Falling Short of Constitutional Norms: Does “Normative (In)Congruence” Explain the Courts' Inability to Promote the Right to Water in South Africa?

In South Africa, municipal noncompliance with legislation promoting the constitutional right to sufficient water is both a failure of the rule of law and a betrayal of that right. Judicial intervention has prompted formalistic compliance with water law, but the underlying commitment to sufficient water remains unfulfilled. Does the inability of courts to achieve social justice despite enforcing social legislation confirm the thesis that commitments to the rule of law and to social justice are inconsistent, that upholding the rule of law may not advance social justice? This article offers an alternative to this “inconsistency thesis,” arguing that the rule of law can accommodate social justice if it demands normative congruence alongside congruence with formal rules. Empirical investigation reveals that structural challenges and the multifarious normative demands on officials create a condition of normative incongruence that impedes the pursuit of social justice, even as courts compel congruence with formal rules.     

Antinomies and the Automobile: A New Approach to Criminal Justice Histories

In the twentieth century, the antinomy of freedom and coercion served as the dominant paradigm for understanding issues of crime and punishment. Roscoe Pound in Criminal Justice in America (1930) and Herbert Packer in The Limits of the Criminal Sanction (1968) described a tension between the values of individual liberty and general security to explain the problems with the justice system and the public's disagreements over their solution. Historians of twentieth‐century criminal law have also adopted this framework to explain causation and change. This essay argues that an antinomic perspective of criminal justice history, while useful, has obscured important historical questions. A focus on social changes, such as the transformations that the automobile brought about in the commission of crimes and police practices, instead of on contrasting values, offers a different account of how proceduralism became inextricably tied to notions of American freedom in the twentieth century. This approach also historicizes the “paradigm of antinomies” and shows how people in the past, like Pound and Packer, mobilized dualistic thinking, which shaped a criminal legal culture based on an antagonism—both real and perceived—between citizens and law enforcement.     

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.     

Living on the Boundaries in America

Abstract

In this article I examine marginalized youths' ideas about the United States, the law, and police. My interpretive analysis is based upon in-depth, unstructured interviews with juvenile parolees living in poverty in a large southwestern city. In general, these parolees could be described as uneducated, unemployed, non-white, youth gang members. Through an examination of the youths' narratives and stories about America and its legal authorities, I attempt to illustrate how their ideas can be understood as evolving from their structurally based interactions. I present the general themes of the marginalized youths' legal and political consciousness and attempt to show how this consciousness flows from their hostile interactions with legal and conventional authorities. Ultimately, I suggest that the contrast between the youths' social justice ideals and the reality of their lives on the margins influences how they think about America, law, and the police.     

Thirty Years of Social Science in Supreme Court Criminal Cases*

The Supreme Court early took note of extralegal, “social science” materials in Muller v. Oregon (1908), and a half-century later made specific reference to social science authorities in the famous footnote 11 of Brown v. Board of Education (1954). Since Brown, much has been written about the Supreme Court's use of social science research evidence, but there has been little systematic study of that use. Those writing on the subject commonly focus on areas of law such as jury size, where social science has been used, and have generally assumed that social science information has been utilized in Supreme Court decisions with increasing regularity. Surprisingly little is known, however, about either the justices' baseline use of social science authorities, or many other aspects of their uses of social science information. The focus here is on the citation of social science research evidence in a sample of 240 criminal cases decided during the 30 years between the Supreme Court's 1958 and 1987 Terms. The resulting portrait contributes to a fuller understanding of the justices' use of social science materials, and may ultimately help promote more effective utilization of social science research evidence in Supreme Court decisions.     

Social justice jurisprudence of clinical education programme: A paradigm shift from legal education to justice education

The legal profession has remained relevant in bringing about positive transformation in society — with leaders, policymakers, and change makers around the world mostly possessing a background in the law. That said, the trust, and positive image, enjoyed by legal professionals continues on a declining path. Considered more glamorous, the legal profession has gone astray from the path of social justice. In this article, I argue that the negative perception of legal professionals is, in large part, because of the way legal professionals are taught and trained in law schools. I argue that legal teaching pedagogy in South Asia, and generally in developing countries, is a product of colonial structure. Even after the so-called decolonisation movement, law schools and universities, for example in South Asia, institutionalised a legal pedagogy unsuited to the epistemic actualities of their societies. A law student in South Asia was and continues to be taught the Western conception of what the law is and its relationship to justice. In a legal culture carrying the transplanted laws of the colonisers, the students of developing countries are meticulously trained in the technical skills of reasoning and interpretation by applying Eurocentric guidelines of positivist construction. In light of this, I propose a shift in legal education: to transform the existing legal education and pedagogy into ‘justice education’. I focus on the ancient principles — located in the Eastern legal philosophy — of empirical reasoning and the importance of the human nature of sociability in arriving at social justice. To combat the tendency of insulating law students from societal problems, I propose a social justice-driven legal pedagogy. I have also reflected on some practices that ‘are’ and highlighted other practices that ‘ought to be’. My thesis connotes that the legal profession has an innate role in building the capability of individuals who are deprived and excluded. In line with it, I present examples of scalable clinical legal education being practised specially by the Kathmandu School of Law that can create multidimensional legal professionalism.

     

Social justice and women leaving prison: beyond punishment and exclusion

Questions related to social justice are often considered frivolous or irrelevant in the context of people who come into conflict with the law. Young (1990, Justice and the politics of difference, Princeton University Press) has pointed to the importance of social justice, especially in societies where the dominant perspective of the privileged is regarded as neutral (and presumably fair), while others remain oppressed and excluded. We investigate the relevance of social justice in the treatment of women who are in prison. Based on more than a decade of practice and four years of research with women in one of Canada's federal prisons for women, we explore the question of social justice in the context of a recreation and leisure initiative whose aim is to assist women not only while they are incarcerated but most especially on release. The social recreation program is brought into the prison by a restorative justice community‐based organization. Men and women from the community come into the prison to recreate together and, in that context of natural conversation, relaxation and dialogue, Circles of support may develop. If a Circle is formed, volunteer members then follow the woman into the community and support her efforts to live as a participating citizen on release. The relevance of the work of Circles in furthering social justice within a system that, despite recent potentially innovative approaches to incarcerating women, has struggled to move beyond traditional practices of punishment and exclusion, which tend not to encourage strong and healthy community life, will be explored.     

Procedural justice in policing: the first phase of an Australian longitudinal study of officer attitudes and intentions

Despite the prominent role that procedural justice has taken in policing research, we know surprisingly little about police perceptions of procedural justice as an effective tool in their encounters with members of the public. In this study, we start with a focus on the perceptions of police recruits in a major police service, exploring their perceptions of procedural justice and its role in policing. Using data from a questionnaire of 450 police recruits in the early stages of their initial training, we find that orientations supportive of procedural justice significantly predict reported intentions to use procedural justice approaches in interacting with others, as well as the prioritization of procedural justice responses to a typical policing encounter (traffic violation). We also find that belief in an obligation to obey the law is significantly associated with perceived procedural justice outcomes. We argue that early supportive orientations towards procedural justice may be important in understanding police officers’ future interactions with members of the public, promoting positive evaluations of justice among citizens, and minimizing the risk of coercive encounters involving officer use of force.     

Correlates of formal and informal social/crime control in China: An exploratory study

There are two major ways for a society to control its members, formal and informal. A major goal of both forms of control is to curb criminal behavior. Formal criminal justice control uses the law and official government agencies (e.g., police, courts, and corrections) to ensure compliance. Informal criminal justice control uses morals and social institutions (e.g., family, peers, and neighbors). China has a long history of using informal criminal justice controls. Nevertheless, there has been a movement during the past several decades towards use of formal criminal justice controls. This study examined the level of agreement with both forms of control and the correlates of each form using a survey of Chinese college students. Findings from multivariate analysis indicated that those who held a Confucian belief in law and punishment, those who had a higher distrust of strangers, and those who grew up in rural areas were more supportive of informal control, while those who were majoring in the area of law and male respondents were more supportive of formal control.     

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 .     

Animal rights is a social justice issue

The literature on social justice, and social justice movements themselves, routinely ignore nonhuman animals as legitimate subjects of social justice. Yet, as with other social justice movements, the contemporary animal liberation movement has as its focus the elimination of institutional and systemic domination and oppression. In this paper, I explicate the philosophical and theoretical foundations of the contemporary animal rights movement, and situate it within the framework of social justice. I argue that those committed to social justice – to minimizing violence, exploitation, domination, objectification, and oppression – are equally obligated to consider the interests of all sentient beings, not only those of human beings.     

Social Justice Beliefs Regarding Old-Age Provisions in Germany: A Latent Profile Analysis

Examining personal beliefs about social justice in the way a society provides financial security in old age may reveal potential conflicts about the distribution of wealth. Individuals differ with regard to how they believe old-age provisions should be distributed (e.g., based on principles of merit or self-reliance), and individuals often endorse more than one belief at the same time. Using latent profile analysis and data from the 2014 German Ageing Survey we identify five separate profiles of social justice beliefs among older adults (40–85 years) in Germany. Belief profiles were based on the extent to which people simultaneously endorse and/or reject meritocratic, redistributive, self-reliant, and fatalistic ideas regarding old-age provisions. Almost 20% of the sample demonstrated a belief system in line with the German meritocratic system. Roughly three-fifth did not show strong preferences for a specific social justice principle. However, we identified two belief profiles representing 22.4% of the sample which may reflect dissent from the current system. Sociodemographic characteristics, political identification, and indicators of social disadvantage (e.g., lower income, fears of decline in social status, and feelings of social exclusion) were differentially associated with the five belief profiles. Overall, the results showed that in particular people of lower socioeconomic status were critical with respect to the principles of the German pension system raising questions regarding the demand of political interventions.     

Connecting Critical Race Theory with Second Generation Legal Consciousness Work in Obasogie's Blinded by Sight

Sociologist and legal scholar Osagie Obasogie's study of how blind people “see” race reveals the usually invisible, taken‐for‐granted mechanisms that reproduce racism. In Blinded by Sight, he distinguishes racial consciousness from legal consciousness, though he notes their common emphases on studying how cumulative social practices and interactions produce commonsense understandings. I argue that there is much to be gained from connecting these two fields, one emanating primarily out of critical race theory and the other out of law and society scholarship. Legal consciousness offers an important avenue for bridging macro studies of race making with micro studies such as Obasogie's, which focus on individuals’ experiences and practices of constructing race and learning racism.     

现代法的本体价值及其对我国民事立法的启示

在法的价值体系中,至为根本并决定其他价值者为法的本体价值.受现代社会整体文化结构、经济结构之决定,现代法的本体价值为个人自由与社会正义的统一,并与传统和后现代法的价值相区别.对我国民事立法而言,现代法的本体价值有助于我们克服价值迷失和主体误置之弊,坚持个人自由这一核心价值,切实贯彻私法自治原则,并注重社会正义价值,实现个人自由和社会正义的统一与和谐.     

Three Faces of Justice and the Management of Change

The apparatus of legal principles we use has, far more than we realise, transformed the way we think about the control of private power in the name of social justice. The actual sort of equity that the legal and political system is searching for is not reflected in our major political theories, nor indeed in the official rhetoric of many such systems themselves. The reason for this mismatch has to do with the need to accomodate change – a space opened by the law and unacknowledged by theory.
This article sets out the current theoretical frameworks within which the regulation of private power is analysed, and it contrasts these with a different approach to the problem of justice at work in employment and corporate law that does not find its way into theory. Once that approach is given a formulation, its place within a larger theory of justice is proposed, and its wider implications for the relationship between state and civil society are investigated.     

Role-taking and restorative justice: Social practices of solidarity and community in Shakespeare's measure for measure

This article examines to what extent role-taking inspired characters in Shakespeare's play Measure for Measure to new modes of consciousness and concomitant social practices of restorative justice. The play's main character, Duke Vincentio, engages in a series of role-taking episodes through which he undergoes a self-transformation. He subsequently enacts the social practice of restorative justice. However, the play is neither a paragon case of self-transformation nor of restorative justice, especially since (1) manipulation and power are employed in the reintegrative shaming ceremony; (2) some characters are stigmatized and humiliated; and (3) the Duke still practices duplicitous, power-based, and punitive measures. Nevertheless, through the process of self-discovery and the recognition of others as like himself, the Duke reconceives his kingly role from that of an executor of law violators to that of a mediator of troubled relationships. The Duke's character reflects in part the cultural contradictions and social transformations ongoing in Shakespeare's Renaissance England.     

The processing of drug arrestees: Questioning the assumption of an ambivalent reaction

In mirroring society's uneasiness about punishing certain types of drug use, both the academic and popular literature presuppose that the United States criminal justice system processes drug law violators with more ambivalence than it processes other types of offenders. This assumption has provided and still provides support for a more intolerant handling of drug offenders. Through the use of Offender- Based Transaction Statistics, this study examined the validity of this belief in ambivalence by comparing event-history processing data on felony-level drug, property, and violent arrestees. The findings raise questions about the assumption of ambivalence, and they point to the necessity of maintaining in thought and action the distinction between “noncomplaint” and “complaint-generating” offenses.     

Relational legal consciousness in the punitive welfare state: How Dutch welfare officials shape clients' perceptions of law

With a growing number of strict obligations and harsh sanctions for welfare recipients, the Netherlands has increasingly become a punitive welfare state. This article looks at what this means for welfare clients and their commonsense understandings of the law. To analyze how welfare officials shape clients' legal consciousness, I draw on an online survey among Dutch welfare clients (N = 1305) and a correlation analysis. The findings show that there is a clear relationship between welfare clients' own legal consciousness and their assessment of welfare officials' beliefs about the law. However, not all elements of their legal consciousness are relationally influenced by the same factors. Also, clients' self-reported compliance behavior is less relationally influenced than other elements of their legal consciousness. This study adds to our understanding of the mechanisms that constitute the production of relational and second-order legal consciousness and it contributes to the development of new research methods to study people's perceptions of law.     

当代正义要求的法则化——兼论社会保障法的正义基础

19世纪以来,西方的正义观发生了重大变化,即从功利主义的正义观向社会正义理论转变,从谋求最大多数人的最大利益向关爱社会境况最差者转变。本文考察了罗尔斯的社会正义理论,并从法律视角分析了以罗尔斯为代表的社会正义理论所导致的法律变革,揭示了社会保障法的正义基础。