Symbolic Power Without Violence? Critical Comments on Legal Consciousness Studies

In this paper I analyze the reception of constructivist social theory in these sociolegal studies. The hypothesis that I want to demonstrate is that despite the importance of their contributions to understanding of law, there is a theoretical ambiguity in these studies. This follows from the fact that they adhere to social theories which are premised on different presuppositions about social relations and thus irreconcilable. To illustrate this ambiguity I will contrast the way that the concept of symbolic efficacy is employed in the work of Pierre Bourdieu, who is frequently cited in the legal consciousness studies as an authorized theoretical reference. I will analyze the basic concepts that underpin the sociolegal studies considered here, discuss the idea of the symbolic in law, and provide a theoretical comparison between Bourdieu and legal consciousness studies.     

Legal Consciousness in Marginalized Groups: The Case of LGBT People

Studies of legal consciousness have flourished over the last few decades, but these studies and the very concept of legal consciousness have recently come under critique. This article uses the case of studies of the legal consciousness of lesbian, gay, bisexual, and transgender (LGBT) people to demonstrate that legal consciousness has been a valuable conceptual tool for exploring experiences of sociolegal marginalization. Research on LGBT people advances the study of legal consciousness without sacrificing a critical stance or reading lack of overt resistance as evidence of law's hegemonic power. Consideration of this research highlights that focusing on marginalized populations is a way to retain a critical edge in legal consciousness research. Future research should include more exploration of the relationship between marginalization and legal consciousness, further theoretical elaboration of the forms and conditions of resistance to law, and greater attention to how social interactions and institutions produce legal consciousness.     

What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon's “Critical Legal Histories”

For more than twenty‐five years, Robert Gordon's “Critical Legal Histories” has been savored by legal historians as one of the most incisive explanations available of what legal history can and should be. Gordon's essay, however, is of significance to the course of sociolegal studies in general. This commentary offers an appreciation, and a critique, of “Critical Legal Histories.” It explores Gordon's articulation of the central themes of critical legal studies, in particular his corrosion of functionalism and embrace of the indeterminacy thesis, and assesses the consequences for sociolegal and legal‐historical analysis of the resultant stress on the contingency and complexity of social life.     

Law's Social Forms: A Powerless Approach to the Sociology of Law

Since the law and society movement in the 1960s, the sociology of law in the United States has been dominated by a power/inequality approach. Based on a sociological distinction between the forms and substances of law, this article outlines a “powerless” approach to the sociology of law as a theoretical alternative to the mainstream power/inequality approach. Following Simmel and the Chicago School of sociology, this new approach analyzes the legal system not by its power relations and patterns of inequality, but by its social forms, or the structures and processes that constitute the legal system's spatial outlook and temporality. Taking a radical stance on power, this article is not only a retrospective call for social theory in law and society research, but also a progressive effort to move beyond US‐centric sociolegal scholarship and to develop new social science tools that explain a larger variety of legal phenomena across the world.     

The penology of racial innocence: the erasure of racism in the study and practice of punishment

In post–civil rights America, the ascendance of “law-and-order” politics and “postracial” ideology have given rise to what we call the penology of racial innocence. The penology of racial innocence is a framework for assessing the role of race in penal policies and institutions, one that begins with the presumption that criminal justice is innocent of racial power until proven otherwise. Countervailing sociolegal changes render this framework particularly problematic. On the one hand, the definition of racism has contracted in antidiscrimination law and in many social scientific studies of criminal justice, so that racism is defined narrowly as intentional and causally discrete harm. On the other hand, criminal justice institutions have expanded to affect historically unprecedented numbers of people of color, with penal policies broadening in ways that render the identification of racial intent and causation especially difficult. Analyses employing the penology of racial innocence examine the ever-expanding criminal justice system with limited definitions of racism, ultimately contributing to the erasure of racial power. Both racism and criminal justice operate in systemic and serpentine ways; our conceptual tools and methods, therefore, need to be equally systemic and capacious.     

Transforming Land‐Taking Disputes in Socialist Asia: Engaging an Authoritarian State

Few studies have responded to the calls by sociolegal scholars to explore how disputes evolve. This article takes up the challenge by examining how intermediaries in socialist Asia resolve land‐taking disputes that are intractable for administrative appeals and courts. Exploring alternatives to state‐based dispute resolution is a pressing issue for conflicts that pit citizens against authoritarian regimes. Using in‐depth interviews, this article investigates how intermediaries such as retired state officials navigate in and around authoritarian regimes, flattening power asymmetries between citizens and land officials. This analysis draws from, links, and advances three literatures that examine dispute resolution in different ways: the sociolegal “naming, blaming, and claiming” literature examines the trajectory of disputes, regulatory studies use legitimacy expectations to analyze how disputants evaluate and prioritize competing regulatory frameworks, and the collective identity literature analyzes how communities respond to disputes. This article contributes to the literature by developing a theoretical framework that explains how intermediaries circumvent conceptual differences and transform disputes. The findings compel researchers to consider the use of intermediaries as an alternative to state‐sponsored dispute resolution in authoritarian settings.     

Strange Bedfellows: How an Anticipatory Countermovement Brought Same‐Sex Marriage into the Public Arena

Since the 1980s, social movement scholars have investigated the dynamic of movement/countermovement interaction. Most of these studies posit movements as initiators, with countermovements reacting to their challenges. Yet sometimes a movement supports an agenda in response to a countermovement that engages in what we call “anticipatory countermobilization.” We interviewed ten leading LGBT activists to explore the hypothesis that the LGBT movement was brought to the fight for marriage equality by the anticipatory countermobilization of social conservatives who opposed same‐sex marriage before there was a realistic prospect that it would be recognized by the courts or political actors. Our findings reinforce the existing scholarship, but also go beyond it in emphasizing a triangular relationship among social movement organizations, countermovement organizations, and grassroots supporters of same‐sex marriage. More broadly, the evidence suggests the need for a more reciprocal understanding of the relations among movements, countermovements, and sociolegal change.     

Regulating Volunteering: Lessons from the Bingo Halls

This article uses charitable bingo to explore the sociolegal regulation of volunteers. Using case studies of two provincial bingo revitalization initiatives in Canada, I explore how charities and government officials manage the tension between regulating and incentivizing volunteers. I show that bingo revitalization plans in Alberta and Ontario increased surveillance of nonregularized workers and failed to protect charity service users from unpaid labor requirements. Moreover, revitalization initiatives reframe the volunteer role to focus on customer service and explaining how charities benefit the community. The potential for bingo volunteering to promote spaces of mutual aid with players will thus likely decline. I suggest that the allied power of charity and state over unpaid workers is increasing, giving charities better‐protected interests in volunteer labor and changing the tasks that volunteers do. The need for more research exploring the interests of volunteers as regulatory stakeholders in their own right is thus pressing.     

Are Judges Street‐Level Bureaucrats? Evidence from French and Canadian Family Courts

Although judges were included in the street‐level‐bureaucracy (SLB) group by Lipsky (1980), sociolegal scholars have barely used this theoretical framework to study them. This article aims to specify their position with respect to SLB in order to bridge the gap between public administration and sociolegal research. Specifically, using a cross‐national ethnography of judicial institutions, it compares family trial judges' practice on the ground in France and Canada. General conditions separate them from the core SLB group: encounters with clients are less direct; discretion is more legitimate. However, French judges are far closer to the SLB group than their Canadian counterparts regarding public encounters and case processing. As such, the accuracy of the SLB framework depends on professional and cultural patterns that combine differently in these two national contexts.     

Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies

The promise of sociolegal research varies for different constituencies. For some legal scholars it has been a promise of sustained commitment to moral and political critique of law and to theoretical and empirical analysis of law's social consequences and origins. To continue to deliver on that promise today, sociolegal studies should develop theory in new forms emphasizing the variety of forms of regulation and the moral foundations on which that regulation ultimately depends. It should demonstrate and explore law's roles in the routine structuring of all aspects of social life and its changing character as it faces the challenge of regulating relations of community not bounded solely by the jurisdictional reach of nation states.     

New Legal Realism and the Ethnography of Transnational Law

The new legal realism builds on the strengths of the legal realism of the early twentieth century, viewing law as a set of social processes embedded in historical and political contexts. As it addresses sociolegal phenomena of the early twenty-first century, however, the new legal realism is more attentive to the effects of transnationalism, legal culture, and legal consciousness, and the way ideas and norms travel and are adopted around the world. Asking questions of this kind requires new, more multi-sited or deterritorialized methods of scholarship. This article explores these new perspectives and their methodologies through an examination of the use of human rights in the international movement against violence against women.     

Breaking the Divide: Setting Environmental Precedent in the Chicago River

Here we argue that sociolegal processes can not only restructure social relationships through setting legal precedent but can also restructure socioenvironmental relationships through setting what we call “environmental precedent.” By environmental precedent we mean the environmental consequences of legal processes, environmental consequences that then become the new, dynamic material reality for future legal processes. We apply the concept of environmental precedent to a legal history of the Chicago River, using this case to illustrate how interactions between sociolegal and environmental processes can set environmental precedent in a way that reshuffles the social and material foundations of future legal processes.     

Hearing all sides of the story: The challenge of integrating teaching on sexual aggression into social work qualifying training

Abstract

In the present study we analysed to what extent the categories used in empirical child molester research were sociolegal (based on offence types) or psychopathological (based on nomological systems of psychological types or mental disorders). Based on a systematic Medline and PsycInfo search, 714 empirical studies on child molesters from 1972 to 2004 were analysed with regard to the categories and diagnostic procedures used. The majority of studies used a grouping procedure based on an offence-orientated criterion (child molesters versus others), whereas only a few referred to diagnoses and, hence, to nomological systems utilized in clinical psychology and psychiatry. The results also indicated the presence of extensive classification pluralism and a dominance of publication in specialized forensic journals. Critical consequences of this research practice are discussed with regard to comparability of studies, heterogeneity of study groups, theory development and, particularly, the generalizability of child molester research. Finally, we propose a research strategy that is grounded more profoundly in methodological considerations and a more interdisciplinary orientation in sexual offender research.     

Capitalism and inequality: The negative consequences for humanity

Conclusions This paper has attempted to reveal the degree of inequality which exists within the capitalist world system among nations, among regions of nations, among classes, and among various sexual, racial, and ethnic groups. For themost part these inequalities are the direct and inevitable result of the normal operations of the capitalist mode-of-production. I have attempted to integrate an existant body of literature within a neo-Marxist theoretical perspective. By using such a perspective, I have attempted to document that inequality in the twentieth century is largely rooted in the capitalist relations of production and the normal machinations of the capital accumulation process. I have also tried to show that capitalist inequality is a major factor in determining the physical and psychological plight of the majority of the human race, particularly in the areas of life expectancy, infant mortality, morbidity, physical illness, mental illness, and so forth. The implications of such an analysis are profound and threatening to many. For equality of the human condition to become a reality, and thus for these negative human experiences to be significantly alleviated, would require, it would seem, a major restructuring of our most basic and taken-for-granted political-economic institutions and values. The sanctity of private property ownership would need to be drastically interfered with in order to bring about the qualitative improvement of the living conditions and experiences of the world's peoples. It seems to me that we would have to entertain the notion that private property ownership must be abolished and a social ownership and control of the commanding heights of the economy established as a first giant step towards a humane world.This is a paper presented at the annual meetings of the Canadian Sociology and Anthropology Association, the Learned Societies, May 28–31, 1981, Halifax, Nova Scotia.     

No way out: crime,punishment and the capitalization of power

The United States is often hailed as the world’s largest ‘free market’. But this ‘free market’ is also the world’s largest penal colony. It holds over seven million adults – roughly 5 % of the labour force – in jail, in prison, on parole and on probation. Is this an anomaly, or does the ‘free market’ require massive state punishment? Why did the correctional population start to rise in the 1980s, together with the onset of neoliberalism? How is this increase related to the upward redistribution of income and the capitalization of power? Can soaring incarceration sustain the unprecedented power of dominant capital, or is there a reversal in the offing? The paper examines these questions by juxtaposing the ‘Rusche thesis’ with the notion of capitalism as a mode of power. The empirical analysis raises an enigma: it suggests that the Rusche thesis holds under the normal circumstances of ‘business as usual’, but breaks down during periods of systemic crisis. During the systemic crises of the 1930s and the 2000s, unemployment increased sharply, but crime and the severity of punishment, instead of rising, dropped perceptibly.     

Studying Law by Association: Bruno Latour Goes to the Conseil d'État

This essay provides an overview of actor-network theory (ANT) and its potential interest for sociolegal scholars. It focuses on Bruno Latour's 2002 ethnography of La fabrique du droit: une ethnographie du Conseil d'État [The factory of law: an ethnography of the Conseil d'État] (2002b), which provides an analysis of the workings of the French Conseil d'État. The essay seeks to introduce non-French-reading sociolegal researchers to this work and draws out methodological and theoretical implications for research on legal institutions, legal knowledge, and bureaucracies.     

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.     

What Is Transnational Law?

Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels's The Concept of Law from a Transnational Perspective and Calliess and Zumbansen's Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law's extension beyond the boundaries of nation‐states.     

Legal Consciousness and Responses to Sexual Harassment

Studies of legal mobilization often focus on people who have perceived some wrong, but these studies rarely consider the process that selects them into the pool of potential "mobilizers." Similarly, studies of victimization or targeting rarely go on to consider what people do about the wrong, or why some targets come forward and others remain silent. We here integrate sociolegal, feminist, and criminological theories in a conceptual model that treats experiencing sexual harassment and mobilizing in response as interrelated processes. We then link these two processes by modeling them as jointly determined outcomes and examine their connections using interviews with a subset of our survey respondents. Our results suggest that targets of harassment are selected, in part, because they are least likely to tell others about the experience. We also discuss strategies that workers employ to cope with and confront harassment. We find that traditional formal/informal dichotomies of mobilization responses may not fully account for the range of ways that individuals respond to harassment, and we propose a preliminary typology of responses.     

Rule of Law against the Odds: Overcoming Poverty and the High Cost of Compliance in the Developing World

The sociolegal compliance literature, which suggests that compliance is motivated by fear, duty, or social license pressure, relies on assumptions that are often specific to the developed world. Are developing world conditions, including low state capacity, not conducive to regulatory compliance? Along the open India–Nepal border, I examine variation in compliance with wood‐taking regulations in contiguous conservation areas located in different countries. I find that widespread poverty, which makes the cost of compliance for large swaths of the population extraordinarily high, significantly reduces compliance rates. I go on to show that there are policies that even cash‐strapped, weakly‐institutionalized states can adopt that make compliance more affordable. These policies, and the resulting programs, are associated with much higher levels of compliance.