Socio-legal Scholarship Research Articles

Taking Law Seriously: The Challenges of Law as Research Data in Socio-legal Scholarship

‘Law-as-data’ is often understood in terms of computational data. This article reframes it around a research-centred notion of data, broadening the methodological possibilities available to empirical legal research. This approach transcends the qualitative/quantitative divide, identifying common challenges that arise when law is treated as research data. Methodological tools from the social sciences and examples from recently published socio-legal scholarship are used to demonstrate how law presents unique challenges at the stages of conceptualisation, operationalisation and coding. These challenges stem from factors such as the non-commensurability of legal texts, the fluidity and contested meaning of legal notions, the difficulty of systematically gathering legal data and the risk of bias towards data-driven research rather than law- or reality-centred inquiry. However, strategies and best practices can be developed to address or mitigate these risks. Legal academics are particularly well suited to this task, given the high level of expertise required to effectively leverage law as research data. The article argues that a true methodological naturalisation of law as research data, which embraces the unique characteristics and limitations of law as a data source, would greatly benefit legal studies by diversifying its methodological toolbox while preserving its specificities.

Neo-Institutional Analyses of Criminal Legal Organizations and Policies

Since emerging in the late 1970s and early 1980s, neo-institutional theory has been a popular framework for understanding law, legal institutions, and policies on the books and in action. Neo-institutional theory has been particularly useful for explaining diverse criminal justice phenomena, from changes in penal law and policy statements to on-the-ground practices across police departments, courts, carceral facilities, and community corrections. This review describes how scholars of the criminal legal system have used neo-institutional theory and where there is room for further utilization. Additionally, it discusses how and why neo-institutional theory is particularly useful for sociolegal scholars, and not only those studying criminal legal organizations and policies.

Science of Norms as the Next Phase of the Sociology of Law and Socio-Legal Scholarship - Sociology of Law as the Science of Norms. By Hakan Hyden, New York: Routledge, 2022, 328 pp. Paperback, US$52.00

Science of Norms as the Next Phase of the Sociology of Law and Socio-Legal Scholarship - Sociology of Law as the Science of Norms. By Hakan Hyden, New York: Routledge, 2022, 328 pp. Paperback, US$52.00

Citizen awakening? Exploring legal consciousness in a context of mass political mobilization

AbstractUnder what conditions will people be inclined to seek remedy when facing rights violations? While some socio-legal scholars have found structural position and/or the ideological macro-context to be the key factors shaping individuals’ legal consciousness, often inhibiting their pursuit of remedies, others contend that social experiences and political interventions, including participation in social movements, affect people’s willingness to demand redress. What happens, then, when a diffuse popular mobilization challenges a state’s fundamental normative framework and demands justice and rights for long-excluded sectors of the population? This article offers empirical and theoretical insights to these debates based on results from a nationally representative survey conducted in Chile at the height of such a mass political mobilization. In this context of widespread citizen engagement and collective claim-making, we find that participation in the protests and self-perceived knowledge of where to turn are statistically related to individuals’ professed willingness to pursue a formal remedy across two hypothetical rights violation scenarios. These findings suggest that participation in protests might have an empowerment effect on those who take part, even among disadvantaged groups, opening new avenues for research at the intersection of socio-legal and political participation studies.

Towards a plea-bargaining theory: Need to impose legal and deontological limits for its use

This paper proposes to give the kick to discuss a legal theory about using plea bargaining in Latin America. First of all, we do a review of the different research that legal and sociolegal scholars conducted on this phenomenon. Then, we describe the risk of plea bargaining in the US criminal justice system based on the recent report by the American Bar Association and ask: Can something similar be thought of for our country? Finally, and after pointing out some hypotheses for future work, we conclude the necessity of building a theory on plea bargaining to establish deontological and legal limits in its use.

Towards a plea-bargaining theory: Need to impose legal and deontological limits for its use

This paper proposes to give the kick to discuss a legal theory about using plea bargaining in Latin America. First of all, we do a review of the different research that legal and sociolegal scholars conducted on this phenomenon. Then, we describe the risk of plea bargaining in the US criminal justice system based on the recent report by the American Bar Association and ask: Can something similar be thought of for our country? Finally, and after pointing out some hypotheses for future work, we conclude the necessity of building a theory on plea bargaining to establish deontological and legal limits in its use.

Rethinking and Advancing a ‘Bottom-up’ Approach to Cultural Participation of Persons with Disabilities as Key to Realising Inclusive Equality

Abstract Debates about cultural participation of persons with disabilities within legal and socio-legal scholarship and within disability studies tend to remain disconnected. This article brings legal analysis and other academic disciplines into a critical dialogue. It sheds light on how the right to cultural participation is understood from the bottom up, building on a study carried out across Europe. Participants in this study perceived opportunities to participate in, and to contribute to, arts and culture in ways that are consistent with the human rights approach to disability as expressed in the UN Convention on the Rights of Persons with Disabilities, and as central to the concept of inclusive equality. Cultural participation was also understood as intrinsic to the humanity of all people, as vital to inclusion in mainstream life, as capable of communicating experiences or identities not otherwise represented, and as potentially transformative of art-forms and ultimately, of society.

“He Is Still Your Father”: Tetherings, Social Welfare, and Troubled Parental Maintenance Litigation in Taiwan

This article is a story about tetherings, a concept that illuminates the power of law in the relational dynamics of individual-family-state. The concept emerges from my qualitative study of parental maintenance litigation in Taiwan over the provision of financial support to troublous parents, who mistreated their children when they were young. Troubled parental maintenance litigation arises when nobody wants to look after these elderly people, and the state restricts their access to social welfare by holding their estranged children financially responsible. Such litigation leads to empowerments and disempowerments for litigants, as well as legal reform and detriments for the state. Bridging sociolegal scholarship on continuing relations with feminist vulnerability theory, “tetherings” is both an empirical and a normative concept concerned with the relational nature of power, and the openness of humans and institutions to harms and other changes. The concept is empirical, being the paradigm through which I trace disputes and other relational processes of individual-family-state; it is normative because my empirical analysis aims to expose the state’s workings and detail how people respond to law and power that binds them to one another and the state. “Tetherings” advances feminist vulnerability theory and offers a circumspectly optimistic view on the potential of law.

Navigating Legal Landscapes

This article is about an ownership dispute between two Palestinian families in the West Bank. The dispute moves between Palestinian and Israeli forums while drawing upon the legal patchwork of Ottoman, British, and Jordanian land laws, and Israeli military amendments. The multilayered legal terrain coupled with the jurisdictional tension allowed some legal maneuvering. The article explores how the families maneuvered the legal landscape, but it complicates the use of forum shopping in the Palestinian context by adding how settler-colonial domination and political economy play into this phenomenon. Settler colonialism has served to intensify the Palestinian land market through a curated land scarcity, all while managing the distribution of relative “security” and risk of land title. This has affected land value, land availability, and land use. When the settler legal system is known to render Palestinian ownership insecure, why would some Palestinians still choose Israeli registration as a forum in which to register their lands, considering these risks? The article argues that land ownership is a process through which layers of unevenness are inscribed and reproduced. In focusing on the process, the article adds to sociolegal scholarship to explore the role knowledge and capital play in forum shopping.

EU Digital Competition Law: The Socio-legal Foundations

AbstractCompetition policy in the EU and UK is in the process of a significant reconfiguration. Its key postulates, methodologies, and normative goals are being subject to intense discussion and revision. The emergence of sui generis ‘new competition tools’ in the area of digital markets—EU Digital Markets Act and UK Digital Markets, Competition and Consumers (bill)—epitomises this trend. The purpose of this Article is to attempt to provide legal theoretical foundations for the new subfield of competition law and policy by systematising and conceptualising these trends into the framework of socio-legal scholarship.

Toward a Sociology of International Law: John Hagan and Beyond

Socio-legal scholars these days devote themselves routinely to the study of international law. It was not always thus. In the late twentieth century, no more than a handful of law-and-society scholars asked themselves how international law worked. Even fewer ventured into the field. John Hagan was one of those who did and the first sociologist to study empirically—and rigorously—what we now call international criminal law. In this article, I use Hagan’s oeuvre to reflect on the intellectual history of international legal scholarship in the twenty-first century. I argue that Hagan brought three things to the study of international law: criminology, methodology, and ideology. I trace each of these contributions in detail, assess their intellectual import, and relate them to alternative ways of seeing international law. The story I tell is of a pioneering scholar who charted an empirical path toward the sociology of international law, but whose moral compass—acquired during his socialization in the Vietnam era—also occasionally blinded him to the dark sides of virtue.

Slavery’s Legacy of White Carceral Advantage in the South

Legacy of slavery scholarship has experienced a renaissance as of late, with researchers across numerous disciplines focusing increased attention on the long-term ramifications of America’s original sin. Using quantitative methods these researchers have found that where slavery was deeply entrenched—particularly in the South—racial inequality and Black disadvantage across numerous domains is exacerbated. While this research has contributed enormously to understanding slavery’s legacy in the South and its nefarious consequences for Black communities, little attention has been paid to the other side of slavery’s legacy of inequality—notably, the many ways White populations continue to benefit from slavery. The state’s carceral apparatus represents a significant area of such advantage and, yet, despite the genealogical linkage historians and socio-legal scholars have drawn between the two institutions, few studies empirically examine slavery’s enduring effects on modern incarceration. Using quantitative methods, this article examines whether—and, if so, how—greater slavery levels in Southern counties generates carceral advantage for contemporary White populations. Where slavery levels were once greater, White populations living in those same areas today—relative to White populations living in areas where slavery was less deeply entrenched—have accrued significant formal social control benefits in the form of lower jail incarceration rates. This effect, however, operates indirectly. Mediation analyses reveal the carceral privilege White populations enjoy in higher slave-dependent locales is generated through the advantageous shaping of White social and economic outcomes.

Using the blockchain to enable transparent and auditable processing of personal data in cloud- based services: Lessons from the Privacy-Aware Cloud Ecosystems (PACE) project

The architecture of cloud-based services is typically opaque and intricate. As a result, data subjects cannot exercise adequate control over their personal data, and overwhelmed data protection authorities must spend their limited resources in costly forensic efforts to ascertain instances of non-compliance. To address these data protection challenges, a group of computer scientists and socio-legal scholars joined forces in the Privacy-Aware Cloud Ecosystems (PACE) project to design a blockchain-based privacy-enhancing technology (PET). This article presents the fruits of this collaboration, highlighting the capabilities and limits of our PET, as well as the challenges we encountered during our interdisciplinary endeavour. In particular, we explore the barriers to interdisciplinary collaboration between law and computer science that we faced, and how these two fields’ different expectations as to what technology can do for data protection law compliance had an impact on the project's development and outcome. We also explore the overstated promises of techno-regulation, and the practical and legal challenges that militate against the implementation of our PET: most industry players have no incentive to deploy it, the transaction costs of running it make it prohibitively expensive, and there are significant clashes between the blockchain's decentralised architecture and GDPR's requirements that hinder its deployability. We share the insights and lessons we learned from our efforts to overcome these challenges, hoping to inform other interdisciplinary projects that are increasingly important to shape a data ecosystem that promotes the protection of our personal data.

“From the lease’s point of view”: the role of tied leases in shaping the UK pub sector

PurposeMuch like their residential counterparts, commercial leases have a reputation problem. Although often derided as painfully dull and mundane documents, residential leases have begun to be interrogated by socio-legal scholarship with renewed interest. This paper aims to continue this line of work in the commercial context through a detailed examination of a widespread form of leasehold in the pub sector: the “tied lease”.Design/methodology/approachThe paper draws on interviews with 14 publicans and archival research.FindingsThe author argues that the lease is a decisive actor in determining the balance of power between publicans and pub-owning companies and shaping the physical environment of pubs in the UK.Originality/valueThe author’s broader agenda is to argue that socio-legal scholars’ renewed interest in leases should not be confined to the residential context: commercial leases warrant far greater socio-legal scholarly attention.

Regulatory pluralism and the resolution of collective labour disputes in Southeast Asia

This paper proposes a new framework for the analysis of collective labour dispute resolution. It begins by explaining why dominant conceptual frameworks in IR and labour law scholarship are insufficient on their own to capture the plurality of regulatory sources that bear upon collective labour dispute resolution. The authors then draw on theoretical insights from regulatory studies on the presence and interaction of multiple regulatory orders, and socio-legal scholarship on dispute resolution, to propose a framework that enables the investigation of both the formal and informal aspects of labour dispute resolution and their interplay. This framework disaggregates data collection and analysis into five components: (i) actors; (ii) nature of dispute; (iii) arenas and processes; (iv) interactions; and (v) outcomes. The framework is particularly tailored to, and based on evidence from, Southeast Asia, but may also have wider application beyond this region.

Joseph Bouet in the Durham criminal court (c.1825–1856): picturing nineteenth century courtroom actors. Part 1: lines of enquiry

ABSTRACT Between c.1825–1856, a French-born artist, Joseph Bouet, made approximately sixty pencil sketches of legal actors in the courtroom at Durham; including images of judges, lawyers, and defendants. Legal imagery from this period in North East England is rare and our research (presented in two parts) is the first detailed analysis of these sketches by legal scholars. This article introduces our preliminary analysis of Bouet’s sketches. We explore potential theoretical approaches and demonstrate that the images show the law in practice in a specific nineteenth century context. The value of our analysis is in revealing what the images tell us about legal institutions, the people who worked within them and the ‘objects/subjects’ of the law. The study makes an important contribution to socio-legal scholarship in demonstrating the value of such images as an underused source in legal historical research. The sketches are also the subject of a second article, Part 2 which presents three detailed case studies. The articles can be read as separate and independent pieces, but each benefit from being read in conjunction with the other.

Justice in the Jungle: Litigation and Judicial Violence in Calais Refugee Camps at the French–UK Border

This contribution critically addresses the migration-as-crisis framework by focusing on litigation in the case of camp evictions in Calais, on the French–British border. Courts are spaces of confrontation between actors (judges, lawyers, activists, exiles, etc.) who have different conceptions of migration, of fundamental rights, and of the ways of guaranteeing them. Based on an ethnographic fieldwork methodology (interviews with judges, lawyers, and activist legal supporters of migrants; observations of hearings; and administrative and police archives and documents) and drawing upon socio-legal scholarship, this article underlines how the “migration-public order” nexus influences the way courts address migration by reducing the effectiveness of some basic legal principles and fundamental rights. In particular, I focus on the social construction of judicial decisions and the instrumentalization of justice resulting in creating judicial violence: I argue that this judicial violence at the border is paradigmatic of a “justice crisis” which has direct effects on the agency of legal supporters (lawyers and activist legal experts), who try to defend the rights of exiles through judicial tools, and ultimately on their (lack of) confidence in justice.

The Form of Forms: Everyday Enablers of Access to Justice

Forms are vehicles that register the everyday. A bureaucratic form starts a dialogue between an individual and the State in a particular area of public administration. The visual design of bureaucratic forms shapes what is registered and how personal identity is documented in the eyes of the State. This article is situated in the field of administrative justice and argues that we must increase the scope for personal narrative in the design of bureaucratic forms. Meers notes that there has been no sustained research into application forms despite the importance of forms in the administration of the welfare state. By drawing on sociological scholarship on registration and narrative together with socio-legal scholarship on design, the ideas explored offers a novel and interdisciplinary approach to scholarship on the form of forms.

Knowledge production through legal mobilization: Environmental activism against the U.S. military bases in East Asia

AbstractThere is growing interest in social movement actors as knowledge producers, but many movements have limited ability to access or produce credible, authoritative information. Building on sociolegal scholarship and social movement studies, we show how movements can overcome knowledge gaps they have via-à-vis state authorities and contribute to public knowledge through institutional tactics. We argue that features of the process of legal mobilization activate mechanisms that bolster movements' credibility, reveal or generate information, and thereby facilitate social movement knowledge production. We theorize these dynamics by analyzing environmental activism against U.S. military bases in Japan and South Korea, which allows us to leverage most similar legal contexts and types of claims to identify and illustrate the mechanisms.

Registering Cosmetics? The Constitution of Legal Form and Injurious Substance in Canada (1945-1946).

In midcentury Canada, legislative drafters, government lawyers, food and drug officials, and ministers grappled with cosmetics. Faced with constitutional concerns about cosmetic licensing, these actors drafted legislative amendments that would instead require cosmetics to be registered. In contrast to people or land, the registration of products, substances, or things has received little attention in sociolegal scholarship. Building on work investigating law's temporalities and materiality, this account traces how in-formed by the constitutional doctrine that apprehended substances through the legal form of prohibition, cosmetics were rendered in draft legislation as constituted of ingredients that may cause injury. Injury, in this account, is a material-temporal regime. Yet cosmetic injury was neither static nor singular, as it was catalysed differently by distinctive regulatory devices. This is shown by last-minute changes to the bill which retooled cosmetic registration, from an information extraction device for anticipating future harms, into a recording device for capturing latent harms.