3.2 Law in action vs law in books
Most people's experience of law is with what might be called the ‘law in action’. We observe or encounter the application of law in practice through our contact with, for example, solicitors, the courts or the police, and we tend to associate their work with the law. We have, however, seen that social workers are also legal actors, professionals with legal power and authority. They are therefore very much part of the law in action, even if they do not fit your immediate associations with this role. You will also be aware of the existence of ‘law in books’ – the written rules and principles that are the sources on which these legal actors depend, but this idea of law tends to be regarded as the province of experts within the legal profession, beyond public knowledge and often beyond public concern. It is only when the law is put into action, or changes are proposed in the political sphere, that our awareness of the law in books is heightened and can become the subject of intense public debate.
In theory there ought to be a direct relationship between the law in books and the law in action, but as the legal process is a human process there is often a difference between what the law makers envisaged and our actual experience of being subject to law. This is not in itself a bad thing; laws are applied in complex and ever-changing social settings and practitioners may require discretion in order to operate effectively. However, discretion can give their actions the appearance of individual decisions so practitioners appear not as governed by law, but as the law itself. This impression is not problematic if decision makers remain accountable and act within legal rules and principles, but when they fail to do so the public's understanding of law can be affected and the reputation of the law damaged as a result. Social workers therefore must learn to question whether what happens in reality is actually what the law requires, and illegitimate actions must be challenged in order to avoid oppressive practice. This includes an obligation to communicate their role in law. Social work's own reputation and the relationship between social workers and service users can also be affected if the legitimate use of discretion is mistaken for the imposition of a worker's personal opinion, instead of a professional judgement authorised by law.
When faced with limited resources and ever-increasing demands, legal actors can often become disillusioned with the demands of law and perceive the law in books to be too theoretical, remote from the practical use of discretion ‘on the street’. This is a dangerous attitude for professionals to acquire. For example police powers of stop and search are, in books, fair and non-discriminatory, but if exercised in an unfair and oppressive manner they will not be, as research into the disproportionate use of powers against young black men has shown (Macpherson, 1999). All citizens have an interest in ensuring that those acting under the authority of the law do so in a fair and impartial way, and this includes health and social care professions as well as the police.
The common assumption that the public face of law (or the law in action) is all about what the courts and the police (and social workers) do – creating order and resolving disputes through the exercise of legal authority – is also misleading. It projects an idea of law which is distant from the ordinary public and solely concerned with the use of power or control. We often overlook the fact that we operate within legal frameworks most of the time, without being aware of it. Legal rights and obligations provide context to our everyday actions; they may be less visible, but are central to modern life. Law is not only important when things go wrong; it creates the environment in which order is maintained and disputes can be avoided. Law regulates social life, outlining our responsibilities to our children, entitlement to our homes, education, employment, consumer rights and so on. Each member of society can be empowered by having knowledge of legal rules, as the following activity demonstrates.
Activity 5: Knowing the law
Imagine that you have a 15-year-old son who has just been excluded from school because of his persistent refusal to comply with the rules regarding appearance. He wears the school uniform but insists on wearing a gold ring in his ear.
Make brief notes in answer to the following questions (don't worry if you do not know what the legal position is).
Does the school have the right to exclude your child?
Is it a matter to be decided entirely at the school's discretion?
Do you know what your legal position is?
The law gives considerable discretion to schools in the matter of running their own affairs, but it also provides a framework for the exercise of such discretion and imposes certain procedural obligations on education authorities: for example, to provide parents with a right of appeal against the exclusion of their child..
The current legal position is as follows: an education authority can exclude a pupil:
where it is of the opinion that the pupil refuses or fails to comply, or the parent refuses to allow the pupil to comply, with the rules, regulations or disciplinary requirements of the school. The other possible ground is where it considers that to allow the pupil to continue attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of other pupils.
Parents have the right to take the matter to an appeals committee set up under the Education (Scotland) Act 1980. Children with sufficient understanding, and all pupils over 16, have a right of appeal against their own exclusion.
Your knowledge of your rights as the parent of a child excluded from school can be critical. If you know your legal options, you are more likely to be confident and assertive. If you are unclear about your options you may be hesitant and place yourself and your child at a disadvantage. Knowing the law and the policy of the local education authority will help you to be aware of the available options and enable you to make the most appropriate decision in the circumstances.
The difference between the position of the parent in this example and that of a social worker is that while there are clear advantages to knowing where you stand as a parent in a dispute with a school (when you are confident about your rights you might handle the dispute more effectively), a social worker must know the law. Their responsibility for other people's well-being makes it imperative. Service users and carers can also be empowered by knowledge of the law and their rights, and social workers should work in partnership with them to enhance this understanding.
To suggest that we can all be empowered by knowledge of the law does not imply, however, that law is always beneficial to our interests. The idea that the law is concerned with ‘doing justice’ can ring hollow to those who feel disadvantaged by the law, or are not able to access its promised protections. We will see throughout this course that the current legal position can fall short of expectations and fail to provide redress. Critical legal scholars have questioned the law's claims to impartiality, equality and fairness, which formal legal procedures and principles aim to uphold. It should be remembered that both the content of law and its method of application is a product of society and can therefore reflect and reinforce social injustice which exists elsewhere. An understanding of the legal position is, however, necessary before you are able to form a more critical view of its implications, and work to effect change.
Social workers are well placed to recognise when the law is inadequate in its protection of vulnerable groups or has an adverse impact on their lives. They are also in a difficult position as they must work within existing legal provisions which may be regarded as discriminatory, bringing them into conflict with service users and carers. Such professional dilemmas can only be fully appreciated if you have an understanding of the law and of social work values. We will see throughout this course that social workers can challenge social injustice through creative use of the law to meet and maximise the interests of service users. Where the law falls short, they can use their professional voice to highlight its limitations and campaign for reform.