Relational legal consciousness in the punitive welfare state: How Dutch welfare officials shape clients' perceptions of law

With a growing number of strict obligations and harsh sanctions for welfare recipients, the Netherlands has increasingly become a punitive welfare state. This article looks at what this means for welfare clients and their commonsense understandings of the law. To analyze how welfare officials shape clients' legal consciousness, I draw on an online survey among Dutch welfare clients (N = 1305) and a correlation analysis. The findings show that there is a clear relationship between welfare clients' own legal consciousness and their assessment of welfare officials' beliefs about the law. However, not all elements of their legal consciousness are relationally influenced by the same factors. Also, clients' self-reported compliance behavior is less relationally influenced than other elements of their legal consciousness. This study adds to our understanding of the mechanisms that constitute the production of relational and second-order legal consciousness and it contributes to the development of new research methods to study people's perceptions of law.     

Sustaining the State: Legal Consciousness and the Construction of Legality in Competing Abortion Activists' Narratives

This article investigates how activists involved in both sides of the street politics of abortion simultaneously create, are constrained by, and use law when recounting a period of conflict that resulted in litigation. The activists‐turned‐litigants' construction of legality is explored by identifying and analyzing patterns of inclusion, absence, amendment, and type of law (i.e., state or extrastate) in and across the stories they tell. It is found that even though there are multiple reasons to expect all of these activists to resist or amend the state's conception of law, their narratives ultimately reproduce state law's legitimacy and power. The activists' stories also illustrate that legal consciousness is contextually and experientially based and is therefore subject to change. This finding has implications for legal mobilization as well as for the nature of legal consciousness.     

Connecting Critical Race Theory with Second Generation Legal Consciousness Work in Obasogie's Blinded by Sight

Sociologist and legal scholar Osagie Obasogie's study of how blind people “see” race reveals the usually invisible, taken‐for‐granted mechanisms that reproduce racism. In Blinded by Sight, he distinguishes racial consciousness from legal consciousness, though he notes their common emphases on studying how cumulative social practices and interactions produce commonsense understandings. I argue that there is much to be gained from connecting these two fields, one emanating primarily out of critical race theory and the other out of law and society scholarship. Legal consciousness offers an important avenue for bridging macro studies of race making with micro studies such as Obasogie's, which focus on individuals’ experiences and practices of constructing race and learning racism.     

Relational legal consciousness in the one-child nation

This article draws from a qualitative study of people's responses to China's population control policies to analyze the relational formation of legal consciousness within and across different types of relationships. It demonstrates that our expectations of others and theirs of us regarding how to respond to law change significantly when we situate ourselves in different types of relationships. The fluid boundaries of relationships in Chinese society also make it essential to think and plan relationally and holistically across different types of relationships to come up with strategies to resist or comply with the law. During this process of relational formation of legal consciousness, law interacts with and reshapes social norms to determine the (un)availability of alternative mechanisms based on the individual's social and financial status.     

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.     

Mobilizing the Law in China: "Informed Disenchantment" and the Development of Legal Consciousness

This article critically examines the development of legal consciousness among legal aid plaintiffs in Shanghai. It is based on 16 months of research at a large legal aid center and in‐depth interviews with 50 plaintiffs. Chinese legal aid plaintiffs come to the legal process with high expectations about the possibility of protecting their rights; however, they also have only a vague and imprecise knowledge of legal procedure and their actual codified rights. Through this process of legal mobilization, plaintiffs' legal consciousness changes in two separate dimensions: changes in one's feelings of efficacy and competency vis‐à‐vis the law, and changes in one's perception/evaluation of the legal system. Put another way, the first dimension is “How well can I work the law?” and the second is “How well does the law work?” In this study I observe positive changes in feelings of individual efficacy and competency that are combined with more negative evaluations/perceptions of the legal system in terms of its fairness and effectiveness. The positive feelings of efficacy and voice provided by the legal process encourage labor dispute plaintiffs in the post‐dispute period to plan new lawsuits and to help friends and relatives with their legal problems. Disenchantment with the promises of the legal system does not lead to despondency, but to more critical, informed action. This study provides new evidence on the nature of China's developing legal system with a focus on the social response to the state‐led “rule of law” project.     

Fixing Transnational Drug Policy: Drug Prohibition in the Eyes of Comparative Law

Drug prohibition allows us to study over a significant period of time how penal provisions framed at a supranational level flow, settle, and unsettle across different countries. At a time of growing doubt about the benefit of criminalization of drug use, it also provides a case‐study as to how epistemic communities may rely on comparative research to identify best practices and promote them as normative alternatives in the face of a long‐entrenched legal dogma. In order to explore these issues, this article looks at the UN drug control system from the perspective of comparative law. It shows how the concept of legal transplant provides a useful tool to understand the limits of transnational criminal law designed on a global scale to tackle the ‘drug problem', and it clarifies the various types of legal comparison that might contribute to addressing this failed transplant.     

Pragmatic Resistance,Law, and Social Movements in Authoritarian States: The Case of Gay Collective Action in Singapore

This article draws from a qualitative study of Singapore's gay movement to analyze how gay organizing occurs in authoritarian states, and where and how law matters. Singapore's gay activists engage in “strategic adaptation” to deploy a strategy of pragmatic resistance that involves an interplay among legal restrictions and cultural norms. Balancing the movement's survival with its advancement, they shun direct confrontation, and avoid being seen as a threat to the existing political order. As legal restrictions and as a source of legitimacy, law correspondingly oppresses sexual conduct and civil‐political liberties, and culturally delegitimizes dissent. However, when activists mount pragmatic resistance at and through law, it also matters as a source of contestation. Further, law matters as a trade‐off between reifying the existing order in exchange for survival and immediate gains. Yet, by treating law as purely tactical, these activists arguably end up de‐centering law, being pragmatically unconcerned with whether they are ideologically challenging or being co‐opted by it.     

The Legal Case File as Border Object: On Self‐reference and Other‐reference in Criminal Law

What do case files do? With help of an ethnographic study on the care, maintenance, and use of legal case files in a Dutch, inquisitorial context, we work through Latour's and Luhmann's conceptualizations of law. We understand these case files as enacting and performing both self‐reference and other‐reference. We coin the term border object to denote the way the legal case file becomes the nexus between two worlds it itself performatively produces: the world of ‘law itself’ on the one hand, and the ‘world out there’ on the other. As such, our discussion offers clues for a partial reconciliation of Latour's and Luhmann's conceptualizations of law: while Luhmann's insistence on other‐referential operations assist in showing how law forges an ‘epistemic relationship’ with the realities it seeks to judge, Latour's concentration on the materialities of epistemic practices assists in situating these other‐referential and self‐referential operations.     

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.     

Ignorance in Bliss: Modeling Knowledge of Rights in Marriage and Cohabitation

We live our lives against an extensive backdrop of legal rights and responsibilities, yet a growing number of studies indicates low levels of public legal literacy. In the context of opposite‐sex cohabitation and marriage law, this study employs new survey data from the United Kingdom to explore, in detail, how many and which people are ignorant of the law, and what are the nature and origins of erroneous beliefs. We find that people's beliefs about both cohabitation and marriage law are frequently wrong. They are also strikingly similar, and reflect the divergence of social attitudes from the law. Our findings are consistent with the notion that legal literacy links to salience of issue. They are also consistent with recent public legal education initiatives that affected public understanding of cohabitation law, but we argue that social attitudes and the intransigence of erroneous beliefs generally present significant challenges to such initiatives.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

Perceptions of Legitimacy: The Sex of the Legal Messenger and Reactions to Sexual Harassment Training

Research shows that exposure to sexual harassment policy sometimes activates traditional gender stereotypes. This article examines whether the sex of the legal messenger moderates reactions to the enforcement of sexual harassment laws. We employ a 2 × 2 experimental design in which we measure the effect of a sexual harassment policy intervention on male participants’ gender beliefs. The design varies whether the person communicating the policy information is male or female. We find that female policy trainers activate implicit gender stereotypes, but explicit gender egalitarian beliefs. Other than improving men's perceptions of women's considerateness, the policy has little effect on beliefs in the conditions with a male trainer. These results suggest that the effect of law on social change is contingent on characteristics of the legal messengers. Findings contribute to our understanding of gender inequality and legitimacy processes and have practical implications for implementing effective policy.     

Justice,Emotion, and Belonging: Legal Consciousness in a Taiwanese Family Conflict

This case study of a family conflict in Taiwan explores how legal consciousness is emotionally driven, intersubjective, and dependent on relational factors that are deeply connected to an individual's perception of the self–other relationship and affinity therein. As the members of the Lee family negotiated emotionally on issues involving elder care and inheritance, their adoption of law was at times absent, at others influential, but always shaped by certain Chinese concepts such as zìjǐrén (自己人), which constitute the emotional complex of belonging in Taiwan. This cultural patterning identifies a person as included, accepted, and respected by the group and when in conflict, is the driving force behind a disputants' pursuit of an identity that places them on moral high ground as a form of justice. Rather than depending on rational decision making or legal norms, their legal consciousness was determined by the sense of self, rectitude, emotion, and subjectivity.     

The Evolutionary Game‐Theoretic Foundations of Law

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game‐theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well‐grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game‐theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game‐theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.     

A Multidimensional View of Legal Cynicism: Perceptions of the Police Among Anti‐harassment Teams in Egypt

In Egypt in 2012, several anti‐harassment groups were established to respond to an increase in sexual violence in public spaces and to the failure of the state to tackle the issue. Anti‐harassment groups organized patrol‐type intervention teams that operated during demonstrations or public celebrations to stop sexual assaults. This article examines how activists perceived the police in five anti‐harassment groups between 2012 and 2014, and the role these perceptions played in groups' decisions about cooperating with the police, and on‐the‐ground strategies of action. I argue for a multidimensional view of legal cynicism that conceptualizes legal cynicism as composed of three dimensions: legitimacy (a sense that law enforcement agencies are not entitled to be deferred to and obeyed), protection (a perception that the law fails to protect rights and provide public safety), and threat (a perception that the law represents a threat). This approach helps uncover the various meanings that legal cynicism takes for different actors in different contexts, and how actors justify their strategies of action based on their specific perceptions of the police's legitimacy, protective role, and threat.     

DEVELOPMENT AND FRACTURE OF A DISCIPLINE: LEGACIES OF THE SCHOOL OF CRIMINOLOGY AT BERKELEY

In the early twentieth century, the University of California—Berkeley opened its doors to police professionals for instruction in “police science.” This program ultimately developed into the full‐fledged School of Criminology, whose graduates helped shape American criminology and criminal justice until well into the 1970s. Scholarship at the School of Criminology eventually fractured into three distinct traditions: “Administrative criminology” applied scientific methods in pursuit of refining law enforcement practices, “law and society” coupled legal scholarship with social scientific methods, and “radical criminology” combined Marxist critiques of the state with community activism. Those scientific traditions relied on competing epistemic premises and normative aspirations, and they drew legitimacy from different sources. Drawing on oral histories and archival data permits a neo‐institutional analysis of how each of these criminological traditions emerged, acquired stability, and subsided. The Berkeley School of Criminology provides fertile ground to examine trends in the development of criminal justice as a profession, criminology as a discipline and its place in elite universities, the uncoupling of criminology from law and society scholarship, and criminal justice policy's disenchantment with the academy. These legacies highlight how the development of modern criminology and the professionalization of American law enforcement find precedent in events that originate at Berkeley.     

Radical Transactionalism: Legal Consciousness,Diverse Economies,and the Sharing Economy

This article proposes an original theoretical approach to the analysis of community‐level action for sustainability, focusing on its troubled relationship to the sharing economy. Through a conversation between scholarship on legal consciousness and diverse economies, it shows how struggles over transactional legality are a neglected site of activism for sustainability. Recognizing the diversity of economic life and forms of law illuminates what we call ‘radical transactionalism': the creative redeployment of legal techniques and practices relating to risk management, organizational form, and the allocation of contractual and property rights in order to further the purpose of internalizing social and ecological values into the heart of economic exchange. By viewing sharing‐economy initiatives ‘beyond Airbnb and Uber’ as sites of radical transactionalism, legal building blocks of property and capital can be reimagined and reconfigured, helping to construct a shared infrastructure for the exercise of collective agency in response to disadvantage sustained by law.     

Ideals and Practices in the Rule of Law: An Essay on Legal Politics

Massoud, Mark Fathi. 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge: Cambridge University Press. Pp. 277. Paper $34.99. This essay responds to the three commentators in the symposium on my book, Law's Fragile State, by describing the sociolegal study of the rule of law as an investigation into both a set of ideals (the rule of law as a normative question) and a set of practices (the rule of law as an empirical question). Studying the rule of law involves understanding the contingent nature of its ideals as well as investigating the actual work that lawyers, judges, state officials, aid workers, activists, and others have done in specific contexts to promote legal remedies to social or political ills. These overlapping layers of the study of the rule of law—ideals and practices, normative and empirical—provide a sociolegal framework for understanding the successes and failures of legal work and, ultimately, how citizens experience state power in democratic and nondemocratic societies alike.     

Hidden Law‐Making in the Province of Medical Jurisprudence

Judges articulate their role in controversial cases of medical ethics in terms of deference to Parliament, lest their personal morality be improperly brought to bear. This hides a wide range of law‐making activities, as parliamentary sovereignty is diffused by ‘intermediate law‐makers’, and judicial activity is more subtle than the deference account implies. The nature of litigation raises questions about the contributions of other legal personnel and also the nature of the parties' interests in test‐cases. While judges demonstrate an awareness of some of these issues and anxiety about the constitutional legitimacy of their work, a more nuanced account is needed of their proper role. This may be built on Austin's theory of tacit legislation. It may draw from human rights law. However, considerable work is required before the complexities of hidden law‐making can be properly incorporated into the province of medical jurisprudence.