Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Law's Empire

Aside from possible income effects, measures of the maximum amounts people will pay to avoid a loss and the minimum compensation necessary for them to accept it are generally assumed to be equivalent. Unexpectedly wide variations between these sums, however, have been noted in survey responses to hypothetical options. This paper reports the results of a series of experiments that confronted people with actual money payments and cash compensations. The results indicate that the compensation measure of value seems to exceed significantly the willingness to pay measure, which would appear to call into some question various rules of entitlement, damage assessments, and interpretations of indifference curves.

Willingness to Pay and Compensation Demanded: Experimental Evidence of an Unexpected Disparity in Measures of Value

The rule of law is the most important political ideal today, yet there is much confusion about what it means and how it works. This 2004 book explores the history, politics, and theory surrounding the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory and liberal political systems. The author outlines the concerns of Western conservatives about the decline of the rule of law and suggests reasons why the radical Left have promoted this decline. Two basic theoretical streams of the rule of law are then presented, with an examination of the strengths and weaknesses of each. The book examines the rule of law on a global level, and concludes by answering the question of whether the rule of law is a universal human good.

On the Rule of Law: History, Politics, Theory

Based on a survey of empirical research on gender in organizations published over a twenty-year period, we argue that, cumulatively, studies of sex difference tend to neglect organizational features. Drawing on concepts from feminist theory about gender as a system, as identity, and as power, we outline how greater attention to the links between gender identity and organizational structures and practices would enrich the field. We conclude with a research agenda that retains a focus on the individual while incorporating an analysis of the impact of organizations.

A feminist analysis of organizational research on sex differences

A collection of essays specifically about women and welfare in the United States. A state-of-the-art introduction to how welfare programmes affect women and how gender relations have influenced the structure of welfare programmes, it is intended both for general readers and as a text in a variety of sociology, history, political science, social work, and women's studies courses. The book begins with a review essay by Linda Gordon discussing current scholarship about women and welfare. The chapters that follow explore discrimination against women inherent in many welfare programmes; the ways in which welfare programmes reinforce basic gender patterns in society; the contribution of organized, activist women to the development of welfare programmes, and race and class differences in the welfare system. By giving readers access to a wide range of thinking about women and welfare, this book will help bring gender to the center of welfare scholarship and policy making, and welfare issues to the center of feminist thinking and action.

Women, the State, and Welfare

The jurisprudence of rules is the body of legal thought that deals explicitly with the question of legal form. In private law, modern legal thought begins with the rejection of Classical individualism. The rhetoric of individualism so thoroughly dominates legal discourse that it is difficult even to identify a counterethic. Eighteenth century common law thinking does not seem to have been afflicted with a sense of conflict between two legal ideals. Modern legal thought is preoccupied with “competing policies,” conflicting “value judgments” and the idea of a purposive legal order, and to that extent has much in common with pre-Civil War thinking. The correspondence between the formal and substantive economic arguments is more intricate and harder to grasp than the moral debate. There is a connection, in the rhetoric of private law, between individualism and a preference for rules, and between altruism and a preference for standards.

Form and Substance in Private Law Adjudication

J don't intend to provide any background information on Black? stone, except to say that he published his treatise in England be? tween 1765 and 1769, and that aside from Chancellor Kent's Commentaries on the Law of the United States, published between 1820 and 1825, Blackstone's work is the only systematic attempt that has been made to present a theory of the whole common law system. Duncan Kennedy.1

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The Structure of Blackstone's Commentaries

ly than appeals to the raw equities immanent in \"the facts.\" Policy argument is \"second order\" in relation to rule application or argument from precedent. It presupposes conscious choice about how the structure of the field should look, as opposed to simple subsumption of the facts to a norm that I grasp non-reflectively as part of a gestalt. The arguer can pick and choose from a truly enormous repertoire of typical policy arguments and modify what he finds to fit the case at hand. The arguments come in matched contrary pairs, like certainty vs. flexibility, security vs. freedom of action, property as incentive to labor vs. property as incipient monopoly, no liability without fault vs. as between two innocents he who caused the damage should pay, the supremacy clause vs. local initiative, and so on. A policy is not invalidated just because I ignore it in a case where it arguably applies. Our rough notion is that the two sides of the matched pair \"differ in strength\" from case to case. We might see the property-as-incentive-to-labor argument as very strong if the issue is whether there should be any private rights at all in mechanisms of interstate commerce, but as quite weak if the question is whether there should be a right to prevent peaceful individual picketing of an interstate bus company involved in a labor dispute. The moment when I switch from one of the matched pairs to the other in response to a change in the fact-situation can be quite dramatic. In this case, I might firmly believe that the interests in security and peaceful access to public spaces strongly support state law criminal sanctions against the lie-in. I might then turn around and argue against a federal injunction of the lie-in, on the ground that people should have a right to nonviolent civil disobedient protest, even if it inconveniences the public and the employer, and that repressive measures will make violence more rather than less likely. In a typical legal argument, policies are elaborated and strongly asserted without regard to their matched pairs. When I argue for state law criminal penalties, I don't have to explain, either as judge or as advocate, the rational basis of my endorsement of \"nip it in the bud\" here, and my contrary endorsement of \"repression breeds violence\" when we get to the injunction. In a sense, then, the practice of legal arguers (lawyers, judges, treatise writers) is endlessly contradictory. I assert my policy as \"valid\" and as \"requiring\" an outcome, and then blithely reject it, and, in the next case, endorse its exactly matching opposite, without giving any meta-level explanation of what keys me into one side or the other. From the inside, however, I know from the beginning that this is just \"the way we do\" legal argument. I don't take the surface claim that the policy is \"valid\" and \"requires\" the outcome seriously at all. I work with a model of the opposing policies as forces or vectors, each of which has some \"pull on any given fact-situation. They seem logically contradictory (how can I believe, at the same time. that \"there should be no liability without fault,\" and that \"as between two innocents he who caused the damage should pay\") or so indeterminate that they can serve only as after-the-fact rationalizations of decisions reached on other grounds (who knows whether the injunction will \"nip violence in the bud\" or \"just drive it underground and make it Critical Legal Studies ______________________________________________________________________________ 62 Critical Phenomenology of Judging 535 worse”?). But there is a sense in which both policies are valid at the same time, in every case. The question is which one turns out to be \"stronger,\" or to weigh more in a \"balancing test\" applied to these particular facts, rather than which is correct in the abstract. We can represent the process of arranging cases in a field, and the process of fixing a boundary between permitted and forbidden acts, in terms of this imagery of vectors and balancing. For example, the imaginary mass picketing and individual picketing cases discussed earlier had fact situations and holdings, but they also \"involved\" or \"implicated\" various policies. The mass picketing case implicated the general social policy in favor of political association and the general social policy against the use of force to resolve disputes. (Each case implicates as many policies as I can plausibly think up. Those mentioned here are illustrative, not exhaustive.) Suppose we see the lie-in, in relation to mass picketing, as a \"better\" First Amendment case, and as a less serious interference with the employer's use of the m.o.p. during a strike. The \"second order\" interpretation of this intuitive ordering is that pro-speech policies apply more strongly, and pro-property policies less strongly, than in the mass picketing case. As we move from fact-situation to fact-situation across the field, the speech policy gets weaker, and the property policy stronger, until at the boundary they are in equilibrium. At this point a very small change in the relative forces of the policies produces a dramatic change in result. We \"draw the line\" and treat cases beyond the line repressively. What this means is that we have to add to our model of the field of law the notion that, at every point in the field, contradictory policies exert different levels of force. Boundary lines in the field represent points of equilibrium of opposing forces. At points not on boundaries, one or another set of policies predominates. The policies are to be understood as gradients; they are strongest in the \"core,\" where a given general rule seems utterly obvious in its application and also utterly \"appropriate as a matter of social policy.\" The argument set supporting the general rule diminishes in force as we move from the core outward toward the periphery, and ultimately to a boundary with another general rule. The boundary appears to me as \"there\" in three quite different ways. First, it is a line, a rule that was implicit in the statement of the general rule. For example, I may see the idea that there shall be no laws against \"free speech\" as implicitly including nonverbal expression. Second, the boundary is a line running through all the limiting cases. Suppose that individual but not mass picketing is all right; that threats of non-association with substitute workers but not threats to call demand notes are all right. The boundary \"connects the dots.\" Third, as we have just seen, the boundary is like the line in a magnetic field formed by iron filings exactly balanced between two distant magnets. State law criminal penalties against a lie-in are desirable and don't violate the first amendment, but the addition of a federal injunction is undesirable and would be unconstitutional, say, because the injunction is just a little bit \"too much.\" Critical Legal Studies ______________________________________________________________________________ 63 536 Journal of Legal Education We have already discussed legal argument as the restatement of general rules and the re-selection of facts so that a case that initially appeared \"covered\" by rule A turns out to be covered by rule B. And we have discussed the manipulation of the facts and holdings of precedents to redefine the boundary. My goal in policy argument is analogous. First, I develop a potential holding for my lie-in case, such as that there shall be no federal injunction of nonviolent civil disobedient protests in labor disputes. Then I develop some policy arguments as to why this rule is preferable to an alternative (usually a straw man) or to the rule proposed by the employer. For example, I argue that if the workers feel strongly enough to undergo arrest and criminal charges, they almost certainly feel strongly enough to do something violent if they are not permitted their symbolic protest. It follows that, far from \"nipping violence in the bud,\" an injunction will likely lead to unorganized individual acts of violence, such as shooting out bus tires on the open highway. But this argument is unlikely to be enough. Once I have taken the step into the \"second order,\" forsaking the strategy of mere rule application, I evoke in the mind of my audience the whole force field of this area of law. I will now have to take steps to preserve the coherence of the overall policy \"picture.\" This means restating policy arguments in other decided cases. For example, suppose that in the mass picketing case the court justified a prohibitory rule on the ground that unless you nip violence in the bud it develops until it is unstoppable. My problem is that in the lie-in case I am arguing that worker anger makes it important to tolerate civil disobedience, and this position seems inconsistent with a \"nipping in the bud\" strategy against mass picketing. In order to restore order to the field, I will \"distinguish\" the mass picketing case as follows. Mass picketing is essentially uncontrollable and naturally tends to escalate toward violence. In the civil disobedience case, by contrast, the police exercise detailed and intense control. Though the initial emotion may be greater in the lie-in, the setting allows the release of emotion without escalation. Since the situation is already under control but still serving to release emotion, an injunction is likely to be counterproductive overkill. [Let me remind the patient reader that I have no idea whether the preceding policy arguments and distinctions are \"any good,\" that is, whether they would be persuasive to a person a little knowledgeable in the field. One begins the work of legal argument enveloped in ignorance of what the law \"is\" and with little sense of what may be the conventional wisdom about how the law works in practice. I will find out about these matters by doing research and by asking people. In consequence, I'll flatly abandon some arguments while I develop others. What I am trying to do here is d

Freedom and Constraint in Adjudication: A Critical Phenomenology.

This book explores the role of political ideology, in the simple sense of, say, "liberalism" and "conservatism," or "states' rights" and "abolitionism," in law making. I argue that judicial law making has been the vehicle of ideological projects, just as legislative work is such a vehicle, although ideologically oriented legal work is different from ideologically oriented legislative work. It is sometimes plain that judges experience themselves as constrained by the doctrinal materials to reach particular solutions, even if they work in a medium saturated with ideology. But they always aim to generate a particular rhetorical effect through this work: that of the legal necessity of their solutions without regard to ideology. They work for this effect against our knowledge of the ineradicable possibility of strategic behavior in interpretation, by which I mean the externally motivated, ideological choice to work to develop a particular solution rather than another. Adjudication has at least three ideological effects. First, the diffusion of law-making power reduces the power of ideologically organized majorities, whether liberal or conservative, to bring about significant change in any subject-matter area heavily governed by law. It empowers the legal fractions of intelligensias to decide the outcomes of ideological conflict among themselves, outside the legislative process. And it increases the appearance of naturalness, necessity, and relative justice of the status quo, whatever it may be, over what would prevail under a more transparent regime. In each case, adjudication functions to secure both particular ideological and general class interests of the intelligensia in the social and economic status quo. Adjudication also sustains the belief that rights exist. The critique of adjudication has sometimes been implicated in the loss of faith in rights. Finally, our ambivalent belief in the possibility of legal rationality reinforces the notion that there are expert discourses to which a practitioner can pledge faith, not just outside but against ideology.

Duncan Kennedy

Papers

Form and Substance in Private Law Adjudication

The Structure of Blackstone's Commentaries

Freedom and Constraint in Adjudication: A Critical Phenomenology.

A Critique of Adjudication (fin de siecle)

Legal Education and the Reproduction of Hierarchy.