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.     

Jurist in Context: William Twining in Conversation with David Sugarman

This discussion derives from extended conversations between William Twining and David Sugarman in which William talks about his latest book, Jurist in Context: A Memoir (JIC). JIC recounts the development of William's thoughts and writings, addressing topics central to his life and research. The dialogue conveys and extends the arguments on a selection of the topics addressed in the book, engaging with issues of particular interest to readers of this journal. Here, William adds a more personal commentary to his formal publications. The conversation facilitates reflection on issues such as law teaching and legal scholarship; the meaning, use, and limitations of ‘law in context’; and the role and character of jurisprudence. It also offers a fascinating window on the development of, and the struggles surrounding, legal education and academic legal thought over the second half of the twentieth century and the early part of the twenty-first.     

Levola Hengelo BV v Smilde Foods BV: The Hard Work of Defining a Copyright Work

The Court of Justice of the European Union's judgement in Levola Hengelo BV v Smilde Foods BV ruled that the taste of food cannot be protected as a copyright work under EU copyright law. This note describes the issues in the primary dispute concerning the claim of copyright in the taste of cheese, the reasoning of Advocate General M. Wathelet who advised the CJEU, and the reasoning of the CJEU in its broad concurrence with the AG. It then critiques the CJEU's judgement, which is surprisingly brief, considering the gravity of the question, which probes the boundaries of the copyright work under EU law. The note explains the many opportunities that were overlooked by the court in its brief judgement, attempts to unravel some of the more ambiguous aspects of the judgement, and assesses the merit and utility of the court's primary pronouncement that a copyright work must be objectively identifiable.     

Beyond the European void? Reflections on Peter Mair's legacy

Peter Mair was one of the world's leading scholars of party politics. Though he wrote at some length about the European Union, there has been no systematic exploration of the implications of his comparative work on political parties for European integration. His writings on the EU have generally been studied in isolation from his wider oeuvre, with the result that we have missed the important analytical and logical connections between Mair's work on parties and his writings on the EU. This article argues that Mair's path‐breaking middle‐range theoretical and empirical work on the decline of party democracy can form the basis of a radical reappraisal of the project of ‘ever closer union’. The article studies Mair's arguments against the backdrop of more recent empirical evidence and evaluates the normative implications of his work for the future of the European project.     

Alf Ross on the Nature of Law

In his work, On Law and Justice, Alf Ross sought to explain law in scientific/empirical terms, in terms that would require no recourse to what he called “metaphysics” or “idealism.” The result is a sort of translation of legal rules and official actions into propositions of behavior, predictions of behavior, and shared ideology. The present work raises questions about the tensions within Ross's work(s), and discusses the places where Ross's analysis seems to fall short of its ambitions. In the course of the discussion, the article considers issues relating to legal mistake, explanations of judicial behavior, and different types of normativity.     

Criminal Punishment,Labor Market Outcomes,and Economic Inequality: Devah Pager's Marked: Race,Crime, and Finding Work in an Era of Mass Incarceration

A growing empirical literature examines the role of incarceration in labor market outcomes and economic inequality more broadly. Devah Pager's book, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (2007), offers compelling evidence that employment opportunities for former prisoners—especially black former prisoners—are bleak. I review Pager's methods and findings, place them in the context of previous work, and discuss the relation of race to a criminal record. I then explore several lines of related research that investigate the increasing reach of criminal punishment into various social realms. One goal of this essay is to draw research on economic inequality into the law and society literature.     

When Social Norms and Pressures Are Not Enough: Environmental Performance in the Trucking Industry

Why do some business firms and not others work hard to advance regulatory values such as environmental protection and comply with regulations? Previous research indicates that business firms are influenced in that regard by a number of variables—not merely the perceived likelihood of legal punishment but also the risk of negative reactions by societal actors (which we call “social license pressures”) and the intensity of managers' commitment to norms of law‐abidingness and environmentalism. This article reports on a study of control of diesel emissions in the trucking industry, a highly competitive market with many small firms, mobile pollution sources, expensive “best control technologies,” and weak regulatory demands. In contrast to findings in studies of large firms, we found that social license pressures on small trucking firms are minimal. Trucking companies' environmental performance—good and bad—flows from managers' economic choices, which are influenced by their particular market niche. In such highly competitive, small‐firm market contexts, these findings imply, significant improvement in environmental performance is not likely without strong direct regulatory pressures.     

Dr Bonham's Case and ‘void’ statutes

There are two opinions on Coke's remarks in Dr Bonham's Case concerning ‘void’ statutes. Firstly that Coke was assuming a power to declare statutes void as incompatible with some form of higher order law; secondly that Coke was merely asserting a power to interpret statutes. This article suggests that the range of meanings of the word ‘void’ in early-modern English law undermines the foundations of the first position, and that there is no good evidence suggesting a natural law position. Coke's method of statutory interpretation is then explored, showing that his report accords with contemporary jurisprudence on grants of judicial power and parliamentary affirmations of earlier acts, and that the word ‘void’, in this context, had a purely inter partes meaning.     

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.     

Thomas Aquinas and Viscount Stair: the Influence of Scholastic Moral Theology on Stair's Account of Restitution and Recompense

This article examines the impact of scholastic moral theology on aspects of Stair's Institutions of the Laws of Scotland. It is argued that both Stair's general concept of justice and his account of the ‘obediential’ obligations of restitution and recompense were influenced by Aristotelian philosophy and Thomist moral theology. The complex interaction in Stair's thinking of Presbyterian religion, scholastic philosophy and a commitment to the rational natural law are sketched in order to shed light on the historical and cultural context within which he wrote. The result is a more complex picture of the influences which informed the writing of the Institutions.     

Koushal v Naz: Judges Vote to Recriminalise Homosexuality

In Koushal v Naz the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Indian Supreme Court into a populist, quasi‐legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter‐majoritarian role. The second relates to the sheer size of the Court's docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy's inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly‐reasoned judgments and a breakdown of stare decisis.     

Dworkin and Phenomenology of the “Pre‐Legal”?

Ronald Dworkin states in his preface to “Law's Empire” (1986) that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary for law, and that is a Phenomenology of the Pre‐Legal.     

From Public Sociology to Public Philosophy: Lessons for Law and Society

The late Philip Selznick's final book, A Humanist Science, examines the role of values and ideals in the social sciences, including the study of law and society. Throughout his academic career, Selznick was committed to what he called “legal naturalism,” a sociological version of the natural-law perspective, while his critics continue to adhere to various forms of positivism. But the age-old opposition between natural law and legal positivism today may be giving way to the quest for public sociology—a sociology that promotes public reflection on significant social issues and thus functions as a moral and political force. A Humanist Science ends with a strong plea for public philosophy. Public philosophy overlaps with public sociology but is a much stronger concept. Selznick's message of public philosophy may be another of his enduring contributions to the field of law and society.     

Legal education and early career mentoring: mid-career attorneys' pro bono commitment

Much extant research suggests that students who enter law school highly enthusiastic about public interest law and pro bono work often take mainstream jobs with minimal participation in pro bono activities. Frequently, these studies place some of the blame on law schools. This study, however, suggests that law schools, as well as mentors in first post-graduation jobs, might positively affect attorneys' level of commitment to pro bono work. This longitudinal study is unique in that it includes measures of students' attitudes during law school and in mid-career. It raises the possibility that attorneys whose level of commitment to pro bono work did not decrease since law school were substantially influenced by their law school training and early career mentors. Although some students will leave law school with less dedication to public interest law and pro bono work, this study offers hope that, through legal education and mentorship, other students will maintain their strong commitment to helping poor clients.     

A Cosmopolitan Philosophy of International Law? A Realist Approach

Analyzing different works and in particular Habermas' reflection on Kant, the author reconstructs, first, his approach to international law and his political and legal cosmopolitanism. Second, he presents some critical observations on Habermas' cosmopolitanism in the context of his more general discursive theory of law and state. In this perspective, he discusses the problems of peace and of the role of the United Nations, the strategy of protection of human rights, and the question of world citizenship. He argues that Habermas' cosmopolitanism is a radicalization of Kantian tradition based on a centralization of international power and a cosmopolitan law. Finally, he develops realist arguments in favour of a non-globalistic conception of international law. 1 Abstract by Giorgio Bongiovanni.
     

G. A. Cohen's Conception of Law: A Critique*

This note will challenge G. A. Cohen's view of the interaction between legal systems and economic structures; such interaction raises the so-called problem of legality, which Cohen sets out to solve in the eighth chapter of Karl Marx's Theory of History (Cohen 1978, 216–47). In the course of this note, we shall interrogate the presumed rigor of Cohen's theory of base/superstructure relations, to which his understanding of law is central. His approach will not be simply destroyed, but will be resituated in a network of problems that can highlight a certain fissure between his aspirations and his performance.     

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.     

Writing Human Rights History—And Social Science Encounters

This review essay on Aryeh Neier's The International Human Rights Movement: A History (Princeton University Press, 2012) discusses Neier's central themes: the origins and maturation of the movement and its effects, including the expansion of human rights and humanitarian law, enhanced criminal accountability for human rights crimes, and the appearance of criminal tribunals, culminating in the International Criminal Court. An overview is interspersed by imaginary conversations between Neier and scholars who speak to his themes, especially legal scholar Jenny Martinez, political scientists Margaret Keck and Kathryn Sikkink, historians Devin Pendas and Tomaz Jardim, and sociologists John Hagan, Daniel Levy, Natan Sznaider, Joachim Savelsberg, and Ryan D. King. Linking a practitioner's account with scholarly analyses yields some benefits of “Pasteur's Quadrant.”     

The Politics of Jurisprudence Revisited: A Swedish Realist in Historical Context

This article argues that juristic theories must be understood in relation to the historical conditions in which they have emerged. This is not to reduce theories to their context but to gain essential insight into their aims, meaning, and scope with the aid of such “external” reference points. Here I use the ideas of the Swedish legal realist Vilhelm Lundstedt to illustrate these claims, choosing his juristic theory for this purpose specifically because it has been so widely seen (at least by non‐Scandinavian interpreters) as deeply puzzling and “extreme.” The article argues that his central ideas are readily intelligible in historical context. But such a contextual examination of juristic ideas also makes it possible to assess what in them can properly travel beyond immediate context: in other words, what insights about the nature of the jurist's task can legitimately be taken from them for more universal application. Lundstedt's work, despite having been largely ignored or excluded from international juristic debate, has something to offer here if seen through a contextualising lens that sets the possibilities for its broader application in sharp relief.     

Punishment and Rights in European Union Citizenship: Persons or Criminals?

While European Union (EU) citizenship has traditionally been key to limiting criminalisation at national level, over recent years crime has become a criterion to distinguish between the good and the bad citizen, and to allocate rights according to that distinction. This approach has been upheld by the EU Court of Justice (CJEU) in its case‐law, where crimes show the offender's disregard for the societal values of the host Member States, and deny his/her integration therein. This article argues that citizenship serves to legitimate criminal law. The Court outlines two—counterposing—types of human being: the law‐abiding citizen and the criminal. The article shows the legal unsoundness of the Court's approach. It does so by analysing and locating the case‐law over a crime–citizenship spectrum, marked at its opposing ends by Duff's communitarian approach to criminal law, on the one hand, and Jakobs' criminal law of the enemy, on the other.