In an increasingly diversifying society, public space is the quintessential social realm¹x Lofland 1998. where members of that diverse society meet each other. Thus space is shared, whilst norms regarding that space are not always shared. Of rivalling norms, some are codified into formal law, in a process Habermas called juridification. Early Habermas regarded juridification a negative process, ‘colonizing the lifeworld’. Later Habermas argued juridification a viable pillar for conviviality in diversity. The shift in Habermas’ perspective invites the question how law works in action. In this article a frame is offered to scrutinize the working of law in action in public space, by applying the conceptual triad of spatial thinker Lefebvre to understand how law is “produced”. It argues that how law is perceived in action is pivotal to understanding how law works in action. Moreover, it discusses the possible ramifications of the perception of law in action for how the legal system as a whole is perceived.

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• 1 Lofland 1998.

According to the precautionary principle lack of scientific evidence for the existence of a certain (environmental) risk should not be a reason not to take preventative policy measures. The precautionary principle had a stormy career in International environmental law and made its mark on many treaties, including the Treaty on the Functioning of the European Union (TFEU). However it remains controversial. Proponents see it as the necessary legal curb to keep the dangerous tendencies of industrial production and technology in check. Opponents regard it with suspicion. They fear it will lead to a decrease in freedom and fear the powers to intervene that it grants the state. In this article the principle is reviewed from the perspectives of Ulrich Beck’s ‘reflexive modernisation’ and Michel Foucault’s notion of governmentality. It is argued that from Beck’s perspective the precautionary principle is the result of a learning process in which mankind gradually comes to adopt a reflexive attitude to the risks modernity has given rise to. It represents the wish to devise more inclusive and democratic policies on risks and environmental hazards. From the perspective of Michel Foucault however, the principle is part and parcel of neo-liberal tendencies of responsibilisation. Risk management and prudency are devolved to the public in an attempt to minimise risk taking, while at the same time optimising production. Moreover, it grants legitimacy to state intervention if the public does not live up to the responsibilities foisted on it. Both perspectives are at odds, but represent different sides of the same coin and might learn from each other concerns.

Since the 18^th century the ‘contractual model’ has become both a paradigm of social theories (f.i. ‘rational choice’) and a dominant model of structuring labour relations. Its presupposition of the subjectivity of individual actors as a given is criticized with reference to network-based theories (Latour, Callon) and to analyses of Foucault. The current contract model of labour relations is analyzed from a historical perspective on normative regimes of labour relations, that imply different conceptions of ‘subjectivity’. Research into the regulation of labour relations requires an analysis in terms of an entanglement of human beings, technologies and legal discourse.

Seeing that the role of opinio juris in the identification of customary international law is essentially contested, this contribution seeks to explain how this concept plays a fruitful role in legal doctrine despite of, or perhaps even due to, this essential contestedness. To that effect the paper adopts a constructivist perspective, primarily drawing from Bourdieu’s theory of practice and Berger & Luckmann’s ideas about institutionalization. In this perspective, contested concepts such as opinio juris are conceived of as multifaceted tools of knowledge production in the hands of members of epistemic communities.

This article seeks to answer how useful the theoretical approaches developed in Europe and the United States are for explaining or understanding the autonomy of law in Indonesia – a nation that is on the verge of becoming a lower-middle-income country and whose legal system presents many of the features found in other developing countries’ legal systems. The article first sketches three lines of theoretical thought that have dominated the inquiry into autonomy of law in (Western) sociology and then assesses to what extent they are represented in the socio-legal studies of Indonesian law. The conclusion is that although socio-legal scholars studying developing countries need supplementary concepts and theories, they can use the Western ones as their point of departure in understanding the functioning of law in a setting that is very different from the one in which these theories were developed.

Free will is a key assumption of our system of criminal justice. However, the assumption of a free will is questioned by the rapidly growing empirical findings of the neuro and the brain sciences. These indicate that human behavior is driven by subconscious forces beyond the free will. In this text I aim to indicate how social theory might contribute to this debate. This text is an attempt to demonstrate that social theory does not automatically side with the deterministic attacks on free will. The denial of the free will is to a great extent based on a flawed interpretation of free will, in which it is seen as a capacity of separate individuals. I will suggest that it is the sociological realization that free will is embedded in intersubjective relations that helps to clarify which value is at stake when we deny free will. Free will presumes social practices and social relations that facilitate moral and political discourse. As long as we see human actors as capable to evaluate these practices and contexts in moral and political terms, we cannot deny them a free will. My argumentation will build on the theories of Peter Strawson, Anthony Giddens and Jürgen Habermas.

Is online dispute resolution (ODR) the way to organise 100% access to justice? Or is it more of a bubble-solution looking for a problem? Experiences are mixed but there are reasons to be optimistic. A Dutch example of an online divorce platform show how technology can better serve the justice needs of citizens. But for that we need to stop thinking in terms of ADR, ODR and court litigation but rather design more hybrid processes.

‘I felt so sorry for you, such a lovely tool, and then you have no users!’ This was one of the comments after my presentation of the eKantonrechter at ODR 2016, organized by HiiL in The Hague in May 2016. ODR, online dispute resolution, was presented as a tool to solve all problems in the 4^th Trend Report by HIIL after the conference. Arno Lodder, in a weblog, commented that ODR had raised hopes in its early promoters, but had not really taken off.
ODR is a tool to help parties in the dispute resolve their problem. There are various examples of ODR tool: supporting double blind bidding to determine a sum of money, working out divorce settlements, negotiating a solution and taking a case to court.
Interesting research questions abound in the area of ODR and its users: What paths do people take when trying to resolve a problem? How can people have ownership of their court procedure? How can solutions, ODR and court procedures, best be tailored to the type of problem?
ODR and its users is a field in which law and society researchers can effectively contribute to improving digital problem solving and dispute resolution procedures in court.

Liability insurances shift the financial risk of the loss of a damage from the person who is liable for the damage to the liability insurer. To avoid negligent behavior of the insured, the insurer provides different prevention tools in the insurance policy. The insurer will attach certain sanctions or rewards to certain behavior and certain circumstances in the general conditions of the insurance contract. This research raises the question of the effectiveness of these instruments. The hypothesis is that without knowledge of the insured of these sanctions or rewards, these sanctions and rewards will not form an additional incentive for careful behavior and they will have no preventive effect. Additionally, these prevention tools may undermine the protection of the insured. For this reason the legislature has limited the freedom of contract. This study examines the extent to which the legislature has limited the possibilities of the insurer to provide in prevention tools in de insurance policy. It assesses the extent to which the legislature may or may not succeed in its purpose to protect the insured, and on the other hand, where there are still possibilities for the insurer to fulfill its prevention task.

Recent developments in the field of housing law have led to a renewed interest in eviction and the legal protection against homelessness. Because of European case law, courts need to apply a contextual approach in which tenants’ home interests and personal circumstances are taken into account more seriously. This paper explores the ways in which home interests and personal circumstances play a role in Dutch litigation concerning eviction because of rent arrears. Based on a quantitative systematic content analysis of nearly 100 written judgments of courts of first instance, it is found that tenants frequently advance various types of proportionality defences and refer to home interests and personal circumstances. Although Dutch courts do take these defences, home interests and personal circumstances into account, the vast majority of landlords’ claims are allowed. In one third of the analysed cases, the court dismisses the landlord’s claim and most of the time minimises the breach of the lease or refers to the disproportional effects of eviction or a tenant’s promise to change his behaviour.

Self-regulation not always implies autonomy. Spontaneous self-regulation should be distinguished from commissioned self-regulation. The latter form of self-regulation is nowadays widespread and the result of outsourcing governmental activities. Outsourcing can be conceptualized in terms of Principal-Agent relations, in which the P commissions an A to realize P’s aims. In commissioned self-regulation the A is often constituted by the P and required to make rules in order to advance P’s aims. However, rule-making is not an activity which remains unaltered if it changes hands. In a context of spontaneous self-regulation rules fulfill a variety of functions. They guide actions and decision-making, they serve as both justification and as criticism of actions and decisions, and will thereby limit arbitrariness. In commissioned self-regulation, these manifold functions tend to be reduced to one dominant function: justifying performances towards P. In the latter capacity rules tend to be formalized and presented in a format that enables the P to arrive efficiently at a decision. Moreover, for the P the content of the rules matters less than their existence. The degree in which the external function of rules prevails determines not only how rules are presented but also how they are drafted and selected. The more A anticipates the perspective of P, the more autonomy risks to be undermined.

Becker’s theory on crime and punishment provides guidelines for designing an optimal law enforcement policy. In designing such a policy the costs of law enforcement should be traded-off against the benefits that originate in deterring criminal acts. We investigate whether law enforcement policy in the Netherlands is consistent with this guidelines. Since policy makers are not very precise on the goals of law enforcement policy and hardly anything is known about the effectiveness and efficiency of instruments, it turns out to be impossible to say whether law enforcement policy actually contributes to social welfare. This is not necessarily problematic if, in line with the efficient law hypothesis, law enforcement automatically converges to an efficient outcome. Furthermore, Becker’s theory appears to miss a crucial element by not taking account of existing preferences for retribution. If utility is derived from seeing that justice is done, this should be included in the welfare criterion. Assuming policy makers prefer welfare enhancing law enforcement, they would be well-advised to start systematically collecting information on the effectiveness and efficiency of instruments of law enforcement policy.

This article critically evaluates the prevailing factor-oriented (e.g. a priori defined legal and extralegal characteristics of defendants) approach in analyses of judicial decision-making. Rather than assuming such factors, we aim to demonstrate how Dutch judges engage in interpretative work to arrive at various sentence types. In their interpretative work, judges attempt to weigh and compare various legal and extralegal features of defendants. Importantly, they do so in the context of the case as a whole, which means that these features do not have independent or fixed meanings. Judges select and weigh information to create an image of defendants’ redeemability. However, extralegal concerns other than redeemability also inform judges’ decisions. We argue that studying the naturally occurring interpretative work of judges results in a better understanding of judicial decision-making than outcome-oriented studies, which view criminal cases as collections of independent legal and extralegal factors.