Under the Law: Legal Consciousness and Radical Environmental Activism

A growing body of sociolegal scholarship focuses the study of law away from formal texts and legal institutions and toward the experiences and perceptions of “everyday” citizens. This study introduces seventeen “radical” environmentalists who engage a repertoire of tactics that includes some actions that involve relatively severe forms of illegality. This research seeks to investigate the role of civil disobedience and lawbreaking within the radical environmental movement and the corresponding legal consciousness of movement actors. Utilizing ethnographic fieldwork and content analysis, this analysis suggests that Ewick and Silbey's (1998 ) three‐tiered model of legal consciousness is an operative starting point, but could be enhanced through theoretical expansion. This study proposes a new category of legal consciousness—Under the Law—that views the law as the protector and defender of a social order that is fundamentally illegitimate. Under the Law is qualitatively different from existing conceptualizations of legal consciousness and reaffirms the mutually constitutive nature of law and society.     

Law's Strange Allure: The Power of Legal Lore beyond the Law-Politics Divide

American political culture is both seduced and repulsed by legal power, and this essay reviews Gordon Silverstein's contribution to understanding the causes and consequences of “law's allure.” Using interbranch analysis, Silverstein argues that law is dangerously alluring as a political shortcut, but ultimately he concludes that law offers no exit from “normal politics” and the hard work of “changing minds.” This essay suggests that Silverstein's framework—his dyadic focus on courts and Congress, constructive and deconstructive patterns, legal formality and normal politics—strips law from its animating context of interests, inequality, and ideology. Without consideration of these larger forces of power, Silverstein's framework misplaces law's ability to “change minds” in perverse and unexpected ways.     

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.     

Jurisprudence and Communication: Secular and Religious

In considering Van Schooten’s study of the Eric O. case (s.1), I ask whether the different approaches taken by the two different “legal institutions”—the prosecuting authorities on the one hand, the courts on the other—are reflective of different images of warfare (a semantic difference) or of the different images each group holds of its own role (a pragmatic difference). If we consider these two “legal institutions” as distinct semiotic groups (s.2), is there an inevitable “communication deficit” (Van Schooten) between them (and the public) and how does this relate to the Hartian account of such a “crisis in communication” (s.3)? I agree with Van Schooten about the role of underlying images in the construction of legal sense, and relate this to the issue of intuitional judgment, both in and outside the law (s.4). I then turn to comparable issues which arise in my other research area, Jewish law, which reflects quite different ideological premises (s.5), reviewing the original (biblical) conception of the (intuitive) role and functions of judges (s.5A), decision-making, justification and consequentialist ethics in postbiblical Jewish law (s.5B), and the conclusions drawn, not least for the pragmatics of communication, in a recent research study on the wife’s rights in divorce. Paradoxically, I argue (s.5C), that the system rests at base on trust rather than objective truth. But trust, too, is a form of meaning, and susceptible to semiotic analysis. I suggest, in conclusion (s.6), that this is an issue which should be treated more seriously in the theory of secular law and legal communication.     

For Both Love and Money: Viviana Zelizer's The Purchase of Intimacy

Viviana Zelizer's recent book, The Purchase of Intimacy (2005), presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships—a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer's critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships and then explains her more three‐dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer's approach to transfers of genetic material and concluding that her approach could point toward a more equitable resolution of disputes in and about these markets.     

Positivism,Legal Validity,and the Separation of Law and Morals

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project.     

犯罪着手的教义学重述:学说对决、命题重证与具体解答

形式客观说并未丢弃实质,故其本为形式与实质相结合说。是否立足于构成要件行为是法益侵害紧迫危险性的刑法定型,决定了形式客观说和实质客观说各自是否为犯罪着手认定提供了明确标准,且是否导致犯罪着手认定的过于提前或推迟,进而决定了是否背离罪刑法定原则。犯罪着手的认定标准,应抛弃脱离形式限制的实质客观说而仍坚持形式客观说,但其“开始命题”应通过“基于大数法则的类型化危险形成说”而将犯罪着手的认定标准予以实质性落实。通过“基于大数法则的类型化危险形成说”,形式客观说对结合犯、隔离犯、徐行犯和原因自由行为型犯罪的着手能够做出妥当解答。     

Climate Change Litigation,Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA

Climate change litigation is an obsessive preoccupation for many legal scholars. Three different “narratives” can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co‐production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court “climate change” case—Massachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.     

Instituting Authority. Some Kelsenian Notes

A rule of recognition for a legal order L seems utterly circular if it refers to behaviour of “officials.” For it takes a rule of recognition to identify who, for L, counts as an official and who does not. I will argue that a Kelsenian account of legal authority can solve the aporia, provided that we accept a, perhaps unorthodox, re‐interpretation of Kelsen's norm theory and his idea of the Grundnorm. I submit that we should learn to see it as the vanishing point rather than the final basis of validity in a legal order. To prepare the ground for this proposal, I will briefly explore the claim to authority that is characteristic of politics. Then I sketch a multi‐layered canonical form of the legal norm, including their “empowering” character (Paulson) in terms of performative operators. I show how it leads to a “perspectival” account of the basic norm. In conclusion, I briefly point to the example of sovereignty and acquis communautair in international law to illustrate this view     

Turning the Other Cheek: Reassessing the Impact of Religion on Punitive Ideology

Religion has long been recognized as an underlying aspect of correctional policies. Researchers, however, have only recently begun to move beyond considerations of how fundamentalist Christian affiliations might shape preferences for punitive correctional policies. The present study broadens the extant research by examining multiple aspects of religious beliefs and how they affect support for capital punishment and harsher local courts. Analyses of General Social Survey data show that religion has divergent effects. Beyond a mere fundamentalist or conservative religious view, those who have a rigid and moralistic approach to religion and who imagine God as a dispassionate, powerful figure who dispenses justice are more likely to harbor punitive sentiments toward offenders. In contrast, those who have a gracious or loving image of God and who are compassionate toward others—that is, those who take seriously the admonition to “turn the other cheek”—are less supportive of “get tough” policies. In the end, not only is religion a multi‐dimensional phenomenon but also its features likely coalesce to divide believers into opposite camps—with one set of attributes fostering harsh sentiments toward offenders and another set of attributes tempering punitiveness and justifying interventions aimed at helping the criminally wayward.     

A Critique of Alexy’s Claim to Correctness

This article offers an overview of the difficulties in Robert Alexy’s idea of law’s “claim to correctness.” The inquiry takes us deep into the nature of simple communication, back out to what it means to have a theory about the nature of law, and also in the direction of wondering about the interaction of legal theory and practical reasoning—reasoning about how we should best act. The article offers reasons to question whether law in fact makes claims, at least in any straightforward sense. Even if one brackets that matter, there are reasons to raise doubts about what is in fact implicit in the act of lawmaking. At one level, an act of lawmaking does implicitly assert the authority to act in that way. Whether it also implies that the content of the action is morally good, or at least not clearly morally bad, is, at a minimum, a harder question.     

Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law

In Twilight of the Idols, Nietzsche presents a history of metaphysics that can also be read as a history of jurisprudence. Nietzsche shows how—via Platonism, Christendom, Kantianism, and utilitarianism—the “real” or “true” world of ideals gives way to an “apparent” phenomenal world that is itself ultimately brought into question. This article shows how 20th-century legal thought, broadly construed, also moves away from “ideals” of law toward an understanding of law as observable social phenomena. It suggests that the move to the “apparent” world in legal thought raises questions similar to those raised by Nietzsche's work: Does sociological law point to a nihilistic destruction of the legal tradition or to a joyous possibility of overcoming that tradition?     

Turning the Witness Stand into a Speaker's Platform: Victim Participation in the Norwegian Legal System as Exemplified by the Trial Against Anders Behring Breivik

In this article, we investigate how victims pursue legal participation when they are confronted by legal barriers and dilemmas that arise from tensions between legal formality and lay expectations and contributions of legal proceedings. We use the trial against Anders Behring Breivik as a case. Breivik placed a bomb in Norway's Government District before he shot and killed 69 people on a small island. We analyze interviews with 31 victims who testified against Breivik in court. We argue that the circumstances of the trial against Breivik can be characterized as “ideal” in terms of victims’ rights. The exceptionality of this case facilitates a focus on unquestioned obstacles to victim participation concerning the professionalization of the legal system. We question the presumption prevalent among some theorists that the professionalization of the legal system excludes lay participation, by arguing that legal formality both alienate and empower lay participation.     

Deduction and Justification in the Law. The Role of Legal Terms and Concepts

Abstract. Legal terms, such as “ownership,”“contract,”“validity,”“negligence,” are used as middle terms in legal deduction. The paper distinguishes two problems regarding this use. One is the logical function of terms for deduction within a normative system. Specific problems dealt with in this connection are meaning, definition, and economy of expression. The other problem connected with middle terms is the “moulding” and possible manipulation of the meaning of legal terms, for arriving at desired conclusions in a given scheme of inference. It is indicated how the moulding of contested legal concepts, if not restricted, will obscure the ratio of legal rules. This problem is relevant, inter alia, to arguments ex analogia in the law.     

The Scientific and the Social in Implementing Atkins v. Virginia

Atkins v. Virginia (2002) categorically exempts intellectually disabled defendants from execution, yet some constitutionally suspect punishments suggest a gap between law and practice. This article moves beyond critiquing Atkins’ formal implementation to provide a decentered analysis of the Atkins gap focused on the category of intellectual disability. It explores how drawing boundaries around intellectual disability in capital cases requires law to grapple with fluid scientific and social constructs through a study of how courts operationalize intellectual disability in capital cases. It draws from literatures considering the construction of intellectual disability and law's relationship to the scientific and the social and finds that this intersection first enables a conceptual disconnect between scientific and legal constructions of intellectual disability and, second, invites the use of stereotypes to inform the category. These processes undermine Atkins’—and other categorical exemptions’—ability to functionally limit extreme punishments and also reveal law as mutually constitutive.     

General Deterrence and Corporate Environmental Behavior*

This research addresses the assumption that “general deterrence” is an important key to enhanced compliance with regulatory laws. Through a survey of 233 firms in several industries in the United States, we sought to answer the following questions: (1) When severe legal penalties are imposed against a violator of environmental laws, do other companies in the same industry actually learn about such “signal cases”? (2) Does knowing about “signal cases” change firms’ compliance‐related behavior? It was found that only 42 percent of respondents could identify the “signal case,” but 89 percent could identify some enforcement actions against other firms, and 63 percent of firms reported having taken some compliance‐related actions in response to learning about such cases. Overall, it is concluded that because most firms are in compliance already (for a variety of other reasons), this form of “explicit general deterrence” knowledge usually serves not to enhance the perceived threat of legal punishment, but as reassurance that compliance is not foolish and as a reminder to check on the reliability of existing compliance routines.     

Carl Schmitt on the Secularisation of Religious Texts as a Resacralisation of Jurisprudence?

Carl Schmitt, an increasingly influential German law professor, developed a provocative and historically oriented model of “political theology” with specific relevance to legal scholarship and the authorship of constitutional texts. His “political theology” is best understood neither as an expressly theological discourse within constitutional law, nor as a uniquely legal discourse shaped by a hidden theological agenda. Instead, it addresses the possibility of the continual resurfacing of theological ideas and beliefs within legal discourses of, for instance, sovereignty, the force of law and states of emergency (or “exception”) that present themselves as relentlessly secular, even—in the case of Kelsenian jurisprudence—”scientific”. This article illustrates and then critically evaluates Schmitt’s theory in terms of the authorship of constitutional texts in particular. It includes two case studies—genocidal colonial land appropriation and Kelsenian positivism in order to illustrate aspects of his political theology. Whilst Schmitt is defended against reductionist interpretations, I show that there remains considerable unfinished business before a Schmittian approach to legal theory merits full acceptance.     

民事法律行为类型化的创新与完善

民事法律行为虽已成我国民商法领域重要成果,但也生发出诸多理论与实践上的问题和逻辑矛盾。我国学界有人认为民事法律行为的矛盾源于前苏联民法,一些权威性民法著作主张将"民事法律行为"恢复至德国"法律行为"。但是在构建具有中国特色的社会主义民商法理论体系中,似乎不应当非此即彼,而应当在剔除民事法律行为必须合法这一不合理因素的基础上,坚守民事法律行为在民商法领域的应有地位,且应进一步改变将其局限于民事法律关系原因层面的民事法律事实中的行为,借鉴和吸收我国法理学界的研究成果,将其界定为"由民法规范的、具有民事法律意义和效果的行为";其形式类型上应当从现在"民事法律事实"中的行为拓展至民事法律关系要素客体方面的行为和民事法律关系要素内容中的民事权利行为和民事义务行为,以致包括民事违法行为和民事责任行为。     

Lessons learned: A lawsuit's impact on journalistic behavior

Forty‐two journalists who had been sued for invasion of privacy were asked to describe the impact of the lawsuits on their professional lives. Findings indicate that most of the journalists felt changed by the experience—despite nearly all of them prevailing in formal legal proceedings. The changes they described were categorized as “defensive” (adjusting routines to minimize the likelihood of a similar suit) far more often than “instructive” (changing fundamental journalistic practice), and there was little evidence of a chilling effect from the suits, but the journalists clearly felt some degree of sting from the litigation. Just as the Iowa libel study discovered ten years earlier from the plaintiffs' perspective, this study has found from the defendants' perspective that litigation against the media—court outcomes notwithstanding—is by no means futile.     

支持理论下民事诉讼当事人法律意识的实证研究

传统研究重视“法的供给”视角,致力于创设“良法良制”。通过转向“对法的需求”视角,本研究基于支持理论和法律意识理论,访谈了142名四类常见民事诉讼案件的当事人。本研究发现,当事人对司法的信赖分为“特定支持”和“普遍支持”两个维度。负面的诉讼经历仅会降低当事人对主审法官(法院)的评价(特定支持),尚未削弱他们对法院系统及司法制度的评价(普遍支持)。此外,当事人可以被进一步分为“门外汉”和“入门者”。前者不信赖法院的根本原因在于其法律意识与司法制度间存在巨大的冲突和矛盾;“入门者”的意识则限定于法律体系内,只在意法官的审判质量。随着司法系统的日渐完善,“入门者”对司法的信赖有望逐步提升。但“门外汉”则需要通过“知情(法)受益”这一过程先转化为“入门者”。