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“Critical Empricism” and American Critical Legal Studies: Paradox, Program, or Pandora's Box?

Published online by Cambridge University Press:  06 March 2019

David M. Trubek  and
John Esser

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What should we make of Susan Silbey's call for socio-legal scholarship that is both critical and empirical? Do we think the law and society movement can and should develop a critique of the legal order? Can empirical research contribute to such a critique? Does the idea of a “critical sociology of law” make any sense at all?

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Articles
Information
German Law Journal , Volume 12 , Issue 1: Critical Legal Thought: An American-German Debate—Republication [with a new Introduction] Twenty-Five Years Later — , 01 January 2011 , pp. 115 - 158
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Copyright © 2011 by German Law Journal GbR 

References

1 We use the terms “law and society”, “socio-legal studies”, “sociology of law” interchangeably.Google Scholar

2 We found the following especially useful: Richard Abel, Redirecting Social Studies of Law, 14 Law & Society Review 805 (1980); Friedman, Lawrence M., The Law and Society Movement, 38 Stanford Law Review 763 (1986); Galanter, Marc, The Legal Malaise; Or, Justice Observed, 19 Law & Society Review 537 (1985); Macaulay, Stewart, Law and the Behavioral Sciences: Is There any There There, 6 Law and Policy 149 (1984); Sarat, Austin, Legal Effectiveness and Social Studies of Law: On the Unfortunate Persistence of a Research Tradition, 9 Legal Studies Forum 23-31 (1985) and Id., The Litigation Explosion, Access to Justice and Court Reforms: Examining the Critical Assumptions, 37 Rutgers Law Review 319-336 (1985); and Whitford, William, Lowered Horizons: Implementation Research in a Post-CLS World, 1985 Wisconsin Law Review 755-779 (1986). We have also drawn on Edward G. White's recent analysis of the relationship between the Law and Society movement and CLS, Edward G. White, From Realism to Critical Legal Studies: A Truncated Intellectual History, 40 Southwestern Law Journal 819 (1986).Google Scholar

3 Some argue for a purer, more adequately funded objective social science of law (Friedman, supra, note 2); some declare a limited victory and counsel lowered horizons and continued muddling through (Whitford, supra, note 2); others predict a dawn of a new age when the value of the special brand of knowledge which has come out of the empirical epoch will finally be recognized by the academy and the legal profession (Galanter, supra, note 2); while a few raise the cry for a “critical empiricism” (Austin Sarat and Susan S. Silbey, The Pull of the Policy Audience, Unpublished Manuscript, 97 et seq (1987); Trubek, David M., Where the Action Is: Critical Legal Studies of Empiricism, 36 Stanford Law Review 575 (1984) and Trubek, David M., Review Essay: Max Weber's Tragic Modernism and the Study of Law in Society, 20 law & Society Review 573 (1986).Google Scholar

4 In explaining law and society as a legally-constructed domain of social knowledge we do not mean to deny other determinants of this scholarship. There may well be some truth to the traditional understanding that L&S was created as a discipline situated outside law, and to the view that many of law and society's assumptions were borrowed from the existing social sciences. The narrowness of our focus demonstrates our desire to bring an as-yet unrecognized or underappreciated cause to light.Google Scholar

5 Clune, William, Legal Disintegration and Theory of the State (1986), Paper presented to Bremen Conference, July 1986.Google Scholar

6 Kennedy, David, A Rotation in Contemporary Legal Scholarship, in Critical Legal Thought: An American-German Debate (Joerges, Christian & Trubek, David eds., 1989); Peller, Gary, The Metaphysics of American Law, 73 California Law Review 1159 (1985).Google Scholar

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8 Peller, supra, note 6.Google Scholar

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10 Peller, supra, note 6.Google Scholar

11 For illustrations, see John Henry Schlegel's discussion of the two traditions of social research in Legal Realism: the “progressive reform tradition” and the “social scientific tradition”. The social scientific tradition eventually lost ground to the progressive reform tradition. While Underhill Moore was associated closely with the social scientific tradition, most Legal Realists were originally caught somewhere between the two traditions. When the time and energy required to produce good social science research became evident, it also became evident that the knowledge produced would appear too late to be used for legitimating progressive reform proposals in political struggles. Consequently, most legal realists such as William O. Douglas and Charles E. Clark tended to move away from the social science tradition and toward the progressive reform tradition. See Schlegel, American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore, 29 Buffalo L. Rev. 195, especially 29394. See also Schlegel, American Legal Realism and Empirical Social Science: From the Yale Experience, 28 Buffalo L. Rev. 459, especially 517-19 and 579-85 (1979).Google Scholar

12 One of us has in an earlier paper specified two of these themes - universal scientism (positivism) and determinism - and the role they have played in constituting the original law and society perspective. See Trubek, supra, note 3, especially 579-585.Google Scholar

13 These statements relating facts can be seen to be (1) presumptions about elements of the external world that go unseen; (2) generalizations of characteristics which a class of fact statements share; (3) creations of consciousness that serve as heuristic devices for controlling our comprehension of facts; (4) presumptions about unseen forces in the external world (such as the “laws” of a determinist perspective) which constitute actual connections between facts; or any of a number of other things.Google Scholar

14 Austin Sarat and Susan S. Silbey, Dispute Processing in Legal Thought: From Institutional Critique to the Reconstitution of the Judicial Subject, Disputes Processing Research Program Working Paper 8-9 (1988); Trubek, supra, note 3.Google Scholar

15 Sarat, supra, note 2.Google Scholar

16 For an effort to redefine these categories, see Trubek, supra, note 3.Google Scholar

17 Susan S. Silbey and Austin Sarat, Critical Traditions In Law and Society Research, 21 Law & Society Review 165174, 166 (1987). Patricia Ewick has been a member of the Seminar since 1987.Google Scholar

18 9 Legal Studies Forum No. 1 (1985).Google Scholar

19 Law & Society Newsletter, October 1987, 8.Google Scholar

20 Silbey, supra, note 2, 7, 15, 21.Google Scholar

21 Id., 24.Google Scholar

22 Brigham, John, Judicial Impact Upon Social Problems: A Perspective on Ideology, 9 legal studies forum 47-58, 47 (1985).Google Scholar

23 Brigham, Villmoare, and Harrington are political scientists. Merry and Yngvesson are anthropologists. Silbey is a sociologist. Sarat is a political scientist and lawyer.Google Scholar

24 Silbey and Sarat, supra, note 17, 166.Google Scholar

25 See, e.g., Silbey and Sarat, supra, note 3, 6-12; Sally Engle Merry and Susan Silbey, What Do Plaintiff's Want? Re-examining the Concept of Dispute, 9 Justice System Journal 151-178, 155-157 (1984); Sarat, supra, note 2: 24; Merry, Sally Engle, Disputing Without Culture: A Book Review of Dispute Resolution by Goldberg, Green, and Sander, 100 Harvard Law Review 2057-2073, 2062 (1987).Google Scholar

26 Silbey, Susan, Ideal and Practices in the Study of the Law, 9 legal studies forum 7-22, 8 (1985).Google Scholar

27 Values may be understood as atomized and random or as systematic occurrences. See Parsons’ 1949 (1937): 77-79.Google Scholar

28 The instrumental model of action often presumes that actors use evaluative criteria of rationality: that is, they select those means which most efficiently achieve the desired ends. See Merry and Silbey, supra, note 25, 156158.Google Scholar

29 Sarat, supra, note 2, 24.Google Scholar

30 Silbey and Sarat, supra, note 17, 166.Google Scholar

31 Sarat, supra, note 2, 23, notes omitted.Google Scholar

32 Silbey, Susan, Law and the Ordering of Our Life Together: A Sociological Interpretation of the Relationship Between Law and Society, in Law and the Ordering of Our Life Together (Neuhaus, Richard John ed., 1989), 20.Google Scholar

33 Trubek, supra, note 3, 600–605.Google Scholar

34 The following quotes give an idea of the way the concept “ideology” is used in this literature: “Ideology, as I am using the term, describes an aspect or slice of culture located within a particular institutional arena. An ideology is a set of categories by which people interpret and make events meaningful … Instead of viewing ideas and action as analytically distinct, the goal is to develop a way of understanding the social world that bridges these categories. Ideology is viewed as separate from action but as integral to all social practices. ideology is constitutive, in that ideas about an event or relationship define that activity, much as the rules about a game define a move or a victory in that game” (Sally Engle Merry, Everyday Understandings of the Law In Working-Class America, 13 American Ethnologist 253-270 (1986)); “[Legal Ideology is] the structure of values and cognitive ideas presupposed in and expressed through legal doctrines developed by courts and other practical law finding or law creating agencies and in the work of legislators and jurists insofar as these ideas and values serve to influence the manner in which social roles and relationships are conceptualized and evaluated” (Cotterrell quoted by Christine Harrington, Shadow Justice: The Ideology and Institutionalization of Alternatives to Courts (1985), 30; “Dispute processing ideology refers to the structure of values presupposed in justification for this reform and expressed through its practice. These values shape the way in which social relations are conceptualized and evaluated.”Google Scholar

35 Merry, supra, note 34, 253.Google Scholar

36 The following quotes give an idea of the way the concept “process” is used in this literature: “Anthropologists moved from a study of the analysis of law as a system of rules to an analysis of law as a process for handling trouble cases. This shift paralleled a more general shift within the field to a more voluntaristic, actor-centered mode of analysis. The description of societies came to focus more on actors’ strategies and choices rather than rules of behavior, on fleeting and ephemeral social aggregations such as networks and factions rather than enduring groups such as lineages and clans” (Merry and Silbey, supra, note 25, 159). The »processual« approach within legal anthropology is developing a way of understanding the flexibility of the process of invoking rules and norms in conflict situations that promises to provide the analytical basis for dealing with the relationship between legal ideas and systems of power, as is true of other legal anthropologists who are looking at the implications of systems of meaning for legal behavior” (Merry, supra, note 34, 267 note 3: emphases added).Google Scholar

37 See Blumberg, Abraham, The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession, 1 Law & Society Review 15 (1967) and Macaulay, Stewart, Lawyers and Consumer Protection Laws, 14 Law and Society Review 115 (1979).Google Scholar

38 Laura Nader represented the American Anthropological Association on the First Board of Trustees of the Law and Society Association. The first three volumes of the Law and Society Review included articles by Anthropologists Paul Bohannon and Karen Huckleberry, Institutions of Divorce, Family, and the Law, 1 Law & Society Review 81-102 (1966-67); Cicourel, Aaron, Kinship, Marriage, and Divorce in Comparative Family Law, 21 Law & Society Review 103-129 (1966-67); and Morrison, Charles, Social Organization at the District Courts: Colleague Relations Among Indian Lawyers, 3 Law & Society Review 251-267 (1967-69). Vol. 2 No. 1 (1967-68) was dedicated to an analysis of the Legal Profession of India. vol. 4 No. 1 (1969-70) was a Special Issue on Law and Anthropology.Google Scholar

39 See, for example, Nader, Laura, No Access to Law: Alternatives to the American Judicial System (1980) and Richard Abel, A Comparative Theory of Dispute Institutions in Society, 7 Law and Society Review 217 (1973).Google Scholar

40 Merry, supra, note 25, 2063.Google Scholar

41 Lynn Mather and Barbara Yngvesson, Language, Audience, and the Transformation of Disputes, 15 Law & Society Review 775-822 (1980-81).Google Scholar

42 Merry, supra, note 25, 2063.Google Scholar

43 Id., 2062.Google Scholar

44 Mather and Yngvesson, supra, note 41, 776–777.Google Scholar

45 Id., 776 and 779.Google Scholar

46 Merry, Sally Engle, Concepts of Law and Justice Among Working-Class Americans: Ideology as Culture, 9 Legal Studies Forum 59-70 (1985); Id., supra, note 34; Id., Crowding, Conflict, and Neighborhood Regulation, in Neighborhood and Community Environments (Irwin Altman and Abraham Wandersman eds., 1987); Id., supra, note 43; Merry and Silbey, supra, note 25; Susan Silbey and Sally Engle Merry, Interpretive Processes in Mediation and Court, 77-page paper prepared for presentation at the Law and Society Association Annual Meeting, Washington, D.C., June 1987.Google Scholar

47 Harrington, supra, note 34.Google Scholar

48 Yngvesson, Barbara, Legal Ideology and Community Justice In the Clerk's Office, 9 Legal Studies Forum 71-88 (1985) and Id., Re-examining Continuing Relations and the Law, 1985 Wisconsin Law Review 623-646 (1985).Google Scholar

49 Austin Sarat and William L. Felstiner, Law and Strategy In the Divorce Lawyer's Office, 20 Law & Society Review 93-134 (1986).Google Scholar

50 Merry, supra, note 46.Google Scholar

51 Sarat, supra, note 2.Google Scholar

52 For further discussion, see section D, infra. Google Scholar

53 Galanter, Marc, Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Society Review 95 (1974).Google Scholar

54 Id.; Sarat, supra, note 2, 27–28.Google Scholar

55 Alan Hunt, The Ideology of Law: Advances and Problems In Recent Applications of the Concept of Ideology to the Analysis of Law, 19 Law & Society Review 11-37 (1985); Colin Sumner, Reading Ideologies: An Investigation Into the Marxist Theory of Ideology and Law (1979); and Cotterrell, Roger, Law and Sociology: Notes on the Constitution and Confrontations of Disciplines, 13 Journal of Law and Society 1 (1986).Google Scholar

56 Empirical investigation must describe the various structures of value, perception and choice criteria embedded in legal thought; establish the boundaries of these ideological structures; establish their coherence or incoherence; identify the institutional and economic context in which they exist; determine the functions that these ideologies serve for their institutional context; determine the functions that the institutional context serves for these ideologies; and trace how these ideologies are produced, how they are transmitted, and whether their effects are reproduced or transformed through the empirical study of practices.Google Scholar

57 Hunt, supra, note 55, 13.Google Scholar

58 Brigham and Harrington explicitly state this assumption of the relation between ideology and institutional context. Brigham writes: “Insight into the constitutive dimensions of ideology comes from establishing a referent or context that can be delimited … [T]he very institutional relations that constitute the communities responsible for interpreting the law have considerable importance for social research … This is due to the embodiment of ideology in the social relations of institutional life … Doctrine as ideology can be understood through the social and institutional relations that determine its impact” (Brigham, supra, note 22, 49). Harrington writes: “The approach of this book has been shaped by the notion that reform ideology is itself problematic and linked to institutional practices … A sociological perspective on legal ideology informs this study of the relationship between the ideology and institutions of informalism. This perspective leads to the examination of the content of ideology and its role in securing the conditions for the exercise of power … The object is to identify »the conditions under which ideologies develop, are sustained and disintegrated because of the sociological and politically practical significance of the knowledge« [Cotterrell, supra, note 55, 70]. We are concerned with the structures of reform ideology and their political significance” (Harrington, supra, note 34, 11-13).Google Scholar

59 Brigham, supra, note 22 and John Brigham, The Cult of the Court (1987a).Google Scholar

60 “Movements are constituted in legal terms where they see the world in those terms and organize themselves accordingly. All the movements [Brigham discusses] … are constituted, at least in part, by law. Legal forms are evident in the language, purposes and strategies of movement activity as practices” (Brigham, supra, note 22, 89).Google Scholar

61 Brigham, supra, note 22.Google Scholar

62 Id., supra, note 59.Google Scholar

63 Harrington, supra, note 34. Id., Socio-Legal Concepts in Mediation Ideology, 9 Legal Studies Forum 33-38 (1985b). Id., The Political Construction of Law: Legal Practice and the Administrative State, Unpublished 8-page book prospectus (1987A). Id., Regulatory Reform: Creating Gaps and Making Markets, 41-page unpublished mimeo (1987B).Google Scholar

64 Id., supra, note 34 and Id., supra, note 63 (1985B).Google Scholar

65 Id., supra, note 63, 1987 A & B.Google Scholar

66 “One necessary step in analyzing changing formations of rights within the contemporary American legal system is to be able to identify new types of rights. In order to identify new forms, theoretical categories are needed for guidance. The building of categories to aid in perceiving new forms of rights is drawn from the conceptually informed observation of particular historical configurations of existing law and changing political, economic, and social relations. In other words, the theoretical construction of different kinds of rights is contingent upon the sophistication of abstract ideas as well as concrete historical circumstances” (Adelaide Villmoare, The Left's Problems with Rights, 9 Legal Studies Forum 39-46, 43 (1985)).Google Scholar

67 Gordon, Robert, Law and Ideology, 3 Tikkun 14 (1987).Google Scholar

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69 Silbey, supra, note 26.Google Scholar

70 Sarat, supra, note 2 and Silbey and Sarat, supra, note 17.Google Scholar

71 This interpretation was suggested by Boaventura Santos. Personal communication to the authors, May 1988.Google Scholar

72 John Brigham, for example, in his study of judicial impact, argues that “to understand these processes, it is necessary to go beyond politics and attitudes. The more accurate representation presents both of the behavioral factors … as functions of knowledge” (Brigham, supra, note 22, 51). Often such claims for a more accurate science are expressed indirectly through critiques of prevailing theoretical positions. Silbey and Sarat, for example, argue that the pull of the policy audience has caused socio-legal scholars to construct “a limited, partial, and distorted version” of the relation of law and society. If we shift to an interpretive ontology, it will “enable us to provide a richer more complete picture of law in society” (Silbey and Sarat, supra, note 3, 47 and 87). Another example is Yngvesson analysis of the ‘continuing relations hypothesis.’ She argues that while research motivated by this hypothesis has “made available a rich body of data”, at the same time “it points to the limitations of a model which may indeed distort our understanding” (Yngvesson, supra, note 48, 624-25). All emphases in this footnote are ours.Google Scholar

73 “We [social scientists] have little empirical evidence about the extent to which legal doctrine is known to people in subordinate positions or the implications of this knowledge for their ideas about the legitimacy and justice of the social system … As yet, the role of legal ideology in preserving or changing the existing power relations has not typically been addressed by anthropologists studying law …”. (Merry, supra, note 34, 255).Google Scholar

74 Sarat's review of survey evidence about American legal culture indicates that those with firsthand contact with the legal system are less satisfied than those without contact (1977: 441) (Id., 266).Google Scholar

75 “This paper draws on several years of ethnographic research … The study includes extensive ethnographic observation” (Id., 256).Google Scholar

76 The point here is to identify positive statements about the nature of the world that Merry makes on the basis of her structured empirical investigation. Example: “The extent to which a local ideology is controlled or constrained by a dominant ideology and an institutional structure is an empirical question … In different social situations, the relationship between local and dominant ideologies may be quite different” (Merry, supra, note 46, 267).Google Scholar

77 Id. Google Scholar

78 Peller, supra, note 6.Google Scholar

79 Consider the following quote as an example: “This paper has examined the construction of social relations in law. I have tried to assess the role of dispute processing reform, such as regulatory negotiation, in constructing a »crisis« of regulatory litigation and defining a new partnership between regulated interests and the state. I have suggested that such an assessment should include an empirical map for interpreting the pace of regulatory litigation, and that this map does not give support to justifications for reform based on a crisis reading of regulatory litigation. The map is in contrast to the reform ideology because that ideology is wedded to a formalist view of law and dispute processing instead of a sociological perspective on disputing” (Harrington, supra, note 63, 1987, 27).Google Scholar

80 Silbey and Sarat, supra, note 17, 169.Google Scholar

81 Silbey and Sarat, supra, note 17, 170–172.Google Scholar

82 Id., 165.Google Scholar

83 Id., 169-170.Google Scholar

84 Id., 172.Google Scholar

85 “If we take as our subject the constitutive effect of law we cannot be content with literary theory applied to legal doctrine. We must instead study families, schools, work places, social movements, and yes, even professional associations to present a broad picture in which law may seem at first glance virtually impossible.” (Susan S. Silbey and Austin Sarat, Critical Traditions In Law and Society Research, 21 Law & Society Review 165-174 (1987).Google Scholar

86 Silbey and Sarat, supra, note 14.Google Scholar

87 Silbey and Sarat, supra, note 14, 85–86.Google Scholar

88 Sarat and Felstiner, supra, note 51.Google Scholar