Law and Social Inquiry-Journal of the American Bar Foundation最新文献

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game-theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well-grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game-theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game-theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.

International law dictates that actors in armed conflicts must distinguish between combatants and civilians. But how do legal actors assess the legality of a military operation after the fact? I analyze a civil proceeding for compensation by victims of a German-led airstrike in Afghanistan. The court treated military video as key evidence. I show how lawyers, judges, and expert witnesses categorized those involved by asking what a “military viewer” would make of the pictures. During the hearing, they avoided the categories of combatants/civilians; the military object resisted legal coding. I examine the decision in its procedural context, using ethnographic field notes and legal documents. I combine two ethnomethodological analytics: a trans-sequential approach and membership categorization analysis. I show the value of this combination for the sociological analysis of legal practice. I also propose that legal practitioners should use this approach to assess military viewing as a concerted, situated activity.

The coevolution of private detective agencies and municipal police bureaucracies in mid-nineteenth-century Chicago arose from the breakdown of an older system in which the provision of law enforcement was delegated to local communities. The growth of anonymity and the presence of strangers in a city undergoing massive changes in transportation undermined this delegative system and created the perception of new public security threats. These threats were compounded by the mobilization of ethnicity in partisan politics. To address these new concerns, political and e conomic elites did not innovate, but turned to traditional practices like special deputization. The use of deputization allowed some law officers to sell their services as entrepreneurs to private firms, while also paving the way for a new bureaucratic police department. Networks of security providers locked in this transformation and made public and private policing alike a permanent feature of the city's institutional landscape.

Research on jury deliberations has largely focused on the implications of deliberations for criminal defendants' outcomes. In contrast, this article considers jurors' outcomes by integrating subjective experience into the study of deliberations. We examine whether jurors' feelings that they had enough time to express themselves vary by jurors' gender, race, or education. Drawing on status characteristics theory and a survey of more than 3,000 real-world jurors, we find that the majority of jurors feel that they had enough time to express themselves. However, blacks and Hispanics, and especially blacks and Hispanics with less education, are less likely to feel so. Jurors' verdict preferences do not account for these findings. Our findings have implications for status characteristics theory and for legal cynicism among members of lower-status social groups.

To understand how law works outside of sanctions or direct coercion, we must first appreciate that law does not generally influence individual behavior in a vacuum, devoid of social context. Instead, the way in which people interact with law is usually mediated by group life. In contrast to the instrumental view that assumes law operates on autonomous individuals by providing a set of incentives, the social groups view holds that a person's attitude and behavior regarding any given demand of law are generally products of the interaction of law, social influence, and motivational goals that are shaped by that person's commitments to specific in-groups. Law can work expressively, not so much by shaping independent individual attitudes as by shaping group values and norms, which in turn influence individual attitudes. In short, the way in which people interact with law is mediated by group life.

How is legal order possible? Why do people comply with law when it prevents them from doing what they think best? Two important books show how these questions can—and from some methodological perspectives must—be answered in the form of game-theoretic accounts that show how legal compliance can be compatible with the broad self-interest of officials and citizens. Unfortunately, however, these books also serve to demonstrate that game-theoretic accounts along these lines lack the resources to explain how real-world legal systems emerge and evolve or the various institutional shapes these systems take. The fundamental limitation of game theory, in this context and more generally, is its inability to predict or explain the size and shape of cooperative equilibria.

This article examines the persistent authority of lobola, the customary practice for forming marriages in many South African communities. South African marriage rates have sharply fallen, and many blame this on economic challenges completing lobola. Using in-depth, qualitative research from a village in KwaZulu-Natal, where lobola demands are the country's highest and marriage rates its lowest, I argue that lobola's authority survives because lay actors have innovated new approaches for pursuing emerging desires for marriage via lobola. I argue that dyadic narratives of marriage increasingly circulate alongside “traditional” extended-family narratives, especially among the young women who strongly support lobola while yearning for gender-egalitarian marriages. My argument synthesizes actor-oriented analyses of legal pluralism with Ewick and Silbey's theorization of lay actors’ role in producing legality to illuminate how lay actors contribute not only to the form and content of different legal systems, but also to the reach of their authority.

Professors Schauer and McAdams both seek a more or less sweepingly general theory of why we obey the law. But we should split, not lump. There are different reasons different actors in different social settings obey different laws–not only, but not least, out of regard for democratic decision making.