Socio-legal Scholarship Research Articles

Judging pictures: a case study of portraits of the Chief Justices, Supreme Court of New South Wales

This essay is about portraits: judicial portraits. It offers a case study of the interface between law and visual culture. Its object of enquiry is a collection of pictures (painted and photographic), depicting the sixteen Chief Justices of the Supreme Court of New South Wales, Australia, from 1824 to the present day. The original paintings hang in the Banco Court, Sydney. The photographs and digital copies of all the images are on the Court’s website. Beginning with a brief review of socio-legal scholarship on the judiciary, the essay explores existing work on the visual image of the judge. In response to the limitations of that research, the paper turns to art historical scholarship to facilitate an analysis of the aesthetic and technological factors (the continuities and changes) that shape and generate the meaning of these judicial images. It explores the relevance of context upon meaning. The paper demonstrates a number of methodological approaches and reflects upon the contribution that a study of judicial pictures may make to socio-legal scholarship.

Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre

RésuméSitué sur le site de l'Établissement de Millhaven à Bath en Ontario, le Centre de surveillance de l'immigration de Kingston (CSIK) est une prison spécialement construite pour détenir des individus sujets à des certificats de sécurité. Le CSIK fut créé en 2006 en réponse à la controverse concernant l'utilisation des établissements correctionnels de l'Ontario pour la détention à long-terme des individus en vertu d'un certificat de sécurité. Bien que le mécanisme des certificats de sécurité ainsi que les processus s'y rattachant ont été l'objet de nombreuses critiques académiques sociolégales, l'espace juridico-politique du CSIK n'a, jusqu'à présent, jamais été décrit ou problématisé en profondeur. Cette étude tente de combler cette lacune, d'une part, en présentant en détail l'historique de cet établissement et, d'autre part, en explorant les interactions au sein du champ canadien d'insécurité qui ont façonné l'émergence du CSIK, l'organisation de son administration ainsi que ses opérations quotidiennes. Puisqu'il existe une pénurie d'information officielle à propos du CSIK, notre étude se base sur de nombreux documents obtenus à l'aide de demandes faites en vertu de laLoi sur l'accès à l'information. Prenant en compte la littérature existante, nous présentons la détention en vertu de certificats de sécurité comme une contre-loi normalisée, rendue possible de manière exceptionnelle, et avançons l'idée selon laquelle celle-ci est conforme au concept juridico-politique du camp. Nous décrivons comment ce camp particulier est né, tout en mettant un accent particulier sur le rôle qu'ont jouées les interactions entre les professionnels et les institutions au sein du champ canadien d'insécurité. Nous présentons également l'accord interdépartemental contractuel entre le Service correctionnel du Canada (SCC) et l'Agence des services frontaliers du Canada (ASFC), c'est-à-dire l'accord à la base de l'administration du CSIK. Nous décrivons cet accord comme étant le résultat de la rencontre de deux pouvoirs, soit l'autorité de détenir infiniment et la capacité de détenir pragmatiquement sous la bannière de la sécurité nationale. Nous considérons les implications de cette rencontre pour le mandat correctionnel du SCC. Le CSIK émerge comme une «exception ancillaire«, c'est-à-dire une tentative institutionnelle de réformer et de normaliser le mécanisme des certificats de sécurité. Nous terminons l'article en argumentant favorablement pour l'abolissement du CSIK.

Fire in the Hole: Empirical Testing of a Pro-Government/Anti-Plaintiff Bias in the Admissibility of Scientific Experts in Criminal and Civil Cases

This article examines the highly debated topic among sociologists, legal scholars and policy makers regarding the differential admissibility of expert evidence in criminal and civil cases. The U.S. standards and principles of the admission of scientific and non-scientific expert testimony has been greatly influenced by the U.S. Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals, Inc. and concurrent cases commonly referred to as the Daubert trilogy. These cases have produced substantial legal commentary and some empirical research examining their effect on case outcomes and judicial behavior. Anecdotal evidence based on experience and case studies report a differential treatment of expert evidence in criminal and civil cases. In criminal cases, legal scholars complain that admissibility standards are applied too leniently favoring the admission of the prosecution’s experts over criminal defendants, suggesting a pro-government bias. Conversely, under the same admissibility standards, in civil cases, legal scholars complain that the standards are applied more strictly than in criminal cases and that expert evidence proffered by plaintiffs are scrutinized more rigorously than those proffered by civil defendants, suggesting an anti-plaintiff bias. Despite the perceived consensus among legal and socio-legal scholars about this bias, there has been little empirical research testing this phenomenon. The current study quantifies and systematically records the frequencies of the admissibility of a single form of expert evidence, cause and origin of fire experts, as proffered by prosecutors, criminal defendants, plaintiffs and civil defendants in criminal and civil cases. By holding the type of expert evidence constant between the types of cases and legal actors, we can empirically test the proposed pro-government/anti-plaintiff bias that has been conventionally accepted in the socio-legal literature based largely on anecdotal evidence.

Adolescents' Attitudes to Law and Law-Related Issues; The Case of Hong Kong Students

Psychologists have often been interested in the way individuals respond to and interact with the law. Socio-legal scholars have had a similar interest. This led to a stream of research that sought to identify the ‘legal consciousnesses' of individuals as they experience legal ideas and situations. The study reported here sought to identify the ‘legal consciousnesses' of a sample of Hong Kong adolescents in a unique socio-political context. The findings suggested that these young people possessed a ‘bounded’ legal consciousness indicated by their consistent support for obeying the law even when human rights were at stake. Nevertheless, they could envisage the possibility of questioning the law. Developmental and gender differences were identified in these attitudes. [1]

Narrativising contract law

Socio-legal scholarship in contract maintains that the classical law is ineffective in regulating commercial agreements, and that the law should be more attentive to the role played by relational norms of cooperation and implicit understandings in business dealings. This paper explores the extent to which the parties' own narratives about their business relationship, as presented to a judge through testimony, can be both a source of information to judges about how business is conducted and a corrective to the classical contract law mindset, which favours the operation of individualist over cooperative norms in the resolution of commercial disputes. The paper examines a body of ‘law and narrative’ scholarship which underlines narrative's power to subvert traditional legal norms. It also considers some of the difficulties with relying on party narratives as evidence of the implicit dimensions of commercial agreements, but concludes that such narratives may have a role to play in the development of a more relationally constituted contract law and are thus worthy of closer scrutiny.

Contracts and Contract Law: Challenging the Distinction Between the ‘Real’ and ‘Paper’ Deal

This article examines the claim that there are two different and often incompatible ‘worlds’ within which contractual relationships can be placed-a real world created by the parties and an artificial world created by contract law and formal contract documents. This distinction, often made by sociolegal scholars, is usually accompanied by the suggestion that legal reasoning might be improved by more attention to the real world of contracting at the expense of the artificial world of documents and classical doctrine. After examining the relationship between trust and contract, the role of legal institutions in supporting agreement-making and the reasons parties might have for formalizing commercial relationships, the article argues that a sharp distinction between the real and paper deal cannot be drawn and that in many commercial agreements these must be understood as integrated phenomena, rather than wholly discrete aspects of contracting behaviour. The article then considers the capacity of contract law to respond to this finding, with particular reference to the law's approach to uncertainty in agreements and the contextual approach to contract interpretation as developed by Lord Hoffmann in Investors Compensation Scheme and subsequent cases.

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.

Home Away from Home: Collaborative Research Networks and Interdisciplinary Socio-Legal Scholarship

Interdisciplinary research has long been suspect within the disciplines. Because the disciplines control recruitment, tenure, and promotion, it is difficult for interdisciplinary scholarship to gain traction in the academic world. Within socio-legal scholarship, the Law and Society Association has been instrumental in fostering interdisciplinary and, more recently, transnational research. The association's latest and certainly one of its most promising interdisciplinary and international initiatives is the creation of Collaborative Research Networks (CRNs). These CRNs, while of relatively recent origin, have already contributed impressively. On the one hand, they have established structures and processes that provide opportunities, training, and rewards for interdisciplinary scholars. On the other hand, the CRNs have demonstrated the multiplicity of ways in which socio-legal scholarship can bring all manner of research tools to bear on topics that cross disciplinary and national boundaries—incorporating the global and the local as well as the mediating forces and institutions betwixt and between.

The Cultural (Re)Turn in Japanese Law Studies

Commemorating Professor Tony Angelo's tireless efforts and multiple achievements in translating legal rules, principles and cultures from abroad, including many from Japan, this article focuses on an ongoing project to translate selected works of a leading Japanese legal sociologist, Professor Takao Tanase. Part 2 locates Tanase's critical "hermeneutical" understanding of law and society, or of facts and norms, within various paradigms in the English-language world of "Japanese Law". These include a first wave of culturalist approaches; a model instead emphasising the institutional barriers to invoking the law in Japan; another model emphasising "elite management"; and a very different "economic analysis" of Japanese law-related behaviour. Tanase's work instead joins an emerging "hybrid paradigm" that takes more seriously new understandings and measures of culture `project. As Tony taught us only too well, interpreting foreign legalese can be hard enough. But the most difficult task often lies in conveying the way it is embedded in a broader socio-legal praxis and discourse abroad. These challenges will not go away even in our globalised world, thereby securing the future for comparative socio-legal scholarship.

Knowing the Social in Urban Planning Law Decision-Making

This article reflects an interest in how policy and law are used to develop models for more just and equitable city planning. Making use of a law in action rather than a law in books approach, the article draws on socio-legal scholarship and urban studies to consider knowledge formats for planning law decision-makers (PLDM) in relation to social and cultural impacts for proposals for significant land use and development. Of interest is how PLDM know about social and cultural impacts and what role their own social capital plays in regard to this knowledge. The place for social impact assessment (SIA), as a legal actor and knowledge instrument in the decision-making process is considered. Some models are suggested for how social facts, which carry a troubled history in common law jurisdictions, could be presented as evidence by the planning expert witness in courts and tribunals.

Feminism and the Flat Law Theory

This article examines two modalities of law, depicted spatially as the vertical and the horizontal. The intellectual background for seeing law in vertical and horizontal dimensions is to be found in much socio-legal scholarship. These approaches have challenged the modernist, legal positivist and essentially vertical view of law as a system of imperatives emanating from a hierarchically superior source such as a sovereign. In keeping with the socio-legal critical tradition, but approaching it from the perspective of legal philosophy, my aim is to address three matters. First, why is vertical law problematic for feminists? Second, what are the theoretical characteristics of law in its horizontal register? Third, how is an appreciation of this ‘flat’ law useful for feminist legal theory and practice? In particular, I consider the ways in which feminist legal theory operating in the horizontal dimension can transgress, without transcending, the vertically determined perimeters of the nation state.

The architecture of risk management

Power's book examines how organizations are designed through risk-based science, law and managerial techniques. As organizations have come to think of, reform and govern themselves through the vague but powerful notion of risk, both the fortunes of the managers who conceive of these designs and the behaviour of the organizations themselves have been affected. Power develops four themes as he analyses the consequences of these moves towards risk management as governance. First, he notes the tensions that have emerged as risk management systems take in information about uncertainty in the operational environment and process it into risk, while simultaneously producing yet more uncertainty. Second, he offers an account of developments in the system of professions as the abstractions of mathematical risk analysts have lost ground to managerial approaches to the processing and uses of risk. Third, he applies neo-liberal notions of the individual to organizational behaviour in an analysis of the conflict between risk-embracing profit motives and risk-averse precautionary instincts. Fourth, he argues that the uptake of risk management techniques and discourses in organizations has fundamentally changed the way they view themselves and operate in the world. As better risk management through internal self-control has become the obvious solution to every problem, enterprise values and trust have imploded. We close our review with a critique of this implosion thesis, suggesting directions for future research for socio-legal, governance and organizational behaviour scholars.

Exploring the dynamics of compliance with community penalties

In this paper, we examine how compliance with community penalties has been theorized hitherto and seek to develop a new dynamic model of compliance with community penalties. This new model is developed by exploring some of the interfaces between existing criminological and socio-legal work on compliance. The first part of the paper examines the possible definitions and dimensions of compliance with community supervision. Secondly, we examine existing work on explanations of compliance with community penalties, supplementing this by drawing on recent socio-legal scholarship on private individuals' compliance with tax regimes. In the third part of the paper, we propose a dynamic model of compliance, based on the integration of these two related analyses. Finally, we consider some of the implications of our model for policy and practice concerning community penalties, suggesting the need to move beyond approaches which, we argue, suffer from compliance myopia; that is, a short-sighted and narrowly focused view of the issues.

Transforming Symbolic Law into Organizational Action: Hate Crime Policy and Law Enforcement Practice

For decades sociologists, criminologists, political scientists and socio-legal scholars alike have focused on the symbolic and instrumental dimensions of law in examinations of the effects of social reform and policy implementation. Following in this tradition, we focus on the relationship between hate crime policy and hate crime reporting to identify the conditions under which a symbolic law is accompanied by instrumental effects at the initial phase of the law enforcement process —the official recording of a hate crime event. Using data on California police and sheriff's agencies we estimate hierarchical Poisson models to determine how agency-level enforcement efforts, chiefly the creation of a formal policy on hate crime, affect official hate crime reporting. We also examine how community and agency attributes influence the effects of policy on the reporting of hate crime. We find that agency characteristics, in this case measures of the integration of the local agency within the community, shape the degree to which agency policies affect the official reporting of hate crime. Our findings reveal that while symbolic law is not intrinsically incapable of producing changes in enforcement patterns, such effects are contingent upon agency and community processes. Thus, we conclude by conceptualizing the varied enforcement contexts within which a body of symbolic law is rendered instrumental.

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.

Socio-Legal Studies in Liverpool Law Schools Introduction

This special edition of the Liverpool Law Review emanated from the ‘socio-legal gathering’ seminar series which is a collaborative project organised and attended primarily by colleagues from both Liverpool John Moores University and Liverpool University. Furthermore, the idea to produce a special edition which aims to both examine and celebrate socio-legal studies in Liverpool Law Schools was influenced by the nomination of Liverpool as the 2008 European Capital of Culture. The initiative to organise a socio-legal seminar series was conceived during the 2006 SLSA annual conference in Stirling during a conversation about the breadth and range of socio-legal scholarship being conducted in the UK. The organisers thought it would be an interesting and useful endeavour to run a seminar series which aimed to identify the scope of socio-legal research that was being conducted by academics based in Liverpool Law Schools in order to examine whether there are any significant trends and to try and grasp what socio-legal studies means to different

Gay Male Resistance in ‘Beat’ Spaces in Australia: A Study of Outlaw Desire

This article engages in a discussion of a particular aspect of homosexuality that, due its taboo, sub-cultural nature, is under-theorised in socio-legal and criminological discourse both in Australia and abroad - the phenomenon of men meeting in 'beat' spaces to pursue homosexual intimate encounters. Such forays have long been discouraged as a nuisance and criminalised using common law public laws governing offensive behaviour.1 Indeed, police antagonism to this sexual sub-culture is well documented, and in the past, agent provocateur policing procedures were commonly used to entrap men at beats.3 Despite that fact that hundreds of encounters take place every day in Australia, very few studies have sought to examine the nature of homosexual intimate encounters in spaces. Those studies that do exist are either dated,4 or historically focused.5 Swivel's article is the only recent Australian text to demystify 'beats' and situate their relevance to criminological discourse.6 Swivel states: '[tjhe humanisation of the beat might be assisted through future research which locates the beat within other discourses'.7 This research rises to this challenge by locating 'beat' sexuality within a Foucauldian discourse of resistance, aided by references to the writings of another French philosopher, Michel De Certeau. It does so by offering an insight into the ways that men in Australia resist police attempts to regulate intimate conduct in the realm of the 'beat'. Since no State or Territory in Australia now oudaws consensual same-sex practices in private, 'beat' spaces is one particular area where homosexual conduct is criminalised in Australia. However, it should be stressed that the crirninalisation of homosexuality is far from limited to those spaces described and known as 'beats' - rather, that 'beats' are spaces commonly implicated in police accusations of sexual misconduct in public. This discussion does not seek to evaluate die morality of homosexual desire in Taeat' spaces, other than to acknowledge that beat sex attracts much legal, social and cultural hostility as 'dirty' sex that is out-of-place,8 repulsive, disgusting and offensive.9 Nor will this paper explore the health issue of HIV transmission or the safety issue of homophobic violence that are associated with beats - as critical as these issues are. Rather, in deference to Foucault's legacy of celebrating human resistance to the governance of sexual conduct, this discussion accepts that beat sex is a fact of life and seeks to document the tactics and strategies that gay men adopt to thwart police attempts to regulate their desire in the realm. 10 In order to document these tactics I defer to Foucault's notion of countermemory - a competing narrative of the past composed of memories that exceed the official history. 11 The interviews with gay men that underpin this research allowed me to access their resistant countermemories. Following, I wish to offer an ethnographic snap-shot of male-centered sex in places in which the participants own narratives are paramount in documenting sexual practices.12 Such an approach will highlight the personal and emotional nature of lived experiences that male-centered sex-in-public places so richly contain. 13 Human resistance to regulatory practices has emerged as an issue that criminological and socio-legal scholarship cannot continue to shy away from. If criminology is to remain relevant in current times, it must engage with and contribute to 'knowledge of resistance.'14 Walters argues: '[s]uch criminological work is crucial during an ascendancy of an intolerant, punitive and moral authoritarian state'.15 However, such knowledge of resistance is 'often marginalised and seen as deviant voices' in the mainstream.16 This article responds to the challenge posed by Walters by attending to male sex in beat spaces, not as a problem of deviance, but as an opportunity to elucidate an appreciation of the complex ways that same-sex attracted men resist police attempts to regulate their desire. …

Law as a Means to an End: Threat to the Rule of Law. By Brian Z. Tamanaha. New York: Cambridge Univ. Press, 2006. Pp. xii+254. $80.00 cloth; $31.99 paper.

Law a Means to End: Threat to the Rule of Law. By Brian Z. Tamanaha. New York: Cambridge Univ. Press, 2006. Pp. xii + 254. $80.00 cloth; $31.99 paper. Tamanaha's previous books have shown his ability to present vivid arguments on large themes of great contemporary interest. He engages provocatively key debates; typically develops his arguments in clear, direct prose; and usually reaches strong conclusions that challenge the reader. His newest book shows all these characteristics and is also written much passion, because its theme is nothing less than the health of, or-as he sees it-the sickness of the U.S. legal system a whole. He argues that a pernicious instrumentalism has taken over virtually all institutions of American law-especially the legislative and administrative processes, the Supreme Court, and much of lawyers' practice, legal education, jurisprudence, and sociolegal scholarship. If was always seen instrumentally to some extent, what Tamanaha thinks is new (roughly since the beginning of the twentieth century) is that instrumental views have been established in a specific historical contrast (p. 35) earlier noninstrumental views, now entirely displaced. Law tends now to be seen only a mere technical means to achieve any chosen ends. Noninstrumentalism viewed having an inviolable, built-in principled integrity (p. 219); its special identity, making it more than just a tool, was as a matter of principle, reason, immemorial customs of the community, a body of specialized knowledge and a science (p. 58). On this noninstrumental adjusts to social change but is not a tool of social engineering; judges should apply with no preconceived controlling end in view, and legislators must seek to declare the immanent norms of the community or natural principles (p. 7). In Tamanaha's argument, instrumental views of cannot now be displaced and would not be dangerous but for the deterioration of belief in what he variously calls the common good, the public good, general welfare, or public purpose. Without this, nothing holds legal instrumentalism in check. With rampant instrumental manipulation of the law (p. 250), lawyers have little concern beyond furthering their clients' interests (and so their own) by any means short of illegality; the selection of judges depends on whether their personal preferences will lead them to adjudicate consistently the interests of those who decide their appointment; legislators tailor their votes on legislation to the demands of those who can influence their re-election; students are taught that skill in arguing legally on either side of a case is more important than working out how it should be resolved. Tamanaha's discussion of professional legal practice (especially corporate and tax), and its often brutish conditions (p. …

The Rise of Criminal Background Screening in Rental Housing

This article investigates the recent rise of criminal background screening in rental housing as a case study of the diffusion of actuarial social control. That case study suggests that actuarial techniques have spread more widely through the crime prevention field than sociolegal scholars have recognized, replacing disciplinary efforts to diagnose and alter the behavior of individuals with actuarial efforts to identify and isolate high-risk groups. This actuarial strategy has proliferated not only because new discourses encouraged it but also because new institutional structures facilitated it. That conclusion illustrates the importance of structural (rather than cultural) factors in shaping society's response to crime—particularly the growing availability of the collective institutional capacity that actuarial social control requires.

Consolidating Peace: Rule of Law Institutions and Local Justice Practices in Sierra Leone

The strengthening of rule of law institutions is increasingly recognised as a key component to consolidating peace in post-conflict situations. Ensuring fairness under the law (and the appearance of fairness) whilst expanding access to justice in rural areas has become a chief plank in peacebuilding efforts in Sierra Leone following a decade-long civil conflict born of corrupt mismanagement in this failed post-colonial state. However, in order for justice institutions to be meaningful, local practices must be engaged. Despite discourse suggesting that justice is ‘universal’, socio-legal scholars have demonstrated that justice and its performance are cultural artefacts. Any robust peace in Sierra Leone must twin increasingly globalised rule of law institutions with local meanings and practices of justice. At the same time, local justice practices must be articulated with human rights. Moreover, the post-conflict period opens a unique space to expand Sierra Leonean local justice practices to stay the hand of vengeance following an inter-communal war where regular people became perpetrators, and almost everyone became a victim. Drawing on fieldwork conducted in Sierra Leone, this article will examine the development of rule of law institutions in Sierra Leonean peacebuilding and attempt to suggest how these institutions might coexist with local, ‘traditional’ justice practices. Moreover, the article also offers a critique of rule of law programming, drawing analogies to the criticisms mounted against the Law and Development Movement.