7th Global Meeting on Law and Society. Abstracts of the papers presented by Members of the Oñati Community (2nd part)
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Judicial Dialogues and the Rule of Law. Joxerramon Bengoetxea (University of the Basque Country, UPV/EHU and Oñati IISL)
My contribution is based on a recently published monograph that analyzes judicial dialogue, locating it in judicial governance studies and research on the Judiciary-. It proposes an innovative taxonomic typology of judicial dialogues. The presentation for the Lisbon Conference focuses on its European dimension, especially when a clash appears between the Rule of Law in different legal systems. This is the question of primacy, and gives rise to the debate on Constitutional Pluralism. Judicial Dialogue has sometimes been presented as a possible remedy to the clashes (the rage) produced by alternative claims of supremacy (and sovereignty).
A sort of constitutional pluralism has emerged in the EU following the doctrine of the primacy of EU law, as the uniform law of the Union, and the reactions against this doctrine originating in some national courts and juridical circles. This is not a new phenomenon and Neil MacCormick coined the theory of mild or soft constitutional pluralism to understand it. Pluralist predicaments are hard to reconcile with hierarchical and pyramidal Western legal theory, and this tension is likely to create stress for national legal and judicial cultures and national constitutionalism.
Amongst the strategies developed by jurists to deal with this tension like comity, subsidiarity, margin of appreciation, local standards, conform interpretation, indirect effect, horizontal effects of fundamental rights, effet utile, or national constitutional identity, this contribution focuses on judicial dialogues.
The concept, typology and functions of "judicial dialogue" and the methodology and sociolegal and jurisprudential theories required for their analysis and appraisal show their potential in dealing with the stress of competing claims and clashes on who has the competence over competence (K-K). To analyze judicial dialogue, it is necessary to address justice from a constitutional and socio-legal governance perspective, where the social sciences complement the legal analysis, based on the institutional theory of law (MacCormick).
The rapprochement between sociology and legal theory uses a realist concept of law as an institutional normative order(ing), which addresses norms and conflicts within the realm of practical reason. A hermeneutic understanding is necessary to understand Judges and Judging —as a power and as an institution— and the practice of judicial dialogue, and requires an epistemology that overcomes the dialectical tension between legal sociology and dogmatic theories of law. Open to Justice and to the theories of the Judiciary, as its institutional manifestation, this approach explains Judicial dialogue as an epiphenomenon or side effect of Justice, as a power and as a field.
Law, politics and justice are intertwined, as public forums of Practical Reason, something that reveals the difficult cases that are settled in the judicial vertices (apex), raising instances of judicial dialogue, of all sorts. The rich diversity of judicial dialogues calls for a systematic focus on the different categories of judicial dialogue in Europe.
Ultimately, the legal culture of the judicial, constitutional and juridical communities involved will determine their success or failure in tackling such stressful situations of contestation of authority.
Bridging Legal Theory and Socio-Legal Studies in the Iberian context. Joxerramon Bengoetxea (University of the Basque Country, UPV/EHU and Oñati IISL)
My presentation has three points. The first deals with epistemic communities. The second with marginality of sociolegal knowledge.
As regards epistemic communities, while there is there is no centre of any significant size in Spain, comparable to eg Lund's Department of Sociology of Law, or to Coimbra, there is the interesting case of the Oñati International Institute for the Sociology of Law, and its Master, Workshops, Publñications, Visiting Schemes and Master, and the Oñati Community virtual network of sociolegal scholars; and there are some centers where sociolegal studies are carried out with that label (Barcelona, Zaragoza, Carlos III Universities, or Girona for Legal Cultures). There are interesting studies in different legal disciplines, away from traditional dogmatics. Especially the development of criminology and economic analysis of law. But this is not systematic. The Spanish law degree syllabus does not give any weight to Law & Society, nor Law & Economics for that matter. Only under the cloak of Legal Theory can Sociology of Law have a presence. Even less so regarding the professional Master for Law School Practice, or that for the School of the Judiciary. Still much to be done.
Secondly, the marginality, critical focus and exclusion of sociolegal theory in the formation of the internal legal culture. There are two major gaps in Spanish legal education: sociolegal studies and comparative law. Big challenge for Jurisprudence and Legal Theory. Even Legal Theory (Jurisprudence) or Legal History are marginal disciplines. There could be many more bridges between the marginal legal subjects. Behind these disciplinary confrontations there are issues of power, and sites of research; for instance what sort of career paths are open to researchers and who decides on the law curriculum? Who is in charge of granting access to the legal professions and what is studied there? Law departments, Law Faculties v Law Schools, State exam for legal practice, Access to Judicial school, and similar issues. L&S has some presence at the earlier formative years, as marginal as history, comparative law, or Jurisprudence.
Thirdly, the need for bridges between Jurisprudence and Sociology of Law, is to be found in the need for a solid conceptual foundation and in awareness of law in action.How far apart are L&S v Jurisprudence? Is it possible to build bridges?
1. specific topics legal theory and sociolegal studies allowing for convergence: bioethics, criminology and punishment, the market (labour and property), coloniality, and so many more
2. approaches to law-making (drafting), and judicial decision-making; collaboration between legal theory, political science, sociolegal studies is possible and can yield very useful results
3. the more philosophical issues: here is where I detect the greatest gap. Analytical jurisprudence has sometimes gone very formal, and sociolegal studies very specific and casuistic, almost dictated by the rigours of research methods, which consider theoretical issues are not sociolegal. Bridges are necessary here, much more interaction, more feedback between the disciplines, also with comparative law, legal geography and legal history.
The Cartography of repression: an analysis of the clash with the drugs trade in the city of Curitiba. Laís Gorski (Centro de Estudos Sociais da Universidade de Coimbra, CES-UC)
The study seeks to demonstrate the main problems raised by the paradigm of Political Sociology in the Penal Field, namely in the sphere of the dysfunctionalities and the structural contradictions in the systems of penal persecution, to be revisited in Brazil in light of the very application of the current criminal legislation. To do so, we propose a critical reflection on prisons notorious for the crime of drug trafficking, before analyzing data obtained by means of observations and empirical studies carried out at the 2nd Police Station of the City of Curitiba in Paraná. The data collected on the police’s activities points to a selectivity in criminal prosecution across different levels, to have invariably led to the individualization of certain punishable social groups.
“After Speaking With the Judge, My Enrollment Fee Was Paid”: the Use of Constitutional Remedies in Colombia’s Educational System and Transformative Law in Latin America. Markus Ciesielski (Justus-Liebig-Universität Gießen)
Latin America is characterized by extreme social inequalities since colonial times. Education alleviated extreme poverty. Nevertheless, education is not reducing substantially the economic, cultural, and ethnic disadvantages of historically marginalized actors and communities. Racial and gender discriminations persist although education is a mostly region-wide justiciable fundamental right. This leaves unresolved a central topic of socio-legal scholars: The social transformation through law. I argue that a constructivist approach is necessary for research on the transformative effects of law. My argument relies on an exploratory study on the Colombian acción de tutela. The tutela is a frequently used remedy for fundamental rights (Lehoucq and Taylor 2020). It is commonly used by marginalized actors. I will present a qualitative analysis based on about 30 semi-structured interviews conducted in 2021. Interviews were selected out of over 140 case files provided by Colombian courts. I interviewed students from ethnically diverse regions. They claimed the right to education between 2016 and 2020. The analysis of the qualitative interview data shows transformative effects of law. Students reconstruct imaginaries of educational inequalities by using the tutela-remedy. Tutela-related events like the phone call of a judge or the tutela-sentence can support but also undermine what students expect from their education. Colleges, universities, public-school administrations, and institutions for scholarships become actors in these imaginaries on the right to education. With these findings I suggest supplementing existing research on legal transformation. The results underline the importance of concepts like habitus, legal framing, and legal consciousness. These concepts contribute to a critical examination of the use of legal remedies by historically marginalized actors and communities in the global south.
Into the Looking Glass: The Construction of Absence in Law and Legal Education. Annette Lansink (University of Venda, South Africa)
This paper examines the renewed calls for the decolonisation of law and legal education in South Africa. It discusses the process of deconstructing legal knowledge and valorising subjugated African knowledges as an act of epistemological liberation and transformation without essentialising identities. It does so, aligned to the conference theme of rage, reckoning and remedy, within the context of reconciliation and the lacunae in the implementation of transitional justice. The paper further endeavours to examine how legal knowledge can be contextualised and respond to the social realities of communities without losing sight of the contemporary imperative of internationalisation in a global world. This paper accordingly argues that universities should engage the legitimate calls for decolonisation and address issues of epistemic justice in a poly-epistemic and transcultural world as a way of redressing the constructed absences of African knowledges and experiences in law and legal education.