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The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …
... The sources of disputes are as important as the disputes themselves. Some sociological work on disputing and dispute processing takes as its starting point the dispute itself and its origins; it seeks to examine the source of disputes in a universe of grievances (Felstiner et al., 1981) and to discover why so many grievances are never articulated as disputes (Bumiller, 1987;Sarat, 1984). Grievances and disputes are accordingly subjective, unstable, complicated, incomplete, and constituted through dispute processing techniques. ...
... They do not exist in fixed form prior to the application of particular dispute processing techniques; they are instead constituted and transformed as they are processed. These propositions are at the heart of the sociological interest in dispute transformation (Felstiner et al., 1981;Mather and Yngvesson, 1981;Yngvesson and Mather, 1983;Sarat and Felstiner, 1986). As Mather and Yngvesson (1981: 776-777) assert, an assumption fundamental to the transformation approach is that a dispute is not a static event which simply "happens," but that the structure of disputes, quarrels, and offenses includes changes or transformations over time. ...
... Lorsqu'un conflit survient entre deux personnes ou avec les représentants d'une institution, quelles sont les chances que celui-ci se règle devant la justice ? 1 D'un point de vue théorique, le chemin qui mène de la dispute ordinaire au contentieux juridique s'apparente à un processus en trois étapes fondamentales : il faut d'abord que le problème soit nommé (« naming »), il faut que l'entité responsable soit identifiée (« blaming ») et il faut enfin que la plainte soit portée publiquement devant un tribunal (« claiming ») (Felstiner, Abel et Sarat, 1980). Chaque moment de ce processus d'accès au droit s'apparente à un filtre au terme duquel la personne lésée peut renoncer ou choisir de poursuivre sur la voie de la judiciarisation. ...
... On retrouve à travers ces deux résultats le rôle fondamental que jouent les intermédiaires du droit dans l'accès au juge. Dans leur article séminal, Felstiner, Abel et Sarat (1980) ...
... The process starts with potential cases; these are the many disputes in society that could lead to litigation [16]. A first screening mechanism occurs when lawyers and clients decide which cases have merit and are worth proceeding with. ...
We apply a dynamic influence model to the opinions of the US federal courts to examine the role of the US Supreme Court in influencing the direction of legal discourse in the federal courts. We propose two mechanisms for how the Court affects innovation in legal language: a selection mechanism where the Court's influence primarily derives from its discretionary jurisdiction, and an authorship mechanism in which the Court's influence derives directly from its own innovations. To test these alternative hypotheses, we develop a novel influence measure based on a dynamic topic model that separates the Court's own language innovations from those of the lower courts. Applying this measure to the US federal courts, we find that the Supreme Court primarily exercises influence through the selection mechanism, with modest additional influence attributable to the authorship mechanism.
This article is part of the theme issue ‘A complexity science approach to law and governance’.
... Karena kemajemukan ini seringkali menyebabkan adanya konflik horizontal, sosial, dan kepercayaan hingga menyebabkan munculnya perpecahan (Ulfaturrohmatiririn et al., 2021). Terlebih lagi, konflik akan diperparah dengan munculnya agama yang memiliki peran penting dan kehidupan bermasyarakat (Felstiner et al., 2017). Oleh sebab itu, jalan keluar untuk meningkatkan kerukunan ini salah satunya dengan meningkatkan kerukunan dalam kehidupan beragama, sebab agama memiliki peran sentral di kehidupan masyarakat Indonesia. ...
Implementasi moderasi beragama antara umat beragama memiliki peranan penting dalam membangun harmoni, toleransi, dan kerjasama antar umat beragama. Persatuan Islam sebagai organisasi Islam memiliki peran sentral dalam mempromosikan moderasi beragama. Sebagai organisasi pembaharu yang kembali kepada Al Quran dan hadis juga memiliki cara pandang dan berpikir yang berbeda dengan kelompok lain ini kemudian akan melahirkan sikap keberagamaan yang berbeda juga. Metode dan pendekatan yang digunakan dalam penelitian ini ialah pendekatan kualitatif dengan melakukan studi kasus terhadap Persatuan Islam. Data dikumpulkan melalui wawancara kepada tokoh-tokoh Persatuan Islam. Bentuk implementasi dari moderasi beragama antar umat beragama menurut Persatuan Islam ialah dengan bertoleransi dan bisa hidup berdampingan antar umat beragama dan tidak melahirkan kekerasan. Juga dalam berdakwah menggunakan cara yang baik dan bahasa yang baik.
... But prior to this, they must also have translated their everyday challenges relating to overcrowded housing, rent, the children's schooling, racism, unemployment, domestic violence, health problems, etc., to legal problems. 44 This means that the assumption that digital solutions are relevant may not only be a fallacy; 45 it might also be an emergent impediment for accessing justice: first, because it de-incentivizes face-to-face provisions of legal aid and, second, because the algorithmic translation process is difficult to do well. 46 Put succinctly: the rapid digital transformation of the Norwegian welfare state further marginalizes already vulnerable groups. ...
This chapter – which is a scoping exercise – addresses an emerging issue at the interface
of gender-based violence, economic oppression and the digital transformation of society:
how does digitalization of bank ID and legal aid shape the legal and economic problems
immigrant women face? International human rights norms around these issues are still
just emerging. To contribute to the discussion, and to help clarify the norms around digital
economic violence, we use the Norwegian context to identify a set of problem framings.
We reflect on how the effects of the digital transformation tie in with traditional drivers
and multipliers of inequality and exclusion in the context of legal aid to migrant women
... Conflict, (most notably in the form of an evidentially-contested trial), expends not only financial resources but, more importantly, it expends one's professional cognitive, emotional, and social resources. 25 There are many good reasons for avoiding conflict, including: the stress of uncertainty and loss of control of the case; the knock-on effect in managing one's case-load; conflict with other professionals which may risk future convivial relations or reputational damage in the eyes of other professionals. 26 Yet, the mass production of guilty pleas by a process which (most especially in the lower and intermediate courts) can appear to court professionals to be perfunctory. ...
That the presence or absence of remorse is felt to be central to sentencing decision-making is now well established. Most scholarship has focused on normative questions of whether and how remorse ought to influence sentencing decisions. More recently, research is exposing the difficulties and dangers faced by judicial sentencers seeking to evaluate the authenticity of expressions of remorse. Distinctively, this paper asks why, despite its apparent irrationality, judges and lawyers seem compelled to focus on the attitude of the person to be sentenced. Illustrated by recent research into sentencing and guilty pleas, we reveal how a perception of ‘zero-sum gamesmanship’ appears to defendants and judges and lawyers to pervade the daily workings of the courts, most especially in plea bargaining practices. It argues that the inability of these court professionals to know, and confidently to believe they know, the ‘real’ attitude of the defendant is intensified by the very practices court professionals feel obligated to pursue.
... In their seminal article, Mnookin and Kornhauser (1979) examined divorce settlements as a case study of legal outcomes largely bargained and determined outside of the courts-in a space they term "the shadow of the law. " Felstiner, Abel, and Sarat (1980) argue that dispute resolution is a temporal process of naming, blaming, and claiming that can be conceptualized as a dispute "pyramid," where disputes are resolved before the adjudication process through a variety of strategies. Building on this space and most useful for the understanding of eviction and poverty is Bumiller's (1987) feminist-legal analysis of the shadow of the law, where she found that women and people of color who have experienced discrimination adopt an "ethic of survival" that entails the avoidance of legal institutions. ...
From the medical field to the housing market to the criminal justice system, poor people must navigate labyrinthian organizations that often perpetuate social and economic inequality. Arguably it is through these social institutions, and through multiple processes embedded within each of these institutions, that the governance of urban poverty is effectively maintained. This essay revolves around one such process, examining how Matthew Desmondʼs Evicted: Poverty and Profit in the American City (2016) points to the eviction process as an important producer of urban poverty in and of itself. After delving into housing law and Desmondʼs ethnographic and quantitative research methodologies, the essay examines four sites where the law is at work in eviction: the eviction court; the “law-on-the-books” versus the “law-in-action”; practices in the shadow of the law; and the relationship between the criminal justice system and the housing market. One goal of the essay is to place eviction within the law, punishment, and social inequality literatures.
This article investigates the interplay between legal consciousness and legal mobilization in Chinese workplace sexual harassment cases. Drawing on 78 in-depth interviews with victims and fieldwork observations, it argues that second-order legal consciousness – the understanding of law derived from observing others’ experiences within relational networks – acts as a lens through which experiences of harassment are interpreted, inhibiting formal legal mobilization. Findings reveal that Chinese employees, facing a legal framework with limited protections and workplace hierarchies that discourage dissent, often strategically avoid formal reporting to safeguard their positions. This calculated inaction is informed by second-order legal consciousness, reinforced by the belittling of grievances, where complaints are minimized, dismissed, or normalized. Consequently, grievances are channeled away from formal, employment-based reporting toward individualized or gender-based remedies, which fail to address the systemic nature of workplace harassment. Bridging legal consciousness and mobilization literatures, this study reveals how the two concepts interact within Chinese workplaces. It further demonstrates that the belittling of employee grievances is not only a barrier to mobilization but also a crucial source of second-order legal consciousness, thus shaping victims’ decisions and perpetuating a cycle of non-reporting.
Formal complaint procedures in prisons are a requirement of the European Prison Rules and the UN Mandela Rules as a key feature of enhancing the protection of the rights of those in prison. Prisons are places where rights can be particularly vulnerable and complaints procedures ideally provide prisoners with access to an independent body to review complaints, which is less burdensome and costly than going to court. Such mechanisms should also help resolve lower-level complaints, which may not reach the relevant thresholds for court proceedings. Prisoners are often required to rely on others for their daily needs and access to services such as the school or facilitating family visits. Complaint systems, in theory, give prisoners a tool to voice concerns they have about their treatment and prison conditions. However, complaining is not always straightforward and those in prison can face significant hurdles in accessing and using complaint systems even when they are in place. This chapter explores the experiences of those in Irish prisons drawing on open-ended survey responses provided by those serving sentences in three prisons across Ireland. Key concerns arose around faith in the system to resolve the prisoner’s complaint, as well as possible repercussions for complaining which could impact the prisoner’s sentence or time in prison.
Scholars have recognized the role that legal intermediaries can play in shaping the law through their interpretations of legal ambiguity and guidance to rule-takers on legal compliance. Although legal intermediaries thus have the potential to effect social change, most research in the area of employment discrimination has focused on the way they facilitate only symbolic compliance with the law. In this article, we examine how the Equal Employment Opportunity Commission (“EEOC”) took steps that legitimized a new area of claiming, classifying sexual orientation and gender identity (“SOGI”) discrimination as prohibited sex discrimination. Drawing on 2012–2016 confidential charge data, we analyze which alleged issues had a greater likelihood of being identified by EEOC actors as strong cases of discrimination. We use quantitative administrative data and a unique dataset generated from the coding of charge narratives to develop our description of the EEOC’s categorization of SOGI charges. Our findings indicate that first by accepting SOGI charges and then by assigning 34% – much higher than other discrimination charge bases – with the highest processing category, the EEOC made new law, expanding Title VII protection. At the same time, our findings reflect that the EEOC exhibited restraint in this expansion through prioritizing charges that were closely aligned to prior gender stereotyping cases, rather than more directly signaling an SOGI identity-based protection. These findings illustrate the exercise of initiative within prior legal constraint, defining a new area of legal claiming.
Law and society scholars have long studied rights mobilization and gender inequality from the vantage point of complainants in private workplaces. This article pursues a new direction in this line of inquiry to explore, for the first time, mobilization from the vantage points of complainants and those accused of violating the rights of others in public-school workplaces in the United States. We conceptualize rights mobilization as legal, quasilegal, and/or extralegal processes. Based on a national random survey of teachers and administrators, and in-depth interviews with educators in California, New York, and North Carolina, we find an integral relationship between gender inequality and experiencing rights violations, choices about rights mobilization, and obstacles to formal mobilization. Compared to complainants, those accused of rights violations – especially male administrators – are more likely to use quasilegal and legal mobilization to defend themselves or to engage in anticipatory mobilization . Actors in less powerful status positions (teachers) most often pursue extralegal mobilization to complain about rights violations during which they engage in rights muting as a means of self-protection; when in more powerful status positions, actors use rights muting as a means of self-protection and to suppress the rights claims of others. This paper concludes with implications for future research on rights mobilization in school workplaces amidst changing political and demographic conditions.
Individuals routinely engage in instrumental transactional legal behavior, from generating tax returns to signing leases to negotiating employment terms. While some individuals undertake these activities equipped with the skills, knowledge, and capacity to behave strategically, others do not. In this article, we introduce the concept of legal actuation to describe this legal behavior and theorize its role as a source of inequality under the law. Using estate planning as an empirical example, we consider how variation in legal actuation may serve to reproduce economic inequalities and investigate the role of legal socialization, knowledge, and capability as mechanisms of advantage. In doing so, we draw attention to an understudied dimension of everyday legal behavior that has important implications for equal justice and the relationship between law and inequality.
This manuscript introduces a novel approach to labor law designed to address the challenges of its application. This framework combines proactive and reactive measures to create a more effective regulatory system. Proactive measures, often referred to as “ex-ante” actions, focus on preventing violations before they occur. On the other hand, reactive measures, known as “ex-post” actions, are geared towards identifying violations and applying penalties after they have taken place. The proactive approach emphasizes the importance of compliance through preventive measures. In contrast, the reactive approach targets enforcement when proactive compliance fails. The methodology is primarily based on the systematic study of legal doctrine, which encompasses both preventive (ex-ante) and deterrent (ex-post) methods and applies legal concepts, rules, and principles to address labor law challenges.
Thomas Mathiesen has been a source of inspiration for research in critical sociology, criminology, and the sociology of law for many decades. Mathiesen’s impact extends far beyond the academic realm, as his action research lives on. This intervention discusses the ongoing influence of Mathiesen’s action research approach, which integrates research, education, and societal impact. This is illustrated through an action research project we conducted in Denmark’s largest marginalised living area, where over 1,000 public housing units are being demolished, affecting approximately 2,500 residents. In the project, we experimented with different outreach legal aid approaches, considering our own positionalities, to gain knowledge about how to establish a legal aid infrastructure that could reach the unreachable. An ethical dilemma we faced was how we could engage with the people without inadvertently naming issues, particularly legal problems, of which they might not be aware. If the residents were unaware of these issues or did not consider them important, could we then inadvertently create and juridify new problems for them? Moreover, this intervention discusses how, in alignment with Mathiesen, we combined legal aid with legal clinical education, that is, training law students to become legal aid workers. We conclude that Mathiesen’s approach remains relevant, and by integrating his action research with decolonial thoughts, new insights may emerge to reach the seemingly unreachable.
This paper delves into the pivotal role that courts play in shaping public policy, particularly in the context of burgeoning industries. It shifts the focus from Constitutional and Supreme Courts to the significant, yet often unnoticed, role of local courts. It proposes that these local courts are uniquely positioned to act as discoverers of vital information for public policy, especially critical in the fast-paced arena of emerging industries where policymakers often lack comprehensive information. This study highlights three key mechanisms used by courts to gather policy-relevant information: collection, scanning, and extraction. These methods help reduce political bias, explore policy boundaries, and propose feasible alternatives. The paper illustrates these processes through six cases from the emerging industry sectors in China, adjudicated by local courts. It emphasizes the necessity for policy practices to take into account the nuanced judicial judgments at the micro level.
The COVID-19 crisis became a great opportunity to spread populistic discourses that were usually accompanied by conspiracy theories. The article reveals a gradual process of politicization of the crisis by various Lithuanian populist actors, transforming the COVID-19 pandemic from a medical issue into a political one. Ernesto Laclau’s theory of populism combined with William Felstiner’s framework of politicization conceptualize these processes. The research showed that populist actors used a specific discourse dynamic to make the pandemic a political issue, moving from criticism of the specific measures to manage the pandemic, to an abstract and negative assessment of the situation as a whole.
Scholars have long questioned whether and how courts influence society. We contribute to this debate by investigating the ability of judicial decisions to shape issue attention and affect toward courts in media serving the LGBTQ+ community. To do so, we compiled an original database of LGBTQ+ magazine coverage of court cases over an extended period covering major decisions, including Lawrence v. Texas (2003), Goodridge v. Massachusetts Department of Public Health (2003), and Lofton v. Secretary of Department of Children & Family Services (2004). We argue these cases influence the volume and tone of LGBTQ+ media coverage. Combining computational social science techniques with qualitative analysis, we find increased attention to same-sex marriage after the decisions in Lawrence , Goodridge , and Lofton, and the coalescence of discussions of courts around same-sex marriage after Lawrence. We also show how LGBTQ+ media informed readers about the political and legal implications of struggles over marriage equality.
This article investigates the strategies that women human rights defenders use to engage in legal mobilization and overcome gendered barriers to justice. It does so through analysis of a specific health and safety dispute involving women workers and the Republic of Korea's biggest semiconductor corporation.
In this introductory chapter, we outline the literature in which the anthology is positioned and the anthology’s contribution hereto. We account for the questions addressed in the anthology and its structure based on three sections that each analyses transformations of European welfare states and social rights from macro, meso and micro level perspectives, respectively. As described in the chapter and illustrated throughout the anthology, the three levels are interlinked: Macro level welfare state transformations influence the meso level of public encounters between welfare professionals and citizens, and on micro level, these encounters have real effect for, for example, citizens’ access to social rights. Linking the levels, the anthology contributes with analytical insights into welfare state transformations and social rights.
The literature on legal pluralism highlights the presence of multiple legal systems in a social field as a ‘reality’. Works on forum shopping and shopping forums inform us about the choices that disputants and forums have, in choosing forums and disputes respectively, for a favourable outcome. Drawing from my research on land disputes in the northern part of India, I argue that these legal systems are singularly insufficient to resolve contentious land disputes. Therefore, they should be seen as inadequate parts of a larger legal arena where the plurality of legal systems become a ‘necessity’. This plurality provides an answer to the difficulties faced by state and non-state legal systems in resolving land disputes. This necessity of the plurality of the legal arena in cases of land disputes should be grappled with by comprehending how land is positioned in a complex of social, political, and economic relations. Unless this position of land is grasped and addressed, a solution to land disputes seems difficult to reach. Through an ethnographic study of the accounts of a dispute between two neighbours — Ramvilas Yadav and Sanjay Sav — I show the insufficiency of both the formal legal system of the state and the non-state adjudicating mechanism of the village.
An intractable conflict environment (ICE) is an extreme context in which deep, unsolvable conflict between groups is central to the actors within it. While non-ICEs are typically assumed in organizational research, ICEs are increasingly common contexts for organizations. Moreover, this context influences peoples’ interpretation of potential organizational conflict incidents inside the organization and therefore the likelihood and emotional intensity of organizational conflict events. Whereas a potential conflict incident, such as a disagreement over how to complete a task, may be perceived as benign in a more typical environment, the same incident is more likely to be interpreted as much more negative and emotionally intense when taking place in an ICE, increasing the frequency of conflict events (conflictual behavior). Prior work suggests that, in a typical environment, promotion-framed (achieving positives) interventions reduce conflict more than prevention-framed (avoiding negatives) interventions by temporarily inducing promotion orientations that reduce the likelihood of interpreting conflict. However, we argue an ICE induces a strong prevention focus, which overrides promotion-framed interventions. Instead, we argue in an ICE, a prevention- rather than promotion-framed intervention is likely to be more effective because it “matches” the strong prevention focus. To test this prediction, we examine the difference in number of conflict events in farming cooperatives in rural Ghana (an ICE) after instituting prevention- versus promotion-framed interventions aimed at addressing conflict. Quantitative and qualitative findings from a 9-month field experiment support our hypothesis.
What does the public think it means to “settle” a civil case? Most legal disputes in the United States end in an agreement to settle, but little is known about what laypeople think about settlement. To fill this gap, we took a direct approach: we asked a nationally representative sample of US adults—more than 1000 of them—basic questions about settlement. We found widespread understanding about the essential nature and frequency of settlement, but persistent, though not universal, misconceptions about the details, including the role of a jury and settlement scope. Because settlement is such a pervasive part of the US legal system, the system's legitimacy turns in part on how the public understands and views civil settlement. The survey reported here provides a foundational study of the understandings and framework—the schemas—that the public bring to settlement.
This paper discusses the effect of income on access to justice in the context of the Dutch welfare state, which offers subsidized legal aid to low‐income households and also has a well‐established market for private legal expenses insurance. We find that access to non‐state legal resources such as legal expenses insurance is a key determinant in seeking legal advice, particularly for middle‐income groups whose socioeconomic position is increasingly precarious. The importance of non‐state legal resources for the middle class demonstrates the cushioning effect of subsidized legal aid for low‐income households, but also raises questions about how to safeguard access to justice for households other than those with the lowest incomes. We would like to thank our colleagues at the Research and Documentation Centre (WODC) and the anonymous reviewers of Law & Policy for their helpful comments on an earlier draft of this article.
The main focus of the paper is to analyse selected English and Polish online comments on the Russia-Ukraine war (2022) from the perspective of dialogical discourse and define to what extent the exchanges satisfy the criteria of different types of dialogism with regard to their self- or other-referential character, i.e., inwards- or ingroup- directed, and what other circumstances are decisive in the determination of the exchange profiles. The materials are derived from selected Twitter comments referring to the war in Ukraine and its refugees, which dominate large segments of today’s online discourse. The research methodology employed is an interactional discourse analysis, which assumes that meanings are dynamic and created in interaction, and shaped by the cognitive and social potential of the participants, and their ideological preferences. The outcomes of the analysis indicate a complex character of the exchanges from a dialogical typology dilemma perspective and shed some light on the speakers’ argumentation. The analysis also shows a lower radicalization axis than in comparable samples referring to earlier refugee crisis scenarios in the years 2016–2020.
This study drew on interviews with elementary school children (aged 8–12), parents and teachers to explore whether and how children name online infringements of their rights and mobilize their rights when they experience such infringements. The findings revealed distinctions between rights infringements external to children's social world and infringements internal to this world that are intertwined with children's close relationships. Naming internal infringements proved more complex, particularly when the injuries were masked as pranks or conducted between siblings. The distinction between internal and external rights infringements was also apparent in children's mobilization of their online rights.
The ways in which grievance procedures are used and perceived by incarcerated people raise important questions about the operation of procedural justice and legal consciousness and mobilization scholarship in settings where rights are especially vulnerable. This paper analyzes perceptions and usage of the grievance procedure for incarcerated people using survey data from people (N = 508) in three prisons in Ireland. We find that incarcerated people's views of the grievance procedures are generally negative, though some use it, especially those serving long sentences and those in segregation, with education level not significant in terms of usage. Additionally, having confidence in staff is associated with satisfaction with the procedure, as is the perception that one's rights are respected, showing important connections between perceptions of complaints and aspects of legal consciousness. We suggest a need for further situated analyses of procedural justice and legal consciousness, as well as practical requirements for complaints systems to elicit confidence among incarcerated people.
This thesis offers a study of power exercise in three different types of neighbourhoods in Beijing, China, where the author carried out fieldwork from 2007 until 2009. This approach « from below » aims at understanding daily life by crisscrossing urban microsociology and comparative politics. The urban neighbourhood, as a site of power, undergoes different forms of hetero-control, social control and self-control. The neighourhood space is produced by the interactions and theatrical dispositions of the inhabitants, but also by the local workers, among whom the people who work in residents' committees. This organization located at the root-level, though not officially part of the urban administration, is involved in the reform of local public action known as « neighbourhood communities » building (shequ jianshe). An essential link between the inhabitants and the upper-level administration, the committee can be seen as a new generation of street-level bureaucracy. The process of domination is initiated both by the state's strategies aiming at shaping modern civilized citizens living in an international metropolis, and by the inhabitants' yearning for comfort, order, stability. The converging of these different interests leads to the new residential model (xiaoqu), which creates mechanisms of submission (to the logic of the market) as well as subjection (the individuals being able to invent new frames with their daily practices). The eneighbourhood has thus become the core of the state's local formation, a place where each individual is more and more responsible of his own domination, a place more and more conform to the social image of the « good life ».
Based on cross‐national comparative research conducted in France and the United Kingdom, this article explores to what extent and under what conditions trade unions situated in different legal systems have turned to the courts to challenge discrimination at work. It investigates the interplay between a broad range of structural factors that offer specific opportunities, and the way in which trade unionists interpret contexts to promote legal mobilization in addition to or in place of other repertoires of action. In so doing, the article contributes to the understanding of anti‐discrimination law enforcement and the role of micro‐level actors in enabling litigation strategies.
The chapter presents the theoretical framework of the book and the observable implications. It begins by discussing the main theoretical perspectives and key concepts on which the book’s theoretical argument is built. By drawing eclectically on the literature on agenda setting, ideas and social construction of problems, the chapter then conceptualises the argument as a configuration of three-stages in which a problem definition originates (stage 1), develops in the policy-making arena (stage 2) and is institutionalised as policy solution (stage 3). For each of these stages, observable implications are derived. The second part of the chapter outlines process tracing as the most suitable method for assessing the influence of ideas at key points in time and distinguishing the influence of ideas from the influence of other conditions.
The chapter situates the conceptual, historical and theoretical grounds of the central issues of the book: the puzzle of the transformations of European Education Policy. From being a ‘grey area’ not mentioned in the Treaty of Rome and always regarded as a national policy prerogative, European Education Policy has undergone a dramatic transformation over the last two decades. The link between education and economic growth and the emergence of a ‘European educational space’ under the coordination of the European Commission are the two main components of these transformations. After addressing the limitations of the two ‘grand-theories’ of European Integration in explaining these transformations (supranationalism and liberal intergovernmentalism), the chapter argues that only an ideational perspective can provide a satisfactory explanation for this puzzle and considers how the construction of a powerful framework around the notion of a ‘Europe of Knowledge’ framed education as a solution to Europe’s lack of competitiveness.
The article analyzes Israel's ecclesiastical court system through the prism of Weberian theory to both empirical and theoretical ends. On the empirical level, it aims to illuminate a grossly understudied socio‐legal arena—the communal Christian courts in the Middle‐East. On the theoretical level, it seeks to reclaim the Weberian concept of kadijustiz, which refers to “formally irrational” legal systems. In recent decades, scholars have engaged in a process of “blaming” that discredited the conceptualization of Islamic law as kadijustiz and resulted in the concept's erasure from socio‐legal theory. After renaming it to the more neutral and non‐Orientalist richterjustiz, we employ this new‐old concept to analyze Israel's ecclesiastical courts and demonstrate its theoretical and analytical merits. The article concludes with several theoretical propositions, which draw on the empirical case study and contribute to the refinement of Weberian theory.
The uniquely novel constitutional setting in Bolivia establishes the recognition of indigenous collective rights, indigenous jurisdictions, and indigenous institutions. However, many indigenous groups are uncomfortable with this judicial machinery, which portrays them as vulnerable groups before the legal system. This article highlights the Bolivian indigenous groups’ dissatisfaction and proposes a conceptual framework to address the apparent legal inequality from a socio-legal approach.
This article is written around the time a Dutch court ordered the corporate group Shell to cut its carbon emissions by 2030. The aim of the article is to contribute to the conceptualisation of the phenomenon this judgement unveils in terms of greening human rights litigation supported by the United Nations Guiding Principles on Business and Human Rights (UNGPs). It addresses, firstly, how claiming the protection of the Earth before courts is occurring in a highly fragmented legal, economic and social context as a way to overcome the multiple obstacles flagged by the literature on the UNGPs. Secondly, it assesses how human rights litigation seeking global justice has evolved in waves with common trends, such as activism from social actors and courts that rely on arguments based on progressive soft law. Thirdly, it identifies two trends in the current wave of green litigation: the anthropocentric perspective that claims the protection of the Earth in the public interest and the ecocentric perspective that claims autonomous rights for Mother Earth. Finally, the article flags some gaps in this third wave of human rights litigation, particularly the risk of disregarding the third pillar of the UNGPs: access to an effective remedy for marginalised communities that are not aware of these ongoing developments.
For years, Common law and Civil Code have determined the legal age as majority which defines adulthood, giving a presumption of legal capacity to adults. At this age, all adults are presumed to be capable of making their own decisions, protecting their interests and exercising the rights they enjoy in the acts of their civil life. This legal presumption of capacity structures the life-course of adults and allows them to act and make decisions either in daily life or for exceptional civil acts, for instance, marriage. Domestic laws, including French laws, do provide for certain exceptions, especially for persons suffering from disease or disabilities. The use of substitutive decision-making, or “coercive legal” measures, is increasing. At the same time, these legal substitutive decision-making measures have encountered challenges. The cornerstone Article of International Convention on the Rights of Persons with Disabilities (CRPD) reaffirms the exigence of equal recognition of all persons before the law with equal capacity. The interpretation of this article 12 is subject to considerable controversy. The controversy around CRPD and the paradox between the normative evolution of fundamental rights and the increasing uses of legal substitutive decision-making measures in social practices raise questions about the place of this legal presumption of capacity. In this article, we wish to tackle this controversy by starting with situations where the daily capacity to exercise one’s rights becomes an issue for the professional or family circle. What happens when persons seem unable to understand the consequences of their actions or when they behave incomprehensibly according to their close ones? When should others around the person worry about the person’s ability to take care of oneself? What happens when a person’s ways of functioning change? Is it an indication that his or her state of health is experiencing changes? That the person’s needs have evolved? What does this imply for family and friends, especially in terms of actions or substitute decisions? Using the core notion of “capacity trajectory,” this article intends to empirically shed light on how rights and legal capacity are exercised in situations of vulnerability. We wish to demonstrate that the presumption of capacity requires certain “conditions of capacity” in practice.
This chapter focuses on the Italian case, and it addresses two different populist parties—5 Star Movement and League—that played different roles during the pandemic crisis. Whilst the League was in opposition, the M5S was serving in government. As a consequence the two populist parties developed very diverse communication strategy for handling the crisis. The League struggled to adapt its traditional populist claims to the pandemic emergency, whilst the M5S in line with other mainstream parties addressed the crisis by emphasising the institutional role played. In general, the COVID-19 outbreak defused the relevance of some populist issues among citizens and within political debate. Specifically, the League was not able to set the agenda or to claim the ownership on any of the issues under discussion, by contrast the M5S had the chance to manage the crisis and preserving its relevance within the political scenario.
This contribution offers a reminder of the state of political forces in France and the course of the health crisis, which initially took place in a context of strong political tensions, particularly as a result of the controversial pension reform decided by Macron. The COVID crisis allowed populist parties to develop ‘naming’ and ‘blaming’ strategies, initially mobilized in different proportions, to attack the President of the Republic Macron. The analysis shows that the decision to introduce a lockdown led the two leaders of the parties described as populist to harden their criticism to similar proportions but also to ‘claim’ rapid responses to the crisis. These speeches are also part of the medical polemics that will have been omnipresent throughout the pandemic. Finally, we observe that these strategies have not been beneficial to the populist parties, since during the municipal elections the two parties did not manage to take advantage on this health and political sequence.
It is widely believed that populists benefit from crisis situations. This chapter discusses the literature on crises and populism from a theoretical perspective and provides a novel framework of analysis for addressing the study of the COVID-19 crisis in the light of its (de)politicization. This framework allows the study of the politicization of the COVID-19 issue by populists looking at the divide between the political and the non-political status of the issue, disputes about different stakes and their relative priority in managing the crisis, and issue-specific and policy-related contentions about COVID-19. The general research question is whether populists in Europe used the COVID-19 issue to gain centrality in the political field and/or to push forward new opposition lines. A further related question is to pinpoint whether populists reacted in a similar way across countries or whether they adapted their response according to their institutional role.
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This chapter addresses the general research questions of the book, namely the possibility that populists in Europe can profit from a peculiar crisis such as COVID-19, and it wonders whether populists reacted in a similar way across countries or whether the institutional role they play at the national level has affected their reactions. Findings show that while populists have tried to take advantage of the crisis situation, the impossibility of taking ownership of the COVID-19 issue has made the crisis hard to be exploited. In particular, populists in power have tried to depoliticize the pandemic, whereas radical right-populists in opposition tried to politicize the crisis without gaining relevant public support though.
Litigation by private parties is authorized by dozens of federal statutes, resulting in thousands of lawsuits every year. Recent scholarship has suggested that Congress authorizes litigation by private parties to enforce federal law in order to limit the ability of the president to influence enforcement. I argue, however, that the apparent influence of presidential partisanship on adoption of private enforcement regimes is spurious, resulting from the increased use of this enforcement mechanism beginning in the 1960s. Further, I show that presidents meaningfully influence the rate of private litigation. Specifically, for statutes with liberal policy goals, litigation rates are substantially higher when a Democratic president is in office and when agencies are more politicized. Therefore, if Congress desires to insulate policy from the president, private enforcement regimes are unlikely to be a useful policy tool.
A central assumption in industrial relations theory is that conflict is rooted in an enduring difference between the interests of labor and management. In recent years, the reality of work has changed for many, and scholarship has called attention to overlooked dimensions of conflict that depart from this assumption. The authors account for these developments with the concepts of multiplicity and distance. Multiplicity means that a broad range of actors bring diverse goals, tied to identities and values in addition to interests, to the employment relationship. The competing and fluid motivations that stem from these goals alter how actors individually and collectively name conflict. Distance reflects a growing rift between those who control work and those who labor, rooted in prevailing organizational forms and practices and the transformation of institutions. Distance alters actors’ interdependence and their perceived and actual power in addressing conflict. From these observations, the authors derive propositions suggesting directions for research and theory regarding conflict and the institutions through which actors balance goals.
In France, occupational exposure related to asbestos has been responsible for nearly 200,000 deaths, leading to a massive scandal in the 1990s. In this article, I report the results of a qualitative empirical study, based on 50 interviews with victims, of how those affected by asbestos exposure interacted with two types of compensation mechanism: a compensation fund – a public administrative system subsidized by employers’ taxes – and the courts. Several scholars have asserted that, given that the employers are not judged to be guilty in this instance, compensation through such funds does not carry any moral meaning. In contrast to these arguments, I show that victims attribute a diversity of normative meanings to these mechanisms. The analysis highlights, in particular, how three factors affect the ability of victims to attribute normative meanings to compensation processes: the career paths of the victims; the trust of victims in their employer; and the type of legal intermediaries they meet – namely, doctors or victims’ associations. The article encourages scholars to analyze the role of these legal intermediaries in order to understand how victims make sense of a particularly complex public health scandal.
Legal authorities’ second‐order legal consciousness—their perceptions of others’ understandings of law—shapes the social realization of legal power. Analysis of interviews with welfare fraud enforcement workers from five US states reveals their perceptions of how clients view law, policy, and enforcement practices, and shows these perceptions’ consequences. Enforcement workers’ perceptions influence the discretionary work of policy implementation, as fraud workers attempt to circumvent what they see as clients’ evasive maneuvers and act in ways they believe will influence clients’ thinking and behavior. Fraud workers’ second‐order legal consciousness can also influence welfare law, when their perceptions of clients’ understandings and behaviors drive changes in written rules. Together, these effects demonstrate the power of authorities’ second‐order legal consciousness to affect both law in action and law in books. Through documenting the impact of authorities’ second‐order legal consciousness, this study fills an important gap in social scientific knowledge of how ongoing, dynamic processes of assessing others’ thinking and responding accordingly shape law‐infused environments.
This chapter argues that the ombud should be granted own-initiative powers of investigation. The case for this is four-fold: prevalence and successful experiences internationally; evidence in relation to complaining behaviour and the non-emergence of disputes; evidence in relation to under-representation of vulnerable groups; and identification of clear added-value contributions arising from own-initiative powers. The chapter explores how own-initiative powers should be calibrated and framed. International practice is analysed on investigation triggers, criteria for launching investigations and topics commonly investigated. The chapter considers three arguments against own-initiative powers—the “red-tape”, “mission drift” and “rogue ombud” arguments—and suggests that each of these can be answered through appropriate legislative framing. The chapter concludes that broad powers are required, controlled through reporting requirements that balance accountability and effectiveness.