The History of Genres: Reaching for Reality in Law and Literature

Genres are historical formations; their ability to generate knowledge depends on their interrelationships within a culture. Since law, too, can be viewed as a genre, studies of specific historical relationalities between law and other genres are necessary for law's own history and theory. This essay discusses differentiations between Victorian law and literature, starting out from the recent publication of Ayelet Ben‐Yishai's Common Precedents: The Presentness of the Past in Victorian Law and Fiction (2013), which reveals some of that history. I examine two points: differentiations in legal and literary approaches to probabilistic knowledge, and differentiations in the author functions in law and literature. These differentiations bear multiple implications. I discuss implications for evidence‐law debates about probabilistic evidence, for contract‐law debates about the centrality of autonomy and self‐authorship, and for understandings of legal reasoning itself—the elusive notion of “thinking like a lawyer.”     

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 education in France and England: A comparative study*

Abstract

Despite the fact that part‐time law students comprise a significant proportion of law undergraduates, there continues to be an absence of legal research that considers the experiences and aspirations of such students as a distinct group. Against this backdrop, it is argued that these students require further research and attention for a number of reasons. First, their location allows a consideration of the extent to which broader governmental objectives for higher education are being met within law schools. Second, the extent of their presence in higher legal education places an important obligation upon law schools to explore the specific needs of this cohort and to consider the extent to which part‐time law students can be legitimately subsumed into the undergraduate cohort in terms of resources and planning. Third, the legal ambitions of many part‐time law students require a fresh consideration of the expectations of the recruiting legal profession and the legal profession's commitment to broadening social diversity within its ranks. Finally, as the experiences of part‐time and full‐time students become closer, a proper analysis of part‐time law students may provide invaluable information as to how law schools could adapt to meet the needs of all students in the future.     

The EU's Private Law in the Regulated Sectors: Competitive Market Handmaiden or Institutional Platform?

The article contests the claim that EU private law is narrowly circumscribed by a market rationality. Such a claim tracks broader criticism of EU functional legal integration, although it tends to obscure the underlying transformative pressures on private law and regulation and the role EU law plays in coping with such pressures. To offer a number of counter‐narratives, the article draws on examples from the regulated sectors, including telecommunications and energy, to reveal their experimentalist features. These suggest that EU private law is constructed through a process of error‐corrections, which allows for mutual adjustment of instruments and hybridisation of EU and local policy goals. The process results in more finely grained assemblages of autonomy and regulation to respond to concrete problems or newly salient policy goals, so that markets are understood as social institutions that are always works‐in‐progress rather than convergence points. Thus, EU private law provides a platform for transnational market‐building through innovating institutions that promote various normative and policy commitments despite the interdependencies that could undermine them.     

Reconfiguring the Politics–Law Relationship in the Integration Project through Conflicts–Law Constitutionalism

This paper argues that the relationship between law and politics must be reconfigured within the European Union. Dissecting recent crises in economic, social and political organisation within Europe with reference to the three ‘fictitious’ commodities of Karl Polanyi, we find that law in Europe has contributed to de‐legalisation, de‐socialisation and disenfranchisement. Moving on to review the potential for law to respond to crisis through new paradigms of conflict resolution as suggested by Ralf Dahrendorf, we find that the steering capacity of law is nevertheless limited if it fails to establish a sustaining relationship with politics. Our conclusions are modest: conflict–law constitutionalism cannot solve Europe's many crises. However, it does represent a new paradigm of law within which relations between European law and European politics might be re‐established—a vital step to overcoming crisis.     

Sacred Spaces,Sacred Words: Religion and Same‐sex Marriage in England and Wales

This article provides an analysis of the ways in which the spatial and illocutionary requirements of English marriage law – which regulate the spaces in which marriages may be solemnized and the words the parties being married must speak – have been used to maintain distinctions between same‐sex and opposite‐sex couples. It shows how religious opponents of same‐sex partnership recognition have relied upon historically entrenched differences between the spatial and illocutionary aspects of ‘civil marriage’ and ‘religious marriage’ to argue in favour of the enactment of law that enables organized religions to exclude same‐sex couples from religious premises and ceremonies that are open to opposite‐sex couples for the purpose of solemnizing marriage. It extends recent international debates about how faith‐based discrimination against same‐sex couples is accommodated by legislators and legitimized by law, and concludes with a consideration of how English law could be amended to end discrimination based on sexual orientation.     

No Country for Made Men: The Decline of the Mafia in Post‐Soviet Georgia

This article studies the decline of a long‐standing mafia known as thieves‐in‐law in the post‐Soviet republic of Georgia. In 2005 an anti‐mafia campaign began which employed laws directly targeting the thieves‐in‐law. Within a year, all Georgia's thieves‐in‐law were in prison or had fled the country. This article looks at the success of the policy by investigating how Georgia's volatile socio‐economic environment in the 1990s affected the resilience of the thieves‐in‐law to state attack. The article presents data showing that the chaos of this period impacted on the ability of thieves‐in‐law to coordinate activities, regulate recruitment, and protect their main collective resource—their elite criminal status. Due to this, the reputation of the thieves‐in‐law as a mafia drastically declined creating vulnerability. The article adds to the literature on resilience in criminal networks and the study of organized crime in the post‐Soviet space.     

When Do Laws Matter? National Minimum‐Age‐of‐Marriage Laws,Child Rights,and Adolescent Fertility, 1989–2007

Using the case of adolescent fertility, we ask the questions of whether and when national laws have an effect on outcomes above and beyond the effects of international law and global organizing. To answer these questions, we utilize a fixed‐effect time‐series regression model to analyze the impact of minimum‐age‐of‐marriage laws in 115 poor‐ and middle‐income countries from 1989 to 2007. We find that countries with strict laws setting the minimum age of marriage at 18 experienced the most dramatic decline in rates of adolescent fertility. Trends in countries that set this age at 18 but allowed exceptions (for example, marriage with parental consent) were indistinguishable from countries that had no such minimum‐age‐of‐marriage law. Thus, policies that adhere strictly to global norms are more likely to elicit desired outcomes. The article concludes with a discussion of what national law means in a diffuse global system where multiple actors and institutions make the independent effect of law difficult to identify.     

Why Do Labour Lawyers Ignore the Question of Social Justice in European Contract Law?

Abstract: Over recent years, a heated debate about social justice in European contract law has been taking place. Great emphasis is placed on ideological assumptions. For example, the over‐individualistic interpretation of European private law, its market‐led orientation and the insufficient attention paid to the idea of the protection of the weaker party. This discussion considers the traditional conflict between the meta‐principles of market‐oriented efficiency and solidarity‐based action. The whole debate, it seems to me, now calls for a more rules‐based approach. In endeavouring to validate such an approach, this article starts by illustrating the various facets connected to the theme of ‘European contract law’. Then as a preliminary step, I shall briefly examine the question as to why labour lawyers have remained silent and take no part in the discussion on European social contract law. There is ample reason to believe that the contrary is necessary. It has been generally acknowledged that labour contracts are not outside private law—individual contract law in particular—and that it represents one of the most important examples of long term incomplete contracts. The idea of labour law as autonomous is dead and it appears simple to promote the reintegration of labour law into modern social contract law. In the context of the debate on European contract law, three different strategies can be envisaged to achieve this end. The first strategy tests the degree to which provisions under the contractual regime, not all of which are legally binding, effectively meet the needs of the weaker party in the contractual relationship, in terms of his/her security—what might for short be termed the social validity of the contract regime—(the Principles of European Contract Law, the EU rules affecting contract law, etc which are analysed and proposed in the various workshops that are currently examining them), from the specific point of view of labour law. A second strategy is to codify European or Community labour law. Lastly, another strategy is to introduce an intermediate category of long‐term social contracts. What makes this last trend particularly significant for the future is that today globalisation is progressively diminishing the income earned from labour contracts and in this sense creating insecurity. In a globalised economy, where levels of remuneration are lower than in the past, the individual's sense of security must be ensured also in the context of other social or long‐term contracts (outside the workplace), which enable people to obtain other sources of finance (such as consumer credit, for example), or to make arrangements necessary for living (such as tenancy contracts). A need exists for consumers to be granted similar rights to those which historically have been granted to workers. To take just one example: if the borrower under a consumer credit agreement loses his/her job for objective reasons, or falls ill and is therefore temporarily unable to pay the instalments under the agreement, why should there not be a mechanism which limits the credit‐providing institution from terminating the credit arrangement?     

On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

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‘All About That Bass’? Is non‐ideal‐weight discrimination unlawful in the UK?

People of non‐ideal‐weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences from their membership of a group, such as that they are insufficiently self‐motivated to make good employees. But is that discrimination unlawful in the UK? The Equality Act 2010 offers only a very tenuous route for protection, because the Act is based largely on a ‘medical model’ of disability. EU law, which embraces a ‘social model’ of disability, drawing from the UN Convention on the Rights of Persons with Disabilities, offers more, at least in theory. But the mechanisms for enforcing individual EU law rights mean that entitlements in EU law are likely to be enforceable in practice only against state employers. This situation leaves a gap in the law which is remediable only by legislative reform.     

LAW ENFORCEMENT AND THE RULE OF LAW: IS THERE A TRADEOFF?

This essay assesses whether a strong evidence‐based argument can be made to support the proposition that when police violate the rule‐of‐law they do more harm than good with respect to their collective, as well as personal, interests. The assessment is undertaken to counter the common presumption among police officers that circumstances often justify cutting legal corners in the interests of public safety. The essay first examines what research shows about the facilitators of police law breaking. It then examines seven reasons why violating the rule‐of‐law works against the instrumental interests of the police themselves. After assessing the strength of the evidence against the instrumental benefit of violating the rule‐of‐law, suggestions are made about research that is needed to make the case more compelling. In conclusion, the essay discusses how empirical knowledge might be most productively used to change the culture of contemporary policing.     

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.     

How to Make Bad Law: Lessons from Cyberspace

There is a clear trend for law and regulation, particularly in cyberspace, to become increasingly precisely specified. The perceived benefit of this approach, increased certainty as to compliance, may be illusory. Over‐complex laws have serious disadvantages, particularly a greatly weakened normative effect, and problems of contradiction and too‐frequent amendment. The combined effect of these disadvantages can be to produce a ‘bad’ law system, assessed in terms of Fuller's internal morality of law. It may also result in a law‐system which substantially fails to achieve its intended aims. This article proposes that these defects can be cured by abandoning the search for precision and substituting a method of lawmaking which requires the law's subjects to make their own qualitative assessments of whether they are meeting the obligations imposed on them. This will make the law more easily understandable by those to whom it applies, and will also increase the normative effect of cyberspace law.     

MARRIAGE,IN‐LAWS,AND CRIME: THE CASE OF DELINQUENT BROTHERS‐IN‐LAW*

With marriage comes in‐laws, and if the in‐laws include delinquent males, their delinquency could affect the prosocial effects of the given marriage. In this article, I focus on the effect of having a convicted brother‐in‐law as a general indicator of this broader phenomenon of family‐formation processes impairing the positive impact of marriage on crime desistance. I use registry data on all men from birth cohorts 1965–1975 in Denmark (N = 69,066) to show that when a man marries, his new family ties to delinquent brother(s)‐in‐law do indeed hinder his criminal desistance. The results that take into account the characteristics of husbands, wives, their shared family‐formation process, and the criminality of male family members suggest that 1) family dynamics tend to keep criminality within family networks and 2) influences from one's broader social network through marriage are important for the protective effects of marriage. Analyses of previous conviction, co‐offending between a man and his brother‐in‐law, as well as analyses of in‐laws who reside in close proximity confirm the two mentioned main findings. In all, the findings reported in this article add to our understanding of the processes by which families are tied, and how these family‐formation processes influence men's behavior.     

“Impossible Families”: Mixed‐Citizenship Status Couples and the Law

This article explores the complex and contradictory relationship between citizenship in the law and the immigrant reality of mixed‐citizenship family life through in‐depth interviews with individuals in mixed‐citizenship marriages. An examination of mixed‐citizenship marriage exposes the inadequacies of approaching citizenship as an individual‐centered concept. The data indicate that, though both immigration and citizenship laws focus on the individual, the repercussions of those laws have family‐level effects. Because of their spouses' immigrant status, many citizens are obliged by the law to live the immigrant experience in their own country or to become immigrants themselves.     

The Path of the Law Review: How Interfield Ties Contribute to Institutional Emergence and Buffer against Change

Early neoinstitutional theory tended to assume institutional reproduction, while recent accounts privilege situations in which alternative models from outside an organizational environment or delegitimizing criticism from within precipitate institutional change. We know little about institutions that persist despite such change conditions. Recent advances in sociological field theory suggest that interfield ties contribute to institutional change but under‐theorize how such ties may reinforce institutions. Extending both approaches, I incorporate self‐reinforcing mechanisms from path‐dependence scholarship. I elucidate my framework by analyzing the student‐edited, student‐reviewed law review. Despite its anomalous position relative to the dominant peer‐reviewed journal model of other disciplines, and despite sustained criticisms from those who publish in them, the law review remains a bedrock institution of law schools and legal scholarship. I combine qualitative historical analyses of legal scholarship and law schools with quantitative analyses of law‐review structures and field contestation. The analysis covers law review's entire historical trajectory—its emergence, its institutionalization and coherence of a field around it, and its current state as a contested but persistent institution. I argue that self‐reinforcing mechanisms evident in law review's ties to related fields‐legal practice, law schools, the university, and legal periodicals—both enabled its emergence and have buffered it against change.     

The Law‐Before: Legacies and Gaps in Penal Reform

This article introduces the law‐before as an analytic tool for enhancing explanations of legal reform. Based on an integration of neo‐institutional law and organizations studies and punishment studies of local variation in penal policy, I define the law‐before as the past organizational practices and power arrangements that precede law‐on‐the‐books and shape present day implementation. I utilize the law‐before as a heuristic to investigate the legacy effects of variations in local practice on the implementation of the prison downsizing law, AB 109, or “Realignment,” in California. I analyze organizational documents produced by county practitioners in the aftermath of AB 109's enactment in 2011 as empirical windows into how actors shape the meaning of law in local settings. I find that practitioners in counties with divergent historical imprisonment patterns enact four processes (overwriting or underwriting law, selective magnification, and selective siting) to arrive at distinct interpretations of AB 109 as mandating system‐wide decarceration or the relocation of incarceration from state prisons to county jails. Although my data do not speak to the ultimate implementation of AB 109, the processes revealed have practical implications for the reform goal of decarceration by rationalizing distinct resource allocations at an early stage in the implementation process.     

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.     

Tracing an Outline of Legal Complexity

Autopoiesis and systems theory are terms often treated as synonymous by lawyers. This sleight‐of‐phrase elides the space between autopoiesis and systems theory, removing its content. Within this eliminated space there exist numerous understandings of systems approaches in law; one such understanding is complexity theory. Complexity theory entails a very different systems view of law to that of autopoiesis. In this paper I explore the concepts of complexity and their relevance to law. In tracing an outline of complexity, a number of contradictions, paradoxes, and additional questions are exposed which require further detailed analysis in the future.