Forceful Self‐Help and Private Voice: How Schauer and McAdams Exaggerate a State's Ability to Monopolize Violence and Expression

Frederick Schauer's The Force of Law (2015) and Richard McAdams's The Expressive Powers of Law (2015) are noteworthy contributions. However, both authors exaggerate the importance of law, as opposed to other means of social control. Schauer largely omits the role that self‐help measures, ranging from negative gossip to violent self‐defense, play in deterring misconduct. Contrary to Max Weber, the state in practice cannot monopolize the legitimate use of physical force. McAdams valuably analyzes law's potentially expressive effects. He might have devoted more attention, however, to identifying the contexts in which state speech tends to be more salient than private speech, such as a statement by the pope or another esteemed private pundit.     

Schauer's Anti‐Essentialism

In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties (a position he calls legal anti‐essentialism), and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti‐essentialism is a defensible position fails, because his one main argument (the cognitive science argument) is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument (the family resemblance argument) is false.     

Basketball in the Key of Law: The Significance of Disputing in Pick‐Up Basketball

While the conception of law as a constructive and constitutive force is often stated, we have relatively few concrete and grounded case studies showing precisely where and how social actors construct the meaning of their engagements through the invocation of legality. Drawing on Erving Goffman's Frame Analysis (1974), I use the concept of “keying” to articulate how basketball players in informal “pick‐up” games transform the meaning of their activity through disputing. By playing in a legalistic way, players constitute the game as “real” and “serious” rather than “mere play.” The analysis tracks basketball players in the heat of action as they perceive the game, call rule violations, contest those violations, and ultimately give up. Players organize each phase of the dispute's natural history in the “key of law” by constructing and comparing cases, invoking and interpreting rules, setting precedent, arguing over procedure, and proposing solutions. Through these practices, players infuse the game with rich meaning and generate the motivational context demanding that the game be treated as significant. This analysis contributes to an understanding of legal ontology that envisions law's essence as potentiating rather than repairing normative social life.     

Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co‐Production of Law and Science

This article combines Monahan and Walker's classification of social facts, social authority, and social frameworks with political‐institutionalism's view of law and science as competing institutional logics to explain how, and with what consequences, employment discrimination law and industrial‐organizational (I‐O) psychology became co‐produced. When social science is incorporated into enforcement of legislative law as social authority—rationale for judicial rule making—law's institutional logic of relying on precedent and reasoning by analogy ensures that social science will have ongoing influence on law's development. By helping set research agendas and providing new professional opportunities, institutionalized legal doctrine shapes social science knowledge. But because of differences in institutional logic, wherein legal cumulation is backward looking whereas scientific cumulation is forward looking, co‐production of law and science may produce institutional mismatch between legal doctrine and scientific knowledge.     

Work Rules: How International NGOs Build Law in War‐Torn Societies

Drawing on socio‐legal literature and fieldwork in South Sudan, this article argues that international aid groups operating in conflict settings create and impose a rules‐based order on the local people they hire and on the domestic organizations they fund. Civil society actors in these places experience law's soft power through their daily, tangible, and mundane contact with aid agencies. As employees they are subject to contracts and other rules of employment, work under management and finance teams, document routine activity, and abide by organizational constitutions. In analyzing how South Sudanese activists confront, understand, conform to, or resist these externally imposed legal techniques and workplace practices, this article decenters state institutions as sites for understanding law's power and exposes how aid organizations themselves become arenas of significant legal and political struggle in war‐torn societies.     

Schauer on Coercion,Acceptance, and Schizophrenia

This article provides a comment on The Force of Law (Schauer 2015), which is Schauer's new and illuminating contribution to the place of law in our societies and in our lives. It constitutes a strong defence of the importance of coercion in law. First, I consider cases where the law is not able to motivate human behaviour adequately, in order to show that legal coercion is not always justified. Second, I examine the Rawlsian distinction between the ideal and the nonideal theory and its application to the theory of law. Third, I tentatively argue that coercion has no place in ideal theory, but a core place in nonideal theory. In this way, it may be plausible to reconstruct the motivation to accept the law, at least when the law is normatively justified.     

Seeking Shelter in Personal Insolvency Law: Recession,Eviction, and Bankruptcy's Social Safety Net

Many legal systems understand consumer insolvency laws as social insurance, providing relief and a ‘fresh start’ to over‐indebted households who fall through gaps in the social safety net. Personal insolvency law in England and Wales in practice functions similarly, but in terms of legal principle and policy is ambivalent – sometimes emphasizing household debt relief, other times creditor wealth maximization. This article assesses, in the context of novel debt problems brought to prominence by recession and austerity, the extent to which the law has embraced personal insolvency's social insurance function. The discussion is framed particularly by the escalating United Kingdom housing crisis and the case of Places for People v. Sharples concerning consumer bankruptcy's (non)protection of debtors from eviction. The analysis illustrates how tensions between conceptual understandings and personal insolvency law's practical operation undermine the law's ability to fulfil its potential to produce positive policy responses to contemporary socio‐economic challenges.     

When Is a Regime Not a Legal System? Alexy on Moral Correctness and Social Efficacy

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness.     

Coordinating in the Shadow of the Law: Two Contextualized Tests of the Focal Point Theory of Legal Compliance

In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of legal compliance, the law's articulation of a behavior can sometimes create self‐fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated that a mandatory legal rule operating in a property dispute influenced compliance only when there was an element of coordination. Experiment 2 demonstrated that a default rule in a contract negotiation acted as a focal point for coordinating negotiation decisions. Both experiments confirm that legal rules can create a focal point around which people tend to coordinate.     

“Legality with a Vengeance”: Reclaiming Distribution for Sociolegal Studies

The law and society community has argued for decades for an expansive understanding of what counts as “law.” But a content analysis of articles published in the Law & Society Review from its 1966 founding to the present finds that since the 1970s, the law and society community has focused its attention on laws in which the state regulates behavior, and largely ignored laws in which the state distributes resources, goods, and services. Why did socio‐legal scholars avoid studying how laws determine access to such things as health, wealth, housing, education, and food? We find that socio‐legal scholarship has always used “law on the books” as a starting point for analyses (often to identify departures in “law in action”) without ever offering a programmatic vision for how law might ameliorate economic inequality. As a result, when social welfare laws on the books began disappearing, socio‐legal scholarship drifted away from studying law's role in creating, sustaining, and reinforcing economic inequality. We argue that socio‐legal scholarship offers a wide range of analytical tools that could make important contributions to our understanding of social welfare provision.     

The Inevitability and Indeterminacy of Game‐Theoretic Accounts of Legal Order

How is legal order possible? Why do people comply with law when it prevents them from doing what they think best? Two important books show how these questions can—and from some methodological perspectives must—be answered in the form of game‐theoretic accounts that show how legal compliance can be compatible with the broad self‐interest of officials and citizens. Unfortunately, however, these books also serve to demonstrate that game‐theoretic accounts along these lines lack the resources to explain how real‐world legal systems emerge and evolve or the various institutional shapes these systems take. The fundamental limitation of game theory, in this context and more generally, is its inability to predict or explain the size and shape of cooperative equilibria.     

The Emergence of Penal Extremism in California: A Dynamic View of Institutional Structures and Political Processes

This article examines legal and political developments in California in the 1970s and early 1980s that led to extreme changes in the state's use of imprisonment. It uses historical research methods to illustrate how institutional and political processes interacted in dynamic ways that continuously unsettled and reshaped the crime policy field. It examines crime policy developments before and after the passage of the state's determinate sentencing law to highlight the law's long‐term political implications and to illustrate how it benefited interest groups pushing for harsher punishment. It emphasizes the role executives played in shaping these changes, and how the law's significance was as much political as legal because it transformed the institutional logics that structured criminal lawmaking. These changes, long sought by the law enforcement lobby, facilitated crime's politicization and ushered in a new era of frenetic and punitive changes in criminal law and punishment. This new context benefited politicians who supported extreme responses to crime and exposed the crime policy process to heightened degrees of popular scrutiny. The result was a political obsession with crime that eschewed moderation and prioritized prison expansion above all else.     

Between the Law: The Unmaking of Empire and Law's Imperial Amnesia

Asian victims of Japanese imperialism have filed lawsuits against the Japanese government and corporations since the 1990s, which became prime sites for redress decades after Japan's defeat in World War II. As this ethnography demonstrates, this process paradoxically exposes a legal lacuna within this emergent transnational legal space, with plaintiffs effectively caught between the law, instead of standing before the law. Exploring this absence of law, I map out a post‐imperial legal space, created through the erasure of imperial and colonial subjects in the legal framework after empire. Between the law is an optic that makes visible uneven legal terrains that embody temporal and spatial disjuncture, rupture, and asymmetry. The role of law in post‐imperial transitions remains underexplored in literatures on transnational law, legal imperialism, postcolonialism, and transitional justice. I demonstrate how, at the intersection of law and economy, post‐imperial reckoning is emerging as a new legal frontier, putting at stake law's imperial amnesia.     

The Economic Sociology of Labour Law

Drawing on the work of Max Weber, this article considers the utility of an approach to the study of labour law, which it calls the economic sociology of labour law (ESLL). It identifies the contract for work as the key legal institution in the field, and the primary focus of scholarly analysis. Characterizing the act of contracting for work as an example of what Weber called economic social action oriented to the legal order, it proposes that Weber's notion of the labour constitution be used to map the context within which contracting for work takes place. And it argues that, in comparison to traditional socio‐legal approaches, ESLL has the significant advantage of allowing for account to be taken of the individual and commercial, as well as the social and legal, elements of contracting for work.     

Everyone Knows the Game: Legal Consciousness in the Hawaiian Cockfight

Past legal consciousness research has revealed a great deal about what individuals think and do with regard to law, but less attention has been paid to the social processes that underpin these attitudes, beliefs, and actions. This article focuses particularly on a “second‐order” layer of legal consciousness: people's perceptions about how others understand the law. Ethnographic observations and in‐depth interviews with cockfighters in rural Hawaii reveal how law enforcement practices not only affect cockfighting rituals, but are embedded within them. Police practices and informal rules work in concert to shape fighters' second‐order beliefs. These beliefs have implications for participants' understanding of central concepts, including order, disorder, and illegality. Examining legal consciousness from a second‐order perspective also underscores that notions of legitimacy are constantly created and recreated. Recognizing legitimacy's inherently relational nature helps us understand how experiences of law are synthesized into beliefs—for example, when an unusual police action directed toward a subgroup of fighters compromised the law's legitimacy for them. Foregrounding the relational nature of legal consciousness offers scholars a means to better understand and operationalize the dynamic nature of human relationships to law.     

Jurisdiction,Crime, and Development: The Impact of Public Law 280 in Indian Country

Public Law 280 transferred jurisdiction over criminal and civil matters from the federal to state governments and increased the extent of nontribal law enforcement in selected parts of Indian country. Where enacted, the law fundamentally altered the preexisting legal order. Public Law 280 thus provides a unique opportunity to study the impact of legal institutions and their change on socioeconomic outcomes. The law's controversial content has attracted interest from legal scholars. However, empirical studies of its impact are scarce and do not address the law's endogenous nature. We examine the law's impact on crime and on economic development in U.S. counties with significant American‐Indian reservation population. To address the issue of selection of areas subject to Public Law 280, our empirical strategy draws on the law's politico‐historical context. We find that the application of Public Law 280 increased crime and lowered incomes. The law's adverse impact is robust and noteworthy in magnitude.     

Consequences of Tit‐for‐Tat Enforcement: Toward a Hippocratic Principle of Regulatory Implementation

The article discusses when tit‐for‐tat enforcement, an important strategy in responsive regulation theory, may generate intended reactions in communities of regulatees. Combining insights from compliance motivation theory, responsive regulation theory, and ethnographic studies of compliance, I hypothesize that tit‐for‐tat enforcement's probability of success depends on regulators’ institutionalized capacity to promote law–morality correspondence. Building such institutionalized capacity—so‐called “embeddedness”—simultaneously increases requirements for inspectorates’ competence. This article addresses three forms of law–morality correspondence: moral support for the law's content, the legislator's authority, and harmony between legal and moral guilt criteria.     

Law and the Building Blocks of the Familiar

This article draws on the insights offered by Francesca Polletta, Calvin Morrill, and Elizabeth Chiarello in their comments on my book, Caring for Our Own: Why There Is No Political Demand for New American Social Welfare Rights ( 2014 ) to further specify the conditions that unleash the emancipatory potential of law. I argue that much of law's emancipatory power lies in its capacity to “construct anew”—to demonstrate new solutions to social problems by connecting the familiar with the strange. Drawing on the case of child care, I find that laws do not automatically provide the cultural resources to construct new claims for state intervention, but that existing laws—and the symbols, narratives, and norms that we associate with them—serve as grist for the political imagination and can be transposed to new contexts or institutions. In the absence of cultural resources in one institution (such as work), advocates can use legal discourse to strategically shift responsibility for a social problem to a new institution (such as education), opening up possibilities for new models, organizational actors, constituencies, and frames.     

Law's Strange Allure: The Power of Legal Lore beyond the Law-Politics Divide

American political culture is both seduced and repulsed by legal power, and this essay reviews Gordon Silverstein's contribution to understanding the causes and consequences of “law's allure.” Using interbranch analysis, Silverstein argues that law is dangerously alluring as a political shortcut, but ultimately he concludes that law offers no exit from “normal politics” and the hard work of “changing minds.” This essay suggests that Silverstein's framework—his dyadic focus on courts and Congress, constructive and deconstructive patterns, legal formality and normal politics—strips law from its animating context of interests, inequality, and ideology. Without consideration of these larger forces of power, Silverstein's framework misplaces law's ability to “change minds” in perverse and unexpected ways.     

Democracy,Law, Compliance

Professors Schauer and McAdams both seek a more or less sweepingly general theory of why we obey the law. But we should split, not lump. There are different reasons different actors in different social settings obey different laws–not only, but not least, out of regard for democratic decision making.