In representing the interests of a group, law may simultaneously construct the subject holding those interests. When groups question the implications of an imposed subjectivity, the politics of identity may become a forum for resistance. I examine law's potential to shape identity, based on a controversial decision affecting Yavapai residents of the Fort McDowell Reservation in Arizona. A proposed dam threatened to move the Yavapai from their ancestral land. To develop the Environmental Impact Statement required by the National Environmental Policy Act of 1969, the U.S. Bureau of Reclamation adopted a rational decision framework that some Yavapai believed misrepresented them. Their resistance stimulated a reinterpretation of their collective identity, a defense of their distinctiveness, and a reassertion of their right to represent themselves. The effect of this reappraisal was a new appreciation and articulateness about Yavapai distinctiveness, an invigorated sense of their own history and, most important, their enhanced empowerment.

This article analyzes the social origins of evidence. Applying Black's theory of partisan behavior to a variety of empirical materials indicates that the ability to attract supporting evidence is differentially distributed across social life. Thus, the amount of investigative effort legal officials put into a case, the willingness of people to testify, and the supportiveness of witness testimony all increase with the social status of the principal parties and the number of intimate ties they have. In addition, the quality, or credibility, of the evidence parties attract varies directly with their social status and the number of distant ties they have. Far from creating a factual component divorced from the social dimension of the case as is often believed, the evidentiary process helps to transform the attributes of high status and social ties into successful legal claims.

In the following exchange Professor Howard Gillman draws our attention to the importance of contextual and culturally specific understandings in studies of law and change. In his comments he suggests that categorical data employed in quantitative research cannot adequately represent the actions of judges and others involved in applying (or complying with) law. He uses as an example a recent article published in the Review in which Neal Tate and Stacia Haynie examined the impact of the Marcos dictatorship on the work of the Philippine Supreme Court. In that article, the authors drew on a framework for describing the work of appellate courts developed by Martin Shapiro, identifying several dimensions of judicial function, operationalizing them and employing sophisticated statistical techniques to detect the impact of the changes in political regime. The questions raised by Professor Gillman and the responses of Professors Tate and Haynie have significance both for research on our own legal institutions and, a fortiori, for our efforts to understand legal institutions of other societies.

Indonesian political leaders in the mid-20th century attempted to create a new state founded both on the rule of law and on their understandings of traditional Indonesian communal life. They sought simultaneously to “advance” toward modernization and industrialization and to preserve older, village-level norms and values which they projected onto the national legal and political screen. This article examines the inconsistencies inherent in these twin aspirations and the continuing tensions, during a period of rapid growth and economic development, between rights-based conceptions and those based on an ideology of harmony and communal village life.

While Native American treaty rights are one of the strongest instances of legally protected rights to social and cultural particularity in the United States and internationally, treaties and treaty litigation are also deeply racializing forms of legal discourse. This essay explores the dynamics between law and culture in the United States and the contradictory role played by federal Indian law in the transformation of indigenous identities by examining a current treaty rights case: United States v. Oregon, Confederated Tribes of the Colville Reservation, Plaintiff-Intervenor. The essay sets the Colvilles' litigation into its historical and legal context through an analysis of the relationship between the group names, of legal and nonlegal origin, by which Colvilles identify themselves and about which this litigation is centrally concerned. The Colville Tribes have consistently layered their social identities onto a map of permanent places through intra- and intergenerational naming formulas that are used to establish identity and to negotiate historical change and colonization. Federal Indian law has consistently constructed identity in its naming of indigenous groups by decontextualizing and remapping identity to a fixed map of race. Thus, federal legal discourse precludes a consideration of the very aspects of Colville identity that are central to the recognition of the claims put forth in their current litigation.

Research has shown that direct experience of legal authorities' unfairness or rudeness lowers unfairly treated individuals' support for legal authorities in general and fosters noncompliance with laws. Many people, however, get information about legal authorities and institutions indirectly through conversations with others. To highlight the possible ripple effects of specific enforcement contacts on the general population's support for authorities, we compare what taxpayers said happened in their tax audit interviews with what they tell other members of their social network. Because people are most concerned about others' image of them, this motivation for communication often weakens a bias toward negative messages. Our findings demonstrate that messages about fairness of decisionmaking, favorability of outcomes, and dignity more closely approximate the distribution of the sample of audited taxpayers' perceptions. We found support, however, for a bias toward negative messages in two situations: messages about instrumental quality and in the rare circumstance when taxpayers received undignified treatment and favorable outcomes. In this circumstance, the message does not have connotations for one's own image. We discuss the implications for legal socialization and the reservoir of societal support for legal authorities and institutions.

Tate and Haynie's (1993) recent essay in these pages on the functions of courts in authoritarian regimes is evidence of an increasing interest among American political scientists in the comparative study of judicial politics. There have always been a few among us who have argued for the benefits of broadening our perspectives beyond the American judiciary. As the story goes, the effort began 30 years ago with just a handful of pioneers meeting in a Dallas hotel room to discuss ways to make comparative judicial studies a more conspicuous feature of public law scholarship among political scientists (see Abraham 1987). Over the years a fairly diverse and distinguished group of social scientists have contributed to this effort (see Tate 1987). By 1981 there was sufficient interest among scholars affiliated with the International Political Science Association to convene the Mansfield College Conference on Comparative Judicial Studies. That same year Martin Shapiro gave a boost to these effort with the publication of his influential and widely read Courts: A Comparative and Political Analysis. Still, it was not until 1987 that the first collection of essays was published on “comparative judicial systems,” and even then the papers in that volume were characterized in the subtitle as representing “challenging frontiers in conceptual and empirical analysis” (Schmidhauser 1987). Over the course of 30 years a few more pioneers were recruited, but apparently the terrain was still a frontier.

Jürgen Habermas has from the start had the goal of developing a normative democratic theory based on rational consensus. From The Structural Transformation of the Public Sphere (1989a; first published in 1961) to The Theory of Communicative Action (1984, 1987), Habermas has sought to elaborate the underpinnings for such a critical theory of democracy, one that is oriented to the participation of reasoning citizens. In many respects, Habermas's recent Faktizität und Geltung, while cast as a philosophy of law, bears the fruit of that labor by offering his long-awaited “radical” democratic theory. Habermas calls his theory of democracy “deliberative politics,” clearly aligning himself with those contemporary political theorists who emphasize public deliberation and participation. However, many faithful readers of Habermas may find his approach to legal and political legitimacy in Faktizität und Geltung somewhat surprising. Rather than defending participatory democracy directly, he instead embeds these radical democratic principles in a complex account of the political and legal institutions of constitutional democracies.

Following both Pritchett and Gibson, we thought we were, in “Authoritarianism and the Functions of Courts” (Tate & Haynie 1993), extolling the virtues of an infrequently grown, but potentially beautiful or even useful, floral species: falsifiable, reproducible research on the role of courts outside the United States of America. Indeed, because our bloom grew outside the well-cultivated plots of the industrialized democracies, we thought it might be of still greater interest to the horticultural community of sociolegal studies. Thus we urged the members of that community to try their own hands at growing this rare blossom.

This commentary responds to the essays by Espeland and Gooding as ethnographic studies of the cultural construction of identity with a discussion of the concept of “cultural construction.” Sophocles' Antigone provides an extended illustrative example of how the poetics of identity are tied to the materiality of power. In the world of events, the concept of cultural construction is useful—as Espeland's and Gooding's essays show—as an alternative (and remedy) for the overuse of the concept of “choice.” To refer to identities as “cultural constructions” focuses attention on how powerful institutions and subjectivities are mutually implicated, without implying that people's needs and world-views are commensurable—or that the outcomes of their contests are fated.

In this essay I make a case for what I call a “moderate” and also an “empirically grounded” social constructionist approach, which I conceptualize as a further development of numerous strands of a longstanding and rich tradition. I argue that this approach, one I see as emergent now in cross-disciplinary work like that presented in this Symposium, can help to move scholarly discourse past the impasses posed by dichotomous, either/or thinking about law, society, and epistemology. To orient those unfamiliar with the pertinent scholarship, I begin with a sketch of the intellectual traditions and issues involved.

James Bohman's review (1994) contributes to an important goal for the American legal academy: bringing to us the recent focus on the role of law in society of Jürgen Habermas and, by extension, contemporary Frankfurt School social theory. These comments attempt to locate Habermas broadly in three discursive contexts. My purpose will be to suggestively examine whether and how the American legal reception of Habermasian ideas has been limited—the implicit rationale being that the reception is overdue. With almost all discussion of Habermas and law taking place in Europe, it seems we must ask, Why is there no [German] social theory in America, or at least in American law? After all, the United States became the home in exile for the Frankfurt survivors, and Habermas has been writing influentially in philosophy and political theory for more than 30 years. Yet, for reasons not altogether different from the revision and partial rejection of the other American exceptionalisms (socialism, labor politics, class formations, etc.), perhaps the question in fact should be more about the particularity of American treatment of the role of law in the reproduction of society than about Habermas and his ideas.

No living social theorist has worked harder or produced more on behalf of progress(ive) universalism and grand theory than Jürgen Habermas. Over the past 30 years, Habermas has sought to employ (and, in so doing, has enriched) a range of philosophies to advance the cause of human enlightenment and emancipation: Kantianism, the moral-developmental psychology of Kohlberg, the sociological Marxism of Offe and others of his own students, the philosophical pragmatism of Pearce, revived liberal Protestantism, the linguistics of Searle and others, and, now, even American legal liberalism. All these and more have been among the approaches he has tried and continues to try. As one of the world's leading public intellectuals, he has done battle with those who reject the emancipatory quest: whether they be German historians and politicians rewriting the past in the name of the nation and its elites or soî-disant postmodern radicals for whom particularity and irony are the only guarantors against oppressive rationalist homogenization and erasure.“