The Rule of Law and Authoritarian Rule: Legal Politics in Sudan

Mark Fathi, Massoud . 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge University Press. Pp. xxii + 265. $109.99 cloth, $34.99 paper. Does the rule of law guarantee peace and democracy, as so many people in the development and governance field believe? What are the historical and sociocultural conditions that shape the way rule of law mechanisms work in practice? Mark Massoud's monograph tracing the changing dimensions of the rule of law in Sudan from its colonial period to the present offers an important perspective on these questions, casting doubt on the simple argument that the rule of law produces democracy and peace. Instead, he shows how colonial and authoritarian rulers used the rule of law to consolidate power and legitimate their rule. In Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan, Massoud develops the concept of legal politics, arguing that the way the rule of law works varies with the political system in which it is embedded. He concludes that the forms of legal politics that reinforce the power and authority of legal institutions are more likely to sustain an authoritarian state than to bring democratic rule. His analysis is a valuable caution to those who promote the rule of law as the salvation for all. Taking a sociolegal perspective, he shows how it works in practice.     

Rethinking Law and State Building in Sub‐Saharan Africa

Massoud, Mark Fathi. 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge/New York: Cambridge University Press. Pp. x–277. ISBN: 9781107440050. Paper $34.99 This essay is a response to Mark Massoud's Law's Fragile State, and through comparative inquiry argues that highly contextualized analysis of courts is critical to gaining an understanding of judicial decision making and judicial empowerment. As Massoud demonstrates, focusing on the legal complex is a particularly worthwhile endeavor in fragile states. Although we may understand the sociology of the legal profession, we do not fully understand how professional networks, career paths, and identities truly impact the institutional pathways of the courts and the legal system as a whole.     

Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law

In Twilight of the Idols, Nietzsche presents a history of metaphysics that can also be read as a history of jurisprudence. Nietzsche shows how—via Platonism, Christendom, Kantianism, and utilitarianism—the “real” or “true” world of ideals gives way to an “apparent” phenomenal world that is itself ultimately brought into question. This article shows how 20th-century legal thought, broadly construed, also moves away from “ideals” of law toward an understanding of law as observable social phenomena. It suggests that the move to the “apparent” world in legal thought raises questions similar to those raised by Nietzsche's work: Does sociological law point to a nihilistic destruction of the legal tradition or to a joyous possibility of overcoming that tradition?     

Why Interpret?

Abstract. My article is about legal interpretation, but not about the question: how to interpret the law. Rather its aim is to make us consider seriously the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no “moral sources” while legal sources are central to the law. Legal interpretation is primarily—I will suggest—the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. I will show how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality. Are there gaps in the law? Is the law or its interpretation objective or subjective?     

The Rule of Law between England and Sudan: Hay,Thompson, and Massoud

Massoud, Mark. 2013 . Law's Fragile State: Colonial, Authoritarian and Humanitarian Legacies in Sudan . Cambridge/New York: Cambridge University Press. Pp. x–277. ISBN: 9781107440050. Paper $34.99 Two significant writings, one by Douglas Hay and the other by E. P. Thompson, appeared in 1976. Both sought to explain relationships between law and social (specifically, ruling‐class) power in a manner that avoided treating law either simply as a coercive instrument of class domination (“vulgar Marxism”), or as a good for all “(liberal legalism”). They overlapped and each was influenced by the other, but they differed significantly, in substance, in tone, and in admirers. Mark Massoud sensibly and thoughtfully draws inspiration from both. This article queries, however, whether his account of the role and rule of law in Sudan manages to resolve a significant tension between Hay and Thompson. This results in a certain ambivalence in the telling, a sometimes anguished oscillation between two interpretive modes, perhaps sensibilities, represented by Hay and Thompson, each of which can lead in different directions.     

A Reasonable Balance of Law and Sentiment: Social Order in Democratic Taiwan from the Policeman's Point of View

Taiwan's political democratization has engendered a contradiction in its legal regime: consolidation of rule of law at the macro-institutional level is matched by the persistent marginalization of legal authority in ground-level social practices. This article uses an ethnographic study of neighborhood police to explore certain practical and structural elements involved in maintaining this contradictory sociopolitical order. I examine some of the processes through which state authority is invoked and applied to the policing of public space, focusing on the ideals of legitimacy that animate these processes. The argument of the article is that historical and cultural factors embodied in contemporary Taiwan's "idea of police"—exemplified in the trope of a balance between reason, law, and sentiment—are crucial to understanding how solidification of the rule of law within state institutions is kept within the boundaries of a social sensibility that does not take law as the last word.     

Law's Allure and the Power of Path-Dependent Legal Ideas

Gordon Silverstein's Law's Allure (2009) advances a two-part thesis on the power of legal ideas. The first is that legal precedents establish the ideological baselines on which legislative and bureaucratic policies are developed. Silverstein amply demonstrates the validity of this thesis. The second is that by establishing ideological baselines, legal precedents contribute to a version of path dependency (or the idea that early choices determine long-term developments) that is significantly more constraining than other forms of institutional entrenchment. Put simply, law shackles creativity in politics. This thesis I do not find persuasive, in part because Silverstein offers little evidence for it and in part because a growing body of literature suggests the contrary: the cross-fertilization of ideas from one field to another—law to politics, for instance—contributes to, rather than retards, creative change. Nonetheless, while its broader ambitions are not satisfied, Law's Allure's narrow thesis—that precedent profoundly shapes policy development—is important and worthy of a major book in itself.     

Fear of the Disability Con: Perceptions of Fraud and Special Rights Discourse

This article presents a new framework for analyzing the development and implementation of disability law: the prism of the fear of “the disability con”—popular perceptions of fraud and fakery. We all encounter disability rights and accommodations in everyday life. However, people with disabilities pay a price for the legal recognition of their rights. People who park in disabled parking spots, use service dogs, move to the front of lines, receive Social Security benefits, or request academic accommodations are often viewed as faking disabilities and abusing the law. This disability con stereotype thus serves as an important invisible barrier preventing Americans with disabilities from fully taking part in society, as it not only undermines the public legitimacy of rights but also restricts the design and implementation of the legal regime illustrating those. Nevertheless, this moral panic around disability con in American society and its manifestations has yet to be studied in a systematic‐empirical way, nor has it been addressed in sociolegal scholarship. Using a mixed‐methods approach composed of an original nationally representative survey along with in‐depth interviews, this article fills this gap. The data suggest that the stereotype of disability con applies to multiple disability rights across venues and contexts; that nearly 60% of Americans with disabilities feel that others question their disability; that the stereotype of disability con extends to visible disabilities and to less apparent ones; and that, counterintuitively, the people most suspicious are nondisabled individuals with a personal connection to a disabled person and disabled people who experience suspicion themselves. Based on the richer understanding of the sociolegal phenomenon, this article suggests strategies to increase trust and reduce suspicion of the disability con.     

Schmitt's Critique of Kelsenian Normativism*

Abstract. The aim of this paper is to underline the relevance of Schmitt's critique of Kelsenian normativism in the context of today's debate about the status of legal positivism. Schmitt's underlining of the limits which a certain kind of positivism imposes upon itself highlights a contemporary issue about what legal theory should aim at when accounting for the normative dimension of law. Schmitt's ultimate failure to take up the theoretical challenge he himself raised (with its well‐known consequences) is deemed to illustrate—negatively—the importance of providing a plausible account of the social practices which bring law into existence.     

The Diffusion of Rights: From Law on the Books to Organizational Rights Practices

How does law change society? To gain new leverage on this long‐standing question, this article draws on two lines of research that often ignore each other: political science research on the mobilization of law, and sociological research on the diffusion of organizational practices. Our insights stem from six case studies of diverse organizations' responses to the accommodation provisions in the Americans with Disabilities Act and related state laws. We found that different modes of exposure to the law combined with organizational attributes to produce distinct “rights practices”—styles of standard operating procedures and informal routines that reflect the understanding of legal requirements within an organization. The diversity of the organizational responses challenges simple dichotomies between compliance/noncompliance, change through deterrence/change through norms, and mobilization/nonmobilization, and it underscores the importance of combining political science and sociological perspectives on law and social change.     

Legal Compliance in Street‐Level Bureaucracy: A Study of UK Housing Officers

Street‐level bureaucratic theory is now at a fairly mature stage. The focus on street‐level bureaucrats as ultimate policymakers is now as familiar as it is important. Likewise, the parallel sociolegal study of the implementation of public law in public organizations has demonstrated the inevitable gap between law‐in‐the‐books and law‐in‐action. Yet, the success of these advances comes at the potential cost of us losing sight of the importance of law itself. This article analyzes some empirical data on the decision making about one legal concept—vulnerability in UK homelessness law. Our analysis offers two main contributions. First, we argue that, when it comes to the implementation of law, the legal abilities and propensities of the bureaucrats must be taken into account. Bureaucrats' abilities to understand legal materials make a difference to the likelihood of legal compliance. Second, we must also pay attention to the character of the legal provisions. Where a provision is simple, it is more likely to facilitate legal knowledge and demands nothing of bureaucrats in terms of legal competence. Where the provision is also inoffensive and liveable, it is less likely to act as an impediment to legal conscientiousness.     

Legal Entrepreneurship and the Strategic Virtues of Legal Uncertainty

The field of law and strategy (LAS) has advanced our understanding of the law's role in competitive advantage. To date, however, LAS has neglected low rule of law environments—countries characterized by expansive degrees of legal uncertainty. LAS should account for these settings, too, since environmental uncertainty is a strategically significant factor for any company. This article situates the strategic relevance of legal uncertainty in the Chinese context and fills an important gap by illustrating how LAS principles apply in low rule of law jurisdictions. Specifically, this article develops the construct of legal entrepreneurship—the notion that attorneys may apply an entrepreneurial mind-set and skill set to position the client favorably and legitimately within the uncertainties of the legal landscape, thereby creating legal competitive advantages for the client. Drawing upon interviews with expert attorneys and executives, this article presents a typology of legal strategies available to U.S. companies in China, uniquely modeling these approaches along the two fundamental dimensions of legal strategy. Additionally, this article identifies two basic types of legal uncertainty in the cross-border context and offers guidelines for the exercise of legal entrepreneurship. Together, these arguments demonstrate that legal entrepreneurship is an empirically viable construct within the LAS project. In low rule of law jurisdictions that have embraced foreign enterprise, legal entrepreneurship will generally optimize the American company's pursuit of both legal value creation and legal risk management.     

The Legality of Self‐Constitution

An influential strand in recent action‐theory employs constitutivist arguments in order to present accounts of individual agency and practical identity (and of the normative requirements that are constitutive of these phenomena). I argue for an extension of this framework into the interpersonal realm, and suggest using it to reassess issues in jurisprudence. A legal system is an instantiation of the solution to the inescapable tasks of self‐constituting action and identity‐formation in the presence of other agents. Law's validity and normativity can be enlightened when the constitutivist approach considers the external prerequisites of individuals' self‐conceptions qua agents. More specifically, this argumentative strategy allows a reassessment of Fuller's “internal morality of law.” Whereas, pace Fuller, morally substantive conclusions cannot be derived from formal criteria of legality, there are unconditional normative requirements that constrain law.     

The Reconstitution of Law in Local Settings: Agency Discretion, Ambiguity, and a Surplus of Law in the Policing of Hate Crime

An important yet poorly understood function of law enforcement organizations is the role they play in distilling and transmitting the meaning of legal rules to frontline law enforcement officers and their local communities. In this study, we examine how police and sheriff's agencies in California collectively make sense of state hate crime laws. To do so, we gathered formal policy documents called “hate crime general orders” from all 397 police and sheriff's departments in the state and conducted interviews with law enforcement officials to determine the aggregate patterns of local agencies' responses to higher law. We also construct a “genealogy of law” to locate the sources of the definitions of hate crime used in agency policies. Despite a common set of state criminal laws, we find significant variation in how hate crime is defined in these documents, which we attribute to the discretion local law enforcement agencies possess, the ambiguity of law, and the surplus of legal definitions of hate crime available in the larger environment to which law enforcement must respond. Some law enforcement agencies take their cue from other agencies, some follow statewide guidelines, and others are oriented toward gaining legitimacy from national professional bodies or groups within their own community. The social mechanisms that produce the observed clustering patterns in terms of approach to hate crime law are mimetic (copying another department), normative (driven by professional standards about training and community social movement pressure), and actuarial (affected by the demands of the crime data collection system). Together these findings paint a picture of policing organizations as mediators between law‐on‐the‐books and law‐in‐action that are embedded in interorganizational networks with other departments, state and federal agencies, professional bodies, national social movement organizations, and local community groups. The implications of an interorganizational field perspective on law enforcement and implementation are discussed in relation to existing sociolegal research on policing, regulation, and recent neo‐institutional scholarship on law.     

Legal Theory for Legal Empiricists

There is a widespread view that one does either theory or empirical work, and that theory and empiricism represent distant concerns, opposing worldviews, and perhaps distinct mentalities or personalities. This prevalent view has deep roots and is also the result of pragmatic and understandable tendencies toward division of intellectual labor. Against this view, this essay suggests that the relations between theory and empirical study ought to be understood as more intimate and that making legal theory an explicit focus can improve empirical scholarship. We pursue this claim by articulating a basis for legal theory and by showing how that basis illuminates both the application and design of empirical research on law. Legal theory, we argue, follows jurisprudence in interrogating the law as a set of coercive normative institutions. The upshot of this approach is a recognition that an interdisciplinary analysis of law must rely on both a theory (explicit or implicit) of the way law's power and its normativity align and an account of the way in which this discursive cohabitation manifests itself institutionally. We thus argue that legal theory is necessary in order to draw fruitfully on empirical research and further claim that legal theory provides guidance both for setting up an empirical research agenda on law and for designing research into specific topics.     

Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law through Institutional Entrepreneurship

Extensive sociolegal scholarship has addressed the utility of law as a mechanism through which marginalized groups may promote social change. Within this debate, scholars employing the legal mobilization approach have thus far highlighted law's indirect impact, beyond the formal arenas of law, via effects on the "legal consciousness" of reformers and would-be reformers. This article contributes to this debate, and the legal mobilization framework in particular, by theoretically identifying and empirically documenting ways through which the constitutive power of law may be effectively used by challengers to more directly pursue changes in institutionalized practices themselves. The article examines the strategic use of law by a set of American Indian tribal leaders in the state of Washington who, over a 13-year period, consciously meshed or "cohered" legal and extrajudicial efforts to gain recognition of their sovereign political status. Through a mode of agency known as "institutional entrepreneurship," they utilized the multiplicity of law and exploited resources and opportunities inhering within the state itself, but outside the courts. In the context of ambiguous legal precedent and widespread local challenges to tribal rights, they mobilized latent discourses of federal Indian law that legitimated the sovereign governmental status of tribes. Importantly, they circulated tribal sovereignty discourses well beyond the field of law, but through the authoritative activity and voice of the state, and in doing so, generated a precedent-setting recognition of tribal sovereignty.     

Laboratories of Statehood: Legal Intervention in Colonial Africa and Today

The immense body of contemporary work aimed at ‘promoting the rule of law’ is often accused of ‘neo‐imperialism’. Yet, despite many points of contiguity between past and present legal interventions, the charge is overbroad and rarely illuminating. This article attempts to move beyond polemic to track concrete historical and structural forerunners of today's rule of law work. Focusing mainly (though not exclusively) on late imperial British endeavours, it traces colonial legal interventions over time, the techniques adopted (and rejected), the shifting normative bases of legitimacy, and moments of strategic recalibration in the face of resistance. Three broad attitudes towards law across the period are (provisionally) characterised as ‘regulative’, ‘constitutive’ and ‘institutive’ moments. In each phase, the Powers treat colonial territories as laboratories of statehood, within which experiments are conducted to locate the optimal configuration of law. In conclusion some counterparts to these moments in today's ‘rule of law’ activities are identified.     

Under the Law: Legal Consciousness and Radical Environmental Activism

A growing body of sociolegal scholarship focuses the study of law away from formal texts and legal institutions and toward the experiences and perceptions of “everyday” citizens. This study introduces seventeen “radical” environmentalists who engage a repertoire of tactics that includes some actions that involve relatively severe forms of illegality. This research seeks to investigate the role of civil disobedience and lawbreaking within the radical environmental movement and the corresponding legal consciousness of movement actors. Utilizing ethnographic fieldwork and content analysis, this analysis suggests that Ewick and Silbey's (1998 ) three‐tiered model of legal consciousness is an operative starting point, but could be enhanced through theoretical expansion. This study proposes a new category of legal consciousness—Under the Law—that views the law as the protector and defender of a social order that is fundamentally illegitimate. Under the Law is qualitatively different from existing conceptualizations of legal consciousness and reaffirms the mutually constitutive nature of law and society.