Psychology and legal change

From its inception, research in “law and psychology” has had an explicitly applied focus. In large part, psychologists have studied legal issues and participated as experts in the legal process in order to improve law and enhance the quality of its justice. This article examines whether and how this can be done. A taxonomy of relationships between the two disciplines is presented which characterizes law and psychology research in terms of its potential for legal change. The use of psychology of effect legal change requires a bringing together of both psychological and legal paradigms. But important differences exist between the styles and methods of reasoning, proff, and justfication in psychology and law. The implications of those differences for the use of psychological data in legal change efforts are developed, as are other aspects of “legalism” that may hinder or impede the effectiveness of psychologically oriented law reform. Finally, limitations of a “factual jurisprudence” that derived from the nature of psychological data are examined.     

A Genre-based Approach to the Translation of Private Normative Texts in Legal English and Legal Spanish

This paper aims at clarifying some of the most common issues that legal translators have to face when dealing with the translation of private normative texts, such as contracts or wills, which naturally emerge as the consequence and expression of legal or juristic acts in the scope of private law, in Spanish and English. To comprehend the differences and subtleties regarding legal communication between the common law and the continental law countries (specifically the United States and Spain, respectively), we must unveil some essential clues for their translation and application in the global scope of professional interactions, thus creating a process of inter-legal communication, which takes place through the mutual interpretation and application of two, or more, legal traditions. Through the deployment of a generic or pragmatic analysis at textual or discursive and formal or superficial, strata, of two types of genre within the domain of private law (namely wills and tenancy agreements, or leases) this work aims to prove that both the civil law and the common law private instruments are translatable with respect to each other. An important proviso, however, is that their legal traditions and the genres that constitute the communicative tools of their specialised communities must be duly respected and kept in equilibrium, so that one does not overshadow and obliterate the other. Only in that way can the ??convergence?? of the two traditions truly enrich and strengthen national and international legal culture.     

20世纪初美国法学与心理学的交叉研究及反思

二十世纪初,美国法学进行了一场与心理学的交叉研究尝试。心理学家闵斯特伯格首倡进行法学与心理学的交叉研究,受到著名法学家威格摩尔的激烈反击以及一些心理学家的反对。但是,也有部分心理学家随后开始进行法律行为实验研究及法律心理学研究,法学界的著名学者哈钦斯针对一系列具体主题进行法学与心理学的交叉研究,而威格摩尔在反击之后也开始在这一领域展开研究。此次交叉研究为二战后行为法学派在美国法学界的兴起提供了基础。我们可以由此思考法学对于交叉研究的接受度,以及那个时代心理学影响法学研究的可能。并通过20世纪美国法学各类交叉研究的繁荣,反思我国当下司法实践的现代化变革及法学研究范式的发展。     

法律方法与几个相关概念的比较

在我国法学研究中,法律方法、法学研究方法、法学方法论、法律方法论等概念经常被混淆。文章通过比较法律方法与法学研究方法、法律方法与美国的法律方法课程、法律方法与法学方法论(法律方法论)等概念及其所对应的研究领域,阐明我国的法律方法研究,与世界各国法学界与法律界所关注的法律方法,都是围绕法律人实施法律的工作技艺与思想方法而展开的,重点是研究和探讨法律实施中的各种有效且有益的具体制度与思想方式,这一特点决定了它不同于更为宏观的法学研究方法与法学方法论(法律方法论);同时,由于我国开展法律方法研究迫切需要解决的是与我国法律实施相关的问题,因此,我国的特殊性,决定了我国有关法律方法的研究,主要是针对我国法治建设所面临的具体问题,故而,又不同于美国的法律方法课程。正是在与相关概念的区别中,展现出法律方法研究独特的价值。     

A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England, United States, Germany, France, Denmark, Russia, China, and Islamic legal tradition)

The purpose of this survey is to examine the underlying principles of criminal responsibility in selected common law and continental law jurisdictions as well as in the Islamic legal tradition through the lens of comparative law (legal jurisdictions of England, Canada, United States, Germany, France, Denmark, Russia and China are subject to the legal analysis). By conducting a comprehensive legal analysis of the concept of crime in selected legal jurisdictions, this study reveals the common legal features pertinent to the concept of crime that are shared by the major legal systems of the world. Particular attention has been given to the thorny and much debated area of the subjective element of a crime and the standards employed to demarcate between intentional and negligent conduct. Turning to comparative law as an invaluable tool of legal analysis, the study demonstrates that there are more common characteristics than originally anticipated regarding the concept of crime, as well as the basis of the principle of culpability in such major legal systems.     

Law and the Evolutionary Turn: The Relevance of Evolutionary Psychology for Legal Positivism

In the present essay, I consider the relevance of evolutionary psychology (EP) for legal positivism, addressing the two main traditions in the legal positivist family: (1) the tradition I identify with the works of Hart and Kelsen and characterize as “normativist,” as it tries to describe law as a purely or, at least, as an essentially normative phenomenon, while remaining true to the ideal of scientific objectivity and value‐neutrality; (2) the tradition I broadly refer to as “legal realism,” which equates law with adjudication and “legal science” with the task of explaining judicial behaviour.     

On Myth,Considered as a Method for Legal Thought

The textual form of law relates to language and not to narration but to myth. Law's text does not develop in the temporal sequence of past-present-future, but spreads by analogy of concentric circles. If ‘normal’ myth is a folklore of people then the law is a myth retold by lawyers. For the sake of separation of legal myth from mythology as a whole, law creates its own rituals. In post-modern societies the mythologization of law becomes even more important as the boundaries between legal and lay communities are challenged. Classical legal theories cannot deal with this change and Kafka's The Trial is as good a jurisprudence as any other legal theory. This revised version was published online in November 2006 with corrections to the Cover Date.     

Toward an integration of economic and sociological approaches?

This article answers the question whether sociology of law and law and economics can be unificd into one integrated science. First, it is argued that an integration process inside law and economics has taken place, integrating most schools and partial analyses into one mainstream law and economics. Second, it is argued that there are no natural barriers against an integration of sociology and economics. Purely economic theories cannot and do not exist. What is calledeconomic analysis of law is basically a mixture of, for instance, 70 percent economics, 10 percent sociology, 10 percent psychology, and 10 percent other sciences. In addition, there is no such a thing as a purely sociological concept; concepts are sociological only in the sense that they are invented by people who call themselves sociologists.Nevertheless one should not expect that such a richer social science will lead to fundamentally different predictions and policy recommendations than those derived from the current simplistic economic analysis of law. The aspects studied by sociologists but assumed away by legal economists to date have in most cases no influence on the determination of (optimal) legal rules or on the long-run effects of legal rules.     

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

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

The Traditionality of Statutes*

Abstract. The author begins by sketching the characteristics or elements of every tradition. Some reasons are then suggested for the propensity of so many authors to contrast statutes with other, allegedly more traditional kinds of law. However, it is argued that statutes are deeply embedded, along with customary and judge-made law, in the highly traditional practices of law and that this matters much more than is commonly suspected. The thesis being defended here is not merely that law includes traditions along with rules, principles, maxims, and so on, but rather that legal systems should be understood as traditions, albeit highly complex ones. Not only are ancient legal systems (the Talmudic, for example) held to be traditional; modem legal positive orders are viewed as being traditional too. Finally, the concept of “communities of interpretation” is applied to the contemporary posited statutes which are believed by many to be a distinguishing feature of modem legal systems.     

Theoretical and methodological issues in studying children's capacities in legal contexts

Understanding children's capacities in legal contexts is an urgent priority for psychology and the law. The distinction between capacity and performance is discussed in light of two research goals: (a) identifying children's capacities relevant to law; and (b) identifying the circumstances under which their performance varies. This discussion leads to three fundamental research issues that are explored. First, in addition to general capacity, the effect of specific legal contexts on performance requires investigation. Second, capacities research must take a developmental approach using appropriate, ecologically valid target and comparison samples. Third, legal standards and their inherent developmental assumptions about children's capacities must be operationalized and investigated from both legal and psychological perspectives.     

Accidents,Agency and Asylum: Constructing the Refugee Subject

Refugee law demands that the asylum seeker demonstrate an extremely limited and distorted form of agency that is encapsulated within the legal definition of the refugee. Such a framework also denies the role of the accidental in the refugee experience. I argue that the problem lies at the heart of the legal form, as constructed under capitalism. The sans-papiers show us the potential for refugees themselves to reconstruct a subjectivity that transcends the distorted form of agency and the false dichotomy between the accidental and agency found in law, through their rejection of legal definitions and the re-emergence of themselves as political subjects.     

Don’t Occupy This Movement: Thinking Law in Social Movements

Reflecting on the Occupy movement, particularly Occupy Wall Street, this article begins by addressing two major questions: how are social movements understood by legal academics; and how do social movements engage with law? Our aim is to present an alternative frame to understanding law and social movements. We draw on the work of Jean-Luc Nancy to explore law as both present and constituted in the coming together of persons in common which occurs in social movements. While the Occupy movement does engage with a form of law that is legislated and enacted through the government and legal system of a nation-state, the movement also forms and enacts law as part of its own processes. In this article we shift perspectives and attempt to think law within social movements. This involves a critical reading of some dominant approaches that explore social movements and law. Rather than situate our discussion within boundaries that seek to identify what is inside or outside a law and legal system that is determined and enforced by a nation-state (government and judicial system), our discussion of law involves a re-thinking of law. This law is part of a constant negotiation and it is involved in the dynamic processes of movements. Law involves establishing a limit and tracing this limit, but this limit is un-working itself as soon as it is constituted. The Occupy movements live law by existing not outside the law, but by rethinking the role and function of law in the movement and processes of community.     

Reflections on the sociology of law: A rejection of law as ‘socially marginal’

Rejecting the concept of law as subservient to social pathology, the principle aim of this article is to locate law as a critical matter of social structure – and power – which requires to be considered as a central element in the construction of society and social institutions. As such, this article contends that wider jurisprudential notions such as legal procedure and procedural justice, and juridical power and discretion are cogent, robust normative social concerns (as much as they are legal concerns) that positively require consideration and representation in the empirical study of sociological phenomena. Reflecting upon scholarship and research evidence on legal procedure and decision-making, the article attempts to elucidate the inter-relationship between power, ‘the social’, and the operation of law. It concludes that law is not ‘socially marginal’ but socially, totally central.     

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 Biosemiotic Body of Law: The Neurobiology of Justice

We offer a theory regarding the symbolism of the human body in legal discourse. The theory blends legal theory, the neuroscience of empathy, and biosemiotics, a branch of semiotics that combines semiotics with theoretical biology. Our theory posits that this symbolism of the body is not solely a metaphor or semiotic sign of how law is cognitively structured in the mind. We propose that it also signifies neurobiological mechanisms of social emotion in the brain that are involved in the social and moral decision-making and behavior that law generally seeks to govern. Specifically, we hypothesize that the symbol of a collective human body in the language of law signifies neural mechanisms of pain empathy which generate a virtual, neurally simulated, emotional sense of sharing the feelings or pain of others and of thereby being one-in-body with or virtually equal to them. We speculate that this may be the neural basis of what is signified in legal and political theory as the “body politic” or “sense of equality,” because neuroscience and psychiatry further suggest that such pain empathy may provide the natural, emotional motivation to think and act in a rights-based manner. We conclude that misunderstanding of these neural mechanisms of pain empathy and related misinterpretation of this corporeal symbolism for the same may have long resulted in legal discourse that misinterprets the function of “pain” in the law and misinterprets the associated positive law, specifically the law regarding individual, equality-based rights and criminal justice, in particular, punishment theory.     

Canada as a Semiotic Society: Harold Innis,Roberta Kevelson,and the Bias of Legal Communications

The great Canadian economist/philospher Harold Innis, Marshall McLuhan’s teacher, was also especially interested in the way preserving the common law and multiple interpretive legal perspectives were essential to the preservation of human freedom. He greatly feared the rise of administratively made law as detrimental to the lively political life of free communities. Much of his work on legal theory, in which he urges Canadians to tenaciously protect their complicated legal system, anticipates the legal semiotic of Roberta Kevelson, although they had no knowledge of each other’s work and Innis may only have known of Charles Peirce indirectly. Additional support was provided by the National Science Foundation     

Epinomia: Plato and the First Legal Theory

Abstract. In comparison to Aristotle, Plato's general understanding of law receives little attention in legal theory, due in part to ongoing perceptions of him as a mystic or a totalitarian. However, some of the critical or communitarian themes that have guided theorists since Aristotle find strong expression in Plato's work. More than any thinker until the nineteenth and twentieth centuries, Plato rejects the rank individualism and self‐interest which, in his view, emerge from democratic legal culture. He rejects schisms between legal norms and community values, institutional separation of law from morals, intricate regimes of legislation and adjudication, and a culture of rampant litigation. He rejects the alienation of individuals, from each other and from their communities, that is so easily bred within highly complex political and legal systems. An understanding of his approach to some of the classic questions of legal theory provides insight not only into some central ideas of his own thought, but also into the roots of critical and communitarian critiques of law.     

Relational Embeddedness and Socially Motivated Case Screening in the Practice of Law in Rural China

Based on an ethnographic study conducted in rural China, this article demonstrates that relational embeddedness—that is, concrete and durable relationships among law practitioners, clients, adversaries, and the surrounding communities—holds the key to our understandings of the legal profession's case screening. Over the past decade, legal services in rural China have been commodified significantly. Despite that, relationships with extended families, community members, and local political elites have continued to shape law practitioners’ professional decision‐making. By carefully scrutinizing multiplex relationships involved in legal services, law practitioners seek to meet the practical needs of their personal life, and more importantly, to uphold moral obligations derived from communal life. Seen in this light, the practice of law is an integral part of a moral economy in the countryside. Rather than giving rise to a more progressive form of services, the legal profession's participation in this moral economy often reinforces existing power structures in Chinese society. By introducing the concept of relational embeddedness into sociolegal research, this study unpacks the complex consequences of the recent legal reforms in China; it also enriches our theoretical understandings of related concepts, such as social capital, networking, and guanxi in the practice of law.