How sociology can unfold the law
If sociology studies the law, it should focus on its production patterns, on the legal text itself, and on practices – contrary to theories which defend the autonomy of the law, or which study the field of legal professionals. Such a position compels the sociologist to be critical, and to conduct research on issues of which law is only one aspect. Demonstration will be based on three cases : fight against "cults" in France, treatment of dead bodies, and intellectual property.
Coping by law with digital uncertainty : “Failure to secure” as infringement in Hadopi
The creation and implementation of the Haute Autorité pour la diffusion des œuvres et la protection des droits sur Internet (High Authority for the diffusion of works and the protection of rights on the Internet, or Hadopi) is an occasion to observe the extent to which copyright is a performative system. The French legislator, to cope with the steady rise of downloads of copyright-protected digital content, attempts to fill “by law” the gap opened by the digital (r)evolution in the general anti-counterfeiting regime. This article follows the attempts to reconcile several conflicting dynamics – metrological frailties, difficulties of definition, diversity of infractions. Ultimately, a newly-created infraction, defined by unprecedented legal, material and moral components, provides a reference point allowing to restore – albeit tentatively – the authority of law on undefinable, unseizable objects, by defining as infringement the “failure to secure” one's Internet connection.
Is it possible to transcend the Civil Code ? On the legal controversies concerning war damages (1914-1919)
The Charte du sinistré, enacted on 17 April 1919, was the legal framework for the reconstruction of properties and goods damaged in France during World War I. Its elaboration led to heated controversies among French legal scholars on the modalities of providing war reparation, which addressed the definition of what law is or ought to be. Does it constitute a unique and stable model shaped by the Civil Code, or does it allow for some innovation and creation of new rules ? This study shows the different conceptions of law defended by legal scholars and the controversies arising due to the desire to transcend the Civil Code. It also discusses the social effects of the technical expertise promoted by the jurists.
The code as a practical accomplishment : an ethnomethodological respecification and an Egyptian case study
The study of law is conceptual : it deals with the grammar of the concept of law in the whole range of its usages and practices. This paper illustrates this point from the perspective of the code. It insists on the necessity not to lose the fundamental phenomenon which has to be treated when addressing codified laws, that is, the practice of codifying and of referring to the code. It means to observe and describe the people’s practical orientations to what they identify as a code, their way of making reference to, use, follow, manipulate, substantiate, or invoke it. This cannot be achieved but through the detailed examination and description of the situated circumstances within which the participants to a legal or judicial process make the code relevant for their own practical purposes.
The invention of law in the West. Reading Aldo Schiavone
This book review focuses on Aldo Schiavone’s Ius. L’invenzione del diritto in Occidente. It considers, at first, the French translation of the book and the problems raised by the notion of disciplinamento, which is essential in the author’s view, and which is badly translated. In a second time, the review presents the evolution of the law in Rome, as conceived by Schiavone. According to him, ius is a stabilizing answer, which allowed to discipline a society and to help it to endure in a hostile environment. The history of the ius then appears as the progressive isolation of an autonomous legal function in the Roman society, in particular through the shift towards the abstraction that occurred at the turning point between Republic and Empire. That shift in a legal formalism definitely isolated the ius in an independent legal sphere, which constitutes Rome’s most important legacy to the West.
How does law make equality real ? Comparison between French and American sociology of anti-discrimination law
This article is a comparison between French and American sociology of non-discrimination law and their assessments about its capacity to make equality. Three aspects are analyzed : the capacity of law to qualify discrimination facts, to heal victims of discrimination and to modify power balance between minorities and majority. In France and in the USA, researches are globally skeptical about the power of law. But American researches are less radical and more ambivalent and pragmatic. The historical experiences and the legal traditions can explain this difference.
Gender and judging, confronting law and gender studies
This essay provides an overview of an emerging field of research in law and social sciences. Under the heading “gender and judging”, this new approach raises several issues such as the feminization of the judiciary, gender-based differences in sentencing, and the reproduction of gender norms in justice system.
Human rights : a borderline case for legal positivism
The tradition of legal positivism was rather reluctant towards the important taken by the abstract and pre-legal notion of “right” in political and social discourse. But the situation started to change after the Second World War, and, even more, in the 1960s, when “human rights” imposed themselves within a variety of discourses. In order to respond to this new state of affairs, Joseph Raz proposed an original reading of human rights, understood as being “without foundations”. This article presents Raz’s positions, on rights, and, subsequently, on human rights. These two stages of the presentation lead to a critical evaluation of the proposed theory. Indeed, the general theory of law advanced by Raz, as well as his more specific work on human rights, present themselves as going beyond the classical division between iusnaturalism and legal positivism. This article argues that, even if this position is intellectually stimulating, the distinction remains relevant and deserves to be defended, in particular in thinking about the human rights.
Law as a discourse, Law as an apparatus
This paper gives a commentary on a book entitled L’ordre juridique et le discours du droit. Essai sur les limites de la connaissance du droit (The legal order and the legal discourse. Essay on the limits of law understanding) written by a French Professor in Law, Rémy Libchaber (Paris, LGDJ, 2013). It exposes, with inevitably personal viewpoint, some key elements of an original definition of the Law. Trying to propose something different from positivist or naturalist theories and to reconciliate theory and practice, Rémy Libchaber develops the idea of the Law as a discourse and the Legal order as device allowing the production of this discourse. He adds a cultural conception of the Law which opens interesting avenues worth exploring. This presentation leads to critical interrogations. What reveals such a publication about what is going on in French universities of Law ? Does the definition proposed constitute a federative project or a marginal thesis ? Despite of its seduction, some indications lead to seriously doubt the paradigmatic vocation of the new suggested frame for thought.
John Dewey and legal theory and philosophy of law
In 1941, John Dewey contributed to a conference at Northwestern University where he presented his “philosophy of law”, along with law professors and another philosopher. The commentary of this short text allows us to develop several lines of thought, in sociology as well as in philosophy of law, exploring new and promising areas for research in law and justice inspired by pragmatist philosophy. By opening up empirical research programs and by questioning internal and normative approaches to law, Dewey invites us to consider “Law” as a fully social process, against lawyers’ traditional views.
