Jurisdiction in Trans Health

This article utilizes a novel framework to analyse the contested boundaries between law and medicine. Bringing theoretical and empirical insights together, it expands recent socio-legal scholarship on jurisdiction. Jurisdictional analysis is conducted in an under-researched area of health law – namely, the accessibility of trans-related health care. The article draws upon the first qualitative research project to assess the impact of self-declaration of legal gender status in Denmark. This was adopted in 2014, at the same time as access to hormones and surgeries was centralized and restricted. The combined impact of these reforms disappointed the trans people interviewed, which demonstrates the importance of identifying how legal and medical norms interrelate. Jurisdictional analysis helps to illuminate how law was used to develop and protect professional competencies. Such insights will be valuable for researchers interested in the potential of self-declaration, and for scholars of health law and socio-legal studies more generally.     

Complexity Theory &; Socio-Legal Studies

The complexity theory paradigm is in the process of being taken up from the natural sciences into the social sciences and humanities. This article introduces complexity theory as a theoretical framework for socio-legal study. Complexity theory is analysed as being developed in non-organic, organic and social registers, and as exhibiting a specific image of thought. The complexity theory of the non-organic register is introduced in terms of Prigogine’s work on order out of chaos and dissipative structures. The complexity theory of the organic register is introduced in terms of Kauffman’s work on edge of chaos self-organisation in morphogenesis and co-evolution. Finally, the complexity theory of the social register is addressed in terms of assemblage theory. Specifically addressing the level of social organisation and the role of law, the work of J.B. Ruhl is considered as the first working through of the implications of complexity theory for socio-legal scholarship. The article goes on to argue that the key starting points of a complexity paradigm for socio-legal study are: an ontogenetic image of thought; complex dynamic dissipative structures and assemblages in phase space; the socio-legal as complex adaptive assemblages in co-evolution with their broader environment; and commitment to emergence and self-organisation at the edge of chaos. In particular, it proposes that the complexity theory of law allows for the search for lost, hidden, local, bottom-up, emergent modes of legality, and for a new conceptual creativity in socio-legal work. The complexity theory theoretical framework is of particular interest and challenge to scholars working in the social sciences with Maturana & Varela based autopoetic systems theory.     

A Non-Essentialist Version of Legal Pluralism

The concept of legal pluralism has been touted by many socio-legal scholars as a key concept in the analysis of law. Yet, after almost twenty years of such claims, there has been little progress in the development of the concept. This article will argue that the underlying cause of this lack progress lies in the fact that promoters of the concept have relied upon function-based, essentialist concepts of law. It will describe the problems generated by such concepts and, following this general analysis, will review the versions of legal pluralism articulated by Boaventura de Sousa Santos and Gunther Teubner. The critique of their versions of legal pluralism will lead into the posing of a non-essentialist alternative which avoids the conceptual problems of prevailing versions of legal pluralism, and provides a better tool for purposes of research and analysis of the relationship between law and society.     

A socio-legal quest: from jurisprudence to sociology of law and back again

How should socio-legal studies view jurisprudence, the legal theory of jurists? Jurisprudence's task is to promote law as a socially valuable idea taking various forms in different times and places. As a value-oriented and context-focused enterprise, it should draw on the social sciences to make its inquiries relevant in a changing socio-legal world. Correspondingly, socio-legal research needs theory to link its empirical inquiries to an overall sense of what can be hoped for from law as a social phenomenon. In different ways, jurisprudence and socio-legal inquiry should help to theorize the nature of legal practice and legal experience. They are necessarily distinct enterprises with contrasting orientations, but they can aid each other in important ways.     

萨维尼对19世纪英美法学的影响

萨维尼作为19世纪德国最伟大的法学家,他的学说理论通过其著作在英美的翻译和传播,不仅在大陆法系国家,而且对英美法系国家也产生了很大的影响。特别是在19世纪英国历史法学派的产生,美国南北战争后关于法典编纂的讨论,19世纪英国和美国大学法律教育的改革,以及美国司法实践等方面,萨维尼所产生的影响都为其他大陆法系国家的法学家所不及。个中原因是多方面的,既有萨维尼个人声望的原因,法律历史观在19世纪的兴起,但更重要的还是两大法系之间逐渐产生的互相交流的趋势。考察萨维尼对当时英美法学的影响,就是对两大法系之间长期存在的学术交流的一个有力例证。     

Gazing into the Future through a VDU: Communications, Information Technology, and Law Teaching

The article deals with the interaction of computers, informationtechnology, and legal education. It considers the technical achievementsof communications and information technology (C&IT) in the practiceand teaching of law, then the jurisprudential paradigms which underliethese issues. To the extent to which law is conceived as a form ofinformation, existing assumptions about the theory, practice, andteaching of law are challenged. Where, on the other hand, law is regardedas a collection of rules, reversal to formalism, driven by C&IT, isidentified as a concern for socio-legal scholars. Other concerns addressedby this article include the exclusive economics of the C&IT revolution,the power dynamics of technophobia, and the interaction of computersand gender. The article concludes with suggestions for alternative visonsof the future of C&IT and legal education.     

Socio-Legal Studies in 2020

This article looks back to a paper written by the author and Phil Thomas in 2000 on socio-legal studies and reflects on what has changed in the world of socio-legal studies since then. It then turns to the continued modesty of the claims that socio-legal studies researchers make for their work. The suggestion made is that socio-legal studies forms a social ecology in what is termed the ‘hyphen-space’ and that through this space social ecology theory allows much larger claims to be made about how actors and issues at different levels and scales relate to each other. To this end, the article takes an issue, an artefact, and a broad classification of ‘people’ within the sphere of international commercial law to illustrate how social ecology can be used to broaden the claims that research makes.     

The Legal Education and Training Review: regulating socio-legal and liberal legal education?

The Legal Education and Training Review (LETR) which reported in June 2013 conceded that undergraduate law degrees are generally outside the remit of the review other than when there is a direct impact on the provision of legal services. On first glance therefore the review has few implications for those of us interested in delivering a liberal legal education and developing socio-legal approaches to law and legal study. However, on closer reading, the report contains a number of suggestions which, if taken up by the regulators, have significant potential to change law degrees, even if regulation remains “light touch”. This article explores those issues with a particular focus on the implications for liberal law degrees and socio-legal approaches to law teaching. In particular the article will explore issues around possible changes to foundation subjects; the creation of a framework of learning outcomes; the possible strengthening of legal writing and research in the curriculum and the opportunities offered for the introduction of more socio-legal material; and the trickle-down effect likely to be felt by providers of undergraduate law degrees of changes in regulation of legal services and as a result of student, employer and other stakeholder expectations.     

国际环境争端解决机制研究

解决和避免国际环境争端已成为近年来备受关注的论题。无论是在1992年联合国环境与发展大会期间还是新近多边环境协定的谈判和实施过程中,国际环境法的遵守问题都引起了各国政府和国际法学者的关注。多边环境条约、联合国海洋法公约以及WTO规则,是国际环境争端解决机制的主要法律渊源。在一定范围内,这些多边条约和条约体系相互影响、相互推动,又相互矛盾和冲突,呈现出国际环境争端解决机制的独特发展形态。     

Of Mines,Mining, and Imagining: Rights without Society?

As a polyvocal discipline that integrates studies of law in society, socio-legal studies should have no problem accommodating civil liberties and human rights. Numerous methodologies and frameworks present themselves as illuminating, troubling, and critiquing conceptions and experiences of rights. Legal analysis of human rights is nevertheless often abstract and highly technical. But what if socio-legal analyses of rights were not available? What would be lacking? Using a personal situated methodological approach, I explore the Journal of Law and Society's back catalogue to reflect on what civil liberties and human rights might be without socio-legal studies.     

Where the wild things are: animal victimization in federal environmental crime cases

Although there has been a marked increase in studies of animal abuse from a variety of socio-legal and green criminological perspectives in the past two decades, we have a limited empirical understanding of the extent of animal victimization in environmental crime prosecutions in the United States. In order to better understand the nature and distribution of animal victimization in environmental crime prosecutions, we employ a content analysis of federal environmental crime cases, 2001–2011. Out of 972 cases, results show identifiable animal victimization plays a role in six percent of cases. Although animal victimization in environmental crime may be extensive, its role in environmental prosecutions appears secondary. We conclude with possibilities of expanding animal protection via wildlife and environmental law connections.     

Policy, Research, and Funding: Socio Legal Studies in a changed Political Climate

In the current conservative political climate in Britain, the USA and elsewhere, spcio-legal scholars are under increasing pressure to display explicitly the practical relevance and usefulness of their research. 'Relevance' is usually taken to be indicated by the capacity of research findings to change social policy or to foreclose certain courses of action. But it is also important to turn the question around and as well as asking about the extent to which socio-legal research has changed governmental policies, we should always bear in mind that governmental policies, particularly about modes of funding, may change the character and fundamental utility of socio-legal research. The discussion is illustrated by reference to recent experience at the Centre for Socio-Legal Studies at Oxford University.     

英美证据评价制度的定位

近年来,汤维建教授及其同事何家弘教授分别撰文指出,英美法系的证据制度既不属于自由心证制度,也不属于法定证据制度,而是介于两者之间的一种制度。这样的观点不仅为许多学者接受,也对我国的证据制度建构产生了影响。对其观点之依据进行分析发现证据的关联性不同于关联程度,证据关联性的法定性不等于证明力评价的法定性;陪审员的非自由意志也不能成为证据证明力评价法定性的依据。要之,英美证据评价制度是与大陆法系证据制度不同的另一种自由心证制度,受诉讼价值目标以及审判组织结构的影响,我国统一证据法不能采用英美法系的立法模式。     

A Selection of Empirical Socio-Economic Research with Respect to the Functioning of Legal Rules and Institutions in Belgium and the Netherlands

In this paper some studies with respect to empirical socio-economic research which has been undertaken in Belgium and the Netherlands concerning the functioning of legal rules and institutions are discussed. The paper focuses on the domains of criminal law, civil procedure, liability and insurance. The paper argues that contrary to the overwhelming economic literature on liability and insurance, the empirical results in that domain are poor. More research is undertaken in the area of criminal law and apparently it is overwhelming in the area of civil procedure. The latter studies are, however, mainly undertaken by socio-legal scholars and less by economists. The general conclusion of the empirical studies discussed seems to be that while the empirical literature on the effect of changes in the decision making environment on rational actions in the legal system is rich and provocative, there is much less empirical testing of the effects of legal rules as such on allocational outcomes. The paper argues that much more effort should be devoted to the latter issue.     

Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York State

Pierson v. Post (1805) has long puzzled legal teachers and scholars. This article argues that the appellate report was the product of the intellectual interests (and schooling) of the lawyers and judges involved in the case. They converted a minor dispute about a fox into a major argument in order to argue from Roman and other civil law sources on how to establish possession in wild animals, effectively crafting an opportunity to create new law for New York State. This article explores the possibility that the mastermind behind this case was the chief justice of the court at the time, James Kent. The question of Kent's involvement in 1805 remains elusive. However, the article uses annotations he made on his copy of the case and discussion of Pierson v. Post in his famous Commentaries to demonstrate the nature of his later interest and to explore the project of building a learned law for New York State.     

Images of welfare in law and society: the British welfare state in comparative perspective

Designed by Beveridge and built by Attlee's post-war Labour government, the welfare state was created during the 1940s. Britain has been seen – in domestic debates and internationally – as a world first: the place where both the idea and the practice of the welfare state were invented. I draw together comparative welfare state analysis with law and society scholarship (previously largely developed in isolation from one another) – as well as using British political cartoons as a source – to develop a revisionist historical critique of this conventional wisdom. First, the British welfare state has always been comparatively parsimonious. Second, the idea of the welfare state seems to have its origins outside the United Kingdom and this terminology was adopted relatively late and with some ambivalence in public debate and scholarly analysis. Third, a large body of socio-legal scholarship shows that robust ‘welfare rights’ were never embedded in the British ‘welfare state’.     

Reconciliation between Korea and Japan

Although Japan and Korea formally normalized their relationsin 1965, these neighbours remain wary of each other becauseof their awkward history during the first half of the twentiethcentury, when Japan annexed Korea and oppressed the Koreansin many ways. Korean scholars believe strongly that this annexationwas "illegal" and that it constituted a violation of internationallaw when it occurred. Japanese scholars tend to admit that theJapanese occupation of Korea was brutal and caused enormoussuffering, but they are reluctant to acknowledge that the annexationwas "illegal", because other great powers were annexing smallcountries during that period. The US action supporting the overthrowof the Kingdom of Hawaii in 1893 and annexing Hawaii in 1898may be helpful in finding an appropriate resolution to the Japan–Koreastandoff. In 1993, the US Congress enacted a joint resolutionformally apologizing to the Native Hawaiian people and callingfor a "reconciliation" between the United States and the NativeHawaiians. This resolution acknowledged that the US diplomaticand military support for the 1893 overthrow was "illegal" andwas in violation of "international law". This strong statementseems to be an application of "intertemporal law", whereby presentviews of international law are applied to the events of the1890s, but, in any event, it is a powerful acknowledgment thata wrong occurred, causing injuries that can still be felt today.The reconciliation process between the United States and NativeHawaiians is now under way and, to be complete, it will requirethe restoration of the sovereignty of the Native Hawaiians anda return of land and resources to them. Japanese officials haveoffered apologies to the Koreans, but the reconciliation betweenthe two countries can become complete only if these apologiesare accompanied by a transfer of items of real value. This paperproposes that proper payments to the Korean comfort women anda renunciation by Japan of its claim to Dokdo/Takeshima (thetiny islands claimed by both countries) could serve to formalizethe reconciliation between these two neighbours.     

Why Must Legal Ideas Be Interpreted Sociologically?

Sociology of law and socio-legal studies are sometimes declared unable to give insight into the nature of legal ideas or to clarify questions about legal doctrine. The idea that law has its own 'truth'– its own way of seeing the world – has been used to deny that sociological perspectives have any special claim to provide understanding of law as doctrine. This paper tries to specify what sociological understanding of legal ideas entails. It argues that such an understanding is not merely useful but necessary for legal studies. Legal scholarship entails sociological understanding of law. The two are inseparable.