Chapter 7

Socio-Legal Methodology: Conceptual Underpinnings, Justifications and Practical

Pitfalls

Darren O’Donovan*

This chapter will focus upon conceptually mapping the place of socio-legal methodology

within legal research. Questions to be addressed include: what are the underlying theories

regarding the nature of law and legal argument underpinning this form of scholarship? How

do we understand the position of law in relation to the general social sciences? Having located

this methodological school, I will then proceed to consider what reasons students or

researchers might have for engaging in socio-legal research. This will be achieved by

discussing five major strands of socio- legal research and how they seek to make distinctive

contributions to knowledge. It will be shown that socio-legal scholarship has challenged

doctrinal legal research culture by questioning the assumed centrality of law and legal

institutions to many social problems. It has sought to present a more complex understanding

of ‘how legal rules, doctrines, legal decisions, institutionalised cultural and legal practices

work together to create the reality of law in action’.1 As a result, the proponents of the

methodology have successfully challenged legal scholars to display greater policy

imagination, by acknowledging law’s status as just one form of regulation, and cautioning

against overly doctrinal understandings of the discipline.

* Dr Darren O’Donovan is a Senior Lecturer at La Trobe University, Australia.

1
R Banakar, ‘Studying Cases Empirically: A Sociological Method for Studying Discrimination Cases in Sweden’ in
R Banakar and M Travers (eds), Theory and Method in Socio-Legal Research (Hart Publishing 2005) 139.
The chapter is also intended as a practical guide; assisting the reader in negotiating the central

pitfalls of adopting a socio-legal approach. Thomson has identified some of the main reasons

given by PhD examiners for requiring re-writes of methodology chapters as follows:

- The researcher does not know the difference between methodology and methods.

- There is very little or no explanation of why this methodology has been chosen. The fit

with the research questions is not made clear.

- There is no fit between the data that will be produced through the use of these methods

and the data that is needed to answer the research questions.

- The blank and blind spots, that is, the limits of the methodology, and/or the research

design, are not considered.2

Whilst lawyers might not be comfortable with the social sciences language of ‘data’, this list

remains helpful in considering the fundamentals of justifying one’s choice of methodology.

This chapter will illustrate how to overcome these hurdles in the relation to socio-legal

methodology.

2P Thomson, ‘Thirteen Reasons Researchers get Asked to Write Their Methods Chapter Again’ (2013)
<http://patthomson.net/2013/01/31/thirteen-reasons-researchers-get-asked-to-write-their-methods-chapter-
again/> accessed 5 August 2015.
Finally, we will also engage with an overarching question which often troubles the legal

researcher confronted by socio-legal techniques: ‘Am I still a lawyer?’ The author will argue

that, rather than reductively placing law within the social sciences, socio-legal methodology

allows the researcher to chart more complex answers to what can still remain distinctly legal

problems. Rather than artificially detaching the ‘legal aspects’ of problems, what emerges is

research with a more holistic understanding of what problems the law can solve and what

social, economic and cultural factors it remains dependent upon.

I – Defining Socio-Legal Methodology

Thomson’s list above helpfully underlines the critical importance of disentangling the concept

of methodology from that of research methods. In their critique of the poor standard of

methodology in human rights law research, Coomans, Grunfeld and Lamminga provide an

excellent definition of the concept:

A work’s methodology is essentially its ‘approach’. It addresses the question of how to

find relevant information, how to organise it, and how to interpret the results. Reflection

on methodology is not a luxury and does not detract from one’s substantive research

efforts. There is no contradiction between method and substance. Method is the substance.

Arguably, the description of a work’s methodology is the most interesting and revealing

part of any academic paper (or research proposal).3

3FCoomans, F Grunfeld, M Kamminga, ‘Methods of Human Rights Research’ (2010) 32 Human Rights
Quarterly 179, 183-84 (emphasis in original).
This quote underlines an important point: that all legal writing has an underlying conceptual

framework, with its emphasis or omissions reflecting an immanent statement about the nature

of law. This is, crucially, distinct from the methods or techniques which are applied in the

research. Method refers simply to a research tool, for example, a qualitative method such as

interviews. Methodology is the justification for using a particular research method in

answering a specific research question. For socio-legal methodology, it is particularly

important that the legal researcher not simply instrumentalise techniques such as surveys, but

rather understands the underlying methodological justification underpinning their decision to

use the method.

So what is the ‘approach’ which socio-legal scholars take to legal research? The author would

adopt a broad tent definition, which views socio-legal scholarship as driven by an underlying

jurisprudential commitment to study law in its context. As Thomas notes, this reflects the

common position that:

Empirically, law is a component part of the wider social and political structure, is

inextricably related to it in an infinite variety of ways, and can therefore only be properly

understood if studied in that context.4

Thus, law is not viewed as an autonomous force to which society is subjected, but rather

shapes and is shaped by broader social, political and economic logics, contexts and relations.

As the Socio Legal Studies Association defined the field in 2009:

4P Thomas, ‘Curriculum Development in Legal Studies’ (1986) 20 Law Teacher 112.

 Socio-legal studies embraces disciplines and subjects concerned with law as a social

institution, with the social effects of law, legal processes, institutions and services and with the

influence of social, political and economic factors on the law and legal institutions.5

Two core planks of socio-legal research may thus be identified:

- Law in action scholarship: how legal norms actually function in reality and what actors shape

their implementation.

- Theoretical perspectives on the relationship between law and society, which are informed

by sociology, history, philosophy, economics, anthropology, political science and

psychology.

As is reflected by the ‘interpretive turn’ in sociology, these two categories are not exclusive:

the reality is that theory is informed by empirical scholarship and vice versa. 6 Work should be

theoretically informed and empirically grounded, and therefore socio-legal scholars often work in

the middle ground between these two approaches. The reader will be struck by the sheer

breadth of the definition of ‘socio-legal’ work. Indeed, it could be alleged that socio-legal

research refers to anything which goes outside the ‘internal perspective’ of doctrinal

methodology.7

5 Socio Legal Studies Association, SLSA Statement of Principles of Ethical Research Practice (January 2009) 1.2.1.
<www.slsa.ac.uk/index.php/8-general-information/4-slsa-statement-of-principles-of-ethical-
research-practice > accessed 5 August 2015.
6 The interpretive turn rejects the idea of the neutral observer producing neutral knowledge, arguing that the social
world should not be understood as a collection of external ‘facts,’ but a product of socio-historically situated
practices and interactions.
7 See generally, C McCrudden ‘Legal Research and the Social Sciences’ (2006) 122 Law Q Rev 632.
II – Framing Socio-Legal Research Questions

Two of the criticisms highlighted earlier by Thomson focus upon how research questions are

framed. A first step for the researcher in addressing methodology is to consider the research

question that has been posed, and whether it implicitly adopts socio-legal premises. In past

doctoral workshops in which the author has participated, two introductory questions have

been used for such reflection:

- Have you used the words ‘inadequate’, ‘effective’ or ‘reform’ in your research proposal or

discussion and in what sense was it used?

- Does your analysis draw upon certain open-textured and interdisciplinary concepts, such

as rights, economic efficiency or deterrence?

Asking these questions permits us to identify possible ‘windows’ for the entry of social

scientific knowledge and methods. The researcher, in answering these types of questions, will

have to respond with a values statement, or by attempting to separate legal considerations

from the political or economic. For instance, in relation to the second question, the researcher

may answer that ‘while any study on competition law could be viewed as being concerned

with economic efficiency, I’m more concerned about the failure of the courts to properly

define what anti- competitive practices are’. The exercise therefore also causes us to ask:

what are the yardsticks which doctrinal methodology uses to assess the law? Furthermore, how

does the doctrinal lawyer effect closure and defend adopting an ‘internal perspective’?
Socio-legal methodology is often stumbled into at the proposal stage of any legal research, as

the student or researcher discusses ‘the need for reform’ or alleges the existence of

‘ineffective’ legislation. It is at this stage that the student needs to reflect upon the fundamental

yardstick they are using. In criticising the law, are they relying upon purely doctrinal values

such as clarity, internal logic and consistency? Or is the focus upon policy, namely the effects

which law has on society? The researcher could also reflect upon the challenge of shaping

effective reform, by considering factors such as:

- In calling for law reform, what are you asking law (e.g. legislation) to achieve?

- Are you asking it to do too much?

- Do legal interventions need to be supported by or to support a process of broader

social change?

- Are there other policy innovations necessary to support your reform?

The research question posed by the researcher will always carry a methodological undertow

within it, which must be accounted for and in the pursuit of which appropriate methods must

be adopted. Of course, the research question can be reframed to suit the researcher’s preferred

methodology, but the implications of this must be fully justified. Researchers must be

prepared to defend their rejection of a particular methodology. This is a key part of

describing how the author settled upon their methodology – without it the research project may

struggle to avoid the following pitfalls:

 • Leaving an unpacked/unaddressed concept/alternative. (Exhaustiveness)

• Leaving out something without justifying it. (Parameters of your study)

• Failing readability: explaining how your argument builds and how you have proved it.

(Structure)

The remainder of this chapter should therefore not be viewed as merely directed at socio-

legal researchers, but rather researchers in law generally. A doctrinal researcher who does not

reflect upon the possibility of socio-legal approaches may, for instance, be unprepared for

queries under the exhaustiveness and parameters headings.

Having introduced the methodology, this chapter will now map five major themes in socio-

legal research. These sections will illustrate how socio-legal research analyses the interaction

of law and society, making unique contributions to knowledge over and beyond a solely

doctrinal approach.

III – Theme 1: Critiquing Closure - Doctrinal and Socio-Legal Scholarship

The first challenge in justifying the use of socio-legal methodology is to describe the

understanding of law which underpins it. For the early career researcher, it is important to

query the interaction of, and divisions between, doctrinal and socio-legal scholarship. Is law a

product of internally constructed rules, procedures and reasoning, or is it influenced by

external social forces and interests? Socio-legal methodology seems to draw upon a view

that law is an
inevitably social phenomenon – representing the product of collective thought and action. As

Allott notes:

Law seems to have a special status among social phenomena by reason of its forms, its

rituals, its specialized language, its special rationality even, and its specific social effects.

But on the other hand, law is clearly embedded in the totality of the social process which is

its cause, and on which it has a substantial determinative effect, not least in providing the

continuing structure of society, its hard programme.8

Thus, the law is not ‘something apart’ from the rest of society, neither is it merely a reflection

or reproduction of other non-legal spheres. In adopting a socio-legal approach therefore, the

researcher often faces a burden of justification: how would they map the relative or partial

autonomy of law and legal reasoning from broader society?

Thus a major contribution of socio-legal methodology is to unravel the false closure which

may shape the law, and to show the role which extra-legal factors or assumptions may play in

putatively ‘neutral’ legal reasoning. As a core debate within jurisprudence, many possible

instances of this could be shown, from postmodernism to critical legal studies. All of these

represent distinct research traditions, rebutting the separation of law from politics, religion or

other social norms.

8P Allot, The Health of Nations: Society and Law Beyond the State (Cambridge University Press 2002) 36.
Feminist legal theories contribute perhaps the most developed discussion of how socio-legal

research can expose the exclusionary patterns of the existing legal tradition. In a classic

article, Bartlett attempted to provide a typology of ‘feminist’ research methods. The first of

these - ‘asking the woman question’ - may be defined as ‘how the substance of law may

silently and without justification submerge the perspectives of women and other excluded

groups.’9 This represents part of a broader methodology of positionality, which asks: ‘What

assumptions are made by law (or practice or analysis) about those whom it affects? Whose

point of view do these assumptions reflect? Whose interests are invisible or peripheral? How

might excluded viewpoints be identified and taken into account?’10

Recent examples of feminist legal methods provide examples of innovative methods which

fulfil this underlying methodological commitment. Initiatives such as the Women’s Court of

Canada and feminist judgment projects have sought to subvert and reimagine existing legal

norms by showing the possibilities for very different legal rulings and systems. As the editors

of the United Kingdom Feminist Judgments Project note:

The [project] represents a form of academic activism, an attempt to tackle power and

authority not from the distance of critique but on their own ground. By appropriating

judgment-writing for feminist purposes, the judgment writers engage in a form of parodic

– and hence subversive – performance. In much the same way as Judith Butler describes

‘drag’ as performance that subverts gender norms, these feminist academics dressed up as

judges

9 The others being feminist practical reasoning and consciousness raising. K Bartlett, ‘Feminist Legal Methods’
(1990) 103(4) Harvard Law Review 829.
10 ibid 848.
 powerfully denaturalize existing judicial and doctrinal norms, exposing them as contingent,

and as themselves (the product of) performances.11

As Margaret Davies notes, a further aspect of such an approach is its ‘equally powerful

constructive dimension’, which could function ‘to alter our perception of the ‘normal’ and

offer ‘positive reconstructions of the concept of law’.12 The forthcoming book publication of

Northern/Irish Feminist Judgment Project represents a notably innovative addition to Irish

legal scholarship; one in which methodological commitment has been combined with a

distinctive method (writing the alternative judgment).13

IV – Theme 2: Working Inside Out - Interactions between Socio-Legal

Scholarship and the Doctrinal Method

While socio-legal methodology is most often used to confront doctrine, could it also play

some role within its confines? Can socio-legal research be applied to improve doctrine?

Doctrinal research is obviously shaped by a core ‘authority paradigm’ i.e. a focus upon

authoritative sources which focuses upon the pedigree rather than merits. 14 It takes an internal

participant- oriented epistemological approach to its object of subject. Yet is this internal logic

entirely sealed off? In evaluating the possible impact of socio-legal methodology, the

researcher should consider whether law and legal institutions are, in fact, open to the

application of other knowledges. An

11 R Hunter, C McGlynn and E Rackley, ‘Feminist Judgments: An Introduction’ in R Hunter, C McGlynn and E
Rackley (eds), Feminist Judgments: From Theory to Practice (Hart Publishing 2010) 8.
12 M Davies, ‘Feminism and the Idea of Law’ (2011) 1(1) Feminists@law 2.
13 M Enright, J McCandless and A O’Donoghue, Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered

Politics of Identity (Hart Publishing forthcoming 2016).

14 G Samuel, ‘Interdisciplinarity and the Authority Paradigm: Should Law Be Taken Seriously by Scientists and

Social Scientists?’ (2009) 36(4) Journal of Law and Society 431.

early advocate of the interdisciplinarity of traditional legal scholarship was Richard Posner,

who, in 1987, spoke of the decline of law as an autonomous discipline.15 This, he argued, was

rooted in the increasing contributions made by law’s ‘complementary disciplines’, such as

economics, which were supplying streams of knowledge underpinning legal doctrine. This

position can actually be taken further if one argues that even the core elements of doctrinal

reasoning have their roots in logic (deduction, induction and analogy) or in subjective

argument-based methodologies of the humanities.

While the requirements of formal legal doctrine represent an unavoidable normative

constraint upon what is deemed a conventionally ‘acceptable’ legal argument, legal theorists

have long debated the extent to which policy plays a role in cases. Even legal positivist

accounts, such as that of HLA Hart, accepted the existence of hard cases, in which discretion

was to be exercised.16 Judicial reasoning is often consequentialist in nature, where the answer

to the question before the court depends, not upon the exact linguistic content or scope of a

statute, but upon which of the options before the court would best serve the legislation’s

underlying purpose.17 In considering the contribution which socio-legal methodology can

make to doctrine, one should consider the extent to which judges make normative arguments,

especially:

- Economic arguments regarding the efficiency of imposing particular legal duties;

- Institutional competence arguments regarding the division of labour between public institutions

in pursuing social goals;

15 R Posner, ‘The Decline of Law as an Autonomous Discipline: 1962-1987’ (1987) 100 Harvard Law Review 761.
16 It is important to note that Hart believed such discretion was based on recognised patterns of reasoning, with
lawyers and legal scholars remaining able to predict the outcomes.
17 T Roux, ‘Judging the Quality of Legal Research: A Qualified Response to the Demand for Greater

Methodological Rigour’ (2014) 24(1) Legal Education Review 173, 176-77.

 - Judicial administration arguments regarding the impact of certain requirements

(e.g. procedural fairness or evidential requirements) upon the administration of justice.

In addition to policy underpinnings, judicial decisions may also draw upon ‘social facts’, which

Burns has defined as:

…general ‘background’ judicial understandings of the world, institutions and human

behaviour [which] provide context and inform the judicial development and application of

law, or are used as ‘social framework’ to assess or interpret the adjudicative facts of the

particular case.18

Surveying negligence cases, Burns shows that judicial reliance upon such facts often occurs

without proper empirical support.19 Malbon has referred to judicial use of unexpressed extra-

legal matters and values in judicial reasoning as the ‘dark matter’ of judicial reasoning.20

This section represents a quick sketch of the trend towards viewing legal doctrine as open to

the application of knowledge from other disciplines. What is crucial for the researcher is to

properly explore their own understanding of how much space there is within doctrinal

reasoning for the application of other knowledges.

18 K Burns, ‘It’s Not Just Policy: The Role of Social Facts in Judicial Reasoning in Negligence Cases’ (2013) 21
Torts Law Journal 80.
19 ibid.
20 J Malbon, ‘Judicial Values’ in I Freckleton and H Selby (eds), Appealing to the Future: Michael Kirby and his Legacy

(Lawbook Co 2009) 581.

V – Theme 3: Closing the Gap - Law in the Books versus Law in Action.

Socio-legal methodology also draws upon legal realism in its focus upon how law actually

functions in society. Doctrinal legal research directs itself solely towards the normative

function of rules: identifying their prescriptive content rather than their actual effect. Socio-

legal methodology tackles certain key silences in doctrinal legal scholarship and adopts a more

realistic approach to law as merely one form of regulation.

At its most narrow, doctrinal scholarship can sponsor an unduly instrumental perception of

law. Three assumptions often shape this instrumental understanding:

1. The assumption of perfect legal knowledge. This holds that law is communicated in a

uniform, undistorted way to those subject to it;

2. The assumption of legal monism. This holds, due to the fact it emanates from the

State, law inherently supersedes other sources of regulation (such as business, culture

and peer pressure);

3. Law may be projected as an autonomous instrument of social intervention not

dependent on other forms of regulation.

Against this, Griffiths argues for a sociologically rooted approach to law as regulation, which

removes these assumptions, and focuses upon:

 1. The ‘socially contingent character of legal communication’, which looks at how legal rules are

translated into concrete contexts. This is seen, for example, in the idea that negligence

litigation has produced disproportionately defensive medicine amongst doctors or that

corporate regulation is crowded out by the realities of business life.

2. Legal pluralism, which focuses upon the idea that there are many other forms of

regulation. For example, in a medical law context there may be the employer-

employee relationship, peer norms etc., which are viewed as more significant.

3. Law as inseparable from the social context which produces it. Ultimately, though we may contest

the degree, the fact remains that most legal rules are executed by specialised agents

within broader society. Thus the efficacy or enforcement of a piece of legislation is

ultimately conditioned upon broader social and human factors.21

The key question here is not whether focusing upon legal rules is an invalid form of

scholarship, but rather that such a focus must be recognised and set in the context. In effect,

any form of legal scholarship emphasising legal rules over other interventions has an

underlying doctrinal framework which must be unpacked. The socio-legal researcher moves

beyond such strictures and attempts to chart the collision of law with real world actors and

institutions.

At this point, it must be stressed that the blanket association of socio-legal methodology with

public law is incorrect – indeed many areas of company law have deeply engrained socio-

legal traditions. It is, for example, rare to find a company lawyer who does not regard

themselves as a scholar of corporate governance. The latter field analyses the many factors,

of which law is one, which determine how a company is governed. The move from discrete

topics of company law to

21This is a summary of Griffiths’ complex paradigm for measuring ‘the social working of legal rules’. See generally, J
Griffiths, ‘The Social Working of Legal Rules’ (2003) 8 Journal of Legal Pluralism and Unofficial Law 1.
the overarching rubric of governance has facilitated a more holistic research methodology.

The term ‘corporate governance’ has thus been described as a conceptual ‘meeting point’ for

disciplines such as law, economics, behavioural sciences and sociology.22 Reflecting the

success of this methodological innovation, Reisenhuber has called for ‘contract governance’

to receive similar prominence within contract law – a subject often associated with doctrinal

dominance.23

VI – Theme 4: Legal Pluralism and Overlapping Normative Orders

Legal pluralism, as Merry argues, is ‘a central theme in the re-conceptualisation of the

law/society relation’, and deserves direct treatment in any chapter introducing socio-legal

methodology. It was referenced in the last section, which discussed how socio-legal

researchers often look at law as one form of regulation. Legal pluralism has been defined by

Griffiths as ‘that state of affairs for which behaviour pursuant to more than one legal order

occurs’.24 Clearly, in the globalised era, it is becoming standard to account for competing

domestic and international legal norms governing particular disputes or subject matter. Here

however, I wish to introduce a broader concept of legal pluralism that argues that the law is

not limited to official state legal institutions. Instead, law can also be found in the ordering of

social groups across society. Moore argues that such scholarship attempts to understand the

impact of semi-autonomous social fields, which:

22 A Dixit, ‘Governance Institutions and Economic Activity’ (2009) 99(1) American Economic Review 6.
23 K Riesenhuber, ‘A Need for Contract Governance?’ in Y Atamer and S Grundmann (eds), Financial Services,
Financial Crisis and General European Contract Law 61-84.
24 J Griffiths, ‘What is Legal Pluralism’ (1986) 24 Journal of Legal Pluralism 2.
 …can generate rules and customs and symbols internally, but that [are] also vulnerable to

rules and decisions and other forces emanating from the larger world…The semi-

autonomous social field has rule-making capacities and the means to induce or coerce

compliance; but it is simultaneously set in a larger social matrix which can and does,

affect and invade it.25

Thus, for instance, attempts to evaluate the role of law in internet regulation would need to

include the internal ordering of hackers or internet standardisation bodies.26

Legal pluralists, unsurprisingly, conflict over the fundamental question, ‘what is law?’ and how

to distinguish legal from general social interaction.27 Tamanaha describes these questions as

intractable, and argues that rather than fragmenting legal pluralism, one should focus upon

‘framing situations in ways that facilitate the observation and analysis’ of the interlinkage of

law and society.28 Attempting to bring some unity to legal pluralist scholarship, he proposes

the following typology of normative orders, which can overlap and interact with official law:

- customary/cultural. This refers to shared social rules and customs, as well a social institutions and

mechanisms evident for example in indigenous or local laws.

25 S Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’ (1973)
7(4) Law and Society Review 720.
26 An excellent example of a legal analysis of the impact of such informal, non-state actors is K Bowrey, Law and

Internet Cultures (Cambridge University Press 2005).

27 Indeed, many lawyers would prefer terms such as regulatory pluralism or normative pluralism to legal pluralism.
28 B Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Sydney Law Review

411.
- religious/cultural. Religious normative ordering extends from the theocratic form of

government to more informal cultural adherence.

- economic/capitalist. This is a particularly significant normative order in the era of

neoliberalism and globalization. Tamanaha notes that it can range from:

Informal norms that govern continuing relations in business communities (including

reciprocity, and norms that discourage resort to official legal institutions in situations of

dispute), to norms governing instrumental relations, to standard contractual norms and

practices, to private law-making in the form of codes of conduct, shared transnational

commercial norms, arbitration institutions, and so forth, including shared beliefs about

capitalism (like ‘market imperatives’).’29

- functional normative systems. These are grounded in institutions founded for the pursuit of

particular functions such as universities or hospitals. While interacting with official law, each

enjoys some autonomous internal ordering.

- community/cultural normative systems. This is a diffuse category capturing the internal cultures

of communities howsoever formed (I have already instanced the example of hackers above). 30

29 ibid.
30 ibid 397-400.
I have foregrounded this typology here as it has proved useful as an introductory gateway in

methodology workshops the author has undertaken. It must be stressed that there is nothing

natural or essentialist about these categories, rather Tamanaha describes them as rough labels

used to mark off subjects and situations that repeatedly arise in legal pluralist writings.31 With

this rough map, participants can be invited to consider what a legally pluralist approach to

their area of study could look like. Accounting for these normative sites prevents the

overvaluation of law and legal institutions, allowing a deeper concept of the relationship

between law and society to take root. As Tamanaha concludes, ‘the longstanding vision of a

uniform and monopolistic law that governs a community is plainly obsolete’ and coexisting

normative systems should be accounted for when considering compliance with, or even the

design of, legal norms.32 Clearly the methodology is often best teamed with empirical

methods, whether qualitative or quantitative, which seek to map the impact of the relevant

competing normative system.

Finally, it should be noted that international law has a distinctive scholarship of legal

pluralism based around the interaction of ‘hard’ and ‘soft’ law. The former refers to the

international legal norms, such as treaties, custom and other sources relied upon and applied

in binding international legal fora. Soft law refers to legal norms that, while not formally

binding, nevertheless exert some quasi-legal force, by shaping behavioural change and

inducing compliance. It often describes goals to be achieved rather than grounding actual

duties, programmatic actions rather than detailed prescriptions, guidelines rather than

obligations. Some commentators have argued that a ‘quest for softness’ is increasingly

marking regulation, with flexibility being prized over ‘hard’ legal norms.33 The reality of

increased normative choice in regulating a state of affairs often requires legal scholars to

critically account for the additional

31 ibid 397.
32 ibid 409-10.
33 H Hillgenberg, ‘A Fresh Look at Soft Law’ (1999) 10 European Journal of International Law 499.
value of ‘hard’ legal norms versus soft law interventions. In effect, even a doctrinal researcher is

increasingly called upon to answer the question: ‘why law?’

VII – Theme 5: Legal Consciousness and Person-Centred Research

In charting the dominant strands of socio-legal research and their benefits, this chapter has

shown how researchers move beyond rule-centric research. We now arrive at the strongest

example of this: the study of legal consciousness, which is marked by its focus upon

everyday, individual lives. Marc Galanter offers an open definition of the field:

‘Legal consciousness scholarship seeks to decentralize the study of law, emphasizing the role of

law in everyday life rather than the behavior of distinctively legal institutions and actors.

Scholars seek to show how legal constructs acquire meaning through everyday social

interaction, contest, and routine.’34

Legal consciousness was traditionally more popular in the United States law and society

tradition than in the United Kingdom and Ireland. More recently, however, a number of

commentators have argued that it should be given greater prominence, and there is evidence

of its increased application.35

Legal consciousness is, in many ways, a ‘law last’ approach – as it focuses upon individual

lives, very often allowing it to focus upon the absence of law where we would expect it to be.

Ewick

34 Galanter stresses that the lack of consensus around the concept in M Galanter, ‘Law: Overview’ in N Smelser and
P Baltes (eds), International Encyclopedia of the Social and Behavioural Sciences, Volume 12 (Elsevier 2002) 8539-540.
35 D Cowan, ‘Legal Consciousness: Some Observations’ (2004) 67(6) Modern Law Review 928.
and Sibley’s landmark text in the field, for example, is shaped by a distinctive approach to

qualitative interviewing. In interviewing 430 individuals for the study, the authors made the

methodological decision not to start with the individual’s experience of formal legal

proceedings but rather asked ‘open questions about neighbourhoods, friends and family’,

progressing to explore things which troubled or bothered people in their ordinary lives. 36 This

question structure allowed for the charting of law’s absence or marginality as well as its

presence.

Legal consciousness research often centres upon those who resist the law, experiencing it as

arbitrary and capricious. Austin Sarat’s early study of welfare recipients found that law was

‘a shadowy presence’ for many within the system, and that complex forms of resistance

shaped their responses to it, with individuals displaying the ability ‘to respond strategically, to

manoeuvre and to resist the “they say(s)” and “supposed to(s)” of the welfare bureaucracy’. 37

There is an inevitable tension between the methodology’s critical tradition and those who

would instrumentalise legal consciousness research by linking it to policy priorities, such as

access to justice. Nevertheless, legal consciousness methodology has been employed to

discover reasons why those subjected to discrimination do not pursue formal complaints, with

studies identifying an ‘ethic of survival’, as well as various ‘coping’ tactics such as deflection

through humour.38 The author’s own area of administrative law, often distorted by an

overemphasis upon doctrine, has recently seen renewed efforts to chart the attitudes of first

instance decision makers to the law.39

VIII – The Challenges of Socio-Legal Methodology

36 P Ewick and S Sibley, The Common Place of Law: Stories from Everyday Life (Univ of Chicago Press 1998). The
interviews would eventually progress to discuss encounters with the law.
37 A Sarat, ‘The Law is All Over: Power, Resistance, and the Legal Consciousness of the Welfare Poor’ (1990) 2

Yale Journal of Law and the Humanities 343.

38 See K Bumiller, The Civil Rights Society: The Social Construction of Victims (Johns Hopkins UP 1988) and B Quinn ‘The

Paradox of Complaining: Law, Humor, and Harassment in the Everyday Work World.’ (2000) 25 Law Soc Inq
1151. 39 M Hertogh ‘Through the Eyes of Bureaucrats: How Front-Line Officials Understand Administrative
Justice’ in M Adler (ed), Administrative Justice in Context (Hart Publishing 2010) 203-225.
In PhD workshop discussions regarding socio-legal methodology, two key anxieties are often

raised by researchers. First, there is the question, ‘am I still a lawyer?’, which, in a smaller

jurisdiction such as Ireland, often reflects a fear of deviating too far from legal professional

contexts. Secondly, there is the fear of falling between two stools. This refers to the fear that,

in effect, the student is committing to ‘two’ PhDs – one in ‘law’ and another in the social

sciences, and may end up not satisfying peers in either discipline.

This chapter has already engaged extensively with the first anxiety, but largely at the

conceptual level. In introducing key strands of socio-legal research, we have seen how they

look to foster a broader identity for lawyers, and for the concept of law. There is no doubt,

however, that part of the ‘am I still a lawyer’ anxiety is rooted in more pragmatic concerns

such as credibility and employability. Many early career researchers are emerging from a

doctrinally dominated education and practice context. As lawyers, we are imbued with

‘internal conventional perspective’, where quality is judged predominantly by demonstrating

adherence to the accepted norms of an internal discourse. I would argue that students tend to

overestimate the pre- eminence of doctrinal approaches in academia and practice, with the

result that ‘academic’ approaches to law attract negative preconceptions.

This is not helped by practitioners who insist that academics have travelled too far from the

courtroom or the primary law. Perhaps the most memorable condemnation was delivered by

Justice Meagher of the High Court of Australia, who bemoaned the:

 …multitudes of academic homunculi who scribble and prattle relentlessly about such non-

subjects as criminology, bail, poverty, consumerism, computers and racism. These may be

dismissed from calculation: they possess neither practical skills nor legal learning. They

are failed sociologists.40

The more recent comments of United State Chief Justice Roberts condemning the disconnect

between legal scholarship and practice also attracted lively debate. Justice Roberts alleged

that law reviews no longer offer much insight to the bar with the articles ‘likely to be [about]

…the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria’.41

Discussing socio-legal methodology in Ireland requires reflection on the roles of, and

interaction between, the profession, academia and government. A smaller jurisdiction often

creates an inherent doctrinal demand: Ireland has the same amount of law requiring doctrinal

exegesis and synthesis as any country, but possesses fewer academics. Nevertheless, the

recent rise of the PhD in law qualification has created a fresh academic pathway where once

academic qualifications centred on practice backgrounds. The increased availability of research

funding in Ireland proves a more solid base for law and society research. Peer discussion of

research methodology within academia is also an important element, with other jurisdictions

having found

40 R Meagher, ‘Now You Can Learn Practice in Theory' (Seventh Law Conference, Hong Kong, 20 September 1983)
175. This and other academic-judicial exchanges were recently discussed by Australian Chief Justice Robert
French in ‘Judges and Academics - Dialogue of the Hard of Hearing’ (Inaugural Patron’s Lecture at the Australian
Academy of Law, Sydney, 30 October 2012) <www.hcourt.gov.au/assets/publications/speeches/current-
justices/frenchcj/frenchcj30oct12.pdf> accessed 5 August 2015.
41 Chief Justice of the United States, John G. Roberts Jr., Interview at Fourth Circuit Court of Appeals Annual Conference

cited by D Wood in ‘Legal Scholarship for Judges’ (2015) 124 Yale Law Journal 2594.
that a majority of academics engage in some form of socio-legal scholarship irrespective of

their public or private law background.42

As much law and society research exists to support the development of evidence-based policy

and to resource public debate, it should attract government funding and support. This is

particularly the case in Ireland, where a weak regulatory and policy-making infrastructure was

a key factor in our recent financial crash. Despite being a small country with limited

resources, Ireland’s civil service culture has been criticised as unduly closed, with a former

Director of the Economic and Social Research Institute calling for greater connection with

experts.43 In the legal context, the standing of socio-legal research is also not helped by the

recurring tendency in political circles to propose the abolition of the Law Reform

Commission. More positively however, the increasing emphasis placed upon the

parliamentary committee procedure can help platform the policy contributions of legal

academics.

Returning to the individual researcher, a key part of overcoming the ‘am I still a lawyer’ anxiety

is taking ownership of the legal aspect of socio-legal methodology, and cultivating a feeling

of control over the research. Without this, PhD candidates may wonder whether they will

reach a point whereby their viva is better conducted by a social scientist or whether their

supervisor will be sidelined, resulting in greater isolation. Students should also be aware that

socio-legal methods exist on a continuum, with very few projects ultimately ‘crossing’ disciplinary

lines. The following typology of interdisciplinary research, which Mattias Siems has recently put

forward, in my view,

42 University of New South Wales Law School, What Makes You Tick? Report on a Survey of the Factors that Condition
High Quality Research (UNSW Law 2013), 71% of researchers characterised their research as socio-legal. A 2004 study
of the United Kingdom academic community found that 50% of legal academics surveyed viewed themselves as
primarily engaged in socio-legal or critical legal research. See also, F Cownie, Legal Academics: Culture and Identities
(Hart Publishing 2004).
43 F Ruane, ‘Research Evidence and Policy-making in Ireland’ (2012) 60(2) Administration 119.
underlines how unlikely it is that a law student would engage in a monodisciplinary work of

sociology or philosophy. Siems identifies four types of interdisciplinary work:

• Basic Interdisciplinary Research: uses the same questions as starting points as traditional legal

research, can be framed as the question of whether law and legal sources actually

matter.

• Advanced Interdisciplinary Research Type 1: refers to research questions that are not about the

law as such e.g. which measures are used to tackle climate change. This research

attempt to provide a comprehensive view of a topic rather than look at one piece of

the jigsaw.

• Advanced Interdisciplinary Research Type 2: Attempts to integrate scientific methods into legal

thinking.

• Advanced Interdisciplinary Research Type 3: This combines the first and second type,

by asking an interdisciplinary research question and attempting to integrate scientific

methods into the legal analysis elements.44

What this typology underlines is that even ambitious socio-legal projects contain a ‘return to

law’ phase, where the academic returns to consider the impact which the research has upon

law. Roux, I believe, speaks for a sizeable proportion of legal researchers, when he argues

that:

…what drives [legal academics] to engage in socio-legal research is an understanding that

transforming doctrinal understandings is a powerful form of social intervention, and that

the conventional techniques of doctrinal research do not always provide them with

sufficient material to influence doctrinal understandings. They thus paradoxically

abandon the
44M Siems, ‘The Taxomony of Interdisciplinary Legal Research: Finding a Way Out of the Desert’ (2009) 7 Journal of
Commonwealth Law and Legal Education 5.
 traditional methods of traditional doctrinal research in order to achieve their primary

purpose.45

Even the legal researcher with no faith in law is ultimately saying something about the

phenomenon, for example that it is not worth the attention it is accorded.

This links to the second anxiety, which is that the researcher will fall between two stools,

producing a work which is not framed in terms that feed into doctrinal argument, but not

valued by other disciplines due to its superficial application of research methods used by

these disciplines. As is evident from reading other contributions to this book, the adoption of

empirical research methods requires training and protracted engagement. Yet do not

sociologists have the same worries about accounting for law in their projects, the same

intellectual distance to travel? Ironically, selling legal researchers on socio-legal methodology

often requires them to view themselves as, due to their existing knowledge, uniquely

positioned to carry it out, in comparison with other disciplines. Thus, if lawyers do not

appreciate or defend the depth of doctrinal legal reasoning, they can undervalue their position

within the academy, and cede the interdisciplinary field to sociology. As de Burca points out,

the methodological conversation should not be one-sided:

To the political scientist, legal scholarship often appears to be arid, technical, atheoretical

… full of unstated or unproven assumptions, lacking empirical support, and seemingly

disinterested in the actual dynamics of political and social change. To the lawyer, political

45 Roux (n 17) 189-90.

 science scholarship often appears to be obsessed with methodology, jargonistic, and – in

particular when it engages with law – remarkably banal.46

The intellectual quietism regarding methodology in the legal academy has meant that critiques

of legal scholars’ use of social sciences methods are more prominent than other disciplines’

mistreatment of law. Epstein and King, for instance, have condemned much ‘empirical legal

scholarship’ as deeply flawed, with many peer reviewed papers showing ‘little awareness of,

much less compliance with, the rules of inference that guide empirical research’.47 While there

is not the scope within the confines of this chapter to evaluate these specific claims, I would

argue that legal academics do not regularly engage in similar methodological critiques of the

social sciences’ treatment of law.

IX – The Pitfalls of Socio-Legal Research

As I conclude this chapter, however, I do wish to frame some observations on the factors

which may lead to the misapplication of socio-legal research methods. First, there is the

danger of an ‘echo chamber’ within the legal academy, whereby early career legal researchers

seek out examples of other lawyers’ socio-legal publications and rely upon these in creating

their methodologies. This ‘second hand’ shortcutting effectively exposes the researcher to the

possibility of ‘downloading’ a methodological ‘virus’, whereby mistakes or simplifications

are compounded within the academy.

46 G de Búrca, ‘Rethinking Law in Neofunctionalist Theory’ (2005) 12(2) Journal of European Public Policy 313.
47 L Epstein and G King, ‘The Rules of Inference’ (2002) 69 University of Chicago Law Review 1.
This also raises the interesting question of whether the legal academy is prone to ‘group think’

or ‘fads’ in its treatment of other disciplines. I would instance two examples: first, the undue

dominance of the Chicago school over law and economics scholarship, and secondly, the

instrumentalising of postmodernist philosophers such as Foucault in legal research. One of

the key lessons learned from ‘law and economics’ scholarship is that we must always ask

‘law and whose economics?’ As students of jurisprudence will be aware, until quite recently,

law and economics as a field was unduly deferential to devices such as Pareto efficiency and

the rational actor thesis. The current emphasis upon law and behavioural economics is a

corrective to this imbalanced treatment of the discipline, but ironically it may suffer from the

same excesses.48 Legal researchers must pay due attention to the internal disciplinary debates

which surround many methods and positions.

The use of postmodernists in legal research can, at times, display a similar selective tendency.

One interesting debate surrounds the concept, currently in vogue, of ‘governmentality’. This

refers to Michael Foucault’s particular understanding of ‘the art of government’, which he

refers to as an ‘ensemble formed by the institutions, procedures, analyses, reflections,

calculations and tactics’ which combine to produce a complex form of power.’ 49 The concept

offers much to socio-legal scholars, as it distinctively maps out the multifaceted nature of

governmental power. There is however, a key methodological problem with its employment –

the contested status of law in Foucault’s thought. Some scholars attribute toFoucault the

belief that law has ‘been expelled from modernity’, 50 with Duncan Kennedy arguing that he

presents laws and legal institutions ‘as elements in power situations without sharply

distinguishing them from other

48 See, for instance, K Yeung, ‘Nudge as Fudge’ (2012) 75(1) Modern Law Review 122.
49 The author strongly underlines that this is a very rough definition of an extraordinarily complex concept. See
M Foucault, ‘Governmentality’ in J Faubion (ed), Power: Volume 3: Essential Works of Foucault 1954-1984 (Penguin
2002) 201-02.
50 See generally, A Hunt and G Wickham, Foucault and Law: Towards a Sociology of Law as Governance (Pluto Press 1994).
elements’.51 Even amongst those scholars who believe Foucault’s understanding of law to be

more constructive, the complexity of the role he ascribes to it is strongly underlined.52 Thus,

any application of the concept of ‘governmentality’ must reflect fully upon Foucault’s

understanding of law’s status as a discourse. Beyond the specific example, it is a

methodological imperative that the legal researcher acknowledges and accounts for the

ideological situatedness of social sciences concepts.

Finally, I would underline an overarching danger to the methodology: the undervaluing of the

internal perspective. There is a danger that socio-legal approaches can provoke the researcher

into looking outside of law and legal institutions for a ‘but for’, utopian model of change,

rather than considering what incremental change law and legal actors can promote. In the

United States, Justice Harry Edwards captures this fear by arguing that ‘while the schools are

moving towards pure theory, the (law) firms are moving toward pure commerce, and the

middle ground – ethical practice – has been deserted by both’. 53 The result is that the idea of

law may be emptied out, with “everything important is seen as taking place around law, not

within it”.54

X – Conclusion

This chapter has sought to focus upon methodology rather than specific methods, many of

which will be discussed by other commentators in this book. In linking my contribution to the

51 D Kennedy, ‘The Stakes of Law, or Hale and Foucault!’ (1991) 15 Legal Studies Forum 327.
52 B Golder, ‘Foucault and the Incompletion of Law’ (2008) 21 Leiden Journal of International Law 747.
53 HT Edwards, ‘The Growing Disjunction between Legal Education and the Legal Profession’ (1992-1993) 91 Mich

L Rev 34.
54
J R Morss, ‘Part of the Problem or Part of the Solution? Legal Positivism and Legal Education’ (2008) 18 (1/2)
Legal Education Review 55, 65.
discussion of methodology as a whole, I would identify the following key themes. First, theory

is indispensable to practical research in law. Personal reflection upon the nature of law’s

interrelationship with society and its place in solving (or exacerbating) problems is crucial for

the formation and delivery of any research project. As Cryer et al argue: ‘the theoretical basis

of a project will inform how law is conceptualised in the project which in turn will determine

what kinds of research questions are meaningful or useful, what data is examined and how it

is analysed.’55

In my past classroom discussions with PhD students, doctrinal research was often projected

as a ‘safe’ methodology. This is fundamentally flawed – while the doctrinal ‘method’ may be

of great familiarity to the researcher, the selection of the doctrinal methodology will be

subjected to the same level of justification and unpacking as the socio-legal. The fact that

doctrinal research has often not been subjected to this discussion perhaps reflects the failure

of law to take ownership of its own methodology. Thus, a second recurring theme in this

chapter has been the need for our discipline to discuss what ‘state of the art’ legal research

actually embraces.

Finally, this chapter highlighted how socio-legal methodology attempts to foster connection

and holism in solving research problems. Any interdisciplinary research is deeply

challenging, and acquiring the knowledge of the relevant methods is an exhaustive process. It

may be initially disempowering for the researcher ‘go back’ to the classroom. Researchers

may doubt their ability to critique particular qualitative or quantitative methods, fearing they

will possess only a working knowledge. Yet in the author’s view, the practicalities of studying

qualitative or quantitative methods can be overcome with proper institutional commitment.

At the individual level, the

55R Cryer, T Hervey, B Sokhi-Bulley, A Bohm, Research Methodologies in EU and International Law (Hart Publishing
2011) 5.
researcher must construct an understanding of how the knowledge of other disciplines can be

applied, the benefits of so doing, and the knock on effects for the project’s underlying

conception of law. Such interdisciplinary exploration can be the bedrock of a positive self-

identity as a legal researcher. While it is possible to study ‘legal aspects of Eurozone

governance’ or ‘legal mechanisms for combating climate change’, such projects must address

how they define the ‘legal’ and the extent to which such aspects can be examined in isolation

from other social processes. This is not to erase disciplines or specialisations, but to marry

them with an awareness of the danger of fostering intellectual silos. In this context, it worth

recalling Myrdal’s condemnation concerning the narrowness of macroeconomic scholarship

in the 1970s: ‘the isolation of one part of social reality by demarcating it “economic” is not

feasible. In reality there are not “economic”, sociological or psychological problems but just

problems and they are complex’.56

56 G Myrdal, Against the Stream: Critical Essays on Economics (Vintage Books New York 1975) 142.