Law in Action

Ethnomethodological and Conversation Analytic Approaches to Law

Max Travers, John F. Manzo

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351922722
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Ethnomethodologists and Conversation Analysts have always been interested in the study of law and legal institutions and there is now a large body of empirical studies, representing a range of analytic traditions in each field. This collection introduces this literature and the research questions pursued by ethnomethodologists and conversation analysts, in an accessible form to a general audience in the inter-disciplinary field of law and society studies.

1 Ethnomethodology, Conversation Analysis, and the Sociology of Law

JOHN F. MANZO

Our goal in this collection is to represent the enormous range of ethnomethodological investigations of legal phenomena. We have, to this end, organized this book into two parts. The first comprises works that we consider paradigmatic of the perspectives of ethnomethodology and the closely-related field of conversation analysis as they apply to law, concentrating on works that have heretofore been unavailable or little-known outside of specialist circles. The second part includes papers that are more recent, which are informed, to varying degrees, by the exemplary works presented in the first section. The range of topics addressed in these pieces is large, employing different approaches to data collection and analysis and with different conceptions of how best to enact the perspective of ethnomethodology and conversation analysis. Despite this variety, there are a number of themes common to all studies, inside and outside of topics related to law, in the perspective. My strategy in this chapter is to provide a somewhat cursory overview of what kind of legal sociology ethnomethodology prescribes, to address how such an approach differs from those of orthodox legal sociologies, to review some classic works not included in this collection in order to map out the history of ethnomethodology and law, and to introduce and specify the common themes of the works in this book.

Conventional Legal Sociologies: A Brief Overview

“The law” has been a theoretical and empirical focus in sociology since before sociology was recognized as a unique discipline. Each of sociology’s founding practitioners addressed the law, or law-related issues, as illustrations or tests of their core concerns. For example, Weber’s famous exposition of legal modernization and the attainment of formal rationality in law reflected, and indeed may represent the clearest exemplification of, his substantive historical sociology. Durkheim saw the predominance of differing types of law—repressive and restitutive—as a kind of social barometer indicating the level of organic (or mechanical) solidarity in society, and thus perceived an intimate relationship between law and other social forms. Marx, while not directly addressing law directly to the same extent as did Weber or Durkheim, saw laws as aspects of the institutional superstructure that helped to protect ruling class interests (as in his criticism of the Black Act), and Marx’s intellectual heirs have helped expand this view. In each of these authors’ works, we see law as a resource employed in the service of larger theoretical themes. This observation helps denote an important difference between the perspective of ethnomethodology and those of more orthodox sociological perspectives, in the sociology of law and elsewhere. We see law, and the practical activities inhering in and constituting legal settings especially, as topics for analysis, and not as resources in the service of “larger” theoretical issues. As a study policy, this distinction is vital in ethnomethodology and conversation analysis (Zimmerman and Pollner, 1971). I will address this recommendation more fully after a brief discussion of more contemporary works in the sociology of law and the differences that obtain between them and ethnomethodology.

Much of the contemporary sociology of law adheres to the perspectives of sociology’s founders, at least, in theoretical and conceptual emphases. The approach of Weber has spawned studies that encompass interests in the classical Weberian topics of bureaucracy, rationality, and legitimation, as well as works that address his more micro-level interests in subjective understanding and interpretation. Durkheim’s legacy is that of functionalism and its variants, such as studies that address the relationship between social forms, political structures, and reactions to crime, and any approaches (including those in social anthropology) that employ the notion of “consensus” as a basis for law. The most productive strains in legal sociology today—the approaches of conflict theory, critical jurisprudence, feminism, globalization theory, and poststructuralism—are based (or in critical reaction against) assumptions and issues derived from Marx. On balance, the contemporary sociology of law is, like sociology in general, informed by the classics.

Despite the extent of traditional themes in contemporary legal sociology, however, one notable difference between the founding fathers and their heirs is the much greater current emphasis on empirical research. In addition to, and sometimes in place of, grand theorizing are more delimited studies that attend law at a more minute level. Lawyers’ work and the organization and stratification of the legal profession, courts and dispute processing, policing, penology, and governmental regulation have all been addressed, by contemporary sociologists, empirically (cf. Cotterrell, 1992). These investigations do sometimes clearly reflect theoretical orientations, but many are hardly informed by “theory” at all, as traditionally conceived. The most salient trend in the history of the sociology of law is not, in my view, the growth, demise, or resurgence of any particular theoretical perspective, but rather its transformation from a subfield concerned with evincing larger sociological theories and other more foundational issues to one that has become so (hyper-)empirically oriented that its basic theoretical motivations have, in many cases, been lost.

One way to account for this empirical turn in current legal sociology is to note that the priorities in the area are not so much those that satisfy any sociological theory, but those of law, legal practitioners, and the ideology of jurisprudence (cf. Grace and Wilkinson 1978; Berends, 1992; Travers 1993). In other words, the sociology of law has become an arena for the test of whether law, legal institutions, and legal actors are accomplishing mandates that are contained within the law itself. Sociolologists ask whether affirmative action legislation “works”, whether mandatory arrest for perpetrators of domestic violence “works”, whether judicial sentencing reform “works”, and so on. The concerns of legal practitioners—lawyers, judges, police officers, and so forth—have become the concerns of legal sociologists. This argument militates against the view of Cotterrell (1986:20), in writing on the connections between law and sociology, who says, “the appeal made by legal scholars who seriously seek to escape the disciplinary constraints of legal science is almost always ultimately an appeal to sociology in some form”. I would suggest to the contrary that sociologists “appeal” to legal science and jurisprudential priorities far more often than do legal scholars turn to sociology, whatever that might mean. Thus, whether we speak of positivist, realist, critical, feminist, or other perspectives, current sociolegal research is consistently defined by principles that are contained in the law, and the ideology surrounding legal practice.

A good example of this relationship is in research on juries, which has been the focus of much of my own work. Most conventional jury research assesses jurors and their decisions on the basis of criteria for “correct” decision-making that the law and their legal decision rules stipulate. Researchers ask whether a jury acquitted or convicted a defendant as a legally responsible act or as a “runaway” jury that has flouted its legal requirements. Although most sociologists who conduct jury research appear to be concerned with pro forma sociological questions, especially as they relate to the role of social-structural variables—race, class, and gender most especially—and their influence on the jury’s decision, such concerns are not, in the main, with reference to general “sociological” questions of the influence of demographic characteristics on human behavior. Instead, the emphasis is on the legal stipulation that juries make decisions according to legal considerations and juries’ official instructions, and without regard to the demographic or otherwise (legally) irrelevant characteristics of defendants, witnesses, or the jurors themselves (cf. Reskin and Visher, 1986). Thus, much of sociological research into jury deliberations evaluates jurors to ascertain how well, or how poorly, they meet behavioral standards that the law specifies.

The same conclusion can be drawn about much of the work in the sociology of law. The motivating question has become, “Are actors in legal settings accomplishing what the law prescribes?” and not, “What are actors in legal settings doing in the first place?”. It is this latter question, as I will presently illustrate, that concerns practitioners in ethnomethodology and conversation analysis.

We can thus summarize much of the sociology of law, whether we speak of classical or contemporary versions, as exhibiting two often disparate concerns. In classical works, law was seen as a propitious testing ground for the theorist’s larger sociological theories. Law and legal practices were not attended as topics sui generis, but in service to general sociological theorizing. In contemporary legal sociology, despite the longevity of classical theoretical strains, we see an emphasis on empirical studies that seem to obscure, and even obviate, bases in theory in favor of evaluative studies that address actors’ adherence to, or flouting of, standards of correct procedure that legal institutions themselves prescribe. In either variety, the sociology of law is informed by priorities that exclude and preclude the study of legal actors’ activities in their own terms, without deference to larger sociological questions and without prioritizing legal standards of conduct. The work in this volume is different: It scrutinizes the organization of activities that make law recognizable as a distinct form of social life. The analytic perspective here contends that the study of “law” requires this sort of attention. I will now address how this perspective has informed the sociology of law.

The Ethnomethodological Alternative

The approach of the authors in this volume is ethnomethodological. Ethnomethodology (Garfinkel, 1967; Heritage, 1984) is an area of sociology that concerns the practices of ordinary persons in daily life, in concert with other social actors, that create the appearance of enduring, stable, and predictable social order. Ethnomethodology is the study of the organization of everyday activities, the “how” of social organization. Ethnomethodological studies, based on ethnographic research, have examined the nature of practical reasoning in different casual and occupational settings (cf. Garfinkel, 1967; Turner, 1974 for exemplary collections). An area of social inquiry closely related to ethnomethodology, but with rather distinct data sources, presentation, and analysis, is conversation analysis (CA), which studies the interactional organization of talk and related activities in settings ranging from the everyday (for a collection see Atkinson and Hertitage, 1984) to the institutional (Boden, 1994; Drew and Heritage, 1992). Ethnomethodology and CA are, for all their difference in appearance and vocabularies, unquestionably part of the same enterprise. Both study the minutiae of social life in order to discover and explicate real actors’ practical reasoning and practical activities; both address, from the standpoint of the actors themselves, how social organization is done. Thus, where I use the term “ethnomethodology” and its variants here, it should be understood that I include CA in those illustrations.

Although its title may seem to suggest otherwise, ethnomethodology is not a “method” but an independent area of inquiry that constitutes a substantive subfield of sociology. Ethnomethodology is etymologically the “study of members’ methods”, where “member” is an ordinary person, a participant in mundane social life; and his or her “methods” are the ordering, or sense-making, practices that persons in interaction recurrently produce and reenact (Garfinkel, 1974). Ethnomethodology is unique among areas of sociology and social science as a whole, including so-called “creative” sociologies, because it does not pursue the development of typologies or other analytic constructs (such as ethnographic models, statistical relationships, or ideal types), but attempts to specify how actual persons accomplish perceivedly stable social order as a day-to-day, moment-by-moment achievement. For ethnomethodology, actual practices need not be modified or respecified as idealized constructs, because actual practices are already endogenously organized:

From an ethnomethodological standpoint, “raw” experience is anything but chaotic, for the concrete activities of which it is composed are coeval with an intelligible organization that actors “already” provide and that is therefore available for scientific analysis. Central to the achievement of this organization are practical activities through which actors produce and recognize the circumstances in which they are embedded. The principle aim of ethnomethodology is to investigate the procedural accomplishment of these activities as actual, concerted behaviors (Maynard and Clayman, 1991:387).

Ethnomethodological studies have concerned a variety of topics, and have been conducted in a variety of settings, as Maynard and Clayman (1991) address in discussing “the diversity of ethnomethodology”. Ethnomethodology is therefore not a monolithic enterprise. It is multi-faceted. The settings in which analysts have conducted studies have varied, from the analysis of the social organization of “casual” telephone calls to a myriad of studies conducted in institutional settings, including encounters between doctors and patients, among scientists in an astronomy laboratory, in business meetings, and in many other sites of social interaction. One particularly propitious arena for ethnomethodological analysis has been the legal arena.

The history of the relationship between ethnomethodology and legal topics resonates with that between law and sociology as a whole. Some of the earliest ethnomethodological studies were of legal topics, many of which were conducted before the word “ethnomethodology” existed (Atkinson, 1981). Among these venerable studies are four that stand out, because they have so thoroughly been assimilated into “mainstream” legal sociology and criminology that non-ethnomethodologists often fail to recognize them as ethnomethodological classics. The studies are those of Sudnow (1965) on “normal crimes”, Bittner (1967) on peacekeeping practices among police on “skid row”, Garfinkel (1967) on jurors’ reasoning practices, and Wieder (1974) on the “convict code” as reported by prison inmates. Each of these pieces treated as its central topic the methods used by “members” (attorneys, the police, prison inmates, and jurors themselves) without regard to their adequacy or appropriateness from the standpoint of legal professionals. These investigations all sought after how participants themselves described and conducted their activities, and all found that members’ own descriptions were different from those of official sources, and furthermore that these members’ descriptions merited study as topics in their own right.

Thus, Sudnow examined reasoning practices of a group of lawyers attempting to determine equivalent treatment in plea bargaining to illustrate how legal codes do not necessarily govern legal practice, even among “professionals”. Bittner interviewed and observed police officers and discovered that police do not regard their work as either “law enforcement” or “order maintenance” (to cite terms familiar to any student of police science or criminal justice), but as “peacekeeping”. This term has now become so pervasive in accounts of police work that police officers are sometimes referred to, officially and unofficially, as “peace officers”. This label, in a manner that is at variance with the history of most complex organizations, was created to accommodate the officers’ own view of their work, instead of having been imposed “from the top”. And that view was provided in Bittner’s groundbreaking research.

Garfinkel, in a piece drawn from the famed and infamous Chicago Jury Project of the 1950s, was the first (and, until my own work several decades later, the only) researcher to examine the behavior of actual jurors in deliberation. He discovered that jurors produce a set of rules that define standards of “correct” procedure that are different from, if not inconsistent with, the rules prescribed them by the judge and the rules that researchers traditionally have used as yardsticks for the veracity of their decisions. This investigation was important not only for understanding juries’ interactional dynamics “from the inside” for the first time, but also in developing the entire area of inquiry that Garfinkel would call “ethnomethodology”, since it was during this project that Garfinkel firs...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Preface
• 1. Ethnomethodology, Conversation Analysis, and the Sociology of Law
• Part I: Exemplary Studies
• Part II: Contemporary Contributions
• Index