AMICI

Newsletter of the Sociology of Law Section
American Sociological Association

Volume 4, Number 2   (Spring, 1997)




FROM THE CHAIR

Lauren Edelman
Section Chair


I am happy to announce that plans are underway for a reception at the
Toronto Meeting, which will be cosponsored by the Crime, Law, and Deviance
and Sociology of Law Sections.  Tentative plans are to hold the reception
at 5:00 PM on Saturday, August 9 at the main conference hotel (but please
check your programs since this could change). Frank Munger has put
together some wonderful panels for the Toronto Meeting (listed below), and
I hope that as many as possible will participate in the Business Meeting,
which will be held on our section day, Sunday August 10. Graduate students
are strongly encouraged to attend the Business Meeting it is a great way
to get involved and to meet people. If anyone has agenda items they would
like to see discussed, please send me e-mail at
ledelman@uclink4.berkeley.edu. 

    The Sociology of Law Mentoring Program, which matches assistant
professors with more senior colleagues at another institution, is off to
a good start.  Bob Nelson at Northwestern is working with Ryken Grattet
at  U.C. Davis; Rick Lempert at Michigan is working with Kenneth Mentor
at Indiana University South Bend; Robin Stryker at Iowa is working with
Amy Pool at George Mason; Patricia Steinhoff at Hawaii is working with
Beth Quinn at Montana State; Bill Felstiner at U.C. Santa Barbara is
working with Mathieu Deflemm (who just landed a tenure-track job at
Purdue; also see book announcement below ); and I am working with
Catherine Connolly at Wyoming. I still have some assistant professors
seeking mentors, so if any others would like to participate as mentors
(or as mentees), please get in touch with me.  Also, it would be great to
receive some feedback from current participants (thanks to those of you
who have already e-mailed me).

I look forward to seeing many of you in Toronto this August.

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Announcement from the Chair of the Publications Committee

In response to requests from several members of the section, I have set
up a discussion list through the listserv at Bucknell.  In order to
subscribe, send the following message to listserv@bucknell.edu:

subscribe soclaw-talk {Your Name}

To remove your name from the discussion list, send the following message
to listserv@bucknell.edu:  

unsubscribe soclaw-talk

Unlike the soclaw-mailing list, the discussion list requires the
participant to subscribe themselves.  If you are not on the
soclaw-mailing list and would like to be included, please send your name
and email address to silbermn@bucknell.edu. Information concerning how to
use the digest option, along with other features of these listservs will
be forwarded to you when you subscribe.

Matt Silberman, Chair
Publications Committee

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PROGRAM TORONTO

Below is the Sociology of Law Section Program for the 1997 ASA Meetings
in Toronto, as it stands at the time of publication.  Be sure to check
your final ASA program for updates, additions or other changes.


                          ASA INVITED SESSION

"Crime, Punishment and Change in Western Democracies:  Governance,
Knowledge and Politics" 

Organizers:  Karen Heimer, (University of Iowa) and John Sutton,
(University of California-Santa Barbara)

Presider:  Karen Heimer, (University of Iowa)

Presentations:

Jonathan Simon, (Yale Law School), "Governing Through Crime in a
Democratic Society"

Joachim Savelsberg, (University of Minnesota) "Crime and Punishment: 
 The Role of Knowledge and Domination in Inter-Systemic Comparison"

John R. Sutton, (University of California-Santa Barbara) "Punishment,
Politics, and Social Policy in Western Industrialized Societies"

Discussant:  John Hagan, (University of Toronto)
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                             ASA SESSION

AUTHOR/READERS and SECTION BUSINESS MEETING

"Article Prize Winner Meets Readers" and "Business Meeting" 

Session Organizers:  Frank Munger, (State University of New at Buffalo)
and Patricia Ewick, (Clark University)

Presider:  Frank Munger, (State University of New at Buffalo)

Presentations:  The author(s) receiving the 1997 awards for best article
and best student article will discuss their work. 

Discussion will be followed by the section's annual business meeting.

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                 ASA REGULAR SESSION/OPEN SUBMISSION

		    "Law, Community and Personhood"

Organizer:  Frank Munger, (State University of New York at Buffalo)

Presider:  Amy Bartholemew, (Carleton University)

Presentations:

Kaaryn Gustafson,( University of California at Berkeley) "Violence and
Mercy:  The Paradox of Property and Welfare." 

Patricia A. Murphy, (State (University of New York at Geneseo) and Elaine
R. Cleeton, (Colgate University) "In the Best Interest of the Child: Legal
Regulation of Motherhood." 

Sarah Gatson, (American Bar Foundation) "Negotiation and Coercion: Race
and Law in the US, 1840-1900." 

Norbert Wiley, (University of Illinois-Urbana) "The Congruence of Natural
and Legal Personhood." 

Discussant:  Gayle MacDonald, (St. Thomas University)

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                  ASA REGULAR SESSION/OPEN SUBMISSION

	    "Changing Law and Changing Social Institutions"

Organizer:  Frank Munger (State University of New York at Buffalo)

Presider:  Carroll Seron (City University of New York)

Presentations:  

Teresa Scheid, (University of North Carolina- Charlotte) and Mark Suchman,
(University of Wisconsin-Madison) "Legal Rational Myths:  Ritual
Conformity to the Americans With Disabilities Act." 

Richard Mancuso (State University of New York at Buffalo) "The Best' of
Intentions:  Reforming New York State's Child Protection System and
Masking the Real Reasons for Organizational Failure." 

Mathieu Deflem (Kenyon College) "War and Police: Transformations of Law
Enforcement in Two World Wars." 

Mary Vogel (University of Michigan) "The Courts and the Making of
Post-Revolutionary Political Authority, 1820-1860." 

Discussant:  Carroll Seron (City University of New York)

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WHAT ARE WE: I


In our last issue, Lauren Edelman, Chair of the Section, offered some
thoughts on what she sees as distinguishing features of the Sociology of
Law.  Below are two further short essays offering other views.  The first
is David Lempert's direct response to Lauren's column.  The second is an
excerpt from "Legal Cultures and the Rule of Law," a book forthcoming by
Philip Selznick. 


Dear Lauren,

I wanted to try to answer the challenge you posed in the Fall issue of
Amici, from the perspective of a "social anthropologist" and lawyer who
is a proud member of the Sociology of Law Section of the ASA and is
curious about the lines you are trying to draw between fields.

     According to your boundary definition, anthropology of law would not
exist, because almost everything that you suggest defines the sociology
of law (study of social stratification, social change, socialization and
deviance) are areas that "legal anthropologists" also study when looking
at cultures, societies or the interactions between them.  These were
major  points of focus in an ethnographic study of the Russian legal
system for which I was awarded a doctorate by Berkeley's anthropology
department, five years ago.  Methodologically, anthropologists (as
defined by their degrees) are similarly committed to both qualitative and
quantitative empiricism, as well as in using a variety of social science
methodologies.

     The analysis of texts and stories is something that I notice in
legal scholarship (something more akin to a modern theological exercise)
and philosophy and among cultural anthropologists who are interested in
folklore, linguistics and aspects of myths and patterns, but that only
differentiates some anthropologists; and I am not sure that they would
want to define themselves on that basis.

     Probably the only factor described in the section membership
statement that anthropologist members of the section would question is
the commitment that you believe Sociology of law has to the study of the
emergence of "capitalism".  To many anthropologists, the ideology of
"capitalism" is, itself, one of those myths and stories that you say
sociologists of law don't study.  Anthropologists tend to view "isms"
like "capitalism" as theologies with their own creation myths (such as
"communism", "Marxism", "mercantilism", and so on).  Since "capitalism"
seems to have so many different definitions and seems to be a politically
loaded word in American society and culture, anthropologists would look
more closely at the various processes and relationships themselves, as
part of exchanges, resource flows, the behaviors of different empires and
complex systems; but this is exactly the kind of positivistic study that
you would say distinguishes sociology of law.

     Alexis de Tocqueville and Lloyd Warner would, thus, be in the
tradition of  legal anthropologists, along with, perhaps C.Wright Mills,
and certainly Durkheim.  Only Weber is clearly on your side since he
wrote about "capitalist" "spirits" and "ethics".

     Where I am leading is that I think we are obligated to define
ourselves by  the kinds of questions we commonly ask and problems we seek
to solve, and how they benefit mankind, which is the real raison d'etre
for our existence, and not about specific methodologies or traditions or
the labels of our degrees or even geographic contexts which we share.

     The discipline of "legal anthropology" if such a thing exists (and
if it does, it is oxymoronic, because anthropologyis the study of
cultures and societies as wholes, with each part interrelated and with
"law" itself a difficult define construction) allows me to relatively
comfortably ask questions about how empires work to subjugate or absorb
minority peoples and redefine their norms, to scientifically model
genocide and revolutionary movements, to derive new models for laws that
will protect individual rights and cultural or group rights and to model
them in different kinds of systems, as well as to look at how
relationships and conflicts are patterned and how they can be changed.
It allows me to design social experiments and even to use universities
and academic disciplines, themselves, as a kind of data for critical
analysis and places to try to address the same kinds of harms which
anthropologists hope that their work can stop elsewhere.  In many ways
anthropologists (and "legal anthropologists") define the issues they
study starting from a moral concern of trying to protect the dignity,
autonomy and diversity of peoples and then developing the science to
allow us to make better decisions about those concerns; something at the
heart of Bronislaw Malinowski's concerns in Nazi occupied Europe as well
as in colonial outposts.

     From the outside looking in, it seems to me that legal sociology
began with related moral concerns, which is why I am happy to accept that
label, as well, and to consider myself an active and full-fledged member
of the sociology of law section, despite my "bad ancestry" or "bad class
background" of having "Anthropology" stamped on my diploma.

     My view of "legal sociology" has been that it begins with the moral
concern of maximizing individual rights or opportunities within a complex
society, given the "natural laws" of society.  It is with these moral
concerns, it seems to me, that are at the heart of sociology of law, with
Weber and Durkheim and Sorokin asking questions about how to protect the
dignity of the individual in the bureaucratic or authoritarian state, and
the opportunities of the poor and talented in an increasingly stratified
one.  I have always been excited to see what "legal sociologists" can
come up with on these and that is what attracts me to membership in the
section; to increase an exchange in modeling and addressing these issues
without concern for any other labelling or definition or differentiation.
 What is the point of a turf battle when we have important problems to
solve?   Let's just make sure we don't forget the questions and the moral
concerns that underlie them.

     If anything, the drift away from remembering these questions and our
basic purpose and trying to redefine what we do simply by the tools we
use is exactly what Weber and Durkheim warned against, isn't it?  Perhaps
we are at fault for letting our fields be increasingly defined not by
questions and human concerns but by history and sources of funding; e.g.,
the growing American prison and police industries seeking scholars to
record their growth and provide justification for their existence or the
wish to answer narrow technical questions about the effectiveness of this
or that in American society.

David Lempert, Ph.D., J.D., M.B.A.

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WHAT ARE WE: II


Selected from "Legal Cultures and the Rule of Law," by Philip Selznick.
Revised version of a lecture presented at the international conference of
the Research Committee for Sociology of Law, Tokyo, 1995. Forthcoming in
Adam Czarnota and Martin Krygier (eds.), The Rule of Law after Communism
(Dartmouth Publ. Co. (UK).


                                *   *   *
It is an unspoken premise of legal sociology that the line between legal
and nonlegal institutions is blurred in reality and should be blurred in
policy. In some important sense, not fully understood, an integration of
law and society is both recognized and espoused. This is what Lon Fuller
had in mind when he recoiled from the phrase "law and society." He did
not consider that an appropriate name for what we were about when we in
Berkeley founded the Center for the Study of Law and Society. He
preferred the phrase "law in society." This sensitivity may also explain
why some people balked when I said, years ago, that in legal sociology we
must maintain our grasp on the "distinctively legal," that we should not
allow law to be dissolved conceptually into the broader idea of social
control. I was making an analytical point, but the response, I believe,
was to a perceived symbolism, one that contained the apparent suggestion
that law has a special dignity and that nonlegal elements of the
normative order are of lesser value and importance. Whatever the merits
of that controversy, the implicit theory of sociolegal integration is not
far to seek.

     That theory is normative as well as descriptive. A tacit assumption
is that the integrity and effectiveness of both law and social life will
be retained and even enhanced by their mutual integration. The quest is
for law that fits into and strengthens the continuities of social life;
and for the kind of society and culture that will permit law to perform
its special functions and realize its potential moral worth. The
integration of law and society does not contemplate unraveling the social
fabric in the name of law; nor is law to be made impotent or irrelevant.

     This topic has been a prominent, almost fully explicit theme in the
postcommunist countries of Eastern Europe. As we know, there has bveen a
great revival of interest in "civil society," and in the related idea of
"normality." Totalitarian communism tried to establish complete control
over social life, and in the attempt did much to destroy the institutions
and spirit of civil society. There are echoes here of Hegelian and Marxist
thought. In those doctrines civil society is roughly equivalent to modern
economic life, driven by self-interest, sustained by rights in property,
advanced by corporate organization. Nowadays the idea is extended to
include other autonomous or semi-autonomous spheres of social life. In a
flourishing civil society private life--life not sustained or controlled
by government--is the chief source of order and well-being. Furthermore,
civil society is a reservoir of reserved rights, which limit the authority
of government. Thus civil society is distinct from government, and a brake
on government, Yet there is a paradox, because civil society is sustained
by law and is even, in some respects, constituted by law. 

     Since the seventeenth century we have known that the containment of
despotism requires a counterposition of state and society. This was
already implicit in the English common law tradition. When common-law
judges invoked social experience and necessity, especially the security of
transactions and of property interests, they implicitly postulated rights
against the state. The common law was taken to be continuous with the
community's traditions and institutions. Nevertheless, the law is part of
government. Therefore the counterposition of state and society cannot be
absolute. The idea of civil society, which includes the rule of law, or
something like it, points to the continuity of state and society. In that
conception, and in social reality as well, the rule of law mediates the
relation between state and society. Therefore sociologists should not
accept an easy identification of law and the state. In important ways
civil society detaches law from the state. 

     Finally we may ask: who owes fidelity to law? On a narrow view of the
rule of law, this is a virtue we look to in officials. But the model
cannot really be confined in that way. As part of a distinctive legal
culture the rule of law must affect conduct and consciousness at many
levels. A community committed to the rule of law will be marked by respect
for legitimate authority, and it will accept obedience to law as a moral
obligation. That obligation is limited, to be sure, yet it must be
accepted as a prima facie guide to conduct. 

     Thus the rule of law requires a culture of lawfulness, that is, of
routine respect, self-restraint, and deference. Such a culture is undercut
by widespread alienation or deep division. Furthermore, the rule of law
requires public confidence in its premises as well as in its virtues. The
premises include a dim but powerful understanding that positive law is
always subject to correction by standards of truth and justice. In a
rule-of-law culture, positive law does not have the last word. 

     The integration of law and society is in tension with, but does not
extinguish, the real but limited autonomy of legal institutions. The rule
of law calls for an independent judiciary, and for a legal process that
has its own integrity, but that does not justify insularity, arrogance, or
indifference to social realities. Much the same may be said of other
institutions -- educational, military, economic, political, medical. Each
requires a certain autonomy, and integration as well.  (For more on
institutional integrity, autonomy, and responlsiveness, see my The Moral
Commonwealth: Social Theory and the Promise of Community, Chapters 12 and
15). 

Philip Selznick

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MUSINGS OF AN IDEALIST ON STUDIES OF LEGAL NEGOTIATIONS

Debra S. Emmelman,  Southern
Connecticut State University


Although primarily addressing Marxist research in the sociology of law,
Joseph Gusfield's comments in a 1970s review of Friedman's "The Legal
System: A Social Science Perspective" still ring true today broadly
regarding research on legal negotiations. According to Professor
Gusfield, this research sheds

    ...a penetrating light on law as a living reality and [makes] us see
the gap between the Ideal...and the actions of judges, police and
attorneys grappling with the existing world of power and prejudice
(:374)...It has corrected a blindness to the realities of the social world
(:381). 

Regardless of the issue being examined, research on legal negotiations
typically finds that the highly principled and idealistic mandates which
characterize our paradigm of justice do not translate into reality.
Instead, social actors who seek redress or serve as gatekeepers to
justice confront situations handled less than adequately (e.g., Farr,
1984; Katz, 1982; O'Barr and Conley, 1985; Ross, 1995; Sarat and
Felstiner, 1986; Ulmer and Kramer, 1996).

     Like Professor Gusfield in 1977, I do not intend or desire to
discount the value of this research. However, I am wondering whether some
of our energies might be better spent rectifying an imbalance. The
preponderance of negative characterizations may lead one to conclude that
it is impossible to achieve justice through negotiation. Perhaps we
should resign ourselves to this. Yet because it is possible to conceive
of justice, it seems plausible that it might be achieved. In fact, some
studies of negotiation (e.g., Emmelman, 1996; Flemming, 1986) conclude
that despite, and indeed perhaps even partly due to, imperfect
situations, at least some of the ideals of justice may be achieved.

     While these latter studies do not suggest that our legal system
operates flawlessly, they do caution not to be too cynical lest we
overlook some important successes and be tempted to "throw out the baby
with the bath water". Accordingly, I wonder if our contributions as legal
sociologists would be greater if we focused more on negotiations which
exemplify the ideals.

     Research dealing with this matter could focus upon a variety of
legal issues negotiated in accordance with the ideals in a variety of
situations. For example, we might consider not only when and how the
rights of poor persons are upheld but also when and how cases concerning
rape, the environment, or affirmative action are successfully negotiated
both in and out of court. Because the negotiations of legal
practitioners, whether in or out of the court system, occur within the
environment created by legislative bodies, we may also want to consider
how legislative issues are successfully negotiated.

     Research which emphasizes negotiations in accordance with legal
ideals might also examine changes in the social conditions frequently
thought to undermine legal ideals in the first place. This could involve
detailing the social processes which have brought about positive changes
in the negotiating behavior of populations previously studied. From the
perspective of interpretive sociology, it could also mean seeking to
understand how changes in social conditions are successffilly managed
through social interaction in all types of arenas. For example, we might
consider how and why certain businesses voluntarily take measures to
prevent and monitor sexual harassment. Perhaps even more critically, we
might also consider how changes in the economic conditions which impede
justice are successfully negotiated both in and out of the courts.

     Other research might consider when and how formally pronounced
ideals of justice actually reflect concepts of those ideals held by such
vulnerable persons as defendants and victims. Sarat and Felstiner (1986),
for example, found that divorce attorneys and their clients use different
vocabularies of motive and view the ideals of justice differently (see
also O'Barr and Conley, 1985). While this dilemma may initially suggest a
problem with conceptualizing legal ideals, it need not do so. Instead, we
may consider when and how the perspectives of vulnerable persons are
consistent with or prevail over legal vocabularies. No matter whose -
attorneys', defendants' or victims' - ideals are emphasized, the emphasis
is on the conduct of negotiations in accordance with legal ideals.

     Inquiries into just legal negotiations may involve studying
populations deemed reputable in their legal behavior prior to conducting
research on them. Examples of such populations might include community
agencies and private or public law firms who have achieved distinction in
their respective regions. Investigation of such populations could, of
course, produce some interesting and enlightening findings on legal
processes. We may discover, for example, not only how equitable
negotiations are managed but also how to create changes which lead to
equitable negotiations elsewhere.

     On the other hand, it is important to point out that such inquiries
need not involve only exceptional populations. Instead, they could entail
simply looking more carefully for indications of, and the causes of
equitable negotiations in more normative populations. By documenting
these positive cases, we may then consider more carefully why some
negotiations are just and others are not, as well as what behaviors may
require modification and what ones are best left alone.

     By suggesting that we focus more on negotiations consistent with
legal ideals I am not also suggesting we overlook inconsistent
negotiations.  Without a doubt, our world is fraught with oppression and
injustice, and to overlook such failures could result in greater
injustice. At the same time, I propose that failing to provide due
attention to legal probity might also result in some grave errors: We may
not only be overlooking important elements of truth, but also important
considerations in the pursuit of justice.


REFERENCES

Emmelman, Debra S. (1996) "Trial by Plea Bargain". 30 Law and Society
Review 335.

Farr, Kathryn Ann (1984) "Administration and Justice," 22 Criminology
291.

Flemming, Roy B. (1986). "Client Games: Defense Attorney Perspectives on
Their Relations with Criminal Clients," 2 American Bar Foundation
Research Journal 253.

Gusfield, Joseph R. (1977) "Power, Justice and Sociological Cynicism". 29
Stanford Law Review 371.

Katz, Jack (1982) Poor People's Lawyers in Transition. New Jersey:
Rutgers University Press. O'Barr, William M. and John H. Conley (1985)
"Litigant Satisfaction versus Legal Adequacy in Small Claims Court". 19
Law and Society Review 661.

Ross, H. Laurence (1995) "Housing Code Enforcement as Law in Action". 17
Law and Social Policy 133.

Sarat, Austin and William L. F. Felstiner (1986) "Law and Strategy in the
Divorce Lawyer's Office", 20 Law and Society Review 93.

Ulmer, Jeffery T. and John H. Kramer (1996) "Court Communities Under
Sentencing Guidelines: Dilemma of Formal Rationality and Sentencing
Disparity." 34 Criminology 383.

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PUBLICATION NOTES

By Mary Pat Baumgartner


David H. Lempert has recently published three works of interest to section
members.  Daily Lives in a Crumbling Empire: The Absorption of Russia into
the World Economy is a comprehensive ethnography of urban Russia that
devotes 1200 pages to a consideration of Russian legal culture, legal
education, and the Russian legal profession.  A Model Development Plan:
New Strategies and Perspectives, co-authored with Kim McCarty and Craig
Mitchell, presents an alternative plan for international development
grounded in an empirical study undertaken in Ecuador.  This book includes
a model plan for legal development and legal pluralism.  Finally, Escape
from the Ivory Tower: Student Adventures in Democratic Experiential
Education describes a program for higher education that takes students out
of the classroom and enables them to connect what they learn with issues
in the wider society.  It offers practical ways to improve teaching in the
sociology of law. 

Gary Bellow and Martha Minow have edited a new book, Law Stories, which
brings together a number of papers written by practicing attorneys.  In
these papers, the attorneys provide a participant's perspective on cases
in which they and their clients have been involved.  Among the legal
matters described are ones dealing with juvenile crime, crime victims,
child custody, corporate bankruptcy, welfare, and unemployment.

A dramatic legal case from an earlier historical period is featured in
the book The Burgermeister's Daughter: Scandal in a Sixteenth-Century
German Town, written by historian Steven Ozment.  The book describes an
intense thirty-year legal battle waged by a woman and her estranged
family, and in doing so sheds light on the role of law in the politics of
gender, sexuality, and the family in the late Middle Ages.

Managing Legal Uncertainty: Elite Lawyers and the New Deal, by Ronen
Shamir, examines the role of lawyers at a critical moment in the recent
social and political history of the United States.  It raises important
questions about the involvement of law and the legal profession in the
process of social change.


NOTE: All authors of recent publications in the sociology of law are
encouraged to use AMICI to publicize their work.  Please send information
to Mary Pat Baumgartner at the Department of Sociology, William Patterson
College, Wayne, New Jersey 07470. 

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NEW BOOK

Habermas, Modernity and Law, edited by Mathieu Deflem. London: Sage 1996. 
ISBN 0-7619-5136-9

This collection critically reviews the legal theory of Jurgen Habermas, 
especially his latest contribution in Between Facts and Norms.  With 
chapters ranging from the validity of law to human rights and discourse 
ethics, the authors discuss Habermas' writings and the place of law in 
contemporary social theory.  Habermas himself contributes to the volume 
with a postscript.


Contents:

Mathieu Deflem: Introduction.

David Rasmussen: How is valid law possible?

Pierre Guibentif: The production of law.

Peter Bal: Discourse ethics and human rights.

Bernard Peters: Reconstructive political and legal theory.

Jurgen Habermas: Postscript.

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AMICI is the official newsletter or the Sociology of Law Section of the 
American Sociological Association.


Editorial Office Address:

Robert Kidder
Department of Sociology
Temple University
Philadelphia, PA  19122
FAX: (215) 204-3352
Phone: (215) 204-3121
email: rkidder@nimbus.ocis.temple.edu

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Visit the Sociology of Law Section HOME PAGE at http://www.asanet.org or 
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