Socio-legal Literature Research Articles

The Courtroom as Four Landscapes: Reflections on Terrorism Trials Through Ethnographic Research

In the past decade, Western European countries such as Germany, the Netherlands, the UK and France have seen a sharp increase in terrorism trials. Studying these trials can provide unique insights into which terrorist offences come before the court and what legal challenges arise from this relatively novel practice. To unpack the complexity of terrorism trials, we adopt an empirical approach to terrorism trials. Based on 3 years of extensive ethnography in Dutch courts, the paper makes two contributions to the socio-legal literature. Methodologically, our ethnography connects traditional empirical methods to artistic tools. As such, we further the current debates in socio-legal studies on courtroom ethnography. Empirically, we present critical insights on the interaction between pre-emptive speculative security measures and legal procedures in the prosecution of terrorist activities.

Frustration and fidelity: how public interest lawyers navigate procedure in the direct representation of asylum seekers

AbstractPublic interest lawyers seek to empower clients through collaborative approaches to direct representation that redistribute legal knowledge and affirm clients’ agency; however, the legal settings in which attorneys operate shape their capacity to subvert dynamics they consider oppressive. Based on twenty months of ethnographic fieldwork at a legal nonprofit serving asylum seekers in Los Angeles, this study explores how the broader environment of a restrictive immigration system transforms the aspirations, possibilities, and strategies of public interest lawyering. Drawing from sociolegal literature on cause lawyers, access to justice, and the U.S. immigration system, the article argues that the politicization of the U.S. immigration bureaucracy destabilizes foundational legal norms, hindering the agenda of public interest attorneys. Procedural formalism constitutes one of the only resources at attorneys’ disposal, yet here it often impedes lawyers’ ability to disrupt perceived power hierarchies. Specifically, the prevalence of complex legal procedures that obstruct access to asylum reconfigures opportunities to uplift clients. These findings illuminate how hostile legal settings strain lawyers. They also contribute to timely debates around how attorneys protect access to justice and advance meaningful social transformation.

The landlocked ocean: landlocked states in BBNJ negotiations and the impact of fixed land-sea relations in global ocean governance

This article examines the multifaceted dimensions of landlockedness within the realm of international discourse, with a particular focus on its implications for managing global commons. Drawing from socio-legal literature and auto-ethnographic experiences during the recent intergovernmental negotiations for the BBNJ agreement under the 1982 Law of the Sea (UNCLOS) as a case study, the paper prompts essential inquiries into the true essence of being landlocked in the face of global environmental challenges. Beyond traditional geographical definitions, the paper reveals the dynamic nature of landlockedness and underscores the intricate interplay of social, economic, cultural, geographical, and political factors in determining who has access to ocean space and resources and who does not. It emphasizes that landlockedness is not a static legal or physical characteristic but an ongoing process shaped by historical and political constructs. Expanding beyond the national level, the article illustrates how individuals, whether coastal or inland, experience isolation from the ocean, influencing their interactions with, perceptions of, and regulatory proposals for the ocean. This approach illuminates existing paradigms in the access, use, and management of space and resources. In conclusion, the article advocates for more inclusive and adaptable approaches in international policy debates. It calls for a departure from rigid classifications, urging for upholding collective action, recognising the intricate connections between geography, politics, law, and the environment.

How enforcement shapes compliance with legal rules: the case of long-term care homes in Ontario

Abstract This paper contributes to the legal and socio-legal literature on long-term care (LTC) facilities (also known as nursing homes) by drawing from the responsive regulation literature and empirical research conducted in 2021 and 2022. Enforcement is an under-explored aspect in the legal and socio-legal literature on LTC. This research asks how the regulator’s enforcement activities shape compliance of LTC homes in Ontario. This paper reports the results from eleven semi-structured key informant interviews with associations that represent LTC facilities, advocacy organizations, unions, and professionals, such as lawyers. The current enforcement activities do not appear to evoke responsiveness in at least some of the LTC homes because the regulator’s approach is not dynamic: the regulator does not change its mix of “persuasion” and “coercion” in order to respond to the motivations and behaviours of homes. Inspection and enforcement activities have had little impact on how homes respond to rules.

On the issue of freedom of conscience

This article examines the problem of the legal relationship of the state to religion, religious organizations and believers on the basis of the theoretical results of domestic and foreign scientific research. An analysis of the formation and development of modern materials on the problem of freedom of conscience and religious organizations in the sociolegal literature is presented. Protestantism laid the foundation for the idea of freedom of conscience, i.e., the religious freedom of the individual in the context of human rights. Avtorami suggests an interpretation of the definition of “conscience” and “freedom of conscience” through the prism of religion as the right of believers and analyses the current Law of the Republic of Uzbekistan and the CIS “On freedom of conscience and religious organizations” in the context of state-religious organization relations. Conscience as an ethical category has a purely personal character, expressing the inner spiritual and psychological "I", a sovereign spiritual phenomenon from the political and legal spheres of civil relations. The authors identify the problematic points in the regulation of relations between the rights and freedoms of believers to religion and associations in the legal acts of the country.

Performing Professionalism – Emotions in Asylum Courts

While socio-legal literature widely discusses the role of emotions in courts, refugee studies have yet to embrace a perspective that goes beyond viewing emotions as dichotomous to reason and objectivity. This paper fills this gap by using a socio-legal lens to investigate the role of emotions in asylum decision-making in courts. Based on substantial ethnographic fieldwork at two distinct German administrative courts, this paper shows how judges navigate emotions ranging from empathy to frustration and the way these shape asylum proceedings. The paper argues that judges actively manage the emotional aspects of their work while complying with the cultural script of dispassion, which includes the public performance of impartiality and protective professionalism, distancing themselves from difficult decisions. It highlights how emotions in courts can reveal the complex negotiations of belonging that take place in asylum courts. Therefore, it advocates for a view on courts, particularly asylum decision-making in court, which incorporates judicial emotions.

The Womb Monologues: Toward A Mizrahi Feminist Theory of Israeli Law

Abstract Israeli legal feminists have largely overlooked the constitutive theoretical developments that introduced the “third wave” to global feminism. Drawing on the critical insights of black and postcolonial feminist discourse, this Article introduces Mizrahi feminism to Israeli jurisprudence. It aims to lay the groundwork for a new theoretical school of critical legal scholarship in Israel and expose the multidimensional oppression endured by Mizrahi women in Israeli law and history. To this end, the Article focuses on a particular slice of the legal history of the Israeli abortion law reform of the 1970s. Analyzing extensive parliamentary protocols and institutional archival records, the Article pioneers the deconstructive toolbox of Mizrahi feminism in order to extract the subversive ethno-class narrative that has been left invisible in the feminist story of Israeli abortion law—a sorely neglected history of a separatist, quality-control regulatory mechanism that restrains the Mizrahi womb and Orientalizes its female carrier as “unqualified” vis-à-vis the “dignified” Ashkenazi womb. This intellectual exercise in legal historical study does more than unveil the complex dynamics behind the regulation of the female body in Israel. It also gives a voice to an intra-Jewish ethnic female minority that otherwise remains a transparent and denied gender category in the sociolegal literature.

Auditors as intermediaries in the endogenization of an accounting standard: The case of IFRS 15 within the telecom industry

This study is about auditors’ role as regulatory intermediaries in the international accounting standard-setting process. Drawing from the socio-legal literature, we use a theoretical framework combining the Regulator-Intermediary-Target (RIT) model and the legal endogeneity theory that sheds light on auditors’ role in fostering the emergence of an agreed-upon meaning of a standard. While standards are open to different possible interpretations at implementation stage, we argue that standard-setting is a critical step at which a significant part of standard’s meaning is locked in. Hence the importance of discussions over the substance and wording of standards for parties involved in the due process. We investigate auditors’ support to their clients engaging in such discussions leading to the co-construction of the standard’s meaning and thus to the potential endogenization of the standard. For this purpose, the IASB due process is conceptualized as a regulatory conversation (Black, 2002). We use a single case study carried out in the office of one large accounting firm. Our examination focuses on discussions between the IASB and telecommunications industry representatives around the draft IFRS 15 on revenue recognition, as depicted by the latter’s auditors. We find that auditors from the firm’s in-house consulting network play a pivotal role in assisting field auditors and their clients engaging with the IASB while preserving the firm’s reputation. Taken as a whole, our findings suggest that auditors played a pivotal role as intermediaries between the IASB (the regulator) and the targets (Telco firms) and as such contributed to the partial endogenization of the draft IFRS 15. We discuss the implications of our findings for conceptualizing auditor’s role in accounting standard-setting.

Defining Crimes in a Global Age: Criminalization as a Transnational Legal Process

The design of empirical research and theory-building projects in the sociolegal literature on criminalization is often premised on a presumed dichotomy between domestic and international planes of criminal lawmaking. However, in a global era in which domestic processes of criminalization are increasingly shaped by norms, institutions, and actors developed and operating outside national borders, criminalization research should develop a new theoretical frame for studying how international and domestic practices of criminal lawmaking interact with one another. This article builds from the theory of transnational legal orders and the recursivity of law to propose a transnational processual theoretical framework for the study of criminalization. This framework provides tools for investigating how criminal prohibitions are constituted through recursive interactions between actors operating in international, national, and local sites of legal practice. It draws on empirical studies to show how the processes of constructing, applying, and contesting definitions of international and transnational crimes are embedded in broader structures of power. The article demonstrates how a processual theory of transnational criminalization sheds light on important sociolegal questions about the driving forces and consequences of current efforts to harmonize the definitions of criminal activities across national jurisdictions.

The difference a wire makes: planning law, public Orthodox Judaism and urban space in Australia

AbstractThis paper considers a planning dispute that surrounded the construction of a Jewish religious installation (called an eruv) in the public urban space of an Australian suburb. The aim of this case-study is to examine the role of law in regulating Jewish difference – a topic that has to date received little attention in the socio-legal literature concerned with the governance of religious diversity. In analysing residents’ objections to the eruv, the paper explores long-standing anxieties about Jewish particularity in Australia and beyond as they surfaced in opposition to the eruv. It shows how the law continues to exclude certain forms of Jewish difference that are perceived as transgressing dominant religious and racial norms. Moreover, the paper highlights the particular ways in which planning law assigned value to these anxieties and legitimised the marginalisation of Orthodox Jews, emphasising the significance of local law as a site for exclusion and inequality.

Technological Solutions for Complex Problems: Emerging Electronic Surveillance Regimes in Eurasian Cities

This essay examines ‘smart city’ initiatives rapidly emerging across Eurasia that are aimed at the surveillance of disorderly and criminal behaviour in public spaces. They are a result of both locally driven demand to modernise law enforcement and global pressures to innovate. We specifically compare Kyiv, Almaty, and Bishkek. Each city differs in regard to who initiated smart city policies and under what conditions new technology was purchased from foreign vendors. Our essay contributes to the growing socio-legal literature on Eurasia by analysing how these electronic surveillance projects are used to manufacture an orderly, safe society and achieve modernity without the burden of deeper political change.

Can Non-discrimination Law Change Hearts and Minds?

A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed.

Insurance as Governance for Outer Space Activities

ABSTRACT Despite sixty-plus years of technological development, space activities are still ultra-hazardous in nature. These activities range from essential to modern life, like telecommunications, to futuristic and forward thinking, such as space tourism. In order for these activities to not only continue but also develop and grow, their inherent risk must be managed. Political will is lacking at an international level to create new binding rules for activities in space. Likewise, states are reluctant to unilaterally impose stricter, even if ultimately beneficial, regulations on their entities for fear that their domestic industries will flee abroad to greener pastures, creating a regulatory prisoner’s dilemma. States also usually require certain levels of insurance and indemnification to protect themselves against potentially costly mishaps. Likewise, banks and investors will often require insurance to protect their investments, as space business tends to be costly. Thus, a disproportionate amount of responsibility and authority can be transferred to a small number of global space insurers. They may be uniquely positioned to enforce, or at least promote, mechanisms to increase safety and sustainability in the commercial space industry. Increasing safety and sustainability in outer space may help to keep insurance premium costs from growing out of control for these hazardous activities. This article analyzes the sociolegal literature on risk and insurance as governance and applies these concepts to the space sector, considering the possibility that space insurers have become de facto regulators in space and exploring the implications of that possibility.

Responsiveness and the Role of Rights in Medical Law: Lessons from Montgomery†.

Over time, medical law has moved away from paternalism in favour of an approach grounded in patients' rights. Using Montgomery v Lanarkshire Health Board (2015) as a case study, we offer a deeper analysis of this emerging approach. We argue that patients' rights should be evaluated in terms of their contribution to making medical law more socially responsive, by developing it to give effect to social needs and aspirations pertaining to health care. Although rights can play an important role in achieving social responsiveness, they also carry the risk of entrenching approaches unrepresentative of patients' actual needs and empirical realities. This is evident in Montgomery, where the law, despite being derived from General Medical Council (GMC) guidance, has effects that differ significantly from the GMC's goals. Drawing on socio-legal literature, we outline a new approach for guiding the use of rights in medical law focused on the functional consequences of rights in facilitating patients' aspirations, and the capacity of rights to respond to social and institutional contexts in which medical interaction occurs. We conclude by showing how this approach, applied to informed consent, would produce a different and arguably a superior duty, providing a sounder basis for responding to patient needs.

Between Freedom and Justice: Popular Protest and Jurisdictional Contestation of Militarized Governance in Indian-Controlled Kashmir

In Indian-controlled Kashmir, local residents express aspirations for freedom from Indian-militarized governance even as they demand state accountability for pervasive everyday violence. Kashmiris negotiate this complexity through jurisdictional contestation, asserting alternative forms of authority to speak about law and develop strategies for justice and political transformation. Drawing from sociolegal literatures of jurisdiction and global legal pluralism, we analyze a Kashmiri community forum confronting institutional denial in a prominent case of sexual violence and murder involving state armed forces. We analyze how Kashmiri actors from diverse normative communities drew on popular understandings of law to claim competing forms of authority, give meaning to the case, and develop strategies of response. We also explore how participants, through the work of jurisdictional contestation, made global legal ideas locally meaningful and relied on jurisdictional myths of struggle and justice to motivate resistance and establish spaces of hope.

The Unintended Consequences of the Goldstone Commission of Inquiry on Human Rights Organizations in Israel

Abstract Scholarly writings on internationally constituted commissions of inquiry (COIs), as outlined in the introduction to this symposium, give inadequate attention to the effects that they might have on local disputes that these bodies are often created to address. The United Nations Fact-Finding Mission on the Gaza Conflict (2009), popularly known as the Goldstone Commission, had unintended and unforeseen consequences at the domestic level. Specifically, the Commission caused a severe backlash against human rights organizations in Israel (IsHROs). This article analyses the backlash against the Commission and the effect of that backlash on human rights organizations and human rights advocacy in Israel and the Occupied Palestinian Territory in the first few years after the release of the Goldstone report. This case study reveals how a government can use a COI intervention in an ongoing conflict to deflect criticism against it and to delegitimize local human rights organizations and, as a result, to intensify enemy–friend dynamics within a conflict. The findings of this case study thus challenge the assumption of much of the socio-legal literature that the interaction of international human rights institutions with domestic actors leads to positive human rights change. But the case study also adds a new dimension to the academic and policy literature that has been critical of the international human rights enterprise in recent years. Despite delegitimization campaigns, international funding has increased for many IsHROs, and, eventually, some groups have become even more visible and have enjoyed, internationally, a higher reputation and greater credibility. The Commission’s experience thus demonstrates that the establishment of COIs in deeply divided conflict societies can have negative, as well as positive, implications on human rights.

Citizens’ accounts of police use of force and its implication for trust in the police

ABSTRACT Despite a wealth of literature covering police abuse of power and excessive use of force in the developed West, a major challenge in socio-legal literature is the paucity of empirical research that accurately assess the same constructs in post-colonial African society. The few existing studies have shown that the police in developing countries are more likely to abuse their powers and are largely not accountable to the public. The current study presents an important attempt to empirically assess what is known and what needs to be learned to better understand and prevent police abuse and the use of excessive force; and how the use of force variables influence trust in the police. Since there is no single, universally agreed-upon definition of police use of force, in this current study a context-specific constructs that are peculiar to police-citizen relations in Nigeria were adopted for the data analysis. The result confirmed that police abuse and the use of excessive force have negative effect on trust in the police. The implications of these findings are discussed.

Fathers as carers in UK law and policy: dominant ideologies and lived experience

ABSTRACTThis article explores how working fathers are conceptualised within the UK’s work-family law and policy framework and whether a dominant ideology of fatherhood can be discerned. The socio-legal literature on men and masculinities is considered alongside established feminist theory on families, paid work and unpaid care to provide a backdrop to the analysis of current policy provision in this area. Three ‘ideal’ type ideologies of fatherhood are identified (‘absent’, ‘involved’ and ‘active’) which are used to critically examine the current legal framework. Despite claims to the contrary, the current framework supports and reaffirms the gendering of care so that the intransigence on the part of men and women to rebalance related responsibilities is unsurprising. The authors argue for a more care-centric approach to work-family policy in place of gender-specific normative modelling. A legal framework which enabled and encouraged all care providers to participate regardless of gender and biological relationship would not only improve the workplace experiences of women, but also enable men to develop and fulfil their care-giving aspirations and potential.

Safe Social Spaces

What are the building blocks of safe social spaces? This Article explores this question through a case study of nonconsensual image sharing among queer populations on geosocial dating apps and makes three important and novel contributions to the socio-legal literature on social life online, privacy by design, and cyberexploitation. First, it reports and analyzes the quantitative results of a survey of queer geosocial dating app users, showing that this population is victimized by nonconsensual image sharing at far higher rates than both queer persons, generally, and the broader population. Second, combining these quantitative data with qualitative interviews with queer dating app users and responses to open-ended questions, the Article describes how these apps create powerful norms of disclosure that make it all but required that users share personal information and how users navigate their privacy as a result. Third, based on this case study and a comparison with other social environments of disclosure—Alcoholics Anonymous meetings, teams of coworkers, and attorney-client relationships—the Article argues that safe social spaces are created when norms of disclosure are balanced by equally as powerful norms of trust backed by law. The Article then shows how law plays an essential role in creating and maintaining those norms of trust and protecting users from invasions of privacy.

Brokering Access Beyond the Border and in the Wild: Comparing Freedom of Information Law and Policy in Canada and the United States

Contributing to literature on jurisdictional variation in freedom of information (FOI) law and policy, we draw from accounts of experiences of FOI requests submitted to police agencies in nine Canadian provinces and ten US states. We conceptualize these experiences using notions of “brokering access,” “law in the wild,” and “feral law.” Our findings demonstrate key differences in how public police agencies store, prepare, and disclose information at municipal and provincial/state levels in Canada and the US, meaning that FOI‐related feral lawyering in Canada and the United States differs and fluctuates because of the variation in the mode of contact with FOI coordinators, fee estimate practices, and procedures for and responsiveness to appeals. In conclusion, we discuss the implications of our findings for methodological and sociolegal literature about FOI requests and for provincial/state FOI policies in both countries.