Law and Society Research Papers (original) (raw)

Based on interviews with bureaucrats and judges in several Swiss cantons, this article analyzes how bureaucrats decide to order immigration detention and how the judicial review shapes their decisions. The authors argue that discretionary... more

Based on interviews with bureaucrats and judges in several Swiss cantons, this article analyzes how bureaucrats decide to order immigration detention and how the judicial review shapes their decisions. The authors argue that discretionary decision-making regarding immigration detention is structured by the web of relationships in which decision-makers are embedded and affected by the practices of other street-level actors. The varying cantonal configurations result in heterogenous bureaucratic practices that affect the profiles and numbers of persons being detained. In particular, differences in judges' interpretation of legal principles, as well as in their expectations, strongly affect bureaucratic decisions.

"Andreas Philippopoulos-Mihalopoulos opens the book with his latest contribution to his comprehensive project of re-theorising spatial justice with a piece titled ‘Spatial Justice in a World of Violence’. Through a close reading of the... more

"Andreas Philippopoulos-Mihalopoulos opens the book with his latest contribution to his comprehensive project of re-theorising spatial justice with a piece titled ‘Spatial Justice in a World of Violence’. Through a close reading
of the photographic series Fortunes of War, Life Day by artist Eric Lesdema,
Philippopoulos-Mihalopoulos is interested in how these images reveal peripheral
spaces at the edge of violence which impose an ethic of spatial responsibility on the
viewer in the act of turning away and looking elsewhere. While no acts of explicit
violence are shown in the images, we are left with no doubt that violence is ubiquitous
along the spatio-temporal continuum. This continuum of violence between
bodies raises questions of complicity and responsibility. Do we submit to a state
of affairs in which space is saturated with the everyday and immobilised violence
of the ‘engineered atmosphere’ – or is it also possible for bodies to withdraw from
the atmosphere, through ruptures and folds within the continuum? Such a notion
raises the ethical possibility of the ‘emergence of spatial justice’." Chris Butler and Edward Mussawir (eds)

Storytelling pervades almost every aspect of the law. Many narrativistic legal elements, however, have in fact been little more than historically transitory. Given the precarious status of narrative at law, I argue we should focus instead... more

Storytelling pervades almost every aspect of the law. Many narrativistic legal elements, however, have in fact been little more than historically transitory. Given the precarious status of narrative at law, I argue we should focus instead on one of the most historically consistent acts of legal storytelling: the judicial opinion. Here I examine in particular the invocation of precedent in legal opinions, what I call “judicial emplotment,” as an almost archetypal act of formalized storytelling. As I go on to argue, the courts justify legal outcomes by invoking precedent, thereby placing decisions within a specific and heavily formalized legal-narrative structure.

There are many histories of the police as a law-enforcement institution, but no genealogy of the police as a form of power. This book provides a genealogy of the modern police by tracing the evolution of ‘police science’ and of police... more

There are many histories of the police as a law-enforcement institution, but no genealogy of the police as a form of power. This book provides a genealogy of the modern police by tracing the evolution of ‘police science’ and of police institutions in Europe, from the ancien régime to the early 19th century. Drawing on the theoretical path outlined by Michel Foucault at the crossroads between historical sociology, critical legal theory and critical criminology, it shows how the development of police power was an integral part of the birth of the modern state’s governmental rationalities and how police institutions were conceived as political technologies for the government and social disciplining of populations. Understanding modern police not as an institution at the service of the judiciary and the law, but as a complex political technology for governing the economic and social processes typical of modern capitalist societies, this book shows how the police have played an active role in actually shaping order, rather than merely preserving it.

While still fragmented, we are witnessing the emergence of a global commercial legal order independent of any one national legal system. This process is unfolding both on the macro-level of state actors as well as that of private... more

While still fragmented, we are witnessing the emergence of a global commercial legal order independent of any one national legal system. This process is unfolding both on the macro-level of state actors as well as that of private individuals and organizations. On the macro-level, the sources of this legal order are complex international agreements; on the micro-level, private contracts employing commercial customary practices and arbitration are driving this process forward. Yet there is no comparable evolution occurring (in any substantial sense) in non-commercial areas of law such as criminal, tort, or family law. There is an overall asymmetry in the development of transnational legal order. But why is this happening? This paper argues that the emergence of a global commercial legal order may be partially attributed to the unique structural nature of trade. The paper gives a structuralist account, positing that unlike legal order of a non-commercial nature, commercial legal order has built-in mechanisms that make it particularly suited to evolve in a transnational context—i.e. to evolve and sustain itself in the absence of a central legislative or coercive authority. The paper identifies and explores these built-in mechanisms. The paper concludes that because commercial legal order is uniquely predisposed to emerge without the State, we should expect this asymmetry to not only continue, but likely grow even more extreme.

It is sometimes argued that the non-therapeutic, non-consensual alteration of children’s genitals should be discussed in two separate ethical discourses: one for girls (in which such alterations should be termed ‘female genital... more

It is sometimes argued that the non-therapeutic, non-consensual alteration of children’s genitals should be discussed in two separate ethical discourses: one for girls (in which such alterations should be termed ‘female genital mutilation’ or FGM), and one for boys (in which such alterations should be termed ‘male circumcision’). In this article, I call into question the moral and empirical basis for such a distinction, and argue that all children—whether female, male, or intersex—should be free from having parts of their genitals removed unless there is a pressing medical indication.

Some of Law and Economics’ basic claims have come to be criticized as a result of empirical findings that question their viability. Particularly, the premise that agents consistently act rationally and with their self-interest in mind... more

Some of Law and Economics’ basic claims have come to be criticized as a result of empirical findings that question their viability. Particularly, the premise that agents consistently act rationally and with their self-interest in mind seems problematic. What the consequences of the criticism mean for Law and Economics’ tenability depends largely on the questions whether (1) some elements are unassailable to the alternative’s objections and (2) the alternative is a systematic whole. It is argued that Law and Economics may be salvaged, if it is minimized and its ambitions are tempered. This means focusing on the stable, a priori, elements inherent to it.

The major aim of this article is to examine how migrations affect private governance, taking as a case study the Prud'homie de pêche, a private order that has governed the fishery of Marseille for the past six centuries. Scholarship... more

The major aim of this article is to examine how migrations affect private governance, taking as a case study the Prud'homie de pêche, a private order that has governed the fishery of Marseille for the past six centuries. Scholarship generally argues that social norms guarantee the efficiency of private orders and their ability to resist the arrival of newcomers. My data suggests that the Prud'homie has failed to accommodate social changes prompted by migratory flows, not despite but because of its social norms. This paper suggests that social norms are not only powerful tools of governance for private orders, but also forces of inertia that can prevent these orders from accommodating social changes.

The goal of this paper is to explore the perception of Kosovo's citizens of the severity of tax evasion relative to other crimes and abuses. Perception of tax evasion may somewhat clarify the degree of rebelliousness with the tax laws.... more

The goal of this paper is to explore the perception of Kosovo's citizens of the severity of tax evasion relative to other crimes and abuses. Perception of tax evasion may somewhat clarify the degree of rebelliousness with the tax laws. Using data from a self-administered survey and a personnel structured interview, the results of mean and comparative analysis will be examined to show where the tax evasion is ranked in Kosovo in the list of fifty listed crimes. Studies, conducted about the perceptions of tax evasion as a crime, have suggested that the tax non-compliance environment has been created from the perception of the taxpayers towards tax evasion as a non-serious crime. Consequently, the degree of non-compliance with the tax laws could be explained somewhat by the perception towards the tax evasion. And, it is obvious that the public's perception of the severity of a crime has important implications for society. [1] However, those studies are inconclusive in explaining the variability of the perceptions towards tax evasion as a crime. Despite that fact that these researches conducted on this area in US, Australia, and Malaysia are a few, a study about the perception of tax evasion in Kosovo does not exist. Evidence on tax evasion perception found in the developing countries may not be generalized to the context of Kosovo because of the differences in the environmental factors such as economy, business, culture, and regulations. Consequently, differences in the environmental factors are expected to cause differences in the perception. The results of this study should be useful to business and government representatives in Kosovo and elsewhere in the Balkans or wider.

Gewöhnlich versteht man unter Kriminalität die Summe der strafrechtlich missbilligten Handlungen. Massstab von Kriminalität bildet demzufolge das Strafrecht bzw. der darin enthaltene Sanktionsanspruch. Ein solches Strafrecht existiert... more

Gewöhnlich versteht man unter Kriminalität die Summe der strafrechtlich missbilligten Handlungen. Massstab von Kriminalität bildet demzufolge das Strafrecht bzw. der darin enthaltene Sanktionsanspruch. Ein solches Strafrecht existiert nicht für jede historische Epoche. Um diese gesellschaftlichen Zusammenhänge im Auge zu behalten und eine Engführung der Kriminalität auf das schriftlich fixierte Strafrecht zu vermeiden, wird in der historischen Kriminalitätsforschung ein Perspektivenwechsel vorgeschlagen: Anstatt von den rechtlichen Normen wird von den soziokulturellen Normierungsprozessen ausgegangen. Diese Normierungsdynamik erzeugt verschiedenste Formen von Devianz, die nur teilweise als Delinquenz auftreten. Über die Verletzung einer rechtlichen Norm hinaus geraten auch die Fragen der (schicht-, geschlechts- und generationenspezifischen) Sankionierungsintensität, der Fahndungstechniken und der Rechtsprechung durch die Gerichte bzw. der Strafzumessung ins Blickfeld.

This article addresses the implications of a new resistance to hate crime legislation that has yet to be addressed in the mainstream legal debate in Canada or the United States. It comes mainly from groups in the US that represent lgbtq... more

This article addresses the implications of a new resistance to hate crime legislation that has yet to be addressed in the mainstream legal debate in Canada or the United States. It comes mainly from groups in the US that represent lgbtq communities who are poor and/or of color. These communities are particularly vulnerable to victimization by hate crime yet the groups have repeatedly opposed the inclusion of sexual orientation and gender identity/expression in hate crime legislation. This article addresses the underlying rationale of the new resistance and its implications for the mainstream debate. It begins by undertaking a comparative analysis of hate crime legislation in Canada and the US. It then considers the mainstream legal debate in both countries as well as some statistical data on hate crime. The third section turns to the new resistance as well as emerging data on the connection between victimization and the criminal legal system itself. It then draws on the legal theory of Walter Benjamin to reveal limits in the way that the mainstream legal debate conceptualizes criminalization. The final section of the article considers the implications of Benjamin’s concept of law for both the mainstream debate and the new resistance.

ABSTRACT The study provides an overview of the worldwide best practices for rape prevention and for assisting women victims of rape. It reviews the international literature and offers selected examples of promising practices. It addresses... more

ABSTRACT The study provides an overview of the worldwide best practices for rape prevention and for assisting women victims of rape. It reviews the international literature and offers selected examples of promising practices. It addresses the comprehensive range of policies in the fields of gender equality; law and justice; economy, development and social inclusion; culture, education and media; and health. It presents a wide-ranging set of examples of best practice. It concludes with a series of recommendations, based on the social scientific evidence presented in the study. The report is available online at http://www.europarl.europa.eu/committees/en/femm/studies.html

Transitional justice is concerned with the legal and social processes established to deal with the legacy of violence in post-authoritarian and post-conflict contexts. The interview — in different guises, contexts and settings — is at the... more

Transitional justice is concerned with the legal and social processes established to deal with the legacy of violence in post-authoritarian and post-conflict contexts. The interview — in different guises, contexts and settings — is at the heart of most transitional justice processes. Prosecutorial mechanisms, truth recovery commissions, assessments for reparations, applications for amnesty — all of these and more are fueled by the art of one human being interviewing another and then presenting or “re-presenting” the material recorded, to make it “fit” with the broader transitional goals of a particular institution. Most transitional justice institutions are, in the final analysis, “creatures of law.” They are typically established by statute, their work is molded and shaped by lawyers, and their outcomes are benchmarked against what is or is not acceptable under domestic and international law. In such a context, it is little wonder that some transitional scholars have expressed conc...

This is chapter 20 of M Crouch and T Lindsey (ed), Law, Society and Transition in Myanmar (Oxford, Hart Publishing, 2014). In this chapter I report on the views of participants at a remarkable workshop at NUS in 2013. On the basis of this... more

This is chapter 20 of M Crouch and T Lindsey (ed), Law, Society and Transition in Myanmar (Oxford, Hart Publishing, 2014). In this chapter I report on the views of participants at a remarkable workshop at NUS in 2013. On the basis of this report I argue for a changed approach to law and development. after 50 years and faced with a new situation in Myanmar we can adopt a more contextual and more informed approach to law and development.

This article contrasts two English solicitors' styles of file work and aims to spell out some of the styles' respective practical and ethical implications. What I call ‘elaborate style’ relates to the file as the primary means of... more

This article contrasts two English solicitors' styles of file work and aims to spell out some of the styles' respective practical and ethical implications. What I call ‘elaborate style’ relates to the file as the primary means of casework, while the ‘minimalist style’ relates to the file in terms of a compulsory exercise. The contrasts in style are further explored by attempting a set of explanations for them. The paper seeks explanation by relating the styles to the respective cases filed, to gender differences in the legal profession, and to the professional habitus of either solicitor. In conclusion, the inquiry suggests an explanation involving the legal discourse served. There are good reasons for either style under certain pre-trial and trial procedures. To stick habitually to one style while moving towards another procedure may cause unwanted consequences.

This paper analyzes the laws and policies employed by the Puerto Rican government to address the economic and financial crisis that has been affecting Puerto Rico since 2005. This analysis is built upon the concept of the internal state... more

This paper analyzes the laws and policies employed by the Puerto Rican government to address the economic and financial crisis that has been affecting Puerto Rico since 2005. This analysis is built upon the concept of the internal state of exception; a concept that aims to provide a better understanding of the correlation between neoliberalism, colonialism, economy, and law. This paper proposes: 1) a depiction of the state of exception and its uses as an economic and financial crisis management dispositive; 2) an exposition of the Puerto Rican government's uses of the internal state of exception as a dispositive to tackle the eco nomic and financial crisis between 2005 and 2016; and 3) an analysis of the uses of the inter nal state of exception by the Puerto Rican government in 2017. Thus, this paper reinterprets the uses of the state of exception as a strategy to manage economic and fiscal crises from a colonial and global south experience and proposes a new understanding of this legal and political paradigm.

It is a legal sample of case file as a syllabus content of L.L.B. Second year from Tribhuvan University Nepal. It comprises all the case files from F.I.R. to the police station along with all the legal papers prepared by police and... more

It is a legal sample of case file as a syllabus content of L.L.B. Second year from Tribhuvan University Nepal. It comprises all the case files from F.I.R. to the police station along with all the legal papers prepared by police and documents submitted to court for jurisdiction. All the procedure done by court in presence of justice, lawyer, witness, suspectee all are taken under consideration and final judgement is then ordered by Judge. These all things are included in this sample case file called MOOT COURT.

Эта книга – очередное издание известного труда историка советской и пост-советской правовой системы, профессора университета Торонто Питера Соломона. Впервые на русском языке эта работа была опубликована в 1998 году, на английском книга... more

Эта книга – очередное издание известного труда историка советской и пост-советской правовой системы, профессора университета Торонто Питера Соломона. Впервые на русском языке эта работа была опубликована в 1998 году, на английском книга вышла в 1996. В середине 1990-х годов исследование Соломона внесло вклад в дискуссию о советском правосудии сталинского периода, участниками которой были Габор Риттершпорн, Йорам Горлицкий, Олег Хлевнюк, Харольд Берман, Юджин Каменка и другие. С тех пор дискуссия на Западе значительно продвинулась, однако далеко не все исследования, посвященные этой проблеме, известны в России. Между тем, в последние годы активно развиваются эмпирические социо-правовые исследования, которые нуждаются в теоретико-
методологической базе. При общем дефиците русскоязычной научной литературы по практике правоприменения, истории и социологии права хотелось бы, чтобы труд Питера Соломона не остался незамеченным.

This thesis examines child custody contestations in order to understand how parental rights and responsibilities are constructed and contested in the legal sphere. Based on the analysis of thirty four court files concluded in Istanbul,... more

This thesis examines child custody contestations in order to understand how parental rights and responsibilities are constructed and contested in the legal sphere. Based on the analysis of thirty four court files concluded in Istanbul, Turkey between 1996 and 2002, I discuss the ways in which women and men are entitled with rights and responsibilities with regards to their children in custody trials. My main finding is that gendered inequalities are sustained and reproduced within the legal institution. Women are given the right and duty of their young children’s care through the motherly care and affection trope and their sexual morality is supervised in custody contestations. Fathers, by contrast, are entitled to the childcare services of their kin and represented as providers of class habitus and education for their children.
While the legal status of Turkish women has received substantial interest both within and outside academia, the hegemonic view of the Turkish modernist nationalization project has long dominated the discourse around the subject, limiting speakers to the celebration of the “emancipation” of Turkish women. Moreover, most of the reflections are limited to the articles of the Civil Code and social-scientific studies of practiced law remain rare. This thesis demonstrates that the word of the law is neither a sufficient nor a central variable in understanding how inequalities are reproduced in the legal universe of child custody. This finding is even more significant after the 2001 Civil Code Reform that recently rewritten the Turkish family law in a gender-neutral language with the premise that such move will result in furthering gender equality in the legal sphere.

The aim of this article is to explore the peculiarity of Italian policies on immigration detention and their evolution over time. This will be done by highlighting the main factors that might explain the apparent political disinvestment... more

The aim of this article is to explore the peculiarity of Italian policies on immigration detention and their evolution over time. This will be done by highlighting the main factors that might explain the apparent political disinvestment in immigration detention in Italy, in particular in the years between 2013 and 2015, and account for the turnaround in approach announced and then implemented by the two Interior Ministers in charge between 2017 and 2019. The article uses the Italian case as an opportunity to explore the functions that are assigned to immigration detention in destination countries. In particular, it considers whether or not it can be argued that immigration detention in Italy has been "reinvented" (meaning that its functions have somewhat changed) as a consequence of the so-called "refugee crisis" and in light of Italy's specific position in the contemporary geopolitics of the EU's border control regime.

Drawing on textual and ethnographic research conducted over the last five years, this article analyses an important genre of judicial practice in South and Southeast Asia that has been almost entirely ignored by socio-legal scholars:... more

Drawing on textual and ethnographic research conducted over the last five years, this article analyses an important genre of judicial practice in South and Southeast Asia that has been almost entirely ignored by socio-legal scholars: Buddhist systems of judging. Using the judicial system of one monastic group in contemporary Sri Lanka as a case study, it argues that Buddhist judging requires more than just the internalisation of moral principles, as is often assumed. According to Buddhist (monastic) principles of judging, legal procedures—similar to those used in state-legal settings—are equally essential. These procedures govern everything from making legal complaints, to the structuring of trials, to determining jurisdiction and many other topics. By examining Buddhist judicial systems, this article not only casts new light on the pluri-legal landscape of Asia, it also offers new reflections on the intersection of religion-based and state-based systems of law in the contemporary world.

This chapter analyses constitutional amendments in the Russian Federation (1993–2014). We show that in the phase of constitution-making a problematic path was adopted when the El'cin administration promoted a basic law advantaging the... more

This chapter analyses constitutional amendments in the Russian Federation (1993–2014). We show that in the phase of constitution-making a problematic path was adopted when the El'cin administration promoted a basic law advantaging the executive. The praxis of constitutional amendment in the Russian Federation is discussed in three dimensions: First, concerning amendments to Art. 65, which regulates the structure of the federal republic; second, concerning changes to the structure or principles of the constitutional system; third, concerning de facto constitutional amendments through ordinary laws. In particular, a combination of amendments of the second and third dimensions substantially centralized the constitutional regime over the past 20 years, moving it toward an authoritarian state order. The Russian praxis of constitutional amendment is here classified as authoritarian constitutionalism.

The United States has long grappled with the question of how to maintain an appropriate combination of religion and politics in the public sphere. The current electoral cycle is no different, as Presidential candidates attempt to... more

The United States has long grappled with the question of how to maintain an appropriate combination of religion and politics in the public sphere. The current electoral cycle is no different, as Presidential candidates attempt to negotiate both the political and religious landscapes. This essay introduces a special forum on rhetoric and religion in contemporary politics and touches on some recent instances of how religious differences have played out in the current political environment. Some of the issues discussed include the separation of church and state, Mitt Romney’s membership in the Church of Jesus Christ of Latter-day Saints (Mormons), Rick Santorum’s conception of the “war on religion,” and the controversy over contraceptives at religious institutions and Rush Limbaugh’s attacks on a Georgetown law student.