Special Issue Law and Society Reconsidered: Volume 41

Since its emergence as a field of study, law and society scholarship has grown to encompass an array of disciplines, perspectives, methods, and political orientations. A consequence of this disciplinary hypostatization has been to produce a scholarly goulash which, while at times nourishing, now faces the dual dangers of institutional fracture and intellectual incoherence. The aim of this essay is to map a way to embrace the eclecticism that characterizes the field and yet avoid the dangers of dilettantism and to cultivate the interdisciplinarity its founders envisioned without sacrificing a sense of shared purpose or abandoning the possibility of collectively producing a better understanding of law.

This chapter derives from the movieDr. Strangelovecues for exploring questions about the quest for methodological insularity and purity in socio-legal research. Steven Lukes’ classic three-dimensional model of power provides an intellectual focus for the core exploration of relations between epistemology and data generation, the two key elements that we usually identify with methodology. The discussion culminates in an affirmative argument for the value of approaching methodology as jazz, the creative popular music that grounds reliable, humane sense in Kubrick's movie and provides an apt analogy for much of the leading scholarship in the LSA tradition.

In this essay I discuss how law and legal precedent present a false or eschewed construction of the past. The Chicago Haymarket Riot in 1886 and the subsequent trial of eight rioters in Spies vs. People provide a dramatic illustration of the lasting consequences of privileging some historical narratives and silencing others. Occurring as it did at the dawn of the “Red Scare,” the miscarriage of justice in Spies vs. People acts as a landmark precedent in a tradition within the United States of extra-judicial lawlessness that stretches from this case through 100 years of labor turmoil, two World Wars, McCarthyism, the Cold War, and up to the current War on Terror. Moreover, these instances of lawlessness and extra-judicial activity, while not written into legal records, nonetheless resurface again and again to form patterns of behavior that amount to what I call precedents of injustice, and which I argue are as integral to law as any formal legal precedents. By way of conclusion I urge all sociolegal scholars to remain attentive to the wider historical contexts which over time are repeatedly silenced through the institutionalized legal processes of denial and forgetfulness.

Handler's genealogy of postmodernism recounted in his address recognizes its origin in aesthetic disciplines and its somewhat viral transcription into social jurisprudence: “the postmodern concept of subversion developed first in language and literary theory, art, and architecture and then spread into politics and law” (1992a, p. 698). Although Handler's rejection of deconstruction stems from what he sees to be its political quiescence, its association with aesthetic critiques of modernism haunts his claims as one source of its essential conservatism. Aesthetic values, he implies, remain distant or distinct from pressing issues of political and social inequality.

In response to the divides identified by some UK writers between critical legal scholarship, left political agendas, and empirical, policy-driven, socio-legal research, and indications of similar divides in the US, this essay seeks to demonstrate the possibilities for work that negotiates between progressive political commitments, social and political theory, policy concerns, and social scientific approaches to the interface between law and society. It does so by reference to three case studies of critical, feminist socio-legal scholarship, which address policy issues in the areas of family law, the legal profession, and access to justice.

This essay will consider three theories developed by international law scholars to analyze the international legal terrain and the strengths of each as well as issues it fails to address sufficiently in the dimensions of power, meaning, and social relationships: bottom-up lawmaking; transnational legal processes; and global legal pluralism. The idea of bottom-up lawmaking, already discussed, has the strength of beginning from the everyday practices by which problems are solved that lead eventually to the creation of a body of law. However, the phrase bottom-up suggests that this is a grassroots movement, while it is typically cosmopolitan elites who generate the informal rules that become established over time. Explicit attention to the power relationships underlying this process would help to clarify what “bottom-up” means. As Judith Resnick points out, the terms “soft law” and “hard law” are themselves problematic, incorporating gender ideologies and suggesting that some international laws are enforced firmly, which is rarely the case in practice (personal communication).

During the immediate aftermath of Hurricane Katrina and the onslaught of flooding, the single most important role for government and the public sphere was deemed to be law and order, at times to the exclusion of other public responsibilities. Law and order were articulated almost exclusively as a policing matter with the emphasis on order rather than law. Policing took different public and private forms in the early days of the flooding. This chapter examines the nature of that policing and the unquestioned presence of private police as a key element of the law and order response to Katrina in New Orleans.

This chapter documents how the shift in psychiatric representation from the “morally insane” perpetrator of the 19th century to the modern psychopath or person with anti-social personality disorder involves a recasting of the offender from someone afflicted with an illness whose criminal misconduct is merely a symptom of their disorder to someone whose criminal misconduct is perceived as an expression of their true character. Drawing upon recent case law, the article then shows how prosecutors deploy this modern psychiatric reconfiguring during the penalty phase of the US capital trial to persuade jurors to decide in favor of death over life without parole. Central to the building of this narrative is the reframing of the offenders’ silences as well as what are taken as their unconvincing attempts to show remorse as evidence of a pathology whose primary manifestation is the incapacity to feel or experience moral emotions. Applying but also modifying Harold Garfinkel's work on degradation ceremonies, the chapter shows how the pathologizing of the offender's lack of remorse involves a rite of passage in which he or she is symbolically demoted from someone worthy of life in spite of their grievous crime to someone for whom death is the only appropriate penalty.