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Imagined Law: "We followed the law word by word!"

Prof. Michael Birnhack, Tel Aviv University, Faculty of Law 
Dr. Lotem Perry-Hazan University of Haifa, Faculty of Education

Our teachers in school, back in the 1970s and 1980s used to tell us that they had eyes in their backs, and that they could see us when they were writing on the blackboard.  That was the old school way of trying to achieve discipline, by creating a sense of supervision.  Discipline was achieved also through the schools’ architecture, typically with the principal’s office overlooking the schoolyard.  And there was education too.  Our teachers taught us right from wrong.  Increasingly, the new school strives to achieve discipline and order by using technological means.  Today, in many schools in western democracies, we find a host of technologies, typically Closed Circuit TV (CCTV) systems, and in American schools, one can find metal detectors, biometric identification and other technologies.  Schools introduce these technologies in order to achieve security, safety, efficiency and a host of other fine goals.  But they also produce supervision and surveillance.  We are intrigued by the introduction of such surveillance technologies into the educational setting.  The premise of our study is that a school that installed a surveillance technology is not just the same school with another technical element.  It is a different school.  The technology is not technical; it is normative and has an effect.

Our project explores the introduction of surveillance technologies into schools.  Our case study is the introduction of CCTV systems in Israeli schools.  This is the first surveillance technology that is installed in Israeli schools, and rapidly so.  We began with interviewing school principals, city officials, and have since continued with interviewing teachers, primary school children and high school students.  We approached the principals with a set of questions borrowed from administrative law: we wanted to know who initiated the decision, who made it, did the decision makers consult others, which considerations did they take into account, and which did they ignore. 



One of the first principals we interviewed was highly confident.  She firmly tapped the table and replied: “I followed the law, word by word”.  She referred to a binding regulation of the Ministry of Education.  We let her continue for a while, but then had to interrupt.  There is no such law, we told her.  It was an awkward moment.  The principal called her secretary, and asked to see the folder on CCTV.  The secretary indeed brought such a folder.  It had “CCTV” in capital letters on its cover. The principal opened it.  It was empty.
Other principals then offered similar answers.  Of course, we double-checked ourselves: perhaps there was a regulation that we missed.  Perhaps an unofficial draft circulated or leaked.  Nothing.  We framed the findings within Lauren Edelman’s theory of the endogeneity of the law, and added our findings: imagined law.  Some principals imagined a law, and acted upon it.  It was not merely a mistake about the content of an existing law.  They self-convinced themselves that there was a binding legal rule, and they acted upon it.  The imagined laws, by the way, differed from one principal to another.  The contents of the imagined law seems to be their own beliefs and convictions, projected onto this non-existing rule. 
We find this autosuggestion fascinating: can the law be made out of thin air?  How powerful is such an imagined law?  Are there other such laws in our lives, beyond the school environment?  The school setting provided us with a real case study of an imagined law.  A teaching moment for all lawmakers.

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