“I try to use the insights from interdisciplinary research to inoculate my students against being starry-eyed about what law is and what it can do” Interview with Helen E. Hartnell

Helen Hartnell

This blog post is part of the interview series “Law, politics & society in university teaching“. The interview was conducted by Philipp Günther.

What courses do you offer in the field of interdisciplinary legal research?

I’m a retired law professor so I no longer teach full time, but I still teach a variety of courses at US and European universities. I teach three types of course that involve interdisciplinary legal research.

First, for the past ten years, I’ve taught “Law, Society and Politics in Comparative Perspective” at the Free University of Berlin in its FUBiS program, which offers intensive summer and winter courses for students who come from around the world. It is a challenge to teach because some are law students, and some are not. In this course, I use law as a tool – a ‘bottle opener’ – and a unifying focus to get a diverse group of international students to think about their own views about society and politics, and to explore their ideas in discussions about contemporary issues with other students. My ultimate goal is to fuse them as a group in a short period of time through intensive reflection and debate. (I was elated the day a student said, “Damn you, Professor, we spent the entire lunch break discussing the readings.”) We look at the role and impact of law, using a variety of classic historical and theoretical readings on law from anthropology, sociology, psychology, political science and economics. For example, we read some early Durkheim and use that to talk about shaming as a form of punishment and why some countries punish mildly while others punish harshly. We use an early Marx essay to talk about notions of property and the commons, squatting, and graffiti, and use Weber’s writings on the relationship between law and the economy to explore how law changes when countries transition from state-socialism to a market economy. Finally, we compare the role of law in Nazi Germany and the GDR, as a way to grasp the relationship between democracy or authoritarianism and the legal order, and to explore the roots of the current ‘rule of law crisis’ in Europe.

Second, I recently taught a more traditional “Sociology of Law” course at the University of Cyprus. There, I had mostly law students in the class, and challenged them by exposing them to socio-legal literature and theories that offer an alternative to their internal closed perception of law. That course aimed to get young undergraduate law students to see law in a political-cultural context and to think about law not just in the positivistic way as the command of the sovereign, but rather as something ambiguous that emerges from the political process involving competing forces in society. I think of that course as a sort of shock therapy that aims to make law students better lawyers and maybe also better citizens.

Third, I also still teach traditional law courses such as “European Union Law” and “International Economic Law” in the US and in Europe. In those courses, which involve complex legal doctrine, I also introduce perspectives from interdisciplinary studies, but in a different way. I don’t ask students in an EU Law class to read classic socio-legal literature, but I do contextualize the law by integrating those perspectives into legal problems, which makes their learning more dynamic. 

What does interdisciplinary legal research mean to you and what role does it play in your university teaching?

I had a circular career path that began in the US when I earned a bachelor’s degree in psychology. After that, I wandered into law because I was interested in the social role and impact of law. I thought psychology was too much about the individual and not enough about the social. So law school was my second evolutionary step. Many years later, I returned to empirical social sciences – specifically sociology and political science – because I couldn’t answer the questions that interested me most about law by using just legal tools.

I see my interdisciplinary research as a way to find better answers, but also as a way to de-program myself from how I was socialized in law school. The tools of empirical research allow me to unpack and overturn a lot of received wisdom. One example is the international harmonization of law. As a student I thought that’s a good development and we should strive for it. But when I became a lawyer and got involved in the process of how international norms come about, I changed my mind on the subject. In that sense, I use socio-legal studies and empirical research methods to examine and upend my own biases. As a law teacher, I try to use insights from interdisciplinary research to inoculate my students against being too starry-eyed about what law is and what it can do.

Does interdisciplinary legal research in Germany, compared to the US, encounter particular challenges when it comes to collaborating with other sciences? Are the German legal culture and methods particularly resistant to “external” influences?

There are few universals, but one that I’m aware of is that traditional legal scholars do not get much love from scholars in other disciplinary fields. I think this holds true in both the US and in Germany. Legal scholars (like me) who seek interdisciplinary engagement often find that it makes us hybrids, neither fish nor fowl. We develop the ability to communicate across disciplinary boundaries by learning to speak another discipline’s language, but this can render us suspect among the community of legal scholars. Many can navigate this complex landscape easily, switching from one context to another, but some come to feel most at home with fellow transgressors.

There is a certain rigidity in German legal academia. I worked for a number of years at the University of Cologne with a conservative and respected comparative law scholar. He told me: “Don’t go down that road, it’s a dangerous path.” I replied it’s already too late, but his argument was not a bad one. He insisted that I could never be a real political scientist since I am already so deeply shaped by my legal education. If I borrow ideas or insights from the other field, there’s a limit to what I can actually achieve. Therefore, he argued, it’s better to stick to one path and do it well than to muddy the waters by bringing in foreign concepts from other fields. I understand his argument, but I don’t agree with it.

German legal academia is more resistant to external influence than American legal academia. I cannot speak to the long history of German legal academia, but the experience of the Third Reich helps me to understand the effort to maintain a formal separation between law and politics. In the US, part of our openness towards “external” influences comes from the common law system itself. In general, we don’t believe that there’s a single correct answer to a legal question. There’s the plaintiff’s argument, there’s the defendant’s argument, and then there’s what the judge makes out of that. For us, law is inherently historical, contested and changeable. The notion of “sociological jurisprudence” was already becoming accepted in the US more than a hundred years ago. Common law is inherently permeable to policy arguments, so there is less resistance to the idea that the Supreme Court should, for example, consider sociological data about how separate schools affect black and white children when it’s called upon to decide the fate of the “separate but equal” doctrine. For us, that is a normal part of judicial activity; judges do not only decide cases, they also say what the law is at that moment in time. Still, it makes me uneasy today, in the context of the ongoing instability in US politics, as well as in some other countries in Europe and elsewhere, to see how vulnerable law is to the winds of populist and authoritarian politics.

What methods or practical approaches do you employ when you are teaching interdisciplinary legal courses?

My interdisciplinary training comes in large part from the University of California, Berkeley. Many people think Berkeley is a wild place like it was in the sixties, but the faculty members I worked with during my interdisciplinary legal studies were oriented towards theory-driven positivistic empirical research methods. One of the techniques that I use in my teaching is to begin by examining ideas about law and its operation, then introduce empirical studies that show that what we think is true is – on the facts of those studies – false. For example, the mobilization of law literature has developed an insightful “disputing pyramid” model. The received wisdom in American legal education is that if you create rights, people will pursue those rights to improve their lives. I think all law students grasp that concept quite easily. However, empirical studies show that it doesn’t work quite that way. Many factors influence whether people actively pursue their rights, and how winning or losing in court affects their lives and society more broadly.

Another technique that I use in teaching is to draw from a wide variety of socio-legal paradigms. I believe they are very useful when teaching law students. For example, the “law as a con game” paradigm explores how lawyers work in an institutional context, such as the criminal justice system, and shows that lawyers often behave in accordance with the norms and incentives of that institutional context, even when they are inconsistent with learned role conceptions. I believe that law students can readily grasp the point of such insightful studies and should be aware of them. US legal education focuses on training lawyers, not on training judges, so the more we can give students a realistic view about the realities of practicing law, the better prepared they will be to enter their professional lives.

The other technique that I use is a pedagogical method. When teaching traditional law school courses, I try to integrate different perspectives by creating contextualized problems. These problems are often complicated because they begin with questions of doctrine, which is what students believe they are in law school to learn, then weave in elements related to institutional context and procedure, along with cultural and psychological factors. In this sense, I push students to solve problems by developing not only a doctrinal argument, but also a strategy that incorporates all these different strands.

Where do you see the future of the law and society scholarship in Germany – especially from a US perspective?

Before speaking about scholarship, let me say a bit more about teaching, because the two are connected. I would like to see interdisciplinary perspectives incorporated more systematically into all legal education. I’ve made the same argument for decades about international and comparative legal perspectives. If you’re training lawyers who only think about national law and only think about law without context, you’re going to end up with small-minded lawyers. The risk of training “Fach-Idioten” is not only a problem in legal education, but it is especially problematic, since we are training members of a profession who will play important social and political (as well as legal) roles. In this context, socio-legal perspectives offer a particularly valuable “reality-check” to curb the idealized loftiness of legal education. I am happy to see that many – not all, but many – German law students are interested in interdisciplinary work because they want to go beyond just learning the rules of law, they also want to understand more deeply by thinking more broadly about law in context.

The question about scholarship is trickier. For me the question is, why have interdisciplinary approaches to law become trendy (again) in Germany, even prestigious? I do not know the answer, but my sense is that it is not simply because student demand drives what is taught or researched. That said, grassroots efforts have had an important impact on contemporary developments in Germany, even though these recent efforts are of a different nature than those in the 1960s.

Researchers (including faculty) have their own inherent interests, but are also channeled by opportunities, such as funding for research or the creation of institutes and innovative teaching programs. Without a better understanding of what is driving the trend at the top of the German academic hierarchy, predicting the future is risky. What is clear is that there has been a huge growth in opportunities for interdisciplinary research on law in Germany in the past fifteen years. There are well-established professional associations in Germany (and throughout Europe), including grassroots organizations such as BAR (the Berliner Arbeitskreis Rechtswirklichkeit), along with a solid network that collaborates to organize regular meetings for socio-legal scholars working in the German language. There are also many signs of innovation and institution-building at German universities, such as the establishment of interdisciplinary research institutes at universities, for example the Integrative Research Institute Law & Society (LSI) at Humboldt University, of graduate colleges, and of advanced degree programs, for example the new Law & Society doctoral program offered by the LSI in cooperation with the Berlin Graduate School of Social Sciences (BGSS). These developments offer hope that there will be ongoing funding and expanding opportunities for scholars (young and old) to conduct interdisciplinary research on law in Germany. Whether and how these trends will translate into job opportunities for young researchers is a question for another day.

Helen Hartnell is Emerita Professor of Law at Golden Gate University (San Francisco). She lives in Berlin and is involved with ongoing interdisciplinary projects with the Berliner Arbeitskreis Rechtswirklichkeit (BAR), the Project Group of the Integrative Research Institute Law & Society (LSI) at Humboldt University, and the RCSL Working Group on Legal Professions. She continues to teach regularly at Golden Gate University School of Law and at the Free University of Berlin (FUBiS). Her current research focuses on legal professionals as political actors in the European Union.