“Critical Legal Histories Revisited”: A Response

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high‐level official law to everyday local law are distinct issues. CLH is mostly moot today, since social‐legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.     

The History in “Critical Legal Histories”: Robert W. Gordon. 1984. Critical Legal Histories. Stanford Law Review 36:57–125

This commentary explores Robert Gordon's “Critical Legal Histories” from the perspective of the discipline of history. It argues that we are still stalled at the intellectual juncture that Gordon described so well twenty‐five years ago because functionalism and the resulting problems that Gordon addresses in the area of sociolegal studies also pervade the discipline of history. The results reinforce the divide between sociolegal studies and other kinds of historical studies that tend to inhibit the conceptual transformation that Gordon advocates and to marginalize legal studies within the discipline of history.     

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of “weak” and “strong” pluralism has to be reassessed because “weak” jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's societal constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework.     

Of Mandarins,Legal Consciousness,and the Cultural Turn in US Legal History: Robert W. Gordon. 1984. Critical Legal Histories. Stanford Law Review 36:57–125

This article traces the impact of Robert Gordon's “Critical Legal Histories” on scholars writing at the intersection of law and history. While Gordon's central claim about the constitutive character of the law has come to serve as a working assumption in the field, the case he made for the intellectual history of doctrine as articulated by legal mandarins has proven less influential in the twenty‐five years since the article was published. Instead, legal historians have focused their attention on the interaction between official and lay forms of law‐making with a decided emphasis on popular legal consciousness. For precisely this reason, the time may be ripe for reconsideration of mandarin materials, not only for what they have to tell us about the dynamics of cultural change, but also as sources of insight into basic puzzles of the human condition that have tended across time to be expressed in and through legal forms.     

The “Right Paper”: Developing Legal Literacy in a Legal Self‐Help Clinic

Legal self‐help is the fastest‐growing segment of legal services in the United States, and a significant addition to the repertoire of programs aimed at opening up access to justice in the civil legal system. Few studies, however, have examined how such services work in practice. Through ethnographic research and analysis of meetings between unrepresented litigants and attorneys offering advice in a legal self‐help clinic, this article expands the empirical investigation of access to justice to consider what legal self‐help looks like in actual practice. In this article, I follow the concept of the “right paper” to analyze the process through which legal self‐help litigants develop legal literacy, including the role of lawyers in helping them to do so. The article concludes by discussing what such practices reveal about recent efforts to open up access to justice and also about the dynamics through which people come to think about law and, especially, how to use it.     

European “Freedoms”: A Critical Analysis

Faced with the present migrant crisis and the dismal record of Europe in protecting vulnerable refugees’ and migrants’ rights, what could be the view of the moral philosopher? The contrast between the principles enshrined in the European Charter of Fundamental Rights and the reality of present policies is shocking, but more scrutiny will show that it is the result of a larger trend towards an understanding of freedom mostly in economic terms, at a time when economists such as Amartya Sen have revised their approach to economic growth and prosperity, noting the central role played by a much richer conception of freedom. The paper will scrutinize these inconsistencies and the conception of the person from which they derive and will provide an alternative and more coherent moral vision that could strengthen the legitimacy of the European Charter, at a time of growing dissatisfaction and so-called democratic deficit. Such a vision could help reconnect the Charter with a conception of the human person as in need not solely of passive legal protection, but also of active promotion of her self-respect and capabilities, and of her aspiration to a valuable life.     

“We Don't Believe in Transitional Justice:” Peace and the Politics of Legal Ideas in Colombia

This article draws on law and society theories on the circulation of legal ideas to explain the instrumentalization of transitional justice in Colombia. Most scholarship explains transitional justice as a theoretical framework or as a set of instruments that helps redress mass violence. In contrast, this study reveals that the idea serves as a placeholder for different political actors to promote their respective interests. Drawing on over fifty interviews, the study suggests that the power of transitional justice lies in its malleability, which is both its strength and its weakness, as those with different political agendas can appropriate the idea in contradictory ways. The findings emphasize that understanding transitional justice requires a turn from abstract analyses that either take the idea for granted or try to define its meaning toward examining how people on the ground understand the idea, and how they translate those understandings into political action.     

“Scared Straight”: Ideology and the media

One of the more widely publicized presentations about crime is “Scared Straight,” a documentary about a program in which juveniles visit inmates in a New Jersey penitentiary. It is the contention of this article that this film and the accompanying media coverage of it convey an ideology message concerning crime and criminals. Crime is presented as a matter of individual choice that has little relationship to any social variables. Criminals are portrayed in a one-dimensional manner as evil, vicious, and barely human. The documentary is a success because these images of crime and criminals conform to existing stereotypes. Based on these distorted images, the film and media coverage “market” a simplistic solution to crime that is compatible with their presentation of the crime problem.     

“When They Come for You”: Legal Mobilization in New Authoritarian Russia

As of 2012, the Russian State Duma passed a string of repressive laws on nongovernmental organizations (NGOs), surveillance, and high treason. Under this “new authoritarian” regime, a growing number of Russians are investigated by the security services or put on trial for high treason. NGOs face selective prosecution and surprise inspections. While we know how lawyers use legal mobilization in democratic regimes where they can expect courts to be fair, legal mobilization remains understudied in regimes moving toward authoritarianism, where authorities pass repressive laws but enforce them erratically. Drawing on interviews with Russian lawyers, this article examines how lawyers represent two victim groups of state coercion: Russians under investigation for treason and prosecuted human rights NGOs. By examining how lawyers make strategic choices while coping with unfair courts, the random enforcement of laws, and shrinking resources, this article argues that state coercion does not deter lawyers from legal mobilization at domestic courts and the European Court of Human Rights. Instead, repressive laws push lawyers to reinvent their everyday practices to counter repressive legislation and conviction bias in the criminal justice system.     

Tunisia's “Revolutionary” Lawyers: From Professional Autonomy to Political Mobilization

On January 14, 2011, after twenty‐three years in power and one month of popular protest demanding his resignation, President Ben Ali fled Tunisia. Lawyers, wearing their official robes, had marched frequently in the uprising's demonstrations. By engaging with and supporting the uprising, lawyers—both the profession in general and the bar's leadership—gained considerable symbolic influence over the post‐uprising government that replaced Ben Ali's regime. This article outlines the various forms of political lawyering undertaken by Tunisian lawyers and their professional associations from Tunisia's independence to post‐uprising transitions. We demonstrate that economic concerns, professional objectives, and civic professionalism contributed to the collective action of Tunisian lawyers before and after the uprising. Tunisian lawyers moved beyond the realm of their profession to adopt a role as overseers of the post‐uprising government.     

The Mechanisms behind Litigation's “Radiating Effects”: Historical Grievances against Japan

Scholars argue that litigation can have positive and negative “radiating” or indirect effects for social movements, irrespective of formal judicial decisions. They see litigation as a dynamic process with distinctive features yet nonetheless intertwined with advocacy in other forums. Litigation can indirectly shape collective identities, reframe debates, or provide political leverage. However, the mechanisms behind these radiating effects are poorly understood. Through an analysis of lawsuits and related activism by Korean survivors of Japanese actions in the first half of the twentieth century, this article disaggregates the mechanisms behind litigation's productive indirect effects. It theorizes and illustrates mechanisms such as attribution of similarity, brokerage, issue dramatization, political cover, and intergroup discussions. These mechanisms help us understand how litigants obtain litigation's indirect effects and thus also the broader impact of postwar compensation lawsuits in East Asia, despite few judicial victories. The article contributes non‐Western and transnational cases to scholarship on litigation's indirect effects.     

A Vision of Social‐Legal Change: Rescuing Ehrlich from “Living Law”

The hundredth anniversary of the original publication of Eugen Ehrlich's Fundamental Principles of the Sociology of Law is nearly upon us. The book earned high praise from Oliver Wendell Holmes, Roscoe Pound, and Karl Llewellyn as one of the outstanding works of its time. Ehrlich has been identified as an early legal realist, a pioneering figure in legal sociology, and a leading theorist of legal pluralism. In this retrospective review, I explain the strengths and weaknesses of this classic book. Ehrlich articulated an unsurpassed account of dynamic social‐legal change, an account that remains fresh and timely today.     

Universal Legal Concepts? A Criticism of “General” Legal Theory

Abstract. General theory of law (general jurisprudence, allgemeine Rechtslehre) has often claimed to deal with general or universal concepts, i.e., concepts which are deemed to be common to any legal system whatsoever. At any rate, this is the classic determination of such a field of study as provided by John Austin in the nineteenth century—a determination, however, which deserves careful analysis. In what sense, indeed, can one assert that some legal concepts are common to different legal systems? And, above all, in what sense can one assert that some concepts are common to different languages and cultures? My paper sets out to discuss such questions—although, obviously, they are too complicated to be answered in a single paper. The first section reconstructs the Austinian argument for general jurisprudence by placing it in its historical context. The second section tries to apply to legal concepts some suggestions derived from the contemporary debate on conceptual relativism. The third section, returning to the Austinian problem, comes to the following conclusion: Even if conceptual relativism were true and there were no general or universal legal concepts, this would not invalidate in any way the didactic and scientific value of (general) theory of law.     

Rules,Institutions, Transformations. Considerations on the “Evolution of Law” Paradigm

The article's main objective is to test the merits of the evolutionary paradigm as it has been applied first to social phenomena and then more specifically to the legal domain. In a preliminary move, a set of the available concepts of law is worked out. A discussion of the idea of evolution and of its use in the social sciences follows. Functionalism and systems theory are scrutinized, with a close eye to the new doctrine of “autopoiesis.” Once an institutional and normative concept of law is agreed upon, attempts to introduce an “evolutionary” paradigm are deemed—the article contends—to be unfruitful. The article concludes that, if law needs a metaphysics, it should be one which allows for change, transformation and the emergence of the radically new. A social universe without gaps, all possible forms of which are determined from the beginning, will end up as the opposite of what we are used to considering as the practice of law.     

Machiavelli,Guicciardini and the “Governo Largo”

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.     

The Myth of Universality: The UNESCO “Philosophers’ Committee” and the Making of Human Rights

This article reexamines one of the most enduring questions in the history of human rights: the question of human rights universality. By the end of the first decade after the end of the Cold War, debates around the legitimacy and origins of human rights took on new urgency, as human rights emerged as an increasingly influential rubric in international law, transnational development policy, social activism, and ethical discourse. At stake in these debates was the fundamental status of human rights. Based in part on new archival research, this article offers an alternative interpretation of the rediscovery by scholars in the late 1990s of a 1947 UNESCO survey that purported to demonstrate the universality of human rights through empirical evidence. The article argues that this contested intellectual history reflects the enduring importance of the “myth of universality”—a key cultural narrative that we continue to use to find meaning across the long, dark night of history.     

Karl Olivecrona's Legal Philosophy. A Critical Appraisal*

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy.     

“Critical Empiricism” in American Legal Studies: Paradox,Program, or Pandora's Box?

This essay was originally presented at the Conference on American and German Traditions of Sociological Jurisprudence and Critical Legal Thought organized by the Center for European Legal Policy, Bremen, Federal Republic of Germany, July 10-12, 1986. Subsequent versions were discussed at the Department of Sociology, Northwestern University (February 1987) and the Workshop on Legal Theory at the University of Virginia Law School (March 1987). Comments by participants at these events, members of the Amherst Seminar, Boaventura Santos, Kristin Bumiller, and G. Edward White are gratefully acknowledged. An earlier version of the paper appears in Joerges & Trubek, eds., Critical Legal Thought in Germany and America: A German-American Debate (Baden-Baden: NOMOS, 1989).     

THE “TRUE” JUVENILE OFFENDER: AGE EFFECTS AND JUVENILE COURT SANCTIONING

Age is the only factor used to demarcate the boundary between juvenile and adult justice. However, little research has examined how age guides the juvenile court in determining which youth within the juvenile justice system merit particular dispositions, especially those that reflect the court's emphasis on rehabilitation. Drawing on scholarship on the court's origins, attribution theory, and cognitive heuristics, we hypothesize that the court focuses on youth in the middle of the range of the court's age of jurisdiction—characterized in this article as “true” juveniles—who may be viewed as meriting more specialized intervention. We use data from Florida for court referrals in 2008 (N = 71,388) to examine the decision to proceed formally or informally and, in turn, to examine formally processed youth dispositions (dismissal, diversion, probation, commitment, and transfer) and informally processed youth dispositions (dismissal, diversion, and probation). The analyses provide partial support for the hypothesis. The very young were more likely to be informally processed; however, among the informally processed youth, the youngest, not “true” juveniles, were most likely to be diverted or placed on probation. By contrast, among formally processed youth, “true” juveniles were most likely to receive traditional juvenile court responses, such as diversion or probation.