Legal Consciousness and Cultural Capital

Abstract

In this article, we use a Bourdieusian framework to theorize the relationship between cultural capital and legal consciousness, and in turn to consider how variation in legal consciousness contributes to the creation and maintenance of legal hegemony. We investigate how cultural capital shapes the ways people navigate situations that force them to mediate between state‐conferred rights, on one hand, and requests from state authority, on the other. Specifically, we analyze open‐ended responses to a series of vignettes about constitutional rights in the criminal procedure context. We find that high cultural capital gives rise to a greater sense of self‐efficacy in police–citizen interactions. This finding parallels the literature on the influence of cultural capital in the education context and may point to a more general pattern of self‐advocacy within the juridical field. People with high cultural capital also evince a more salient sense of entitlement, understanding their own needs and desires as paramount. The social processes we identify may make people with limited cultural capital more vulnerable to investigative authority, and thus more susceptible to arrest and prosecution. Even if knowledge of a right and the opportunity to assert that right are equally distributed, meaningful access to that right remains inequitable.

Full text

Legal Consciousness and Cultural Capital
Kathryne M. Young Katie R. Billings
In this article, we use a Bourdieusian framework to theorize the relationship
between cultural capital and legal consciousness, and in turn to consider how
variation in legal consciousness contributes to the creation and maintenance
of legal hegemony. We investigate how cultural capital shapes the ways peo-
ple navigate situations that force them to mediate between state-conferred
rights, on one hand, and requests from state authority, on the other. Specifi-
cally, we analyze open-ended responses to a series of vignettes about consti-
tutional rights in the criminal procedure context. We find that high cultural
capital gives rise to a greater sense of self-efficacy in police–citizen interac-
tions. This finding parallels the literature on the influence of cultural capital
in the education context and may point to a more general pattern of self-
advocacy within the juridical field. People with high cultural capital also
evince a more salient sense of entitlement, understanding their own needs
and desires as paramount. The social processes we identify may make people
with limited cultural capital more vulnerable to investigative authority, and
thus more susceptible to arrest and prosecution. Even if knowledge of a right
and the opportunity to assert that right are equally distributed, meaningful
access to that right remains inequitable.
When courts hand down rulings about police–citizen encoun-
ters, they often assume that rights assertion is a straightforward
matter: If a suspect does not want her home searched without a
warrant, she can refuse. If a suspect would rather not tell police
where he went last night, he need not speak to them. Courts tend
to hold, either implicitly (e.g., United States v. Drayton [2002]) or
explicitly (e.g., Salinas v. Texas [2013]) that the rights assertion
playing field is level—that is, that the US Constitution affords
everyone a meaningful chance to assert his or her rights.
But as an empirical matter, we know little about this playing
field. Do all innocent people feel equally enabled to assert their
rights? What situational factors shape how people think about con-
stitutional rights? Occasionally the Supreme Court has lamented
this dearth of research. During oral argument in Brendlin
v. California (2007), for example, Justice Stephen Breyer
The authors thank Rebecca Sandefur and two anonymous reviewers for their
thoughtful feedback, David Sklansky and Robert Weisberg for discussions about the legal
implications of this project, Emma Aulenback for her research assistance, and several
instructors who generously allowed us to distribute surveys in their courses.
Please direct all correspondence to Kathryne M. Young, Sociology Department,
Thompson Hall, 200 Hicks Way, Amherst, MA 01003; e-mail: young@umass.edu.
Law & Society Review, Volume 54, Number 1 (2020): 33–65
©2019 Law and Society Association. All rights reserved.
33

commented on the difficulty of assessing whether a suspect felt
“free to leave” (the relevant legal standard) an encounter with
police. Justice Breyer asked:
So what do we do if we don’t know? I can follow my instinct. My
instinct is he would feel he wasn’t free because the [police car’s]
red light’s flashing. That’s just one person’s instinct. Or I could
say, let’s look for some studies. They could have asked people
about this and there are none.
Indeed, there have been few empirical investigations of rights
consciousness in police–citizen encounters (for exceptions, see
Kagehiro 1988; Lichtenberg 1999; Young 2009; Young and Munsch
2014; see also Nadler 2002; Chanenson 2004). Courts are fre-
quently called upon to judge whether a suspect felt “free to leave” a
police encounter, or when a “reasonable person” expects privacy,
yet they lack data to help them make these determinations. The
omission is significant; judges could make more informed assess-
ments of how constitutional rights operate in practice if they under-
stood how people engage with law. Additionally, the law and society
literature would benefit from a more complete understanding of
how constitutional rights work on the ground. The present study
begins to fill this gap by looking at the relationship between legal
consciousness and cultural capital.
1. Legal Consciousness
Legal consciousness refers to “the way in which law is experi-
enced and interpreted by specific individuals as they engage, avoid,
or resist the law or legal meanings” (Silbey 2001: 8626). Drawing
on sociological, anthropological, and legal scholarship, the term
encapsulates “a person’s attitudes toward, willingness to mobilize,
suppositions about, and experiences of the law” (Young 2014: 501)
and is sometimes referred to as a person’s “commonsense under-
standing” of how the law works (Nielsen 2004: 7). In part, the
study of legal consciousness was developed to gain conceptual
leverage on the persistence of legal hegemony and explain the
social processes through which legal hegemony and state authority
are created and sustained (Silbey 2005). It is an important way that
the field of law and society has grappled with the gap between the
law on the books and the law in action.
In 2005, a key scholar of legal consciousness declared that the
concept had outlived its usefulness. Silbey wrote, “Rather than
explaining how different experiences of law become synthesized
into a set of circulating, often taken-for-granted understandings
and habits, much of the literature tracks what particular individuals
34 Legal Consciousness and Cultural Capital

think and do” (2005: 324). While scholars acknowledged that legal
consciousness was an “ongoing, dynamic process” rather than a
stagnant category (McCann 1994: 7), much of the legal conscious-
ness literature (though not all of it—see, e.g., Abrego 2011; Hoff-
mann 2003; Zenmens 1983) documented the attitudes and actions
of categories of actors. One important vein emphasized the differ-
ences between people’s beliefs about the law in different circum-
stances (Ewick and Silbey 1998; Fleury-Steiner 2003; 2004;
Harding 2006; Levine and Mellema 2001; Marshall 2005; Merry
1990; Quinn 2000), and another examined the demographic factors
associated with particular beliefs (Hirsh and Lyons 2010; Moustafa
2013; Nielsen 2000; Wagatsuma and Rosett 1987). These contribu-
tions were fundamental, but in Silbey’s estimation insufficient to sus-
tain the subfield’s continued theoretical development.
In the years since Silbey pronounced legal consciousness in its
final throes, other scholars have set about its resuscitation. One
approach entails the recognition of legal consciousness as a rela-
tional phenomenon, shaped by collective social meanings in addi-
tion to individual cognition (Berrey and Nielsen 2007; DeLand
2013; Gallagher 2006; Marshall 2005; Young 2014). These frame-
works, including Young’s characterization of legal consciousness
as a “relational” process involving “second-order” beliefs and
other contingent and socially produced understandings (2014:
504, 526), answer Silbey’s call for work on “the ground that
enables perception” rather than on “the pixels of perception”
(Silbey 2005: 358)—on social processes and mechanisms rather
than stagnant states of mind (Gomez 2016). These elaborations
provide a partial response to Silbey’s critique that earlier litera-
ture did not “capture the critical sociological project of explaining
the durability and ideological power of law” (2005: 358):
[T]hese empirical surfaces ‘mask the structures that are realized in
them’ (Bourdieu 1990: 126). Thus, when research manages to pro-
vide varying accounts of the law that correlate significantly with
demographic categories… the authors need to show us how the
different forms of consciousness or ways of participating work with
each other to constitute the poweroflaw,orlegality…Thestruc-
ture enabling and constraining these perceptions, attitudes, opin-
ions, or, in Bourdieu’s term, dispositions is absent (Silbey
2005: 357 ).
Power, here, is critical. Although Bourdieu’s handful of works
on the sociology of law rarely appear in law and society literature,
a Bourdieusian framework offers a way to think about legal con-
sciousness as a social process and to explain continued inequality
within legal systems.
Young & Billings 35

2. Bourdieu and the Law
In one of Bourdieu’s few works on the sociology of law, he ana-
lyzes the “juridical field” and its invisible influence on actors in the
legal system. Employing his theory of fields, Bourdieu demon-
strates that like other social fields, the juridical field comprises a
system of micro- and macro self-sustaining structures that form a
distinct culture. His analysis demonstrates that a set of social, psy-
chological, economic, linguistic, and political practices contribute to
the law’s functions (Bourdieu 1986). In a sense, these invisible
structures parallel law and society’s overarching intellectual project
of understanding how law works in everyday settings. Bourdieu’s
notion of “habitus,” as applied to law, is “an intermediate concept
between rules—in the legal sense—and causality or rules in a phys-
ical sense” (Villegas 2004: 65). Like legal consciousness, habitus
involves the orientations, expectations, and dispositions acquired
through a person’s idiosyncratic, socially constructed experience.
If the social field of law is analogous to “law” in the sense of
legal pluralism (see Merry 1988), then law’s “habitus,” at its core,
is analogous to legal consciousness. The task of understanding
habitus within the legal field is the task of understanding the
social dynamics that underpin and perpetuate state violence, state
authority, and legal hegemony. Thinking about legal conscious-
ness this way is responsive to Silbey’s critique (2005), and power-
ful coupled with the construction of legal consciousness as
inherently relational.
What, then, would this Bourdieusian construction of legal con-
sciousness look like? How can we study legal consciousness in a
way that draws on its relational nature and “the structure enabling
and constraining these perceptions, attitudes, opinions, or in
Bourdieu’s term, dispositions”? (Silbey 2005: 357). To understand
the juridical field, Bourdieu writes, we must uncover the social
structures that sustain it. This includes understanding how individ-
uals in different power positions understand and interact with the
law. Galanter’s classic work, “Why the Haves Come Out Ahead”
exemplifies this kind of analysis (1974). Drawing on Weber,
Galanter explains how the legal system amplifies the advantages of
“haves” over “have nots.” Weber claims that formal equality before
the law is synonymous with domination, since haves’ advantages
are reinforced by the formal structure (Weber 1954: 188–91)—a
formulation on which Bourdieu relies as well.
Another example (and one Silbey points to) is Larson’s 2004
study of security exchanges. Comparing regulatory implementa-
tion in Ghana and Fiji, Larson observes that identical regulations
can result in widely divergent practices based on how stockbro-
kers are oriented to formal rules versus floor-based internal
36 Legal Consciousness and Cultural Capital

norms. Legal consciousness becomes not a question of degree, but
a means of coping with the “inherent indeterminacy of the law in
action” (Silbey 2005: 360, citing Larson 2004). Larson conceives
of legal consciousness as “an emergent feature of a field of social
action” and explains how structural factors shape the “orienta-
tions, behavior, and relations of actors within the field”
(2004: 737).
Gomez’s (2016) application of critical race theory to legal con-
sciousness provides a third example. She reviews Obasogie’s
Blinded by Sight (2013), demonstrating that the processes through
which blind people learn about race, which Obasogie describes,
parallel the processes through which people learn “common-
sense” ideas about law. Gomez suggests that Obasogie’s study of
the social processes that reproduce racial consciousness should
serve as a template for legal consciousness scholars to study the
processes that reproduce legal consciousness. Like Silbey, Gomez
urges legal consciousness scholars “to explore law in everyday life
in such a way as to illuminate the process of meaning making”
(Gomez 2016: 1075).
3. Cultural Capital and Legal Consciousness
According to Bourdieu, cultural capital takes three forms: the
embodied state (long-lasting dispositions of the mind and body, such
as particular ways of approaching problems); the objectified state
(cultural objects that can typically be converted into economic capi-
tal); and the institutionalized state (possession of socially recognized
credentials, such as academic degrees) (Bourdieu 1986). Much of
our analysis herein focuses on the embodied state and much of our
operationalization focuses on the institutionalized state. Yet, the
interrelation of the three forms is so tight that trying to separate
them is not especially fruitful. Indeed, most articulations of cultural
capital in the sociological literature encompass all three. Here, Lam-
ont and Lareau’s definition of cultural capital is useful: the “institu-
tionalized, i.e., widely shared, high status cultural signals (attitudes,
preferences, formal knowledge, behaviors, goods, and credentials)
used for social and cultural exclusion” (Lamont and Lareau 1988).
We agree with Lareau and Weininger’s argument that this broad
definition, as opposed to a narrower definition that focuses primar-
ily on “highbrow” tastes or “elite status cultures,” is most generative
(2003). Conceived in this way, cultural capital includes knowledge,
skills, tastes, mannerisms, and interactional styles that can be
parlayed into social advantage or power, shaping and being shaped
by the class structure in societies (Bourdieu 1974; 1984).
Young & Billings 37

Silbey writes:
“[T]he central theoretical issue is… whether the cultural terms
with which we understand and communicate, and with which
we constitute our lives, can be correlated with concrete inequal-
ities. Legal consciousness should not be understood in relation
to external power and internal will, but in relation to the mate-
rial inequality of our social life and the cultural terms of our
understanding” (2005: 359).
These “cultural terms of our understanding” and the social
processes and interactions that situate and give rise to these terms
constitute a person’s “feel for the game” (Bourdieu 1990).
Although extant literature has rarely used cultural capital to
examine people’s relationship to the legal field, it has been used
extensively in sociological examinations of education (DiMaggio
1982; Dumais 2002; Khan 2011; Lareau 1987; 2002; 2011;
Lareau and Weininger 2003; Marteleto and Andrade 2014; Sulli-
van 2001) and health care (Abel 2007; 2008; Khawaja and Mowafi
2006; Malat 2006; Shim 2010).
Education research shows that the cultures in which middle-
and upper-class children are raised help them reap more educa-
tional benefits than working-class children (Aries 2008; Armstrong
and Hamilton 2013; Calarco 2018; DiMaggio 1982; Khan 2011;
Lareau 1987; 2011). Formal educational institutions, despite their
theoretical (and, to some extent, actual [Downey et al. 2004; Mullen
et al. 2003]) roles as social equalizers, reward upper-middle class
culture. Lareau demonstrates that children are socialized to navi-
gate institutions in ways that reflect and replicate their backgrounds
(2002). Upper-middle class parents teach children to interact with
authorities as equals, while working-class children are taught to
approach institutions with suspicion and defer to authorities even
when receiving unfair treatment. These class differences, which
Lareau documented across children of different races, are salient in
what Ridgeway and Fisk (2012) call “gateway interactions:” interac-
tions between people from different social class backgrounds that
are crucial for well-being and social mobility, such as job interviews,
college interviews, and medical appointments. Children with more
cultural capital learn to use it to reap benefits from people and insti-
tutions, while working-class children are socialized to act in ways
that result in unsuccessful gateway interactions, further perpetuat-
ing inequality. Relatedly, Calarco found that compared to working-
class children, middle-class children were more willing to ask
teachers for assistance and interrupt them to seek help (2011;
2018), and Jack found that middle-class undergraduates were both
more proactive and more comfortable engaging college authority
figures than were their lower-income counterparts (2016).
38 Legal Consciousness and Cultural Capital

Similarly, health scholars draw on the concept of cultural capi-
tal to identify causes of health disparities (Abel 2008; Malat 2006).
Shim introduces the term “cultural health capital,” which she
defines as the “repertoire of cultural skills, verbal and nonverbal
competencies, attitudes and behaviors, and interactional styles,
cultivated by patients and clinicians alike, that, when deployed,
may result in more optimal health care relationships” (2010: 1).
Cultural health capital theorizes the sources of different outcomes
in patient-provider interactions by examining the production and
reproduction of social inequality via these interactions. Others
elaborate on this framework, describing the social processes
through which habitus contributes to differential health outcomes
(Dubbin et al. 2013; Glanville and Story 2018; Madden 2015).
The parallels between these lines of research and Silbey’s
vision for legal consciousness are striking. Cultural capital and
habitus have been conceptually deployed to understand people’s
attitudes toward, suppositions about, and facility navigating, social
fields. Yet their use in the law and society context to explain the
gap between the law on the books and the law in action has been
limited. We draw together Bourdieu’s and Silbey’s frameworks to
examine the relationship between cultural capital and legal con-
sciousness during people’s interactions with state authority.
4. Methodology
4.1 Study Design
As Larson argues, the law in action is inherently indetermi-
nate, and we can understand legal consciousness as the means
through which people negotiate this indeterminacy (2004). Con-
ceived this way, legal consciousness is relevant in a wide span of
situations, from housing to personal finance to travel. We use the
policing context to examine the relationship between cultural cap-
ital and law, since police–citizen interactions are a clear incarna-
tion of state authority. Police have broad investigatory discretion
(Ferguson and Bernache 2008; Harris 1994) and we want to know
how cultural capital affects people’s ability to mediate, manage,
and understand the inherent indeterminacy of interactions with
law enforcement. Specifically, we are interested in situations
where the law on the books would support and justify multiple
responses. That is, we are not interested in who chooses to violate
or resist the law; instead, we want to understand how people han-
dle legal indeterminacy in the context of state authority. Calarco
shows that children use class-based strategies to navigate situations
when teachers’ expectations or institutional rules are unclear
(2018). Ambiguous legal situations may operate similarly,
Young & Billings 39

highlighting or entrenching cultural capital disparities as part of
the production and reproduction of legal consciousness.
In the US legal system, the state confers certain rights on all
citizens, intended partly to guard against excesses of state author-
ity. We want to understand the relationship between cultural capi-
tal and legal consciousness as people mediate situations where
state authority demands something of them, on one hand, and
grants them the power to resist this demand, on the other. In the
remainder of this section, we explain our methodological
approach. In the following section, we explain our survey design.
We were initially skeptical that a survey could adequately
examine the situations in which we were interested. Indeed, as
Gomez argues, echoing McCann (1996) and Merry (1990), con-
sciousness is often more appropriately studied by qualitative
methods. Quantitative examinations are susceptible to the kinds
of “linear, instrumental conceptions of causality” (McCann 1996:
460) against which Silbey cautions. Moreover, a series of naturalis-
tic observations would allow observation of how people act in real-
time police–citizen encounters.
Nonetheless, for the phenomena in which we are interested,
naturalistic observations have significant downsides. Most impor-
tantly, case law assumes that people decline to assert constitutional
rights because they lack knowledge about those rights. But by
using vignettes, we could inform respondents of the rights they
possessed, ensuring that differential rates of assertion would not
be caused by differences in knowledge. Additionally, in naturalistic
settings, suspects are sometimes guilty of crimes, and their actions
may be motivated by a desire to conceal illegal behavior. In an
ethnography of police–citizen interactions, there is no way to
know if a refusal to consent to a search stems from a desire to
hide wrongdoing. By contrast, a vignette study allowed us to craft
scenarios where respondents were factually innocent.
We designed the survey as best we could to mitigate that
method’s downsides and avoid the reductionist understanding of
legal consciousness that Silbey, McCann, and others have cri-
tiqued. We are not merely interested in whether people assert a
right in a particular situation, but how their individual habitus—
“the cultural terms with which [they] understand and communi-
cate” (Silbey 2005: 359)—intersects with material inequalities.
That is, we want to understand how Bourdieu’s framework, vis-a
`-
vis Silbey, helps explain how legal consciousness is produced and
reproduced, and how it sustains hegemony. Instead of limiting
our instrument to binary responses about rights assertion, we
included open-ended items for every question, allowing us to look
at the reasoning underlying people’s decisionmaking, and to
examine their “process of meaning-making” (Gomez 2016: 1075).
40 Legal Consciousness and Cultural Capital

We operationalized cultural capital in multiple ways, looking at
parental education, which tells us something about how respondents
were raised, and current educational context, which tells us some-
thing about respondents’ acculturation within different kinds of aca-
demic institutions. We discuss these measures in more detail below.
4.2 Survey Design
We used a series of hypothetical scenarios to examine how cul-
tural capital affects individuals’ reactions to legal indeterminacy,
which is an approach used to examine cultural capital in other
contexts (e.g., Calarco 2018). The survey first presented five
vignettes in the second-person point of view. Each question
described a situation where respondents were being investigated
by police, were innocent of wrongdoing, and knew they possessed
a particular right. They were asked whether they would assert the
right. For example, the first vignette read:
One day before you leave for work, an officer knocks on your
door and says that there have been drug sales reported on your
block. He says you don’t have to let him in, but that he’s checking
the homes in the suspected area, and that it will only take
20 minutes. You are already late for an important meeting. You
have nothing illegal in your house. Do you let the officer search?
The other vignettes gave respondents similar opportunities to
assert rights.
1
Questions were pre-tested to ensure clarity, written
1
The other four vignettes read:
(2) The company you work for is being investigated, and a few people, including you
and your boss, are arrested at work. The police take you to the station, read you your rights,
and start asking questions. You’re 100% sure that you have not done anything wrong. You
have the right to remain silent if you wish. Do you answer the police’s questions?
(3) A friend asks you if you’ll give one of her friends, Ben, a ride to work. You’ve
never met Ben, but you agree. You pick Ben up, and a few minutes later, he slips some-
thing into his pocket that you are sure is marijuana. He looks at you and says, “It’s no big
deal.” Distracted, you run a red light and are pulled over by a police officer, who asks
you both to step out of the vehicle. Before Ben gets out, he tosses the marijuana under
your seat. The officer writes you a ticket, then asks whether she can search your car. You
know the drugs are under your seat, and you don’t trust Ben to tell the truth. You have
the right to refuse. Do you let the officer search?
(4) You’re taking a bus trip with friends, and you’re using a duffel bag to carry your
things. After an hour, the driver stops the bus and two policemen in uniforms get on. They
announce that they want to conduct a search. To your surprise, one of the officers walks
up to you and asks to look in your bag. You have some very embarrassing items inside, but
nothing illegal. You don’t want your friends, or a bus full of strangers, to see what’s inside.
You know you have the right to say no. Do you allow the cop to search your bag?
(5) One morning, police knock on your door and tell you that they are investigating a
robbery that happened the night before. The same kind of car you own was seen driving
away from the scene, and they are questioning a few people in the area who drive that
kind of car. You were home alone all night, watching television. Do you ask for a lawyer
before answering their questions?
Young & Billings 41

to encompass settled issues in constitutional criminal procedure,
and phrased in both positive and negative forms (where a “yes” or
a “no” might denote refusal) to ensure that sentence construction
did not bias responses. After each item, respondents were asked,
“Why or why not?” and given space to write an explanation. At
the end of the survey, respondents answered a demographic
inventory that included race, gender, and parents’ or guardians’
educational attainment.
This design has at least two drawbacks. First, there is no way
to know whether someone would respond to a police officer in a
vignette the same way she would respond to a police officer at her
door. Such is an inherent limitation of vignette studies. Nonethe-
less, response patterns tell us something about the thought pro-
cesses that underlie people’s orientations toward the topics the
vignettes address. Second, Silbey advises that in studying legal
consciousness, it is advisable to ask questions with a “legal probe”
to get at subterranean beliefs about law (Silbey 2005: 355–57). For
example, in a study of legal consciousness and housing, it might
be more useful to ask, “What would you do if your landlord asked
you to leave your apartment?” than to ask, “Would you call a law-
yer if your landlord asked you to leave your apartment?” The lat-
ter invokes law directly, missing the chance to learn whether a
respondent understands the scenario as legal. Our scenarios’ dis-
cussion of “legal rights” frames the issues as per se legal. How-
ever, particularly since police–citizen encounters already invoke
legality, we decided that the advantage of controlling respondents’
rights knowledge outweighed the disadvantage of making the sit-
uations seem more “legal.” We also invited respondents to explain
their reasoning without the constraint of pre-determined categori-
cal responses; this way, they could give legal or nonlegal justifica-
tions. These downsides underscore the importance of multiple
approaches to legal consciousness. As we discuss herein, alterna-
tive methods could enable the discovery of more emergent forms
of legal beliefs and law-related reasoning.
4.3 Sample
Participants included students from two academic institutions
in 2008: undergraduates from a high-status, private research uni-
versity (n= 108) and students at a community college ranked in
the bottom quartile of the state’s community colleges (n= 247).
After securing permission from instructors, researchers distrib-
uted surveys in introductory social sciences and humanities
courses that filled general education requirements. Participation
was voluntary and no course credit or compensation was given.
42 Legal Consciousness and Cultural Capital

Presumably since hard copies of the survey were distributed dur-
ing class time, the response rate was 100%.
2
Our two-pronged measure of cultural capital allows us to cap-
ture a more complete picture of respondents’ cultural capital than
survey designs typically encompass. The first measure is which of
the institutions a respondent attended. Enrollment in the commu-
nity college requires a limited amount of social, cultural, and
financial capital. Nor is that institution a “feeder” to four-year col-
leges. By contrast, enrollment in the private university is highly
competitive, requiring numerous essays, high test scores, and rec-
ommendation letters. Within higher education, the two schools
are at opposite ends of the status spectrum. Our second measure
of respondents’ cultural capital is their parents’ or guardians’ edu-
cation. Numerous social scientists use parental education as a
proxy for social class because it tracks with material and
knowledge-based resources in a person’s upbringing (Lareau
2011; Merry 1990; Morrill et al. 2010).
Our analysis focuses on two sub-groups within the respondent
pool: those with the lowest amount of cultural capital (community
college students without a parent or guardian who had attended
college) and those with the highest amount of cultural capital
(elite university students with two parents or guardians holding
college degrees). The rest of our respondents possess various
amounts of cultural capital along these measures (e.g., a first-
generation college student attending the elite university or a com-
munity college student whose parents attended college), but for
purposes of our analysis we are interested in the extremes of the
cultural capital spectrum insofar as it can be represented within
our data. To operationalize cultural capital’s relationship to legal
consciousness as robustly as possible, we compare these two
groups.
Note, too, that our respondents all possess at least modest
amounts of cultural capital relative to the US population. The
pursuit of higher education at any institution distinguishes this
sample from people who do not pursue higher education. Still,
our argument is about relative, not absolute, cultural capital.
Although our sample does not represent low cultural capital in
the US overall, the community college students whose guardians
did not attend college possess less cultural capital than students at
the elite institution whose parents both attended college. Hence,
we refer to these groups as the “limited cultural capital” and “high
cultural capital” groups, respectively.
2
Instructors reported that all students completed the survey. However, it is possible
that a few students handed back blank surveys without the instructors knowing.
Young & Billings 43

The Achilles’s heel of our cultural capital typology is its lack of
explicit engagement with race. Though we touch upon race in
our analysis, our sample size, coupled with our study design, pre-
vents us from focusing (in this stage of our work) more precisely
on the relationship between race and legal consciousness—a rela-
tionship which is crucial (Webb 2018). We made this choice for
several reasons, and not without weighing its drawbacks. First,
prior research suggests that in some ways, cultural capital mani-
fests in people’s lives similarly across race (Lareau 2002). More
importantly, a significant body of literature focuses on the
connections between criminal justice and race, while less work
focuses on the connections between criminal justice and social
class or cultural capital. We believe an explicitly Bourdieusian
framework complements extant research. Ideally, we would have
it both ways, analyzing the effects of race and class individually
and interactively by oversampling certain racial groups in each
category of respondents. Unfortunately, the limited scope of our
respondent pool prevented this. Nonetheless, given the racial
composition of our sample, our findings may be relevant to race-
related processes that underpin legal consciousness. The high cul-
tural capital group comprised 52 white respondents (68%), while
the limited cultural capital group comprised only 27 white
respondents (18%). However, both respondent pools were quite
racially diverse, and we are wary of overclaiming the significance
of our findings to the relationship between race and legal con-
sciousness. Additionally, consistent with research on social class
and police interactions (Epp et al. 2014; Smith 1986), respondents
with limited cultural capital were more likely to have previous
experience with police. Sixty-four of the 154 respondents in the
limited cultural capital group (41.56%) reported a previous police
search or arrest, compared to only 13 of 76 respondents in the
high cultural capital group (17.11%).
We used NVivo to code the limited- and high cultural capital
participants’ open-ended responses. With 230 participants in
these two groups, and five rights assertion scenarios, this
amounted to 1150 open-ended responses. Seventy-three res-
ponses were omitted, leaving 1077. To code them, we first used a
modified grounded theory approach (McDermott 2006) to open
code themes related to dispositions and attitudes about criminal
justice, police, and the legal system. We were especially attuned
to themes salient in the law and society canon, such as “lumping
it,” “perceptions of justiciability,” and “trust/distrust.” Code fami-
lies emerged as we created subcodes within general themes
(e.g., “entitlement,” “help police,” “truth-will-prevail reasoning”).
After cataloguing these subcodes, both authors independently
coded all of the qualitative data. Intercoder reliability was
44 Legal Consciousness and Cultural Capital

approximately 97%. Where our coding did not match, we com-
pared the piece of data in question to the parameters we had cre-
ated for our subcodes, then discussed it until we reached an
agreement. During the entire coding process, data were random-
ized to conceal respondents’ group membership, so that while
coding, neither of us knew which group of respondents a piece of
content belonged to.
5. Results
5.1 Rights Assertion
We find significant differences in the rates at which people
from the high- and limited cultural capital groups said they would
assert their rights. Across the items, respondents with high cul-
tural capital said that they would comply 101 times out of a possi-
ble 378 (26.7%), whereas respondents with limited cultural capital
said that they would comply 423 out of a possible 767 times
(55.1%) (missing responses are omitted). This difference between
the groups’ rates of compliance is significant (χ
2
= 82.222,
p< .0001).
However, reporting this difference is only a first step, not a
central finding about the dynamics that underpin legal conscious-
ness.
3
We are less concerned with binary outcomes than with the
social processes via which people navigate ambiguous legal situa-
tions. That is, how do people think about their decisions regarding
rights assertion? What patterns of orientations, ideas, and beliefs
characterize the habitus a person brings to these interactions?
What are the mechanisms through which that habitus becomes
relevant? We turn to respondents’ qualitative explanations to
answer these questions. Table 1 presents a summary of these chi-
square results.
5.2 Entitlement
We use the term “entitlement” to refer to expression of the
primacy of one’s own needs, rights, or desires in relation to the
objectives of law enforcement or the legal system. For example, in
explaining why she would refuse a search of her home, a respon-
dent might say, “I’m already late and my job is more important to
me than this search,” or, “I would tell the officer to come back at
some convenient time after my meeting so that he could search.”
In addition, we coded for various versions of entitlement (e.g.,
3
One of us devotes a separate piece to the legal implications of this result (Young
and Munsch 2014).
Young & Billings 45

responses that emphasized the value of a respondent’s time versus
those that emphasized constitutional rights). We also noted the
context within which entitlement arose, specifically whether a
respondent expressed entitlement in the context of complying
with a police request or in the context of refusing to comply
with one.
Members of the high cultural capital group were significantly
more likely to express entitlement at least once across their five
explanations than were members of the limited cultural capital
group. Seventy-two out of 76 high cultural capital individuals
(94.7%) expressed entitlement at least once across their answers,
compared to 131 out of 154 members (85.1%) of the limited cul-
tural capital group (χ
2
= 4.51, p= .034).
These differences are even more pronounced in within-
respondent patterns. Within-respondent frequency across a per-
son’s open-ended explanations is useful in thinking about his or her
general disposition toward rights, because we might imagine that
many people would feel entitled to assert their rights in some circum-
stances, but that it would be rarer for a person to feel an overarch-
ing sense of entitlement across different types of police–citizen
interactions. Since our vignettes span many places and circum-
stances, looking across multiple items provides a robust measure of
how entitlement contributes to the processes underlying legal con-
sciousness. First, we looked at how many people in the high cultural
capital group gave an entitlement-related justification in response
to at least two questions (64 out of 76, or 84.2%), as opposed to peo-
ple in the limited cultural capital group (72 out of 154, or 46.8%).
The difference between the two groups is statistically significant
(χ
2
=29.332,p< .0001). We then looked at how many people in
the high cultural capital group gave an entitlement-related justifica-
tion in response to at least three questions (32 out of 76, or 42.1%),
Table 1. Justifications for Rights Assertion Decisions, by Cultural Capital
Group
Theme
Limited Cultural
Capital
High Cultural
Capital Chi-Square
Entitlement 131/154 (85.1%) 72/76 (94.7%) 4.51*
Entitlement (2+ Instances) 72/154 (46.8%) 64/76 (84.2%) 29.332***
Entitlement (3+ Instances) 24/154 (15.6%) 32/76 (42.1%) 19.312***
Entitlement during Compliance 91/234 (38.9%) 15/182 (8.2%) 50.708***
Trust (Help Police) 24/154 (15.6%) 4/76 (5.3%) 53.174***
Trust (Truth Will Prevail) 114/154 (74.0%) 37/76 (48.7%) 14.379**
Distrust 87/154 (56.5%) 54/76 (71.1%) 4.554*
Futility 96/154 (62.3%) 30/76 (39.5%) 10.632**
Futility (2+ Instances) 32/154 (20.8%) 6/76 (7.9%) 6.109*
NOTES:
*p< .05.
**p< .01.
***p< .001.
46 Legal Consciousness and Cultural Capital

as opposed to people in the limited cultural capital group (24 out of
154, or 15.6%). Again, the difference between the groups is statisti-
cally significant (χ
2
= 19.312, p< .0001). These results suggest that
an abiding sense of entitlement in police–citizen interactions is
associated with cultural capital.
Next, recall that the vignettes gave respondents the option of
asserting a right or complying with a police officer’s request. We
might imagine that entitlement would be associated with rights
assertions—and indeed, this was often so—but entitlement some-
times arose in the context of compliance with a police request as
well. These responses include statements like, “I would allow the
cop to search my bag, but outside the bus” (respondent accommo-
dates police, but asks for a change in the search location) and, “I
would tell him he can come back at a more convenient time”
(respondent indicates he would accommodate police, but
expresses his immediate needs). Entitlement arose 234 times in
the limited cultural capital group and 182 times in the high cul-
tural capital group. These responses appear in the context of
compliance 91 times (38.9% of entitlement responses) in the lim-
ited cultural capital group and only 15 times (8.2% of entitlement
responses) in the high cultural capital group. This difference is
statistically significant (χ
2
= 50.708, p< .0001). It suggests that
not only do individuals with limited cultural capital evoke per-
sonal entitlement in police–citizen interactions less frequently than
individuals with high cultural capital do, but that even when peo-
ple with limited cultural capital evoke personal entitlement, they
are more likely to do so within the context of accommodating a
police request.
5.3 Trust and Distrust
We coded “trust” broadly to encompass open-ended responses
that endorsed any part of the criminal justice system as effective,
trustworthy, or moral, or which expressed a desire to assist police
or the criminal justice process (since this may connote a belief in
the system’s legitimacy, see Sunshine and Tyler 2003; Tyler et al.
1989; Tyler and Huo 2002). We use the term “trust” advisedly
here. Obviously, believing that the criminal justice system is rea-
sonably effective may not be strongly correlated with “trusting”
the police. More importantly, our data collection took place before
the killings of Trayvon Martin, Michael Brown, and Eric Garner.
The Black Lives Matter movement and the growing awareness of
police violence in the United States may have transformed the
measures we label “trust;” we are currently in the data collection
phase of a new project that tests this hypothesis. In the data we
Young & Billings 47

analyze here, two main patterns emerged in respondents’ expla-
nations within the “trust” category.
First, many respondents expressed a desire to help the police.
They indicated that they would comply with a police request
because they wanted to assist law enforcement. For example:
“Maybe my answers will give them info that will help,” or, “I want
to help the police.” The other common manifestation of trust was
the expression of faith that the criminal justice system would ulti-
mately discover the truth. For these respondents, factual inno-
cence justified cooperation. They explained their actions with
statements like, “[T]here’s nothing to be afraid of, [since] I know
that I didn’t do anything bad,” and, “I feel that if I knew I did
nothing wrong I shouldn’t need a lawyer.” Note that although we
are terming both veins of reasoning “trust,” one aligns the self
with the interests of legal authority—an active desire to assist
police—while the other evinces faith in the system’s ability to
reach a fair result. For this latter group, resisting police requests
would be tantamount to resisting discovery of the truth. These
incarnations of trust do not necessarily conflict with one another,
but nor are they identical.
Both forms of trust were more common in the limited cultural
capital group than the high cultural capital group. Among the
154 respondents with limited cultural capital, 24 (15.6%)
expressed at some point across their five explanations that they
wished to help the police, compared to 4 of the 76 respondents
with high cultural capital (5.3%). This difference is significant
(χ
2
= 53.174, p< .0001). Similarly, 114 of the 154 respondents
with limited cultural capital (74.0%) expressed a belief that if they
cooperated, the truth would prevail (i.e., innocence was sufficient
to justify compliance) at least once, compared to 37 out of
76 (48.7%) of respondents with high cultural capital. This differ-
ence is significant as well (χ
2
= 14.379, p< .001).
We also coded for expressions of distrust. Here, “distrust”
encompasses statements that criminal justice authorities may not
be trustworthy (e.g., “I don’t trust them not to try to trick me;” “I
don’t trust the police to be straight forward [sic] with me”), as well
as suggestions that authorities, ill-intentioned or not, may focus
erroneously on the respondent (e.g., “Although I am innocent,
the police might cause me to say something that sounds incrimi-
nating;” “Because once police think they’ve found the culprit it’s
hard to convince them otherwise”). We also included statements
that suggested that the truth alone might be inadequate to protect
an innocent person from criminal justice action (e.g., “Since I was
alone I have no alibi, therefore I would want a lawyer to ensure
that I do not say anything that may be seen as incriminating;” “It
is easy to get confused and say the wrong thing”). Again, we
48 Legal Consciousness and Cultural Capital

coded across all five open-ended responses. As we might expect,
some people expressed both trust and distrust at various points in
the surveys. This apparent contradiction, which we explore in
greater depth below, reflects the textural complexity of interac-
tions with legal authority.
The frequency of responses evincing distrust differed between
the groups. Eighty-seven of the 154 respondents in the limited
cultural capital group (56.5%) expressed distrust at least once
across the five scenarios, compared to 54 out of 76 respondents in
the high cultural capital group (71.1%). This difference is statisti-
cally significant (χ
2
= 4.554, p= .033).
5.4 Futility
The code “futility” refers to explanations that asserting a right
would be useless. This category of responses explained that police
have more power than citizens, which made refusal pointless, or
that noncompliance would only lead police to conclude that the
person under investigation is guilty. For example, in response to
questions about whether to let an officer conduct a warrantless
search, answers included, “Because he is going to search the car
one way or the other,” and, “If you say no then you’re suspicious.”
Both the quantity and the content of futility responses differed
between the limited and high cultural capital groups.
First, members of the limited cultural capital group were more
likely to express futility. Ninety-six out of 154 limited cultural capi-
tal respondents (62.3%) communicated futility at least once, com-
pared to 30 out of 76 high cultural capital respondents (39.5%).
This difference is statistically significant (χ
2
=10.632,p=.001).
As we did for the entitlement responses, we tested for differ-
ences in the frequency of futility responses a person gave across
the five scenarios in order to give us a measure of a person’s over-
arching sense of futility in interactions with police. We found that
20.8% (32 out of 154) in the limited cultural capital group, com-
pared to 7.9% (6 out of 76) in the high cultural capital group,
expressed futility in at least two responses (χ
2
=6.109, p= .014).
We then compared how many people in the limited versus high
cultural capital groups gave futility justifications in at least three
responses—8 out of 154 (5.2%) compared to one out of 76 (1.3%),
respectively. This difference is not statistically significant, although
the trend is the same; a greater proportion of individuals from the
limited cultural capital group gave three or more futility responses
(χ
2
=2.05,p= .152).
In addition to these differences in the frequency of futility rea-
soning, the substantive content of this reasoning differed between
the groups. High cultural capital respondents tended to
Young & Billings 49

characterize rights assertion as “too much hassle,” and to explain
compliance as “less trouble than fighting [the officer].” That is,
even on the comparatively rare occasions that they expressed
futility in the face of police–citizen encounters, the high cultural
capital respondents framed compliance as a strategy that would
minimize trouble and inconvenience for themselves. The limited
cultural capital group’s futility responses, by contrast, rarely
expressed a similar sense of strategy or personal agency. Instead,
they said things like, “[I would allow the search] [b]ecause they
are going to [search] anyway,” and, “Because the officer is not
going to ask to search your car he is just going to do it.” These
differences were present across responses to all five scenarios. It is
also worth noting that individuals with high cultural capital did
not engage overtly in the opposite of “futility” reasoning. This
absence may indicate that they did not seriously consider the pos-
sibility that police would ignore their rights assertions.
6. Discussion
Our results point to individual and relational social processes
that shape the ways a person copes with the “inherent indetermi-
nacy of the law in action” (Silbey 2005: 360, citing Larson 2004).
Cultural capital emerges as an important structural factor that is
strongly associated with people’s negotiation of the tension
between state-conferred legal rights, on one hand, and requests
by state law enforcement authorities, on the other. Our results
point to multiple ways cultural capital is associated with the pro-
duction of legal consciousness, suggesting how differences in cul-
tural capital may accentuate and reproduce existing social
inequalities in legal situations—even those situations where peo-
ple’s knowledge of their rights and their opportunity to assert
their rights are equal across groups.
Compared to respondents with limited cultural capital, those
with high cultural capital were more likely to draw on a sense of
entitlement in thinking about how to navigate interactions with the
police. The precise content of this entitlement varied; they invoked
ideas about personal dignity, the value of their time, the urgency of
competing obligations, and their mere possession of a right. But
the common denominator was the primacy of their own need or
value over the police officer’s request. This finding aligns with
research on cultural capital in the context of educational institu-
tions. People with high cultural capital tend to have styles of
engagement that align with the norms and values of elite institu-
tions and the people who inhabit them. For example, children
from working-class families are socialized in ways that lead them to
50 Legal Consciousness and Cultural Capital

ask for teachers’ help less frequently than children from families
with more cultural capital (Calarco 2011). Similarly, undergradu-
ates from lower-income families, particularly those who attended
economically distressed high schools, are less proactive in engaging
authority figures (Jack 2016). Armstrong and Hamilton (2013) find
that students with more cultural capital employ engagement styles
that lead them to derive more institutional benefits from college.
Cultural capital helps maintain material inequality partly
because schools and teachers end up rewarding students based on
their interactions with institutions. Our results suggest that encoun-
ters with legal authorities may function in similar ways. Even
among people with full knowledge of their relevant rights and no
criminal behavior to conceal, high cultural capital is associated with
a greater sense of entitlement in people’s navigation of legal situa-
tions. The apparent absence of doubt, in the high cultural capital
group, that police will heed their rights assertions suggests that
they have a greater sense of self-efficacy in their interactions with
the law. This difference may translate into a greater sense of agency
in interactions with legal authorities. Thus, cultural capital may
represent an important constitutive source of social variation in
legal consciousness—one that deepens the gulf between the law on
the books (the ideal of equal rights) and the law in action (gross
inequalities in justice system outcomes).
While inequalities in substantive outcomes have been docu-
mented at virtually all stages of criminal justice processing, we
know much less about how beliefs, predilections, navigational ten-
dencies, and other aspects of legal consciousness might influence,
exacerbate, or mediate inequalities. As one of us has theorized,
cultural capital may be associated with rights consciousness in
ways that perpetuate and deepen inequalities in criminal justice
processing (Young 2009; Young and Munsch 2014). More
recently, Clair gives an excellent account of how early encounters
with police shape attitudes and experiences, pointing out that
“While theories of social disorganization and of discrimination are
important and likely account for a considerable proportion of
arrest disparities, neither considers the interactional processes
between alleged offenders and legal authorities” (2018a: 113).
Clair observes criminal defendants’ meetings with their attorneys
and points to key differences in interaction styles; defendants with
more cultural capital interact in ways that facilitate effective advo-
cacy (2018b). Our results suggest analogous differences in peo-
ple’s interactions with police. People with less cultural capital may
hesitate to use state-granted legal entitlements to shield their
activity from police officers. Socially rooted variations in legal con-
sciousness are associated with different ways people navigate the
tension between state-conferred rights and the immediate
Young & Billings 51

demands of state law enforcement authority. These differences
may render people with limited cultural capital more vulnerable
to investigative authority even absent any disparities in rights
knowledge, police behavior, or amount of criminal culpability.
The processes we identify exist alongside numerous other
mechanisms that contribute to disparate outcomes, including
overt discrimination (Legewie 2016; Morrow, White, and Fradella
2017; Nascimento 2017) and implicit bias (Correll et al. 2007;
Eberhardt et al. 2004; Plant and Peruche 2005). We strongly
doubt that people with more cultural capital are simply more
“adept” at interacting with police (as researchers have suggested
in the health care contexts [see Shim 2010]). Yes, people with lim-
ited cultural capital may think about their rights in ways that lead
them not to assert these rights. But police may also be less likely
to heed, or more likely to punish, some people’s assertions than
others’. Armenta’s (2017) ethnographic account of a roadside stop
exemplifies how this might unfold. She describes being pulled
over, refusing a search, and being made to wait on a very hot day.
While she was protected by her citizenship, valid driver’s license,
and unaccented English, she notes that the “system of laws, insti-
tutional policies, and bureaucratic practices ensures that these
types of police encounters unfold differently for residents who do
not have the benefit of legal presence,” such as undocumented
immigrants (2017: 153). Armenta describes the police’s use of
bureaucratic loopholes to justify their search of her car after she
asserted her rights. Her description echoes explanations from our
limited cultural capital group—for example, “[The officer] is
going to search the car one way or the other.” In many situations,
it may be rational for people with limited cultural capital not to
bring a salient sense of entitlement into police–citizen interactions.
After all, extensive literature documents differences in police
treatment on the basis of race (Epp et al. 2014; Goff et al. 2016;
Zimring 2017) and class (Epp et al. 2014; Smith 1986).
On the rare occasions that respondents with high cultural cap-
ital expressed futility, they framed it as a “decision” or “strategy”
that emphasized their own agency—for example, explaining that
assertion was “too much hassle,” or that they were engaging in a
longer-term strategy to reduce the chance of future entangle-
ment. They framed compliance as a choice, while respondents
with limited cultural capital emphasized their lack of agency rela-
tive to police.
More work is needed to understand the root of this greater
sense of self-efficacy among people with high cultural capital.
They may see themselves as occupying a higher status position
than police, which may lead them not to consider the possibility
that police would steamroll over their rights assertions—a
52 Legal Consciousness and Cultural Capital

possibility very much contemplated by the limited cultural capital
group. Even if respondents with high cultural capital see rights
assertion as a risk, they implicitly know that if something goes
awry in the interaction, they will have the resources (familial,
financial) to take care of the problem. Nothing too bad, they may
assume, is likely to happen to them. Put differently, even if being
pulled over makes everyone feel like they are walking across a
tightrope, people with more cultural capital can walk the tight-
rope more boldly because they assume there is a net beneath
them. Cultural capital’s associations with different patterns in legal
consciousness may be due to an analogous—perhaps quite
unconscious—thought process.
In a sense, our findings about futility might seem in tension
with our findings about expressions of trust and distrust.
Although people with limited cultural capital were more likely to
believe that asserting rights was futile, they were also more likely
to believe that factual innocence would lead to a just result.
Assuming police might ignore your rights assertion seems to sug-
gest a belief in the system’s illegitimacy, whereas assuming that
the criminal justice system will ultimately find the truth seems to
suggest a belief in its legitimacy. Yet, the common denominator
between these results is a perceived lack of individual agency in
navigating the system. In both cases, respondents’ reasoning
(“There’s nothing I can do to stop the police from searching me,”
and, “I didn’t do anything wrong so I won’t be found guilty of a
crime”) suggests their legal consciousness is oriented not toward
an individual sense of empowerment in navigating the legal sys-
tem, but toward a lack of individual agency—to being subject to
the system. It is not that people with limited cultural capital feel
helpless, but rather that, unlike those with high cultural capital,
they do not assume the system will prioritize their needs, so they
act accordingly. This interpretation is consistent with other
research on cultural capital that suggests that early socialization
cultivates interpersonal styles and dispositions that influence inter-
actions with authority, and that these styles are tied to differences
in cultural capital (Lareau 2011). People from modest social class
backgrounds are more likely to believe in an external, versus
internal, locus of control (Franklin 1963; Lachman and Weaver
1998; Lefcourt 2014; Nelsen and Frost 1971). In other words,
people who hail from privileged classes perceive more control
over their life outcomes than people who hail from less privileged
classes. Working-class strategies of deference alongside beliefs in
an external locus of control may contribute to the distinction
between perceiving oneself as agentically navigating the legal sys-
tem versus navigating the legal system as best you can while
assuming that you are a subject of it. Repeated frustrating,
Young & Billings 53

discouraging, or unfruitful interactions with bureaucracies may,
over time, whittle down a person’s sense that he or she has a
meaningful degree of agency (Edin and Schaefer 2015; Feeley
1979; Felstiner et al. 1980; Galanter 1974; Levine 2013). Relat-
edly, modest social class backgrounds have long been associated
with interaction styles that law enforcement authorities read as
threatening, which further inscribes inequality into these interac-
tions (Piliavin and Briar 1964).
The access to justice literature details a similar process. Expe-
rience with the law influences “decisions about what options to
explore and to pursue” in remedying justiciable problems
(Sandefur 2007: 1196). Sandefur’s discussion of how people
approach legal problems parallels Bourdieu’s definition of
habitus—a set of dispositions providing blueprints for possible
behavioral responses to social situations. A person learns what is
possible and what is not, and puts this learning into practice in
interactions. Dispositions are cultivated partly through experi-
ence. Cultural capital is associated with patterns in people’s per-
sonal histories of interaction with authority figures and
institutions. In Ain’t No Trust, Levine (2013) documents low-
income mothers’ widespread distrust across numerous contexts:
romantic relationships, social networks with family and friends,
and formal institutions. These women told stories of how distrust
shaped their behaviors, beliefs, and interactions with formal and
informal institutions. They had “placed trust in others whom they
later deemed unworthy of that trust” (2013: 192), which then cul-
tivated more skeptical dispositions. These processes echo the psy-
chological concept of learned helplessness (Abramson et al. 1978;
Maier and Seligman 1976; Peterson et al. 1993; Wang et al. 2017).
Exposed to events beyond their control, people learn it is rational
to separate actions from outcomes. If people with limited cultural
capital find that their actions do not help determine outcomes of
police–citizen interactions, futility is a reasonable response. Addi-
tionally, hearing accounts of family members’ and friends’ deal-
ings with police—accounts that vary greatly across background
(e.g., Epp et al. 2014)—may shape the questions, fears, and
assumptions a person brings into interactions with police. And
while a sense of futility may sometimes worsen outcomes by
preventing people from engaging in potentially beneficial self-
advocacy, it can also be highly functional, realistic, and adaptive.
Levine’s findings resonate here as well; low-income mothers’ dis-
trust sometimes acted as a protective shield, and other times
prevented them from accessing beneficial childcare and employ-
ment opportunities. As Hardin writes, “Trust is functional in a
world in which trust pays off; distrust is functional in a world in
which trust does not pay off ” (2002: 96).
54 Legal Consciousness and Cultural Capital

At first blink, our findings may seem in tension with naturalis-
tic data on police–citizen encounters (e.g., Goffman 2014; Rios
2011; Stuart 2016) suggesting that people with limited cultural
capital have antagonistic, untrusting relationships with police offi-
cers. They may run away, evade surveillance, fight back, and so
on. But while these actions certainly entail a form of agency, they
do not entail agency in navigating legal bureaucracies, particularly
not in the terms those bureaucracies dictate. They are more about
avoiding these bureaucracies altogether. The assertion of legal
rights would, in our view, not necessarily be correlated with resis-
tance or antagonism toward police. Theoretically, it could be, but
only if a person believes that using his or her constitutional rights
will be effective—a possibility on which our findings about futility
shed doubt. Indeed, in a sense, rights assertion can be understood
as a form of trust or endorsement in the legal system; if a person
anticipates that police officers will respect her assertion, she will
be more likely to assert a right, which was the pattern among the
high cultural capital respondents in our sample. Yet, as we discuss
above, other forms of trust, such as an interest in helping the
police, were more prevalent among people with limited cultural
capital. These results underscore the complexity of trust and dis-
trust, pointing to the need for future research to disentangle dif-
ferent forms of these concepts, as well as the situational factors
associated with different forms, in people’s interaction with legal
authorities.
Apparent acquiescence or deference to system authority may
also reflect broader cultural differences between people from dif-
ferent backgrounds. For example, working-class people are more
likely to perform prosocial behaviors (Piff et al. 2010), focus on
others’ needs (Kraus et al. 2012; Kraus and Keltner 2009), and
experience a more acute physiological reaction in response to
others’ distress (Stellar et al. 2012). Working class individuals’
more collective orientation may help explain why those with lim-
ited cultural capital were more likely to express a desire to help
the police, even alongside their cynicism about the likelihood that
police would honor their rights assertions. Indeed, this group
may view compliance as helpful to society, while self-orientation
among people with high cultural capital may lead them to priori-
tize their own needs or convenience over a more abstract greater
good. As we have described, the high cultural capital group was
more keenly self-interested, taking steps to ensure that nothing
untoward happened to them personally. They approached police–
citizen interactions in ways that let them hedge their bets and
advocate for their needs. That is, what we coded as “distrust” may
have more to do with risk aversion and self-preservation than a
feeling that the system cannot be relied upon.
Young & Billings 55

Silbey writes that legal consciousness is “a tool for examining
the mutually constitutive relationship” between law in action and
law on the books (2005: 359). The persistence of the gap between
the two, she says, “provides an alibi for the particular form that
the gap takes” (2005: 360). Our results point to a need for greater
focus on how cultural capital contributes to the persistence and
texture of that gap. Doing so may help us understand the bureau-
cratic complexity of criminal justice processing (Feeley 1979;
Stuntz 2011) and criminal justice processing’s increasingly well-
documented function as a managerial tool of governance (Kohler-
Haussman 2018; Natapoff 2012; Simon 2012), as well as the
contingent, relational social processes that underpin legal con-
sciousness (Young 2014) and render people with limited cultural
capital more vulnerable to arrest and prosecution. The patterns
we have described in people’s navigation of police–citizen interac-
tions exemplify the ways that the “cultural terms of our under-
standing” (Silbey 2005: 359) come to constitute, and to be
constituted by, our legal consciousness.
7. Conclusion
Our data suggest that legal consciousness may be an important
a mechanism through which observed inequalities are created. As a
starting point for investigation into the relationship between cul-
tural capital and legal consciousness, we sought to understand how
a two-part measure of cultural capital is associated with the ways
people navigate situations that require them to mediate between
state-conferred rights, on one hand, and requests from state
authority, on the other. We analyzed open-ended responses to
rights assertion scenarios, which provide a window into the individ-
ual and relational processes that shape legal consciousness. We
identify several mechanisms that underpin the relationship
between legal consciousness and rights assertion. Centrally, we
found that high cultural capital is associated with a greater sense of
agency or self-efficacy in police–citizen interactions. This finding
echoes the literature on cultural capital in the health care and edu-
cation contexts and may point to a more general pattern within the
juridical field. People with high cultural capital brought a more
salient sense of entitlement to the vignettes we presented, under-
standing their own needs and desires as paramount in navigating
ambiguous interactions with state authority. Our findings under-
score the complexity of the relationship between legal conscious-
ness and cultural capital, which has generative implications for
multiple areas of sociolegal research.
56 Legal Consciousness and Cultural Capital

First, our results offer a new vein of research for law and soci-
ety scholars who seek to understand how people think about law
and legality, and in particular the social and structural factors
associated with differences in how legal beliefs, attitudes, and ori-
entations are produced and experienced. This work is often ter-
med “legal consciousness,” but relates as well to other work on
everyday experiences of legality, such as legal cynicism and legal
pluralism. What can the relationship between cultural capital and
legal consciousness tell us about how legal consciousness under-
pins “in Bourdieu’s term, [people’s] dispositions” (Silbey 2005:
357)? In addition to examining how intersectional factors such as
race and gender shape the processes we have described, future
studies might turn to ethnographic methods to more effectively
interrogate the relationship between legal consciousness and cul-
tural capital. Bourdieu used survey data in Distinction (1984), but
returned to naturalistic observations to more fully capture cultural
capital’s embodiment. This approach facilitates discovery of “sub-
terranean” patterns in legal consciousness. We might imagine
naturalistic observations of criminal booking procedures, real-time
searches, or other points of contact between everyday people and
justice professionals. This type of work could get at the legal con-
sciousness surrounding justice system contact more holistically.
Ethnographic studies of police and the policed, though they
rarely contain an explicit focus on legal consciousness, underscore
this possibility (Anderson 1990; Rios 2011; Goffman 2014;
Stuart 2016 — to name a few). Qualitative, observational, and lon-
gitudinal data (see, e.g., Lareau 2015) can even more effectively
examine the social mechanisms that underlie variations in legal
consciousness.
Second, and more specifically in the policing context, future
research might probe the relationship between race, cultural capi-
tal, and the production of legal consciousness. Procedural justice
strikes us as a potentially generative intersection, with both theo-
retical and normative implications (Tyler 2004; Sunshine and
Tyler 2003). How might a better understanding of cultural capital
inform community policing initiatives grounded in the procedural
justice and legitimacy research traditions? Building on the
research of Young (2009; Young and Munsch 2014) and Clair
(2018a; 2018b), as well as on recent ethnographic work on polic-
ing (e.g., Stuart 2016), cultural capital may shape criminal justice
experiences in ways that give rise to differing conceptions of law
enforcement’s legitimacy. For example, we might ask when per-
ceptions of legitimacy hinge on the kinds of dispositions and inter-
action styles shaped by cultural capital—or an interaction between
race, gender, and cultural capital—particularly for people who are
frequent targets of police action, such as young black men. Our
Young & Billings 57

finding that some people expressed both trust and distrust of state
authority at various points in their responses bespeaks a complex,
textured relationship between trust and legal consciousness. What
implications does cultural capital have for the way procedural jus-
tice functions from one context to the next, and what can these
intersituational differences tell us about legal consciousness? Does
cultural capital interact with race differently in the criminal justice
context than it does in, say, the education or health care contexts?
Our findings also have implications for the growing access to
justice research, most of which is done in the civil realm. For
example, justiciable decision-making points such as receiving an
eviction notice, seeking a divorce, experiencing credit problems,
or contemplating filing a claim with the Better Business Bureau
all have legal consciousness and rights consciousness implications.
If we are correct that the relationship between cultural capital and
legal consciousness is an important source of social variation in
the ways people understand and navigate their legal problems,
this finding points to useful directions in access to justice reform.
Understanding how different people experience justiciable
problems—and particularly understanding the social mechanisms
that give rise to these different experiences—is key to figuring out
what Sandefur refers to as “the fundamental, and rightly con-
tested, question of what ‘lawful resolution’ means” (2019). This
approach centers everyday people’s experiences of their prob-
lems, rather than the technical legal components of these prob-
lems. It requires understanding that just as lawyer unavailability is
not the primary cause of the access to justice crisis (Sandefur
2014), increasing the provision of lawyer services is unlikely to be
its most effective solution (see Sandefur 2010; 2019; Hagan 2019;
Pleasance and Balmer 2019). Bringing the cultural capital and
legal consciousness literatures into conversation with the access to
justice work has the potential to provide new understandings of
how social experience influences the ways people think about
problems they face, which in turn may open new avenues for civil
justice remedies.
Finally, by identifying a set of social processes that perpetuate
legal hegemony, our findings challenge assumptions about human
behavior that have long been enshrined in US constitutional crim-
inal procedure doctrine. In theory, all citizens are granted identi-
cal rights that they can use in interactions with legal authorities.
However, even when knowledge of a right and the opportunity to
assert that right are equally distributed, meaningful constitutional
access to that right remains woefully inequitable. Putting the onus
on individuals to exercise their rights in encounters with state
authority allows the system to pretend that everyone has the same
meaningful access to these rights. It reinscribes inequality,
58 Legal Consciousness and Cultural Capital

contributing to a collective plausible deniability about equal justice
and perpetuating a constitutional mythology that cornerstones of
modern criminal procedure (e.g., the “consent” search; the “free
to leave” doctrine) ensure constitutional equality. As Silbey writes,
the gap between law in action and law on the books “is infinitely
useful to the powerful, because its persistence provides an alibi
for the particular form that the gap takes” (Silbey 2005: 359–60).
If the state wants to confer substantively identical rights upon all
its citizens, it cannot pretend that all of its citizens are identically
situated. Requiring a citizen to assert a right instead of making
that right self-executing results in the reproduction of social
inequality. It allows disparities in cultural capital to widen two cru-
cial gaps in American law—the one between the haves and the
have nots, and the one between the law in action and the law on
the books.
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Brendlin v. California, 551 U. S. 249 (2007).
Salinas v. Texas, 570 U. S. 178 (2013).
United States v. Drayton, 536 U. S. 194 (2002).
Kathryne M. Young, JD, PhD is Assistant Professor of Sociology at the
University of Massachusetts, Amherst, where she is also affiliated with the
Center for Justice, Law, and Societies. Young studies legal consciousness,
constitutional criminal procedure, parole hearings, access to justice, and
legal education. Her first book was How to Be Sort of Happy in Law
School (Stanford University Press, 2018), and her current work examines
the connections between legal consciousness, cultural capital, and access to
justice. www.kathrynemyoung.com.
64 Legal Consciousness and Cultural Capital

Katie R. Billings is a graduate student in the Sociology Department at
the University of Massachusetts, Amherst, where she has won numerous
awards for her research and teaching. In addition to her interests in legal
consciousness, Billings studies the relationship between cultural capital
and mental health. Her dissertation research is a mixed methods study of
suicide and includes in-depth interviews with suicide survivors.
Young & Billings 65