Self-reflecting, constructing and positioning: Intersecting debates in Socio-Legal Studies
By Lisa Hahn & Siddharth de Souza
The Socio-Legal Lab convened a second workshop on 18th January 2019 which attempted to build and draw upon key debates that had animated the first workshop: the relevance of a turn to socio-legal research among graduate students, conversations on the intersections of law and society and finally ways to reconcile different intellectual traditions within the gamut of socio-legal studies.
The second workshop was held at the Law and Society Institute (Humboldt University Berlin) and supported by Berliner Arbeitskreis Rechtswirklichkeit. It had two components. The first involved a panel discussion with Prof. Dr. Susanne Baer (Humboldt University Berlin), Prof. Dr. Philipp Dann (Humboldt University Berlin), Prof. Dr. Julia Eckert (University of Bern) and Prof. Dr. Marie-Claire Foblets (Department ‘Law & Anthropology’, Max Planck Institute for Social Anthropology, Halle). It focused on how each of the scholars had engaged with methodological challenges of doing socio-legal research in their work, how they had reflected upon their own positions as academics in the field, and how they addressed concerns of their academic and other audiences. The discussions covered a myriad of issues from personal engagements by the panelists with their research projects and their advice for younger scholars, to more reflective observations on the theory and methods of adopting socio-legal and interdisciplinary approaches to research. The second component of the workshop revolved around presentations made by participants who introduced particular methods that they found useful for their work and the benefits and challenges of adopting them.
In this blog post, we reflect upon some of the key discussions that emerged from the workshop including how to bridge dichotomies in socio-legal research, the need to demystify methods and finally the importance of allies and communities in a research setting.
Bridging common dichotomies in socio-legal research
The workshop was framed around understanding common dichotomies in socio-legal research which are used to juxtapose contrasting or sometimes competing ideas. These juxtapositions are widely used in both law and interdisciplinary legal research such as law and society, social and legal norms, legal and extra-juridical knowledge, “law in the books” and “law in action”. The discussions engaged with these dualities and examined how they could be deconstructed and methodologically bridged.
From descriptive-analytical to normative-doctrinal
One dichotomy that poses a key challenge to interdisciplinary research relates to the different epistemological backgrounds of legal and social sciences. Legal science is commonly understood as a normative science that deals with what ought to be (normativity) and the system of rules which guide the application of law (doctrinal reasoning). In contrast, social sciences aim to understand or explain social phenomenon, systems or codes such as law on a descriptive-analytical level. Here, concepts of normativity are often anchored in empirical observations. Methodologically, this raises fundamental questions: How can social scientists approach legal questions and vice versa? And how to engage with forms of normativity that are distinct from one’s own normative universe?
During the debate, the panelists addressed these questions by illustrating different forms of interdisciplinarity with examples from their own research. From her experience both as a socio-legal scholar and as a judge at the Federal Constitutional Court in Germany, Susanne Baer concluded that interdisciplinary research must do more than just start with a legal question and answer it sociologically. Rather, such studies need to take law seriously so that social science knowledge is translatable for doctrinal reasoning in practice. From an anthropological point of view, Julia Eckert commented that socio-legal studies may not answer the questions that lawyers have about law in action, but other, equally important ones. While for lawyers, law as an applied science is above all about the skill, it also has an existence beyond that. It also affects and is used by non-lawyers in society and is translated in their daily interactions. Accordingly, legal reasoning is to be distinguished from the interest of other disciplines like anthropology in exploring law as a social practice. Making law the gateway of research involves the risk of producing blind spots.
The panelists, however, agreed that interdisciplinarity should not be a question of a hierarchy of approaches or a dichotomy between law versus society, but of addressing the intersection of both; it should be about finding common ground no matter which angle you start from. How this interdisciplinary dialogue could be accomplished in practice was explained by Marie-Claire Foblets who shared her experience with a judicial training program for judges on cultural diversity. Her remarks raised the institutional question of whether it is enough to selectively include the expertise of disciplinary “outsiders” or whether legal institutions rather need to be completely restructured.
In the second half of the workshop, Dominik Hofmann (University of Bielefeld) illuminated yet another aspect of this dichotomy, that of theory and method. He introduced the documentary method as a qualitative approach which is used to unfold the implicit contextual knowledge that guides social action and to understand common spaces of experience. At the center of this method is the idea of comparison, which is often cited as an advantage of theories over methods. To apply the documentary method, data gathered in group discussions, interviews or even films and pictures are transcribed, interpreted in several cycles, ordered in typologies and thus made comparable. For socio-legal research, as the discussion showed, taking communication as a document to investigate shared experiences is particularly challenging because in legal settings such as courtrooms, lay and professional knowledge codes come together.
From micro- to macrostructures
Not only interdisciplinary, but also intradisciplinary dichotomies pose challenges to researchers. In social sciences, such a dichotomy unfolds between micro- and macro-structures as different levels of analysis. Micro-analysis, on the one hand, is the study of small-scale patterns such as interactions between individuals or actors’ point of view. In contrast, macro-approaches often seem to start from a theoretical conceived model of social structure and explore bigger patterns of society. To examine this dimension, quantitative methods such as surveys or experiments are commonly used, whereas qualitative methods like interviews or observations are applied on the micro-level. But are these approaches really fundamentally different forms of knowledge production? Or can one do both – come to an understanding of macro-structures through micro-analysis?
These questions provoked a heated discussion among the panelists which, surprisingly, did not go along the disciplinary lines. On the one hand, it was argued that anthropology primarily wants to understand social practices at a micro-level with qualitative methods. In this understanding anthropology does not aim for representative results. For example, if one does courtroom ethnography, all insights gained refer to this one court only. If anthropologists then made far-reaching statements, they would risk scientific credibility. On the other hand, it was brought forward that anthropology can also be concerned with macro-structures. Julia Eckert even argued that without micro-studies it is impossible to understand the mechanisms and constitution of macro-contexts at all. It was suggested that a micro-analysis can transition onto the macro-level by incorporating the context of law. In the example of courtroom ethnography, including an analysis on the institutional landscape or finance structures of courts could add layers that would provide for more systemic patterns and observations.
Another suggestion how the dichotomy between the micro-level and the macro-level can be overcome in a legal context was made by one participant in a presentation on narrative analysis as a method to explore constitutional identity. In her presentation Johanna Hase (WZB Berlin) argued that using narratives allowed for unpacking a variety of detail around a particular object of study. For example, narratives allowed for understanding the type of event that was significant, the characters that played a role, the space and time within which it took place and the interconnections that emerged by using these different lenses. She demonstrated how these micro-level details entail a perspective and a voice relevant to the construction of constitutional identity. Additionally, by aggregating these different narratives, she was also able to connect the different strands of information to build observations at a macro level. In this sense, using narratives provided different windows through which to make observations and come to conclusions.
From critical-engaged to applied research
When it comes to the motivation of researchers and overall objectives of research, critical-engaged and applied-analytical approaches are distinguished. While applied science is considered to aim for impacts on policy and the solution of concrete problems, critical approaches above all uncover and undermine power structures behind such problems.
The scholars in the panel discussion reflected upon their roles in discovering research whether through curiosity or through having a high impact or through being empathetic as a scholar. It was argued that the question of critical-engaged or applied research was one of the level of commitment a researcher chooses and both choices were equally valid. For them these choices also determined how they engaged with different communities, or through open-ended conversations by taking the research out to the public. In dealing with scientific knowledge, Philipp Dann introduced the distinction of being a consumer or a producer of knowledge and how it was important to be conscious of one’s own position.
One further aspect that influences the researcher’s role is the relationship towards the research subjects. An input by Siddharth de Souza and Lisa Hahn (Humboldt University Berlin) on semi-structured interviews addressed specific challenges of interviewing experts. It highlighted that it is important for the research process to reflect upon reasons for and expectations towards expert interviews. Before applying this method, it should be clarified what exactly makes a person an expert, what form of privileged knowledge the person has and how the researcher identifies vis-à-vis the expert – as a lay person, critic or co-expert. However, in contrast to these abstract guidelines, a clear positioning during field work often is impossible. This raises the critical question as to the extent to which such guidelines for researching “expert” knowledge are not primarily a construction of science that strives for distance and objectivity. Against this background, Larissa Vetters (Department ‘Law & Anthropology’, Max Planck Institute for Social Anthropology, Halle) demonstrated in another presentation on verbal data how the relationship between the researcher and the research subject can be rethought by means of collaborative ethnography. The approach evolved from criticisms of ethnographic knowledge production, which had long been based on the assumption that exploring “the other” in the field and interpreting ethnographic data at home were two separate spheres. Collaborative ethnography dissolves this distinction and understands research subjects not as informants but as research partners. Larissa Vetters explained how this method can be applied in legal settings through case studies. She showed that this approach is particularly useful when researchers and research partners have undergone similar academic training such as the judges and socio-legal researchers in the courtroom ethnography she had conducted, but also raised questions regarding the limits of collaborative ethnography when it comes to contested explanatory frameworks among collaborators and decisions about research output in the form of academic publications.
The critical potential of engaging with time and space was highlighted by two further presentations. Through the input on archives by Sonja Dolinsek (University of Erfurt) participants were introduced to temporality as another element that requires socio-legal investigation. In this presentation, observations were made about how documents provide an insight into the bureaucratic past and also give promises for the future. The discussion around the presentation included debating about archives as a site of knowledge production, one that is fiercely disputed, and also an investigation into how to think about how archives are curated as well as the symbolism and silences that they showcase. In the last presentation of the workshop, Smarika Kumar (Humboldt University Berlin) added constructions of space as one way to approach blind spots in textual knowledge production. She introduced how mapping as a critical project can question dominant forms of knowledge production and representation.
Demystifying methods, redefining quality in research
In moving between the different dichotomies, the panel debate inevitably came back to thinking about methods. Among the telling insights from the discussion was the challenge of identifying a fulfilling and meaningful research question and a method to undertake such a project. Susanne Baer suggested that in order to this, it was important to know what the researcher wanted to do to change the world; was it a matter of changing rules, was it about changing realities or was it more about changing mindsets? She argued that addressing this question was important to being critical as a researcher and also essential to build an ontological approach to law. Marie-Claire Foblets agreeing with this view, found that as an interdisciplinary researcher, choices of methods were often autobiographical in nature. She felt that these choices were grounded in life experiences, in politics and in the contexts of the work. In this regard it was important to recognize how committed you were to your research but equally that you were pragmatic about how much was accomplishable.
Philipp Dann further suggested to reformulate the question about socio-legal methods. For him, it was not as much about deciding which method to use, but rather where to begin one’s research. He pointed out that context often brought with it much complexity which required a more pluralistic approach to methods. How this is done in social sciences was elaborated by Julia Eckert who proposed mixing qualitative and quantitative approaches in order to overcome the shortcomings of single methods. Also, with regard to general debates in socio-legal research Philipp Dann suggested a change of perspective: The key question ‘what is law’ could be examined at two levels, at a narrow level the question to ask was ‘what has shaped the law?’ while at a broader level it requires taking a step back and looking at ‘what shapes institutions and people and what is the role of law’.
One of the recurring discussions on methods was on the role of law in undertaking an interdisciplinary project. The panelists, as described above, emphasized that it is essential for every interdisciplinary project to understand the internal dynamics of law and the intricacies of legal doctrine. At the same time, it was problematized that this requirement was particularly challenging due to the normative closure of law and its specific ontological dynamic. Law wants to stay distant and does seal itself off against “outsiders”, Susanne Baer replied to the question from the audience, why legal scholars seem to have a limited interest in social sciences but the other way around there is great curiosity. However, that legal knowledge is something unique by nature, was doubted by Philipp Dann. Susanne Baer summed this aspect up when she pointed out that law’s immunization to external knowledge is above all a question of power of disciplines.
In sum, the panel felt it was important not to get entangled in methods. Julia Eckert argued that methods must be demystified because they are first and foremost tools and provide no results on their own. While important, she said it is essential to recognize the messiness of research as well and the role that the researcher still has to play in interpreting the data. She also pointed out that such methodological choices are linked to notions of truth and objectivity of scientific knowledge. She recommended that socio-legal research should not claim to produce replicable and representative results but rather aim for reliability and show interrelations. Susanne Baer proposed a similar criterion when she noted that quality above all was explaining and making comprehensible one’s own procedure. This applies even more, the more critical a researcher is.
Conclusion: Building communities
What guidelines and recommendations for interdisciplinary legal research remain in light of the above challenges and the realization that they cannot be overcome solely by engaging in socio-legal methods?
One overall insight of the workshop is that new types of knowledge production which question rigid disciplinary boundaries and dichotomies need scientific communities to support them. For the success of such inter- or even transdisciplinary projects, Susanne Baer referred to the emergence of gender studies as a field of research. In jointly approaching the topic gender from multiple disciplinary angles, researchers train how to communicate with other disciplines without trying to convince the respective other.
The panel discussion also suggested ways to build such a community and to find allies and overcome the loneliness of the research process. For Susanne Baer, finding allies emerged from going out and speaking to the world. She felt there was value in not just engaging within disciplines and amongst hierarchies but rather even sideways in order to gain perspectives that are otherwise not obvious or available. Marie-Claire Foblets using examples from her department in Halle emphasized the importance of listening to the researcher and understanding her perspectives before suggesting tools or approaches. In her approach it was important for researchers to find their own way. Julia Eckert also spoke of the need to have many conversations which are different in nature, while some may undoubtedly require particular expertise such as law, others may also require more practical perspectives. Having multiple inputs was also important to recognize that research and scholarship develop and are an ongoing process. Philipp Dann highlighted the importance of having a peer group that could both be interlocutors as well as mentors. He found much support among scholars a few years senior to him who had gone through the same research process a few years before.
The panel thus emphasized that the idea of communities was central to being any type of scholar, because this enabled the opportunity for conversations and for collaborations. While the panelists acknowledged that academia is a competitive space which demands outputs, and often is a result driven business, they suggested that without being naive about the competition there was also great value in finding allies and building a community that could learn, share and grow. They also encouraged researchers to explore cross-disciplinary exchanges and to look beyond the echo chambers of academia. This they suggested would also be one way to make academia more engaging and also less isolating.
Röhl, Gegenbegriffe (Antonyme) und Dichotomien als Werkzeug der Jurisprudenz, 17.03.2018, unter: https://www.rsozblog.de/gegenbegriffe-antonyme-und-dichotomien-als-werkzeug-der-jurisprudenz/.
 Banakar,Merging Law and Sociology: Beyond the Dichotomies of Socio-Legal Research, Berlin/Wisconsin 2003.