'Governmental influence over rights consciousness: public perceptions of the COVID-19 lockdown' by Simon Halliday, Andrew Jones, Jed Meers and JoeTomlinson in (2024) Journal of Law and Society comments
Legal consciousness has long been a major focus of enquiry within socio-legal studies – sufficiently so, indeed, that it may be difficult to frame it as a coherent field of enquiry. Examination of how the scholarship has developed over time reveals various underlying theoretical convictions and eclectic methodological approaches. Nonetheless, it is fair to say that a decent amount of the research has been critically informed. The puzzle of state law's hegemonic force – why people continue to turn to state law despite its failure to live up to its ideals – has concerned many critical scholars. Relatedly, there have been examinations of how some seek to resist law's power, albeit in ways that may ultimately sustain it.
Some of the work on rights consciousness more specifically has similarly been critical in its orientation. Here, important insights have been offered about the ways in which law, envisaged as a solution to society's justice problems, falls short of achieving its potential. Legal rights may not fulfil their promise if, for example, the assertion of rights consciousness reinforces a sense of victimhood or requires the overcoming of significant obstacles, or if the implementation of rights policies in various non-legal settings alters the meaning of the rights in law.
The starting point for these critical studies of rights consciousness tends to be people's sense of grievance. As Amy Blackstone et al. have put it, ‘[h]ow do individuals respond when they feel their rights have been violated? Do those who perceive a wrong simply tell the wrong-doer, do they tell others, or do they ignore it?’ Senses of grievance might concern experiences of offensive public speech, instances of abuse and harm, or a sense of discrimination in relation to ethnicity, gender, disability, or body shape.
Critical scholarship in this vein has produced a large and valuable body of research. However, our suggestion in this article is that there is a dimension of the critical approach to rights consciousness that is largely missing from the field. Because the critical enquiry generally starts with people's sense of grievance, there tends to be an elision of a sense of injustice and rights consciousness, and that elision carries a risk: that we overlook situations where there is not necessarily the coincidence of rights consciousness and a sense of injustice.
To put it in terms of William Felstiner et al.’s framework for analysing the antecedent stages of disputing, much of the critical work on rights consciousness focuses on the ‘claiming’ stage of the ‘naming, blaming, claiming’ sequence; it demonstrates the difficulty of claiming, notwithstanding someone's sense that a particular individual or organization is responsible for the unacceptable infringement of their rights. Our argument is that we might usefully shift our attention to the prior ‘blaming’ stage of the sequence: ‘the transformation of a perceived injurious experience into a grievance’, as Felstiner et al. put it. The question of whether people do, in fact, regard a breach of rights as an unacceptable experience for which another party should be held responsible ought to be included as part of a broader critical enquiry around rights consciousness. To do so, however, we must keep rights consciousness conceptually distinct from a sense of grievance.
There is good reason to hypothesize that a sense of rights infringement will not always coincide with a sense of grievance. Within political science, for example, empirical research suggests that, in certain situations, the public are willing to trade off civil liberties for security. Likewise, within legal theory, fundamental rights are only rarely seen as absolute; legal doctrine is premised on the idea of human rights frequently being qualified or limited in various ways. Legal consciousness research can build on these insights and broaden its perspective on right consciousness by interrogating rather than presuming the relationship between perceptions of rights violations and a sense of injustice. Importantly, this would open up a new space for critical enquiry around rights consciousness.
This article proceeds as follows. In the next section, we briefly set out the nature of our research project in which we explored rights consciousness, examining whether and in what ways the United Kingdom (UK) public felt the COVID-19 pandemic lockdown to be a violation of their basic rights. We present our quantitative data on the relationship between people's rights consciousness and their sense of grievance around lockdown, showing that, while most people felt that lockdown was a violation of basic rights, they did not feel aggrieved about it. The section that follows interrogates the project's qualitative data to consider people's reasoning processes around rights violations and their acceptability. We then explore the determinants of rights consciousness during the pandemic, analysing our national survey data. Finally, the article discusses the significance of our findings for the critical study of rights consciousness.
