scholarly journals The Foundational Lawlessness of the Law Itself: Racial Criminalization & the Punitive Roots of Punishment in America

Daedalus ◽  
2022 ◽  
Vol 151 (1) ◽  
pp. 107-120
Author(s):  
Khalil Gibran Muhammad

Abstract Empirical researchers and criminal justice practitioners have generally set aside history in exchange for behavioral models and methodologies that focus primarily on crime itself as the most measurable and verifiable driver of American punitiveness. There are innumerable legal and political questions that have arisen out of these approaches. Everything from the social construction of illegality to the politicization of punishment to the stigmatization of physical identities and social statuses have long called into question the legal structures that underpin what counts as crime and how punishment is distributed. And yet, until quite recently, the question of what history has to offer has mostly been left to historians, historically minded social scientists, critical race and ethnic studies scholars, community and prison-based activists, investigative journalists, and rights advocates. What is at stake is precisely the foundational lawlessness of the law itself. At all times, a White outlaw culture that rewarded brute force and strength of arms against racialized others unsettles basic assumptions about how we are to understand criminalization and punitiveness over time: that is, who has counted as a criminal and to what end has the state used violence or punishment?

1999 ◽  
Vol 3 (3) ◽  
pp. 234-245 ◽  
Author(s):  
Charlene L. Muehlenhard ◽  
Leigh Ann Kimes

What counts as “violence” is socially constructed, has varied over time, and reflects power relationships. Informed by social constructionism, we illustrate these points using as examples sexual violence and domestic violence. We review changes in how society and social scientists have defined and understood these topics during the last 30 years. We then discuss 3 areas of continuing controversy: who should decide if sexual or domestic violence has occurred, what to count as sexual and domestic violence, and the role of gender in defining sexual and domestic violence.


1994 ◽  
Vol 19 (04) ◽  
pp. 829-852 ◽  
Author(s):  
Lisa Frohmann ◽  
Elizabeth Mertz

As scholars and activists have addressed the problem of violence against women in the past 25 years, their efforts have increasingly attuned us to the multiple dimensions of the issue. Early activists hoped to change the structure of power relations in our society, as well as the political ideology that tolerated violence against women, through legislation, education, direct action, and direct services. This activism resulted in a plethora of changes to the legal codes and protocols relating to rape and battering. Today, social scientists and legal scholars are evaluating the effects of these reforms, questioning anew the ability of law by itself to redress societal inequalities. As they uncover the limitations of legal reforms enacted in the past two decades, scholars are turning—or returning—to ask about the social and cultural contexts within which laws are formulated, enforced, and interpreted.


2021 ◽  
pp. 8-96
Author(s):  
Polly Morgan

This chapter starts by considering how people get married, tracing the institution of marriage through history. It looks at the evolving popularity of marriage to the present day. The chapter then addresses the social and legal significance of marriage. It asks: Why does the state encourage people to marry? The chapter also looks at other ways in which relationships can be formalised under the law. Finally, the chapter turns to civil partnerships and looks at the changes in legal status to such partnerships over time. It also considers public perceptions of civil partnerships. Finally the chapter asks: Is there a future for marriage?


2004 ◽  
Vol 5 (3) ◽  
pp. 197-236 ◽  
Author(s):  
Christoph Engel

Lawyers are the engineers of the social sciences, and their doctors. Neither is good for reputation in interdisciplinary exchange. Social scientists often show contempt for a discipline that seems too close to reality to meet hard methodological standards, and too much concerned by pathologies that are beyond the reach of their methodological tools. As with many prejudices, there is a grain of truth in this one. But not all law is about making decisions and judgements in the face of a reality that is at best partly understood. The legal discipline has its own methodological standards. For the sake of internal clarity, it aims at parsimony. But modelling is not the legal path to methodological rigor. The legal equivalent boils down to one simple question: who asks whom for what? The law splits abstract problems into a series of cases. It reaches parsimony via the selection and sequence of cases. These hypothetical cases are like histological cuts through the social tissue. The legal discipline starts cutting at cases for which existing legal tools seem particularly wellsuited. If these cases are understood, the legal discipline then starts again with the more demanding ones. It is hoped that the sequence of cases leads to an understanding of situations that seemed inaccessible at the outset.


2017 ◽  
Vol 43 ◽  
pp. 401-420
Author(s):  
Jarosław Majewski

Is the idea of so-called “secondary legality” defensible?The aim of the study is critical analysis of the idea of so-called “secondary legality” of an act used by some jurists to explain types of behaviour falling into the category of circumstances excluding lawlessness of an act justification, namely to define the relation between such types of behaviour and the legal system as a whole, and the various sanctioned norms that are part of the system. First, the author examines the relation between the assumption that a type of behaviour which falls within the category of circumstances excluding lawlessness of an act constitutes a legal transgression of the sanctioned norm, and the basic assumptions made in the Polish legal culture concerning the process of creation and application of the law as well as its systematic analysis. He demonstrates that consistent use of the secondary legality category would require a considerable remodelling of these assumptions, above all, rejection of the assumption that legal norms are introduced to be met as well as all consequences stemming from this assumption as well as abandonment of the approach to the law as a set of legal norms that is internally cohesive. Next, the author analyses the internal aspects of the idea of secondary legality of an act. He demonstrates that it encompasses contradictory statements: on the one hand that justifi able behaviour constitutes socially harmful, negative and thus a typical attack on legal interest, and on the other hand that the social benefits ultimately outweigh losses in the case of justifiable behaviour. All the above justifies the author’s final conclusion that the category of secondary legality of an act is not useful.


2021 ◽  
Author(s):  
◽  
Diego Navarro

<p>For years, understanding the relationship between behaviour and cognition has been a central concern of research conducted in the social sciences. In fields as diverse as anthropology, business, medicine, and education it is widely accepted that the development of practice (as a type of behaviour), depends on a precise understanding of how thought gets carried into action. However, studies investigating the complex interplay between a learner’s cognition (i.e. thoughts, knowledge, beliefs, and feelings about L2 learning) and their behaviour (i.e. language-related activity) are only recently garnering attention. In addition, only few studies have looked at this dynamic process with adult participants beyond the language learning classroom. Framed within the context of naturalistic language learning, this investigation explores the social construction of adult (over 30 years of age) L2 learners’ cognition in an ESOL setting. Specifically it aimed to answer the following research questions:  RQ 1. What are the prior language learning experiences of a group of adult migrant learners living in New Zealand?  RQ 2. How have these prior language learning experiences influenced the construction and development of their beliefs, assumptions, knowledge (BAK) about language learning?  RQ 3. What is their perceived need for English in their current socio-cultural context?  RQ 4. How do adult migrant language learners engage in language related activities beyond the classroom?  RQ 5. How can this language learning behaviour be reflected in a model of language learner cognition?  The study combined a longitudinal, ethnographic approach, with elements of narrative and case study inquiry. Six ‘recently arrived’ (Dunstan, Roz, & Shorland, 2004a) Colombian migrants (five refugees; one immigrant) were asked to talk about and discuss both prior and current experiences learning and using an L2. Through these lengthy in-depth, conversation-like interviews conducted in Spanish (the participants’ L1), told over time, a nuanced picture of the participants’ L2-related cognition emerged. As a result, I was able to more clearly observe the dynamic process in which a language learner’s mental life both impacts and is impacted on by language-related activity throughout their day-to day interactions. The participants are seen engaging in the L2 across a range of settings including at home, the doctor’s office, supermarkets and work. Moreover, in their accounts of this engagement we see change and revision (i.e. development) in their thinking about L2 learning and themselves as language learners, as well as their feelings toward the L2, other L2s and L2 users. A single participant was selected as an exemplary case to examine in detail, and facilitate understanding of this development. A case study approach allowed for a more intricate exploration of how the interplay between thought, emotion, and context impacted on the learner’s approaches to language-related activities. Issues regarding readiness to interact in the L2, intelligibility, language variety, and aversion to the ‘sound of English’ were seen as playing significant roles in the learner’s language development. This analysis resulted in the construction of a framework depicting language learner cognition in action. In terms of implications, this research supports the case for more qualitative research in SLA which centres learners’ perspectives of their L2 related experiences, particularly when so much of what seems to be affecting learning is the learners understanding of themselves and their actions. It also argues that studies in L2 cognition should focus their investigations on the developmental processes involved in the social construction of the mental factors which impact language learning and use. Finally, while belief studies in SLA are expanding the scope of their investigations – by looking to include more emotion and other affective factors, as well as by branching out into self-related constructs such as self-concept and self-efficacy in the foreign language domain – these studies remain limited in their almost microscopic view of learners’ mental lives. The picture of cognition I offer provides a more holistic understanding of this phenomenon which helps account at a macro-level for L2 behaviour. The study also highlights the potential and power of data gathering methods which foreground the participants’ voices and ideas (i.e. in-depth, unstructured interviews told over time) – reminding us that it is important when looking for what drives language learning behaviour to consider what the learners feel and think.</p>


2005 ◽  
Vol 29 (2) ◽  
pp. 185-204 ◽  
Author(s):  
Stephen Downing

A social dimension to business development and inertia is currently acknowledged in several accounts of learning, business models, vision building, and innovation, and through more general concepts of networking, social capital, and embeddedness. Here a constructionist perspective is developed to improve our understanding of the interactions between entrepreneurs and stakeholders in all of these areas. This identifies narrative and dramatic processes that describe how notions of individual and collective identity and organization are coproduced over time. A framework is created to show how selective and emotional processes that produce storylines, emplotment, and narrative structure support sense making and action making.


1989 ◽  
Vol 31 (3) ◽  
pp. 183-204 ◽  
Author(s):  
Barry B. Levine

Under what conditions may a social scientist legitimately pass judgment on the geopolitical climate of a region? The question is not easy to answer. First, it presupposes acknowledgement that there are value issues embedded in such judgments. Second, while a value-free attitude may indeed be attempted, such an attitude is difficult to achieve. All too frequently, evaluation of a region's “climate” is based on the values of the evaluator (and often without disclosure of this fact to unsuspecting readers).This is especially likely when the observer adopts a theoretical position, taking insufficient account of the tension between society and actors. Unfortunately, such theories give social scientists the false feeling that they have some sort of preferred cognitive vantage point. Theories which incorporate an “oversocialized conception of man” (Wrong, 196l) or, alternatively, an “overly psychological conception of society,” ignore the fact that people act and make decisions about those actions, both of which are based upon value-judgments, and which do not have a one-to-one correlation with any given social situation.


2020 ◽  
Vol 38 (1) ◽  
pp. 1-15
Author(s):  
John D. Skrentny

The concept of “region” is widespread in the social sciences but rarely theorized. I argue here that region is a multivalent concept similar to ethnicity, nation, and race. Building on the work of Bourdieu, Brubaker, and Griswold, I show that all four concepts can be understood as both “categories of analysis” and “categories of practice.” Moreover, all four have fundamental similarities regarding (1) ontology and relation to space; (2) historical sequences and relation to time; and (3) protean boundaries that may change with social scientists’ research questions. Among the payoffs to this approach are improved precision and appropriateness of regional boundaries when social scientists use regions as independent or control variables and greater appreciation for how regions, as categories of practice, are made over time.


2016 ◽  
Vol 23 (1) ◽  
pp. 217-240 ◽  
Author(s):  
Daniel C. Thomas

What is a region and how can we best understand a state’s eligibility for membership in a regional political community? Scholars have sought to answer these questions in terms of geographic proximity and social-psychological identity, but neither concept can accommodate the contestation and change that characterize the social construction of regions. Instead, this article argues that the limits of regions are defined within regional organizations by member states’ governments plus supranational actors deliberating over a common definition of the characteristics that members and potential members are expected to share. The concept of membership norms thus offers powerful insights into how regional communities define who is eligible for membership, how these definitions change over time and the incentives they create for those seeking to promote or block an applicant state. The evolution of the European Union’s membership norms since the 1950s illustrates this argument.


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