The Socio-Legal Lab: An Experiential Approach to Research on Law in Action

de Souza, Siddharth Peter; Hahn, Lisa Book — Published Version The Socio-Legal Lab: An Experiential Approach to Research on Law in Action Provided in Cooperation with: WZB Berlin Social Science Center Suggested Citation: de Souza, Siddharth Peter; Hahn, Lisa (2022) : The Socio-Legal Lab: An Experiential Approach to Research on Law in Action, ISBN 978-9-4036-6879-6, Open Press Tilburg University, Tilburg, https://doi.org/10.26116/2ckw-gd47 This Version is available at: https://hdl.handle.net/10419/266477 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, gelten abweichend von diesen Nutzungsbedingungen die in der dort genannten Lizenz gewährten Nutzungsrechte. Terms of use: Documents in EconStor may be saved and copied for your personal and scholarly purposes. You are not to copy documents for public or commercial purposes, to exhibit the documents publicly, to make them publicly available on the internet, or to distribute or otherwise use the documents in public. If the documents have been made available under an Open Content Licence (especially Creative Commons Licences), you may exercise further usage rights as specified in the indicated licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ THE SOCIO-LEGAL LAB: AN EXPERIENTIAL APPROACH TO RESEARCH ON LAW IN ACTION AUTHORS: SIDDHARTH PETER DE SOUZA AND LISA HAHN Published by: Open Press Tilburg University. [email protected] Open Press Tilburg University is the academic Open Access publishing house for Tilburg University and beyond. Designed by: Spitting Image - Bangalore. Editorial design: Aditya Bharadwaj, Sandhya Visvanathan. Illustrations and Graphics: Sandhya Visvanathan, Aditya Bharadwaj, Shoumik Biswas and Aniruddh Menon. Peer reviewed by: Larissa Vetters and Christian Boulanger. This book has been made available Open Access under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. ISBN: 9789403668796 DOI: 10.26116/2ckw-gd47 We would like to thank Dr. Larissa Vetters and Dr. Christian Boulanger for their generous time, advice and efforts in reviewing this book and helping us bring it to completion. Without their encouragement and enthusiasm throughout the last many years, this would have been a much tougher project to complete, and we are deeply grateful for their discussions and kindness. Dr. Daan Rutten at Open Press Tilburg University has been committed to this project and allowed us freedom to experiment with new formats and designs. We thank him for his support in realising our vision for the project. We would also like to thank Marcel Hobma for copy editing the book. A special thanks also to Dr. Britta Korkowsky, who provided us with opportunities to build the curriculum for the book in an intensive way through the Week of Methods program at the Georg-August-Universität Göttingen. The Socio-Legal Lab emerged thanks to the support of the Integrative Research Institute Law & Society (LSI) at Humboldt Universität zu Berlin, and to numerous colleagues who took part in the workshops we have held in Berlin. The community at Humboldt, the interdisciplinary spirit at LSI and the inspiring colloquia with our PhD supervisors, Professor Susanne Baer and Professor Philipp Dann, have been central to the development of for this project. Inspiration for this book further arose from insights into graduate training programs at the Center for Study of Law and Society (Berkeley) and the Centre for Socio-Legal Studies (Oxford). We are grateful for everyone involved in making this possible, especially Professor Catherine Albiston. Finally, the book came alive thanks to the design and discussions with Sandhya Visvanathan, Aniruddh Menon, Aditya Bharadwaj and Shoumik Biswas, who were not only creative and playful but also wonderful collaborators in bringing together this interactive workbook. We are very grateful for their time and patience in designing this book. Acknowledgments Table of Contents 1 CHAPTER 01 Socio-Legal Research in a Lab PART 01 2 CHAPTER 01 Introduction: a Lab Approach to Socio-Legal Studies CHAPTER 01 CHAPTER 01 4 5 CHAPTER 01 Locating the book “The Socio-Legal Lab: An Experiential Approach to Research on Law in Action” is an interactive workbook for socio-legal research projects. It employs the idea of a “lab” as a space for interactive and experiential learning. As an introductory book, it addresses researchers of all levels who are beginning to explore interdisciplinary research on law and are looking for guidance on how to do so. The book can be used by teachers and peer groups to experiment with teaching and thinking about law in action through lab-based learning. Why another book on socio-legal research? There already exist many highly regarded books about the theoretical debates and research methodologies concerning law and society. However, the research process is not only a summation of methods but also a result of the practical realities that a researcher encounters when conducting research. To address this practical reality, we designed this book as a visual and interactive workbook. It uses a mixture of literature, case studies and games to guide readers through the different stages of socio-legal research. At the same time, it addresses the challenges they might face when they are actually designing and conducting their projects. Throughout the book, we use visualizations as a way to make socio-legal studies more approachable. Before getting started, this first chapter will provide guidance on how to read this book, introduce what is experiential about our approach to researching law in action and explain the concept of a lab for socio-legal methods. A Guide Through the Book CHAPTER 01 6 What to expect? The overall aim of this book is to provide a toolkit for socio-legal research projects. It is designed to accompany and inspire researchers on their way through their project and to empower them into thinking more creatively about their methods, while also demystifying them. The book covers different themes and questions that may arise during a socio-legal research project. This starts with examining what research and interdisciplinarity mean and in which forms they can be practiced. After an overview of the research process, we will discuss how research in action is often unpredictable and messy. As a result, we argue that it is important to consider the practical and ethical challenges of doing research, and to reflect on the processes of knowledge production and assumptions that we have as researchers. 7 CHAPTER 01 AN INTERACTIVE & VISUAL WORKBOOK Conducting a socio-legal research project further requires an overview of the theoretical landscape. The book introduces general debates about the nature, functions, and effects of law in society. Furthermore, common dichotomies in socio-legal research such as “law” and “the social” or “qualitative” and “quantitative”, “micro” and “macro” research will be explored, along with suggestions for ways on how to bridge them. We will also explore different ways to ensure the outreach and impact of one’s research by communicating results through journals, blogs and social media. Finally, the book also discusses academia as a social space and the value of creating and using networks and peer groups for mutual support. Turning to the application side of socio-legal research, the book delves deeper into questions of data on law and society: where to collect it and how to deal with it in a reflexive manner. It discusses different methods of qualitative socio-legal research and offers ways in which they can be experienced through exercises and simulations. In the research process, generating research results is followed by publishing and communicating them. CHAPTER 01 8 HISTORY SOCIOLOGY CULTURAL STUDIES POLITICAL SCIENCE AND MORE GEOGRAPHY ANTHROPOLOGY LAW & 9 CHAPTER 01 Audiences Law can be approached from different disciplinary angles: “from the inside”, with a doctrinal approach, but also “from the outside”, by examining its historical background and its social, cultural, political or economical conditions and effects. Everyone interested in engaging with an interdisciplinary perspective on law is encouraged to read this book – regardless of their disciplinary background. As a guide to socio-legal research, this book tackles disciplinary boundaries by asking overarching questions about the interplay of law and society. These questions have long been studied in various research traditions, for example in US law & society research. However, by taking up debates and examples from both the Global South and the Global North, we hope to make the book approachable for a global audience in English speaking research contexts. CHAPTER 01 16 Objectives of the lab By creating an informal atmosphere for the lab, we hope that it can become a space to: Encourage more collaboration in research Provide spaces to communicate more flexibly and openly Allow for testing and incubation of new ideas Create communities for support and for the exchange of ideas + + + + Implementing a Lab Getting started A lab is intended to be an informal yet secure space to learn about, reflect on and discuss socio-legal studies. This idea can be implemented in many ways: as a pedagogical approach to convey content (as in this book), but also when organising a workshop, teaching a class or creating a study group. In each of these contexts the conditions of a successful lab will vary. In the final part of this chapter, we would like to introduce what it takes to start a lab – as a mindset by individuals, for teachers in a class and for researchers when engaging with their peers. We would like you to do so through the following exercises. 17 CHAPTER 01 18 Conditions for a successful lab Interdisciplinary Composition Trust, Community and Empowernment One key element is the interdisciplinary composition of a team or group, which can be achieved by including both legal scholars and researchers from other disciplines. In exercises where different research methods are applied, the cross-disciplinary exchange can lead to a change in perspective: it reveals the boundaries of one’s own perception which, through disciplinary socialization, asks only particular kinds of questions and focuses only on certain aspects of reality. The second condition is a collaborative learning atmosphere where all uncertainties in the research process can be discussed openly, confidentially and in a non-hierarchical manner. An integral part of the lab-atmosphere is to ensure that there is sufficient room for discussion and conversation among the participants. To this end, several smaller exercises like the ones on the following pages, can be used to share research interests, break the ice and create an open atmosphere for conversation. 19 CHAPTER 01 Starting Your Own Lab Get a group together; the ideal size is between five to fifteen. Choose a space where you can talk freely. This can be in a garden, a park or in a classroom. Get some sheets of papers, pens and pencils. No need for previous knowledge: through this workbook, we will guide you on how to set up a lab and run a few activities that facilitate learning by doing. We suggest to keep it light, informal and open. + + + + + CHAPTER 01 20 two truths & a lie EXERCISE Instructions: Along with your peer group, take 2 minutes and think about two truths and one lie about yourself. Once you are done, begin sharing. Ask others to guess if they can identify the lie. Games and interactive exercises play a crucial role in gathering information and in applying content that is shared. Moreover, they can provoke moments of irritation, camaraderie, levity, and thereby support the building of communities. We would like to conclude this chapter with a couple of activities to help set the mood for the lab, and also to facilitate an open and interactive conversation. Curious? Let’s try it out. 21 CHAPTER 01 NOTES / SKETCHES 22 As we begin the process of building a sociolegal project, we would like you to do a short exercise which is called reverse brainstorming. It might be that you have doubts about the nature of your project, the skills you have or even your overall expertise. We would like you to take a few moments and think through these issues. This exercise can be a starting point for locating where you are, and can be a useful point to return to throughout your engagement with the material in the book. Rev Brai ng erse nsto rmi EXERCISE 23 01 02 03 04 Define the problem Example: How do I conduct a socio-legal project? Example: How will I fail in my socio-legal project? Example: “I don‘t understand which method to chose“ or, “I will not find a publisher”. Now write down solutions for all of the problems/reasons to fail you have found. Reverse the problem Find reasons to fail Find solutions This activity employs the technique of brainstorming, which involves collecting ideas and details on one topic. This can be challenging, especially if one has limited knowledge of a topic and more questions than answers. In this situation, reverse brainstorming can help. It allows you to develop solutions by focusing on problems. There are four steps to this exercise which we encourage you to try: CHAPTER 01 24 NOTES / SKETCHES 25 CHAPTER 01 NOTES / SKETCHES CHAPTER 02 32 What is Interdisciplinarity? What is research? All research is about increasing the stock of knowledge. There are building blocks on how to do so. Typically, research is a process with many stages: 01. OBSERVATION | PROBLEM Research starts from an observation or a problem you encounter. 03. THEORY You will then look for scientifically grounded statements that already describe or explain the observation or problem. This is called theory. 04. METHODOLOGY In this step, you will think about how to acquire more knowledge on your topic. You might want to verify or falsify a theory or concept. If there is no sufficient theory on your problem or observations yet, you have to develop your own theory from the bottom-up. In both cases, you need to think about the process of acquiring knowledge so it is scientifically robust. This process is called methodology. 02. RESEARCH QUESTION This step indicates the motivations for your research. The question should be focused, concise and open to debate. 05. METHODS Once you have decided about a certain methodology, you require a set of suitable methods. Methods are tools and techniques to acquire knowledge. Your material can be texts which you then analyse such as through content analysis or a discourse analysis, but you might also use quantitative methods such as surveys as data. 06. RESEARCH ANSWERS Ideally, the previous steps will give rise to initial answers to the research question. In addition, new questions might emerge. 33 CHAPTER 02 MOTIVATES INFLUENCES Research Answers Methods Observation / Problem Methodology RESEARCH Research Question Theory INFLUENCES DETERMINES HELP TO SOLVE LEAD TO Research rests on (implicit) assumptions about the nature and limits of science and knowledge, called ontology and epistemology: ONTOLOGY is concerned with the question “What is reality?”. It asks what the world is and whether we discover or construct it. EPISTEMOLOGY refers to how we make sense of the world by posing the question “How do we know what reality is?”. If you are curious to learn more about the building blocks of scientific research, we recommend Booth, Colomb & Williams (2008) and Della Porta & Keating (2008) as further readings, from which this overview is adapted. CHAPTER 02 34 What is interdisciplinary research? MONODISCIPLINARY RESEARCH uses the approaches common in one discipline to frame research questions. It draws on established theories, methodologies and methods, all based on assumptions about how knowledge is produced held in this discipline. INTERDISCIPLINARY RESEARCH draws on the knowledge and tools from more than one discipline. As we will see in the following sections, the degree in which disciplinary knowledge is combined may vary. However, what is particular about all forms of interdisciplinary research is that it combines insights from several disciplines, thereby creating a more comprehensive perspective (Klein & Newell, 1996). The need for interdisciplinary research emerges from complex problems and observations that cannot be solved or understood with just one discipline. Interdisciplinary thinking can be introduced at all stages of a research process. This may, at the same time, influence the whole research cycle, because the building blocks of the research process are intertwined. Ontological and epistemological assumptions influence how one tries to make sense of observations and problems (theory) and according to which rules (methodology) and with which tools (methods) these observations and problems should be studied. Interdisciplinary research is therefore more than just adding knowledge from two or more disciplines. 35 CHAPTER 02 You will be able to give a more comprehensive answer. As we will see throughout the book, challenges may emerge within this process. For example, there are epistemological, theoretical and methodological tensions between the legal and sociological images of law and society that may complicate the research process (Banakar, 2015. pp.36). You start with a complex problem. INTERDISCIPLINARY PERSPECTIVES MOTIVATES INFLUENCES INFLUENCES DETERMINES HELP TO SOLVE LEAD TO Research Answers Methods Observation / Problem Methodology Research Question Theory CHAPTER 02 My interdisciplinary project –Part I Now it is your turn: Think about the various disciplinary perspectives that could be relevant for your project. Collect ideas on how they might come into play in each of the stages of the research process. If you have questions rather than answers do not hesitate to write them down as well. EXERCISE 37 CHAPTER 02 1) What is my observation or problem of interest? 7) What answer do I hope to give? 2) What is the question I have? Why is this important? 6) What tools and techniques should I use to acquire knowledge? 5) How should I go about the process of acquiring knowledge? 4) What are the explanations that researchers offer? Are there existing theories I can use? 3) How do different disciplines speak about my topic and how can I link them? MOTIVATES INFLUENCES INFLUENCES DETERMINES HELP TO SOLVE LEAD TO Research Answers Methods Observation / Problem Methodology Research Question Theory CHAPTER 02 38 Tips: developing a research question One challenge in research is finding a precise and interesting research question that is feasible but at the same time within the limitations of your project (concerning time, expertise, funding, etc.). This applies to all research but is particularly difficult in interdisciplinary projects that analyze multilayered problems that require the integration of various perspectives. This makes techniques for moving from a topic to a specific question an important asset. Booth, Colomb and Williams (2008, pp. 35) suggest formulating a sentence with three elements: TOPIC: “I am interested in/ working on …” QUESTION: “Because I want to find out why/how/who/ when/where…” SIGNIFICANCE: “In order to…” CHOOSE AN INTERESTING TOPIC: • Ask ‘why’ and ‘how’ questions. • Think of why it matters to you and why it should matter to others FIND OUT MORE: • Look at sources that may be useful • Ask yourself what potential sub-topics there could be. • Do these further topics raise new kinds of sources? THINK ABOUT YOUR AUDIENCE: RESEARCH QUESTION EXAMPLE: • Why is the internet undemocratic? (unclear) • How is fake news damaging young adults on platforms like Twitter? (clear) MOVING FROM RESEARCH TOPICS TO PROBLEMS NARROWING DOWN A RESEARCH TOPIC 39 CHAPTER 02 NOTES / SKETCHES If you want to know more on how to frame your research question, check out this article by the George Mason University Writing Center from where the above information is adapted. (2018): Scan this to know more on how to frame your research question. CHAPTER 02 40 EXERCISE 41 CHAPTER 02 This is a warm-up exercise for interdisciplinary teams. The aim is to compare different disciplinary approaches, interests and ways of thinking by discussing single terms. One person suggests a term that is to be discussed. This can either be an everyday term or a scientific term (power, gender, environment, airplane, etc.). Every participant describes how the discipline they are trained in would examine the term. EXAMPLE: ‘DATA’ LAW: Are data “things” in the legal sense and is there a concept of data ownership? How is data protection regulated? Which body has the legislative competence? How can laws on data regulation be compared across legal systems? COMPUTER SCIENCES: ... SOCIAL SCIENCES: ... OTHER DISCIPLINES: ... POLITICAL SCIENCES: ... PSYCHOLOGY: ... CHAPTER 02 48 Why Interdisciplinary Research? Advantages and added value Generally, interdisciplinarity fosters reflection upon implicit disciplinary assumptions as well as the validity and limits of scientific conclusions. It acknowledges that there are power imbalances in systems of knowledge. In research on law, this is particularly valuable: Using multiple disciplines allows for more holistic “theories, concepts, testable hypotheses and robust empirical findings to understand the interaction of laws, legal actors (judges, lawyers, policy, juries, litigants and lay people) and legal institutions with the people and other institutions that are affected by law” (Menkel-Meadow, 2019. pp.39). Let us now look at two examples that illustrate the added value of an interdisciplinary approach: PLURALISE DISCOURSE FOSTER REFLECTION HOLISTIC PICTURE OF LAW & SOCIETY CHAPTER 02 This case refers to the instance where algorithms were used by courts in the US to determine whether an accused was likely to commit an offence again. The algorithm profiled the accused and used historical data to assess the likelihood that they would repeat their offence. In a study by Pro Publica, Angwin, Larson, Mattu and Kirchner (2016), it was found that this algorithm had a bias because it did not take into account race as a factor. Due to this omission, as well as issues with the historical data, accused Black people were more likely to be misclassified than White people. This case raises important interdisciplinary questions on matters at the intersection of human rights, computer science and data science. DISCUSS: What would make an approach to algorithms more focussed on justice? Would an approach that considered the socio-political context of the accused have made it more effective? How must regulators balance the companies proprietary interest in keeping the functioning of the algorithm secret with the public interest of greater transparency about the code? Algorithms for recidivism EXAMPLE 01 CHAPTER 02 In India, a twelve digit Unique Identity is assigned to all Indian residents. The alleged uniqueness is through biometrics (fingerprints, iris scans and photographs) and demographic information. The project was positioned by the government to enhance administrative efficiency of welfare programs – reducing duplication and corruption and increasing inclusion. The argument put forward was that having such a unique identity would help in improving delivery of welfare services and preventing leakages. This claim was studied by both legal researchers and developmental economists to ascertain whether the project actually met its stated objectives. The legal researchers found that due to the lack of regulation when the project was first rolled out, there was a lot of ambiguity in regard with its stated purpose. For instance, it was observed that there was a continuous expansion in the functions of Aadhaar without taking into account people’s consent. In the last few years its initial purpose was completely expanded from providing poor people with an identity to being a basis for access to different state services. It is an example of what Ramanathan (2017) has called “function creep”. The Aadhaar project EXAMPLE 02 51 CHAPTER 02 There were also various kinds of challenges that emerged in terms of the delivery and access to services, including challenges of data connectivity, inconsistencies of data entry, an industry of middlemen who became gatekeepers to access services and a challenge in the technology regarding the authentication of identity (Khera, 2019). These different studies demonstrate how researchers explore diverse aspects when they study the claims of this biometric ID project. Some explored the implications that the lack of a regulatory framework had in terms of the increasing scope of the project without the necessary protections, whereas others explored the project in terms of the impact it had for the lived reality of people. Adopting interdisciplinary approaches in this instance are valuable because they are able to highlight different kinds of regulatory, social and economic challenges. This demonstrates the multifaceted nature in which socio-legal issues can be studied. CHAPTER 02 52 INDIVIDUAL • Disciplinary cultures of framing questions. • Finding suitable “entry points“ for integrating knowledge from different disciplines. • Varying assumptions of how to prove something true or false. • Difficulty to be comprehensive in each domain and translate concepts between domains. • Universities are mostly mono-disciplinary. • So are journals, publishers and review processes. • Deciding on an audience can be challenging. Challenges Interdisciplinarity does not only bring added value, but also multifold challenges on at least three levels: Have you already experienced one of these challenges? In chapter 8 we suggest an exercise to reflect upon such instances by writing a CV of failures. RESEARCH INSTITUTIONAL • Mono-disciplinary education. • Time constraints: acquiring and publishing interdisciplinary findings takes more time so you might publish less. • Lack of support from a supervisor. • Challenges from a job market perspective because one does not easily “fit” to one faculty. 53 CHAPTER 02 RESEARCH Addressing challenges There are various strategies that can be used to address the challenges of interdisciplinary socio-legal research in terms of how to conduct it, in which institutional setting to do so and how to navigate disciplinary structures as an individual researcher. In this section, we present suggestions developed by participants in a workshop on “Navigating Interdisciplinarity” that we organized in Berlin in 2021, as well as in a text by Nikitina (2006). Contextualising: • Draw on other disciplines to contextualize your topic, e.g. history, political developments. • Collect, integrate & consolidate information: look for real life problems to solve, bring together competing perspectives and offer new ways of understanding the problem. Failing: • Research is a process which can fail: It is okay to re-formulate questions and adapt topics. Reflection and Explaining: • Keep a running protocol of your choices (methods, research questions, etc.). • Explain (and defend!) your choice of method or case. • Make the limits of your data and findings transparent. Conceptualising: • Identify concepts that are welldeveloped in other disciplines and transfer or connect them. • Ask people from different disciplines about their perspectives on your topic. CHAPTER 02 54 INDIVIDUAL INSTITUTIONAL Use existing opportunities: • Visit summer schools or workshops on interdisciplinary topics and method trainings. • Attend conferences from other disciplines to familiarize yourself with different academic styles, cultures and discourses. Develop new opportunities: • Encourage institutional organization at your institute or university, and demand method classes and training. • Organize a method workshop yourself. Build confidence: • Cultivate confidence that interdisciplinarity as your expertise. • Learn how to navigate between expectations. Build relations: • Others encounter similar problems, so build up networks or peer groups for exchange. • Institutionalize cooperations with other interdisciplinary scholars who could give you feedback. 55 CHAPTER 02 Now that you are familiar with interdisciplinary choices throughout the research process as well as different ways in which interdisciplinarity can manifest, think about where you would locate yourself. Depending on the type of interdisciplinary research you undertake: • What kind of questions would you ask? • Which theories and methodology would you draw from? • Which methods would you choose? EXERCISE My interdisciplinary project –Part II 56 Six perspectives on interdisciplinarity The purpose of this exercise is to discuss interdisciplinary research on law from six different perspectives. You need at least six people for this. Each person (figuratively) puts on a different hat and argues from their respective roles. Colour in the hat of your choice in the following page. EXERCISE 57 CHAPTER 02 The research process will be more challenging. There is a tension between the sociological and legal pictures of society, and the functions of law. It brings a better understanding of social conditions of law and is a corrective of doctrine. I am excited to learn how other disciplines think. I am afraid to fail. You need to be aware of different disciplinary scientific reasoning and academic traditions. Thinking about thinking. What thinking is needed? Organizing the thinking. Planning for action. Information and data. Neutral and objective. What do I know? How will I get the information I need? Positives,plus points. Why an idea is useful.Logical reasons are given. Intuition, hunches, gut instinct. My feelings right now. Feelings can change. No reasons are given. Difficulties, weaknesses, dangers. Spotting the risks. Logical reasons are given. BLUE HAT GREEN HAT WHITE HAT YELLOW HAT RED HAT BLACK HAT Process Creativity Facts Benefits Feelings Cautions It produces a richer and more nuanced notion of law. Ideas, alternatives and possiblities. This exercise is directly taken from the one day design challenge by Roca (see sources). CHAPTER 03 64 Methodological Anxieties Research manuals and handbooks guide researchers on how to conduct a socio-legal project and ensure the quality of their work by drafting a rigorous research proposal. While these formal research manuals are important for drafting a research design and understanding quality criteria in empirical research, they rarely prepare researchers for the messy reality of the research process. The methodological gap problem 65 CHAPTER 03 Research in action is often accompanied by unexpected obstacles as well as opportunities. In practice, research is seldom a linear process, but rather a constant wandering back and forth between different stages of the research design. Thus, research is best understood as a fluid process that is shaped by unpredictable factors like (a lack of) access, recurring doubts, ambiguities and uncertainties. Research in action THE FLUIDITY OF THE RESEARCH PROCESS MOTIVATES INFLUENCES RESEARCH ANSWERS METHODS OBSERVATION / PROBLEM METHODOLOGY RESEARCH QUESTION THEORY INFLUENCES DETERMINES HELP TO SOLVE LEAD TO DOUBT UNCERTAINTY AMBIGUITY ACCESS CHAPTER 03 66 Conducting Law and Society Research REFLECTIONS ON METHODS AND PRACTICES HALLIDAY AND SCHMIDT, 2009 The unpredictability of research in action leads to feelings of uncertainty. Halliday and Schmidt (2009) call this the “Methodological Anxiety Syndrome“. The term describes the fear of lacking the methodological skills for empirical socio-legal research. One cause of methodological anxieties is the lack of a comprehensive methods training. One cure suggested by Halliday and Schmidt is promoting an extended notion of research methods: Understanding them as both formal rules and social practice can demystify the “mystery of research methods“ (2009. pp. 3). READING: 67 CHAPTER 03 CHAPTER 03 68 EXERCISE There are several ways to reflect upon your methodological anxieties: Sharing our anxiety without words: Talk to your supervisior or other researchers about their experiences with research in action: Take your research proposal and brainstorm for each stage of the research process: • Which steps depend strongly on other persons or circumstances? • Which obstacles did or could occur? • How did or could I approach such obstacles? • Draw a representation of your anxiety with respect to your research. • Show the drawing to another person in the group. Ask them if they have been in a similar situation and whether they have experiences to share. • In how far have you experienced the disjuncture between research plans and the lived reality of the research process? • At which points did you have to deviate from your original research plan? • Why and how did you reframe your research design? BY YOURSELF IN CLASS IN CONVERSATION Demystifying research 69 CHAPTER 03 NOTES / SKETCHES CHAPTER 03 70 EXERCISE 71 CHAPTER 03 One strategy to use methodological anxieties productively, is to document them in a research diary. The process of writing creates awareness of these challenges. Such notes are essential to the genesis of a project. A research diary can form the basis for the later methods of your project. Documenting all research design decisions is part of a process that ensures the quality of research (Webley, 2019. pp.66). This becomes more important when the research is hypothesis-driven and when it generates theories from the empirical material. The diary may include: • Methodological anxieties • Research design decisions • What has worked • What has not worked EXERCISE: Research diary CHAPTER 03 72 NOTES / SKETCHES 73 CHAPTER 03 NOTES / SKETCHES CHAPTER 03 80 EXAMPLES: Reflecting methodologies FEMINIST STANDPOINT THEORY • The Feminist Judgments Project is a series of judgment writing projects that have taken place around the world. • The purpose of these projects is to bring together feminist academics, practitioners and activists to take a look at significant cases across jurisdictions, and embark upon re-writing them. • Through this, the project seeks to go beyond critiquing judgments to show how the judiciary could have been different when using different points of views. • See: Hunter, McGlynn and Rackley (2010). After having discussed critiques of universal claims of truth and reality, we would like to suggest two approaches which address these ideas methodologicially: the feminist standpoint theory and ideas of decolonisation. This theory proposes to take the woman’s experience as the point of departure, and questions dominant forms of knowledge production. Central ideas: • Knowledge is socially situated. • Marginalized groups have special access to knowledge that is not available to those belonging to a privileged group. • Research, particularly research focused on power relations, should begin with the lives of the marginalized. • See: Sprague (2016. pp. 46). FEMINIST JUDGMENTS PROJECT 81 • SOAS, a leading university in the UK, put together a toolkit to help teachers and academics decolonize their curriculum. • The questions ranged from whether the curriculum presumed a particular kind of student to whether it cultivated diverse viewpoints around particular issues, whether it encouraged critical thinking, whether the syllabus has potential to cause trauma for certain students and whether the sources of the literature are wide and include different epistemic traditions. • See: Decolonising SOAS (2018). DECOLONIZING METHODOLOGIES DECOLONIZING THE CURRICULUM • How do existing knowledge power structures impact how we identify our research problems? • Does this impact our research resources and thereby its purposes? • What is the relationship between the researcher and those being researched? • Who conducts the research? Is knowledge being distorted? What are the effects of dominant traditions? Decolonizing methodologies is the process of examining the nature and formation of knowledge and to critically and reflectively study of what is being researched and who is researching. It raises questions including: CHAPTER 03 82 Reflect on your Positionality So far, we have discussed basic ideas of epistemology as well as institutional aspects of knowledge production. But all of this has an individual dimension too. It can be captured with the term “positionality”. Positionality refers to “the role a scholar’s background and current (socially constructed and perceived) position in the world plays in the production of academic knowledge“(García, 2014. pp.794). Recognizing positionality builds on a constructivist or interpretivist tradition by challenging the notion of value-free science. Knowledge, instead, is seen as a “product of a specific position that reflects particular places and spaces” (Sánchez, 2010). Irrespective of whether one shares the notion of subjectivity in knowledge production, reflecting upon one’s positionality is valuable and can be practiced by answering these questions: • In how far does the motivation for a research project and the decisions taken during it derive from personal experiences and worldviews? • What is the degree of privilege one holds and which power relations exist between the researcher and his or her interlocutors? By reflecting upon your positionality, you might even discover that the personal experiences you have had with law influence how you conceive its role in society, its pitfalls and potentials. 83 CHAPTER 03 Reflect on your Positionality There are multiple factors that may influence a researcher’s positionality. These factors can be ascribed or self-ascribed, and result from one’s interaction with others as well as the context one navigates in. LAW RACE NATIONALITY RELIGION ABILITY GENDER SEXUALITY ETHNICITY CASTE CLASS INCOME EDUCATION OTHER FACTORS RESEARCHER CULTURE POLITICS ECONOMY OTHER SOCIETY HISTORY RESEARCH PARTNERS RESEARCH PARTNERS Example from Bourke (2014. pp.2): “I am a White, heterosexual, cisgender male, and I have lived in the southern United States for most of my life. Prior to conducting the research study upon which this reflective work is based, I worked in undergraduate student housing for several years, all in the southern United States. My experiences working with (….). Through conversations with students of color in the residence halls and other facets of campus life, I heard (….). Following the initial completion of the research project, I began to reflect more deeply on the experience beyond the written page. Specifically, I asked myself questions about the experience: 1. What role did my positionality as a White man studying issues of race in higher education play? 2. How did I use my positionality in different spaces? 3. Did my positionality influence the interactions that I had with student participants?” One way of becoming aware of your positionality as a researcher is through reflective memo writing (Derry, 2017). Memo writing is an essential part of a reflective research process. You can write a memo for yourself as a research diary, share and discuss it with research partners or even include it in the methods section of your research project. REFLECTIVE MEMO MEMO WRITING EXERCISE 84 85 CHAPTER 03 Depending on the research phase you are in, you can ask yourself the following questions when writing a reflective memo: BEFORE THE PROJECT • Which personal and/or professional experiences motivated me to pursue this project? • What is my research goal and how do I want to contribute to change? • Which social, cultural and political factors and legacies influence the way I approach the project and develop research questions? WRITING UP • Which perspectives and experiences become visible or invisible through my writing? • Who should my research speak to and whose experiences or worldviews are not reflected? Why? 03 DURING RESEARCH/ FIELDWORK • How does my positionality converge or diverge from that of my research partners’? • How do I problematise and/or acknowledge intersectional notions of difference (gender, race, class, religion etc.)? • How has my positionality changed during the research process? Why or why not? 02 01 CHAPTER 03 86 Making positionality explicit? The exercises mentioned above allow for a reflection on positionality while conducting research. Whether or not to make this explicit in publications of research results is yet another question, and depends on many aspects such as disciplinary traditions or power structures in the field of research. A risk in emphasizing the subjectivity of research is that the validity of the results might be questioned. Keeping this in mind, there are different ways of reflecting subjectivity in publications: • In the methods section of a book or paper it is required to reflect upon methodological choices as well as limits of the approach chosen. Here, potential subjective biases can be discussed, too. • Writing a text in the first person (“I”) instead of the third person makes subjectivity explicit. To learn more about the narrative, epistemological, moral, and methodological aspects of using “I”, see (Sardan, 2015. pp.103). • The most explicit form is including a section in your publication where you reflect upon your positionality (like in the reflexive memo). 87 CHAPTER 03 Reflecting practical challenges of research also means developing an awareness for research ethics. Ethical issues in research concern the responsible treatment of research partners and research data and the scientific standards of writing up research results. It also concerns your integrity as a researcher when interacting with colleagues and when promoting your research in the scientific community. SCIENTIFIC COMMUNITY COLLEAGUES RESEARCH PARTNERS RESEARCH PROJECT & DATA In the following, we focus on ethics in research relations. There is also a practical and institutional aspects of dealing with research data, which we will discuss in chapter 6. Research Ethics CHAPTER 03 88 Ethics in research relations One fruitful way to explore law in action is through interactive, qualitative methods such as interviews or observations (see chapter 7). As with all research that involves human beings, this requires an ethical treatment of research partners during data collection as well as data analysis. Singleton and Straits (2018. pp. 47) suggest a number of ethical aspects that should be reflected when planning and executing a project: • Carefully collect data, weigh the potential harm your research might do to your interlocutors and think of ways to minimize it. Ask yourself: Is the time required and the potential personal stress caused justified? What measures might reduce it? • Inform your research partners about the project in order to enable them to exercise informed consent. This can encompass: • The purpose of the research. • A clarification of their rights (privacy etc.). • A statement that participation is voluntary and can be withdrawn at any time. • Be honest when analyzing and reporting your findings. Document how you proceeded and make this procedure transparent. Depending on the institution, country or even region, there are strict guidelines for many of these issues. For example, researchers in the EU must comply with the General Data Protection Regulation. Research projects in some jurisdictions must pass a research ethics committees or board. Find out whether there is a code of ethical conduct in your profession, institution or region. We close this chapter now with two exercises that are helpful for reflecting upon ethical issues during the research process as well as in research relations. 89 Please review each step of the research process through an ethical lens and discuss: What ethical conflicts can occur during each phase? How are you (ethically and legally) obliged to protect and interact with your research partners? Does your institution have any guidelines on integrity and ethical behaviour? Anticipating ethical dilemmas RESEARCH ANSWERS METHODS OBSERVATION/ PROBLEM METHODOLOGY RESEARCH RESEARCH QUESTION THEORY EXERCISE 96 CHAPTER 04 Mapping General Debates in Socio-Legal Studies 97 98 What are the interrelations between law and society? How do they influence, shape and transform each other? This chapter offers an inductive way to examine these key questions of socio-legal research. It introduces different schools of thought in the literature and their approaches to general debates about the nature, functions and effects of law in society. Thinking about general debates in socio-legal studies in a lab format means going beyond presenting their foundations. “Labbing” theories is about making tangible how they apply to various themes and cases. Through mapping and brainstorming exercises, readers will be encouraged to develop their own understanding of the field and identify theoretical approaches suitable for their research interests. Content 99 What is law? The subject of research varies depending on what we consider as law and its relation to society. Mindmap & role play QUESTIONS RELEVANCE ACTION What are the functions of law in society? Using strands of research that think about these questions helps to find your own approach. Socio-legal lexicon CHAPTER 04 100 The Many Faces of Law What “is” law? There are multiple ways to think about law and what it “is”. Answers to this question vary depending on if you conceive of law as a normative order or as situated within a social reality. LAW AS RULES AND NORMATIVE ORDER: Law can be understood as a particular normative order and as a system of rules. When following a narrow understanding, which is shared by most legal positivists, law is limited to codified state law. Within this view, law is characterized as objective and neutral, operating with an internal logic and being distinct from other norms like morality. The question of what law “is”, is answered here with reference to the legal system itself. However, such a narrow understanding reaches its limits in plural normative settings, where non-state law exists and governs behaviour. LAW IN SOCIAL REALITIES: What law is can also be studied by observing “what is going on in reality” (vandenBos, 2020. pp.3). Inductive approaches like these take societal realities as their starting point in their exploration of law (Baer, 2021. pp.27). Considering law as a sociocultural phenomenon answers the question of what law “is” with reference to its role in society. However, this raises follow-up questions on what is meant by “society” and “reality”, and on the nature of our knowledge about these concepts: can it be discovered or is it merely constructed? 101 LAW & / = SOCIETY: These two perspectives alone show that law and society can be seen as either independent, as one being dependent on the other or as interdependent (Banakar, 2015. pp.53). What law “is” can be discovered by examining it from the inside, in its normative universe, or from the outside by looking at how it manifests in the world. It is also possible to use both perspectives concurrently. SOCIAL REALITIES NORMATIVE ORDERS CHAPTER 04 102 Tracing appearances of law in society How law and society are interwoven and co-constitute each other can be observed in all areas of life. From this broad variety, we will now take a closer look at three areas that have traditionally been the focus of sociolegal studies. Taking an inductive approach, the aim is to trace debates in law and society and examine the questions that emerge in them. Through examining law in the everyday and public spaces, in disputes and in plural legal orders, we would like you to respond to what you observe on how law emerges in ordinary and everyday instances. 103 Law in the everyday Law does not only manifest in complex ideas like the rule of law, it also regulates and rules the everyday. It is habitual and appears everywhere in public space. Sibley and Cavvichi (1998) explain how law manifests in everyday interactions from going to public spaces, driving or registering a new car to paying a bill. In many of these instances, legal facts have become natural for people, for example when they stop for a red light or drive on the right side of the road. After reading the text please discuss: • How does law manifest in daily life? What further examples can you think of? • What implications do these have for social relations? CHAPTER 04 104 Law in conflict resolution Law is a tool to settle conflicts, and transforms social conflicts into legal ones. What do we know about this process of transformation? Before, scholars have argued that conflicts evolve in stages or phases, or in the form of a dispute pyramid - as argued by Miller and Sarat (1980). Albiston et. al. (2014) have extended the pyramid metaphor into a “dispute tree” that stands in a legal forest” in order to capture what happens when people mobilize the law. This metaphor suggests that conflicts are not linear and that some branches of the legal system may bear fruits (substantive outcomes such as compensation) or flowers (symbolic results). ADJUDICATION LEGAL CLAIM DISPUTE: NO RESOLUTION CLAIMING: CONFRONT OTHER PARTY, ASK FOR REMEDY BLAMING: IDENTIFY RESPONSIBLE PARTY NAMING: PERCEIVED INJURY UNPERCEIVED INJURIOUS EXPERIENCES DISPUTE RESOLUTION OUTSIDE OF LITIGATION INJURIES THAT DO NOT BECOME DISPUTES SETTLEMENT BEFORE ADJUDICATION DISPUTE RESOLUTION THROUGH ALTERNATIVE NORMATIVE SYSTEMS + + + + A graphic taken from Albiston et. al. (2014) on the dispute pyramid as modelled by Miller and Sarat (1980). After reading the text please discuss: • What is the nature of disputes? • How are disputes resolved? • Which factors restrain people from mobilizing law? • Who enforces court decisions? 105 CHAPTER 04 112 Perspectives on Law: a Theoretical Review Mapping general debates Theoretical frameworks offer explanations on how the world works (Webley, 2019. pp.62). This also applies to socio-legal research, which is concerned with theoretical questions about the nature and functions of law in society. Answers vary depending on the theoretical lens one applies. Accordingly, multiple international approaches and “schools” of social scientific studies of law have emerged over the past decades (Banakar, 2014. pp. 41). Because of their crossfertilization and overlap, there is no clear distinction between these schools, but the perspectives they offer on law in society are still very insightful. In the following section, we present a review of theoretical perspectives and their implications. We suggest that these perspectives can be categorized according to the three core interests that they focus on: the conceptualization, application and evaluation of law. The first approach seeks to examine law and how it co-produces social realities. The second is to examine how law is applied in different contexts and how it is mobilized in everyday life. The third is to understand whether law meets its intended effects and how it can be improved. Of course, these core interests overlap and are fluid rather than fixed categories. A critique of law can emerge from all of these approaches. It can be theoretically grounded, arise during the application of law, or be empirically based in its lack of efficacy. 113 apply and generate law evaluate and improving law conceptualise and theorize law CHAPTER 04 114 Applying theory: climate litigation To illustrate how these three perspectives on law lead to different questions and interests, we apply them to the example of litigation on a topic with implications for everyone: climate change. • Climate litigation all over the world brings cases before courts in order to hold governments or companies accountable for their climate-damaging behavior and in order to demand more ambitious climate goals. Here, law is a means to counter environmental, social, economic and other consequences of climate change. • A collection of cases worldwide can be found in the Climate Change Litigation Database provided by the Sabin Center for Climate Change Law (Columbia University). One of the many climate litigation cases is the People’s Climate Case, which was initiated in Europe by a network of lawyers, plaintiffs, NGOs and scientists in 2018. It proved to be a prototypic example of strategic litigation for climate change. The case was filed by ten families from all over the world against the European Parliament and the Council of the European Union. They challenged the EU’s 2030 climate targets as inadequate to protect their fundamental rights and to prevent climate change. 115 Scan this to find out more about People’s Climate Case. To find out more about the People’s Climate Case, including its aims, the course of the legal proceedings and the individuals and organizations that engaged in it, please visit the initiative’s website by scanning the QR- code and watch the video that introduces the case. In 2021, the EU Court of Justice dismissed the case on procedural grounds due to a lack of legal standing. The Court was not convinced of an individual concern of the plaintiffs, as every individual worldwide is likely to be affected one way or another by climate change (ECJ, 25.3.2021, C-565/19 P). CHAPTER 04 116 Conceptualising and theorizing law An important focus of interdisciplinary research on law involves the creation of theories and concepts about law in society. When doing so, the key question is: what do we take into account when we conceptualize law to understand its nature and how it manifests in the world? Law can be conceptualized by for example drawing on sociological theory, which approaches law from the “outside” by examining how it emerges in practices, processes, systems or institutions. Through this, theory is tested and further developed to generate generalizable insights. Schools of thought in line with this interest are legal sociology, law & society research (Banakar, 2014. pp.42) as well as critical legal studies. Through the lens of these sociological theories and discourses, a variety of functions of law in society become apparent: as a system (Luhmann), as enforced rules (Weber), as a form of oppression (Marx) or as an instrument of power (Foucault) which is constructed from a male standpoint (MacKinnon). All of these approaches contain critiques that are theoretically grounded. The nature and effects of law can also be conceptualized using a bottom-up approach by referring to law as it is used in daily life. This is suggested by legal anthropology, which understands law as a system of meanings embedded in social practices (Pirie, 2013). Approach In order to conceptualise law in the context of climate litigation, one can consider its relation to social realities: • How are global inequalities negotiated in climate litigation? • To what extend can law and litigation be a tool to remedy climate change as a global crisis of modernity? Or does law only perpetuate this crisis because it is based on an anthropocentric worldview with a narrow understanding of legal subjects? • What are the locations and sites from where an understanding of the legitimacy of law in climate cases can be observed? How does this account for local practice and tradition? Application 117 CHAPTER 04 118 Applying and generating law A second interdisciplinary research interest in law is understanding the process of legal application and how law is generated. Here, the key questions are: What do we and what should we take into account if we apply the law? And how do we account for different receptions of law from a state and non-state perspective? The process of applying law can be grasped by linking an outsider and insider view. This requires examining legal doctrine and what the law is as well as how it is experienced by those who apply it and those who are affected by it. In doing so, it examines how law is generated and orders everyday life. One school of thought with this research interest is sociological jurisprudence (Banakar, 2014. pp.46). It emerged from the criticism that a purely technical understanding of law as “law in the books” neglects the social and cultural reality in which law is created - the so-called “law in action”. This critique gave rise to the vision of developing a new scientific conception of law and transforming legal education and practice. With regard to legal application, climate litigation can be examined in terms of knowledge that is or should be included in the laws that aim to respond to climate change and the legal professionals applying such laws: • How do scientific findings on climate change find their way into legal rules and application? • Who shapes these processes (judges, activists, NGOs or individuals), and how do they do this? Do they go through formal mechanisms like litigation or informal mechanisms? And how is law generated in these cases? • What are the boundaries in which courts – through judges as socialized human beings in a particular society – operate doctrinally when applying the law, for example when dealing with the question of who is affected by climate change? Approach Application 119 CHAPTER 04 Evaluating and improving law Finally, a third interdisciplinary research interest in law is the evaluation of its effects on society, often by offering a critique of its functioning and suggesting where the implementation of law can be improved. The key questions here are: What do we take into account when we study whether law fulfills its intended effects? And what are the ways in which we can critique the nature and function of law? Evaluating law in action entails looking at the impacts of legal regulation, its enforcement and its implementation. It puts into focus whether law fulfills its intended goals or –if it fails to do so – how it can be improved. It also offers an empirically grounded critique of law, its functions and its effects. One schools of thought with this interest is legal policy research (Banakar, 2014. pp.48). It engages in socio-theoretical debates, but with a focus on evaluation rather than on generating theory. From a policy perspective, climate litigation can be investigated in terms of regulatory processes they respond to and the ways they alter them: • Why does the EU and its member states fail to reach the goals set out in the 2030 Climate Target Plan? How are political, social and legal factors related to this failure? • How can increased climate compliance be enforced through courts? • What are the gaps in the enforcement of court decisions on climate targets? How can law, in addition to the state, enforce responsibility on private actors? Approach Application CHAPTER 04 120 Building your own socio-legal lexicon Moving from questions to answers, one way of understanding the interrelations of law and society is by looking at concepts that appear often in sociolegal research literature. Sometimes these concepts arise from terms that are central to the field, for example “law” and “society”. These terms can be the starting point of new concepts and can become pivotal within debates. The point of this exercise is to build a lexicon of socio-legal concepts that are relevant for your research. In order to find out more about these terms, please start with a literature review. When doing so, consider at least two different disciplinary perspectives on the following terms. EXERCISE 121 STEP 1: For a first overview, begin with a literature search on one of the following broad terms, or pick a term that is specifically relevant for your research: • Law • Dispute • Conflict • Society • Regulation • Policy • Justice • Equality STEP 2: To trace how debates have evolved over time, continue your research by reviewing more specific terms and concepts that are particularly controversial, for example: • Is versus ought • Implementation gap • Legal consciousness • Judicialization/Judicial activism • Legal pluralism • Radiating effects of courts 128 CHAPTER 05 Dichotomies in Socio-Legal Research 129 CHAPTER 05 130 In the previous chapters, we have encountered many dichotomies in sociolegal studies. Take for example the juxtaposition between “law in the books” and “ law in action”, or “qualitative and quantitative research”. This chapter explores the use of these dichotomies as theoretical tools to understand socio-legal research, and offers suggestions on how to bridge them. It uses examples from literature and policy to demonstrate the ways in which the reader can explore and find their paths between these different positions. Content 131 CHAPTER 05 What are common dichotomies in socio-legal research? Socio-legal research invites working with dichotomies such as law and the social, formal and informal law. Brainstorming QUESTIONS RELEVANCE ACTION Why are dichotomies used as a frame to study law and society? Why is this problematic? Dichotomies are ambivalent: They help to structure knowledge, but also oversimplify the complex reality. How can these dichotomies be bridged? Framing Dichotomies Scamper MethodDeconstructing dualities can help thinking about how they could be bridged. CHAPTER 05 132 Identifying Dichotomies What are dichotomies? Dichotomies are a way to structure and thereby construct reality in law as well as scientific research. Take the dichotomy between formal and informal law for example. Formal law is law that has the backing and sanction from the state. For instance, judgments delivered by courts or legislations from parliament. Informal law is one that emerges from non-state sources like community, religion, caste and customary practice. Purpose: The purpose of this dichotomy could be to systematise the ways in which people determine which rules to follow in plural legal settings (see chapter 4). Problem: There are myriad ways in which people resolve their disputes. Formal and informal law and forums coexist, complement and sometimes conflict with each other. 133 CHAPTER 05 If we assume that the normative order is to be strictly separated from the social order, both the disciplines and methods of law and sociology are also to be strictly separated. The opposite applies if we assume interdependence. If we aim to explain (Eklären) the causes of human behavior, we will choose experiments or quantitative methods; if we want to understand (Verstehen) its meaning we will more likely choose ethnographic methods such as participant observation. Whether law in the books and law in action deviate can be determined quantitatively. For example, a numerical evaluation of violations of Covid-19 rules can determine how many people adhere to the law. However, in order to find out why they do so, qualitative interviews are a more appropriate method. Purpose of dichotomies in socio-legal studies Dichotomies are also used in socio-legal studies because this form of research is located at the intersection of two or more disciplines that hold different understandings of terms like “law“, “society“ and “politics“. Dichotomies are a useful way of breaking down and ordering the challenges in interdisciplinary legal research along multiple axes. However, one should be aware that these presumptive juxtapositions have consequences for how research is conducted. DICHOTOMY AND ITS CONSEQUENCE FOR RESEARCH The framing as “law and society“ or “socio-legal“ suggests that these two are distinct spheres. The German tradition of sociology differs between the research objectives of explanation (Erklären) vs. understanding (Verstehen). How law manifests “in action” can be examined with qualitative or quantitative research methods. 01 02 03 134 Pitfalls of dichotomies Dichotomies can be useful tools, but they also have their pitfalls. Reality is complex and cannot be assigned to rigid categories. Dichotomies suggest a clear distinction where there is none. Thinking about the world in binary terms can have real-life consequences for groups, ideas or concepts assigned to one category or another. Binary constructions of supposed differences can lead to exclusions and inequalities. In gender studies, for example, it has been shown that thinking in terms of binaries is insufficient to account for gender fluidity. These binaries lead to exclusion of those who do not identify with these binary categories. CHAPTER 05 135 CHAPTER 05 CHAPTER 05 136 What dichotomies do you see in your work? The next exercise is designed to help you identify dichotomies for your research. It is called the “Sailboat exercise” and has been borrowed from the world of agile programming. Typically, a team uses it to look back and identify what aspects worked, and did not work in their project. In this adaptation, we would also like you to think retrospectively about a dichotomy that you have encountered in your work. Think about what role this dichotomy has played, what aspects have been useful in terms of using it as a theoretical tool, and what aspects have been challenging. For doing so, please: 1. Draw a sailboat that represents one dichotomy in your research. 2. How does the dichotomy help you move forward with your research? 3. How does the dichotomy hold you back? 4. What is causing the most issues? 5. Take one of the negative aspects you identified and turn it into a positive challenge of how you might work with this dichotomy in the future. EXERCISE: Scan this to find out more about the “Sailboat exercise”. 137 CHAPTER 05 Specifiying dichotomies Once you have identified a dichotomy relevant for your research, the next exercise can help you clarify the core of the problem by formulating a problem statement and a purpose statement. This exercise is called “Defining The Problem Statement” and is developed by the Applied Doctoral Center of the Northcentral University in the US. It is designed for formulating research questions and objectives but it can also be used for framing dichotomies. It can be conducted by yourself as well as in a class setting or with your peer group. Formulate a specific, evidencebased, real-life problem connected to your dichotomy. Reflect on its consequences of not solving the problem. Write a problem statement of up to 300 words that follows a three-part outline, that explains the context of the problem, the consequences of not addressing the problem, and ways in which there is a gap in the research. The purpose statement explains the contribution you aim to make. Address the problem and describe the methods available to solve it. EXERCISE: Problem statement Purpose statement Scan this to find out more about the exercise. CHAPTER 07 240 Representation: making voices visible As qualitative research is about exploring human experiences and perceptions, the actors’ point of view plays a central role. But what are ways to make the actors’ voice visible and represent them in your research? “Representation” means to understand and express the lived experience of research participants and their multiple realities (Davis, 2018. pp.756). The extent to which such representation is aspired in research depends on one’s epistemological position and methodological choice: • Representing actors’ point of view is key if one is interested in how research subjects understand their own actions. In anthropology, for example, supplying the actors’ point of view is the main ambition (de Sardan, 2015. pp.30). • The complete opposite applies to a doctrinal legal analysis: It rests precisely on the assumption that law is objective and seeks interpretations of law independent of individual views. • An interdisciplinary legal analysis typically moves somewhere between these two poles. 241 CHAPTER 07 There are multiple strategies through which you can ensure that research accurately and ethically represents the voice and agency of research participants (Davis, 2018. pp.756). • Using unstructured rather than structured methods to collect data (e.g. ethnography) allows research participants to express in their own language. • Using narrative analysis gives participants’ language full voice. • Using quotes of actors or vignettes of situations observed in your research report while leaving out interpretation, allows the participants’ voices to speak for themselves. • Member checks: share your findings with research participants and give them the chance to voice agreement or disagreement with your report. CHAPTER 07 242 Drafting a research proposal - Part II In the previous chapter, the final exercise was drafting a research proposal. Now finalize the draft by adding methods of data collection and analysis. Elaborate on your choice of method for data collection and analysis: • How would you collect the data? Why is this method appropriate and what are the challenges? • How would you analyze the data? Why? • How important is representing the voices of your research subjects according to your approach? How will you go about doing so? • What do you expect to find and how would you integrate your findings into your argument? • What will you do if the findings do not match your hypothesis? EXERCISE: 243 CHAPTER 07 NOTES / SKETCHES CHAPTER 07 244 NOTES / SKETCHES 245 CHAPTER 07 NOTES / SKETCHES CHAPTER 07 246 Sources COLLECTING DATA Argyrou, A. (2017) Making the Case for Case Studies in Empirical Legal Research. Utrecht Law Review 13: 95–113. Baxi, P. (2013). Public Secrets of Law: Rape Trials in India. Delhi: Oxford University Press. Bens, J. (2018) The courtroom as an affective arrangement: analysing atmospheres in courtroom ethnography. The Journal of Legal Pluralism and Unofficial Law 50: 336–355. Blatter, J. (2008) Case Study, in: Given, L. (Eds.), The SAGE Encyclopedia of Qualitative Research Methods. Los Angeles/London: SAGE, 68–72. Bogner, A., Littig, B. & Menz, W. (Eds.), (2009) Interviewing Experts. London: Palgrave Macmillan. Böning, A. (2017) Jura studieren –Eine explorative Untersuchung im Anschluss an Pierre Bourdieu. Weinheim: Beltz. Brinkmann, S. (2008) Interviewing, in: Given, L. (Eds.), The SAGE Encyclopedia of Qualitative Research Methods. Los Angeles/London: SAGE, 470–472. de Sardan, J.-P. O. (2015) Epistemology, Fieldwork, and Anthropology. Palgrave Macmillian: New York. Emerson, R. (1995) Writing Ethnographic Field Notes. Chicago: The University of Chicago Press. Epstein, L. & Martin, A. (2010) Quantitative Approaches to Empirical Legal Research, in: Cane, P. & Kritzer, H. (Eds.), The Oxford Handbook of Empirical Legal Research, Oxford: Oxford University Press, 926–948. Flick, U. (2017) The SAGE Qualitative Research Kit. London: SAGE. Gramatikov, M., Barendrecht, M., Malini Laxminarayan, Verdonschot, J.H., Klaming, L. & van Zeeland, C. (2010) A handbook for measuring the costs and quality of access to justice. Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems, Apeldoorn. 247 CHAPTER 07 Halliday, S. & Schmidt, P. (2009) Conducting Law and Society Research – Reflections on Methods and Prcatices. Cambridge: Cambridge University Press. Harvard Program on SurveyResearch Questionnaire Design Tip Sheet (2007) https://psr.iq.harvard.edu/files/psr/files/PSRQuestionnaireTipSheet_0.pdf. Julien, H. (2008), Survey Research, in: Given, L. (Eds.), The SAGE Encyclopedia of Qualitative Research Methods. Los Angeles/London: SAGE, 846–848. 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CHAPTER 08 256 Hazel Genn’s work on mapping justiciable problems, and identifying paths to justice of people in the United Kingdom has lead to the redesign of legal aid services, reprioritizing funding and increased support for legal education. (UCL, Paths to Justice 2021, Genn 1999) Communicating socio-legal reseach – changing the world? What is particular about socio-legal research is its potential to impact policy changes. Communicating socio-legal research results is therefore important and can have real-life consequences. 01 257 CHAPTER 08 Lina Khan’s work on antitrust in the role that big tech companies play as platforms and retailers, has resulted in a shift in competition law in which legal experts re-conceptualized the market power in a modern economy (Khan, 2016). 02 03 In her doctoral thesis, the German lawyer Susanne Moritz developed a legal argument that made the health-care-crisis in Germany constitutionally contestable. Her doctoral thesis became the basis of strategic litigation before the Federal Constitutional Court and put the issue on the political agenda (Moritz, 2013). Understanding Motivations Understanding Motivations Understanding Expectations Understanding Expectations Understanding Motivations CHAPTER 08 There can be several motivating factors for why each of us decides to communicate our research. Thinking through these factors can help understand how to communicate better. Take five minutes and think through some of these questions. Sketch out an emotion or feeling that immediately comes to mind when thinking about these questions. An important component of communicating research is to be able to ascertain what the factors are that motivate us to do research in the first place. In the next section, we introduce a couple of exercises to understand and explore your motivations to do research, and secondly to connect these motivations to the expectations of why someone would be interested in engaging with your research. These are both selfreflective exercises. Please answer and reflect upon: • Am I interested in doing research to make an impact? • Am I pursuing this project out of curiosity and interest? • Am I interested in fame? • Am I interested in increasing the visibility of my work and my community? Next think about why someone might be interested in your research. Ask yourself: • Do I know who my audience is? • Do I know why they are interested in my research? • Do I know what they will do with the research? • Do I know how to speak to different audiences, like colleagues, policy makers, legal experts and lay people? Expectations Motivation EXERCISE 259 CHAPTER 08 260 Motivation NOTES / SKETCHES 261 CHAPTER 08 Expectations NOTES / SKETCHES 262 Five Whys to communicating research Five whys is an exercise that allows you to trace cause- and-effect relationships underlying a problem (Serrat, 2009). You start with formulating a problem and reflect on what might have caused it. You then question your answer five times by asking “why”. As a first step in this exercise, begin by asking yourself what problem you face when communicating your research. Provide an answer followed by five whyquestions. Discuss this in groups of two. EXERCISE: 263 CHAPTER 08 Define the problem. Why is it happening? Why is that? Why is that? Why is that? Why is that? NOTES / SKETCHES CHAPTER 08 264 Where and how to communicate research? 265 CHAPTER 08 Media of Academic Communication Academic communication is about much more than writing books and journal articles. The means for communicating your research are manifold: CHAPTER 08 272 takes place. Language, impact factors, and indexed journals narrow the space of what information is considered to be scientific. Institutions also play in a role in terms of their policies towards open science, monitoring impact and recognition for staffing. In the next page we offer an illustration of the ways in which journals in the Global North and English-speaking countries dominated the production of legal knowledge. If you are interested in decolonizing your university library, have a look at this blog for some actionable tips, and speak to your librarian about what can be done. Academia as a Social Space Communication and power in academia Very often during a graduate degree, or in a PhD, challenges occur due to the imbalance in the relationship between the supervisor and the supervised. These can be on account of the fact that the supervisor exercises control regarding funding, disproportionate influence in the direction of the project, and a lack of freedom for students, influence in writing letters of recommendations, and a lack of institutional redressal for grievances (Gilis, 2021; Gorup and Laufer, 2020). Besides this immediate relationship, differences in power with regard to communication can also manifest in the ways in which academic publishing Scan this to read the article how to decolonise the library. Scan this to read the blog article on inequalities within the academic journal landscape. 273 CHAPTER 08 Scopus Journals: 36,777 Web of Science Core Collection Journals: 22,200 Directory of Open Access Journals: 15,000 Hosted by Web of Science Erudit Journals: 243 SciELO journals: 1785 Russian Science Citation Index Journals: 770 KCI Korean Journal Database: 2500 Chinese Science Citation Database Journals: 1200 Persée Journals: 330 Cairne Info: 268 Serbian Citattion Index Journals: 267 African journals online: 526 IBZ online (English. German): 7000 Medline: 5271 ENGLISH OTHER LANGUAGES CHAPTER 08 274 Mental health Graduate studies and academia in general can be a challenging place, especially for one’s mental health. Whether this is in relation to managing burnouts or dealing with a lack of confidence it is important to get support and seek out communities that you can connect with and trust. Some of the strategies mentioned below are drawn from Forrester (2021),Gewin (2021) and Inouye (2021). CHAPTER 08 Seek out support through formal and informal groups and find a community. Take time out, and do things that you enjoy. Prioritise mental health and seek communities that normalize it. Seek communities that share failures. Compare with yourself, rather than with others. These tips are easier said than done, and in the next section we will discussion in greater detail how they could be achieved. 275 CHAPTER 08 276 WRITING WORK GROUPS Groups who share similar interests in which you can write, read or discuss about your projects. DOCTORAL COLLOQUIUMS A forum where PhD students can present their work in progress and expect to receive fair, and constructive feedback. FEEDBACK TEAM A couple of colleagues who can lend you peer support at an informal, spontaneous level. Ideas for creating research and welfare communities CONFERENCES Conferences can be a good way to meet people beyond your immediate scholarly circle and your university. MENTORS A couple of informal senior mentors to whom you can share research as well as welfare concerns. SHARING CIRCLE A space where you can share and discuss the challenges of academia beyond your specific PhD research. See the exercise later in this chapter on the CV of Failures. The mental and social challenges of academia can be addressed by creating or finding networks for mutual support: 277 CHAPTER 08 Peer-to-peer support: writing groups Scientific work is autonomous and flexible. However, this has a flip side: being your own boss, you are the one who controls and celebrates your progress. In order to keep track of your writing progress, a writing group can help: they nudge you to set writing goals and monitor your progress (Silvia, 2007. pp.49). Setting up a writing group: Get a group of peers (three to five are recommended) and arrange a fixed time of the week in which you meet and discuss your weekly writing goals. Start each session with a check-in: how are you today? Then formulate your writing goals for the week. Set concrete, short-term goals. Be as specific as you can: How many pages do you want to write? How many articles do you want to read? For how many hours do you want to work? The task of your group is to hold you accountable for what you aim to achieve. In the next meeting, you evaluate together: Did you achieve your writing goals? Why did you fail? Where your goals too big? CHAPTER 08 278 Writing apart but together Writing Marathon Virtual Office Once your project is past the initial phase, and you’ve done a lot of research and reading, it is time to produce the text. A good technique for this is a writing marathon. Plan the marathon together with your peers: set a big writing goal (for example, one chapter of your dissertation) and determine the time period. Prepare a writing plan and specify exactly how many pages you want to write (in total, per week or per day). Measure and celebrate your writing successes together with your peers (Wolfsberger, 2016. pp.181). Scientific writing can be lonely. One solution to that are writing sessions in a virtual office. To create a virtual office, arrange a meeting with your peers on a digital platform like Zoom. Determine the time frame of the meeting before your start. To schedule regular breaks, you can work with Pomodoros: write for 25 minutes, take a 5 minute break, repeat. For one meeting, four Pomodoros (2 hours) are suitable. You start the meeting with a short checkin: How are you today? What are your writing goals for this session? Then you get started. While you write, keep the videos switched on, but turn off the mics. At the end of the session, you turn the mics on and check with your peers: Did you achieve your goals? Why or why not? CHAPTER 08 Person 1: Ch 1 Person 2: Ch 2 Person 3: Ch 3 Person 4: Ch 4 Your Research Project Integrating feedback: your feedback team Peer groups can provide more than mental support in the writing process because they can also give feedback on the content. Especially for larger research projects, it can be difficult to find one person who has the capacity to read the whole book and give feedback. One option is to put together your own feedback team. This idea was suggested to us by academic coach Dr. Sabine Blackmore. HOW-TO: Divide up the chapters of your project or book, have different people read different parts and let them give you pooled feedback. When doing this, it is important that the feedback is provided in one session by all members of your feedback team, so that your peers can discuss your work with each other in front of you. CHAPTER 08 280 Building trust: the CV of failure Occasionally, we will be confronted by paper rejections, a grant application that did not work out, or an unsuccessful job application. These results can be hugely demotivating and dispiriting. Melanie Stefan, in an article in Nature (2010), suggest to deal with this by creating a CV of failures: “Compile an ‘alternative’ CV of failures. Log every unsuccessful application, refused grant proposal and rejected paper. Don’t dwell on it for hours, just keep a running, up-to-date tally. If you dare — and can afford to — make it public. It will be six times as long as your normal CV. It will probably be utterly depressing at first sight. But it will remind you of the missing truths, some of the essential parts of what it means to be a scientist — and it might inspire a colleague to shake off a rejection and start again.“ Johannes Haushofer (2016) in his CV of failures, describes: “Most of what I try fails, but these failures are often invisible, while the successes are visible. I have noticed that this sometimes gives others the impression that most things work out for me. As a result, they are more likely to attribute their own failures to themselves, rather than the fact that the world is stochastic,applications are crapshoots, and selection committees and referees have bad days. This CV of Failures is an attempt to balance the record and provide some perspective“ In this exercise, consider making a CV of failures in order to normalize things that don’t work out. 281 CV of Failures EDUCATION I NEVER GOT A LITTLE BIT ABOUT MYSELF AWARDS & FELLOWSHIPS I DIDN’T GET JOBS I DIDN’T GET EXTRACURRICULAR FAILURES LACK OF SKILLS CHAPTER 08 288