Toward A Renewed Sociological Jurisprudence: From Roscoe Pound to Herbert Blumer and Beyond

This article, based on the Distinguished Lecture presented on August 21, 2001, at the annual meeting of the Society for the Study of Symbolic Interaction in Anaheim, California, proposes a synthesis of Herbert Blumer's macrosociological perspective on the race question with Roscoe Pound's philosophy and science of law (i.e., his so‐called sociological jurisprudence), Joseph Tussman's and Jacobus tenBroek's juridical methodology, and Philip Selznick's sociology of responsive law. The compound so produced will help to establish a foundation for a praxiological sociology of American constitutional law. The article focuses on the problem of legislative‐made “classifications” and their relations to the legitimate public purposes entailed in the enactment of statutes, laws, and decrees. Such classifications become problematic when they are said to be “underinclusive,” “over‐inclusive,” or both in seeking to effect their aims. Strategic research sites for this issue are racial and ethnic classifications that single out one or a limited cluster of racial or ethnic groups for special benefits (“affirmative action”) or restitution (“reparations”). Calling for a reinvigoration of Pound's pragmatic approach to sociological jurisprudence, I show how Blumer's analysis of the “color line”—when seen in relation to the original intent of the makers of the Thirteenth, Fourteenth, and Fifteenth post‐Civil War Amendments to the U.S. Constitution and, using Tussman's and tenBroek's showing of how such categorizations might be both methodically evaluated and applied to the challenged classifications—provides grounds for reconsidering whether the latter are instances of “reverse discrimination” and, hence, violations of the constitutional requirement of “equal protection of the law.” The science of law is a science of social engineering having to do with that part of the whole field which may be achieved by the ordering of human relations through the action of politically organized society. —Roscoe Pound, Justice According to Law We did not hold it necessary to wait for nature to put a canal across the Isthmus of Panama, and we shall not much longer hold it necessary to wait for nature to dig the legal canals that will give security to neglected human interests which clamor for recognition and protection. —Roscoe Pound, “Juristic Problems of National Progress”     

Stabilizing flows in the legal field: illusions of permanence,intellectual property rights and the transnationalization of law

In this article I examine some of the problems that ‘modern’ legal theory poses for a consideration of the extended reach of social actors and institutions in time and space. While jurisprudence has begun to engage with the concept of globalization, it has done so in a relatively limited manner. Thus legal theory's encounters with highly visible transnational practices have, for the most part, resulted not in challenging the prevailing formal legal paradigm, but in a renewed if slightly modified search for a general jurisprudence that ultimately takes little account of the manner in which the work of law is carried out transnationally. In the first part of this article I examine how legal theory's concern to maintain its own integrity places limitations on its ability to examine the permeability of social boundaries. In the latter part I draw on critical human geography, post–structuralism and actor–network theory (ANT), to examine the manner in which transnational actors have been able to mobilize law, and in particular intellectual property rights (IPRs), as a necessary strategy for both maintaining the meanings of bio–technologies through time and space, and enrolling farmers into particular social networks.     

Sexual orientation and the European Convention on Human Rights: What of the “L” in LGBT?

Abstract

The European Court of Human Rights (ECtHR) has long been celebrated for its role in advancing LGBT rights. This article adopts an intersectional feminist approach in order to critically examine the trajectory of the Court’s LGBT case-law from a gendered perspective. In doing so, it foregrounds the portrayal, experience and, indeed, invisibility of lesbian applicants. Adopting an intersectional approach that considers the gender dimension of sexual orientation claims provides a somewhat different perspective on the struggle for LGBT rights before the ECtHR and suggests that lesbian voices and experiences have been marginalized and excluded in the struggle for LGBT rights.     

Michel Maffesoli's sociology of modernity and postmodernity: an introduction and critical assessment

This article introduces and criticises Michel Maffesoli's attempt to formulate a post-modern sociology for post-modern times. While arguing that Maffesoli's sociology is suggestive and insightful about many aspects and features of late-modern life this article, nonetheless, questions whether Maffesoli's approach should be accepted as a fruitful sociological paradigm which others should take up uncritically. Moreover, it will be argued that Maffesoli's approach is an ultimately incoherent and one-sided approach to studying the ‘postmodern condition’ in that it does not escape the problem of ‘performative contradiction’ identified by the likes of Habermas, Giddens and Touraine. That is to say, Maffesoli has produced a one-sided and flattened out image of modernity that cannot account for the possibility of social and political critique.     

WORKING WITH PIERRE BOURDIEU IN THE TOURISM FIELD MAKING A CASE FOR ‘THIRD WORLD’ TOURISM

Tourism in the ‘third world’ is seen as a consumption of culture, and attempts at investigating it within a cultural studies framework have not adequately addressed key social and cultural aspects. Bourdieu's analytical legacy which is significant as a cultural legacy is largely misappropriated. This article, reviewing recent research in cultural studies in tourism, highlights and critically interrogates the treatment Bourdieu's theory has received in tourism studies. Arguing that Bourdieu's sociological framework is often misinterpreted, this article sketches out the key components of a Bourdieusian approach to a cultural analysis of tourism. Reflexive return in tourism research remains largely unexplored. This conceptual paper emphasizes the significance of working with Bourdieusian methodological approach and explores the possibilities of employing a reflexive sociology in tourism studies. The paper further highlights the difficulties of pursuing such a theoretical approach and proposes the need to accommodate recent theoretical and empirical challenges to Bourdieu's paradigm.     

Law and Older People—The Rise and Fall of Israel's Senior Citizens' Act

Within the broad and complex framework of those Israeli laws that relate to the social welfare of the older population, this article uses a case study approach to focus on Israel's Senior Citizens' Act of 1989. During its hitherto brief life, this law has undergone numerous transformations, additions, and deletions as well as successes and failures. At the time of its enactment, many hoped that this law would considerably bolster the rights of older people. Echoing legal and political theories of the 1980s, it seemed to reflect the fact that politicians were sensitive to the potential power of the pensioner vote, while echoing the approach to social engineering that advocated the use of the law both as a means for social change and a symbol of power. As of today, however, this article argues that the law has failed to realize what were declared to be its objectives. Instead of promoting social change and providing older people with political power, the Senior Citizens' Act has become an empty symbol that hides the fact that the older generation in Israel still lacks the real political power it needs in order to use the law to improve society's treatment of older people.     

Webster v. Reproductive Health Services:

This article analyzes the constitutional significance of Webster v. Reproductive Health Services (1989). The decision of the U.S. Supreme Court has two prominent features. First, the Court upheld the restrictions on the right of women to abort by devaluing the provisions of the challenged Missouri law. It is suggested that these provisions are far more significant than the Court majority acknowledged, and that their significance became apparent soon after the Court's resolution of the case. Second, the Court's approach to resolving Webster suggests a reconceptualizing of fundamental rights questions wherein state action jurisprudence has been turned upside down and compelling state interest analysis has been eschewed. While Roe v. Wade (1973) was not overruled in Webster, it appears that the contemporary Court's approach to operationalizing the right of choice is unlikely to restrict the power of the states to regulate in this area.     

Sociology and Human Rights in the Post‐Development Era

This article explores the dilemmas of the sociology of human rights – a growing field of academic research. Sociologists are increasingly conceptualizing poverty, global economic inequality, and social inequalities of race, class, gender, and sexual orientation not as social problems, but rather as human rights abuses. The shift of emphasis from the social problems perspective to the human rights perspective demands a different set of remedies from IGOs, national governments, and local authorities. Whereas in the past sociologists tended either to recommend modifications to social policies or to propose large‐scale social transformation, they now find themselves advocating the implementation of human rights on the global, national, and local levels. This has brought sociologists into the area of global governance. The process of delineating an explicitly sociological perspective on human rights is impeded by two overlapping dilemmas: (1) the tension between an approach that emphasizes the analysis of ‘rights effects’ on the global, national, and local levels and an approach that stresses the advocacy of rights as a palliative for social inequalities; and (2) the tension between an interdisciplinary vision, in which sociology would join other disciplines in illuminating human rights and a unidisciplinary vision, in which sociologists and their allies would push for a unified social science founded on human rights.     

Language,structure and agency: What can realist social theory offer to sociolinguistics?

The sociolinguistic enterprise raises fundamental questions about the nature of the relationships between social phenomena (such as social class or gender) and linguistic variation, while within social theory a persistent concern is the nature of the relationship between structure and agency. Sociolinguistics can draw on social theory for analysis of the relationship between speaker and system, the role of language in the creation, maintenance and change of social institutions, and the role of human agency in sociolinguistic phenomena. This article summarises the key tenets of a sociological realism, based on the recent work of Margaret Archer (in particular her exploration of analytical dualism) and of Derek Layder (specifically his theory of ‘social domains’). It relates these ideas to sociolinguistics, arguing that language can be seen to have a different significance, depending on which domain is the focus of the researcher's interest. The article considers the distinctiveness of this approach, contrasting it with structuralist and social constructionist accounts and with structuration. It concludes by identifying some methodological implications, suggesting that sociological realism offers a productive theoretical framework for sociolinguistics in dealing with questions of language, structure and agency.     

Queering reproductive justice: Framing reproduction of gay men from a transnational perspective—Taiwan as a case

This article uses Taiwan as an example to argue that reproductive justice for gay men should be conceptualised within social, legal, and political contexts. Taiwan is the first Asian country to legalise same-sex marriage, yet the law favours heterosexual couples and denies LGBTQ+ reproductive rights. Thus, Taiwanese gay men seek third-party reproduction overseas to become parents. This article exemplifies gay men's unequal conditions from a non-Western perspective. I re-examine scholarly literature on the interlocking concepts of reproductive justice, stratified reproduction, and queer reproduction to answer what reproductive justice gay men need and how their injustice position situates within and beyond the nation-state borders. Drawing on the reproductive justice framework and studies of queer reproduction, this article proposes a transnational perspective to understand queer reproductive justice through the case that elucidates the specific context of Taiwanese gay men. This article aims to make two contributions. Firstly, it reconsiders the reproductive framework from a transnational perspective to argue that gay men's reproductive justice should be conceptualised at the intersection with other dimensions of injustice. Secondly, this article suggests that the transnational approach could be applied as a critical lens for future research in queer reproduction and reproductive justice.     

‘Bringing coals to Newcastle’? Human rights,civil rights and social movements in New York City

In this article we examine the encounter between global human rights ideas and domestic discourses of civil rights and social justice, focusing on processes of translation and adaptation of women's human rights in two ethnographic sites in New York City. The first site is a citywide coalition working for the adoption of a New York City human rights ordinance. The second site is an advocacy organization working on domestic violence issues. We find that the local adoption of human rights in New York City – the ‘domestication’ of human rights – takes place in two central sites: law and social movement. We further find that the process of translation takes place unevenly in the two sites, and it is driven primarily by the actors, mechanisms and technologies in the social movement arena. Overall, we witness the emergence of a domestic human rights movement as a new counter‐hegemonic space, characterized by multiplicity in meanings, ideological heterogeneity and ambivalence from those engaged in its construction.     

DISPARATE IMPACT AND THE QUOTA DEBATES: Law, Labor Market Sociology, and Equal Employment Policies

Bringing sociological theory and research to bear on the "quota debates' dogging discussion of federal civil rights legislation in the early 1990s, this article highlights sociology's role in shaping employment law and shows how apparently technical legal arguments about allocating burdens of proof affect labor market resource allocation among the classes, races, and genders. Contrasting institutional-sociological with liberal-legal concepts of discrimination, the article shows why disparate impact theory has been the most sociological approach to Title VII enforcement. It also shows how disparate impact—a theory and method for establishing legally cognizable employment discrimination injurious to women and minorities—is, and is not, related to affirmative action—a policy encompassing a broad range of procedures intended to provide positive consideration to members of groups discriminated against in the past. Finally, a competing incentive framework is used to show that, although disparate impact creates some incentives for employers to adopt quota hiring, such incentives are counter-balanced by major incentives working against race- and gender-based quotas. Major counterincentives stem from disparate impact itself, from other aspects of equal employment law, and from organizational goals shaping business response to the legal environment.     

The Legal Road to Rights? Disabling Premises,Obiter Dicta and the Disability Discrimination Act 1995

This article offers a critical exploration of the current limits of the law in establishing and maintaining the rights of disabled people. By offering a critical jurisprudence perspective and applying this to the Disability Discrimination Act 1995, the article highlights the way in which pre-existing social dynamics underpin the manufacture and application of law. Despite the growth of social constructionist, realist, critical and post-modern views of laws, the continued power of natural and positivist views of laws as a supra-social code helps explain the current limits to anti-discrimination law. It is argued that, as a socially created phenomenon, law can be radically reconstructed. However, unless a fundamental reappraisal of law is undertaken, the Disability Discrimination Act and related legislation is likely to remain severely constrained.     

Women's Human Rights Activists as Cross-Cultural Theorists

In addition to offering a basis for the criticism of universal human rights theorizing and practice, women's experience contributes to universal human rights theory building. Women's human rights activists' insights provide the foundation for a theory of universal human rights that is cross-cultural and critical. In sharing their work and strategies, two online working groups of women's human rights activists demonstrate that a theory of universal human rights must offer both (1) common ground on which the parallel efforts of human rights activists around the world can be acknowledged and (2) recognition that though sometimes networked and integrated with those parallel efforts, activism for social change is local, and uses locally appropriate ways to promote women's human rights. Using a theoretical method that treats non-theoretical texts as important sources for theoretical insights, the article introduces an activist-authored cross-cultural theory of human rights, its assumptions, and its theoretical framework. Finally, it draws implications from the activists' theory for human rights scholars.     

Carl Couch: Bridging Sociology and Communication

The article documents how Carl Couch used a sociological approach to conceptualize, analyze, and interpret the communication phenomena studied. It is argued that Couch's analyses offered a thorough sociological discussion and comprehensive understanding of communication issues by relating them to the study of social relationships. One major contribution of Couch's works in communication is his analyses of information technologies. Couch demonstrated the reciprocal relationships between information technologies and social structures. He corrected the technological deterministic flaw in Harold Innis' and Marshall McLuhan's work to demonstrate the interface between information technologies and social structures. To further illustrate the insights of Couch's theses, a study of the experiences of college students with Walkman listening and another study of the Andy Griffith Show Rerun Watchers' Club are considered.     

A Sociology of Human Rights: Rights through a Social Movements Lens

Cet article propose un cadre théorique pour développer une sociologie des droits humains en s'intéressant aux mouvements sociaux dans le but de comprendre les cultures de droits locales. Si le droit humain est une idée qui se développe historiquement principalement à travers l'État, on remarque qu'au Canada, les avancées des droits de l'homme sont le fait de militants travaillant sur le terrain. Dans cet article, on explore aussi les écrits en sociologie au Canada. Les auteurs argumentent qu'on observe un sérieux manque d'engagement de la part des sociologues anglophones et francophones au Canada et que trop peu d'entres eux proposent de réelles études nationales. Évidemment, l'accès restreint à l'information législative représente un obstacle sérieux à la recherche académique au Canada. This article offers a framework for developing a sociology of human rights using social movements to understand local rights cultures. The idea of human rights has historically been highly statist, but grass‐roots activism has been at the heart of the most profound human rights advances in Canada. The article also raises questions about the current state of sociological writing about Canada. The author contends that there is a serious lack of engagement among English and French sociologists, and too few scholars provide genuine “national” studies. Moreover, restrictive access to information legislation represents a serious obstacle to academic research in Canada.     

‘We are not Victims,we are Protagonists of this History’

This article centers on the Mexican and Argentinean ‘Dirty Wars’, examining the limitations inherent in human rights and women's human rights responses to these epochs of violence. I situate Argentina's report on the dictatorship, Nunca más (1984), in conversation with Elena Poniatowska's text on the 1968 Mexico City massacre, La noche de Tlatelolco (1971), to trace the rise of a global human rights discourse that has become the dominant manner of conceptualizing human rights violations and gender violence in the latter half of the twentieth century. While feminist critiques of human rights have centered on the lack of gender-specific focus of violence committed against women, this article questions whether the women's human rights discourse disengages the historical, economic and geopolitical realities from which these violations were committed and instead focuses on women's sexual violations to garner international condemnation of gender violence. By turning to these texts, this article centers on the possibilities and limitations of women's human rights discourse and the impact this has on the shaping of women's political agency. This article calls for a critical feminist approach to women's human rights in order to document narratives of women survivors of human rights abuses without obfuscating their political subjectivities.     

Studying the Sociology of Journalists: The Journalistic Field and the News World

This article makes a case for a socially situated and theoretically sophisticated approach to the sociological study of journalists. This is urgently needed for us to understand the increasingly complex news production environment and the rapidly evolving nature of journalistic practice. Two theoretical approaches to studying the sociology of journalists are outlined and discussed. The first is a development of Pierre Bourdieu's field theory; the second – the ‘news world’ approach – emerges from the social worlds approach commonly associated with Howard S. Becker. Each approach on its own shows considerable promise for the analysis of the increasingly complex news media environment. The article concludes that the journalistic field and the news world approaches could be combined to create a new framework for the sociological study of journalism that would provide a way forward for the important empirical research on journalists that is now needed.     

The Family in the Light of a New Relational Theory of Primary,Secondary and Generalized Social Capital

The aim of this article is to pinpoint the relevance of family relationships in the studies on ‘social capital’. In order to clarify this perspective, Pierpaolo Donati outlines a new approach called ‘relational approach’. According to it, social capital is a property and a quality of social relationships, not an attribute of individuals or social structures as such. This theory has two major advantages: first, it leads to differentiate those components of social capital which are usually conflated; second, it permits to identify various forms of social capital (primary, secondary-communitarian and civic or generalized). Riccardo Prandini criticizes the sociological prejudices which consider the family mainly as an obstacle for the full deployment of ‘liquid’ and ‘modern’ social relations. The family's social capital is defined as the reciprocal orientations of the family's members which are able to generate trust and therefore cooperative actions. Empirical evidence shows that the family's social capital is strictly connected to the emergence of pro-social attitudes in individuals, particularly in terms of social trust and participation in civil associations.     

A Human Rights Approach to Stopping Homophobic Bullying in Schools

SAMMARY

This article examines the development of Winnipeg School Division's groundbreaking program to oppose homophobic bullying by making that struggle synonymous with the defense of human rights. The analysis draws on interviews with key players in the development of the program, committee minutes, newspaper accounts, workshop evaluations and court rulings. The Division's approach involves a range of actions, the mainstay of which is compulsory workshops for all employees, and is supported by various initiatives undertaken by stakeholders outside the Division. The article assesses the strategic merits of the Division's human rights approach to stopping homophobic bullying and argues that curriculum development is still required to achieve the full potential of that approach.