The missing chapter – Some thoughts about the Socio-Legal Lab

by Victoria Guijarro

“Methods” and “interdisciplinary research” are somewhat mysterious in legal science. Unlike PhD theses in other disciplines, the introductory chapters to doctoral theses in law, even well-written ones, almost always fail to include a sub-chapter about methods, while only a few present results of interdisciplinary research. During the Socio-Legal Lab in Göttingen, Lisa Hahn and Siddharth de Souza made “methods” and “interdisciplinary research” tangible for the participants.

My experience with the Socio-Legal Lab, together with my experience studying law at a German law faculty, reinforces the need for more reflection about methods and extralegal knowledge in legal studies. This blog post offers an explanation as to why a methods chapter is often missing and argues that law must overcome its reluctance to engage with methodological questions and interdisciplinary research in the digital age.

 

What Savigny misses

During the first semester in law school, we were taught that there are – according to Savigny (others say Larenz)[1] – four interpretation “methods” for identifying the correct meaning of a norm: wording, structure, object and purpose, and the historical background of the law. After my first semester, I never heard another word about methods. I became frustrated by the lack of methodological perspective, because there were so many legal assessments I was not able to arrive at using those alleged methods. Especially when reading judgments of the Federal Constitutional Court in Germany (Bundesverfassungsgericht), I had the feeling that I was missing something. In the 1960s, for example, the Federal Constitutional Court judged that gender equality meant to protect men and women in their “natural otherness”. In the 1970s the Court changed its view and concluded that gender equality was about formal equality, that is, having the same rights. In the 1990s the Court interpreted gender equality as a prohibition to perpetuate gender stereotypes.[2]

This legal evolution on the meaning of gender equality reveals that law is much more than wording and structure. It is an applied science embedded in society. It is a “living instrument”[3] which cannot be captured if one is only equipped with Savigny’s (or Larenz’) hermeneutics. But how should one then approach it? This is when an interdisciplinary approach comes into play.

 

Law’s need for extralegal knowledge

In the Socio-Legal Lab, some participants were very cautious about this multifaceted concept. The main problem we encountered was how to overcome translation problems from one discipline to another, without fully comprehending the other discipline.

In the Lab we learnt that an interdisciplinary approach, in a wider sense, does not always mean to fully grasp the new discipline, but might sometimes just serve as an inspiration or offer a tool that helps us better understand the facts to which we want to apply the law.[4] When seen from this perspective, the interdisciplinary approach resembles what courts regularly do when they invite experts to assess a situation. Thus, in practice and in research, law needs extralegal knowledge.

As long ago as 1912, Eugen Ehrlich gave a speech at the 31. Annual Conference of German Jurists (31. Deutscher Juristentag) about how “to enhance the insights of lawyers in psychological, economic and sociological issues.”[5] Over 100 years after Ehrlich’s speech, and despite the daily need for extralegal knowledge when applying the law, there are only a few law schools in Germany that offer “Law &” courses, and even fewer universities that offer empirical legal research classes.

 

Making methods feasible

In the Socio-Legal Lab we got a sense of what Ehrlich might have had in mind. We engaged with other means than legal doctrine to understand the law, that is, quantitative and qualitative methods. We discussed approaches to law other than dogmatic ones, such as sociological, anthropological or historical ones. We talked about the macro and the micro perspectives in our projects and much more. This discourse unfolded what “methods” mean. It called for reflection on how we collect data and from where we get our knowledge. Thus, to think about methods lets us – indeed, requires us to – reflect on our own positionality.

 

Explaining the missing chapter

But in Germany, legal science often tries to hold objectivity and neutrality high. Maybe this is the reason why a methods chapter is so often missing in legal PhD theses. If a methods chapter was an obligatory part of a doctoral thesis in law, as it is state of the art in other disciplines, lawyers would have to admit that the monograph is shaped by the positionality of the author and his or her underlying ideological and political assumptions.

 

Methods and interdisciplinary research in the digital age

Researchers are currently searching for methods to formalize the law in order to allow computer systems to generate legal answers. Therefore, jurists are called upon to engage with computer science and make explicit how knowledge about the law is generated, so that computer scientists can translate it into ones and zeros. Thus, e-legal tools not only have the potential to alleviate access to justice, but also force legal science to engage with other disciplines and rethink its methods.

The Socio-Legal Lab not only demystified methods and interdisciplinary approaches, but also encouraged us to cross legal borders.

 

[1]See Hamann ‘Empirische Erkenntnisse in juristischen Ausbildungsarbeiten’, 39 JURA 7 (2017), 759, 764 and text in the footnotes.

[2]BVerfGE 10, 59, 78; E 48, 346, 366; E 85, 191, 207; E 92, 91, 112; for an overview see Zinsmeister, Mehrdimensionale Diskriminierung (2007), 66 ff.

[3]Less as an interpretation tool (for this Baade, Der Europäische Gerichtshof für Menschenrechte als Diskurswächter (2017)) than as Ehrlich‘s „living law“.

[4]Van Klink/Taekema ‘On the border’ in: van Klink/Taekema (eds.) Law and Method (2011), 7 ff.

[5]Rehbinder, Gesammelte Schriften zur Rechtstatsachenforschung und zur Freiheitslehre (1967), 61; Ziegert ‘A Note on Eugen Ehrlich and the Production of Legal Knowledge‘ 20 SydLawRw 1 (1998), 108.


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