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Law: Overview

L.B. Edelman, M. Galanter, in International Encyclopedia of the Social & Behavioral Sciences, 2001

2 Law as a Symbolic System

The pronouncement and implementation of legal norms are attended invariably by indirect and
unanticipated consequences. Law rarely works as anticipated by lawmakers. The rules and rights
that are promulgated by legislatures and courts are usually broad and ambiguous, in large part
because lawmakers agree more on broad symbolic meanings than on detailed constructions.
Especially because legal measures are only partially funded by the state and depend on inputs from
interested parties, the way that rules and rights are interpreted and enforced depends on the
contention among interested parties, who vie for resources and attention and negotiate the
meaning of compliance according to their interests or institutionalized ways of thinking. Even though
laws are promulgated by the state and intended to penetrate downward through society, law is in
many ways driven from below by litigants, clients, and other intended subjects of regulation. Citizens
are not law's passive subjects; rather, they are active interpreters of legal ideas and symbols and, at
least sometimes, strategic actors who mobilize the law selectively to pursue their own visions of
advantage and justice.

Law operates not simply as a body of regulatory controls and public edicts, but also as a set of
symbols, with different meanings for different social groups. The symbolism of law, by invoking
ideals and principles such as due process or equal opportunity, may ermpower citizens to take
political action or to make stronger claims in informal negotiations (see Rights). However, the
symbolism of law may also diminish the substantive role of law. When contests over morality are
fought on legal terrain, parties may care more about the symbolic victory than about the actual
effects of law (Gusfield 1963). And political actors benefit from laws that provide symbolic victories
to powerless parties without disturbing the status quo (Edelman 1964). Critical legal scholars and
neo Marxists emphasize the hegemonic role of law: Laws that appear to provide rights irrespective
of class, gender, or race help to solidify the power of the elite (see Critical Legal Studies; Marxism
and Law).
Law may engender symbolic forms of compliance as well. In response to civil rights law, for example,
work organizations have created an array of structures designed to symbolize attention to civil
rights: These include affirmative action or equal employment opportunity programs, plans,
procedures, offices, and functionaries. Over time, these ‘symbolic structures’ become
institutionalized forms of compliance with law. Once in place, however, symbolic structures may
enhance employees' rights consciousness and make it more difficult for employers to deny
employees' law-related claims, thus enhancing indirectly the impact of law (Edelman 1992; see also
Organizations and the Law). Studies of law must therefore be attentive not only to the direct and
substantive role of law but also to its symbolic role in society.

Law as a symbolic system also has important effects on ‘legal consciousness.’ Although there is no
consensus as to the meaning of this construct, it refers broadly to an institutionalized set of ways in
which individuals come to think about law and to employ legal ideas and principles in their daily
lives. Over time, certain ideas about law acquire stable and objectified meanings, which in turn limit
and constrain future meaning-making vis-à-vis law and legal rights (see Legal Culture and Legal
Consciousness;). Legal consciousness scholarship seeks to decentralize the study of law, emphasizing
the role of law in everyday life rather than the behavior of distinctively legal institutions and actors.
Scholars seek to show how legal constructs acquire meaning through everyday social interaction,
contest, and routine. Although somewhat inspired by neoMarxist scholarship, this work is more
influenced by studies of culture and institutions. It does not generally see legal consciousness as
false consciousness, but rather as a site of resistance to, or engagement with, law and legal
institutions.

Legal consciousness has been studied within particular social arenas such as families, religious
communities, or welfare offices. Other work focuses on legal settings. For example, Conley and
O'Barr (1990) studied how litigants in small claims courts identify and analyze legal problems, and
observed a difference between experienced players, who adopt a rule-oriented style, and less
experienced (especially female, poor, and minority) players, who focus on relationships and
narrative. Some authors emphasize shared experience as a source of legal consciousness
(suggesting, for example, that law would have similar meanings to people on welfare, or Hispanic
women) while others focus on the development of legal consciousness in a community (so that, for
example, people in a particular geographic locale would share a legal consciousness irrespective of
their economic status, race, or sex). Others emphasize that legal consciousness is multiple and
varied: Ewick and Silbey (1998) suggest that legal consciousness is not a direct reflection of legal
structures or personal experience, but that the same individuals in their daily lives can manifest
mutually ‘inconsistent’ relations to law, with their view of law alternating between a remote and
majestic authority, a game, and an oppressive power.

Philosophy of Law
Stefan Magen, in International Encyclopedia of the Social & Behavioral Sciences (Second Edition),
2015

Reductionism, Eliminativism, and Emergentism

Leiter and Marmor explain (1) legal norms by reference to underlying social practices and (2) social
practices by reference to behavior and mental states. In doing so both offer reductionist theories,
because they assert that one set of phenomena can be accounted for by another set of phenomena
(Marmor, 2013). But they differ in the methodological justification of their account, i.e., whether
they attribute the success of their explanation to philosophical analysis or to compatibility and
continuity with social sciences. The second aspect of reducing social phenomena to behavior and
mental states concerns the well-known dispute between individualist (reductionist) and holistic
(emergentist) theories in social science. Critical with regard to the success of reductionist legal
positivist theories, and disputed in legal philosophy, is the possibility of reducing law's normativity to
social norms. In general, three possible relations can be drawn (O'Connor and Wong, 2012) between
legal norms and social practices, and each could be thought of as either an epistemological or an
ontological relation: First, an eliminative reduction would regard the normativity of law (or some
aspects of it) as ontologically inexistent or epistemologically inaccessible to rational analysis, as
Hägerström's radical legal realism did. Following this reasoning, there is nothing that needs to be
explained. Secondly, one could assert that legal norms exhibit properties like ‘validity’ or
‘normativity,’ but hold that these properties can be fully explained by underlying social practices
(like microeconomics explains aggregate outcomes in terms of individual behavior). This seems to be
the kind of reductionism implied by Leiter and Marmor. Thirdly, one could hold that ‘validity’ or
‘normativity,’ as properties of legal norms, cannot be fully explained by social facts, either because
we lack the knowledge necessary to do so or because normativity is an emergent and hence
irreducible property that ontologically supervenes on the respective social practices. Then
reductionism would fail. But this would not necessarily mean that legal positivism is wrong and a
natural law theory true, because the irreducible property does not have to consist in true morality
but could just be the normativity of law. Of course, different aspects of legal norms could require
different versions of reductions. For example, it is a plausible view that legal norms do not exist as
incorporeal entities but that they do exist as aggregates of behavior and mental states.

Law and Morality: A Continental-European Perspective

R. Alexy, in International Encyclopedia of the Social & Behavioral Sciences, 2001

3 The Limitation Problem

If the correctness argument is sound, legal norms and legal decisions that for moral reasons do not
fulfil the claim to correctness are legally mistaken, but they do not necessarily lose, on this basis
alone, their legal character or their legal validity. Anarchy would be the consequence if each and
every moral defect were sufficient by itself—that is, without any institutional act or decision—to
undermine legal validity or even the very legal character of the norm or the decision. So far, there
exists a broad consensus. Highly contested, however, is the question of whether gross injustice
undermines legal validity or legal character. This question was the topic of Hart's well-known critique
(Hart 1958) of Radbruch's famous formula (Radbruch 1946). The shortest conceivable formulation of
this formula runs as follows: extreme injustice is not law. This formula, which was applied by German
courts after the defeat of National Socialism in 1945 and after the collapse of the German
Democratic Republic in 1989, does not require any sort of complete fit between law and morality—
as the claim to correctness does. Rather, it allows that appropriately issued and socially effective
norms are valid law even if they are severely unjust. It is only in cases of extreme injustice that the
formula gives priority to material justice over legal certainty. In this way, it builds into law an
outermost limit. This limit is substantially defined by the core meaning of human rights.

The acceptability of the Radbruch formula essentially depends on whether it is judged from the
observer's point of view or from that of a participant. It is not a problem for the nonpositivist to
grant that an observer, wanting merely to describe the law of a wicked legal system, can and should
use a positivistic concept of law based exclusively on appropriate enactment and social efficacy. The
controversy over Radbruch's formula begins once the participant's perspective is considered. The
participant's perspective engages one who, from within the legal system (for instance, as an official
who has to apply the law or as a citizen who has to abide by it), asks what the law requires, forbids,
and permits.

The dispute about whether or not an outermost moral limit ought to be built into the concept of law
cannot be decided merely by means of conceptual arguments. The meaning of the expression ‘law’
excludes neither Radbruch's formula nor its negation. The decision can only be grounded on
normative arguments. In other words, the inclusion or exclusion of an outermost moral limit cannot
be based on a conceptual necessity, but only on a normative necessity.

There are good reasons for both positions. The main argument of the positivists is the argument of
legal certainty. They claim that the Radbruch formula leads to hidden retroactivity which, in penal
law, boils down to a violation of the principle nulla poena sine lege. This is the case because
Radbruch's formula invalidates statutes of an iniquitous legal system that permit extreme injustice.
This is said to be unacceptable for, it is argued, the principle nulla poena sine lege protects
everybody, even the henchmen of an iniquitous regime, so long as their atrocities are covered by the
positive law of that system. The nonpositivist responds that legal certainty and, in particular,
especially the principle nulla poena sine lege are, indeed, lofty values, but that they are not the only
values at stake. They are in conflict with the material justice to which past and future victims of
iniquitous regimes have a claim. In the end, these problems are to be resolved by weighing the
principles at issue. In normal situations, the nulla poena sine lege principle must have priority. In
cases of extreme injustice, however, the situation is more difficult. There are good arguments for
giving priority to the protection of the rights of past and future victims over the protection of those
who, implicated in the acts of an unjust state, have relied on a legal justification of their deeds on
the basis of a ‘legal positivization’ of injustice (Dyzenhaus 1999).

African Legal Systems

G.R. Woodman, in International Encyclopedia of the Social & Behavioral Sciences, 2001

‘African legal systems’ means the bodies of interrelated legal norms and accompanying institutions
of norm-creation, norm-finding, and norm-enforcement which have a social existence in Africa. Legal
norms are social norms enforced by a relatively strong degree of coercion. Non-state African legal
systems are customary legal systems, i.e., legal systems which exist by virtue of the social
observance of their norms. Religious legal systems are customary legal systems derived from
systems of religious belief. Within African customary systems legal relations are between
communities rather than individuals. A customary law community often has an individual leader,
such as a ‘head of family’ or a ‘chief,’ who is generally subject to the rule of customary law.
Customary legal disputing processes tend to be directed to the achievement of social peace rather
than the determination of legal rights, involving mediation and negotiation rather than adjudication.
African state legal systems were formed by the colonial powers, whose own state laws were
received (i.e., imported) and became African legal systems. Customary and religious legal systems
continued to be socially observed, so that the receptions gave rise to situations of legal pluralism.
State legal systems also gave recognition to customary and religious legal systems, that is,
incorporated some of their institutions and some of their norms into state legal systems
(institutional and normative recognition, respectively), and thus produced pluralism within state
legal systems. Recognition entailed the creation of ‘lawyers, customary law,’ consisting of
institutions and norms which differed markedly from those of ‘folk,’ ‘indigenous,’ or ‘practiced
customary law.’ Since the initial reception, state public law, those branches of the state legal system
which regulate government, have generally been directed towards strengthening the state. After
Independence there were periods of instability, but more recently there have been trends towards
constitutionalism, more democracy and accountability in government, emphasis on environmental
protection, and judicially enforceable human rights. There have been attempts at nation-building to
counteract the dangers of interethnic and interreligious conflict, and in pursuance of policies of
development through law. Received private law has been continuously changing. Some factors tend
to cause divergence between this law and the laws of the European countries of origin, but other
factors tend to have the effect that the developments in both are often identical. Received private
law is more widely observed than formerly, but most people still choose to act under customary law
in many circumstances. Systems of practised customary law have changed since colonization. Thus
the individual has gained more autonomy, and legal transactions are more often governed by market
forces. New bodies of customary law have been formed, especially in the urban areas. Lawyers'
customary law has developed through its embodiment in authoritative pronouncements such as
judicial decisions, codes, and restatements, but this may also have reduced its responsiveness to
social change. Most research into African legal systems will in future be conducted in Africa by
African scholars, although the more fundamental theoretical issues, such as those concerned with
the concept of law, will continue to be investigated internationally.
Supreme Courts

Charles R. Epp, in International Encyclopedia of the Social & Behavioral Sciences (Second Edition),
2015

Political Influences on Supreme Courts and Their Legitimacy

Supreme courts, while forthrightly legal institutions, are influenced by both legal norms and the
political process, but the ways in which they are political, and the nature and paths of political
influence, vary considerably. Although countries have adopted a wide array of constitutional and
statutory provisions aimed at striking a balance between judicial independence from undue political
manipulation and judicial responsiveness to widespread popular values, the effects of these
measures are strongly shaped by several key factors related to the broader structure and
distribution of political and organizational powers in each society.

First, the more centralized governmental power is, particularly in the executive, the greater the
possible degree of direct manipulation of the supreme court by officials in these other institutions is.
At one extreme, military coups or the exercise of emergency powers by governing regimes are
commonly associated with sharp limitations on the authority of a country's supreme court and direct
manipulation of the court by the regime (Halliday et al., 2012; Helmke, 2005; Tate, 1993). At the
other extreme, in countries in which governing power is divided by a federal structure, an American-
style separation of powers, or both, the paths of influence on the supreme court are more
attenuated, affording the supreme court greater room for maneuver (Helmke and Rosenbluth,
2009). Between these ends of the continuum lie many intermediate instances. Thus, the supreme
courts of Latin America vary considerably in degree of control by the executive and level of judicial
intervention in key policy disputes (Helmke, 2005; Hilbink, 2007; Couso et al., 2010). Nonetheless,
even supreme courts in pluralistic systems – for example, the United States and Canada – are
influenced by the national governing coalition and may be active in many policy areas yet rarely
challenge directly the key policies favored by that coalition (Whittington, 2005).

Second, political influences on supreme courts are conditioned by the degree of pluralistic conflict
over selection of justices and the degree of diversity in the pool from which justices are drawn
(Malleson and Russell, 2006). At one extreme, in a pattern more typical of common-law than civil-
law countries, are courts whose appointment processes are subject to open political conflict
between competing factions and whose justices are drawn from a relatively diverse population that
includes politicians, government officials, and law professors. Thus, in the United States, the
constitutional requirement for Senate confirmation of nominations made by the president has
afforded the opportunity for open, pluralistic conflict over appointments to the Supreme Court
(Yalof, 1999). At the other extreme are systems that insulate appointment processes from popular
pressure and that draw judges from an insular elite, a pattern typical of civil-law countries. In some
civil-law countries, the judiciary is largely self-regulating; judges are selected by competitive
examination after receiving specialized legal training, and they advance through the judicial
hierarchy on the basis of seniority and the approval of superior judges. In other civil-law countries,
the executive dominates judicial recruitment and promotion to the supreme courts. Often, the two
factors are found together, resulting in highly insular supreme courts.

For instance, in Chile the Supreme Court annually evaluates and ranks all of the country's judges, and
appointments to the Court are made by the executive from a short list of nominees selected by the
Court itself from among the lower judiciary; the system discourages the development of diversity of
opinion and creativity within the judicial ranks, and, as a consequence, the Court has remained very
quiescent over most of its history (Hilbink, 2007). Although the differences between civil-law and
common-law patterns of appointment to supreme courts thus loom large, the dichotomy does not
account for all variations. In the common-law world, the process of appointment to the US Supreme
Court is notoriously open and conflictual, while for the British higher judiciary it is highly insular. In
France, judges on the Court of Cassation are drawn exclusively from inferior courts; by contrast,
members of the Council of State are drawn not only from inferior administrative tribunals but also
from the administrative bureaucracy and academia (Brown and Bell, 1993, pp. 78–80). In general,
the insularity of the recruitment process in continental Europe appears to be gradually eroding, with
potentially significant implications for the judicial role.

Third, the degree of popular legitimacy of supreme courts and the nature and diversity of external
coalitions of support for them place constraints on direct manipulation of these courts by other
governmental officials. Some supreme courts have gained significant popular legitimacy, while
others remain relatively unsupported. Support from the organized bar and other groups in civil
society has often played a critical role in building these coalitions of support (Epp, 1998; Halliday et
al., 2012). Even in authoritarian regimes, supreme courts have sometimes gained considerable
support and leverage from broad external coalitions of popular support (see, e.g., Ginsburg and
Moustafa, 2008; Lopez-Ayllon and Fix-Fierro, 2003). Judicial legitimacy, ironically, may be cultivated
by courts themselves through active intervention in the policy process that attracts external
coalitions of support (Gibson et al., 1998). Where coalitions of support are diverse and politically
strong, they have played key roles in protecting supreme courts against measures aimed at curbing
their power. This is clear, for instance, in comparing the limited success of attacks on the US
Supreme Court prior to 1937 (Ross, 1994) with the Gandhi government's relatively greater influence
over the Supreme Court of India in the 1970s (Baxi, 1980; Epp, 1998). In general, judges in common-
law countries tend to be accorded relatively high status and respect, while the civil-law tradition has
cultivated a deeply entrenched distrust for the judicial role and for judges (Merryman, 1996). But
beginning in the 1990s, many Latin American countries experienced growth in support for active
judiciaries and enacted reforms to enhance judicial independence and power (Couso et al., 2010).

Although the various factors just summarized are conceptually distinct, they are mutually reinforcing
in practice. Governing systems in which political power is decentralized have tended to accord
greater symbolic status to their judges, particularly to their supreme court justices; develop
pluralistic and even conflictual appointment processes that select justices from a diverse population;
and cultivate broad coalitions of support around their supreme courts. Moreover, their supreme
courts have tended to be relatively actively engaged in the policy process. By contrast, governing
systems in which political power is centralized have tended to accord their judges, even their
supreme court justices, the lowly status of legal bureaucrats and to select these justices through an
executive-dominated process from highly insular pools of legal professionals. As a consequence,
these courts have developed highly formalistic decision processes that yield politically acquiescent
decisions and rarely cultivate support in the broader population. The latter extreme is exemplified by
the insular judicial bureaucracies of some Latin American countries that have few sources of popular
support – a pattern that is surely compounded by the effects of economic inequality on the degree
of organizational pluralism in civil society (see, e.g., Hilbink, 2007).

Political Trials

Leora Bilsky, in International Encyclopedia of the Social & Behavioral Sciences (Second Edition), 2015

Political Trials in Established Democracies

The political nature of transitional justice stems from the fact that there are no overarching legal
norms that are accepted as legitimate by the two successive regimes. Moreover, in these cases the
trials have overwhelmingly been used to fulfill social and political functions other than ascertaining
individual guilt. Liberal scholars, as we have seen, have been willing to recognize the political nature
of such trials and to justify it, but have not extended their theories to trials in established
democracies. The general view is that in normal times law should endeavor to keep politics out of
the courtroom so that every political trial is perceived as a corruption of the rule of law (which may
be termed the ‘pathology thesis’). This distinction, however, fails to account for the striking
similarities between transitional situations and periods in which there has been a significant increase
in political trials in democratic societies.

In the United States, political trials have occurred whenever the status quo has been challenged,
generally during periods of social and political ferment unleashed by such forces as war, economic
conflict, or racial discord (Belknap, 1981). For example, the decade that began with the escalation of
the Vietnam War in 1965 brought an epidemic of political trials culminating in the Chicago
Conspiracy trial (1969–70). This case represents a microcosm of American political justice of the era,
as it was directed against representatives of major antiwar groups, youth counterculture, and the
Black Panther Party, who all believed that the war was illegal and sought to mobilize the public
against it. Although the charges were clearly political (conspiracy to cross state lines with the intent
to incite riot), the trial also demonstrated the ability of the defense to politicize the trial and turn it
into a forum for social protest by flouting the norms of the courtroom and ridiculing the judge (Ely,
1981). In such trials as the Chicago Conspiracy trial, the same breakdown of common discourse was
manifested as in political trials during transitions to democracy.
The social turmoil and political trials of the late 1960s influenced the development of radical theories
of law (Gordon, 1982), as scholars in critical legal studies, critical race theory, and feminist legal
studies began to question the plausibility of the liberal ideal of separating law from politics. For
these scholars the very attempt to delimit the boundaries of the category ‘political trials’ obscures
the way in which politics enters every trial and every field of law. They argue that the liberal reliance
on a distinct category of political trials often serves to legitimize the status quo. Critical theory
understands politics not in the narrow sense of the term (motive of authorities, identity of
defendant, and so forth) but as the hegemonic ideology that shapes the interpretation of law while
presenting it as neutral. The main contribution of critical writings to understanding political trials has
been their rejection of the ‘pathology thesis’ about the relation between law and politics and their
systematic efforts to uncover the ideological structures that shape different areas of law (Kelman,
1987; Kairys, 1982). This broad definition of political trials, however, had its drawbacks because it no
longer called for a systematic investigation of the unique features of classic political trials, and
shifted the attention of scholars from the court drama and social reception of the trial to the
appellate court interpretation of the law.

Other scholars, still committed to the liberal framework, have identified a new form of political trial
that emerged during the 1980s and 1990s. While in the old political trial the ruling authorities
selected certain individuals to stand for an opposition that the state wanted to eliminate, in the new
political trial a section of the public turns the trial into a political trial by identifying with the victims
(who are not a formal party to the trial) or with the defendant. In these cases, the state does not
intend a political trial and has very little control over its politicization (Fletcher, 1995). The people
mobilized around these trials are usually out-groups protesting their marginalization by the legal and
political institutions. Examples are famous rape trials and self-defense trials of battered women who
killed their abusive spouses in which women's groups identified with the victim and politicized the
trial. The Rodney King trial and O.J. Simpson trial likewise became political trials in which African-
American groups were mobilized to protest against white justice in America. The study of these trials
draws particular attention to the role of the media in these cases.

The focus on group conflict and on the narrative and rhetorical aspects of political trials in ongoing
democracies provides scholars with the key to understanding their dynamics from a pluralistic
perspective. The famous trials of Socrates, Jesus, Dreyfus, and others are examples of heroes
unjustly prosecuted, but they can also be viewed as major junctions in the life of the republic where
society's conflicting values are played out not only, and not even mainly, through the learned
interpretation of the law but through the human drama in and around the courtroom. In these trials,
the social conflict is transformed into competing narratives that capture the public's attention and
offer an opportunity for collective self-reflection. Through an examination of competing values and
loyalties they bring together for public consideration society's basic contradictions (Christenson,
1999). From this perspective we can see how political trials, while threatening the rule of law, at the
same time may contribute to the development of a more critical and democratic society.
Class and Law

H. Rottleuthner, in International Encyclopedia of the Social & Behavioral Sciences, 2001

4 Class Consciousness and Law

There are no empirical studies that contrast the attitudes of workers (or of the proletariat) to legal
norms and legal institutions with those of employers (or of capitalists). Empirical research into
knowledge and opinion about law uses simple indicators of social status (preferably income or
occupation), but no class variables in a strict sense. Georg Lukács (1920 1971) dealt theoretically
with the attititude of the proletariat towards legality and illegality and towards the bourgeois law
and state in general. In order to establish successfully a proletarian state, the proletariat has to
acquire a sober, purely tactical attitude toward law and state. The state has to be seen solely as an
element of power, as an empirical entity without any normative obligatory force. Legality or illegality
are not matters of principle but of utility. This instrumental attitude towards law and state can also
be found among the members of Communist parties. After their experiences with bourgeois
legislation and class justice, they, having gained power, used law as an instrument of suppression
and of strengthening the socialist state. The doctrine of the withering away of law and state was
discarded; and law was not understood as a limit on state power.

Law: The Socio-Legal Perspective

Lauren Edelman, Marc Galanter, in International Encyclopedia of the Social & Behavioral Sciences
(Second Edition), 2015

Multiple Sites of Governance

Sociolegal analyses of the regulatory facet of law emphasize that the state is only one source of law
and legal norms. In most modern societies, the law presents itself as unitary, but nonetheless
consists of multiple systems of regulation that coexist and intertwine (see Legal Pluralism). Religious
bodies, universities, private firms, trade groups, and associations of all kinds devise and broadcast
norms, regulate their affairs, and impose sanctions – often by means of proceedings that to varying
extents mimic, if imperfectly, those of state law. Some legal systems openly yoke together several
bodies of law from different origins. For example, some ancient and modern societies have had a
system of ‘personal law’ in which the incidence of particular rules depends on the religious or tribal
identity of the parties. Many legal systems formally recognize alternative sets of rules. Hart (1961)
pointed out that in addition to primary rules, the law contains various sets of secondary rules about
the recognition and application of its own rules and the recognition and reinforcement of regulatory
activity in other institutions.
Regulation is not a governmental monopoly; there are multiple arenas of normative enterprise,
innovation, and interpretation. The state's law does not preside over a landscape barren of
regulation, but over a thick tangle of rivals and companions. Its effects depend on the way that it
interacts with the various sorts of indigenous ordering that surround it; the core official institutions
themselves are the scene of persisting and pervasive local variation. These various departures from
unity and uniformity have been studied under the rubrics of private government, indigenous law,
semiautonomous social fields, and local legal culture. Pluralism is very much with us: The centralist
view of a monolithic integrated legal order turns out not to be a description of modern law, but part
of its ideology.

Although law is the official terrain of dispute resolution, the vast majority of disputes are handled
outside of formal legal institutions. Felstiner et al. (1980) introduced the dispute emergence
perspective, and Miller and Sarat (1980) introduced the notion of the ‘dispute pyramid.’ Both
emphasize the limited likelihood that legal violations will be perceived or handled formally at all, and
that only a small fraction of disputes will evolve into formal trials. Morrill et al. (2010) elaborate this
model by presenting a multidimensional disputing model, suggesting that most disputes are handled
through extralegal processes such as talking to a friend, family member, or clergy person; prayer; or
contacting the media and that others are handled through quasi-legal processes such as
organizational grievance procedures. Edelman and Suchman (1999) suggest that organizations are
internalizing more aspects of legal regulation over time. The continuance of de facto pluralism is
fostered by various ideological currents, including movements to preserve and extend cultural
diversity, promote local control, and deemphasize adjudication in favor of ‘alternative dispute
resolution.’ To emphasize the many channels for dispute resolution outside of the formal legal
system, Albiston et al. (2014) suggest that the dispute pyramid metaphor is misleading and that it
should be reframed as a ‘dispute tree’ with many branches that represent various types of legal,
quasi-legal, and extralegal forms of dispute resolution. The branches are differentially accessible,
with differing types of flowers (symbolic results) and fruit (substantive result).

In sum, even though law regulates increasing areas of social life, most social regulation goes on
within various institutional and relational settings; only a small and unrepresentative minority of
disputes proceeds to a formal legal institution for resolution. To a large but perhaps diminishing
extent, when formal legal institutions devise rules to regulate conduct in institutions and
relationships, they refine and restate norms that already prevail in those settings (Bohannan, 1965);
legal norms in turn transform and feed rather than displace or eradicate the regulatory activity
indigenous to these settings.

Structural Dimensions

Andy W. Knight, in Encyclopedia of Violence, Peace, & Conflict (Third Edition), 2022
Comprehensive Sanctions

Sanctions are used by the UN as a means of forcing deviant states or groups to comply with
international legal norms or to end threats to international peace and security. Essentially, sanctions
are used to persuade the defecting party to reconsider its behavior and change its delinquent
actions and policies. Sanctions are therefore tools of coercion. They are part of what has been called
“coercive diplomacy” in that they employ threats or limited force to persuade an opponent to undo
an encroachment. To beef up sanctions, Chapter VII of the UN Charter has been utilized by the SC in
about 17 sanction cases so far: Afghanistan, Angola, Côte d’Ivoire, the DRC, Ethiopia and Eritrea,
Haiti, Iraq, Liberia, Libya, Rwanda, Sierra Leone, Somalia, South Africa, Southern Rhodesia, Sudan,
the former Yugoslavia, and most recently against al-Qaeda terrorists.

The range of UN sanctions available to states include arms embargoes, the imposition of financial
and trade restrictions, interruption of relations by sea and air, and diplomatic isolation. When
diplomacy fails and the use of military force may be too risky, the UN Security Council may decide to
use economic sanctions as a means of dealing with a state that has defected from specific
international norms. For example, during the Cold War, UN economic sanctions were imposed on
South Africa to end apartheid and on Rhodesia to force an end to a racist and illegitimate regime.

Since the end of the Cold War, we have witnessed an exponential increase in the number of UN-
imposed sanctions. Former UN secretary-general Kofi Annan (2001) has referred to their use as “one
of the defining characteristics of the post–Cold War era.” Since 1990, economic sanctions were
imposed on the following state and nonstate actors: Afghanistan/Taliban, Albania, Algeria,
Angola/UNITA, Azerbaijan, Burundi, Cambodia/Khmer Rouge, Cameroon, China, Colombia, Ecuador,
El Salvador, Equatorial Guinea, Estonia, France, Guatemala, Haiti, India, Indonesia, Iran, Iraq, Italy,
Jordan, Kazakhstan, Kenya, Latvia, Liberia, Libya, Lithuania, Macedonia, Malawi, Nicaragua, Niger,
Nigeria, North Korea, Paraguay, Peru, Rwanda, Sierra Leone, Sudan, Swiss Banks, Thailand, The
Gambia, Togo, Turkey, Turkmenistan, Ukraine, USSR, Yemen, Yugoslavia, Zaire, and Zambia.

One relatively recent and important test of this peacemaking instrument occurred in August 1990,
when the UN Security Council imposed economic sanctions on Iraq for invading and occupying
Kuwait. The result is a reminder that even harsh economic sanctions may not be effective against a
dictator who cares little about the plight of his own people. Despite the comprehensiveness of these
sanctions, the measures that were taken to enforce them, and the unintended consequences of
their use (collateral damage), Iraq initially refused to withdraw its forces. This set in motion the
series of events that led to the 1991 Gulf War—a shift from coercive diplomacy to military sanction.
Military sanction was also approved by the UN against the Taliban and al-Qaeda in Afghanistan, after
the 9/11 terrorist attack on the United States. However, when George W. Bush's administration
sought similar sanctions against Saddam Hussein to address the dictator's alleged link to global
terrorism and the claim that Iraq possessed weapons of mass destruction (WMD), the SC was divided
on the matter. As a result, in 2003, the Bush administration decided to assemble a “coalition of
willing” to invade Iraq, without UN authorization.

What we have learned from the experiences with the use of UN sanctions is that they can be rather
blunt instruments when applied comprehensively upon a target state. They are also punitive in
intent, and one recurrent problem with their use has been that of unintended collateral damage to
innocent individuals or groups within the target state, to those in neighboring states, as well as in
proximate states that are locked into an interdependent relationship with the target state. Such
unintended consequences forced the UN to develop ways of alleviating the suffering that Iraqi
children and much of that country's population had endured as a result of the harsh economic
sanctions levied against Iraq. In that case, $46 billion of Iraqi oil export earnings were taken from the
Iraqi government over a seven-year period and used to buy food and medical supplies for the Iraqi
people. That oil-for-food program was marred by allegations of fraud and corruption on the part of
UN officials, personnel and agents, as well as contractors, including entities that entered into
contracts with the UN or with Iraq under this program. This scandal led to an independent inquiry
set up under the chairmanship of Paul Volcker.

Transitional Economies

J. Round, in International Encyclopedia of Human Geography, 2009

Internationalization

The domestic economy must be opened up to international competition.

Conditions must be created to encourage foreign investment, such as legal norms, property rights,
and a ‘trust’ culture.

International standards for accounting, custom duties, and tax to be developed.

A stable, convertible currency is to be introduced.

Furthermore, these reforms had to be implemented simultaneously, in what became known as a ‘big
bang’, in order for them to work effectively. Therefore, for example, a country could not liberalize
prices and maintain state monopolies on production. This process is also known as ‘shock therapy’,
as the initial reforms are so far reaching the market are shocked into action. This is why China, which
has undertaken some of the above, is not referred to as a transition economy as the reform process
was introduced gradually and the state retains some control. Fundamental to the theory of
transition is the notion that the ‘market knows best’ and that government interference stymies
economic development. Thus the Chinese model of reform was not seen as a viable alternative
reform path for post-socialist states as the state remained too prominent an influence.

The geopolitical aspects of these reforms must also be considered. By implementing such wide-
ranging reforms in a very short space of time, a very decisive break with the past has been made. For
example, if a market economy is implemented and its subsequent growth leads to increased
prosperity for the general public it is much harder for a military-led government to regain power.
Similarly, if a command economy is dismantled it becomes almost impossible for communists to
return. As Fukuyama famously stated, the collapse of the communist system signaled the ‘end of
history’, as it demonstrated the superiority of the Western neoliberal economic model and
therefore, signaled the end of the Cold War. Jeffery Sachs, a leading advisor to many former Soviet
countries, stated that “The thinking of the day was that ‘we’ had a once in a lifetime window of
opportunity to effect change.” This suggests that the set of policy reforms was concerned with far
more than just the economic. This is not to suggest that political change was not desirable in the
countries undergoing such reforms but it highlights how the reforms were, at least partially, an
ideological construct. Furthermore, the opening up of these states had economic benefits to
Western countries as it provided access to new markets, cheaper labor, and natural resources.

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