Studying outside the box of legal logic: Law & Society research
The interaction between law & society is something that is not necessarily studied by legal scholars. Socio-legal research explicitly addresses this interaction by adopting an external approach.
Big, abstract and intangible processes such as globalisation and technologisation have made the world an increasingly more complex place. As a result the nature of the social problems that need to be addressed by governments also seems to have become less manageable through new rules and regulations. Being a social construct, the structural and cultural changes and challenges the world is facing not only have an impact on the law itself, they also impact the study of the law. In this blog I would like to focus on the latter. Although my main field of legal expertise lies within the realm of criminal law, I feel it is safe to say that on the whole the notion of society has become more important in the study of the law in creating a deeper understanding of it. Listening in on discussions between legal PhDs, talking to colleagues throughout and outside of the country, but also looking at the increased emphasis that is placed on knowledge valorization in research grant procedures, questions on the interaction between law & society and the effects of law on society and vice versa seems to be gaining importance in legal scholarship. To quote Ehrlich (1975) “The center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself”. In finding answers to these often non-normative questions, socio-legal research can offer valuable – yet often overlooked – theoretical insights and methodological tools.
Outside the box of legal logic
Early socio-legal research, a term first established in and used in the US since the early part of the twentieth century, emerged in reaction to doctrinal analysis of law (Galanter 1974, Macaulay 1963). According to Calavita (2010) In this more doctrinal approach, law is seen as a more or less coherent set of principles and rules that relate to each other according to a particular logic or dynamic. The object of study in jurisprudence is this internal logic and rules and principles that circulate within it. According to this approach, law comprises a self-contained system that, with some notable exceptions, works like a syllogism, with abstract principles and legal precedents combined with the concrete facts of the issue at hand leading deductively to legal outcomes. It is – put differently – mostly devoted to examining what takes place “inside the box of legal logic”. Law and society scholars see this more formal study of the law as inadequate to explain law as it is experienced and lived in and through society. In order to examine this, law and society research adopts an external perspective on the law. It examines the influence on the law of forces outside the box of legal logic. Some of the central claims underlying this external perspective of the law are that (1) the meaning of law is not intrinsic to statutes or cases, but rather is dependent on extralegal factors such as political and social context; (2) that the form, interpretation, enforcement and impact of law tend to reinforce the extant social structure; and (3) that the sources of law are themselves socially derived (Seron & Silbey 2004). The inside perspective on the law focuses on legal rules and procedures, sees these rules and procedures from within the legal system and it usually accepts them more or less at face value. As the “socio” in socio-legal already implies, other than seeing law as a closed system of logic, law is seen – and thus also studied - as tightly interconnected with the context within which law exists, be that a sociological, historical, economic, geographical or other context.
The social-legal perspective and empirical research
Insofar as it draws on legal texts, legal research is empirical. Nonetheless, the empirical label is usually reserved for research that relies on methods and methodologies drawn from the social sciences - either as applied to legal materials themselves, or as applied to actors in their interaction with a legal system, legal order or “law” as broadly understood. A researcher, using the tools of social science, can gain valuable insights into a society, a community, or group dynamics that “insiders” overlook or take for granted. The tools of social science can therefore be turned back on parts of our own society – the legal system for example – to acquire new insights and analytical clarity. Empirical legal research is therefore closely connected to socio-legal research. Nevertheless, empirical legal research will not necessarily be encompassed within the context of socio-legal scholarship. Indeed, Cownie (2004, p. 57) suggests that a number of academic lawyers who describe themselves as black letter do so because they associate socio-legal approaches with always also carrying out empirical research. Although empirical research can definitely contribute greatly to furthering an external perspective on the law, a socio-legal approach to law does not have to be exclusively empirical. External reflection can also be achieved by means of a theoretically sound analysis. If empirical research methods are used it is vital to also situate them in the broader theoretical frames of socio-legal studies in order to understand what can be gained from empirical study. Over the years it has been noticed that, although interested in a socio-legal approach, the thought of having to carry out empirical research can make legal scholars rather uncomfortable. It is important to stress that empirical legal studies entail more than quantitative, statistical, research methods. While the empirical legal studies movement in the US has had more of a focus on quantitative research, Cane and Kritzer (2010, p. 1) refer to a ‘healthy pluralism of empirical approaches to the study of law and legal phenomena. With that in mind, the more qualitative research methods, methods that might appear less “exotic” to legal scholars, such as interviewing, case study research, discourse analysis, etc., need not be forgotten. Although in general cobblers should stick to their last, in order to prudently use these methods it is not necessary to be a full blown social scientist: There are many handbooks, training modules and – let’s not forget - colleagues out there that can offer a helping hand. Where there’s the will to be more engaged in socio-legal research, there’s a way!
An open invitation
Although this blog has clearly been a promotion for socio-legal research, it does not imply that socio-legal research should replace more traditional, more normative, legal research. On the contrary, more traditional legal research not only serves a purpose on its own since it addresses different types of questions compared to socio-legal research, it also serves as an important source of input for social legal research. Yet, I am convinced that the conceptual and epistemological lens through which the law is studied can be enriched by conversations that cross disciplinary and methodological boundaries. In order to spark these cross-boundary discussions, this blog is an open invitation to attend the upcoming Leiden Socio-Legal Series: a series of 9 lectures, starting in October 2016, during which various renowned international socio-legal scholars will reflect upon the way the socio-legal perspective has helped them in their research.