with the government to revise the law or push policy.

Observing these distinct approaches to business in the hostess bars was Hoang's first foray into thinking about why law matters. “It began a process for me in thinking about the relationship between legal versus illegal activity in markets, and how does the informal economy affect relationships in the formal economy. People tend to study them as parallel processes, and very few people study them as co-constitutive of each other,” she says.

Now nearly a decade after the 2008 crisis, Hoang is engaged in a new ethnographic project to trace how emerging and frontier markets in Southeast Asia have become newly accessible to Western investors through a complex web of legal, and sometimes illegal, activities. Many business transactions depend on connections to local officials and bureaucrats — bribes facilitation payments are among the ways building permits and licensing are approved. Businesses may have multiple sets of accounting records that they use depending on what they want known — particularly when dealing with taxes. “This is common practice in emerging markets,” Hoang says. “One for the tax guy and one for that’s the real book. In a US setting that sounds really crazy, right? It sounds very unlawful. But in fact, in these settings, this is how business is done.” 

The first phase of Hoang’s current project involved hundreds of interviews with a wide array of financial professionals involved in the movement of money across multiple jurisdictions. She spoke with individuals active at different stages of international transactions, from investors and CEOs to lawyers and company secretaries, asking them how they raised capital and sourced deals to deploy capital in emerging markets where there is a great deal of political and economic risk.

Using this material, Hoang next will develop a composite story following capital flows — from off-shore tax havens into other off-shore accounts in Hong Kong and Singapore, and then to Vietnam and Myanmar — that sheds light on the perceptions and behaviors of the many actors in involved in making global investments possible.

“How do you compete in a world where other governments aren’t enforcing laws on their own investors?” Hoang asks. For the hundreds of people she interviewed, Hoang says, the answer was universal. “People would say if you want to be an investor in this economy, you have to know how to ‘play in the gray,’ you have to know that the laws are open to interpretation, the legal institutions aren’t clear, the law is constantly changing, you have to be flexible.’”

Wrangling with the ambiguities in the encounter between legal systems and local practices has led Richland, too, to view law as a constantly shifting, if fertile, terrain. The interplay of Hopi and federal law, tribal traditions and court norms, inspires social and legal questions that can never be fully resolved. 

“The truth is these places are not static,” Richland says. “These are all live issues, being worked out on a case by case basis. That’s how a jurisprudence works out… The drift and flow of principles unfold in their confrontation with the practical dimensions of everyday life.”

To Think Like a Lawyer

In addition to her research on the American South after emancipation, Jane Dailey is the co-author of a new two-volume history of the United States from the ice age to the present, Building the American Republic (University of Chicago Press).

Like Richland, historian Jane Dailey has found rich material in court records and transcripts for her research on post-Reconstruction politics and law in the United States. “It’s one of the few places you can find the voices of people who don’t leave written records of their own,” says Dailey. “People who don’t leave diaries, people who don’t leave correspondence — they speak in court, and you have transcripts of that.” 

Legal transcripts can reveal how people interact with the law, how they make and remake law in the courts, and what their expectations of the law are, Dailey says. “The post-emancipation South is a particularly interesting place to observe this process, because the reconstruction amendments to the constitution, especially the 13th and 14th amendments—were so vague and open to interpretation.”

In Dailey’s first book, on interracial politics in Virginia, she was struck by the similarity of slippery-slope arguments made against integrated schools in the 1880s and then again in the 1950s, when the Supreme Court ruled against segregated schools in Brown v. Board of Education. “It got me thinking about this canard—that anything interracial will lead inevitably to interracial sex and interracial marriage, and mixed race children—and I started thinking about the longer history of that slippery slope argument,” she says. 

The book Dailey is now working on, Sex and Civil Rights, examines racist and anti-racist law and rhetoric on interracial sex beginning with emancipation in 1865 through the 1960s. It took more than a century—until its 1967 ruling in Loving v. Virginia—for the Supreme Court to finally declare racially restrictive marriage laws unconstitutional. Because the postwar world of racial segregation remained anchored by anti-miscegenation laws, Dailey says, she couldn’t write the book without understanding “how legal systems work, the relationship between state and federal law, and how to think about the constitution—particularly the Fourteenth Amendment.” 

In an article on “Race, Marriage, and Sovereignty in the New World Order,” Dailey places a 1948 California Supreme Court ruling against that state’s anti-miscegenation laws in the context of changing legal ideas that emerged with the end of the Second World War and the nascent Civil Rights movement.

"The trial transcript of Perez v. Sharp is a wonderful read,” she says. “Without having some knowledge of how the Fourteenth Amendment works, though, I would have missed all the fun. One of the justices, Roger Traynor, interrupts the lawyer for the plaintiff and says, ‘That argument you’ve got, that’s really a losing one, how about this one? Forget about the First Amendment; let’s go equal protection.’ You don’t see that in a courtroom! You don’t see one judge saying ‘How about this argument that you haven’t actually raised? It might be a winning argument.’ Unless you understand a little bit about how constitutional law works, it’s hard to figure out why he thinks that his argument is stronger than the plaintiffs’ and why other justices don’t buy either argument.

In a concurring opinion in the same case, Associate Justice Jesse Carter cited the recently enacted United Nations Charter to affirm that “the matter of race equality should be a settled issue.” Carter’s argument introduced a different language of dignity and fundamental human rights, Dailey says, one that reflected new norms emerging in international instruments like the Universal Declaration of Human Rights — ratified mere weeks after the court issued its ruling. “Perez is one of those decisions when you can see legal change happening right in front of you,” Dailey says.

It took nearly two more decades, but Perez v. Sharp eventually served as a key precedent when the U.S. Supreme Court cited it in its 1967 ruling that invalidated anti-miscegenation laws throughout the nation. And it provided the primary basis for the California Supreme Court's decision in 2008 that declared restrictions on same-sex marriage unconstitutional. 

Some of the same arguments that were used to oppose interracial sex in the last century continue to be heard in ongoing battles over equal rights as expressed in the Fourteenth Amendment, and religious freedom, enshrined in the First.

Many white Southerners argued against school desegregation by arguing that it would lead to interracial marriage and mixed-race children,” Dailey says, “which, they said, defied God’s plan for the world.  People accused the Supreme Court of forcing people to act against their faith.

That argument ultimately failed in the realm of school segregation, but has been revived in the current same-sex marriage debate.

Dailey recently served as an expert witness for the American Civil Liberties Union in a Washington State lawsuit involving a florist who, citing her “relationship with Jesus Christ,” refused to provide flowers for a gay couple’s wedding. The court ultimately rejected the florist’s demand for a religious exemption. “My job was to come in and say we’ve seen this before, we’ve seen these exact Bible verses before, and to show that the religious defense of discrimination a losing argument then, and should be a losing argument in the courts now.”

Real Actors Back to the Story

Richland is active in the courtroom too. Because of his familiarity with the Hopi Appellate Court and his research into Hopi tradition and law, he was invited in 2015 to serve on the court as an Associate Justice alongside his former classmate Sekaquaptewa and Chief Justice Robert Clinton, JD’71. Drawing on his academic background to think through the issues, he reviews cases on matters ranging from divorce to inter-tribal disputes over land. “It’s hard to overstate how humbling it is,” he says.” You get a real sense of a community and how it works, of a place and how it’s lived.” 

On campus, Richland is teaching graduate-level courses on Language and Law, Indigeneity, and Indigenous Methodologies, as well as the College Core social science sequence on Power, Identity, Resistance. He also leads a practicum in the Law School in the style of the clerkship that first sparked his own interest in Hopi law. 

To Hoang, the questions raised by her fieldwork require answers that no single discipline can address. Because much legal and economic scholarship today relies on large scale quantitative studies, Hoang says it often misses the influence of individuals. “What the social sciences can bring to the table,” she says, “is nuance and depth of data, and complexity, and bring real actors back to the story. What I’m trying to do is bring these fields into conversation with each other and think about how people, real human beings, shape these markets.”

One way Hoang plans to do that is by becoming a student again herself. In addition to her own teaching in Sociology (her courses this Fall include Social Theory and States, Markets, and Bodies), she is attending classes with professors in the Law School, Business School, and Economics Department to deepen her understanding of the technical legal and financial issues in her research. “Part of what I’m trying to do…is to really familiarize myself with and understand these concepts and then think about how people are using them in practice on the ground,” she says. “It’s a way for me to maintain that intellectual curiosity and excitement and energy. And I think that energy shapes how I come into the classroom."

As the Division builds new resources for collaboration among scholars and encourages interdisciplinary research, these and other faculty are helping shape new approaches to social scientific studies of law and the people who live with and define it. Hoang sees her experiences working with faculty across University departments and schools as just the beginning of pushing the boundaries of legal studies forward in the social sciences. 

“My dream is for UChicago to be the premiere institution that does work at the intersection of economy, law, and social sciences and humanities,” she says. “I think that’s very possible with the kinds of people we have on campus. That’s something that takes a number of people and ideas…a body of work done by different individuals in conversation with each other.”