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Literature Summary_European Law and Society
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Literature European Law and Society1. Week ....................................................................................................................................... 2
Law and Society- Lynn Mather ............................................................................................................ 2
2. Week ....................................................................................................................................... 5
Even rules, uneven practices- Esther Versluis ...................................................................................... 5
3. Week ....................................................................................................................................... 7
What determines influence? – Irina Michalowitz ................................................................................ 7
Unity and conflict- Adam Chalmers .................................................................................................. 11
4. Week ..................................................................................................................................... 16
Smoke in your eyes – Duina& Kurzer ................................................................................................. 16
5. Week ..................................................................................................................................... 18
Frontline issues of European Union law - Nora Dörrenbächer .......................................................... 18
6. Week ..................................................................................................................................... 23
At the Crossroads of National and European Union Law- Urszula Jaremba ..................................... 23
Why some EU institutions litigate more often than others - Miriam Hartlapp ................................. 29
7. Week ..................................................................................................................................... 33
Eurolegalism and Democracy – Daniel Kelemen ............................................................................... 33
The other face of Eurolegalism - Bastings, Mastenbroek & Versluis ................................................. 34
,1. Week
Law and Society- Lynn Mather
Citation: Mather, Lynn. 'Law and Society', in Robert Goodin (ed.), The Oxford Handbook of Political
Science (2013; Oxford Academic), p.289-304
https://doi.org/10.1093/oxfordhb/9780199604456.013.0015.
Mather discusses the key characteristics of a law and society perspective. Law and society is an
interdisciplinary field of study engaged in empirically investigating law in context. Mather's
contribution provides a global overview of the types of themes, questions and approaches within Law
and society. She briefly presents the contribution of Law and society scholars to three issues: disputing,
judicial decision-making and legal consciousness and the construction of legal meaning.
The study of law and society rests on the belief that legal rules and decisions must be understood in
context. Law is not autonomous, standing outside of the social world, but is deeply embedded within
society. While political scientists recognize the fundamentally political nature of law, the law and
society perspective takes this assumption several steps further by pointing to ways in which law is
socially and historically constructed, how law both reflects and impacts culture, and how inequalities
are reinforced through differential access to, and competence with, legal procedures and institutions.
Law and society scholarship has typically been multidisciplinary or interdisciplinary. Scholars focused
their work on legal processes and individual and group decision-making, with greater focus on theory
and substantive results than on sophistication of the methods or an insistence on the superiority of
any particular method. Normative, policy-relevant concerns for justice and equality are relevant for
the field. As well as comparative approaches to research questions.
The American politics subfield operates quite independently, and scholars infrequently cite across
subfields. By contrast, the law and society field actively seeks connections to the empirical scholarships
on law being done in other countries, connections that are facilitated by LSA networks. Law is in
society. Law is also social, cultural, economic, linguistic, and ideological.
Major Contributions to Law and Society Scholarship
Concentrating on three broad areas of law and society scholarship: disputing; decision-making; and
legal ideology and consciousness.
Disputing
Both criminal and civil conflicts in the U.S. fill out a pyramid with vast numbers of grievances or injuries
at the bottom, a smaller number that become disputes, even fewer that contain some kind of informal
recourse to law, an even smaller number with two-party legal activity, and only a tiny fraction resolved
by trial. Different types of civil grievances re more likely than other to reach higher on the pyramid of
legal actions. There are multiple ways in which those experienced in legal procedures are advantaged
in the legal process. Disparities in the legal profession further exacerbated the advantages of the
repeat players.
The differential use of formal vs. informal mechanisms for dispute settlement by repeat players and
one-shooters shows that, parties who are more familiar with legal processes know when to settle out
of court and when to press on to formal trial. Another way in which disputing can be linked to change
in law is through the expansion or reframing of a dispute into a new normative framework. Legal cases
are not objective events, but are socially constructed to reflect the interests of supporters of
disputants, to appeal to a particular audience, and to incorporate the values and language of law. The
language of law is inherently political, ordering facts and invoking norms to support one set of interests
S e i t e 2 | 37
,or another. . A victory in litigation, even if later reversed on appeal, can aid in agenda setting and serve
as a catalyst for further change.
The linkage among litigation, political order, and political change also emerges in empirical research
on the use of courts over time. Filing disputes in court should be seen as an alternative to traditional
forms of political participation. Courts are institutions of the state and as such, they can and do exercise
power to shape the nature and amount of litigation.
Decision-making
Those in law and society broadened the terrain of decision-making in several ways. They examined
decision-making by judges at all levels of court including nonlawyer judges on justice of the peace
courts, those on small claims courts, misdemeanor and felony courts, civil courts, and occasionally
appellate courts. Research revealed differences in sentencing severity across courts and in patterns of
judicial interaction with prosecutors. There is a clear evidence of significant race effects in judicial
decisions in state and federal courts.
Second, recognizing that over 95 percent of trial court cases settle through plea negotiations or
settlement talks, without trial, sociolegal researchers examined decision-making by lawyers. Plea
bargaining would benefit from reexamination in order to see how legal changes on sentencing and jury
selection, demographic changes in lower court personnel, increased punitiveness in the cultural and
political climate, and the impact of federal antiimmigration measures on local officials, have affected
the processes of negotiation in criminal courts. Lawyers in civil cases also play important roles in
dispute settlement and in the production of law. The significant differences in lawyers is in two
hemispheres of the legal profession: lawyers who represent organizations or corporate entities and
those who represent individual clients.
Sociolegal scholars broadened their scope beyond judges, juries, and lawyers to include the work of
less visible legal actors such as court clerks, health and safety inspection officers, immigration officials,
probation officers and police. Every decision of a low-level legal official helps to shape a pattern of law
interpretation and enforcement, and to construct ideas about law for the public they encounter.
Even further, law and society researchers have explored the decisions and work of private actors.
Political scientists studying the legislative process are accustomed to paying close attention to the role
of private interest groups in lawmaking and administrative enforcement and have developed theories
of specialized influence. Similarly, law and courts scholars should build on the empirical work on private
ordering to better understand connections between powerful private interests and law.
Legal Ideology and Consciousness
Is a third major area of law and society scholarships. Decisions within the law have a direct effect of
their actions on people’s lives. From an ideological perspective the meaning conveyed by those
decisions is important. What values reside in the categories of “suspicious” and “not suspicious” and
how are they conveyed in each encounter? Law and society research reminds us that law is constructed
through such categories for classification. Focus on legal ideology looks at the categories of law and
how they are used, in order to reveal the process by which legal meaning is constructed. While political
scientists readily acknowledge the ideology of constitutional constructs, law and society scholars
analyze the narratives, taken for granted assumptions, and values in other areas of law.
Interest groups on different legal issues battle for the hearts and minds of jurors and the public. In
addition to the newspapers’ images of legal issues or cases, television provide ample material for the
cultural production of law. Prosecutors worry that avid watchers of CSI, when asked to serve on a jury,
are more reluctant to convict unless there is scientific evidence. Studies of legal consciousness explore
how people’s experiences and understandings of law translate into actions and how social action in
S e i t e 3 | 37
, turn constitutes their relation to law. Scholars of law and politics find intriguing material to integrate
with research on political participation, framing of issues, critical race theory, or feminist
jurisprudence.
Other Areas of Law and Society Scholarship
Regulation and Compliance
Studies of regulation and compliance have been a mainstay of law and society scholarship. Law and
discretion have a criticist distinction. Law, it is argued, is constituted by the discretionary decisions that
give it meaning. Similarly, the notion of law as purely governmental regulation breaks down entirely.
Legal History
The notion of law and society as mutually constitutive emerges clearly in much of the sociolegal
historical scholarship, and especially in work on race and the law. There is the question if law is simply
lagging behind society. No, the lag to some was simply vested interests claiming their power. The old
tort doctrine lasted as long as it did because there was no stable compromise behind its replacement.
Many similar legal changes would benefit from reexamination, this could bring a new understanding
of the political context and finding important overlooked areas in law.
Procedural Justice
Applying the philosophical distinction between procedural and substantive justice to the legal system,
psychologists hypothesized that providing fair and transparent court procedures would result in
greater satisfaction and compliance regardless of the substantive outcome of their case.
Recent Developments
Although the law and society field lacks clear boundaries to separate its interdisciplinary perspective
from the other disciplines, it has significantly aided our understanding of law and politics through the
various areas of research discussed here.
1. Look beyond appellate courts. Law and society work on international disputing through
arbitration and on the international Tuna Court show the potential for integrating norms,
disputing and law. Numerous other regional and international bodies could be studied as well
to help us understand processes of law and globalization.
2. Broaden the range of legal actors to study beyond judges and beyond the arena of public law
and integrate studies of the legal profession. By combining the specialization of the bar with
the sorting process of legal education that shapes the class, race, and gender of who enters in
corporate law, one might gain new understanding of the outcomes in different legal areas.
3. Examine how people use courts, harking back to a view of litigation as a form of political
participation. Integrate other perspectives with knowledge of legal institutions and processes.
Examine tests to see how changed conditions have altered the strategies of interest groups.
4. Popular culture involves framing problems, events, and people. Law is increasingly seen as a set
of visual images in popular culture.
In sum, the field of law and society continues to develop in response to new research questions and
new scholars. Political scientists contribute to, and learn from, this interdisciplinary approach to law
and politics.
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