The Sociology of Law in France: Trends and Paradigms

To suggest that French legal sociology is a field in which a dominant theoretical tendency is identifiable is misleading; equally, attempts to provide insight into the work achieved in French socio-legal studies which presuppose that a complete inventory of the field must be undertaken are misguided. In this article, an exposition of French legal sociology is attempted using different means: following a brief history of the evolution of socio-legal studies in France, the authors suggest different paradigms around which French researchers appear to converge. Eight paradigms are identified, covering the majority of French sociologists and jurists. The article concludes with an analysis of some characteristics of socio-legal studies in general, within the framework of French intellectual and academic life.     

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.     

A Modest Notion of Coherence in Legal Reasoning. A Model for the European Court of Justice

Abstract. The aim of this article is to propose a theoretical theme to explain coherence in legal reasoning. The main argument that this paper wants to put forward is that theories of coherence in the legal system should be differentiated from theories of coherence in legal reasoning. These focus on arguments, and on how the given arguments are connected. In particular, the notion of coherence in legal reasoning proposed here is a modest one. The article applies this theme to the case‐law of the European Court of Justice in environmental matters. This provides an example of how to deal with conflicts between incommensurable goods, and how to promote coherence by justifying decisions.

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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.     

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.     

Who's on the line? Policing and enforcing laws relating to mobile phone use while driving

This article investigates how laws relating to mobile phone use in cars are written, interpreted and applied in real life. It explores how regulations are imposed, the difficulties that are encountered in terms of enforcement, and how laws have been policed and tested in court. By focusing on the socio-legal context in Victoria and drawing upon international comparisons, we see that stories of enforcement highlight the unique and particular questions asked of existing legal systems by motorists using a mobile phone. Moreover, in describing the problematic process of developing and implementing legal regulations, we see that road rules are struggling to adapt to a transitional technology and that there are significant obstacles to enforcing the laws.     

Constructing C.A.L. tutorials

ON THE assumption that law schools should seek to foster a legal profession which takes ethics seriously, this article explores how it may promote the moral development of its students. Having examined how legal education currently fails in this regards, it explores competing psychological theories of moral development and argues that law schools should seek to start students on a ‘moral apprenticeship’ leading to the development of the necessary moral character to equip them for the ethical challenges of practice. The article then looks at the extent to which ideal methods for promoting moral development can be implemented given the current climate in legal education. In particular, it argues that an excellent and viable means of assisting in the process of moral character development is through student involvement in live‐client clinics, particularly if they are run on an extra‐curricular basis.     

‘Left Pessimists’ in ‘Rose Coloured Glasses’? Reflections on the Political Economy of Socio-Legal Studies and (Legal) Academic Well-Being

This article reflects on the significance of the Journal of Law and Society and critical socio-legal work in the context of changes in the political economy of universities and socio-legal studies. It interweaves an analysis of this shifting political economy with consideration of another topic, namely, academic well-being and mental health, especially in this moment, to demonstrate the continuing pertinence and importance of the left critique of universities. Well-being has become part of a far broader set of counter-narratives to neoliberalism evident in attempts to reposition it as a ‘force of change’, to develop new ways of working that might challenge traditional work cultures and organizational structures, and to resist the marketized neoliberal university and re-envision what a ‘good university’ might be. Rejecting the criticism of ‘left pessimists’ in ‘rose coloured glasses’, I make the case for the continuing significance of engaging in public education and research as a public good.     

Third Way Regulation? Community Legal Service Partnerships

This article examines recent changes in the civil legal aid scheme in England and Wales (now called the Community Legal Service) and the creation of Community Legal Service Partnerships in particular. The article explores three main interests: it illustrates how third way thinking has been applied to the reform of the legal aid scheme under the Access to Justice Act 1999; it explores how partnership fits within theories of public regulation; and it illustrates how professionalism is being re-shaped by a combination of new public management, contractualism and partnership. It points to important limitations in new public law theories of extended accountability and democratised governance as manifested in partnerships.     

The Evolutionary Game‐Theoretic Foundations of Law

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game‐theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well‐grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game‐theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game‐theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.     

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.     

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.     

Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening

This article examines how a politics of speed is manifest in a legal context via a detailed ethnography of the French National Court of Asylum (CNDA). It identifies the temporal, spatial, and organizational ordering techniques that characterize asylum appeals in France and discusses the consequences of these techniques for the way in which the appeal process is experienced by legal decision makers and subjects. It reveals adverse impacts of legal quickening on legal quality, in particular through identifying: ‘cracks’ in the performance of legal roles like lawyer and judge that begin to appear when law is executed rapidly and repetitively; dwindling opportunities to demonstrate and experience respect between parties; and the ‘thinning-out’ of legal process, as heuristics rather than deliberation come to dominate legal reasoning. The article contributes to a burgeoning body of socio-legal literature on law and time by establishing the negative impact of excessive legal quickening on role performance, respect, and legal quality.     

Legitimacy Chains: Legitimation of Compliance with International Courts Across Social Fields

Political and legal globalization brings into question how to best conceptualize legitimacy and authority in the context of a plurality of potential audiences with distinct standards for evaluating legitimacy. This article proposes legitimacy chains, or the articulation of justifications linked through competitive processes of social evaluation across distinct social fields, as a concept for theorizing supranational authority. The concept is developed through an analysis of World Trade Organization (WTO) disputes over zeroing, a method for calculating import dumping. The article focuses on how the legitimacy work of various interlocutors enabled compliance despite contested legal validity claims, ultimately enhancing the authority of the WTO as final arbiter of legitimate trade practices.     

Legal Consciousness: Some Observations

This article argues that US studies of 'legal consciousness' have much to offer UK socio-legal studies. It is, perhaps, surprising that so little attention has been paid to this set of understandings. I seek to rectify that imbalance in the transatlantic relationship by outlining legal consciousness and its critiques. I then draw on homelessness applicant interview data to discuss their 'legal consciousness', illustrating the importance of the value of dignity; how they make sense of their decisions; and the spaces in which legal consciousness may be produced. The study is a limited examination, but it enables us to question the assertion that welfare applicants 'know the law' and (ab-)use it.     

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.     

Mothers, Extraordinary Labor, and Amacasual: Law and Politics of Nonstandard Employment in the South African Retail Sector

This article examines changing social meaning embodying legal categories of nonstandard employment within South African retailing between the 1950s and the postapartheid period. Using archival and interview material, the article shows how trade unions constructed part-time and casual employment through gendered, class, and racial meanings to produce two very different legal categories. Black workers' rights claims in the 1980s developed within these changing socio-legal parameters. The image of the full-time permanent worker became political agent, and in the postapartheid period, increasing numbers of casual workers became marginalized from the union. The relationship between rights and regulation gives us a more complex way of understanding worker politics.     

The Construction and Demolition of the Luhmann Heresy

Among social theories, autopoiesis achieves an almost unequalled level of complexity and abstraction. Yet this has has not in any way deterred commentators from among the ranks of legal and socio-legal academics from launching critical attacks on the theory. This article argues that many of these detractors miss their mark, because their authors either misinterpret the theory by failing to recognize its radical nature and the new paradigm that it introduces, or, in the more extreme cases, project onto the theory immoral or irrational ambitions which are nowhere to be found in the writings of Niklas Luhmann or other autopoietic theorists. All this brings to mind Nabokov's novel Pale Fire, which also is concerned with criticism, projection and misinterpretation (as well as self-reference and insanity). In that novel the text is a poem, while the plot, concerning a paranoid literary critic, unfolds in the notes commenting on this poem. This article reverses this device by placing the main commentaries and criticisms in the main text and the `autopoietry', extracts from the writings of autopoietic scholars, which form the subject of the critical attacks, in the footnotes.     

Becoming a Threat: The Burqa and the Contestation Over Public Morality Law in France

Through an examination of legislative debate and court opinions, this article illustrates that the French understanding of public order policing as a bulwark of freedom and national sovereignty deeply informed the development of (and contestation surrounding) the 2010 ban on all facial coverings in public. This ban notably includes the burqa or niqab, garments worn by a small minority of Muslim women in France. This article has two aims. The first is to expand on the sociolegal argument about the contested nature of rights protections and constitutional constraints on legislative authority by highlighting how a nation's legal culture can profoundly shape that contestation. The second aim of this article is to show, through a technique called legal archaeology, how longstanding French views on rights confront current European‐inspired alternative views that would give more weight to individualistic protections against state action than has traditionally been the case in France.     

Changing Patterns of Legal Representation in Divorce: From Lawyers to Pro Se

Governmental assistance for legal representation in civil cases is far greater in the United Kingdom than in the United States of America. This article explores the extent of legal support for low–income Americans, particularly in the area of family law. Examination of the data on self–representation across the United States and over time shows decreased reliance on lawyers. Drawing on institutional and individual perspectives, the article then explores why individuals choose to represent themselves in divorce. What do lawyers add to a divorce besides cost? The article suggests patterns of lawyering depending upon the lawyer and the resources of the client. While some pro se individuals may thrive in the divorce process without the need of a lawyer, others are disadvantaged by the lack of services available to them. The matching process between case needs and legal representation does not work.