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Interpretive Sociolegal Research

Published online by Cambridge University Press:  27 December 2018

Christine B. Harrington  and
Barbara Yngvesson
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Extract

A major challenge for scholars seeking new directions in sociolegal research is the persistence of old paradigms and assumptions about law. The challenge for the new is not to be cast as part of the old by efforts that assimilate its methods, goals, and results to earlier approaches. Such efforts, aimed at comparison and clarification, tend to “domesticate” the new, or in Boa Santos's words “doubly institutionalize” a developing project by reading the order of a conventional analysis into the emergent order appearing in the interstices of new scholarly work. In this essay we focus on interpretivism as a developing project in sociolegal research. In particular, we discuss three aspects of interpretive research that are at the center of current debates in sociolegal theory: meaning construction and the dynamics of power, legal ideology, and knowledge as politics. Our discussion focuses on different readings of ideology, on different understandings of power, and on the politics of interpretive research connected with these readings. To illuminate the struggles over these points and at the same time illustrate the process of domestication, we begin with a recent paper by David Trubek and John Esser, “‘Critical Empiricism’ in American Legal Studies.” Their paper lays out a treatment of ideology and politics that provides a basis for our broader discussion of interpretive work in the second half of this essay.

Type
Review Section Debate
Information
Law & Social Inquiry , Volume 15 , Issue 1 , Winter 1990 , pp. 135 - 148
Copyright
Copyright © American Bar Foundation, 1990 

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References

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3 See de Sousa Santos, Boaventura, “Room for Manoeuver: Paradox, Program, or Pandora's Box.” 14 Law & Soc. Inquiry 157 (1989). Santos uses Paul Bohannan's concept of double institutionalization. See Bohannan, “The Differing Realms of the Law,”in L. Nader, ed., “The Ethnography of Law,” Special Publication, 67 Am. Anthropologist 33 (1964).Google Scholar

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5 Trubek and Esser interchange the words “empiricism” and “empirical.” Empiricism, a theory that all knowledge and meaning are dependent on experience, and empirical research, which involves the use of observation for the purpose of providing an account of the social world, should be distinguished. Their definition of empirical research seems to incorporate both meanings: “careful observation of the external world for the purpose of providing valid descriptions,”id. at 39; and see Peller, Gary, “The Metaphysics of American Law,” 73 Cal L. Rev. 1159 (1985), whose definition of empirical research they use.Google Scholar

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15 Trubek and Esser's argument is grounded in references to Sarat, Austin. & Silbey, Susan S., “The Pull of the Policy Audience,” 10 Law & Pol'y 97 (1988), but is also closely linked to earlier discussions of transformative politics by Trubek, David, “Where the Action Is: Critical Legal Studies and Empiricism,” 36 Stan. L. Rev. 575 (1984).CrossRefGoogle Scholar

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35 A constitutive concept of law differs from the liberal-legal conception in that law is understood as having the power to frame politics; see Brigham, John & Harrington, Christine B., “Realism and Its Consequences: An Inquiry into Contemporary Sociolegal Research,” 17 Int'l J. Sociology L. 41 (1989). Legal processes, doctrine, and institutions shape political possibilities. Recent examples of work on a constitutive approach to law include Robert Gordon's study of lawyer's work as ideology views “every legal practice—from drafting a complaint for simple debt to writing a constitution—[as] mak[ing] a contribution to building a general ideological scheme or political language out of such explaining and rationalizing conceptions” (see Robert W. Gordon, “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,”in G. Gelson, ed., Professional ldeologies in America 72 (Chapel Hill: University of North Carolina Press 1983)); Maureen Cain's analyses of work in civil courts as “conceptive ideological work: using old rules to generate new ways of thinking, of making sense of, and thereby of constituting ideologically new and emergent material forms” (see Cain, Maureen, “The General Practice Lawyer and the Client: Towards a Radical Conception,” 4 Int'l J. Sociology L. 13 (1983)); and John Brigham's research on social movements as “constituted in legal terms when they see the world in those terms and organize themselves accordingly…. Legal forms are evident in the language, purposes, and strategies of movement activity as practice” (see Brigham, John, “Right, Rage, and Remedy: Forms of Law in Political Discourse,” 2 Studs. Am Political Development 306 (1987). Also see Harrington, Christine B., “Regulatory Reform: Creating Gaps and Making Markets,” 10 Law & Policy 293 (1988), and Harrington, Christine B. & Merry, Sally, “Ideological Production: The Making of Community Mediation,” 22 Law B Soc'y Rev. 709 (1988). Earlier sources on constitutive theory include Eugene Genovese, The World the Slaveholders Made (New York: Vintage Books, 1969), and Klare, Karl, “Law-Making as Praxis,” 40 TELOS 123 (1979).Google Scholar

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50 The move in recent work to a focus on sites rather than on margins or centers is intended as a move away from assumptions about core and periphery, without losing sight of the power relations that shape meanings in these settings: see Harrington, & Merry, , 22 Law & Soc'y Rev. 709 (cited in note 35). Challenging conventional scholarship that retains legal hierarchies and expanding the location of law not only decenters the conventional hierarchy of legal form, but also challenges the recent revival of political pluralism in social theory—a revival best captured by the “many voices” view of “legal discourse” and the embrace of Richard Rorty's philosophical relativism; see Richard Rorty, Philosophical and the Mirror of Nature (Princeton, N.J.: Princeton University Press, 1979), and for an example of sociolegal work that embraces Rorty's position see Austin Sam 6 Susan S. Silbey, “The Pull of the Policy Audience,” 10 Law & Policy 97 (1988). For critiques of this position see Alan Hunt, “The Critique of Law: What is ‘Critical’ about Critical Legal Theory,” in P. Fitzpatrick & A. Hunt, eds., Critical Legal Studies (New York: Basil Blackwell, 1987), and Brigham, & Harrington, , 17 Int'l J. Sociology L. 41. As discussed above, interpretive sociolegal research building on constitutive theory is interested in how modern forms of power, such as law, gets separated from material life—from their own role in creating the relations of material life, see Harrington, Christine B., “Moving from Integrative to Constitutive Theories of Law: Comment on Itzkowitz,” 22 Law & Soc'y Rev. 963 (1988). If we limit the interpretive project to simply documenting “challenging voices” or the “multi-vocality of law,” we will indeed fall back into the relativism of “descriptive” legal pluralism—a relativism which depoliticizes law by finding it “everywhere”—and implicitly embraces the politics of that epistemology.CrossRefGoogle Scholar

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75 Id. at 45. This approach is best articulated by Marcus & Fiacher, in Anthropology as Cultural Critique.Google Scholar

76 See MacBean, James R.,” ‘Two Laws' from Australia, One White, One Black,” 1983 Film Q. 30 (1983).CrossRefGoogle Scholar

77 Bourdieu, Outline of a Theory of Practice at 1 (cited in note 36).Google Scholar