European Ways of Law

EUROPEAN WAYS OF LAW Can there be such a thing as a European sociology of law? The uncertain- ties which arise when attempting to answer that straightforward question are the subject of this book, which also overlaps into comparative law, legal history, and legal philosophy. The richness of approaches reflected in the essays (including comparisons with the US) makes this volume a cou- rageous attempt to show the present state of sociolegal studies in Europe and map directions for its future development. Certainly we already know something about the existence of differences in the use and meaning of law within and between the nation states and groups that make up the European Union. They concern the role of judges and lawyers, the use of courts, patterns of delay, contrasts in penal ‘sensibilities’ or the meanings of underlying legal and social concepts. Still, similarities in ‘legal culture’ are noticeable in societies at roughly similar levels of political and economic development. This volume should serve as a needed stimulus to a research agenda aimed at uncovering commonalities and divergences in European ways of approaching the law. Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors William LF Felstiner Johannes Feest Board of General Editors Rosemary Hunter, University of Kent, United Kingdom Carlos Lugo, Hostos Law School, Puerto Rico David Nelken, Macerata University, Italy Jacek Kurczewski, Warsaw University, Poland Marie Claire Foblets, Leuven University, Belgium Roderick Macdonald, McGill University, Canada Titles in this Series Social Dynamics of Crime and Control: New Theories for a World in Transition edited by Susannah Karstedt and Kai Bussmann Criminal Policy in Transition edited by Andrew Rutherford and Penny Green Making Law for Families edited by Mavis Maclean Poverty and the Law edited by Peter Robson and Asbjørn Kjønstad Adapting Legal Cultures edited by Johannes Feest and David Nelken Rethinking Law Society and Governance: Foucault’s Bequest edited by Gary Wickham and George Pavlich Rules and Networks edited by Richard Appelbaum, Bill Felstiner and Volkmar Gessner Women in the World’s Legal Professions edited by Ulrike Schultz and Gisela Shaw Healing the Wounds edited by Marie-Claire Foblets and Trutz von Trotha Imaginary Boundaries of Justice edited by Ronnie Lippens Family Law and Family Values edited by Mavis Maclean Contemporary Issues in the Semiotics of Law edited by Anne Wagner, Tracey Summerfield, and Farid Benavides Vanegas The Geography of Law: Landscapes, Identity and Regulation edited by Bill Taylor Theory and Method in Socio-Legal Research edited by Reza Banakar and Max Travers Luhmann on Law and Politics edited by Michael King and Chris Thornhill Precarious Work, Women and the New Economy: The Challenge to Legal Norms edited by Judy Fudge and Rosemary Owens Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice Systems edited by Eric L Jensen and Jørgen Jepsen The Language Question in Europe and Diverse Societies: Political, Legal and Social Perspectives edited by Dario Castiglione and Chris Longman Globalisation and Resistance: Law Reform in Asia since the Crisis edited by Christoph Antons and Volkmar Gessner Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan edited by Saïd Amir Arjomand European Ways of Law Towards a European Sociology of Law Edited by Volkmar Gessner and David Nelken Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW OXFORD AND PORTLAND OREGON 2007 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: www.isbs.com © Oñati IISL 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, 16c Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84113-777-3 (hardback) ISBN: 978-1-84113-778-0 (paperback) Typeset by Compuscript, Shannon Printed and bound in Great Britain by TJI Digital, Padstow, Cornwall Acknowledgements The First European Socio-Legal Conference under the title ‘European Ways of Law’ was organised by the Oñati International Institute for the Sociology of Law. During the time of preparation—which lasted some 18 months—I was assisted as the Scientific Director by an Advisory Board. Among those colleagues I would particularly like to mention Susanne Karstedt who shared with me her experience of international meetings and her knowledge of interested and interesting people. Most chair persons of our sessions were active in attracting speakers and Luigi Comminelli was among the most active. Assya N Ostroukh was extremely helpful in estab- lishing contacts with socio-legal scholars from Russia although in the end we weren’t successful in raising sufficient funds to invite them to participate in the event. Many other people from our scientific community, from the Basque Goverment and the town of Oñati, were helpful but the lion’s share of my gratefulness goes to the staff members of the Oñati Institute and among them Malen Gordoa Mendizabal. Since she is already world-famous as a workshop organiser I only want to add that one also could not think of a better conference organiser. My warmest thanks for an excellent and imaginative cooperation—eskerrik asko Malen! Volkmar Gessner Foreword JOXERRAMON BENGOETXEA It is with great pleasure that I write this Foreword to the book which col- lects the selected proceedings of the First Oñati Socio-Legal Conference— European Ways of Law. I myself participated in this Conference and made a small contribution on the European ways of constitutionalism which I very gladly discussed with colleagues. I found it most enjoyable and intellectu- ally stimulating to participate in this Conference and meet so many interesting socio-legal scholars. Anyone who has been to the Oñati Conferences, workshops or to the Master, or even to the Law and Society Library as a research visitor can testify to the special flavour of Oñati and the Basque Country. The level of the presentations was really very high. I hope we can keep that high standard for the next Conference. Indeed the title Ways of Law is so telling and so close to the idea of legal culture, that we have selected it as the general title for the cycle of Conferences that will, hopefully be held in Oñati every other year. The next one, in July 2007, will be dedicated to Latin America, and will have the title ‘Latin American Ways of Law: Democracy, Development and Liberation’. I do hope it will be as successful as the European one. Interesting things are happening in Latin America in many different respects and it is with some degree of modesty that we approach the issues from the European continent because we have a lot to learn. We shall be dealing with issues like Sustainable Development, Transitional Democracies, Access to Justice, Restorative Justice, Indigenous Peoples, the system of Ombudsmen, the patterns of migration, etc. The ways of law are many; but interestingly the word for law in the Basque language is zuzenbidea, which means the way of justice, or fairness, but also the straight way or path, bringing connections with many who have looked for paths, avenues and patterns in the law; after all, the rules and the norms are all standards for the correct adoption of measures. Ways can also be the different styles, forms, manners of doing law and it points to movement. At the International Institute for the Sociology of Law we have this very clear international, global understanding of legal phenomena and of the scholarly dimension of socio-legal studies. That is why we can say with some pride that Oñati is the World Centre for Sociology of Law or Socio-legal studies. Our Master in Sociology of Law is a truly international x Foreword Master; and our students and teachers do come from literally all over the world. Our workshops attract scholars from all around the Globe and we receive visitors weekly from every continent. Language is not a barrier; on the contrary, it is an asset. May I finish by congratulating the editors for this volume. I know they have worked very hard. I can see it for myself now, trying to organise the next Ways of Law Conference. And this is nothing compared to the hard work all our collaborators at the Institute are doing in their different departments. Agur Bero Bat Denoi Contents Foreword ................................................................................................. ix Joxerramon Bengoetxea Contributors .......................................................................................... xiii Introduction: Studying European Ways of Law ......................................... 1 Volkmar Gessner, David Nelken A Theorising ‘European’

Load more