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Citation: 15 Law & Soc. Inquiry 135 1990

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B. and on the politics of interpretive research connected with these readings. "The Ethnography of Law. See Boaventura de Sousa Santos. 2. aimed at comparison and clarification. "The Differing Realms of the Law. we begin with a recent paper by David Trubek and John Esser. tend to "domesticate" the new.. David M. Patricia Ewick. See Bohannan." Special Publication. 1982. legal ideology.Interpretive Sociolegal Research Christine B. 3 In this essay we focus on interpretivism as a developing project in sociolegal research. University of Wisconsin.D. or Pandora's Box?" 14 Law & Soc. Inquiry 3 (1989). David Trubek." 14 Law & Soc. The authors appreciate the helpful comments several people made on an earlier draft. Ph. Program. and Sally Merry. 67 Am.324. or Pandora's Box.F.2 or in Boa Santos's words "doubly institutionalize" a developing project by reading the order of a conventional analysis into the emergent order appearing in the interstices of new scholarly work. and knowledge as politics. we discuss three aspects of interpretive research that are at the center of current debates in sociolegal theory: meaning construction and the dynamics of power. University of California. Ph. and results to earlier approaches. 4. Nader.' Such efforts. Trubek & John Esser. Lynn Mather. Res. Peter Fitzpatrick. Harrington is a professor in the Department of Politics at New York University. "Beyond the Study of 'Law and Society. Inquiry 157 (1989). Anthropologist 33 (1964)." inL. 1970. Alan Hunt. In particular their thanks to John Brigham. Santos uses Paul Bohannan's concept of double institutionalization. "'Critical Empiricism' in American Legal Studies. The challenge for the new is not to be cast as part of the old by efforts that assimilate its methods. ed. J. Program. Id 3. In particular. 1. goals. on different understandings of power. Austin Sarat. ©1990 American Bar Foundation 135 . Madison.'" 1986 A. To illuminate the struggles over these points and at the same time illustrate the process of domestication."'4 Their paper lays out a treatment of ideology and politics Christine B.D. Berkeley. "Room for Manoeuver: Paradox. "'Critical Empiricism' in American Legal Studies: Paradox. Our discussion focuses on different readings of ideology. Harrington and Barbara Yngvesson A major challenge for scholars seeking new directions in sociolegal research is the persistence of old paradigms and assumptions about law.David Nelken. Barbara Yngvesson is professor of anthropology at Hampshire College.

tied to particular social and historical situations.at 25. and empirical research.' [and] more 'sociologocial. interpretive analysis of social practices)." they argue by contrast. using the wofk of the Amherst Seminar on Legal Ideology and Legal Processes to discuss this tension.' more 'theoretical. whose definition of empirical research they use. Id. and see Gary Peller. uses "standard social science methods to provide valid descriptions of the historical and contingent practices the new paradigm [the interpretive turn] identifies. On the other hand. Id. which involves the use of observation for the purpose of providing an account of the social world. at 36-37."' 12 If inter5. at 12." 73 CaL L Rev. ' 6 They call this tradition "universal scientism." maintaining that it demands that accounts be more " 'accurate. and it is contingent. should be distinguished." Ideology is implicit. For them. Id. Id. at 17. Inquiry at 36."' 0 a "web of social meaning" described as "ideology" by Trubek and Esser. 9. "CRITICAL EMPIRICISM" AND SCIENCE Trubek and Esser focus on the tension between "empiricism" 5 and critical research. 8. Trubek and Esser interchange the words "empiricism" and "empirical.' "7 Trubek and Esser contrast this description of science with critical research. Id.' less 'narrow. 12. 11. Trubek and Esser see a tension between interpretive and empirical research."9 Similarly. such as the interrogation of legal values (particularly claims about the centrality and neutrality of law). Their definition of empirical research seems to incorporate both meanings: "careful observation of the external world for the purpose of providing valid descriptions. 7. and "critical" requires a vision of "transformative politics. "The Metaphysics of American Law. They describe the work of the seminar as a project in "critical empiricism" and draw on published work by members of this group to explore how the interpretive turn in recent sociolegal work is constrained by a continued adherence to the scientific tradition-a tradition that values "valid descriptions of the world that can be used instrumentally for whatever purposes individuals find useful. values "an objectivist discourse and an apolitical stance." id.' more 'complete. . 10. 14 Law & Soc. 1159 (1985). I. Trubek & Esser. "critical" implies normative concerns. interpretive research assumes that actors are embedded in "a collectively held fabric of social relations. rather than explicit (it must be uncovered through the careful. 6. a theory that all knowledge and meaning are dependent on experience." Empiricism."8 "Empirical. interpretive work. Id. according to Trubek and Esser. at 39.136 LAW AND SOCIAL INQUIRY that provides a basis for our broader discussion of interpretive work in the second half of this essay. On the one hand.

at 44. How might these tensions be resolved? Trubek and Esser suggest that interpretive work has "radical implications . Significantly. Id. let alone origins. but is also closely linked to earlier discussions of transformative politics by David Trubek. The premises that inform Trubek and Esser's selection and interpretation of particular passages from writings by seminar participants are developed in Trubek's statement of "critical empiricism" as his own project. at 40. as we have struggled with the meaning and implications of an interpretive approach. Trubek and Esser argue. it is in debates generated by these differences that we may come to a better understanding of these complex practices. Susan S. it is necessary to look back at an earlier article by David Trubek where he more clearly lays out his understanding of ideology. 15. or at least overlapping perspectives." 10 Law & Pol'y 97 (1988). however. "Where the Action Is: Critical Legal Studies and Empiricism. see Trubek & Esser. 14 Law & Soc. 13. has disavowed objectivity and neutrality in order to "advance a particular ideology" and "explicitly champion" the political agenda of a marginalized group.Interpretive Sociolegal Research pretive scholars were truly critical." 36 Stan. they claim. and transformative politics. too. significant differences between our approach to interpretive research 7 and the way Trubek and Esser explain their project in "critical empiricism.' To understand Trubek and Esser's "critical empiricism" project and how it informs their reading of interpretive social science. however." 21 Law & Soc'y Rev. L Rev. for sociolegal scholars' selfunderstanding of their own knowledge production" but that only a few members of the Amherst seminar have worked out these implications in their published writings. they would disavow "universal scientism" (a term they associate with social science methodology in general and with neo-Marxist theory and anthropological method in particular) since.' 3 No one in the seminar. 137 . interpretive work. is a contingent practice. 14. Trubek and Esser use the words of others 16 to represent this perspective and then attribute it more generally to the Amherst seminar." we confront a rather complex task of unraveling what at times appear to be the aspirations of Trubek's own project. In attempting to disentangle the meaning. We are social scientists (a political scientist and an anthropologist) who do interpretive research. 575 (1984).3. Silbey. this. and common ground. 14 The implications of this argument are that interpretive work should be informed by a politics that moves beyond self-consciousness of 5 its own ideological stance to an awareness of its empirical effects.. Id. of "critical empiricism. on "where the action is.." There are. some of these differences have also emerged within the Amherst seminar. "The Pull of the Policy Audience. Trubek and Esser's argument is grounded in references to Austin Sarat & Susan S. 17. Inquiry at 5 n. "Critical Traditions in Law and Society Re- search. Indeed. 16. 165 (1987). Silbey & Austin Sarat. We are also participants in the Amherst seminar." Over the years.

Inquiry at 30. "Practice" and "process. which in turn produces ideological transformation. Id. See Trubek & Esser.' 8 Drawing on statements by seminar members' 9 Trubek and Esser define ideology as a web of social meaning. L Rev. 14 Law & Soc. 20. are the terms used in the seminar for the meeting and clash23 ing of ideologies. Id."' 2' It involves "implicit schemes of response. and (3) the politics of interpretive social science. ' 24 Ideologies "clash" and "inter18. 31. use the perspectives. Inquiry at 17 n. Id. 22 Even though ideologies are constraining. we discuss problems which the concept of "critical empiricism" poses for understanding the methods and politics of interpretive analysis. 14 Law & Soc. 23. Id. This analysis of domestication allows us to move beyond the confines of "critical empiricism" to central issues in interpretive sociolegal research. at 18. they are "open to adaptation" when actors are confronted with new situations. at 17. See especially the discussion of ideas as constituting society at 589 and of transformative politics as changing consciousness at 591. disposition. Ethnologist 253 (1986).138 LAW AND SOCIAL INQUIRY I1. or habit" which are "applied" in changing situations. Ideology We begin by examining Trubek and Esser's discussion of the way ideology is understood in the work of the seminar in order to show the influence of Trubek's earlier work on his essay with Esser. (2) interpretive analysis and the construction of meaning. Ideologies are "systems of meaning" that people struggle over in an effort to persuade others to "take on your ideology as their own. Trubek. Change is "especially evident" when ideologies "clash. but which constrain the range of activity that can take place. 19. Trubek & Esser. 22. an "accidental congery of images and metaphors" 0 that " 'appropriates' the individual so that without self-conscious reflection the actor comes to desire the ends. 21." 13 Am. Our argument is that Trubek and Esser's "critical empiricism" project domesticates three aspects of interpretive research: (1) the location of ideology in social relations. IDEOLOGY AND PRACTICE IN INTERPRETIVE RESEARCH In what follows." according to Trubek and Esser. . where they cite a statement by Sally Merry." resulting in confusion. What is striking about Trubek and Esser's account is the degree to which ideology is disembodied from social relations. and apply the rationality that makes up the social fabric. at 592-600. 36 Stan. 24. "Everyday Understandings of the Law in Working-Class America.. at 20.

" '2 8 However. Audience." 27 Because Trubek and Esser's "critical empiricism" project retains the old division within positivist epistemology between "ideas" and "action. at 30. 14 Law & Soc. in their words. 775 (1980-81). 30. coerce. Id. Id. Trubek and Esser collapse these different approaches into a common reading of ideology in Marxist theory. Trubek and Esser refer to an article by Lynn Mather & Barbara Yngvesson. they remain trou'2 9 bled by the presences of a " 'material' account of ideological practice." Ideologies "originate" in spheres such as "the legal system" and "the community. they state that neo-Marxist theory "loosens the tight structuralist assumption of a deep and unalterable logic of social laws. none of this terminology (including the concept of ideology) is used by these two authors. The narrower meaning of ideology they insist on obscures the theoretical differences between structuralist and poststructuralist studies of legal ideology on the one hand. on the other." ' 25. The view that ideology is separate from social relations also colors Trubek and Esser's analysis of how structuralist and poststructuralist theory has shaped interpretive research. '26 Here. 30 They continue to associate a "materialist" theory of legal ideology with the "program of universal scientism [which] emphasiz[es] the need to describe the structure of economic and political institutions in order to 'explain' how ideologies 3 function. Trubek & Esser.at 27. They briefly note the existence of some debate and revision within Marxist structuralism. 31. Id. "Language. at 23." they are "brought together" and "worked together" in processes such as the handling of disputes. 14 Law & Soc. Id. and the Transformation of Disputes. However." it insists on a much narrower field of meaning for the term "ideology" than is used in contemporary interpretive work. 36 Stan. at 604." 25 and may be "carried back" by those involved in an exchange with equally disembodied (and dichotomized) spheres such as "society" and "law. In this discussion. Also see Trubek. Id. 29." 15 Law & Soc'y Rev. 28. considers ideology "as a relatively stable and definable" set of categories which can be separated from the political and economic institutions it is associated with. Inquiry at 20. Similarly their conception of power is close to that found in the legal impact model: "power is the ability to persuade. Trubek and Esser cast the critical concepts of interpretive sociolegal research into the familiar law and society paradigm: ideology is separated from social relations and is seen as having effects on society. Inquiry at 23-24. one that. Trubek and Esser's treatment of Marxism and interpretive research is difficult 139 . 27. and conflates neo-Marxist critiques of determinism and orthodox Marxist approaches. Trubek & Esser.Interpretive Sociolegal Research act with one another. or otherwise cause other actors to take on your ideology as their own. For example. L Rev. then they are " 'returned'" to the legal system and the community "in their new form. 26.

"The Sociological Concept of Law. doctrine. Gordon. L Rev.140 LAW AND SOCIAL INQUIRY What is significant. about interpretive studies of legal ideology is domesticated by the narrow definition of ideology in Trubek and Esser's "critical empiricism" project. see John Brigham & Christine B." 14 Law & Soc'y Rev. ideas. Generally see Maureen Cain." 10 J. 32. 1978). 34. Roger Cotterrell. Trubek. consciousness) "constitute" society (social relations) through "practices" that sit "between" these dual spheres. "Realism and Its Consequences: An Inquiry into Contemporary Sociolegal Research. and institutions shape political possibilities. and Trubek & Esser. "The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law. Power. Trubek and Esser are not always as dualistic as they appear in the passages cited here." For a structural Marxist critique of orthodox determinism see Louis Althusser." 17 Int'l J. Socialism (London: Verso. 11 (1985). Thus they note that anthropology is used by members of the seminar "to identify multiple. moving away from the positivist distinction between ideas and experience. if not defining. ed.Sociology L 41 (1989). disembodied ideologies (images. Trubek." To speak of the constitutive dimension of ideology is to examine legal ideology as a form of power that also creates a peculiar kind of world." 19 Law & Soc'y Rev. Inquiry at 23.Sociology L 7 (1979). 14 Law & Soc. 35. localized. 33. and the ongoing debate within critical legal studies between what the lawyers call "indeterminacy" and "determinacy. acts impose ideologies or persuade others to take them on as "voluntary. such as the conception of structure in interpretive research." with "practice" or "process" located uneasily between the two. at 30). From this angle a "material" or constitutive theory of law is equated with "determinism" and "universal science. also fashionable among deconstructionists." in G. the anthropological influence in the seminar explains ideology by "contextualizing" it (id." The materialist conception of ideology34 in interpretive work rejects these dualistic ways of framing the sociolegal world. For Marx (London: New Left Books. neo-Marxist and structuralist approaches are problematic because Trubek and Esser insist on separating political and economic structures from ideology. Recent examples of work on a constitutive approach to law include Robert Gordon's study of lawyer's work as ideology views "every legal practice-from drafting a complaint for simple debt to writing a constitution-[as] mak[ing] a contribution to building a general ideological scheme or political language out of such explaining and rationalizing conceptions" (see Robert W. 115 (1979). Legal processes. the revisions on materialist theory within the Marxist tradition. 36 Stan.L & Soc'y 241 (1983). at 589." It seem clear.. Harrington. 36 Stan." 35 Interpretive sociolegal inquiry is based on an to unpack because here "critical empiricism" lumps complex problems together.g. at 619-21." 4 Int'l J. This more complex understanding of power and of ideology (which is closer to our own approach. consent and coercion. for a discussion of Stewart Macaulay. however.3 2 By their account. "Lawyers and Consumer Protection Law. discussed below) emerges most clearly in discussions of specific ethnographic work (see e. 1977). For them. In such a world. 1870-1920. "Legal Thought and Legal Practice in the Age of American Enterprise. Maureen Cain's analyses of work . A constitutive concept of law differs from the liberal-legal conception in that law is understood as having the power to frame politics. State. and molecular forms of both power and resistance" and that unlike Trubek and Esser's characterization of ideology in Marxist thought. and between subjective and objective "realities.. that Trubek embraces the indeterminacy position. specifically. Professional Ideologies in America 72 (Chapel Hill: University of North Carolina Press 1983)). Gelson. and Nicos Poulantzas. L Rev. "The General Practice Lawyer and the Client: Towards a Radical Conception. a liberal-legal world constituted as separate spheres of "law" and "community. and Alan Hunt.

transcending the opposition usually drawn between sense relations and power relations. and thereby of constituting ideologically new and emergent material forms" (see Maureen Cain."' 39 Bordieu argues that analysis must attend to this "double reality of intrinsically equivoca4 ambiguous conduct" and "hold together what holds together in practice" rather than creating a "self-mystifying demystification" through the creation of what he terms "a naively dualistic representation of the relationship be40 tween practice and ideology. Harrington & Sally Merry. emphasis in original. 141 . and Christine B. ideologically constituted.. gratitude." 40 TELOS 123 (1979). in turn. 1977) ("Bourdieu. gifts." 3 6 These concepts join what are traditionally seen as separate material and symbolic spheres by linking economic and affective relations to explain the exercise of power in domination." The concept of symbolic violence. the violence of credit. at 237 n. Earlier sources on constitutive theory include Eugene Genovese. This question draws attention to practices of law that are taken for granted. Id. communication and domination.. "The General Practice Lawyer and the Client: Towards a Radical Conception. Also see Christine B. Harrington. For example. is only exerted through the communication in which it is disguised. obligation. and is not so much undergone as chosen. 37. Rage. confidence. in Barbara Yngvesson's work this concept is used to in civil courts as "conceptive ideological work: using old rules to generate new ways of thinking." 4 Int'l J. emphasis in original. Id. Outline of a Theory of Practice"). A contemporary example of social theory that challenges these dualistic representations is Pierre Bourdieu's analysis of "symbolic capital" and "symbolic violence. 1969). The World the Slaveholders Made (New York: Vintage Books. Pierre Bourdieu. and strategies of movement activity as practice" (see John Brigham. which suggests how domination is created and maintained through everyday relations. at 191. 39. purposes. 40. "Ideological Produc- tion: The Making of Community Mediation. of making sense of. '38 It is the "gentle. Sociology L 13 (1983)). at 179. at 192. "Regulatory Reform: Creating Gaps and Making Markets. 709 (1988). personal loyalty. Id. Symbolic capital and symbolic violence create and maintain "a lasting hold over someone" in "euphemized" form. Id." 22 Law & Soc'y Rev. 36. Legal forms are evident in the language. "Right. 37 "Symbolic violence is that form of domination which. piety. "Law-Making as Praxis. Am PoliticalDevelopment 306 (1987)." 10 Law & Policy 293 (1988). enables us to see the way ideology is produced in relations that are. practices that make law appear to stand apart from social relations and to be of a different and separate order. and Remedy: Forms of Law in Political Discourse. 47. 38. and Karl Klare.. and John Brigham's research on social movements as "constituted in legal terms when they see the world in those terms and organize themselves accordingly." 2 Studs.Interpretive Sociolegal Research interest in questions about the way law gets separated from material lifefrom its own role in creating the relations of material life. Outline of a Theory of Practice 179. 191 (Cambridge: Cambridge University Press. which is never recognized as such. invisible form of violence. hospitality. rather than a continuous part of social practice.

and thus creating a two-dimensional world. at 730. invented. Harrington & Sally Merry. The ideology of relational complaints as "garbage" and of property matters as "crime" is reproduced in distinctions drawn by the court clerk between serious and trivial events." or "lovers' quarrel" are produced in these practices. Rather. 43. Law as ideology is not a sphere from which meanings emerge and to which meanings are carried back. placing ideology "outside" of social relations. The Court." "family trouble." 43 just as the process of handling complaints by the court clerk becomes a site for the ideological production of "garbage" in the ongoing involvement of the clerk with trouble that "won't go away. as he negotiates the withdrawal and dismissal of complaints brought by citizens. 42 The mediator selection process becomes "a site for the ideological production of 'neutrality' in the form of a detached stance." 22 Law & Soc'y Rev." "neighborhood disturbance. law is found. Dismissals reproduce the separate spheres of community (held together by ongoing ties) and law (a sphere defined in terms of rights and entitlement).142 LAW AND SOCIAL INQUIRY analyze strategies of power in criminal complaint hearings." "the state." 22 Law & Soc'y Rev." "law") is given and constitutes the 41. Christine B. even as it empowers citizens as agents who "choose. "Making Law at the Doorway: The Clerk. It is through this relationship that the dependence of citizens on the court is created (and the status of the clerk as the appropriate official for handling "garbage" is produced). 709 (1988). Barbara Yngvesson. 42. and made in a variety of locations (mediation sessions. Key symbols such as "neutrality. clerks' hearings. and practice is not a process separable from law. but are carried out through the "gentle violence" of dismissals "chosen" by the citizens themselves in the context of an ongoing relation with the court clerk. Id. 409 (1988). classrooms). and The Construction of Community in a New England Town. lawyers' offices. Modern mechanisms of power operate by constructing the distinction between ideology and practice." "the symbolic. one part of which ("culture. 41 In a related argument. welfare hearings." and empowers the clerk as an official who maintains the boundaries of law. "Ideological Production: The Making of Community Mediation." "community. Christine Harrington and Sally Merry show how the concept of mediator neutrality and detachment emerges in diverse practices of selecting mediators who unself-consciously "produce" a nonjudgmental stance in their approach to handling conflict." These studies point to the differences between an analysis of ideology as consciousness and an analysis of ideology as practice and suggests the political significance of this move in decentering the role of law. rather than simply imposed by legal authorities or "brought into contact with one another" through the agency of legal officials. social movements. . through a variety of practices which are themselves ideological.

Culture tends to be given an "existence or nature apart from ." as a political artifact of early legal realism and examines these courts as sites of law. [its] repeated and yet always differing performances.Interpretive Sociolegal Research other. 22 Law & Soc'y Rev.. Sociology L at 46-50 (cited in note 35). and also see Brigham & Harrington. see Harrington & Merry. Steven Lukes. most integral and continuously at 46 work within social and economic practices." it is difficult to avoid a determinist position in this kind of analysis. Inquiry at 24. See John Brigham. outside personhood." 45 Yet the moment when power appears most external it has "in fact become most internal. . Id. Sci. implying that there is a more or less "real" center of law. Baratz. particularly "the upper court myth. their position reintroduces the law and society perspective. 1989)." 57 Am. 47.50 44." Id. and locating power outside the relational contexts in which it operates. at 23-24. The move in recent work to a focus on sites rather than on margins or centers is intended as a move away from assumptions about core and periphery. 1982). 44 While the givens may "clash" or "interact. 49 To the extent that Trubek and Esser's "critical empiricism" project does this. outside time. it is assumed to retain a separate nature as an unphysical 'structure' or 'frame of meaning. Interpretive research on appellate courts challenges this hierarchy. Dreyfus & P.' The distinction between particular practices and their structure is problematic not simply because it is not shared by other traditions but because . Mitchell makes the argument that some interpretive analyses. 1974). Discipline and Punish: The Birth of the Prison (New York: Pantheon. distancing law from the sites where it is produced. 49. 45. both as constrainers and the constrained. "The Two Faces of Power. outside community. 1977). 48.. outside events. 709 (cited in note 35). The Cult of the Court (Philadelphia: Temple University Press. While official power is often more studied and even at times more obvious than power that is not officially recognized. 47 officials are seen as participants in power relations. However much cultural text 'finds articulation' in social practices. S. "Everyday Metaphors of Power" (unpublished paper. interpretive analysis of power at work in everyday practices examines how common-sense understandings are forged. "The Subject and Power. 50. For a discussion of relational conceptions of power see Peter Bachrach & M." In this relational concept of power. 947 (1962)." or when disputes in "lower" courts and mediation programs are labeled "petty. because it locates the power of law "outside actuality. L. eds. When sites for the production of law are classified as "low" or "trivial. Rabinow. 14 Law & Soc. 1987). Rev. The authority of official power is produced not simply within the legal system but in local interpretive communities where the common sense of law in society is created. it is precisely the effect intro- duced by modern mechanisms of power. Pol. Power: A Radical View (London: Macmillan Press. 17 Int'l J. Trubek & Esser. Challenging conventional scholarship that retains legal hierarchies and expanding the location of law not only decenters the conventional hierarchy of legal form. .. Timothy Mitchell. Id. a point that is based on Michel Foucault. at 35." in H. 46. without losing sight of the power relations that shape meanings in these settings. and Michel Foucault. at 38. particularly those by anthropologists which locate culture in "a textual structure" fall into this same problem. Michel Foucault: Beyond Structuralism and Hermeneutics (Chicago: University of Chicago Press. but also challenges the recent revival of political pluralism in social 143 ." 4 8 a hierarchy of law is created.

The superficial discussion of anthropology as science. and Brigham & Harrington." 22 Law & Soc'y Rev. 53. see Christine B. however. and an apolitical stance). eds. gets separated from material life-from their own role in creating the relations of material life. For critiques of this position see Alan Hunt. such as law. 1983). "The Critique of Law: What is 'Critical' about Critical Legal Theory. As discussed above. interpretive sociolegal research building on constitutive theory is interested in how modern forms of power. at 37. Marjorie Shostak. Silbey. James Clifford. Marcus. Sociology L 41.144 LAW AND SOCIAL INQUIRY Interpretive Analysis and the Construction of Meaning Trubek and Esser's reading of ideology as a realm of consciousness distinct from practice parallels their reading of interpretive method as a realm of science distinct from politics. and the explicit identification of science with objectivity and universality... 963 (1988). specifically. E. "Moving from Integrative to Constitutive Theories of Law: Comment on Itzkowitz. in interpretive approaches to fieldwork. eds." 10 Law & Policy 97 (1988). the problematic outcome of intersubjective dialogue. eds. Inquiry at 34-40." in J. 52. "The Pull of the Policy Audience. Id.. and for an example of sociolegal work that embraces Rorty's position see Austin Sarat & Susan S. 14 Law & Soc. Writing Culture"). Clifford & G. . '5 4 Clifford uses Marjorie Shostak's ethnographic study of a !Kung woman 55 to illustrate the inherent tension in ethnographic work between scientific discourse theory-a revival best captured by the "many voices" view of "legal discourse" and the embrace of Richard Rorty's philosophical relativism. Trubek & Esser. objectivity. not only masks the complexity of the scientific enterprise but obscures the ambiguity and contradiction inherent in anthropological methods such as participant observation and. Contrast. Hunt. 54. If we limit the interpretive project to simply documenting "challenging voices" or the "multi-vocality of law. for example. Critical Legal Studies (New York: Basil Blackwell. 51. 51 They provide only minimal discussion of what "anthropological procedures" entail. "On Ethnography Allegory. and projection" and interpretive accounts as "just one level of allegory. Philosophy and the Mirror of Nature (Princeton." in P.: Princeton University Press. 1979). 1986) ("Clifford & Marcus. Harrington. Nisa: The Life and Words of a !Kung Woman (New York: Random House. Writing Culture: The Politicsand Poetics of Ethnography 109 (Berkeley: University of California Press. Id. 17 Int'l. see Richard Rorty. Trubek and Esser's characterization of anthropological procedure as providing "accurate description" and as "advanc[ing] scientific knowledge" 52 with James Clifford's description of anthropological knowledge as "contingent.." we will indeed fall back into the relativism of "descriptive" legal pluralism-a relativism which depoliticizes law by finding it "everywhere"-and implicitly embraces the politics of that epistemology. 1987). 55. Anthropological methods are specifically identified by Trubek and Esser as the locus of "universal scientism" (a concept they identify with accuracy. translation. Fitzpatrick & A. NJ."'5 3 Referring to "the discipline's impossible attempt to fuse objective and subjective practices. and no discussion of what the interpretive method in ethnographic research involves.

See James Clifford. Renato Rosaldo." yet where the anthropologist's position "behind and above the native. being an out- sider. 58.5 6 Vincent Crapanzano develops a similar theme in his examination of Clifford Geertz's study of the Balinese cockfight. Vincent Crapanzano. 62 and the engagement necessary for repositioning has been fundamental to the methodology of participant observation from its earliest practice in the work of ethnographers such as Malinowski. Tex4 Play and Story: The Construction and Reconstruction of Self and Society. This same tension between distance and engagement is built into all ethnographic studies of law.. M. Writing Culture 74 ("Crapanzano. "Grief and a Headhunter's Rage. 59. "Deep Play: Notes on a Balinese Cockfight.. the authority of the anthropologist to portray the world of others is contingent on dialogue and engagement with the particular. "Hermes' Dilemma" 74.. and Mead. 60. at 104." in C.. to "repositioning" and thus analyses "always are incomplete. 'Hermes' Dilemma' ")." 61 The tension between distance. 61. Id. Outline of a Theory of Practiceat 1 (cited in note 36). Clifford. One begins with a set of questions and subsequently revises them in the course of inquiry. 145 . Rosaldo describes "routine interpretive procedure" as a methodology in which "ethnographers reposition themselves as they go about understanding other cultures.." in E. 63. ed. This issue is central to an understanding of how accounts of the sociolegal world are produced. eds." 60 There are limits. and association with a neocolonial regime can influence what one learns. 63 and undermines claims that ethnography and natural science have a similar methodological stance." In other words. 1973). 57.Interpretive Sociolegal Research and intersubjective dialogue. Thus. ed." in Clifford & Marcus. as a positioned subject. ed. "[t]he ethnographer. Bruner. rather than on distance and generalization. Clifford Geertz. Radcliffe-Brown. ethnographers emerge from fieldwork with a different set of questions than those they posed on initial entry. gender. The Predicament of Culture 26 (Cambridge: Harvard University Press. As Rosaldo has noted. how age. "Hermes' Dilemma: The Masking of Subversion in Ethnographic Description. however. and is explicitly acknowledged in works as diverse as 56. hidden but at the top of the hierarchy of understanding"' 58 undercuts the capacity to present a view other than that of an outsider and (in consequence) the authority to re-present "the Balinese cockfight. "On Ethnographic Authority. Bourdieu. Consider for example. inherent in the anthropologist's "objective situation" as outsider. The Interpretationof Cultures 412 (New York: Basic Books. Crapanzano. 1988). Id. can grasp certain ethnographic phenomena better than others . at 183. Id." ' 59 At the same time.. 62. at 182.57 He illustrates the contradictions in a text that purports to present "the native point of view.." in J. 1983). 178 Proceedings of the American Ethnological Society 192-93 (Washington: American Ethnological Society. Geertz.

14 Law & Soc. Trubek & Esser. which can be used to advance [the] ." in 2 D. however. for a discussion of the importance of attending to local interpretation and responses for an understanding of acts and events. 66. Marcus & Michael M. 1979). Black. focused on an analysis of the relational nature of power and the production of ideology in power relations. "From the Door of His Tent: The Fieldworker and the Inquisitor. 67. politics" of "a specific marginalized group" (at 44).. Its authority is contingent on engagement. E. Fischer. and George E. W. Toward a General Theory of Social Control 257 (New York: Academic Press. the interpretive method is no less dialectical than the product of the method itself. 1986) ("Marcus & Fischer. is itself embedded in these relations and its product is shaped in this context. Sullivan. They suggest that only in taking such a stance is it possible to move beyond "partial critique" and "partial adaptation of an interpretist stance" (at 45). Trubek and Esser suggest that "a politically self-conscious practice of knowledge construction" 67 involves scholars in work that gives value to victims and introduces marginal voices in accounts of the sociolegal world. who discusses Evans-Pritchard's relationship with the Nuer." "disputes. by definition. Mitchell. In sum. for a discussion of "point of view" in ethnographic studies of law. . and see Renato Rosaldo.Y. Greenhouse. Trubek and Esser describe several approaches to critical research which they attribute to various members of the seminar (at 41-44). Evans-Pritchard. is the role of power in the production of an ethnographic account." and "outcomes" on the material. The Politicsof Interpretation(Chicago: University of Chicago Press.. as Rosaldo's discussion of positioning implies.. eds. 69. we challenge this approach to the relationship of knowledge and politics.. 65.." 3 Am. 1940). J. Writing Culture 77." in Clifford & Marcus. The Nuer (Oxford: Oxford University Press.146 LAW AND SOCIAL INQUIRY Evans-Pritchard's study of the Nuer 64 and Carol Greenhouse's study of 65 Georgia Baptists. Anthropology as Cultural Critique"). Id.. "What Is a Dispute About? The Political Interpretation of Social Control. E. that the approach they endorse is one in which critical work "consciously construct[s] . In what follows. T. ed. a knowledge. N. As noted above. Central to this issue. 1985).. Ethnologist 353 (1976). Praying for Justice 9-18 (Ithaca. It is clear from their discussion at 44 and 45. ed.. "66 The Politics of Interpretive Research This brings us to the question of whether and how interpretive analysis of the sociolegal world is a critical activity. 68.: Cornell University Press. Carol J. J. See also Barbara Yngvesson. And see Barbara Yngvesson. eds. The interpretive process resists. "Responses to Grievance Behavior: Extended Cases in a Fishing Community. 1982). The interpretive process. on a dialogue with others that is produced in relations of power. any attempt to locate meaning "outside" these relations in a realm of "objective" science. Interpretive Social Science (Berkeley: University of California Press. Inquiry at 45. See Paul Rabinow & William M. rather than imposing a conventional (scientific) discourse of "cases. 1987). Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (Chicago: University of Chicago Press. 6 They claim that thus far such efforts in the seminar have been "timid" 69 and fall 64.

Scientific research can contribute to creating these conditions by "structural inquiry into the number and nature of sites" for the production of knowledge. appellate litigators." We question this instrumental approach to critical research. Supreme Court justices. Transformation must involve some sense of empowerment. in a fundamental way. The Civil Rights Society: Antidiscrimination. working class disputants. 72. citing Sarat & Silbey. Recognition of the contingency of interpretation.Interpretive Sociolegal Research short of "a truly critical practice of knowledge construction. 1987). has the potential to transform the relationship between researcher and subject in such as way that "indigenous control over knowledge gained in the field can be considerable. Sarat & Silbey cite Kristin Bumiller. 72 An example of this is found in Trubek and Esser's support for research that "gives voice and credibility to those who question. groups. 14 Law & Soc. property owners. exactly. of agency. 14 Law & Soc. But this requires. a specific set of social conditions (globalization of participatory democracy).e. without disempowerment if the researcher is "personally and existentially involved in the social context in which scientific knowledge transforms common sense knowledge. and its location in social practices. and 70. '' 74 while the victims of discrimination are further disempowered by allowing the researcher to serve as their spokesperson. as Santos argues. Ideology and the Social Constructionof Victims (Baltimore: Johns Hopkins Press. and of change in the relative positioning of researcher and subject as well as in a broader field of power relations of which they are both a part. we believe the implications of the interpretive turn are potentially more radical. 71. and institutions in [the] real world" from "a sim- 71 ple process of interpreting meaningful activity in unorthodox locales. 73. It is an approach requiring that the observer become advocate-a stance which suggests that interests are given rather than constructed in the interaction with researchers and others. What is going to happen that is "transformative" once the "voices" of the "victims" are "voiced" by the researcher? What seems to be happening in this example is that the researcher'sauthority is enhanced by the use of the voices of the "voiceless. at 46."7 3 It is unclear in this example as to what. See Rosaldo's discussion of this issues in "From the Door of His Tent" at 90 (cited in note 64). court employees and reformers. Inquiry at 44. 10 Law &? Policy at 140. at 44. divorce lawyers. Trubek & Esser. The collapse might be accomplished. etc. The problem with Trubek and Esser's view of critical research is that it collapses the differences between researcher and subject and thus disempowers both." 70 Drawing on Sarat and Silbey's work. 74. Santos. they distinguish research aimed at a "real impact on persons.. is being transformed. Id. Id. Rather than advocating an appropriation of the "interests" of those we study (i. state legality. Inquiry at 152 (cited in note 3). and also assumes that scholars are those best qualified to represent these interests.). thereby transforming itself". existing practices and institutions. 147 . as Santos suggests.

is seeking to move from a position in which the distance secured by externality condemns us "to see all practice as spectacle. 77. '7 5 A striking example of this shift in relationship is the ethnographic film Two Laws. like that in other sites where sociolegal knowledge is produced.148 LAW AND SOCIAL INQUIRY even determining. which involves a collaboration between Western filmmakers and native Australians. This approach is best articulated by Marcus & Fischer. The product of this work is by definition contingent. 76. . The politics of interpretive sociolegal research demand attention to power because interpretive work is embedded in social relations. MacBean. and the radical decentering of knowledge and of power implied in the entire production. also involves the construction of "interests" and "positions. constitute both a powerful political statement and a critical ethnography. 75. at a specific historical moment." Most specifically. from the rephrasing of questions in response to engagement with those studied. Work such as this suggests that it is important to distinguish the repositioning of researchers vis-a-vis subjects from the notion that it is possible (or desirable) for researchers to promote the political agenda of those they study. in Anthropology as Cultural Critique. we have a brief comment on the interpretive process involved in making sense of interpretive sociolegal research. and thus by definition the politics of making meanings. It is in this sense that interpretive work. the transformed construction of history that results from this. as in Two Laws." 1983 Film Q. Outline of a Theory of Practiceat I (cited in note 36). to the active involvement of subjects in defining the research. Key to this transformation. at 45. was a "repositioning" of the relation of researcher to subject. 76 The construction of the film in a group process of decision-making involving Australians and Westerners. This work. Bourdieu. with particular subjects. observers must be attentive to power and avoid collapsing creative tension into common perspectives in which struggles over meaning. 30 (1983). One Black. are eclipsed. Repositioning can occur in a range of ways. "'Two Laws' from Australia. One White. See James R. since the filmmakers were invited by the native Australians to represent their history and their law on film. produced in relations of power in which researcher and subject are both constrainer and constrained. In conclusion. Id." 77 to an engagement with what we study. This requires self-consciousness about the location of our work in a specific disciplinary practice. particularly the new ethnography. however.