This article explores the binding forces that emerge in criminal cases. Using ethnographic data, we explore how defendants are bound to their initial defenses. In addition, we ask whether the binding effect works similarly or differently in three distinct procedures. Our research is rooted in the analytical concepts of “procedural history” and “discourse formation” as presented by Niklas Luhmann and Michel Foucault. Both theories describe past statements as “virulent” in present stages: participants have to take their own histories into account when engaging in current dealings; current statements must confront past statements, generating inconsistency and contradiction. Empirically, the three authors explore variations of binding in the light of eight microhistorical case narratives collected during fieldwork in the United States, the United Kingdom, and Germany. These microhistories trace the binding effects of early defenses through pretrial and trial. Our observations lead us to conclude that the binding mechanism appears less determinative in practice than in the claims of theory. Alongside the several effects of binding, we identify a variety of protections, interruptions, and even unbinding effects.

This article provides an ethnographic account of the power and practice of mandatory prosecution upon misdemeanor domestic battery suspects. Integrating law and society studies, domestic violence research, and poststructuralist theories of power, it finds that mandatory prosecution engages suspected batterers in multiple power operations that shape their agency in different ways. While many of these operations are familiar from past law and society research, mandatory prosecution alters their practice. In general, the different tactics that legal authorities deploy in their interactions with domestic battery suspects coalesce in an effort to have them plead guilty. The impact of these tactics on batterers, however, is far from clear. Mandatory prosecution increases the number of persons convicted of domestic violence. But abusers’ violence is repeatedly redefined and displaced, as they are processed through the court setting, thus casting doubt on the criminal court's power to affect their accountability. By detailing the court's various points of encounter with domestic battery suspects, this study offers a much-needed empirical framework for future evaluations of court interventions against domestic batterers.

Where does international law (IL) draw its authority from a still weakly institutionalized international scene deprived of the warrants of a state? To address this classical debate, the article draws from a case study on the social and professional structure of the “international legal community” as it emerged during the 1920s as part of the rise of multilateralism and international organizations. It focuses on the “situation of the international lawyers” of the time, starting with the multiple and often antagonistic roles they play (as legal advisers, scholars, judges, diplomats, politicians, etc.) and the variety of interests and causes they defend (states, international organizations, professional interests, etc.) in international politics. It argues this heteronomy of international lawyers helps understand the autonomization of international law. Far from being opposed to one another it has often been assumed—realism and idealism, national loyalty and international loyalty, political logic and learned logic—actually gain when analyzed as various modes of affirming a single cause—that of an international rule of law. This attention given to the “situation of international lawyers” and to the way they manage their various allegiances also accounts for the particular vision of the “International” and of “Law and Politics” relationships that are encapsulated in this emerging international corpus juris.

By exploring how early political investments in favor of a European Constitution have been turned into a legal enterprise to constitutionalize the European treaties, this article analyzes the changing role of legal elites in the genesis of a European transnational order. At first, legal activities of constitution-making were closely linked to military issues and political mobilizations; later, the legal work of constitutionalization took a different path as a result of the process of differentiation of the European field of power and of the internal and contradictory logics of a newly created legal institution, the European Court of Justice (ECJ). By reconstructing the constitutionalization process, this article highlights the various types of elites then competing for the early definition of a European transnational order and, in particular, the capitals and representations of legal agents in the making of a Constitution for Europe.

The history of the genesis and institutionalization of the European Convention on Human Rights offers a striking account of the innovation of a new legal subject and practice—European human rights—that went along with, but also beyond, the political and legal genesis of Europe following World War II. The rise of the European human rights institutions shows not only how law and lawyers played key roles in the early politics of European integration but also how the subtle combination of law and politics—as both national and international strategies—continued to play a decisive part in the institutionalization of European human rights. The article generally argues that the interplay between law and diplomacy had a fundamental impact on the innovation of European law and that lawyers capable of playing an intermediary role between the two were particularly central to this development.

The short history of environmental institutions and policies in Europe is marked by their radical reorientation. While environmental protection devices were initially conceived in the 1970s by using the classical model of the “watchdog state,” they underwent a shift during the 1990s: the ineffectiveness produced by bureaucratic constraints served as a pretext to hasten the disengagement of the state to the benefit of a regulation negotiated on the basis of financial incentives. The management of environmental issues now relies on the construction of an international market of sustainable development (or of a “rights to pollute” market, similar to that which has been established by the Kyoto protocol). The emergence and reconstruction of this field of expertise can be seen as a kind of microcosm of the perpetually unfinished Tower of Babel that is the European construction. One of the merits of this subject matter is to highlight the internal and external dynamics that have favored the success of a neoliberal counterattack.

Against the historical backdrop of the codification debate in nineteenth century Germany, this article traces the reassertion of “legal science” as an autonomous source of European legal integration in current legal and political discourse about the harmonization of European private law. The article argues that a grasp of widely shared ideas about the role and function of legal science and legal scientists is vital both toward an understanding of the extraordinary impact of the academic project of a European civil code on legal and political discourse in the Union in particular, and toward furthering the theory of legal fields in general.