Law & Society Review 48(4)

Law & Society Review, December 2014: Volume 48, Issue 4

The Humdrum of Legality and the Ordering of an Ethic of Care
Prashan Ranasinghe

This paper provides an ethnographic analysis of the ways that employees of an emergency shelter create and maintain order. The paper applies the framework of legal consciousness to explicate the practices of the employees that amount to “private ordering.” The employees administer the rules of the shelter in the context of an “ethic of care,” but one that is outside the purview of formal law. This ethic, however, is polysemic, and the employees, therefore, must adopt diverse styles based on their understandings of their professional roles regarding the needs of the clients. The practices of two employees are highlighted in detail, whose strategies in applying and maintaining adherence to shelter rules are at the opposite ends of the spectrum. Both make decisions in a somewhat spontaneous and, more importantly, inconsistent, fashion. Despite the complications that arise from applying the rules as such, the employees tolerate, even laud and celebrate, these methods. While this system of private ordering has little resemblance to the ordered, consistent, and rigid application of formal law, it allows the employees to administer diverse strategies of ethics of care and shape practices to fit their professional roles and the complex exigencies of an emergency shelter. The paper locates the extant private ordering not in the law, nor in its shadow—assumed to be preconditions—but outside or beyond them. Given that this ordering is founded against the law—it is not law, nor law-like and has no desire to so be—the paper suggests that it can be thought of as private ordering proper and lays the framework for theorization that accounts for its instrumental and symbolic dimensions.

Trapped in Resistance: Collective Struggle through Welfare Fraud in Israel
Shiri Regev-Messalem

This paper offers a qualitative empirical examination of the noncompliance of Israeli female welfare recipients with welfare laws and authorities. The paper demonstrates that their behavior, defined as “welfare fraud” by the law, is a limited form of collective resistance to the Israeli welfare state. Although the acts of welfare fraud that the women in my study engaged in entail a political claim against the state, the relationship between these acts and notions of collectivity is very constricted in form. The women's collectivity is shown to be constrained by the welfare authorities' invasive and pervasive investigation practices and methods. Due to fear of disclosure to the authorities, the women emerged as deliberately isolating themselves from their immediate environment and potential members of their like-situated collective. This weakens the connection between the women's acts of resistance and their collectivity, and prevents their acts of resistance from driving social change, trapping them in their harsh conditions and existence.

The Loss of Property Rights and the Construction of Legal Consciousness in Early Socialist Romania (1950–1965)
Mihaela Şerban

What happens to legal and rights consciousness when rights previously protected are taken away? In this article, I investigate the process of contesting urban housing nationalization in Romania in the early 1950s in order to understand how the loss of property rights led to new hybrid types of legal consciousness. I find that the construction of socialist legal consciousness was grounded in the interaction between the legally constituted selves of former owners and state bureaucrats who drew from distinct legal and property rights ideologies. This process underscores continuities in legal consciousness even under drastic regime changes, which in turn has implications for the construction of new hegemonic legalities and power regimes. The article is based on extensive document and archival research.

Justice, Context, and Violence: Law Enforcement Officers on Why They Torture
Rachel Wahl

How do police explain their support for torture? Findings from 12 months of fieldwork with police in India complicate previous researchers’ claims that violence workers tend to morally disengage and blame circumstances for their actions. The officers in this study engage in moral reflection on torture, drawing on their beliefs about human nature and justice to explain their support for it. They admit that they use torture more widely than their own conceptions of justice allow, but see this as an imperfect implementation of their principles rather than as a violation of them. Previous research on the spread of human rights norms has focused on how these norms can be adapted to the local beliefs that support them, rather than on understanding the beliefs that conflict with human rights. I argue that illuminating the self-understanding of state actors who support or engage in torture is crucial to building theory on why such violence occurs, as well as to designing interventions to prevent it.

Losing, but Accepting: Legitimacy, Positivity Theory, and the Symbols of Judicial Authority
James L. Gibson, Milton Lodge and Benjamin Woodson

How is it that the U.S. Supreme Court is capable of getting most citizens to accept rulings with which they disagree? This analysis addresses the role of the symbols of judicial authority and legitimacy—the robe, the gavel, the cathedral-like court building—in contributing to this willingness of ordinary people to acquiesce to disagreeable court decisions. Using an experimental design and a nationally representative sample, we show that exposure to judicial symbols (1) strengthens the link between institutional support and acquiescence among those with relatively low prior awareness of the Supreme Court, (2) has differing effects depending upon levels of preexisting institutional support, and (3) severs the link between disappointment with a disagreeable Court decision and willingness to challenge the ruling. Since symbols influence citizens in ways that reinforce the legitimacy of courts, the connection between institutional attitudes and acquiescence posited by Legitimacy Theory is both supported and explained.

Enforcing Desegregation: A Case Study of Federal District Court Power and Social Change in Macon County Alabama
Brian K. Landsberg

This case study of Lee v. Macon County Board of Education demonstrates that a federal district court in Alabama, enforcing Brown v. Board of Education, brought about significant social change despite constraints on the courts. The court's application of Brown played a decisive role in ending the racial caste system in this Alabama Black Belt county. The court, by adding the U.S. Department of Justice as a party, overcame constraints that had precluded the executive branch from pursuing school desegregation. Change came through the courts before Congress legislated against school segregation. Seekers of social change must evaluate the constraints on the courts relative to the constraints on the other branches and levels of government.

Scientizing Food Safety: Resistance, Acquiescence, and Localization in India
Jessica Epstein

Since the mid-1990s, formal scientific risk management has been codified at all levels of food safety governance in affluent states: firm-level standards, national regulation, and international law. Developing countries' access to affluent importers and power in international standard-setting fora now hinges on their scientific capacity. This article explores the consequences of these developments in India, which moved quickly from resistance to acquiescence, and then later to mobilization around narratives of scientific risk management's local benefits. The case suggests a two-stage model of scientization among developing countries: (1) coercive and competitive mechanisms drive adoption of science-based governance models, and (2) as local actors mobilize to meet foreign demands, they attach their own interests and agendas to science-based reforms. The outcome is a set of rational myths about the benefits of scientization. The article draws on content analysis of organizational, policy, and news documents and a small set of interviews with highly placed pubic officials and industry representatives.

The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions
Alicia Uribe, James F. Spriggs II and Thomas G. Hansford

Studies of Court–Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation-of-powers models of Court–Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.

Public Perceptions of the Legitimacy of the Law and Legal Authorities: Evidence from the Caribbean
Devon Johnson, Edward R. Maguire and Joseph B. Kuhns

Research on procedural justice and legitimacy has expanded greatly across the social sciences in recent years. The process-based model of regulation, which links people's assessments of procedural justice and legitimacy to their compliance with the law and legal authorities, has become particularly influential in criminology and sociolegal studies. A review of the previous research on perceived legitimacy highlights two important features. First, legitimacy has been conceptualized and measured in many different ways. Second, most of the research on legitimacy has focused on only a handful of developed nations. Using survey data from Trinidad and Tobago, this article examines the conceptualization and measurement of the perceived legitimacy of the law and legal authorities. The findings indicate that some of the prominent conceptual and measurement models used in previous research are not empirically valid in the Trinidadian context. The implications of the results for conceptualization, theory, and future research are discussed.