This essay reflects on contemporary justifications for the grading of crimes, especially the conception that the gravity of crimes is rooted in “desert,” understood to depend particularly on the offender's state of mind and to a lesser extent on the harm done or threatened to society.

Drawing on Dante's Inferno, the essay shows how the gravity of crimes is socially constructed. For reasons rooted in the sociopolitical forces, as well as the philosophy and law of his day, Dante found the crimes most deserving of punishment to be those of betrayal of trust. He conceived such crimes to be the most deliberate and to do the most damage to the social fabric. Contemporary law has found that crimes of betrayal are generally less deserving of punishment than crimes of violence; the essay shows how social and historical forces, including even the traditions upon which Dante drew, have shaped this choice. In the course of grading crimes in this way, the law has altered its conceptions of “intent” as well as of harm to society so radically that the notion of “desert” has lost much of its coherence. The importance of trust in modern society, moreover, has been misunderstood in the contemporary grading of crimes.

This paper compares dispute-resolution behavior at a large coal mine in South Wales at two times: when the mine was run as a conventional, hierarchical organization by British Coal and, several years later, when it was bought out by the employees and converted into a worker cooperative. Synthesizing themes from law and society, organizational theory, and alternative dispute resolution (ADR) research, I demonstrate how shared ownership, flattened hierarchy, and cooperative ideology impact on disputing behavior. By changing from a hierarchical organization to a worker cooperative, the coal mine increased is level of procedural justice and transformed its dispute-resolution behavior to rely much more on informal resolution. Using qualitative methods, this research draws on 42 in-depth open interviews with miners and managers.

The essay evaluates the general problem that, while most modern republican constitutions follow the U.S. and French models in declaring religious freedom, absolute religious freedom is impossible and undesirable. How are religious freedoms constrained, and how much should they be? The essay evaluates the strategies by which limitations on freedoms of religion are constructed and imposed, especially the powerful isomorphism of law and science described by Boaventura de Sousa Santos. Taking the example of Afro-Brazilian religions in relation to the Brazilian state since 1890, post-emancipation, the essay argues that pseudo-scientific discourses of “public health” constrained the religious practice of former slaves, thus allowing the trompel'oeil of religious freedom to continue in the new republic, even as freedoms were in fact constrained by the state.

The extent and nature of lawyers' participation in civic life probably has important effects on the character of the community's activity and its outcomes. Where and how lawyers participate in voluntary associations may influence the ability of those organizations to function within the larger structure of American institutions.

This paper compares findings from two surveys of Chicago lawyers, the first conducted in 1975 and the second in 1994-95. Contrary to some expectations, the available evidence does not suggest that community activities of lawyers decreased. Moreover, lawyers' energies in 1995 appear to have been devoted more often to socially concerned organizations, those with a reformist agenda, than had been the case in 1975. The types of organizations with the greatest increase in activity were religious and civic associations. A smaller percentage of the respondents held leadership positions in 1995 than in 1975, but, because of a doubling in the number of lawyers, the best estimate is that the bar's absolute level of contribution to community leadership did not change greatly.

In both 1975 and 1995, a hierarchy of social prestige appears to have influenced the pattern of lawyers' community activities. Lawyers who had higher incomes, were middle-aged, were Protestants, and who had attended elite law schools were more likely to be active or leaders in most kinds of organizations. In ethnic and fraternal organizations, however, the elites of the profession had relatively low rates of participation, while government lawyers, solo practitioners, and graduates of less prestigious law schools predominated. Status hierarchies within the broader community—as well as social differences in taste, preference, or “culture”—clearly penetrate the bar.

Although scholars have devoted considerable attention to the formation, modification, and dissemination of knowledges in and around the legal complex, few systematic inquiries have been made into the sociology of legal knowledges. In this paper, we focus on two areas of law–liquor licensing and drunk driving–and contextualize their development from the perspective of police science. We document the ways in which contemporary police science authorizes a “common knowledge,” which is not to be confused with lay knowledge, or even trade knowledge. Rather, the “common knowledge” that is authorized is what legal authorities believe everyone should know, despite any lay or trade knowledge individuals may have. This analysis demonstrates the need for further work on the ways in which knowledges are formed and authorized within law, with particular emphasis on documenting how a “responsibility to know” comes to be deployed beyond the state.

This essay investigates the first century of English colonization of the North American mainland, concentrating on the charters and letters patent that proponents of western planning secured over the course of the century. The elaborated legalities of chartering should be understood as a technology of planning and design. Charters allowed projectors both to justify their pursuit of particular territorial claims and to establish, with some precision, the conceptions of the appropriate, familiar, desired order of things and people that would be imposed onto uncharted social and physical circumstance.

The structures of authoritative sociolegal order planned by projectors encountered others implicit in the migrations of actual settlers. Investigating settlers' disagreement with and departure from projectors' designs, the essay discards common explanations—that these were inevitable corrections brought about by the intrusion of local environmental realities on English projectors' fantasies, or the realization of an implicit evolutionary logic of political development, or of legal reception. It argues that disagreements were more often the result of a collision of distinct English legal cultures brought, by migration, into an unavoidable proximity.

The essay counterposes the paradigm of “colonization” to both “common law reception” and “bottom-up localism” analyses of the formation of early American legal culture. It proposes that “colonization” also resolves the discontinuity between early (colonial) and later (U.S.) American history.

First Amendment absolutists and proponents of speech regulation are locked in a normative stalemate over the best way to diminish racial “hate speech.” I argue that this stalemate can be overcome by considering a more expansive theory of the “force of words” and the risks the right of free speech entails for individuals. Drawing on a cultural theory of symbolic power, I discuss the merits and limitations of two recent texts which redefine hate speech as discriminatory conduct. As an alternative to this strategy, I develop an analytical framework for describing the social risks the right of free speech entails, and propose juridical and deliberative-democratic remedies that might redistribute and attenuate these risks. Cultural and legal theory can find common ground in the analysis of the undemocratic effects of symbolic power. Such common ground can be achieved if legal theorists consider the force of words as a problem for democracy and if cultural theorists consider the resources provided by democratic institutions and practices for the redistribution of the social risks of speech.

Jurisdictional fluidity was a central feature of early modem Iberian law, and jurisdictional tensions were exacerbated by overseas conquest and colonization. Contests over the legal status of conquered peoples featured both jurisdictional jockeying among colonial factions and widespread preoccupation with the symbols and rituals marking cultural and legal difference. This article examines the dynamics of jurisdictional politics in seventeenth-century New Mexico, where church and state officials carried on a bitter feud over legal authority during most of the century. Rather than viewing this contest as either transparently political or a mask for deeper processes defining hegemony, the article argues that seemingly dry legal distinctions were the focus of passionate and persistent struggle precisely because they merged institutional and cultural concerns of missionaries, settler elites, and Indians. The analysis leads to broader, more speculative claims about the role of jurisdictional fluidity in creating an “orderly disorder” that spanned diverse regions within Spanish America and, more broadly, across colonial regimes in the early modern world.

This article is about legal mobilization by claimant groups seeking left-liberal reform in the United States. Drawing on a growing body of work in political science and legal studies, it takes an interpretive, legal-mobilization approach to one litigation-based reform effort: school finance litigation and education reform in Kentucky. In turn, this case study provides leverage for theorizing about legal mobilization and the role of law and courts in social reform. The article argues that current theoretical approaches either overlook or neglect the implications of important dimensions of legal mobilization by would-be reformers. Specifically, it highlights and explicates the meaning of two related themes: (1) legal translation, taken up here as legal framing and legal construction, and (2) the degree of coherence or fit between the legal and political components of reform projects that include both legal mobilization and extrajudicial strategies and tactics. This article suggests that the “degree of coherence” may have an important but underappreciated relationship to the overall success or failure of such reform projects.

This article examines a criminal trial in Brazil that touched on the imagined role of religion in public life. The case involved a Protestant minister accused of religious discrimination and of vilipending an image of Nossa Senhora Aparecida, the patron saint of Brazil. The prosecution argued and the court concurred that the minister's iconoclastic verbal and physical gestures endangered the constitutional guarantee of religious freedom. Yet the defense claimed that his actions, stemming from his religious convictions, expressed this same principle of freedom. Different visions of religious free-dom are at stake in the case as well as how such freedom relates to the rights and private lives of citizens. Placed in the history of church-state relations in Brazil, the case raises the problem of interpreting concepts of religious pluralism, religious freedom, and freedom of expression in Brazilian law.

By juxtaposing religious, legal, and victims'accounts of political violence, this essay identifies and critiques assumptions about agency, the individual, and the state that derive from liberal theory and that underlie U.S. asylum law. In the United States, asylum is available to aliens whose gooernments fail to protect them from persecution on the basis of their race, religion, political opinion, nationality, or social group membership. Salvadoran and Guatemalan immigrants have challenged this definition of persecution with their two-decade-long struggle for asylum in the United States. During the 1980s, U.S. religious advocates and solidarity workers took legal action on behalf of what they characterized as victims of oppression in Central America. The asylum claims narrated by the beneficiaries of these legal efforts suggest that repessiwe pactices rendered entire populations politically suspect. To prevail in immigration court, however, victims had to prove that they were individually targeted because of being somehow “different” from the population at large. In other words, to obtain asylum, persecution victims had to explain how and why their actions had placed them at risk, even though persecution obscured the reasons that particular individuals were targeted and thus rendered all politically suspect.

This article investigates the effects of the National Environmental Policy Act of 1969 in structuring an encounter over a decision about building a dam in central Arizona. From the vantage point of three groups with deep-investments in the outcome of this decision, it analyzes how the interests and identities of these parties were transformed as a result of this encounter. In defining standing and the terms of relevance, in providing a political forum, and in requiring these groups to explain themselves to others, this law powerfully mediated the politics surrounding this controversial decision.

The transition from state socialism toward market capitalism has led to an almost endless supply of new laws and legal institutions. Industrial enterprises need to adapt to this new institutional regime. In-house lawyers are well placed to be agents of change in facilitating this adjustment. Using survey data from 328 Russian enterprises, the article examines the role of company lawyers, asking whether they have fulfilled this potential. Legal expertise is not in short supply, but lawyers are marginalized within the enterprise. They focus on established, routine tasks, such as handling labor relations or drafting form contracts, rather than on shaping enterprise strategies in the newer areas created by the transition, such as corporate governance or securities law. The failure of in-house lawyers to emerge as agents of change in Russia reflects a continuation of their low status during the Soviet era and the lack of professional identity among these company lawyers.

This paper examines a particular episode in the history of British imperialism in India: the appointment of the Indian Hemp Drug Commission in 1893. We analyze the way a quasi-judicial investigation into the consumption of drugs was differently conceived and executed as a civilizing mission by, on the one hand, British colonizers, and, on the other hand, an aspiring colonized elite. By bringing together the ideological dimensions of a civilizing mission (e.g., the reliance on scientific knowledge, groper procedures, legal techniques) with its social ones (e.g., collaboration between colonizers and a local elite), we show how the very notion of a civilizing mission became a site of struggle over meaning, identity, and desirable forms of governance. The analysis reveals a local elite struggling to position itself at once on a par with British criteria of scientific competence and yet not as a mere proxy for British interests; at once able to articulate itself in terms of enlightenment concepts such as reason and modernity and yet celebrating its own distinct cultural authenticity.

Over cups of chai, a conversation between U.S. law professors and Tibetan exiles about the formation of a new democratic Tibetan government under the Dalai Lama goes awry. This article investigates why the misunderstandings occurred by presenting the context of the Tibetan and U. S. concepts of sacredness and secularity. The former Tibetan government and legal system are explained in some derail as well as the Tibetan wiew of the sacred and secular spheres in society. The deistic origins of the U.S. Constitution and the pervasive religious cosmology of the Framers are then described. These two similar positions are contrasted with the current modern and postmodern positions of an all-encompassing secular sphere that defines and contains religion. The author argues that “sacred” and “secular” have changed positions, with secularity now having an unmarked positive value and being viewed by U.S. law professors as a necessity for a democratic political and legal system. As the conversation with the Tibetans demonstrates, the richness and power of an integrated sacred perspective is difficult to comprehend from a hegemonic secular public space. Reformulating this “inarticulate debate” will be necessary for a coherent conversation to take place.