Two Transitions in Criminal Courtroom Research

Hadar Aviram

Tel Aviv University

Paper presented at: New Directions for Criminal Courtroom Research,

Tel Aviv University, May 16-17, 2007

*********DRAFT**********

*****do not cite or quote without written permission from author*****

******comments welcome*****

A. From Norm to Practice and from Practice to Discourse

I remember the first time I sat in a criminology lecture, on my first year in graduate

school after having been in legal practice. As our professor, the late Vicky Shiran, laid

out our plan for the semester, I felt extremely excited. I was being let in on a

conspiracy I had been intuitively suspecting ever since I had started practicing law.

And, guess what: my suspicions were correct! Something was, indeed, very rotten in

the kingdom of the criminal justice system. The law wasn’t working the way it was

supposed to. Policemen behaved in racist and violent ways, then lied about it.

Prosecutors were incorporating bureaucratic and cheap populist considerations in their

decisions to indict. Defense attorneys weren’t protecting clients at all costs; they were

managing busy workdays, annoying and impoverished clients, and their tumultuous

relationships with the prosecutors and the court. Judges really preferred defendants

who looked like them to those from less privileged backgrounds, and many of them

were more concerned about docket management than they were about rights. These

folks, who were going to teach me criminology, they were on to the conspiracy! They

had been systematically uncovering the dark secret, operationalizing variables,

collecting and coding data and analyzing findings on all these ugly phenomena I was

seeing. These horrible things I saw every day at work were really happening and these

brave criminology types were out to prove it.

Several years and discoveries later, my conversations with colleagues with similar

career trajectories showed that several members of the criminal courtroom research

“tribe” had gone through such epiphanies upon entering the world of social science.

This paper sees these epiphanies as manifestations of broader, collective transitions

occurring in our research field. As I argue here, the study of criminal courts has gone

through two such major transitions, which involved reconfiguring the theory,

methodology and policy implications our work had to offer. This paper delineates

these two transitions and examines their promises and discontents.

The first transition, which I name here “from norm to practice”, reflects the field’s

break from the world of legal-normative criminal justice studies. It is a shift from a

focus on prescriptive norms, and from a paradigm of designing balance between

abstract contrasting values, to a focus on the ways in which rules are implemented in

the actual practices of the court. The second transition, which I name “from ‘practice’

to ‘discourse’”, reflects a shift from this aim to uncover what “really” happens in the

criminal process to the rejection of any such “reality”, and toward an exploration of

how law conceptualizes its chosen “reality”, and of how these “realities” have come

to be.

Before discussing these transitions in detail, two cautionary remarks are in order.

First, the paper sketches in simplified, broad brush strokes different processes that

occurred in different disciplines; each of these disciplines, and actually each of the

researchers, has its own approach toward criminal courtrooms and how they are to be

understood. While the transitions do have disciplinary aspects (from doctrinal law to

social science in the first transition) and geographic aspects (from American-based

law and society to European-influenced discourse analysis), they cannot always be

neatly mapped across professional disciplinary divides. Table 1 shows the disciplines

that engage with the different paradigms, classified by their relationship to the

paradigms I discuss in this paper.

Table 1. Classification of disciplines according to their approach to courtroom research

Norm Practice Discourse• Criminal Law• Criminal Procedure• Evidence• Economic/ Behavioral

Modeling (newer)

• Law and Society• Critical Criminology• Critical Legal Studies• Critical/NeoMarxist

History• Organizational Sociology• New Institutionalism

• Cultural Analysis• Foucaultian

Governmentality and Genealogy

• Luhmann’s Systems Theory

• Narrative Studies

A second, related comment has to do with the chronology of the transitions. The

transitions are delineated here genealogically, rather than chronologically. As socio-

legal scholars know, the principles of universalism, rationality, autonomy and equality

in formal law were questioned by legal realists as early as the late 19th century, and

there were certain heralds of the empirical approach to courts in the work of the

Chicago project and other studies. However, for those seeking some chronology, the

first transition seems to have been most significant between the early 1960s to the late

1980s. During these years, labeling theories, building on symbolic interactionism,

stated that behaviors were not intrinsically criminal, and that people were not

intrinsically offenders (H. Becker, 1963). Radical and Neo-Marxist criminology dared

say that criminal offenses were not the Holy Gospel; they were crafted by powerful

groups with group interests (Quinney, 1977; Taylor, Walton, & Young, 1973; Turk,

1969). Marxist historians detailed the history of criminalization with attention to

power and politics (Chambliss, 1964; Hay, 1975; Thompson, 1975). Critical Legal

Studies, born within law schools, offered more Marxist-influenced insights, as well as

the assertion that justice was far from what law books proclaimed it to be (Kennedy,

1998). And the Law and Society movement, formed in 1964 and drawing on various

theoretical backgrounds, including Legal Realism, examined the criminal process

through the lens of a “gap” between “law in the books” and “law in action” (Pound,

1910) – a difference between the formal, normative, prescriptive model of law and its

empirical manifestation in legal settings - and arguably the most influential concept in

socio-legal scholarship in general (Sarat, 1998). As to the second transition, while

several influential jurisprudence scholars had paid attention to what the law does and

how it thinks (Dworkin, 1988; Hart, 1997; Kelsen, 1981), the most influential herald

of discourse scholarship in the States was probably Michel Foucault’s Discipline and

Punish (Foucault, 1979), and somewhat later, his lectures on governmentality

(Foucault, 1991) through Hunt and Wickham’s The Foucault Effect (Hunt &

Wickham, 1994). Foucault-influenced scholarship – as well as scholarship built on

other discursive theories, such as Niklas Luhmann’s systems theory (Luhmann, 2004;

Luhmann & Baecker, 1995) and Gunther Teubner’s work in this tradition (Teubner,

1983, , 1989) – has been increasingly influencing Anglo-American criminal

courtroom research since the 1990s.

The paper begins by offering, in chapter B, the main premises and research trajectory

of norm-centered scholarship. It then discusses its conceptual and practical problems

and explains the genealogical emergence of practice-centered scholarship, whose

theoretical basis and methodological approach is presented and analyzed in chapter C.

Chapter D presents discourse-centered scholarship, its potential to examine models

and issues unexamined by practice scholarship, and its own discontents; finally,

chapter E examines the extent to which we have exploited the potential of “hybrids” –

projects that stem from several paradigms – and raises some questions about the

future of courtroom research

B. Norm-Centered Scholarship

Prescriptive studies of the criminal justice system are primarily concerned with

norms, whether substantive or procedural. Consisting mainly of doctrinal legal studies

of criminal law and procedure, norm-centered scholarship is, as defined by Abel,

a study of the rules which legal institutions apply, or which regulate the behavior of those institutions. The study identifies, defines, organizes, and criticizes the rules by means of criteria proper to the legal system – it rationalizes them in Weber’s sense. The mode of rationalization need not be wholly internal to the legal system – it may, for instance, connect the rule with some social goal – but the relationship between that goal and the legal rule is the product of a mental operation peculiar to law… Most important for my argument, the legal scholarship which produces law books is also a response to the demands of a functioning legal system. (Abel, 1973: 176)

The philosophy of norm-centered scholarship is best understood as a product of

Enlightenment Era, based on two important tenets: the abstract and universal nature of

law, inflicted equally and preemptively on all future situations and people without

discrimination (Trubek, 1990), and the Benthamian image of its subjects as

autonomous, rational actors who have free choice and would ordinarily use this choice

to increase pleasure and to avoid pain (Bentham, Burns, & Hart, 1996[1780]). Cesare

Beccaria, whose work is solidly based on these two principles (Beccaria, 1988) is

often hailed by criminologists as the father of classicist criminology (Maguire,

Morgan, & Reiner, 2002; McLaughlin, Muncie, & Hughes, 2003; Vold, Bernard, &

Snipes, 2002), but can be referred to just as convincingly as the father of criminal law,

or at least of prescriptive scholarship.

The assumptions of universalism, objectivism and rationality make norm-centered

scholarship a strong believer in law’s ability to shape human behavior. Criminal law

norms, assumed to have an ex ante effect on the behavior of defendants as well as law

enforcement agencies, are shaped with the aim to balance between contrasting values.

In the case of criminal courtrooms, the scale usually consists of the following ideas:

on one hand, the need to protect the public (by framing criminal offenses so as to

deter potential perpetrators from committing crime, and by broadening the powers of

police and courts to unmask and stop actual perpetrators from committing more

crime) and to discover the truth (by allowing evidence to be presented); on the other

hand, the need to protect individual freedoms (that is, maintain free choice by not

unnecessarily criminalizing human activity, and by not allowing law enforcement

agencies to unnecessarily intrude upon human activity) and to balance what is seen as

an inherent inequality in the criminal justice system between state and accused

individual (by providing procedural and evidentiary “tools” favoring defendants, such

as burden of proof, reasonable doubt, and due process premises). In the American

context, these balancing acts are constructed through an analysis of the Fourth, Fifth,

Sixth, Eight, and Fourteenth amendments, with “due process” as a key term (Dressler

& Michaels, 2005), but they are far from endemic to constitutional clauses, and Israeli

legal scholarship, for example, discusses them at length in the context of Article 3 of

the Human Dignity and Freedom Basic Act (Karp, 1995), and before its enactment in

1992 it discussed them as abstract principles (Kremnitzer, 1980).1

Some practice scholars would probably hesitate to acknowledge that norm-centered

scholarship has a distinctive research “design”; however, prescription scholarship

does follow a specific type of norm-centered logic. In fact, legal scholars think of

normative problems in a similar way to that of lawyers and judges. The logic of law

consists of identifying the pertinent norm and correctly applying it to the problem

1 Substantive law also assumes universalism and rationality, manifested by its seminal principle of legality, the basis for all principles for establishing criminal responsibility (Feller, 1984; Kadish & Schulhofer, 2001).

(Kennedy, 1998; Twining & Miers, 1999; Vandevelde, 1996); in the case of

constitutional clauses, this also means creating the correct balance between the

different values presented earlier. Flowchart 1 delineates a typical process for norm-

centered scholarship, which usually consists of a critical evaluation of a criminal

justice norm.

Flowchart 1: Norm-centered scholarship research design

Norm-centered studies define the problems they address according to the dilemmas

they raise. For example, a norm-centered approach to an issue of criminal

What is the problem?

Which values do we aim to balance using this norm?

Does current norm achieve a correct balance?

Historical context/meaning of the

norm

Suggested norm that achieves better balance

Behavioral incentives created by norm

Coherence with other norms

representation examines the right to counsel as the focal point of a balance between

the concern for assisting defendants (and, by doing so, helping the weaker party in the

criminal justice setting), and the concern for allowing the system to work efficiently

and free of exploitation. This dilemma is used to solve a variety of norm-centered

problems concerning the right to counsel, such as counsel during specific stages of the

process (Zavin, 1999), counsel in specific types of offenses (Wuslich, 1987), counsel

for specific types of defendants (Yalowitz, 1984; Beeman, 2001), and counsel in

special circumstances (Beckman, 1986; Anderson, 2004). In all these cases, norm-

centered scholarship seeks to examine whether the conflicting values have been

correctly balanced against each other, taking into account the special characteristics of

the situations. The logical trajectory (or methodology, if you will) for answering these

questions might consist of a historical attempt to ascertain what the original creators

of the norm (the Framers, in the American case) would believe was a correct

implementation of their norm had they been confronted with the case; an analysis of

the possible ex-ante impact of any chosen balance between the values; or an

examination of the “fit” between the suggested solution to the problem and the

solutions for similar problems. Policy suggestions are also norm centered: if a certain

balance between values is seen as promoting undesirable human behavior, the study

often recommends amending the norm (or its interpretation) so as to achieve a better

balance.

This design is best understood if we keep in mind that norm-centered scholarship

provides, as quoted from Abel above, “a response”, albeit an academic one, “to the

demands of a functioning legal system”. Legal systems are based on the power of

norms as strong behavioral incentives (Fish, 1991). However, these very

characteristics make norm-centered scholarship vulnerable to criticism from external

perspectives, highlighting its theoretical, methodological and policy-related

discontents.

The theoretical critique of norm-centered studies revolves around the fact that norm-

based theories do not account for legal practices in the field. The intellectual exercise

of balancing values through norms is worthless without the premise that norms,

indeed, matter for human behavior; this premise has no value without the assumptions

of universalism and rationality, neither of which is based on facts or proven to be true.

This is, of course, closely related to the methodological critique of norm-based

scholarship; staunch empiricists would not even regard the logical trajectory of norm-

based studies “methodology”, and argue that it relies on excessive unfounded

generalizations, rather than on systematic analysis. While norm-centered scholarship

can be said to be systematic in its application of logic, it often either follows the

doctrinal case-by-case format for critiquing norms, or broad abstract discussions that

do not refer to what happens in the field. This problem, in turn, is connected to a

policy-related discontent; due to its lack of systematic analysis and disconnect from

what occurs in courts, many purported solutions to legal dilemmas, in the form of

suggested norms, fail to yield the expected outcome in terms of behavioral incentives.

Naturally, these discontents, which yielded the transition to practice-centered

scholarship, did not put an end to legal scholarship as we know it. In fact, in recent

decades, as practice-oriented scholarship has developed, norm-oriented scholarship

has received a significant boost in methodology and prestige in the form of law’s

alliance with behavioral economics (Donohue, 1988; Rostain, 2000; Trubek, 1990).

While law has maintained insularity to external perspectives – even to Weberian

theories on rational law, which describe its functions (Hunt & Wickham, 1994) – has

it has been increasingly permeable to economics, a discipline with which it enjoys a

“kinship” based on the strong compatibility between legal and economic views of the

individual subject as a rational, well informed agent who operates based on cost-

benefit analysis (Cooter & Ulen, 2000). Based on this image of the person, economic

analysis of criminal justice espouse deterrence models based on optimal incentives

(G. S. Becker, 1968; Ehrlich, 1972).2

C. Practice-Centered Scholarship

While norm-centered scholarship focused on producing abstract modeling for criminal

processes that provide an optimal balance between conflicting values, the central

conflict in practice-centered conflict was not between values, but rather between the

aspirations (as manifested in the values) and the realities of the criminal justice

system’s daily work. Different disciplines defined this conflict in different terms, but

perhaps its best articulation was the aforementioned Law and Society Association’s

reliance on the concept of a “gap” between “law in the books” and “law in action”

(Pound; for the impact of “gap” on the broader law and society field, see (Levine,

1990; Pound, 1910; for the impact on the law and society field, see; Sarat & Kearns,

1993; Trubek, 1990). This juxtaposition of the law and society starting point to that of

formal law was, to an extent, triggered by the doctrinal insularity and formulated as a

2 However, further work, based mostly on experimental research designs, found that the mere knowledge and fear of a criminal sanction is not enough (Tyler, 1990), that uncertainty of apprehension hinders deterrence even when punishment is severe (Berkovitz & Walker, 1967), and that social and personal factors, such as shame, embarrassment (Gramsick & Bursik, 1990) and a sense of justice (Tyler, Boeckmann, Smith, & Huo, 1998) are significant to the prediction of legal behavior. Newer work in the law and economics tradition broadens and complicates the scope of discussion by addressing the power of informal norms, vis-à-vis the law, as an intricate structure and an interfering variable in creating incentives for behavior (Anderson, 2000; Ellickson, 1991, , 1998)

response to it,3 just as “the new criminology” (Taylor, Walton, & Young, 1973) was

formulated as a response to consensus-based criminological theories.

The criminal justice arena was an ideal setting for contrasting the inconsistency

between the theoretical values promoted by the law and what occurred daily in police

stations, courts, and hallway plea-bargaining discussions. Far from ascribing these

practices to the effects of norms, practice-centered scholars usually ascribed them to

extra-legal factors, either pertaining to the endogenous criminal justice system’s

malfunctions and pathologies or to exogenous factors such as social stratification and

racism. Both of these subsets of the practice-centered scholarship “family” are now

considered classics in criminal courtroom research.

Being mostly rooted in the social sciences, practice-centered scholarship examines the

criminal process through an empirical lens. A typical research design, as delineated in

flowchart 2, relies mostly on ethnography, and often combines several methods, such

as observations (conducted in courtroom as well as in hallways and in prosecution and

defense offices), interviews, quantitative analysis of sentencing, and occasionally a

longitudinal study to assess the effect of a norm-based reform on practices.

Flowchart 2: Practice-centered scholarship research design

3 This is evident from Skolnick’s response, in defense of the Law and Society movement (1966), to Auerbach (1966), who expressed a limited and confining view of the role of social science in the study of law. Disagreeing with Auerbach, Skolnick rejected the idea of limiting sociology of law to the empirical study of the legal profession, as well as the notion that social scientists should take for granted the positivist definition of law which lawyers "generally have in mind": "Sociology of law is not merely a description of the law in action, which some legal realists took it to be in response to the 'black letter' emphasis of many law teachers. It is also an analysis of the meaning and function of law in societies of different kinds” (Skolnick, 1966: 109).

Projects that focus on endogenous variables to explain courtroom practices usually

reject the notion of the system as a rational apparatus with a single goal in mind as a

simplistic abstraction, which does not take into account the organizational context of

the criminal courtroom setting (M. Feeley, 1979; M. M. Feeley, 1973). The system

consists of different actors – the courtroom “workgroup” or “elite”, consisting of the

prosecution, defense and judiciary (Nardulli, 1978) – whose interests conflict at times

and converge at others. As Eisenstein and Jacob (Eisenstein & Jacob, 1977) find in

their comparative three-city study, the more close-knit the workgroup is, the easier it

is to dispose of cases through negotiation. The key variable is familiarity between the

actors, best achieved in “repeat-playing” scenarios. A later study (Eisenstein,

Flemming, & Nardulli, 1988), finds other variables: jurisdiction’s size, geography and

demography, familiarity within the system, centralization of court units (common

meals by judges, organization of the prosecution and defense), and the existence of

emotional undercurrents and "grapevines".

Due to the system’s focus on its latent goal, case disposal and “offender processing”,

many practice-centered works focus on the unglamorous, routinized interactions that

What does the norm claim to achieve?

Is this achieved in practice?

Why not?

Endogenous factors

Exogenous factors

interviews

Courtroom observations

Sentencing analysis

Longitudinal study

Organizational / conceptual / normative policy suggestions

exist in the shadow of formal norms. Plea bargaining often occupies center-stage, as

the epitome of “real-life”, informal, practices of case disposal. For example,

Blumberg’s analysis of plea bargaining (1967) emphasizes the gap between the

defense attorney’s “formal” role and their actual interest in entering a guilty plea on

behalf of their client, leading them to convince defendants to confess through a

sophisticated “con game”. Heuman (Heuman, 2001) and Emmelman (Emmelman,

1996, , 2003) also examine the defense attorneys’ strategies; Emmelman comes to

somewhat less somber conclusions on the defense’s work. A somewhat different

approach to the study of plea bargaining is Maynard’s linguistic analysis of

negotiations, which he uses to learn about power differences between the negotiators

(Maynard, 1984, , 1988).

It is important to note that practice-oriented studies create categories based on what

they see as the working conventions in the field, rather than the formal legal

categories. Sudnow (Sudnow, 1965), for example, demonstrates how defense

attorneys reclassify offenses not based on their legal definition, but rather on their

similarity to familiar repetitive “case scenarios”, which he can then present to the

prosecution in plea-bargaining negotiations.

While some practice-centered scholars see plea bargaining as the dark, unwanted

child of the formal criminal process, others, like Feeley (1982), see it as a direct

consequence of an adversarial legal system, brought about by the judicial passivity,

active prosecution and increased opportunities for the defense which characterize

Anglo-American due process. Similarly, Langbein (Langbein, 1979) sees them as

informal “remedies” the system creates for the cumbersome nature of formal

procedural and evidentiary rules.

Projects that focus on exogenous factors face the challenge of operationalizing broad

variables such as class and race, as well as the difficulty of controlling for interfering

variables. Some of these studies use quantitative analysis of case processing (case

closure rates, decisions about arrests, and most often sentencing decisions) to examine

biases in the treatment of different demographics, such as race (Balbus, 1973;

Hudson, 1996), gender (Bogoch & Don-Yichya, 1999; Daly, 1994) and ethnicity

(Rattner & Fischman, 1997). While the conclusiveness of these studies varies in

regard to the severity of punishment, they do strongly point to differential treatment of

the social group in question. For example, Balbus’ study of the Black Rebel trials in

Los Angeles, Detroit and Chicago in the late 1960s, shows a tendency for immediate

response in terms of arrest and indictment where major activity occurred

(paradoxically, leading to a larger rate of later dismissals than in areas where revolts

were less extreme). Balbus explains these unusual measures by the defendants’ color,

which made the authorities perceive what was later seen as “common criminality” as

menacing and dangerous.

Other studies of exogenous factor provide historical accounts of criminalization and

of the introduction of penal practices to construct an etiology of these phenomena,

focusing on the socio-economic and political conditions that yielded biased against

lower-class populations. While not all of this works went as far as to offer a wide

Marxist critique of criminal justice across time and place (such as Rusche and

Kirchheimer's controversial 1939 classic), many did use neo-Marxist perspectives.

For example, Chambliss’ analysis of the birth of the Vagrancy Act (Chambliss, 1964)

places its legislation in the context of the medieval need for labor in light of the

reduction in population due to the Plague and the crusade casualties. Similarly,

Thompson’s explanation of the emergence of the Black Act of 1821 is closely tied to

the need to defend the property interests of the king in the face of poaching attempts

(Thompson, 1975). Historical explanations of criminalization often explain law’s role

in preserving a hegemonic status quo: Hay’s account of the administration of the

death penalty in England (Hay, 1975) shows the symbolism and ritualistic patterns

used by criminal law, particularly in the administration of criminal executions, to

convey a misleading notion of objectivity, equality and mercy. A similarly holistic

account of the law as the perpetuating agent of a social system is Genovese’s account

of the criminal prosecution of slaves in the American South (Genovese, 1976). The

supposedly lenient approach of the law toward transgressions committed by slaves

awarded slave owners control over their fate, redefining their status within the larger

social and economic framework of slavery (for a somewhat different focus on the

same system, see Noonan, 1976). Studies of the creation and enforcement of narcotics

prohibitions (Comack, 1985; Duster, 1970; Small, 1978) demonstrate that a successful

criminalization depends on the linkage between certain substances and certain

minority and ethnic groups; by contrast, Gusfield (Gusfield, 1986) explains the failure

of alcohol prohibition by documenting the change in social, religious, medical and

political coalitions for and against it. Studies of the etiology of penal practices often

highlight the role of underclass control in the creation of institutions such as

juvenile court (Platt, 1974), probation (Simon, 1993), correctional facilities (D.

Rothman, 1974; D. J. Rothman, 1980) and incarceration alternatives (Cohen, 1985;

Rosen, 1982).

Practice-centered scholarship can paradoxically be critiqued on its failure to take law

seriously and, simultaneously, on its tendency to take law too seriously. As Doreen

McBarnet frames the problem,

[s]ociologists have taken the question of how the criminal justice process works in relation to the principles of law by investigating only one side of the equation, the operation of justice, not the law itself. Explicitly or implicitly the question underlying sociological analysis of the criminal justice process always seems to be concerned with why the people who routinely operate the law also routinely depart from the principles of justice… What is barely touched on is the nature and role of the law itself... The assumption has been in effect that law incorporates rights for the accused, and the problem has been simply to ask why and how the police and courts subvert, negate or abuse them. (McBarnet, 1981, pp. 4-5: 4-5)

By focusing its critique on the implementation of law, rather than on formal law,

practice-oriented scholars make two assumptions about the latter: one, that norms

themselves are not at fault for the pathologies of the criminal justice system, and the

other, that these norms cannot be a useful explanatory variable for these pathologies.

The theory remains focused on practices, and there it faces additional challenges,

particularly pertaining to the explanatory factor of exogenous social realities on

criminal justice. First, power and stratification tend to yield non-falsifiable theories.

The methodological problem of operationalizing these exogenous factors makes many

one-dimensional explanations incomplete and unhelpful, as findings often disappear

when adding pertinent intervening variables. In the example of race, which occupies

much of the practice-centered scholarship in the States, the race of the victim has been

found to be more significant than that of the defendant (Hawkins, 1987); similarly, the

sentencing differences between black and white judges lose statistical significance

when additional variables, such as career trajectory prior to appointment, are added

(Welch, Combs, & Gruhl, 1988). While, theoretically, studies need not be one-

dimensional explanations and can be improved through the addition of more and more

variables, these tend to muddle the picture until nothing of value can be said about

criminal practices. The inability to provide a uniform account of “the truth” about

what happens in courts has made several scholars shy away from espousing a certain

“truth”, or dubious as to the existence of any such “truth”. One of these scholars,

Gunther Teubner, expresses his discontent with the concept of truth:

“Law and society” and “law and economics” are not doing any better if they pretend to invoke the authority of controlled scientific observation against the lawyers’ ‘mystifications’ of the social world… If epistemological constructivism does anything it is to deconstruct the claims of modern science to having privileged access to reality… Science does not discover any outside facts; it produces facts. (Teubner, 1989: 743)

Furthermore, even supposing that we can successfully operationalize “discrimination”

in the legal system, research findings that demonstrate discrimination against weaker

social group are as likely to be accepted as proof of conflict and neo-Marxist theory

(“power has prevailed”) as conflicting findings showing no discrimination (“power is

maintained through false consciousness”).

Since practice-centered scholarship uses fact-based, rather than norm-based, methods,

its policy suggestions also tend to be fact-based. This is their strength and their

weakness. Due to the insularity of the legal professional arena, policy suggestions that

ignore the nature of law and its importance for norm-centered scholars are unlikely to

connect well with lawmakers and the legal field and therefore unlikely to propel

change, unless willing to communicate better with governmental policies (Simon,

2004). Arguments about social stratification and its impact on legal representation and

due process are unlikely to produce an acquittal in court; due to the prestige and

insularity of the legal profession, they also have a hard time communicating the

message of empowering minority and indigent defendants in policymaking settings.

These critiques have brought some scholars to the conclusion that, in order to

understand courtroom phenomena they must take the language and logic of law more

seriously, albeit not as uncritically as norm-centered studies. It is this understanding

that yielded the second transition, to which we now turn.

D. Discourse-Centered Scholarship

If practice-centered scholarship raises first-order questions (“what happens in the

criminal justice system?”), then discourse-centered scholarship is, in a way, a retreat

into second-order questions (“what is said/thought about what happens in the criminal

justice system?”). This new question does not focus on the ontological nature of the

criminal process (in fact, some scholars eschew the existence of such ontological

nature, while others remain deliberately agnostic about it), but rather about its

epistemological construction: how law understands, through its particular framework,

what this process is and how it should devise it (Anderssen, 2003). Some, like Reza

Banakar, see this family of approaches as a bridge between law and sociology, and

between internal and external theories on the legal system (Banakar, 2003).

By abandoning the practice-centered quest for “the truth”, and focusing instead on the

process of creating “truths”, discourse-centered scholarship achieves two things. First,

it restores the serious approach toward formal law, whose opinions about social

problems and approaches on how to solve them become as important as those

expressed in its shadow; and second, by doing so, it does not exempt formal law from

the critical inquiry awarded to legal practices.

Discursive analysis of the criminal justice system in Anglo-American scholarship has

been inspired by the works of European theoreticians, such as Michel Foucault and,

somewhat to a lesser degree, Niklas Luhmann. While these theories differ from each

other in many ways, they share an interest in legal rhetoric as an object of research;

law’s premises, as well as its practices, reveal the way in which it thinks about

problems (in our case, criminal justice problems), and its system of logic and

knowledge producing mechanisms are the focus of the study. The two theories also

share an agreement about the incomplete nature of law and the way its consistent

techniques of developing knowledge perpetuate this incompleteness. In addition, both

theories examine what happens when law and knowledge interacts with external

frameworks, in Foucaultian theory through “conditions of possibility” for the

emergence of knowledge, and in systems theory in the form of “irritants” to, and

structural couplings with, the autopoietic, closed legal system.

Governmentality focuses, analytically and methodologically, on the connection

between power, exercised at various levels – from state power to power over the self –

and knowledge4. Foucault observes the interplay between -

a ‘code’ which rules ways of doing things… and a production of true discourses which serve to found, justify and provide reasons and principles for these ways of doing things. To put the matter clearly: my problem is to see how men govern (themselves and others) by the production of truth. (Foucault, 1991a)

The emergence of this “code” and the production of a “truth” which informs and

supports it is studied through different events, approaches and practices, emerging in

different social locations and fields, to establish the “conditions of possibility”

(Foucault, 1991a) which constitute ground for the emergence of ideas and policies.

4 Foucault’s notion of “law” was rather narrow; governmentality developed to encompass the modern concept of law, using Weberian ideas of legal rationality, in later projects drawing on his work (Burchell, Gordon, & Miller, 1991; Hunt & Wickham, 1994; Rose, 1999).

Rather than searching for deep structural motivations for policy, governmentality

attends to “superficiality, an empiricism of the surface, of identifying the differences

in what is said, how it is said, and what allows it to be said and to have an effectivity”

(Rose, 1999). Governmentality is not interested primarily in demonstrating the

ideological distortions in official “truth”, but in documenting how the investment of

power in forms of truth transforms the way subjects and social institutions become

problems for government. In regard to criminal justice policy, an inquiry from a

governmentality perspective might seek to examine how criminal justice norms, law

enforcement policies, and courtroom rituals, perceive the problem of crime and the

image of the offenders; what realms of knowledge (classicist doctrinal legal logic;

therapeutic discourse; managerialism) yield these perceptions; why some behaviors

are criminalized, and why some behaviors are extensively regulated by procedural

rules; and what techniques and strategies the system espouses to resolve what it

perceives to be the problem.

Luhmann’s systems theory is concerned with various aspects regarding systems of

communications (the unit of measurement for the theory). It examines forms and

patterns within the system, the interaction between a system, its environment, and

other systems, and the relationship between systems and semantics (Andersen, 2003).

In regard to the legal system, perhaps its most well-known aspect is its concern with

autopoiesis, the self referential and self productive nature of law, and with law’s

boundaries, self-production, and relationship with external structures.

A systems theory observation of the legal system would not be limited to self-description (which is limited to law’s understanding of its environment), but would be able to look at the relationships between the legal system and other social systems. In particular, through the concept of structural coupling, the theory would be able to examine the social conditions of law’s autonomy: the ecological dependencies of the system. (introduction to Luhmann, 2004: 47).

Law, like other systems, has a tendency to self-sustain and self-perpetuate its own

existence and its own way of thinking about problems (Banakar, 2003; Priban &

Nelken, 2001; Teubner, 1983, 1989) (Clam, 2001), by using internal dichotomies

(“legal/illegal”, or perhaps in our case, “guilty/not guilty” or “due/undue process”),

professional terms and self-referential practices. These make law an independent

entity constructed of the body of legal communications: legal documents, statutes,

verdicts, things said during court hearings, all of which converse with each other and

refer to each other. Since the law sees itself as a complete enterprise, it claims the

power to provide an understanding of every question through its own internal

resources, using the rationalization and interpretation techniques we saw earlier in

norm-centered scholarship.

Since the law does not include inherent content about factual issues involving the

cases presented to it – such as the demographics of crime, chemistry in drug cases or

psychology in criminal insanity defense cases – it leads a dialogue with other

disciplines, characterized by “normative closure” and “cognitive openness”. While

borrowing knowledge from other disciplines, the law does not use these disciplines in

their original form, but assimilates the external concepts according to law’s own rules,

to form its own categories and principles, and in the process creates an internal-legal

version of them. In this way, the law does what Fish (1991) calls “an amazing trick”:

it supplies its own legitimacy and its own content, assisted by its own versions of

some external concepts, but ultimately using internal mechanisms for their formation

and application.

The reflective nature of discourse-centered scholarship yields a unique, nonlinear

research trajectory, as presented in flowchart 3.

Flowchart 3: Discourse-centered scholarship research design

The methodological tools of discursive scholarship are similar and dissimilar to those

of practice scholarship. Like practice-centered scholars, discursive scholars are likely

to collect court decisions, work with archival materials, and analyze linguistic patterns

in courtroom proceedings. However, these methods do not serve discursive scholars in

a traditional ethnographic way; they aim to extract the stories and truths told in

different communications and texts about crime and criminal justice policy. When

analyzing archival materials, they do not seek to tell the truth about the development

of a criminal offense or a courtroom practice; they seek to identify the emergence of

ideas and their relationship to policies. Because of the importance of identifying ideas

and stories in different settings and communications, discourse-centered scholarship

about the criminal justice system does not always focus on the courtroom in itself.

Some studies, like Jonathan Simon’s analysis of the reconstruction of Lee Harvey

Oswald’s life in the commission report following the murder of President Kennedy

(Simon, 1998), focus on examining the narrative of a single event and on identifying

GenealogyCommunications/ narrative/ discourseMultiple sites

Political initiativesSocioeconomic conditionsPolicies/solutions to problemtechnologies

Definition of problemDefinition of offenderInteractions with other perceptions of problemRelevant disciplinesRelevant dichotomies

the ideological components surrounding it. However, other works in this tradition

broaden their methodological scope. Stanley Cohen’s Visions of Social Control

(Cohen, 1985), for example, identifies different currents and discourses in criminal

justice policy, marking the positivist/disciplinary/professional period and its follower,

the period of decarceration and decentralization. Rather than examining the “true”

nature of crime and the “optimal” type of criminal justice policy, Cohen examines the

different stories told over time by professionals and scholars about crime and policy.

Similarly, Feeley and Simon’s analysis of the emergence of risk strategies in crime

control (M. Feeley & Simon, 1992) demonstrate how the discourse of risk, and the

knowledge of prevention, have permeated criminal justice policy. Newer works, such

as David Garland’s The Culture of control (Garland, 2001) and Simon’s forthcoming

Governing Through Crime (Simon, 2007), also examine the criminal justice system in

its entirety, linking courtroom practices to risk-detection policies to privatized

policing to increasing prison populations.

Discourse-centered scholarship has a complex relationship with ideology. For

practice-centered scholars, critiquing the system was almost a professional

requirement (Cohen, 1988); by contrast, since discourse-centered scholarship sets out

to document the creation of, rather than espouse, ideology, one expects to find

different theories, and law enforcement plans, discussed with the same air of

detachment. Nevertheless, discursive materials are often read as offering an

“unexpected” critique of liberal reformers. While some of this could stem from

genuine critique “hidden” beneath the studied “surface” of knowledge and

communication, these readings might also reflect the disappointment of practice-

centered scholarship with the fact that its “natural” ally against norm-centered

scholarship falls short of favoring frameworks of liberal reform to frameworks of

rational choice. In any case, the complexity of theory/ideology connections can yield

two types of criticism against discourse-centered scholarship: its disconnect from

ideology, and therefore hesitation to “plunge” and offer an account of reality

congruent with a world-view about criminal justice, or its hidden commitment to

certain ideologies under a cloak of detachment and discourse analysis.

Another theoretical critique leveled at discursive scholarship might be its tendency

toward abstractions. While practice-centered scholarship can never grasp the entire set

of complex variables that account for, say, a sentencing policy, merely studying

sentences for “what they say” might be more accurate, but is less specific and

therefore, in some ways, less informative. Methodologically, discursive scholarship

often produces less specific observations on the legal system because it studies broad

systemic changes rather than focusing on one or two phenomena. That is, looking at

the forest (the broad realm of different criminologies, victimologies, actuarial criminal

justice, etc) does not enable us to say anything concrete about the trees (bureaucracy,

repeat playing, racial discrimination, etc).

Discursive theories face a significant challenge when asked for policy suggestions.

The lack of commitment to ideology is not conducive to espousing improvements.

After all, if there is no racial discrimination within criminal courts, but merely a

“discourse of racial discrimination”, there cannot be suggestions for improving it.

Foucault himself was well aware of this problem and rejected criticicisms:

The necessity of reform mustn’t be allowed to become a form of blackmail serving to limit, reduce or halt the exercise of criticism. Under no circumstances should one pay attention to those who tell one: ‘Don’t criticize, since you’re not capable of carrying out a reform’. That’s ministerial cabinet talk. Critique

doesn’t have to be the premise of a deduction which concludes: this then is what needs to be done. It should be an instrument for those who fight, those who resist and refuse what is. Its use should be in processes of conflict and confrontation, essays in refusal. It doesn’t have to lay down the law for the law. It isn’t a stage in a programming. It is a challenge directed to what is. (Foucault, 1991c: 84)

E. Breaking the Transitions’ Boundaries: Hybrid Designs

One of the ways to overcome the discontents with each of the three frameworks is to

create hybrid designs, which draw from different theoretical “families” and aim to

combine their insights. The impact of such hybrids across the norm/practice divide

has been quite remarkable across disciplines. For example, a series of studies

influenced by Packer’s Two Models of the Criminal Process (Packer, 1968) (Beloof,

1999) (Roach, 1999) provide frameworks that “play” just as well with both norm-

centered scholarship’s value balancing act as they do with organizational analysis of

courtroom dynamics. Similarly, in recent years, some norm-centered work has

incorporated fact-based realities about the criminal justice system. Israel’s new

procedural rules regulating “plea days” are an example of the system’s admission of

its reliance on negotiation and plea bargaining, possibly made better by being out in

the open rather than undocumented by law. These incorporations of fact and norm,

not without their complications and inconsistencies, are often made possible through

interdisciplinary collaboration between lawyers and social scientists.

Hybrids exist across the practice/discourse divide, too. For example, several studies

of the etiology of criminalization, or of criminal practices, rely on discourse to

understand how certain groups came to be discriminated against in criminal law and

process (Duster, 1970). Another approach acknowledges that law itself accounts for

legal practices, and examines which groups have access to discourse, and whether the

discourse of law is skewed in favor of certain legal outcomes (see, for example,

McBarnet’s 1981 classic on conviction). The advantage of paying attention to

discourse when studying practices also has a policy component; it makes us aware of

the boundaries and limitations of law, and, paraphrasing Michael King, can provide

valuable advise on how to “[persuade] the legal system to adopt their particular vision

(whether moral or political) of what is good and bad. . . and [how to justify] that

vision in ways which have meaning for law’s normative operation” (King, 1998: 13).

While each framework has shortcomings, their existence within the broader “tribe” of

scholarship interested in the criminal justice system has made for a rich tapestry of

studies, debates and ideas floating in the field, and, at least for me, a relative

newcomer, has made this an extremely intellectually exciting family to belong to. The

possibilities that hybrid frameworks offer for understanding the criminal process and

for dialogue between disciplines, and the promise of future transitions and theoretical

developments, make me wonder, in the words of Mrs. Bridges, the cook from

Upstairs Downstairs: “Whatever shall we come up with next?”

References

Abel, R. (1973). Law Books and Books About Law. Stanford Law Review, 26, 175-239.

Anderson, E. (2000). Beyond Homo Economicus: New Developments in Theories of Social Norms. Philosophy and Public Affairs, 29, 170.

Auerbach, C. A. (1966). Legal Tasks for the Sociologists. Law & Society Review, 1, 92-104.

Balbus, I. D. (1973). The Dialectics of Legal Repression: Black Rebels before the American Criminal Courts. New York: Russell Sage Foundation.

Beccaria, C. (1988). On Crimes and Punishment (H. Paolucci, Trans.). New York: Macmillan Publishing Company.

Becker, G. S. (1968). Crime and Punishment: An Economic Approach. Journal of Political Economics, 76, 169-217.

Becker, H. (1963). Outsiders. New York: The Free Press.

Beloof, D. E. (1999). The Third Model of Criminal Process: The Victim Participation Model. Utah Law Review, 1999, 289.

Bentham, J., Burns, J. H., & Hart, H. L. A. (1996[1780]). An Introduction to the Principles of Morals and Legislation. Oxford: Clarendon Press.

Berkovitz, L., & Walker, N. (1967). Laws and Moral Judgments. Sociometry, 30(410).

Blumberg, A. (1967). The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession. Law and Society Review, 1, 15.

Bogoch, B., & Don-Yichya, R. (1999). Gender and Law Discrimination against Women in Israeli Courts. Jerusalem: Jerusalem Institute for Israel Research.

Chambliss, W. J. (1964). A Sociological Analysis of the Law of Vagrancy. Social Problems, 12(1), 67-77.

Cohen, S. (1985). Visions of Social Control : Crime, Punishment, and Classification. Cambridge and New York: B. Blackwell.

Cohen, S. (1988). Against Criminology. New York: Polity Press.

Comack, E. (1985). The Origins of Canadian Drug Legislation: Labelling versus Class Analysis. In T. Fleming (Ed.), The New Criminologies in Canada. Toronto: Oxford University Press.

Cooter, R., & Ulen, T. (2000). Law and Economics (3rd ed.). Reading, Mass.: Addison-Wesley.

Daly, K. (1994). Gender, crime, and punishment. New Haven: Yale University Press.

Donohue, J. J. I. (1988). Law and Economics: The Road Not Taken. Law & Society Review, 22(5), 903-926.

Dressler, J., & Michaels, A. C. (2005). Understanding Criminal Procedure. New York: LexisNexis.

Duster, T. (1970). The Legislation of Morality: Law, Drugs, and Moral Judgment. New York: Free Press.

Dworkin, R. (1988). Law's Empire. Cambridge: Belknap Press.

Ehrlich, I. (1972). The Deterrent Effect of Criminal Law Enforcement. Journal of Legal Studies, L(2), 259-276.

Eisenstein, J., Flemming, R. B., & Nardulli, P. F. (1988). The Contours of Justice: Communities and their Courts. Boston and Toronto: Little, Brown and Company.

Eisenstein, J., & Jacob, H. (1977). Felony Justice: An Organizational Analysis of Criminal Courts. Boston and Toronto: Little, Brown and Company.

Ellickson, R. C. (1991). Order Without Law: How Neighbors Settle Disputes. Cambridge: Harvard Univesity Press.

Ellickson, R. C. (1998). Social Norms, Social Meaning, and the Economic Analysis of Law: Law and Economics Discovers Social Norms. Journal of Legal Studies, 27, 537-552.

Emmelman, D. S. (1996). Trial by Plea Bargaining: Case Settlement as a Product of Recursive Decision Making. Law and Society Review, 30(2), 335-360.

Emmelman, D. S. (2003). Justice for the Poor: A Study of Criminal Defense Work. Dartmouth: Ashgate.

Feeley, M. (1979). The Process is the Punishment : Handling Cases in a Lower Criminal Court. New York: Russell Sage Foundation.

Feeley, M. (1982). Plea Bargaining and the Structure of the Criminal Process. The Justice System Journal, 7, 338.

Feeley, M., & Simon, J. (1992). The New Penology: Notes on the Emerging Strategy of Corrections and its Implications. Criminology, 30, 449-474.

Feeley, M. M. (1973). Two Models of the Criminal Justice System: An Organizational Perspective. Law and Society Review, 7(3), 407-425.

Feller, S. Z. (1984). Foundations of Criminal Law. Jerusalem: The Saker Institute (Hebrew).

Fish, S. (1991). The Law Wishes to Have a Formal Existence. In A. Sarat & T. R. Kearns (Eds.), The Fate of Law. Ann Arbor: University of Michigan Press.

Foucault, M. (1979). Discipline and Punish: The Birth of the Prison (A. Sheridan, Trans.). New York: Vintage Books.

Foucault, M. (1991). Governmentality. In G. Burchell, C. Gordon & P. Miller (Eds.), The Foucault Effect: Studies in Governmentality (pp. 87-104). Chicago: University of Chicago Press.

Garland, D. (2001). The Culture of Control : Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press.

Genovese, E. D. (1976). The Hegemonic Function of the Law. In E. D. Genovese (Ed.), Roll, Jordan, Roll. New York: Pantheon Books.

Gramsick, H. G., & Bursik, R. J., Jr. (1990). Conscience, Significant Others, and Rational Choice: Extending the Deterrence Model. Law and Society Review, 24, 837-861.

Gusfield, J. R. (1986). Symbolic crusade : status politics and the American temperance movement (2nd ed.). Urbana: University of Illinois Press.

Hart, H. L. A. (1997). The Concept of Law (2nd ed.). Oxford: Clarendon.

Hawkins, D. F. (1987). Beyond Anomalies: Rethinking the Conflict Perspective on Race and Criminal Punishment. Social Forces, 65(3), 719-745.

Hay, D. (1975). Property, Authority and the Criminal Law. In D. Hay, P. Linebaugh, J. G. Rule, E. P. Thompson & C. Winslow (Eds.), Albion's Fatal Tree: Crime and Society in Eighteenth Century England. New York: Pantheon Books.

Heuman, M. (2001). Plea Bargaining. In N. Smelser & P. Baltes (Eds.), International Encyclopedia of the Social and Behavioral Sciences. London and Amsterdam: Elsevier.

Hudson, B. (1996). Race, crime, and justice. Brookfield, Vt.: Dartmouth.

Hunt, A., & Wickham, G. (1994). Foucault and Law: Towards a Sociology of Law as Governance. London and Boulder: Pluto Press.

Kadish, S. H., & Schulhofer, S. J. (2001). Criminal Law and Its Processes: Cases and Materials (Casebook) (7th ed.). Aspen: Aspen Publishers.

Karp, Y. (1995). Criminal Law - The Janus of Human Rights: Constitutionalization in Light of the Human Dignity and Freedom Basic Act של זכויות האדם HaPraklit, 42, 64.

Kelsen, H. (1981). Pure Theory of Law. Berkeley: University of California Press.

Kennedy, D. (1998). Legal Education as Training for Hierarchy. In D. Kairys (Ed.), The Politics of Law: A Progressive Critique (pp. 54-78). New York: Basic Books.

Kremnitzer, M. (1980). Creating True Alternatives for Finding The Truth, Or Is It the Time To End the Game Season (Heb.). Mishpatim.

Langbein, J. (1979). Land Without Plea Bargaining: How the Germans Do It. Michigan Law Review, 78, 204-225.

Levine, F. J. (1990). Goose Bumps and "The Search for Signs of Intelligent life" in Sociolegal Studies: After Twenty-Five Years. Law & Society Review, 24(1), 7-34.

Luhmann, N. (2004). Law as a Social System (K. A. Ziegert, Trans.). Oxford and New York: Oxford University Press.

Luhmann, N., & Baecker, D. (1995). Social Systems (J. J. Bednarz, Trans.). Palo Alto: Stanford University Press.

Maguire, M., Morgan, R., & Reiner, R. (Eds.). (2002). The Oxford Handbook of Criminology. Oxford: Oxford University Press.

Maynard, D. W. (1984). Inside plea bargaining : the language of negotiation. New York: Plenum Press.

Maynard, D. W. (1988). Language, Interaction, and Social Problems. Social Problems, 35(4), 311-334.

McBarnet, D. J. (1981). Conviction: Law, the State and the Construction of Justice. London: Macmillan.

McLaughlin, E., Muncie, J., & Hughes, G. (Eds.). (2003). Criminological Perspectives (2nd Edition ed.). London: Sage Publications.

Nardulli, P. F. (1978). The Courtroom Elite: An Organizational Perspective on Criminal Justice. Cambridge: Ballinger Publishing Company.

Noonan, J. T. (1976). Persons and masks of the law : Cardozo, Holmes, Jefferson, and Wythe as makers of the masks. New York: Farrar Straus and Giroux.

Packer, H. L. (1968). The limits of the criminal sanction. Stanford, Calif.,: Stanford University Press.

Platt, A. (1974). The Triumph of Benevolence: The Origins of the Juvenile Justice System in the United States. In R. Quinney (Ed.), Criminal Justice in America. Boston: Little Brown.

Pound, R. (1910). Law in Books and Law in Action. American Law Review, 44, 12.

Quinney, R. (1977). Class, state, and crime : on the theory and practice of criminal justice. New York: D. McKay Co.

Rattner, A., & Fischman, G. (1997). Justice for All? Jews and Arabs in the Israeli Criminal Justice System. Westport: Praeger.

Roach, K. (1999). Four Models of the Criminal Process. Journal of Criminal Law and Criminology 89.

Rosen, R. (1982). The Lost Sisterhood: Prostitution in America, 1900-1918. Baltimore: Johns Hopkins University Press.

Rostain, T. (2000). Educating Homo Economicus: Cautionary Notes on the New Behavioral Law and Economics Movement. Law and Society Review, 34(4), 973-1006.

Rothman, D. (1974). The Invention of the Penitentiary. In R. Quinney (Ed.), Criminal Justice in America. Boston: Little Brown.

Rothman, D. J. (1980). Conscience and convenience : the asylum and its alternatives in progressive America (1st ed.). Boston: Little Brown.

Rusche, G., & Kirchheimer, O. (1939). Punishment and social structure. New York: Columbia University Press.

Sarat, A. (1998). Crossing boundaries : traditions and transformations in law and society research. Evanston, Ill. Northwestern University Press: American Bar Association.

Sarat, A., & Kearns, T. R. (1993). Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life. In A. Sarat & T. R. Kearns (Eds.), Law in Everyday Life (pp. 21-61). Ann Arbor: University of Michigan Press.

Simon, J. (1993). Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990. Chicago: University of Chicago Press.

Simon, J. (1998). Ghosts of the Disciplinary Machine: Lee Harvey Oswald, Life-History, and the Truth of Crime. Yale Journal of Law and the Humanities, 10(1), 75-113.

Simon, J. (2004). Thinking about Criminal Justice: Sociolegal Expertise and the Modernization of American Criminal Justice. In A. Sarat (Ed.), Blackwell Companion to Law and Society. London: Blackwell.

Simon, J. (2007). Governing Through Crime. New York: Oxford University Press (forthcoming).

Skolnick, J. H. (1966). Social Research on Legality: A Reply to Auerbach. Law & Society Review, 1(1), 105-110.

Small, S. J. (1978). Canadian Narcotics Legislation, 1908-1923: A Conflict Model Interpretation. In W. K. Greenaway & S. L. Brickey (Eds.), Law and Social Control in Canada. Scarborough: Prentice Hall of Canada.

Sudnow, D. (1965). Normal Crimes: Sociological Features of the Penal Code in a Public Defender's Office. Social Problems, 12, 255-276.

Taylor, I. R., Walton, P., & Young, J. (1973). The New Criminology: For a Social Theory of Deviance. London: Routledge and Kegan Paul.

Teubner, G. (1983). Substantive and Reflexive Elements in Modern Law. Law and Society Review, 17, 239.

Teubner, G. (1989). How the Law Thinks: Toward a Constructivist Epistemology of Law. Law and Society Review, 23(5), 727-758.

Thompson, E. P. (1975). Whigs and hunters : the origin of the Black act (1st American ed.). New York: Pantheon Books.

Trubek, D. (1990). Back to the Future: The Short, Happy Life of the Law and Society Movement. Florida State University Law Review, 18(1), 1-55.

Turk, A. T. (1969). Criminality and the Legal Order. Chicago: Rand McNally.

Twining, W., & Miers, D. (1999). How to Do Things With Rules: A Primer of Interpretation (4th ed.). London, Edinburgh, Dublin: Butterworths.

Tyler, T. (1990). Why People Obey The Law. New Haven: Yale University Press.

Tyler, T., Boeckmann, R. J., Smith, H. J., & Huo, Y. J. (1998). Social Justice in a Diverse Society. Boulder, Colorado: Westview Press.

Vandevelde, K. J. (1996). Thinking Like a Lawyer: An Introduction to Legal Reasoning. Boulder: Westview Press.

Vold, G. B., Bernard, T. J., & Snipes, J. B. (2002). Theoretical Criminology (5th Edition ed.). New York: Oxford University Press.

Welch, S., Combs, M., & Gruhl, J. (1988). Do Black Judges Make a Difference? American Journal of Political Science, 32(1), 126-136.