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.     

Legal Socialization of Children and Adolescents

Research on children and the law has recently renewed its focus on the development of children's ties to law and legal actors. We identify the developmental process through which these relations develop as legal socialization, a process that unfolds during childhood and adolescence as part of a vector of developmental capital that promotes compliance with the law and cooperation with legal actors. In this paper, we show that ties to the law and perceptions of law and legal actors among children and adolescents change over time and age. We show that neighborhood contexts and experiences with legal actors shape the outcomes of legal socialization. Children report lower ratings of legitimacy of the law and greater legal cynicism when they view interactions with legal actors as unfair and harsh. We show that perceived legitimacy of law and legal authorities shapes compliance with the law, and that these effects covary with social contexts including neighborhood. We identify neighborhood differences in this relationship that reflect differential experiences of children with criminal justice authorities and other social control agents. The results suggest that legal actors may play a role in socialization processes that lead to compliance with or rejection of legal and social norms. An erratum to this article is available at .     

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.     

‘Not without the Consent and Goodwill of the Common People’: The Community as a Legal Authority in Medieval Sweden

The article investigates the legal authority of the people in later medieval Sweden. Three features are especially focused on. The first aspect of communal legal authority is the representation and participation of the local laity in the judicial process as co-judges, members of the nämnd, the Swedish equivalent of the jury, or town councillors. They also acted as surveyors, compurgators and inspectors in legal disputes. The second aspect is the role of the community, the people of the province, as lawmakers. Finally, the article looks at the role of medieval Swedish communities in choosing judges, juries and parish priests as well as electing kings. The article argues that the legal authority of the people in medieval Sweden was influenced by and reformulated through the church by learned doctrines on majority decisions and the quod omnes tangit maxim. After the Middle Ages, the nämnd and the representation of the peasant estate at parliament became some of the constituents of the national legal identity of Sweden vis-à-vis other countries.     

Justice by Other Means: Venue Sorting in Parole Revocation

We consider the factors that shape venue sorting, the process by which a legal case can be handled through different organizational arrangements with distinct procedures, institutional cultures, and sanctioning constraints. The empirical area for our investigation of venue sorting is California's parole revocation system, in which parolees accused of new crimes can be returned to prison by either criminal courts or the parole board. We find that seriousness of the alleged offense partially predicts the venue through which parolees are sanctioned. However, venue sorting is further explained by decision makers' perceptions of parolee threat, as well as concerns about organizational efficiency and legitimacy. We conclude by discussing how these findings may relate to the general phenomenon of venue sorting across a range of legal situations.     

The Making and Unmaking of Feminicidio/Femicidio Laws in Mexico and Nicaragua

This article examines the contested process of law‐making related to the killing of women which resulted in the criminalization of feminicide (feminicidio) and femicide (femicidio) in Mexico and Nicaragua, two countries in which feminists engaged in legal activism to increase state accountability for gendered violence. Through comparative analysis, we demonstrate the importance of (1) the interaction between shifting local political conditions and supranational opportunities and (2) the position of feminist actors vis‐à‐vis the state and its gender regime in shaping regional variation in the making of laws concerning gendered violence. In Mexico, the criminalization of feminicidio resulted from a successful naming and shaming campaign by local feminist actors linked to litigation in various supranational arenas, and the intervention of feminist federal legislators. In Nicaragua, the codification of femicidio resulted from the state's selective responsiveness to feminist demands in a moment of narrow political opportunity within an otherwise highly consolidated regime. We also examine the unmaking of these laws through their perversion in practice (Mexico) and their intentional undermining (Nicaragua) at the hands of the state. Our analysis demonstrates how states' decisions to enact legislation against gendered violence does not occur solely because they are invested in international legitimacy, but also in response to states' shifting acceptance of the legitimacy of supranational authority itself.     

Becoming a Threat: The Burqa and the Contestation Over Public Morality Law in France

Through an examination of legislative debate and court opinions, this article illustrates that the French understanding of public order policing as a bulwark of freedom and national sovereignty deeply informed the development of (and contestation surrounding) the 2010 ban on all facial coverings in public. This ban notably includes the burqa or niqab, garments worn by a small minority of Muslim women in France. This article has two aims. The first is to expand on the sociolegal argument about the contested nature of rights protections and constitutional constraints on legislative authority by highlighting how a nation's legal culture can profoundly shape that contestation. The second aim of this article is to show, through a technique called legal archaeology, how longstanding French views on rights confront current European‐inspired alternative views that would give more weight to individualistic protections against state action than has traditionally been the case in France.     

Membership and its Privileges: the WTO, Civil Society, and the Amicus Brief Controversy

Abstract: In a series of rulings, beginning with the notorious Shrimp/Turtle dispute, the high court of the WTO, the so‐called Appellate Body, has ruled that it, as well as the panels of first instance, may, on a discretionary basis, accept and consider amicus curiae briefs from, inter alia, non‐governmental organisations and private individuals. This has been highly controversial and subject to wide and intense criticism by trade diplomats who are the political representatives of WTO Member states in Geneva; the officials have reacted with anger and hostility to the notion that governments are not exclusive gatekeepers of access to the WTO dispute settlement tribunals. This article shows that the decision that amicus briefs are admissible at the discretion of the adjudicator has a sound basis in the legal framework for WTO dispute settlement, as well as conforming to trends in the practice of international courts and tribunals more generally. The article examines various ‘due process’ issues concerning the modalities for acceptance and consideration of amicus briefs and how they have been so far dealt with by the Appellate Body, as well as how they are handled in certain proposals for reform of the legal framework of WTO dispute settlement, the Dispute Settlement Understanding (DSU).     

Regulatory Jurisdiction and the WTO

The WTO is not explicitly concerned with the problem of regulatoryjurisdiction in connection with prudential regulation (as opposedto industrial policy regulation). However, as the WTO has addressedincreasingly complex regulatory barriers to trade, it has developedseveral devices that have the implicit effect of allocatingregulatory jurisdiction among states.This article reviews afew illustrative cases in WTO law, including Helms–Burton,Shrimp, and Gambling. This review suggests how these cases maybe understood as dealing with allocation of regulatory jurisdiction.Negative integration rules such as national treatment or proportionalitymay serve as devices applied by tribunals for allocation ofregulatory authority. The WTO has very limited rules of positiveintegration—whereby states either harmonize regulationor agree on more specific allocations of regulatory authority,such as mutual recognition. However, it has developed a modestdegree of capacity to engage in positive regulation, or to referto positive integration rules developed in other contexts, suchas Codex Alimentarius. Finally, this article examines theoreticalbases for allocating and reallocating regulatory jurisdictionin order to establish a framework by which to analyse the roleof the WTO in this context.     

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 Welcome Conversation: Toward a New Historiography of Intellectual Property

This essay considers what tools should be used to study the legal history of intellectual property. I identify three historiographical strategies: narration, contest, and formation. Narration identifies the diverse “narrative structures” that shape the field of intellectual property history. Contest highlights how the inherent instability of intellectual property as a legal concept prompts recurrent debates over its meaning. Formation recognizes how intellectual property historians can offer insight into broader legal history debates over how to consider the relationship between informal social practices and formalized legal mechanisms. I consider Kara W. Swanson's Banking on the Body: The Market in Blood, Milk and Sperm in Modern America (2014) in light of these historiographical strategies and conclude that Swanson's book guides us to a new conversation in the legal history of intellectual property law.     

Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU

Against the background of the reinforcement of the EU executive pursuant to the post‐2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an executive body's discretion to make policy choices and its discretion when conducting technical assessments. This distinction, which arises out of the current judicial paradigm for discretion, has contributed to the re‐allocation of executive authority within the EU (sanctioned in UK v Parliament and Council and Gauweiler v Deutscher Bundestag). The article traces the distinction's roots in legal conceptions that have shaped legal‐administrative thinking since the early days of the Etat de Droit or Rechstaat. It proposes a public‐interest‐regarding conception of discretion where, in an institutional context where courts’ reviewing role may be limited, discretion's relationship to law is a matter of how legal norms may operate in the spheres of discretion that they attribute to decision‐makers, rather than how courts may review an exercise of discretion.     

Loosing the Dragon: Charismatic Legal Action and the Construction of the Taiping Legal Order

This article develops the notion of legal charisma by analyzing the Taiping Rebellion in mid-nineteenth-century China. The concept of legal charisma seeks to capture those normally inchoate aspects of law that transcend its institutionalized incarnations and empower its subjects to act out visions of the universal, often in anarchic and unpredictable ways. The article further suggests that such charismatic legal behavior, in spite of its anarchic qualities, provides an important means through which systems of legal authority revitalize and strengthen their hold over legal subjects. The Taiping Rebellion provides an example of both these facets of legal charisma; the rebellion drew on visions of collective empowerment inherent in a newly articulated legal code to act out a challenge to existing social institutions—even as this same code came to assert an ever-tightening grip on the lives of the Taiping population.     

Legal Transnationalism: The Relationship between Transnational Social Movement Building and International Law

This article examines the compelling enigma of how the introduction of a new international law, the North American Agreement on Labor Cooperation (NAALC), helped stimulate labor cooperation and collaboration in the 1990s. It offers a theory of legal transnationalism—defined as processes by which international laws and legal mechanisms facilitate social movement building at the transnational level—that explains how nascent international legal institutions and mechanisms can help develop collective interests, build social movements, and, ultimately, stimulate cross‐border collaboration and cooperation. It identifies three primary dimensions of legal transnationalism that explain how international laws stimulate and constrain movement building through: (1) formation of collective identity and interests (constitutive effects), (2) facilitation of collective action (mobilization effects), and (3) adjudication and enforcement (redress effects).     

Positive Law and Systemic Legitimacy: A Comment on Hart and Habermas*

Abstract
The author revisits H. L. A. Hart's theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of "critical legality," a concept coined to parallel Hart's "critical morality," and an expanded understanding of the "external" and "internal" perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of "lawless" regimes and "law's imperialism."     

A test of Sprinzak’s split delegitimization’s theory of the life course of far-right organizational behavior

This article applies Sprinzak’s theory of split delegitimization to the American far-right. We examine a sample of 30 violent and 30 nonviolent far-right groups for each year of their existence, drawn from the Extremist Crime Database, and explore the violent and legal behavioral patterns over their lifecycle. Sprinzak hypothesized that far-right groups undergo a radicalization process through three stages, conflict of legitimacy, crisis of confidence, and crisis of legitimacy. He predicted that terrorism would occur at the peak of group radicalization or during the third stage. Results supported Sprinzak’s conceptualization of conflict of legitimacy and crisis of confidence stages. Groups initially selected nongovernment targets, but after experiencing disillusionment with the ruling regime, they equally attacked government and nongovernment targets. Importantly, prolonged and increasingly violent acts against government targets were not observed.     

The Persistent Significance of Jurisdiction*

According to Joseph Raz's sources thesis, the existence and content of authoritative directives must be identifiable by resort to the social fact of their provenance from a de facto authority, without regard to any of the normative considerations that the authority in question is supposed to rely on in its judgment. This article argues that the sources thesis fails to account for the role of jurisdictional considerations (namely, considerations about the scope of a de facto authority's power) in the identification of valid law. It examines a legal system with a legislature and courts and a practice of constitutional review of legislation by the courts for its conformity with fundamental rights and argues that the special normative status of (at least some) authoritative directives in this legal system depends on respect for jurisdiction. An assessment of whether an authority has stayed intra vires involves recourse to the normative considerations that it is the authority's job to weigh up. This criticism of the sources thesis highlights the importance of incorporating jurisdiction into our philosophical accounts of legal authority.     

Bodies of Law: the Divine Architect,Common Law and the Ancient Constitution

This article addresses the architecture of the four Inns of Court inLondon as repositories for the body of law (corpus iuris). Thebuildings are perceived as visual representations of the unwrittenconstitution; evidence that the sign, not the text, remains thepredominant form through which the constitution manifests its content.It is in this context that the self-governing Inns are interpreted asmicrocosms of the City of God, envisaged by Saint Augustine andprefigured in ancient Greece by the Republic of Plato. The Innssynthesise these classical and Christian precepts; thereby creatinga unique commonwealth whose Utopian ideals are based on the applicationof Justitia, or righteousness: an ethical rather than alegal concept which underpins the English constitution. The argumentproposes a correlation between architectural development at the Inns andthe challenge posed to the institutional authority of the law by the newlearning of the Renaissance. It is the semiotics of legal architecturerather than its historical provenance which is central to my analysis. Iattempt to comprehend the effect of the influences outlined above on theform and content of the common law, the legal institution and theancient constitution.