R. Banakar, M. Travers, eds., Oxford, Hart, 2005
Numerous methods texts and handbooks exist for researchers working in the fields of educational research, media studies, nursing, management, social work, criminology and even leisure and tourism. There is, however, no text that covers how one can do research about law and legal processes from a variety of social scientific standpoints.[2] Many socio-legal researchers would argue that their undertaking requires no special methods besides those already used in social sciences. Law is, after all, only a social institution, in the same way as religion, medicine or education, and can be studied using the same methods and techniques. Having said that, criminology also requires no special research methods besides those already developed and used by mainstream sociology. Criminologists are, nonetheless, keen to produce methods textbooks on how to research crime and criminal justice and debate methodological issues arising out of their research.[3]Most of the papers in this collection were presented at a workshop that took place on research methods at the International Institute for Sociology of Law, Onati, Spain in April 2003.[1] They illustrate how a range of topics, including EU law, ombudsmen, judges, lawyers, Shariah Councils and the quality assurance industry can be researched from a socio-legal perspective. The objective of the collection is not, however, simply to present an interesting set of papers, but to use them to explore how different methods can be used in researching law and legal phenomena, and how methodological issues and debates in sociology are relevant to the study of law.
As we shall argue in chapter 1, too great a concern with following a prescribed method can limit creativity in research by imposing a standard way of investigating law and legal institutions. From this standpoint, the absence of a methods text might be seen as a good thing: it helps to maintain socio-legal research as a truly interdisciplinary field which is open to theoretical diversity and innovation. Alternatively, it could indicate a lack of interest among socio-legal researchers to engage in social scientific debates on methodology. This indifference towards methodology might be explained in terms of the relative isolation of law schools, which still provide a home for much of socio-legal research, or because many of those who do socio-legal research are not trained in social sciences. Using a similar explanation we could say that criminologists are interested in writing about methods and debating methodology partly because they are, unlike most socio-legal researchers, based at social science faculties where problems of research method and issues of methodology loom large.[4]
Whatever the reason for this ‘anomaly’, it has at least one important implication for socio-legal research. The absence of methods texts means that the experiences of researching law which were gained by one generation are not readily available in a systematic fashion to the next generation. This makes teaching socio-legal research difficult, and can disrupt attempts to develop robust or cumulative scholarly traditions.[5] In this connection, we should not underestimate the achievements of socio-legal researchers in using various empirical methods to study what is legal about legal processes, legal institutions and legal behaviour. These legal properties are not the primary concern of social scientists whose specialisations and interests do not include law and are, therefore, not addressed in their methodological writings and debates. Non-socio-legal methods textbooks tell us about the various techniques of data collection and analysis through surveys, interviews, participant observation or discourse analysis and introduce us to the broader methodological debates which engage many social scientists. Yet, they do not tell us the first thing about what it means to interview judges or lawyers in different jurisdictions, observe mediation, dispute resolution or other forms of negotiation in the context of different legal cultures or analyse legal documents in a sociological way.
The collection of papers presented in this volume does not aim to fill the methodology vacuum within socio-legal studies. Instead, it make a modest attempt to draw attention to the need to reflect on the methodological issues of socio-legal research and to show that socio-legal research can gain from the general debates on methodology.
- SOCIO-LEGAL RESEARCH, LAW AND SOCIAL SCIENCES
Socio-legal studies in the UK, which provides the context of the discussions here, in chapter 1 and in the final section of the book, has grown mainly out of law schools’ interest in promoting interdisciplinary studies of law. Whether socio-legal studies is regarded as an emerging discipline, subdiscipline or a methodological approach, it is often viewed in the light of its relationship to, and oppositional role within, law.[6] In that sense it should not be confused with legal sociology of many West European countries or the Law and Society scholarship in the US, which foster much stronger disciplinary ties with social sciences. The Annual Conference of the Socio- Legal Studies Association in 2003 was attended by 370 UK academics, 87% of whom were based in law departments.[7] This shows that lawyers, and not social scientists, are the main actors in the field of socio-legal research in the UK.
To further clarify the status and approach of socio-legal studies, we could, as Wiles and Campbell did some thirty years ago, contrast it with the sociology of law. The sociology of law receives its intellectual imputes mainly from mainstream sociology and aims to transcend the lawyer’s focus on legal rules and legal doctrine by remaining ‘exogenous to the existing legal system’, in order to ‘construct a theoretical understanding of that legal system in terms of the wider social structures’.[8] That is why ‘the law, legal prescriptions and legal definitions are not assumed or accepted, but their emergence, articulations and purpose are themselves treated as problematic and worthy of study’.[9] Socio-legal studies, on the other hand, often employs sociology (and other social sciences) not so much for substantive analysis, but as a tool for data collection.
Admittedly, socio-legal studies has developed and become theoretically and methodologically diverse since Wiles and Campbell introduced their ideal typical distinction between the two approaches mentioned above.
Socio-legal research has, for example, become on the whole less empirical— to the extent that some senior researchers in the field have declared a state of emergency to save the empirical studies of law.[10] At the same time, forms of discourse analysis, cultural studies, feminism and postmodern schools of thought have gained ground within socio-legal research. This development is captured in more recent attempts to define the aims and disciplinary boundaries of socio-legal research not so much in relation to empirical research, but in terms of academic competition within law. Wheeler and Thomas, for example, perceive socio-legal studies as an interdisciplinary alternative and a challenge to doctrinal studies of law. For them the ‘socio’ in socio-legal studies does not refer to sociology or social sciences, but represents ‘an interface with a context within which law exists’.[11] That is why, when socio-legal researchers use social theory for the purpose of analysis, they often tend not to address the concerns of sociology or other social sciences, but those of law and legal studies.
We are, however, arguing that the separation between the sociology of law and socio-legal studies is an obstacle which hinders the development of the social scientific studies of law.[12] We hope that the chapters in this volume demonstrate that social scientific studies of law can break new grounds and become a serious contender to the traditional forms of legal research first, and only if, they develop a genuine awareness of the consequences of social scientific debates for their research practices. All the contributors to this collection, whether based at law schools or social science departments, are grappling with these issues, but also recognising the need to transcend beyond the boundaries of established disciplines such as law, sociology, political science or social anthropology. Socio-legal researchers show a far more sophisticated awareness, than in previous years, of different approaches in sociology, and recognise that there is always more to learn by participating in methodological debate. Sociologists and social anthropologists are, increasingly, recognising the need to address and understand the content of law. Anne Griffiths, to give one example, argues convincingly in her conclusion to chapter 6 that ethnography provides the most effective method for achieving this insight. There are many good examples of successful analysis of the substantive contents of law through sociological methods and theories from Max Weber’s analysis of legal ideas and institutions to Doreen McBarnet’s classical study of conviction and Yves Dezalay and Bryant Garth’s study of international commercial arbitration.[13] These studies show that social sciences do not need to limit the scope of their studies to the external behavioural and institutional aspects of law and can, in fact, grasp and analyse the internal constitution of the law.
- THE STRUCTURE OF THIS COLLECTION
This collection consists of sixteen chapters. The first chapter considers the nature of socio-legal research by examining the different perspectives of lawyers and sociologists and the challenges that arise in doing interdisciplinary work. Our main argument is that these perspectives are necessarily very different. Sociologists need to appreciate how academic and practicing lawyers approach, describe and use law. Similarly, socio-legal researchers, whose academic background is in law, but wish to do more than simply write generally about ‘the law in context’, must somehow find their way around the theoretical and philosophical debates that constitute sociology as an academic discipline.
We will present the remaining fifteen chapters in six sections. The first section on ‘Method Versus Methodology’ contrasts two papers, by John Flood and Klaus A Ziegert, which discuss how qualitative methods can be used to address law from opposing theoretical perspectives. Flood is an interpretivist, influenced by symbolic interactionism, an approach which is committed to addressing the perspective of the social actor. Ziegert is a systems theorist working in the tradition of Niklas Luhmann, and so argues that ethnographic research of this kind is limited, and not sufficiently concerned with ‘universals’. By contrasting these two approaches, which are articulated by Flood and Ziegert, we hope to demonstrate a fundamental (paradigmatic) difference in the study of law and society.
The next section on ‘Ethnography and Law’ contains three chapters by Thomas Scheffer, Samia Bano and Anne Griffiths. Scheffer’s research uses actor-network theory to describe the work of judges and lawyers. Bano and Griffith’s chapters adopt a feminist qualitative approach to law. These papers are grouped together here because, each in its own way, uses fieldwork and presents an ethnographic approach to the study of legal phenomena. Scheffer uses ethnography to study the everyday practices of legal work, Bano uses ethnographic observation to research the use of unofficial legal bodies, such as the Shariah Councils, by South Asian Muslim women living in Britain and Griffiths uses the fieldwork she carried out in southern
Africa, among Bakwena, to document how people experience law in their daily life and to challenge the western notions of law.
The papers in section three by Reza Banakar Mary Seneviratne and Bettina Lange present different forms textual analysis. Banakar and Seneviratne focus on how to use textual and discourse analysis to study the institute of ombudsman. In addition, Banakar draws attention to the empirical properties of legal cases and how they can be used to carry out sociological studies of legal regulation and institutions. Lange’s chapter, on the other hand, uses discourse analysis to examine the socio-legal mechanisms of the European Union in an attempt to generate new insights in the EU law.
Section four on ‘Structural Approaches’ consists of two chapters. The first chapter by Ole Hammerlsev shows how a sociological method inspired by Pierre Bourdieu can be employed in the study of law. The second chapter by John Paterson and Gunther Teubner contains an empirical study informed by autopoiesis theory. Hammerslev shows how Bourdieu’s theory may be employed empirically to understand legal institutions and to examine the social construction of the legal profession. Paterson and Teubner provide a clear and thoughtful understanding of how autopoiesis can be used to conduct socio-legal research by examining the conflicts between regulators, offshore oil industry and engineers. Despite the apparent differences between the theoretical frameworks used by Hammerslev and Paterson, both these approaches represent examples of how structural functionalism can be used to study law.
In section five we turn our attention to how the concept of ‘legal culture’ can be used to conduct socio-legal research. The first chapter in this section is by David Nelken, who provides an overview of comparative socio-legal research into criminal justice systems from a cultural standpoint. Nelken also describes some of the conceptual and methodological issues arising out of doing research in, and about, different (legal) cultures. The second chapter is by Marina Kurkchiyan who also engages with problems of studying legal cultures, but this time in the context of the recent transformation of the Russian legal system and with the intention to explain how law is conceived in post-soviet Russia. Kurkchiyan’s chapter provides an insightful account of the process involved in the study of a legal culture in transition.
Scholars based in different countries and representing different traditions of research wrote the first five sections of this book. These studies were organised in accordance with their methodological orientations, rather than the national origins of their authors. Presenting these studies without taking into account the tradition of research in various countries gave an overview of how socio-legal research is developing. Needless to say, the studies presented here do not provide us with a sufficiently broad international base for generalising about the direction of socio-legal research worldwide. Yet, they do give us a general idea about methods, theories and research topics, which appeal to socio-legal researchers in some West European countries.[14]
In the final part of this book, in section six, we turn our attention to how socio-legal research has developed in the UK. Michael Adler provides an example of the applied research conducted for government agencies. He describes what was involved in designing questions for a national survey to investigate people’s experiences of administrative bureaucracies and how they pursue complaints about government departments and public bodies. The two concluding papers, by Andrew Boon and Max Travers, look at changes in the research environment that may have important consequences for socio-legal research: the rise of the ethics committee, and pressures to conduct evaluation research. The last section has a slightly different focus also in that we are looking at the debate between policy and pure research, which is particularly relevant at the moment when there is great pressure to gear our activities as researchers and the university curriculum to the needs of government agencies.
This is, to some extent, an arbitrary division of the papers, although it allows us to show how the general debates in sociology, and methodological issues that we review in this introductory chapter, are relevant to socio- legal research. We will also use the section introductions to explain bodies of theory or methodological issues raised in the papers, so we hope that reading the papers in conjunction with the introductions should provide some useful insights, and suggest further reading in the same way as our text on law and social theory.[15]
We should make it clear at the outset that only a limited range of theoretical traditions were represented at the workshop, and we are not trying to produce a general handbook that demonstrates systematically how social scientists can study socio-legal topics. There was a lively debate between ethnographers in the symbolic interactionist and ethnomethodological traditions and researchers influenced by systems theory, but many methodological positions were not represented, so we did not have, for example, a debate between poststructuralists and critical theorists, nor did we explore the distinction between particular approaches within one methodological camp. There is, however, no need for this book to be comprehensive. We will simply be trying to convey the critical discussions about the nature of law as a topic and the difficulty of studying it that took place during the workshop.
We are pleased that the collection contains contributions from socio-legal researchers working or researching in a number of countries, including Australia, Denmark, Germany, Italy, Russia, Sweden and United Kingdom. We hope that the examples we use will demonstrate why methodological debate and discussion is valuable for socio-legal research, and indeed the only way forward to develop the field. We would also ideally like the book to raise questions and problems, rather than giving the impression that everyone agrees over how to study the social world.
ACKNOWLEDGEMENTS
We are grateful to the International Institute for the Sociology of Law for supporting our workshop in March 2003 and facilitating the publication of this volume. We would also like to thank the contributors for their commitment and patience—there was a long editing and reviewing process, but we are pleased that the collection has finally been published. The ideas and arguments are certainly still current!
We acknowledge permission from Social and Legal Studies to publish material from Volume (1999) 7(4) entitled ‘Changing Maps: Empirical Legal Autopoiesis’ in chapter 11.
[1] It also developed out of a workshop that took place in Oxford in September 2000, and two sessions on methodology organised for the first time at the Socio-Legal Studies Association annual conference in Nottingham in April 2003.
[2] Some of the earlier edited collections included a section on doing research—for example see RJ Simon, (ed), The Sociology of Law (San Francisco, CA, Chandler, 1968)—but more recent collections make no similar attempts to focus on the methodological issues of socio- legal research.
[3] For examples see V Jupp, Methods of Criminological Research (London, Routledge, 1999) and FE Hagan, Research Methods in Criminal Justice and Criminology (New York, NY, Allyn & Bacon, 2001). An issue of the British Journal of Criminology was devoted to discussing the methodological dilemmas of criminological research. See (2000) 41 British Journal of Criminology.
[4] Compared to socio-legal studies and sociology of law, criminology is a well-established discipline which is taught at all social science faculties. It is reasonable to expect that criminology’s disciplinary standing helps to motivate many criminologists to produce methods textbooks and debate methodology. We could, however, turn this argument around and ask if the absence of similar concern with methodological issues of socio-legal studies is not one of the factors hindering its transformation into an academically stronger field of research and teaching?
[5] Not surprisingly, there have been similar discontinuities in socio-legal theorising. For a discussion see R Banakar, Merging Law and Sociology (Berlin, Galda & Wilch, 2003).
[6] See PA Thomas, ‘Introduction’ in PA Thomas, (ed), Legal Frontiers (Aldershot, Dartmouth, 1996) 3.
[7] Also see The Nuffield Inquiry on Empirical Research in Law at http://www.ucl.ac.uk/ laws/genn/empirical/docs/background.doc.
[8] See CM Campbell and P Wiles, ‘The Study of Law in Society in Britain’ (1976) 10 Law and Society Re-view 553.
[9] Ibid.
[10] See The Nuffield Enquiry on Empirical Research in Law, above, n 7.
[11] S Wheeler and PA Thomas, ‘Socio-Legal Studies’ in DJ Hayton, (ed), Law’s Future(s) (Oxford, Hart Publishing, 2002) 271. Also see PA Thomas, ‘Socio-Legal Studies: The Case of Disappearing Fleas and Bustards’ in PA Thomas, (ed), Socio-Legal Studies (Aldershot, Dartmouth, 1997).
[12] For a more detailed discussion see Banakar, above, n 4.
[13] M Weber, Max Weber on Law in Economy and Society (Cambridge, MA, Harvard University Press, 1954); DJ McBarnet, Conviction: Law, the State and the Construction of Justice (London, Macmillan, 1981); Y Dezalay and B G Garth, Dealing in Virtue (Chicago, IL, University of Chicago, 1996).
[14] There are no studies in this book by researchers from certain parts of the world, such as Africa, Asia and South America. As wa result this collection should be read mainly as a West European debate on theory and methods.
[15] See R Banakar and M Travers, Introduction to Law and Social Theory (Oxford, Hart Publishing, 2002).