Lawyers for God and Neighbor: The Emergence of “Law as a Calling” as a Mobilizing Frame for Christian Lawyers

Drawing on movement framing, collective identity, and mobilization scholarship, this article examines the emergence and potential effects of framing “law as a calling” for the Christian Lawyering community. The article finds that the term should have strong resonance and salience in the broader Christian community. It also finds that because of its interpretive malleability, “law as a calling” has been discussed and actualized in three related, but distinct, ways. That is, “law as a calling” has been conceptualized as requiring Christian Lawyers to turn inward, turn outward by pursuing social justice, and turn outward as a culture warrior. The article argues that while the different interpretations of “law as a calling” address a range of needs required to mobilize potential and existing Christian L/lawyers, the different ideological factions of self‐identifying Christian Lawyers emphasize different understandings of “law as a calling.”     

State‐Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights

State‐sponsored homophobia emerged in certain Central and Eastern European states in the past decade, with the denial of the right of assembly for gay pride marches. However, more recently there has been progress in the recognition of the fundamental democratic right of assembly. What accounts for this progress in fulfilling commitments enshrined in the European human rights treaties? This article proposes that the response of European organizations, in particular the Council of Europe and the European Union, as well as human rights nongovernmental organizations working in collaboration with local civil society organizations, have been critical to this progress. Previous literature has described a “boomerang” effect, in which aggrieved citizens use transnational activist networks to publicize human rights violations and put pressure on governments to fulfill their international legal commitments. To understand the functioning and effectiveness of the “boomerang” we introduce the concept of the “ricochet”—a process in which various institutions and civil society rapidly exchange information as well as political and legal argumentation. We posit that the ricochet is an integral process in the development of a European consensus on the human rights recognized by the European Court of Human Rights. Four cases have been selected for empirical analysis: Poland, Latvia, Serbia, and Russia. In analyzing the ricochet of information and argumentation between institutions and civil society, we find the consensus has been framed around the right of assembly, instead of the more contested area of human rights and sexual orientation.     

On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

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“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.     

Enacting the “Incomprehensible China”: Modern European Jurisprudence and the Japanese Reconstruction of Qing Political Law

The great ambition of Japanese colonialism, from the time of its debut at the end of the nineteenth century, was the reformulation of Chinese law and politics. One of the most extraordinary examples of this ambition is The Administrative Law of the Qing Empire [Shinkoku Gyōseihō], a monumental enterprise undertaken by the Japanese colonial government in Taiwan intended not only to facilitate Japanese colonial administration of Taiwan but also to reorder the entire politico‐juridical order of China along the lines of modern rational law. This article examines the legal analysis embraced in The Administrative Law of the Qing Empire and recounts its attempt to reconstruct the Qing's “political law” (seihō) by a strange, ambiguous, and hybrid resort to “authenticity.” The strangeness of this Japanese colonial production comes from Japan's dual position as both colonizer of Taiwan and simultaneously itself colonized by “modern European jurisprudence”(kinsei hōri). In uncovering the effects of modern European jurisprudence on the Japanese enterprise, we will discover Japan's pursuit of its own cultural subjectivity embedded in The Administrative Law of the Qing Empire, epitomizing the campaign of national identities observable in the process of East Asian legal modernization.     

“Legality with a Vengeance”: Reclaiming Distribution for Sociolegal Studies

The law and society community has argued for decades for an expansive understanding of what counts as “law.” But a content analysis of articles published in the Law & Society Review from its 1966 founding to the present finds that since the 1970s, the law and society community has focused its attention on laws in which the state regulates behavior, and largely ignored laws in which the state distributes resources, goods, and services. Why did socio‐legal scholars avoid studying how laws determine access to such things as health, wealth, housing, education, and food? We find that socio‐legal scholarship has always used “law on the books” as a starting point for analyses (often to identify departures in “law in action”) without ever offering a programmatic vision for how law might ameliorate economic inequality. As a result, when social welfare laws on the books began disappearing, socio‐legal scholarship drifted away from studying law's role in creating, sustaining, and reinforcing economic inequality. We argue that socio‐legal scholarship offers a wide range of analytical tools that could make important contributions to our understanding of social welfare provision.     

The rule of law as the lodestar of the European Convention on Human Rights: The Strasbourg Court and the independence of the judiciary

The rule of law is a constitutional principle under the European Convention on Human Rights. Throughout its history, the rule of law has been the lodestar guiding the development of the case-law of the European Court of Human Rights. In recent years, the normative impact of this principle has been increasing in the case-law of the Court, in particular in cases dealing with the independence of the judiciary. The article discusses the conceptual core of the rule of law under the Convention system as a fundamental component of “European public order”. Subsequently, the three-dimensional normative status of the rule of law is explored as well as the Court's statement that the principle is “inherent in all the Articles of the Convention”. On this basis, an in-depth analysis is undertaken of the application in recent Strasbourg case-law of the independence of the judiciary as a fundamental organic component of the rule of law. Finally, the author reflects on the “symbiotic” relationship in the field of judicial independence between the Strasbourg Court and the Court of Justice of the European Union.     

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.     

Politics,Prisons, and Law Enforcement: An Examination of the Emergence of “Law and Order” Politics in Texas

This article examines the rise of “law and order” politics in Texas, providing an in‐depth archival case study of changes in prison policy in a Southern state during the pivotal period when many U.S. states turned to mass incarceration. It brings attention to the important role an insurgent Republican governor and law enforcement officials played in shaping crime policy. Law enforcement's role is considered within a broader examination of political strategy during a period of intense socioeconomic volatility. The findings suggest that within particular political contexts, especially those with low levels of political participation, law enforcement agents might play a key role in shaping punishment.     

Primetime Dispute Resolution: Reality TV Mediation Shows in China's “Harmonious Society”

Through a case study of reality TV mediation shows, this article joins the debate about the recent promotion of formal and informal mediation by the Chinese government, what some scholars have called a “turn against law” (Minzner 2011). We identify three converging reasons for the sudden popularity of mediation shows on Chinese primetime television: (1) the desire of TV producers to commercially exploit interpersonal conflicts without fanning the flames of social instability; (2) the demands of official censors for TV programming promoting a “harmonious society”; and (3) the requirement for courts and other government institutions to publicly demonstrate their support for mediation as the most “appropriate” method for resolving interpersonal and neighborhood disputes. Cases drawn from two top‐rated mediation shows demonstrate how they privilege morality and “human feeling” (ganqing) over narrow application of the law. Such shows could be viewed merely as a form of propaganda, what Nader has called a “harmony ideology”—an attempt by the government to suppress the legitimate expression of social conflict. Yet while recognizing that further political, social, and legal reforms are necessary to address the root causes of social conflict in China, we conclude that TV mediation shows can help to educate viewers about the benefits and drawbacks of mediation for resolving certain narrow kinds of domestic and neighborhood disputes.     

The “Discourse” of International Law and Humanitarian Intervention

This essay analyzes the doctrine of “humanitarian intervention” in the frame of international law in the second half of nineteenth century and identifies the ground of legitimation of this intervention in the violation of presumed universal laws of humanity. The analysis emphasizes the transformation of the paradigm of “humanitarian intervention” into the current doctrine of the “responsibility to protect,” which under the rubric of “responsibility” legitimizes limitations on a state's sovereignty in cases where the state fails to guarantee the protection of its own population. This reconstruction of the genealogy of “humanitarian intervention” illustrates the continual exceptions to the principle of nonintervention, which means that the Westphalian principle of sovereignty has always been violated. Both doctrines—humanitarian intervention and the responsibility to protect—can be considered “hegemonic techniques” that use so‐called universal concepts in order to legitimize unilateral power interests.     

“The Tree Is the Enemy Soldier”: A Sociolegal Making of War Landscapes in the Occupied West Bank

War landscapes have a particular sociology; they are also formed through distinct legal technologies. By examining the genealogy of trees as totemic displacements in the occupied West Bank I demonstrate how the Israeli/Palestinian war is deflected onto the landscape and how this deflection erodes the boundary between law and war. Dealing with issues of colonization, nationalization, and the way that these implicate landscape as a “natural alibi,” the article examines the intricate making of politics into nature. Further, it explores the ironic nesting of colonial processes from Ottoman, to British, to Zionist, and finally to the new Jewish settler society that seeks to unsettle the old colonial landscapes of this place. Utilizing a detailed interpretation of a range of interviews and participatory observations, the article unpacks the mutually constitutive relationship between law, technologies of seeing, and landscape, illustrating how this relationship is played out by various actors in the occupied West Bank.     

War and International Order in Kant's Legal Thought“*

Abstract. Kant's writings on international law and especially his Toward Perpetual Peace have been interpreted both in a “statist” and a “cosmopolitan” manner. In this article it is argued that these interpretations stem from an ambiguity in those writings. In the course of proposing a resolution of this ambiguity, the first question to be examined is the extent to which war forms a part of human history and of human nature. Secondly, Kant's arguments against the realistic position and the conditions for a lasting peace are presented. An interpretation is then offered both of the proposed league of nations and of the situation that exists when such a league is still absent. According to the interpretation offered here, Kant's writings fit partly within the tradition of the “just war.”¹     

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.     

网络化社会的戏仿与公平竞争——关于著作权制度设计的比较分析

本文关于戏仿与著作权的讨论,侧重于数码网络化对法律秩序的深刻影响以及各种创新型制度设计。作者认为,对所谓公平使用原则的考量,必须以严格区分美国模式和欧洲模式为前提;中国现行著作权法极其强调对作者人格的保护,固然有其必然性和合理性,但也很可能在不同程度上阻碍信息流通以及文化产业的发展。因此也可以说,“馒头血案”与《无极》的碰撞,其实提出了一些涉及法与社会转型的根本问题:怎样才能避免通讯技术引起著作权的解体或贬值?人际互动与大批量的契约群以及民主决定的法律程序要件之间的关系究竟应该如何重构?解答这些问题的关键是对权利处理的不同方式进行比较。     

Can There Be an Artifact Theory of Law?

The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that “law” by its nature or character is an artifact entails, and what an artifact theory of law might look like.     

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.     

Telecommunications terminal equipment: EEC commission opens the market

The 12 Member States of the European Economic Community (EEC) are legally obliged by the Treaty of Rome, as amended by the Single European Act, to abolish all of the remaining physical, technical and fiscal barriers between them by 31 December 1992. The Single European Act, which sets the 1992 deadline, defines the envisaged internal market as “an area without internal frontiers”.The creation of a common European market for telecommunications services and equipment is both an essential prerequisite and an important part of the “internal market”.In its Green Paper on the Development of the Common Market for Telecommunications Services and Equipment — “the Green Paper”¹⁾) — and a follow-up Communication²⁾, the Commission of the European Communities (“the Commission”) has set forth its main policy proposals in the telecommunications field. Implementation of these policy proposals by means of Community law directives is progressing rapidly, in particular with respect to terminal equipment. On 16 May 1988, the Commission issued a“Commission Directive on Competition in the Markets in Telecommunications Terminal Equipment” — “Terminal Equipment Directive” —³⁾ based on its regulatory powers under Art. 90(3) of the Treaty of Rome (“EEC Treaty”).This article explores the regulatory scope of the Terminal Equipment Directive which has recently been challenged by the French government before the European Court of Justice.     

The Biggest “Have” of Them All: Wal‐Mart and Its Litigation Outcomes in Slip‐and‐Fall Cases

Scholars have theorized that resource‐rich litigants known as the “haves” tend to succeed disproportionately in litigation when the adverse party is a “have‐not.” The traditional theory suggests that haves are able to use their wealth to secure better attorney representation and can use their frequent experience in litigation to tip the scales of justice in their favor, particularly when faced with “one‐shotters” whose involvement in litigation is infrequent. A remaining question, however, is whether some haves fare better than other similarly situated haves. Specifically, this article posits that the litigation strategy used by the defendant may also play a role in litigation outcomes. Companies that tenaciously fight claims that, in the short term, would be cheaper to settle might discourage otherwise valid claims in the future from being filed out of fear that the litigation will be a protracted battle. This article examines Wal‐Mart Stores, Inc. (Wal‐Mart)—the largest revenue‐generating company in the United States—to explore whether it fares better than other resource‐rich defendants. Wal‐Mart in particular has a reputation against settling cases and thus is an excellent vehicle to investigate this hypothesis. Appellate cases in an eleven‐year period involving slip‐and‐fall litigation were compiled, and the results show that Wal‐Mart did win at a higher rate than other defendants. Although more research is needed to explore fully the effect of litigation strategy on win–loss rates, this sample of cases demonstrates that Wal‐Mart is a more effective and victorious litigant.