Theory and Method in Socio-Legal Research

Reza Banakar, Max Travers, Reza Banakar, Max Travers

• Publisher: Hart Publishing
• Year: 2005
• ISBN:
  9781847316912
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Socio-legal researchers increasingly recognise the need to employ a wide variety of methods in studying law and legal phenomena, and the need to be informed by an understanding of debates about theory and method in mainstream social science. The papers in this volume 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 to show how different methods can be used in researching law and legal phenomena, how methodological issues and debates in sociology are relevant to the study of law, and the importance of the debate between "structural" and "action" traditions in researching law. It also approaches the methodological problem of how sociology of law can address the content of legal practice from a variety of perspectives and discusses the relationship between pure and applied research. The editors provide a critical introduction to each of the six sections, and a general introduction on law, sociology and method. The collection will provide an invaluable resource for socio-legal researchers, law school researchers and postgraduates.

1

Law, Sociology and Method

REZA BANAKAR AND MAX TRAVERS

Socio-legal research is, in some respects, founded on a paradox in that, while it claims or aspires to be an interdisciplinary subject with particular ties with sociology, the majority of its practitioners are based in law schools, and have not received any systematic training in either sociological theory or research methods.¹ There are, of course, many academics from other disciplines who have contributed to the field over the years, and whose studies appear on undergraduate reading lists. There has also been genuine collaboration between academic lawyers and social scientists that has resulted in many interesting and insightful studies about law. Nevertheless, we would argue that this inter-change has been limited to a few institutions, and that a sustained and open dialogue with sociology, or for that matter with other academic disciplines, has not so far taken place.

In this chapter we will consider the nature of socio-legal research, especially as it has developed in the UK, and the challenges of working in an interdisciplinary field. We will then introduce some general debates in sociology about method and show how these are relevant to studying socio-legal topics. We will conclude this chapter by referring to the Nuffield Foundation Inquiry on Empirical Research in Law which expresses concern for the ‘dwindling of capacity to undertake rigorous empirical research in law’.² We will argue that to create a sound foundation for empirical research into law we need to introduce research methods and project work into the undergraduate law school curriculum, despite the current pressures in the direction of a narrow degree based almost entirely on studying legal rules.

A. THE NATURE OF SOCIO-LEGAL RESEARCH

The fact that the overwhelming majority of socio-legal researchers are based at law schools does not by itself mean that they do not, or cannot, produce sociologically-informed research about law.³ It rather means that their academic point of reference is influenced in the first place by the aims and aspirations of law, legal education and legal studies.⁴ They are, for example, more often exposed to debates within legal theory than in sociology or anthropology. This has an adverse effect on the degree to which they participate in the internal debates of other disciplines. In addition, one should not forget that legal studies does possess its own disciplinary debates and concerns too. Socio-legal scholars who make their careers in legal education and legal research have to remain informed about legal debates if they are to continue as legal scholars. They are not, however, expected to engage in debates within sociology. In fact, those very few scholars who attempt to engage in debates in both law and sociology soon discover that they are spreading their intellectual resources too thin.

Similarly, mainstream sociology pays very little attention to law and no attention to academic debates within legal studies. This is perhaps only to be expected because after all sociologists are not using legal theory and methods to conduct research. Yet, sociology’s relationship to law becomes slightly more complicated when we realize that the study of law played a significant role in the formation of classical sociology and social anthropology. However, the interest originally shown by the forerunners of sociology and anthropology, such as Weber, Durkheim and Malinowski to name a few, in studying law, legal behaviour and legal institutions was not sustained by modern sociology. Besides social philosophers such as Jürgen Habermas and the systems theorist Niklas Luhmann (who happened to be a lawyer by training), we find few contemporary scholars who seriously engage with the study of law in order to develop a sociological theory. Those few who do so are not based at sociology departments, but often attached to a handful of research institutes devoted to promoting socio-legal research. Looking at the work that most of these scholars produce, we often find attempts to use ideas and approaches of modern social theorists to study of law.⁵ The diminishing interest of mainstream sociology in law is also reflected in sociology curricula and courses offered by sociology departments in most countries. While courses in sociology of crime, race, science, education, health (or medicine) and sport are offered by most sociology departments, courses in sociology of law are conspicuous only by their absence.

Roger Cotterrell, in what is still the most widely-read introductory text on sociology of law, argues that the interdisciplinary approach to the study of law should transcend the narrow disciplinary perspective of ‘academic sociology’. Drawing on Bauman, he aligns himself with ‘postmodernism’s harsh judgment on science as a network of specialisms’: ‘Science has lost its capacity to enlighten ordinary citizens as it has become so intricate and esoteric that only the masters of sub-specialisms of specialisms within scientific disciplines can follow selected pathway’s through science’s knowledge-mazes’.⁶

This criticism of sociology is, to some extent, misplaced since one way of understanding the history of the discipline is as a series of debates over whether it should become like natural science. Avowedly anti-scientific intellectual movements like postmodernism and poststructuralism can also be criticised for becoming specialisms with their own technical language, and methods.⁷ One can see, however, that even without this theoretical justification, the view that socio-legal scholarship does not need to engage with sociological theory or method too deeply might appeal to researchers who would otherwise have to undertake much work understanding specialist debates in sociology and acquiring a competence in technical, demanding methodologies such as log linear or conversation analysis. We have also come across academics from other disciplines who are full of praise for the interdisciplinary character of socio-legal studies after attending conferences. They like the fact that it is a friendly, tolerant field, and they do not have to face the critical responses about theory and methodology they would expect from colleagues in their own discipline.

Our own position is that socio-legal research would benefit from more engagement with sociology, and in particular with the debates about method that take place between and within different theoretical traditions. This aspiration characterised the first thirty years of the American law and society movement, and the initial period of socio-legal research in Britain. It has, however, only had limited success in attracting academics from outside law schools into the movement, or breaking down the intellectual boundaries between the two fields. In more recent time, the field has become divided between policy researchers who have a positivist understanding of method, and critical scholars who have little interest in doing empirical research.⁸ The sociological research on law that has been conducted is fragmented, and theoretically undeveloped in relation to sociology.⁹ There have also been relatively few empirical studies of law when compared to the large literatures in the sociologies of medicine, education or science. It is important to understand this intellectual and institutional context, before considering how sociologists understand the question of method.

B. THE CHALLENGES OF INTERDISCIPLINARITY

Concerns with methodological issues emerge as part of attempts of various fields of research to present their labours as systematic, reliable and rigorous sources of knowledge. Once these fields are transformed into established disciplines, they use methodology to monitor and sustain the quality of the research conducted within their realms, but also to ‘discipline’ the newcomers. In other words, methodology has two closely interrelated functions: It, firstly, guarantees a degree of quality control and, secondly, it ensures the internalisation of standards and values underlying any particular discipline by the newcomers to that discipline.

That is why originality and innovation do not go comfortably hand in hand with methodological restrictions and standards. Those who would like to develop new ideas and approaches soon find themselves confronted with, and forced to defy, the methodological restrictions of established disciplines. Having said that, it is important to add that original pieces of research often defy methodological rules consciously and intentionally. The ‘perpetrators’ who produce original work are knowledgeable or experts in what they are defying and the methodological rules that they are violating. Thus, the ignorance of methodological issues can seldom become a source of originality or innovation.¹⁰ Expressed differently, our ignorance of sociological methods cannot be justified as a ‘method’ to escape the disciplinary restrictions of sociology, or presented as part of the attempt to create original socio-legal work.

Interestingly enough, there is an important connection between the rise of interdisciplinary research and the problem of methodology. Interdisciplinary research indicates an ambition to understand and integrate aspects of two or several disciplinary perspectives into one single approach. Sociology and psychology are, for example, brought together to create the new field of social psychology, biology and chemistry to create bio-chemistry or, as in our case, law and social sciences to create socio-legal studies.¹¹ The objective of this exercise is ultimately to combine knowledge, skills and forms of research experience from two (or several) disciplines in an attempt to transcend some of the theoretical and methodological limitations of the disciplines in question and create a basis for developing a new form of analysis. At the same time interdisciplinarity provides a ‘space of encounter’ at the cross-section of disciplines which offers temporary relief from methodological and theoretical restrictions of established disciplines (perceived as an hindrance to innovation).¹²

This disciplinary reprieve comes with a price tag. In order to create an interdisciplinary space, the researchers have to establish communicative links between disciplines. These links assist them to visualize the world from the standpoint of the other relevant disciplines and appreciate the value of the knowledge and skills developed by them. This often requires them to develop double competence and to master two or several academic discourses, which is easier said than done. In addition, mono-disciplinary researchers might, and often do, regard the interdisciplinary form of knowledge/power as a threat to their academic prestige and other vested interests and hence dismiss it as a form of dilettantism. Their tendency to dismiss the fruits of interdisciplinary research increases if the interdisciplinary undertaking contains, or when it brings about, an explicit critique of the shortcomings of the traditional disciplines in addressing certain fundamental questions. Thus, interdisciplinarity can be perceived (often correctly) as ‘a threat to the existing identity of a discrete discipline’¹³ and an attempt to undermine the authority of traditional disciplines. Also, as pointed out by Moran, ‘interdisciplinarity is always transformative in some way, producing new forms of knowledge in its engagements with direct disciplines’.¹⁴ The transformative character of interdisciplinary research is not welcomed in academic settings with a vested interest in preserving the traditional methods of research and education.¹⁵

It is, however, important to note that there is no single definition of interdisciplinarity for the simple reason that it means different things to different researchers. Not only do different researchers turn to interdisciplinary research for very different reasons, but they also borrow in different degrees from different disciplines. If we agree that interdisciplinarity involves integrating and organising traditional forms of knowledge, skill and experience in a new and original fashion, then we should resist attempts to formulate an all-encompassing definition of interdisciplinarity. A single definition would indicate the emergence of a new discipline, with its own theoretical and methodological restrictions, from which interdisciplinary researchers would wish to escape.

Let us now take a brief look at law and sociology, from an interdisciplinary point of view, to see how the issues debated here are relevant to the development of sociology of law and socio-legal studies.

C. LAW AND SOCIOLOGY

The fact that law is a formal instrument of regulation (ie, a tool in the hands of policymakers), a body of rules and decisions (ie, a system of norms), an occupational setting (ie, a profession), an academic discipline (as reflected by scientia iuris, legal studies and jurisprudence), a form of learning, teaching and training (ie, an education) at the same time, and can also be seen and experienced as a source of justice by some people, and a form of oppression by others, makes it impossible to generalise about its nature. We always have to consider which aspect or manifestation of the law we are discussing, and from whose perspective we are presenting that aspect. This idea is far from alien to jurisprudence, within which we find many orientations and schools of thought that implicitly or explicitly recognise the sociological diversity of law. But interestingly enough, the image of law as a highly rationalised rule-based activity, ie, as a system of rules, norms and principles designed to guide legal analysis and justify decisions, occupies a central position in both common law and civil law discourses. This does not mean that legal reasoning, as articulated by doctrinal studies of law or legal theory, follows rules, norms and principles blindly, mechanically or at all times, but that it either searches for, examines or employs rules and principles as part of its general approach. Doctrinal studies of law, for example, use interpretive methods to examine cases, statutes and other sources of law in an attempt to seek out, discover, construct or reconstruct rules and principles. It then systematises and employs them to conduct descriptive analysis and normative evaluation of the process of decision-making.¹⁶ This reliance on legal rules and principles turns much of law, legal reasoning and legal studies into a formal activity.

Many theories of law, in particular those rooted in legal positivism, are also influenced by this rule-based approach. These theories often hold that ‘legal rules are constitutive of law and that the force of rules … derives in general from their having been enacted by institutions authorised to make rules’.¹⁷ HLA Hart’s idea of ‘primary’ and ‘secondary’ rules and Hans Kelsen’s ‘pure theory of law’, each in its own way, draw on, and contribute to the development of, the rule-based approach to law. Hart, with his roots in the common law tradition, and Kelsen, in the civil law, disagreed on many fundamental issues, but not on the definition of law as a system of rules and norms.¹⁸ Even Dworkin’s approach, which questions Hart’s rule-based model by arguing that lawyers ‘make use of standards that do not function as rules, but operate differently as principles, policies and other sorts of standards’ would still agree that the overwhelming majority legal analysis and decisions are made in reference to legal rules.¹⁹ Taking Dworkin’s theory at face value, his ‘standards’ are evoked in hard cases when the problems with legal rights and obligations become acute.

To make matters more complicated, most lawyers recognise that law as a form of practice encompasses many forms of skill, some of which cannot be reduced to the application of rules. Yet, we find that they still confer an important role to lawyers’ ability to handle rules. For example, in How to Do Things With Rules, William Twining and David Miers point out that legal practice contains diverse activities ranging from advising on the procedure of a particular course of action to advocacy, drafting statutes, communicating information about legal rules and so on. They also emphasise that ‘rule-handling is only one aspect of the crafts of law’ and that ‘interpretation is only one aspect of rule-handling’. Yet, they go on to argue that interpretation plays a basic role in the exercise of law as a practical art: ‘first, because most rule-handling activities involve or presuppose it and se...

Table of contents

• Cover
• Series
• Title Page
• Copyright
• Contents
• List of Contributors
• Introduction Reza Banakar and Max Travers
• Acknowledgements
• 1. Law, Sociology and Method Reza Banakar and Max Travers
• Introduction to Section One Reza Banakar and Max Travers
• Introduction to Section Two Reza Banakar and Max Travers
• Introduction to Section Three Reza Banakar and Max Travers
• Introduction to Section Four Reza Banakar and Max Travers
• Introduction to Section Five Reza Banakar and Max Travers
• Introduction to Section Six Reza Banakar and Max Travers
• Bibliography
• Index